GC, 7th chamber, June 25, 2015, No T-26/12

THE GENERAL COURT (Seventh Chamber),

Legal context

1 Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51, 'the basic regulation') constitutes the basic anti-dumping legislation.

2 Article 1(1) and (2) of the basic regulation provides as follows:

'1. An anti-dumping duty may be applied to any dumped product whose release for free circulation in the Community causes injury.

2. A product is to be considered as being dumped if its export price to the Community is less than a comparable price for the like product, in the ordinary course of trade, as established for the exporting country.'

3 Article 2(8) to (10) of the basic regulation provides:

'8. The export price shall be the price actually paid or payable for the product when sold for export from the exporting country to the Community.

9. In cases where there is no export price or where it appears that the export price is unreliable because of an association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported products are first resold to an independent buyer, or, if the products are not resold to an independent buyer, or are not resold in the condition in which they were imported, on any reasonable basis.

In these cases, adjustment for all costs, including duties and taxes, incurred between importation and resale, and for profits accruing, shall be made so as to establish a reliable export price, at the Community frontier level.

The items for which adjustment shall be made shall include those normally borne by an importer but paid by any party, either inside or outside the Community, which appears to be associated or to have a compensatory arrangement with the importer or exporter, including usual transport, insurance, handling, loading and ancillary costs; customs duties, any anti-dumping duties, and other taxes payable in the importing country by reason of the importation or sale of the goods; and a reasonable margin for selling, general and administrative costs and profit.

...

10. A fair comparison shall be made between the export price and the normal value. This comparison shall be made at the same level of trade and in respect of sales made at, as closely as possible, the same time and with due account taken of other differences which affect price comparability. Where the normal value and the export price as established are not on such a comparable basis due allowance, in the form of adjustments, shall be made in each case, on its merits, for differences in factors which are claimed, and demonstrated, to affect prices and price comparability. Any duplication when making adjustments shall be avoided, in particular in relation to discounts, rebates, quantities and level of trade. When the specified conditions are met, the factors for which adjustment can be made are listed as follows:

...

(i) Commissions

An adjustment shall be made for differences in commissions paid in respect of the sales under consideration.

The term "commissions" shall be understood to include the mark-up received by a trader of the product or the like product if the functions of such a trader are similar to those of an agent working on a commission basis.'

Background to the dispute

4 The applicant, PT Perindustrian dan Perdagangan Musim Semi Mas (PT Musim Mas) ('PTMM'), is a company established in Medan (Indonesia) which produces, inter alia, fatty alcohols ('the product concerned'). The applicant markets and sells its products in the European Union through two related companies that are established in Singapore, in this case, Inter-Continental Oils & Fats Pte Ltd ('ICOF S'), a subsidiary that is wholly controlled by the same shareholders as those of PTMM, and Besdale Trading Pte Ltd. Imports into the European Union are carried out by the subsidiary ICOF Europe GmbH ('ICOF E'), established in Germany and wholly owned by ICOF S.

5 Following a complaint lodged on 30 June 2010 by two EU producers, Cognis GmbH and Sasol Olefins & Surfactants GmbH, the European Commission initiated an anti-dumping procedure concerning imports into the European Union of certain fatty alcohols and their blends originating in India, Indonesia and Malaysia, pursuant to Article 5 of the basic regulation.

6 The investigation of dumping and injury covered the period from 1 January 2009 to 30 June 2010 ('the investigation period').

7 The applicant cooperated with the Commission during the investigation. The Commission sent the anti-dumping questionnaire after the initiation of the investigation. The applicant submitted its reply to the questionnaire on 4 October 2010.

8 By Regulation (EU) No 446/2011 of 10 May 2011 imposing a provisional anti-dumping duty on imports of certain fatty alcohols and their blends originating in India, Indonesia and Malaysia, (OJ 2011 L 122, p. 47, 'the provisional regulation'), the Commission imposed a provisional anti-dumping duty on imports of certain fatty alcohols and their blends originating in India, Indonesia and Malaysia.

9 On 11 May 2011, the Commission informed the applicant of the essential facts and considerations on the basis of which provisional anti-dumping measures had been imposed ('the provisional findings'). The dumping margin calculations, which margin is based on a comparison between the normal value and the export price to the European Union, were explained in Annex 2 to those provisional findings.

10 The Commission found that the export price to the European Union was unreliable because that was the price set by the applicant for its related importer company in the European Union, ICOF E. The export price was therefore constructed on the basis of the first resale price invoiced to independent customers in the European Union, in accordance with Article 2(9) of the basic regulation, by deducting from that value all costs incurred between importation and resale and a profit margin of 7.5% for ICOF E.

11 In order to carry out a fair comparison between the normal value and the export price, a downward adjustment to the export price was made in order to take account of selling, general and administrative costs and a commission paid to ICOF S on sales to the European Union, in accordance with Article 2(10)(i) of the basic regulation.

12 As regards the normal value, the Commission provisionally rejected the applicant's request that the normal value be adjusted in respect of selling, general and administrative costs, and in respect of ICOF S' profit relating to sales on the Indonesian domestic market.

13 By letter of 10 June 2011, the applicant submitted observations to the Commission on the provisional findings. First of all, it submitted that the applicant and ICOF S formed a single economic entity and that, consequently, there was no need to carry out any downward adjustments to the export price in respect of commissions. Next, it complained that the Commission had incorrectly deducted from the export price a double profit margin within the PTMM group by deducting a hypothetical profit margin of 7.5% in respect of ICOF E when constructing the export price and a commission for ICOF S in order to make that price comparable to the normal value. Lastly, the applicant stated that if an adjustment had to be made at the level of the export price, a similar adjustment ought to have been made to the normal value in order to ensure sufficient price comparability, since ICOF S also handles the sales on the domestic market.

14 On 26 July 2011, the Commission sent the applicant a letter setting out the principal facts and considerations on the basis of which it proposed to recommend the imposition of definitive measures and granted the applicant a period within which to submit observations.

15 On 8 November 2011, the Council of the European Union adopted Implementing Regulation (EU) No 1138/2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain fatty alcohols and their blends originating in India, Indonesia and Malaysia (OJ 2011 L 293, p. 1, 'the contested regulation').

