Acron and Others v Commission (Dumping - Imports of ammonium nitrate originating in Russia - Judgment) [2021] EUECJ T-45/19 (05 May 2021)

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(Dumping – Imports of ammonium nitrate originating in Russia – Request for partial interim review – Termination of the partial interim review – No change of circumstances – Error of assessment – Obligation to state reasons – Rights of the defence)

European Commission, represented by M. Gustafsson and P. Němečková, acting as Agents,

Fertilizers Europe, established in Brussels (Belgium), represented by B. O’Connor, Solicitor,

APPLICATION under Article 263 TFEU for annulment of Commission Implementing Decision (EU) 2018/1703 of 12 November 2018 terminating the partial interim review concerning imports of ammonium nitrate originating in Russia (OJ 2018 L 285, p. 97),

composed of D. Spielmann, President, U. Öberg (Rapporteur) and O. Spineanu-Matei, Judges,

having regard to the written part of the procedure and further to the hearing on 14 October 2020,

1 The applicants, Acron PAO and Dorogobuzh PAO, and their subsidiary, Acron Switzerland AG (together, ‘the applicants’), are producers and exporters of ammonium nitrate, established, as regards the first two, in Russia and, as regards the third, in Switzerland. They sell ammonium nitrate to customers in the European Union.

2 By Regulation (EC) No 2022/95 of 16 August 1995 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia (OJ 1995 L 198, p. 1), the Council of the European Union imposed a definitive anti-dumping duty on imports of ammonium nitrate falling within CN codes 3102 30 90 and 3102 40 90 originating in Russia.

3 Following the first expiry review, provided for in Article 11(2) of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1), and a first interim review pursuant to Article 11(3) of that regulation, a definitive anti-dumping duty was imposed on imports from Russia by Council Regulation (EC) No 658/2002 of 15 April 2002 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia (OJ 2002 L 102, p. 1). Since imports originating in Russia were covered by Article 2(7) of Regulation No 384/96 (concerning imports from non-market-economy countries), normal value was based on data obtained in an appropriate market-economy third country.

4 Following a request for a partial interim review made by the applicants, by Council Regulation (EC) No 236/2008 of 10 March 2008 concerning terminating the partial interim review pursuant to Article 11(3) of Regulation No 384/96 of the anti-dumping on imports of ammonium nitrate originating in Russia (OJ 2008 L 75, p. 1), the anti-dumping measures adopted previously remained in force without any change in the following circumstances:

– the prices paid by the applicants were abnormally low. In that regard, it was noted that the data available to establish the ‘normal value’ indicated that domestic gas prices in Russia were regulated prices, far below market prices paid in unregulated markets for natural gas (recital 18 of Regulation No 236/2008);

– since gas costs were not reasonably reflected in the applicant’s records, they had to be adjusted accordingly. In the absence of any undistorted gas prices relating to the Russian domestic market, and in accordance with Article 2(5) of Regulation No 384/96, gas prices had to be established on any other reasonable basis, including information from other representative markets. The adjusted price had been based on the average price of Russian gas when sold for export at the German/Czech border (Waidhaus), net of transport costs and adjusted to reflect local distribution costs (recital 19 of Regulation No 236/2008);

– the primary criterion for the choice of the basis on which to establish the gas prices was the fact that it reasonably reflected a price normally payable in undistorted markets, which was the case for the prices charged at Waidhaus (recital 29 of Regulation No 236/2008).

5 At the same time, by Decision 2008/577/EC of 4 July 2008 accepting the undertakings offered in connection with the anti-dumping proceeding concerning imports of ammonium nitrate originating in Russia and Ukraine (OJ 2008 L 185, p. 43), the European Commission accepted undertakings coupled with a quantitative ceiling offered by the applicants.

6 Following a third expiry review, the Commission maintained the measures at issue in force by Implementing Regulation (EU) No 999/2014 of 23 September 2014 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia following an expiry review pursuant to Article 11(2) of Council Regulation (EC) No 1225/2009 (OJ 2014 L 280, p. 19).

7 By its Implementing Regulation (EU) 2016/415 of 21 March 2016 withdrawing the acceptance of the undertaking for two exporting producers and repealing Decision 2008/577/EC accepting an undertaking offered in connection with the anti-dumping proceeding concerning imports of ammonium nitrate originating in Russia (OJ 2016 L 75, p. 10), the Commission withdrew the acceptance of the applicants’ undertakings because they were impossible to implement.

8 The applicants therefore remained subject to the anti-dumping duty applicable to the whole of Russian territory, between EUR 41.42 and EUR 47.07 per tonne according to the product type (‘the anti-dumping measure’).

9 On 7 April 2017, the applicants submitted to the Commission a request for a partial interim review (‘the request for review’) pursuant to Article 11(3) of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21; ‘the Basic Regulation’).

10 The request for a review related solely to the anti-dumping measure and was based on the argument that the circumstances on which Regulation No 658/2002 was based had changed and those changes were of a lasting nature.

11 On 17 August 2017, the Commission published a notice of initiation of a partial interim review of the anti-dumping measures, limited to the examination of the anti-dumping measure (OJ 2017 C 271, p. 9; ‘the notice of initiation’). That notice of initiation concerned solely two of the circumstances relied on by the applicants: changes in the structure of sales following the withdrawal of the undertakings and significant changes in raw-material prices, notably gas, in Russia. On the same day, the Commission published another notice of initiation of partial interim review of the anti-dumping measures applicable to imports of ammonium nitrate originating in Russia, limited to the examination of injury (OJ 2017 C 271, p. 15).

