Case T‑466/12

RFA International, LP

v

European Commission

(Dumping — Imports of ferro-silicon originating in Russia — Refusal of applications for a refund of anti-dumping duties paid — Calculation of the export price — Single economic entity — Calculation of the dumping margin — Application of a methodology different from that used in the original investigation — Change in circumstances — Article 2(9) and Article 11(9) of Regulation (EC) No 1225/2009)

Summary — Judgment of the General Court (Second Chamber), 17 March 2015

1.      Common commercial policy — Protection against dumping — Discretion of the institutions — Judicial review — Limits

2.      Common commercial policy — Protection against dumping — Dumping margin — Determination of the export price — Recourse to a constructed export price — Conditions — Association between exporter and importer

(Council Regulation No 1225/2009, Art. 2(9))

3.      Common commercial policy — Protection against dumping — Dumping margin — Determination of the export price — Recourse to a constructed export price — Adjustments — Automatic application — Account taken of a reasonable profit margin and a reasonable margin for costs between import and resale — Discretion of the institutions — Judicial review — Limits

(Council Regulation No 1225/2009, Art. 2(9))

4.      Common commercial policy — Protection against dumping — Dumping margin — Determination of the export price — Recourse to a constructed export price — Adjustments — Reasonableness — Burden of proof

(Council Regulation No 1225/2009, Art. 2(9))

5.      Common commercial policy — Protection against dumping — Dumping margin — Determination of the export price — Recourse to a constructed export price — Adjustments — Taking account of a reasonable profit margin — Calculation on the basis of information from an independent importer

(Council Regulation No 1225/2009, Art. 2(9))

6.      Actions for annulment — Jurisdiction of the EU judicature — Scope — Prohibition on ruling ultra petita

(Art. 263 TFEU)

7.      Judicial proceedings — Introduction of new pleas during the proceedings — Plea raised for the first time at the hearing — Plea not capable of being classified as the amplification of an existing plea — Inadmissibility

(Rules of Procedure of the General Court, Art. 48(2))

8.      Common commercial policy — Protection against dumping — Dumping margin — Choice between various calculation methods — Discretion of the institutions — Judicial review — Limits

(Council Regulation No 1225/2009, Art. 2(11))

9.      Common commercial policy — Protection against dumping — Request for reimbursement of anti-dumping duties based on Article 11(8) of Regulation No 1225/2009 — Assessment by the Commission — Use of a calculation method different from that used in the original investigation — Conditions — Change in circumstances — Restrictive interpretation — Burden of proof — Obligation to apply a method in conformity with the provisions of Article 2 of Regulation No 1225/2009

(Council Regulation No 1225/2009, Art. 11(8) and (9))

10.    Common commercial policy — Protection against dumping — Request for reimbursement of anti-dumping duties based on Article 11(8) of Regulation No 1225/2009 — Assessment by the Commission — Use of a calculation method different from that used in the original investigation — Conditions — Change of circumstances justifying the change in the calculation method — Change in the structure and in the export sales channels of a group of exporting producers — Assessment

(Council Regulation No 1225/2009, Art. 11(8) and (9))

11.    Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Determination of the export price — Factor to be taken into account — Price charged in the ordinary course of trade — Price paid by the first independent buyer from an exporting producer which is a single economic entity — Concept of single economic entity — Not relevant to classification of companies belonging to the single economic entity as exporting producers

(Council Regulation No 1225/2009, Art. 2(1) and (10)(i))

12.    Common commercial policy — Protection against dumping — Request for reimbursement of anti-dumping duties based on Article 11(8) of Regulation No 1225/2009 — Assessment by the Commission — Determination of the calculation method under Article 11(9) of Regulation No 1225/2009 — No need to interpret in conformity with the 1994 GATT Anti-Dumping Agreement

(Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade, ‘1994 Anti-Dumping Code’, Art. 18.3; Council Regulation No 1225/2009, Art. 11(9))

13.    Common commercial policy — Protection against dumping — Reimbursement of anti-dumping duties — Discretion of the Commission — Effect of the guidelines adopted by the Commission

(Council Regulation No 1225/2009, Art. 11(8); Commission Notice 2002/C 127/06)

1.      See the text of the decision.

(see para. 37)

2.      Under Article 2(9) of basic anti-dumping Regulation No 1225/2009, for the purposes of calculating the dumping margin, the institutions are entitled, where the exporter and importer are associated, to construct the export price. Such an association exists, in particular, where the exporter and the importer belong to the same group of companies.

(see para. 39)

3.      For the purposes of constructing the export price on the basis of the price to the first independent buyer or on any other reasonable basis, the adjustments required by the second subparagraph of Article 2(9) of basic anti-dumping Regulation No 1225/2009 are made automatically by the institutions in order to establish a reliable export price at the EU frontier level. In that regard, the second and third subparagraphs of Article 2(9) do not preclude adjustments being made for costs incurred before importation, inasmuch as those costs are normally borne by the importer.

Moreover, the said provision does not lay down any method for calculating or determining the reasonable margin for the said costs and the profit. It merely states that the margin that is to be adjusted must be reasonable.

Finally, the institutions enjoy a wide discretion in determining a reasonable margin for those costs and the profit, and the powers of review enjoyed by the Courts of the European Union are restricted accordingly. That determination necessarily entails complex economic assessments.

(see paras 40-43)

4.      Where the dumping margin is calculated on the basis of a constructed export price, it is for the interested party who intends to dispute the extent of the adjustments made on the basis of Article 2(9) of basic anti-dumping Regulation, on the basis that the margins established in that respect are excessive, to supply specific evidence and calculations justifying those claims and, in particular, the alternative rate that it suggests where applicable. The party concerned is required, in particular, to submit figures in support of its challenge, such as specific calculations justifying its claims. In that regard, in particular, the claim that a single economic entity exists combining import and export functions does not reverse the burden of proof by requiring the institutions automatically to make the distinction between the two functions of import and export and the costs and profit relating thereto.

(see paras 44, 61-63)

5.      Where there is an association between producer and importer within the Union, the reasonable profit margin referred to in the third subparagraph of Article 2(9) of basic anti-dumping Regulation No 1225/2009 may be based not on information from the associated importer, which may be influenced by that association, but on information from an unrelated importer.

(see para. 68)

6.      See the text of the decision.

(see paras 77, 78)

7.      See the text of the decision.

(see paras 80-82)

8.      See the text of the decision.

(see para. 86)

9.      In all refund procedures within the meaning of Article 11(8) of basic anti-dumping Regulation No 1225/2009, the Commission must, in accordance with the wording of Article 11(9) of that regulation, provided that circumstances have not changed, apply the same methodology as that used in the original investigation leading to the imposition of the anti-dumping duty in question, taking account in particular of the provisions of Article 2 of that regulation.

In that regard, the exception whereby the Commission may, in the refund procedure, apply a method different from that used in the original investigation when the circumstances have changed must be interpreted strictly, since a derogation from or exception to a general rule must be interpreted narrowly. Therefore, it is for the Commission to prove that the circumstances have changed if it intends to apply a method different from that applied during the original investigation.

Moreover, in order to be warranted under Article 11(9) of the Basic Regulation, the change in method must be related to a change in circumstances which is established.

As regards the fact that such a change in circumstances constitutes an exception, the requirement that a provision be interpreted strictly cannot permit the Commission to interpret and apply the provision in a manner inconsistent with its wording and purpose. The said provision prescribes in particular that the method applied must be consistent with Article 2 of the Basic Regulation. It follows that, should it be found at the refund procedure stage that application of the method used in the original investigation was not in conformity with Article 2 of the Basic Regulation, the Commission would be required no longer to apply that method, bearing in mind that it is for the Commission to demonstrate that the method used in the original investigation was not consistent with Article 2 of the Basic Regulation. On the other hand, to warrant a change in methodology, it is not sufficient that a new method be more appropriate than the old, on the assumption none the less that the old method is consistent with Article 2 of the Basic Regulation.

(see paras 87-91)

10.    When assessing a claim for repayment of anti-dumping duties paid, the Commission is not entitled to apply a different method for calculating the dumping margin from that used in the initial investigation, unless it can demonstrate that a change in circumstances warrants a change in methodology.

In that regard, a change in the structure of a group of undertakings and in the organisation of that group’s export sales, creating a new sales channel and thus making it possible for the first time to establish individual export prices for different exporting producers within the group, justifies applying a new method consisting in calculating individual dumping margins for each of the exporting producers concerned before establishing, having regard to their membership of a group of undertakings, a weighted average dumping margin.

In those circumstances, even if the Commission omits to request the submission of individual data during the original investigation, that omission is not capable of vitiating the finding that there was a change in circumstances.

(see paras 98-102, 117)

11.    With regard to the analysis of dumping practices, the concept of a single economic entity was developed for the purpose of determining the normal value within the meaning of Article 2(1) of the Basic Regulation. Where a producer entrusts tasks normally falling within the responsibilities of an internal sales department to a company, responsible for the distribution of its products, which it controls financially, the use, for the purposes of determining the normal value, of the prices paid by the first independent buyer to that distribution company is warranted, given that those prices could be regarded as being those of the first sale of the product made in the ordinary course of trade, within the meaning of the first subparagraph of Article 2(1) of the Basic Regulation. That consideration may be applied, by analogy, to the adjustments made under Article 2(10)(i) of the Basic Regulation to the export price. In that context, if a producer exports his goods to the European Union through a legally separate undertaking, but over which it holds economic control, the requirement of a finding reflecting the economic reality of the relationship between the producer and that sales company rather militates in favour of applying the single economic entity concept when calculating the export price.

It follows that the concept of a single economic entity is based, in particular, on the need to take account of the economic reality of the relationship between the producer and its sales company, the latter performing the duties of an integrated sales department for that producer.

By contrast, the fact that two producers belong to the same group and form a single economic entity together with a legally distinct company also belonging to that group and responsible for the duties of an integrated sales service does not place an obligation on the institutions to find that only that entity may be classified as an exporting producer. Such a premiss would disregard the economic reality which is that, despite belonging, as sister companies owned by the same shareholders, to the same group, or even, assuming it is established, to a single economic entity, two producers may constitute separate legal entities which, during the refund investigation, produce and market their goods individually.

(see paras 108-112)

12.    It is apparent from recital 3 in the preamble to basic anti-dumping Regulation No 1225/2009 that the purpose of that regulation is to transpose into EU law as far as possible the rules contained in the Agreement on Implementation of Article VI of the 1994 General Agreement on Tariffs and Trade (‘the Anti-Dumping Agreement’). It follows that the provisions of the Basic Regulation must, so far as possible, be interpreted in a manner consistent with the corresponding provisions of the Anti-Dumping Agreement. However, as regards the calculation method to be applied for the purposes of assessing a claim for repayment of anti-dumping duties paid, the Anti-Dumping Agreement does not include any provisions equivalent to those of Article 11(9) of the Basic Regulation, with the result that the rule contained in that provision may not be considered a transposition of one of the detailed rules of that agreement which must be interpreted in accordance with the latter. Moreover, it follows from the wording and context of Articles 18.3 and 18.3.1 of the Anti-Dumping Agreement that, unlike Article 11(9) of the Basic Regulation, which identifies the method applicable in any refund investigation, Article 18.3.1 of the Anti-Dumping Agreement is part of the final provisions of that agreement and, more specifically, of those set out in Article 18.3 thereof, which determine its applicability in time.

(see paras 135-137, 139)

13.    See the text of the decision.

(see paras 142-144)