JUDGMENT OF THE GENERAL COURT (Fourth Chamber, Extended Composition)

14 December 2022 ( *1 )

(Subsidies – Imports of biodiesel originating in Indonesia – Implementing Regulation (EU) 2019/2092 – Definitive countervailing duty – Article 3(1)(a) of Regulation (EU) 2016/1037 – Financial contribution – Article 3(2) of Regulation 2016/1037 – Benefit – Article 7(1)(a) of Regulation 2016/1037 – Calculation of the amount of the countervailable subsidy – Article 3(1)(a)(iv) and (2) of Regulation 2016/1037 – Action consisting in ‘entrusting’ or ‘directing’ a private body to carry out a function constituting a financial contribution – Less than adequate remuneration – Income or price support – Article 28(5) of Regulation 2016/1037 – Use of available information – Article 3(2) and Article 6(d) of Regulation 2016/1037 – Benefit – Article 8(8) of Regulation 2016/1037 – Threat of material injury to the Union industry – Article 8(5) and (6) of Regulation 2016/1037 – Causal link – Attribution analysis – Non-attribution analysis)

In Case T‑111/20,

PT Wilmar Bioenergi Indonesia, established in Medan (Indonesia),

PT Wilmar Nabati Indonesia, established in Medan,

PT Multi Nabati Sulawesi, established in North Sulawesi (Indonesia),

represented by P. Vander Schueren and T. Martin-Brieu, lawyers,

applicants,

v

European Commission, represented by P. Kienapfel, G. Luengo and P. Němečková, acting as Agents,

defendant,

supported by

European Biodiesel Board (EBB), established in Brussels (Belgium), represented by M.-S. Dibling and L. Amiel, lawyers,

intervener,

THE GENERAL COURT (Fourth Chamber, Extended Composition),

composed, at the time of the deliberations, of S. Gervasoni (Rapporteur), President, L. Madise, P. Nihoul, R. Frendo and J. Martín y Pérez de Nanclares, Judges,

Registrar: I. Kurme, Administrator,

having regard to the written part of the procedure,

further to the hearing on 13 January 2022,

gives the following

Judgment

1 By their action under Article 263 TFEU, the applicants, PT Wilmar Bioenergi Indonesia, PT Wilmar Nabati Indonesia and PT Multi Nabati Sulawesi, seek annulment of Commission Implementing Regulation (EU) 2019/2092 of 28 November 2019 imposing a definitive countervailing duty on imports of biodiesel originating in Indonesia (OJ 2019 L 317, p. 42; ‘the contested regulation’), in so far as that regulation concerns them.

Background to the dispute

2 The applicants are Indonesian companies that produce biodiesel and export it.

3 On 19 November 2013, the Council of the European Union adopted Implementing Regulation (EU) No 1194/2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of biodiesel originating in Argentina and Indonesia (OJ 2013 L 315, p. 2), which imposed a definitive anti-dumping duty on the applicants.

4 On 25 November 2013, the European Commission adopted Regulation (EU) No 1198/2013 terminating the anti-subsidy proceeding concerning imports of biodiesel originating in Argentina and Indonesia and repealing Regulation (EU) No 330/2013 making such imports subject to registration (OJ 2013 L 315, p. 67).

5 On 15 September 2016, the Court annulled Articles 1 and 2 of Implementing Regulation No 1194/2013 in so far as it concerned the first two of the applicants (judgment of 15 September 2016, PT Wilmar Bioenergi Indonesia and PT Wilmar Nabati Indonesia v Council, T‑139/14, not published, EU:T:2016:499).

6 On 25 January 2018, following a request from the Republic of Indonesia, the World Trade Organization (WTO) Panel issued an anti-dumping report on the anti-dumping measures imposed by Implementing Regulation No 1194/2013 on imports of biodiesel from Indonesia (WTO Panel report entitled ‘European Union – Anti-dumping measures on biodiesel from Indonesia’, adopted on 25 January 2018 (WT/DS 480/R)). The WTO Panel concluded that the European Union had acted in a manner incompatible with several provisions of the General Agreement on Tariffs and Trade (GATT) and the Agreement on Implementation of Article VI of the GATT (OJ 1994 L 336, p. 103), set out in Annex 1A to the Agreement establishing the WTO (OJ 1994 L 336, p. 3).

7 On 22 October 2018, European Biodiesel Board (EBB) lodged a complaint with the Commission pursuant to Article 10 of Regulation (EU) 2016/1037 of the European Parliament and of the Council of 8 June 2016 on protection against subsidised imports from countries not members of the European Union (OJ 2016 L 176, p. 55), as amended by Regulation (EU) 2018/825 of the European Parliament and of the Council of 30 May 2018 (OJ 2018 L 143, p. 1) (‘the basic regulation’). That complaint alleged that imports of biodiesel originating in Indonesia were subsidised and were thereby causing injury to the Union industry.

8 By notice published in the Official Journal of the European Union on 6 December 2018 (OJ 2018 C 439, p. 16), the Commission initiated an anti-subsidy proceeding concerning imports of biodiesel originating in Indonesia.

9 The product subject to the investigation was ‘fatty-acid mono-alkyl esters and/or paraffinic gasoils obtained from synthesis and/or hydro-treatment, of non-fossil origin, commonly known as “biodiesel”, in pure form or as included in a blend, originating in Indonesia’.

10 Biodiesel produced in Indonesia is mainly palm oil methyl ester (‘PME’), which is derived from crude palm oil (‘CPO’). Biodiesel produced in the European Union, by contrast, is mainly rapeseed methyl ester (‘RME’), but it is also produced from other raw materials, including CPO.

11 PME and RME both belong to the category of fatty-acid mono-alkyl esters. The term ‘ester’ refers to the transesterification of vegetable oils, that is to say, the mingling of the oil with alcohol, which produces biodiesel and, as a by-product, glycerine. The term ‘methyl’ refers to methanol, the most commonly used alcohol in the process. Fatty-acid mono-alkyl esters are also known as ‘fatty-acid methyl esters’ (‘FAME’). Although PME and RME are both FAME, they have partially different physical and chemical properties and, in particular, a different cold filter plugging point (‘CFPP’). The CFPP is the temperature at which a fuel will cause a fuel filter to plug due to the crystallisation or jellification of some of its components. For RME, the CFPP can be – 14 °C while for PME it is approximately 13 °C. On the market, biodiesel with a specific CFPP is often described as FAME X, for example FAME 0 or FAME 5.

12 The investigation into subsidisation and injury covered the period from 1 October 2017 to 30 September 2018 (‘the investigation period’). The examination of trends relevant for the purpose of determining injury covered the period from 1 January 2015 to the end of the investigation period. Where appropriate, the Commission also examined post-investigation period data.

13 By letter of 25 January 2019, PT Wilmar Bioenergi Indonesia submitted its replies to the anti-subsidy questionnaire sent to it by the Commission on 19 December 2018. The Commission carried out verification visits at the applicants’ premises in Indonesia from 18 to 21 March 2019.

14 In parallel, the applicants made comments as follows: on 17 January 2019, on the complaint; on 14 February 2019, on the data submitted by EBB and the sampled EU biodiesel producers and with regard to the threat of injury allegations; on 14 February 2019, on the applicability of countervailing measures to the alleged subsidy schemes; and, on 19 June 2019, on the threat of injury allegations set out in EBB’s submission of 29 April 2019 and on EBB’s request for registration of imports.

15 On 12 August 2019, the Commission adopted Implementing Regulation (EU) 2019/1344 imposing a provisional countervailing duty on imports of biodiesel originating in Indonesia (OJ 2019 L 212, p. 1) (‘the provisional regulation’). The provisional countervailing duty applicable to PT Wilmar Bioenergi Indonesia and PT Wilmar Nabati Indonesia was 15.7%. The provisional countervailing duty applicable to all companies other than those expressly mentioned in Article 1 of the provisional regulation was 18%.

16 On 13 August 2019, the Commission disclosed to the applicants the essential facts and considerations on the basis of which it adopted the provisional regulation.

17 The applicants commented on the provisional regulation and the considerations on the basis of which the Commission had adopted the provisional regulation on 28 August 2019.

18 On 4 October 2019, the Commission disclosed the essential facts and considerations on the basis of which it intended to impose definitive countervailing measures on biodiesel originating in Indonesia. The applicants submitted their observations on those considerations on 14 October 2019.

19 At the end of the anti-subsidy proceeding the Commission adopted the contested regulation, by which it confirmed the conclusions which it had reached in the provisional regulation. It took the view that the Indonesian Government had supported the biodiesel industry by means of subsidies within the meaning of Article 3(1) of the basic regulation. The Commission found that that support had been provided through certain schemes. Those schemes included, inter alia, that under which the Oil Palm Plantation Fund, a public body, paid to biodiesel producers which delivered biodiesel to companies designated as ‘Petrofuel entities’ the difference between the mineral diesel reference price, which those entities paid, and the biodiesel reference price set by the Minister for Energy and Mineral Resources. Thus, the Commission concluded that the Indonesian Government had entrusted or directed producers of CPO – a raw material which biodiesel producers purchased to process into biodiesel – to provide that raw material for less than adequate remuneration, in particular by means of export restrictions and price control through the group of public companies PT Perkebunan Nusantara (‘PTPN’).

20 The definitive countervailing duty applicable to PT Wilmar Bioenergi Indonesia and to PT Wilmar Nabati Indonesia was 15.7%. The definitive countervailing duty applicable to all companies other than those expressly mentioned in Article 1 of the contested regulation was 18%.

Forms of order sought

21 The applicants claim that the Court should: – annul the contested regulation in so far as it concerns them; – order the Commission to pay the costs.

22 The Commission, supported by EBB, contends that the Court should: – dismiss the action as inadmissible in so far as it concerns PT Multi Nabati Sulawesi; – dismiss the action as unfounded; – order the applicants to pay the costs.

