JUDGMENT OF THE GENERAL COURT (First Chamber, Extended Composition)

1 March 2023(*) (1)

(Subsidies – Imports of certain woven or stitched glass fibre fabrics originating in China and Egypt – Implementing Regulation (EU) 2020/776 – Definitive countervailing duty – Calculation of the subsidy amount – Attributability of the subsidy – Rights of the defence – Manifest error of assessment – Import duty drawback scheme – Tax treatment of foreign exchange losses – Calculation of the undercutting margin)

In Case T‑480/20,

Hengshi Egypt Fiberglass Fabrics SAE, established in Ain Sokhna (Egypt),

Jushi Egypt for Fiberglass Industry SAE, established in Ain Sokhna,

represented by B. Servais and V. Crochet, lawyers,

applicants,

v

European Commission, represented by P. Kienapfel, G. Luengo and P. Němečková, acting as Agents,

defendant,

supported by

Tech-Fab Europe eV, established in Frankfurt am Main (Germany), represented by L. Ruessmann and J. Beck, lawyers,

intervener,

THE GENERAL COURT (First Chamber, Extended Composition),

composed, at the time of the deliberations, of H. Kanninen, President, M. Jaeger, N. Półtorak, O. Porchia and M. Stancu (Rapporteur), Judges,

Registrar: M. Zwozdziak-Carbonne, Administrator,

having regard to the written part of the procedure,

further to the hearing on 22 March 2022,

gives the following

Judgment

1        By their action based on Article 263 TFEU, the applicants, Hengshi Egypt Fiberglass Fabrics SAE (‘Hengshi’) and Jushi Egypt for Fiberglass Industry SAE (‘Jushi’), seek the annulment of Commission Implementing Regulation (EU) 2020/776 of 12 June 2020 imposing definitive countervailing duties on imports of certain woven and/or stitched glass fibre fabrics originating in the People’s Republic of China and Egypt and amending Commission Implementing Regulation (EU) 2020/492 imposing definitive anti-dumping duties on imports of certain woven and/or stitched glass fibre fabrics originating in the People’s Republic of China and Egypt (OJ 2020 L 189, p. 1) (‘the contested implementing regulation’), in so far as it concerns them.

I.      Background to the dispute

2        The applicants are two companies formed in accordance with the laws of the Arab Republic of Egypt whose shareholders are Chinese entities. They both belong to the China National Building Material Group (CNBM) (‘the CNBM group’). The applicants’ business consists in the production and export of certain woven or stitched glass fibre fabrics (‘GFF’) and glass fibre rovings (‘GFR’). GFR constitutes the main raw material used to produce GFF. Those products are sold in particular within the European Union.

A.      The China-Egypt Suez Economic and Trade Cooperation Zone

3        The applicants are both established in the China-Egypt Suez Economic and Trade Cooperation Zone (‘the SETC-Zone’). The SETC-Zone was set up together by the Arab Republic of Egypt and the People’s Republic of China. Its history goes back to the 1990s. In 1997, the Prime Ministers of China and Egypt signed a memorandum of understanding, in which the two countries agreed to ‘cooperate in developing the free economic zone in the north of the Gulf of Suez’.

4        In 2002, a wider geographical area of 20 km², which included the SETC-Zone, was classified as a special economic zone by the Government of Egypt, thereby making Egyptian Law No 83/2002 on Economic Zones of a Special Nature (‘Law No 83/2002’) applicable to the SETC-Zone.

5        Next, Chinese and Egyptian public entities set up Egypt TEDA Investment Co. (‘Egypt TEDA’), 80% of whose shares are held by the Government of China and the remaining 20% by the Government of Egypt.

6        In 2012, during a visit by the Egyptian President to China, that president described the SETC-Zone as a key project for bilateral cooperation between the two countries. He also hoped that more and more Chinese undertakings would invest in the SETC-Zone and thus participate in Egypt’s Recovery program.

7        In 2013, the SETC-Zone was extended by 6 km² under a contract between Egypt TEDA and the Egyptian authorities. Also as of 2013, the SETC-Zone was developed under the umbrella of the Chinese ‘Belt and Road’ initiative. That initiative, according to the Guiding Opinions of the Chinese State Council on the Promotion of International Production Capacity and Equipment Manufacturing Cooperation of 13 May 2015, includes the possibility for undertakings ‘going abroad’ to benefit from fiscal and tax support policies, concessional loans, financial support through syndicated loans, export credits, and project financing, equity investment and export credit insurance.

8        In 2015, the special economic zone referred to in paragraph 4 above, of which the SETC-Zone formed part, was officially incorporated into the wider Suez Canal Economic Zone (‘the SCZone’), comprising the area around the Suez Canal. The SCZone was governed by Law No 83/2002, in the context of the ‘Suez Canal Corridor Development Plan’ launched by Egypt.

9        In 2016, the Chinese and Egyptian Presidents officially inaugurated the SETC-Zone 6 km² expansion project and, on 21 January 2016, signed an agreement between the Government of China and the Government of Egypt (‘the 2016 Cooperation Agreement’), which clarified the significance and legal status of the SETC-Zone.

10      According to the 2016 Cooperation Agreement, the governments of the two countries are to develop jointly the SETC-Zone. They are to do so in line with their respective national strategies, namely the ‘Belt and Road’ Initiative for China on the one hand, and the Suez Canal Corridor Development Plan for Egypt on the other hand. For that purpose, the Government of Egypt provides the land, the labour and certain tax breaks, whereas the Chinese companies operating in the zone run the production facility with their assets and managers. Compensating for a lack of Egyptian funds, the Government of China also supports this project by making the necessary financial means available to Egypt TEDA and to the Chinese firms operating in the SETC-Zone.

B.      The procedure leading to the adoption of the contested implementing regulation

11      Following a complaint lodged on 1 April 2019 pursuant to Article 10 of Regulation (EU) 2016/1037 of the European Parliament and of the Council of 8 June 2016 on protection against subsidised imports from countries not members of the European Union (OJ 2016 L 176, p. 55; ‘the basic anti-subsidy regulation’) by the intervener, Tech-Fab Europe eV, on behalf of producers representing more than 25% of the total EU production of GFF, the Commission initiated an anti-subsidy investigation based on that article with regard to imports into the European Union of GFF originating in China and Egypt. On 16 May 2019, the Commission published a Notice of Initiation in the Official Journal of the European Union (OJ 2019 C 167, p. 11).

12      More specifically, as is apparent from recital 127 of the contested implementing regulation, the products under investigation are fabrics of woven or stitched continuous filament glass fibre rovings or yarns with or without other elements, excluding products which are impregnated or pre-impregnated (pre-preg), and excluding open mesh fabrics with cells with a size of more than 1.8 mm in both length and width and weighing more than 35 g/m² currently falling under CN codes ex 7019 39 00, ex 7019 40 00, ex 7019 59 00 and ex 7019 90 00 (TARIC codes 7019 39 00 80, 7019 40 00 80, 7019 59 00 80 and 7019 90 00 80).

13      The investigation of subsidisation and injury covered the period from 1 January to 31 December 2018. The examination of trends relevant for the assessment of injury and the causal link covered the period from 1 January 2015 to the end of the investigation period.

14      During the investigation period, Jushi produced both GFF and GFR. Jushi used its self-produced GFR to manufacture GFF, but it also sold GFR to unrelated customers both in Egypt and abroad, as well as to Hengshi. Hengshi manufactured GFF from GFR purchased from Jushi as well as from a different related company and an unrelated company, both of which are established in China.

15      Jushi sold GFF directly to unrelated customers in Egypt and the European Union. It also exported GFF to three related customers in the European Union, namely Jushi Spain SA, Jushi France SAS and Jushi Italia Srl. Furthermore, Jushi sold GFF in the European Union through a related company established outside the European Union, Jushi Group (HK) Sinosia Composite Materials Co. Ltd. Jushi’s sales of GFF within the European Union represented approximately [confidential]% (2) of the applicants’ total sales of that product during the investigation period.

16      Hengshi, which produces only GFF, did not sell them on the Egyptian market but sold them in the European Union, directly to unrelated customers and through a related company established outside the European Union, Huajin Capital Ltd. Hengshi’s sales of GFF in the European Union represented approximately [confidential]% of the applicants’ total sales of that product during the investigation period.

17      On 21 February 2019, the Commission initiated a separate anti-dumping investigation concerning imports into the European Union of GFF originating in China and Egypt (‘the parallel anti-dumping investigation’). On 7 June 2019, it also initiated an anti-subsidy investigation concerning imports of GFR originating in Egypt (‘the parallel anti-subsidy investigation on GFR’).

18      The applicants submitted comments on the subsidies, injury and EU interest on 14 June 2019. They filed their responses to the anti-subsidy questionnaire on 1 July 2019. On 27 September 2019, the applicants sent their reply to the Commission’s request for additional information. The Commission carried out verification visits at the applicants’ premises and the premises of the companies related to the applicants.

19      On 26 July 2019, the Government of Egypt filed its responses to the anti-subsidy questionnaire. On 15 October 2019, it sent its reply to the Commission’s request for additional information. On 23 December 2019, the Commission informed the Government of Egypt of its intention to apply Article 28 of the basic anti-subsidy regulation, in view of certain information regarding the legal and institutional framework and the existence of intergovernmental agreements between the People’s Republic of China and Arab Republic of Egypt concerning the SETC‑Zone. On 3 January 2020, the Government of Egypt replied to the Commission and provided it with the information requested.

20      On 27 February 2020, the Commission sent the final disclosure document to the applicants, on which they submitted their comments on 20 March 2020. A hearing concerning that disclosure was held with the Commission.

