JUDGMENT OF THE GENERAL COURT (Eighth Chamber, Extended Composition)
14 September 2022 (*)
(Dumping – Imports of mixtures of urea and ammonium nitrate originating in Russia, Trinidad and Tobago and the United States – Implementing Regulation (EU) 2019/1688 – Definitive anti-dumping duty – Dumping margin – Determination of the normal value – Adjustments – Construction of the export price – Fair comparison – Injury to the Union industry – Calculation of price undercutting – Sales between related companies – Causal link – Calculation of the injury margin – Injury elimination – ‘Lesser duty’ rule – Use of facts available)
In Case T‑865/19,
AO Nevinnomysskiy Azot, established in Nevinnomyssk (Russia),
AO Novomoskovskaya Aktsionernaya Kompania NAK “Azot”, established in Novomoskovsk (Russia),
represented by P. Vander Schueren and T. Martin-Brieu, lawyers,
applicants,
v
European Commission, represented by G. Luengo and P. Němečková, acting as Agents,
defendant,
supported by
Fertilizers Europe, established in Brussels (Belgium), represented by B. O’Connor and M. Hommé, lawyers,
intervener,
THE GENERAL COURT (Eighth Chamber, Extended Composition),
composed of J. Svenningsen, President, R. Barents (Rapporteur), C. Mac Eochaidh, T. Pynnä and J. Laitenberger, Judges,
Registrar: I. Kurme, Administrator,
having regard to the written part of the procedure,
further to the hearing on 17 January 2022,
gives the following
Judgment
1        By their action under Article 263 TFEU, the applicants, AO Nevinnomysskiy Azot (‘NEV’) and AO Novomoskovskaya Aktsionernaya Kompania NAK “Azot” (‘NAK’), seek annulment of Commission Implementing Regulation (EU) 2019/1688 of 8 October 2019 imposing a definitive anti-dumping duty and definitively collecting the provisional duty imposed on imports of mixtures of urea and ammonium nitrate originating in Russia, Trinidad and Tobago and the United States of America (OJ 2019 L 258, p. 21; ‘the contested implementing regulation’).
Background to the dispute
Administrative procedure
2        On 13 August 2018, following a complaint, the European Commission published a notice of initiation of an anti-dumping proceeding concerning imports of mixtures of urea and ammonium nitrate (‘UAN’) originating in Russia, Trinidad and Tobago and the United States of America (OJ 2018 C 284, p. 9).
3        The investigation into dumping and injury covered the period from 1 July 2017 to 30 June 2018 (‘the investigation period’). The examination of trends relevant for the assessment of injury covered the period from 1 January 2015 to 30 June 2018 (‘the period considered’).
4        The product under investigation corresponded to mixtures of UAN in aqueous or ammoniacal solution that may have additives, currently falling under CN code 3102 80 00 (‘the product concerned’).
5        Interested parties were invited to participate in the investigation. Several of them, including the applicants, submitted their written observations.
6        On 20 March 2019, the Commission adopted Implementing Regulation (EU) 2019/455 making imports of mixtures of urea and ammonium nitrate originating in Russia, Trinidad and Tobago and the United States of America subject to registration (OJ 2019 L 79, p. 9).
7        On 21 March 2019, a disclosure document setting out the Commission’s provisional findings was sent to the applicants (‘the pre-disclosure’).
8        On 10 April 2019, the Commission adopted Implementing Regulation (EU) 2019/576 imposing a provisional anti-dumping duty on imports of mixtures of UAN originating in Russia, Trinidad and Tobago and the United States of America (OJ 2019 L 100, p. 7; ‘the provisional implementing regulation’).
9        On 12 July 2019, the Commission informed the applicants of the essential facts and considerations on the basis of which it intended to impose a definitive anti-dumping duty on imports of the product concerned originating in inter alia Russia (‘the definitive disclosure’).
10      On 8 October 2019, the Commission adopted the contested implementing regulation.
11      Article 1(1) of the contested implementing regulation provides for the imposition of a definitive anti-dumping duty on imports of the product concerned. Article 1(2) of the contested implementing regulation states that that anti-dumping duty is to be a fixed amount of between EUR 22.24 and EUR 42.47 per tonne applicable to imports of the product concerned into the European Union produced by the various companies listed in that implementing regulation. The amount of duty was set for the applicants at EUR 27.77 per tonne of the product concerned.
12      The applicants submitted written observations during the administrative procedure.
Summary of the grounds on which the contested implementing regulation is based
Sampling
13      For the purposes of the investigation and in accordance with Article 17 of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21; ‘the basic regulation’), the Commission used sampling of Union producers and selected in the sample three Union producers, together accounting for more than 50% of the total Union production and sales volumes.
14      As regards the sampling of unrelated importers, the Commission decided that such sampling was not necessary and sent questionnaires to the three importers that had agreed to cooperate.
15      As regards the sampling of exporting producers in Russia, Trinidad and Tobago and the United States (‘the countries concerned’), only two exporting producers in Russia (namely Acron Group and EuroChem Group), one in Trinidad and Tobago (namely Methanol Holdings (Trinidad) Ltd) and one in the United States (namely CF Industries Holdings, Inc.) agreed to cooperate and to be included in the sample. In view of the low number of responses from exporting producers, the Commission decided that sampling was not necessary.
Product concerned and like product
16      The product under investigation corresponded to mixtures of UAN in aqueous or ammoniacal solution that may have additives, falling under CN code 3102 80 00, originating in Russia, Trinidad and Tobago and the United States.
17      The Commission considered that the product concerned, the product produced and sold on the domestic market of the countries concerned and the product produced and sold in the Union by the Union industry constituted like products.
Dumping
18      For the purposes of determining whether there was dumping, the Commission drew a distinction, with regard to the normal value of the Russian exporting producers, between the two Russian cooperating exporting producers, namely Acron Group and EuroChem Group, in the knowledge that, in total, only three groups of companies produced UAN in Russia during the investigation period and that only Acron Group and EuroChem Group exported UAN to the European Union.
19      In the case of EuroChem Group, the normal value was calculated as the weighted average of the profitable sales on the Russian domestic market. Its costs of manufacturing were adjusted, pursuant to Article 2(5) of the basic regulation, to take account of the costs of the price of natural gas in Russia. According to the Commission, since the internal price of natural gas was distorted by the application of State regulations, it was replaced with an undistorted international benchmark price, namely the ‘Waidhaus’ price.
20      In order to determine the export price, the Commission distinguished between the various export methods. Where the exporting producers exported the product concerned directly to independent customers in the Union, the export price was the price actually paid or payable for the product concerned when sold for export to the Union, in accordance with Article 2(8) of the basic regulation. However, where the exporting producers exported the product concerned to the Union through related companies acting as an importer, the export price was established on the basis of the price at which the imported product was first resold to independent customers in the Union, in accordance with Article 2(9) of that regulation. In that case, adjustments to the price were made for all costs incurred between importation and resale, including selling, general and administrative (‘SG&A’) expenses and dilution costs; and for a reasonable profit.
21      The Commission then compared the normal value and the export price of the two Russian cooperating exporting producers on an ex-works basis. In order to ensure a fair comparison between the normal value and the export price, the Commission made adjustments pursuant to Article 2(10) of the basic regulation for discounts, rebates and differences in quantities, as well as for transport, insurance, handling, loading and ancillary costs, and credit cost.
22      Following that comparison, the Commission calculated the dumping margin for each of the Russian cooperating exporting producers and for the other potential exporting producers. According to the companies concerned, that dumping margin varied between 20% and 31.9% in the contested implementing regulation. The applicants’ dumping margin was set at 20%.
Definition of Union industry
23      The Commission found that the like product was manufactured by 20 known producers in the Union during the investigation period. Those entities, taken together, constituted the ‘Union industry’ within the meaning of Article 4(1) of the basic regulation.
24      The Commission also recalled that three of those producers, representing over 50% of the total Union production of the like product, had been selected for the sampling of Union producers.
Injury
25      The Commission considered that a cumulative assessment of the effects of imports from the countries concerned was possible, since the criteria for such an assessment, set out in Article 3(4) of the basic regulation, were met.
26      When analysing the volume of imports, the Commission found that the volume of imports from the countries concerned increased by 64% over the period considered, and the market share of those imports increased by 72%, from 21.9% to 37.7%, in the investigation period. More specifically, during the period considered, the volume of imports from Russia increased by 81% and the market share of those imports increased by 90%, from 7.1% to 13.4%.
27      When analysing the effects on prices, the Commission compared, in the provisional implementing regulation, the prices of the sampled Union producers with those of cooperating exporting producers in the countries concerned. More specifically, for the purposes of determining the price undercutting during the investigation period, a comparison was made between (i) the weighted average prices per product type of the imports from the cooperating exporting producers in the countries concerned to the first independent customer on the Union market, established on a cost, insurance, freight (CIF) basis, with appropriate adjustments for customs duties and post-importation costs, and (ii) the corresponding weighted average sales prices per product type of the sampled Union producers charged to independent customers on the Union market.
28      The Commission thus compared the Union frontier CIF price of the exporting producers with the ex-works price of the Union producers, representing 60% of the latter’s sales. However, for those Union industry sales which incurred sea freight for delivery of the product concerned to ports such as Rouen (France) and Ghent (Belgium), representing 40% of the sales of the Union producers, it was found appropriate to use the prices for delivery to those ports instead of calculating ex-works prices.
29      The Commission thus found that the imports from the countries concerned undercut the prices of the Union industry by 6.8% on average. More specifically, it considered that the weighted average undercutting margin was 3.4% for imports from Russia.
30      The Commission then assessed the impact of the imports on the Union industry in the light of various macroeconomic and microeconomic indicators.
31      Following its analysis of the injury indicators, the Commission concluded that the Union industry had suffered material injury within the meaning of Article 3(5) of the basic regulation.
32      In the contested implementing regulation, the Commission decided to supplement its price undercutting calculations, in the light of the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), with two additional undercutting calculations which, in its view, made it more clear that the dumped imports undercut the Union industry’s prices regardless of the methodology used.
33      The Commission also noted, in the contested implementing regulation, that, in addition to establishing the existence of price undercutting, the investigation had also shown that, in any event, the effect of the dumped imports was to cause significant price suppression on the Union market during the investigation period, for the purposes of Article 3(3) of the basic regulation. It concluded that undercutting was therefore but one factor in a much broader price effect analysis in which price depression and suppression was a key causation argument.
34      The Commission therefore maintained its conclusion that the Union industry had suffered material injury within the meaning of Article 3(5) of the basic regulation.
Causal link
35      Over the period considered and against a backdrop of decreasing consumption in the Union, the Commission found, in the provisional implementing regulation, that import volumes from the countries concerned and their market shares had increased significantly whereas prices from the countries concerned had fallen on average by 33%. It noted that the increase in the market share of the imports coincided with a similar decrease of market share for the Union industry. Bearing in mind that UAN is a price-sensitive commodity, that the market share of imports from the countries concerned was 37.7% in the investigation period, and that those imports had been made at prices that undercut Union industry prices, the Commission concluded that such imports had produced substantial harmful effects.
36      In the contested implementing regulation, the Commission confirmed that imports from the countries concerned undercut the sales prices from the Union producers. It observed that, in any event, the causation analysis had taken into consideration many other factors besides the finding of undercutting in connection with the effects of the dumped imports. Thus, price depression as well as price suppression during the investigation period, caused by the imports concerned, were key causation arguments.
37      After examining other factors, namely, inter alia, the world price for urea and the higher costs for Union producers, the Commission concluded that none of those factors had broken the causal link between the dumped imports from the countries concerned and the material injury to the Union industry.
Level of the measures and Union interest
38      To determine the level of the measures, the Commission examined whether a duty lower than the margin of dumping would be sufficient to remove the injury caused by dumped imports to the Union industry.
39      In the case of Russia, the Commission concluded that a duty lower than the dumping margin would not be sufficient to remove injury to the Union industry. According to the Commission, Union producers were not only harmed by dumping, but suffered from additional distortions of trade compared to Russian exporting producers, owing to the existence of distortions on raw materials, within the meaning of Article 7(2a) of the basic regulation, with regard to the price of natural gas on the Russian domestic market. Consequently, it concluded that it was in the Union interest, as established in Article 7(2b) of the basic regulation, read in conjunction with the second subparagraph of Article 9(4) of that regulation, to set the amount of the duties at the level of the dumping margins established, since a duty lower than the dumping margin would not be sufficient to remove the injury to the Union industry.
Anti-dumping measures
40      As regards the form of the anti-dumping measures, the Commission chose to establish a specific fixed duty.
41      The definitive anti-dumping duty was thus established, ultimately, at an amount varying, according to the companies concerned, between EUR 22.24 and EUR 42.47 per tonne of the product concerned. For the applicants, that duty amounted to EUR 27.77 per tonne of the product concerned.
The applicants
42      The applicants, joint stock companies governed by Russian law, are active in the production and sale of mixtures of UAN. The legal links between them within the EuroChem Group are not specified.
43      During the investigation period, the applicants sold their UAN on the Russian domestic market to related traders, which resold them to independent customers.
44      The applicants’ export sales to the European Union during the investigation period were all made through a related exporter established in Switzerland (‘the Swiss trading company’), which resold them to a related importer established in Germany, namely EuroChem Agro GmbH. EuroChem Agro then resold the product concerned either directly to independent customers in the European Union or to related traders in Bulgaria (EuroChem Agro Bulgaria LLC), France (EuroChem Agro France SAS) and Spain (EuroChem Agro Iberia S. L. and Hispalense de Liquidos) (together, ‘the related traders’). The related traders then resold the product either to one of the other related traders or to independent customers.
45      It follows, in essence, that all sales of the product concerned, both sales on the Russian domestic market and export sales, were made through at least one related company, before being resold to a first independent buyer.
Forms of order sought
46      The applicants claim that the Court should:
–        annul the contested implementing regulation in so far as it concerns them;
–        order the Commission and the intervener, Fertilizers Europe, to pay the costs.
47      The Commission contends that the Court should:
–        dismiss the action;
–        order the applicants to pay the costs.
48      The intervener contends that the Court should:
–        dismiss the action as in part inadmissible and in part unfounded;
–        order the applicants to pay the costs.
Law
49      In support of the action, the applicants rely on four pleas in law:
–        the first plea alleges infringement of Article 2(1), (9) and (10) of the basic regulation and manifest errors of assessment in determining the export price and the normal value, as well as infringement of Article 2(3) to (5) of that regulation in determining the ‘ordinary course of trade’ by reference to adjusted costs of production;
–        the second plea alleges infringement of Article 3(2), (3) and (6) of the basic regulation, of the right to sound administration and of the principle of non-discrimination, as well as manifest errors of assessment as regards the analysis of the effects of the dumped imports on prices in the Union market for like products;
–        the third plea alleges infringement of Article 3(7) of the basic regulation, read in conjunction with Article 9(4) of that regulation, and of the right to sound administration, as well as manifest errors of assessment as a result of the failure to analyse whether other known factors were liable to cause injury to the Union industry and whether the injury caused by those other factors was not attributable to the dumped imports;
–        the fourth plea alleges infringement of Article 7(2a) of the basic regulation, read in conjunction with Article 9(4) and (5) and Article 18(1), (4) and (5) of that regulation, of the right to sound administration and of the principle of equal treatment, as well as manifest errors of assessment as regards the refusal to apply the lesser duty rule to the applicants’ imports.
The first plea, alleging infringement of Article 2(1), (9) and (10) of the basic regulation and manifest errors of assessment in determining the export price and the normal value, as well as infringement of Article 2(3) to (5) of that regulation in determining the ‘ordinary course of trade’ by reference to adjusted costs of production
Preliminary observations
50      Under Article 1(2) of the basic regulation, ‘a product is to be considered as being dumped if its export price to the Union is less than a comparable price for a like product, in the ordinary course of trade, as established for the exporting country’.
51      To that end, pursuant to Article 2(10) of the basic regulation, a fair comparison is to be made between the export price of the product in question and its normal value.
52      In the first place, as regards the main method of determining the normal value of a product, it is set out in the first subparagraph of Article 2(1) of the basic regulation (judgment of 11 July 2017, Viraj Profiles v Council, T‑67/14, not published, EU:T:2017:481, paragraph 110), which provides that ‘the normal value shall normally be based on the prices paid or payable, in the ordinary course of trade, by independent customers in the exporting country’.
