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

JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

27 April 2022(*)

(Dumping – Imports of cycles, with pedal assistance, with an auxiliary electric motor, originating in China – Definitive anti-dumping duties – Implementing Regulation (EU) 2019/73 – Determination of injury – Article 3(2), (3) and (6) of Regulation (EU) 2016/1036 – Price undercutting calculation – Causal link)

In Case T‑242/19,

Giant Electric Vehicle Kunshan Co. Ltd, established in Kunshan (China), represented by P. De Baere and J. Redelbach, lawyers,

applicant,

v

European Commission, represented by G. Luengo and T. Maxian Rusche, acting as Agents,

defendant,

APPLICATION under Article 263 TFEU for annulment of Commission Implementing Regulation (EU) 2019/73 of 17 January 2019 imposing a definitive anti-dumping duty and definitively collecting the provisional duty imposed on imports of electric bicycles originating in the People’s Republic of China (OJ 2019 L 16, p. 108, and corrigendum OJ 2019 L 16 I, p. 1), in so far as it concerns the applicant,

THE GENERAL COURT (Eighth Chamber),

composed of J. Svenningsen, President, C. Mac Eochaidh (Rapporteur) and J. Laitenberger, Judges,

Registrar: I. Kurme, Administrator,

having regard to the written part of the procedure and further to the hearing on 28 September 2021,

gives the following

Judgment

 Background to the dispute

1        The applicant, Giant Electric Vehicle Kunshan Co. Ltd, is a company established in China active in the production of electric bicycles intended for the domestic market of that State and for export, inter alia to the European Union. It is part of a group of industrial and commercial companies (‘the Giant group’) the ultimate shareholder of which is Giant Manufacturing Co. Ltd. The Giant group has, inter alia, a network of wholly owned subsidiaries in various countries of the European Union, namely related sales companies within the meaning of Article 127 of Commission Implementing Regulation (EU) 2015/2447 of 24 November 2015 laying down detailed rules for implementing certain provisions of Regulation (EU) No 952/2013 of the European Parliament and of the Council laying down the Union Customs Code (OJ 2015 L 343, p. 558).

2        For its export sales to the European Union, the applicant uses two different sales channels. First, it makes own-brand sales through the related sales companies established in the European Union referred to in paragraph 1 above. Those related sales companies sell almost exclusively to independent retail buyers. They are responsible for importation, advertising, marketing, negotiation of sales contracts with retailers, distribution, logistics and after-sales services. Second, as an ‘original equipment manufacturer’ (OEM), it sells directly to an independent buyer, which then resells the electric bicycles through its own retail network in the European Union.

3        On 8 September 2017, the European Bicycle Manufacturers Association (EBMA) lodged a complaint with the European Commission under Article 5 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’), in order to have it carry out an anti-dumping investigation concerning imports of electric bicycles originating in China.

4        By notice published in the Official Journal of the European Union on 20 October 2017 (OJ 2017 C 353, p. 19), the Commission initiated an anti-dumping proceeding concerning the imports at issue (‘the anti-dumping proceeding’), in particular in respect of cycles, with pedal assistance, with an auxiliary electric motor, originating in China, falling within CN codes 8711 60 10 and ex 8711 60 90 (TARIC code 8711 60 90 10) (‘the product concerned’).

5        In parallel, on 8 November 2017, the EBMA lodged a complaint with the Commission under Article 10 of Regulation (EU) 2016/1037 of the European Parliament and of the Council of 8 June 2016 on protection against subsidised imports from countries not members of the European Union (OJ 2016 L 176, p. 55), in order to have it carry out an anti-subsidy investigation concerning the imports at issue, alleging the existence of various subsidies from which Chinese electric bicycle producers benefited.

6        By notice published in the Official Journal of the European Union on 21 December 2017 (OJ 2017 C 440, p. 22), the Commission initiated an anti-subsidy proceeding concerning the imports at issue (‘the anti-subsidy proceeding’).

 Preliminary phases of the anti-dumping investigation

7        The investigation of dumping and injury covered the period from 1 October 2016 to 30 September 2017 (‘the investigation period’). The examination of trends relevant for the determination of injury covered the period from 1 January 2014 to the end of the investigation period.

8        For the purposes of that investigation, the Commission selected a sample of four Union producers, representing 60% of the total production volume and 58% of the Union industry’s total sales. Given that a company related to one of the four abovementioned Union producers, also an electric bicycle producer, was also investigated, in this judgment, the Court, for the sake of simplicity, will refer to the five sampled Union producers.

9        As regards exports from China, the Commission selected a sample of four exporting producers, including the applicant, on the basis of the largest representative volume of exports to the European Union.

10      On 3 January 2018, the applicant submitted market economy treatment (‘MET’) claim forms for the purposes of Article 2(7)(b) of the basic regulation, as well as responses to the anti-dumping questionnaire, for all Chinese companies belonging to the Giant group involved in the production or sale of electric bicycles. On 8 January 2018, it submitted responses to the anti-dumping questionnaire on behalf of its related European sales companies.

11      Between 1 and 9 March 2018, the Commission carried out verification visits at the premises of the applicant and of two other Chinese companies of the Giant group. The verifications related to the claim for MET status and to the questionnaire responses. Between 23 and 26 April 2018, verification visits were undertaken at the premises of the Giant group’s related sales companies in the Netherlands and Germany.

12      On 29 May 2018, in a document entitled ‘Definitive [MET] determination’, the Commission informed the Giant group that it took the view that it could not grant its claim for MET status on the grounds that it had failed to demonstrate that it fulfilled the criteria for obtaining that status pursuant to Article 2(7)(c) of the basic regulation. First, the Chinese Government could exercise complete control over the aluminium market, such that the first criterion provided for in that provision was not fulfilled. Second, the Giant group benefited from several preferential tax schemes and financial advantages, such that the third criterion provided for in the abovementioned provision was not fulfilled.

13      On 3 July 2018, the applicant requested that the Commission ask the sampled Union producers to provide non-confidential information on the level of trade at which they were making the first sale to an independent customer and the related sales channels. Those documents were, in the applicant’s view, necessary in order for it to be able to identify whether, like itself, the sampled Union producers also mainly sold directly to retailers or whether they sold at a different level of trade, for example to large pan-European distributors or under OEM arrangements, which could affect the comparison of prices and the determination of injury. That request for information covered both the anti-dumping proceeding and the anti-subsidy proceeding.

