11 September 2024 (* )

( Dumping – Imports of birch plywood originating in Russia – Definitive anti-dumping duties – Implementing Regulation (EU) 2021/1930 – Adjustments – Commission – Export price – Transport costs – Article 2(10)(e), (i) and (k) of Regulation (EU) 2016/1036 – Selling, general and administrative 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 )

In Case T‑3/22,

Zheshartsky LPK OOO (ZHLPK),

established in Zheshart (Russia), represented by P. Vander Schueren, E. Gergondet and A. Nosowicz, lawyers,

applicant,

European Commission,

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

defendant,

supported by

Latvijas Finieris AS,

established in Riga (Latvia),

and by

Paged Pisz sp. z o.o.,

established in Pisz (Poland),

represented by S. Ross, lawyer,

interveners,

THE GENERAL COURT (Sixth Chamber),

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

Registrar: V. Di Bucci,

having regard to the written part of the procedure, including the measure of organisation of procedure of 10 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,

gives the following

1By its action under Article 263 TFEU, the applicant, Zheshartsky LPK OOO (ZHLPK), seeks 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’).

Background to the dispute

2The applicant is a Russian exporting producer of birch plywood, which exports, inter alia, to the European Union.

3Following 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).

4The 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’).

5By 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 applicant.

6On 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.

7On 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 applicant.

8On 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’).

Forms of order sought

9The applicant claims that the Court should:

–annul the contested regulation;

–order the Commission to pay the costs.

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

–dismiss the action;

–order the applicant to pay the costs.

Law

11In support of its action, the applicant puts forward six pleas in law.

12The first plea alleges manifest errors of assessment and infringement of Article 2(10)(i) of the basic regulation, in that the Commission incorrectly adjusted the export price and the normal value by dividing the amount of commission that was allocated exclusively to sales on the domestic market via the related distributor, Trade House Lesplittorg LLC (‘Trade House’).

13Since the second and third pleas concern the amount of transport costs, those pleas will be dealt with together. In that regard, the second plea alleges manifest errors of assessment and infringement of Article 2(10)(e) of the basic regulation or, in the alternative, of Article 2(10)(k) of that regulation, in that the Commission refused to make an upward adjustment of the export price, in order to take account of the fact that approximately 80% of the transport costs incurred in the transportation of birch plywood to the export markets, including the European Union, are reimbursed by the Russian authorities under the Russian railway tariff compensation scheme.

14Put forward in the alternative, the third plea alleges manifest errors of assessment and infringement of Article 2(6) of the basic regulation and of the obligation to state reasons, in that, when determining the amount of selling, general and administrative costs (‘SG&A costs’) for the purposes of calculating the normal value, the Commission incorrectly decided not to take account of the amount of the reimbursement of export transport costs.

15The 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.

16The 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).

17The 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.

The first plea in law, alleging manifest errors of assessment of the facts and errors of law in the adjustment made to the export price and to the normal value

18The applicant submits that the Commission made manifest errors of assessment and infringed Article 2(10)(i) of the basic regulation in that it incorrectly considered that Trade House received commission for sales on the export market and on the domestic market and made a theoretical adjustment of 1.479% in respect of both the normal value and the export price.

19According to the applicant, almost all sales on the domestic market are made through Trade House, acting as a commission agent, paid for its functions by means of a commission fixed by a commission agreement concluded with the applicant, representing 6% of the amount of sales to independent customers. The amount from the sales receipts is then transferred to the applicant after deduction of the commission.

20However, on the export market, approximately 20% of the sales are made through a related importer situated in Latvia, which buys the product concerned directly from the applicant and resells it to independent customers. 80% of the sales are made directly by the applicant, which concludes framework contracts with the independent customers, invoices them, sends them the product and receives the payments.

21The services performed by Trade House on the domestic market are therefore performed directly by the applicant on the market for export to the European Union. Although Trade House also performs certain functions on the export market, no commission is actually paid to it in that regard. Nor does it receive any margin on those sales.

22According to the applicant, it is apparent, in particular, from the case-law of the General Court that, where commission is paid on export prices and not on domestic prices, only the adjustment of the former is justified, irrespective of the fact that the same entity performs the same functions on both markets even though it is remunerated on only one of them.

23The applicant discharged the burden of proving the total amount of the adjustment for commission received in respect of sales on the domestic market, namely 76 332 175.88 Russian roubles (RUB) (approximately EUR 770 000), and the Commission accepted that amount as being allocated entirely to that market. In that regard, the Commission contradicts itself when, in the contested regulation, on the one hand, it reallocates part of the amount of commission received for sales on the domestic market to sales on the export market and, on the other hand, it accepts the total amount of commission as being correct and as relating entirely to the domestic market in the calculation of SG&A costs in the profit and loss table (‘Table G’).

24Therefore, in order to make a fair comparison between the export price and the normal value, in accordance with Article 2(10)(i) of the basic regulation, the Commission should have made an adjustment of the normal value corresponding to the total amount of commission paid to Trade House for sales on the domestic market, namely 6%, and not 1.479%. As for the export price, it should not have been adjusted.