53      The Court of Justice has also specified that the purpose of the concept of ‘ordinary course of trade’ is to ensure that the normal value of a product corresponds as closely as possible to the normal price of the like product on the domestic market of the exporter. Thus, where a sale is concluded on terms and conditions that are incompatible with commercial practice for sales of the like product on that market at the relevant time for determining whether or not dumping has occurred, that sale does not constitute an appropriate basis on which to determine the normal value of the like product on that market (judgment of 1 October 2014, Council v Alumina, C‑393/13 P, EU:C:2014:2245, paragraph 28).
54      The basic regulation does not define the concept of ‘ordinary course of trade’. However, the third subparagraph of Article 2(1) of that regulation expressly provides, inter alia, that prices between parties which appear to be associated or to have concluded a compensatory arrangement with each other may not be considered to be in the ordinary course of trade and may not be used to establish normal value unless it is determined, exceptionally, that those prices are unaffected by that relationship (see, to that effect, judgment of 1 October 2014, Council v Alumina, C‑393/13 P, EU:C:2014:2245, paragraphs 22 and 23 and the case-law cited).
55      According to the Court, the ordinary course of trade is a concept which relates to the character of the sales themselves (see judgment of 1 October 2014, Council v Alumina, C‑393/13 P, EU:C:2014:2245, paragraph 25 and the case-law cited).
56      In the second place, as regards the export price, Article 2(8) of the basic regulation provides that the export price is to be the price actually paid or payable for the product when sold for export to the Union. Article 2(9) of that regulation provides for the possibility of constructing an export price, in particular where it appears that the export price is unreliable because of an association or a compensatory arrangement between the exporter and the importer or a third party.
57      In the third place, as regards the comparison of the export price and the normal value, that comparison is made fairly, in accordance with Article 2(10) of the basic regulation, where it is made at the same level of trade and in respect of sales made at, as closely as possible, the same time and with due account taken of other differences which affect price comparability. Where the normal value and the export price as established are not on such a comparable basis, due allowance, in the form of adjustments, is to be made in each case, on its merits, for differences in factors which are claimed, and demonstrated, to affect prices and price comparability.
58      In the fourth place, as regards the dumping margin, the first sentence of Article 2(12) of the basic regulation states that ‘the dumping margin shall be the amount by which the normal value exceeds the export price’.
59      The first plea is divided into five parts, which it is appropriate to examine in the following order:
–        the fifth part, relating to the calculation of the normal value;
–        the first part, relating to the calculation of the export price and, in particular, the adjustment of the applicants’ export prices in respect of the SG&A expenses and, possibly, profit of the Swiss trading company;
–        the second part, relating to the calculation of the export price and, in particular, the deduction from the applicants’ export price of the SG&A expenses and profits of EuroChem Agro where that company did not act as an importer;
–        the third part, relating to the calculation of the export price and, in particular, the deduction from the applicants’ export price of the SG&A expenses and profits related to operations before arrival at the Union frontier;
–        the fourth part, concerning the fair comparison between the export price and the normal value.
The fifth part, relating to the calculation of the normal value
60      The applicants submit, in essence, that in determining the ordinary course of trade on the basis of adjusted costs of production, the Commission infringed Article 2(3) to (5) of the basic regulation, relating to the calculation of the normal value.
61      According to the applicants, the Commission should not have adjusted their costs of production by replacing the natural gas costs actually incurred by them with prices at the border between Germany and the Czech Republic, adjusted for transportation back to Russia (‘the adjusted Waidhaus price’).
62      In that context, the applicants claim that the cost adjustment method applied by the Commission in the present case is incompatible with the interpretation of Articles 2.2, 2.2.1 and 2.2.1.1 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (GATT) (OJ 1994 L 336, p. 103; ‘the WTO Anti-Dumping Agreement’), set out in Annex 1 A to the Agreement establishing the World Trade Organization (OJ 1994 L 336, p. 3), given by the World Trade Organization (WTO) Appellate Body in its report on the dispute ‘Ukraine – Anti-Dumping Measures on Ammonium Nitrate’ (WT/DS 493/AB/R; ‘the WTO Appellate Body’s report on ammonium nitrate’), issued on 12 September 2019.
63      First, according to the applicants, the Commission assessed the reasonableness of the costs, not the applicants’ records, which is inconsistent with Article 2.2.1.1 of the WTO Anti-Dumping Agreement and thus with Article 2(5) of the basic regulation.
64      Second, the applicants submit that, by relying on natural gas costs adjusted inconsistently with Article 2.2.1 of the WTO Anti-Dumping Agreement in order to determine the ‘ordinary course of trade’, the Commission infringed Article 2(4) of the basic regulation.
65      Third, they submit that, by failing to explain why the adjusted Waidhaus price was apt to yield or capable of yielding a cost of production ‘in the country of origin’, the Commission infringed Article 2.2 of the WTO Anti-Dumping Agreement and thus Article 2(3) of the basic regulation.
66      The Commission, supported by the intervener, disputes the applicants’ arguments.
67      In that regard, it must be observed that the first subparagraph of Article 2(3) of the basic regulation provides for the possibility of using a constructed normal value in three cases: (i) when there are no sales of the like product in the ordinary course of trade; (ii) when those sales are insufficient; and (iii) where, because of the particular market situation, such sales do not permit a proper comparison. According to the second subparagraph of that paragraph, a particular market situation within the meaning of the first subparagraph may be deemed to exist, inter alia, when prices are artificially low, when there is significant barter trade, or when there are non-commercial processing arrangements.
68      In those cases, Article 2(3) of the basic regulation provides that the normal value of the like product is to be calculated on the basis of the cost of production in the country of origin plus a reasonable amount for selling, general and administrative costs and for profits, or on the basis of the export prices, in the ordinary course of trade, to an appropriate third country, provided that those prices are representative.
69      The first subparagraph of Article 2(3) of the basic regulation thus specifies the criteria for disregarding the method for establishing the normal value, based on the prices on the domestic market of the exporting country, and the alternative methods for calculating that value.
70      In that regard, first, it should be noted that, as is apparent from recital 36 of the contested implementing regulation, the Commission considered that the natural gas market in Russia was distorted, essentially on the ground that natural gas prices were regulated in Russia.
71      The Court has held that, in view of that regulated price of natural gas in Russia, the cost of producing the product concerned was affected by a distortion of the domestic Russian market regarding the price of gas, as that price was not the result of market forces (judgment of 7 February 2013, Acron v Council, T‑118/10, not published, EU:T:2013:67, paragraph 51).
72      The Commission therefore did not infringe Article 2(5) of the basic regulation when it considered that the applicants’ records could not be regarded as reasonable and, accordingly, that it could disregard them (see, to that effect and by analogy, judgment of 7 February 2013, Acron v Council, T‑118/10, not published, EU:T:2013:67, paragraphs 52 and 53).
73      For the same reason, the applicants cannot validly complain, on the basis of paragraphs 6.102 and 7.116 of the WTO Appellate Body’s report on ammonium nitrate, that the Commission assessed the reasonableness of the costs. That complaint is, moreover, in no way substantiated.
74      Second, as regards Article 2(4) of the basic regulation, the applicants merely state that, ‘when the [Commission] relied on natural gas costs adjusted inconsistently with Article 2.2.1.1 of the WTO Anti-Dumping Agreement for its ordinary course of trade test, it acted inconsistently with Article 2.2.1 of the WTO Anti-Dumping Agreement, and thus with Article 2(4) of the basic [r]egulation’.
75      However, the applicants do not state the reasons why the costs of natural gas were adjusted inconsistently, other than by referring to paragraph 7.116 of the WTO Appellate Body’s report on ammonium nitrate, which does not make it possible to understand why they consider that the adjustment of the gas price was, in the present case, inconsistent.
76      Moreover, the applicants have not contested recital 34 of the contested implementing regulation, according to which the Commission explained why the ammonium nitrate case brought before the WTO was irrelevant in the present case.
77      Third, the applicants cannot validly complain that the Commission failed to explain why the adjusted Waidhaus price was apt to yield or capable of yielding a cost of production ‘in the country of origin’.
78      As pointed out in paragraph 68 above, Article 2(3) of the basic regulation provides that where, because of the particular market situation, sales of like products do not permit a proper comparison, the normal value of the like product is to be calculated either on the basis of the adjusted cost of production in the country of origin or on the basis of the export prices, in the ordinary course of trade, to an appropriate third country, provided that those prices are representative.
79      In the present case, the Commission used the adjusted Waidhaus price not to approximate the cost of production in the country of origin, but to determine the export price, as is apparent from recital 41 of the contested implementing regulation. Accordingly, it was not for the Commission to explain why the adjusted Waidhaus price would have been apt to yield or capable of yielding a cost of production ‘in the country of origin’.
80      It follows that this part of the plea must be rejected.
The first part, relating to the calculation of the export price and, in particular, the adjustment of the applicants’ export prices in respect of the SG&A expenses and, possibly, profit of the Swiss trading company
81      In addition to an infringement of the obligation to state reasons, the applicants submit, in essence, that the Commission infringed Article 2(9) of the basic regulation by adjusting their export prices to take account of the SG&A expenses and ‘possibly’ profit of the Swiss trading company, in so far as that company does not act as an importer and does not perform any of the functions of an importer.
82      First, according to the applicants, under Article 2(9) of the basic regulation, only operations between the arrival at the Union frontier and the first resale to an independent buyer on the territory of the EU Member States should be taken into account, since the purpose of that provision is to determine, by means of a reverse calculation, an export price at the Union frontier level. The costs and profits linked to operations before arrival at that frontier should therefore be excluded from those adjustments.
83      Second, the applicants submit that the Swiss trading company does not incur any costs that are ‘normally borne by an importer’ in the European Union. Thus, first of all, the transport costs, included in the report of the verification visit carried out at that company’s premises, are those borne by NAK in Russia. Next, the port expenses borne by that company were incurred in a Russian port. Lastly, the loading costs taken into consideration by the Commission were borne by NEV.
84      Third, the applicants claim that the Commission failed to state reasons for the deduction of the SG&A expenses of the Swiss trading company and did not explain ‘which activities of which companies [were] covered by the 4% deduction for profit’.
85      The Commission, supported by the intervener, disputes the applicants’ arguments.
86      As a preliminary point, in so far as the applicants claim, in essence, that the Commission infringed the obligation to state reasons, it should be recalled that the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent Court of the European Union to exercise its power of review (judgment of 10 September 2015, Fliesen-Zentrum Deutschland, C‑687/13, EU:C:2015:573, paragraph 75).
87      That requirement must be appraised by reference to the circumstances of each case, in particular the content of the measure, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgment of 10 September 2015, Fliesen-Zentrum Deutschland, C‑687/13, EU:C:2015:573, paragraph 76).
88      First, as regards the alleged failure to state reasons in relation to the alleged 4% deduction applied in respect of the profits of the Swiss trading company, it should be noted that, in recital 25(e) of the provisional implementing regulation, the Commission identified that company as an exporter related to the applicants. It is also apparent from recital 67 of the provisional implementing regulation that, where justified by the need to ensure a fair comparison between the normal value and the export price, the Commission made adjustments in order to take account, inter alia, of the SG&A expenses of the related exporters, including mark-up.
89      However, it is in no way apparent from the provisional implementing regulation that the Commission made an adjustment to the export price for the profits of the related exporters, in particular those of the Swiss trading company.
90      That is confirmed by paragraph 4.3 of the pre-disclosure, and by Annex 2 thereto, according to which a deduction of 4% was made for the reported sales of EuroChem Agro, but not as regards the other related importers or the Swiss trading company. It is apparent from that annex and, in particular, page 20 thereof, that only the reported profit of EuroChem Agro was adjusted, whereas there is no separate column concerning profits (or adjustments to profit) in the files of the other related importers.
91      Second, as regards the alleged failure to state reasons concerning the deduction of the SG&A expenses of the Swiss trading company, the reasons for that deduction are set out in recital 67 of the provisional implementing regulation, which refers to the ‘need to ensure a fair comparison’ on the basis of Article 2(10) of the basic regulation. That is also apparent from paragraph 4.3 of the pre-disclosure.
92      It follows from the foregoing that the applicants’ complaint alleging a failure to state reasons for the contested implementing regulation in that regard cannot be upheld.
93      As regards the applicants’ claim that the adjustment of the export prices was unlawful, Article 2(8) of the basic regulation provides that, in principle, ‘the export price shall be the price actually paid or payable for the product when sold for export from the exporting country to the Union’. It is only ‘in cases where there is no export price or where it appears that the export price is unreliable because of an association or a compensatory arrangement between the exporter and the importer or a third party’ that the first subparagraph of Article 2(9) of the basic regulation allows the export price to be constructed on the basis of the price at which the imported products were first resold to an independent buyer.
94      In that regard, Article 2(9) of the basic regulation provides that:
‘In cases where there is no export price or where it appears that the export price is unreliable because of an association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported products are first resold to an independent buyer, or, if the products are not resold to an independent buyer, or are not resold in the condition in which they were imported, on any reasonable basis.
In those cases, adjustment for all costs, including duties and taxes, incurred between the importation and resale, and for profits accruing, shall be made so as to establish a reliable export price, at the Union frontier level.
The items for which adjustment shall be made shall include those normally borne by an importer but paid by any party, either inside or outside the Union, which appears to be associated or to have a compensatory arrangement with the importer or exporter, including usual transport, insurance, handling, loading and ancillary costs, customs duties, any anti-dumping duties, and other taxes payable in the importing country by reason of the importation or sale of the goods, and a reasonable margin for selling, general and administrative costs and profit.’
95      Accordingly, the third subparagraph of Article 2(9) of the basic regulation states that the items for which an adjustment is to be made also include the costs incurred by a party established outside the European Union, in so far it appears to be associated and those costs would normally be borne by an importer or by a third party. That provision cannot therefore be limited solely to the adjustment of the costs normally borne by importers and which arose only between the time when the product concerned crossed the Union frontier and when it was first resold to an independent buyer, without undermining the effectiveness of Article 2(9) of that regulation.
96      Thus, as regards the applicants’ argument that Article 2(9) of the basic regulation applies only to the costs borne by companies acting as importers, the first subparagraph of that provision refers, in its own words, to the ‘importer or a third party’, so that it necessarily includes entities which do not themselves import the product concerned. Furthermore, the third subparagraph of that provision refers both to costs normally borne by an importer and to those which may be borne by ‘any party, either inside or outside the Union’.
97      As the Commission rightly points out, by Article 2(9) of the basic regulation, the legislature intended to include the costs of companies which do not import the product concerned, but which incur costs normally associated with such importation. The legislature thus respects the contractual decision-making of economic operators, while covering commercial practices whereby, through arrangements of some kind, the costs ‘normally’ borne by an importer are attributed to a third party, as in the present case with regard to the Swiss trading company, which thus falls within the scope of that provision.
98      Moreover, contrary to what the applicants claim, it is clearly not apparent from Article 2(9) of the basic regulation that only the costs between the arrival of the product concerned at the Union frontier and the first resale to an independent buyer should be taken into consideration for the purposes of determining the export price.
99      As the Commission rightly points out, there may be cases where costs incurred by intermediaries before importation form part of the export price actually paid. Otherwise, exporting producers could use several related intermediaries established outside the European Union in order artificially to inflate export prices.
100    Article 2(9) of the basic regulation is therefore intended to ensure the reliability of export prices, including where transactions between companies in the same group are liable to render export prices unreliable, in particular those charged to a related party.
101    Thus, the aim of Article 2(9) of the basic regulation is to make it possible to adjust the costs borne by related companies, potentially established outside the European Union, precisely in order to avoid a situation in which an exporting producer structures its sales in such a way that all costs normally borne by an importer (such as transport, importation, packing and warehousing costs and other SG&A expenses, including profit) are unlikely to be taken into account for the purposes of determining the export price. If that were not the case, the Commission would be unable to set an export price that is reliable for the purposes of determining whether there is dumping.
