JUDGMENT OF THE GENERAL COURT (Fifth Chamber, Extended Composition)
5 July 2023 (*)
(Dumping – Imports of ammonium nitrate originating in Russia – Definitive anti-dumping duties – Request for an expiry review – Article 11(2) of Regulation (EU) 2016/1036 – Article 5(3) and (9) of Regulation 2016/1036 – Legal time limit – Sufficiency of the evidence – Deficiency procedure – Information submitted outside the legal time limit)
In Case T‑126/21,
AO Nevinnomysskiy Azot, established in Nevinnomyssk (Russia),
AO Novomoskovskaya Aktsionernaya Kompania NAK ‘Azot’, established in Novomoskovsk (Russia),
represented by P. Vander Schueren and T. Martin-Brieu, lawyers,
applicants,
v
European Commission, represented by G. Luengo and P. Němečková, acting as Agents,
defendant,
supported by
Fertilizers Europe, represented by B. O’Connor and M. Hommé, lawyers,
intervener,
THE GENERAL COURT (Fifth Chamber, Extended Composition),
composed, at the time of the deliberations, of D. Spielmann, President, U. Öberg (Rapporteur), R. Mastroianni, M. Brkan and I. Gâlea, Judges,
Registrar: I. Kurme, Administrator,
having regard to the written part of the procedure,
further to the hearing on 30 November 2022,
gives the following
Judgment
1 By their action under Article 263 TFEU, the applicants, AO Nevinnomysskiy Azot and AO Novomoskovskaya Aktsionernaya Kompania NAK ‘Azot’, seek the annulment of Commission Implementing Regulation (EU) 2020/2100 of 15 December 2020 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia following an expiry review pursuant to Article 11(2) of the Regulation (EU) 2016/1036 of the European Parliament and of the Council (OJ 2020 L 425, p. 21; ‘the contested regulation’).
Background to the dispute
2 The applicants are producers and exporters of ammonium nitrate established in Russia.
3 By Council Regulation (EC) No 2022/95 of 16 August 1995 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia (OJ 1995 L 198, p. 1), the Council of the European Union imposed a definitive anti-dumping duty on imports of ammonium nitrate falling within Combined Nomenclature codes 3102 30 90 and 3102 40 90 originating in Russia.
4 Following a first expiry review, provided for in Article 11(2) of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1), and a first interim review pursuant to Article 11(3) of that regulation, a definitive anti-dumping duty was maintained on imports from Russia by Council Regulation (EC) No 658/2002 of 15 April 2002 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia (OJ 2002 L 102, p. 1).
5 Following a second expiry review and a second partial interim review pursuant to Article 11(2) and (3) of Regulation No 384/96, the Council maintained the measures in force by Regulation (EC) No 661/2008 of 8 July 2008 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia following an expiry review pursuant to Article 11(2) and a partial interim review pursuant to Article 11(3) of Regulation No 384/96 (OJ 2008 L 185, p. 1).
6 Following a third expiry review, the European Commission maintained the measures in force by Implementing Regulation (EU) No 999/2014 of 23 September 2014 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia following an expiry review pursuant to Article 11(2) of Council Regulation (EC) No 1225/2009 (OJ 2014 L 280, p. 19).
7 Following an interim review pursuant to Article 11(3) of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21) (‘the basic regulation’), the Commission adopted Implementing Regulation (EU) 2018/1722 of 14 November 2018 amending Implementing Regulation No 999/2014 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia following an interim review pursuant to Article 11(3) of Regulation 2016/1036 (OJ 2018 L 287, p. 3).
8 The applicants therefore remained subject to an anti-dumping duty of between EUR 28.78 and EUR 32.71 per tonne according to the product type, applicable to the whole of Russian territory.
9 On 21 June 2019, the Commission received a request for the initiation of an expiry review of those duties, on the basis of Article 11(2) of the basic regulation (‘the original request’), lodged by the intervener, Fertilizers Europe, a European association of fertiliser manufacturers. That request was received following the publication in the Official Journal of the European Union of the notice of the impending expiry of certain anti-dumping measures (OJ 2019 C 53, p. 3), which included the duty mentioned in paragraph 8 above.
10 The original request alleged that there was evidence of continuation of dumping if the measures were allowed to expire, based on a comparison between export prices and a constructed normal value. In that regard, the intervener relied on the existence of a particular market situation in Russia as a result of a concerted price constraint agreement and the Russian Government’s strategy of setting artificially low prices for natural gas, which is the main input for ammonium nitrate.
11 Following a request from the Commission, on 20 August 2019 the intervener lodged additional information (‘the additional information’), which was incorporated into a consolidated version of the request for an expiry review (‘the consolidated request’). The additional information thus added to the consolidated request was underpinned by a normal value based on actual prices on the Russian domestic market.
12 On 23 September 2019, the Commission published a notice of initiation of an expiry review of the anti-dumping measures applicable to imports of ammonium nitrate originating in Russia (OJ 2019 C 318, p. 6; ‘the notice of initiation’), taking the view that there was sufficient evidence to initiate an expiry review and to carry out an investigation.
13 Following the investigation, the Commission concluded that there was a likelihood of recurrence of dumping and injury if the anti-dumping measures in force concerning ammonium nitrate originating in Russia were allowed to expire. It therefore decided, by adopting the contested regulation, to extend those measures for a period of five years.
Forms of order sought
14 The applicants claim that the Court should:
– annul the contested regulation;
– order the Commission to pay the costs.
15 The Commission, supported by the intervener, contends that the Court should:
– dismiss the action;
– order the applicants to pay the costs.
Law
Admissibility of additional evidence
16 Following the closure of the written part of the procedure, at the hearing on 30 November 2022, the applicants submitted additional evidence, which consists of a table provided by the information and analysis agency Chem-courier, indicating the monthly average ammonium nitrate prices of the Acron Novgorod plant for 2018 (‘Annex G.1’).
17 At the hearing, the Commission and the intervener submitted that that evidence should be rejected as inadmissible. They contended that it was submitted out of time for the purposes of Article 85(3) of the Rules of Procedure of the General Court and that the applicants had not justified the delay in submitting that new evidence.
18 The Court recalls that evidence in rebuttal and the amplification of the offers of evidence submitted in response to evidence in rebuttal from the opposite party are not covered by the time-bar laid down in Article 85(3) of the Rules of Procedure. That provision concerns offers of fresh evidence and must be read in the light of Article 92(7) of those rules, which expressly provides that evidence may be submitted in rebuttal and previous evidence may be amplified (see, to that effect, judgment of 17 December 1998, Baustahlgewebe v Commission, C‑185/95 P, EU:C:1998:608, paragraphs 71 and 72).
