OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 14 April 2011 ( 1 )

Joined Cases C-191/09 P and C-200/09 P

Council of the European Union (C-191/09 P),

European Commission (C-200/09 P)

v

Interpipe Niko Tube,

Interpipe NTRP

‛Appeal — Common commercial policy — Dumping — Regulation (EC) No 384/96 — Articles 2(10), 3(2), 18(3) and 19(3) — Comparison of the normal value and the export price — Adjustment — Rights of the defence — Imports of certain seamless tubes and pipes, of iron or steel, originating in Croatia, Romania, Russia and Ukraine — Regulation (EC) No 954/2006 — Cooperation by the European Union industry — Use of confidential information’

Table of contents

I – Introduction II – The background to the dispute and the judgment under appeal III – The procedure before the Court and the forms of order sought IV – Analysis A – Grounds of the main appeals alleging errors of law in the General Court’s finding relating to the adjustment made pursuant to Article 2(10)(i) of the basic regulation 1. Grounds of the main appeals, alleging errors of law vitiating the application by analogy of the case-law on the single economic entity concept a) Arguments of the parties b) Analysis 2. The pleas of the main appeals, alleging an error of law in allocating the burden of proof that the conditions for applying the adjustment made pursuant to Article 2(10)(i) of the basic regulation have been fulfilled a) Arguments of the parties b) Analysis c) 3. The pleas of the main appeals alleging infringement of the limits of judicial review d) (a) Arguments of the parties e) (b) Analysis B – The third ground of the cross-appeal, alleging errors of law committed in the application of Article 2(10)(i) of the basic regulation in respect of transactions carried out by SEPCO concerning pipes produced by Niko Tube 1. Arguments of the parties 2. Analysis C – The grounds of the main appeals alleging errors of law in the finding of an infringement of the applicants’ defence rights at first instance in the context of the adjustment made pursuant to Article 2(10)(i) of the basic regulation 1. Arguments of the parties 2. Analysis D – The first two grounds of the cross-appeal brought by Niko Tube and NTRP 1. The first ground of the cross-appeal, alleging errors of law which allegedly vitiated the General Court’s examination of the calculation of normal value a) Essential background to the dispute concerning the exclusion of atomic pipes falling under PCN KE4 b) The five limbs of the first ground of the cross-appeal c) The first two limbs, alleging, respectively, an infringement of the rights of the defence and a failure to take account of the limits of judicial review i) Arguments of the parties ii) Analysis d) The third limb, alleging failure to respond to a plea i) Arguments of the parties ii) Analysis e) Fourth limb, alleging a manifest error of assessment of the duty of diligence i) Arguments of the parties ii) Analysis f) The fifth limb, alleging a distortion of the clear meaning of the evidence i) Arguments of the parties ii) Analysis 2. The second ground of the cross-appeal, alleging errors of law vitiating the examination by the General Court of the determination of the injury caused to the EU industry a) Preliminary considerations b) The eight limbs of the second ground of the cross-appeal, alleging errors of law vitiating the examination of the alleged infringement of Article 3(2), (3) and (5) to (7) of the basic regulation i) Essential background to the relevant aspects of the dispute and the General Court’s considerations ii) Arguments of the parties iii) Analysis – The first two limbs – The other limbs in so far as they concern related companies listed in paragraph 111 of the judgment under appeal – The complaints regarding the six companies affiliated to Dalmine – The complaints concerning VMOG United Kingdom c) The two limbs of the second ground of the cross-appeal alleging errors of law vitiating the examination of the alleged infringement of Article 19(3) of the basic regulation i) Arguments of the parties ii) Analysis V – The action before the General Court VI – Costs VII – Conclusion

I – Introduction

1. By their respective appeals, the Council of the European Union (C-191/09 P) and the European Commission (C-200/09 P) ask the Court to set aside the judgment of the Court of First Instance of the European Communities (now ‘the General Court’) of 10 March 2009 in Case T-249/06 Interpipe Niko Tube and Interpipe NTRP v Council ( 2 ) (‘the judgment under appeal’), in so far as that judgment annulled Article 1 of Council Regulation (EC) No 954/2006 of 27 June 2006 imposing definitive anti-dumping duty on imports of certain seamless pipes and tubes, of iron or steel originating in Croatia, Romania, Russia and Ukraine, repealing Council Regulations (EC) No 2320/97 and (EC) No 348/2000, terminating the interim and expiry reviews of the anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating, inter alia, in Russia and Romania and terminating the interim reviews of the anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating, inter alia, in Russia and Romania and in Croatia and Ukraine (‘the contested regulation’). ( 3 )

2. In their response, Interpipe Niko Tube (‘Niko Tube’) and Interpipe NTRP (‘NTRP’) brought a cross-appeal, pursuant to Article 116 of the Rules of Procedure of the Court, in so far as the General Court rejected their claims.

II – The background to the dispute and the judgment under appeal

3. Niko Tube and NTRP are two Ukrainian companies which produce seamless tubes and pipes. They are affiliated to two sales companies, that is to say SPIG Interpipe (‘SPIG’), established in Ukraine, and SEPCO, established in Switzerland.

4. Following a complaint, the Commission initiated an anti-dumping proceeding in March 2005 concerning imports of seamless pipes and tubes, of iron or steel, originating, inter alia, in Ukraine.

5. The investigation into dumping and resulting injury concerned the period from 1 January to 31 December 2004. Examination of the trends relevant for assessing injury covered the period from 1 January 2001 to 31 December 2004.

6. In view of the large number of Community producers supporting the complaint, the Commission proceeded, pursuant to Article 17 of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community, ( 4 ) as amended by Council Regulation (EC) No 461/2004 of 8 March 2004 ( 5 ) (‘the basic regulation’), to select five Community producers for the purposes of the investigation. That sample initially comprised the following five Community producers: Dalmine SpA (‘Dalmine’), Benteler Stahl/Rohr GmbH, Tubos Reunidos SA (‘Tubos Reunidos’), Vallourec & Mannesmann France SA and V & M Deutschland GmbH. When Benteler Stahl/Rohr GmbH decided not to cooperate with the investigation, the Commission replaced it with Rohrwerk Maxhütte GmbH.

7. By letters of 6 June and 14 July 2005, Niko Tube and NTRP as well as SPIG and SEPCO sent the Commission their responses to the anti-dumping questionnaire. On-site verifications took place at the premises of Niko Tube and NTRP and those of SPIG from 17 to 26 November 2005.

8. On 27 February 2006, the Commission sent Niko Tube and NTRP the first disclosure document, detailing the facts and considerations on the basis of which it was proposing to adopt definitive anti-dumping measures.

9. By letter of 22 March 2006, Niko Tube and NTRP officially challenged the Commission’s findings as set out in the first disclosure document. They claimed that the Commission had wrongly included data on products which were not manufactured by them, that the Commission compared the normal value and export price at a different level of trade, which is contrary to the introductory part of Article 2(10) of the basic regulation, and that, by treating SEPCO as an importer and constructing its export price, the Commission infringed Article 2(9) of that regulation.

10. Following two hearings in the presence of Niko Tube and NTRP and subsequent contacts with those companies, on 24 April 2006 the Commission adopted its second disclosure document. In that document the Commission rejected the request for the exclusion of certain products not manufactured by Niko Tube and NTRP, that is to say products falling under product control number (‘PCN’) KE4, from the calculation of the normal value. It carried out an adjustment to SEPCO’s sale prices, no longer on the basis of Article 2(9) of the basic regulation, but under Article 2(10)(i) thereof. Finally, in that document, the Commission provided some information regarding the cooperation of the Community industry.

11. By fax of 26 April 2006, Niko Tube and NTRP reminded the Commission that the data provided in response to the anti-dumping questionnaire and verified by the Commission officials demonstrate that the atomic pipes falling under PCN KE4 were not produced by Niko Tube and NTRP.

12. Those companies submitted their full observations on the second disclosure document to the Commission by letter of 4 May 2006.

13. On 7 June 2006 the Commission adopted and made public its proposal for a definitive anti-dumping regulation.

14. By fax received by Niko Tube and NTRP on 26 June 2006 at 19.06 hrs, the Commission replied to the arguments raised by those companies in the fax of 26 April 2006 and the letter of 4 May 2006, save for the argument concerning lack of cooperation from the Community industry. By letter sent to Niko Tube and NTRP on 16 June 2006, which they received on 27 June 2006, the Commission replied to their comments with regard to the support from the Community industry for the proceeding.

15. On 27 June 2006, the Council adopted the contested regulation.

16. By that regulation, the Council imposed anti-dumping duties of 25.1% on imports of seamless pipes and tubes, of iron or steel, from Niko Tube and NTRP.

17. Niko Tube and NTRP brought an action for annulment of the contested regulation before the General Court.

18. In support of their action for annulment, the applicants at first instance put forward six pleas in law, the General Court’s examination of which was rearranged by reference to the facts to which they related, under the following five headings: — Calculation of the normal value; — The consequences of the lack of replies to the questionnaire from companies affiliated to the Community producers; — The adjustment made on the SEPCO sale price; — The offer of an undertaking by the applicants (at first instance); — The treatment of sales costs, administrative costs and other general expenses of SPIG.

19. In the judgment under appeal, the General Court rejected most of the pleas put forward by the applicants at first instance.

