Sveza Verkhnyaya Sinyachikha and Others v Commission (Dumping - Imports of birch plywood originating in Russia - Judgment) [2024] EUECJ T-2/22 (11 September 2024)

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( Dumping – Imports of birch plywood originating in Russia – Definitive anti-dumping duties – Implementing Regulation (EU) 2021/1930 – Adjustment – Export price – Single economic entity – Commission contracts – Normal value – Functions similar to those of an agent working on a commission basis – Article 2(10)(i) of Regulation (EU) 2016/1036 – Selling, general and administrative costs – Dividends – Management costs – Article 2(6) of Regulation 2016/1036 – Product concerned – Market segmentation – Causal link – Other injury factors – Article 3(3), (6) and (7) of Regulation 2016/1036 )

Sveza Verkhnyaya Sinyachikha NAO, established in Verkhnyaya Sinyachikha (Russia), and the other applicants whose names are set out in the annex, (1) represented by J. Iriarte Ángel, L. García López, L. Rodríguez Jiménez, F. Rodríguez González and M. Casado Abarquero, lawyers,

European Commission, represented by G. Luengo, R. Pethke and J. Zieliński, acting as Agents,

composed of M.J. Costeira, President, M. Kancheva and U. Öberg (Rapporteur), Judges,

having regard to the written part of the procedure, including the measures of organisation of procedure of 3 August 2022 and 4 July 2023,

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

1 By their action under Article 263 TFEU, the applicants, Sveza Verkhnyaya Sinyachikha NAO and the other legal persons whose names are set out in the annex, seek the annulment of Commission Implementing Regulation (EU) 2021/1930 of 8 November 2021 imposing a definitive anti-dumping duty and definitively collecting the provisional duty imposed on imports of birch plywood originating in Russia (OJ 2021 L 394, p. 7; ‘the contested regulation’).

2 The applicants are Russian exporting producers of birch plywood, which export, inter alia, to the European Union. They are part of a group of companies whose parent company, LLC Sveza-Les, acts as related distributor of the products they manufacture, on the domestic market and on the export market.

3 Following a complaint lodged on 31 August 2020 on behalf of the Union birch plywood industry by the Woodstock Consortium, in accordance with Article 5(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’), which entered into force on 20 July 2016, the European Commission initiated an anti-dumping investigation on 14 October 2020 concerning imports of birch plywood originating in Russia. It published a notice of initiation in the Official Journal of the European Union (OJ 2020 C 342, p. 2).

4 The investigation into the dumping and injury in question concerned the period from 1 July 2019 to 30 June 2020 (‘the investigation period’). The examination of trends relevant for the assessment of that injury and the causal link covered the period from 1 January 2017 to the end of the investigation period (‘the period considered’).

5 By Implementing Regulation (EU) 2021/940 of 10 June 2021 imposing a provisional anti-dumping duty on imports of birch plywood originating in Russia (OJ 2021 L 205, p. 47; ‘the provisional regulation’), the Commission imposed a provisional anti-dumping duty of 15.3% on imports of birch plywood, consisting solely of sheets of wood, each ply not exceeding 6 mm thickness, with outer plies of wood specified in subheading 441233, with at least one outer ply of birch wood, whether or not coated, originating in Russia and falling under Combined Nomenclature code (CN code) ex 44123300 (TARIC code 4412330010) (‘the product concerned’), manufactured by the applicants.

6 On 31 August 2021, the Commission disclosed the essential facts and considerations on the basis of which it intended to impose the definitive anti-dumping measures.

7 On 8 November 2021, the Commission adopted the contested regulation, by which it imposed a definitive anti-dumping duty of 15.8% on the product concerned manufactured by the applicants.

8 On 3 December 2021, the Commission adopted Implementing Decision (EU) 2021/2145 not to suspend the definitive anti-dumping duties on imports of birch plywood originating in Russia imposed by [the contested regulation] (OJ 2021 L 433, p. 19; ‘the suspension decision’).

10 The Commission, supported by the interveners, Latvijas Finieris AS and Paged Pisz sp. z o.o, contends that the Court should:

12 The first plea alleges manifest errors of assessment and infringement of Article 2(10)(i) of the basic regulation, in that, primarily, the Commission incorrectly refused to recognise the existence of a single economic entity between the applicants and Sveza-Les on the export market and adjusted the export price to take account of a commission paid by them to Sveza-Les for sales on that market. In the alternative, the applicants submit that their economic relationship with Sveza-Les is the same on the export market and the domestic market, and therefore the Commission should also have adjusted the normal value to take account of the profit margin received by Sveza-Les for domestic sales.

13 The second and third pleas both allege manifest errors of assessment and infringement of Article 2(6) of the basic regulation as regards the determination of the amount of selling, general and administrative costs (‘SG&A costs’) for the purposes of the calculation of the constructed normal value. Those pleas will be dealt with together.

14 The fourth plea and the first part of the sixth plea allege manifest errors of assessment and infringement of Article 3(2) and (6) of the basic regulation, the obligation to state reasons and the right to good administration, in that the Commission wrongly included square birch plywood in the definition of the product concerned and failed to take account of the segmentation of the square and rectangular birch plywood markets.

15 The fifth plea alleges manifest errors of assessment and infringement of Article 3(2) and (3) of the basic regulation and of the right to good administration, in that the Commission determined the volumes and prices of imports of the product concerned on the basis of unreliable data from the Statistical Office of the European Union (Eurostat).

16 The second part of the sixth plea alleges manifest errors of assessment and infringement of Article 3(7) of the basic regulation and of the right to good administration, in that the Commission failed to take account of the impact of other injury factors when assessing the causal link between the imports of the product concerned and the injury caused to the Union industry.

A. The first plea in law, regarding the analysis of the economic relationship between the applicants and Sveza-Les and regarding the adjustment of only the export price

17 The applicants submit that, according to the case-law, account must be taken of the economic reality of the relationship between a producer and a sales company. In the present case, they entrusted Sveza-Les with all the tasks relating to sales, both on the domestic market and on the market for export to the European Union, and their relationship has characteristics demonstrating the existence of a single economic entity on both markets.

18 Primarily, the applicants submit that, although Sveza-Les is a separate legal entity, it acts as an internal sales department for the applicants, both on the domestic market and on the market for export to the European Union. It is true that their relationship is determined by different contractual provisions, namely sales and purchase contracts for the domestic market, stipulating that Sveza-Les is remunerated by means of a mark-up on resales, and commission contracts for the export market, fixing a commission charged by Sveza-Les. Nevertheless, that formal difference in remuneration leads to the same economic result.

19 The applicants and Sveza-Les are also bound by management contracts, under which Sveza-Les performs the functions of the sole executive body of the applicants. The commission contracts are thus signed by Sveza-Les in its own name and on behalf of the applicants. Furthermore, those commission contracts do not reflect normal commercial conditions and the clauses contained therein do not indicate any lack of solidarity between the signatories.

20 Moreover, Sveza-Les does not sell products manufactured outside the Sveza Group and the applicants do not retain any sales function on the domestic market or on the export market.

21 The Commission therefore made manifest errors of assessment and infringed Article 2(10)(i) of the basic regulation by failing to recognise that Sveza-Les acted as the applicants’ internal sales department, within a single economic entity, on the export market, and by making an incorrect adjustment to the export price in order to deduct from that price the commission received by Sveza-Les.

22 In the alternative, the applicants submit that, in so far as the Commission was entitled to take the view that they did not form a single economic entity with Sveza-Les on the export market and that an adjustment to the export price was justified, the same must apply to the normal value, in view of the identical functions performed by Sveza-Les on both markets. The applicants also provided evidence of the determination of Sveza-Les’ remuneration for sales on the domestic market, which is based on a 15% difference between the transfer price and the resale price.

23 The Commission should therefore have made an adjustment to the normal value under Article 2(10)(i) of the basic regulation in order to take account of the margins that Sveza-Les received on domestic sales.

25 In the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, it follows from the settled case-law of the Court of Justice that the EU institutions enjoy a broad discretion, with the result that the judicial review must be limited to verifying whether the relevant procedural rules have been complied with, whether the facts relied on have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers (see judgments of 12 May 2022, Commission v Hansol Paper, C‑260/20 P, EU:C:2022:370, paragraph 58 and the case-law cited, and of 22 June 2023, Vitol, C‑268/22, EU:C:2023:508, paragraph 63 and the case-law cited).

26 In that context, the General Court’s review of the evidence on which the EU institutions base their findings does not constitute a new assessment of the facts replacing that of those institutions. That review does not encroach on the broad discretion of those institutions in the field of commercial policy, but is restricted to showing whether that evidence was able to support the conclusions reached by the institutions. The General Court must therefore not only establish whether the evidence put forward is factually accurate, reliable and consistent, but must also ascertain whether that evidence contained all the relevant information which had to be taken into account in order to assess a complex situation and whether it was capable of substantiating the conclusions reached (see judgments of 14 December 2017, EBMA v Giant (China), C‑61/16 P, EU:C:2017:968, paragraph 69 and the case-law cited, and of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 37 and the case-law cited).

27 However, as regards questions of law, the General Court carries out a comprehensive review, which includes the interpretation to be made of legal provisions on the basis of objective factors and verification of whether or not the conditions for the application of such a provision are satisfied (see, to that effect, judgments of 11 July 1985, Remia and Others v Commission, 42/84, EU:C:1985:327, paragraph 34, and of 9 November 2022, Cambodia and CRF v Commission, T‑246/19, EU:T:2022:694, paragraph 45).

28 Under Article 1(2) of the basic regulation, ‘a product is to be considered as being dumped if its export price to the [European] Union is less than a comparable price for a like product, in the ordinary course of trade, as established for the exporting country’. The first sentence of Article 2(12) of that regulation states that ‘the dumping margin shall be the amount by which the normal value exceeds the export price’.

29 It follows that the determination of a product’s normal value constitutes one of the essential steps for proving the existence of any dumping (judgment of 1 October 2014, Council v Alumina, C‑393/13 P, EU:C:2014:2245, paragraph 20; see also, to that effect, judgment of 4 February 2016, C & J Clark International and Puma, C‑659/13 and C‑34/14, EU:C:2016:74, paragraph 105).

30 The main method of determining a product’s normal value is set out in the first subparagraph of Article 2(1) of the basic regulation, which provides 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’. In other words, the normal value corresponds to the actual sales price on the domestic market of that exporting country.

31 As regards the export price, Article 2(8) of the basic regulation provides that this is the price actually paid or payable for the product when sold for export from the exporting country to the European Union.

32 Article 2(9) of the basic regulation adds that, where the export price is constructed, adjustment for all costs, including duties and taxes, incurred between the importation and resale, and for profits accruing, are to be made so as to establish a reliable export price, ‘at the Union frontier level’. The items for which adjustment are to be made include those normally borne by an importer but paid by any party, either inside or outside the European Union, which appears to be ‘associated or to have a compensatory arrangement with the importer or exporter’.

33 Furthermore, any differences between the normal value and the export price may be taken into account under the adjustments provided for in Article 2(10) of the basic regulation (see, to that effect, 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 51 and the case-law cited).

34 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. The adjustments provided for by 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).

35 That comparison is to be made at the same level of trade and in respect of sales made at, as closely as possible, the same time and with due account taken of other differences which affect price comparability. Where the normal value and the export price cannot be compared in that way, that provision states that due allowance is to be made, in the form of adjustments, for differences in factors which are claimed, and demonstrated, to affect prices and thus price comparability, in order to ensure that the comparison is made at the same level of trade (see judgment of 28 April 2022, Changmao Biochemical Engineering v Commission, C‑666/19 P, EU:C:2022:323, paragraphs 137 and 138 and the case-law cited).

36 Article 2(10) of the basic regulation provides that a fair comparison is to be made between the export price and the normal value. To that end, that provision requires that the EU institutions take into consideration any factor that might affect price comparability (judgment of 6 September 2013, Godrej Industries and VVF v Council, T‑6/12, EU:T:2013:408, paragraph 22 (not published)).

37 However, such adjustments are not made automatically. As regards the burden of proof, in accordance with the case-law, if a party claims adjustments under Article 2(10) of the basic regulation in order to make the normal value and the export price comparable for the purpose of determining the dumping margin, that party must prove that its claim is justified. Furthermore, the burden of proving that the specific adjustments listed in Article 2(10)(a) to (k) of the basic regulation must be made lies with those who wish to rely on them (see judgment of 26 October 2016, PT Musim Mas v Council, C‑468/15 P, EU:C:2016:803, paragraphs 82 and 83 and the case-law cited).

38 Where a producer claims that an adjustment of the normal value, in principle downward, or an adjustment of the export price, logically upward, applies, it is for that operator to indicate and to establish that the conditions for granting such an adjustment are satisfied. Conversely, where the EU institutions take the view that it is appropriate to apply, pursuant to Article 2(10)(i) of the basic regulation, a downward adjustment of the export price, on the ground that a sales company affiliated to a producer carries out functions comparable to those of an agent working on a commission basis, it is the responsibility of those institutions to adduce at the very least consistent evidence making it possible to establish the existence of the factor on the basis of which the adjustment was made and to determine its impact on price comparability in order to show that that condition is fulfilled (see, to that effect, judgments 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 61, and of 26 October 2016, PT Musim Mas v Council, C‑468/15 P, EU:C:2016:803, paragraph 84 and the case-law cited).

39 Among the listed factors for which adjustments can be made, where the specified conditions are met, Article 2(10)(i) of the basic regulation provides that an adjustment is to be made for differences in commissions paid in respect of the sales under consideration. That provision states that the term ‘commissions’ is to be understood to include the mark-up received by a trader of the product or the like product if the functions of such a trader are similar to those of an agent working on a commission basis.