19 In the present case, the table of monthly average ammonium nitrate prices of the Acron Novgorod plant for 2018, set out in Annex G.1, cannot be declared inadmissible on the ground that it was produced at the hearing in breach of Article 85(3) of the Rules of Procedure.
20 That evidence is intended to respond to the Commission’s arguments in paragraphs 30 and 32 of its replies to the written questions put by the Court by way of measures of organisation of procedure on 25 July 2022.
21 By way of measures of organisation of procedure of 25 July 2022, the Court asked the Commission to state the reasons why, in the dumping margin calculations in the consolidated request, it was justifiable for the intervener to take into account different points of departure and points of arrival, and thus different adjustments of transport costs, namely the Novomoskovsk Eurochem plant for the comparison of the prices actually charged on the Russian domestic market with the prices of exports to Estonia, to the rest of the European Union and to Brazil, and the Acron Novgorod plant for the comparison of the constructed normal value with prices of exports to Estonia, to the rest of the European Union and to Brazil.
22 In its reply to the Court’s fifth written question, the Commission stated that it could not reasonably be expected that the intervener could obtain data of both costs and prices of the same plant in Russia, in which case the same point of departure could have been used in both methodologies. After stating that the Acron Novgorod plant was relatively closer to the border with Estonia than the Novomoskovsk Eurochem plant and therefore faced lower transport costs, the Commission added, inter alia, that the adjustments had been made on the basis of the evidence reasonably available to the intervener.
23 The position thus expressed by the Commission is not apparent from the notice of initiation, the contested regulation, the defence or the rejoinder, so that the applicants became aware of it only with the Commission’s replies to the written questions put by the Court by way of measures of organisation of procedure.
24 By producing Annex G.1, the applicants seek to contradict the Commission and to establish that it is incorrect to claim that the intervener could not obtain data on the costs and prices of the same plant in Russia, including for Acron Novgorod. The applicants submit that Chem-courier, considered by the Commission and the intervener to be an independent expert source, draws up such price lists for each ammonium nitrate plant and, on that basis, they produce the table of monthly average ammonium nitrate prices of the Acron Novgorod plant for 2018.
25 Accordingly, Annex G.1, submitted by the applicants at the hearing, must be regarded as evidence in rebuttal and the time-bar laid down in Article 85(3) of the Rules of Procedure does not apply, so that Annex G.1 is admissible.
Substance
26 In support of their action, the applicants rely on a single plea in law alleging, in essence, infringement of Article 11(2) and (5) and Article 5(3) of the basic regulation, in that the Commission erred in initiating the expiry review in spite of the lack of sufficient evidence to do so.
27 In the first place, according to the applicants, the Commission should have taken into account only the original request as a basis for its assessment as to whether the evidence submitted was sufficient to initiate the expiry review and not the additional information, which altered the substance of that request. It should also have examined the accuracy and adequacy of the evidence submitted by the intervener in the original request. In the second place, they claim that the original request did not contain sufficient evidence of a likelihood of a continuation of dumping if the measures were allowed to expire. In the third place, they submit that, in any event, the Commission erred in considering that the consolidated request contained sufficient evidence of such a likelihood.
28 The Court considers it appropriate to examine, first of all, the applicants’ argument concerning the sufficiency of the evidence contained in the original request in the light of the legal standards applicable to requests for an expiry review made by or on behalf of Union producers, on the basis of Article 11(2) of the basic regulation.
Preliminary observations on the Court’s review and the principles governing the interpretation of the basic regulation
29 In the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, it is settled case-law of the Court of Justice that the EU institutions enjoy a broad discretion by reason of the complexity of the economic and political situations which they have to examine, so that judicial review of that broad discretion must be limited to verifying whether the 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, paragraphs 35 and 36 and the case-law cited).
30 In that context, the review by the Court of the evidence on which the EU institutions base their findings does not constitute a new assessment of the facts replacing that of those institutions. That review does not encroach on the broad discretion of those institutions in the field of commercial policy, but is restricted to showing whether that evidence was able to support the conclusions reached by the institutions. The Court must therefore 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 judgments of 14 December 2017, EBMA v Giant (China), C‑61/16 P, EU:C:2017:968, paragraph 69 and the case-law cited, and 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).
31 On the other hand, as regards questions of law, the Court carries out a comprehensive review, which includes the interpretation to be given to legal provisions on the basis of objective factors as well as the verification of whether or not the conditions for the application of such a provision are satisfied (see, to that effect, judgments of 11 July 1985, Remia and Others v Commission, 42/84, EU:C:1985:327, paragraph 34, and of 9 November 2022, Cambodia and CRF v Commission, T‑246/19, EU:T:2022:694, paragraph 45).
32 In that regard, the primacy of international agreements concluded by the European Union over secondary EU legislation requires that the latter be interpreted, as far as possible, in a manner consistent with those agreements (see judgments of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 31 and the case-law cited, and of 12 May 2022, Commission v Hansol Paper, C‑260/20 P, EU:C:2022:370, paragraph 82 and the case-law cited).
33 According to the settled case-law of the Court of Justice, where the European Union intended to implement a particular obligation assumed in the context of the World Trade Organization (WTO), or where the EU measure refers expressly to precise provisions of the WTO agreements, it is for the EU judicature to review the legality of the EU measure in question in the light of the WTO rules (judgments of 23 November 1999, Portugal v Council, C‑149/96, EU:C:1999:574, paragraph 49; of 9 January 2003, Petrotub and Republica v Council, C‑76/00 P, EU:C:2003:4, paragraph 54; and of 27 September 2007, Ikea Wholesale, C‑351/04, EU:C:2007:547, paragraph 30), which means that account must be taken of the interpretation that the WTO Dispute Settlement Body has given to the various provisions of that agreement (see, to that effect, judgments of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraphs 32 and 33 and the case-law cited, and of 28 April 2022, Yieh United Steel v Commission, C‑79/20 P, EU:C:2022:305, paragraph 102 and the case-law cited).
34 It is thus apparent from recitals 2 and 3 of the basic regulation that the purpose of that regulation is, inter alia, to transpose into EU law, as far as possible, the rules of 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’), which include, in particular, those relating to the duration and review of anti-dumping measures, with a view to ensuring a proper and transparent application of those rules. Recital 4 of the basic regulation adds that it is essential, in order to maintain the balance of rights and obligations which the General Agreement on Tariffs and Trade (GATT) 1994 established, that the European Union take account of the interpretation of those rules by its major trading partners.
35 More specifically, by Article 11(2) of the basic regulation, the European Union intended to implement the specific obligations laid down in Article 11.3 of the Anti-Dumping Agreement (see judgment of 24 September 2008, Reliance Industries v Council and Commission, T‑45/06, EU:T:2008:398, paragraph 90 and the case-law cited).
