Judgment of the General Court (Third Chamber, sitting with five Judges) 9 September 2026

JUDGMENT OF THE GENERAL COURT (Third Chamber, sitting with five Judges)

9 September 2026 ( * )

( Commercial policy – Subsidies – Imports of stainless steel cold-rolled flat products originating in Indonesia – Definitive countervailing duty – Regional specificity – Article 4(3) and (5) of Regulation (EU) 2016/1037 – Calculation of the benefit – Articles 6 and 7 of Regulation 2016/1037 – Non-cooperation and use of the facts available – Article 28 of Regulation 2016/1037 – WTO law )

In Case T‑348/22,

PT Indonesia Ruipu Nickel and Chrome Alloy, established in Jakarta (Indonesia), represented by R. Antonini, E. Monard, and B. Maniatis, lawyers,

applicant,

v

European Commission, represented by J. Zieliński, acting as Agent,

defendant,

supported by

Eurofer, European Steel Association, AISBL, established in Brussels (Belgium), represented by O. Prost, C. Bouvarel, M. Parys and O. Chef, lawyers,

intervener,

THE GENERAL COURT (Third Chamber, sitting with five Judges),

composed, at the time of the deliberations, of P. Škvařilová-Pelzl, President, I. Nõmm, G. Steinfatt (Rapporteur), D. Kukovec and R. Meyer, Judges,

Registrar: M. Zwozdziak-Carbonne, Administrator,

having regard to the written part of the procedure, in particular:

– the application lodged at the Registry of the General Court on 9 June 2022,

– the measures of organisation of procedure of 10 April 2024 and the parties’ responses lodged at the Court Registry on 31 May 2024,

– the measures of organisation of procedure of 5 December 2024 and the parties’ responses lodged at the Court Registry on 19, 20 and 30 December 2024,

– the requests for confidential treatment of certain information in the application, the defence, the reply and the rejoinder as well as in the Commission’s reply of 31 May 2024, lodged by the applicant on the 12 October 2022, 3 November 2022, 8 December 2022, 28 February 2023 and 24 June 2024,

having regard to the order of 22 February 2023, PT Indonesia Ruipu Nickel and Chrome Alloy v Commission (T‑348/22, not published, EU:T:2023:84), dismissing the application for leave to intervene submitted by the European Association of Non-Integrated Metal Importers & Distributors (Euranimi), and the order of the Vice-President of the Court of 5 June 2023, Euranimi v Commission (C‑140/23 P(I), not published, EU:C:2023:446), dismissing the appeal brought by Euranimi against that order,

further to the hearing on 5 March 2025,

gives the following

Judgment

1 By its action under Article 263 TFEU, the applicant, PT Indonesia Ruipu Nickel and Chrome Alloy (IRNC), seeks the annulment of Commission Implementing Regulation (EU) 2022/433 of 15 March 2022 imposing definitive countervailing duties on imports of stainless steel cold-rolled flat products originating in India and Indonesia and amending Implementing Regulation (EU) 2021/2012 imposing a definitive anti-dumping duty and definitively collecting the provisional duty imposed on imports of stainless steel cold-rolled flat products originating in India and Indonesia (OJ 2022 L 88, p. 24; ‘the contested regulation’).

Background to the dispute

2 Following a complaint lodged on 4 January 2021 by Eurofer, European Steel Association, AISBL (‘Eurofer’) on behalf of the Union industry of stainless steel cold-rolled flat products within the meaning of Article 10(6) 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), as amended by Regulation (EU) 2018/825 of the European Parliament and of the Council of 30 May 2018 (OJ 2018 L 143, p. 1) and Commission Delegated Regulation (EU) 2020/1173 of 4 June 2020 (OJ 2020 L 259, p. 1) (‘the basic regulation’), the European Commission opened, on 17 February 2021, an anti-subsidy investigation with regard to imports of stainless steel cold-rolled flat products originating in India and Indonesia (OJ 2021 C 57, p. 16).

3 Before initiating the anti-subsidy investigation, the Commission invited the Indonesian Government to take part in consultations in accordance with Article 10(7) of the basic regulation. Those consultations took place on 15 February 2021, and on the same date the Indonesian Government submitted to the Commission a written version of its statements. However, no mutually agreed solution could be reached.

4 On 18 November 2021, the Commission imposed definitive anti-dumping duties and definitively collected provisional duties imposed on imports of stainless steel cold-rolled flat products originating in India and Indonesia in a separate anti-dumping investigation which had been initiated by a Notice of initiation published on 30 September 2020 (OJ 2020 C 322, p. 17; ‘the notice of initiation’).

5 The investigation of subsidisation and injury covered the period from 1 July 2019 to 30 June 2020. The examination of trends relevant for the assessment of injury covered the period from 1 January 2017 to the end of the investigation period, namely 30 June 2020.

6 In the notice of initiation, the Commission invited interested parties to contact it in order to participate in the investigation. In addition, it specifically informed, inter alia, the complainant, the Indonesian Government, known Indonesian exporting producers and known importers and users in the European Union about the initiation of the investigation, and invited them to participate. In the notice of initiation, the Commission also invited the Chinese Government to participate in the investigation as an interested party. By letter of 19 February 2021, the Chinese Government informed the Commission that it had registered as an interested party in the investigation. On 11 October 2021, the Commission sent the Chinese Government a request for information. However, without complying with the request, the Chinese Government submitted, on 21 October 2021, its comments on the request for information itself.

7 In the context of the investigation, the Commission proceeded with sampling in accordance with Article 27 of the basic regulation. The two sampled groups of exporting producers accounted for 71% of the estimated total volume of stainless steel cold-rolled flat products exported from Indonesia to the European Union during the investigation period.

8 The Commission sent questionnaires to, inter alia, the three sampled EU producers, the complainant, the one independent importer which had made itself known, the two sampled Indonesian exporting producers, including the applicant, who participated in the investigation, and the Indonesian Government. The questionnaire sent to the latter included a specific questionnaire for PT Indonesia Morowali Industrial Park (‘IMIP’), the management company in charge of implementing the bilateral cooperation in the Morowali industrial park, located in Bahodopi, in the Morowali Regency, Central Sulawesi Province on the island of Sulawesi (Indonesia) (‘the Morowali Park’).

9 Without prejudice to the application of Article 28 of the basic regulation, the Commission cross-checked remotely via videoconference the replies of the Indian Government and of the Indonesian Government to the questionnaire. In addition, the Commission carried out remote cross-checking of the exporting producers, including the applicant.

10 The Commission requested the Indonesian Government to provide certain information concerning the bilateral cooperation framework that it had set out with the Chinese Government and, in particular, the conditions under which the Morowali Park had been established and whether and to what extent that park and the financial assistance provided by the Chinese Government were part of the bilateral cooperation between the respective Governments of Indonesia and China.

11 The Commission sent a request for information to the Chinese Government in order to collect information that would allow it to have an overview of the financial sector in China, information relating to the China Banking and Regulatory Commission, and information about financial support, export guarantees and insurance in the context of the Morowali Park and Overseas Trade and Cooperation Zones. However, the Chinese Government refused to submit that information.

12 The Commission thus considered that it had not received crucial and necessary information relevant to that aspect of the investigation. Therefore, the Commission applied Article 28 of the basic regulation and relied on the facts available in that regard.

13 On 17 December 2021, the Commission informed all parties of the essential facts and considerations on the basis of which it intended to impose a definitive countervailing duty on imports of the product concerned. All parties were granted a period within which they could make comments thereon. On 21 January 2022, the interested parties received an additional final disclosure and were granted a period within which they could make comments thereon. The interested parties had an opportunity to request a hearing with the Commission and/or the Hearing Officer in trade proceedings.

14 On 15 March 2022, the Commission adopted the contested regulation.

15 The Commission concluded that the IRNC Group, consisting of the applicant and various companies which manufacture different types of steel products, which are also vertically integrated and provide upstream steel products to the applicant for the manufacture of stainless steel cold-rolled flat products, had benefited from countervailable subsidies. It follows from Article 1(2) of the contested regulation that exports by the applicant of the product concerned to the European Union were subject to countervailing duties of 21.4%.

Forms of order sought

16 The applicant claims that the Court should:

– annul the contested regulation;

– order the Commission to pay the costs.

17 The Commission, supported by Eurofer, contends that the Court should:

– dismiss the action as unfounded;

– order the applicant to pay the costs.

Law

18 In support of the action, the applicant puts forward three pleas in law, alleging, first, infringement of Article 2(a) and (b), Article 3(1)(a), Article 4(3) and (5) and Article 28 of the basic regulation, second, infringement of Article 3(2), Article 6(a), (b) and (d) and Article 15(1) and (2) of the basic regulation and, third, infringement of Article 7(2) and Article 15(1) and (2) of the basic regulation.

The first plea, alleging infringement of Article 2 (a) and (b), Article 3 (1)(a), Article 4 (3) and (5), and Article 28 of the basic regulation

19 The first plea is divided into two parts, the first alleging the application of an incorrect legal standard in the determination of countervailable subsidies, and the second alleging the misapplication of that standard.

20 However, in response to the measure of organisation of procedure of 5 December 2024, the applicant stated that it was withdrawing the first part of the first plea.

21 There is therefore no longer any need for the Court to rule on that part of the action.

22 By the second part of the first plea, the applicant claims that, even assuming that the Commission could attribute to the Indonesian Government the financial support granted to the applicant and its Chinese parent companies by the Chinese Government, it has not demonstrated that the Indonesian Government acknowledged and adopted that financial support as its own. It also disputes the Commission’s findings regarding the specificity of the subsidies and puts forward a number of arguments concerning the lack of a finding as to the existence of countervailable subsidies.

Preliminary observations

23 In the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the EU institutions enjoy broad discretion by reason of the complexity of the economic and political situations which they have to examine (see judgment of 14 December 2022, PT Pelita Agung Agrindustri and PT Permata Hijau Palm Oleo v Commission , T‑143/20, EU:T:2022:811, paragraph 24 and the case-law cited; judgment of 1 March 2023, Hengshi Egypt Fiberglass Fabrics and Jushi Egypt for Fiberglass Industry v Commission , T‑480/20, EU:T:2023:90, paragraph 36 (not published)).

24 That is the case with regard to factual situations of a legal and political nature in the countries concerned which the EU institutions must assess in order to determine whether a financial contribution provided in one country using funds originating from another country can be attributed to that latter country and whether the subsidy is specific (see, by analogy, judgment of 21 June 2023, Guangdong Haomei New Materials and Guangdong King Metal Light Alloy Technology v Commission , T‑326/21, EU:T:2023:347, paragraph 78).

25 The exercise of that discretion is not, however, excluded from judicial review. According to consistent case-law, in the context of such a review, the EU judicature will verify that the relevant procedural rules have been complied with, that the facts on which the choice is based have been accurately stated and that there has been no manifest error of appraisal or misuse of powers (judgments of 11 September 2014, Gold East Paper and Gold Huasheng Paper v Council , T‑444/11, EU:T:2014:773, paragraph 73, and of 1 March 2023, Hengshi Egypt Fiberglass Fabrics and Jushi Egypt for Fiberglass Industry v Commission , T‑480/20, EU:T:2023:90, paragraph 36 (not published)).

26 The General Court’s review of the evidence on which the EU institutions based their findings does not constitute a new assessment of the facts replacing that made by the institutions. That review does not encroach on the broad discretion of those institutions in the field of commercial policy, but is restricted to showing whether that evidence was able to support the conclusions they reached. The Court must therefore not only verify that the evidence put forward is factually accurate, reliable and consistent, but also ascertain whether that evidence contained all the relevant information which had to be taken into account in order to assess a complex situation and whether it was capable of substantiating the conclusions reached (judgment of 18 October 2018, Gul Ahmed Textile Mills v Council , C‑100/17 P, EU:C:2018:842, paragraph 64).

27 The EU judicature has stated that a manifest error may be established by evidence which renders implausible the Commission’s assessment of the facts in its decision. By contrast, arguments alleging manifest errors must be rejected if, despite the evidence adduced by the applicants, the contested assessment does not appear to be vitiated by any such error (judgment of 7 May 2020, BTB Holding Investments and Duferco Participations Holding v Commission , C‑148/19 P, EU:C:2020:354, paragraph 72; also see, to that effect, judgments of 1 March 2023, Hengshi Egypt Fiberglass Fabrics and Jushi Egypt for Fiberglass Industry v Commission , T‑480/20, EU:T:2023:90, paragraph 37 (not published), and of 21 June 2023, Guangdong Haomei New Materials and Guangdong King Metal Light Alloy Technology v Commission , T‑326/21, EU:T:2023:347, paragraph 235 (not published)).

28 Without prejudice to that review of plausibility, it is not the Court’s role to substitute its assessment of complex facts for that made by the institution which adopted the decision. As a result, a plea alleging a manifest error of assessment must be rejected if, despite the evidence adduced by the applicant, the contested assessment may still be accepted as true or valid (see judgment of 25 November 2020, BMC v Clean Sky 2 Joint Undertaking , T‑71/19, not published, EU:T:2020:567, paragraph 76 and the case-law cited; judgment of 29 March 2023, Universität Bremen v REA , T‑660/19 RENV, not published, EU:T:2023:170, paragraph 36).

29 It is also apparent from settled case-law that the provisions of an international agreement to which the European Union is a party can be relied upon in support of an action for the annulment of an act of secondary EU legislation, of a plea that such an act is invalid or of an action for compensation only if, first, the nature and the broad logic of that international agreement do not preclude this and, second, the provisions of that international agreement which are relied upon appear, as regards their content, to be unconditional and sufficiently precise (see 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 56 and the case-law cited).

30 However, the Court of Justice has repeatedly held that, taking account of their nature and purpose, the Agreement establishing the World Trade Organization (WTO) (OJ 1994 L 336, p. 3) and the agreements listed in Annexes 1 to 4 to that agreement do not, in principle, constitute rules in the light of which the EU judicature is to review the legality of acts of secondary EU legislation. Therefore, the Agreement on Subsidies and Countervailing Measures (OJ 1994 L 336, p. 156; ‘the SCM Agreement’), which is contained in Annex 1A to the Agreement establishing the WTO, does not, in principle, constitute such a rule (see 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, paragraphs 57 and 58 and the case-law cited).

31 That said, in two exceptional situations, demonstrating the EU legislature’s intention to limit its discretion in the application of the WTO rules, the EU judicature is to review the legality of an act of secondary EU legislation, or of the measures implementing, in the light of the Agreement establishing the WTO or the agreements listed in Annexes 1 to 4 to that agreement. The first such situation is where the European Union intended to implement, in that act, a particular obligation assumed in the context of those WTO agreements, and the second is where that act refers explicitly to specific provisions of those agreements (see 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 59 and the case-law cited).

32 As is apparent from the case-law of the Court of Justice, any intention on the part of the European Union to implement a particular obligation assumed in the context of the agreements in question is distinct from the duty of every WTO member to ensure, within the framework of its internal legal order and throughout its territory, compliance with obligations under WTO law. That intention and the particular obligation to which it relates must, therefore, be apparent from a specific provision of the act of secondary EU legislation concerned in a given case (see 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 60 and the case-law cited).

33 In the present case, it must be stated, first of all, that none of the provisions of the basic regulation on which the applicant relies in the context of the present plea, and more generally in the context of its action, reveals any intention on the part of the EU legislature to implement, in that act, a particular obligation assumed in the context of the SCM Agreement or, more broadly, the Agreement establishing the WTO and the agreements in Annexes 1 to 4 thereto (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 61 and the case-law cited).

34 Next, none of those provisions refers expressly to the specific provisions of the Agreement establishing the WTO and the agreements in Annexes 1 to 4 thereto (see 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 62 and the case-law cited).

35 Lastly, while it is true that recital 3 of the basic regulation states that it is appropriate that ‘the language of [the SCM Agreement] should be reflected in [EU] legislation to the best extent possible’, that expression must be understood as meaning that, although the EU legislature intended to implement the provisions of that agreement when it adopted that regulation, nonetheless it did not intend to make that agreement a standard by reference to which the legality of measures of secondary EU legislation could be reviewed (see 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 63 and the case-law cited).

36 Nevertheless, it is apparent from settled case-law that the primacy of international agreements concluded by the European Union over measures of secondary EU legislation requires that the latter be interpreted, so far as possible, in a manner consistent with those agreements, in particular where such acts are intended to implement such agreements, in so far as their provisions are substantially the same. Furthermore, that interpretation must be given, so far as possible, in accordance with the relevant rules and principles of general international law, observance of which is required of the European Union in the exercise of its powers when adopting those measures (see 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 65 and the case-law cited).

37 In particular, the general principle of international law that treaty obligations should be observed and performed in good faith ( pacta sunt servanda ), enshrined in Article 26 of the Vienna Convention on the Law of Treaties of 23 May 1969 ( United Nations Treaty Series , Vol. 1155, p. 331), implies that the EU judicature must, for the purpose of interpreting the Agreement establishing the WTO and the agreements in Annexes 1 to 4 thereto, take account of the interpretation of those agreements adopted by the Dispute Settlement Body (DSB) of the WTO. In the absence of such an interpretation, it is for the EU judicature alone to interpret those agreements in accordance with customary rules of interpretation of international law that are binding on the European Union (see 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 66 and the case-law cited).

38 Thus, it is apparent from the case-law that the provisions of the basic regulation must, so far as possible, be interpreted in the light of the corresponding provisions of the SCM Agreement in Annex 1A to the Agreement establishing the WTO (judgments of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission , T‑300/16, EU:T:2019:235, paragraph 101; of 1 March 2023, Hengshi Egypt Fiberglass Fabrics and Jushi Egypt for Fiberglass Industry v Commission , T‑480/20, EU:T:2023:90, paragraph 100; and of 1 March 2023, Jushi Egypt for Fiberglass Industry v Commission , T‑540/20, EU:T:2023:91, paragraph 67).

39 In the present case, the wording of Article 3(1), Article 4(3) and (5) and the first subparagraph of Article 28(1) of the basic regulation is substantially the same, in many respects, as that of Article 1, Article 2(2) and (4) and Article 12(7) of the SCM Agreement, but contains differences which must be taken into consideration It is therefore important to ensure, so far as possible, that the interpretation of those provisions is consistent with the corresponding articles of that agreement or, as regards the aspects on which those provisions differ from the corresponding articles of that agreement, that it does not run counter to the European Union’s obligations under the WTO (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 67 and the case-law cited).

40 Furthermore, in order for the obligation to interpret secondary EU legislation in conformity with an international agreement that is binding on the European Union to apply, it is not necessary for that agreement to satisfy the conditions for having direct effect in EU law, as set out in paragraph 29 above (judgment of 8 November 2022, Deutsche Umwelthilfe (Approval of motor vehicles) , C‑873/19, EU:C:2022:857, paragraph 66).

41 However, the requirement to interpret secondary EU legislation in a manner consistent with an international agreement presupposes hermeneutic consistency between the different provisions and applies only ‘in so far as is possible’ (Opinion of Advocate General Mengozzi in Council v Growth Energy and Renewable Fuels Association , C‑465/16 P, EU:C:2018:794, paragraph 197).

42 That means that the rule of secondary EU legislation to be interpreted must be open to several possible interpretations. However, where the meaning of the provision is unequivocal and conflicts with the higher-ranking provision of international law, it will not be possible to interpret it in a manner consistent with the provision of international law, since it is only by construing it contra legem – which is tantamount to depriving it of its legislative substance – that it possible to achieve an outcome which is compatible with that agreement. In such situations, the interpretation of the rule of secondary EU legislation must be determined without regard to the rule of international law (see Opinion of Advocate General Mengozzi in Council v Growth Energy and Renewable Fuels Association , C‑465/16 P, EU:C:2018:794, paragraph 198 and the case-law cited).

43 It is in the light of those principles that the applicant’s arguments must be assessed.

44 The second part of the first plea is, in essence, divided into eight complaints, the first alleging, in essence, infringement of Article 11 of the Draft articles on Responsibility of States for Internationally Wrongful Acts, drawn up by the United Nations International Law Commission and of which the General Assembly of that organisation took note by Resolution 56/83 of 12 December 2001 (‘the ILC articles’), the second, third and fourth alleging an incorrect assessment of the facts, the fifth alleging that the Indonesian Government acknowledged responsibility only for its own measures to encourage investment in Indonesia, the sixth alleging infringement of Article 28 of the basic regulation, the seventh alleging infringement of Article 4(3) and (5) of that regulation, on account of the alleged lack of findings on specificity, and the eighth alleging failure to make findings with respect to the subsidies received in the form of preferential financing.