40 It follows that, where the EU institutions have adduced consistent evidence that a distributor affiliated to a producer carries out functions comparable to those of an agent working on a commission basis, it will be for that distributor or that producer to adduce evidence that an adjustment under Article 2(10)(i) of the basic regulation is not justified, for example by demonstrating that they form a single economic entity. To that end, those economic operators could, inter alia, prove that they are not operated independently and that they are tied together by compensatory arrangements (judgment of 26 October 2016, PT Musim Mas v Council, C‑468/15 P, EU:C:2016:803, paragraph 85).

41 Where it is found that a producer entrusts tasks, which normally fall within the responsibilities of an internal sales department, to a company responsible for the distribution of its products, that one of those companies controls the other economically and that they form a single economic entity, the fact that the institutions base their decision on the prices paid by the first independent buyer to the affiliated distributor is warranted. The taking into consideration of the affiliated distributor’s prices avoids a situation whereby costs, which are clearly included in the selling price of a product when that sale is made by a sales department integrated into the producer’s organisation, are left out of account where the same sales activity is carried out by a company which is legally distinct, even though there is economic control between the producer and the distributor (see, to that effect, judgments of 10 March 1992, Canon v Council, C‑171/87, EU:C:1992:106, paragraphs 9 to 13; of 26 October 2016, PT Musim Mas v Council, C‑468/15 P, EU:C:2016:803, paragraph 41 and the case-law cited; and of 14 July 2021, Interpipe Niko Tube and Interpipe Nizhnedneprovsky Tube Rolling Plant v Commission, T‑716/19, EU:T:2021:457, paragraph 85).

42 Therefore, according to the case-law of the Court of Justice, an adjustment under Article 2(10)(i) of the basic regulation cannot be made where the producer established in a third State and its related distributor form a single economic entity, since such a distributor cannot be regarded as carrying out functions comparable to those of an agent working on a commission basis, within the meaning of that provision (judgment of 26 October 2016, PT Musim Mas v Council, C‑468/15 P, EU:C:2016:803, paragraphs 39 and 42).

43 It is in the light of the foregoing considerations that it is necessary to ascertain whether the Commission was wrong, first, to reject the applicants’ arguments that they form a single economic entity with Sveza-Les on the export market and, second, to make an adjustment only to the export price for the commission received by Sveza-Les, on the basis of Article 2(10)(i) of the basic regulation.

1. The economic relationship between the applicants and Sveza-Les on the export market

44 According to the case-law, a single economic entity exists where a producer entrusts tasks normally falling within the responsibilities of an internal sales department to a company distributing its products and where one of those companies controls the other economically (see, to that effect, judgments of 5 October 1988, Brother Industries v Council, 250/85, EU:C:1988:464, paragraph 16, and of 10 March 1992, Matsushita Electric v Council, C‑175/87, EU:C:1992:109, paragraph 12).

45 In the analysis of whether there is a single economic entity between a producer and its related distributor, it is crucial to consider the economic reality of the relationship between that producer and that distributor. In view of the requirement of a conclusion reflecting the economic reality of the relationship between that producer and that distributor, the EU institutions are required to take account of all factors relevant to the determination as to whether or not that distributor carries out the functions of an integrated sales department within that producer (see judgment of 26 October 2016, PT Musim Mas v Council, C‑468/15 P, EU:C:2016:803, paragraph 43 and the case-law cited).

46 In that regard, it has already been held that the capital structure is a relevant indicator of the existence of a single economic entity (judgment of 10 March 2009, Interpipe Niko Tube and Interpipe NTRP v Council, T‑249/06, EU:T:2009:62, paragraph 179).

47 As a preliminary point, it is common ground between the parties that the applicants are part of the same group of companies, whose parent company, Sveza-Les, is a related domestic company through which the applicants export the product concerned to the European Union.

48 In the present case, it is apparent from recitals 67, 68 and 71 of the provisional regulation and recitals 95, 97 to 106, 108 and 113 of the contested regulation that the Commission relied, in essence, on four factors in order to reject the applicants’ arguments concerning the existence of a single economic entity between them and Sveza-Les on the export market, in order to conclude that Sveza-Les operated as an agent working on a commission basis on that market, within the meaning of Article 2(10)(i) of the basic regulation, namely: (i) the existence of written contracts between the applicants and Sveza-Les, providing for the payment of a fixed commission on all the applicants’ export sales, and containing numerous clauses which showed that there was a lack of solidarity between the parties; (ii) the fact that the applicants retained certain sales functions; (iii) the fact that the management contracts concluded between the applicants and Sveza-Les did not concern sales of the products, and (iv) the system of invoicing, transfer of ownership of the products in question and accounting of revenue.

(a) The commission contracts concluded between the applicants and Sveza-Les for sales on the export market

49 In recitals 67 and 68 of the provisional regulation, and in recitals 95, 97 and 98 of the contested regulation, the Commission states that only export sales were the subject of written commission contracts. Those contracts stipulated that Sveza-Les acted as an agent entitled to a fixed commission, paid by the applicants, which was clearly defined in the contracts and actually paid. Those contracts also contained numerous clauses, which were difficult to reconcile with the idea that those companies formed a single economic entity and showed that there was a lack of solidarity between applicants and Sveza-Les, such as an arbitration clause, a clause providing that the liability of the parties to the contract was limited only in the event of force majeure whereas, in all other situations, the parties were responsible for the non-performance or improper performance of the obligations arising from the contract, in accordance with the applicable legislation of the Russian Federation, clauses governing communications between the parties and their obligations in the event of a change of name or address.

50 It is apparent from the file, and from the applicants’ responses to the questions put by the Court by way of measures of organisation of procedure, that each of the applicants concluded a commission contract with Sveza-Les. By way of example, the applicants produced commission contract No 2K, dated 9 November 2006, concluded between Sveza-Les, as commission agent, and the Open joint-stock Company ‘Fanplit’, now JSC Sveza-Kostroma, as principal (‘the commission contract’), and the amendments made to that contract, dated 10 October 2012, 1 February 2013 and 29 August 2014, set out in Annex A.8 to the application.

51 Articles 2.1 to 2.3 of the commission contract provide that the commission agent is to receive 5% of the cost of the products sold under the contracts concluded by that agent and that that amount is to include all the costs and expenses which that agent incurs in the course of following the instructions under that contract, except for transportation costs, which are paid by the principal on the basis of separate invoices. That contract also provides that that amount is to be calculated on the basis of the price of all products sold during the reporting month. The amendment of that contract on 10 October 2012 changed that remuneration to 6% of the cost of the products sold by the commission agent, determined by a formula, and provided that all the costs and expenses incurred by the commission agent in connection with its obligations under that contract, including transport costs, would be borne by the principal. That remuneration was then fixed at 8% of the cost of the products sold by the commission agent following the amendment of that contract on 1 February 2013.

52 The applicants also stated, in LLC Sveza Uralskiy’s replies to the questionnaire set out in Annex A.4 to the application and in response to the questions put by the Court by way of measures of organisation of procedure, that the amount of the commission differed in relation to each of the applicants and ranged between 5 and 8% of the selling price of the products to independent customers.

53 It is therefore not disputed that, on the market for export to the European Union, the relationship between the applicants and Sveza-Les is based on written commission contracts, under which payments from independent customers are collected by Sveza-Les, which transfers them to the applicants after deducting commission, defined as a fixed percentage of the invoice value, or that the commission was actually received by Sveza-Les.

54 The Court also notes that the commission contract contains, in Article 5.1, an arbitration clause, which provides that all disputes and disagreements between the parties arising from the contract or connected to it are to be resolved through negotiations and, if no agreement is reached, in the manner prescribed by the current legislation of the Russian Federation before the Moscow Arbitration Court (Russia). That express reference to arbitration was removed from that contract following the amendment of 10 October 2012. However, first, Article 5.1 of that contract as amended still provides that, in the absence of an agreement following negotiations, disputes or disagreements are to be resolved in the manner prescribed by the current legislation of the Russian Federation. Second, the applicants do not dispute the presence of such clauses in the commission contracts which they each signed with Sveza-Les.

55 Article 4 of the commission contract also stipulates that each party is to be liable to the other party for the non-fulfilment or improper fulfilment of the obligations arising under that contract, in accordance with the legislation of the Russian Federation, except in cases of force majeure. Furthermore, according to the third paragraph of Article 1.1.1 of that contract, where the commission agent concludes a sales and purchase contract with an independent customer, it acquires the rights and becomes obligated, even if the principal was named in the contract or had entered into a direct relationship with that customer to carry out the transaction. The second and third paragraphs of Article 1.3 of that contract also provide that, in the event of improper fulfilment of the principal’s obligation to ship the products, draw up documents in the Chamber of Commerce due to the commission agent’s failure to indicate the necessary information in the application, the commission agent is to be responsible for shipment of the products. The same applies in the event of failure to comply with the conditions of communication and deadlines by which the commission agent’s requests must reach the principal. Those provisions remained the same after the amendments made to the commission contract.

56 It is also stated, in Article 5.8 of the commission contract, which became Article 5.7 following the amendment of that contract on 10 October 2012, that if either of the parties changes its legal address, name, bank details, residence, passport and other data, it is obliged to inform the other party in writing within 10 days.

57 As the Court has already held, the presence of an arbitration clause intended to resolve contractual disputes liable to arise between the two contracting companies and the lack of solidarity between those companies presuppose not only the existence of two distinct legal persons, but also two economic entities with divergent interests, and does not appear to be reconcilable with the existence of a single economic entity and with the classification of one of those companies as an internal sales department (see, to that effect, judgments of 25 June 2015, PT Musim Mas v Council, T‑26/12, not published, EU:T:2015:437, paragraphs 61 to 63, and of 14 July 2021, Interpipe Niko Tube and Interpipe Nizhnedneprovsky Tube Rolling Plant v Commission, T‑716/19, EU:T:2021:457, paragraph 163 and the case-law cited).

58 Similarly, the presence of provisions governing communication between those companies and their obligations in the event of any change of name or address constitutes further evidence that those companies did not form a single economic entity (see, to that effect, judgment of 25 June 2015, PT Musim Mas v Council, T‑26/12, not published, EU:T:2015:437, paragraphs 62 and 63).

59 Furthermore, the existence of a contract concluded between a producer and its related distributor, providing for the payment of commissions to the latter, is an important factor in the relationship between those two companies. To disregard it would be to obfuscate part of the economic reality of that relationship (judgment of 26 October 2016, PT Musim Mas v Council, C‑468/15 P, EU:C:2016:803, paragraph 56). The existence of such a contract thus demonstrates that the relationship between an exporting producer and its related distributor is organised on the basis of normal commercial conditions (see, to that effect, judgment of 25 June 2015, PT Musim Mas v Council, T‑26/12, not published, EU:T:2015:437, paragraph 60).

60 In those circumstances, the Commission did not err in law or make manifest errors of assessment of the facts in finding that the commission contracts between the applicants and Sveza-Les, as drafted in the present case, constituted a strong indication that the functions carried out by Sveza-Les on the export market were not those of an internal sales department.

61 In recitals 95 and 99 of the contested regulation, the Commission noted that Sveza-Les provided its management services for remuneration and regularly invoiced the mills for the services rendered. It added, however, that, despite the wide range of services provided for in the management contracts, the latter did not relate to sales of the mills’ products.

62 It is apparent from the documents in the file, and from the applicants’ responses to the questions put by the Court by way of measures of organisation of procedure, that each of the applicants concluded a management contract with Sveza-Les. By way of example, the applicants produced the contract concluded between Sveza-Les, as ‘contractor’, and Sveza Uralskiy, as ‘company’ or ‘customer’, entitled ‘Contract on transfer of powers of the sole executive body of the company and provision of services on management of the company’, dated 29 December 2017 (‘the management contract’), set out in Annex A.12 to the application.

63 The Court notes that, under Articles 1 and 2 of the management contract, Sveza-Les is under an obligation to provide a certain number of services to the applicants, at a certain price, under the conditions laid down in that contract and the annexes thereto. Those services include, inter alia, the exercise of the powers of the applicants’ sole executive body (Article 2.2(a) of the management contract, which refers to Annex 1 to that contract).

64 In addition, under Annex 1 to the management contract, Sveza-Les is, inter alia, to carry out management of the current activities, make decisions on all issues of management of the applicants’ current activity, except for the issues falling within the remit of the applicants’ other bodies (Article 1.2(a) of the management contract); act on behalf of the applicants, without a power of attorney, including representing their interests in Russia and abroad, carry out transactions on behalf of the applicants (Article 1.2(c) of the management contract); Sveza-Les is entitled to sign financial and accounting documents, accounting, statistical, tax and other types of statements, and other documents relating to the applicants’ financial and economic activities (Article 1.2(e) of the management contract); manage the applicants’ assets in order to carry out their activities within the limits laid down in their articles of association (Article 1.2(f) of the management contract); and to carry out any other actions required in the exercise of the powers of the applicants’ sole executive body in accordance with the provisions of the law of the Russian Federation and the applicants’ articles of association (Article 1.2(l) of the management contract).