21      On 17 April 2020, the Commission issued an additional final disclosure document, on which the applicants submitted their comments on 22 April 2020. A hearing concerning that disclosure was held with the Commission

22      On 12 June 2020, the Commission adopted the contested implementing regulation. That implementing regulation was published in the Official Journal of the European Union on 15 June 2020 and entered into force on the day following its publication.

23      That implementing regulation imposes a definitive countervailing duty of 10.9% on the applicants’ imports of GFF into the European Union.

II.    Forms of order sought

24      The applicants claim that the Court should:

–        annul the contested implementing regulation in so far as it concerns them;

–        order the Commission to pay the costs;

–        order the intervener to bear its own costs.

25      The Commission and the intervener contend that the Court should:

–        dismiss the action as unfounded;

–        order the applicants to pay the costs.

III. Law

26      The applicants put forward six pleas in law in support of their action. Those pleas in law allege, first, that the Commission’s methodology for calculating the amount of the subsidies infringes Article 1(1), the first sentence of Article 5, Article 6, Article 12(1)(c) and Article 24(1) of the basic anti-subsidy regulation, second, that the Commission’s decision to countervail the financial contributions granted by Chinese public bodies infringes Article 2(a) and (b), Article 3(1)(a) and Article 4(2) and (3) of the basic anti-subsidy regulation, third, that the Commission’s decision concerning the provision of land to Jushi infringes the applicants’ rights of defence and Article 30 of the basic anti-subsidy regulation, as well as Article 3(2), Article 5 and Article 6(d) of the basic anti-subsidy regulation, fourth, that the Commission’s decision to countervail the import duty drawback scheme for input materials used by Jushi to produce GFR infringes Article 3(1)(a)(ii), Article 3(2) and Article 5 of the basic anti-subsidy regulation, fifth, that the Commission’s decision to countervail the tax treatment of foreign exchange losses infringes Article 3(2) and Article 4(2)(c) of the basic anti-subsidy regulation and, sixth, that the Commission’s methodology for determining the undercutting margin in relation to the applicants infringes Article 1(1), Article 2(d) and Article 8(1), (2) and (5) of the basic anti-subsidy regulation.

A.      The first plea in law, alleging infringement of Article 1(1), the first sentence of Article 5, Article 6, Article 12(1)(c) and Article 24(1) of the basic anti-subsidy regulation

27      This plea is divided into two parts.

1.      The first part of the first plea, alleging infringement of Article 1(1), the first sentence of Article 5, Article 6 and Article 12(1)(c) of the basic anti-subsidy regulation

28      The applicants submit that, by adding up the amounts of subsidies received individually for each subsidy scheme by Jushi and Hengshi respectively and by dividing the total thus obtained by the combined total turnover of the applicants taken together, the Commission attributed to Hengshi the subsidy amounts received by Jushi and, therefore, did not calculate the amount of the countervailable subsidies in terms of the benefit conferred on each recipient.

29      According to the applicants, as is the case in all anti-dumping investigations involving two or more exporting producers, the Commission should have first calculated the individual subsidy amounts of Jushi and Hengshi for their respective exports of the product concerned to the European Union during the investigation period and then calculated the single amount of the countervailable subsidies for Jushi and for Hengshi by applying a weighted average of their individual subsidy amounts in accordance with the following formula:

(Amount of Jushi’s subsidies × quantity of GFF exported to the European Union by Jushi) + (amount of Hengshi’s subsidies × quantity of GFF exported to the European Union by Hengshi)/total combined quantity of GFF exported to the European Union by Jushi and Hengshi

30      The result of that calculation is a single amount of countervailable subsidies of 4.6% instead of the amount used by the Commission, which was 10.9%.

31      The Commission, supported by the intervener, disputes those arguments.

32      As a preliminary point, it should be noted that, even though, in the heading of this part of the first plea, the applicants mention only Article 1(1), the first sentence of Article 5, Article 6 and Article 12(1)(c) of the basic anti-subsidy regulation, it is apparent from their arguments that, in essence, they also allege an infringement of Article 7(1) and (2) of the basic anti-subsidy regulation. They dispute the use of their combined total turnover from all products as an appropriate denominator for the calculation of the amount of the countervailable subsidies. Consequently, since, according to settled case-law, an applicant’s pleas must be interpreted in terms of their substance rather than of their formal classification, it is also necessary to examine whether the Commission infringed Article 7(1) and (2) (see, by analogy, judgment of 11 September 2014, Gold East Paper and Gold Huasheng Paper v Council, T‑444/11, EU:T:2014:773, paragraph 39 and the case-law cited).

33      First, as regards the calculation of the benefit conferred on the recipient, it should be recalled that it is clear from the case-law that the benefit must be established and calculated for each recipient according to the recipient’s situation and that a benefit exists if, in practice, the recipient received a financial contribution under more favourable conditions than those to which it has access on the market. Furthermore, it is apparent from a combined reading of Articles 5 and 6 of the basic anti-subsidy regulation that there can be a benefit for the recipient only if, thanks to the financial contribution of the public authorities, the recipient is better off than in the absence of a contribution. Therefore, as far as possible, the method used by the Commission to calculate the advantage must make it possible to reflect the benefit actually conferred on the recipient (see, to that effect, judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑300/16, EU:T:2019:235, paragraphs 207, 208 and 210).

34      Second, Article 7(1) and (2) of the basic anti-subsidy regulation provides:

‘1. The amount of the countervailable subsidies shall be determined per unit of the subsidised product exported to the Union …

2. Where the subsidy is not granted by reference to the quantities manufactured, produced, exported or transported, the amount of countervailable subsidy shall be determined by allocating the value of the total subsidy, as appropriate, over the level of production, sales or exports of the products concerned during the investigation period for subsidisation.’

35      In that regard, it should be noted that, by its Information on the Guidelines for the calculation of the amount of subsidy in countervailing duty investigations (OJ 1998 C 394, p. 6), the Commission laid down guidelines on such a calculation (‘the Guidelines’). Section F of those guidelines, entitled ‘Investigation period for subsidy – calculation expense versus allocation’, includes a point (b), entitled ‘Appropriate denominator for allocation of subsidy amount’, which provides, inter alia:

‘(iii)      If the benefit of a subsidy is limited to a particular product, the denominator should reflect only sales of that product. If this is not the case, the denominator should be the recipient’s total sales’.

36      Third, in the sphere of measures to protect trade, the institutions of the European Union enjoy a broad discretion by reason of the complexity of the economic, political and legal situations which they have to examine. The exercise of that discretion is not, however, excluded from judicial review. According to consistent case-law, in the context of such a review, the EU judicature will verify 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 appraisal or a misuse of powers (see judgment of 11 September 2014, Gold East Paper and Gold Huasheng Paper v Council, T‑444/11, EU:T:2014:773, paragraphs 71 and 73 and the case-law cited).

37      As regards, more particularly, the challenge to the choice of an inappropriate denominator, an applicant must adduce sufficient evidence to render implausible the assessments in the regulation at issue of the facts concerning that denominator. Such evidence is necessary in order to establish that an EU institution has committed a manifest error of assessment such as to justify the annulment of a measure (see, to that effect, judgment of 11 September 2014, Gold East Paper and Gold Huasheng Paper v Council, T‑444/11, EU:T:2014:773, paragraph 62 and the case-law cited).

38      It is in the light of those considerations that it must be ascertained whether the Commission adopted an appropriate method for calculating the single amount of the applicants’ countervailable subsidies.

39      At the outset, it is appropriate to recall the method of calculation used by the Commission to establish, in the present case, the single amount of the countervailable subsidies.

40      In the first place, the Commission calculated the amount of the subsidies received by Jushi and Hengshi individually for all the products and not only for GFF. In the second place, it added the amounts of the subsidies individually received by the applicants in order to obtain the total amount of the subsidies, expressed as a percentage of the combined total turnover of the applicants taken together. In the third place, that rate was applied to the combined total turnover of Jushi and Hengshi generated by GFF exported to the European Union during the investigation period, in order to obtain the total amount of the subsidies granted to GFF exported to the European Union by Jushi and Hengshi taken together. In the fourth place, the Commission calculated the amount of the subsidies per tonne of GFF exported to the European Union, by dividing the total amount of the subsidies granted to GFF exported to the European Union by Jushi and Hengshi considered together by the combined quantities of GFF which Jushi and Hengshi exported to the European Union during the investigation period. Lastly, the amount of the subsidies per tonne of GFF exported in that way was expressed as a percentage of the Cost Insurance Freight (CIF) unit price per tonne, to obtain the single amount of the countervailable subsidies, namely 10.96%.

41      Although the applicants do not allege that the Commission calculated a single amount of countervailable subsidies for both companies, they claim that that single amount should have been calculated on the basis of a weighted average of their individual subsidy amounts.

42      The method of calculation proposed by the applicants is based on the premiss that the individual subsidy amounts of Jushi and Hengshi had to be expressed as a percentage of their respective exports of GFF to the European Union and not of their combined total turnover taken together.

43      That premiss is, however, incorrect.

44      The subsidies granted in the present case benefited the applicants’ entire production, including both GFR and GFF, and not only GFF. The Commission stated in its written pleadings before the Court and without being contradicted in that regard by the applicants that they have neither demonstrated nor even explained to what precise extent the subsidies in question were tied to the production of GFR or GFF specifically.

45      Since the subsidies granted in the present case benefited all the applicants’ production and not only the product concerned, namely GFF, the Commission was fully entitled to apply Article 7(2) of the basic anti-subsidy regulation.

46      In that regard, it should be noted that that provision does not expressly provide for a method of calculation for allocating the total subsidy amounts over the level of production. The Commission therefore enjoyed a broad discretion, provided that that allocation was appropriate in terms of the benefit conferred on the recipient.