102    It is, moreover, to that effect that the Court held that Article 2(9) of the basic regulation does not preclude adjustments being made for costs incurred before importation, inasmuch as those costs are normally borne by the importer (see judgment of 17 March 2015, RFA International v Commission, T‑466/12, EU:T:2015:151, paragraph 41 and the case-law cited).
103    Furthermore, as regards the adjustment made by the Commission where the exporting producer and importer are associated, it is for the interested party who intends to dispute the extent of the adjustments made on the basis of Article 2(9) of the basic regulation, inasmuch as the margins established in respect of SG&A expenses and profits are excessive, to supply specific evidence and calculations justifying those claims and, in particular, the alternative rate that it suggests where applicable (see judgment of 17 March 2015, RFA International v Commission, T‑466/12, EU:T:2015:151, paragraph 44 and the case-law cited).
104    The applicants are associated with the Swiss trading company, the related importer EuroChem Agro and the related traders established in the European Union, in that they all belong to the same group, as is apparent from recital 37 of the provisional implementing regulation (see, by analogy, judgment of 17 March 2015, RFA International v Commission, T‑466/12, EU:T:2015:151, paragraph 39).
105    Moreover, first, the applicants have not demonstrated to the requisite legal standard that such costs and expenses could not be regarded as costs normally borne by an importer of the product concerned in the European Union, even though they are directly linked to the movement of the product concerned in its country of production.
106    Second, the applicants admit, in paragraphs 5, 6 and 8 of the reply, that those costs and expenses were actually borne by the Swiss trading company or by NEV and merely claim that they cannot be regarded as costs normally borne by an importer.
107    It follows that the Commission was fully entitled to take account of the transport costs, the port expenses and the loading costs.
108    It follows from all the foregoing that this part of the plea must be rejected.
The second part, relating to the calculation of the export price and, in particular, the deduction from the applicants’ export price of the SG&A expenses and profits of EuroChem Agro where that company did not act as an importer
109    The applicants submit, in essence, that the Commission infringed Article 2(9) of the basic regulation by deducting from their export price the SG&A expenses and profits of EuroChem Agro, in respect of the part of its sales that were made to independent customers as opposed to the related traders of the EuroChem Group. For those sales to independent customers, EuroChem Agro bore only transport costs up to the Union frontier, but not the subsequent costs of customs clearance and storage, which were borne by the independent customers. According to the applicants, this is confirmed by the unrelated importers’ responses to the questionnaire sent to them by the Commission. Therefore, EuroChem Agro did not perform any of the functions of an importer in that case.
110    The applicants submit that, under the second subparagraph of Article 2(9) of the basic regulation, where the export price is constructed on the basis of the price to the first independent buyer, an adjustment for all costs incurred between importation and resale is to be made so as to establish a reliable export price at the Union frontier level. Thus, according to the applicants, the costs linked to operations before arrival at that frontier or relating to operations in third countries should be excluded from those adjustments.
111    The applicants add that recital 57 of the contested implementing regulation is vitiated by an error, on the ground, in essence, that the Commission erred in finding that EuroChem Agro performed ‘all’ the functions of an importer.
112    The Commission, supported by the intervener, disputes the applicants’ arguments.
113    In that regard, it is apparent from Article 2(8) and (9) of the basic regulation, the wording of which is set out in paragraphs 93 and 94 above, that the Commission may treat the export price as unreliable in two cases, namely where there is an association between the exporter and the importer or a third party or on account of a compensatory arrangement between the exporter and the importer or a third party. In any other case, where an export price exists, the Commission is required to base its determination of dumping on that price (judgments of 21 November 2002, Kundan and Tata v Council, T‑88/98, EU:T:2002:280, paragraph 49, and of 25 October 2011, CHEMK and KF v Council, T‑190/08, EU:T:2011:618, paragraph 26).
114    Consequently, the first subparagraph of Article 2(9) of the basic regulation does not preclude costs borne by entities not acting as importers from being taken into consideration for the purposes of determining the export price. Indeed, that first subparagraph refers to an association or a compensatory arrangement ‘between the exporter and the importer or a third party’.
115    That conclusion is confirmed by the third subparagraph of Article 2(9) of the basic regulation, which provides that the items for which adjustment is to be made ‘shall include those normally borne by an importer but paid by any party, either inside or outside the Union, which appears to be associated’. It is apparent from that wording that costs borne or paid by an entity not acting as an importer are not excluded from the scope of that provision. Furthermore, such an exclusion would, as is apparent from that provision, run counter to the first subparagraph of that paragraph, the very purpose of which is to establish a reliable export price in the very cases where that price is unreliable.
116    It follows that the question whether EuroChem Agro, which, it is not disputed, forms part of the EuroChem Group, should or should not be classified as an ‘importer’ or as a ‘related importer’ is irrelevant. All that needs to be determined is whether, in accordance with the case-law referred to in paragraph 102 above, the expenses deducted by the Commission were costs normally borne by the importer.
117    It was found in paragraph 105 above that, although EuroChem Agro did not carry out physical customs clearance for the products which it then sold to independent customers, it assumed responsibility for the costs of transporting those products to the Union frontier, with the result that it bore costs which are normally borne by an importer, within the meaning of Article 2(9) of the basic regulation, which justifies an adjustment in that regard.
118    Consequently, this part of the plea must be rejected.
The third part, relating to the calculation of the export price and, in particular, the deduction from the applicants’ export price of SG&A expenses and profits related to operations before arrival at the Union frontier
119    The applicants submit, in essence, that the Commission infringed Article 2(9) of the basic regulation by deducting from the export price the SG&A expenses and profits of the Swiss trading company and of EuroChem Agro, in connection with EuroChem Agro’s sales to related companies in France, Spain and Bulgaria.
120    First, the applicants state that expenses relating to operations before arrival at the frontier should be excluded from adjustments. In the present case, the Commission adjusted all SG&A expenses and profits of the related companies, without taking account of the fact that some of those expenses did not correspond to operations that took place between importation and resale, so that they could not be adjusted.
121    Second, the applicants claim to have demonstrated and quantified the amount of pre-importation expenditure and profits borne by the related companies, which the Commission should not have deducted for the purposes of determining the export price. That amount corresponds to the SG&A expenses and profits generated by the Swiss trading company and by EuroChem Agro in respect of sales of UAN to independent entities in the European Union.
122    Third, the applicants submit that their claims were rejected without any statement of reasons.
123    The Commission, supported by the intervener, disputes the applicants’ arguments.
124    In that regard, it should be noted that, as is apparent from paragraph 21 of the reply, the applicants call into question only the calculation of the SG&A expenses and profits of the related traders in connection with the activities of the Swiss trading company and of EuroChem Agro that took place before arrival at the Union frontier.
125    Consequently, this part of the present plea is based on the same incorrect premiss as the first and second parts of the first plea, according to which the first subparagraph of Article 2(9) of the basic regulation precludes expenses incurred before importation from being taken into consideration.
126    As the Commission rightly contends, it is irrelevant whether the SG&A expenses and profits reported relate to expenses incurred before or after importation, since it is the expenses related to the final sale within the European Union which, because of the existence of an intra-group relationship, may be adjusted in accordance with Article 2(9) of the basic regulation.
127    As has already been observed in paragraphs 105 and 117 above, the expenses borne by the Swiss trading company and by EuroChem Agro, even in respect of activities that took place before arrival at the Union frontier, could legitimately be regarded by the Commission as costs that are normally borne by an importer, within the meaning of Article 2(9) of the basic regulation. Thus, the Commission was also entitled to deduct an amount to account for the profit of the Swiss trading company and of EuroChem Agro for the purposes of determining the export price of the product concerned produced by them.
128    It follows that the applicants’ argument that the Commission failed to take account of the fact that they had demonstrated and quantified the amount of the expenses and profits of the Swiss trading company and of EuroChem Agro, which they claim were improperly deducted, is inoperative.
129    Furthermore, as regards the applicants’ claim that the Commission rejected their complaint without providing any statement of reasons, it is sufficient to refer to recitals 56 and 57 of the contested implementing regulation, which adequately explain the reasons for that rejection and enable the Court to exercise its power of review.
130    It follows that this part of the plea must be rejected.
The fourth part, concerning the fair comparison between the export price and the normal value
131    The applicants submit, in essence, that the Commission infringed Article 2(1) and (10)(k) of the basic regulation by rejecting their request for an adjustment of the normal value to take account of the SG&A expenses and profit of EuroChem Trading RUS, LLC.
132    The applicants claim that the EU companies associated with them and EuroChem Trading RUS performed the same selling functions on their respective markets. They submit that, since the Commission made downward adjustments to the export price in order to take account of the SG&A expenses and profits of the EU companies associated with them, a downward adjustment to the normal value in respect of the SG&A expenses and profits of EuroChem Trading RUS should also have been made to avoid an asymmetry between the normal value and the export price. In that context, in their submission, the fact that they and EuroChem Trading RUS form a single economic entity is not a valid ground for refusing an adjustment under Article 2(10)(k) of the basic regulation, to the extent that they and EU trading companies also constitute a single economic entity.
133    In response to the plea of inadmissibility raised by the Commission, the applicants state that the fourth part of the first plea is clearly explained and substantiated in the application.
134    The applicants also add that the Commission’s contention that they did not provide sufficient evidence to establish that the functions performed by EuroChem Trading RUS and by their trading companies in Switzerland and in the European Union were identical had not been raised during the investigation and should therefore be disregarded.
135    The Commission, supported by the intervener, disputes the applicants’ arguments.
136    In that regard, it must be noted that the fourth part of the first plea is based on the assertion that the applicants ‘demonstrated that [SG&A expenses] and profits of EU Trading Companies and of the domestic trading company, [EuroChem Trading RUS], that are associated with the same selling functions, are factors which affect domestic and export prices and therefore their comparability’.
137    That passage is supported by footnote 34 to the application, which reads as follows: ‘Comments on Provisional Regulation, pages 22-23 and Annex 8, Annex A.8’.
138    In so doing, the applicants not only resort to a general reference to another document for the purposes of their arguments, but, moreover, do not substantiate the premiss on which that argument is based either.
139    In that regard, it should be borne in mind that, under Article 76(d) of the Rules of Procedure of the General Court, an application is to contain, inter alia, a summary of the pleas in law relied on. In addition, irrespective of any question of terminology, that summary must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without having to seek further information. It is necessary, for an action to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, but coherently and intelligibly, in the application itself, in order to guarantee legal certainty and the sound administration of justice (see judgment of 13 May 2015, Niki Luftfahrt v Commission, T‑162/10, EU:T:2015:283, paragraph 356 and the case-law cited).
140    Furthermore, while the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed to it, a general reference to other documents, even those annexed to the application, cannot make up for the absence of essential arguments in law which, in accordance with the above provisions, must appear in the application. Accordingly, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (see judgment of 15 October 2020, Zhejiang Jiuli Hi-Tech Metals v Commission, T‑307/18, not published, EU:T:2020:487, paragraph 239 and the case-law cited).
141    In the light of the case-law referred to in paragraphs 139 and 140 above, the fourth part of the first plea must be declared inadmissible.
142    In any event, even on the assumption that this part of the plea might be declared admissible, the following findings must be made.
143    First of all, in so far as the applicants base their argument on the need for an adjustment under Article 2(10)(k) of the basic regulation, the Court has held that adjustments made under Article 2(10) of that regulation are different, as regards both their purpose and the conditions under which they are applied, from adjustments made in the construction of the export price. Whereas the latter adjustments are intended to determine the export price corresponding to normal trading conditions, the adjustments made under Article 2(10) are intended to rectify the export price or the normal value already calculated pursuant to the rules laid down in Article 2(3) to (9) of the basic regulation. The adjustments provided for by Article 2(10) of that regulation are made by reference to objective factors corresponding to the particular features of each market (domestic or export), and have a varying impact on conditions and terms of sale, thus affecting price comparability (judgment of 4 May 2017, RFA International v Commission, C‑239/15 P, not published, EU:C:2017:337, paragraph 43; see also, by analogy, judgment of 7 May 1987, Minebea v Council, 260/84, EU:C:1987:206, paragraphs 41 and 42).
144    The applicants have in no way substantiated the reasons why an adjustment under Article 2(10)(k) of the basic regulation would have been justified, and the Commission’s considerations in recitals 26 and 27 of the contested implementing regulation, to which reference is made, do not reveal any manifest error of assessment on its part.
145    Moreover, in so far as the applicants claim that the Commission agreed to deduct the SG&A expenses of EuroChem Trading RUS without deducting the profit of the related trader, that assertion is incorrect, since it is apparent precisely from recital 27 of the contested implementing regulation that the SG&A expenses of the domestic trader were not deducted on the ground that it formed part of the same economic entity.
146    It follows from the foregoing considerations that this part of the plea must be rejected, as must the first plea in its entirety.
The second plea, alleging infringement of Article 3(2), (3) and (6) of the basic regulation, of the right to sound administration and of the principle of non-discrimination, as well as manifest errors of assessment as regards the analysis of the effects of the dumped imports on prices in the Union market for like products
147    The second plea consists of five parts. The first part relates to the adjustment of the Union industry prices in respect of transport costs for delivery of the products to the ports of Rouen and Ghent. The second and third parts, which will be examined together, concern the adjustment for the SG&A expenses and profits of the related selling entities. In the fourth part, the applicants claim that the Commission failed to explain or substantiate its finding relating to price suppression. In the fifth part, they allege that the attribution of injury to the dumped imports was analysed incorrectly.
The first part, relating to the adjustment of the Union industry prices in respect of transport costs for delivery of the products to the ports of Rouen and Ghent
148    The applicants claim, in essence, that the Commission infringed Article 3(2) of the basic regulation by adjusting the Union industry price in respect of transport costs for delivery of the product concerned to the ports of Rouen and Ghent for the purposes of calculating undercutting, whereas it did not make a similar adjustment for the export price of the cooperating exporting producers. According to the applicants, the added transport costs for part of the sales of the sampled Union producers artificially inflate the price at which the Union industry competes bilaterally with imports in a biased way that favours the interests of the Union industry.
149    In that respect, first, the applicants submit that there is a significant asymmetry in the undercutting calculation, since sales by the sampled Union producers that were delivered within the European Union to Rouen and Ghent were compared with the Union frontier CIF prices of cooperating exporting producers, regardless of the destination of those sales and of whether or not they were in competition with the sales by the sampled Union producers.
150    In the first place, according to the applicants, a fair comparison required aggregated CIF import prices to be compared with the aggregated ex-works prices of the sampled Union producers (that is to say, a destination-neutral comparison) or, in the alternative, the Commission should have adjusted both import prices and prices of the sampled Union producers to take account of the transport costs incurred up to the same Member State of sale, before aggregating and comparing them (that is to say, a destination-specific comparison).
151    The applicants state that they do not argue, in that context, that domestic sales and imports were compared on a transaction-specific basis. Furthermore, although the prices of the sampled Union producers were aggregated, those prices reflect prices for delivery to the Member State in which the sale eventually took place.
152    In addition, they submit that it is inapposite to state that imports that were not destined for France and Belgium would not require any adjustment, since this assumes that they were customs cleared in and destined for Lithuania, Poland or the Netherlands, and that they are thus somewhat comparable to the Union producers’ ex-works sales. In that regard, the applicants emphasise that a significant share of their sales were destined for [confidential], (1) which is not comparable to the sales delivered in France and Belgium or to the ex-works sales taken into consideration for the Union producers.
153    In the second place, the applicants claim, in essence, that competition in Rouen or Ghent did not warrant such an adjustment, since, according to data from the Statistical Office of the European Union (Eurostat), 35% of imports from Russia were not destined for France or Belgium, even though they were compared with the average sales price of the sampled Union producers which included transport costs to western Europe. According to the applicants, there is nothing in the investigation file that undermines their claim that 35% of Russian imports were not destined for Rouen and Ghent.
154    Contrary to the Commission’s assertion, exports made by the applicants to eastern Europe do not ‘directly compete’ with the sampled Union producers’ sales in eastern Europe, since the Union industry does not make any sales in [confidential]. Consequently, the applicants submit that the finding that the exports made by them to eastern Europe were ‘directly competing’ with the sampled Union producers’ sales in eastern Europe is incorrect. In addition, according to the applicants, 37% of their sales were not destined for any of the destinations taken into account by the Commission in determining the Union industry price (namely Rouen or Ghent, Lithuania, the Netherlands and Poland).
