CJEU, 7e chamber, April 2, 2020, No T-383/17

"

THE GENERAL COURT (Seventh Chamber),

Background to the dispute

1 On 18 February 2016, following a complaint, the European Commission published a notice of initiation of an anti-dumping proceeding concerning imports of certain lightweight thermal paper originating in South Korea (OJ 2016 C 62, p. 7).

2 The product to be investigated corresponded to lightweight thermal paper weighing 65 gr/m2 or less, presented in rolls of a width of 20 cm or more, a weight (including the paper) of 50 kg or more and a diameter (including the paper) of 40 cm or more (‘jumbo rolls’), with or without a base coat on one or both sides, coated with a thermosensitive substance (that is, a mixture of dye and a developer that react and form an image when heat is applied) on one or both sides and with or without a top coat, originating in South Korea, falling within CN codes ex 4809 90 00, ex 4811 90 00, ex 4816 90 00 and ex 4823 90 85 (‘the product concerned’).

3 The investigation of dumping and injury covered the period from 1 January 2015 to 31 December 2015 (‘the investigation period’). The examination of trends relevant for the determination of injury covered the period from 1 January 2012 to the end of the investigation period.

4 The applicant, Hansol Paper Co. Ltd, established in South Korea, is active in the production and export of the product concerned, in particular towards the European Union. Its sales of that product were made, in the Union, during the investigation period, to independent customers and to a related trader, Hansol Europe BV (‘Hansol Europe’), and to four related converters, namely Schades Ltd, Schades Nordic A/S, Heipa technische Papiere GmbH (‘Heipa’) and R+S Group GmbH (‘R+S’). The activity of the related converters was in particular the conversion of that product into new products, called ‘small rolls’, sold in the European Union to independent or related customers.

5 Another Korean exporting producer, Hansol Artone Co. Ltd (‘Artone’), which was related to the applicant, cooperated with the anti-dumping investigation. It merged with the applicant on 3 March 2017.

6 On 18 February 2016, the applicant received the anti-dumping questionnaire intended for exporting producers of the product concerned.

7 In the light of the absence or limited number of sales of the product concerned by some of the companies related to it to independent customers in the Union, on 19 February 2016, the applicant requested that Schades Nordic, Heipa and R+S be exempted from the obligation to complete the questionnaire for the companies related to the exporting producer, included in Annex I to the anti-dumping questionnaire.

8 On 23 February 2016, the Commission accepted that request, while reserving the right to make other requests for information.

9 On 7 March 2016, after examining certain information provided by the applicant, the Commission decided that Schades Nordic, Heipa and R+S should reply to sections F and G, relating to production costs and profitability, and complete Annex I to the anti-dumping questionnaire.

10 On 8 March 2016, the applicant requested the intervention of the Hearing Officer in relation to the Commission’s requests addressed to Schades Nordic, Heipa and to R+S. In particular, it pointed out the heavy workload required in order to supply data relating to sales and costs in relation to the small rolls, which are not concerned by the procedure, and the irrelevance of that request in so far as it was not possible to determine whether the small rolls had been manufactured from its jumbo rolls or from other sources.

11 On 10 March 2016, a hearing was held with the Commission, chaired by the Hearing Officer.

12 On 16 and 17 March 2016, the Commission visited Schades’ premises.

13 On 21 March 2016, the Commission informed the applicant that the requests for information sent on 7 March 2016 were henceforth limited to Schades.

14 On 15 April 2016, the Commission acknowledged receipt of the responses of the applicant and Artone to the anti-dumping questionnaires and the responses of Hansol Europe and of Schades to Annex I to the anti-dumping questionnaire.

15 Between 15 June and 26 August 2016, the Commission carried out visits and checks at the premises of the applicant, Artone, Hansol Europe and Schades.

16 On 16 November 2016, the Commission adopted Implementing Regulation (EU) 2016/2005 imposing a provisional anti-dumping duty on imports of certain lightweight thermal paper originating in the Republic of Korea (OJ 2016 L 310, p. 1).

17 On 17 November 2016, an information document containing the Commission’s preliminary findings was sent to the applicant. The latter submitted its observations on those preliminary findings on 8 December 2016.

18 On 13 December 2016, at the request of the applicant, a hearing was held with the Commission, chaired by the Hearing Officer.

19 On 17 February 2017, a final disclosure document reproducing the Commission’s final conclusions was sent to the applicant. The latter presented its observations on that document on 27 February 2017.

20 On 2 and 22 March 2017, at the request of the applicant, hearings were held with the Commission, chaired by the Hearing Officer.

21 On 20 and 23 March 2017, the Commission submitted, respectively, additional final disclosure and revised final disclosure, which were subject to observations on the part of the applicant.

22 On 2 May 2017, the Commission adopted Implementing Regulation (EU) 2017/763 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain lightweight thermal paper originating in the Republic of Korea (OJ 2017 L 114, p. 3; ‘the contested implementing regulation’).

23 The contested implementing regulation is based inter alia on Article 9(4) of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21; ‘the basic regulation’).

24 Article 1 of the contested implementing regulation provides for the imposition of a definitive anti-dumping duty on imports of the product concerned, in the form of a fixed amount of EUR 104.46 per tonne, net.

Procedure and forms of order sought

25 By application lodged at the Registry of the General Court on 20 June 2017, the applicant brought the present action.

26 On 22 September 2017, the Commission lodged its defence.

27 By order of 27 November 2017, the President of the Seventh Chamber of the Court granted the European Thermal Paper Association (ETPA) leave to intervene in support of the form of order sought by the Commission in this case.

28 By order of 16 October 2018, Hansol Paper v Commission (T‑383/17, not published, EU:T:2018:742), the President of the Seventh Chamber of the Court partially granted applications for confidential treatment made by the applicant in respect of certain passages of the pleadings of the main parties.

29 By letters of 14 November 2018, in the context of measures of organisation of procedure pursuant to Article 89(3) of the Rules of Procedure, the Court requested the parties to answer a number of questions. The parties complied with that request within the required deadline, namely 23 November 2018 for the applicant’s response and 6 December 2018 for the responses of the Commission and the intervener.

30 By order of 28 February 2019, Hansol Paper v Commission (T‑383/17, not published, EU:T:2019:146), the President of the Seventh Chamber of the Court partially granted applications for confidential treatment made by the applicant in respect of certain passages of the applicant’s response of 23 November 2018 and of the Commission’s response of 6 December 2018 to the measures of organisation of procedure.

31 As one member of the Seventh Chamber was prevented from sitting, on 20 May 2019 the President of the Court, acting pursuant to Article 17(2) of the Rules of Procedure, designated another Judge to complete the Chamber.

32 The parties presented oral argument and answered the questions put by the Court at the hearing on 5 September 2019.

33 The applicant claims that the Court should:

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

– order the Commission to pay the costs;

– order the intervening party to bear its own costs.

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

– dismiss the action as inadmissible;

– in the alternative, dismiss the action as unfounded;

– order the applicant to pay the costs.

Law

Admissibility of the action

35 The Commission contends that the application does not satisfy the formal requirements of Article 76(d) of the Rules of Procedure. Under that provision, the application should contain a summary of the pleas in law relied on by the applicant. The application is thus inadmissible in its entirety.

36 The applicant claims that the pleas in law invoked in support of the action are not only presented in summary form, but are also set out comprehensively in a clear, coherent and structured manner. The plea of inadmissibility raised by the Commission is therefore manifestly unfounded.

37 It should be noted that, under the first paragraph of Article 21 of the Statute of the European Court of Justice, applicable to proceedings before the General Court by virtue of the first paragraph of Article 53 of that Statute, and to Article 76(d) of the Rules of Procedure, an application must, inter alia, contain the subject matter of the dispute and a brief statement of the pleas in law on which the application is based. That statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if necessary without any further information. In order to guarantee legal certainty and the sound administration of justice it is necessary, in order for an action to be admissible, that the essential matters of law and fact relied on are stated, at least in summary form, coherently and intelligibly in the application itself (see, to that effect, order of 11 January 2013, Charron Inox and Almet v Commission and Council, T‑445/11 and T‑88/12, not published, EU:T:2013:4, paragraph 57).

38 More specifically, whilst it should be acknowledged, first, that the statement of the pleas in law in the application need not conform with the terminology and layout of the Rules of Procedure and, secondly, that the pleas in law may be expressed in terms of their substance rather than of their legal classification, the application must nonetheless set out those pleas with sufficient clarity. Moreover, a mere abstract statement of the pleas in law in the application does not satisfy the requirements of the Statute of the Court of Justice of the European Union or the Rules of Procedure, and the expressions ‘brief statement of the pleas in law’ and ‘summary of those pleas in law’ used therein mean that the application must specify on what pleas the action is based (order of 28 April 1993, De Hoe v Commission, T‑85/92, EU:T:1993:39, paragraph 21; judgments of 28 September 2016, Pinto Eliseu Baptista Lopes Canhoto v EUIPO — University College London (CITRUS SATURDAY), T‑400/15, not published, EU:T:2016:569, paragraph 43, and of 15 February 2017, Morgese and Others v EUIPO — All Star (2 STAR), T‑568/15, not published, EU:T:2017:78, paragraph 20).

39 In the present case, the application contains not only a structured presentation of the pleas in law invoked in support of the action, but also detailed explanations of those pleas in law, which moreover allowed the Commission to respond precisely to each of the pleas in law.

40 Accordingly, the plea of inadmissibility raised by the Commission must be rejected.

The scope of the action

41 The Commission, supported by the intervener, notes that the applicant, while seeking annulment of the contested implementing regulation in its entirety, does not contest the fact that anti-dumping duties are payable on the imports of the product concerned to the Union. Therefore, if the Court upholds one of the pleas of the action, it could annul Article 1 of the contested implementing regulation only in so far as it imposes an anti-dumping duty in excess of that which should have been imposed on the applicant’s imports. That approach is compatible with the judgment of 21 November 2002, Kundan and Tata v Council (T‑88/98, EU:T:2002:280, paragraphs 149 and 150).

