OPINION OF ADVOCATE GENERAL

PIKAMÄE

delivered on 13 January 2022 ( 1 )

Case C‑260/20 P

European Commission

v

Hansol Paper Co. Ltd

(Appeal – Dumping – Implementing regulation (EU) 2017/763 – Imports of certain lightweight thermal paper originating in the Republic of Korea – Definitive anti-dumping duty – Calculation of the dumping margin – Calculation of the injury margin – Determination of injury)

I. Introduction

1. By its appeal, the European Commission seeks to have set aside the judgment of the General Court of the European Union of 2 April 2020, Hansol Paper Co. Ltd v Commission (T‑383/17, not published, EU:T:2020:139; ‘the judgment under appeal’), which allowed the action brought by Hansol Paper Co. Ltd (‘Hansol’) – an undertaking established in South Korea and active in the production and export of thermal paper – against Commission Implementing Regulation (EU) 2017/763 of 2 May 2017 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain lightweight thermal paper originating in the Republic of Korea ( 2 ) (‘the contested regulation’), by annulling that regulation in so far as it concerned that undertaking.

2. The present appeal provides the Court with the opportunity to clarify the interpretation of the provisions of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union ( 3 ) (‘the basic regulation’), particularly those empowering the Commission to make a determination of dumping liable to cause injury to the EU industry. The legal questions to be decided by the Court relate in concrete terms to the various stages of the examination which the Commission is required to carry out in applying that instrument of trade defence, and to the powers of investigation which are available to it in relation to economic agents suspected of unfair trade practices justifying, where appropriate, anti-dumping measures.

II. Legal background

A. WTO law

3. By Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994), ( 4 ) the Council of the European Union approved the Agreement establishing the World Trade Organisation (WTO), signed in Marrakesh on 15 April 1994, and also the agreements in Annexes 1, 2 and 3 to that agreement, which include the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (‘the anti-dumping agreement’). ( 5 )

4. Article 2 of the anti-dumping agreement, entitled ‘Determination of dumping’, provides: ‘2.1 For the purpose of this Agreement, a product is to be considered as being dumped, i.e. introduced into the commerce of another country at less than its normal value, if the export price of the product exported from one country to another is less than the comparable price, in the ordinary course of trade, for the like product when destined for consumption in the exporting country. 2.2 When there are no sales of the like product in the ordinary course of trade in the domestic market of the exporting country or when, because of the particular market situation or the low volume of the sales in the domestic market of the exporting country …, such sales do not permit a proper comparison, the margin of dumping shall be determined by comparison with a comparable price of the like product when exported to an appropriate third country, provided that this price is representative, or with the cost of production in the country of origin plus a reasonable amount for administrative, selling and general costs and for profits.’

B. The basic regulation

5. Article 2 of the basic regulation provides, in the relevant parts: ‘1. 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 127 of Commission Implementing Regulation (EU) 2015/2447 [ ( 6 )]. 2. Sales of the like product intended for domestic consumption shall normally be used to determine the normal value if such sales volume constitutes 5% or more of the sales volume of the product under consideration to the Union. However, a lower volume of sales may be used when, for example, the prices charged are considered representative for the market concerned. 3. When there are no or insufficient sales of the like product in the ordinary course of trade, or where, because of the particular market situation, such sales do not permit a proper comparison, the normal value of the like product shall be calculated on the basis of the cost of production in the country of origin plus a reasonable amount for selling, general and administrative costs and for profits, or on the basis of the export prices, in the ordinary course of trade, to an appropriate third country, provided that those prices are representative. … 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. … 11. Subject to the relevant provisions governing fair comparison, the existence of margins of dumping during the investigation period shall normally be established on the basis of a comparison of a weighted average normal value with a weighted average of prices of all export transactions to the Union, or by a comparison of individual normal values and individual export prices to the Union on a transaction-to-transaction basis. However, a normal value established on a weighted average basis may be compared to prices of all individual export transactions to the Union, if there is a significant difference in the pattern of export prices among different purchasers, regions or time periods, and if the methods specified in the first sentence of this paragraph would not reflect the full degree of dumping being practised. This paragraph shall not preclude the use of sampling in accordance with Article 17. 12. The dumping margin shall be the amount by which the normal value exceeds the export price. Where dumping margins vary, a weighted average dumping margin may be established.’

6. Article 3(3) of the basic regulation provides: ‘3. With regard to the volume of the dumped imports, consideration shall be given to whether there has been a significant increase in dumped imports, either in absolute terms or relative to production or consumption in the Union. With regard to the effect of the dumped imports on prices, consideration shall be given to whether there has been significant price undercutting by the dumped imports as compared with the price of a like product of the Union industry, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which would otherwise have occurred, to a significant degree. No one or more of those three factors can necessarily give decisive guidance.’

7. Article 6(7) and (8) of the basic regulation provides: ‘7. The complainants, importers and exporters and their representative associations, users and consumer organisations, which have made themselves known in accordance with Article 5(10), as well as the representatives of the exporting country, may, upon written request, inspect all information made available by any party to an investigation, as distinct from internal documents prepared by the authorities of the Union or its Member States, which is relevant to the presentation of their cases and not confidential within the meaning of Article 19, and is used in the investigation. Such parties may respond to such information and their comments shall be taken into consideration, wherever they are sufficiently substantiated in the response. 8. Except in the circumstances provided for in Article 18, the information which is supplied by interested parties and upon which findings are based shall be examined for accuracy as far as possible.’

8. Article 9(3) and (4) of the basic regulation provides: ‘3. For proceedings initiated pursuant to Article 5(9), injury shall normally be regarded as negligible where the imports concerned represent less than the volumes set out in Article 5(7). For the same proceeding, there shall be immediate termination where it is determined that the margin of dumping is less than 2%, expressed as a percentage of the export price, provided that it is only the investigation that shall be terminated where the margin is below 2% for individual exporters and they shall remain subject to the proceeding and may be reinvestigated in any subsequent review carried out for the country concerned pursuant to Article 11. 4. Where the facts as finally established show that there is dumping and injury caused thereby, and the Union interest calls for intervention in accordance with Article 21, a definitive anti-dumping duty shall be imposed by the Commission acting in accordance with the examination procedure referred to in Article 15(3). Where provisional duties are in force, the Commission shall initiate this procedure no later than one month before the expiry of such duties.’

9. Article 18(1) and (3) of the basic regulation provides: ‘1. In cases in which any interested party refuses access to, or otherwise does not provide, necessary information within the time limits provided for in this Regulation, or significantly impedes the investigation, provisional or final findings, affirmative or negative, may be made on the basis of the facts available. Where it is found that any interested party has supplied false or misleading information, that information shall be disregarded and use may be made of facts available. Interested parties shall be informed of the consequences of non-cooperation. … 3. Where the information submitted by an interested party is not ideal in all respects, it shall nevertheless not be disregarded, provided that any deficiencies are not such as to cause undue difficulty in arriving at a reasonably accurate finding and that the information is appropriately submitted in good time and is verifiable, and that the party has acted to the best of its ability. …’

III. Background to the dispute, procedure before the General Court and the judgment under appeal

A. Background to the dispute

10. On 18 February 2016, following a complaint, the Commission published a notice of initiation of an anti-dumping proceeding concerning imports of certain lightweight thermal paper originating in South Korea. ( 7 )

11. The product subject to the investigation was lightweight thermal paper weighing 65 g/m2 or less; in rolls of a width of 20 cm or more, a weight of the roll (including the paper) of 50 kg or more and a diameter of the roll (including the paper) of 40 cm or more (‘jumbo rolls’); with or without a base coat on one or both sides; coated with a thermo-sensitive substance (that is a mixture of dye and a developer that react and form an image when heat is applied) on one or both sides; and with or without a top coat, originating in South Korea, falling within CN codes ex48099000, ex48119000, ex48169000 and ex48239085 (‘the product under consideration’).

12. The investigation of dumping and injury covered the period from 1 January to 31 December 2015 (‘the investigation period’). The examination of trends relevant for the assessment of injury covered the period from 1 January 2012 to the end of the investigation period.

13. The applicant and respondent to the appeal, Hansol, established in South Korea, is active in the production and export of the product under consideration, in particular to the Union. Its sales of that product in the Union during the investigation period were made to unrelated customers, as well as to a related trader, Hansol Europe BV and to four related converters, namely Schades Ltd, Schades Nordic A/S, Heipa technische Papiere GmbH (‘Heipa’) and R+S Group GmbH (‘R+S’). The activity performed by the related converters was, amongst other things, to transform the product under consideration into new products, known as ‘small rolls’, sold in the European Union to unrelated or related customers.

14. Another Korean exporting producer, Hansol Artone Co. Ltd (‘Artone’), which was related to the applicant, cooperated in the anti-dumping investigation. Artone merged with the applicant on 3 March 2017.

15. On 18 February 2016, the applicant received the anti-dumping questionnaire intended for exporting producers of the product under consideration.

16. On 19 February 2016, in view of the absence or limited number of sales of the product under consideration by some of the applicant’s related companies to unrelated customers in the European Union, the applicant requested that Schades Nordic, Heipa and R+S be exempted from the obligation on companies related to the exporting producer to complete the questionnaire in Annex I to the anti-dumping questionnaire.