155    Second, the applicants submit that the adjustment for transport costs was applied because of the competitive lacunas of a Union producer, established in Lithuania, rather than of the Union industry as a whole.
156    Third, on the basis of Tables 3 and 7 of the provisional implementing regulation, the applicants claim that, without adjustments for transport costs, and without taking into account level of trade issues, imports were not undercutting the prices of the Union domestic industry. In the reply, they state that, although they had added customs duties by mistake when calculating the landed price for Trinidad and Tobago, the other undercutting calculations provided did not contain any error and the undercutting margin for Trinidad and Tobago is still negative. The applicants claim that they cannot provide undercutting calculations with the degree of precision required by the Commission.
157    The Commission, supported by the intervener, disputes the applicants’ arguments.
158    As a preliminary point, the following observations should be made.
159    In connection with the sampling of Union producers, the representativeness of which is not disputed by the applicants, the Commission selected three Union producers, together accounting for more than 50% of the total Union production and sales volumes (see paragraph 13 above). Those three companies were located, respectively, in Lithuania (AB Achema), Poland (Grupa Azoty Zaklady Azotowe Pulawy S.A.) and the Netherlands (OCI Nitrogen B.V.). For approximately 60% of their sales, the ex-works sales price was used for the undercutting calculations. As to the remaining 40%, which correspond to sales by the Union industry that incurred sea freight for delivery of the products to ports such as Rouen and Ghent, the prices for delivery to those ports were used.
160    The reasons for that adjustment of prices to CIF level are set out in recital 128 of the provisional implementing regulation and recitals 107 and 173 of the contested implementing regulation, as well as footnote 19 thereto. The Commission stated, inter alia, in recital 128(ii) of the provisional implementing regulation, that the two largest producers in the sample were located in Poland and Lithuania, whereas the largest markets for UAN were in western Europe, and that those two producers competed in eastern Europe on the basis of ex-works and CIF prices with Russian imports and in western Europe on the basis of delivered prices with imports from Trinidad and Tobago, Russia and the United States.
161    The Commission concluded, in recital 129 of the provisional implementing regulation, that, in order to examine whether there was price undercutting, it was appropriate to adjust 40% of the sales of the two sampled Union producers located in eastern Europe (namely Achema in Lithuania and Grupa Azoty in Poland), so that those sales could be compared in terms of their actual competition with the imports concerned. Thus, the weighted average of the selling prices of the sampled Union producers was compared with the CIF prices of the exporting producers, whether they relate to sales in eastern Europe or in western Europe.
162    Under Article 3(1) of the basic regulation, ‘pursuant to this Regulation, the term “injury” shall, unless otherwise specified, be taken to mean material injury to the Union industry, threat of material injury to the Union industry or material retardation of the establishment of such an industry and shall be interpreted in accordance with the provisions of this Article.’
163    In accordance with Article 3(2) of the basic regulation, a determination of injury is to be based on positive evidence and is to involve an objective examination of, first, the volume of the dumped imports and the effect of the dumped imports on prices in the Union market for like products and, second, the consequent impact of those imports on the Union industry.
164    Article 3(3) of the basic regulation, for its part, provides inter alia that, with regard to the effect of the dumped imports on prices, consideration is to be given to whether there has been significant price undercutting by the dumped imports as compared with the price of a like product of the Union industry, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which would otherwise have occurred, to a significant degree.
165    It thus follows from the provisions of the basic regulation referred to in paragraphs 162 to 164 above that they do not lay down any particular method for determining the effect of the dumped imports on prices of like products of the Union industry (see, to that effect, judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑301/16, EU:T:2019:234, paragraph 175).
166    Moreover, according to settled case-law, the determination of the existence of injury 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 judgment of 29 January 2014, Hubei Xinyegang Steel v Council, T‑528/09, EU:T:2014:35, paragraph 53 and the case-law cited; see also, to that effect, judgment of 10 September 2015, Bricmate, C‑569/13, EU:C:2015:572, paragraph 46 and the case-law cited).
167    As is clear from recital 108 of the contested implementing regulation, the methodology used by the Commission in the present case did not consist of comparing the Union frontier CIF price of the exporting producers with the ex-works price of the Union producers. According to the Commission, the situation in the present case was so exceptional that it justified the approach chosen for the reasons set out in recital 128 of the provisional implementing regulation.
168    The arguments put forward by the applicants must be examined in the light of the foregoing considerations.
169    In the first place, in so far as the applicants claim that the adjustment made is asymmetrical (see paragraph 149 above), they have not disputed the fact that the Commission had aggregated the prices of the sampled Union producers, regardless of their destination, and had compared them with the applicants’ import prices into the Union market, since the Union market for UAN was the entire territory of the European Union, as opposed to two separate regional markets.
170    Moreover, contrary to the applicants’ assertions, the aggregate prices of the Union producers were not expressed on a destination-specific basis and do not reflect the additional costs associated with delivery of the products to the Member State of sale.
171    For sales to, for example, France or Spain, which were made by the two sampled Union producers located in eastern Europe and which were transported by sea, the Commission states that it added to the ex-works price the transport costs of shipping UAN in a tank from the ports in Poland and Lithuania to the ports of Rouen and Ghent, but not the costs of onward transportation. Consequently, the Union producers’ prices adjusted for sea freight do not reflect the final destination of the product and also do not reflect the additional costs associated with delivery of the products to the Member State of sale, as is the case with the Union frontier CIF price declared by the applicants.
172    For other sales, it is apparent from Annex 3 to the definitive disclosure of 12 July 2019 (see paragraph 9 above) that the ex-works price of the sampled Union producers does not include the price of onward transportation to other Member States. The Commission takes the example, in its written pleadings, of the sales made by Azoty, located in Poland, to the first independent customers in Poland, Bulgaria or France, for which it explains that it used the ex-works sales price, without any adjustment for sea freight. Thus, the Union industry’s sales that did not involve sea freight (that is to say, unadjusted ‘local’ sales) resulted in road transport costs for the customer, which were not taken into consideration when determining the Union industry price, as is the case for imports from Russia.
173    In both cases, the costs of transport to the first independent customer must still be borne.
174    It follows that the aggregate prices of the Union producers were not expressed on a destination-specific basis and do not reflect the additional costs associated with delivery of the products to the Member State of sale.
175    Consequently, the applicants’ argument that the adjustment made is asymmetrical, on the ground that the aggregate prices of the Union producers were expressed according to the destination of sales, is based on an incorrect premiss and must therefore be rejected.
176    In the second place, in so far as the applicants claim, in essence, that competition in Rouen or Ghent did not justify such an adjustment, since 35% of imports from Russia were not introduced into France and Belgium and those sales were not adjusted for transport costs (see paragraph 152 above), it should be noted that, in recital 111 of the contested implementing regulation, the Commission rejected the applicants’ claim relating to the asymmetry in the adjustment made between the Union industry and exports, which were already based on those same figures, explaining that the Union selling prices had been adjusted only where appropriate (for transport to Rouen and Ghent), but not for all other sales. Taking those data into account, it is apparent that 65% of imports from Russia were destined for France or Belgium, which represents a significant share of the Russian imports. Furthermore, all the imports from Trinidad and Tobago and the United States took place in Rouen or Ghent. Consequently, most of the imports from the countries concerned took place in Rouen or Ghent.
177    The Commission did not therefore make a manifest error of assessment in making the adjustment in the light of the high level of competition in Rouen and Ghent, in so far as it allows a comparison between 40% of Union sales and 87.86% of the total volume of imports from the countries concerned (65% for Russia and 100% for Trinidad and Tobago and the United States), including transport costs to those main ports.
178    It cannot therefore be validly argued that the adjustment at issue affects the objectivity and fairness of the comparison made by the Commission.
179    In any event, and assuming that fairness must be assessed even though the adjustment at issue is warranted, the following should be noted.
180    In order to determine whether the Commission should, as the applicants maintain, also have adjusted their export prices to take account of the transport costs which they would have incurred in order to reach the same Member State of sale as the Union producers, account must be taken of the export figures provided by the applicants, since it is not disputed that they were more accurate than those of Eurostat.
181    According to the Commission, the export figures in question are set out in Annex C8 to the reply. On the basis of those figures, it is apparent from that annex that 62.7% of the applicants’ sales were delivered to Rouen or Ghent and that the remainder were delivered in [confidential]. However, those delivered in Russia were logically not exported to the European Union and are therefore not relevant for the purposes of establishing the applicants’ sales shares in the European Union. Thus, if sales in Russia are excluded from that calculation, the applicants’ sales shares, calculated on the basis of that annex, are as follows: Rouen or Ghent (65.52%), [confidential].
182    It is apparent from the calculation in question that only [confidential] of the applicants’ exports to the European Union were destined for eastern Europe [confidential] and [confidential] were destined for the ports of Rouen and Ghent.
183    It is in the light of those considerations that the Court must examine whether the Commission erred in considering that an upward adjustment of the applicants’ export prices to eastern Europe was not justified.
184    In the reply, the applicants explain, in essence, that that adjustment was warranted, since the Union industry had not made any sales in eastern Europe, so that the Commission erred in finding that their exports to eastern Europe ‘directly compete’ with the sampled Union producers’ sales in eastern Europe.
185    In that regard, the Commission stated that 60% of the Union industry’s sales, which did not give rise to an adjustment for transport costs, were made locally on an ex-works basis, of which 74% were in eastern Europe and 26% in western Europe. This therefore amounts to a finding that 44.4% of the total Union sales were made locally in eastern Europe and 15.6% in western Europe. Furthermore, the Commission stated, in response to one of the Court’s written questions of 26 January 2021, that recital 107 of the contested implementing regulation confirmed that around 60% of the Union sales were destined for eastern Europe, which has not been disputed by the applicants.
186    It follows that 44.4% of the Union industry’s sales were in competition with 18% of the Russian imports into eastern Europe on the basis of ex-works and CIF prices. The applicants’ claim, referred to in paragraph 154 above, must therefore be rejected. The fact that those sales did not necessarily take place in the same States cannot call into question the fact that those sales were in competition in that region.
187    Next, the applicants claim that a significant share of their sales were destined for [confidential], so that they are not comparable to adjusted sales destined for Rouen or Ghent and local sales.
188    First, as is apparent from paragraphs 171 and 172 above, that claim must be rejected, since the Union industry’s ex-works sales or adjusted CIF price sales to [confidential] were treated in the same way as the applicants’ sales to that State, in so far as the additional costs incurred for transport to the first independent buyer were systematically charged to the first independent buyer.
189    It follows that the applicants have not shown that the Commission’s finding that the adjustments were made because of the high level of competition in Rouen and Ghent is clearly incorrect or resulted in an infringement of the principle of non-discrimination.
190    Second, in so far as the applicants claim that the adjustment for transport costs ‘appears’ to be justified solely by the competitive lacunas of a single Union producer (namely Achema in Lithuania), rather than of the Union industry as a whole (see paragraph 155 above), it must be held that that line of argument, based on recital 174 of the contested implementing regulation, cannot succeed.
191    Recital 174 of the contested implementing regulation reads as follows:
‘For the sales to Rouen or Ghent, as referred to in recital (107) above, transport costs to the CIF point were around 15 to 20% of the CIF price. However, such costs had to be borne year on year and in 2015 and 2016 the industry as a whole, including producers with such CIF costs, were all profitable. As stated above, the trends in this case show that injury was apparent for all three sampled producers and not just those located in Poland and Lithuania. It was therefore concluded that, the transport costs associated with taking the product to market do not attenuate the causal link between the dumped imports and the injury suffered by the Union industry.’
192    Accordingly, in the light of those factors, in particular the third sentence of recital 174 of the contested implementing regulation, which is not disputed by the applicants, and in the absence of evidence supporting their claim that the adjustment for transport costs ‘appears’ to be justified solely by the competitive lacunas of a single Union producer, the present complaint must be rejected as unfounded.
193    Third, in so far as the applicants claim that the adjustments artificially inflated the sales price of the Union producers (see paragraph 156 above), it should be noted, however, that the applicants did not dispute the Commission’s assertion by putting forward sufficiently detailed arguments during the investigation, so that they necessarily could not have been taken into consideration by the Commission.
194    Furthermore, the applicants have also not disputed the Commission’s explanation that the use of Tables 3 and 7 of the provisional implementing regulation is not appropriate for the purposes of establishing the existence of price undercutting and is irrelevant, given that Table 7 includes, for the European Union, sales of product types that were not imported.
195    Lastly, as is apparent from the data in Tables 3 and 7 of the provisional implementing regulation, the Union frontier import prices from Russia and the United States during the investigation period were lower than the sales prices of the sampled Union producers, which is an indication of the price pressure exerted by the dumped imports.
196    Fourth, as regards the applicants’ argument that the Commission did not carry out a careful and impartial examination of the present case and therefore infringed the right to sound administration, it is sufficient to note that such an argument is stated in the abstract and must therefore be rejected as inadmissible.
197    Moreover, and in any event, it must be borne in mind that, where the EU institutions have a broad power of appraisal, respect for the rights guaranteed by the EU legal order in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case (judgments of 13 July 2006, Shandong Reipu Biochemicals v Council, T‑413/03, EU:T:2006:211, paragraph 63, and of 25 June 2015, PT Musim Mas v Council, T‑26/12, not published, EU:T:2015:437, paragraph 112).
198    In that regard, it should be noted that the Commission stated, in recital 111 of the contested implementing regulation, that ‘[the applicants] contested the symmetry between the Union industry side and the export side, claiming, on the basis of a Eurostat extraction, that 35% of imports from Russia would not be to France and Belgium and, therefore, not through ports such as Rouen or Ghent’. In addition, the Commission stated, in the same recital, that that ‘claim [had been] rejected, as for the Union industry sales used in the comparison the CIF prices instead of the ex-works prices have only been used where appropriate in case of sales (typically for sales made via Rouen or Ghent), and not for all other sales’.
199    It follows that the Commission took account of the evidence put forward by the applicants during the administrative procedure and gave reasons for its choice to reject that claim, so that the Commission did not infringe the right to sound administration.
200    Consequently, this part of the plea must be rejected.
The second and third parts, concerning the lack of comparison at the same level of trade and the unlawfulness of the adjustment for the SG&A expenses and profits of the related selling entities
201    The applicants submit, in essence, that the Commission infringed Article 3(2) and (3) of the basic regulation and made a manifest error of assessment by failing to compare the prices of the sampled Union producers with the prices of the cooperating exporting producers at the same level of trade for undercutting purposes.
202    First, relying on the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234, paragraphs 188 and 189), the applicants criticise the Commission for taking into consideration the prices of sales made by the selling entities linked to the main Union producers in order to determine the selling price of the Union industry, while not taking into account the prices of the sales of the applicants’ selling entities to determine the price of the product concerned produced by the applicants.
203    Relying on paragraphs 62 and 63 of the judgment of 30 November 2011, Transnational Company ‘Kazchrome’ and ENRC Marketing v Council and Commission (T‑107/08, EU:T:2011:704), and on paragraph 184 of the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), the applicants claim that a fair comparison required a comparison of the prices applied to independent customers, without adjustment for expenses of related entities. In their submission, Article 2(9) of the basic regulation does not allow the Commission to construct the export price for undercutting purposes.
204    In that regard, the applicants add that the export prices for dumping and undercutting purposes do not necessarily need to be the same. According to the applicants, Article 2(9) of the basic regulation pursues a different objective from that of Article 3(2) and (3) of that regulation. Moreover, customers never decide whether to purchase a product on the domestic market on the basis of a theoretical constructed export price. Lastly, the applicants submit that taking into account the SG&A expenses and profits of related entities does not give rise to any discrimination as compared with direct sales.
205    Second, the applicants claim that the asymmetry in the undercutting calculation is in no way remedied by the additional undercutting calculations made by the Commission at the definitive stage.