The first complaint, alleging, in essence, infringement of Article 11 of the ILC articles

45 First, the applicant is of the view that the Commission did not base the attribution to the Indonesian Government of the financial support granted by the Chinese Government to the applicant and its Chinese parent companies on Article 8 of the ILC articles, but only on Article 11 of those articles. In its view, the question for the Court is whether the Commission correctly established the existence of a subsidy attributable to the Indonesian Government under that Article 11.

46 The act of acknowledgement and adoption must, according to paragraphs 4 and 8 of the commentary on Article 11 of the ILC articles, be clear, unequivocal and unqualified. It follows from paragraph 6 of that commentary that the expression ‘acknowledges and adopts the conduct in question as its own’ is intended to distinguish between cases in which the State acknowledges and adopts that conduct and cases where it merely acknowledges the factual existence of conduct or expresses its verbal approval of it. According to that commentary, the word ‘adopt’ carries with it the idea that the State’s intention to accept responsibility for conduct which is not otherwise attributable to it is clearly indicated.

47 Second, referring to paragraph 5 of the commentary on Article 11 of the ILC articles, the applicant claims that the Commission, in recital 649 of the contested regulation, wrongly considered that it was sufficient for the State of origin or export to have been aware of and to have consented to the conduct in question for it to be possible to classify the conduct as ‘acknowledged and adopted’.

48 Third, the contested regulation does not contain any evidence to show that the Indonesian Government clearly indicates that it accepts responsibility for the subsidies granted by the Chinese Government, and clearly and unequivocally acknowledges them as its own conduct.

49 The Commission and Eurofer dispute the applicant’s arguments.

50 In that regard, the Court of Justice has held that Article 2(a) and (b) and Article 3(1)(a) of the basic regulation must be interpreted, in the light of their wording, the context in which they occur and the objective pursued by that regulation, as allowing the Commission to apply the legal classification of ‘subsidy’ to a financial contribution coming from, in whole or in part, the government of a third country other than the country of origin or export of a given product, where it is shown that that financial contribution may be considered to have been granted by the government of that country of origin or export, having regard to its own conduct, consisting in either formally granting that financial contribution to one or more persons or undertakings specified by the government of the country of origin or the country of export of a given product, or allowing them in practice to benefit from it. That may be the case, in particular, where the establishment of legislation, the adoption of a decision, the grant of an authorisation or the use of any other measure, by a WTO member, is necessary in order to enable that undertaking or those undertakings to obtain, in its territory, a financial contribution from that other member, whether that need is legal or arises from the fact that that other member has, in practice, made entitlement to that financial contribution subject to such legislation, decision, authorisation or other measure. In both cases, that conduct must have played a decisive role in the allocation of such a financial contribution (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, paragraphs 75, 86 and 94).

51 By contrast, those provisions contain no sign or indication that require or permit the inference that the existence of a subsidy must have such conduct as its sole origin (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 76).

52 Furthermore, the Court of Justice has found that that interpretation does not run counter to the obligations of the European Union arising from the terms of the SCM Agreement, understood in their context and in the light of the main object and purpose of that agreement, which are the strengthening and improvement of multilateral discipline in the field of subsidies. They encourage preference to be given to an interpretation of the terms of that agreement, and more particularly of the concept of a ‘subsidy granted by a government’, which takes account of the increased internationalisation of undertakings participating in world trade and of the support, that is sometimes decisive, from which they may benefit in that context, in the form of financial contributions which are granted as a result of assistance or the action of the governments of several member countries of the WTO (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, paragraphs 89 to 99).

53 In the present case, the Commission, in the contested regulation, fully satisfied the criteria referred to in paragraphs 50 to 52 above in order to classify the preferential financing, originating from the Chinese Government, as a ‘subsidy’. It presented several economic and administrative measures adopted by the Indonesian Government, which were necessary in order for the Chinese Government to grant that preferential financing. Finally, it concluded in recital 661 of that regulation that, ‘from the Indonesian perspective, the objective was to induce China to bring in investments, know-how, and capital in order to develop the whole value chain of the stainless steel industry and thus maximise the added value of the large nickel ore reserves for the country’ and that ‘Indonesia was unable to achieve this objective on its own and thus needed Chinese cooperation and support’.

54 In the first place, it is apparent from the contested regulation that the Indonesian Government provided the steel industry with nickel ore for less than adequate remuneration. In order to do so, it in particular established the obligation to process that ore in Indonesia (recitals 401 to 404 of the contested regulation), export restrictions on that ore (recitals 405 to 413 of that regulation), the obligation to transfer shares in the mining companies to Indonesian parties (recitals 425 to 434 of the contested regulation) and created a price-setting mechanism.

55 Specifically, it follows in particular from recitals 308, 309, 544, 661 and 662 of the contested regulation that, before the adoption of Indonesian Law No. 4 of 2009 on Mineral and Coal Mining (‘the 2009 Law’) requiring nickel ore to be processed in Indonesia, Indonesia was one of the largest producers and exporters of nickel ore, mainly to China, since Indonesian nickel ore was suitable for the Chinese technology used to manufacture nickel pig iron.

56 The Commission concluded, in particular in recitals 310, 317, 401 to 404 and 545 of the contested regulation, that, by adopting the 2009 Law, the Indonesian Government decided to increase the domestic added value by promoting the domestic processing of minerals, including nickel ore, mainly by means of a domestic processing obligation. According to the Commission, the Indonesian Government also decided to introduce export restrictions after a five-year grace period, intended to prepare the mining industry for the obligation to process in Indonesia and enable companies to build the purification facilities necessary to absorb the nickel ore supply (recitals 309, 405 to 413 and 545 of the contested regulation).

57 Recitals 310, 311, 315 and 316 of the contested regulation state that Indonesia, wishing to increase the domestic added value generated by the nickel ore reserves, nevertheless had substantial financing requirements for setting up smelters and the downstream industries, and a lack of know-how and technology to produce stainless steel from nickel pig iron that matched the quality of nickel ore extracted in Indonesia.

58 It follows in particular from recitals 319 and 405 to 413 of the contested regulation that, given the failure to achieve the objective of creating processing capacities in Indonesia within the prescribed time limit, the Indonesian Government, on 11 January 2014, banned the export of nickel ore from Indonesia through the enactment of several regulations. As is shown in recitals 320 and 321 of the contested regulation, in 2017 the Indonesian Government slightly relaxed the ban, subject to certain conditions, in respect of nickel ore with a nickel content of less than 1.7%, only to reimpose it in 2020. Several smelters for that ore were thus established in Indonesia and domestic demand for the ore in question increased. The Indonesian Government also kept the domestic price significantly below international prices in order to benefit the Indonesian smelters and stainless steel producers.

59 According to Tables 1 and 2, in recitals 309 and 318 of the contested regulation, respectively, exports of Indonesian nickel ore to China increased significantly during the five-year grace period. That circumstance suggests that the Commission’s finding in recital 662 of that regulation – that the Chinese stainless steel industry had relied for some time, or as long as that industry could, on imports of Indonesian nickel ore, which in terms of quality matched perfectly with the technology and production processes of its industry, and that the ban on exports of nickel ore put Chinese stainless steel production at risk – is plausible.

60 It is also apparent from Tables 2 and 3 in recitals 318 and 321, respectively, of the contested regulation, that exports of nickel ore fell considerably in 2014 when the nickel export ban became effective, and ceased entirely in 2015 and 2016.

61 As the Commission and Eurofer correctly point out, there is a striking temporal correlation between the restrictions on nickel ore exports and the development of the stainless steel industry in Indonesia, particularly in the Morowali Park. The growth of the downstream nickel processing industry between 2014 and 2018 was considerable, as observed by the Commission and Eurofer and as is apparent in particular from recital 547 of the contested regulation. It is also apparent from Table 3 in recital 321 of that regulation that the production of nickel ore really took off from the time the export ban on that raw material took effect and that, despite a resumption of exports between 2017 and 2019, a significant proportion of that production was intended for internal consumption, that is to say, mainly for the production of stainless steel. Indonesia, which until 2016 had almost no stainless steel production, emerged as one of the major producers of that product in the world. Indonesian capacity increased progressively from 7.81 million tonnes in 2014, when the domestic processing obligation and the export restrictions entered into force, to 61 million tonnes in 2019. The fact that the Indonesian Government allowed Chinese companies to exploit nickel resources despite its policy that entails keeping mining resources within Indonesian ownership demonstrates the exceptional strategic importance of the creation of its own nickel processing industry and the Indonesian Government’s inability to achieve that objective without foreign support. As Eurofer correctly states, the export restrictions would not have had an effect without the development of that industry through Chinese support, but rather would have caused economic damage to Indonesia.

62 The restrictions on the export of nickel ore crystallised a mutual interdependence between Indonesia, which lacked the financial means to develop a stainless steel industry, and China, which needed Indonesian quality nickel resources.

63 In the second place, Indonesia engaged in close cooperation with the Chinese Government, which resulted, inter alia, in the establishment of the Morowali Park, in order to create a positive investment climate for the nickel processing industry in Indonesia.

64 It follows in particular from recitals 582, 654, 661, 668, 670 and 673 of the contested regulation that the Indonesian Government proactively induced the Chinese Government to provide financial support to companies in Indonesia by specifically contributing to the creation and development of the stainless steel industry in Indonesia through the Morowali Park. That support was a condition imposed by Indonesia for giving Chinese companies access to its large reserves of nickel ore suitable for their production process.

65 First, it is stated, in recitals 312 and 568 of the contested regulation, that, as early as 2005, Indonesia undertook to build a ‘conducive investment climate’ for Chinese investors and undertook in 2012 to continue to do so. It is also apparent from recitals 313, 548, 549 and 562 to 581 of the contested regulation that several bilateral agreements concluded between 2005 and 2018, implemented by Indonesian legislation, were intended to strengthen the strategic partnership between Indonesia and China, particularly in the mining sector, and sought to encourage Chinese investment in resource-based industries in Indonesia, including mining.

66 Second, it follows in particular from recitals 586 and 587 of the contested regulation that the Indonesian and Chinese Governments agreed to encourage Chinese financial institutions to support financing for investment in Indonesia. According to recitals 548, 577, 591 and 610 of that regulation, on 27 March 2015, the Chinese and Indonesian Governments released the ‘Joint Statement on strengthening comprehensive strategic partnership between [China] and Indonesia’ and agreed, on the one hand, that Indonesia ‘[would] introduce preferential policies for the industrial parks to provide safeguard and facilitation for more Chinese enterprises to enter the park in accordance with the Indonesian laws and regulations, so as to accelerate the development of the Industrial Parks’, and, on the other hand, that China ‘[would] continue to provide financing support for Indonesia’s infrastructure construction and large projects through bilateral and multilateral financial channels.’ It also follows from recital 576 of that regulation that the Indonesian and Chinese Governments had specifically agreed to ‘encourage Chinese metallurgical producers to make direct investments in Indonesia, to utilise Indonesia’s natural resources and to invest in the form of integrated metallurgical industrial parks [in order] to help [improve] its metallurgical industry chain and increase the value added of mineral projects’.

67 Third, the Commission took into consideration the close cooperation in the Morowali Park.

68 According to, in particular, recitals 324, 616, 656, 673 and 710 of the contested regulation, the Morowali Industrial Park and IMIP, which is responsible for implementing bilateral cooperation within that park, were formally recognised by the Indonesian Government as a national strategic project in 2016 and by the Chinese Government as an overseas investment zone project under the Chinese ‘One Belt, One Road’ initiative. According to recitals 598, 599 and 615 to 620 of that regulation, the Morowali Park benefited not only from the status of a recognised industrial estate subject to the preferential Indonesian domestic rules for industrial estates, but also from preferential Chinese rules.

69 In recital 611 of the contested regulation, the Commission found that the Indonesian Government had introduced Regulation No 142/2015 on Industrial Estates to replace an earlier regulation from 2009, so as to bring it in line with the bilateral Joint Statement on Strengthening Comprehensive Strategic Partnership between the People’s Republic of China and Indonesia, delivered in Beijing on 26 March 2015, and with the Agreement between the Governments of the People’s Republic of China and the Government of the Republic of Indonesia on the Indonesia-China Integrated Industrial Parks, signed in Jakarta on 2 October 2013, and had set out therein the main incentives for companies that set up in those Industrial Estates, such as the IRNC Group.

70 In addition, it is apparent from recitals 636 to 642 of the contested regulation that a number of bilateral administrative bodies in charge of the implementation of the cooperation between Indonesia and China were established, including for the Morowali Park.

71 The importance of the industrial parks is also demonstrated by the bilateral documents. As shown in recital 575 of the contested regulation, under the Indonesia-China Programme, the key areas of cooperation identified by the respective governments included mining, the metallurgical industry and industrial parks (including special economic zones). The Indonesian and Chinese Governments expressly agreed to ‘collaborating in the exploration, refineries and processing of mineral resources, including … nickel’, ‘expediting and facilitating bilateral [cooperation] on mining and metallurgical projects’, ‘expediting and facilitating bilateral cooperative on mining and metallurgical projects’, ‘promoting the development of mineral resources by building dedicated industrial parks and zones in the six economic corridors’ and ‘collaborating in the development of mineral resources in Indonesia’. The Commission then took into account, in recital 576 of the contested regulation, that the governments of the two countries had agreed on the promotion of those industrial parks, by ‘[encouraging Chinese] enterprises to invest in Indonesia[n] industrial parks’ and by ‘[facilitating] and [providing] policy support in the development of industrial parks’.

72 As recital 576 of the contested regulation shows, in the Indonesia-China Programme, addressing the Metallurgical Industry, the Indonesian and Chinese Governments had specifically agreed to ‘encourage Chinese metallurgical producers to make direct investments in Indonesia, to utilise Indonesia’s natural resources and to invest in the form of integrated metallurgical industrial parks [in order] to help [improve] its metallurgical industry chain and increase the value added of mineral projects’.

73 Moreover, as is apparent from recital 632 of the contested regulation, the monitoring of the implementation of governmental policies is ensured by the Indonesian Regulations on Industrial Estates which provide for a licensing system and refer in particular to a licence granted by the Indonesian Government to develop and manage an industrial estate and to a list of administrative sanctions and the procedure to be followed in the event that the managing companies do not comply with the relevant regulation.

74 As is shown by recital 619 of the contested regulation, overseas cooperation zones have become a vehicle to implement the ‘One Belt, One Road’ Chinese initiative and international production capacity cooperation. In that regard, the Commission took the view, in recital 788 of that regulation, that the fact that the Morowali Park was part of the broader context of the Chinese ‘going out’ policy was confirmed by the Chairman of the Tsingshan Holding Group, who stated that ‘Tsingshan Industrial Park [was] the biggest and most successful Chinese investment in Indonesia and [would] accommodate the production capacity transferred from China’ and that ‘[it was] important for the implementation of the [Chinese] Belt and Road initiative’.

75 In the third place, as follows in particular from recitals 653 and 723 and Section 4.8 of the contested regulation, the Indonesian Government provided the applicant with land for less than adequate remuneration. That measure was particularly necessary in order to enable steel plants to be established in the Morowali Park.

76 In the fourth place, as is apparent in particular from recitals 611, 620 and 723, and from Section 4.12 of the contested regulation, the applicant received tax incentives from the Indonesian Government to operate in the Morowali Park.

77 In the fifth place, it is no less important that the Indonesian Government put in place administrative facilities to support the applicant’s establishment in the Morowali Park. That assistance, referred to in particular in recitals 620, 675 and 740 of the contested regulation, consisted of the application of a special regime pertaining to industrial estates, which provided for various advantages and specific support from that government, such as by simplifying the grant of licences and authorisations to set up within the park, facilitating the procurement of land and providing infrastructure or the possibility of building plants without building permits.

78 In the sixth place, the Commission clearly showed that the measures put in place by the Indonesian Government had had the objective of attracting Chinese preferential financing in order to derive, ultimately, a greater added value from national resources in nickel ore and that those measures were necessary for that purpose, as is apparent in particular from recitals 321, 330, 543 to 547, 574 to 577, 580, 581, 594, 604 to 607, 610, 654, 668, 670, 675, 678, 690 and 703 of the contested regulation.

79 It follows that the policy measures put in place by the Indonesian Government sought, as the Commission explained in the contested regulation in a comprehensible and plausible manner, to attract foreign investments in the nickel ore processing industry in Indonesia. Those policies materialised in the form, in particular, of a regulatory, strategic and political framework conducive to encouraging investments (recital 581 of the contested regulation), as well as in the form of the provision of nickel ore and land for less than adequate remuneration, other subsidies of Indonesian origin and cooperation within the Morowali Park. The concordance between, on the one hand, the export restrictions and the investment climate created by the bilateral agreements, particularly in that park, and, on the other hand, the development of the steel processing industry confirms that conclusion (see paragraph 61 above).

80 The Chinese and Indonesian Governments therefore worked closely together to establish the Morowali Park as a zone with special legal and economic features which enabled the Chinese Government to confer directly all the facilities inherent in China’s ‘Belt and Road’ initiative on the Chinese undertakings established in that zone (recitals 577, 608 and 610 of the contested regulation).

81 The Commission’s findings demonstrate a more active role on the part of the Indonesian Government than mere acts of encouragement. China’s involvement was neither involuntary nor a mere by-product of Indonesian governmental regulation. Rather, it was a result intended by the overall strategy implemented by the Indonesian Government. That strategy amounted to conferring on China the responsibility for carrying out a function which usually lies with the government of the country of origin or export, that is to say, to grant subsidies in order to encourage the development of an industry within its territory.

82 The Commission explicitly found, in particular in recitals 594, 646, 650, 654, 661, 668, 670, 673 and 678 of the contested regulation, that the Indonesian Government had ‘actively sought’ the preferential financial support granted by the Chinese Government and that it had adopted and acknowledged it as its own.

83 The fact that the Indonesian Government, through the set of measures it implemented, induced the Chinese Government to provide such incentives and the fact that the respective measures are interdependent (see in particular recital 581 of the contested regulation) necessarily mean that the Indonesian Government has, in practice, enabled the applicant to benefit from them, leading to the attribution of that support to the Indonesian Government.

84 Therefore, in the light of the case-law of the Court of Justice cited in paragraphs 50 to 52 above, the Commission correctly interpreted the basic regulation in the light of the SCM Agreement.

85 Consequently, the applicant’s arguments to the effect that it is only the criteria laid down in Article 11 of the ILC articles that must be taken into account when assessing whether the Commission could attribute the preferential financing to Indonesia must be rejected.

86 Indeed, the applicable provisions remain Article 2(b) and Article 3(1)(a)(i) of the basic regulation, which are to be interpreted, as far as possible, in the light of international law (see, in particular, recitals 696, 697 and 700 of the contested regulation). Since the attribution of preferential financing originating in China to the Indonesian Government is already possible on the basis of the basic regulation alone, even though the Commission interpreted it by also taking into account the SCM Agreement and Article 11 of the ILC articles, the complaint alleging infringement of the latter provision is ineffective. It is sufficient that the Commission has demonstrated that Indonesia actively sought that financing and adopted a set of measures to ensure that it was granted by the Chinese Government; as a result, the Commission correctly found that that financing could be attributed to Indonesia.

87 The present complaint must therefore be rejected.

The second complaint, alleging incorrect assessment of the facts in that the examples provided by the Commission show nothing more than normal bilateral investment cooperation

88 The applicant claims that the examples provided by the Commission show nothing more than bilateral investment cooperation between economic partners, by means of which the Indonesian Government was trying to attract Chinese investment. In its view, such cooperation is very common and inherently remote from the legal standard defended by the Commission according to which it is relevant to determine whether the Indonesian Government proactively sought, acknowledged and adopted as its own the subsidies granted by the Chinese Government. Moreover, there is no evidence of ‘clear acceptance of responsibility’.

89 The Commission and Eurofer dispute the applicant’s arguments.

90 The present complaint cannot call into question the attribution of the Chinese preferential financing to the Indonesian Government. The alleged habitual nature of given governmental conduct is not a legal criterion laid down by the provisions relevant to the present case for determining whether it is possible to impose countervailing measures in that regard.

91 In any event, taking into consideration all the evidence, the Commission took the view that the Indonesian Government had actively sought the preferential financial support granted by the Chinese Government, in particular by ensuring the supply of nickel ore to the steel industry for less than adequate remuneration’, by engaging in close collaboration with the Chinese Government (which resulted, inter alia, in the establishment of the Morowali Park) in order to create a positive investment climate for the nickel processing industry in Indonesia, by providing the applicant with land for less than adequate remuneration and by offering the applicant tax incentives or administrative facilities to operate in the Morowali Park. The Commission highlighted, in particular, the cooperation in the Morowali Park, which went well beyond normal or customary economic cooperation (recital 706 of the contested regulation). It also showed that the measures put in place by the Indonesian Government had had the objective of attracting Chinese preferential financing in order to derive, ultimately, a greater added value from national resources in nickel ore and that those measures were necessary for that purpose. The Commission was thus able to conclude that the Indonesian Government had adopted and acknowledged the Chinese preferential financing as its own. All of those factors necessarily mean that the Indonesian Government, in practice, enabled the applicant to benefit from Chinese financial support, which makes it possible to attribute that support to that government.

