OPINION OF ADVOCATE GENERAL
BIONDI
delivered on 5 February 2026 (1)
Case C‑319/24 P
European Commission
v
Sinopec Chongqing SVW Chemical Co. Ltd,
Sinopec Great Wall Energy & Chemical (Ningxia) Co. Ltd,
Central-China Company, Sinopec Chemical Commercial Holding Co. Ltd
( Appeal – Dumping – Imports of certain polyvinyl alcohols originating from China – Definitive anti-dumping duty – Implementing Regulation (EU) 2020/1336 – Non-Cooperation – Article 18(1) and (6) of Regulation (EU) 2016/1036 – Fair comparison at the same level of trade – Construction of the normal value in case of significant distortions in the exporting country – Article 2(6a) and (10) of Regulation 2016/1036 – Adjustments – Single economic entity – Article 2(10)(i) of Regulation 2016/1036 – Non-refundable VAT – Article 2(10)(k) of Regulation 2016/1036 )
Table of contents
I.
Introduction
II.
The appeal
A.
The first ground of appeal, relating to the infringement of Article 18 of the basic Regulation
1.
Background to the disputed issue
2.
Brief summary of the arguments of the parties
3.
Analysis
(a)
Admissibility of the first ground of appeal and jurisdiction of the Court
(b)
Substance
(1)
Article 18 of the basic Regulation
(2)
Application to the present case
B.
The second ground of appeal, relating to the infringement of Article 2(10) of the basic Regulation and of the principle of good administration
1.
Background to the disputed issue
2.
Brief summary of the arguments of the parties
3.
Analysis
(a)
The construction of the normal value under Article 2(6a) of the basic Regulation
(b)
The obligation to make a fair comparison under Article 2(10) of the basic Regulation
(1)
The fair comparison at the same level of trade
(2)
The fair comparison when the normal value is constructed under Article 2(6a) of the basic Regulation
(3)
The burden and standard of proof relating to adjustments
(c)
The first limb of the second ground of appeal
(d)
The second limb of the second ground of appeal
(1)
The alleged distortion of facts
(2)
The required standard of proof under Article 2(10) of the basic Regulation
(3)
The alleged breach of the principle of good administration
C.
The third ground of appeal, relating to the interpretation of Article 2(10)(i) of the basic Regulation
1.
Background to the disputed issue
2.
Brief summary of the arguments of the parties
3.
Analysis
(a)
The adjustment under Article 2(10)(i) of the basic Regulation
(b)
The first limb of the third ground of appeal
(c)
The second limb of the third ground of appeal
(1)
Admissibility
(2)
Substance
III.
The cross-appeal
A.
Admissibility and effectiveness of the cross-appeal
B.
The first ground of appeal
C.
The second ground of appeal
D.
The third ground of appeal
E.
The fourth ground of appeal
IV.
The action before the General Court
V.
The costs
VI.
Conclusion
I.      Introduction
1.        The present case raises significant issues concerning the European Commission’s anti-dumping investigations.
2.        This is the first case in which the Court of Justice is called upon to interpret the application of the new methodology laid down in Article 2(6a) of the basic Regulation, (2) which is used to construct the normal value in cases of exports from countries whose domestic market is subject to significant distortions. The Court’s judgment will have far-reaching implications for the Commission’s future handling of investigations applying that methodology. The present case also gives the Court the opportunity to further clarify the scope of the Commission’s discretion when using facts available, in accordance with Article 18 of the basic Regulation, in cases of lack of cooperation of interested parties, as well as the scope of adjustments under Article 2(10)(i) and (k) of the basic Regulation.
3.        The case concerns an appeal lodged by the Commission and a cross-appeal lodged by three companies of the Sinopec
Group, (3) one of the largest Chinese corporate groups, which were applicants at first instance. The appeal and the cross-appeal concern
a
judgment of the General Court of the European Union (4) (‘the judgment under appeal’) by which that Court annulled a Commission implementing regulation imposing definitive anti-dumping duties on imports of certain polyvinyl alcohols (‘PVA’) originating in the People’s Republic of China (5) (‘the regulation at issue’).
4.        In essence, by the regulation at issue, the Commission imposed, inter alia, a definitive anti-dumping duty of 17.3% on imports of certain PVA products of Sinopec.
5.        Having found that there were ‘significant distortions’ in China, (6) the Commission constructed the normal value in accordance with the methodology laid down in Article 2(6a)(a) of the basic Regulation, (7) including what it considered to be an undistorted and reasonable amount for selling, general and administrative costs (‘SG&A costs’) and for profits. (8)
6.        In that context, first, as regards Sinopec Ningxia, the Commission identified some serious deficiencies in the data provided in respect of its production costs. Accordingly, when constructing the normal value for
that company the Commission used the ‘facts available’
in accordance with Article 18(1) of the basic Regulation. (9) The Commission
decided, for each type of product concerned, to use the highest of the constructed normal values of the other cooperating exporting producers. (10)
7.        Second, the Commission made downward adjustments to the export price, deducting insurance costs, transport, handling and loading expenses, credit costs and bank charges (‘the costs at issue’). (11)Third, the Commission
made a downward adjustment to the export price under Article 2(10)(i) of the basic Regulation. (12)Fourth, the Commission
made an upward adjustment to
the normal value under Article 2(10)(b) of the basic Regulation. (13)
8.        In the judgment under appeal, the General Court, first,
found that the Commission had infringed Article 18 of the basic Regulation
in so far as
it had
calculated Sinopec Ningxia’s normal value by using, for each product type, the highest of the normal values of the other exporting producers. (14)Second, the General Court found that the Commission had
infringed
its obligation under Article 2(10) of the basic Regulation
to make a fair comparison at the same level of trade between the export price and the normal value,
in so far as the Commission had
deducted
‘the costs at issue’ from the export price. The General Court also found that the Commission had infringed the principle of good administration by requiring Sinopec to adduce unreasonable proof. (15)Third, the General Court found that the Commission had
infringed Article 2(10)(i) of the basic Regulation
in so far as
it had
found that the functions of Sinopec Central-China were similar to those of an agent working on a commission basis. (16)
9.        The General Court therefore annulled the regulation at issue with regard to Sinopec in so far as
the Commission had
committed the abovementioned
infringements. The remainder of the action was
dismissed.
10.      The Commission and Sinopec lodged, respectively, an appeal and a cross-appeal before the Court.
II.    The appeal
11.      By its appeal, the Commission, supported by Kuraray Europe GmbH (‘Kuraray’), intervener at first instance, asks the Court to set aside the judgment under appeal and order Sinopec to pay the costs of the first instance and appeal proceedings.
12.      Sinopec,
supported by Wegochem Europe BV (‘Wegochem’), intervener at
first instance, asks the Court, in essence, to dismiss the appeal and, in the alternative, to refer the case back to the General Court for reconsideration and order the Commission to bear the costs.
13.      In support of its appeal, the Commission relies on three grounds of appeal, by which it submits that the General Court erred in finding each of the
infringements mentioned in point 8 of the present Opinion.
A.      The first ground of appeal, relating to the infringement of Article 18 of the basic Regulation
14.      The first ground of appeal of the Commission concerns the General Court’s findings in paragraphs 211 to 221 of the judgment under appeal. In those paragraphs the General Court upheld
the plea by which Sinopec argued that the Commission had
infringed Article 18 of the basic Regulation.
15.      The relevant provisions of Article 18 of the basic Regulation
are worded as follows:
‘1.      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.
…
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.
…
6.      If an interested party does not cooperate, or cooperates only partially, so that relevant information is thereby withheld, the result of the investigation may be less favourable to the party than if it had cooperated.’
1.      Background to the disputed issue
16.      In recitals 327 to 329 of the regulation at issue,
after identifying serious deficiencies in the reporting of the cost of production relating to Sinopec Ningxia, the Commission decided to apply ‘facts available’ in accordance with Article 18 of the basic Regulation as far as the calculation of the normal value of
that company was concerned. Thus, the normal value for that company was constructed,
under Article 2(6a) of the basic Regulation,
using the information provided by the other cooperating exporting producers. In particular, for each product type reported by that company, the Commission used the highest constructed
normal value of the other cooperating exporting producers.
17.      In recital 333 of the regulation at issue the Commission rejected the claims that that approach was punitive. The Commission considered that since it ‘was unable to verify and therefore use the data supplied by Sinopec Ningxia for the construction of its normal value, there [was] no evidence suggesting that Sinopec Ningxia’s normal value per product type would be below the highest normal value per product type of the other cooperating producers that use similar raw materials’.
18.      In the judgment under appeal the General Court considered that the Commission had, in the regulation at issue, applied a presumption that Sinopec Ningxia’s normal value, per product type, was not below the highest of the normal values of the other cooperating exporting producers. The General Court found that it was not the intention of the EU legislature to establish,
under Article 18 of the basic Regulation,
such a legal presumption, exempting the EU institutions from any requirement to adduce proof.
The General Court observed that the Commission had acknowledged during the hearing before that Court that it had applied a presumption and that, in reply to
a specific question, that institution
had explained that the element of the file on which it had relied to systematically use the highest normal value of the other cooperating exporting producers was Sinopec Ningxia’s lack of cooperation. The General Court concluded that,
by applying such a presumption,
the Commission had infringed Article 18 of the basic Regulation.
2.      Brief summary of the arguments of the parties
19.      By its first ground of appeal, the Commission,
supported by Kuraray, submits that, in the judgment under appeal, the General Court erred in law
in the interpretation and application of Article 18 of the basic Regulation. The Commission submits that, contrary to what the General Court held, the Commission did not apply, in recitals 329 and 333 of the regulation at issue, any ‘presumption’ based on Sinopec Ningxia’s lack of cooperation. The Commission simply inferred from the fact that Sinopec Ningxia had not provided, on several occasions, the missing data that its normal values had to be at least at the level of the highest normal values for the same product types manufactured by the other cooperating exporting producers. In so doing, the Commission considers that it did not ‘penalise’ Sinopec Ningxia, but merely used data on the file relating to those other exporting producers. Furthermore, nowhere in its written pleadings at first instance did the Commission refer to such a presumption. The General Court therefore distorted the characterisation of its reasoning in recital 333 of the regulation at issue.
20.      As a preliminary point, Wegochem submits that the first ground of appeal of the Commission is inadmissible since it seeks to call into question factual findings made by the General Court in the judgment under appeal. According to Wegochem, the General Court found that the Commission had applied a presumption and that it had penalised Sinopec Ningxia. The Commission is
therefore asking the Court to reassess the underlying evidence and facts.
21.      In essence,
Sinopec, supported by Wegochem, submits, first, that the Commission did not make an inference but applied a presumption. Other than the reasoning in recital 333, the Commission did
not present any evidence or reasoning to support the systematic selection of the highest normal value found per product type. The General Court rightly stated that the only element on which the Commission had relied was the lack of cooperation. It was therefore right in concluding that the Commission had applied a presumption. Second, even if the Commission had made an inference, this would not allow it to select a particular fact in order to punish non-cooperation. It is apparent from World Trade Organisation
(WTO)
case-law that if certain information has not been provided, an authority cannot simply assume that the missing information is necessarily incriminating and cannot read the missing information in the most negative light. Third, the Commission’s concerns that the General Court’s approach risks incentivising exporting producers to refuse selectively to cooperate is overblown. Article 18(6) of the basic Regulation does not require that the result must be less favourable. The Commission could have used other values such as the weighted average of the normal values of the other exporters which could also have been ‘less favourable’. Instead, the Commission made sure that the selected replacement facts were the most adverse
possible in regard to Sinopec.
3.      Analysis
(a)    Admissibility of the first ground of appeal and jurisdiction of the Court
22.      As regards the plea of inadmissibility
raised by Wegochem,
it is apparent from settled case-law that an intervener has no standing to raise a plea alleging that an action is inadmissible where such a plea is not set out in the form of an order sought by the defendant. (17)
23.      In the present case, Sinopec did not raise any plea of admissibility relating to
the first ground of appeal. It follows that Wegochem was not entitled to raise the plea of inadmissibility and that the Court is therefore not bound to consider such a plea.
24.      However, the question of the Court’s jurisdiction to hear and determine a case is a matter of public policy, that may be considered by the Court at any stage in the proceedings, even of its own motion. (18)
25.      Accordingly, since, as is apparent from settled case-law, the Court has no jurisdiction to establish the facts on appeal, (19) save where the facts are distorted, (20) Wegochem’s plea of admissibility raises an issue concerning the Court’s jurisdiction that the Court should examine of its own motion.
26.      In the present case, however, the first ground of appeal does not seek to call into question considerations of fact. On the contrary, it raises a question of law concerning the interpretation of Article 18 of the basic Regulation and, in particular, the level of discretion available to the Commission when choosing to take into account the ‘facts available’
in cases of non-cooperation by an interested party. Furthermore, the Commission contests the interpretation of recital 333 of the regulation at issue made in the judgment under appeal,
submitting that the General Court distorted the meaning of that recital. The Court therefore has jurisdiction to address the first ground of the Commission’s appeal.
(b)    Substance
(1)    Article 18 of the basic Regulation
27.      To address the Commission’s argument that,
in the judgment under appeal, the General Court committed an error of law relating to Article 18 of the basic Regulation,
it must be recalled at the outset that the basic Regulation
does not confer on the Commission any power to compel the interested parties to participate in the investigation or to provide information. The Commission is therefore reliant on the voluntary cooperation of those parties in supplying the necessary information. (21)
28.      Accordingly, the EU legislature provided in
Article 18(1) of the
basic Regulation
that, in cases in which an interested party does not provide necessary information, or significantly impedes the investigation, findings may be made on the basis of the ‘facts available’. (22) Furthermore,
under Article 18(6) of said regulation, if an interested party does not cooperate, the result of the investigation may be less favourable to that party than if it had cooperated.
29.      As is apparent from recital 27 of the basic Regulation, Article 18 thereof reflects the EU legislature’s intention of streamlining the evidentiary task incumbent on the Commission when faced with material obstacles attributable to the lack of cooperation by the interested parties. (23) Accordingly, the Court has found that
the objective of Article 18 of the
basic Regulation
is to enable the Commission to continue with the investigation even though the interested parties refuse to cooperate or do not cooperate adequately. (24)
30.      Against that background,
interested parties are obliged to cooperate to the best of their ability and must provide all the information at their disposal which the institutions consider necessary for the purpose of making their findings. (25) Moreover, the risk that, where the interested parties in the investigation do not cooperate, the institutions may take into account ‘facts available’
which could be less favourable in accordance with Article 18(1) and (6) of the basic Regulation is inherent in the anti-dumping procedure and is designed to encourage the honest and diligent cooperation of those undertakings. (26)
31.      For the sake of the effectiveness and efficiency of the anti-dumping procedure, it must be ensured that interested parties cooperate genuinely and fully with the investigation, acting to the best of their ability and without impeding the investigation. The negative consequences to which an interested party may be exposed in the case of defective or partial cooperation – where an interested party may find itself in a less favourable situation than that which it would have been in if it had cooperated fully with the investigation – must function as an incentive to cooperate fully and unconditionally with the investigation. (27) Any other approach would risk undermining the efficiency of EU trade defence measures each time the EU institutions are faced with non-cooperation in an investigation. (28)
32.      It should also be emphasised
that in the field of common commercial policy and, in particular, in the realm of measures to protect trade, the EU institutions enjoy a broad discretion by reason of the complexity of the economic, political and legal situations which they have to examine. (29) In that context, when the Commission bases its conclusions on the ‘facts available’ in situations where the facts submitted are deficient, that institution enjoys a broad discretion in choosing the most appropriate facts available on the file and is not required to explain why the facts available that were used were the most appropriate, since no such obligation is apparent either from Article 18 of the
basic Regulation
or from the case-law. (30)
33.      Furthermore, according to settled case-law, 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. (31)
34.      Nevertheless, it is precisely in consideration of the Commission’s discretion that a rigorous judicial review, albeit within the limits expressed above, is crucial. Specifically, the complex nature of the economic and legal assessments made by the Commission should not prevent the courts from examining whether the evidence relied on is factually accurate, reliable and consistent, whether that evidence contains all relevant information which should be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn therefrom. (32)
(2)    Application to the present case
35.      In the present case, it is undisputed that Sinopec Ningxia failed to provide reliable data relating to its cost of production and that, therefore, due to its lack of cooperation, the Commission could rely on ‘facts available’ in accordance with Article 18(1) of the basic Regulation to construct that company’s normal value.
