Contents
Judgment of the General Court (Eighth Chamber, Extended Composition)14 September 2022note(Dumping — Imports of mixtures of urea and ammonium nitrate originating in Russia, Trinidad and Tobago and the United States — Implementing Regulation (EU) 2019/1688 — Article 3(1) to (3) and (5) to (8) of Regulation (EU) 2016/1036 — Sales through related companies — Construction of the export price — Injury to the Union industry — Calculation of price undercutting — Causal link — Article 9(4) of Regulation 2016/1036 — Calculation of the injury margin — Injury elimination)In Case T‑744/19,Methanol Holdings (Trinidad) Ltd, established in Couva (Trinidad and Tobago), represented by B. Servais and V. Crochet, lawyers,vEuropean Commission, represented by G. Luengo and P. Němečková, acting as Agents,supported byAchema AB, established in Jonava (Lithuania), represented by B. O’Connor and M. Hommé, lawyers,and byGrupa Azoty S.A., established in Tarnów (Poland),Grupa Azoty Zakłady Azotowe Puławy S.A., established in Puławy (Poland),represented by B. O’Connor and M. Hommé, lawyers,THE GENERAL COURT (Eighth Chamber, Extended Composition),composed of M. van der Woude, President, J. Svenningsen, R. Barents (Rapporteur), T. Pynnä and J. Laitenberger, Judges,Registrar: I. Kurme, Administrator,having regard to the written part of the procedure,further to the hearing on 18 January 2022,gives the following
Judgment
1By its action under Article 263 TFEU, the applicant, Methanol Holdings (Trinidad) Ltd, seeks annulment of Commission Implementing Regulation (EU) 2019/1688 of 8 October 2019 imposing a definitive anti-dumping duty and definitively collecting the provisional duty imposed on imports of mixtures of urea and ammonium nitrate originating in Russia, Trinidad and Tobago and the United States of America (OJ 2019 L 258, p. 21; ‘the contested implementing regulation’).
Background to the dispute
Administrative procedure
2On 13 August 2018, following a complaint, the European Commission published a notice of initiation of an anti-dumping proceeding concerning imports of mixtures of urea and ammonium nitrate (‘UAN’) originating in Russia, Trinidad and Tobago and the United States of America (OJ 2018 C 284, p. 9).
3The investigation into dumping and injury covered the period from 1 July 2017 to 30 June 2018 (‘the investigation period’). The examination of trends relevant for the assessment of injury covered the period from 1 January 2015 to 30 June 2018 (‘the period considered’).
4The product under investigation corresponded to mixtures of UAN in aqueous or ammoniacal solution that may have additives, currently falling under CN code 31028000 (‘the product concerned’).
5The applicant, a company governed by the law of Trinidad and Tobago, is active in the production and sale of mixtures of UAN. During the investigation period, the applicant sold UAN to a related customer in the European Union, namely Helm AG (‘HAG’). The latter then sold UAN to independent customers in the European Union and to two related customers located in the European Union, namely Helm Engrais France (‘HEF’) and Helm Iberica (‘HIB’). The applicant is the only cooperating exporting producer in Trinidad and Tobago and its exports represented 100% of the exports from that country during the investigation period.
6On 10 April 2019, the Commission adopted Implementing Regulation (EU) 2019/576 imposing a provisional anti-dumping duty on imports of mixtures of UAN originating in Russia, Trinidad and Tobago and the United States of America (OJ 2019 L 100, p. 7; ‘the provisional implementing regulation’).
7On 11 April 2019, a disclosure document setting out the Commission’s provisional findings was sent to the applicant, which submitted its comments on that document on 26 April 2019.
8By letter of 12 July 2019, the Commission informed the applicant of the essential facts and considerations on the basis of which it intended to impose a definitive anti-dumping duty on imports of the product concerned originating in, inter alia, Trinidad and Tobago. In recital 88 of the document annexed to that letter, the Commission, inter alia, explained that it had decided to supplement the undercutting calculations performed at the provisional stage in the light of the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234). The applicant replied to that letter on 22 July 2019.
9On 8 October 2019, the Commission adopted the contested implementing regulation.
10Article 1(2) of the contested implementing regulation provides for the imposition of a definitive anti-dumping duty in the form of a fixed amount of EUR 22.24 per tonne on imports into the European Union of the product concerned produced by the applicant.
11The applicant submitted written observations during the administrative procedure.
Summary of the grounds on which the contested implementing regulation is based
Sampling
12As regards the sampling of Union producers, the Commission selected in the sample three Union producers, together accounting for more than 50% of the total Union production and sales volumes.
13As regards the sampling of unrelated importers, the Commission decided that such sampling was not necessary and sent questionnaires to the three importers that had agreed to cooperate.
14As regards the sampling of exporting producers in Russia, Trinidad and Tobago and the United States (‘the countries concerned’), only two exporting producers in Russia (namely Acron Group and EuroChem Group), one in Trinidad and Tobago (namely the applicant) and one in the United States (namely CF Industries Holdings, Inc.) agreed to cooperate and to be included in the sample. In view of the low number of responses from exporting producers, the Commission decided that sampling was not necessary.
