JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
15 November 2018 (*)
(Dumping — Imports of ferro-silicon originating in Russia — Rejection of applications for a refund of anti-dumping duties paid — Determination of the normal value and the export price — Single economic entity — Reflection of the anti-dumping duty in resale prices in the European Union — Application of a methodology different from that used in an earlier investigation — Article 2(9) and Article 11(9) and (10) of Regulation (EC) No 1225/2009 (now Article 2(9) and Article 11(9) and (10) of Regulation (EU) 2016/1036) — Article 18.3.1 of the WTO anti-dumping agreement)
In Case T‑113/15,
RFA International, LP, established in Calgary (Canada), represented by B. Evtimov and M. Krestiyanova, lawyers,
applicant,
v
European Commission, represented by J.-F. Brakeland and A. Stobiecka-Kuik, acting as Agents,
defendant,
APPLICATION under Article 263 TFEU for annulment in whole or in part of Commission Implementing Decisions C(2014) 9805 final, C(2014) 9806 final, C(2014) 9807 final, C(2014) 9808 final, C(2014) 9811 final, C(2014) 9812 final and C(2014) 9816 final of 18 December 2014 concerning applications for refund of anti-dumping duties paid on imports of ferro-silicon originating in Russia,
THE GENERAL COURT (Ninth Chamber),
composed of S. Gervasoni, President, L. Madise (Rapporteur) and R. da Silva Passos, Judges,
Registrar: C. Heeren, Administrator,
having regard to the written part of the procedure and further to the hearing on 11 January 2018,
gives the following
Judgment
Background to the dispute
1        The applicant, RFA International, LP, is a company linked with Chelyabinsk electrometallurgical integrated plant OAO (CHEMK) and with Kuzneckie Ferrosplavy OAO (KF), both established in Russia, which are active in the production of ferro-silicon, an alloy used in the manufacture of steel and iron. The applicant has a branch in Switzerland, which is responsible for CHEMK’s and KF’s export sales, particularly in the European Union.
2        On 25 February 2008, following examination of a complaint lodged by the Comité de liaison des industries de ferroalliages (Liaison committee of the ferro-alloy industry) (Euroalliages), which is an association of European ferroalloy producers, the Council of the European Union adopted Regulation (EC) No 172/2008, imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ferro-silicon originating in the People’s Republic of China, Egypt, Kazakhstan, the former Yugoslav Republic of Macedonia and Russia (OJ 2008 L 55, p. 6, ‘the initial regulation’). Pursuant to Article 1 of the initial regulation, the definitive anti-dumping duty applicable to the net, free-at-Union-frontier price, before duty, was set at 22.7% for the products manufactured by CHEMK and KF. CHEMK and KF brought an action before the Court for annulment in part of the initial regulation, in so far as it concerned them (Case T‑190/08).
3        On 30 November 2009, CHEMK and KF submitted an application for a partial interim review, concerning only dumping, pursuant to Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51, corrigendum OJ 2010 L 7, p. 22, ‘the basic regulation’) (replaced by 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), and more specifically pursuant to Article 11(3) of the basic regulation (now Article 11(3) of Regulation 2016/1036). In their application, CHEMK and KF claimed that the circumstances on the basis of which the initial regulation had been adopted had changed and that the changes in question were of a lasting nature.
4        Furthermore, pursuant to Article 11(8) of the basic regulation (now Article 11(8) of Regulation 2016/1036), between 30 July 2009 and 10 December 2010 the applicant submitted a number of applications to the European Commission, via the customs authorities of several Member States, for reimbursement of anti-dumping duties on imports of products manufactured by CHEMK and KF. Those applications related to anti-dumping duties which the applicant had paid during the period between 7 January 2009 and 10 December 2010. The refund investigation covered the period from 1 October 2008 until 30 September 2010. For the purpose of calculating new dumping margins, the Commission divided that period into two parts, from 1 October 2008 until 30 September 2009 (‘the first refund investigation period’) and from 1 October 2009 until 30 September 2010 (‘the second refund investigation period’) respectively.
5        By judgment of 25 October 2011, CHEMK and KF v Council (T‑190/08, EU:T:2011:618), the Court dismissed the action brought by CHEMK and KF against the initial regulation. That judgment was the subject of an appeal to the Court of Justice. By judgment of 28 November 2013, CHEMK and KF v Council (C‑13/12 P, not published, EU:C:2013:780), the Court of Justice dismissed that appeal.
6        The interim review procedure was closed by the adoption of Council Implementing Regulation (EU) No 60/2012 of 16 January 2012 terminating the partial interim review pursuant to Article 11(3) of [the basic regulation] of the anti-dumping measures applicable to imports of ferro-silicon originating, inter alia, in Russia (OJ 2012 L 22, p. 1, ‘the interim regulation’). The anti-dumping measure in force was confirmed. In the assessment of the export price, the Council, in particular, examined and rejected the arguments put forward by CHEMK and KF in order to demonstrate that, together with the applicant, they formed a single economic entity (recitals 23, 24, 36 and 37 of the interim regulation). CHEMK and KF made application to the Court for annulment in part of the interim regulation in so far as it concerned them (Case T‑169/12).
7        On 10 August 2012, the Commission adopted Decisions C(2012) 5577 final, C(2012) 5585 final, C(2012) 5588 final, C(2012) 5595 final, C(2012) 5596 final, C(2012) 5598 final and C(2012) 5611 final concerning applications for a refund of anti-dumping duties paid by the applicant on imports of ferro-silicon originating in Russia (‘the first decisions on the applications for a refund’). The Commission granted the applications for a refund relating to the first refund investigation period, to the extent that they were admissible, and refused the applications for a refund relating to the second refund investigation period. The applicant made application to the Court for annulment in part of the first decisions on the applications for a refund in so far as they refused a refund of the anti-dumping duties paid, save for those amounts the applications for which had been found inadmissible because they had been submitted after the statutory time limits had expired (Case T‑466/12).
8        On 28 November 2012, following the publication of a notice of the impending expiry of the anti-dumping measures resulting from the initial regulation, Euroalliages requested the initiation of a review of those measures.
9        By a notice published in the Official Journal of the European Union on 28 February 2013 (OJ 2013 C 58, p. 15), the Commission, being of the view that sufficient evidence had been adduced for that purpose, announced the initiation of the requested review.
10      The investigation of a continuation or recurrence of dumping covered the period from 1 January to 31 December 2012 (‘the dumping investigation period corresponding to 2012’). The investigation of the likelihood of a continuation or recurrence of injury was carried out with respect to the four-year period from 1 January 2009 to 31 December 2012.
11      As regards the products imported from Russia, only CHEMK, KF, the applicant and six EU producers cooperated in the investigation. No independent importer cooperated.
12      As CHEMK and KF, on the one hand, and the applicant, on the other hand, account respectively for around 78% of Russian production of ferro-silicon and the major proportion of imports of ferro-silicon originating in Russia into the European Union, the Commission considered that it could take the information provided by those companies into account when assessing the likelihood of a continuation or recurrence of dumping for the product originating in Russia.