36.      The General Court, however,
considered,
in paragraph 218 of the judgment under appeal,
that,
in recitals 329 and 333 of the regulation at issue, following its finding of non-cooperation, the Commission had
applied a presumption that Sinopec Ningxia’s normal value, per product type, was not below the highest, per product type, of the normal values of the other exporting producers.
37.      A presumption can be generally defined as a legal mechanism whereby an uncertain fact (or set of facts)
is (or are) inferred from a certain fact  or set of facts. (33)
38.      Given that, under Article 18 of the basic Regulation, it is possible to make findings on the basis of the ‘facts available’
on the file and to treat a party which does not cooperate or does not cooperate fully less favourably than if it had cooperated, EU institutions are authorised to infer from the direct proof of the facts which they established from the information in their possession, indirect proof of the facts which remain unknown on account of the non-cooperation of the parties. In other words, Article 18 of the basic Regulation
allows the EU institutions to act on the basis of presumptions provided that there is a logical and reasonable link between the facts established and those that remain unknown. Prohibiting those institutions from relying on such presumptions would have the effect of creating unreasonable obstacles to the adoption of EU trade defence measures each time the EU institutions are faced with non-cooperation in an investigation. (34)
39.      However, nowhere in the regulation at issue is it written that the Commission applied a presumption. Moreover, the Commission challenges the interpretation of the regulation at issue made by the General Court, arguing that
said
Court mischaracterises the meaning of recital 333 by concluding that it applied a presumption. The Commission also contests having acknowledged that it used a presumption.
40.      An attentive reading of recital 333 of the regulation at issue, as recalled in point 17 of the present Opinion, shows that, in that recital, the Commission did not establish or infer a fact or the likelihood of a fact from another fact. In that recital, the Commission merely rejected as unproven the argument submitted by Sinopec relating to the punitive character of its choice, among the ‘facts available’, of the highest normal value, per product type, of the normal values of the other cooperating exporting producers. The Commission simply stated that it was not established that that approach was punitive, since there was no element in the file showing that Sinopec Ningxia’s normal value per product type would be below the highest normal value per product type of the other cooperating exporting producers
that use similar raw materials.
41.      Consequently, first, since the Commission did not infer an (uncertain) fact from another (certain) fact, it cannot be considered in my view that that institution applied a presumption. The Commission did not determine or infer Sinopec Ningxia’s normal value. It simply took note of the absence of any evidence substantiating the alleged punitive character of its systematic choice of the highest normal value of the other cooperating exporting producers.
42.      Second, since it is established that Sinopec Ningxia did not provide reliable data allowing the determination of its normal values, the statement contained in recital 333 of the regulation at issue relating to the absence of evidence allowing the Commission to assess whether those values would be below the values chosen is correct and not vitiated by any manifest error of assessment.
43.      In that regard, the mere existence of a possibility of
relying on alternative data
or facts available on the file is not sufficient to establish
a manifest error of assessment by the Commission. As recalled above, the objective of Article 18 of the basic Regulation is to enable the Commission to conclude its investigation notwithstanding the temporary constraints imposed on it, including cases of non-cooperation, in which the Commission enjoys a broad discretion in examining and assessing the ‘facts available’.
44.      In the exercise of its discretion, as is apparent from
point 32 of the present Opinion, the Commission needs to choose ‘facts available’
that, while on file and sufficiently corroborating, ensure the efficiency and the effectiveness of EU trade defence measures also in cases of non-cooperation. The Commission cannot choose ‘facts available’ that risk rewarding non-cooperation in the investigation. Thus, in the absence of any reliable data on file concerning its costs, by reason of its own lack of cooperation, Sinopec cannot claim that alternative values such as the average normal value of the other cooperating exporting producers should be used, as this would possibly reward non-cooperation. As the Commission has rightly pointed out, the use of such a value may have the perversive effect of incentivising exporting producers to selectively refuse to cooperate in all the areas where they are aware that they incurred higher than average costs compared to other exporters. In any case, Sinopec did not provide any explanation as to why the Commission should have used that value rather than the highest normal value per product type of the other cooperating exporting producers.
45.      Furthermore, it is not demonstrated that, by choosing such a normal value,
the Commission selected the most unfavourable ‘facts available’ and thereby penalised Sinopec Ningxia. In fact, the data of the other cooperating exporting operators are not the only facts available that the Commission could have taken into account following Sinopec Ningxia’s non-cooperation. As is apparent from Article 18(5) of the basic Regulation, ‘facts available’ may also include information provided by the European producers in their complaint, data available from independent sources such as published price lists, official statistics and customs records. In the light of those various sources which might have also been taken into account, it is not demonstrated that, by relying on the highest normal value per product type of the other cooperating exporting producers, the Commission ensured that the replacement data would be the most unfavourable for Sinopec Ningxia. The alleged punitive nature of that choice is therefore not substantiated.
46.      In any event, as mentioned above, the risk that,
in cases of non-cooperation, the ‘facts available’
used may lead to a less favourable
outcome under Article 18(6) of the basic Regulation is inherent in the anti-dumping
procedure and Sinopec Ningxia
ought to have been
well aware of that risk.
47.      In conclusion,
it follows from all the above considerations that, in paragraphs 211 to 221 of the judgment under appeal, the General Court mischaracterised the meaning of recital 333 of the regulation at issue and committed an error of law infringing Article 18 of the basic Regulation. Accordingly, the first ground of the Commission’s appeal should, in my view, be upheld.
B.      The second ground of appeal, relating to the infringement of Article 2(10) of the basic Regulation and of the principle of good administration
48.      The second ground of the Commission’s appeal raises significant questions concerning the interaction between the Commission’s obligation to make a fair comparison under Article 2(10) of the basic Regulation and the construction of the normal value under Article 2(6a) of the same regulation
in cases of exports from countries whose domestic market has been shown to be subject to significant distortions. It
also raises
further important questions regarding the burden and standard of proof for the
adjustments necessary to ensure that fair comparison.
49.      Article 2(6a)(a) of the basic Regulation provides as follows:
‘In case it is determined, when applying this or any other relevant provision of [the basic Regulation], that it is not appropriate to use domestic prices and costs in the exporting country due to the existence in that country of significant distortions within the meaning of point (b), the normal value shall be constructed exclusively on the basis of costs of production and sale reflecting undistorted prices or benchmarks, subject to the following rules.
The sources the Commission may use include:
–        corresponding costs of production and sale in an appropriate representative country with a similar level of economic development as the exporting country, provided the relevant data are readily available; …
–        if it considers appropriate, undistorted international prices, costs, or benchmarks; or
–        domestic costs, but only to the extent that they are positively established not to be distorted, on the basis of accurate and appropriate evidence …
…
The constructed normal value shall include an undistorted and reasonable amount for administrative, selling and general costs and for profits.’
50.      Article 2(10) of the basic Regulation provides as follows:
‘A fair comparison shall be made between the export price and the normal value. This comparison shall be 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, shall be made in each case, on its merits, for differences in factors which are claimed, and demonstrated, to affect prices and price comparability. … When the specified conditions are met, the factors for which adjustment can be made are listed as [indicated in points (a) to (k)] …’
51.      The second ground of the Commission’s appeal concerns the General Court’s findings in paragraphs 124 to 139 of the judgment under appeal, in which the General Court found that by deducting ‘the costs at issue’ (namely
insurance costs, transport, handling and loading expenses, credit costs and bank charges) from the export price, the Commission had infringed its obligation to make a fair comparison at the same level of trade
under Article 2(10) of the basic Regulation, since such costs had
likely not been deducted from the constructed normal value.
1.      Background to the disputed issue
52.      In the regulation at issue, (35) the Commission constructed the normal value in accordance with the method laid down
in Article 2(6a) of the basic Regulation for exporting countries with significant distortions. The constructed normal value was based on the undistorted values in the representative country (Türkiye), plus 17.6% for SG&A costs and 4% for profits. The SG&A costs were calculated on the basis of data relating to a Turkish producer, Ilkalem Ticaret Ve Sanayi A.S. (‘Ilkalem’). (36) In recital 341 of the regulation at issue, the Commission concluded that the normal value had been constructed per product type on an ‘ex-works’ basis.
53.      To bring the export price to the same level of trade as the normal value, namely the ‘ex-works’ level, the Commission deducted ‘the costs at issue’ from the export price. (37)
54.      In their comments on final disclosure, Sinopec contested the fact that the Commission had removed ‘the costs at issue’
from the export price, whilst these costs had, allegedly, not been removed from the SG&A costs of the producer in the representative country. (38)
55.      The Commission addressed that issue in recital 314 of the regulation at issue, which is worded as follows:
‘The Commission disagreed with this claim. The Commission noted that there is nothing indicating that such expenses were included in SG&A costs reported for the producer in the representative country. Furthermore, the sampled exporting producers provided no evidence to the contrary. This claim was therefore rejected.’
56.      Sinopec challenged that conclusion before the General Court, arguing that the Commission had infringed Article 2(10) of the basic Regulation.
57.      The General Court upheld that plea. First, in paragraphs 124 to 127 of the judgment under appeal, it considered that
adjustments to establish the ‘ex-works’ level of the export price are necessary to ensure the ‘fair comparison’ required by Article 2(10) of the basic Regulation only if the normal value is also calculated at the ‘ex-works’ level.
Therefore, according to the General Court, on the basis of the case-law, it was for the Commission, which had chosen to make the comparison at issue at the ‘ex-works’ level, to demonstrate that those
adjustments were necessary in order for the comparison to be fair.
58.      Second,
in paragraphs 128 to 139 of the judgment under appeal, the General Court considered that,
in any event, on the assumption that the burden of proof rested with Sinopec and not on the Commission, Sinopec had duly substantiated its request for adjustments. The General Court found that the Commission had based the calculation of the SG&A costs on data relating to Ilkalem taken from the ‘Orbis database’ that were not granular enough to rule out that they included ‘the costs at issue’. Consequently, that Court held that the Commission, which did not have a more precise breakdown of Ilkalem’s SG&A costs, could not reasonably require Sinopec to further substantiate its request for adjustment of the normal value by producing data for an unrelated party that were more precise than the data the Commission itself held.
Therefore, according to the General Court, in recital 314 of the regulation at issue,
the Commission required Sinopec to adduce unreasonable proof. Moreover, the General Court concluded that, unlike the situation in the judgment in
Changmao, (39) the Commission did not provide Sinopec with data that would have enabled it further to substantiate its request for adjustment.
2.      Brief summary of the arguments of the parties
59.      The second ground of the Commission’s appeal is divided into two limbs.
60.      By the first limb, the Commission, supported by Kuraray,
challenges paragraphs 126
and 127 of the judgment under appeal. The Commission
submits
that the General Court misinterpreted
Article 2(10) of the basic Regulation and reversed the well-established rules relating to the burden of proof for adjustments. According to the Commission, the General Court conflated its obligations
under Article 2(6a) and Article 2(10) of the basic Regulation.
61.      By the second limb, the Commission challenges paragraphs 128 to 139 of the judgment under appeal. First, the Commission submits that the General Court distorted the facts when it stated that Sinopec, in the comments on final disclosure, had claimed that the SG&A costs used in the construction of the normal value ‘in all likelihood’ included ‘the costs at issue’. In fact, no likelihood analysis was made in the comments on final disclosure. That argument
was raised only by Wegochem in its intervention before the General Court. Second, the General Court misapplied the standard of proof
under Article 2(10) of the basic Regulation. The General Court merely established that it cannot be ‘ruled out’ that Ilkalem’s data used to establish the constructed SG&A costs included
‘the costs at issue’. Thus, the General Court did not properly establish that the constructed
normal value actually or even likely included ‘the costs at issue’. Third, the General Court misapplied the principle of good administration by finding that the Commission had imposed an unreasonable burden of proof on Sinopec, despite having disclosed all the data it had in relation to the adjustment claimed.
62.      As regards the first limb, preliminarily, Wegochem submits that that limb is ineffective because paragraphs 126 and 127 of the judgment under appeal do not support the operative part of that judgment.
Then, Sinopec, supported by Wegochem,
submits, first, that
that limb
is based on the erroneous premiss that for expenses that are part of the ‘netting-back’ process
there is no need to demonstrate that they are factors affecting price comparability,
whereas such an obligation exists for expenses that are not part of the
‘netting-back’
process. However, both EU and WTO law and case-law contradict that approach. The Commission bears the burden of
proving
the existence of a difference affecting price comparability for any adjustment it makes. Second –
and in any event –
Sinopec submits that the Commission’s reasoning for ‘netting
back’ the export price to the ‘ex-works’ level was flawed since there was no evidence that the normal value calculated pursuant to Article 2(6a) of the basic Regulation was also at the ‘ex-works’ level. The statement in the regulation at issue that the normal value was constructed at the ‘ex-works’ level was unsubstantiated.
63.      As regards the second limb, Sinopec, first, contests the alleged distortion of the facts. In the comments on final disclosure Sinopec did refer – independently of Wegochem – to the likelihood that an ‘ex-works’ export price was being compared to a normal value at a different level of trade.
Second,
the request for an adjustment was duly substantiated and the General Court applied the correct standard of proof. It does not need to be positively established that the amount of the SG&A expenses included ‘the costs at issue’. According to consistent EU case-law, it is sufficient that something cannot be ruled out.
Third, as regards the misapplication of the principle of good administration, the situation in the judgment in
Changmao was different from the one in the present case.
3.      Analysis
64.      Given that the second ground of appeal raises the issue of the interaction between Article 2(6a) and Article 2(10) of the basic Regulation, I consider it
appropriate first to clarify the context of those provisions in light of the existing case-law
(sections (a) and (b)) and then to analyse the two limbs of the second ground of appeal (sections (c) and (d)).
(a)    The construction of the normal value under Article 2(6a) of the basic Regulation
65.      Article 2(6a)(a) of the basic Regulation – recalled in point 49 of the present Opinion – establishes a special regime laying down rules for determining the normal value in the case of exports from countries whose domestic market has been shown to have significant distortions, as defined in that provision.
That special regime was introduced by Regulation (EU) 2017/2321, (40) which
amended Article 2 of the basic Regulation by inserting a new paragraph 6a and by modifying
paragraph 7, which, prior to that amendment, established a special regime for the calculation of the normal value for imports from ‘non-market economy countries’.
66.      While, pursuant to the previous version of Article 2(7) of the basic Regulation, the normal value for non-market economy countries was determined based on actual
prices and costs of a cooperating producer in a market-economy third country, under the new Article 2(6a) methodology,
the normal value of exporting producers is to be constructed based on hypothetical undistorted costs of production and reasonable
amounts for SG&A costs and for profit.
67.      As the Commission explained, when it applies the Article 2(6a) methodology, after requesting information from exporting producers indicating the factors of production and the quantities that are used to manufacture each type of the product concerned, the
Commission then determines undistorted values for the factors of production used based
on ‘readily
available’ information, as provided for in Article 2(6a)(a), first indent, of the basic Regulation, and replaces the distorted prices
and costs with those values
in order to establish the undistorted costs of production.
68.      As regards the SG&A costs – at issue in the present ground of appeal – the
last subparagraph of Article 2(6a)(a) of the basic Regulation
mandates that, to construct the normal value
based
on undistorted costs, an ‘undistorted and reasonable’ amount for SG&A costs and for
profits must be added.
69.      The objective of Article 2(6a) of the basic Regulation
is to prevent distorted data relating to prices and costs in the exporting country from being used for the purposes of anti-dumping investigations. (41)
70.      Furthermore, as was the case for the previous version of Article 2(7) concerning ‘non-market economy countries’, Article 2(6a) of the basic Regulation
too is the expression of the EU legislature’s intention to adopt an approach specific to the EU legal order by establishing a special regime of detailed rules for the calculation of the normal value for imports where significant distortions exist in the exporting country.
Accordingly, as the General Court rightly pointed out, (42) in accordance with the principles developed by the case-law relating to the previous version of Article 2(7),
Article 2(6a) of the basic Regulation cannot
be considered to be a measure intended to ensure the implementation in the EU legal order of a particular obligation assumed in the context of the WTO agreements. In fact, WTO law did not lay down rules for the calculation of the normal value for imports in case of the existence of significant distortions in the exporting country. (43)
71.      In the same vein, the case-law
relating to the previous version of Article 2(7), according to which the EU institutions enjoy broad discretion when determining the normal value in respect of non-market economy countries, (44) shall also be considered applicable to the determination of the normal value under Article 2(6a) of the basic Regulation.