Product concerned and like product
15The product under investigation corresponded to mixtures of UAN in aqueous or ammoniacal solution that may have additives, falling under CN code 31028000, originating in Russia, Trinidad and Tobago and the United States.
16The Commission considered that the product concerned, the product produced and sold on the domestic market of the countries concerned and the product produced and sold in the Union by the Union industry constituted like products.
Dumping
17As regards the normal value of the products concerned produced by exporting producers in Trinidad and Tobago, the Commission found that the applicant appeared to be the only producer of the product concerned in that country during the investigation period.
18In the applicant’s case, since there were no sales of a like product on the domestic market, the Commission constructed the normal value in accordance with Article 2(3) and (6)(b) of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21; ‘the basic regulation’). The normal value was constructed by adding to the average cost of production of the like product of the cooperating exporting producer during the investigation period (i) the actual amounts of the selling, general and administrative (‘SG&A’) expenses applicable to production and sales, in the ordinary course of trade, of the same general category of products incurred by the applicant in the domestic market of Trinidad and Tobago, and (ii) the actual amount of profit applicable to production and sales, in the ordinary course of trade, of the same general category of products realised by the applicant in the same domestic market.
19In order to determine the export price, the Commission found that the applicant exported to the Union only via related companies acting as importers in the investigation period. All sales to the Union were carried out via a related importer in Germany. That related importer sold the product concerned to independent customers in Germany or to related companies in France and Spain, which in turn sold the product concerned to independent customers on their respective national markets. Therefore, the export price was established on the basis of the price at which the imported product was first resold to independent customers in the Union, in accordance with Article 2(9) of the basic regulation. In this case, adjustments to the price were made for all costs incurred between importation and resale, including SG&A expenses and dilution and mixing costs; and for a reasonable profit.
20The Commission then compared the applicant’s normal value and export price on an ex-works basis. In order to ensure a fair comparison between the normal value and the export price, the Commission made adjustments pursuant to Article 2(10) of the basic regulation for discounts, rebates and differences in quantities, as well as for transport, insurance, handling, loading and ancillary costs, and credit cost.
21Following that comparison, the Commission calculated the dumping margin for the applicant and for the other potential exporting producers. The contested implementing regulation set the dumping margin for the applicant at 55.8%.
Definition of Union industry
22The Commission found that the like product was manufactured by 20 known producers in the Union during the investigation period. Those entities, taken together, constituted the ‘Union industry’ within the meaning of Article 4(1) of the basic regulation.
23The Commission also recalled that three of those producers, representing over 50% of the total Union production of the like product, had been selected for the sampling of Union producers.
Injury
24The Commission considered that a cumulative assessment of the effects of imports from the countries concerned was possible, since the criteria for such an assessment, set out in Article 3(4) of the basic regulation, were met.
25When analysing the volume of imports, the Commission found that the volume of imports from the countries concerned increased by 64% over the period considered, and the market share of those imports increased by 72%, from 21.9% to 37.7%, in the investigation period. More specifically, during that period, the volume of imports from Trinidad and Tobago fell and the market share of those imports fell from 10.2% to 8.1%.
26When analysing the effects on prices, the Commission compared, in the provisional implementing regulation, the prices of the sampled Union producers with those of cooperating exporting producers in the countries concerned. More specifically, for the purposes of determining the price undercutting during the investigation period, a comparison was made between (i) the weighted average prices per product type of the imports from the cooperating exporting producers in the countries concerned to the first independent customer on the Union market, established on a cost, insurance, freight (CIF) basis, with appropriate adjustments for customs duties and post-importation costs, and (ii) the corresponding weighted average sales prices per product type of the sampled Union producers charged to independent customers on the Union market.
27The Commission thus compared the Union border CIF price of the exporting producers with the ex-works price of the Union producers, representing 60% of the latter’s sales. However, for those Union industry sales which incurred sea freight for delivery of the products concerned to ports such as Rouen (France) and Ghent (Belgium), representing 40% of the sales of the Union producers, it was found appropriate to use the prices for delivery to those ports instead of calculating ex-works prices.
28The Commission thus found that the imports from the countries concerned undercut the prices of the Union industry by 6.8% on average. More specifically, it considered that the weighted average undercutting margin was 6.2% for imports from Trinidad and Tobago.
29The Commission then assessed the impact of the imports on the Union industry in the light of various macroeconomic and microeconomic indicators.
30Following its analysis of the injury indicators, the Commission concluded that the Union industry had suffered material injury within the meaning of Article 3(5) of the basic regulation.
31In the contested implementing regulation, the Commission decided to supplement its price undercutting calculations, in the light of the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), with two additional undercutting calculations which, in its view, made it more clear that the dumped imports undercut the Union industry’s prices regardless of the methodology used.