92 The applicant merely cited examples of EU cooperation with China in general, without adducing facts which would support the conclusion that that cooperation is as close as the cooperation that exists in the present case between China and Indonesia in the Morowali Park.

93 The present complaint must therefore be rejected.

The third complaint, alleging incorrect assessment of the facts in so far as the Commission (i) found that the imposition of export restrictions on nickel ore left the Chinese Government no other choice than to grant preferential financing and (ii) disregarded the fact that Indonesia was not capable of compelling China to comply with its commitments

94 The applicant maintains, in essence, that nickel and stainless steel are only a tiny part of the broad range of sectors covered by the bilateral cooperation between Indonesia and China, where the restrictions imposed by Indonesia on exports of nickel ore are a relative non-issue, with the result that the Commission’s assertion that the bilateral relationship between those countries could be spurred thereby is incorrect. Indeed, China had sufficient access to nickel ore and the Indonesian export restrictions placed no pressure or inducement on it.

95 According to the applicant, although the Commission states, in recital 662 of the contested regulation, that, after Indonesia had imposed its export restrictions on nickel, the Chinese stainless steel producers’ attempt to replace Indonesian nickel with nickel from the Philippines failed, with the result that the Chinese Government ‘had little choice’ but to capitulate to Indonesia’s demands, it states, in recital 522 of that regulation, that, since Indonesian exports of nickel ore ceased in 2014, exports of nickel ore from the Philippines developed considerably, in particular to the main consumer market, namely China. In addition, China had ample access to that raw material from other sources, such as Russia, New Caledonia, Canada, Australia, China itself, Brazil, Cuba and the United States.

96 In its view, the Commission is also wrong to claim, in recital 642 of the contested regulation, that the Indonesian Government put in place a mechanism enabling it to monitor the Chinese Government and to ensure ‘that the [Chinese Government] complies with its commitments’, as though Indonesia had been capable of compelling China to comply with its commitments.

97 The Commission and Eurofer dispute the applicant’s arguments.

98 In that regard, the Commission’s conclusion that, in essence, even the ‘small’ partner in a bilateral relationship may induce the ‘large’ partner to adopt certain conduct through its policy strategy is plausible. That conclusion is reinforced by the fact that the Indonesian Government paid a significant ‘price’ for that influence over the Chinese Government, in particular in terms of privileged access to Indonesia’s natural resources.

99 It is also necessary to reject the applicant’s argument that Chinese undertakings, encouraged by China’s policy, invest all over the world in countries with natural resources, irrespective of a target country’s export restriction policy. Even if that were generally the case, it is also clear that the actual investment depends on the benefits that the Chinese Government hopes to derive from it, or the disadvantages it seeks to avoid. Therefore, the Commission has shown in a comprehensible and plausible manner, within the scope of its broad discretion, that the Indonesian Government, by creating appropriate incentives, positively influenced, or even convinced, the Chinese Government to grant the preferential financing in question.

100 Furthermore, the applicant’s argument that China could have replaced Indonesian nickel with nickel from the Philippines or from several other sources of nickel ore around the world must be rejected. First, the applicant has not challenged the finding of the Commission and Eurofer that Chinese importers stockpiled Indonesian nickel ore during the five-year grace period. That finding is also apparent from Tables 1 and 2, set out in recitals 309 and 318 of the contested regulation, which show a very significant increase in imports of nickel ore during the grace period, without that increase being explained by a proportional increase in China’s annual stainless steel production. In any event, whether that increase in imports of nickel ore was due to Chinese producers stockpiling or to an increase in their stainless steel production, it shows that the Chinese industry needed that ore. Second, the Commission explained in a comprehensible manner, in particular in recitals 309, 582 and 662 of the contested regulation, the conclusion that it was specifically Indonesian nickel that was particularly suitable for Chinese steel production. Furthermore, it found that the nickel content of the Philippine ore was different from that of Indonesian nickel ore, as is apparent from recital 531 of the contested regulation. Those circumstances do not, however, take away from the fact that the price of Philippine nickel ore was the most appropriate benchmark for the price of Indonesian nickel ore. Third, Indonesia, which has an important geographical location, has at the same time, as indicated in recitals 321 and 581 of the contested regulation, kept prices on the domestic market significantly below international prices, in particular prices in the Philippines, which made its nickel ore particularly attractive. Fourth, the creation of a steel processing industry in Indonesia with the help of Chinese funds in the period that followed the introduction of the export restrictions shows that China did in fact respond to those restrictions, seeking to ensure that it did not lose access to Indonesian nickel resources. Fifth, Chinese investments in Indonesia are, moreover, part of the Chinese Belt and Road Initiative, which aims, inter alia, to invest in countries rich in raw materials, such as Indonesia, which actively maintains a regulatory, strategic and political framework conducive to encouraging projects to be implemented in specific parts of its own territory.

101 The present complaint must therefore be rejected.

The fourth complaint, alleging that the bilateral cooperation was not masterminded by the Indonesian Government

102 According to the applicant, the bilateral cooperation between the Indonesian and Chinese Governments is simply part of China’s Belt and Road Initiative. The Commission also consistently refers to that initiative, as well as to China’s ‘long-standing “going out” policy’.

103 The Commission and Eurofer dispute the applicant’s arguments.

104 In that regard, the question of which of the two States was the ‘driving force’ behind their cooperation is irrelevant for the purpose of determining whether the government of the country of origin or export adopted such conduct which in practice enabled the persons concerned to benefit from the financial contribution in question (see paragraph 50 above). In cases of cross-border financing, the effectiveness of EU trade defence measures must not depend on the initiative taken by one or other of the States involved in that financing. The attribution of that financing does not presuppose that all economic and political relations between China and Indonesia are ‘masterminded’ by the Indonesian Government. It is sufficient that the latter provided sufficient incentives for the Chinese Government to agree to grant preferential financing for the Morowali Park.

105 In any event, the Commission explained in a comprehensible and plausible manner, in particular in recitals 310 to 321 of the contested regulation, that, in essence, it was the Indonesian Government that had taken the initiative to approach their Chinese counterparts in order to benefit from the Chinese Belt and Road Initiative, with a view to developing its steel industry. That conclusion is corroborated, in particular, by the fact that the Indonesian Government also sought Japanese investment (recital 311 of the contested regulation and footnote 66 thereof).

106 The present complaint must therefore be rejected.

The fifth complaint, alleging that the Indonesian Government acknowledged responsibility only for its own measures to encourage investment in Indonesia

107 According to the applicant, the Indonesian Government encouraged investment in Indonesia, including in the Morowali Park, by providing its own support measures, not by adopting and taking responsibility for those of the Chinese Government, in accordance with paragraph 8 of the commentary on Article 11 of the ILC articles. In the reply, the applicant observes that it does not deny that the Indonesian Government acknowledged the Chinese Government’s conduct and that, like the government of any other developing country, it was happy to receive investments. However, the Commission failed to point to any evidence showing that the Indonesian Government also adopted that conduct as its own.

108 The Commission disputes the applicant’s arguments.

109 In that regard, as stated in the Court’s response to the first complaint of this part, the fact that the Indonesian Government actively requested and encouraged Chinese financial support by adopting such conduct, which in practice enabled the applicant to benefit from it, leads to the attribution of that support to the Indonesian Government.

110 That conclusion is not called into question by the fact that the Indonesian Government granted other subsidies at the same time.

111 The present complaint cannot therefore succeed.

The sixth complaint, alleging infringement of Article 28 of the basic regulation

112 The applicant submits that the Commission infringed Article 28 of the basic regulation in three respects.

113 In the first place, according to the applicant, the Commission wrongly applied Article 28 of the basic regulation to the Indonesian Government as regards the document signed by [ confidential ] ( 1 ) and [ confidential ] on 3 October 2013, in so far as that document was drawn up between private parties and the Indonesian Government did not have it in its possession.

114 In the second place, the applicant alleges that the Commission, in applying Article 28 of the basic regulation to the Indonesian Government, drew inferences from the failure to provide a list of priority projects under the bilateral cooperation between the Indonesian Government and the Chinese Government even though such a list does not exist.

115 In the third place, the applicant claims that the Commission cannot apply Article 28 of the basic regulation by reason of the conduct of the Chinese Government, when the investigation concerned Indonesia and Indonesian exporting producers. According to the applicant, the Commission even suggested that the Indonesian Government could have put pressure on China to cooperate.

116 The Commission and Eurofer dispute the applicant’s arguments.

117 Under Article 28(1) of the basic regulation, in cases in which any interested party refuses access to, or otherwise does not provide necessary information within the time limits provided for in that regulation, or significantly impedes the investigation, provisional or final findings, affirmative or negative, may be made on the basis of the facts available.

118 According to the case-law, Article 28 of the basic regulation authorises the institutions to use the facts available in order not to undermine the effectiveness of EU trade defence measures each time the EU institutions are faced with a refusal to cooperate or lack of cooperation in the context of an investigation, but does not require them to use the best facts available. It follows from this that the Commission’s broad discretion in the realm of measures to protect trade, in accordance with the case-law cited in paragraph 23 above, also applies where Article 28 of the basic regulation is to be applied (see judgments of 14 December 2022, PT Wilmar Bioenergi Indonesia and Others v Commission , T‑111/20, EU:T:2022:809, paragraph 167 and the case-law cited, and of 14 December 2022, PT Pelita Agung Agrindustri and PT Permata Hijau Palm Oleo v Commission , T‑143/20, EU:T:2022:811, paragraph 133 and the case-law cited).

119 As a preliminary point, the Commission submits that the applicant’s claims must therefore be rejected in application of Article 76(d) of the Rules of Procedure of the General Court, on the ground of lack of clarity. In its view, the applicant does not list the findings set out in the contested regulation which it disputes and does not explain how the alleged application of the facts available would vitiate those findings.

120 Under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, which is applicable to proceedings before the General Court by virtue of the first paragraph of Article 53 of that Statute, and pursuant to Article 76(d) of the Rules of Procedure, an application must contain the subject matter of the dispute, the pleas and arguments put forward and a summary of those pleas. That information must be sufficiently clear and precise to enable the defendant to prepare its defence and the General Court to rule on the action, if necessary without any further information. In order to guarantee legal certainty and the sound administration of justice, it is necessary, in order for an action to be admissible, that the essential matters of law and fact relied on are stated coherently and intelligibly in the application itself. The application must, accordingly, specify the nature of the grounds on which the action is based, with the result that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure. Similar requirements are called for where a submission is made in support of a plea in law (order of 11 March 2021, Techniplan v Commission , T‑426/20, not published, EU:T:2021:129, paragraph 19).

121 It follows that the applicant is required to set out in a sufficiently systematic manner the arguments relating to each plea which it puts forward, and the Court cannot be obliged, due to a lack of structure in the application or lack of rigour on the part of the applicant, to reconstruct the legal structure which is supposed to support a plea by bringing together various diffuse elements of the application, at the risk of reconstructing that plea by giving it a scope which it did not have in the mind of that party. To decide otherwise would be contrary to the principle of the sound administration of justice, to the principle that the subject matter of an action is delimited by the parties, and to the defendant’s rights of defence (order of 11 March 2021, Techniplan v Commission , T‑426/20, not published, EU:T:2021:129, paragraph 20).

122 In the present case, as regards the document in question (see paragraph 113 above), it is true that the applicant does not specify how resorting to the facts available led the Commission to an erroneous conclusion. It does, however, allege that that document is irrelevant to the conclusion that the Commission draws from it in recital 634 of the contested regulation, namely that IMIP’s mission was to implement the overarching policy objective of the Indonesian and Chinese Governments.

123 Although the claim in question thus satisfies the requirements of clarity laid down in Article 76(d) of the Rules of Procedure, it is nevertheless unfounded. It is in no way inconceivable that a document signed by two private parties, such as the document in question, reveals by its content that IMIP is in fact an entity intended not to implement a private entrepreneurial objective, but rather an objective of the Indonesian Government. Moreover, the applicant has not put forward any other evidence to demonstrate that that claim is well founded.

124 In any event, the Commission did not commit a manifest error of assessment in using the facts available. It is implausible that the Indonesian Government did not have a document which was signed by private parties in the presence of the Chinese and Indonesian Presidents, or that it was not, at least, informed in detail of its content.

125 Thus, the applicant’s claim concerning the document in question (see paragraph 113 above) must be rejected.

126 As regards the list in question (see paragraph 114 above), the Commission’s argument alleging a lack of clarity must also be rejected. Indeed, in the application, the applicant states that the Commission infers from the alleged failure to provide such a list, which does not exist, that the Morowali Park was also included in that list of priority projects under the bilateral cooperation.

127 Nevertheless, although the Indonesian Government states in paragraph 96 of its reply to the general disclosure document that the list at issue, referred to in paragraph 114 above, does not exist, since the discussions at the end of which such a list had to be drawn up had not yet taken place, there are indicia which suggest that it was at least at some stage of being drafted. It is apparent, first, in particular from recitals 571, 572, 609 and 655 of the contested regulation that, under Chapters I and III of the Indonesia-China Five-Year Development Program for Economic and Trade Cooperation, priority projects were intended to be the concrete expression of that programme, or the way in which it would materialise. The ‘principle [for the selection of those projects] should meet strategic interest and socioeconomic development needs of the two countries, be consistent with mid- and long-term planning for economic development of both countries, and fit the development plans of the enterprises involved’. Second, as is apparent from recital 577 of the contested regulation, it follows from the Joint Statement on strengthening comprehensive strategic partnership between China and Indonesia, published on 27 March 2015 by the governments of both countries, that ‘both sides pledged to actively implement the Five-Year Development Plan of China-Indonesia Economic and Trade Cooperation and to finalise the list of priority projects at an early date’. The use of the verb ‘finalise’ implies that, at the time of the publication of that statement, namely in 2015, that is, seven years before the adoption of the contested regulation, a draft list already existed, although it had not been finalised.

128 Eurofer is therefore correct in arguing that the Indonesian Government could have provided the Commission with at least a draft list of priority projects under the bilateral cooperation between the Indonesian and Chinese Governments. The Commission did not therefore commit a manifest error of assessment in finding that the Indonesian Government had not cooperated fully on this point and that the Morowali Park must have appeared on the list in question.

129 In any event, as is apparent from recital 710 of the contested regulation, it is undisputed that the Morowali Park was formally recognised as a special eligible project both in China under the Chinese Belt and Road Initiative, and in Indonesia as a National Strategic Project. Even if the Indonesian Government’s claim that there was no formal list of priority projects under the high-level economic dialogue were correct, that would not alter the conclusion that the Morowali project was formally recognised as a strategic project by the Indonesian and Chinese Governments in the context of their bilateral cooperation and that, as such, it was closely followed and implemented by the two governments on account of its importance. Against that background, investors in that park, like the applicant, were therefore beneficiaries of subsidies.

130 The applicant’s claim regarding the list in question, referred to in paragraph 114 above, must therefore be rejected.

131 As regards the conduct of the Chinese Government in question, the Commission is right to maintain that the applicant does not specify what findings it considers to be incorrect on account of the use of the facts available. Nor does the applicant specify exactly which of the facts available it considers to be incorrect. It is not sufficient for the applicant to claim that the Commission erred in relying on the facts available. The applicant must also show that, in making such an error, the Commission relied on an erroneous factual basis and that the conclusions it draws from it are also incorrect.

132 The Court is therefore not in a position to verify the applicant’s claims accurately and it is not for the Court to seek out and identify, in the annexes, the information which it may consider to form the basis of a party’s argument (see, by analogy, judgment of 28 February 2017, Yingli Energy (China) and Others v Council , T‑160/14, not published, EU:T:2017:125, paragraph 263).

133 The applicant’s claim concerning the conduct of the Chinese Government in question is therefore inadmissible.

134 In any event, it must be noted, first, that the first subparagraph of Article 28(1) of the basic regulation does not provide that the facts available may be used only in respect of the interested party which is refusing access to the necessary information, the wording of that provision being broad in that regard.

135 The Court has already held, in the context of the interpretation of Article 18(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 content of which is essentially identical to Article 28(1) of the basic regulation, applicable in the present case, that facts available may be applied to an interested party in order to remedy the non-cooperation of another interested party, namely a government of the country of production and export (judgment of 14 September 2022, Nevinnomysskiy Azot and NAK “Azot” v Commission , T‑865/19, not published, EU:T:2022:559, paragraphs 413 to 415). Although that judgment concerned a situation where the lack of cooperation was attributed to the government of the country in which the applicant was established, the solution adopted may be applied by analogy in the present case, even though the lack of cooperation is attributed to a country other than that in which the applicant is established. Indeed, China and Indonesia entered into close and extensive cooperation regarding the Morowali Park, each pursuing its own interests there, and the conduct of the Indonesian Government, in practice, enabled the applicant to benefit from Chinese financial support.

136 The need to guarantee the effectiveness of trade defence measures, recalled in paragraph 171 of the judgment of 14 December 2022, PT Wilmar Bioenergi Indonesia and Others v Commission (T‑111/20, EU:T:2022:809) (see also paragraph 118 above), also justifies, in circumstances such as those of the present case, the EU institutions being authorised to rely, on account of the lack of cooperation on the part of the Chinese Government, which is the source of the funds used in the context of the preferential financing, on the facts available and to draw conclusions therefrom, in particular as regards the applicant, being the beneficiary of those measures.

137 Second, the Commission correctly stated, in recitals 721 and 722 of the contested regulation, that, according to point 5.3 of the Notice of Initiation, it had expressly invited the Chinese Government to participate as an interested party, given the allegations contained in the complaint. By email of 19 February 2021, the Chinese Government requested to be registered with the investigation in order to have access to the file and explicitly confirmed that it was an interested party. The Commission noted that the Indonesian and Chinese Governments put in place several administrative mechanisms in the context of their bilateral cooperation, in particular in order to successfully implement the Morowali Park project, as explained in Section 4.5.6 of the contested regulation. Those cooperation mechanisms allowed, or would have allowed, the Indonesian Government to collect the requested information from the Chinese Government. The Commission was therefore not asking the Indonesian Government to use coercive means to collect the requested data from the Chinese Government, but rather gave the Chinese Government the opportunity to intervene and submit the relevant information from the very beginning of the investigation by treating it as an interested party. The fact that one of the parties involved in that bilateral cooperation, namely the Chinese Government, decided not to provide any information does not automatically mean that the other party to the bilateral cooperation, namely the Indonesian Government, should not be held responsible for that lack of cooperation with the Commission, or that it could benefit from it. In the context of that bilateral cooperation, one party cannot use the inaction of the other to claim that it fully cooperated in the investigation to the best of its abilities.

138 Accordingly, the applicant is not justified in claiming that the Indonesian Government may be exonerated for failing to provide the information requested by the Commission.

139 The applicant’s claim relating to the conduct in question of the Chinese Government must therefore be rejected, as must the present complaint in its entirety.

The seventh complaint, alleging infringement of Article 4(3) and (5) of the basic regulation on account of the alleged lack of findings on specificity

140 The applicant takes issue with the Commission for having made no findings as regards specificity, contrary to Article 4(5) of the basic regulation. The Commission merely stated in recital 686 of the contested regulation that the subsidies were limited to companies operating in the Morowali Park and that they were therefore regional subsidies within the meaning of Article 4(3) of the basic regulation. However, the Commission’s findings in Section 4.5 of the contested regulation relate to a wide range of other initiatives.

141 The Commission disputes the applicant’s arguments.

142 In that regard, Article 4(3) and (5) of the basic regulation, which corresponds to Article 2(2) and (4) of the SCM Agreement, provides, in essence, that a subsidy is specific if it is limited to certain enterprises located within a designated geographical region within the jurisdiction of the granting authority and that any determination of specificity under that article is to be clearly supported by positive evidence.

143 In the present case, in recitals 684 to 686 of the contested regulation, the Commission found that ‘by way of acknowledgement and adoption, the [Indonesian Government] was the granting authority with respect to the preferential financing’, that, ‘in particular, the [Indonesian Government had] acknowledged and adopted the designation by the [Chinese Government] of the Morowali Park and IMIP as an overseas investment territory and [had] endorsed the fully fledged implementation of the bilateral agreement and other bilateral documents thereof by, inter alia, the [Chinese Government]’s provision of preferential financing’ and that ‘these subsidies were limited to companies operating in the Morowali Park’.