12 Following clarifications provided in response to requests from the Commission and verification of such replies, the Commission sent the applicants, on 31 August 2018, a ‘general disclosure document’ setting out the essential facts and considerations on which it intended to rely in order to recommend the termination of the interim review without amending the anti-dumping measures imposed in the original regulation. On 14 September 2018, the applicants sent their comments on the general disclosure document to the Commission.

13 As a result of the partial interim review, the Commission adopted its Implementing Decision (EU) 2018/1703 of 12 November 2018 terminating the partial interim review concerning imports of ammonium nitrate originating in Russia (OJ 2018 L 285, p. 97; ‘the contested decision’).

14 In particular, in accordance with Article 11(3) of the Basic Regulation, the Commission examined whether the circumstances on the basis of which the dumping margin was established had changed, and whether such change was of a lasting nature, and found:

– that gas was the most important raw material in the ammonium-nitrate manufacturing process, representing over 60% of the total cost of production;

– that, similarly to previous investigations, domestic gas prices in Russia were regulated by the State via federal laws and did not reflect normal market conditions, where prices were principally set by production costs and profit expectations;

– that it was not possible to qualify changes in domestic raw-material prices as ‘lasting’ because such changes were normally the result of volatile market forces. In any case, gas prices in Russia, set by the State, were directly applicable to State-owned companies, such as Gazprom, which, as the largest supplier of gas in the country, acted as price-setter. In that context, the situation was similar to that which prevailed in previous investigations and, consequently, a modification of the measures adopted was not warranted on that basis;

– that other arguments put forward by the applicants, such as the withdrawal of their undertaking, an internal reorganisation of their group, Russia’s accession to the World Trade Organisation (WTO) and changes in exchange rates were not relevant to the dumping margin or the alleged lasting nature of the change of situation. In particular, the applicants had not provided sufficient evidence to prove, first, that their export price to the European Union had changed due to their withdrawal of the undertakings and, second, that the internal reorganisation of their group had resulted in a change in the normal value or domestic sales prices. The applicants had also failed to provide evidence as to how Russia’s accession to the WTO impacted on the dumping margin. Finally, currency-exchange fluctuations did not constitute a change of a lasting nature as they were influenced by multiple market forces and tended to fluctuate over time.

15 By application lodged at the Court Registry on 24 January 2019, the applicants brought the present action.

17 By document lodged at the Registry of the General Court on 3 May 2019, the association Fertilizers Europe sought leave to intervene in support of the Commission.

19 By order of 12 July 2019, the President of the First Chamber of the General Court granted Fertilizers Europe leave to intervene. The intervener lodged its statement and the parties submitted their observations on that statement within the period prescribed.

21 Following a change in the composition of the Chambers of the Court, pursuant to Article 27(5) of the Rules of Procedure of the General Court, the Judge-Rapporteur was assigned to the Fifth Chamber, to which the present case was accordingly allocated.

22 On a proposal from the Judge-Rapporteur, the Fifth Chamber of the Court adopted measures of organisation of procedure, provided for in Article 89 of the Rules of Procedure, with which the parties complied within the period prescribed.

23 The parties presented oral argument and answered the oral questions put to them by the Court at the hearing on 14 October 2020. Following the hearing, the parties and the intervener lodged further observations within the period prescribed.

– the first plea alleges that the Commission failed to take account of Russia’s accession to the WTO as a factor of change in the calculation of the applicants’ dumping margin and, in so doing, infringed its international WTO obligations, which constitutes ‘an infringement of the Treaty’;

– the second plea is divided into two parts, one claiming that the Commission, in concluding that the change of circumstances relied on by the applicants was not of a lasting nature, committed a manifest error of assessment and the other claiming that the Commission failed to provide sufficient reasons to support its conclusions, thereby infringing the applicants’ rights of defence;

– the third plea alleges that the Commission, by failing to provide its dumping calculation, infringed Article 19(2) and Article 20(2) of the Basic Regulation and the applicants’ rights of defence, and created a lack of legal certainty.

28 At the outset, it must be recalled that, according to settled case-law, the General Court is not required to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case, provided that the reasoning enables the persons concerned to know why the General Court has not upheld their arguments and, if necessary, provides the Court of Justice with sufficient material for it to exercise its power of review (see, that effect, judgment of 26 January 2017, Villeroy & Boch v Commission, C‑625/13 P, EU:C:2017:52, paragraph 72 and the case-law cited).

29 Furthermore, since the alleged absence of a change of circumstances of a lasting nature is the cornerstone of the contested decision, the Court will examine, in the first place, the first part of the second plea, seeking to ascertain whether the Commission was entitled to conclude that the change of circumstances relied on by the applicants had not taken place and the maintenance of the anti-dumping measure was therefore still necessary.

30 In the second place, the Court will examine the second part of the second plea, alleging infringement of the obligation to state reasons and infringement of the applicants’ rights of defence.

31 In the third place, the Court will examine the first plea, seeking to ascertain whether the Commission should have taken into account the accession of Russia to the WTO as a factor of change in the calculation of the applicants’ dumping margin.

32 Lastly, the Court will examine the third plea, which claims that the Commission failed to provide the applicants with its dumping calculation.

33 In the context of the first part of the second plea, the applicants submit that the Commission failed to take account, as new circumstances of a lasting nature justifying the partial interim review, of the circumstances and evidence which they produced in the context of that review.