36 Article 5 of the basic regulation constitutes, in essence, the transposition into EU law of Articles 5.1 to 5.9 and Article 6.1.3 of the Anti-Dumping Agreement and must be interpreted, as far as possible, in the light of those provisions and of their interpretation by the WTO Dispute Settlement Body (see, to that effect, judgments of 11 July 2017, Viraj Profiles v Council, T‑67/14, not published, EU:T:2017:481, paragraph 90, and of 15 December 2016, Gul Ahmed Textile Mills v Council, T‑199/04 RENV, not published, EU:T:2016:740, paragraph 90).
37 It is in the light of those principles that it must be ascertained whether the Commission initiated the review in accordance with the legal standards applicable to requests for an expiry review made by or on behalf of Union producers, on the basis of Article 11(2) of the basic regulation.
The sufficiency of the evidence contained in the original request in the light of the legal standards applicable to requests for an expiry review
38 According to the applicants, under the fourth subparagraph of Article 11(2) of the basic regulation, read in conjunction with the second subparagraph of that article, the sufficiency of the evidence to establish that the expiry of the measures would likely result in a continuation or recurrence of dumping and injury must be assessed by reference to the evidence contained in the request for a review lodged ‘no later than three months before the end of the five-year period’ after which the anti-dumping measures expire (‘the legal time limit’).
39 They submit that a consolidated version of the request for an expiry review, lodged after the legal time limit and during the three months preceding the end of the five-year period, does not constitute a valid basis, since there is no provision in the basic regulation which allows new evidence to be submitted after the legal time limit in order to make up for or remedy the absence of sufficient evidence at the time the request for a review was filed within the legal time limit.
40 The applicants maintain that the decision to initiate an expiry review could therefore not be justified by new arguments or evidence which did not exist at the time the request for a review was lodged within the legal time limit. Only explanations and clarifications that make it possible to understand or to correct evidence already submitted within that time limit, or to confirm its sufficiency, may be requested or filed during the three months preceding the end of the five-year period.
41 According to the applicants, it is necessary in that regard to distinguish between the initiation of an original investigation, governed in particular by Article 5(9) of the basic regulation, which is not subject to any time limit within which a complaint containing sufficient evidence must be lodged, and the initiation of an expiry review on the basis of Article 11(2) of that regulation, which requires a request for a review containing sufficient evidence to be lodged within the legal time limit. They submit that the application of Article 5(9) of the basic regulation to expiry review procedures is also excluded by Article 11(5) of that regulation.
42 The applicants add that, under Article 11(5) of the basic regulation, Article 5(3) of that regulation is applicable to expiry reviews, so that the Commission is under an obligation to examine the accuracy and adequacy of the evidence contained in the original request.
43 By contrast, the applicants also submit that it is apparent from WTO case-law that the Commission cannot rely on the standard required for the initiation of an original investigation in Article 5.3 of the Anti-Dumping Agreement in order to take account of additional information submitted outside the legal time limit, since that standard does not apply to an expiry review.
44 According to the applicants, such an interpretation of Article 11(2) of the basic regulation is confirmed by the decision of the European Ombudsman of 17 March 2016 closing the inquiry into complaint 577/2014/MDC on the Commission’s refusal to grant access, pursuant to Regulation No 1225/2009, to a request for review concerning the expiry of anti-dumping duties on ammonium nitrate imports from Russia (‘the Ombudsman’s decision on complaint 577/2014/MDC’).
45 In the present case, only the original request was made within the legal time limit and the only evidence set out in that request relating to a likelihood of a continuation of dumping if the measures were allowed to expire concerned the dumping margin calculations based on a constructed normal value.
46 By contrast, the additional information – submitted on 20 August 2019, that is, almost two months after the expiry of the legal time limit – contained in the consolidated request establishes a dumping margin based on actual domestic prices in Russia. The applicants argue that it therefore constitutes new evidence, governed by separate legal provisions and based on a different calculation methodology, which altered the substance of the evidence contained in the original request, so that the Commission could not take it into account.
47 The applicants submit that the absence of sufficient evidence contained in the original request is also apparent from recital 23 of the contested regulation, which states, in essence, that, without the clarifications submitted by the intervener outside the legal time limit, there would not have been sufficient evidence to warrant the initiation of the expiry review.
48 According to the applicants, the Commission therefore erred in law and made a manifest error of assessment in stating, as is apparent in particular from recital 20 of the contested regulation, that it was irrelevant whether the original request had been supplemented with estimated normal values on the basis of information available on actual domestic prices in Russia, and in deciding to initiate the expiry review ‘on the basis of the consolidated review request’, which contained new evidence submitted outside the legal time limit. It thus infringed Article 11(2) of the basic regulation by deciding to initiate that review procedure in spite of the lack of sufficient evidence of a likelihood of a continuation of dumping.
49 The Commission contends that nothing in the basic regulation confines its analysis to the information contained in the request for a review as submitted within the legal time limit. The condition relating to the sufficiency of the evidence must be satisfied only at the time the decision to initiate the expiry review is taken. Furthermore, it is not necessary for the evidence of continuation of dumping already to be definitive.
50 According to the Commission, the process established by Article 11(2) of the basic regulation is a dynamic process. Where appropriate, a consolidated version of the request for a review, lodged during the three months preceding the end of the five-year period after which the anti-dumping measures expire, can supplement or clarify the request for a review lodged within the legal time limit with additional information and clarifications provided by the Union producers on their own initiative or following exchanges with the Commission. That consolidated version cannot replace the request for a review lodged within the legal time limit or alter its substance, and cannot constitute a new lodging of the request.
51 In that regard, the Commission submits that paragraphs 3 and 9 of Article 5 of the basic regulation, which govern the initiation of the original anti-dumping investigation procedure, are, under Article 11(5) of that regulation, applicable to the initiation of expiry reviews and confirm the interpretation that it is at the time when the Commission takes the decision to initiate such reviews that it must demonstrate that there is sufficient evidence that the expiry of the measures would likely result in a continuation or recurrence of injurious dumping, and that it may gather further information to that effect.
52 By contrast, while the verification of the accuracy and adequacy of the evidence contained in a request for a review, within the meaning of Article 5(3) of the basic regulation, is a means of determining whether it is sufficient, the legal standard to be applied, when deciding whether to initiate a review investigation, relates solely to the ‘sufficiency’ of the evidence at the time of the initiation of that review, and not to its adequacy and accuracy.
53 According to the Commission, any other interpretation would limit its ability to examine the sufficiency of the evidence, which is confirmed by the Ombudsman’s decision on complaint 577/2014/MDC, cited by the applicants.
54 The Commission adds, in its written observations, that the differences between the provisions applicable to original investigations and those applicable to expiry reviews, including time limits, do not imply that, in the context of those reviews, a failure to provide sufficient evidence in the original request cannot be remedied by means of subsequent requests from the Commission.
55 The Commission submits that, in the present case, the original request was not examined in isolation, but together with the additional information submitted during the three months preceding the end of the five-year period and contained in the consolidated request.
56 It contends that the calculations of the dumping margin on the basis of actual prices on the Russian domestic market, as set out in the consolidated request, confirmed and supplemented the essential evidence relating to a comparison between the constructed normal value and the export prices in the original request, without altering the substance of the claims made in that request.
57 According to the Commission, the applicants also misread recital 23 of the contested regulation, which clearly states that the review was initiated on the basis of both the original request and the additional information and does not address the question of whether the information provided in the original request was sufficient to initiate the expiry review.
58 The Commission therefore did not err in relying, at the time when it took the decision to initiate the expiry review, on the consolidated request in order to consider that it had sufficient evidence in that regard.
59 The intervener refers, in essence, to the Commission’s arguments.
60 For the purposes of the present case, the Court will examine the applicants’ complaints relating, in the first place, to the breach of the legal standards applicable to the content of a request for an expiry review lodged within the legal time limit and, in the second place, to the sufficiency of the evidence in the original request and the nature of the additional information.
– The legal standards applicable to the content of a request for a review
61 Under Article 11(1) of the basic regulation, an anti-dumping duty is applicable only as long as, and to the extent that, it is necessary to counteract the dumping which is causing injury.
62 The first subparagraph of Article 11(2) of the basic regulation provides that ‘a definitive anti-dumping measure shall expire five years from its imposition or five years from the date of the conclusion of the most recent review which has covered both dumping and injury, unless it is determined in a review that the expiry would be likely to lead to a continuation or recurrence of dumping and injury. Such an expiry review shall be initiated on the initiative of the Commission, or upon a request made by or on behalf of Union producers, and the measure shall remain in force pending the outcome of that review’.
63 The second subparagraph of Article 11(2) of the basic regulation states, inter alia, that ‘an expiry review shall be initiated where the request contains sufficient evidence that the expiry of the measures would likely result in a continuation or recurrence of dumping and injury’. Under the fourth subparagraph of that article, ‘Union producers shall, no later than three months before the end of the five-year period, be entitled to lodge a review request in accordance with the second subparagraph’.
64 As is apparent from the case-law cited in paragraph 31 above, the Court carries out a comprehensive review in terms of the interpretation to be given to the provisions contained in the second and fourth subparagraphs of Article 11(2) of the basic regulation as well as the verification of whether the conditions for their application are satisfied.
65 In the first place, it follows from a literal reading of Article 11(2) of the basic regulation that a request for a review which must be made by or on behalf of Union producers, no later than three months before the end of the five-year period after which the anti-dumping measures expire, must already contain sufficient evidence that the expiry of the measures would likely result in a continuation or recurrence of dumping and injury.
66 The fourth subparagraph of Article 11(2) of the basic regulation, which lays down the legal time limit within which the request for a review must be made by or on behalf of Union producers, expressly refers to the second subparagraph, which sets out the conditions relating to the content of that request under which a review may be carried out.
67 Since it is apparent from the wording of the fourth subparagraph of Article 11(2) of the basic regulation that a request for a review, made by or on behalf of the Union producers no later than three months before the end of the five-year period, must be in accordance with the second subparagraph, the request must therefore, by that date, contain sufficient evidence that the expiry of the measures would likely result in a continuation or recurrence of dumping and injury in order to justify the initiation of the review.
68 Such an interpretation of the second and fourth subparagraphs of Article 11(2) of the basic regulation was, as the applicants rightly submit, also adopted by the Ombudsman in her decision on complaint 577/2014/MDC, which concerned the right of an interested party to have access to the original version of a request for a review lodged within the legal time limit. In that decision, the Ombudsman correctly observed that the two cumulative conditions for the initiation of an expiry review were that the request must be lodged within the legal time limit and must contain sufficient evidence that the expiry of the measures would likely result in a continuation or recurrence of dumping and injury. Access to the version of a request for a review lodged within the legal time limit thus enables interested parties to ascertain whether, at that stage of the procedure, the conditions laid down in that article were satisfied.
69 The objective of the second and fourth subparagraphs of Article 11(2) of the basic regulation to ensure that the evidence submitted to the Commission within the legal time limit is sufficient to establish a likelihood of a continuation or recurrence of dumping and injury if the measures were allowed to expire cannot be achieved if those provisions are interpreted as meaning that Union producers have a further three months, following the expiry of the legal time limit, to satisfy that condition.
70 The introduction of the three-month period preceding the end of the five-year period after which the anti-dumping measures expire thus contributes to ensuring legal certainty, by enabling market operators to know, in good time, whether the anti-dumping measures are likely to be maintained, as the Commission confirmed at the hearing, and enabling the Commission to have an appropriate period of time to assess the evidence contained in a request for a review made within the legal time limit by or on behalf of Union producers and to ensure that the evidence is sufficient and relevant, so as to avoid an anti-dumping measure being unduly maintained beyond the prescribed period.
71 In the second place, as the parties agree, after the legal time limit and within the three-month period preceding the end of the five-year period, Union producers may submit additional information on the basis of Article 11(2) of the basic regulation. It must also be considered, as acknowledged by the parties, that such evidence cannot constitute new arguments, nor can it replace the request for a review lodged within the legal time limit or remedy the insufficiency of the evidence contained therein. Although, in the rejoinder, the Commission submitted that the differences between the provisions applicable to original investigations and those applicable to expiry reviews do not imply that, in the context of those reviews, a failure to provide sufficient evidence in the original request could not be remedied by means of subsequent requests from the Commission, it nevertheless withdrew that submission at the hearing.
72 As is apparent from paragraph 70 above, the three-month period preceding the expiry of the anti-dumping measures enables the Commission to assess the evidence contained in the request for a review, as lodged within the legal time limit, and to ascertain whether the evidence is sufficient and relevant, before deciding whether or not to initiate the review. To that end, the Commission is allowed to receive or request additional clarifications during the three months preceding the end of the five-year period, resulting in a consolidated version of the request.
73 While the Commission may take into account the additional information thus submitted by a Union producer in order to justify the initiation of a review following a request for a review made by or on behalf of Union producers, that information can only supplement or corroborate the sufficient evidence submitted within the legal time limit. It cannot, however, constitute new arguments or evidence, nor can it remedy the insufficiency of the evidence contained in that request, which must be assessed in relation to the evidence submitted within the legal time limit.
74 Thus, as the Commission acknowledged at the hearing, the lack of sufficient evidence submitted by the Union producers within the legal time limit cannot be rectified by the Commission on its own initiative by way of a deficiency procedure involving those producers during the three-month period preceding the end of the five-year period.
75 What is decisive is therefore not only the information used by the Commission when initiating a review investigation on the basis of a request made by or on behalf of Union producers, but also the time at which the Commission received that information and the extent to which the information received within the legal time limit constitutes sufficient evidence that the expiry of the measures would likely result in a continuation or recurrence of dumping and injury.
76 Accordingly, the Commission erred in considering that the three months directly preceding the end of the five-year period were included in the period within which a request for a review containing sufficient evidence could be lodged and that the condition relating to the sufficiency of the evidence had to be satisfied only at the time the decision to initiate the expiry review was taken.
77 Such an interpretation would make Article 11(2) of the basic regulation meaningless by rendering nugatory the legal obligation laid down therein and would run counter to the purpose of the review procedure, which is to ensure that the request made by or on behalf of Union producers no later than three months before the end of the five-year period meets the standard of proof required, laid down in the second subparagraph of that provision, pursuant to which the request must contain sufficient evidence of the likelihood of a continuation or recurrence of dumping and injury if the measures were allowed to expire.
78 The Commission’s reference to Article 11(5) of the basic regulation is not such as to call that conclusion into question.
79 The first subparagraph of Article 11(5) of the basic regulation provides that ‘the relevant provisions of this Regulation with regard to procedures and the conduct of investigations, excluding those relating to time limits, shall apply to any review’ carried out pursuant, inter alia, to paragraph 2 of that article.
80 While that article does not explicitly refer to the relevant provisions referred to in the present case, it has previously been held that Article 11(5) of the basic regulation does not extend to review procedures all the provisions with regard to the procedures and conduct of investigations that apply in the context of the original investigation. Article 11(5) of that regulation sets a framework for applying those provisions to review procedures according to their relevant characteristics (judgment of 11 September 2018, Foshan Lihua Ceramic v Commission, T‑654/16, EU:T:2018:525, paragraph 37).
81 Thus, the review procedure differs from the original investigation procedure, which is governed by other provisions of the basic regulation. That is why the Court of Justice has previously held that some of the provisions governing the original investigation are not intended to apply to the review procedure, in the light of the general scheme and purposes of the system laid down by the basic regulation (see, to that effect, judgment of 11 February 2010, Hoesch Metals and Alloys, C‑373/08, EU:C:2010:68, paragraph 77).
82 On the one hand, the Court recalls that Article 5(9) of the basic regulation provides that, ‘where it is apparent that there is sufficient evidence to justify initiating proceedings, the Commission shall do so within 45 days of the date on which the complaint was lodged and shall publish a notice in the Official Journal of the European Union. Where insufficient evidence has been presented, the complainant shall be so informed within 45 days of the date on which the complaint is lodged with the Commission. The Commission shall provide information to the Member States concerning its analysis of the complaint normally within 21 days of the date on which the complaint is lodged with the Commission’.
83 The expression ‘where it is apparent that there is sufficient evidence to justify initiating proceedings’ at the beginning of Article 5(9) of the basic regulation cannot be read independently of the rest of that provision, the wording of which clearly shows that its purpose is to specify the time limits, from the date on which a complaint is lodged, within which the Commission must initiate the original investigation procedure, inform the complainant that no investigation will take place, or provide information to the Member States concerning its analysis of the complaint.
84 It is clear from the wording of the first subparagraph of Article 11(5) of the basic regulation that the other provisions of that regulation relating to time limits are not applicable to expiry reviews.
85 Therefore, since Article 5(9) of the basic regulation is a provision relating to the time limits for original anti-dumping investigations, it cannot, as the applicants rightly submit, apply to expiry review procedures, in accordance with Article 11(5) of that regulation.
86 On the other hand, under Article 5(3) of the basic regulation, ‘the Commission shall, as far as possible, examine the accuracy and adequacy of the evidence provided in the complaint, to determine whether there is sufficient evidence to justify the initiation of an investigation’.
87 In that regard, the Court notes that Article 5(3) of the basic regulation refers only to the examination, by the Commission, of the accuracy and adequacy of the evidence contained in a complaint in order to determine whether there is sufficient evidence to justify the initiation of an original investigation, and cannot justify the initiation of a deficiency procedure on the Commission’s own initiative where the evidence submitted within the legal time limit for requests for an expiry review made by or on behalf of Union producers is not sufficient to establish that the expiry of the measures would likely result in a continuation or recurrence of dumping and injury.
88 Admittedly, as the Commission rightly points out, the Court of Justice has had occasion to state that the existence of sufficient evidence of dumping and the injury resulting therefrom is always a prerequisite for the opening of an investigation, whether at the initiation of an anti-dumping proceeding or in the course of a review of a regulation imposing anti-dumping duties (judgment of 7 December 1993, Rima Eletrometalurgia v Council, C‑216/91, EU:C:1993:912, paragraph 16).
89 However, that case-law was developed on the basis of Council Regulation (EEC) No 2423/88 of 11 July 1988 on protection against dumped or subsidised imports from countries not members of the European Economic Community (OJ 1988 L 209, p. 1), in which the provision relating to the initiation of a review expressly referred to the article concerning the initiation of an original investigation.
90 Article 14(2) of Regulation No 2423/88, which is wholly concerned with the review procedure, referred, for the rules governing the investigation, to Article 7 of that regulation, which applied to the original proceeding. As a result of that express reference, the Community legislature made it clear that the same rules were to be followed in regard to the ‘original’ and ‘review’ investigations (Opinion of Advocate General Léger in Commission v NTN and Koyo Seiko, C‑245/95 P, EU:C:1997:400, point 81).
91 Regulation No 2423/88 was replaced by Council Regulation (EC) No 3283/94 of 22 December 1994 on protection against dumped imports from countries not members of the European Community (OJ 1994 L 349, p. 1), in which the wording of the provisions at issue was changed, and then maintained as it stood until the current version of Articles 5 and 11 of the basic regulation, which no longer contain such an express reference.
92 Nothing in Article 5(3) of the basic regulation indicates that the evidentiary standards laid down therein apply to proceedings other than the initiation of original anti-dumping investigations, or that the standards set out therein may also be applicable to expiry review investigations following a request for a review made by or on behalf of Union producers.
93 The Commission also misinterprets the reports of the WTO bodies which interpret Article 5.3 of the Anti-Dumping Agreement, the wording of which coincides with that of Article 5(3) of the basic regulation, when it argues that it follows therefrom that the sufficiency of the evidence must be assessed at the time when the Commission takes a decision on whether it is appropriate to initiate an expiry review investigation and that it may take into account additional information submitted outside the legal time limit for that purpose.
94 The analysis carried out in the Panel Report entitled ‘Pakistan – Anti-Dumping Measures on Biaxially Oriented Polypropylene Film from the United Arab Emirates’, adopted on 18 January 2021 (WT/DS 538/R, paragraph 7.30), concerned the interpretation to be given to Article 5.3 of the Anti-Dumping Agreement regarding the initiation of an original anti-dumping investigation on the basis of a complaint. For its part, the analysis carried out in the Panel Report entitled ‘US – Corrosion-Resistant Steel Sunset Review’, adopted on 14 August 2003 (WT/DS 244/R, paragraphs 7.27 to 7.39 and 7.45), concerned the evidentiary standards set out in Articles 5.6 and 11.2 of the Anti-Dumping Agreement, regarding, respectively, the initiation of an original anti-dumping investigation on the initiative of the authorities without having received a written application to that end by or on behalf of a domestic industry, and the review of anti-dumping measures on the initiative of the authorities or upon request by any interested party. Those issues are not the subject of the present dispute and the arguments made by the Commission and the intervener in that regard are therefore ineffective.
95 In addition, in the Panel Report entitled ‘EU – Cost Adjustment Methodologies II (Russia)’, adopted on 24 July 2020 (WT/DS 494/R, paragraphs 7.332 and 7.333), it was expressly stated that the absence of any cross-reference in Article 11.3 of the Anti-Dumping Agreement to Article 5.3 of that agreement must be understood to imply that the standard for the initiation of an expiry review is different from the standard required for the initiation of an original investigation, and that the standard in Article 5.3 of that agreement does not apply to an expiry review.
96 It is true that, with regard to Panel Report WT/DS 494/R, the Commission stated that it had lodged an appeal on 28 August 2020, followed by the Russian Federation, which lodged an appeal on 2 September 2020. Since the Appellate Body is currently unable to examine those appeals given its ongoing vacancies, the Commission argued at the hearing that that report has no value as a precedent and that that dispute cannot be legally resolved in the near future.
97 In that regard, at the hearing, the intervener submitted that it was not desirable for the EU judicature to transpose, as such, an extract from a decision of a WTO body and impose it as an interpretation of EU law, in particular where the provisions had a different wording and purpose.
98 Nevertheless, in the absence of an interpretation of the provisions of the Anti-Dumping Agreement by the Appellate Body, which the EU judicature could, where appropriate, draw upon to interpret provisions the wording of which coincides in EU law, the authority of a Panel decision subject to an appeal ‘into the void’ before the Appellate Body can, in any event, be based only on the probative value of the reasoning underlying the interpretation of those provisions by the WTO dispute settlement bodies.
99 Contrary to the Commission’s submissions, it is not possible to embark on a ‘dynamic process’ consisting of requesting new clarifications from Union producers in order to meet the requirement for ‘sufficient’ evidence at the time of initiating the expiry review.
100 The provisions of EU law corresponding to the relevant provisions of the Anti-Dumping Agreement, namely paragraphs 3 and 9 of Article 5 of the basic regulation, are not applicable to expiry reviews following a request for a review made by or on behalf of Union producers, on the basis of Article 11(2) of that regulation. The general scheme and purposes of the system established by that regulation preclude the Commission from relying on Article 11(5) of that regulation in order to dispense with the obligation to ensure that the request for a review lodged within the legal time limit contains sufficient evidence that the expiry of the measures would likely result in a continuation or recurrence of dumping and injury.
101 The Court finds that the objective difference between a review proceeding and an original investigation proceeding lies in the fact that imports subject to a review proceeding are those on which definitive anti-dumping duties have already been imposed and in respect of which sufficient evidence has generally been adduced to establish that the expiry of those measures would likely result in a continuation or recurrence of dumping and injury. On the other hand, where imports are subject to an original investigation, the purpose of that investigation is precisely to determine the existence, degree and effect of any alleged dumping (judgments of 27 January 2005, Europe Chemi-Con (Deutschland) v Council, C‑422/02 P, EU:C:2005:56, paragraph 50, and of 28 April 2015, CHEMK and KF v Council, T‑169/12, EU:T:2015:231, paragraph 60).
102 Thus, in an expiry review investigation following a request for a review made by or on behalf of Union producers, if the evidence submitted within the legal time limit is insufficient to establish a likelihood that the expiry of the measures would result in a continuation or recurrence of dumping and injury, the existing anti-dumping measure automatically expires. By contrast, if such evidence is sufficient and the Commission initiates that review, the anti-dumping duties are automatically maintained during the investigation period.
103 It follows from the foregoing that the condition relating to the sufficiency of the evidence contained in a request for a review made by or on behalf of Union producers, within the meaning of the second subparagraph of Article 11(2) of the basic regulation, is satisfied where such evidence is submitted no later than three months before the end of the five-year period, in accordance with the fourth subparagraph of that provision.
104 Therefore, the Commission erred in law when it stated, in recital 20 of the contested regulation, that it was irrelevant whether the original request had been supplemented with additional information and that the initiation of the review could be warranted on the basis of the consolidated request.
– The sufficiency of the evidence in the original request and the nature of the additional information
105 It follows from the above analysis that, in the present case, the Commission was required to establish that the evidence contained in the original request, made on 21 June 2019, was sufficient. It had three months, that is to say, until 25 September 2019, the date on which the anti-dumping measures were to expire, to do so. As regards the additional information submitted by the intervener on 20 August 2019, outside the legal time limit, the Commission could take it into account only in so far as it supplemented or corroborated the sufficient evidence included in the original request and did not constitute new evidence or arguments.
106 In that regard, it is not disputed that the evidence contained in the original request, which served as the basis for the claims that dumping would continue if the measures were allowed to expire, was based on a constructed normal value, the intervener having relied on the existence of a particular market situation in Russia as a result of a concerted price constraint agreement and the Russian Government’s strategy of setting artificially low prices for natural gas, which is the main input for ammonium nitrate.
107 It is also not disputed that the evidence in the additional information, contained in the consolidated request, related to a normal value determined on the basis of actual domestic prices on the Russian market.
108 The Court notes that there are substantial differences between the evidence set out in the original request for the calculation of the dumping margins and the evidence set out in the additional information.
109 As regards the original request, the intervener used the constructed normal value. It claimed that there was a particular market situation in Russia on account of the regulated prices on the Russian domestic market, so that there were no reliable data on domestic prices for Russia in the ordinary course of trade. In support of that claim, it produced a list of declared maximum prices for mineral fertilisers for the use of agricultural producers, published on 18 April 2017, which covered a period of four months in 2017.