144 In recital 717 of the contested regulation, the Commission noted that ‘the countervailable subsidies covered by the cooperation between [the Indonesian Government] and [the Chinese Government] were regionally specific as they were limited to eligible companies formally established in the Morowali Park as part of the implementation of the development project implemented by the two governments’.

145 Those findings are based on the analysis that the Commission already set out in particular in Sections 4.3 to 4.5 of the contested regulation, which precedes the detailed examination in Section 4.6 of that regulation.

146 In the first place, access to Indonesian nickel ore was one of the main objectives behind the cooperation with China on the Morowali Park project, as is apparent, in particular, from recital 498 of the contested regulation.

147 In the second place, it is apparent in particular from recitals 574 to 576, 588, 598, 608, 611, 620 and 713 of the contested regulation, which refer to evidence put forward during the administrative procedure, that the Indonesia-China economic cooperation specifically concerned the activities carried out in industrial parks and that it is the companies that set up there which can benefit, inter alia, from preferential financing.

148 In the third place, it follows in particular from recitals 498, 561, 563, 566, 568, 569, 575, 576, 578, 590 and 603 of the contested regulation that the fields supported by that financing included the mining industry, including nickel, metallurgy, and the stainless steel industry.

149 In the fourth place, as is shown in particular by recitals 322, 323, 581, 588, 589, 592, 595, 598 to 600, 603, 604, 615 to 620, 626, 634, 643, 654 to 658, 706 and 778 of the contested regulation, in the stainless steel industry, cooperation specifically led, as a pilot project, to the creation of the Morowali Park, which was a cooperation area specifically designated as such by both the Indonesian Government and the Chinese Government.

150 In the fifth place, it follows from recital 580 of the contested regulation that the bilateral agreements and the documents examined by the Commission demonstrate that the bilateral cooperation took the form of agreements specifying the terms and the contributions of each government. The documents covered in the section of the contested regulation in question confirm that the two governments put in place specific agreements to implement their preferential policies in favour of the specific industries and projects covered by that cooperation. However, Article 4(3) of the basic regulation requires a subsidy to be limited to certain enterprises located within a designated geographical region in order for it to be regarded as specific. It is therefore necessary to determine whether the preferential financing, as practised in the Morowali Park, is applicable in any other part of Indonesia. It has not been shown that that was so in the present case, since the Commission’s finding concerning regional specificity is not called into question by the application of other funds or programmes to other industries or to other industrial parks.

151 In the sixth place, the Commission found, in recital 673 of the contested regulation, referring to past investigations concerning China, that the Chinese preferential financing was not operated by clearly prescribed funding programs with strict eligibility criteria, but rather by the identification at the highest level of a number of encouraged industries. The official designation of the Morowali Park and IMIP in Indonesia as an overseas investment area for Chinese companies in the aftermath of a common agreement between the Indonesian and Chinese Governments to support financing fits perfectly into the usual Chinese pattern of activating preferential financing by its policy banks.

152 Furthermore, in view of the lack of cooperation with the Commission from the Indonesian and Chinese Governments, the Commission did not receive crucial and necessary information on that aspect of the investigation, so that, for the purpose of its findings on the investigation, it had to resort to the facts available, pursuant to Article 28 of the basic regulation (see, in particular, recitals 550 to 559, 573, 634, 642, 657 to 659, 710, 718 to 722, 726, 773, 783, 785 and 792 to 796 of the contested regulation). However, those governments should not benefit from their non-cooperation with the Commission.

153 In view of those circumstances, it was plausible for the Commission to conclude that the preferential financing from which the nickel and stainless steel industry in the Morowali Park benefited was limited to the undertakings established in that park and that it was therefore regionally specific. That is all the more so given that it is not disputed that the other sampled exporting producer, which is not established in the Morowali Park, did not benefit from that preferential financing.

154 In the light of the objective circumstances of the present case relied on by the Commission in the contested regulation, the applicant cannot merely claim that the measures relating to the preferential financing at issue which were the subject of countervailing duties concern a large number of initiatives. It would have had to show that the same financing was not available only to undertakings established in the Morowali Park.

155 Accordingly, the present complaint must be rejected.

The eighth complaint, alleging failure to make findings with respect to the subsidies received as preferential financing

156 The applicant claims that the Commission made no findings with respect to the subsidies in question. It failed to attribute to the Indonesian Government any of those alleged subsidy schemes granted by the Chinese Government and limited its entire analysis in Section 4.5 of the contested regulation to general findings concerning the bilateral relationship between China and Indonesia, without examining any specific subsidy scheme. Relying solely on that general analysis, and before assessing the alleged subsidy schemes at issue in Section 4.6, the Commission concluded that there had been financial contributions that conferred benefits and were specific.

157 The Commission disputes the applicant’s arguments.

158 In that regard, Sections 4.5 and 4.6 of the contested regulation must be assessed together, since they concern the same subject matter, namely preferential financing. The formal existence of two separate sections within the contested regulation is not a matter of analysis, but of drafting. As the Commission correctly points out, Section 4.5 of the contested regulation incorporates its analysis of the preferential financing in Section 4.6 of that same regulation. Moreover, the Commission also relies on the analysis carried out in Section 4.3 of the contested regulation. In recital 723 of that regulation, the Commission refers to the more detailed examination of the relevant subsidies in the following section, that is to say, Section 4.6 on preferential financing.

159 In any event, and contrary to what the applicant claims, in view of the degree of non-cooperation encountered by the Commission during the administrative procedure, it cannot be considered insufficient for the Commission to demonstrate that the Indonesian Government made considerable efforts to receive the preferential financing from China encompassing all the subsidy schemes to which it relates, without demonstrating a specific incentive for each individual subsidy scheme. Moreover, it is in no way ruled out that a set of Indonesian measures may influence a whole set of Chinese measures without it being possible to make a clear, or even individual, attribution. In addition, it is precisely in the context of such cross-border subsidisation that there is a risk that the exact extent of the collusion will be concealed so that the subsidy schemes may fall outside the scope of the basic regulation, or even the SCM Agreement, in order to avoid countervailing measures. It would seriously undermine the effectiveness of EU trade defence law if the Commission were required to demonstrate a specific incentive for each means of financing granted by the third country.

160 The present complaint must therefore be rejected.

161 The second part of the first plea in law must therefore be rejected, as must, accordingly, that plea in its entirety.

The second plea, alleging infringement of Article 3 (2), Article 6 (a), (b) and (d) and Article 15 (1) and (2) of the basic regulation

162 The applicant criticises the Commission, in essence, for having relied on incorrect benchmarks to determine the benefit and calculate the amount of the countervailable subsidies.

163 The present plea is divided into five parts, concerning (i) loans granted by Chinese policy banks to the applicant and related companies, (ii) credit line costs, (iii) support for capital investments in the form of government equity and the purchase of production equipment for less than adequate prices, (iv) provision of nickel ore for less than adequate remuneration and (v) provision of land for less than adequate remuneration.

164 The first three parts of the present plea relate to the aid schemes, which form part of the preferential financing and are therefore linked to the first plea. The last two parts of the present plea concern purely Indonesian aid schemes which do not depend on the first plea.

The first part, concerning loans granted by Chinese policy banks to the applicant and related companies

165 In the first place, the applicant criticises the Commission for having, in essence, erred in excluding the interest rates on United States dollars (USD) loans issued by Indonesian banks during the investigation period on the ground that the government loans were granted in China by Chinese financial institutions. In its view, Article 6(b) of the basic regulation does not, however, require the market-based loans to have been obtained in the country which grants them.

166 In the second place, the applicant is of the view that the Commission erred by failing to base its assessment of the applicant’s credit risk profile on credit rating reports prepared for the companies in the applicant’s group by an Indonesian credit rating agency.

167 In the third place, according to the applicant, the CCC rating was arbitrary in respect of the alleged start-up business of the IRNC Group. In its view, the Commission confused two concepts, namely a start-up business and the start-up phase of an existing business. Risks may arise during that phase, but they are much less significant than those of a start-up business.

168 In the fourth place, the applicant is of the view that the Commission committed two errors by adding a country risk premium linked to the investment in Indonesia. First, the market-based benchmark does not have to be linked to the country of the authority that grants the loans and therefore does not necessarily have to be based on the perspective of Chinese financial institutions. In the light of Article 6 of the basic regulation, that benchmark should, rather, be examined by reference to what the recipient can obtain. Second, it is apparent from recitals 741 and 743 of the contested regulation that the risk from an emerging market like Indonesia had already been taken into account in the adjusted credit rating. That is demonstrated by the consideration of factors such as the fact that the investment was a green field investment, which specifically entails the creation of a subsidiary in a different country from the one in which the investing company is established, and the fact that the risk factor is linked to Indonesia as an emerging market, as specified in recital 741 of the contested regulation. In its view the risk factor was taken into account twice in the final benchmark.

169 The Commission disputes the applicant’s arguments.

170 In that regard, as regards the first complaint, Article 3 of the basic regulation provides that a subsidy is to be deemed to exist where there is a ‘financial contribution’ or ‘income or price support’ provided by a government and if a ‘benefit’ is thereby conferred. Articles 6 and 7 of that regulation set out the procedures for calculating the ‘benefit’ conferred.

171 Article 6 of the basic regulation lays down rules for determining, according to the type of measure concerned, whether it may be regarded as a ‘benefit conferred on the recipient’. In accordance with those rules, a benefit exists if, in practice, the recipient received a financial contribution enabling it to obtain more favourable conditions than those to which it would have access on the market (see judgment of 14 December 2022, PT Wilmar Bioenergi Indonesia and Others v Commission , T‑111/20, EU:T:2022:809, paragraph 200 and the case-law cited).

172 Article 6(b) of the basic regulation and Article 14(b) of the SCM Agreement both provide that ‘a loan by a government shall not be considered to confer a benefit, unless there is a difference between the amount that the firm receiving the loan pays on the government loan and the amount that the firm would pay for a comparable commercial loan which the firm could actually obtain on the market’ and that ‘in that event the benefit shall be the difference between these two amounts’ (judgment of 11 October 2012, Novatex v Council , T‑556/10, not published, EU:T:2012:537, paragraph 119).

173 It is apparent from the Report of the Appellate Body of the WTO adopted on 25 March 2011 in the dispute entitled ‘United States – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China’ (WT/DS379/AB/R, paragraphs 478 and 480) that a loan only confers a benefit when and to the extent that it has been granted on terms that are not otherwise available in the marketplace. A benchmark loan under Article 14(b) of the SCM Agreement must be a loan which the undertaking could actually obtain on the market. The use of the conditional tense, ‘could’, suggests that a benchmark loan under that provision need not in every case be a loan that exists or that can in fact be obtained in the market. It refers first and foremost to the borrower’s risk profile, that is, whether the benchmark loan is one that could be obtained by the borrower receiving the investigated government loan. Thus, Article 14(b) of the SCM Agreement does not preclude the possibility of using as benchmarks interest rates on commercial loans that are not actually available in the market where the undertaking is located, such as, for instance, loans in other markets or constructed proxies.

174 Article 6(b) of the basic regulation, in so far as it also fails to specify the relevant market, must be interpreted in the same way.

175 Furthermore, it is apparent from the Report of the Appellate Body of the WTO adopted on 1 June 2011 in the dispute entitled ‘European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft’ (WT/DS316/AB/R, paragraph 834) that the amount the recipient would have paid on a commercial loan depends on the size of the loan, the interest rate, the duration and other relevant terms of the transaction. Those conditions also relate to the borrower’s level of risk. Since Article 6(b) of the basic regulation is a provision corresponding to Article 14(b) of the SCM Agreement, it must be interpreted in the light of the DSB’s decision-making practice regarding the latter provision.

176 In the present case, it is apparent from recital 732 of the contested regulation that the Commission first examined whether the companies in the IRNC Group had received better terms than they would have obtained on the Indonesian financial market. According to the information submitted by the Indonesian Government, the average interest rates on USD loans issued by Indonesian commercial banks during the period considered were broadly in line with those paid by the companies of that group.

177 However, the Commission considered, in recital 733 of the contested regulation, that those statistics provided by the Indonesian Government did not reflect the specific circumstances of the case, and more specifically the risk factors highlighted in recitals 737 to 742 of the contested regulation.

178 Those risk factors related, in particular, to the fact that the investment was a green field investment entailing high risks, which had to be mitigated by support from the Indonesian Government, the Chinese Government, the Export-Import Bank of China (‘Eximbank China’) and shareholder loans, to fluctuations in the prices of nickel products on the world market and in production costs, to macroeconomic factors such as expectations regarding inflation, interest rates and global and regional demand for, and supply of, commodities, as well as to general global economic conditions. Similarly, the low price of nickel ore, which is necessary for the IRNC Group’s production, is due to the intervention of the Indonesian Government, without the support of which that group could not have invested significant amounts of money in building its plants without, moreover, having the necessary building permits. Furthermore, an additional legal and economic risk arises, according to the Commission, from Indonesia’s status as an emerging market.

179 According to recital 733 of the contested regulation, the statistics provided by the Indonesian Government concerned a multitude of loans, including loans to small and medium-sized enterprises (SMEs), the amounts, duration, purpose, credit risk and so on of which vary, a fact which the applicant does not dispute. In addition, no information was provided on loans for start-up situations requiring significant amounts of financing with a huge underlying risk. Furthermore, the information about loans in Indonesia only concerns loans provided by domestic banks to their domestic customers, and thus did not take into account the fact that in the case at hand, loans were provided by Chinese financial institutions to customers overseas.

180 The Commission also noted, in recital 733 of the contested regulation, the effort that the Indonesian Government made in order to ensure that the Chinese Government would finance the necessary investments for the Chinese companies to bring their smelting capacity to Indonesia, so much so that it appeared reasonable to conclude that there was no private lender in Indonesia that would have provided similar loans to the exporting producers. Since the relevance of the Indonesian Government’s information on interest rates was disregarded, the Commission, in view of the exceptional circumstances mentioned in recital 682 of that regulation, calculated the amount of the countervailable subsidy taking into account the fact that the recipients had obtained the preferential financing in China, that is to say, by establishing the benchmark for comparison in China (recital 734 of that regulation).

181 The applicant does not demonstrate that those findings are vitiated by a manifest error of assessment.

182 The Commission examined, in recitals 732 to 742 of the contested regulation, the relevant conditions of the transaction as set out in paragraph 175 above. Contrary to what the applicant claims, the Commission took into account the particular situation in the present case and analysed the appropriateness of a benchmark for comparison based on Indonesian statistics from the point of view of the IRNC Group. The applicant has not demonstrated that the Commission’s finding that that group could not have received similar loans on the Indonesian market is implausible. Moreover, the applicant did not submit any evidence during the administrative procedure or before the Court to show that that group could have received similar loans on the Indonesian market, having regard in particular to the extent of the loans and its risk situation, assessed without the support of the Indonesian and Chinese Governments. In addition, as the Commission noted in recital 733 of the contested regulation, since the Indonesian Government ensured that the Chinese Government would finance the necessary investments for the Chinese companies to bring their smelting capacity to Indonesia, it is reasonable to conclude that there was no private lender in Indonesia that would have provided similar loans to the exporting producers. According to Article 6(b) of the basic regulation, financing that the beneficiary could actually have obtained must be sought as a reference.

183 Accordingly, the present complaint must be rejected.

184 By its second complaint, the applicant submits, in essence, that the Commission was wrong to disregard the information which it had received from the companies in the IRNC Group in the context of establishing the group risk profile, and that it relied on hypothetical circumstances.

185 In that regard, the Commission found, first of all, in recital 737 of the contested regulation, that it had not received all the necessary information on the rating of the companies in the IRNC Group. Indeed, according to the Commission, of the credit rating reports for the years 2017 to 2020 that the applicant and four other entities related to it submitted, only one credit rating report was complete. In addition, that report cited the support from Eximbank China and shareholder loans as a favourable factor. The Commission then noted the existence of risk factors and advantages which the applicant would not have received without the intervention of the Chinese and Indonesian Governments, as referred to in paragraph 178 above (recitals 738 to 741 of the contested regulation). Lastly, in recitals 742 to 746 of the contested regulation, it established that the credit rating of the companies in that group came within category CCC for the start-up period and within category B during the investigation period. In the context of its response to the applicant’s observations during the administrative procedure, it further clarified, in recital 757 of the contested regulation, its method, which was to make individual assessments of the companies in a group, and to determine either a single benchmark for the group as a whole based on this assessment, or to modulate the benchmark based on the specific circumstances of individual companies in the group in question.

186 Contrary to what the applicant claims, there is nothing in the contested regulation to suggest that the Commission did not take into account the documents in Annex A.14 to the application, or indeed that it disregarded them. On the contrary, it is apparent from that regulation that the Commission took those documents into account and expressed a view on them. Indeed, since it largely disagreed with the analysis contained in those documents and with the conclusions reached therein, the Commission made that clear in recitals 737 to 746 of that regulation. In particular, it explained the reasons that led it to conclude that the credit rating reports in question were not credible. In essence, it held that certain positive factors set out in those credit rating reports stemmed from the support provided by the Indonesian and Chinese Governments, such as the support from Eximbank China and shareholder loans (recitals 737 and 738 of the contested regulation). The same is true as regards the risks faced by the undertakings in the applicant’s group which are mitigated by those governments, such as the green field and start-up nature of the investment (recitals 738, 742 and 743 of the contested regulation), the uncertainty as to the price of nickel ore which the Indonesian Government managed to make available to those companies for less than adequate remuneration (recital 739 of that regulation), the possibility of building factories even in the absence of a building permit (recital 740 of the contested regulation), the risk of investing in a foreign legal environment, including the risk of nationalisations in the sector (recitals 425 to 434 and 741 of the contested regulation) or the established failure to honour their debt repayment schedules on those loans (recital 743 of the contested regulation), followed by debt forgiveness (recital 744 of the contested regulation). Those are indeed factors which could undermine the relevance of the reports submitted by the companies in the applicant’s group.

187 Although the Commission would normally first establish a rating for each company in the group (recital 757 of the contested regulation), the information received by the Commission was very incomplete, as is apparent from recital 737 of that regulation. As is apparent, in essence, from recital 743 of the contested regulation, the Commission in fact undertook to establish a rating for the IRNC Group as a whole, which is, moreover, compatible with the method explained in recital 757 of that regulation, consisting, inter alia, in modulating the benchmark on the basis of the specific circumstances of the individual companies in the group. In those circumstances, it is all the more understandable that the Commission did not accept the analysis contained in the credit rating reports in question as it was, but instead carried out its own assessment of the IRNC Group’s credit risk. It cannot be criticised for not having extrapolated those credit rating reports – which concerned, at most, two companies within that group and which, in its view, did not provide a true and fair view of those companies – to all the companies in that group, or even to the group concerned as such.

188 Although the applicant submits, in essence, that the Commission did not take into account certain factors which were positive in the credit rating reports in question, it should be borne in mind that the Commission is not required to address explicitly each single argument raised by the parties (see, to that effect, judgment of 22 June 2022, thyssenkrupp v Commission , T‑584/19, not published, EU:T:2022:386, paragraph 64). It is sufficient for it to set out the facts and the legal considerations having decisive importance in the context of its decision, namely the contested regulation (see, to that effect, judgment of 23 May 2019, KPN v Commission , T‑370/17, EU:T:2019:354, paragraph 140), which it did in the present case. The attribution of a different weight, or even a different significance, to certain factors comes within the broad discretion enjoyed by the Commission in this area (see paragraphs 23 to 27 above).

189 In the present case, the applicant has not demonstrated any inaccuracy in the facts relied on by the Commission or any manifest error of assessment in its analysis. The conclusion that the risk profile of the applicant’s group companies is not as good as that indicated by the reports and rating certificates produced by the applicant is, on the basis of the information and analysis presented by the Commission, entirely plausible.

190 Furthermore, asking the Court, in the circumstances of the present case, to find that a given negative factor should lead, at most, to a certain reduction in the rating amounts in fact to asking it to substitute its own assessment for that of the Commission, which goes beyond the Court’s powers (see paragraph 28 above).

191 Accordingly, the present complaint must be rejected.

192 In the context of the third complaint, the applicant disputes, in essence, the category CCC rating which the IRNC Group was assigned during the start-up period.

193 In that regard, the present complaint is based on an incorrect premiss in so far as the applicant claims that the Commission confused the concepts of ‘start-up business’ and ‘start-up period of an existing undertaking’. Although it is true that the Commission referred, in recital 742 of the contested regulation, to a start-up entity, it nevertheless clearly explained, in particular in recitals 743 and 757 of that regulation, that it considered that the IRNC Group was in a situation ‘similar’ to that of private equity start-up investments. It therefore took into account its membership of the Tsingshan Group, but took the view in recital 757 of that regulation that, as regards the nature of the investment, which was a greenfield investment in a different country, namely Indonesia, the credit risks involved were greater.