47      As regards, more specifically, the concept of a ‘recipient’, as is apparent from the case-law cited in paragraph 33 above, the Courts of the European Union have not ruled out the possibility that that term might also include a ‘group of persons’. In that regard, it should also be noted that the World Trade Organisation (WTO) Appellate Body considered, in paragraph 108 of its report in the case of ‘United States – Countervailing Measures Concerning Certain Products from the European Communities (WT/DS 212/AB/R), that the term ‘recipient’ could be interpreted as referring to a ‘group of persons’, which could consist of ‘natural persons’, ‘natural and legal persons’ or exclusively ‘legal persons’.

48      It follows that the calculation method for allocating as appropriate the total subsidy amounts over the level of production may take account of the fact that the recipient is a group of companies which has received those subsidies for its entire production.

49      In the present case, the Commission explained, in recitals 625, 931 and 932 of the contested implementing regulation, that, in the calculation for allocating the total subsidy amounts received by Jushi and Hengshi over the level of production, it took account of the fact that the applicants were related companies belonging to the same group and that, in addition, Jushi also produced the main raw material used in GFF by Hengshi. It inferred from this that, because they were related, those companies could use those benefits for the product concerned indistinctly and, thus, regardless of the exporting producer.

50      The applicants do not dispute that they received the subsidies in question, since they belong to the CNBM group.

51      Consequently, since, as is apparent from paragraph 48 above, the Commission was entitled to take account of the fact that the applicants belonged to the same group and, as a result, was entitled to calculate the amount of the countervailable subsidies in relation to their total turnover taken together, it must be concluded that the calculation method summarised in paragraph 40 above is not vitiated by a manifest error of assessment.

52      That method is also consistent with its practice, as codified by the Guidelines.

53      It is apparent from the extract from the Guidelines cited in paragraph 35 above that, when choosing the denominator used to allocate the amount of the subsidy, if the benefit of a subsidy is not limited to a particular product, the denominator should be the recipient’s total sales. Thus, the Commission’s approach of dividing the total subsidy amounts received by Jushi and Hengshi by their combined total turnover taken together is, contrary to the applicants’ submission, consistent with its practice in anti-subsidy investigations.

54      Moreover, when questioned at the hearing on the application of those guidelines in the present case, the applicants merely asserted that, despite the existence of those guidelines, in any event, the Commission’s practice in the present case differs from its practice in anti-dumping investigations. That argument is irrelevant. First, 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 anti-dumping regulation’) and the basic anti-subsidy regulation deal with two different matters. Second, the rules for calculating the dumping margin, on the one hand, and the amount of the countervailable subsidies, on the other, are not the same.

55      Moreover, as regards the argument raised in the reply that the Commission was not consistent with the methodology adopted with the Chinese undertakings of the CNBM group in the present anti-subsidy investigation or with the methodology adopted in the parallel anti-subsidy investigation on GFR, it should be noted that the adoption of a different approach by the Commission is justified on account of the diversity of the situations at issue. As regards, in particular, the Chinese undertakings in the CNBM group, they did not all sell the product concerned, unlike the applicants. As regards the parallel anti-subsidy investigation on GFR, it should be noted, as the Commission observes, that there was only one company, Jushi, which produced the product concerned (in this case GFR), so that the calculation of a single amount of the subsidies for the group was not necessary.

56      Lastly, as regards the argument concerning the pass-through of the benefit from Jushi to Hengshi through the sale of GFR, it should be noted, as the Commission observes, that, as is apparent from paragraph 146 of the WTO Appellate Body report in the case ‘United States – Final Countervailing Duty Determination with respect to certain Softwood Lumber from Canada’ (WT/DS 257/AB/R), the investigating authority must establish that the benefit conferred by a financial contribution directly on input producers is passed through, at least in part, to producers of the processed product subject to the investigation, where input producers and downstream processors operate at arm’s length.

57      As is apparent from the judgment of 1 March 2023, Hengshi Egypt Fiberglass Fabrics and Jushi Egypt for Fiberglass Industry v Commission (T‑301/20), in particular from the analysis of the first part of the first plea, the price of GFR sold by Jushi to Hengshi was not made at arm’s length.

58      Having regard to the foregoing, it must be concluded, in the light of the case-law cited in paragraph 37 above, that, since the applicants have failed to adduce sufficient evidence to render implausible the assessments of the facts made in the contested implementing regulation concerning the method adopted by the Commission to calculate the single amount of the applicants’ countervailable subsidies, the first part of the first plea must be rejected.

2.      The second part of the first plea, alleging infringement of Article 1(1) and Article 24(1) of the basic anti-subsidy regulation

59      The applicants submit that the Commission was wrong to subject Hengshi’s exports of GFF to the European Union to both countervailing and anti-dumping duties, since the second subparagraph of Article 24(1) of the basic anti-subsidy regulation prevents the Commission from applying both those duties on the same product concerned to deal with the same situation.

60      As the Commission, in the parallel anti-dumping investigation, calculated the normal value of Hengshi’s GFF on the basis of Article 2(5) of the basic anti-dumping regulation, since it took the view that Jushi’s sales of GFR to Hengshi were not made at arm’s length, it follows that the anti-dumping duty imposed on Hengshi already addressed the subsidisation that passed through the sales of GFR from Jushi to Hengshi.

61      The Commission, supported by the intervener, disputes those arguments.

62      It should be noted at the outset that the second subparagraph of Article 24(1) of the basic anti-subsidy regulation provides that ‘no product shall be subject to both anti-dumping and countervailing duties for the purpose of dealing with one and the same situation arising from dumping or from export subsidisation’.

63      The basic anti-subsidy regulation lists 12 examples of those subsidies in Annex I thereto.

64      In the present case, the Commission explained, in recitals 1119 and 1142 of the contested implementing regulation, that it had considered whether some of the subsidy schemes are export-contingent subsidies, which have the effect of reducing export prices and thus increasing accordingly the dumping margins, in order to decide whether it needs to deduct them from the dumping margin calculated in the context of the parallel anti-dumping investigation in accordance with Article 24(1) of the basic anti-subsidy regulation. It added that it had reached the conclusion that, since no export-contingent subsidy scheme in Egypt had been established, that provision was not applicable in the present case.

65      The applicants do not dispute that none of the subsidy schemes in the present case constituted a subsidy scheme that is an export-contingent subsidy.

66      As regards the argument that the question of the existence of a double remedy also arises where the normal value for the calculation of the anti-dumping margin is based not on domestic prices but on the use of surrogate values, it should be noted that, as is apparent from paragraph 543 of the report of the WTO Appellate Body of 11 March 2011 in the case ‘United States – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China’ (WT/DS 379/AB/R), which refers to footnote 972 of the Panel Report in that case, the findings on double remedies in the context of domestic subsidies granted within market economies are made for the sake of completeness and hypothetically, since no such question has been raised before those two bodies. That case-law concerns, in essence, the compatibility of the imposition of countervailing duties with the imposition of anti-dumping duties calculated in accordance with a ‘non-market economy’ methodology (‘the NME methodology’) on the same products. It is moreover in that context that the WTO Appellate Body found, in paragraph 583 of its report, that ‘the imposition of double remedies, that is, the offsetting of the same subsidisation twice by the concurrent imposition of anti-dumping duties calculated on the basis of an NME methodology and countervailing duties, is inconsistent with Article 19.3 of the SCM Agreement’.

67      However, in the parallel anti-dumping investigation, in particular in the case of Egypt, the Commission did not use the NME methodology to calculate the applicants’ normal value. The report cited in paragraph 66 above is therefore not relevant in the present case.

68      In any event, as the Commission points out in recital 1142 of the contested implementing regulation, the adjustment made in accordance with Article 2(5) of the basic anti-dumping regulation, in the context of the parallel anti-dumping investigation, concerned the fact that the price at which Jushi sold GFR to Hengshi did not reflect an arm’s length price, on the ground that it did not reflect the prevailing price of GFR charged by Jushi to unrelated customers on the Egyptian market. Thus, the Commission did not adjust the price of GFR paid by Hengshi to Jushi because that price was distorted by the subsidies received by Jushi.

69      In the light of the foregoing, the second part of the first plea must be rejected and, therefore, the plea must be rejected in its entirety.

B.      The second plea in law, alleging infringement of Article 2(a) and (b), Article 3(1)(a) and Article 4(2) and (3) of the basic anti-subsidy regulation

70      This plea is divided into two parts.

1.      The first part of the second plea, alleging infringement of Article 2(a) and (b) and Article 3(1)(a) of the basic anti-subsidy regulation

71      The applicants put forward three main complaints in support of this part. First, in their submission, the Commission’s interpretation of Article 3(1)(a) of the basic anti-subsidy regulation is not justified under EU law. Second, the Commission’s reliance on WTO law to interpret Article 3(1)(a) of that regulation is unfounded. Third, the Commission’s interpretation of Article 1.1(a)(1) of the Agreement on Subsidies and Countervailing Measures (‘the SCM Agreement’) does not comply with WTO case-law and public international law.

72      In support of the first complaint, the applicants submit that it follows from a literal interpretation of Article 3(1)(a) of the basic anti-subsidy regulation, the wording of which is clear and precise, and there being no need to also interpret it in the light of the Vienna Convention on the Law of Treaties of 23 May 1969 (‘the Vienna Convention’) and of the Draft articles on the Responsibility of States for Internationally Wrongful Acts, as adopted in 2001 by the International Law Commission of the United Nations (‘the ILC Articles’), that, not only the government granting the financial contribution, but also the financial contribution itself must be within the territory of the country of origin or export. That interpretation is supported by the overall context of the basic anti-subsidy regulation, in particular Article 10(7) and Article 13(1) thereof.