 Implementing regulation imposing a provisional anti-dumping duty

14      On 17 July 2018, the Commission adopted Implementing Regulation (EU) 2018/1012 imposing a provisional anti-dumping duty on imports of electric bicycles originating in the People’s Republic of China and amending Implementing Regulation (EU) 2018/671 (OJ 2018 L 181, p. 7; ‘the provisional regulation’). The Commission also sent the interested parties its provisional disclosure setting out the essential facts and considerations underpinning the provisional regulation.

15      In recitals 82 to 94 of the provisional regulation, the Commission indicated the reasons why it was upholding the MET status decision.

16      As part of the analysis of the existence of dumping, the Commission indicated, in recitals 104 to 106 of the provisional regulation, that, owing to its refusal to grant the Giant group MET status and in the absence of an appropriate analogue market economy third country, it had determined normal value in accordance with the last situation provided for in Article 2(7)(a) of the basic regulation, namely on the basis of the prices actually paid or payable in the Union for the like product. More specifically, the normal value of each product type had been based on the actual sales price of the sampled Union producers to the first independent buyer (ex-works), adjusted to include the target profit of the Union industry.

17      In recitals 107 to 109 of the provisional regulation, the Commission indicated, in relation to the export price, that, where the sampled exporting producers exported the product concerned directly to independent customers in the European Union, the export price was the price actually paid or payable for the product concerned when sold for export to the Union, in accordance with Article 2(8) of the basic regulation. That was the case for the applicant’s direct sales to its OEM customer (‘the applicant’s OEM sales’), which represented less than 15% of its sales, as well as for the three other sampled exporting producers which made only direct OEM sales.

18      By contrast, where the sampled exporting producers exported the product concerned to the European Union through related companies acting as importers, the export price used was a constructed export price, established on the basis of the price at which the imported products were first resold to independent buyers in the Union, in accordance with Article 2(9) of the basic regulation. In those cases, adjustments to the price were made for all costs incurred between importation and resale, including selling, general and administrative expenses (‘SG&A expenses’), as well as the profits of those related companies. That was the case for the applicant’s indirect sales under its own brand to independent retailers, made through its related sales companies in the Union (‘own-brand sales’). Own-brand sales represented the vast majority of the applicant’s export sales, namely more than 85% of its sales, of which more than 90% were to retailers.

19      Recitals 110 and 111 of the provisional regulation state that the comparison between the normal value and the export price of the sampled exporting producers was made on an ‘ex-works’ basis and that, for the purpose of ensuring a fair comparison between those two values, due allowance in the form of adjustments was made for differences affecting prices and price comparability in accordance with Article 2(10) of the basic regulation. The Commission inter alia made adjustments to the export price using the data provided by the sampled exporting producers in relation to banking charges, handling and loading charges in the exporting country and credit costs.

20      Recitals 112 to 116 of the provisional regulation indicate that the Commission had considered making an adjustment under Article 2(10)(d) of the basic regulation, namely a level of trade adjustment, but that it ultimately decided against doing so, since it had not found any consistent and distinct difference in functions and prices of the Union industry between their OEM and non-OEM sales on the Union market at the level of product types, within the meaning of Article 2(10)(d)(i) of that regulation. Article 2(10)(d)(ii) thereof was equally inapplicable as the OEM level of trade did exist on the domestic market of Union producers.

21      In terms of the existence of dumping, recitals 123 and 127 of the provisional regulation indicate that the provisional dumping margin established for the applicant, expressed as a percentage of the cost, insurance, freight (CIF) Union frontier price, duty unpaid, was 34.6%.

22      In its examination of the existence of injury, in recital 155 of the provisional regulation, the Commission stated that it had determined price undercutting during the investigation period by comparing (a) the weighted average sales prices per product type of the sampled Union producers charged to unrelated customers on the Union market, adjusted to an ex-works level, and (b) the corresponding weighted average prices per product type of imports from the sampled exporting producers charged to the first independent customer on the Union market, established on a CIF basis with appropriate adjustments for customs duties of 6% and post-importation costs.

23      In recital 157 of the provisional regulation, the Commission stated that the price comparison had been made on a type-by-type basis for the transactions concerned, duly adjusted where necessary, and after deduction of rebates and discounts. As regards the level of trade of the transactions concerned, it explained that, since both the sampled Union producers and the sampled exporting producers sold to OEM customers as well as under their own brand, it had examined whether an adjustment for level of trade was warranted. In that regard, it is stated that it examined whether there was a consistent and distinct difference in prices between sales to OEM customers and own-brand sales, and concluded that no such consistent and distinct difference in prices existed for the sales of the sampled Union producers.

24      In recital 158 of the provisional regulation, it is indicated that the result of the comparison for the purpose of the determination of price undercutting referred to in paragraphs 22 and 23 above, expressed as a percentage of the sampled Union producers’ turnover during the investigation period, had shown price undercutting margins ranging from 16.2 to 41%.

25      In the context of the examination of the causal link and, in particular, of the effects of the dumped imports, recital 209 of the provisional regulation states, inter alia, that the prices of dumped imports from China significantly undercut Union industry prices during the investigation period, with price undercutting margins ranging from 16.2 to 43.2%, and that the Union industry had lost 23 points of market share in a market growing by 74% while imports from China had increased by 250% and had gained 17 points of market share (from 18 to 35%).

26      In recitals 261, 263 and 264 of the provisional regulation, the Commission explained that it had determined the injury elimination level on the basis of a comparison of the weighted average import price of the sampled exporting producers, duly adjusted for importation costs and customs duties, as had been established for the price undercutting calculation – following the method referred to in paragraph 22 above – with the weighted average non-injurious price of the like product sold by the sampled Union producers on the Union market during the investigation period. The provisional injury elimination level established for the applicant, expressed as a percentage of the weighted average CIF import value, was 27.5%.

27      By Article 1(2) of the provisional regulation, the applicant was made subject to a provisional anti-dumping duty of 27.5% applicable to the net, free-at-Union-frontier price, namely a duty set at the provisional injury elimination level, that margin being lower than the provisional dumping margin, in accordance with the lesser duty rule provided for in Article 7(2) of the basic regulation.

28      On several occasions following the adoption of the provisional regulation, the applicant reiterated its request for information concerning the level of trade at which the sampled Union producers had made their sales during the investigation period (see paragraph 13 above).