25The Commission disputes the applicant’s arguments.

26In 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).

27In 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).

28However, 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).

29Article 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)).

30That 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).

31Among the factors for which adjustment can be made, 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.

32Such 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. The burden of proving that the specific adjustments listed in Article 2(10)(a) to (k) of that 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).

33Thus, 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

34v Council, C‑468/15 P, EU:C:2016:803, paragraph 84 and the case-law cited).

35It 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).

36In the present case, during the administrative procedure, the applicant requested that the Commission make an adjustment to the normal value, by taking into account the 6% commission paid to Trade House for sales on the domestic market.

37The Commission, having considered that the applicant had not demonstrated that the conditions for granting such an adjustment were satisfied, decided, in the light of the economic reality of the relationship between the applicant and Trade House, that part of the commission paid in respect of sales on the domestic market should be reallocated to sales on the market for export to the European Union. To that end, it is apparent from the information in the file that the Commission took into account a commission of 1.479% for the purposes of adjusting the normal value and the export price.

38In the light of the case-law cited in paragraphs 32 and 33 above, since the Commission considered that it was necessary to apply a downward adjustment of the export price and of the normal value and to take account of a commission of 1.479% on both markets, it is for the Commission to adduce, at the very least, consistent evidence to establish the existence of the factor on the basis of which the adjustment was made and to determine its effect on price comparability in order to demonstrate that the conditions for granting such an adjustment were satisfied.

39It is apparent from recital 65 of the provisional regulation and from recitals 47 and 49 to 52 of the contested regulation that the Commission stated that it had allocated the amount of commission paid to Trade House between domestic and export sales on the basis of the volume of sales. By way of evidence, it justified such an allocation by relying on statements and documents from the applicant, including the reply to the questionnaire, the deficiency letter, the remote cross-check report and the applicant’s comments following the communication of the definitive disclosure.

40First of all, the Court notes that it is apparent from the applicant’s reply to the questionnaire, set out in Annex A.2 to the application, that the sales functions are performed by Trade House, acting as an agent, for direct sales to the European Union and for domestic sales. The applicant explained that, in particular, Trade House negotiated contracts with customers in the European Union concerning quantities, prices, delivery terms and lists of products. Those contracts were subsequently executed between the customers and the applicant. The applicant added that, unlike for domestic sales, however, Trade House was not remunerated for its activities by way of commission.

41Next, in Annex 1 to the response to the first deficiency letter, set out in Annex A.4 to the application, the applicant stated that Trade House received no remuneration for the functions it performed on the export market. The applicant added, however, that the decision to pay commission only on domestic sales was based on commercial strategic reasons to promote domestic sales of the product concerned and that Trade House’s revenue from the commission on domestic sales was sufficient to cover its costs and profits.

42In addition, in the remote cross-check report of 18 February 2021, set out in Annex A.3 to the application, the Commission referred to certain explanations and documents obtained from the applicant itself, from which it was apparent that, on the domestic market, Trade House acted on the basis of a commission agreement and received a commission of 6%. On the export market, although Trade House was involved in the sales process, no commission agreement was established in that regard, but its costs and expenses were covered by the commission received for domestic sales.

43Lastly, in its definitive comments on dumping, set out in Annex A.6 to the application, although the applicant reiterated that the commission was paid to Trade House exclusively for domestic sales, it also reiterated that that commission was sufficient to cover all functions carried out by Trade House on the domestic market and on the export market.

44It is therefore apparent from the documents to which the Commission refers in the contested regulation that, first, Trade House acts as an intermediary on both markets, although the applicant itself signs the contracts with independent customers on the market for export to the European Union. Second, the commission paid to Trade House for sales on the domestic market also make it possible to cover the costs which it incurs in connection with sales on the export market and to attribute a profit to it for the performance of those functions.

45The applicant’s arguments are not capable of calling that finding into question.

46In support of its arguments relating to the contracts governing the functions which Trade House performs on the market for export to the European Union and the domestic market, the applicant referred to the documents set out in Annex A.7 to the application concerning:

–two examples of sales contracts concluded between the applicant and two independent customers in the European Union, as well as the related documents, specifying the product type, quantity and price, and providing information on the payment for and transportation of that product;

–a commission agreement signed by Trade House, in its capacity as commission agent, and the applicant, in its capacity as principal, and an addendum concluded between Trade House and an independent customer on the Russian domestic market for the order of products, together with the related documents, providing information on the payment for and transportation of the products, including a delivery note listing the applicant as the consignor, that customer as the consignee and Trade House as the supplier.

47It is true that those documents show that, on the market for export to the European Union, the applicant directly concludes the framework contracts with independent customers situated in the European Union, signs the invoices, receives payments, draws up the packaging lists for the products and sends the latter, whereas, on the domestic market, Trade House acts as the applicant’s commission agent, receives orders from independent customers, concludes supply contracts and receives payments from those customers, and subsequently transfers to the applicant the amount from the sales.

