Opinion of Advocate General Campos Sánchez-Bordona delivered on 9 July 2020.#RFA International, LP v European Commission.#Appeal – Dumping – Imports of ferro-silicon originating in Russia – Regulation (EC) No 1225/2009 – Article 11(9) and (10) – Rejection of applications for a refund of anti-dumping duties paid – Constructed export price – Assessment as to whether the anti-dumping duties have been reflected in the resale prices and subsequent selling prices in the European Union – Obligation to apply the same methodology as in the investigation which led to the imposition of the anti-dumping duty – Change in circumstances – Deduction of anti-dumping duties paid – Conclusive evidence.#Case C-56/19 P.

1.

In 2008, the Council adopted Regulation (EC) No 172/2008 ( 2 ) imposing a definitive anti-dumping duty on imports of ferro-silicon (an alloy used in the manufacture of iron and steel) originating, inter alia, in Russia. ( 3 )

2.

That regulation set an anti-dumping duty (22.7%) applicable to the net, free-at-Union-frontier price, before customs clearance, for the products manufactured by two companies established in Russia ( 4 ) and related to RFA International, LP (‘RFA’). ( 5 )

3.

The companies subject to the anti-dumping measures under the initial regulation brought a series of applications for partial annulment or for review of the regulation or for a refund of the anti-dumping duties already paid.

4.

RFA, in particular, applied for a refund in respect of amounts paid by way of anti-dumping duties between 1 October 2010 and 31 December 2012.

5.

On 18 December 2014, the Commission refused that refund application by Decisions C(2014) 9805 final, C(2014) 9806 final, C(2014) 9807 final, C(2014) 9808 final, C(2014) 9811 final, C(2014) 9812 final and C(2014) 9816 final (‘the decisions at issue’).

6.

On 4 March 2015, RFA brought an action before the General Court seeking annulment of those decisions, claiming that they infringed various provisions of Regulation (EC) No 1225/2009. ( 6 )

7.

The General Court dismissed RFA’s action by judgment of 15 November 2018, ( 7 ) the judgment which is now under appeal.

8.

According to Article 11 of Regulation No 1225/2009:

‘…

8.   Notwithstanding paragraph 2, an importer may request reimbursement of duties collected where it is shown that the dumping margin, on the basis of which duties were paid, has been eliminated, or reduced to a level which is below the level of the duty in force.

In requesting a refund of anti-dumping duties, the importer shall submit an application to the Commission. The application shall be submitted via the Member State of the territory in which the products were released for free circulation, within six months of the date on which the amount of the definitive duties to be levied was duly determined by the competent authorities or of the date on which a decision was made definitively to collect the amounts secured by way of provisional duty. Member States shall forward the request to the Commission forthwith.

An application for refund shall only be considered to be duly supported by evidence where it contains precise information on the amount of refund of anti-dumping duties claimed and all customs documentation relating to the calculation and payment of such amount. It shall also include evidence, for a representative period, of normal values and export prices to the Community for the exporter or producer to which the duty applies. In cases where the importer is not associated with the exporter or producer concerned and such information is not immediately available, or where the exporter or producer is unwilling to release it to the importer, the application shall contain a statement from the exporter or producer that the dumping margin has been reduced or eliminated, as specified in this Article, and that the relevant supporting evidence will be provided to the Commission. Where such evidence is not forthcoming from the exporter or producer within a reasonable period of time the application shall be rejected.

The Commission shall, after consultation of the Advisory Committee, decide whether and to what extent the application should be granted, or it may decide at any time to initiate an interim review, whereupon the information and findings from such review carried out in accordance with the provisions applicable for such reviews, shall be used to determine whether and to what extent a refund is justified. …

9.   In all review or refund investigations carried out pursuant to this Article, the Commission shall, provided that circumstances have not changed, apply the same methodology as in the investigation which led to the duty, with due account being taken of Article 2, and in particular paragraphs 11 and 12 thereof, and of Article 17.

