62012TJ0466_EN
Parties
Grounds
Operative part
Parties
In Case T‑466/12,
RFA International, LP,
established in Calgary (Canada), represented by B. Evtimov, lawyer,
applicant,
v
European Commission,
represented by P. Němečková and A. Stobiecka-Kuik, acting as Agents,
defendant,
ACTION for partial annulment of Commission 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 of 10 August 2012 concerning applications for a refund of anti-dumping duties paid on imports of ferro-silicon originating in Russia, in so far as those decisions refuse reimbursement of the amounts of anti-dumping duties applied for, save for those amounts the applications for which have been found inadmissible because submitted after the statutory time-limits had expired,
THE GENERAL COURT (Second Chamber),
composed of M.E. Martins Ribeiro (Rapporteur), President, S. Gervasoni and L. Madise, Judges,
Registrar: L. Grzegorczyk, Administrator,
having regard to the written procedure and further to the hearing on 17 September 2014,
gives the following
Grounds
Judgment
Legal context
WTO rules
1. Article VI.1 of the General Agreement on Tariffs and Trade 1994 (GATT) states that ‘[t]he contracting parties recognise that dumping, by which products of one country are introduced into the commerce of another country at less than the normal value of the products, is to be condemned if it causes or threatens material injury to an established industry in the territory of a contracting party or materially retards the establishment of a domestic industry’.
2. The Agreement on Implementation of Article VI of [GATT] (OJ 1994 L 336, p. 103) (‘the Anti-Dumping Agreement’) is set out in Annex 1A to the Agreement establishing the World Trade Organisation (WTO) (OJ 1994 L 336, p. 3).
3. Articles 18.3 and 18.3.1 of the Anti-Dumping Agreement are worded as follows:
‘18.3. Subject to subparagraphs 3.1 and 3.2, the provisions [of the Anti-Dumping Agreement] shall apply to investigations, and reviews of existing measures, initiated pursuant to applications which have been made on or after the date of entry into force for a Member of the WTO Agreement.
18.3.1 With respect to the calculation of margins of dumping in refund procedures under paragraph 3 of Article 9, the rules used in the most recent determination or review of dumping shall apply.’
EU law
4. The basic anti-dumping legislation consists of 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’), which replaced Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1), as amended.
5. Article 2 of the Basic Regulation lays down the rules governing the determination as to whether dumping is being practised. Paragraph 1 thereof defines the normal value as follows:
‘The normal value shall normally be based on the prices paid or payable, in the ordinary course of trade, by independent customers in the exporting country.
However, where the exporter in the exporting country does not produce or does not sell the like product, the normal value may be established on the basis of prices of other sellers or producers.
Prices between parties which appear to be associated or to have a compensatory arrangement with each other may not be considered to be in the ordinary course of trade and may not be used to establish normal value unless it is determined that they are unaffected by the relationship.
In order to determine whether two parties are associated account may be taken of the definition of related parties set out in Article 143 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code.’
6. Paragraphs 8 and 9 of Article 2 of the Basic Regulation relate to the export price. They are worded as follows:
‘8. The export price shall be the price actually paid or payable for the product when sold for export from the exporting country to the [European Union].
9. In cases where there is no export price or where it appears that the export price is unreliable because of an association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported products are first resold to an independent buyer, or, if the products are not resold to an independent buyer, or are not resold in the condition in which they were imported, on any reasonable basis.
In these cases, adjustment for all costs, including duties and taxes, incurred between importation and resale, and for profits accruing, shall be made so as to establish a reliable export price, at the [European Union] frontier level.
The items for which adjustment shall be made shall include those normally borne by an importer but paid by any party, either inside or outside the [European Union], which appears to be associated or to have a compensatory arrangement with the importer or exporter, including usual transport, insurance, handling, loading and ancillary costs; customs duties, any anti-dumping duties, and other taxes payable in the importing country by reason of the importation or sale of the goods; and a reasonable margin for selling, general and administrative costs and profit.’
7. Article 2(10) of the Basic Regulation provides as follows in respect of the comparison between the export price and the normal value:
‘A fair comparison shall be made between the export price and the normal value. This comparison shall be made at the same level of trade and in respect of sales made at, as closely as possible, the same time and with due account taken of other differences which affect price comparability. Where the normal value and the export price as established are not on such a comparable basis due allowance, in the form of adjustments, shall be made in each case, on its merits, for differences in factors which are claimed, and demonstrated, to affect prices and price comparability. Any duplication when making adjustments shall be avoided, in particular in relation to discounts, rebates, quantities and level of trade. When the specified conditions are met, the factors for which adjustment can be made are listed as follows:
...’
8. Article 11(8) of the Basic Regulation governs the procedure for the refund of duties collected. It is worded as follows:
‘Notwithstanding paragraph 2, an importer may request reimbursement of duties collected where it is shown that the dumping margin, on the basis of which duties were paid, has been eliminated, or reduced to a level which is below the level of the duty in force.
In requesting a refund of anti-dumping duties, the importer shall submit an application to the Commission. The application shall be submitted via the Member State of the territory in which the products were released for free circulation, within six months of the date on which the amount of the definitive duties to be levied was duly determined by the competent authorities or of the date on which a decision was made definitively to collect the amounts secured by way of provisional duty. Member States shall forward the request to the Commission forthwith.
An application for refund shall only be considered to be duly supported by evidence where it contains precise information on the amount of refund of anti-dumping duties claimed and all customs documentation relating to the calculation and payment of such amount. It shall also include evidence, for a representative period, of normal values and export prices to the [European Union] for the exporter or producer to which the duty applies. In cases where the importer is not associated with the exporter or producer concerned and such information is not immediately available, or where the exporter or producer is unwilling to release it to the importer, the application shall contain a statement from the exporter or producer that the dumping margin has been reduced or eliminated, as specified in this Article, and that the relevant supporting evidence will be provided to the Commission. Where such evidence is not forthcoming from the exporter or producer within a reasonable period of time the application shall be rejected.
The Commission shall, after consultation of the Advisory Committee, decide whether and to what extent the application should be granted, or it may decide at any time to initiate an interim review, whereupon the information and findings from such review carried out in accordance with the provisions applicable for such reviews, shall be used to determine whether and to what extent a refund is justified. Refunds of duties shall normally take place within 12 months, and in no circumstances more than 18 months after the date on which a request for a refund, duly supported by evidence, has been made by an importer of the product subject to the anti-dumping duty. The payment of any refund authorised should normally be made by Member States within 90 days of the Commission’s decision.’
9. Article 11(9) of the Basic Regulation provides as follows:
‘In all review or refund investigations carried out pursuant to this Article, the Commission shall, 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, and in particular paragraphs 11 and 12 thereof, and of Article 17.’
10. In the notice concerning the reimbursement of anti-dumping duties (OJ 2002 C 127, p. 10, ‘the interpretative notice’), the Commission of the European Communities set out guidelines for the application of Article 11(8) of the Basic Regulation. Point 3.2.3 of the interpretative notice, entitled ‘Analysis of merits’, provides in particular:
‘(a) General methodology
...
Article 11(9) of the Basic Regulation provides for the use of “the same methodology as in the original investigation which led to the duty, with due account being taken of Article 2 (Determination of dumping), and in particular paragraphs 11 and 12 thereof (Use of weighted averages in calculating the dumping margin), and of Article 17 (Sampling)”.
...
(b) ...
(c) Use of review findings
When examining any application for a refund, the Commission may decide at any time to initiate an interim review in accordance with Article 11(3) of the Basic Regulation. The procedure regarding the application for refund will be suspended until the review investigation is completed.
The findings of the review investigation may be used to determine the merits of a refund application provided that the date of invoicing of the transactions for which a refund is being claimed fall[s] within the investigation period of the review.
(d) ...’
Background to the dispute
11. The applicant, RFA International, LP, is a limited partnership formed in Canada which conducts its daily business operations from its registered branch in Switzerland. Since an unspecified date after 25 February 2008, RFA International, acting through its Swiss branch, has purchased, resold, imported and warehoused, within the European Union, ferro-silicon originating in Russia produced by two sister companies established in Russia, namely, Chelyabinsk electrometallurgical integrated plant OAO (‘CHEMK’) and Kuzneckie ferrosplavy OAO (‘KF’). Ferro-silicon is an alloy used in the manufacture of steel and iron.
12. On 25 February 2008, following a complaint lodged by the Comité de liaison des industries de ferroalliages (Euroalliages), 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 rate of the definitive anti-dumping duty applicable to the net, free-at-Community-frontier price, before duty, was set at 22.7% for the products manufactured by CHEMK and KF .
13. On 30 November 2009, CHEMK and KF submitted a request for partial interim review, limited to dumping, under Article 11(3) of the Basic Regulation. The investigation initiated by the Commission in response to that request covered the period from 1 October 2009 to 30 September 2010 (‘the review investigation period’).