65 Annex 1 to the management contract also provides that the Sveza-Les’ actions must be aimed at achieving certain objectives, such as, inter alia: optimising the applicants’ management structure and processes (Article 1.3(a) of the management contract); optimising and improving technological and production processes, improving quality and competitiveness (Article 1.3(b) of the management contract); expansion of sales of the applicants’ products, formation and maintenance of interests in their products (Article 1.3(c) of the management contract). It adds, inter alia, that, in the exercise of the powers of the applicants’ sole executive body, Sveza-Les’ sole executive body, namely its general director, is to act on the behalf of Sveza-Les. The general director of Sveza-Les therefore acts on behalf of the applicants without a power of attorney, within the limits of the powers conferred on him by that contract and that annex, and is entitled to issue powers of attorney to third parties, including to persons who are not employees of the applicants, so that they can act on behalf of the applicants (Article 2.3 of the management contract). It is also expressly provided that the applicants are to give their consent to Sveza-Les to conclude contracts on behalf of the applicants in respect of Sveza-Les (Article 2.6 of the management contract).

66 It is therefore apparent from the management contract that Sveza-Les has a number of powers and can sign contracts both in its own name and on behalf of the applicants. Thus, the amendment of the commission contract on 25 April 2018 was signed, on behalf of Sveza Kostroma, by the director of the ‘Kostroma’ branch of Sveza-Les, acting on the basis of the ‘Contract on transfer of powers of the sole executive body of the company and provision of services on management of the company’, dated 29 December 2017, that is to say, the management contract between Sveza-Les and Sveza Kostroma, and on the basis of the power of attorney of 29 January 2018.

67 However, it is not apparent from the provisions of the management contract that the latter concerns the export sales of the applicants’ products.

68 Furthermore, the applicants’ arguments concerning the fact that, under the management contract, Sveza-Les signs the sales and commission contracts in its name and on behalf of the applicants does not make it possible to determine that the process of selling the product concerned to independent customers on the export market is carried out entirely by Sveza-Les, or that Sveza-Les signs all sales contracts with those customers on behalf of the applicants.

69 The applicants add that, under the management contract, they cannot take any decision without Sveza-Les’ consent, with the result that there is total solidarity between those entities, irrespective of the clauses contained in the commission contracts. However, the exercise of the powers of the applicants’ sole executive body, provided for in Article 2.2(a) of the management contract, which refers to Annex 1 to that contract, including the management of current activities and decision-making on all matters relating to that management, has certain limits. Article 1.2(a) and (b) of Annex 1 to the management contract provides for an exception for matters falling within the competence of other bodies of the applicants, whose decisions must then be implemented by Sveza-Les.

70 Furthermore, Sveza-Les, as the applicants’ parent company, has, in accordance with the management contracts, the ability to exercise the powers of the applicants’ sole executive body, and decided to conclude commission contracts with the applicants for sales on the export market, which supports the finding that the sales process on that market was not covered by those management contracts.

71 In the light of the foregoing, the Court considers that, as presented, the provisions of the management contract do not justify disregarding the clauses which are contained in the commission contract which show that there is a lack of solidarity between the applicants and Sveza-Les for sales on the export market, and do not support the conclusion that Sveza-Les in practice carries out the entire sales process in that regard.

72 In recital 68 of the provisional regulation, the Commission stated that it appeared that certain sales functions were retained by the exporting producers because of the SG&A costs incurred to that end. It reiterated, in recital 101 of the contested regulation, that one producer had indicated that at least some of the SG&A costs of the exporting producers were linked to sales functions, such as personnel costs.

73 In that regard, the applicants maintain that, although the profit and loss tables list certain costs connected with the activities surrounding the sales of the product concerned, the applicants do not, however, retain sales activities as such. They refer to Sveza Uralskiy’s profit and loss table, set out in Annex A.9 and state that that table lists the amounts of transport costs, loading costs, packing costs, commission, personnel costs and other selling costs; the selling costs in reality bring together ancillary costs relating to the transport and sales functions carried out by Sveza-Les and consist of costs incurred by the cost centres (postal and courier services only) responsible for obtaining quality certificates and for research and development, marketing and logistics operations.

74 As the Commission rightly states, it is apparent from Sveza Uralskiy’s profit and loss table, set out in Annex A.9 to the application, that costs related to sales were declared. A total amount of 423 452 287 Russian roubles (RUB) (approximately EUR 4 270 000) in respect of selling costs for the product concerned was recorded in that table, including RUB 55 062 165 (approximately EUR 560 000) in respect of ‘other’ selling costs and RUB 28 427 782 (approximately EUR 280 000) in respect of salaries. Of that total amount, an amount of RUB 116 698 815 (approximately EUR 1 180 000) was attributed to export sales of the product concerned to independent customers in the European Union, of which RUB 12 853 121 (approximately EUR 130 000) relate to ‘other’ selling costs and RUB 6 635 877 (approximately EUR 67 000) are related to salaries. In that table, there is also an amount of RUB 1 781 703 947 (approximately EUR 18 million) in respect of export sales of the product concerned to independent customers in the European Union.

75 Although the applicants claim that those amounts relate exclusively to ancillary logistics costs, the Court considers that such assertions are not sufficiently substantiated and that it cannot be inferred from the information in the file that the only sales functions retained by the applicants are limited to logistics surrounding export sales, which, moreover, are carried out solely by Sveza-Les.

76 The applicants also refer to Sveza Uralskiy’s organisation chart, set out in Annex A.3 to the application, establishing the absence of a department carrying out any sales function, and refer to Sveza-Les’ organisation chart, set out in Annex A.6 to the application, showing that Sveza-Les performs all sales functions, ranging from marketing and logistics to sales, in particular on the export market. However, the production of organisation charts showing the organisational structure of one of the applicants and Sveza-Les cannot, in itself, be regarded as sufficient to prove their claims.

77 It is true that it has already been held that a single economic entity may exist where the producer assumes part of the sales functions complementary to those of the distribution company for its products (see, to that effect, judgment of 13 October 1993, Matsushita Electric Industrial v Council, C‑104/90, EU:C:1993:837, paragraph 14). However, it is also apparent from the case-law that the producer’s retention of some of the sales functions is a factor which the Commission may, depending on the circumstances, take into account in its overall assessment when determining whether a trader forms a single economic entity with the related producer (see, to that effect, judgments of 10 March 1992, Matsushita Electric v Council, C‑175/87, EU:C:1992:109, paragraph 14; of 10 March 2009, Interpipe Niko Tube and Interpipe NTRP v Council, T‑249/06, EU:T:2009:62, paragraph 185; and of 25 June 2015, PT Musim Mas v Council, T‑26/12, not published, EU:T:2015:437, paragraphs 53 and 67 to 69).

78 The Court therefore finds that the applicants have not adduced sufficient evidence to establish that it was likely that the Commission made a manifest error of assessment of the facts when it considered, on the basis of the evidence available to it, that the applicants retained certain sales functions on the export market.

(d) The system for invoicing, for transfer of ownership of the product concerned and for tax accounting of revenue

79 In recital 68 of the provisional regulation, the Commission noted that the related trader issued the invoices in the name of the exporting producers to the first independent customers in the European Union. In recitals 102 to 104 of the contested regulation, it added that Sveza-Les issued invoices to the first independent customers in the European Union in the name of the applicants, with the result that the applicants directly invoiced those customers for the exports. Sales were recorded as revenue in their sales ledgers and ownership of the products in question passed directly from the applicants to the customers. Sveza-Les was therefore never the owner of the goods and did not record them as sales revenue, with only the commission paid by the applicants being recorded in that way.

80 Although the applicants claim that the way in which sales are framed in contractual terms or recorded in accounting terms does not reflect the economic reality of the relationship with Sveza-Les, the Court considers that, in the absence of other evidence to substantiate the commercial practice between the parties, no provision of the commission contract or of the management contract supports such assertions. The fourth paragraph of Article 1.1.1 of the commission contract expressly states that ownership of the products belongs to the principal until the disposal of the products to the independent customer. Nor do the applicants dispute that only commission is recorded as Sveza-Les’ revenue.

81 Accordingly, the Commission did not err in law or make manifest errors of assessment of the facts in taking account of the system for invoicing, transfer of ownership and accounting as indicia that Sveza-Les’ functions on the export market were not those of an internal sales department.

82 It follows from all of the foregoing that the applicants have failed to demonstrate to the requisite legal standard and in accordance with the requisite standard of proof that the Commission made manifest errors of assessment of the facts or infringed Article 2(10)(i) of the basic regulation in finding that, taken together, the factors relied on constituted a body of consistent evidence such as to preclude the related distributor, Sveza-Les, from being regarded as an internal department for their sales on the export market.

83 The applicants’ complaints in that regard must therefore be rejected as unfounded.

2. The adjustment of only the export price on the basis of Article 2(10)(i) of the basic regulation

84 As follows from the analysis carried out above, the Commission had consistent indicia to rule out the possibility that Sveza-Les could be regarded as an internal sales department of the applicants on the export market.

85 However, the Court notes that the fact that there is no single economic entity between the applicants and Sveza-Les does not necessarily mean that the conditions for the application of Article 2(10)(i) of the basic regulation are satisfied (see, to that effect, judgment of 25 June 2015, PT Musim Mas v Council, T‑26/12, not published, EU:T:2015:437, paragraph 74).

86 In addition, it has already been held that, as regards Article 2(10)(i) of the basic regulation, to be able to make an adjustment in respect of commission, the institutions must base their decision on factors capable of showing, or of giving rise to the inference, that the commission actually paid was such as to have a definite effect on the comparison between the export price and the normal value (see judgment of 26 October 2016, PT Musim Mas v Council, C‑468/15 P, EU:C:2016:803, paragraph 84 and the case-law cited; judgments 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 61; of 21 November 2002, Kundan and Tata v Council, T‑88/98, EU:T:2002:280, paragraph 95; and of 18 March 2009, Shanghai Excell M&E Enterprise and Shanghai Adeptech Precision v Council, T‑299/05, EU:T:2009:72, paragraph 274).

87 Under Article 2(10)(i) of the basic regulation, an adjustment may be made not only for differences in commissions paid in respect of the sales under consideration, but also for the mark-up received by traders of the product if they carry out functions which are similar to those of an agent working on a commission basis (see judgment of 7 February 2013, EuroChem MCC v Council, T‑84/07, EU:T:2013:64, paragraph 127 and the case-law cited).

88 The second sentence of Article 2(10)(i) of the basic regulation allows an adjustment to be made in respect of the mark-up received even if the parties do not act on the basis of a principal-agent relationship, but achieve the same economic result by acting as seller and buyer (judgments of 18 March 2009, Shanghai Excell M&E Enterprise and Shanghai Adeptech Precision v Council, T‑299/05, EU:T:2009:72, paragraph 280, and of 25 June 2015, PT Musim Mas v Council, T‑26/12, not published, EU:T:2015:437, paragraph 81).

89 Article 2(10)(i) of the basic regulation, which concerns the comparison between the normal value and the export price, focuses not on the relationship between the exporter and the distributor but on the functions carried out by the latter (judgment of 26 October 2016, PT Musim Mas v Council, C‑468/15 P, EU:C:2016:803, paragraph 88).

90 It is in the light of those principles that it is necessary to examine whether the Commission made manifest errors of assessment or errors of law when it found, first, that the applicants had not demonstrated that Sveza-Les carried out functions similar to those of an agent working on a commission basis on the domestic market and, second, that the conditions for the application of Article 2(10)(i) of the basic regulation were satisfied only in order to make the adjustment to the export price.

(a) The economic relationship between the applicants and Sveza-Les on the domestic market

91 In recital 71 of the provisional regulation and in recitals 103, 106, 108, 109, 112 and 113 of the contested regulation, the Commission stated that it had relied on the following factors to conclude that the applicants had not demonstrated that, as regards sales on the domestic market, Sveza-Les performed functions similar to those of an agent working on a commission basis for domestic sales, with the result that an adjustment to the normal value, pursuant to Article 2(10)(i) of the basic regulation, was not justified, namely: (i) the fact that there were purchase and sales contracts between the applicants and Sveza-Les, which did not contain any clause suggesting that Sveza-Les was acting as an agent or any information on the rights and obligations of the parties; (ii) the fact that Sveza-Les carried out all the sales functions; and (iii) the system for invoicing, transfer of ownership of the products in question, and for accounting of revenues.

92 As a preliminary point, as regards the second factor, the Court notes that, in recital 108 of the contested regulation, the Commission stated that all sales on the domestic market were made by Sveza-Les, which is not disputed by the applicants.

93 In recitals 106, 108 and 112 of the contested regulation, the Commission stated that sales on the domestic market were covered by purchase and sales agreements concluded between the applicants and Sveza-Les, which did not contain any clause suggesting that Sveza-Les was acting as an agent, or any information on the parties’ rights and obligations. The method for determining the purchase price or Sveza-Les’ remuneration, by way of mark-ups on sales, could also not be ascertained, since the annexes to the sales contracts containing information on payment and volume had not been communicated to the Commission or were outdated. Similarly, the alleged difference between the purchase price and the resale price and how it was calculated were not set out in writing in any of the agreements submitted to the Commission and, according to the latter, it is apparent that those data had varied from one mill to another, as well as during the investigation period.

94 In the present case, the parties do not dispute that, on the domestic market, the relationship between the applicants and Sveza-Les is, inter alia, determined by purchase and sales agreements under which Sveza-Les purchases the products in question from the applicants and resells them to independent customers.

95 By way of example, the applicants produced a supply agreement concluded between Sveza Kostroma (previously ‘Fanplit’) and Sveza-Les, entitled ‘Supply Agreement No 19/06/2006’ (‘the supply agreement’), and the amendments made to that agreement, dated 31 December 2013, 8 November 2018 and 1 October 2019, set out in Annex A.7 to the application.

96 First of all, the Court notes that the supply agreement does not specify how the price at which Sveza-Les purchases the products from the applicants is determined, or the mark-up received by Sveza-Les by way of remuneration for sales on the domestic market.

