European Commission v Sinopec Chongqing SVW Chemical Co. Ltd and Others (C-319/24 P)

Contents

Judgment of the Court (Fifth Chamber)3 September 2026^note(Appeal — Dumping — Implementing Regulation (EU) 2020/1336 — Imports of certain polyvinyl alcohols originating in China — Definitive anti-dumping duty — Regulation (EU) 2016/1036 — Article 2(6a) — Construction of the normal value due to significant distortions in the exporting country — Article 2(10) — Fair comparison between the export price and the normal value at the same level of trade — Ex-factory level — Adjustments to the export prices or the normal value — Costs incurred after the ex-factory level — Non-refundable value added tax (VAT) — Trader carrying out functions similar to those of an agent working on a commission basis — Burden of proof — Prohibition on imposing an unreasonable burden of proof — Article 18 — Non-cooperation — Impossibility of determining the normal value — Facts available — Decision to use, as facts available, the highest normal values of the other exporting producers that cooperated in the investigation — Margin of discretion of the European Commission)In Case C‑319/24 P,APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 30 April 2024,European Commission, represented initially by G. Gattinara, G. Luengo and J. Zieliński, subsequently by G. Gattinara, L. Di Masi and J. Zieliński and, lastly, by G. Gattinara and J. Zieliński, acting as Agents,the other parties to the proceedings being:Sinopec Chongqing SVW Chemical Co. Ltd, established in Chongqing (China),Sinopec Great Wall Energy & Chemical (Ningxia) Co. Ltd, established in Lingwu (China),Central-China Company, Sinopec Chemical Commercial Holding Co. Ltd, established in Wuhan (China),represented by J. Cornelis, F. Graafsma and E. Vermulst, advocaten,European Parliament,Council of the European Union,Kuraray Europe GmbH, established in Hattersheim am Main (Germany), represented by R. MacLean, avocat, and D. Sevilla Pascual, abogado,Sekisui Specialty Chemicals Europe SL,Wegochem Europe BV, established in Amsterdam (Netherlands), represented by R. Antonini, avvocato, B. Maniatis, E. Monard, avocats, and E. Zachari, dikigoros,THE COURT (Fifth Chamber),composed of M.L. Arastey Sahún, President of the Chamber, J. Passer, E. Regan, D. Gratsias and B. Smulders (Rapporteur), Judges,Advocate General: A. Biondi,Registrar: M. Aleksejev, Head of Unit,having regard to the written procedure and further to the hearing on 8 October 2025,after hearing the Opinion of the Advocate General at the sitting on 5 February 2026,gives the following

Judgment

1By its appeal, the European Commission seeks to have set aside the judgment of the General Court of the European Union of 21 February 2024, Sinopec Chongqing SVW Chemical and Others v Commission (T‑762/20, ‘the judgment under appeal’, EU:T:2024:113), by which the General Court annulled Commission Implementing Regulation (EU) 2020/1336 of 25 September 2020 imposing definitive anti-dumping duties on imports of certain polyvinyl alcohols originating in the People’s Republic of China (OJ 2020 L 315, p. 1; ‘the regulation at issue’), to the extent that it concerns Sinopec Chongqing SVW Chemical Co. Ltd (‘Sinopec Chongqing’), Sinopec Great Wall Energy & Chemical (Ningxia) Co. Ltd (‘Sinopec Ningxia’) and Central-China Company, Sinopec Chemical Commercial Holding Co. Ltd (‘Sinopec Central-China’) (together, ‘the undertakings in the Sinopec Group’), in so far as, in calculating the rate of the anti-dumping duty affecting imports into the European Union of polyvinyl alcohols (‘PVA’) manufactured and sold by them, the Commission made downward adjustments to the export price under Article 2(10)(e), (g), (i) and (k) 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), as amended by Regulation (EU) 2017/2321 of the European Parliament and of the Council of 12 December 2017 (OJ 2017 L 338, p. 1) (‘the basic regulation’).

2By their cross-appeal, the undertakings in the Sinopec Group seek to have the judgment under appeal set aside in part, in so far as it upheld the upward adjustment to the normal value made by the Commission, on the basis of Article 2(10)(b) of the basic regulation, by the amount of the non-recoverable value added tax (VAT) included in the export price.

Legal context

International law

3By Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1), the Council of the European Union approved the Agreement establishing the World Trade Organisation (WTO), signed in Marrakesh on 15 April 1994, and also the agreements in Annexes 1 to 3 to that agreement, which include the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (OJ 1994 L 336, p. 103; ‘the anti‑dumping agreement’).

4Article 2 of the anti-dumping agreement, entitled ‘Determination of Dumping’, provides, in paragraphs 3 and 4 thereof:2.3 In cases where there is no export price or where it appears to the authorities concerned that the export price is unreliable because of association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported products are first resold to an independent buyer, or if the products are not resold to an independent buyer, or not resold in the condition as imported, on such reasonable basis as the authorities may determine.2.4 A fair comparison shall be made between the export price and the normal value. This comparison shall be made at the same level of trade, normally at the ex-factory level, and in respect of sales made at as nearly as possible the same time. Due allowance shall be made in each case, on its merits, for differences which affect price comparability, including differences in conditions and terms of sale, taxation, levels of trade, quantities, physical characteristics, and any other differences which are also demonstrated to affect price comparability. … In the cases referred to in paragraph 3, allowances for costs, including duties and taxes, incurred between importation and resale, and for profits accruing, should also be made. If in these cases price comparability has been affected, the authorities shall establish the normal value at a level of trade equivalent to the level of trade of the constructed export price, or shall make due allowance as warranted under this paragraph. The authorities shall indicate to the parties in question what information is necessary to ensure a fair comparison and shall not impose an unreasonable burden of proof on those parties.’

5Article 6 of that agreement, entitled ‘Evidence’, provides, in paragraph 8 thereof:‘In cases in which any interested party refuses access to, or otherwise does not provide, necessary information within a reasonable period or significantly impedes the investigation, preliminary and final determinations, affirmative or negative, may be made on the basis of the facts available. The provisions of Annex II shall be observed in the application of this paragraph.’

6Annex II to the anti-dumping agreement, entitled ‘Best Information Available in Terms of Paragraph 8 of Article 6’, provides, in paragraph 7 thereof:‘If the authorities have to base their findings, including those with respect to normal value, on information from a secondary source, including the information supplied in the application for the initiation of the investigation, they should do so with special circumspection. In such cases, the authorities should, where practicable, check the information from other independent sources at their disposal, such as published price lists, official import statistics and customs returns, and from the information obtained from other interested parties during the investigation. It is clear, however, that if an interested party does not cooperate and thus relevant information is being withheld from the authorities, this situation could lead to a result which is less favourable to the party than if the party did cooperate.’

European Union law

7Article 1 of the basic regulation provides:1. An anti-dumping duty may be imposed on any dumped product whose release for free circulation in the Union causes injury.2. A product is to be considered as being dumped if its export price to the Union is less than a comparable price for a like product, in the ordinary course of trade, as established for the exporting country.…’

8Article 2 of that regulation, entitled ‘Determination of dumping’, provides:‘A. Normal value…6a.(a) In case it is determined, when applying this or any other relevant provision of this Regulation, that it is not appropriate to use domestic prices and costs in the exporting country due to the existence in that country of significant distortions within the meaning of point (b), the normal value shall be constructed exclusively on the basis of costs of production and sale reflecting undistorted prices or benchmarks, subject to the following rules.The sources the Commission may use include:– corresponding costs of production and sale in an appropriate representative country with a similar level of economic development as the exporting country, provided the relevant data are readily available; ……The constructed normal value shall include an undistorted and reasonable amount for administrative, selling and general costs and for profits.(b) Significant distortions are those distortions which occur when reported prices or costs, including the costs of raw materials and energy, are not the result of free market forces because they are affected by substantial government intervention. …(c) Where the Commission has well-founded indications of the possible existence of significant distortions as referred to in point (b) in a certain country or a certain sector in that country, and where appropriate for the effective application of this Regulation, the Commission shall produce, make public and regularly update a report describing the market circumstances referred to in point (b) in that country or sector. ……B. Export price…C. Comparison10.A fair comparison shall be made between the export price and the normal value. This comparison shall be made at the same level of trade and in respect of sales made at, as closely as possible, the same time and with due account taken of other differences which affect price comparability. Where the normal value and the export price as established are not on such a comparable basis, due allowance, in the form of adjustments, shall be made in each case, on its merits, for differences in factors which are claimed, and demonstrated, to affect prices and price comparability. Any duplication when making adjustments shall be avoided, in particular in relation to discounts, rebates, quantities and level of trade. When the specified conditions are met, the factors for which adjustment can be made are listed as follows:…(b) Import charges and indirect taxesAn adjustment shall be made to the normal value for an amount corresponding to any import charges or indirect taxes borne by the like product and by materials physically incorporated therein, when intended for consumption in the exporting country and not collected or refunded in respect of the product exported to the Union.…(i) CommissionsAn adjustment shall be made for differences in commissions paid in respect of the sales under consideration.The term “commissions” shall be understood to include the mark-up received by a trader of the product or the like product if the functions of such a trader are similar to those of an agent working on a commission basis.…(k) Other factorsAn adjustment may also be made for differences in other factors not provided for under points (a) to (j), if it is demonstrated that they affect price comparability as required under this paragraph, in particular if customers consistently pay different prices on the domestic market because of the difference in such factors.’

9Under Article 18 of the basic regulation, entitled ‘Non-cooperation’:1. In cases in which any interested party refuses access to, or otherwise does not provide, necessary information within the time limits provided for in this Regulation, or significantly impedes the investigation, provisional or final findings, affirmative or negative, may be made on the basis of the facts available.Where it is found that any interested party has supplied false or misleading information, that information shall be disregarded and use may be made of facts available.Interested parties shall be made aware of the consequences of non-cooperation.…5. If determinations, including those regarding normal value, are based on the provisions of paragraph 1, including the information supplied in the complaint, it shall, where practicable and with due regard to the time limits of the investigation, be checked by reference to information from other independent sources which may be available, such as published price lists, official import statistics and customs returns, or information obtained from other interested parties during the investigation.…6. If an interested party does not cooperate, or cooperates only partially, so that relevant information is thereby withheld, the result of the investigation may be less favourable to the party than if it had cooperated.…’

Background to the dispute

10For the purposes of the present appeal, the background to the dispute, as set out in paragraphs 2 to 12 of the judgment under appeal, may be summarised as follows.

11Sinopec Chongqing and Sinopec Ningxia are Chinese undertakings which produce PVA, while Sinopec Central-China is a Chinese undertaking that is related to Sinopec Chongqing and Sinopec Ningxia and exports the products manufactured by them in particular to the European Union.

12On 18 June 2019, Kuraray Europe GmbH (‘Kuraray’), a PVA producer representing more than 60% of total EU production, lodged a complaint with the Commission. Accordingly, the Commission published a notice of initiation of an anti-dumping proceeding concerning imports of certain PVA originating in China.

13The investigation of dumping and resulting injury covered the period from 1 July 2018 to 30 June 2019.

14Following a number of written exchanges with the undertakings in the Sinopec Group and other undertakings covered by its investigation, on 3 July 2020, the Commission sent the undertakings in the Sinopec Group the final disclosure provided for in Article 20 of the basic regulation (‘final disclosure’). Following further written exchanges and a hearing with the Commission on 17 July 2020, the undertakings in the Sinopec Group submitted their comments on final disclosure on 20 July 2020. On 24 July 2020, the Commission sent an additional final disclosure to the undertakings in the Sinopec Group. On 29 July 2020, those undertakings submitted comments on that additional disclosure.

15By the regulation at issue, the Commission imposed a definitive anti-dumping duty on imports of certain PVA originating in China and established that the rate of the definitive anti-dumping duty applicable to the net free-at-Union-frontier price, before duty, was to be 17.3% for the undertakings in the Sinopec Group.

16On the basis of a country report concerning China, which the Commission had published pursuant to Article 2(6a)(c) of the basic regulation, that institution found, in the regulation at issue, that there were ‘significant distortions’, within the meaning of Article 2(6a)(b) of the basic regulation, in that third country, which led it to construct the normal value in accordance with the method laid down in Article 2(6a)(a) of that regulation. Thus, the Commission calculated the normal value in three steps, the first of which consisted in establishing the undistorted costs of manufacturing as regards PVA. To that end, it applied the undistorted unit costs of the Turkish producer Ilkalem Ticaret Ve Sanayi A.S. (‘Ilkalem’) – the producer in the representative country which the Commission had selected – to the actual consumption of the individual factors of production reported by each exporting producer that cooperated in the investigation. The second step led the Commission to increase the undistorted costs of manufacturing by adding the manufacturing overheads thereto, in order to arrive at the undistorted costs of production. Lastly, as a third step, it added to those costs of production the administrative, selling and general costs (‘SG&A costs’) and profits of the Turkish producer Ilkalem in an amount which it considered to be undistorted and reasonable.

17In addition, as regards Sinopec Ningxia, the Commission identified some substantial and serious deficiencies in the data provided in relation to costs of production. Accordingly, when constructing the normal value of the products manufactured by Sinopec Ningxia, pursuant to Article 2(6a) of the basic regulation, that institution applied Article 18(1) of that regulation, which led it to rely on the ‘facts available’. The normal value of the products manufactured by Sinopec Ningxia was thus calculated on the basis of information provided by other exporting producers and, for each type of PVA concerned, the Commission used the highest of the constructed normal values of the other exporting producers.

18Moreover, when comparing the normal value of the products manufactured by the undertakings in the Sinopec Group with their export price, the Commission made adjustments under Article 2(10)(b) and (i) of the basic regulation. First, it increased the normal value in order to take account of the difference in indirect taxes between export sales from China to the European Union and the normal value where indirect taxes such as VAT had been excluded. Second, it reduced the export price because the sales in the European Union of PVA produced by Sinopec Chongqing and Sinopec Ningxia were made through Sinopec Central-China, which had to be considered not as an internal sales department, but rather as a trader whose functions are similar to those of an agent working on a commission basis. Furthermore, the Commission also made downward adjustments to the export price, deducting insurance costs, transport, handling and loading expenses, credit costs and bank charges (‘the costs at issue’) from it in order to establish an export price at the ‘ex-works’ level.

The procedure before the General Court and the judgment under appeal

19By application lodged at the Registry of the General Court on 22 December 2020, the undertakings in the Sinopec Group brought an action seeking the annulment of the regulation at issue.