29      The applicant also requested, in relation to the comparison between the normal value and the export price in the context of the determination of the existence of dumping, a downward adjustment to the normal value in respect of the level of trade, namely under Article 2(10)(d) of the basic regulation. First, it argued that the adjustments made by the Commission under Article 2(9) of that regulation as regards the export price constructed for its own-brand sales (see paragraph 18 above) changed the level of trade of those sales. The deduction of SG&A expenses and the profits of its related sales companies shifted its own-brand sales from the level of a sale to a retailer to that of an OEM buyer or large pan-European importer, whereas the normal value established for the like product of the sampled Union producers corresponded to the level of a sale to a retailer. Second, it maintained that there was a difference in the level of trade between the normal value corresponding to the level of a sale to a retailer and the export price established for its OEM sales.

30      In addition, the applicant disputed the methodology adopted by the Commission to determine price undercutting (see paragraph 22 above). According to the applicant, given that both the sales of its related sales companies and the sales of the sampled Union producers were mainly to independent retailers and were thus already at the same level of trade, the Commission should simply have compared them with each other, instead of using, for its own-brand sales, and by analogy with the construction of the export price under Article 2(9) of the basic regulation in the context of the determination of the existence of dumping, a constructed CIF price. The CIF price constructed for the applicant’s own-brand sales corresponded, due to the deduction of SG&A expenses and profit of its related sales companies, to a price hypothetically applicable to a large independent importer and not to a retailer. As regards its OEM sales, an adjustment should have been made to the Union producers’ prices used for the price comparison since they corresponded to retail prices.

31      The requests for information, disputes and claims summarised in paragraphs 28 to 30 above were communicated in letters of 25 July, of 6 and 30 August 2018, and on 13 August 2018, in the Giant group’s comments on the provisional regulation and the provisional disclosure, and on 20 August 2018, at the hearing between the applicant and the Commission services before the hearing officer.

32      On 3 August 2018, the Commission informed the applicant, inter alia, of the rejection of its request for information and of the fact that it had not found a consistent difference between sales to OEM customers and own-brand sales liable to justify an adjustment. The Commission also informed it that it had taken note of its claim concerning adjustments for different levels of trade and that it would address those in due course. On 29 August 2018, the Commission again rejected the applicant’s request for information.

33      On 31 August 2018, the Commission contacted the sampled Union producers and asked them to provide non-confidential summaries of the level of trade of their sales on the Union market. The information requested was provided by the parties concerned in the form of ranges and was communicated to the applicant in September 2018. It shows that four of the five sampled Union producers had a sales profile similar to that of the applicant, that is to say, mostly to retailers. One Union producer made the majority of its sales to OEM customers.

34      On 25 September 2018, at a hearing with the Commission services and in writing, the applicant submitted additional comments to the Commission concerning the calculation of the anti-dumping margin and the price undercutting analysis in the light of the information received from the Union producers.

35      On 15 November 2018, the Commission sent the interested parties a final disclosure setting out the essential facts and considerations underlying its proposal for a definitive regulation. On 26 November 2018, the applicant submitted further comments regarding the calculation of the dumping margin and the price undercutting and underselling calculations.

36      Following the anti-dumping proceeding and the anti-subsidy proceeding, the Commission adopted Commission Implementing Regulation (EU) 2019/73 of 17 January 2019 imposing a definitive anti-dumping duty and definitively collecting the provisional duty imposed on imports of electric bicycles originating in the People’s Republic of China (OJ 2019 L 16, p. 108, and corrigendum OJ 2019 L 16 I, p. 1; ‘the contested regulation’), and Commission Implementing Regulation (EU) 2019/72 of 17 January 2019 imposing a definitive countervailing duty on imports of electric bicycles originating in the People’s Republic of China (OJ 2019 L 16, p. 5), which is the subject of an action for annulment in Giant Electric Vehicle Kunshan v Commission (T‑243/19).

 Contested regulation

37      In recitals 22, 26, 52, 55 and 56 of the contested regulation, the Commission confirmed the refusal to grant MET status to the Giant group as well as the manner in which the normal value and the export price had been determined in the context of the analysis of the existence of dumping (see paragraphs 15 to 21 above).

38      In the comparison between the normal value and the export price for the purposes of the determination of the dumping margin, recital 76 of the contested regulation states that typically more than 85% of the sampled Union producers’ sales were to retailers. In recital 77 of the contested regulation, the Commission rejected the level of trade adjustment claim submitted by the applicant in respect of its own-brand sales (see paragraph 29 above) on the ground that the adjustments made under Article 2(9) of the basic regulation were intended to remove the effect of related importers in the Union, and not to change the level of trade of the sale, which remained essentially – typically above 85% – to retailers.

39      Recital 79 of the contested regulation indicates that the definitive dumping margin established for the applicant had been reduced to 32.8%.

40      In recitals 90 to 96 of the contested regulation, the Commission explained the reasons why it had rejected the applicant’s arguments concerning the use of the constructed CIF price instead of the declared CIF value of its imports in the determination of price undercutting as regards the applicant’s own-brand sales (see paragraph 30 above). In that context, it stated, in particular, that, in order to allow for a fair comparison, the deduction of SG&A expenses and profit from the resale price to unrelated customers made by the related importer was warranted in order to arrive at a reliable CIF price. In recitals 97 and 98 of the contested regulation, the Commission explained why it had rejected the applicant’s level of trade adjustment claim in respect of its OEM sales, namely that there was no consistent and distinct price difference for OEM sales and brand owner sales in the Union.

41      Recital 99 and Table 2 of the contested regulation indicate that the definitive price undercutting margins for the sampled exporting producers range from 16.2 to 43.2%, including a price undercutting margin in respect of the applicant of 19.4%.

42      In recital 100 of the contested regulation, the Commission confirmed, inter alia, the methodology for determining price undercutting set out in paragraphs 22 and 23 above.

43      In recitals 158 and 213 of the contested regulation, the Commission confirmed, in essence, its findings set out in recital 209 of the provisional regulation regarding the causal link and the effects of the dumped imports, as well as the methodology adopted in relation to the calculation of the injury elimination level described in recitals 257 to 261 of the provisional regulation (see paragraphs 25 and 26 above).