72.      In that regard, the determination of reasonable margins for SG&A costs is no exception to the application of that case-law. Moreover, the last subparagraph of Article 2(6a)(a) of the basic Regulation
does not prescribe any particular methodology for establishing those margins.
Thus, within the two parameters given (namely ‘undistorted and reasonable’),
the Commission enjoys considerable discretion. This is also true as regards the database used to collect the relevant data for the construction of the normal value and of the SG&A costs. (45)
73.      Accordingly, it is for the party seeking to dispute the reliability of the data used by the Commission for the purposes of calculating the SG&A costs to substantiate their assertions with evidence capable of casting specific doubt on the credibility of the method or data used by that institution. (46)
(b)    The obligation to make a fair comparison under Article 2(10) of the basic Regulation
74.      Pursuant to
Article 2(10) of the basic Regulation – recalled in point 50 of the present Opinion – a fair comparison must be made between the export price and the normal value,
at the same level of trade. Where a fair comparison cannot be made between the normal value and the export price, due allowance is to be made, in the form of adjustments, for differences in factors which are claimed and demonstrated to affect prices and price comparability.
75.      The text of the first sentence of Article 2(10) of the basic Regulation is clearly drawn from the first sentence of Article 2.4 of the Anti-Dumping Agreement, in that it uses essentially the same terms. (47) It is thus possible to infer that, at least in terms of the obligation to make a ‘fair comparison’ between the export price and the normal value at the same level of trade, the text of that provision demonstrates the clear intention of the EU legislature to implement in EU law the specific obligation laid down in Article 2.4 of the Anti-Dumping Agreement. (48)
(1)    The fair comparison at the same level of trade
76.      Article 2(10) of the basic Regulation
requires that the fair comparison be made at the same level of trade, without specifying at which level such a comparison should be made. It is therefore for the Commission to choose the appropriate level of trade within its margin of discretion. (49) Although a comparison at the same level of trade does not exhaust the obligation to make a fair comparison, (50) it is one of the basic parameters that ‘further the goal of achieving a fair comparison’. (51) Consequently, a comparison between normal value and export price at different levels of trade can never be considered fair.
77.      In order to compare the normal value and the export price at the same level of trade it may be necessary to adjust those values so as to remove elements or costs that are not incurred at the level of trade chosen for the comparison. (52) In fact,
an imbalance would occur in the comparison of the normal value and the export price if no adjustments
were
made in accordance with Article 2(10) of the basic Regulation, consisting in a deduction from the export price (or, alternatively, from the normal value) of the costs that are not included in the determination of the normal value
(or, alternatively, of the export price) at the level of trade chosen for the comparison. (53)
78.      That process is known as the ‘netting-back’
of the normal value and the export price to the same level of trade.
It consists in eliminating from both values elements that are foreign to the level of trade chosen for the comparison.
In fact,
the aim of the adjustments under Article 2(10) of the basic Regulation is to
re-establish the
symmetry between normal value and export price, (54) in particular,
at the same level of trade.
79.      Accordingly, pursuant to the consistent case-law of the EU Courts, it is apparent from the wording and broad scheme of Article 2(10) of the basic Regulation
that an adjustment to the export price or to the normal value may be made only to take account of differences in relation to factors which affect both prices, and which thus affect their comparability, in order to ensure that the comparison is made at the same level of trade. (55)
(2)    The fair comparison when the normal value is constructed under Article 2(6a) of the basic Regulation
80.      The obligation to make a fair comparison at the same level of trade under Article 2(10) of the basic Regulation and the case-law relating to it undoubtedly also
apply when the normal value is constructed under Article 2(6a) of the basic Regulation. However, in that case the perspective is usually slightly different from cases in which the normal value is determined under the ordinary rules. In fact, when the normal value is constructed under Article 2(6a) of the basic Regulation
the Commission relies on
hypothetical undistorted costs of production and reasonable
amounts for SG&A costs and for profits. Thus, instead of removing, through the ‘netting-back’ exercise, costs that do not belong to the level of trade chosen for the comparison, the Commission should rather first construct the normal value at the level of trade chosen by using upfront ‘readily available’ data that do not include
costs
of that type.
81.      In that regard, as observed,
in essence,
in
the judgment of the General Court in
CCCME, although the practice of making adjustments may prove to be necessary, under Article 2(10) of the basic Regulation, to take account of differences between the export price and the normal value which affect their comparability, certain deductions cannot be made with respect to a value which has been constructed and which is not, therefore, genuine. That value is not generally affected by factors which might damage its comparability, because it has been artificially established by adding together various items,
but not including items that
must be deducted. (56)
82.      In sum, whenever the Commission constructs
the normal value under Article 2(6a) of the basic Regulation
on the basis of ‘readily available’ data at the level of trade chosen for the comparison
(including SG&A costs that have been determined, within its broad margin of discretion, as ‘undistorted and reasonable’ at that level of trade), there is no reason to make adjustments to net back further the normal value, unless it is demonstrated that that
value (or the related
SG&A costs) contains elements that are foreign to that level of trade.
83.      In that
context, with regard to the fair comparison between the normal value constructed under Article 2(6a) of the basic Regulation and the export price, it must be noted that the Court has stated, with specific reference to SG&A costs, that since different rules apply for the determination of normal value and export price, the sales, general and administrative expenses need not necessarily be treated in the same way in both cases. (57)
(3)    The burden and standard of proof relating to adjustments
84.      It is apparent from the consistent case-law of the Court that, if a party claims adjustments under Article 2(10) of the basic Regulation
in order to make the normal value and the export price comparable for the purpose of determining the dumping margin, that party must prove that its claim is justified. Accordingly, the burden of proving that the specific adjustments must be made lies with those who wish to rely on them, irrespective of who they are. It follows that it is for the party wishing to rely on such an adjustment to demonstrate that the factor in respect of which that adjustment is requested is capable of affecting prices and price comparability. (58)
85.      Thus, where a producer claims that an adjustment of the normal value, in principle downward, or an adjustment of the export price, logically upward, applies, it is for that operator to indicate and to establish that the conditions for granting such an adjustment are satisfied. Conversely,
where the Commission considers that it is appropriate to apply a downward adjustment of the export price it is the responsibility of that institution to adduce at the very least consistent evidence showing that the condition required to carry out the adjustment is fulfilled. (59)
86.      The Court has recently confirmed that the rule, according to which it is for the party requesting an adjustment in respect of one of the factors referred to in Article 2(10) of the basic Regulation
to demonstrate that that factor is such as to affect prices and price comparability, applies irrespective of the method used to determine the normal value. (60)
87.      Consequently, the fact that normal value is constructed on the basis of Article 2(6a) of the basic Regulation and therefore on the basis of data from exporting producers from the appropriate representative country cannot lower the burden of proof arising from the case-law cited in point 84 above. (61)
(c)    The first limb of the second ground of appeal
88.      Preliminarily, contrary to Wegochem’s argument, I do not think that the first limb of the second ground of appeal is ineffective. The General Court’s conclusion – in paragraph 139 of the judgment under appeal – that Sinopec’s plea had to be upheld is based on two alternative sets of reasoning. (62) The first limb is directed against the first set of that reasoning (contained in paragraphs 124 to 127 of the judgment under appeal and recalled in point 57 of the present Opinion). If that part of the judgment were maintained, then the General Court’s conclusion that Sinopec’s plea should be
upheld
would stand, making
it unnecessary to analyse the second limb. The first limb is therefore effective.
89.      The first limb of the second ground of appeal concerns, in essence, the issue of the burden of proof regarding the adjustments consisting in the deduction of ‘the costs at issue’ from the export price. The Commission challenges the General Court’s conclusion, in paragraph 127 of the judgment under appeal, that it was for the Commission
‘to demonstrate that those adjustments were necessary in order for the comparison of the export price and the normal value to be fair’.
90.      To address that
issue, it is fundamental to keep the factual background described in points 52 to 55 of the present Opinion in mind. In the present case, the Commission constructed the normal value in accordance with Article 2(6a) of the basic Regulation.
In recital 341 of the regulation at issue, the Commission concluded that the normal value had been constructed on an ‘ex-works’ basis.
91.      To ensure a fair comparison at the same level of trade in accordance with Article 2(10) of the basic Regulation, the Commission had to establish the export price at the same level of trade, namely the ‘ex-works’ level. To bring the export price to that level of trade the Commission deducted ‘the costs at issue’ from the export price, thus carrying out the ‘netting-back’ process mentioned in points 77 and 78 of the present Opinion.
92.      It is undisputed that ‘the costs at issue’ are not attributable to the ‘ex-works’ level of trade chosen by the Commission and that, therefore, the deduction of those costs was necessary to bring the export price to the ‘ex-works’ level.
93.      In fact, both before the Commission and before the General Court, Sinopec did not contest the necessity of the deduction of those costs from the export price to bring that value to the ‘ex-works’ level. Sinopec rather contested the fairness of the comparison between the export price and the constructed normal value in so far as it argued that ‘the costs at issue’ were possibly included in the constructed normal value. Sinopec explicitly put into doubt that the normal value had been constructed at the ‘ex-works’ level.
94.      Consequently, it is Sinopec that asked for an adjustment of the constructed normal value to ensure the fair comparison. Alternatively, for the same reason (namely because, according to Sinopec, the normal value had not been constructed at the ‘ex-works’ level), Sinopec asked the Commission not to carry out the ‘netting back’ of ‘the costs at issue’ from the export price. That reading of the facts is explicitly confirmed both by the wording of paragraph 128 of the judgment under appeal and by the submissions of Sinopec and Wegochem themselves.
95.      Against that background, two considerations apply.
96.      First, I believe that, in the present case, the Commission met the burden of proof it bears (as required by the case-law mentioned in points 84 and 85 of the present Opinion) relating to the necessity to make the downward adjustment to the export price
in order to bring it to the ‘ex-works’ level of trade chosen for the fair comparison.
97.      Once it became clear from the file that the export price contained elements (‘the costs at issue’) that did not belong to that level of trade, the necessity to deduct such costs was self-evident (in re ipsa). (63) In fact, as recalled in point 76 of the present Opinion, a comparison at different levels of trade can never be fair. Contrary to what Sinopec and Wegochem argue, there was no need to further demonstrate that those expenses were factors affecting price comparability. Since they did not belong to the level of trade chosen for the comparison, those expenses by definition affected price comparability. (64)
98.      Of course, given its obligation to guarantee a fair comparison under Article 2(10) of the basic Regulation, the Commission needed to ensure that the normal value
was also constructed at the same level of trade, namely at the ‘ex-works’ level. However, this is an issue concerning the determination of the normal value and not the netting-back of the export price. The Commission had concluded in recital 341 of the regulation at issue that the normal value had been constructed at the ‘ex-works’ level. As long as it is not established that that conclusion was wrong and that the normal value was not constructed at that level – which, as will be seen below, was not demonstrated – this issue does not concern the netting-back of the export price at the level of trade chosen for the comparison.
99.      Second, as is apparent from point 93 of the present Opinion, it is Sinopec that alleged, contrary to the Commission’s finding, that the normal value had not been constructed at the ‘ex-works’ level and that therefore asked for an adjustment of that normal value to ensure a fair comparison. Consequently, according to the case-law mentioned in points 84 and 85 of the present Opinion, it was Sinopec that bore the burden of proof to demonstrate that it was necessary to make an adjustment to the normal value to achieve the ‘ex-works’ level or, alternatively, that the deduction of ‘the costs at issue’ for the netting-back of the export price at that level of trade chosen for the fair comparison was not necessary.
100. The General Court therefore committed an error of law when it concluded, in essence, in paragraphs 126 and 127 of the judgment under appeal, that the Commission had erred in not demonstrating that the deductions of ‘the costs at issue’ from the export price ‘were necessary in order for the comparison … to be fair’. In fact, the Commission had demonstrated the necessity for the downward adjustments of the export price to bring it to the level of trade chosen for the fair comparison. It was rather Sinopec that had argued that the normal value was not constructed at that level of trade and that therefore it was necessary to adjust it to ensure the fair comparison. It was thus for Sinopec to substantiate its allegations.
101. That conclusion is not called into question by Sinopec’s argument according to which there was no evidence that the normal value constructed pursuant to Article 2(6a) of the basic Regulation was also at the ‘ex-works’ level.
102. It is true, as Sinopec argues, that a normal value constructed using the methodology of Article 2(6a) of the basic Regulation is not necessarily and by definition established at the ‘ex-works’ level. A constructed normal value is, however, at the ‘ex-works’ level if the Commission, when constructing it, includes only elements present at that level of trade.
103. Ultimately, when the Commission determines the normal value under Article 2(6a) of the basic Regulation, whether that normal value is or not constructed at the ‘ex-works’ level depends on the data used for its construction. As is apparent from points 80 to 82 of the present Opinion, the Commission should not use, for the calculation of the SG&C costs that will be included in the constructed normal value at the ‘ex-works’ level, data which contain expenses that are not incurred at that level of trade. If the Commission uses such data, it will have to adjust the constructed normal value by deducting those expenses.
104. However, this is exactly what Sinopec was arguing and should have demonstrated in order for the requested adjustment to the constructed normal value to be carried out. This is an issue which concerns the merits of the second limb, which relates to the standard of proof. It has no impact on the question of who carries the burden of proof, namely, in the present case, Sinopec, which was contesting that the normal value had been constructed at the ex-works level of trade and asked for an adjustment.
105. In the light of all the foregoing considerations, I consider that the first limb of the Commission’s second ground of appeal should be upheld.
(d)    The second limb of the second ground of appeal
106. The second limb of the second ground of appeal is directed against paragraphs 128 to 139 of the judgment under appeal, in which the General Court analysed the alternative scenario in which the burden of proof for the adjustments at issue rested with Sinopec. (65) This limb raises three questions relating, first, to the alleged distortion of facts by the General Court (section (d)(1)); second,
to the standard of proof for the adjustment of the normal value requested by Sinopec (section (d)(2)); and, third, to the alleged breach of the principle of good administration committed by the Commission in requiring proof that was unreasonable (section (d)(3)).
(1)    The alleged distortion of facts
107. First, it is necessary to address the Commission’s argument alleging that the General Court distorted the facts by considering, in paragraph 128 of the judgment under appeal, that, in its comments on final disclosure, Sinopec had claimed that the normal value had been constructed by including, ‘in all likelihood’, ‘the costs at issue’.
108. The case-law sets a high threshold for establishing a distortion of facts. The General Court must have made findings of fact which the documents in the file show to be substantially incorrect. The distortion must be obvious from those documents and the General Court must have manifestly exceeded the limits of a reasonable assessment of the evidence. (66)
109. In the present case, a reading of Sinopec’s comments on final disclosure shows that, in that document, Sinopec contested that while ‘the costs at issue’ had been deducted from the export price to bring it to the ‘ex-works’ level, the same exercise had not been undertaken for the constructed normal value. Sinopec submitted that, therefore, the Commission was comparing an ex-works export price with a constructed normal value for which it was unclear at which level of trade that constructed normal value was established. Thus, the normal value was established ‘at a, presumably, delivered basis’.
110. That
textual analysis
of the comments on final disclosure shows that,
as the Commission submits, there was no specific ‘likelihood analysis’ in Sinopec’s submission. It is apparent from the Court’s file that the likelihood scenario was indeed first developed by Wegochem before the General Court.
111. Apart from this, the description of Sinopec’s claim made by the General Court in paragraph 128 of the judgment under appeal is not substantially incorrect. The essence of that claim (namely the deduction of ‘the costs at issue’ from the export price and not from the constructed normal value) is clearly set out. Furthermore, the use of the term ‘presumably’ – albeit expressing a lesser level of certainty than the term ‘in all likelihood’ – implies a certain likelihood analysis.
112. Thus, I do not think that the high threshold necessary to establish a distortion of facts is met in the present case. However, according to settled case-law, the legality of an act of the Commission is to be assessed in the light of the information available to the Commission when the act was adopted. (67) It will therefore be necessary to assess on the merits whether Sinopec duly substantiated its request for the adjustment of the normal value at issue by only referring to its submission as recalled in point 109 of the present Opinion and not on the basis of subsequent arguments added to that submission.