32The Commission also noted, in the contested implementing regulation, that, in addition to establishing the existence of price undercutting, the investigation had also shown that, in any event, the effect of the dumped imports was to cause significant price suppression on the Union market during the investigation period, for the purposes of Article 3(3) of the basic regulation. It concluded that undercutting was therefore but one factor in a much broader price effect analysis in which price depression and suppression were key causation arguments.
33The Commission therefore maintained its conclusion that the Union industry had suffered material injury within the meaning of Article 3(5) of the basic regulation.
Causal link
34Over the period considered and against a backdrop of decreasing consumption in the Union, the Commission found, in the provisional implementing regulation, that import volumes from the countries concerned and their market shares had increased significantly whereas prices from the countries concerned had fallen on average by 33%. It noted that the increase in the market share of the imports coincided with a similar decrease of market share for the Union industry. Bearing in mind that UAN is a price-sensitive commodity, that the market share of imports from the countries concerned was 37.7% in the investigation period, and that those imports had been made at prices that undercut Union industry prices, the Commission concluded that such imports had produced substantial harmful effects.
35In the contested implementing regulation, the Commission confirmed that imports from the countries concerned undercut the sales prices from the Union producers. It observed that, in any event, the causation analysis had taken into consideration many other factors besides the finding of undercutting in connection with the effects of the dumped imports. Thus, price depression as well as price suppression during the investigation period, caused by the imports concerned, were key causation arguments.
36After examining other factors, namely, inter alia, the world price for urea and the higher costs for Union producers, the Commission concluded that none of those factors had broken the causal link between the dumped imports from the countries concerned and the material injury to the Union industry.
Level of the measures and Union interest
37To determine the level of the measures, the Commission examined whether a duty lower than the margin of dumping would be sufficient to remove the injury caused by dumped imports to the Union industry.
38In the case of Trinidad and Tobago, the Commission concluded that provisional anti-dumping measures should be imposed in accordance with the lesser duty rule in Article 7(2) of the basic regulation. It compared the injury margins and the dumping margins and the amount of the duties was set at the lower of the two margins. Following the imposition of provisional measures, the Commission slightly revised its calculation of future compliance costs, in accordance with the second subparagraph of Article 9(4) of the basic regulation, read in conjunction with Article 7(2d) of that regulation. It updated the expected costs of EU allowances and decided that the average price for EU allowances for carbon dioxide (CO2) emission was definitively established at EUR 25.81 per tonne of CO2 produced, as compared with EUR 24.14 per tonne of CO2 produced at the provisional stage. Other elements of the calculation were also slightly revised. Thus, an additional cost of 3.8% was established (instead of 3.7% at the provisional stage) and that cost was added to the non-injurious price.
Anti-dumping measures
39As regards the form of the anti-dumping measures, the Commission chose to establish a specific fixed duty.
40The definitive anti-dumping duty was thus established, ultimately, at an amount varying, according to the companies concerned, between EUR 22.24 and EUR 42.47 per tonne of the product concerned. For the applicant, that duty amounted to EUR 22.24 per tonne of the product concerned.
Forms of order sought
41The applicant claims that the Court should:– annul the contested implementing regulation in so far as it relates to the applicant;– order the Commission to pay the costs.
42The Commission, supported by the interveners, Achema AB, Grupa Azoty S.A. and Grupa Azoty Zakłady Azotowe Puławy S.A., contends that the Court should:– dismiss the action;– order the applicant to pay the costs.
Law
43In support of its action, the applicant relies formally on a single plea in law alleging that the methodology applied by the Commission in determining the undercutting and underselling margins infringes Article 1(1) and Article 3(1) to (3) and (5) to (8) of the basic regulation, the case-law of the Court and the World Trade Organization (WTO) and the principle of fair comparison.
44According to the applicant, the Commission used as a starting point the price of UAN for sales made by HAG, HEF and HIB respectively to independent customers in the European Union and then it deducted the SG&A expenses of HAG, HEF and HIB and a profit margin of 4% obtained from cooperating unrelated importers. The applicant states that the Commission then added EUR 1 per tonne to cover post-importation costs. In essence, as stated in recital 128 of the contested implementing regulation, to calculate the undercutting and underselling margins, the Commission applied by analogy Article 2(9) of the basic regulation, which concerns the construction of the export price for the dumping margin calculation.
45As a preliminary point, it should be noted that the single plea formally raised by the applicant consists, in essence, of three parts. The first part of the single plea alleges that the methodology applied by the Commission to calculate the undercutting and underselling margins infringes Article 3(1) of the basic regulation. The second part alleges that that methodology infringes Article 3(2), (3) and (5) to (8) of that regulation, in so far the Commission did not take into account prices negotiated with independent customers and did not compare prices at the same level of trade. The third part alleges that the definitive anti-dumping duty exceeds what is adequate to remove the injury to the Union industry, in breach of Article 9(4) of that regulation.