Law

23 In support of their action, the applicants rely in essence on four pleas in law, alleging: – first, infringement of Article 3(1)(a), (1)(a)(i) and (2) and Article 7(1)(a) of the basic regulation and manifest errors of assessment on the part of the Commission in concluding that the payments received from the Oil Palm Plantation Fund constituted a countervailable subsidy and by failing to adjust the benefit allegedly received by the applicants to take account of the discounts granted and the transportation and credit costs that were incurred in order to obtain the alleged subsidies; – second, infringement of Article 3(1)(a)(iv), (1)(b) and (2), Article 6(d) and Article 28(5) of the basic regulation and manifest errors of assessment on the part of the Commission in concluding that there was government support for the provision of CPO for less than adequate remuneration; – third, infringement of Article 8(8) of the basic regulation and a manifest error of assessment on the part of the Commission in finding that there was a threat of material injury to the Union industry; – fourth, infringement of Article 8(5) and (6) of the basic regulation and a manifest error of assessment on the part of the Commission in concluding that imports from Indonesia threatened to cause injury to the Union industry and in ignoring the impact of imports from Argentina.

The first plea in law, alleging infringement of Article 3(1)(a), (1)(a)(i) and (2) and Article 7(1)(a) of the basic regulation and manifest errors of assessment on the part of the Commission in concluding that the payments received from the Oil Palm Plantation Fund constituted countervailable subsidies and in failing to adjust the benefit allegedly received by the applicants to take account of the discounts granted and the transportation and credit costs that were incurred in order to obtain the alleged subsidies

24 The first plea comprises four parts, which are disputed by the Commission, supported by EBB.

The first part of the first plea, alleging infringement of Article 3(1)(a) of the basic regulation and a manifest error of assessment in so far as the Commission considered that the payments made by the Oil Palm Plantation Fund constituted a financial contribution by a government or public body

25 By the first part, the applicants claim that the payments made by the Oil Palm Plantation Fund did not constitute a financial contribution by a government or public body.

26 As a preliminary point, it should be borne in mind that, in accordance with the case-law, 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 and political situations which they have to examine (see judgment of 18 October 2018, Gul Ahmed Textile Mills v Council, C‑100/17 P, EU:C:2018:842, paragraph 63 and the case-law cited).

27 The broad discretion enjoyed by the EU institutions in the sphere of measures to protect trade also covers the determination of the existence of a financial contribution within the meaning of Article 3(1) of the basic regulation (see, to that effect, judgment of 11 October 2012, Novatex v Council, T‑556/10, not published, EU:T:2012:537, paragraphs 34 and 35).

28 In that regard, it should be pointed out that Article 3 of the basic regulation provides that a subsidy is deemed to exist if the conditions in paragraphs 1 and 2 of that article are fulfilled, that is to say, if there is a ‘financial contribution’ by a government in the country of origin or export and if a ‘benefit’ is thereby conferred.

29 The aim of Article 3(1)(a) of the basic regulation is to define the concept of ‘financial contribution’ so as to exclude government measures that do not fall within one of the categories listed in that provision. It is with that in mind that Article 3(1)(a)(i) to (iii) of the basic regulation lists specific situations which must be regarded as involving a financial contribution by a government, namely the direct or indirect transfer of funds, foregone government revenue or the provision of goods or services or the purchase of goods, while Article 3(1)(a)(iv) of the basic regulation provides in its second indent that the act, for a government, of entrusting or directing a private body to carry out one or more of the type of functions listed in points (i), (ii) and (iii) is equivalent to the grant by that government of a financial contribution within the meaning of Article 3(1)(a) of the basic regulation (judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑300/16, EU:T:2019:235, paragraph 106).

30 It is apparent from Article 3(1)(a) of the basic regulation, and in particular from the words ‘a financial contribution by a government’ that the financial contribution must be attributable to a government. However, that provision contains no details as to the origin of the funds transferred. Thus, in paragraph 1(a)(i), that article includes in the concept of ‘financial contribution’ a ‘government practice’ which involves a direct transfer of funds, without adding requirements as to the origin of those funds. The fact that the source of the funds does not affect the classification of a government practice as a ‘financial contribution by a government’ is clearly apparent in the situation envisaged by the second indent of Article 3(1)(a)(iv), where a government entrusts or directs a private body to carry out certain functions such as the direct transfer of funds, without specifying the origin of the funds used. It is clear from those provisions that the concept of ‘financial contribution by a government’ covers all the financial means a government may actually use.

31 In the present case, it is apparent from recitals 30 to 33 of the contested regulation, and it is not disputed by the applicants, that the Oil Palm Plantation Fund is a public body. That body is used to support purchases of biodiesel by entities appointed by governmental bodies and it entrusted an agency, the Fund Management Agency (‘the Management Agency’), to collect export levies on the exportation of palm oil commodities, which constitute its funds (recitals 41 to 43 of the provisional regulation).

32 It is apparent from the provisional regulation that the Biodiesel Subsidy Fund, which is part of the Oil Palm Plantation Fund, was established by Presidential Regulation 61/2015 (recital 40) and that the Management Agency was entrusted with the task of collecting export levies on the exportation of palm oil commodities which constituted the financing of the Oil Palm Plantation Fund (recitals 41 and 42). It is by Article 1(4) of Presidential Regulation 61/2015 that the Indonesian Government granted the Management Agency the right to use export levies and export taxes imposed on CPO and its derivatives, while Article 18(1) of Presidential Regulation 66/2018 expressly stipulates that ‘the use of [the fund] … is purported to cover the difference between market index price of diesel and the market index price of biodiesel’ (recitals 58 and 60). Thus, the difference between that diesel reference price and the biodiesel reference price is paid by the Management Agency to the biodiesel producers out of the Oil Palm Plantation Fund’s funds (recital 47).

33 First, the applicants claim that the origin and nature of the funds used by the Management Agency to make payments to biodiesel producers, namely the export levy paid by the exporting producers, are relevant for the purpose of determining whether there is a financial contribution. Second, the export levy was expressly intended to finance the Oil Palm Plantation Fund and the Indonesian Government could not have used it for any other purpose. Third, the Oil Palm Plantation Fund was financed by the CPO supply chain for the benefit of that same chain and the payments therefore involved no cost for the Indonesian Government.

34 In that regard, it should be borne in mind, as was stated in paragraph 30 above, that Article 3(1)(a) of the basic regulation contains no details as to the origin of the funds transferred and thus covers all the financial means a government may actually use.

35 Thus, the interpretation of that provision proposed by the applicants which takes into account the origin of the funds paid by the government in the guise of a financial contribution and the way in which that government may use those funds under national legislation must be rejected. In addition, the fact that the funds available to the Oil Palm Plantation Fund come from the export levy paid by exporting producers does not mean that when those funds are paid to biodiesel producers to cover the difference between the market index price of diesel and the market index price of biodiesel, there is no cost for the public body which pays them.

36 It should be added, first, that that conclusion is not called into question by the judgment of 14 July 1988, Fediol v Commission (188/85, EU:C:1988:400), relied on by the applicants. In that case, which concerned an action for annulment of a Commission decision terminating an anti-subsidy proceeding initiated upon a complaint by the applicant, the Court of Justice did indeed reject the argument that the concept of subsidy should be construed broadly and that there is a subsidy if the result of all the measures adopted is to confer a benefit on the recipients. However, in the same judgment, the Court held that the concept of export subsidy referred to in Article 3 of Council Regulation (EEC) No 2176/84 of 23 July 1984 on protection against dumped or subsidised imports from countries not members of the European Economic Community (OJ 1984 L 201, p. 1) was conceived by the EU legislature as necessarily implying a financial burden borne directly or indirectly by public bodies and that the concept of a charge covered not merely cases in which the State advanced funds, but also those in which it waived recovery of tax debts (judgment of 14 July 1988, Fediol v Commission, 188/85, EU:C:1988:400, paragraph 12). That judgment, which does not take into consideration the origin of the funds used, does not mean that payments made by the Management Agency in the present case, financed by the collection by that body of an export levy, cannot constitute a financial burden borne directly by a public body.

37 Second, the applicants’ argument based on the report of the Appellate Body of the WTO’s Dispute Settlement Body entitled ‘United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint)’ adopted on 12 March 2012 (WT/DS 353/AB/R, paragraph 617) (‘the “US – Large Civil Aircraft (2nd complaint)” Appellate Body report’) cannot succeed.

38 In that regard, it should be borne in mind that, according to the case-law, interpretations of the Agreement on Subsidies and Countervailing Measures in Annex 1A to the Agreement establishing the WTO (OJ 1994 L 336, p. 156) (‘the SCM Agreement’) adopted by that body cannot bind the General Court in its assessment of the validity of the contested regulation (see, to that effect and by analogy, judgments of 1 March 2005, Van Parys, C‑377/02, EU:C:2005:121, paragraph 54; of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑300/16, EU:T:2019:235, paragraph 103; and of 19 May 2021, China Chamber of Commerce for Import and Export of Machinery and Electronic Products and Others v Commission, T‑254/18, under appeal, EU:T:2021:278, paragraph 419).

39 However, the Court of Justice also points out that the general international law principle of compliance with treaty commitments (pacta sunt servanda), laid down in Article 26 of the Vienna Convention on the Law of Treaties of 23 May 1969, means that the Courts of the European Union must, for the purposes of interpreting and applying the SCM Agreement, take account of the interpretation that the WTO’s Dispute Settlement Body has given to the various provisions of that agreement (see, by analogy, judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 32, and Opinion of Advocate General Pitruzzella in Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2021:533, point 24, followed by the Court in that case; see also, by analogy, judgment of 6 October 2020, Commission v Hungary(Higher education), C‑66/18, EU:C:2020:792, paragraph 92). Thus, there is nothing to preclude the General Court from referring to it when it comes to interpreting the provisions of the basic regulation which correspond to provisions of the SCM Agreement (judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑300/16, EU:T:2019:235, paragraph 103).