14. Between 30 July 2009 and 10 December 2010, RFA International, in accordance with Article 11(8) of the Basic Regulation, submitted to the Commission through the customs authorities of Belgium, Germany, Italy, the Netherlands, Finland, Sweden and the United Kingdom, a number of applications for the refund of anti-dumping duties. Those applications related to anti-dumping duties paid by RFA International between 7 January 2009 and 10 December 2010. The refund investigation covered the period from 1 October 2008 to 30 September 2010 (‘the refund investigation period’). 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 investigation period’) and (ii) the period from 1 October 2009 to 30 September 2010 (‘the second investigation period’). The second investigation period coincides with the review investigation period.
15. In reply to a request for information made by the Commission during the interim review procedure, CHEMK, KF and RFA International (collectively, ‘the CHEMK Group’) sent the Commission, by letter of 12 January 2011, clarification regarding the CHEMK Group’s corporate structure.
16. On 9 November 2011, the Commission sent RFA International its findings in relation to the first investigation period. The Commission found that the dumping margin for that period was negative and that, in consequence, the refunding of anti-dumping duties paid by RFA International was warranted.
17. On 16 January 2012, the Council — through the adoption of Implementing Regulation (EU) No 60/2012 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 Implementing Regulation’) — terminated the interim review procedure without adjusting the level of the anti-dumping measure in force. In the course of its assessment of the export price, the Council, inter alia, examined and rejected the arguments put forward during the review procedure by CHEMK and KF to show that, together with RFA International, they formed a single economic entity (recitals 23, 24, 36 and 37 of the Implementing Regulation).
18. By letters dated 5 and 6 June 2012, the Commission sent RFA International its findings in relation to the second investigation period. Those documents show that the Commission calculated a dumping margin of 24.1% for the second investigation period, as a result of which, in the Commission’s view, the refund application in respect of that period had to be refused.
19. By correspondence dated 20 June 2012, RFA International disputed the Commission’s findings in relation to the second investigation period and submitted its observations in that regard.
20. 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 the applications for a refund of anti-dumping duties paid on imports of ferro-silicon originating in Russia (collectively, ‘the contested decisions’). By those decisions, the Commission granted the refund applications relating to the first investigation period, to the extent that they were admissible, and refused the refund applications relating to the second investigation period. RFA International was notified of those decisions on 14 August 2012.
Contested decisions
21. In the contested decisions, the Commission first defined the refund investigation period, dividing it into two separate periods as had been done during the refund investigation (see paragraph 14 above). Since the second investigation period coincided with the review investigation period, the Commission stated that it could use its findings in that investigation to evaluate the merits of the refund application, in accordance with the interpretative notice (recitals 4 to 7 of the contested decisions). In addition, the Commission examined the admissibility of the refund application. In that regard, it found, inter alia, that the applications were in part inadmissible as, in respect of a number of transactions carried out during the first investigation period, they had been submitted after the expiry of the six-month period allowed under Article 11(8) of the Basic Regulation (recital 10 of the contested decisions).
22. Secondly, the Commission examined the merits of the refund applications.
23. First of all, as regards the export price, the Commission applied Article 2(9) of the Basic Regulation, because it considered that RFA International, through which CHEMK and KF made their export sales, performed all import functions within the European Union. The Commission then constructed the export price on the basis of the price at which the imported products were first resold to an independent buyer, adjusted for all costs incurred between importation and resale, and profit margin as well, set at 6%, and a reasonable margin for selling, general and administrative costs (collectively, ‘the SG & A costs’) (recitals 21 and 22 of Decisions C(2012) 5577 final, C(2012) 5595 final, C(2012) 5596 final, C(2012) 5598 final and C(2012) 5611 final; recitals 22 and 23 of Decisions C(2012) 5585 final and C(2012) 5588 final). Secondly, the Commission examined the argument put forward by RFA International and by CHEMK and KF to the effect that they should be treated as a single economic entity and that, consequently, no adjustment should be made for SG & A costs or profit when determining the export price. In reply to that argument, the Commission reiterated its finding that RFA International had to be treated as an associated importer, in accordance with Article 2(9) of the Basic Regulation. The Commission also took the view that the existence of a single economic entity was irrelevant for the purposes of the adjustments made under Article 2(9) of the Basic Regulation, which expressly applies to situations where the exporter and importer are associated (recitals 23 and 24 of Decisions C(2012) 5577 final, C(2012) 5595 final, C(2012) 5596 final, C(2012) 5598 final and C(2012) 5611 final; recitals 24 and 25 of Decisions C(2012) 5585 final and C(2012) 5588 final).
24. Next, as regards the calculation of the dumping margin, the Commission found that the dumping margin for the first investigation period was negative, whilst for the second period that margin, as corrected following RFA International’s observations, was 23.1% (recital 29 of Decisions C(2012) 5577 final, C(2012) 5595 final, C(2012) 5596 final, C(2012) 5598 final and C(2012) 5611 final; recital 30 of Decisions C(2012) 5585 final and C(2012) 5588 final). The Commission also stated that in the refund investigation, and by contrast with the investigation which led to the adoption of the Initial Regulation, it initially calculated one dumping margin for CHEMK and another for KF, before determining an average dumping margin for the CHEMK Group. The reason given by the Commission as justification for applying that new methodology was a change in circumstances for the purposes of Article 11(9) of the Basic Regulation, owing to alterations to the channels for export sales of ferro-silicon by the CHEMK Group. According to the Commission, however, the new methodology is consistent with the requirements under Article 2 of that regulation (recitals 31 to 33 of Decisions C(2012) 5577 final, C(2012) 5595 final, C(2012) 5596 final, C(2012) 5598 final and C(2012) 5611 final; recitals 32 to 34 of Decisions C(2012) 5585 final and C(2012) 5588 final).
25. Lastly, the Commission examined the arguments put forward by RFA International on being notified by the Commission of its findings following the refund investigation. In that connection, the Commission, inter alia, examined and rejected RFA International’s arguments disputing the existence of a change in circumstances warranting a new calculation methodology (recitals 40 to 47 of Decisions C(2012) 5577 final, C(2012) 5595 final, C(2012) 5596 final, C(2012) 5598 final and C(2012) 5611 final; recitals 41 to 48 of Decisions C(2012) 5585 final and C(2012) 5588 final). It also rejected RFA International’s arguments relating to the concept of a ‘single economic entity’ (recital 48 of Decisions C(2012) 5577 final, C(2012) 5595 final, C(2012) 5596 final, C(2012) 5598 final and C(2012) 5611 final; recital 49 of Decisions C(2012) 5585 final and C(2012) 5588 final).
Procedure and forms of order sought
26. By application lodged at the Registry of the Court on 23 October 2012, the applicant brought the present action.
27. Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Second Chamber, to which this case was, consequently, assigned.
28. On hearing the report of the Judge-Rapporteur, the General Court (Second Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure pursuant to Article 64 of its Rules of Procedure, put a question in writing to the applicant. The applicant responded within the time allowed.
29. The parties presented oral argument and answered the oral questions put to them by the Court at the hearing on 17 September 2014.
30. The applicant claims that the Court should:
– annul the contested decisions in part, in so far as they refuse reimbursement of the amounts of anti-dumping duties applied for, save for those amounts the applications for which have been found inadmissible because submitted after the statutory time-limits had expired;
– order the Commission to pay the costs.
31. The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
32. In support of its action for annulment, RFA International relies on two pleas in law. By the first plea, it alleges that the Commission erred in law or made manifest errors of assessment in the calculation of the export price. By the second, it alleges that the Commission made a manifest error of assessment and infringed Article 11(9) of the Basic Regulation in finding that there was a change in circumstances and in applying a new methodology for calculating the dumping margin.
The first plea, alleging errors of law or manifest errors of assessment in the calculation of the export price
33. By its first plea for annulment, RFA International essentially submits that, when calculating the export price, the Commission wrongly made adjustments for all SG & A costs and profits relating to RFA International’s export-related functions as the integrated sales and distribution department of the single economic entity composed of RFA International, CHEMK and KF. This plea is divided into two parts. The first relates to the finding in the contested decisions that RFA International, CHEMK and KF do not form a single economic entity. The second relates to the consideration set out in the contested decisions to the effect that the concept of ‘single economic entity’ is irrelevant for the purposes of constructing the export price.
34. It is appropriate to examine the second part of the present plea first, before subsequently assessing the first part of the plea.