10.   In any investigation carried out pursuant to this Article, the Commission shall examine the reliability of export prices in accordance with Article 2. However, where it is decided to construct the export price in accordance with Article 2(9), it shall calculate it with no deduction for the amount of anti-dumping duties paid when conclusive evidence is provided that the duty is duly reflected in resale prices and the subsequent selling prices in the Community.’

9.

In order to have a better understanding of the sequence of events, it is worth recalling the procedural course of the claims made by RFA (and the companies related to it) in connection with those anti-dumping duties, to which both the General Court and the Court of Justice have had to respond.

10.

Following the approval of the initial regulation in 2008, CHEMK and KF brought an action before the General Court seeking partial annulment of that regulation.

11.

The General Court dismissed that action by judgment of 25 October 2011, ( 8 ) against which the applicant companies brought an appeal.

12.

The Court of Justice dismissed the appeal by judgment of 28 November 2013. ( 9 )

13.

On 30 November 2009, CHEMK and KF sought an interim review of the initial regulation.

14.

Those proceedings culminated in the adoption of Implementing Regulation (EU) No 60/2012, ( 10 ) which confirmed the original anti-dumping measure.

15.

CHEMK and KF brought an action before the General Court seeking a declaration partially annulling Implementing Regulation No 60/2012.

16.

The General Court dismissed that action by judgment of 28 April 2015, ( 11 ) against which the applicant companies brought an appeal.

17.

The Court of Justice dismissed that appeal by order of 9 June 2016. ( 12 )

18.

Between 30 July 2009 and 10 December 2010, CHEMK and KF submitted a number of applications for a refund of the anti-dumping duties paid between 7 January 2009 and 10 December 2010.

19.

The refund investigation concentrated on the period between 1 October 2008 and 30 September 2010, which the Commission divided into two sub-periods: ‘the first refund investigation period’, from 1 October 2008 to 30 September 2009, and ‘the second refund investigation period’, from 1 October 2009 to 30 September 2010.

20.

On 10 August 2012, the Commission issued Decisions C(2012) 5577 final, C(2012) 5585 final, C(2012) 5588 final, C(2012) 5595 final, C(2012) 5596 final, C(2012) 5598 final and C(2012) 5611 final, in which it upheld the refund applications in relation to the first refund investigation period and rejected those relating to the second period.

21.

RFA challenged those decisions before the General Court, which dismissed its action by judgment of 17 March 2015. ( 13 )

22.

RFA brought an appeal against the General Court’s judgment of 17 March 2015. The Court of Justice dismissed the appeal by judgment of 4 May 2017. ( 14 )

23.

Between 1 March 2011 and 26 June 2013, RFA filed further applications for the refund of anti-dumping duties, this time for the period between 1 October 2010 and 31 December 2012.

24.

In the decisions at issue, after identifying two sub-periods (‘the third refund investigation period’, from 1 October 2010 to 31 December 2011, and ‘the fourth refund investigation period’, from 1 January 2012 to 31 December 2012), the Commission rejected RFA’s applications.

25.

On 4 March 2015, RFA lodged a (fourth) action for annulment before the General Court, contesting those decisions. The General Court dismissed its claims by judgment of 15 November 2018, against which RFA has brought this appeal.

26.

On expiry of the anti-dumping measures laid down in the initial regulation, the Commission commenced an expiry review which concluded with Commission Implementing Regulation (EU) No 360/2014, ( 15 ) which retained the 22.7% anti-dumping duty set by the initial regulation.

27.

CHEMK and KF brought an action challenging Implementing Regulation No 360/2014 before the General Court, which dismissed their action by judgment of 15 November 2018. ( 16 ) That judgment has become final.

28.

The action for annulment of the decisions at issue lodged by RFA on 4 March 2015 contained three pleas in law, only the second of which is relevant here, alleging as it does that those decisions infringed Article 11(9) and (10) of the basic regulation.

29.

As regards the arguments of RFA and the Commission on that plea, I refer to paragraphs 58 to 68 of the judgment under appeal, in which the General Court summarised each party’s arguments.

30.