(2)    The required standard of proof under Article 2(10) of the basic Regulation
113. Second, it is necessary to examine the Commission’s argument that the General Court misapplied the standard of proof for adjustments under Article 2(10) of the basic Regulation.
114. As regards the standard of proof required for adjustments under Article 2(10) of the basic Regulation, the case-law cited in point 85 of the present Opinion clarifies that where a producer claims that an adjustment of the normal value, in principle downward, applies, it is for that operator to indicate and to establish that the conditions for granting such an adjustment are satisfied.
115. As regards, specifically, the SG&A costs constructed under the last subparagraph of Article 2(6a)(a) of the basic Regulation,
according to the case-law of the General Court mentioned in point 73 of the present Opinion,
it is for the party seeking to dispute the reliability of the data used by the Commission to substantiate their assertions with evidence capable of casting specific doubt on the credibility of the method or data used by the Commission.
116. In the judgment under appeal, the General Court concluded in paragraph 128 that Sinopec had duly substantiated its request to make the adjustment to the normal value, specifically to the SG&A costs, to ensure a fair comparison. The General Court also found, in paragraph 132 of the judgment under appeal, that it could not be ruled out that the data relating to the Turkish company Ilkalem taken from the Orbis database used by the Commission for establishing the SG&A costs included ‘the costs at issue’. It factually established that those data were not granular or precise enough to determine with certitude whether ‘the costs at issue’ were included or not in those data. (68)
117. A first conclusion that can be drawn directly from the judgment under appeal is that it has not
been definitely established, either during the Commission’s investigation or even at the level of the General Court, that ‘the costs at issue’ were actually included in the data used by the Commission to construct the SG&A costs under the last subparagraph of Article 2(6a)(a) of the basic Regulation. If Sinopec had established that such costs were included in those data, it is apparent from points 80 and 82 of the present Opinion that the Commission should have made an adjustment to the constructed normal value in order to remove those elements that would be foreign to the level of trade chosen for the fair comparison. However, this was clearly not the case here.
118. Against that background, I do not think that it can be considered that, in its request for adjustments recalled in point 109 of the present Opinion, Sinopec established that the conditions for granting such an adjustment were satisfied as required by the case-law mentioned
in point 114 of the present Opinion. Of course, this was a particularly difficult task in that the relevant data concerned a third party, the Turkish producer Ilkalem, and the Commission itself did not have in its possession data allowing it to establish whether ‘the costs at issue’ were included or not in those data. (69)
119. In that context, it may still be questioned, first, whether, on the basis of the doubts expressed in Sinopec’s comments on final disclosure, the Commission should have nevertheless discarded the data
from the Orbis database, because they were not precise enough to determine whether ‘the costs at issue’ would be included or not in the constructed SG&A costs.
120. However, in that regard, it should be noted that, in recital 215 of the regulation at issue, the Commission stated that the available data for Ilkalem was ‘generally on the same level of detail as any publicly available financial data normally used by the Commission in [anti-dumping] investigations. Therefore, the level of detail currently available for this company contains all the necessary information and does not make the company unsuitable for this investigation.’ Sinopec did not contest these statements. It did not contest the suitability of those data to construct the SG&A costs. Thus, there was no reason for the Commission to discard those data.
121. Second, it may also be questioned whether, on the basis of the doubts expressed in Sinopec’s comments on final disclosure, the Commission should nevertheless have searched for more precise data in order to ensure a fair comparison under Article 2(10) of the basic Regulation.
122. In that regard, it should be recalled that, under Article 2(6a)(a) of the basic Regulation, the Commission should construct the normal value on the basis of ‘readily available data’.
123. The ‘readily available’ requirement ensures that, in the context of the construction of the normal value under Article 2(6a) of the basic Regulation, the Commission uses data that can be accessed and verified swiftly. (70) It also ensures that, in the construction of the normal value, the Commission uses data that are publicly accessible or otherwise verifiable by interested parties (while respecting the confidentiality of the data), who can therefore comment on those data during the investigation. This is crucial for the procedural fairness of the construction of the normal value and due process. (71)
124. It is certainly for the Commission to ensure the fairness of the comparison under Article 2(10) of the basic Regulation, including when the normal value is constructed under Article 2(6a) of that regulation based on ‘readily available’ data. However, as recalled in point 27 of the present Opinion, the investigatory powers of the Commission in anti-dumping procedures are limited in that the basic Regulation does not confer on the Commission any power of investigation allowing it to compel companies to participate in the investigation or to provide information.
125. In that context, in recital 238 of the regulation at issue, the Commission stated that ‘further breakdown of the SG&A costs of [Ilkalem] was not readily available’. In the same recital the Commission rightly observed that the basic Regulation provides that the Commission must use information which is ‘readily available’ and does not foresee any requests to producers in the representative country. It also stated that even if it was possible to request and verify such information from those producers, it would most likely concern confidential data. Sinopec has not contested these statements. Moreover, in their submissions, both Sinopec and Wegochem do not specify how or where the Commission could have found more precise data.
126. More generally, it is not excluded that, in certain cases, the ‘readily available data’ that the Commission uses to construct the normal value are not detailed enough to rebut claims for adjustment that, like in the present case, are themselves not sufficiently substantiated.
127. However, this does not imply that, in such cases, the Commission cannot use that data to construct the normal value. This is even more true when the suitability of the data used is not itself called into question. (72) The Court’s case-law confirms that it is not unreasonable or inappropriate to proceed with the determination of the normal value based on such data. (73)
128. Moreover, as recalled in point 72 of the present Opinion, the Commission enjoys broad discretion in establishing undistorted and reasonable SG&A costs to be used in the construction of the normal value under Article 2(6a) of the basic Regulation. Consequently, the standard of judicial review in that context is that of a
manifest error of assessment. (74) It follows that the elements
relied on by an applicant to invalidate that assessment need to be sufficient to render the analysis implausible.
This has not happened in the present case.
129.  In conclusion, all the foregoing considerations entail two consequences.
130. On the one hand, the General Court committed an error of law as regards the standard of proof required for adjustments under Article 2(10) of the basic Regulation in concluding that, in its comments on final disclosure, Sinopec duly substantiated its request for an adjustment of the constructed normal value.
131. On the other hand, although the General Court did not state expressly in the judgment under appeal that, as a consequence of Sinopec’s request for adjustment, to ensure a fair comparison, the Commission should have made the adjustment to the normal value requested, such a conclusion can be deduced from the fact that the General Court upheld Sinopec’s plea relating to the infringement of Article 2(10) of the basic Regulation.
132. However, while, as noted in point 92 of the present Opinion, for the export price it was undisputed that ‘the costs at issue’ needed to be deducted since they did not belong to the level of trade chosen for the comparison, for the constructed normal value there was no precise indication and it had not been not demonstrated, as the General Court itself established, that those costs were included in the data used for constructing the SG&A costs. (75) This is exactly what the Commission stated in the first sentence of recital 314 of the regulation at issue, (76) which is therefore not erroneous in that regard.
133. Thus, by upholding Sinopec’s plea and by considering, in essence, that the conditions for granting the adjustments at issue of the constructed normal value were satisfied in the present case, the General Court committed another error of law relating to the standard of proof required for adjustments under Article 2(10) of the basic Regulation.
(3)    The alleged breach
of the principle of good administration
134. Finally, it is necessary to assess the Commission’s argument relating to the allegedly erroneous finding by the General Court of a breach of the principle of good administration.
135. That last argument of the second limb of the second ground of appeal concerns two reproaches made by the General Court. First, in paragraphs 134 and 135 of the judgment under appeal, the General Court ruled that by requiring Sinopec to further substantiate its request for adjustment by producing data relating to an unrelated party that were more precise than the data that it itself held, the Commission required unreasonable proof. Second, in paragraph 138 of the judgment under appeal, the General Court also reproached the Commission for not having provided Sinopec with data that would have enabled it further to substantiate its request for adjustment.
136. Preliminarily, as the General Court rightly observed, Article 2(10) of the basic Regulation does not specifically reproduce the provision contained in the final sentence of Article 2.4 of the Anti-Dumping Agreement, according to which the ‘authorities shall indicate to the parties in question what information is necessary to ensure a fair comparison and shall not impose an unreasonable burden of proof on those parties’. (77) That provision does not appear to have been specifically transposed in any other article of the basic Regulation. Consequently, it cannot be inferred from Article 2(10), or from any other provision of that regulation, that there was a clear intention on the part of the EU legislature to implement a particular obligation arising from the provision laid down in the final sentence of Article 2.4 of the Anti-Dumping Agreement. (78)
137. While Article 2(10) of the basic Regulation, as such, does not lay down any positive obligation for the EU institutions to provide specific information to the interested parties concerning possible adjustments to ensure a fair comparison, this does not mean, however, that the basic Regulation does not take into consideration the requirements set out in the final sentence of Article 2.4 of the Anti-Dumping Agreement. Those requirements form part of the procedural system created by the EU legislature in connection with the anti-dumping proceedings implemented by the institutions on the basis of that regulation, interpreted in the light of the principle of good administration enshrined in Article 41 of the Charter of Fundamental rights. (79)
138. As regards the first reproach by the General Court, relating to the imposition of an unreasonable burden of proof, it refers to recital 314 of the regulation at issue (recalled in point 55 of the present Opinion).
139. In that recital the Commission found, first, that there was nothing indicating that ‘the costs at issue’ were included in SG&A costs reported for the Turkish producer and, second, that, ‘furthermore’,  Sinopec had ‘provided no evidence to the contrary’. Thus, in that recital, in essence,
the Commission rejected as unsubstantiated Sinopec’s request for adjustment of the normal value made in its comments on final disclosure (recalled in point 109 of the present Opinion).
140. As recalled in point 112 of the present Opinion, the legality of that rejection is to be assessed in the light of the information submitted by Sinopec and not on the basis of subsequent arguments added afterwards. In that regard, the arguments brought before the General Court, especially by Wegochem, show that Sinopec’s request could have been undoubtedly more substantiated than it has been, so as to cast more doubt on the data contained in the Orbis database used by the Commission. Thus, the argument relating to the alleged impossible burden of proof is not capable of remedying the fact that the request for the adjustment of the constructed normal value was not sufficiently substantiated.
141.  In any event, even if it had been unreasonably difficult for Sinopec to establish, as required by the case-law mentioned in
point 114 of the present Opinion,
that ‘the costs at issue’ were included in Ilkalem’s data contained in the Orbis database, it is nevertheless apparent from points 125 and 126 of the present Opinion that, in the absence of definitive certainty as to certain alleged circumstances concerning the ‘readily available’ information used for the construction of the normal value under Article 2(6a) of the basic Regulation, the Commission was entitled to proceed with the use of those data to construct the normal value even if they were not detailed enough to definitively rebut the unsubstantiated claim for adjustment.
142. In that regard, it must also be noted, from a broader policy perspective, that, in the context of the methodology under Article 2(6a) of the basic Regulation, admitting claims for adjustments of the constructed normal value that are not substantiated to the legal standard as required by the case-law mentioned in points 114 and 115 of the present Opinion would entail the risk of undermining the whole methodology based on readily available data.
143. The second reproach by the General Court relates to the fact that Commission did not provide Sinopec with data that would have enabled it to further substantiate its request.
144. In that regard, while, as observed in point 137 of the present Opinion, the procedural system created by the basic Regulation for anti-dumping proceedings, read in the light of the principle of good administration, provides that the parties have some procedural rights in connection with the information necessary for a fair comparison under Article 2(10) of the basic Regulation to be made, it is not written anywhere that the Commission should provide the interested parties with information that it does not have in its file. This means one of two things: either the parties argue that the Commission did not collect sufficient data and therefore claim a breach of the Commission’s duty of care during the investigation; however, it is apparent from points 119 to 128 of the present Opinion that this is not the case in the present case; or they cannot claim a breach of the principle of good administration because they did not receive information which is not on the file.
145. Once it is established that the Commission provided the parties with all the relevant and shareable information that was on the file, there cannot be any breach of the principle of good administration merely because the Commission did not provide an interested party with data that would have enabled it to further substantiate its request. That conclusion is confirmed by the judgment in Changmao,
in which the Court concluded that, in such a situation, an applicant cannot validly complain that the Commission failed to act in accordance with the principle of sound administration and violated its rights of defence by imposing an unreasonable burden of proof on it. (80)
146. It follows from all the above considerations that the third argument of the second ground of appeal should, in my opinion, also be upheld and, consequently, that the second ground of the Commission’s appeal should be upheld in its entirety.
C.      The third ground of appeal, relating to the interpretation of Article 2(10)(i) of the basic Regulation
147. The third ground of the Commission’s appeal concerns the General Court’s findings in paragraphs 65 to 113 of the judgment under appeal,
in which that Court held that the Commission had infringed Article 2(10)(i) of the basic Regulation by applying a downward adjustment to the export price pursuant to that provision.
148. According to Article 2(10)(i) of the basic Regulation,
‘an adjustment shall be made for differences in commissions paid in respect of the sales under consideration. The term “commissions” shall be understood to include the mark-up received by a trader of the product or the like product if the functions of such a trader are similar to those of an agent working on a commission basis.’
1.      Background to the disputed issue
149. As is apparent from recitals 365 to 374 of the regulation at issue, the Commission considered that a downward adjustment
to the export price under Article 2(10)(i) of the basic Regulation was warranted.
150. In particular, in recital 373 of that regulation, the Commission considered that, when looking at the whole picture of the Sinopec Group and at the activities of Sinopec Central-China, a related company making all the export sales of Sinopec’s relevant products to the European Union,
Sinopec Central-China
‘could not be considered as an internal sales department, but rather qualified as a trader within the meaning of Article 2(10)(i) of the basic Regulation’.
To reach that conclusion, the Commission took into consideration in its analysis five elements: (81)
–        first, Sinopec Central-China was looking for customers and established contact with them;
–        second, Sinopec Chongqing, a producer of the relevant products, made direct export sales;
–        third, Sinopec Chongqing and Sinopec Ningxia, another producer of the relevant products, made direct sales in China;
–        fourth, Sinopec Chongqing and Sinopec Ningxia incurred selling costs;
–        fifth, Sinopec Central-China also traded goods made by producers other than Sinopec Chongqing and Sinopec Ningxia.
151. Sinopec challenged the abovementioned conclusion before the General Court.
152. In the judgment under appeal, the General Court, first, rejected the Commission’s argument according to which an adjustment under Article 2(10)(i) of the basic Regulation must in principle be made once an undertaking sets up a related company to perform its export sales functions. (82)
153. Second, the General Court agreed with the Commission that, given the existence of common control, it was necessary to ascertain whether the totality of the relevant facts demonstrated the existence of a ‘single economic entity’ and, therefore, whether the functions carried out by the related trader were similar to those of an internal sales department. Accordingly, the General Court ascertained whether the Commission had adduced sufficient consistent evidence to demonstrate that, notwithstanding the existence of common control, Sinopec Central‑China could not be considered to be acting as an internal sales department, so that it was necessary to make the adjustment at issue. (83)
154. Consequently, the General Court analysed each of the abovementioned five elements. It concluded that the first and fifth elements were not relevant for the purpose of determining whether Sinopec Central-China was an internal sales department or an agent; (84) that the second and third elements did not constitute conclusive evidence that Sinopec Central-China could not be considered to be an internal sales department; (85) and that the fourth element did not change the assessment of the second and third elements. (86)
155. In the light of those considerations, the General Court concluded that the second and third elements were not sufficient to constitute a body of consistent evidence that would demonstrate that the functions of Sinopec Central-China were functions similar to those of an agent acting on a commission basis, or that would preclude recognition of its status as an internal sales department. Therefore, according to the General Court, the Commission had failed to discharge its burden of proof in accordance with the case-law and had committed a manifest error of assessment in finding that Sinopec Central-China was performing functions similar to those of an agent acting on a commission basis. (87)
2.      Brief summary of the arguments of the parties
156. The third ground of the Commission’s appeal is divided into two limbs.
157. By the first limb, the Commission, supported by Kuraray, challenges paragraphs 65 to 79 of the judgment under appeal. The Commission submits that the General Court committed an error of law in
interpreting Article 2(10)(i) of the basic Regulation and disregarded the principle of the burden of proof relating to the adjustment under the relevant case-law. In the present case, the Commission duly discharged its burden of proof. The evidence adduced by the Commission should have shifted the burden of proof on Sinopec in order to let it prove that the adjustment under Article 2(10)(i) of the basic Regulation was not warranted.
