JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
15 October 2020 (*)
(Dumping – Imports of certain seamless pipes and tubes of stainless steel originating in China – Imposition of a definitive anti-dumping duty – Rights of the defence – Calculation of the dumping margin – Analogue country – Injury – Causal link)
In Case T‑307/18,
Zhejiang Jiuli Hi-Tech Metals Co. Ltd, established in Huzhou (China), represented by K. Adamantopoulos and P. Billiet, lawyers,
applicant,
v
European Commission, represented by A. Demeneix, M. França, N. Kuplewatzky and E. Schmidt, acting as Agents,
defendant,
APPLICATION under Article 263 TFEU for annulment of Commission Implementing Regulation (EU) 2018/330 of 5 March 2018 imposing a definitive anti-dumping duty on imports of certain seamless pipes and tubes of stainless steel originating in the People’s Republic of China following an expiry review pursuant to Article 11(2) of Regulation (EU) 2016/1036 of the European Parliament and of the Council (OJ 2018 L 63, p. 15), in so far as it concerns the applicant,
THE GENERAL COURT (Sixth Chamber),
composed of A. Marcoulli (Rapporteur), President, S. Frimodt Nielsen and R. Norkus, Judges,
Registrar: B. Lefebvre, Administrator,
having regard to the written part of the procedure and further to the hearing on 30 January 2020,
gives the following
Judgment
Background to the dispute
1        On 14 December 2011, as a result of a complaint lodged by the Defence Committee of the Seamless Stainless Steel Tubes Industry of the European Union, the Council of the European Union adopted Implementing Regulation (EU) No 1331/2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain seamless pipes and tubes of stainless steel originating in the People’s Republic of China (OJ 2011 L 336, p. 6).
2        Article 1 of Implementing Regulation No 1331/2011 imposed, inter alia, an anti-dumping duty of 56.9% on imports of the product in question manufactured by the companies listed in Annex I to that implementing regulation, namely non-sampled cooperating exporting producers. The applicant, Zhejiang Jiuli Hi-Tech Metals Co. Ltd, was included on that list of companies.
3        On 10 December 2016, the European Commission initiated an expiry review of the measures in force pursuant to Article 11(2) of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21) (‘the basic regulation’).
4        On 5 March 2018, the Commission adopted Implementing Regulation (EU) 2018/330 imposing a definitive anti-dumping duty on imports of certain seamless pipes and tubes of stainless steel originating in the People’s Republic of China following an expiry review pursuant to Article 11(2) of Regulation 2016/1036 (OJ 2018, L 63, p. 15) (‘the contested regulation’).
5        The investigation into the likelihood of continuation or recurrence of dumping covered the period from 1 October 2015 to 30 September 2016 (‘the review investigation period’). The analysis of the trends relevant for the assessment of the likelihood of continuation or recurrence of injury covered the period from 1 January 2013 to the end of the review investigation period.
6        In the course of the review procedure, the applicant was selected, along with another Chinese company, to be included in the sample of exporting producers.
7        In order to assess the likelihood of continuation or recurrence of dumping, the Commission chose India as a market-economy third country for the purpose of establishing normal value in respect of China (‘the analogue country’). Normal value was determined on the basis of the questionnaire reply received from an Indian exporting producer. The export price was calculated in accordance with Article 2(8) of the basic regulation, on the basis of the export prices of two sampled Chinese exporting producers which were actually paid or payable by the first independent customer.
8        Next, the Commission compared the weighted average normal value of each type of the like product in the analogue country with the weighted average export price of the corresponding product type concerned.
9        On that basis, the weighted average dumping margin calculated by the Commission was in the range of 25% to 35% for the two sampled Chinese exporting producers. The Commission concluded from this that dumping had continued during the review investigation period. The Commission also concluded that it was highly likely that the repeal of the anti-dumping measures would result in significant amounts of dumped Chinese imports.
10      The Commission also took the view that, during the review investigation period, the EU industry had suffered material injury and that the repeal of the anti-dumping measures would in all likelihood result in a significant increase in Chinese dumped imports at prices undercutting EU-industry prices.
11      In those circumstances, the Commission concluded that the anti-dumping measures imposed by Implementing Regulation No 1331/2011 should be maintained. Article 1 of the contested regulation thus imposes an anti-dumping duty at rates identical to those set by Implementing Regulation No 1331/2011.
Procedure and forms of order sought
12      By application lodged at the Court Registry on 16 May 2018, the applicant brought the present action.
13      On 11 September 2018, the Commission lodged its defence.
14      On 5 November 2018, the applicant lodged the reply.
15      On 19 December 2018, the Commission lodged the rejoinder.
16      On 4 February 2019, the applicant submitted a request for the adoption by the Court of measures of organisation of procedure, pursuant to Articles 88 and 89 of the Rules of Procedure of the General Court.
17      On 26 February 2019, the Commission submitted its observations on the applicant’s request for the adoption by the Court of measures of organisation of procedure.
18      On 18 November 2019, by way of the measures of organisation of procedure provided for in Article 89(3) of the Rules of Procedure, the Court requested the parties to reply to a number of questions. The parties complied with that request within the prescribed period.
19      The parties presented oral argument and replied to the questions put to them by the Court at the hearing on 30 January 2020.
20      At the hearing, the applicant submitted two documents. Those documents were placed on the file, without prejudice to the Court’s decision as to their admissibility. The Commission was granted a period of time within which to submit its observations on those documents. The applicant was also requested to submit its observations on the Commission’s observations.
21      The oral part of the procedure was closed on 25 February 2020.
22      The applicant claims that the Court should:
–        annul the contested regulation, in so far as it concerns the applicant;
–        order the Commission to pay the costs.
23      The Commission contends that the Court should:
–        dismiss the action as inadmissible;
–        in the alternative, dismiss the action as unfounded;
–        order the applicant to pay the costs.
Law
24      In support of the action, the applicant relies on five pleas in law.
25      The first plea in law alleges infringement of an essential procedural requirement relating to the applicant’s rights of defence, in breach of Article 3(2), Article 16(1), Article 19(2) and (4), Article 20(2) and (4) and Article 21(5) and (7) of the basic regulation and of Articles 3.1, 5.3, 6.1, 6.1.2, 6.2, 6.4, 6.5.1, 6.6 and 6.9 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (GATT) (OJ 1994 L 336, p. 103; ‘the Anti-Dumping Agreement’), which is in Annex 1A to the Agreement establishing the World Trade Organisation (WTO) (OJ 1994 L 336, p. 3).
26      The second plea in law alleges a failure to state reasons and manifest errors of assessment of the law and facts resulting from the application of the analogue country methodology and the selection of the analogue country, in breach of Article 1(2) and (3), Article 2(1) and (7), Article 11(9) and Article 22(a) of the basic regulation, and of Articles 2.2 and 6.10.1 of the Anti-Dumping Agreement.
27      The third plea in law alleges manifest errors of assessment of the law and facts resulting from the adoption of a Product Control Number (PCN) coding which was incorrect for the product concerned, in breach of Article 2(2), (5) and (6), Article 6(7) and (8), Article 11(3), Article 16(1) and Article 18(4) of the basic regulation, and of Articles 2.2.1, 2.2.1.1, 2.2.2, 2.4, 2.6, 6.4, 6.6 and 11.2 of the Anti-Dumping Agreement.
28      The fourth plea in law is based on manifest errors of assessment of the law and facts in so far as the methodology applied materially distorted the calculation of the applicant’s dumping margin, in breach of Article 1(4), Article 2(6), (10) and (11), Article 17(1) and (2), and Article 18(3) of the basic regulation, and of Articles 2.2, 2.2.2, 2.4, 2.4.2, 2.6, 3.6 and 9.2 of the Anti-Dumping Agreement.
29      The fifth plea in law alleges manifest errors of assessment of the law and facts in that the Commission found that there was injury and a likely recurrence of injury, and failed to verify whether there was a causal link, in breach of Article 1(1) to (3), Article 2(9) and (12), Article 3(2), (3), (6), (7) and (9) and Article 11(1) of the basic regulation, and of Articles 1, 2.1, 2.4.2, 3.1, 3.5, 3.7 and 9.3 of the Anti-Dumping Agreement.
Admissibility
Compliance with the requirements of Article 76(d) of the Rules of Procedure
30      The Commission contends that the application does not meet the requirements set out in Article 76(d) of the Rules of Procedure and in paragraph 127 of the Practice rules for the implementation of the Rules of Procedure. The application, it argues, is devoid of legal reasoning and, in the heading of each plea in law, the applicant merely lists a long series of legal provisions without explaining which facts or circumstances of the case may be affected by those provisions. Having analysed each of the pleas in law raised, the Commission considers that it is not possible to address all of the infringements alleged in the headings of those pleas or in the respective concluding paragraphs. The Commission therefore takes the view that it cannot make reasoned arguments in defence and also notes that it is not for the Court to assume the role of the applicant. The action, in its view, is therefore inadmissible in its entirety for failure to comply with the Rules of Procedure.
31      The applicant disputes the Commission’s arguments and maintains that the application meets in full the requirements of Article 76(d) of the Rules of Procedure and of paragraph 127 of the Practice rules for the implementation of the Rules of Procedure. The applicant states that the application contains the subject matter of the proceedings, the pleas in law and arguments relied on in support of the action and a summary of those pleas. Similarly, it submits, it is clear from the text of the application that the pleas in law are given a separate heading, that the applicant’s legal arguments are set out on the basis of those pleas and that the application contains references to the provisions relied on in support of the action. Moreover, the Court knows the law. Lastly, the fact that the Commission has been able to identify and respond to the pleas in law and arguments put forward by the applicant is, in the latter’s view, sufficient to rebut any argument that the action is inadmissible.
32      It follows from Article 21 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first paragraph of Article 53 thereof, and from Article 76(d) of the Rules of Procedure, that an application initiating proceedings must indicate, inter alia, the pleas in law and arguments relied on and a brief statement of those pleas. The information given must be sufficiently clear and precise to enable the defendant to prepare its defence and the General Court to decide the case. In order to ensure legal certainty and the sound administration of justice, it is necessary, if an action is to be admissible, that the essential facts and points of law on which the action is based be apparent from the text of the application itself, even if only stated briefly, provided that the statement is coherent and comprehensible. While the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed to it, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law, which must appear in the application (see judgment of 25 October 2011, Transnational Company ‘Kazchrome’ and ENRC Marketing v Council, T‑192/08, EU:T:2011:619, paragraph 212 and the case-law cited).
33      Thus, any plea which is not adequately articulated in the application initiating proceedings must be held to be inadmissible. Similar requirements are called for where a submission is made in support of a plea in law (judgments of 12 May 2016, Italy v Commission, T‑384/14, EU:T:2016:298, paragraph 38 (not published), and of 26 February 2019, Athletic Club v Commission, T‑679/16, not published, EU:T:2019:112, paragraph 38). A plea may also be declared partly inadmissible in the case where the application does not contain any argument or complaint relating to an alleged infringement of a provision (see, to that effect, judgment of 23 April 2018, Vincenti v EUIPO, T‑747/16, not published, EU:T:2018:211, paragraph 32).
34      In the present case, it should be noted that, in paragraphs 4 to 21 of the application, the applicant summarises the pleas in law relied on, indicates the legal context and presents a summary of the essential facts underlying the dispute.
35      In addition, it must be noted that, in the part of the application relating to the substance of the dispute, the applicant formally relies on five pleas in law. In that context, it should be noted that, even though the Commission contends, in general, that the action in its entirety should be declared inadmissible, it is actually criticising the applicant for a lack of clarity as regards the information in each of the five pleas in law relied on in support of the action and as regards the arguments relied on in support of those pleas.
36      An analysis of each of the five pleas in law relied on in support of the action must therefore be carried out in the light of the case-law cited in paragraphs 32 and 33 above, in order to determine whether the information in the pleas in law and arguments relied on is sufficiently clear and precise.
–       The admissibility of the first plea in law
37      As regards the first plea in law, it is apparent from the very wording of that plea that the applicant seeks a declaration that its rights of defence were infringed.
38      By the first part of that plea, the applicant alleges that the Commission failed to disclose to it a certain amount of essential information which would have been relevant for the defence of the applicant’s interests, in particular in the context of the determination of dumping.
39      In this respect, it should be noted that, among the provisions relied on in the heading of the first plea in law, two specifically concern respect for the rights of defence of interested parties in anti-dumping proceedings, namely Article 20(2) and (4) of the basic regulation. The Commission has, moreover, understood the first part in that sense, since it also refers to those provisions in the defence. The applicant also stated, in the reply and by reference to Article 20(2) and (4) of the basic regulation referred to by the Commission, that the latter did not dispute that ‘the relevant legal basis was set out in the Application’.
40      Furthermore, of the provisions relied on in the heading of the first plea in law, two indirectly concern the rights of the defence, namely Article 19(2) and (4) of the basic regulation. Article 19(2) of the basic regulation provides, inter alia, that ‘interested parties providing confidential information shall be required to provide non-confidential summaries thereof’ and that ‘in exceptional circumstances, such parties may indicate that such information is not capable of being summarised’. Article 19(4) of the basic regulation states, inter alia, that confidential treatment does not preclude the ‘disclosure of the evidence relied on by the Union authorities in so far as is necessary to explain those reasons in court proceedings’ and that ‘[the] disclosure shall take into account the legitimate interests of the parties concerned that their business secrets not be divulged’. In the application, the applicant refers several times to the issue of disclosure of confidential information, where applicable by way of a non-confidential summary. In line with those arguments, in the reply, the applicant takes issue with the Commission, in that the non-confidential file relating to the Indian exporting producer contained blank pages with regard to certain data and that no reasoned claim for confidential treatment had been made. Those arguments can therefore be linked to Article 19(2) and (4) of the basic regulation.
41      The second part of the first plea in law alleges that there was a failure to verify the Indian exporting producer’s data. In that regard, it should be noted that Article 16(1) of the basic regulation is the only provision relied on in the heading of the plea relating to the verification of the information submitted. More specifically, that provision refers to on-spot verification visits that the Commission may carry out. In that respect, the applicant must be regarded as alleging that the Commission failed to carry out on-spot verification visits in relation to the Indian exporting producer and that that failure to verify the Indian exporting producer’s data affected the applicant’s rights of defence. The Commission also understood the applicant’s arguments to that effect and also referred, in its written submissions, to Article 16(1) of the basic regulation relied on by the applicant.