110 The intervener then constructed the normal value on the basis of the costs of production of ammonium nitrate in Russia and estimated its actual cost, before the adjustment of the gas price, at 104.88 United States dollars (USD) per tonne, or 6 387.19 Russian roubles (RUB) per tonne. On account of artificially low gas prices in Russia, it took into account the gas prices for delivery to Waidhaus, in Germany. Those costs were further adjusted to take into account transport costs amounting to EUR 6 per tonne and selling, general and administrative costs, as well as an average profit margin of 8% and a US profit margin of 29%. After adjustments for gas costs, selling, general and administrative costs and profit margins, the constructed normal value taken into account for Estonia and the rest of the European Union was EUR 191 per tonne, applying the profit margin of 8%, and EUR 247 per tonne, applying the profit margin of 29%.
111 Dumping margins were calculated by comparing constructed normal values with export prices to Estonia, to the rest of the European Union and to Brazil, taking into account average export prices of EUR 139 per tonne for Estonia, EUR 152 per tonne for the rest of the European Union and EUR 142 or EUR 143 per tonne for Brazil. For the European Union with the exception of Estonia, the intervener arrived at a dumping margin of EUR 39 per tonne, applying the profit margin of 8%, and EUR 95 per tonne, applying the profit margin of 29%. For Estonia, the result was EUR 52 per tonne and EUR 108 per tonne, respectively.
112 By contrast, in the additional information, the intervener relied on a normal value based on the actual prices charged on the Russian domestic market. It took into account a list of commercial prices for the 2018 calendar year and the yearly average of the commercial prices from the independent expert source Chem-courier. It used a domestic Russian ammonium nitrate price of EUR 142 per tonne, or RUB 10 501 per tonne, which was adjusted for transport costs amounting to EUR 25 per tonne.
113 The dumping margin was then calculated by comparing the actual prices on the Russian domestic market with export prices to the European Union, taking into account the average export price of EUR 133 per tonne. The intervener arrived at a dumping margin of EUR 9 per tonne.
114 The evidence contained in the additional information is therefore based on a different calculation method for determining the dumping margin and relies on different data from those contained in the original request.
115 That evidence also has a separate legal basis and relates to different circumstances.
116 In that regard, it is settled case-law that the determination of the normal value of a product constitutes one of the essential steps required to prove the existence of dumping (judgment of 1 October 2014, Council v Alumina, C‑393/13 P, EU:C:2014:2245, paragraph 20; see also judgment of 12 May 2022, Commission v Hansol Paper, C‑260/20 P, EU:C:2022:370, paragraph 76 and the case-law cited).
117 In order to determine that normal value, the first subparagraph of Article 2(1) of the basic regulation sets out the main method and provides that it is normally to be based on the prices paid or payable, in the ordinary course of trade, by independent customers in the exporting country. The second subparagraph of that provision specifies that, where the exporter in the exporting country does not produce or does not sell the like product, the normal value may be established on the basis of prices of other sellers or producers (judgment of 12 May 2022, Commission v Hansol Paper, C‑260/20 P, EU:C:2022:370, paragraph 77; see also judgment of 14 July 2021, Interpipe Niko Tube and Interpipe Nizhnedneprovsky Tube Rolling Plant v Commission, T‑716/19, EU:T:2021:457, paragraph 56 and the case-law cited).
118 That general principle applies as a matter of priority in the determination of the normal value. The Court of Justice has previously held that it is apparent from both the wording and the scheme of the first subparagraph of Article 2(1) of the basic regulation that, in the determination of the normal value, it is the price actually paid or payable in the ordinary course of trade which must, as a matter of priority, be taken into consideration in principle to establish the normal value (see judgment of 12 May 2022, Commission v Hansol Paper, C‑260/20 P, EU:C:2022:370, paragraph 79 and the case-law cited).
119 Under the first subparagraph of Article 2(3) of the basic regulation, it is possible to derogate from the application of the general principle set out in Article 2(1) of that regulation only when there are no or insufficient sales of the like product in the ordinary course of trade or where, because of the particular market situation, such sales do not permit a proper comparison, by calculating the normal value either on the basis of the cost of production in the country of origin plus a reasonable amount for costs and for profits, namely a constructed normal value, or on the basis of representative export prices. Those derogations from the method of establishing the normal value on the basis of actual prices are exhaustive in nature (see judgment of 1 October 2014, Council v Alumina, C‑393/13 P, EU:C:2014:2245, paragraphs 20 and 21 and the case-law cited; see also, to that effect, judgment of 12 May 2022, Commission v Hansol Paper, C‑260/20 P, EU:C:2022:370, paragraph 80 and the case-law cited).
120 The first and second subparagraphs of Article 2(1) of the basic regulation, together with the first subparagraph of Article 2(3) thereof, thus establish a hierarchy between the methods for determining the normal value set out in those provisions. It follows that there is no overlap between the situations covered by each of those methods (judgment of 12 May 2022, Commission v Hansol Paper, C‑260/20 P, EU:C:2022:370, paragraph 81).
121 In the present case, the evidence in the original request, relating to a constructed normal value, is based on Article 2(3) of the basic regulation, which specifies the criteria for disregarding the method for establishing the normal value and the alternative methods for calculating that value. Those derogations from the method of establishing the normal value on the basis of actual prices are exhaustive in nature. They also relate to a particular situation, since the intervener took the view that the dumping margin calculations could not be based on the commercial prices actually charged in Russia.
122 By contrast, the evidence contained in the additional information is based on the normal value which complies with the principle laid down in Article 2(1) of the basic regulation.
123 Since the concepts of normal value and constructed normal value are governed by different legal provisions and are based on a separate commercial methodology, it cannot be argued that the use of another method of calculating the normal value in the additional information, which is substantially different from that set out in the original request and is based on a separate legal provision and principle, may be classified as information intended to supplement or corroborate the evidence contained in the original request.
124 Furthermore, contrary to what the Commission contended at the hearing, the list of actual prices on the Russian domestic market provided in the additional information cannot be regarded as being intended to supplement the prices mentioned in the original request. The original request did not contain a list of prices actually charged on the Russian domestic market for the first four months of 2017, but a list of maximum declared prices for mineral fertilisers for the use of agricultural producers in Russia, as published on 18 April 2017. Moreover, that list of maximum prices was not intended to establish a normal value based on actual prices, but served as a basis for the intervener’s claims concerning a particular market situation on account of the Russian Government’s strategy of setting artificially low prices.
125 Accordingly, the inclusion in the consolidated request of the dumping margin calculations based on the alleged Russian domestic prices does not consist of a mere clarification of the evidence contained in the original request, based on the constructed normal value. Rather, it is new evidence which substantially altered the determination of the dumping margins as established in the original request and altered the substance of the original request. Since that evidence was filed after the expiry of the legal time limit, the Commission could not rely on it in deciding to initiate the expiry review following the request for a review made by the intervener.