It follows that paragraphs 69 and 70 of the judgment under appeal are allegedly vitiated by an error of law.
158. By the second limb, the Commission, first, submits that, by analysing separately each of the items of evidence indicated in point 150 of the present Opinion, the General Court made an error of law in applying Article 2(10)(i) of the basic Regulation. Under the case-law, the significance of those elements can only be considered globally and not by taking into account those elements one by one. Those elements can be meaningful only if they are taken into consideration as a whole body of evidence in support of the conclusion put forward in the regulation at issue. The Commission argues that the General Court failed to apply that standard. Second, the Commission challenges the General Court’s conclusions relating to each of the five elements mentioned in point 150 of the present Opinion. In particular, as regards the third element, the Commission submits a breach of the duty to state reasons by the General Court.
159. As regards the first limb, Sinopec, supported by Weghochem, disputes the Commission’s arguments.
160. As regards the second limb, as a preliminary point, Wegochem argues that it is inadmissible since it is an attempt to contest factual determinations made by the General Court. Sinopec and Wegochem then challenge the Commission’s arguments relating to each of the abovementioned five elements.
3.      Analysis
(a)    The adjustment under Article 2(10)(i) of the basic Regulation
161. Under Article 2(10)(i) of the basic Regulation, an adjustment may be made for differences in commissions paid in respect of the sales under consideration. The second sentence of that provision states that the term ‘commissions’ is to be understood to include the mark-up received by a trader of the product or the like product if the functions of such a trader are similar to those of an agent working on a commission basis.
162. The
second sentence has been inserted in Article 2(10)(i) of the basic Regulation
by Council Regulation (EC) No 1972/2002. (88) It results from recital 6 of that regulation that the rationale of the insertion was to clarify, in line with the consistent practice of the institutions, that such adjustments were also to be made if the parties did not act on the basis of a principal-agent relationship, but achieved the same economic result by acting as buyer and seller.
Accordingly, Article 2(10)(i) of the basic Regulation allows an adjustment to be made not only for differences in commissions paid in respect of the sales under consideration, but also for the mark-up received by traders of the product if they carry out functions which are similar to those of an agent working on a commission basis.
163. However, as the General Court rightly observed in paragraph 60 et
seq. of the judgment under appeal, it results from the case-law that an adjustment under Article 2(10)(i) of the basic Regulation cannot be made where the producer and its related distributor responsible for exports to the European Union
form a single economic entity. (89)
164. In fact, the circumstance that production and sales activities are distributed across legally distinct companies within a group does not alter the fact that the group constitutes a single economic entity. Such a group simply organises its activities internally in a manner that, in other cases, would be carried out by a single legal entity.
The economic rationale of recognising a single economic entity is to prevent the artificial exclusion of sales costs from a product’s valuation simply because a group uses a separate legal subsidiary rather than an internal sales
department. Both corporate structures are economically equivalent. (90)
165. It follows that a distributor that forms a single economic entity with a producer established in a third State cannot be regarded as carrying out functions similar to those of an agent working on a commission basis, within the meaning of Article 2(10)(i) of the basic Regulation. (91)
166. A single economic entity exists where a producer entrusts tasks normally falling within the responsibilities of an internal sales department to a distribution company for its products which it controls economically. (92) Consequently,
although the existence of control by the producer over the related trader, or of control common to both of those companies, is a prerequisite for the existence of a single economic entity, such an entity can be found to exist only if the functions carried out by the related trader are similar to those of an internal sales department. (93)
167. The analysis therefore follows a functional approach. What matters is the substance over the form. In the analysis of whether there is a single economic entity between a producer and its related distributor, it is crucial to consider the economic reality of the relationship between that producer and that distributor. In view of the requirement of a conclusion reflecting the economic reality of the relationship between that producer and that distributor, the EU institutions are required to take account of ‘all factors relevant’
to the determination as to whether or not that distributor carries out the functions of an integrated sales department within that producer. (94)
168. It is in particular necessary to assess the function carried out by the related trader within the group to which it belongs. Accordingly, the Commission should examine the overall functions carried out by that company in the marketing and export of the product concerned as well as of other products, both within the group and in its relations with independent third
party producers. (95)
169. The requirement to consider the economic reality of the relationship between the producer and the related distributor
points to the consideration of elements such as the level of autonomy of the related distributor, (96) risk allocation, remuneration structure of the related company, exclusivity of the relationship or possibility of representing other unrelated producers. (97)
(b)    The first limb of the third ground of appeal
170. By the first limb of the third ground of appeal, the Commission challenges, in essence,
paragraphs 69 and 70 of the judgment under appeal. In those paragraphs, the General Court rejected the Commission’s argument that a ‘general rule’ exists requiring in principle an adjustment under Article 2(10)(i) of the basic Regulation
once an undertaking sets up a related trading company to perform its export sales functions.
171. However, that assessment made by the General Court contains no error of law and, contrary to what the Commission argues, does not disregard the principle of the burden of proof relating to the adjustment under the relevant case-law.
172. As the General Court rightly pointed out in paragraphs 65 to 68 of the judgment under appeal – and as results from point 84 of the present Opinion –
according to consistent case-law,
the burden of proof relating to the specific adjustments listed in Article 2(10) of the basic Regulation must be borne by the party who wishes to rely on them. Thus, where the Commission takes the view that it is appropriate to apply a downward adjustment of the export price, on the ground that a sales company affiliated to a producer, in this case Sinopec Central-China, carries out functions similar to those of an agent working on a commission basis, it is the responsibility of that institution to adduce at the very least consistent evidence showing that that condition is fulfilled. (98)
173. It is only whenever the Commission has adduced consistent evidence to establish that the sales company in question was carrying out functions similar to those of an agent working on a commission basis that said
company or its related producer is to adduce evidence that an adjustment under Article 2(10)(i) of the basic Regulation
is not justified, for example by demonstrating that they form a single economic entity. (99)
174. It follows, first, that there is no general rule in the case-law mandating an adjustment under Article 2(10)(i) of the basic Regulation simply by reason of the fact that the undertaking sets up a related trading company to perform its export sales functions.
175. The Commission must adduce consistent evidence showing that, despite the existence of control by the producer over the related trader, or of control common to both of those companies, the sales company affiliated to the producer (the related distributor) carries out functions similar to those of an agent working on a commission basis.
176. However, in the present case, the question as to whether the Commission has adduced sufficient evidence to conclude that, despite its status as related distributor, Sinopec Central-China carried out those functions is precisely
the issue at stake in the second limb of this ground of appeal.
177. Second, the shift of the burden of proof on Sinopec to which the Commission refers in its appeal, and which is mentioned in point 173 of the present Opinion, will occur only once the Commission has adduced such consistent evidence.
178. It follows that the first limb of the third ground of appeal should be rejected.
(c)    The second limb of the third ground of appeal
(1)    Admissibility
179. As regards
the second limb of the third ground of appeal, it is first necessary to address the plea of inadmissibility raised by Wegochem. As explained in points 22 to 25 of the present Opinion, to which I refer, Wegochem is not entitled to raise such a plea. However, since it raises an issue concerning the Court’s jurisdiction, the Court should examine it of its own motion.
180. According to settled case-law, the Court has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts. (100) Accordingly, in so far as the second limb of the Commission’s third ground of appeal seeks re-examination of the evidence relied on by the General Court in reaching its conclusion that the Commission did not discharge its burden of proof to demonstrate that Sinopec Central-China carried out functions similar to those of an agent acting on a commission basis, the Court does not have jurisdiction to examine such ground of appeal unless that evidence is distorted. (101)
181. However, the issue as to whether the General Court applied the correct standard in the assessment of the evidence is a matter of law, for which the Court has jurisdiction. (102) In the same vein, the issue concerning the relevance of the elements taken into consideration by the Commission in determining whether a related distributor carries out functions which are similar to those of an agent working on a commission basis, or whether a single economic entity exists for the purposes of Article 2(10)(i) of the basic Regulation,
are also matters of law that can be examined in an appeal. (103)
(2)    Substance
182. On the merits, the Commission contests first of all the standard of assessment of the evidence used by the General Court.
183. On that point I agree with the Commission that, according to the case-law,
the five elements
mentioned in point 150 of the present Opinion,
constituting the body of evidence, should not be assessed as to their individual
meaning but should be considered globally as a full body of evidence supporting the conclusion in the regulation at issue.
184. In fact, as results from the case-law mentioned in points 167 and 168 of the present Opinion, determining whether an adjustment under Article 2(10)(i) of the basic Regulation
is warranted, or whether it is not because
the producer and its related distributor responsible for exports to the European Union
form a single economic entity, requires taking account of ‘all relevant factors’
relating to the economic reality of the relationship between that producer and that distributor.
185. However, in the present case, the General Court did carry out a global assessment of all the factors supporting the Commission’s conclusion in the regulation at issue. After analysing each of the five elements individually – in paragraphs 82 to 111 of the judgment under appeal – the General Court reached its final conclusion in paragraph 112, explicitly referring to all of the five elements constituting the body of evidence. The General Court concluded that the only two elements it deemed relevant – namely the second and the third elements – were not sufficient to constitute a body of consistent evidence that would demonstrate that the functions of Sinopec Central-China were functions similar to those of an agent acting on a commission basis. Accordingly, the Commission’s complaint that the General Court applied the wrong standard of assessment should be rejected.
186. The Commission then contests the General Court’s analysis of each of the five elements mentioned in point 150 above constituting the body of evidence supporting its conclusion in the regulation at issue.
187. In that regard, I note that the General Court’s conclusion reached in paragraph 112 of the judgment under appeal, following its global assessment of the evidence, was based only on two of the five elements upon which the Commission had relied in the regulation at issue because the General Court had dismissed two elements (the first and the fifth) as irrelevant, while a third (the fourth element) was found not to alter its assessment of the two remaining elements.
188. Consequently, even if the General Court applied the correct standard of assessment in paragraph 112 of the judgment under appeal, should it be established that its global assessment was based only on a partial set of evidence – due to an error of law in assessing the relevance of certain factors – the entire assessment would be vitiated.
189. As regards the first of the five elements mentioned in point 150 above, namely that Sinopec Central-China was looking for customers and established contact with them, the General Court considered in paragraphs 82 to 84 of the judgment under appeal that it was not relevant. The General Court considered that, since looking for customers and establishing contact with them are activities that may be performed both by an internal sales department and by a sales agent, that element was not relevant for the analysis.
190. The Commission contests that analysis, which, in so far as it relates to the relevance of an element taken into consideration in determining the existence of a single economic entity,
concerns a matter of law. (104)
191. As recalled above, (105) in order to determine the existence of a single economic entity it is necessary to examine the overall functions carried out by the related distributor in the marketing and export of the product concerned in the light of the economic reality of its relationship with the producer.
192. In that context, I agree with the General Court that looking for customers and establishing contact with them is an activity that, in the absence of an external sales agent, may be performed by an internal sales department. Therefore, I think that the General Court did not err when it found that the first element is not decisive for
establishing whether the related distributor acts as an internal sales department or as a sales agent.
193. However, the fact that an element is not necessarily
decisive does not mean that it is irrelevant.
194. The fact that the related distributor looks for customers and establishes contact with them is a relevant factor to understand the overall functions that the related entity carries out in the light of its economic relationship with the producer. Should it be established that the related entity did
not look for customers and did not directly establish contact with them, this would be a strong sign that that entity is not carrying out functions which are similar to those of an agent working on a commission basis. In fact, the case-law shows that the General Court considered the fact that a related distributor marketed the products, managed contacts with existing and potential customers, solicited and received the orders and negotiated the sales to be a relevant element to determine whether that entity acted as an agent. (106)
195. Consequently, the General Court erred in law in concluding in paragraph 84 of the judgment under appeal that the first element was irrelevant in determining whether Sinopec Central-China was acting as an agent working on a commission basis, within the meaning of Article 2(10)(i) of the basic Regulation.
196. As regards the second element, listed in point 150 above, concerning the fact that Sinopec Chongqing made direct export sales, the Commission does not contest any specific error of law in the analysis carried out by the General Court in paragraphs 85 to 94 of the judgment under appeal. It submits that the General Court omitted to link the assessment of the direct sales with an analysis of their relevance as to the economic relationship between Sinopec Chongqing and Sinopec Central-China. However, in so far as the Commission is to be understood as requesting
a re-evaluation of the assessment of the evidence carried out by the General Court, that request is inadmissible on appeal. In so far as the Commission’s complaint is to be understood as
being directed against the standard of assessment used by the General Court, that complaint has already been rejected in points 182 to 185 of the present Opinion.
197. As regards the third element listed in point 150 above, the General Court
held in paragraphs 97 and 98 of the judgment under appeal that, while the direct domestic sales by Sinopec Chongqing and Sinopec Ningxia proved that they possessed the necessary infrastructure to operate without intermediaries, producers may legitimately utilise different internal departments or related entities for their export operations than they do for their domestic markets. The General Court concluded therefore that the third element was not conclusive evidence that might preclude recognition of Sinopec Central-China’s status as an internal sales department.
198. Contrary to what the Commission asserts, I do not see any contradiction in that reasoning. The claim of breach of the duty to state reasons by the General Court cannot therefore be upheld. In so far as the Commission asks the Court to re-evaluate the assessment of the evidence carried out by the General Court and come to a different conclusion than the one reached in the judgment under appeal, that request is inadmissible on appeal.
199. As to the fourth element listed in paragraph 150 above, namely that Sinopec Chongqing and Sinopec Ningxia incurred selling costs, the General Court,
in paragraphs 100 to 102 of the judgment under appeal, linked it to the second and third elements and concluded that it did not change the assessment of those elements.
200. The Commission itself links its complaint against that part of the judgment
to the unlawfulness of the analyses relating to the second and third elements. However, it results from the preceding points of the present Opinion that the complaints against the analysis related to the second and third elements must be rejected. Consequently, the Commission’s complaint against the General Court’s analysis relating to the fourth element also cannot be upheld.
201. As regards, finally, the fifth element listed in point 150 above, concerning the fact that Sinopec Central-China also traded goods made by producers other than Sinopec Chongqing and Sinopec Ningxia,
the General Court concluded, in paragraph 111 of the judgment under appeal, that it was of no relevance in demonstrating that Sinopec Central-China was performing functions similar to those of an agent working on a commission basis. The analysis that led
to that
conclusion is divided into two parts. First,
in paragraphs 106 to 108 of that judgment, after having referred to the relevant case-law, the General Court considered that, as the Commission had
not carried out an examination of the proportion of Sinopec Central-China’s total turnover of the sale of all products purchased from companies other than Sinopec Chongqing and Sinopec Ningxia, it could not rely on the fifth element to argue that no single economic entity was established. Second, in paragraphs 109 and 110 of the judgment under appeal, the General Court held that, in any event,
even if the Commission had been entitled to confine itself to examining the turnover of Sinopec Central-China generated by its PVA sales, it was established that the purchases by Sinopec Central-China of PVA produced by unrelated producers represented
only 2% of its
purchases of PVA from Sinopec Chongqing
and Sinopec Ningxia and that the PVA which it purchased from unrelated producers were in any event sold in China to a ‘related company’.
202. The Commission contests that analysis, which, just as for the first element, in so far as it relates to the relevance of an element taken into consideration in determining the existence of a single economic entity,
concerns a matter of law. (107)
203. As regards the first part of the analysis, on which the General Court relied for its conclusion in paragraph 111 of the judgment under appeal, I observe that the analysis in paragraphs 106 and 107 of that judgment is consistent with the case-law mentioned therein. However, the conclusion in paragraph 108 of that judgment that the Commission could not use the fifth element at all as a relevant factor because the Commission did not analyse the proportion of the total turnover of the sale of all products purchased from companies other than Sinopec Chongqing and Sinopec Ningxia is in my view erroneous.
204. As recalled above, (108) the case-law entitles the EU institutions to take account of ‘all relevant factors’ relating to the economic reality of the relationship between the producer and the related distributor to determine whether a single economic entity exists. Consequently, those factors cannot necessarily be
limited to the analysis of the proportion of the
total turnover of the sales of all products
made by the related distributor. The proportion of the sales of the product concerned can also constitute a relevant factor that the EU institutions are entitled to take into account in the analysis. (109) The General Court therefore erred in law in finding in paragraph 111 of the judgment under appeal that the fifth element was irrelevant because the Commission did not carry out an analysis of the proportion of the total turnover of the sales of all products
made by Sinopec Central-China.
