JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
15 November 2015 (*) (1)
(Dumping — Imports of ferro-silicon originating in Russia — Definitive anti-dumping duty — Expiry review — Determination of 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 — Continuation or recurrence of dumping and injury — Article 2(9), Article 3 and Article 11(9) and (10) of Regulation (EC) No 1225/2009 (now Article 2(9), Article 3 and Article 11(9) and (10) of Regulation (EU) 2016/1036))
In Case T‑487/14,
Chelyabinsk electrometallurgical integrated plant OAO (CHEMK), established in Chelyabinsk (Russia),
Kuzneckie Ferrosplavy OAO (KF), established in Novokuznetsk (Russia),
represented by B. Evtimov and M. Krestiyanova, lawyers,
applicants,
v
European Commission, represented by M. França, J.-F. Brakeland, A. Stobiecka-Kuik and A. Demeneix, acting as Agents,
defendant,
supported by
Euroalliages, established in Brussels (Belgium), represented by O. Prost and M.-S. Dibling, lawyers,
APPLICATION under Article 263 TFEU for annulment 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 Council Regulation (EC) No 1225/2009 (OJ 2014 L 107, p. 13), in so far as it concerns the applicants
THE GENERAL COURT (Ninth Chamber),
composed of S. Gervasoni, President, L. Madise (Rapporteur) and R. da Silva Passos, Judges,
Registrar: S. Spyropoulos, Administrator,
having regard to the written part of the procedure and further to the hearing on 14 December 2017,
gives the following
Judgment
Background to the dispute
1        The applicants, Chelyabinsk electrometallurgical integrated plant OAO (CHEMK) and Kuzneckie Ferrosplavy OAO (KF), are companies established in Russia, active in the production of ferro-silicon, an alloy used in the manufacture of steel and iron. RFA International, LP (‘RFAI’) is a company related to those companies. RFAI is established in Canada and has a branch in Switzerland, which is responsible for the applicants’ 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 the applicants. The applicants 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, the applicants 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, the applicants 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        In addition, between 30 July 2009 and 10 December 2010, RFAI, in accordance with Article 11(8) of the basic regulation (now Article 11(8) of Regulation 2016/1036), submitted to the European Commission, through the customs authorities of various Member States, several applications for the refund of anti-dumping duties paid on the import of the applicants’ products. Those applications related to anti-dumping duties paid by RFAI between 7 January 2009 and 10 December 2010. The refund investigation covered the period from 1 October 2008 to 30 September 2010. In order to calculate new dumping margins, the Commission divided the refund investigation period into two separate periods: (i) the period from 1 October 2008 to 30 September 2009 (‘the first refund investigation period’) and (ii) the period from 1 October 2009 to 30 September 2010 (‘the second refund investigation period’).
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 the applicants 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 the applicants in order to demonstrate that, together with RFAI, they formed a single economic entity (recitals 23, 24, 36 and 37 of the interim regulation). The applicants 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 RFAI 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. RFAI 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 (‘the 2009-2012 period used in the examination of the likelihood of injury’)
11      As regards the products imported from Russia, only the applicants, RFAI and six EU producers cooperated in the investigation. No independent importer cooperated.
12      As the applicants and RFAI 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 contested regulation’). 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 RFAI was an importer related to the applicants 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, corresponding to 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%, corresponding to the rate of independent importers who had then participated in that investigation. The Commission stated that, during the dumping 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 (now Article 2(10) of Regulation 2016/1036), 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 concluded in the contested regulation that the injury found would recur if the anti-dumping measures were allowed to lapse. In reaching that conclusion, the Commission analysed various factors relating to the consumption of ferro-silicon in the European Union, to volumes, prices and market shares of the imports concerned, to imports from third countries not subject to anti-dumping measures, to the economic situation of the EU industry, to spare capacity, to trade flows, including those on third country markets, to the attractiveness of the EU market and to the future of those different markets. The Commission noted, in particular, that products from Russia were imported at prices that undercut the sales prices of the EU producers during the 2009-2012 period used in the examination of the likelihood of injury, which testified to the continuation of an injury.
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 the applicants’ products since the initial regulation entered into force.
17      The applicants brought the present action against the contested regulation in those circumstances.
18      By judgment of 17 March 2015, RFA International v Commission (T‑466/12, EU:T:2015:151), the General Court dismissed RFAI’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.
19      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 the applicants 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.
Procedure and forms of order sought
20      The applicants brought this action by an application lodged at the Court Registry on 27 June 2014. The defence, the reply and the rejoinder were lodged on 30 September 2014, 19 November 2014 and 7 January 2015 respectively.
21      By a document lodged at the Court Registry on 20 May 2015, Euroalliages sought leave to intervene in support of the Commission.
22      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, since content of that decision could determine the analysis of one of the grounds for annulment raised in the present case.
23      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.
24      Following the resumption of proceedings on 4 May 2017, the main parties were invited to submit observations on Euroalliages’ application to intervene. The main parties did not raise any objection to the intervention but, in their response, the applicants requested in particular that the confidentiality of some of the information contained in the application, the defence, the reply and the rejoinder, or the annexes thereto, be maintained with regard to Euroalliages. The applicants produced a non-confidential version of the documents in question
25      By order of 7 September 2017, the President of the Ninth Chamber of the Court granted Euroalliages leave to intervene and stated that, pursuant to Article 227(6) of the Rules of Procedure and in view of the date when the present action was brought and the date when the application for leave to intervene was made, being more than six weeks after publication in the Official Journal of the European Union of the notice relating to the action, Articles 115(1) and 116(6) of the Rules of Procedure of the General Court of 2 May 1991 continued to apply. Consequently, the documents exchanged until then during the written part of the procedure were not sent to the intervener, the intervener being able to submit its observations during the oral part of the procedure on the basis of the report for the hearing, a non-confidential version of which was to be prepared should the need arise.
26      By way of measure of organisation of procedure, the Court put written questions to the applicants and the Commission, to be answered in writing. The applicants and the Commission replied on 27 and 31 October 2017, respectively.
27      The main parties presented oral argument and replied to the Court’s oral questions at the hearing on 14 December 2017. By letter of the same date, Euroalliages informed the Court that it would not take part in the hearing.
28      The applicants claim that the Court should:
–        annul the contested regulation in so far as it concerns them;
–        order the Commission to pay the costs;
–        order the intervener to bear its own costs.
29      The Commission contends that the Court should:
–        dismiss the application;
–        order the applicants to pay the costs.