16 As regards exports to the European Union through ICOF E, the profit margin used to construct the export price pursuant to Article 2(9) of the basic regulation was reduced to 5%, as was suggested by the applicant in its observations on the provisional findings.

17 As regards the comparison between the normal value and the export price, the Council maintained a downward adjustment to the export price in respect of a commission paid to ICOF S on sales to the European Union invoiced by ICOF S, in accordance with Article 2(10)(i) of the basic regulation, thereby rejecting the applicant's argument that the applicant and ICOF S formed a single entity in which ICOF S acted as an export department. Recital 31 of the contested regulation is worded as follows:

'Following provisional disclosure both Indonesian exporters pointed out that no adjustment should have been made for differences in commissions pursuant to Article 2(10)(i) [of the basic regulation] for sales via the respective related traders in a third country. Both companies argued that their production companies in Indonesia and the respective related traders in Singapore form a single economic entity and that the traders in the third country act as the export department of their related Indonesian companies. However, in both cases domestic sales, as well as some export sales to third countries, are invoiced directly by the manufacturer in Indonesia, and the traders in Singapore receive a specific commission. For one of the Indonesian companies this commission is mentioned in a contract covering only export sales. Moreover, the traders in the third country also sell products manufactured by other producers, in one case also from unrelated producers. Both related traders in Singapore therefore clearly have functions which are similar to those of an agent working on a commission basis. The claim is therefore rejected.'

18 In addition, the applicant's request that an identical adjustment to the normal value be made pursuant to Article 2(10)(i) of the basic regulation was rejected because the contract providing for the payment of a commission to ICOF S relates only to export sales and because domestic sales are invoiced directly by the applicant. Recital 35 of the contested regulation is worded as follows:

'The company further claimed that, in case the export price were to be adjusted for the commission of the related trader in the third country pursuant to Article 2(10)(i) [of the basic regulation], an identical adjustment to the normal value should be made, since this trader would also coordinate domestic sales. However, the written contract between the trader and the producer in Indonesia only covers export sales. Moreover, domestic sales are invoiced by the company in Indonesia. The claim is therefore rejected.'

19 By judgment of 21 January 2012 in Council and Commission v Interpipe Niko Tube and Interpipe NTRP (C 191/09 P and C 200/09 P, ECR, EU:C:2012:78), the Court of Justice upheld the judgment of 10 March 2009 in Interpipe Niko Tube and Interpipe NTRP v Council (T 249/06, ECR, EU:T:2009:62, 'the judgment in Interpipe') concerning the application of Article 2(10) of the basic regulation.

20 Following that judgment of the Court of Justice, the Commission informed the applicant, on 13 June 2012, of its intention to amend the contested regulation in order to amend the anti-dumping duty imposed on PT Ecogreen Oleochemicals, Ecogreen Oleochemicals (Singapore) Pte. Ltd and Ecogreen Oleochemicals GmbH (together, 'Ecogreen').

21 On 25 June 2012, the applicant submitted observations on the proposal to amend the contested regulation.

22 On 25 September 2012, the Commission confirmed to the applicant its intention to amend the contested regulation in respect of Ecogreen, as it regarded Ecogreen's position as similar to that of Interpipe, and rejected the applicant's request that the anti-dumping duty imposed on it also be recalculated, without adjustment pursuant to Article 2(10)(i) of the basic regulation.

23 On 11 December 2012, the Council adopted Implementing Regulation (EU) No 1241/2012 amending Implementing Regulation No 1138/2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain fatty alcohols and their blends originating in India, Indonesia and Malaysia (OJ 2012 L 352, p. 1). Pursuant to that regulation, the rates of anti-dumping duties applicable to Ecogreen were reduced to zero.

Procedure and forms of order sought

24 By application lodged at the Court Registry on 20 January 2012, the applicant brought the present action.

25 By document lodged at the Court Registry on 27 April 2012, Sasol Olefins & Surfactants GmbH and Sasol Germany GmbH (together, 'Sasol') applied for leave to intervene in support of the form of order sought by the Council.

26 By document lodged at the Court Registry on 4 May 2012, the Commission applied for leave to intervene in support of the form of order sought by the Council.

27 By order of the President of the Fourth Chamber of the Court of 18 June 2012, the Commission was granted leave to intervene.

28 By documents lodged at the Court Registry on 1 June, 2 July, 22 August and 19 December 2012, the applicant applied for certain information contained in the procedural documents to be treated as confidential in relation to Sasol.

29 By order of the President of the Fourth Chamber of 13 July 2012, Sasol was granted leave to intervene.

30 By document lodged at the Court Registry on 2 August and 31 October 2012, Sasol contested, in part, the applications for confidential treatment referred to above.

31 By order of the President of the Fourth Chamber of the Court of 30 April 2013, the applicant's application for confidential treatment was granted in part.

32 By letters of 13 September 2013 and 24 September 2014, by way of measures of organisation of procedure provided for in Article 64 of its Rules of Procedure, the Court put a question to the parties in writing and requested the applicant to lodge a document. The parties complied with those measures of organisation of procedure within the prescribed periods.

33 The parties presented oral argument and answered the questions put to them by the Court at the hearing on 11 December 2014.

34 At the hearing, the applicant adapted the form of order sought, so that its action also seeks the annulment of Implementing Regulation No 1241/2012.

35 Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Seventh Chamber, to which the present case was accordingly allocated.

36 The applicant claims that the Court should:

- annul Articles 1 and 2 of the contested regulation and Implementing Regulation No 1241/2012 in so far as they relate to the applicant;

- order the Council to pay the costs.

37 The Council, supported by the Commission and Sasol, contends that the Court should:

- dismiss the action;

- order the applicant to pay the costs.

Law

38 In support of its action, the applicant puts forward four pleas in law. The first plea in law alleges infringement of Article 2(10)(i) of the basic regulation. The second plea in law alleges infringement of the first subparagraph of Article 2(10) of the basic regulation. The third plea in law alleges breach of the principle of sound administration. The fourth plea in law alleges breach of the general principle of equality and non-discrimination.