46Moreover, it should be recalled that the effects of the dumped imports on prices within the European Union may be examined from different perspectives. Article 3(3) of the basic regulation provides for the examination by the Commission of three aspects, namely price undercutting, price depression and price suppression.
47In the present case, the Commission relied on the same constructed export price to calculate price undercutting (compared with the Union producers’ selling price) and price underselling (compared with the target price).
48In essence, as regards price undercutting, the Commission sampled the Union industry by selecting producers accounting for 50% of the total Union production and sales volumes. It also constructed the applicant’s export prices on the basis of the prices charged by the applicant’s related importers to independent customers, deducting SG&A expenses and a profit margin of 4% (and adding EUR 1 per tonne to cover post-importation costs). Next, it compared those constructed export prices to the Union industry ex-works price (for 60% of sales) and CIF price of the ports of Rouen and Ghent (for 40% of sales). The result of that comparison revealed price undercutting. Lastly, in the contested implementing regulation and in the light of the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), the Commission supplemented that calculation, carried out at the stage of the provisional implementing regulation, with a first additional calculation set out in recital 114 of the contested implementing regulation and a second subsidiary calculation set out in recital 115 of the contested implementing regulation, both confirming the existence of price undercutting.
The first part of the single plea, alleging that the methodology applied by the Commission to calculate the undercutting and underselling margins infringes Article 3(1) of the basic regulation
49The applicant submits that the application by analogy of Article 2(9) of the basic regulation, to which the Commission refers in recital 128 of the contested implementing regulation, infringes Article 3(1) of the basic regulation.
50In the first place, the applicant relies on the wording of Article 3(1) of the basic regulation, which states that ‘the term “injury” … shall be interpreted in accordance with the provisions of this Article’. Thus, that provision makes no reference to Article 2(9) of that regulation. In the second place, the latter provision concerns the construction of the export price for the purposes of calculating the dumping margin and not of the price undercutting and price underselling margins. In the third place, no provision of that regulation provides that Article 2(9) of that regulation may be applied by ‘analogy’ for the purposes of calculating the injury margin.
51In addition, the applicant submits that the rationale for the construction of the export price under Article 2(9) of the basic regulation with respect to sales made in the European Union through related companies is the unreliability of that price in view of the relationship between the parties. According to the applicant, that rationale does not apply to the determination of its price to be used in calculating the undercutting and underselling margins, since the actual price charged by HAG, HEF and HIB to their independent customers in the European Union is by definition reliable because it is charged between parties which are not related. The applicant states that the flaws identified in the methodology applied by the Commission also affect the validity of the calculation of the undercutting margins of the Russian exporting producers, in so far as they also sell their products through related traders.
52The Commission, supported by the interveners, disputes the applicant’s arguments.
53As a preliminary point, it should be noted that recital 128 of the contested implementing regulation states:‘… when it comes to the elements taken into account for calculation of undercutting (in particular the export price), the Commission has to identify the first point at which competition takes (or may take) place with Union producers in the Union market. That point is in fact the purchasing price of the first unrelated importer because that company has in principle the choice to source either from the Union industry or from overseas suppliers. That assessment should be based on the export price at the Union frontier level which is considered to be a level comparable to the Union industry ex-works price. In the case of export sales via related importers, the point of comparison should be right after the good crosses the Union border, and not at a later stage in the distribution chain, e.g. when selling to the final user of the good. Thus, by analogy with the approach followed for the dumping margin calculations, the export price is constructed on the basis of the resale price to the first independent customer duly adjusted pursuant to Article 2(9) of the basic [regulation]. As that Article is the only provision in the basic [regulation] which gives guidance on the construction of the export price, the application thereof by analogy is justified. With regard to the underselling calculations, the Commission noted that the use of Article 2(9) of the basic [regulation] did not lead to any asymmetrical comparison (unlike the Jindal case) because for the underselling comparison the Union industry’s target price was constructed including manufacturing costs, SG&A [expenses] and target profit of the producing entity only, and thus, it is comparable to the constructed export price. In other words, the costs of related selling entities of the Union producers were not taken into account when comparing the Union industry’s target price with the constructed export price.’
54Article 3(1) of the basic regulation defines the term ‘injury’ as meaning, ‘unless otherwise specified, material injury to the Union industry, threat of material injury to the Union industry or material retardation of the establishment of such an industry’.
55In accordance with Article 3(2) of the basic regulation, a determination of injury is to be based on positive evidence and is to involve an objective examination of, first, the volume of the dumped imports and the effect of the dumped imports on prices in the Union market for like products and, second, the consequent impact of those imports on the Union industry.
56With regard more particularly to the effect of the dumped imports on prices, Article 3(3) of the basic regulation provides for, inter alia, the obligation to give consideration to whether there has been, for the dumped imports, significant price undercutting as compared with the price of a like product of the Union industry, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which would otherwise have occurred, to a significant degree.
