JUDGMENT OF THE GENERAL COURT (Second Chamber)
28 June 2019 (*)
(Dumping — Imports of aspartame originating in China — Refusal to grant market economy treatment — Imposition of a definitive anti-dumping duty — Article 2(7)(b) and (c), second indent, of Regulation (EU) 2016/1036 — Article 2(7)(a) of Regulation 2016/1036 — Article 2(10) of Regulation 2016/1036 — Article 3(2) and (6) of Regulation 2016/1036 — Article 6(7) of Regulation 2016/1036 — Non-conformity of accounting documents — Non-compliance with international accounting standards — Recourse to EU industry data — Request for adjustment — Burden of proof — Right to a fair hearing — Principle of sound administration — Legitimate expectations)
In Case T‑741/16,
Changmao Biochemical Engineering Co. Ltd, established in Changzhou (China), represented by R. Antonini, E. Monard and B. Maniatis, lawyers,
applicant,
v
European Commission, represented by J.‑F. Brakeland, T. Maxian Rusche and N. Kuplewatzky, acting as Agents,
defendant,
supported by
Hyet Sweet, established in Gravelines (France), represented by T. Müller-Ibold, F.‑C. Laprévote and S. Branca, lawyers,
intervener,
APPLICATION under Article 263 TFEU for the annulment of Commission Implementing Regulation (EU) No 2016/1247 of 28 July 2016 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of aspartame originating in the People's Republic of China (OJ 2016 L 204, p. 92),
THE GENERAL COURT (Second Chamber),
composed of M. Prek, President, F. Schalin and M.J. Costeira (Rapporteur), Judges,
Registrar: S. Bukšek Tomac, Administrator,
having regard to the written part of the procedure and further to the hearing on 15 January 2019,
gives the following
Judgment
Background to the dispute
1 On 30 May 2015, following a complaint lodged with its services on 16 April 2015 by Ajinomoto Sweeteners Europe SAS, now Hyet Sweet SAS, an aspartame producer in the European Union, the European Commission, on the basis of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51) (replaced by Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21) (‘the basic regulation’)), and in particular of Article 5 of that regulation, initiated an anti-dumping proceeding concerning imports of aspartame originating in China into the European Union.
2 The investigation of dumping and injury covered the period from 1 April 2014 to 31 March 2015. The examination of trends relevant for the assessment of injury covered the period from January 2011 to the end of the investigation period.
3 On 25 February 2016, the Commission adopted Implementing Regulation (EU) 2016/262 imposing a provisional anti-dumping duty on imports of aspartame originating in the People’s Republic of China (OJ 2016 L 50, p. 4; ‘the provisional regulation’).
4 The product concerned was aspartame (N-L-α-Aspartyl-L-phenylalanine-1-methyl ester, 3-amino-N-(α-carbomethoxy-phenethyl)- succinamic acid-N-methyl ester), bearing reference CAS RN 22839-47-0, originating in China, as well as aspartame originating in China and contained in preparations or mixtures also comprising other sweeteners or water, currently falling within CN code ex 2924 29 98.
5 On 1 April 2016, the applicant, Changmao Biochemical Engineering Co. Ltd, submitted written observations to the Commission concerning the provisional conclusions of the investigation.
6 On 12 May 2016, the applicant attended a hearing with the Commission and the hearing officer, where it presented its observations.
7 On 2 June 2016, the Commission notified the applicant of the definitive conclusions of the investigation.
8 On 13 June 2016, the applicant submitted written observations to the Commission concerning the definitive conclusions of the investigation.
9 On 5 July 2016, the applicant attended a hearing with the Commission and the hearing officer, where it presented its observations.
10 On 28 July 2016, the Commission adopted Implementing Regulation (EU) 2016/1247 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of aspartame originating in the People’s Republic of China (OJ 2016 L 204, p. 92; ‘the contested regulation’).
Procedure and forms of order sought
11 By application lodged at the Court Registry on 21 October 2016, the applicant brought the present action.
12 By document lodged at the Court Registry on 6 December 2016, Hyet Sweet sought leave to intervene in support of the form of order sought by the Commission.
13 By letter lodged at the Court Registry on 5 January 2017, the applicant requested that, in the event of leave to intervene being granted to Hyet Sweet, certain information contained in the application and its annexes should be kept confidential vis-à-vis Hyet Sweet. To that end, the applicant submitted a non-confidential version of the application and of its annexes.
14 On 9 February 2017, the Commission’s defence was lodged at the Court Registry.
15 By letter lodged at the Court Registry on 8 March 2017, the applicant requested that, in the event of leave to intervene being granted to Hyet Sweet, certain information contained in the defence and its annexes should be kept confidential vis-à-vis Hyet Sweet. To that end, the applicant submitted a non-confidential version of the defence and of its annexes.
16 By order of the President of the Second Chamber of 21 March 2017, Hyet Sweet was granted leave to intervene in support of the form of order sought by the Commission.
17 On 3 April 2017, the reply was lodged at the Court Registry.
18 By letter lodged at the Court Registry on 12 April 2017, the intervener challenged the application for confidential treatment.
19 On 19 May 2017, the rejoinder was lodged at the Court Registry.
20 By order of 27 September 2017, the President of the Second Chamber of the General Court upheld in part the application submitted by the applicant for confidential treatment of information vis-à-vis the intervener.
21 On 8 January 2018, the intervener’s statement in intervention was lodged at the Court Registry.
22 On 26 February 2018, the observations of the applicant and of the Commission on the statement in intervention were lodged at the Court Registry.
23 At the hearing on 15 January 2019, the parties presented oral argument.
24 The applicant claims that the Court should:
– order, by way of a measure of organisation of procedure under Article 89(3)(d) of the Rules of Procedure of the General Court, the Commission to produce:
– the analysis, if it exists, in relation to each of the identified differences that led to the findings in recital 70 of the contested regulation and the underlying evidence and information relied upon;
– the analysis, if it exists, that led to the findings in recital 125 of the provisional regulation and the underlying evidence and information relied on for this analysis as well as the analysis, if it exists, regarding the prices paid by the Japanese analogue country producer for raw materials to related suppliers;
– should the Commission not comply with such a measure of organisation of procedure, or expressly request a measure of inquiry because of the need to protect confidential information, order the Commission, by way of a measure of inquiry under Article 91(b) of the Rules of Procedure, to produce the abovementioned documents and, in that case, as a first step, to examine their confidentiality and, as a second step (assuming the analysis, if any, is indeed confidential), to strike a balance between the confidentiality of that information and the right to effective judicial protection, in accordance with Article 103 of the Rules of Procedure;
– annul the contested regulation in so far as it concerns the applicant;
– order the Commission to pay the costs.
25 The Commission and the intervener contend that the Court should:
– reject the request for a measure of organisation of procedure;
– dismiss the application;
– order the applicant to pay the costs.
Law
26 In support of the action, the applicant puts forward five pleas in law. The first plea alleges infringement of Article 2(7)(b) and (c) of the basic regulation and violation of the principles of legitimate expectations and of sound administration. The second plea alleges infringement of Article 2(7)(a) of the basic regulation. The third plea alleges infringement of Article 2(10), Article 3(2)(a) and (3) and Article 9(4) of the basic regulation and violation of the principle of sound administration. The fourth plea alleges infringement of Article 3(2) and (6) of the basic regulation and, in the alternative, of Article 6(7) of the basic regulation. The fifth plea alleges infringement of Article 2(7)(a) and Article 3(2), (3) and (5) of the basic regulation.