44      By Article 1(2) of the contested regulation, the applicant was made subject to a definitive anti-dumping duty of 20.7% applicable to the net, free-at-Union-frontier price. That definitive duty was set on the basis of the injury elimination level, that margin being lower than the dumping margin, in accordance with the lesser duty rule provided for in Article 9(4) of the basic regulation, and taking into account the definitive countervailing duties fixed by Implementing Regulation 2019/72 in the context of the anti-subsidy proceeding.

 Procedure and forms of order sought

45      By application lodged at the Court Registry on 9 April 2019, the applicant brought the present action.

46      By document lodged at the Court Registry on 12 August 2019, the EBMA applied to intervene in the present proceedings in support of the form of order sought by the Commission. By order of 16 September 2019, Giant Electric Vehicle Kunshan v Commission (T‑242/19, not published, EU:T:2019:661), the President of the Ninth Chamber of the General Court dismissed the EBMA’s application to intervene.

47      Following a change in the composition of the Chambers of the Court, pursuant to Article 27(5) of the Rules of Procedure of the General Court, the Judge-Rapporteur was assigned to the Eighth Chamber, to which the present case was accordingly allocated.

48      The applicant claims that the Court should:

–        annul the contested regulation in so far as it concerns it;

–        order the Commission to pay the costs.

49      The Commission claims that the Court should:

–        dismiss the action as partially inadmissible, partially ineffective and, in any event, unfounded;

–        order the applicant to pay the costs.

 Law

50      In support of its action, the applicant puts forward four pleas in law alleging various infringements of the basic regulation, namely:

–        first, a manifest error of assessment, in that the Commission determined that the aluminium raw material purchases of the Giant group were subject to significant State interference and did not substantially reflect market values pursuant to the first indent of Article 2(7)(c) of the basic regulation;

–        second, a manifest error of assessment, in that the Commission determined that the production costs and financial situation of the Giant group were subject to significant distortions, carried over from the former non-market economy system pursuant to the third indent of Article 2(7)(c) of the basic regulation;

–        third, an infringement of the introductory wording of Article 2(10) as well as Article 2(10)(d)(i) and (ii) of the basic regulation, in that, for the purposes of the determination of the existence of dumping, the Commission did not adjust the normal value for differences in the levels of trade between the export price and the normal value and did not provide it with the information necessary for it to quantify its adjustment claims;

–        fourth, an infringement of Article 3(2), (3) and (6) of the basic regulation, in that the Commission failed to compare, for the purpose of the undercutting and underselling calculations, import prices with the price of a like product of the Union industry at the same level of trade and at the point where the goods enter into competition with each other.

51      The Court considers it appropriate to examine the fourth plea first.

 The fourth plea

52      In its fourth plea, the applicant claims that the Commission infringed Article 3(2), (3) and (6) of the basic regulation in failing to compare, for the purpose of the price undercutting calculations, import prices with the price of the like product produced by the Union industry at the same level of trade and at the point where the goods enter into competition with each other.

53      First, as regards its own-brand sales, the applicant disputes the application by analogy, by the Commission, of Article 2(9) of the basic regulation, provided for in the context of the determination of the existence of dumping, in the present case, for the purpose of the calculation of price undercutting. Applying that provision in the context of the determination of price undercutting has no legal basis and is unnecessary in the present case. Since both the sales of the applicant’s related sales companies and the sales of the sampled Union producers were mainly to independent retailers and were already at the same level of trade, the Commission should simply have compared them with each other. Applying the abovementioned provision created a difference in the level of trade, whereas no such difference had existed prior to its application, and an artificial finding of price undercutting. Moreover, the impact of the imports and their effect on the prices of the Union industry should be determined by looking at the actual prices of the imports which compete with the prices of the Union producers on the Union market.

54      Second, the applicant claims that its OEM sales were compared with Union producers’ sales of own-brand products to retailers. The latter sales should be adjusted to bring them to the level of a sale to an unrelated OEM customer in the Union.

55      Those errors in the calculation of price undercutting biased the finding of injury to the Union industry caused by dumped imports, the underselling and injury margin calculations determined for it and, ultimately, the level of anti-dumping duty imposed on it.

56      The Commission disputes those arguments, contending that the present plea is ineffective and, in any event, unfounded.

57      With regard to the plea’s alleged ineffective nature, the Commission contends that the applicant has failed to show how the alleged error in the price undercutting calculations with respect to it would have led to a different conclusion on injurious dumping or how it would taint the injury analysis as a whole. It states that its findings on the existence of price undercutting relied also on the very low average price of Chinese imports based on statistical data from the statistical office of the European Union (Eurostat) and on the calculations made in respect of the three other sampled exporting producers. It states that, in finding injury, it also relied on considerations relating to the volumes of the imports at issue as well as on the correlation between the decrease in the Union industry’s market share and the increase in the market share of the Chinese exporting producers.

58      Next, the Commission argues that the applicant has not succeeded in calling into question the calculation of price undercutting established in respect of the three other sampled exporting producers for which the contested asymmetry did not arise. Furthermore, if it had excluded the applicant from the analysis, or even if no price undercutting had been found in respect of the applicant, it would nevertheless have observed price undercutting, since the range of price undercutting found would remain between 16.2 and 43.2%.

59      In addition, the Commission contends, relying on alternative price undercutting calculations relating to the applicant, annexed to the defence and to the rejoinder, that, even following those alternative calculations, the applicant’s prices would still undercut those of the Union industry. In the first of those calculations, in which the applicant’s prices were compared with those of the sampled Union producers, price undercutting would still be above 2%. In the second, in which the Commission used the CIF EU border price for the applicant’s sales, but deducted hypothetical SG&A expenses and profit of the sampled Union producers’ related selling entities, the calculation would still show price undercutting of more than 10%. In the third, in which the Commission added customers to the type-by-type analysis and compared the sales of the sampled Union producers to distributors, retailers and OEM customers with sales made by the applicant to distributors, retailers and OEM customers respectively, the overall result would be even higher than the price undercutting margin established for the applicant in the contested regulation.

60      Last, the Commission contends that the applicant’s arguments concerning errors in the calculation of the underselling margin and the injury margin in respect of the applicant are also ineffective.