48However, it must also be noted that, in paragraph 18 of the application, the applicant stated that ‘on the EU market, around 80% of sales were made directly by [it] via Trade House, although – unlike for domestic sales – Trade House is not remunerated for its activities relating to the EU market’. It also stated, in paragraph 19 of the application, that ‘Trade House negotiates contracts with customers in the EU and, in that sense, carries out the same functions on the EU and domestic markets’.

49The applicant’s statements in its pleadings before the Court therefore confirm that, although it is the direct signatory of the documents relating to the market for export to the European Union, Trade House performs the same functions on that market as on the domestic market and acts as an intermediary.

50Moreover, contrary to what the applicant claims, it does not follow from the Court’s case-law that the Commission is limited to the contractual requirements between the parties in order to make an adjustment on the basis of Article 2(10)(i) of the basic regulation.

51It is true that, in paragraph 94 of the judgment of 21 November 2002, Kundan and Tata v Council (T‑88/98, EU:T:2002:280), and in paragraphs 274 to 282 of the judgment of 18 March 2009, Shanghai Excell M&E Enterprise and Shanghai Adeptech Precision v Council (T‑299/05, EU:T:2009:72), the Court stated that only a commission that had actually been paid was capable of affecting the comparability of the export price and the normal value or, where commission had not actually been paid, where the traders in question carried out functions similar to those of an agent and received a mark-up.

52Similarly, in the judgment of 25 June 2015, PT Musim Mas v Council (T‑26/12, not published, EU:T:2015:437, paragraph 94), the Court stated that the contract between the exporting producer and one of the related distributors provided for the payment of a commission only on certain export sales, with the result that the related distributor did not receive any payment for sales made on the domestic market and that an adjustment had to be made solely to the export price.

53However, it cannot be concluded from that case-law that there is a general rule that, where a contract between an exporting producer and its related distributor provides for the payment of a commission or a mark-up for sales made on only one of the markets, an EU institution can never take into account the economic reality between those entities and the functions actually performed.

54Furthermore, although, in the judgment of 25 June 2015, PT Musim Mas v Council (T‑26/12, not published, EU:T:2015:437), the Court considered that only an adjustment to the export price was justified, it is not apparent from the facts of that case that the commission received by the related distributor in question for sales on the export market was also intended to cover its costs and to attribute a profit to it for sales functions performed on the domestic market. On the contrary, there was no justification for paying commission on domestic sales in that case.

55The situation is different in the present case. As stated in paragraphs 39 to 48 above, it is apparent from the documents on which the Commission relied and from the applicant’s own pleadings that Trade House performs the same functions and acts as an intermediary on the domestic market and on the export market. Although the commission is actually paid for sales on the domestic market, it also enables costs to be covered and for a profit to be attributed to Trade House for functions performed on the export market.

56Accordingly, the Commission was entitled to take the view, in its findings on the correctness of the facts, that, in the light of the evidence available to it, the commission paid by the applicant to Trade House was intended to remunerate the related distributor for functions performed both on the domestic market and on the export market, irrespective of the fact that the commission agreement provided for the payment of that commission only in respect of sales on the domestic market. The Commission therefore did not err in law or make manifest errors of assessment of the facts in deciding to allocate the commission paid to sales on the domestic market and on the export market.

57As regards the issue of the specific amount of the adjustment to which the export price and normal value could be subject, the Commission stated, in recital 65 of the provisional regulation, that it had ‘allocated the amount of the commissions paid to the related trader to both domestic and export sales based on the volume of those sales’. As stated in paragraph 36 above, the Commission applied an adjustment of 1.479% to the export price and to the normal value.

58On reading the ‘UPG’s Table DMSAL provided with the Definitive Disclosure’, set out in Annex A.5 to the application, and the ‘UPG’s Table EUSALUR provided with the Definitive Disclosure’, set out in Annex A.13 to the application, the Court understands that the percentage of 1.479% was obtained by dividing the total amount of commission received by Trade House (RUB 76 332 175.88) by the sum of the amounts of domestic sales (RUB 1 272 202 931) (approximately EUR 12 900 000), sales to independent customers in the European Union (RUB 2 577 886 910.30) (approximately EUR 26 130 000) and other export sales (RUB 1 309 273 392) (approximately EUR 13 270 000). It is thus apparent from those two annexes that that calculation methodology was used to determine the allocation key for commission applicable to domestic sales and to export sales to the European Union.

59It must also be stated that the Commission’s use of an adjustment of 1.479% to adjust the normal value and the export price was suggested by the applicant itself during the investigation.

60In its provisional comments of 28 June 2021 on dumping, set out in Annex A.11, the applicant suggested to the Commission that, if the Commission were to maintain its decision to reallocate the amount of commission paid to Trade House, it would have to take account of the fact that that related distributor was involved on the market for export both to the European Union and to third countries, with the result that a correct basis for the distribution of the amount of commission was 1.479%. In recital 48 of the contested regulation, the Commission stated that it had accepted that request.

