JUDGMENT OF THE GENERAL COURT (Third Chamber)
11 June 2025 (*)
( Commercial policy – Dumping – Imports of ceramic tiles originating in India and Türkiye – Definitive anti-dumping duties – Definition of Union industry – Article 4(1) of Regulation (EU) 2016/1036 – Sampling – Article 17(1) of Regulation 2016/1036 – Injury to the Union industry – Article 3(2) and (5) of Regulation 2016/1036 – Causal link – Article 3(6) and (7) of Regulation 2016/1036 – Export price – Adjustment – Functions comparable to those of an agent working on a commission basis – Article 2(10)(i) of Regulation 2016/1036 – Single economic entity – Manifest error of assessment )
In Case T‑231/23,
Akgün Seramik Sanayi ve Ticaret AŞ, established in Pazaryeri (Türkiye), and the other applicants whose names are listed in the annex, (1) represented by F. Di Gianni, A. Scalini and G. Coppo, lawyers,
applicants,
v
European Commission, represented by G. Luengo, R. Pethke and J. Zieliński, acting as Agents,
defendant,
THE GENERAL COURT (Third Chamber),
composed of P. Škvařilová-Pelzl (Rapporteur), acting as President, I. Nõmm and D. Kukovec, Judges,
Registrar: M. Zwozdziak-Carbonne, Administrator,
having regard to the written part of the procedure,
further to the hearing on 2 October 2024,
gives the following
Judgment
1        By their action under Article 263 TFEU, the applicants, Akgün Seramik Sanayi ve Ticaret AŞ and the other legal persons whose names are listed in the annex, seek the annulment of Commission Implementing Regulation (EU) 2023/265 of 9 February 2023 imposing a definitive anti-dumping duty on imports of ceramic tiles originating in India and Türkiye (OJ 2023 L 41, p. 1; ‘the contested regulation’), in so far as it concerns them.
Background to the dispute
2        The applicants are Turkish exporting producers of ceramic tiles.
3        Following a complaint lodged on 3 November 2021 by the European Ceramic Tile Manufacturers’ Association, the European Commission, on the basis of Article 5 of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21), in the version applicable to the facts of the case (‘the basic regulation’), initiated an anti-dumping procedure concerning imports of ceramic tiles originating in India and Türkiye.
4        The investigation covered the period from 1 July 2020 to 30 June 2021 (‘the investigation period’).
5        The products under investigation were ceramic flags and paving, hearth or wall tiles, ceramic mosaic cubes and the like, whether or not on a backing, and finishing ceramics. Those products, whether they originate in Türkiye and are exported to the Union, whether they originate in Türkiye and are sold on the Turkish domestic market or whether they are produced and sold in the Union by the Union industry, are like products (‘the products at issue’).
6        The applicants cooperated in the investigation but were not included in the sample of Turkish exporting producers selected by the Commission on the basis of Article 17 of the basic regulation.
7        On 9 February 2023, the Commission adopted the contested regulation imposing an anti-dumping duty on imports of the product at issue ranging from 4.8% to 20.9%.
Forms of order sought
8        The applicants claim that the Court should:
–        annul the contested regulation in so far as it concerns them;
–        order the Commission to bear the costs.
9        The Commission contends that the Court should:
–        dismiss the action;
–        order the applicants to pay the costs.
Law
10      In support of their claims for annulment, the applicants rely on four pleas in law, the first alleging the absence of injury to the Union industry; the second alleging the absence of a causal link between the dumping and the injury; the third alleging infringement of the first sentence of Article 4(1) of the basic regulation; and the fourth alleging the existence of a single economic entity and, in the alternative, the absence of a fair comparison between the normal value and the export price.
11      The Court notes that the first three pleas concern the injury caused to the Union industry.
12      In that regard, in the contested regulation, the Commission sampled Union producers for the purpose of determining the impact of dumped imports on the Union industry (‘the sample’). It drew a distinction between macroeconomic and microeconomic injury indicators. It evaluated the macroeconomic indicators on the basis of data contained in the European Ceramic Tile Manufacturers’ Association’s reply to the questionnaire it had sent it relating to all Union producers, crosschecked where necessary with trade statistics available from Eurostat (the statistical office of the European Union) and the questionnaires completed by six of the sampled Union producers. As to the microeconomic indicators, they were analysed on the basis of the responses of those six producers to those questionnaires.
13      The Commission stated in recital 304 of the contested regulation that the macroeconomic indicators taken into account to assess the injury suffered by the Union industry were: production, production capacity, capacity utilisation, sales volume, market share, growth, employment, productivity, magnitude of the dumping margin, and recovery from past dumping.
14      In recital 305 of the contested regulation, the Commission stated that the microeconomic indicators taken into account to assess the injury suffered by the Union industry were: average unit prices, unit cost, labour costs, inventories, profitability, cash flow, investments, return on investments, and ability to raise capital.
15      Thus, in so far as, by the third plea in law, the applicants dispute the validity of the sample and, should that plea be upheld, whether it would be liable to reduce the number of relevant facts on which the Commission could base itself to find that there was injury to the Union industry, that plea should be examined first.
The third plea: infringement of the first sentence of Article 4(1) of the basic regulation
16      The applicants submit that the Commission’s injury assessment is flawed as the Commission did not take into account in its injury assessment either Union producers as a whole or a major proportion of the total Union production of the product at issue, contrary to the requirements of Article 4 of the Basic Regulation.
17      The applicants base themselves on the fact that the sample accounts for barely 6% of the total Union industry production. They submit that, while the Commission is not required to sample all Union producers, it must, in order to determine whether the imports from the countries concerned caused material injury to the Union industry, take into account, under Article 4(1) of the basic regulation, a proportion of the Union production of the product at issue that can be categorised as ‘major’.
18      The applicants take the view that the term ‘major’ should be interpreted as meaning ‘in relatively high proportion’. They further submit that, the lower the Union production of the product at issue, the more care the investigating authority should take to ensure that the proportion used substantially reflects the total production of the producers as a whole. The applicants rely, in that regard, on a decision of the Appellate Body of the World Trade Organization (WTO).
19      The applicants submit that the Commission could have increased the proportion of the product at issue used in the sample by including the three largest Union producers. They add that the Commission could have also included the three largest producers for each of the three categories of producers it selected, namely large producers, medium-sized producers and small producers.
20      The applicants add that Article 4 of the basic regulation is an essential prerequisite for the injury assessment under Article 3 of that regulation.
21      The applicants also rely on Article 3(5) of the basic regulation, which provides, inter alia, that the examination of the impact of the dumped imports on the Union industry is to include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry.
22      According to the applicants, an injury analysis, such as that carried out in the contested regulation, in which some of the relevant economic indicators listed in Article 3(5) of the basic regulation do not satisfy the ‘major proportion’ condition imposed by Article 4(1) of that regulation, is vitiated. The applicants submit that, even though it is claimed that the sample complies with Article 17 of the basic regulation, such an analysis does not actually take into account the ‘Union industry’, as defined in Article 4 of that regulation.
23      The applicants conclude their arguments by recalling that a percentage of merely 6% of the Union industry cannot be regarded as a ‘major proportion’ thereof within the meaning of Article 4(1) of the basic regulation.
24      The Commission contends that the plea should be dismissed.
25      In that regard, it should be borne in mind that the Union industry is defined in the first subparagraph of Article 4(1) of the basic regulation as the Union producers as a whole of the product at issue or those of them whose collective output of the products constitutes a major proportion of the total Union production of that product.
26      As regards sampling, Article 17(1) of the basic regulation introduces two methods. Thus, it provides that, in cases where the number of Union producers, exporters or importers, types of product or transactions is large, the investigation may be limited to a reasonable number of parties, products or transactions by using samples which are statistically valid, on the basis of information available at the time of the selection, or to the largest representative volume of production, sales or exports which can reasonably be investigated within the time available.
27      In the present case, the Commission applied Article 17(1) of the basic regulation. In that regard, the following is stated in recital 67 of the contested regulation:
‘The … sample after the second revision represented 6% of total estimated Union production and 8% of total Union industry’s sales in the investigation period and covered four Member States where approximately 90% of the Union production was located. The Commission considered that the definitive sample was representative in terms of total Union production and sales, geographical spread and it took into account the fragmentation of the Union industry.’
28      The applicants claim that the Commission infringed the first sentence of Article 4(1) of the basic regulation by failing to take account, in its injury assessment, of either a major proportion of the total production of the products at issue, or of the Union producers as a whole.
