JUDGMENT OF THE GENERAL COURT (First Chamber, Extended Composition)
1 March 2023 (*) (1)
(Subsidies – Imports of continuous filament glass fibre products originating in Egypt – Implementing Regulation (EU) 2020/870 – Definitive countervailing duty and definitive collection of the provisional countervailing duty – Rights of the defence – Attributability of the subsidy – Manifest error of assessment – Import duty drawback scheme – Tax treatment of foreign exchange losses – Calculation of the undercutting margin)
In Case T‑540/20,
Jushi Egypt for Fiberglass Industry SAE, established in Ain Sokhna (Egypt), represented by B. Servais and V. Crochet, lawyers,
applicant,
v
European Commission, represented by P. Kienapfel, G. Luengo and P. Němečková, acting as Agents,
defendant,
supported by
Association des producteurs de fibres de verre européens (APFE), established in Ixelles (Belgium), represented by L. Ruessmann and J. Beck, lawyers,
intervener,
THE GENERAL COURT (First Chamber, Extended Composition),
composed, at the time of the deliberations, of H. Kanninen, President, M. Jaeger, N. Półtorak, O. Porchia and M. Stancu (Rapporteur), Judges,
Registrar: M. Zwozdziak-Carbonne, Administrator,
having regard to the written part of the procedure,
further to the hearing on 22 March 2022,
gives the following
Judgment
1        By its action under Article 263 TFEU, the applicant, Jushi Egypt for Fiberglass Industry SAE, seeks annulment of Commission Implementing Regulation (EU) 2020/870 of 24 June 2020 imposing a definitive countervailing duty and definitively collecting the provisional countervailing duty imposed on imports of continuous filament glass fibre products originating in Egypt, and levying the definitive countervailing duty on the registered imports of continuous filament glass fibre products originating in Egypt (OJ 2020 L 201, p. 10; ‘the contested implementing regulation’) in so far as it concerns the applicant.
I.      Background to the dispute
2        The applicant is a company formed in accordance with the laws of the Arab Republic of Egypt whose shareholders are Chinese entities. The applicant’s business consists in the production and export of certain woven and/or stitched glass fibre fabrics (‘GFF’) and continuous filament glass fibre products (‘GFR’), the latter being the main raw material used to produce GFF. Those products are sold in particular within the European Union.
A.      The China-Egypt Suez Economic and Trade Cooperation Zone
3        The applicant is established in the China-Egypt Suez Economic and Trade Cooperation Zone (‘the SETC-Zone’). The SETC-Zone was set up together by the Arab Republic of Egypt and the People’s Republic of China. Its history goes back to the 1990s. In 1997, the Prime Ministers of China and Egypt signed a memorandum of understanding, in which the two countries agreed to ‘cooperate in developing the free economic zone in the north of the Gulf of Suez’.
4        In 2002, a wider geographical area of 20 km², which included the SETC-Zone, was classified as a special economic zone by the Government of Egypt, thereby making Egyptian Law No 83/2002 on Economic Zones of a Special Nature (‘Law No 83/2002’) applicable to the SETC-Zone.
5        Next, Chinese and Egyptian public entities set up Egypt TEDA Investment Co. (‘Egypt TEDA’), 80% of whose shares are held by the Government of China and the remaining 20% by the Government of Egypt.
6        In 2012, during a visit by the Egyptian President to China, that president described the SETC-Zone as a key project for bilateral cooperation between the two countries. He also hoped that more and more Chinese undertakings would invest in the SETC-Zone and thus participate in Egypt’s Recovery program.
7        In 2013, the SETC-Zone was extended by 6 km² under a contract between Egypt TEDA and the Egyptian authorities. Also as of 2013, the SETC-Zone was developed under the umbrella of the Chinese ‘Belt and Road’ initiative. That initiative, according to the Guiding Opinions of the Chinese State Council on the Promotion of International Production Capacity and Equipment Manufacturing Cooperation of 13 May 2015, includes the possibility for undertakings ‘going abroad’ to benefit from fiscal and tax support policies, concessional loans, financial support through syndicated loans, export credits, and project financing, equity investment and export credit insurance.
8        In 2015, the special economic zone referred to in paragraph 4 above, of which the SETC-Zone formed part, was officially incorporated into the wider Suez Canal Economic Zone (‘the SCZone’), comprising the area around the Suez Canal. The SCZone was governed by Law No 83/2002, in the context of the ‘Suez Canal Corridor Development Plan’ launched by Egypt.
9        In 2016, the Chinese and Egyptian Presidents officially inaugurated the SETC-Zone 6 km2 expansion project and, on 21 January 2016, signed an agreement between the Government of China and the Government of Egypt (‘the 2016 Cooperation Agreement’), which clarified the significance and legal status of the SETC-Zone.
10      According to the 2016 Cooperation Agreement, the governments of the two countries are to develop jointly the SETC-Zone. They are to do so in line with their respective national strategies, namely the ‘Belt and Road’ Initiative for China on the one hand, and the Suez Canal Corridor Development Plan for Egypt on the other hand. For that purpose, the Government of Egypt provides the land, the labour and certain tax breaks, whereas the Chinese companies operating in the zone run the production facility with their assets and managers. Compensating for a lack of Egyptian funds, the Government of China also supports this project by making the necessary financial means available to Egypt TEDA and to the Chinese firms operating in the SETC-Zone.
B.      The procedure leading to the adoption of the contested implementing regulation
11      On 24 April 2019, the Commission received a complaint from the Association des producteurs de fibres de verre européens (APFE) on behalf of producers representing 71% of total EU production, alleging that imports of GFR originating in Egypt were being subsidised and causing injury to EU industry.
12      Following that complaint, the Commission, on the basis of Article 10 of Regulation (EU) 2016/1037 of the European Parliament and of the Council of 8 June 2016 on protection against subsidised imports from countries not members of the European Union (OJ 2016 L 176, p. 55; ‘the basic anti-subsidy regulation’), on 7 June 2019, initiated an anti-subsidy investigation concerning imports of GFR and, more specifically, as is apparent from point 2 of the notice of initiation of that investigation, chopped glass fibre strands, of a length of not more than 50 mm, glass fibre rovings, excluding glass fibre rovings which are impregnated and coated and have a loss on ignition of more than 3% (as determined by the ISO Standard 1887) and mats made of glass fibre filaments excluding mats of glass wool.
13      The investigation of subsidisation and injury covered the period from 1 April 2018 to 31 March 2019, whereas the examination of trends relevant for the assessment of injury covered the period from 1 January 2016 to the end of the investigation period.
14      During the investigation period, the applicant sold GFR to unrelated customers both in Egypt and abroad. It also sold GFR to three related customers in the European Union, namely Jushi Spain SA, Jushi France SAS and Jushi ltalia Srl as well as to Hengshi Egypt Fiberglass Fabrics SAE (‘Hengshi’), also located in the SETC-Zone.
15      The applicant submitted its comments to the Commission regarding subsidisation and injury on 24 June 2019 and filed its responses to the anti-subsidy questionnaire in July 2019. The Commission also carried out a verification visit at the applicant’s premises.
16      On 7 August 2019, the Government of Egypt also filed its responses to the anti-subsidy questionnaire.
17      On 12 February 2020, the Commission amended the notice of initiation of 7 June 2019 since it had found additional evidence relating to subsidies to be taken into account in the anti-subsidy investigation, namely preferential lending allegedly provided by Chinese State-owned or State-controlled banks to the applicant, and took the view that it was justified to include those subsidies within the scope of the ongoing investigation, in accordance with Article 10(7) of the basic anti-subsidy regulation. The Commission added that it would also further investigate whether the cooperation between the Government of Egypt and the Government of China had influenced other subsidy programmes.
18      After having amended the notice of initiation, on 12 February 2020 the Commission sent the applicant and the Government of Egypt a request for information regarding the additional subsidy programmes included in the scope of the investigation.
19      On 14 February 2020, the Commission sent its pre-disclosure document, informing the applicant of its intention to impose provisional countervailing measures on imports of GFR. On the same date, the Commission also published Implementing Regulation (EU) 2020/199 of 13 February 2020 making imports of continuous filament glass fibre products originating in Egypt subject to registration (OJ 2020 L 42, p. 10). The applicant submitted its comments on pre-disclosure on 19 February 2020.