20. Nevertheless, it upheld, with respect to transactions relating to pipes manufactured by NTRP, the limb of the fourth plea relied on by the applicants at first instance, alleging the existence of a manifest error of assessment in the application of Article 2(10)(i) of the basic regulation in that the Council made an adjustment to the export price charged by SEPCO.

21. The General Court also upheld, with respect to the two applicants at first instance, the limb of the sixth plea relied on, alleging breach of the rights of the defence in the context of the application of that adjustment.

22. The General Court therefore annulled Article 1 of the contested regulation in so far as the anti-dumping duty fixed for exports towards the European Community of the products manufactured by the applicants at first instance exceeded that which would have been applicable had the export price not been adjusted for a commission when sales had taken place through the intermediary of the affiliated trader SEPCO.

III – The procedure before the Court and the forms of order sought

23. On 27 and 29 May 2009, the Commission and the Council respectively appealed against the judgment under appeal.

24. By order of the President of the Court of 15 July 2009 the two cases were joined for the purposes of the written and oral procedure and the judgment.

25. By its appeal, the Council claims that the Court should: — set aside the judgment under appeal in so far as the General Court: (1) annulled Article 1 of the contested regulation; and (2) ordered the Council to bear its own costs and pay one quarter of the costs incurred by the applicants at first instance; — dismiss the application in its entirety; and — order the applicants at first instance to pay the costs of the appeal and of the procedure before the General Court.

26. In its appeal the Commission claims that the Court should: — set aside paragraph 1 of the operative part of the judgment under appeal; — dismiss the application in its entirety; — order the applicants at first instance to pay the costs incurred by the Commission in the present appeal.

27. In their responses, Niko Tube and NTRP contend that the Court should: — dismiss the Council’s appeal as partially inadmissible and in any event as unfounded in its entirety; — dismiss the Commission’s appeal as partially inadmissible and in any event as unfounded in its entirety; — confirm the judgment under appeal in so far as it upholds the pleas put forward by the applicants at first instance and in so far as it annuls the contested regulation in so far as the anti-dumping duty fixed for exports towards the Community of the products manufactured by Niko Tube and NTRP exceeded that which would have been applicable had the export price not been adjusted for a commission when sales had taken place through the intermediary of the affiliated trader SEPCO; — uphold the order as to costs made in the judgment under appeal and order the Council to pay the costs incurred by the applicants at first instance before the Court in connection with its appeal; — order the Commission to pay the costs of the applicants at first instance before the Court in relation to the Commission’s appeal. The Commission should, in any event, bear its own costs and those of the applicants at first instance for the response before the Court, as it chose to submit a separate appeal against the judgment under appeal when it could have been heard at the same time if it remained an intervener in this case. In any event, the costs of the Commission for the proceedings before the Court should be borne by the Commission alone.

28. In their cross-appeal, Niko Tube and NTRP claim that the Court should: — set aside the judgment under appeal, in so far as the General Court did not annul the contested regulation in its entirety and in so far as it ordered the applicants at first instance to bear three quarters of their costs incurred in the proceedings before it; — give final judgment in the case and annul the contested regulation in its entirety; — order the Council and the Commission to bear their own costs and to pay those incurred by the applicants at first instance before the General Court and before the Court of Justice in these proceedings.

29. In their respective responses to the cross-appeal, the Council and the Commission submit that the Court should: — dismiss the cross-appeal; — in the alternative, refer the case back to the General Court; — order the applicants at first instance to pay the costs of the cross-appeal.

30. The parties presented oral argument at the hearing before the Court of 18 November 2010.

IV – Analysis

31. In support of its appeal, the Council relies on seven grounds. The first four grounds of appeal relate to the General Court’s finding set out in paragraphs 177 to 187 of the judgment under appeal regarding the adjustment made pursuant to Article 2(10)(i) of the basic regulation and, consequently, that carried out in paragraphs 196 and 197 of the judgment under appeal. Those grounds are essentially identical to the first three pleas put forward by the Commission in support of its own appeal. It is therefore appropriate to examine them together.

32. To the extent that, in their cross-appeal, Niko Tube and NTRP also criticise the partial rejection by the General Court of their plea at first instance relating to the application of Article 2(10)(i) of the basic regulation, I propose to examine the third ground of their appeal immediately after those of the main appeals relating to that provision.

33. In the main appeal, the Council relies on three other grounds, alleging errors of law allegedly committed by the General Court, in paragraphs 202 to 211 of the judgment under appeal, in finding that the rights of defence of the applicants at first instance were infringed in the context of the adjustment made pursuant to Article 2(10)(i) of the basic regulation. Those grounds may be analysed concurrently with the fourth ground put forward by the Commission, which criticises the same paragraphs of the judgment under appeal.

34. Finally, I shall examine the first two grounds of the cross-appeal put forward by Niko Tube and NTRP, which are concerned with the findings of the General Court other than those relating to the application of Article 2(10)(i) of the basic regulation.

A – Grounds of the main appeals alleging errors of law in the General Court’s finding relating to the adjustment made pursuant to Article 2(10)(i) of the basic regulation

35. These grounds relate to three aspects of the General Court’s reasoning. First, the Council and the Commission criticise the General Court for having applied by analogy the case-law on the single economic entity concept laid down in the context of calculating normal value. Secondly, they consider that the General Court wrongly placed on those two European Union (‘EU’) institutions the burden of proving that the conditions for application of Article 2(10)(i) of the basic regulation were met. Thirdly and finally, the Council and the Commission complain that the General Court exceeded the limits of its powers of judicial review.

1. Grounds of the main appeals, alleging errors of law vitiating the application by analogy of the case-law on the single economic entity concept

a) Arguments of the parties

36. The Council and the Commission criticise the General Court for having held, in paragraph 177 of the judgment under appeal, that the consistent case-law of the Court concerning consideration of the existence of a single economic entity, relevant for the calculation of the normal value, was applicable, by analogy, in the context of the calculation of the export price. According to those institutions, the calculation of the normal value, the determination of the export price and their comparison are governed by a series of separate rules, each of which must be satisfied separately. The single economic entity concept is concerned solely with certain specific situations on the domestic market of exporters. It is therefore relevant only in the context of the calculation of the normal value. According to the Commission, the case-law of the Court to which the General Court failed to refer in the judgment under appeal confirms that assessment.

37. The Council and the Commission also refer to an internal inconsistency in the General Court’s reasoning in that it states, in paragraph 177 of the judgment under appeal, that the single economic entity concept applies by analogy to the calculation of the export price, although the dispute brought before it relates to the adjustment made after calculating that price.

38. In the light of those considerations, the Council and the Commission also submit that the General Court should have explained why it considered that the single economic entity concept was applicable by analogy in the context of determining the export price.

39. Niko Tube and NTRP argue first of all that this ground is inadmissible because the Council and the Commission have already had an opportunity to challenge the relevance of the use of the single economic entity concept before the General Court.

40. Next, as to the substance, Niko Tube and NTRP consider that the General Court correctly held that the single economic entity concept was relevant in the determination of the export price before and after the adjustment made pursuant to Article 2(10)(i) of the basic regulation. The issue of the existence of control and of the sharing of production and sales activities within a group formed by legally distinct entities and, therefore, the issue of whether there is a single economic entity simply constitute findings concerning the actual commercial situation, that is to say describe the respective roles and functions of the related separate entities. In so far as the General Court recognises that the determination of the normal value and the determination of the export price are governed by different specific rules, it is normal, in the view of those companies, that it should refer to the application ‘by analogy’ of the concept that the sharing of activities does not prevent the entities concerned from constituting a single economic entity. Furthermore, the fact that the consequences of a single economic entity may differ for the determinations of normal value and export price does not prevent a broader application of the consistent case-law relating to that concept, which the Court has thus far examined only in the context of certain disputes.

b) Analysis

41. At the outset, I consider that the plea of inadmissibility raised by Niko Tube and NTRP must be rejected. The fact that the Council and the Commission could, if necessary, have disputed the relevance of applying the single economic entity concept in the context of the case brought before the General Court in no way deprives them of the possibility of criticising the findings, set out in the judgment under appeal, which the General Court arrived at in that regard. Moreover, no paragraph in that case mentions the fact that those two institutions accepted the application of that concept in the context of the adjustment made pursuant to Article 2(10)(i) of the basic regulation.

42. On the merits, it should first be recalled that under Article 1(2) of the basic regulation, a product is to be considered as being dumped if its export price to the European Union is less than a comparable price for the like product, in the ordinary course of trade, as established for the exporting country.

43. According to the basic regulation, the dumping margin is to be the amount by which the normal value exceeds the export price. The determination of the existence of dumping is therefore based on a fair comparison between the normal value, based on the prices paid or payable, in the ordinary course of trade, by independent customers in the exporting country, and the export price, that is to say the price actually paid or payable for the product sold for export to the European Union.

44. Under Article 2(10) of that regulation, a fair comparison is to be made at the same level of trade and in respect of sales made at as nearly as possible the same time and with due account taken of other differences which affect price comparability. Where the normal value and the export price are not on such a comparable basis, the same provision of the basic regulation provides that due allowance, in the form of adjustments, is to be made in each case, on its merits, for differences in factors which are claimed, and demonstrated, to affect prices and price comparability.

45. Among the factors for which adjustment can be made is that provided for by Article 2(10)(i) of that regulation, entitled ‘Commissions’. Under that provision ‘[a]n adjustment shall be made for differences in commissions paid in respect of the sales under consideration. The term “commissions” shall be understood to include the mark-up received by a trader of the product or the like product if the functions of such a trader are similar to those of an agent working on a commission basis’.

46. According to recital 132 in the preamble to the contested regulation, and as explained by the Council and Commission, the Council made a downward adjustment of the export prices of Niko Tube and NTRP for all sales of their products destined for the European Union made through SEPCO, either solely through SEPCO or through SEPCO and SPIG, pursuant to Article 2(10)(i) of the basic regulation.

47. That adjustment had the effect of increasing the gap between the normal value and the export price of Niko Tube and NTRP’s products and thus of increasing the dumping margin.

48. According to the Council, the adjustment thus made was based on the following two considerations. First, SEPCO was regarded as a trader who performed functions ‘comparable to those of an agent working on a commission basis’ because Niko Tube and NTRP, on the one hand, and SEPCO, on the other hand, obtained the same financial results as in the context of a relationship of principal to agent by behaving as sellers and a buyer. Secondly, there was a disparity between the normal value and the export price, namely that, while all the sales on the domestic market made through SPIG involved a payment solely to that company, all export sales made by SEPCO (either alone or jointly with SPIG) resulted in a payment to SPIG and to SEPCO, since SPIG received payments for all export transactions made through SEPCO.

49. Both during the investigation period and in their appeal before the General Court, Niko Tube and NTRP claimed that they formed with SPIG and SEPCO a single economic entity and, therefore, that the adjustment made pursuant to Article 2(10)(i) of the basic regulation could not apply.

50. It is in that context that, in paragraph 177 of the judgment under appeal, the General Court began the examination of Niko Tube and NTRP’s plea, alleging a manifest error of assessment in the application of Article 2(10)(i) of the basic regulation, noting that ‘[a]ccording to consistent case-law concerning the calculation of the normal value, but applicable by analogy to the calculation of the export price, the sharing of production and sales activities within a group formed by legally distinct companies does not alter the fact that one is dealing with a single economic entity which organises in that manner a series of activities which are carried out, in other cases, by an entity which is also a single entity from the legal point of view (see, by analogy, Case 250/85 Brother Industries v Council [1988] ECR 5683, paragraph 16; Case C-175/87 Matsushita Electric v Council [1992] ECR I-1409, paragraph 12; Case C-104/90 Matsushita Electric Industrial v Council [1993] ECR I-4981, paragraph 9)’.

51. The criticisms of the Council and Commission in respect of that paragraph of the judgment under appeal are threefold. First, according to those institutions, the very principle of using the single economic entity concept outside the context of the calculation of normal value is inconceivable, as demonstrated by the case-law of the Court. Next, the Council and the Commission criticise the General Court for having failed to explain why it extended the Court’s case-law developed in the context of calculating normal value. Finally, the premiss of the General Court’s reasoning, set out in paragraph 177 of the judgment under appeal, is inconsistent with the factual situation on which it had to adjudicate, since the dispute does not relate to the calculation of the export price, but to the adjustment made to that price, pursuant to Article 2(10)(i) of the basic regulation.

52. Although, at first sight, those complaints do not appear without some substance, they ultimately fail to convince me.

53. As regards the last point first of all, I fully recognise that while the criticism of Niko Tube and NTRP relates to the third stage of calculating the dumping margin, that is to say the fair comparison between the normal value and the export price, for which the adjustment provided for in Article 2(10)(i) of the basic regulation has been made, paragraph 177 of the judgment under appeal merely refers to the second stage of determining the dumping margin, that is to say that relating to the calculation of the export price.

54. Moreover, given the need to make a distinction between the three stages of the calculation leading to the determination of the dumping margin, a distinction which clearly follows from the basic regulation itself, the reference to the calculation of the export price cannot have been employed by the Court as also designating, more broadly, the adjustment made to that price pursuant to Article 2(10)(i) of that regulation.

55. Accordingly, although, in my view, it must be accepted that the criticisms of the Council and the Commission directed against the approximate wording of paragraph 177 of the judgment under appeal are well founded, they nevertheless seem to me to be irrelevant.

56. It is undisputed that the ground of appeal of the Council and the Commission is concerned with the application by analogy made by the General Court of the single economic entity criterion outside the context of the calculation of normal value, that is to say also in connection, as in this case, with the adjustment made pursuant to Article 2(10)(i) of the basic regulation.

57. It is therefore to that extent that it is necessary to consider the other two complaints in the present ground.

58. With regard to the first complaint highlighted in point 51 above, it is true that the case-law of the Court relating to the single economic entity concept was developed in the context of calculating normal value. However, as the Council also admitted at the hearing, that fact alone does not mean that the use of that concept outside the context of calculating normal value constitutes an error of law.

59. More fundamentally, it should be noted, as the General Court essentially did in paragraph 178 of the judgment under appeal, that using the single economic entity concept in the context of calculating normal value is intended to include in the sale price of a product the sales by a company legally distinct from the producer, but economically controlled by the latter and with which it thus forms a single economic entity, just as those sales would be if they were made by the producer’s internal sales department. ( 6 )

60. The reason for that assimilation is simple to understand: it avoids costs which are clearly included in the sale price of a product when the sale is carried out by an integrated department in the producer no longer being included where the sale is carried out by a company which, although legally distinct, is economically controlled by the producer. ( 7 )

61. In doing so, discriminatory treatment between producers ( 8 ) and an artificial depreciation of the normal value are avoided, since the distributing company which forms a single economic entity with a producer undoubtedly cannot be regarded as the first independent buyer for the purposes of calculating that value.

62. Similarly, if a producer distributes its products for export to the European Union through a company which is legally distinct, but over which it has economic control, I do not see any compelling legal or economic reason for precluding the possibility of recognising that those two operators constitute a single economic entity, which, of course, may affect the calculation of the export price or the comparison of that price with the normal value.

63. Although the Council and the Commission admitted at the hearing before the Court that the existence of a single economic entity between a producer and a distribution company precludes making the adjustment provided for in Article 2(10)(i) of the basic regulation — which already seems to confirm the idea that the single economic entity criterion may also be relevant in assessing the evaluations made in the context of comparing the normal value and the export price — those institutions none the less consider that the case-law of the Court rejected the extension made by the General Court.

64. It is true that, in particular in Minolta Camera v Council, ( 9 ) referred to insistently by the Commission, the Court held that determination of the normal value and determination of the export price are governed by separate rules and that therefore selling, general and administrative expenses need not necessarily be treated in the same way in both cases. ( 10 )

65. Indeed, it is quite possible for a producer to operate on its domestic market through a sales company with which it constitutes a single economic entity, while that is not the case when the producer operates on the export market. Moreover, that was the situation in Minolta Camera v Council. It follows from the judgment of the Court in that case that the selling, administrative and other general expenses of the sales subsidiaries within the exporting country, in that case Japan, which had acted as a sales department of Minolta, were in reality, according to the Court, only comparable to those of its export department, whose equivalent expenses were not deducted from the export price, not, as that company claimed, to those of its European subsidiaries, which led the Court to state that any differences in the amount of those expenses could be taken into account under the adjustments to be made in accordance with the basic regulation applicable at the time of that case. ( 11 )

66. However, first, I do not see why the opposite situation could not arise, namely that a producer of a non-member State operates on its domestic market through a company which it does not control economically, while it distributes its products to the European Union through a company with which it forms a single economic entity. Secondly, I have trouble conceiving what would allow the Council and the Commission to avoid a finding which reflects the economic reality of the relationship between a producer of a non-member State and one of its sales companies on the market for exports to the European Union.

67. In other words, if a producer of a non-Member State and one of its sales companies for exports to the European Union constitute a single economic entity, the economic reality cannot be ignored. By its very nature, such a finding precedes any issue relating to the rules and procedures to apply in determining the three stages of the calculation for establishing the dumping margin. The fact remains that if such a situation must be found to exist, it entails consequences either for the determination of the export price or for the calculation of the adjustments made in the context of the fair comparison between the normal value and the export price. A contrary conclusion would lead to an artificial depreciation of the export price with the aim of increasing the dumping margin.

68. In this case, as I have already stated, the Council acknowledged that the existence of a single economic entity between a producer of a non-member State and the company which carries out its exports to the European Union precludes making the adjustment pursuant to Article 2(10)(i) of the basic regulation.

69. Moreover, it is important to note that, as the General Court pointed out in paragraph 182 of the judgment under appeal, in its fax of 26 June 2006, the Commission set out three factors on which it based its conclusion that SEPCO carried out functions comparable to those of an agent working on a commission basis, which relate to the commercial functions of SEPCO and to the control exercised by Niko Tube and NTRP on the latter. ( 12 ) However, those factors in the analysis are largely common to those used in the context of determining whether a single economic entity exists, as is evident from the judgment referred to in paragraph 179 of the judgment under appeal. ( 13 )

70. Therefore, I consider that the General Court’s finding was not vitiated by an error of law in that the General Court started from the premiss that the single economic entity criterion was relevant for verifying whether, as the Council stated in the contested regulation, the conditions for applying Article 2(10)(i) of the basic regulation were satisfied.

71. In those circumstances, it is also necessary, in my view, to reject the common argument of the Council and the Commission that the General Court was under a particular obligation to explain the application by analogy of the case-law on the single economic entity concept developed in the context of calculating normal value.

72. I therefore suggest that the grounds of the main appeals alleging errors of law vitiating the application by analogy of the case-law on the single economic entity concept should be rejected as partly irrelevant and partly unfounded.