29      In support of that claim, the applicants criticise the sample, which ought to have corresponded to a larger proportion of the production of the product at issue by the Union industry, by including, in particular, the three largest Union producers. They claim in that regard that the sample, which represented a mere 6% of the total Union production of the product at issue, does not constitute a major proportion of the total Union production within the meaning of Article 4(1) of the basic regulation.
30      Similarly, the applicants observe that, while the macroeconomic injury indicators were assessed in relation to the Union industry as a whole, that is not the case with the microeconomic indicators, since the information concerning the latter was gathered from a sample of Union producers accounting for merely 6% of the total production of the Union industry.
31      It should be noted that the applicants’ line of argument is based on the premiss that the sample itself should be made up of a major proportion of the total Union production of the products at issue within the meaning of Article 4(1) of the basic regulation, or even the Union producers as a whole.
32      However, Article 4 of the basic regulation does not concern the determination of the sample but rather, as its title indicates, seeks to define the Union industry.
33      Consequently, the applicants may not successfully rely on infringement of Article 4 of the basic regulation to dispute the manner in which the sample itself was selected.
34      Nor may the EU institutions be required to include in the sample a major proportion of the total production of the products at issue; otherwise, Article 17(1) of the basic regulation would be deprived of its effectiveness. On the contrary, it is sufficient, as has been done in the present case, that the investigation be limited to the largest representative volume of production, sales or exports which can reasonably be investigated within the time available.
35      Thus, since the present plea is based on an incorrect premiss, it must be rejected.
36      Moreover, the Commission stated in recital 262 of the contested regulation that the ceramic tiles industry in the European Union was highly fragmented. It thus noted that the product at issue had been manufactured by over 300 producers in the European Union during the investigation period. It concluded that those producers constituted the ‘Union industry’ within the meaning of Article 4(1) of the basic regulation.
37      Thus, as correctly observed by it in its written pleadings, the Commission defined the Union industry of the basis of the producers as a whole and not on the basis of a major proportion thereof, thereby choosing the first of the two options provided for in Article 4(1) of the basic regulation (see paragraph 25 above).
38      Consequently, the plea alleging that the fact that the sample does not make up a ‘major proportion’ of the total production of the product at issue is not only based on an incorrect premiss, it cannot, in any event, be successfully relied on in the present case, given the choice made by the Commission.
39      The considerations set out below do not call into question the conclusion in paragraph 35 above.
40      First, it is true that, should the definition of Union industry adopted by an EU institution be found to infringe the first sentence of Article 4(1) of the basic regulation, that flaw would necessarily mean that the sample used by that institution in the instant case was vitiated, as that sample was necessarily constituted on the basis of the Union industry used by the Commission (see, to that effect, judgment of 21 March 2012, Marine Harvest Norway and Alsaker Fjordbruk v Council, T‑113/06, not published, EU:T:2012:135, paragraphs 59 and 70 to 72).
41      In the present case, however, the applicants do not criticise per se the definition of the Union industry used by the Commission in the contested regulation, as is apparent from, inter alia, recital 262 of that regulation (see paragraph 36 above). The applicants allege, in essence, the non-compliance of the sample with that article, which relates to the determination of the Union industry and not the selection of the sample.
42      Consequently, the case-law cited in paragraph 40 above may not successfully be relied on in the present case.
43      Secondly, the applicants rely on a definition which, in their submission, was given in a decision of the Appellate Body of the WTO, of the concept of ‘a major proportion of the total domestic production’ in Article 4.1 of the General Agreement on Tariffs and Trade 1994 (GATT) (OJ 1994 L 336, p. 103), contained in Annex 1A to the Agreement establishing the WTO (OJ 1994 L 336, p. 3).
44      Whichever definition is so used, it may not, in any event, have any implications on how the present plea is dealt with, in view of the answers given on that point in paragraphs 31 to 38 above. First of all, contrary to the applicants’ claims, the requirement that the producers’ total productions constitute a ‘major proportion’ of the total Union production of the product at issue does not apply to the sample. Second, in the present case, the Commission did not define the Union industry on the basis of the concept of ‘major proportion’ of the total Union production of the product at issue. It opted to take account of all of the producers of that product in the European Union.
45      It follows from all of the foregoing considerations that the third plea must be dismissed.
The first plea: absence of material injury
46      The applicants submit that the Commission made a manifest error of assessment in finding that the Union industry had suffered material injury.
47      The Commission contends that that plea is inadmissible. As regards the substance, it contends that the plea should be dismissed.
Admissibility of the plea
48      The Commission submits that the present plea is inadmissible in so far as its presentation in the application does not satisfy the requirements of Article 76(d) of the Rules of Procedure of the General Court on account of its lack of clarity.
49      It should be borne in mind that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, which is applicable to proceedings before the General Court by virtue of the first paragraph of Article 53 of the Statute, and Article 76(d) of the Rules of Procedure of the General Court, the application must contain the subject matter of the proceedings, the pleas in law and arguments relied on and a summary of those pleas in law.
50      On that last point, it must also be remembered that, according to the case-law, the ‘summary of the pleas in law’ which must be stated in any application, as provided for by the articles referred to in paragraph 49 above, means that the application must specify the nature of the grounds on which the application is based (see judgment of 16 March 2023, GABO:mi v Commission, C‑696/21 P, not published, EU:C:2023:217, paragraph 47 and the case-law cited).
51      The applicant is required to set out in a sufficiently systematic manner the arguments relating to each plea which it puts forward, and the General Court cannot be obliged, due to the lack of structure in the application or lack of rigour on the part of the applicant, to reconstruct the legal structure intended to support a plea by bringing together various diffuse elements of the application, at the risk of reconstructing that plea by giving it a scope which it did not have in the mind of that party (see judgment of 16 March 2023, GABO:mi v Commission, C‑696/21 P, not published, EU:C:2023:217, paragraph 49 and the case-law cited).
52      It follows from the considerations set out in paragraph 52 above and, in particular, from the reference therein to ‘each plea’ that the formal requirements determining the admissibility of the action as a whole (see paragraphs 49 to 51 above) apply mutatis mutandis to the examination of the admissibility of a plea viewed separately, and to any of the complaints comprised in that plea (see, to that effect, judgment of 31 May 2018, Groningen Seaports and Others v Commission, T‑160/16, not published, EU:T:2018:317, paragraphs 111 to 114).
53      Lastly, it should be borne in mind that the requirements laid down in Article 76(d) of the Rules of Procedure are intended to enable, on the one hand, the defendant to prepare its defence and, on the other, the General Court to exercise its power of review, and, in that context, to ensure that the General Court does not rule ultra petita or fail to rule on a claim (see judgment of 16 March 2023, GABO:mi v Commission, C‑696/21 P, not published, EU:C:2023:217, paragraph 50 and the case-law cited).
54      In the present case, the wording of the application contains a sufficiently clear, precise and coherent statement of the present plea for the Commission to prepare its defence and the Court to rule on the action.
55      Moreover, in its statement in defence, the Commission has identified a number of complaints making up the present plea and has refuted each of them in detail.
56      Consequently, contrary to the Commission’s contentions, the present plea is admissible.
The well-foundedness of the plea
57      In order to demonstrate that the Commission’s finding of material injury is vitiated by a manifest error of assessment, the applicants submit that both the macroeconomic indicators and the microeconomic indicators relating to the Union industry showed positive trends or remained stable during the period from 1 January 2018 to the end of the investigation period, that is to say, 30 June 2021 (‘the period considered’).
58      The applicants also rely on recital 405 of the contested regulation and the fact that it is apparent from that recital that the lack of investments was not perceived by the Union industry as an injurious factor.
59      The applicants further observe that the Union industry still held a market share of more than 87% in the Union during the investigation period.
60      In the light of all the elements on which they rely, the applicants conclude that the Commission considered, incorrectly, that a reduction of just three percentage points in the Union industry’s market share was sufficient for a finding that the Union industry had suffered material injury. The Commission thus assessed a single factor in isolation, which is not sufficient in the light of the requirements as set out in the case-law. The same argument is put forward by the applicants, this time in relation to the profitability of the Union industry, which was also assessed in isolation by the Commission. In that regard, the applicants rely on case-law which, in their view, prohibits such an isolated assessment of certain economic indicators.
61      The applicants further submit that the injury to the Union industry, if any, cannot be characterised as material.
62      Lastly, the applicants submit that particular attention should be paid to the most recent economic trends. In the present case, in their view, an analysis of recent developments clearly shows that the Union industry had recovered from the difficulties it had experienced in the early part of the period considered.