73      In support of the second complaint, the applicants submit that the Commission was wrong to interpret Article 3(1)(a) of the basic anti-subsidy regulation in the light of WTO law. They state that, while, according to the case-law, the EU Courts may review the legality of an EU measure in the light of WTO rules where the European Union intends to implement a particular obligation assumed in the context of the WTO, in the present case, an interpretation in the light of WTO law cannot be relied upon in relation to provisions of the basic anti-subsidy regulation which differ from those of the SCM Agreement. According to the applicants, the wording of the SCM Agreement is clearly different from that used in that regulation with regard to the definition of ‘subsidy’.

74      In support of the third complaint, the applicants submit that, even if WTO law should be taken into account in order to interpret the term ‘government’ in the basic anti-subsidy regulation, the Commission’s interpretation of Article 1.1(a)(1) of the SCM Agreement is still incorrect as it disregards Article 31(1) and (3) of the Vienna Convention. It is clear from that article of the SCM Agreement that the actions of governments of third countries cannot be attributed to the government of the country of origin or export. That interpretation is confirmed by other provisions of that agreement, such as Article 13(1), (2) and (4) and Article 18(1) (a).

75      Moreover, Article 11 of the ILC Articles is not a ‘relevant’ rule of international law within the meaning of Article 31(3)(c) of the Vienna Convention for the purposes of interpreting the term ‘government’ in Article 1.1(a)(1) of the SCM Agreement. The WTO Appellate Body did not rule otherwise in the case ‘United States – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China’ (WT/DS 379/AB/R). In the reply, the applicants add that, if the applicable law in that investigation had been the SCM Agreement rather than the basic anti-subsidy regulation, the Commission could have classified as subsidies, within the meaning of Article 1.1 of the SCM Agreement, the financial contributions granted by Chinese entities to the applicants, without having to ‘attribute’ those financial contributions to the Government of Egypt on the basis of Article 11 of the ILC Articles. Article 11 of the ILC Articles in any event is not applicable in the present case since it is intended to govern the conduct of a State which becomes part of another State following the acquisition of a territory, which is attributable to the succeeding State, or the subsequent adoption by a State of a private wrongful act which has been committed or is still ongoing. The applicants state that it is Articles 16 to 18 of the ILC Articles which govern the responsibility of the State in connection with the act of another State, and not Article 11 of those articles.

76      The Commission, supported by the intervener, disputes those arguments.

77      As is apparent from paragraph 72 above, according to the applicants, the Commission’s interpretation of Article 3(1)(a) of the basic anti-subsidy regulation, in particular the concept of ‘government’ of the country of origin or export, is not justified under EU law.

78      In order to address that issue, it should be recalled that, according to the case-law, each provision of EU law must be placed in its context and interpreted in the light of the provisions of EU law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied (see, to that effect, judgment of 28 July 2016, Association France Nature Environnement, C‑379/15, EU:C:2016:603, paragraph 49 and the case-law cited).

79      In that regard, first, it should be recalled that Article 3 of the basic anti-subsidy regulation provides that a subsidy is deemed to exist if the conditions in paragraphs 1 and 2 are fulfilled, that is to say if there is a ‘financial contribution’ by a government in the country of origin or export and if a ‘benefit’ is thereby conferred.

80      Article 2(b) of that regulation defines the term ‘government’ as a government or any public body within the territory of the country of origin or export.

81      The definition of ‘government’ in that article merely interprets the term ‘government’ as including the government or public bodies of the country of origin or export. However, that provision does not rule out the possibility that the financial contribution may be attributed to the government of the country of origin or export of the product concerned, on the basis of the specific evidence available.

82      Second, it should be noted that recital 5 of that regulation states that ‘in determining the existence of a subsidy, it is necessary to demonstrate that there has been a financial contribution by a government or a public body within the territory of a country, or that there has been some form of income or price support within the meaning of Article XVI of the GATT 1994, and that a benefit has thereby been conferred on the recipient enterprise’.

83      The words ‘within the territory of a country’ used in that recital do not imply that the financial contribution must come directly from the government of the country of origin or export. On the contrary, the use of those words, as the Commission points out, does not preclude the possibility of concluding that the financial contributions may be attributed to the country of origin or export of the product concerned.

84      Thus, the basic anti-subsidy regulation does not rule out the possibility that, even if the financial contribution does not come directly from the government of the country of origin or export, that contribution may be attributed to it.

85      The foregoing conclusion is all the more relevant in the specific context of the SETC-Zone, in which the applicants are located.

86      In the first place, the Commission took into consideration, in recital 690 of the contested implementing regulation, two statements made by two Egyptian Presidents relating to the SETC-Zone. The first statement, from 2012, referred to that zone as a key project of the bilateral cooperation between Egypt and China. The second statement, from 2014, related to the ‘Belt and Road’ initiative and specified, inter alia, that that initiative provided a significant opportunity for Egyptian recovery and that the Egyptian authorities were ready for active involvement and to provide their support. The Egyptian authorities wished to cooperate with China in developing inter alia the projects of the Suez Canal Corridor, the SETC-Zone, and in attracting Chinese undertakings to invest in Egypt.

87      In that regard, recital 691 of the contested implementing regulation states that the characteristics of the Chinese ‘Belt and Road’ initiative are public knowledge and that, according to the Guiding Opinions of the Chinese State Council on the Promotion of International Production Capacity and Equipment Manufacturing Cooperation of 13 May 2015, the policy support which undertakings ‘going abroad’ can receive include fiscal and tax support policies, concessional loans, financial support through syndicated loans, export credits, and project financing, equity investment, and finally export credit insurance.

88      In the second place, the Commission took into consideration, in recital 693 of the contested implementing regulation, the fact that the SETC-Zone was the subject of the 2016 Cooperation Agreement between the Government of China and the Government of Egypt. That agreement provides inter alia, according to Article 1 thereof, that the People’s Republic of China may apply certain of its laws within the SETC-Zone. Article 4(1) of that agreement provides that ‘the Chinese Government identifies the [SETC-Zone] as China’s overseas economic and trade cooperation zone’ and that ‘the Cooperation Zone, during the construction, business attraction and operation, is entitled to relevant policy support and facilitation provided by the Chinese Government for overseas economic and trade cooperation zones’. Article 5(1) of that agreement also provides that the Government of China is to support the Cooperation Zone by ‘encouraging relevant financial institutions to provide financing facility for … investment projects located within the Cooperation Zone, provided that the lending conditions and the loan use requirements are met’.

89      In the third place, recital 660 of the contested implementing regulation states that, in order to ensure the implementation of the 2016 Cooperation Agreement, the Government of China and the Government of Egypt established a three-level consultation mechanism, including a cooperation agreement for the creation of an Administration Commission for the SETC-Zone, a Management Committee for the zone, and subsequently reporting on problems and difficulties by Egypt TEDA and the Egyptian counterparts. It is moreover apparent from recital 652 of that regulation that Egypt TEDA is 80% owned by the Government of China and 20% owned by the Government of Egypt and is intended to drive the development of the SETC-Zone in Egypt.

90      Lastly, it is apparent from recitals 726 and 745 of the contested implementing regulation that the financial support granted to the Chinese companies established in Egypt was particularly significant.

91      The Government of China and the Government of Egypt therefore worked closely together to establish the SETC-Zone as a zone with special legal and economic features which enabled the government authorities of China to confer directly all the facilities inherent in China’s ‘Belt and Road’ initiative on the Chinese undertakings established in that zone.

92      In those circumstances, it cannot be accepted that an economic and legal construct such as that of the SETC-Zone, conceived in close collaboration between the Government of China and the Government of Egypt at the highest level, is not covered by the basic anti-subsidy regulation, without this undermining that regulation’s effectiveness or its purpose and objectives.

93      Third, contrary to what is claimed by the applicants, the Commission’s interpretation of Article 3(1)(a) of the basic anti-subsidy regulation is not contrary to either Article 10(7) or Article 13(1) of that regulation. As regards Article 10(7), the basic anti-subsidy regulation in no way precludes the possibility of the government of the country of origin or export from being consulted on the financial contributions attributable to it. In the present case, it is also apparent from the file that the Commission did indeed invite the Government of Egypt for consultations on issues such as the preferential loans granted by Chinese entities.

94      As regards Article 13(1) of that regulation, which allows, inter alia, the country of origin or export to eliminate or limit the subsidy or take other measures concerning its effects, such a possibility remains valid where the financial contribution may be attributed to the government of the country of origin or export. In the present case, it was open to the Government of Egypt to stop the close cooperation with the Government of China in relation to the financial contributions or to propose measures to limit the effects of the subsidies at issue.

95      In the light of the foregoing, it must be concluded that neither Article 3(1)(a) of the basic anti-subsidy regulation nor the general scheme of that regulation precludes a financial contribution granted by the government of a third country from being attributed to the government of the country of origin or export in a case such as that at issue in the present case, in the light of the specific evidence available as set out in paragraphs 86 to 91 above.

96      Furthermore, contrary to what the applicants claim, that conclusion is supported by the provisions of Article 1 of the SCM Agreement, in the light of which the basic anti-subsidy regulation must be interpreted. In that regard, it should be recalled that, where the European Union intended to implement a particular obligation assumed in the context of the WTO, or where the EU measure refers expressly to precise provisions of the WTO agreements, it is for the Courts of the European Union to review the legality of the EU measure in question in the light of the WTO rules (see, by analogy, judgment of 14 July 2021, Interpipe Niko Tube and Interpipe Nizhnedneprovsky Tube Rolling Plant v Commission, T‑716/19, EU:T:2021:457, paragraph 95).