30      Euroalliages supports the form of order sought by the Commission.
Law
31      The applicants put forward three pleas in law in support of their action. In essence, they submit that, first, the Commission failed to comply with Article 2(9) of the basic regulation when determining their product’s export price, by refusing to take into account the fact that the applicants constituted a single economic entity with RFAI. Secondly, the Commission, still when determining the export price of their product, also infringed Article 11(9) and (10) of the basic regulation (now Article 11(9) and (10) of Regulation 2016/1036), by deducting the anti-dumping duties paid during the dumping investigation period corresponding to 2012 from the price of the first resale to an independent buyer in the European Union in order to calculate the constructed export price. The applicants claim that the Commission used in that respect a different methodology from that used in the interim review in order to reject the applicants’ 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. Thirdly, the applicants submit that the Commission made a series of manifest errors of assessment when analysing the likelihood of a recurrence of injury in the event that the anti-dumping measures affecting Russian products were allowed to lapse.
32      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
33      The applicants submit, alleging an error of law and a manifest error of assessment, that the Commission failed to draw the necessary conclusions from the fact that they formed a single economic entity with RFAI. They refer to recitals 61 to 69 of the contested regulation, from which it is clear that the Commission took account of the fact that RFAI was an importer related to the applicants since it applied the provisions of Article 2(9) of the basic regulation as a result. It should be recalled that, in such a case, those provisions make it possible to construct a reliable export price, at the EU frontier level, on the basis of the price at which the imported products are first resold to an independent buyer in the European Union, with the necessary adjustments.
34      The applicants state that the Commission nonetheless deducted from the price of the first resale to an independent buyer in the European Union all of RFAI’s costs and related profit margin, whereas it should have limited the deductions to the costs and profits relating to the phase following importation into the European Union. RFAI, it is submitted, carries out for the applicants all the commercial operations connected with the export of their product, including those connected with the product leaving Russia and beyond conveyed to the EU frontier, which should not have been taken into account.
35      The methodology followed by the Commission would account for what the applicants regard as a very high percentage of RFAI’s net turnover for sales in the European Union, used by the Commission to determine the selling, general and administrative costs. The Commission referred to the global costs of imports into the European Union, supplied by RFAI during the investigation. At least half of those costs are attributable to the pre-importation phase, not the post-importation phase, but although the applicants supplied detailed information during the investigation as to the nature and destination of their products, the relevant breakdown by phase — for which the applicants cannot be criticised for not having spontaneously provided — was not requested by the Commission. In addition, the Commission concedes, in its defence, that it also took into account costs incurred outside the European Union.
36      The applicants submit that, due to the existence of a single economic entity between themselves and RFAI, only part of the profit margin of 6% of net turnover also deducted by the Commission from the price of the first resale to an independent buyer should have been used by way of an adjustment when constructing the export price at EU frontier level. The applicants submit that the Commission used the profit margin of an unrelated importer whereas Article 2(9) of the basic regulation simply referred to ‘profits accruing’. Bearing in mind RFAI’s role within the single economic entity formed with the applicants, which concerned the pre-importation phase as well as the post-importation phase, only that part of the profit connected with the phase following importation into the European Union should have been taken into account when calculating the profit margin, in accordance with the allocation suggested by the applicants in their response to the final disclosure document that preceded the adoption of the contested regulation, namely approximately half of the profit. The applicants submit that the judgment of 10 March 2009, Interpipe Niko Tube and Interpipe NTRP v Council (T‑249/06, EU:T:2009:62), recognises the specific nature of the situation of a single economic entity in calculating a constructed export price.
37      The applicants put forward two possible scenarios. The first scenario is that the Commission denied the existence of a single economic entity between the applicants and RFAI in the present case, a position which they challenge. The second scenario is that the Commission based its assessment on the premiss that the existence of a single economic entity was irrelevant in determining the constructed export price. If that is the case, the Commission misconstrued the interpretation provided by the EU Courts 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), already referred to, and in that judgment. According to that interpretation, the existence of a single economic entity between the producer and importer should be taken into account when constructing the export price itself and not only, as the Commission asserts in recital 68 of the contested regulation, when making a fair comparison between the export price and the normal value pursuant to Article 2(10) of the basic regulation.
38      First of all, the Commission notes that the applicants do not dispute the need for a constructed export price in the present case due to the association between the applicants and RFAI. The Commission also states that it verified that RFAI performed all the functions of an importer to the European Union, which justified adjustments being made pursuant to Article 2(9) of the basic regulation in order to carry out the relevant calculation.
39      Next, the Commission states that, in the contested regulation, it did not definitively state an opinion on whether or not a single economic entity existed between the applicants and RFAI since, in the Commission’s view, that question is not relevant for the purposes of calculating a constructed export price.
40      The Commission also reiterates the position set out in recital 68 of the contested regulation, namely that the judgment of 10 March 2009, Interpipe Niko Tube and Interpipe NTRP v Council (T‑249/06, EU:T:2009:62), relied upon by the applicants, does not mean that adjustments used when carrying out the fair comparison between the export price and the normal value provided for under Article 2(10) of the basic regulation can also be used when calculating the constructed export price pursuant to Article 2(9) of that regulation. Lastly, the Commission recalls that the purpose of Article 2(9) is to determine a reliable export price at EU frontier level, whereas the purpose of Article 2(10) of the basic regulation is then to allow a comparison to be made between that export price and the normal value under similar conditions, if necessary making adjustments to one or the other. Prior to the comparison phase, there is no discretion provided under Article 2(9) of the basic regulation as to whether or not adjustments are necessary to determine the export price. When certain conditions are met, in particular when the importer and the exporter are linked, it is mandatory for the adjustments to be made, regardless of whether a single economic entity exists between the relevant parties.
41      As regards the adjustments made in the present case in calculating the constructed export price, the Commission contends that RFAI’s net turnover for imports into the European Union and the costs for those imports stem from the information provided by RFAI itself during the investigation, to which the Commission refers. Costs of imports to the rest of the world were not included. The applicants and RFAI did not supply data that allowed for any other calculation and, even in their reply, they merely made vague claims as to the allocation of RFAI’s costs between the pre-importation phase (‘more than half’; ‘at least half’) and the post-importation phase. The Commission observes that it also verified that RFAI performed all the functions related to imports into the European Union in order to avoid improperly selecting costs. The profit margin of 6%, already used during the original investigation and the interim review, corresponded to that of an unrelated importer and was used in compliance with a practice confirmed by the courts and taking into account the unreliability of the figures supplied by the applicants.
42      It must, first of all, be stated that the existence of a single economic entity between a third-country exporting producer and an entity 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 regulation on the existence of a single economic entity between RFAI and the applicants, because it noted there, in recital 61 thereof, that they were associated, within the meaning of Article 2(9). The applicants do not deny moreover that that provision applies to their situation, but criticise the way in which the adjustments were made by the Commission, which allegedly failed to take appropriate account of the fact that they formed a single economic entity with RFAI and of the functions the latter carried out apart from its role as importer of the applicants’ products in the phase following their arrival at the EU frontier.
43      Nonetheless, the applicants have failed to adduce evidence which would allow the distinctions, which they claimed, to be upheld.
44      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 a reliable 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.