20Wegochem Europe BV (‘Wegochem’) was granted leave to intervene in support of the form of order sought by those undertakings, while the European Parliament, the Council, Kuraray and Sekisui Specialty Chemicals Europe SL were granted leave to intervene in support of the form of order sought by the Commission.

21In support of their action, the undertakings in the Sinopec Group put forward five pleas in law, the first alleging that the application of Article 2(6a) of the basic regulation was inconsistent with the obligations arising from WTO law; the second alleging infringement of Article 2(10) of the basic regulation and a manifest error of assessment; the third alleging infringement of Article 18(1) and (5) of the basic regulation and of Article 6.8 of the anti-dumping agreement and Annex II to that agreement; the fourth alleging infringement of Article 3(2) and (3) of the basic regulation when establishing price undercutting, and infringement of Article 3(6) of that regulation; and the fifth alleging infringement of the rights of the defence.

22Only the second and third pleas in law put forward at first instance need be recalled for the purpose of examining the appeal and the cross-appeal.

23The second plea, alleging infringement of Article 2(10) of the basic regulation and a manifest error of assessment, consisted of three parts, the first alleging infringement of Article 2(10)(i) of the basic regulation and a manifest error of assessment, the second alleging infringement of the introductory part of Article 2(10) of that regulation, and the third alleging infringement of Article 2(10)(b) of that regulation.

24In paragraphs 60 to 113 of the judgment under appeal, the General Court, relying on the case-law of the Court of Justice relating to Article 2(10)(i) of the basic regulation and, in particular, on the guidance stemming from the judgment of 26 October 2016, PT Musim Mas v Council (C‑468/15 P, EU:C:2016:803), upheld the first part of that second plea, on the ground, in essence, that, in the regulation at issue, the Commission, which bore the burden of proof in relation to the adjustment made by it under that provision, had not established, to the requisite legal standard, the existence of a body of consistent evidence that would demonstrate that Sinopec Central-China, as a distributor related to the exporting producers concerned, was performing functions similar to those of an agent working on a commission basis or that would preclude its classification as an internal sales department. The General Court reached that conclusion after having examined in turn the five items of evidence put forward by the Commission in the regulation at issue which, according to that institution, justified making that adjustment and after having inferred, in the context of an overall assessment of the facts, that the second and third items of evidence were not sufficient to constitute such a body of consistent evidence.

25In paragraphs 124 to 139 of the judgment under appeal, the General Court also upheld the second part of the second plea.

26First, the General Court held that it was for the Commission, since it had chosen to make the comparison at issue at the ‘ex-works’ level, to demonstrate that adjustments to establish that level of the export price were necessary in order for the comparison of that price and the normal value to be fair.

27Second, the General Court pointed out that, in their comments on final disclosure, the undertakings in the Sinopec Group had claimed that, ‘in all likelihood’, the costs at issue were included in the constructed normal value, more specifically in the SG&A costs which had been taken into account by the Commission in determining that value, and that they had therefore asked that institution either not to deduct the costs at issue from the export price or to make a downward adjustment to the normal value by deducting those costs from it.

28According to the General Court, when faced with such a duly substantiated request to make adjustments, it was incumbent on the Commission, first, to indicate to the undertakings in the Sinopec Group the information which was necessary to ensure a fair comparison between the normal value and the export price and, second, not to impose an unreasonable burden of proof on them.

29The General Court held that, in the present case, the Commission had imposed an unreasonable burden of proof on those undertakings. The Commission admitted that it did not have a more precise breakdown of the SG&A costs of the Turkish producer Ilkalem which it had selected in order to construct the normal value on the basis of Article 2(6a) of the basic regulation, with the result that it could not be ruled out that the costs at issue were included in those SG&A costs, for example, as ‘other operating expenses’. Accordingly, it found that the Commission could not reasonably require those undertakings, which had asked that institution to make adjustments regarding the costs at issue in order to ensure that the comparison between the export price and the normal value would be fair, to substantiate their request further by producing data relating to an unrelated party that were more precise than the data held by the Commission.

30In the context of the third part of their second plea, the undertakings in the Sinopec Group criticised the Commission, by the first complaint of that part, for having adjusted the normal value upwards on the basis of Article 2(10)(b) of the basic regulation, in order to reflect the difference between the VAT rate payable and the VAT refund rate upon exportation. By their second complaint, they claimed that, in any event, the level at which that adjustment had been set by the Commission was excessive.

31In paragraphs 144 to 159 of the judgment under appeal, the General Court rejected that first complaint.

32After noting that it was in recitals 387 and 388 of the regulation at issue that the Commission had set out the reasons why it considered it necessary to make an adjustment under Article 2(10)(b) of the basic regulation, the General Court, in paragraphs 153 to 155 of the judgment under appeal, inferred from two documents, each entitled ‘Verification report’ and produced by the Commission following a question put by the General Court, that recital 388 of the regulation at issue was to be understood as meaning that the Commission had found that the export price of the products of the undertakings in the Sinopec Group included an amount corresponding to the non-refundable VAT, whereas the normal value had been constructed net of VAT, and, moreover, that those circumstances justified an upward adjustment to the normal value, for the purpose of ensuring a fair comparison.

33However, the General Court held, in paragraphs 157 and 158 of the judgment under appeal, that the Commission had made an error of law in basing that adjustment on Article 2(10)(b) of the basic regulation, but that that error did not justify the annulment of the regulation at issue since, in this instance, the Commission could have made such an adjustment under another legal basis, namely that of Article 2(10)(k) of the basic regulation, in respect of which the General Court considered that the conditions for application were satisfied in the present case.

34By the second complaint in the third part of their second plea, the undertakings in the Sinopec Group submitted that, even if it were necessary to make an adjustment under Article 2(10)(b) of the basic regulation, the adjustment adopted in the regulation at issue was inflated. In paragraphs 162 to 164 of the judgment under appeal, the General Court rejected that complaint as having no factual basis.

35The General Court concluded on that basis that the first two parts of the second plea were well founded, while the third part was not.

36The third plea put forward by the undertakings in the Sinopec Group alleged infringement of Article 18(1) and (5) of the basic regulation and of Article 6.8 of the anti-dumping agreement and Annex II to that agreement, and consisted of two complaints, those undertakings having clarified that they did not dispute that the Commission was entitled to determine the normal value for Sinopec Ningxia on the basis of the ‘facts available’ within the meaning of Article 18 of the basic regulation.

37In paragraphs 166 to 174 of the judgment under appeal, the General Court rejected the first complaint which, besides, is not relevant to the assessment of the grounds put forward in the appeal and in the cross-appeal.

38By contrast, in paragraphs 175 to 221 of that judgment, the General Court upheld the second complaint in the context of which the undertakings in the Sinopec Group complained that the Commission, in the regulation at issue, had established the normal value for each product type manufactured by Sinopec Ningxia on the basis of the highest normal value, for the same product type, which it had calculated for the other exporting producers.

39In paragraph 187 of the judgment under appeal, the General Court recalled that, according to various reports of the WTO dispute settlement bodies, the use of ‘facts available’ under Article 6.8 of the anti-dumping agreement – a provision which corresponds to Article 18 of the basic regulation – was not intended to operate as a punishment for those parties that do not provide the information requested of them by the competent authority.

40First, the General Court held, in paragraphs 194 to 201 of the judgment under appeal, that the Commission was entitled to reject the data relating to Sinopec Chongqing as irrelevant for the purpose of determining those ‘facts available’, but that it was entitled to use the data relating to the other exporting producers for that purpose.

41Second, in paragraph 214 of the judgment under appeal, the General Court held that it was apparent from Article 18 of the basic regulation that it had not been the intention of the EU legislature to establish a legal presumption making it possible to infer directly from the non-cooperation of the interested parties that the normal value, per product type, was not below the highest, per product type, of the normal values of the other cooperating exporting producers, and thereby exempting the EU institutions from any requirement to adduce proof.

42In the present case, in recital 333 of the regulation at issue, the Commission had applied a presumption that Sinopec Ningxia’s normal value, per product type, was not below the highest, per product type, of the normal values of the other exporting producers.

43In paragraph 220 of the judgment under appeal, the General Court held that, in applying such a presumption, the Commission had therefore erred in law. It found that, according to the Commission’s reasoning, in order to be able to rebut that presumption, the undertakings in the Sinopec Group would have had to provide the Commission with the information the non-production of which specifically represented the factor that triggered the Commission’s use of the ‘facts available’ within the meaning of Article 18 of the basic regulation.

44On that basis, the General Court concluded that the third plea was well founded so far as concerned the second complaint of that plea, whereas it was not well founded as regards the first complaint thereof.

45Accordingly, the General Court annulled the regulation at issue to the extent that it concerns the undertakings in the Sinopec Group ‘in so far as, in calculating the rate of the anti-dumping duty affecting imports into the European Union of [certain PVA] manufactured and sold by them, the … Commission made downward adjustments to the export price under Article 2(10)(e), (g), (i) and (k) of [the basic regulation]’, and dismissed the action as to the remainder.

Forms of order sought by the parties before the Court of Justice

46By its appeal, the Commission claims that the Court should:– set aside the judgment under appeal, and– order the undertakings in the Sinopec Group to pay the costs of both sets of proceedings.

47Kuraray seeks a form of order similar to that sought by the Commission.

48The undertakings in the Sinopec Group contend that the Court should:– dismiss the appeal;– in the alternative, refer the case back to the General Court for reconsideration, and– order the Commission to pay the costs of both sets of proceedings.

49Wegochem seeks a form of order similar to that sought by the undertakings in the Sinopec group.

50By their cross-appeal, the undertakings in the Sinopec Group claim that the Court should:– principally:– set aside the judgment under appeal in so far as it upheld the adjustment to the normal value in respect of non-refundable VAT;– annul the regulation at issue in so far as it made an adjustment to the normal value in respect of non-refundable VAT, and– order the Commission to pay the costs of the present appeal, and– in the alternative:– refer the case back to the General Court, and– reserve the costs of both sets of proceedings.

51The Commission contends that the Court should:– dismiss the cross-appeal, and– order the undertakings in the Sinopec Group to pay the costs of both sets of proceedings.

52Kuraray seeks a form of order similar to that sought by the Commission.

The main appeal

53The Commission, supported by Kuraray, puts forward three grounds in support of its appeal. The first ground of appeal alleges infringement of Article 18 of the basic regulation. The second ground of appeal alleges infringement of Article 2(10) of that regulation, breach of the principle of good administration and distortion of the facts. The third ground of appeal alleges errors of law relating to the interpretation and application of Article 2(10)(i) of the basic regulation.

The first ground of appeal, alleging infringement of Article 18 of the basic regulation

Arguments of the parties

54By its first ground of appeal, the Commission, supported by Kuraray, submits that, in paragraphs 211 to 221 of the judgment under appeal, the General Court infringed Article 18 of the basic regulation in holding that the Commission had failed to comply with that provision by using, as ‘facts available’ within the meaning of that provision, the highest normal values of the other exporting producers for each product type in respect of which Sinopec Ningxia had failed to provide the information necessary for calculating their normal value.

55The Commission complains, in particular, that the General Court held that, in recitals 329 and 333 of the regulation at issue, it had, first, applied a ‘presumption’ that the normal value for each product type manufactured by Sinopec Ningxia was not below the highest normal value for each corresponding product type manufactured by the other exporting producers and, second, based that presumption solely on the lack of cooperation by Sinopec Ningxia.

56The Commission maintains that it did not rely on such a presumption, but rather drew an inference according to which the normal value for each product type manufactured by Sinopec Ningxia should be at least at the level of the highest normal value for each corresponding product type manufactured by the other cooperating exporting producers. It argues that it was entitled to draw that inference in view of the fact that Sinopec Ningxia, on several occasions, had failed to provide the missing data relating to its costs of production which were necessary for the calculation of the normal value of its products.

57The Commission submits that the General Court distorted the characterisation of the reasoning underlying recital 333 of the regulation at issue in holding that it had applied a presumption. Nowhere in its written pleadings at first instance did the Commission refer to any such presumption.

58In drawing a simple inference, the Commission maintains that it did not ‘penalise’ Sinopec Ningxia, but merely used information on file relating to other exporting producers.

59It further submits that it did not ensure that the replacement facts were the most adverse for Sinopec Ningxia among the various possible options. Only that undertaking would know whether the normal values used by the Commission to replace the missing information resulted in a less favourable outcome for it than that which it might have expected had it cooperated and provided the information necessary to enable the calculation of normal values for its different product types covered by the investigation.

60The Commission argues that, in the exercise of its broad margin of discretion in such matters, it is entitled to make reasonable substitutions for the missing information. It maintains that that is what it did in the present case.

61Wegochem contends that the first ground of appeal is inadmissible, since it seeks to call into question findings of fact made by the General Court, rather than points of law. In particular, the Commission seeks to call into question both the findings of fact which led the General Court to conclude that the Commission had applied the presumption referred to in paragraph 55 of the present judgment and the General Court’s findings of fact according to which, by selecting, as ‘facts available’ within the meaning of Article 18 of the basic regulation, the highest normal values of the other exporting producers for each product type in respect of which Sinopec Ningxia had failed to provide the information necessary for calculating their normal value, the Commission had penalised Sinopec Ningxia for not cooperating. As to the substance, the undertakings in the Sinopec Group, supported by Wegochem, contend that those arguments put forward by the Commission are unfounded.

62The undertakings in the Sinopec Group maintain that the Commission did not produce any evidence or provide any reasoning to support the systematic use of the highest normal value found per product type. According to them, the General Court was therefore correct in concluding that the Commission had applied a presumption that Sinopec Ningxia’s normal value, per product type, was not below the highest, per product type, of the normal values of the other exporting producers.

63The undertakings in the Sinopec Group also rely on a number of reports of WTO dispute settlement bodies from which it allegedly follows, first, that, in the context of determining the ‘facts available’ within the meaning of Article 6.8 of the anti-dumping agreement, investigating authorities are not entitled to draw unreasonable or unobjective inferences in order to punish a non-cooperating party and, second, that, although those authorities may draw reasonable inferences, they are nevertheless required to base that determination on additional supporting evidence, since inferences alone may not form the basis of a determination. They argue that, in the present case, the Commission failed to comply with that guidance derived from WTO law.

Findings of the Court

64As regards, in the first place, the admissibility of the first ground of appeal, it must be observed that, contrary to what Wegochem claims, that ground of appeal does not seek to call into question factual considerations, but rather raises a point of law, namely the interpretation of Article 18 of the basic regulation and, in particular, the limits of the Commission’s discretion in the selection of ‘facts available’, within the meaning of that provision, where an exporting producer does not cooperate, thereby making it impossible for the Commission to construct a normal value in relation to the products manufactured by that exporting producer, on the basis of its own costs of production.

65The first ground of appeal is therefore admissible.

66As regards, in the second place, the merits of that ground of appeal, it should be recalled, first of all, that, pursuant to the basic regulation, it is for the Commission, as the investigating authority, to establish that the product in question has been dumped, that there has been injury and that there is a causal link between the dumped imports and the injury. Those elements must be established objectively, following a reliable investigation. However, no provision in that regulation confers on the Commission any power to compel the interested parties to participate in the investigation or to provide information (judgment of 12 May 2022, Commission v Hansol Paper, C‑260/20 P, EU:C:2022:370, paragraph 47 and the case-law cited).

67Thus, the Commission does not, inter alia, have the power to impose fines in the event of non-cooperation in the context of an anti-dumping investigation, in contrast to its power to do so in the field of competition law.

68Therefore, when the Commission is investigating whether there is dumping and injury, it must, as a matter of priority, seek to obtain relevant information on the basis of voluntary cooperation on the part of the interested parties (see, to that effect, judgment of 12 May 2022, Commission v Hansol Paper, C‑260/20 P, EU:C:2022:370, paragraph 48).

69It is only when an interested party does not cooperate in the anti-dumping investigation by refusing to grant access to the necessary information, by failing to provide that information within the prescribed period, or by significantly impeding the investigation that, pursuant to Article 18(1) of the basic regulation, the Commission may make its findings on the basis of the ‘facts available’, within the meaning of that provision (see, to that effect, judgment of 12 May 2022, Commission v Hansol Paper, C‑260/20 P, EU:C:2022:370, paragraph 49 and the case-law cited).

70It should be added that Article 18(6) of the basic regulation further provides that, if an interested party does not cooperate, or cooperates only partially, so that relevant information is thereby withheld, ‘the result of the investigation may be less favourable to the party than if it had cooperated.’

71Next, given that Article 18 of the basic regulation contains provisions corresponding to those of Article 6.8 of the anti-dumping agreement and Annex II to that agreement, Article 18 must be interpreted, as far as possible, in a manner consistent with those provisions of that agreement, having regard to the primacy of international agreements concluded by the European Union over secondary EU legislation (see, to that effect, judgment of 28 April 2022, Yieh United Steel v Commission, C‑79/20 P, EU:C:2022:305, paragraph 101 and the case-law cited).

72In addition, for the purposes of interpreting and applying the provisions of the basic regulation, the Courts of the European Union must, as far as possible, take account of the interpretation of the corresponding provisions of the anti-dumping agreement by the WTO dispute settlement bodies (see, to that effect, judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 32 and the case-law cited).

73In the latter regard, it is apparent from paragraph 7.36 of the report of the WTO Panel of 21 January 2021 in the case United States – Anti-dumping and countervailing duties on certain products and the use of facts available (WT/DS539/R), relating to the interpretation of Article 6.8 of the anti-dumping agreement, that the terms of that provision, ‘interpreted in light of their context and object and purpose, require investigating authorities to select – in an unbiased and objective manner – those facts available that constitute reasonable replacements for the missing “necessary” information in the specific facts and circumstances of a given case. In doing so, investigating authorities must take into account all facts that are properly available to them. In selecting the replacement facts, Article 6.8 [of that agreement] does not require investigating authorities to select those facts that are most “favourable” to the non-cooperating party. Investigating authorities may take into account the procedural circumstances in which information is missing, but Article 6.8 does not condone the selection of replacement facts for the purpose of punishing interested parties.’

74Lastly, it should be noted that it is settled case-law that, in the sphere of the European Union’s 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 (judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 35 and the case-law cited).

75As the Advocate General stated, in essence, in point 32 of his Opinion, that broad discretion also extends to the choice of ‘facts available’ to be made by the Commission under Article 18(1) of the basic regulation in the event of non-cooperation by an operator, making it necessary to use reasonable replacement facts in place of the missing data.

76According to settled case-law, the judicial review of such an appraisal must therefore be limited to verifying whether relevant procedural rules have been complied with, whether the facts relied on 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 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 36 and the case-law cited).

77That being the case, the General Court must 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, to that effect, judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 37 and the case-law cited).

78In the present case, as is apparent from recitals 327 to 333 of the regulation at issue, to which paragraph 10 of the judgment under appeal refers, the data provided by Sinopec Ningxia contained some substantial and serious deficiencies in relation to the reporting of its own costs of production. Moreover, it is common ground that the Commission invited that operator, on several occasions, to provide it with the missing data. It is in those circumstances – which, besides, were not disputed before the General Court by the undertakings in the Sinopec Group – that the Commission, for the purpose of constructing the normal value of the products manufactured by Sinopec Ningxia under Article 2(6a) of the basic regulation, decided to use, as ‘facts available’ within the meaning of Article 18 of that regulation, the highest normal values of the other cooperating exporting producers for each of the product types or categories concerned by the investigation.

79It is apparent, in particular, from recital 333 of the regulation at issue that the Commission did not consider that approach to be punitive, but rather that, ‘since the Commission was unable to verify and therefore use the data supplied by Sinopec Ningxia for the construction of its normal value, there is no evidence suggesting that Sinopec Ningxia’s normal value per product type would be below the highest normal value per product type of the other cooperating [exporting] producers that use similar raw materials.’

80In that regard, it must be borne in mind that, in paragraph 221 of the judgment under appeal, the General Court upheld an argument put forward by the undertakings in the Sinopec Group in support of their third plea, by which they claimed that, by that approach, the Commission had penalised their non-cooperation, taking the view, in essence, that the Commission had thus applied an irrebuttable presumption, since, in order to rebut that presumption, those undertakings would have had to provide the Commission with the information the non-production of which had specifically triggered the use, by that institution, of the ‘facts available’ within the meaning of Article 18 of the basic regulation.

81It must be observed at the outset that, as the Advocate General also stated in point 38 of his Opinion and as the General Court held, in essence, in paragraph 214 of the judgment under appeal, given that it is possible, under Article 18 of the basic regulation, to make findings on the basis of the ‘facts available’ within the meaning of Article 18 of that regulation and to treat a party which does not cooperate or cooperates only partially less favourably than if it had cooperated, EU institutions are authorised to infer from the direct evidence of the facts which they have been able to establish on the basis of the information in their possession, indirect evidence of the facts which they are unable to verify as a result of the non-cooperation of the parties. Any other approach would risk undermining the efficiency of EU trade defence measures each time the EU institutions are faced with non-cooperation in the context of an anti-dumping investigation (see, to that effect, judgment of 4 September 2014, Simon, Evers & Co., C‑21/13, EU:C:2014:2154, paragraph 37).

82In the present case, as was stated in paragraphs 192 to 211 of the judgment under appeal, since the data necessary for constructing Sinopec Ningxia’s normal value was not provided, the Commission was entitled to use the data relating to the other cooperating exporting producers that used similar raw materials as ‘facts available’ within the meaning of Article 18 of the basic regulation.

83Consequently, by inferring, in recital 333 of the regulation at issue, from the fact that it was not possible to verify and use the data necessary for constructing Sinopec Ningxia’s normal value that ‘there [was] no evidence suggesting’ that that normal value was below the highest normal value per product type of the other cooperating exporting producers that use similar raw materials, the Commission did not apply an irrebuttable presumption, but merely drew the appropriate conclusions from that interested party’s non-cooperation by relying on the most relevant ‘facts available’ which it was able to use in order to establish the normal value relating to that party.

84First, the fact that those considerations do not establish an irrebuttable presumption stems from the fact that it was open to the interested parties, during the administrative procedure, to dispute the factual accuracy of the Commission’s findings by relying on an analysis of ‘facts available’ that were different from those used by that institution to demonstrate that there was evidence suggesting that the normal value of Sinopec Ningxia’s products was below the value on which the Commission relied. Moreover, as is apparent from paragraph 176 of the judgment under appeal, that is precisely what they did before the General Court in arguing that the normal value established in respect of Sinopec Ningxia’s products was 50% higher than the normal value established in respect of Sinopec Chongqing’s products. Consequently, the General Court erred in holding, in paragraph 220 of that judgment, that, in order to rebut the alleged presumption applied by the Commission, the undertakings in the Sinopec Group would necessarily have had to provide the information relating to Sinopec Ningxia’s normal value, the non-production of which was specifically what triggered the application of Article 18 of the basic regulation.

85Second, as is apparent, in essence, from the report of the WTO Panel, the content of which has been recalled in paragraph 73 of the present judgment, in the event of non-cooperation on the part of an interested party, the authorities responsible for an anti-dumping investigation are entitled to take into account the procedural circumstances in which information is missing, provided that the purpose of the facts selected is not to penalise that interested party. In the present case, contrary to what the General Court appears to suggest in paragraphs 219 and 220 of the judgment under appeal, the fact that the Commission relied on Sinopec Ningxia’s non-cooperation in order to infer, in the absence of any evidence to the contrary, that that undertaking’s normal value, per product type, was probably not below the highest normal value, per product type, relating to the other cooperating exporting producers using similar materials, cannot, on its own, suffice to indicate an intention to penalise that undertaking on account of its non-cooperation. A fortiori, such a fact cannot suffice to establish an error of law.

86Thus, it appears that, as required by Article 18(1) of the basic regulation, interpreted in the light of Article 6.8 of the anti-dumping agreement, the Commission selected facts available which constituted, in the words of the WTO Panel referred to in paragraph 73 of the present judgment, ‘facts available that constitute reasonable replacements for the missing “necessary” information in the specific facts and circumstances of a given case.’

87Therefore, in making that selection, the Commission did not exceed the limits of the broad discretion which, as has been recalled in paragraphs 74 and 75 of the present judgment, it enjoys in that regard, nor did it penalise Sinopec Ningxia for its non-cooperation.

88As regards the argument of the undertakings in the Sinopec Group that the Commission could have chosen lower normal values as ‘facts available’, inter alia a normal value constructed on the basis of an average of the normal values used in respect of the Chinese exporting producers that cooperated in the investigation, it must be recalled that, under Article 18(6) of the basic regulation, which corresponds, in essence, to the wording of paragraph 7 of Annex II to the anti-dumping agreement, if an interested party does not cooperate, or cooperates only partially, so that relevant information is thereby withheld, the result of the investigation may be less favourable to the party than if it had cooperated.

89Moreover, as the Advocate General observed in point 44 of his Opinion, if the Commission were, as a general rule, obliged to use, as ‘facts available’, normal values that are below the highest normal values used per product type manufactured by exporting producers that cooperated in the investigation, for instance an average of the normal values used in respect of those exporting producers, that might incentivise exporting producers which know or believe that their costs of production are higher than those of other exporting producers not to cooperate in the investigation or to cooperate only selectively, which would clearly have an impact on the effectiveness of anti-dumping investigations.

90In that regard, as has been recalled in paragraph 73 of the present judgment, the WTO dispute settlement bodies have interpreted Article 6.8 of the anti-dumping agreement – a provision which corresponds to Article 18(1) of the basic regulation – as not requiring investigating authorities, in selecting ‘facts available’, to select those facts that are ‘most favourable’ to the non-cooperating party.

91In addition, it cannot be maintained that, by selecting as ‘facts available’ the highest normal values, the Commission necessarily selected the normal values most unfavourable to Sinopec Ningxia.

92As the Advocate General also observed in point 45 of his Opinion, under Article 18(5) of the basic regulation, the Commission in principle had the option of selecting as ‘facts available’, inter alia, the information supplied in the complaint or official import statistics, which could potentially have resulted in the use – as regards the products manufactured by Sinopec Ningxia – of a normal value higher than the one which was the highest with respect to any of the exporting producers that cooperated in the investigation.

93Furthermore, since it cannot, a priori, be ruled out that Sinopec Ningxia’s costs of production were higher than those of the exporting producers that cooperated in the investigation, the Commission’s decision to use, in respect of that exporting producer, as ‘facts available’, the highest normal values would, in that scenario, lead to an outcome more favourable to Sinopec Ningxia than that which would have resulted from the use of its own costs of production.

94Lastly, it may be inferred from Article 18(6) of the basic regulation that the Commission, when selecting ‘facts available’, is entitled to take into account the fact that the operator concerned may benefit from its lack of cooperation.

95It follows that the General Court erred in law in holding that, in the regulation at issue, the Commission had, on account of Sinopec Ningxia’s non-cooperation, applied an irrebuttable presumption that the normal value for each product type manufactured by that undertaking was not below the highest normal value for each corresponding product type manufactured by exporting producers that cooperated in the investigation. Accordingly, the General Court erred in upholding, on that basis, the line of argument put forward by the undertakings in the Sinopec Group according to which the Commission had therefore penalised them for their lack of cooperation. In so doing, the General Court infringed Article 18(1) of the basic regulation.

96In view of the foregoing, the first ground of appeal must be upheld.

The second ground of appeal, alleging infringement of Article 2(10) of the basic regulation, breach of the principle of good administration and distortion of the facts

97By its second ground of appeal, which is divided into two parts, the Commission contests paragraphs 124 to 139 of the judgment under appeal, by which the General Court upheld the second part of the second plea put forward at first instance by the undertakings in the Sinopec Group, by holding that the Commission’s adjustment to the export price, which consisted in deducting the costs at issue therefrom, and that institution’s refusal to make such an adjustment to the normal value in order to remove those costs from it, were contrary to the introductory part of Article 2(10) of the basic regulation and to the principle of good administration.

The first part

–Arguments of the parties

98By the first part of its second ground of appeal, the Commission submits that, in paragraphs 126 and 127 of the judgment under appeal, the General Court infringed the introductory part of Article 2(10) of the basic regulation by considering that the Commission was required to demonstrate that the adjustments made so as to bring the export price back to the level of an ‘ex-works’ price were necessary in order for the comparison between the export price and the normal value to be fair.

99It maintains that a distinction should be drawn between, on the one hand, the general obligation for the Commission to make a fair comparison between export prices and the normal value at the same level of trade, in respect of sales made at as nearly as possible the same time, that obligation being the subject of the first sentence and the first part of the second sentence of the introductory part of Article 2(10), and, on the other, the obligation to take due account of other differences which affect price comparability and which justify adjustments, to which reference is made in the second part of the second sentence and in the third sentence of that introductory part.

100It argues that those two obligations are subject to distinct rules regarding the burden and standard of proof. While the obligation to take account of other differences justifying adjustments is subject to the rule that the party claiming an adjustment must demonstrate that it is necessary to ensure price comparability, the obligation to make a fair comparison between the export price and the normal value at the same level of trade is an unconditional obligation with which the Commission must comply and which precedes the application of any adjustments.

101According to the Commission, when it brings the export price back to a price corresponding to the level of trade at which it decided to make the comparison, in the present case the ‘ex-works’ level – the process known as ‘netting back’ – the only burden of proof that lies with the Commission consists in demonstrating that the costs at issue are included in the export price or the normal value and that they do not form part of the price at the level of trade at which the comparison is made.

102It submits that, in paragraphs 126 and 127 of the judgment under appeal, the General Court infringed those rules relating to the burden of proof, in that it required the Commission to demonstrate that adjustments aimed at establishing the ‘ex-works’ level of the export price were ‘necessary in order for the comparison of the export price and the normal value to be fair’.

103Wegochem contends that the first part of the second ground of appeal is ineffective in that it follows from the phrase ‘in any event’, used in paragraph 128 of the judgment under appeal, that the General Court upheld the second part of the second plea in the action at first instance on the basis of the grounds set out not in paragraphs 126 and 127 of that judgment, but in paragraphs 128 to 135 thereof. The undertakings in the Sinopec Group, supported by Wegochem, dispute the merits of the first part of that ground of appeal.

104According to those undertakings, it is apparent from both Article 2.4 of the anti-dumping agreement and Article 2(10) of the basic regulation that the burden of proof borne by the party wishing to rely on an adjustment includes a requirement to demonstrate that the factor in respect of which an adjustment is claimed affects the normal value or the export price and, therefore, their comparability. That requirement applies not only to the ‘specific’ adjustments listed in Article 2(10)(a) to (k) of the basic regulation, but also to adjustments intended to ensure that the comparison between those two prices is made at the same level of trade.

105In addition, they maintain that the Commission made a fundamental error in its claim – which, moreover, is unsubstantiated – that the normal value which it calculated was established at the ‘ex-works’ level. The Commission has no evidence to show that the normal value which it calculated under Article 2(6a) of the basic regulation was at that level.

–Findings of the Court

106In the first place, it must be noted, as the Advocate General also observed, in essence, in point 88 of his Opinion, that the General Court, in paragraph 139 of the judgment under appeal, upheld the second part of the second plea in the action at first instance on the basis of two separate grounds. The first part of the second ground of appeal relates to the first of those grounds, set out in paragraphs 124 to 127 of that judgment, according to which it was not for the undertakings in the Sinopec Group to provide further justification for their request for an adjustment, but for the Commission to establish that the adjustments which it had made were justified. By the second ground, set out in paragraphs 128 to 135 of that judgment, the General Court held that, even assuming that the burden of proving that the adjustment was well founded had rested with those undertakings, that burden would have been unreasonable.

107Therefore, contrary to what Wegochem claims, the first part of the Commission’s second ground of appeal is not ineffective and must be examined.

108In the second place, as regards the merits of that first part, it should be recalled, first, that it is apparent from the regulation at issue that the Commission, having found, inter alia on the basis of a country report concerning China which it had published pursuant to Article 2(6a)(c) of the basic regulation, that there were ‘significant distortions’, within the meaning of Article 2(6a)(b) of that regulation, in that third country, constructed the normal value in accordance with the method laid down in Article 2(6a)(a) of that regulation.

109To that end, the Commission added to the costs of production of an exporting producer established ‘in an appropriate representative country’, calculated on the basis of ‘relevant and readily available’ data – in the present case, the costs of production of the Turkish exporting producer Ilkalem – an ‘undistorted and reasonable’ amount in respect of the SG&A costs reported by that exporting producer and the profits.

110Second, as regards the introductory part of Article 2(10) of the basic regulation, it must be observed that it is apparent, in essence, from paragraphs 5.205 and 5.207 of the report of the WTO Appellate Body of 18 January 2016 in the case European Communities – Definitive anti-dumping measures on certain iron or steel fasteners from China (WT/DS397/AB/RW), relating to the scope of the introductory part of Article 2.4 of the anti-dumping agreement, that the obligation to make a fair comparison laid down therein applies in all anti-dumping investigations, irrespective of the methodology used to determine the normal value, including where that value is determined on the basis of a surrogate third country.

111Accordingly, that obligation to make a fair comparison also applies where, as is the case in this instance, the normal value was constructed in accordance with the method laid down in Article 2(6a) of the basic regulation.

112It is clear from the introductory part of Article 2(10) of the basic regulation that, in anti-dumping investigations, the Commission is bound by a fundamental obligation set out in the first sentence of that introductory part, namely the obligation to make a ‘fair comparison’ between the export price and the normal value. The remainder of that introductory part sets out the detailed rules for fulfilling that obligation. Thus, the second and third sentences of that introductory part provide that that comparison is to be made at the same level of trade and in respect of sales made at, as closely as possible, the same time and with due account taken of other differences which affect price comparability, and that, where the normal value and the export price as established are not on such a comparable basis, due allowance, in the form of adjustments, is to be made in each case, on its merits, for differences in factors which are claimed, and demonstrated, to affect prices and price comparability.

113It is therefore necessary to distinguish, within the introductory part of Article 2(10) of the basic regulation, two types of adjustment which must be applied consecutively. The first type of adjustment consists, after having determined the level of trade at which the normal value and the export price will be compared – namely, as a general rule, the ex-works level – in bringing the export prices and/or the normal value back to that level of trade, that is, the ‘netting back’ process referred to in paragraph 101 of the present judgment. The second type of adjustment allows account to be taken of ‘other differences which affect price comparability’ and logically comes after the netting back process.

114The first three sentences of the introductory part of Article 2(10) of the basic regulation have, in essence, the same scope as the first three sentences of Article 2.4 of the anti-dumping agreement. The latter provision draws the same distinction between the two types of adjustment referred to in the preceding paragraph.

115Therefore, in accordance with the case-law referred to in paragraph 72 of the present judgment, it is necessary, for the purpose of interpreting and applying the introductory part of Article 2(10) of the basic regulation, to take account of the interpretation of Article 2.4 of the anti-dumping agreement by the WTO dispute settlement bodies.

116However, that distinction between those two types of adjustment does not, as such, affect the allocation of the burden of proof or the standard of proof required when adjustments are claimed by the Commission or by interested parties.

117Indeed, with regard to any adjustment referred to in Article 2(10) of the basic regulation, the same principle – enshrined in the case-law of the Court – applies, namely that, if a party claims adjustments under that provision in order to ensure comparability between the normal value and the export price for the purpose of determining the dumping margin, that party must prove that its claim is justified by demonstrating that the factor referred to in Article 2(10) of that regulation, in respect of which the adjustment is claimed, is such as to affect prices and price comparability (see, to that effect, judgments of 26 October 2016, PT Musim Mas v Council, C‑468/15 P, EU:C:2016:803, paragraph 82 and the case-law cited, and of 28 April 2022, Changmao Biochemical Engineering v Commission, C‑666/19 P, EU:C:2022:323, paragraph 151).

118Moreover, that principle follows expressly from the wording of the third sentence of both the introductory part of Article 2(10) of the basic regulation and Article 2.4 of the anti-dumping agreement, inasmuch as those provisions require the party claiming an adjustment to ‘demonstrate’ that the differences in question affect price comparability.

119In the present case, in accordance with that principle, it was for the Commission to prove that the adjustment which it intended to make, namely the deduction of the costs at issue from the export price in order to bring that price back to a price corresponding to the ‘ex-works’ level of trade, was justified, since those costs did not relate to that level of trade, but to a subsequent level of trade.

120As the Advocate General observed in point 97 of his Opinion, since the Commission had adduced proof in that respect, it did not have to demonstrate further that the costs at issue were factors affecting prices and price comparability. A comparison between the normal value and the export price can under no circumstances be fair if those prices are compared at different levels of trade. Since it was clearly established that the costs at issue were included in the export price even though they did not form part of the components of a price corresponding to the level of trade selected, namely the ‘ex-works’ level, those costs necessarily affected price comparability and had to be deducted from the export price.

121It was therefore not for the Commission to demonstrate, in addition, before making the downward adjustment to the export price by deducting the costs at issue from that price, that the normal value also had to be adjusted downwards by deducting those costs, assuming that they also had a bearing on the determination of the normal value.

122Although the undertakings in the Sinopec Group challenged the adjustment that the Commission intended to make, the reason for this was that, according to those undertakings, the costs at issue could also have been included in the constructed normal value, which they doubted had been calculated at the ‘ex-works’ level, and therefore those costs should have been deducted from the normal value.

123However, as the Advocate General stated, in essence, in point 94 of his Opinion, since the undertakings in the Sinopec Group requested that the normal value of their products be adjusted downwards by deducting the costs at issue as part of the ‘netting back’ process referred to in paragraph 101 of the present judgment, it was for those undertakings, in accordance with the principle relating to the burden of proof, as enshrined in the case-law of the Court referred to in paragraph 117 of the present judgment, to prove that their claim for such an adjustment was justified, which required them to demonstrate that the costs at issue or some of those costs were included in the normal value and that, contrary to what the Commission stated in recital 341 of the regulation at issue, that normal value had not therefore been constructed on an ‘ex-works’ basis.

124In that context, it must be recalled that an adjustment to the export price does not automatically entail an adjustment to the normal value. Such an adjustment needs to be duly justified, based on facts and evidence, by the party requesting it (report of the WTO Panel of 2 October 2025 in the case European Union – Countervailing and anti-dumping duties on stainless steel cold-rolled flat products from Indonesia (WT/DS616/R, paragraph 7.596)).

125Accordingly, the General Court erred in law in holding, in paragraphs 126 and 127 of the judgment under appeal, that it was for the Commission, which had chosen to make the comparison at issue at the ‘ex-works’ level of trade, to demonstrate that the adjustments to the export price which it intended to make, consisting in deducting the costs at issue therefrom so as to bring the export price back to that level of trade, were necessary in order for the comparison of the export price and the normal value to be fair.

126It follows that the first part of the second ground of appeal must be upheld.

The second part

–Arguments of the parties

127By the second part of its second ground of appeal, the Commission complains that the General Court, first, distorted the facts and erred in law when it held, in paragraph 128 of the judgment under appeal, that the undertakings in the Sinopec Group had established the need for an adjustment to the normal value following the adjustment made by the Commission, consisting in deducting the costs at issue from the export price and, second, erred in law when it found, in paragraphs 129 to 139 of that judgment, that the Commission had placed an unreasonable burden of proof on those undertakings by requiring them to substantiate their assertions regarding the adjustments requested.

128In relation to paragraphs 132 and 133 of the judgment under appeal, the Commission submits, principally, that the arguments in question were put forward for the first time before the General Court by Wegochem. It argues that the legality of an administrative decision is to be assessed in the light of the information available to the EU body which was the author of that decision at the time when that body adopted it. Even assuming that the General Court could rely on those arguments, the Commission maintains that they are, in any event, unfounded.

129As regards the Commission’s obligation under the final sentence of Article 2.4 of the anti-dumping agreement not to impose an unreasonable burden of proof on the parties, that institution maintains that, since it had disclosed to the undertakings in the Sinopec Group all the information it had at its disposal concerning the adjustment which it intended to make and, notwithstanding that, those undertakings had not substantiated their claim, it was those undertakings which failed to discharge their burden of proof. Accordingly, it cannot be claimed that the Commission imposed an unreasonable burden of proof.

130It submits that the Court of Justice, in that regard, has previously held, in paragraph 152 of the judgment of 28 April 2022, Changmao Biochemical Engineering v Commission (C‑666/19 P, EU:C:2022:323), that, since the Commission had disclosed to the undertaking that was subject to the anti-dumping investigation data relating to the EU producer and that undertaking had been able to comment on those data, that undertaking could not validly complain that the Commission had failed to act in accordance with the principle of sound administration and had infringed its rights of defence by placing an unreasonable burden of proof on it.

131The undertakings in the Sinopec Group, supported by Wegochem, dispute the merits of the second part of the present ground of appeal. They contend that the General Court did not distort their comments on final disclosure concerning their request that the normal value be adjusted by deducting the costs at issue already deducted from the export price. According to them, they complained that the Commission, in constructing the normal value, had chosen to use data relating to the SG&A costs of a Turkish undertaking even though those data did not make it possible to determine whether those costs included the costs at issue.

–Findings of the Court

132In the first place, the Commission submits that, in paragraph 128 of the judgment under appeal, the General Court distorted the comments on final disclosure submitted by the undertakings in the Sinopec Group, in holding that those undertakings had claimed that the export price used by the Commission did not include the costs at issue, although the normal value had been constructed by including the SG&A costs which, ‘in all likelihood’, included the costs at issue, and therefore the comparison could not be fair. It maintains that, in those comments, those undertakings merely claimed that the normal value had ‘presumably’ been established on a ‘delivered’ basis and, therefore, not at the ‘ex-works’ level, since it included all selling expenses incurred by the Turkish producer Ilkalem which the Commission had selected in order to construct the normal value.

133In that regard, it should be recalled that, according to settled case-law, where an appellant alleges a distortion of the facts or the evidence by the General Court, he or she must, pursuant to Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court of Justice, indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in his or her view, led to such distortion. In addition, that distortion must be obvious from the documents in the Court’s file, without any need to carry out a new assessment of the facts and the evidence (judgment of 28 April 2022, Yieh United Steel v Commission, C‑79/20 P, EU:C:2022:305, paragraph 53 and the case-law cited).

134Moreover, in the regulation at issue, the Commission, having found that there were ‘significant distortions’, within the meaning of Article 2(6a)(b) of the basic regulation, in China, constructed the normal value in accordance with the method laid down in Article 2(6a)(a) of that regulation. In the present case, as is apparent from paragraph 109 of the present judgment, it added to the costs of production of an exporting producer established ‘in an appropriate representative country’, calculated on the basis of ‘relevant and readily available’ data, namely the costs of production reported by Ilkalem, an ‘undistorted and reasonable’ amount in respect of the SG&A costs – corresponding to the SG&A costs of that exporting producer – and an amount in respect of the profits.

135In the light of the case-law of the Court of Justice referred to in paragraph 133 of the present judgment, it must be held that, by summarising, in paragraph 128 of the judgment under appeal, the comments on final disclosure submitted by the undertakings in the Sinopec Group to the effect that they claimed that the normal value had been constructed by including the SG&A costs which, ‘in all likelihood’, included the costs at issue, and even if that summary could be improved, the General Court did not obviously distort those comments, according to which those undertakings maintained that the normal value had ‘presumably’ been established on a ‘delivered’ basis.

136In the second place, as regards the complaint that the General Court erred in law in finding, in paragraphs 129 to 139 of the judgment under appeal, that the Commission had placed an unreasonable burden of proof on the undertakings in the Sinopec Group by requiring them to substantiate their assertions regarding the adjustments requested, it must be pointed out, first of all, that, as has been recalled in paragraph 117 of the present judgment, it is for the party claiming an adjustment in respect of any of the factors referred to in Article 2(10) of the basic regulation to demonstrate that that factor is such as to affect prices and price comparability.

137Thus, where a producer claims an adjustment of the normal value, in principle downward, or an adjustment of the export price, logically upward, it is for that operator to indicate and to establish that the conditions for granting such an adjustment are satisfied. Conversely, where the Commission considers that it is appropriate to apply a downward adjustment of the export price, it is the responsibility of that institution to adduce at the very least consistent evidence showing that that adjustment is justified (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 61).

138Since the wording of Article 2.4 of the anti-dumping agreement makes express reference to differences which are ‘demonstrated’ to affect price comparability, it follows that, under that provision, exporters bear the burden of adequately substantiating their requests for adjustment in respect of an alleged difference affecting price comparability and of adducing evidence in support of those requests. Thus, a mere statement by an exporter requesting an adjustment without providing any substantiated request to that effect clearly fails to meet that requirement (see, to that effect, report of the WTO Panel of 2 October 2025 in the case European Union – Countervailing and anti-dumping duties on stainless steel cold-rolled flat products from Indonesia (WT/DS616/R, paragraphs 7.606 and 7.607)).

139In the present case, it must be held that, although it is apparent from paragraphs 131 to 133 of the judgment under appeal that, before the General Court, Wegochem put forward a number of arguments intended to substantiate the request for adjustment of the normal value made by the undertakings in the Sinopec Group as regards the costs at issue, the fact remains that those arguments were not raised by those undertakings, even in embryonic form, during the administrative procedure before the Commission.

140According to settled case-law, the lawfulness of a Commission decision is to be assessed in the light of the information available to that institution when the decision was adopted (see, to that effect, judgment of 1 July 2008, Chronopost and La Poste v UFEX and Others, C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 90 and the case-law cited).

141Accordingly, the question whether the undertakings in the Sinopec Group duly substantiated their request for adjustment of the normal value in order to deduct the costs at issue therefrom is to be examined exclusively in the light of their comments on final disclosure relating to that request, as summarised in paragraph 128 of the judgment under appeal, without taking into account the arguments subsequently put forward in that regard by Wegochem before the General Court.

142It follows from paragraph 128 of the judgment under appeal that that question is clearly to be answered in the negative.

143Indeed, it is apparent that the General Court found, in that paragraph, that the undertakings in the Sinopec Group, during the administrative procedure, had substantiated their request for an adjustment – namely, requesting that the costs at issue not be deducted from the export price or that they be deducted from the normal value – solely by means of the claim that ‘the export price used by the Commission did not include the costs at issue, although the normal value had been constructed by including the SG&A costs which, in all likelihood, included the costs at issue, and therefore the comparison could not be fair.’

144Since such a request for adjustment cannot be regarded as having been adequately substantiated or based on evidence duly adduced, it must be concluded that the Commission did not infringe Article 2(10) of the basic regulation by rejecting that request in recital 314 of the regulation at issue, as reproduced in paragraph 130 of the judgment under appeal, on the ground that it had found that there was nothing indicating that the costs at issue were included in the SG&A costs reported by Ilkalem.

145It follows that the General Court erred in law in holding, in paragraph 128 of the judgment under appeal, that it was to be inferred from the mere claim made by the undertakings in the Sinopec Group, referred to in paragraph 128 of that judgment, that they had thus ‘duly substantiated’ their request, in essence, that the Commission make adjustments in order to ensure that the comparison of the export price with the normal value was fair.

146Second, it must be examined whether the General Court was entitled to hold, in paragraphs 134 and 135 of the judgment under appeal, in essence, that it was apparent from recital 314 of the regulation at issue that the Commission imposed an unreasonable burden of proof on the undertakings in the Sinopec Group, since, given that that institution did not have a more precise breakdown of Ilkalem’s SG&A costs, it could not reasonably require those undertakings to substantiate their request further by producing data relating to an unrelated party that were more precise than the data held by the Commission.

147In that respect, it must be observed that Article 2(10) of the basic regulation, unlike Article 2.4 of the anti-dumping agreement, does not state that the ‘authorities shall indicate to the parties in question what information is necessary to ensure a fair comparison and shall not impose an unreasonable burden of proof on those parties.’

148However, as the General Court correctly recalled in paragraph 129 of the judgment under appeal, in so far as the requirements under that provision of the anti-dumping agreement relate to the right of the parties to an administrative procedure to be given the information necessary in order to be able to participate in it on an informed basis, and to the intensity of the burden of proof which they must discharge, those requirements form part of the general principles of EU law and, in particular, of the principle of good administration, also set out in Article 41 of the Charter of Fundamental Rights of the European Union.

149It is true that, where the Commission – as it did in the regulation at issue – constructs the normal value by applying the method laid down in Article 2(6a)(a) of the basic regulation, the constructed normal value is to include, inter alia, an undistorted and reasonable amount for the SG&A costs of an exporting producer established in an appropriate representative country.

150It follows that, where the normal value is constructed in this manner, an exporting producer subject to an anti-dumping investigation which intends to request, during that investigation, a downward adjustment of the normal value in order to take account of certain costs, such as the costs at issue, on the ground that those costs are included in the SG&A costs forming part of the normal value, is entirely dependent, for the purpose of substantiating its request, on the information provided in that regard by the undertaking in the third country concerned, which is disclosed to the exporting producer by the Commission, it being understood that the Commission itself does not, in principle, have access to that information either.

151In such a context, a party requesting an adjustment cannot be required to adduce conclusive evidence that the adjustment is well founded, lest that party be obliged to bear a burden of proof which is impossible to discharge or, at the very least, an unreasonable burden of proof. Accordingly, in that specific context, the principles relating to the burden of proof regarding adjustments must be interpreted as meaning that the relevant party is required to adduce, at the very least, prima facie evidence that the adjustment claimed by it is well founded. If the party requesting an adjustment adduces such prima facie evidence during the investigation and in good time, it is for the Commission to continue its investigation in a spirit of dialogue and cooperation with that party and to make every reasonable effort, as far as possible and taking into account the mandatory time limits laid down in the basic regulation with regard to the termination of the investigation, to provide that party with the information it needs so that it may duly substantiate its request as soon as practicable.

152The arguments put forward by Wegochem before the General Court, referred to in paragraphs 132 and 133 of the judgment under appeal, could therefore have been taken into account in order to establish such prima facie evidence of the inclusion of the costs at issue in the SG&A costs reported by Ilkalem, had those arguments been submitted by the undertakings in the Sinopec Group during the investigation rather than, as was the case in this instance, for the first time before the General Court by Wegochem.

153Since the undertakings in the Sinopec Group did not adduce such prima facie evidence during the investigation carried out by the Commission and in good time, it cannot be alleged that that institution failed to act in accordance with the principle of good administration and infringed those undertakings’ rights of defence by imposing an unreasonable burden of proof on them.

154In the light of the foregoing considerations, the second part of the second ground of appeal must also be upheld, and therefore the second ground of appeal must be held to be well founded in its entirety.

The third ground of appeal, alleging infringement of Article 2(10)(i) of the basic regulation

155By its third ground of appeal, which consists of two parts, the Commission contests paragraphs 65 to 113 of the judgment under appeal, alleging that the General Court, in those paragraphs, erred in holding that the Commission had infringed Article 2(10)(i) of the basic regulation and that it had made a manifest error of assessment by finding, in the regulation at issue, that Sinopec Central-China had been performing functions similar to those of an agent working on a commission basis and by consequently making a downward adjustment to the export price pursuant to that provision.

The first part

–Arguments of the parties

156The Commission submits that, in paragraphs 69 and 70 of the judgment under appeal, the General Court infringed Article 2(10)(i) of the basic regulation, since, rather than examining whether that institution could validly make an adjustment under that provision on the basis of consistent evidence showing that Sinopec Central-China had acted under the same conditions as a trader working on a commission basis, the General Court assessed whether the Commission had adduced consistent evidence to demonstrate that Sinopec Central-China could not be considered to be acting as an internal sales department.

157It maintains that, in so doing, the General Court disregarded the principle relating to the burden of proof in respect of the adjustment referred to in Article 2(10)(i) of the basic regulation, as follows from the case-law of the Court of Justice.

158It argues that, as recitals 372 and 373 of the regulation at issue confirm, in the present case, the Commission in fact duly discharged its burden of proof under that principle, with the result that it was for the undertakings in the Sinopec Group to demonstrate that that adjustment was not justified.

159The undertakings in the Sinopec Group contend, as a preliminary point, that the first part of that third ground of appeal is inadmissible, since, in its appeal, the Commission did not precisely identify the paragraphs of the judgment under appeal which it intends to challenge under that first part.

160As to the substance, they maintain, inter alia, that the conclusions drawn by the General Court in paragraphs 69 and 70 of the judgment under appeal are manifestly in line with the settled case-law of the Court of Justice relating to the burden of proof, which is applicable when an adjustment is claimed under Article 2(10)(i) of the basic regulation, and with the wording of that provision.

–Findings of the Court

161As a preliminary point, it is necessary to dismiss the plea of inadmissibility raised by the undertakings in the Sinopec Group alleging that, in its appeal, the Commission did not precisely identify the paragraphs of the judgment under appeal which it intends to challenge under the first part of its third ground of appeal.

162That part is directed against paragraphs 69 and 70 of the judgment under appeal, by which the General Court rejected the Commission’s argument that there was a ‘general rule’ according to which an adjustment under Article 2(10)(i) of the basic regulation must ‘in principle’ be made once an undertaking sets up a related trading company to perform its export sales functions – a general rule which would thereby effectively shift the burden proof.

163As to the substance, it must be held that that ‘general rule’ finds no support in the case-law of the Court of Justice which, moreover, the General Court correctly recalled in paragraphs 65 to 67 of the judgment under appeal and from which it drew the conclusions set out in paragraphs 68 to 70 of that judgment.

164As regards that case-law, it should be recalled that the Court of Justice has held that, where the Commission takes 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 similar to those of an agent working on a commission basis, it is the responsibility of that institution to adduce at the very least consistent evidence showing that that condition is fulfilled (judgment of 26 October 2016, PT Musim Mas v Council, C‑468/15 P, EU:C:2016:803, paragraph 84 and the case-law cited).

165The Court of Justice has inferred on that basis that, where the Commission has adduced consistent evidence establishing that a distributor affiliated to a producer carried out functions similar to those of an agent working on a commission basis, it will be for that distributor or that producer to adduce evidence that an adjustment under Article 2(10)(i) of the basic regulation is not justified, for example by demonstrating that they form a single economic entity. To that end, those economic operators could, inter alia, prove that they are not operated independently, and that they are tied together by compensatory arrangements (judgment of 26 October 2016, PT Musim Mas v Council, C‑468/15 P, EU:C:2016:803, paragraph 85).

166On that basis, the General Court correctly inferred, in paragraph 68 of the judgment under appeal, that the Commission, in order to be entitled to make the adjustment under Article 2(10)(i) of the basic regulation, was required to adduce consistent evidence to establish that that adjustment was justified and, in paragraphs 69 and 70 of that judgment, that the Commission could not therefore rely on a general rule according to which an adjustment under Article 2(10)(i) of the basic regulation must in principle be made once an undertaking sets up a related trading company to perform its export sales functions.

167Lastly, in so far as the Commission appears to complain that the General Court confined itself to examining whether it had adduced consistent evidence showing that Sinopec Central-China was not an internal sales department and therefore failed to examine whether that company was carrying out functions similar to those of an agent working on a commission basis, that argument must be rejected, since, as is apparent from paragraphs 88, 111 and 112 of the judgment under appeal, the General Court carried out that latter examination.

168It follows that the first part of the third ground of appeal must be rejected.

The second part

169By the second part of its third ground of appeal, the Commission complains that the General Court made a number of errors of law in its examination, in paragraphs 80 to 113 of the judgment under appeal, of the five elements listed in paragraph 80 of that judgment and which the Commission had relied on in the regulation at issue as a body of consistent evidence demonstrating that Sinopec Central-China could not be considered to have acted as an internal sales department, such that a downward adjustment to the export price under Article 2(10)(i) of the basic regulation was justified.

–Arguments of the parties

170By that second part, the Commission submits, in the first place, that the General Court erred in law, since it assessed each of those five elements separately on the basis of their individual significance and not as factors reflecting the economic reality of the relationship between the producer concerned and the related distributor. Accordingly, the General Court failed to take account of all relevant factors and therefore failed to carry out an overall assessment of those factors, as required by the case-law.

171In the second place, the Commission criticises the General Court’s assessment of each of those elements.

172As regards the first element, namely the fact that Sinopec Central-China was looking for customers and established contact with them, the Commission submits that, contrary to what the General Court held in paragraphs 82 to 84 of the judgment under appeal, that is a relevant factor for the purpose of demonstrating the applicability of Article 2(10)(i) of the basic regulation.

173With respect to the second element, namely the fact that the producer Sinopec Chongqing had made direct export sales, the Commission maintains that, in its examination of that element, the General Court, in so far as it examined the significance of the volumes of direct sales, did not apply the appropriate criterion for assessing that item of evidence and thus failed to take into account that, first, the direct sales at issue were ‘genuine … sales’, as indicated in recital 368 of the regulation at issue, and, second, the invoices relating to those sales were issued by Sinopec Chongqing.

174As regards the third element, namely the fact that the producers Sinopec Chongqing and Sinopec Ningxia made direct sales in China, the Commission submits that, although the General Court correctly acknowledged that that fact was capable of demonstrating that those companies had the necessary structure for selling their products without using the services of Sinopec Central-China or other, possibly unrelated companies, it nevertheless erred in law by subsequently, and in a contradictory manner, ruling out the relevance of that element on the ground – which, according to the Commission, was unsubstantiated and purely speculative – that an exporting producer may use related or unrelated companies or different internal sales departments in relation to export sales and sales on the domestic market, respectively.

175So far as concerns the fourth element, namely the fact that Sinopec Chongqing and Sinopec Ningxia incurred costs in relation to their sales on the Chinese domestic market and, in the case of Sinopec Chongqing, in relation to its direct export sales to the United States, the Commission argues that, since it had demonstrated that the second and third elements concerning those sales were relevant, the same should apply with respect to the fourth element.

176Lastly, as regards the fifth element, namely the fact that Sinopec Central-China also traded goods purchased from producers other than Sinopec Chongqing and Sinopec Ningxia, the Commission submits that the General Court incorrectly departed from the case-law of the Court of Justice, in so far as it focused on one single element – that is, the volume of sales of products originating from purchases from unrelated producers – in order to rule out its relevance. It maintains that the volume of those sales was only one of the numerous other items of evidence relied on by the Commission to demonstrate that Sinopec Central-China was performing functions similar to those of a trader working on a commission basis.

177Wegochem contends, as a preliminary point, that the present part of the third ground of appeal is manifestly inadmissible, since, by that part, the Commission criticises findings of fact made by the General Court, without alleging, let alone demonstrating, any distortion of the evidence within the meaning of the case-law of the Court of Justice.

178The undertakings in the Sinopec Group, supported by Wegochem, dispute the merits of the arguments put forward by the Commission, including in relation to each of the five elements referred to in paragraph 80 of the judgment under appeal.

–Findings of the Court

179In the first place, it must be recalled that, as is apparent from the case-law of the Court of Justice, the question whether the General Court applied the correct legal standard when examining the evidence is a question of law, which is amenable, as such, to judicial review on appeal (judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraph 117 and the case-law cited).

180In addition, it is also a question of law whether the factors taken into consideration by the Commission in order to determine whether a trader carries out functions similar to those of an agent working on a commission basis, within the meaning of that provision, are relevant for the purposes of Article 2(10)(i) of the basic regulation, and, if so, what probative value those factors possess.

181Therefore, without prejudice to the potential inadmissibility of certain arguments put forward by the Commission, contrary to what Wegochem contends, the second part of the third ground of appeal is admissible in its entirety.

182As regards, in the second place, the merits of that second part, Article 2(10)(i) of the basic regulation provides that an adjustment is to be made for differences in commissions paid in respect of the sales under consideration. The second subparagraph of that provision states that the term ‘commissions’ is to be understood to include the mark-up received by a trader of the product or the like product if the functions of such a trader are similar to those of an agent working on a commission basis.

183In the present case, in the regulation at issue, the Commission made an adjustment pursuant to the second subparagraph of Article 2(10)(i) of the basic regulation.

184As the Advocate General observed, in essence, in point 162 of his Opinion, the rationale for inserting that second subparagraph in Article 2(10)(i) of the basic regulation was to clarify, in line with the consistent practice of the institutions, that such adjustments must also be made where the parties concerned do not act on the basis of a principal-agent relationship, but achieve the same economic result by acting as buyer and seller.

185Therefore, Article 2(10)(i) of the basic regulation allows an adjustment to be made not only for differences in commissions paid in respect of the sales under consideration, but also for the mark-up received by traders of the product if they perform functions similar to those of an agent working on a commission basis.

186It is apparent from the case-law of the Court relating to that provision that, in view of the requirement of a conclusion reflecting the economic reality of the relationship between the producer and the related distributor, the Commission is 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 (see, to that effect, judgment of 26 October 2016, PT Musim Mas v Council, C‑468/15 P, EU:C:2016:803, paragraph 43).

187While it is true, as the Commission submits, that that case-law expressly requires an overall assessment of all relevant factors to be carried out in order to determine whether an adjustment under Article 2(10)(i) of the basic regulation is justified, it must be held that, in the judgment under appeal, the General Court carried out such an overall assessment.

188After examining, in paragraphs 82 to 111 of the judgment under appeal, each of the five elements put forward by the Commission in the regulation at issue with a view to demonstrating that such an adjustment was justified, the General Court, in paragraph 112 of that judgment, carried out an overall assessment of those five elements, concluding that the second and third elements – which the General Court considered to be the only relevant ones – were not sufficient to constitute a body of consistent evidence that would demonstrate that Sinopec Central-China was performing functions similar to those of an agent working on a commission basis or that would preclude recognition of its status as an internal sales department.

189With respect to the various criticisms levelled by the Commission at the General Court’s assessment of each of the five elements referred to in paragraph 80 of the judgment under appeal, it must be stated at the outset that, as the Advocate General also observed, in essence, in point 188 of his Opinion, if it were to be concluded, following an examination of those criticisms, that the General Court erred in dismissing the first, fourth and/or fifth elements on the ground that they were irrelevant, it would follow that the General Court’s overall assessment of those five elements was necessarily flawed.

190As regards the first of those elements, namely the fact that Sinopec Central-China was looking for customers and established contact with them, it must be held that the General Court erred in law in considering that that element was not relevant for the purpose of demonstrating that an adjustment under Article 2(10)(i) of the basic regulation was justified, on the sole ground, put forward by the undertakings in the Sinopec Group, that looking for customers and establishing contact with them were activities that an independent trader as well as an internal sales department would carry out.

191As the Advocate General also pointed out, in essence, in points 192 to 194 of his Opinion, while it is true that that element is not decisive for the purpose of demonstrating that the related distributor carries out functions similar to those of an agent working on a commission basis, the fact remains that it is clearly a relevant factor which may, where appropriate, be of some significance for the purposes of such a demonstration.

192That is borne out by the usual meaning of the concept of ‘commercial agent’. Thus, that concept is defined, for example, in Article 1(2) of Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents (OJ 1986 L 382, p. 17) as referring to a self-employed intermediary who has continuing authority to negotiate the sale or the purchase of goods on behalf of another person, known as the ‘principal’, or to negotiate and conclude such transactions on behalf of and in the name of that principal.

193It follows from that definition that looking for customers and establishing contact with them is a characteristic function of a commercial agent working on a commission basis.

194Moreover, in the judgment of 25 June 2015, PT Musim Mas v Council (T‑26/12, EU:T:2015:437, paragraphs 79 and 80), the General Court previously held, correctly, that activities consisting in marketing products, taking care of contacts with existing and potential customers, soliciting and receiving orders, negotiating sales, issuing invoices, arranging freight and insurance for customers, providing after-sales service and assuming customer default risk, constitute functions that are similar to those of an agent working on a commission basis.

195The second element referred to in paragraph 80 of the judgment under appeal relates to the fact that the producer Sinopec Chongqing made direct export sales to the United States.

196In that regard, it must be observed that the direct invoicing by the producer established in a third country of a proportion of its export sales is a relevant factor which the Commission may take into account, and that the larger the proportion of such direct sales, the more difficult it is to maintain that the related distributor carries out the functions of an internal sales department (see, to that effect, judgment of 26 October 2016, PT Musim Mas v Council, C‑468/15 P, EU:C:2016:803, paragraph 49).

197It follows that, contrary to what the Commission claims, the General Court, in so far as it examined the significance of the volumes of the direct export sales at issue, applied the appropriate criterion for assessing that item of evidence.

198It must further be stated that, as the Advocate General also observed in point 196 of his Opinion, the Commission does not claim that the General Court made any specific error of law in its assessment of that element in paragraphs 85 to 94 of the judgment under appeal, but is in fact seeking to obtain a new assessment of the facts from the Court of Justice when it complains that the General Court failed to link the assessment of those direct export sales to an analysis of their relevance as to the economic relationship between Sinopec Chongqing and Sinopec Central-China.

199However, the Court of Justice does not have jurisdiction to carry out such a new assessment of the facts on appeal, unless the General Court is alleged to have distorted the facts or evidence submitted for its appraisal, as is apparent from settled case-law, referred to in paragraph 133 of the present judgment.

200In the present case, the Commission has neither alleged nor demonstrated such a distortion.

201It follows that the Commission’s complaints directed against the General Court’s assessment of the second of the five elements referred to in paragraph 80 of the judgment under appeal must be rejected as inadmissible.

202As regards the third of those elements, namely the fact that Sinopec Chongqing and Sinopec Ningxia made direct sales in China, it must be noted that, in paragraphs 97 to 99 of the judgment under appeal, the General Court held that the fact that those sales were made was capable of demonstrating that those companies had the ‘necessary structure for selling their products without using the services of Sinopec Central-China or other, possibly unrelated, companies’, but that, as the undertakings in the Sinopec Group had argued, it could not be ruled out that, in the context of its export sales and its sales on the domestic market, an exporting producer may decide to use related or unrelated companies, or different internal sales departments, with the result that the third element could not be regarded as conclusive evidence that might preclude recognition of Sinopec Central-China’s status as an internal sales department.

203Contrary to what the Commission maintains, that assessment is neither contradictory nor vitiated by a failure to state reasons.

204The existence of internal sales structures within the organisation of an exporting producer which are responsible for sales on the domestic market does not necessarily provide any indication as to whether those structures are involved in export sales.

205Furthermore, that appraisal cannot be called into question by the Commission’s argument that the General Court carried out an assessment that was isolated from the context of the sales made by Sinopec Central-China and that, had it taken that context into account, it would necessarily have concluded that, while both exporting producers in question had sales departments capable of serving export markets as well, Sinopec Central-China, which also made its own sales on the domestic market, was operating as an autonomous trading entity and not as an internal sales department.

206Aside from the fact that that inference appears to be speculative and unsubstantiated, it requires, in any event, a factual assessment which does not fall within the jurisdiction of the Court of Justice on appeal, unless a distortion is alleged and demonstrated, which is not the case in this instance.

207As regards the fourth element referred to in paragraph 80 of the judgment under appeal, relating to the fact that Sinopec Chongqing and Sinopec Ningxia incurred selling costs in relation to their sales on the Chinese domestic market and, in the case of Sinopec Chongqing, in relation to its direct export sales to the United States, the Commission submits that, since it demonstrated that the second and third elements concerning those sales were relevant, the same applies with respect to the fourth element.

208That argument must be rejected, since it follows from the foregoing that the Commission has unsuccessfully challenged the grounds of the judgment under appeal by which the General Court considered that those second and third elements were not relevant for the purpose of demonstrating that Sinopec Central-China performed functions similar to those of an agent working on a commission basis and that those elements also did not constitute evidence that would preclude recognition of its status as an internal sales department.

209As regards the fifth element relating to the trading by Sinopec Central-China of goods made by producers other than Sinopec Chongqing and Sinopec Ningxia, the General Court also held, in paragraph 111 of the judgment under appeal, that that element ‘is of no relevance in demonstrating that Sinopec Central-China was performing functions similar to those of an agent working on a commission basis.’

210The General Court based that conclusion, in the first place, on the finding, set out in paragraph 108 of the judgment under appeal, according to which the Commission, since it had admitted that it did not assess the significance, as a share of Sinopec Central-China’s total turnover, of the sale of all products purchased by Sinopec Central-China from companies other than Sinopec Chongqing and Sinopec Ningxia, could not rely on the fifth element as relevant evidence that the producer and the related distributor do not constitute a single economic entity.

211As the Advocate General correctly pointed out in point 204 of his Opinion, that finding is vitiated by an error of law.

212The Court of Justice has held that, in the analysis of whether there is a single economic entity between a producer and its related distributor, it is crucial to consider the economic reality of the relationship between that producer and that distributor. In view of the requirement of a conclusion reflecting such an economic reality, the Commission is 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’s organisation (see, to that effect, judgment of 26 October 2016, PT Musim Mas v Council, C‑468/15 P, EU:C:2016:803, paragraphs 42 and 43).

213Contrary to what the General Court held, since, according to that case-law, the Commission is required to take account of ‘all factors [that are] relevant’ in the examination to determine whether or not, in the light of the economic reality of the relationship between the producer and the related distributor, the latter carries out the functions of an integrated sales department within that producer’s organisation, the sales by Sinopec Central-China of the products covered by the investigation, namely PVA, manufactured by producers other than Sinopec Chongqing and Sinopec Ningxia, constituted a relevant factor which the Commission was entitled to take into account in that analysis.

214However, the General Court’s conclusion, in paragraph 111 of the judgment under appeal, that the fifth element was of no relevance is also based on other grounds – distinct from those stated in paragraph 108 of that judgment – which are set out in paragraphs 109 and 110 thereof.

215First, in paragraph 109 of the judgment under appeal, the General Court found that the turnover of Sinopec Central-China in respect of its PVA sales was generated through PVA almost all of which that undertaking had purchased from Sinopec Chongqing and Sinopec Ningxia, with only 2% of those purchases originating from unrelated producers. Second, in paragraph 110 of that judgment, the General Court held that the relevance of the fact that the volume of Sinopec Central-China’s PVA purchases from unrelated producers had represented 10% of the total volume of PVA exported by Sinopec Central-China to the European Union during the investigation period from 1 July 2018 to 30 June 2019 was undermined by the fact that the PVA which Sinopec Central-China purchased from unrelated producers had not been exported into the European Union but had been sold, in China, to a related company.

216In that regard, as has been recalled in paragraphs 212 and 213 of the present judgment, the Commission is required to take account of ‘all factors relevant’ to the determination as to whether or not, in the light of the economic reality of the relationship between the producer and the related distributor, the latter carries out the functions of an integrated sales department within that producer’s organisation.

217The proportion of sales made by the related distributor of products from unrelated producers is, in addition, a potentially important factor of which the Commission is entitled to take account for the purpose of determining whether that distributor forms a single economic entity with the related producer. Moreover, the larger the proportion of such sales of products from unrelated producers, the more difficult it is to maintain that the related distributor carries out the functions of an internal sales department within the related producer’s organisation (see, to that effect, judgment of 26 October 2016, PT Musim Mas v Council, C‑468/15 P, EU:C:2016:803, paragraphs 48 and 49).

218It follows that the General Court erred in law in holding, in paragraphs 111 and 112 of the judgment under appeal, that it followed from paragraphs 109 and 110 of that judgment that the fifth element was ‘of no relevance’ in demonstrating that Sinopec Central-China was performing functions similar to those of an agent working on a commission basis.

219While it is true that the probative value of that element may prove to be limited, owing, for example, to the relatively low volume of sales by Sinopec Central-China of PVA purchased from unrelated producers, the fact remains that such an element is, in principle, a relevant and potentially important factor in determining whether the related distributor carries out the functions of an internal sales department within the producer’s organisation or, on the contrary, carries out functions similar to those of an agent working on a commission basis.

220It follows that the second part of the third ground of appeal must be upheld.

221Therefore, the appeal is well founded in its first two grounds of appeal and in the second part of its third ground of appeal.

222Accordingly, the judgment under appeal must be set aside in so far as it upholds the second complaint of the third plea and the first two parts of the second plea in the action before the General Court and in so far as it consequently annuls the regulation at issue to the extent stated in point 1 of the operative part of that judgment.

The cross-appeal

223By their cross-appeal, the undertakings in the Sinopec Group contest paragraphs 141 to 159 of the judgment under appeal, in which the General Court rejected the first complaint of the third part of their second plea at first instance, by which they claimed that the Commission had unlawfully adjusted the normal value upwards on the basis of Article 2(10)(b) of the basic regulation in order to take into account the non-refundable VAT included in the export price.

224In support of their cross-appeal, the undertakings in the Sinopec Group put forward four grounds of appeal. The first ground of appeal alleges infringement of the introductory part of Article 2(10) of the basic regulation and of Article 2(10)(k) of that regulation. The second ground of appeal alleges infringement of Article 2(6a) of the basic regulation, in that the General Court incorrectly held that that provision is intended to ‘replace’ the price of the product concerned on the domestic market. The third ground of appeal alleges distortion of the evidence, in that the General Court incorrectly held that the Commission did demonstrate the need for an adjustment for non-refundable VAT. The fourth ground of appeal alleges that the judgment under appeal renders the obligation to state reasons and the right to be heard meaningless.

Admissibility of the cross-appeal

Arguments of the parties

225Kuraray contends, in essence, that the cross-appeal is inadmissible in its entirety, since, by their grounds of appeal, the undertakings in the Sinopec Group do not dispute that it was necessary for the Commission to make an adjustment in order to take account of the non-refundable VAT and thereby ensure a fair comparison of the normal value and the export price. Since they do not dispute this, and in the absence of proof that the undertakings in the Sinopec Group have an interest in having their grounds of appeal upheld, the cross-appeal is inadmissible. It argues that, in such circumstances, those undertakings have no interest in bringing proceedings.

226The Commission, for its part, maintains that, since the cross-appeal is not directed against paragraphs 160 to 164 of the judgment under appeal, and in particular is not directed against paragraph 160 thereof, the arguments put forward by the undertakings in the Sinopec Group in support of their cross-appeal are ineffective. It argues that, in the absence of any challenge to those paragraphs, the cross-appeal, even if allowed, would not call into question the upward adjustment of the normal value as made in the regulation at issue in order to ensure a fair comparison, within the meaning of Article 2(10) of the basic regulation.

Findings of the Court

227In the first place, it should be noted that, in their cross-appeal, the undertakings in the Sinopec Group submit that the Commission did not demonstrate that the conditions laid down in Article 2(10)(k) of the basic regulation were satisfied and that the General Court did not duly explain why, under that provision, an upward adjustment of the normal value was necessary. Were that line of argument to be accepted by the Court of Justice, it would clearly be in the interests of those undertakings since it would be likely to result in a reduction in their dumping margin.

228Therefore, contrary to what Kuraray claims, the cross-appeal is admissible.

229As regards, in the second place, the Commission’s line of argument according to which the grounds of appeal put forward in support of the cross-appeal are ineffective since the undertakings in the Sinopec Group did not also refer to paragraphs 160 to 164 of the judgment under appeal, it must be held that, as is clear from paragraph 160 of that judgment, in those paragraphs, the General Court addressed the complaint which those undertakings put forward at first instance in the event that it were held that the Commission was required to make an adjustment under Article 2(10)(b) of the basic regulation.

230Since, by their cross-appeal, the undertakings in the Sinopec Group challenge – specifically and solely – the General Court’s conclusion by which it considered that the Commission had demonstrated to the requisite legal standard the need for such an adjustment, the fact that paragraphs 160 to 164 of the judgment under appeal are not contested does not in any way render ineffective the grounds put forward in support of their cross-appeal.

Substance

The first ground of appeal, alleging infringement of Article 2(10) of the basic regulation and of Article 2(10)(k) of that regulation

–Arguments of the parties

231By the first ground of their cross-appeal, concerning paragraphs 157 to 159 of the judgment under appeal, the undertakings in the Sinopec Group submit that the General Court acted in breach of the principle laid down in settled case-law, according to which 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, since, first, the General Court changed the legal basis for the adjustment in respect of non-refundable VAT by substituting, of its own motion, Article 2(10)(k) of the basic regulation for Article 2(10)(b) of that regulation, which the Commission had used as the legal basis in the regulation at issue and, second, it held that, in the present case, the conditions for the application of Article 2(10)(k) of the basic regulation were satisfied.

232They maintain that the role of the General Court is limited to examining the legality of acts adopted by the Commission and that its role is not to correct errors of law made by the Commission.

233The undertakings in the Sinopec Group submit that the merits of their ground of appeal are not called into question by the reasoning set out in paragraphs 153 to 156 of the judgment under appeal, which relates to the question whether the Commission demonstrated that the conditions of Article 2(10)(b) of the basic regulation were satisfied and not to the separate question whether the conditions for an adjustment under Article 2(10)(k) of that regulation were satisfied.

234They argue that the findings made by the General Court in paragraphs 158 and 159 of the judgment under appeal should, accordingly, be set aside.

235The Commission, supported by Kuraray, disputes the merits of the arguments put forward by the undertakings in the Sinopec Group as part of their first ground of appeal.

236It contends that it follows from paragraph 153 of the judgment under appeal, which summarises the Commission’s findings from its investigation relating to the Chinese system for partial refund of VAT on exports, and from the conclusions set out in paragraphs 155 and 156 of that judgment, that, according to the General Court, the Commission unquestionably provided evidence that differences in factors other than those referred to in Article 2(10)(a) to (j) of the basic regulation, namely differences concerning non-refundable VAT, were affecting price comparability. On that basis, the General Court correctly inferred, in paragraph 158 of the judgment under appeal, that an adjustment under Article 2(10)(k) of that regulation was justified.

–Findings of the Court

237As a preliminary point, it must be observed that the undertakings in the Sinopec Group do not criticise the General Court’s finding, in paragraphs 154 to 156 of the judgment under appeal, that the Commission had demonstrated the need to adjust the normal value upwards in order to ensure a fair comparison in the light of the fact that the export price included an amount corresponding to the non-refundable VAT, whereas the normal value had been constructed net of VAT.

238By contrast, they complain that the General Court held, in paragraph 157 of the judgment under appeal, that the Commission had relied on the wrong legal basis when it adjusted the normal value upwards by the amount of the non-refundable VAT on the basis of Article 2(10)(b) of the basic regulation, but that that error had no decisive effect on the Commission’s assessment, since that adjustment could validly be made on the basis of Article 2(10)(k) of that regulation.

239It must be held that, in so doing, the General Court did not err in law.

240First of all, the General Court was correct in holding, in paragraph 157 of the judgment under appeal, that Article 2(10)(k) of the basic regulation – according to which an adjustment may be made for differences in other factors not provided for under Article 2(10)(a) to (j) of that regulation, if it is demonstrated that they affect price comparability, in particular if customers consistently pay different prices on the domestic market because of the difference in such factors – allowed the Commission to make the adjustment at issue in order to re-establish the symmetry between the normal value and the export price of the product concerned and to ensure a fair comparison between those two values.

241The General Court thus correctly held that, in the present case, the condition for the application of Article 2(10)(k) of the basic regulation, according to which the party requesting the adjustment is required to demonstrate that the differences referred to in that provision affect price comparability, was satisfied.

242In that regard, it is true that, in paragraph 158 of the judgment under appeal, the General Court appears to have considered that the phrase ‘in particular if customers consistently pay different prices on the domestic market because of [those differences affecting price comparability]’, in Article 2(10)(k) of the basic regulation, was to be understood as laying down a ‘second condition’ for the application of that provision, which, in its view, was also satisfied in the present case.

243However, as the Advocate General also observed in point 233 of his Opinion, that is not an additional condition, but rather pertains to a situation where the condition relating to the demonstration that the difference in question affects price comparability has been satisfied.

244As the expression ‘in particular’ confirms, what is involved is not a condition which must be satisfied each time an adjustment is envisaged under Article 2(10)(k) of the basic regulation, but only a situation in which such an adjustment may be made, since, in such a case, it is to be considered that it has been demonstrated to the requisite legal standard that there are differences affecting price comparability.

245It must be added that, if Article 2(10)(k) of the basic regulation were to be interpreted differently, that provision would not apply where, as in the present case, the normal value is not calculated on the basis of sales on the domestic market, but constructed on the basis of costs of production, which would mean that, given that that provision constitutes a residual category of cases – other than those expressly referred to in Article 2(10)(a) to (j) – in which an adjustment may be made, no adjustment could be made even where there is a difference affecting price comparability and preventing a fair comparison between the export price and the normal value, contrary to the requirement arising from the introductory part of Article 2(10) of the basic regulation.

246A different interpretation would, moreover, be incompatible with the principle, previously recalled in paragraph 110 of the present judgment, that the obligation to make a fair comparison applies in all anti-dumping investigations, irrespective of the methodology used to determine the normal value, thus including cases where the normal value is constructed, as in this instance.

247It follows that, contrary to what is claimed by the undertakings in the Sinopec Group, it cannot be inferred from Article 2(10)(k) of the basic regulation that the adjustment provided for therein is not applicable where the normal value is constructed pursuant to Article 2(6a) of that regulation, since such a constructed normal value would preclude the actual price on the domestic market from being taken into account.

248Next, as the Advocate General also observed, in essence, in point 235 of his Opinion, where an adjustment is necessary in order to ensure a fair comparison, within the meaning of the introductory part of Article 2(10) of the basic regulation, and it is established that the differences found affect price comparability, as required by Article 2(10)(k) of that regulation, an error in the classification of the adjustment, such as that made by the Commission in the regulation at issue by justifying its adjustment on the basis of Article 2(10)(b) of the basic regulation, is purely formal in nature, as those two provisions lay down the same condition for application, namely demonstrating that there is a difference affecting price comparability. The Commission’s error, as identified by the General Court, therefore has no bearing on the validity of the regulation at issue, inasmuch as that error had no decisive effect on the Commission’s decision that an upward adjustment of the normal value by the amount of the non-refundable VAT was necessary, as the General Court correctly held in paragraph 157 of the judgment under appeal (see, by analogy, judgment of 3 December 1996, Portugal v Council, C‑268/94, EU:C:1996:461, paragraph 79).

249Lastly, as regards the claim made by the undertakings in the Sinopec Group that the General Court did not confine itself to examining the legality of the regulation at issue since it corrected the errors of law made by the Commission as regards the classification of the adjustment in question, it must be recalled that, according to the case-law of the Court of Justice, it cannot be alleged that the General Court exceeded its powers of review by substituting its own assessment for that of the Commission where it relies on factors that form an integral part of the Commission’s reasoning set out in the measure at issue and where its assessment is consistent with the operative part of that measure (see, to that effect, judgment of 8 December 2011, France Télécom v Commission, C‑81/10 P, EU:C:2011:811, paragraph 33).

250It follows that the first ground of the cross-appeal brought by the undertakings in the Sinopec Group must be rejected.

The second ground of appeal, alleging infringement of Article 2(6a) of the basic regulation

–Arguments of the parties

251By the second ground of their cross-appeal, the undertakings in the Sinopec Group submit that the General Court misinterpreted Article 2(6a) of the basic regulation by holding, in paragraph 158 of the judgment under appeal, that the normal value constructed under that provision ‘replaces the price of the product concerned on the domestic market of the exporting country.’

252They maintain that, since, according to the wording of that provision, the Commission has recourse to a constructed normal value only ‘in case it is determined … that it is not appropriate to use domestic prices and costs in the exporting country due to the existence in that country of significant distortions’, that institution cannot take account of domestic sales. The purpose of Article 2(6a) of the basic regulation is therefore not to establish or replace the domestic sales price.

253They submit that, accordingly, one of the conditions for making an adjustment under Article 2(10)(k) of the basic regulation, namely that it be demonstrated that ‘customers consistently pay different prices on the domestic market’, is not met where the normal value is constructed under Article 2(6a) of the basic regulation.

254Kuraray contends that the second ground of appeal is inadmissible, since it is not formulated in a clear and precise manner. The Commission, supported by Kuraray, disputes the merits of those arguments put forward by the undertakings in the Sinopec Group.

–Findings of the Court

255As regards, in the first place, the admissibility of the second ground of appeal, it suffices to observe that, contrary to what Kuraray contends, that ground of appeal has been drafted in terms that are sufficiently clear and precise to enable the Court to examine whether it is well founded.

256The second ground of appeal is therefore admissible.

257In the second place, as regards the substance, that ground of appeal cannot, however, succeed.

258First, as has already been held in paragraphs 242 to 246 of the present judgment, the phrase ‘in particular if customers consistently pay different prices on the domestic market because of the difference in such factors’, contained in Article 2(10)(k) of the basic regulation, cannot be understood as laying down an additional condition for the application of that provision.

259Second, as regards the complaint of the undertakings in the Sinopec Group directed against paragraph 158 of the judgment under appeal, in so far as the General Court held in that paragraph that the normal value constructed under Article 2(6a) of the basic regulation ‘replaces the price of the product concerned on the domestic market of the exporting country’, it must be observed that that finding supports the conclusion, set out in paragraph 158 of the judgment under appeal, that ‘the second condition laid down in Article 2(10)(k) of the basic regulation is satisfied in the present case.’ However, in the absence of any additional condition for application laid down in Article 2(10)(k) of the basic regulation, the fact that such a finding may be incorrect has no bearing on the General Court’s conclusion in paragraph 159 of the judgment under appeal. That complaint must therefore be rejected as ineffective.

260It follows that the second ground of the cross-appeal brought by the undertakings in the Sinopec Group must be rejected.

The third ground of appeal, alleging distortion of the evidence

–Arguments of the parties

261By the third ground of their cross-appeal, the undertakings in the Sinopec Group complain that the General Court distorted the evidence by holding, in paragraph 156 of the judgment under appeal, that the Commission had demonstrated the need for an adjustment in respect of non-refundable VAT, without having regard to a decision of the United States Court of International Trade (United States) which they had nevertheless produced. They state that the judgment under appeal makes no reference to that evidence which, however, is essential.

262Kuraray contends that that ground of appeal is inadmissible, since it does not make it possible to identify with certainty the paragraph of the judgment under appeal to which it relates and is insufficiently clear and precise. The Commission, supported by Kuraray, disputes the merits of that ground of appeal.

–Findings of the Court

263In the first place, contrary to what Kuraray contends, it must be held that the third ground of appeal is admissible, since it refers to paragraph 156 of the judgment under appeal and is sufficiently clear and precise to enable the Court to examine its merits.

264That being so, the third ground of appeal cannot, in any event, succeed.

265As has been recalled in paragraph 133 of the present judgment, it is settled case-law that, where an appellant alleges a distortion of the facts or the evidence by the General Court, he or she must indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in his or her view, led to such distortion; in addition, that distortion must be obvious from the documents in the Court’s file, without any need to carry out a new assessment of the facts and the evidence.

266The third ground of appeal put forward by the undertakings in the Sinopec Group, the content of which has been reproduced in paragraph 261 of the present judgment, clearly does not meet the requirements laid down by that case-law.

267It should also be recalled that it follows from settled case-law that the obligation to state reasons does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case and that the reasoning may be implicit on condition that it enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (judgment of 7 June 2018, Equipolymers and Others v Council, C‑363/17 P, EU:C:2018:402, paragraph 46 and the case-law cited).

268It follows that the third ground of the cross-appeal must be rejected.

The fourth ground of appeal, alleging breach of the obligation to state reasons and of the right to be heard

–Arguments of the parties

269By the fourth ground of their cross-appeal, the undertakings in the Sinopec Group contest paragraphs 150 to 156 of the judgment under appeal, by which the General Court held that recital 388 of the regulation at issue was not vitiated by a failure to state reasons and had to be understood as indicating that, in order to ensure a fair comparison, an upward adjustment of the normal value was required, having regard to the fact that the export price included an amount of non-refundable VAT, whereas the normal value had been constructed net of VAT.

270First, those undertakings submit that the General Court infringed their right to be heard since, following the General Court’s alteration of the legal basis for the adjustment, they were unable to submit arguments to the Commission as to why the conditions for the application of Article 2(10)(k) of the basic regulation were not satisfied in the present case and that it cannot be ruled out that the Commission would have refrained from making the adjustment at issue if those undertakings had been able to submit their arguments in that regard.

271Second, those undertakings claim that, since they had immediately and expressly asked the Commission to provide them with an explanation as to why it took the view that an adjustment in respect of non-refundable VAT was necessary, it cannot be considered that the obligation to state reasons, with which that institution was required to comply in the regulation at issue, could validly be fulfilled a posteriori by the General Court in the judgment under appeal.

272The Commission, supported by Kuraray, disputes the merits of those arguments.

–Findings of the Court

273As regards, in the first place, the complaint alleging breach of the right to be heard, the undertakings in the Sinopec Group submit, in essence, that they were unable to submit their arguments to the Commission as to why they considered that, in the present case, the conditions for the application of Article 2(10)(k) of the basic regulation were not satisfied.

274That first complaint cannot be upheld.

275First, it is not in dispute that, before the General Court, the undertakings in the Sinopec Group were in fact able to put forward their arguments by which they claimed that the condition for application relating to demonstrating the existence of a difference affecting price comparability was not satisfied, a condition which is common to Article 2(10)(b) and (k) of the basic regulation and which, moreover, applies generally to all the specific adjustments listed in Article 2(10)(a) to (k) of that regulation, as is apparent from the second sentence of the introductory part of Article 2(10) thereof.

276Thus, as is apparent from paragraphs 153 to 155 of the judgment under appeal, those undertakings were able to dispute the need to adjust the normal value upwards by the amount of the non-refundable VAT on the export price, to which recital 388 of the regulation at issue relates.

277Second, in so far as the undertakings in the Sinopec Group maintain that their right to be heard was not observed specifically in relation to the alleged additional condition for application stemming from the phrase ‘in particular if customers consistently pay different prices on the domestic market because of [those differences affecting price comparability]’, contained in Article 2(10)(k) of the basic regulation, it is true that, in its case-law, the Court of Justice has stated that, in any event, the undertakings concerned must have been placed in a position during the administrative procedure in which they can 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 (judgment of 27 June 1991, Al-Jubail Fertilizer v Council, C‑49/88, EU:C:1991:276, paragraph 17).

278However, as is apparent from paragraphs 262 to 265 of the present judgment, that phrase does not lay down an additional condition which must be satisfied in order to claim an adjustment under that provision.

279Consequently, where, as in this instance, the Commission, after demonstrating the existence of differences affecting price comparability which are not referred to in Article 2(10)(a) to (j) of the basic regulation – in the present case, a difference caused by the non-refundable VAT on export prices – was entitled to take the view that it was necessary to make an adjustment to the normal value under Article 2(10)(k) of that regulation, such a conclusion cannot under any circumstances be called into question on the ground that, in practice, customers consistently pay different prices on the domestic market because of those differences affecting price comparability.

280Accordingly, as the Advocate General also observed in point 257 of his Opinion, the complaint of the undertakings in the Sinopec Group, alleging that they were unable to put forward their arguments with a view to showing that that had not been established in the present case, must be rejected.

281As regards, in the second place, the complaint of the undertakings in the Sinopec Group alleging breach of the obligation to state reasons, it must be stated that, in the present case, the General Court clarified the scope of recital 388 of the regulation at issue following the production by the Commission of certain annexes to its administrative file containing verification reports sent to those undertakings and taking into account explanations provided by that institution, as is apparent from paragraphs 153 to 155 of the judgment under appeal.

282It is true that the content of recital 388 of the regulation at issue was not easy to understand, as the General Court moreover pointed out in paragraph 149 of the judgment under appeal. Nonetheless, the General Court’s consideration of the annexes and explanations provided by the Commission for the purpose of clarifying the scope of that recital falls within the exercise of its unfettered discretion to assess the grounds of the regulation at issue, in the light, inter alia, of the context in which those grounds are set. It cannot in any way be claimed that the General Court thereby substituted, a posteriori, its own reasoning for that provided by the Commission in the regulation at issue.

283In those circumstances, the General Court was entitled to hold, without it being possible to allege that it had infringed its obligation to state reasons, that recital 388 of the regulation at issue contained a statement of reasons that was sufficient to enable interested parties to understand the reasons which led the Commission to make an adjustment to the normal value for the non-refundable VAT included in the export price.

284In that regard, the General Court also correctly relied, in paragraph 152 of the judgment under appeal, on the case-law of the Court of Justice according to which a regulation imposing anti-dumping duties must contain the essential part of the Commission’s reasoning, but need not include specific reasons for each of the numerous factual arguments relied on by the interested parties. The General Court may therefore ask the Commission for additional explanations and take them into account when carrying out its review, provided that they are based on material in the Commission’s file (see, to that effect, judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraphs 92, 93, 95 and 96 and the case-law cited).

285It follows that the fourth ground of the cross-appeal must be rejected and, consequently, the cross-appeal must be dismissed in its entirety.

The action before the General Court

286In accordance with the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the decision of the General Court is set aside, the Court of Justice may itself give final judgment in the matter, where the state of the proceedings so permits.

287In the present case, since the action before the General Court is based on pleas which were the subject of an exchange of arguments before that Court and the examination of which does not require any further measure of organisation of procedure or inquiry to be taken in the case, the Court of Justice considers that the state of the proceedings is such that it may give final judgment in the matter and that it should do so, within the limits of the matter before it (see, by analogy, judgment of 5 March 2024, Kočner v Europol, C‑755/21 P, EU:C:2024:202, paragraph 112 and the case-law cited).

288In that respect, given that the judgment under appeal is to be set aside in so far as it upholds the second complaint of the third plea in law and the first and second parts of the second plea in law in the action before the General Court and in so far as it consequently annuls the regulation at issue to the extent stated in point 1 of the operative part of that judgment, it is appropriate to examine only that complaint and those parts of the action before the General Court.

289As regards, first of all, the second complaint of the third plea in the action before the General Court, by which the undertakings in the Sinopec Group alleged infringement of Article 18 of the basic regulation, in that, in the regulation at issue, the Commission chose to use as ‘facts available’, within the meaning of that provision, the highest normal values, for the same product type, of the exporting producers that cooperated in the investigation, it is apparent from paragraphs 78 to 83 of the present judgment that, in recitals 329 and 333 of the regulation at issue, the Commission did not err in law in making that choice, with the result that that complaint must be rejected.

290So far as concerns, next, the first and second parts of the second plea in the action before the General Court, it must be stated, as regards the second part, that it follows from paragraphs 132 to 150 of the present judgment that the Commission did not fail to meet the requirement of a fair comparison between the export price and the normal value laid down in the introductory part of Article 2(10) of the basic regulation by deducting the costs at issue from the export price, in order to bring that price back to the ‘ex-works’ level, without deducting such costs from the normal value, whereas, according to the undertakings in the Sinopec Group, such costs were, ‘in all likelihood’, part of the SG&A costs of the Turkish exporting producer Ilkalem and used by the Commission to construct the normal value and, accordingly, the dumping margin of the undertakings in the Sinopec Group.

291Moreover, regarding the first part of the second plea in the action before the General Court, alleging infringement of Article 2(10)(i) of the basic regulation, as the Advocate General also observed, in essence, in point 268 of his Opinion, examining that part requires an assessment of whether, in the light of their respective probative value, the five elements referred to in paragraph 80 of the judgment under appeal, taken together, constitute a body of consistent evidence for the purpose of proving that the functions performed by Sinopec Central-China are functions similar to those of an agent working on a commission basis.

292In that respect, it must be observed, as the Advocate General also stated, in essence, in points 269 to 273 of his Opinion, that none of those five elements has such probative value that it constitutes, in itself, conclusive evidence that the functions performed by Sinopec Central-China are functions similar to those of an agent working on a commission basis, such that the conditions for the application of Article 2(10)(i) of the basic regulation are satisfied.

293In the overall assessment required by the examination of whether that provision applies, it must also be taken into account, as the Advocate General stated, in essence, in points 270 and 273 of his Opinion, that it is not disputed that, in the present case, the second and fifth elements, although they are relevant for the purposes of that assessment, are of only limited probative value.

294As is apparent from paragraphs 88 to 93 and paragraphs 103 to 110 of the judgment under appeal, first, the volume of direct export sales concerns only a limited number of sales to the United States, which can be explained by the fact that those direct sales are not subject to anti-dumping measures applying in that third country to Sinopec Central-China, and, second, Sinopec Central-China’s sales volume in respect of products purchased from producers other than Sinopec Chongqing and Sinopec Ningxia is also limited and all those sales were destined for a related company established in China.

295Similarly, the third element, relating to direct sales made in China by Sinopec Chongqing and Sinopec Ningxia, is also of limited probative value, since export sales and sales on the domestic market of an exporting producer may involve related or unrelated companies, or different internal sales departments.

296In view of those factors, it must be concluded that, in the light of their respective probative value, the five elements referred to in paragraph 80 of the judgment under appeal, taken together, do not constitute a body of consistent evidence demonstrating to the requisite legal standard that the functions performed by Sinopec Central-China are similar to those of a trader working on a commission basis, and therefore it must be held that the conditions for the application of Article 2(10)(i) of the basic regulation are not satisfied in the present case.

297Consequently, the first part of the second plea in the action before the General Court, alleging infringement of Article 2(10)(i) of the basic regulation, must be upheld.

298It follows that the regulation at issue must be annulled to the extent that it concerns the undertakings in the Sinopec Group, in so far as, in calculating the rate of the anti-dumping duty affecting imports into the European Union of PVA manufactured and sold by those undertakings, the Commission made downward adjustments to the export price under Article 2(10)(i) of the basic regulation.

Costs

299Under Article 184(2) of the Rules of Procedure, where the appeal is well founded and the Court of Justice itself gives final judgment in the case, the Court is to make a decision as to the costs.

300Article 138 of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 184(1) of those rules, provides, in Article 138(1) thereof, that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings and, in Article 138(3) thereof, that where each party succeeds on some and fails on other heads, the parties are to bear their own costs unless, if it appears justified in the circumstances of the case, the Court orders that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party.

301In the present case, since the Commission has applied for the undertakings in the Sinopec Group to be ordered to pay the costs and those undertakings have been unsuccessful in the proceedings relating to both the main appeal and the cross-appeal, and, to a large extent, in the proceedings before the General Court, it must be ordered that, in addition to bearing their own costs, they pay, first, all the costs incurred by the Commission in the main appeal and in the cross-appeal and, second, 80% of the costs incurred by the Commission at first instance. The Commission must be ordered to bear 20% of its costs incurred at first instance.

302Under Article 184(4) of the Rules of Procedure, where the appeal has not been brought by an intervener at first instance, it may not be ordered to pay costs in the appeal proceedings unless it participated in the written or oral part of the proceedings before the Court of Justice. Where an intervener at first instance takes part in the proceedings, the Court may decide that it is to bear its own costs.

303Consequently, Wegochem and Kuraray must be ordered to bear their own costs incurred in both sets of proceedings.

Operative part

On those grounds, the Court (Fifth Chamber) hereby:

1.Sets aside the judgment of the General Court of the European Union of 21 February 2024, Sinopec Chongqing SVW Chemical and Others v Commission (T‑762/20, EU:T:2024:113), in so far as it upholds the second complaint of the third plea in law in the action and the first and second parts of the second plea in law in the action, and in so far as it annuls Commission Implementing Regulation (EU) 2020/1336 of 25 September 2020 imposing definitive anti-dumping duties on imports of certain polyvinyl alcohols originating in the People’s Republic of China, to the extent stated in point 1 of the operative part of that judgment;

2.Annuls Implementing Regulation 2020/1336 to the extent that it concerns Sinopec Chongqing SVW Chemical Co. Ltd, Sinopec Great Wall Energy & Chemical (Ningxia) Co. Ltd and Central-China Company, Sinopec Chemical Commercial Holding Co. Ltd, in so far as, in calculating the rate of the anti-dumping duty affecting imports into the European Union of polyvinyl alcohols manufactured and sold by them, the European Commission made downward adjustments to the export price under Article 2(10)(i) 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, as amended by Regulation (EU) 2017/2321 of the European Parliament and of the Council of 12 December 2017;

3.Dismisses the action as to the remainder;

4.Dismisses the cross-appeal brought by Sinopec Chongqing SVW Chemical Co. Ltd, Sinopec Great Wall Energy & Chemical (Ningxia) Co. Ltd and Central-China Company, Sinopec Chemical Commercial Holding Co. Ltd;

5.Orders that Sinopec Chongqing SVW Chemical Co. Ltd, Sinopec Great Wall Energy & Chemical (Ningxia) Co. Ltd and Central-China Company, Sinopec Chemical Commercial Holding Co. Ltd, in addition to bearing their own costs, pay all the costs incurred by the European Commission in the main appeal and in the cross-appeal, and pay 80% of the costs incurred by the Commission at first instance;

6.Orders the European Commission to bear 20% of its costs incurred at first instance;

7.Orders Wegochem Europe BV and Kuraray Europe GmbH to bear their own costs relating to both sets of proceedings.

Delivered in open court in Luxembourg on 3 September 2026.