205. As regards the second part of the analysis, contained
in paragraphs 109 and 110 of the judgment under appeal, the General Court carried it out ‘in any event’ and therefore as an obiter dictum. In those paragraphs, although it did not state it expressly, the General Court seems to have concluded, in essence, that, on the basis of the analysis of the very limited proportion of turnover relating (only) to the product concerned generated by Sinopec Central-China from other unrelated producers (considered by the Commission), the fifth element did not constitute sufficient evidence to consider that that company was performing functions similar to those of an agent working on a commission basis.
206. However, it must be observed that that (implicit) conclusion concerning the fifth element is not mentioned at all in paragraph 112 of the judgment under appeal, in which the General Court carries out its global assessment of the five elements. Therefore, the General Court did not take into account at all the fifth element as evidence in that global assessment, given that it (erroneously) considered such an element to be irrelevant.
207. In conclusion, I consider that General Court committed two errors of law by considering that the first and the fifth element were irrelevant in the analysis to determine whether Sinopec Central-China, despite its status of related company, was performing functions similar to those of an agent working on a commission basis.
208. Consequently, since the global assessment of the evidence that the General Court carried out in paragraph 112 of the judgment under appeal was based only on the second and third elements because the General Court erroneously dismissed the first and the fifth as irrelevant, it must be concluded that that global assessment is vitiated by errors of law.
209. Accordingly, I propose that the Court should uphold the second limb of the third ground of the Commission’s appeal.
III. The cross-appeal
210. Sinopec’s cross-appeal concerns paragraphs 141 to 159 of the judgment under appeal. In those paragraphs,
the General Court rejected the plea by which Sinopec contested the Commission’s decision to adjust upwards the normal value under Article 2(10)(b) of the basic Regulation to reflect the difference between the valued added tax (VAT) rate payable and the VAT refund rate upon exportation.
211. By its cross-appeal, Sinopec asks the Court to set aside the judgment under appeal in so far as it upheld the adjustment to the normal value for non-recoverable VAT, to annul the
regulation at issue
in so far as it made that adjustment and to order the Commission to pay the costs; alternatively, Sinopec asks the Court to refer the case back to the General Court and to reserve the costs.
212. The Commission, supported by Kuraray, asks the Court to dismiss the cross-appeal and order Sinopec to pay the costs. Kuraray also asks the Court to declare the cross-appeal inadmissible.
213. In support of its cross-appeal, Sinopec relies on four grounds of appeal.
214. In paragraphs 141 to 159 of the judgment under appeal, the General Court upheld the Commission’s decision,
as set out
in recitals 387 and 388 of the regulation at issue,
to adjust the constructed normal value to account for non-refundable VAT included in the export price. The General Court found that, although the wording of the regulation at issue was not easy to understand, read in context and supported by evidence in the administrative file, the Commission had sufficiently demonstrated, first, that the export price included non-refundable VAT, whereas the normal value had been constructed using representative country data under Article 2(6a) of the basic Regulation
net of VAT, and, second, that,
consequently,
that asymmetry justified an upward adjustment of the normal value to ensure a fair comparison between that value and the export price. (110)
215. However, the General Court held that the Commission had erred in relying on Article 2(10)(b) of the basic Regulation as the legal basis for that adjustment, since that provision does not expressly cover constructed normal values based on representative country data. The General Court found that that error was nevertheless not decisive, as Article 2(10)(k) of the basic Regulation
allowed the Commission to adjust for other factors affecting price comparability, including non-refundable VAT. (111)
A.      Admissibility and effectiveness of the cross-appeal
216. First, Kuraray submits that the cross-appeal is inadmissible in its entirety. According to Kuraray, Sinopec has neither explained nor demonstrated what advantage the cross-appeal would procure to it.
217. By its plea of inadmissibility, Kuraray
contests, in essence, Sinopec’s interest in bringing the cross-appeal. In accordance with settled case-law, for an appellant to have an interest in bringing proceedings the appeal must be capable, if successful, of procuring an advantage to the party bringing it. Moreover, the Court may of its own motion raise the objection that a party has no interest in bringing or in maintaining an appeal. (112)
218. As explained in points 22 to 25 of the present Opinion, since Kuraray is an intervener, it is not entitled to raise such a plea of inadmissibility. Nonetheless, since that plea raises an issue concerning the Court’s jurisdiction, the Court should examine it of its own motion.
219. In my view, there is no doubt that Sinopec has an interest in bringing the cross-appeal. If the cross-appeal is upheld and the Court were to rule that the General Court erred in considering that an adjustment pursuant to Article 2(10)(k) of the basic Regulation
could be made, the normal value used to determine Sinopec’s dumping margin would be lowered, as would, consequently, its anti-dumping duty. This would undoubtedly constitute an advantage for Sinopec.
220. Second, without raising a plea of inadmissibility, the Commission considers that, due to the lack of a cross-appeal against paragraphs 160 to 164 of the judgment under appeal, the cross-appeal is ineffective in its entirety. In particular, Sinopec did not contest paragraph 160 of said judgment, in which the General Court, by using the word ‘necessary’, allegedly confirmed the need for an adjustment.
That paragraph
therefore contradicts Sinopec’s arguments raised in the cross-appeal.
221. Paragraph 160 of the judgment under appeal constitutes merely a summary of Sinopec’s arguments raised in its second complaint of the third part of the second plea at first instance. It is not a finding of the General Court. The lack of a specific challenge to that
paragraph
in no way impacts the effectiveness of the cross-appeal.
B.      The first ground of appeal
222. By the first ground of its cross-appeal, Sinopec submits that by changing, in the judgment under appeal, the legal basis for the adjustment for non-recoverable VAT from Article 2(10)(b) to Article 2(10)(k) of the basic Regulation,
the General Court misinterpreted the chapeau of Article 2(10) as well as Article 2(10)(k) of that regulation.
223. Sinopec submits that, in the present case, the Commission did not demonstrate that the conditions set out in Article 2(10)(k) of the basic Regulation were met, since it did not apply that provision in the regulation at issue, but Article 2(10)(b) of the basic Regulation. It was not for the General Court, but for the Commission to make the adjustment on the basis of Article 2(10)(k) of the basic Regulation and to prove that the conditions for applying
that provision were met. The General Court’s role is limited to examining the legality of acts by the Commission and not to correct legal errors committed by that institution. The General Court’s improper substitution of the legal basis allowed the adjustment to stand despite the Commission’s failure to meet its burden of proof.
224. The Commission, supported by Kuraray, disputes Sinopec’s arguments.
225. In paragraphs 153 to 156
of the judgment under appeal,
the General Court held that the Commission had found that the export price included an amount corresponding to the non-refundable VAT, whereas the normal value had been constructed net of VAT and that, consequently, that asymmetry warranted an upward adjustment of the normal value to ensure a fair comparison between the normal value and the export price.
226. Sinopec does not contest those paragraphs of the judgment under appeal and the findings contained therein. In particular, Sinopec does not contest the necessity to make an upward adjustment of the normal value to ensure a fair comparison under Article 2(10) of the basic Regulation, given the aforementioned
asymmetry, which undoubtedly affected price comparability.
227. In paragraph 157 of the judgment under appeal, the General Court found that the Commission had committed an error of law by considering that the legal basis for the upward adjustment of the normal value was Article 2(10)(b) of the basic Regulation. The General Court ruled, however,
that that
error did not justify the annulment of the regulation at issue since it had no decisive effect on the Commission’s assessment,
given that the conditions of application of Article 2(10)(k) of the basic Regulation were in any case satisfied. It is the ‘substitution of the legal basis’ for the adjustment, as Sinopec describes it, that is contested in this ground of appeal.
228. However, the General Court’s finding in paragraph 157 of the judgment under appeal contains, in my opinion, no error of law.
229. First,
the General Court did not commit any error in finding that the conditions for the application of Article 2(10)(k) of the basic Regulation were satisfied.
230. According to said provision ‘an adjustment may … be made for differences in other factors not provided for under [Article 2(10)(a) to (j) of the basic
Regulation], if it is demonstrated that they affect price comparability …, in particular if customers consistently pay different prices on the domestic market because of the difference in such factors’.
231. That provision constitutes a residual ‘catch-all’ provision which was introduced in EU anti-dumping law (113) in order to allow for adjustments for ‘other factors’ not specifically listed in points (a) to (j) of Article 2(10) of the basic Regulation and, thus,
to eliminate the exclusive nature of that provision in relation to allowances. (114)
232. As I noted in points 225 and 226 of the present Opinion, it is undisputed that the inclusion in the export price of an amount corresponding to the non-refundable VAT, and the construction of the normal value net of VAT constituted a difference in factors affecting prices and price comparability which warranted an upward adjustment of
the normal value under Article 2(10) of the basic Regulation in order to ensure a fair comparison.
Accordingly, the condition set forth in the first sentence of that provision is satisfied.
233. Regarding the second sub-clause of Article 2(10)(k) of the basic Regulation – which states ‘in particular if customers consistently pay different prices on the domestic market because of the difference in such factors’ – the use of the word ‘in particular’ indicates that it does not impose an additional requirement. Instead, it aims at illustrating a situation where the condition – namely that it is demonstrated that the factor in question affects price comparability – has been satisfied.
234. Consequently, given that the General Court found that it had been demonstrated that the asymmetry relating to the VAT between the constructed normal value and the export price affected price comparability, it committed no error in concluding that the conditions for the application of Article 2(10)(k) of the basic Regulation were satisfied.
235. Second, in a situation where it is established that an adjustment was necessary to ensure a fair comparison under Article 2(10) of the basic Regulation
and that the conditions of Article 2(10)(k) of the same regulation were satisfied, the Commission’s error of law in classifying the adjustment under Article 2(10)(b) of that regulation was purely formal in nature. In fact, that error in the legal classification of the adjustment
had no decisive influence on either the Commission’s assessment that the adjustment was necessary or on the amount of the adjustment and the resulting dumping margin.
As
rightly held by the General Court,
an error of
purely formal significance,
particularly concerning the legal basis,
cannot lead to the annulment of the EU act at issue. (115)
236. Third, as regards the alleged overstepping by the General Court of its role, which is limited to examining the legality of the Commission’s acts, I do not think that the General Court exceeded its powers of review by
substituting its own assessment for that of the Commission. In fact, to reach its conclusion,
the General Court relied on factors forming an integral part of the Commission’s reasoning set out in the regulation at issue and the result of its assessment is consistent with the operative part of this act. (116) The General Court did not make a
new assessment of the facts replacing that made by the Commission and, thus,
it did not encroach on the broad discretion of that institution in the field of commercial policy – a discretion justified by the complexity of economic, political and legal situations the Commission is required to examine. (117)
237. In the light of the foregoing considerations,
I propose that the Court reject the first ground of Sinopec’s cross-appeal as unfounded.
C.      The second ground of appeal
238. The second ground of Sinopec’s cross-appeal is directed against paragraph 158 of the judgment under appeal. Sinopec submits that by stating that the constructed normal value ‘replaces’ the price of the product concerned on the domestic market of the exporting country, the General Court misinterpreted Article 2(6a) of the basic Regulation.
According to Sinopec, while a constructed normal value under the methodology of Article 2(3) to (6) of the basic Regulation
is intended to provide a proxy for the domestic sale price, that is not the case for Article 2(6a) of the basic Regulation, which instructs the Commission to completely disregard domestic sales. However, according to Sinopec, demonstrating that ‘customers consistently pay different prices on the domestic market because of the difference in such factors’ is a
necessary condition in order to make an adjustment under Article 2(10)(k) of the basic Regulation.
239. The Commission, supported by Kuraray, disputes Sinopec’s arguments. Kuraray additionally submits that the second ground of appeal is inadmissible because it is not sufficiently clear and precise to enable the Court
to carry out its review.
Consequently, according to Kuraray, it fails to meet the standards under Article 169(2) of the Rules of procedure of the Court of Justice.
240. As regards, first of all, the admissibility of the second ground of appeal, I consider that, even supposing that the Court should analyse of its own motion the plea of inadmissibility submitted by Kuraray, which, as an intervener,
as results from
points 22 to 25 of the present Opinion, is not entitled to raise such a plea, this ground of appeal is not inadmissible. In fact, this ground of appeal indicates precisely the contested elements of the judgment which Sinopec seeks to have set aside (namely
paragraph 158 of the judgment under appeal) as well as the legal arguments specifically put forward
in support of the ground of appeal (namely the alleged infringement
of Article 2(6a) of the basic Regulation). (118)
241. However, in my opinion, this ground of appeal is ineffective. As I noted in point 233 of the present Opinion, the second sub-clause
of Article 2(10)(k) of the basic Regulation does not impose an additional requirement. It highlights instead a specific situation in which
the condition set forth in the first sub-clause – namely that it is demonstrated that the difference in factors
at issue affects price comparability – is met. In paragraphs 153 to 157 of the judgment under appeal, the General Court established that since that condition was met the Commission was allowed to make the upward adjustment of the normal value. Therefore, even if, as Sinopec argues, paragraph 158 of that judgment were erroneous with regard to the interpretation of Article 2(6a) of the basic Regulation in conjunction with the second sub-clause
of Article 2(10)(k) of that regulation, such an error would not call into question the conclusion that the adjustment was warranted in the present case.
242. In any case, the second ground of appeal is also based on an
erroneous
reading of the judgment under appeal. In fact, by stating in paragraph 128 of the judgment under appeal that the constructed normal value ‘replaces’ the price of the product concerned on the domestic market of the exporting country, the General Court did not mean, as Sinopec’s
argument suggests, that the Commission should take
domestic sales into account when constructing the normal value. The General Court rather meant that the constructed normal value under Article 2(6a) of the basic Regulation replaces, in the fair comparison between the normal value and the export price, the normal value as defined under Article 2(1) of the basic Regulation.
243. Consequently, I propose that the Court
also reject the second ground of Sinopec’s cross-appeal.
D.      The third ground of appeal
244. By the third ground of its cross-appeal, Sinopec submits that the General Court distorted the evidence before it by failing to assess the relevance of a decision of the US Court of International Trade (United States), which confirmed that adjustments for non-recoverable VAT are illegal not only in the context of a fair comparison, but also when the normal value is constructed. According to Sinopec, by not making any reference to that
decision in the judgment under appeal and consequently by failing to address its relevance, the General Court distorted the evidence. Sinopec argues that that distortion affects the conclusion set out in paragraph 156 of the judgment under appeal that the Commission had demonstrated the need for an adjustment for non-recoverable VAT.
245. The Commission, supported by Kuraray, disputes Sinopec’s arguments. Kuraray also submits that the third ground of appeal is inadmissible because Sinopec did not provide any element to support the alleged distortion of the evidence. Consequently, according to Kuraray, this ground of appeal fails to meet the standards under Article 169(2) of the Rules of Procedure of the Court of Justice.
246. Again, as regards, first of all, Kuraray’s plea of inadmissibility, I consider that, even assuming that the Court should analyse of its own motion that plea,
which Kuraray, as an intervener,
is not entitled to raise, (119) the third ground of appeal is not inadmissible. Similarly to the previous ground of appeal, the third ground of appeal indicates precisely the contested elements of the judgment which Sinopec seeks to have set aside (namely
paragraph 156 of the judgment under appeal) as well as the legal arguments specifically advanced in support of that ground of appeal (namely the alleged distortion of evidence by not considering the abovementioned decision of the US Court of International Trade).
247. However, in my view, the third ground of appeal should be rejected on the merits.
248. First, I agree with Commission that the consistency of the practice of EU institutions with the approach of the US authorities is not relevant. The decision of the US Court of International Trade is an example of a practice in another jurisdiction that may inspire a certain interpretation of EU anti-dumping law, but cannot be qualified as ‘evidence’. Therefore, since there is no evidence there cannot be any ‘distortion of the evidence’.
249. Second, and in any case, the failure to assess evidence cannot lead to a distortion of that evidence. According to the case-law, a complaint of distortion of the evidence requires the appellant not only to indicate precisely the evidence alleged to have been distorted by the General Court,
but also to
show the errors of appraisal which, in its view, led to such distortion. (120)
250. It follows that a distortion of the evidence presupposes that the evidence has been assessed in a manner manifestly contrary to its content. Sinopec,
however, does not claim that the General Court distorted the assessment of the decision of the US Court of International Trade, which it submitted before that Court. It contends, rather,
that the General Court did not take that evidence into account at all in its assessment. That claim essentially amounts to a complaint of failure to state reasons.