61As regards the applicant’s argument relating to the contradiction as regards the taking into consideration of the total amount of commission in the calculation of the SG&A costs in Table G, the Court notes that the table in Annex A.12.B to the application, to which the applicant refers in paragraph 4 of the reply, does not correspond to the table which it reproduces in the same paragraph of the reply and does not include any column relating to the amount of commission received by Trade House for sales on the domestic market.

62However, the Commission produced the revised Table G on which it relied, in which the amount indicated for commission is 25 223 in the provisional disclosure and 18 882 in the definitive disclosure, the total amount of 76 332 being crossed out on each occasion where there is a comment on the cell in the table. The Commission therefore did not allocate the total amount of commission to domestic sales in Table G.

63It follows from the foregoing that the Commission did not make manifest errors of assessment of the facts or infringe Article 2(10)(i) of the basic regulation by reallocating the commission paid by the applicant to Trade House for sales on the domestic market to sales on the export market and by making a theoretical adjustment of 1.479% to both the normal value and the export price.

64The first plea must therefore be rejected as being unfounded.

The second and third pleas in law, alleging manifest errors of assessment of the facts, errors of law and infringement of the obligation to state reasons in the taking into account of reimbursements of transport costs for the export market

65Primarily, the applicant submits that the Russian Federation reimburses it approximately 80% of the transport costs incurred in transporting birch plywood to export markets, including the European Union, under the Russian railway tariff compensation scheme. There is no provision in that scheme for sales on the domestic market.

66The amounts of those reimbursements are predictable as soon as the sale is concluded. Thus, on the basis of Russian legislation and the applicant’s past experience, the applicant sets the export price by reasonably expecting that 20% of the transport costs will actually be incurred. The date on which reimbursement is actually requested or made is irrelevant. In accordance with Article 2(10)(e) of the basic regulation, the Commission should therefore have taken that into account when determining the adjustment of the export price for transport costs.

67In the alternative, the applicant submits that, since the reimbursements are made only in respect of export sales, they must be regarded as ‘other factors’ within the meaning of Article 2(10)(k) of the basic regulation, differentiating the domestic market and the export market and affecting price comparability. They therefore justify an upward adjustment of export prices. The obligation to take due account of differences affecting price comparability is also intended to neutralise differences which an exporter ‘could’ have passed on in its price, as is apparent from the Panel report entitled ‘United States – Anti-dumping measures on stainless steel plate in coils and stainless steel sheet and strip from Korea (United States – Stainless steel)’, adopted on 22 December 2000 (WT/DS 179/R, paragraph 6.77).

68The applicant also produced evidence to demonstrate that independent customers paid different prices on the domestic market and on the export market and that the reimbursement of transport costs affected price comparability, namely the binding Russian legislation, the applicant’s actual experience and the transparency and predictability of the system for submitting claims for reimbursements on the basis of invoices.

69The Commission therefore made manifest errors of assessment and infringed Article 2(10)(e) of the basic regulation or, in the alternative, Article 2(10)(k) of that regulation.

70Alternatively, the applicant submits that, in so far as the Commission was entitled to consider that the reimbursements did not affect solely export sales and did not justify an adaptation of the adjustments, it should also have allocated that amount as SG&A costs relating to sales on the domestic market, in accordance with Article 2(6) of the basic regulation.

71In that regard, the applicant submits that it was apparent from the column headed ‘total financial income’ from export sales, in Table G produced with the information accompanying the provisional regulation, that the Commission verified and accepted the amount of the reimbursements received under the Russian railway tariff compensation scheme. However, that amount disappeared from the version of that table which was set out in the definitive disclosure, without any explanation, when it should, at the very least, have been reflected in the columns corresponding to the domestic market. Moreover, the Commission did not justify its refusal to take that amount into account when constructing the normal value.

72The Commission therefore made manifest errors of assessment, infringed Article 2(6) of the basic regulation and failed to comply with its obligation to state reasons.

73The Commission disputes the applicant’s arguments.

The adjustment of the export price

75Article 2(9) of the basic regulation provides, inter alia, that, where the export price is constructed, adjustments are made for all costs, including duties and taxes, incurred between the importation and resale, and for profits accruing, so as to establish a reliable export price, at the EU frontier level. The items for which adjustment is 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.

76Article 2(10) of the basic regulation further provides that, in order to ensure a fair comparison between the normal value and the export price, due allowance, in the form of adjustments, is made in each case, on its merits, for differences in factors which are claimed, and demonstrated, to affect prices and price comparability. As regards transport costs, Article 2(10)(e) of that regulation provides that an adjustment is made for differences in the directly related costs incurred for conveying the product concerned from the premises of the exporter to an independent buyer, where such costs are included in the prices charged.

77Adjustments 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).

78As a preliminary point, the Court notes that the applicant does not dispute the calculation of the export price on the basis of Article 2(8) or (9) of the basic regulation, but the full deduction of transport costs when the export price is adjusted on the basis of Article 2(10)(e) of that regulation.