57It thus follows from the provisions of the basic regulation referred to in paragraphs 54 to 56 above that they do not lay down any particular method for determining the effect of the dumped imports on prices of like products of the Union industry (see, to that effect, judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑301/16, EU:T:2019:234, paragraph 175).
58Thus, the applicant’s argument that, for the purposes of determining the existence of injury to the Union industry, Article 3(1) of the basic regulation precludes the use of a constructed export price, in accordance with Article 2(9) of that regulation, must be rejected.
59Nonetheless, as noted in paragraph 55 above, the determination of the existence of such injury presupposes, in any event, an objective and fair examination of the effect of the dumped imports on prices (see judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑301/16, EU:T:2019:234, paragraph 176 and the case-law cited), which it is appropriate to examine in connection with the second part of the single plea, together with the applicant’s claim alleging infringement of the principle of equal treatment.
60Furthermore, in so far as the applicant submits, in essence, that the price charged by its related importers to their independent customers in the European Union is reliable and that the construction of an export price is not necessary, it should be noted that Article 2(8) of the basic regulation provides that, in principle, ‘the export price shall be the price actually paid or payable for the product when sold for export from the exporting country to the Union’. It is only in cases where ‘there is no export price or where it appears that the export price is unreliable because of an association or a compensatory arrangement between the exporter and the importer or a third party’ that the first subparagraph of Article 2(9) of that regulation authorises the construction of an export price on the basis of the price at which the imported products are first resold to an independent buyer.
61It is thus apparent from Article 2(9) of the basic regulation that the institutions may treat the export price as unreliable in two cases, namely where there is an association between the exporter and the importer or a third party or a compensatory arrangement between the exporter and the importer or a third party. In any other case, where an export price exists, the institutions are required to base their determination of dumping on that price (judgments of 21 November 2002, Kundan and Tata v Council, T‑88/98, EU:T:2002:280, paragraph 49, and of 25 October 2011, CHEMK and KF v Council, T‑190/08, EU:T:2011:618, paragraph 26).
62It is not disputed that, during the investigation period, the applicant exported to the European Union only via its related importer, namely HAG, which also owns shares in the applicant.
63The applicant cannot therefore complain that the Commission took that relationship into account for the purposes of constructing an export price. As the Commission rightly stated, without being contradicted on that point by the applicant, the export price declared to customs by the applicant is unreliable precisely because of the existence of an intra-group relationship.
64It follows that this part of the single plea must be rejected.
The second part of the single plea, alleging that the methodology applied by the Commission to calculate the undercutting and underselling margins infringes Article 3(2), (3) and (5) to (8) of the basic regulation, in so far as the Commission did not take into account prices negotiated with independent customers and did not compare prices at the same level of trade
65In the first place, the applicant claims that the Commission disregarded the Court’s case-law according to which the exporting producer’s price used to calculate the undercutting margin, which is also used to calculate the underselling margin and, consequently, to determine the injury margin, should be established on the basis of the prices actually charged by the exporting producer on the Union market in competition with the Union producers’ prices. In that regard, the applicant refers to the judgments of 30 November 2011, Transnational Company ‘Kazchrome’ and ENRC Marketing v Council and Commission (T‑107/08, EU:T:2011:704, paragraphs 62 and 63), and of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234, paragraph 187). The applicant submits that the export price constructed in the present case represents only a fraction of the price actually charged by HAG, HEF and HIB to their independent customers.
66According to the applicant, in order to comply with the Court’s case-law, the Commission should have compared the actual prices for UAN sold by HAG, HEF and HIB to their independent customers in the European Union with the selling price and target price applied by the Union producers to their independent customers in the European Union. Those are the prices that are considered by the independent customers in the European Union when deciding whether to purchase UAN from HAG, HEF and HIB or from the Union producers and their related traders. It is only at that stage that competition occurs between UAN produced by the applicant and UAN produced by the Union producers, since the first independent customer would not be aware of the internal organisational group structure of the seller and could not have estimated the price at an earlier stage. Furthermore, the applicant states that the relevant ‘point of competition’ for calculating the undercutting and underselling margins should be the price charged to independent customers in the ports of Ghent and Rouen.
67In the second place, the applicant submits that the methodology applied by the Commission to calculate the undercutting and underselling margins infringes Article 3(2), (3) and (5) to (8) of the basic regulation. According to the applicant, by comparing an artificially constructed price between it and HAG with the prices charged by the Union producers to their first independent customers, the Commission did not compare prices at the same level of trade. Rather, the Commission should have compared the prices of the product concerned charged by HAG, HEF and HIB to their independent customers in the European Union with the prices of the product concerned charged by the Union producers and their related companies to their independent customers in the European Union.
68In the third place, the applicant claims that the methodology applied by the Commission infringes the principle of equal treatment in the calculation of undercutting and underselling margins, since it treats in the same way the situation in which exporting producers have established related selling entities in the European Union and that in which they sell their goods directly to independent customers in the European Union.