34 The applicants note that, in their request for review, they had claimed that the following circumstances, which are of a lasting nature, warranted a partial interim review:

– more than 14 years had passed since the adoption of the original measures, based on the methodology applicable to non-market-economy countries, which Russia has not been since 2002;

– changes in their sales structure in the Union following the withdrawal of the undertakings;

– changes in their cost of production of ammonium nitrate, increase of gas prices in Russia as well as changes in the group’s corporate and sales structure on the domestic market;

– changes in the cost structure of Union producers due to a decrease of gas prices in the Union;

– the devaluation of the Russian rouble compared to the euro following the imposition of economic sanctions against Russia in March 2014.

35 The Commission recalls that the interim review was limited to two claims of lasting change of circumstances in Russia, since the applicants did not sufficiently substantiate the request for a review regarding the other alleged changes of circumstances. The scope of that intermediate examination was, moreover, undisputed by the applicants.

36 As a preliminary point, the Court notes that an anti-dumping duty is applicable only for the time and to the extent necessary to counteract dumping which causes injury.

37 In particular, according to the first subparagraph of Article 11(2) of the Basic Regulation, a definitive anti-dumping measure is to expire five years from its imposition or five years from the date of the conclusion of the most recent review which has covered both dumping and injury, unless it is determined in a review that the expiry would be likely to lead to a continuation or recurrence of dumping and injury.

38 In the words of the first subparagraph of Article 11(3) of the Basic Regulation, ‘the need for the continued imposition of measures may also be reviewed, where warranted, on the initiative of the Commission or at the request of a Member State or, provided that a reasonable period of time of at least one year has elapsed since the imposition of the definitive measure, upon a request by any exporter or importer or by the Union producers which contains sufficient evidence substantiating the need for such an interim review’.

39 The review procedure applies if there is a change in the circumstances on the basis of which the values applied in the regulation imposing the anti-dumping duties were established. The purpose of the review procedure is therefore to adapt the duties imposed to take account of an evolution in the factors which gave rise to them and the procedure therefore presupposes that those factors have altered (see judgment of 29 June 2000, Medici Grimm v Council, T‑7/99, EU:T:2000:175, paragraph 82 and the case-law cited).

40 The Commission is therefore obliged to draw the appropriate conclusions from that new factual situation, where a change of circumstances has been proved to the requisite legal standard.

41 More specifically, in the case of an interim review pursuant to the third subparagraph of Article 11(3) of the Basic Regulation, where the review request is limited in scope to dumping, the Commission may, inter alia, consider whether the circumstances with regard to dumping have changed significantly or whether existing measures are achieving the intended results in order to propose repealing, amending or maintaining the anti-dumping duty established as a result of the original investigation (see, to that effect, judgment of 28 April 2015, CHEMK and KF v Council, T‑169/12, EU:T:2015:231, paragraph 45).

42 In accordance with the second subparagraph of Article 11(3) of the Basic Regulation, ‘an interim review shall be initiated where the request contains sufficient evidence that the continued imposition of the measure is no longer necessary to offset dumping and/or that the injury would be unlikely to continue or recur if the measure were removed or varied, or that the existing measure is not, or is no longer, sufficient to counteract the dumping which is causing injury’.

43 That provision does not set out specific methodologies or detailed rules which the institutions must apply in order to carry out the investigations provided for: account is only to be taken, in determining whether the circumstances with regard to dumping and injury have changed significantly, ‘of all relevant and duly documented evidence’ (judgment of 28 April 2015, CHEMK and KF v Council, T‑169/12, EU:T:2015:231, paragraph 46).

44 It follows from those provisions that it is, in the present case, the applicants who must bear the burden of proof seeking to establish a lasting change of circumstances.

45 In this respect, the Commission has a broad measure of discretion in determining whether there is sufficient evidence in a request for an interim review to establish the need for such a review (see, to that effect, judgment of 17 December 2010, EWRIA and Others v Commission, T‑369/08, EU:T:2010:549, paragraph 79).

46 In that regard, the words ‘where warranted’, inserted in the first subparagraph of Article 11(3) of the Basic Regulation, must be interpreted as meaning that the investigating authority must, prior to initiating the procedure, examine whether there are prima facie valid and sufficient grounds justifying initiation of the review, as the Commission and the intervener rightly pointed out in their written pleadings. When questioned on that point at the hearing, the applicants did not dispute that the Commission had a wide discretion in that regard in order to focus its examination on the circumstances and evidence which justified initiating the review procedure, showing, prima facie, that there had been a change.

47 It is apparent from recital 21 of the contested decision that, in exercising its broad discretion, the Commission concluded that the applicants had not sufficiently substantiated the request for review as regards four of the six alleged changes of circumstances. In that regard, the applicants did not call that assessment into question, either by challenging the notice of initiation of the interim review or by requesting an extension of its scope. Nor, in their application, did they raise any plea expressly seeking the annulment of the notice of initiation on the ground of failure to state reasons.

48 For that reason, as is apparent from point 4 of the notice of initiation, reproduced in recital 9 of the contested decision, the Commission was right to initiate the interim review at issue solely on account of two alleged changes in circumstances relating, first, to the withdrawal of the undertaking, which would have led to a change in the group’s sales structure, and, second, to the alleged substantial increase in gas prices in Russia.