194 In particular, the Commission’s finding in recital 757 of the contested regulation that the fact that a company belongs to a wider group does not impinge upon the fact that certain projects carried out by the group, such as the start-up of a plant, are riskier than others, must be upheld. This is all the more true given that the investment is in a different country. In those circumstances, the evidence put forward by the applicant was unable to change the outcome of the analysis carried out by the Commission taking into consideration the various risk factors referred to in paragraph 178 above. It should also be added that the applicant is not justified in criticising the Commission for not accepting at face value the information and analyses contained in the credit rating reports, which, in any event, could only provide a fragmented picture of the IRNC Group. The importance of belonging to the Tsingshan Group for the final credit rating is even less decisive since none of the parent companies in that group cooperated in the investigation. The Commission’s conclusion that, during the start-up period of its operations in the Morowali Park, the IRNC Group should have been assigned a category CCC rating is thus not implausible.

195 Accordingly, the present complaint must be rejected.

196 In the context of the fourth complaint, the applicant submits, in essence, that the Commission should not have added a risk premium linked to an investment overseas, specifically in Indonesia, to the interest rates established.

197 In recital 741 of the contested regulation, the Commission stated that ‘Indonesia [was] an emerging market and therefore investing in Indonesia [involved] greater risk than investing in more developed markets, including in some cases significant legal and economic risk’, that ‘the mining industry [was] heavily regulated in Indonesia and it [was] changing continuously’, that the ‘IRNC Group [was] a foreign investment’ and that ‘in certain sectors of the Indonesian economy there [were] restrictions regarding the shareholding of foreign enterprises’. That analysis is also reflected in recital 746 of the contested regulation.

198 It was on the basis of that analysis that the Commission established, in recitals 737 to 746 of the contested regulation, the ratings for the IRNC Group.

199 In recital 747 of the contested regulation, the Commission concluded that ‘loans provided by Chinese financial institutions [were] normally granted to Chinese companies located in the domestic Chinese market’, that ‘the IRNC Group on the contrary [was] located in Indonesia, and thus [had] a credit risk different from Chinese companies related to the external conditions prevailing in the country itself, as [it had] highlighted in recital [741 of the contested regulation]’ and that, ‘in order to take into account the specific credit risk environment prevailing in Indonesia, [it had] thus added a mark-up to the benchmark rate established for the Chinese sampled companies, in order to integrate the country risk into the market rate.’

200 As a preliminary point, the Commission’s argument that the present complaint is inadmissible must be rejected. Indeed, there is no requirement under EU law that an interested party in an anti-subsidy investigation, to whom a final or additional information document is addressed, must challenge its various matters of fact or law during the administrative procedure if it is not to be barred from doing so later at the stage of judicial proceedings (judgment of 21 September 2022, Portugal v Commission (Madeira Free Zone) , T‑95/21, EU:T:2022:567, paragraph 182; see also, to that effect and by analogy, judgments of 1 July 2010, Knauf Gips v Commission , C‑407/08 P, EU:C:2010:389, paragraphs 89 to 92, and of 11 July 2013, Ziegler v Commission , C‑439/11 P, EU:C:2013:513, paragraph 57).

201 In the first place, the applicant’s argument that the market-based benchmark need not necessarily be linked to the country of the authority that grants the loans, that is to say, China, must be rejected mutatis mutandis for the same reasons as those set out in paragraphs 173, 175 and 182 above. Indeed, it is reasonable to consider that the IRNC Group would not have obtained loans on the Indonesian market similar to the ones it did receive, as the Commission concluded in recital 733 of the contested regulation. Thus, the Commission did not make any manifest error of assessment in setting the benchmark using the perspective of Chinese market investors.

202 Second, the applicant submits that the risk factor of investing in Indonesia was taken into account twice in the determination of the reference interest rates for the comparison for the purposes of Article 6(b) of the basic regulation (see paragraph 168 above).

203 In the present case, the risk relating to the investment in Indonesia is indeed mentioned both in the part of the Commission’s reasoning regarding the establishment of the credit rating and in that regarding the country risk premium.

204 Following a question from the Court, the Commission clarified that, in the investigation which led to the adoption of Commission Implementing Regulation (EU) 2020/776 of 12 June 2020 imposing definitive countervailing duties on imports of certain woven and/or stitched glass fibre fabrics originating in the People’s Republic of China and Egypt and amending Commission Implementing Regulation (EU) 2020/492 imposing definitive anti-dumping duties on imports of certain woven and/or stitched glass fibre fabrics originating in the People’s Republic of China and Egypt (OJ 2020 L 189, p. 1), certain Chinese banks had cooperated and disclosed that they had considered the country risk linked to the investment in Egypt in the pricing of the financing. It stated that it had inferred from this, despite the lack of cooperation from the Chinese banks in the investigation which led to the contested regulation, that those banks also took into account the specific country risk associated with investments in Indonesia. Moreover, it stated, in paragraph 23 of its reply to the questions, that its benefit calculation consisted of two separate elements, namely, first, a mark-up for the country risk, established for a given country on the basis of a country-by-country assessment made by the Organisation for Economic Co-operation and Development (OECD) and, second, a risk factor for the individual situation of the IRNC Group, reflected in the credit rating. Thus, the Commission proceeded on the basis that a Chinese commercial bank acting as an economic operator would, in calculating the investment risk, have taken into account both the rating resulting from the individual situation of the IRNC Group – which cannot be established without considering the context of the Indonesian market in which that group operates – and the specific country risk. Given that the Commission’s objective is to determine as precisely as possible the amount of the benefit conferred, this approach and explanation are plausible. In that regard, the determination of the credit rating resulting from the individual situation of the IRNC Group, taking into account the context of the Indonesian market, does not support the conclusion that the Commission committed a manifest error in determining the reference interest rates. Taking into account the context of the present case, that is all the more so since the Commission was entitled to consider that it was not necessary to provide further explanations in that regard, given that the applicant did not dispute that point during the administrative procedure (see, to that effect, judgment of 2 October 2024, CCCME and Others v Commission , T‑263/22, EU:T:2024:663, paragraph 261).

205 Accordingly, the present complaint must be rejected, as, therefore, must the first part of the second plea in its entirety.

The second part, concerning credit line costs

206 The applicant submits that the Commission committed three manifest errors of assessment, resulting in the commercial terms used as a benchmark being incomparable to those for obtaining credit line facilities or raising short-term financing by the applicant in Indonesia or in China.

207 In the first place, the applicant is of the view that a borrower does not need to have a credit line or an overdraft before it can borrow from a financial institution. However, the fact that a company opens a credit line with a bank, allowing it to benefit from a financial facility, does not necessarily mean that all of that company’s short-term financing from that bank is exclusively governed by the credit line. The Commission also erred in considering that, where the amount of the company’s short-term financing exceeded the credit line limit, the excess amount should also be covered by the credit line.

208 In the second place, according to the applicant, it is not normal market practice for a bank to charge an arrangement fee or renewal fee for a credit line or overdraft facility, especially when a large sophisticated company, such as the IRNC Group, negotiates with a large and sophisticated bank.

209 In the third place, in its view, it is apparent from the source information from Barclays Bank relied on by the Commission that the overdraft facilities relate to banking services for individuals and not to banking services for companies, such as the applicant.

210 The Commission disputes the applicant’s arguments.

211 In that regard, it is apparent from recitals 761 to 768 of the contested regulation that the Commission established that Chinese financial institutions had provided credit lines to the IRNC Group in connection with the provision of short-term financing, allowing the companies in that group to use various debt instruments within a certain maximum amount. Considering that all short-term financing should normally be covered by a credit line, the Commission compared the amount of the credit lines available to the cooperating companies during the investigation period with the amount of short-term financing used by those companies during the same period to establish whether all short-term financing was covered by a credit line. Where the amount of the short-term financing exceeded the credit line limit, the Commission increased the amount of the existing credit line to the amount actually used. Whereas, under normal market circumstances, credit lines would be subject to an arrangement fee or commitment fee to compensate for the bank’s costs and risks at the opening of a credit line, as well as to a renewal fee charged on a yearly basis for renewing the validity of the credit lines, the Commission found that that group benefited from them mostly free of charge. In its view, a benefit, within the meaning of Article 6(d) of the basic regulation, was therefore conferred on the group in question. Relying on point (ii) of the second subparagraph of Article 6(d) of that regulation, the Commission considered that the benefit conferred on the recipients was the difference between the amount that they had paid as a fee for the opening or the renewal of the credit lines by Chinese financial institutions, and the amount that they would pay for a comparable commercial credit line obtained at an undistorted market rate. The appropriate benchmarks for the arrangement fee and for the renewal fee were established by reference to publicly available data and benchmarks used in previous investigations. The Commission established that those two fees were, in principle, payable on a lump sum basis at the time of the opening of a new credit line or the renewal of an existing credit line, respectively. For calculation purposes, the Commission took into account credit lines which had been opened or renewed before the investigation period but which were available to the sampled groups during that period and also the credit lines that were opened during that period. Then, the Commission calculated the benefit based on the period within the investigation period during which the credit line was available.

212 In the first place, it must be noted that the Commission’s analysis referred to in paragraph 211 above is based on Article 6(d) of the basic regulation, which concerns, inter alia, the provision of services for less than adequate remuneration. Nevertheless, the applicant observes in paragraph 55 of the reply that ‘the scheme of credit line costs [relates to Article 6(b) of that regulation, namely a] government loan [on] preferential terms’.

213 However, first, the applicant does not claim that the Commission’s analysis in recitals 764 and 765 of the contested regulation is incorrect in that regard. Second, in the light of the arguments put forward by the applicant, the question of the choice between Article 6(b) and (d) of the basic regulation as the basis for that analysis has no bearing on its outcome. In particular, it is apparent from the case-law cited in paragraph 171 above that, in accordance with the rules set out in Article 6 of the basic regulation, a benefit exists if, in practice, the recipient received a financial contribution enabling it to obtain more favourable conditions than those to which it would have access on the market. That is the case for both Article 6(b) and Article 6(d) of that regulation. In the case of both the granting of loans and the provision of services, the benchmark for comparison must be found among the loans or services available to the recipient on a market to which it has access.

214 In the second place, having regard to the case-law cited in paragraph 200 above, the fact that the applicant makes no criticism of the Commission’s analysis of the credit line costs during the administrative procedure does not mean that the present part of the plea is inadmissible, contrary to what the Commission claims, in essence.

215 However, the applicant submits, in support of this part of the plea, documents which it did not produce during the administrative procedure, even though it participated therein, and does not claim that they were not available at that time. Those documents include Annex A.16 to the application and a Barclays Bank website address cited in footnote 74 at paragraph 70 of the reply. It is clear from the case-law that, in the context of an action for annulment, the lawfulness of an EU act must, in principle, be assessed on the basis of the matters of fact and law existing on the date on which the act was adopted and which were available or could have been available to the EU body, the author of the act, at that time (see judgments of 10 September 2024, Commission v Ireland and Others , C‑465/20 P, EU:C:2024:724, paragraph 183; of 12 February 2014, Beco v Commission , T‑81/12, EU:T:2014:71, paragraph 44 and the case-law cited; and of 20 March 2019, Foshan Lihua Ceramic v Commission , T‑310/16, EU:T:2019:170, paragraph 129 and the case-law cited). As regards, in particular, the adoption of countervailing duties, the basic regulation imposes an obligation on the Commission to establish, in the context of an investigation which it must conduct, the existence of subsidisation, injury and a causal link between the subsidised imports and the injury. It follows that the Commission is under an obligation to examine of its own motion all relevant information which it does not have but to which it may itself have access (see, to that effect and by analogy, 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, paragraphs 136 and 137).

216 However, the obligation to make an examination of its own motion refers only to the information to which it may itself have access which is relevant to its investigation. The relevance of such information will be dependent on, in particular, the content as well as the reliability of the information and evidence already available to it following the interested parties’ cooperation in that investigation. Furthermore, that obligation to examine matters of its own motion must be reconciled with the other obligations imposed on it by the basic regulation, in particular that of complying with the investigation period referred to in Article 11(9) of that regulation (see, to that effect and by analogy, 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, paragraphs 138 and 139).

217 From that point of view, the basic regulation provides for a set of procedural rights designed to enable interested parties to put forward their observations and to provide the Commission with factual information prior to the adoption of countervailing duties (see, to that effect, judgments 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, paragraphs 139 and 140, and of 19 May 2021, China Chamber of Commerce for Import and Export of Machinery and Electronic Products and Others v Commission , T‑254/18, EU:T:2021:278, paragraph 178). It follows that, as regards the imposition of countervailing duties, an applicant cannot rely for the first time before the Court on factual evidence which the Commission could not itself access, where it had the opportunity to participate in the investigation and had access to it during that investigation, but did not bring that evidence to the Commission’s attention.

218 That is all the more so in view of the Commission’s limited resources in terms of staff, on the one hand, and the potentially very large amount of information that could be taken into account, on the other hand (see, to that effect, 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 145).

219 In addition, although the Court’s review of the matters of fact and of law existing on the date of adoption of the contested act is carried out without prejudice to the possibility afforded to the parties, in the exercise of their rights of defence, to supplement them by evidence established after that date but for the specific purpose of contesting or defending that act (see, by analogy, judgment of 27 September 2006, GlaxoSmithKline Services v Commission , T‑168/01, EU:T:2006:265, paragraph 58 and the case-law cited), it should be noted that the documents submitted by the applicant in support of the present part of the present plea do not constitute such evidence.

220 It follows that the documents referred to in paragraph 215 above cannot be taken into account by the Court in assessing the lawfulness of the contested regulation.

221 The applicant’s argument that the references contained in those documents are illustrative examples of the common knowledge about the financial market of which the Commission should be aware, must be rejected. According to the case-law, well-known facts are those which are likely to be known by anyone or which may be learnt from generally accessible sources (order of the President of the Court of 25 January 2008, Provincia di Ascoli Piceno and Comune di Monte Urano v Zhejiang Aokang Shoes and Others , C‑462/07 P(I), not published, EU:C:2008:47, paragraph 9; judgments of 15 December 2016, Gul Ahmed Textile Mills v Council , T‑199/04 RENV, not published, EU:T:2016:740, paragraph 109, and of 18 September 2024, Rodríguez Ruiz v EUIPO – Scherer (LEMOON) , T‑1099/23, not published, EU:T:2024:630, paragraph 20). However, first, the question whether or not all short-term financing for undertakings should normally be covered by a credit line does not come within the scope of information likely to be known by anyone. Second, a single example, even assuming that it supports the applicant’s argument, cannot demonstrate that such information may be learnt from generally accessible sources (see, to that effect, judgment of 15 December 2016, Gul Ahmed Textile Mills v Council , T‑199/04 RENV, not published, EU:T:2016:740, paragraph 109).

222 Furthermore, the finding regarding the impossibility of taking into account the link referred to in paragraph 70 of the reply is corroborated by the fact that it was provided during the second exchange of pleadings, without that delay being justified, contrary to the provisions of Article 85(2) of the Rules of Procedure, and without it constituting evidence submitted in rebuttal or an amplification of previous evidence to challenge evidence submitted by the Commission in its defence. As regards the latter point, according to the case-law, only evidence in rebuttal and the amplification of previous evidence, submitted in response to evidence in rebuttal submitted by the opposing party in its statement of defence, are not covered by the time-bar rule in Article 85(2) of the Rules of Procedure (see, to that effect, order of 21 March 2019, Troszczynski v Parliament , C‑462/18 P, not published, EU:C:2019:239, paragraphs 39 and 40). That provision concerns offers of new evidence and must be read in the light of Article 92(7) of those rules, which expressly provides that evidence may be submitted in rebuttal and previous evidence may be amplified (judgment of 7 July 2021, HM v Commission , T‑587/16 RENV, not published, EU:T:2021:415, paragraph 55).

223 In the third place, it is apparent both from recital 726 of the contested regulation and from the Commission’s reply to a question from the Court that the Commission’s finding that all short-term financing should normally be covered by a credit line stems from the use of the facts available. Furthermore, by referring to its reasoning in recitals 557, 558 and 792 of the contested regulation, the Commission justified its use of such a source of information. As regards the facts available, it referred to its anti-subsidy investigations concerning China. Since the applicant did not challenge that point in the administrative procedure in which it participated, the Commission was entitled to give less extensive reasons, in the contested regulation, for its findings (see paragraph 204 above). Thus, in view of the lack of cooperation from the Chinese Government and from the applicant’s Chinese parent companies, the Commission, using the facts available, considered that, in principle, all of an undertaking’s short-term financing must be covered by a credit line and that Chinese financial institutions granted credit lines to the companies in the IRNC Group to meet their short-term financing needs. It also had recourse to the facts available to calculate the fees (recital 766 of the contested regulation), which demonstrates, in the absence of cooperation from the Chinese Government, the need to use the facts available to establish that, normally, all short-term financing should be covered by a credit line.

224 Although the applicant maintains that a credit line is not indispensable in all cases in order to obtain short-term financing, it did not provide the Commission with any evidence of this during the administrative procedure. Thus, the Commission cannot be criticised for failing to take into account facts which could have been submitted to it during the administrative procedure by the applicant, who participated therein, but which were not and which the Commission could not itself access (see paragraphs 215 to 219 above).

225 In any event, the documents referred to in paragraph 215 above cannot support the applicant’s line of argument. As regards the document in Annex A.16 to the application, it refers only to the absence of an obligation to hold a current account with the bank. There is no mention of credit lines. As regards the web address given in the reply, it leads to a home page for commercial loans and the applicant does not specify exactly what information should support its line of argument concerning short-term loans. It is not for the Court to carry out searches on websites – which may, moreover, change, or even disappear, at any time – for evidence which could be used in support of the action (judgment of 18 October 2023, TestBioTech v Commission , T‑605/21, not published, EU:T:2023:648, paragraph 49).

226 Moreover, the applicant has not demonstrated the existence of a widespread market practice of granting short-term loans without the obligation to take out a credit line, which would also be available to it.

227 Moreover, the Commission did not contradict itself by increasing the amount of the credit lines by the amount by which the credit line limit had been exceeded. As was noted in recital 767 of the contested regulation, the arrangement fee is, in principle, payable on a lump sum basis due at the time a new credit line is opened. Thus, the Commission did not err in retrospectively determining what the appropriate amount of the arrangement fee would have been by taking into account the sums actually spent.

228 In the fourth place, the applicant has not submitted, either during the administrative procedure or before the Court, any evidence that could call into question the Commission’s finding in recital 764 of the contested regulation that arrangement or renewal fees are payable under normal market conditions (see paragraph 223 above). As the Commission maintains, it follows from the Report of the Panel of the DSB of the WTO adopted on 1 June 2011 in the dispute entitled ‘European Communities and certain Member States – Measures affecting trade in large civil aircraft’ (WT/DS316/R, paragraph 7.799) that, in so far as the European Investment Bank (EIB) did not require the European Aeronautic Defence and Space Company (EADS) to pay a fee to compensate for its commitment to make funding available at a fixed risk premium, irrespective of any deterioration in its creditworthiness, the loan that the EIB granted to EADS was more advantageous than a comparable loan from a commercial lender. Similarly, the applicant did not dispute the Commission’s observation that all the companies in the other group of sampled exporting producers, [ confidential ]. That shows that those fees are generally applicable even to large undertakings.

229 In the fifth place, while it is true, as the Commission also acknowledges, that there was a mistake as regards the link provided in the contested regulation by way of reference for the amount of arrangement fees, in that it is a link to the webpage entitled ‘Personal banking’ of Barclays Bank, instead of the webpage entitled ‘Business banking’, it should be noted that the applicant does not dispute, in the context of the present part, that amount, but rather its existence. However, as is apparent from paragraph 227 above, the applicant has not shown that the Commission’s findings on that point were vitiated by a manifest error of assessment. Moreover, the applicant does not claim that the rate for loans to entrepreneurs is not consistent with the benchmark used by the Commission.

230 The second part of the second plea must therefore be rejected.

The third part, concerning support for capital investment

231 The applicant divides this part into two complaints, on the basis of the type of assistance. The first concerns the equity injection by the China-ASEAN Investment Cooperation Fund (‘CAF’). The second concerns the provision of capital in kind for less than adequate remuneration.

– The first complaint, concerning the equity injection by CAF

232 According to the applicant, the Commission committed several manifest errors of assessment in its application of Article 6(a) of the basic regulation.