20      On 17 February 2020, the Government of Egypt submitted its comments in response to the Commission’s request for information, in which it asked that that request for information be withdrawn since it had no legal authority to coordinate the response of Chinese entities located outside its sovereign territory. On 20 February 2020, the Commission responded to the Government of Egypt’s letter and insisted that the requested information could be provided by the Government of Egypt alone or in cooperation with the Government of China. On 27 February 2020, the Government of Egypt sent an additional letter reiterating its demand that the Commission withdraw its request for information on the ground that the actions of Chinese entities could not lawfully be attributed to the Government of Egypt and that the Commission infringed its rights of defence. In that letter, the Government of Egypt also requested a hearing with the Hearing Officer, which was held on 1 April 2020.
21      The Government of Egypt and the applicant eventually submitted their responses to the Commission’s request for information on 5 March 2020.
22      On 4 March 2020, the Commission sent its provisional disclosure to the applicant. The following day, it adopted Implementing Regulation (EU) 2020/379 imposing a provisional countervailing duty on imports of continuous filament glass fibre products originating in Egypt (OJ 2020 L 69, p. 14; ‘the provisional implementing regulation'). That implementing regulation was published on 6 March 2020 in the Official Journal of the European Union and imposed a provisional countervailing duty of 8.7% on the applicant.
23      By letter of 18 March 2020, the Commission informed the applicant that, on the basis of its responses to the request for information, it had to consider applying Article 28 of the basic anti-subsidy regulation with respect to some of the information requested. The applicant replied to that letter on 20 March 2020.
24      On 18 March 2020 also, the applicant submitted its comments on the provisional implementing regulation and a hearing concerning that implementing regulation was subsequently held with the Commission.
25      On 29 April 2020, the Commission sent its final disclosure to the applicant, on which it submitted its comments on 9 May 2020. A hearing concerning that disclosure was subsequently held with the Commission.
26      On 24 June 2020, the Commission adopted the contested implementing regulation. That implementing regulation imposes a definitive countervailing duty of 13.1% on the applicant’s imports of GFR into the European Union.
II.    Forms of order sought
27      The applicant claims that the Court should:
–        annul the contested implementing regulation in so far as it concerns the applicant;
–        order the Commission to pay the costs;
–        order the intervener to bear its own costs.
28      The Commission and the intervener contend that the Court should:
–        dismiss the action as unfounded;
–        order the applicant to pay the costs.
III. Law
29      The applicant puts forward five pleas in law in support of its action. It alleges that (i) the Commission’s decision to countervail the financial contributions granted to the applicant by Chinese public bodies infringes Articles 2(a), 2(b), 3(1)(a), 4(2), 4(3) and 28 of the basic anti‑subsidy regulation and the rights of defence of the Government of Egypt; (ii) the Commission's decision regarding the provision of land to the applicant infringes the applicant’s rights of defence and Article 30 of the basic anti-subsidy regulation as well as Articles 3(2), 5 and 6(d) of the basic anti-subsidy regulation; (iii) the Commission’s decision to countervail the import tariff rebate scheme for imported materials used by the applicant to produce GFR sold to Hengshi infringes Articles 3(1)(a)(ii), 3(2) and 5 of the basic anti-subsidy regulation; (iv) the Commission’s decision to countervail the tax treatment of foreign exchange losses infringes Articles 3(2) and 4(2)(c) of the basic anti-subsidy regulation, and (v) the Commission’s methodology for the determination of the applicant’s undercutting margin infringes Articles 1(1), 2(d), 8(1), 8(2) and 8(5) of the basic anti-subsidy regulation.
A.      The first plea, alleging infringement of Article 2(a) and (b), Article 3(1)(a), Article 4(2) and (3), and Article 28(1) of the basic anti-subsidy regulation
30      This plea is divided into three parts.
1.      The first part of the first plea, alleging infringement of Article 28(1) of the basic anti-subsidy regulation and of the rights of the defence of the Government of Egypt
31      By the first part of the first plea, the applicant alleges, in essence, infringement of the rights of defence of the Government of Egypt, in that the Commission asked it to provide information which it did not have. That information concerned the Chinese financial sector, the China Banking Regulatory Commission, the Chinese Export & Credit Insurance Corporation, Chinese policy banks, such as the China Development Bank and the Export-Import Bank of China, as well as other State-owned commercial banks, the China-Africa Development Fund, and the overseas economic and cooperation zone approved by the Chinese Ministry of Commerce. In view of the failures of the Government of Egypt in providing information, the Commission applied Article 28(1) of the basic anti-subsidy regulation to impose countervailing duties in respect of certain subsidies, such as preferential loans granted by Chinese public bodies, the assistance of Chinese public bodies with capital investment and the provision of land for less than adequate remuneration.
32      The Commission, supported by the intervener, disputes the admissibility of this part of the plea, since the applicant cannot rely on the infringement of the procedural rights of another interested party.
33      As a preliminary point, it must be borne in mind that a plea for annulment is inadmissible on the ground of lack of interest in bringing proceedings where, even if it were well founded, annulment of the contested act on the basis of that plea would not give the applicant satisfaction (see judgment of 9 June 2011, Evropaïki Dynamiki v ECB, C‑401/09 P, EU:C:2011:370, paragraph 49 and the case-law cited).
34      In other words, a plea for annulment is admissible only if it is susceptible of justifying an annulment which would be of advantage to the applicant, that is to say, one in which he or she has a personal interest (judgment of 11 July 2007, Wils v Parliament, F‑105/05, EU:F:2007:128, paragraph 38).
35      More specifically, breach of the rights of the defence is an irregularity which by its nature is subjective and which must therefore be raised by the persons concerned themselves. Thus, infringement of an individual right may be relied on only by the person whose right has allegedly been infringed, but not by third parties (see, to that effect, judgment of 19 September 2019, Zhejiang Jndia Pipeline Industry v Commission, T‑228/17, EU:T:2019:619, paragraphs 31 and 36 and the case-law cited).
36      In the present case, it should be noted that the applicant relies, in essence, on infringement of the rights of defence of a third party, in this case the Arab Republic of Egypt, in that the Commission asked that State to provide information which it did not have. As is apparent from the case-law cited in paragraphs 33 to 35 above, the applicant is not entitled to rely on a plea alleging infringement of the rights of defence of a third party.
37      The first part of the first plea must therefore be rejected.
2.      The second part of the first plea, alleging infringement of Article 2(a) and (b) and Article 3(1)(a) of the basic anti-subsidy regulation
38      The applicant puts forward three main complaints in support of this part. First, in its submission, the Commission’s interpretation of Article 3(1)(a) of the basic anti-subsidy regulation is not justified under EU law. Second, the Commission’s reliance on World Trade Organization (WTO) law to interpret Article 3(1)(a) of that regulation is unfounded. Third, the Commission’s interpretation of Article 1.1(a)(1) of the Agreement on Subsidies and Countervailing Measures (‘the SCM Agreement’) does not comply with WTO case-law and public international law.
39      In support of the first complaint, the applicant submits that it follows from a literal interpretation of Article 3(1)(a) of the basic anti-subsidy regulation, the wording of which is clear and precise, and there being no need to also interpret it in the light of the Vienna Convention on the Law of Treaties of 23 May 1969 (‘the Vienna Convention’) and of the Draft articles on the Responsibility of States for Internationally Wrongful Acts, as adopted in 2001 by the International Law Commission of the United Nations (‘the ILC Articles’), that, not only the government granting the financial contribution, but also the financial contribution itself must be within the territory of the country of origin or export. That interpretation is supported by the overall context of the basic anti-subsidy regulation, in particular Article 10(7) and Article 13(1) thereof.