49 In that regard, it should be stated that the institutions are not obliged to adopt a position on all the arguments relied on by the parties concerned, but that it is sufficient to set out the facts and the legal considerations having decisive importance in the context of the decision (see judgment of 15 March 2018, Caviro Distillerie and Others v Commission, T‑211/16, EU:T:2018:148, paragraph 104 and the case-law cited). In the present case, the Commission nonetheless supplemented its analysis with a concise review of the circumstances relied on by the applicants and which did not fall within the scope of the interim review, namely those relating to the undertakings made by Russia concerning gas prices when it acceded to the WTO in 2012, to alleged changes in the Union producers’ cost structure, and to the sharp fall in the value of the Russian rouble compared with the euro, in order to conclude that they were not relevant or sufficiently substantiated. Those circumstances do not, therefore, form the subject matter of the present dispute.

50 The applicant’s arguments in that regard are therefore ineffective for the purposes of the assessment of the contested decision and are in any event unfounded, even had the applicants been entitled to raise the failure to state reasons for the notice of initiation at the stage of the reply.

51 In any event, neither the compatibility of the current system for regulating Russian natural gas with the undertakings of Russia in the context of the WTO, nor the alleged changes in the cost structure of Union producers can be the subject of a partial review of the imposition of dumping. Moreover, as is apparent from paragraph 36 of the contested decision, exchange-rate variations are not normally taken into consideration in the Commission’s practice as being a change of a lasting nature in the absence of factors capable of calling that interpretation into question. The existence of these elements has not been demonstrated by the applicants in the present case, since the historical data on the Russian rouble/euro exchange rate from 2008 to 2017 which they provided show that that rate has a high level of instability, even during the investigation period.

52 It is therefore in the light of those considerations that the Court must examine whether the Commission committed a manifest error of assessment in concluding, with regard to the circumstances examined in the contested decision, that there was no significant and lasting change justifying a modification of the anti-dumping measure.

The increase in the prices of natural gas in Russia and their alignment in the Union and Russia

53 The applicants claim that the prices of natural gas in Russia experienced significant growth over the last 14 years. They have more than doubled since the interim review which led to the last calculation of the applicants’ dumping margin in 2008, and even more since the anti-dumping measure was imposed in 2002.

54 According to the applicants, those increases in the prices of natural gas have not been given due consideration in the most recent expiry review of 2014. Consideration of their impact is particularly warranted now because the last time when the individual dumping margin was recalculated for the applicants, it had been established on the basis of prices that were more than 10 years old. Moreover, during the expiry review of the most recent measures in 2014, the Commission did not take account of the applicants’ export prices, in particular the reliability of the production costs on which they relied, because of the price undertakings in force at that time. Consequently, the increase in the prices of natural gas sold to consumers in Russia between the time when the current measures were calculated and 2016 has never been fully taken into consideration by the Commission.

55 In that regard, the applicants rely on two precedents, namely Council Regulation (EC) No 626/2009 of 13 July 2009 concluding the partial interim review pursuant to Article 11(3) of Regulation (EC) No 384/96 of the anti-dumping duty on imports of certain graphite electrode systems originating in India (OJ 2009 L 185, p. 16, recitals 25 to 28), and Council Regulation (EC) No 249/2008 of 17 March 2008 amending Regulation (EC) No 1425/2006 imposing a definitive anti-dumping duty on imports of certain plastic sacks and bags originating in the People’s Republic of China and Thailand (OJ 2008 L 76, p. 8, recitals 34 to 36). In those regulations, the Commission decided that price changes could constitute changes of a lasting nature.

56 In addition, according to the applicants, consumers could currently purchase gas at regulated prices from Gazprom, or unregulated, from other operators which charge prices often lower than regulated prices and which, in any event, did not follow Gazprom’s pricing policy. The applicants claim that they buy more than half of their natural gas from independent producers. As regards regulated prices, the information submitted by the applicants during the review procedure shows that the indexation system used by the government to establish the price of gas takes account of changes over time in the prices of consumer goods and services purchased and is an important means of measuring inflation.

57 Finally, the fact that price differences between the natural gas in Russia and the Union is around 50% is not due to the fact that Russian domestic prices are too low and EU prices are market-based. On the contrary, gas prices in the Union should not be used instead of gas prices paid by Russian fertiliser producers because they are not representative of the cost of natural gas in Russia. In addition, gas prices in the European Union are very inaccurate estimates of the cost of natural gas in Russia. First, the natural gas prices in the European market are not entirely controlled by supply and demand; second, unlike Russia, Europe does not have sufficient local supply of natural gas; and, third, Europe’s level of economic development is not comparable to that of Russia.

59 The Court finds that, in the present case, the question is not whether, as the applicants maintain, gas prices in Russia are per se remunerative, but whether they reasonably reflect a price normally charged on undistorted markets, without it being necessary in the present case to take a position on the intervener’s contention that price changes cannot, as such, be changes in circumstances.

60 In that regard, it is apparent from recital 26 of the contested decision that, after examining the conditions of the natural-gas market in Russia during the review investigation period, the Commission concluded, on the basis of the findings set out in recital 20 of the contested decision, that that market was still distorted, since gas prices in Russia were still regulated by the State through federal laws and therefore still did not reflect normal market conditions.

61 The gas prices set by the State directly apply to State-owned undertakings, such as Gazprom, which, by virtue of its market share of more than 50%, determines their level. In that context, the Commission considered that the situation was similar to that prevailing in previous investigations and, therefore, that an amendment of the measures under Article 11(3) of the Basic Regulation was not justified on that basis.

62 In answer to questions put by the Court at the hearing, the applicants themselves confirmed that the price of gas is still regulated by the State when it is sold by Gazprom.