17. On 23 February 2016, the Commission agreed to that request, while reserving the right to request further information.

18. On 7 March 2016, after examining certain information provided by the applicant, the Commission decided that Schades Nordic, Heipa and R+S should respond to Sections F and G of the anti-dumping questionnaire, relating to production costs and profitability, and complete Annex I thereto.

19. On 8 March 2016, the applicant requested the intervention of the Hearing Officer concerning the Commission’s requests to Schades Nordic, Heipa and R+S. In particular, the applicant referred to the significant workload involved in providing sales and cost data relating to the small rolls, with which the procedure was not concerned, and the irrelevance of that request, in so far as it was not possible to determine whether the small rolls had been produced from the applicant’s jumbo rolls or from other sources.

20. On 10 March 2016, a hearing was held with the Commission, chaired by the Hearing Officer.

21. On 16 and 17 March 2016, the Commission carried out a visit at Schades’ premises.

22. On 21 March 2016, the Commission informed the applicant that the requests for information sent on 7 March 2016 were henceforth limited to Schades.

23. On 15 April 2016, the Commission acknowledged receipt of the applicant’s and Artone’s responses to the anti-dumping questionnaires and of Hansol Europe’s and Schades’ response to Annex I to the anti-dumping questionnaire.

24. Between 15 June and 26 August 2016, the Commission carried out verification visits at the premises of the applicant, Artone, Hansol Europe and Schades.

25. On 16 November 2016, the Commission adopted Implementing Regulation (EU) 2016/2005 imposing a provisional anti-dumping duty on imports of certain lightweight thermal paper originating in the Republic of Korea. ( 8 )

26. On 17 November 2016, a disclosure document containing the Commission’s provisional findings was sent to the applicant. The applicant made its observations on those provisional findings on 8 December 2016.

27. On 13 December 2016, at the request of the applicant, a hearing was held with the Commission, chaired by the Hearing Officer.

28. On 17 February 2017, a final disclosure document containing the Commission’s definitive findings was sent to the applicant. The applicant made its observations on that document on 27 February 2017.

29. On 2 and 22 March 2017, at the request of the applicant, hearings were held with the Commission, chaired by the Hearing Officer.

30. On 20 and 23 March 2017, the Commission presented, respectively, additional definitive findings and revised definitive findings, on which the applicant submitted its comments.

31. On 2 May 2017, the Commission adopted the contested regulation, on the basis inter alia of Article 9(4) of the basic regulation.

32. Article 1 of the contested regulation provides for the imposition of a definitive anti-dumping duty on imports of the product under consideration, in the form of a fixed amount of EUR 104.46 per tonne net.

B. Procedure before the General Court and the judgment under appeal

33. By application lodged at the Court Registry on 20 June 2017, Hansol brought an action for annulment of the contested regulation in so far as it concerned that undertaking.

34. In its defence of 22 September 2017, the Commission contended that the action for annulment should be dismissed and that Hansol should be ordered to pay the costs.

35. By order of 27 November 2017, the General Court granted the European Thermal Paper Association (‘ETPA’) leave to intervene in support of the form of order sought by the Commission.

36. By the judgment under appeal, the Court allowed Hansol’s action, on the basis of illegalities identified in the course of examining the pleas raised. Consequently, the Court annulled the regulation at issue in so far as it concerned Hansol.

37. The aspects of the Court’s legal reasoning that are considered relevant to the present appeal are summarised in the paragraphs which follow.

38. The first plea in law at first instance alleged infringement of Article 2(11) and Article 17(2) of the basic regulation and unlawful calculation of the applicant’s dumping margin. The Court examines the first part of the first plea in paragraphs 57 to 69, and the second part in paragraphs 70 to 93 of the judgment under appeal.

39. The first part of the first plea was based on the Commission having applied the sampling technique, and on infringement of Article 17(2) of the basic regulation. The Court observes, in paragraphs 63 to 64 of the judgment under appeal, that the premiss that the Commission applied Article 17(1) of the basic regulation, where it decided to use Schades’ data in order to calculate the dumping margin for sales of the product concerned to related converters, is incorrect. In particular, the Court observes, in paragraph 68, that ‘it is apparent from recital 32 of the [contested] regulation that the Commission expressly referred to Article 2(9) of the basic regulation as the legal basis for the construction of the export price for the sales of the product concerned made to the related converters’. The Court therefore rejects that part of the first plea.

40. The second part of the first plea at first instance relates to the calculations made by the Commission with regard to the dumping margin on sales of the product concerned to the European Union. It is divided into two complaints.

41. The Court examines the first complaint raised under the second part of the first plea in paragraphs 84 to 87 and 92 of the judgment under appeal. In those paragraphs, the Court observes, first, that the Commission had information available to it which had come from the related converter Schades Nordic, even though Schades Nordic itself had not responded to the anti-dumping questionnaire. It also notes that ‘the Commission decided to use Schades’ data in order to calculate the dumping margin on the sales made by the applicant to the three other related converters’. However, the Court observes that ‘in the light of the fact that the Commission knew that part of the sales of the product concerned to Schades had been resold without conversion to independent customers, it should have reflected that in the sales of the product concerned to the other related converters. By failing to take that factor into consideration, the Commission gave too much weight to sales to the related converters for conversion into small rolls, thereby increasing the actual dumping carried out by the applicant’.

42. Consequently, the Court concludes, in paragraphs 87 and 92, that ‘since the calculations made by the Commission do not reflect the full extent of the dumping practised by the applicant, an infringement of Article 2(11) of the basic regulation must be found’.

43. As regards the second complaint, the Court concludes, in paragraph 90, that ‘there is no evidence, particularly put forward by the applicant, allowing it to be concluded that the method used by the Commission and the adjustments made to take into account the specific situation of the case are contrary to Article 2(11) of the basic regulation’.

44. In paragraphs 94 to 121, the Court examines the second plea at first instance, which is divided into two parts.

45. The Court’s main line of reasoning, as regards the first part of the second plea, appears in paragraphs 100 to 106 of the judgment under appeal.

46. In the first place, the Court rejects the Commission’s plea of inadmissibility. It holds, in paragraph 100 of the judgment under appeal, that ‘even if the applicant requested the establishment of a fixed anti-dumping duty rather than an ad valorem anti-dumping duty, it remains admissible to contest the level of the fixed duty imposed by the Commission’.

47. In paragraph 105 of the judgment under appeal, the Court goes on to observe, first, that ‘for the reasons set out in the context of first complaint in the second part of the first plea in law …, the calculations made by the Commission do not reflect the full degree of dumping practised by the applicant’. The Court holds that ‘that error, which is connected with the weighting used by the Commission, thus affects also the establishment of the definitive fixed anti-dumping duty’. Without further explanation, the Court states that the duty ‘thus exceeds the dumping actually practised by the applicant in infringement of the second subparagraph of Article 9(4) of the basic regulation’.

48. The second part of the second plea is addressed in paragraphs 107 to 119 of the judgment under appeal. It is based on infringement of the principle of good administration. The Court rejects that part of the second plea.

49. In paragraphs 122 to 143 of the judgment under appeal, the Court examines the third plea at first instance, alleging wrongful application of Article 2(9) and (10) of the basic regulation, in so far as the Commission erroneously deducted undue allowances for sales of small rolls made from jumbo rolls sourced by Schades from EU producers. The Court rejects that plea as partly inadmissible and partly unfounded.

50. In paragraphs 144 to 160 of the judgment under appeal, the Court examines the fourth plea at first instance, alleging infringement of Article 2(1) of the basic regulation, in so far as the Commission erroneously constructed the normal value pursuant to Article 2(3) of that regulation.

51. In paragraph 152 of the judgment under appeal, the Court begins its interpretation of the second subparagraph of Article 2(1) and Article 2(3) of the basic regulation, observing that there is a difference between the situations contemplated by the second subparagraph of Article 2(1) of the basic regulation (the first situation) and by the first subparagraph of Article 2(3) (the second situation).

52. Referring to the contested regulation, the Court notes that the Commission based its calculation of the normal value of Artone on the second situation. It concludes in paragraph 157 that ‘the circumstances put forward by the Commission according to which the applicant’s and Artone’s “cost structure” or “sales prices” were significantly different (recital 21 of the [contested] regulation) are not covered by the derogations from the method of establishing the normal value on the basis of actual prices which … are exhaustive in nature’. It also observes that, as regards the fact that, ‘for one of the two product types concerned, sold by the applicant, the domestic sales quantities were found to be unrepresentative, no evidence adduced by the Commission allows it to be determined whether that circumstance related to the product type, referred to in recital 20 of that implementing regulation, which was not sold by Artone. Furthermore, and in any event, that finding has no bearing on the circumstance put forward by the applicant that the two product types at issue had not been sold by Artone on its domestic market’.

53. In paragraph 158 of the judgment, the Court concludes that ‘the Commission infringed Article 2(1) of the basic regulation in the context of the calculation of the normal value of Artone’.

54. In paragraphs 161 to 213 of the judgment under appeal, the Court examines the fifth plea at first instance, alleging infringement of Article 1(1) and Article 3(1) to (3) and (5) to (8) of the basic regulation, the case-law of the EU Courts and the decisions of the WTO, the Commission’s past decision-making practice and the principles of fair comparison and of equal treatment in the injury margin calculation.

55. In paragraphs 162 to 169, the Court explains why it considers that the fifth plea is admissible. In particular, the Court holds that, by that plea, the applicant calls into question the determination of the injury and the causal link, inasmuch as the method used by the Commission to determine the export price did not allow a correct evaluation of the real injury and, in particular, of price effects.

56. In paragraphs 170 to 177 of the judgment under appeal, the Court examines the first part of the fifth plea, alleging infringement of Article 1(1) and Article 3(2), (3) and (6) of the basic regulation by including the resale of small rolls in the injury margin calculation. It observes, in paragraph 174, that the applicant’s premiss that ‘the analysis of the injury suffered by the Union industry is based on an erroneous comparison of, on the one hand, the small rolls sold by the applicant’s related converters and, on the other hand, the jumbo rolls sold by the Union industry’ is in fact incorrect. It rejects the first part of the fifth plea as unfounded.

57. In paragraphs 178 to 205, the Court examines the second part of the fifth plea, alleging infringement of Article 3(1) to (3) and (5) to (8) of the basic regulation, the case-law of the EU Courts, the decisions of the WTO, the Commission’s previous decision-making practice and the principles of fair comparison and of equal treatment in so far as the Commission applied by analogy Article 2(9) of the basic regulation for the calculation of the injury margin. The Court’s reasoning begins in paragraph 191, where it indicates, as a preliminary point, that ‘it is clearly apparent from the application that the applicant claims that the Commission should have used as the free circulation price for the resales by Schades of the product concerned the sales prices to independent customers of that company, adjusted to an ex-works level’.

58. The Court’s substantive analysis of the second part of the fifth plea begins in paragraph 196. In paragraph 197, referring to the existing case-law, it observes that the determination of injury involves considering ‘whether there has been significant price undercutting by the dumped imports as compared with the price of a like product’. The Court also states, in paragraph 198, that ‘it is necessary to examine whether the Commission committed a manifest error of assessment in determining the reference point to be used, in the present case, to calculate the prices of the applicants’ goods which were to be compared with prices in the Union industry’.

59. In that regard, the Court finds, in paragraph 200, that ‘although the Commission was entitled to reduce the export price of the product concerned to a CIF [cost, insurance, freight] Union frontier level where it was sold and then converted into small rolls, the construction carried out by the Commission regarding the resales by Schades of the product concerned, and therefore not converted, to independent customers is erroneous’. In paragraphs 201 to 202, the Court explains that, first, ‘the “reference point” relating to Schades’ resales, … is not at the Union frontier level, but at the level of Schades’ independent customers’. Second, although it is true ‘that “most of” the competition took place at the level of the related converters, [the Commission] did not consider that “all” the competition took place at that level. In that regard, it must be concluded that, regarding the direct and indirect sales of the product concerned, competition took place at the level of the independent customers’. The Court concludes from those two findings that ‘the Commission committed an error by deciding to deduct selling, general and administrative costs and a profit margin, for the resales of the product concerned by Schades to independent customers, for the purposes of establishing the export price of that product in the context of the determination of the injury’.

60. In the following paragraph, the Court analyses the effect of that error, stating that ‘Schades’ resales of the product concerned to independent customers represented only a small proportion of the sales used to determine the applicant’s export price in the context of the injury analysis’. However, it notes that, ‘as follows from the examination of the first complaint of the second part of the first plea in law, the resales of the product concerned to independent customers should have represented a greater proportion than that accepted by the Commission’. It adds that ‘there is no evidence making it possible to measure precisely the impact of a modification of the reference point for the resales of the product concerned to independent customers on the level of price undercutting adopted by the Commission, which, in the present case, amounted to 9.4% (recital 67 of the [contested] regulation)’. The Court concludes that the second part of the fifth plea must be upheld.

61. In paragraphs 206 to 213, the Court considers the third part of the fifth plea, based on infringement of Article 3(2), (3) and (6) of the basic regulation and on the undercutting margin for the product concerned. Referring once again to the case-law cited in paragraph 197 and observing that the undercutting margin was found to be 9.4%, the Court rejects ‘the applicant’s arguments developed on the basis of the first part of the fifth plea in law, … for the same reasons as those set out in paragraphs 173 to 177 …’.

62. In paragraph 211, the Court examines the applicant’s arguments developed on the basis of the second part of the first plea, noting that ‘in the context of that part, it has been held that the Commission committed an error in the weighting of sales to related converters for resale in the form of small rolls to independent customers (between 75 and 85%) … Since the Commission used the same weighting to calculate price undercutting, the error found in the second part of the first plea in law also affects that calculation’. The Court also upholds the third part of the fifth plea in so far as ‘it cannot be excluded that that error, together with that found in the context of the second part of the fifth plea in law, affects the Commission’s conclusion relating to the analysis of price undercutting and to the examination of the impact of dumped imports on like products of the Union industry, provided for in Article 3(2) and (3) of the basic regulation’.

63. In paragraph 213 of the judgment under appeal, the Court concludes that it is necessary to annul the contested regulation, in so far as it concerns the applicant.

C. Procedure before the Court of Justice and forms of order sought

1. Procedure before the Court of Justice

64. In accordance with Article 76(2) of the Rules of Procedure, the Court decided to proceed without a hearing.

65. By way of a measure of organisation of procedure of 7 September 2021, the Court put questions to be answered in writing to all parties. The answers to those questions were lodged within the prescribed time limits.

2. Forms of order sought by the parties in the main appeal

66. The Commission lodged the appeal on 11 June 2020 and it was entered in the Court Register on 15 June 2020. The Commission claims that the Court should: – set aside the judgment under appeal, dismiss the application at first instance and order Hansol to pay the costs; or, in the alternative, – refer back the case to the General Court for reconsideration and reserve the costs of the proceedings at first instance and on appeal.

67. The ETPA lodged a response in support of the Commission’s appeal on 19 October 2020 and it was entered in the Court Register on 20 October 2020.

68. Hansol lodged a response on 27 August 2020 and it was entered in the Court Register on 28 August 2020. In that response Hansol claims that the Court should: – dismiss the appeal; – order the Commission to pay the costs of the proceedings at first instance and on appeal; – order the party intervening in support of the appeal to pay the costs of the proceedings on appeal.

3. Forms of order sought by the parties in the cross-appeal

69. The ETPA lodged a cross-appeal on 19 October 2020 and it was entered in the Court Register on 20 October 2020. In the cross-appeal the ETPA claims that the Court should: – set aside the judgment under appeal, dismiss the application at first instance and order the respondent to the appeal to pay the costs; or, in the alternative, – refer back the case to the General Court for reconsideration and reserve the costs of the proceedings at first instance and on appeal.

70. Hansol lodged a response to the cross-appeal on 5 November 2020 and it was entered in the Court Register on the same day. In that response Hansol claims that the Court should: – dismiss the cross-appeal; – order the EPTA to pay the costs.

IV. Legal analysis

A. Preliminary observations

1. The European Union in the multilateral trading system

71. The WTO works to ensure a multilateral rule-based trading system. The European Union, as a regional organisation with its own legal personality, has a particular status within the WTO, as it is a member in its own right, alongside its Member States. As a result of the exclusive competence that Article 3(1)(e) TFEU confers on it in the area of common commercial policy, the European Union has been required to assume the obligations of its Member States under WTO agreements. Among these, the anti-dumping agreement governs the application of anti-dumping measures by WTO members. That agreement sets out certain fundamental rules that must be observed if an anti-dumping measure is to be applied, as well as detailed procedural rules governing the conduct of anti-dumping investigations and the imposition and continuation of such measures. Failure to observe those rules may lead to the WTO dispute settlement mechanism being invoked and to the invalidation of the measure.

72. The legislature adopted the basic regulation mentioned in the introduction to this Opinion, ( 9 ) in accordance with Article 207(2) TFEU, in order to ensure the implementation of the anti-dumping agreement in the internal legal system of the European Union. ( 10 ) It is for the Commission to apply the trade defence instruments provided for in that regulation as against undertakings headquartered in third countries which export their products to the European Union in contravention of the anti-dumping rules, causing injury to the EU industry. In so far as, firstly, the rule of law is one of the cardinal principles of the EU legal system and, secondly, the European Union is determined to comply fully with its obligations vis-à-vis other WTO members, ( 11 ) it appears logical that the treaties provide for the application of those mechanisms by the Commission to be subject to judicial review by the EU Courts, in particular by the General Court at first instance and, in the context of appeal proceedings, by the Court of Justice. In the present case, which comprises a main appeal and a cross-appeal, the Court of Justice is called on to exercise its jurisdiction in that area.

2. Judicial review in the context of the appeal proceedings

73. Before examining the various grounds of appeal, it should be observed that, under the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, appeals are limited to points of law. Indeed, as confirmed by consistent case-law, the General Court has an exclusive jurisdiction, first, to establish the facts and, second, to assess those facts. By contrast, the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts. Therefore, the appraisal of the evidence by the General Court does not constitute a point of law which is subject, as such, to review by the Court of Justice. ( 12 )

74. However, when the General Court has found or assessed the facts, the Court of Justice has jurisdiction under Article 256 TFEU to review the legal characterisation of those facts by the General Court and the legal conclusions which it has drawn from them. Exceptionally, the Court of Justice may review the General Court’s assessment of the facts where an appellant alleges distortion of the evidence by the General Court. ( 13 ) In such a case, the appellant must indicate precisely the evidence alleged to have been distorted and show the errors of appraisal which, in his view, led to such distortion. As confirmed by the case-law, there will be distortion where, without recourse to new evidence, the assessment of the existing evidence is manifestly incorrect. ( 14 )

75. Those preliminary remarks are of particular relevance in the present context, given that the General Court calls into question the assessment of various factual matters and of certain conclusions drawn by the Commission in the administrative procedure which led to the adoption of the regulation at issue. In so far as the Commission and the ETPA challenge the grounds of the judgment under appeal, in order to oppose the annulment of that regulation by the General Court, it should be observed that appeal proceedings cannot be used to compel the Court to carry out its own re-evaluation of the facts. Hence, having regard to the division of competences between the Commission, on the one hand, and the EU Courts, on the other, the examination of the appeal must be limited to a strict analysis of the legal issues raised before the Court of Justice. It is against that background that the grounds of the main appeal, ( 15 ) and then those of the cross-appeal, ( 16 ) must be examined, in the order in which they have been presented.

B. The main appeal

1. The first ground of appeal

(a) Arguments of the parties

76. By its first ground of appeal, the Commission asserts that the General Court distorted the evidence by stating at paragraph 85 of the judgment under appeal that the Commission had obtained evidence during the administrative procedure showing that Schades Nordic resold the product concerned to the EU independent customers during the investigation period in spite of the fact that Shades Nordic did not reply to Annex I to the questionnaire. Alternatively, the Commission contends that the Court committed an error of law in obliging the Commission to base its findings on unverified data concerning Schades Nordic (which however had not been provided as such by Schades Nordic). The Commission considers that the Court infringed the rules concerning the range of evidence on which the Commission can base its findings in the context of anti-dumping investigations carried out pursuant to the basic regulation, and particularly Article 6(8) of that regulation.

77. In response to the first ground of appeal, Hansol states that the Court rightly noted that evidence had been produced in the course of the administrative procedure. In support of that position, Hansol refers to various previous exchanges with the Commission, more specifically the exemption request submitted on 19 February 2016 and the hearing chaired by the Hearing Officer on 10 March 2016, through which the Commission had obtained the information indicating that Schades Nordic had resold a certain quantity of the product concerned to EU independent customers during the investigation period. Accordingly Hansol argues that the Court did not distort the evidence in question. Furthermore, contrary to what the Commission states, the Court did not oblige the Commission to base its findings on unverified data. Hansol contends that the information had been verified by the Commission and is not disputed.

(b) Assessment

78. I should first point out that the legal question at the heart of the first ground of appeal relates, in essence, to the Commission’s obligation to take account of information obtained in the course of an investigation leading to the adoption of anti-dumping measures. The Commission states that it received the information at issue in a manner which is not provided for by the legal framework governing investigations – which, it contends, prevented it from taking that information into account. That point of view is challenged by Hansol, which submits that the Commission should have incorporated the information at issue into its analysis, given that it had become aware of it during the administrative procedure.

79. It must be observed that the General Court begins from the premiss that the Commission should have taken the information at issue into account, particularly given the importance of that information to the analysis to be carried out in accordance with the basic regulation. In paragraph 85 of the judgment under appeal, as has already been noted, the Court observed that at least one other related converter, namely Schades Nordic, had resold a certain volume of the product concerned purchased from the applicant. In paragraph 86 of the judgment under appeal, the Court held that, in the light of the information that had been obtained, the Commission should have reflected that situation in the sales of the product concerned to the other related converters. The Court concluded that, by failing to take that factor into consideration, the Commission had given too much weight to sales to the related converters for conversion into small rolls, thereby increasing the actual dumping carried out by the applicant. In paragraph 87 of the judgment under appeal, the Court found that there had been an infringement of Article 2(11) of the basic regulation, as the calculations made by the Commission did not reflect the full extent of the dumping practised by the applicant. As is apparent from paragraph 105 of the judgment under appeal, that error, which was connected with the weighting used by the Commission, also affected the establishment of the definitive fixed anti-dumping duty of EUR 104.46 per tonne, net, which the Court thus found to exceed the dumping actually practised by the applicant in infringement of the second subparagraph of Article 9(4) of the basic regulation.

80. In that regard, I should first point out that, as the Court noted in paragraph 85 of the judgment under appeal, the Commission does not dispute either the content of that information or the fact that it was received. In its appeal, the Commission does not in any way rectify the facts on that point. Consequently, there is nothing in the file to indicate that the information in question was inaccurate information capable of vitiating the Court’s assessment of the facts.

81. Rather, the Commission merely explains in its pleadings that it is contrary to the basic legal framework, as regards anti-dumping investigations, to oblige it to base its findings on data which has been presented by an interested party or which has not been subject to the verification process contemplated by the basic regulation and the WTO rules. According to the Commission, the Court substituted itself for the authority responsible for the anti-dumping investigation in so far as it incorporated the information at issue into its reasoning.

82. It appears to me not only that this stance attaches excessive importance to matters of form, but also that it is difficult to reconcile with the obligations which are incumbent on the Commission in any anti-dumping investigation. To judge on the basis of Article 6 of the basic regulation, this phase of the administrative procedure is characterised by a concern for efficiency and speed in obtaining information. ( 17 ) Consequently, the fact of not having taken into account the evidence necessary to make a legally compliant decision on the adoption of an anti-dumping measure can only be justified by overriding reasons. I will set out below the main reasons why I consider that the Court was right to hold that the Commission should have taken the information received during the administrative procedure into account.

83. First, it is common ground that there was communication between the Commission and Hansol on several occasions, with the goal of producing evidence indicating that Schades Nordic had resold a certain quantity of the product concerned to EU independent customers during the investigation period. ( 18 ) Hansol refers to the email of 19 February 2016, in which it asked that the Commission entirely exempt three of the four related converters from the obligation to respond to the questionnaire. It also refers to the hearing, chaired by the Hearing Officer, of 10 March 2016, at which the information on the resales of the product concerned by Schades Nordic had been presented and explained more fully. Following that hearing, and after a visit to the premises of Schades in the United Kingdom on 16 and 17 March 2016, the Commission confirmed, in an email of 21 March 2016, its decision to exempt Schades Nordic and two other undertakings from the obligation to respond to Annex I to the questionnaire. In the same email, the Commission had added that it reserved the right also to request additional information from Schades Nordic and the other undertakings during the course of the proceeding.

84. It follows that the Commission was fully aware of the facts which formed the basis of the Court’s reasoning. The Commission submits nevertheless that it had not had the opportunity to verify that information. In my view, however, it does not give any conclusive explanation as to why it was not able to perform its obligation to carry out such verification as soon as possible. While it is true that it had decided, at Hansol’s request, to exempt Schades Nordic from the obligation to respond to the questionnaire, it had nonetheless expressly reserved the right to request further information from that undertaking. ( 19 ) Accordingly, and contrary to what the Commission has repeatedly asserted, the exemption decision cannot be regarded as an absolute legal obstacle to obtaining information that was essential to the determination of dumping.

85. In that context, it should be noted that the Commission appears to criticise Hansol for persisting in its request for that exemption, ( 20 ) when it was ultimately the Commission itself that took the final decision. In so far as the Commission appears to consider that that exemption prevented it from carrying out the necessary verifications, it should be observed that it is the Commission itself which must be held responsible for that situation. In addition, it is difficult to understand why the Commission would have agreed to grant such an exemption at the risk of not obtaining all the necessary information from the undertakings at issue. The argument advanced by the Commission appears to me to serve rather as a pretext to justify the omission to conduct the investigation with the necessary diligence and to take account of the information provided by Hansol in examining whether dumping had taken place.

86. The WTO rules to which the Commission refers in its pleadings do not appear to me to be capable of supplying an adequate legal basis for its position. It is clearly stated in the report of the WTO panel in the case of China – Anti-Dumping and Countervailing Duty Measures on Broiler Products from the United States ( 21 ) that although the term ‘evidence’ is not defined for the purposes of anti-dumping proceedings in the anti-dumping agreement, it encompasses ‘at a minimum … information provided to an investigating authority by an interested party, whether or not positive, accurate or adequate’. ( 22 ) In that sense, Hansol produced the evidence indicating that Schades Nordic had resold the product concerned.

87. In so far as the Commission claims that the evidence provided by Hansol does not meet its requirements because it was not provided in a satisfactory manner, or in other words in response to a questionnaire sent to the undertakings, pursuant to Article 6 of the basic regulation, it suffices to observe that the report of the WTO panel, referred to in the preceding paragraph, expressly indicates that ‘nothing in the anti-dumping agreement, or the WTO agreement as a whole, suggests that information loses its character as “evidence” by virtue of failing to meet certain criteria’. The report states that ‘whether the evidence meets these criteria is a separate matter for the investigating authority to consider’. ( 23 ) It is consequently possible to conclude from the foregoing that the Commission cannot deny being in possession of the evidence supplied by Hansol in the administrative procedure.

88. The Commission’s argument that information obtained in a request for non-disclosure of data does not form part of the investigation file which is accessible to the interested parties pursuant to Article 6(7) of the basic regulation is not persuasive. The Commission does not state to what extent the rights of the interested parties could have been infringed. In any event, as Hansol states, the report produced by the Hearing Officer on the hearing of 10 March 2016 is an official document which is added to the investigation file accessible to the parties and on which the Commission relied in deciding to impose measures. Furthermore, Hansol’s comments on the final disclosure document were also placed in the investigation file accessible to the parties. Accordingly, the Commission cannot legitimately rely on a claimed interest on protecting the rights of the interested parties as a basis for disregarding the evidence provided by Hansol.

89. Although the Commission does, in principle, have the right to express reservations as to the consistency and validity of the information obtained, I do not see how that could affect this conclusion. The Commission has merely stated that it did not have the opportunity to verify the information obtained, without taking a position on the content of the information itself. There is nothing to indicate that the Commission had any intention of carrying out such a verification, despite the fact that the anti-dumping agreement, as interpreted by the EU Courts, ( 24 ) and as the Commission itself acknowledges in its written reply to the questions posed by the Court, requires it to satisfy itself, during the course of the investigation, as to the accuracy of the information supplied by the interested parties. On the contrary, the facts of the present case indicate that in adopting the regulation at issue it disregarded an important phase of the procedure. Given that entirely ignoring the fact that essential evidence had actually been obtained in the course of the investigation would ultimately amount to ‘rewarding’ a serious administrative omission, I have reservations about the Commission’s argument that the evidence did not meet its requirements. ( 25 ) If it were accepted that the Commission can disregard available relevant information when conducting an investigation, without this being subject to judicial review, there would be a risk of that investigation being arbitrary, inefficient and inaccurate. Such a development does not appear to me to be at all desirable.

90. Article 18(1) of the basic regulation provides that in cases in which any interested party refuses access to, or otherwise does not provide, necessary information within the time limits provided in that regulation, or significantly impedes the investigation, provisional or final findings, affirmative or negative, may be made on the basis of the facts available. The conditions of application of that provision are not met in the present case. First, there is no indication of any lack of cooperation between the Commission and Hansol, and second, as I have already stated, the information at issue was in the possession of the Commission, precisely because there had been such cooperation in the course of the investigation.

91. Accordingly, the Court was right to reproach the Commission for not acting with the requisite diligence. It appears to me that, far from seeking to substitute itself for the Commission, the Court was in fact seeking to draw attention to an essential item of information which ought to have been taken into account by the Commission, failing which there would be a risk of distortion of the facts on which the findings made in the regulation at issue were based. The Court thus exercised its powers perfectly correctly, in identifying an error made by the Commission in applying the basic regulation. It must therefore be concluded that, in the present case, there was no distortion of the facts or erroneous interpretation of the applicable law on the part of the Court.

92. The same applies to the Court’s examination of the first part of the second plea in law, alleging infringement of Article 9.3 of the anti-dumping agreement and the second subparagraph of Article 9(4) of the basic regulation. In paragraph 105 of the judgment under appeal, the Court held that the calculations made by the Commission did not reflect the full degree of dumping practised by Hansol, for the reasons given in paragraphs 83 to 87 of that judgment, including the failure to take account of the fact that part of the sales of the product concerned to Schades had been resold without conversion to independent customers. The Court held that by failing to take that factor into consideration, the Commission had given too much weight to sales to the related converters for conversion into small rolls, thereby increasing the actual dumping carried out by Hansol. In so far as the conclusions in paragraph 85 of the judgment under appeal affect the Court’s reasoning as set out in paragraph 105 of that judgment, I consider that the ground of appeal raised by the Commission in relation to that paragraph must also be rejected.

93. In the light of those considerations, it must be concluded that the Court did not make any error of law in its assessment of the first complaint made under the second part of the first plea in law at first instance and the first part of the second plea in law at first instance. Consequently, I suggest that the first ground of appeal should be rejected as manifestly unfounded.

2. The second ground of appeal

(a) Arguments of the parties

94. Under its second ground of appeal, the Commission argues that the General Court erred in law by stating that the normal value of the like product could be established pursuant to the second subparagraph of Article 2(1) of the basic regulation, or in other words on the basis of prices of other sellers or producers in cases where the exporter concerned (namely Artone) does not produce or does not sell the like product on its domestic market. The Commission states that it was entitled to construct the normal value of the two product types not sold by Artone on the Korean market on the basis of Article 2(3) of the basic regulation.

95. In support of its position, the Commission advances a series of arguments, based in particular on the interpretation of the second subparagraph of Article 2(1) of the basic regulation, as well as Article 2.2 of the WTO anti-dumping agreement, which suggests that the Commission is not under any obligation to give preference to any specific method in establishing the normal value, which is an essential step in making a determination of dumping. Hence, it submits, the Commission chose the method envisaged by Article 2(3) of the basic regulation, which provides for the normal value to be constructed on the basis of the cost of production. The Commission contends that the Court opted for a strict interpretation which has no foundation in the basic regulation. Lastly, the Commission submits that the General Court’s reference to the judgment in Council v Alumina ( 26 ) is in vain.

96. The EPTA supports the Commission’s second ground of appeal, advancing essentially the same arguments based on the interpretation of the relevant provisions of the basic regulation and of the WTO anti-dumping agreement.

97. Hansol disputes that the Court made an error of law. It contends that the Commission’s argument is unfounded and contravenes its own practice. More specifically, it doubts that the Commission’s proposed interpretation can be correct, on the basis that there is a hierarchical order in the methods for the determination of the normal value in Article 2 of the basic regulation and the normal value should primarily be based on domestic prices. It also submits that the WTO rules are irrelevant to the interpretation of provisions of the basic regulation which – like those at issue in the present case – differ from the provisions of the anti-dumping agreement. Contrary to the view expressed by the Commission, Hansol considers that the Court’s reliance on the judgment in Council v Alumina ( 27 ) is relevant to the examination of the fourth plea in law at first instance, which forms the subject matter of the second ground of appeal.

(b) Assessment

98. The second ground of appeal relates, in essence, to the issue of whether the General Court erred in law in interpreting Article 2(1) and (3) of the basic regulation, in paragraphs 152 to 157 of the judgment under appeal, and in determining that the Commission had infringed Article 2(1) of that regulation in the context of the calculation the normal value of Artone, in paragraph 158 of the judgment under appeal

99. In that regard, it must be observed that, in setting out its reasoning on that point, the Court began by referring, in paragraph 148 of the judgment under appeal, to the case-law of the Court according to which ‘the determination of the normal value of a product constitutes one of the essential steps required to prove the existence of [any] dumping’. ( 28 )

100. The Court then examined the provisions of Article 2 of the basic regulation, concluding that there is a certain hierarchical order between those provisions, and more specifically between Article 2(1) and Article 2(3), which must be taken into account where the need to determine the normal value of a product arises. To support that view, the Court referred to the judgment in Council v Alumina, in which the Court of Justice held that ‘it is apparent [both] from the wording and the scheme of [the first subparagraph of Article 2(1) of the basic regulation] that it is the price actually paid or payable in the ordinary course of trade which must, as a matter of priority, be taken into consideration in principle to establish the normal value’. ( 29 )

101. In paragraph 150 of the judgment under appeal, the Court referred once again to the judgment in Council v Alumina, stating that, pursuant to the first subparagraph of Article 2(3), ‘there may be derogations from the principle of the use of prices paid or payable, in the ordinary course of trade, by independent customers in the exporting country, only when there are no or insufficient sales of the like product in the ordinary course of trade, or where … such sales do not permit a proper comparison’. ( 30 ) The Court concluded by observing, again with reference to the judgment in Council v Alumina, that ‘those derogations from the method of establishing the normal value on the basis of actual prices are exhaustive in nature’. ( 31 )

102. That reading of the reasoning of the judgment under appeal demonstrates that the Court simply referred to the relevant case-law of the Court of Justice in order to support its view that there is a hierarchical relationship between the various provisions of Article 2 of the basic regulation. It held, without making any error of law, that there is a principle of priority as between the different methods of calculation, which, exceptionally, may be derogated from where the conditions are met. ( 32 ) It is clear that it cannot have infringed EU law in that regard, as the Court of Justice has arrived at a similar conclusion in its own case-law. Accordingly, it seems to me that the Court was right to criticise the Commission for resorting immediately to Article 2(3) of the basic regulation, without first establishing whether it was possible to apply Article 2(1) of that regulation to the present case.

103. In principle, the examination of this ground of appeal could be limited to a reference to that case-law, which seems to me to be perfectly relevant in the present context of the appeal proceedings. Nonetheless, for the sake of completeness and to avoid any doubt as to the validity of that interpretation of Article 2 of the basic regulation, which was advocated by the General Court in the judgment under appeal, I will briefly consider the other arguments presented by the Commission in support of its position.

104. The Commission and the EPTA take the view that the interpretation adopted by the Court ignores the fact that the provision at issue, namely the second subparagraph of Article 2(1) of the basic regulation, is expressed in the ‘permissive’ form, not in the ‘prescriptive’ form. They contend that this interpretation is supported by a comparative analysis of the different language versions. The Commission and the EPTA thus appear to be suggesting that the Commission has the option of using the method of calculation which it considers most appropriate, without being obliged to take account of the principle of priority governing the different methods of calculation provided for by Article 2 of the basic regulation.

105. It seems to me that that reading is incorrect, in that it conflates two fundamental aspects of EU administrative law which are entirely separate – namely the powers attributed by the legislature to the Commission so that it can perform certain administrative tasks, on the one hand, and the discretion that may be conferred on the Commission in specific circumstances, on the other. Contrary to what is stated by the Commission, Article 2 of the basic regulation must be understood as belonging to the first of those categories and not the second. This follows, in the first place, from the principle of attribution of powers, enshrined in Article 13(2) TEU, according to which ‘each institution shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them’ (emphasis added). It should be noted in this context that Article 2 is not fundamentally different from other similar provisions of the basic regulation which also confer decision-making powers on the Commission, provided that certain conditions laid down by the legislature are met. Hence, it is possible to conclude both from the wording and from the general scheme of Article 2 that the objective of the EU legislature was to specify the manner in which the Commission is required, in each case, to determine the normal value of a product, by establishing to that end an order of priority between the different methods commonly recognised in the sphere of anti-dumping.

106. The wording of the provisions at issue, and in particular the use of the verb ‘may’ in certain language versions ( 33 ) is liable to confuse, given that it can be understood, in principle, in both senses, at least if we ignore a principle as important in EU law as that referred to in the preceding paragraph. Nonetheless, as the Commission itself acknowledges in its pleadings, the French version of the second subparagraph of Article 2(1) of the basic regulation (‘la valeur normale est établie’; emphasis added) makes it impossible to read it with absolute certainty as acknowledging a discretionary power, ( 34 ) while there is significant ambiguity as to the interpretation of the other language versions. Accordingly, nothing decisive, as regards the interpretation supported by the Commission, emerges from the comparative analysis of the different language versions.

107. As regards the argument based on the need for an interpretation which conforms to WTO rules, referred to above, it should first be pointed out that, under settled case-law of the Court of Justice, EU legislation must, so far as possible, be interpreted in a manner that is consistent with international law, in particular where its provisions are intended specifically to give effect to an international agreement concluded by the European Union. ( 35 ) Nonetheless, it is also apparent from settled case-law that, having regard to their nature and structure, the WTO agreements are not in principle among the rules in the light of which the EU Courts are to review the legality of measures adopted by the institutions of the European Union. ( 36 ) It is only where the EU has intended to implement a particular obligation assumed under the WTO or where the EU measure refers expressly to specific provisions of the WTO agreements that the Courts of the EU must review the legality of the EU measure in question in the light of the WTO rules. The principles referred to above also apply, in principle, to the obligation to interpret the basic regulation in the light of the WTO anti-dumping agreement, ( 37 ) bearing in mind that it was precisely in order to comply with its international obligations under the WTO that the European Union adopted that regulation. ( 38 )

108. Analysis of the provisions of the basic regulation reveals that the wording of Article 2(1) of the basic regulation differs from that of Article 2.2 of the WTO anti-dumping agreement. While Article 2.2 of the anti-dumping agreement mirrors the terms of Article 2(3) of the basic regulation, the anti-dumping agreement does not contain a provision similar to the second subparagraph of Article 2(1) of the basic regulation. In view of the obviously different wording used in the basic regulation and in the anti-dumping agreement respectively, WTO law cannot be relied upon to depart from the clear wording of Article 2(1) of the basic regulation. ( 39 ) Consequently, the argument advanced by the Commission on the basis of the claimed relevance of the anti-dumping agreement must be rejected, at least as regards the interpretation of Article 2(1) and its relationship with Article 2(3). It follows that the Commission cannot rely on the provisions of the anti-dumping agreement in order to give preference to the method of calculation provided for in Article 2(3) of the basic regulation.

109. Furthermore, the Commission submits that the fact that the anti-dumping duty is individual in nature, except when the basic regulation provides otherwise, for example in the case of sampling, shows that when establishing the normal value and the dumping margin in general, preference should be given to the exporter’s own data, rather than the data of other producers.

110. In that regard, it should be noted that the Commission is merely confirming what is laid down in Article 2(1) of the basic regulation, namely that, for the purposes of establishing the normal value, preference must be given to the domestic prices of the exporting producer rather than the domestic prices of other sellers or producers. That having been said, it is clear that that argument cannot legitimately be used to justify giving preference to the method provided for by Article 2(3) of the basic regulation, under which the normal value is constructed. Such an interpretation would be contrary to what the Court decided in the case of Council v Alumina, namely that determination of the normal value on the basis of prices is the rule, whereas construction of the normal value is the exception, as I have explained above, ( 40 ) in describing the reasoning followed by the General Court in paragraphs 148 to 152 of the judgment under appeal. Accordingly, that argument must be rejected as unfounded.

111. The Commission takes the view that the General Court did not take account of the fact that the situations envisaged by the second subparagraph of Article 2(1) and Article 2(3) of the basic regulation (namely ‘no sale’ and ‘no sales in the ordinary course of trade’) cannot be separated and in fact partially overlap. It submits that where there are no sales for the purposes of the second subparagraph of Article 2(1) of the basic regulation, that is, by definition, a situation in which there are ‘no … sales … in the ordinary course of trade’ within the meaning of the first subparagraph of Article 2(3) of the basic regulation. The Commission adds that the real separation between the two provisions is when the exporting producer ‘does not produce … the like product’ in its country of establishment: in that exceptional situation, there is materially no cost of production on which the investigating authority can rely in order to construct the normal value, and the only possible option would be to use other producers’ domestic sale prices.

112. This argument, based on an imprecise reading of the provisions referred to above and intended, quite obviously, to cast doubt on their respective scopes, is unpersuasive in so far as it is at odds with the conclusions reached by the Court of Justice in the judgment of 1 October 2014, Council v Alumina (C‑393/13 P, EU:C:2014:2245). As the Court clearly explained in that judgment, the second subparagraph of Article 2(1) applies to situations in which there are sales (by other sellers or producers) of the like product in the ordinary course of trade in the exporting country, whereas the first subparagraph of Article 2(3) applies to situations in which there are no or insufficient sales of the like product in the ordinary course of trade in the exporting country. Contrary to what the Commission states, there is therefore no ambiguity as regards the respective scopes of those provisions. Accordingly, that argument must also be rejected as unfounded.

113. Lastly, the Commission disputes the relevance of the judgment in Council v Alumina, cited by the Court in the judgment under appeal. The Commission argues that that case related to the definition of the concept of ‘sales … in the ordinary course of trade’ within the meaning of Article 2(3) of the basic regulation. It submits that the Court, in its judgment in that case, did not address an issue which was not before it, namely the interpretation of the second subparagraph of Article 2(1) of the basic regulation, or the claim that there is an absolute separation between the situations of absence of sales referred to in the second subparagraph of Article 2(1), and those referred to in the first subparagraph of Article 2(3) of the basic regulation.

114. This argument, based as it is on a mistaken reading of the judgment in Council v Alumina, prompts me to make a number of comments. To summarise, the Court held in that judgment that ‘it is the price actually paid or payable in the ordinary course of trade’ ( 41 ) which must, as a matter of priority, be taken into consideration in principle to establish the normal value, and that the ‘derogations from the method of establishing the normal value on the basis of actual prices are exhaustive in nature and relate to the characteristics of the sales effected rather than to the price of the product’. ( 42 ) Given that, as is correctly stated in paragraph 149 of the judgment under appeal, the second subparagraph of Article 2(1) of the basic regulation ‘permits, by the use of the prices of other sellers or producers, a determination of the normal value on the basis of prices paid or payable, in the ordinary course of trade, by independent customers in the exporting country’, the General Court complied with the rule established by the Court of Justice in the case of Council v Alumina, namely that it is the price actually paid or payable in the ordinary course of trade which must, as a matter of priority, be taken into consideration to establish the normal value. It follows that that argument of the Commission must be regarded as ineffective.

115. For the sake of completeness, I would add that the administrative practice of the EU in anti-dumping matters does not reflect the interpretation supported by the Commission in the present case. Hansol has cited numerous examples demonstrating that the normal value is generally based on domestic prices, in accordance with Article 2(1) of the basic regulation. It is only in the absence of representative domestic sales by other producers, or where such sales prices are not suitable, that the normal value is constructed in accordance with Article 2(3) of the basic regulation. ( 43 ) In those circumstances, it is remarkable that the Commission has sought to depart from that administrative practice in the present case, without giving any objective justification.

116. In conclusion, having regard to the foregoing, I do not consider that the General Court made any error of law in its assessment of the fourth plea in law at first instance. Accordingly, I suggest that the second ground of appeal should be rejected as manifestly unfounded.

3. The third ground of appeal

(a) Arguments of the parties

117. Under its third ground of appeal, the Commission argues that the General Court misinterpreted the rules of Article 3 of the basic regulation when defining the undercutting margin in case of exports to the Union through related entities. This ground of appeal relates to the findings concerning the injury margin made by the Court in the course of examining the second part of the fifth plea in law and the third part of the fifth plea in law at first instance.

118. The Commission advances a series of arguments in support of its position. First, it notes the wide discretion it enjoys in the context of complex economic situations. In the absence of any definition of the concept of price undercutting, the Commission considers that the use of an export price constructed in accordance with Article 2(9) of the basic regulation in the context of the undercutting calculations is not misplaced or inappropriate. Second, the Commission refers to Article 3(3) of the basic regulation in support of its position, submitting that pursuant to that article, the existence of significant price undercutting has to be examined at the level of ‘the dumped imports’, and thus not at the level of their subsequent resale price on the EU market Third, the Commission considers that it would be absurd to use a constructed export price to determine the existence and amount of dumping and then use another export price to examine the price effects caused by the very imports already shown to have been dumped in the injury context. It is thus only at that level (that of the actual or so-established CIF ( 44 ) export price at the EU border) that dumping can be observed and the associated price effects can be caused, regardless of whether the exporting producer sells directly or through related entities at a later time within the European Union. Fourth, the Commission notes that the use of a constructed export price in accordance with Article 2(9) of the basic regulation in cases where the exporting producer (like Hansol) sells through related entities also ensures coherence and non-discrimination.

119. The EPTA supports the Commission’s third ground of appeal, advancing, in essence, the same arguments, based on the discretion which the Commission is said to enjoy and the interpretation of the abovementioned provisions of the basic regulation referred to above.

120. Hansol disputes this line of argument, challenging the lawfulness of the Commission’s application by analogy of Article 2(9) of the basic regulation in the calculation of the undercutting margin, which is an aspect of the determination of injury. It also disputes the Commission’s proposed interpretation of Article 3(3) of the basic regulation, submitting that the requirement that the existence of significant price undercutting has to be examined at the level of the dumped imports is nowhere to be found in that article. Furthermore, the examination of the existence of significant price undercutting requires that the Commission compares prices that are comparable. However, the Commission’s approach of applying Article 2(9) of the basic regulation for the calculation of the undercutting margin is tantamount to comparing prices which are not comparable, as they do not include the same pricing components. Hansol sets out a series of cases, from which it is apparent that the Commission normally determines whether there has been price undercutting by reference to the sale price to the first independent customer. Lastly, Hansol submits that the Commission’s approach infringes the principle of equal treatment as regards the calculation of the undercutting margin, in that it treats different situations – those of exporting producers with related sales entities in the European Union and exporting producers selling directly to EU independent customers – in the same way.

(b) Assessment

121. The specific question of law raised by the third ground of appeal, to which I now turn, relates in essence to the determination of the ‘point of reference’ to be used in calculating the undercutting margin in cases of exports of the product under consideration to the European Union through related parties. The Commission argues that the General Court misinterpreted the rules of Article 3 of the basic regulation when defining the undercutting margin in the case of exports to the European Union through related entities.

122. For the sake of clarity, it is worth briefly summarising the grounds of the judgment under appeal which are contested by the Commission, before examining the question of law which is raised. The Court stated that the Commission had made an error of law in applying Article 2(9) of the basic regulation, by analogy, to resales of jumbo rolls by related companies. It held that the Commission ought to have calculated the undercutting margin on the basis of the sales prices agreed between Schades and its independent customers.

123. To support its reasoning, the Court stated, in paragraph 199 of the judgment under appeal, that it was the prices negotiated between an undertaking and the customers and not prices at an intermediate stage which could have determined the decision of those customers to acquire that undertaking’s product and not that of the Union industry. It explained, in paragraph 201 of the judgment under appeal, that as the product concerned was in competition with the like product of the Union industry and inflicted injury on that industry, the ‘reference point’ relating to Schades’ resales, was not at the Union frontier level, but at the level of Schades’ independent customers. That interpretation supports Hansol’s analysis, according to which the Commission ought to have used the sales prices actually invoiced, deducting only the costs incurred in the sale.

124. I should point out, at the outset, that undercutting is commonly defined as the difference between the export price charged by exporting producers and the sales price of the EU industry. ( 45 ) This concept is not defined, however – still less regulated – by the basic regulation or the WTO anti-dumping agreement. Consequently, it is necessary to develop a practicable and sufficiently precise method of making a reliable calculation of the undercutting margin, which also requires that the ‘point of reference’ can be determined in the case of resales of the relevant product through connected parties. I consider that the method suggested by the General Court meets those requirements, as I will explain below.

125. In my view, the Court was correct to observe, in paragraph 197 of the judgment under appeal that, under the rule laid down in Article 1(1) of the basic regulation, it is not sufficient that the imported goods are dumped, as it is also necessary that their release for free circulation should cause injury. This observation is crucial to the Court’s reasoning. The Court correctly stated that an objective examination of the effect of the imports on the price of like products on the EU market was necessary in order to make a determination of injury. Hence, it did not make any error of law in identifying, in paragraph 201 of the judgment under appeal, first, the product which was in competition with the like product of the Union industry and was causing injury to that industry and, second, the level of the distribution chain at which that effect manifested itself, namely the level of the independent customers (not the level of the EU border).

126. The arguments advanced by the Commission and the ETPA in support of the third ground of appeal do not invalidate the conclusions reached by the Court.

127. The fact that the Commission enjoys a certain amount of latitude in trade defence investigations does not in any way exempt it from the obligation to comply with the provisions of the basic regulation. With that in mind, I should point out that there is nothing in that regulation to indicate that Article 2(9) can be applied by analogy to the calculation of the undercutting margin, which is an aspect of the determination of injury. Furthermore, the use of analogies in legal interpretation is generally subject to certain conditions, namely that it is necessary to fill a legal lacuna by applying a legal standard to a situation which is different, but which resembles the situation not envisaged at the level of the ‘ratio’ or ‘essential nature’. Clearly, this only applies where the legislature has not formally indicated that it should not. ( 46 ) It must be observed however that the Commission has not explained whether those conditions were met in the present case, and if so to what extent. This lack of a statement of reasons for the use of an analogy in applying the basic regulation casts doubt on the lawfulness of the Commission’s approach, particularly in the light of the principle of attribution of powers already referred to in this Opinion ( 47 ) and of the need to ensure an effective judicial remedy. ( 48 ) In that context, it should be noted that the duty to give reasons for a decision causing prejudice has two purposes: to allow interested parties to know the justification for the measure so as to enable them to protect their rights, and to enable the Courts of the EU to exercise their power to review the legality of the decision. ( 49 ) It therefore seems to me that the Court was right not to confirm that that approach was lawful.

128. Contrary to what the Commission states in its pleadings, Article 3(3) of the basic regulation does not provide that the existence of significant price undercutting has to be examined ‘at the level of “the dumped imports”’. Nothing in that provision requires the existence of significant price undercutting to be verified at the level of the dumped imports.

129. Furthermore, as Hansol rightly points out, the examination of the existence of significant price undercutting requires that the Commission compares prices ( 50 ) that are comparable. ( 51 ) This implies that the prices are compared at the same level of trade. ( 52 ) That level of trade must be defined by reference to the type of customer, so that the transactions being compared include all price components of a sale to the same type of customer, such as a wholesaler, retailer or end-user. With that in mind it must be observed that, as Hansol points out, by making a comparison between, on the one hand, a price between Hansol and its related entity which had been artificially constructed pursuant to Article 2(9) and, on the other, the prices charged by EU producers to their first independent customers, the Commission did not compare prices at the same level of trade, as the Hansol prices are at a higher level in the sales chain.

130. That is all the more surprising for the fact that the Commission itself appears to begin from the premiss that the comparison of prices should be made ‘at the level where competition in the EU takes place’ (emphasis added), as is expressly apparent from recital 122 of the regulation at issue. In that context, reference should be made to the judgment in Kazchrome, ( 53 ) which has become final, in which the General Court stated that competition takes place at the level of the prices ‘which could have led customers to opt for the applicants’ goods instead of those of the [EU] industry’. ( 54 ) That is necessarily where the related sales entity of an exporting producer established in the European Union sells to its end customer, and not at an intermediate stage. ( 55 ) It should be pointed out in that context that that approach has been applied more recently in the judgment in Jindal Saw, ( 56 ) and must therefore be regarded as sufficiently established in the case-law.

131. In that regard, I should point out that this is precisely what the General Court stated in paragraph 202 of the judgment under appeal. The Court found, without making any error of law, that ‘regarding the direct and indirect sales of the product concerned, competition took place at the level of the independent customers’ (emphasis added). Thus, the Court ultimately accepted, in essence, the line of argument advanced by Hansol at first instance, according to which, as regards the sales of the product concerned made through Schades Ltd, competition took place at the level of the ex-factory price charged by Schades Ltd. The final price should therefore be the ex-factory price charged by Schades Ltd to its EU unrelated customers for the product concerned. In conclusion, it must be held that the final price could not be a theoretical ‘free circulation price’ constructed by the Commission.

132. In that context, it should be noted that the European Union’s administrative practice in the sphere of dumping appears to indicate that it also uses ‘the prices to the first independent customer at the level of the selling entities’ as the ‘reference point’ to determine whether there is price undercutting ( 57 ) (emphasis added). Consequently, it is remarkable that the Commission has sought to depart from that administrative practice in the present case, without providing any objective justification.

133. It follows that the Commission’s methodology of applying Article 2(9) of the basic regulation in the calculation of the undercutting margin is tantamount to comparing prices which are not comparable as they do not include the same pricing components.

134. The argument that the method used by the Commission ensures consistency and non-discrimination is also unpersuasive. It should be recalled that, according to settled case-law, the general principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. ( 58 ) First, it seems to me that the Commission has not provided any evidence in support of its argument. Furthermore, it appears that the method adopted by the Commission treats different situations in the same way in the calculation of the undercutting margin, namely the situations of exporting producers which have established related sales entities within the European Union and of producing exporters selling directly to EU independent customers. Consequently, in so far as there is no objective justification, the Commission’s method is liable to infringe the principle of equal treatment.

135. It follows that the General Court did not make any error of law in holding that the Commission could not apply Article 2(9) of the basic regulation by analogy when calculating the price undercutting margin.

136. In the light of the preceding considerations, I suggest that the third ground of appeal should also be rejected, in so far as it relates to paragraphs 196 to 205 of the judgment under appeal, which form part of the examination of the second part of the fifth plea in law at first instance. As the subject matter is related, the same applies to paragraphs 208 to 213 of the judgment under appeal, which form part of the examination of the third part of the fifth plea at first instance.

4. Conclusions on the main appeal

137. It follows from the foregoing that the Commission’s appeal must be dismissed in its entirety.

C. The cross-appeal

138. In its cross-appeal, the ETPA submits that, in addition to the grounds raised by the Commission in its appeal, the General Court’s findings are affected by additional errors of law.

1. The first ground of appeal

(a) Arguments of the parties

139. By its first ground of appeal, the ETPA contends that the General Court’s findings in paragraphs 86 and 87 of the judgment under appeal are inconsistent with Article 2(11) of the basic regulation. More concretely, the ETPA submits, in essence, that Article 2(11) of the basic regulation does not lay down any requirements or provide any guidance on how to calculate a weighted average, and thus does not lay down an obligation to calculate the sales volumes of the three exempted converters on the basis of Schades’ sales volumes. In the alternative, the ETPA submits that Article 2(11) of the basic regulation does not require the Commission to apply the method used for the construction of the export price to the calculation of the normal value. In support of its submissions, the ETPA refers to the WTO rules.

140. Hansol submits that these arguments are unfounded and points out that the Court expressly indicated how the Commission had infringed Article 2(11) of the basic regulation, namely by failing to have due regard to the objective pursued by that provision, which is to ensure that the method used reflects the full degree of the dumping practised. Hansol relies on the case-law of the Court of Justice, which, it submits, has acknowledged that objective in interpreting Article 2(11) of the basic regulation. It contends that the General Court merely applied that case-law in the judgment under appeal.

(b) Assessment

141. As a preliminary point, it should be observed that, contrary to what is stated by the ETPA, principles have been developed in the case-law of the Court of Justice which govern the application of Article 2(11) of the basic regulation. As I will explain below, those principles were correctly applied by the General Court in the judgment under appeal. I should briefly recapitulate the grounds on which the Court concluded, in paragraph 87 of the judgment under appeal, that the Commission’s assessment did not meet the requirements established by the case-law, and therefore that the Commission had infringed the abovementioned provision.

142. The Court held, in paragraphs 74 and 75 of the judgment under appeal, that Article 2(11) of the basic regulation ‘lays down two methods for comparing the normal value and the export price: the so-called “symmetrical” method based either on the comparison of a weighted average normal value with the weighted average of prices of all export transactions to the European Union or on a transaction-to-transaction comparison, and the so-called “asymmetrical” method based on the comparison of a weighted average normal value with the prices of all individual export transactions to the European Union’.

143. That having been said, it is apparent from recital 47 of Commission Implementing Regulation 2016/2005 that the Commission used the so-called ‘symmetrical’ method to calculate the dumping margin of the respondent to the cross-appeal.

144. The reason why the Court held that the determination of the dumping margin constituted an infringement of Article 2(11) of the basic regulation was that it was incompatible with the principle set out by the Court of Justice in its judgment in the case of Changshu City Standard Parts Factory and Ningbo Jinding Fastener v Council, ( 59 ) namely that ‘both the symmetrical and the asymmetrical methods for calculating the dumping margin must serve to reflect the full degree of dumping being practised’. ( 60 )

145. It is thus clear that, contrary to the ETPA’s submissions, Article 2(11) of the basic regulation does not give the Commission an absolute discretion as to the method of comparison to be used in making a determination of dumping. While the Commission may opt either for the symmetrical or the asymmetrical method, it must always have regard to the objective pursued by Article 2(11) of the basic regulation, which is to ensure that the method used reflects the full degree of the dumping practised, as the Court of Justice has held.

146. To return to the examination of the cross-appeal, it will be seen that in paragraphs 86 and 87 of the judgment under appeal, the Court held that the weighting of the dumping margins as regards, respectively, sales by Hansol of jumbo rolls for conversion into small rolls and resale to EU independent customers, and sales by Hansol of jumbo rolls as such, without conversion, to EU independent customers, whether made directly or through Schades, ‘[did] not reflect the full extent of the dumping practised by [Hansol]’. In other words, the Commission’s assessment was imprecise and thus did not constitute a sufficient basis to justify the adoption of anti-dumping measures such as those imposed by the regulation at issue.

147. More specifically, at paragraph 86 of the judgment under appeal, the Court observed that, for the purposes of calculating Hansol’s dumping margin with respect to jumbo rolls converted into small rolls, ‘the Commission decided to use Schades’ data in order to calculate the dumping margin on the sales made by the applicant to the three other related converters. Therefore, in the light of the fact that the Commission knew that part of the sales of the product concerned to Schades had been resold without conversion to independent customers, it should have reflected that in the sales of the product concerned to the other related converters [Schades Nordic, Heipa and R+S]. By failing to take that factor into consideration, the Commission gave too much weight to sales to the related converters for conversion into small rolls, thereby increasing the actual dumping carried out by the applicant’.

148. It was on that basis that the Court concluded, correctly, in paragraph 87 of the judgment under appeal, that ‘since the calculations made by the Commission do not reflect the full extent of the dumping practised by the applicant, an infringement of Article 2(11) of the basic regulation must be found’. That legal conclusion seems to me to be indisputable having regard to the error of assessment which the Court duly found to have been made, in the exercise of its powers.

149. It follows that, contrary to what the ETPA claims, it is clear that the Court set out with sufficient clarity and precision the requirement of Article 2(11) of the basic regulation which had been infringed by the Commission in its assessment of the facts, namely the necessity for the method used to reflect the full degree of the dumping practised.

150. The ETPA’s argument, which is based on an interpretation of the WTO rules, cannot invalidate the conclusions of the General Court. The ETPA contends, in essence, that the claimed absence of additional requirements regarding the method for calculating a weighted average has been confirmed by the WTO panel in the case of European Communities – Bedlinen (Article 21.5) ( 61 ) – which, the ETPA submits, held that since the provisions requiring a weighted average are silent with regard to the calculation methods, it is up to the investigating authority to determine an appropriate methodology.

151. It suffices to observe, in that regard, that in the case to which the EPTA refers, the question before the WTO panel was whether Article 2.2.2(ii) of the WTO anti-dumping agreement imposed requirements as to the basis on which the averages of the amounts for costs and profits, to be used in constructing normal value, must be weighted. ( 62 ) It should be observed that the provision of the WTO anti-dumping agreement corresponding to Article 2(11) of the basic regulation is Article 2.4.2, and not Article 2.2.2(ii). Hence, the ETPA is seeking to rely on a WTO panel report concerning an issue which, quite evidently, is not relevant to the present case. It follows that no useful conclusion can be drawn from that report as regards the interpretation of Article 2(11) of the basic regulation. Accordingly, I consider that that argument must be rejected.

152. In conclusion, the ETPA’s alternative argument, by which it contends that Article 2(11) of the basic regulation does not require the Commission to apply the method used for the construction of the export price to the calculation of the normal value, is also unfounded.

153. It will be noted that the method for constructing export prices is set out in Article 2(9) of the basic regulation. However, the Court did not suggest, at any point, that the Commission ought to have based its calculation of the weighting of the dumping margins on Article 2(9) of the basic regulation. Rather, the Court merely stated, in paragraphs 86 and 87 of the judgment under appeal, that the weighting applied to the dumping margins by the Commission did not reflect the full degree of the dumping practised by Hansol, and thus infringed Article 2(11) of the basic regulation. The ETPA’s alternative argument is thus also unfounded.

154. Having regard to the preceding considerations, the ETPA’s argument that the Commission is not required to comply with any requirement, or follow any guidance, as regards the method for calculating the weighted average, must be rejected.

2. The second ground of appeal

(a) Arguments of the parties

155. By the second ground of the cross-appeal, the ETPA contends that the Commission’s weighting of the dumping margin, based on a comparison of total sales of the product under consideration within the European Union as between, on the one hand, direct and indirect sales to independent customers and, on the other, sales to related converters for conversion into small rolls, was lawful, as the Commission was entitled to calculate the weighting of Hansol’s different sales channels on the basis of the best facts available, as provided by Article 18 of the basic regulation. The ETPA contends that the Court made an error of law in holding that the Commission’s calculation of the dumping margin did not reflect the full degree of the dumping practised by the respondent to the cross-appeal.

156. Hanso