13      The investigation was concluded with the adoption of Commission Implementing Regulation (EU) No 360/2014 of 9 April 2014 imposing a definitive anti-dumping duty on imports of ferro-silicon originating in the People’s Republic of China and Russia, following an expiry review pursuant to Article 11(2) of [the basic regulation] (OJ 2014 L 107, p. 13, ‘the regulation adopted following the initial measures expiry review’). The Commission found, inter alia, that there was a significant risk of a continuation of dumping for imports from Russia. In particular, in order to determine the export price at the EU frontier level during the dumping investigation period corresponding to 2012, the Commission accepted that the applicant was an importer related to CHEMK and KF and that, consequently, it was necessary, in accordance with Article 2(9) of the basic regulation (now Article 2(9) of Regulation 2016/1036), to construct that price on the basis of the price of the first resale to an independent buyer after importation into the European Union, deducting all the costs incurred between importation and that resale for selling, general and administrative costs and a reasonable margin for profit. In that regard, the Commission stated that it used for those costs the actual costs and, in the absence of new information provided by independent importers, the same profit margin as that used in the investigation that led to the initial regulation, namely 6%. The Commission stated that, during the investigation period corresponding to 2012, in 99% of cases the resale price to an independent buyer in the European Union did not reflect the level of anti-dumping duties and that, in those circumstances, it was necessary to deduct them from that price in order to arrive at the constructed export price. The comparison of normal value and export price as thus constructed, which took various adjustments into account in order to make a fair comparison in accordance with Article 2(10) of the basic regulation, led the Commission to conclude that there was a dumping margin, expressed as a percentage of the free-at-Union-frontier price, before duty, of 43% for the dumping investigation period corresponding to 2012. The analysis of various factors connected with, in particular, production capacity in Russia and the attractiveness of the EU market, then led the Commission to conclude that there was a likelihood that Russian exporters would increase their exports to that market at dumped prices should the anti-dumping measures be allowed to lapse.
14      The Commission also found, after having analysed various factors, that the injury found would be reproduced should the anti-dumping measures be allowed to lapse.
15      The Commission found, lastly, that there were no compelling reasons of Union interest against the maintenance of the anti-dumping measures.
16      It therefore maintained the anti-dumping duty of 22.7% applicable to exports of CHEMK’s and KF’s products since the initial regulation entered into force.
17      CHEMK and KF brought an action before the Court seeking annulment in part of the regulation adopted following the initial measures expiry review in so far as it concerned them (Case T‑487/14).
18      Furthermore, under Article 11(8) of the basic regulation, between 1 March 2011 and 26 June 2013 the applicant, for imports of CHEMK’s and KF’s products, submitted fresh applications to the Commission via the customs authorities of several Member States for a refund of anti-dumping duties. Those applications concerned the anti-dumping duties which the applicant had paid between 1 October 2010 and 28 December 2012. The refund investigation covered the period from 1 October 2010 to 31 December 2012. In order to calculate new dumping margins, the Commission divided that period into two parts, from 1 October 2010 to 31 December 2011 (‘the third refund investigation period’) and from 1 January 2012 to 31 December 2012 (‘the fourth refund investigation period’) respectively. The fourth refund investigation period is the same as the dumping investigation period corresponding to 2012 used for the regulation adopted following the initial measures expiry review.
19      On 18 December 2014, the Commission adopted Implementing Decisions C(2014) 9805 final, C(2014) 9806 final, C(2014) 9807 final, C(2014) 9808 final, C(2014) 9811 final, C(2014) 9812 final and C(2014) 9816 final, refusing the new applications for a refund of the anti-dumping duties paid by the applicant on imports of ferro-silicon originating in Russia (together ‘the contested decisions’).
20      In the seven contested decisions, which are identical as regards their substantive reasoning, apart from the fact that certain applications for a refund were rejected as inadmissible on the ground that they were submitted out of time, the Commission set out the following explanations.
21      After observing that the applicant maintained that, for the periods concerned, the dumping margin had been eliminated or reduced below the level of the anti-dumping duty of 22.7% in force, the Commission stated that the applicant was related to CHEMK and KF, and also to AM General LLC (AMG), a company based in the United States, responsible for the administrative aspects of the applicant’s activities.
22      The Commission rejected the applicant’s argument, expressed during the administrative phase, that the Commission could not change the methodology used to calculate the dumping margin that had been applied for the initial regulation and for the first decisions on the applications for a refund without infringing Article 11(9) of the basic regulation (now Article 11(9) of Regulation 2016/1036) and Article 18.3.1 of the Agreement on implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (GATT) (OJ 1994 L 336, p. 103, ‘the anti-dumping agreement’), included in Annex 1A of the Agreement establishing the World Trade Organisation (WTO) (OJ 1994 L 336, p. 3). While considering primarily that it had not changed its methodology, the Commission observed that the circumstances had significantly changed since the period covered by the investigation that led to the initial regulation, namely 1 October 2005 until 30 September 2006, and mentioned in particular that CHEMK’s and KF’s production costs had increased by around 100%. It also stated that Article 18.3.1 of the anti-dumping agreement was a transitional provision related to the entry into force of that agreement which was no longer relevant.
23      As regards the determination of the normal value of CHEMK’s and KF’s sales in Russia, which, when compared with their export prices, should allow the level of any dumping on their part during the third and fourth refund investigation periods to be measured, the Commission stated that it was adjusted to the ‘ex works’ level. In accordance with the principle set out in Article 2(2) of the basic regulation (now Article 2(2) of Regulation 2016/1036), for the types of products comparable with those exported to the European Union, and sales of which to independent buyers in Russia represented at least 5% of sales to independent buyers in the European Union (sales said to be representative), the Commission used as a basis the actual values of sales and established their weighted average after ascertaining that the other relevant conditions in Article 2 were satisfied. On the other hand, for the types of products comparable to those exported to the European Union, and sales of which to independent buyers in Russia did not reach 5% of sales to independent buyers in the European Union (sales said to be non-representative), the Commission calculated a constructed normal value, as provided for in Article 2(3) of the basic regulation (now Article 2(3) of Regulation 2016/1036). In order to do so, it added to the cost of production, adjusted where necessary to take account of intragroup sales of raw materials, the selling, general and administrative costs and the profit margin at their actual levels observed in the ordinary course of trade. The normal level of those costs and that margin for CHEMK’s and KF’s sales in Russia of the types of products concerned was used. The Commission also calculated weighted averages of the results for the two refund investigation periods. It stated that an alternative methodology proposed by the applicant would have resulted in a decrease of only 1% in the dumping margin during the third refund investigation period and of 0.1% during the fourth period.
24      As regards the determination of the export price, the Commission stated that the price should ultimately be adjusted to the ‘ex works’ level in order to permit an appropriate comparison with normal value. It noted that the applicant was an undertaking related to CHEMK and KF and that, consequently, in application of Article 2(9) of the basic regulation, in order to obtain a reliable export price, it was necessary to construct that price on the basis of the price of the first resale to an independent buyer in the European Union. The Commission observed that in this case that was mainly a ‘delivered duty paid’ price, that is to say, all costs borne by the seller on arrival at the place of delivery (as the applicant had charged such a price in 79% of cases during the third refund investigation period and in 89% of cases during the fourth such period). The Commission also noted that the export price was the price at the EU frontier, normally corresponding to the ‘cost insurance and freight’ (CIF) price, that is to say, all costs incurred before arrival at the frontier are included in the price. As in the context of the regulation adopted following the initial measures expiry review, the Commission stated that in order to construct the export price it had deducted from the price of the first resale to an independent buyer in the European Union the applicant’s actual selling, general and administrative costs as shown in the documents produced during the administrative procedure and a profit margin of 6%, resulting from observation of the practices of independent importers, the same as that applied in the initial regulation. The Commission explained that the applicant maintained that only around one half of its selling, general and administrative costs related to the phase following the arrival of its products at the EU frontier, since it belonged, with CHEMK and KF, to a single economic entity. Because the Commission had not previously recognised that it belonged to such an entity, the applicant had not, however, wished to adduce evidence capable of substantiating its claim that its costs should be allocated in that way. Consequently, the Commission confirmed that it had deducted all of the applicant’s selling, general and administrative costs in order to construct the export price, and emphasised that the possible existence of a single economic entity consisting of CHEMK, KF and the applicant did not alter anything in that regard, as the criterion that suffices to show the need for the adjustments provided for in Article 2(9) of the basic regulation is the existence of doubt as to the reliability of the export price put forward by the persons concerned, in particular on the ground of an association between exporter and importer.