42 The applicant claims that a partial annulment of Article 1 of the contested implementing regulation would be contrary to the case-law. It considers, therefore, that, if the Court must uphold one of the pleas in law of the action, that implementing regulation should be annulled in its entirety, in so far as it concerns it.

43 In that regard, it should be noted that the Commission, supported by the intervener, requests only the dismissal of the action and that the applicant be ordered to pay the costs. It does not request, in the alternative, as in the case giving rise to the judgment of 21 November 2002, Kundan and Tata v Council (T‑88/98, EU:T:2002:280), the partial annulment of Article 1 of the contested implementing regulation. It follows that the arguments put forward by the Commission do not support its heads of claim. Moreover, it should be noted that, in the abovementioned case, the application for partial annulment presented by the Council was based on a precise calculation of the anti-dumping duty which would have resulted, where appropriate, from taking into consideration the unlawfulness invoked in support of the second plea in law in that case (see paragraphs 88 and 145 of that judgment). That is not the case here.

44 Moreover, and in any event, it is apparent from settled case-law that the partial annulment of a Union act is possible only if the elements the annulment of which is sought may be severed from the remainder of the act. In that regard, it has been repeatedly held that that requirement is not satisfied where the partial annulment of a measure would cause the substance of that measure to be altered (see judgment of 9 November 2017, SolarWorld v Council, C‑204/16 P, EU:C:2017:838, paragraph 36 and the case-law cited).

45 Contrary to what is contended by the Commission, in the circumstances of the present case, it is not possible to partially annul Article 1 of the contested implementing regulation, in so far as it would be annulled solely to the extent that it imposes a duty which is too high as a result of the error which could be established concerning the method for calculating the rate of anti-dumping duty.

46 The applicant puts forward, in support of the action, several pleas in law calling into question the calculation of the export price or of the normal value. Since the export price and the normal value are essential factors for the determination of the applicable anti-dumping duty rate, Article 1 of the contested implementing regulation could not be maintained in so far as it imposes an individual anti-dumping duty on the applicant, if one of the pleas in law put forward in support of the action in that regard were to be well founded (see, to that effect, judgment of 15 September 2016, PT Pelita Agung Agrindustri v Council, T‑121/14, not published, EU:T:2016:500, paragraph 82).

47 In the light of the above, it is necessary to reject the Commission’s arguments, supported by the intervener, according to which, although the Court should uphold one of the pleas in the action, it could annul Article 1 of the contested implementing regulation only in so far as it imposes an anti-dumping duty which is in excess of that which should have been applied to the applicant’s imports.

Substance

48 The applicant relies on five pleas in law in support of its action.

49 The first plea in law alleges an infringement of Article 2(11) and Article 17(2) of the basic regulation as well as the unlawfulness of the calculation of the applicant’s dumping margin.

50 The second plea in law alleges an infringement of Article 9(3) of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Tariffs and Trade 1994 (GATT) (OJ 1994 L 336, p. 103; ‘the anti-dumping agreement’), set out in Annex IA to the Agreement establishing the World Trade Organisation (WTO) (OJ 1994 L 336, p. 3), and the second subparagraph of Article 9(4) of the basic regulation, as well as the principle of good administration.

51 The third plea in law alleges an erroneous application of Article 2(9) and (10) of the basic regulation, in so far as the Commission deducted undue allowances for sales of small roles made from jumbo rolls sourced by Schades from European producers.

52 The fourth plea in law alleges an infringement of Article 2(1) of the basic regulation, in so far as the Commission erroneously constructed the normal value pursuant to Article 2(3) of that regulation.

53 The fifth plea in law alleges an infringement of Article 1(1) and Article 3(1) to (3) and (5) to (8) of the basic regulation, the case-law of the EU Courts, the decisions of the World Trade Organisation (WTO), the Commission’s previous decision-making practice and the principles of fair comparison and of equal treatment in the calculation of the injury margin.

The first plea in law, alleging an infringement of Article 2(11) and Article 17(2) of the basic regulation as well as the unlawfulness of the calculation of the applicant’s dumping margin

54 The first plea in law is divided into two parts.

55 In the first part, the applicant maintains that the Commission applied the sampling technique, although the latter denies having done so, thereby infringing Article 17(2) of the basic regulation.

56 In the second part, the applicant claims an incorrect calculation of its dumping margin, in breach of Article 2(11) of the basic regulation.

–  First part of the first plea in law, alleging infringement of Article 17(2) of the basic regulation

57 The applicant notes that the Commission finally exempted Schades Nordic, Heipa and R+S from responding to Annex I to the anti-dumping questionnaire and confined its request to Schades. During the hearing of 2 March 2017, the Commission pointed out that it was not a matter of sampling. The applicant states that, if the Commission’s contention is correct, there is no basis in the basic regulation to extrapolate Schades’ dumping margin to the other related converters. If, by contrast, it must be concluded that the Commission did carry out sampling, it would then have infringed Article 17(2) of that regulation by not inviting the applicant to comment on the proposed sample.

58 The applicant adds that it did in fact request an exemption for Schades Nordic, Heipa and R+S from completing Annex I to the anti-dumping questionnaire. However, the exemption granted means that those companies should be ignored for the purposes of calculating the dumping margin. Finally, the applicant contests the representativeness of Schades regarding the situation of three other related converters in the context of the calculation of the dumping margin, since, in particular, first, sales of small rolls produced from jumbo rolls which were not purchased in South Korea were included and, secondly, Schades purchased only marginally more jumbo rolls from it than Schades Nordic.

59 The Commission and the intervener dispute the applicant’s arguments.

60 According to Article 17(1) of the basic regulation, in the version applicable at the time of the facts, in cases where the number of complainants, exporters or importers, product types or transactions is large, the investigation may be limited to a reasonable number of parties, products or transactions by using samples which are statistically valid on the basis of information available at the time of the selection, or to the largest representative volume of production, sales or exports which can reasonably be investigated within the time available. According to Article 17(2) thereof, preference is to be given to choosing a sample in consultation with, and with the consent of, the parties concerned.

61 In the present case, as follows from recitals 22 to 46 of the contested implementing regulation, the Commission used Schades’ data in order to calculate the dumping margin for the sales of the product concerned to related converters, including sales to Schades Nordic, to Heipa and to R+S, which did not complete Annex I to the anti-dumping questionnaire. More particularly, the use of Schades’ data concerned the construction of the export price for sales of that product.

62 The applicant claims that the Commission infringed Article 17(2) of the basic regulation, in so far as it was not invited to submit its observations on the proposed sampling.

63 The first part of the first plea in law is therefore based on the premiss that the Commission applied Article 17(1) of the basic regulation where it decided to use Schades’ data in order to calculate the dumping margin for sales of the product concerned to related converters.

64 However, that premiss is incorrect.

65 First of all, the Commission clearly stated in recital 32 of the contested implementing regulation that it ‘did not make use of Article 17 of the basic regulation’. That position of the Commission had already been expressed to the applicant during the hearing of 2 March 2017 with the Hearing Officer.

66 Next, it should be noted that Article 17(1) of the basic regulation provides that sampling may be used in cases where the number of Union producers, exporters or importers, types of product or transactions is ‘large’. However, that is not the situation in the present case, that circumstance, moreover, never having been put forward by the Commission.

67 Moreover, it must be noted that the fact that Schades Nordic, Heipa and R+S did not complete Annex I to the anti-dumping questionnaire resulted from an initial request made by the applicant, formalised by an email of 19 February 2016. In that context, the applicant could not have been unaware that its exemption request did not mean that the investigation would be limited, as regards the related converters, only to sales of the product concerned to Schades, in the light of the obligation imposed on the Commission, pursuant to Article 2(11) of the basic regulation, to take into account all of the export transactions to the European Union when calculating the dumping margin (see, to that effect, judgment of 5 April 2017, Changshu City Standard Parts Factory and Ningbo Jinding Fastener v Council, C‑376/15 P and C‑377/15 P, EU:C:2017:269, paragraph 61). The Commission in addition pointed out, during the hearing of 10 March 2016 with the Hearing Officer, that a very large proportion of the sales of that product were to related converters and that the dumping margin for those sales was greater than that for sales to independent customers. It also stated, during the hearing of 13 December 2016 with the Hearing Officer, that, in view of the applicant’s sales structure, the most appropriate method for the determination of the export price for sales of that product was to base it on the sales prices of the transformed product, namely the small rolls.

68 Moreover, it is apparent from recital 32 of the contested implementing regulation that the Commission expressly referred to Article 2(9) of the basic regulation as the legal basis for the construction of the export price for the sales of the product concerned made to the related converters. Therefore, after having specified that it had not applied Article 17 of that regulation, the Commission stated that, ‘rather, in accordance with Article 2(9) of the basic Regulation, [it] sought to establish, in the specific circumstance of the case at hand, … the most reliable export price in case of sales of jumbo rolls to related parties destined for conversion into small rolls’. The applicant does not claim, in the context of the first part of the first plea in law, that the Commission infringed that provision.

69 In the light of all of those factors, the first part of the first plea in law must be rejected as unfounded.

–  The second part of the first plea in law, alleging infringement of Article 2(11) of the basic regulation

70 The applicant states that the Commission calculated a dumping margin for direct and indirect sales of the product concerned by the applicant and by Schades as well as a dumping margin for sales of small rolls by Schades. Next, it claims that the Commission weighted the calculated dumping margins by taking into account the share of the jumbo rolls sales, first, to independent customers (between 15 and 25%) and, secondly, to related converters for resale as small rolls to unrelated parties (between 75 and 85%). That weighting resulted in an overall dumping margin of 10.3% applicable to all of its sales. The weighting made by the Commission is vitiated by a manifest error in so far as it lacks a legal basis and results in an artificially high level. In the first place, the applicant claims that the Commission committed an error when determining the share of jumbo rolls sales to related converters for resale as small rolls to unrelated traders. Therefore, the Commission failed to take into account the fact that Schades Nordic sold a certain tonnage of the product concerned. In the second place, taking into account small rolls for the calculation of the dumping margin is contrary to Article 2(11) of the basic regulation in so far as, first, a significant quantity of small rolls included in the dumping margin of Schades was not produced by that company and, secondly, certain product types resold by Schades in small rolls came from European Union producers or were produced from jumbo rolls purchased from European Union producers.