63      It is settled case‑law that, in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the EU institutions enjoy a broad discretion by reason of the complexity of the economic and political situations which they have to examine. The judicial review of such an appraisal must be limited to verifying whether the procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers (see judgment of 7 April 2016, ArcelorMittal Tubular Products Ostrava and Others v Hubei Xinyegang Steel, C‑186/14 P and C‑193/14 P, EU:C:2016:209, paragraph 34 and the case-law cited).
64      Moreover, the determination of the existence of harm requires an appraisal of complex economic situations for which the EU institutions enjoy a broad discretion, and the judicial review of such an appraisal must therefore be limited to verifying whether relevant procedural rules have been complied with, whether the facts relied on in support of the contested measure have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers (see, to that effect, judgment of 27 September 2007, Ikea Wholesale, C‑351/04, EU:C:2007:547, paragraph 40).
65      Article 3 of the basic regulation is entitled ‘Determination of injury’. Article 3(1) of the basic regulation provides that, for the purposes of that regulation, the term ‘injury’ is, unless otherwise specified, to be taken to mean ‘material’ injury to the Union industry.
66      Article 3(2) of the basic regulation, relating to determination of injury, provides as follows:
‘A determination of injury shall be based on positive evidence and shall involve an objective examination of:
(a)      the volume of the dumped imports and the effect of the dumped imports on prices in the Union market for like products; and
(b)      the consequent impact of those imports on the Union industry.’
67      In the present plea, the applicants’ line of argument is limited to challenging Article 3(2)(b) of the basic regulation, relating to the determination of injury suffered by the Union industry, on the ground that the impact of the dumped imports on the Union industry has not been demonstrated by the Commission in the contested regulation. The applicants do not rely on any specific argument relating to the volume of the dumped imports or the effect of those imports on the products at issue.
68      As regards the impact of the dumped imports on the Union industry, Article 3(5) of the basic regulation provides as follows:
‘The examination of the impact of the dumped imports on the Union industry concerned shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry, including the fact that an industry is still in the process of recovering from the effects of past dumping or subsidisation; the magnitude of the actual margin of dumping; actual and potential decline in sales, profits, output, market share, productivity, return on investments and utilisation of capacity; factors affecting Union prices; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments. This list is not exhaustive, nor can any one or more of these factors necessarily give decisive guidance.’
69      It follows from Article 3(5) of the basic regulation that the EU institutions have the task of evaluating all relevant economic factors and indices which have a bearing on the state of the Union industry, any one or more of those factors does not necessarily give decisive guidance. That provision thus gives those institutions discretion in the examination and evaluation of the various items of evidence (judgment of 10 July 2019, Caviro Distillerie and Others v Commission, C‑345/18 P, not published, EU:C:2019:589, paragraph 21).
70      It is also apparent from the case-law that, although the examination by the institutions must lead to the finding that the injury to the Union industry is material, it is not necessary for all the relevant economic factors and indices to show a negative trend (see, to that effect, judgment of 25 October 2011, CHEMK and KF v Council, T‑190/08, EU:T:2011:618, paragraph 114).
71      A finding of material injury is not necessarily incompatible with the fact that some, or even several, of the factors referred to in Article 3(5) of the basic regulation show a positive trend, provided, however, that in such a case the EU institution concerned provides a convincing analysis which demonstrates that the positive development of certain factors is outweighed by a negative development of other factors (see judgment of 28 September 2023, Changmao Biochemical Engineering v Commission, C‑123/21 P, EU:C:2023:708, paragraph 145 and the case-law cited).
72      In the present case, the examination of all of the economic indicators relating to the injury suffered by the Union industry concerned the period considered, between 1 January 2018 and the end of the investigation period, that is to say, 30 June 2021, as is apparent from recital 102 of the contested regulation.
73      The Court finds that, during the period considered, Union industry production, production capacity, capacity utilisation, employment and productivity varied little or remained at the same level in an expanding market.
74      It should also be borne in mind that, during the period considered, sales on Union producers increased more slowly than the consumption of the product at issue in the Union. Thus, they increased by only 3% in a market that grew by 6%. Consequently, the market share of the Union industry decreased from 90.1% in 2018 to 87.1% during the investigation period.
75      It should also be noted that, from 2018 to 2020, sales profitability was lossmaking and began to show a slight profit, at 0.6% of turnover, only during the investigation period.
76      Lastly, the Court finds that, during the period considered, Union industry investments decreased by 62% and production capacity remained the same. In that regard, it is not disputed that most of the investments at issue were aimed at maintaining production capacity and ensuring the replacement of that capacity, while investments in research, development and innovation, which accounted for 38% of the total investments made by the sampled producers in 2018, had decreased by 97% over the period considered and accounted for only 3% of the investments during the investigation period.
77      On the basis of the decrease in the Union industry’s market share during the period considered, the lossmaking situation of that industry or its very low profitability and, lastly, the considerable drop in its investments, the Commission found, in recital 338 of the contested regulation, that the Union industry had suffered material injury.
78      The applicants do not dispute that the factors referred to in paragraphs 72 to 77 above are material, but rather the Commission’s interpretation of those factors.
79      In that regard, the applicants insist on the stability or sometimes slightly positive evolution of the macroeconomic indicators, in particular, first, the increase in Union industry prices during the investigation period, which was higher than cost increases and sufficient to show sales profitability and, second, the small drop in the Union industry’s market share, which remained substantial, in their view, at the end of the investigation period. They also rely on a decrease in stocks, although without explaining what consequences should be drawn from that decrease.
80      However, given the convincing nature of the factors referred to in paragraphs 72 to 77 above, the arguments set out in paragraph 79 above do not suffice for a finding that the Commission made a manifest error of assessment when it found that there was material injury to the Union industry.
81      The same also holds true when account is taken of, first, cash flow, which increased by 400% during the period considered and, second, return on investments, which increased by 600% during that period.
82      As regards the increase in cash flow which, according to the Commission, represents the Union producers’ ability to self-finance their activity, in recital 330 of the contested regulation it distinguished between two periods during the period considered: on the one hand, 2018 and 2019 and, on the other, 2020 and the investigation period.
83      As regards the years 2018 and 2019, the Commission stated that most of the cash flow increase observed in 2019 could be explained by a sharp increase in stocks of finished products in 2018, which means that, for that year, production was intended for stocks. Thus, although costs remained constant, sales and, consequently, inward cash flow decreased, which led to low net cash flow. When sales picked up again in 2019, cash flow, which had been low in 2018, increased sharply in relative value terms compared to the preceding year. Thus, taking 2018 as the reference year, cash flow increased from a value of 100 in 2018 to a value of 187 in 2019.
84      As regards 2020 and the investigation period, the Commission stated that production had been temporarily interrupted due to plant closures linked to the COVID-19 pandemic, whereas sales had continued, which had led to a reduction in stocks. Reduced disbursements due to decreased production and therefore production costs, accompanied by steady receipts due to continued sales had led to a very sharp increase in cash flow. Thus, taking 2018 as the reference year, cash flow increased from a value of 100 in 2018 to a value of 369 in 2020 and a value of 400 for the investigation period.
85      The applicants have not put forward any argument calling into question the plausible explanations set out in the contested regulation and in paragraphs 83 and 84 above, which show how the increase in cash flow did not result from the Union industry being in good shape, but rather from short-term factors.
86      In order to establish that an institution committed a manifest error in assessing complex facts so as to justify the annulment of the measure which it adopted, the evidence in support of such a claim must be sufficient to render the factual assessments adopted in that measure implausible (judgment of 14 June 2018, Lubrizol France v Council, C‑223/17 P, not published, EU:C:2018:442, paragraph 39; see also, to that effect, judgment of 7 May 2020, BTB Holding Investments and Duferco Participations Holding v Commission, C‑148/19 P, EU:C:2020:354, paragraph 72).
87      As regards return on investments, although it is true that, after dropping very sharply from 1% in 2018 to -9% in 2019 and -10% in 2020, and increasing during the investigation period, reaching 4%, it nevertheless remains too low for it to be possible, on the basis of that factor, taken together with the other factors relied on by the applicant, to find that there is a manifest error of assessment. Moreover, the Commission, without being challenged on the point by the applicants at the hearing, explained, in response to a measure of organisation of procedure decided on by the Court, that the increase in return on investments was due to an increase in profits, but also to a decreased in fixed assets, the amount of which decreased throughout the period considered. Such a decrease is an indicator of an industry suffering injury.