69Moreover, the flaw in the calculation of the exporting producer’s price used in the undercutting margin determination also necessarily vitiates the underselling margin determination, since the same exporting producer’s price is used in both calculations. Similarly, at the stage of the reply, the applicant claims that the error in the price undercutting determination also invalidates the Commission’s findings concerning price depression and price suppression, and those errors in turn undermine all the Commission’s findings concerning injury and causation.
70The Commission, supported by the interveners, disputes the applicant’s arguments.
71In that regard, it is appropriate to examine together the complaints alleging infringement of the case-law and of Article 3(2), (3) and (5) to (8) of the basic regulation and then to examine the complaint alleging infringement of the principle of equal treatment.
72As a preliminary point, it should be noted that, in paragraph 176 of the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), the Court held that:‘The calculation of the price undercutting of the imports in question is carried out, in accordance with Article 3(2) and (3) of the basic regulation, for the purposes of determining the existence of injury suffered by the Union industry by reason of those imports and it is used, more broadly, to assess that injury and to determine the injury margin, namely the injury elimination level. The obligation to carry out an objective examination of the impact of the dumped imports, as set out in Article 3(2) of the basic regulation, requires a fair comparison to be made between the price of the product concerned and the price of the like product of that industry when sold in the territory of the Union. In order to guarantee the fairness of that comparison, prices must be compared at the same level of trade. A comparison of prices obtained at different levels of trade, that is to say, one which does not include all the costs relating to the level of trade which must be taken into account, would necessarily be misleading in its results and would not allow a correct assessment to be made of the injury to the Union industry. Such a fair comparison is a prerequisite of the lawfulness of the calculation of the injury to that industry.’
73In paragraphs 188 and 189 of the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), the Court added:‘188 It follows from the foregoing considerations that, since the Commission took into consideration the prices of sales made by the selling entities linked to the main Union producer in order to determine the price of the like product of the Union industry while not taking into account the prices of sales of Jindal Saw’s selling entities to determine the price of the product concerned produced by Jindal Saw, it cannot be considered that the undercutting calculation was made by comparing prices at the same level of trade.189 … the price comparison at the same level of trade constitutes a prerequisite of the lawfulness of the calculation of the price undercutting of the product concerned. Accordingly, the calculation of the undercutting as carried out by the Commission in the context of the contested regulation must be considered contrary to Article 3(2) of the basic regulation.’
74In the present case, it follows from a combined reading of recitals 112 and 114 of the contested implementing regulation that, in the undercutting calculation carried out at the provisional stage and used as the main basis for the definitive calculation, the Commission, with regard to the exporting producers, reduced the prices of their sales in the European Union by the amount of SG&A expenses and profit of their related trading companies in the European Union, but made no such deduction for Union industry sales via related traders, which represented 40% of the Union industry sample’s sales used for the comparison.
75As is apparent from paragraph 176 of the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), the comparison of the prices of the product concerned and the like product of the Union industry at the same level of trade constitutes a prerequisite of the lawfulness of the calculation of the price undercutting of the product concerned. Therefore, the undercutting calculation carried out by the Commission must be considered contrary to Article 3(2) of the basic regulation.
76It follows that the methodology of calculating price undercutting applied by the Commission at the provisional stage and used as the main basis for the definitive calculation is incorrect. As far as the applicant is concerned, those calculations showed undercutting of 5%.
77That appears to be confirmed by recital 113 of the contested implementing regulation, which reads as follows:‘With regard to [the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234)], the General Court found an error in that the Commission deducted the selling expenses of Jindal’s related importers in the Union from the sales to the first independent buyer, while the selling expenses of the Union industry related selling entities were not deducted from the Union industry sales prices to the first independent customer. The Court therefore considered that the two prices were not compared symmetrically at the same level of trade.’
78However, after noting, in recitals 112 and 113 of the contested implementing regulation, that some parties called into question the methodology applied in the light of the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), the Commission added, in recital 114 of that implementing regulation, that it intended to take account of that judgment, by supplementing its undercutting calculations with two calculations, the first of which is set out in the last sentence of that recital and the second of which, carried out in the alternative, is set out in recital 115 of that implementing regulation.
79The Court must therefore examine whether the methodology used by the Commission in recitals 112 to 115 of the contested implementing regulation to assess the injury to the Union industry and the application of that methodology are not vitiated by any error.
80First, with regard to the first additional undercutting calculation, as is apparent from recital 114 of the contested implementing regulation, the Commission found that, given that a minority of the Union industry’s sales were made through related parties and that the SG&A expenses and profit of those related parties were low, the finding of undercutting for the cumulated imports would not be undermined even if the calculations had to be adjusted for those factors. Moreover, it found that deducting the SG&A expenses and profit of the Union producers’ related selling entities would still show undercutting for all exporting producers (but for one), and in any event there would be undercutting for each of the countries concerned.
81As far as the applicant is concerned, it is apparent from the definitive findings disclosed to it by the Commission during the administrative procedure that that first additional calculation showed price undercutting of 2.6%.
82It follows that, by that calculation, the Commission found and stated reasons for the existence of price undercutting calculated in compliance with the requirement of an objective and fair comparison, since, by deducting SG&A expenses and profit from the selling prices charged by the Union producers’ related entities, it brought the prices used for the Union producers to the same level of trade as those of the exporting producers, thereby ruling out any infringement of the principle of equal treatment.
83The calculation in question was disputed by the applicant only at the stage of the reply. Moreover, the applicant merely claimed that the Union industry’s selling price had been compared with an artificially constructed and theoretical price between it and HAG, on the ground that that price did not include the same pricing components. In that regard, the applicant states that ‘in order to sell to the same customers as those of the Union industry, an amount of SG&A [expenses] and profit are incurred by HAG, HEF and HIB’ and that, ‘it is these entities, and not [the applicant], who sold UAN to the same customers as those of the Union industry’.
84Such a criticism, even if it were admissible failing any mention of it in the application and despite its lack of clarity, is not capable of calling into question the finding made by the Commission in recital 114 of the contested implementing regulation.
85Even if that criticism is intended to challenge the level of trade at which the Commission compared the prices of the Union industry and of the applicant for the purposes of determining whether there was price undercutting, the requirement of an objective and fair comparison does not prejudge the level of trade at which the Commission must compare prices, but means only that that comparison must be made at the same level of trade with regard to both the prices of the Union producers and those of the exporting producers.
86Furthermore, turning from the objectivity and fairness of the Commission’s methodology to its implementation, that methodology involves an appraisal of complex economic situations, for which reason judicial review of the Commission’s appraisal is 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, to that effect, judgment of 7 April 2016, ArcelorMittal Tubular Products Ostrava and Others v Hubei Xinyegang Steel, C‑186/14 P and C‑193/14 P, EU:C:2016:209, paragraph 34 and the case-law cited).
87Next, in so far as the applicant claims that that calculation is contrary to paragraphs 62 and 63 of the judgment of 30 November 2011, Transnational Company ‘Kazchrome’ and ENRC Marketing v Council and Commission (T‑107/08, EU:T:2011:704), it should be noted that, in paragraph 63 of that judgment, the Court stated that the customers were aware of transport costs from the port of customs clearance to their factories and could, therefore, easily calculate the final price from the CIF prices negotiated with them at the port of customs clearance. In the present case, by contrast, the applicant has not demonstrated that customers purchasing from related entities were aware of the relationship between the exporting producers and their related entities.
88In addition, the judgment of 30 November 2011, Transnational Company ‘Kazchrome’ and ENRC Marketing v Council and Commission (T‑107/08, EU:T:2011:704), did not concern a situation such as that in the present case, in which the Commission deducted SG&A expenses and profit from the exporting producers’ prices of sales made through related entities.
89Lastly, from the same perspective as in paragraph 85 above, it is not apparent from the judgment of 30 November 2011, Transnational Company ‘Kazchrome’ and ENRC Marketing v Council and Commission (T‑107/08, EU:T:2011:704), that the Court ruled out, in general terms, the possibility of taking into consideration, for the purposes of calculating undercutting, CIF landed prices at the exporting producers’ ports of customs clearance.
90Second, with regard to the second additional undercutting calculation examined in the alternative by the Commission, it is apparent from recital 115 of the contested implementing regulation that the Commission excluded from that calculation the Union industry sales through related parties. Consequently, that calculation relates to approximately 60% of the sales of the parties included in the EU sample. As far as the applicant is concerned, that calculation showed undercutting of 6.3%.
91In so far as the Commission’s first additional undercutting calculation established, to the requisite legal standard, the existence of price undercutting and in so far as the second additional undercutting calculation, carried out in the alternative, does not call into question the existence of the price undercutting as found by the Commission’s first additional undercutting calculation, the second additional undercutting calculation also cannot validly be relied on to call into question the lawfulness of the contested implementing regulation.
92In any event, the applicant cannot validly claim that the comparison of the prices of the Union producers and those of the exporting producers was not carried out at the same level of trade. As is apparent from recital 115 of the contested implementing regulation, the Commission in no way compared the Union industry’s sales to independent customers, on the one hand, with the applicant’s sales to related parties, on the other, since it took into account sales made by the exporting producers to independent customers, duly adjusted to CIF level. Moreover, the applicant does not dispute that point.
93Lastly, the applicant has not shown that the adjusted price of the exporting producers does not include the same price components as those of the Union producers. As the Commission has pointed out, the SG&A expenses and profit of the related selling entities were not taken into consideration at any point in the comparison.
94It follows that the Commission’s findings relating to the existence of undercutting, based on the two additional undercutting calculations, are not vitiated by any error of law or manifest error of assessment.
95Furthermore, it should be noted that, in addition to establishing the existence of undercutting, the Commission’s investigation also showed that, in any event, the effect of the dumped imports was to cause price suppression on the Union market during the investigation period (recitals 117, 125 and 131 of the contested implementing regulation) and price depression (recitals 136, 161 and 181 of that implementing regulation). Those indicators, although subsidiary in the Commission’s injury analysis, and thus the causation analysis, supplement its examination of the effects on prices and corroborate its conclusion that the Union industry had suffered material injury within the meaning of Article 3(5) of the basic regulation.