71 The applicant adds that, contrary to what is stated by the Commission in the defence, the selling, general and administrative costs (‘SG&A costs’) were calculated solely on the basis of Schades’ questionnaire, and not on the basis of the response of the three related converters.

72 The Commission, supported by the intervener, states that most of the sales of jumbo rolls (between 75 and 85%) were made to related parties, for conversion into small rolls and subsequent resale in the European Union. Moreover, it was not possible to trace, at the premises of the related converters, the origin of the jumbo rolls in the context of the production of small rolls. The Commission considers therefore that, if the dumping margin had been calculated by taking into account solely direct or indirect sales to independent customers, that margin would not have correctly reflected total export sales. It states that it had to thus use the direct or indirect sales of the product concerned to independent customers as well as those made to related companies. As regards sales to independent customers, the export price was determined on the basis of the price actually paid or payable for the product concerned sold for export to the European Union. As regards sales to related companies, the Commission claims that it calculated the export price on the basis of the price at which the imported and converted product had first been resold to independent customers in the European Union. That method is in accordance with Article 2(9) of the basic regulation. That resale price to an independent customer was adjusted downwards by deducting SG&A costs (obtained from the response to the questionnaire by the three related converters), a reasonable profit margin and other costs. The Commission points out that, if that sale concerned a small roll, it deducted the reported and verified conversion costs. It claims that, once those export prices are established, it weighted them against the individual share of exports to the Union that they made up, that is to say, between 15 and 25% for sales to independent customers or between 75 and 85% for sales to related converters for resale as small rolls to unrelated parties. Finally, it states that it was aware that certain product types resold by Schades as small rolls came from European Union producers. However, two product types were not included in the determination of export sales in so far as Schades did not include them in the list of sales of converted jumbo rolls. With respect to two other product types, it was not possible to identify the small rolls which were produced from non-Korean jumbo rolls. The Commission points out that it included in the dumping calculation the total quantity identified as being the product purchased from complaining producers. It notes, however, that it made adjustments in favour of the applicant in order to take that situation into account.

73 The Commission adds that, as regards the volumes of the product concerned sold by Schades Nordic, it had no information in that regard, in so far as the applicant had requested that that company be exempted from the obligation to complete Annex I to the anti-dumping questionnaire. As regards SG&A costs, it acknowledges an error committed in the defence and points out that that calculation was based solely on Schades’ data.

74 Article 2(11) of the basic regulation provides that the existence of dumping margins during the investigation period shall normally be established on the basis of a comparison of a weighted average normal value with a weighted average of prices of all export transactions to the Union, or by a comparison of individual normal values and individual export prices to the Union on a transaction-to-transaction basis. However, a normal value established on a weighted average basis may be compared to prices of all individual sales to the Union if there is a significant difference in the pattern of export prices among different purchasers, regions or time periods and if the methods specified in the first sentence of that paragraph do not reflect the full degree of dumping being practised.

75 As regards, first of all, the wording of Article 2(11) of the basic regulation, it should be noted that that provision lays down two methods for comparing the normal value and the export price: the so-called ‘symmetrical’ method based either on the comparison of a weighted average normal value with the weighted average of prices of all export transactions to the Union or on a transaction-to-transaction comparison, and the so-called ‘asymmetrical’ method based on the comparison of a weighted average normal value with the prices of all individual export transactions to the Union. Next, as regards the objective pursued by that provision, it follows from the latter that both the symmetrical and the asymmetrical methods for calculating the dumping margin must serve to reflect the full degree of dumping being practiced (judgment of 5 April 2017, Changshu City Standard Parts Factory and Ningbo Jinding Fastener v Council, C‑376/15 P and C‑377/15 P, EU:C:2017:269, paragraphs 53 and 54).

76 Moreover, under Article 2(12) of the basic regulation, the dumping margin is the amount by which the normal value exceeds the export price.

77 Furthermore, it should be noted that, in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the EU institutions enjoy broad discretion because of the complexity of the economic, political and legal situations they have to examine. Since the application of Article 2(11) of the basic regulation requires an appraisal of complex economic situations, the judicial review of such an appraisal is limited to verifying whether the 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 in the appraisal of those facts or a misuse of powers (see judgment of 5 April 2017, Changshu City Standard Parts Factory and Ningbo Jinding Fastener v Council, C‑376/15 P and C‑377/15 P, EU:C:2017:269, paragraph 47 and the case-law cited).

78 That limited judicial review does not, however, mean that the EU judicature must refrain from reviewing the institutions’ interpretation of information of an economic nature. In particular, the Court must not only establish whether the evidence put forward is factually accurate, reliable and consistent, but must also determine whether that evidence contains all the relevant data that must be taken into consideration in appraising a complex situation and whether it is capable of substantiating the conclusions drawn from it (judgment of 29 January 2014, Hubei Xinyegang Steel v Council, T‑528/09, EU:T:2014:35, paragraph 53).

79 In the present case, the Commission used the symmetrical method of comparison between the weighted average normal value and the weighted average of the prices of all the exports to the Union.

80 The Commission moreover took into account, in its calculation of the dumping margin, the existing weighting between, on the one hand, the sales to independent customers (between 15 and 25%) and, on the other hand, the sales to related converters for resale in the form of small rolls to independent traders (between 75 and 85%).

81 On that basis, the Commission determined the existence of a dumping margin, expressed as a percentage of the CIF (cost, insurance, freight) value of the applicant’s export transactions, of 10.3%. In addition, it decided, at the request of the applicant, to apply a definitive fixed anti-dumping duty of EUR 104.46 per tonne, net, the latter corresponding to the anti-dumping margin expressed by tonne of the product exported by the applicant.

82 The applicant raises, in essence, two complaints in relation to the calculations made by the Commission.

83 By its first complaint, the applicant contests the weighting used by the Commission concerning sales to related converters for resale in the form of small rolls to independent traders (between 75 and 85%).

84 As follows from the evidence submitted, and in particular from the table of calculation of the applicant’s dumping margin, the weighting applied is based on a comparison relating to the total sales of the product concerned to the Union between, on the one hand, direct and indirect sales to independent customers and, on the other hand, sales to related converters for conversion into small rolls. The weighting applied had an impact on the calculation of the dumping practiced by the applicant in so far as the dumping carried out for direct and indirect sales of the product concerned was significantly lower than the dumping carried out for sales to related converters for conversion into small rolls.

85 As is apparent also from the evidence submitted, and in particular from the applicant’s table of calculation of the dumping margin, the Commission included in the indirect sales to independent customers resales of the product concerned by Schades. However, without that being contested by the Commission and as follows from the evidence adduced during the administrative procedure, at least one other related converter, namely Schades Nordic, resold a certain volume of the product concerned purchased from the applicant. The applicant clarified that situation, in the context of its observations of 27 February 2017 on the final disclosure document, by indicating, in the annex, the volumes concerned. Despite those clarifications, all of the applicant’s sales to that related converter, like those to the two other related converters external to Schades, namely Heipa and R+S, were considered to have been carried out for the purpose of conversion into small rolls, as the applicant claims in its written pleadings and as the Commission confirmed at the hearing.

86 Admittedly, as the Commission notes, Schades Nordic did not respond to the anti-dumping questionnaire. However, as has just been noted, it follows from the evidence submitted that the turnover from resales of the product concerned by Schades Nordic, submitted by the applicant, had been produced during the administrative procedure. Moreover, it should be noted that the Commission decided to use Schades’ data in order to calculate the dumping margin on the sales made by the applicant to the three other related converters. Therefore, in the light of the fact that the Commission knew that part of the sales of the product concerned to Schades had been resold without conversion to independent customers, it should have reflected that in the sales of the product concerned to the other related converters. By failing to take that factor into consideration, the Commission gave too much weight to sales to the related converters for conversion into small rolls, thereby increasing the actual dumping carried out by the applicant.

87 Since the calculations made by the Commission do not reflect the full extent of the dumping practiced by the applicant, an infringement of Article 2(11) of the basic regulation must be found.

88 By its second complaint, the applicant claims, in essence, that the Commission committed an error by taking into account, with respect to Schades, a volume of sales of small rolls which is greater than the volume of jumbo rolls purchased from the applicant. The Commission thereby included a certain volume of jumbo rolls purchased from Union producers in the calculation of Schades’ dumping margin.

89 In that regard, it is not contested that the Commission included all of the sales of small rolls made by that company to independent customers in the Union in the calculation of Schades’ dumping margin, by including those rolls manufactured from a certain volume of jumbo rolls purchased from Union producers.

90 However, as the applicant acknowledges in its written pleadings, it was not possible to make the imports of the product concerned correspond with the sales of small rolls. In those circumstances, and in the light of the obligation imposed on the Commission to take into account all of the export transactions to the Union when calculating the dumping margin (see paragraph 67 above), it cannot be accused of having carried out a construction of the export price which takes into account all of the sales of the transformed product since, in addition, an adjustment was made in order to take that situation into account. Therefore, in the present case, and as the Commission highlights, the total adjustments of small rolls when calculating the export price were significantly reduced in order to take into account the fact that a certain volume of those small rolls had been produced from European jumbo rolls. The applicant contested neither the figures presented by the Commission in its written pleadings nor the fact that those adjustments were likely, in themselves and subject to the specific arguments put forward in the context of the third plea in law relating to the amount of the adjustments made, to offset the taking into consideration of purchases from EU producers. Therefore, there is no evidence, particularly put forward by the applicant, allowing it to be concluded that the method used by the Commission and the adjustments made to take into account the specific situation of the case are contrary to Article 2(11) of the basic regulation.

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

92 In the light of the foregoing, and for the reasons set out in paragraphs 83 to 87 above, it is necessary to uphold the first complaint of the second part of the first plea in law.

93 In so far as the unlawfulness established relates only to a part of the calculation of the dumping and the applicant puts forward other pleas in law in that regard as well as to contest the determination of injury, it is necessary to carry out the analysis of the other pleas in law put forward in support of the action.