45      However, while the information from the profit and loss account concerning the dumping investigation period corresponding to 2012, provided by the applicants or RFAI in response to the Commission’s questionnaire or more precise information provided subsequently during the investigation, referred to in paragraph 35 above, are indeed detailed in the sense that they identify a number of items — (for example, turnover, cost of products, export transport, export insurance, salaries and bonuses) according to the nature of the products (ferro-silicon under investigation and other products) and according to the destination of those products (independent customers in the European Union, related customers in the European Union, export to independent customers outside the European Union, export to related customers outside the European Union) — they do not make it possible to exclude with certainty, as regards the ferro-silicon under investigation sold to independent customers in the European Union, expenditure not covered by 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. In particular, for a number of items of expenditure mentioned in the reply, there is nothing to indicate the extent to which they also concerned operations prior to arrival at the EU frontier (for example, commissions, salaries and bonuses, financial expenses or income). As indicated in paragraph 35 above, the applicants indeed acknowledge that the breakdown between the costs of the various operations is not apparent in the light of the information provided during the investigation, while maintaining that the Commission ought itself to have requested from them information on that breakdown which they 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.
46      In those circumstances, the applicants cannot validly complain that the Commission took into account the data supplied during the investigation concerning the dumping investigation period corresponding to 2012, in particular those of the profit and loss account, for the purposes of determining the adjustments to be made in terms of the selling, general and administrative costs of importation into the European Union in order to construct the export price on the basis of the first resale to an independent buyer, without having deducted from the latter a proportion attributable to operations prior to the arrival at the EU frontier. In that regard, as the Commission stated in its written response to a written question from the Court, which is not challenged by the applicants, the final disclosure document that preceded the adoption of the contested regulation contained the rate of turnover representative of those selling, general and administrative costs which the Commission envisaged adopting. While some of the applicants’ observations in response to that document related to constituent elements of those costs and led to certain adjustments explained in recitals 84 to 87 of the contested regulation, concerning in particular loan interest or taxes paid in Switzerland (which themselves resulted in the downwards revision of RFAI’s net turnover rate selected to represent those costs) it must be found that those observations did not indicate precisely how the costs should be allocated between operations prior to arrival at the EU frontier and operations between that point and the first resale to an independent buyer on the Member States’ territory, whereas the applicants could have provided such indications. It must be pointed out incidentally that although the new rate of turnover representative of selling, general and administrative costs selected following the applicants’ observations is not included in the contested regulation itself for reasons of confidentiality, it was communicated and explained to the applicants within two days of the contested regulation being adopted, as the Commission set out in its response to the question from the Court. In addition, as regards the costs allocation claimed by the applicants, even if it were claimed in good time, the contention set out in the reply that more than half the value of the items of cost selected by the Commission should be allocated to the operations which took place before arrival at the EU frontier is far too vague and unsubstantiated to be upheld. The few examples of the types of cost mentioned by the applicants which concerned both types of operation, before and after arrival at the EU frontier, are indeed insufficient for the purposes of determining the allocation of those costs between those operations.
47      As regards, next, the profit margin of 6% of RFAI’s net turnover adopted by the Commission, corresponding to the profit margin of independent importers, representing RFAI’s profit also to be taken into account in respect of the adjustments in order to construct the export price on the basis of price of the first resale to an independent buyer in the European Union, the applicants’ 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. Although, as the applicants argue, the second subparagraph of Article 2(9) of the basic regulation refers in a general manner to ‘profits accruing’, in respect of the adjustments to be made in constructing a reliable export price, without imposing a priori a particular methodology to determine that profit margin, and although the applicants argued, in response to the final disclosure document that preceded the adoption of the contested regulation, that only about a half of RFAI’s total profit should be allocated to the operations after arrival at the EU frontier, those factors cannot reduce the 6% rate chosen in order to evaluate RFAI’s profit, linked to those operations, on the basis of its net turnover.
48      First, the distinction claimed by the applicants is not a priori justified as a matter of principle as regards a profit margin which, as in the present case, is derived from observing the activity of independent importers which, except in special cases, take over the products at the EU frontier.
49      Secondly, even if RFAI’s profit margin itself were taken as the starting point, the ratio which the applicants propose using — approximately half that margin — was explained by them unconvincingly, on the basis of an extrapolation based on the observation that the cost of their exported products represented 90% of their export turnover, with that cost and turnover supposed to represent 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, respectively. That methodology 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.
50      In those circumstances, the Commission was entitled to find, in recital 69 of the contested regulation, that it lacked the evidence which would have enabled it, if necessary, to adopt a lower profit margin for RFAI. The Commission was, therefore, perfectly justified in choosing as a profit margin, in respect of the adjustments in order to construct the export price, the margin of independent importers, as acknowledged in the judgment of 5 October 1988, Canon and Others v Council (277/85 and 300/85, EU:C:1988:467, paragraph 32), since the data provided by entities associated with the producer, who are responsible in particular for importation into the European Union, may be influenced by that association, as was stated in particular in the judgment of 17 March 2015, RFA International v Commission (T‑466/12, EU:T:2015:151, paragraph 68 and the case-law cited). The Commission could, therefore, properly choose the 6% profit margin used during the original investigation, having regard to the absence of cooperation of such importers in the review investigation, as set out for example in recitals 15 and 62 of the contested regulation.
51      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 applicants in support of their 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 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 applicants maintain, 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).
52      It follows from the foregoing that the applicants’ first plea in law, alleging an infringement of Article 2(9) of the basic regulation, must be rejected since the Commission has not made the error of law or manifest error of assessment alleged by them.
The plea alleging an infringement of Article 11(9) and (10) of the basic regulation in the construction of the export price
53      The applicants submit that, in calculating the constructed export price, the Commission should not have deducted the anti-dumping duties paid by RFAI during the dumping investigation period corresponding to 2012, since they were fully reflected in the resale prices in the European Union. The Commission therefore infringed Article 11(10) of the basic regulation which states that where it is decided, in the context of a review, to construct the export price in accordance with Article 2(9) of the basic regulation, the Commission must 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. In addition, in its assessment of the actual impact of anti-dumping duties on the resale prices, the Commission did not assess the actual impact on the basis of the resale price identified at the time of 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 use the same methodology as that used in the review investigation that led to the interim regulation, and this without providing reasons. Consequently, the Commission also infringed Article 11(9) of the basic regulation, which provides that, in all review investigations carried out pursuant to Article 11, the Commission must, provided that circumstances have not changed, apply the same methodology as in the investigation that led to the duty, with due account being taken of Article 2 of that regulation.
54      The applicants recall that, in the interim regulation, the Commission stated, in recital 25:
‘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 anti-dumping duty rate] 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.’
55      In this case, in their comments on the final disclosure document that preceded the adoption of the contested regulation, the applicants provided the Commission with conclusive evidence that the resale prices of their 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 dumping investigation period corresponding to 2012 that led to the contested regulation. They increased by more than 100% between the two periods.