The first plea in law, alleging infringement of Article 2(10)(i) of the basic regulation

39 The applicant breaks down its first plea in law into two parts. First, it submits that the Council made a manifest error of assessment and misused its powers by refusing to recognise the existence of a single economic entity between the applicant and ICOF S; according to the applicant, its existence precludes the application of Article 2(10)(i) of the basic regulation. Secondly, it submits that the Council has not adduced any convincing evidence proving that ICOF S carries out functions similar to those of an agent working on a commission basis.

The first part of the first plea in law: error of assessment by the Council in not recognising the existence of a single economic entity

40 The applicant claims that the applicant and ICOF S form a single economic entity and that the Council therefore made a manifest error of assessment and misused its powers in making the contested adjustment. The applicant states that the applicant and ICOF S are wholly controlled by the same shareholders and that ICOF S carries out the functions of an internal sales department in marketing the products and negotiating all sales. The applicant states that it signed invoices relating to sales in Indonesia and certain sales on other Asian markets only for tax reasons and for reasons related to the origin of the products, respectively. It claims therefore that the applicant's sales activity is complementary to ICOF S' sales functions.

41 The Council does not dispute that the applicant and ICOF S are both part of the same group and are controlled by the same entity. It contends however that the existence of common control does not preclude an adjustment being made under Article 2(10)(i) of the basic regulation. It is the functions of the related trader that matter. In the present case, various factors show that ICOF S carries out functions similar to those of an agent working on a commission basis and not those of an internal sales department.

42 As a preliminary point, it should be noted that the applicant submits that the institutions misused their powers by denying the existence of a single economic entity and by ignoring the facts that the applicant presented to them. However, at the hearing, in response to a question put by the Court, the applicant stated that that argument related to the principle of sound administration, which constitutes the subject-matter of the third plea in law. The allegation as to misuse of power raised by the applicant will therefore be dealt with from the perspective of that principle in the context of the third plea in law.

43 As to the substance, first of all, it is apparent from the case-law that a single economic entity exists where a producer entrusts tasks normally falling within the responsibilities of an internal sales department to a distribution company for its products which it controls economically (see, by analogy, judgments of 5 October 1988 in Brother Industries v Council, 250/85, ECR, EU:C:1988:464, paragraph 16, and 10 March 1992 in Matsushita Electric v Council, C 175/87, ECR, EU:C:1992:109, paragraph 12). Accordingly, taking the prices of the affiliated distributor into account avoids costs, which are clearly included in the sale price of a product when that sale is carried out by an integrated sales department in the producer's organisation, no longer being included where the same sales activity is carried out by a company which is legally distinct, even though economically controlled by the producer (see, by analogy, judgment of 10 March 1992 in Canon v Council, C 171/87, ECR, EU:C:1992:106, paragraphs 9 to 13).

44 Next, it should be noted that a single economic entity can exist even if the producer itself takes on a part of the sales functions complementary to the functions of the distribution company for its products (see, by analogy, judgment of 13 October 1993 in Matsushita Electric Industrial v Council, C 104/90, ECR, EU:C:1993:837, paragraph 14).

45 Lastly, it must be recalled that, in accordance with the case-law of the Court of Justice, if a party claims adjustments under Article 2(10) of the basic regulation in order to make the normal value and the export price comparable for the purpose of determining the dumping margin, that party must prove that its claim is justified (see, to that effect, judgments of 7 May 1987 in Nachi Fujikoshi v Council, 255/84, ECR, EU:C:1987:203, paragraph 33; Nippon Seiko v Council, 258/84, ECR, EU:C:1987:205, paragraph 45; and Minebea v Council, 260/84, ECR, EU:C:1987:206, paragraph 43).

46 Moreover, where the Council and the Commission consider that it is appropriate to apply a downward adjustment to the export price under Article 2(10)(i) of the basic regulation, it is for those institutions to prove, or at the very least to adduce evidence, that the conditions for the application of that provision are satisfied (see, to that effect, judgment in Council and Commission v Interpipe Niko Tube and Interpipe NTRP, cited in paragraph 19 above, EU:C:2012:78, paragraph 61).

47 In the light of those considerations, it should therefore be examined, in the context of the first part of the first plea in law, whether the institutions proved, or at the very least adduced evidence, that the applicant and ICOF S did not form a single economic entity.

48 It is apparent from the case-law cited in paragraph 43 above that although the existence of control by the producer over the related trader, or of control common to both of those companies, is a prerequisite for the existence of a single economic entity, such an entity can be found to exist only if the functions carried out by the related trader are similar to those of an internal sales department.

49 In the present case, the Council does not dispute the existence of control common to the applicant and ICOF S, but it concluded that those companies did not form a single entity on the basis of the functions carried out by ICOF S.

50 In this connection, it is apparent from recital 31 of the contested regulation that the Council based its conclusion, in particular, that ICOF S did not carry out the functions of an internal sales department, on three factors, namely, first, on the fact that ICOF S also sold products manufactured by other producers, including by unrelated producers; secondly, on the fact that the applicant paid ICOF S a commission, mentioned in a contract, only on the export sales made by ICOF S; and, thirdly, on the fact that the applicant invoiced directly domestic sales and some export sales to third countries.

51 In the first place, as regards the factor relating to sales of products manufactured by unrelated producers, first of all, the Court considers, as did the Council, that in order to assess whether a single economic entity exists, the general functions of the related trader must be taken into account, including its activities relating to products other than the product concerned. Such an approach thus makes it possible to take account of the economic reality of the relations between the producer and the related trader and thus to assess the function carried out by the latter within the group to which it belongs on the export market to the European Union. Accordingly, in order to determine whether a company carries out the functions of an internal export sales department within a group, the institutions should examine the overall functions carried out by that company in the marketing and export of the product concerned as well as of other products, both within the group and in its relations with independent third party producers.

52 Therefore, the Court must reject the applicant's argument that, in order to establish whether ICOF S constitutes an internal sales department of the group to which the applicant belongs, only the functions carried out by ICOF S in respect of the sale of the product under investigation are relevant.

53 Furthermore, the proportion of sales made by the trader relating to products from unrelated producers must be regarded as an important factor for the purposes of determining whether that trader forms a single economic entity with the related producer. Thus, if the trader achieves a large part of its turnover from the sale of products from unrelated undertakings, that may constitute evidence that the functions of that trader are not those of an internal sales department.