97      It is apparent from recital 3 of the basic anti-subsidy regulation that the purpose of that regulation is, inter alia, to ‘reflect’ in EU legislation the rules of the SCM Agreement ‘to the best extent possible’.

98      Moreover, it has already been established by the case-law that Article 3 of the basic anti-subsidy regulation, entitled ‘Definition of a subsidy’, and Article 1 of the SCM Agreement are largely identical in their wording and fully identical in terms of their substance (see, to that effect, judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑300/16, EU:T:2019:235, paragraph 99).

99      Furthermore, no intention on the part of the legislature to depart from the substance of Article 1.1(a)(1) of the SCM Agreement is apparent from the recitals of the basic anti-subsidy regulation. On the contrary, as is apparent from recital 3 of that regulation cited in paragraph 97 above, the legislature did indeed intend to implement a particular obligation assumed in the context of the SCM Agreement within the meaning of the case-law cited in paragraph 96 above.

100    Thus, contrary to what the applicants maintain, the provisions of the basic anti-subsidy regulation must be interpreted, as far as possible, in the light of the corresponding provisions of the SCM Agreement (judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑300/16, EU:T:2019:235, paragraph 101). The same is true of Article 3 of that regulation, which seeks to implement the content of Article 1 of the SCM Agreement (judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑300/16, EU:T:2019:235, paragraph 102).

101    As regards Article 1.1(a)(1) of the SCM Agreement, it should be noted, first, that the latter defines a subsidy as a financial contribution by a government or any public body within the territory of ‘a’ Member of the WTO. That wording does not therefore preclude the possibility that a financial contribution granted by a third country may be attributed to the government of the country of origin or export, since it is sufficient that the financial contribution of the government or any public body is within the territory of ‘a’ Member of the WTO.

102    In the second place, Articles 13 and 18 of the SCM Agreement, which relate to consultations and undertakings respectively, do not call into question the foregoing considerations. The wording and purpose of those provisions do not exclude situations in which the financial contribution is attributed to a WTO member, since, first, members whose products may be investigated may be consulted on financial contributions attributable to them and, second, members whose products may be investigated may impose limitations on the subsidies attributable to them.

103    In the light of the foregoing, it must be held that, since the Commission correctly interpreted the basic anti-subsidy regulation in the light of the SCM Agreement, the question whether or not it took Article 11 of the ILC Articles into account is irrelevant. Consequently, it is also necessary to reject the third complaint of the present part of the plea and, therefore, that part in its entirety.

2.      The second part of the second plea, alleging infringement of Article 4(2) and (3) of the basic anti-subsidy regulation

104    The applicants submit, in essence, that the Commission infringed Article 4(2) and (3) of the basic anti-subsidy regulation in so far as it offset contributions to Jushi, which does not fall within the territorial jurisdiction of the granting authority. In the applicants’ view, it is clear from those provisions that, in order to be regarded as specific within the meaning of the basic anti-subsidy regulation, a subsidy must be made available to undertakings ‘within the jurisdiction of the granting authority’ and that the authority under whose jurisdiction the undertakings receiving the subsidies must be located is that which grants the subsidies and not that which is said to have acknowledged or adopted those subsidies. Such an interpretation is also confirmed by the Commission’s practice and by the WTO case-law, in particular in ‘United States – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China’ (WT/DS 379/AB/R). Since, in the present case, the granting authority responsible for the actions of public bodies, such as State-owned banks, the State-owned Assets Supervision and Administration Commission (SASAC) and the Silk Road Fund, was the People’s Republic of China and not the Government of Egypt, the applicants conclude that undertakings located in Egypt are not within the jurisdiction of the granting authority and that, therefore, the financial contributions granted to Jushi by those bodies cannot be regarded as specific within the meaning of Article 4(2) and (3) of the basic anti-subsidy regulation. That conclusion is said to be supported by the fact that those subsidies were not granted directly to Jushi by those bodies, but were granted to Jushi’s parent companies in China.

105    The Commission, supported by the intervener, disputes those arguments.

106    In that regard, Article 4(3) of the basic anti-subsidy regulation provides that a subsidy, which is limited to certain enterprises located within a designated geographical region within the jurisdiction of the granting authority, is to be specific.

107    It is apparent from the analysis of the first part of the second plea in law that the preferential support granted by the Government of China may be attributed to the Government of Egypt. As the Commission maintains, the fact that the preferential measures granted by the Government of China from which the Chinese companies established in the SETC-Zone benefited can be attributed to the Government of Egypt means that the Government of Egypt has the status of authority which granted the preferential financing. Moreover, that consideration applies both to the loans granted directly to Jushi and to the loans granted to Jushi’s parent companies in China, from which Jushi benefited.

108    It follows that the Commission did not infringe Article 4(2) and (3) of the basic anti-subsidy regulation.

109    Accordingly, the second part must be rejected, as must the second plea in law in its entirety.

C.      The third plea, alleging infringement of Article 30, Article 3(2), Article 5 and Article 6(d) of the basic anti-subsidy regulation

110    This plea consists of two parts.

1.      The first part of the third plea, alleging infringement of Article 30 of the basic anti-subsidy regulation and of the rights of the defence

111    The applicants submit that the Commission infringed their rights of defence, as well as Article 30 of the basic anti-subsidy regulation, by failing to disclose, before the publication of the contested implementing regulation, to the applicants or to the Government of Egypt, its full reasoning on the calculation of the amount of the benefit with regard to the provision of land to Jushi, in particular as regards the calculation of the value of the usufruct right, as set out in recital 848 of the contested implementing regulation. It is true that the Commission informed them of its intention to countervail the provision of land to Jushi by using the valuation carried out in 2016 by a committee of experts in order to establish a pricing map for the usufruct of land in the SCZone (‘the real estate valuation of 2016’) as a benchmark for the calculation of the benefit. The Commission, however, failed to explain the reasons why it conducted the benefit calculation by multiplying the yearly usufruct rate by 50 years instead of using a proper valuation formula.

112    If the applicants had been aware of the reasons given by the Commission in recital 848 of the contested implementing regulation during the administrative phase of the investigation, they could have provided additional evidence and comments rebutting the Commission’s arguments, such as those that they put forward in the second part of the present plea. In that regard, the applicants state, first, that they would have been able to point out to the Commission that the headings of the real estate valuation of 2016 clearly provide that the prices are set for ‘the current market value of the annual land usufruct by [United States dollars]/m2’ and, second, to have sought further evidence from the Government of Egypt confirming that the modality of the payment of the yearly rate for the usufruct right value, in accordance with the real estate valuation of 2016, was yearly payments.

113    The Commission, supported by the intervener, disputes those arguments.

114    At the outset, it must be observed that, under Article 30(1) and (2) of the basic anti-subsidy regulation, the exporters concerned may request final disclosure of the essential facts and considerations on the basis of which it is intended to recommend the imposition of definitive measures. That obligation of final disclosure is to ensure respect for the rights of the defence of the undertakings concerned (see judgment of 4 October 2006, Moser Baer India v Council, T‑300/03, EU:T:2006:289, paragraph 125 and the case-law cited).

115    Furthermore, according to settled case-law on measures to protect trade, the undertakings affected by an investigation preceding the adoption of definitive measures must be placed in a position during the administrative procedure in which they can effectively make known their views on the correctness and relevance of the facts and circumstances alleged (see judgment of 4 October 2006, Moser Baer India v Council, T‑300/03, EU:T:2006:289, paragraph 126 and the case-law cited).

116    However, it should be made clear that the right to be heard extends to all the factual and legal material which forms the basis of the decision-making act, but not to the final position which the authority intends to adopt. Thus, that right does not require that, before taking a final position on the assessment of the evidence submitted by a party, the administration must offer that party a further opportunity to comment on that evidence (see, by analogy, judgment of 14 July 2021, Interpipe Niko Tube and Interpipe Nizhnedneprovsky Tube Rolling Plant v Commission, T‑716/19, EU:T:2021:457, paragraph 211 and the case-law cited).

117    Lastly, the existence of an irregularity in the respect of those rights can lead to the annulment of a regulation establishing a countervailing duty only to the extent that there is a possibility that, as a result of that irregularity, the administrative procedure might have resulted in a different result, thereby materially affecting the rights of defence of the party concerned. However, that party cannot be required to demonstrate that the Commission’s decision would have been different, but simply that such a possibility cannot be totally ruled out, since that party would have been better able to defend itself if there had been no procedural error complained of (see, by analogy, judgment of 14 July 2021, Interpipe Niko Tube and Interpipe Nizhnedneprovsky Tube Rolling Plant v Commission, T‑716/19, EU:T:2021:457, paragraph 210 and the case-law cited). On the other hand, it is for the party concerned to establish specifically how it would have been better able to ensure its defence in the absence of that procedural irregularity, without merely pleading that it was impossible for it to provide comments on hypothetical situations (see, to that effect, judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑300/16, EU:T:2019:235, paragraph 79).

118    It is in the light of those considerations that this part of the plea must be examined.

119    First of all, it should be borne in mind that, in recital 844 of the contested implementing regulation, the Commission explains that, following the final and the additional final disclosures, it received comments from Jushi alleging several errors which it purportedly made in determining the benchmark for the sale of land. Jushi argued inter alia that the full value of the usufruct right over a plot of land is not the yearly rental price of the usufruct multiplied by the total duration of the usufruct, but the yearly rental price of the usufruct divided by the average return on investment. This is so because the initial yearly amount of the usufruct will lose value each year due to inflation. As a result, the Commission was required to divide the yearly price per square metre in United States dollars (USD) by the average profit to be expected by Egypt TEDA for the land.