251. However, even if Sinopec’s claim should be understood in that way, it should nevertheless also be rejected. The absence of a reference in the judgment under appeal to the decision of the US Court of International Trade at issue necessarily implies that the General Court regarded such decision as irrelevant. That lack of a reference in that
judgment does not in any case preclude Sinopec from raising complaints against the judgment under appeal or the Court from examining those complaints.
252. Consequently, I propose that the Court also reject the third ground of Sinopec’s cross-appeal.
E.      The fourth ground of appeal
253. By the fourth ground of its cross-appeal, Sinopec challenges paragraphs 150 to 156 of the judgment under appeal. It alleges a breach of the right to be heard and of the obligation to state reasons.
254. First, Sinopec submits that, since the legal basis for the adjustment for non-recoverable VAT was changed from Article 2(10)(b) to Article 2(10)(k) of the basic Regulation,
Sinopec was prevented from providing evidence that the conditions of that latter provision were not met. Sinopec recognises having had the opportunity to argue before the General Court whether the conditions of Article 2(10)(k) of the basic Regulation were met. However, the right to be heard before the Commission, the author of the act, is distinct from the possibility to be heard before the General Court. Sinopec argues that if it had had the chance to present its arguments, specifically on the condition set forth in the second sub-clause of Article 2(10)(k) of the basic Regulation, the Commission may have taken a different decision.
255. Second, Sinopec submits that,
despite its requests, the Commission did not explain why the adjustment at issue was necessary when the normal value is based on information from a third State. It was only during the proceedings before the General Court that the Commission provided an explanation. However, allowing the Commission only to provide explanations during legal proceedings before the EU Courts as to why it took a certain approach, particularly if such an explanation was explicitly requested during the administrative procedure, and where the EU Courts found that the Commission committed an error of law, risks rendering the obligation to state reasons and the right to be heard of the interested parties meaningless.
256. The Commission, supported by Kuraray, disputes Sinopec’s arguments.
257. As regards, first, the alleged violation of the right to be heard, I observe that Sinopec’s argument focuses on the condition set forth in the second sub-clause of Article 2(10)(k) of the basic Regulation. However, as I noted in points 232 and 241 of the present Opinion, the second sub-clause of that provision does not impose an additional requirement, but merely highlights a specific situation in which the condition set forth in the first sub-clause is satisfied. Thus, in such a situation in which the condition mentioned in the first sub-clause is met and therefore the adjustment is warranted, even if it was true that Sinopec did not have the possibility of presenting its arguments on the condition set forth in the second sub-clause, this would not have any impact on the adjustment at issue. This ground of appeal is therefore in my view ineffective.
258. In any case, according to settled case-law, although an applicant cannot be required to show that the Commission’s decision would have been different in the absence of the procedural irregularity in question, but simply that such a possibility cannot be totally ruled out, since that party would have been better able to defend itself had there been no irregularity, the fact remains that the existence of an irregularity relating to the rights of the defence can result in the annulment of the measure in question only where there is a possibility that, due to that irregularity, the administrative procedure could have resulted in a different outcome and thus in fact adversely affected the rights of the defence. (121)
259. However, in the present case, Sinopec did not produce any element that would show that in a situation in which,
as observed in paragraphs 225 and 226 of the present Opinion, the adjustment was warranted, the administrative procedure could have resulted in a different outcome.
260. As regards the second limb of the fourth ground of appeal, the General Court rightly found in paragraph 152 of the judgment under appeal that, according to the case-law of the Court of Justice, ‘a regulation imposing anti-dumping duties must contain the essential part of the Commission’s reasoning, but need not include specific reasons for each of the numerous factual arguments relied on by the interested parties’ and that ‘the Court may therefore ask the Commission for additional explanations and take them into account when carrying out its review, provided that they are based on material in the Commission’s file’.
261. Sinopec does not challenge that case-law, nor does it contest that the additional explanations provided by the Commission were based on material existing in the Commission’s file. Against that background, the second limb of this ground of appeal also cannot succeed.
262. In the light of the foregoing considerations, I propose that the Court also reject the fourth ground of Sinopec’s cross-appeal and, consequently, this cross-appeal in its entirety.
IV.    The action before the General Court
263. In accordance with Article 61(1) of the Statute of the Court of Justice of the European Union, if the Court quashes the decision of the General Court, it may itself give final judgment in the matter, where the state of the proceedings so permits.
264. I consider that this is the case, first, with regard to the second complaint of the third plea raised by Sinopec before the General Court, relating to the alleged punitive nature of the source of the facts available. In fact, it results from points 35 to 46 of the present Opinion that the Commission did not commit any manifest error of assessment in recitals 329 and 333 of the regulation at issue by constructing the normal value for Sinopec Ningxia in accordance with Article 2(6a) of the basic Regulation, using information provided by the other cooperating exporting producers under Article 18 of the same regulation and, in particular, for each product type reported by that company, using the highest normal value of the other cooperating exporting producers. The abovementioned second complaint of the third plea raised by Sinopec should therefore be rejected in its entirety.
265. Second, I consider that the Court may also give final judgment both on the first and second parts of the second plea raised by Sinopec before the General Court, alleging infringement of Article 2(10) of the basic Regulation.
266. As regards
the complaint alleging infringement of the obligation to make a fair comparison at the same level of trade, under Article 2(10) of the basic Regulation, between the export price and the constructed normal value under Article 2(6a) of that regulation, in relation to ‘the costs at issue’, it results from points 64 to 146 of the present Opinion that the Commission did not commit any manifest error of assessment in that regard in the regulation at issue. That complaint – contained in the second part of the second plea raised at first instance –
must therefore be dismissed.
267. As regards the complaint alleging infringement of Article 2(10)(i) of the basic Regulation, it results from points 161 to 169 as well as 184 of the present Opinion that, in order to determine whether an adjustment under Article 2(10)(i) of the basic Regulation is warranted because the related trader carries out functions that are similar to those of an agent working on a commission basis, or whether it is not warranted because the producer and its related distributor responsible for exports to the European Union form a single economic entity, it is necessary to take account of ‘all relevant factors’
relating to
the economic reality of the relationship between that producer and that distributor.
268. In the present case it is therefore necessary to analyse the five elements listed in point 150 of the present Opinion which constitute the body of evidence supporting the Commission’s conclusion in the regulation at issue that the adjustment was warranted. It is necessary to verify whether the Commission adduced, at the very least, consistent evidence showing that the conditions for the application of
the adjustment were fulfilled. (122)
269. As regards
the first element, namely that Sinopec Central-China was looking for customers and established contact with them, it results from points 189 to 194 of the present Opinion that that activity is relevant to determining that a related entity is carrying out functions which are similar to those of an agent working on a commission basis, but is not decisive to assess whether the related distributor acts as an internal sales department or as a sales agent.
270. As regards
the second element, concerning the fact that Sinopec Chongqing made direct export sales to the Unites States, I refer to the analysis contained in paragraphs 88 to 93 of the judgment under appeal that applies correctly the relevant case-law. Accordingly, that element is relevant to the analysis but, in the light of the limited comparative amount of the sales and the specificities of the present case, such an element does not constitute in itself conclusive evidence that the conditions for the application of the adjustment under Article 2(10)(i) of the basic Regulation are fulfilled.
271. As regards
the third element, namely that Sinopec Chongqing and Sinopec Ningxia made direct sales in China, I refer to the analysis contained in paragraphs 95 to 99 of the judgment under appeal that applies correctly the relevant case-law. Accordingly, although that element is also relevant to the analysis, it does not constitute in itself conclusive evidence that the conditions for the application of the adjustment under Article 2(10)(i) of the basic Regulation are fulfilled.
272. The same is true as regards
the fourth element listed in point 150 of the present Opinion, concerning the fact that Sinopec Chongqing and Sinopec Ningxia incurred selling costs. Since it is not disputed that Sinopec Chongqing and Sinopec Ningxia incurred costs only in relation to sales on the domestic Chinese market and, in the case of Sinopec Chongqing, direct export sales to the United States,
the existence of those selling costs is linked respectively to the second and third element.
273. Finally, as regards
the fifth element, concerning the fact that Sinopec Central-China also traded goods made by producers other than Sinopec Chongqing and Sinopec Ningxia, it is established that there is no data on the file concerning the proportion of the total turnover of the sales of all products purchased from companies other than Sinopec Chongqing and Sinopec Ningxia. It is,
however,
apparent from the file that the purchases by Sinopec Central-China of PVA produced by unrelated producers represented only 2% of its PVA purchases from Sinopec Chongqing and Sinopec Ningxia. Thus, the turnover of Sinopec Central-China generated by its PVA sales came from PVA almost all of which it had purchased from Sinopec Chongqing and Sinopec Ningxia. Furthermore, it is also undisputed that the PVA which Sinopec Central-China purchased from unrelated producers were not exported into the European Union but were sold, in China, to a related company and therefore constituted intragroup transactions. Against that background, while the fact that the related trader sells goods from producers other than the related producer is an important element to be taken into consideration in the analysis, under the specific circumstances of the present case, it must be concluded that the fifth element does not constitute sufficient evidence to consider that that related trader was performing functions similar to those of an agent working on a commission basis.
274. In the light of all of the foregoing considerations in relation to the first to fifth elements, I consider that, under the specific circumstances of this case, those elements taken together do not constitute a sufficient body of consistent evidence that would demonstrate that Sinopec Central-China carried out functions similar to those of an agent acting on a commission basis. In those circumstances, it must be concluded that the Commission has not discharged its burden of proof that the conditions for the application of
an adjustment under Article 2(10)(i) of the basic Regulation were met. Consequently, the first part of the second plea in law raised
by Sinopec must be upheld.
V.      The costs
275. Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to the costs. Under Article 138(1) and (3) of those rules, which apply to the procedure on appeal pursuant to Article 184(1) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings and where each party succeeds on some and fails on other heads, the parties shall bear their own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party. Under Article 140(3) of those rules, which apply to the procedure on appeal pursuant to Article 184(1) of the same rules, the Court may order an intervener to bear its own costs.
276. If the Court agrees with my assessment concerning the Commission’s appeal and Sinopec’s cross-appeal, Sinopec will be the unsuccessful party. In those circumstances, since the Commission and Kuraray have claimed that Sinopec should be ordered to pay the costs, I propose that the Court order Sinopec to pay the costs incurred by the Commission and Kuraray in the appeal and in the cross-appeal.
277. However, in the final judgment on the action at first instance that I propose, Sinopec is successful concerning one of the three pleas in law submitted at first instance that constituted the object of the appeal, while the action is dismissed as to the remainder, including the plea that constituted the object of the cross-appeal. Since the Commission has claimed that Sinopec should be ordered to pay the costs at first instance, I propose that the Court order Sinopec to bear 75% of its own costs at first instance and to pay 75% of the costs incurred by the Commission at first instance and order the Commission to bear 25% of its own costs at first instance and to pay 25% of the costs incurred by Sinopec at first instance.
VI.    Conclusion
278. In the light of the foregoing considerations, I propose that the Court should:
–        set aside the judgment of the General Court of the European Union of of 21 February 2024, Sinopec Chongqing SVW Chemical and Others v Commission (T‑762/20, EU:T:2024:113), in so far as it annuls Commission Implementing Regulation (EU) 2020/1336 of 25 September 2020 imposing definitive anti-dumping duties on imports of certain polyvinyl alcohols originating in the People’s Republic of China with regard to Sinopec Chongqing SVW Chemical Co. Ltd, Sinopec Great Wall Energy & Chemical (Ningxia) Co. Ltd and Central-China Company, Sinopec Chemical Commercial Holding Co. Ltd. In calculating the rate of the anti-dumping duty affecting imports into the European Union of polyvinyl alcohols manufactured and sold by them, the European Commission made downward adjustments to the export price under Article 2(10)(e), (g), (i) and
(k) 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;
–        annul Implementing Regulation 2020/1336 with regard to Sinopec Chongqing SVW Chemical Co. Ltd, Sinopec Great Wall Energy & Chemical (Ningxia) Co. Ltd and Central-China Company, Sinopec Chemical Commercial Holding Co. Ltd,
in so far as, in calculating the rate of the anti-dumping duty affecting imports into the European Union of polyvinyl alcohols manufactured and sold by them, the Commission made downward adjustments to the export price under Article 2(10)(i) of Regulation 2016/1036;
–        dismiss the action at first instance as to the remainder;
–        dismiss the cross-appeal of Sinopec Chongqing SVW Chemical Co. Ltd, Sinopec Great Wall Energy & Chemical (Ningxia) Co. Ltd and Central-China Company, Sinopec Chemical Commercial Holding Co. Ltd;
–        order Sinopec Chongqing SVW Chemical Co. Ltd, Sinopec Great Wall Energy & Chemical (Ningxia) Co. Ltd and Central-China Company, Sinopec Chemical Commercial Holding Co. Ltd to pay the costs incurred by the Commission and Kuraray Europe GmbH relating to the appeal and the cross-appeal;
–        order Sinopec Chongqing SVW Chemical Co. Ltd, Sinopec Great Wall Energy & Chemical (Ningxia) Co. Ltd and Central-China Company, Sinopec Chemical Commercial Holding Co. Ltd to bear 75% of their own costs at first instance and to pay 75% of the costs incurred by the Commission at first instance and order the Commission to bear 25% of its own costs at first instance and to pay 25% of the costs incurred by those companies at first instance;
–        order Wegochem Europe BV to bear its own costs;
–        order Kuraray Europe GmbH to bear its own costs at first instance.
1      Original language: English.
2      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’). Article 2(6a) was introduced pursuant to Regulation (EU) 2017/2321 of the European Parliament and of the Council of 12 December 2017 amending the basic Regulation and Regulation (EU) 2016/1037 on protection against subsidised imports from countries not members of the European Union (OJ 2017 L 338, p. 1).
3      Sinopec Chongqing SVW Chemical Co. Ltd (‘Sinopec Chongqing’), Sinopec Great Wall Energy & Chemical (Ningxia) Co. Ltd (‘Sinopec Ningxia’) and Central-China Company, Sinopec Chemical Commercial Holding Co. Ltd (‘Sinopec Central-China’)
(together, ‘Sinopec’).
4      Judgment
of 21 February 2024, Sinopec Chongqing SVW Chemical and Others v Commission (T‑762/20, EU:T:2024:113).
5      Commission Implementing Regulation (EU) 2020/1336 of 25 September 2020 imposing definitive anti-dumping duties on imports of certain polyvinyl alcohols originating in the People’s Republic of China (OJ 2020 L 315, p. 1).
6      Within the meaning of Article 2(6a)(b) of the basic Regulation. See Recitals 91, 170 and 171 of the regulation at issue. The Commission relied in particular on the country report concerning China of 20 December 2017, which it had published pursuant to Article 2(6a)(c) of the basic Regulation.
7      See the text of that
article in
point 49 of the present Opinion.
8      See, respectively, recitals 172 and 222 and recital 87 of the regulation at issue.
9      See the text of that article in point 15 of the present Opinion.
10      Recitals 327 to 333 of the regulation at issue.
11      Recitals 313, 314 and 357 of the regulation at issue.
12      Recitals 358 and 373 of the regulation at issue.
13      Recital 388 of the regulation at issue.
14      Paragraphs 211 to 221 of the judgment under appeal.
15      Paragraphs 125 to 139 of the judgment under appeal.
16      Paragraphs 65 to 113 of the judgment under appeal.
17      See judgment of 28 March 2019, River Kwai International Food Industry v AETMD (C‑144/18 P, EU:C:2019:266, paragraph 23 and the case-law cited).
18      See judgments of 24 March 1993, CIRFS and Others v Commission (C‑313/90, EU:C:1993:111, paragraph 23), and of 6 October 2020, Bank Refah Kargaran v Council (C‑134/19 P, EU:C:2020:793, paragraph 25 and the case-law cited).
19      See, inter alia, judgment of 14 December 2017, EBMA v Giant (China) (C‑61/16 P, EU:C:2017:968, paragraph 33 and the case-law cited).
20      See, inter alia, order of 13 February 2025, RS v EIB (C‑614/24 P, EU:C:2025:103, paragraph 12 and the case-law cited).