54 In the present case, it must be pointed out that ICOF S' overall activities were based to a significant extent on supplies from unrelated undertakings. Over 50% of ICOF S' total sales in 2009, of more than USD 1.4 billion, related to products from independent third party producers. ICOF S cannot therefore be regarded as being in a position of dependency in relation to the group to which it is related.

55 It is true that the applicant submits that that figure is incorrect in that it is based on data relating to ICOF S' audited accounts for the financial year ended 30 June 2009, that is, before the investigation period. For the investigation period, on the basis of ICOF S' audited accounts for the financial year ended 30 June 2010, the applicant states that 67.18% of purchases by ICOF S were made from related companies.

56 However, ICOF S' annual report for 2010 was not brought to the attention of the institutions. In reply to the request made by the Commission in the anti-dumping questionnaire to provide, before 20 September 2010, financial statements for the two previous years, the applicant provided the annual reports for 2008 and 2009 only. Therefore, the applicant cannot complain that the Council relied on that data when adopting the contested regulation.

57 In any event, the Court considers that the proportion of ICOF S' turnover stemming from its activities with unrelated undertakings remains significant, including in 2010. This demonstrates that ICOF S is a very large trader, whose economic activity is capable of being carried out independently of the applicant, since it relates to a significant extent to products from unrelated producers. Consequently, even though the sales figures in respect of those products fluctuate from year to year, only one trend concerning ICOF S' activities emerges, which trend seems to be at variance with the existence of a single economic entity.

58 Accordingly, the significance of ICOF S' activities regarding independent third party producers constitutes sound evidence that the functions of that company were not those of an internal sales department.

59 In the second place, as regards the factor identified by the Council relating to the contract between the applicant and ICOF S that provides for the payment of commissions to the latter, the applicant states that those commissions are intended to finance ICOF S' general marketing and sales activities and are therefore part of a wider compensatory arrangement between companies in the same group. Even though paid only in respect of export sales for which ICOF S issues an invoice, it is claimed that those commissions in fact cover costs incurred by that company in respect of all sales, including those in respect of which it does not formally receive commissions.

60 The Court considers that, first, the existence of a written contract constitutes a relevant factor for the purposes of determining whether the applicant and ICOF S form a single economic entity and is apt to distinguish those two companies from other related companies between which any payment of commissions is based only on a series of verbal agreements. The existence of such a contract thus demonstrates that the relationship between the applicant and ICOF S is organised on the basis of normal commercial conditions.

61 Secondly, it must be stated that the contract concluded between the applicant and ICOF S, entitled 'sale and purchase agreement' contains various provisions that are difficult to reconcile with the notion that those companies form a single economic entity.

62 Thus, it is, inter alia, stipulated in clause 7.3 of the contract in question that nothing in that contract creates any partnership between the parties and that the vendor, that is to say, the applicant, is in no way responsible or liable for the obligations contracted by the purchaser, ICOF S. It is, moreover, clearly stated in clause 12 that the contract will come to an end if a party commits any breach. The Council was therefore reasonably entitled to regard such lack of solidarity as constituting evidence that the applicant and ICOF S did not form a single economic entity.

63 Furthermore, as the Council and Sasol stated at the hearing, the inclusion in the contract of an arbitration clause and provisions governing communications between the applicant and ICOF S and their obligations in the event of any change of name or address constituted further evidence that they did not form a single economic entity.

64 Thirdly, as regards the applicant's claim that the commissions paid under the contract constitute merely a redistribution of profits within the single economic entity formed by the applicant and ICOF S and are intended to finance all of ICOF S' activities, including those relating to domestic sales in respect of which it does not formally receive commissions, it must be pointed out that there is nothing stipulated in the contract to support such a claim. Indeed, clause 7.1 of that contract expressly states that it constitutes the entire agreement between the parties in respect of the product concerned. There is no basis, therefore, for considering that the commissions paid to ICOF S on export sales under the contract also cover the costs incurred by ICOF S in respect of the domestic sales that it may negotiate.

65 Fourthly, as regards the applicant's argument that a written agreement is necessary in the context of related companies established in different countries for the purposes of governing transfer pricing between related parties and complying with the recommendations of the Organisation for Economic Co-operation and Development (OECD) on transfer pricing, it must be pointed out that those recommendations are intended to improve transparency in transfer pricing. It must be stated, however, that the arrangement relied on by the applicant, whereby ICOF S' activities on the Indonesian market are allegedly financed also by means of commissions paid on export sales is in no way evidenced by the terms of the contract between the applicant and ICOF S. The Court considers, therefore, that the applicant cannot justify the use of a contract such as that concluded with ICOF S in the light of the OECD's recommendations, while at the same time relying on the existence of an arrangement that is totally inconsistent with the transparency objectives set by those recommendations.

66 Accordingly, it must be concluded that the contract existing between the applicant and ICOF S, as drafted in the present case, constitutes sound evidence that the functions carried out by ICOF S are not those of an internal sales department and that, moreover, none of the arguments raised by the applicant are such as to affect that conclusion.

67 In the third place, as regards the factor identified by the Council relating to the direct sales made by the applicant, the applicant claims that it acts merely as a 'paper contracting party' for the invoicing of certain export sales because certain countries, including the People's Republic of China and Japan, would not accept the Indonesian origin of the products were they to be invoiced by ICOF S. Relying on the judgment in Interpipe, cited in paragraph 19 above (EU:T:2009:62), it submits that its sales functions are merely complementary and cannot therefore call in question the fact that ICOF S, which negotiates all sales, constitutes the PTMM group's internal sales department.

68 It is true that the organisation of the applicant's sales thus presented by the applicant is not such as to preclude the existence of a single economic entity. It is not inconceivable that, within such an entity, a related company carries out the functions of an internal sales department by organising and negotiating the producer's sales without issuing directly all of the invoices relating to those sales. Various reasons may explain the 'on paper' involvement of the producer, including that put forward by the applicant, who explains that its involvement is for the sole purpose of guaranteeing the origin of the products.

69 However, the larger the proportion of sales invoiced directly by the producer, the more difficult it is to maintain that that producer's related trader carries out the functions of an internal sales department. In the present case, it is apparent from the documents before the Court that the applicant acted as the contracting party in respect of 27.08% of export sales. The volume of export sales in respect of which the applicant issued an invoice directly is therefore much higher than that at issue in the case that gave rise to the judgment in Interpipe, cited in paragraph 19 above (EU:T:2009:62). In the Interpipe case, direct sales invoiced by the producer represented only 8% of the total volume of sales to the European Union and they had been made only to new Member States during a transitional period (judgment in Interpipe, cited in paragraph 19 above, EU:T:2009:62, paragraph 185).

70 In the light of those circumstances, the Court considers that although the level of export sales invoiced by the applicant is not in itself such as to rule out the possibility that ICOF S carries out the functions of an internal sales department, it nevertheless constitutes an indication that supports the first two factors and therefore contributes to establishing that there is no single economic entity.

71 In the light of all the foregoing, it must be concluded that the Council did not make an error of assessment in finding that the applicant and ICOF S did not form a single economic entity since, taken together, the three factors identified by the Council constitute a body of convergent evidence that demonstrates that ICOF S does not carry out the functions of an internal sales department.

72 The first part of the first plea in law must therefore be rejected as unfounded.

The second part of the first plea in law: error of assessment by the Council in concluding that the conditions for the application of Article 2(10)(i) of the basic regulation were satisfied

73 By the second part of its first plea in law, the applicant claims that the Council made a manifest error of assessment in that it failed to prove to the requisite legal standard that ICOF S' functions were similar to those of an agent working on a commission basis.

74 It should be noted, first of all, that the fact that there is no single economic entity between the applicant and ICOF S does not necessarily mean that the conditions for the application of Article 2(10)(i) of the basic regulation are satisfied.

75 Furthermore, it should be recalled that, under Article 2(10)(i) of the basic regulation, an adjustment may be made for differences in commissions paid in respect of the sales under consideration. The second sentence of that provision states that the term 'commissions' is to be understood to include the mark-up received by a trader of the product or the like product if the functions of such a trader are similar to those of an agent working on a commission basis.

76 The rationale for the insertion of that second sentence in Article 2(10)(i) of the basic regulation was to clarify, in line with the consistent practice of the institutions, that such adjustments were also to be made if the parties did not act on the basis of a principal-agent relationship, but achieved the same economic result by acting as buyer and seller (judgment of 7 February 2013 in EuroChem MCC v Council, T 459/08, EU:T:2013:66, paragraph 132).

77 Accordingly, Article 2(10)(i) of the basic regulation allows an adjustment to be made not only for differences in commissions paid in respect of the sales under consideration, but also for the mark-up received by traders of the product if they carry out functions which are similar to those of an agent working on a commission basis (judgment of 18 March 2009 in Shanghai Excell M&E Enterprise and Shanghai Adeptech Precision v Council, T 299/05, ECR, EU:T:2009:72, paragraph 281).

78 In the present case, the Council explains the decision to adjust downward the applicant's export price on the basis of the second sentence of Article 2(10)(i) of the basic regulation. It is therefore necessary to examine whether the conditions for the application of that provision were satisfied.

79 The Court finds that the Council was fully entitled to regard the functions carried out by ICOF S as being similar to those of an agent working on a commission basis.

80 It is apparent from the applicant's arguments that ICOF S markets the products, takes care of contacts with existing and potential customers, solicits and receives the orders and negotiates the sales. Before finalising any sale, ICOF S [confidential]. (1) ICOF S then issues the invoices and arranges freight and insurance for customers. It also provides the after-sales service and assumes the customer default risk.

81 As regards, in particular, the customer default risk borne by ICOF S, which the applicant submits is incompatible with the existence of a commercial agency relationship, it should be recalled that the second sentence of Article 2(10)(i) of the basic regulation allows an adjustment to be made in respect of the mark-up received even if the parties do not act on the basis of a principal-agent relationship, but achieve the same result by acting as seller and buyer.

82 In the present case, the applicant and ICOF S do indeed act as seller and buyer. Thus, ICOF S purchases the product concerned from the applicant, in accordance with the sale and purchase agreement examined above, and subsequently resells it, for which it receives payment of a commission in the form of a fixed mark-up of 5%.

83 As the Council stated at the hearing, where the parties act as seller and buyer, the transfer of ownership between those parties necessarily implies a transfer of the risks related to the product thus sold.

84 Accordingly, the Court considers that the fact that ICOF S bears certain risks in no way precludes the application of Article 2(10)(i) of the basic regulation since that provision does not cover only commercial agency relationships in their strict sense, but also allows an adjustment to be made where the trader carries out functions similar to those of an agent working on a commission basis, as in the present case.

85 Accordingly, the second part of the first plea in law must be rejected in so far as the Council did not make a manifest error of assessment in concluding that the conditions for the application of Article 2(10)(i) of the basic regulation were satisfied.

86 In the light of all the foregoing, the first plea in law must therefore be rejected in its entirety as unfounded.

The second plea in law, alleging infringement of the first subparagraph of Article 2(10) of the basic regulation

87 By its second plea in law, the applicant claims that the Council did not make a fair comparison between the export price and the normal value, in breach of the first subparagraph of Article 2(10) of the basic regulation. It breaks down that plea in law into two parts. In the first place, it submits that by making the contested adjustment, the Council caused an asymmetry because it artificially deflated the export price in comparison with the normal value. It submits that if an adjustment had to be made at the level of the export price, a similar adjustment ought to have been made to the normal value. In the second place, the applicant claims that the Council deducted from the export price an excessive double hypothetical margin, of 10% in total, in respect of, first, ICOF E's profits, pursuant to Article 2(9) of the basic regulation, and secondly, in respect of ICOF S' profits, pursuant to Article 2(10)(i) of that regulation.

88 In the context of that second plea in law, the applicant also complains, first, that the Council ignored the information and evidence provided to it, which resulted in an insufficient statement of reasons with regard to the contested adjustment and, secondly, that the Council made a discriminatory adjustment with regard to the applicant. Those arguments relate, however, to the subject-matter of the third and fourth pleas in law, respectively, and will therefore be examined in the context of those pleas in law.

The first part of the second plea in law: failure to make a fair comparison between the export price and the normal value

89 The applicant puts forward two arguments in the context of the first part of the second plea in law. First, it claims that the Council established an asymmetry between the normal value and the export price in the absence of adjustment for commissions paid. Secondly, it submits that if the Council considered that an adjustment had to be made at the level of the export price, a similar adjustment ought also to have been made to the normal value. The applicant claims in this connection that the Council did not take into account its explanations that ICOF S also handles sales on the domestic market and that the commissions paid on export sales in fact cover all of the costs borne by ICOF S, including those relating to sales on the domestic market.

90 As regards the applicant's first argument, relating to the absence of symmetry between the normal value and the export price, according to the case-law, it is apparent from both the wording and the scheme of Article 2(10) of the basic regulation that an adjustment to the export price or the normal value may only be made to take account of differences in factors which affect the prices and therefore their comparability (judgment of 21 November 2002 in Kundan and Tata v Council, T 88/98, ECR, EU:T:2002:280, paragraph 94). In other words, the rationale for an adjustment is to re-establish the symmetry between the normal value and the export price (judgment in Interpipe, cited in paragraph 19 above, EU:T:2009:62, paragraph 194).

91 Thus, if the adjustment has been validly made, that means that it has re-established the symmetry between normal value and export price. By contrast, if the adjustment has not been validly made, that means that it has maintained or created an asymmetry between the normal value and the export price, affecting, therefore, the requirement set out in the first subparagraph of Article 2(10) of the basic regulation (judgment in Interpipe, cited in paragraph 19 above, EU:T:2009:62, paragraph 195).

92 In the present case, it should be recalled that the first plea in law, alleging the existence of a manifest error of assessment in the application of Article 2(10)(i) of the basic regulation has been rejected as unfounded (see paragraphs 39 to 86 above). The Court has thus found that ICOF S did not form a single economic entity with the applicant, but carried out functions similar to those of an agent working on a commission basis, which justified, therefore, the making of an adjustment on the basis of that provision. It follows that it must be concluded that, by making the adjustment in respect of a commission paid to ICOF S on export sales, the Council re-established the symmetry between normal value and export price and did not infringe, therefore, the first subparagraph of Article 2(10) of the basic regulation.

93 As regards the applicant's second argument, that the Council ought to have made a similar adjustment to the normal value since ICOF S also coordinates sales on the domestic market, the Court considers that it must be rejected for two reasons.

94 First, in contrast to the export price, the normal value does not include any margin or commission intended for ICOF S. The contract between the applicant and ICOF S provides for the payment of a commission only on certain export sales. ICOF S is therefore not entitled to any payment in respect of sales made on the domestic market, so it is possible to take the view that the price on that domestic market, namely the normal value, is not comparable to the export price. The Council was therefore fully entitled to consider that, for the purposes of a fair comparison between the normal value and the export price, an adjustment had to be made to the export price alone.

95 Secondly, it should be recalled that, in accordance with the case-law referred to in paragraph 45 above, where a producer claims that the normal value should be adjusted downward, it is for that operator to indicate and to establish that the conditions for granting such an adjustment are satisfied (judgment in Council and Commission v Interpipe Niko Tube and Interpipe NTRP, cited in paragraph 19 above, EU:C:2012:78, paragraph 61).

96 Accordingly, in order to justify a downward adjustment to the normal value under Article 2(10)(i) of the basic regulation, it is for the applicant to establish that ICOF S carries out functions similar to those of an agent working on a commission basis on the domestic market.

97 In this connection, it should be stated that the applicant merely claims that the costs relating to all sales are borne by ICOF S, which sales are financed by commission revenue that that company receives on export sales, and that it is for tax reasons alone that there cannot be a contract between the applicant and ICOF S in respect of domestic sales. There is no evidence, however, to support those claims. As stated in paragraph 64 above, the contract between the applicant and ICOF S, presented as the only instrument governing the relations between those two parties, does not contain any provision or indication capable of substantiating the applicant's arguments.

98 Accordingly, it must be concluded that the applicant has not established that an adjustment ought to have been made to the normal value under Article 2(10)(i) of the basic regulation for the purpose of making a fair comparison between that value and the export price.

99 The first part of the second plea in law must therefore be rejected as unfounded.

The second part of the second plea in law: deduction of an excessive double margin from the export price

100 By the second part of its second plea in law, the applicant claims, first, that by deducting a first hypothetical margin of 5% in respect of ICOF E's profits, pursuant to Article 2(9) of the basic regulation, and a second hypothetical margin of 5% in respect of ICOF S' profits, the Council infringed the first subparagraph of Article 2(10) of the basic regulation, which requires the institutions to avoid any duplication when making adjustments. Secondly, it submits that that double hypothetical margin, of 10% in total, deducted from the export price, is excessive.

101 In the first place, as regards the double adjustment made to the export price, it should be observed that the adjustments made under Article 2(10)(a) to (k) of the basic regulation differ, as regards their objective, from the adjustments made in the construction of the export price. Thus, whereas the latter adjustments are intended to determine the export price corresponding to normal trading conditions, the adjustments made under Article 2(10)(a) to (k) of the basic regulation are intended to adjust the export price or the normal value already calculated pursuant to the rules laid down in Article 2(1) to (9) of that regulation. Those adjustments are made by reference to objective factors, which correspond to the particular features of each market, domestic and export, and which have a varying impact on conditions and terms of sale, thus affecting price comparability (judgment in Nachi Fujikoshi v Council, cited in paragraph 45 above, EU:C:1987:203, paragraphs 31 and 32).

102 Accordingly, there is nothing to preclude a profit margin being deducted from the export price, in accordance with Article 2(9) of the basic regulation, and an adjustment to that price from subsequently being made under Article 2(10)(i) of that regulation, if the conditions for the application of those provisions are satisfied. These are two different adjustments, the successive application of which is in no way contrary to the first subparagraph of Article 2(10) of the basic regulation, which is intended solely to avoid duplication of the adjustments made under that provision.

103 In the present case, first, it should be stated that the adjustment made when constructing the export price is not in itself contested. Secondly, the Court has concluded, after analysing the first plea in law, that the adjustment made by the Council in respect of a commission paid to ICOF S on export sales was justified.

104 The Court therefore considers that the Council did not infringe Article 2(10)(i) of the basic regulation in deducting from the export price, first, a hypothetical margin in respect of ICOF E's profits pursuant to Article 2(9) of the basic regulation, and, secondly, a margin in respect of ICOF S' profits pursuant to Article 2(10)(i) of the basic regulation.

105 In the second place, as regards the applicant's claim that the double margin thus deducted is excessive, the Court considers that it is unfounded.

106 First, as regards the profit margin used by the Council in order to construct the export price pursuant to Article 2(9) of the basic regulation, it should be recalled that that margin was set at 5% following the observations submitted by the applicant in that connection and in accordance with those observations. The applicant cannot claim, therefore, that that margin is excessive.

107 Secondly, as regards the margin of 5% deducted from the export price pursuant to Article 2(10)(i) of the basic regulation, that margin corresponds to the mark-up received by ICOF S on export sales, as established in the contract concluded between ICOF S and the applicant. Accordingly, that margin cannot be regarded as excessive.

108 In the light of the independent nature of the adjustments thus made, both of which were justified and not excessive, it cannot therefore be argued that the Council artificially reduced the export price by applying successively the provisions in question.

109 Furthermore, as the Council states, the institutions can be regarded as having adopted a reasonable approach, in that they did not make an adjustment to the export price to take account of the profit made by Besdale Trading Pte on the export sales in question. Even though Besdale Trading Pte, which also acts as an intermediary in respect of export sales to the European Union (see paragraph 4 above), made a profit of 15.13% during the investigation period, the Council found that because of the particular nature of that company's role, no additional adjustment was to be made.

110 In the light of all the foregoing, the second part of the second plea in law must therefore be rejected as unfounded and, consequently, the second plea in law must be rejected in its entirety.

The third plea in law, alleging breach of the principle of sound administration

111 By its third plea in law, the applicant submits that the Council ignored the information and evidence submitted to the Commission during the investigation period concerning, in particular, ICOF S' essential role in the sales structure, the PTMM group's marketing and the real costs and mark-ups of that structure in respect of sales on the domestic market and export sales, and without providing reasons or rebutting the facts in question.

112 According to the case-law, where the EU institutions have a broad power of appraisal, respect for the rights guaranteed by the EU legal order in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case (judgments of 21 November 1991 in Technische Universität München, C 269/90, ECR, EU:C:1991:438, paragraph 14; 13 July 2006 in Shandong Reipu Biochemicals v Council, T 413/03, ECR, EU:T:2006:211, paragraph 63; and 23 September 2009 in Dongguan Nanzha Leco Stationery v Council, T 296/06, EU:T:2009:347, paragraph 58).

113 However, the institutions are not obliged to adopt a position on all the arguments relied on by the parties concerned. It is sufficient if they set out the facts and the legal considerations having decisive importance in the context of the decision (see, to that effect, judgment of 15 June 2005 in Corsica Ferries France v Commission, T 349/03, ECR, EU:T:2005:221, paragraph 64). Accordingly, they cannot be criticised for not replying specifically to each argument relied on by the applicant or for not defining their position on matters which they did not deem relevant to the individual case (see, to that effect, judgments of 2 April 1998 in Commission v Sytraval and Brink's France, C 367/95 P, ECR, EU:C:1998:154, paragraph 64, and 14 July 2011 in Arkema France v Commission, T 189/06, ECR, EU:T:2011:377, paragraph 96).

114 In the present case, the Court considers that it is apparent from recitals 28 to 35 of the contested regulation that the institutions did examine and reply to the principal arguments raised by the applicant contesting the adjustment made pursuant to Article 2(10)(i) of the basic regulation and that they provided sufficient reasons for that adjustment.

115 First, the Council defined its position on the arguments relied on by the applicant concerning the existence of a single economic entity between the applicant and ICOF S by setting out, in recital 31 of the contested regulation, the various factors, which, according to the Council, demonstrate that ICOF S does not carry out the functions of an internal sales department, but rather functions similar to those of an agent working on a commission basis.

116 It should be pointed out in this connection that the applicant's arguments are contradictory in that, on the one hand, the applicant complains that the Council did not examine the fact that ICOF S carries out the functions of an internal sales department, and, on the other, it maintains, in the same paragraph of its arguments, that the institutions set out their position and rejected the application of the single economic entity concept.

117 It is true that the Council did not reply expressly to the applicant's arguments that the applicant invoices the sales on the Indonesian market for tax reasons and that the commissions paid to ICOF S are intended to cover all the costs of that company, including those incurred for the marketing of the products on the domestic market. However, it is apparent from the documents in the case that the Council found, during the administrative procedure, that the explanations put forward by the applicant were unsubstantiated and, in any event, irrelevant. The Council cannot therefore be criticised for not replying specifically to those arguments during the investigation procedure or in the contested regulation.

118 Secondly, as regards the argument that the Council ought to have made a similar adjustment to the normal value, it should be stated that the Council examined and rejected that argument in recital 35 of the contested regulation, explaining that the written contract between the applicant and its trader concerned export sales only.

119 Thirdly, as regards the observations submitted by the applicant on the double margin that was deducted from the export price, the Council stated clearly, in recital 34 of the contested regulation, that the deductions made in respect of the profit for the related importer and in respect of the commission paid to the related trader had been taken into account for different purposes and were deducted separately, and it therefore expressly rejected the applicant's claim.

120 Furthermore, it should be recalled that the Council took into account and accepted the applicant's claim that the profit margin used for the construction of the export price pursuant to Article 2(9) of the basic regulation was excessive. Initially set at 7.5% in the provisional findings, that margin was in fact reduced to 5% when the contested regulation was adopted, as recital 29 of that regulation states (see paragraphs 10 and 16 above).

121 Accordingly, it must be concluded that all the relevant aspects of the present case were examined and that the Council did not therefore fail to observe the principle of sound administration.

122 The third plea in law must therefore be rejected as unfounded.

The fourth plea in law, alleging breach of the general principle of equality and non-discrimination

123 By its fourth plea in law, the applicant claims that it was discriminated against on account of its tax structure and its corporate structure as against other companies covered by the investigation, which bear similar costs, but which were not subject to adjustments.

124 Furthermore, in the reply, the applicant submits that by applying the principles flowing from the judgment in Interpipe, cited in paragraph 19 above (EU:T:2009:62), to its Indonesian competitors, namely Ecogreen, and by refusing to apply them to the applicant, the institutions are discriminating against it, in breach of Article 9(5) of the basic regulation, the general principle of equal treatment and the Charter of Fundamental Rights of the European Union. The applicant submits that its situation is comparable to that of Interpipe and Ecogreen. Its dumping margin ought, therefore, to be recalculated.

125 At the hearing, moreover, the applicant requested that it be permitted to adapt the form of order sought, so that its action also seeks the annulment of Implementing Regulation No 1241/2012, by which the Council cancelled the anti-dumping duty applicable to Ecogreen.

126 The Council contends that the applicant's allegations are vague and imprecise. Furthermore, in the rejoinder, the Council states that the new claims of discrimination relied on by the applicant in the reply are inadmissible because the legality of an act of the European Union must be reviewed in light of the facts and law as they stood at the time when the measure was adopted.

127 The Council and the Commission also opposed, at the hearing, the applicant's request to adapt the form of order sought, on the grounds that that request was out of time.

128 It should be recalled, first of all, that according to settled case-law, the general principle of equal treatment and non-discrimination, enshrined in Articles 20 and 21 of the Charter of Fundamental Rights, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (judgments of 14 April 2005 in Belgium v Commission, C 110/03, ECR, EU:C:2005:223, paragraph 71, and 17 December 2008 in HEG and Graphite India v Council, T 462/04, ECR, EU:T:2008:586, paragraph 35).

129 Furthermore, Article 9(5) of the basic regulation states that an anti-dumping duty is to be imposed in the appropriate amounts in each case, on a non-discriminatory basis, on imports of a product from all sources found to be dumped and causing injury, except for imports from those sources from which undertakings under the terms of that regulation have been accepted.

130 In the present case, first, as regards the argument that the contested adjustment constitutes unequal treatment with regard to the applicant as against the other producers and exporters covered by the same investigation, it must be pointed out that the applicant does not refer to any specific evidence in this connection. Indeed, it has not been specified in any way, either in the pleadings or at the hearing, in what respect or in comparison with which company the applicant has been discriminated against, and it is therefore not possible for the Court to examine whether the applicant's situation is comparable to that of another operator who, it is claimed, received more favourable treatment.

131 Secondly, as regards the applicant's claim that the cancellation of the anti-dumping duty in respect of Ecogreen but not in respect of the applicant following the judgment in Interpipe, cited in paragraph 19 above (EU:T:2009:62), is discriminatory, it must be stated that it is unfounded inasmuch as the applicant's situation is not comparable to that of Interpipe, nor to that of Ecogreen.

132 After examining the first plea in law, the Court concluded that the Council had not made a manifest error of assessment in adjusting the applicant's export price. That examination was carried out in the light of the case-law and, in particular, of the judgment in Interpipe, cited in paragraph 19 above (EU:T:2009:62). The arguments put forward by the Council have therefore been held to justify a conclusion different from that reached by the Court in the judgment in Interpipe and therefore to make it possible to distinguish the applicant's situation from that of Interpipe.

133 Furthermore, Implementing Regulation No 1241/2012, by which Ecogreen's dumping margin was recalculated without being adjusted pursuant to Article 2(10)(i) of the basic regulation, sets out clearly the points that distinguish that company from the applicant.

134 Thus, first of all, the volume of direct export sales made by the applicant is much higher than that of the sales invoiced by Ecogreen, which volume did not exceed 5% of the volume of that company's export sales.

135 Next, in contrast to Ecogreen's related trader, ICOF S' activities are based to a significant extent on supplies from unrelated undertakings. That factor was considered, in the analysis of the first plea in law, to be proof, or at least sound evidence that ICOF S' functions were not those of an internal sales department (see paragraphs 59 to 66 above).

136 Lastly, the applicant is bound to ICOF S by a written contract under which ICOF S is entitled to a commission on export sales. It must be pointed out that no such contract exists between Ecogreen and its related trader. The existence of a formal contract between two related companies, such as that between the applicant and ICOF S, constitutes an indication of the nature of the relationship between those two companies and of the functions carried out by each of them in the framework of that relationship. The Council was therefore fully entitled to find that that factor made it possible to distinguish the applicant's situation from that of Ecogreen as regards the application of Article 2(10)(i) of the basic regulation.

137 Accordingly, even though the applicant's export sales' structure displays some similarities to those of Interpipe and Ecogreen, ICOF S' functions are not comparable to those carried out by the related traders of Interpipe and Ecogreen. The applicant's situation therefore justified different treatment in the context of adjustments to the export price.

138 The fourth plea in law must therefore be rejected as unfounded, since the Council was not in breach of the principle of equality and non-discrimination with regard to the applicant, and it is not necessary to rule on the admissibility of the applicant's arguments (see, by analogy, judgment of 26 February 2002 in Council v Boehringer, C 23/00 P, ECR, EU:C:2002:118, paragraph 52). The action must therefore be dismissed in its entirety.

Costs

139 Under Article 87(2) 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 applicant has been unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by the Council.

140 In accordance with the first subparagraph of Article 87(4) of the Rules of Procedure, the institutions which have intervened in the proceedings are to bear their own costs. Consequently, the Commission, which intervened in support of the form of order sought by the Council, must bear its own costs.

141 Lastly, Sasol Olefins & Surfactants and Sasol Germany must bear their own costs, in accordance with the third subparagraph of Article 87(4) of the Rules of Procedure.

On those grounds,

THE GENERAL COURT (Seventh Chamber)

hereby:

1. Dismisses the action;

2. Orders PT Perindustrian dan Perdagangan Musim Semi Mas (PT Musim Mas) to bear its own costs and to pay those incurred by the Council of the European Union;

3. Orders the European Commission to bear its own costs;

4. Orders Sasol Olefins & Surfactants GmbH and Sasol Germany GmbH to bear their own costs.