206    In the first place, according to the applicants, the first additional calculation, which led to the deduction of the SG&A expenses and profits of the selling entities linked to the sampled Union producers, does not result in a fair comparison, since it does not reflect the price negotiated with customers in the European Union. The ‘prices negotiated’, mentioned in the judgments of 30 November 2011, Transnational Company ‘Kazchrome’ and ENRC Marketing v Council and Commission (T‑107/08, EU:T:2011:704), and of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), should therefore be understood as the prices taken into consideration by customers and on the basis of which customers decide to purchase the product concerned. In the case of indirect sales, this is the price charged by the related entity to the customer. That price could be brought to a CIF level for comparison purposes in order to take account of transport costs within the European Union, but should still include the SG&A expenses and profits of the related entity, since they form an integral part of the ‘negotiated price’. Thus, according to the applicants, the Commission errs in stating that the organisation of distribution channels in the European Union should not be determinative when examining the price effects, since, by deducting the SG&A expenses and profits of related selling entities, it excluded certain costs which are included in the price charged by a producer in connection with direct sales.
207    In addition, 60% of the Union industry’s sales taken into consideration are still made directly to independent customers. According to the applicants, that comparison does not result in a comparison at the same level of trade, since the Union industry’s sales to independent customers were compared with export sales at an intermediate stage (that is, an intra-group sale).
208    The applicants submit that recital 114 of the contested implementing regulation, relied on by the Commission, concerns the difference between the prices applied by the sampled Union producers to related and independent customers, not the prices charged by exporters, so that it is irrelevant. As regards the alleged price difference, the applicants claim that there is no evidence whatsoever that those prices are almost identical. In any event, even if the prices charged to related and independent customers were identical, the related selling entities would still incur costs.
209    In the second place, according to the applicants, the second additional calculation, which excludes sales made by the sampled Union producers through related entities, cannot be considered fair, since it excludes 40% of the sales made by the sampled Union producers without any valid reason.
210    In addition, the second additional calculation does not result in a comparison at the same level of trade since the comparison fails to account for the existence of costs and a profit margin specific to those entities, in accordance with the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234, paragraph 184). Thus, costs associated with the related entity are ignored when computing the adjusted export price, whereas similar costs are included in the direct sale price of the Union industry.
211    In the third place, the applicants submit that the arm’s length principle is irrelevant in the context of the Union industry’s intra-group transactions.
212    Third, according to the applicants’ calculations, at the same level of trade, their undercutting margin was [confidential], as is shown by Annex 10 to their observations on the provisional implementing regulation, which formed part of the investigation file. In the reply, the applicants state that, although they have access only to their own data, the level of trade issues affecting the undercutting calculation are valid for Russia and for Trinidad and Tobago.
213    Fourth, in the reply, the applicants claim that the sales taken into consideration were made to different types of customers. Thus, an independent customer and a related entity are two different types of customer corresponding to different levels of trade.
214    The Commission, supported by the intervener, disputes the applicants’ arguments.
215    As a preliminary point, it should be noted that, in paragraph 176 of the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), the Court held:
‘The calculation of the price undercutting of the imports in question is carried out, in accordance with Article 3(2) and (3) of the basic regulation, for the purposes of determining the existence of injury suffered by the Union industry by reason of those imports and it is used, more broadly, to assess that injury and to determine the injury margin, namely the injury elimination level. The obligation to carry out an objective examination of the impact of the dumped imports, as set out in Article 3(2) of the basic regulation, requires a fair comparison to be made between the price of the product concerned and the price of the like product of that industry when sold in the territory of the Union. In order to guarantee the fairness of that comparison, prices must be compared at the same level of trade. A comparison of prices obtained at different levels of trade, that is to say, one which does not include all the costs relating to the level of trade which must be taken into account, would necessarily be misleading in its results and would not allow a correct assessment to be made of the injury to the Union industry. Such a fair comparison is a prerequisite of the lawfulness of the calculation of the injury to that industry.’
216    In paragraphs 188 and 189 of the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), the Court added:
‘188            … since the Commission took into consideration the prices of sales made by the selling entities linked to the main Union producer in order to determine the price of the like product of the Union industry while not taking into account the prices of sales of Jindal Saw’s selling entities to determine the price of the product concerned produced by Jindal Saw, it cannot be considered that the undercutting calculation was made by comparing prices at the same level of trade.
189            … the price comparison at the same level of trade constitutes a prerequisite of the lawfulness of the calculation of the price undercutting of the product concerned. Accordingly, the calculation of the undercutting as carried out by the Commission in the context of the contested regulation must be considered contrary to Article 3(2) of the basic regulation.’
217    In the present case, it follows from a combined reading of recitals 112 and 114 of the contested implementing regulation that, in the undercutting calculation carried out at the provisional stage and used as the main basis for the definitive calculation, the Commission, with regard to the exporting producers, reduced the prices of their sales in the European Union by the amount of SG&A expenses and profit of their related trading companies, but made no such deduction for Union industry sales via related traders, which represented 40% of the Union industry sample’s sales used for the comparison.
218    As is apparent from paragraph 176 of the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), referred to in paragraph 215 above, the comparison of the prices of the product concerned and the like product of the Union industry at the same level of trade constitutes a prerequisite of the lawfulness of the calculation of the price undercutting of the product concerned. Therefore, the undercutting calculation carried out by the Commission must be considered contrary to Article 3(2) of the basic regulation.
219    It follows that the methodology of calculating price undercutting referred to in recital 112 of the contested implementing regulation is incorrect. As far as the applicants are concerned, those calculations showed undercutting of [confidential] at the provisional stage and of [confidential] at the definitive stage.
220    That appears to be confirmed by recital 113 of the contested implementing regulation, which reads as follows:
‘With regard to [the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234)], the General Court found an error in that the Commission deducted the selling expenses of Jindal’s related importers in the Union from the sales to the first independent buyer, while the selling expenses of the Union industry related selling entities were not deducted from the Union industry sales prices to the first independent customer. The Court therefore considered that the two prices were not compared symmetrically at the same level of trade.’
221    However, after noting, in recitals 112 and 113 of the contested implementing regulation, that some parties called into question the methodology applied in the light of the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), the Commission added, in recital 114 of that regulation, that it intended to take account of that judgment, by supplementing its undercutting calculations with two additional calculations, the first of which is set out in the last sentence of that recital and the second of which, carried out in the alternative, is set out in recital 115 of that regulation.
222    The Court must therefore examine whether the methodology used by the Commission in recitals 114 and 115 of the contested implementing regulation to assess the injury to the Union industry and the application of that methodology are not vitiated by any error.
223    First, with regard to the first additional undercutting calculation, as is apparent from recital 114 of the contested implementing regulation, the Commission found that, given that a minority of the Union industry’s sales were made through related parties and that the SG&A expenses and profit of those related parties were low, the finding of undercutting for the cumulated imports would not be undermined even if the calculations had to be adjusted for those factors. Moreover, it found that deducting the SG&A expenses and profit of the Union producers’ related selling entities would still show undercutting for all exporting producers (but for one), and in any event there would be undercutting for each of the countries concerned.
224    As far as the applicants are concerned, it is apparent from the definitive findings disclosed to them by the Commission during the administrative procedure that that first additional calculation showed price undercutting of [confidential].
225    It follows that, by that calculation, the Commission found and stated reasons for the existence of price undercutting calculated in compliance with the requirement of an objective and fair comparison, since, by deducting SG&A expenses and profit from the selling prices charged by the Union producers’ related entities, it brought the prices used for the Union producers to the same level of trade as those of the exporting producers.
226    In addition, the applicants’ line of argument, based on the fact that they provided evidence that, at the same level of trade, the undercutting margin was [confidential], must be rejected as being out of time and, therefore, inadmissible.
227    Under Article 85(1) of the Rules of Procedure, evidence is to be submitted in the first exchange of pleadings.
228    The calculations at issue are set out in Annex G.1, which was not produced by the applicants in the application, but only in support of paragraph 65 of their observations on the Commission’s responses to the Court’s written questions of 26 January 2021.
229    Moreover, while evidence in rebuttal and the amplification of previous evidence, submitted in response to evidence in rebuttal put forward by the opposing party, are not covered by the time-bar rule in Article 85(1) of the Rules of Procedure (see judgment of 19 September 2019, Zhejiang Jndia Pipeline Industry v Commission, T‑228/17, EU:T:2019:619, paragraph 45 and the case-law cited), the calculations at issue cannot be regarded, in the present case, as evidence in rebuttal or as the amplification of previous evidence, submitted in response to evidence in rebuttal put forward by the opposing party.
230    While the calculations at issue call into question the contentions made in paragraph 28 of the Commission’s responses to the Court’s written questions of 26 January 2021, they merely support an argument which was already set out by the applicants in paragraph 74 of the application and which, at that stage, was not supported by relevant evidence. That paragraph merely states that the applicants’ price undercutting would be [confidential], referring to Annex A.10, which contains the ‘Questionnaire Response of the Swiss Trading Company’ as opposed to the calculation supporting that result.
231    In any event, on the one hand, the requirement of an objective and fair comparison does not prejudge the level of trade at which the Commission must compare prices, but means only that that comparison must be made at the same level of trade with regard to both the prices of the Union producers and those of the exporting producers.
232    On the other hand, turning from the objectivity and fairness of the Commission’s methodology to its implementation, that methodology involves an appraisal of complex economic situations, for which reason judicial review of the Commission’s appraisal is 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, to that effect, judgment of 10 September 2015, Bricmate, C‑569/13, EU:C:2015:572, paragraph 46 and the case-law cited).
233    Furthermore, in so far as the applicants claim that that calculation is contrary to paragraphs 62 and 63 of the judgment of 30 November 2011, Transnational Company ‘Kazchrome’ and ENRC Marketing v Council and Commission (T‑107/08, EU:T:2011:704), it should be noted that, in paragraph 63 of that judgment, the Court stated that the customers were aware of transport costs from the port of customs clearance to their factories and could, therefore, easily calculate the final price from the CIF prices negotiated with them at the port of customs clearance. In the present case, by contrast, it cannot be considered that customers purchasing from related entities were aware of the relationship between the exporting producers and their related entities.
234    In addition, the judgment of 30 November 2011, Transnational Company ‘Kazchrome’ and ENRC Marketing v Council and Commission (T‑107/08, EU:T:2011:704), did not concern a situation such as that in the present case, in which the Commission deducted SG&A expenses and profit from the exporting producers’ prices of sales made through related entities.
235    Lastly, from the same perspective as in paragraph 231 above, it is not apparent from the judgment of 30 November 2011, Transnational Company ‘Kazchrome’ and ENRC Marketing v Council and Commission (T‑107/08, EU:T:2011:704), that the Court ruled out, in general terms, the possibility of taking into consideration, for the purposes of calculating undercutting, CIF landed prices at the exporting producers’ ports of customs clearance.
236    Furthermore, the applicants cannot rely on the judgment of 2 April 2020, Hansol Paper v Commission (T‑383/17, not published, EU:T:2020:139), in paragraph 203 of which the Court held that the Commission had made an error in deciding to deduct SG&A expenses and a profit margin, for the resales of the product concerned by the related undertaking to independent customers, for the purposes of establishing the export price of that product in the injury determination.
237    As has already been stated in paragraph 231 above, the requirement of an objective and fair comparison does not prejudge the level of trade at which the Commission must compare prices.
238    That means that, for the purposes of determining whether there has been price undercutting under Article 3(3) of the basic regulation, the Commission remains free to apply, by analogy, Article 2(9) of that regulation.
239    In the present case, taking into account (i) that there is an association between the applicants and their related entities, (ii) the previous finding that, in connection with the first additional calculation, the price comparison was carried out at the same level of trade, and (iii) that the applicants did not dispute the Commission’s assertion that the Union industry’s sales to its related parties were made at market prices or the accuracy of the first additional undercutting calculation, the Commission was entitled to apply, by analogy, Article 2(9) of the basic regulation to determine whether there was price undercutting, and did not infringe Article 3(2) or (3) of that regulation or make a manifest error of assessment.
240    Second, with regard to the second additional calculation, it is apparent from recital 115 of the contested implementing regulation that the Commission excluded from that calculation the Union industry sales through related parties. Consequently, that calculation relates to approximately 60% of the sales of the parties included in the EU sample. As far as the applicants are concerned, that calculation showed undercutting of [confidential].
241    In that context, the applicants criticise the fact that 40% of the sales of the sampled Union producers were excluded from the undercutting calculation, without any valid reason. In addition, according to the applicants, the second additional calculation does not result in a comparison at the same level of trade since the comparison fails to account for the existence of costs and a profit margin specific to those entities, in accordance with the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234, paragraph 184). Thus, the applicants submit, costs associated with the related entity are ignored when computing the adjusted export price, whereas similar costs are included in the direct sale price of the Union industry.
242    That line of argument must be rejected.
243    In so far as the Commission’s first additional calculation established, to the requisite legal standard, the existence of price undercutting and in so far as the second additional calculation, carried out in the alternative, does not call into question the existence of the price undercutting as found by the Commission’s first additional undercutting calculation, that second calculation cannot validly be relied on to call into question the lawfulness of the contested implementing regulation either.
244    In any event, the applicants cannot validly claim that the comparison of the prices of the Union producers and those of the exporting producers was not carried out at the same level of trade. As is apparent from recital 115 of the contested implementing regulation, the Commission in no way compared the Union industry’s sales to independent customers, on the one hand, with the applicants’ sales to related parties, on the other hand, since it took into account sales made by the exporting producers to independent customers, duly adjusted to CIF level. Moreover, the applicants do not dispute that point.
245    Lastly, the applicants have not shown that the adjusted price of the exporting producers does not include the same price components as those of the Union producers. As the Commission has pointed out, the SG&A expenses and the profits of the related selling entities were not taken into consideration at any point in the comparison.
246    Third, the applicants merely claim that there has been an infringement of the right to sound administration, arguing that the undercutting calculations made at different levels of trade were not based on a careful and impartial examination of all the relevant evidence in the present case, without any further clarification.
247    In that regard, the Commission stated, in recital 112 of the contested implementing regulation, that ‘several interested parties [had] argued that the methodology applied for calculating undercutting was erroneous and incompatible with the judgment [of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234)]’. The Commission specified, in recital 114 of that implementing regulation, that it had ‘decided to supplement the undercutting calculations performed at [the] provisional stage in [the] light of this recent Court [judgment] and the comments received thereon from interested parties’.
248    It follows that the Commission took account of the evidence put forward by the applicants during the administrative procedure and gave reasons for its decision to reject that claim.
249    In the light of those factors, the Commission cannot validly be criticised for failing to observe the right to sound administration.
250    It follows from all the foregoing that these parts of the plea must be rejected.
The fourth part, alleging that the Commission failed to explain or substantiate its finding relating to price suppression
251    The applicants claim, in essence, that the Commission failed to explain and substantiate its finding that the imports caused price suppression on the Union market during the investigation period.
252    According to the applicants, the only evidence of price suppression on the Union market during the investigation period is recital 117 of the contested implementing regulation, according to which ‘sales prices could not be raised to cover substantial increases in costs’. They submit that there is no evidence confirming that imports had the effect of depressing or suppressing prices.
253    The applicants submit that, in the absence of undercutting, there is no indication that the imports prevented the sampled Union producers from increasing their prices in line with their increased costs.
254    Consequently, according to the applicants, the Commission’s finding of price suppression on the Union market during the investigation period is incompatible with Article 3(3) of the basic regulation, is based on a manifest error of assessment and infringes the right to sound administration.
255    The Commission, supported by the intervener, disputes the applicants’ arguments.
256    In the first place, it should be recalled that the first to third parts of the second plea, seeking to challenge the Commission’s undercutting calculations, have been rejected. In the light of that finding, it must be examined whether the Commission’s findings relating to significant price suppression were clearly incorrect.
257    First, the applicants have not disputed recital 130 of the provisional implementing regulation, according to which the product concerned was a commodity, competition was largely based on price alone and its prices were transparent.
258    Second, recital 117 of the contested implementing regulation reads as follows:
‘In addition to the established price undercutting, the investigation also showed that, in any event, the effect of the dumped imports was to cause price suppression on the Union market during the investigation period. The provisional Regulation already focused on the existence of price suppression notably at recitals (149), (166) and (167). This is further corroborated by the data in response to the argument of one interested party below at recital (131). Indeed, as further elaborated in recitals (125) and (131), in the provisional Regulation the price suppression on the Union market was clearly highlighted, as sales prices could not be raised to cover substantial increases in costs as best demonstrated by Table 7. The inability of the Union industry to increase sales prices was caused by the impact the dumped imports at increasing volumes had on the Union market. All these data showed that in addition to the eventual price undercutting, the dumped imports caused significant price suppression within the meaning of Article 3(3) of the [basic regulation].’
