Judgment of the Court (Tenth Chamber) of 3 September 2026. – Çolakoğlu Metalurji AŞ and Çolakoğlu Dış Ticaret AŞ v European Commission.

1

By their appeal, Çolakoğlu Metalurji AŞ (‘CM’) and Çolakoğlu Dış Ticaret AŞ (‘ÇOTAŞ’) ask the Court of Justice to set aside the judgment of the General Court of the European Union of 8 May 2024, Çolakoğlu Metalurji and Çolakoğlu Dış Ticaret v Commission (T‑630/21, the judgment under appeal, EU:T:2024:304), by which the General Court dismissed their action for annulment of Commission Implementing Regulation (EU) 2021/1100 of 5 July 2021 imposing a definitive anti-dumping duty and definitively collecting the provisional duty imposed on imports of certain hot-rolled flat products of iron, non-alloy or other alloy steel originating in Turkey (OJ 2021 L 238, p. 32; ‘the regulation at issue’), in so far as that regulation concerned the products manufactured by those undertakings.

2

By Council Decision 94/800/EC (of 22 December 1994) concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1), the Council of the European Union approved the Agreement establishing the World Trade Organization (WTO), signed in Marrakesh on 15 April 1994, as well as the agreements set out in Annexes 1 to 3 to that agreement, which include the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (OJ 1994 L 336, p. 103) (‘the Anti-Dumping Agreement’).

3

Article 2 of the Anti-Dumping Agreement, entitled ‘Determination of Dumping’, provides:

‘…

2.3   In cases where there is no export price or where it appears to the authorities concerned that the export price is unreliable because of association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported products are first resold to an independent buyer, or if the products are not resold to an independent buyer, or not resold in the condition as imported, on such reasonable basis as the authorities may determine.

2.4   A fair comparison shall be made between the export price and the normal value. This comparison shall be made at the same level of trade, normally at the ex-factory level, and in respect of sales made at as nearly as possible the same time. Due allowance shall be made in each case, on its merits, for differences which affect price comparability, including differences in conditions and terms of sale, taxation, levels of trade, quantities, physical characteristics, and any other differences which are also demonstrated to affect price comparability. … In the cases referred to in paragraph 3, allowances for costs, including duties and taxes, incurred between importation and resale, and for profits accruing, should also be made. If in these cases price comparability has been affected, the authorities shall establish the normal value at a level of trade equivalent to the level of trade of the constructed export price, or shall make due allowance as warranted under this paragraph. The authorities shall indicate to the parties in question what information is necessary to ensure a fair comparison and shall not impose an unreasonable burden of proof on those parties.

2.4.1   When the comparison under paragraph 4 requires a conversion of currencies, such conversion should be made using the rate of exchange on the date of sale …, provided that when a sale of foreign currency on forward markets is directly linked to the export sale involved, the rate of exchange in the forward sale shall be used. Fluctuations in exchange rates shall be ignored and in an investigation the authorities shall allow exporters at least 60 days to have adjusted their export prices to reflect sustained movements in exchange rates during the period of investigation.

…’

4

Article 1 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’) provides:

‘1.   An anti-dumping duty may be imposed on any dumped product whose release for free circulation in the [European] Union causes injury.

2.   A product is to be considered as being dumped if its export price to the Union is less than a comparable price for a like product, in the ordinary course of trade, as established for the exporting country.

…’

5

Article 2 of that regulation, entitled ‘Determination of dumping’, provides:

‘A. NORMAL VALUE

…

B. EXPORT PRICE

8.   The export price shall be the price actually paid or payable for the product when sold for export from the exporting country to the Union.

9.   In cases where there is no export price or where it appears that the export price is unreliable because of an association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported products are first resold to an independent buyer, or, if the products are not resold to an independent buyer or are not resold in the condition in which they were imported, on any reasonable basis.

In those cases, adjustment for all costs, including duties and taxes, incurred between the importation and resale, and for profits accruing, shall be made so as to establish a reliable export price, at the Union frontier level.

The items for which adjustment shall be made shall include those normally borne by an importer but paid by any party, either inside or outside the Union, which appears to be associated or to have a compensatory arrangement with the importer or exporter, including usual transport, insurance, handling, loading and ancillary costs, customs duties, any anti-dumping duties, and other taxes payable in the importing country by reason of the importation or sale of the goods, and a reasonable margin for selling, general and administrative costs and profit.

C. COMPARISON

10.   A fair comparison shall be made between the export price and the normal value. This comparison shall 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 as established are not on such a comparable basis, due allowance, in the form of adjustments, shall be made in each case, on its merits, for differences in factors which are claimed, and demonstrated, to affect prices and price comparability. Any duplication when making adjustments shall be avoided, in particular in relation to discounts, rebates, quantities and level of trade. When the specified conditions are met, the factors for which adjustment can be made are listed as follows:

…

6

The background to the dispute, set out in paragraphs 2 to 10 of the judgment under appeal, can be summarised as follows.

7

CM is a company incorporated under Turkish law which is involved in the production and export of hot-rolled flat products. ÇOTAŞ is a related trading and export company incorporated under Turkish law.

8

On 14 May 2020, the European Commission initiated an anti-dumping investigation with regard to imports into the European Union of certain hot-rolled flat products of iron, non-alloy or other alloy steel originating in Türkiye (‘the product concerned’).

9

The investigation covered the period from 1 January to 31 December 2019 (‘the investigation period’). The examination of trends relevant for the purpose of determining injury covered the period from 1 January 2016 to the end of the investigation period.

10

On 6 January 2021, the Commission adopted Implementing Regulation (EU) 2021/9 imposing a provisional anti-dumping duty on imports of certain hot-rolled flat products of iron, non-alloy or other alloy steel originating in Turkey (OJ 2021 L 3, p. 4; ‘the provisional regulation’), making the appellants’ exports of the product concerned to the European Union subject to a provisional anti-dumping duty of 7.6%.

11

On 5 July 2021, the Commission adopted the regulation at issue, imposing a definitive anti-dumping duty of 7.3% on the imports into the European Union of the product concerned manufactured by the appellants.

12

By application lodged at the Registry of the General Court on 29 September 2021, CM and ÇOTAŞ brought an action for the annulment of the regulation at issue.

13

In support of their action, the appellants put forward four pleas in law. The first plea alleged infringement of Article 2(10)(i) of the basic regulation, in that the adjustment exceeded the commission paid, that no adjustment was due since no profit margin was received and that ÇOTAŞ was an internal sales department and not an agent working on a commission basis. The second plea alleged infringement of Article 2(10)(b) of the basic regulation on account of the requirement that import duties be paid in order for an adjustment to be made under that provision. The third plea alleged a manifest error of assessment by the Commission, relating to its refusal to carry out a monthly or quarterly calculation of the dumping margin, and alleged a consequent infringement of Article 2(10) of the basic regulation. The fourth plea alleged infringement of Article 2(10)(j) of the basic regulation due to the Commission’s refusal to make an adjustment for hedging gains and losses.

14

By the judgment under appeal, the General Court rejected those four pleas and dismissed the action in its entirety.

15

By their appeal, the appellants claim that the Court should:

16

The Commission contends that the Court should:

17

In support of their appeal, the appellants rely on six grounds of appeal. The first ground of appeal alleges misapplication of Article 2(10) of the basic regulation, in that the General Court endorsed the adjustment made by the Commission on account of commission paid by CM to ÇOTAŞ for export services. In support of their second ground of appeal, which consists of three parts, the appellants allege that the General Court misapplied Article 2(10)(i) of the basic regulation and distorted the evidence in the file by finding that the appellants did not constitute a single economic entity. By their third ground of appeal, the appellants submit that the General Court, first, incorrectly transposed to the commissions referred to in Article 2(10)(i) of the basic regulation the presumption laid down in Article 2(9) of that regulation and, second, distorted the evidence in the file and infringed their right to be heard. The fourth ground of appeal alleges a misinterpretation of Article 2(10)(j) of the basic regulation due to a failure to take into account the date fixing the exchange rate in a hedging contract. By their fifth ground of appeal, the appellants claim that the General Court misinterpreted the findings of a WTO Panel Report. Lastly, the sixth ground of appeal alleges that the General Court distorted the evidence when it held that it had not been demonstrated that changes in the cost of production affected price comparability, that fluctuations in the cost of production concerned only one product type and that the unequal distribution of sales concerned only three product types.

18

The appellants submit, in essence, that, in paragraphs 46, 90 and 109 of the judgment under appeal, the General Court misinterpreted Article 2(10) of the basic regulation, in that it accepted that an adjustment to the export price could be made on the ground that ÇOTAȘ had received commission for tasks carried out for the purposes of exporting the product concerned, manufactured by CM, without those tasks having an equivalent in the determination of the normal value or without commission having been paid for domestic sales.