The second plea in law, alleging infringement of Article 9(3) of the anti-dumping agreement and of the second subparagraph of Article 9(4) of the basic regulation as well as the principle of good administration

94 The second plea in law consists of two parts.

95 In the first part, the applicant maintains that the amount of the anti-dumping duty exceeds the dumping margin established, in infringement of Article 9(3) of the anti-dumping agreement and of the second subparagraph of Article 9(4) of the basic regulation.

96 In the second part, the applicant alleges an infringement of the principle of good administration, in so far as the Commission calculated its ad valorem dumping margin wrongly and unlawfully by using a constructed CIF value rather than the actual CIF value.

–  The first part of the second plea in law, alleging an infringement of Article 9(3) of the anti-dumping agreement and of the second subparagraph of Article 9(4) of the basic regulation

97 The applicant claims that the definitive anti-dumping duty of EUR 104.46 per tonne, net, imposed by the Commission reflects a level of dumping in excess of that found during the investigation. In particular, for the reasons set out in the context of the second part of the first plea in law, the weighting of the dumping margins for the product concerned and for the small rolls is unlawful.

98 The applicant adds that, contrary to what is contended by the Commission, it is admissible to contest a measure which affects its legal interests. Moreover, the arguments developed in the context of that part are clear.

99 The Commission, supported by the intervener, states, in the first place, that the first part of the second plea in law is inadmissible in so far as the applicant could not contest a measure that it itself requested. It is necessary to make a distinction between a regulation which imposes anti-dumping measures and the measures themselves. In the second place, that part is inadmissible for lack of clarity. In the third place, the applicant’s arguments are unfounded. According to the Commission, it was required to weight direct imports to the EU differently than imports via related companies. The weighting justifying the anti-dumping duty was explained in recitals 46 and 49 of the contested implementing regulation.

100 First of all, the plea of inadmissibility raised by the Commission must be rejected. Firstly, even if the applicant requested the establishment of a fixed anti-dumping duty rather than an ad valorem anti-dumping duty, it remains admissible to contest the level of the fixed duty imposed by the Commission. Secondly, it is clearly apparent from the written pleadings before the Court that the applicant contests, in the context of the determination of the fixed anti-dumping duty, the weighting carried out by the Commission between, on the one hand, direct and indirect sales to independent customers and, on the other hand, sales to related converters for conversion into small rolls by referring, in particular, to the second part of the first plea in law. The applicant’s arguments, in that regard, are coherently and intelligibly presented and are sufficiently clear. Therefore, the first part of the second plea in law is admissible.

101 Next, it should be noted that the second subparagraph of Article 9(4) of the basic regulation provides, like Article 9(3) of the anti-dumping agreement, that the amount of the anti-dumping duty is not to exceed the dumping margin established but it should be less than the margin if such lesser duty would be adequate to remove the injury to the Union industry.

102 The second subparagraph of Article 9(4) of the basic regulation balances the interests of the exporting producers, importers, industry and consumers of the European Union and expresses, in respect of EU trade defence measures, the general principle of proportionality (see judgment of 28 February 2017, JingAo Solar and Others v Council, T‑157/14, not published, EU:T:2017:127, paragraph 198 and the case-law cited).

103 In the present case, the Commission set the anti-dumping duty in the form of a fixed duty, rather than an ad valorem duty, in the light of the difficulty to determine a reliable CIF price for the sales (recitals 127 and 128 of the contested implementing regulation).

104 The definitive fixed anti-dumping duty, of EUR 104.46 per tonne, net, was determined by taking into account the weighting between, on the one hand, direct and indirect sales to independent customers and, on the other hand, sales to related converters for conversion into small rolls, as is apparent from the evidence in the case, in particular from the table of calculation of the applicant’s dumping margin.

105 For the reasons set out in the context of first complaint in the second part of the first plea in law (see paragraphs 83 to 87 above), the calculations made by the Commission do not reflect the full degree of dumping practiced by the applicant. That error, which is connected with the weighting used by the Commission, thus affects also the establishment of the definitive fixed anti-dumping duty of EUR 104.46 per tonne, net, which thus exceeds the dumping actually practiced by the applicant in infringement of the second subparagraph of Article 9(4) of the basic regulation.

106 Consequently, and without there being a need to determine whether the Commission’s error also constitutes, as the applicant claims, an infringement of Article 9(3) of the anti-dumping agreement, it is necessary to uphold the first part of the second plea in law.

–  The second part of the second plea in law, alleging an infringement of the principle of good administration

107 The applicant notes that the Commission used a CIF value constructed from Schades’ sales, instead of using the actual CIF value, as a denominator for the calculation of the rate of the definitive anti-dumping duty of 10.3% mentioned in recital 129 of the contested implementing regulation. It notes that it drew the Commission’s attention to what it considered to be a methodological error. During the hearings of 2 and 22 March 2017, the Hearing Officer also considered that the Commission’s approach was wrong, noting that the use of an actual CIF value had been applied for decades. The applicant notes in particular that, in the prospective system of the EU anti-dumping rules, it is essential that the actual CIF value be used to calculate the ad valorem duty rate. Moreover, in the event of a constructed CIF value which is lower than an actual CIF value, as in the present case, the amount of anti-dumping duty to be paid is higher. The applicant considers that, by disregarding the Hearing Officer’s recommendations and by failing to respond to his objections, the Commission infringed the principle of good administration and its rights of defence. Finally, contrary to what is claimed by the Commission in that implementing regulation, it considers that it has an interest in challenging the validity of the calculation of the ad valorem duty rate of 10.3%, at least so as to clarify whether the new method applied by the Commission is lawful with a view to future anti-dumping proceedings. Furthermore, the Commission could decide to replace the fixed duty with ad valorem duty. The applicant adds that the CIF prices of the product concerned were verified by the Commission during the on-spot verifications and that no errors or incorrect declarations were found.

108 The Commission and the intervener dispute the applicant’s arguments.

109 First of all, it should be noted that, although the title of the second part of the second plea in law merely invokes an infringement of the principle of good administration, the applicant also alleges, in its written pleadings, a breach of the rights of the defence.

110 As regards the principle of good administration, it should be noted that, where the European Union institutions have a wide power of appraisal, respect for the rights guaranteed by the European Union 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 13 July 2006, Shandong Reipu Biochemicals v Council, T‑413/03, EU:T:2006:211, paragraph 63, and of 25 June 2015, PT Musim Mas v Council, T‑26/12, not published, EU:T:2015:437, paragraph 112).

111 In that regard, it should be noted that the Commission stated, in recital 127 of the contested implementing regulation, that ‘the Hansol Group [had] contested the fact that the Commission constructed the CIF price used as denominator’ for the sales through related parties and that, ‘to remedy this alleged distortion, the Hansol Group [had] proposed that [it] should apply an anti-dumping duty in the form of a specific amount per tonne instead of an ad valorem duty’. The Commission added, in recital 128 of that implementing regulation, that ‘the claim [had been] duly analysed’ and that, ‘in view of the specific circumstances of this case in relation to the determination of a reliable CIF price for these sales, [it had] concluded that it would be more appropriate to use a form of duty that [did] not require a reliable CIF price to be established’.

112 It follows therefrom that the Commission, first, took account of evidence adduced by the applicant during the administrative procedure and, secondly, decided to choose the form of anti-dumping duty finally imposed in the present case following a request made by the applicant in that sense and giving reasons for its choice. In the light of those elements, the Commission cannot be criticised for having infringed the principle of good administration and it is necessary to reject the applicant’s arguments in that regard.

113 As regards the rights of the defence, it should be noted that, in anti-dumping cases, the undertakings concerned should 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 and on the evidence presented by the Commission in support of its allegation concerning the existence of dumping and the resultant injury (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 76).

114 In the present case, it suffices to note that the applicant was able effectively to make known its views concerning the fact that the Commission constructed the CIF price used as the denominator for the sales through related parties, as results in particular from recital 127 of the contested implementing regulation. In addition, as follows from recital 128 of the implementing regulation, the Commission took into account the arguments developed by the applicant by choosing the form of the anti-dumping duty finally imposed. Therefore, there can be no finding in the present case of an infringement of the applicant’s rights of defence, and it is necessary to reject the applicant’s arguments in that regard.

115 Moreover, and in any event, it should be noted that the second part of the second plea in law is, in essence, based on the premiss that the Commission committed an error in the determination of the CIF value of the sales to Schades and that that error has an impact on the amount of the anti-dumping duty to be paid. In particular, the applicant states in the application that the determination of the CIF value is important, ‘because ad valorem anti-dumping duties are levied on the basis of the CIF price of the imported goods as declared to the EU customs authorities’ and that ‘if the ad valorem duty rate is computed on the basis of a constructed CIF price which is lower than the actual CIF price, as is the case here, the amount of the anti-dumping duty to be paid upon importation will be higher than the amount of dumping found during the investigation period’.

116 It should be pointed out that, although the constructed CIF value of the sales to Schades was used in the context of the calculation of the ad valorem dumping margin, it was not used in the context of the calculation of the definitive fixed anti-dumping duty of EUR 104.46 per tonne, net, which is the only anti-dumping duty imposed under Article 1(2) of the contested implementing regulation. As follows from the applicant’s table of calculation of the dumping margin, the fixed definitive anti-dumping duty was calculated by dividing the overall amount of dumping (after applying the exchange rate) by the quantities imported and by applying a weighting between, on the one hand, the direct and indirect sales to independent customers and, on the other hand, the sales to related converters for conversion into small rolls.

117 Therefore, a possible error relating to the use of the constructed CIF value has no impact on the lawfulness of the definitive fixed anti-dumping duty rate of EUR 104.46 per tonne, net, imposed in the present case in accordance with Article 1(2) of the contested implementing regulation. The second part of the second plea in law can therefore not lead to the annulment of that implementing regulation in that regard. The applicant moreover acknowledged, in its response to the measures of organisation of procedure, that the unlawfulness that it claims in the context of the second part of the second plea in law ‘had no impact’ on the determination of the definitive fixed anti-dumping duty rate of EUR 104.46 per tonne, net.

