CJEU, 5th chamber, May 4, 2017, No C-239/15 P

THE COURT (Fifth Chamber),

1 By its appeal, RFA International LP ('RFA') seeks to have set aside the judgment of the General Court of the European Union of 17 March 2015, RFA International v Commission (T-466/12, 'the judgment under appeal', EU:T:2015:151), by which that Court dismissed its action for partial annulment of Commission Decisions C(2012) 5577 final, C(2012) 5585 final, C(2012) 5588 final, C(2012) 5595 final, C(2012) 5596 final, C(2012) 5598 final and C(2012) 5611 final of 10 August 2012 concerning its applications for a refund of anti-dumping duties paid on imports of ferrosilicon originating in Russia ('the decisions at issue').

Legal context

International law

2 By Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1), the Council of the European Union approved the Agreement establishing the World Trade Organisation (WTO), signed in Marrakesh on 15 April 1994, and also the agreements in Annexes 1 to 3 to that agreement, which include the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (OJ 1994 L 336, p. 103) ('the Anti-Dumping Agreement').

3 Articles 2.3 and 2.4 of the Anti-Dumping Agreement provide as follows:

'2.3 In cases where there is no export price or where it appears to the authorities concerned that the export price is unreliable because of 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 not resold in the condition as imported, on such reasonable basis as the authorities may determine.

2.4 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, normally at the ex-factory level, and in respect of sales made at as nearly as possible the same time. Due allowance shall be made in each case, on its merits, for differences which affect price comparability, including differences in conditions and terms of sale, taxation, levels of trade, quantities, physical characteristics, and any other differences which are also demonstrated to affect price comparability. ... In the cases referred to in paragraph 3, allowances for costs, including duties and taxes, incurred between importation and resale, and for profits accruing, should also be made. If in these cases price comparability has been affected, the authorities shall establish the normal value at a level of trade equivalent to the level of trade of the constructed export price, or shall make due allowance as warranted under this paragraph. The authorities shall indicate to the parties in question what information is necessary to ensure a fair comparison and shall not impose an unreasonable burden of proof on those parties.'

EU law

4 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'), provides in Article 2(8) thereof as follows:

'The export price shall be the price actually paid or payable for the product when sold for export from the exporting country to the [European Union].'

5 Article 2(9) of the Basic Regulation is worded as follows:

'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 [Union] 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 [Union], 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.'

6 Article 2(10) of the Basic Regulation is worded as follows:

'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. ...'

Background to the dispute and the decisions at issue

7 RFA is a limited partnership established in Canada. Acting through its Swiss subsidiary, it purchases, resells, imports and warehouses, within the Union, ferrosilicon originating in Russia produced by two sister companies established in Russia, namely, Chelyabinsk Electrometallurgical Integrated Plant OAO ('CHEMK') and Kuzneckie Ferrosplavy OAO ('KF').

8 On 25 February 2008, following a complaint lodged by the Comité de liaison des industries de ferroalliages (Euroalliages), the Council adopted Regulation (EC) No 172/2008 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ferrosilicon originating in the People's Republic of China, Egypt, Kazakhstan, the former Yugoslav Republic of Macedonia and Russia (OJ 2008 L 55, p. 6). Pursuant to Article 1 of that regulation, the rate of the definitive anti-dumping duty applicable to the net, free-at-Community-frontier price, before duty, was set at 22.7% for the products manufactured by CHEMK and KF.

9 Between 30 July 2009 and 10 December 2010, RFA submitted to the Commission a number of applications for refund of the anti-dumping duty paid during the period from 7 January 2009 to 10 December 2010. The investigation in respect of the refund requested covered the period from 1 October 2008 to 30 September 2010 and was divided by the Commission into two parts. The first part related to the period from 1 October 2008 to 30 September 2009 and the second the period from 1 October 2009 to 30 September 2010. By the decisions at issue, the Commission granted the refund applications for the first investigation period and rejected the refund applications for the second investigation period.

10 In those decisions, the Commission applied Article 2(9) of the Basic Regulation, taking the view that the appellant performed all the functions relating to the importation into the European Union of the ferrosilicon produced by CHEMK and KF. Accordingly, the export price was constructed on the basis of the price at which the imported products were first resold to an independent buyer, adjusted for all costs incurred between importation and resale, profit margin, set at 6%, and a reasonable margin for selling, general and administrative costs.