2. The pleas of the main appeals, alleging an error of law in allocating the burden of proof that the conditions for applying the adjustment made pursuant to Article 2(10)(i) of the basic regulation have been fulfilled

a) Arguments of the parties

73. The Council and the Commission consider that the General Court wrongly held in paragraph 180 of the judgment under appeal, that it was incumbent upon the institutions to provide direct evidence or at least circumstantial evidence pointing to the existence of the factors for which the adjustment at issue was made. Moreover, the reference in that paragraph of the judgment under appeal to Kundan and Tata v Council ( 14 ) is also irrelevant in the present case, since the latter case dealt with events prior to the amendment of the basic regulation on which the contested regulation is based.

74. Niko Tube and NTRP propose that those grounds of the main appeals should be rejected.

b) Analysis

75. In paragraph 180 of the judgment under appeal, the General Court held that ‘… just as a party who is claiming adjustments under Article 2(10) of the basic regulation in order to make the normal value and the export price comparable for the purpose of determining the dumping margin must prove that his claim is justified, it is incumbent upon the institutions, where they consider that they must make an adjustment, to base their decision on direct evidence or at least on circumstantial evidence pointing to the existence of the factors for which the adjustment was made, and to determine its effect on price comparability (Case T-88/98 Kundan and Tata v Council [2002] ECR II-4897, paragraph 96)’.

76. Contrary to what the Council and the Commission state, that finding does not seem to me to involve any error of law.

77. In that regard, it should be noted that Article 2(10) of the basic regulation provides that where the normal value and the export price as established are not on a comparable basis due allowance, in the form of adjustments, is to be made in each case, on its merits, for differences in factors which are claimed, and demonstrated, to affect prices and price comparability.

78. The impersonal form used by that provision does not establish the persons who have the burden of identifying the factors giving rise to the need to make an adjustment and demonstrating the extent to which that factor affects the comparability of prices on the internal market and on the export market to the European Union. ( 15 )

79. In those circumstances, the burden of proving that the specific adjustments listed in Article 2(10)(a) to (k) of the basic regulation must be made lies with those who wish to rely on them.

80. Thus, where a producer claims that a (downward) adjustment of the normal value or an (upward) adjustment of the export price applies, it is for that operator to indicate and to establish that the conditions for granting such an adjustment are satisfied. ( 16 )

81. Conversely, as the General Court rightly ruled, where, as in the present case, the Commission and the Council consider that it is appropriate to apply a downward adjustment of the export price, on the ground that a sales company affiliated to a producer carries out functions comparable to those of an agent working on a commission basis, it is their responsibility to adduce at the very least convergent evidence showing that that condition is fulfilled.

82. Accordingly, I propose that the pleas of the main appeals alleging an error of law in allocating the burden of proof that the conditions for applying the adjustment made pursuant to Article 2(10)(i) of the basic regulation have been met should be rejected.

c) 3. The pleas of the main appeals alleging infringement of the limits of judicial review

d) (a) Arguments of the parties

83. The Council and the Commission submit that, contrary to the case-law applicable in the field, which, moreover, it did not consider, the General Court did not merely check whether those institutions based their decision on incorrect facts or committed a manifest error of assessment by making the adjustment provided for in Article 2(10)(i) of the basic regulation. On the contrary, in paragraphs 184 to 189 of the judgment under appeal, it substituted its own assessment for that of those institutions by wrongly applying the single economic entity criterion.

84. Furthermore, the General Court’s assessment was limited, also incorrectly, to the three factors outlined in the fax from the Commission dated 26 June 2006, without taking into account the additional explanations provided by the Council in the judicial proceedings at first instance. Moreover, the General Court misunderstood some of the reasons set out in that fax, which governed the application of the adjustment provided for in Article 2(10)(i) of the basic regulation.

85. The Commission also argues that the General Court’s conclusion that the institutions could not make the adjustment at issue is inconsistent with that, set out in paragraph 213 of the judgment under appeal, according to which the General Court ruled that the fax of 26 June 2006 contained a detailed statement of the reasons why that adjustment was made.

86. Finally, the Council and the Commission indicate that the fact that their complaints are well founded automatically invalidates the General Court’s finding in paragraphs 193 to 197 of the judgment under appeal in so far as it relates to the relationship between NTRP and SEPCO, since the General Court considered in those paragraphs that the plea of the applicants at first instance, alleging a manifest error of assessment concerning the application of the first paragraph of Article 2(10) of the basic regulation, was not independent of the plea put forward by those applicants at first instance of a manifest error of assessment concerning the application of Article 2(10)(i) of that regulation.

87. Niko Tube and NTRP submit that the General Court has exercised a correct degree of control over the assessments made by the institutions, without substituting its own assessment for that of the latter. It merely checked whether the requirements of Article 2(10)(i) of the basic regulation had been complied with and whether the facts had been properly assessed.

88. Moreover, in their view, it is clear that the General Court took into consideration and evaluated all the arguments of the Council and the Commission and the available information provided by the parties before concluding that the institutions had committed a manifest error in that they had not presented sufficient evidence that SEPCO had operated as an agent working on a commission basis in connection with transactions involving pipes manufactured by NTRP. Moreover, Niko Tube and NTRP argue that the institutions cannot properly consider that the fact that a sales company which is related to or under the common control of an exporting producer sells the product concerned in the European Union is sufficient to conclude automatically that the company carries out functions comparable to those of an agent. If that were the case, it would have been sufficient for Article 2(10)(i) of the basic regulation to state that a trader’s mark-up can be the subject of an adjustment. However, that is rightly not the case, as the General Court ruled.

89. Those companies add that the General Court was perfectly justified in concluding that the institutions had committed a manifest error of assessment in applying the first paragraph of Article 2(10) of the basic regulation. As such, the adjustment maintained or created an asymmetry as contemplated by the General Court in paragraph 195 of the judgment under appeal.

e) (b) Analysis

90. Before examining the nub of these grounds of appeal put forward by the appellants in the main appeals, which relates to the scope of the judicial review carried out by the General Court, it is necessary from the outset to reject two ancillary arguments put forward, respectively, by the Commission and the Council concerning the alleged inconsistency in the reasoning of the General Court and the alleged failure of the latter to take into account the additional reasons given by the Council during the proceedings at first instance.

91. On the first point, there is clearly no substance to the criticism that the judgment under appeal is vitiated by contradictory reasoning in that the General Court noted, first, in particular in paragraph 184 of that judgment, that the reasons set out in the fax from the Commission of 26 June 2006 does not constitute evidence sufficient to justify the adjustment made pursuant to Article 2(10)(i) of the basic regulation and, secondly, in paragraph 213 the same judgment, that that fax provided a detailed statement of the reasons why that adjustment had been made. While paragraph 184 of the judgment under appeal is concerned with the examination of the merits of the reasons put forward in the fax of 26 June 2006, that is to say, the substantive legality of the contested regulation, paragraph 213 of that judgment merely held that the Commission had fulfilled, in particular in that fax, the obligation to state clearly and unequivocally the reasons which had led to the adjustment at issue, that is to say compliance with an essential procedural requirement. ( 17 ) Moreover, paragraph 213 of the judgment under appeal relates specifically to the examination of a plea alleging infringement of the obligation to state reasons.

92. It seems to me that the criticism made by the Council that the General Court disregarded the additional explanations — additional to the three reasons contained in the fax from the Commission of 26 June 2006 — which the Council had provided during the proceedings at first instance is also unfounded.

93. First of all, since the Council’s argument must be interpreted as a complaint that the General Court did not take into consideration explanations subsequent to the sending of the fax of 26 June 2006 and the adoption of the contested regulation dated the following day, and which were, moreover, new in relation to the reasons contained in that fax and in that measure, such an argument should clearly be rejected. Indeed, it would be tantamount to criticising the General Court for having refused to allow the institution to substitute a new statement of reasons for the initial statement of reasons resulting from the fax of 26 June 2006 and the wording of the contested measure. The General Court cannot, without erring in law, allow in the course of the proceedings an institution to replace the grounds for the measure contested before the General Court with new grounds. ( 18 )

94. Then, provided that the Council’s argument must be interpreted as criticising the General Court for having disregarded additional explanations detailing the reasons which led to the adjustment made pursuant to Article 2(10)(i) of the basic regulation, it should be pointed that the Council merely refers generally to a dozen or so paragraphs in its pleadings at first instance without identifying sufficiently clearly which explanations have been disregarded by the General Court. ( 19 ) In any event, it must be noted that the General Court, at the very least, actually took into account the essential considerations set out by the Council during the proceedings at first instance to justify the adjustment made pursuant to Article 2(10)(i) of the basic regulation. Thus, in paragraph 185 of the judgment under appeal, the General Court addressed the argument, briefly developed in the Council’s pleadings, concerning the direct sales destined for the new Member States carried out by Niko Tube and NTRP. Similarly, the General Court examined, in paragraph 186 of that judgment, the role of SPIG in sales destined for the European Union, an argument on which the Council insisted in its defence at first instance, and, in paragraph 187 of the judgment under appeal, the ties that Niko Tube and NTRP maintained with SEPCO, on each occasion referring either to the submissions of the parties during the proceedings at first instance or to the documents in the case put before the General Court by the parties.

95. I therefore propose that those two arguments, relied on by the Commission and the Council respectively, should be rejected.

96. I now come to the essential issue raised by these grounds of the main appeals, which are concerned with the scope of the review exercised by the General Court over the assessments made by the Commission and Council.