233 In the first place, in the applicant’s view, first, the Commission erred in comparing the market value with the actual sale price of the 24% stake held by [ confidential ] in SMI, one of the companies in the IRNC Group, at the time the shares were sold. Second, as a financial investor that preferred low-risk and a guaranteed return on investment, [ confidential ] chose to subscribe to special shares which allowed it to obtain a return through dividends, but with restricted shareholder rights. That was a balanced, prudent, rational and usual market-based approach, because at the time of the investment, it was not possible to know whether or not the operation would be profitable.

234 In the second place, even assuming that the benefit should be assessed at the time the shares are sold, the Commission did not correctly establish the market-based value.

235 The Commission disputes the applicant’s arguments.

236 In that regard, the present complaint concerns the explanations set out in recitals 772 to 781, 797, 798 and 802 to 805 of the contested regulation.

237 The Commission established, using the facts available, that [ confidential ], wholly owned and controlled by CAF, an offshore equity fund approved by the State Council of the People’s Republic of China and the National Development and Reform Commission (NDRC, China) (recital 589 of the contested regulation), which could be regarded as a public body, acquired in 2013 a 24% shareholding in SMI. Pursuant to the terms of the Subscription Agreement with the other shareholders, [ confidential ] was to sell its shares back to the other shareholders at the same price five to six years after its initial investment, irrespective of the actual market value of the shares. Furthermore, [ confidential ]’s acquired shares were special shares with very limited governance rights. The Commission concluded, in the light of those circumstances, that the investor, who did not expect a reasonable return and did not seek to obtain control rights, did not act as a market operator. At the end of the investigation, it concluded that, after the start-up period, the investment in SMI became less risky and the company’s financial position got stronger, with the result that the value of its shares increased over time, which was not, however, reflected in [ confidential ]’s sale price. In the Commission’s view, those circumstances do not reflect rational behaviour of an operator acting under normal market conditions. It thus concluded that the financial contribution provided by the Chinese Government via CAF, acting as a public body, conferred a benefit within the meaning of Article 3(2) of the basic regulation.

238 The benefit was calculated on the basis of a reasonable rate of return, that is to say, what a market investor would have expected to make when selling the shares at the time the shares were purchased. To that end, the Commission looked for similar transactions in the steel industry in recent years. Based on the result of 11 sales transactions of steel companies in the period 2006 to 2019, it concluded that a reasonable price for the shares in a steel company would be eight times the operating profit. The benefit was therefore established as the difference between the value of [ confidential ]’s 24% stake valued at eight times the operating profit of SMI for 2018, less the price paid by [ confidential ]. The benefit was then apportioned to the investigation period using the lockdown period mentioned in the Subscription Agreement, that is to say, five and a half years.

239 In the context of the present complaint, it is necessary for the Court to determine the relevant point in time for the purposes of the Commission’s assessment of whether the IRNC Group had received a benefit as a result of [confidential]’s acquisition of a shareholding in SMI.

240 Article 6(a) of the basic regulation states that ‘government provision of equity capital shall not be considered to confer a benefit, unless the investment can be regarded as inconsistent with the usual investment practice, including for the provision of risk capital, of private investors in the territory of the country of origin and/or export’.

241 In requiring the Commission to examine whether the ‘investment’ can be regarded as inconsistent with the usual investment practice, Article 6(a) of the basic regulation does not expressly specify whether it refers to an ex ante or ex post assessment.

242 However, it is apparent from the case-law that the provisions of the basic regulation must be interpreted, as far as possible, in the light of the corresponding provisions of the SCM Agreement and that the EU judicature must, for the purpose of interpreting the latter agreement, take account of the interpretation adopted by the DSB (see paragraphs 36 to 42 above).

243 In the present case, Article 14(a) of the SCM Agreement provides that ‘government provision of equity capital shall not be considered as conferring a benefit, unless the investment decision can be regarded as inconsistent with the usual investment practice (including for the provision of risk capital) of private investors in the territory of that [member of the WTO]’.

244 As regards the interpretation of Article 14(a) of the SCM Agreement, it is apparent from paragraph 706 of the Report of the Appellate Body of the WTO adopted on 1 June 2011 in the case entitled ‘European Communities and certain Member States – Measures affecting trade in large civil aircraft’ (WT/DS316/AB/R) that under a benefit analysis, a comparison is made between the terms and conditions of the financial contribution when it is granted with the terms and conditions that would have been offered on the market at that time. For example, that provision, which deals with the provision of equity capital, focuses on whether the investment decision comports with the usual investment practice of private investors. The rules set out in Article 14(a) to (d) of the SCM Agreement support, according to the Appellate Body of the WTO, the view that an assessment of benefit should focus on the relevant market benchmark at the time the financial contribution is granted to the recipient. That benchmark entails a consideration of what a market participant would have been able to secure on the market at that time. The market benchmark is predicated upon a projection as to the anticipated flow of returns that are expected to accrue as a result of the financial contribution. Consequently, the determination of benefit under Article 1.1(b) of the SCM Agreement is an ex ante analysis that does not depend on how the particular financial contribution actually performed after it was granted.

245 That is confirmed in paragraph 999 of the report cited in paragraph 244 above as follows:

‘We … observe that Article 14(a) [of the SCM Agreement] focuses the inquiry on the “investment decision”. This reflects an ex ante approach to assessing the equity investment by comparing the decision, based on the costs and expected returns of the transaction, to the usual investment practice of private investors at the moment the decision to invest is undertaken. The focus in Article 14(a) [of the SCM Agreement] on the “investment decision” is thus critical, in our view, because it identifies what is to be compared to a market benchmark, and when that comparison is to be situated’.

246 It must therefore be concluded that, in the light of Article 14(a) of the SCM Agreement and the report cited in paragraphs 244 and 245 above, Article 6(a) of the basic regulation must be interpreted as requiring the assessment of the existence of a benefit to be made from the perspective of the time the decision to acquire a shareholding in the beneficiary was taken.

247 Moreover, the same logic is applied in the case-law relating to State aid. Although the lawfulness of a decision in this domain falls to be assessed in the light of the information available to the Commission on the date it adopted that decision, for the purpose of applying the private investor test, the only relevant evidence is the information which was available, and the developments which were foreseeable, at the time when the decision to make the investment was taken (see judgments of 18 September 2018, Duferco Long Products v Commission , T‑93/17, not published, EU:T:2018:558, paragraph 33 and the case-law cited, and of 21 December 2021, Gmina Kosakowo v Commission , T‑209/15, not published, EU:T:2021:926, paragraph 87 and the case-law cited).

248 Next, it is necessary to examine whether, in the present case, the Commission assessed whether the IRNC Group had received a benefit as a result of [ confidential ]’s acquisition of a shareholding in SMI at a time which was not subsequent to [ confidential ]’s acquisition of its shareholding in SMI.

249 It is apparent from recital 780 of the contested regulation that, in order to assess, through the investor or market operator test, whether the shareholding in question had conferred a benefit, the Commission considered the situation at the time of the investment decision. The analysis of the share price and of the evolution of SMI’s risk profile carried out in recital 781 of that regulation merely confirmed that analysis.

250 It follows that the Commission did not commit an error as regards the point in time it took as its reference when assessing whether the IRNC Group had received a benefit as a result of [ confidential ]’s acquisition of a shareholding in SMI.

251 As regards the calculation of the amount of the benefit in question, it is apparent from the first sentence of recital 797 of the contested regulation that the Commission based its assessment on the test of what an investor would have expected as regards the return on its shares at the time of their purchase. In that regard, the Commission cannot be criticised for having taken into account sales transactions up to 2018, when [ confidential ] sold its shares, because the benefit must be measured in accordance with the actual situation on the market. Indeed, as far as possible, the method used by the Commission to calculate the advantage must make it possible to reflect the benefit actually conferred on the recipient (judgment of 14 December 2022, PT Wilmar Bioenergi Indonesia and Others v Commission , T‑111/20, EU:T:2022:809, paragraph 200). As noted in paragraph 171 above, it is also apparent from that judgment that the methods used by the Commission to calculate the benefit must make it possible to measure whether, in practice, the recipient received a financial contribution enabling it to obtain more favourable conditions than those to which it would have access on the market. Moreover, if the situation were otherwise, that is to say, if the amount of the benefit were to be calculated using only the information available at the time of the purchase of the shares in question, that could present a considerable risk for beneficiaries, such as the applicant. Indeed, even if an investment appears promising at the time of the decision to purchase, it is possible that the market will evolve contrary to investors’ expectations, with the result that the transaction in question does not generate profits, or even results in a loss. Such an investment cannot justify countervailing duties, the purpose of which is to offset the benefit received.

252 As regards the remainder of the Commission’s analysis in the contested regulation concerning the equity injection by CAF, the applicant has also failed to demonstrate a manifest error of assessment.

253 In the present case, the applicant has not shown that the Commission’s finding – that it is not rational to make a considerable investment, representing 24% of a company’s capital, in the steel sector for the sole purpose of recovering the capital invested at the end of five or six years and possibly receiving dividends, without even having control rights – lacks plausibility. Indeed, it is entirely normal that the risk profile of the IRNC Group, including that of SMI, was less favourable during the start-up period and more stable thereafter, as a start-up activity involves greater risk than when the undertaking in question is already well established. It was therefore by no means certain that such an activity would generate distributable profits during that period, which is rather investment-intensive and during which, in particular, both upstream and downstream commercial networks may not yet be fully established. By contrast, the Chinese Government’s experience with the relocation of production indicates that it expected SMI’s activity to stabilise after five or six years, with the result that its share price would have a reasonable chance of increasing.

254 The Commission took into account a wide range of transactions in the sector concerned, similar to [ confidential ]’s acquisition of a shareholding in SMI, over a sufficiently long period to ensure that it was representative.

255 As regards the type of shares, it follows in particular from paragraph 253 above and from recital 780 of the contested regulation that a decisive factor in determining the existence of a benefit lies in the fact that the SMI shares acquired by [ confidential ] were special shares carrying a right to dividends but no control rights. However, the Commission must establish as a point of reference a normal market situation in which the investor wishes to benefit from both dividends and control rights, or expects to increase the value of its shares. That would normally be the case with ordinary shares. Moreover, the applicant has not demonstrated that the value of special shares in companies in the steel sector in Indonesia would have evolved over time in a manner different from that of ordinary shares.

256 Although the applicant criticises the Commission for having used the average equity value to earnings before interest, taxes, depreciation and amortisation (EBITDA) ratio, it should be recalled that the Commission used operating profit to calculate the benefit (recitals 797, 798 and 805 of the contested regulation). In so far as the applicant’s argument is to be understood as criticising the Commission for using an average derived from transactions yielding very different results, that fact has not been established by the applicant before the Court. In any event, the Commission cannot be criticised for this, since its intention was to construct a sample of transactions that was as representative as possible.

257 Lastly, as regards the applicant’s argument that, in essence, the value of the shares (equity) cannot correspond to eight times the EBITDA and that such a result is incompatible with a category B credit rating, it should be recalled that the Commission did not use EBITDA, but operating profit. It should also be noted that the applicant has not adduced any evidence capable of supporting its analysis that the result reached by the Commission is inappropriate. In any event, it is necessary to uphold the Commission’s reply, namely that the fact that the benchmark represents 10 times the initial value of the shares shows that, after the start-up period, investment in SMI became less risky and the financial position of that company became stronger. That analysis is not inconsistent with its category B rating, which had been upgraded from CCC to BB before being downgraded again to B due to the circumstances referred to in recital 743 of the contested regulation. A credit rating is, moreover, dependent on several financial factors which the Commission took into account in recitals 737 to 746 of the contested regulation.

258 Accordingly, the present complaint must be rejected.

– The second complaint, concerning the provision of capital in kind for less than adequate remuneration

259 The applicant submits that the analysis carried out by the Commission infringes Article 6(d) of the basic regulation in four respects.

260 In the first place, according to the applicant, the benchmark price chosen by the Commission does not reflect the prevailing market conditions in the country of provision, but rather those of the European and American markets. It is of the view that the fact that it did not purchase the production equipment in question on the Indonesian domestic market does not prevent the Commission from exploring and investigating the import price of similar equipment by other exporting producers in the country, such as the other cooperating producer, PT Jindal Stainless Indonesia.

261 In the second place, even if an out-of-country benchmark were justified, the Commission could have used a benchmark that was adequately adjusted to reflect the normal market conditions in the country of provision, in accordance with point (i) of the second subparagraph of Article 6(d) of the basic regulation, or used the benchmark prevailing in India, the other country subject to the same investigation, which has a similar level of development, in accordance with point (ii) of the second subparagraph of Article 6(d) of the basic regulation.

262 In the third place, the applicant maintains, in essence, that the benchmark price used by the Commission does not reflect the prevailing purchasing or negotiating power of IRNC’s Chinese parent company at the time the production equipment in question was purchased.

263 In the fourth place, it considers that that benchmark price does not correspond to the product in question. In its view, it relates only to the cold-rolling line, whereas the IRNC Group imported a full set of production lines covering a wide range of equipment, having very different natures, characteristics and uses.

264 The Commission disputes the applicant’s arguments.

265 In that regard, it follows from recitals 782 to 796 of the contested regulation that the Commission found that, during their start-up period, all the companies in the IRNC Group had benefited from capital contributions in kind in the form of production equipment. According to the Commission, all the machinery for the production process of the IRNC Group was imported from related companies in China, which were not the manufacturers of the production equipment in question. Since the applicant’s Chinese parent companies refused to provide the invoices relating to the purchase of that production equipment from the original manufacturers, the Commission considered that it had been prevented from verifying whether the prices were at arm’s length and whether the origin was indeed China, as declared. In order to remedy the lack of information on the prices and origin of that production equipment, it used as a proxy a combination of prices for similar equipment from several countries in recent years, based on purchase transactions of steel companies. The difference between the benchmark value and the reported value was expressed as a percentage of the reported cost, which was then applied to all machinery imported by the five companies in the IRNC Group. The Commission found that the production equipment in question had been provided at a significant discount compared with international market prices.

266 Thus, pursuant to Article 28(1) of the basic regulation, the Commission concluded that the applicant’s Chinese parent companies had received a financial contribution in the form of grants or preferential financing that were then used to provide, inter alia, capital in kind to their subsidiaries. It concluded that the financial contribution provided by the Chinese Government via those parent companies conferred a benefit, with the result that it was countervailable as equity injections supported by the State, with the aim of setting up and expanding the production facilities of the IRNC Group in Indonesia.

267 Recital 6 of the basic regulation states as follows:

‘For the calculation of the benefit to the recipient in cases where a market benchmark does not exist in the country concerned, the benchmark should be determined by adjusting the terms and conditions prevailing in the country concerned on the basis of actual factors available in that country. If this is not practicable because, inter alia, such prices or costs do not exist or are unreliable, then the appropriate benchmark should be determined by resorting to terms and conditions in other markets.’

268 Article 6(d) of the basic regulation gives effect to that objective by providing as follows:

‘The provision of goods or services or purchase of goods by a government shall not be considered to confer a benefit, unless the provision is made for less than adequate remuneration or the purchase is made for more than adequate remuneration. The adequacy of remuneration shall be determined in relation to prevailing market conditions for the product or service in question in the country of provision or purchase, including price, quality, availability, marketability, transportation and other conditions of purchase or sale.

If there are no such prevailing market terms and conditions for the product or service in question in the country of provision or purchase which can be used as appropriate benchmarks, the following rules shall apply:

(i) the terms and conditions prevailing in the country concerned shall be adjusted, on the basis of actual costs, prices and other factors available in that country, by an appropriate amount which reflects normal market terms and conditions; or

(ii) when appropriate, the terms and conditions prevailing in the market of another country or on the world market which are available to the recipient shall be used.’

269 It follows from that wording that the determination of the ‘benefit’ involves a comparison and that, since it aims to assess the appropriateness of the price paid as against normal market conditions, in principle in the country of provision, that comparison must take into account all the elements of the cost to the recipient of receiving the goods provided by the government. Therefore, it follows from that provision that, as far as possible, the method used by the Commission to calculate the advantage must make it possible to reflect the benefit actually conferred on the recipient (judgment of 14 December 2022, PT Wilmar Bioenergi Indonesia and Others v Commission , T‑111/20, EU:T:2022:809, paragraph 200).

270 The wording of Article 14(d) of the SCM Agreement is similar to that of the first subparagraph of Article 6(d) of the basic regulation, but it does not contain a second subparagraph laying down the rules to be applied in situations where there are no prevailing market terms and conditions for the product or service in question in the country of provision or purchase which can be used as appropriate benchmarks.

271 Article 6(d) of the basic regulation and Article 14(d) of the SCM Agreement provide that the adequacy of remuneration is to be determined in relation to prevailing market conditions for the product in question in the ‘country of provision’. Although it may often be the case in practice, and although the expression ‘country concerned’, used in recital 6 of that regulation, would normally refer to the country of origin or export, neither Article 6(d) of that regulation nor Article 14(d) of the SCM Agreement requires that the country of provision must necessarily be the country of origin or export. As regards, in particular, Article 6(d) of the basic regulation, as is also apparent from the case-law cited in paragraph 269 above, its objective is to enable the Commission to adopt a method adapted to each particular set of circumstances so that it can always calculate the benefit actually conferred on the recipient. It is thus an anti-circumvention provision that allows the Commission to look beyond the appearances of a complex economic and legal construct, such as the one in the present case, and avoids an absolute obligation to refer to the circumstances existing in the country of production or export where recourse to those circumstances does not truly reflect the beneficiary’s situation. That conclusion also comes within the scope of the discretion conferred by Article 14 of the SCM Agreement, which establishes mandatory parameters according to which the benefit must be calculated, without, however, requiring the use of a single method to determine the adequacy of the remuneration for the provision of goods by a government.

272 It is apparent from the case-law that the provisions of the basic regulation must, so far as possible, be interpreted in the light of the corresponding provisions of the SCM Agreement (see paragraph 38 above). Similarly, although the interpretations of the SCM Agreement adopted by the DSB of the WTO are not capable of binding the Court in its assessment of the validity of the contested regulation, it must take them into account in its interpretation where they are corresponding provisions (see paragraph 37 above) (see judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑300/16, EU:T:2019:235, paragraph 103 and the case-law cited; judgment of 14 December 2022, PT Wilmar Bioenergi Indonesia and Others v Commission , T‑111/20, EU:T:2022:809, paragraphs 38 and 39; see also, by analogy, judgment of 11 July 2017, Viraj Profiles v Council , T‑67/14, not published, EU:T:2017:481, paragraph 89). However, the differences in the wording of the second subparagraph of Article 6(d) of the basic regulation, on the one hand, and Article 14(d) of the SCM Agreement, on the other, mean that, on this point relating to alternative methods of calculating the benefit, those provisions cannot be regarded as ‘corresponding’ within the meaning of that case-law.

273 Indeed, as the parties also note in their replies to a question from the Court, the second subparagraph of Article 6(d) of the basic regulation contains additional rules compared to Article 14(d) of the SCM Agreement. It is thus the expression of the intention of the EU legislature, which is, moreover, specifically explained in recital 6 of the basic regulation, to adopt, in this domain, an approach specific to the EU legal order (see, by analogy, judgment of 16 July 2015, Commission v Rusal Armenal , C‑21/14 P, EU:C:2015:494, paragraph 48).

274 Consequently, Article 6(d) of the basic regulation must be interpreted with a view to enabling the Commission to examine and quantify the benefit actually received by the recipient.

275 It is, moreover, apparent from the arguments put forward by the applicant during the administrative procedure (recitals 810 to 812 of the contested regulation) that it shared that analysis, maintaining that the country of provision should be either Indonesia or China.

276 Although, in the present case, the production equipment in question was ultimately installed in the IRNC Group’s factories in Indonesia, all of that equipment was imported from related companies in China, which were not the manufacturers of that equipment. However, on account of the complete lack of cooperation from the Chinese parent companies of the IRNC Group and from the Chinese Government, the Commission was unable to determine the actual origin of that production equipment or to verify whether the prices were at arm’s length, as is apparent in particular from recitals 783, 785, 813 and 815 of the contested regulation. It clearly follows that the Commission was unable to use the data relating to conditions on the Chinese market as appropriate benchmarks.

277 Thus, the Commission was only able to establish that it was at the latest at the time of the acquisition of the production equipment in question by the related companies in China, which were not manufacturers of that production equipment, that they were acquired by the Tsingshan Group, to which the applicant belongs (see paragraph 193 above). Consequently, at the latest at the time of the transfer of that production equipment from those related companies to the companies in the IRNC Group, the transactions relating to it took place within an intra-group context, that is to say, outside normal market conditions.

278 The Commission also established, using the facts available, that the benefit received by the Chinese parent companies of the IRNC Group from the Chinese Government in order to purchase the production equipment in question which was to be used in the factories in Indonesia was transferred in full to the subsidiaries in Indonesia (recitals 792, 793 and 795 of the contested regulation), a fact which the applicant does not dispute before the Court.