120    It is in that context that the Commission explains, in recital 848 of the contested implementing regulation, that, as regards that argument, it deemed that the value of a usufruct is normally determined as a percentage of the market value of the underlying asset (namely the value of the full ownership) depending on the duration of the usufruct, that is to say the longer the usufruct, the closer the value of the usufruct will be to the value of full ownership. Since full ownership of land is by definition indefinite in time, by multiplying the yearly usufruct rate by 50 years, the resulting benchmark would therefore always be below the actual value of the full ownership. In addition, the Commission noted that in the concrete example of the usufruct contract signed by Egypt TEDA in 2016, the full amount of the usufruct had to be paid as a lump sum at the start date of the usufruct right. As there were no yearly rentals as such in practice, the argument put forward is ineffective.

121    In that regard, first, it should be noted that, already at the final disclosure stage, the Commission had explained to the applicants the reasons why it had considered that the total purchase value of undeveloped land for the developer could be calculated by multiplying the average yearly value of the land usufruct in the SCZone by the duration of the land usufruct contract signed with Egypt TEDA for the expansion zone of 6 km² of the SETC-Zone. It must be stated that recital 582 of the final disclosure document was drafted in the same way as recital 840 of the contested implementing regulation. The applicants do not dispute that they were able effectively to make known their views on the correctness and relevance of the evidence and circumstances alleged in that disclosure.

122    Second, in so far as the Commission’s explanation in recital 848 of the contested implementing regulation constitutes the Commission’s response to a complaint raised by the applicants in the context of the final disclosure and the additional final disclosure and, therefore, evidence supporting the final position which it intended to adopt, it cannot be alleged, on the basis of the case-law cited in paragraph 116 above, that the Commission infringed the applicants’ rights of defence by not disclosing that evidence during the administrative phase.

123    Third, the applicants cannot reasonably claim that they could have requested additional information from the Government of Egypt, or that they could have put forward the same arguments before the Commission as those which they raised before the Court in the context of the second part of the third plea if they had known in advance the Commission’s reasoning set out in recital 848 of the contested implementing regulation.

124    On the one hand, as the Commission clearly stated in recitals 828 and 840 of the contested implementing regulation, the Government of Egypt did not provide it with either statistics on land prices applicable in the SCZone or the tender procedures relating to the purchase transactions by the developers. In addition, even following the adoption of the contested implementing regulation and in the present court proceedings, the applicants were not able to submit the alleged information referred to in paragraph 112 above which is claimed to be available to the Government of Egypt. On the other hand, it must be noted that, as is apparent from paragraph 157 below, all the arguments put forward by the applicants in the context of the second part of the third plea must be rejected.

125    Thus, it has not been shown that, if the applicants had been able, during the administrative procedure, to submit the additional evidence or arguments referred to in paragraph 124 above, the Commission might have reached a different conclusion.

126    In the light of the foregoing, the first part of the third plea must be rejected.

2.      The second part of the third plea, alleging infringement of Article 3(2), Article 5 and Article 6(d) of the basic anti-subsidy regulation

127    According to the applicants, the Commission committed a manifest error of assessment in establishing the benchmark for the calculation of the amount of the benefit with regard to the provision of land to Jushi. They put forward three complaints in support of the present part of the plea.

(a)    The first complaint, alleging the use of the wrong formula to calculate the full value of the usufruct right

128    The applicants claim that the Commission applied the wrong formula to calculate the full value of the usufruct right, since it compared the price of the plots of land purchased by Jushi in full ownership with the yearly value of a usufruct right multiplied by the number of years of that usufruct right. However, that benchmark does not reflect the characteristics of the sale of the plots of land to Jushi because the value in full ownership of a yearly usufruct right over a plot of land is not equal to the yearly rental value of a plot multiplied by the number of years of the usufruct right. In so far as a yearly payment of a rent under a usufruct contract can be simplified as a ‘perpetuity’, that is, a constant stream of identical cash flows with no end, the Commission should have used the discounted cash flow method for its calculation. The formula for that calculation is as follows:

‘PV’ = present value; ‘C’ = cash flow; ‘r’ = discount rate.

129    In the applicants’ submission, the formula used by the Commission fails to take into account the fact that, because of the time value of money, each payment is only a fraction of the last.

130    In addition, the fact that, in the example of the contract signed by Egypt TEDA in 2016 on the expansion by 6 km² of the SETC-Zone, the full amount of the usufruct was paid as a lump sum is irrelevant, as that contract set the price at a fixed rate for 50 years, and not as a yearly rent and, in any event, the usufruct in question was not to be paid as a lump sum, but in several instalments.

131    Lastly, the Commission incorrectly relied on the real estate valuation of 2016 in order to establish the benchmark, since that valuation provides current prices for the market value of the annual land usufruct, and not prices to be paid as a lump sum. Furthermore, the negotiations for Egypt TEDA’s purchase of the usufruct right in question took place before the change to the land ownership law, and the real estate valuation of 2016 marked the beginning of a new practice for setting the price of usufruct rights in the SCZone by the Government of Egypt. Consequently, the Commission should have calculated the benchmark by using a formula which takes into account the payment terms set out in that valuation, namely yearly instalments, and cannot simply multiply the yearly annual land usufruct value by the estimated number of years of the usufruct right.

132    Moreover, the applicants argue that if the Commission had any doubts in that regard, it should have requested further information from the Government of Egypt, particularly in view of its obligation to conduct its investigation diligently. The Commission, however, failed to do so and even impeded the Government of Egypt from providing such information by not disclosing its reasoning prior to the adoption of the contested implementing regulation.

133    The Commission, supported by the intervener, disputes those arguments.

134    It should be noted, as a preliminary point, that the Commission stated, in recital 840 of the contested implementing regulation, that the Government of Egypt was not able to provide any information or statistics on purchase prices for land in the SCZone and that it only provided information on transactions regarding land usufruct, namely the 2016 property valuation and an example of a land usufruct contract that Egypt TEDA entered into with the Main Development Company (‘MDC’), an Egyptian real estate developer, in 2016. As regards MDC in particular, the Commission explained, in recital 813 of the contested implementing regulation, that since 2015 it was no longer possible to purchase the full ownership of land from the General Authority of the SCZone, since that authority only provided usufruct rights of the land to that developer, which then put the usufruct of the land up for bidding to sub-developers – such as Egypt TEDA – which ultimately rented out the land to the undertakings located in the zone. As is apparent from Article 5 of the usufruct contract signed by Egypt TEDA and MDC, the usufruct fees were set at a fixed rate for the duration of the usufruct and the payment of the fee was staggered over several instalments to be made according to a precise schedule.

135    It is therefore in the light of those factors that the Commission compared, on the one hand, the value of the plots of land in full ownership purchased by Jushi with, on the other hand, the average yearly value of the land usufruct in the SCZone multiplied by the duration of the land usufruct contract signed between MDC and Egypt TEDA for the expansion zone of 6 km² of the SETC-Zone, in order to ascertain whether Jushi had received a benefit as regards the provision of land for less than adequate remuneration.

136    In that regard, first, it should be noted that the applicants do not call into question the Commission’s findings referred to in paragraph 134 above, in particular the lack of information concerning the purchase price of land in full ownership in the SCZone. At most, they claim that the Commission could have obtained relevant information at a later stage from the Government of Egypt concerning the real estate valuation of 2016.

137    That argument must, however, be rejected, in so far as, as has been noted in paragraph 124 above in the context of the analysis of the first part of the present plea, the applicants were unable to present or even explain the alleged information that the Government of Egypt could have provided concerning the real estate valuation of 2016.

138    Second, in so far as the applicants criticise the Commission for not having used the discounted cash flow calculation method, which they claim is more appropriate than that proposed by that institution, it must be held, first of all, that it is not apparent from the file lodged before the Court that the Government of Egypt has ever used that method to calculate usufruct rights in the SCZone. In that regard, the applicants also stated at the hearing that, since the change to the land ownership law, those public authorities have not yet sold usufruct rights on the basis of the real estate valuation of 2016, with the result that they were unable to confirm whether the discounted cash flow calculation method was applied in other usufruct contracts in the SCZone. Next, it must be stated that the real estate valuation of 2016 does not refer to the method proposed by the applicants. Lastly, the usufruct contract signed by Egypt TEDA and MDC, the only example of a usufruct contract in the SCZone available to the Commission for the purposes of comparison, did not in any way mention that the usufruct fees were calculated according to the discounted cash flow method. On the contrary, as is apparent from paragraph 134 above, that contract stated, in Article 5, that those fees were set at a fixed rate for the duration of the usufruct.

139    Consequently, since, first, the Commission had very limited information from the Government of Egypt, second, this information did not show that the calculation of the value of the usufruct rights was based in the SCZone on the discounted cash flow method, third, in the only example of a usufruct contract signed between two developers in the SCZone, the usufruct fees were set at a fixed rate and, fourth, the usufruct rates in the SCZone had been set by the Government of Egypt itself in the real estate valuation of 2016, it cannot be alleged that the Commission made a manifest error of assessment in calculating the benchmark by multiplying a usufruct rate set out in the real estate valuation of 2016 by 50, as was the case in the usufruct contract signed between Egypt TEDA and MCD.

140    Consequently, the first complaint must be rejected.

(b)    The second complaint, alleging the addition of excessive investment costs

141    The applicants dispute the fact that, having established the benchmark price per square metre for the purchase of a plot of undeveloped land, the Commission took into account Egypt TEDA’s foreseen investment cost for the expansion zone, which was estimated to stand at USD 230 million, and divided that investment by the area of that zone. According to the applicants, that cost was excessive and artificially inflated the benchmark used in the Commission’s analysis. Indeed, Jushi purchased undeveloped land, without residential buildings on it, on which it built its factory. Yet Egypt TEDA’s investment amount in question related to the construction of an entire industrial zone including buildings. Furthermore, the Commission cannot reasonably contend that it could not find publicly available information on a more detailed breakdown of the costs when it failed to ask the interested parties for that information before the adoption of the contested implementing regulation.