61      As regards the allegedly unfounded nature of the present plea and concerning the applicant’s own-brand sales, the Commission states that Article 3(3) of the basic regulation specifically provides that the existence of significant price undercutting has to be examined at the level of the dumped imports, and not at the level of any subsequent resale price on the Union market. It also stresses the importance of using reliable export prices which are not affected by an intra-group relationship. Therefore, the Commission was justified in applying Article 2(9) of the basic regulation to determine the price undercutting margin in respect of the applicant’s own-brand sales in this case. In addition, the methodology which it followed ensures that all exporting producers receive equal treatment, whether they sell directly or through related selling entities. Lastly, as regards the applicant’s OEM sales, the Commission states that the applicant failed to show that there were consistent price differences according to the type of customer – OEM or retailer – on the part of the sampled Union producers. Given that the prices of the Union producers’ sales to OEM customers and to retailers were similar, the use of those prices without any distinction based on the type of customer had no impact on the applicant’s OEM sales.

 Preliminary observations

62      By the present plea, the applicant submits that the Commission made errors in the calculation of price undercutting which constitute infringements of Article 3 of the basic regulation and affect the validity of the contested regulation with regard to it. The plea is divided into two parts, alleging, first, that the application, by analogy, of Article 2(9) of the basic regulation in relation to the applicant’s own-brand sales has no legal basis and was unnecessary in the present case for the purpose of the calculation of price undercutting in respect of those sales and, second, that the Commission did not make a fair comparison, for the purpose of calculating price undercutting, between import prices and the price of a like product of the Union industry.

63      Analysing the effect of the dumped imports on the prices applied in the European Union for a like product of the Union industry is an essential element of anti-dumping investigations. Under Article 1(1) of the basic regulation, an anti-dumping duty may be applied to a dumped product only if its release for free circulation in the Union causes injury.

64      In accordance with Article 3(2) of the basic regulation, a determination of injury to the Union industry is to be based on positive evidence and is to involve an objective examination of, first, the volume of the dumped imports and the effect of those imports on prices in the Union market for like products and, second, the consequent impact of those imports on that industry.

65      With regard to the effect of the dumped imports on prices, Article 3(3) of the basic regulation provides for the obligation to give consideration to whether there has been, for those imports, significant price undercutting as compared with the price of a like product of the Union industry, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which would otherwise have occurred, to a significant degree. No one or more of those factors can necessarily give decisive guidance.

66      Under Article 3(6) of the basic regulation, it must be demonstrated, from all the relevant evidence presented in relation to paragraph 2 of that article, that the dumped imports are causing injury. Specifically, that entails demonstrating that the volume or price levels identified pursuant to paragraph 3 of the said article are responsible for an impact on the Union industry as provided for in paragraph 5 of the same article, and that that impact exists to a degree which enables it to be classified as material.

67      Moreover, according to settled case-law, in the realm of measures to protect trade, the Commission enjoys a broad discretion by reason of the complexity of the economic, political and legal situations which it has to examine (see, to that effect, judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraph 63 and the case-law cited).

68      The determination of the existence of injury caused to the Union industry requires an appraisal of complex economic situations and the judicial review of such an appraisal must therefore be limited to verifying whether relevant procedural rules have been complied with, whether the facts have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers. That is particularly the case as regards the determination of the factors injuring the Union industry in an anti-dumping proceeding (see judgment of 10 September 2015, Bricmate, C‑569/13, EU:C:2015:572, paragraph 46 and the case-law cited) and in particular the analysis of price undercutting (Opinion of Advocate General Pitruzzella in Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2021:533, paragraph 30).

69      The basic regulation does not contain any definition of the concept of price undercutting and does not lay down any method for the calculation thereof (judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑301/16, EU:T:2019:234, paragraph 175).

70      The calculation of the price undercutting of the imports at issue is carried out, in accordance with Article 3(2) and (3) of the basic regulation, for the purposes of determining the existence of injury suffered by the Union industry by reason of those imports and it is used, more broadly, to assess that injury and to determine the injury margin, namely the injury elimination level. The obligation to carry out an objective examination of the impact of the dumped imports, as set out in Article 3(2) of the basic regulation, requires a fair comparison to be made between the price of the product concerned and the price of the like product of that industry when sold in the territory of the Union (see judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑301/16, EU:T:2019:234, paragraph 176 and the case-law cited).

71      In order to guarantee the fairness of that comparison, prices must be compared at the same level of trade. A comparison of prices obtained at different levels of trade, that is to say, one which does not include all the costs relating to the level of trade which must be taken into account, would necessarily be misleading in its results and would not allow a correct assessment to be made of the injury to the Union industry. Such a fair comparison is a prerequisite of the lawfulness of the calculation of the injury to that industry (see judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑301/16, EU:T:2019:234, paragraph 176 and the case-law cited).

72      It is in the light of the foregoing considerations that it is necessary to examine, at the outset, the second part of the present plea, alleging that the Commission did not make a fair comparison, for the purpose of the calculation of price undercutting, between import prices and the price of a like product of the Union industry.

 The second part of the fourth plea, alleging that the Commission did not make a fair comparison, for the purpose of the calculation of price undercutting, between import prices and the price of a like product of the Union industry

73      In the present case, as is indicated in paragraph 22 above, in its examination of the existence of injury, in recital 155 of the provisional regulation, the Commission stated that it had determined price undercutting during the investigation period by comparing:

‘(1)      the weighted average sales prices per product type of the four sampled Union producers charged to unrelated customers on the Union market, adjusted to an ex-works level; and

(2)      the corresponding weighted average prices per product type of the imports from the sampled exporting producers … to the first independent customer on the Union market, established on a CIF basis with appropriate adjustments for customs duties of 6% and importation costs.’

74      Recital 155 of the provisional regulation appears to show that, according to the Commission, the price comparison was made at the same level of trade, namely by taking into account the prices at an ex-works level for the sampled Union producers’ sales and the prices established on a CIF basis after customs clearance for the applicant’s sales.

75      However, following questions put by the Court by way of measures of organisation of procedure, the Commission explained that, when comparing the prices charged by the sampled Union producers to retailers with those charged by the applicant to retailers, it had, as regards the Union producers, used the prices reported by those producers for their sales to independent customers – whether wholesalers, distributors, traders, retailers, end-users or consumers, OEM customers or others – and deducted certain costs, namely discounts, commissions, transport costs and credit notes, in order to establish an ex-works price, that is to say, the price at which a customer could buy the product at the factory. In the case of sales made by the sampled Union producers’ related selling entities to retailers, it had not deducted SG&A expenses and the profits of those related selling entities.