97 Article 2.2 of the supply agreement provides only for a minimum price for the products and Article 3.1 of that agreement states that payment must be made, before or after shipment of those products, by transfer of funds to the producer’s account. Following the amendment of that agreement on 8 November 2018, Article 3.1 of the supply agreement provides that the payment is to be made in roubles, by bank transfer, to the exporting producer’s account within 12 months from the date of shipment of the goods. It adds that it is possible to carry out payments in advance or mutual settlements between the parties. Article 3.3 of the supply agreement, following the amendment of 31 December 2013, also provides that the parties are to sign the ‘the statement of reconciliation of payments’ no later than the fifteenth day of the subsequent calendar month.

98 In that regard, the applicants also produced three invoices issued by Sveza-Les to independent customers and the equivalent sales invoices between one of the applicants and Sveza-Les, set out in Annex A.15 to the application, a snapshot taken during the remote cross-check of 5 March 2021, set out in Annex A.16 to the application, and Sveza Uralskiy’s replies to the questionnaire, set out in Annex A.4 to the application, and submit that those documents show that the difference between the price for the transfer of the product concerned from the applicants to Sveza-Les and Sveza-Les’ resale price to independent customers is 15%.

99 It is also apparent from Sveza Uralskiy’s replies to the questionnaire, set out in Annex A.4 to the application, that, from the perspective of pricing of products sold to Sveza-Les, the selling price is 15% lower than Sveza-Les’ resale price to an independent customer, with the exception of LLC Sveza Tyumen, for which the selling price decreased from 15 to 10% between 1 August 2019 and 11 November 2019, and then to 5% (Section D-1-5 of that annex). It is also apparent from the three invoices produced in Annex A.15 to the application that the price for Sveza-Les’ resale of the products to independent customers enables it to draw a profit margin corresponding to 15% of the resale price. The snapshot set out in Annex A.16 to the application also shows that, on the basis of the total turnover for the sales of Sveza-Manturovo’s products, the price at which Sveza-Les purchases the products from the exporting producer corresponds to the price charged by Sveza-Les for sales of the products to independent customers less 15%.

100 However, it is not apparent from those documents, or from the information in the file, that it was possible for the Commission to determine the amount of the profit margin received by Sveza-Les for the sale of the products of each of the exporting producers of the Sveza Group on the domestic market. As the Commission rightly states, it appears, however, that that margin varied from one exporting producer to another, as well as during the investigation period.

101 Next, it is true that, in Article 5.2 of the supply agreement, there is an arbitration clause, under which all disputes that may arise between the parties during the performance of that agreement are subject to the jurisdiction of the Moscow Arbitration Court. That express reference to arbitration was maintained following the amendment of that agreement on 31 December 2013, since Article 5.1 of that amended agreement still provides for the jurisdiction of the Moscow Arbitration Court.

102 In addition, Article 5.1 of the supply agreement also expressly provides that each party is to be liable to the other party for breach of the obligations arising from that agreement, under the legislation of the Russian Federation. However, that clause disappeared following the amendment of that agreement on 31 December 2013.

103 Lastly, the Court also notes that there are no provisions governing communication between the companies which are party to the supply agreement and their obligations in the event of a change of name or address.

104 The Court concludes that, as drafted in the present case and in the light of all the clauses, the sales and purchase contracts do not contain sufficient indicia to support a conclusion that Sveza-Les carries out functions similar to those of an agent working on a commission basis for services in respect of the sale of the product concerned on the domestic market.

(2) The system for invoicing, for transfer of ownership of the product concerned and for tax accounting of revenue

105 In recitals 103 and 113 of the contested regulation, the Commission noted that, on the domestic market, the applicants sold the products in question, at a transfer price, to Sveza-Les which became the owner of the products, assumed liability for them and then resold them to independent customers on an arm’s length basis. The sums paid by the independent customers to Sveza-Les were recorded by Sveza-Les as revenue, as were the mark-ups on sales. Sveza-Les also invoiced the applicants for the sales on the day an invoice to the final customer was issued.

106 The Court notes that, under Articles 1.1 and 4.1 of the supply agreement, ownership of the goods is transferred to Sveza-Les at the time when the applicants’ products are loaded onto the vehicle. Following the amendment of that agreement on 1 October 2019, Article 4.1 of the agreement states that the transfer of ownership of the goods, as well as the risk in the event of accidental loss of those goods, occurs on the date indicated on the consignment note or on the universal transfer document. Moreover, those elements are not challenged by the applicants.

107 It follows from the foregoing that the applicants have failed to demonstrate that the Commission made a manifest error of assessment of the facts or erred in law in rejecting their claims that Sveza-Les carried out functions similar to those of an agent working on a commission basis for sales on the domestic market, within the meaning of Article 2(10)(i) of the basic regulation.

(b) The conditions for the application of Article 2(10)(i) of the basic regulation which made it possible to adjust the export price

108 It is apparent from recitals 62, 66 and 67 of the provisional regulation, to which recital 34 of the contested regulation refers, that, in order to justify the adjustment of the export price on the basis of Article 2(10)(i) of the basic regulation, the Commission relied on the fact that the applicants had signed a contract providing for a clearly defined commission for each export sale, which was actually paid. According to the Commission, that was not the case on the domestic market, and therefore the resulting problem of price comparability justified deducting the commission thus paid for sales on the export market.

109 The applicants have failed to demonstrate that the way in which export sales are framed in contractual terms or recorded in accounting terms does not correspond to the economic reality of the relationship between them and Sveza-Les, or that the Commission made manifest errors of assessment of the facts in finding that Sveza-Les did not perform the same functions on the domestic market and on the export market and that its remuneration on the domestic market could not be treated as a commission for the purposes of Article 2(10)(i) of the basic regulation.

110 The applicants also argue that the difference in the organisation of sales on the domestic market and on the market for export to the European Union is for tax reasons. Sales within the Sveza Group are organised through a value added tax (VAT) refund mechanism in Russia. More specifically, the applicants claim that they had difficulties in obtaining a refund of VAT when sales of the product concerned on the export market were made on the basis of purchase and sales contracts concluded between them and Sveza-Les. The Sveza Group therefore decided to opt for commission contracts, which enable it to benefit from a VAT rate of 0% on exports. The applicants refer in that regard to the Commission’s remote cross-check report of 2 March 2021, set out in Annex A.11 to the application.

111 However, although the Commission does indeed refer to that tax explanation in its remote cross-check report, set out in Annex A.11 to the application, it must also be stated that the explanation for the organisation of sales within the Sveza Group by means of a VAT refund mechanism does not, in itself, support the conclusion that the economic reality of the relationship between the applicants and Sveza-Les was the same on the domestic market and on the export market.

112 Therefore, in view of the differences between the export market and the domestic market and in view of the body of consistent evidence capable of precluding Sveza-Les from being regarded as an internal sales department of the applicants on the export market, with Sveza-Les receiving commission for those sales, when it has not been demonstrated to the requisite legal standard and in accordance with the requisite standard of proof that the same was true on the domestic market, the Court considers that the Commission did not, in those circumstances, make manifest errors of assessment of the facts or infringe Article 2(10)(i) of the basic regulation by adjusting the export price for commission received by Sveza-Les for sales on the export market, on the basis of that provision, and by not doing so in respect of the normal value.

114 The applicants claim that, when calculating the constructed normal value for certain product control numbers (‘PCNs’), the Commission made manifest errors of assessment and infringed Article 2(6) of the basic regulation by refusing to include the dividends of Sveza Uralskiy received by Sveza-Les in the SG&A costs and by allocating to the sale of plywood on the domestic market the costs incurred by Sveza-Les related to management services.

115 In the first place, the applicants state that, in accordance with the management contracts, decisions relating to the payment of dividends are taken by Sveza-Les on behalf of LLC Sveza Uralskiy. In the present case, the dividends fall within the investigation period and correspond to part of the profit obtained by LLC Sveza Uralskiy for the production and sale of the product concerned on the domestic and on the export market, which was reallocated to Sveza-Les and recorded in the latter’s accounts. There is therefore a direct link between those dividends and the management, production and sales activities carried out by Sveza-Les on behalf of Sveza Uralskiy.

116 Therefore, according to the applicants, the dividends should have been included in the amount of SG&A costs for the purpose of calculating the constructed normal value. Such a conclusion is also apparent from the Panel report entitled – ‘United States – Final Dumping Determination on Softwood Lumber from Canada’, adopted on 13 April 2004 (WT/DS 264/R).

117 In the second place, the applicants claim that Sveza-Les provides three types of services for which it receives revenue, namely a service for the sale of plywood on the domestic market (first source of revenue), management services, for which it receives fees (second source of revenue), and commission services for sales on the export market, for which it receives commission (third source of revenue).

118 Each of those three services entail respective costs. Since Sveza-Les did not identify the SG&A costs incurred for each of the sources of revenue, the costs were allocated to the different sources of revenue on the basis of the profits and profitability of each source. The Commission accepted the allocation thus proposed for the respective costs of the sales services and commission services, but did not do so for the management services. It reallocated the latter to sales of products on the domestic market and to commission revenue for exports, despite the evidence showing that the provision of management services involved certain costs.

119 The amount of SG&A costs is therefore not based on actual data concerning the production and sales of the product concerned, in accordance with Article 2(6) of the basic regulation, but also reflects the data relating to the management services, which artificially increased the applicants’ dumping margin.

121 The first sentence of Article 2(6) of the basic regulation governs the determination of the amounts for SG&A costs and for profits and provides that they ‘shall be based on actual data pertaining to production and sales, in the ordinary course of trade, of the like product by the exporter or producer under investigation’. It is only if those amounts cannot be determined on the basis of ‘actual data’ that that provision lays down other methods of calculation.

122 Article 2(6) of the basic regulation does not specify what is meant by ‘selling’, ‘general’ and ‘administrative’ costs and does not indicate which items of costs should be regarded as such. First, ‘general costs’ are costs affecting all or almost all of the products manufactured by an undertaking. Second, ‘administrative costs’ are costs in respect of or relating to the management of the company’s business. Those costs are bound to have an impact on all the products manufactured by an undertaking, albeit to varying degrees. By their nature, they are therefore costs which will normally affect all the products manufactured or sold by an undertaking.

123 In the present case, the Court notes that the applicants do not dispute as such the choice of method for calculating the normal value. By contrast, the parties disagree as to the determination of the amount of SG&A costs, pursuant to Article 2(6) of that regulation, and, more specifically, as regards the taking into account of ‘dividends’ and ‘management costs’ when calculating the constructed normal value for certain PCNs.

124 It is apparent from recitals 75 to 83 of the contested regulation that the Commission refused to include the dividends in the amount of SG&A costs, on the ground that they had been paid by Sveza Uralksiy to Sveza-Les. The Commission states in that regulation that, since Sveza-Les was the company concerned for the purpose of determining normal value on the domestic market, the transfer of dividends was a transfer of profits generated by a company other than the company under investigation.

125 The Court notes that an examination of the structure of Article 2(6) of the basic regulation shows that the word ‘data’ is immediately preceded by the adjective ‘actual’ and followed by the phrase ‘pertaining to production and sales’ and ‘of the like product by the exporter or producer under investigation’.

126 The expression ‘actual data’ in Article 2(6) of the basic regulation is therefore clearly linked to the wording that follows, and the phrase ‘pertaining to production and sales … by the exporter or producer under investigation’ serves in particular to specify the actual data to be used in order to calculate the amount for SG&A costs for the purpose of constructing the normal value under Article 2(3) of that regulation. Thus, read as a whole, the relevant phrase states that the investigating authorities are to determine the amounts for SG&A costs and profits on the basis of the actual data which relate to, or concern, the production and sales by the exporter or producer under investigation.

127 The link between the production or sales of the product concerned and the exporting producer under investigation is therefore apparent from the very wording of Article 2(6) of the basic regulation, since that provision provides that account must be taken of the costs incurred by the exporter or producer under investigation that are genuinely related to the production and sale of the specific product under consideration.

128 In the present case, it is common ground that, in Sveza-Les’ profit and loss table, set out in Annex A.9 to the application, the applicants listed, under the heading ‘Total financial income’, an amount of RUB 800 000 000 (approximately EUR 8 080 000) in respect of dividends received by Sveza-Les during the first half of 2020.

129 Although the applicants claim that the transfer of the RUB 800 000 000 is a reallocation of the turnover directly linked to the production and sale of the product concerned, it must be noted that that is not apparent from the entry as set out in the profit and loss table. Since the amount was indicated in that table as corresponding to ‘dividends’, with no further details, the Commission was entitled to take account of the entry as reflected in that table.

130 If those dividends derive from profits made by Sveza Uralskiy, then they do not come under the sale of the product concerned as regards Sveza-Les, but were distributed to it in its capacity as sole shareholder of Sveza Uralskiy.

131 As the Commission rightly states, the payment of dividends is income from an equity investment, which must be recorded as such, as is apparent from the ‘International Financial Reporting Standards, IFRS 9, Financial Instruments’, and the applicants have not produced sufficient evidence in support of their arguments that those dividends specifically concern the production and sale of the product in question by Sveza-Les.

132 Nor have the applicants disputed that the dividends, which were paid during the first half of 2020, were for the profits made by Sveza Uralskiy as at 31 December 2019 and therefore related to the whole of 2019. Since the investigation period was from 1 July 2019 to 30 June 2020, the dividends partially overlap with it and the applicants have not clarified the share of the amount corresponding specifically to that period.