79In recitals 62 to 64 of the provisional regulation and in recitals 35 to 41 of the contested regulation, the Commission explained that it had adjusted the export price to take account of differences affecting prices and price comparability and had thus deducted the transport costs directly related to the delivery of the product concerned to the first independent customer, in accordance with Article 2(10)(e) of the basic regulation. It rejected the applicant’s claims that the system of reimbursement of transport costs should be taken into account when adjusting the export price, stating that the possibility of a subsequent reimbursement of those costs did not fall within the scope of that provision. The Commission added that the applicant had not adduced any evidence that its customers consistently paid different prices on the domestic market because of the alleged difference in the reimbursement of transport costs by the Russian authorities depending on whether the product is sold on the domestic market or on the export market, as required by Article 2(10)(k) of the basic regulation.

80In the first place, as regards the adjustment on the basis of Article 2(10)(e) of the basic regulation, the Court notes that it is made ‘for differences in the directly related costs incurred for conveying the product concerned from the premises of the exporter to an independent buyer, where such costs are included in the prices charged’ and that ‘those costs shall include transport, insurance, handling, loading and ancillary costs.’

81First of all, the Court notes that the very existence of a reimbursement scheme for transport costs in connection with sales on the export market and the lack of an equivalent scheme for sales on the domestic market are not disputed.

82In support of its request for an adaptation of the adjustment of the export price, the applicant refers to its reply to the Commission’s questionnaire, to the first deficiency letter and to its reply to the pre-remote cross-check letter.

83In that regard, it is apparent from the applicant’s reply to the Commission’s questionnaire, set out in Annex A.2 to the application, that, in the context of the transport support programme for civil industrial products, the Government of the Russian Federation covers up to 80% of the actual costs incurred by manufacturers when transporting their products to foreign markets. That reply specifies the amount received by the applicant as compensation, part of which concerned the export of the product concerned to the European Union, for the period from 25 April 2019 to 30 July 2020. The applicant added that it had reported the amount of the reimbursement, by which the cost of transportation to the European Union should be reduced, and stated that it had been able to link the amounts received to the transport costs incurred in connection with the sale of the products on export markets.

84In the applicant’s response to the first deficiency letter, set out in Annex A.4 to the application, and its response to the pre-remote cross-check letter, set out in Annex A.9 to the application, the applicant provides an explanation of the information contained in its accounting records, in which the reimbursements received for 2019 and 2020 are recorded, and explains how the amount of the requested adjustment was calculated. It follows that that amount corresponds to the reimbursement of railway transport costs incurred for exports, which is calculated on the basis of the amount submitted to the Ministry of Trade and Industry of the Russian Federation for reimbursement of transport costs on the basis of invoices and the total amount actually reimbursed. The reimbursement coefficient appears to be 97.3%, in the sense that 97.3% of the transport costs for which reimbursement is requested are granted. The applicant added that the amounts of the reimbursement for which an adjustment was requested were revised on the basis of the actual amount of the reimbursement that was claimed and received.

85In Annex A.9 to the application, the applicant also specified the amount of certain costs incurred and the request for reimbursement of the costs, on the basis of invoices issued by a transport company, an invoice for value added tax (VAT), receipts for Russian railway transport and customs declarations.

86The Commission also states, in paragraph 47 of the defence, that, as detailed in Annex A.4 to the application, it received from the applicant two registers of bills of lading which the applicant had sent to the Russian Government in order to claim reimbursement from it, establishing the reimbursements obtained by the applicant between 4 and 15 months after export.

87It is therefore apparent from those documents that the applicant produced evidence to identify the costs of sending certain products and to demonstrate that 80% of the transport costs incurred were the subject of a request for reimbursement and that 97.3% of those costs were actually reimbursed, which, moreover, is not disputed.

88However, the Court notes that the applicant has failed to demonstrate that that reimbursement was actually reflected in the export price, with the result that the reimbursed transport costs were not included in the prices charged, within the meaning of Article 2(10)(e) of the basic regulation.

89Although the applicant claims, in its provisional comments on dumping, set out in Annex A.11 to the application, that it is supposed to reflect, in its pricing decisions, the amount by which transport costs on export sales will be reduced, and that it does in fact do so, it has not produced any sufficient indicia or evidence to support those claims.

90Similarly, the fact that the amounts for which reimbursement is sought may be predictable, that the applicant can fix the export price on the date of sale of the products and record the sales by reasonably expecting that only 20% of the transport costs will be incurred and that that reasonable expectation is based on Russian legislation and its past experience does not demonstrate to the requisite legal standard that those reimbursements actually affected the level of export prices.

91The applicant has, therefore, failed to demonstrate that, by refusing to make an upwards adjustment of the amount of the export price, the Commission infringed Article 2(10)(e) of the basic regulation and made manifest errors of assessment of the facts in that regard.