19

According to the appellants, the commission that was paid to ÇOTAȘ by CM was paid as indirect general and administrative costs, namely, essentially, travel, salary, office and depreciation costs. Such costs, if they had been incurred by CM, would not have been deducted from the export price, since they would not have been deducted from the normal value either. The commission paid to ÇOTAȘ is therefore not a factor affecting price comparability and the Commission has failed to demonstrate that that was the case. The mere fact that the existence of a factor listed in Article 2(10) of the basic regulation is invoked, such as, in the present case, the payment of commission, is not sufficient to establish that that factor affects price comparability. It is for the party requesting an adjustment in respect of one of those factors to demonstrate that that factor is such as to affect price comparability.

20

The Commission contends that the first ground of appeal should be rejected as unfounded.

21

In order to determine whether a product has been dumped, Article 2(10) of the basic regulation requires that a fair comparison be made between the export price and the normal value. That comparison is to be made at the same level of trade and in respect of sales made at, as closely as possible, the same time and with due account taken of other differences which affect price comparability. Where the normal value and the export price as established are not on such a comparable basis, due allowance, in the form of adjustments, is to be made in each case, on its merits, for differences in factors which are claimed, and demonstrated, to affect prices and price comparability.

22

Article 2(10) of the basic regulation also lists, by way of illustration, various factors for which adjustment may be made when the specified conditions are met.

23

Those factors include, in point (i) of that provision, differences in commissions paid in respect of the sales under consideration. Those commissions also include the mark-up received by a trader of the product under consideration or the like product if the functions of such a trader are similar to those of an agent working on a commission basis.

24

Thus, the existence of a payment of commission to an agent when exporting products covered by an anti-dumping investigation is capable of justifying an adjustment to the export price taken into account in the comparison between that price and the normal value where such taking into account is necessary in order to make that comparison fair.

25

Moreover, it follows from settled case-law that the burden of proving that the specific adjustments listed in Article 2(10)(a) to (k) of the basic regulation must be made lies with those who wish to rely on them. Thus, 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 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 showing that that condition is fulfilled (judgment of 26 October 2016, PT Musim Mas v Council, C‑468/15 P, EU:C:2016:803, paragraphs 83 and 84 and the case-law cited).

26

In the present case, the General Court held, in essence, in paragraphs 41, 42 and 45 of the judgment under appeal, that, in the light of the considerations set out by the Commission in the regulation at issue, there was an agreement between CM and ÇOTAȘ (‘the agreement between the appellants’), under which ÇOTAȘ’ role was to verify letters of credit, arrange and follow up the documents relating to customs clearance and loading, prepare the necessary export documents after loading, and implement export-related procedures such as the collection of the cost of the goods. The General Court also found that the agreement between the appellants provided for the payment of a commission of 1 United States dollar (USD) (approximately EUR 0.85) per tonne of product sold for export by ÇOTAȘ. In addition, in response to a measure of organisation of procedure, the appellants explained, before the General Court, that ÇOTAȘ retained the profits which it received from the collection of that commission for its intermediary export services.

27

In the light of those factors, the General Court held, in paragraphs 46, 90 and 105 of the judgment under appeal, first, that the tasks carried out by ÇOTAŞ did correspond to those normally carried out by an agent providing a service for the purpose of exporting the product made by the manufacturer and that those functions had no equivalent in the determination of the normal value and, second, that, since the domestic sales of the product concerned did not give rise to payment of that commission, the Commission was entitled to make an adjustment under Article 2(10)(i) of the basic regulation in order to ensure a fair comparison between the normal value and the export price.

28

Contrary to what the appellants claim, the General Court therefore did not merely take into account the very existence of a commission in order to assess whether the Commission had demonstrated the need to make an adjustment to the export prices in order to ensure a fair comparison between those prices and the normal value, in accordance with Article 2(10)(i) of the basic regulation. As follows from paragraphs 26 and 27 of the present judgment, the General Court assessed the nature of that commission in its context.

29

Furthermore, in the light of the findings of fact, recalled in paragraphs 26 and 27 of the present judgment, which fall within the General Court’s unfettered jurisdiction, save where there has been any distortion of those facts by the General Court, the latter did not err in law in finding that the Commission was entitled to make an adjustment under Article 2(10)(i) of the basic regulation in order to take account of the commission paid to ÇOTAȘ. As regards the appellants’ argument, recalled in paragraph 19 of the present judgment, that the commission paid to ÇOTAȘ was supposed to cover certain costs which were not deducted from the normal value, it is sufficient to note that, in the context of its unfettered assessment of the facts, the General Court, on the contrary, considered that the functions performed by ÇOTAȘ and, consequently, the costs incurred by ÇOTAȘ in the performance of its functions, had no equivalent in the determination of the normal value.

30

The first ground of appeal must therefore be rejected as unfounded.

31

The appellants submit that, by finding that ÇOTAȘ was an agent of CM, which justified an adjustment to the export price pursuant to Article 2(10)(i) of the basic regulation, the General Court misapplied that provision and distorted the evidence. According to the appellants, they formed a single economic entity in which ÇOTAȘ performed the functions of an internal department within the Çolakoğlu Metalurji group and was responsible for export sales.

32

By the first part of their second ground of appeal, the appellants claim that, in paragraphs 40 to 49 of the judgment under appeal, the General Court applied an incorrect and new criterion to assess whether ÇOTAȘ was an agent of CM. More specifically, the General Court took into account only the existence of the agreement between the appellants, which provided for the payment of commission, whereas it is, they argue, apparent from the judgments of 26 October 2016, PT Musim Mas v Council (C‑468/15 P, EU:C:2016:803); of 25 June 2015, PT Musim Mas v Council (T‑26/12, EU:T:2015:437); and of 14 July 2021, Interpipe Niko Tube and Interpipe Nizhnedneprovsky Tube Rolling Plant v Commission (T‑716/19, EU:T:2021:457), that the General Court should have taken into consideration the actual content of the clauses in that agreement instead of merely finding that that agreement existed. In addition, in view of the fact that ÇOTAȘ retained the profits from the commission received under that agreement, the General Court introduced a new criterion that was not taken into account in previous case-law and that is irrelevant, since such a retention of profits does not demonstrate the existence of a divergent interest or of a dependency between two companies. Moreover, the taking into account of that fact is contrary to the Organisation for Economic Co-operation and Development (OECD) Transfer Pricing Guidelines.

33

By the second part of that ground of appeal, the appellants submit that, in paragraphs 51 to 62 of the judgment under appeal, the General Court made two errors. First, in finding, in paragraph 59 of the judgment under appeal, that the appellants had not sought to demonstrate that CM’s role was limited to an ‘on-paper’ involvement consisting solely in issuing the invoice, the General Court misinterpreted the judgment of 25 June 2015, PT Musim Mas v Council (T‑26/12, EU:T:2015:437) and distorted the evidence. According to the appellants, the General Court was wrong to focus on whether CM’s role was limited to an ‘on-paper’ involvement, rather than examining the underlying reasons for CM’s participation in the export sales in question. Second, by taking into consideration only the existence of direct export sales by the producer instead of taking account of their importance, the General Court applied the wrong criterion.

34

By the third part of that ground of appeal, the appellants submit that, in paragraphs 66 and 67 of the judgment under appeal, the General Court erred in finding that the fact that the CM had made all the domestic sales of the product concerned without the involvement of a trader demonstrated that that producer had an internal sales department and that, consequently, ÇOTAȘ could not be regarded as such a department. According to the appellants, it does not follow from the judgments of 25 June 2015, PT Musim Mas v Council (T‑26/12, EU:T:2015:437), and of 21 February 2024, Sinopec Chongqing SVW Chemical and Others v Commission (T‑762/20, EU:T:2024:113), that direct domestic sales of the product under consideration are a relevant factor in assessing whether a producer and a related trader form a single economic entity in the context of exports of that product. In his Opinion in the joined Cases Council and Commission v Interpipe Niko Tube and Interpipe NTRP (C‑191/09 P and C‑200/09 P, EU:C:2011:245, point 66), Advocate General Mengozzi referred to the possibility of a producer of a third State operating on its domestic market through a company which it does not control economically, while distributing its products to the European Union through a company with which it forms a single economic entity.

35

The Commission disputes the merits of each of the parts of the second ground of appeal.

36

As follows from paragraph 21 of the present judgment, Article 2(10) of the basic regulation requires a fair comparison to be made between the export price and the normal value, and point (i) of that provision provides that such a comparison may require adjustments to those prices and value on account of differences in the commissions paid in respect of the sales under consideration.

37

However, an adjustment under Article 2(10)(i) of that regulation cannot be made where the producer established in a third State and its related distributor responsible for exports to the European Union form a single economic entity (judgment of 26 October 2016, PT Musim Mas v Council, C‑468/15 P, EU:C:2016:803, paragraph 39).

38

The fair comparison required by Article 2(10) of that regulation must take account of the economic reality of the entities involved. Thus, it has been held that there is nothing in that provision which may prevent the ‘single economic entity’ concept from being applied to the final determination of the export price in order for a fair comparison to be made under that provision. If a producer exports its products to the European Union through a legally separate undertaking, but over which it holds economic control, there is no overriding legal or economic reason preventing those two traders from being regarded as a ‘single economic entity’ (judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraph 54).