97. Primarily, it is important to point out that, in the judgment under appeal, the General Court first recalled, in paragraph 182 of that judgment, the three factors on which the institutions based their conclusion that SEPCO carried out functions comparable to those of an agent working on a commission basis, within the meaning of Article 2(10)(i) of the basic regulation.

98. As to the first factor, namely Niko Tube and NTRP’s carrying out direct sales of the product concerned in the Community, the General Court, in paragraph 185 of the judgment under appeal, pointed out that a single economic entity may exist where the producer assumes some of the sales functions complementary to those of the distribution company for its products. After having noted that it was clear from the parties’ pleadings that the direct sales in the Community had been destined for the new Member States during a transitional phase and that the volume of direct sales represented only 8% of the total sales volume towards the Community, the General Court found that Niko Tube and NTRP had assumed only sales functions that were complementary to those of SEPCO for a transitional period only.

99. Regarding the second factor, which concerned the fact that SPIG, the connected sales company in Ukraine, intervened as a sales agent for sales carried out by Niko Tube and NTRP to SEPCO, the General Court pointed out, in paragraph 186 of the judgment under appeal, that the Council did not in any way explain how SPIG’s receiving a commission on the sales of Niko Tube and NTRP to SEPCO is supposed to demonstrate that SEPCO carried out functions comparable to those of an agent working on a commission basis or prevents recognition of its status as Niko Tube and NTRP’s internal sales department.

100. As to the third factor, according to which SEPCO’s connections with Niko Tube and NTRP were insufficient and do not support the conclusion that SEPCO is under Niko Tube and NTRP’s control or that there was a control common to SEPCO and to Niko Tube and NTRP, the General Court pointed out, in paragraph 187 of the judgment under appeal, that the evidence on file showed that SEPCO and NTRP were linked by a common parent company, which held 100% of SEPCO’s capital and 24% of NTRP’s capital during the investigation period. Accordingly, the General Court found that that was a fact which, if corroborated by other relevant factors, might contribute to establishing that there was a control common to SEPCO and NTRP and which, in any event, did not demonstrate the insufficiency of the links between SEPCO and NTRP. On the other hand, the General Court held, in paragraph 188 of the judgment under appeal, that the evidence on file did not demonstrate that SEPCO was under the control of Niko Tube or that there was a control common to both companies.

101. Accordingly, the General Court considered that the factors put forward in the fax of 26 June 2006 to justify the adjustment under Article 2(10)(i) of the basic regulation could not be regarded as ‘sufficiently convincing’ and could not therefore be regarded as evidence establishing the existence of the factor on the basis of which the adjustment was made and enabling its impact on price comparability to be determined (paragraph 184 of the judgment under appeal). It therefore accepted the limb of the plea at first instance claiming a manifest error of assessment in applying that article of the basic regulation in so far as the adjustment had been made on the export price charged by SEPCO, in the context of transactions concerning pipes manufactured by NTRP, and rejected that limb in so far as it concerned the adjustment of the export price charged by SEPCO, in the context of transactions concerning pipes manufactured by Niko Tube (paragraphs 188 and 190 of the judgment under appeal).

102. The Council and the Commission consider that, by acting in that way, the General Court has encroached on their broad discretion and that it has therefore exceeded the limits of its judicial review.

103. In that connection, it is true that the Court has held that, in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the EU institutions enjoy a broad discretion by reason of the complexity of the economic, political and legal situations which they have to examine. ( 20 )

104. Furthermore, it is also apparent from the case-law that judicial review of an appraisal of complex economic situations is limited to verifying whether relevant procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers. ( 21 ) When conducting that restricted review of complex economic situations, the EU Courts therefore cannot substitute their own economic assessment for that of the EU institutions. ( 22 )

105. However, as the Court pointed out in the context of competition law and State aid, fields which, as in the field of measures to protect trade, give rise to complex economic assessments, the broad discretion enjoyed by the institutions does not mean that the EU Courts must refrain from reviewing the ‘interpretation’ by those institutions of information of an economic nature. ( 23 )

106. Indeed, according to that case-law, not only must the EU Courts, inter alia, establish whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it. ( 24 )

107. The case-law therefore draws, in that context, a distinction between what the EU Courts are prohibited from doing, namely substituting their own economic assessment for that of the institutions, and what they are allowed to do, that is to say checking the legal classification that the institutions have placed on economic factors. ( 25 ) The issue is therefore the dichotomy between, first, the assessment of facts of an economic nature carried out by the institutions, the judicial review of which precludes a new independent assessment by the courts and must be confined to establishing a manifest error and, secondly, the legal classification of the facts which is subject, as a point of law, to full review by the EU Courts.

108. In the present case, it is certainly true, as the Commission pleads, that the General Court did not consider the case-law according to which the scope of its review over complex economic assessments undertaken by the institutions, such as those at issue in the present grounds of the main appeals, is limited.

109. However, that omission cannot in itself constitute conclusive evidence that the General Court exceeded the scope of its review.

110. In actual fact, even if the statement of reasons for the judgment under appeal is not free from all criticism, I consider that the Council and the Commission are mistaken as to the substance of the review which was carried out by the General Court.

111. The General Court did not conduct an independent new assessment of the facts, as the Council and the Commission complain that it did, but merely examined, as it was entitled to do in the light of the case-law referred to in points 105 and 106 above, whether the three reasons set out in the fax of 26 June 2006 supported the institutions’ conclusion that SEPCO carried out functions comparable to those of an agent working on a commission basis and therefore justified the adjustment made pursuant to Article 2(10)(i) of the basic regulation as, in essence, the second sentence of paragraph 184 of the judgment under appeal emphasises.

112. That seems particularly clear to me as regards the review carried out by the General Court concerning the second and third factors listed in the fax of 26 June 2006. With regard thereto, the General Court, in essence, merely noted, respectively, first, that the Council did not provide sufficient explanations regarding the impact of the intervention by SPIG on the classification of SEPCO as carrying out functions comparable to those of an agent working on a commission basis and, secondly, that the relationship between SEPCO and NTRP within a common parent company did not demonstrate, as the institutions claimed, the insufficiency of the links between those two companies so as to preclude the existence of a single economic entity, as Niko Tube and NTRP had argued during the administrative procedure and before the General Court.

113. Admittedly, the examination by the General Court of the first factor concerning the existence of sales made directly by Niko Tube and NTRP to the European Union, which, according to the institutions, was evidence showing that SEPCO was not acting as an integrated export sales service for those companies, might, prima facie, qualify, at least in part, my assessment. The General Court, by stating, in paragraph 185 of the judgment under appeal, on the basis of the information produced by the parties before it, that Niko Tube and NTRP assumed only sales functions that were complementary to those of SEPCO for a transitional period only (which may suggest the existence of a single economic entity), appears to have carried out its own assessment of factors of an economic nature which were the subject of dispute during the proceedings.

114. Although the wording of the last sentence of paragraph 185 of the judgment under appeal may lead to criticism, the argument which is set out in that paragraph of the judgment undoubtedly also forms part of the examination, referred to in paragraph 184 of that judgment, of whether the conclusions reached by the institutions as to the functions exercised by SEPCO are substantiated. In the final analysis, in conducting its analysis in paragraph 185 of the judgment under appeal, the General Court pointed out that the inference made by the institutions concerning the existence of direct sales by Niko Tube and NTRP was so incorrect that, in the light of the undisputed information, they should have reached the opposite conclusion.

115. Consequently, the General Court has not, in my view, substituted its own economic assessment for that of the institutions. On the contrary, it has carried out a review of the legal classification of the economic data by those institutions and found that the three factors set out in the fax of 26 June 2006 did not constitute evidence supporting their conclusion that SEPCO met the requirements allowing application of the adjustment pursuant to Article 2(10)(i) of the basic regulation, at least with regard to the transactions concerning pipes produced by NTRP.

116. Finally, I am also of the view that the General Court did not err in law when it ruled, in paragraph 195 of the judgment under appeal, in the context of Niko Tube and NTRP’s plea concerning the application of the first paragraph of Article 2(10) of the basic regulation, that, in so far as the adjustment pursuant to Article 2(10)(i) of that provision had been incorrectly made as regards the transactions carried out by SEPCO concerning pipes produced by NTRP, that implied that that adjustment had maintained or created an asymmetry between the normal value and the export price. The maintenance or introduction of such asymmetry affects the requirement, set out in the first paragraph of Article 2(10) of the basic regulation, to make a fair comparison between the normal value and the export price.

117. I therefore suggest that the grounds of the main appeals alleging infringement of the limits of judicial review should be rejected.

B – The third ground of the cross-appeal, alleging errors of law committed in the application of Article 2(10)(i) of the basic regulation in respect of transactions carried out by SEPCO concerning pipes produced by Niko Tube

1. Arguments of the parties

118. Niko Tube and NTRP argue that the General Court erred in law when it, in essence, confirmed, in paragraphs 187 to 190 of the judgment under appeal, that SEPCO had acted as an agent working on a commission basis with respect to transactions concerning pipes produced by Niko Tube. According to those companies, the fact that the shareholding relations were not the same between SEPCO and Niko Tube as those between SEPCO and NTRP does not mean in law that SEPCO exercised the functions of an agent working on a commission basis in its relations with Niko Tube. Contrary to the finding of the General Court, control may also exist even if the two companies at issue do not have the same final beneficiaries (‘ultimate beneficiaries’). It is therefore necessary to distinguish between the existence of control and the existence of a company shareholding. Moreover, in the opinion of Niko Tube and NTRP, the mere existence of a buying and selling relationship between an exporter and its related distribution company is not sufficient to treat the margin of the latter company as a commission, within the meaning of Article 2(10)(i) of the basic regulation. In any event, the General Court’s findings concerning the relationship between SEPCO and Niko Tube are incorrect in so far as they rely on facts and reasoning developed after the close of the administrative procedure.

