PT Perindustrian dan Perdagangan Musim Semi Mas (PT Musim Mas) v Council of the European Union.
Date: 2016-10-26
27


In the second place, with regard to the argument that the General Court disregarded key evidence, it is necessary to point out that the Court of Justice 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 (judgment of 11 September 2014, Gem-Year and Jinn-Well Auto-Parts (Zhejiang) v Council, C‑602/12 P, not published, EU:C:2014:2203, paragraph 37).
40


According to the Court’s case-law, 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 (see, by analogy, judgment of 13 October 1993, Matsushita Electric Industrial v Council, C‑104/90, EU:C:1993:837, paragraph 9).
41


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 (see, to that effect and by analogy, judgment of 10 March 1992, Canon v Council, C‑171/87, EU:C:1992:106, paragraph 13).
43


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 (see, to that effect, judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraph 55). 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.
64


To the extent that PTMM criticises the General Court for making a substitution of grounds, it is appropriate to recall that, according to settled case-law, the General Court cannot, in the context of an action for annulment, substitute its own reasoning for that of the author of the contested act (judgment of 14 April 2016, Netherlands Maritime Technology Association v Commission, C‑100/15 P, not published, EU:C:2016:254, paragraph 57 and the case-law cited).
71


In the first place, with regard to the argument that the reasoning in the judgment under appeal is discriminatory and insufficient, it should be pointed out that, according to the Court’s settled case-law, the duty incumbent on the General Court under Article 36 of the Statute of the Court of Justice of the European Union, applicable to the General Court under the first paragraph of Article 53 of that statute, and under Article 81 of the Rules of Procedure of the General Court, to state reasons for its judgments does not require the General Court to provide an account that follows exhaustively and one by one all of the arguments articulated by the parties to the case. The reasoning of the General Court may therefore be implicit, on condition that it enables the persons concerned to know the reasons why that Court has not upheld their arguments and that it provides the Court of Justice with sufficient material for it to exercise its powers of review (see, to that effect, judgments of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraph 105, and of 19 March 2015, MEGA Brands International v OHIM, C‑182/14 P, EU:C:2015:187, paragraph 54).
82


In that regard, so far as concerns that burden of proof, it must be recalled that, according to the Court’s case-law, 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 (judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraph 58).
83


Moreover, 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 (judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraph 60).
84


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, where the EU institutions take the view 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 (judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraph 61).