39

In other words, the division of production and sales activities within a group made up of legally distinct companies can in no way alter the fact that the group is a single economic entity which organises in that way activities that in other cases are carried on by what is, also from a legal point of view, a single entity. In those circumstances, recognition of the existence of a single economic entity avoids costs, which are clearly included in the sale price of a product when that sale is carried out by an integrated sales department in the producer’s organisation, no longer being included where the same sales activity is carried out by a company which is legally distinct, even though economically controlled by the producer. It follows that a distributor that forms a single economic entity with a producer established in a third State cannot be regarded as carrying out functions comparable to those of an agent working on a commission basis, within the meaning of Article 2(10)(i) of the basic regulation (judgment of 26 October 2016, PT Musim Mas v Council, C‑468/15 P, EU:C:2016:803, paragraphs 40 to 42 and the case-law cited).

40

In order to assess whether there is a single economic entity between a producer and its distributor, ruling out an adjustment under Article 2(10)(i) of the basic regulation, it is necessary to take account of all factors relevant to the determination of the economic reality of the relationship between that producer and that distributor and, in particular, to ascertain whether that producer controls that distributor economically, while having it perform the functions which are normally the responsibility of an internal sales department (see, to that effect, judgments of 5 October 1988,Canon and Others v Council, 277/85 and 300/85, EU:C:1988:467, paragraph 29; of 10 March 1992, Canon v Council, C‑171/87, EU:C:1992:106, paragraphs 9 and 10; and of 26 October 2016, PT Musim Mas v Council, C‑468/15 P, EU:C:2016:803, paragraph 43).

41

The determination of the existence of a single economic entity therefore depends on an overall assessment of factors making it possible to determine the economic reality of the functions carried out by a distributor vis-à-vis a producer. That determination must be made on a case-by-case basis, without the importance of the factors to be taken into account for that overall assessment being predetermined.

42

It is in the light of those considerations that the complaints put forward by the appellants in the various parts of the second ground of appeal must be assessed.

43

In that regard, it should be noted that, in paragraphs 37 to 73 of the judgment under appeal, the General Court held that the Commission had not made a manifest error of assessment, in paragraphs 79 to 86 of the regulation at issue, by first carrying out an overall assessment of all the relevant factors constituted by the agreement between the appellants providing for the payment of commission, CM’s direct export sales, CM’s direct domestic sales, the fact that CM held 99.98% of the shares in ÇOTAȘ, the fact that ÇOTAȘ did not make purchases from unrelated suppliers, and the fact that CM and ÇOTAȘ were based in the same building; the General Court then went on to infer, from those factors, that CM and ÇOTAȘ could not be regarded as forming a single economic entity.

44

By the first part of the second ground of appeal, the appellants submit that the General Court could not rely solely on the existence of an agreement between the appellants providing for the payment of commission by CM to ÇOTAȘ.

45

In that regard, it should be noted that, in paragraphs 41 to 49 of the judgment under appeal, the General Court confirmed the relevance of the indicia taken into account by the Commission in order to determine whether ÇOTAȘ could be regarded as carrying out the activities of an agent working on a commission basis. As regards those indicia, the General Court noted, first, the agreement between the appellants providing for the payment of a commission of USD 1 per tonne of product sold for export by ÇOTAȘ; second, the fact that ÇOTAȘ retained the profits arising from that commission; and, third, the functions entrusted to ÇOTAȘ under the agreement between the appellants, namely verifying letters of credit, arranging and following up the documents relating to customs clearance and loading, preparing the necessary export documents after loading, and implementing export procedures such as the collection of the cost of the goods.

46

In so far as the appellants complain that the General Court took into account only the existence of the agreement concluded between the appellants providing for the payment of commission and failed to have regard to the clauses of that agreement, which it did, however, do in the judgments of 25 June 2015, PT Musim Mas v Council (T‑26/12, EU:T:2015:437), and of 14 July 2021, Interpipe Niko Tube and Interpipe Nizhnedneprovsky Tube Rolling Plant v Commission (T‑716/19, EU:T:2021:457), it must be held that that complaint is based on a misreading of the judgment under appeal.

47

In paragraph 45 of the judgment under appeal, the General Court held that it followed from the agreement between the appellants that ÇOTAȘ’ role was to verify letters of credit, arrange and follow up the documents relating to customs clearance and loading, prepare the necessary export documents after loading, and implement export procedures such as the collection of the cost of the goods. In addition, in that same paragraph, the General Court stated that that agreement also stipulated that CM retained the main sales-related functions, such as gaining customers and establishing the necessary contractual and sales terms with those customers, including the type of product, the price or the loading time.

48

The fact that, in paragraph 49 of the judgment under appeal, the General Court decided that, among the indicia from which it could be concluded that ÇOTAȘ carried out the activities of an agent working on a commission basis, it was necessary to take into consideration the very existence of the agreement between the appellants, in no way supports the inference that it thereby took into account an irrelevant factor and thus wrongly departed from the case-law of the Court of Justice resulting from the judgment of 26 October 2016, PT Musim Mas v Council (C‑468/15 P, EU:C:2016:803). The assessment of the scope of the clauses of an agreement presupposes the existence of that agreement, and therefore the taking into account both of the existence of that agreement and the content of those clauses are relevant factors in order to ascertain, and possibly to find, that there is a single economic entity.

49

Accordingly, the complaint set out in paragraph 46 of the present judgment must be rejected as unfounded.

50

In addition, in so far as the appellants complain that the General Court held that the fact that ÇOTAŞ retained the benefit of the commission it received under the agreement between the appellants gave reason to believe that ÇOTAŞ carried out the activities of an agent working on a commission basis, on the ground that the General Court thus introduced a criterion which has no basis in the previous case-law and which contradicts international rules on transfer pricing, that complaint must be rejected as unfounded.

51

The fact that the retention of profit following receipt of commission has not yet been recognised, either by the Court of Justice or by the General Court, as a relevant factor does not however mean that it is not evidence which the General Court could validly take into account in order to establish the economic independence of a trader from a producer. In the present case, the General Court did not err in law in taking into consideration, as evidence of ÇOTAȘ having such economic independence from CM and, therefore, for the assessment of whether or not there was a single economic entity between those undertakings, the fact that ÇOTAȘ retains the profits from the commission which it receives from CM for its intermediary export services.

52

Contrary to what the appellants claim, the relevance of that evidence cannot be called into question on the ground that CM, as a shareholder holding 99.98% of the shares in ÇOTAȘ, will receive the profits of ÇOTAȘ either when the latter pays dividends or is wound up. Apart from the fact that it has not been demonstrated that ÇOTAȘ distributes dividends or that, in the event of it being wound up, its profits will accrue to CM, the payment of dividends or the transfer of funds upon such winding-up are irrelevant factors for determining whether or not a producer has a related company perform the functions of a sales department internal to that producer’s organisation.

53

Nor can the findings set out in paragraph 51 of the present judgment be called into question by the appellants’ argument based on the OECD transfer pricing guidelines and recommendations. Those recommendations and guidelines relate to the levying of tax on profits generated by related entities. The assessment of the need to make an adjustment under Article 2(10)(i) of the basic regulation depends not on the fiscal rules of the OECD on transfer pricing that are applicable to profits generated by the trader and its producer, but rather on the economic reality of the functions performed by them.

54

Lastly, the appellants claim that the General Court’s assessment in paragraph 46 of the judgment under appeal demonstrates a distortion of the evidence made up of an audit report of 47 pages, drawn up by the company Deloitte and relating to ÇOTAȘ’ activities for 2019 (‘the audit report’), which they had produced at first instance and which they have annexed to their appeal. In the light of that report, the General Court could not, they argue, have found that the tasks performed by ÇOTAȘ did correspond to those normally carried out by an agent providing a service for the purpose of exporting the product made by the manufacturer and that those functions had no equivalent in the determination of the normal value. According to the appellants, it was apparent from the audit report that the sums paid to ÇOTAȘ were paid as general and administrative costs.

55

In that regard, it is clear from Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that the General Court has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its assessment is apparent from the documents submitted to it, and, second, to assess those facts and the corresponding evidence. The appraisal of those facts and the assessment of that evidence thus do not, therefore, save where the facts or evidence are distorted, constitute a point of law which may be subject, as such, to review by the Court of Justice (judgment of 28 November 2024, Hengshi Egypt Fiberglass Fabrics and Jushi Egypt for Fiberglass Industry v Commission, C‑269/23 P and C‑272/23 P, EU:C:2024:984, paragraph 131 and the case-law cited).

56

Furthermore, where an appellant alleges distortion of the evidence by the General Court, that appellant must, under Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court of Justice, indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in that appellant’s view, led to such distortion. In addition, according to settled case-law, that distortion must be obvious from the documents in the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (judgment of 20 June 2024, Euranimi v Commission, C‑252/23 P, EU:C:2024:538, paragraph 71 and the case-law cited).