The procedure before the General Court and the judgment under appeal

11 By application lodged at the Registry of the General Court on 23 October 2012, RFA brought an action for the partial annulment of the decisions at issue, relying on two pleas in law in that regard. RFA addresses only the General Court's response to the first of those pleas in its appeal.

12 At paragraphs 51 to 56 of the judgment under appeal, the General Court rejected the second part of the first plea. It considered, in the first place, that as the conditions for the application of Article 2(9) of the Basic Regulation were met, the existence or otherwise of a single economic entity was irrelevant for the purpose of the application of that provision, although it did not rule out the possibility that such an economic entity could, in some circumstances, have an impact on the detailed rules for the application of Article 2(9).

13 In the second place, the General Court found, in paragraphs 57 to 70 of the judgment under appeal, that RFA had failed to establish, in the present case, that the adjustments made under Article 2(9) of the Basic Regulation were excessive.

14 Lastly, in paragraphs 74 and 75 of the judgment under appeal, the General Court found that the first part of the first plea had to be rejected as it was directed against findings that did not appear in the decisions at issue. In any event, the fact, if established, that the appellant formed a single economic entity with CHEMK and KF had, according to the General Court, no impact on the legality of the import price as set in the decisions at issue, as that company had not established that the adjustments made by the Commission were excessive.

Forms of order sought by the parties before the Court of Justice

15 RFA claims that the Court should:

- set aside the judgment under appeal;

- give final judgment on the pleas raised in the action for annulment, if the state of the proceedings so permits, and partially annul the decisions at issue;

- in the alternative, refer the case for reconsideration to the General Court; and

- order the Commission to pay the costs incurred in the proceedings before the Court of Justice and the General Court.

16 The Commission contends that the Court should:

- dismiss the appeal as inadmissible and, in any event, unfounded; and

- order RFA to pay the costs.

The appeal

17 RFA relies on three grounds of appeal.

Admissibility of the appeal as a whole

18 The Commission contends that the appeal is inadmissible as a whole in that, first, it does not satisfy the requirements as to precision laid down in the second subparagraph of Article 256(1) TFEU, the first subparagraph of Article 58 of the Statute of the Court of Justice of the European Union and Articles 168(1)(d) and 169(2) of the Rules of Procedure of the Court of Justice. Second, the appeal is inadmissible in so far as it contests questions of fact.

19 In the present case, while it is true that the structure of the arguments put forward by RFA is at times lacking in rigour, the Court nonetheless finds that the appeal, as a whole, identifies the points in the grounds of the judgment under appeal which are contested, as well as the legal arguments enabling the Court to carry out its review of legality.

20 In those circumstances, the appeal is admissible. That said, that conclusion is without prejudice to the examination of the admissibility of certain arguments considered individually (judgment of 14 June 2016, Marchiani v Parliament, C-566/14 P, EU:C:2016:437, paragraph 34).

The first ground of appeal

Arguments of the parties

21 By the first part of its first ground of appeal, RFA submits that, in paragraphs 51 to 56 of the judgment under appeal, the General Court misconstrued its argument at first instance. RFA maintains that it did not dispute the applicability of Article 2(9) of the Basic Regulation as such but the level of adjustments made to the export price under that provision in the light of the existence of a single economic entity composed of RFA, CHEMK and KF and of the judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP (C-191/09 P and C-200/09 P, EU:C:2012:78). In particular, in view of the existence of such a single economic entity, only the selling, general and administrative costs relating to importation and post-importation functions should have been taken into account for the purposes of the adjustments to be made under that provision.

22 By the second part of its first ground of appeal, RFA submits that the General Court did not summarise some of the arguments relied on by the Commission in the defence. Thus, by depriving the Court of Justice of all the information necessary to enable it to review the legality of the judgment under appeal, the General Court infringed the appellant's right to effective judicial protection.

23 The Commission contends that the first ground of appeal is inadmissible or, in any event, unfounded.

Findings of the Court

24 With regard to the first ground of appeal, it should be noted that, in paragraphs 51 to 56 of the judgment under appeal, the General Court simply endorsed the Commission's reasoning as regards the requirements to be fulfilled for the application of Article 2(9) of the Basic Regulation and for adjustments under that provision. Since those requirements were met in the present case, there would be no purpose, according to the General Court, in examining the effect, in that regard, of the alleged existence of a single economic entity or of the judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP (C-191/09 P and C-200/19 P, EU:C:2012:78).