96In the present case, the applicant has not stated in the application the reasons why the finding relating to price depression or price suppression entails a manifest error of assessment, or that the error allegedly made as regards the undercutting margin had an impact on those two factors. Moreover, the terms ‘depression’ and ‘suppression’ are not mentioned anywhere in the application. It was only at the stage of the reply that a complaint concerning the Commission’s findings on price depression and price suppression was raised by the applicant (see paragraph 69 above).
97That new complaint is not based on any matter of fact or of law which came to light in the course of the procedure before the Court, since those matters are clear from the contested implementing regulation, so that that complaint could and should have been set out in the application.
98In that regard, it should be borne in mind that, according to settled case-law, under Article 84(1) of the Rules of Procedure of the General Court, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. However, a plea which constitutes an amplification of a plea previously made, either expressly or by implication, in the original application and is closely linked to it must be declared admissible. In order to be regarded as an amplification of a plea or complaint previously set out, a new argument must present a sufficiently close connection with the pleas or complaints put forward initially in the application to be considered as forming part of the normal evolution of debate in proceedings before the Court (see, to that effect, judgments of 16 November 2011, Groupe Gascogne v Commission, T‑72/06, not published, EU:T:2011:671, paragraphs 23 and 27; of 22 April 2016, Italy and Eurallumina v Commission, T‑60/06 RENV II and T‑62/06 RENV II, EU:T:2016:233, paragraphs 45 and 46; and of 20 November 2017, Petrov and Others v Parliament, T‑452/15, EU:T:2017:822, paragraph 46).
99It follows that that new complaint must be declared inadmissible.
100In any event, even if the applicant’s arguments were intended to call into question the Commission’s examination of price depression and price suppression, they must be rejected as unfounded, since those arguments are closely linked to the finding of an error in the determination of price undercutting.
101Since the Court held that the determination of price undercutting was not incorrect, the applicant’s arguments on that point must be rejected.
102Accordingly, even if the Commission erred in its provisional calculation of the undercutting margin, it must be held that the additional factors taken into consideration by the Commission in its examination of the effects on prices had the effect of neutralising that error.
103As regards the calculation of the underselling margin, it is apparent from recital 189 of the contested implementing regulation that that margin was set using the cost of production of the Union producers. No other costs were added to the factory costs to cover the costs of the related sales companies, if any, of the Union industry. Consequently, the error found by the Court in paragraphs 74 to 76 above is not present in the case of the underselling margin and the applicant’s claim calling that calculation into question must be rejected.
104Lastly, with regard to the infringement of the principle of equal treatment alleged by the applicant, it should be recalled that, in the present case, to calculate the export price of the exporting producers in connection with the calculation of price undercutting, the Commission deducted SG&A expenses and profit from the selling prices charged by the related entities in order to ensure an objective and fair comparison of the prices of the Union producers with those of the exporting producers, bringing them to the same level of trade in the first additional undercutting calculation, in accordance with its obligations (see, to that effect, judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑301/16, EU:T:2019:234, paragraph 176).
105Accordingly, since the Commission complied with the requirement of an objective and fair comparison at the same level of trade, the Court cannot find that the principle of equal treatment was infringed.
106It follows from all the foregoing considerations that this part of the plea must be rejected.
The third part of the single plea, alleging that the anti-dumping duty exceeds what is adequate to remove the injury to the Union industry, in breach of Article 9(4) of the basic regulation
107The applicant submits that, in the light of the unlawful calculation of the underselling margin, the amount of the anti-dumping duty, which is based on the margin adequate to remove the injury to the Union industry, was set higher than the level necessary to remove that injury, in breach of Article 9(4) of the basic regulation.
108The Commission, supported by the interveners, disputes the applicant’s arguments.
109In that regard, it is sufficient to note that, in so far as the first two parts of the single plea have been rejected as unfounded, the third part of that plea must consequently also be rejected, in so far as it is based on an incorrect premiss.
110In the light of all of the foregoing, the single plea must be rejected and the action must be dismissed in its entirety. There is no need to rule on the admissibility of the supplementary pleading, which was duly taken into account.
Costs
111Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by the Commission and the interveners.
Operative part
On those grounds,THE GENERAL COURT (Eighth Chamber, Extended Composition)hereby:
1.Dismisses the action;
2.Orders Methanol Holdings (Trinidad) Ltd to bear its own costs and to pay the costs incurred by the European Commission, by Achema AB, by Grupa Azoty S.A. and by Grupa Azoty Zakłady Azotowe Puławy S.A.
Delivered in open court in Luxembourg on 14 September 2022.
Source: EUR-Lex, © European Union, 1998-2026. Reuse authorised under Decision 2011/833/EU.