88      It follows from the considerations set out in paragraphs 72 to 87 above that the factors relied on by the applicants do not substantiate a finding that the Commission made a manifest error of assessment in finding in the contested regulation that the Union had suffered material injury.
89      The above conclusion is not called into question by the applicants’ other arguments.
90      First, as regards the applicants’ argument alleging positive trends at the end of the period considered, which ought to have led the Commission to find that there was no material injury caused to the Union industry, it should be borne in mind, in regards to the principal indicators taken into account by the Commission in the contested regulation for the determination of that injury, that the Union industry’s market share for the products at issue continued to decline during the most recent period, namely the investigation period, and that, although investments increased slightly between 2020 and the investigation period, they were much lower at the end of the period considered than at the start of that period, accounting for a mere 38% of their initial amount.
91      Moreover, although production increased markedly during the investigation period, it led only to a return to the level of production observed in 2018. That same evolution may be observed for production capacity utilisation. Sales volume increased only slightly during the investigation period, at a rate of just over 1%. Cash flow especially increased over the course of 2020. Moreover, reference should be made in that regard to the considerations set out in paragraph 84 above about that trend and the lack of argument from the applicants casting doubt on the plausible explanations put forward on this point in the contested regulation (see paragraph 85 above). As regards return on investments, reference is made to the finding set out in paragraph 87 above. Lastly, even though profitability of sales in the European Union to unrelated customers improved during the investigation period, it remained low, reaching a mere 0.6%.
92      It follows from the foregoing that, even if greater attention should be paid to trends appearing at the end of the period considered, they do not in any event cast doubt on the conclusion set out in paragraph 88 above.
93      Secondly, as regards the applicant’s reliance on recital 405 of the contested regulation, it is apparent from that recital that none of the sampled producers made a substantiated claim or provided any evidence that their level of investment, research and development and innovation during the period considered would have been higher under normal conditions of competition.
94      It should be noted that recital 405 of the contested regulation is found in the part of that regulation dealing with calculation of the injury margin. It concerns, in particular, the application of Article 7(2c) of the basic regulation, which provides that the Union industry target profit used to define a target price enabling the injury margin to be calculated is established taking account, inter alia, of the level of profitability needed to cover full costs and investments, research and development and innovation.
95      It was on the basis, inter alia, of recital 405 of the contested regulation that the Commission could rightly apply the last sentence of Article 7(2c) of the basic regulation, under which the profit margin must not, in any event, be lower than 6%.
96      Thus, recital 405 of the contested regulation does not concern the determination of an injury suffered by the Union industry and, once placed back in context, it cannot be interpreted as an indicator running counter to the finding also made in the contested regulation as to the determination of a substantial decrease in investment by Union producers, in particular in research and development and innovation (see paragraph 76 above).
97      That is a fortiori true since recital 405 concerns the lack of arguments or evidence provided by the sampled Union producers to establish their target profit, inter alia by demonstrating that their level of investment would have been higher in the absence of dumping. It is probable that the sampled producers considered that they did not necessarily have to provide such evidence, given that the wording provides in any event for the application of a minimum profit of 6% for determining the target price enabling the injury margin to be calculated (see paragraph 95 above).
98      Thirdly, the applicants criticise the Commission for having considered certain indicators separately, including the Union industry’s decrease in market share and its lack of or low profitability. On the contrary, however, the Commission did carry out an overall assessment of the situation submitted to it. That overall assessment led it to identify three consistent factors not contradicted by the other evidence in the file, namely: the decrease in the Union industry’s market share over the course of the period considered; the lossmaking situation or its very low profitability of the Union industry; and, lastly, the substantial decrease in the Union industry’s investments, on the basis of which the Commission found that the Union industry had suffered material loss (see paragraph 77 above).
99      It follows from all of the foregoing that the present plea must be rejected.
The second plea: absence of a causal link between the dumping and the injury suffered by the Union industry
100    The applicants claim that the Commission committed a manifest error of assessment by overestimating, in the contested regulation, the effects of the allegedly dumped imports on the economic situation of the Union industry.
101    The Commission contends that the plea is inadmissible and, in any event, unfounded.
Admissibility of the plea
102    The Commission submits that the plea is inadmissible in so far as its presentation in the application does not satisfy the requirements of Article 76(d) of the Rules of Procedure on account of its lack of clarity.
103    That plea of inadmissibility must be rejected on the basis of the considerations set out in paragraphs 48 to 56 above, with paragraphs 54 and 55 being applied mutatis mutandis to the present plea.
The well-foundedness of the plea
104    The applicants state that the market share attributable to imports from the countries concerned, namely India and Türkiye, increased by merely three percentage points during the period considered. They also note that, at the beginning of that period, the Union industry held a market share of about 90%, which decreased by only three percentage points. The applicants conclude, in the light of the limited nature of those developments, that a causal link between the increase in the imports at issue and the injury suffered by the Union has not been established.
105    The applicants further claim that the Union industry’s sales volume increased by three percentage points.
106    The applicants add that an increase in the average unit sales prices of the Union industry that is more pronounced than the increase in its cost of production tends to support the view that no price pressure was exerted by imports.
107    Lastly, the applicants point to an increase in cash flow and profitability over the course of the period considered.
108    Moreover, the applicants state that the COVID-19 pandemic had an impact on the economic situation of the Union industry.
109    Article 3 of the basic regulation provides:
‘…
6.      It must be demonstrated, from all the relevant evidence presented in relation to paragraph 2, that the dumped imports are causing injury within the meaning of this Regulation. Specifically, that shall entail demonstrating that the volume and/or price levels identified pursuant to paragraph 3 are responsible for an impact on the Union industry as provided for in paragraph 5, and that that impact exists to a degree which enables it to be classified as material.
7.      Known factors, other than the dumped imports, which at the same time are injuring the Union industry shall also be examined to ensure that the injury caused by those other factors is not attributed to the dumped imports under paragraph 6. Factors which may be considered in that respect shall include: the volume and prices of imports not sold at dumping prices; contraction in demand or changes in the patterns of consumption; restrictive trade practices of, and competition between, third country and Union producers; developments in technology and the export performance; and productivity of the Union industry.
…’
110    It should be borne in mind, by way of extension of the case-law referred to in paragraph 63 above, that the determination of the existence of harm caused to the Union industry requires an appraisal of complex economic situations and the judicial review of such an appraisal must therefore be limited to verifying whether relevant procedural rules have been complied with, whether the facts relied on have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers (see case-law cited in paragraph 63 above). That is particularly the case as regards the determination of the factors injuring the Union industry in an anti-dumping investigation (see judgment of 16 April 2015, TMK Europe, C‑143/14, EU:C:2015:236, paragraph 34 and the case-law cited).
111    Moreover, it is for the parties pleading the illegality of an anti-dumping regulation to adduce evidence to show that factors other than those relating to the imports could have had such importance that they called into question the causal link between the harm suffered by the Union industry and the dumped imports (see judgment of 16 April 2015, TMK Europe, C‑143/14, EU:C:2015:236, paragraph 42 and the case-law cited).
112    In the present case, the applicants put forward two complaints. In the first place, they dispute the existence of effects of the dumped imports on the situation of the Union industry. In the second place, they refer to the effects of a second factor, namely the COVID-19 pandemic.
113    As regards, in the first place, the challenge to the effects of the dumped imports on the situation of the Union industry, first, the applicants claim that the market share in the Union of the dumped imports is too limited for an effect on the situation of the Union industry to be established, especially since, at the end of the period considered, it held a very large market share and its sales had increased.
114    In that regard, the Court notes that, in the part of the contested regulation dealing with the effects of the dumped imports, the Commission stated that the volume of imports from the countries concerned had increased by 72% over the course of the period considered, with the market share increasing from approximately 5% in 2018 to approximately 8% during the investigation period. It added that the increase in the volume of imports from the countries concerned significantly outpaced both the increase in consumption in the Union market (which had been 6%) and the increase in Union producers’ sales (which had been 3%). The Commission went on to note that the increase of more than three percentage points in the market share of dumped imports had paralleled a loss of three percentage points in the market share of the Union industry, which decreased from 90.1% in 2018 to 87.1% over the course of the investigation period. The Commission concluded that that gain in market share by the dumped imports was at the expense of the Union industry, which had not been able to benefit from the increase in consumption (recitals 353 and 354 of the contested regulation).