63 It must be borne in mind that the Commission had based Regulation No 236/2008 on the premiss that an appreciable difference appeared between the price of gas paid on the Russian domestic market and the export price of natural gas originating in Russia, on the one hand, and that paid by the Union producers, on the other (recital 18). Since the price of natural gas on the Russian domestic market was regulated, it could not be regarded as reasonably reflecting a price normally payable in a market where costs are undistorted (recital 29).

64 In that regard, the applicants have not been able to adduce relevant and duly documented evidence, as required by the third subparagraph of Article 11(3) of the Basic Regulation, intended to show that, despite the significant difference in the previous investigation between the price of gas paid by the Union producers, on the one hand, and the price paid on the Russian domestic market and the export price of gas from Russia, on the other hand, the latter reflected prices normally charged on undistorted markets and that that difference had been reduced in such a way that it could constitute a lasting change of circumstances.

65 The applicants have merely produced before the Court a generic presentation of the pricing policy in Russia and a table reproducing price trends in Russia between 1998 and 2017. Since the price of natural gas on the Russian domestic market was regulated, such evidence is not sufficient to demonstrate that those prices may be regarded as reasonably reflecting a price normally charged in a market where costs are undistorted, and the two previous regulations relied on by the applicants and referred to in paragraph 55 above are not relevant in so far as they did not concern regulated markets. In the light of that consideration, it is not necessary to examine further the question whether price changes may constitute changes of a lasting nature.

66 In addition, as regards the argument that Gazprom no longer has the capacity to set prices with regard to independent suppliers, the applicants focused their line of argument on the fact that they purchase most of the gas from PAO Novatek, at prices lower than those charged by Gazprom.

67 It is apparent from page 53 of Novatek’s annual report, ‘PAO Novatek Annual Report 2017’, relied on by the Commission and the intervener, that that company itself acknowledges that ‘the [g]roup’s prices for natural gas sold are strongly influenced by the prices regulated by the government agency of the Russian Federation that carries out state regulation of prices and tariffs for goods and services of natural monopolies in energy, utilities and transportation’, which confirms that gas prices are always distorted.

68 The applicants’ argument alleging a manifest error of assessment on the part of the Commission as regards an increase in gas prices in Russia must therefore be rejected.

69 The applicants claim that, in its decision-making practice, the Commission considered withdrawal of undertakings to be a lasting change entailing consequences for the dumping calculation.

70 The Commission’s practice in previous decisions also shows that mere changes in the structure of export sales, such as the cessation of direct sales, or the introduction of a related company into the sales chain, were regarded as changes of a lasting nature.

71 In particular, in the present case, the applicants point out, in the first place, that, after the withdrawal of the undertakings, all sales to the Union were made through Acron Switzerland, the sales subsidiary in Switzerland, as opposed to direct sales prior to the withdrawal of the undertakings. That fact is important because it shows, above all, the applicants’ long-term investment in the European market.

72 In the second place, the applicants’ price for ammonium nitrate sold in the Union is based on market prices for this raw material which vary throughout the year. Furthermore, the fact that all sales have, since the withdrawal of the undertakings, been made through the sales subsidiary and not directly resulted in a change in sales, general and administrative costs and in the normal value, which plays an important role in the calculation of the anti-dumping margin. That fact alone justifies recalculating the applicants’ dumping margin by relying, in the calculation, on the change in the export price pursuant to Article 2(9) of the Basic Regulation.

73 In the third place, the volumes and price of ammonium nitrate sold by the applicants on the domestic market between 2008 and 2016 changed. In particular, the prices charged by the applicants in Russia more than doubled, while volumes remained stable.

74 The applicants also claim that there was a national reorganisation of the structure of their sales, which had an effect on general and administrative expenditure connected with sales and, consequently, on the normal value and on the dumping margin.

75 The Commission and the intervener dispute that the withdrawal of the undertakings may constitute a lasting change of circumstances.

76 In the first place, the Court notes that the Commission’s decision-making practice concerning the withdrawal of undertakings, put forward by the applicants, is illustrated only by a decision, namely Commission Decision 2006/37/EC of 5 December 2005 accepting an undertaking offered in connection with the anti-dumping and anti-subsidy proceedings concerning imports of sulphanilic acid originating in India (OJ 2006 L 22, p. 52), which is not, in itself, relevant, as it involved a case, as the Commission rightly pointed out, concerning the effects of an anti-absorption investigation for the reinstatement of an undertaking. That factual context is therefore in no way comparable to that of the present case.

77 In the second place, Article 8(1) of the Basic Regulation provides that, where a provisional affirmative determination of dumping and injury has been made, the Commission may accept satisfactory voluntary undertaking offers submitted by any exporter to revise its prices or to cease exports at dumped prices, if it is satisfied that the injurious effect of the dumping is thereby eliminated. In such a case and as long as such undertakings are in force, duties imposed by the Commission shall not apply to imports by the companies referred to in the decision accepting undertakings.

78 The purpose of the procedure of undertakings is therefore to give entities an alternative to the imposition of anti-dumping duties in the same circumstances which justify the imposition of such duties, in particular since, in cases where acceptance of the undertaking is withdrawn, the anti-dumping duty is once again automatically applied. It is therefore common ground that the circumstances giving rise to the application of an anti-dumping duty are the same as those which may give rise to the presentation of undertakings. Following the same logic, the withdrawal of undertakings cannot, in itself, have any bearing on the circumstances which justified the imposition of an anti-dumping duty, which remain the same, except as regards the aspects which led to the withdrawal of those undertakings.