I will therefore confine myself to reproducing paragraphs 69 to 75 and 77 to 79 of the judgment under appeal, in which the General Court set out its reasons for rejecting that plea for annulment. It did so as follows:

…

31.

The appeal was lodged at the Registry of the Court of Justice on 25 January 2019.

32.

RFA asks the Court to set aside the judgment under appeal and to give a final judgment in the matter, if the state of the proceedings so permits. In the alternative, it requests that the case be referred back to the General Court. In any event, RFA claims that the Commission should be ordered to pay the costs.

33.

The Commission asks the Court to dismiss the appeal and to order RFA to pay the costs.

34.

The hearing set for 25 March 2020 was replaced by questions put by the Court to the parties, to be answered in writing.

35.

It emerges from reading the background to the dispute that, since the time when the initial regulation imposed the anti-dumping duties, the dispute has followed an eventful course that must be borne in mind when deciding on this appeal (applications for annulment, applications for refunds of duties paid and interim as well as expiry review investigations).

36.

It is therefore worth calling to mind, before embarking on examination of the grounds of appeal, how, in abstract terms, once anti-dumping duties have been approved, they can be either reviewed or an application can be made for them to be refunded, as laid down in the basic regulation.

37.

As regards review, for its part, the Court of Justice held as follows in its judgment of 18 September 2014: ( 18 )‘… an expiry review pursuant to Article 11(2) of the basic regulation is essentially a matter of assessing whether the expiry of the original anti-dumping measure would be likely to result in a continuation or recurrence of dumping and injury. … as regards an interim review pursuant to Article 11(3) of that regulation, the Commission may, in order to propose repealing, amending or maintaining the anti-dumping duty established as a result of the original investigation, inter alia, consider whether the circumstances with regard to dumping and injury have changed significantly or whether existing measures are achieving the intended results in removing the injury previously established’.

38.

The refund procedure, in turn, although similar to the interim review procedure (indeed, under the fourth subparagraph of Article 11(8) of the basic regulation, the two procedures can take place cumulatively), allows the Commission to analyse only the actual dumping margin but not to re-examine the overall question of injury.

39.

The factors common to the review and the refund of duties paid procedures are contained in Article 11(9) and (10) of the basic regulation, which are precisely the provisions that RFA claims were infringed by the General Court:

40.

RFA states that its appeal ‘is limited to challenging the General Court’s findings on the Appellant’s second plea at first instance, more specifically paragraphs 69-75 and 77-79 of the Contested Judgment’. ( 19 )

41.

That ground of appeal is divided into two parts.

42.

RFA’s argument in relation to the alleged failure to state reasons is put succinctly. It amounts only to stating that ‘the General Court fails to address the Appellant’s argument on the lack of a change of circumstances’. ( 20 )

43.

According to the Commission, the General Court is not obliged to reply exhaustively to each and every one of the appellant’s allegations, and a statement of reasons implied in the grounds of its decision is sufficient.

44.

It is hard to understand RFA’s criticism on this point, given that it acknowledged that ‘the General Court ruled that the production cost increases constituted a change of circumstances justifying a change in methodology to calculate the export price under Article 11(9)’. ( 21 )

45.

The General Court did in fact, in the grounds of the judgment under appeal, explain why, in its view, there were sufficient reasons to justify the Commission changing its calculation methodology.

46.

Specifically, it emphasised in paragraph 70 of that judgment that the need to use the same method can be set aside ‘if the relevant parameters have sufficiently changed to render the application of the methodology previously used inappropriate for the purpose of giving a reliable result’.

47.

On that premiss, the General Court stated that, in this case, those parameters, in particular, the production costs, had changed. Admittedly (and potentially thereby causing a degree of confusion), that variation in production costs is also a factor in assessing whether, by virtue of Article 11(10) of the basic regulation, the anti-dumping duties should be disregarded when constructing the export price. However, that does not mean, in substantive terms in the General Court’s reasoning, that the same increase in production costs cannot also be regarded as a decisive factor in the change in circumstances that justified changing the methodology used.