The second part
35. In the second part of the first plea, RFA International submits that the Commission erred in law or made a manifest error of assessment in holding, in the contested decisions, that the existence of a single economic entity is irrelevant for the purposes of constructing the export price under Article 2(9) of the Basic Regulation, even though it is apparent from the judgments of 16 February 2012 in Council and Commission
v Interpipe Niko Tube and Interpipe NTRP (C‑191/09 P and C‑200/09 P, ECR, EU:C:2012:78, paragraphs 55 and 56) and of 10 March 2009 in Interpipe Niko Tube and Interpipe NTRP
v Council (T‑249/06, ECR, EU:T:2009:62, paragraph 177) that the single economic entity concept, also applied when determining the normal value, is relevant ‘in calculating the export price’. Although that case-law related to adjustments made under Article 2(10) of the Basic Regulation, RFA International submits that neither the wording of Article 2(9) nor any overriding legal or economic reason prevents its application to the calculation of the export price pursuant to Article 2(9) of that regulation. The effect of that application is to prevent the SG & A costs and profits relating to the export-related functions of a company operating as an integrated export service from being adjusted under Article 2(9) of the Basic Regulation. It follows, in this case, that, if the Commission had not made the alleged errors, the SG & A costs and profits of RFA International would have been adjusted only to the extent of the SG & A costs and profits linked to its importation and post-importation activities.
36. The Commission disputes the merits of those arguments.
37. As a preliminary observation, it should be noted, on the one hand, that, in the realm of measures to protect trade, the Council and the Commission (‘the institutions’) enjoy broad discretion by reason of the complexity of the economic, political and legal situations which they have to examine (judgment of 27 September 2007 in Ikea Wholesale, C‑351/04, ECR, EU:C:2007:547, paragraph 40). It follows that review of such assessments by the Courts of the Union must be limited 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 (judgments of 7 May 1987 in NTN Toyo Bearing and Others
v Council, 240/84, ECR, EU:C:1987:202, paragraph 19; of 14 March 1990 in Gestetner Holdings v Council and Commission, C‑156/87, ECR, EU:C:1990:116, paragraph 63; and of 7 February 2013 in EuroChem MCC
v Council, T‑84/07, ECR, EU:T:2013:64, paragraph 32).
38. On the other hand, first of all, it should be noted that Article 2(8) of the Basic Regulation provides that the export price is the price actually paid or payable for the product when sold for export to the European Union. The first subparagraph of Article 2(9) of the Basic Regulation provides that in cases where there is no export price or where it appears that the export price is unreliable because of an association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported products are first resold to an independent buyer, or, if the products are not resold to an independent buyer, or are not resold in the condition in which they were imported, on any reasonable basis.
39. It follows that, where the exporter and importer are associated, the institutions are entitled, under Article 2(9) of the Basic Regulation, to construct the export price. The case-law accepts the existence of such an association where the exporter and the importer belong to the same group of companies (see, to that effect and by analogy, judgments of 5 October 1988 in Canon and Others
v Council, 277/85 and 300/85, ECR, EU:C:1988:467, paragraph 31; of 14 September 1995 in Descom Scales
v Council, T‑171/94, ECR, EU:T:1995:164, paragraph 33; and of 20 October 1999 in Swedish Match Philippines
v Council, T‑171/97, ECR, EU:T:1999:263, paragraph 73).
40. Secondly, under the second subparagraph of Article 2(9) of the Basic Regulation, where the export price is constructed on the basis of the price to the first independent buyer or on any reasonable basis, adjustment for all costs incurred between importation and resale is to be made so as to establish a reliable export price at the EU frontier level. The third subparagraph of Article 2(9) of the Basic Regulation provides that the items for which adjustment is to be made are to include, in particular, a reasonable margin for SG & A costs and profits (judgment of 25 October 2011 in CHEMK and KF
v Council, T‑190/08, ECR, EU:T:2011:618, paragraph 27).
41. In that regard, it is important to add that the adjustments provided for in the second and third subparagraphs of Article 2(9) are made automatically by the institutions (see, by analogy, judgments of 7 May 1987 in Nachi Fujikoshi
v Council, 255/84, ECR, EU:C:1987:203, paragraph 33; of 7 May 1987 in Minebea
v Council, 260/84, ECR, EU:C:1987:206, paragraph 43; and Descom Scales
v Council, paragraph 39 above, EU:T:1995:164, paragraph 66). Furthermore, it must be held that that provision does not preclude adjustments being made for costs incurred before importation, inasmuch as those costs are normally borne by the importer (see, to that effect and by analogy, judgment in Gestetner Holdings v Council and Commission, paragraph 37 above, EU:C:1990:116, paragraphs 31 to 33).
42. Next, although Article 2(9) of the Basic Regulation provides that an adjustment is to be made for a reasonable margin for SG & A costs and profits, that provision does not lay down the method for calculating or determining that margin. It merely states that the margin that is to be adjusted must be reasonable (see, to that effect, judgment in CHEMK and KF
v Council, paragraph 40 above, EU:T:2011:618, paragraph 28).
43. Finally, no exception falls to be made in the determination of a reasonable margin for the SG & A costs and profits in the application of the case-law referred to in paragraph 37 above, according to which the institutions enjoy a wide discretion and the powers of review enjoyed by the Courts of the European Union are restricted accordingly. That determination necessarily entails complex economic assessments (see, to that effect, judgment in CHEMK and KF
v Council, paragraph 40 above, EU:T:2011:618, paragraph 38; see, by analogy, judgments of 30 March 2000 in Miwon
v Council, T‑51/96, ECR, EU:T:2000:92, paragraph 42; and of 21 November 2002 in Kundan and Tata
v Council, T‑88/98, ECR, EU:T:2002:280, paragraph 50).
44. Thirdly, following on from the above and in the light of the case-law, it must be noted that, where the exporter and importer are associated, it is for the interested party who intends to dispute the extent of the adjustments made on the basis of Article 2(9) of the Basic Regulation, inasmuch as the margins established in respect of SG & A costs and profits are excessive, to supply specific evidence and calculations justifying those claims and, in particular, the alternative rate that it suggests where applicable (see, to that effect and by analogy, judgment in Canon and Others
v Council, paragraph 39 above, EU:C:1988:467, paragraph 32).
45. In this case, first, it is not disputed that, during the administrative procedure, RFA International argued before the Commission that it formed, together with CHEMK and KF, a single economic entity and that, in addition to the import functions, it performed export-related functions as an integrated distribution department of that entity.
46. Next, in the contested decisions, the Commission found that RFA International carried out all the functions normally performed by a related importer, with the result that it had to be considered as being associated with CHEMK and KF and that the export price had to be constructed under Article 2(9) of the Basic Regulation. The Commission also held that the existence of a single economic entity was irrelevant to the question whether the adjustments had to be made under that provision. Article 2(9) of the Basic Regulation expressly applies in the event of an association between the exporter and the importer (recital 24 of Decisions C(2012) 5577 final, C(2012) 5595 final, C(2012) 5596 final, C(2012) 5598 final and C(2012) 5611 final; recital 25 of Decisions C(2012) 5585 final and C(2012) 5588 final). In addition, the Commission stated that it was irrelevant for the purposes of an adjustment made under Article 2(9) of the Basic Regulation whether or not the association took the form of a single economic entity. The judgments in Council and Commission
v Interpipe Niko Tube and Interpipe NTRP, paragraph 35 above (EU:C:2012:78), and in Interpipe Niko Tube and Interpipe NTRP
v Council, paragraph 35 above (EU:T:2009:62), relied on by RFA International, are not relevant, since the case giving rise to those judgments involved an adjustment under Article 2(10)(i) of the Basic Regulation (recital 48 of Decisions C(2012) 5577 final, C(2012) 5595 final, C(2012) 5596 final, C(2012) 5598 final and C(2012) 5611 final; recital 49 of Decisions C(2012) 5585 final and C(2012) 5588 final).
47. Finally, as is apparent from the documents before the Court, the Commission took account, for the construction of the export price on the basis of Article 2(9) of the Basic Regulation, of a reasonable margin for SG & A costs amounting to 2.29% of RFA International’s net turnover and of a reasonable profit margin amounting to 6% of that net turnover.
48. It is in the light of those reminders and clarifications that the merits of the arguments raised by RFA International in support of this part of the first plea should be considered. In that regard, it should be recalled that RFA International claims the Commission made errors of law or of fact in that it incorrectly concluded that the existence of a single economic entity was irrelevant for the purposes of constructing the export price, with a view to disputing, in essence, part of the adjustments made by the Commission on the basis of Article 2(9) of the Basic Regulation in respect of its SG & A costs and of its profits.
49. In addition, it should be noted that RFA International agrees that, in the present case, it was appropriate to construct the export price in accordance with Article 2(9) of the Basic Regulation, whose applicability it does not dispute. Furthermore, as it confirmed at the hearing, RFA International accepts that the SG & A costs and its profits related to its import functions, which, according to the applicant, fell within the scope of that provision, had to be adjusted.