42      As for the other provisions of the basic regulation relied on in the heading of the first plea in law, first, they are not substantially developed in the body of the application and, second, they are not a priori related to the heading of that plea.
43      As regards the provisions of the Anti-Dumping Agreement relied on by the applicant in the heading of the first plea in law, which the applicant alleges were infringed, it should be noted that, given their nature and purpose, the WTO agreements, including the decisions adopted within the framework of those agreements, are not in principle among the rules in the light of which the EU Courts review the legality of measures adopted by the EU institutions. It is only where the European Union intended to implement a particular obligation assumed in the context of the WTO or where the EU measure refers explicitly to specific provisions of WTO agreements that it is for the EU Courts to review the legality of the EU measure in question in the light of the WTO agreements (see, to that effect, judgment of 16 July 2015, Commission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraphs 38 to 41). The applicant, however, has not put forward any of those scenarios. The view must therefore be taken that the wording of the first plea in law in the application is not sufficiently clear and precise as regards the possible application of the WTO rules to the present case in the context of the review of legality to be carried out by the Court.
44      Consequently, it must be held that the first plea in law is admissible in so far as it alleges infringement of the applicant’s rights of defence and is based on Article 16(1), Article 19(2) and (4) and Article 20(2) and (4) of the basic regulation.
–       The admissibility of the second plea in law
45      As regards the second plea in law, it is apparent from the very wording of that plea that it alleges a failure to state reasons and manifest errors of assessment resulting from the application of the analogue country methodology and the selection of the analogue country.
46      This plea comprises, in essence, three parts.
47      By the first part, the applicant criticises the Commission on the ground that it applied the analogue country methodology provided for in Article 2(7) of the basic regulation. In support of that criticism, the applicant clearly alleges a breach of Section 15(a) and (d) of the Protocol on the Accession of the People’s Republic of China to the WTO (‘the Protocol on the Accession of China to the WTO’) and of Article 22(a) of the basic regulation.
48      By the second part, the applicant alleges a breach of Article 2(7) of the basic regulation, on the assumption that that provision is applicable, in the choice of India as the analogue country. The Commission has understood the scope of the applicant’s arguments in that regard.
49      By the third part, the applicant submits that the Commission failed to state reasons for the use of Article 2(7) of the basic regulation.
50      As regards the other provisions of the basic regulation or of the Anti-Dumping Agreement relied on in the heading of the second plea in law, they should be disregarded for the same reasons as those set out in paragraphs 42 and 43 above.
51      The second plea in law must therefore be held to be admissible in so far as it alleges a failure to state reasons and manifest errors of assessment resulting from the application of the analogue country method and the selection of the analogue country and is based on Article 2(7) and Article 22(a) of the basic regulation and on Section 15(a) and (d) of the Protocol on the Accession of China to the WTO.
–       The admissibility of the third plea in law
52      As regards the third plea in law, it is apparent from the very wording of that plea that the applicant criticises the Commission on the ground that it made manifest errors of assessment resulting from the adoption of an incorrect PCN coding for the product concerned.
53      In the first part of that plea, the applicant criticises the Commission on the ground that it failed to take account of the differences in production methods when drawing up the PCNs. Although the applicant does not expressly link this part to a specific provision of the basic regulation relied on in the heading of that plea, it should be noted, at the very least, that the Commission is required to carry out fair price comparisons under Article 2(10) of the basic regulation, referred to in the body of the application, and that the PCN coding follows that logic.
54      In the second part, the applicant alleges that the Commission failed to take account of the differences in the use of the products when drawing up the PCNs. This part may also relate to a breach of Article 2(10) of the basic regulation, referred to in the body of the application.
55      In the third part, the applicant submits that the Commission wrongly disregarded known deficiencies in the PCN coding. More specifically, in addition to relying on Article 2(10) of the basic regulation, the applicant complains that the Commission did not provide adequate reasons for its refusal to correct the PCN coding errors. This, in its view, also constitutes a breach of Article 18(4) of the basic regulation. It is also apparent from this part that the applicant alleges that the Commission refused to grant its request for an interim review, thereby breaching Article 11(3) of the basic regulation and the principle of sound administration.
56      The Commission was able to respond to all of the applicant’s arguments in that respect.
57      As regards the other provisions of the basic regulation or the Anti-Dumping Agreement relied on in the heading of the third plea in law, they should be disregarded for the same reasons as those set out in paragraphs 42 and 43 above.
58      Accordingly, the third plea in law must be held to be admissible in so far as it alleges manifest errors of assessment resulting from the adoption of an incorrect PCN coding for the product concerned and is based on Article 2(10), Article 11(3) and Article 18(4) of the basic regulation and on the principle of sound administration.
–       The admissibility of the fourth plea in law
59      As regards the fourth plea in law, it is apparent from the wording of that plea that the applicant alleges that the Commission made manifest errors of assessment when determining the calculation of the applicant’s dumping margin. The applicant’s various heads of complaint, of which there are seven, are clear from the application and the Commission was able to respond to them in its written submissions.
60      As regards the provisions relied on in the heading of that plea, only Article 2(10) and (11) relate directly to price comparability and to the calculation of the dumping margin. The applicant cites it several times in support of its heads of complaint. Furthermore, in the body of the application, the applicant refers, in a sufficiently comprehensible manner, having regard to the developments contained therein, to Article 2(7) (second and fifth heads of complaint) and to Article 18(4) of the basic regulation (fifth head of complaint).
61      As regards the other provisions of the basic regulation or the Anti-Dumping Agreement relied on in the heading of the fourth plea in law, they should be disregarded for the same reasons as those set out in paragraphs 42 and 43 above.
62      Accordingly, it must be held that the fourth plea in law is admissible in so far as it alleges manifest errors of assessment with regard to the determination of the applicant’s dumping margin and is based on Article 2(7), (10) and (11) and Article 18(4) of the basic regulation.
–       The admissibility of the fifth plea in law
63      As regards the fifth plea in law, it is apparent from the wording of that plea that the applicant alleges that the Commission made manifest errors of assessment in its finding that there was injury and a likelihood that it would recur, and the applicant alleges that the Commission failed to verify whether there was a causal link.
64      However, it follows from the applicant’s written pleadings that its arguments focus on the existence of a causal link, under Article 3(6) and (7) of the basic regulation, which is relied on in the heading of that plea. Furthermore, the applicant’s arguments come broadly within the scope of Article 11(1) of the basic regulation, as relied on in the heading of that plea, and within the scope of the expiry review of the anti-dumping measures. Furthermore, the applicant also alleges in the body of the application, in a detailed manner, a breach of Article 9(5) of the basic regulation, in that the Commission treated the Chinese imports in a discriminatory manner in comparison with the Indian imports. The Commission was able to express its views on the arguments put forward by the applicant.
65      As regards the other provisions of the basic regulation or the Anti-Dumping Agreement relied on in the heading of the fifth plea in law, they should be disregarded for the same reasons as those set out in paragraphs 42 and 43 above.
66      It must therefore be held that the fifth plea in law is admissible in so far as it alleges manifest errors of assessment in the finding of the existence and likelihood of recurrence of injury, alleges that the Commission failed to verify the existence of a causal link, and is based on Article 3(6) and (7), Article 9(5) and Article 11(1) of the basic regulation.
The applicant’s interest in bringing proceedings and standing to bring proceedings
67      The Commission argues that the applicant has standing to bring proceedings against the contested regulation to a limited extent. The Commission observes, in this regard, that the procedure which led to the contested regulation never allowed the rate of the applicant’s anti-dumping duty to be reduced. The applicant’s standing to bring proceedings is limited to challenging the existence of dumping and the likelihood of continuation of injury. However, the applicant does not claim that there were no dumped imports, but only that its dumping margin should have been established differently. That is why, in the view of the Commission, the question of the applicant’s standing to bring proceedings is relevant. Furthermore, the applicant requests a review of the methodology taken over from the original investigation without providing the slightest evidence of a lasting change of circumstances. In particular, the applicant acknowledged in its reply that the first to fourth pleas in law concern the calculation of its own dumping margin. The applicant therefore does not have standing to raise those four pleas, which should be regarded as inadmissible.
68      The applicant points out that, despite its arguments, the Commission acknowledges that the applicant has standing to bring proceedings, at least in order to challenge the continued existence of dumping and the likelihood of continuation of injury. The applicant also notes that the Commission’s finding that dumping continued during the expiry review investigation period constitutes an essential element of the contested regulation. By its first to fourth pleas in law, the applicant claims that the Commission infringed its rights of defence and made manifest errors of assessment in the calculation of its dumping margin. The Commission would have arrived at different conclusions and would not have found there to be a dumping margin if it had respected the applicant’s rights of defence and not made the errors described in the application. On several occasions in its written pleadings, the applicant called into question the very existence of dumping on its part.
69      As a preliminary point, it should be noted that the Commission does not call into question the applicant’s interest in bringing proceedings or its standing to bring proceedings, in so far as the action seeks to challenge the existence of dumping and the existence or likelihood of a continuation of injury.
70      Furthermore, it follows from the Commission’s arguments that it specifically questions the admissibility of the first to fourth pleas in law. In that respect, the objection of inadmissibility raised by the Commission must be regarded as closely linked to the consideration of the merits of those pleas in law, as it acknowledged at the hearing.
71      In addition, it should be noted that the EU Courts are entitled to assess whether, according to the circumstances of each case, the proper administration of justice justifies the dismissal of the action on the merits without first ruling on the grounds of inadmissibility raised by the defendant (see, to that effect, judgments of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraph 52, and of 23 March 2004, France v Commission, C‑233/02, EU:C:2004:173, paragraph 26). That principle also applies to the admissibility of a plea in law (see, to that effect, judgment of 5 April 2017, France v Commission, T‑344/15, EU:T:2017:250, paragraph 92).
72      In the circumstances of the present case, the Court considers that it is appropriate to examine the first to fourth pleas in law raised by the applicant, without first ruling on the admissibility of those pleas.
The merits
The first plea in law, alleging infringement of the applicant’s rights of defence, in so far as that plea is based on Article 16(1), Article 19(2) and (4), and Article 20(2) and (4) of the basic regulation
73      The applicant, referring in particular to recitals 12 and 29 of the basic regulation, notes the importance of the rights of the defence in anti-dumping proceedings. The applicant also refers to the case-law of the EU Courts and to decisions of the WTO Dispute Settlement Body concerning the rights of the defence of interested parties in those proceedings.
74      In the present case, first, the applicant claims that the Commission did not disclose essential information concerning the calculation of the dumping margin. The applicant puts forward 11 sets of infringements of the rights of the defence relating, in essence, to the following information: the Indian exporting producer’s PCNs; the manner in which the coefficients were obtained and applied by the Commission to calculate normal values; the method used by the Commission to calculate the normal value of the product category ‘Casing and tubing, of a kind used in drilling for oil and gas’ and whether profitability and representativity tests were performed; how the Commission ensured that special types of seamless pipes and tubes of stainless steel for military and nuclear uses were not unfairly compared with the applicant’s exports of standard commercial seamless pipes and tubes of stainless steel to the European Union; the full list of PCNs sold by the EU industry and by United States producers for the purposes of understanding how the coefficients were calculated; the cost data (possibly in the form of ranges) of the EU and US producers used to determine the coefficients; clarifications on the Commission’s use of unverified data from the Indian exporting producer; and clarifications on several unexplained flaws in the Commission’s coefficient calculations.
75      The applicant argues, in particular, that the failure to disclose the PCNs used by the Commission or the full list of the PCNs of the Indian, US or EU producers makes the calculation of dumping margins unclear. The applicant submits that, if it had been given access to relevant information, it would have submitted further observations in support of its arguments and the Commission’s findings could have been different.
76      Second, the applicant contends, the Commission failed to carry out essential verifications to support its findings. In particular, the Commission’s attention was drawn to the difference in productivity and profit margin between the applicant and the Indian exporting producer. Furthermore, the Commission failed to verify the existence of differences in costs relating to different production methods. Moreover, the Commission failed to verify whether information received from the Indian exporting producer was correct, or whether high-end military and nuclear products were included in the definition of the like product. Furthermore, by refusing to provide evidence in support of its assertions, the Commission failed to discharge its burden of proof.
77      Third, the applicant refers to circumstances aggravating the Commission’s infringement of the rights of the defence, namely the fact that the Indian exporting producer competes against the applicant on the EU market, that the Indian exporting producer generated abnormally high profits from very limited sales in India, that the comparable products of that producer accounted for a third of its total exports, that the Commission did not refer to PCNs in its dumping margin calculations, and that the reasons put forward to justify the failure to disclose PCN data from EU and US producers were incorrect.
78      The applicant adds that the Commission never disclosed to it any relevant information at all on the Indian exporting producer. That exporting producer did not submit any substantiated request for confidential treatment, and it was only in the defence that the applicant was informed of the Indian exporting producer’s non-cooperation. The Commission ought, in particular, to have informed the applicant of the Indian exporting producer’s non-cooperation. The information provided by the Indian exporting producer does not constitute ‘positive evidence’ capable of being used by the Commission. The latter should have either designated another exporting producer or terminated the review. The applicant also points out that, after the adoption of the contested regulation, the Indian exporting producer set up a joint venture with an EU producer in the sector of the product in question. That EU producer was a complainant in the review procedure. Moreover, with regard to high-end products for military and nuclear use, the applicant states that the scope of the product in question does nothing to detract from the need to make a fair comparison per PCN and, where necessary, to make adjustments. Lastly, the applicant points out the lack of information concerning the calculation of the normal value for casing and tubing used in drilling for oil and gas, which the Indian exporting producer did not produce.
79      The Commission disputes the applicant’s arguments.
80      Under Article 20(2) of the basic regulation, the parties mentioned in Article 20(1) may request final disclosure of the essential facts and considerations on the basis of which it is intended to recommend the imposition of definitive measures, or the termination of an investigation or proceedings without the imposition of measures. In addition, Article 20(4) of the basic regulation stipulates that final disclosure is to be given in writing. It must be made, due regard being had to the protection of confidential information, as soon as possible and, normally, no later than one month prior to the initiation of the procedures set out in Article 9 of the basic regulation. Where the Commission is not in a position to disclose certain facts or considerations at that time, they must be disclosed as soon as possible thereafter.