40 In any event, paragraph 617 of the ‘US – Large Civil Aircraft (2nd complaint)’ Appellate Body report relied on by the applicants states that ‘a direct transfer of funds will normally involve financing by the government to the recipient’. It must be noted that that report concludes that the financial contribution is granted ‘normally … by the government’, but, contrary to what the applicants claim, does not impose any requirements as to the origin of the funds available to that government.

41 Since the applicants’ arguments have been rejected in their entirety, the first part of the first plea must be rejected.

The second part of the first plea, alleging infringement of Article 3(1)(a)(i) of the basic regulation and a manifest error of assessment inasmuch as the Commission concluded that the payments from the Oil Palm Plantation Fund constituted grants

42 By the second part of the first plea, the applicants submit that the payments made by the Oil Palm Plantation Fund do not constitute a direct transfer of funds in the form of a grant, but a payment for the purchase of biodiesel.

43 It should be recalled, as stated in paragraphs 29 and 30 above, that Article 3(1)(a) of the basic regulation lists specific situations which must be regarded as involving a financial contribution by a government, including the direct or indirect transfer of funds, and that that financial contribution must be attributable to a government.

44 Furthermore, in order to determine whether a direct transfer of funds represents a benefit constituting a grant within the meaning of Article 3 of the basic regulation which may justify the imposition of a countervailing duty, the absence of consideration, or of equivalent consideration, on the part of the undertaking receiving that transfer must be taken into account.

45 In the present case, the procedure classified by the Commission as a ‘direct transfer of funds’, according to recitals 45 to 50 of the provisional regulation (and recital 37 of the contested regulation), was the following: ‘(45) More precisely, Presidential Regulation 26/2016 stipulates in its Article 9(1) that “[t]he Director-General of [the Directorate-General of New Renewable Energy and Energy Conservation] shall appoint the Petrofuel Entity which shall carry out the procurement of biodiesel as meant in Article 4 in the framework of financing by the … Management Agency by observing the policy of the Steering Committee of the … Management Agency” and in the following Article 9(8) that “[b]ased on the approval from the Minister as meant in paragraph (7), the Director-General of [the Directorate-General of New Renewable Energy and Energy Conservation] on behalf of the Minister shall appoint: a. the biodiesel producers which are going to participate in the procurement of biodiesel” … (46) The biodiesel producers which choose to participate and have been allocated a quota pursuant to that regulation are under the obligation to sell the monthly amount of biodiesel to the so-called “Petrofuel Entity”. So far, the [Indonesian Government] has appointed the following as Petrofuel Entity: (a) PT Pertamina (“Pertamina”), a State-owned oil and gas company, and (b) PT AKR Corporindo Tbk (“AKR”), a private oil and gas company. (47) The [Oil Palm Plantation Fund] envisages a specific payment mechanism, whereby Pertamina (and for some small volumes, AKR) pays biodiesel producers the diesel reference price (as opposed to the actual biodiesel price which, during the [investigation period] … would have been higher), whereas the difference between such diesel reference price and the biodiesel reference price is paid to the biodiesel producers out of the [Oil Palm Plantation Fund] by the Management Agency. (48) The reference price for diesel and biodiesel is determined by the Minister [for] Energy and Mineral Resources … in [the] following way: (a) The diesel reference price is based on prices reported by Platts Singapore for oil … and the production cost of diesel in Indonesia. (b) … the biodiesel reference price is based on the CPO domestic price, to which transformation costs are added … (49) More precisely, each biodiesel producer – including all the exporting producers – invoices Pertamina (or AKR, as the case may be) the volume of biodiesel which the buyer is required to use under the blending obligation [under which, for a number of applications, such as for example public transport, operators are under the legal obligation to use as fuel a blend of mineral diesel and biodiesel which contains at least 20% of biodiesel], and Pertamina (or AKR) pays to the producer the diesel reference price for that period. … (50) The producer of biodiesel, in order to obtain reimbursement of the price difference between the price paid by Pertamina and AKR (based on the diesel reference price) and the reference price for biodiesel, shall then send an additional invoice for the same volume to the Management Agency, enclosing a list of documents. Once the Management Agency has received the invoice, and after verification of the elements contained therein, the Management Agency shall pay to the relevant biodiesel producer the difference between the reference price for diesel (paid by Pertamina or AKR, as the case may be) and the reference price of biodiesel set for that period.’

46 In the first place, the applicants claim that the Commission was wrong to classify the payments made by the Oil Palm Plantation Fund as a direct transfer of funds and not as payments made in consideration for the purchase of biodiesel. First, they submit that the system of payments from the Oil Palm Plantation Fund involved reciprocal obligations for the Indonesian Government and for the biodiesel producers, namely the sale of biodiesel for the payment of a price. In their view, the existence of the prior contracts between the applicants and the Oil Palm Plantation Fund and the fact that the former sent invoices to the latter in order to receive the payments should be taken into consideration in that regard. The nature of the Oil Palm Plantation Fund, which seeks to support the purchase and use of biodiesel in order to implement the Indonesian Government’s blending mandate, should have been taken into consideration when determining the nature of the contribution at issue. Second, most of the purchases of biodiesel from the applicants were made by PT Pertamina (‘Pertamina’), a public body which is part of the Indonesian Government. Third, on the basis of those factors, the applicants submit that the Commission should have classified the payments made by the Oil Palm Plantation Fund as part of a purchase of goods within the meaning of Article 3(1)(a)(iii) of the basic regulation.

47 In that regard, it should be noted that, in recital 38 of the contested regulation, the Commission stated that ‘the disbursement[s] of the [Oil Palm Plantation Fund] in favour of the biodiesel producers cannot qualify as payments due in a purchase contract between the [Indonesian Government] and the biodiesel producers but constitute a direct transfer of funds’.

48 It is apparent from the factual context of the present case, as set out in recitals 45 to 50 of the provisional regulation and recital 37 of the contested regulation (see paragraph 45 above) and which is not disputed by the applicants, that, in the context of the system conceived by Presidential Regulation 26/2016, the Management Agency did not intervene in the transaction between the biodiesel producers, on the one hand, and Pertamina or PT AKR Corporindo Tbk (‘AKR’), on the other. It was the Director-General of the Directorate-General of New Renewable Energy and Energy Conservation who, first, appointed the entities that would carry out the procurement of biodiesel (in accordance with the policy defined by the Steering Committee of the Management Agency) and, second, on behalf of the Minister, appointed the biodiesel producers who were to participate in the procurement of biodiesel and allocated the volume of biodiesel for each biodiesel producer. The reference price for diesel and biodiesel was determined by the Minister for Energy and Mineral Resources. Next, each producer invoiced Pertamina or AKR for the volume of biodiesel which these undertakings were required to use under the blending mandate and the latter paid the producer the diesel reference price. It was only at the end of that transaction that the biodiesel producers sent, in order to obtain reimbursement of the difference between the reference price for diesel and the reference price for biodiesel, an additional invoice for the same volume of biodiesel to the Management Agency, together with a copy of the decision of the Directorate-General of New Renewable Energy and Energy Conservation certifying that they were allowed to participate in the procurement of biodiesel and indicating the respective volumes of biodiesel allocated, a copy of the contract for procurement of biodiesel between them and Pertamina or AKR, the certificate signed by Pertamina or AKR and the biodiesel producer in question, stamped by the Indonesian Government and including information about the place of delivery, the volume and type of biodiesel provided, and the amount of transport fees, and a copy of the agreement between the Management Agency and the relevant biodiesel producer.

49 In addition, the Commission also considered, in recitals 67 and 69 of the contested regulation, that the reference price for biodiesel that was paid to independent suppliers did not reflect supply and demand under normal market conditions without government intervention, and that the amount of the transformation costs calculated by the Indonesian Government as part of the formula used to calculate the reference price for biodiesel was excessive. The Commission did not make a manifest error of assessment in deducing from that situation, in recital 68 of the contested regulation, that, without those payments, prices of biodiesel in Indonesia would be lower. Since the payments made by the Management Agency to biodiesel producers are calculated on the basis of a reference price for biodiesel that does not result from normal market conditions, they cannot be regarded as a price supplement which the producers are entitled to obtain in return for their supplies to Pertamina or AKR.

50 On the basis of those facts, the Commission did not make a manifest error of assessment in finding, in recital 37 of the contested regulation, having regard for its broad discretion, recognised by the case-law cited in paragraph 27 above, in determining whether there was a financial contribution within the meaning of Article 3(1) of the basic regulation and a benefit within the meaning of Article 3(2), that the funds paid by the Oil Palm Plantation Fund ‘[were] not therefore part of a contract for consideration (such as the purchase of biodiesel by the government in exchange of a price)’. It is not apparent from the presentation of the facts that the Oil Palm Plantation Fund was involved in the transaction between the biodiesel producers and the ‘Petrofuel entities’, namely Pertamina and AKR, or that that fund received any consideration for the payments it made. Thus, the nature of the transaction – which the applicants emphasised at the hearing – does not lead to the conclusion that the payments made by that fund formed part of a reciprocal obligation scheme.

51 That conclusion cannot be called into question by the nature of the Oil Palm Plantation Fund, which was intended, according to the applicants, to support the purchase and use of biodiesel in order to implement the Indonesian Government’s blending mandate. In the present case, the nature and purpose of that fund were correctly taken into account by the Commission, in recitals 56 to 61 of the provisional regulation and in recital 30 of the contested regulation, in order to classify the payments it made as a ‘financial contribution’.

52 Furthermore, that conclusion can also not be called into question by the applicants’ reference to paragraphs 616 and 617 of the ‘US – Large Civil Aircraft (2nd complaint)’ Appellate Body report, where it is stated that ‘in such a transaction [a “grant”], money or money’s worth is given to a recipient, normally without an obligation or expectation that anything will be provided to the grantor in return’, that ‘a direct transfer of funds will normally involve financing by the government to the recipient’ and that ‘in some instances, as in the case of grants, the conveyance of funds will not involve a reciprocal obligation on the part of the recipient’.