57

Although the appellants have attached the audit report to their appeal, they have not specified which passages of that report were allegedly distorted by the General Court.

58

In reality, under the guise of an alleged distortion of that report, the appellants seek to obtain from the Court of Justice a new assessment of that evidence, for which the Court of Justice does not have jurisdiction at the appeal stage, as follows from the case-law cited in paragraph 55 of the present judgment. Although it is apparent from page 37 of the audit report that ÇOTAȘ incurred travel, staff, office and depreciation costs, the existence of such costs does not, without a fresh assessment of the facts and evidence being carried out, call into question the General Court’s finding that it was apparent from the agreement between the appellants that ÇOTAȘ received commission and performed functions consisting of verifying letters of credit, arranging and following up the documents relating to customs clearance and loading, preparing the necessary export documents after loading and implementing export procedures.

59

The appellants’ complaint alleging distortion of the audit report must, therefore, be rejected as inadmissible. In the light of all the foregoing assessments, the first part of the second ground of appeal must be rejected in its entirety.

60

By the second part of the second ground of appeal, the appellants submit that the General Court erred in law, first, in that it took into account only the very fact that CM carried out direct export sales and not their importance and, second, in finding that the appellants had not sought to demonstrate that CM’s role in those direct sales was limited to an ‘on-paper’ involvement. They argue that, in so doing, the General Court disregarded the case-law resulting from the judgment of 25 June 2015, PT Musim Mas v Council (T‑26/12, EU:T:2015:437), and distorted the evidence.

61

In that regard, the General Court was right to hold, in paragraph 51 of the judgment under appeal, that the existence of direct sales by the producer is a relevant factor in order to determine whether a related trader must be treated as an agent working on a commission basis. The existence of such sales relating to the product under consideration or to other products is evidence that the trader related to that producer does not carry out functions of a sales department internal to that producer’s organisation. Furthermore, the larger the proportion of such direct sales, the more difficult it is to maintain that that trader carries out such functions (see, to that effect, judgment of 26 October 2016, PT Musim Mas v Council, C‑468/15 P, EU:C:2016:803, paragraph 49).

62

In the present case, the General Court held, in paragraph 62 of the judgment under appeal, that CM’s export sales were one indication, among others, of the fact that it itself had a fully operational internal sales department and that, therefore, ÇOTAŞ had to be regarded as fulfilling not that function, but the function of an agent working on a commission basis. In support of that finding, the General Court took into account the fact that, although CM did not make direct sales of the product concerned to the European Union, the Commission had established that, in terms of value, 5.49% of CM’s sales of the product concerned to the rest of the world were direct sales, 11% of other products sold to the rest of the world were direct sales, and 5.48% of other products sold in the European Union were direct sales. Accordingly, the appellants’ argument that the General Court took into account only the existence of those sales and not their importance is based on a misreading of the judgment under appeal and is, therefore, unfounded.

63

In addition, the appellants’ argument that, in the cases giving rise to the judgments of 10 March 2009, Interpipe Niko Tube and Interpipe NTRP v Council (T‑249/06, EU:T:2009:62); of 25 June 2015, PT Musim Mas v Council (T‑26/12, EU:T:2015:437); and of 21 February 2024, Sinopec Chongqing SVW Chemical and Others v Commission (T‑762/20, EU:T:2024:113), the General Court did not, on the basis of larger percentages of direct sales by the producer, in any way rule out that a trader could carry out the functions of an internal sales department, does not establish that, in the present case, the General Court erred in law by inferring, inter alia, from the existence of direct export sales by CM that ÇOTAȘ could not be regarded as having that role. Apart from the fact that the Court of Justice is not bound by the General Court’s legal classifications of the facts in those cases, it must be borne in mind, as follows from paragraph 41 of the present judgment, that the verification of the existence of a single economic entity involves an overall assessment of all the relevant factors. Those factors include direct sales by the producer. The fact that, in the present case, CM makes direct export sales, albeit as a small percentage of its overall turnover, is therefore one of a number of indicia which the General Court was entitled to take into account in order to find that CM itself had a fully operational internal sales department.

64

In so far as the appellants claim that the General Court distorted the evidence submitted to it by finding, in paragraph 59 of the judgment under appeal, that the appellants had not sought to demonstrate that the producer’s role was limited to such an ‘on-paper’ involvement consisting solely in issuing an invoice, it must be stated that the appellants have not set out which evidence was thus distorted, and therefore that complaint must be rejected as inadmissible, in accordance with the case-law cited in paragraph 56 of the present judgment.

65

The appellants also complain that the General Court examined only whether CM’s role was limited to an ‘on-paper’ involvement in direct export sales. By doing so, the General Court disregarded its case-law resulting from the judgment of 25 June 2015, PT Musim Mas v Council (T‑26/12, EU:T:2015:437), in which it decided that various reasons may justify the ‘on-paper’ involvement of a producer, with the result that, in the present case, the General Court should, in the same way, have had regard to the various underlying reasons capable of explaining CM’s participation in export sales.

66

In that regard, it should be noted that, in paragraphs 56 to 61 of the judgment under appeal, the General Court rejected the appellants’ argument that most direct export sales made by CM are not genuine export sales because, due to legal requirements in Türkiye, those sales are made, inter alia, either to customers located in a foreign trade zone in Türkiye or to customers situated in Türkiye but who subsequently export the products to third countries.

67

In paragraph 58 of the judgment under appeal, the General Court recalled, referring to its own case-law resulting from the judgment of 25 June 2015, PT Musim Mas v Council (T‑26/12, EU:T:2015:437, paragraph 68), that it had already accepted that a related company may carry out the functions of an internal sales department without, however, itself issuing the invoices relating to its sales, those invoices being issued by the producer itself, whose involvement is thus limited to an ‘on-paper’ involvement.

68

However, the General Court held, in paragraph 59 of the judgment under appeal, that, in the present case, the appellants had not sought to demonstrate that CM’s role was limited to such an ‘on-paper’ involvement. The General Court added, in paragraph 60 of that judgment, that the agreement between the appellants provided, on the contrary, that CM was responsible for finding customers and for concluding contracts with them, and therefore that CM performed, according to the actual wording of that agreement, most, if not all, of the functions normally performed by a sales department.

69

In the light of those findings, the General Court did not err in law in rejecting the appellants’ argument referred to in paragraph 66 of the present judgment. The General Court assessed the economic reality of the direct export sales by CM and considered, in essence, that the Commission was entitled to take those sales into consideration, as one of a number of indicia that CM itself had, for that purpose, a fully operational internal sales department, with the result that that role was not conferred on ÇOTAȘ, contrary to what the appellants claimed.

70

Accordingly, for the foregoing reasons, the second part of the second ground of appeal must be rejected.

71

In support of the third part of their second ground of appeal, the appellants complain that the General Court considered that the existence of direct sales by the producer on its domestic market is a relevant criterion for determining whether a producer and a trader constitute a single economic entity responsible for export sales.

72

In paragraph 67 of the judgment under appeal, the General Court held that the fact that CM made all of its domestic sales without the involvement of any trader demonstrated, as the Commission argued, that CM had an internal sales department and that, consequently, ÇOTAŞ could not be regarded as such a department. The General Court inferred from this that it was a relevant factor which the Commission could, or even had to, take into account for the purposes of the application of Article 2(10)(i) of the basic regulation.

73

In that regard, it should be noted that the fact that a producer has an internal sales department for its domestic sales gives reason to believe that it does not have to use, for that purpose, the services of a related trader with which it should be regarded as constituting a single economic entity. Furthermore, although the existence of such an internal sales department within the producer’s undertaking may facilitate the producer’s establishment of export sales, through that department, it cannot, however, be inferred from that fact alone that such a producer actually makes export sales through its internal sales department.

74

However, the fact that a producer has such an internal sales department for domestic sales and that it itself makes direct export sales, taken together, may constitute evidence that that producer and a related trader do not constitute a single economic entity acting in respect of direct export sales.

75

Therefore, in the light of the foregoing, the General Court was entitled to find that the fact that CM has an internal sales department for domestic sales was relevant evidence for assessing whether that producer and ÇOTAŞ formed a single economic entity as regards export sales.

76

The third part of the second ground of appeal must, therefore, be rejected, with the result that the second ground of appeal must be rejected in its entirety as unfounded.

77

The appellants submit that, in paragraphs 94 to 97 of the judgment under appeal, the General Court was wrong to find that the Commission was entitled to apply, by analogy, to the commissions referred to in Article 2(10)(i) of the basic regulation, the presumption established in Article 2(9) of that regulation, according to which the existence of an association or a compensatory arrangement between the exporter and the importer or a third party renders the export prices unreliable, with the result that the institutions may construct an export price. Thus, according to the appellants, where the Commission wishes to make an adjustment on the basis of Article 2(10)(i) of the basic regulation, it cannot presume that the commission paid by the exporting producer to the related trader was not set competitively in view of the link between those two entities, but must demonstrate that fact in order to be allowed to construct the amount of that commission by taking into account a reasonable profit margin.