118 Moreover, contrary to what is stated by the applicant in its written pleadings, there would not be a lack of remedy if the Commission decided to modify the form of anti-dumping duties and to impose those duties on an ad valorem basis. That change and the legal effects it involves would necessarily be in the form of a modification of existing duties and the adoption of a new implementing regulation. In that context, the applicant could contest the modification and the resulting new legal effects before the Court.

119 Consequently, the second part of the second plea in law must be rejected.

120 In the light of the foregoing, and for the reasons set out in paragraphs 100 to 106 above, it is necessary to uphold the first part of the second plea in law.

121 In so far as the unlawfulness established relates only to a part of the calculation of the dumping and the applicant puts forward other pleas in law in that regard as well as contesting the determination of injury, it is necessary to continue with the analysis of the other plea in law put forward in support of the action.

The third plea in law, alleging an erroneous application of Article 2(9) and (10) of the basic regulation, in so far as the Commission deducted undue allowances for sales of small roles made from jumbo rolls sourced by Schades from European producers

122 The applicant notes that, in the context of the construction of the export prices, on the basis of sales of small rolls by Schades, the Commission deducted in particular the freight and handling charges for transportation of jumbo rolls from South Korea to the EU. During the period of investigation, Schades purchased a significant volume of jumbo rolls from EU producers. It was, however, not possible to trace the origin of the jumbo rolls used for the production of small rolls by Schades. The applicant states that it informed the Commission that the jumbo rolls originating from EU producers should not be treated in the same way. The Commission took that situation into account ‘by deducting, for a representative volume of small roll sales, allowances up to CIF level only’ (recital 42 of the contested implementing regulation). By so doing, the Commission committed two errors.

123 The first error results from the fact that the Commission applied the correction at issue to a product type, which constituted a ‘representative volume of small roll sales’ produced by using European jumbo rolls, on the basis of expenses incurred in relation to all product types. However, the Commission had precise information concerning the product type at issue. The Commission thus infringed Article 2(9) and (10) of the basic regulation by not relying solely on the costs incurred for that product type, but by using an average of the sales of all product types. The applicant adds that, while maintaining that it was not possible to link Schades’ purchases of jumbo rolls with its small rolls sales, the Commission based its calculation of the dumping margin on the presumption of a link between those products, at least by product type.

124 The second error derives from the fact that the Commission wrongly considered that the difference between the small rolls sold by Schades and the jumbo rolls purchased by Schades from Union producers corresponds to the jumbo rolls purchased in South Korea. That assumption is, however, manifestly erroneous in the light of the actual figures for purchases of Korean jumbo rolls by Schades. The applicant adds that, in the defence, the Commission puts forward a figure relating to tonnes purchased from Union producers which does not correspond to that used in its calculation of the dumping margin.

125 The Commission and the intervener maintain that the applicant’s arguments are in part unfounded and in part inadmissible.

126 Article 2(9) of the basic regulation provides inter alia that, in the case of the construction of the export price, adjustments are made to take into account all the costs, including duties and taxes, incurred between importation and resale and a profit margin, in order to establish a reliable export price at the Union frontier level. The costs for which adjustment is made include those normally borne by an importer but paid by any party, either in or outside the Union, and which appears to be associated or to have a compensatory arrangement with the importer or exporter.

127 Article 2(10) of the basic regulation provides inter alia that, in order to secure a fair comparison between the normal value and the export price, due allowance, in the form of adjustments, is to be made in each case, on its merits, for differences in factors which are claimed, and demonstrated, to affect prices and price comparability. As regards freight and handling costs, specifically referred to in the third plea in law, Article 2(10)(e) of that regulation provides that adjustment is to be made for differences in the directly related costs and which were incurred for conveying the product concerned from the premises of the exporter to an independent buyer, where such costs are included in the prices charged.

128 It should be noted that it is for the Commission to make, on its 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 (judgment of 4 May 2017, RFA International v Commission, C‑239/15 P, not published, EU:C:2017:337, paragraph 38).

129 Moreover, 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 that provision 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 that regulation. Adjustments provided for in the context of Article 2(10) of that 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 judgment of 4 May 2017, RFA International v Commission, C‑239/15 P, not published, EU:C:2017:337, paragraph 43 and the case-law cited).

130 First of all, it should be noted that the adjustment made by the Commission, the level of which is contested by the applicant, took place in the context of the construction of the export price, as is shown by recital 42 of the contested implementing regulation, where the adjustment at issue is mentioned and which is part of point 2.2 of the recitals of the implementing regulation, entitled ‘Export price’.

131 However, as was confirmed by the Commission in response to the measures of organisation of procedure, the adjustment at issue also took place in the calculation of the dumping margin. It, therefore, also comes within Article 2(10) of the basic regulation.

132 As regards the first error alleged in the context of the third plea in law, it should be noted that the Commission used Schades’ data in order to calculate the dumping margin for sales of the product concerned to the related converters, including the sales to Schades Nordic, to Heipa and to R+S which did not complete Annex I to the anti-dumping questionnaire. More specifically, the use of that data related to the construction of the export price for sales of the product concerned. In the context of that calculation, the Commission in particular took into account freight and handling charges for transportation of jumbo rolls from South Korea to the EU. Moreover, regarding the product type at issue in the third plea in law, the small rolls sold by Schades were produced partly from European jumbo rolls. In order to take that situation into consideration and not deduct freight charges for transportation from South Korea to the EU of jumbo rolls purchased in the EU, the Commission applied a lower adjustment, namely an adjustment making it possible to obtain a CIF price at the Union frontier.

133 It is the amount of the adjustment relating to transport and handling costs of jumbo rolls from South Korea to the European Union, in the context of the taking into account of small rolls manufactured by Schades, which is the subject of the third plea in law. The applicant claims in essence that the Commission infringed Article 2(9) and (10) of the basic regulation, in so far as the Commission did not base the adjustment at issue on costs ‘actually incurred’ for the product control number (‘PCN’) concerned, but on a weighted average of all of the PCNs.

134 As follows from the contested implementing regulation, in particular from recital 40 thereof, and as was confirmed by the applicant in its written pleadings, it was not possible to link, during the administrative procedure, the small rolls produced by Schades and the jumbo rolls exported by the applicant, transaction-by-transaction. In other words, for each small roll sold by Schades, the applicant failed to identify precisely the jumbo roll used for its production. Schades was therefore unable to identify for each transaction, as stated by the Commission, the freight and handling charges for transportation from South Korea to the EU of jumbo rolls used for the production of small rolls.

135 Therefore, the applicant cannot validly accuse the Commission of failing to base the adjustment at issue on the costs ‘actually incurred’ for the relevant PCN.

136 Moreover, the applicant has not adduced any detailed evidence which calls into question the finding reproduced by the Commission in recital 43 of the contested implementing regulation, according to which the volumes of purchases of the product concerned did not constitute a reliable basis for the adjustment at issue, since ‘most volumes of that product type were sourced through another related purchase channel which was not used for this calculation’.

137 It is therefore necessary to reject the arguments put forward by the applicant in the context of the first error alleged.

138 As regards the second error alleged in the context of the third plea in law, it should be noted that the application must, in particular, contain the subject matter of the dispute and a brief statement of the pleas in law on which it is based. Those elements must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if necessary without any further information. In order to guarantee legal certainty and the sound administration of justice it is necessary, in order for an action to be admissible, that the essential matters of law and fact relied on be stated, at least in summary form, coherently and intelligibly in the application itself (see the case-law cited in paragraph 37 above).

139 In the present case, it should be noted that the third plea in law of the action relates specifically, as is indicated by its title, to the ‘undue allowances for sales of small rolls made from jumbo rolls sourced by Schades from EU producers’.

140 The complaint on the basis of the second alleged error does not relate to the small rolls made from jumbo rolls acquired from European producers, but to the quantity of jumbo rolls originating in South Korea. Moreover, the complaint on the basis of the second error alleged does not relate to an adjustment which was carried out by the Commission, but to an alleged error with respect to the quantification of quantities purchased in South Korea. Finally, as was correctly pointed out by the Commission and the intervener, no details are given with regard to the relationship between the second error alleged and the infringement of Article 2(9) or Article 2(10) of the basic regulation. The same applies where the applicant pleads an infringement of the principle of good administration in paragraph 95 of the application, without specifying to what extent the alleged error constitutes such an infringement.

141 It follows therefrom that the complaint relating to the second error alleged in the context of the third plea in law must be held to be inadmissible.

142 In any event, it should be noted that the figures put forward by the applicant in its written pleadings concerning volumes of jumbo rolls purchased by Schades in South Korea, for the product type in question, are not specifically referred to in the evidence placed in the file during the administrative procedure. In those circumstances, the arguments put forward by the applicant in that regard must be considered to be insufficiently substantiated. Moreover, no evidence has been adduced by the applicant making it possible to assess the impact of the error alleged on the calculations carried out by the Commission and, therefore, on the anti-dumping duties imposed.

143 In the light of the foregoing, the third plea in law must be rejected as partly unfounded and partly inadmissible.

The fourth plea in law, alleging an infringement of Article 2(1) of the basic regulation, in so far as the Commission erroneously constructed the normal value pursuant to Article 2(3) of that regulation

144 The applicant states that the Commission constructed, for Artone, the normal value of two product types which had not been sold by that company on South Korea’s domestic market. It notes that those two product types were, by contrast, sold by it. It claims that the Commission should have used its own sales in order to calculate Artone’s normal value. The use of the relevant domestic prices is the priority method for the determination of the normal value. The Commission moreover used that method in another comparable case. The applicant claims that, in order to reject the use of that method, the Commission referred to the different structure of Artone’s and its costs and the low representativeness of one of the two product types sold by it. However, those reasons are not valid for the purposes of excluding the use of domestic prices to calculate the normal value. Furthermore, the applicant considers that the construction of the normal value for it, as regards the product type at issue, was closer to reality than that calculated for Artone. A WTO panel also confirmed that it was above all necessary to rely on actual data in order to calculate the normal value.