53 In that regard, it should be noted as a preliminary point that, according to the case-law, the interpretations of the SCM Agreement adopted by that body are not capable of binding the General Court in its assessment of the validity of the contested regulation (see paragraphs 38 and 39 above).

54 Moreover, it appears, on reading the extract cited by the applicants, that the concept of direct transfer of funds ‘normally’ involves financing granted ‘by the government’ and that, in the case of a ‘grant’, ‘the conveyance of funds will not involve a reciprocal obligation’ and is carried out ‘normally without an obligation or expectation [as regards the recipient] that anything will be provided to the grantor in return’.

55 As regards the applicants’ arguments set out in paragraph 46 above, first, as is apparent from paragraphs 48 and 49 above, since the payments made by the Management Agency to biodiesel producers are calculated on the basis of a reference price for biodiesel that does not result from normal market conditions, they cannot be regarded as a price supplement which the producers are entitled to obtain in return for their supplies to Pertamina or AKR. The applicants’ argument in that regard must therefore be rejected.

56 Second, it should be noted that it is apparent from recital 46 of the provisional regulation that Pertamina belongs to the Indonesian State. Even if, contrary to the Commission’s findings set out in recitals 48 and 49 of the contested regulation, Pertamina were a public body, it is a separate entity from the Oil Palm Plantation Fund and the Management Agency and there is nothing to indicate that Pertamina acted as a purchaser of biodiesel together with the Oil Palm Plantation Fund as the applicants maintain. As the Commission rightly points out, Pertamina was not an agency entrusted by the Government to perform only certain functions, but an oil and gas company which performed the same functions as AKR, a private oil and gas company, as is clear from recital 46 of the provisional regulation and recital 55 of the contested regulation, a point that has not been disputed by the applicants.

57 In the light of the foregoing considerations, it must be observed that, even if the applicants’ claims that Pertamina was a public body were correct, such an error on the part of the Commission would justify annulment of the contested regulation only if it called into question its lawfulness by invalidating the Commission’s entire analysis relating to the existence of a subsidy (see, to that effect and by analogy, judgment of 25 October 2011, Transnational Company Kazchrome and ENRC Marketing v Council, T‑192/08, EU:T:2011:619, paragraph 119), which is not the case here.

58 Third, the fact that the payments in question cannot be classified as consideration for the purchase of biodiesel means that the transaction at issue in the present case cannot be classified as a ‘purchase’ of goods by the Indonesian Government and therefore come within the scope of Article 3(1)(a)(iii) of the basic regulation. Accordingly, the applicants’ arguments to that effect must be rejected.

59 In the second place, the applicants put forward a series of arguments seeking to establish that, even if the Court considers that Pertamina is not a public body, it was nevertheless ‘entrusted’ or ‘directed’ by the Indonesian Government to purchase biodiesel and that the biodiesel producers were ‘entrusted’ or ‘directed’ to sell it within the meaning of Article 3(1)(a)(iv) of the basic regulation.

60 In that regard, it must be stated that it was not Pertamina’s payment of the diesel reference price as consideration for the purchase of biodiesel that was considered by the Commission to be a ‘direct transfer of funds’, or the sale of biodiesel by biodiesel producers, but the payment by the Management Agency, a public body, of the difference between the diesel reference price and the biodiesel reference price for the period in question to the biodiesel producer concerned. Accordingly, Article 3(1)(a)(iv) of the basic regulation, which concerns the conduct of private bodies (see paragraphs 111 and 116 below), is not applicable.

61 As a result, the whole of the second part of the first plea must be rejected.

The third part of the first plea, alleging infringement of Article 3(2) of the basic regulation and a manifest error of assessment inasmuch as the Commission found that payments from the Oil Palm Plantation Fund conferred a benefit

62 By the third part, the applicants claim that the payments made by the Oil Palm Plantation Fund do not confer a benefit on biodiesel producers.

63 In that regard, it should be noted that Article 3 of the basic regulation provides that a subsidy is deemed to exist where there is a ‘financial contribution’ or ‘income or price support’ by a government and if a ‘benefit’ is thereby conferred. Articles 6 and 7 of that regulation lay down the procedures for calculating the ‘benefit’ conferred. According to the case-law, a benefit is conferred on the recipient if the latter is in a more favourable situation than it would have been in in the absence of the subsidy scheme. In addition, it is clear from Article 3(1) and (2) of the basic regulation that it is only where a government financial contribution confers a real benefit on an exporting producer that a subsidy is deemed to exist for that exporting producer (see, to that effect, judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑300/16, EU:T:2019:235, paragraphs 195 and 210).

64 By their first complaint, the applicants submit that the Commission relied on a manifestly incorrect counterfactual scenario when it found that, in the absence of the Oil Palm Plantation Fund and its payments, the biodiesel producers could not have sold their product on the Indonesian market and that the prices of biodiesel would be lower. In the absence of the Oil Palm Plantation Fund the blending mandate would still exist and the blenders would be required to purchase biodiesel in order to comply with the blending mandate and biodiesel producers would charge the same price as they could have obtained on the world market.

65 In the present case, the Commission considered, in recital 65 of the contested regulation, that the correct counterfactual scenario was not one in which, in the absence of the Oil Palm Plantation Fund, the blenders would pay the reference price for biodiesel. According to the Commission, without the blending mandate, without the Oil Palm Plantation Fund and without its payments, blenders would not have an incentive to purchase biodiesel and biodiesel producers would not receive the supplement corresponding to the difference between the reference price for diesel and the reference price for biodiesel set by the Indonesian Government.

66 It is apparent from the provisional regulation that the blending mandate was introduced by Regulation of the Ministry of Energy and Mineral Resources No 12/2015 (recital 189). In the same year, 2015, the Biodiesel Subsidy Fund, which is part of the Oil Palm Plantation Fund, was established by Presidential Regulation 61/2015 (recital 40) and the Management Agency was entrusted with the task of collecting export levies on the exportation of palm oil products which constituted the financing of the Oil Palm Plantation Fund (recitals 41 and 42). By the same provision (Article 1(4) of Presidential Regulation 61/2015), the Indonesian Government granted the Management Agency the right to use export levies and export taxes imposed on CPO and its derivatives and imposed an obligation to procure and use biodiesel (recital 60). The funds used to pay biodiesel producers the difference between the diesel reference price and the biodiesel reference price came from the funds thus allocated to the Management Agency.

67 It appears that the implementation of the blending mandate in the system devised by the Indonesian Government depended on financing by the Management Agency. It is a complex scheme established by the Indonesian Government with the objective of supporting purchases of biodiesel by entities appointed by governmental bodies, as is apparent from Presidential Regulations 24/2016 and 26/2016 (recital 44 of the provisional regulation). The scenario of the existence of the blending mandate without funding by the Management Agency is thus purely hypothetical and the Commission cannot be criticised for not having based its analysis on it.

68 Accordingly, the Commission did not make a manifest error of assessment within the meaning of the case-law cited in paragraphs 26 and 27 above, which also applies to the determination of the existence of a benefit conferred on the recipient of a subsidy, in considering the scheme as a whole for the purposes of the determination of the existence of a benefit.

69 By their second complaint, the applicants submit that the Commission was wrong to find that, without the Oil Palm Plantation Fund, the reference price for biodiesel would have been lower.

70 As a preliminary point, the Commission’s argument that the applicants’ complaint is ineffective must be rejected. It is true that the Commission correctly pointed out, in its written pleadings and also at the hearing, that Article 3(2) of the basic regulation does not require the precise amount of the benefit to be calculated, but rather the existence of a benefit to be determined. The calculation of the benefit came under Articles 6 and 7 of the basic regulation. However, the fact that the reference price for biodiesel was higher than that which would have resulted from market conditions, without there being any need, at this stage of the analysis, to quantify that accurately, is one of the aspects of the Oil Palm Plantation Fund payment system which support the conclusion that there is a benefit. The fact that the amount of the payments from the Oil Palm Plantation Fund might possibly also be taken into consideration when calculating the benefit conferred on the beneficiary does not mean that it is a priori irrelevant for the purposes of determining whether there is such a benefit.

71 The applicants’ argument is therefore indeed effective.

72 In the present case, recital 69 of the contested regulation states as follows: ‘Notably, the Commission observed that the reference prices used by the [Indonesian Government] to determine the amount of grant disbursed by the [Oil Palm Plantation Fund] are not indicative of a market price as the formula to calculate them is not based on an undistorted market reality. This is because on the one hand the whole market, upstream and downstream, is distorted and cannot be therefore representative of normal, competitive, market conditions. On the other hand, the Commission considered that the amount of the conversion costs calculated by the [Indonesian Government] as part of the formula used to calculate the reference price for biodiesel (the average domestic price for CPO and a conversion fee of … 100 [United States dollars (USD)] per tonne added to that) is excessive. The Commission verified the actual transformation costs of some of the exporting producers and observed that the [Indonesian Government]’s calculation overstate[d] those costs. These actual transformation costs amounted to, on average, an amount between USD 60 to USD 80 per tonne during the investigation period …’

73 It is thus clear from recital 69 of the contested regulation that the Commission took into account two factors in order to conclude that there was a benefit. First, it concluded that the entire Indonesian market, upstream and downstream, was distorted and could not be representative of normal, competitive market conditions and, second, it considered that the amount of the transformation costs, namely USD 100 per tonne, used in the formula to determine the reference price for biodiesel, was excessive by comparison with the actual costs of some of the exporting producers that it had verified.

74 In the first place, the applicants submit that the biodiesel reference price did not shield biodiesel producers from market fluctuations, as it evolved in line with the CPO ‘cost, insurance, freight’ (CIF) Rotterdam (Netherlands) quotations.