76      Thus, it is apparent that, in reality, in the price comparison, as regards the sampled Union producers, either the ex-works prices of the said producers, when they sold directly to independent buyers, or the prices of those producers’ related selling entities, were taken into account, the latter prices including SG&A expenses and the profits of those related selling entities.

77      On the other hand, as regards the applicant’s own-brand sales, the Commission indicated that the price comparison took into account ‘EU landed’ prices, established on the basis of the CIF export price at the EU border, corresponding to the export price as constructed, in accordance with Article 2(9) of the basic regulation in the context of the determination of the dumping margin, after customs clearance.

78      In that regard, the Commission explained that, as it had done in respect of the Union producers, it had deducted discounts, commissions, transport costs and credit notes from the prices of the applicant’s related sales companies, so that all sales, namely those of the Union producers and those of the applicant, would be compared on the same terms. It had then deducted SG&A expenses and the profit of the applicant’s related sales companies, using Article 2(9) of the basic regulation by analogy, in order to establish the CIF export price at the EU border. Finally, it had added amounts for customs duties (6%) and post-importation costs in order to establish the ‘EU landed’ price, namely a constructed price at which any customer in the European Union can purchase the product concerned at the time it is released within the internal market.

79      Thus, it is apparent that, as regards the applicant’s own-brand sales, the CIF export prices at the EU border were based on export prices constructed by taking into account various adjustments, in particular those intended to reflect the export price of the product concerned before any involvement of the applicant’s related sales companies.

80      The adjustments made by the Commission for the purposes of the price undercutting analysis to the applicant’s prices in respect of its own-brand sales, namely through its related sales companies in the European Union, and to the prices of the sampled Union producers, may be illustrated by the simplified table reproduced below:

81      Last, it is apparent from the case file that, as regards the OEM sales of the applicant and of the three other sampled exporting producers which made direct OEM sales, shipments of the product concerned were, in general, made either on a CIF basis or on a free-on-board (‘FOB’) basis in China. The Commission therefore used, in order to establish price effects, their reported CIF export prices or, in the case of shipments on an FOB basis, the reported FOB export prices to which it added the amounts for freight and insurance to establish the CIF export price at the EU border, in accordance with Article 2(8) of the basic regulation. It then added amounts for customs duties (6%) and post-importation costs in order to establish the ‘EU landed’ price.

82      Since independent buyers on an OEM basis undertake the downstream marketing of the product concerned in the European Union, including marketing to retailers, the prices referred to in paragraph 81 above used by the Commission did not include SG&A expenses or profits relating to the subsequent downstream sales.

83      It is apparent from the considerations set out in paragraphs 75 to 82 above that, even though the Commission indicated, in recital 155 of the provisional regulation and in recital 94 of the contested regulation, that it had taken into consideration in the comparison the prices of the sampled Union producers at the ‘ex-works’ level, in reality it compared the prices of sales to the first independent buyers of those producers with the applicant’s CIF prices.

84      The marketing of products carried out not directly by the producer, but through selling entities, implies the existence of costs and a profit margin specific to those entities, so that the prices charged by them to independent buyers are generally higher than the prices charged by producers in their direct sales to such buyers and thus cannot be assimilated to those latter prices (judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑301/16, EU:T:2019:234, paragraph 184).

85      That consideration is not called into question by the Commission’s argument that the differentiated treatment of the SG&A expenses and profits of the applicant’s related sales companies and of those of the sampled Union producers’ related selling entities is explained by the fact that the applicant was refused ‘single economic entity’ status. The SG&A expenses and profits which are the subject of the deductions in question and which are, ultimately, marketing costs in the European Union are necessarily different from any SG&A expenses that the applicant might have borne in China. It follows that the Commission was not entitled to take the view that the marketing costs borne by the applicant in China were comparable to the SG&A expenses borne by the sampled Union producers’ related selling entities with a view to marketing the like product in the European Union.

86      In the present case, it is common ground that the applicant’s sales networks and those of four of the five sampled Union producers are similar, in so far as the bulk of the sales of the applicant and of those Union producers in the European Union is made to independent retailers of electric bicycles.

87      In that regard, first, it is apparent from the case file that more than 85% of the applicant’s sales were own-brand sales, made through its related sales companies in the European Union, more than 90% of which were made to retailers. Less than 15% of the applicant’s sales were direct OEM sales.

88      Second, according to recital 76 of the contested regulation, typically, more than 85% of the sampled Union producers’ sales were made to retailers. Moreover, it is apparent that the majority of the sampled Union producers sold most of their bicycles through related selling entities.

89      Therefore, by carrying out, for the price comparison made in the context of the price undercutting calculation, the assimilation, referred to in paragraph 76 above, between the prices charged by the sampled Union producers in their direct sales to independent buyers and the prices charged by the related selling entities of those producers to such buyers, only as regards the like product of the Union industry, the Commission took into account for that product a price which was inflated and therefore unfavourable to the applicant, which, like the majority of the sampled Union producers, makes most of its sales in the Union through related sales companies.

90      In those circumstances, by taking into account, in the present case, in relation to the prices of the sampled Union producers, certain elements which concern a different level of trade from that which it used for the purposes of the comparison (ex-works), elements which it had nevertheless deducted from the applicant’s prices as regards its own-brand sales, or which were not present as regards its OEM sales since the downstream marketing of the product concerned was carried out by the independent buyer itself, the Commission did not make a fair comparison in the calculation of the applicant’s price undercutting margin.

91      It is clear, however, from the case-law cited in paragraphs 70 and 71 above, that the obligation to carry out an objective examination of the impact of the dumped imports, laid down in Article 3(2) of the basic regulation, requires a fair comparison to be made between the price of the product concerned and the price of the like product of the Union industry, such a fair comparison being a prerequisite of the lawfulness of the calculation of the injury to that industry.

92      Moreover, while it is for the Commission to choose the method of analysis which it considers most appropriate for determining price effects, according to the particularities of the investigation in question, the fact remains that the objectivity and fairness of the examination must be guaranteed (see, to that effect, Opinion of Advocate General Pitruzzella in Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2021:533, paragraph 143).

93      It follows that if, in the exercise of its broad discretion referred to in paragraphs 67 and 68 above, the Commission deemed it necessary, in the present case, to bring the applicant’s prices to a CIF level, inter alia, to ensure that reliable prices were taken into account and to ensure equal treatment between all the sampled exporting producers, it was also incumbent on it to ensure that the prices of the sampled Union producers had been established at an equivalent level.