27 It is important to recall, as a preliminary point, that, in the realm of measures to protect trade, the EU institutions enjoy broad discretion because of the complexity of the economic, political and legal situations they have to examine (see judgment of 18 March 2009, Shanghai Excell M&E Enterprise and Shanghai Adeptech Precision v Council, T‑299/05, EU:T:2009:72, paragraph 79 and the case-law cited).
28 It follows that review by the EU judicature of assessments made by the institutions must be limited to establishing whether the relevant procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated and whether there has been a manifest error of assessment of those facts or a misuse of power (see judgment of 25 January 2017, Rusal Armenal v Council, T‑512/09 RENV, EU:T:2017:26, paragraph 80 and the case-law cited).
29 That limited judicial review covers, in particular, the choice between the different methods of calculating the dumping margin and the assessment of the normal value of a product (see judgment of 27 September 2007, Ikea Wholesale, C‑351/04, EU:C:2007:547, point 41 and the case-law cited).
30 However, it should be borne in mind that whilst, in areas giving rise to complex economic assessments, the Commission has a margin of discretion with regard to economic matters, that does not mean that the EU Courts must refrain from reviewing the institutions’ interpretation of information of an economic nature. The EU Courts must not only establish whether the evidence put forward is factually accurate, reliable and consistent but must also determine whether that evidence contains all the relevant data that must be taken into consideration in appraising a complex situation and whether it is capable of substantiating the conclusions drawn from it (judgment of 25 January 2017, Rusal Armenal v Council, T‑512/09 RENV, EU:T:2017:26, paragraph 81 and the case-law cited).
First plea, alleging infringement of Article 2(7)(b) and (c) of the basic regulation and violation of the principles of the protection of legitimate expectations and of sound administration
31 The applicant submits, in essence, that the Commission erred in finding that the applicant did not meet the requirements of the second and third indents of Article 2(7)(c) of the basic regulation and so could not be granted market economy treatment (‘MET’).
32 The present plea is divided into two parts.
33 Under the first part, the applicant contests the conclusion of the Commission relating to the non-compliance with the second indent of Article 2(7)(c) of the basic regulation. Under the second part, the applicant contests the conclusion of the Commission relating to the non-compliance with the third indent of Article 2(7)(c) of the basic regulation.
34 The Commission and the intervener contend that the present plea should be rejected.
35 At the outset, it should be recalled that, in accordance with Article 2(7)(a) of the basic regulation, in the case of imports from non-market economy countries, in derogation from the rules set out in Article 2(1) to (6) of that regulation, normal value must, as a rule, be determined on the basis of the price or constructed value in a market economy third country, that is to say, according to the analogue country method. The aim of that provision is thus to prevent account being taken of prices and costs in non-market-economy countries which are not the normal result of market forces (see judgment of 28 February 2018, Commission v Xinyi PV Products (Anhui) Holdings, C‑301/16 P, EU:C:2018:132, paragraph 64 and the case-law cited).
36 However, pursuant to Article 2(7)(b) of the basic regulation, in anti-dumping investigations concerning imports from, inter alia, China, normal value is to be determined in accordance with Article 2(1) to (6) of that regulation if it is shown, on the basis of properly substantiated claims by one or more producers subject to the investigation, and in accordance with the criteria and procedures set out in Article 2(7)(c) of that regulation, that market economy conditions prevail for that producer or those producers in respect of the manufacture and sale of the like product concerned (judgment of 28 February 2018, Commission v Xinyi PV Products (Anhui) Holdings, C‑301/16 P, EU:C:2018:132, paragraph 65).
37 As is apparent from the various regulations from which Article 2(7)(b) of the basic regulation stems, that wording is intended to enable producers subject to market economy conditions having emerged, inter alia, in China to obtain treatment corresponding to their individual situation, rather than to the overall situation of the country in which they are established (see judgment of 28 February 2018, Commission v Xinyi PV Products (Anhui) Holdings, C‑301/16 P, EU:C:2018:132, paragraph 66 and the case-law cited).
38 In application of the powers conferred on them by the basic regulation, it is for the EU institutions to assess whether the evidence supplied by the producer concerned is sufficient to show that the criteria laid down in Article 2(7)(c) of the basic regulation are fulfilled in order to grant it MET, referred to in Article 2(7)(b) of that regulation, and it is for the EU Courts to examine whether that assessment is vitiated by a manifest error. However, there is no obligation on the EU institutions to prove that the exporting producer does not satisfy the criteria laid down for the recognition of such status. The burden of proof lies with the exporting producer wishing to claim MET (see judgment of 25 January 2017, Rusal Armenal v Council, T‑512/09 RENV, EU:T:2017:26, paragraph 82 and the case-law cited).
39 It is common ground, in the present case, that the applicant’s MET claim was rejected on the ground that the applicant had not established that it satisfied the requirements of the second and third indents of Article 2(7)(c) of the basic regulation.
First part, relating to the second indent of Article 2(7)(c) of the basic regulation
40 The applicant submits, in essence, that the Commission misinterpreted and misapplied Article 2(7)(b) and (c) of the basic regulation in finding, in recital 20 of the contested regulation, that it had failed to demonstrate that it satisfied the second criterion of Article 2(7)(c) of that regulation.
41 The present part can be divided into four complaints. The first complaint relates to the non-conformity of the applicant’s accounting records with international accounting standards. The second complaint relates to the applicant’s non-compliance with international accounting standards, including IAS 36. The third complaint relates to the late submission of the requested documents. The fourth complaint relates to the violation of the principles of the protection of legitimate expectations and of sound administration.
42 The Commission and the intervener contend that the present part should be rejected.
– First complaint, relating to the non-conformity of the accounting records with international accounting standards
43 The applicant claims, first, that Article 2(7)(c) of the basic regulation does not require accounting records to be in line with international accounting standards.
44 The Commission and the intervener dispute the applicant’s arguments.
45 At issue in the case at hand is the meaning that should be attributed to the requirement in the second indent of Article 2(7)(c) of the basic regulation according to which ‘a claim under point (b) must be made in writing and contain sufficient evidence that the producer operates under market-economy conditions, that is if: … firms have one clear set of basic accounting records which are independently audited in line with international accounting standards and are applied for all purposes’.
46 The applicant claims that the Commission misinterpreted that criterion in considering that it required accounting records to be in line with international accounting standards.
47 According to the applicant, the second indent Article 2(7)(c) of the basic regulation requires only that the audit be in line with international accounting standards and not the accounting documents themselves, as is indicated by that provision’s use of the adjective ‘conforme’ in the singular.
48 In order to ascertain whether the Commission misinterpreted the second indent of Article 2(7)(c) of the basic regulation, it is necessary to consider not only the wording of that provision but also its context and the objectives pursued by the rules of which it is part (see judgment of 25 January 2017, Rusal Armenal v Council, T‑512/09 RENV, EU:T:2017:26, paragraph 56 and the case-law cited).