92In the second place, Article 2(10)(k) of the basic regulation states that an adjustment may also be made for differences in other factors not provided for under Article 2(10)(a) to (j) of that regulation, if it is demonstrated that they affect price comparability as required under Article 2(10) of that regulation, in particular if customers consistently pay different prices on the domestic market because of the difference in such factors.

93It has already been held that it follows from the wording of Article 2(10)(k) of the basic regulation, interpreted in the light of the general scheme of Article 2(10), that the requirement to demonstrate a link between the alleged difference and prices is all the more compelling in such a case. If such a factor was not expressly mentioned in Article 2(10)(a) to (j) of the basic regulation, it is because the legislature did not consider that it was one of the factors which are, in most cases, likely to have a direct influence on prices and, consequently, on their comparability, but it cannot be excluded that this may be the case in certain particular circumstances (judgment of 20 September 2019, Jinan Meide Casting v Commission, T‑650/17, EU:T:2019:644, paragraph 305 (not published)).

94Therefore, contrary to what the applicant claims, it cannot be considered that, in order to be able make an adjustment, it would be sufficient for an exporter to be able to pass on the differences in transactions in the export price or the normal value.

95It is true that the Panel ruled, in paragraph 6.77 of Report WT/DS 179/R, on the interpretation of the concept of ‘differences in conditions and terms of sale’ within the meaning of Article 2.4 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 1A to the Agreement establishing the World Trade Organization (WTO) (OJ 1994 L 336, p. 3), which was transposed into EU law by Article 2(10) of the basic regulation. The Panel stated that, since those differences were among the ‘differences which affect price comparability’, the requirement to make due allowances for differences that affect price comparability was intended to neutralise differences in a transaction that an exporter could be expected to have reflected in its pricing.

96Nevertheless, first, it must be stated that such an interpretation was made in a specific factual context, relating to the taking into consideration of an unanticipated failure of a customer to pay for certain sales. Second, the Panel went on to state that ‘a difference that could not reasonably have been anticipated and thus taken into account by the exporter when determining the price to be charged for the product in different markets or to different customers is not a difference that affects the comparability of prices within the meaning of Article 2.4’ of the Anti-Dumping Agreement.

97The findings in the Panel report cannot therefore apply as such to the facts of the present case and be interpreted as requiring an institution to take into account any difference in transactions that might hypothetically have been passed on by an exporting producer in its prices, let alone not taken into consideration when determining the price.

98Thus, although the EU institutions have a duty to take steps to clarify the adjustment requested, they cannot be required to make an adjustment each time there is a possibility that factors may have an impact on prices. That would run counter to the wording of Article 2(10) of the basic regulation, which expressly requires that differences ‘affect price comparability’, as well as to the case-law developed in that regard.

99Although the applicant reiterates that the functioning of the scheme is such that it is possible to take into account the amount of the reimbursement in the price offered to customers in the European Union, and that the applicant can be expected to do so systematically, it has not adduced sufficient indicia or evidence that the reimbursements made under the railway tariff compensation scheme actually affected the export prices and, therefore, their comparability with the normal value, or that customers consistently paid different prices on the domestic market. The applicant’s assertions concerning the binding nature of the Russian legislation, its actual experience and the transparency and predictability of the system cannot be regarded as sufficient evidence to prove its claims.

100The applicant has therefore failed to demonstrate that, by refusing to make an upwards adjustment of the export price, the Commission infringed Article 2(10)(k) of the basic regulation and made manifest errors of assessment of the facts in that regard.

101Therefore, the applicant’s complaints alleging that the Commission made errors of law and manifest errors of assessment of the facts when it rejected the request that the amount of the adjustment of the export price be amended in order to take account of subsequent reimbursements of transport costs must be rejected as unfounded.

The SG&A costs in the context of the calculation of the normal value

–The manifest errors of assessment and infringement of Article 2(6) of the basic regulation

102The 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.

103In the present case, the Court notes that it is not apparent from the contested regulation or the provisional regulation that the Commission considered that reimbursements under the railway tariff compensation scheme did not affect solely export sales. On the contrary, as noted in paragraph 80 above, the existence of that scheme for transport costs incurred for sales on the export market and the absence of an equivalent for sales on the domestic market are not disputed.

104It is also apparent from the provisional comments on dumping, set out in Annex A.11 to the application, that the applicant accepted that the entry, in the column ‘total financial income’, for export sales in Table G, of a negative amount of RUB 71 350 000 (approximately EUR 720 000), corresponding to the reimbursements of transport costs for those sales, meant that no benefit from such a reimbursement was recognised for the purposes of determining the SG&A costs incurred on the domestic market. Similarly, in its definitive comments on dumping, set out in Annex A.6 to the application, the applicant reiterated that the reimbursements received under the railway tariff compensation scheme concerned only export sales and export prices.

105It is true that Table G produced with the information accompanying the provisional regulation, set out in Annex A.10 to the application, which indicated, in the column headed ‘total financial income’ from export sales, a negative amount of RUB 71 350 000, corresponding to the reimbursement of transport costs for sales of the product concerned on the export market, was amended. Thus, that amount was removed from Table G of Annex 2 to the definitive disclosure, set out in Annex A.17 to the application.

