Council of the European Union and Commission of the European Communities v Interpipe Nikopolsky Seamless Tubes Plant Niko Tube ZAT (Interpipe Niko Tube ZAT) and Interpipe Nizhnedneprovsky Tube Rolling Plant VAT (Interpipe NTRP VAT).
Date: 2012-02-16
51. In that regard, it should be noted, first of all, that different rules apply for the determination of normal value and export price and therefore the sales, general and administrative expenses need not necessarily be treated in the same way in both cases. However, any differences between the two values may be taken into account under the adjustments provided for in Article 2(10) of the basic regulation (see, to that effect, Case C‑69/89 Nakajima v Council [1991] ECR I‑2069, paragraphs 63, 70 and 73, and Case C‑178/87 Minolta Camera  v Council [1992] ECR I‑1577, paragraph 12).
52. In paragraph 177 of the judgment under appeal, the General Court held that ‘according to consistent case-law concerning the calculation of the normal value, but applicable by analogy to the calculation of the export price, the sharing of production and sales activities within a group formed by legally distinct companies does not alter the fact that one is dealing with a single economic entity which organises in that manner a series of activities which are carried out, in other cases, by an entity which is also a single entity from the legal point of view (see, by analogy, Case 250/85 Brother Industries v Council [1988] ECR 5683, paragraph 16; Case C‑175/87 Matsushita Electric v Council [1992] ECR I‑1409, paragraph 12; Case C‑104/90 Matsushita Electric Industrial v Council  [1993] ECR I‑4981, paragraph 9)’.
53. The dispute before the General Court related to the adjustment made to the export price, in accordance with Article 2(10)(i) of the basic regulation. In that regard, it is apparent from the wording and broad scheme of Article 2(10) of that regulation that an adjustment to the export price or to the normal value may be made only to take account of differences in relation to factors which affect both prices, such as commissions, that is to say differences in commissions paid in respect of the sales under consideration, and which thus affect their comparability, in order to ensure that the comparison is made at the same level of trade. Therefore, the question of an export price adjustment, in the context of the application of Article 2(10) of the basic regulation, requires, first of all, an examination at the level of trade at which the export price was determined.
55. It is not disputed that the ‘single economic entity’ concept was developed for the purposes of determining the normal value. The General Court thus rightly set out, in paragraphs 178 and 179 of the judgment under appeal, the specific situations in which it may be concluded that there is such an entity for the calculation of the normal value. However, it does not follow from those considerations that that concept is to be applied only in relation to the domestic markets of producer-exporters. If a producer exports his products to the European Union through the intermediary of a legally separate undertaking, but over which it holds economic control, the requirement of a finding reflecting the economic reality of the relations between that producer and that sales company militates more in favour of applying the ‘single economic entity’ concept when calculating the export price.
58. It should be noted, in that regard, that, in accordance with the case‑law of the Court of Justice, if a party claims adjustments under Article 2(10) of the basic regulation in order to make the normal value and the export price comparable for the purpose of determining the dumping margin, that party must prove that its claim is justified (see, to that effect, Case 255/84 Nachi Fujikoshi  v Council [1987] ECR 1861, paragraph 33; Case 258/84 Nippon Seiko  v Council  [1987] ECR 1923, paragraph 45; and Case 260/84 Minebea  v Council  [1987] ECR 1975, paragraph 43).
60. In those circumstances, as noted by the Advocate General in point 79 of his Opinion, the burden of proving that the specific adjustments listed in Article 2(10)(a) to (k) of the basic regulation must be made lies with those who wish to rely on them, irrespective of who they are.
61. Thus, where a producer claims that an adjustment of the normal value, in principle downward, or an adjustment of the export price, logically upward, applies, it is for that operator to indicate and to establish that the conditions for granting such an adjustment are satisfied. Conversely, as the General Court rightly found, where, as in the present case, the Council and the Commission consider that it is appropriate to apply a downward adjustment of the export price, on the ground that a sales company affiliated to a producer carries out functions comparable to those of an agent working on a commission basis, it is the responsibility of those institutions to adduce at the very least consistent evidence showing that that condition is fulfilled.