49 Moreover, in so far as the interpretation of one of the conditions for granting MET provided for in Article 2(7)(b) of the basic regulation is at issue, account must also be taken of the fact that the method of determining the normal value of a product set out in that provision is an exception to the specific rule laid down for that purpose in Article 2(7)(a) of the basic regulation, which is, in principle, applicable to imports from non-market economy countries. It is settled case-law that any derogation from or exception to a general rule must be interpreted strictly. Since Article 2(7)(c) of the basic regulation specifies the conditions which must be complied with in order for that exception to apply, those conditions must be interpreted strictly (see judgment of 25 January 2017, Rusal Armenal v Council, T‑512/09 RENV, EU:T:2017:26, paragraph 57 and the case-law cited).
50 The purpose of the conditions set out in Article 2(7)(c) of the basic regulation is to impose on an MET applicant a number of obligations aimed at enabling the institutions to ascertain whether it indeed operates under market economy conditions. From that point of view, it must be stated that it is particularly important that the accounting records that an undertaking uses reflect the actual costs incurred by its production, since it is on the basis of those costs that the normal value of its product will be established (judgment of 25 January 2017, Rusal Armenal v Council, T‑512/09 RENV, EU:T:2017:26, paragraph 63).
51 In the light of that objective, the second indent of Article 2(7)(c) of the basic regulation cannot be understood other than as being intended to enable the institutions to satisfy themselves of the accuracy of the accounting records of the undertaking concerned (judgment of 25 January 2017, Rusal Armenal v Council, T‑512/09 RENV, EU:T:2017:26, paragraph 64).
52 It follows that, contrary to what the applicant claims, such a condition cannot be fulfilled solely on the basis that the audit was carried out in accordance with international accounting standards. Such an approach would be contrary to the purpose of the second indent of Article 2(7)(c) of the basic regulation, in that it could result in the grant of MET with regard to an undertaking whose accounting records are not sufficiently reliable. Moreover, such an approach would also be contrary to the principle of strict interpretation of Article 2(7)(b) and (c) of the basic regulation, recalled in paragraph 49 above (judgment of 25 January 2017, Rusal Armenal v Council, T‑512/09 RENV, EU:T:2017:26, paragraph 65).
53 It follows that, in order to be satisfied, the second indent of Article 2(7)(c) of the basic regulation requires accounting records to be in line with international accounting standards.
54 Moreover, the applicant appears to argue that any accounting errors would not preclude recognition of MET.
55 That line of argument is in direct contradiction with, first, the objective pursued by the second indent of Article 2(7)(c) of the basic regulation, namely, to determine whether the MET applicant’s accounting records accurately reflect the production costs for the product concerned, since it is on the basis of those costs that the normal value of its product will be established and, second, the principle of strict interpretation of the conditions for MET specified in the case-law cited in paragraph 49 above (judgment of 25 January 2017, Rusal Armenal v Council, T‑512/09 RENV, EU:T:2017:26, paragraph 71).
56 Accordingly, in view of all the foregoing, the present complaint must be rejected.
– Second complaint, relating to the applicant’s non-compliance with international accounting standards, including IAS 36
57 The applicant claims, in essence, that, in any event, the Commission committed a manifest error of assessment in concluding that the applicant’s accounting records were in breach of international accounting standard 36. The Commission was wrong to allege that an impairment write-down had to be carried out for the conical hybrid dryer (asset F4HG04) and, moreover, that the mandatory impairment test had not been conducted for a specific patent. First, the accounting standard IAS 36 specifies that there is no need to conduct any impairment to individual equipment that does not generate cash inflows that are largely independent of those from other assets. Second, the applicant submitted several pieces of evidence which showed that the impairment test had been carried out in relation to the patent concerned. In addition, in ignoring in its determinations the evidence submitted by the applicant, the Commission breached its duty to examine carefully and impartially all the relevant aspects of the individual case.
58 The Commission and the intervener dispute the applicant’s arguments.
59 As a preliminary point, it should be recalled that the standard IAS 36, defined by Commission Regulation (EC) No 1126/2008 of 3 November 2008 adopting certain international accounting standards in accordance with Regulation (EC) No 1606/2002 of the European Parliament and of the Council (OJ 2008 L 320, p. 1), prescribes the procedures that an entity must apply to ensure that its assets are carried at no more than their recoverable amount.
60 In that regard, it should be noted that, first, paragraph 9 of IAS 36 requires entities to assess at each date of reporting of accounts whether there is any indication that an asset may be impaired. If any such indication exists, the entity is to estimate the recoverable amount of the asset.
61 Paragraph 12(e) of IAS 36 states that, in assessing whether there is any indication that an asset may be impaired, an entity is to consider, as a minimum, whether evidence is available of obsolescence or physical damage of an asset.
62 Second, paragraph 10 of IAS 36 requires an intangible asset with an indefinite useful life or not yet available for use to be tested for impairment annually by comparing its carrying amount with its recoverable amount, irrespective of whether there is any indication that it may be impaired.
63 Third, paragraph 22 of IAS 36 states that recoverable amount is determined for an individual asset, unless the asset does not generate cash inflows that are largely independent of those from other assets or groups of assets. If that is the case, recoverable amount is determined for the cash-generating unit to which the asset belongs.
64 In the light of those considerations, it should be recalled that, in the first place, regarding the conical hybrid dryer, it is apparent from the mission report drawn up by the Commission following the verification visit to the applicant’s premises that the dryer at issue was abandoned outside the factory buildings, dismantled and rusty.
65 It is also apparent from the applicant’s fixed assets ledger that the dryer was still booked in it, but had not undergone any reduction in value, as is required by paragraph 9 of IAS 36 for any asset showing signs of obsolescence or physical damage.
66 Moreover, the applicant’s claim, according to which accounting standard IAS 36 specifies that there is no need to conduct any impairment to individual equipment that does not generate cash inflows that are largely independent of those from other assets, is based on a combined and selective reading of paragraphs 9 and 22 of IAS 36.
67 In the second place, regarding the patent relating to the production of fumaric acid and DL-malic acid, it should be noted, as the Commission highlights in its defence, that the documents submitted by the applicant, which bears the burden of proof in accordance with the case-law cited in paragraph 38 above, do not prove that an impairment test was actually conducted for the patent at issue.
68 Paragraph 10 of IAS 36 requires an intangible asset with an indefinite useful life or not yet available for use to be tested for impairment annually by comparing its carrying amount with its recoverable amount, irrespective of whether there is any indication that it may be impaired.
69 It follows that the Commission, in finding that the failures noted by the auditors were such as to call into question the accuracy of the applicant’s accounts, did not commit a manifest error of assessment and did not breach its duty to examine carefully and impartially all the relevant aspects in the file.
70 It follows that the present complaint must be rejected.
– Third complaint, relating to the late submission of documents
71 The applicant claims that the Commission committed a manifest error of assessment in concluding that certain documents had not been provided in a way to allow for them to be verified. The photographs in annex A 26 to the application show that, on the contrary, all the requested documents were satisfactorily provided. Moreover, basing the decision to refuse to grant MET status on the finding that the documents were not all satisfactorily provided amounted to the imposition of an unreasonable burden of proof on the applicant.
72 The Commission and the intervener dispute the applicant’s arguments.
73 In that regard, in the first place, it should be noted that it is apparent from the mission report that the verification visit to the applicant’s premises took place on 26, 27 and 28 August 2015.
74 In the second place, it should be noted that the applicant does not dispute that, first, the list of assets subject to verification was provided to it in the early morning of the second day of the verification visit and, second, it was, throughout the visit, kept informed of the requested documents it had not yet supplied.