56      In reply to the arguments raised by the Commission in its defence, the applicants further state, in essence, that Article 11(10) of the basic regulation requires only that the resale prices to the first independent buyer in the European Union include the anti-dumping duty in order for that duty not to be deducted from those prices in calculating the constructed export price; this would necessarily be the case in the absence of any compensatory arrangement with that buyer, when the resale price charged exceeds the resale price used during the investigation that led to the initial regulation by more than the level of the anti-dumping duties. The applicants also reply, as regards the question of the change of methodology in constructing an export price, that the change in production costs does not constitute a change in circumstances within the meaning of Article 11(9) of the basic regulation warranting the use of a new methodology for calculating that price.
57      In relation to the alleged infringement of Article 11(10) of the basic regulation, the Commission takes the view that, as it stated in recital 71 of the contested regulation, in 99% of the transactions examined in the dumping investigation period corresponding to 2012, the anti-dumping duties were not fully reflected in the resale prices after importation into the European Union. According to the Commission, the mere circumstance of an increase in the resale prices as described by the applicants does not mean that the increase fully reflects the anti-dumping duty. It could also be due to the increase in production costs, which had indeed increased greatly since the investigation that led to the initial regulation. As stated in recital 83 of the contested regulation, the Commission found that during the dumping investigation period corresponding to 2012 the production costs added to the anti-dumping duties were not covered by the EU resale price. Consequently, even an increase of more than 100% on the resale price, as the applicants allege, does not prove that the anti-dumping duties were fully reflected in that price when the costs of production had increased significantly.
58      In relation to the alleged infringement of Article 11(9) of the basic regulation, caused by a change in methodology in assessing whether or not the anti-dumping duty was fully reflected in the EU resale price when calculating the constructed export price, the Commission observes that Article 11(10) does not prescribe any specific methodology in that regard. The Commission maintains that it applied the same methodology in the investigations that led to the initial regulation, the interim regulation and the contested regulation, but in different factual circumstances. There was, therefore, no need for the Commission to justify a change in methodology. In the alternative, the Commission contends that, if it were found to have applied a different methodology, that would be justified, since Article 11(9) of the basic regulation requires the same methodology to be applied only to the extent that the circumstances have not changed. Lastly, the Commission contends that the reasoning behind its assessment of whether or not the anti-dumping duties had been reflected in the EU resale prices, which took into account the current costs of production in Russia, as stated in recital 83 of the contested regulation, is sufficient to meet its obligation to state reasons.
59      The Court points out that the contested regulation stems from an expiry review pursuant to Article 11(2) of the basic regulation (now Article 11(2) of Regulation 2016/1036). Article 11(10) of that regulation states that when the Commission decides, in that context, to construct the export price in accordance with Article 2(9), it must calculate that 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, which the applicants claim is established. In addition, Article 11(9) of the basic regulation provides, in particular, that, in all review investigations carried out pursuant to Article 11, the Commission must, provided that circumstances have not changed, apply the same methodology as in the investigation which led to the duty, with due account being taken of Article 2. The applicants further maintain that in the present case the circumstances have not changed.
60      In that regard, it has been held that the exception to using the same methodology for the review investigation and the initial investigation had to be interpreted strictly, reflecting the wording and purpose of the provision authorising that exception (see, to that effect, judgment of 18 September 2014, Valimar, C‑374/12, EU:C:2014:2231, paragraphs 40 to 43 and the case-law cited)
61      In the present case, the applicants do not, however, claim that for the expiry review investigation the same methodology should be applied as in the initial investigation, but rather the same methodology as in the review investigation that led to the interim regulation. The question is whether the anti-dumping duties, which by definition were not in force during the initial investigation period, have been reflected in the resale price.
62      Without it being necessary to rule on the applicability of Article 11(9) of the basic regulation, as such, to the present case, it must be noted that, in the context of applying Article 11(10) of that regulation, in particular in order to ascertain whether the anti-dumping duties must be deducted from the price of the first resale to an independent buyer in the European Union in order to calculate the constructed export price, the same principles as those derived in the context of applying Article 11(9) may be applied. In those different cases, it is a question of ensuring 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.
63      In that regard, a considerable change in the costs of producing the products the subject of an expiry review, between the initial investigation period or an interim review period and the expiry review period, constitutes a change in circumstances justifying, if necessary, a change in methodology in order to construct an export price after the application of anti-dumping duties to the product concerned, which meets the objective mentioned in paragraph 62 above. Indeed, 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.
64      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 Commission Notice concerning the reimbursement of anti-dumping duties (OJ 2014 C 164, p. 9), put forward by the applicants at the hearing, 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), also relied on by the applicants at the hearing. 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.
65      The Court points out that the change in production costs may, for the purposes of determining whether the anti-dumping duty is duly reflected in the resale price, if necessary be taken into account in the context of an interim review investigation, an expiry review investigation or a refund investigation, not only on the occasion of an ‘anti-absorption investigation’ as provided for in Article 12 of the basic regulation (now Article 12 of Regulation 2016/1036) as the applicants implied at the hearing. Although those different types of investigation correspond to different procedural contexts and may indeed result in different measures, in so far as the substantive issue of whether or not the anti-dumping duties are reflected is concerned the parameters of analysis are identical.
66      In the present case, in the context of the interim regulation, the Commission did not note a change in the production costs between the investigation period that led to the initial regulation and the period chosen for the purposes of the interim review. It could, therefore, in the light of its discretion, simply verify that the new resale prices in the European Union charged by RFAI on behalf of the applicants were largely more than 22.7%, the value of the anti-dumping duties, higher than those found in the first of those periods, in order to conclude from this that those duties were duly reflected in those new prices and not to deduct them in constructing the export price.
67      By contrast, in the context of the investigation that led to the contested regulation and in recital 83 thereof, the Commission found that the production costs had increased significantly without being disproved as to the substance by the applicants, 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 RFAI on behalf of the applicants during the dumping investigation period corresponding to 2012, the Commission was justified in not taking as the basis of analysis the resale prices found during the investigation that led to the initial regulation, but rather the production costs recorded in 2012, even if that constituted a change in methodology as is apparent from recital 83 of the contested regulation.
68      In a situation where, as the Commission noted in recital 83 of the contested regulation, 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.
69      Even the increase in the resale prices in the European Union of 100% between the investigation period that led to the initial regulation and the dumping investigation period corresponding to 2012, put forward by the applicants, 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 63 above, if the production costs have increased by more than 100%, that is to say have more than doubled, for the prices charged 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.
70      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 dumping investigation period corresponding to 2012, since it was not proven that the anti-dumping duty was duly reflected in the first of those prices.
71      It follows from the foregoing that the second plea in law raised by the applicants, alleging the infringement of Article 11(9) and (10) of the basic regulation, is unfounded.