259    The data referred to in recital 117 of the contested implementing regulation have not been contested by the applicants either.
260    Third, the applicants have not called into question recital 161 of the contested implementing regulation, which states that:
‘… With regard to the impact of the imports in question on the situation of the Union industry, the Commission recalled that, as compared to the preceding year, the strongest drop in import prices (– 30%) and most pronounced increase in import volumes (+ 50%) was in 2016. Over that same year, the Union industry lost market share (– 14%), its sales prices dropped (– 26%) and its profitability started its dramatic fall into, eventually, significant losses in the investigation period. On those facts, it cannot be disputed that there is a clear causal link between the dumped imports and the injury.’
261    The applicants have not shown that the Commission’s findings as to the existence of significant price suppression, within the meaning of Article 3(3) of the basic regulation, are vitiated by a manifest error of assessment.
262    It follows from the foregoing considerations that the applicants’ claim that there is no evidence confirming that imports have the effect of depressing or suppressing prices must be rejected, a fortiori since it is essentially based on the incorrect premiss that the price undercutting calculation is itself incorrect.
263    In the second place, the applicants merely allege an infringement of the right to sound administration, arguing that the Commission’s findings relating to the significant price suppression were not based on a careful and impartial examination of all the relevant evidence in the present case, without any further clarification.
264    In the present case, since the applicants have not adduced any evidence to demonstrate, in any way whatsoever, that the Commission infringed the right to sound administration, the argument relating to that infringement must be rejected, in accordance with the case-law referred to in paragraph 139 above.
265    It follows that this part of the plea must be rejected.
The fifth part, alleging that the attribution of injury to the dumped imports was analysed incorrectly
266    The applicants submit, in essence, that, when analysing causation, the Commission infringed Article 3(6) of the basic regulation and made a manifest error of assessment, to the extent that it took into account price undercutting and price suppression, the significance or even existence of which had not been properly established.
267    The Commission, supported by the intervener, disputes the applicants’ arguments.
268    That claim, which is otherwise supported only by the argument set out in paragraph 266 above, must be rejected, since, as is apparent from paragraphs 250 and 265 above, the Court rejected the applicants’ complaints alleging that the Commission’s findings on price undercutting and price suppression were incorrect.
269    It follows from the foregoing that this part of the plea must be rejected, as must the second plea in its entirety.
The third plea, alleging infringement of Article 3(7) of the basic regulation, read in conjunction with Article 9(4) of that regulation, and of the right to sound administration, as well as manifest errors of assessment as a result of the failure to analyse whether other known factors were liable to cause injury to the Union industry and whether the injury caused by those other factors was not attributable to the dumped imports
Preliminary observations
270    Article 3(7) of the basic regulation provides that known factors, other than the dumped imports, which at the same time are injuring the Union industry must also be examined to ensure that injury caused by those factors is not attributed to the dumped imports under Article 3(6), which provides that it must be demonstrated, from all the relevant evidence presented, that the dumped imports are causing material injury to Union industry (judgment of 16 April 2015, TMK Europe, C‑143/14, EU:C:2015:236, paragraph 33). Furthermore, it is apparent from Article 3(7), in particular the words ‘known factors … which … are injuring the Union industry’, that that regulation requires the factors which are directly causing injury to be examined, which presupposes the existence of a direct causal link (see, by analogy, judgment of 14 November 2013, Council v Gul Ahmed Textile Mills, C‑638/11 P, EU:C:2013:732, paragraph 28).
271    It is settled case-law that the determination of the existence of injury 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. That is particularly the case as regards the determination of the factors injuring the Union industry in an anti-dumping investigation (judgments of 16 April 2015, TMK Europe, C‑143/14, EU:C:2015:236, paragraph 34, and of 23 April 2018, Shanxi Taigang Stainless Steel v Commission, T‑675/15, not published, EU:T:2018:209, paragraph 108).
272    In determining injury, the EU institutions are under an obligation to consider whether the injury on which they intend to base their conclusions does in fact derive from the dumped imports and must disregard any injury deriving from other factors, particularly from the conduct of Union producers themselves. To that end, it is for the EU institutions to ascertain whether the effects of those other factors were not such as to break the causal link between, on the one hand, the imports in question and, on the other, the injury suffered by the Union industry. It is also for them to verify that the injury attributable to those other factors is not taken into account in the determination of injury within the meaning of Article 3(7) of the basic regulation and, consequently, that the anti-dumping duty imposed does not go beyond what is necessary to offset the injury caused by the dumped imports. However, if the EU institutions find that, despite such factors, the injury caused by the dumped imports is material under Article 3(1) of the basic regulation, the causal link between those imports and the injury suffered by the Union industry can consequently be established (judgments of 16 April 2015, TMK Europe, C‑143/14, EU:C:2015:236, paragraphs 35 to 37, and of 23 April 2018, Shanxi Taigang Stainless Steel v Commission, T‑675/15, not published, EU:T:2018:209, paragraph 109).
273    The third plea consists of five parts. The applicants submit, in essence, that other factors caused the injury, namely, in the first part of the plea, intra-EU competition, in the second part, high transport costs of eastern European producers and, in the third part, the contradictory evolution of urea and gas prices. In the fourth part of the plea, they claim that those factors should be considered individually, but also collectively. The fifth part of the plea concerns the injury elimination level.
The first part, alleging failure to take account of intra-EU competition
274    The applicants submit, in essence, that, when analysing causation, the Commission infringed Article 3(7) of the basic regulation by failing to examine the impact of intra-EU competition.
275    First, according to the applicants, the Commission did not examine whether the alleged impact of the dumped imports on prices did not result from price competition from the non-sampled Union producers.
276    Second, they submit that the Commission examined in isolation the competitive lacunas of the sampled Union producers located in eastern Europe.
277    First of all, with regard to higher gas costs, the applicants claim that the Commission failed to consider that higher gas costs, in absolute terms, would necessarily have an impact on the ability of a producer to recover such costs and that evidence in the file showed that the two eastern European sampled producers were subject to regulated, and higher, gas prices.
278    Next, with regard to higher transport costs, they submit that the Commission failed to take account of the fact that the sample of Union producers was largely dominated by eastern European producers, which incur high transport costs, unlike western European producers, and that only one producer (Achema) incurred losses.
279    Lastly, according to the applicants, the fact that the Union industry was able to make reasonable profits in the first two years of the analysis period despite its higher gas costs and geographic location does not show that price pressure was exerted by the targeted imports, other Union producers or, more generally, unfavourable market conditions.
280    Third, they claim that the Commission cannot simply allege that there is no information on the file that the prices of non-sampled Union producers would be substantially different from the prices of the sampled producers. Furthermore, the evidence presented to the Commission supported the conclusion that the Union producers located in western Europe were likely to exert price pressure on the two largest sampled Union producers located in eastern Europe. Thus, according to the applicants, that evidence shows that the intra-EU prices were below the landed price of imports.
281    The Commission, supported by the intervener, disputes the applicants’ arguments.
282    In that regard, it is necessary to examine whether, as the applicants claim, the Commission infringed Article 3(7) of the basic regulation or made a manifest error of assessment by failing to examine whether the injury found was caused by intra-EU competition.
283    First, it should be noted that the applicants do not dispute the representativeness of the sample of Union producers, established in accordance with Article 17(1) of the basic regulation. On account of that very characteristic, there can be no obligation on the Commission to include non-sampled Union producers in its causation analysis.
284    As the Commission correctly stated, if, on the basis of the sample of Union producers, material injury is established and that injury is attributed to the dumped imports, an analysis of the situation of the non-sampled Union producers would call into question the representativeness of the sample of Union producers.
285    Moreover, Article 17(1) of the basic regulation does not provide that the sampling that the Commission may use is intended to be used or may be used only for certain parts of the Commission’s analysis. On the contrary, it is apparent from that provision that such sampling, when used, is intended to apply to the ‘investigation’, taken as a whole.
286    It follows that the applicants cannot validly maintain that the Commission was required to investigate whether the alleged impact of the dumped imports on prices did not result from price competition from Union producers not included in the sample, the representativeness of which they do not dispute.
287    That conclusion cannot be called into question by the applicants’ reference to paragraph 172 of the judgment of 25 October 2011, CHEMK and KF v Council (T‑190/08, EU:T:2011:618), according to which the analysis of causation does not necessarily have to be carried out at the level of the Union industry as a whole. The solution reached in that judgment did not relate to competition from non-sampled Union producers. In that context, the Court stated in that paragraph that it was possible that, in certain circumstances, injury caused individually to a Union producer by a factor other than the dumped imports must be taken into consideration where it has contributed to the injury observed in relation to the Union industry as a whole.
288    Second, in so far as the applicants complain that the Commission examined in isolation the competitive lacunas of the sampled Union producers located in eastern Europe, it must again be held that that argument cannot be accepted, since the applicants do not criticise the representativeness of the sample of Union producers.
289    In addition, the applicants have not established that the Commission’s assessment in recital 172 of the contested implementing regulation, which reads as follows, is clearly incorrect:
‘On the issue of gas prices as incurred by AB Achema and Grupa Azoty, the Commission examined, at all three sampled Union producers, how and at what cost gas was sourced. Although gas prices and other gas sourcing costs clearly vary from one Member State to another it was clear that the gas price trend was similar for all three producers. Gas costs fell in 2016 and rose in 2017 and the investigation period (see also the table under recital (146) above). All three producers saw a steady fall in profitability over the analysis period as higher costs (the largest and most heavily fluctuating cost being gas) were not matched by higher selling prices in 2017 and the investigation period. In other words, even if the absolute figures for some of these indicators might have varied from one producer to the other (as claimed by EuroChem after final disclosure), injury was apparent in all three producers and there is no indication or evidence on the file that a different sample would have changed the injury findings.’
290    Furthermore, the applicants have not disputed the Commission’s finding in respect of the sampled Union producer located in western Europe, to the effect that its profit margins were well below the profit in 2017, thus highlighting the fact that that producer was also affected by the price pressure exerted by the dumped imports.
291    Lastly, the applicants have not shown that intra-EU prices were no higher than the sales prices of the sampled Union producers. They mention data based on their own sources and do not show, first, that the data used by the Commission in accordance with Table 3 of the provisional implementing regulation were incorrect and, second, that its findings were, on that date, clearly incorrect.
292    Accordingly, in the light of the foregoing considerations, it must be held that, by not examining the impact of intra-EU competition as a factor that caused the injury found, the Commission neither infringed Article 3(7) of the basic regulation nor made a manifest error of assessment. Nor, consequently, did it infringe the applicants’ right to sound administration, even if that allegation, which is limited to the mere assertion that that right has been infringed, satisfied the requirement of Article 76(d) of the Rules of Procedure, and were therefore admissible.
293    It follows that this part of the plea must be rejected.
The second part, alleging failure to take account of the high transport costs of the eastern European producers
294    The applicants submit, in essence, that, when analysing causation, the Commission infringed Article 3(7) of the basic regulation by attributing to the dumped imports the injury caused by the high transport costs of the eastern European producers.
295    First, according to the applicants, the Commission itself acknowledged in recital 128(ii) of the provisional implementing regulation that high transport costs had had a negative impact on the sampled Union producers.
296    Second, the applicants submit that the high transport costs of the sampled Union producers prevented those producers from being competitive in western Europe, be it against imports or other western producers, since their share of transport costs to the CIF point was higher than the undercutting margin.
297    Third, they claim that the price suppression was equally linked to the inability of the sampled eastern European producers to recover their high transport costs when selling on western European markets.
298    The Commission, supported by the intervener, disputes the applicants’ arguments.
299    In that regard, it should be noted that this part of the plea is based, in essence, on three extracts from the contested implementing regulation, on which the applicants base their argument that the price undercutting and price suppression were caused by high transport costs, costs which the Commission failed to take into account.
300    However, the applicants’ argument that transport costs were not taken into account in the non-attribution analysis is contradicted precisely by the explanations provided by the Commission in recitals 173 and 174 of the contested implementing regulation.
301    Recital 173 of the contested implementing regulation reads as follows:
‘With regard to the issue that the geographic location of the sampled Union producers caused injury because of the transport costs involved in bringing the product concerned to market, there were 20 known producers of the product concerned in the investigation period with production facilities in all parts of the Union. Furthermore, within the sample, although some of the sales volume was transported by sea freight to other parts of the Union, most sales were sold more locally. … it is not unusual that producers have customers at such a distance that transport costs are significant. What is however important for the Commission’s investigation is that the prices at such markets are [suppressed] because of the impact of the unfairly priced imports. Also it should be pointed out that the Union industry was able to make reasonable profits in the first two years of the analysis period despite its geographical location.’
302    As regards recital 174 of the contested implementing regulation, reference is made to paragraph 191 above.
303    The applicants have not disputed the facts and considerations mentioned in recitals 173 and 174 of the contested implementing regulation, from which it is clear that the applicants’ argument that transport costs were not taken into account is based on an incorrect premiss.
304    Consequently, this part of the plea must be rejected.
The third part, alleging failure to take account of the contradictory evolution of market drivers for urea and gas
305    The applicants submit, in essence, that, when analysing causation, the Commission infringed Article 3(7) of the basic regulation, made a manifest error of assessment and infringed the principle of sound administration by failing to examine, together, the downward evolution of urea prices that directly affects UAN prices and the upward evolution of gas costs that directly affects UAN costs.
306    In the first place, according to the applicants, declining UAN prices during the period considered are not the result of imports, but movements in urea prices. Any such increase may have resulted in customers switching from UAN to another nitrogen-based fertiliser for which prices were aligned with urea.
307    In the second place, the applicants submit that the profitability of the sampled Union producers is linked to their costs of manufacturing, which are themselves linked to gas purchase prices. Increasing gas costs over the period considered therefore resulted in a decline in profitability. High gas prices do not prevent profitability peaks, so long as market conditions so allow, that is to say, where urea prices are at a high level. The applicants claim that the Commission does not consider at all the possible injurious effects of the natural gas costs incurred by the Union industry.
308    According to the applicants, it is the combination of both lower urea prices and higher gas costs, rather than each factor individually, that explains why profitability was impacted by market fluctuations.
309    The Commission, supported by the intervener, disputes the applicants’ arguments.
310    First, in so far as the applicants claim that the Commission ‘failed to consider’ the evolution of urea prices and gas costs, such a complaint cannot be upheld, since it is clear precisely from recitals 157 to 169 of the contested implementing regulation that the Commission took those factors into consideration.
311    Second, recital 163 of the contested implementing regulation reads as follows:
‘The exporting producer … disagreed with the Commission’s conclusion that spot prices for urea at various points around the world show price variations, depending on the market, over the period considered. It submitted that the information referred to by the Commission in fact showed that global urea prices are correlated. Moreover, it criticised the four markets mentioned in the material referred to in footnote 15 [to] the provisional Regulation, as two of them were in China, which the Commission considers distorted with regard to urea, and claimed that US Gulf FOB barge or Middle East granular FOB benchmark market prices, allegedly much more important, were missing. In this respect, the Commission noted that, as to the quality of the material, since no interested party timely submitted copyright-free graphs on fertiliser prices, the Commission used some available copyright-free information that shows in any case that in the recent past urea pricing followed different patterns in different parts of the world.’
312    It is thus sufficiently clear from recital 163 of the contested implementing regulation that the Commission found that no interested party had submitted copyright-free material on fertiliser prices in good time, forcing it to rely on the copyright-free information that was available. That information shows, in any event, that in the recent past urea pricing had followed different patterns in different parts of the world.
313    The applicants have not disputed the fact that the evidence submitted by the interested parties was not copyright-free and have not claimed that the Commission could have used that information, although protected under copyright.
314    Furthermore, as regards the evidence presented by one of the world’s largest producers of nitrogen fertiliser, Yara, in the ‘Fertilizer Industry Handbook’, on the basis of which the Commission concluded that there was no world price for urea, the applicants claim that the trends observed in China could not be regarded as representative, since they resulted from China’s decision to withdraw from the international urea markets.