78

The appellants observe, in that regard, that Article 2(9) of the basic regulation deals exclusively with the situation in which two parties are related, whereas Article 2(10)(i) of that regulation refers to commissions that can be paid to both related and unrelated agents and, therefore, does not contain a presumption that transactions between related companies are in principle unreliable. Furthermore, unlike adjustments that are intended to determine the export price corresponding to normal trading conditions, the adjustments made under Article 2(10) of that regulation are for an adjustment of the export price or the normal value that were already calculated pursuant to the rules laid down in Article 2(1) to (9) of that regulation. Lastly, the Court of Justice has already held that Article 2(10)(i) of the basic regulation contains no reference whatsoever to such a presumption, since that provision, which concerns the comparison between the normal value and the export price, focuses not on the relationship between the exporter and the distributor, but on the functions carried out by the latter (judgment of 26 October 2016, PT Musim Mas v Council, C‑468/15 P, EU:C:2016:803, paragraphs 87 and 88). As a result, the appellants submit that, if the Commission considers that the amount of commission between a producer and a related trading company does not reflect a proper remuneration, it cannot presume it, but must prove it.

79

The General Court was, the appellants argue, therefore wrong to hold, in paragraphs 98 to 102 of the judgment under appeal, that the appellants had been sufficiently informed of the nature and amount of the additional adjustment and, in paragraphs 103 to 106 of the judgment under appeal, that the Commission had duly stated the reason why it considered that the amount of commission set out in the agreement between the appellants did not constitute proper remuneration. In particular, the appellants submit that their right to be heard was infringed, in that they did not have the opportunity to rebut the presumption that the amount of commission did not reflect proper remuneration, whereas the Commission relied solely on that presumption and did not establish how the existence of the intra-group relationships necessarily had an influence on the determination of that amount.

80

The appellants also submit that, even if the presumption in Article 2(9) of the basic regulation were transposable to Article 2(10)(i) of that regulation, it follows from paragraph 7.148 of the WTO Panel Report of 14 November 2017 in the case United States – Anti-Dumping Measures on Certain Oil Country Tubular Goods from Korea (WT/DS488/R) that the investigating authority cannot construct the export price whenever it finds that there is association, but is required to take into account the evidence that is available to it and that suggests that the export price is reliable notwithstanding the existence of association. In the present case, the Commission had evidence that the actual amount of the commission represented proper remuneration.

81

The Commission disputes the merits of the appellants’ arguments.

82

In the first place, in so far as the appellants submit that the General Court erred in law in finding that the Commission was entitled to apply, by analogy, to the commissions referred to in Article 2(10)(i) of the basic regulation the presumption established in Article 2(9) of that regulation, it must be borne in mind that the latter provision provides for the possibility of constructing the export price where it appears that that price is unreliable because of an association or a compensatory arrangement between the exporter and the importer or a third party.

83

Thus, the existence of an association between the exporter and the importer allows the Commission to presume that the export price is unreliable and to construct that price in order to satisfy the requirement in Article 2(8) of that regulation that the export price must be the price actually paid or payable for the product when sold for export to the European Union.

84

Furthermore, the Court has already held that there is no presumption, in the context of the application of Article 2(10)(i) of the basic regulation, that two related companies are not operated independently, and that they are tied together by compensatory arrangements, such that the EU institutions would be required, in order to make an adjustment under that provision, to demonstrate that the two entities are managed independently. To that end, those institutions cannot rely on the presumption established in Article 2(9) of that regulation. Even though that latter provision concerns the calculation of the export price and states that the existence of a relationship between the exporter and the distributor may distort that price, Article 2(10)(i) of that regulation, which concerns the comparison between the normal value and the export price, focuses not on the relationship between the exporter and the distributor, but on the functions carried out by the latter (see, to that effect, judgment of 26 October 2016, PT Musim Mas v Council, C‑468/15 P, EU:C:2016:803, paragraphs 86 to 88).

85

However, contrary to what the appellants claim, it cannot be inferred from that case-law of the Court that, where it has been established that it was necessary to make an adjustment under Article 2(10)(i) of the basic regulation where the trader related to the producer acted as an agent working on a commission basis, it cannot be considered that the link between that agent and the producer suggests that the amount of commission received by that agent is unreliable and, therefore, that the amount of commission to be deducted from the export price may be constructed.

86

In that regard, the General Court was fully entitled to hold, in essence, in paragraph 94 of the judgment under appeal, that the question of whether or not the related trader should be regarded as an internal sales department and, therefore, whether or not Article 2(10)(i) of the basic regulation applies, is separate from the question relating to the quantification of the adjustment itself once it is established that that provision applies. In the judgment of 26 October 2016, PT Musim Mas v Council (C‑468/15 P, EU:C:2016:803), the Court of Justice confined itself to ruling on the first question. Therefore, the General Court was also right to find that the Court of Justice had not called into question the fact that the Commission could take into account the relationship between the manufacturer and the related trader when determining the appropriate amount of the adjustment to be made, as in the case of the adjustment that it makes under Article 2(9) of the basic regulation.

87

Therefore, as the General Court was fully entitled to hold, in paragraph 95 of the judgment under appeal, the principle set out in Article 2(9) of that regulation, namely that, where it appears that the export price is unreliable because of an association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported products are first resold to an independent buyer, also applies when quantifying the amount of commission to be deducted from the export price in order not to deprive Article 2(10)(i) of the basic regulation of its practical effect.

88

That finding cannot be called into question by the appellants’ argument that commission may be paid to agents, whether related or unrelated to the producer. The presumption that the amount of commission received by the agent concerned is unreliable, with the result that the amount of commission to be deducted from the export price, pursuant to Article 10(2)(i) of the basic regulation, may be constructed, applies only in so far as the Commission establishes that that agent is related to the producer, by analogy with Article 2(9) of that regulation, namely on account of the existence of an association or a compensatory arrangement between those two entities.

89

Nor can the application of that presumption be called into question by the fact that the WTO Panel found, in its report referred to in paragraph 80 of the present judgment, that, in view of the wording of Article 2.3 of the Anti-Dumping Agreement, that provision ‘does not allow an investigating authority to construct export price whenever there is association’ and that ‘[the] investigating authority [cannot] simply ignore evidence before it suggesting that the export price is reliable notwithstanding association and go on to construct the export price without considering such evidence’ because ‘[the] investigating authority has an obligation to establish facts properly and evaluate them in an unbiased and objective manner, which entails the consideration of relevant evidence on the issues before it’.

90

It is true that Article 2.3 of the Anti-Dumping Agreement corresponds to Article 2(9) of the basic regulation and the primacy of international agreements concluded by the European Union over secondary EU legislation requires that the latter be interpreted, as far as possible, in a manner consistent with those agreements (judgment of 12 May 2022, Commission v Hansol Paper, C‑260/20 P, EU:C:2022:370, paragraph 82 and the case-law cited).

91

However, the presumption established in Article 2(9) of the basic regulation is rebuttable. Therefore, if, during the anti-dumping proceeding, the producer concerned submits to the Commission evidence demonstrating that, notwithstanding the existence of an association, the export price is the price actually paid or payable for the product when sold for export, there is no need for the Commission to construct that price. Accordingly, the existence of such a presumption does not contravene Article 2.3 of the Anti-Dumping Agreement, as interpreted by the WTO Panel in its report referred to in paragraph 80 of the present judgment.

92

In the second place, the appellants claim that their right to be heard was infringed, since the regulation at issue refers, for the first time, to an application by analogy of Article 2(9) of the basic regulation for the calculation of the export price following the application of Article 2(10)(i) of that regulation.

93

In that regard, it should be recalled that, under the principle of respect for the rights of defence of the parties to an anti-dumping proceeding, those parties should have been placed in a position, during the administrative procedure, in which they could effectively make known their views on the correctness and relevance of the facts and circumstances alleged and on the evidence presented by the Commission in support of its allegation concerning the existence of dumping and the resultant injury (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 211 and the case-law cited).

94

In the present case, it is common ground, as follows from paragraph 102 of the judgment under appeal, that recital 84 of the regulation at issue refers for the first time to the fact that the Commission made the adjustment by applying, by analogy, Article 2(9) of the basic regulation and that that adjustment was calibrated both to cater for the functions which the related trader committed to undertake for remuneration, in accordance with the agreement between the appellants, and to reflect the proper remuneration for the service rendered on an arm’s length basis.

95

However, as follows from paragraph 101 of the judgment under appeal, the Commission considered, in recital 55 of the provisional regulation, that ‘to establish an export price ex-works of that exporting producer, the export price was adjusted pursuant to Article 2(10)(i) of the basic [r]egulation. Thus, the Commission deducted from the export price the [selling, general and administrative] costs of the related trader that was found not to form a single economic entity with the exporting producer, and a profit equal to the profit of an unrelated importer in the Union established on the basis of the information on the file of this investigation as well as the findings of a previous investigation on imports of products similar to the product under investigation’.