106However, it is apparent from recitals 42, 44 and 45 of the contested regulation that the removal of that amount from Table G was intended to respond to a comment by the applicant, in its provisional comments on dumping, set out in Annex A.11 to the application, according to which such an inclusion had to mean that the Commission had accepted that those reimbursements had a direct impact on the profitability of export sales and that the refusal to make an amendment to the adjustment of the export price accordingly constituted a manifest error of assessment of the facts and an infringement of Article 2(10)(k) of the basic regulation.

107It was therefore in order to respond to the applicant’s comments that the Commission produced a revised Table G.

108The applicant does not state the reasons why the refusal to amend the adjustment of the export price in order to take account of the reimbursements of transport costs and the removal of the amount of those reimbursements from the column entitled ‘total financial income’ from export sales in Table G mean that the Commission must allocate that amount to the SG&A costs when calculating the constructed normal value.

109Although the applicant, in its definitive comments on dumping, set out in Annex A.6 to the application, challenged the revision of Table G and the removal of the amount of reimbursement of transport costs from the column ‘total financial income’ from export sales, it merely requested that that amount then be reflected in the columns for domestic sales of the product concerned, in order to reduce the amount of SG&A costs incurred in respect of domestic sales. The assumption that the removal of the amount of reimbursements from the export sales column means that it must be allocated to all sales is not supported by any concrete argument.

110Accordingly, the applicant has failed to demonstrate that the Commission made manifest errors of assessment of the facts or infringed Article 2(6) of the basic regulation and the applicant’s complaints in that regard must be rejected as unfounded.

–The infringement of the obligation to state reasons

111As a preliminary point, the Court notes that, according to the case-law, it cannot substitute other grounds relied on for the first time before it for the grounds relied on during the investigation procedure and in the contested regulation (see, to that effect, judgments of 3 September 2015, Inuit Tapiriit Kanatami and Others v Commission, C‑398/13 P, EU:C:2015:535, paragraph 22 and the case-law cited, and of 1 June 2017, Changmao Biochemical Engineering v Council, T‑442/12, EU:T:2017:372, paragraph 153 and the case-law cited).

112It must be noted that the Commission’s assessments, relating to the fact that the reimbursements of export transport costs constitute revenue from a prohibited export subsidy and cannot be regarded as ‘costs’ or ‘pertaining to production and sales’ of the like product within the meaning of Article 2(6) of the basic regulation, constitute such grounds relied on for the first time before the Court.

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 the measure in question 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).

113Similarly, in the case of a regulation, the statement of reasons may be limited to indicating the general situation which led to its adoption, on the one hand, and the general objectives which it is intended to achieve, on the other. Consequently, it is not possible to require that the EU institutions should set out the various facts, which are often very numerous and complex, on the basis of which the regulation was adopted, or a fortiori that they should provide a more or less complete evaluation of those facts (judgment of 10 September 2015, Fliesen-Zentrum Deutschland, C‑687/13, EU:C:2015:573, paragraph 77).

114In the present case, as stated above, it can be inferred from recitals 42 to 45 of the contested regulation and from Annex 2 to the Commission’s definitive disclosure, set out in Annex A.17 to the application, that the removal of the amount of the reimbursements of transport costs from Table G was intended to address the applicant’s concern regarding the possible acceptance of its claim for adjustments of the export price, on the basis of Article 2(10)(e) and (k) of the basic regulation.

115The Commission cannot therefore be criticised for not having put forward, in the contested regulation, the fact that the amount of reimbursements of transport costs for export sales should not be taken into account in the SG&A costs when constructing the normal value, since, according to the case-law referred to in paragraph 113 above, the statement of reasons required by Article 296 TFEU does not require that institution to set out exhaustively the various facts, which are often very numerous and complex, on the basis of which a regulation imposing anti-dumping duties was adopted, or a fortiori that it should provide a more or less complete evaluation of those facts.

116In addition, the explanations provided by the Commission in its pleadings before the Court, and those provided in response to the questions put by the Court by way of measures of organisation of procedure, contain details and additional information on the reasons set out in the contested regulation and in Annex 2 to the Commission’s definitive disclosure, which constitute a sufficient statement of reasons, on the basis of which the Commission rejected the applicant’s requests that the amount of the reimbursements of transport costs be taken into account in the calculation of the dumping margin.

117Since the essential objective pursued by the Commission was apparent from the contested regulation, that regulation did not have to include specific reasons for each of the numerous factual arguments relied on with regard to that calculation.

118Therefore, the Commission did not fail to fulfil its obligation to state reasons. The applicant’s complaint in that regard must, therefore, be rejected as unfounded and, accordingly, the second and third pleas must be rejected in their entirety.

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

119The applicant submits 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.

120There 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.

121The applicant adds 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.