119. In their respective responses to the third ground of the cross-appeal, the Council and the Commission contend that the ground is inadmissible or, at the very least, unfounded. The Council considers that the ground is inadmissible in so far as it could not affect the operative part of the judgment under appeal, since the General Court had already annulled Article 1 of the contested regulation. The Commission, for its part, considers that the arguments put forward in support of the third ground of the cross-appeal are unsubstantiated and insufficiently precise, thereby rendering that ground inadmissible. On the merits, those institutions argue, in essence, that Niko Tube and NTRP ought to have identified the evidence on the file which demonstrated that SEPCO was under the control of Niko Tube or that there was a control common to both those companies. Without such evidence, the General Court rightly rejected the plea put forward at first instance.

2. Analysis

120. Without there being any need, in my view, to rule on the admissibility of the plea, it seems to me, in any event, to be unfounded.

121. First of all, Niko Tube and NTRP misread the judgment under appeal when they claim that it held that control could not exist if SEPCO and Niko Tube have the same final beneficiaries. Indeed, it should be noted that, in paragraphs 188 to 189 of the judgment under appeal, the General Court merely ascertained whether, as Niko Tube and NTRP claimed and in the light of the ‘evidence on file’, SEPCO was controlled by Niko Tube or whether they were both subject to common control by reviewing the capital structure of those companies, that factor being, as the General Court correctly pointed out in paragraph 179 of the judgment under appeal, an indicator of the existence of a single economic entity. The General Court therefore did not rule that control, in particular common control, could exist only if the two companies in question had the same ‘final beneficiaries’.

122. The view that the General Court found that the mere existence of a buying and selling relationship between an exporter and its related distribution company suffices for the margin of the latter to be treated as a commission also stems from a misinterpretation of paragraph 187 of the judgment under appeal. Apart from the fact that the passage of that paragraph of the judgment under appeal states that such a relationship has no relevance in demonstrating that SEPCO carries out functions comparable to those of an agent working on a commission basis, it relates not to the transactions carried out by SEPCO for Niko Tube, but to those carried out by that company for NTRP.

123. In fact, the reasons which led to the rejection of the argument of the applicants at first instance are based not on whether or not a buying and selling relationship existed between the producer and the distribution company, but on the absence of conclusive evidence of any control by Niko Tube over SEPCO or of common control over those two companies. In that regard it is important to note that Niko Tube and NTRP have not stated which evidence on file the General Court distorted or failed to take into consideration which could have cast doubt on its finding, set out in paragraphs 188 and 189 of the judgment under appeal, that, in essence, the fact that Niko Tube and NTRP had three common shareholders, including the parent company of NTRP, did not demonstrate that SEPCO was under the control of Niko Tube or that there was a control common to both companies, but merely established the existence of an indirect connection between those latter two companies.

124. The mere fact, noted in footnote 47 of the cross-appeal, that the General Court failed to respond to the argument that SEPCO’s representatives were present during the on-the-spot checks at the premises of Niko Tube during the investigation procedure is not likely to call into question that analysis. Indeed, as the Council rightly pointed out in its response to the cross-appeal, that fact only demonstrates that both the companies in question cooperated during the investigation, as is actually expected from two related companies, but cannot show that Niko Tube controlled SEPCO or that there was common control over those two companies.

125. Finally, Niko Tube and NTRP have also failed to indicate on what new evidence the General Court based its decision to reject, in part, their plea put forward at first instance. In that regard, Niko Tube and NTRP cannot criticise the General Court for allowing them, during the proceedings, to support their claims, even though, as I indicated in the preceding point of this Opinion, those companies remain unable, at the appeal stage, to indicate precisely what conclusive evidence in the file the General Court failed to take into account when it, in essence, confirmed the assessment of the institutions that the links between SEPCO and Niko Tube were insufficient to consider that there existed a control common to those two companies or that Niko Tube exercised control over SEPCO, a prerequisite for the existence of a single economic entity between those two related companies, which would have deprived those institutions of the possibility of making the adjustment pursuant to Article 2(10)(i) of the basic regulation.

126. Accordingly, I propose that the third ground of the cross-appeal, alleging errors of law committed in the application of Article 2(10)(i) of the basic regulation in respect of transactions carried out by SEPCO concerning pipes produced by Niko Tube, should be rejected.

C – The grounds of the main appeals alleging errors of law in the finding of an infringement of the applicants’ defence rights at first instance in the context of the adjustment made pursuant to Article 2(10)(i) of the basic regulation

1. Arguments of the parties

127. The Council and the Commission identify three errors of law vitiating the General Court’s finding which led it to rule that the rights of defence of Niko Tube and NTRP, in the context of the adjustment made pursuant to Article 2(10)(i) of the basic regulation, had been infringed.

128. First, those institutions consider that the General Court, in paragraph 201 of the judgment under appeal, interpreted too strictly the disclosure requirements placed on them. In particular, they consider that it is disproportionate to require the Commission in all cases to inform the exporter not only of the legal basis used to make an adjustment but also the reasons that led to that adjustment. However, by failing to check, in the present case, whether a simple communication of the legal basis for the adjustment was sufficient for the purpose of the actual exercise of the rights of defence of the companies in question, the General Court erred in law. According to the Commission, the General Court confused the obligation to state full reasons which is placed on the institutions when adopting the act in question with the obligation to communicate, during the administrative or investigation procedure, sufficient information to allow operators to exercise their rights of defence. The Commission adds that the content of the letter of 4 May 2006 from the applicants at first instance, briefly referred to in paragraph 204 of the judgment under appeal, shows that the latter had fully understood the reasons why the Commission intended to make the adjustment at issue.

129. Secondly, the Council criticises the General Court for not having properly examined, in paragraph 209 of the judgment under appeal, whether, following the late communication of the three factors listed in the fax from the Commission of 26 June 2006, Niko Tube and NTRP had actually been deprived of the opportunity to put forward arguments or make observations which could have caused the administrative procedure to have a different result. According to the Council, the General Court should have examined whether Niko Tube and NTRP had been deprived of the opportunity to present new arguments on account of the late communication of the fax of 26 June 2006 and which they actually put forward before the General Court. If the General Court had properly applied that criterion, it would have found that the arguments relied on before it were, in essence, identical to those presented in the procedure before the Commission prior to receipt of the fax of 26 June 2006.

130. Thirdly, in so far as paragraphs 185 to 188 of the judgment under appeal are vitiated by several errors of law on the part of the General Court, the Council argues that the General Court also wrongly upheld, in paragraph 211 of that judgment, the plea claiming infringement of the rights of defence of Niko Tube and NTRP, in so far as it concerned the adjustment made pursuant to Article 2(10)(i) of the basic regulation. It adds that, in any event, the General Court committed an error of logic concerning Niko Tube, since the absence of an infringement of the rights of defence of that company could not have led to a different result than that which the General Court confirmed in paragraph 189 of the judgment under appeal. More generally, the Commission considers that the General Court could not, in paragraph 209 of the judgment under appeal, merely refer to its finding as to the substance to support the conclusion that the applicants at first instance had established that their rights of defence had been disregarded.

131. Niko Tube and NTRP ask the Court to reject the grounds put forward by the Council and Commission.

132. They submit, first of all, that the General Court was right not to be satisfied with a simple reference to the legal basis for the adjustment at issue in order to ascertain whether the institutions had fulfilled their obligation to observe the rights of the defence. In particular, those companies point out that the actual examination carried out by the General Court fulfils the requirements laid down by the case-law and cannot be regarded as too strict. Although Niko Tube and NTRP argued, in the letter of 4 May 2006 in response to the second disclosure document sent by the Commission, that the activities of SEPCO were not comparable to those of an agent working on a commission basis, they none the less did not know whether and on what basis the Commission could classify that company as an agent. Those companies were clearly unable to respond to the specific arguments set out in the fax of 26 June 2006, which, as the General Court has already rightly ruled, constituted during the administrative stage the first statement of the reasons on which the institutions based their decision to conclude that it was necessary to make the adjustment at issue.

133. Then, according to Niko Tube and NTRP, it was also clear, as the General Court noted, that, contrary to the requirements arising from the case-law, they did not have the opportunity, before the adoption by the Commission of its proposal for the adoption of the contested regulation, effectively to make known their views on the correctness and relevance of the facts and circumstances alleged which led to the adjustment ultimately made by the institutions.

134. They also assert that the legal criterion proposed by the Council for the purpose of checking whether the procedural irregularity committed by the institutions could have had an impact on the conclusion reached by the latter, by comparing the arguments put forward by Niko Tube and NTRP before the disclosure of the statement of reasons contained in the fax of 26 June 2006 and those put forward after that disclosure, disregards the limited level of review exercised by the General Court over evidence. The General Court was right merely to establish that the administrative procedure could have led to another result if the applicants at first instance had had the opportunity in the course of that procedure to submit observations on the reasons which led to the adjustment.