21      See judgment of 14 December 2017, EBMA
v Giant (China) (C‑61/16 P, EU:C:2017:968, paragraph 54 and the case-law cited).
22      See judgment of 4 September 2014, Simon, Evers & Co. (C‑21/13, EU:C:2014:2154, paragraph 33). As is clear from its wording,
Article 18(1) of the
basic Regulation must be considered as transposing into EU law Article 6.8 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994
(OJ 1994 L 336, p. 103) (‘the Anti-Dumping Agreement’) and must therefore be interpreted in the light thereof in so far as possible. See
Opinion of Advocate General Mengozzi in EBMA v Council (C‑61/16 P, EU:C:2017:615, point 44 and the references cited).
23      See, to that effect, Opinion of Advocate General Bot in Simon, Evers & Co. (C‑21/13, EU:C:2014:261, point 65).
24      See, to that effect, judgment of 14 December 2017, EBMA v Giant (China) (C‑61/16 P, EU:C:2017:968, paragraph 55). See also paragraph 181 of the judgment under appeal.
25      See judgment of 14 December 2017, EBMA v Giant (China) (C‑61/16 P, EU:C:2017:968, paragraph 56).
26      See, in the same vein, also the judgment of the General Court of 2 October 2024, CCCME and Others v Commission (T‑263/22, EU:T:2024:663, paragraph 227 and the case-law of the General Court cited) (‘the judgment of the General Court in CCCME’).
27      See, in the same vein,
Opinion of Advocate General Mengozzi in EBMA v Council (C‑61/16 P, EU:C:2017:615, point 53).
28      See, by analogy, judgments of 4 September 2014, Simon, Evers & Co. (C‑21/13, EU:C:2014:2154, paragraph 37), and of 26 January 2017, Maxcom v City Cycle Industries (C‑248/15 P, C‑254/15 P and C‑260/15 P, EU:C:2017:62, paragraph 67).
29      See, inter alia, judgment of 2 December 2021, Commission and GMB Glasmanufaktur Brandenburg v Xinyi PV Products (Anhui) Holdings (C‑884/19 P and C‑888/19 P, EU:C:2021:973, paragraph 117 and the case-law cited).
30      See, in the same vein, the judgment of the
General Court in CCCME, paragraph 213 and case-law of the General Court cited. See also paragraph 188 of the judgment under appeal.
31      See, inter alia, judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube (C‑891/19 P, EU:C:2022:38, paragraphs 35 and 36 and the case-law cited).
32      See, in that regard, by analogy, my Opinions in ABLV Bank v SRB (C‑602/22 P, EU:C:2025:347, point 73), and in Deutsche Lufthansa v Ryanair and Others (C‑457/23 P, EU:C:2025:802, points  16 and 17).
33      See Opinion of Advocate General Bot in Anbouba v Council (C‑605/13 P and C‑630/13 P, EU:C:2015:2, point 50), and Opinion of Advocate General Bobek in W and Others (C‑621/15, EU:C:2017:176, point 32).
34      See, to that effect, Opinion of Advocate General Bot in Simon, Evers & Co. (C‑21/13, EU:C:2014:261, point 69).
35      See recitals 335 to 341 of the regulation at issue.
36      See recitals 338, 339 as well as 213 to 220
of the regulation at issue.
37      See recital 357 of the regulation at issue.
38      See recital 313 of the
regulation at issue
and paragraph 128 of the judgment under appeal.
39      Judgment of 28 April 2022, Changmao Biochemical Engineering v Commission (C‑666/19 P, EU:C:2022:323) (‘the judgment in
Changmao’).
40      Regulation of the European Parliament and of the Council of 12 December 2017 amending Regulation (EU) 2016/1036 on protection against dumped imports from countries not members of the European Union and Regulation (EU) 2016/1037 on protection against subsidised imports from countries not members of the European Union (OJ 2017 L 338, p. 1).
41      The General Court rightly pointed this out in paragraph 32 of the judgment under appeal.
42      See paragraphs 41 to 43 of the judgment under appeal.
43      See, to that effect, judgment of 16 July 2015, Commission v Rusal Armenal (C‑21/14 P, EU:C:2015:494, paragraphs 47 to 50).
44      See judgment of 27 October 2011, Dongguan Nanzha Leco Stationery v Council (C‑511/09 P, EU:C:2011:696, paragraph 33 and the case-law cited). See also point 32 of the present Opinion.
45      See, in that regard, the judgment of the General Court in CCCME, paragraph 96 and the case-law of the General Court cited.
46      See, in that regard, the judgment of the General Court in CCCME, paragraph 97 and the case-law of the General Court cited.
47      In that regard, see Opinion of Advocate General Pitruzzella in Donex Shipping and Forwarding (C‑104/19, EU:C:2020:159, points 43 and 44)
48      See, to thisat effect, judgment of 16 July 2015, Commission v Rusal Armenal (C‑21/14 P, EU:C:2015:494, paragraphs 47 to 50).
49      Keeping in mind that Article 2.4 of the Anti-Dumping Agreement provides that such a comparison should be made ‘normally at the ex-factory level’, which corresponds to the ‘ex-works’ level.
50      For a comparison to be fair, it must be unbiased,
objective, and even-handed; see, in that respect,
WTO Appellate Body Report of 5 September 2017 entitled ‘European Union – Anti-dumping measures on imports of certain fatty Alcohols from Indonesia’, WT/DS442/AB/R, paragraph 5.21.
51      Ibidem.
52      See, to that effect, Opinion of Advocate General Bot in Dongguan Nanzha Leco Stationery v Council (C‑511/09 P, EU:C:2011:35, point 90).
53      See, to that effect, judgment of 27 October 2011, Dongguan Nanzha Leco Stationery v Council (C‑511/09 P, EU:C:2011:696, paragraph 36).
54      See judgment of 19 September 2013, Dashiqiao Sanqiang Refractory Materials v Council (C‑15/12 P, EU:C:2013:572, paragraph 29). See also judgment of 10 March 2009, Interpipe Niko Tube and Interpipe NTRP v Council (T‑249/06, EU:T:2009:62, paragraphs 194 and 195). In that regard, see also paragraph 157 in
fine of the judgment under appeal.
55      See the judgment in Changmao,
paragraph 138 and the case-law cited.
56      See the judgment of the
General Court in CCCME, paragraph 188, and relating to the previous version of Article 2(7) of the basic Regulation,
judgment of 18 March 2009, Shanghai Excell M&E Enterprise and Shanghai Adeptech Precision v Council (T‑299/05, EU:T:2009:72, paragraph 266).
57      Judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP (C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraph 51 and the case-law cited).
58      See the judgment in
Changmao,
paragraph 139 and the case-law cited.
59      Judgments of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP (C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraph 61), and of 26 October 2016, PT Musim Mas v Council (C‑468/15 P, EU:C:2016:803, paragraph 84).
60      See the judgment in
Changmao, paragraph 151.
61      See the judgment of the
General Court in CCCME, paragraph 197.
62      This results clearly from the use of the terms ‘in any event’ in paragraph 128 of the judgment under appeal.
63      This has been confirmed by the Court when it stated that the fact that the constructed normal value and the export price are determined at two different levels of trade is a fact that justifies an adjustment. See judgment of 27 October 2011, Dongguan Nanzha Leco Stationery v Council (C‑511/09 P, EU:C:2011:696, paragraph 39). See, to similar effect, a contrario, judgment of 10 March 1992, Sharp Corporation v Council (C‑179/87, EU:C:1992:113, paragraphs 15 to 19).
64      That is why I believe that the distinction – discussed among the parties – between adjustments
under the first sentence of Article 2(10) of the basic Regulation relating to the ‘netting-back’ process
(for which there would be no need to demonstrate that they are factors affecting price comparability) and
adjustments under the third sentence of the same provision (for which such an obligation would exist)
is a kind of ‘fake antinomy’. In fact, all adjustments need to relate to factors affecting price comparability (see the
case-law
mentioned in point 79 of the present Opinion). However, factors that do not belong to the level of trade chosen for the fair comparison affect by definition price comparability.
65      There is no doubt in
my opinion that, contrary to what the Commission argues, the Court will have to analyse the second limb of the second ground even if it upholds the first limb of that ground. As stated in point 88 of the present Opinion, the General Court’s conclusion in that context is based on two alternative sets of reasoning.
66      See, inter alia, judgment of 27 June 2024, Servier and Others v Commission (C‑201/19 P, EU:C:2024:552, paragraphs 60 and 61 and the case-law cited).
67      See, to that effect, ex multi,
judgment of 1 July 2008, Chronopost and La Poste v UFEX and Others (C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 90 and the case-law cited).
68      See paragraphs 132 in fine and 134 in fine of the judgment under appeal.
69      On that issue,
see point 134 et seq. below.
70      By being allowed to use ‘readily available’ data, the Commission should be able to quickly obtain and verify the necessary cost data (from the representative country) to construct the normal value and therefore calculate the dumping margin within the strict time frame of anti-dumping investigations.
71      See, in that regard,
judgment of 21 February 2024, Inner Mongolia Shuangxin Environment-Friendly Material v Commission (T‑763/20, EU:T:2024:114, paragraph 86 et seq., and, in particular,
paragraph 98 et seq.). That judgment, delivered the same day as the judgment under appeal, also concerns the regulation at issue.
72      In that regard,
although authorities ‘must take steps to achieve clarity as to the adjustment claimed and then determine whether and to what extent that adjustment is merited’, ‘the fair comparison obligation does not mean that the authorities must accept each request for an adjustment’. See WTO Appellate Body Report of 15 July 2011 entitled ‘European Communities – Definitive anti-dumping measures on certain iron or steel fasteners from China’, WT/DS397/AB/R, paragraph 488.
73      See, by analogy with the previous version of Article 2(7) of the basic Regulation, the judgment in Changmao, paragraph 107, in which the Court confirmed that the Commission was entitled to determine the normal value without first requesting more detailed information on certain data.
74      See points 33 and 34 of the present Opinion.
75      That solution is consistent with the WTO Appellate Body Report of 18 January 2016, entitled ‘European Communities – Definitive anti-dumping measures on certain iron or steel fasteners from China’, WT/DS397/AB/RW, paragraph 5.163. (and further references), according to which ‘if it is not demonstrated to the authorities that there is a difference affecting price comparability, there is no obligation to make an adjustment’.
76      Recalled in point 55 of the present Opinion.
77      See paragraph 129 of the judgment under appeal. See also Opinion of Advocate General Pitruzzella in Donex Shipping and Forwarding (C‑104/19, EU:C:2020:159, point 46).
78      Opinion of Advocate General Pitruzzella in Donex Shipping and Forwarding (C‑104/19, EU:C:2020:159, point 48).
79      Ibid,
points 51 and 59.
80      See the judgment in Changmao,
paragraph 152.
81      See paragraph 80 of the judgment under appeal.
82      Paragraph 69 et seq. of the judgment under appeal.
83      Paragraph 79 et seq. of the judgment under appeal.
84      Paragraphs 84 and 111 of the judgment under appeal.
85      Paragraphs 94 and 99 of the judgment under appeal.
86      Paragraph 102 of the judgment under appeal.
87      Paragraph 112 of the judgment under appeal.
88      Regulation of 5 November 2002 amending Regulation (EC) No 384/96 on the protection against dumped imports from countries not members of the European Community (OJ 2002 L 305, p. 1).
89      See, in that respect, judgment of 26 October 2016, PT Musim Mas v Council (C‑468/15 P, EU:C:2016:803, paragraph 39).
90      See, to that effect, ibidem,
paragraphs 40 and 41.
91      Ibidem,
paragraph 42.
92      See, to that effect, judgments of 5 October 1988, Canon and Others v Council (277/85 and 300/85, EU:C:1988:467, paragraph 39), and of 10 March 1992, Ricoh v Council (C‑174/87, EU:C:1992:108, paragraph 14). See also judgment of 25 June 2015, PT Musim Mas v Council (T‑26/12, EU:T:2015:437, paragraph 43
and the case-law cited).
93      See, in that respect,
judgment of 25 June 2015, PT Musim Mas v Council (T‑26/12, EU:T:2015:437, paragraph 48).
94      In that respect, judgment of 26 October 2016, PT Musim Mas v Council (C‑468/15 P, EU:C:2016:803, paragraph 43).
95      See, in that respect, judgment of 25 June 2015, PT Musim Mas v Council(T‑26/12, EU:T:2015:437, paragraph 51).
96      Internal departments typically follow strict corporate protocols.
They have no power to negotiate prices outside a narrow range and use the producer’s internal systems, while external agents typically enjoy more commercial autonomy to set local sales prices and marketing strategies and operate with a mandate rather than on a direct reporting line.
97      Internal departments work exclusively for the related group and cannot represent other producers while external agents can represent multiple producers and typically have their own client portfolio.
98      See judgment of 26 October 2016, PT Musim Mas v Council (C‑468/15 P, EU:C:2016:803, paragraph 83 and 84 and the case-law cited).
99      Ibidem,
paragraph 85.
100      See, inter alia, judgment of 26 October 2016, PT Musim Mas v Council (C‑468/15 P, EU:C:2016:803, paragraph 27 and the case-law cited).
101      See, to that effect, ibidem, paragraph 28.
102      See, inter alia, judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2008:392, paragraph 117 and the case-law cited).
103      See, to that effect, judgment of 26 October 2016, PT Musim Mas v Council (C‑468/15 P, EU:C:2016:803, paragraph 36 et seq.).
104      See point 181 of the present Opinion.
105      See points 167 and 168 of the present Opinion.
106      See judgment of 25 June 2015, PT Musim Mas v Council (T‑26/12, EU:T:2015:437, paragraph 80).
107      See point 181 of the present Opinion.
108      See points 167 and 168 of the present Opinion.
109      See, to that effect, a contrario, judgment of 26 October 2016, PT Musim Mas v Council (C‑468/15 P, EU:C:2016:803, paragraphs 44 and 45).
110      Paragraphs 149 to 156 of the judgment under appeal.
111      Paragraphs 157 and 158 of the judgment under appeal.
112      See, ex multis,
order of the President of the Court of 27 October 2011, Inuit Tapiriit Kanatami and Others v Council and Parliament (C‑605/10 P(R), EU:C:2011:710, paragraph 15 and the case-law cited).
113      That provision was introduced in a previous version of the basic Regulation by Council Regulation (EC) No 2331/96 of 2 December 1996 amending Regulation (EC) No 384/96 on protection against dumped imports from countries not members of the European Community
(OJ 199 L 317, p. 1). That provision was introduced following a GATT Panel report of 28 April 1995 in case GD/253 (‘EEC – Imposition of Anti-dumping Duties on Imports of Audio Cassettes from Japan’), in which the panel considered that the Community legislation of the time was too restrictive in confining allowances to a specific and exhaustive list (see Explanatory memorandum to the Commission’s proposal for a Council Regulation (EC) amending Regulation (EC) No 384/96, COM(96) 145 final (OJ 1996 C 159, p. 6)).
114      See second recital of Regulation No 2331/96.
115      See, to that effect, judgments of 3 December 1996, Portugal v Council (C‑268/94, EU:C:1996:461, paragraph 79), and of 23 February 1988, United Kingdom v Council (131/86, EU:C:1988:86, paragraph 11). See also, in the same vein, the case-law of the General Court cited in paragraph 157 of the judgment under appeal.
116      See, to that effect, judgment of 8 December 2011, France Télécom v Commission (C‑81/10 P, EU:C:2011:811, paragraph 33).
117      See, to that effect, judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP (C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraph 68).
118      See, in that regard, judgment of 28 September 2023, Changmao Biochemical Engineering v Commission (C‑123/21 P, EU:C:2023:708, paragraph 87).
119      See points 22 to 25 and 218 of the present Opinion.
120      See in that regard, inter alia, judgment of 24 October 2024, Commission v Intel Corporation (C‑240/22 P, EU:C:2024:915, paragraph 228 and the case-law cited).
121      See, inter alia,
judgment of 5 May 2022, Zhejiang Jiuli Hi-Tech Metals v Commission (C‑718/20 P, EU:C:2022:362, paragraph 49 and the case-law cited).
122      See judgment of 26 October 2016, PT Musim Mas v Council (C‑468/15 P, EU:C:2016:803, paragraphs 83 and 84 and the case-law cited). See also point 172 of the present Opinion.