The plea alleging manifest errors of assessment in analysing the likelihood of a recurrence of injury if the anti-dumping measures were allowed to lapse
72      The applicants claim that in order to justify retaining the anti-dumping measures affecting imports of ferro-silicon originating in Russia, the Commission had to show that, in the absence of those measures, it was probable that there would be a major increase in those imports, which was likely to lead to a recurrence of material injury to EU industry. In seeking to show this, the Commission made six manifest errors of assessment.
73      As a preliminary point, the Commission states that, in the assessment of the likelihood of a continuation or recurrence of injury during an expiry review investigation, a two-step approach is taken: first, the Commission examines the situation in the EU market and industry, and secondly, the actual likelihood of continuation or recurrence of injury should the anti-dumping measures be repealed. Many elements are taken into account in the assessment, none of which has decisive importance by itself. What matters is the overall assessment, including as to the likelihood of a given situation arising. In their application, the applicants present a number of elements in isolation and assume that they are decisive with regard to the operative part of the contested regulation.
74      According to the applicants, the Commission’s first manifest error of assessment relates to spare Russian production capacity. The applicants submit that, in recital 93 of the contested regulation, the Commission acknowledged that, given the possibility of using the production equipment concerned to produce different ferro-alloys and the use of some of that equipment for products other than ferro-silicon, the spare capacity could be conservatively assessed as ‘at least 120 000 tonnes’ rather than the 267 000 tonnes referred to in the final disclosure document that preceded the adoption of the contested regulation. However, in recitals 149 to 153 of the contested regulation, the Commission used the volume of 267 000 tonnes in determining the likelihood of Russian imports increasing and of the recurrence of corresponding injury to EU industry. This led to the Commission estimating spare Russian production capacity at one third of the demand for ferro-silicon in the European Union in 2012 whereas in fact it represented only 15%.
75      On that point, the Commission explains that it did indeed identify 120 000 tonnes of spare Russian production capacity, but that that figure represented the immediate spare capacity. The production equipment currently designated for the production of other ferro-alloys, which could easily be converted back to the production of ferro-silicon, could produce the additional 147 000 tonnes, leading to the estimated total spare capacity of 267 000 tonnes that was taken into account. The arguments put forward by the applicants during the investigation that led to the contested regulation about the difficulties of switching the equipment from the production of other ferro-alloys to the production of ferro-silicon are not convincing; neither is the argument put forward in the reply that the production of those other alloys is in response to market demand. Even taking into account the estimate for spare capacity that is the more favourable to the applicants, namely the 120 000 tonnes, the conclusion reached as to the likelihood of a recurrence of injury should the anti-dumping measures be allowed to lapse would not change. The contested regulation does not, therefore, contain any contradictions as to spare Russian production capacity.
76      The applicants maintain that the Commission made a second manifest error of assessment in finding, in recital 155 of the contested regulation that if, as a result in particular of the expiry of the anti-dumping measures, there was a shift in imports of the spare Russian volumes to the European Union at dumped prices, this ‘would be able to exercise pressure on the EU industry’s sales prices and make it lose market share and as a consequence would negatively impact the EU industry’s financial performance which is still vulnerable’. Even supposing that all 120 000 tonnes of spare Russian production capacity were diverted to the European Union, it should be noted that, from 2009 to 2012, imports to the European Union from third countries not subject to anti-dumping measures increased dramatically from 380 000 tonnes in 2009 to 600 000 tonnes in 2011, amounting to 71% of consumption. Given that the market share of the EU industry remained relatively stable from 2010, going from 21 to 25% of consumption, it should be concluded from this that the anti-dumping measures taken against Russian products benefited mostly the third countries and that, conversely, an increase in Russian imports as a result of the lifting of those measures would be most likely to affect third-country imports and not the market share of EU industry, which in any event would be unable to meet the whole of the demand within the European Union.
77      The Commission notes, first, the significance of the 120 000 tonnes capable of being immediately exported to the European Union in the light of the volumes actually exported to the European Union at dumped prices during the investigation period that led to the initial regulation (112 000 tonnes), which justified the original anti-dumping measures, and in view of the volumes observed in 2012 (40 000 tonnes). When added to that figure, the immediate spare capacity of 120 000 tonnes makes a total volume of 160 000 tonnes of potential sales which represents 83% of the EU industry’s sales to independent buyers in the European Union and 21% of total EU demand. Secondly, the Commission notes that the applicants speculate on the displacement of market share should the anti-dumping measures be repealed. Market shares are only one element in the complex evaluation of the likelihood of recurrence of injury. The health of the European ferro-silicon industry improved significantly as a result of the introduction of the anti-dumping measures, despite a less dynamic economic situation than that during the investigation period that led to the initial regulation. The Commission refers to various figures in that regard. Thirdly, the Commission explains that the increase in third-country imports is a result of both the insufficient capacity of the European industry to meet growing demand within the European Union and the introduction of the anti-dumping measures. The Commission notes that imports from third countries did, however, start to show a slight decline in 2012. Fourthly, the Commission observes that, since the introduction of the anti-dumping measures, the EU industry’s market share increased from 17 to 25% in 2012. It is that period that needs to be taken into account and not only the years 2010 to 2012, as the applicants have done. The market share of EU producers, which has increased like that of third-country producers, could, therefore, be affected as much as theirs by an increase in imports from Russia. Even if the Russian imports were to replace only imports from third countries, as they would occur at dumped prices, they would be likely, in view of the other elements to be taken into account, to cause injury to the EU industry, which is not the case with current imports from third countries not involving dumping.
78      According to the applicants, the Commission more generally failed to draw the appropriate conclusions from the increase it observed in imports from third countries, which contributed to the continued vulnerability of the EU industry, and also failed to take into account the 5.4% customs tariff applicable to Russian imports which did not affect imports from Norway and Iceland. Those failures constitute a third and fourth manifest error of assessment.
79      The Commission replies that imports from the third countries are carried out fairly without dumping (their prices even being slightly higher than EU industry prices) and therefore they do not cause injury to the EU industry. The causes of the continued vulnerability of the EU industry are due to the general economic situation.
80      The Commission also replies that the impact of customs duties is irrelevant to the examination of the likelihood of a recurrence of injury should the anti-dumping measures be allowed to lapse. In particular, the fact that customs duties were not applied to imports from Norway and Iceland but were applied to imports from Russia during the investigation period that led to the initial regulation did not prevent Russian imports at dumped prices from causing injury to the EU industry at the same time.
81      According to the applicants, the Commission made a fifth manifest error of assessment in finding, in recital 153 of the contested regulation, that Russian dumping practice was structural. The applicants put forward various factors, in particular the preliminary results of an anti-dumping investigation carried out in the United States, submitted to the Commission, where a zero dumping margin was calculated for the period 1 July 2012 to 30 June 2013. The assessment by the United States authorities also suggests that no anti-dumping measures will be imposed on imports of Russian ferro-silicon into the United States and that a US market therefore exists, countering the Commission’s finding that the EU market is likely to be the only really attractive market for Russian exporters.