133 That interpretation of Article 2(6) of the basic regulation in paragraphs 125 and 127 above is not contradicted by the Panel report entitled ‘United States – Final Dumping Determination on Softwood Lumber from Canada’, adopted on 13 April 2004 (WT/DS 264/R).

134 In that regard, the Court notes that, in accordance with settled case-law, the provisions of the basic regulation must, so far as possible, be interpreted in the light of the corresponding provisions of the Agreement on Implementation of Article VI of the General Agreement on 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) (see, to that effect, judgments of 14 July 1998, Bettati, C‑341/95, EU:C:1998:353, paragraph 20, and of 9 January 2003, Petrotub and Republica v Council, C‑76/00 P, EU:C:2003:4, paragraph 57 and the case-law cited).

135 Furthermore, there is nothing to prevent the Court from referring to the interpretations of the Anti-Dumping Agreement by the WTO’s Dispute Settlement Body where provisions of the basic regulation have to be interpreted (judgment of 25 October 2011, Transnational Company ‘Kazchrome’ and ENRC Marketing v Council, T‑192/08, EU:T:2011:619, paragraph 36).

136 It is true that, as the applicants rightly submit, as regards the provisions of the first sentence of Article 2.2.2 of the Anti-Dumping Agreement, which, in essence, are the same as those of the first sentence of Article 2(6) of the basic regulation, the Panel stated that ‘if the [general and administrative] costs benefit the production and sale of all goods that a company may produce, they must certainly relate or pertain to those goods, including in part to the product under investigation’ (paragraph 7.265).

137 However, in that case, the Panel adjudicated specifically on whether the general and administrative costs should be directly attributable to the product under investigation or could relate more generally to all the goods produced and sold by the undertaking concerned. However, it did not answer the question of what should be done as regards dividends received by an exporting producer and reallocated to the related distributor.

138 Accordingly, the applicants have failed to demonstrate that the Commission infringed Article 2(6) of the basic regulation and made a manifest error of assessment of the facts by excluding, from the determination of SG&A costs when calculating the constructed normal value, the dividends of Sveza Uralskiy received by Sveza-Les, with the result that the applicants’ complaints in that regard must be rejected as unfounded.

139 In recitals 84 to 92 of the contested regulation, the Commission explained that Sveza-Les had, in its profit and loss table, reported the management fees received from the applicants as revenue and allocated expenses to the management contracts for which it had received the fees in question, but Sveza-Les did not trace back the costs generated by those contracts. After analysing the arguments and documents provided, the Commission considered that it was not possible to conclude with certainty that the management contracts had generated expenses which could be directly linked to the fees provided for in those contracts. It therefore decided not to take into account the expenses reported as linked to the revenues from the management contracts and decided to allocate them to other types of revenue.

140 In that regard, the Court considers that the applicants merely claim that the profitability of each source of revenue was directly supported by documentation and evidence relating directly to each source and that the provision of the management services entailed costs, without however adducing sufficient evidence to substantiate those claims.

141 Moreover, it is not apparent from the documents in Annexes A.25 and A.26 to the application that the ‘salary’ costs were paid to Sveza-Les exclusively in respect of the remuneration of its staff for the management services provided to the applicants.

142 The applicants have therefore failed to demonstrate that, by reallocating the costs attributed to management services to the services for sale of plywood on the domestic market and to the commission services for sales on the export market, the Commission failed to fulfil its obligation to take account of ‘actual data’ within the meaning of Article 2(6) of the basic regulation and made a manifest error of assessment of the facts in that regard.

143 It follows from the foregoing that the applicants have not produced sufficient evidence capable of calling into question the validity of the amount of SG&A costs that the Commission took into account when calculating the constructed normal value.

144 Consequently, the second and third pleas must be rejected in their entirety as unfounded.

C. The fourth plea in law and the first part of the sixth plea in law, alleging manifest errors of assessment of the facts and errors of law, and infringement of the obligation to state reasons and of the principle of good administration in the inclusion of square birch plywood in the definition of the product concerned

145 The applicants submit that square birch plywood and rectangular birch plywood do not have the same basic physical, technical and chemical characteristics because they differ in terms of their dimensions and shape, have different thicknesses and are manufactured using different glues. That means that they are intended for different uses and are not interchangeable, which is also supported by their significant price difference. The Commission is, moreover, inconsistent, in that it excluded pine, poplar, okoumé and beech plywood from the investigation, even though a difference in the type of wood used constitutes a difference in composition in the same way as a difference as regards the glue used.

146 There are also other relevant factors which required the exclusion of square plywood from the definition of the product concerned. That plywood is not, or is virtually not, produced or sold by Union producers, with the result that imports of that type of plywood do not compete with Union plywood and have no impact on the Union industry’s situation.

147 The applicants add that, even if were to be considered that square birch plywood may legitimately be included in the definition of the product concerned, the Commission should have taken into account the segmentation of the market for square birch plywood imported from Russia and rectangular birch plywood produced in the European Union in the context of the analysis of the injury and causal link. Russian exporting producers mainly export a semi-finished product, to be processed in the European Union, whereas Union producers make specialised, ready-to-use, higher-range and more expensive products.

148 The price undercutting calculations showed that 39% of the applicants’ sales cannot be compared to the sales of the sampled Union producers, that the sales made by the latter, which can be compared to the applicants’ sales, represent only 42% of their sales and that the average price of comparable sales of the Union producers is 14% lower than the average price of all their products. The applicants add that more than 55% of the sales of the sampled Union producers are not in competition with Russian plywood. According to the applicants, the injury suffered by the Union industry cannot therefore result from imports of birch plywood from Russia.

149 The segmentation of the plywood market is, moreover, widely accepted, as is apparent from the complaint lodged by the Woodstock Consortium and from the observations made by the Birch Plywood Alliance.

150 Therefore, by including square birch plywood in the definition of the product concerned, the Commission made manifest errors of assessment. By failing to carry out an injury and causation analysis by market segment, it also infringed Article 3(2) and (6) of the basic regulation. Furthermore, it failed to fulfil its obligation to state reasons by failing to disclose in a clear and unequivocal fashion the reasoning underlying its decision and infringed the right to good administration by failing to examine carefully and impartially all the relevant aspects of the individual case.

151 The Commission, supported by the interveners, disputes the applicants’ arguments.

152 The Court considers it appropriate to examine the applicants’ line of argument alleging, in the first place, manifest errors of assessment of the facts which vitiate the definition of the product concerned; in the second place, manifest errors of assessment of the facts and infringement of Article 3(2) and (6) of the basic regulation as regards the issue of market segmentation; and, in the third and fourth place, infringement of the obligation to state reasons and of the principle of good administration in that regard.

153 As a preliminary point, the Court notes that the concept of ‘product concerned’ in both the provisional regulation and the contested regulation constitutes the practical expression of the general concept of ‘product … considered as being dumped’, set out in Article 1(2) of the basic regulation (‘the product under consideration’), since the purpose of the contested regulation is to implement the basic regulation in the relevant sphere.

154 It follows that the constituent elements of the concept of ‘product under consideration’ for the purposes of the basic regulation necessarily determine those to be attributed to the ‘product concerned’ for the purposes of the provisional regulation and the contested regulation.

155 However, the basic regulation does not specify the scope of the concept of ‘product under consideration’, confining itself to defining, in its Article 1(4), that of ‘like product’ as being an identical product or a product having characteristics closely resembling those of the product under consideration. In addition, it is apparent from recital 3 of the basic regulation that that regulation seeks to bring the language of the Anti-Dumping Agreement into EU legislation as far as possible (judgment of 17 March 2016, Portmeirion Group, C‑232/14, EU:C:2016:180, paragraph 40).

156 In those circumstances, it is necessary to interpret the concept of ‘product under consideration’ which appears in the basic regulation in the light of that agreement and in particular in the light of Article 2 thereof. However, that article does not specify the scope of the concept of ‘product under consideration’ either and it has already been held that there is nothing in its wording to support the idea of a specific requirement for homogeneity or similarity between the products at issue (judgment of 17 March 2016, Portmeirion Group, C‑232/14, EU:C:2016:180, paragraph 41); nor does it require an intricate classification (see, to that effect, judgment of 25 September 1997, Shanghai Bicycle v Council, T‑170/94, EU:T:1997:134, paragraph 61).

157 The basic regulation, read in the light of the Anti-Dumping Agreement, thus does not in itself require the concept of ‘product under consideration’ necessarily to refer to a product envisaged as a homogeneous whole and composed of similar products (judgment of 17 March 2016, Portmeirion Group, C‑232/14, EU:C:2016:180, paragraph 42).

158 It also follows from the Court’s settled case-law that the purpose of the definition of the product concerned in an anti-dumping investigation is to aid in drawing up the list of the products which will, if necessary, be subject to the imposition of anti-dumping duties. For the purposes of that process, the EU institutions may take account of a number of factors, such as, inter alia, the physical, technical and chemical characteristics of the products, their use, interchangeability, consumer perception, distribution channels, manufacturing process, costs of production and quality (judgments of 13 September 2010, Whirlpool Europe v Council, T‑314/06, EU:T:2010:390, paragraph 138, and of 17 December 2010, EWRIA and Others v Commission, T‑369/08, EU:T:2010:549, paragraph 82).

159 In those circumstances, the examination of whether a specific product has been validly included in the list of products which will, if necessary, be subject to the imposition of anti-dumping duties must be carried out in the light of the characteristics of the product concerned as defined by the institutions, not in the light of the characteristics of the products comprising the product concerned or its subcategories (judgment of 18 November 2014, Photo USA Electronic Graphic v Council, T‑394/13, not published, EU:T:2014:964, paragraph 30).

160 Indeed, products which are not identical in all respects may, because they correspond to the factors which the institutions took into account in defining the product concerned, come within the definition of that product and, in that context, be the subject of an anti-dumping investigation (see, to that effect, judgments of 18 November 2014, Photo USA Electronic Graphic v Council, T‑394/13, not published, EU:T:2014:964, paragraph 31, and of 28 February 2017, JingAo Solar and Others v Council, T‑157/14, not published, EU:T:2017:127, paragraph 112 and the case-law cited).

161 Moreover, in the light of the indicative nature of the criteria referred to in paragraph 158 above, the institutions are not under any obligation to determine the product concerned using all of those criteria. Nor is it necessary for the analysis of each of those criteria to be capable of leading to the same result (see judgment of 28 February 2017, Canadian Solar Emea and Others v Council, T‑162/14, not published, EU:T:2017:124, paragraph 113 and the case-law cited).

162 Lastly, according to the case-law, a claim that the product concerned is ill defined must be based on arguments which show that either the institutions erred in their assessment with regard to the factors they held to be relevant or that the application of other more relevant factors required that the definition of the product concerned be restricted (judgments of 28 February 2017, JingAo Solar and Others v Council, T‑157/14, not published, EU:T:2017:127, paragraph 100, and of 28 February 2017, Canadian Solar Emea and Others v Council, T‑162/14, not published, EU:T:2017:124, paragraph 99).

163 It is therefore necessary to ascertain whether the applicants are in a position to demonstrate either that the Commission made an incorrect assessment in its examination of the correctness of the facts, or a manifest error of assessment of those facts, in the light of the factors which it considered relevant, or that the application of other, more relevant factors would have required the exclusion of a product from the definition of the product concerned.

164 In the context of that review, account must be taken of the fact that, in the sphere of measures to protect trade, the EU institutions enjoy a wide discretion In that regard, since it has already been held that the determination of the like product fell within the exercise of the wide discretion conferred on the institutions and was therefore subject to limited review (see, to that effect, judgment of 25 September 1997, Shanghai Bicycle v Council, T‑170/94, EU:T:1997:134, paragraph 63), the same approach must be followed as regards the review of the merits of the definition of the product concerned (see, to that effect, judgments of 17 March 2016, Portmeirion Group, C‑232/14, EU:C:2016:180, paragraphs 46 and 47, and of 10 October 2012, Gem-Year and Jinn-Well Auto-Parts (Zhejiang) v Council, T‑172/09, not published, EU:T:2012:532, paragraph 62).

165 In the first place, as regards the criteria chosen by the Commission, it is apparent from recitals 32, 33, 37 and 163 of the provisional regulation and from recitals 29 and 30 of the contested regulation that the product concerned was defined on the basis of its composition as material made of sheets of wood, each ply not exceeding 6 mm thickness, consisting of layers or strands of wood veneers pressed together with glue into large, flat sheets, with outer plies of wood, with at least one outer ply of birch wood; it is used, inter alia, in the construction, packaging and furniture sectors. The Commission also relied on the basic physical, chemical and technical characteristics of birch plywood as well as on a certain degree of substitutability and on the resulting basic end use.

166 In order to claim that those factors were assessed incorrectly, the applicants point to the differences in terms of dimensions and shape which, in their view, are fundamental physical differences, the differences in thickness and glues, the various uses and the lack of interchangeability between square plywood and rectangular plywood, as well as the difference in price.

167 In that regard, the Court notes that the applicants have failed to adduce sufficient evidence to support the conclusion that the differences in dimensions and shape between rectangular birch plywood and square birch plywood are decisive or are so significant that the latter should be excluded from the products covered by the investigation.

168 Nor have the applicants adduced any evidence to establish that square birch plywood can have only a maximum thickness of 27 mm or that rectangular birch plywood cannot be cut to form a square shape, or even that such a cut shape could be only 4 × 4 feet, when the usual dimensions of square birch plywood are 5 × 5 feet.