81      Furthermore, under Article 19(2) of the basic regulation, interested parties providing confidential information are required to provide non-confidential summaries thereof. In exceptional circumstances, those parties may indicate that such information is not capable of being summarised. Article 19(4) of the basic regulation states, inter alia, that confidential treatment does not preclude the disclosure of the evidence relied upon by the EU authorities in so far as is necessary to explain those reasons in court proceedings. Such disclosure must take into account the legitimate interest of the parties concerned that their business secrets not be divulged.
82      The objective of Article 19 of the basic regulation is to protect not only the business secrets but also the defence rights of the other parties to the anti-dumping proceeding. In that context, use by the Commission of information of which no non-confidential summary was supplied cannot be relied upon by parties to an anti-dumping proceeding as a ground for annulment of an anti-dumping measure unless they are able to demonstrate that use of that information constituted an infringement of their rights of defence (judgment of 10 March 2009, Interpipe Niko Tube and Interpipe NTRP v Council, T‑249/06, EU:T:2009:62, paragraph 131).
83      Furthermore, according to settled case-law, respect for the rights of the defence is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of EU law which must be guaranteed even in the absence of any rules governing the proceedings in question (see judgment of 1 October 2009, Foshan Shunde Yongjian Housewares & Hardware v Council, C‑141/08 P, EU:C:2009:598, paragraph 83 and the case-law cited).
84      In accordance with that principle, the undertakings concerned should have been placed in a position during the administrative procedure in which they could effectively make known their views on the correctness and relevance of the facts and circumstances alleged and on the evidence presented by the Commission in support of its allegation concerning the existence of dumping and the resultant injury (judgments of 27 June 1991, Al-Jubail Fertilizer v Council, C‑49/88, EU:C:1991:276, paragraph 17, and 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 76).
85      In that context, the Commission must make every effort, as far as compatible with the obligation not to disclose business secrets, to provide the undertakings concerned with information relevant to the defence of their interests, choosing, if necessary on its own initiative, the appropriate means of providing such information (see, to that effect, judgments of 20 March 1985, Timex v Council and Commission, 264/82, EU:C:1985:119, paragraph 30, and of 1 June 2017, Changmao Biochemical Engineering v Council, T‑442/12, EU:T:2017:372, paragraph 141).
86      It is also apparent from the case-law that the sufficiency of the information provided by the Commission must be assessed in relation to how specific the request for information was (see, to that effect, judgments of 18 December 1997, Ajinomoto and NutraSweet v Council, T‑159/94 and T‑160/94, EU:T:1997:209, paragraph 93, and of 1 June 2017, Changmao Biochemical Engineering v Council, T‑442/12, EU:T:2017:372, paragraph 143).
87      Finally, it must be recalled that the applicant cannot be required to show that the decision of the institutions would have been different in content, but simply that such a possibility cannot be totally ruled out, since the applicant would have been better able to defend itself had there been no procedural error thus in fact affecting the rights of defence (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, paragraphs 78 and 79).
88      By contrast, it is for the applicant to establish specifically how it would have been better able to ensure its defence in the absence of such an irregularity, without merely pleading that it was impossible for it to provide comments on hypothetical situations (judgment of 1 June 2017, Changmao Biochemical Engineering v Council, T‑442/12, EU:T:2017:372, paragraph 145).
89      In the present case, the first plea in law is based, in essence, on two parts. In the first part, the applicant criticises the Commission on the ground that it did not have available the information relevant to the defence of the applicant’s interests. In the second part, the applicant alleges that the Commission failed to carry out verifications of the Indian exporting producer’s data, despite requests for it to do so. The applicant also refers to ‘aggravating circumstances’ in support of its arguments.
–       The first part of the first plea in law, alleging failure to communicate information relevant to the defence of the applicant’s interests
90      As a preliminary point, it is appropriate to recall the methodology used by the Commission to calculate the applicant’s dumping margin and, in particular, normal value, before analysing the various grounds of complaint raised by the applicant in support of the first part.
91      In order to analyse the likelihood of a continuation or recurrence of dumping, the Commission decided to use India as an analogue country for the purposes of establishing normal value for China. Normal value was determined on the basis of the reply to the questionnaire received from an Indian exporting producer.
92      In that context, the Commission identified the product types sold on the domestic market of the analogue country that were identical or comparable to the product types sold for export to the European Union by the exporting producers in China (‘product type D’). For those product types, normal value was based on the actual domestic price.
93      For the product types exported without corresponding domestic sales in the analogue country (‘product type C’), normal value was determined on the basis of the domestic price of the most closely resembling product type, taking into account the characteristics of the product type as defined by the PCN, namely product category, external diameter, wall thickness, steel grade, testing, tube extremity, finishing and length. Those various characteristics were reflected in ‘coefficients’ which were applied to the domestic price of the most closely resembling product type. Those coefficients were determined, where necessary, on the basis of information from ‘other producers’. Those ‘other producers’ are identified in the contested regulation as being producers in the United States of America and in the European Union.
94      Furthermore, the basis for normal value of the product category ‘Casing and tubing, of a kind used in drilling for oil and gas’ was determined on the basis of the questionnaire replies of the EU producers.
95      The applicant criticises the Commission on the ground that it failed to disclose to it, despite its requests, the following information:
–        the Indian exporting producer’s PCNs;
–        the manner in which the coefficients were determined and applied by the Commission to calculate normal value;
–        the methodology used by the Commission to calculate normal value for the product category ‘Casing and tubing, of a kind used in drilling for oil and gas’ and whether profitability and representativity tests were carried out;
–        the manner in which the Commission ensured that the special types of seamless stainless steel pipes and tubes for military and nuclear use were not unfairly compared with the standard commercial seamless stainless steel pipes and tubes exported by the applicant to the European Union;
–        the full list of PCNs sold by the EU industry and by US producers in order to understand how the coefficients were determined;
–        the cost data, possibly in the form of data ranges, of the EU and US producers which were used to calculate the coefficients;
–        clarifications on the Commission’s use of unverified data provided by the Indian exporting producer;
–        clarifications on several unexplained flaws in the Commission’s coefficient calculations.
96      In that regard, first, it is appropriate to note the various exchanges which took place between the Commission and the applicant during the administrative procedure.
97      On 27 June 2017, the applicant expressed concerns about the PCN coding method adopted by the Commission, in particular with regard to the inclusion of seamless stainless steel pipes and tubes which could be used for military purposes.
98      On 9 October 2017, the Commission replied to the applicant, indicating, in essence, that no criticism had been made up to that point regarding the PCN coding, and invited the applicant to submit a request, as necessary, for an interim review concerning the scope of the product concerned.
99      On 27 November 2017, the Commission sent to the applicant, in accordance with Article 20 of the basic regulation, the final disclosure document setting out the essential facts and considerations on the basis of which the Commission intended to impose anti-dumping duties on the product concerned.
100    That final disclosure document contained an Annex 2 which set out the calculation of the applicant’s dumping margin. In the final disclosure document, the calculation submitted by the Commission referred, first of all, to the export prices for the PCNs exported by the applicant to the European Union during the review investigation period, second, to the ranges of weighted average normal values and dumping margins for all of the PCNs and, finally, to the applicant’s dumping margin.
101    On 6 December 2017, the applicant submitted its comments on the final disclosure document. In particular, it requested clarifications as regards the exclusion of products for military and nuclear use, as well as the list of the Indian exporting producer’s PCNs (for the purposes of determining products of type D), the coefficients used and their sources (for products of type C).
102    On 7 December 2017, the Commission sent to the applicant a revised Annex 2 to the final disclosure document. In addition, that annex contained information on product types D and C and, in the latter case, the most closely resembling product type used for the comparison and the coefficients calculated. The Commission also made it clear that, even if product type C were to be removed from the calculation, there would still continue to be a dumping margin.
103    On 8 December 2017, the applicant sent additional comments to the Commission. In that context, the applicant requested, in particular, all the PCNs of the EU and US producers, which would identify the PCNs used for the determination of the coefficients, and asked for explanations as to the methodology used to calculate those coefficients. The applicant also requested all of the PCNs of the Indian exporting producer as well as the dumping margins per PCN, at least in the form of ranges.
104    By letter dated 22 December 2017, the Commission sent to the applicant a new version of the revised Annex 2 to the final disclosure document. In addition to the information sent on 7 December 2017, that annex included the ranges of normal values and dumping margins per PCN, allowing the applicant, inter alia, to determine the dumping margins for product types D and C, the coefficients calculated and an example of how they were used.
105    Between 26 and 29 December 2017, the Commission provided clarifications, by email, on certain questions raised by the applicant regarding the methodology used to calculate normal value.
106    On 2 January 2018, the applicant submitted observations on the information made available to it by the Commission on 22 December 2017. In particular, the applicant challenged the fact that there was no on-spot verification of the Indian exporting producer’s data and requested further information concerning the determination of the coefficients. Furthermore, the applicant argued that, if the coefficients were corrected, there would be no dumping margin for the applicant.
107    On 24 January 2018, following a hearing with the Hearing Officer, the Commission provided the applicant with clarifications, in particular as regards the methodology used to calculate the coefficients, and provided a new version of the revised Annex 2 to the final disclosure document. The revision of that annex took account, in particular, of the applicant’s comments on certain coefficients. This resulted in a decrease of the applicant’s dumping margin.
108    On 29 January 2018, the applicant submitted observations on the clarifications provided by the Commission on 24 January 2018. In particular, the applicant requested further information concerning the Indian exporting producer’s sales and PCNs, the volumes and costs of production for each PCN, in the form of ranges, of the EU and US producers and an indication of the producer chosen for determination of the production costs used for the calculation of the coefficients.
109    On 5 March 2018, the contested regulation was adopted by the Commission.
110    It follows from the foregoing that the following information was available to the applicant at a stage which enabled it to put forward its arguments:
–        the PCNs exported by the applicant following the coding adopted by the Commission and the export prices;
–        for each PCN used in the determination of normal value, the existence (product type D) or not (product type C) of a direct matching with the exported PCNs;
–        for PCNs relating to product type C, an indication of the most closely resembling product type used as a basis for normal value;
–        a range of normal value for each PCN corresponding to the PCN exported to the European Union (where appropriate after applying a coefficient);
–        a range of dumping margins for each PCN exported to the European Union;
–        a list of the coefficients used according to the numbers or letters forming the PCNs;
–        an example of how the coefficients were applied.
111    Second, the explanations provided by the Commission concerning the methodology used in the present case should be noted.
112    First of all, in the final disclosure document, in the first place, the Commission pointed out that India had been chosen as the analogue country and that one Indian exporting producer had replied to the questionnaire. In the second place, the Commission stated that product types of that producer which were identical to or comparable with those of the Chinese exporting producers had been identified and that domestic sales of those product types had been found to be representative. In the third place, the Commission pointed out that normal value for the non-matching product types had been determined on the basis of the domestic price of the most closely resembling product types and that coefficients had been applied to the normal value of the most closely resembling product types to take into account the characteristics of the product types. In the fourth place, the Commission indicated that, where appropriate, the information submitted by the EU and US producers had been used to determine those coefficients and that for two characteristics (testing and tube extremity) no upward coefficient had been applied. In the fifth place, the Commission clarified that the Indian exporting producer’s product range did not include products for nuclear or military use.
113    Subsequently, by letter dated 22 December 2017, the Commission explained the methodology used to apply the coefficients to the normal value of the product type without a direct matching, in particular by way of example. That example shows that each difference in the PCN’s composition resulted in the application of a coefficient corresponding to that difference, and then those differences in coefficients were applied to the initial normal values of the most closely resembling product type in order to give adjusted normal values.
114    In addition, in its emails sent to the applicant between 26 and 29 December 2017, the Commission clarified the methodology used and, in particular, the fact that no coefficient had been calculated by comparing the production cost of a US producer with the production cost of an EU producer and made it clear that the production costs used were weighted average costs per PCN. By contrast, the Commission refused to give access to the production costs per PCN of EU and US producers, possibly in an aggregated version, or to the identity of producers per PCN. The Commission highlighted reasons of confidentiality, particularly in view of the fact that certain product types could be produced by a limited number of producers or even by one producer only.
115    Finally, in the letter of 24 January 2018, the Commission clarified that the Indian exporting producer did not produce products belonging to the category ‘Casing and tubing, of a kind used in drilling for oil and gas’, steel grade 13%Cr with an external diameter exceeding 168.3 mm. For that product category, the Commission indicated that it had used data from EU producers for the most closely resembling product type. Furthermore, the Commission indicated that, following comments made by the applicant during the hearing before the Hearing Officer, the Commission had revised its coefficients for the ‘steel grade’ and ‘external diameter’ characteristics of the PCNs. In addition, the Commission provided a detailed example of the methodology used to calculate a coefficient. Finally, the Commission explained that it could not disclose cost data per PCN, including ranges, for the EU and US producers which had enabled the coefficients to be calculated.
116    In view of all of those factors, the view must be taken that the Commission made available to the applicant the essential facts and considerations on the basis of which it was recommended that definitive measures be imposed, in accordance with Article 20(2) of the basic regulation, and that the applicant was able effectively to make known its point of view in that regard. In particular, the applicant was placed in a position to understand the methodology used by the Commission to calculate normal value and obtained the ranges of the Indian exporting producer’s normal values, adjusted where appropriate by coefficients, the most closely resembling product types used where there was no direct matching with those of the Indian exporting producer, the coefficients used and the method of calculating and applying them in the present case.
117    The complaints put forward by the applicant in the first part of the first plea in law cannot invalidate that conclusion.
118    With regard to the Indian exporting producer’s PCNs other than those used to calculate the dumping margin, the applicant emphasises in particular the need to ensure that the product type chosen by the Commission was indeed the one most closely resembling the product type exported to the European Union for product type C. In the first place, it should be noted that the fact that one product type closely resembles another product type simply limits the adjustments to be made to the normal value by using the appropriate coefficients. However, even if the Commission erred in its determination of the most closely resembling product type to be compared, that does not mean that the determination of normal value was incorrect since, moreover, appropriate coefficients were applied to adjust the normal value of that product. In the second place, the applicant mostly makes mere assertions in its pleadings. For example, the applicant states in the application, with respect to one product type, that it is ‘highly questionable’ whether there are no other more closely resembling PCNs. Those are vague and unsubstantiated assertions which do not enable the Court to assess either their merits or their scope, given, moreover, that the Commission indicated what product type was, in its opinion, the most closely resembling.