63. It is settled case‑law of the Court of Justice that, in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the institutions of the European Union enjoy a broad discretion by reason of the complexity of the economic, political and legal situations which they have to examine. The judicial review of such an appraisal must therefore be limited to verifying whether the procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers (see Case C‑351/04 Ikea Wholesale  [2007] ECR I‑7723, paragraphs 40 and 41).
64. It should be recalled that, according to settled case‑law, it is clear from Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice that the General Court has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, second, to assess those facts. When the General Court has found or assessed the facts, the Court of Justice has jurisdiction under Article 225 EC to review the legal characterisation of those facts by the General Court and the legal conclusions it has drawn from them (see Case C‑535/06 P Moser Baer India  v Council  [2009] ECR I‑7051, paragraph 31).
65. The Court of Justice thus has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice (see Moser Baer India  v Council , paragraph 32).
68. It must also be found that the General Court’s review of the three factors set out in the Commission’s fax of 26 June 2006 and the relevant evidence in the file, ref erred to in paragraph 188 of the judgment under appeal, which aimed to assess whether the institutions furnished evidence that Sepco’s functions were comparable to those of an agent working on a commission basis so as to be able to make the adjustment at issue, did not constitute a new assessment of the facts replacing that made by the institutions. That review thus did not encroach on the broad discretion of the institutions in the field of commercial policy, justified by the complexity of economic, political and legal situations which they are required to examine, but was restricted to showing whether that evidence was able to support the conclusions reached by the institutions.
76. In paragraph 64 of the judgment under appeal, the General Court rightly noted the case-law of the Court of Justice in relation to compliance with the rights of the defence of the parties in anti‑dumping investigations. According to that case‑law, the undertakings concerned should have been placed in a position during the administrative procedure in which they could effectively make known their views on the correctness and relevance of the facts and circumstances alleged and on the evidence presented by the Commission in support of its allegation concerning the existence of dumping and the resultant injury (Case C‑49/88 Al-Jubail Fertilizer  v Council  [1991] ECR I‑3187, paragraph 17).
77. It should be noted that respect for the rights of the defence is of crucial importance in anti‑dumping investigations (see, to that effect, Al-Jubail Fertilizer v Council , paragraphs 15 to 17; by analogy, Case C‑113/04 P Technische Unie  v Commission  [2006] ECR I‑8831, paragraph 55; and Case C‑141/08 P Foshan Shunde Yongjian Housewares & Hardware  v Council  [2009] ECR I‑9147, paragraph 93).
105. The third part of the first ground of appeal alleges a failure by the General Court to respond to the plea of Niko Tube and NTRP seeking to have removed from the discussion, for being out of time and to preserve their rights of defence, the Council’s explanations and allegations contained in its defence. It is settled case-law of the Court of Justice that the obligation to state reasons does not require the General Court to provide an account that follows exhaustively and point by point all the reasoning articulated by the parties to the case. The reasoning may be implicit on condition that it enables the persons concerned to know why the measures in question were taken (see Joined Cases C‑101/07 P and C‑110/07 P Coop de France Bétail et Viande  v Commission [2008] ECR I‑10193, paragraph 75).
108. In that regard, it should be noted that the question whether the General Court could, properly in law, conclude from those facts that the institutions had failed neither in their duty to act diligently nor in their duty to state reasons is a question of law subject to the review of the Court of Justice on appeal ( Moser Baer India  v Council , paragraph 34).
117. In the light of the settled case‑law of the Court of Justice, pursuant to which an alleged distortion of the facts or evidence must be obvious from the documents on the Court’s file without there being any need to carry out a new assessment of the facts and the evidence (see Case C‑551/03 P General Motors v Commission  [2006] ECR I‑3713, paragraph 54, and Case C‑362/05 P Wunenburger  v Commission  [2007] ECR I‑4333, paragraph 67), those circumstances are sufficient to reject that complaint.
The second ground of the cross‑appeal
161. As regards the alleged failure to state reasons, it is not for the Court of Justice to require the General Court to provide reasons for each of its choices where it relies on one item of evidence as opposed to another in support of its decision. To decide otherwise would, once again, be tantamount to the Court of Justice substituting its own assessment of that evidence for that made by the General Court, which it is not empowered to do. It follows from the foregoing that the seventh part of the second ground of the cross‑appeal must be rejected.