75 In the third place, it should be noted that it is apparent from the mission report that the documents relating to six of the seven assets referred to by the Commission (the purchase invoice, the location of the goods, technical charts, depreciation tables) were provided to the Commission only on the last day of the verification visit, after 19.30.
76 In the fourth place, it should be noted that the applicant has not provided evidence that the Commission’s requests for submission of documents were unreasonable. Those documents were clearly identified by the Commission and constituted accounting records which, presumably, could be produced easily.
77 It is therefore without committing a manifest error of assessment that the Commission could find that certain documents had been provided belatedly by the applicant, making any verification impossible.
78 In addition, it should be noted that the applicant’s claim that the assets referred to by the Commission’s requests for submission of documents were not used for the production of aspartame is not supported by any evidence.
79 Moreover, it should be recalled that the Commission’s decision to reject the applicant’s MET claim was not based on the fact that the applicant had provided certain documents belatedly.
80 It follows that the present complaint must be rejected.
– Fourth complaint, relating to the violation of the principles of legitimate expectations and of sound administration
81 The applicant claims, in essence, that the Commission, in departing from its own previous findings concerning the applicant’s MET status without any reasonable basis, given that no change of any relevance had occurred in the meantime, violated the principle of the protection of legitimate expectations. In addition, the principle of sound administration implies that the Commission should have cogent reasons for departing from its previous decisions. The Commission failed to provide any convincing justification, thereby violating the principle of sound administration.
82 The Commission and the intervener dispute the applicant’s arguments.
83 In that regard, it should be recalled that, according to the case-law, any economic operator for whom an institution has created justified hopes may rely on the principle of the protection of legitimate expectations. However, economic operators do not have a legitimate expectation that an existing situation which may be modified at the discretion of the EU institutions will be maintained (see judgment of 18 September 1996, Climax Paper v Council, T‑155/94, EU:T:1996:118, paragraph 110 and the case-law cited). This is especially true in the realm of measures to protect trade, where the EU institutions enjoy broad discretion because of the complexity of the economic, political and legal situations they have to examine (see judgment of 18 March 2009, Shanghai Excell M&E Enterprise and Shanghai Adeptech Precision v Council, T‑299/05, EU:T:2009:72, paragraph 79 and the case-law cited).
84 Moreover, the examination of any MET claim is subject to strict and thorough review by the Commission. That discretion must be exercised on a case-by-case basis, by reference to all the relevant facts (see, to that effect, judgment of 17 December 2010, EWRIA and Others v Commission, T‑369/08, EU:T:2010:549, paragraph 93 and the case-law cited).
85 Consequently, as the Commission noted in the defence, every fresh MET claim is assessed anew on the basis of objective evidence collected and verified during the corresponding investigation.
86 It follows that no legitimate expectations may be drawn from previous investigations.
87 In the case at hand, the applicant’s MET claim was refused inter alia on the ground that it had not established that it satisfied the requirements of the second indent of Article 2(7)(c) of the basic regulation. In so far as it has been found that the Commission had rightly concluded that the failures noted by the auditors were such as to call into question the accuracy of the applicant’s accounts, the applicant cannot validly rely, in order to invalidate that conclusion, on the earlier Commission decisions concerning it.
88 In the light of all the foregoing, it must be held that the Commission did not commit a manifest error of assessment in finding that the applicant had not demonstrated that the conditions of the second indent of Article 2(7)(c) of the basic regulation were satisfied in the present case.
89 Moreover, the applicant repeatedly argues that the Commission misused its powers.
90 In that regard, it should be borne in mind that the concept of misuse of powers has a precisely defined scope in EU law and refers to cases where an administrative authority has used its powers for a purpose other than that for which they were conferred on it. A decision is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken with the purpose of achieving ends other than those stated (see judgment of 26 January 2017, TV1 v Commission, T‑700/14, not published, EU:T:2017:35, paragraph 323 and the case-law cited).
91 It must be pointed out that the applicant has not put forward any evidence which could indicate that the Commission used its powers for a purpose other than that for which they were conferred on it.
92 Therefore, the arguments alleging misuse of powers must be rejected.
93 Accordingly, it is necessary to reject the present complaint as well as, in consequence, the first part of the plea in its entirety.
Second part, relating to the third indent of Article 2(7)(c) of the basic regulation
94 The applicant submits, in essence, that the Commission misinterpreted and misapplied Article 2(7)(b) and (c) of the basic regulation in finding, in recital 24 of the contested regulation, that it had failed to demonstrate that it satisfied the third criterion of Article 2(7)(c) of that regulation.
95 The Commission and the intervener dispute the applicant’s arguments and contend that the present part should be rejected.
96 In that regard, it should be noted that the conditions listed in Article 2(7)(c) of the basic regulation are cumulative, such that, should a producer fail to fulfil one of them, its MET claim must be rejected (see judgment of 25 January 2017, Rusal Armenal v Council, T‑512/09 RENV, EU:T:2017:26, paragraph 43 and the case-law cited).
97 In the light of the conclusions resulting from the examination of the first part of the plea, it is not necessary to examine the merits of the second part of the plea, alleging infringement of the third indent of Article 2(7)(c) of the basic regulation.
98 It follows that it is necessary to dismiss as ineffective the second part of the plea and, consequently, to reject the first plea in its entirety.
Second plea, alleging infringement of Article 2(7)(a) of the basic regulation
99 The applicant submits that the Commission infringed Article 2(7)(a) of the basic regulation by resorting to EU industry data instead of analogue country data for the determination of the normal value of the product concerned.
100 First, the applicant submits, in essence, that Article 2(7)(a) of the basic regulation permits use of ‘[an]other reasonable basis’ to determine the normal value if and only if use of data from an analogue country is not possible. The Commission concluded, wrongly, that, as a result of the impossibility of using the prices charged domestically by the analogue country exporting producer, it had to resort to ‘any other reasonable basis’. The Commission should, in the present case, have given priority to the use of the export prices of the analogue country producer. Second, the applicant maintains, in essence, that the Commission failed to show that it had taken due care to search for analogue countries.
101 The Commission and the intervener dispute the applicant’s arguments and contend that the plea should be rejected.
102 As a preliminary point, it should be remembered that the choice of reference country is a matter falling within the discretion enjoyed by the institutions in analysing complex economic situations. However, the exercise of that discretion is not excluded from review by the Court. It is for the Court to verify whether the relevant procedural rules have been complied with, whether the facts on which the choice is based have been accurately stated and whether there has been a manifest error of appraisal or a misuse of powers (judgment of 22 October 1991, Nölle, C‑16/90, EU:C:1991:402, paragraphs 11 and 12).
103 As regards in particular the choice of analogue country, it is desirable to verify that the institutions have not neglected to take account of essential factors for the purpose of establishing the appropriate nature of the country chosen and that the information contained in the documents in the case was considered with all the care required for the view to be taken that the normal value was determined in an appropriate and not unreasonable manner (see judgment of 22 March 2012, GLS, C‑338/10, EU:C:2012:158, paragraph 22 and the case-law cited).
104 It should also be recalled that Article 2(7)(a) of the basic regulation provides as follows:
‘… normal value shall be determined on the basis of the price or constructed value in a market economy third country, or the price from such a third country to other countries, including the Union, or where those are not possible, on any other reasonable basis, including the price actually paid or payable into the Union for the like product, duly adjusted if necessary to include a reasonable profit margin.
