30.

I will therefore confine myself to reproducing paragraphs 69 to 75 and 77 to 79 of the judgment under appeal, in which the General Court set out its reasons for rejecting that plea for annulment. It did so as follows: ‘69 In that regard, it must, first of all, be stated that, as regards the application of Article 11(10) of the basic regulation, it is justified, where the production costs of the products concerned have varied significantly between the investigation period previously taken into consideration and the new investigation period, for the Commission to take into account, in order to ascertain whether the anti-dumping duties are duly reflected in the resale prices of those products in the European Union during that latter period, not the resale prices established during the first of those periods, but the costs recorded during the new investigation period. Those considerations are valid even if it may be considered that there has been a change in methodology in relation to what was done in the context of an earlier investigation, as is true in the present case contrary to what the Commission principally claimed in the contested decisions and as set out in paragraph 22 above. 70 Such a practice seeks to ensure solid analysis in the comparison of complex economic situations in order not only to justify the merits of the measures adopted under the anti-dumping legislation, but also to ensure, between the operators likely to be the subject of those measures, compliance with the general EU law principle of equal treatment. While ensuring the solidity, in the economic analysis, of the comparison of the situation between two periods justifies, as a rule, the application of the same methodology, that is not the case if the relevant parameters have sufficiently changed to render the application of the methodology previously used inappropriate for the purpose of giving a reliable result, in this case in order to assess whether or not the anti-dumping duties were duly reflected in the resale prices and subsequent selling prices in the European Union (see, to that effect and by analogy, judgment of 18 September 2014, Valimar, C‑374/12, EU:C:2014:2231, paragraphs 50 and 59). As the Commission contends, if the production costs have significantly increased between the two periods compared, an increase in the resale prices in the European Union, even if considerable, does not necessarily guarantee that the anti-dumping duties have been duly reflected, that is to say fully reflected, in the establishment of those prices. Production costs may have increased more than prices. In that case, even if the new prices are higher than the former prices plus anti-dumping duties, the interested parties do not duly incorporate the anti-dumping duties given the change in their production costs. 71 The arguments put forward by the applicant in the present case do not call into question that analysis. First of all, contrary to what the applicant essentially claims, Article 11(10) of the basic regulation in no way implies, in so far as it relates to the issue of whether “the duty is duly reflected in resale prices”, that only the equivalent of the anti-dumping duty should be incorporated into the new resale price over and above the resale price previously charged in order to benefit from a positive response. An additional duty in relation to the costs normally incurred is “duly reflected” only if it is added to those other costs. If those other costs increase, but the resale price increases by a lesser amount, the duty is in fact only partially added to those costs or not at all, even if the equivalent of the duty has been added to the resale price previously charged. The extract from the Commission Notice concerning the reimbursement of anti-dumping duties, highlighted by the applicant and cited in paragraph 58 above, in no way contradicts that analysis. The same is true of the judgment of 18 November 2015, Einhell Germany and Others vCommission (T‑73/12, EU:T:2015:865), relied on by the applicant. In particular, paragraph 155 of that judgment states, read in context, that a methodology other than the comparison of resale prices in the European Union charged before the institution of the anti-dumping duties and those charged subsequently may be appropriate to determine whether or not those duties are reflected in the new resale prices in the European Union. 72 As regards the actual facts of the present case, as far as the fourth refund investigation period is concerned, which corresponds to the year 2012, it must be pointed out that, in the contested decisions, for example in recital 85 of Decision C(2014) 9805 final, the Commission found that the production costs had increased significantly compared with the initial investigation period, by 109%, without being disproved as to the substance by the applicant, in particular in the present action. In those circumstances, in order to determine whether the anti-dumping duties were duly reflected in the resale prices in the European Union charged by the applicant on behalf of CHEMK and KF during the fourth refund investigation period, the Commission was justified in taking into account not the resale prices during the initial period, but rather the production costs recorded in 2012. 73 In a situation where, as the Commission noted in the contested decisions, for example in recital 84 of Decision C(2014) 9805 final, only in 1% of cases [do] the resale prices in the European Union cover the cost of the products, inclusive of the anti-dumping duty, it is far from proven that those duties are in fact duly reflected in those prices. 