142    The Commission, supported by the intervener, disputes those arguments.

143    It should be noted at the outset that the Commission explained, in recital 841 of the contested implementing regulation, that, in order to take into account the cost for the developer of developing the land, Egypt TEDA’s investment cost per square metre was then calculated based on public information. According to this information, an investment of USD 230 million was planned for the expansion zone of 6 km². A profit margin for the developer was also added.

144    However, as is apparent from recital 844 of the contested implementing regulation, in the final and the additional final disclosures, the applicants claimed that the investment cost of USD 230 million announced by Egypt TEDA included not only the price of the usufruct of the land but also investment for building residential areas, service areas and factories, whereas the plots purchased by Jushi did not include any development of that type, as Jushi purchased the land undeveloped.

145    In response to that argument, the Commission stated, in recital 849 of the contested implementing regulation, that Jushi had indeed purchased land without buildings on it. However, this land already had all necessary utilities: roads, sewage treatment, public lighting, security, and other service facilities provided by Egypt TEDA. Such improvements are likely to affect the value of land.

146    In that regard, it should be noted that the Commission had no information concerning the costs of developing an undeveloped plot of land by a developer, although it had put questions to both the Government of Egypt and Egypt TEDA in that regard. The only information available to it was obtained from websites. However, that information was essential in the calculation of the benchmark and was intended to provide an estimate of that value which is as close as possible to the conditions under which Jushi purchased its land.

147    Admittedly, it should be noted, as the applicants have done, that the information mentioned in paragraph 143 above does not precisely reflect the conditions under which Jushi purchased its land, since it is common ground that that land did not have buildings on it, whereas Egypt TEDA’s investment in the expansion zone also envisaged the construction of buildings. However, as was pointed out by the Commission in recital 849 of the contested implementing regulation without being challenged by the applicants, the land which Jushi purchased from Egypt TEDA had all necessary utilities, such as roads, sewage treatment, public lighting, security, and other service facilities provided by Egypt TEDA. In addition, the Commission divided the total investment cost by the total area of the expansion zone, namely 6 km², with the result that, by using the widest possible denominator, it endeavoured to ensure that the investment cost would not be applied to the applicants disproportionately. Lastly, although the applicants complain that the Commission failed to request the interested parties to provide a more detailed breakdown of the development costs in the SCZone, it should be noted that, in the comments on the final disclosure, in those on the additional final disclosure or in the pleadings before the Court, the applicants do not submit any additional information concerning those costs which they or the Government of Egypt could have provided.

148    Accordingly, the second complaint must be rejected as unfounded.

(c)    The third complaint, alleging incorrect adjustment of the purchase price in relation to the 2011 plot of land, as a result of the application of an incorrect USD/Egyptian Pound exchange rate

149    The applicants take issue with the Commission for the fact that, as regards the land purchase of 2011, it adjusted the benchmark obtained on the basis of the usufruct yearly market value in 2016 based on the difference between Egypt’s 2016 GDP and its 2011 GDP.

150    According to the applicants, the Commission should have converted that benchmark using the exchange rate at the time of the sale in 2011, since the USD to Egyptian Pound exchange rate in 2016 was substantially higher than that in 2011 owing to the devaluation of the Egyptian Pound (EGP). Furthermore, Gross Domestic Product (GDP) fluctuations are not the same as fluctuations in the valuation of a currency, and converting values in foreign currencies by using the exchange rate at the time of the relevant transaction is in line with the Commission’s practice. The applicants refer in particular to recital 802 of the contested implementing regulation and to recital 92 of Commission Implementing Regulation (EU) 2017/141 of 26 January 2017 imposing definitive anti-dumping duties on imports of certain stainless steel tube and pipe butt-welding fittings, whether or not finished, originating in the People’s Republic of China and Taiwan (OJ 2017 L 22, p. 14).

151    The Commission, supported by the intervener, disputes those arguments.

152    First of all, it should be recalled that the Commission explained, in recital 842 of the contested implementing regulation, that, for the plot of land bought in 2011, the 2016 purchase price was corrected for inflation and GDP evolution. The adjustment was calculated on the basis of inflation rates and evolution of GDP per capita at current prices in USD for Egypt as published by the International Monetary Fund (IMF) for 2016. In response to the argument put forward by the applicants in their comments on the final and the additional final disclosure (see recital 844 of the contested implementing regulation), according to which the Commission should have used the exchange rate applicable at the time of sales to convert the benchmark in USD into Egyptian Pounds, the Commission explained, in recital 850 of the contested implementing regulation, that inflation caused by the devaluation of the Egyptian Pound in 2016 compared to the USD had already been factored into the GDP adjustment and that further adjustments for the exchange rate changes would result in double counting.

153    In the first place, it should be noted that, while it is true that the Commission took the 2016 USD/EGP exchange rate into consideration for the benchmark obtained on the basis of the usufruct yearly market value in 2016, it nevertheless adjusted that rate to take account of inflation rates and evolution of GDP per capita at current prices in USD for Egypt, as published by the IMF for 2016.

154    By merely submitting that the applicable exchange rate should have been the 2011 exchange rate, since that of 2016 was distorted by the devaluation of the Egyptian Pound, the applicants have failed to explain why the adjustment proposed by the Commission for the USD/EGP exchange rate of 2016, relying in particular on inflation rates and on the evolution of GDP per capita at current USD prices for Egypt, as published by the IMF for 2016, would not take sufficient account of that devaluation.

155    In the second place, as regards the argument that the method suggested by the applicants corresponds to the Commission’s practice, it should be recalled, as regards the reference to Implementing Regulation 2017/141, that the lawfulness of a regulation imposing countervailing duties must be assessed in the light of legal rules and, in particular, the provisions of the basic anti-subsidy regulation, not on the basis of the Commission’s alleged previous practice in taking decisions (see, by analogy, judgment of 18 October 2016, Crown Equipment (Suzhou) and Crown Gabelstapler v Council, T‑351/13, not published, EU:T:2016:616, paragraph 107).

156    In addition, in so far as the applicants refer, in the context of that argument, to the method applied by the Commission in recital 802 of the contested implementing regulation, consisting in adapting the exchange rate for the provision of capital in order to take account of the devaluation of the Egyptian Pound, it is sufficient to note that, unlike in relation to the provision of land for less than adequate remuneration where it had to adjust the exchange rate of a purchase made five years previously, the Commission was able to follow the method used by Jushi in its financial statements.

157    Consequently, the third complaint and the second part of the third plea in law must be rejected, as must the third plea in law in its entirety.

D.      The fourth plea in law, alleging infringement of Article 3(1)(a)(ii) and (2) and Article 5 of the basic anti-subsidy regulation

158    The applicants submit that the Commission was wrong to find that the Government of Egypt had foregone revenue for imported materials used by Jushi to produce the GFR sold to Hengshi and that this revenue foregone had conferred a benefit on Jushi, in so far as Jushi would not in any event have had to pay customs duties on those materials regardless of whether it fell under the legal regime of the SCZone or under the generally applicable Egyptian law.

159    As regards the duty drawback system, the Commission is required to follow a three-step test in order to assess the difference between customs duties which should have been paid under domestic law and those which were actually paid under the duty drawback scheme. In the present case, the tax situation with which it is legitimate to compare for the determination of the benchmark must thus be that of a company in Egypt which is not located within the SCZone, so that no duty drawback is applicable thereto, and not, as the Commission contends, that of two entities located within the SCZone. Thus, even if Jushi had been subject to the generally applicable law in Egypt, no customs duties would be incurred by Jushi for its sales to Hengshi since, for companies located outside the SCZone, sales to that zone are treated as export sales and, as a result, the customs duties incurred are subsequently reimbursed.

160    Moreover, the Government of Egypt is free to set up a waiver of customs duties or to create economic zones which do not follow the general legal framework applied to companies in Egypt. Furthermore, in the present case, even if the Government of Egypt had put in place a functioning duty drawback system, there is no difference between what those authorities should have collected from Jushi and what they actually collected, since in both cases no customs duties were due.

161    The Commission, supported by the intervener, disputes those arguments.

162    Article 3(1)(a)(ii) of the basic anti-subsidy regulation provides as follows:

‘[A subsidy shall be deemed to exist if:] government revenue that is otherwise due is for[e]gone or not collected (for example, fiscal incentives such as tax credits). In this regard, the exemption of an exported product from duties or taxes borne by the like product when destined for domestic consumption, or the remission of such duties or taxes in amounts not in excess of those which have been accrued, shall not be deemed to be a subsidy, provided that such an exemption is granted in accordance with the provisions of Annexes I, II and III;’

163    As is apparent from Part II of Annex III to that regulation, in order to determine whether an excess payment has occurred, the Commission is to verify that the monitoring and verification procedures accompanying that payment exist and are actually applied. If not, it may find that there is a subsidy.

164    In order to determine government revenue otherwise due that has been foregone or that has not been collected, the WTO Appellate Body considered, in paragraph 812 of the report in the case ‘United States – Measures Affecting Trade in Large Civil Aircraft (second complaint)’ (WT/DS 353/AB/R), that the identification of circumstances in which government revenue that is otherwise due is foregone requires a comparison between the tax treatment that applies to the alleged subsidy recipients and the tax treatment of comparable income of comparably situated taxpayers.