82      The Commission replies that, during both the investigation period that led to the initial regulation (October 2005 to September 2006) and that which led to the contested regulation (2012), there was found to be a dumping margin on imports from Russia (for the first period 17.8 or 22.7%, depending on the undertakings, and 43% for the second period). Since 2007, dumping has remained a constant feature. The refund investigations, which enabled a negative dumping margin to be identified for the first refund investigation period, were not carried out on the same basis or with the same objectives as review investigations which would lead to an anti-dumping regulation. The sales channels examined could be different, as could the group of producers concerned. In addition, the document from the US authorities submitted by the applicants contains only a preliminary assessment that did not make it possible to draw any conclusions as to the existence of structural dumping as noted during the two investigation periods referred to by the Commission.
83      Lastly, the applicants submit that the Commission made a sixth manifest error of assessment in overlooking the information they provided during the investigation that led to the contested regulation in order to show the importance, for them, of the US, Japanese and Korean markets. The long-term supply contracts entered into by Russian exporters for those markets, the volumes of which were notified to the Commission, together with the prospects for growth in those markets —acknowledged in recital 45 of the contested regulation by the reference to future production capacity of 370 000 tonnes in Malaysia — make it unrealistic to suppose, as the Commission does, that the volumes in question would be redirected to the EU market if the current anti-dumping measures were lifted. Future production in Malaysia would not be able to displace Russian exports on the Asian markets, given the strength of their growth, but could instead be directed in part to the EU market.
84      The Commission replies that the long-term contracts relied on by the applicants were not provided to it during the investigation, and that it was unable to determine to what degree they were binding. In addition, according to the Commission, competition would increase in Asian markets due in particular to installation of new production capacity in Malaysia and, in the absence of substantial growth of demand in Russia itself, it was reasonable to believe that Russian exports would be directed towards the European Union at a volume similar to that prior to the imposition of the anti-dumping measures.
85      First of all, for the purposes of examining the merits of the applicants’ arguments concerning the six alleged manifest errors of assessment, the Court finds that the Commission correctly states that the assessment of the likelihood of a continuation or recurrence of injury which it carries out in an expiry review leads it to take many elements into account, of which only the overall assessment is relevant, including in order to determine the likelihood of a given situation arising.
86      Article 3(5) of the basic regulation (now Article 3(5) of Regulation 2016/1036), which forms part of the provisions relating to the determination of whether there is injury, provides that the examination of the impact of the dumped imports on the EU industry concerned is to include an evaluation of all relevant economic factors and indices having a bearing on the state of that industry. That provision contains a list of the various factors which may be taken into account and states that that list is not exhaustive and that decisive guidance is not necessarily given by any one or more of those factors. Article 3(5) of the basic regulation must be read in the light of Article 3(1) of that regulation (now Article 3(1) of Regulation 2016/1036) which provides that the term ‘injury’ is, unless otherwise specified, to include, inter alia, threat of material injury to the EU industry. Similarly, Article 3(9) of the basic regulation (now Article 3(9) of Regulation 2016/1036), which provides details on how to evaluate whether there is a threat of material injury, mentions various factors while stating that no one factor by itself can necessarily give decisive guidance, but that it is the totality of the factors considered which must, as the case may be, lead to the conclusion that further dumped exports are imminent and that, unless protective action is taken, material injury will occur. In those circumstances, when evaluating, as in the present case, the threat of a continuation or recurrence of injury to the detriment of the EU industry in the event of the removal of the anti-dumping measures, the Commission must indeed carry out an overall assessment of the relevant factors (see, to that effect and by analogy, judgment of 28 November 2013, CHEMK and KF v Council, C‑13/12 P, not published, EU:C:2013:780, paragraphs 55 and 56).
87      In the present case, it is apparent from the contested regulation in particular, first, that there was a 43% dumping margin for the applicants’ ferro-silicon imports into the European Union during the dumping investigation period corresponding to 2012 (recital 87 of the contested regulation), which is established at this stage since the applicants’ first two pleas in law have been rejected and, secondly, there was also a dumping margin of at least 13% during the second refund investigation period from 1 October 2009 to 30 September 2010 (recital 88 of the contested regulation and recital 40 of the interim regulation), further to a dumping margin of 22.7% during the investigation period that led to the initial regulation from 1 October 2005 to 30 September 2006 (recital 153 of the contested regulation and recital 62 of the initial regulation). It is also apparent from the contested regulation, as regards the dumping investigation period corresponding to 2012, that there was an immediate spare Russian capacity of at least 120 000 tonnes for a Russian production of 633 000 tonnes, that is an 84% capacity utilisation rate, alongside a 50% decrease in domestic demand since 2002 and 73% of output being exported from which it may be concluded that Russian producers were highly dependent on exports (recitals 93 to 100 of the contested regulation). Factors external to the European Union identified in the contested regulation also include the increase in production in Malaysia, which was to have reached 370 000 tonnes in 2014 and represent a source of increased competition for Russian producers on the Asian markets, likely to render the EU market more attractive for them (recitals 45, 46, 101, 102 and 104 of the contested regulation). In addition, it is noted that the prices of the ferro-silicon produced by the applicants and sold to independent customers in the European Union show, during the dumping investigation period corresponding to 2012, undercutting ranging from 6 to 39% in relation to the prices charged by the EU producers for the same customers (recital 117 of the contested regulation), whereas the prices of products from third countries not subject to anti-dumping duties observed are much closer to those prices (comparison of tables 3, 4 and 10 of the contested regulation). It is also noted that the market share of ferro-silicon imports into the European Union was around 70%, while production within the European Union did not reach the starting level of 2003 and production capacity utilisation was only 70% (recitals 118, 122 and 123 of the contested regulation). It is stated that the EU industry’s recovery from the injury caused by the initial dumping was recent and remained fragile, in particular as regards the financial situation, notwithstanding the anti-dumping measures in force (recitals 128 to 134 of the contested regulation). It is also stated that consumption within the European Union was still lower than in 2007 as a result of declining steel production, which was challenging for ferro-silicon producers in the European Union (recitals 110 and 142 of the contested regulation).
88      The factors identified by the Commission in the contested regulation which, on the other hand, would tend to support the applicants’ interpretation, that is to say that the non-renewal of the anti-dumping measures would not cause injury to the EU industry, are essentially as follows. The market share of Russian imports into the European Union fell considerably, down to 5.4% during the dumping investigation period corresponding to 2012, as against 18% during the investigation period that led to the initial regulation (from October 2005 to September 2006) (recital 112 of the contested regulation and recital 72 of the initial regulation). The prices of the ferro-silicon produced by the applicants sold to independent customers in the European Union increased by 31% from 2009 to 2012 (recital 114 of the contested regulation). Production in the European Union increased considerably, by 177%, between 2009 and 2012 (recital 122 of the contested regulation). Sales of the EU industry within the European Union to independent customers also increased very significantly during that period, by around 100% (recital 124 of the contested regulation), so that its market share reached 25% in 2012 (recital 125 of the contested regulation).