25      The Commission further stated that it could not grant the applicant’s application, based on Article 11(10) of the basic regulation (now Article 11(10) of Regulation 2016/1036), that the anti-dumping duties should not be deducted from its first resale price to an independent buyer in the European Union when calculating the constructed export price. That application was based by the applicant on the assertion that those duties were duly reflected in that resale price, as had been recognised for the first and second refund investigation periods. The applicant maintained that its prices, determined at CIF level, had increased by 77% and 102% respectively between the investigation period that led to the initial regulation, which covered the period from 1 October 2005 to 30 September 2006, and the third and fourth refund investigation periods. At the ‘ex works’ level, those prices increased by 193% between the investigation period that led to the initial regulation and the third refund investigation period. However, unlike what had been the position for the first and second refund investigation periods, the Commission did not consider that it had evidence that those anti-dumping duties were reflected in the resale prices to independent buyers in the European Union. It emphasised that the prices submitted by the applicant, established at ‘ex works’ and CIF levels, were specifically prices that did not include anti-dumping duties and, moreover, that the ‘delivered duty paid’ prices on first resale to an independent buyer in the European Union had to cover all upstream costs, including anti-dumping duties. However, the figures supplied by the applicant are unconvincing on that point in many respects, inter alia because they reflect averages and are therefore not specifically linked to the transactions in respect of which a refund of the anti-dumping duties was requested. As regards the third refund investigation period, the Commission observed that one of the producers was selling to the applicant at a loss on certain sales. It also observed inconsistencies concerning costs depending on the destination of the products. As regards the fourth refund investigation period, as already stated in recitals 71 and 83 of the regulation adopted following the initial measures expiry review, the Commission considered that in 99% of cases the resale prices after import into the European Union did not reflect the anti-dumping duties because they did not cover the costs, including the anti-dumping duty. The Commission added in that regard that between the investigation period that led to the initial regulation and the third refund investigation period the production costs of products sold in the European Union by CHEMK and KF had increased by 100%, and by 109% for the fourth refund investigation period.
26      After having made the necessary adjustments in order to make, as provided for in Article 2(10) of the basic regulation, a fair comparison between the export price and the normal value, in this instance both reduced to the ‘ex works’ level, the Commission identified a dumping margin of 40.8% for the third refund investigation period and 42.8% for the fourth such period, both being higher than the anti-dumping duty of 22.7% applied, which justified the rejection of the applications for a refund.
27      The applicant brought the present action against the contested decisions in those circumstances.
28      By judgment of 17 March 2015, RFA International v Commission (T‑466/12, EU:T:2015:151), the General Court dismissed the applicant’s action against the first decisions on the applications for a refund. That judgment was the subject of an appeal to the Court of Justice. By judgment of 4 May 2017, RFA International v Commission (C‑239/15 P, not published, EU:C:2017:337), the Court of Justice dismissed the appeal.
29      By judgment of 28 April 2015, CHEMK and KF v Council (T‑169/12, EU:T:2015:231), the General Court dismissed the action brought by CHEMK and KF against the interim regulation. That judgment was the subject of an appeal to the Court of Justice. By order of 9 June 2016, CHEMK and KF v Council (C‑345/15 P, not published, EU:C:2016:433), the Court of Justice dismissed the appeal.
30      By judgment of today’s date, CHEMK and KF v Commission (T‑487/14), the Court dismisses the action brought by CHEMK and KF against the regulation adopted following the initial measures expiry review.
Procedure and forms of order sought
31      The applicant brought the present action by application lodged at the Court Registry on 4 March 2015. The defence was lodged on 19 May 2015.
32      By decision of 13 July 2015, after the main parties had been heard, the President of the Second Chamber of the Court stayed the proceedings, on the basis of Article 69(d) of the Rules of Procedure of the General Court, pending a decision of the Court of Justice in Case C‑239/15 P.
33      As the composition of the Chambers of the Court had been altered, the Judge-Rapporteur was assigned to the Ninth Chamber, to which the present case was therefore assigned.
34      After the proceedings had resumed on 4 May 2017, the reply and the rejoinder were lodged on 24 July and 28 August 2017 respectively. By letter of 14 September 2017, the applicant requested a hearing, stating the reasons for its request.
35      By way of measure of organisation of procedure, the Court put a written question to the Commission to be answered at the hearing.
36      At the hearing on 11 January 2018, the parties presented oral argument and replied to the Court’s questions.
37      The applicant claims that the Court should:
–        annul the contested decisions in whole or in part;
–        order the Commission to pay the costs.
38      The Commission contends that the Court should:
–        dismiss the action as unfounded;
–        order the applicant to pay the costs.
Law
39      The applicant puts forward three pleas in law in support of its action. In essence, it submits that, first, the Commission failed to comply with Article 2(9) of the basic regulation when determining the export price of CHEMK’s and KF’s products, by refusing to take into account the fact that CHEMK and KF constituted a single economic entity with the applicant. Secondly, the Commission, still when determining the export price of those products, also infringed Article 11(9) and (10) of the basic regulation by deducting the anti-dumping duties paid during the third and fourth refund investigation periods from the price of the first resale to an independent buyer in the European Union in order to calculate the constructed export price. The applicant claims that the Commission used in that respect a different methodology from that employed in the interim review in order to reject the applicant’s claim that the anti-dumping duties were fully reflected in the resale price to an independent buyer in the European Union. The application of the same methodology ought to have resulted in those duties not being deducted from that price when the constructed export price was calculated. Even applying the new methodology, that deduction ought not to have taken place for the third refund investigation period. Thirdly, the applicant submits that the Commission also infringed Article 11(9) of the basic regulation, and Article 18.3.1 of the anti-dumping agreement, by applying, in order to determine normal value, a different methodology from that employed in the investigations that led to the initial regulation, the interim regulation and the first decisions on the applications for a refund.
40      Before analysing the pleas in law summarised above, it must be recalled that in the realm of measures to protect trade, the Commission enjoys a broad discretion by reason of the complexity of the economic, political and legal situations which it has to examine (judgment of 27 September 2007, Ikea Wholesale, C‑351/04, EU:C:2007:547, paragraph 40). It follows that review of the assessments of those situations by the Courts of the European Union must be limited, beyond reviewing that there has been no error of law, to verifying whether the relevant procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated and whether there has been a manifest error of assessment of the facts or a misuse of power (see, to that effect, judgments of 7 May 1987, NTN Toyo Bearing and Others v Council, 240/84, EU:C:1987:202, paragraph 19; of 14 March 1990, Gestetner Holdings v Council and Commission, C‑156/87, EU:C:1990:116, paragraph 63; and of 17 March 2015, RFA International v Commission, T‑466/12, EU:T:2015:151, paragraph 37).
The plea alleging an infringement of Article 2(9) of the basic regulation in the construction of the export price
41      The applicant submits, alleging an error of law and a manifest error of assessment, that the Commission did not draw the appropriate conclusions, for the construction of the export price, from the fact that CHEMK, KF and the applicant constituted a single economic entity. It claims that the Commission did not adopt an express position in that respect, but merely stated that the applicant was an importer related to CHEMK and to KF and deducted all of its selling, general and administrative costs, and a profit margin, from its first resale price to an independent buyer in the European Union in order to construct an export price at the EU frontier. In so far as the applicant forms part of a single economic entity with CHEMK and KF and carries out not only the functions following the phase of import into the European Union but also the functions linked with the upstream commercial operations, the Commission ought to have limited the deduction of its selling, general and administrative costs to the phase following import into the European Union. The same applies as regards the profit margin. In that regard, Article 2(9) of the basic regulation does indeed refer to the construction of an export price at the EU frontier level including the costs incurred and the profit accruing before arrival at the EU frontier. It is, therefore, incorrect to maintain, as the Commission does, that the question of the existence of a single economic entity is irrelevant for the construction of an export price.