119    Consequently, the fact that the applicant was not aware of all of the Indian exporting producer’s PCNs did not, in the present case, result in an infringement of the applicant’s rights of defence.
120    As regards the manner in which the coefficients were obtained and applied, the complete list of PCNs sold by the EU industry and by the US producers, the data on their production cost, as well as a lack of clarification as to several unexplained flaws in the calculations, the applicant essentially alleges that the Commission, in essence, lacked information as to the calculation of the coefficients.
121    In the first place, it should be noted that the methodology used in the present case was explained to the applicant during the administrative procedure. In particular, in its letter of 24 January 2018, the Commission took a specific example to explain the method for calculating a particular coefficient. It is apparent from that explanation, which related to the characteristics ‘steel grade 03’ and ‘steel grade 10’, that the Commission calculated the average cost of production, for a producer, of product types with the same steel grade. Next, the two average production costs were compared, giving a proportion expressed as a coefficient. As the Commission confirmed at the hearing, all of the PCNs with the same grade of steel were used for that purpose. That method, as explained by the Commission in its letter of 24 January 2018, was understood by the applicant in that sense, as is apparent, in particular, from a presentation made on 5 February 2018 at a hearing with the Hearing Officer. The applicant also confirmed in its pleadings that it understood that ‘the coefficients were calculated by comparing costs of two groups of PCNs’.
122    In the second place, even though it did not obtain the list of PCNs of the EU and US producers, nor their production costs, the applicant was able to set out its views on the reality of the coefficients calculated by the Commission. At the hearing before the Hearing Officer on 19 January 2018, the applicant argued that the coefficients calculated by the Commission were incorrect, in particular with regard to the ‘steel grade’ and ‘external diameter’ characteristics of the PCNs. The applicant’s observations led the Commission to modify the coefficients for those two characteristics, as set out in its letter of 24 January 2018. At the hearing before the Hearing Officer on 5 February 2018, the applicant reiterated its specific criticisms of the coefficients calculated by the Commission.
123    In the third place, the applicant was also able to present to the Commission, following the hearing before the Hearing Officer on 19 January 2018, an alternative calculation based on data from the EU producers.
124    It follows from those factors that the applicant was able to put forward its views on the reality of the coefficients calculated by the Commission and even, on the basis of public data, to submit an alternative calculation to that of the Commission (see, to that effect, judgment of 4 March 2010, Foshan City Nanhai Golden Step Industrial v Council, T‑410/06, EU:T:2010:70, paragraph 81).
125    With regard to the methodology used by the Commission to calculate normal value for the product category ‘Casing and tubing, of a kind used in drilling for oil and gas’ and whether profitability and representativity tests were carried out, it is, admittedly, correct that the Commission merely indicated, during the administrative procedure, that, for that product category, it had used data from the EU producers for the most closely resembling product type. However, it should be noted that the general methodology for determining normal value for product type C, in particular the use of the domestic price of the most closely matching product type, was explained to the applicant in the final disclosure document. No evidence, in particular put forward by the applicant, suggests that that methodology, which was applied on the basis of the Indian exporting producer’s data, was different when data from EU producers were used.
126    Furthermore, it should be noted that the most closely resembling product type used was indicated clearly in the table for the calculation of the applicant’s dumping margin. The applicant was therefore in a position to identify the PCNs which had been the subject of the calculation at issue and the related ranges of normal values and dumping. The presentation made by the applicant before the Hearing Officer at the hearing of 5 February 2018 shows, moreover, that the applicant was able to identify the PCNs to which the use of the EU producers’ data related.
127    Furthermore, as regards the verification of profitability and representativity of the EU producers’ sales in question, it should be noted that those requirements, as set out in Article 2(2) and (4) of the basic regulation, apply to sales of the like product for consumption on the domestic market of the exporting country, where those sales are used to determine normal value. Although the Commission was able to verify the representativity and profitability of the Indian exporting producer’s sales for product type D, as set out in recitals 49 and 50 of the contested regulation, it should be noted that, for product type C, there were no sales on the domestic market of the analogue country. Therefore, as regards normal values which were determined on a basis other than the price of the products concerned in the analogue country, there is no reason to consider that the Commission was under an obligation to carry out the verifications in question. In those circumstances, even if the applicant had been able to provide more arguments in that regard, there is nothing to suggest that it could have defended itself better. In any event, the applicant has still failed to demonstrate that such a methodological error, assuming it to be established, affected the Commission’s finding that dumping continued during the review investigation period. In particular, it should be noted that, with regard to the analysis of profitability of the sales in question referred to by the applicant, that analysis could have allowed the Commission, subject to conditions, to disregard certain sales made at prices below the fixed and variable unit production costs plus selling, general and administrative costs, as provided for in Article 2(4) of the basic regulation. The failure to take account of those sales, which are normally made at prices below other sales, had the effect, a priori, of increasing the normal value and, consequently, the dumping margin.
128    As regards the manner in which the Commission ensured that the special types of seamless stainless steel pipes and tubes for military and nuclear use were not unfairly compared with the seamless stainless steel pipes and tubes for standard commercial use exported by the applicant to the European Union, it is sufficient to note that the Commission specifically indicated to the applicant, in the general disclosure document, that the Indian exporting producer’s product range did not include those product types. That is, in essence, in line with the reasoning set out in recitals 60 and 66 of the contested regulation, to which the Commission adds that comparable sales on the Indian domestic market did not include special grades of steel normally used for specific military or nuclear products. The applicant was therefore given the opportunity to put forward its views in that regard.
129    As regards the clarifications on the Commission’s use of unverified data provided by the Indian exporting producer, it is sufficient to note that the Commission indicated in the final disclosure document that it had considered the data provided by that producer to be accurate and that no verification visit had been carried out. That is, in essence, in line with the reasoning set out in recital 45 of the contested regulation. The applicant was therefore given the opportunity to put forward its views in that regard.
130    Finally, with regard to the arguments put forward at the reply stage that the Indian exporting producer’s non-confidential file contained blank material, and without it being necessary to decide on the admissibility of that material, it is sufficient to note that those arguments are drafted in vague terms and do not make it possible to assess the extent to which the applicant’s rights of defence were allegedly infringed. Furthermore, it is clear from the Court’s case-law that it is for the interested parties in an anti-dumping investigation procedure to place the institutions in a position to assess the difficulties which the absence of an element in the information put at their disposal might cause them. A fortiori, such an interested party is not entitled to complain before the EU Courts that information was not placed at its disposal if, in the course of the investigation procedure that led to the contested anti-dumping regulation, it had not made any request to the institutions in relation to that particular information (see judgment of 14 December 2017, AETMD v Council, T‑460/14, not published, EU:T:2017:916, paragraph 66 and the case-law cited). In the reply, the applicant did not state that it had made any specific request in that regard during the administrative procedure. Furthermore, in so far as the applicant’s claims examined previously can be reconciled with the data withheld from the non-confidential file of the Indian exporting producer, it must be held, on the same grounds, that the applicant’s rights of defence were not infringed.
131    For all of those reasons, the first part of the first plea in law must be rejected as unfounded.
–       The second part of the first plea in law, alleging a failure to verify the Indian exporting producer’s data
132    In the first place, the applicant essentially contends that the Commission did not verify the information submitted by the Indian exporting producer, even though there were doubts with regard to that exporting producer’s productivity and profit margin.
133    The applicant refers, in the heading of the first plea in law, to Article 16(1) of the basic regulation, the only provision relied on in relation to verification of the information submitted.
134    Article 16(1) of the basic regulation provides that ‘the Commission shall, where it considers it appropriate, carry out visits to examine the records of importers, exporters, traders, agents, producers, trade associations and organisations and to verify information provided on dumping and injury’ and that, ‘in the absence of a proper and timely reply, the Commission may choose not to carry out a verification visit’.
135    In the present case, it should be noted that, as indicated in recitals 44 and 45 of the contested regulation, the Commission did not carry out a verification visit to the Indian exporting producer. That absence of a verification visit was, as stated in the Commission’s pleadings, as a result of the Indian exporting producer’s refusal to agree to such a visit. In that regard, it should be noted that, under Article 16(2) of the basic regulation, investigations in third countries are subject to the agreement of the firms concerned. The applicant cannot therefore criticise the Commission for failing to verify data of the Indian exporting producer even though the latter refused an on-spot verification visit.
136    Furthermore, it should be noted that the applicant was fully aware that the Indian exporting producer had refused the on-spot verification visit.
137    In its observations of 29 January 2018, following the hearing with the Hearing Officer on 24 January 2018, the applicant indicated that it was aware that ‘the Indian analogue producer … did not accept the on-the-spot verification’.
138    The applicant was therefore fully aware that the Commission was not in a position to carry out a verification visit at the premises of the Indian exporting producer.
139    As regards the reference, at the reply stage, to Article 18(6) of the basic regulation and the contention that the Commission should have disregarded the Indian exporting producer’s data since the Commission had acknowledged that that exporting producer had stopped cooperating, the applicant’s arguments in that regard must be rejected. Article 18(6) of the basic regulation was not relied on at the application stage. It is apparent from the combined provisions of Article 76(d) and Article 84(1) of the Rules of Procedure that the application initiating proceedings must indicate the subject matter of the proceedings and contain a summary of the pleas in law on which an application is based and that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. However, a submission, or an argument, which may be regarded as amplifying a submission made previously, whether directly or by implication, in the application initiating proceedings, and which is closely connected therewith, will be declared admissible (judgment of 10 October 2012, Gem-Year and Jinn-Well Auto-Parts (Zhejiang) v Council, T‑172/09, not published, EU:T:2012:532, paragraph 139). In the present case, as follows from the foregoing, the applicant was informed that the Indian exporting producer had refused the on-spot verification visit. The applicant was therefore aware of that fact prior to bringing the present action. Furthermore, although the Commission did indicate in its pleadings that the Indian exporting producer had stopped cooperating, that finding was as a result of the Indian exporting producer’s refusal to allow the on-spot verification visit. Furthermore, the second part of the first plea in law relates to the failure to verify the Indian exporting producer’s data. In that context, the reliance on Article 18(6) of the basic regulation, which does not relate to verification of the data of an interested party, cannot be regarded as constituting an amplification of the plea put forward by the applicant. It follows that the applicant’s arguments in that regard must be rejected as inadmissible. In any event, Article 18(6) of the basic regulation provides only that if an interested party does not cooperate, or cooperates only partially, so that relevant information is thereby withheld, the result of the investigation may be less favourable to the party than if it had cooperated’. There is nothing to suggest that, on that basis, the Commission was required to disregard the data provided by the Indian exporting producer.
140    In the second place, the applicant contends that the Commission did not verify whether there were cost differences related to differences in production methods, or whether high-end products for military and nuclear use were included in the like product, notwithstanding its arguments to that effect.
141    In that regard, and in so far as the first plea in law alleges infringement of the rights of the defence, it is sufficient to note that the applicant’s arguments were rejected by the Commission during the administrative procedure and that the applicant was therefore in a position effectively to make known its views in that regard.
142    As regards the arguments relating to the existence of cost differences associated with differences in production methods, those arguments specifically relate to the difference between products obtained by ‘extrusion’ and those obtained by ‘drilling’. By letter of 9 October 2017, the Commission noted that the applicant’s arguments had been submitted at a late stage of the procedure, after its reply to the questionnaire and after the on-spot verification visit. Furthermore, the Commission noted that the relevant point of comparison was the final product, irrespective of the production methods used to manufacture it. In the absence of any further requests in that regard from interested parties, the Commission stated that it was no longer in a position at that stage of the procedure to take into account the applicant’s arguments for the purposes of modifying the structure of the PCNs.
143    With regard to the arguments concerning the potential inclusion of products for military and nuclear use in the calculation of the dumping margin, the Commission noted in point 42 of the final disclosure document that the range of products manufactured by the Indian exporting producer did not include those product types.
144    It follows that the Commission took account of the arguments raised by the applicant, but decided to reject them in a reasoned manner, allowing, moreover, the applicant to dispute the substance, in the third plea in law, of the Commission’s position in that regard.
145    In the light of all those factors, the second part of the first plea in law must be rejected as unfounded.
–       The ‘aggravating circumstances’ relied on by the applicant
146    It should be noted that the ‘aggravating circumstances’ referred to by the applicant are linked to the arguments which it puts forward in the first and second parts of the first plea in law. The applicant submits that the Commission’s infringement of essential procedural requirements ‘is all the more serious’ in that it takes place in a particular context.
147    Since the first and second parts of the first plea in law have been rejected as unfounded, the ‘aggravating circumstances’ relied on by the applicant are ineffective.
148    In the light of the foregoing, the first plea in law must be rejected.
The second plea in law, alleging failure to state reasons and manifest errors of assessment resulting from the application of the analogue country methodology and the selection of the analogue country, in so far as that plea in law is based on Article 2(7) and Article 22(a) of the basic regulation and on Section 15(a) and (d) of the Protocol on the Accession of China to the WTO
149    In the first place, the applicant alleges infringement of Article 22(a) of the basic regulation and of Section 15(a) and (d) of the Protocol on the Accession of China to the WTO. That section provides that China should not be subject to the application of the ‘analogue country’ rules as from 11 December 2016 onwards, with the result that the Commission should, as a general rule, use Chinese production costs and domestic market prices in order to determine normal value for Chinese exporting producers. Article 2(7) of the basic regulation is not applicable in the present case and WTO rules must be respected, according to the applicant.
150    In the second place, in addition to the misapplication of Article 2(7) of the basic regulation, the Commission was, the applicant submits, well aware of the fact that India was far from being suitable as an analogue country because of price distortions of iron ore on the Indian market. In this regard, the applicant refers, in particular, to an anti-dumping proceeding carried out in parallel to the proceeding that led to the adoption of the contested regulation and provides a document relating to that proceeding. Other information was also available to the Commission, such as the Indian exporting producer’s abnormally high level of profitability, which should have led the Commission to reject that producer. Moreover, the applicant stated on several occasions that the Indian exporting producer did not manufacture several product types, which the Commission eventually acknowledged. The Commission was unable to guarantee the completeness and accuracy of the information provided by the Indian exporting producer. Therefore, even if Article 2(7) of the basic regulation were applicable, the Commission, in the applicant’s view, manifestly infringed that provision.