48.

That being so, there was no failure to state reasons by the General Court such as to justify setting aside the judgment under appeal. The reasons it set out, even if they were incorrect, exist and are sufficient to enable the appellant to understand their import, which it disputes on the substance.

49.

It must also be borne in mind that, in the decisions at issue, the Commission highlighted a series of factual changes and significant variations that occurred during the ongoing investigation, compared with the situation at the time of the original investigation, which justified changing the methodology.

50.

Of those changes, the General Court dwelt on the increase in the production costs, which makes sense since RFA also alluded to that factor in its application, even though others were also present. ( 22 )

51.

Lastly, as the Court of Justice had the opportunity to set out in its judgment of 4 May 2017, ( 23 ) in response to a similar argument put forward by RFA, it is sufficient to note that, in the context of an appeal, the purpose of review by the Court of Justice is, inter alia, to consider whether the General Court responded to the requisite legal standard to all the arguments raised by the appellant. It has done so in this case.

52.

I would add, in any event, that, although one or two passages in paragraphs 69 and 78 of the judgment under appeal might suggest at first glance that the General Court’s reasoning goes beyond the arguments put forward by the Commission, that does not mean that it has substituted the reasons given in the decisions at issue, but that it has merely supplemented those reasons. That is why RFA, quite correctly, does not allege any such apparent substitution of grounds in its first ground of appeal.

53.

RFA summarises its arguments as follows: ‘when assessing whether the anti-dumping duties had been reflected in the resale prices, the Commission did not do so on the basis of the resale prices identified in the investigation leading to the initial regulation, but on the basis of current production costs in Russia. This constitutes a change in methodology within the meaning of Article 11(9) of the Basic Regulation. The Commission observed that … the circumstances had significantly changed since the initial investigation and in particular, the Russian exporters’ production costs had increased by around 100%. However, costs increases existed and were already known during the 2008-2010 refund investigation periods’.

54.

The Commission relies on the wording of Article 11(9) to argue that the only valid benchmark is that used in the initial regulation, since that was the regulation that ‘led to the duty’.

55.

As already indicated, Article 11(9) of the basic regulation refers, on the one hand, to ‘the investigation that led to the duty’ and, on the other, to the review or refund investigations. The same method must be used in the review and refund investigations as in the investigation that led to the duty, unless circumstances have changed.

56.

The article it is alleged has been infringed therefore only requires the Commission to use subsequently ‘the same methodology as in the investigation which led to the duty’. Since, in this case, the anti-dumping duty was established by the initial regulation, the wording of the article means that the benchmark to be used must be the method used in the initial investigation rather than the method used at any other time.

57.

Having set down that premiss (which, as the Commission notes in its rejoinder, RFA accepts, belatedly, in paragraph 9 of its reply, in contrast to what appeared to emerge from paragraph 25 of its appeal), the second part of the first ground of appeal should not be upheld.

58.

In its appeal, RFA asserts that the Commission should have used the same methodology as in subsequent investigations other than the investigation that led to imposition of the anti-dumping duties in 2008. Specifically, it criticises the Commission (and the General Court, because it endorsed the Commission’s thesis) for not adopting the method it had already used when it ruled on the refund of anti-dumping duties corresponding to other earlier periods. ( 24 )

59.

There may conceivably be a legal basis for RFA’s thesis other than the one it has chosen (infringement of Article 11(9) of the basic regulation). However, in the appeal, the only legal provision that it claims has been infringed and to which the Court of Justice must have regard, is indeed Article 11(9) of the basic regulation, which RFA claims has been misinterpreted by the General Court.

60.

That being so, the first ground of appeal cannot succeed since, I reiterate, the interpretation that RFA is proposing, to counter that of the General Court, conflicts with the wording of that article.

61.