40      In support of the second complaint, the applicant submits that the Commission was wrong to interpret Article 3(1)(a) of the basic anti-subsidy regulation in the light of WTO law. It states that, while, according to the case-law, the EU Courts may review the legality of an EU measure in the light of WTO rules where the European Union intends to implement a particular obligation assumed in the context of the WTO, in the present case, an interpretation in the light of WTO law cannot be relied upon in relation to provisions of the basic anti-subsidy regulation which differ from those of the SCM Agreement. According to the applicant, the wording of the SCM Agreement is clearly different from that used in that regulation with regard to the definition of ‘subsidy’.
41      In support of its third complaint, the applicant argues that, even if WTO law should be taken into account in order to interpret the term ‘government’ in the basic anti-subsidy regulation, the Commission’s interpretation of Article 1.1(a)(1) of the SCM Agreement is still incorrect, as it disregards Article 31(1) and (3) of the Vienna Convention. It is clear from that article of the SCM Agreement that the actions of governments of third countries cannot be attributed to the government of the country of origin or export. That interpretation is confirmed by other provisions of that agreement, such as Article 13(1), (2) and (4) and Article 18(1)(a).
42      Moreover, Article 11 of the ILC Articles is not a ‘relevant’ rule of international law within the meaning of Article 31(3)(c) of the Vienna Convention for the purposes of interpreting the term ‘government’ in Article 1.1(a)(1) of the SCM Agreement. The WTO Appellate Body did not rule otherwise in the case ‘United States – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China’ (WT/DS 379/AB/R). In the reply, the applicant adds that, if the applicable law in that investigation had been the SCM Agreement rather than the basic anti-subsidy regulation, the Commission could have classified as subsidies, within the meaning of Article 1.1 of the SCM Agreement, the financial contributions granted by Chinese entities to the applicant, without having to ‘attribute’ those financial contributions to the Government of Egypt on the basis of Article 11 of the ILC Articles. Article 11 of the ILC Articles in any event is not applicable in the present case since it is intended to govern the conduct of a State which becomes part of another State following the acquisition of a territory, which is attributable to the succeeding State, or the subsequent adoption by a State of a private wrongful act which has been committed or is still ongoing. The applicant states that it is Articles 16 to 18 of the ILC Articles which govern the responsibility of the State in connection with the act of another State, and not Article 11 of those articles.
43      The Commission, supported by the intervener, disputes those arguments.
44      As is apparent from paragraph 39 above, according to the applicant, the Commission’s interpretation of Article 3(1)(a) of the basic anti-subsidy regulation, in particular the concept of ‘government’ of the country of origin or export, is not justified under EU law.
45      In order to address that issue, it should be recalled that, according to the case-law, each provision of EU law must be placed in its context and interpreted in the light of the provisions of EU law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied (see, to that effect, judgment of 28 July 2016, Association France Nature Environnement, C‑379/15, EU:C:2016:603, paragraph 49 and the case-law cited).
46      In that regard, first, it should be recalled that Article 3 of the basic anti-subsidy regulation provides that a subsidy is deemed to exist if the conditions in paragraphs 1 and 2 are fulfilled, that is to say if there is a ‘financial contribution’ by a government in the country of origin or export and if a ‘benefit’ is thereby conferred.
47      Article 2(b) of that regulation defines the term ‘government’ as a government or any public body within the territory of the country of origin or export.
48      The definition of ‘government’ in that article merely interprets the term ‘government’ as including the government or public bodies of the country of origin or export. However, that provision does not rule out the possibility that the financial contribution may be attributed to the government of the country of origin or export of the product concerned, on the basis of the specific evidence available.
49      Second, it should be noted that recital 5 of that regulation states that ‘in determining the existence of a subsidy, it is necessary to demonstrate that there has been a financial contribution by a government or a public body within the territory of a country, or that there has been some form of income or price support within the meaning of Article XVI of the GATT 1994, and that a benefit has thereby been conferred on the recipient enterprise’.
50      The words ‘within the territory of a country’ used in that recital do not imply that the financial contribution must come directly from the government of the country of origin or export. On the contrary, the use of those words, as the Commission points out, does not preclude the possibility of concluding that the financial contributions may be attributed to the country of origin or export of the product concerned.
51      Thus, the basic anti-subsidy regulation does not rule out the possibility that, even if the financial contribution does not come directly from the government of the country of origin or export, that contribution may be attributed to it.
52      The foregoing conclusion is all the more relevant in the specific context of the SETC-Zone, in which the applicant is located.
53      In the first place, the Commission took into consideration, in recital 78 of the contested implementing regulation, two statements made by two Egyptian Presidents relating to the SETC-Zone. The first statement, from 2012, referred to that zone as a key project of the bilateral cooperation between Egypt and China. The second statement, from 2014, related to the ‘Belt and Road’ initiative and specified, inter alia, that that initiative provided a significant opportunity for Egyptian recovery and that the Egyptian authorities were ready for active involvement and to provide their support. The Egyptian authorities wished to cooperate with China in developing inter alia the projects of the Suez Canal Corridor, the SETC-Zone, and in attracting Chinese undertakings to invest in Egypt.
54      In that regard, recital 79 of the contested implementing regulation states that the characteristics of the Chinese ‘Belt and Road’ initiative are public knowledge and that, according to the Guiding Opinions of the Chinese State Council on the Promotion of International Production Capacity and Equipment Manufacturing Cooperation of 13 May 2015, the policy support which undertakings ‘going abroad’ can receive include fiscal and tax support policies, concessional loans, financial support through syndicated loans, export credits, and project financing, equity investment, and finally export credit insurance.
55      In the second place, the Commission took into consideration, in recital 81 of the contested implementing regulation, the fact that the SETC-Zone was the subject of the 2016 Cooperation Agreement between the Government of China and the Government of Egypt. That agreement provides inter alia, according to Article 1 thereof, that the People’s Republic of China may apply certain of its laws within the SETC-Zone. Article 4(1) of that agreement provides that ‘the Chinese Government identifies the [SETC-Zone] as China’s overseas economic and trade cooperation zone’ and that ‘the Cooperation Zone, during the construction, business attraction and operation, is entitled to relevant policy support and facilitation provided by the Chinese Government for overseas economic and trade cooperation zones’. Article 5(1) of that agreement also provides that the Government of China is to support the Cooperation Zone by ‘encouraging relevant financial institutions to provide financing facility for … investment projects located within the Cooperation Zone, provided that the lending conditions and the loan use requirements are met’.
56      In the third place, recital 48 of the contested implementing regulation states that, in order to ensure the implementation of the 2016 Cooperation Agreement, the Government of China and the Government of Egypt established a three-level consultation mechanism, including a cooperation agreement for the creation of an Administration Commission for the SETC-Zone, a Management Committee for the zone, and subsequently reporting on problems and difficulties by Egypt TEDA and the Egyptian counterparts. It is moreover apparent from recital 40 of that regulation that Egypt TEDA is 80% owned by the Government of China and 20% owned by the Government of Egypt and is intended to drive the development of the SETC-Zone in Egypt.
57      Lastly, it is apparent from recital 173 of the contested implementing regulation that the financial support granted to the applicant was particularly significant.
58      The Government of China and the Government of Egypt therefore worked closely together to establish the SETC-Zone as a zone with special legal and economic features which enabled the government authorities of China to confer directly all the facilities inherent in China’s ‘Belt and Road’ initiative on the Chinese undertakings established in that zone.
59      In those circumstances, it cannot be accepted that an economic and legal construct such as that of the SETC-Zone, conceived in close collaboration between the Government of China and the Government of Egypt at the highest level, is not covered by the basic anti-subsidy regulation, without this undermining that regulation’s effectiveness or its purpose and objectives.
60      Third, contrary to what is claimed by the applicant, the Commission’s interpretation of Article 3(1)(a) of the basic anti-subsidy regulation is not contrary to either Article 10(7) or Article 13(1) of that regulation. As regards Article 10(7), the basic anti-subsidy regulation in no way precludes the possibility of the government of the country of origin or export from being consulted on the financial contributions attributable to it. In the present case, it is also apparent from the file that the Commission did indeed invite the Government of Egypt for consultations on issues such as the preferential loans granted by Chinese entities.
61      As regards Article 13(1) of that regulation, which allows, inter alia, the country of origin or export to eliminate or limit the subsidy or take other measures concerning its effects, such a possibility remains valid where the financial contribution may be attributed to the government of the country of origin or export. In the present case, it was open to the Government of Egypt to stop the close cooperation with the Government of China in relation to the financial contributions or to propose measures to limit the effects of the subsidies at issue.