151    In the third place, the applicant submits that, by failing to refer to Section 15(a) and (d) of the Protocol on the Accession of China to the WTO, the Commission did not state reasons for the use of Article 2(7) of the basic regulation, nor did it provide justification for selecting India as the analogue country or for selecting the Indian exporting producer.
152    The applicant adds that Article 18(3) of the Anti-Dumping Agreement, relied on by the Commission, is not relevant in the present case. Furthermore, as a result of the questions raised by the Commission in its pleadings, the applicant removed from the file the document relating to the anti-dumping proceeding conducted in parallel with the present case and replaced it with the regulation adopted as a result of that proceeding.
153    The Commission disputes the applicant’s arguments.
154    The applicant’s second plea in law is based, in essence, on three parts. In the first part, the applicant alleges infringement of Article 22(a) of the basic regulation and Section 15(a) and (d) of the Protocol on the Accession of China to the WTO. In the second part, the applicant submits, in essence, that the Commission made a manifest error of assessment in selecting India as the analogue country, in breach of Article 2(7) of the basic regulation. In the third part, the applicant alleges a failure to state reasons regarding the choice of India as the analogue country and the choice of the Indian exporting producer.
–       The first part of the second plea in law, alleging breach of Article 22(a) of the basic regulation and of Section 15(a) and (d) of the Protocol on the Accession of China to the WTO
155    The applicant submits, in essence, that, in view of the Protocol on the Accession of China to the WTO, the Commission should not have applied Article 2(7) of the basic regulation by selecting an analogue country to determine normal value for the sampled Chinese exporting producers.
156    As regards the invocation of a breach of Section 15 of the Protocol on the Accession of China to the WTO, it should be noted that, according to settled case-law, having regard to their nature and structure, the WTO agreements are not in principle among the rules in the light of which the legality of measures adopted by the EU institutions may be reviewed (judgments of 23 November 1999, Portugal v Council, C‑149/96, EU:C:1999:574, paragraph 47; of 1 March 2005, Van Parys, C‑377/02, EU:C:2005:121, paragraph 39; and of 18 December 2014, LVP, C‑306/13, EU:C:2014:2465, paragraph 44).
157    In two situations, however, the Court of Justice has accepted, by way of exception, that it is for the EU Courts, if necessary, to review the legality of an EU measure and of the measures adopted for its application in the light of the WTO agreements (see judgment of 4 February 2016, C & J Clark International and Puma,
C‑659/13 and C‑34/14, EU:C:2016:74, paragraph 87 and the case-law cited). These are the situation in which the European Union intended to implement a particular obligation assumed in the context of those agreements (judgment of 7 May 1991, Nakajima v Council, C‑69/89, EU:C:1991:186) and the situation in which the EU measure in question refers explicitly to specific provisions of those agreements (judgment of 22 June 1989, Fediol v Commission, 70/87, EU:C:1989:254).
158    As regards the second exception referred to in paragraph 157 above, established by the judgment of 22 June 1989, Fediol v Commission (70/87, EU:C:1989:254, paragraph 19), it must be noted that no article of the basic regulation refers to any specific provision of the Anti-Dumping Agreements.
159    As regards the first exception referred to in paragraph 157 above, established by the judgment of 7 May 1991, Nakajima v Council
(C‑69/89, EU:C:1991:186, paragraph 31) and with regard specifically to Article 2(7) of the basic regulation, the Court of Justice has already held that that provision is the expression of the EU legislature’s intention to adopt, in that field, an approach specific to the EU legal order, by laying down a special regime of detailed rules relating to the calculation of normal value for imports from non-market-economy countries (see, by analogy, judgment of 4 February 2016, C & J Clark International and Puma, C‑659/13 and C‑34/14, EU:C:2016:74, paragraph 91 and the case-law cited). It follows that that provision of the basic regulation cannot be considered to be a measure intended to ensure the implementation in the EU legal order of a particular obligation assumed in the context of the WTO (judgment of 16 July 2015, Commission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraph 50).
160    The Protocol on the Accession of China to the WTO cannot, therefore, be relied on to challenge the legality of the contested regulation (see, to that effect, judgment of 19 September 2019, Zhejiang Jndia Pipeline Industry v Commission, T‑228/17, EU:T:2019:619, paragraph 105).
161    Furthermore, as regards the reliance on Article 22(a) of the basic regulation, that article provides that the basic regulation does not preclude the application of any special rules laid down in agreements concluded between the European Union and third countries. In that context, the applicant has not put forward arguments which differ from those in relation to the application of Section 15 of the Protocol on the Accession of China to the WTO. Since that protocol cannot be relied on to challenge the legality of the contested regulation, the applicant’s assertion that Article 22(a) of the basic regulation was breached must also be rejected.
162    In the light of those findings, the first part of the second plea in law must be rejected.
–       The second part of the second plea in law, alleging a manifest error of assessment and a breach of Article 2(7) of the basic regulation
163    As a preliminary point, it should be noted that, by Regulation (EU) 2017/2321 of the European Parliament and of the Council of 12 December 2017 amending the basic regulation (OJ 2017 L 338, p. 1), a new paragraph 6a was added to Article 2 of the basic regulation. Under the last subparagraph of Article 11(3) of the basic regulation, as amended by Regulation 2017/2321, where existing anti-dumping measures are based on a normal value calculated pursuant to Article 2(7) of the basic regulation as it was in force on 19 December 2017, the methodology laid down in Article 2(1) to (6a) is to replace the original methodology used for the determination of the normal value only from the date on which the first expiry review of those measures, after 19 December 2017, is initiated.
164    It follows that, given the date of initiation of the review procedure in this case, the methodology which was used by the Commission was that provided for in Article 2(7) of the basic regulation, as in force on 19 December 2017, without taking into account the amendments made by Regulation 2017/2321.
165    In that context, it should be noted that, according to Article 2(7)(a) of the basic regulation, in the case of imports from non-market-economy countries, in derogation from the rules set out in paragraphs 1 to 6 of that article, normal value is determined on the basis of the price or constructed value in a market-economy third country, or the price from such a third country to other countries, including the European Union, or, where those are not possible, on any other reasonable basis, including the price actually paid or payable in the European Union for the like product, duly adjusted if necessary to include a reasonable profit margin.
166    Under the second subparagraph of Article 2(7)(a) of the basic regulation, an appropriate market-economy third country is to be selected in a not unreasonable manner, due account being taken of any reliable information made available at the time of selection. Indeed, it is for the EU institutions, whilst taking account of the possible alternatives, to try to find a third country in which the prices for a like product are formed in circumstances which are as similar as possible to those in the country of export, provided that it is a market-economy country (see, by analogy, judgments of 22 March 2012, GLS, C‑338/10, EU:C:2012:158, paragraph 21, and of 10 September 2015, Fliesen-Zentrum Deutschland,
C‑687/13, EU:C:2015:573, paragraph 49).
167    Furthermore, the exercise of the EU institutions’ discretion in choosing the reference third country is subject to review by the Court. It is desirable, in particular, to verify that those institutions have not neglected to take account of essential factors for the purpose of establishing the appropriate nature of the country chosen and that the information contained in the documents in the case was considered with all the care required for the view to be taken that the normal value for the product concerned was determined in an appropriate and not unreasonable manner (see, by analogy, judgments of 22 October 1991, Nölle, C‑16/90, EU:C:1991:402, paragraphs 12 and 13; of 22 March 2012, GLS, C‑338/10, EU:C:2012:158, paragraph 22; and of 10 September 2015, Fliesen-Zentrum Deutschland, C‑687/13, EU:C:2015:573, paragraph 51).
168    In the present case, in the notice of initiation of the procedure, the Commission invited interested parties to submit their comments on its intention to refer to the USA as a market-economy third country. The Commission also identified other potential analogue countries, namely India, Japan, the Republic of Korea, Norway, Turkey and Ukraine.
169    Requests for cooperation were sent to known producers in the countries concerned by the notice of initiation of the procedure. Questionnaire replies were received from one Indian exporting producer and from three US exporting producers.
170    In recital 35 of the contested regulation, the Commission states that India was selected for the following reasons:
‘There were more than 20 known domestic producers in India, and hence the prices in the Indian market were the result of genuine competition. The Indian producer used the same production method as the one predominantly used by the Chinese industry, and its product range was more comparable with the Chinese exports than the US product range. Moreover, in the original investigation, the USA was specifically not selected, because, as outlined in recital (48) of the provisional regulation of the original investigation, the US producers relied on imports of basic raw materials and finished products from the EU parent companies, and maintained a limited production activity in the USA, mainly to respond to customised or time-critical orders. The US producers had high processing costs reflecting their particular manufacturing circumstances and those costs translated into high domestic prices in the US market.’
171    As a preliminary point, it should be noted that the applicant withdrew from the file Annex A.28 to the application, consisting of a final disclosure document in a separate anti-dumping case, and replaced it with the regulation adopted in that other case.
172    In the first place, it should be noted that, although the applicant disputes the choice of India as analogue country, it does not argue that the Commission should have chosen the USA or any other country. The applicant does not therefore put forward in its application any alternative choice which, in its view, would have been more reasonable than India.
173    In the second place, the applicant does not challenge any of the elements put forward by the Commission in recital 35 of the contested regulation to justify the choice of India as analogue country. It should be noted that those elements are indeed relevant to justifying the choice of India in the present case.
174    In the third place, as regards the applicant’s argument that there were distortions in the Indian iron ore market, the Commission stated in recital 42 of the contested regulation that ‘the claim that an alleged price distortion of iron ore had an impact on the normal value was not substantiated’. The applicant does not call that finding into question, but challenges solely a reversal of the burden of proof. However, since the argument in question had been put forward by the applicant, it was for the applicant to provide concrete evidence in support of it.
175    Furthermore, the Commission argued in the same recital that ‘iron ore was not used as a direct raw material for the product concerned, nor was any evidence provided of any indirect effect on the Indian domestic prices’. The applicant does not call into question that finding before the Court.
176    Finally, in the other anti-dumping case referred to by the applicant in its pleadings, the Commission considered that ‘the complainants reiterated their opposition to the choice of India as analogue country on grounds of distortions resulting from export subsidies, an export tax and a dual freight policy affecting the price of iron ore’, that ‘the Commission addressed these claims in recitals (80) and (81) of the provisional Regulation’, that ‘no new argument was brought forward’ and that ‘this claim was therefore dismissed’ (recitals 58 and 59 of Commission Implementing Regulation (EU) 2018/140 of 29 January 2018 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain cast iron articles originating in the People’s Republic of China and terminating the investigation on imports of certain cast iron articles originating in India (OJ 2018 L 25, p. 6). As a result, in that other anti-dumping case, the Commission rejected the objection raised by interested parties on the basis of distortions affecting the price of iron ore.
177    In the fourth place, as regards the submission that the Indian exporting producer which agreed to cooperate had a high level of profitability or that the Commission did not verify the accuracy of the information submitted by that Indian exporting producer, the applicant does not dispute the Commission’s finding that prices on the Indian market were the result of genuine competition, nor the other circumstances put forward in support of the choice of India as analogue country, which were also based on a global and comparative analysis of the Indian and Chinese markets. The applicant’s arguments are not therefore capable of calling into question the Commission’s conclusion.
178    In view of those factors, the second part of the second plea in law must be rejected as unfounded.
–       The third part of the second plea in law, alleging a failure to state reasons
179    The statement of reasons required by the second paragraph of Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the EU authority which adopted the measure in question in such a way as to enable the persons concerned to ascertain the justification for the measure adopted in order to defend their rights and to enable the Courts of the European Union to exercise their powers of review (judgments of 30 September 2003, Eurocoton and Others v Council, C‑76/01 P, EU:C:2003:511, paragraph 88; of 12 October 1999, Acme v Council, T‑48/96, EU:T:1999:251, paragraph 141; and of 12 December 2014, Crown Equipment (Suzhou) and Crown Gabelstapler v Council, T‑643/11, EU:T:2014:1076, paragraph 129 (not published)).
180    The statement of reasons need not give details of all relevant factual or legal aspects, and the question whether it meets the applicable requirements must be assessed in the light not only of its wording but also of its context and all the legal rules governing the matter in question. In addition, it should be pointed out that the institutions are not obliged to adopt a position on all the arguments relied on by the persons concerned. It is sufficient for the institution which adopted the measure to set out the facts and the legal considerations having decisive importance in the scheme of the contested regulation (see judgment of 18 October 2016, Crown Equipment (Suzhou) and Crown Gabelstapler v Council, T‑351/13, not published, EU:T:2016:616, paragraph 112 and the case-law cited).
181    In the present case, it is sufficient to note that the reasoning contained in recital 35 of the contested regulation, and repeated in paragraph 170 above, clearly and unequivocally sets out the Commission’s reasoning and has enabled the applicant to defend its rights and the EU Court to exercise its power of review.
182    Consequently, the third part of the second plea in law must be rejected as unfounded and, therefore, the second plea in law must be rejected in its entirety.
The third plea in law, alleging manifest errors of assessment resulting from the adoption of an incorrect PCN coding for the product concerned, in so far as that plea in law is based on Article 2(10), Article 11(3) and Article 18(4) of the basic regulation and on the principle of sound administration
183    The applicant submits that the PCN coding adopted by the Commission was not appropriate.
184    In the first place, it submits, the coding adopted does not distinguish between the different production methods used. The consumption of raw materials can, however, vary by up to 8% depending on the production method, namely by drilling or extrusion. The Commission ought to have made appropriate adjustments to the PCN structure.
185    In the second place, the coding adopted did not make it possible to distinguish between the specific uses of the products types, in particular pipes and tubes for nuclear and military uses which are more expensive and which are not exported by the applicant to the European Union. The applicant drew the Commission’s attention to the fact that products for nuclear and military use can also be produced using ordinary grade steel.