94      Accordingly, the price undercutting calculation carried out by the Commission in respect of the applicant in the context of the contested regulation must be regarded as vitiated by a methodological error which led to an unfair comparison and, therefore, as contrary to Article 3(2) of the basic regulation.

95      Consequently, the applicant’s challenge to the calculation of price undercutting in respect of its products is well founded.

 Consequences of the error found

96      It follows from the foregoing considerations that the methodological error found in paragraph 90 above made by the Commission in calculating the price undercutting of the product concerned for the applicant’s products had the effect of identifying undercutting of those prices, the importance or even existence of which has not been properly established.

97      Nevertheless, the Commission contends that the fourth plea is ineffective in so far as the alleged errors have no impact on the quantification of the injury suffered by the Union industry.

98      In that context, as is set out in paragraphs 56 to 60 above, in the first place, the Commission submits that the price undercutting of the imports at issue is only one of the factors on which it based its findings relating to the existence of material injury to the Union industry.

99      In that regard, it is true that, according to the case-law and as is noted in paragraphs 64 and 65 above, the objective examination regarding the determination of injury caused to the Union industry, provided for in Article 3(2) of the basic regulation, must relate, first, to the volume of the dumped imports and the effect of those imports on prices in the Union market for like products, and, secondly, to the consequent impact of those imports on the Union industry. Thus, as regards the determination of that volume or those prices, Article 3(3) of the basic regulation sets out the factors to be taken into account in that examination, while specifying that one or more of those factors cannot in themselves give decisive guidance (see, to that effect, judgment of 10 September 2015, Bricmate, C‑569/13, EU:C:2015:572, paragraphs 52 and 53 and the case-law cited).

100    The same is true with respect to the impact of the dumped imports on the Union industry. It follows from Article 3(5) of the basic regulation that the Commission has the task of evaluating all relevant economic factors and indices which have a bearing on the state of that industry, and one or more of those factors does not necessarily give decisive guidance. That provision thus gives the Commission discretion in the examination and evaluation of the various items of evidence (see, to that effect, judgment of 10 September 2015, Bricmate, C‑569/13, EU:C:2015:572, paragraph 54 and the case-law cited).

101    Finally, with respect to the causal link, under Article 3(6) of the basic regulation the Commission must demonstrate that the volume or price levels identified pursuant to paragraph 3 of that article are responsible for an impact on the Union industry as provided for in paragraph 5 thereof and that that impact exists to a degree which enables it to be classified as material (see, to that effect, judgment of 10 September 2015, Bricmate, C‑569/13, EU:C:2015:572, paragraph 55).

102    It follows from the case-law cited in paragraphs 99 to 101 above that the Commission was not obliged, in the present case, to determine price undercutting margins and that it was perfectly entitled to base its injury analysis and, therefore, the causal link, on other price phenomena listed in Article 3(3) of the basic regulation, such as significant depression of Union industry prices or prevention of price increases to a notable extent.

103    In recitals 200 and 209 of the provisional regulation, however, in the context of its provisional disclosure on injury and the causal link between the dumped imports and that injury, the Commission stressed the importance it attached to the existence of price undercutting. It observed in those recitals in particular that the prices of dumped imports from China ‘significantly undercut Union industry prices during the investigation period’, with price undercutting margins ranging from 16.2 to 43.2%. It also noted that, during the period from 1 January 2014 to the end of the investigation period, the Union industry had lost 23 points of market share in a market growing by 74% while imports from China had increased by 250% and gained 17 points of market share (from 18 to 35%). It further added that the pressure exerted on prices by dumped imports from China had kept profits and cash flows at a depressed level. Those findings were confirmed, essentially, in recitals 157 and 158 of the contested regulation, the loss of points of market share of the Union industry having been revised to 24 percentage points.

104    Admittedly, as a complement to the calculation of the price undercutting margins of the sampled exporting producers, the Commission used, in recitals 151 to 154 and in Table 4 of the provisional regulation, Eurostat statistics to demonstrate the downward evolution of the average prices of imports into the European Union from China between 2014 and the investigation period and found that the average prices of imports were below those of the Union producers. Nevertheless, the Commission itself indicates, in recital 154 of the provisional regulation, that the evolution of prices is ‘not completely reliable’ in so far as ‘the detailed product type mix was not known due to the general nature of the Eurostat statistics’. Moreover, it makes no reference to those statistics in recital 209 of the provisional regulation relating to the causal link between the imports at issue and the injury suffered by the Union producers, whereas that recital refers, a contrario, to the price undercutting margins. Nor does it make reference to those statistics in recitals 100 and 158 of the contested regulation by which the abovementioned findings of the provisional regulation were confirmed.

105    In addition, in recital 89 of the contested regulation, in its analysis of imports from China, the Commission emphasised, in essence, that the declining trend in the average prices of imports from China referred to in the Eurostat statistics had to be considered in the light of the analyses carried out on the basis of product type, which had led to findings of ‘substantial’ dumping and price undercutting.

106    In any event, the fact that the Eurostat statistics show that the prices of imports are lower than the prices of the Union producers does not contradict the fact that, in recital 209 of the provisional regulation, confirmed by recital 158 of the contested regulation, the Commission relied on the price undercutting margins to demonstrate the causal link between the imports at issue and the injury to the Union producers.

107    Last, in recital 131 of the contested regulation, the Commission referred to a significant volume of imports at dumped and undercutting prices and, in recital 153 of the same regulation, also emphasised the relevance of the finding of price undercutting.

108    It follows from the recitals of the provisional regulation and of the contested regulation mentioned in paragraphs 103, 105 and 107 above that the price undercutting margins as calculated in those regulations were an indicator of primary importance for the Commission and are, in essence, a decisive element in the conclusion that imports of the product concerned are at the root of the injury to the Union industry.

109    Therefore, any error affecting the calculation of the price undercutting margins in the present case is likely to have a bearing on the causal link between the imports of the products concerned and the injury to the Union industry.

110    In accordance with Article 1(1) and Article 3(6) of the basic regulation, the existence of a causal link between the dumped imports and the injury to the Union industry is a necessary condition for the imposition of anti-dumping duties.

111    It follows that, contrary to what the Commission asserts, the methodological error found in paragraph 90 above cannot be overcome by taking other indicators into consideration.