169 On the contrary, as the interveners submit, it is apparent from the applicants’ commercial brochure on birch plywood which they produce, set out in Annex I.2 to the statement in intervention, that square plywood and rectangular plywood can have different standard dimensions, with the result that rectangular plywood of 4 × 8 feet or 5 × 10 feet can be converted into square plywood of 4 × 4 feet (1 200 × 1 200 mm) or 5 × 5 feet (1 525 × 1 525 mm), or even 4.8 × 4.8 feet (1 475 × 1 475 mm).

170 In addition, in the rebuttal of the interested parties’ comments on the provisional regulation, dated 7 July 2021, set out in Annex I.3 to the statement in intervention, the Woodstock Consortium stated that birch plywood was not, in most cases, used in its original format and that consumers could make cuts from any type of original format depending on the needs of the final product. It added that that was particularly valid for square plywood cut into rectangular panels of smaller sizes and that end users could make cuts from square or rectangular plywood, which allowed a certain degree of interchangeability and substitutability. According to the Woodstock Consortium, Union producers of parquet and packaging sourced for their production both square and rectangular plywood, which were used interchangeably to produce the engineered flooring or industrial packaging. The same applied to plywood reels used for cables, where the flanges cut from plywood had a round, not square, format. Furthermore, there was technology enabling undertakings to ‘scarf joint’ several individual square panels in order to make a rectangular panel meeting the particular needs of a customer.

171 Although the applicants submit that they requested that the product covered by the exclusion be composed of ‘square sheets, of a length of 1 525 mm and of a width of 1 525 mm’, it is not apparent from the basic regulation that the Commission is obliged to investigate products corresponding to the criteria adopted by the applicants.

172 Moreover, it is apparent from paragraph 154 of the application and from the applicants’ provisional comments on injury, set out in Annex A.27 to the application, that the applicants accepted that birch plywood from Russia was ‘mostly’ a semi-finished product that underwent further processing in the European Union, including cutting, and that only ‘some’ of the square plywood produced in Russia could have a thickness of only 27 mm.

173 The Court also notes that the applicants have not demonstrated that square birch plywood and rectangular birch plywood are intended for different uses. To that end, the applicants merely refer to their own provisional comments on injury, set out in Annex A.27 to the application, to the request by the Sveza Group for exclusion of the product, set out in Annex A.28 to the application, and to the Sveza Group’s response to the observations on the request for exclusion of the product, set out in Annex A.29 to the application. As regards the reference to the complaint lodged by the Woodstock Consortium, set out in Annex A.30 to the application, although it is stated therein that rectangular birch plywood is characterised by more complex uses, it does not follow that the two types of plywood can never be used in a similar way or are never interchangeable in the same sectors.

174 The applicants state, however, in the reply, that the ‘standard practice’ in the packaging sector is to use square plywood, whereas the furniture and interior sectors will ‘generally’ use either square or rectangular plywood. They also refer to Sveza-Les LLC’s responses to the observations on the request for exclusion of the product, set out in Annex A.29 to the application, from which it is apparent that the Russian exporting producers of the Sveza Group sell both rectangular and square plywood in the transport and construction, packaging and furniture sectors, albeit in different quantities. Such an argument implies that the applicants recognise that there is a certain degree of interchangeability between rectangular and square plywood.

175 The Court also notes that there is no requirement in the basic regulation that the technical functionalities should be the same for all products which fall within the definition of the product concerned. If that were so, all products covered by that definition would have to be practically identical, which the basic regulation does not require (see, by analogy, judgment of 28 February 2017, Canadian Solar Emea and Others v Council, T‑162/14, not published, EU:T:2017:124, paragraph 127).

176 As regards the argument based on different prices, even if it were to be considered that square birch plywood is cheaper than rectangular birch plywood, it does not support the conclusion that those two shaped plywoods are not interchangeable, since the choice of one or the other may depend on criteria other than price.

177 Thus, even though the Commission acknowledged that there are uses in which, for technical reasons, rectangular birch plywood, which is larger in size, would be preferred to square birch plywood, such a finding does not preclude the conclusion that there is a certain degree of interchangeability between those types of plywood in other circumstances, in particular by way of cutting in order to achieve a desired shape.

178 Lastly, as regards the applicants’ argument that pine, poplar, okoumé and beech plywood were excluded from the investigation and that a difference in terms of the type of wood used constitutes a difference in composition in the same way as a difference in terms of the glue used, that argument must be rejected, since the applicants have not adduced sufficient evidence to establish that the choice of a type of wood from which plywood is produced, as the main raw material, is as decisive as the choice of glue binding the sheets of wood.

179 It must therefore be concluded that the applicants have failed to demonstrate that the Commission made an incorrect assessment in its examination of the correctness of the facts or manifest errors of assessment of the facts in the light of the factors which it considered relevant for the purpose of defining the product concerned.

180 In the second place, as regards the question of whether the application of other more relevant criteria than those applied by the institutions would have led to the exclusion of a product type from the definition of the product concerned, it has been held that the application of those other criteria could call into question the conclusions drawn by the institutions in the light of the criteria applied, only if the applicant demonstrates first that those other criteria are manifestly more relevant (judgment of 28 February 2017, Canadian Solar Emea and Others v Council, T‑162/14, not published, EU:T:2017:124, paragraph 130).

181 In that regard, the Court considers that the applicants’ line of argument that there is practically no production of square birch plywood by the Union industry must be rejected. Without it being necessary to rule on the merits of that assertion, the fact that such a plywood may not be produced within the European Union is not determinative. The decisive question is whether that type of plywood is, on account of its characteristics and, therefore, the perception which consumers have of it, in competition with products of European Union production (see, by analogy, judgment of 18 November 2014, Photo USA Electronic Graphic v Council, T‑394/13, not published, EU:T:2014:964, paragraph 37).

182 It follows from paragraphs 165 to 178 above that square birch plywood and rectangular birch plywood may be interchangeable. Thus, they are in competition to a certain degree.

183 In any event, it must be stated that it is apparent from the file that there is production of square birch plywood in the European Union, since the applicants compared prices and the percentage of sales of square birch plywood produced by the Union industry.

184 It is apparent from the documents in Annexes A.31 and A.32 to the application that the applicants stated that the comparable production of square birch plywood by the Union industry was ‘[247.06] m³, i.e. [0.24%]’ of the total comparable sales of the Union industry and that the average price of square birch plywood sold by the Union industry was EUR 369. They also stated, in paragraph 122 of the application, referring to Annex A.31 to the application, that the square plywood produced by the applicants was 30% cheaper than the rectangular plywood and that, for comparable sales by Union producers, square plywood was 47% cheaper, which therefore showed that the applicants acknowledged that there are Union producers of square birch plywood.

185 Therefore, the applicants’ arguments seeking to demonstrate that other relevant criteria would have led to the exclusion of square birch plywood from the definition of the product concerned must be rejected.

186 The applicants’ complaints relating to manifest errors of assessment of the facts in the definition of the product concerned must, therefore, be rejected as unfounded.

2. The market segmentation in the context of the injury and causation analysis

187 According to Article 3(2) of the basic regulation, a determination of injury is based on positive evidence and involves an objective examination of, on the one hand, the volume of the dumped imports and the effect of the dumped imports on prices in the EU market for like products and, on the other hand, the consequent impact of those imports on the Union industry. That provision thereby clarifies how evidence is to be obtained and the examination which the Commission must carry out as an investigating authority in order to establish the existence of injury in order to be able to impose anti-dumping duties (judgment of 21 September 2023, China Chamber of Commerce for Import and Export of Machinery and Electronic Products and Others v Commission, C‑478/21 P, EU:C:2023:685, paragraph 117)

188 Article 3(6) of the basic regulation provides that it must be demonstrated, from all the relevant evidence presented in relation to paragraph 2, that the dumped imports are causing injury within the meaning of that regulation.

189 According to the case-law, even though those two determinations differ in their purpose, the evidence of the existence of injury, including the evidence relating to the effect of imports on prices of like products in the EU market, is taken into account in the Commission’s analysis of the causal link, which is referred to in Article 3(6) of the basic regulation. Thus, there is a link between the determination of price undercutting and, more generally, the effect of dumped imports on prices of like products in the EU market, under Article 3(2) and (3) of the basic regulation and the establishment of a causal link under Article 3(6) of the basic regulation (see, to that effect, judgment of 29 March 2023, Hubei Xinyegang Special Tube v Commission, T‑500/17 RENV, not published, EU:T:2023:171, paragraph 44 and the case-law cited; see also, by analogy, judgment of 14 December 2022, PT Wilmar Bioenergi Indonesia and Others v Commission, T‑111/20, EU:T:2022:809, paragraph 266 and the case-law cited).

190 Furthermore, according to the Court of Justice, it is apparent from the very wording of Article 3(3) of the basic regulation that the method used to determine possible price undercutting must, in principle, be applied at the level of the ‘like product’, within the meaning of Article 1(4) of that regulation, even though that product may consist of different product types falling within several market segments (see, to that effect, judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 74 and the case-law cited).

191 Accordingly, the basic regulation does not, in principle, impose any obligation on the Commission to carry out an analysis of the existence of price undercutting at a level other than that of the like product (judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 75).

192 However, since, under Article 3(2) of the basic regulation, the Commission is required to carry out an ‘objective examination’ of the effect of the dumped imports on prices in the Union industry for like products, it is required to take account in its analysis of price undercutting of all the relevant positive evidence, including, where applicable, evidence relating to the various market segments of the product under consideration (judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 77).

193 Accordingly, in order to ensure that the analysis of price undercutting is objective, the Commission may, in certain circumstances, be required, notwithstanding its broad discretion, to carry out such an analysis at the level of the market segments of the product in question. The same may be the case in a situation where there is marked segmentation of the market for the product in question and due to the fact that the imports subject to the anti-dumping investigation were overwhelmingly concentrated in one of the market segments relating to the product in question, provided, however, that the like product as a whole is duly taken into account. The same may also be the case where there is a particular situation characterised by a high concentration of domestic sales and dumped imports in separate segments and by price differences which are very significant between those segments. In those circumstances, the Commission may be required to take account of the market shares of each product type and those price differences in order to ensure the objectivity of the analysis of the existence of price undercutting (see, to that effect, judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraphs 78 to 81, 110 and 111).

194 By contrast, such an assessment by segment is not required where the products are sufficiently interchangeable. It is only where the results prove to be distorted, for one reason or another, that a segmented analysis is justified for products which are nevertheless interchangeable. In such a case, it is for the interested party to adduce specific evidence to substantiate its assertion that different products are not sufficiently interchangeable or that failure to undertake a segmented analysis for sufficiently interchangeable products would lead, in the instant case, to distorted results (see, to that effect, judgment of 19 May 2021, China Chamber of Commerce for Import and Export of Machinery and Electronic Products and Others v Commission, T‑254/18, EU:T:2021:278, paragraphs 378 and 379).

195 Furthermore, it has already been held that the fact that products belong to different ranges is not sufficient, in itself, to establish that they are not interchangeable and therefore that it is appropriate to carry out an analysis by segment, since products belonging to different ranges may have identical functions or satisfy the same needs (see, to that effect, judgment of 10 March 1992, Sanyo Electric v Council, C‑177/87, EU:C:1992:111, paragraph 12).

196 In the present case, it is apparent from recitals 164 to 166 and 193 to 199 of the contested regulation that the Commission rejected the claims based on the existence of different market segments between birch plywood produced by Russian industry and birch plywood produced by Union industry, due to the fact that the Commission compared thousands of different types of plywood products and found a significant level of matching (more than 68%) between Union sales and imported Russian products, that the investigation established that those products shared the same basic physical and technical characteristics and that the Union industry and the exporting producers were in competition in the same sectors and for the same end users.

197 As follows from paragraph 182 above, square birch plywood and rectangular birch plywood may be interchangeable and in competition with each other to a certain degree.

198 In addition, in a document setting out calculations based on the information on price undercutting and underselling provided in the definitive disclosure, set out in Annex A.31 to the application, the applicants state that their sales of square plywood represent 21% of their total sales on the EU market. As the Commission submits, it therefore follows that rectangular plywood represents 79% of the applicants’ sales, which the applicants do not dispute.

199 The applicants are therefore wrong to claim that their imports are concentrated on square plywood. The same applies to the claim that the imports from Russia are concentrated on a different market segment.

200 In the complaint lodged by the Woodstock Consortium, set out in Annex A.30 to the application, it is stated that birch plywood exported from Russia to the European Union consists primarily of rectangular sheets. It is true that the Woodstock Consortium stated that those sheets were characterised by more sophisticated uses and by higher average prices. However, it also claimed that imports from Russia were concentrated on the most standard grades and sizes which were considered to be commodities among birch plywood. It added that, in a commodity market, since all products are interchangeable, the lowest available price on the market became the reference in terms of price setting, which gave Russian exporting producers a position of power on the market. It does not therefore follow that a segmentation between the square plywood market and the rectangular plywood market is widely acknowledged.

201 As regards the applicants’ argument that the Birch Plywood Alliance explained that the Union industry did not have sufficient capacity to meet demand in the European Union, even if that were the case, it does not in itself support the conclusion that there is a segmentation between the rectangular birch plywood market and the square birch plywood market, or between birch plywood produced in the European Union and birch plywood produced by the applicants.

202 The applicants also claim that 39% of their sales cannot be compared to the sales of the sampled Union producers, that the sales made by the latter which can be compared to the applicants’ sales account for only 42% of their sales, and that more than 55% of Union producers’ sales are not in competition with Russian plywood.

203 However, first, the basic regulation does not provide that the Commission is required, in all circumstances, to take into account all the products sold by the Union industry.