315    However, it must be held, as the Commission argues, that the reasons given to justify those differences are not relevant, given that those reasons cannot call into question the fact that there were different prices. Even if there is, as the applicants acknowledge, a certain correlation between urea prices and UAN prices, those prices do not perfectly align and the price fluctuations are not the same (those of urea sometimes being higher than those of UAN and vice versa), so that the applicants’ claims as to the relevance of urea’s ability to lower the prices of UAN are not convincing.
316    Accordingly, the applicants have not demonstrated a manifest error in the assessment of the evidence on the basis of which the Commission concluded that there was no world price for urea.
317    Third, with regard to the applicants’ claim that the decrease in the Union producers’ UAN prices stems from urea prices, it should be noted that, although, in general terms, the Commission accepted that there is a correlation between the price of urea and the price of UAN in recital 159 of the contested implementing regulation, it nevertheless stated, on the basis of evidence provided by the intervener in its observations on the provisional implementing regulation of 26 April 2019 and filed by the Commission in Annexes B.3 and B.4 to the defence, that during the relevant period the correlation between urea and UAN prices had been broken.
318    Therefore, notwithstanding the fact that the applicants dispute the Commission’s assessment, the Commission cannot be criticised for making a manifest error of assessment in finding that the decrease in urea prices did not call into question the causal link between the dumping found in respect of the product concerned and the injury to the Union industry.
319    Furthermore, if the evolution of urea prices during the period concerned was not a factor contributing – at least not in a decisive way – to the reduction in the Union sales prices, none of the evidence provided by the applicants supports the conclusion that that evolution of urea prices could have had any impact when combined with another factor, such as gas costs.
320    Accordingly, the applicants have not demonstrated that the Commission infringed Article 3(7) of the basic regulation or made a manifest error of assessment by failing to examine, together, the downward evolution of urea prices that directly affects UAN prices and the upward evolution of gas costs that directly affects UAN costs.
321    Fourth, in so far as the applicants allege an infringement of the right to sound administration, on the ground that the Commission failed to examine carefully and impartially the evidence which they had presented, the applicants have not specified the evidence, presented during the administrative procedure, to which they intended to refer, so that this complaint must be rejected as inadmissible, in accordance with the case-law referred to in paragraph 139 above.
322    Moreover, and in any event, it should be noted that the Commission first of all stated, in recital 181 of the contested implementing regulation, the following:
‘… EuroChem claimed that market dynamics had caused the injury suffered by the Union industry rather than imports from the countries concerned. The market dynamics referred to were a fall in urea prices and the development of gas costs …’
323    The Commission continued, in recital 181 of the contested implementing regulation, as follows:
‘… this claim appeared to be a rewording of its previous claims and claims made by other parties which had previously been considered and rejected. Nevertheless, to summarise the Commission’s findings, the Union industry demonstrated that in 2015 and 2016 it was capable of making a profit whether gas prices were high or low. However, it was the fact that increasing volumes of dumped imports at low prices which depressed prices in 2017 and the investigation period prevented the Union industry from raising prices to cover its costs. The claim that market dynamics rather than dumped imports caused the injury suffered was therefore rejected.’
324    It follows that the Commission took account of the evidence put forward by the applicants during the administrative procedure and gave reasons for its choice to reject that claim.
325    It follows that this part of the plea must be rejected.
The fourth part, alleging failure to consider the other known factors collectively
326    The applicants submit, in essence, that, when analysing causation, the Commission infringed Article 3(7) of the basic regulation by failing to examine the other known factors collectively and instead examining them in isolation.
327    According to the applicants, intra-EU competition, globally declining urea prices, increasing gas costs and the sampled Union industry producers’ high transport costs had such an impact that the alleged causal link between the targeted imports and the situation of the Union industry cannot be relied on.
328    The Commission, supported by the intervener, disputes the applicants’ arguments.
329    In that regard, the applicants’ claim that the Commission’s findings are not supported by the evidence available to it was not made clear in the application, so that, in accordance with the case-law referred to in paragraph 139 above, it must be rejected as inadmissible.
330    In any event, it should be noted that, in recital 183 of the contested implementing regulation, the Commission stated that it had analysed the factors referred to by the applicants not only individually, but also collectively. Moreover, the applicants base their criticism largely – if not wholly – on a failure to take into consideration factors which they have not shown to be capable, when taken individually, of contributing to the injury found, as is apparent from the rejection of the first to third parts of the present plea. They merely allege that those factors have cumulative effects without adducing evidence of those effects and, consequently, without establishing that the Commission’s assessment was clearly incorrect.
331    It follows that this part of the plea must be rejected.
The fifth part, concerning the injury elimination level
332    The applicants submit, in essence, that, when analysing causation, the Commission infringed Article 9(4) of the basic regulation and made a manifest error of assessment by failing to distinguish the injurious effects of other factors from those of the dumped imports and failing to reduce the injury margin in the light of those other factors.
333    The applicants claim to have demonstrated that, during the administrative procedure, intra-EU competition, the remote geographical situation and the abnormally high gas prices of the Union industry were separate causes of injury. They also claim to have quantified the impact of those causes of injury on the Union industry.
334    The Commission, supported by the intervener, disputes the applicants’ arguments.
335    As the Commission argues, it must be held that, in so far as the first to fourth parts of the third plea have been rejected, the fifth part of this plea must also be rejected, since it is based on the incorrect premiss that at least one of the first four parts would be upheld and that the injury margin should have been reduced.
336    It follows that the third plea must be rejected in its entirety.
The fourth plea, alleging infringement of Article 7(2a) of the basic regulation, read in conjunction with Article 9(4) and (5) and Article 18(1), (4) and (5) of that regulation, of the right to sound administration and of the principle of equal treatment, as well as manifest errors of assessment as regards the refusal to apply the lesser duty rule to the applicants’ imports
Preliminary observations
337    Article 5(3) of the basic regulation provides that the Commission must, as far as possible, examine the accuracy and adequacy of the evidence provided in the complaint to determine whether there is sufficient evidence to justify the initiation of an investigation.
338    Under Article 9(4) of the basic regulation, where the facts as finally established show that there is dumping, and injury caused thereby, and the Union interest calls for intervention, a definitive anti-dumping duty is to be imposed by the Commission. The amount of the anti-dumping duty is not to exceed the margin of dumping established but it should be less than the margin if such lesser duty would be adequate to remove the injury to the Union industry. Article 7(2a), (2b), (2c) and (2d) of that regulation is to apply accordingly.
339    Under Article 7(2a) of the basic regulation, when examining whether a duty lower than the margin of dumping would be sufficient to remove injury, the Commission is to take into account whether there are distortions on raw materials with regard to the product concerned. The Commission’s investigation is to cover any distortion on raw materials identified in the second subparagraph of that paragraph, for the existence of which it has sufficient evidence pursuant to Article 5 of that regulation. For the purpose of that investigation, a single raw material, whether unprocessed or processed, including energy, for which a distortion is found, must account for not less than 17% of the cost of production of the product concerned. For the purpose of that calculation, an undistorted price of the raw material as established in representative international markets is to be used.
340    Article 7(2b) of the basic regulation states, in essence, that where the Commission, on the basis of all the information submitted, can clearly conclude that it is in the Union’s interest to determine the amount of the provisional duties in accordance with paragraph 2a of that article, that is to say, at a level below the dumping margin, paragraph 2 of that article is not to apply. The Commission is actively to seek information from interested parties enabling it to determine whether paragraph 2 or 2a of that article is to apply. In that regard, the Commission is to examine all pertinent information such as spare capacities in the exporting country, competition for raw materials and the effect on supply chains for Union companies. In the absence of cooperation the Commission may conclude that it is in accordance with the Union interest to apply paragraph 2a of that article.
341    In the present case, the duties applicable to the applicants were adjusted pursuant to Article 7(2a) and (2b) and Article 9(4) of the basic regulation.
342    Thus, the Commission examined whether a duty lower than the dumping margin would be sufficient to remove injury. Having found distortions on raw materials with regard to the product concerned within the meaning of Article 7(2a) of the basic regulation, the Commission concluded that it would be in the Union’s interest, in accordance with Article 7(2b) of that regulation, to set the amount of the duties at the level of the dumping margins, since a duty lower than the dumping margin would not be sufficient to remove the injury to the Union industry.
The first part, alleging that the decision to examine whether the lesser duty rule should apply to imports from Russia was unlawful
343    The applicants submit that the complaint that led to the initiation of the investigation did not provide evidence, let alone sufficient evidence within the meaning of Article 5 of the basic regulation, to justify an investigation against Russia under Article 7(2a) of that regulation.
344    First, according to the applicants, the complaint at issue does not contain any reference to a ‘distortion on raw materials’ within the meaning of Article 7(2a) of the basic regulation. Only the summary of that complaint referred to ‘dual pricing’, which supports only an allegation that there was a ‘particular market situation’ within the meaning of Article 2(3) of that regulation. The complaint therefore did not provide evidence of ‘dual pricing’ or any sort of ‘distortion on raw material’ justifying the initiation of an investigation against Russia under Article 7(2a) of that regulation.
345    Second, the applicants submit that the complaint at issue does not include any analysis of the ‘prices in the representative international markets’ for natural gas and does not indicate whether or not the price of Russian natural gas is ‘significantly lower’ as compared to such prices. That complaint therefore did not provide any evidence that distortions on raw materials had the effect of making the price of Russian natural gas lower than the prices charged in representative international markets, within the meaning of Article 7(2a) of the basic regulation.
346    Third, according to the applicants, no reference was made in the complaint at issue to the share of natural gas costs in the total cost of production of UAN.
347    Fourth, they submit that the complaint at issue does not contain any explicit reference to Article 7(2a) of the basic regulation. Article 7(2a) was mentioned only in the summary accompanying the complaint.
348    Fifth, in the reply, the applicants add that the Commission should have demonstrated in the defence, on the basis of the complaint referred to in the notice of initiation of the anti-dumping proceeding (namely the initial complaint), that the latter contained sufficient evidence to justify an investigation under the lesser duty rule. The references to the consolidated version of the complaint, amended by the domestic industry following a deficiency letter issued by the Commission, should be rejected.
349    The Commission, supported by the intervener, disputes the applicants’ arguments.
350    First, in so far as the applicants claim, in essence, that the initial complaint did not contain sufficient evidence to justify the initiation of an investigation under Article 7(2a) of the basic regulation, it should be noted that Article 5(2) of that regulation provides that the complaint is to contain such information as is reasonably available to the complainant on the points listed in subparagraphs (a) to (d) of that provision. That provision does not therefore require the complainant to adduce sufficient evidence to initiate an investigation.
351    In that regard, it should be noted that Article 5(3) of the basic regulation states, moreover, the following:
‘The Commission shall, as far as possible, examine the accuracy and adequacy of the evidence provided in the complaint, to determine whether there is sufficient evidence to justify the initiation of an investigation.’
352    It follows that the decision to initiate an investigation does not depend on whether the complaint contains sufficient evidence to justify such initiation, but on whether the evidence available to the Commission is sufficient to justify it. As the Commission has rightly pointed out, an investigation is initiated on the basis of all the evidence available, including the evidence in the complaint, irrespective of how the matter is presented in the complaint concerned.
353    In the present case, in the light of the evidence available to it, the Commission did not make a manifest error of assessment in finding that the price of natural gas represented more than 17% of the cost of production, from the time, in particular, when variable costs represented 33% of that cost, and that the initial complaint indicated that ‘the key production cost is natural gas’, or in initiating an investigation into UAN in respect of imports from Russia.
354    As to the remainder, as regards the absence of an explicit reference to Article 7(2a) of the basic regulation, it does not follow from that regulation that the complaint at issue had to include such a reference, particularly since that complaint refers, on several occasions, to a dual pricing scheme, and such a scheme is one of the types of distortion on raw materials explicitly mentioned in the second subparagraph of that provision. Similarly, the mere fact that some of the information used by the Commission comes from the ‘executive summary’ rather than another part of the complaint does not, as such, mean that the Commission could not take it into account.
355    Lastly, as regards the applicants’ argument relating to the consolidated version of the complaint, the Commission was entitled to use that version, since it is not disputed that it was lodged before the initiation of the investigation.
356    Consequently, the applicants’ argument relating to the lack of sufficient evidence in the complaint at issue to initiate an investigation under Article 7(2a) of the basic regulation must be rejected.
357    Second, in so far as the applicants allege an infringement of the right to sound administration, on the ground that the Commission did not examine carefully and impartially all the relevant aspects of the complaint, it should be noted that the applicants have not adduced, in accordance with the case-law referred to in paragraph 139 above, any evidence to demonstrate, in any way whatsoever, that the Commission infringed that right. In any event, and for the same reasons as those mentioned in paragraphs 350 to 356 above, the applicants cannot validly rely on such an infringement.
358    It follows that this part of the plea must be rejected.
The second part, alleging that the refusal to apply the lesser duty rule in respect of imports from Russia was unlawful
359    The applicants maintain that the conditions for not applying the lesser duty rule under Article 7(2a) of the basic regulation were not met in the present case.
360    First, according to the applicants, in so far as there is no evidence that natural gas prices in Russia are not based on commercial considerations, the Commission’s assessment that Russian natural gas is subject to ‘distortions’ is contrary to Russia’s WTO commitments, as accepted by the European Union, and rests on a manifest error of assessment.
361    The applicants argue that the European Union agreed, in the context of Russia’s accession to the WTO, to Russia’s natural gas price control policy, subject to the condition that those prices remained based on commercial considerations. According to the applicants, due to the lack of cooperation from the Russian Government, the Commission assumed that Gazprom’s domestic sales were not profitable and that only its export sales were profitable, so that Gazprom did not operate on the basis of ‘normal commercial considerations, based on recovery of costs and profit’. The Commission thus preferred to rely on unfounded assumptions rather than consider the evidence presented by interested parties.
362    The applicants add that Russia had the option of setting domestic prices below cost, but that there is no evidence that it did.
363    Second, the applicants submit that the concept of ‘distortions on raw materials’ should be interpreted in the light of the ‘Inventory on export restrictions on industrial raw materials’ established by the Organisation for Economic Co-operation and Development (OECD), in accordance with the third subparagraph of Article 7(2a) of the basic regulation. Russian natural gas was not identified as such by that inventory.
364    Third, the applicants submit that, to determine that the Russian natural gas prices were significantly lower as compared to prices in the representative international markets, the Commission compared Russian prices with the adjusted Waidhaus price. According to the applicants, there is no reason why the latter could be considered a ‘price in the representative international markets’. The Commission’s conclusion is therefore inconsistent with Article 7(2a) of the basic regulation and constitutes a manifest error of assessment.
365    Fourth, the applicants claim that, by using the adjusted Waidhaus price, the Commission did not determine that natural gas represented more than 17% of the cost of production of the product concerned based on an ‘undistorted price of the raw material as established in representative international markets’. In addition, according to the applicants, the only relevant calculation should seek to determine whether natural gas as such, without transport costs, accounted for more than 17% of their cost of production.
366    The Commission, supported by the intervener, disputes the applicants’ arguments.
367    First, in so far as the applicants claim that Russian natural gas has not been subject to a distortion on raw materials, Russia’s commitment, in the context of its accession to the WTO, to price control based on commercial considerations does not preclude the existence of such a distortion.
368    In so far as the applicants also submit that there is no evidence that natural gas prices in Russia are not based on commercial considerations, it should be noted, in any event, that, as regards the Brattle Report commissioned by the applicants, the Commission stated, in recital 38 of the contested implementing regulation, that the findings in that report were based on estimates of Gazprom’s ‘all-in’ costs, not on actual figures. The analysis and the calculations made in that report were therefore based on a number of assumptions and estimates. That finding has not been challenged by the applicants, so that the Commission did not make a manifest error of assessment when it chose not to rely on the findings in that report.
369    With regard to suppliers other than Gazprom, the Commission observed, in recital 38 of the contested implementing regulation, that that assumption effectively ignores the fact that the companies might have a completely different level and structure of costs. That finding has not been disputed by the applicants.