62      In the light of the foregoing, it must be concluded that neither Article 3(1)(a) of the basic anti-subsidy regulation nor the general scheme of that regulation precludes a financial contribution granted by the government of a third country from being attributed to the government of the country of origin or export in a case such as that at issue in the present case, in the light of the specific evidence available as set out in paragraphs 53 to 58 above.
63      Furthermore, contrary to what the applicant claims, that conclusion is supported by the provisions of Article 1 of the SCM Agreement, in the light of which the basic anti-subsidy regulation must be interpreted. In that regard, it should be recalled that, where the European Union intended to implement a particular obligation assumed in the context of the WTO, or where the EU measure refers expressly to precise provisions of the WTO agreements, it is for the Courts of the European Union to review the legality of the EU measure in question in the light of the WTO rules (see, by analogy, judgment of 14 July 2021, Interpipe Niko Tube and Interpipe Nizhnedneprovsky Tube Rolling Plant v Commission, T‑716/19, EU:T:2021:457, paragraph 95 and the case-law cited).
64      It is apparent from recital 3 of the basic anti-subsidy regulation that the purpose of that regulation is, inter alia, to ‘reflect’ in EU legislation the rules of the SCM Agreement ‘to the best extent possible’.
65      Moreover, it has already been established by the case-law that Article 3 of the basic anti-subsidy regulation, entitled ‘Definition of a subsidy’, and Article 1 of the SCM Agreement are largely identical in their wording and fully identical in terms of their substance (see, to that effect, judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑300/16, EU:T:2019:235, paragraph 99).
66      Furthermore, no intention on the part of the legislature to depart from the substance of Article 1.1(a)(1) of the SCM Agreement is apparent from the recitals of the basic anti-subsidy regulation. On the contrary, as is apparent from recital 3 of that regulation cited in paragraph 64 above, the legislature did indeed intend to implement a particular obligation assumed in the context of the SCM Agreement within the meaning of the case-law cited in paragraph 63 above.
67      Thus, contrary to what the applicant claims, the provisions of the basic anti-subsidy regulation must be interpreted, as far as possible, in the light of the corresponding provisions of the SCM Agreement (judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑300/16, EU:T:2019:235, paragraph 101). The same is true of Article 3 of that regulation, which seeks to implement the content of Article 1 of the SCM Agreement (judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑300/16, EU:T:2019:235, paragraph 102).
68      As regards Article 1.1(a)(1) of the SCM Agreement, it should be noted, first, that the latter defines a subsidy as a financial contribution by a government or any public body within the territory of ‘a’ Member of the WTO. That wording does not therefore preclude the possibility that a financial contribution granted by a third country may be attributed to the government of the country of origin or export, since it is sufficient that the financial contribution of the government or any public body is within the territory of ‘a’ Member of the WTO.
69      In the second place, Articles 13 and 18 of the SCM Agreement, which relate to consultations and undertakings respectively, do not call into question the foregoing considerations. The wording and purpose of those provisions do not exclude situations in which the financial contribution is attributed to a WTO member, since, first, members whose products may be investigated may be consulted on financial contributions attributable to them and, second, members whose products may be investigated may impose limitations on the subsidies attributable to them.
70      In the light of the foregoing, it must be held that, since the Commission correctly interpreted the basic anti-subsidy regulation in the light of the SCM Agreement, the question whether or not it took Article 11 of the ILC Articles into account is irrelevant. Consequently, it is also necessary to reject the third complaint of the present part of the plea and, therefore, that part in its entirety.
3.      The third part of the first plea, alleging infringement of Article 4(2) and (3) of the basic anti-subsidy regulation
71      The applicant submits, in essence, that the Commission infringed Article 4(2) and (3) of the basic anti-subsidy regulation in so far as it offset contributions to it, which does not fall within the territorial jurisdiction of the granting authority. In the applicant’s view, it is clear from those provisions that, in order to be regarded as specific within the meaning of the basic anti-subsidy regulation, a subsidy must be made available to undertakings ‘within the jurisdiction of the granting authority’ and that the authority under whose jurisdiction the undertakings receiving the subsidies must be located is that which grants the subsidies and not that which is said to have acknowledged or adopted those subsidies. Such an interpretation is also confirmed by the Commission’s practice and by the WTO case-law, in particular in ‘United States – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China’ (WT/DS 379/AB/R). Since, in the present case, the granting authority responsible for the actions of public bodies, such as State-owned banks, the State-owned Assets Supervision and Administration Commission (SASAC) and the Silk Road Fund, was the People’s Republic of China and not the Government of Egypt, the applicant concludes that undertakings located in Egypt are not within the jurisdiction of the granting authority and that, therefore, the financial contributions granted to it by those bodies cannot be regarded as specific within the meaning of Article 4(2) and (3) of the basic anti-subsidy regulation. That conclusion is said to be supported by the fact that those subsidies were not granted directly to the applicant by those bodies, but were granted to its parent companies in China.
72      The Commission, supported by the intervener, disputes those arguments.
73      In that regard, Article 4(3) of the basic anti-subsidy regulation provides that a subsidy, which is limited to certain enterprises located within a designated geographical region within the jurisdiction of the granting authority, is to be specific.
74      It is apparent from the analysis of the second part of the first plea in law that the preferential support granted by the Government of China may be attributed to the Government of Egypt. As the Commission maintains, the fact that the preferential measures granted by the Government of China from which the Chinese companies established in the SETC-Zone benefited can be attributed to the Government of Egypt means that the Government of Egypt has the status of authority which granted the preferential financing. Moreover, that consideration applies both to the loans granted directly to the applicant and to the loans granted to the applicant’s parent companies in China, from which the applicant benefited.
75      It follows that the Commission did not infringe Article 4(2) and (3) of the basic anti-subsidy regulation.
76      Accordingly, the third part must be rejected, as must the first plea in law in its entirety.
B.      The second plea, alleging infringement of Article 30, Article 3(2), Article 5 and Article 6(d) of the basic anti-subsidy regulation
77      This plea consists of two parts.
1.      The first part of the second plea, alleging infringement of Article 30 of the basic anti-subsidy regulation and of the rights of the defence
78      The applicant submits that the Commission infringed its rights of defence, as well as Article 30 of the basic anti-subsidy regulation, by failing to disclose, before the publication of the contested implementing regulation, to the applicant or to the Government of Egypt, its full reasoning on the calculation of the amount of the benefit with regard to the provision of land to the applicant, in particular as regards the calculation of the value of the usufruct right, as set out in recital 281 of the contested implementing regulation. It is true that the Commission informed the applicant of its intention to countervail that provision of land by using the valuation carried out in 2016 by a committee of experts in order to establish a pricing map for the usufruct of land in the SCZone (‘the real estate valuation of 2016’) as a benchmark for the calculation of the benefit. The Commission, however, failed to explain the reasons why it conducted the benefit calculation by multiplying the yearly usufruct rate by 50 years instead of using a proper valuation formula.
79      If the applicant had been aware of the reasons given by the Commission in recital 281 of the contested implementing regulation during the administrative phase of the investigation, it could have provided additional evidence and comments rebutting the Commission’s arguments, such as those that it put forward in the second part of the present plea. In that regard, the applicant states, first, that it would have been able to point out to the Commission that the headings of the real estate valuation of 2016 clearly provide that the prices were set for ‘the current market value of the annual land usufruct by [United States dollars]/m2’ and, second, to have sought further evidence from the Government of Egypt confirming that the modality of the payment of the yearly rate for the usufruct right value, in accordance with the real estate valuation of 2016, was yearly payments.
80      The Commission, supported by the intervener, disputes those arguments.
81      At the outset, it must be observed that, under Article 30(1) and (2) of the basic anti-subsidy regulation, the exporters concerned may request final disclosure of the essential facts and considerations on the basis of which it is intended to recommend the imposition of definitive measures. That obligation of final disclosure is to ensure respect for the rights of the defence of the undertakings concerned (see judgment of 4 October 2006, Moser Baer India v Council, T‑300/03, EU:T:2006:289, paragraph 125 and the case-law cited).
