In the comparison between the normal value and the export price, an adjustment under Article 2(10)(i) of the Regulation No 1225/2009 on protection against dumped imports from countries not members of the European Community (the basic regulation) cannot be made where the producer established in a third State and its related distributor responsible for exports to the European Union form a single economic entity.

The division of production and sales activities within a group made up of legally distinct companies can in no way alter the fact that the group is a single economic entity which organises in that way activities that in other cases are carried on by what is, also from a legal point of view, a single entity.

In those circumstances, recognition of the existence of a single economic entity avoids costs, which are clearly included in the sale price of a product when that sale is carried out by an integrated sales department in the producer’s organisation, no longer being included where the same sales activity is carried out by a company which is legally distinct, even though economically controlled by the producer.

It follows that a distributor that forms a single economic entity with a producer established in a third State cannot be regarded as carrying out functions comparable to those of an agent working on a commission basis, within the meaning of Article 2(10)(i) of the basic regulation.

In the analysis of whether there is a single economic entity between a producer and its related distributor, it is crucial, under the case-law of the Court, to consider the economic reality of the relationship between that producer and that distributor. In view of the requirement of a conclusion reflecting the economic reality of the relationship between that producer and that distributor, the EU institutions are required to take account of all factors relevant to the determination as to whether or not that distributor carries out the functions of an integrated sales department within that producer. Those factors cannot be limited to the functions carried out by the related distributor in connection only with the sales of the product concerned manufactured by the producer which claims to form a single economic entity with that distributor. In the same way, the direct invoicing by the producer established in a third State of a proportion of export sales to the European Union is a relevant factor which those institutions may also take into account.

In the same way as the EU institutions are entitled to take into account sales of products other than the product concerned manufactured by the related producer for the purposes of determining whether there is a single economic entity, the direct invoicing by the producer established in a third State of a proportion of export sales to the European Union is a relevant factor which those institutions may also take into account. In that regard, the General Court was right to observe, in paragraph 69 of the judgment under appeal, that the larger the proportion of such direct sales, the more difficult it is to maintain that the related trader carries out the functions of an internal sales department. Contrary to what PTMM asserts, paragraph 69 of that judgment is therefore not vitiated by any error of law.

(see paras 39-44, 49, 56)