279 In those circumstances, as companies related to the Tsingshan Group, the companies in the IRNC Group were supplied with production equipment outside the Indonesian market, without it being possible, however, on account of the lack of cooperation on the part of the Chinese parent companies and the Chinese Government, to determine their exact origin.

280 The Commission therefore concluded in recital 813 of the contested regulation that, ‘with respect to the “country of provision …” of the [production equipment in question], … the IRNC Group itself did not make any equipment purchases on the domestic Indonesian market’, that ‘all of [that production equipment had been] imported’ and that ‘using Indonesia as a benchmark would thus not have been aligned with the factual situation of the IRNC Group’.

281 Since the production equipment in question was actually acquired outside Indonesia in the context of purchases organised at the level of the companies related to the Tsingshan Group and with the financial support of the Chinese Government, it is indeed artificial to attempt to establish a benchmark for comparison in Indonesia. Such a benchmark would not have made it possible to measure the actual extent of any benefit received by the applicant.

282 In any event, as regards the possibility of using the data from the purchase of production equipment by [ confidential ], the applicant has not put forward any argument capable of calling into question the Commission’s analysis, set out in recital 814 of the contested regulation, that these were [ confidential ], with the result that, contrary to what the applicant claims, the data are unfit for use as a benchmark, which must be based on the market, which is not normally the case for such a transaction, unless there is evidence to the contrary. The Commission would thus have been obliged to request information from the sampled Indian company on the actual origin and external purchase price of that Indian production equipment, even though that information was not necessary to determine subsidisation under the Indian subsidy schemes. However, it is not obliged to ask other companies for confidential business information which does not concern the assessment of the applicant’s situation. That is all the more so in a situation such as that in the present case, where the total lack of cooperation from the Chinese parent companies of the IRNC Group and the Chinese Government was characterised, inter alia, by their refusal to provide invoices for the purchase of the production equipment in question.

283 As regards China, the Commission could not regard it as the reference country, since there was no certainty as to the actual origin of the production equipment in question. Moreover, since the applicant’s Chinese parent companies and the Chinese Government demonstrated a complete lack of cooperation (recitals 783, 785, 796, 813, 815 and 817 of the contested regulation and footnote 210 thereto), the Commission had no information on prices in China and was thus prevented from establishing the benchmarks on the basis of official Chinese statistics, with the result that the conditions for recourse to the alternative methods of calculating the benefit provided for in the second subparagraph of Article 6(d) of the basic regulation are satisfied.

284 The finding set out in recitals 796 and 799 of the contested regulation and in footnote 210 thereto, according to which, ‘since the Commission could not find any information about prices in China and no information was provided about the origin of the equipment, the Commission decided to use a combination of prices for similar equipment from several countries as a proxy’ is therefore free from error.

285 As regards India as the reference country, the applicant merely claimed that that country had a similar level of development to that of Indonesia. It did not however submit, during the administrative procedure or before the General Court, any evidence substantiating that claim or any other argument to challenge the Commission’s choice to rely on American and EU prices; consequently, it did not adduce any evidence to render the Commission’s findings implausible. The appropriateness of a benchmark in the context of Article 6(d) of the basic regulation cannot be assessed solely on the basis of the level of economic development. Market-determined prices depend on a multitude of other factors. It has not been contested that ‘Europe and the US both have a reputable industry for steel plant equipment, and the suppliers included in the benchmark sold cold-rolling mills around the world, including to Chinese steel manufacturers’ (recital 814 of the contested regulation). Therefore, the Commission was fully entitled to consider that such global players could be used as a reasonable proxy for a purchase of imported production equipment of unknown origin.

286 Although the applicant considers that the purchase of the production equipment in question by the other cooperating sampled producer should at least have been used to make adjustments to reflect the situation in Indonesia, it should be recalled that the Commission stated in recital 815 of the contested regulation, in response to a similar argument, that, since there was no evidence that that production equipment had been procured in Indonesia, there was no need to make any further adjustments. As concluded in paragraphs 267 to 281 above, Indonesia cannot be regarded as the ‘country of provision’ within the meaning of Article 6(d) of the basic regulation. Furthermore, it was found in paragraph 282 above that the data from the purchase of that production equipment by the sampled Indian company are unfit for use as a benchmark, which must be based on the market. The same applies to their use for the purpose of adjusting a benchmark established on the basis of point (ii) of the second subparagraph of Article 6(d) of the basic regulation.

287 While the Commission considers that the obligation that a benchmark established on the basis of the situation outside the country of provision should adequately reflect market conditions for the product or service in question in the country of provision or purchase does not follow directly from the wording of point (ii) of the second subparagraph of Article 6(d) of the basic regulation, the main parties agree that such an obligation has its origin in the decision-making practice of the DSB of the WTO.

288 However, as was recalled in paragraphs 272 and 273 above, the second subparagraph of Article 6(d) of the basic regulation contains additional rules compared to Article 14(d) of the SCM Agreement, with the result that, as regards the alternative methods of calculating the benefit, those provisions are not ‘corresponding’ provisions. The second subparagraph of Article 6(d) of the basic regulation is, rather, an expression of the EU legislature’s intention to adopt an approach in this domain that is specific to the EU legal order.

289 Thus, although the decision-making practice of the DSB of the WTO may be justified by the fact that Article 14(d) of the SCM Agreement does not contain an alternative method in the event that it is not possible to establish a benchmark on the basis of the prevailing conditions in the country of provision or sale, the situation is different in the basic regulation. In particular, the method laid down in point (ii) of the second subparagraph of Article 6(d) of the basic regulation is intended to apply ‘if there are no such prevailing market terms and conditions for the product or service in question in the country of provision or purchase which can be used as appropriate benchmarks’ and if it is not possible to make adjustments to the terms and conditions prevailing in the country concerned by applying the method set out in point (i) of the second subparagraph of Article 6(d) of that regulation, as is apparent, moreover, from recital 6 of that regulation (see paragraph 267 above). Under this second alternative method, the EU legislature does not require the Commission to adjust an external benchmark to the market conditions for the product or service in question in the country of provision or purchase.

290 The applicant further submits that the obligation that a benchmark outside of the country of provision must appropriately reflect the market conditions for the product or service in question in the country of provision or purchase follows from the use of the expression ‘when appropriate’ at the beginning of the English-language version of that provision. That interpretation, according to the applicant, is confirmed by the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑300/16, EU:T:2019:235, paragraphs 210, 219 and 222).

291 In that regard, the English- and Slovak-language versions use the expression ‘when appropriate’ to introduce the second alternative method in the second subparagraph of Article 6(d) of the basic regulation and the applicant relies on that expression in order to argue that it follows that, where a reference determined by the Commission does not sufficiently reflect the prevailing market conditions for the product or service in question in the country of provision or purchase, and having regard to the specific situation in which the exporting producer concerned finds itself, the Commission is required to make appropriate adjustments.

292 However, a restriction corresponding to the expression ‘when appropriate’ in the English-language version of point (ii) of the second subparagraph of Article 6(d) of the basic regulation is not to be found in other language versions, such as the French-, German-, Dutch-, Spanish- and Czech-language versions, which provide that the Commission may apply that method ‘if necessary’.

293 It is settled case-law that the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision or be given priority over the other language versions. Provisions of EU law must be interpreted and applied uniformly in the light of the versions existing in all EU languages. Where there is divergence between the various language versions of an EU legislative text, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (judgments of 10 July 2014, Ivansson and Others , C‑307/13, EU:C:2014:2058, paragraph 40, and of 16 November 2023, Spain v Council (Supplementary conservation measures in the Western Mediterranean) , C‑224/22, not published, EU:C:2023:891, paragraph 69).

294 Having regard to the intention of the legislature as expressed in recital 6 of the basic regulation, point (ii) of the second subparagraph of Article 6(d) of that regulation must be interpreted as meaning that the Commission may establish a benchmark outside the country of provision or purchase where it is not possible to adjust the terms and conditions prevailing in the country concerned on the basis of actual factors available in that country, because, in particular, such prices or costs do not exist or are unreliable, which in fact corresponds to the language versions in which that alternative method of calculating the benefit is introduced by the expression ‘if necessary’. It follows that the argument that the obligation to adjust a benchmark established on the basis of the situation outside the country of provision or purchase in the light of the situation in the latter country follows from the English-language version of point (ii) of the second subparagraph of Article 6(d) of the basic regulation must be rejected.

295 In any event, as explained in paragraphs 283 and 286 above, on account, first, of the lack of cooperation from the Chinese parent companies and from the Chinese Government and, second, of the [ confidential ], the Commission did not have reliable data that would have enabled it to adjust the external benchmark in line with the market conditions in the country of provision or purchase. Indeed, if the Commission were obliged, under the second alternative method of Article 6(d) of the basic regulation, to use data that had been deemed unusable in the main method and in the first alternative method, data deemed unsuitable for use as a benchmark would be reintroduced into the calculation, which would run counter to the express intention of the legislature.

296 Thus, while the Commission has the option of adjusting a parameter used to establish the external benchmark using data not vitiated by the defects listed by way of example in recital 6 of the basic regulation (in particular, where those prices or costs do not exist or are unreliable), it is under no obligation to make an adjustment using data that was excluded, since they were vitiated by those defects.

297 As regards the applicant’s argument based on the alleged failure to take into account the bargaining power of the Tsingshan Group, it should be noted, first, that, [ confidential ] it is not clear how the applicant’s Chinese parent companies could have exercised that bargaining power, that power often making it possible to obtain a price rebate on account of the quantities to be supplied. Second, it is sufficient to note that the applicant does not claim to have provided the Commission with any evidence in that regard. Had the Chinese parent companies of the IRNC Group cooperated with the investigation, which they did not, the Commission would have been able to take into account any discounts that the applicant and its group might have obtained in relation to the usual market base prices.

298 Lastly, the applicant has not put forward anything that could specifically call into question the plausibility of the Commission’s method of extrapolating the benefit ratio established for the cold-rolling lines to all the production equipment in question. Although such a line is not the only equipment which a company in the IRNC Group must purchase for its production, the applicant has not disputed that that line is a piece of essential production equipment. It did not put forward any evidence during the administrative procedure or before the General Court to show that the benefit ratio for the purchase of other production equipment is different.

299 It follows that the present complaint should be rejected and, accordingly, the third part of the second plea must be rejected in its entirety.

The fourth part, concerning the provision of nickel ore for less than adequate remuneration

300 The applicant claims, in essence, that the Commission should not have used the Philippine prices, which are also distorted because of the Indonesian measures. In its view, the Commission should instead have established a benchmark price on the basis of the information it received on the Indonesian market, or at least have adjusted the Philippine prices on the basis of the factors pointed out to it by the Indonesian Government and by the applicant during the administrative procedure.

301 The Commission and Eurofer dispute the applicant’s arguments.

302 In that regard, it should be noted that the Commission concluded in recitals 435 and 437 of the contested regulation, at the end of the investigation in which it had to have recourse to the facts available, that the pricing of nickel ore was subject to a government mechanism that prevented the normal market dynamics of supply and demand and that, via the regulated price the Indonesian Government specifically intended to ensure that the price of nickel ore would yield a significant discount as compared to international market prices to the benefit of the Indonesian stainless steel industry. The Commission established that, via that mechanism, the Indonesian Government exercised meaningful control over the mining companies’ ability to otherwise set prices at a different level on the basis of normal market supply and demand.

303 According to recital 464 of the contested regulation, by subjecting mining companies to export restrictions for nickel ore, in combination with other government measures including, in particular, a price regulation that kept nickel ore prices artificially low, and domestic processing requirements resulting in oversupply and depressed prices, the Indonesian Government put the nickel miners into an economically irrational situation, forcing them to sell the nickel ore domestically for artificially depressed prices as compared to the substantially higher prices they could have obtained otherwise from many more potential customers. The nickel ore miners were therefore, according to the Commission’s analysis, deprived of a rational commercial choice, and induced to comply with the Indonesian Government’s policy objective to favour the domestic stainless steel industry.

304 The Commission therefore concluded, in recital 499 of the contested regulation, that there was ample evidence that the measures taken by the Indonesian Government were specifically intended to entrust or direct nickel mining companies to comply with the policy objectives to benefit the stainless steel industry in a manner amounting to a countervailable subsidy as specified under Article 3(1)(a)(iv) and (iii) of the basic regulation, as interpreted and applied in line with the relevant WTO standard under Article 1.1(a)(iii) and (iv) of the SCM Agreement.

305 In order to measure the benefit thus conferred on the recipients, the Commission first assessed whether prices set by mining companies in Indonesia could amount to an appropriate benchmark. However, it had already established that the pricing of nickel ore was subject to a pricing mechanism by the government and other government interventions that prevented the normal market dynamics of supply and demand to determine the price (recitals 503 and 504 of the contested regulation).

306 On the basis of the grounds set out in recitals 504 to 518 of the contested regulation, the Commission determined, first, that the Indonesian Government intervened in the nickel ore market by specifically regulating the transaction price for nickel ore between mining companies and smelters, with the result that that price was not a market price but a price set by the government with its specific policy objectives in mind. For that reason alone, the Commission took the view, in recital 519 of the contested regulation, that the nickel ore prices in Indonesia were distorted and could not be used as a benchmark for the purpose of determining benefit. Second, in recital 520 of that regulation, the Commission noted that that price fixing mechanism was not the only factor rendering Indonesian prices unusable for the purpose of the benefit analysis; there were also export restrictions and the obligation on smelters to process nickel ore in Indonesia, imposed by that government. In its view, those measures, coupled with specific production targets, resulted in oversupply in the domestic market and hence depressed domestic prices. No single transaction for nickel ore in Indonesia escaped the fact that the various market distortions directly or indirectly affected prices, resulting in all nickel ore prices in Indonesia being distorted. The Commission therefore concluded, in recital 521 of the contested regulation, that those measures affected the whole domestic nickel ore market, thus making it impossible to establish an undistorted price of that ore on the Indonesian market. Accordingly, there were no domestic prices which the Commission could use as an appropriate benchmark. In view of the many similarities between the nickel ore production conditions in Indonesia and the Philippines, the respective characteristics of that ore and the conditions under which it is marketed, the Commission considered that Philippine prices constituted an appropriate benchmark.

307 In so far as Article 6(d) of the basic regulation provides that the benchmark price must be determined or constructed preferably by using the market prices in the country of provision or by adjusting those prices before resorting to prices outside that country, it is necessary to analyse, in the first place, the applicant’s arguments based on the fact that data from the Indonesian market were not used to determine the benchmark for comparison.

308 In the present case, the applicant has not provided any evidence capable of demonstrating that the Commission’s finding in recital 529 of the contested regulation – that the level of cooperation from Indonesian nickel ore producers and the quality of the information provided were not sufficient to enable the benchmark to be determined on that basis – was implausible.

309 That finding is supported by the existence, which, moreover, is not disputed, of pervasive domestic distortions in the Indonesian nickel ore market, which affect the entire national market (paragraph 306 above).

310 In those circumstances, it cannot be held that the Commission made a manifest error of assessment by not establishing the benchmark on the basis of information from Indonesian nickel ore producers. Indeed, a benchmark, all parameters of which are influenced by the interventions of the Indonesian Government, cannot lead to a result representative of the undistorted situation of the beneficiary.

311 In the second place, point (ii) of the second subparagraph of Article 6(d) of the basic regulation does not provide for an obligation to adjust a reference determined outside the country of provision or purchase by factors capable of bringing it closer to the situation in the latter country (see paragraphs 286 to 296 above), in particular where the data in question are vitiated by the flaws listed by way of example in recital 6 of the basic regulation.

312 Nevertheless, the Commission replied, in recital 531 of the contested regulation, to the arguments of the applicant and of the Indonesian Government set out in recital 526 of that regulation.

313 The Commission, first of all, noted that the Indonesian Government and the applicant had not substantiated how the elements they had referred to concerning the differences in technical characteristics and output quantities between the Indonesian and the Philippine nickel ore impacted those Philippine prices, nor had they submitted any evidence attempting to quantify any possible adjustments resulting from those differences affecting the prices to the Philippines prices used as benchmark. Such evidence is, however, necessary in order to establish that an EU institution has committed a manifest error of assessment such as to justify the annulment of a measure (see, by analogy, judgment of 14 December 2022, PT Wilmar Bioenergi Indonesia and Others v Commission , T‑111/20, EU:T:2022:809, paragraph 210 and the case-law cited).

314 Next, the Commission stated, again in recital 531 of the contested regulation, as regards the claim that there is a different nickel content in Philippine nickel ore, that the benchmark it had used accounted for that difference, since it had constructed a benchmark for each type of nickel ore purchased by the IRNC Group. However, the applicant did not put forward before the General Court any argument, let alone evidence, capable of calling that assessment into question. Nor did it put forward any argument capable of demonstrating the need for an adjustment to the benchmark due to a higher output in Indonesia compared to that in the Philippines. In the absence of such evidence, the applicant cannot claim that the Commission committed a manifest error of assessment.

315 Lastly, the Commission correctly maintained that ‘as for the claim that the cost of production of nickel ore in Indonesia [was] lower than in the Philippines, as stated in recital [528 of the contested regulation,] the Indonesian nickel ore miners [had] not cooperated in the investigation and therefore the Commission was not able to assess such costs’.

316 In the third place, it is also necessary to endorse the Commission’s finding, in recital 531 of the contested regulation, that ‘the argument that the Indonesian export ban artificially depressed domestic Indonesian prices and also resulted in higher Philippines prices did not affect the fact that the Philippines prices represented an appropriate benchmark, because they reflected actual market prices of nickel ore resulting from all concurring market circumstances and regulatory choices of the various countries (including Indonesia) and thus did not undermine the actual market representativeness of these prices’.

317 Indeed, even after the interventions of the Indonesian Government, the Philippine free on board (FOB) price remains defined by the market that is not subject to such interventions, because it reflects the way in which the market – on which, in the absence of evidence to the contrary, the forces of supply and demand normally operate – reacted to that situation in Indonesia and its impact on the world market.

318 Furthermore, the Commission is correct to maintain that, if accepted, the applicant’s line of argument would lead to the conclusion that a benchmark outside the country of provision is unavailable whenever the measures adopted in that country influence the price on the international market.

319 The fourth part of the second plea must therefore be rejected.

The fifth part, concerning the provision of land for less than adequate remuneration

320 The applicant claims that the Commission committed three manifest errors in the light of Article 6(d) of the basic regulation.

321 In the first place, according to the applicant, a benchmark based on well-developed industrial land in the Gresik Regency in the province of East Java (Indonesia), valued in 2020, is not comparable to the value of an undeveloped plot in the Morowali Regency, owing to the significant differences in the geographical location, connectivity, development level of the region and the land itself.

322 In the second place, the Commission should not have applied the consumer price index (CPI) in order to adjust the benchmark price for the land in question.

323 In the third place, when calculating the benefit, the Commission used IMIP’s land acquisition and development costs as a comparator. However, those costs do not represent the price the IRNC Group paid IMIP to purchase the land.

324 Furthermore, the applicant maintains that, if a related company, such as IMIP, is involved in the production or sale of a product, for example by supplying inputs to the producer, the benefit which it receives must be regarded as that of the producer only if it was genuinely carried forward to the producer and only in proportion to the share of the benefit carried forward.

325 The Commission disputes the applicant’s arguments.

326 In that regard, as is apparent from recital 837 of the contested regulation, the Commission concluded that the Indonesian Government had provided land to IMIP, and therefore to the companies in the IRNC Group related to IMIP, for less than adequate remuneration. According to the Commission, the provision of that land conferred a benefit because IMIP simply paid an amount of compensation pre-agreed with the Indonesian Government’s officials for giving up occupation of the land, which was not connected to the actual value of the land or any market considerations. The Indonesian Government, the actual owner of the rights to the land, did not charge IMIP anything for the actual value of the land, as is apparent from recital 842 of the contested regulation.

327 In order to calculate the benefit received by the IRNC Group, the Commission used a country-wide benchmark, ‘Hak guna bangunan’ (HGB), namely the right to use and to build on a plot of land, drawn from an independent evaluation report for industrial land prepared for the other cooperating exporting producer, Jindal Indonesia, located in the Gresik Regency, an area comparable to the Morowali Regency in Central Sulawesi. An HGB is normally limited to 30 years, with a possible extension of 20 years, as is apparent from recitals 834 and 847 of the contested regulation, facts which are not contested by the applicant. The benefit was calculated as the difference between the value of the land established on the basis of that benchmark and the development costs incurred by IMIP to transform the land provided into industrial land. The value set out in the evaluation report for 2020 was adjusted using the CPI to obtain benchmarks for each year in which the IRNC Group purchased land, which then enabled the subsidy rate for that group to be calculated.