96

Thus, the General Court was right to hold, in paragraph 102 of the judgment under appeal, that the provisional regulation already informed the appellants that the adjustment to the export price was justified by the existence of related parties. The provisional regulation also informed the appellants of how the Commission would adjust the export price by stating that the Commission would not take into account the profit of the related trader, but would construct it on the basis of other data.

97

In the light of those factors, the appellants cannot validly maintain that they did not have the opportunity to produce evidence to show that the amount of the commission reflected proper remuneration. Nor did the clarification in the regulation at issue that the adjustment that was made resulted from an application by analogy of Article 2(9) of the basic regulation deprive the appellants of that possibility. As stated in paragraph 102 of the judgment under appeal, without that being challenged by the appellants at the stage of the present appeal, the Commission’s reasoning in the regulation at issue did not change the nature or amount of the adjustment applied.

98

Accordingly, the complaint alleging infringement of the appellants’ right to be heard must be rejected.

99

In the first place, the appellants claim that, in paragraphs 112, 115, 123 and 125 of the judgment under appeal, the General Court distorted the evidence submitted for its assessment by finding that ÇOTAȘ provided customs clearance and loading services. In reality, they argue, ÇOTAȘ does not provide such services, but monitors those operations and does not incur any costs directly related to them. The fact of following up the documents submitted for customs clearance and loading without incurring the direct costs relating thereto does not, in the appellants’ view, amount to providing customs clearance and loading services. The audit report clearly states that the costs borne by ÇOTAȘ relate to travel, salaries, offices and depreciation, which are not costs associated with the provision of customs clearance and loading services.

100

The General Court and the Commission wrongly treated ancillary or support activities as primary sales functions, which undermines the nuanced analysis required to determine the exact scope of the activities carried out by ÇOTAȘ and the corresponding level of reasonable profit. Unrelated importers carry out many more functions than ÇOTAȘ. As is apparent from previous anti-dumping regulations, the functions typically performed by an importer, in addition to those performed by ÇOTAȘ, consist in taking orders from unrelated customers, negotiating sales contracts with independent buyers, dealing with import procedures, transporting the products to independent buyers and storing the products in the European Union. ÇOTAȘ does not perform any of those functions.

101

In the second place, the appellants submit that, by concluding, in paragraphs 103 to 110 of the judgment under appeal, that the Commission had duly stated the reasons why it considered that the amount of the commission did not correspond to proper remuneration and, in paragraphs 116 to 131 of the judgment under appeal, that that institution had not made a manifest error of assessment when calculating the adjustment, the General Court distorted the evidence in the file. In particular, it is apparent from the audit report that its profit margin on its services was approximately 8% and that the operating profit had to be calculated by reference not to the value of resales, but to the income from commission and to the expenses incurred in respect of the services provided. In that regard, the appellants submit that it follows from paragraph 7.129 of the WTO Panel Report of 16 December 2016 in the case European Union – Anti-Dumping Measures on Imports of Certain Fatty Alcohols from Indonesia (WT/DS442/R) that, ‘when a transfer of funds occurs between two related entities, an investigating authority would be justified in examining whether the actual value of the expense differs from its reported value. Such an examination would … assist in identifying the proper amount of the adjustment to be made.’

102

The Commission disputes the merits of those arguments.

103

As pointed out in paragraphs 55 and 56 of the present judgment, the General Court has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its assessment is apparent from the documents submitted to it, and, second, to assess those facts and the corresponding evidence. The appraisal of those facts and the assessment of that evidence therefore do not, save where the facts or evidence are distorted, constitute a point of law which may be subject, as such, to review by the Court of Justice. Furthermore, where an appellant alleges distortion of the evidence by the General Court, that appellant must indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in that appellant’s view, led to such distortion. In addition, that distortion must be obvious from the documents in the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence.

104

First, the appellants claim that, by deciding, in paragraph 124 of the judgment under appeal, on the basis of the considerations set out in paragraphs 112, 115 and 123 of that judgment, that ÇOTAŞ provided services such as customs clearance and loading, the General Court distorted the audit report, since it followed from that report that the costs incurred by ÇOTAŞ were travel, salary, office and depreciation costs which were not directly linked to customs clearance and loading services.

105

In that regard, it must be noted that the appellants have failed to specify which part of the audit report was distorted by the General Court and from which it is clear that ÇOTAŞ does not provide customs clearance and loading services or incur costs directly related to those operations. Accordingly, the complaint alleging distortion of that report must be rejected as inadmissible.

106

Second, in so far as the appellants claim that the General Court distorted the audit report in that it held, in paragraph 125 of the judgment under appeal, that the profit made by ÇOTAŞ, resulting from the commission it received, was 8.2% as a percentage of revenue, and 8.9% as a percentage of costs, on its activities relating to CM’s export sales, it should be noted that the appellants have not demonstrated that the General Court distorted that report, and, in reality, they are seeking to obtain from the Court of Justice a new assessment of the facts for which it does not have jurisdiction. The appellants have not indicated with sufficient precision which passages of that report were manifestly disregarded by the General Court.

107

It follows that the second part of the third ground of appeal must be rejected and, therefore, that that ground of appeal must be rejected in its entirety as unfounded.

108

The appellants submit that, in paragraphs 199, 200 and 204 to 207 of the judgment under appeal, the General Court infringed Article 2(10)(j) of the basic regulation by focusing on the currencies covered by the hedging contract rather than on the date setting the exchange rate in that contract.

109

According to the appellants, that provision emphasises the date of the exchange rate irrespective of the currencies for which the exchange rate is fixed by the hedging contract. That, they argue, is apparent from the reference to the ‘date of sale’ set out in each of the sentences of that provision. Moreover, such a reference to that date rather than to the currencies covered by the hedging contract is logical from a financial point of view, in view of the fact that the exchange rates between the different currencies are interconnected.

110

Thus, the appellants take the view that, if one were to follow the position that the hedging operations can be taken into consideration only when the operation concerns the currency of the invoice and the conversion currency used by the Commission, it would be too easy for the latter to circumvent the obligation set out in the first sentence of Article 2(10)(j) of the basic regulation. The Commission could convert transactions in euro or in other currencies to avoid having to take into account hedging operations between euro and Turkish lira. However, the interpretation of that provision should not allow the Commission to deprive it of its effectiveness.

111

The Commission submits that the fourth ground of appeal is ineffective, in that the appellants have not challenged paragraph 196 of the judgment under appeal. In its view, that ground of appeal is, in any event, unfounded.

112

In the first place, the Commission is wrong to allege that the fourth ground of appeal is ineffective on the ground that the appellants have not challenged paragraph 196 of the judgment under appeal. That paragraph merely sets out the content of recital 98 of the regulation at issue, without the General Court carrying out an assessment of its merits, with the result that a failure to challenge that paragraph is not sufficient to render that ground of appeal ineffective.

113

In the second place, as regards the merits of that ground of appeal, it must be noted that, in paragraphs 199, 200 and 204 to 207 of the judgment under appeal, the General Court endorsed the approach followed by the Commission in the regulation at issue; according to that approach, the hedging contracts concluded by the appellants were irrelevant for the currency conversions carried out by that institution in order to ensure a fair comparison between the export price and the normal value under Article 2(10) of the basic regulation.

114

More specifically, the General Court found, first, that, given that the appellants’ export sales had been made in euro, they had to be converted into Turkish lira in order to ensure a fair comparison between those sales and domestic sales and, second, that the Commission had directly converted the value of export sales into Turkish lira, without an intermediate conversion into United States dollars. In addition, the General Court held that, since the hedging contracts at issue provided for a hedge in United States dollars by agreeing a rate of conversion between euro and United States dollars, that conversion had nothing to do with the conversion carried out by the Commission, namely from euro into Turkish lira. The General Court therefore rejected the appellants’ argument that the Commission was required to use the conversion rate provided for in the hedging contracts.

115

The appellants submit that that assessment is based on a misinterpretation of Article 2(10)(j) of the basic regulation, in that it focuses on the currencies covered by the hedging contract rather than on the date fixing the exchange rate in that contract, which is, however, referred to in that provision; they argue that it also infringes the effectiveness of that provision.

116

In that regard, it is necessary, first of all, to recall that, under Article 2(10) of the basic regulation, a fair comparison is to be made between the export price and the normal value. That comparison is to be made at the same level of trade and in respect of sales made at, as closely as possible, the same time and with due account taken of other differences which affect price comparability. Where the normal value and the export price as established are not on such a comparable basis, due allowance, in the form of adjustments, is to be made in each case, on its merits, for differences in factors which are claimed, and demonstrated, to affect prices and price comparability.

117

The factors for which adjustments may be made include, in point (j) of Article 2(10), currency conversions. That provision states that, when the price comparison requires a conversion of currencies, such conversion is to be made using the rate of exchange on the date of sale, except that, when a sale of foreign currency on forward markets is directly linked to the export sale involved, the rate of exchange in the forward sale is to be used. That provision also states that, normally, the date of sale is the date of invoice but the date of contract, purchase order or order confirmation may be used if those more appropriately establish the material terms of sale. Fluctuations in exchange rates are to be ignored and exporters are to be granted 60 days to reflect a sustained movement in exchange rates during the investigation period.