135. Finally, with regard to the Council’s argument based on the alleged inconsistency affecting the General Court’s reasoning relating to the infringement of the rights of defence of Niko Tube, the latter and NTRP argue that it is not because the General Court concluded in the proceedings that there was no evidence that SEPCO was controlled by Niko Tube that the rights of the defence of the latter were infringed. Those companies take the view that, if Niko Tube had been informed in good time of the reasons for the adjustment at issue, it could have focussed its arguments on those reasons during the administrative procedure and influenced its result.

2. Analysis

136. As a preliminary point, I would like to point out, as the General Court pointed out in paragraph 64 of the judgment under appeal to which it referred in paragraph 201 of that judgment, that Article 20 of the basic regulation grants, inter alia, to complainants, importers and exporters and their representative associations, and to representatives of the exporting country the right to request final disclosure of the essential facts and considerations on the basis of which it is intended to recommend the imposition of definitive measures.

137. It is also clear from the case-law referred to by the General Court that the undertakings concerned should have been placed in a position during the administrative procedure in which they could effectively make known their views on the correctness and relevance of the facts and circumstances alleged and on the evidence presented by the Commission in support of its allegation concerning the existence of dumping and the resultant injury. ( 26 )

138. I note that, in paragraph 203 of the judgment under appeal, the General Court pointed out, and the Council and the Commission did not dispute, that in the second disclosure document, dated 24 April 2006, the Commission had informed Niko Tube and NTRP that, concerning sales towards the Community in which SEPCO was an intermediary, the adjustment made had in fact been carried out pursuant to Article 2(10)(i) of the basic regulation, and not pursuant to Article 2(9) thereof, as had been erroneously stated in the first disclosure document. The General Court also noted that although the Commission had stated in that document that the amount of the deduction made remained unchanged, the Commission did not supply any justification as to why Article 2(10)(i) of the basic regulation was applicable in this case.

139. Moreover, neither the Council nor the Commission challenge the General Court’s ruling in paragraph 201 of the judgment under appeal that information concerning the adjustment and the reasons why it was made was essential, since such an adjustment directly affected the level of the anti-dumping duty.

140. Accordingly, the institutions are, in my opinion, incorrect to complain that the General Court has, in essence, required the Commission to inform Niko Tube and NTRP during the administrative procedure not only of the fact that that institution considered that an adjustment should be made pursuant to Article 2(10)(i) of the basic regulation, but also of the reasons justifying such an adjustment, that is to say, in particular, the circumstances and evidence put forward by the Commission to support its assessment.

141. Those circumstances and that evidence having been held to be essential, they should therefore have been communicated at a time when the applicants at first instance could still effectively make known their views, in particular, on their relevance, before the adoption of the contested regulation. However, as the General Court found, it was only in its fax of 26 June 2006, that is on the eve of the adoption of the contested regulation, that the Commission communicated to the companies concerned the precise reasons which led, according to the Commission, to the adjustment made pursuant to Article 2(10)(i) of the basic regulation.

142. However, as the General Court also rightly pointed out in paragraph 208 of the judgment under appeal, the procedural irregularity committed by the Commission was not capable of constituting an infringement of the rights of defence of the applicants at first instance, justifying annulment of the contested regulation, unless the latter had established, not that the contested regulation would have had a different content but simply that such a possibility could not be totally ruled out, so that those applicants would have been better able to defend themselves in the absence of that procedural irregularity. ( 27 ) In other words, Niko Tube and NTRP had to establish that there was a possibility that the administrative procedure could have had a different result in the absence of that irregularity, such an irregularity thus having a specific adverse effect on their rights of defence. ( 28 )

143. Without calling into question that case-law, the Commission considers that the General Court did not specifically determine, having regard to the arguments put forward before it, which evidence the applicants at first instance were prevented from communicating on account of the delay in sending the fax of 26 June 2006.

144. I consider that that criticism must be rejected.

145. In that regard, I would observe that, in paragraph 209 of the judgment under appeal, the General Court stated, with regard to the three factors on which the Commission based its reasoning in concluding that SEPCO carried out functions comparable to those of an agent working on a commission basis, that ‘[i]t has been shown in paragraphs 185 to 188 [of the judgment under appeal], on the basis of the arguments put forward by the applicants during the procedure before the Court of First Instance, that those three factors could not be regarded as sufficient evidence that, first, SEPCO carries out functions comparable to those of an agent working on a commission basis, and, second, that SEPCO and NTRP do not constitute a single economic entity. Therefore, it must be concluded that the applicants have established that an earlier communication of the factors contained in the fax of 26 June 2006 would have enabled them to make that same demonstration before the adoption of the contested regulation and, by so doing, support the assertion that the Commission did not have any tangible evidence allowing it to proceed with the adjustment at issue’. ( 29 )

146. As evidenced by that paragraph of the judgment under appeal, which refers to the substantive judicial review carried out in paragraphs 185 to 188 of that judgment, where, as I have already emphasised, the arguments and evidence put forward in the course of the proceedings are referred to on several occasions, the General Court actually based its reasoning, at least in part, on the evidence brought before it by the applicants at first instance to determine whether the procedural irregularity attributed to the Commission in fact adversely affected their right to express their views during the administrative procedure.

147. However, I consider that the General Court vitiated its judgment, in particular paragraph 209 read in conjunction with paragraphs 188 to 190, by contradictory reasons and an inadequate statement of reasons as regards the finding that Niko Tube’s rights of defence were infringed.

148. Indeed, the General Court cannot, in my view, reject the merits of the plea of the applicants at first instance regarding the adjustment of the export price charged by SEPCO, in the context of transactions concerning pipes manufactured by Niko tube, by taking into account in particular the arguments presented in the course of the proceedings by the applicants at first instance and, at the same time, consider that those arguments could, if they had been put forward in the context of the administrative procedure in the absence of the Commission’s procedural irregularity, have led to a result other than that at which the institutions arrived.

149. In any event, in the light of the rejection on the merits of the limb of the plea of the applicants at first instance put forward in support of annulment of the contested regulation in so far as it related to the adjustment to the export priced charged by SEPCO, in the context of the transactions concerning pipes manufactured by Niko Tube, the General Court could not, in assessing the infringement of the rights of defence of the latter company, merely refer to substantive pleas not specifically concerning Niko Tube. The General Court instead had to explain why, in spite of the rejection of that limb, the arguments put forward before it by the applicants at first instance could, had they been communicated during the administrative procedure, have caused the administrative procedure to have a different result than that which the institutions reached. By failing to explain those reasons, the General Court has, in my view, given inadequate reasons for its conclusion, set out in paragraph 209 of the judgment under appeal, that, in essence, the applicants at first instance had established that an earlier communication of the factors contained in the fax of 26 June 2006 would have allowed them to substantiate their claim, before the adoption of the contested regulation, that the Commission had no tangible evidence to enable it to make the adjustment at issue in so far as it concerned Niko Tube.

150. That finding does not seem to me to be invalidated by the consideration that some of the arguments set out in paragraphs 185 and 186 of the judgment under appeal relate both to NTRP and to Niko Tube.

151. Indeed, in so far as, implicitly but necessarily, the General Court did not consider, as regards its finding as to the merits of the plea of the applicants at first instance relating to the adjustment at issue, that those arguments could, in themselves, prevail over the upholding of that plea and therefore the annulment of the contested regulation, in so far as that adjustment related to export sales made by SEPCO of pipes manufactured by Niko Tube, I do not see how, and without specific reasons being given by the General Court, the fact that those arguments could have been relied on during the administrative procedure could in practice have provided the applicants at first instance with the opportunity of ensuring that the administrative procedure had a different result.

152. In that regard, and as already implicitly follows from the assessment set out in point 146 above, NTRP and Niko Tube are wrong, in my view, to claim that the General Court, in the context of ascertaining whether the rights of defence of those companies have been infringed, cannot, without going beyond the scope of its marginal review, consider the new arguments which they have put forward before it.

153. In the same way as any argument in support of an action for annulment, it is incumbent on the applicant to adduce evidence of a claim alleging infringement of his procedural rights. However, since the case-law requires that a specific effect on the rights of the defence must be established for it to be possible to uphold a plea on that ground and, accordingly, to annul an act of the European Union, it is for the applicant who relies on such a plea for annulment directed against the legality of such an act to state in sufficient detail the arguments which he would have put forward in the absence of the alleged procedural irregularity and which are different from those already presented during the administrative procedure before the alleged irregularity was committed. Only by carrying out such an examination can the General Court properly determine whether the procedural irregularity at issue in fact adversely affected the applicant’s rights of defence. ( 30 ) That examination in no way exceeds the scope of the review carried out by the EU Courts. On the contrary, to my mind it forms part of the complete examination of a possible infringement, by the EU institutions, of the fundamental principle of EU law of respect for the rights of the defence in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person. ( 31 )

154. The same considerations justify the rejection of the Commission’s generic argument that the General Court could not, in paragraph 209 of the judgment under appeal, refer to its arguments concerning the examination as to the merits of the adjustment at issue. In so far as that criticism relates to NTRP, the reference made in paragraph 209 of the judgment under appeal had no other purpose than to show that, if NTRP had had the opportunity during the administrative procedure to communicate the evidence that it adduced during the proceedings before the General Court, referred to in paragraphs 185 to 187 of the judgment under appeal, it would have been better placed to ensure the exercise of its rights of defence.