186    In the third place, according to the applicant, the Commission was aware of errors in the PCN coding, but refused to correct them on the ground that the applicant’s request had been submitted out of time. In addition, the applicant lodged a request for an interim review limited to the scope of the product in question. The applicant’s request was rejected even though the Commission stated in the contested regulation that that procedure should have been followed. The Commission’s contradictory approach breaches Article 11(3) of the basic regulation and the principle of sound administration. Moreover, the applicant requested a number of adjustments regarding the scope of the coefficients. However, the Commission refused to make the necessary adjustments, in breach of, inter alia, Article 2(10) of the basic regulation. Furthermore, by failing to justify its refusal to correct the coding errors identified, the Commission breached, inter alia, Article 18(4) of the basic regulation.
187    The Commission disputes the applicant’s arguments.
188    As a preliminary point, it should be noted that, in the field of measures to protect trade, the Commission enjoys a wide discretion by reason of the complexity of the economic, political and legal situations which it has to examine (see judgment of 17 July 1998, Thai Bicycle v Council, T‑118/96, EU:T:1998:184, paragraph 32 and the case-law cited), and the powers of review enjoyed by the EU Courts are restricted accordingly (see judgment of 25 October 2011, CHEMK and KF v Council, T‑190/08, EU:T:2011:618, paragraph 38 and the case-law cited). It follows that review by the EU Courts of such appraisals must be limited to verifying whether the relevant procedural rules have been complied with, whether the facts on which the choice is based have been accurately stated and whether there has been a manifest error of assessment of the facts or a misuse of powers (judgments of 14 March 1990, Gestetner Holdings v Council and Commission, C‑156/87, EU:C:1990:116, paragraph 63; of 17 July 1998, Thai Bicycle v Council, T‑118/96, EU:T:1998:184, paragraph 33; and of 7 February 2013, EuroChem MCC v Council, T‑84/07, EU:T:2013:64, paragraph 32).
189    Furthermore, it is apparent from the case-law that the choice between different methods of calculation requires an appraisal of complex economic situations, which means that the review of that appraisal by the EU Courts is correspondingly limited (see judgment of 18 November 2015, Mecafer v Commission, T‑74/12, EU:T:2015:864, paragraph 66 and the case-law cited).
190    However, that limited judicial review does not mean that the EU Courts must refrain from reviewing the institutions’ interpretation of information of an economic nature. In particular, the Court must not only establish whether the evidence relied on is factually accurate, reliable and consistent but also ascertain whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (judgment of 29 January 2014, Hubei Xinyegang Steel v Council, T‑528/09, EU:T:2014:35, paragraph 53).
191    Furthermore, it should be noted that, under Article 2(10) of the basic regulation, a fair comparison is to be made between the export price and the normal value, with due allowance, in the form of adjustments, made where appropriate, for differences in factors which are claimed, and demonstrated, to affect prices and, therefore, price comparability. In accordance with the case-law of the Court of Justice, if a party claims adjustments under Article 2(10) of the basic regulation in order to make the normal value and the export price comparable for the purpose of determining the dumping margin, that party must prove that its claim is justified (see, by analogy, 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 58 and the case-law cited).
192    The third plea in law comprises, in essence, three parts. In the first part, the applicant criticises the Commission on the ground that it failed to take account of the differences in production methods when drawing up the PCNs. In the second part, the applicant alleges that the Commission failed to take account of differences in the use of products when drawing up the PCNs. In the third part, the applicant submits that the Commission wrongly disregarded known deficiencies in the PCN coding.
–       The first part of the third plea in law, alleging a failure to take account of differences in production methods when drawing up the PCNs
193    In the first place, it should be noted that the applicant does not, as such, call into question the PCN comparison method. Moreover, the product concerned is a complex product, the different models of which have different physical and technical characteristics. The PCN comparison method, which is aimed at comparing PCNs with similar physical and technical characteristics, therefore appears appropriate for the purposes of establishing the dumping margin.
194    Moreover, it is apparent from point 2 of Section B of the questionnaire sent to the applicant during the investigation procedure that the purpose of the classification by PCN was essentially to enable matching between the products exported to the European Union with identical or similar products sold on the domestic market. It is apparent from point 3 of Section B of that questionnaire that the PCNs consisted of the following characteristics: product category, external diameter, wall thickness, steel grade, testing, tube extremity, finishing and length.
195    Thus, the objective of the PCNs, as is apparent from the questionnaire, was to define the characteristics of the products sold. The definition of those characteristics made it possible to understand whether the different product types were identical or similar. In that context, it must be found that the production methods used for each product type are not, in principle, relevant since the point of comparison is the final product type, irrespective of the production methods used to manufacture it, which the Commission, moreover, rightly pointed out in its letter of 9 October 2017. Furthermore, and in any event, the applicant has not argued before the Court, and much less demonstrated, that the alleged differences in production methods, namely extrusion or drilling, affected whether the product types concerned were identical or similar. Moreover, even though the applicant states that failure to take those differences in production methods into account results in ‘unpredictable and inappropriate price comparisons’, no detailed evidence has been put forward to support such a claim.
196    In the second place, it should be noted that the arguments put forward by the applicant during the administrative procedure were poorly developed and weakly substantiated.
197    In particular, no reference to the different production methods was included in the applicant’s request for an interim review lodged with the Commission on 29 March 2017.
198    Furthermore, while the Commission was able to find during the on-spot verification visit that the applicant was more likely to use a particular production method for certain product types, no argument was put forward by the applicant in that regard during that visit. In its letter of 27 June 2017, the applicant merely stated that there were differences in production methods, without providing any further details or evidence to support those assertions.
199    It is true that the applicant provided, as an annex to an additional request made on 26 June 2017 for an interim review limited to dumping, figures, over two lines, claiming that there was more raw material waste by using extrusion as a production method than by using drilling. However, no detailed evidence was produced in support of that assertion. Furthermore, the annex provided by the applicant in its additional request for an interim review limited to dumping supported an argument that there were differences between the production methods in China and in the European Union. That argument did not relate to production methods in India.
200    Moreover, in its letter of 2 January 2018, the applicant merely repeated that there were differences in production, on that occasion relying on a potential effect on the coefficients calculated by the Commission and applied to calculate normal value for type C products. However, once again, no detailed evidence was provided to support the applicant’s assertion.
201    Finally, at the hearing before the Hearing Officer on 5 February 2018, the applicant merely repeated that account should be taken of differences in production methods.
202    In the third place, as indicated by the Commission, the latter was required, pursuant to Article 11(9) of the basic regulation, to apply in all review investigations, and to the extent to which the circumstances had not changed, the same methodology as in the investigation that had led to the imposition of the duty. As the Commission notes, without it being disputed by the applicant, the PCN coding used in the review procedure was the same as that used in the original procedure.
203    In view of those factors, the first part of the third plea in law must be rejected as unfounded.
–       The second part of the third plea in law, alleging a failure to take into account differences in use of the products when the PCNs were drawn up
204    The second part is based on the potential inclusion of products for nuclear and military use in the PCN coding. In that regard, it must be noted that the Commission does not dispute that the scope of the product concerned included those product types, a fact which is, moreover, noted in recitals 42 and 60 of the contested regulation.
205    However, the Commission informed the applicant in the general disclosure document that the Indian exporting producer’s product range did not include those product types. That is, in essence, the same as the statement of reasons set out in recitals 60 and 66 of the contested regulation, to which the Commission adds that comparable sales on the Indian domestic market did not include special grades of steel normally used for special military or nuclear products. The applicant has not put forward any detailed arguments which would call into question the Commission’s finding with regard to the Indian exporting producer’s product range. In particular, with regard to the applicant’s claim that it informed the Commission that products for nuclear and military use could also be produced using a standard grade of steel, the applicant refers specifically to its letter of 2 January 2018 and to its presentation made to the Hearing Officer on 19 January 2018. It should be noted that the evidence put forward by the applicant and set out in its pleadings before the Court concerned certain product types manufactured by a US producer, and not by the Indian exporting producer. The same applies to the applicant’s reference, in its response to the measures of organisation of procedure, to comments by the EU producers’ association concerning their own products. As regards the applicant’s reference, in its reply to the measures of organisation of procedure, to a specific page of a brochure of the Indian exporting producer, it should be noted that this refers, in general, to the nuclear and defence sectors as ‘key market sectors’, without any reference to the products specifically manufactured by that exporting producer and even less to the product types covered by the contested regulation. It cannot therefore be inferred from the applicant’s reference to that specific page of the Indian exporting producer’s brochure that that exporting producer actually produced the product types concerned for nuclear or military use. In addition, and for the sake of completeness, it should be noted that, in the part of the brochure in question specifically concerning the manufacture of seamless pipes and tubes, no explicit reference is made to nuclear or military use. In the absence of any detail, it cannot be accepted that there is any certainty as to the actual use of the Indian exporting producer’s products in the nuclear or military sector on the basis of the brochure referred to by the applicant in its response to the measures of organisation of procedure.
206    Furthermore, the Commission noted, in recital 60 of the contested regulation, that the product types highlighted by the applicant in respect of which a confusion was allegedly possible were not actually exported by the applicant, with the result that there was no possibility of a distorted comparison. The applicant does not call that finding into question.
207    In addition, it should be noted that prices of US producers were not used for the purposes of determining normal value. The applicant has not put forward any detailed evidence before the Court which would make it possible to find that the coefficients calculated for each relevant characteristic of the PCNs could have been affected by the hypothetical taking-into-account of military or nuclear products.
208    Finally, as regards the expert’s certificate produced by the applicant at the hearing and intended to support the argument that nuclear products can be manufactured from standard grade steel, and without there being any need to rule on the admissibility of such a document produced at a very late stage of the proceedings, it is sufficient to note that that certificate, expressed in general terms, is not capable of calling into question the findings made previously.
209    In the light of those factors, there is nothing to suggest that the PCN coding adopted by the Commission in the present case is based on a manifest error of assessment.
210    In the light of the foregoing, the second part of the third plea in law must be rejected as unfounded.
–       The third part of the third plea in law, alleging that the Commission unfairly rejected the known deficiencies in the PCN coding
211    In the first place, as is apparent from the analysis of the first and second parts of the third plea in law, there is nothing to suggest that the Commission made a manifest error of assessment in the PCN coding as regards, first, the existence of different production methods and, second, products for nuclear and military use. Consequently, the Commission cannot be criticised, in particular in the light of Article 2(10) of the basic regulation relied on by the applicant, for not making adjustments in that regard.
212    In the second place, with regard to the ‘application for an interim review limited to the product scope’, which, according to the applicant, was ‘filed’ in March 2017 and ‘rejected’ by the Commission, it should be noted that that application, dated 29 March 2017, did not concern the scope of the product concerned. As follows from the very heading of that application, the latter was for an interim review limited to ‘dumping’. More specifically, the applicant requested a review of its own dumping in view of a change in circumstances relating to the termination of the application of the analogue country methodology and access to raw materials. Furthermore, contrary to what the applicant indicates in its pleadings, the Commission did not reject the application made to it by the applicant, as is apparent from the letter addressed to the applicant on 20 June 2017. Moreover, it should be pointed out that that application, which, according to the Commission, is still pending, is not the subject of the present dispute. The applicant’s reliance on a hypothetical breach of Article 11(3) of the basic regulation or of the principle of sound administration must therefore be rejected.
213    In addition, the applicant, in its response to the measures of organisation of procedure, set out an additional request for a review limited to dumping, lodged on 26 June 2017, in which it claims that it put forward arguments regarding the scope of the product concerned. Without it being necessary to rule on the admissibility of that document, given its late submission, it should be noted that the Commission specifically indicated in recital 31 of the contested regulation that a scope review of the product concerned would constitute a separate investigation and ought to have been requested by the applicant. Although the applicant did indeed raise the exclusion of nuclear and military products from the scope of the product concerned in its request of 26 June 2017, it did so in the context of a request for an interim review limited to dumping and not in the context of a request specifically addressing the scope of the product concerned. The Commission’s findings are therefore not vitiated by any error.
214    In the third place, as regards the other adjustments which the applicant claims were requested during the administrative procedure, of which there were four according to the applicant, the latter refers to point 3.2 of its observations of 2 January 2018. In that regard, suffice it to note that the applicant’s request was based on the assumption, for the purposes of determining the coefficients, that the Commission made a comparison between the production costs of one PCN, for which normal value was sought, and the production costs of another PCN, for which normal value was already known. As is, however, apparent from the file and as has been found in the context of the first plea in law (see paragraph 121 above), the Commission did not use that method. The applicant’s arguments in that regard must therefore be rejected. The same applies in regard to the failure to state reasons or the breach of Article 18(4) of the basic regulation, as alleged by the applicant.
215    In the light of the foregoing, the third part of the third plea in law must be rejected as unfounded and, therefore, the third plea in law must be rejected in its entirety.
The fourth plea in law, alleging manifest errors of assessment with regard to the determination of the applicant’s dumping margin, in so far as that plea in law is based on Article 2(7), (10) and (11) and Article 18(4) of the basic regulation
216    First, the applicant claims that the Commission did not sufficiently identify comparable products. Only a small proportion of the applicant’s total exports could be directly compared to the PCNs of only one Indian exporting producer, as the full list of PCNs of that producer was not, moreover, disclosed.
217    Second, the applicant submits that the Indian exporting producer is not comparable to the applicant. It states the example of type C products ‘Casing and tubing, of a kind used in drilling for oil and gas’, which were not manufactured by the Indian exporting producer. The Commission was slow to accept that fact, whilst refusing to disclose that producer’s relevant data to the applicant. In the applicant’s view, the method used by the Commission amounts to using, de facto, the European Union as the analogue country without prior consultation with interested parties, in breach of Article 2(7) of the basic regulation.
218    Third, most of the products exported by the applicant to the European Union were compared with the adjusted domestic sales of the Indian exporting producer using coefficients calculated on the basis of data provided by US or EU producers. The dumping margin for those products is therefore the result of data from the USA or from the European Union, which, moreover, are unverified data and not from India. Furthermore, the Commission did not verify the data provided by US producers and refused to make any adjustments relating to the Indian exporting producer’s productivity, rejecting an affidavit.
219    Fourth, the applicant states that it does not know the end use of the two PCNs in the USA used by the Commission to calculate each coefficient. A coefficient can be very different depending on the use of the product type in question, for example nuclear or military use.