42      The applicant adds that although it was clearly aware of the applicant’s role before the products concerned arrived at the EU frontier, the Commission never requested from it a breakdown of its costs between the phase prior to importation into the European Union and the subsequent phase. However, in its comments on the Commission’s final disclosure that preceded the adoption of the contested decisions, the applicant stated that at least one half of the costs should not be deducted from the price on first resale to an independent buyer in the European Union for the purpose of establishing the constructed export price. Referring to the judgment of 4 May 2017, RFA International v Commission (C‑239/15 P, not published, EU:C:2017:337), the applicant acknowledges in the reply that it was responsible for supplying evidence of the allocation of its selling, general and administrative costs, and also of its profit margin, between the operations carried out before the products at issue reached the EU frontier and those carried out subsequently, but observes that the Commission did not invite it to do so and a fortiori did not specify the way in which it might do so. In the light of the information which the applicant nonetheless provided concerning its role before the products in question reached the EU frontier, the Commission, in essence, manifestly exaggerated the extent of the adjustments for the purpose of constructing the export price.
43      The applicant does not exclude that in fact the Commission remained with the assessment which it had expressed in recital 64 of the final disclosure document that preceded the regulation adopted following the initial measures expiry review, denying the existence of a single economic entity consisting of the applicant, CHEMK and KF.
44      Referring to the argument that the Commission considered, rather, that the question of the existence of a single economic entity was irrelevant for the construction of an export price, the applicant submits that the Commission misconstrued the interpretation given by the Courts of the European Union in the 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), delivered on appeal against the judgment of 10 March 2009, Interpipe Niko Tube and Interpipe NTRP v Council (T‑249/06, EU:T:2009:62), and in that judgment. According to that interpretation, the existence of a single economic entity consisting of the producer and the importer must be taken into account when constructing the export price itself and not only, as the Commission asserts in recital 68 of the regulation adopted following the initial measures expiry review, when making the fair comparison between the export price and the normal value provided for in Article 2(10) of the basic regulation. Lastly, the applicant refers to the judgments of 5 October 1988, Brother Industries v Council (250/85, EU:C:1988:464), and of 13 October 1993, Matsushita Electric Industrial v Council (C‑104/90, EU:C:1993:837), as illustrating the need to take a situation of a single economic entity into account when it is necessary to construct the normal value. It follows from the 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), that the same procedure must be followed when it is necessary to construct the export price.
45      The Commission disputes the applicant’s arguments. Essentially, it states that during the administrative procedure the applicant at no stage provided precise evidence that would have made it possible to distinguish that which was connected with the operations taking place before arrival at the EU frontier from that connected with operations taking place subsequently, although it was required to do so if it wished that distinction to be taken into account. In this case, the Commission calculated, on the basis of the applicant’s profit and loss account and adjustments justified after an on-the-spot verification visit, a representative level, in relation to turnover, of the selling, general and administrative costs for the third refund investigation period and another for the fourth such period. Those calculations were communicated to the applicant during the administrative stage. As regards the profit margin, owing to the association between CHEMK, KF and the applicant, which rendered the applicant’s profit margin unreliable, it was in keeping with Article 2(9) of the basic regulation to refer to a reasonable profit margin, in this instance the profit margin of independent importers already used in the initial regulation and in the regulation adopted following the initial measures expiry review.
46      It must, first of all, be stated that the existence of a single economic entity between a third-country exporting producer and an importer tasked with importing its products and their first sale in the European Union does not preclude the application of Article 2(9) of the basic regulation in order to determine a reliable export price at the EU frontier. On the contrary, such a situation is the most developed case of association between an exporter and an importer, and one which justifies, in the words of that provision, an export price at the EU frontier level being constructed on the basis of the price at which the imported products are first resold to an independent buyer in the territory of the Member States, applying the appropriate adjustments provided for in the second and third subparagraphs of that provision. It is, therefore, of no account, in the light of Article 2(9) of the basic regulation, that the Commission did not adopt a position in the contested decisions on the existence of a single economic entity between the applicant, CHEMK and KF, because it noted there, for example in recitals 43 and 63 of Decision C(2014) 9805 final, that they were associated, within the meaning of Article 2(9). The applicant does not deny moreover that that provision applies to its situation, but criticises the way in which the adjustments were made by the Commission, which allegedly failed to take appropriate account of the fact that it formed a single economic entity with CHEMK and KF and of the functions it carried out apart from its role as importer of CHEMK’s and KF’s products in the phase following their arrival at the EU frontier.
47      Nonetheless, the applicant has failed to adduce evidence which would allow the distinctions, which it claimed, to be upheld.
48      In the first place, as regards the adjustments in respect of selling, general and administrative costs, Article 2(9) of the basic regulation does indeed imply by its nature, as very clearly confirmed in the second subparagraph thereof, that only operations between the arrival at the EU frontier and the first resale to an independent buyer on the territory of the EU Member States are to be taken into account, since the purpose of that provision is to determine by means of a reverse calculation an export price at the EU frontier level. The costs linked to operations before arrival at that frontier or concerning imports and exports in third countries must, therefore, be excluded from those adjustments.
49      However, the applicant states, in paragraph 54 of the application, that it has not provided a breakdown of its selling, general and administrative costs enabling that which related to the stage prior to the arrival at the EU frontier to be distinguished from that which concerned the post-arrival stage. The examples of items of expenditure which the applicant indicated, in response to the Commission’s final disclosure document that preceded the adoption of the contested decisions, as relating to both phases (for example, commissions, salaries and bonuses, financial expenses or income) do not make it possible without further information, even for those items alone, for it to be ascertained to what extent they concerned the operations prior to arrival at the frontier. The applicant does indeed submit that the Commission ought itself to have requested information from it on that breakdown which it did not have to provide spontaneously. However, as was in essence held in the judgments of 4 May 2017, RFA International v Commission (C‑239/15 P, not published, EU:C:2017:337, paragraphs 34 to 44), and of 17 March 2015, RFA International v Commission (T‑466/12, EU:T:2015:151, paragraphs 44 and 57 to 64 and the case-law cited), where the exporter and importer are associated, as in the present case, it is for the interested party who intends to dispute the extent of the adjustments made on the basis of Article 2(9) of the basic regulation, on the ground that the adjustments determined in respect of selling, general and administrative costs for importation into the European Union are excessive, itself to supply specific evidence and calculations justifying those claims and, in particular, the alternative rate in relation to turnover that it suggests in order to represent the amount of those costs which it considers appropriate. That is in particular relevant when the interested party argues that the Commission has in its possession only overall data likely to cover not only the operations between the arrival at the EU frontier and the first resale to an independent buyer on the territory of the EU Member States, but also the operations prior to that arrival. In that regard, the assertion in the response to the Commission’s final disclosure document that preceded the adoption of the contested decisions that over half the value of the items of expenditure accepted by the Commission should be attributed to the operations prior to arrival was far too vague and unsubstantiated to be upheld.
50      In the second place, as regards the profit margin of 6% of the applicant’s net turnover adopted by the Commission, corresponding to the profit margin of independent importers, representing the profit also to be taken into account in respect of the adjustments in order to construct the export price on the basis of the first resale to an independent buyer in the European Union, the applicant’s argument that only a proportion of that margin is linked to the operations following the arrival at the EU frontier and should be accepted cannot succeed either.
51      First, the distinction claimed by the applicant is not a priori justified as a matter of principle as regards a profit margin deriving from the observation of the activity of independent importers which, except in special cases, take over the products at the EU frontier.
52      Secondly, even if the profit margin of the applicant itself were taken as the starting point, the applicant proposed in its observations on the final disclosure document that preceded the adoption of the contested decisions that the cost of the exported product and the export turnover represent, respectively, the proportion of the operations linked to exportation to the European Union and the proportion of the operations carried out following the arrival at the EU frontier, which would enable the profit to be divided between the two types of operation. However, that extrapolation is unconvincing, because it leads to the same factors being counted for both types of operation, since the turnover, achieved by the resale to the independent buyers in the European Union, necessarily includes the cost of the exported product, which it must as a rule cover.
53      In its application, the applicant added that since it was an importer belonging to the same economic entity as CHEMK and KF, it was normal for it to record only a minor, if any, profit, in essence because there is no need to remunerate an independent buyer. The essential part of the profits should thus be attributed to the producers CHEMK and KF for their activity prior to the arrival of their products at the EU frontier.