75 In that regard, it should be noted that the fact that the Indonesian biodiesel reference price evolved in line with CPO CIF Rotterdam quotations, assuming that were proved, does not mean that it constituted a market price. As the Commission correctly points out, the fact that the reference price for biodiesel followed fluctuations in other international prices does not alter the fact that that reference price was set on the basis of the domestic price of CPO (see recital 48 of the provisional regulation) which had been subject to intervention by the Indonesian Government (see paragraph 150 below). Furthermore, the CPO CIF Rotterdam price already includes the transport and insurance price, which is not the case for the product sold on the domestic market. Accordingly, the applicants’ argument cannot, by itself, invalidate the Commission’s findings.

76 In the second place, the applicants argue that the biodiesel reference price was determined on the basis of the cost of raw materials, to which a reasonable amount was added to cover the various conversion costs. The Commission failed to take into consideration the fact that those ‘conversion costs’ were not limited to transformation costs, but also included a reasonable amount for ‘selling, general and administrative costs and profit’.

77 It is apparent from recital 81 of the contested regulation, and it is not disputed by the applicants, that conversion costs had been set at USD 100 per tonne since 21 March 2016. That shows that those costs were not subject to variations. Furthermore, there is no apparent link between budget items such as ‘selling, general and administrative costs and profit’ and the category of ‘conversion costs’. Therefore, the Commission cannot be criticised for not adding to the actual conversion costs of the exporting producers, which were between USD 60 and USD 80 per tonne during the investigation period according to recital 69 of the contested regulation, such budgetary items which do not appear to have any connection with the transformation of the product.

78 It follows from the foregoing that the Commission did not make a manifest error of assessment within the meaning of the case-law cited in paragraph 26 above when it concluded that the Indonesian biodiesel reference price was excessive.

79 By their third complaint, the applicants claim that any benefit resulting from payments from the Oil Palm Plantation Fund was passed on to the ‘Petrofuel entities’.

80 In that regard, it must be stated that the applicants’ arguments seeking to dispute the existence of a financial contribution conferring a benefit on them have been rejected in the context of the first and second parts as well as the current part of the first plea. It is also common ground that the payments at issue, corresponding to the difference between the diesel reference price and the biodiesel reference price, were paid by the Management Agency to the biodiesel producers, including the applicants. The applicants have failed to adduce sufficient evidence to show that part of those sums or the benefit derived from their payment was transferred to AKR and Pertamina. Such evidence is, however, necessary in order to establish that an EU institution has committed a manifest error of assessment such as to justify the annulment of a measure (see, to that effect, judgment of 11 September 2014, Gold East Paper and Gold Huasheng Paper v Council, T‑444/11, EU:T:2014:773, paragraph 62). The fact that the scheme established by the Indonesian Government could also have been beneficial to AKR and Pertamina does not mean that the benefit conferred on the recipients was passed on to those undertakings. Furthermore, even assuming that the blenders benefited from advantageous purchase terms for biodiesel by acquiring it at the reference price for diesel and not at the reference price for biodiesel, that fact does not preclude that, under the same scheme, the biodiesel producers enjoyed another benefit as a result of the payments made by the Management Agency.

81 In the light of the foregoing considerations, the third complaint must be rejected.

82 By their fourth complaint, the applicants claim that the Commission’s benefit analysis does not take account of the fact that the Oil Palm Plantation Fund was financed by the export levies paid, inter alia, by biodiesel producers. The purpose of those levies is to finance the Oil Palm Plantation Fund and they do not exist in the absence of that fund and its payments.

83 As a preliminary point, the Commission’s argument that the applicants’ complaint is ineffective must be rejected. Since the export levies form part of the financing of the Oil Palm Plantation Fund, their role in the system of payments from that fund may have an effect on whether a benefit is granted to the recipient. The fact that the amount of the export levies might also be taken into account when calculating the benefit conferred on the recipient does not mean that it is a priori irrelevant for the purpose of determining whether such a benefit exists.

84 In the present case, it is clear from recital 89 of the provisional regulation, and it is accepted by the applicants, that the export levy does not apply only to biodiesel, but rather ‘CPO and the downstream products’, which includes biodiesel. Furthermore, it is apparent from that recital that during the investigation period the export levy was much higher for CPO than for biodiesel. In that respect, the applicants do not explain how an export levy which applies to several products would offset the subsidy from which one of those products benefits and thus cancel out the benefit conferred on the recipients of that subsidy.

85 In addition, and without prejudice to the case-law cited in paragraphs 38 and 39 above, the arguments which the applicants base on the reports of the WTO bodies cannot be accepted.

86 First, the applicants rely on the WTO Panel report entitled ‘United States – Measures Affecting Trade in Large Civil Aircraft – Second Complaint (Recourse to Article 21.5 of the [Dispute Settlement Understanding] by the European Union)’, adopted on 9 June 2017 (WT/DS 353/RW). That dispute concerned whether the direct transfers of funds from the State of South Carolina to the company Boeing had been offset, in the form of investments by Boeing into real estate on the site of the project concerned, or whether they constituted a subsidy. The Appellate Body had taken the view that it had not been demonstrated that compensation had been provided by Boeing, since it was not apparent from the agreement between the State of South Carolina and Boeing that the residual value of the real estate would revert to the State of South Carolina. Accordingly, that dispute did not concern whether export levies relating to a range of products offset a subsidy from which the producers of one of those products benefit, and the applicants’ argument based on an a contrario analysis of the panel report must be rejected.

87 Second, the applicants rely on the WTO Appellate Body report entitled ‘United States – Countervailing Measures on Certain Hot-Rolled Carbon Steel Flat Products from India’, adopted on 8 December 2014 (WT/DS 436/AB/R). That dispute concerned whether it was necessary to take account of the costs borne by the recipients of certain loans in order to determine whether those loans conferred a benefit on those recipients. Accordingly, that dispute did not concern whether export levies relating to a range of products offset a subsidy which producers of one of those products receive and the applicants’ argument by analogy must be rejected.

88 For those reasons, the applicants’ arguments cannot be accepted and, consequently, the whole of the third part of the first plea must be rejected.

The fourth part of the first plea, alleging infringement of Article 7(1)(a) of the basic regulation and a manifest error of assessment inasmuch as the Commission did not adjust the amount of the subsidy to take account of the discounts granted as well as transport and credit costs

89 By the fourth part, the applicants claim that, when it calculated the amount of the countervailable subsidy, the Commission should have deducted the transport and credit costs borne by the applicants.

90 Article 7(1) of the basic regulation provides as follows: ‘… In establishing [the amount of the countervailable subsidy], the following elements may be deducted from the total subsidy: (a) any application fee or other costs necessarily incurred in order to qualify for, or to obtain, the subsidy; (b) export taxes, duties or other charges levied on the export of the product to the Union specifically intended to offset the subsidy. Where an interested party claims a deduction, it must prove that the claim is justified.’

91 As a preliminary point, it should be noted that it is clear from Article 7(1) of the basic regulation, and in particular from the wording ‘may be deducted’, that the Commission enjoys a broad discretion in the application of that provision, in accordance with the case-law cited in paragraph 26 above. The deduction of those elements from the amount of the countervailable subsidy is subject to the interested party proving that its claim for deduction is justified. Once that proof has been adduced, the Commission must make the deduction requested.

92 In the first place, the applicants submit that the Commission should have deducted from the amount of the countervailable subsidy the costs of transporting the biodiesel in the context of sales to Pertamina and AKR, which were necessary in order to obtain payments from the Oil Palm Plantation Fund. The applicants consider that the General Court is not bound in its interpretation of Article 7(1)(a) of the basic regulation by the Information from the Commission – Guidelines for the calculation of the amount of subsidy in countervailing duty investigations (OJ 1998 C 394, p. 6) (‘the guidelines on the calculation of the subsidy’), which limits the deductible transport costs to those paid directly to the government or to a public body.

93 In that regard, it should be noted that the guidelines are an instrument intended to define, while complying with higher-ranking law, the criteria which the Commission proposes to apply in the exercise of its discretion when calculating the amount of countervailable subsidies (see, to that effect and by analogy, judgment of 15 March 2006, Daiichi Pharmaceutical v Commission, T‑26/02, EU:T:2006:75, paragraph 49). It follows that, when it adopts guidelines, the Commission cannot depart from the higher-ranking text of which it sets out the application criteria.

94 Furthermore, according to the case-law, by adopting rules of conduct intended to produce external effects, as is the case with the guidelines which are aimed at economic operators, and announcing by publishing them that it will apply those rules to the cases to which they relate, the institution in question imposes a limit on the exercise of its discretion and cannot depart from those rules under pain of being found to be in breach of general principles of law, such as the principles of equal treatment or the protection of legitimate expectations. It cannot therefore be precluded that, on certain conditions and depending on their content, such rules of conduct, which are of general application, may produce legal effects (see, by analogy, judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraphs 210 and 211).

95 The guidelines on the calculation of the subsidy provide, under heading ‘G. Deduction from amount of subsidy’, that ‘the only fees or costs that may normally be deducted are those paid directly to the government [during] the investigation period’, that ‘it must be shown that such payment is compulsory in order to receive the subsidy’ and that ‘payments to private parties, e.g. lawyers, accountants, incurred in applying for subsidies, are not deductible’.

96 Those clarifications are compatible with the higher-ranking text which they are intended to clarify. First, the specification that the deductible fees and costs must be ‘compulsory in order to receive the subsidy’ is consistent with the condition laid down in Article 7(1)(a) of the basic regulation, namely that the deductible fees or costs must be ‘necessarily incurred’ in order to qualify for the subsidy. Second, the clarification that ‘the only fees or costs that may normally be deducted are those paid directly to the government [during] the investigation period’ is also compatible with that provision. In view of the Commission’s broad discretion in this area, in accordance with the case-law cited in paragraph 91 above, the Commission did not, contrary to what the applicants claim, wrongly limit deductible fees and costs when it stated in the guidelines that the ‘application fee … or other costs necessarily incurred in order to qualify for … the subsidy’ referred to in Article 7(1)(a) of the basic regulation were those ‘paid directly to the government [during] the investigation period’.