220    Fifth, the Commission also refused to use the three alternative methods proposed by the applicant, in breach of Article 2(7) and Article 18(4) of the basic regulation.
221    Sixth, the coefficients established by the Commission are far removed from reality, as is shown by certain examples put forward by the applicant. In addition, the use of actual costs as opposed to standard costs can lead to considerable differences. The applicant sets out two examples which the Commission failed to take into account. Furthermore, noting that the coefficients were calculated by comparing the costs of two groups of PCNs, the applicant submits that that method does not make it possible to obtain a fair individual cost for each of the PCN elements, nor does it reflect the actual differences between those elements.
222    Seventh, in view of the errors made by the Commission, the applicant submits that it is not possible to establish the existence of dumping on its part. In particular, with regard to product type C ‘Casing and tubing, of a kind used in drilling for oil and gas’, in the absence of comparable PCNs in India, the Commission should have found that the applicant’s exports of those types of product had not been dumped. The Commission thus breached Article 2(11) of the basic regulation.
223    The Commission disputes the applicant’s arguments.
224    In support of its plea in law, the applicant raises seven manifest errors of assessment which it claims were made by the Commission in the calculation of the dumping margin.
225    In that regard, it should be noted that, under Article 2(10) of the basic regulation, a fair comparison is to be made between the export price and the normal value.
226    Furthermore, under Article 2(11) of the basic regulation, subject to the relevant provisions governing fair comparison, the existence of margins of dumping during the investigation period is normally established on the basis of a comparison of a weighted average normal value with a weighted average of prices of all export transactions to the European Union, or by a comparison of individual normal values and individual export prices to the European Union on a transaction-to-transaction basis. However, a normal value established on a weighted average basis may be compared to prices of all individual export transactions to the European Union, if there is a significant difference in the pattern of export prices among different purchasers, regions or time periods, and if the methods specified in the first sentence of Article 2(11) would not reflect the full degree of dumping being practised.
227    In the light of its wording, objective and context, Article 2(11) of the basic regulation cannot be interpreted as allowing export transactions to the European Union relating to certain types of the product under consideration to be excluded from the calculation of the dumping margin. On the contrary, it follows from that provision that the EU institutions are required to take into account all those transactions for the purposes of that calculation (see, by analogy, judgment of 5 April 2017, Changshu City Standard Parts Factory and Ningbo Jinding Fastener v Council, C‑376/15 P and C‑377/15 P, EU:C:2017:269, paragraph 61).
228    The Court of Justice has also held that, as regards export transactions relating to certain types of the product under consideration for which there were no ‘comparable prices’, no type or model of that product could be excluded from the calculation of the dumping margin. However, in order to make that calculation, a price comparison should have been made, making due allowance, in the form of adjustments, for differences which affect those prices, in accordance with Article 2(10) of the basic regulation (see, to that effect and by analogy, judgment of 5 April 2017, Changshu City Standard Parts Factory and Ningbo Jinding Fastener v Council, C‑376/15 P and C‑377/15 P, EU:C:2017:269, paragraphs 66 to 68).
–       The first alleged manifest error
229    With regard to the fact that only a small proportion of the applicant’s total exports could be directly compared to the PCNs of only one Indian exporting producer, the Commission cannot be criticised for having taken into account all of the applicant’s export transactions to the European Union, in view of the obligation imposed on the Commission (see paragraph 227 above).
230    Furthermore, no evidence put forward by the applicant supports the view that the method of using the price of a closely related product type as a basis for the calculation of normal value, with adjustments where appropriate, led to an unfair price comparison. Furthermore, as regards the fact that the calculation of the dumping margin was based on data from only one Indian exporting producer, this was due to the fact that that exporting producer was the only one in the selected analogue country which replied to the Commission’s questionnaire (recital 34 of the contested regulation).
231    Furthermore, as regards the non-disclosure of the full list of the Indian exporting producer’s PCNs, the applicant’s arguments are, in essence, the same as those put forward in the first plea in law and those arguments should be rejected on the same grounds as those set out in paragraphs 118 and 119 above. Moreover, those arguments do not establish that the Commission made a manifest error of assessment.
232    The first alleged manifest error must therefore be rejected as unfounded.
–       The second alleged manifest error
233    With regard to the contention that the Indian exporting producer is not comparable to the applicant, the latter takes as an example product types belonging to the category ‘Casing and tubing, of a kind used in drilling for oil and gas’ for which the EU producers’ sales were used as a basis for determining normal value. In that regard, the applicant’s arguments are, in essence, the same as those set out in the first plea in law and they must be rejected on the same grounds as those set out in paragraph 125 above.
234    Furthermore, as regards the claim that ‘the EU might have, therefore, de facto been used as the analogue country without prior consultation with interested parties’, that claim has no factual basis as it is common ground that India was chosen as the analogue country and that EU producers’ sales for the two PCNs referred to by the applicant were used only on a residual basis. Moreover, as follows from Article 2(7) of the basic regulation, where normal value cannot be determined on the basis of the price or constructed value in the analogue country, the Commission may use any other reasonable basis, including the price actually paid or payable in the European Union for the like product. No evidence put forward by the applicant supports the view that the Commission breached that provision.
235    The second alleged manifest error must therefore be rejected as unfounded.
–       The third alleged manifest error
236    The applicant’s arguments that, by using coefficients calculated on the basis of data provided by US or EU producers and applied to the domestic sales of the Indian exporting producer, the dumping margin of the majority of the products exported by the applicant is a result of the data from the US or from the European Union, must be rejected. In that regard, it is sufficient to note that the coefficients were determined on the basis of the production costs of the US or EU producers and were applied, in the context described by the applicant, to the sales prices of the Indian exporting producer. It follows that, contrary to what the applicant submits, it was the Indian exporting producer’s data, in particular its sales prices, which served as the basis for the determination of normal value for the majority of its products exported to the European Union. The fact that the Commission used coefficients calculated using the production costs of EU or US producers to adjust the normal value of the product type most closely resembling the Indian exporting producer’s product type cannot call that conclusion into question.
237    As regards the request for an adjustment relating to the productivity of the Indian exporting producer, the Commission noted, in recital 89 of the contested regulation, that that claim had been made late and was uncorroborated by evidence. The applicant puts forward, in its pleadings, an ‘affidavit’ by one of its employees which was annexed to a document drawn up following the hearing before the Hearing Officer on 19 January 2018. In that regard, in the first place, it should be noted that the affidavit takes the form of a simple declaration which was not made before an authority empowered to take statements on oath. In the second place, it must be noted that, in order to assess the evidential value of a document, regard should be had, first, to the credibility of the information that it contains. It is then necessary to take account, in particular, of the person from whom the document originates, the circumstances in which it came into being, the person to whom it was addressed and whether, on the face of it, the document appears sound and reliable (see, to that effect, and by analogy, judgment of 15 March 2000, Cimenteries CBR and Others v Commission, T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95, EU:T:2000:77, paragraph 1838). In the present case, it should be noted that the document at issue was prepared by an employee of the applicant with the aim of supporting an argument made by the applicant before the Commission. In the absence of additional elements, the probative value of such a document must be qualified. In the third place, it should be noted that the applicant’s employee has not set out information concerning the applicant itself, but uncorroborated information concerning a competitor that was given to that employee orally at a meeting. Moreover, that information remains relatively imprecise, in particular due to the use of the term ‘approximately’. It follows from those factors that the Commission cannot be criticised for having taken the view, in recital 89 of the contested regulation, that the applicant’s claim for an adjustment had not been corroborated by evidence. In any event, that cannot call into question the Commission’s finding that that claim for adjustment had been submitted late, that is to say, less than two months before the adoption of the contested regulation, a finding which is not disputed by the applicant.
238    The third alleged manifest error must therefore be rejected as unfounded.
–       The fourth alleged manifest error
239    With regard to the end use of the product types in the USA which formed the basis of the determination of the coefficients, the Commission noted in recital 80 of the contested regulation that that criterion did not influence the determination of the coefficients. In that regard, it should first of all be noted that the determination of the coefficients was based on a comparison of the production costs, not of sales prices. Second, it should be noted that the applicant does no more than make mere unsubstantiated assertions, such as ‘if one of [the PCNs] is intended for standard use and the other for nuclear use, the coefficient can be very high’ or that product types for nuclear and military use are ‘more expensive than commercial use PCNs’. The applicant’s unsubstantiated assertions do not, however, make it possible to assess the extent to which the Commission erred in the present case. Finally, and as the Commission points out, the applicant refers in general to a certain number of annexes without further specifying the arguments which it draws from such a reference. It is, however, not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (see judgment of 13 July 2011, Polimeri Europa v Commission, T‑59/07, EU:T:2011:361, paragraph 161 and the case-law cited).
240    The fourth alleged manifest error must therefore be rejected.
–       The fifth alleged manifest error
241    As regards the contention that the Commission refused to use alternative methods proposed by the applicant and the applicant’s reliance on a breach of Article 2(1) to (7) and Article 18(4) of the basic regulation, it is sufficient to note that those arguments have no bearing on the legality of the methodology used by the Commission in the present case. The reasonableness of the estimate of the value of the physical differences between the product types and the fairness of the comparison resulting from the adjustment based on that estimate cannot be assessed in the light of the existence or non-existence of more appropriate alternative methodologies (see, to that effect, judgment of 20 September 2019, Jinan Meide Casting v Commission, T‑650/17, EU:T:2019:644, paragraph 100).
242    In any event, the first proposed methodology was based on the non-use of an analogue country in the present case, for reasons similar to the applicant’s arguments which were rejected in the context of the second plea in law. The second proposed methodology proposed was based on the use of the normal value of Spanish producers. However, even if such a method could be considered, contrary to the Commission’s position in recital 42 of the contested regulation, it should be noted that the main methodology referred to in Article 2(7) of the basic regulation is the use of sales prices or constructed value in an analogue country. For the reasons set out in the second plea in law, the Commission did not err in selecting India as the analogue country in the present case. The third proposed methodology was based on the use of the standard costs or standard prices of the United States or the European Union. The applicant’s arguments, which are intended to indicate only that, in its view, that methodology would have been preferable, are, however, insufficient to demonstrate any illegality whatsoever of the method used by the Commission. Furthermore, the Commission stated in recital 80 of the contested regulation that the alternative coefficients submitted by the applicant were not accepted, because they were based on standard price lists of an EU producer, from a time period outside of the review investigation period. The applicant does not challenge that finding.
243    The fifth alleged manifest error must therefore be rejected as unfounded.
–       The sixth alleged manifest error
244    As regards the contention that the coefficients established by the Commission are very far removed from reality, the applicant advances unsubstantiated assertions. Thus, as regards the external diameter and steel grade coefficients, the applicant merely states that those coefficients are ‘complete nonsense’. The same applies to the claim that actual production costs can differ significantly from standard costs. The applicant’s contention is based on only two examples and fails to show to what extent the Commission made a manifest error of assessment in the determination of the relevant coefficients. Finally, the applicant again refers to the lack of understanding of the method used by the Commission to calculate the coefficients. Those arguments are, in essence, the same as those put forward in the first plea in law and they must be rejected on the same grounds. Furthermore, it should be noted that, as is apparent, in particular, from a presentation made on 5 February 2018 at a hearing with the Hearing Officer, the applicant understood the methodology used by the Commission to calculate the coefficients. The applicant also confirmed, in its pleadings, that it understood that ‘the coefficients were calculated by comparing costs of two groups of PCNs’.
245    Furthermore, the applicant challenges in general terms the methodology used by the Commission to calculate the coefficients in so far as that methodology does not make it possible to obtain a fair individual cost for each characteristic of the PCNs or to reflect the actual differences between those characteristics.
246    In that regard, it should be noted that the choice between different methods of calculation requires an appraisal of complex economic situations, which means that the review of that appraisal by the EU Courts is correspondingly limited (see judgment of 18 November 2015, Mecafer v Commission, T‑74/12, EU:T:2015:864, paragraph 66 and the case-law cited).
247    However, that limited judicial review does not mean that the EU Courts must refrain from reviewing the institutions’ interpretation of information of an economic nature. In particular, the Court must not only establish whether the evidence relied on is factually accurate, reliable and consistent but also ascertain whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (judgment of 29 January 2014, Hubei Xinyegang Steel v Council, T‑528/09, EU:T:2014:35, paragraph 53).
248    In the present case, it should be noted that the coefficients were calculated by taking into account two characteristics to be compared, but also incorporating the differences resulting from the other characteristics of the PCNs, which necessarily vary according to the product types concerned.
249    However, in the first place, it should be noted that, according to recital 51 of the contested regulation, the purpose of the coefficients was to reflect differences in the characteristics of the product types in order to enable the Commission to calculate the dumping margin for product type C.
250    In the second place, the differences which were subject to adjustment under the coefficients concerned characteristics of the product types which were not easily identifiable, in particular with regard to the accounting system of the companies concerned. In that context, the calculation to be made could be subject to a certain degree of estimation, provided that it did not appear to be manifestly incorrect.
251    In the third place, as the Commission confirmed, it did not have data available to compare two PCNs with identical characteristics, with the exception of one characteristic for which the coefficient was sought. In the absence of such data, the method of making an overall comparison of the production costs of the products having one common characteristic with the productions costs of products having another common characteristic does not appear to be manifestly incorrect. The Commission thus took into account the data that were relevant, namely the characteristic sought, and consistent with the objective of reflecting differences in normal values according to product characteristics.
252    In the fourth place, as regards the expert’s statement produced by the applicant at the hearing and designed to support the contention that the reasonable method for determining the coefficients would have been to use standard price lists, and without there being any need to rule on the admissibility of such a document produced at a very late stage of the procedure, suffice it to find that that statement is intended to support the alternative method used by the applicant during the administrative procedure and submitted to the Commission. As has already been noted, however, the mere fact that the applicant itself takes the view that that method would have been preferable, is insufficient to demonstrate any illegality of the method used by the Commission. Furthermore, the Commission stated in recital 80 of the contested regulation that the alternative coefficients submitted by the applicant were not accepted because they were based on standard price lists of an EU producer, from a time period outside of the review investigation period. The applicant does not challenge that finding.