165    The parties essentially argue about what the comparable situation is in this case. According to the applicants, the situation concerned is that of an undertaking established outside the SCZone which sells products composed of imported materials to an undertaking in the SCZone, such as Hengshi. According to the Commission, the situation concerned is, by contrast, that of an undertaking established in the SCZone, such as Jushi, which sells such products to an undertaking established outside the SCZone.

166    As is apparent from recitals 904, 910 and 913 of the contested implementing regulation, according to Article 42 of Law No 83/2002, supplies, spare parts, and any other material or components imported from overseas are to be exempt from taxes and duties as long as they are allocated to the production of goods or services for the licensed activity within the SCZone. On the other hand, all taxes and duties need to be paid for any products released into the domestic market outside of the SCZone. The Commission also found that there was no effective and proper duty drawback system in place and that the special zone in which the applicants were located was not a standard export-processing zone, and was also different from other special free zones existing within Egypt. According to the Commission, it was a unique and hybrid kind of special zone in which the applicable laws and regulations did not appear to be applied.

167    In the present case, Jushi enjoyed the exemption from customs duties provided for by Law No 83/2002 in respect of imported materials used for the production of GFR sold to Hengshi, which is established in the SCZone and sells its GFF for export. However, under that law, if GFR had been marketed on the domestic market instead of being used or exported from the SCZone, Jushi would have had to pay the corresponding customs duties. That is particularly so in the case of an undertaking located in the SCZone which sells products containing imported materials that have benefited from exemption from customs duties to another undertaking outside the SETC-Zone, on the domestic market.

168    It follows that the only comparable situation for the purpose of determining whether Jushi received a benefit is precisely that taken into consideration by the Commission, that is to say, that of an undertaking established, like Jushi, in the SCZone which sells products containing materials that have benefited from an exemption from customs duties to an undertaking established outside the SCZone.

169    The Commission was therefore right to find, in the light of that comparison, that the Government of Egypt had foregone revenue on imports of materials used by Jushi for the production of GFR sold to Hengshi.

170    Furthermore, as was noted in paragraph 166 above, the Commission also found in the contested implementing regulation that the Government of Egypt did not, either before or during the investigation period, have an effective monitoring and verification framework for the collection of customs duties in the SCZone. In that regard, the applicants merely claim that that system had been set up at the end of 2016 and that the Egyptian authorities had several years to establish it. However, as the Commission rightly pointed out at the hearing and as is indeed apparent from the basic anti-subsidy regulation, and in particular from Annex III, the Commission must examine the existence and effectiveness of the drawback scheme at the time that it carries out its anti-subsidy investigation.

171    Having regard to the foregoing, the fourth plea must be rejected.

E.      The fifth plea, alleging infringement of Article 3(2) and Article 4(2)(c) of the basic anti-subsidy regulation

172    The applicants submit that the Commission committed a manifest error of assessment in concluding that the tax treatment of foreign exchange losses resulting from the devaluation of the Egyptian Pound in 2016 constituted a specific subsidy which de facto created a substantial benefit for a limited number of companies in Egypt, namely companies that were export-oriented and operated their business almost entirely in foreign currencies such as USD or EUR.

173    Both companies which are export-oriented and companies which operate solely on the Egyptian market could benefit equally from the tax treatment concerned, and deduct from their taxable income losses caused by the effects of the Egyptian Pound devaluation, in so far as they have liabilities in foreign currencies. By stating that companies which are export oriented benefited disproportionately from that tax treatment, the Commission in fact considered that the benefit resulted from the Egyptian Pound devaluation, which is, however, by definition, not a countervailable subsidy scheme.

174    The Commission, supported by the intervener, disputes those arguments.

175    It should be noted, as a preliminary point, that the applicants’ arguments are based essentially on the fact that, first, that measure cannot be regarded as a subsidy since that benefit in fact derives from the devaluation of the Egyptian Pound and, second, that measure does not confer a de facto specific benefit on certain undertakings, since all Egyptian undertakings which have liabilities in foreign currencies may benefit from the tax treatment of foreign exchange losses.

176    As regards the first argument, it should be noted that the Commission did not consider that the tax treatment in itself constituted a subsidy capable of being the subject of a countervailing measure. On the contrary, it stated, as is apparent from recital 861 of the contested implementing regulation, that, although that rule was meant to offset the negative effects of the devaluation of the Egyptian currency, it de facto created a substantial benefit for a limited number of companies in Egypt, that is to say for companies that were export oriented and operated their business almost entirely in foreign currencies, in so far as this particular category of companies did not incur any actual loss as a consequence of the devaluation of the Egyptian Pound, but could benefit from the special accounting standard issued by the Government of Egypt for tax purposes.

177    As regards the second argument, the applicants merely submit, in general terms, that the tax treatment in question benefited all undertakings with liabilities in foreign currencies and not only those which are export-oriented, without adducing any evidence that might render implausible the factual assessments made by the Commission in the contested implementing regulation, in particular in recital 862 thereof, and in the pleadings lodged in the present proceedings. The applicants do not call into question the figures presented by the Commission in its written pleadings, which show to what extent they were able to benefit from the tax treatment in question and they do not explain whether that treatment actually enabled them to make good any actual losses caused by the devaluation of the Egyptian Pound. More specifically, the Commission noted, in the context of its investigation, that the net profit declared in Jushi’s audited financial statements showed a positive amount [confidential], whereas the company’s tax return indicated a negative net taxable amount [confidential]. Similarly, Hengshi’s audited financial statements showed a positive amount [confidential], whereas the company’s tax return indicated a lower net taxable amount [confidential].

178    Moreover, the applicants do not dispute the Commission’s finding in recital 863 of the contested implementing regulation that, although that measure was temporary and limited only to transactions affected at the time of the devaluation, they still deducted, during the investigation period, substantial amounts from their taxable income under realised and unrealised foreign exchange differences.

179    In the light of the foregoing, the fifth plea must be rejected.

F.      The sixth plea, alleging infringement of Article 1(1), Article 2(d) and Article 8(1), (2) and (5) of the basic anti-subsidy regulation

180    This plea is divided into three parts. The applicants submit, in essence, first, that, by determining Jushi’s export prices, in particular of its related companies in the European Union, in order to calculate the undercutting margin on the basis of Article 2(9) of the basic anti-dumping regulation applied by analogy, the Commission infringed Article 2(d) of the basic anti-subsidy regulation. Second, by relying on that reconstructed export price to determine the undercutting margin, the Commission committed a manifest error of assessment infringing Article 1(1), Article 2(d) and Article 8(1) and (2) of the basic anti-subsidy regulation. Third, the Commission’s manifest error of assessment in its undercutting margin determination vitiates its causation analysis by an infringement of Article 1(1) and Article 8(5) of the basic anti-subsidy regulation.

181    The Commission, supported by the intervener, disputes not only the merits of this plea, but also contends, as a preliminary point, that the plea is ineffective.

182    In that latter regard, the Commission maintains that, even if the General Court were to find that the Commission had erred in using, by analogy, Article 2(9) of the basic anti-dumping regulation for the calculation of the applicants’ price undercutting, in particular for Jushi’s related companies in the European Union, such an error would not be capable of leading to the annulment of the contested implementing regulation. The Commission produces in the rejoinder new calculations which it maintains show that, even taking into consideration the values invoiced by Jushi’s related companies in the European Union without making adjustments on the basis of Article 2(9) of the basic anti-dumping regulation, there would be very little change in the price undercutting margin ([confidential] as opposed to 31.5%).

183    When questioned by the Court at the hearing on the Commission’s new calculations produced in the rejoinder, the applicants stated that those calculations had no impact on the level of the countervailing duties imposed by the contested implementing regulation.

184    According to settled case-law, the Courts of the European Union may dismiss a plea or complaint as ineffective where they find that that plea or complaint is not capable, in the event that it is well founded, of leading to the annulment sought (judgments of 21 September 2000, EFMA v Council, C‑46/98 P, EU:C:2000:474, paragraph 38, and of 19 November 2009, Michail v Commission, T‑50/08 P, EU:T:2009:457, paragraph 59).

185    In the present case, the applicants have admitted, as is apparent from paragraph 183 above, that, even if the Commission had used, in order to determine the price undercutting margin, the calculations referred to in paragraph 182 above, which are based on Jushi’s export price without the adjustments made on the basis of Article 2(9) of the basic anti-dumping regulation, there would be no impact on the level of countervailing duties imposed by the contested implementing regulation.

186    It follows that, even if the applicants were justified in challenging the method used by the Commission to establish Jushi’s export price in the context of calculating the price undercutting margin, the use of the calculations referred to in paragraph 182 above would not, in any event, have led to different countervailing duties. The alleged error cannot therefore justify annulment of the contested implementing regulation in so far as it concerns them.

187    Consequently, the sixth plea in law must be rejected as ineffective, without there being any need to analyse the merits of the three parts raised by the applicants in support of that plea.

188    In the light of the foregoing, the action must be dismissed in its entirety.

 IV. Costs

189    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 applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.

190    Pursuant to Article 138(3) of the Rules of Procedure, Tech-Fab Europe eV is to bear its own costs.

On those grounds,

THE GENERAL COURT (First Chamber, Extended Composition)

hereby:

1.      Dismisses the action;

2.      Orders Hengshi Egypt Fiberglass Fabrics SAE and Jushi Egypt for Fiberglass Industry SAE to bear their own costs and to pay those incurred by the European Commission;

3.      Orders Tech-Fab Europe eV to bear its own costs.

Kanninen Jaeger Półtorak

Porchia Stancu

Delivered in open court in Luxembourg on 1 March 2023.

E. Coulon S. Papasavvas

Registrar President

*      Language of the case: English.

1      This judgment is published in extract form.

2 Confidential data omitted.