112    In the second place, the Commission submits that the alleged errors concern only the determination of price undercutting in respect of the applicant and that the applicant has failed to call into question the price undercutting calculation for the other sampled exporting producers. Furthermore, if it had excluded the applicant from the analysis, or even if no price undercutting had been found in respect of the applicant, it would nevertheless have observed price undercutting, based on the macroeconomic analysis of the prices and of the price undercutting margins of the other sampled exporting producers.

113    In that regard, first, the methodological error found in paragraph 90 above is likely to have a bearing on the calculation of price undercutting established in respect of the other sampled exporting producers.

114    The three sampled exporting producers other than the applicant, after all, made only direct OEM sales, namely direct sales to independent buyers on an OEM basis, those buyers themselves carrying out the downstream marketing of the product concerned in the European Union. As is indicated in paragraph 82 above, their export prices did not include SG&A expenses or profits relating to the subsequent downstream marketing of the product concerned. By contrast, as is noted in paragraphs 76, 83, 89 and 90 above, with regard to the sampled Union producers, the Commission assimilated the prices charged by those producers in their direct sales to independent buyers to those charged by those same producers’ related selling entities to such buyers. In doing so, that institution took into consideration elements which concern a different level of trade from that which it used for the purposes of the comparison (ex-works), which were not present as regards the OEM sales of the sampled exporting producers and, ultimately, a price that was possibly higher than that used for the three sampled exporting producers other than the applicant.

115    Second, the Commission’s suggestion to remove the applicant from the examination of the price undercutting margins must be rejected in so far as, as is mentioned in recitals 27, 42 and 45 of the provisional regulation, the Commission decided to create a representative sample of all Chinese exporting producers on the basis of the largest representative volume of exports to the European Union and decided to include the applicant in that sample.

116    Third, the Commission’s attempt to mitigate the scope of the methodological error found in paragraph 90 above on the grounds, first, that the applicant and the sample of exporting producers represent only a part of the total imports from China to the European Union and, second, that 70% in terms of volume and approximately 50% in terms of value of the dumped imports within the sampled exporting producers would still show significant price undercutting based on the other three sampled exporting producers must be dismissed. Again, that line of argument ignores the Commission’s decision to carry out sampling and to concentrate its analysis on the four exporting producers supposedly representative of all Chinese exporting producers. Furthermore, as is noted in paragraphs 103, 105 and 106 above, in recital 209 of the provisional regulation, substantiated and confirmed by recitals 99 and 158 of the contested regulation, the Commission relied on the price undercutting margins of the four sampled exporting producers, and not of all Chinese exporting producers, to demonstrate the existence of a causal link between the imports at issue and the injury to the Union producers.

117    In the third place, the Commission contends, relying on alternative price undercutting calculations relating to the applicant, produced in the context of the present action, that, even following those alternative calculations, the applicant’s prices would still undercut the prices of the Union producers.

118    The Commission cannot however rely on the three alternative price undercutting calculations put forward in the present action to overcome the methodological error found in paragraph 90 above.

119    The Commission cannot properly rely, in support of the contested regulation, on reasons which were not contained in that regulation and which were raised by it only after the bringing of the action (see, by analogy, judgment of 21 March 1996, Farrugia v Commission, T‑230/94, EU:T:1996:40, paragraph 36 and the case-law cited). In that context, it must be pointed out that the applicant had challenged the methodology adopted by the Commission relating to the calculation of price undercutting throughout the administrative procedure.

120    Moreover, the Commission’s line of argument amounts to nothing more than asking the Court to make a substitution of grounds. It is settled case-law that, in the context of an action for annulment, the General Court cannot substitute its own reasoning for that of the author of the contested act (see judgment of 26 October 2016, PT Musim Mas v Council, C‑468/15 P, EU:C:2016:803, paragraph 64 and the case-law cited).

121    Last, the Commission contends that the applicant’s arguments concerning errors in the calculation of the underselling margin and the injury margin in respect of the applicant are ineffective.

122    In that regard, first, it is apparent from recital 261 of the provisional regulation, referred to in paragraph 26 above, that the injury elimination level was determined on the basis of a comparison involving the weighted average import price of the sampled exporting producers, duly adjusted for importation costs and customs duties, as had been established for the price undercutting calculation. Second, it is apparent from recitals 217 and 218 of the contested regulation that the injury margin was lower than the dumping margin and that the Commission therefore concluded that the definitive anti-dumping measures had to be imposed on imports of the product concerned at the level of the lower of two margins found (dumping and injury), in accordance with the lesser duty rule provided for in the third sentence of Article 9(4) of the basic regulation.

123    Accordingly, it cannot be ruled out that, were it not for the methodological error identified in paragraph 90 above, relating to the undercutting of the applicant’s prices, the injury margin of the Union industry would have been established at a level even lower than that established in the contested regulation and lower still than the dumping margin established therein. In that case, in accordance with Article 9(4) of the basic regulation, the amount of the anti-dumping duty should be reduced to a rate which would be adequate to remove the injury.

124    It follows that, contrary to what the Commission asserts, the methodological error found in paragraph 90 above cannot be overcome.

125    Since the methodological error found in paragraph 90 above in the calculation of price undercutting is liable to call into question the legality of the contested regulation, by invalidating the Commission’s entire analysis relating to the causal link (see, to that effect, judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑301/16, EU:T:2019:234, paragraph 195 and the case-law cited), that regulation must be annulled in so far as it concerns the applicant, without it being necessary to examine and assess the merits not only of the applicant’s claim alleging that the Commission erred in the calculation of the underselling margin, but also of the first part of the present plea and of the three other pleas in law which it raises.

126    So far as concerns, in particular, the first part of the fourth plea, it should be noted that, irrespective of the application by analogy of Article 2(9) of the basic regulation for the purposes of assessing the existence of injury within the meaning of Article 3 of that regulation, the unfair nature of the comparison found under the second part of that plea vitiated, in any event, the Commission’s analysis under Article 3 of the basic regulation.

 Costs

127    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby:

1.      Annuls Commission Implementing Regulation (EU) 2019/73 of 17 January 2019 imposing a definitive anti-dumping duty and definitively collecting the provisional duty imposed on imports of electric bicycles originating in the People’s Republic of China in so far as it concerns Giant Electric Vehicle Kunshan Co. Ltd;

2.      Orders the European Commission to bear its own costs and to pay those incurred by Giant Electric Vehicle Kunshan.

Delivered in open court in Luxembourg on 27 April 2022.

*      Language of the case: English.

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