122The price undercutting calculations showed that 19% of the applicant’s 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 applicant’s sales, represent only 40% of its sales and that the average price of comparable sales of the Union producers is 17% lower than the average price of all their products. The applicant adds that more than 55% of the sales of the sampled Union producers are not in competition with Russian plywood. According to the applicant, the injury suffered by the Union industry cannot therefore result from imports of birch plywood from Russia.

123The 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.

124Therefore, 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.

125The Commission, supported by the interveners, disputes the applicant’s arguments.

126The Court considers it appropriate to examine the applicant’s 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.

The definition of the product concerned

127As 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.

128It 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.

129However, 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).

130In 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).

131The 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).

132It 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).

133In 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).

134Indeed, 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).

135Moreover, in the light of the indicative nature of the criteria referred to in paragraph 132 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).

136Lastly, 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).

137It is therefore necessary to ascertain whether the applicant is 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.

138In 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).

139In 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.

140In order to claim that those factors were assessed incorrectly, the applicant points to the differences in terms of dimensions and shape which, in its 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.

141In that regard, the Court notes that the applicant has 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.

142Nor has the applicant 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.

143On the contrary, as the interveners submit, it is apparent from the applicant’s commercial brochure on birch plywood which it produces, 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).

144In 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.

145Although the applicant submits that it 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 applicant.

146Moreover, it is apparent from paragraph 125 of the application and from the applicant’s provisional comments on injury, set out in Annex A.18 to the application, that the applicant 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.

147The Court also notes that the applicant has not demonstrated that square birch plywood and rectangular birch plywood are intended for different uses. To that end, the applicant merely refers to its own provisional comments on injury, set out in Annex A.18 to the application, to the request by the Sveza Group for exclusion of the product, set out in Annex A.19 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.20 to the application. As regards the reference to the complaint lodged by the Woodstock Consortium, set out in Annex A.21 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.

148The applicant states, 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. It also refers to Sveza-Les LLC’s responses to the observations on the request for exclusion of the product, set out in Annex A.20 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 applicant recognises that there is a certain degree of interchangeability between rectangular and square plywood.

149The 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).

150As 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.

151Thus, 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.

152Lastly, as regards the applicant’s 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 applicant has 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.

153It must therefore be concluded that the applicant has 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.

154In 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).

155In that regard, the Court considers that the applicant’s 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).

156It follows from paragraphs 139 to 152 above that square birch plywood and rectangular birch plywood may be interchangeable. Thus, they are in competition to a certain degree.

157In 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 applicant compared prices and the percentage of sales of square birch plywood produced by the Union industry.

158It is apparent from the documents in Annexes A.22 and A.23 to the application that the applicant 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. It also stated, in paragraph 93 of the application, referring to Annex A.22 to the application, that the square plywood produced by the applicant was 27% cheaper than the rectangular plywood and that, for comparable sales by Union producers, square plywood was 18% cheaper, which therefore showed that the applicant acknowledged that there are Union producers of square birch plywood.

159Therefore, the applicant’s 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.

160The applicant’s complaints relating to manifest errors of assessment of the facts in the definition of the product concerned must, therefore, be rejected as unfounded.

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

161According 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).

162Article 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.

163According 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).

164Furthermore, 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).

165Accordingly, 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).

166However, 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).

167Accordingly, 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).

168By 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).

169Furthermore, 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).

170In 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.

171As follows from paragraph 156 above, square birch plywood and rectangular birch plywood may be interchangeable and in competition with each other to a certain degree.

172In 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.22 to the application, the applicant states that its sales of square plywood represent 6% of its total sales on the EU market. As the Commission submits, it therefore follows that rectangular plywood represents 94% of the applicant’s sales, which the applicant does not dispute.

173The applicant is therefore wrong to claim that its imports are concentrated on square plywood. The same applies to the claim that the imports from Russia are concentrated on a different market segment.

174In the complaint lodged by the Woodstock Consortium, set out in Annex A.21 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.

175As regards the applicant’s 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 applicant.

176The applicant also claims that 19% of its 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 applicant’s sales account for only 40% of its sales, and that more than 55% of Union producers’ sales are not in competition with Russian plywood.

177However, 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.

178Second, it must be stated that it is apparent from Annex A.22 to the application that the applicant obtained those percentages by comparing only its imports with Union production. The applicant is not the only exporting producer of birch plywood originating in Russia which the Commission took into account in the sample, since the companies belonging to the Sveza Group and Syktyvkar Plywood Mill Ltd were also selected.

179Moreover, if 19% of the applicant’s sales are not comparable to the Union producers’ sales, that means that 81% of its sales are in fact comparable. In addition, the sales made by the Union producers that can be compared to the applicant’s sales represent 40% of the latter’s sales. There is therefore a relatively high number of matches for a single exporting producer.

180Nor has the applicant explained how it reaches 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.

181Moreover, the applicant wrongly infers 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 applicant’s 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.

182Accordingly, the applicant’s 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 applicant’s complaints in that regard must be rejected as unfounded.

Infringement of the obligation to state reasons