204 Second, it must be stated that it is apparent from Annex A.31 to the application that the applicants obtained those percentages by comparing only their imports with Union production. The applicants are not the only exporting producers of birch plywood originating in Russia which the Commission took into account in the sample, since Zheshartsky LPK OOO and Syktyvkar Plywood Mill Ltd were also selected.

205 Moreover, if 39% of the applicants’ sales are not comparable to the Union producers’ sales, that means that 61% of their sales are in fact comparable. In addition, the sales made by the Union producers that can be compared to the applicants’ sales represent 42% of the latter’s sales. There is therefore a relatively high number of matches for that single group of exporting producers.

206 Nor have the applicants explained how they reach the conclusion that more than 55% of the sales of the sampled Union producers are not in competition with Russian plywood, but are higher-range and more expensive products. Since that argument is not substantiated, it is also not capable of calling into question the Commission’s conclusion concerning the significant level of matching of more than 68% between Union sales and imported Russian products.

207 Moreover, the applicants wrongly infer from the possible absence of matching for the remaining 32% of the sales of the sampled Union producers that those sales were not affected by the imports in question. Since the product concerned covers various types of products that are interchangeable and since, accordingly, there is no marked segmentation of the market for the product in question, those imports probably also had an effect on the prices of the products of the sampled Union producers which could not be compared. The applicants’ arguments are therefore not sufficient to call into question the objectivity of the assessment that the imports in question must have affected the price of the Union producers’ products since those products are interchangeable.

208 Accordingly, the applicants’ arguments do not demonstrate that the Commission made errors of law or manifest errors of assessment of the facts by not carrying out a market segmentation in the context of the injury and causation analysis, with the result that the applicants’ complaints in that regard must be rejected as unfounded.

209 The statement of reasons required by Article 296 TFEU must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted it, in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 9 January 2003, Petrotub and Republica v Council, C‑76/00 P, EU:C:2003:4, paragraph 81 and the case-law cited).

210 In the present case, the Court considers that the contested regulation, read in the light of the provisional regulation, contains an adequate statement of reasons for the Commission’s decision not to exclude square plywood from the definition of the product concerned and not to take account of a segmentation of the market in that regard.

211 In recitals 27 to 30 of the contested regulation, which also refer to recitals 32, 33 and 37 of the provisional regulation, the Commission responded to the arguments concerning the exclusion of square birch plywood from the definition of the product concerned due to the fact that it had the same basic physical, technical and chemical characteristics as rectangular birch plywood, as well as a degree of interchangeability and substitutability, with the result that it exerted competitive pressure on the latter.

212 As regards the rejection of the claim as to segmentation between the square plywood market and the rectangular plywood market, it is apparent from a reading of recitals 164, 165 and 193 to 199 of the contested regulation, which also refer to recitals 162 and 163 of the provisional regulation, that the Commission relied on the fact that those products shared the same basic physical, chemical and technical characteristics, that they were interchangeable to a significant degree, that they were in competition with each other in the same sectors and for the same end users, and that they had a significant degree of matching.

213 Consequently, the statement of reasons in the contested regulation satisfies the conditions laid down in Article 296 TFEU and the applicants’ complaint in that regard must be rejected as unfounded.

214 In the context of anti-dumping investigations, the institutions must ensure respect for the principle of good administration enshrined in Article 41(1) and (2) of the Charter of Fundamental Rights of the European Union, in accordance with which every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the European Union. That article of the Charter of Fundamental Rights governs the administrative procedure before the Commission and the Council of the European Union in the matter of defence against dumped imports from non-EU countries (see judgment of 12 December 2014, Crown Equipment (Suzhou) and Crown Gabelstapler v Council, T‑643/11, EU:T:2014:1076, paragraph 45 and the case-law cited).

215 In the present case, it follows from the above analysis that the Commission examined carefully and impartially all the relevant aspects of the present case and the main arguments raised by the applicants and responded to them for the purpose of confirming the inclusion of square birch plywood in the definition of the product concerned and the refusal to recognise two market segments.

216 In those circumstances, it must be concluded that all the relevant factors in the present case were examined and that the Commission did not infringe the principle of good administration in that regard.

217 It follows from all of the foregoing that the fourth plea in its entirety must be rejected as unfounded, as must the first part of the sixth plea.

D. The fifth plea in law, alleging errors of law, manifest errors of assessment and infringement of the principle of good administration in the use of Eurostat data

218 The applicants allege infringement of Article 3(2) and (3) of the basic regulation and infringement of the right to good administration, and allege that there were manifest errors of assessment, in that the Commission determined the volumes and prices of imports of the product concerned on the basis of unreliable Eurostat data.

219 As regards the volumes of imports, the applicants submit that the use of a ratio of 79% for the purpose of distinguishing the percentage of imports of the product concerned among the imports of plywood from Russia falling under CN code 44123300 does not reflect the prevailing situation over the entire investigation period and does not make it possible to identify precisely the evolution and volumes of imports of that product. Thus, the CN code covers products other than the product concerned and the ratio is artificially inflated, since it is based on a period of six months post-investigation period, which was marked by particular market conditions, the share of the product concerned in the CN code having increased due to a shortage of other types of plywood. Moreover, the trends relating to volumes based on Eurostat data differ from the trends based on the applicants’ responses to the Commission’s questionnaire.

220 Furthermore, the density ratio of 0.69 kilogrammes per cubic metre (kg/m³) of plywood, which was used to convert the Eurostat data expressed in tonnes into cubic metres, to which reference is made in the contested regulation, is inappropriate and should be 0.26. During the investigation, the applicants thus provided Russian export statistics for the product concerned, which, in their view, reflected the correct density for plywood.

221 As regards the import prices, the applicants submit that their replies to the questionnaire that concerned the development of export prices of the product concerned showed that prices had increased during the investigation period, whereas the contested regulation, on the basis of Eurostat data, indicates a decrease of 10%. They add that the Eurostat data on prices are disconnected from reality, since they show an increase from December 2020 until May 2021, and then drastically fall in June 2021 and reach EUR 385 per tonne, whereas it is undisputed that prices reached unprecedented levels by June 2021.

222 The Commission submits that the alleged infringement of Article 3(3) of the basic regulation is manifestly inadmissible. Moreover, the Commission, supported by the interveners, disputes the applicants’ arguments.

223 According to the case-law, the Commission enjoys a wide discretion in analysing data, including data provided by Eurostat (see, to that effect, judgment of 23 September 2015, Schroeder v Council and Commission, T‑205/14, EU:T:2015:673, paragraph 41).

224 Furthermore, the institutions do not make a manifest error of assessment of the facts when they rely on data reasonably available to them (see, to that effect, judgments of 27 November 1991, Gimelec and Others v Commission, C‑315/90, EU:C:1991:447, paragraphs 13 and 14, and of 28 October 2004, Shanghai Teraoka Electronic v Council, T‑35/01, EU:T:2004:317, paragraphs 229 and 230).

225 It is therefore for the applicants, if they seek to dispute the reliability of the data used by the Commission concerning the volume and prices of the dumped imports, to substantiate their assertions with evidence capable of casting specific doubt on the credibility of the method or data used by that institution. Therefore, if an applicant wishes its claim to be successful, it cannot merely challenge the data and figures used by the Commission or produce alternative figures, for example figures obtained on the basis of data from the customs authorities from which the contested imports derived, but must produce evidence capable of calling into question the data provided by the Commission (see, to that effect, judgment of 20 September 2019, Jinan Meide Casting v Commission, T‑650/17, EU:T:2019:644, paragraph 357 (not published)).

226 In the present case, as regards the volumes of imports, the Court considers that the Commission made reasonable and prudent use of the Eurostat data relating to imports of products falling under CN code 44123300. As is apparent from recital 86 of the provisional regulation and recital 127 of the contested regulation, the Commission was fully aware that that code also included products other than the product concerned. The Commission therefore estimated the proportion of imports of the product concerned within that code. In order to do so, when the procedure was initiated, it created a special TARIC code for which only imports of the product concerned were registered.

227 The Commission then established the percentage of the product concerned in the CN code by using data from the first full month following the creation of the special TARIC code, namely November 2020. In the provisional regulation, the ratio between the import volumes of the full CN code and the imports of the product concerned based on the TARIC data, corresponding to 78%, was established using data from three months post-investigation period, namely from November 2020 to January 2021. That ratio was then revised to 79% in the contested regulation on the basis of data from six months post-investigation period, namely from November 2020 to April 2021.

228 It is also apparent from recitals 128 to 130 of the contested regulation that the Commission also took account of an accounting problem when comparing data expressed in tonnes with data expressed in cubic metres, since the results did not correspond to the normal average density ratio of the product concerned. It found that the data expressed in cubic metres fluctuated, whereas the data expressed in weight retained a constant value. The Commission therefore converted the data expressed in tonnes, which were considered to be more reliable and stable, into cubic metres and used a density ratio of 0.69 kg/m³ in order to do so.

229 On the basis of that methodology, the Commission states, in recitals 133 and 135 of the contested regulation, that it had established the volume of imports of the product concerned and their development.

230 An anti-dumping investigation is, in reality, an ongoing process, during which many findings are constantly revised. It cannot therefore be ruled out that the definitive findings made by the EU institutions will differ from the findings made at any other stage of the investigation. Moreover, the preliminary figures may, by definition, be amended during the investigation. Consequently, the applicants are not justified in claiming that the slight increase in the ratio of imports from Russia, from 78% to 79%, is in any way an illustration of the unreliability of the data at issue. Finally, it is important to note that injury must be established in relation to the time when any measure imposing protective measures was adopted (see, to that effect, judgment of 28 November 1989, Epichirisseon Metalleftikon, Viomichanikon kai Naftiliakon and Others v Council, C‑121/86, EU:C:1989:596, paragraphs 34 and 35).

231 The use of the density ratio of 0.69 kg/m³, used by the Commission to convert into cubic metres the Eurostat data expressed in tonnes, was also suggested by the applicants themselves during the investigation.

232 In their provisional comments of 28 June 2021 on injury, set out in Annex A.27 to the application, and in their definitive comments of 10 September 2021 on injury, set out in Annex A.32 to the application, the applicants claimed that the import volumes obtained by the Commission did not reflect the typical density of birch plywood, which is approximately 0.69 kg/m³. The applicants then stated that they requested the Commission to, at the very least, forgo Eurostat’s figures in cubic metres and to convert the figures expressed in tonnes by applying a density ratio of 0.69, while expressing their preference in that regard for the use of Russian export statistics for birch plywood.

233 It is therefore clear from those documents that the applicants requested the Commission to forgo the figures in cubic metres and to convert the figures in tonnes by applying the typical density ratio for birch plywood of 0.69, and that the applicants acknowledged that that conversion had, at the very least, resolved the problem affecting the density.

234 The applicants also accepted that, even if Russian export statistics were used, the amount of volumes should be adjusted downwards using the TARIC data. Thus, in their provisional comments of 28 June 2021 on injury, set out in Annex A.27 to the application, the applicants suggested to the Commission, in the event of the Russian export statistics being used as a basis for assessing the volume of imports of the product concerned, to adjust those statistics downwards using the TARIC data.

235 The applicants therefore acknowledged that the Russian statistics, as with the CN code, included products other than the product concerned and that, in Russia, there was no tool similar to the TARIC code to determine the share of exports of the product concerned. Their arguments do not therefore permit the inference that the Russian statistics are more reliable than the Eurostat data.

236 The applicants’ arguments to the effect that the ratio calculated by the Commission does not reflect the prevailing situation over the whole of the period considered or the investigation period, due to particular market conditions, or that the evolution of import volumes which are based on Eurostat data is not reflected by their data, are not, moreover, supported by sufficient evidence.

237 Although the applicants refer to the Commission’s additional explanations of 21 June 2021 regarding the determination of import figures, set out in Annex A.35 to the application, from which, according to the applicants, it is apparent that, from one month to the other, variations could occur (71% in December 2020 and 79% in January 2021), it is also apparent that the ratio of 78% used by the Commission in the provisional regulation was established by calculating the average of the combined data from three months post-investigation period, namely from November 2020 to January 2021. It must be noted that that ratio is close to the ratio of 79% set out in the contested regulation.

238 The applicants also refer to the Woodstock Consortium’s replies to the suspension questionnaire, set out in Annex B.4 to the defence, from which it is apparent that the changes in market conditions between the investigation period and the analysis period and the increase in demand for birch plywood in the European Union in 2021 were caused, inter alia, by a shortage of other types of plywood and a growing demand from the United States.

239 However, on reading that information, it is not possible to conclude to what extent the alleged increase in demand for birch plywood resulted in an increase in imports of the product concerned originating in Russia into the European Union, or the share of such an increase.

240 In its replies to the suspension questionnaire, set out in Annex B.4 to the defence, the Woodstock Consortium also stated that, overall, during the first six months of 2021, imports from Russia had increased by 13% compared with the same period in 2020, and by 13% between the first half of 2021 and the same period in the pre-pandemic year of 2019.

241 However, that information was part of a more general discussion aimed at noting that Russian exporters were capable of generating massive exports to the European Union in a very short time frame and that Russian mills and their customers in the European Union were not deterred by the anti-dumping measures. In addition, as the Commission notes, those comments related to data at CN level that were prior to the initiation of the investigation and prior to the creation of the TARIC code and they therefore covered products other than the product concerned, without it being possible to determine whether the share of the product concerned in the volume covered by the CN code had actually increased or decreased.

242 Lastly, the applicants refer to their own replies to the Commission’s questionnaire, establishing that their import volumes decreased by 7% between 2017 and the investigation period, in order to dispute the figures set out in Table 2 of the contested regulation, which show a 14% increase in imports of the product concerned from Russia.

