Judgment of the General Court Fourth Chamber, Extended Composition, 14 December 2022, PT Wilmar Bioenergi Indonesia and Others v Commission, T-111/20

• Date: 14 December 2022
• Year: 2022

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VIII. COMMON COMMERCIAL POLICY: ANTI-SUBSIDIES

Judgment of the General Court (Fourth Chamber, Extended Composition), 14 December

2022, PT Wilmar Bioenergi Indonesia and Others v Commission, T-111/20

Link to the full text of the judgment

Subsidies – Imports of biodiesel originating in Indonesia – Implementing Regulation (EU) 2019/2092 –

Definitive countervailing duty – Article 3(1)(a) of Regulation (EU) 2016/1037 – Financial contribution –

Article 3(2) of Regulation 2016/1037 – Benefit – Article 7(1)(a) of Regulation 2016/1037 – Calculation of the

amount of the countervailable subsidy – Article 3(1)(a)(iv) and (2) of Regulation 2016/1037 – Action

consisting in ‘entrusting’ or ‘directing’ a private body to carry out a function constituting a financial

contribution – Less than adequate remuneration – Income or price support – Article 28(5) of Regulation

2016/1037 – Use of available information – Article 3(2) and Article 6(d) of Regulation 2016/1037 – Benefit

– Article 8(8) of Regulation 2016/1037 – Threat of material injury to the Union industry – Article 8(5) and

(6) of Regulation 2016/1037 – Causal link – Attribution analysis – Non-attribution analysis

At the end of an anti-subsidy investigation initiated in 2018, the European Commission adopted

Implementing Regulation 2019/2092 imposing a definitive countervailing duty on imports of biodiesel

originating in Indonesia (‘the product under consideration’).

The Indonesian companies PT Wilmar Bioenergi Indonesia, PT Wilmar Nabati Indonesia and PT Multi

Nabati Sulawesi, which produce biodiesel and export it to the European Union, brought an action for

annulment of that implementing regulation.

In dismissing their action, the General Court clarifies the scope of several concepts in Basic Anti-

Subsidy Regulation 2016/103.

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In addition, it examines the impact of imports of biodiesel from

Argentina on the causal link between imports of biodiesel originating in Indonesia and the threat of

material injury to Union industry.

Findings of the Court

First of all, the Court rejects the complaint alleging a manifest error of assessment on the part of the

Commission inasmuch as it concluded that the payments made by the Oil Palm Plantation Fund, a

public body, to Indonesian biodiesel producers, constituted a ‘financial contribution’ by a government

in the form of a direct transfer of funds, in accordance with Article 3(1)(a)(i) of the basic anti-subsidy

regulation.

In that regard, the Court observes, first, that the concept of ‘financial contribution by a government’

within the meaning of that provision contains no details as to the origin of the funds transferred and

thus covers all the financial means a government may actually use. It follows that the origin of the

funds paid by the government to biodiesel producers has no bearing on their classification as a

financial contribution. Moreover, the fact that those funds come from the export levy paid by

exporting producers does not mean that when they are transferred to biodiesel producers there is no

cost for the body which pays them.

Second, the Court states that in order to determine whether a direct transfer of funds may justify

the imposition of a countervailing duty, the absence of consideration, or of equivalent

consideration, on the part of the undertaking receiving th at transfe r must b e taken into account. In

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Regulation (EU) 2016/1037 of the European Parliament and of the Council of 8 June 2016 on protection against subsidised imports from

countries not members of the European Union (OJ 2016 L 176, p. 55), as amended by Regulation (EU) 2018/825 of the European Pa rliament

and of the Council of 30 May 2018 (OJ 2018 L 143, p. 1) (‘the basic anti-subsidy regulation’).