82      Furthermore, according to settled case-law on measures to protect trade, the undertakings affected by an investigation preceding the adoption of definitive measures must be placed in a position during the administrative procedure in which they can effectively make known their views on the correctness and relevance of the facts and circumstances alleged (see judgment of 4 October 2006, Moser Baer India v Council, T‑300/03, EU:T:2006:289, paragraph 126 and the case-law cited).
83      However, it should be made clear that the right to be heard extends to all the factual and legal material which forms the basis of the decision-making act, but not to the final position which the authority intends to adopt. Thus, that right does not require that, before taking a final position on the assessment of the evidence submitted by a party, the administration must offer that party a further opportunity to comment on that evidence (see, by analogy, judgment of 14 July 2021, Interpipe Niko Tube and Interpipe Nizhnedneprovsky Tube Rolling Plant v Commission, T‑716/19, EU:T:2021:457, paragraph 211 and the case-law cited).
84      Lastly, the existence of an irregularity in the respect of those rights can lead to the annulment of a regulation establishing a countervailing duty only to the extent that there is a possibility that, as a result of that irregularity, the administrative procedure might have resulted in a different result, thereby materially affecting the rights of defence of the party concerned. However, that party cannot be required to demonstrate that the Commission’s decision would have been different, but simply that such a possibility cannot be totally ruled out, since that party would have been better able to defend itself if there had been no procedural error complained of (see, by analogy, judgment of 14 July 2021, Interpipe Niko Tube and Interpipe Nizhnedneprovsky Tube Rolling Plant v Commission, T‑716/19, EU:T:2021:457, paragraph 210 and the case-law cited). On the other hand, it is for the party concerned to establish specifically how it would have been better able to ensure its defence in the absence of that procedural irregularity, without merely pleading that it was impossible for it to provide comments on hypothetical situations (see, to that effect, judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑300/16, EU:T:2019:235, paragraph 79).
85      It is in the light of those considerations that this part of the plea must be examined.
86      First of all, it should be borne in mind that, in recital 278 of the contested implementing regulation, the Commission explains that, following the final disclosure, it received comments from the applicant alleging several errors which it purportedly made in determining the benchmark for the sale of land. The applicant argued inter alia that the full value of the usufruct right over a plot of land is not the yearly rental price of the usufruct multiplied by the total duration of the usufruct, but the yearly rental price of the usufruct divided by the average return on investment. This is so because the initial yearly amount of the usufruct will lose value each year due to inflation. As a result, the Commission was required to divide the yearly price per square metre in United States dollars (USD) by the average profit to be expected by Egypt TEDA for the land.
87      It is in that context that the Commission explains, in recital 281 of the contested implementing regulation, that, as regards that argument, it deemed that the value of a usufruct is normally determined as a percentage of the market value of the underlying asset (namely the value of the full ownership) depending on the duration of the usufruct, that is to say the longer the usufruct, the closer the value of the usufruct will be to the value of full ownership. Since full ownership of land is by definition indefinite in time, by multiplying the yearly usufruct rate by 50 years, the resulting benchmark would therefore always be below the actual value of the full ownership. In addition, the Commission noted that in the concrete example of the usufruct contract signed by Egypt TEDA in 2016, the full amount of the usufruct had to be paid as a lump sum at the start date of the usufruct right. As there were no yearly rentals as such in practice, the argument put forward is ineffective.
88      In that regard, first, it should be noted that, already at the final disclosure stage, the Commission had explained to the applicant the reasons why it had considered that the total purchase value of undeveloped land for the developer could be calculated by multiplying the average yearly value of the land usufruct in the SCZone by the duration of the land usufruct contract signed with Egypt TEDA for the expansion zone of 6 km2 of the SETC-Zone. It must be stated that recital 234 of the final disclosure document was drafted in the same way as recital 274 of the contested implementing regulation. The applicant does not dispute that it was able effectively to make known its views on the correctness and relevance of the evidence and circumstances alleged in that disclosure.
89      Second, in so far as the Commission’s explanation in recital 281 of the contested implementing regulation constitutes the Commission’s response to a complaint raised by the applicant in the context of the final disclosure and, therefore, evidence supporting the final position which it intended to adopt, it cannot be alleged, on the basis of the case-law cited in paragraph 83 above, that the Commission infringed the applicant’s rights of defence by not disclosing that evidence during the administrative phase.
90      Third, the applicant cannot reasonably claim that it could have requested additional information from the Government of Egypt, or that it could have put forward the same arguments before the Commission as those which it raised before the Court in the context of the second part of this plea if it had known in advance the Commission’s reasoning set out in recital 281 of the contested implementing regulation.
91      On the one hand, as the Commission clearly stated in recitals 266 and 274 of the contested implementing regulation, the Government of Egypt did not provide it with either statistics on land prices applicable in the SCZone or the tender procedures relating to the purchase transactions by the developers. In addition, even following the adoption of the contested implementing regulation and in the present court proceedings, the applicant was not able to submit the alleged information referred to in paragraph 79 above allegedly available to the Government of Egypt. On the other hand, it must be noted that, as is apparent from paragraph 123 below, all the arguments put forward by the applicant in the context of the second part of this plea must be rejected.
92      Thus, it has not been shown that, if the applicant had been able, during the administrative procedure, to submit the additional evidence or arguments referred to in paragraph 91 above, the Commission might have reached a different conclusion.
93      In the light of the foregoing, the first part of the second plea must be rejected.
2.      The second part of the second plea, alleging infringement of Article 3(2), Article 5 and Article 6(d) of the basic anti-subsidy regulation
94      According to the applicant, the Commission committed a manifest error of assessment in establishing the benchmark for the calculation of the amount of the benefit with regard to the provision of land. It puts forward three complaints in support of the present part of the plea.
(a)    The first complaint, alleging the use of the wrong formula to calculate the full value of the usufruct right
95      The applicant claims that the Commission applied the wrong formula to calculate the full value of the usufruct right, since it compared the price of the plots of land purchased by the applicant in full ownership with the yearly value of a usufruct right multiplied by the number of years of that usufruct right. However, that benchmark does not reflect the characteristics of the sale of the plots of land to the applicant because the value in full ownership of a yearly usufruct right over a plot of land is not equal to the yearly rental value of that plot multiplied by the number of years of the usufruct right. In so far as a yearly payment of a rent under a usufruct contract can be simplified as a ‘perpetuity’, that is, a constant stream of identical cash flows with no end, the Commission should have used the discounted cash flow method for its calculation. The formula for that calculation is as follows:
‘PV’ = present value; ‘C’ = cash flow; ‘r’ = discount rate.
96      In the applicant’s submission, the formula used by the Commission fails to take into account the fact that, because of the time value of money, each payment is only a fraction of the last.
97      In addition, the fact that, in the example of the contract signed by Egypt TEDA in 2016 on the expansion by 6 km2 of the SETC-Zone, the full amount of the usufruct was paid as a lump sum is irrelevant, as that contract set the price at a fixed rate for 50 years, and not as a yearly rent and, in any event, the usufruct in question was not to be paid as a lump sum, but in several instalments.
98      Lastly, the Commission incorrectly relied on the real estate valuation of 2016 in order to establish the benchmark, since that valuation provides current prices for the market value of the annual land usufruct, and not prices to be paid as a lump sum. Furthermore, the negotiations for Egypt TEDA’s purchase of the usufruct right in question took place before the change to the land ownership law, and the real estate valuation of 2016 marked the beginning of a new practice for setting the price of usufruct rights in the SCZone by the Government of Egypt. Consequently, the Commission should have calculated the benchmark by using a formula which takes into account the payment terms set out in that valuation, namely yearly instalments, and cannot simply multiply the yearly annual land usufruct value by the estimated number of years of the usufruct right.
99      Moreover, the applicant argues that if the Commission had any doubts in that regard, it should have requested further information from the Government of Egypt, particularly in view of its obligation to conduct its investigation diligently. The Commission, however, failed to do so and even impeded the Government of Egypt from providing such information by not disclosing its reasoning prior to the adoption of the contested implementing regulation.