243 In accordance with the case-law cited in paragraphs 224 and 225 above, the applicants cannot merely produce alternative figures obtained exclusively on the basis of their own data, in order to challenge the data and figures used by the Commission.

244 Accordingly, the applicants have not substantiated their assertions to the requisite legal standard by way of evidence capable of casting specific doubt on the credibility of the method or data used by the Commission to establish the volume of imports of the product concerned.

245 As regards the import prices, it is apparent from recitals 136 to 141 of the contested regulation that the Commission established them based on Eurostat data expressed in euros per tonne, at CN level. Although the imports of the product concerned were recorded with a bigger basket of products, according to the Commission, that methodology provided a reliable estimation of prices and their development and enabled a comparison of price developments between different exporting countries. It added that the methodology used confirmed that the prices obtained from Eurostat statistics, which decreased by 10% during the investigation period, from EUR 646 per tonne in 2017 to EUR 584 per tonne during the investigation period, followed the same trend as the weighted average export prices of the sampled Russian exporting producers, with a price of EUR 434 per cubic metre during the investigation period.

246 The applicants dispute the trend which the price development followed and refer in that regard to their definitive comments on injury, set out in Annex A.32 to the application, and to their responses to the Commission’s questionnaire, set out in Annex C.5 to the reply.

247 First, it must be stated that the figures to which the applicants refer in their definitive comments on injury, in order to claim that the Eurostat data were disconnected from reality, relate to a post-investigation period, running from July 2020-February 2021 to June 2021. The applicants have not explained how that price increase post-investigation period calls into question the reliability of Eurostat’s price data during that period.

248 Furthermore, the amount of EUR 385 per tonne to which the applicants refer in order to claim that the price reduction reported by Eurostat was incorrect does not correspond to the figure after the monthly updates to which Eurostat is subject. The User guide on European statistics on international trade in goods indicates, in essence, that data as published by Eurostat may be subject to subsequent revisions. In that respect, the Commission produces the data from June 2021, extracted in July 2022, which show an average price of EUR 784.35 per tonne and therefore an increase in relation to the investigation period.

249 Second, the applicants rely on their replies to the Commission’s questionnaire in order to dispute the trend of a decrease in import prices between 2017 and the investigation period, as shown in Table 3 of the contested regulation, since their own imports increased by 3%.

250 Nevertheless, that is only the development of the applicants’ export prices, which represent approximately 40% of all imports of the product concerned into the European Union. For the purposes of the analysis of the development of prices of imports of the product concerned, the Commission took account of the trend resulting from the Eurostat data, which are based on the prices of all imports of the product concerned originating in Russia, and compared it with the trend resulting from the data of the three sampled Russian exporting producers, representing approximately 66% of all imports of that product into the European Union. The applicants’ figures, which are established exclusively on the basis of their own data, are therefore not such as to call into question the data provided by the Commission, as follows from the case-law cited in paragraphs 224 and 225 above.

251 Accordingly, the applicants have not adduced sufficient evidence capable of casting specific doubt on the credibility of the methodology or data used by the Commission to establish the prices of imports of the product concerned.

252 In the light of the foregoing, the Court considers that, even if the allegations of infringement of Article 3(3) of the basic regulation and of the right to good administration, which are limited to the mere assertion of their infringement, satisfy the requirement of Article 76(d) of the Rules of Procedure of the General Court and, therefore, are admissible, the applicants have failed to demonstrate that, by taking into account the Eurostat data, the Commission made manifest errors of assessment of the facts and infringed Article 3(2) and (3) of the basic regulation or the applicants’ right to good administration.

E. The second part of the sixth plea, alleging errors of law, manifest errors of assessment and infringement of the right to good administration in the context of the analysis of the existence of other injury factors

254 The applicants allege infringement of Article 3(7) of the basic regulation and of the right to good administration, as well as manifest errors of assessment, in that the Commission failed to take into account the impact of other injury factors when assessing the causal link between the imports of the product concerned and the injury caused to the Union industry.

255 In the first place, the applicants claim that the increases in the volume of imports from Ukraine and Belarus between 2017 and the investigation period cannot be regarded as marginal. They are higher and cheaper than the increases in imports from Russia and could have influenced the Union industry’s situation. The Commission’s decision not to consider them in the assessment of the causal link is therefore incorrect.

256 The Commission also contradicts itself when it acknowledges a segmentation between the market for birch plywood from Belarus, but takes the view that the same is not true of the Russian and Union birch plywood markets.

257 In the second place, according to the applicants, the suspension decision confirms that, during the post-investigation period, from July 2020 to June 2021, fluctuations in the prices of raw material and long-term contractual obligations between Union producers and their customers affected those producers’ ability to benefit from the increase in demand and to adjust their prices. Those factors therefore affected the Union producers not only during the post-investigation period, but also during the investigation period.

258 The Commission, supported by the interveners, disputes the applicants’ arguments.

259 Article 3(7) of the basic regulation provides that known factors other than the dumped imports which are injuring the Union industry at the same time must also be examined in order to ensure that injury caused by those factors is not attributed to the dumped imports pursuant to Article 3(6), which provides that it must be demonstrated, from all the relevant evidence presented, that the dumped imports are causing material injury to Union industry (see judgment of 16 April 2015, TMK Europe, C‑143/14, EU:C:2015:236, paragraph 33 and the case-law cited).

260 In determining injury, the EU institutions are under an obligation to consider whether the injury on which they intend to base their conclusions does in fact derive from the dumped imports and must disregard any injury deriving from other factors, particularly from the conduct of Union producers themselves (see judgment of 16 April 2015, TMK Europe, C‑143/14, EU:C:2015:236, paragraph 35 and the case-law cited).

261 In that regard, it is for the EU institutions to ascertain whether the effects of those other factors were not such as to break the causal link between, on the one hand, the imports in question and, on the other, the injury suffered by the Union industry. It is also for them to verify that the injury attributable to those other factors is not taken into account in the determination of injury within the meaning of Article 3(7) of the basic regulation and, consequently, that the anti-dumping duty imposed does not go beyond what is necessary to offset the injury caused by the dumped imports (see judgment of 16 April 2015, TMK Europe, C‑143/14, EU:C:2015:236, paragraph 36 and the case-law cited).

262 However, if the EU institutions find that, despite such factors, the injury caused by the dumped imports is material under Article 3(1) of the basic regulation, the causal link between those imports and the injury suffered by the Union industry can consequently be established (see judgment of 16 April 2015, TMK Europe, C‑143/14, EU:C:2015:236, paragraph 37 and the case-law cited).

263 Lastly, it is for the parties pleading the illegality of a regulation such as the contested regulation to adduce evidence to show the impact of the factors that are capable of having an effect on the injury caused to the Union industry. Those parties must, in particular, demonstrate that those factors could have had such an impact that the existence of injury caused to the Union industry and of the causal link between that injury and the dumped imports was no longer reliable (see, to that effect, judgment of 19 December 2013, Transnational Company ‘Kazchrome’ and ENRC Marketing v Council, C‑10/12 P, not published, EU:C:2013:865, paragraph 28 and the case-law cited).

264 As regards, in the first place, the imports from Ukraine and Belarus, it is apparent from recitals 168 to 177 of the contested regulation that the Commission took them into account in the analysis of the causal link. It therefore did not refuse to examine them, but concluded, in recitals 173 and 176 of the contested regulation, that their impact did not attenuate the causal link between the imports of the product concerned and the material injury suffered by the Union producers.

265 In that regard, it is apparent from the Eurostat data in Table 5, set out in recital 170 of the contested regulation, that the volumes of imports from Ukraine and Belarus increased, during the period considered, by 30% (from 67 831 to 88 303 cubic metres) and by 17% (from 124 561 to 145 731 cubic metres), respectively. By comparison, Table 2, set out in recital 134 of the contested regulation, shows that the volume of imports from Russia increased by 14% (from 710 163 to 812 521 cubic metres) in that same period.

266 The increases in volume thus correspond, for Ukraine and Belarus, to a 1% increase in their market share (from 4 to 5% and from 7 to 8%, respectively), whereas the market share of imports from Russia increased by 6% (from 40 to 46%).

267 Therefore, although the percentage increase in imports from Ukraine and Belarus is higher than the percentage increase in imports from Russia, the fact remains that the volume of those imports in itself and their market share are much lower than the volume of imports from Russia and the market share held by the latter imports.

268 As regards the prices of imports from Ukraine and Belarus, the applicants reproduced the prices as set out in Table 5 of the contested regulation but, for the imports from Russia and Belarus, increased them by 7% in order to take into account customs duties. It did not do the same with the prices of imports from Ukraine.

269 As is apparent from Table 5 of the contested regulation, a comparison of prices without customs duties shows that the average price of imports from Ukraine and Belarus decreased by 5% (from EUR 651 to EUR 616 per tonne) and by 10% (from EUR 403 to EUR 363 per tonne), respectively, during the period considered, whereas the average price of imports from Russia decreased by 11% (from EUR 646 to EUR 584 per tonne), as is apparent from Table 3 of the contested regulation. Contrary to what the applicants submit, the average price of imports from Ukraine is therefore higher than the average price of imports from Russia.

270 As regards the average price of imports from Belarus, although it is lower, the applicants do not dispute the Commission’s explanation in recital 172 of the contested regulation, according to which that price difference is due to the technological constraints in that country, which can produce only lower-quality birch plywood, whereas imports from Russia concern a wider range of products and higher-quality birch plywood. The applicants merely claim that there is a contradiction with the Commission’s choice to include square plywood in the definition of the product concerned and not to recognise a segmentation of the market. As follows from the analysis in paragraphs 163 and 208 above, the applicants have not demonstrated that the Commission made a manifest error of assessment in that regard.

271 Accordingly, the applicants have failed to demonstrate the impact of the imports from Ukraine and Belarus on the injury caused to the Union industry, within the meaning of the case-law cited in paragraph 263 above. Their complaints alleging manifest errors of assessment of the facts and an error of law in that regard must therefore be rejected.

272 As regards, in the second place, the fluctuations in raw material prices and long-term contractual obligations between Union producers and their customers, the Commission stated, in recital 185 of the contested regulation, that the investigation had established that the cost of raw materials did not attenuate the causal link and that the problem resided rather in the limited ability of the Union industry to raise prices to the same extent as cost increases due to the pressure exerted by dumped imports from Russia, both in terms of volumes and in terms of prices.

273 It is true that, in recital 11 of the suspension decision, the Commission stated that the Union industry had only partially benefited from the increase in demand, given that the increase in sales and prices had been offset, to a large extent, by the increase in production costs and delayed price adjustments due to contractual obligations. Similarly, the Woodstock Consortium, in its reply to the suspension questionnaire, set out in Annex A.39 to the application, stated that the Union producers normally worked on the basis of long-term contracts with their customers, which significantly limited their ability to adjust the prices at short notice in the event of rapid price fluctuations on the market.

274 However, the applicants have not substantiated to the requisite legal standard the reasons why the Commission was not entitled, at the end of the investigation, to conclude that the decrease in sales prices in the European Union was due to the pressure on prices exerted by imports of the product concerned, and not due to the increase in raw material prices and the contractual terms to which the Union industry is subject.

275 Accordingly, the applicants have not demonstrated how the contractual obligations of the Union producers and the increases in raw material prices during the post-investigation period are such that they affect the causal link between the imports of the product concerned and the injury suffered by the Union industry, to the point of rendering the imposition of the anti-dumping duty manifestly inappropriate.

276 It follows from the foregoing that the applicants have not adduced sufficient evidence capable of calling into question the validity of the Commission’s analysis regarding the causal link.

277 In the light of the foregoing, the Court considers that the applicants have failed to demonstrate that, in finding that the imports from Ukraine and Belarus, the costs of raw materials and the contractual commitments of the Union producers had not attenuated the causal link between the imports of the product concerned and the injury suffered by the Union producers, the Commission made manifest errors of assessment of the facts, infringed Article 3(7) of the basic regulation or infringed the applicants’ right to good administration.

278 It follows that the second part of the sixth plea must be rejected as unfounded and, consequently, the action must be dismissed in its entirety.

279 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.

280 Since the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the forms of order sought by the Commission and the interveners.

2. Orders Sveza Verkhnyaya Sinyachikha NAO and the other applicants whose names are set out in the annex to pay the costs.

A. The first plea in law, regarding the analysis of the economic relationship between the applicants and Sveza-Les and regarding the adjustment of only the export price

1. The economic relationship between the applicants and Sveza-Les on the export market

(a) The commission contracts concluded between the applicants and Sveza-Les for sales on the export market

(d) The system for invoicing, for transfer of ownership of the product concerned and for tax accounting of revenue

2. The adjustment of only the export price on the basis of Article 2(10)(i) of the basic regulation

(a) The economic relationship between the applicants and Sveza-Les on the domestic market

(2) The system for invoicing, for transfer of ownership of the product concerned and for tax accounting of revenue

(b) The conditions for the application of Article 2(10)(i) of the basic regulation which made it possible to adjust the export price

D. The fifth plea in law, alleging errors of law, manifest errors of assessment and infringement of the principle of good administration in the use of Eurostat data……………….

1 The list of the other applicants is annexed only to the version sent to the parties.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Sveza Verkhnyaya Sinyachikha and Others v Commission (Dumping - Imports of birch plywood originating in Russia - Judgment) [2024] EUECJ T-2/22 (11 September 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/T222.html Cite as: [2024] EUECJ T-2/22, EU:T:2024:615, ECLI:EU:T:2024:615

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