97 Accordingly, the Commission was fully entitled to apply, in recitals 87 to 92 of the contested regulation, the guidelines on the calculation of the subsidy to the request for the deduction of transport costs.

98 In the present case, first, the applicants do not claim that the transport costs for delivery of the biodiesel were paid directly to the Indonesian Government during the investigation period. Second, their argument that the transport costs were necessary in order to receive payments from the Oil Palm Plantation Fund which were conditional on the biodiesel being delivered cannot be accepted. Those costs were linked exclusively to the performance of the sale contract between the applicants and Pertamina or AKR. The fact that, in order to receive the payments from the Management Agency, the biodiesel producers had to attach to their invoice a series of supporting documents including the information relating to the place of delivery, the volume and type of biodiesel provided and the amount of transport costs does not mean that those costs were ‘compulsory in order to receive the subsidy’ within the meaning of the guidelines on the calculation of the subsidy and does not alter that conclusion.

99 Accordingly, those arguments must be rejected.

100 In the second place, the applicants submit that the Commission should have deducted from the amount of the countervailable subsidy a credit cost in relation to the Oil Palm Plantation Fund payments. According to the applicants, they can charge the Oil Palm Plantation Fund its part of the price relating to the biodiesel sales only once the invoice has been issued to Pertamina or AKR. The fund subjects the data provided to multiple checks and the applicants receive payment only several months after the invoice was issued to Pertamina or AKR. The applicants clarified at the hearing that the credit cost was due to the period of time elapsing between the delivery of biodiesel and the payments by the Oil Palm Plantation Fund.

101 It must be stated that those credit costs, assuming they are proved, are the result of the procedure established by the Indonesian Government and of the time taken to deal with the documentation submitted by the applicants to the Management Agency, in accordance with the procedure described in recitals 49 and 50 of the provisional regulation. It follows that they are not ‘costs necessarily incurred in order to qualify for … the subsidy’ within the meaning of Article 7(1)(a) of the basic regulation. Nor are those costs ‘fees or costs … paid directly to the government’ within the meaning of the guidelines on the calculation of the subsidy, since, being costs connected with the Oil Palm Plantation Fund’s processing times, they cannot be regarded as amounts ‘directly paid’ to that fund. In addition, the applicants refer to the period between the delivery of biodiesel and the date on which the invoice is sent to Pertamina or AKR, on the one hand, and the date of the payments, on the other. However, the relevant date for assessing whether credit costs are necessarily incurred for the purposes of obtaining the subsidy should be not the date of the delivery of biodiesel or the date on which the invoice is sent to Pertamina or AKR, but the subsequent date on which the invoice is sent to the fund, a formality necessary to obtain payments from the fund. The applicants thus fail to establish, by such an argument, that they would be exposed to credit costs for the purposes of payment of the grant by the fund.

102 Therefore, that argument must be rejected.

103 In the third place, the applicants claim that they also incurred a ‘discount cost’ (a cost resulting from the discount applied) in order to obtain payments from the Oil Palm Plantation Fund, which the Commission should have deducted from the amount of the countervailable subsidy.

104 The Commission contends that the applicants did not assert, during the investigation, that it was appropriate to adjust the amount of the subsidy to take account of the discounted value of the biodiesel sold to Pertamina and AKR. The applicants, without submitting that they made a request to that effect, claim that the Commission had at its disposal the necessary information and, in accordance with the principle of sound administration, that it should have played a more active role and should have considered that the evidence submitted by the interested parties justified a deduction.

105 On that point, it must be stated that it is clear from Article 7(1) of the basic regulation that, where a party claims a deduction, ‘it must prove that the claim is justified’. It is clear from the facts of the present case, set out in paragraph 104 above, that the applicants did not make such a request, nor have they provided the necessary details in that respect. With regard to the deduction of costs from the amount of countervailable subsidy and in view of the broad discretion enjoyed by the Commission in accordance with the case-law cited in paragraph 91 above, the Commission cannot be criticised for having failed to deduct costs on its own initiative.

106 In the light of the foregoing considerations, that argument and, accordingly, the whole of the fourth part of the first plea must be rejected.

107 Since all of the arguments put forward in the context of the first plea in law have been rejected, that plea must be rejected.

The second plea in law, alleging infringement of Article 3(1)(a)(iv), (1)(b) and (2), Article 6(d) and Article 28(5) of the basic regulation and manifest errors of assessment on the part of the Commission in concluding that there was government support for the provision of CPO for less than adequate remuneration

108 The second plea consists of three parts, which are disputed by the Commission, supported by EBB.

The first part of the second plea, alleging infringement of Article 3(1)(a)(iv) and Article 28(5) of the basic regulation and a manifest error of assessment on the part of the Commission when it concluded that CPO suppliers were entrusted or directed to provide CPO for less than adequate remuneration

109 By the first part, the applicants submit that the Commission was wrong to conclude that the Indonesian Government entrusted or directed CPO suppliers to provide their goods for less than adequate remuneration, first, by means of an export tax and an export levy and, second, by means of transparent ‘price setting’ by PTPN, a CPO producer entirely owned by the Indonesian Government. The applicants also claim that Indonesian CPO suppliers are not subject to any inducement or threat causing them to sell their product on the domestic market at lower prices.

110 As a preliminary point, it should be borne in mind that the broad discretion enjoyed by the EU institutions in the sphere of measures to protect trade, according to the case-law, also covers the determination of the existence of a financial contribution within the meaning of Article 3(1) of the basic regulation (see paragraphs 26 and 27 above).

111 Article 3 of the basic regulation provides that a subsidy is deemed to exist if the conditions in paragraphs 1 and 2 of that article are satisfied, that is to say, if there is a ‘financial contribution’ by a government in the country of origin or export and if a ‘benefit’ is thereby conferred. Under Article 3(1)(a)(iv) of the basic regulation, a ‘financial contribution’ exists if a government ‘entrusts or directs a private body to carry out one or more of the type of functions illustrated in points (i), (ii) and (iii) which would normally be vested in the government, and the practice, in no real sense, differs from practices normally followed by governments’.

112 The concepts of ‘entrusting’ or ‘directing’ are not defined in the basic regulation.

113 According to settled case-law, the meaning and scope of a term for which EU law provides no definition must be determined by considering its usual meaning in everyday language, while also taking into account the context in which it occurs and the purposes of the rules of which it is part (see, to that effect, judgments of 3 September 2014, Deckmyn and Vrijheidsfonds, C‑201/13, EU:C:2014:2132, paragraph 19, and of 5 April 2017, Changshu City Standard Parts Factory and Ningbo Jinding Fastener v Council, C‑376/15 P and C‑377/15 P, EU:C:2017:269, paragraph 52).

114 In that regard, it should be noted that the objective of Article 3 of the basic regulation is to define the concept of a ‘subsidy’ which could be subject to a countervailing duty.

115 More specifically, the aim of Article 3(1)(a) of the basic regulation is to define the concept of ‘financial contribution’ so as to exclude government measures that do not fall within one of the categories listed in that provision. It is with that in mind that Article 3(1)(a)(i) to (iii) of the basic regulation lists specific situations which must be regarded as containing a financial contribution by a government, namely the direct or indirect transfer of funds, foregone government revenue or the provision of goods or services. Article 3(1)(a)(iv) of the basic regulation provides in its second indent that the act, for a government, of entrusting or directing a private body to carry out one or more of the type of functions listed therein is equivalent to the grant by that government of a financial contribution within the meaning of Article 3(1)(a) of the basic regulation (judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑300/16, EU:T:2019:235, paragraph 106).

116 In that context, the second indent of Article 3(1)(a)(iv) of the basic regulation is, in essence, an anti-circumvention provision, which aims to ensure that governments of third countries are not able to escape the rules on subsidies by adopting measures which, in appearance, do not strictly fall within the scope of Article 3(1)(a)(i) to (iii) of the regulation, but have, in practice, equivalent effects (judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑300/16, EU:T:2019:235, paragraph 107). That is also the WTO Appellate Body’s interpretation of Article 1.1(a)(1)(iv) of the SCM Agreement, the content of which is similar to that of Article 3(1)(a)(iv) of the basic regulation (see the WTO Appellate Body report, entitled ‘United States – Countervailing duty investigation on Dynamic Random Access Memory (DRAMS) from Korea’, adopted on 27 June 2005 (WT/DS 296/AB/R, paragraph 113); ‘the “United-States – DRAM” Appellate Body report’).

117 According to its usual meaning in everyday language, the term ‘to entrust’ means ‘to bestow upon someone a function or office, to endow, delegate or appoint’. Thus, the case-law has interpreted that term, in order to ensure full effectiveness of the second indent of Article 3(1)(a)(iv) of the basic regulation, as referring to ‘any action of the government which amounts, directly or indirectly, to conferring on a private body the responsibility of performing a function of the type referred to in Article 3(1)(a)(i) to (iii) of that regulation’ (judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑300/16, EU:T:2019:235, paragraph 108). It follows that the term ‘to direct’, which, according to its usual meaning in everyday language, means ‘to implore, order, dictate, require, prescribe, insist’, includes any act of the government which consists, directly or indirectly, in exercising their powers over a private body so that it performs a function of the type referred to in Article 3(1)(a)(i) to (iii) of the basic regulation.

118 Furthermore, it is clear from the coordinating conjunction indicating the alternative, ‘or’, between ‘entrust’ and ‘direct’ that those two actions may take place independently of each other, but also together. Moreover, it is apparent from the second indent of Article 3(1)(a)(iv) of the basic regulation, which does not restrict the nature or purpose of the action of ‘entrusting’ or ‘directing’, and from the case-law cited in paragraph 117 above, which takes into consideration ‘any action of the government’, that such action does not necessarily have to be the result of an act or measure taken in isolation, but that it may also be the result of several measures taken together.