100    The Commission, supported by the intervener, disputes those arguments.
101    It should be noted, as a preliminary point, that the Commission stated, in recital 274 of the contested implementing regulation, that the Government of Egypt was not able to provide any information or statistics on purchase prices for land in the SCZone and that it only provided information on transactions regarding land usufruct, namely the 2016 property valuation and an example of a land usufruct contract that Egypt TEDA entered into with the Main Development Company (‘MDC’), an Egyptian real estate developer, in 2016. As regards MDC in particular, the Commission explained, in recital 252 of the contested implementing regulation, that since 2015 it was no longer possible to purchase the full ownership of land from the General Authority of the SCZone, since that authority only provided usufruct rights of the land to that developer, which then put the usufruct of the land up for bidding to sub-developers – such as Egypt TEDA – which ultimately rented out the land to the undertakings located in the zone. As is apparent from Article 5 of the usufruct contract signed by Egypt TEDA and MDC, the usufruct fees were set at a fixed rate for the duration of the usufruct and the payment of the fee was staggered over several instalments to be made according to a precise schedule.
102    It is therefore in the light of those factors that the Commission compared, on the one hand, the value of the plots of land in full ownership purchased by the applicant with, on the other hand, the average yearly value of the land usufruct in the SCZone multiplied by the duration of the land usufruct contract signed between MDC and Egypt TEDA for the expansion zone of 6 km2, in order to ascertain whether the applicant had received a benefit as regards the provision of land for less than adequate remuneration.
103    In that regard, first, it should be noted that the applicant does not call into question the Commission’s findings referred to in paragraph 101 above, in particular the lack of information concerning the purchase price of land in full ownership in the SCZone. At most, the applicant claims that the Commission could have obtained relevant information at a later stage from the Government of Egypt concerning the real estate valuation of 2016.
104    That argument must, however, be rejected, in so far as, as has been noted in paragraph 91 above in the context of the analysis of the first part of the present plea, the applicant was unable to present or even explain the alleged information that the Government of Egypt could have provided concerning the real estate valuation of 2016.
105    Second, in so far as the applicant criticises the Commission for not having used the discounted cash flow calculation method, which the applicant claims is more appropriate than that proposed by that institution, it must be held, first of all, that it is not apparent from the file lodged before the Court that the Government of Egypt has ever used that method to calculate usufruct rights in the SCZone. In that regard, the applicant also stated at the hearing that, since the change to the land ownership law, those public authorities have not yet sold usufruct rights on the basis of the real estate valuation of 2016, with the result that it was unable to confirm whether the discounted cash flow calculation method was applied in other usufruct contracts in the SCZone. Next, it must be stated that the real estate valuation of 2016 does not refer to the method proposed by the applicant. Lastly, the usufruct contract signed by Egypt TEDA and MDC, the only example of a usufruct contract in the SCZone available to the Commission for the purposes of comparison, did not in any way mention that the usufruct fees were calculated according to the discounted cash flow method. On the contrary, as is apparent from paragraph 101 above, that contract stated, in Article 5, that those fees were set at a fixed rate for the duration of the usufruct.
106    Consequently, since, first, the Commission had very limited information from the Government of Egypt, second, this information did not show that the calculation of the value of the usufruct rights was based in the SCZone on the discounted cash flow method, third, in the only example of a usufruct contract signed between two developers in the SCZone, the usufruct fees were set at a fixed rate and, fourth, the usufruct rates in the SCZone had been set by the Government of Egypt itself in the real estate valuation of 2016, it cannot be alleged that the Commission made a manifest error of assessment in calculating the benchmark by multiplying a usufruct rate set out in the real estate valuation of 2016 by 50, as was the case in the usufruct contract signed between Egypt TEDA and MCD.
107    Consequently, the first complaint must be rejected.
(b)    The second complaint, alleging the addition of excessive investment costs
108    The applicant disputes the fact that, having established the benchmark price per square metre for the purchase of a plot of undeveloped land, the Commission took into account Egypt TEDA’s foreseen investment cost for the expansion zone, which was estimated to stand at USD 230 million, and divided that investment by the area of that zone. According to the applicant, that cost was excessive and artificially inflated the benchmark used in the Commission’s analysis. Indeed, the applicant purchased undeveloped land, without residential buildings on it, on which it built its factory. Yet Egypt TEDA’s investment amount in question related to the construction of an entire industrial zone including buildings. Furthermore, the Commission cannot reasonably contend that it could not find publicly available information on a more detailed breakdown of the costs when it failed to ask the interested parties for that information before the adoption of the contested implementing regulation.
109    The Commission, supported by the intervener, disputes those arguments.
110    It should be noted at the outset that the Commission explained, in recital 275 of the contested implementing regulation, that, in order to take into account the cost for the developer of developing the land, Egypt TEDA’s investment cost per square metre was then calculated based on public information. According to this information, an investment of USD 230 million was planned for the expansion zone of 6 km². A profit margin for the developer was also added.
111    However, as is apparent from recital 278 of the contested implementing regulation, in the final disclosure, the applicant claimed that the investment cost of USD 230 million announced by Egypt TEDA included not only the price of the usufruct of the land but also investment for building residential areas, service areas and factories, whereas the plots purchased by the applicant did not include any development of that type, as the applicant purchased the land undeveloped.
112    In response to that argument, the Commission stated, in recital 282 of the contested implementing regulation, that the applicant had indeed purchased land without buildings on it. However, this land already had all necessary utilities: roads, sewage treatment, public lighting, security, and other service facilities provided by Egypt TEDA. Such improvements are likely to affect the value of land.
113    In that regard, it should be noted that the Commission had no information concerning the costs of developing an undeveloped plot of land by a developer, although it had put questions to both the Government of Egypt and Egypt TEDA in that regard. The only information available to it was obtained from websites. However, that information was essential in the calculation of the benchmark and was intended to provide an estimate of that value which is as close as possible to the conditions under which the applicant purchased its land.
114    Admittedly, it should be noted, as the applicant has done, that the information mentioned in paragraph 110 above does not precisely reflect the conditions under which the applicant purchased its land, since it is common ground that that land did not have buildings on it, whereas Egypt TEDA’s investment in the expansion zone also envisaged the construction of buildings. However, as was pointed out by the Commission in recital 282 of the contested implementing regulation without being challenged by the applicant, the land which the applicant purchased from Egypt TEDA had all necessary utilities, such as roads, sewage treatment, public lighting, security, and other service facilities provided by Egypt TEDA. In addition, the Commission divided the total investment cost by the total area of the expansion zone, namely 6 km², with the result that, by using the widest possible denominator, it endeavoured to ensure that the investment cost would not be applied to the applicant disproportionately. Lastly, although the applicant complains that the Commission failed to request the interested parties to provide a more detailed breakdown of the development costs in the SCZone, it should be noted that, in the comments on the final disclosure or in the pleadings before the Court, the applicant does not submit any additional information concerning those costs which it or the Government of Egypt could have provided.
115    Accordingly, the second complaint must be rejected as unfounded.
(c)    The third complaint, alleging incorrect adjustment of the purchase price in relation to the 2011 plot of land, as a result of the application of an incorrect United States dollar/Egyptian Pound exchange rate
116    The applicant takes issue with the Commission for the fact that, as regards the land purchase of 2011, it adjusted the benchmark obtained on the basis of the usufruct yearly market value in 2016 based on the difference between Egypt’s 2016 GDP and its 2011 GDP.
117    According to the applicant, the Commission should have converted that benchmark using the exchange rate at the time of the sale in 2011, since the USD to Egyptian Pound exchange rate in 2016 was substantially higher than that in 2011 owing to the devaluation of the Egyptian Pound (EGP). Furthermore, Gross Domestic Product (GDP) fluctuations are not the same as fluctuations in the valuation of a currency, and converting values in foreign currencies by using the exchange rate at the time of the relevant transaction is in line with the Commission’s practice. The applicant refers in particular to recital 283 of the contested implementing regulation in Case T‑480/20 and to recital 92 of Commission Implementing Regulation (EU) 2017/141 of 26 January 2017 imposing definitive anti-dumping duties on imports of certain stainless steel tube and pipe butt-welding fittings, whether or not finished, originating in the People’s Republic of China and Taiwan (OJ 2017 L 22, p. 14).