118

Thus, where a conversion of currencies is necessary in order to make a fair comparison between the export price and the normal value, Article 2(10)(j) of the basic regulation specifies how the exchange rate applicable to that conversion is to be determined. That exchange rate must correspond to the rate in force on the date of sale, unless that rate was agreed upon for a forward sale directly linked to the export sale which must be taken into account in the comparison with the normal value. It follows from the wording of that provision that, if the sale of foreign currency on the forward market is directly linked to the export sale involved, the rate of exchange in the forward sale is used. That provision also specifies how the date of sale is determined when it has to be taken into account and states that fluctuations in exchange rates are to be ignored.

119

Next, it must be noted that Article 2(10)(j) of the basic regulation gives no indication as to the currency into which the conversion must be made where that conversion is required in order to make a fair comparison between the export price and the normal value. It follows that, where a conversion of currencies is necessary in order to be able to make such a comparison, the Commission has a margin of discretion in determining which currency those prices will have to be converted into. The judicial review of that margin of discretion must be limited to verifying whether the procedural rules have been complied with, whether the facts relied on to make the contested choice of currency have been accurately stated, and whether there has been a manifest error of appraisal of those facts or a misuse of powers (see, to that effect, judgment of 28 November 2024, Hengshi Egypt Fiberglass Fabrics and Jushi Egypt for Fiberglass Industry v Commission, C‑269/23 P and C‑272/23 P, EU:C:2024:984, paragraph 125 and the case-law cited).

120

Lastly, it must be noted that, as the General Court was right to note in paragraph 198 of the judgment under appeal, a hedging contract makes it possible to lock in, at the time the contract is concluded, the exchange rate to be applied to a monetary transaction that will take place on a future date, and thus makes it possible to reduce the financial risk to which a contracting party is exposed as a result of unfavourable fluctuations in exchange rates.

121

A hedging contract thus fixes an exchange rate for the forward sale within the meaning of Article 2(10)(j) of the basic regulation.

122

However, since, as follows from paragraphs 118 and 119 of the present judgment, that provision specifies how the exchange rate applicable to a conversion of currencies should be determined in order to compare the export price and the normal value, but gives no indication as to the choice of the currency into which that conversion must be made, the Commission cannot be required, pursuant to that provision, to take into consideration the currencies used in that hedging contract in order to carry out that comparison or, therefore, to apply the exchange rate fixed by that contract solely on the ground that it is directly linked to the export sale involved.

123

In order for the Commission to be required to take into consideration the exchange rate fixed by a hedging contract, it is necessary not only that that contract is directly linked to the export sale involved, but also that the currency covered by that contract is also the currency into which that institution considers it necessary to convert the prices so as to allow a fair comparison between the export price and the normal value. The fact that a hedging contract is directly linked to the export sale involved does not, however, give any indication as to whether the currency for which the exchange rate is fixed by that contract is the currency into which the export prices and the normal value must be converted in order to ensure a fair comparison between them, in accordance with the first sentence of Article 2(10) of the basic regulation.

124

Therefore, contrary to what the appellants claim, it does not follow from the fact that Article 2(10)(j) of the basic regulation emphasises the date of the exchange rate irrespective of the currencies for which the exchange rate is fixed by the contract that, where an exporting producer has concluded a hedging contract, the Commission is necessarily obliged to carry out a conversion based on the currencies covered by that contract in order to ensure a fair comparison between the export price and the normal value.

125

In addition, the appellants are wrong to claim that the fact that a hedging contract is to be taken into account by the Commission only under the conditions referred to in paragraph 123 of the present judgment would amount to allowing that institution to circumvent the obligation laid down in the first sentence of Article 2(10)(j) of the basic regulation. As stated in paragraphs 118 to 119 of the present judgment, that obligation relates solely to the way in which the conversion rate to be applied for the purposes of a fair comparison is determined, and not to the choice of the currencies to be converted.

126

Furthermore, contrary to what the appellants also claim, that interpretation of Article 2(10)(j) of the basic regulation does not have the effect of allowing the Commission to deprive that obligation of any practical effect. Where that institution considers it appropriate to convert the prices of export sales into a currency other than that covered by a hedging contract directly linked to those sales, that institution remains, in principle, bound, pursuant to the first sentence of Article 2(10)(j) of that regulation, to use the exchange rate in force on the date of sale.

127

Moreover, and more fundamentally, when choosing the currency into which it considers it appropriate to convert the prices in question, the Commission is required, by virtue of the obligation of principle arising from the first sentence of Article 2(10) of that regulation, to ensure that that choice allows a fair comparison between the export price and the normal value. That choice, which falls within the discretion enjoyed by that institution by reason of the complexity of the economic and political situations which it has to examine, remains, however, subject to review by the EU Courts, as follows from paragraph 119 of the present judgment.

128

In the light of the foregoing considerations, it must be held that the General Court did not misinterpret Article 2(10)(j) of the basic regulation when it held, after finding that the hedging contracts concluded by the appellants fixed an exchange rate between euro and United States dollars, that that rate was irrelevant for the Commission’s conversion of the export sales prices, namely from euro into Turkish lira.

129

The fourth ground of appeal must therefore be rejected as unfounded.

130

By their fifth ground of appeal, the appellants complain that the General Court only partially cited, in paragraph 168 of the judgment under appeal, paragraph 6.123 of the WTO Panel Report in the case United States – Anti-dumping measures on Stainless Steel Plate in Coils and Stainless Steel Sheet and Strip from Korea (WT/DS 179/R; ‘the Panel Report in the United States – stainless steel case’), and, therefore, that it erred in its interpretation of that report and distorted the evidence in the file. The omitted quotation relates, the appellants argue, exactly to their situation that is the subject of the regulation at issue.

131

The Commission contends that that ground of appeal is inadmissible on the basis that it seeks to call into question the findings of fact made by the General Court in paragraphs 175, 176 and 185 of the judgment under appeal. In addition, in the Commission’s view, the appellants have not sufficiently explained how the alleged misinterpretation of that paragraph of the Panel Report in the United States – stainless steel case affects the General Court’s decision. Lastly, and in any event, the Commission considers that that ground of appeal is unfounded.

132

Paragraph 168 of the judgment under appeal, referred to in the fifth ground of appeal, is one of the grounds in support of the General Court’s decision to reject the appellants’ third plea in law, by which, as follows from paragraph 163 of that judgment, they complained that the Commission had, in essence, infringed Article 2(10) of the basic regulation by refusing a monthly or quarterly calculation of the dumping margin.

133

Since the respective content of Article 2.4 of the Anti-Dumping Agreement and Article 2(10) of the basic regulation are similar, and, in view of the case-law of the Court of Justice referred to in paragraph 90 of the present judgment, according to which the provisions of the basic regulation which correspond to the Anti-Dumping Agreement must, as far as possible, be interpreted in a manner that is consistent with that agreement, the General Court was entitled to take into account, in its assessment of the appellants’ arguments relating to the scope of that provision of the basic regulation, the Panel Report in the United States – stainless steel case, in so far as it concerned the interpretation of Article 2.4 of the Anti-Dumping Agreement.

134

It follows that, in arguing that the General Court relied, in paragraph 168 of the judgment under appeal, on an incomplete citation of paragraph 6.123 of the Panel Report in the United States – stainless steel case, the appellants complain that the General Court, in essence, misinterpreted Article 2.4 of the Anti-Dumping Agreement and, consequently, also misinterpreted Article 2(10) of the basic regulation and thus erred in law.

135

Accordingly, the Commission is wrong to claim that the present ground of appeal must be rejected as inadmissible on the ground that it seeks to obtain a fresh assessment of the facts by the Court of Justice and that it does not sufficiently set out the appellants’ complaints.

136

As regards the appellants’ complaint that the General Court distorted the evidence contained in the file at first instance, in so far as it concerns the General Court’s assessment of the Panel Report in the United States – stainless steel case, it should be noted that that report was produced before the General Court not as evidence of a contested fact, but to support the interpretation of Article 2 of the Anti-Dumping Agreement and, consequently, the interpretation of Article 2(10) of the basic regulation, asserted by the appellants. Therefore, in the context of the examination of the appellants’ complaint summarised in paragraph 134 of the present judgment, it will be examined whether the General Court correctly assessed that report; that examination will not be limited to whether the General Court distorted it.

137

However, in so far as the appellants’ complaint alleging distortion relates to other material in the file at first instance, it must be rejected as inadmissible, in accordance with the case-law of the Court of Justice cited in paragraph 56 of the present judgment, since the appellants have not specified the material which the General Court distorted or what errors of analysis it made.