145 The applicant adds that the Commission’s presentation in the defence is incorrect for several reasons. First of all, one of the two product types identified by the Commission is incorrect. Next, contrary to what is contended by the Commission, Artone did not sell any of the two product types identified in the fourth plea in law. The references to the representativeness of domestic sales are therefore erroneous. Moreover, the applicant considers that its sales channels did not have any particular characteristics. As regards the uncertainty surrounding the cost structure, it asserts that it is a new element which was not brought to its attention during the administrative procedure.

146 The Commission, supported by the intervener, states that, for two product types, the sales on the South Korean domestic market were not representative, since they represented less than 5% of the total volume of export sales to the EU. It states that it therefore constructed the normal value for those two product types. Moreover, Artone’s cost structure significantly differed from that of the applicant. The Commission also maintains, as regards the applicant’s argument that it rejected its arguments on spurious grounds, that that argument amounts merely to a repetition of arguments presented during the administrative procedure. The fact that the applicant disagrees with the choice of method finally applied does not show that the basis for the findings made in the contested implementing regulation is wrong. The Commission maintains that it took into account the particular features of the applicant’s sales channels and the uncertainties about its cost structure, when constructing the normal value for certain product types. Furthermore, as regards Artone, it states that it took that undertaking’s data into account. Therefore, it could not be accused of committing an error.

147 The Commission adds that, as regards the product types referred to in the defence, they concerned the applicant. As regards Artone, there were no sales on the domestic market of South Korea for the two product types referred to by the applicant and, therefore, the normal value was constructed. The WTO panel report invoked by the applicant does not relate to the provision relied on in the present case. In any event, the Artone normal value was calculated on the basis of SG&A costs for sales made in the ordinary course of trade, in accordance with the conclusions of that panel. Finally, the Commission maintains that even if its decision-making practice were applicable, it cannot bind it in the future.

148 It should be noted that the determination of the normal value of a product constitutes one of the essential steps required to prove the existence of dumping (judgment of 22 March 2012, GLS, C‑338/10, EU:C:2012:158, paragraph 19). The first subparagraph of Article 2(1) of the basic regulation provides, in that regard, that ‘the normal value shall normally be based on the prices paid or payable, in the ordinary course of trade, by independent customers in the exporting country’. It is apparent from both the wording and from the scheme of that provision that it is the price actually paid or payable in the ordinary course of trade which must, as a matter of priority, be taken into consideration in principle to establish the normal value (judgment of 1 October 2014, Council v Alumina, C‑393/13 P, EU:C:2014:2245, paragraph 20).

149 Moreover, the second subparagraph of Article 2(1) of the basic regulation provides that, ‘where the exporter … does not produce or does not sell the like product, the normal value may be established on the basis of prices of other sellers or producers’. That provision also permits, by the use of the prices of other sellers or producers, a determination of the normal value on the basis of prices paid or payable, in the ordinary course of trade, by independent customers in the exporting country.

150 There may be derogations from the principle of the use of prices paid or payable, in the ordinary course of trade, by independent customers in the exporting country, only when there are no or insufficient sales of the like product in the ordinary course of trade, or where because of the particular market situation such sales do not permit a proper comparison (the first subparagraph of Article 2(3) of the basic regulation). The first case, namely an absence of sales of the like product in the ordinary course of trade, covers in particular the situation in which sales are made below unit production costs (fixed and variable) plus SG&A costs (Article 2(4) of that regulation). The second case, namely an insufficiency of sales, covers the situation in which sales of the like product in the exporting country constitutes less than 5% of the sales volume of the product concerned to the Union (Article 2(2) of that regulation). The third case, namely the particular market situation, covers in particular artificially low prices, significant barter trade or the existence of non-commercial processing arrangements (the second subparagraph of Article 2(3) of that regulation). Those derogations from the method of establishing the normal value on the basis of actual prices are exhaustive in nature (judgment of 1 October 2014, Council v Alumina, C‑393/13 P, EU:C:2014:2245, paragraph 21).

151 In the cases referred to in the first subparagraph of Article 2(3) of the basic regulation, the normal value of the like product is to be calculated on the basis of the cost of production in the country of origin plus a reasonable amount for SG&A costs and for profits, or on the basis of the export prices, in the ordinary course of trade, to an appropriate third country, provided that those prices are representative.

152 It follows from the foregoing that there is a difference between the situation in which the exporter does not produce or does not sell the like product (second subparagraph of Article 2(1) of the basic regulation) and that in which there are no sales of the like product in the ordinary course of trade or, where there are such sales, they are insufficient or do not permit a proper comparison in the light of the particular market situation (first subparagraph of Article 2(3) of that regulation). In the first situation, the normal value is established on the basis of the prices of other sellers or producers. In the second situation, the normal value is calculated on the basis of the cost of production in the country of origin or on the export prices to a third country.

153 In the present case, as is apparent from recital 20 of the contested implementing regulation, the Commission found that, in the case of Artone, ‘there were two product types with no or unrepresentative domestic sales’. It follows therefrom that, at least as regards one product type, there were no domestic sales.

154 On that basis, the Commission calculated the normal value of Artone, for those two product types, on the basis of its production costs, ‘pursuant to Article 2(3) of the basic regulation’.

155 In the first place, it is necessary to note at least a certain uncertainty in the explanations given by the Commission before the Court. After having first of all stated in the defence that, concerning the two product types referred to in recital 20 of the contested implementing regulation, domestic sales were not representative, for the purposes of Article 2(2) of the basic regulation, the Commission clearly stated in the rejoinder that there were ‘no sales in the domestic market’ of South Korea for those two product types, which is moreover claimed by the applicant in its written pleadings.

156 In the second place, and despite the uncertainty stemming from the Commission’s pleadings, it is nevertheless apparent from the contested implementing regulation that Artone’s domestic sales were non-existent as regards at least one of the two product types referred to by the applicant in its pleadings. Moreover, the Commission has not provided any clarification which would call into question the fact, put forward by the applicant, that Artone had not sold the two product types on its domestic market. The only figures presented by the Commission related to the representativeness of product types sold by the applicant on its domestic market, and not by Artone. Moreover, the Commission confirmed in its responses to the measures for the organisation of procedure that, for one of the two product types concerned, the applicant’s domestic sales were representative, but that it had nevertheless decided, for that product type, to construct the normal value of Artone on the basis of Article 2(3) of the basic regulation. Furthermore, as follows from recital 36 of Implementing Regulation 2016/2005 and from explanations included in both information document containing the Commission’s preliminary findings (see paragraph 17 above) and in the final disclosure document (see paragraph 19 above), the Commission decided to carry out a construction of the normal value for the product types which were not sold on the South Korean domestic market, including, therefore, those of Artone.

157 As is apparent from Article 2(1) of the basic regulation, where the exporter does not sell the like product, the normal value ‘may be established on the basis of prices of other sellers or producers’, and not using the relevant company’s production costs. The circumstances put forward by the Commission according to which the applicant’s and Artone’s ‘cost structure’ or ‘sales prices’ were significantly different (recital 21 of the implementing regulation) are not covered by the derogations from the method of establishing the normal value on the basis of actual prices which, as is noted in paragraph 150 above, are exhaustive in nature. Moreover, as regards the fact put forward in recital 21 of that implementing regulation that, for one of the two product types concerned, sold by the applicant, the domestic sales quantities were found to be unrepresentative, no evidence adduced by the Commission allows it to be determined whether that circumstance related to the product type, referred to in recital 20 of that implementing regulation, which was not sold by Artone. Furthermore, and in any event, that finding has no bearing on the circumstance put forward by the applicant that the two product types at issue had not been sold by Artone on its domestic market.

158 In the light of all of those elements, it must be held that the Commission infringed Article 2(1) of the basic regulation in the context of the calculation of the normal value of Artone.

159 Therefore, the fourth plea in law must be upheld.

160 In so far as the unlawfulness established relates only to a part of the calculation of the dumping and the applicant puts forward another plea in law contesting the determination of the injury, it is necessary to carry out an analysis of the fifth plea in law put forward in support of the action.

The fifth plea in law, alleging an infringement of Article 1(1) and Article 3(1) to (3) and (5) to (8) of the basic regulation, the case-law of the EU Courts, WTO decisions, the Commission’s previous decisional practice and the principles of fair comparison and of equal treatment in the calculation of the injury margin

161 The fifth plea in law is composed of three parts. In the first part, the applicant claims that the Commission infringed Article 1(1) and Article 3(2), (3) and (6) of the basic regulation by including the resale of small rolls in the calculation of the injury margin. In the second part, the applicant invokes an infringement of Article 3(1) to (3) and (5) to (8) of that regulation, the case-law of the EU Courts and WTO decisions, the Commission’s previous decision-making practice and the principles of fair comparison and equal treatment, in so far as the Commission applied by analogy Article 2(9) of that regulation for the calculation of the injury margin. In the third part, the applicant considers that the Commission infringed Article 3(2), (3) and (6) of that regulation by incorrectly assessing the impact of the negative undercutting margin found for the product concerned.

–  The admissibility of the fifth plea in law

162 It should be noted that, according to the second subparagraph of Article 9(4) of the basic regulation, as applicable at the time of the facts, ‘the amount of the anti-dumping duty shall not exceed the margin of dumping established but it should be less than the margin if such lesser duty would be adequate to remove the injury to the Union industry’.

163 In the present case, the injury margin of 37% was greater than the dumping margin of 10.3%. Consequently, the Commission imposed anti-dumping duties on the basis of the dumping margin, and not on the basis of the injury margin.

164 In that regard, it has already been held that the so-called ‘lesser-duty rule’ means that a producer upon whom anti-dumping duties have been imposed cannot contest them on the ground that the investigation resulted in an exaggerated injury margin if the rate of duty has been fixed at the level of the dumping margin and that dumping margin is below both the injury margin incorrectly adopted and the real injury margin (see judgment of 4 March 2010, Foshan City Nanhai Golden Step Industrial v Council, T‑410/06, EU:T:2010:70, paragraph 94 and the case-law cited).

165 In the present case, it should be noted that, admittedly, the applicant refers in the title of the fifth plea in law and in the arguments in support thereof to errors in the calculation of the injury margin, without precisely stating the extent to which that margin could have been lower than the dumping margin.

166 However, it follows also from the title of the fifth plea in law and from the arguments developed in the context of that plea in law that the applicant more generally calls into question the determination of the injury and the causal link.

167 Therefore, in the first part of the fifth plea in law, the applicant claims in particular that the sales of small rolls could not have caused injury to the Union industry. In the second part of the fifth plea in law, it states inter alia that the method used by the Commission to determine the export price did not allow a correct evaluation of the real injury and, in particular, of price effects. In the third part of the fifth plea in law, it calls into question the evaluation of the impact of price undercutting in the context of the analysis of the injury and of the causal link.

168 Such alleged errors concern the determination of the existence of injury and of a causal link and, therefore, the essential conditions provided for in Article 3 of the basic regulation for the purposes of imposing an anti-dumping duty. Those alleged errors are therefore capable of leading to the annulment of the contested implementing regulation, without, moreover, the need to pose the question whether the injury margin was below the dumping margin.

169 It is therefore necessary to conclude that the fifth plea in law is admissible, to the extent that it concerns the analysis carried out by the Commission in relation to the existence of injury and a causal link.

–  The first part of the fifth plea in law, alleging an infringement of Article 1(1) and Article 3(2), (3) and (6) of the basic regulation

170 Noting that Union producers do not manufacture or sell small rolls, the applicant contests the inclusion of those products in the calculation of the injury margin. In the first place, Article 1(1) of the basic regulation describes the ‘release for free circulation’ as being the cause of injury. However, the small rolls are not imported into the Union and are thus not placed in free circulation. In the second place, Article 3(2) of that regulation provides for an objective examination of the effect that imports have on the prices of like products on the Union market. However, the small rolls are not subject to the investigation and are not imported from South Korea. They are also not manufactured or sold by the Union industry. In the third place, Article 3(3) of that regulation states that the injury margin is to be determined by examining the dumped imports as compared with the price of a like product of the Union industry. However, the small rolls are not subject to the investigation and are not like products. In the fourth place, Article 3(6) of that regulation provides for a demonstration that the volume and/or prices of those imports are responsible for an impact on the Union industry. However, the small rolls could not injure the Union industry, since they are not in competition with the jumbo rolls.

171 The applicant adds that it is inaccurate to claim, as the Commission does in its written pleadings, that only the jumbo rolls were taken into account in the calculation of the injury margin. The basis for the Commission’s calculations is the sales volume and value of the small rolls sold by Schades to independent customers. The Commission’s contention is therefore incorrect. As regards the sales of small rolls made by Schades, the Commission makes a comparison between a hypothetical Union frontier price of jumbo rolls and the price of jumbo rolls of the Union industry.

172 The Commission and the intervener dispute the applicant’s arguments.

173 In accordance with Article 1(1) of the basic regulation, an anti-dumping duty may be imposed on any dumped product whose release for free circulation in the Union causes injury. Moreover, Article 3(2) and (3) of that regulation provides, in the context of the determination of injury, for the examination of the impact of the dumped imports on the Union industry. In addition, according to Article 3(6) of that regulation, it must be shown that the dumped imports have a material impact on the Union industry.

174 In the context of the first part of the fifth plea in law, the applicant contests the inclusion of small rolls in the calculation of the injury margin, in so far as those products are not under investigation. In essence, therefore, the applicant starts from the premiss that the analysis of the injury suffered by the Union industry is based on an erroneous comparison of, on the one hand, the small rolls sold by the applicant’s related converters and, on the other hand, the jumbo rolls sold by the Union industry.

175 However, that premiss is incorrect.

176 As the Commission notes in its written pleadings, the sale prices of small rolls were used solely to construct, after adjustments, the export prices of jumbo rolls sold to related converters. That construction of the export price resulted from the impossibility of linking the sales of jumbo rolls to related converters and the sales of small rolls, after conversion, to independent customers in the EU. Therefore, the analysis of injury, including price undercutting, is based on a comparison of like products under investigation, namely the jumbo rolls. That situation is different from that envisaged in the context of the WTO panel report cited by the applicant in its written pleadings. In that case, the panel had envisaged a situation of an analysis of price undercutting in relation to products which were not comparable. However, that is not the case here.

177 Consequently, the first part of the fifth plea in law must be rejected as unfounded.

–  The second part of the fifth plea in law, alleging an infringement of Article 3(1) to (3) and (5) to (8) of the basic regulation, the case-law of the EU Courts, WTO decisions, the Commission’s previous decisional practice and the principles of fair comparison and of equal treatment

178 Noting that the Commission had applied by analogy Article 2(9) of the basic regulation to determine the injury margin, the applicant alleges, by its first complaint, an infringement of Article 3(1) of that regulation. The reasoning underlying the application of those two provisions is not the same. The Commission’s application by analogy is consequently erroneous. It is also inconsistent with previous decision-making practice. The applicant cites in particular a case in which the Commission did not deduct SG&A costs or notional profit in order to determine the free circulation price. It provides, in Annex A.32 to the application, a document derived from the administrative procedure in that case. According to it, the Commission should have taken into account the price of the product considered charged by Schades to its independent customers and deducted the costs of direct sales.

179 The applicant adds that the second part of the fifth plea in law does not concern the calculation of the dumping margin. Therefore, even if the Court had to reject the first four pleas in law as unfounded, that does not affect the relevance of the fifth plea in law. The applicant specifies that it claims that the Commission should have relied on the final prices of jumbo rolls actually charged to independent customers rather than constructing an artificial export price for jumbo rolls. Moreover, the Commission’s request that paragraph 139 of the application be rejected as inadmissible would be ‘strange’. Finally, as regards the document relating to another administrative procedure included in Annex A.32 to the application, it was included in the investigation file in that other procedure. The applicant claims that the use of the experience acquired by its lawyers does not infringe any rule of professional conduct or other provision of EU law.

180 By its second complaint, the applicant claims that the use by analogy of Article 2(9) of the basic regulation also infringes Article 3(2), (3), (5), (7) and (8) of that regulation. The method adopted by the Commission does not permit, in the context of the evaluation of injury and in particular of the effect of imports, similar prices to be compared. It would have been necessary to use the price of the product concerned charged by Schades to independent customers in the Union.

181 By its third complaint, the applicant considers that the method adopted by the Commission is contrary to the case-law and, in particular, to the judgment of 30 November 2011, Transnational Company ‘Kazchrome’ and ENRC Marketing v Council and Commission (T‑107/08, EU:T:2011:704).

182 By its fourth complaint, the applicant claims that the method adopted by the Commission is contrary to the principle of fair comparison and to WTO decisions. In particular, WTO decisions pointed out that the existence of price undercutting must be based on prices which are properly comparable. In the present case, a comparison between Schades’ prices and those of the Union industry should have taken place only at a comparable level, namely the net ex-works price. The applicant adds that the fact that Schades’ sales to independent customers represent a small percentage of total export sales does not make their prices unreliable. Those prices are in fact the only relevant prices for the purposes of calculating the injury.

183 By its fifth complaint, the applicant considers that the method applied by the Commission infringes the principle of equal treatment, in so far as it treated in the same way sales made to independent customers and sales made to related customers. It adds that, contrary to what is contended by the Commission in its written pleadings, its argument is sufficiently clear.

184 The Commission, supported by the intervener, states, at the outset, that, if the Court were to reject the first four pleas in law as unfounded, it would also be necessary to reject the fifth plea in law as unfounded.

185 As regards the first complaint, the Commission notes that the export price is an essential factor in the determination of the injury margin. In so far as only Article 2(9) of the basic regulation provides guidance about the construction of the export price, its application by analogy is justified. Moreover, the application lacks clarity concerning the alleged infringement of Article 3(1) of that regulation. Paragraph 139 of the application should be rejected as inadmissible. As regards the previous decision-making practice, the Commission notes that the document produced in Annex A.32 to the application, relating to the other case cited by the applicant, is confidential and specific to that case. It has doubts as to the source of that document and considers that the disclosure thereof could contravene the rules of professional conduct of lawyers and EU rules. The Commission requests the Court to delete that information from the case file. Furthermore, the fact of deviating from previous decision-making practice is not a ground for annulment. The method applied in the present case is in addition compatible with the principle of equal treatment.

186 The Commission adds that the argument put forward by the applicant in the reply according to which it should have relied on the final prices of jumbo rolls actually charged to independent customers rather than constructing an artificial export price for jumbo rolls, is inadmissible since it was not made in due time. Moreover, the applicant acknowledges in the reply the need for adjustments in order to ensure price comparability. In addition, the calculations to determine the injury margin require the determination of an export price. That price is that at which the product concerned enters into competition with that of the Union industry, that is to say, in the present case the price of the first resale to independent customers. Furthermore, the Commission points out that the structure and lack of traceability of the applicant’s sales led it to consider that the actual price was not reliable.

187 As regards the second complaint, the Commission notes that competition took place for the most part at the level of the related converters. It states that it had to ignore Schades’ transactions with independent customers, in so far as they represented only a small percentage of the export sales of the product concerned.

188 As regards the third complaint, the Commission considers that the case-law cited by the applicant does not call into question the construction of the export price on the basis of the resale price to the first independent customer, duly adjusted, by applying by analogy Article 2(9) of the basic regulation.

189 As regards the fourth complaint, the Commission notes that it considered that Schades’ prices were not reliable. It states that the WTO decisions referred to by the applicant and the case-law confirm the discretion which it enjoys in order to ascertain the comparability of prices and evaluate the effect of imports. It adds that the unreliability of Schades’ sales resulted not only from the lack of traceability of the product concerned, but also from the unreliability of the actual prices charged.

190 As regards the fifth complaint, the Commission maintains that the applicant’s argument is too vague and imprecise and must be rejected as inadmissible. It contends in any event that the applicant does not explain in what way it treated exports made to independent customers and those made to related customers differently. Moreover, it notes that the prices charged by the applicant to related converters could not be regarded as reliable.