118    The Commission, supported by the intervener, disputes those arguments.
119    First of all, it should be recalled that the Commission explained, in recital 276 of the contested implementing regulation, that, for the plot of land bought in 2011, the 2016 purchase price was corrected for inflation and GDP evolution. The adjustment was calculated on the basis of inflation rates and evolution of GDP per capita at current prices in USD for Egypt as published by the International Monetary Fund (IMF) for 2016. In response to the argument put forward by the applicant in its comments on the final disclosure (see recital 278 of the contested implementing regulation), according to which the Commission should have used the exchange rate applicable at the time of sales to convert the benchmark in USD into Egyptian Pounds, the Commission explained, in recital 283 of the contested implementing regulation, that inflation caused by the devaluation of the Egyptian Pound in 2016 compared to the USD had already been factored into the GDP adjustment and that further adjustments for the exchange rate changes would result in double counting.
120    In the first place, it should be noted that, while it is true that the Commission took the 2016 USD/EGP exchange rate into consideration for the benchmark obtained on the basis of the usufruct yearly market value in 2016, it nevertheless adjusted that rate to take account of inflation rates and evolution of GDP per capita at current prices in USD for Egypt, as published by the IMF for 2016.
121    By merely submitting that the applicable exchange rate should have been the 2011 exchange rate, since that of 2016 was distorted by the devaluation of the Egyptian Pound, the applicant has failed to explain why the adjustment proposed by the Commission for the USD/EGP exchange rate of 2016, relying in particular on inflation rates and on the evolution of GDP per capita at current USD prices for Egypt, as published by the IMF for 2016, would not take sufficient account of that devaluation.
122    In the second place, as regards the argument that the method suggested by the applicant corresponds to the Commission’s practice, it should be recalled, as regards the reference to Implementing Regulation 2017/141, that the lawfulness of a regulation imposing countervailing duties must be assessed in the light of legal rules and, in particular, the provisions of the basic anti-subsidy regulation, not on the basis of the Commission’s alleged previous practice in taking decisions (see, by analogy, judgment of 18 October 2016, Crown Equipment (Suzhou) and Crown Gabelstapler v Council, T‑351/13, not published, EU:T:2016:616, paragraph 107).
123    In addition, in so far as the applicant refers, in the context of that argument, to the method applied by the Commission in recital 283 of Implementing Regulation (EU) 2020/776 of 12 June 2020 imposing definitive countervailing duties on imports of certain woven and/or stitched glass fibre fabrics originating in the People's Republic of China and Egypt and amending Commission Implementing Regulation (EU) 2020/492 imposing definitive anti-dumping duties on imports of certain woven and/or stitched glass fibre fabrics originating in the People's Republic of China and Egypt (OJ 2020 L 189, p. 1), it should be noted that that recital concerns access to the Chinese credit rating market and not capital increase in foreign currency, such that that reference is irrelevant. In addition, assuming that the applicant is referring, in reality, to the method applied by the Commission in recital 802 of Implementing Regulation 2020/776, consisting in adapting the exchange rate for the provision of capital in order to take account of the devaluation of the Egyptian Pound, it is sufficient to note that, unlike in relation to the provision of land for less than adequate remuneration where it had to adjust the exchange rate of a purchase made five years previously, the Commission was able to follow the method used by the applicant in its financial statements.
124    Consequently, the third complaint and the second part of the second plea in law must be rejected, as must the second plea in law in its entirety.
C.      The third plea, alleging infringement of Article 3(1)(a)(ii) and (2) and Article 5 of the basic anti-subsidy regulation
125    The applicant submits that the Commission was wrong to find that the Government of Egypt had foregone revenue for imported materials used by the applicant to produce the GFR sold to Hengshi and that this revenue foregone had conferred a benefit on the applicant, in so far as the applicant would not in any event have had to pay customs duties on those materials regardless of whether it fell under the legal regime of the SCZone or under the generally applicable Egyptian law.
126    As regards the duty drawback system, the Commission is required to follow a three-step test in order to assess the difference between customs duties which should have been paid under domestic law and those which were actually paid under the duty drawback scheme. In the present case, the tax situation with which it is legitimate to compare for the determination of the benchmark must thus be that of company in Egypt which is not located within the SCZone, so that no duty drawback is applicable thereto, and not, as the Commission contends, that of two entities located within the SCZone. Thus, even if the applicant had been subject to the generally applicable law in Egypt, no customs duties would be incurred by Jushi for its sales to Hengshi since, for undertakings located outside the SCZone, sales to that zone are treated as export sales and, as a result, the customs duties incurred are subsequently reimbursed.
127    Moreover, the Government of Egypt is free to set up a waiver of customs duties or to create economic zones which do not follow the general legal framework applied to companies in Egypt. Furthermore, in the present case, even if the Government of Egypt had put in place a functioning duty drawback system, there is no difference between what that government should have collected from the applicant and what it actually collected, since in both cases no customs duties were due.
128    The Commission, supported by the intervener, disputes those arguments.
129    Article 3(1)(a)(ii) of the basic anti-subsidy regulation provides as follows:
‘[A subsidy shall be deemed to exist if:] government revenue that is otherwise due is for[e]gone or not collected (for example, fiscal incentives such as tax credits). In this regard, the exemption of an exported product from duties or taxes borne by the like product when destined for domestic consumption, or the remission of such duties or taxes in amounts not in excess of those which have been accrued, shall not be deemed to be a subsidy, provided that such an exemption is granted in accordance with the provisions of Annexes I, II and III.’
130    As is apparent from Part II of Annex III to that regulation, in order to determine whether an excess payment has occurred, the Commission is to verify that the monitoring and verification procedures accompanying that payment exist and are actually applied. If not, it may find that there is a subsidy.
131    In order to determine government revenue otherwise due that has been foregone or that has not been collected, the WTO Appellate Body considered, in paragraph 812 of the report in the case ‘United States – Measures Affecting Trade in Large Civil Aircraft (second complaint)’ (WT/DS 353/AB/R), that the identification of circumstances in which government revenue that is otherwise due is foregone requires a comparison between the tax treatment that applies to the alleged subsidy recipients and the tax treatment of comparable income of comparably situated taxpayers.
132    The parties essentially argue about what the comparable situation is in this case. According to the applicant, the situation concerned is that of an undertaking established outside the SCZone which sells products composed of imported materials to an undertaking in the SCZone, such as Hengshi. According to the Commission, the situation concerned is, by contrast, that of an undertaking established in the SCZone, such as the applicant, which sells such products to an undertaking established outside the SCZone.
133    As is apparent from recitals 71, 78 and 81 of the provisional implementing regulation, according to Article 42 of Law No 83/2002, supplies, spare parts, and any other material or components imported from overseas are to be exempt from taxes and duties as long as they are allocated to the production of goods or services for the licensed activity within the SCZone. On the other hand, all taxes and duties need to be paid for any products released into the domestic market outside of the SCZone. The Commission also found that there was no effective and proper duty drawback system in place and that the special zone in which the applicant was located was not a standard export-processing zone, and was also different from other special free zones existing within Egypt. According to the Commission, it was a unique and hybrid kind of special zone in which the applicable laws and regulations did not appear to be applied.
134    In the present case, the applicant enjoyed the exemption from customs duties provided for by Law No 83/2002 in respect of imported materials used for the production of GFR sold to Hengshi, which is established in the SCZone and sells its GFF for export. However, under that law, if GFR had been marketed on the domestic market instead of being used or exported from the SCZone, the applicant would have had to pay the corresponding customs duties. That is particularly so in the case of an undertaking located in the SCZone which sells products containing imported materials that have benefited from exemption from customs duties to another undertaking outside the SETC-Zone, on the domestic market.
135    It follows that the only comparable situation for the purpose of determining whether the applicant received a benefit is precisely that taken into consideration by the Commission, that is to say, that of an undertaking established, like the applicant, in the SCZone which sells products containing such materials that have benefited from an exemption from customs duties to an undertaking established outside the SCZone.