115    In addition to the link found between the increase in the dumped imports’ market share and the Union industry’s drop in market share, the Commission, in order to make out proof of a causal link between the dumped imports and the injury suffered by the Union industry, also based itself on there being a significant undercutting margin. It added that the prices applied on the Union market by the sampled exporting producers had been lower than Union industry prices throughout the period considered and that they had even been lower than its production costs over the course of the investigation period (recitals 355 and 356 of the contested regulation).
116    As the correctness of the factors referred to in paragraphs 114 and 115 above has not been challenged by the applicants, it follows that the Commission was correct in finding that there was a causal link between the dumped imports and the injury suffered by the Union industry despite the low market share in the Union held by dumped imports and the very large market share held by the Union industry, as well as the Union producers’ increase in sales, highlighted by the applicants (see paragraph 113 above).
117    Secondly, the applicants rely on the fact that the average unit sales price in the European Union for Union producers increased more rapidly over the period considered than their unit production cost, which tends to support the view that no competitive price pressure was exerted by dumped imports.
118    It is true that, in 2020 and over the course of the investigation period, Union industry unit prices increased more than production costs, as is apparent from Table 7 in the contested regulation. However, the same table shows that those prices remained lower than production costs throughout the period considered. That trend is confirmed by the fact that, as is apparent from Table 10 in the contested regulation, the Union industry remained below the profitability threshold from 2018 to 2020 and only barely broke even during the investigation period, which coincided with the post-COVID-19 economic recovery and the recovery in the construction sector, as is apparent from recital 357 of the contested regulation.
119    In view of the factors referred to in paragraph 118 above, which are not disputed by the applicants, the factors relied on by them as referred to in paragraph 117 above are not sufficient to demonstrate that the Commission made a manifest error of assessment by failing to find that the dumped imports had not exerted competitive price pressure on Union industry prices.
120    Thirdly, the applicants point to an increase in net cash flow and profitability for the Union industry over the course of the period considered. Those arguments, while relevant for establishing an absence of injury, are not relevant for demonstrating an absence of causal link between the dumped imports and the injury suffered by the Union industry. In any event, those arguments are not well founded, as is apparent from the considerations set out in paragraphs 81 to 87 above, in the part of the present judgment addressing the first plea, alleging an absence of injury suffered by the Union industry.
121    As regards, in the second place, injurious effects that factors other than the dumped imports allegedly had on the Union industry, the applicants merely state that there is no doubt that the COVID-19 pandemic had an impact on the economic situation of the Union industry, without providing any clarification whatsoever capable of calling into question the information set out in recitals 353 to 356 of the contested regulation, which forms the basis for the finding of a causal link between the increase in dumped imports and the injury suffered by the Union industry (see paragraphs 114 and 115 above).
122    Moreover, in section 5.2.5 of the contested regulation, entitled ‘COVID-19 effects’, the Commission stated, without its assessments being disputed by the applicants, inter alia, first, that production, which had declined in 2020, had recovered during the investigation period, with a lower increase in production costs and, second, that the Union market had continued to grow during the pandemic and that the Union industry had been able to maintain its sales volume in 2020 by selling from its stocks.
123    Consequently, the applicants’ argument does not demonstrate that a factor other than those relating to dumped imports, in this case the COVID-19 pandemic, was able in the present case to have such implications as to call into question the presence of a causal link between the injury suffered by the Union industry and the dumped imports (see the case-law cited in paragraph 111 above).
124    It follows from the considerations set out in paragraphs 104 to 123 above that the factors relied on by the applicants do not substantiate a conclusion that, in finding in the contested regulation that there was a causal link between the dumped imports and the injury suffered by the Union industry, the Commission made a manifest error of assessment. Consequently, the present plea must be rejected.
The fourth plea: in essence, errors vitiating the calculation of the dumping margin of other Turkish exporting producers
125    In that plea, the applicants dispute the Commission’s calculation of the dumping margin of other Turkish exporting producers and argue that the Commission’s error on that point had an impact on the anti-dumping duties applied to them.
126    The Commission contends that the plea is inadmissible and, in any event, unfounded.
Admissibility of the plea
127    As the Commission has put forward two pleas of inadmissibility, they must be addressed in turn.
–       The first plea of inadmissibility
128    The Commission submits that the plea is inadmissible in so far as its presentation in the application does not satisfy the requirements of Article 76(d) of the Rules of Procedure on account of its lack of clarity.
129    That plea of inadmissibility must be rejected on the basis of the considerations set out in paragraphs 48 to 56 above, with paragraphs 54 and 55 being applied mutatis mutandis to the present plea.
–       The second plea of inadmissibility
130    The Commission submits that the present plea is also inadmissible on the ground that the applicants dispute the calculation of the dumping margin of other Turkish exporting producers, since the answer it would have to provide might involve information that it is not able to be disclosed without breaching its duty to preserve the confidentiality of that information vis-à-vis the applicants. The examination of the well-foundedness of such a plea accordingly entails an infringement of the principle of equality of arms, to its detriment.
131    According to settled case-law, the principle of equality of arms is an integral part of the principle of effective judicial protection of the rights that individuals derive from EU law, enshrined in Article 47 of the Charter of Fundamental Rights of the European Union (judgments of 17 July 2014, Sánchez Morcillo and Abril García, C‑169/14, EU:C:2014:2099, paragraph 48, and of 16 October 2019, Glencore Agriculture Hungary, C‑189/18, EU:C:2019:861, paragraph 61). It is thus for the Court to ensure that the principle of equality of arms is observed in the legal proceedings (see, to that effect, judgment of 12 May 2015, Dalli v Commission, T‑562/12, EU:T:2015:270, paragraphs 54 to 60).
132    It is true that, since the applicants submit, inter alia, that the Commission made a manifest error of assessment in not finding that there was a single economic entity vis-à-vis the other Turkish exporting producers, the Commission’s defence of the well-foundedness of its assessment involves the examination of aspects which are potentially confidential vis-à-vis the applicants, relating to, inter alia, those exporting producers’ structure of sales and prices, their intra-group sales and relationships, including contractual ones, maintained by them.
133    That does not, however, constitute a ground of inadmissibility of the present plea.
134    It is for the General Court to do what is necessary to ensure that the principle of equal treatment of the parties is observed before it; the institution concerned may, if it deems it appropriate, allege infringement of that principle in an appeal brought against the judgment of the General Court (see, to that effect, judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraphs 30 to 34).
135    In any event, it should be borne in mind that Article 103 of the Rules of Procedure is aimed precisely at addressing the difficulties arising in these kinds of situations by ensuring a balance between the protection of confidential information and observance of the principle of equality of arms.
136    It follows form the considerations set out in paragraphs 128 to 135 above that the present plea is admissible.
The well-foundedness of the plea
137    The arguments set out in the present plea comprise two distinct parts. By the first part, the applicants submit that there is a single economic entity. By the second, put forward in the alternative, they submit that the Commission ought to have made an adjustment for the calculation of the normal value equivalent to that which it had made for calculating the export price.
–       The first part of the plea
138    The applicants submit that the Commission wrongly concluded that there was no single economic entity, which allowed it to apply Article 2(10)(i) of the basic regulation.
139    Consequently, according to the applicants, the Commission erred in deducting from the export price the selling, general and administrative expenses (‘the SG&A expenses’) and the profit margin of related traders belonging to the same group as some of the sampled Turkish exporting producers (‘the group’).
140    The applicants further submit that the Commission wrongly found, in the contested regulation, that common control, joint management and the fact that checks during the investigation concerned the same locations for the whole group did not necessarily mean that there was a single economic entity.
141    The applicants add that, contrary to what the Commission considered in the contested regulation, the fact that producers and related traders are based in different locations is not a relevant criterion. They state that the same applies to the existence of sales departments in different entities, including the manufacturing entities.
142    The applicants rely on a practice, which is common in the ceramics sector, according to which ‘only the final product and design counts for the final customer and not the manufacturer’. In their view, that practice had the effect of counteracting the fact, relied on by the Commission in the contested regulation, that related traders often had independent suppliers and worked with products other than the product at issue.
143    The applicants add that, within the group, related traders could not finalise purchases from unrelated producers without the parent company’s approval. They also state that those purchases from unrelated producers were limited to products that the group had decided not to produce itself for profitability reasons. Lastly, they maintain that those sales represented a negligible share of the group’s exports to the European Union.
144    Moreover, the applicants claim that the Commission failed to examine certain elements, even though it was incumbent upon it to do so.