119 It is in the light of those considerations that it is necessary to analyse the Commission’s conclusion that, by measures such as an export tax and an export levy, de facto control through PTPN of domestic CPO prices and the grant of subsidies to CPO producers, the Indonesian Government sought to obtain from CPO producers the provision of that product on the Indonesian market for less than adequate remuneration.

– The export tax and the export levy

120 By the first complaint, the applicants claim that the Commission was wrong to find that the export tax, which was set at zero during the investigation period, and the export levy, which was a tax intended to generate revenue and which was set at zero in December 2018, had the effect of ‘entrusting’ or ‘directing’ CPO suppliers to provide their goods in return for less than adequate remuneration.

121 It is apparent from recitals 113 to 117 of the provisional regulation that, in the present case, the Indonesian Government imposed an export tax and an export levy on CPO.

122 According to recitals 87 and 88 of the provisional regulation, the export tax had been introduced in 1994 and the 2016 version consisted of a progressive tariff schedule on CPO and on other products, including biodiesel (the rate of which was systematically lower than that applied to CPO). Indonesian exporters paid a tax linked to the Indonesian Government’s reference price for CPO exports. Therefore, when the reference export price set by the Indonesian Government increased, so did the export tariff. When the reference price was below USD 750 per tonne, the applicable export tax rate was 0%. During the investigation period, the CPO price remained below the threshold of USD 750 per tonne and, therefore, no export tax was payable.

123 According to recital 89 of the provisional regulation, in 2015 the Indonesian Government had also introduced an export levy on CPO and downstream products. During the investigation period that levy was set at USD 50 per tonne for CPO and at USD 20 per tonne for biodiesel.

124 In order to establish the existence of a financial contribution in the provisional regulation, the findings of which are confirmed by the contested regulation (in recitals 102 to 161), the Commission carried out an analysis based on the relevant WTO case-law.

125 On the basis of that analysis, the Commission took the view, in recitals 111 to 157 of the provisional regulation, that the action of the Indonesian Government against the CPO producers was an action ‘entrusting’ or ‘directing’ them to provide their goods to national users at less than adequate remuneration in order to create a domestic market in Indonesia where prices were artificially low. The Commission then noted, in recital 160 of that regulation, that all Indonesian CPO producers were to be regarded as private bodies and, in recitals 162 and 169 of that regulation, that those undertakings had supplied CPO on the domestic market in return for less than adequate remuneration. Lastly, in recital 170 of that regulation, the Commission considered that the provision of CPO located on Indonesian soil to the Indonesian biodiesel industry was a function which was normally vested in the government. The Commission took the view in the same recital that the determination, by the government of a State which had sovereignty over its natural resources, of the regulatory conditions for the provision of the country’s raw materials to undertakings in that country came within such a function.

126 By the analysis at issue, the Commission established, as is apparent from recital 134 of the contested regulation, that, by means of the export tax and the export levy, in combination, as stated in recitals 103, 146 and 157 of the contested regulation, with other measures, the Indonesian Government had sought to obtain from CPO producers the provision of CPO on the Indonesian market for less than adequate remuneration. That government had put in place a system of export restrictions which made the export of CPO commercially unattractive.

127 The fact that the Indonesian Government devised and established such a system is highlighted by various factors mentioned by the Commission in the contested regulation and in the provisional regulation.

128 Thus, it was noted, in recital 116 of the provisional regulation, that the Indonesian Government directly linked the export tax system to international CPO prices and not to other data (such as production levels or environmental effects) with the aim to have an effect on prices paid by exporting producers. It is apparent from Table 1 in that recital that the Indonesian Government followed the trend in prices at international level and adjusted the level of export taxes on the basis of those prices with the result that there was a fall in the profitability of exports.

129 The Commission also noted, in recital 119 of the provisional regulation, that the Indonesian Directorate-General for Customs and Excise had publicly explained, in 2015, that export duties were intended to ensure the availability of raw materials and to stimulate the growth of the domestic downstream palm oil industry, of which biodiesel manufacturing is an integral part.

130 As regards the export levy, the Commission stated, in recital 117 of the provisional regulation, that its introduction in 2015 had coincided with a period when Indonesian prices were almost identical to world prices and had allowed biodiesel producers to purchase CPO at lower prices than would otherwise be available. In addition, in recital 114 of the contested regulation, the Commission explained that that levy financed the Oil Palm Plantation Fund and de facto exclusively supported the biodiesel industry by means of subsidies.

131 The contested regulation also mentions, in recitals 128 and 129, two press articles from after the investigation period which confirm the Commission’s findings in relation to that period. Thus, in an article of 19 December 2018, the Secretary-General of the Indonesian Palm Oil Association predicted that exports of CPO could jump once the export levy had been reduced to zero. In an article of 6 December 2018, an independent analyst took the view that the suspension of the export levy would increase the competitiveness of Indonesian palm oil exporters as they would have made savings the bulk of which were likely to flow back to the Indonesian farmers via higher domestic CPO prices.

132 On the basis of those considerations, the Commission concluded, in recital 118 of the contested regulation, that ‘the overall system of export restraints put in place by the [Indonesian Government] [was] designed to benefit the biodiesel industry by keeping domestic prices of CPO artificially low’.

133 In that regard, in the first place, the applicants claim that the export tax, which was set at zero during the investigation period, could not entrust or direct CPO suppliers to provide their goods for less than adequate remuneration.

134 However, as has been pointed out in paragraphs 122 and 128 above, the Indonesian Government directly linked the export tax system to international CPO prices. It follows that the fact that the export tax was set at zero during the investigation period was due, as stated in recital 113 of the contested regulation, to the specific market circumstances. The low international price levels were sufficient in themselves to encourage CPO producers to satisfy the internal demand as a matter of priority. As the Commission rightly points out, if the intention of the Indonesian Government was no longer to collect that tax, they would have repealed the tax. In addition, as is apparent in particular from recital 118 of the contested regulation, it was the combined effect of the export tax and the export levy (which, for its part, was levied during the investigation period) which was taken into consideration by the Commission, as an overall system of export restraints put in place by the Indonesian Government which was designed to benefit the biodiesel industry by keeping domestic prices of CPO artificially low.

135 Accordingly, the applicants’ argument that any reference by the Commission to the export tax must be ignored must be rejected.

136 In the second place, the applicants claim that, in establishing the export levy, the Indonesian Government exercised its general regulatory powers to generate revenue from exports of commodities which, despite being subject to an export levy, would remain competitive on export markets.

137 First, the applicants submit that the Commission acknowledged, in recital 62 of the contested regulation, that when it decided to finance the Oil Palm Plantation Fund by means of an export levy, the Indonesian Government merely exercised its general regulatory powers, a decision which cannot be described as an act of ‘entrusting’ or ‘directing’. The applicants rely in support of their argument on the ‘United States – DRAM’ Appellate Body report.

138 On that point, it must be held that, in adopting the export restrictions in question in a specific context in which (i) the export tax was linked to international CPO prices and increased when those prices increased, and (ii) the export levy was introduced during a period in which Indonesian prices were almost identical to world prices, that government restricted the freedom of action of those companies by limiting, in practice, their ability to decide the market on which to sell their products (see, to that effect, judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑300/16, EU:T:2019:235, paragraph 124).

139 That conclusion cannot be called into question by the Commission’s analysis in recital 62 of the contested regulation, where, in dealing with another aspect of the case, namely the existence of a benefit, it notes that ‘all the companies involved in the CPO value chain, including the biodiesel producers, are compelled to pay the [export] levy’, and concludes that it is inappropriate to claim that the Oil Palm Plantation Fund was privately funded; rather, it was financed through ‘the normal fiscal and public revenue collecting activity of the [Indonesian Government]’.

140 Without prejudice to the case-law cited in paragraphs 38 and 39 above, that observation by the Commission does not mean that, contrary to the interpretation of the WTO Appellate Body cited by the applicants, namely paragraph 115 of the ‘United States – DRAM’ Appellate Body report, it interpreted Article 3(1)(a)(iv) of the basic regulation ‘so broad[ly] as to allow Members to apply countervailing measures to products whenever a government is merely exercising its general regulatory powers’.

141 In the present case, the fact that the Indonesian Government continuously established and adjusted the export restrictions in question so as to ensure that the objective pursued through those restrictions was attained cannot be regarded as mere encouragement of domestic producers of CPO. On the contrary, those actions of the Indonesian Government led those producers to sell their goods on the domestic market at a less than adequate price, a consequence which, contrary to what the applicants claim, cannot be regarded as a ‘mere by-product of governmental regulation’ within the meaning of paragraph 114 of the ‘United States – DRAM’ Appellate Body report (see, to that effect, judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑300/16, EU:T:2019:235, paragraph 125).

142 Accordingly, the applicants’ argument in that regard must be rejected.

143 Second, the applicants submit that the documents and communications cited by the Commission in recitals 118 to 121 of the provisional regulation in support of its finding that the Indonesian Government expressly pursued a strategic objective to support and develop the biodiesel industry, in particular by seeking to reduce the CPO price, concern the export tax, which was set at zero and had no effect on the CPO producers, and not the export levy. According to the applicants, the two instruments were distinct and the purpose of the export levy was to finance the Oil Palm Plantation Fund and not to reduce domestic CPO prices.

144 That argument of the applicants is based on a misreading of the provisional regulation. After stating, in recital 118 of that regulation, that a number of documents demonstrated the strategic objective pursued by the Indonesian Government, the Commission cited public declarations by the Indonesian Government concerning the export tax and export duties (recital 119) and reports of the WTO and the Organisation for Economic Co-operation and Development (OECD) concerning export tax (recitals 120 and 121). Next, in recital 122, the Commission directed its analysis to the export levy and found that the purpose of that levy, which was allocated to the Oil Palm Plantation Fund, was to support the biodiesel industry, like most of that fund’s money. It is apparent from those recitals that the Commission examined both the export tax and the export levy before reaching conclusions on the objectives of those export restraints in recital 123 of the provisional regulation and in recital 118 of the contested regulation. Furthermore, it should be recalled that the applicants’ arguments based on the fact that the export tax was set at zero during the investigation period have already been rejected in paragraph 134 above.