79 As regards the applicants’ first argument, namely the creation of the Swiss subsidiary as an expression of their long-term investment in the European market in order to reinforce their contacts, that cannot, in the present case, constitute a circumstance which could, in itself, influence the dumping margin. In particular, the applicants have not shown how their reinforced undertaking on the European market influenced the factors which gave rise to the application of the anti-dumping duty, that is to say, the comparison between the normal value and the export prices.

80 As regards the claim that the price of ammonium nitrate sold by the applicants in the European Union is ‘based on market prices of this raw material, which vary throughout the year’, it is sufficient to note that export prices are matters which fall entirely within the scope of the undertakings’ assessment and that the applicants have adduced no convincing evidence in support of their claim.

81 As regards the argument that all sales are, since the withdrawal of the undertakings, made through the Swiss subsidiary instead of being made directly, which constitutes a change in itself capable of justifying the new calculation of the applicants’ dumping margin on the basis of Article 2(9) of the Basic Regulation, the Court makes the following observations.

82 The question of the methodology to be used to calculate the dumping margin becomes relevant only if a significant and lasting change of circumstances has been demonstrated. A change in the sales structure may, in principle, be included in all the relevant and duly documented elements, enabling the Commission to assess, first, the need to maintain or amend an anti-dumping measure and, second, the likely development of the situation in order to assess the possible impact of a cancellation or modification of that measure (see, to that effect, judgment of 28 April 2015, CHEMK and KF v Council, T‑169/12, EU:T:2015:231, paragraphs 66 and 77). In contrast, if it were sufficient to modify the sales structure in order to request a recalculation of the anti-dumping duty according to a different methodology, that would mean that the lasting change criterion would be fulfilled automatically, and the Commission would thus have no discretion in that regard in the context of a partial interim review procedure.

83 That consideration applies a fortiori in the present case, for two reasons. In the first place, the applicants themselves have acknowledged on several occasions that the change in the sales structure followed the withdrawal of the undertakings. The use of the Swiss subsidiary for sales in the European Union, which existed since 2009, began shortly after the withdrawal of the undertakings. In the second place, the applicants were not in a position to provide other economic justifications for the change in the sales structure.

84 There is therefore no plausible alternative explanation in the present case that could prevent the establishment of a causal link between the change in the sales structure and the request to use a different methodology to recalculate the dumping margin (see, by analogy, judgment of 26 January 2017, Maxcom v Chin Haur Indonesia, C‑247/15 P, C‑253/15 P and C‑259/15 P, EU:C:2017:61, paragraphs 101 to 103).

85 The arguments concerning changes in the sales structure following withdrawal of the undertakings must therefore be rejected as being unfounded.

86 In conclusion, since the applicants have not adduced relevant and duly documented evidence, the Commission did not make a manifest error of assessment in concluding that no significant and lasting change of circumstances within the meaning of Article 11(3) of the Basic Regulation had taken place.

The alleged infringement of the obligation to state reasons and of the rights of the defence

88 In the second part of the second plea, the applicants complain that the Commission failed to fulfil its obligation to state reasons under Article 296 TFEU and Article 41 of the Charter of Fundamental Rights of the European Union by failing to provide a clear and unequivocal statement of reasons for the contested decision, so as to enable the persons concerned to ascertain the reasons for the measures taken and to enable the court having jurisdiction to exercise its power of review. Moreover, during the administrative procedure, the Commission did not give the undertakings concerned the opportunity effectively to make known their views on the correctness and relevance of the facts and circumstances alleged.

89 In particular, first, the contested decision does not state the reasons why the criterion of change of circumstances is not satisfied and, second, the general disclosure document responds in only three short paragraphs to the six lasting circumstances relied on by the applicants in their request for an interim review.

90 In that regard, the reasons relied on in the request for an interim review were not examined sufficiently in the general disclosure document and were not clarified with regard to the applicants in the administrative procedure before the adoption of the contested decision. Consequently, the applicants were unable effectively to make known their views during the procedure which led to the contested decision, which resulted in an infringement of the rights of the defence.

91 The Commission and the intervener take the view that the general disclosure document received by the applicants contains all the facts and considerations which the Commission considered essential and on the basis of which it intended to terminate the interim review at issue.

92 In that regard, the Court notes that the undertakings affected by an investigation preceding the adoption of an anti-dumping regulation must be placed in a position in which they could 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 4 March 2010, Sun Sang Kong Yuen Shoes Factory v Council, T‑409/06, EU:T:2010:69, paragraph 134).

93 In accordance with Article 20(2) of the Basic Regulation, the applicants received a general disclosure document, dated 3 August 2018, which contained the facts and considerations which the Commission considered essential and on the basis of which it intended to terminate the interim review at issue, to which they replied by letter of 14 September 2018.

94 However, according to the case-law, an alleged failure to take into account the applicant’s comments does not constitute a breach of its rights of defence or its right to be heard. Observance of those rights cannot require the EU institutions to share the point of view of the undertakings concerned. Although respect for those rights requires the EU institutions to allow the interested parties to make their submission of views effectively known, it is necessary only that they have been submitted in good time so that the EU institutions may take cognisance of them and assess, with all the requisite attention, their relevance for the content of the measure being adopted (see judgment of 12 December 2014, Crown Equipment (Suzhou) and Crown Gabelstapler v Council, T‑643/11, EU:T:2014:1076, paragraph 43 and the case-law cited).

95 It should also be borne in mind that the Commission is not required to respond, in a regulation fixing definitive anti-dumping duties, to all of the arguments advanced by the interested parties during the investigation procedure and that that failure to respond does not automatically establish a failure to consider those arguments. On the contrary, it is sufficient for the Commission to set out the facts and the legal considerations having decisive importance in the scheme of the contested regulation (judgments of 13 September 2010, Whirlpool Europe v Council, T‑314/06, EU:T:2010:390, paragraph 114, and of 30 June 2016, Jinan Meide Casting v Council, T‑424/13, EU:T:2016:378, paragraph 126). That case-law is a fortiori applicable to a decision to terminate a partial review.

96 That applies all the more with regard to some of the circumstances, namely the classification of Russia as a market economy and its accession to the WTO, the change in the cost structure of producers in the Union and the fall in value of the Russian rouble, which were not considered by the Commission to constitute, prima facie, ‘sufficient evidence’ to establish the need for an interim review pursuant to the application of the second subparagraph of Article 11(3) of the Basic Regulation.

97 Furthermore, as has already been explained in paragraph 49 above, the Commission went beyond its obligation to state reasons by treating them, albeit briefly and concisely, in the general disclosure document and in the contested decision.

98 Second, as regards the changes in the prices of the raw material, the Commission explained, in points 19 and 20 of the general disclosure document, and in recitals 20, 28 and 29 of the contested decision, the reasons why it considered that the applicants had not demonstrated any significant and lasting change.

99 The Commission also explained, in point 21 of the general disclosure document, that the applicants had not produced any satisfactory evidence that the reorganisation of the sales system following the withdrawal of the undertakings had resulted in a change in the normal value or in the prices of sales on the domestic market.

100 Apart from the generic challenges contained in their letter of 14 September 2018, the applicants have not demonstrated that they produced such evidence, which led the Commission to confirm, in recital 21 of the contested decision, the finding made in the general disclosure document.

101 Thus, the Commission gave the applicants full information on the essential facts and considerations on the basis of which it made its conclusions or refused to take into account the observations, the arguments and the evidence submitted.

102 It follows that no infringement of the obligation to state reasons or any impairment of the exercise of the rights of the defence can be found in the present case.

104 In the context of the first plea, the applicants claim that the Commission failed to take account of changes in the price of natural gas resulting from the undertakings given by Russia when it acceded to the WTO as a factor of change for the purpose of calculating the applicants’ dumping margin. In so doing, and by stating that Russia was not complying with the Protocol on the Accession of the Russian Federation to the WTO of 16 December 2011 (‘the Protocol’), the Commission infringed the international obligations under Article VI of the General Agreement on Tariffs and Trade (‘the GATT’) and Article II of the Agreement on Implementation of Article VI of GATT 1994 (‘the Anti-Dumping Agreement’), which constitutes an infringement of the EU Treaty.

105 The applicants stated that, in 2012, Russia acceded to the WTO. On that occasion, it undertook to ensure that, from the date of accession, the country’s producers and distributors of natural gas act on the basis of normal commercial considerations, focused on the recovery of costs and making a profit. Those undertakings by Russia were then incorporated into Article 2 of the Protocol. Consequently, since the accession protocols form an integral part of the WTO Agreement, those obligations are just as binding as all the other obligations contained in the GATT and the other WTO agreements, such as the Anti-Dumping Agreement.

106 According to the applicants, in the absence of evidence to the contrary, the Commission should assume that Russia abided with the undertakings given in the Protocol. On the other hand, by arguing that Russia did not comply with the Protocol and acted contrary to Article VI of the GATT and Article II of the Anti-Dumping Agreement, the Commission failed to fulfil its international obligations, which amounts to an infringement of the EU Treaty.

107 The Commission, supported by the intervener, disputes those arguments and states, in the defence, that it did not conclude, and that it is not a question of concluding, that Russia was not complying with its WTO obligations. Such a finding was not the subject of the investigation and could not contribute to the factual analysis of the functioning of the gas-pricing system on the Russian market, or to the assessment of the evidence whether or not a change of circumstances was lasting.

108 As a preliminary point, the Court finds that the question of compliance by Russia with the WTO did not, contrary to what is claimed by the applicants, form the subject of an assessment by the Commission, since the Commission did not conclude anywhere in the contested decision that ‘Russia ha[d] not abided by its commitment with respect to its natural gas industry’, nor did it state that ‘Russia [did] not comply with [the Protocol]’.

109 The verification of compliance by Russia with its undertakings did not form part of the subject matter of the partial review procedure, which, as is apparent from recital 18 of the contested decision, was intended solely to verify whether, on the substance and in accordance with Article 11(3) of the Basic Regulation, ‘the circumstances on the basis of which the current dumping margin was established have changed, and whether such change was of a lasting nature’.

110 With regard to a possible infringement of the EU Treaty, arising from an infringement by the Commission of the WTO agreements, it follows from settled case-law that those agreements have the effect of binding the Union (see, to that effect, judgments of 12 December 1972, International Fruit Company and Others 21/72 to 24/72, EU:C:1972:115, paragraph 18, and of 7 May 1991, Nakajima v Council, C‑69/89, EU:C:1991:186, paragraph 29), but that, taking account of their nature and purpose, they are not in principle among the rules in the light of which the Court is to review the legality of measures adopted by the EU institutions (judgments of 16 July 2015, Commission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraph 38; of 15 November 2018, Baby Dan, C‑592/17, EU:C:2018:913, paragraph 66; and of 19 September 2019, Zhejiang Jndia Pipeline Industry v Commission, T‑228/17, EU:T:2019:619, paragraph 99).