50. In the first place, RFA International claims, in essence, that the Commission erred in law in that it incorrectly held that the existence of a single economic entity was irrelevant in the context of Article 2(9) of the Basic Regulation.
51. It should be noted that, in response to arguments put forward by RFA International during the administrative procedure alleging that, together with CHEMK and KF, it formed a single economic entity, the Commission noted in the contested decisions that RFA International performed the functions which were normally those of a related im porter, with the result that the conditions necessary for the adjustments referred to in Article 2(9) of the Basic Regulation were met. It also stated that, when the conditions for the application of that provision were met, the existence of a single economic entity was irrelevant when determining whether it was appropriate to make adjustments under Article 2(9) of the Basic Regulation, and that that provision was expressly applicable where an association between the exporter and the importer was found to exist. In addition, the Commission found that, in the context of an adjustment made under Article 2(9) of the Basic Regulation, it was irrelevant whether the association between RFA International and CHEMK and KF took the form of a single economic entity.
52. It is thus apparent that the rejection, in the contested decisions, of RFA International’s argument regarding the existence of a single economic entity is, in essence, based on the consideration that whether such an entity does or does not exist is, according to the Commission, irrelevant to the very applicability of Article 2(9) of the Basic Regulation where, as in this case, an association between the producer and importer is found to exist, given that, where the conditions for the application of that provision are met, the Commission takes the view that it is its task to make the adjustments provided for therein.
53. It should further be noted that it does not appear from the contested decisions that the Commission meant that it was not conceivable that a single economic entity could, in some circumstances, have an impact on the detailed rules for the application of Article 2(9) of the Basic Regulation, that is to say, in particular, on the possibility that some SG & A costs and profits (for example, those relating to export activities) might not be taken into account under the adjustments made pursuant to that provision.
54. That reading of the grounds of the contested decisions is all the more cogent since, as is clear from those decisions, RFA International argued during the administrative procedure that the existence of a single economic entity would prevent any adjustment, under Article 2(9) of the Basic Regulation, to its SG & A costs and profits. It is in response to that claim that the Commission replied in the contested decisions that the existence of such an entity did not, according to it, preclude those adjustments. Moreover, while, in its observations of 20 June 2012, RFA International hinted that it disputed only a part of the adjustments made in relation to those costs, the fact none the less remains that those observations are not unequivocal as to the real extent of RFA International’s dispute and that, in any event, RFA International makes no specific criticism in its pleadings of the manner in which its arguments are presented, as they are set out in the contested decisions and as RFA International itself set them out in the application when presenting the factual context of this case.
55. In the light of the foregoing and inasmuch as, on the one hand, RFA International in no way challenges, as it confirmed at the hearing in reply to a question put by the Court, the applicability of Article 2(9) of the Basic Regulation even where a single economic entity was found to exist and as, on the other, the Commission, in the contested decisions, merely held that the existence of such an entity did not affect the applicability of that provision and the adjustments set out therein, it must be concluded that the arguments of RFA International are not such as to establish that the Commission’s findings are marred by an error of law.
56. Accordingly, those arguments must be dismissed without it being necessary to establish what, if any, the effects would be of the existence of a single economic entity on the calculation of the export price and the impact, in that regard, of the judgments in Council and Commission
v Interpipe Niko Tube and Interpipe NTRP, paragraph 35 above (EU:C:2012:78), and Interpipe Niko Tube and Interpipe NTRP
v Council, paragraph 35 above (EU:T:2009:62), relied on by RFA International.
57. In the second place, as it stated at the hearing, RFA International claims, in essence, that the adjustments made during the construction of the export price under Article 2(9) of the Basic Regulation, in respect of its SG & A costs and of its profits, are excessive. It noted that, in the case of a company which, as it does, acts both as an importer and as an exporter forming part of a single economic entity, Article 2(9) of the Basic Regulation permits adjustments for SG & A costs and for profits to be made only in respect of the functions related to import activities and not those relating to export. In addition, inasmuch as, during the administrative procedure, it argued that it performed, in addition to its import duties, export-related functions, RFA International believes that it was for the Commission to draw, with a view to the adjustments provided for in Article 2(9) of the Basic Regulation, a distinction between those two functions and to make adjustments only in respect of those SG & A costs and of the profits relating to import functions.
58. Without it even being necessary to determine whether RFA International does form a single economic entity together with CHEMK and KF and what, should the case arise, the effects of the existence of such an entity would be on the calculation of the export price under the relevant provisions of the Basic Regulation, it should be noted that RFA International’s arguments do not prove that the margins referred to in paragraph 47 above are excessive in that the Commission failed to make a distinction between the different functions of RFA International.
59. First, during the administrative procedure, RFA International, as it confirmed at the hearing in response to a question put by the Court, did not submit any detailed figures concerning the costs and profits which, according to the applicant, ought not to have been adjusted since they are linked to its export activities. In addition, it is apparent from the documents in the case that RFA International merely claimed before the Commission that, together with CHEMK and KF, it formed a single economic entity and carried out, in addition to import functions, the functions of an integrated sales department. In its letter of 20 June 2012, RFA International, disputing the Commission’s findings concerning the second investigation period, argued, in particular, that only the SG & A costs and the profits relating to its import functions could be adjusted under Article 2(9) of the Basic Regulation, except for SG & A costs and the profits relating to its export-related functions. However, it is clear from the Commission’s pleadings, and is not disputed by RFA International, that, with respect to the adjustments which the Commission planned to make, the applicant deleted, in Annex 3 of its letter of 20 June 2012, the column entitled ‘SG & A 2.29% and normal IP profit 6%’.
60. In those circumstances, it should be noted that, besides the fact that the comments submitted by RFA International during the administrative procedure are not unambiguous, the Commission was required, because RFA International had failed to submit specific data regarding the costs incurred and profits derived from its various activities, to establish a reasonable margin for RFA International’s SG & A costs and profits, in order to make the adjustments provided for in Article 2(9) of the Basic Regulation, whose applicability has by no means been challenged by RFA International.
61. In the light of the considerations set out in paragraphs 40 to 44 above, it should be noted that, when constructing the export price on the basis of Article 2(9) of the Basic Regulation, the Commission automatically makes the adjustments provided for by that provision and establishes, to that end, a reasonable margin for SG & A costs and for profits. However, in the light of the case-law recalled in particular in paragraph 44 above, it is for the interested party, in this case RFA International, in so far as it intends, during the administrative procedure, to dispute some of the adjustments announced, to submit figures in support of its challenge, such as specific calculations justifying its claims.
62. In that regard, on the one hand, it is also important to add that the claim, if proved, that a single economic entity exists in which RFA International acts primarily as an integrated sales department, with the result that its import functions are supplemented by its export-related functions, does not, contrary to what RFA International states, reverse the burden of proof by requiring the Commission to make the distinction automatically, assuming it is warranted, between the import and export functions and the SG & A costs and the profits relating thereto. The fact remains that it was for RFA International, inasmuch as it partially contested the adjustments announced by the Commission, to show, supported by evidence, the excessive nature of those adjustments by establishing the impact, according to RFA International, of those export-related functions on adjustments likely to be made by the Commission.
63. Nor, on the other hand, contrary to what RFA International argued at the hearing, could it dispense with submitting evidence in the form of figures inasmuch as the Commission had not yet taken a decision on the existence, here, of a single economic entity and its relevance to the construction of the export price. That argument, in that it amounts to making the submission of those figures intended to show the excessive nature of certain adjustments, in that they relate to functions which do not fall within the scope of Article 2(9) of the Basic Regulation, subject to prior recognition by the Commission of the performance of such functions, is irreconcilable with the case-law cited in paragraph 44 above.
64. It follows that, in the light of RFA International’s failure to provide detailed figures in the course of the administrative procedure, the Commission did not make a manifest error in establishing reasonable margins for RFA International’s SG & A costs and profits without automatically making any distinction, assuming any such distinction to be relevant, between the SG & A costs and the profits generated by the activities of the latter relating to its alleged export and import functions, respectively.
65. Secondly, besides the fact that during the administrative procedure, RFA International did not provide any figures intended to call into question the reasonable margin for SG & A costs and profits that the Commission intended to apply, it is important to add that, in the present case, RFA International has not shown the excessive nature of the adjustments made by the Commission either. Before the Court, RFA International produced no evidence capable of specifically establishing the amount of the adjustments that it disputes in that they relate to its export activities as part of a single economic entity, or even any evidence of the allegedly excessive nature of the adjustments made by the Commission.