145    First, they plead the level of commercial integration between the related traders and producers.
146    In that regard, the applicants state that only the producers in the group, and not the related traders, had a website. However, in their view, the employees of the related traders established initial contact with clients by organising international trade fairs, client visits or other forms of interaction. The applicants conclude from that that the producers were not directly involved in the relationship with the client.
147    Moreover, according to the applicants, when customers sent a purchase order to a related trader, the latter registered the order directly in the enterprise resource planning system of the manufacturer to which it was related.
148    Furthermore, the applicants maintain that the related traders did not keep stock and that, once the related traders received the order from a client, the producers issued invoices and sent the goods to the related traders, who, in turn, delivered them to the final recipients. Thus, according to the applicants, the goods were kept in the producers’ warehouses until they were shipped and, as soon as they left those warehouses, they were sent to the port on the same day.
149    Secondly, the applicants state that the related traders resold the products to the independent customers in the European Union with a profit margin, which was their sole remuneration. Accordingly, in their view, they did not receive any commission from the producers.
150    Thirdly, as a general rule, according to the applicants, the producers in the group did not directly export to the European Union, since export sales to the European Union were carried out through the related traders.
151    Fourthly and lastly, the applicants state that their line of argument ‘is not called into question by the Commission’s assertion in recital 234 of the contested regulation, where it considered that, even in the case of a single economic entity, pursuant to Article 2(9) of the Basic Regulation, the investigating authority would allegedly be required to establish the export price on the basis of the price at which the imported product was first resold to independent customers in the Union’.
152    It should be borne in mind, as a preliminary point, that Article 2(10) of the basic regulation provides for adjustments intended to make the normal value and export price comparable with a view to determining the dumping margin. Moreover, Article 2(10)(i) of the basic regulation provides that an adjustment is to be made for differences in commissions paid in respect of the sales under consideration. The second subparagraph of that provision states that the term ‘commissions’ is to be understood to include the mark-up received by a trader of the product or the like product if the functions of such a trader are similar to those of an agent working on a commission basis.
153    As regards the extent of the judicial review, by way of extension of the case-law referred to in paragraph 63 above, that review, as it relates to the application of the adjustments provided for in Article 2(10) of the basic regulation, requires an appraisal of complex economic situations and the judicial review of such an appraisal must therefore be limited to verifying whether the relevant procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers (see, to that effect, judgment of 18 March 2009, Shanghai Excell M&E Enterprise and Shanghai Adeptech Precision v Council, T‑299/05, EU:T:2009:72, paragraphs 254 and 255).
154    The burden of proving that the specific adjustments listed in Article 2(10) of the basic regulation must be made lies with those who wish to rely on them. Thus, where a producer claims that an adjustment of the normal value, in principle downward, or an adjustment of the export price, logically upward, applies, it is for that operator to indicate and to establish that the conditions for granting such an adjustment are satisfied. Conversely, where the EU institutions take the view that it is appropriate to apply a downward adjustment of the export price, on the ground that a sales company affiliated to a producer carries out functions comparable to those of an agent working on a commission basis, it is the responsibility of those institutions to adduce at the very least consistent evidence showing that that condition is fulfilled (judgment of 26 October 2016, PT Musim Mas v Council, C‑468/15 P, EU:C:2016:803, paragraphs 83 and 84).
155    Where the EU institutions have adduced consistent evidence that a distributor affiliated to a producer carries out functions comparable to those of an agent working on a commission basis, it will be for that distributor or that producer to adduce evidence that an adjustment under Article 2(10)(i) of the basic regulation is not justified, for example by demonstrating that they form a single economic entity (judgment of 26 October 2016, PT Musim Mas v Council, C‑468/15 P, EU:C:2016:803, paragraph 85).
156    An adjustment under Article 2(10)(i) of the basic regulation cannot be made where the producer established in a third State and its related distributor responsible for exports to the European Union form a single economic entity (judgment of 26 October 2016, PT Musim Mas v Council, C‑468/15 P, EU:C:2016:803, paragraph 39).
157    The considerations set out in paragraph 155 above also hold true for any party wishing to rely on the existence of a single economic entity, including where, as in the present case, that party does not belong to the single economic entity in question.
158    The burden of proving that the specific adjustments listed in Article 2(10) of the basic regulation must be made lies with those who wish to rely on them, ‘irrespective of who they are’ (see, to that effect, judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraph 60). Similarly, where the EU institutions have adduced consistent evidence that a distributor affiliated to a producer carries out functions comparable to those of an agent working on a commission basis, it will be for that distributor or that producer to adduce evidence that an adjustment under Article 2(10)(i) of the basic regulation is not justified, for example by demonstrating that they form a single economic entity.
159    As regards the concept of ‘single economic entity’, it should be borne in mind that the division of production and sales activities within a group made up of legally distinct companies can in no way alter the fact that the group is a single economic entity which organises in that way activities that in other cases are carried on by what is, also from a legal point of view, a single entity (judgment of 26 October 2016, PT Musim Mas v Council, C‑468/15 P, EU:C:2016:803, paragraph 40).
160    In those circumstances, recognition of the existence of a single economic entity avoids costs, which are clearly included in the sale price of a product when that sale is carried out by an integrated sales department in the producer’s organisation, no longer being included where the same sales activity is carried out by a company which is legally distinct, even though economically controlled by the producer (judgment of 26 October 2016, PT Musim Mas v Council, C‑468/15 P, EU:C:2016:803, paragraph 41).
161    According to settled case-law, a single economic entity exists between a producer and a distribution company where the former entrusts tasks normally falling within the responsibilities of an internal sales department to the latter for its products which it controls economically (judgment of 25 June 2015, PT Musim Mas v Council, T‑26/12, not published, EU:T:2015:437, paragraph 43; see also, to that effect, judgments of 5 October 1988, Canon and Others v Council, 277/85 and 300/85, EU:C:1988:467, paragraph 39, and of 10 March 1992, Ricoh v Council, C‑174/87, EU:C:1992:108, paragraph 14).
162    Moreover, it should be borne in mind that, in the analysis of whether there is a single economic entity between a producer and its related distributor, it is crucial to consider the economic reality of the relationship between that producer and that distributor. In view of the requirement of a conclusion reflecting the economic reality of the relationship between that producer and that distributor, the EU institutions are required to take account of all factors relevant to the determination as to whether or not that distributor carries out the functions of an integrated sales department within that producer (judgment of 26 October 2016, PT Musim Mas v Council, C‑468/15 P, EU:C:2016:803, paragraph 43).
163    Thus, those factors cannot be limited to the functions carried out by the related distributor in connection only with the sales of the product concerned manufactured by the producer which claims to form a single economic entity with that distributor. Therefore, account can be taken of sales by the related distributor of products other than the product that is the subject of the anti-dumping investigation in order to determine the share of the sales made by that distributor of products supplied by unrelated producers (judgment of 26 October 2016, PT Musim Mas v Council, C‑468/15 P, EU:C:2016:803, paragraphs 44 and 45).
164    In the same way as the EU institutions are entitled to take into account sales of products other than the product concerned manufactured by the related producer for the purposes of determining whether there is a single economic entity, the direct invoicing by the producer established in a third State of a proportion of export sales to the European Union is a relevant factor which those institutions may also take into account. In that regard, the larger the proportion of such direct sales, the more difficult it is to maintain that the related trader carries out the functions of an internal sales department (judgment of 26 October 2016, PT Musim Mas v Council, C‑468/15 P, EU:C:2016:803, paragraph 49).
165    Moreover, the existence of a contract concluded between the producer and its related distributor is an important factor in the relationship between those two companies. To disregard it would be to obfuscate part of the economic reality of that relationship (see, to that effect, judgment of 26 October 2016, PT Musim Mas v Council, C‑468/15 P, EU:C:2016:803, paragraphs 56 and 57). The existence of such a contract in facts to demonstrate that the relationship between the related distributor and its producer is organised on the basis of normal commercial conditions, in particular where that contract contains various provisions which are difficult to reconcile with the existence of a single economic entity between those traders (see, to that effect, judgment of 25 June 2015, PT Musim Mas v Council, T‑26/12, not published, EU:T:2015:437, paragraphs 60 to 64).
166    It is in the light of the foregoing considerations that the arguments put forward by the applicants must be examined.
167    In the present case, the applicants submit that the Commission misapplied the second subparagraph of Article 2(10)(i) of the basic regulation. It should be noted, however, that they do not argue that the related traders were not carrying out functions comparable to those of an agent working on a commission basis, but merely allege that there is a single economic entity (see paragraphs 138 to 151 above).