54      However, as was held in the judgments of 5 October 1988, Canon and Others v Council (277/85 and 300/85, EU:C:1988:467, paragraph 32), and of 17 March 2015, RFA International v Commission (T‑466/12, EU:T:2015:151, paragraph 68 and the case-law cited), in situations where an importer is, as in the present case, related to a producer, the Commission is fully entitled to choose as a profit margin, in respect of the adjustments in order to construct the export price, the margin of independent importers, in particular because the data provided by associated entities responsible in particular for importation into the European Union may be influenced by that association. The Commission could, therefore, properly choose the 6% profit margin used during the initial investigation, having regard to the absence of cooperation of such importers in the refund investigation, as set out for example in recital47 of Decision C(2014)9805 final.
55      The 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), and of 10 March 2009, Interpipe Niko Tube and Interpipe NTRP v Council (T‑249/06, EU:T:2009:62), relied on by the applicant in support of its first plea in law, in no way call into question the approach selected by the Commission, both for evaluating the selling, general and administrative costs and the profit margin. In those judgments, the Court of Justice and the General Court held, in essence, in paragraphs 51 to 56 and paragraphs 177 and 178 of those judgments respectively, that, in the case of a single economic entity comprising the producer but also a legally distinct entity controlled by it and responsible for sales functions to independent buyers, it was necessary, both for determining normal value and constructing the export price, to take account of the price paid by the first independent buyer but also the costs which would as a matter of course be met by the producer’s internal sales department if the latter had not had recourse for its sales to a legally distinct entity, in order to avoid those costs being omitted in the determination of those different prices. Those substantive considerations are equally as valid, as regards the export price, in the context of its construction under Article 2(9) of the basic regulation and in the context of the adjustments which may be made to it in order to arrive at a fair comparison with normal value under Article 2(10) of the basic regulation, which was the context in which those considerations were formulated in the abovementioned judgments. Consequently, it is not incompatible with those judgments to deduct the selling, general and administrative costs and a profit margin corresponding to the activity of an importer of the products at issue into the European Union, from the price of their first resale to an independent buyer on the Member States’ territory in order to calculate a reliable export price when importation is, as in the present case, carried out by an entity legally distinct from the producer, but which, as the applicant maintains, constitutes a single economic entity with it. That assessment is without prejudice to the allocation of the burden of proof regarding the appropriateness of the adjustments to be made when applying Article 2(9) and Article 2(10) of the basic regulation respectively, which was considered in the judgment of 4 May 2017, RFA International v Commission (C‑239/15 P, not published, EU:C:2017:337, paragraphs 40 to 44).
56      Similarly, the judgments of 5 October 1988, Brother Industries v Council (250/85, EU:C:1988:464), and of 13 October 1993, Matsushita Electric Industrial v Council (C‑104/90, EU:C:1993:837), relied on by the applicant to illustrate the need to take into account a situation of a single economic entity when normal value and, by analogy, the export price, must be constructed, do not call into question the approach chosen in the present case by the Commission in order to evaluate the selling, general and administrative costs and the profit margin to be deducted from the price of the first resale to an independent buyer in the European Union in order to construct the export price. Although those judgments mention, for the cases in question, the existence of a single economic entity, it is to confirm that the normal value was determined — correctly as the Court of Justice held — on the basis of the resale prices charged by distributors related to the producer, thereby incorporating costs which would, in a different structure, have been met by the producer’s internal sales department. In those circumstances, those judgments in no way call into question the analysis set out in paragraphs 46 to 50 above.
57      It follows from the foregoing that the applicant’s first plea in law, alleging an infringement of Article 2(9) of the basic regulation in the construction of the export price, is unfounded.
The plea alleging an infringement of Article 11(9) and (10) of the basic regulation in the construction of the export price
58      The applicant alleges errors of law and a manifest error of assessment and submits that, when calculating the constructed export price, the Commission should not have deducted from the price of the first resale to an independent buyer in the European Union the amount of the anti-dumping duties which it paid during the third and fourth refund investigation periods, in so far as they were fully reflected in the resale prices in the European Union. The Commission thus infringed Article 11(10) of the basic regulation, which provides that where it is decided, in the course of a refund investigation, to construct the export price in accordance with Article 2(9) of that regulation, the Commission is to calculate the export price with no deduction for the amount of anti-dumping duties paid when conclusive evidence is provided that the duty is duly reflected in resale prices and the subsequent selling prices in the European Union. In the applicant’s submission, if the Commission had not deducted the anti-dumping duties when calculating the constructed export price, the dumping margin would have been reduced to just over 18% for the third refund investigation period and just over 20% for the fourth such period. In addition, when assessing whether the anti-dumping duties had really been reflected in the resale prices, the Commission did not do so on the basis of the resale price identified in the investigation that led to the initial regulation, but on the basis of current production costs in Russia. In so doing, the Commission did not apply the same methodology as that used for the review investigation that led to the interim regulation or for the investigation for the purposes of the first decisions on the applications for a refund, and this without providing reasons. In the reply, the applicant submits that there was no change of circumstances that would have justified such a change of methodology, in particular that the increase in costs to which the Commission refers was already observed during the first and second refund investigation periods. The Commission thus also infringed Article 11(9) of the basic regulation, which provides that in all review investigations carried out pursuant to that article, the Commission is, provided that circumstances have not changed, to apply the same methodology as in the investigation which led to the duty, with due account being taken of Article 2 of that regulation. In addition, even if the Commission had been entitled to change its methodology, a requirement that the resale prices cover the costs, including anti-dumping duties, in order to consider that those duties are duly reflected in the resale prices would amount to extending the requirements of Article 11(10) of the basic regulation, since it would amount to requiring that those resale prices incorporate an amount substantially higher than the anti-dumping duties, which are the only items mentioned in that provision as having to be reflected in the resale prices in order not to be deducted in the calculation of the constructed export price. The applicant points out in that regard that the Commission Notice concerning the reimbursement of anti-dumping duties (OJ 2014 C 164, p. 9) states:
‘Where the export price is constructed under Article 2(9) of the basic Regulation, the Commission shall calculate it with no deduction for the amount of anti-dumping duties paid when conclusive evidence is provided that the duty is duly reflected in resale prices and the subsequent selling prices in the European Union. The Commission will examine whether an increase in selling prices to independent Union customers between the original and the refund investigation period incorporates the anti-dumping duties.’
59      In the reply, the applicant adds that in the judgment of 18 November 2015, Einhell Germany and Others v Commission (T‑73/12, EU:T:2015:865, paragraph 155), it was held that the comparison between the resale prices charged before the imposition of the anti-dumping duties and during the period under examination was relevant for determining whether or not the anti-dumping duties were reflected in those prices during the latter period.
60      The applicant observes, moreover, that in the interim regulation and in the first decisions on the applications for a refund, the Commission stated:
‘The investigation has established that the weighted average resale prices of ferro-silicon in the Union have increased in comparison with the prices in the original investigation and the current resale export prices are largely more than 22.7% [the rate of the anti-dumping duty] higher than such prices in the original investigation. Therefore, it can be concluded that the anti-dumping duty is duly reflected in the applicant’s resale prices. As a result, … in the calculation of the constructed export prices in accordance with Article 2(9) of the basic regulation, no deduction of the anti-dumping duties has been carried out.’
61      In this case, in its comments on the final disclosure document that preceded the adoption of the contested decisions, the applicant provided the Commission with conclusive evidence that the resale prices of CHEMK’s and KF’s products in the European Union had increased in a higher proportion than the anti-dumping duty of 22.7% between the investigation period that led to the initial regulation and the third and fourth refund investigation periods that led to the contested decisions. They increased by more than 100%, in particular by 193% at the ‘ex works’ stage and by 142% at the CIF stage as regards the third refund investigation period. In that regard, even if the Commission’s change of methodology were acceptable and even if the level of increase of 100% of CHEMK’s and KF’s production costs which it identified were correct, the anti-dumping duties, duly reflected in the resale prices, should not have been deducted from the price of the first resale to an independent buyer in the European Union in order to calculate the constructed export price.