191 As a preliminary point, and since some of the first to fourth pleas in law have been upheld wholly or in part, the Commission cannot succeed in its argument to the effect that, if those pleas in law had to be rejected as unfounded, it was also necessary to reject the second part of the fifth plea in law. It is in addition necessary to reject the plea of inadmissibility put forward by the Commission in relation to the applicant’s argument in the reply, according to which the Commission should have relied on the final prices of jumbo rolls actually charged to independent customers rather than constructing an artificial export price for jumbo rolls. It is clearly apparent from the application that the applicant claims that the Commission should have used as the free circulation price for the resales by Schades of the product concerned the sales prices to independent customers of that company, adjusted to an ex-works level. The argument put forward by the applicant in the reply is thus directly linked to the arguments already set out in the application.

192 As a further preliminary point, it is necessary to respond to the Commission’s request to have removed from the case file a document obtained by the applicant’s lawyers in the context of another anti-dumping procedure and reproduced in Annex A.32 to the application.

193 In that regard, it should be noted that only the ‘interested parties’ to anti-dumping proceedings who have made themselves known in good time can inspect all information made available by any party to an investigation, as distinct from internal documents prepared by the authorities of the Union or its Member States, which is relevant to the presentation of their cases and not confidential, and is used in the investigation (Article 6(7) of the basic regulation).

194 In the present case, it is not disputed that the applicant was not an ‘interested party’ to the procedure from which the document at issue originates. It should also be noted that that document, in the light of its nature and the status attached to its consultation, is one of the documents on a matter relating to the policies, activities and decisions falling within the Commission’s sphere of responsibility and has not been made public. In that context, in order for that document to be made public, an application for access to that document would have been necessary, in accordance with the provisions of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) (see, to that effect, order of 21 February 2013, Besselink v Council, T‑331/11, not published, EU:T:2013:91, paragraphs 9 and 10). However, the applicant did not make such an application. Moreover, although the Court was entitled to hold, on the balance of the interests to be protected, that it was necessary to consider whether particular circumstances, such as the decisive nature of the production of the document for the purposes of reviewing the lawfulness of the procedure leading to the adoption of the contested measure or of establishing the existence of a misuse of powers, could constitute grounds for keeping such a document in the case file, the applicant has not asserted such particular circumstances and not alleged the decisive nature of the document at issue (see, to that effect, order of 21 February 2013, Besselink v Council, T‑331/11, not published, EU:T:2013:91, paragraphs 12 and 13).

195 Therefore, it is necessary to remove from the case file the document obtained by the applicant’s lawyers in the context of another anti-dumping procedure and reproduced in Annex A.32 to the application.

196 In terms of substance, in essence, the applicant calls into question in the second part of the fifth plea in law a specific point of the method adopted by the Commission, namely the fact that the latter reconstructed the export price of Schades’ resales of the product concerned to independent customers (indirect sales of the product concerned), by deducting in particular SG&A costs and a profit margin, to obtain a hypothetical CIF Union frontier price. According to it, the Commission should have used the actual sales prices and deducted solely the costs incurred for the sale. It does not call into question in that part the direct sales to independent customers, or the use of sales of small rolls.

197 In that regard, it should be borne in mind that Article 1(1) of the basic regulation provides that ‘an anti-dumping duty may be imposed on any dumped product whose release for free circulation in the Union causes injury’. That provision, which forms part of Article 1, entitled ‘Principles’, lays down the essential rule for imposing anti-dumping duties, under which it is not sufficient that the imported goods are dumped, as it is also necessary that their release for free circulation should cause injury. It is precisely for determining whether there has been injury that the basic regulation provides, in Article 3(2) and (3), that an objective examination of the effect that imports have on the prices of like products on the Union market must be made and that, to that end, consideration is to be given to whether there has been significant price undercutting by the dumped imports as compared with the price of a like product, or whether the effect of such imports is otherwise to depress prices to a significant degree or to prevent price increases, which would otherwise have occurred, to a significant degree (judgment of 30 November 2011, Transnational Company ‘Kazchrome’ and ENRC Marketing v Council and Commission, T‑107/08, EU:T:2011:704, paragraph 58).

198 It follows therefrom that it is by reference, in particular, to the possibility of injury being caused by dumped imports that it is necessary to examine whether the Commission committed a manifest error of assessment in determining the reference point to be used, in the present case, to calculate the prices of the applicants’ goods which were to be compared with prices in the Union industry (see, to that effect, judgment of 30 November 2011, Transnational Company ‘Kazchrome’ and ENRC Marketing v Council and Commission, T‑107/08, EU:T:2011:704, paragraph 59).

199 In that context, it is the prices negotiated between an undertaking and the customers and not prices at an intermediate stage which could determine the decision of those customers to acquire that undertaking’s product and not that of the Union industry (see, to that effect, judgment of 30 November 2011, Transnational Company ‘Kazchrome’ and ENRC Marketing v Council and Commission, T‑107/08, EU:T:2011:704, paragraph 63).

200 In the present case, although the Commission was entitled to reduce the export price of the product concerned to a CIF Union frontier level where it was sold and then converted into small rolls, the construction carried out by the Commission regarding the resales by Schades of the product concerned, and therefore not converted, to independent customers is erroneous.

201 First of all, unlike the sale of small rolls, the sales at issue in the second part of the fifth plea in law relate to the product concerned itself. It is that product which is in competition with the like product of the Union industry and which inflicts injury on that industry. Therefore, the ‘reference point’ relating to Schades’ resales, for the purposes of the case-law referred to in paragraph 198 above, is not at the Union frontier level, but at the level of Schades’ independent customers.

202 Next, although it is true that the Commission stated, in recital 122 of the contested implementing regulation, that ‘most of’ the competition took place at the level of the related converters, it did not consider that ‘all’ the competition took place at that level. In that regard, it must be concluded that, regarding the direct and indirect sales of the product concerned, competition took place at the level of the independent customers.

203 Therefore, the Commission committed an error by deciding to deduct SG&A costs and a profit margin, for the resales of the product concerned by Schades to independent customers, for the purposes of establishing the export price of that product in the context of the determination of the injury.

204 As regards the effect of such an error, it should be noted that, admittedly, Schades’ resales of the product concerned to independent customers represented only a small proportion of the sales used to determine the applicant’s export price in the context of the injury analysis. However, it should also be noted that, as follows from the examination of the first complaint of the second part of the first plea in law, the resales of the product concerned to independent customers should have represented a greater proportion than that accepted by the Commission. Moreover, there is no evidence making it possible to measure precisely the impact of a modification of the reference point for the resales of the product concerned to independent customers on the level of price undercutting adopted by the Commission, which, in the present case, amounted to 9.4% (recital 67 of the contested implementing regulation).

205 Therefore, the second part of the fifth plea in law must be upheld.

–  The third part of the fifth plea in law, alleging an infringement of Article 3(2), (3) and (6) of the basic regulation

206 The applicant notes that the undercutting margin calculated by the Commission was negative for the product concerned. The Commission could have found a positive undercutting margin only by taking into account sales of small rolls. As follows from the first part of the fifth plea in law, the Commission committed an error in that regard. Likewise, as follows from the second part of the first plea in law, the weighting used by the Commission is manifestly erroneous. That error also distorts the calculation of the undercutting and underselling margins. In addition, the Commission did not take into account the negative undercutting margin in its evaluation of the injury and the causal link, thereby infringing Article 3(2), (3) and (6) of the basic regulation.

207 The Commission, supported by the intervener, states that its conclusions were based on the overall undercutting margin. Contrary to what is claimed by the applicant, the undercutting margin of the product concerned was not negative. The applicant’s claim merely repeats the arguments of the first part of the fifth plea in law.

208 In that regard, it should be noted that it is for the purpose of determining whether there has been injury that the basic regulation provides, in Article 3(2) and (3) thereof, that an objective examination of the effect that imports have on the prices of like products on the Union market must be made and that, to that end, consideration is to be given to whether there has been significant price undercutting by the dumped imports as compared with the price of a like product, or whether the effect of such imports is otherwise to depress prices to a significant degree or to prevent price increases, which would otherwise have occurred, to a significant degree (judgment of 30 November 2011, Transnational Company ‘Kazchrome’ and ENRC Marketing v Council and Commission, T‑107/08, EU:T:2011:704, paragraph 58).

209 In the present case, it should be noted that the Commission found that the price undercutting was 9.4% (recital 67 of the contested implementing regulation).

210 As regards the applicant’s arguments developed on the basis of the first part of the fifth plea in law, they must be rejected for the same reasons as those set out in paragraphs 173 to 177 above.

211 As regards the applicant’s arguments developed on the basis of the second part of the first plea in law, it should be noted that, in the context of that part, it has been held that the Commission committed an error in the weighting of sales to related converters for resale in the form of small rolls to independent customers (between 75 and 85%) (see paragraphs 83 to 87 above). Since the Commission used the same weighting to calculate price undercutting, the error found in the second part of the first plea in law also affects that calculation.

212 In so far as it cannot be excluded that that error, together with that found in the context of the second part of the fifth plea in law, affects the Commission’s conclusion relating to the analysis of price undercutting and to the examination of the impact of dumped imports on like products of the Union industry, provided for in Article 3(2) and (3) of the basic regulation, the third part of the fifth plea in law should be upheld in so far as the applicant invokes an infringement of those provisions.

213 In the light of all the foregoing and of the unlawfulness established in the context of the examination of the first complaint of the second part of the first plea in law, the first part of the second plea in law, the fourth plea in law and the second and third parts of the fifth plea in law, it is necessary to annul the contested implementing regulation, in so far as it concerns the applicant.

Costs

214 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful, it must be ordered to bear its own costs and to pay those of the applicant, in accordance with the form of order sought by the latter.

215 In accordance with Article 138(3) of the Rules of Procedure, the intervener must bear its own costs.

On those grounds, THE GENERAL COURT (Seventh Chamber) hereby:

1. Removes the document reproduced in Annex A.32 to the application from the case file;

2. Annuls Commission Implementing Regulation (EU) 2017/763 of 2 May 2017 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain lightweight thermal paper originating in the Republic of Korea, in so far as it concerns Hansol Paper Co. Ltd;

3. Orders the European Commission to pay, in addition to its own costs, those incurred by Hansol Paper;

4. Orders the European Thermal Paper Association (ETPA) to bear its own costs.

"