138

That being so, as regards the merits of the present ground of appeal, it should be noted that, after finding, in paragraph 167 of the judgment under appeal, that Article 2.4 of the Anti-Dumping Agreement contains a provision that is partially similar to that of Article 2(10) of the basic regulation, the General Court reproduced, in paragraph 168 of that judgment, the following passage from the Panel Report in the United States – stainless steel case, concerning the interpretation of Article 2.4 of that agreement:

‘The United States argues, in effect, that the “same time” requirement of Article 2.4 implies a preference for shorter rather than longer averaging periods. … In our view, however, the US argument proves too much … We do not preclude that there may be factual circumstances where the use of multiple averaging periods could be appropriate in order to [e]nsure that comparability is not affected by differences in the timing of sales within the averaging periods in the home and export markets. …’

139

In addition, it must be noted that the passage from that report which the appellants criticise the General Court for having ignored is the following:

‘We note that, where changes in normal value, export price or constructed export price during the course of the [period of investigation (POI)] are combined with differences in the relative weights by volume within the POI of sales in the home market as compared to the export market, the use of weighted averages for the entire POI could indicate the existence of a margin of dumping that did not reflect the situation at any given moment within the POI.’

140

That sentence, which appears in that report as a direct result of the passage reproduced in paragraph 138 of the present judgment, contains only an illustration of the factual circumstances in which the use of several periods for the calculation of averages might be appropriate in order to ensure that comparability is not affected by differences in the timing of sales within the averaging periods in the domestic and export markets.

141

The General Court’s omission of that sentence does not therefore support a conclusion that it misinterpreted the Panel Report in the United States – stainless steel case and, therefore, that it relied on a misinterpretation of Article 2.4 of the Anti-Dumping Agreement and of Article 2(10) of the basic regulation in order to assess the appellants’ third plea in law, which alleged infringement of that latter provision.

142

As follows from paragraphs 182 to 186 of the judgment under appeal, the General Court took account of the fact that the circumstances referred to in the passage of the Panel Report in the United States – stainless steel case, reproduced in paragraph 137 of the present judgment, could justify the use of a monthly or quarterly calculation of the dumping margin. However, after examining the arguments put forward by the appellants to demonstrate that such a calculation was the appropriate one in the present case, the General Court, in the context of its unfettered assessment of the facts, rejected those arguments as unfounded.

143

For the foregoing reasons, the fifth ground of appeal must be rejected as being, in part, inadmissible and, in part, unfounded.

144

In support of their sixth ground of appeal, the appellants claim that, in paragraphs 175, 176 and 185 of the judgment under appeal, the General Court distorted the evidence in the file by finding that it was not apparent from that file that changes in the cost of production had affected price comparability, and by finding that fluctuations in the cost of production concerned only one product type and that the unequal distribution covered only one quarter and only 3 out of 23 products.

145

In the first place, the appellants submit that, in paragraph 181 of the judgment under appeal, the General Court was right to state that quarterly average prices deviated by 19% from the annual average prices on the domestic market and by 15% on the export market, that is, fluctuations of 14.5% in cost of production. It follows, in their view, that the argument that they did not demonstrate that changes in the cost of production had an effect on price comparability is based on a distortion of the evidence.

146

In the second place, they argue that the General Court distorted the evidence by holding that fluctuations in the cost of production concerned only one product type and that the unequal distribution covered only 3 out of 23 product types. The detailed fluctuations in the cost of production that were indicated related to three product types (or product control numbers (PCNs)), as is clear from Annexes A.1 and A.8 which they had submitted before the General Court in the proceedings at first instance. Moreover, that information was submitted for the three best-selling product types within the European Union. The appellants argue that they also produced, at first instance, Annex A.7 which set out, for those three product types, the distribution of domestic sales and sales within the European Union by quarter which indicated that those three product types accounted for almost 80% of sales in the European Union.

147

The appellants further submit that, in view of their complaints set out in their fifth and sixth grounds of appeal, the General Court was also not entitled to decide, in paragraphs 186, 190 and 191 of the judgment under appeal, that the Commission had not made a manifest error of assessment in refusing to depart from the method of calculating the annual margin and had therefore not infringed Article 2(10) of the basic regulation. That error on the part of the General Court is, they submit, confirmed by paragraph 7.99 of the WTO Panel Report of 27 July 2023 in the case Dominican Republic – Anti-Dumping Measures on Corrugated Steel Bars (WT/DS605/R). Furthermore, the importance of quarterly data, as opposed to annual data, is also illustrated by the fact that the United States Securities and Exchange Commission requires publicly listed companies to publish quarterly reports.

148

The Commission contends that the sixth ground of appeal is inadmissible, in that the appellants have not demonstrated any distortion of the facts.

149

As follows from paragraph 103 of the present judgment, where an appellant alleges that the General Court has distorted the evidence, that appellant must indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in that appellant’s view, led to such distortion. In addition, the distortion must be obvious from the documents in the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence.

150

In the first place, the appellants complain that the General Court distorted the evidence by finding, in paragraph 175 of the judgment under appeal, that they had not demonstrated that the changes in the cost of production had an effect on price comparability, since, in paragraph 181 of the judgment under appeal, it found, as an established fact, that the quarterly average prices deviated by 19% from the annual average prices on the domestic market and by 15% on the export market and that the Commission had not disputed the appellants’ argument, put forward in their application at first instance, that variations in the cost of production are reflected in prices of sales, both domestic and in the European Union.

151

However, by that complaint, the appellants dispute the merits of an assessment by the General Court without specifying the evidence which it allegedly distorted on that occasion. In the absence of such clarification, it cannot be held, as follows from paragraph 149 of the present judgment, that the appellants have demonstrated to the requisite legal standard that there was such distortion. That complaint must therefore be rejected as inadmissible.

152

In the second place, the appellants submit that, in paragraph 176 of the judgment under appeal, the General Court distorted the evidence by finding that fluctuations in the cost of production concerned only one product type. It is, they argue, apparent from the documents submitted by the appellants before the General Court in the proceedings at first instance, and more specifically from pages 40 to 42 of Annex A.1 and from page 25 of Annex A.8 to the application, that the detailed fluctuations in the cost of production related to three product types.

153

In that regard, it must be noted that it is true that the pages of Annex A.1 to the application at first instance that are referred to by the appellants contain indications as to the fluctuation in the cost of production of products with three different PCNs. However, in referring to those pages of Annex A.1, the appellants themselves have referred, both on page 25 of Annex A.8 to their application at first instance and in paragraph 94 of that application, to a fluctuation of ‘up to 14.5%’ of the cost of production for ‘the product concerned’. In those circumstances, the General Court cannot be criticised for having distorted the appellants’ pleadings and the evidence which they produced when it stated, in paragraph 176 of the judgment under appeal, that ‘in the first example, the [appellants] submit that, for only one product type, a fluctuation in the cost of production amounts to 14.5%.’

154

In the third place, the appellants claim that, in paragraph 185 of the judgment under appeal, the General Court distorted the evidence by finding that the unequal distribution of sales during the investigation period covered only 3 out of 23 product types. However, the appellants argue, they put before the General Court, in the proceedings at first instance, an Annex C.2, which is also Annex A.7 to their appeal, indicating the distribution of domestic sales and sales within the European Union by quarter for three product types which, as they explained in their reply at first instance and as the Commission acknowledged in paragraph 90 of its response, account for almost 80% of sales in the European Union. According to the appellants, if the General Court had not distorted the evidence in the file, it could not have found that that unequal distribution covered only 3 out of the 23 product types, which would mean coverage of only 13% of the volume of sales during the investigation period, whereas the actual coverage was almost 80%.

155

In that regard, it is sufficient to note that the appellants have not alleged any error of analysis that is obvious from the documents in the file and that was made by the General Court in its assessment of Annex C.2 to the file at first instance. It must be noted, moreover, that that annex is not referred to in paragraph 185 of the judgment under appeal and that annex gives no indication as to the percentage of sales in the European Union represented by the three product types in question. It follows that, under the guise of an allegation of distortion of that annex, the appellants seek to obtain from the Court of Justice a new assessment of the evidence; it does not have jurisdiction to do so at the appeal stage, as follows from the case-law cited in paragraph 55 of the present judgment. Accordingly, the complaint alleging distortion of Annex C.2 to the file at first instance must be rejected as inadmissible.

156

For the foregoing reasons, the sixth ground of appeal must be rejected.

157

Since the fifth and sixth grounds of appeal must be rejected, it is also necessary to reject as ineffective the appellants’ complaint, which presupposes that those grounds of appeal are well founded, that, in paragraphs 186, 190 and 191 of the judgment under appeal, the General Court was not entitled to find that the Commission had not made a manifest error of assessment in refusing to depart from the method of calculating the annual margin and had therefore not infringed Article 2(10) of the basic regulation.

158

For all the foregoing reasons, the appeal must be dismissed in its entirety.

159

In accordance with Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to the costs. Under Article 138(1) of those rules, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

160

In the present case, since the Commission has applied for costs and the appellants have been unsuccessful, the appellants must be ordered to bear their own costs and to pay those incurred by the Commission.

On those grounds, the Court (Tenth Chamber) hereby: