Judgment of the General Court (Ninth Chamber) of 15 November 2018 –

RFA International v Commission

(Case T‑113/15)

(Dumping — Imports of ferro-silicon originating in Russia — Rejection of applications for a refund of anti-dumping duties paid — Determination of the normal value and the export price — Single economic entity — Reflection of the anti-dumping duty in resale prices in the European Union — Application of a methodology different from that used in an earlier investigation — Article 2(9) and Article 11(9) and (10) of Regulation (EC) No 1225/2009 (now Article 2(9) and Article 11(9) and (10) of Regulation (EU) 2016/1036) — Article 18.3.1 of the WTO anti-dumping agreement)

1. Common commercial policy — Protection against dumping — Discretion of the institutions — Judicial review — Limits (see para. 40)

2. Common commercial policy — Protection against dumping — Dumping margin — Determination of the export price — Recourse to a constructed export price — Conditions — Association between exporter and importer (Council Regulation No 1225/2009, Art. 2(9)) (see para. 46)

3. Common commercial policy — Protection against dumping — Dumping margin — Determination of the export price — Recourse to a constructed export price — Adjustments — Automatic application — Challenge to the level of the adjustments — Burden of proof (Council Regulation No 1225/2009, Art. 2(9)) (see para. 49)

4. Common commercial policy — Protection against dumping — Dumping margin — Calculation of the export price — Factor to be taken into account — Price charged in the ordinary course of trade — Distribution companies controlled by the producer — Use of sales prices charged by those companies — Legality (Council Regulation No 1225/2009, Art. 2(9) and (10)) (see para. 55)

5. Common commercial policy — Protection against dumping — Review procedure — Change in the method of calculation — Conditions — Change in circumstances — Significant variation in the production costs of the products the subject of a review — Lack of reliability of the method used during the initial investigation (Council Regulation No 1225/2009, Art. 11(9) and (10)) (see paras 69-71, 77, 78)

6. International agreements — Agreement establishing the World Trade Organisation — GATT 1994 — Direct effect — Absence — Not possible to invoke WTO agreements to challenge the legality of an EU measure — Exceptions — EU measure intended to ensure their implementation or referring thereto expressly and precisely (Art. 263, first para. TFEU; General Agreement on Tariffs and Trade 1994) (see para. 84)

7. Common commercial policy — Protection against dumping — Application for reimbursement of anti-dumping duties on the basis of Article 11(8) of Regulation No 1225/2009 — Assessment by the Commission — Determination of the calculation method pursuant to Article 11(9) of Regulation No 1225/2009 — Need to interpret in conformity with the 1994 GATT Anti-Dumping Agreement — Absence (Agreement on implementation of Article VI of the General Agreement on Tariffs and Trade, (1994 anti-dumping agreement), Art. 18.3.1; Council Regulation No 1225/2009, Art. 11(9)) (see paras 85-87)

Re:

Application under Article 263 TFEU for annulment in whole or in part of Commission Implementing Decisions C(2014) 9805 final, C(2014) 9806 final, C(2014) 9807 final, C(2014) 9808 final, C(2014) 9811 final, C(2014) 9812 final and C(2014) 9816 final of 18 December 2014 concerning applications for refund of anti-dumping duties paid on imports of ferro-silicon originating in Russia.

Operative part

The Court:

1. Dismisses the action;