62      In answer to the considerations expressed by the Commission in the contested decisions, for example in recitals 78 to 83 of Decision C(2014) 9805 final, questioning the reliability of the data relating to the price increases referred to in paragraph 61 above, the applicant observes that the Commission nonetheless used that same data in order to calculate the constructed normal value and the constructed export price and did not request other data during the investigation.
63      In the reply, on the same aspect, in answer to the Commission’s argument in its defence that the price data at the ‘ex works’ stage and the CIF stage are not relevant for the purpose of assessing whether the anti-dumping duties are reflected in the resale prices in the European Union, the applicant states that for the third refund investigation period, even the comparison of prices at the ‘delivered duty paid’ stage would have given similar results, because the ‘ex-works’ and CIF prices which it put forward included the anti-dumping duties. More fundamentally, however, the Commission cannot require proof at the ‘delivered duty paid’ stage, as no precise methodology is prescribed in Article 11(10) of the basic regulation, the only question being whether the exporter altered its pricing practice in the European Union after the imposition of the anti-dumping duties, by eliminating the dumping margin, which comparisons at the ‘ex works’ or CIF stages could reveal. The applicant relies in that regard on the judgment of 18 November 2015, Einhell Germany and Others v Commission (T‑73/12, EU:T:2015:865, paragraph 66). At the hearing, the applicant clarified that a comparison of the prices at the ‘delivered duty paid’ stage between the investigation period that led to the initial regulation and the third and fourth refund investigation periods that led to the contested decisions was not possible in the present case, because, as was stated, for example, in recital 19 of Decision C(2014) 9805 final, during the first of those periods, the importers of CHEMK’s and KF’s products into the European Union frequently employed ‘ex works’ sales prices or those corresponding to another commercial stage, and not primarily ‘delivered duty paid’ prices as during the third and fourth refund investigation periods. The applicant also maintains that the other doubts expressed by the Commission, referred to in paragraph 25 above, connected with the fact that one of the producers was selling to the applicant at a loss, and with discrepancies related to costs depending on the destination of the products, are unfounded. In fact, intra-group transfer prices are of no significance so far as any variations in the applicant’s resale prices for independent buyers in the European Union are concerned and the differences in costs depending on the destination of the products may be explained by the different grades demanded.
64      The Commission disputes the applicant’s arguments. In particular, it emphasises that the requirement in Article 11(10) of the basic regulation that the anti-dumping duties are not to be deducted from the resale price in the European Union in the calculation of a constructed export price carried out in the context of a review or refund investigation, when conclusive evidence is provided that those duties are duly reflected in the resale price, does not refer to fluctuations in the resale price over time, but to the analysis of that price during the relevant investigation period, which is relevant for the purposes of ascertaining whether, at that particular time, it reflects, or in other words incorporates, the anti-dumping duties. The Commission Notice concerning the reimbursement of anti-dumping duties, referred to by the applicant and cited in paragraph 58 above, does not state otherwise. In addition, it follows from Article 11(10) of the basic regulation that the burden of proof that the anti-dumping duties are reflected in the resale price is a high one for the undertaking which seeks to benefit from their non-deduction in the calculation of the constructed export price, as is shown by the expression ‘conclusive evidence’. Accordingly, where there is doubt such an application cannot be granted.
65      Taking the production costs into account is relevant in that context for ascertaining whether the anti-dumping duties are actually reflected in the resale price in the European Union. The failure of that price to cover all costs, including the anti-dumping duties, shows that the latter are not fully incorporated. In this instance, the investigation showed an increase, by comparison with the initial investigation period, of 100% of production costs for the third refund investigation period and 109% for the fourth such period, as indicated, for example, in recital 85 of Decision C(2014) 9805 final.
66      As regards the latter period, the applicant has failed to adduce any evidence capable of invalidating the conclusion that the anti-dumping duties were not duly reflected in the resale price in the European Union, drawn from the finding that in 99% of cases the resale price did not cover the costs, including the anti-dumping duties (a finding made, for example, in recital 84 of Decision C(2014) 9805 final, and in recital 71 of the regulation adopted following the initial measures expiry review).
67      As regards the third refund investigation period, the Commission refers to the reasons, set out in the contested decisions, for example in recitals 78 to 82 of Decision C(2014) 9805 final, and mentioned in paragraph 25 above, in respect of which it deemed that the data on the basis of which the applicant had maintained that its resale prices had risen steeply were not reliable. In particular, the judgment of 18 November 2015, Einhell Germany and Others v Commission (T‑73/12, EU:T:2015:865), shows that it is not appropriate to rely on averages rather than on analyses for each transaction.
68      The Commission maintains, generally, that that judgment specifically shows that if several methodologies are possible for applying Article 11(10) of the basic regulation, some of them may be more appropriate.
69      In that regard, it must, first of all, be stated that, as regards the application of Article 11(10) of the basic regulation, it is justified, where the production costs of the products concerned have varied significantly between the investigation period previously taken into consideration and the new investigation period, for the Commission to take into account, in order to ascertain whether the anti-dumping duties are duly reflected in the resale prices of those products in the European Union during that latter period, not the resale prices established during the first of those periods, but the costs recorded during the new investigation period. Those considerations are valid even if it may be considered that there has been a change in methodology in relation to what was done in the context of an earlier investigation, as is true in the present case contrary to what the Commission principally claimed in the contested decisions and as set out in paragraph 22 above.
70      Such a practice seeks to ensure solid analysis in the comparison of complex economic situations in order not only to justify the merits of the measures adopted under the anti-dumping legislation, but also to ensure, between the operators likely to be the subject of those measures, compliance with the general EU law principle of equal treatment. While ensuring the solidity, in the economic analysis, of the comparison of the situation between two periods justifies, as a rule, the application of the same methodology, that is not the case if the relevant parameters have sufficiently changed to render the application of the methodology previously used inappropriate for the purpose of giving a reliable result, in this case in order to assess whether or not the anti-dumping duties were duly reflected in the resale prices and subsequent selling prices in the European Union (see, to that effect and by analogy, judgment of 18 September 2014, Valimar, C‑374/12, EU:C:2014:2231, paragraphs 50 and 59). As the Commission contends, if the production costs have significantly increased between the two periods compared, an increase in the resale prices in the European Union, even if considerable, does not necessarily guarantee that the anti-dumping duties have been duly reflected, that is to say fully reflected, in the establishment of those prices. Production costs may have increased more than prices. In that case, even if the new prices are higher than the former prices plus anti-dumping duties, the interested parties do not duly incorporate the anti-dumping duties given the change in their production costs.
71      The arguments put forward by the applicant in the present case do not call into question that analysis. First of all, contrary to what the applicant essentially claims, Article 11(10) of the basic regulation in no way implies, in so far as it relates to the issue of whether ‘the duty is duly reflected in resale prices’, that only the equivalent of the anti-dumping duty should be incorporated into the new resale price over and above the resale price previously charged in order to benefit from a positive response. An additional duty in relation to the costs normally incurred is ‘duly reflected’ only if it is added to those other costs. If those other costs increase, but the resale price increases by a lesser amount, the duty is in fact only partially added to those costs or not at all, even if the equivalent of the duty has been added to the resale price previously charged. The extract from the Commission Notice concerning the reimbursement of anti-dumping duties, highlighted by the applicant and cited in paragraph 58 above, in no way contradicts that analysis. The same is true of the judgment of 18 November 2015, Einhell Germany and Others v Commission (T‑73/12, EU:T:2015:865), relied on by the applicant. In particular, paragraph 155 of that judgment states, read in context, that a methodology other than the comparison of resale prices in the European Union charged before the institution of the anti-dumping duties and those charged subsequently may be appropriate to determine whether or not those duties are reflected in the new resale prices in the European Union.