370    In so far as the applicants also claim that the Commission simply assumed that natural gas prices in Russia were not based on commercial considerations, it must be observed that the Commission bases its assessment, in particular, on Resolution of the Government of the Russian Federation No 1021 of 29 December 2000 on State regulation of gas prices, tariffs for transportation services and fees for technological connection of gas-using equipment to gas distribution networks in the Russian Federation, which was in force during the investigation period. It is apparent from Article 11.1 of that resolution that ‘wholesale gas prices for gas supply systems that supply gas to foreign markets are regulated on the basis of a gas price formula’, without that resolution mentioning, unlike the previous version of the legislation on gas prices, a criterion requiring equal profitability between sales of gas in Russia and sales to foreign markets.
371    Furthermore, when establishing the principles for setting prices, Article 14 of the resolution at issue provides that ‘when considering economically justified costs and profits, regulators shall take into account [inter alia] projected profits from gas deliveries for exports’, but does not include any reference to profits deriving from sales of gas in Russia.
372    Second, the applicants assert that Russian natural gas was not identified by the OECD ‘Inventory on export restrictions on industrial raw materials’. According to the applicants, it follows from recital 9 of Regulation (EU) 2018/825 of the European Parliament and of the Council of 30 May 2018 amending Regulation 2016/1036 and Regulation (EU) 2016/1037 on protection against subsidised imports from countries not members of the European Union (OJ 2018 L 143, p. 1), according to which ‘the Commission should verify the existence of distortions on raw materials on the basis of the complaint received and [that inventory]’, that the Commission is limited by the data contained in that inventory.
373    In that regard, the fifth subparagraph of Article 7(2a) of the basic regulation refers to ‘raw material, whether unprocessed or processed, including energy’. It follows that the scope of the inventory does not determine the Commission’s findings as to the existence of a distortion on raw materials concerning Russian natural gas.
374    Furthermore, the second subparagraph of Article 7(2a) of the basic regulation contains an exhaustive list of measures which are considered to be distortions on raw materials, including dual pricing schemes, export taxes and licensing requirements. It is not disputed by the applicants that, in recitals 212 to 215 of the provisional implementing regulation, the Commission listed evidence of the existence of all three measures in respect of natural gas in Russia.
375    Third, in so far as the applicants complain that the Commission used the adjusted Waidhaus price, which cannot be regarded as a price in ‘representative international markets’ within the meaning of Article 7(2a) of the basic regulation, that provision does not specify what is meant by ‘prices in the representative international markets’. It follows that the determination of those prices involves the assessment of complex economic situations, in respect of which the Commission has broad discretion.
376    Furthermore, the Court has held that the choice of the adjusted Waidhaus price as the reference price did not constitute a manifest error of assessment, in so far as the choice of that price seemed reasonable because Waidhaus was the main hub for Russian gas sales to the European Union, and that, having regard to the volume of gas concerned and the number of contracts negotiated, there was no indication that the price of Russian gas at Waidhaus was not the result of market forces free of distortion (see, by analogy, judgments of 7 February 2013, EuroChem MCC v Council, T‑84/07, EU:T:2013:64, paragraphs 96, 97 and 99, and of 7 February 2013, Acron v Council, T‑118/10, not published, EU:T:2013:67, paragraphs 84, 85 and 87).
377    Lastly, the applicants have not provided any evidence to show that, in the present case, the choice of the Waidhaus price is clearly unreasonable.
378    Fourth, the applicants dispute the finding that natural gas represents more than 17% of the cost of production of UAN.
379    In addition to the considerations set out in paragraph 377 above, it must be observed that, as shown by the investigation, the adjusted costs of natural gas accounted for 86% and 68% of the costs of production of NEV and NAK respectively, so that, even assuming transport costs corresponding to a considerable share of those two proportions (86% and 68%), which has not been claimed, the costs related to natural gas accounted for at least 17% of the cost of production of UAN for the applicants.
380    Furthermore, as regards the applicants’ arguments relating to the price level in Trinidad and Tobago, the Commission explained that prices in Trinidad and Tobago were affected by subsidies, which is not disputed by the applicants. Lastly, as regards the alleged actual costs of gas, which, according to the applicants, amount to 16% of NEV’s cost of production, it is sufficient to note that that proportion, which is only slightly lower than the 17% provided for in the basic regulation, reflects costs based on prices for Trinidad and Tobago affected by subsidies and excluding transport costs, so that it is artificially low.
381    Fifth, in so far as the applicants claim that the Commission infringed the right to sound administration, on the ground that it failed to examine carefully and impartially all relevant aspects of the case with regard to the application of the lesser duty rule to Russia, the applicants have not adduced any evidence to demonstrate, in any way whatsoever, that the Commission infringed that right. In any event, and for the same reasons as those mentioned in paragraphs 350 to 356 above, the applicants cannot validly rely on an infringement of their right to sound administration.
382    It follows from all the foregoing that this part of the plea must be rejected.
The third part, alleging that the refusal to examine the specific situation of EuroChem in connection with the non-application of the lesser duty rule was unlawful
383    The applicants maintain, in essence, that the lesser duty rule should be modulated on a company-specific basis.
384    Thus, they argue that, in order to be consistent with Article 9(5) of the basic regulation, the application of the lesser duty rule under Article 7(2a) and Article 9(4) of that regulation should be determined for each exporting producer separately, rather than on a countrywide basis.
385    Accordingly, the applicants submit that the Commission infringed Article 9(5) of the basic regulation, made a manifest error of assessment and infringed the principles of equal treatment and non-discrimination by refusing to determine whether the non-application of the lesser duty rule was justified for them.
386    The Commission, supported by the intervener, disputes the applicants’ arguments.
387    As a preliminary point, it should be borne in mind that Article 9(5) of the basic regulation provides that ‘an anti-dumping duty shall be imposed in the appropriate amounts in each case, on a non-discriminatory basis, on imports of a product from all sources found to be dumped and causing injury, except for imports from those sources from which undertakings under the terms of this Regulation have been accepted’.
388    It is clear that Article 9(5) of the basic regulation does not deal in any way with the question whether the analysis of the factors under Article 7(2a) of that regulation must be concluded on a specific or countrywide basis, so that the interpretation according to which Article 9(5) requires the application of the lesser duty rule under Article 7(2a) to be determined separately for each exporting producer, to avoid infringing Article 7(2a) and the principle of non-discrimination, is incorrect.
389    Moreover, and in any event, as regards the applicants’ argument relating to their individual situation and according to which none of the distortions found by the Commission affects gas suppliers other than Gazprom, it is sufficient to note that it has not been shown that the comments in recitals 24, 212, 215 and 216 of the provisional implementing regulation and in recitals 215 and 223 of the contested implementing regulation were clearly incorrect.
390    More specifically, the applicants have not shown how the Commission’s findings relating to the fact, as is apparent in particular from recitals 55, 213 and 216 of the provisional implementing regulation and from recitals 215 and 223 of the contested implementing regulation, that Gazprom is the only licensed exporter of natural gas in gaseous form, that there is an export tax and that gas suppliers other than Gazprom, namely independent gas suppliers, apply prices similar to Gazprom, are vitiated by errors. Therefore, even assuming that they obtained gas from such independent suppliers, they also benefited from the distortion of gas prices.
391    Lastly, with further regard to the applicants’ arguments that the ‘influence’ of the regulated price on the prices of independent suppliers is not one of the distortive measures identified in Article 7(2a) of the basic regulation and that those suppliers may export gas in liquid form, it is sufficient to point out, first, that that influence of regulated prices results in particular from export taxes, which constitute one of the measures expressly listed in that provision, and, second, that, as the Commission submits, liquid natural gas and natural gas in its gaseous form are not entirely interchangeable and that liquid natural gas constitutes only a small share of Russian exports.
392    It follows that this part of the plea must be rejected.
The fourth part, alleging that the refusal to apply the lesser duty rule to Russia, whereas imports from Trinidad and Tobago and the United States in a comparable situation benefited from that rule, was unlawful
393    The applicants submit that the investigation carried out pursuant to Article 7(2a) of the basic regulation was discriminatory.
394    The applicants state that they provided prima facie evidence of the existence of distortions on raw materials, within the meaning of Article 7(2a) of the basic regulation, with regard to the natural gas markets of Trinidad and Tobago and the United States.
395    Consequently, by failing to examine the existence of the distortions at issue, the Commission infringed Article 9(5) of the basic regulation, which requires anti-dumping duties to be applied on a non-discriminatory basis, made a manifest error of assessment and infringed the principles of equality and non-discrimination.
396    The Commission, supported by the intervener, disputes the applicants’ arguments.
397    In that regard, the applicants refer to the circumstances set out by the Commission in concluding that there was no discriminatory treatment, in particular in recital 217 of the contested implementing regulation. They do not, however, call those circumstances into question.
398    Even assuming that the applicants have an interest in raising such an argument in view of the possible lack of consequences for the decision as far as they are concerned, it should be noted that, after the applicants put forward arguments relating to Trinidad and Tobago and the United States following the initiation of the investigation, first, the Commission explained that the producer of UAN in those countries benefited from the subsidisation of its purchases of natural gas. In addition, the Commission rightly noted that the subsidisation of raw materials was not one of the types of measures included in the exhaustive list of measures considered to be distortions on raw materials, established by the second subparagraph of Article 7(2a) of the basic regulation. The applicants have not disputed the existence or the classification of that subsidisation of natural gas in those countries.
399    Second, as regards the allegations concerning the United States, the evidence put forward by the applicants does not support the conclusion that the Commission’s finding that the export licensing system did not constitute a ‘licensing scheme’ within the meaning of the second subparagraph of Article 7(2a) of the basic regulation, in so far as it was automatic and imposed a negligible fee, was vitiated by an error of assessment.
400    It follows that the Commission did not err in finding that the imports into the European Union from Trinidad and Tobago and the United States were not in a situation comparable to imports from Russia and, accordingly, the Commission did not infringe Article 9(5) of the basic regulation. Consequently, this part of the plea must be rejected.
The fifth part, alleging that the facts available were unlawfully applied to the applicants, which cooperated, on account of the Russian Government’s lack of cooperation
401    The applicants submit that the lack of cooperation on the part of the Russian Government should not have resulted in the facts available regarding distortions on natural gas in Russia being applied to them.
402    First, the applicants submit, in essence, that the conditions for applying Article 18(1) of the basic regulation were not met in so far as they were concerned, since they had cooperated.
403    Second, the applicants claim that the Commission infringed Article 18(4) of the basic regulation when the facts available were applied to them without an opportunity for them to comment.
404    In the first place, according to the applicants, Article 18(4) of the basic regulation is applicable to them in so far as they disputed that Russian gas was subject to a ‘distortion on raw materials’ within the meaning of Article 7(2a) of that regulation.
405    In the second place, the applicants observe that, before the facts available were applied to them, the Commission should have informed them of the evidence or information which it sought to obtain and why the evidence or information already provided could not be accepted.
406    In the third place, they submit that Article 18(4) of the basic regulation does not allow the Commission to grant an opportunity to provide further explanations after the facts available were applied.
407    Third, the applicants submit that, by failing to consider the information submitted by them and focusing only on the lack of cooperation from the Russian Government, the Commission infringed the right to sound administration, as well as Article 18(5) of the basic regulation, since it did not examine carefully and impartially the information from other independent sources, which they had provided.
408    Fourth, the applicants note that, although the Commission relied on certain data provided by them in connection with Article 7(2a) of the basic regulation, that does not mean that it did not disregard most of the information submitted by them and relied on other facts available instead.
409    Consequently, the applicants submit that the Commission infringed Article 18(1), (4) and (5) of the basic regulation and their right to sound administration by applying to them, without notice, the facts available, despite their uninterrupted cooperation, on the ground that another party to the investigation did not cooperate.
410    The Commission, supported by the intervener, disputes the applicants’ arguments.
411    The first sentence of Article 18(1) of the basic regulation provides:
‘In cases in which any interested party refuses access to, or otherwise does not provide, necessary information within the time limits provided for in this Regulation, or significantly impedes the investigation, provisional or final findings, affirmative or negative, may be made on the basis of the facts available.’
412    In addition, Article 18(4) and (5) of the basic regulation reads as follows:
‘4.      If evidence or information is not accepted, the supplying party shall be informed forthwith of the reasons therefor and shall be granted an opportunity to provide further explanations within the time limit specified. If the explanations are considered unsatisfactory, the reasons for rejection of such evidence or information shall be disclosed and given in published findings.
5.      If determinations, including those regarding normal value, are based on the provisions of paragraph 1, including the information supplied in the complaint, it shall, where practicable and with due regard to the time limits of the investigation, be checked by reference to information from other independent sources which may be available, such as published price lists, official import statistics and customs returns, or information obtained from other interested parties during the investigation.
Such information may include relevant data pertaining to the world market or other representative markets, where appropriate.’
413    In that regard, contrary to the applicants’ submission, the Commission did not apply Article 18(1) of the basic regulation to them on account of any conduct allegedly attributed to them.
414    The fact remains that, in order to determine whether there was a distortion on raw materials in Russia, the Commission sent a questionnaire to the Government of the Russian Federation, as an interested party, and that the information which could be obtained from that party was particularly relevant in view, as is apparent in particular from recital 215 of the contested implementing regulation, of the nature of the distortions at issue (in particular, export restrictions and export tax), of their impact on suppliers of natural gas other than Gazprom and, therefore, of the fact that those distortions were likely to affect all exporters in that country, including the applicants. However, that government cooperated only partially, as is apparent in particular from the wording of recital 24 of the provisional implementing regulation, which is not disputed by the applicants.
415    Consequently, the Commission could, without error, make preliminary or final findings on the basis of the facts available and such findings could, where appropriate, be applied to the applicants.
416    In addition, the Commission used the information provided by the applicants to assess whether there was a distortion on raw materials as far as they are concerned. Furthermore, that information constituted facts available within the meaning of the first subparagraph of Article 18(1) of the basic regulation.
417    In those circumstances, the claim that the Commission infringed Article 18(1) and (4) of the basic regulation cannot succeed, particularly since the applicants had the opportunity to comment on the provisional findings made by that institution on the basis of the information available to it, including the information produced by the applicants, and thus to challenge the fact that they were concerned by the distortion on the price of natural gas.
418    Similarly, in those circumstances, the applicants cannot validly argue, in essence, that it cannot be ruled out that the Commission ignored most of the information provided by them, that it is irrelevant that the Commission examined that information as ‘facts available’ and that they did not have any opportunity to provide the data which should have been obtained from the Russian Government. With further regard to the applicants’ claim that the Commission drew adverse inferences from that government’s lack of cooperation, that claim is not such as to call into question the foregoing considerations concerning the absence of any infringement of Article 18(1) and (4) of the basic regulation, since it relates to whether the Commission’s findings are well founded.
419    Lastly, it is sufficient to note that the applicants have not substantiated the alleged infringement of Article 18(5) of the basic regulation.
420    Accordingly, this part of the plea must be rejected, as must the fourth plea in its entirety.
421    It follows from all the foregoing considerations that the action must be dismissed in its entirety and it is unnecessary to order, by way of a measure of organisation of procedure, the Commission to produce evidence relating to the additional undercutting calculations and to gas prices for the sampled Union producers, as requested by the applicants, since the Court has been able to rule on the action on the basis of the forms of order sought, the pleas in law and the arguments put forward during the proceedings and in the light of the annexes lodged by the parties (see, to that effect, judgment of 23 November 2006, Ter Lembeek v Commission, T‑217/02, EU:T:2006:361, paragraphs 249 and 250 and the case-law cited).
Costs
422    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 forms of order sought by the Commission and the intervener.
On those grounds,
THE GENERAL COURT (Eighth Chamber, Extended Composition)
hereby:
1.      Dismisses the action;
2.      Orders AO Nevinnomysskiy Azot and AO Novomoskovskaya Aktsionernaya Kompania NAK “Azot” to bear their own costs and to pay the costs incurred by the European Commission and by Fertilizers Europe.
Svenningsen
Barents
Mac Eochaidh
Pynnä
Laitenberger
Delivered in open court in Luxembourg on 14 September 2022.
E. Coulon
A. Marcoulli
Registrar
President
*      Language of the case: English.
1      Confidential information omitted.