74 Even the increase in the resale prices between the initial investigation period and the fourth refund investigation period of over 100%, put forward by the applicant, is insufficient in that context to show that the anti-dumping duties were fully reflected during the second of those periods. It is sufficient, as indicated in essence in paragraph 70 above, if the production costs have increased more than the prices charged in order for those prices not to reflect the anti-dumping duties duly, given the change in production costs. That is a priori proven by the fact, found by the Commission, that in 99% of cases the cost of the products, inclusive of anti-dumping duty, was not covered by the resale prices in the European Union in 2012. 75 The Commission was, therefore, right in deducting the anti-dumping duty from the resale price of the first independent buyer in the European Union in order to calculate the constructed export price for the fourth refund investigation period, since it was not proven that the anti-dumping duty was duly reflected in the first of those prices. … 77 However, the Commission correctly contends, as it set out in the contested decisions, for example in recital 78 of Decision C(2014) 9805 final, that the analysis of the resale prices in the European Union in order to ascertain to what extent they reflect the anti-dumping duties must be carried out at the level of trade subsequent to the payment of those duties, that is to say, by definition, at a level of trade where the price takes into account additional costs compared with those selected at the “ex works” or CIF [Cost, Insurance and Freight] stage. It must be pointed out in that regard that while it is provided for in the basic regulation that certain prices may be adjusted at a level of trade different from that at which they are normally charged, this is to ensure a fair comparison of the prices which do not necessarily reflect the same services. Accordingly, Article 2(10)(d) of the basic regulation (now Article 2(10(d) of Regulation 2016/1036) ( 17 ) provides that a fair comparison between the export price and the normal value may require adjustments in order to take into account the differences in the levels of trade at which those prices are charged. That is not the case, however, in order to assess only the resale prices in the European Union in the context of Article 11(10) of the basic regulation, which does not provide for such adjustments. Moreover, inasmuch as the Commission is justified, in order to apply that provision, in certain situations such as the present case, in analysing the resale prices taking into account all the costs incurred before that resale, as noted in paragraph 69 above, an analysis of prices established at the “ex works” or CIF stage, even artificially adding anti-dumping duties thereto as the applicant maintains was done — that is to say not taking into account some of the costs borne before that resale — would not be coherent. In addition, in those situations, there is no need to carry out a comparison of the resale prices in the European Union between two successive periods; such a comparison may be affected, as in the present case, by the differences in time of the levels of trade at which the importers of the products concerned invoiced them in respect of the first independent buyers in the European Union. It is, on the other hand, essential to verify whether the evidence put forward by the importer concerned proves that the price actually paid by those buyers during the period under examination duly reflects the anti-dumping duties. In that regard, it was found in the contested decisions, which is not disputed by the applicant, that it then for the most part sold the products there on the basis of the “delivered duty paid” price, that is to say encompassing all the costs prior to delivery, which was such as to facilitate that verification. 78 Consequently, the applicant could not rely on the change in the prices brought back to the “ex works” or CIF stage, even increased by the anti-dumping duties, in order to show that it reflected, during the third refund investigation period, the anti-dumping duties in its resale prices in the European Union. It ought to have adduced evidence showing that its “delivered duty paid” prices charged during that period covered all the costs incurred at that stage for the products at issue, anti-dumping duties included, which it was unable to do. The Commission was, therefore, fully entitled to deduct the anti-dumping duty from the resale price to the first independent buyer in the European Union in order to calculate the constructed export price for the third refund investigation period, since it was not shown that the anti-dumping duty was duly reflected in the first of those prices. There is, consequently, no need to examine the arguments exchanged between the parties as to the reliability or method of calculation of those “ex works” and CIF prices. As regards the applicant’s assertion in the reply that even the comparison of the resale prices at the “delivered duty paid” stage would give a result that must lead to a partial refund of duties, it is not, in any event, sufficiently substantiated in order to be able to be taken into consideration in the context of the review of the lawfulness of the contested decisions (see, to that effect, judgment of 17 March 2015, RFA International v Commission, T‑466/12, EU:T:2015:151, paragraph 44 and the case-law cited). 79 It follows from the foregoing that the applicant’s second plea in law, alleging an infringement of Article 11(9) and (10) of the basic regulation in the construction of the export price, is also unfounded.’