72      As regards the actual facts of the present case, as far as the fourth refund investigation period is concerned, which corresponds to the year 2012, it must be pointed out that, in the contested decisions, for example in recital 85 of Decision C(2014) 9805 final, the Commission found that the production costs had increased significantly compared with the initial investigation period, by 109%, without being disproved as to the substance by the applicant, in particular in the present action. In those circumstances, in order to determine whether the anti-dumping duties were duly reflected in the resale prices in the European Union charged by the applicant on behalf of CHEMK and KF during the fourth refund investigation period, the Commission was justified in taking into account not the resale prices during the initial period, but rather the production costs recorded in 2012.
73      In a situation where, as the Commission noted in the contested decisions, for example in recital 84 of Decision C(2014) 9805 final, only in 1% of cases the resale prices in the European Union cover the cost of the products, inclusive of the anti-dumping duty, it is far from proven that those duties are in fact duly reflected in those prices.
74      Even the increase in the resale prices between the initial investigation period and the fourth refund investigation period of over 100%, put forward by the applicant, is insufficient in that context to show that the anti-dumping duties were fully reflected during the second of those periods. It is sufficient, as indicated in essence in paragraph 70 above, if the production costs have increased more than the prices charged in order for those prices not to reflect the anti-dumping duties duly, given the change in production costs. That is a priori proven by the fact, found by the Commission, that in 99% of cases the cost of the products, inclusive of anti-dumping duty, was not covered by the resale prices in the European Union in 2012.
75      The Commission was, therefore, right in deducting the anti-dumping duty from the resale price of the first independent buyer in the European Union in order to calculate the constructed export price for the fourth refund investigation period, since it was not proven that the anti-dumping duty was duly reflected in the first of those prices.
76      As regards the third refund investigation period, the applicant submits that its resale prices in the European Union increased by 193% at the ‘ex works’ stage and 142% at the CIF stage from the investigation period that led to the initial regulation, which, it alleges, would amply cover both the 22.7% anti-dumping duty and the 100% increase in production costs identified between the same periods by the Commission, for example in recital 85 of Decision C(2014) 9805 final. Even the comparison at the ‘delivered duty paid’ stage would produce a result which would lead to a partial refund of duties.
77      However, the Commission correctly contends, as it set out in the contested decisions, for example in recital 78 of Decision C(2014) 9805 final, that the analysis of the resale prices in the European Union in order to ascertain to what extent they reflect the anti-dumping duties must be carried out at the level of trade subsequent to the payment of those duties, that is to say, by definition, at a level of trade where the price takes into account additional costs compared with those selected at the ‘ex works’ or CIF stage. It must be pointed out in that regard that while it is provided for in the basic regulation that certain prices may be adjusted at a level of trade different from that at which they are normally charged, this is to ensure a fair comparison of the prices which do not necessarily reflect the same services. Accordingly, Article 2(10)(d) of the basic regulation (now Article 2(10(d) of Regulation 2016/1036) provides that a fair comparison between the export price and the normal value may require adjustments in order to take into account the differences in the levels of trade at which those prices are charged. That is not the case, however, in order to assess only the resale prices in the European Union in the context of Article 11(10) of the basic regulation, which does not provide for such adjustments. Moreover, inasmuch as the Commission is justified, in order to apply that provision, in certain situations such as the present case, in analysing the resale prices taking into account all the costs incurred before that resale, as noted in paragraph 69 above, an analysis of prices established at the ‘ex works’ or CIF stage, even artificially adding anti-dumping duties thereto as the applicant maintains was done — that is to say not taking into account some of the costs borne before that resale — would not be coherent. In addition, in those situations, there is no need to carry out a comparison of the resale prices in the European Union between two successive periods; such a comparison may be affected, as in the present case, by the differences in time of the levels of trade at which the importers of the products concerned invoiced them in respect of the first independent buyers in the European Union. It is, on the other hand, essential to verify whether the evidence put forward by the importer concerned proves that the price actually paid by those buyers during the period under examination duly reflects the anti-dumping duties. In that regard, it was found in the contested decisions, which is not disputed by the applicant, that it then for the most part sold the products there on the basis of the ‘delivered duty paid’ price, that is to say encompassing all the costs prior to delivery, which was such as to facilitate that verification.
78      Consequently, the applicant could not rely on the change in the prices brought back to the ‘ex works’ or CIF stage, even increased by the anti-dumping duties, in order to show that it reflected, during the third refund investigation period, the anti-dumping duties in its resale prices in the European Union. It ought to have adduced evidence showing that its ‘delivered duty paid’ prices charged during that period covered all the costs incurred at that stage for the products at issue, anti-dumping duties included, which it was unable to do. The Commission was, therefore, fully entitled to deduct the anti-dumping duty from the resale price to the first independent buyer in the European Union in order to calculate the constructed export price for the third refund investigation period, since it was not shown that the anti-dumping duty was duly reflected in the first of those prices. There is, consequently, no need to examine the arguments exchanged between the parties as to the reliability or method of calculation of those ‘ex works’ and CIF prices. As regards the applicant’s assertion in the reply that even the comparison of the resale prices at the ‘delivered duty paid’ stage would give a result that must lead to a partial refund of duties, it is not, in any event, sufficiently substantiated in order to be able to be taken into consideration in the context of the review of the lawfulness of the contested decisions (see, to that effect, judgment of 17 March 2015, RFA International v Commission, T‑466/12, EU:T:2015:151, paragraph 44 and the case-law cited).
79      It follows from the foregoing that the applicant’s second plea in law, alleging an infringement of Article 11(9) and (10) of the basic regulation in the construction of the export price, is also unfounded.
The plea alleging the infringement of Article 11(9) of the basic regulation and of Article 18.3.1 of the anti-dumping agreement in the construction of normal value
80      First of all, it must be stated that, as is apparent for example from recital 25 et seq. of Decision C(2014) 9805 final, in the context of the contested decisions, the Commission constructed the normal value, within the meaning of Article 2 of the basic regulation, of the products concerned in Russia only when, in accordance with Article 2(2) of that regulation, the sales volume to independent buyers of the type of ferro-silicon at issue in Russia represented less than 5% of the sales volume of like products to independent buyers in the European Union (non-representative sales). In other cases, it used the normal value found.
81      The applicant takes issue with the Commission because when it calculated the constructed normal value, it added to the production cost, adjusted where necessary to take account of intragroup sales of raw materials, the actual value of the selling, general and administrative costs and of the profit for sales in Russia of the type of ferro-silicon in question; in other words, the Commission used non-representative sales data instead of adding to the production cost the value of the same costs and profit found for the types of ferro-silicon for which sales in Russia to independent buyers were equal to or greater than 5% of the volume of the sales of like products to independent buyers in the European Union, that is to say, representative sales data. The Commission thus altered its methodology by comparison with the methodology used for the initial investigation, the investigation for the purposes of the interim regulation and the investigation for the purposes of the first decisions on the applications for a refund. In so doing, the Commission again infringed Article 11(9) of the basic regulation, which provides that ‘in all … refund investigations … the Commission shall, provided that circumstances have not changed, apply the same methodology as in the investigation which led to the duty …’, but also infringed Article 18.3.1 of the anti-dumping agreement, which provides that ‘with respect to the calculation of margins of dumping in refund procedures … the rules used in the most recent determination or review of dumping shall apply’. According to the applicant, the latter provision should apply even if the methodology previously used is incompatible with that agreement. To that extent, the Commission’s reference in the final disclosure document that preceded the contested decisions to the recommendations of the WTO Dispute Settlement Body in the dispute between the European Union and Norway known as ‘Salmon from Norway’, which supports recourse to actual data linked with the sales examined, even if they are non-representative, is inappropriate. In any event, the Commission has not explained, as required by Article 11(9) of the basic regulation, how the factual elements identified in the contested decisions, for example in recital 19 of Decision C(2014) 9805 final, which are supposed to characterise a change in circumstances, justified its failure to use the data linked to representative sales.