168    Thus, given the considerations set out in paragraphs 154 to 158 above, it is for the applicants to make out proof of the existence of such an entity.
169    It should be borne in mind that, in the course of the procedure for adoption of the contested regulation, the Commission proposed, pursuant to the second subparagraph of Article 2(10)(i) of the basic regulation, to deduct from the export price the SG&A expenses and the profit margin of related traders belonging to the group. The group challenged the planned application of that provision by the Commission, relying on the concept of a ‘single economic entity’, but the Commission found that proof of such an entity had not been made out.
170    In that regard, recitals 240 to 244 of the contested regulation state:
‘(240)      The [group’s] related traders in Türkiye involved in sales to the Union received a mark-up for their services and had functions similar to those of an agent remunerated on a commission basis.
(241)      The Commission disclosed further details of these findings via an individual disclosure only to the group concerned for confidentiality reasons.
(242)      In light of the above, for [the group], for sales to the Union involving related parties in Türkiye, the export price was adjusted pursuant to Article 2(10)(i) of the basic Regulation. The Commission deducted from the export price the SG&A expenses of the related party(ies) and the profit described in recital (232) in fine.
(243)      Following final disclosure, the [group] claimed that no deduction of SG&A and profit was warranted under Article 2(10)(i) of the basic Regulation because the different entities in the group formed a single economic entity.
(244)      In the Commission’s view, several factors contradict the claim for a single economic entity for this group. The fact that the [group] entities were economically controlled and managed by the same persons and that verification visits took place mostly at the premises of the producers did not necessarily make the group a single economic entity. The Commission noted that the producers and related traders were based in different locations (with registered offices in places different from those of the related manufacturers) and that the related traders often had unrelated suppliers and/or dealt with products other than the product under investigation. In addition, there were sales departments in different entities, including the manufacturing entities, with different roles. Those related traders thus could not be said to be operating as the internal sales department of the related producers. These elements, and also taking into account the absence of sufficiently substantiated information allowing for a clear understanding of the arrangements amongst related entities in the [group], prevented the Commission from accepting the [group’s] overall claim for a single economic entity.’
171    It follows from the recitals of the contested regulation cited in paragraph 170 above that the Commission found that the group’s related traders in Türkiye involved in sales to the European Union had functions similar to those of an agent remunerated on a commission basis and that it could not be concluded that they formed a single economic entity with the group’s producers. On the latter point, it took into account, inter alia, first, the fact that the related traders, who also sold products other than the product at issue, often had unrelated suppliers and, second, the absence of sufficiently substantiated information showing clearly the agreements between the related entities of the group.
172    The well-foundedness of those two grounds should be examined in turn.
173    In the first place, in view of the case-law cited in paragraph 163 above, the Commission was correct in taking into account the fact that the related traders often had unrelated suppliers, either for the product concerned or for other products.
174    In that regard, the applicants state that, within the group, traders could not finalise purchases from unrelated producers without the parent company’s approval. They also state that those purchases from unrelated producers were limited to products that the group had decided not to produce itself for profitability reasons. Lastly, they maintain that those sales represented a negligible share of the group’s exports to the European Union.
175    However, as rightly observed by the Commission, the allegations in paragraph 174 above are not substantiated by any evidence.
176    Moreover, the probative value of those allegations is lessened by the fact that they relate to a group of companies distinct from the applicants and that they have not provided any explanation as to how they learned of the information in question.
177    The applicants also contest the implications, for the categorisation as a single economic entity, of the fact that the related traders often had unrelated suppliers.
178    In that regard, the applicants submit that the purchase of tiles between suppliers is a common practice in the ceramics industry.
179    However, the applicants merely refer to unsubstantiated statements expressed by the group in the procedure that led to the adoption of the contested regulation.
180    Thus, the applicants have failed to produce any document substantiating the practice on which they rely and, in particular, supporting a finding that the producers themselves regularly obtain their supplies from other unrelated producers in order to complete their orders from their customers when they are unable to do so with their own stocks.
181    The applicants are 15 Turkish producers of the product concerned. They were, therefore, in a position to provide the Court with the evidence liable to substantiate their allegations in this point.
182    It follows from the considerations set out in paragraph 174 to 181 above that the arguments put forward by the applicants do not call into question either the Commission’s finding that the related traders often had unrelated suppliers, or the relevance of such a finding for the categorisation as a single economic entity.
183    In the second place, it should be borne in mind that, in view of the requirement of a finding reflecting the economic reality of the relationship between the producer and the related distributor (see paragraph 162 above), all relevant factors for determining whether that distributor operates as an internal sales department must be taken into account.
184    The existence of a contract concluded between the producer and its related distributor is an important factor in the relationship between those two companies because it tends to demonstrate that the relationship between them is organised on the basis of normal commercial conditions, in particular where that contract contains various provisions which are difficult to reconcile with the existence of a single economic entity between those traders (see paragraph 165 above).
185    It should also be borne in mind that Article 18(1) of the basic regulation provides that, in cases in which an interested party refuses access to, or otherwise does not provide, necessary information within the time limits provided for in that regulation, or significantly impedes the investigation, provisional or final findings, affirmative or negative, may be made on the basis of the facts available. Article 18(6) of that regulation provides that if an interested party does not cooperate, or cooperates only partially, so that relevant information is thereby withheld, the result may be less favourable to the party than it might have been if it had cooperated.
186    In circumstances in which no cooperation whatsoever has been forthcoming from the producing exporters, the Court of Justice has held that even though the basic regulation establishes the principle that the burden of proving circumvention is imposed on the EU institutions, Article 18(1) and (6) of the regulation are clearly intended to lessen that burden by providing that those institutions may base the findings of an investigation to ascertain whether there has been circumvention on the facts available and that the result may be less favourable to the parties which have not cooperated with that investigation than it might have been if they had cooperated with it. The Court of Justice has stated in that regard that it follows from Article 18 of the basic regulation that it was not the intention of the EU legislature to establish a legal presumption whereby it is possible to infer the existence of circumvention directly from the non-cooperation of the parties interested or concerned, thus exempting the EU institutions from any requirement to adduce proof. However, given that it is possible to make findings, even definitive findings, on the basis of the facts available and to treat a party which does not cooperate, or does not cooperate fully, less favourably than if it had cooperated, it is equally evident that the EU institutions are authorised to act on the basis of a body of consistent evidence. Any other approach would risk undermining the efficiency of EU trade defence measures each time the EU institutions are faced with non-cooperation in an investigation to establish whether there has been circumvention (judgment of 26 January 2017, Maxcom v City Cycle Industries, C‑248/15 P, C‑254/15 P and C‑260/15 P, EU:C:2017:62, paragraphs 63 to 67).
187    That case-law, which concerns the demonstration of whether there has been ‘circumvention’, a concept found in Article 13 of the basic regulation, also holds true for establishing whether there has been dumping and, accordingly, for the determination of the export price.
188    In the present case, it is apparent from recitals 209 to 212 and also 248 of the contested regulation that, although the Commission made numerous requests for clarifications about the contractual arrangements that the group producers had concluded with related entities active in the sale of their products, inter alia in the European Union, at no time during the investigation did the group provide clarifications. Accordingly, in order to find that there was no single economic entity, in recital 244 of the contested regulation, the Commission, applying Article 18 of the basic regulation, took account of the absence of sufficiently substantiated information allowing for a clear understanding of the arrangements amongst related entities in the group, which prevented a finding of a single economic entity.
189    Given the relevance of the factors requested by the Commission in the present case in order to determine whether there was a single economic entity (see paragraph 184 above) and the group’s undisputed failure to cooperate, the Commission was correct in applying Article 18 of the basic regulation in the contested regulation.
190    It follows from the considerations set out in paragraphs 173 to 189 above that the fact that the related traders in the group situated in Türkiye often had unrelated suppliers is a sufficiently important indicator, in a context where the group does not cooperate with respect to the submission of evidence relating to another important factor, namely the existence of a contract concluded between the producers and their related distributors (see paragraph 184 above), for a finding that the Commission did not make a manifest error of assessment in concluding in recital 244 of the contested regulation that the group was not a single economic entity.