136    The Commission was therefore right to find, in the light of that comparison, that the Government of Egypt had foregone revenue on imports of materials used by the applicant for the production of GFR sold to Hengshi.
137    Furthermore, as was noted in paragraph 133 above, the Commission also found in the contested implementing regulation that the Government of Egypt did not, either before or during the investigation period, have an effective monitoring and verification framework for the collection of customs duties in the SCZone. In that regard, the applicant merely claims that that system had been set up at the end of 2016 and that the Egyptian authorities had several years to establish it. However, as the Commission rightly pointed out at the hearing and as is indeed apparent from the basic anti-subsidy regulation, and in particular from Annex III, the Commission must examine the existence and effectiveness of the drawback scheme at the time that it carries out its anti-subsidy investigation.
138    Having regard to the foregoing, the third plea must be rejected.
D.      The fourth plea, alleging infringement of Article 3(2) and Article 4(2)(c) of the basic anti-subsidy regulation
139    The applicant claims that the Commission committed a manifest error of assessment in concluding that the tax treatment of foreign exchange losses resulting from the devaluation of the Egyptian Pound in 2016 constituted a specific subsidy which de facto created a substantial benefit for a limited number of undertakings in Egypt, namely companies that were export-oriented and operated their business almost entirely in foreign currencies, such as USD or EUR.
140    Both companies which are export-oriented and companies which operate solely on the Egyptian market could benefit equally from the tax treatment concerned, and deduct from their taxable income losses caused by the effects of the Egyptian Pound devaluation, in so far as they have liabilities in foreign currencies. By stating that companies which are export oriented benefited disproportionately from that tax treatment, the Commission in fact considered that the benefit resulted from the Egyptian Pound devaluation, which is, however, by definition, not a countervailable subsidy scheme.
141    The Commission, supported by the intervener, disputes those arguments.
142    It should be noted, as a preliminary point, that the applicant’s arguments are based essentially on the fact that, first, that measure cannot be regarded as a subsidy since that benefit in fact derives from the devaluation of the Egyptian Pound and, second, that measure does not confer a de facto specific benefit on certain undertakings, since all Egyptian undertakings which have liabilities in foreign currencies may benefit from the tax treatment of foreign exchange losses.
143    As regards the first argument, it should be noted that the Commission did not consider that the tax treatment in itself constituted a subsidy capable of being the subject of a countervailing measure. On the contrary, it stated, as is apparent from recital 288 of the contested implementing regulation and from recital 96 of the provisional implementing regulation, that, although that rule was meant to offset the negative effects of the devaluation of the Egyptian currency, it de facto created a substantial benefit for a limited number of companies in Egypt, that is to say for companies that were export oriented and operated their business almost entirely in foreign currencies, in so far as this particular category of companies did not incur any actual loss as a consequence of the devaluation of the Egyptian Pound but could benefit from the special accounting standard issued by the Government of Egypt for tax purposes.
144    As regards the second argument, the applicant merely submits, in general terms, that the tax treatment in question benefited all undertakings with liabilities in foreign currencies and not only those which are export-oriented, without adducing any evidence that might render implausible the factual assessments made by the Commission in the contested implementing regulation, in particular in recital 97 of the provisional implementing regulation, and in the pleadings lodged in the present proceedings. The applicant does not call into question the figures presented by the Commission in its written pleadings, which show to what extent it was able to benefit from the tax treatment in question and the applicant does not explain whether that treatment actually enabled it to make good any actual losses caused by the devaluation of the Egyptian Pound. More specifically, the Commission noted, in the context of its investigation, that the net profit declared in the applicant’s audited financial statements showed a positive amount [confidential], (2) whereas its tax return indicated a negative net taxable amount [confidential].
145    Moreover, the applicant does not dispute the Commission’s finding in recital 98 of the provisional implementing regulation that, although that measure was temporary and limited only to transactions affected at the time of the devaluation, the applicant still deducted, during the investigation period, substantial amounts from its taxable income under realised and unrealised foreign exchange differences.
146    In the light of the foregoing, the fourth plea in law must be rejected.
E.      The fifth plea, alleging infringement of Article 1(1), Article 2(d) and Article 8(1), (2) and (5) of the basic anti-subsidy regulation
147    This plea is divided into three parts. The applicant submits, in essence, first, that, by determining its export prices, in particular of its related companies in the European Union, in order to calculate the undercutting margin on the basis of Article 2(9) of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21; ‘the basic anti-dumping regulation’), applied by analogy, the Commission infringed Article 2(d) of the basic anti-subsidy regulation. Second, by relying on that reconstructed export price to determine the undercutting margin, the Commission committed a manifest error of assessment infringing Article 1(1), Article 2(d) and Article 8(1) and (2) of the basic anti-subsidy regulation. Third, the Commission’s manifest error of assessment in its undercutting margin determination vitiates its causation analysis by an infringement of Article 1(1) and Article 8(5) of the basic anti-subsidy regulation.
148    The Commission, supported by the intervener, disputes not only the merits of this plea, but also contends, as a preliminary point, that the plea is ineffective.
149    In that latter regard, the Commission maintains that, even if the General Court were to find that the Commission had erred in using, by analogy, Article 2(9) of the basic anti-dumping regulation for the calculation of the applicant’s price undercutting, in particular for the applicant’s related companies in the European Union, such an error would not be capable of leading to the annulment of the contested implementing regulation. It explains, in that regard, that it provided the applicant with the result of the undercutting calculations using the actual export prices with no adjustment pursuant to Article 2(9) of the basic anti-dumping regulation. The result was an undercutting margin of 14.89% (as opposed to the undercutting margin of 16.03% calculated at the provisional stage). Those calculations are set out in footnote 96 of the contested implementing regulation. The Commission also stated that the difference between the prices determined using the actual reported export prices and the adjusted ones was [confidential]
% in terms of export value.
150    When questioned by the Court at the hearing on those alternative calculations, the applicant stated that those calculations had no impact on the level of the countervailing duties imposed by the contested implementing regulation.
151    According to settled case-law, the Courts of the European Union may dismiss a plea or complaint as ineffective where they find that that plea or complaint is not capable, in the event that it is well founded, of leading to the annulment sought (judgments of 21 September 2000, EFMA v Council, C‑46/98 P, EU:C:2000:474, paragraph 38, and of 19 November 2009, Michail v Commission, T‑50/08 P, EU:T:2009:457, paragraph 59).
152    In the present case, the applicant has admitted, as is apparent from paragraph 150 above, that, even if the Commission had used, in order to determine the price undercutting margin, the calculations referred to in paragraph 149 above, which are based on its export price without the adjustments made on the basis of Article 2(9) of the basic anti-dumping regulation, there would be no impact on the level of countervailing duties imposed by the contested implementing regulation.
153    It follows that, even if the applicant were justified in challenging the method used by the Commission to establish the applicant’s export price in the context of calculating the price undercutting margin, the use of the calculations referred to in paragraph 149 above would not, in any event, have led to different countervailing duties. The alleged error cannot therefore justify annulment of the contested implementing regulation in so far as it concerns the applicant.
154    Consequently, the fifth plea in law must be rejected as ineffective, without there being any need to analyse the merits of the three parts raised by the applicant in support of that plea.
155    In the light of the foregoing, the action must be dismissed in its entirety.
Costs
156    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.
157    Pursuant to Article 138(3) of the Rules of Procedure, the Association des producteurs de fibres de verre européens (APFE) is to bear its own costs.
On those grounds,
THE GENERAL COURT (First Chamber, Extended Composition)
hereby:
1.      Dismisses the action;
2.      Orders Jushi Egypt for Fiberglass Industry SAE to bear its own costs and to pay those incurred by the European Commission;
3.      Orders the Association des producteurs de fibres de verre européens (APFE) to bear its own costs.
Kanninen
Jaeger
Półtorak
Porchia
Stancu
Delivered in open court in Luxembourg on 1 March 2023.
E. Coulon
S. Papasavvas
Registrar
President
*      Language of the case: English.
1      This judgment is published in extract form.
2Confidential data omitted.