82      The Commission contends, at the outset, as it explained in the contested decisions, that Article 18.3.1 of the anti-dumping agreement, read in the light of Article 18.3 of that agreement, is a transitional provision linked with the date of entry into force of that agreement — 1 January 1995 — which is no longer applicable in the present case. The Commission also refers to the judgment of 17 March 2015, RFA International v Commission (T‑466/12, EU:T:2015:151, paragraph 140), which shows, in essence, that, in so far as Article 11(9) of the basic regulation does not seek to implement Article 18.3.1 of the anti-dumping agreement, the latter provision cannot be relied on as against an EU act. As regards the alleged infringement of Article 11(9) of the basic regulation, the Commission emphasises, first, that it complied strictly with Article 2 of that regulation in order to determine the normal value. In particular, for the types of ferro-silicon for which sales in Russia to independent buyers were less than 5% of the volume of sales of like product to independent buyers in the European Union — for CHEMK, two types of products out of five during the third refund investigation period and one type of product out of five during the fourth such period; for KF, one type of product out of nine during the third refund investigation period — the Commission applied the first of the two methodologies provided for in Article 2(3) of the basic regulation in order to calculate the constructed normal value, namely the methodology consisting in adding to the production cost in the country of origin a reasonable amount for selling, general and administrative costs and a reasonable profit margin. For that purpose, it followed the provisions of Article 2(6) of the basic regulation (now Article 2(6) of Regulation 2016/1036), which states: ‘the amounts for selling, for general and administrative costs and for profits shall be based on actual data pertaining to production and sales, in the ordinary course of trade, of the like product, by the exporter or producer under investigation’. In this case, the actual data, the reliability of which was not in doubt, were those related to sales of the types of products in question, even if they were less than 5% of sales of like products to independent buyers in the European Union and not data related to sales of other types of products. The Commission then states that it applied exactly the same procedure in the earlier investigations concerning the applicant, CHEMK and KF, in particular for the investigation that led to the regulation adopted following the initial measures expiry review. The Commission observes, lastly, that that procedure was endorsed by the WTO Dispute Settlement Body in the dispute between the European Union and Norway known as ‘Salmon from Norway’. There is, therefore, nothing in the contested decisions to identify an infringement of Article 11(9) of the basic regulation.
83      In the first place, it must be noted, without needing to adjudicate on all aspects of the Commission’s arguments in that regard raised in defence, that the applicant’s argument alleging an infringement of Article 18.3.1 of the anti-dumping agreement has already been rejected in the judgment of 17 March 2015, RFA International v Commission (T‑466/12, EU:T:2015:151).
84      It is apparent from settled case-law that, having regard to their nature and structure, the WTO agreements are not in principle among the rules in the light of which the Courts of the European Union are to review, under the first paragraph of Article 263 TFEU, the legality of measures adopted by the institutions of the European Union. However, where the European Union intends 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 judgment of 17 March 2015, RFA International v Commission, T‑466/12, EU:T:2015:151, paragraph 134 and the case-law cited).
85      While it is apparent from recital 3 of the basic regulation (now recital 3 of Regulation 2016/1036) that the purpose of that regulation is, inter alia, to transpose into EU law as far as possible the rules contained in the anti-dumping agreement, which include, in particular, those relating to the duration and review of anti-dumping duties and it follows that the provisions of that regulation must be interpreted, so far as possible, in a manner that is consistent with the corresponding provisions of the anti-dumping agreement (see judgment of 9 January 2003, Petrotub and Republica v Council, C‑76/00 P, EU:C:2003:4, paragraphs 55 to 57 and the case-law cited), it must be found, as Advocate General Cruz Villalón observed in point 74 of his Opinion in Valimar (C‑374/12, EU:C:2014:118), that the anti-dumping agreement does not include any provisions equivalent to those of Article 11(9) of the basic regulation, with the result that the rule contained in that provision cannot be considered a transposition of one of the detailed rules of that agreement which must be interpreted in accordance with the latter (see, to that effect, judgment of 17 March 2015, RFA International v Commission, T‑466/12, EU:T:2015:151, paragraphs 135 to 137).
86      In particular, whereas Article 11(9) of the basic regulation lays down the principle that the methodology for evaluating dumping and injury used in the investigation which led to the anti-dumping duty should be maintained in all review or refund investigations in respect of that duty, unless the circumstances have changed, Article 18.3.1 of the anti-dumping agreement provides, in essence, that as from the date on which that agreement entered into force for a WTO member, the rules defined in that agreement are to apply, subject to the reservation that, as regards the assessment of the dumping margin in refund investigations, the rules used in the most recent determination or review of dumping are to continue to apply for the product concerned and may if necessary, for some time after that entry into force and according to the circumstances of the case under examination, be different from the rules defined in that agreement (see, to that effect, judgment of 17 March 2015, RFA International v Commission, T‑466/12, EU:T:2015:151, paragraphs 138 and 139). The two provisions do not, therefore, have the same temporal scope, but above all they do not have the same material scope, in particular because the rules referred to in Article 18.3.1 of the anti-dumping agreement and the methodology referred to in Article 11(9) of the basic regulation do not correspond to the same concept.
87      It follows, as the Commission correctly states, that Article 11(9) of the basic regulation does not implement Article 18.3.1 of the anti-dumping agreement (judgment of 17 March 2015, RFA International v Commission, T‑466/12, EU:T:2015:151, paragraph 140), with the result that the latter provision is irrelevant in the context of the present plea.
88      In the second place, as regards the alleged infringement of Article 11(9) of the basic regulation, it is not apparent from an examination of the initial regulation, read in the light of Commission Regulation (EC) No 994/2007 of 28 August 2007 imposing a provisional anti-dumping duty on imports of ferro-silicon originating in the People’s Republic of China, Egypt, Kazakhstan, the former Yugoslav Republic of Macedonia and Russia (OJ 2007 L 223, p. 1) which preceded it as regards the imports at issue in the present case, that, with a view to adopting those regulations, the competent institutions calculated the constructed normal value for the types of products whose sales to independent buyers in the country of production were less than 5% of the sales of like products to independent buyers in the European Union in a manner different from that followed in order to prepare the contested decisions, which was to rely on actual data relating to the types of products concerned. In that regard, recital 44 of Regulation No 994/2007 states:
‘To construct normal value pursuant to Article 2(6) of [Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1) (replaced by the basic regulation)], the selling, general and administrative (SG&A) expenses incurred and weighted average profit realised by the cooperating exporting producers concerned on domestic sales of the like product, in the ordinary course of trade, during the [period considered], was added to their own average cost of manufacturing during the [period considered].’
89      The same is true of the interim regulation (see recital 20) and the first decisions on the applications for a refund (see, for example, recital 19 of Decision C(2012) 5577 final). Only the regulation adopted following the initial measures expiry review refers, in recital 60, to the use of actual data or ‘facts available’, without further qualification. Admittedly, in the response at the hearing to a written question from the Court in that respect, the Commission stated that that reference to the facts available related to a flat-rate profit margin which it had contemplated adding to a transfer price for raw material between KF and CHEMK in the construction of normal value. However, it ultimately abandoned this taking into account the latters’ observations as shown by recital 77 of that regulation, with the result that that reference was erroneously included in the regulation. While the applicant complained at the hearing of the confused reasoning of that regulation, which was allegedly prejudicial to the discussions which preceded the adoption of the contested decisions, it did not, however, challenge that explanation. Accordingly, the applicant has not proven that the Commission had changed methodology in order to calculate the constructed normal value of CHEMK’s and KF’s products.
90      In those circumstances, the third plea in law has no legal or factual basis and the action must be dismissed.
Costs
91      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders RFA International, LP to pay the costs.
Gervasoni
Madise
da Silva Passos
Delivered in open court in Luxembourg on 15 November 2018.
E. Coulon
S. Gervasoni
Registrar
President
*      Language of the case: English.