66. Thus, first, according to RFA International, if the Commission had applied Article 2(9) of the Basic Regulation correctly by taking account of the existence of a single economic entity, the dumping margin for the second investigation period ‘would have been significantly lower’ than that calculated by the Commission, it being specified that the adjustments made were ‘exaggerated’. Secondly, RFA International argues that the impact of the existence of a single economic entity on the adjustments made under Article 2(9) of the Basic Regulation is contained within a bracket of between 8% and 20% of the dumping margin calculated. Thirdly, the reasonable margin of 2.29% of net turnover retained for SG & A costs was ‘much higher’ than the margin that could have been deducted if the Commission had taken into account the existence of a single economic entity. Fourthly, the profit margin of 6% of that turnover constitutes ‘the average margin of profit by any unrelated trader/importer’, whereas, where a single economic entity is found to exist, ‘only a negligible, if any, amount of profit can be attributed to the applicant/[single economic entity]’s resale post-importation into the Union’.
67. Those vague and unsubstantiated assertions are insufficient to satisfy the requirements set out in paragraph 44 above and are not, accordingly, such as to call into question the extent of the adjustments made by the Commission in the contested decisions.
68. Moreover, inasmuch as RFA International alleges that the Commission, in the contested decisions, applied the average profit margin of an independent importer, it is sufficient to point out that, according to case-law, the reasonable profit margin referred to in the third subparagraph of Article 2(9) of the Basic Regulation may, where there is an association between producer and importer within the Union, be based not on information from the associated importer, which may be influenced by that association, but on information from an unrelated importer (judgment in CHEMK and KF
v Council, paragraph 40 above, EU:T:2011:618, paragraph 29; see also, by analogy, judgments of 5 October 1988 in Silver Seiko and Others
v Council, 273/85 and 107/86, ECR, EU:C:1988:466, paragraph 25; and Canon and Others
v Council, paragraph 39 above, EU:C:1988:467, paragraph 32).
69. It follows that RFA International has not shown that the adjustments made in respect of its SG & A costs and of its profits were excessive.
70. Accordingly, the Commission did not make a manifest error in applying, in the contested decisions, reasonable margins of 2.29% and 6% in relation to RFA International’s SG & A costs and its profits, respectively.
71. In the light of the foregoing, the second part of the first plea must be dismissed.
The first part
72. In support of the first part of the first plea, RFA International submits that the Commission, in the contested decisions, erred in law or made a manifest error of assessment in finding that RFA International, CHEMK and KF did not form a single economic entity. RFA International further states that, although the Commission described it in the contested decisions as an importer associated with the exporter for the purposes of Article 2(9) of the Basic Regulation, RFA International cannot rule out the possibility that the Commission based that categorisation on its finding that RFA International did not form part of a single economic entity and that, to the extent that the Commission’s rejection, expressed in the contested decisions, of the concept of a single economic entity is based on the assessments set out in recitals 24 and 37 in the preamble to the Implementing Regulation, it is unsound because those assessments are incorrect.
73. The Commission contends that the first part of the first plea in law is inadmissible and, in any event, ineffective.
74. First of all, it should be noted that, as is apparent from the summary of the contested decisions in paragraph 46 above, the Commission, as it confirmed at the hearing, did not take a view, in those decisions, on the existence of a single economic entity containing RFA International, CHEMK and KF. In those decisions, the Commission held only that, on the one hand, RFA International performed the typical functions of a related importer, so that the export price had to be constructed on the basis of Article 2(9) of the Basic Regulation and that, on the other hand, the existence of a single economic entity was irrelevant in that regard once the conditions for the application of that provision were met. It follows that the first part of this plea must be rejected in that it is directed at conclusions which are not included in the contested decisions.
75. Next, even assuming that, as argued by RFA International, in categorising it as a related importer, the Commission had intended to discount the existence of a single economic entity in the present case, it should be noted, in any event, that the fact, if established, that RFA International forms, as it claims, a single economic entity with CHEMK and KF has, in the circumstances of this case, no impact on the assessment of the legality of the construction of the export price in the contested decisions. Indeed, it should be recalled that, in the context of the second part of this plea, RFA International has not established that the adjustments made pursuant to Article 2(9) of the Basic Regulation were excessive, as a result of the existence, according to it, of a single economic entity. In those circumstances, even assuming it does form a single economic entity with CHEMK and KF and that the Commission incorrectly discounted that notion, such an error would not affect the adjustments made by the Commission in respect of RFA International’s SG & A costs and its profits.
76. Finally, to the extent that RFA International refers to the conclusions drawn by the Council in the Implementing Regulation, which conclusions, according to it, the Commission had, according to point 3.2.3(a) of the interpretative notice, to take account of in adopting the contested decisions, it is important, first, to note that, while it is apparent from the respective fifth recitals of the contested decisions that the Commission intended, in principle, to follow in those decisions the conclusions of the review investigation, the fact remains that, with regard to the calculation of the export price, it has by no means taken a position on the existence of a single economic entity. It is only in the Implementing Regulation that an assessment is made, by the Council, of the evidence put forward by the CHEMK Group with a view to establishing the existence of a single economic entity.
77. However, it must be stated that the Implementing Regulation does not fall within the scope of this appeal, as RFA International further confirmed at the hearing.
78. Thus, since, according to the case-law, the Courts of the European Union may not rule ultra petita (judgments of 14 December 1962 in Meroni
v High Authority, 46/59 and 47/59, ECR, EU:C:1962:44, page 801, and of 28 June 1972 in Jamet
v Commission, 37/71, ECR, EU:C:1972:57, paragraph 12), the Court may not, here, assess the legality of the grounds contained in recitals 24 and 37 in the preamble to the Implementing Regulation.
79. Secondly, to the extent that, at the hearing, RFA International indicated that, in view of its rights of defence, it would be appropriate to take account of all the elements, that is to say, not only the contested decisions, but also the review investigation, it should be noted that the question whether RFA International intends to invoke a breach by the Commission of its rights of defence is not sufficiently clearly apparent from the information provided at the hearing.
80. In any event, even assuming that RFA International intends to assert a breach of its rights of defence, it must be stated, as the Commission has rightly observed, that this would be a new plea put forward for the first time at the hearing and therefore inadmissible under Article 48(2) of the Rules of Procedure.
81. It should be noted that, in accordance with Article 48(2) of the Rules of Procedure, new pleas in law may not be introduced in the course of the proceedings unless they are based on matters of law or of fact which come to light in the course of the procedure (judgment of 16 March 2000 in Compagnie maritime belge transports and Others
v Commission, C‑395/96 P and C‑396/96 P, ECR, EU:C:2000:132, paragraph 99). At the hearing, however, RFA International in no way asserted that any element of law or of fact had arisen during the procedure which would justify the submission of a new plea.
82. Moreover, while, according to the case-law, a submission or argument which may be regarded as amplifying a plea made previously, whether directly or by implication, in the originating application, and which is closely connected therewith, will be declared admissible (order of 13 November 2001 in Dürbeck
v Commission, C‑430/00 P, ECR, EU:C:2001:607, paragraph 17), it must however be stated that, in this case, the infringement of the rights of defence asserted by RFA International at the hearing cannot be considered to be such an amplification. On the contrary, to the extent that, in the application, RFA International challenged, by the present part of the first plea, the possible rejection by the Commission, in the contested decisions, of the existence of a single economic entity, the claim that RFA International’s rights of defence were infringed as a result of the arguments it put forward not being taken into account for the purposes of demonstrating the existence of such an entity is necessarily based on an inverse premise, that is to say, the alleged failure, by the Commission, to examine the arguments put forward by RFA International with a view to establishing the existence of a single economic entity or having the results of the review investigation taken into account.
83. In those circumstances, the first part of the first plea must be rejected and, consequently, the first plea in its entirety.
The second plea in law, alleging manifest error of assessment and infringement of Article 11(9) of the Basic Regulation
84. By its second plea for annulment, RFA International challenges the Commission’s change of methodology for the purposes of calculating the dumping margin in the contested decisions. In essence, it submits that the Commission was wrong to find that there had been a change in circumstances warranting the change in methodology, with the result that the Commission made a manifest error of assessment and infringed Article 11(9) of the Basic Regulation. First, RFA International disputes the grounds of the contested decisions on the basis of which the Commission concluded that there was a change in circumstances within the meaning of Article 11(9) of the Basic Regulation. Next, it argues that the Commission has not shown that the change in circumstances was capable of warranting the application of a different method from that applied during the original investigation. Finally, RFA International submits that when applying Article 11(9) of the Basic Regulation, the Commission has limited discretion, so that that institution was required to apply the same method as that applied during the original investigation.
85. The Commission disputes the merits of those arguments.
86. As a preliminary point, it should be noted that it is settled case-law that the choice between the different methods of calculating the dumping margin and the assessment of the normal value of a product require an appraisal of complex economic situations, and the judicial review of such an appraisal must therefore be limited to verifying whether relevant procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers (see judgment in Ikea Wholesale, paragraph 37 above, EU:C:2007:547, paragraph 41 and the case-law cited, and judgment of 8 July 2008 in Huvis
v Council, T‑221/05, EU:T:2008:258, paragraph 39).
87. According to the wording of Article 11(9) of the Basic Regulation, in all refund procedures within the meaning of Article 11(8) of that regulation, the Commission must, provided that circumstances have not changed, apply the same methodology as that used in the original investigation leading to the imposition of the duty in question, with due account being taken of, inter alia, Article 2 of that regulation (judgment of 19 September 2013 in Dashiqiao Sanqiang Refractory Materials v Council, C‑15/12 P, ECR, EU:C:2013:572, paragraph 16).
88. According to the case-law, the exception whereby the Commission may, in the refund procedure, apply a method different from that used in the original investigation when the circumstances have changed must be interpreted strictly, for a derogation from or exception to a general rule must be interpreted narrowly (see judgment in Dashiqiao Sanqiang Refractory Materials v Council, paragraph 87 above, EU:C:2013:572, paragraph 17 and the case-law cited; judgment in Huvis
v Council, paragraph 86 above, EU:T:2008:258, paragraph 41). Therefore, it is for the Commission to prove that the circumstances have changed if it intends to apply a method different from that applied during the original investigation (judgments in Dashiqiao Sanqiang Refractory Materials v Council, paragraph 87 above, EU:C:2013:572, paragraph 18, and Huvis
v Council, paragraph 86 above, EU:T:2008:258, paragraph 41).
89. In that regard, given the requirement of a strict interpretation, it is important to add that, in order to be warranted under Article 11(9) of the Basic Regulation, the change in method must be related to a change in circumstances which is established (see, to that effect, judgment in Huvis
v Council, paragraph 86 above, EU:T:2008:258, paragraph 47).
90. However, as regards the fact that such a change in circumstances for the purposes of Article 11(9) of the Basic Regulation constitutes an exception, it is apparent from the case-law that the requirement that a provision be interpreted strictly cannot permit the Commission to interpret and apply the provision in a manner inconsistent with its wording and purpose. In that respect, it must be observed that that provision prescribes in particular that the method applied must be consistent with Article 2 of the Basic Regulation (see judgment in Dashiqiao Sanqiang Refractory Materials v Council, paragraph 87 above, EU:C:2013:572, paragraph 19 and the case-law cited, and judgment in Huvis
v Council, paragraph 86 above, EU:T:2008:258, paragraph 42; see also, to that effect, judgment of 17 November 2009 in MTZ Polyfilms
v Council, T‑143/06, ECR, EU:T:2009:441, paragraph 43).
91. It follows, moreover, that if it should be found at the refund procedure stage that application of the method used in the original investigation was not in conformity with Article 2 of the Basic Regulation, the Commission would be required no longer to apply that method (see judgment of 16 December 2011 in Dashiqiao Sanqiang Refractory Materials v Council, T‑423/09, ECR, EU:T:2011:764, paragraph 58 and the case-law cited), bearing in mind that it is for the Commission to demonstrate that the method used in the original investigation was not consistent with Article 2 of the Basic Regulation (see, to that effect, judgment in Huvis
v Council, paragraph 86 above, EU:T:2008:258, paragraph 51). On the other hand, to warrant a change in methodology, it is not sufficient that a new method be more appropriate than the old, on the assumption none the less that the old method is consistent with Article 2 of the Basic Regulation (judgment in Huvis
v Council, paragraph 86 above, EU:T:2008:258, paragraph 50).
92. It is in the light of those considerations that the merits of the present plea must be assessed.
93. In that respect, it is important, first, to note that it is not disputed that, in the contested decisions, the Commission, taking the view that there had been a change in circumstances, applied, for the calculation of the dumping margin, a different methodology from that applied during the original investigation.
94. It is apparent from the contested decisions that, during the refund investigation, the Commission calculated, first, an individual dumping margin for CHEMK and KF, respectively, before determining an average dumping margin for the CHEMK Group (‘the new method’). By contrast, during the original investigation, the institutions had grouped together all relevant data concerning CHEMK and KF’s domestic sales in the exporting country, costs of production, profitability and sales to the Union (‘the initial method’) (recital 31 of Decisions C(2012) 5577 final, C(2012) 5595 final, C(2012) 5596 final, C(2012) 5598 final and C(2012) 5611 final; recital 32 of Decisions C(2012) 5585 final and C(2012) 5588 final).
95. Those two methods are thus distinguished, as the Commission stated in its pleadings without being contradicted by RFA International, by the time at which the data concerning CHEMK and KF were grouped together for the purposes of establishing the CHEMK Group’s dumping margin. Under the new method, those data were grouped together at the end of the calculation of the dumping margin, since the Commission began by calculating an individual dumping margin, for CHEMK and KF, respectively, on the basis of an export price and normal value applicable to them individually, before adding together the amounts thus reached and determining an average dumping margin. By contrast, under the initial method, the institutions had from the beginning grouped together the data relating to CHEMK and KF, so that no distinctions were made with respect to the export price and normal value.
96. In those circumstances, it is appropriate, second, to examine whether the Commission was entitled to apply the new method during the refund investigation. In that respect, given that, as it confirmed at the hearing, RFA International does not question the compatibility of the new method with Article 2 of the Basic Regulation, it is appropriate to check whether the Commission has shown that circumstances had in fact changed and that that change warranted the use of the new method.
97. In that regard, it is apparent from the contested decisions that the Commission concluded that there had been a change in circumstances on account, in essence, of a change in the structure of the CHEMK Group and in the organisation of CHEMK and KF’s export sales. In that respect, the Commission found, during the original investigation, that, on the one hand, only CHEMK acted as exporting producer of the CHEMK Group, since all export sales of CHEMK and KF — the two producers of the group — were made through CHEMK, and that, on the other, CHEMK exported the goods through several related operators before selling them to the end buyers in the Union. By contrast, according to the Commission, during the refund investigation, both CHEMK and KF were to be considered exporting producers since both companies sold their production individually and directly to RFA International with a view to their export to the European Union (recital 32 of Decisions C(2012) 5577 final, C(2012) 5595 final, C(2012) 5596 final, C(2012) 5598 final and C(2012) 5611 final; recital 33 of Decisions C(2012) 5585 final and C(2012) 5588 final). Thus, according to the Commission, whereas, during the original investigation, the CHEMK Group carried out its exports by means of a single sales channel, exports were carried out, during the refund investigation, through two sales channels (recitals 41 and 46 of Decisions C(2012) 5577 final, C(2012) 5595 final, C(2012) 5596 final, C(2012) 5598 final and C(2012) 5611 final; recitals 42 and 47 of Decisions C(2012) 5585 final and C(2012) 5588 final). Next, the Commission found that, during the original investigation, it was virtually impossible to determine individual export prices for CHEMK and KF since the origin of the goods sold to independent customers in the Union was not specified on the sales lists, although the information was supplied during the refund investigation (recital 32 of Decisions C(2012) 5577 final, C(2012) 5595 final, C(2012) 5596 final, C(2012) 5598 final and C(2012) 5611 final; recital 33 of Decisions C(2012) 5585 final and C(2012) 5588 final). Finally, regarding the structure of the sales in the domestic market of the exporting country, the Commission observed that, in the original investigation, a related trader sold parts of the group’s production on that domestic market, while, during the refund investigation, all domestic sales were carried out directly by CHEMK and KF (recital 32 of Decisions C(2012) 5577 final, C(2012) 5595 final, C(2012) 5596 final, C(2012) 5598 final and C(2012) 5611 final; recital 33 of Decisions C(2012) 5585 final and C(2012) 5588 final).
98. It follows from consideration of the contested decisions that the conclusion as to the existence of a change in circumstances warranting a change in methodology was based, in essence, on the change in the structure of the CHEMK Group and in the organisation of its export sales as a result, in particular, of the integration of RFA International into that structure and of the changes to the export sales channels. The Commission thus identified CHEMK and KF as two exporting producers conducting their export sales through RFA International. In addition, on the domestic market of the exporting country, all sales were henceforth made directly by CHEMK and KF. Therefore, and in the light, moreover, of the possibility of having, contrary to what was the case during the original investigation, data enabling it to calculate the individual export prices for CHEMK and KF, the Commission applied the new method by calculating individual dumping margins for each of the two exporting producers before establishing, having regard to their membership of the CHEMK Group, a weighted average dumping margin for that group.
99. Thus, the CHEMK Group has undergone significant changes as a result, in particular, of the integration of RFA International into the group and in the organisation of export sales to the EU, as moreover admitted by RFA International both during the administrative procedure, in its letter of 20 June 2012, and, at the stage of these proceedings, in the reply. Furthermore, with regard to the export sales of the CHEMK Group, RFA International does not dispute that, while, during the original investigation, both the export sales of CHEMK and those of KF were carried out by CHEMK through several intermediaries, during the refund investigation, CHEMK and KF individually carried out export sales through RFA International.
100. It must be held that those changes in the structure of the CHEMK Group and in the organisation of its export sales to the Union represent a change in circumstances within the meaning of Article 11(9) of the Basic Regulation.
101. It should also be noted that this change in circumstances is such as to warrant the change of method used, in accordance with Article 11(9) of the Basic Regulation, since that change of method reflects the emergence of a second sales channel for the CHEMK Group and, thus, the change which occurred in the organisation of the sales of that group.
102. It should be recalled that, according to the new method, the Commission calculated individual dumping margins for each of the two exporting producers, CHEMK and KF, before determining an average dumping margin for the CHEMK Group. That calculation of individual dumping margins reflecting the duality of the CHEMK Group’s export channels requires the prior calculation of normal values and individual export prices for each of the two exporting producers of that group.
103. The arguments raised by RFA International in support of this plea are not such as to call those findings into question. Those arguments can be grouped, in essence, into three sets of arguments.
104. In a first series of arguments, RFA International disputes the grounds of the contested decisions on which the Commission based its conclusion as to the existence of a change in circumstances within the meaning of Article 11(9) of the Basic Regulation.
105. First, RFA International maintains that, both in the original investigation and in the refund investigation, there was only one exporting producer, so that there was no change in circumstances in that regard. Contrary to what the Commission states in the contested decisions, the institutions classified the CHEMK Group and not the company CHEMK as an exporting producer in the original investigation. Moreover, RFA International submits that, during the refund investigation, CHEMK and KF together constituted an exporting producer since those two companies belonged to a single economic entity.
106. However, while it is true that, as argued by RFA International, it is apparent from recital 62 of the Initial Regulation that the institutions had classified the CHEMK Group as an exporting producer, the fact remains that, as is apparent from the contested decisions and as stated by the Commission during the written procedure, without it being disputed by RFA International, only the company CHEMK exported the group’s goods to the Union.
107. In those circumstances, it must be considered that the mere formal classification, during the original investigation, of the CHEMK Group as an exporting producer is insufficient to show that the institutions intended, during the original investigation, to base the choice of the initial method on the finding that the CHEMK Group was to be classified as an exporting producer, rather than on the finding put forward by the Commission in its pleadings, that the CHEMK Group conducted its exports through only one of its two producers. It follows that, since, as is apparent from paragraph 100 above, a change in circumstances occurred with respect to the organisation of the CHEMK Group’s export sales, the mere formal classification, during the original investigation, of that group as an exporting producer does not invalidate the finding in paragraph 101 above that that change was such as to warrant the change of method used by the Commission.
108. Furthermore, with regard to the concept of a single economic entity, it should be noted that that concept was developed by settled case-law for the purpose of determining the normal value within the meaning of Article 2(1) of the Basic Regulation (judgment in Council and Commission v Interpipe Niko Tube and Interpipe NTRP, paragraph 35 above, EU:C:2012:78, paragraph 55). According to that case-law, where a producer entrusts tasks normally falling within the responsibilities of an internal sales department to a company, responsible for the distribution of its products, which it controls financially, the use, for the purposes of determining the normal value, of the prices paid by the first independent buyer to that distribution company is warranted, given that those prices could be regarded as being those of the first sale of the product made in the ordinary course of trade, within the meaning of the first subparagraph of Article 2(1) of the Basic Regulation (see, to that effect, judgments of 5 October 1988 in Brother Industries
v Council, 250/85, ECR, EU:C:1988:464, paragraph 15, and of 10 March 1992 in Canon
v Council, C‑171/87, ECR, EU:C:1992:106, paragraphs 9 et 11).
109. Furthermore, it is important to note that that case-law was applied, by analogy, to the adjustments made under Article 2(10)(i) of the Basic Regulation to the export price (judgment in Interpipe Niko Tube and Interpipe NTRP
v Council, paragraph 35 above, EU:T:2009:62, paragraph 177). In that context, it has been expressly held that, if a producer exports his goods to the European Union through a legally separate undertaking, but over which it holds economic control, the requirement of a finding reflecting the economic reality of the relationship between the producer and that sales company rather militates in favour of the application of the single economic entity concept when calculating the export price (judgment in Council and Commission
v Interpipe Niko Tube and Interpipe NTRP, paragraph 35 above, EU:C:2012:78, paragraph 55).
110. It follows that the concept of a single economic entity is based, in particular, on the need to take account of the economic reality of the relationship between the producer and its sales company, the latter performing the duties of an integrated sales department for that producer.
111. In contrast, by the present argument, as it is summarised in paragraph 105 above, RFA International draws different conclusions from the concept of a single economic entity. Its argument is based on the premise that the fact that two producers belong to the same group and form a single economic entity together with a legally distinct company also belonging to that group and responsible for the duties of an integrated sales service places an obligation on the institutions to find that only that entity may be classified as an exporting producer.
112. Without it even being necessary to establish whether CHEMK and KF should be considered as belonging to a single economic entity, it should be noted that neither that premise, nor, therefore, the argument which follows therefrom, may be upheld. On the one hand, that premise disregards the economic reality which is that, despite belonging, as sister companies owned by the same shareholders, to the same group, or even, assuming it is established, to a single economic entity, the two producers in question constitute separate legal entities which, during the refund investigation, produced and marketed their goods individually. In other words, that premise disregards the existence of two distinct sales channels. On the other hand, RFA International has failed to explain why, where a single economic entity is found to exist, that economic reality should be disregarded.
113. Secondly, RFA International claims that the Commission incorrectly found that new export sales channels had come to light, since sales made to it by CHEMK and KF were to be considered, having regard to the existence of a single economic entity, as intragroup sales.
114. For the same reasons as those set out in paragraphs 108 to 112 above, that argument cannot be accepted.
115. Thirdly, RFA International argues that the Commission erred in finding that it would have been impossible, during the original investigation, to establish sales data per manufacturing entity, even though it had omitted, during the investigation, to ask for the submission of such data. According to RFA International, the Commission may not justify a change in circumstances by a change in its method of investigation.
116. RFA International’s arguments in that regard are ineffective.
117. On the one hand, as is clear from paragraphs 100 to 102 above, the conclusion relating to the existence of a change in circumstances justifying, under Article 11(9), the change in method used by the Commission may rest on the single change, acknowledged by RFA International, in the structure and organisation of the CHEMK Group’s export sales. In those circumstances, even assuming that, as argued by RFA International, the Commission omitted to ask for the submission of individual data during the original investigation, that omission would not vitiate the finding, in the contested decisions, of the existence of a change in circumstances.
118. On the other hand, it is apparent from the contested decisions that, according to the Commission, assuming that it did have available the necessary data to establish individual export prices for each producer, it could not have made such individual calculations since there was, during the original investigation, only one exporting producer (recitals 42 and 46 of Decisions C(2012) 5577 final, C(2012) 5595 final, C(2012) 5596 final, C(2012) 5598 final and C(2012) 5611 final; recitals 43 and 47 of Decisions C(2012) 5585 final and C(2012) 5588 final). RFA International does not dispute that finding, according to which individual calculations could not, in any event, be made during the original investigation.
119. Furthermore, and in any event, it is apparent from the material in the case-file that RFA International’s arguments are unfounded also. While it is true that the Commission has not explicitly requested to be provided with data on the export sales made by KF through CHEMK, it none the less follows from those factors that, as stated by the Commission in its pleadings, that institution did in fact ask CHEMK and KF to provide it with data that would have allowed it to calculate, individually, the normal value and the export price for each of those two companies. First, by letter of 9 March 2007, the Commission requested clarification of the transactions appearing in the information provided by CHEMK and, in particular, of their origin. Next, in the same letter, the Commission requested clarification as to CHEMK’s export sales. Finally, by letter of 20 April 2007, the Commission sought clarification as to export sales made through certain intermediate traders which were referred to therein. It is clear from the material in the case-file that, in response to those requests, the CHEMK Group failed to provide the personal data requested.
120. In that regard, it is also important to state that, in the present case, RFA International has not disputed the content of the requests for data referred to in paragraph 119 above. Furthermore, it has put forward no substantial argument to show that such data would not have enabled the Commission to calculate, on an individual basis, the normal value and export price concerning, respectively, CHEMK and KF. Instead, RFA International stated at the hearing that ‘perhaps ... the Commission [was] right ... when it [had] stated that it had asked for data in relation to the intermediate operators’, and added ‘that those intermediate operators were not sufficiently audited [to be able] to provide such information’.
121. Fourthly, RFA International submits that the alleged change of circumstances in the domestic market of the exporting country was negligible and could not be regarded as warranting a change in method.
122. Besides the fact that, by the arguments recalled in essence in the previous paragraph, RFA International admits the existence of a change in circumstances in the domestic market of the exporting country, it must be held that, even assuming that, as it claims, that change, because negligible, may not be used to justify a change of method, the fact remains that, as the Commission correctly explained in its pleadings, the change of method, including with respect to the determination of the normal value, is based on a set of factual changes. These cover, in particular, changes in the structure and organisation of the CHEMK Group’s export sales, which were, as is clear from paragraphs 100 to 102 above, in themselves sufficient to warrant the change of method used by the Commission.
123. In that regard, it is important to state that, as has already been noted in paragraph 102 above, it is precisely the existence of two exporting producers that warrants the application of the new method by which the Commission establishes, on the basis of normal values and individual export prices, two individual dumping margins for, respectively, CHEMK and KF, before establishing an average dumping margin for the CHEMK Group.
124. It follows that, even assuming that the considerations set out by the Commission in the contested decisions regarding a possible change in the market of the exporting country are vitiated by error, such an error would not be such as to affect the legality of the contested decisions.
125. In those circumstances, and without it being necessary to determine whether the Commission was entitled to classify the change in the market of the exporting country as a change in circumstances within the meaning of Article 11(9) of the Basic Regulation, it must be held that the arguments made in that regard by RFA International are ineffective.
126. Fifthly, RFA International claims that the statement in the contested decisions that the new method is more accurate is irrelevant since considerations of expediency do not warrant a change in circumstances or, therefore, of method. In addition, the Commission does not argue that the initial method was not consistent with Article 2 of the Basic Regulation.
127. Admittedly, according to the case-law cited in paragraph 91 above, in order for a change in methodology to be justified, it is not sufficient that a new method be more appropriate than the old method, in so far as the old method is consistent with Article 2 of the Basic Regulation.
128. However, in this case, it must be recalled that, as has already been noted, the Commission expressly based the application of a new method on the existence of a change in circumstances.
129. In those circumstances, the arguments alleging that the Commission supported the change in method on the basis of considerations of expediency and did not argue that the initial method was not consistent with Article 2 of the Basic Regulation do not vitiate the contested decisions and must therefore be rejected as ineffective.
130. In a second set of arguments, RFA International complains, in essence, that the Commission did not demonstrate that the alleged change in circumstances would have had an impact on the initial method used by the institutions, even though, under Article 11(9) of the Basic Regulation, the change in method must be necessary and directly related to the change in circumstances. However, the change in circumstances asserted by the Commission mainly concerns changes in the structure of export sales of the CHEMK Group, while the new method mainly affects the normal value. Moreover, the Commission failed to explain how changes relating to the structure of the group’s export sales could have affected the method of calculating the normal value, the export price or the dumping margin.
131. In the light of the considerations set out in paragraphs 101, 102, 122 and 123 and above, those arguments must be rejected. As has already been noted, the application of the new method, including in so far as it involved the calculation of an individual normal value for each of the producers, was warranted, under Article 11(9) of the Basic Regulation, by the change in circumstances relating to the structure and organisation of the sales of the CHEMK Group.
132. In a third set of arguments, RFA International maintains that, when applying Article 11(9) of the Basic Regulation, the Commission has limited discretion, with the result that, in the present case, the Commission was required to apply the initial method during the refund investigation.
133. First, RFA International submits that Article 18.3.1 of the Anti-Dumping Agreement gives precedence, in refund investigations, to the method for calculating the dumping margin used in the most recent investigation covering the dumping over the provisions of the Anti-Dumping Agreement.
134. In that regard, it should be noted that, according to settled case-law, having regard to their nature and structure, the WTO agreements are not in principle among the rules in the light of which the Courts of the European Union are to review the legality of measures adopted by the institutions of the European Union under Article 263, first paragraph, TFEU (judgments of 23 November 1999 in Portugal
v Council, C‑149/96, ECR, EU:C:1999:574, paragraph 47; 9 January 2003, Petrotub and Republica
v Council, C‑76/00 P, ECR, EU:C:2003:4, paragraph 53; and Ikea Wholesale, paragraph 37 above, EU:C:2007:547, paragraph 29). However, where the European Union intended to implement a particular obligation assumed in the context of the WTO, or where the EU measure refers expressly to precise provisions of the WTO agreements, it is for the Courts of the European Union to review the legality of the EU measure in question in the light of the WTO rules (judgments in Portugal
v Council, EU:C:1999:574, paragraph 49; Petrotub and Republica v Council, EU:C:2003:4, paragraph 54; and Ikea Wholesale, paragraph 37 above, EU:C:2007:547, paragraph 30).
135. It is apparent from recital 3 in the preamble to the Basic Regulation that the purpose of that regulation is, inter alia, to transpose into EU law as far as possible the rules contained in the Anti-Dumping Agreement, which include, in particular, those relating to the duration and review of the anti-dumping duties (see, by analogy, judgment in Petrotub and Republica
v Council, paragraph 134 above, EU:C:2003:4, paragraph 55).
136. It follows that the provisions of the Basic Regulation must, so far as is possible, be interpreted in a manner consistent with the corresponding provisions of the Anti-Dumping Agreement (see judgment in Petrotub and Republica
v Council, paragraph 134 above, EU:C:2003:4, paragraph 57 and the case-law cited).
137. On the one hand, the Anti-Dumping Agreement does not include any provisions equivalent to those of Article 11(9) of the Basic Regulation, with the result that the rule contained in that provision may not be considered a transposition of one of the detailed rules of that agreement which must be interpreted in accordance with the latter (Opinion of Advocate General Cruz Villalón in Valimar, C‑374/12, ECR, EU:C:2014:118, point 74).
138. On the other hand, it should be noted that Articles 18.3 and 18.3.1 of the Anti-Dumping Agreement provide as follows:
‘18.3. Subject to subparagraphs 3.1 and 3.2, the provisions [of the Anti-Dumping Agreement] shall apply to investigations, and reviews of existing measures, initiated pursuant to applications which have been made on or after the date of entry into force for a Member of the WTO Agreement.
18.3.1 	With respect to the calculation of margins of dumping in refund procedures under paragraph 3 of Article 9, the rules used in the most recent determination or review of dumping shall apply.’
139. It therefore follows from the wording and context of the provisions referred to in paragraph 138 above that, unlike Article 11(9) of the Basic Regulation, which identifies the method applicable in any refund investigation, Article 18.3.1 of the Anti-Dumping Agreement is part of the final provisions of that agreement and, more specifically, of those set out in Article 18.3 thereof, which determine its applicability in time. RFA International itself also appears to recognise as much in its pleadings since it states that Article 18.3.1 of the Anti-Dumping Agreement ‘would apply even if the original method for calculation of the dumping margin, originally used before the entry into force of the [Anti-Dumping Agreement], has become inconsistent with the [Anti-Dumping Agreement] after the [Anti-Dumping Agreement]’s entry into force’.
140. It follows that, as correctly pointed out by the Commission, Article 11(9) of the Basic Regulation does not implement Article 18.3.1 of the Anti-Dumping Agreement, with the result that the latter provision is irrelevant in the context of this plea.
141. Secondly, RFA International claims that the Commission fettered its discretion in undertaking, in point 3.2.3(a) of the interpretative notice, to apply the initial method during the refund investigation.
142. However, according to settled case-law, an interpretative note like the interpretative notice which, according to its preamble, sets out the guidelines regarding the application of Article 11(8) of the Basic Regulation cannot have the effect of modifying the mandatory rules contained in a regulation (judgment of 12 February 2014 in Beco
v Commission, T‑81/12, ECR, EU:T:2014:71, paragraph 50; see also, to that effect, judgments of 28 January 1992 in Soba, C‑266/90, ECR, EU:C:1992:36, paragraph 19, and of 22 April 1993 in Peugeot
v Commission, T‑9/92, ECR, EU:T:1993:38, paragraph 44).
143. According to established case-law, the Commission is bound by the guidelines and notices that it issues, but only to the extent that they do not depart from higher-ranking rules (judgment in Beco
v Commission, paragraph 142 above, EU:T:2014:71, paragraph 51; see also, by analogy, judgment of 2 December 2010 in Holland Malt
v Commission, C‑464/09 P, ECR, EU:C:2010:733, paragraph 47 and the case-law cited).
144. It follows that, contrary to what RFA International claims, it does not flow from point 3.2.3(a) of the interpretative notice that the Commission was required, in all circumstances and without exception, to apply, during a refund investigation, the same method as that applied during the original investigation. Such a restriction of the Commission’s discretion would be inconsistent with the possibility, established under Article 11(9) of the Basic Regulation, of changing method in the event of a change in circumstances.
145. In the light of the foregoing, the second plea put forward by the applicant must be rejected.
146. In the light of all the foregoing considerations, the action must be dismissed in its entirety.
Costs
147. Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since RFA International has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
Operative part
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1. Dismisses the action;
2. Orders RFA International, LP to pay the costs.