Judgment summary
This judgment follows a reference back from the Court of Justice. The applicants, Russian producers and exporters of ammonium nitrate, sought annulment of Commission Implementing Regulation (EU) 2020/2100, which extended definitive anti-dumping duties on their products for a further five years following an expiry review under Article 11(2) of Regulation (EU) 2016/1036 (2).
The General Court had initially annulled the regulation (judgment of 5 July 2023, T-126/21), finding that the Commission erred in law by relying on a 'consolidated request' that included additional information lodged after the original review request (16). On appeal, the Court of Justice set aside that judgment, holding that the Commission was entitled to take into account evidence produced, at its request, by Union producers in the three-month period preceding expiry of the measures (18, 19).
Ruling again on the whole of the single plea in law following referral, the General Court dismissed the action in its entirety (134).
Background
A definitive anti-dumping duty on imports of ammonium nitrate originating in Russia was first imposed in 1995 and had been maintained through successive expiry and interim reviews in 2002, 2008, 2014 and 2018 (3-7). The applicants remained subject to the duty throughout (8).
In June 2019 the intervener, Fertilizers Europe, requested initiation of a further expiry review under Article 11(2) of the basic regulation, based on a comparison of export prices with a constructed normal value (the 'original request') (9). In August 2019 the intervener lodged 'additional information', underpinned by a normal value based on actual Russian domestic prices (the 'commercial methodology'), which was incorporated into a 'consolidated request' (10).
On 23 September 2019 the Commission published a notice of initiation, finding sufficient evidence of a likelihood of continuation or recurrence of dumping and injury under either methodology (11, 12). Following the review investigation, the Commission adopted the contested regulation extending the measures for five years (13).
Core dispute
The applicants brought a single plea alleging infringement of Article 11(2) and (5) and Article 5(3) of the basic regulation, arguing that the Commission initiated the expiry review despite a lack of sufficient evidence (15). The plea was divided into three parts, concerning respectively whether sufficiency should be assessed against the original request alone, whether the original request contained sufficient evidence, and whether, in any event, the consolidated request (including the additional information) contained sufficient evidence (27).
The General Court initially annulled the regulation on the first part, finding the Commission wrongly relied on the consolidated request rather than the original request (16). The Court of Justice set aside that finding, holding the Commission was entitled to rely on additional evidence produced at its request before expiry of the measures (18-20).
On referral, the dispute centred on the third part of the plea: whether the consolidated request, including the additional information based on the 'commercial methodology', contained sufficient evidence of a likelihood of continuation of dumping to justify initiating the review, raising in particular whether the Commission could take the additional information into account, whether it had been provided at the Commission's request, and whether the underlying dumping-margin calculations (concerning Russian rail logistics costs, export prices to the EU, Estonia and Brazil, transport and loading cost adjustments, and bagging costs) were vitiated by errors.
Court findings
The General Court held that the first part of the single plea had to be dismissed as unfounded and the second part was ineffective, following the Court of Justice's interpretation of Article 11(2) (28). It then examined the third part, divided into three complaints.
On the legal criteria, the Court held that the standard of proof applicable at the 'preliminary' stage before initiation of a review is lower than that required at the investigation stage itself; the Commission need only ascertain whether the request for review contains sufficient evidence of a likelihood of continuation or recurrence of dumping and injury, without needing to establish that likelihood definitively (36-41).
On whether additional information could be taken into account, the Court found the distinction drawn by the applicants between the original request and the consolidated request to be 'completely artificial', since in reality there was a single request for review (47). The Commission was not obliged to check whether additional information merely supplemented or corroborated the original evidence (46). The Court also found, on the evidence including the Commission's prior response to a measure of organisation of procedure and the wording of recitals 20 and 23 of the contested regulation, that the additional information had in substance been sought by the Commission via a 'deficiency process', so the applicants' argument that it was not provided 'at the Commission's request' was rejected (53-65).
On the sufficiency of the evidence based on the commercial methodology, the Court rejected, in turn, arguments concerning: Russian rail logistics costs and the EXW/FOB basis of domestic prices (80-86); export prices to the European Union, including the use of 'sanitised' Eurostat figures (87-96); export prices to Estonia (97-103); export prices to Brazil (104-114); adjustments for transport and loading costs (116-124); and an argument on bagging costs, which was rejected as an inadmissible new argument raised only at the referral stage (125-131).
Having found the evidence based on the commercial methodology sufficient, the Court held it unnecessary to examine the sufficiency of the evidence based on the constructed normal value method, rejecting that complaint as ineffective (133).
Outcome
The action was dismissed in its entirety (134). The applicants were ordered to bear their own costs and to pay those of the European Commission and of the intervener, Fertilizers Europe, in the proceedings before the General Court (T-126/21 and T-126/21 RENV) and in the appeal proceedings before the Court of Justice (C-554/23 P and C-568/23 P) (137).
Major issues / areas of contention
- Whether the standard of proof required to justify initiation of an expiry review under the second subparagraph of Article 11(2) of Regulation (EU) 2016/1036 is lower than that required at the investigation stage itself.
- Whether the Commission could rely on a 'consolidated request', comprising the original review request plus additional information lodged afterwards, rather than being confined to the original request alone.
- Whether additional information submitted by the complainant industry had to be shown to have been provided 'at the Commission's request' under the last subparagraph of Article 11(2) in order to be taken into account.
- Whether the dumping margin calculations based on the 'commercial methodology' (actual Russian domestic prices compared with export prices to the EU, Estonia and Brazil) contained sufficient evidence of a likelihood of continuation of dumping, despite alleged errors concerning rail logistics costs, Eurostat 'sanitisation', transport/loading adjustments and bagging costs.
- Whether a new argument concerning bagging costs, raised for the first time in the applicants' observations upon referral, was admissible.