Methanol Holdings (Trinidad) Ltd v European Commission.

• Jurisdiction: European Union
• Court: General Court (European Union)
• Date: 14 September 2022

JUDGMENT OF THE GENERAL COURT (Eighth Chamber, Extended Composition)

14 September 2022 (*)

(Dumping – Imports of mixtures of urea and ammonium nitrate originating in Russia, Trinidad and Tobago and the United States – Implementing Regulation (EU) 2019/1688 – Article 3(1) to (3) and (5) to (8) of Regulation (EU) 2016/1036 – Sales through related companies – Construction of the export price – Injury to the Union industry – Calculation of price undercutting – Causal link – Article 9(4) of Regulation 2016/1036 – Calculation of the injury margin – Injury elimination)

In Case T‑744/19,

Methanol Holdings (Trinidad) Ltd, established in Couva (Trinidad and Tobago), represented by B. Servais and V. Crochet, lawyers,

applicant,

v

European Commission, represented by G. Luengo and P. Němečková, acting as Agents,

defendant,

supported by

Achema AB, established in Jonava (Lithuania), represented by B. O’Connor and M. Hommé, lawyers,

and by

Grupa Azoty S.A., established in Tarnów (Poland),

Grupa Azoty Zakłady Azotowe Puławy S.A., established in Puławy (Poland),

represented by B. O’Connor and M. Hommé, lawyers,

interveners,

THE GENERAL COURT (Eighth Chamber, Extended Composition),

composed of M. van der Woude, President, J. Svenningsen, R. Barents (Rapporteur), T. Pynnä and J. Laitenberger, Judges,

Registrar: I. Kurme, Administrator,

having regard to the written part of the procedure,

further to the hearing on 18 January 2022,

gives the following

Judgment

1 By its action under Article 263 TFEU, the applicant, Methanol Holdings (Trinidad) Ltd, seeks annulment of Commission Implementing Regulation (EU) 2019/1688 of 8 October 2019 imposing a definitive anti-dumping duty and definitively collecting the provisional duty imposed on imports of mixtures of urea and ammonium nitrate originating in Russia, Trinidad and Tobago and the United States of America (OJ 2019 L 258, p. 21; ‘the contested implementing regulation’).

Background to the dispute

Administrative procedure

2 On 13 August 2018, following a complaint, the European Commission published a notice of initiation of an anti-dumping proceeding concerning imports of mixtures of urea and ammonium nitrate (‘UAN’) originating in Russia, Trinidad and Tobago and the United States of America (OJ 2018 C 284, p. 9).

3 The investigation into dumping and injury covered the period from 1 July 2017 to 30 June 2018 (‘the investigation period’). The examination of trends relevant for the assessment of injury covered the period from 1 January 2015 to 30 June 2018 (‘the period considered’).

4 The product under investigation corresponded to mixtures of UAN in aqueous or ammoniacal solution that may have additives, currently falling under CN code 3102 80 00 (‘the product concerned’).

5 The applicant, a company governed by the law of Trinidad and Tobago, is active in the production and sale of mixtures of UAN. During the investigation period, the applicant sold UAN to a related customer in the European Union, namely Helm AG (‘HAG’). The latter then sold UAN to independent customers in the European Union and to two related customers located in the European Union, namely Helm Engrais France (‘HEF’) and Helm Iberica (‘HIB’). The applicant is the only cooperating exporting producer in Trinidad and Tobago and its exports represented 100% of the exports from that country during the investigation period.

6 On 10 April 2019, the Commission adopted Implementing Regulation (EU) 2019/576 imposing a provisional anti-dumping duty on imports of mixtures of UAN originating in Russia, Trinidad and Tobago and the United States of America (OJ 2019 L 100, p. 7; ‘the provisional implementing regulation’).

7 On 11 April 2019, a disclosure document setting out the Commission’s provisional findings was sent to the applicant, which submitted its comments on that document on 26 April 2019.

