Case T‑487/14

(publication by extracts)

Chelyabinsk electrometallurgical integrated plant OAO (CHEMK)

and

Kuzneckie Ferrosplavy OAO (KF)

v

European Commission

(Dumping — Imports of ferro-silicon originating in Russia — Definitive anti-dumping duty — Expiry review — Determination of the export price — Single economic entity — Reflection of the anti-dumping duty in resale prices in the European Union — Application of a methodology different from that used in an earlier investigation — Continuation or recurrence of dumping and injury — Article 2(9), Article 3 and Article 11(9) and (10) of Regulation (EC) No 1225/2009 (now Article 2(9), Article 3 and Article 11(9) and (10) of Regulation (EU) 2016/1036))

Summary — Judgment of the General Court (Ninth Chamber), 15 November 2018

See the text of the decision. (see para. 32)

The existence of a single economic entity between a third-country exporting producer and an entity tasked with importing its products and their first sale in the European Union does not preclude the application of Article 2(9) of Regulation No 1225/2009, on protection against dumped imports from countries not members of the European Community, in order to determine a reliable export price at the EU frontier. On the contrary, such a situation is the most developed case of association between an exporter and an importer, and one which justifies, in the words of that provision, an export price at the EU frontier level being constructed on the basis of the price at which the imported products are first resold to an independent buyer in the territory of the Member States, applying the appropriate adjustments provided for in the second and third subparagraphs of that provision. (see para. 42)

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 Regulation No 1225/2009, on protection against dumped imports from countries not members of the European Community, on the ground that the adjustments determined in respect of selling, general and administrative costs for importation into the European Union are excessive, itself to supply specific evidence and calculations justifying those claims and, in particular, the alternative rate in relation to turnover that it suggests in order to represent the amount of those costs which it considers appropriate. That is in particular relevant when the interested party argues that the Commission has in its possession only overall data likely to cover not only the operations between the arrival at the EU frontier and the first resale to an independent buyer on the territory of the EU Member States, but also the operations prior to that arrival. (see para. 45)

In the context of the construction of export price under Article 2(9) of Regulation No 1225/2009, on protection against dumped imports from countries not members of the European Community, and in the context of the adjustments which may be made to it in order to arrive at a fair comparison with normal value under Article 2(10) of that regulation, the selling, general and administrative costs and a profit margin corresponding to the activity of an importer of the products into the European Union may be deducted from the price of their first resale to an independent buyer on the Member States’ territory in order to calculate a reliable export price when importation is carried out by an entity legally distinct from the producer, but which constitutes a single economic entity with it. (see para. 51)

In the context of an expiry review pursuant to Article 11(2) of Regulation No 1225/2009, on protection against dumped imports from countries not members of the European Community, the exception to using the same methodology for calculating the export price for the review investigation and the initial investigation has to be interpreted strictly, reflecting the wording and purpose of the provision authorising that exception. (see para. 60)