191    This is a fortiori so since it has been held that the proportion of sales made by the related trader relating to products from unrelated producers must be regarded as an important factor for the purposes of determining whether that trader forms a single economic entity with the related producer. Thus, if that trader achieves a large part of its turnover from the sale of products from unrelated undertakings, that may constitute evidence that the functions of that trader are not those of an internal sales department (judgment of 25 June 2015, PT Musim Mas v Council, T‑26/12, not published, EU:T:2015:437, paragraph 53). It has even been held that the mere fact that the share of turnover of the related trader stemming from its activities with unrelated producers remained significant constituted sound evidence that the functions of that company were not those of an internal sales department (see, to that effect, judgment of 25 June 2015, PT Musim Mas v Council, T‑26/12, not published, EU:T:2015:437, paragraphs 57 and 58).
192    The conclusion set out in paragraph 190 above is not called into question by the other arguments put forward by the applicants.
193    First, since the two grounds of the contested regulation examined in paragraphs 173 to 189 above enable a conclusion that the Commission did not make a manifest error of assessment in finding, in recital 244 of the contested regulation, that the group did not form a single economic entity, the applicant’s criticism relating to other grounds of the contested regulation purportedly also supporting a finding that there was not a single economic entity (see paragraphs 140 and 141 above) has no bearing on the answer to be provided to the present plea.
194    Secondly, the facts relied on by the applicants to establish the existence of a single economic entity but not taken into account by the Commission in the contested regulation – even if the applicants could rely on them and that they were held to be correct – would not, even considered together, call into question the conclusion set out in paragraph 190 above.
195    The fact that, in the present case, the related traders did not have stocks of the product at issue is not, in the absence of additional explanations from the applicants, a factor that can be regarded as specifically characterising the existence of an integrated sales department. The same holds true for the fact that the employees of the related traders established initial contacts with clients by organising international trade fairs, client visits or other forms of interactions.
196    The Court finds that the claim that the related traders do not have their own website is inaccurate, at least in part. Nor have the applicants explained how such a fact could lead to the conclusion that there is a single economic entity.
197    Lastly, according to the applicants, when customers sent a purchase order to a related trader, the latter registered the order directly in the enterprise resource planning system of the producer to which it was related. However, on the basis of evidence in the file relied on by the applicants, the Commission states that the order was actually registered in the traders’ system, then forwarded by that system to the producers’ system, which was therefore separate, in order to create an order there. In that regard, it found, correctly, that such a functionality does not mean that the two systems were integrated to the point where such a fact indicates the existence of a single economic entity.
198    Thirdly, the absence of commissions paid by the producers to the related traders may not successfully be relied on by the applicants in order to demonstrate infringement of Article 2(10)(i) of the basic regulation, since the second subparagraph of that provision provides precisely for the possibility of an adjustment in the absence of an actual commission.
199    Whilst the first subparagraph of Article 2(10)(i) of the basic regulation provides that an adjustment is to be made for differences in commissions paid in respect of the sales under consideration, the second subparagraph stipulates that the term ‘commissions’ is to be understood to include the mark-up received by a trader of the product at issue if the functions of such a trader are similar to those of an agent working on a commission basis (see paragraph 152 above).
200    Moreover, according to recital 6 of Council Regulation (EC) No 1972/2002 of 5 November 2002 amending Regulation (EC) No 384/96 on the protection against dumped imports from countries not members of the European Community (OJ 2002 L 305, p. 1), which inserted into Regulation No 384/96 the provision corresponding to the second subparagraph of Article 2(10)(i) of the basic regulation in force at the time of the facts in the present case, adjustments to the normal value and the export price are made when commissions are paid and, in line with the consistent practice of the Commission and the Council of the European Union, such adjustments should also be made, if the parties do not act on the basis of a principal–agent relationship, but achieve the same economic result by acting as buyer and seller.
201    Fourthly, although the applicants rely on the fact that the group producers were not exporting directly to the European Union, they do not explain how such a fact could affect the examination of the present part.
202    It is true that the Court of Justice has held that the Union institutions are entitled to find that a producer, together with one or more distribution companies which it controls, forms an economic entity even though it performs certain sales functions itself (judgment of 10 March 1992, Matsushita Electric v Council, C‑175/87, EU:C:1992:109, paragraph 14).
203    However, that does not mean that, where a producer is not involved in any direct sales, or does not perform directly any sales functions, the EU institutions should find that that producer necessarily forms an economic entity with the companies that distribute its products. It is possible that all of that producer’s products which are exported to the European Union are exported through traders not forming a single economic entity with that producer.
204    Fifthly, the applicants’ criticism of recital 234 of the contested regulation (see paragraph 151 above) is not relevant inasmuch as that recital relates to the situation of related importers situated in the European Union. It accordingly concerns a different scenario from that at issue in the context of the present plea, which concerns related traders situated not in the European Union but in Türkiye (see paragraph 171 above).
205    It follows from the foregoing that the first part of the present plea must be rejected.
–       The second part of the plea
206    In the alternative, the applicants submit that, while the Commission made downward adjustments to the export price in order to take account of the related traders’ SG&A expenses and profit margins for sales on the Union market, it did not make a similar downward adjustment to the normal value to take account of the related traders’ SG&A expenses and profit margins for sales on the Turkish domestic market.
207    The applicants argue that, by failing to do so, the Commission created an asymmetry between the normal value and the export price, in breach of the basic regulation, in particular of Article 2(10) of that regulation, which lays down the requirement to make a fair comparison between the normal value and the export price.
208    The applicants claim that some of the related traders were used by the group both on the Turkish domestic market and on the Union market and that they thus served both markets.
209    In that regard, the correctness of the aspect relied on by the applicants, according to which certain related traders were used by the group both on the Turkish domestic market and on the export market, including the Union market, is not disputed by the Commission.
210    That aspect is, moreover, relevant for establishing a potential infringement of the requirement of fair comparison of the normal value and the export price imposed by Article 2(10) of the basic regulation.
211    However, it is apparent from recital 247 of the contested regulation that, for sales on the Turkish domestic market, the group’s main strategy was, on the basis of a common price list, to keep a broad base of local dealers. By contrast, for sales on the export markets, those producers expected the related traders to create added value, starting from the common price list.
212    The correctness of that aspect is not disputed by the applicants.
213    The Commission infers from the considerations set out in paragraph 211 above that, contrary to the prices on the Turkish domestic market, the export prices comprised an additional price element reflecting the costs specifically linked to the value added by the related traders. Consequently, in its view, in order to carry out a fair comparison pursuant to Article 2(10) of the basic regulation, it was appropriate to remove that additional price element, which was not present in the normal value, by deducting the SG&A expenses and the profit margin of those traders.
214    Such an explanation, which has not been validly disputed by the applicants, is capable of justifying the application of a different treatment to the calculation of the normal value in relation to that of the export price.
215    It should also be borne in mind that Article 18(1) of the basic regulation provides that, in cases in which an interested party refuses access to, or otherwise does not provide, necessary information within the time limits provided for in that regulation, or significantly impedes the investigation, provisional or final findings, affirmative or negative, may be made on the basis of the facts available (see paragraph 185 above). Reference should also be made to the case-law cited in paragraph 186 above.
216    In that regard, it is apparent from recital 248 of the contested regulation that, although the Commission made numerous requests for clarifications about the contractual arrangements that the producers of the group had with the related entities which were active in selling their products, inter alia in the European Union, at no point in time during the investigation did the group provide clarifications, although they would have been useful for substantiating the claim that ‘any deduction of SG&A and profit under Article 2(10)(i) of the basic regulation was unfounded because it created unjustified differences and an unfair comparison of the normal value and the export price’ (recital 247 of the contested regulation).
217    The Commission was therefore correct in finding in recital 248 of the contested regulation that that lack of information had prevented it from fully assessing the claim that the situation with regard to domestic and export sales would be exactly the same for those traders involved in both sales flows.
218    It follows from the considerations set out in paragraphs 209 to 217 above that, given the evidence available to it, the Commission did not make a manifest error of assessment in not making an adjustment to the calculation of the normal value equivalent to the one it had applied to the export price on the basis of Article 2(10)(i) of the basic regulation.
219    Consequently, the second part of the present plea must be dismissed, as must, therefore, the plea in its entirety.
220     It follows from all of the foregoing considerations that the action must be dismissed.
Costs
221    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 applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Akgün Seramik Sanayi ve Ticaret AŞ and the other applicants whose names are listed in the annex to pay the costs.
Škvařilová-Pelzl
Nõmm
Kukovec
Delivered in open court in Luxembourg on 11 June 2025.
V. Di Bucci
S. Papasavvas
Registrar
President
*      Language of the case: English.
1      The list of other applicants is annexed only to the version sent to the parties and addressees referred to in Article 55 of the Statute of the Court of Justice of the European Union.