126 The Commission therefore erred in law and made a manifest error of assessment of the facts in considering, as is apparent from recitals 20, 23, 25, 26 and 29 of the contested regulation, that it could rely on the consolidated request, including the evidence contained in the additional information, to establish that the evidence was sufficient for the purposes of justifying the initiation of the expiry review.
127 At the hearing, the Commission submitted for the first time that it is apparent from Sections 1 and 4.1 of the notice of initiation and from recital 23 of the contested regulation that the original request alone contained sufficient evidence that the expiry of the measures would likely result in a continuation of dumping. It added that it could have initiated the expiry review solely on the basis of the original request.
128 Nevertheless, it is in no way apparent from the notice of initiation or the contested regulation that the Commission considered that the original request contained sufficient evidence that the expiry of the measures would likely result in a continuation of dumping.
129 Recital 23 of the contested regulation expressly states that the expiry review was initiated on the basis of the consolidated request and states that the Commission considered that the original request ‘contained sufficient evidence that, subject to the clarifications provided by [the intervener] following the deficiency process’, warranted the initiation of the expiry review.
130 The wording of recital 23 of the contested regulation in language versions other than the English version, such as the French version, which uses the expression ‘sous réserve des éclaircissements fournis par les requérants à l’issue de la procédure de complément d’information’, or the German version, which indicates ‘nach Anforderung noch fehlender Informationen’, confirms that the additional information was requested by the Commission in order to remedy the missing or deficient information in the original request.
131 In addition, recital 25 of the contested regulation states that ‘there is no ambiguity as to the fact that the expiry review was initiated on the basis of [the consolidated] request’ and that ‘this can be confirmed by the reading of section 4.1 of the Notice of Initiation, which clearly referred to evidence stemming from the consolidated review request’. Similarly, in recital 29 of that regulation, it is reiterated that ‘initiation in this expiry review is not solely based on information as received in the original review request of 21 June 2019, but also on further evidence supplemented by the [intervener] prior to the initiation and included in the consolidated review request’.
132 Moreover, in the defence and the rejoinder, the Commission consistently argued that it had concluded that there was sufficient evidence of the likelihood of dumping and injury on the basis of the consolidated request, and that the original request, as such, had not been examined in isolation, but in conjunction with any other evidence available to the Commission, including the additional clarifications provided by the intervener, so that ‘the Contested Regulation [did] not enter into whether the information provided in the Original Request was sufficient to initiate the expiry review’.
133 At the hearing, the Commission confirmed that it had in fact initiated the review on the basis of the consolidated request. It added that, in other investigations, the review had been initiated on the basis of a request made within the legal time limit and a constructed normal value.
134 Section 1 of the notice of initiation also mentions both the original request and the consolidated request, the Commission having stated that the latter was referred to therein as an ‘open version of the request’. As regards Section 4.1 of the notice of initiation, it states that the intervener provided ‘sufficient evidence of the absence of reliable data on domestic prices for Russia … in the ordinary course of trade’, and that the intervener therefore constructed the normal value. The sufficiency of the evidence referred to thus relates to the justification for the use of a constructed normal value in the original request, but does not in any way mean that that request contained sufficient evidence that the expiry of the measures would likely result in a continuation of dumping, within the meaning of Article 11(2) of the basic regulation.
135 It therefore follows explicitly from those considerations that the contested regulation cannot be read as establishing that the original request contained sufficient evidence that the expiry of the measures would likely result in a continuation of dumping. By contrast, it is apparent from the contested regulation that, without the clarifications contained in the additional information, lodged by the intervener on 20 August 2019, the Commission would not necessarily have initiated the expiry review.
136 The Court therefore considers that the request made by the Commission to the intervener for the purposes of obtaining the actual prices on the Russian domestic market for the whole of 2018 cannot be understood as being intended to supplement the evidence set out in the original request, since that evidence was based solely on calculations of dumping margins established with the constructed normal value, but was intended to remedy a lack of information.
137 As is apparent from the analyses carried out above, it is not for the Commission to ask Union producers who have submitted a request for an expiry review within the legal time limit to remedy any insufficiency of the evidence contained therein.
138 The Commission has the three-month period preceding the expiry of the measures to ensure that that evidence is sufficient and may obtain additional information in that regard. It is not, however, able to make up for or remedy the absence of sufficient evidence in the request lodged within the legal time limit, or to replace the missing or otherwise deficient aspects of that request with new information.
139 In any event, it is not for the Court to substitute its own assessment of whether the evidence contained in the original request is sufficient for the Commission’s assessment as set out in the notice of initiation and the contested regulation.
140 According to the case-law, the Court cannot substitute other grounds relied on for the first time before it for the grounds relied on during the investigation procedure and in the contested regulation (see, to that effect, judgments of 3 September 2015, Inuit Tapiriit Kanatami and Others v Commission, C‑398/13 P, EU:C:2015:535, paragraph 22 and the case-law cited, and of 1 June 2017, Changmao Biochemical Engineering v Council, T‑442/12, EU:T:2017:372, paragraph 153 and the case-law cited). The Commission’s assessments to the effect that the original request contained sufficient evidence of a likelihood of a continuation of dumping if the measures were allowed to expire, so that it could have decided to initiate the expiry review on that basis alone, constitute such grounds relied on for the first time before the Court.
141 Accordingly, the applicants’ complaints alleging infringement of Article 11(2) of the basic regulation must be upheld.
142 It follows from all of the foregoing that the contested regulation must be annulled, without it being necessary to examine the other complaints put forward by the applicants.
Costs
143 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. Since the Commission has been unsuccessful, it must be ordered to bear its own costs and to pay those of the applicants, in accordance with the form of order sought by the applicants.
144 In accordance with Article 138(3) of the Rules of Procedure, the intervener must bear its own costs.
On those grounds,
THE GENERAL COURT (Fifth Chamber, Extended Composition)
hereby:
1. Annuls Commission Implementing Regulation (EU) 2020/2100 of 15 December 2020 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia following an expiry review pursuant to Article 11(2) of the Regulation (EU) 2016/1036 of the European Parliament and of the Council;
2. Orders the European Commission to bear its own costs and to pay the costs incurred by AO Nevinnomysskiy Azot and AO Novomoskovskaya Aktsionernaya Kompania NAK ‘Azot’;
3. Orders Fertilizers Europe to bear its own costs.
Spielmann | Öberg | Mastroianni |
Delivered in open court in Luxembourg on 5 July 2023.
V. Di Bucci | | S. Papasavvas |