328 The applicant submits, in essence, in its first complaint, that the value of developed industrial land in the Gresik Regency is not comparable to the value in 2020 of undeveloped land in the Morowali Regency. First, the level of development of the respective regions is very different. Second, that was all the more so in 2014 when the IRNC Group purchased most of the plots of land. Third, although the land in the Gresik Regency was developed, the land in the Morowali Regency was not.

329 In recital 844 of the contested regulation, the Commission stated, with regard to the comparability of the two zones, that ‘the Gresik Regency [was] an area comparable to the Morowali Regency in Central Sulawesi because it [had] a similar [gross domestic product (GDP)], because of the presence of an industrial park and because [those regencies were] both far from the capital Jakarta, whose land prices [were] far different from the rest of the country’ and that ‘moreover, the value in the Jindal Indonesia’s evaluation report [was] a conservative estimate, since [that value concerned] only HGBs, whereas, as mentioned, IRNC Group [had] acquired from IMIP variably HGBs and full ownership rights, with a higher value compared to HGBs, on different plots of land.’

330 First, it should be noted that the applicant did not submit, during the administrative procedure, any evidence capable of challenging the Commission’s analysis referred to in paragraph 329 above. The evidence it submits in paragraph 85 of the reply, namely a link to a page of the website www.researchgate.net, cannot therefore be taken into account for the reasons set out in paragraphs 215 to 219 above.

331 In particular, the applicant did not provide any evidence during the administrative proceedings of the differences between the GDPs in the regencies of Gresik and Morowali. It did not adduce any evidence to show how GDP had evolved in real terms in those regencies.

332 In any event, it is important to note that the Commission’s comparability estimate takes into account the fact that the plots made available to IMIP were made available both in the form of HGB and in the form of full ownership, which undeniably has more value than a mere right to construct a building on land that is valid for only 30 years, with the possibility of a 20-year extension. Indeed, the applicant clearly states in paragraphs 170, 172 and 175 of the application, as well as in paragraph 85 of the reply, that it had ‘purchased’ the land in question.

333 It was for the applicant, or even the Indonesian Government, being best acquainted with the economic situation on the ground and its development, to provide the Commission with a detailed analysis, supported by appropriate evidence demonstrating that the benchmark set on the basis of the Gresik Regency does not faithfully reflect the value of land in the Morowali Regency, having regard to infrastructure development, GDP, the type of land right and the respective dates on which that land was provided or purchased. They could have provided evidence of the evolution of rental prices or freehold prices for industrial land in the two respective locations, but it does not appear from the arguments put forward by the applicant before the Court or from those set out in the contested regulation that they did so during the administrative procedure.

334 Second, in using 2020 as the starting point for establishing the price benchmarks for the years in which the land was made available, the Commission did not make an unreasonable choice, since the value of the HGB for the land in the Gresik Regency, which served as a reference, was established in 2020. Although the applicant submits that, in 2015, the GDP in the province in which Morowali is located was 36% lower than that of the province in which Gresik is located, it has already been found that the evidence in support of that claim was not provided during the administrative procedure, with the result that it cannot be taken into account before the Court (see paragraphs 215 to 219 above).

335 Moreover, in response to a question from the Court, the Commission convincingly justifies, with supporting evidence, its claim in paragraph 85 of the rejoinder that it was unable to obtain benchmark prices for industrial land during the specific years of acquisition, either from public sources or from the applicant and the Indonesian Government, demonstrating their lack of cooperation and constituting a further reason to reject the applicant’s claims.

336 Third, the Commission did indeed compare two developed plots of land. As regards the Morowali site, it stated, in recital 862 of the contested regulation, that it included in its calculation the original cost of the land, plus the development costs for that land, as reported by IMIP. The Commission does not dispute that it counted only land clearing as a development cost for that plot. However, the applicant does not dispute the Commission’s argument that the other costs for the development of their land in terms of access infrastructure were borne by the Indonesian Government and that it is normal in Indonesia for a large electricity consumer to build its own power plant, which was also the case for the steel company established in Gresik. In any event, the applicant did not submit, during the administrative procedure or before the Court (see paragraphs 215 to 219 above), any documents or specific data to support its argument that it, and not the Indonesian Government, had developed the land. In particular, it does not specify the amount it would itself have had to spend in order to develop the land in question.

337 The present complaint must therefore be rejected.

338 As regards the second complaint relating to the adjustment of the benchmark prices using the CPI, it is apparent from recital 845 of the contested regulation that, ‘in the calculation, … the value of the evaluation report referred to 2020’, that ‘therefore, [that value] was adjusted by the [CPI] to obtain the value in each year in which … the IRNC Group had purchased a plot of land’ and that ‘the amount of benefit was established by deducting the compensation paid by IMIP from the benefit found’. In response to the applicant’s argument, put forward during the administrative procedure, that the land was a capital good and not a consumption good, and thus the CPI did not include land prices, the Commission stated, in recital 864 of that regulation, that that index was ‘a good indication of the general price inflation in the economy as a whole, including in relation to land prices’, in so far as that index ‘[contained] among other factors rental prices, which provide a good indication of the evolution of land and real estate prices’.

339 The applicant argued, in essence, first, that the CPI was a country-wide index and therefore did not take into account differences in the speed of development in the regions. Second, it did not take into account the industrial leasing of land. Thus, the CPI was not appropriate for adjusting the benchmark price for the land in question.

340 In the present case, the applicant does not dispute the Commission’s assertion that the CPI was not used to determine the price of land in Morowali, but only to adjust the benchmark price over time. Although it puts forward several arguments with a view to casting doubt on its relevance, it has failed to demonstrate, as the Commission correctly maintains, that the evolution of rental prices for industrial land follows a dynamic different from that of housing for private individuals. In particular, it does not claim to have put forward, in the context of the administrative proceedings (see paragraphs 215 to 219 above), evidence to that effect. The same applies to the applicant’s argument regarding the differing speeds of development in the two regions (see paragraphs 330 and 334 above). Even though the applicant and the Indonesian Government are best placed to know the situation in Indonesia, they did not submit relevant information to the Commission, such as, for example, evidence of the evolution of prices in that domain.

341 The present complaint must therefore be rejected.

342 As regards the third complaint, it is apparent from recital 844 of the contested regulation that, in order to calculate the benefit conferred on the recipients, the Commission could not consider the compensation awarded as being comparable to prices paid for land transactions on the market and that, consequently, it took into account only the development costs incurred by IMIP to transform the land purchased as forest and plantation into land ready for industrial use.

343 The applicant submits, in essence, that that cost does not correspond to the price paid by the companies in the IRNC Group. It has not been proven that any benefit received by IMIP was passed through to them.

344 In the present case, the applicant does not, however, dispute that its land transactions with IMIP took place between related companies, with the result that the prices paid are not reliable, in the sense that they do not correspond to the market price. Moreover, the applicant does not dispute the Commission’s assertion in paragraph 172 of the defence that it is apparent from the applicant’s questionnaire response that IMIP’s internal price setting did not follow market principles, since all plots of land were resold at the same price, irrespective of the size or configuration of the plot, date of acquisition or the initial cost for IMIP, and that the plots leased to other companies in the IRNC Group were all rented out at the same price per square metre. It is therefore not unreasonable for the Commission to refer to the prices paid by the first related company of the IRNC Group to external persons.

345 The Commission was also right to take the view that it was not necessary to undertake an analysis of whether the benefit received by IMIP was passed through to the related companies, since that analysis applies only where the producer of the subsidised input operates at arm’s length with the user of that input, who is also a producer of the product concerned (judgment of 1 March 2023, Hengshi Egypt Fiberglass Fabrics and Jushi Egypt for Fiberglass Industry v Commission , T‑480/20, EU:T:2023:90, paragraph 56 (not published), as well as the Report of the Appellate Body of the WTO adopted on 17 February 2004 in the case entitled ‘United States – Final countervailing duty determination with respect to certain softwood lumber from Canada’ (WT/DS257/AB/R, paragraphs 143, 144 and 146, and footnote 176) and the Report of the Panel of the DSB of the WTO adopted on 20 December 2021 in the dispute entitled ‘United States – Anti-dumping and countervailing duties on ripe olives from Spain’ (WT/DS577/R, paragraphs 7.140, 7.147 and 7.154)). Not only were IMIP and the IRNC Group related, which does not suggest that the relations were subject to market rules, but it also follows from paragraph 344 above that the transactions in question clearly were not governed by the rules of the free market.

346 The present complaint and the fifth part of the second plea must therefore be rejected and, accordingly, that plea must be rejected in its entirety.

The third plea, alleging infringement of Article 7 (2) and Article 15 (1) and (2) of the basic regulation

347 The applicant maintains, in essence, that the Commission miscalculated the pass-through of the subsidies received in the form of the provision of nickel ore for less than adequate remuneration to the products forming the subject matter of the investigation. The present plea therefore concerns an Indonesian subsidy scheme and is not linked to the outcome of the assessment of the first plea, which concerns preferential financing of Chinese origin.

348 The applicant claims that, where a subsidy is granted in respect of inputs, and where it is alleged that it also indirectly subsidises a product processed downstream, the Commission is required to analyse if and to what extent the subsidies on inputs may have indirectly flowed to the processed product and may therefore be included in the determination of the total amount of subsidies granted to the investigated product. Unlike other forms of financial contributions, such as direct grants, the provision of goods for less than adequate remuneration is closely associated with the flow of the goods. Such a contribution is monetised only when the final products are sold.

349 In situations such as that in the present case, where only a part of the subsidised input is used in the production of the finished product, the Commission cannot proceed as if all the subsidised inputs are used in the production of the finished product.

350 The Commission disputes the applicant’s arguments.

351 In that regard, Article 7(2) of the basic regulation provides that ‘where the subsidy is not granted by reference to the quantities manufactured, produced, exported or transported, the amount of countervailable subsidy shall be determined by allocating the value of the total subsidy, as appropriate, over the level of production, sales or exports of the products concerned during the investigation period for subsidisation’.

352 It is clear from the provisions under the heading ‘(b) Appropriate denominator for allocation of subsidy amount’, which appears under the heading ‘F. Investigation period for subsidy – calculation expense versus allocation’ of the Information from the Commission – Guidelines for the calculation of the amount of subsidy in countervailing duty investigations (OJ 1998 C 394, p. 6; ‘the guidelines on the calculation of the subsidy’), that ‘(ii) for non-export subsidies the total sales (domestic plus export) should normally be used as the denominator, since such subsidies benefit both domestic and export sales’.

353 The detailed calculation method used by the Commission was disclosed to the IRNC Group in its specific subsidy disclosure document. On the first page of that document, contained in Annex B.1 to the defence, the Commission states the following:

[ confidential ]

354 The detailed calculation method in question was then explained by means of tables illustrating the calculations carried out by the Commission, which were annexed to that specific disclosure document. Those tables are set out in Annex A.21 to the application, but also in Annexes B.2 and B.3 to the defence.

355 Specifically, in order to establish the amount of the countervailable subsidies for the product concerned exported by the applicant to the European Union, the Commission began by determining the amount of the benefit directly granted to the applicant by comparing the actual domestic purchase price of nickel ore with the undistorted benchmark price in the Philippines, which gave the sum of [ confidential ]. It then divided that amount by IRNC’s turnover, giving rise to a [ confidential ]% rate of subsidisation conferred upon that company.

356 However, the Commission observed that the product concerned manufactured and exported by the applicant had also indirectly benefited from the subsidised nickel ore purchased by its related companies and passed on to it in the form of semi-finished products. In order to calculate the amount of subsidies granted for the product concerned exported by IRNC, it estimated how much of the subsidised nickel ore purchased by those related companies ended up in the product concerned. The benefit found in those related companies was allocated using the proportion of their turnover which directly or indirectly reached the exporting producer IRNC. The allocation key was the intra-group sales, that is to say, the turnover sales made by [ confidential ] to the exporting producer IRNC.

357 In particular, first, the Commission determined what percentage of the total turnover of [ confidential ] related to direct sales to IRNC. Second, the Commission established how much of the benefit reached the exporting producer IRNC in cases of multiple sales within the group, that is to say, in cases where for example one related company sold a processed semi-finished product to another related company which then sold another processed product to IRNC. Adding both direct and indirect transactions resulted in the allocation key per related company, [ confidential ]. Those percentages thus represented how much of the benefit obtained from the subsidised nickel ore ended up in the product concerned exported by IRNC. The amount of benefit so identified was then allocated using IRNC’s turnover, [ confidential ]. The total amount of subsidisation pertaining to nickel ore for the IRNC Group was set at 10.04%.

358 The subsidy amount for the entire group was then allocated to the turnover of the product concerned sold in the European Union by the exporting producer IRNC. The subsidy amount per tonne exported to the European Union was then divided by the CIF value per tonne exported to the European Union, to obtain the subsidy rate.

359 It is also apparent from recitals 533 to 535 of the contested regulation that, during the administrative procedure, the IRNC Group stressed that the applicant was selling the purchased nickel ore within that group and therefore no benefit deriving from that ore should be included in the calculation of the benefit. The Commission confirmed that it took into account both of those aspects in the calculation of the amount of subsidisation for that group. It noted that, for the related suppliers on inputs, the benefit found in those companies was allocated using the proportion of their turnover which related to the exporting producer and that that allocated benefit was then added to the benefit of the exporting producer and included in the subsidy calculations of this producer. At the level of the exporting producer, the denominator of the benefit was the total turnover of the company. The Commission noted that the end-use of the nickel ore, whether for the product concerned or for sales to related companies for further processing, was irrelevant because, in the calculation of the subsidy rate, the denominator was the total turnover of IRNC. It therefore rejected the applicant’s claim.

360 The applicant’s criticism before the Court concerns only one aspect of the calculation or the detailed calculation method in question, namely the failure to reduce the direct benefit received by the applicant on account of the supply of nickel ore to it for less than adequate remuneration. The determination of the indirect benefit and the remainder of the calculation are not contested.

361 In support of the criticism in question, the applicant relies on a Report of the Panel of the DSB of the WTO adopted on 5 March 2020 in the dispute entitled ‘United States – Countervailing Measures on Supercalendered Paper from Canada’ (WT/DS505/R, paragraph 7.237), which states as follows:

‘There may be circumstances where it is reasonable for an investigating authority to proceed as if the totality of subsidised inputs produced by an entity are used in the production of a finished product, without necessarily proving that this is the case. However, this will not be the case in circumstances where record evidence indicates that only a very small amount of the subsidised input produced by an entity is in fact used in the production of the finished product. In such circumstances, assuming that all inputs are used in the production of the finished product would be at odds with the requirement to ascertain as accurately as possible the amount of subsidisation bestowed on the investigated product.’

362 The applicant submits that that is the case here, in so far as [ confidential ].

363 Nevertheless, it follows from the judgment of 1 March 2023, Hengshi Egypt Fiberglass Fabrics and Jushi Egypt for Fiberglass Industry v Commission (T‑480/20, EU:T:2023:90, paragraph 56 (not published)), from the Report of the Appellate Body of the WTO adopted on 17 February 2004 in the case entitled ‘United States – Final Countervailing Duty Determination with respect to certain Softwood Lumber from Canada’ (WT/DS257/AB/R, paragraphs 143, 144 and 146, and footnote 176), and from the Report of the Panel of the DSB of the WTO adopted on 20 December 2021 in the dispute entitled ‘United States – Anti-Dumping and Countervailing Duties on Ripe Olives from Spain’ (WT/DS577/R, paragraphs 7.140, 7.147 and 7.154), that an analysis of whether the benefit received by the supplier of the input was passed through to the entity that processes that input into the product concerned is necessary only if the two undertakings operate at arm’s length with one another.

364 That is not the case here, since the applicant and [ confidential ] both belong to the IRNC Group and to the Tsingshan Group, with the result that the condition laid down in the reports referred to in paragraph 363 above is not satisfied.

365 Moreover, there is no evidence or guarantee that the benefit received by IRNC as a result of the provision of nickel ore for less than adequate remuneration followed [ confidential ]. On the contrary, it was found during the examination of the fifth part of the second plea that the prices charged in the context of transactions between the companies related to the applicant could not be considered to be at arm’s length.

366 In the reply, the applicant does not dispute the decision-making practice of the DSB of the WTO referred to in paragraph 363 above. It notes, however, that it is apparent from paragraph 7.331 of the Report of the Panel of the DSB of the WTO adopted on 20 December 2021 in the dispute entitled ‘United States – Anti-Dumping and Countervailing Duties on Ripe Olives from Spain’ (WT/DS577/R) that ‘under the terms of Article VI:3 [of GATT 1994], an investigating authority considering how to countervail indirect subsidies must analyse whether and to what extent subsidies on inputs may have indirectly flowed to the processed product and, thereby, be included in the determination of the total amount of subsidies bestowed on the investigated product. An investigating authority is required to make this determination in order to ensure that countervailing duties are not applied in an amount that is in excess of the estimated subsidy determined to have been granted to the investigated product’.

367 However, the first sentence of the extract from paragraph 7.331 of the Report of the Panel of the DSB of the WTO adopted on 20 December 2021 in the dispute entitled ‘United States – Anti-Dumping and Countervailing Duties on Ripe Olives from Spain’ (WT/DS577/R), set out in paragraph 366 above, is accompanied by footnote 723, which refers to section 7.3.1.1 of that report, in which it is stated, in paragraph 7.147, referred to in paragraph 363 above, that ‘there is no disagreement between the parties that where a producer of the upstream input product operates at arm’s length from the producer of the downstream product produced using the upstream input, an investigating authority is required, under Article VI:3 of the GATT 1994 and Article 10 of the SCM Agreement, to establish that the benefit of the subsidy provided directly in respect of the upstream product has been passed-through to the downstream product in order to levy countervailing duties on imports of the downstream product’.

368 The applicant also maintains that an analysis of the pass-through of the benefit was necessary in so far as the benefit consisted, in fact, of a subsidy in relation to an input and necessarily followed that input, unlike a direct subsidy, and indeed that the benefit associated with that input was not capitalised until the final product incorporating it was sold.

369 Such an argument must, however, be rejected, since a certain sum received directly is entirely equivalent to the same sum saved when making a purchase for less than adequate remuneration. In its effects, a gift is equal to a saving and the recipient can use it as he, she or it sees fit. Furthermore, within a group of companies, any benefit received can be passed through to the finished product in several ways.

370 The applicant is therefore wrong to claim that the subsidy it received directly as a result of the provision of nickel ore for less than adequate remuneration should be reduced to [ confidential ]%, which corresponds to [ confidential ].

371 Furthermore, it is necessary to uphold the Commission’s argument corresponding to recital 535 of the contested regulation, that, given that the subsidy received applied equally to all of IRNC’s products as a percentage of its total turnover, the end use of the nickel ore purchased by IRNC, whether for the product concerned or for [ confidential ], is irrelevant, since, in the calculation of the subsidy rate, the denominator is IRNC’s total turnover, that is to say, [ confidential ], including sales on the domestic market and on the export market, whether [ confidential ]. Consequently, the denominator used in the investigation already included [ confidential ]’s sales of [ confidential ], which the applicant wishes to analyse separately in order to apportion the benefit.

372 If [ confidential ] were to be excluded from the calculation, that would reduce the turnover in the denominator but also, in the same proportion, the amount of aid corresponding to the numerator, which would lead to the same result.

373 In any event, the subsidy in question is not granted by reference to the quantities manufactured, produced, exported or transported. It follows from the passage of the guidelines cited in paragraph 352 above that, for non-export subsidies, the total sales (domestic plus export) should normally be used as the denominator, since such subsidies benefit both domestic and export sales. However, the method proposed by the applicant would eliminate the portion relating [ confidential ].

374 Accordingly, the third plea in law must be rejected and the action must therefore be dismissed in its entirety.

Costs

375 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.

376 Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those of the Commission, in accordance with the form of order sought by the latter.

377 Moreover, under Article 138(3) of the Rules of Procedure, the Court may order an intervener other than those referred to in paragraphs 1 and 2 of that article to bear its own costs. In the present case, it is appropriate to decide that Eurofer is to bear its own costs.

On those grounds,

THE GENERAL COURT (Third Chamber, sitting with five Judges)

hereby:

1. Dismisses the action;

2. Orders PT Indonesia Ruipu Nickel and Chrome Alloy to bear its own costs and to pay those incurred by the European Commission;

3. Declares that Eurofer, European Steel Association, AISBL is to bear its own costs.

Delivered in open court in Luxembourg on 9 September 2026.

* Language of the case: English.

1 Confidential information redacted.