89      In the context of the plea for annulment examined at present, the applicants also advance the following arguments, and it must be examined to what extent they ought to have led to a different assessment of the factors chosen by the Commission to find that injury was likely to recur.
90      First of all, as set out in paragraph 74 above, the applicants submit that the Commission selected a spare capacity level for Russian producers which was manifestly too high, 267 000 tonnes instead of 120 000 tonnes, failing to take account of the fact that some of the production equipment concerned did not represent a reserve, but was used for other products. In that part of the contested regulation concerning the analysis of the likelihood of a continuation or recurrence of dumping — specifically that part of the contested regulation concerning the trend in imports should the anti-dumping measures in force be repealed, namely that part evaluating, in those circumstances, the likelihood as regards new volumes entering the European Union at dumped prices — the Commission distinguished, as is apparent from recitals 93 and 94 of the contested regulation, which it confirmed at the hearing, between an immediate unused spare capacity of 120 000 tonnes (a conservative assessment taking into consideration the actual spare capacity) and a possible additional capacity of 147 000 tonnes which was capable of being mobilised in the longer term by converting production units used for other ferro-alloys back to ferro-silicon production. Recital 94 clearly states, however, that only the actual spare capacity was taken into consideration. Nevertheless, in the part of the contested regulation concerning the analysis of the likelihood of the recurrence of injury, in recital 149, the Commission adopted without qualification the spare capacity level of 267 000 tonnes — that is the addition of the 120 000 tonnes of unused capacity to the 147 000 tonnes corresponding to the capacity used for the production of other ferro-alloys — as grounds, alongside considerations of trade flows of the Russian producers, the attractiveness of the EU market and the pricing behaviour of the Russian producers, for its assessment that there would probably be a recurrence of injury if the anti-dumping measures were to be discontinued (recitals 149 to 156). In so doing, the Commission in fact used two evaluations of the Russian producers’ spare capacity, or at least two different approaches for that same parameter, which appears questionable. In addition, in evaluating the likelihood of a recurrence of injury, it did not sufficiently substantiate its assessment that all of the Russian producers’ production capacity designated for ferro-alloys other than ferro-silicon could be converted back to that product, since it did not identify particular circumstances which could justify this. At the hearing, in answer to a question from the Court, the Commission indeed conceded that a ‘part’ of that production capacity could be designated for ferro-silicon and it was possible that it would also continue to be designated for other products.
91      However, the inadequacy of the Commission’s analysis as regards the Russian producers’ spare capacity found in paragraph 90 above would not be sufficient to warrant annulment of the contested regulation if, in the particular circumstances of the case, it could not have had a decisive effect on the outcome (see, to that effect, judgments of 14 May 2002, Graphischer Maschinenbau v Commission, T‑126/99, EU:T:2002:116, paragraph 49, and of 14 December 2005, General Electric v Commission, T‑210/01, EU:T:2005:456, paragraph 42). In that regard, the applicants do not dispute, as regards the Russian producers’ spare capacity, the level of 120 000 tonnes chosen in that part of the contested regulation concerning the change in the likelihood of entry of new volumes of ferro-silicon from Russia if the anti-dumping measures were to be discontinued. The Court must, therefore, examine whether or not, were that level alone used and in the light of the other arguments put forward by the applicants, the contested regulation is still justified to the requisite legal standard, in that it concludes that a recurrence of injury is likely in such a case. As stated in paragraphs 85 and 86 above, it is following an overall assessment of the relevant factors that it may be determined whether or not there is the threat of a continuation or recurrence of injury to the detriment of the EU industry in the event that the anti-dumping measures in force are removed, and no one factor taken into consideration is necessarily decisive. Consequently, if it is true that, were the 120 000-tonne spare capacity level of Russian production alone used and in the light of the other arguments put forward by the applicants, the contested regulation is still justified by the grounds set out therein, the Commission’s taking into account of the 267 000 tonnes in recital 149 of the contested regulation, without any particular justification, will not have been decisive.
92      As set out in paragraph 76 above, the applicants submit that a possible increase in Russian exports to the European Union would, if the anti-dumping measures were repealed, be to the detriment of the market share held by the third-country exporters, but not to the EU industry’s market share. The applicants state that the EU industry’s market share remained relatively stable from 2010, whereas the third-country exporters’ market share increased considerably. The Court understands that argument as meaning that the EU industry now had as it were a protected market share resisting competition from imports. However, that vision is purely speculative and it is possible to observe, as the Commission does, that while the EU industry was able, to some extent, to resist the third-country imports, without moreover benefiting from the same sales growth, that is probably because the third-country exporters charged prices little different from those of the EU industry, as is apparent from comparing tables 4 and 10 of the contested regulation. It is, therefore, highly likely that a repeal of the anti-dumping measures in respect of the Russian imports, charged at lower prices, would have affected at least as much the EU industry’s market share as the third-country exporters’ market share, and this to a considerable extent. This is because, as the Commission set out in its argument summarised in paragraph 77 above, the Russian exporters would have been able — without even taking into account possible transfers of volumes from their other markets, and using only their immediate spare capacity of 120 000 tonnes — to offer 160 000 tonnes of ferro-silicon on the EU market, namely more than 20% of demand, that is to say at an even higher level than the 18% established during the investigation period that led to the initial regulation.
93      Even if the level of 33% of EU demand, mentioned in recital 149 of the contested regulation, cannot be accepted because it is the result of taking into account a spare capacity excessively valued at 267 000 tonnes, the level of more than 20% which arises from taking into account a spare capacity of 120 000 tonnes remains very significant, as the Commission correctly argues. Even if a breakthrough of the Russian products affected equally the EU industry’s and the third-country exporters’ market shares, the EU industry’s share would have fallen from 25 to 17%, that is to say it would have returned to the level observed at the time when the anti-dumping measures were imposed, in other words to the level stemming from the injury caused by the dumping which had at that time been found. The applicants’ argument that the EU industry would not be affected by an increase in the imports from Russia cannot, therefore, be upheld.