An appropriate market-economy third country shall be selected in a not unreasonable manner, due account being taken of any reliable information made available at the time of selection. Account shall also be taken of time limits. Where appropriate, a market-economy third country which is subject to the same investigation shall be used.
The parties to the investigation shall be informed shortly after its initiation of the market-economy third country envisaged and shall be given 10 days to comment.’
105 First, what is at issue in the case at hand is the interpretation that should be given to the expression ‘where those are not possible’ contained in the first indent of Article 2(7)(a) of the basic regulation.
106 The applicant appears to submit that Article 2(7)(a) of the basic regulation permits use of ‘[an]other reasonable basis’ to determine the normal value if and only if use of data from an analogue country is not possible.
107 In order to ascertain whether the Commission misinterpreted the first indent of Article 2(7)(a) of the basic regulation, it is necessary to consider not only the wording of that provision but also its context and the objectives pursued by the rules of which it is part (see, by analogy, judgment of 25 January 2017, Rusal Armenal v Council, T‑512/09 RENV, EU:T:2017:26, paragraph 56 and the case-law cited).
108 In that regard, it should be noted that it is indeed apparent from the wording and scheme of the first indent of Article 2(7)(a) of the basic regulation that, in the case of imports from non-market economy countries, the normal value of the product concerned is to be determined, in the main, on the basis ‘of the price or constructed value in a market economy third country’ or ‘the price from such a third country to other countries, including the Union’ or, in the alternative, ‘on any other reasonable basis, including the price actually paid or payable in the Union for the like product, duly adjusted’ (judgment of 22 March 2012, GLS, C‑338/10, EU:C:2012:158, paragraph 24).
109 It follows that the discretion enjoyed by the EU institutions in the choice of an analogue country does not authorise them to evade the obligation of choosing a market economy third country where such a choice is possible. They may choose not to apply the general rule set out in Article 2(7)(a) of the basic regulation for the determination of the normal value of products originating in non-market economy countries, using some other reasonable basis, only where it is impossible to apply that general rule (judgment of 22 March 2012, GLS, C‑338/10, EU:C:2012:158, paragraph 26).
110 However, it should be borne in mind that, under the second indent of Article 2(7)(a) of the basic regulation, an appropriate market economy third country is to be selected in a not unreasonable manner, due account being taken of any reliable information made available at the time of selection. Indeed, it is for the EU institutions, whilst taking account of the possible alternatives, to try to find a third country in which the prices for a like product are formed in circumstances which are as similar as possible to those in the country of export, provided that it is a market economy country (judgment of 22 March 2012, GLS, C‑338/10, EU:C:2012:158, paragraph 21).
111 The EU institutions may choose not to apply the general rule, where the information available at the time of choosing is not reliable and is likely to lead to an inappropriate and unreasonable choice of analogue country (judgment of 23 October 2003, Changzhou Hailong Electronics & Light Fixtures and Zhejiang Yankon v Council, T‑255/01, EU:T:2003:282, paragraph 59).
112 In recital 31 of the contested regulation, first of all, the Commission found, following verification, that the data provided by the Japanese were not reliable. The Commission inter alia noted that the profit margins achieved by the producer in respect of customers varied greatly and unjustifiably between types and sizes of customers.
113 Next, in the defence, the Commission stressed, without being contradicted by the applicant, that Table 15 of the Japanese producer’s reply to the anti-dumping questionnaire, relating to profit and loss, showed that, while all domestic sales were highly profitable, all export sales were loss-making.
114 Last, it is apparent from recitals 26 to 28 of the contested regulation that interested parties, including the applicant, raised concerns, following the provisional disclosure, as to the choice of Japan as an analogue country. In particular, it is apparent from recital 28 of the contested regulation that, according to one party, the choice of Japan as an analogue country is the worst possible scenario and that the result of the comparison between Japanese prices and Chinese prices show that it was not a realistic or reasonable choice.
115 In view of the foregoing, it should be considered that the Commission did not infringe Article 2(7)(a) of the basic regulation by resorting to EU industry data for the determination of the normal value of the product concerned, in so far as the information available at the time of the choice was not reliable and was likely to lead to an inappropriate and unreasonable choice of analogue country.
116 Accordingly, the applicant’s argument that the Commission should have given priority to the use of the export prices of the analogue country producer must be rejected.
117 Furthermore, it is important to note that the anti-dumping duties were fixed on the basis of the injury margin, in accordance with the ‘lesser duty’ rule laid down in Article 9(4) of the basic regulation.
118 It should be noted that the applicant, which bears the burden of proof, has not provided any evidence to support the claim that the dumping margin would have been lower than the injury margin had the Japanese exporting producer’s export sales been taken into account (see, to that effect, judgment of 14 March 1990, Nashua Corporation and Others v Commission and Council, C‑133/87 and C‑150/87, EU:C:1990:115, paragraph 38). The applicant merely makes a general criticism of the fact that it did not avail itself of that possibility.
119 Second, the applicant submits that the Commission failed to take due care in the search for analogue countries.
120 In that regard, in the first place, it should be pointed out that it is common ground that, first, aspartame was produced in a limited number of countries, namely, in China, Japan, South Korea and in the European Union.
121 Second, in order to investigate all possibilities for selecting an appropriate analogue country, the Commission invited all known unrelated importers, the sampled Chinese exporting producers, China Chamber of International Commerce, and China Chamber of Commerce of Metals, Minerals & Chemicals Importers & Exporters to provide all relevant information of any potential market economy third countries other than Japan and South Korea.
122 Third, on the basis of the comments received, the Commission contacted a known producer of aspartame in South Korea and Japan, to which it sent a questionnaire and requested all relevant information concerning other producers of aspartame.
123 Fourth, only the Japanese producer agreed to cooperate in the investigation.
124 In the second place, it should be recalled that, given that the producers in the envisaged analogue third countries are not required to cooperate, the fact that they do not accept the Commission’s invitation to cooperate cannot constitute a breach of the duty of care incumbent on that institution (judgment of 10 September 2015, Fliesen-Zentrum Deutschland, C‑687/13, EU:C:2015:573, paragraph 55).
125 In the third place, it should be made clear that no provision of the basic regulation confers on the Commission the power to compel the producers or exporters which are the subject of a complaint to produce information. The Commission is therefore reliant on the voluntary cooperation of the interested parties to obtain the necessary information (see, to that effect and by analogy, judgment of 26 January 2017, Maxcom v City Cycle Industries, C‑248/15 P, C‑254/15 P and C‑260/15 P, EU:C:2017:62, paragraph 62 and the case-law cited).
126 Moreover, as is apparent from the file and from the rejoinder, the questionnaire sent by the Commission to the Japanese exporting producer corresponds to the standard questionnaire sent in these procedures.
127 It follows that, contrary to what the applicant submits, it is apparent from the elements set out above that, given, in particular, the rarity of aspartame producers in similar countries and the difficulty of finding a producer willing to cooperate with it in the investigation procedure, the Commission took all due care in the search for an appropriate analogue country.
128 The applicant cannot therefore criticise the Commission, in order to undermine that conclusion, for not having taken the necessary steps to obtain all the relevant information. Furthermore, it should be pointed out that the applicant does not provide any evidence to substantiate the claim that the Commission could have obtained more information, but merely makes a general criticism of the fact that the Commission refrained from requesting of the Japanese exporting producer a transaction-by-transaction assessment of its export sales.