In any event, as the General Court noted, the Commission would be justified in using a new method, other than that used in earlier investigations, if there were found to have been a change in circumstances. Paragraph 70 of the judgment under appeal refers to that contingency: ‘while ensuring the solidity, in the economic analysis, of the comparison of the situation between two periods justifies, as a rule, the application of the same methodology, that is not the case if the relevant parameters have sufficiently changed to render the application of the methodology previously used inappropriate for the purpose of giving a reliable result’. In that passage the General Court confirms what the Court of Justice had already held in Valimar.

62.

However, determining whether or not there was, de facto, a change of circumstances involves an appraisal that, in common with all the other alleged ‘substantially incorrect findings of fact’ which RFA levels against the General Court, cannot serve as the basis for an appeal of this kind, which is limited to questions of law and not questions of fact.

63.

There is indeed established case-law to the effect that the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts. ( 25 ) The factual findings in the judgment under appeal therefore cannot be challenged on appeal, unless it is argued that it is obvious from the documents in the case file that the evidence has been distorted, which is not the case here.

64.

In any event, since the dispute centres on whether or not the anti-dumping duties were subsequently passed on (which is the true nub of the dispute), Article 11(9) of the basic regulation is not the provision best suited to resolving it. In the initial investigation, it is not possible to talk of a methodology capable of clarifying whether anti-dumping duties were passed on or otherwise: that information is necessarily absent from any initial investigation, whose purpose is, precisely, to establish the anti-dumping duty.

65.

Accordingly, by definition there can be no single methodology that is common to the initial investigation and subsequent refund investigations, as regards whether or not the anti-dumping duties were reflected in the resale prices of the products in the European Union. By the same token, it is impossible to speak of a change in methodology, since, I repeat, in the original investigations there is by definition no methodology whatsoever for verifying whether a hitherto non-existent anti-dumping duty is reflected in the resale prices.

66.

The requirement that the methodology must not change (unless there is a change in circumstances), established in Article 11(9) of the basic regulation, accordingly does not apply in such situations.

67.

RFA summarises its second ground of appeal as follows: ‘the General Court wrongly interpreted Article 11(10) of the Basic Regulation by applying an erroneous legal test. The legal test designed by the General Court requires that evidence of incorporation of the anti-dumping duties in the export prices could only be made through DDP pricing data and by showing that not only the anti-dumping duties were captured in the new prices but also the entirety of any production costs incurred. Neither Article 11(10) of the Basic Regulation, nor the Commission Notice concerning the reimbursement of anti-dumping duties [ ( 26 )] contain such a requirement.’

68.

RFA takes issue with paragraphs 72 to 75 of the judgment under appeal, contending that Article 11(10) of the basic regulation only requires the producer to submit conclusive evidence that the duty has been duly reflected in the selling prices in the European Union.

69.

According to RFA, it is enough that the resale prices have increased sufficiently compared with the prices apparent in the course of the initial investigation. Were it relevant to consider the production costs for that purpose, the Commission should have expanded point 4.1(b) of its Notice concerning the reimbursement of anti-dumping duties ( 27 ) in order to include those costs.

70.

The Commission maintains that the applicant is required to prove not only that there has been an increase in the resale prices, but that the duty ‘is duly reflected in’ those prices.

71.

Under the first subparagraph of Article 11(8) of the basic regulation, refund proceedings are predicated on the importer showing that the dumping margin on the basis of which duties were paid has been eliminated or reduced to a level which is below the level of the duty in force.

72.

Under Article 11(10) of the basic regulation, it is permissible not to deduct the anti-dumping duties paid, when constructing the export price (in accordance with Article 2(9)). However, that option is only available ‘when conclusive evidence is provided that the duty is duly reflected in resale prices and the subsequent selling prices in the Community’.

73.

The appeal singles out, in that article, a question that, given its potential implications for other situations, needs to be analysed in general terms before specific attention is given to the circumstances of this case.

74.

RFA’s line of argument, which it repeats more than once, is that during examination, following the provision of conclusive evidence, of whether the anti-dumping duties have been incorporated (or reflected) in the resale prices, it is not appropriate to assess the influence of other factors, as allowed by the General Court, following the line taken by the Commission. Accordingly, it is sufficient that the new prices are higher than the former prices plus anti-dumping duties for it to be found that those duties have been incorporated.