8 By letter of 12 July 2019, the Commission informed the applicant of the essential facts and considerations on the basis of which it intended to impose a definitive anti-dumping duty on imports of the product concerned originating in, inter alia, Trinidad and Tobago. In recital 88 of the document annexed to that letter, the Commission, inter alia, explained that it had decided to supplement the undercutting calculations performed at the provisional stage in the light of the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234). The applicant replied to that letter on 22 July 2019.

9 On 8 October 2019, the Commission adopted the contested implementing regulation.

10 Article 1(2) of the contested implementing regulation provides for the imposition of a definitive anti-dumping duty in the form of a fixed amount of EUR 22.24 per tonne on imports into the European Union of the product concerned produced by the applicant.

11 The applicant submitted written observations during the administrative procedure.

Summary of the grounds on which the contested implementing regulation is based

Sampling

12 As regards the sampling of Union producers, the Commission selected in the sample three Union producers, together accounting for more than 50% of the total Union production and sales volumes.

13 As regards the sampling of unrelated importers, the Commission decided that such sampling was not necessary and sent questionnaires to the three importers that had agreed to cooperate.

14 As regards the sampling of exporting producers in Russia, Trinidad and Tobago and the United States (‘the countries concerned’), only two exporting producers in Russia (namely Acron Group and EuroChem Group), one in Trinidad and Tobago (namely the applicant) and one in the United States (namely CF Industries Holdings, Inc.) agreed to cooperate and to be included in the sample. In view of the low number of responses from exporting producers, the Commission decided that sampling was not necessary.

Product concerned and like product

15 The product under investigation corresponded to mixtures of UAN in aqueous or ammoniacal solution that may have additives, falling under CN code 3102 80 00, originating in Russia, Trinidad and Tobago and the United States.

16 The Commission considered that the product concerned, the product produced and sold on the domestic market of the countries concerned and the product produced and sold in the Union by the Union industry constituted like products.

Dumping

17 As regards the normal value of the products concerned produced by exporting producers in Trinidad and Tobago, the Commission found that the applicant appeared to be the only producer of the product concerned in that country during the investigation period.

18 In the applicant’s case, since there were no sales of a like product on the domestic market, the Commission constructed the normal value in accordance with Article 2(3) and (6)(b) 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’). The normal value was constructed by adding to the average cost of production of the like product of the cooperating exporting producer during the investigation period (i) the actual amounts of the selling, general and administrative (‘SG&A’) expenses applicable to production and sales, in the ordinary course of trade, of the same general category of products incurred by the applicant in the domestic market of Trinidad and Tobago, and (ii) the actual amount of profit applicable to production and sales, in the ordinary course of trade, of the same general category of products realised by the applicant in the same domestic market.

19 In order to determine the export price, the Commission found that the applicant exported to the Union only via related companies acting as importers in the investigation period. All sales to the Union were carried out via a related importer in Germany. That related importer sold the product concerned to independent customers in Germany or to related companies in France and Spain, which in turn sold the product concerned to independent customers on their respective national markets. Therefore, the export price was established on the basis of the price at which the imported product was first resold to independent customers in the Union, in accordance with Article 2(9) of the basic regulation. In this case, adjustments to the price were made for all costs incurred between importation and resale, including SG&A expenses and dilution and mixing costs; and for a reasonable profit.

20 The Commission then compared the applicant’s normal value and export price on an ex-works basis. In order to ensure a fair comparison between the normal value and the export price, the Commission made adjustments pursuant to Article 2(10) of the basic regulation for discounts, rebates and differences in quantities, as well as for transport, insurance, handling, loading and ancillary costs, and credit cost.

21 Following that comparison, the Commission calculated the dumping margin for the applicant and for the other potential exporting producers. The contested implementing regulation set the dumping margin for the applicant at 55.8%.

Definition of Union industry

22 The Commission found that the like product was manufactured by 20 known producers in the Union during the investigation period. Those entities, taken together, constituted the ‘Union industry’ within the meaning of Article 4(1) of the basic regulation.

23 The Commission also recalled that three of those producers, representing over 50% of the total Union production of the like product, had been selected for the sampling of Union producers.

Injury

24 The Commission considered that a cumulative assessment of the effects of imports from the countries concerned was possible, since the criteria for such an assessment, set out in Article 3(4) of the basic regulation, were met.

25 When...