111 In that regard, the Court has held that to accept that the Courts of the Union have the direct responsibility for ensuring that EU law complies with the WTO rules would deprive the Union’s legislative or executive bodies of the discretion which the equivalent bodies of the Union’s commercial partners enjoy (see, to that effect, judgment of 16 July 2015, Commission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraph 39).

112 However, in two exceptional situations, which are the result of the EU legislature’s own intention to limit its discretion in the application of the WTO rules, the Court has accepted that it is for the Courts of the Union, if necessary, to review the legality of an EU measure and of the measures adopted for its application in the light of the WTO agreements (judgment of 16 July 2015, Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraph 40; see also, to that effect, judgments of 7 May 1991, Nakajima v Council, C‑69/89, EU:C:1991:186, paragraphs 29 to 32; and of 9 January 2003, Petrotub and Republica v Council, C‑76/00 P, EU:C:2003:4, paragraphs 55 and 56).

113 This would be, in the first place, a situation in which the Union intended to implement a particular obligation assumed in the context of those agreements, an obligation which the legislature has shown the intention to implement in EU law (judgment of 16 July 2015, Commission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraph 45).

114 In the second place, this would be a case in which the act of EU law at issue refers expressly to specific provisions of those agreements (see, to that effect, judgments of 22 June 1989, Fediol v Commission, 70/87, EU:C:1989:254, paragraphs 19 to 22; of 7 May 1991, Nakajima v Council, C‑69/89, EU:C:1991:186, paragraphs 29 to 32; and of 30 September 2003, Biret et Cie v Council, C‑94/02 P, EU:C:2003:518, paragraph 73).

115 In the present case, it is not apparent from any of the provisions of the contested decision that it was adopted by the Union in order to meet international obligations or to implement particular obligations undertaken in the context of the WTO agreements, or that it refers expressly to specific provisions of those agreements. As has already been stated in paragraph 109 above, the object and purpose of the contested decision were to terminate a procedure intended to verify the existence of a change of circumstances such as to justify the re-evaluation of the anti-dumping measures previously in place.

116 Nor is it possible to determine what would be the particular obligation for the Commission to derive from the wording of paragraph 132 of the Working Group Report on the Accession of Russia to the WTO of 17 November 2011, relied on by the applicants. It merely provides for Russia’s undertaking that ‘upon accession, producers/distributors of natural gas in the Russian Federation would operate, within the relevant regulatory framework, on the basis of normal commercial considerations, based on recovery of costs and profit’.

117 Accordingly, the first plea in law, alleging infringement of international obligations in the context of the WTO, must be rejected as being unfounded.

The Commission’s refusal to disclose to the applicants the final calculation of the dumping margin

118 In the third plea, the applicants complain that the Commission failed to communicate to them the final calculation of the dumping margin, even though that calculation served as the basis for the findings relating to the continuation and existence of dumping, the lasting nature of the change of circumstances and the termination of the partial interim review. According to the applicants, if the Commission had communicated that calculation to them, they could have defended their rights more effectively, both with respect to the dumping calculation and the findings of dumping as a whole and the calculation methodology used in the original investigation, which could have had a considerable impact on their legal situation.

119 In particular, the applicants submit that the Commission infringed Article 19(2) and Article 20(2) of the Basic Regulation, the applicants’ rights of defence and the principle of legal certainty, by failing to provide the applicants with a meaningful summary of the evidence collected during the investigation or the considerations on the basis of which the Commission proposed to amend the applicants’ anti-dumping margin.

121 In that regard, the Court notes that the need to carry out the review of a measure in force is subject to the finding, first, that the circumstances concerning the dumping have significantly changed and, second, that those changes are lasting. It suffices for either of those cumulative conditions not to be satisfied for the institutions to be able to conclude that there is a need to continue to impose that measure in force.

122 If the institutions concerned conclude that the change of circumstances on which the author of the review request relies is not lasting, they may refrain, in the review procedure, from precisely calculating the dumping margin (see, to that effect, judgment of 8 April 2015, CHEMK and KF v Council, T‑169/12, EU:T:2015:231, paragraph 51). It would be pointless to carry out a detailed retrospective assessment and, therefore, as regards the dumping, a detailed calculation of the dumping margin in circumstances where it has not been shown that there are lasting changes in circumstances which justify such a calculation. The same is clearly the case when it has not been shown that the circumstances concerning dumping have changed significantly.

123 In the present case, as the Commission and the intervener rightly point out, it is apparent from recitals 11, 18 to 28 and 31 of the contested decision that, in the context of the request for an interim review, the Commission merely assessed a possible change of the circumstances on the basis of which the current dumping margin had been established and determined whether that change was of a lasting nature. In that context, given that the conclusion indicated the absence of lasting changes, it was not necessary to establish a new dumping margin.

124 The Commission was therefore right not to consider it necessary to determine a new dumping margin.

127 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.

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

2. Orders Acron PAO, Dorogobuzh PAO and Acron Switzerland AG to bear, in addition to their own costs, those incurred by the European Commission and by Fertilizers Europe.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Acron and Others v Commission (Dumping - Imports of ammonium nitrate originating in Russia - Judgment) [2021] EUECJ T-45/19 (05 May 2021) URL: http://www.bailii.org/eu/cases/EUECJ/2021/T4519.html Cite as: EU:T:2021:238, [2021] EUECJ T-45/19, ECLI:EU:T:2021:238

Court of Justice of the European Communities (including Court of First Instance Decisions)