129 Thus, in view of all the foregoing, the choice to use EU industry data was made in a reasonable manner, taking into account all the reliable information available at the time of that choice, and with all due care.
130 Accordingly, the present plea must be rejected without there being any need to examine the plea of inadmissibility raised by the Commission on the basis of Article 84(1) of the Rules of Procedure.
Third plea, alleging infringement of Article 2(10), Article 3(2)(a) and (3) and Article 9(4) of the basic regulation and violation of the principle of sound administration
131 The applicant submits that the Commission infringed Article 2(10), Article 3(2)(a) and (3) and Article 9(4) of the basic regulation and violated the principle of sound administration by refusing to make the adjustments necessary to ensure a fair price comparison.
132 In that regard, the applicant submits, in the first place, that, in view of the particular circumstances arising from the fact that the normal value was determined on the basis of EU industry data that were not available to it, the Commission was under a special obligation to make adjustments in order to ensure price comparability for the purposes of determining both the dumping margin and the existence of injury.
133 The applicant submits, in the second place, that the Commission imposed an unreasonable burden of proof on it and, accordingly, violated its rights of defence in taking the view that it had not produced any evidence demonstrating that purchasers systematically paid different prices on the domestic market due to differences in production costs, when EU industry data were not accessible to it. In addition, the Commission’s allegation that consumers are not ready to pay different prices for domestic and export products is contradicted by the findings of the investigation.
134 The applicant further claims that the Commission merely stated, without carrying out an analysis, that the investigation did not find that there was a price premium or reveal the existence of a quality or any other difference between the product concerned and the like product that would be systematically reflected in the prices.
135 The Commission and the intervener dispute the applicant’s arguments and contend that the plea should be rejected.
136 In the first place, the applicant submits that, having regard to the particular nature of the situation, the Commission was under a special obligation to make the adjustments provided for in Article 2(10) of the basic regulation in order to ensure price comparability.
137 First, regarding the Commission’s obligation to make adjustments for the purposes of determining the dumping margin, it should be recalled that Article 2(10) of the basic regulation provides the following:
‘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. …’
138 According to the case-law, it is apparent from both the wording and the scheme of Article 2(10) of the basic regulation that an adjustment to the export price or the normal value may be made only in order to take account of differences in factors which affect the prices and therefore their comparability. That means, in other words, that the purpose of an adjustment is to re-establish the symmetry between normal value and export price (see judgment of 23 September 2009, Dongguan Nanzha Leco Stationery v Council, T‑296/06, EU:T:2009:347, paragraph 42 and the case-law cited).
139 Those adjustments may not be made automatically; it is for the party which seeks to benefit from them to prove that they are justified (see judgment of 8 July 2008, Huvis v Council, T‑221/05, not published, EU:T:2008:258, paragraph 76 and the case-law cited).
140 In the case at hand, it is apparent from recital 48 of the contested regulation that the applicant claimed, during the administrative procedure, that there were differences in the costs of production costs between the Union producer and the Chinese producer justifying adjustments. According to the applicant, those differences, which relate in particular to the production process, regulatory requirements, packaging costs, labour costs, access to raw materials, energy, additional services provided by the EU industry and additional expenditure linked to patents, affect price comparability.
141 It is also apparent from recital 49 of the contested regulation that the Commission noted that the applicant had not provided any evidence to substantiate the alleged differences in the costs of production which affect price comparability and, more specifically, the fact that customers consistently pay different prices on the domestic market because of the difference in those factors.
142 The applicant does not dispute, in its written pleadings, the Commission’s assertion that it did not provide any evidence in support of its request for an adjustment.
143 In the light of the foregoing, even though the applicant had stated, during the administrative procedure, that the alleged differences affected price comparability and, therefore, that they required adjustments, it was for it, in accordance with the case-law recalled in paragraph 139 above, to demonstrate that those differences in costs translated into differences in prices, which it did not do.
144 Therefore, the applicant cannot complain that the Commission infringed Article 2(10) of the basic regulation by refusing to make the adjustments requested for the purposes of determining the dumping margin.
145 Second, as regards the Commission’s obligation to make adjustments for the purposes of determining the existence of injury, it should be noted that Article 3(2)(a) of the basic regulation states that ‘a determination of injury shall be based on positive evidence and shall involve an objective examination of … the volume of the dumped imports and the effect of the dumped imports on prices in the Union market for like products’.
146 Article 3(3) of the basic regulation provides the following:
‘With regard to the volume of the dumped imports, consideration shall be given to whether there has been a significant increase in dumped imports, either in absolute terms or relative to production or consumption in the Union. With regard to the effect of the dumped imports on prices, consideration shall be given to whether there has been significant price undercutting by the dumped imports as compared with the price of a like product of the Union industry, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which would otherwise have occurred, to a significant degree. No one or more of those factors can necessarily give decisive guidance.’
147 Article 9(4) of the basic regulation states:
‘Where the facts as finally established show that there is dumping and injury caused thereby, and the Union interest calls for intervention in accordance with Article 21, a definitive anti-dumping duty shall be imposed by the Commission acting in accordance with the examination procedure referred to in Article 15(3). Where provisional duties are in force, the Commission shall initiate that procedure no later than one month of the expiry of such duties.
The amount of the anti-dumping duty shall not exceed the margin of dumping established but it should be less than the margin if such lesser duty would be adequate to remove the injury to the Union industry.’
148 In the light of the foregoing, it must be noted that none of the provisions of the basic regulation cited by the applicant requires the Commission to make, for the purposes of determining the existence of injury, the adjustments provided for in Article 2(10) of the basic regulation.
149 It must also be noted that the judgment of 17 February 2011, Zhejiang Xinshiji Foods and Hubei Xinshiji Foods v Council (T‑122/09, not published, EU:T:2011:46), cited by the applicant in support of its claim, does not hold that the Commission must make the adjustments provided for in Article 2(10) of the basic regulation in determining the existence of injury. That judgment concerns an infringement of the applicants’ rights of defence and a failure to state the reasons for the contested regulation. More specifically, the Court found that the applicants were correct in claiming that their rights of defence had been infringed as a result of their not being granted access to the information necessary for them to determine whether, in the light of the structure of the market, the adjustment in dispute was appropriate in that it made it possible to compare the export price and the Union industry price at the same level of trade.
150 Therefore, the applicant cannot complain that the Commission infringed Article 2(10) of the basic regulation by refusing to make the adjustments requested for the purposes of determining the existence of injury.
151 In any event, it must be borne in mind that, since the applicant did not benefit from MET, the data concerning it could not be taken into account in the present case.
152 It is apparent from the case-law that the provisions of Article 2(10) of the basic regulation cannot be used in order to render Article 2(7)(a) of that regulation ineffective (see, to that effect, judgment of 10 October 2012, Shanghai Biaowu High-Tensile Fastener and Shanghai Prime Machinery v Council, T‑170/09, not published, EU:T:2012:531, paragraph 123).
153 Moreover, contrary to what the applicant claims in the reply, Chinese exporting producers may make requests for adjustments. Only, if they do not benefit from MET, their requests cannot relate to the actual costs in China, so as not to render Article 2(7)(a) of the basic regulation ineffective (see, to that effect, judgment of 10 October 2012, Shanghai Biaowu High-Tensile Fastener and Shanghai Prime Machinery v Council, T‑170/09, not published, EU:T:2012:531, paragraph 123). Thus, where an exporting producer that was denied MET wishes to make use of the price adjustment procedure under Article 2(10) of the basic regulation, the burden of proof is on that exporting producer to provide evidence that the conditions for granting such an adjustment are satisfied, without rendering Article 2(7)(a) of the basic regulation ineffective.
154 In the second place, the applicant claims that the Commission imposed an unreasonable burden of proof on it in requiring it to demonstrate that the alleged differences translated into price differences when it did not have access to EU industry data. More specifically, the Commission did not indicate to the applicant what information it had to provide to substantiate its request for an adjustment to show the impact on price comparability.
155 It is apparent from recital 40 of the contested regulation, however, that, as part of the final disclosure, the Commission disclosed to each Chinese exporting producer the characteristics and the type of product it used when constructing the normal values with regard to all product types including the types exported from China to the European Union which were not completely matching the types sold in the European Union by the EU industry.
156 It is also apparent from recital 47 of the contested regulation that the Commission disclosed to the applicant data relating to the EU producer on which it was able to comment.
157 Moreover, as the Commission highlights in the rejoinder, first, its questionnaire contained specific instructions regarding the details which exporting producers had to provide in order to obtain an adjustment. Second, the letter of 11 April 2015, sent before the verification visits, stipulated that the applicant was to ensure that all supporting documents were available for the investigation.
158 Furthermore, as has been found in paragraph 143 above, it was for the applicant, in accordance with the case-law recalled in paragraph 139 above, to demonstrate that the alleged differences in costs translated into differences in prices, which it did not do. As has already been established by the case-law, mere assertions do not suffice as justification for an adjustment (see judgment of 8 July 2008, Huvis v Council, T‑221/05, not published, EU:T:2008:258, paragraph 76 and the case-law cited).
159 In those circumstances, the applicant cannot validly complain that the Commission failed to act in accordance with the principle of sound administration and violated its rights of defence by imposing an unreasonable burden of proof on it.
160 Last, it should be observed that the applicant has not submitted any evidence to demonstrate that the Commission’s conclusion that the investigation did not find that there was a price premium or reveal the existence of a quality or any other difference between the product concerned and the like product that would be systematically reflected in the prices is incorrect.
161 It follows, in view of all the foregoing, that the Commission did not infringe Article 2(10), Article 3(2)(a) and (3) and Article 9(4) of the basic regulation or violate the principle of sound administration by refusing to make the adjustments requested by the applicant.
162 Accordingly, the present plea must be rejected without there being any need to examine the plea of inadmissibility raised by the Commission on the basis of Article 76(d) of the Rules of Procedure.
Fourth plea, alleging infringement of Article 3(2) and (6) of the basic regulation and, in the alternative, Article 6(7) of that regulation
163 The applicant submits that the Commission infringed Article 3(2) and (6) of the basic regulation and, in the alternative, Article 6(7) of that regulation.
164 The present plea can be divided into two complaints. The first complaint alleges infringement of Article 3(2) and (6) of the basic regulation. The second complaint, raised in the alternative, alleges infringement of Article 6(7) of the basic regulation.
165 The Commission and the intervener contend that the plea should be rejected.
First complaint, alleging infringement of Article 3(2) and (6) of the basic regulation
166 The applicant alleges that the Commission failed to examine carefully and impartially all the relevant aspects and did not make an objective examination on the basis of positive evidence, in accordance with Article 3(2) and (6) of the basic regulation. In that regard, the applicant maintains that the Commission’s finding in recital 88 of the contested regulation, according to which dumped imports caused material injury to the EU industry within the meaning of Article 3(6) of the basic regulation, was based on the conclusion that the maximal impact of the cost of raw material on the cost/price development of the product concerned and the like product was a 4.6% decrease. That conclusion was based on the incorrect finding that the two main raw materials used in the production of aspartame represent 25% of the total cost of production of the product concerned and the like product. The Commission wrongly relied on the data of the EU industry and on the data of the analogue country producer, instead of the cost data of the Chinese producers, the relevance of which it dismissed since, in the absence of MET, those data were not verified.
167 The Commission and the intervener dispute the applicant’s arguments.
168 In that regard, it should be noted that Article 3(2) of the basic regulation provides that ‘a determination of injury shall be based on positive evidence and shall involve an objective examination of … the volume of the dumped imports and the effect of the dumped imports on prices in the Union market for like products; and … the consequent impact of those imports on the Union industry’.
169 Article 3(5) of the basic regulation provides the following:
‘The examination of the impact of the dumped imports on the Union industry concerned shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry, including the fact that an industry is still in the process of recovering from the effects of past dumping or subsidisation; the magnitude of the actual margin of dumping; actual and potential decline in sales, profits, output, market share, productivity, return on investments and utilisation of capacity; factors affecting Union prices; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments. This list is not exhaustive, nor can any one or more of these factors necessarily give decisive guidance.’
170 Article 3(6) of the basic regulation provides as follows:
‘It must be demonstrated, from all the relevant evidence presented in relation to paragraph 2, that the dumped imports are causing injury within the meaning of this Regulation. Specifically, that shall entail demonstrating that the volume and/or price levels identified pursuant to paragraph 3 are responsible for an impact on the Union industry as provided for in paragraph 5, and that that impact exists to a degree which enables it to be classified as material.’
171 In recital 109 of the provisional regulation, the Commission inter alia noted that the investigation had shown that Chinese prices were already lower than those of the Union industry in 2011 and they decreased further by 12% during the period considered.
172 In recital 110 of the provisional regulation, after having found, first, that the two amino acids making up aspartame together represented approximately 25% of total cost of production and, second, that the prices of those two raw materials had changed during the period considered by roughly +3.5% and ‐27% respectively, the Commission had concluded that the price development of the raw materials could maximally explain only a 3% reduction in the production costs or prices of aspartame. That meant, according to the Commission, that the 12% reduction observed concerning the Chinese prices was the result of a rather aggressive pricing strategy by the Chinese exporting producers on the EU market.
173 In recital 87 of the contested regulation, the Commission maintained the conclusion in recital 110 of the provisional regulation according to which the two amino acids making up aspartame together represented approximately 25% of the total cost of production of the product concerned and the like product.
174 In recital 88 of the contested regulation, the Commission considered that the maximal impact of the cost of raw material on the cost/price developments of the product concerned and like product is a 4.6% decrease. Contrary to what the applicant claimed, the decrease in price of raw materials cannot rationally explain the 12% decrease in the prices of the product concerned noted during the investigation procedure.
175 The applicant criticises the Commission for having rejected, for the purposes of the evaluation of the importance of the raw materials prices in the total cost of production, the relevance of the data relating to the costs of the Chinese producers and for having relied on the data of the Union industry and on the data of the Japanese producer.
176 It should be borne in mind that, in the present case, and pursuant to Article 2 of the basic regulation, if it had been considered that the applicant was operating under market economy conditions, the normal value of its goods would have been determined in accordance with the rules applicable to market economy countries, namely on the basis of the information it had disclosed. However, given that it had been denied MET, the data relating to the applicant’s costs could not be taken into account for the purposes of the determination of the existence of injury, so as not to render Article 2(7)(a) of the basic regulation ineffective.
177 It follows that, even though the Commission had identified and verified the costs of the applicant’s main inputs, it could not make use of them for the purposes of determining the existence of injury, since the applicant’s MET claim had been rejected.
178 It follows that the Commission was right to find that the data relating to the applicant’s costs could not be taken into consideration for the purposes of the determination of the existence of injury.
179 Thus, the applicant cannot validly allege that the Commission failed to examine carefully and impartially all the relevant aspects and did not make an objective examination on the basis of positive evidence, in accordance with Article 3(2) and (6) of the basic regulation.
180 The present complaint must therefore be rejected.
Second complaint, alleging infringement of Article 6(7) of the basic regulation
181 The applicant submits, in the alternative, that the Commission infringed Article 6(7) of the basic regulation by failing to include the questionnaire responses or any other information submitted by the supplier of the EU producer, which deprived the applicant of access to that information.
182 The Commission and the intervener dispute the applicant’s arguments.
183 Article 6(7) of the basic regulation states that the interested parties may, upon written request, inspect all information made available by any party to an investigation, as distinct from internal documents prepared by the authorities of the European Union or those of the Member States, which is relevant to the presentation of their cases, not confidential and is used in the investigation.
184 According to the case-law, it follows from the wording of Article 6(7) of the basic regulation that the interested parties in an anti-dumping investigation procedure, such as the applicant, may raise a complaint regarding the absence of a document only if four cumulative conditions are met. First, such a document must contain information provided to the Commission by a party to the investigation, which must have been used in the course of that investigation. Second, that document must not be either an internal document prepared by the EU authorities nor be confidential. Third, the information contained in that document must be relevant for the defence of the interests of the interested party in question. Finally, fourth, that interested party must have submitted a written request to inspect the said document (judgment of 30 June 2016, Jinan Meide Casting v Council, T‑424/13, EU:T:2016:378, paragraph 109).
185 As a preliminary point, it should be pointed out that the supplier was not invited by the Commission to complete a questionnaire, since the Commission took the view, as is mentioned in recital 125 of the provisional regulation and in recital 127 of the contested regulation, that the investigation had established that it sold the raw material at the same prices to the EU industry as to other third unrelated parties, namely at arm’s length.
186 Therefore, the present complaint requires it first to be verified whether the Commission, in accordance with its obligation to undertake a careful and impartial examination, was required to collect that information, to which the applicant considers that it should have had access.
187 In accordance with Article 6(8) of the basic regulation, the Commission has a degree of discretion in determining the reliability of the information gathered, since examination of the accuracy of the information is to be made ‘as far as possible’ (judgment of 23 September 2015, Hüpeden v Council and Commission, T‑206/14, not published, EU:T:2015:672, paragraph 44).
188 Moreover, it is apparent from recital 86 of the contested regulation that an open summary of the information concerning the raw material prices was put in the non-confidential file for consultation by interested parties.
189 In that regard, it should be noted that the applicant does not refer, in its arguments, to specific evidence communicated to the Commission which could have called into question the Commission’s conclusion that the Union industry purchased the raw materials at market prices.
190 It is also apparent from recital 128 of the contested regulation that the observations submitted by the applicant in that regard during the administrative procedure were not accompanied by such evidence, either.
191 It follows that the Commission did not fail to fulfil its obligation of sound administration by not inviting the supplier to complete a questionnaire or to provide additional information. Consequently, the present complaint must be rejected.
192 In any event, infringement of the right of access to the investigation file can result in the annulment of the contested regulation only if there is a chance, albeit slight, that disclosure of the documents in question might cause the administrative procedure to have a different result if the undertaking concerned is able to rely on them during that procedure (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 174).
193 However, the applicant does not explain how, were it not for the alleged irregularity, the anti-dumping proceeding might have had a different result.
194 It follows that it is necessary to reject the present complaint and, consequently, the present plea in its entirety.
Fifth plea, alleging infringement of Article 2(7)(a) and Article 3(2), (3) and (5) of the basic regulation
195 The applicant submits, in essence, that, by relying on data affected by the relationship between the EU producer and its supplier of raw materials, the Commission infringed Article 2(7)(a) and Article 3(2), (3) and (5) of the basic regulation. According to the applicant, the Commission should have requested the supplier to complete a questionnaire, checked the accuracy of its responses and made an in-depth analysis of the prices charged by the supplier. Moreover, in the absence of willingness on the part of the related supplier to cooperate, the Commission should have disregarded the cost data relating to transactions between the related parties. At the very least, the Commission failed to examine the impact of that relationship in an impartial and accurate way.
196 The Commission and the intervener dispute the applicant’s arguments and contend that the plea should be rejected.
197 In the first place, the applicant criticises the Commission for not having analysed, for the purposes of determining the dumping margin and injury margin, the relationship between the EU producer and the supplier of raw materials. More specifically, the applicant submits that the data relating to the costs and prices of the Union industry are distorted by that relationship.
198 According to well-established case-law, determination of injury involves the assessment of complex economic matters. In that respect, the EU institutions enjoy a wide discretion. The EU Courts must therefore restrict their review to verifying whether the procedural rules have been complied with, whether the facts on which the contested choice is based are accurate or whether there has been a manifest error of assessment or a misuse of powers (see judgment of 20 May 2015, Yuanping Changyuan Chemicals v Council, T‑310/12, not published, EU:T:2015:295, paragraphs 127 and 128 and the case-law cited).
199 It is for the applicant to adduce evidence enabling the Court to find that the Commission made a manifest error of assessment when determining injury (see, to that effect, judgment of 20 May 2015, Yuanping Changyuan Chemicals v Council, T‑310/12, not published, EU:T:2015:295, paragraph 129 and the case-law cited).
200 In the present case, it should be noted that the applicant provides no evidence in support of the assertion that the data relating to the costs and prices of the Union industry are distorted by the relationship between the EU producer and the supplier of raw materials.
201 That argument must therefore be rejected.
202 In the second place, the applicant criticises the Commission for not requesting the supplier of raw materials to complete a questionnaire, checking the accuracy of the responses or making an in-depth analysis of the prices it charged.
203 In that regard, as has been recalled in paragraph 187 above, in accordance with Article 6(8) of the basic regulation, the Commission has a degree of discretion in determining the reliability of the information gathered, since examination of the accuracy of the information is to be made ‘as far as possible’ (judgment of 23 September 2015, Hüpeden v Council and Commission, T‑206/14, not published, EU:T:2015:672, paragraph 44).
204 That argument must therefore be rejected.
205 It follows from all the foregoing that the applicant cannot validly plead a failure on the part of the Commission to fulfil its obligation to examine carefully and impartially all the relevant aspects of the individual case.
206 It follows that the Commission did not commit any infringement of Article 2(7)(a) and Article 3(2), (3) and (5) of the basic regulation.
207 Accordingly, the present plea must be rejected and, consequently, the action must be dismissed in its entirety, without it being necessary to grant the applicant’s requests for measures of organisation of procedure and inquiry.
Costs
208 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
209 Since the applicant has been unsuccessful, and since the Commission and the intervener have applied for costs, the applicant must be ordered to pay the costs.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1. Dismisses the action;
2. Orders Changmao Biochemical Engineering Co. Ltd to pay the costs.
Delivered in open court in Luxembourg on 28 June 2019.