155. In the light of those considerations, I propose that the appeal brought by the Council should be upheld in part and that the judgment of the General Court should be set aside to the extent that it upheld the sixth plea of the applicants at first instance, alleging infringement of Niko Tube’s rights of defence, in so far as it concerned the adjustment made to the export price charged by SEPCO, in the context of transactions concerning pipes manufactured by Niko Tube, pursuant to Article 2(10)(i) of the basic regulation.

156. However, since the main appeal brought by the Commission against the judgment under appeal does not rely on the same ground as that put forward by the Council, which I propose should be upheld, I suggest that the Commission’s appeal should be dismissed in its entirety.

157. It is therefore now necessary to consider the two grounds in support of the cross-appeal of Niko Tube and NTRP relating to the findings of the General Court other than those relating to the adjustment made pursuant to Article 2(10)(i) of the basic regulation.

D – The first two grounds of the cross-appeal brought by Niko Tube and NTRP

158. Apart from the third ground already examined, in their cross-appeal Niko Tube and NTRP raise two other pleas alleging errors of law committed by the General Court in its examination of, respectively, the calculation of normal value and the determination of the injury caused to the EU industry.

1. The first ground of the cross-appeal, alleging errors of law which allegedly vitiated the General Court’s examination of the calculation of normal value

159. Before examining this ground of the cross-appeal, which is divided into five limbs, it seems to me to be useful to bear in mind the essential background to the dispute relating to the exclusion of atomic pipes falling under PCN KE4 forming the subject-matter of this plea.

a) Essential background to the dispute concerning the exclusion of atomic pipes falling under PCN KE4

160. In the course of its investigation, the Commission provided a definition of the product concerned (seamless pipes and tubes) explained in the questionnaire sent to interested parties. In that questionnaire, it also state that, for the purposes of making a fair comparison of prices of the product concerned, it had decided to use a classification system for the product called ‘PCN’, consisting of a six-symbol code (for example, PCN JB21YN), based, inter alia, on the customs classification and on the specific physical and technical properties (diameter, thickness) of the seamless pipes and tubes concerned. The wording of that questionnaire emphasised the fact that interested parties should use the product control numbers throughout their reply in a rigorously accurate and consistent manner.

161. In its June 2005 reply to the questionnaire, SPIG provided, transaction by transaction, a detailed list of its sales carried out in Ukraine and a list of its suppliers. However, SPIG did not use the six-symbol system recommended by the Commission in its questionnaire, but a simplified system of three symbols. The list of sales sent by SPIG included six transactions involving the KE4 code. NTRP appeared on the list as the sole supplier of pipes falling under PCN KE4. The Commission relied on that list, checked on the spot, to calculate the normal value.

162. In their correspondence with the Commission following the first disclosure document, Niko Tube and NTRP argued that pipes falling under PCN KE4 should be excluded from the calculation because they did not relate to the product concerned or, in any event, had not been manufactured by them.

163. In the second disclosure document, adopted on 24 April 2006, the Commission rejected the request to exclude products falling under PCN KE4 from the calculation of normal value. That document stated that the Commission had taken note of the comments regarding national sales classified under PCN KE4 but that it could not check the new information that Niko Tube and NTRP had provided.

164. Those companies reiterated their request for exclusion in their reply, dated 4 May 2006, to the second disclosure document. In that reply, it was stated that the Interpipe Group manufactured none of the pipes falling under PCN KE4 or, in particular, the 63.1 tonnes of seamless pipes and tubes falling under technical standard TU 14-3P-197-2001. That reply also stated that it was apparent from the various lists of sales sent to the Commission that, for those seamless tubes and pipes, the Interpipe Group acted only as a distributor and that the pipes classified under PCN KE4 were manufactured only by NTRP.

165. The Commission again rejected the request for exclusion in its fax of 26 June 2006, on the ground, inter alia, that the data relating to those pipes could not be regarded as providing a sufficient level of certainty, in the absence of a new on-the-spot check, considered too burdensome to organise at an advanced stage of the administrative procedure.

166. In their action for annulment of the contested regulation, Niko Tube and NTRP argued that the institutions had committed a manifest error of assessment by including in the calculation of normal value, and therefore the dumping margin, data on pipes falling under PCN KE4 and the technical standard TU 14-3P-197-2001, and that they had infringed the principle of non-discrimination, the rights of the defence and the obligation to state reasons.

167. All those pleas in law were rejected by the General Court.

168. As regards the examination of the manifest error of assessment complained of by the applicants at first instance, which also included a breach of the duty of diligence, the General Court checked whether the information submitted by the applicants at first instance to the Commission during the investigation was sufficient for it to be concluded that they did not produce the atomic tubes falling under PCN KE4, with the result that the Commission failed to examine, with care and impartiality, all the relevant aspects of the case and made a manifest error of assessment by holding that those aspects had to form the subject-matter of a fresh on-the-spot check at the premises of the applicants at first instance.

169. As part of that examination, the General Court found, first of all, in paragraph 45 of the judgment under appeal, that the applicants at first instance had never entered the norm TU 14-3P-197-2001 in their list of national and export sales, which was an indication that they had not sold those atomic pipes, even to SPIG. Moreover, the General Court noted that the lists of production costs of the applicants at first instance showed that the products mentioned in those lists were not manufactured pursuant to that norm.

170. However, the General Court also noted that SPIG’s list of sales on the national market referred to six transactions concerning pipes falling within PCN KE4 and manufactured pursuant to the above technical norm. In paragraph 48 of the judgment under appeal, the General Court added that the list of suppliers and purchases of SPIG mentioned a single supplier for pipes falling within PCN KE4, namely NTRP. However, that list should show only suppliers whose products had been resold in the European Union. In so far as the evidence on file confirmed that the pipes falling under code PCN KE4 and the technical norm TU 14-3P-197-2001 had been resold on the Ukrainian market and that all the pipes falling under that code, but not that technical norm, produced by NTRP had been resold, by SPIG, on the Community market, the General Court inferred that SPIG did not commit any error by making no mention, in its list of suppliers and purchases, of a supplier other than NTRP for pipes falling under PCN KE4.

171. However, the General Court noted, in paragraph 49 of the judgment under appeal, that the fact, first, that SPIG’s list of national sales mentioned transactions concerning pipes falling within PCN KE4 and technical norm TU 14-3P-197-2001 and, secondly, that the list of suppliers and purchases of SPIG referred only to a single supplier for pipes falling under PCN KE4 may have been a source of confusion for the Commission officials charged with the investigation. It therefore inferred, in paragraphs 50 and 51 of the judgment under appeal, that at the conclusion of a diligent assessment of the questionnaire replies sent by the applicants at first instance and SPIG, their affiliated sales company, the Commission had contradictory information, or, at the very least, information the validity of which could be called into question, and that the applicants at first instance had not sought to dissipate the Commission’s doubt in the face of those contradictions. In particular, the General Court held that it was for the applicants at first instance to adduce proof that the six transactions in question concerned purchases by SPIG of pipes falling within PCN KE4 and technical norm TU 14-3P-197-2001 from an independent supplier, which they had failed to do. It concluded that the Commission had complied with its obligation to examine, with care and impartiality, all the relevant factors of the case, that the normal value had therefore been determined in a reasonable manner, in accordance with the case-law, and that the Council had not made any manifest error of assessment.

172. As regards the plea alleging an infringement of the principle of non-discrimination in that the Council agreed to exclude from calculation of the dumping margin products not manufactured by the applicants at first instance falling within certain PCN codes, but not the atomic pipes falling within PCN KE4 and technical norm TU 14-3P-197-2001, the General Court held, in paragraphs 59 and 60 of the judgment under appeal, that whereas those latter pipes were produced by NTRP, pipes falling within the other PCN codes did not appear anywhere in the lists of sales and production costs of the applicants at first instance and that, moreover, SPIG’s list of suppliers and purchases mentioned a single supplier concerning PCN KE4, namely NTRP. It therefore rejected that plea.

173. Furthermore, in paragraphs 67 to 69 of the judgment under appeal, the General Court also rejected the pleas alleging infringement of the rights of the defence and of the obligation to state reasons which were relied on by the applicants at first instance.

b) The five limbs of the first ground of the cross-appeal

174. Niko Tube and NTRP submit, first, that the General Court infringed their rights of defence by rejecting their pleas at first instance alleging a manifest error of assessment and an infringement of the principle of non-discrimination. Secondly, they argue that the General Court exceeded the limits of judicial review. Thirdly, Niko Tube and NTRP criticise the General Court for not ruling on a further plea raised at first instance. Fourth, the General Court committed, in their view, a manifest error of assessment of the duty of diligence. Finally and fifthly, it distorted the clear meaning of evidence.

c) The first two limbs, alleging, respectively, an infringement of the rights of the defence and a failure to take account of the limits of judicial review

i) Arguments of the parties

175. Although Niko Tube and NTRP acknowledge that they were in a position during the proceedings at first instance to express their views on the evidence relied on by the General Court, they claim that it infringed their rights of defence by basing its conclusions, in paragraphs 47 to 55 and 59 and 60 of the judgment under appeal, on new evidence in the case which had not been communicated to them during the administrative procedure. Such was the case with the new statement of reasons presented by the Council and the Commission to justify the wrongful exclusion of atomic pipes falling under PCN KE4 from the calculation of the dumping margin, as well as with the new facts put forward supposedly supporting that new statement of reasons, such as the relevance of SPIG’s list of suppliers and purchases, the allegation of the lack of cooperation concerning translation and the alleged lack of evidence regarding the supplier of those atomic pipes. In their second limb, Niko Tube and NTRP point ou