253    In the fifth place, and in any event, it should be noted that, in the context of a review pursuant to Article 11(2) of the basic regulation, the Commission must, inter alia, prove that the expiry of the measure would be likely to result in a continuation or recurrence of dumping.
254    In the present case, the Commission found that ‘Chinese imports continued to enter the Union market at dumped prices during the review investigation period’ (recital 106 of the contested regulation). More specifically, the Commission found that dumping for the two sampled Chinese exporting producers was in the range of 25% to 35% (recital 61 of the contested regulation).
255    Furthermore, as shown in the table calculating the applicant’s dumping margin, and as noted by the Commission at the hearing, a dumping margin was found for product type D which represented a non-negligible part of the applicant’s exports to the European Union.
256    Therefore, even if it were to be assumed that the Commission could have used another method for determining the coefficients, there is nothing to suggest that the dumping margin of the applicant, or even of the two sampled companies, could have been negative. In particular, the only alternative dumping margin calculation presented by the applicant during the administrative procedure which was put forward before the Court, and which applied modified coefficients for product type C, was, as already noted, based on standard price lists of an EU producer from a time period outside of the review investigation period (recital 80 of the contested regulation). The applicant does not challenge that finding by the Commission.
257    In the light of those factors, the sixth alleged manifest error must be rejected as unfounded.
–       The seventh alleged manifest error
258    Finally, as regards the contention that the Commission could not have established the existence of dumping on the applicant’s part in view of the manifest errors of assessment identified in the present case, the applicant’s arguments must be rejected in the light of the foregoing considerations. Furthermore, with regard to product type C ‘Casing and tubing, of a kind used in drilling for oil and gas’, the applicant’s arguments amount, in fact, to seeking to exclude exports of those products from the calculation of the dumping margin. It should be noted, however, that Article 2(11) of the basic regulation cannot be interpreted as allowing export transactions to the European Union relating to certain types of the product under consideration to be excluded from the calculation of the dumping margin. On the contrary, it follows from that provision that the EU institutions are required to take into account all those transactions for the purposes of that calculation (judgment of 5 April 2017, Changshu City Standard Parts Factory and Ningbo Jinding Fastener v Council, C‑376/15 P and C‑377/15 P, EU:C:2017:269, paragraph 61).
259    Consequently, the seventh alleged manifest error must be rejected as being unfounded and, therefore, the fourth plea in law must be rejected in its entirety.
The fifth plea in law, alleging manifest errors of assessment in the finding of the existence and likelihood of recurrence of injury and the Commission’s failure to verify the existence of a causal link, in so far as that plea in law is based on Article 3(6) and (7), Article 9(5) and Article 11(1) of the basic regulation
260    The applicant submits that imports of the product in question from India into the European Union have taken over the market share of previous Chinese imports. Indian import prices have been substantially lower than those of Chinese products. Given their small market share, Chinese imports have not caused injury to the EU industry. In addition, the Commission is required to initiate anti-dumping investigations against all countries whose imports have been dumped and which cause injury to the EU industry. The Commission failed to fulfil its obligation in regard to Indian imports. This would also suggest that the European Union is specifically targeting Chinese imports, contrary to the principle of non-discrimination set out in Article 9(5) of the basic regulation.
261    The Commission disputes the applicant’s arguments.
262    It should be noted that, under Article 11(1) of the basic regulation, an anti-dumping measure is to remain in force only as long as, and to the extent that, it is necessary to counteract the dumping which is causing injury.
263    Furthermore, under Article 11(2) of the basic regulation, a definitive anti-dumping measure is to expire five years from its imposition or five years from the date of the conclusion of the most recent review which has covered both dumping and injury, unless it is determined in a review that the expiry would be likely to lead to a continuation or recurrence of dumping and injury.
264    In the context of Article 11(2) of the basic regulation, the Commission may either maintain measures that are in force or allow them to expire. The subject of that provision is therefore not the imposition, for the first time, of anti-dumping measures, but the maintenance, if appropriate, of anti-dumping measures that are in force and that are coming normally to the point of expiry (see, by analogy, judgment of 18 October 2018, ArcelorMittal Tubular Products Ostrava and Others v Commission, T‑364/16, EU:T:2018:696, paragraph 62 and the case-law cited).
265    In the present case, it follows from the contested regulation that the Commission formed the view, after an analysis of the elements of the case, that the EU industry had suffered material injury within the meaning of Article 3(5) of the basic regulation (recital 164 of the contested regulation) and that there was a likelihood of continuation of injury should the anti-dumping measures be repealed (recital 183 of the contested regulation).
266    The applicant submits, in essence, that the Commission failed to take sufficient account of the low volume of Chinese imports in comparison with the imports from India carried out at a low price, and that it, furthermore, breached its obligation to treat imports in a non-discriminatory manner.
267    In that regard, in the first place, it should be noted that the Commission took into account the low volume of Chinese imports as part of its assessment, but considered that the material injury caused to the EU industry resulted from the level of undercutting by those imports. After finding that Chinese dumped imports had continued ‘in limited volumes’ (recital 161 of the contested regulation), the Commission stated that ‘the conclusion that imports from China had a material impact on the state of the Union industry, as required under Article 3(6) of the basic regulation, derives from the substantial levels of undercutting’ (recital 163 of the contested regulation). In that regard, it should be noted that the Chinese imports undercut the EU industry’s prices by 44% (32% taking into account the anti-dumping duties). The applicant does not challenge that finding. Furthermore, it should be noted that, under Article 3(6) of the basic regulation, the Commission must demonstrate that the volume ‘and/or’ price levels identified pursuant to paragraph 3 of that article are responsible for an impact on the EU industry, and that that impact exists to a degree which enables it to be classified as material.
268    In the second place, it should be noted that the Commission took account of the Indian imports, in particular in the context of the injury causation factors. In particular, the Commission noted that imports from India had a particularly low average selling price per unit of EUR 4 519 per tonne in the review investigation period (recital 130 of the contested regulation). The Commission also noted that the negative trends in the state of the EU industry could be explained by the cumulative effect of a series of factors, including the continued presence of dumped Chinese imports and a surge of low-priced imports from third countries, including India (recital 161 of the contested regulation). However, the Commission took the view that imports from India or other third countries were not the only factor causing injury to the EU industry during the review investigation period (recital 163 of the contested regulation).
269    No argument put forward by the applicant can call into question that conclusion. In particular, as regards the argument that the price of Indian imports has always been ‘substantially’ lower than that of Chinese imports, that argument has no factual basis. As can be seen from a comparison of Tables 3 and 4 of the contested regulation (set out respectively in recitals 121 and 128 thereof), the average price of the Indian imports, although lower, was at a level very close to that of the Chinese imports during the review investigation period (EUR 4 519 as against EUR 4 615 per tonne). The larger discrepancy noted by the applicant results from the failure to take account of the price of imports under the inward processing arrangements. Moreover, the price of Chinese imports decreased at a greater rate between 2015 and the end of the review investigation period, in absolute and relative terms, than the price of Indian imports.
270    In the third place, as noted by the Commission, Article 11(2) of the basic regulation allows the Commission to maintain measures in force if necessary. By contrast, that provision does not allow for the amendment of the anti-dumping duties in force, which is referred to solely in Article 11(3) of the basic regulation. The Commission could not, therefore, on the basis of Article 11(2) of the basic regulation, extend the application of the anti-dumping measures in force to imports from India. The legality of the contested regulation cannot therefore be called into question on that basis. Moreover, it should be noted that the applicant’s contention is based on a simple analysis of average prices of imports into the European Union. That analysis cannot constitute sufficient evidence of the existence of dumping in respect of Indian imports. The applicant’s invocation of an infringement of Article 9(5) of the basic regulation and of the principle of non-discrimination cannot therefore be accepted. In any event, a difference in treatment which consists of opening anti-dumping proceedings in respect of Chinese imports only, even though there was evidence to justify investigating other imports, in particular those from India, cannot constitute an infringement of Article 9(5) of the basic regulation, even if such a difference in treatment were proved. It is apparent from the wording of that provision that it prohibits discriminatory treatment between all imports on which anti-dumping duties have been imposed in respect of imports of the same product. What is at issue here, however, is an alleged difference in treatment between imports on which anti-dumping duties have been imposed and imports which have not been the subject of any investigation. The facts of the present case therefore do not come within the scope of Article 9(5) of the basic regulation (see, to that effect and by analogy, judgment of 11 July 2017, Viraj Profiles v Council, T‑67/14, not published, EU:T:2017:481, paragraphs 105 and 106 and the case-law cited).
271    In the light of all those factors, the fifth plea in law must be rejected as unfounded and, therefore, the action must be dismissed in its entirety.
The applicant’s application for adoption by the Court of measures of organisation of procedure, pursuant to Articles 88 and 89 of the Rules of Procedure
272    It should be noted that, by separate document lodged on 4 February 2019, the applicant submitted, pursuant to Articles 88 and 89 of the Rules of Procedure, an application for the adoption of measures of organisation of procedure.
273    Under Article 88(1) of the Rules of Procedure, measures of organisation of procedure may be taken or modified at any stage of the proceedings either of the Court’s own motion or on the application of a main party. Furthermore, pursuant to Article 88(2) of the Rules of Procedure, the application referred to in paragraph 1 must state precisely the purpose of the measures sought and the reasons for them. Where the application is made after the first exchange of pleadings, the party submitting that application must state the reasons for which that party was unable to submit it earlier.
274    The applicant points out that its first plea in law relates to infringement of the rights of the defence and that, in that context, it criticises the Commission on the ground that it did not provide it with a number of documents. The applicant submits, in essence, that it continues to have only a partial and fragmented view of the facts of the present case. In that context, it therefore requests access to certain documents in the administrative file, concerning in particular the calculation of the dumping margin.
275    In the present case, it should be noted that the applicant’s application was lodged at a very late stage of the procedure, namely after the closure of the written part of the procedure on 19 December 2018, and thus well after the first exchange of pleadings referred to in Article 88(2) of the Rules of Procedure.
276    No detailed argument was submitted by the applicant to justify such a delay. The applicant merely states that it ‘expected that the Commission would have shed light [on] the manner in which it found dumping for the Applicant in the Defence and the Rejoinder, which the Commission failed to do’. Apart from its vagueness, such reasoning shows that the applicant’s situation did not change between the time when it lodged the application initiating proceedings and the time when it filed its application for measures of organisation of procedure.
277    Furthermore, in the initial section of its application for measures of organisation of procedure, the applicant states that ‘the Commission, in the Defence and the Rejoinder, confirmed the position it had adopted during the expiry review that resulted in the contested Regulation regarding the rights of defence of the Applicant’ and that ‘as a result, the Applicant and the Commission continue to retain opposing views regarding the First Plea on the infringement of the rights of defence of the Applicant’.
278    It follows that, as the applicant acknowledges, the pleadings exchanged before the Court did not alter the Commission’s position, in particular as regards access to the documents sought by the applicant. Consequently, the applicant could, at an earlier stage in the proceedings, have lodged an application for measures of organisation of procedure.
279    In any event, it should be noted that the first plea in law of the action, on which the applicant’s application is based, has been rejected.
280    Consequently, the applicant’s application for the adoption by the Court of measures of organisation of procedure must be rejected.
Costs
281    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Zhejiang Jiuli Hi-Tech Metals Co. Ltd to pay the costs.
Marcoulli
Frimodt Nielsen
Norkus
Delivered in open court in Luxembourg on 15 October 2020.
E. Coulon
M. van der Woude
Registrar
President
Table of contents
Background to the dispute
Procedure and forms of order sought
Law
Admissibility
Compliance with the requirements of Article 76(d) of the Rules of Procedure
– The admissibility of the first plea in law
– The admissibility of the second plea in law
– The admissibility of the third plea in law
– The admissibility of the fourth plea in law
– The admissibility of the fifth plea in law
The applicant’s interest in bringing proceedings and standing to bring proceedings
The merits
The first plea in law, alleging infringement of the applicant’s rights of defence, in so far as that plea is based on Article 16(1), Article 19(2) and (4), and Article 20(2) and (4) of the basic regulation
– The first part of the first plea in law, alleging failure to communicate information relevant to the defence of the applicant’s interests
– The second part of the first plea in law, alleging a failure to verify the Indian exporting producer’s data
– The ‘aggravating circumstances’ relied on by the applicant
The second plea in law, alleging failure to state reasons and manifest errors of assessment resulting from the application of the analogue country methodology and the selection of the analogue country, in so far as that plea in law is based on Article 2(7) and Article 22(a) of the basic regulation and on Section 15(a) and (d) of the Protocol on the Accession of China to the WTO
– The first part of the second plea in law, alleging breach of Article 22(a) of the basic regulation and of Section 15(a) and (d) of the Protocol on the Accession of China to the WTO
– The second part of the second plea in law, alleging a manifest error of assessment and a breach of Article 2(7) of the basic regulation
– The third part of the second plea in law, alleging a failure to state reasons
The third plea in law, alleging manifest errors of assessment resulting from the adoption of an incorrect PCN coding for the product concerned, in so far as that plea in law is based on Article 2(10), Article 11(3) and Article 18(4) of the basic regulation and on the principle of sound administration
– The first part of the third plea in law, alleging a failure to take account of differences in production methods when drawing up the PCNs
– The second part of the third plea in law, alleging a failure to take into account differences in use of the products when the PCNs were drawn up
– The third part of the third plea in law, alleging that the Commission unfairly rejected the known deficiencies in the PCN coding
The fourth plea in law, alleging manifest errors of assessment with regard to the determination of the applicant’s dumping margin, in so far as that plea in law is based on Article 2(7), (10) and (11) and Article 18(4) of the basic regulation
– The first alleged manifest error
– The second alleged manifest error
– The third alleged manifest error
– The fourth alleged manifest error
– The fifth alleged manifest error
– The sixth alleged manifest error
– The seventh alleged manifest error
The fifth plea in law, alleging manifest errors of assessment in the finding of the existence and likelihood of recurrence of injury and the Commission’s failure to verify the existence of a causal link, in so far as that plea in law is based on Article 3(6) and (7), Article 9(5) and Article 11(1) of the basic regulation
The applicant’s application for adoption by the Court of measures of organisation of procedure, pursuant to Articles 88 and 89 of the Rules of Procedure
Costs
*      Language of the case: English.