94      The applicants also submit, as set out in paragraph 78 above, that the vulnerability of the EU industry is the result above all of the imports from third countries, in particular those from Norway and Iceland, which enter free of customs duties, whereas the Russian imports are subject to a 5.4% customs tariff. However, the extent to which imports from third countries may have contributed to a certain vulnerability of the EU industry is of little relevance. What matters, in analysing the EU industry’s economic situation, is its state in the light of a number of factors listed in Article 3(5) of the basic regulation, such as the level of sales and profits or productivity. In addition, it was ascertained in the context of the initial regulation that the EU industry had, because of the anti-dumping practices taken into account in that regulation, suffered material injury, to which the imports from Russia had then contributed. Even though it was accepted in recital 128 of the contested regulation that the EU industry was recovering from the past dumping practices, it is stated there that the recovery is recent and a certain decline in some injury indicators was observed during the dumping investigation period corresponding to 2012, which is explained in particular in recital 134 of that regulation. In the light of those factors, the Commission was able to state, in recital 128 of the contested regulation, that that positive development took place under the protection of the anti-dumping measures in force, and that should the measures be repealed, the impact of the actual dumping margins, 43% in the present case, on the EU industry’s economic situation would be significant. As regards the fact that the imports from Russia are subject to customs duties, it is apparent from recital 115 of the contested regulation that this was taken into account in calculating the price undercutting by imports from Russia into the European Union in relation to the prices of the EU industry for the same market. Accordingly, the prices of the Russian imports adopted included the customs duties and the ‘customs duties effect’ was used, rather, in a manner favourable to the applicants. The fact that, notwithstanding those customs duties, the prices of the imports from Russia remained, in 2012, at a level 6 to 39% below the EU industry’s prices (undercutting), as stated in recitals 117 and 153 of the contested regulation, shows that those imports are not curbed in relation to the imports from certain third countries not subject to customs duties, sold in the European Union at prices close those of the EU industry. The applicants’ arguments examined in the present paragraph cannot, therefore, be upheld.
95      The applicants also dispute, as set out in paragraph 81 above, the Commission’s statement that the imports from Russia are characterised by a dumping practice which was structural. However, as already stated in paragraph 87 above, as regards imports into the European Union, it is apparent from the initial regulation that the dumping margin of the applicants or other Russian producers was 17.8 or 22.7% over a one-year period covering part of 2005 and 2006. In addition, it is apparent from the interim regulation that the applicants’ dumping margin was at least 13% over a one-year period covering in part the years 2009 and 2010. Lastly, it is apparent from the contested regulation that their dumping margin was 43% in 2012. Those evaluations are confirmed at this stage, since the applicants’ actions against the initial regulation and the interim regulation and also their pleas in law concerning the assessment of the dumping margin in the context of the present action for annulment of the contested regulation have been dismissed. The only tangible element to the contrary put forward by the applicants is the existence of a negative dumping margin, thus the absence of dumping, during a one-year period covering in part 2008 and 2009, found in the first decisions on RFAI’s refund applications mentioned in paragraph 7 above. A possible final determination, by the US authorities, that there was no dumping of the applicants’ products exported to that country, in addition to not having been confirmed before the contested regulation was adopted, cannot in any event prejudge conduct concerning the European Union. Consequently, in the light of the finding that there had repeatedly been dumping practices during three one-year periods sufficiently spaced out over almost eight years and only a single one-year period without dumping in that same period, the Commission was able, without making a manifest error of assessment, to state that the Russian exporters’ dumping practices seemed to be structural. In addition, since no final results from the anti-dumping proceedings in progress in the United States were available before the contested regulation was adopted, the Commission could not speculate as to the level of the applicants’ exports to that country. The applicants’ arguments examined in the present paragraph cannot, therefore, be upheld either.
96      Lastly, the applicants submit, in essence, as set out in paragraph 83 above, that the third-country markets, in particular the US, Japanese and Korean markets, are a priority for Russian producers and that, in the light of the long-term contracts concerning them, sales to those markets would not be redirected to the European Union, which might on the contrary receive new imports from Malaysia. However, as the applicants acknowledge in the reply, the contracts in question were not produced during the administrative procedure, with only the annual quantities exported in the context of those contracts to the three markets mentioned above among the data supplied to the Commission. In those circumstances, it is not proven that forward-looking information was supplied to the Commission, which was not obliged to ask the applicants to provide such information, contrary to what they claim. In that regard, it must be borne in mind that the third subparagraph of Article 11(2) of the basic regulation (now the third subparagraph of Article 11(2) of Regulation 2016/1036) provides that, during expiry review investigations, the competent institution’s conclusions must take due account of all relevant and duly documented evidence presented in relation to the question of whether the expiry of measures would be likely, or unlikely, to lead to the continuation or recurrence of dumping and injury, which means that interested parties wishing the Commission to take into account in that regard a consideration put forward by them must themselves duly document that consideration. Moreover, unless the contrary has been shown, if those contracts were already in force during the period 2009-2012 selected for the purposes of examining the likelihood of injury, they could not a priori have had an impact on the possible reorientation of the Russian exporters’ unused spare capacity to the European Union, since they were performed using capacity which was by definition used. The applicants’ arguments examined in the present paragraph cannot, therefore, be upheld either.
97      It is clear from the analysis set out in paragraphs 90 to 96 above that, even when only a spare capacity for the Russian producers of 120 000 tonnes and not 267 000 tonnes is selected, the Commission’s overall assessment of the relevant factors seeking to determine whether or not there was the threat of a continuation or recurrence of material injury to the detriment of the EU industry in the event of the removal of anti-dumping measures remains justified in so far as it leads to the conclusion, in recitals 154 and 155 of the contested regulation, that there was such a threat. In particular, the spare capacity of Russian production, the relative weakness of Russian internal consumption, the uncertainties concerning its Asian export markets, the modest growth in demand within the European Union, the continuation of the Russian producers’ dumped prices at a significant level to the European Union and the undercutting of sales prices there by them in the light of the resale prices of the EU industry, itself still vulnerable, enabled the Commission plausibly to conclude that should the anti-dumping measures in force not be renewed, there would be a resumption of imports from Russia onto the EU market at dumped prices and in substantial volumes resulting in material injury to the EU industry. Factors such as the decrease in the market shares and the relative increase in the prices of the Russian producers in relation to the investigation period that led to the initial regulation, while significant, were insufficient to preclude that conclusion.
98      In the light of the foregoing, the argument alleging an erroneous assessment of the Russian producers’ spare capacity at 267 000 tonnes in order to evaluate the likelihood of Russian imports increasing and of the recurrence of corresponding injury to EU industry cannot prove that the contested regulation is vitiated by manifest errors of assessment.
99      Consequently, the third plea in law, alleging manifest errors of assessment in the analysis of the likelihood of a recurrence of injury if the anti-dumping measures were allowed to lapse must be rejected, and the action must be dismissed in its entirety.
Costs
100    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. As the applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.
101    Under Article 138(3) of the Rules of Procedure, the Court may order an intervener other than those referred to in paragraphs 1 and 2 of that article to bear its own costs. In the present case, it is appropriate to decide that Euroalliages must bear its own costs.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Chelyabinsk electrometallurgical integrated plant OAO (CHEMK) and Kuzneckie Ferrosplavy OAO (KF) to bear their own costs and to pay those incurred by the European Commission;
3.      Orders Euroalliages to bear its own 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.
1      This judgment is published in extract form.