145 The fact that, as the applicants submit, the export levy also applies to exports of biodiesel and that it was designed to support the Oil Palm Plantation Fund cannot invalidate those considerations. First, it is apparent from recital 117 of the provisional regulation that that levy was considerably higher for CPO than for refined products such as biodiesel and, second, the fact that the export levy was allocated to the Oil Palm Plantation Fund, which in turn was responsible for the payments under the system set out in paragraph 45 above, supports the Commission’s conclusions.

146 Therefore, the Commission did not make a manifest error of assessment, within the meaning of the case-law cited in paragraphs 26 and 27, when it concluded, in recital 123 of the provisional regulation, that ‘the objective of the export restraints system put in place by the [Indonesian Government] [was] indeed to directly and indirectly support the biodiesel industry and that this [was] not merely a “side effect” of the exercise of general regulatory powers’, as confirmed in recital 118 of the contested regulation.

147 Third, the applicants maintain that the Commission’s finding in recital 115 of the contested regulation that ‘the introduction of the export levy in 2015 by the [Indonesian Government] coincided with a period where Indonesian CPO prices were nearly identical to world prices’ is purely conjectural and does not prove that the export levy was introduced in order to reduce CPO prices, which constantly evolved in line with world prices. The applicants also submit that the Commission was wrong to find, in recital 116 of the contested regulation, that the export levy had achieved its objective of reducing CPO prices on the Indonesian domestic market. According to the applicants, that difference between domestic prices and export prices of CPO corresponded to the USD 50 per tonne export levy. In addition, the decrease in CPO prices on the Indonesian market is explained by a collapse of the global commodity market.

148 It should be noted that the applicants do not call into question the Commission’s findings of fact, that is to say, (i) that the introduction of the export levy coincided with a decrease in CPO prices on the Indonesian market and (ii) that the increase in biodiesel production recorded in Table 2 set out in recital 192 of the provisional regulation entailed an increase in domestic consumption of CPO in 2016, as stated in recital 117 of the provisional regulation. It is also apparent from a graph produced by the applicants in the reply that the price of CPO on the Indonesian domestic market fell during that period and that the prices of Indonesian CPO were, generally, lower than world prices.

149 By such a line of argument, the applicants challenge not the accuracy of the findings of fact made by the Commission, but the Commission’s assessment of those facts. According to the case-law, the General Court’s review of the evidence on which the EU institutions based their findings in the sphere of anti-subsidy policy does not constitute a new assessment of the facts replacing that made by the institutions. That review does not encroach on the broad discretion of the institutions in the field of commercial policy, but is restricted to showing whether that evidence was able to support the conclusions reached by the institutions. The General Court must, therefore, not only establish whether the evidence put forward is factually accurate, reliable and consistent, but also ascertain whether that evidence contained all the relevant information which had to be taken into account in order to assess a complex situation and whether it was capable of substantiating the conclusions reached (see judgment of 18 October 2018, Gul Ahmed Textile Mills v Council, C‑100/17 P, EU:C:2018:842, paragraph 64 and the case-law cited).

150 In the present case, the Commission assessed the information in question relying on the purpose for which the overall system of export restraints was designed. The Court finds that the Commission did not make a manifest error of assessment when it concluded, in recital 118 of the contested regulation, on the basis of a set of information – namely the existence of an export tax and an export levy, the public declarations of the Indonesian Government, the reports of the WTO and the OECD, the increase in domestic consumption of CPO and the fall in prices of that product on the Indonesian domestic market after the introduction of the export levy – that the overall system of export restraints was designed to benefit the biodiesel industry by keeping domestic prices of CPO artificially low, rather than it being a mere side-effect of a government measure to collect public revenue.

151 Fourth, the applicants claim that the export levy did not have the effect of restricting CPO exports, since CPO producers still export up to 70% of their production.

152 That argument cannot be accepted. The fact that 70% of Indonesian CPO was exported does not mean that CPO producers were able freely to choose to export their product and to obtain adequate remuneration. On the contrary, as the Commission correctly points out, the CPO producers first satisfied domestic demand, which corresponded to 30% of the production according to the public sources referred to in recital 153 of the contested regulation, and it was only afterwards that they had recourse to exports. It follows that those producers were not seeking to export a greater proportion of their production where prices were higher, because the potential additional export benefits were limited by the export restrictions introduced by the Indonesian Government.

153 Since that argument has been rejected, the first complaint must be rejected in its entirety.

– Price control by PTPN

154 By their second complaint, the applicants submit that the Commission was wrong to find that the Indonesian Government reduced CPO prices on the domestic market through PTPN.

155 As a preliminary point, it should be borne in mind, as is apparent from recitals 91 to 99 and 126 of the provisional regulation and from recitals 120 and 123 of the contested regulation, that, in view of the lack of cooperation on the part of CPO suppliers and PTPN, the Commission applied Article 28(1) of the basic regulation and based its findings on the facts available.

156 In the first place, the applicants criticise the Commission for having found that PTPN set its CPO prices at an artificially low level and did not act as a rational operator on the market. They submit that PTPN, which represented only 6% to 9% of total supplies of CPO in Indonesia, did not set its prices since, first, those prices were determined by means of daily auctions reflecting supply and demand in Indonesia and, second, the fact that Indonesian CPO prices were lower than the international markets was due to the fact that Indonesia was the world’s main producer of CPO. In their view it is apparent from the information provided by eight CPO suppliers that their sales of CPO were profitable, which shows that they followed the PTPN prices because they considered them to be profitable and which also means that PTPN acted as a rational operator.

157 In that regard, it is apparent from recitals 128 to 131 of the provisional regulation that PTPN is an entirely State-owned group of companies, under the control of the Indonesian Government, which produces various commodities, including CPO.

158 It is explained in recitals 132 and 133 of the provisional regulation, and it is common ground between the parties, that PTPN organised daily auctions to sell its CPO. Before launching the daily tendering procedure, PTPN would identify a ‘price idea’ for the day, but was not obliged to reject bids below that ‘price idea’.

159 The Commission relied on a number of items of available data in order to conclude that PTPN set its CPO prices at an artificially low level. First, it is apparent from recital 151 of the contested regulation that the Indonesian Government influenced PTPN’s decisions as regards its pricing policy. When the price offered for the purchase of CPO was lower than the ‘price idea’ set for the day, PTPN’s Board of Directors, on which only the Indonesian Government was represented, could decide to accept the offer, which it did regularly. Second, it is apparent from recital 125 of the contested regulation and recital 135 of the provisional regulation that the available information had revealed that, by following the Indonesian Government’s directives, PTPN had been loss-making in recent years. Third, as is apparent from recitals 122 to 124 of the contested regulation, the Commission was unable to obtain any evidence proving that the ‘price idea’ reflected any market price resulting from a competitive tendering process. Rather, the domestic CPO price was lower than all of the international benchmarks.

160 Those findings cannot be called into question by the fact that, as is apparent from recital 146 of the provisional regulation, PTPN represents only 6% to 9% of total CPO supplies in Indonesia, which, according to the applicants, shows that CPO buyers, which are large undertakings, are able to impose their prices on both PTPN and on small CPO suppliers, in accordance with the law of supply and demand.

161 It must be noted that it is true that the market is characterised by such an imbalance in favour of CPO buyers, which are large undertakings with ‘countervailing buying power’. The Commission acknowledged this, in recital 146 of the provisional regulation. However, that fact cannot call into question the conclusion that, through the intermediary of PTPN, the Indonesian Government had been able to implement a price-setting mechanism. As the Commission noted in recital 146 of the provisional regulation without being contradicted, another feature of the CPO market, this time on the supply side, was its fragmentation between a large number of small undertakings, in particular individual farmers. In such a context, once PTPN had set a price for the day, it was very difficult for CPO suppliers, each with a small market share, to set higher prices when faced with buyers with significant buying power. The applicants’ claims that the structure of the market prevented PTPN from setting prices must therefore be rejected. On the contrary, it appears that that market structure was a factor which enabled PTPN to set CPO prices.

162 On the basis of the foregoing, it must be held that the Commission did not make a manifest error of assessment when it concluded, in recitals 124 and 125 of the contested regulation, on the basis of the facts available, that PTPN did not act as a rational operator on the market and set the CPO price at a level below the benchmarks.

163 In the second place, the applicants dispute the Commission’s conclusion in paragraph 145 of the provisional regulation that ‘by making public the daily unit price of CPO, the [Indonesian Government] effectively sets a maximum price at which the commodity will be sold on that specific day’. According to the applicants, CPO is a commodity traded worldwide on the basis of various widely available indexes and it is not unusual for its pricing to follow specific trends, and the Commission’s analysis shows that the Indonesian CPO market is very competitive.

164 It is apparent from recital 160 of the contested regulation that the Commission concluded that, in the present case, the Indonesian Government, through PTPN, acted as price-setters on the Indonesian domestic market and that all independent CPO suppliers followed those price indications. First of all, the Commission established that PTPN set its CPO prices at an artificially low level, and the applicants have not validly challenged those findings, as is apparent from paragraphs 157 to 159 above. Next, the Commission noted, in recitals 140 and 141 of the provisional regulation, that PTPN published the result of the daily tender on its online platform always at 15.30 on the day of the tender, indicating the exact award unit price for CPO, and that the daily negotiations between CPO suppliers other than PTPN and CPO purchasers, in which the starting price corresponded to the daily PTPN prices, generally took place after the results of the tenders were available. The daily price of CPO on the domestic market closely reflected the award price of the daily auctions organised by PTPN and, in addition, the unit price paid by the exporting producers to non-State-owned CPO producers was, during the investigation period, always the same as or