75.

I do not share that view. To my mind, it makes more sense (and better meets the needs of a comprehensive interpretation of the provision concerned) to hold that an increase in the resale prices in the European Union, compared with the original resale prices, does not automatically imply that the anti-dumping duties have been duly and fully reflected in those final prices.

76.

Indeed, it can be inferred that the new prices, even if they are higher than the former prices, do not duly reflect (that is to say, do not incorporate) the anti-dumping duties if: a) the production costs have increased significantly in the intervening period; and b) the new resale prices do not reflect that cost increase.

77.

That reasoning, which I have no doubt is correct, is, in essence, the reasoning used by the General Court: ‘Article 11(10) of the basic regulation in no way implies, in so far as it relates to the issue of whether “the duty is duly reflected in resale prices”, that only the equivalent of the anti-dumping duty should be incorporated into the new resale price over and above the resale price previously charged in order to benefit from a positive response. An additional duty in relation to the costs normally incurred is “duly reflected” only if it is added to those other costs. If those other costs increase, but the resale price increases by a lesser amount, the duty is in fact only partially added to those costs or not at all, even if the equivalent of the duty has been added to the resale price previously charged.’ ( 28 )

78.

I would add that, in any event, as the Commission correctly states, the Commission’s administrative practice cannot amend binding legal provisions adopted by the EU institutions.

79.

The General Court explained why the appellant’s reliance on the fact that the resale prices had increased by more than 100% between the original investigation period and the fourth refund investigation was insufficient to demonstrate that the anti-dumping duties were fully reflected in those prices.

80.

According to the General Court, ‘it is sufficient … if the production costs have increased more than the prices charged in order for those prices not to reflect the anti-dumping duties duly, given the change in production costs. That is a priori proven by the fact, found by the Commission, that in 99% of cases the cost of the products, inclusive of anti-dumping duty, was not covered by the resale prices in the European Union in 2012.’ ( 29 )

81.

The General Court rejected the claim that RFA had provided ‘conclusive evidence’ that the anti-dumping duty was reflected in the resale price with the result that the anti-dumping duties paid should not be deducted. As I will discuss more fully below, it is common ground that the burden of proving that the deduction should not be made lies with the economic operator and not with the Commission, whose function is to assess whether or not the evidence presented by the economic operator is conclusive.

82.

Once again, I must emphasise that the General Court’s findings on the factual evidence cannot be reviewed on appeal, except via the limited remedies referred to above. ( 30 ) In this case, furthermore, the appellant was required to provide a particularly high level of proof since it had to furnish evidence that conclusively demonstrated the fact at issue.

83.

If, in the light of that requirement, the General Court has indicated, stating reasons, why RFA has not in its view succeeded in demonstrating that fact, it will be very hard for the Court of Justice to review that finding on appeal. None of the exceptional grounds (manifest distortion of the facts, obvious from documents in the case file that prove such distortion) is present in this case.

84.

It must also be recalled that, when examining the factors which the Commission took into account, the General Court must bear in mind that ‘in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the Community institutions enjoy a broad discretion by reason of the complexity of the economic, political and legal situations which they have to examine’. ( 31 )

85.

As applied to the present case, that principle suggests that the Commission’s stance should be upheld and imposes an even greater burden of proof on the applicant if it is to discredit the grounds of the decisions at issue. ( 32 )

86.

Lastly, it should be recalled that the fourth refund investigation period is the same time period as that used in the expiry review investigation which gave rise to Implementing Regulation No 360/2014. As I have indicated, the action brought against that regulation, by CHEMK and KF (undertakings related to RFA), was dismissed by the General Court in its judgment of 15 November 2018, ( 33 ) which is now final.

87.

That action also analysed the change in methodology from that used in the interim review investigation and looked at the increase in the production costs as a decisive factor in whether the anti-dumping duties should be deducted when constructing the export price, reaching the same conclusions as the judgment now under appeal. The similarity with this case is very striking and the outcome decided upon by the General Court concurs with my reply to this part of the second ground of appeal.