25 Accordingly, the General Court analysed, in the paragraphs of the judgment under appeal contested by RFA in its first ground of appeal, a different question from that of the level of adjustments to be made pursuant to Article 2(9) of the Basic Regulation. The latter question was in fact examined, but in paragraphs 57 to 70 of the judgment, which are not disputed in the first ground of appeal.

26 In those circumstances, the first part of the first ground of appeal must be rejected.

27 With regard to the second part of the first ground of appeal, it is sufficient to note that, in the context of an appeal, the purpose of review by the Court of Justice is, inter alia, to consider whether the General Court responded to the requisite legal standard to all the arguments raised by the appellant (judgment of 15 April 2010, Gualtieri v Commission, C-485/08 P, EU:C:2010:188, paragraph 40), not to consider the level of detail with which the defendant's arguments were summarised.

28 As a consequence, the second part of the first ground of appeal must be rejected.

29 Having regard to the above considerations, the first ground of appeal must be rejected in its entirety.

The second ground of appeal

Arguments of the parties

30 By its second ground of appeal, RFA submits, in the first place, that the General Court erred in law in paragraphs 44, 58 and 61to 64 of the judgment under appeal by taking the view that it fell to the applicant to prove that the adjustments made pursuant to Article 2(9) of the Basic Regulation were excessive. It follows from paragraph 61 of the judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP (C-191/09 P and C-200/19 P, EU:C:2012:78) that, where a single economic entity is entailed, it is for the Commission to show that the level of such adjustments was appropriate.

31 According to RFA, the burden of proof as allocated in paragraph 61 of that judgment is applicable to the present dispute, even though that case concerned the adjustments provided for in Article 2(10) of the Basic Regulation, not those provide for in Article 2(9). The wording of Article 2(4) of the Anti-dumping Agreement lends support for the argument that a rule common to both those situations should be adopted for the allocation of the burden of proof.

32 In the second place, RFA maintains that the General Court contradicted itself, in paragraphs 59, 60, 62, 65 and 67 of the judgment under appeal, by, on the one hand, requiring that company to produce precise calculations as to the allocation of costs and profit relating to its import and export functions and, on the other, endorsing the Commission's reasoning that, in the present case, there was no need to distinguish between those functions because the existence of a single economic entity was irrelevant for the purpose of calculating the export price.

33 The Commission contends that the second ground of appeal is inadmissible or, in any event, unfounded.

Findings of the Court

34 By its second ground of appeal. RFA submits, first, that the General Court erred in law as regards the allocation of the burden of proof for the purpose of the adjustments provided for in Article 2(9) of the Basic Regulation.

35 The method laid down in that provision for calculating the export price is applicable, inter alia, 'where it appears that the export price is unreliable because of an association ... between the exporter and the importer or a third party'. In such a situation 'adjustment for all costs ... incurred between importation and resale, and for profits accruing, shall be made so as to establish a reliable export price, at the [Union] frontier level'.

36 Such adjustments are made automatically by the EU institutions pursuant to the provisions of Article 2(9) of the Basic Regulation (see, by analogy, judgment of 7 May 1987, Minebea v Council, 260/84, EU:C:1987:206, paragraph 43).

37 In that context, the Court rejected, in paragraph 32 of the judgment of 5 October 1988, Canon and Others v Council (277/85 and 300/85, EU:C:1988:467), the argument that there should be a reduction of the adjustments made to the export price, in particular with regard to the profit margin, on the ground that the company concerned had provided no evidence to justify the percentage which it claimed should be applied.

38 It follows from the considerations set out in paragraphs 35 to 37 above that it is for the EU institutions to make, on their own initiative, the adjustments provided for by Article 2(9) of the Basic Regulation if the requirements for the application of that provision are met. On the other hand, it is for the applicant to furnish evidence in support of its contention that the adjustments thus established are incorrect.

39 In the present case, it was not disputed before the General Court that the requirements for the application of Article 2(9) of the Basic Regulation were met. Accordingly, the General Court did not err in law in finding that it was for RFA to submit detailed evidence to show that the level of adjustments made was excessive.

40 As regards RFA's argument that it should be accepted that the allocation of the burden of proof established in the judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP (C-191/09 P and C-200/09 P, EU:C:2012:78) is applicable by analogy, it is true that, according to paragraph 61 of that judgment, where the Council and the Commission consider that it is appropriate to apply a downward adjustment of the export price, on the ground that a sales company affiliated to a producer carries out functions comparable to those of an agent working on a commission basis, it is the responsibility of those institutions to adduce at the very least consistent evidence showing that that condition is fulfilled.

41 Nonetheless, it should be noted, first, that that judgment concerned adjustments to be made in connection with the fair comparison required, under Article 2(10) of the Basic Regulation, between the export price and the normal value of the goods concerned, once both those prices have been established.

42 Next, it is apparent from the wording and broad scheme of Article 2(10) of that regulation that an adjustment to the export price or to the normal value may be made only to take account of differences in relation to factors which affect both prices, such as differences in commission paid in respect of the sales under consideration, and which thus affect their comparability, in order to ensure that the comparison is made at the same level of trade (judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C-191/09 P and C-200/09 P, EU:C:2012:78, paragraph 53).

43 Lastly, the Court has held that adjustments made under Article 2(10) of the Basic Regulation are different, as regards both their purpose and the conditions under which they are applied, from adjustments made in the construction of the export price. Whereas the latter adjustments are intended to determine the export price corresponding to normal trading conditions, the adjustments made under Article 2(10) are intended to rectify the export price or the normal value already calculated pursuant to the rules laid down in Article 2(3) to (9) of the regulation. The adjustments provided for by Article 2(10) of the basic regulation are made by reference to objective factors corresponding to the particular features of each market (domestic or export), and have a varying impact on conditions and terms of sale, thus affecting price comparability (see, by analogy, judgment of 7 May 1987, Minebea v Council, 260/84, EU:C:1987:206, paragraphs 41 and 42).

44 In view of the differences between the adjustments made in connection with the construction of the export price and those made in the context of Article 2(10) of the Basic Regulation, RFA's argument concerning the application, by analogy, of the allocation of the burden of proof established in paragraph 61 of the judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP (C-191/09 P and C-200/09 P, EU:C:2012:78) cannot call into question the conclusion in paragraph 39 above.

45 In the second place, the argument that the judgment under appeal is vitiated by contradictory reasoning is based on a misreading of that judgment. The General Court did not claim that the distinction to be made between import and export functions and their related costs was wholly insignificant; it simply stated, in particular in paragraph 62 of the judgment under appeal, that that distinction, even if warranted, does not reverse the burden of proof whereby it is for the applicant to show that the adjustments made by the Commission were excessive.

46 In the light of all the foregoing considerations, the second ground of appeal must be rejected.

The third ground of appeal

Arguments of the parties

47 RFA submits, first, that paragraphs 74 to 78 of the judgment under appeal are vitiated by an error of law in so far as the General Court based the conclusions in those paragraphs on findings, considered by RFA to be incorrect, which form the subject matter of the first two grounds of appeal. Second, according to RFA, the General Court erred in law in finding that the decisions at issue had left the question as to the existence of a single economic entity in abeyance. In those decisions, the Commission discounted the existence of such an entity by adopting, by implication, the position that it had assumed in the parallel anti-dumping investigation concerning the same companies.

48 The Commission contends that the third ground of appeal must be rejected as inadmissible or, in any event, unfounded.

Findings of the Court

49 Since the third ground of appeal is based on alleged errors of law in the findings which are challenged in the first two grounds of appeal, it must be disregarded, as those grounds were rejected, respectively, in paragraphs 29 and 46 above.

50 As regards the argument alleging that an implied conclusion was drawn concerning the absence of a single economic entity, it is sufficient to note that, in the absence of any conclusion concerning that point in the decisions at issue, the General Court did not err in law in paragraph 74 of the judgment under appeal by rejecting the arguments put forward by RFA in that regard at first instance.

51 As a consequence, the third ground of appeal must be rejected.

52 Since none of the grounds of appeal raised by RFA has been upheld, the appeal must be dismissed in its entirety.

Costs

53 In accordance Article 184(2) of its Rules of Procedure, where the appeal is unfounded, the Court of Justice is to make a decision as to costs. Under Article 138(1) of the those rules, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings.

54 Since the Commission has applied for costs and RFA has been unsuccessful in its submissions, the latter must be ordered to pay the costs.

On those grounds, the Court (Fifth Chamber) hereby:

1. Dismisses the appeal;

2. Orders RFA International LP to pay the costs.