88.

RFA criticises the General Court, in paragraphs 77 and 78 of the judgment under appeal, for allowing only the option of providing DDP prices as evidence that the anti-dumping duties had been included in the resale price.

89.

It relies here on point 4.1(b) of the Commission Notice concerning the reimbursement of anti-dumping duties and adds that no applicable legal provision prescribes whether it is necessary to provide DDP prices or to refer to EXW or CIF prices that include the anti-dumping duties.

90.

To counter that proposition, the Commission argues that, under Article 11(10) of the basic regulation, the rule is that the duty is deducted when constructing export prices, and, if it is not to be deducted, there must be conclusive proof that it has been incorporated in the resale prices.

91.

According to the Commission, the General Court did not narrow down the types of evidence available to the appellant, but used the evidence that the appellant provided. Furthermore, it reiterates that it is not sufficient that the resale prices fluctuate; it must be proven that the anti-dumping duty is reflected in the resale prices.

92.

In contrast to RFA’s assertion, in the judgment under appeal the General Court did not restrict the scope of the types of evidence available to the appellant. It did, on the contrary, have regard to the principle already established in Einhell Germany and Others v Commission: ‘provided that it is “conclusive”, evidence that the anti-dumping duties have been reflected in the resale prices and subsequent selling prices in the European Union may be adduced by any means’. ( 34 )

93.

The judgment under appeal, I would emphasise, did not place a limit on the evidence that RFA had to provide. It merely explained why the evidence that it did submit was not appropriate, in this case, to satisfy the requirement for conclusive evidence that the anti-dumping duty was reflected in the resale prices.

94.

This is a factual situation that must be analysed on a case-by-case basis. The Commission explained how in the earlier investigations it was able to draw conclusions from the evidence gathered, including an analysis of changes in the resale prices, and immediately examined in greater depth certain data which caused it to believe that the facts provided were not reliable.

95.

The fact that a particular solution is arrived at in a given context does not mean that a different context must lead to the same outcome. Accordingly, it was necessary to focus, as in fact occurred, on the circumstances relating to the new refund investigation periods.

96.

RFA submitted as evidence a table showing how its average weighted EXW and CIF prices had evolved, from the initial investigation up to the fourth investigation period, attempting thereby to demonstrate that its resale prices included the anti-dumping duty.

97.

The decisions at issue contained various submissions in which the Commission set out why that data, furnished by RFA, was unreliable. In the action for annulment, the applicant sought to have the General Court accept its statements without their being tested further, which the Commission refused to do.

98.

The General Court, when it verified the evidence (which it had to appraise on the terms referred to above), endorsed the assessment of the evidence carried out by the Commission, and that finding in the judgment under appeal, as I have already indicated, cannot be challenged on appeal, save by way of the limited remedy available where the facts considered to have been proven were distorted, which has not occurred here.

99.

In contrast to its claims before the General Court, ( 35 ) RFA has not brought over to the appeal the criticism that, if the Commission took the view that some cost information was unreliable, it should have reported this to RFA during the verification visits, or as soon as possible, so that RFA could rectify that information.

100.

Since that claim has been excluded from the appeal, the Court of Justice is of course not required to examine it.

101.

Nevertheless, to dispel any doubt in that regard, it may be worth recalling that, in the context of Article 11(10) of the basic regulation, the Commission is not obliged to act of its own initiative, but rather only to assess any conclusive evidence provided to it by the party requesting the refund investigation. ( 36 ) It is the requesting party, not the Commission, that has the burden of proving, to the high standard that the adjective ‘conclusive’ implies, that the duty is duly reflected in the resale prices.

102.

Accordingly, the second ground of appeal cannot succeed, and that circumstance, added to the dismissal of the first ground, means that the appeal should be dismissed in its entirety.

103.

Under Article 138(1) of the Rules of Procedure of the Court of Justice, RFA should be ordered to pay the costs.

104.

Having regard to the foregoing, I propose that the Court of Justice should: