(1)

On 23 March 2006, the Commission adopted Regulation (EC) No 553/2006 (2) imposing provisional anti-dumping measures on imports of certain footwear with uppers of leather (‘footwear’) originating in the People's Republic of China (‘PRC’ or ‘China’) and Vietnam (‘the provisional Regulation’).

(2)

By Regulation (EC) No 1472/2006 (3) the Council imposed definitive anti-dumping duties ranging from 9,7 % to 16,5 % on imports of certain footwear with uppers of leather, originating in Vietnam and in the PRC for two years (‘Regulation (EC) No 1472/2006’ or ‘the contested Regulation’).

(3)

By Regulation (EC) No 388/2008 (4) the Council extended the definitive anti-dumping measures on imports of certain footwear with upper leather originating in the PRC to imports consigned from the Macao Special Administrative Region (‘SAR’), whether declared as originating in the Macao SAR or not.

(4)

Further to an expiry review initiated on 3 October 2008 (5), the Council further extended the anti-dumping measures for 15 months by Implementing Regulation (EU) No 1294/2009 (6), i.e. until 31 March 2011, when the measures expired (‘Implementing Regulation (EU) No 1294/2009’).

(5)

Brosmann Footwear (HK) Ltd, Seasonable Footwear (Zhongshan) Ltd, Lung Pao Footwear (Guangzhou) Ltd and Risen Footwear (HK) Co. Ltd as well as Zhejiang Aokang Shoes Co. Ltd (‘the applicants’) challenged the contested Regulation in the Court of First Instance (now: the General Court). By judgments of 4 March 2010 in Case T-401/06 Brosmann Footwear (HK) and Others v Council [2010] ECR II-671 and of 4 March 2010 in Joined Cases T-407/06 and T-408/06 Zhejiang Aokang Shoes and Wenzhou Taima Shoes v Council [2010] ECR II-747, the General Court rejected those challenges.

(6)

The applicants appealed those judgments. In its judgments of 2 February 2012 in case C-249/10 P Brosmann et al and of 15 November 2012 in case C-247/10P Zhejiang Aokang Shoes Co. Ltd (‘the Brosmann and Aokang judgments’), the Court of Justice set aside those judgments. It held that the General Court erred in law in so far as it held that the Commission was not required to examine requests for market economy treatment (‘MET’) under Article 2(7)(b) and (c) of the basic Regulation from non-sampled traders (paragraph 36 of the judgment in Case C-249/10 P and paragraph 29 and 32 of the judgment in Case C-247/10 P).

(7)

The Court of Justice then gave judgment itself in the matter. It held: ‘[…] the Commission ought to have examined the substantiated claims submitted to it by the appellants pursuant to Article 2(7)(b) and (c) of the basic regulation for the purpose of claiming MET in the context of the anti-dumping proceeding [which is] the subject of the contested regulation. It must next be found that it cannot be ruled out that such an examination would have led to a definitive anti-dumping duty being imposed on the appellants other than the 16,5 % duty applicable to them pursuant to Article 1(3) of the contested regulation. It is apparent from that provision that a definitive anti-dumping duty of 9,7 % was imposed on the only Chinese trader in the sample which obtained MET. As is apparent from paragraph 38 above, had the Commission found that the market economy conditions prevailed also for the appellants, they ought, when the calculation of an individual dumping margin was not possible, also to have benefited from the same rate’ (paragraph 42 of the judgment in Case C-249/10 P and paragraph 36 of the judgment in Case C-247/10 P).

(8)

As a consequence, it annulled the contested Regulation, in so far as it relates to the applicants concerned.

(9)

In October 2013, the Commission by means of notice published in the Official Journal of the European Union (7) announced that it had decided to resume the anti-dumping proceeding at the very point at which the illegality occurred and to examine whether market economy conditions prevailed for the applicants for the period from 1 April 2004 to 31 March 2005 and invited interested parties to come forward and make themselves known.

(10)

In March 2014, the Council, by Implementing Decision 2014/149/EU (8), rejected a Commission proposal to adopt a Council Implementing Regulation reimposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on certain footwear with uppers of leather originating in the People's Republic of China and produced by Brosmann Footwear (HK) Ltd, Seasonable Footwear (Zhongshan) Ltd, Lung Pao Footwear (Guangzhou) Ltd, Risen Footwear (HK) Co. Ltd and Zhejiang Aokang Shoes Co. Ltd and terminated the proceedings with regard to these producers. The Council took the view that importers having bought shoes from those exporting producers, to whom the relevant customs duties had been reimbursed by the competent national authorities on the basis of Article 236 of Council Regulation (EEC) No 2913/92 (9) (‘the Community Customs Code’), had acquired legitimate expectations on the basis of Article 1(4) of the contested Regulation, which had rendered the provisions of the Community Customs Code (10), and in particular its Article 221, applicable to the collection of the duties.

(11)

Three importers of the product concerned, C & J Clark International Ltd (‘Clark’), Puma SE (‘Puma’) and Timberland Europe BV (‘Timberland’) (‘the importers concerned’) challenged the anti-dumping measures on imports of certain footwear from China and Vietnam invoking the jurisprudence mentioned in recitals (5) to (7) before their national Courts, which referred the matters to the Court of Justice for a preliminary ruling.

(12)

In the Joined Cases C-659/13 C & J Clark International Limited and C-34/14 Puma SE, the Court of Justice declared Regulation (EC) No 1472/2006 and Implementing Regulation (EU) No 1294/2009 invalid in so far as the European Commission did not examine the MET and individual treatment (‘IT’) claims submitted by exporting producers in the PRC and Vietnam that were not sampled (‘the judgments’), contrary to the requirements laid down in Articles 2(7)(b) and 9(5) of Council Regulation (EC) No 384/96 (11).

(13)

Regarding the third case C-571/14, Timberland Europe BV against Inspecteur van de Belastingdienst, kantoor Rotterdam Rijnmond, the Court of Justice decided on 11 April 2016 to remove the case from the register at the request of the referring national court.

(14)

Article 266 TFEU provides that the Institutions must take the necessary measures to comply with the Court's judgments. In case of annulment of an act adopted by the Institutions in the context of an administrative procedure, such as anti-dumping, compliance with the Court's judgment consists in the replacement of the annulled act by a new act, in which the illegality identified by the Court is eliminated (12).

(15)

According to the case-law of the Court, the procedure for replacing the annulled act may be resumed at the very point at which the illegality occurred (13). That implies in particular that in a situation where an act concluding an administrative procedure is annulled, that annulment does not necessarily affect the preparatory acts, such as the initiation of the anti-dumping procedure. In a situation where a Regulation imposing definitive anti-dumping measures is annulled, that means that subsequent to the annulment, the anti-dumping proceeding is still open, because the act concluding the anti-dumping proceeding has disappeared from the Union legal order (14), except if the illegality occurred at the stage of initiation.

(16)

Apart from the fact that the Institutions did not examine the MET and IT claims submitted by exporting producers in the PRC and Vietnam that were not sampled, all other findings made in Regulation (EC) No 1472/2006 and Implementing Regulation (EU) No 1294/2009 remain valid.

(17)

In the present case, the illegality occurred after initiation. Hence, the Commission decided to resume the present anti-dumping proceeding that was still open following the judgments at the very point at which the illegality occurred and to examine whether market economy conditions prevailed for the exporting producers concerned for the period from 1 April 2004 to 31 March 2005, which was the investigation period in the investigation that led to the imposition of definitive duties mentioned in recitals (1) and (2) (‘the original investigation’). The Commission also examined, where appropriate, whether the exporting producers concerned qualified for IT in accordance with 9(5) of Council Regulation (EC) No 1225/2009 (15) (the ‘basic Regulation prior to its amendment’) (16).

(18)

By Commission Implementing Regulation (EU) 2016/1395 (17), the Commission reimposed a definitive anti-dumping duty and collected definitely the provisional duty imposed on imports of Clark and Puma of certain footwear with uppers of leather originating in the PRC and produced by thirteen Chinese exporting producers that submitted MET and IT claims in the investigation that lead to the imposition of definitive duties (the ‘original investigation’) but that had not been sampled during that investigation.

(19)

By Commission Implementing Regulation (EU) 2016/1647 (18), the Commission reimposed a definitive anti-dumping duty and collected definitely the provisional duty imposed on imports of Clark, Puma and Timberland of certain footwear with uppers of leather originating in Vietnam and produced by certain Vietnamese exporting producers that submitted MET and IT claims in the original investigation, but had not been sampled during that investigation.

(20)

Subsequently, two additional suppliers of Puma in Vietnam, Diamond Vietnam Co. Ltd and Ty Hung Footgearmex/Footwear Co. Ltd (‘Ty Hung Co. Ltd’) were identified that provided MET/IT claim forms during the original investigation. Concerning Ty Hung Co. Ltd it is noted that in Puma's file before the national Court, one of the Vietnamese suppliers was identified as ‘Lac Hung Co. Ltd’, while the information available pointed to a possible name change between the original investigation and the application before the national Court. It appeared that the company at stake was formerly named ‘Ty Hung Footgearmex/Footwear Co. Ltd’ (‘Ty Hung Co. Ltd’).

(21)

Regarding imports of Timberland one of the two Chinese suppliers identified in the case C-571/14, General Shoes Ltd was in fact established in Vietnam and assessed as such. Findings with regard to this company were published by the abovementioned Implementing Regulation (EU) 2016/1647 (recital (19)). This was contested by the Federation of the European Sporting Goods Industry (‘FESI’) that claimed that General Shoes Ltd was in fact a Chinese supplier. FESI claimed that the MET/IT request of the Chinese company General Footwear Ltd should also be assessed. The Commission notes that although the relevant MET/IT claim form was ambiguous as to whether the company at stake is in fact Chinese or Vietnamese, for the sake of completeness the MET/IT claim form of General Footwear Ltd was now also assessed.

(22)

For imports of Puma and Timberland from China and Vietnam the Commission assessed the MET and IT claims provided by the relevant abovementioned non-sampled exporting producers that submitted these claims in the original investigation.

(23)

The Commission has the possibility to remedy the aspects of the contested Regulation which led to its annulment, while leaving unchanged the parts of the assessment which are not affected by the judgment (19).

(24)

The present Regulation seeks to correct the aspects of the contested Regulation found to be inconsistent with the basic Regulation, and which thus led to the declaration of invalidity in so far as certain exporting producers from Vietnam and the PRC are concerned.

(25)

All other findings made in the contested Regulation, which were not declared invalid by the Court of Justice, remain valid and are herewith incorporated into the present Regulation.

(26)

Therefore, the following recitals are limited to the new assessment necessary in order to comply with the judgments.

(27)

The Commission has examined whether MET and IT prevailed for the three exporting producers, suppliers of Puma and Timberland, mentioned above in recitals (20) and (21) which submitted MET/IT requests in the original investigation, during the period from 1 April 2004 to 31 March 2005. The purpose of this determination is to ascertain the extent to which the two importers concerned are entitled to receive a repayment of the anti-dumping duty paid with regard to anti-dumping duties paid on exports of these suppliers.

(28)

Should the analysis reveal that MET or IT was to be granted to the Chinese and Vietnamese exporting producers concerned whose exports were subject to the anti-dumping duty paid by either of the two importers concerned, an individual duty rate would have to be attributed to that exporting producer and the repayment of the duty would be limited to an amount corresponding to a difference between the duty paid and the individual duty rate, i.e. in case of China, the difference between 16,5 % and the duty imposed on the only exporting company in the sample that has obtained MET, i.e. Golden Step, namely 9,7 %; and in in case of Vietnam, the difference between 10 % and the individual duty rate calculated for the exporting producer concerned, if any.

(29)

Conversely, should the analysis of such MET and IT claims reveal that both MET and IT should be rejected, no repayment of anti-dumping duties can be awarded.

(30)

As explained in recital (12), the Court of Justice annulled the contested Regulation and Implementing Regulation (EU) No 1294/2009 with regard to exports of certain footwear from certain Chinese and Vietnamese exporting producers, (‘the exporting producers concerned’), in so far as the Commission did not examine the MET and IT claims submitted by the exporting producers concerned.

(31)

The Commission has therefore examined the MET and IT claims of exporting producers concerned in order to determine the duty rate applicable to their exports. The assessment showed that the information provided was not sufficient to demonstrate that the exporting producers concerned operated under market economy conditions or that they qualified for individual treatment (see for a detailed explanation below recitals (32) and following).

(32)

It is necessary to point out that the burden of proof lies with the producer wishing to claim MET under Article 2(7)(b) of the basic Regulation. To that end, the first subparagraph of Article 2(7)(c) provides that the claim submitted by such a producer must contain sufficient evidence, as laid down in that provision, that the producer operates under market economy conditions. Accordingly, there is no obligation on the Union institutions to prove that the producer does not satisfy the conditions laid down for the recognition of such status. On the contrary, it is for the Union institutions to assess whether the evidence supplied by the producer concerned is sufficient to show that the criteria laid down in the first subparagraph of Article 2(7)(c) of the basic Regulation are fulfilled in order to grant it MET and it is for the Union judicature to examine whether that assessment is vitiated by a manifest error (paragraph 32 of the judgment in Case C-249/10 P and paragraph 24 of the judgment in Case C-247/10 P).

(33)

In accordance with Article 2(7)(c) of the basic Regulation all five criteria listed in this Article should be met so that an exporting producer can be granted MET. Therefore, the Commission considered that the failure to meet at least one criterion was enough to reject the MET request.

(34)

None of the exporting producers concerned was able to demonstrate that it met criteria 1 (Business decisions). More specifically, the information provided by each of the three exporting producers indicated that business decision were not made in response to market signals reflecting supply and demand without significant State interference.

(35)

As concerns criterion 2 (Accounting), two companies (Companies 1 and 2) did not meet this criterion. The accounts of both companies showed deficiencies and were not in compliance with international accounting standards. Thus, certain expenses were wrongly classified as an asset while they should have been booked as an expense in the period concerned (Company 2), while in another case, the auditors notes observed that the financial accounts are not in accordance with accounting rules and principles in countries outside the country concerned. Regarding Company 3, it submitted one set of basic accounting records which were independently audited in line with international accounting standards.

(36)

Regarding criterion 3 (Assets and ‘carry-over’), none of the three exporting producers concerned could show that no distortions are carried over from the former non-market economy system. None of the exporting producers provided complete information (e.g. evidence of the rental or lease contract, information concerning terms, prices and payments or capital verification reports) to demonstrate that no distortions were carried over from the non-market economy system.

(37)

For the reasons set out in recital (32), following the failure to meet criterion 1 and criterion 3 by any of the exporting producers and criterion 2 by two of the exporting producers, criteria 4 (Bankruptcy and property laws) and 5 (Exchange rate conversions) were not assessed.

(38)

On the basis of the above, the Commission concluded that none of the three exporting producers concerned should be granted MET and informed the exporting producers concerned accordingly, which were invited to provide comments. No comments were received from any of the three exporting producers concerned.

(39)

Therefore, none of the three exporting producers concerned fulfilled all the conditions set out in Article 2(7)(c) of the basic Regulation and MET is, as a result, denied for all of them.

(40)

Pursuant to Article 9(5) of the basic Regulation prior to its amendment, where Article 2(7)(a) of the same Regulation applies, an individual duty shall however be specified for the exporters which can demonstrate that they meet all criteria set out in Article 9(5) of the basic Regulation prior to its amendment.

(41)

As mentioned in recital (32) it is necessary to point out that the burden of proof lies with the producer wishing to claim IT under Article 9(5) of the basic Regulation prior to its amendment. To that end, the first subparagraph of Article 9(5) provides that the claim submitted must be properly substantiated. Accordingly, there is no obligation on the Union institutions to prove that the exporter does not satisfy the conditions laid down for the recognition of such status. On the contrary, it is for the Union Institutions to assess whether the evidence supplied by the exporter concerned is sufficient to show that the criteria laid down in Article 9(5) of the basic Regulation prior to its amendment are fulfilled in order to grant IT.

(42)

In accordance with Article 9(5) of the basic Regulation prior to its amendment, exporters should demonstrate on the basis of a properly substantiated claim that all five criteria listed in this Article are met so that they can be granted IT.

(43)

Therefore, the Commission considered that the failure to meet at least one criterion was enough to reject the IT claim.

(44)

The five criteria are the following:

(45)

All three exporting producers concerned that requested MET also claimed IT in the event that they would not be granted MET.

(46)

None of the three exporting producers concerned was able to demonstrate that they met Criterion 2 (Export sales and prices freely determined). More specifically, for two of the exporting producers concerned (Companies 1 and 2) the business license set a limitation to sales quantities on specific markets, while for the third company (Company 3) the Articles of Association stipulated a limitation in output as well as a limitation to sales quantities on specific markets. Therefore they failed to demonstrate that business decisions, such as export quantities are freely determined and made in response to market signals reflecting supply and demand.

(47)

As regards Criterion 3 (Company — key management and shares — is sufficiently independent from State interference), Company 1 could not show that it is subject to the payment of a rent for the use of land, while the financial statement indicated that it was exempted from such payments for a certain period. Regarding Company 2, it provided contradictory information and the contribution of the shareholder regarding the factory, infrastructure and the initial expenses related to land were unclear. Finally, Company 3 did not provide any evidence on the rental contract for the land and no information about terms, prices and payments. In addition, for all three companies, it was established that there were limitations in their business scope. On this basis, none of the three exporting producers concerned showed that it was sufficiently independent from State interference.

(48)

Therefore, none of the three exporting producers concerned fulfilled the conditions set out in Article 9(5) of the basic Regulation prior to its amendment and the Commission informed the exporting producers concerned accordingly, which were invited to provide comments. No comments were received from any of the three exporting producers concerned and IT was, as a result, denied to all of them.

(49)

The residual anti-dumping duty applicable to China should therefore be imposed for exports made by General Footwear Ltd and the residual duty applicable for Vietnam for exports made by Diamond Vietnam Co. Ltd and Ty Hung Footgearmex/Footwear Co. Ltd (‘Ty Hung Co. Ltd’) for the period of application of Council Regulation (EC) No 1472/2006. The period of application of that Regulation was initially from 7 October 2006 until 7 October 2008. Following the initiation of an expiry review, it was prolonged on 30 December 2009 until 31 March 2011. The illegality identified in the judgments is that the Union Institutions failed to establish whether the products produced by the exporting producers concerned should be subject to the residual duty or to an individual duty. On the basis of the illegality identified by the Court, there is no legal ground for completely exempting the products produced by the exporting producers concerned from paying any anti-dumping duty. A new act remedying the illegality identified by the Court therefore only needs to reassess the applicable anti-dumping duty rate, and not the measures themselves.

(50)

Since it is concluded that the residual duty should be reimposed in respect of the exporting producers concerned at the same rate as originally imposed by the contested Regulation and Implementing Regulation (EU) No 1294/2009, no changes are required to Regulation (EC) No 388/2008. That Regulation remains valid.

(51)

The exporting producers concerned and all parties that came forward were informed of the essential facts and considerations on the basis of which it was intended to recommend the reimposition of the definitive anti-dumping duty on imports of the fourteen exporting producers concerned. They were granted a period within which to make representations subsequent to disclosure.

(52)

The above findings and conclusions were disclosed to the interested parties which were given a time period to comment. FESI (20), as well as Wolverine Europe BV, Wolverine Europe Limited and Damco Netherlands BV (21), and Skechers, came forward and provided comments.

(53)

FESI claimed that there were a number of procedural errors in the current implementation. They pointed to the fact that the MET claims of the three Chinese and Vietnamese exporting producers concerned were already examined and disclosed prior to the judgment of the Court of Justice in the Joined Cases C-659/13 C & J Clark International Limited and C-34/14 Puma SE, i.e. on 3 December 2015, as well as the Commission's intention to reimpose a definitive anti-dumping duty on imports of footwear of 16,5 % and 10 % respectively. These assessments would therefore have been carried out without legal basis and were pre-empting the up-coming judgment of the Court of Justice. In conclusion, FESI argued that the Commission violated the basic legal framework of the EU and thus exercised an abuse of its powers.

(54)

The Commission does not agree with the above claims as it only prepared the implementation of a possible future judgment. Such preparation was to ensure sound administration, for the following reasons: First, it is uncontested that the Commission ought to have examined the MET/IT requests. The only issue that was at stake in the Court proceedings still pending at that time was whether an unrelated importer such as Puma and Timberland can rely on that illegality. As a result of that yes/no binary choice, the Commission could exceptionally prepare for the event of a negative judgment on this question. Second, swift implementation was necessary in order to enable national customs authorities to deal quickly with pending requests for reimbursement, and to provide legal certainty for all operators. Any influence on the Court's judgment was excluded, as that judgment concerned a different subject-matter (namely whether importers can rely on the right to have MET/IT claims assessed vested in exporting producers).

(55)

Consequently, all the claims regarding procedural irregularities were rejected.

(56)

FESI claimed that there was no legal basis for the current implementation. In particular FESI claimed that Article 266 TFEU is not applicable on the grounds that the definitive measures on footwear expired on 31 March 2011 and that there are therefore no continued effects ensuing from the illegality of these measures. FESI argued that Article 266 TFEU is not intended to correct retroactively illegalities to expired measures. This view would be reinforced by Articles 263 and 265 TFEU which set time limits for bringing actions against illegal acts and failure to act on the part of the Union Institutions. FESI further claimed that the current approach does not have any precedents and that the Commission did also not provide any reasoning or prior jurisprudence which would support its interpretation of Article 266 TFEU.

(57)

FESI also argued that in this case the investigation cannot be resumed at the very point where the illegality occurred under Article 266 TFEU because the Court of Justice did not merely establish a lack of reasoning but the illegality concerned a core legal provision of the basic Regulation affecting the entire assessment of dumping related to the exporting producers concerned.

(58)

FESI claimed further that the retroactive correction of expired measures violates the principle of protection of legitimate expectations. FESI argued that first, parties would have received assurance that the measures expired on 31 March 2011 and that given the time elapsed since the original investigation, parties were entitled to have justified expectations that the original investigation will not be resumed or reopened. Secondly, the very fact that during the original investigation MET claims were not investigated within the 3 months deadline provided legal certainty to the Vietnamese and Chinese exporting producers that their MET claims will indeed not be reviewed. In conclusion, the parties claimed that given the long time periods involved, the resumption of the investigation violated the universal principle of prescription or limitation which applies in all legal contexts.

(59)

FESI further argued that neither Article 266 TFEU, nor the basic Regulation permit the retroactive reimposition of the definitive duty of 10 % and 16,5 % respectively to imports of the Vietnamese and Chinese exporting producers concerned.

(60)

As regards the claim that the measures in question expired on 31 March 2011, the Commission fails to see why the expiry of the measure would be of any relevance for the possibility for the Commission to adopt a new act to replace the annulled act following a judgment annulling the initial act. According to the case-law referred to in recital (15) above, the administrative procedure should be resumed at the point in time where the illegality occurred.

(61)

The anti-dumping proceedings are hence, as a result of the annulment of the act concluding the proceedings, still open. The Commission is under an obligation to close those proceedings; Article 9 of the basic Regulation provides that an investigation has to be closed by an act of the Commission.

(62)

As to the claim concerning retroactivity based on Article 10 of the basic Regulation and Article 10 of the WTO Anti-Dumping Agreement (‘WTO ADA’), Article 10(1) of the basic Regulation, which follows the text of Article 10(1) of the WTO ADA, stipulates that provisional measures and definitive anti-dumping duties shall only be applied to products which enter free circulation after the time when the decision taken pursuant to Article 7(1) or 9(4) of the basic Regulation, as the case may be, enters into force. In the present case, the anti-dumping duties in question are only applied to products which entered into free circulation after the provisional and the contested (definitive) Regulation taken pursuant to 7(1) and 9(4) of the basic Regulation respectively had entered into force. Retroactivity in the sense of Article 10(1) of the basic Regulation, however, refers only to a situation where the goods were introduced into free circulation before measures were introduced, as can be seen from the very text of that provision as well as from the exception for which Article 10(4) of the basic Regulation provides.

(63)

The Commission also observes that there is neither retroactivity nor violation of legal certainty and legitimate expectations involved in the present case.

(64)

As to retroactivity, the case-law of the Court distinguishes, when assessing whether a measure is retroactive, between the application of a new rule to a situation that has become definitive (also referred to as an existing or definitively established legal situation) (22), and a situation that started before the entry into force of the new rule, but which is not yet definitive (also referred to as a temporary situation) (23).

(65)

In the present case, the situation of the imports of the products concerned that occurred during the period of application of Regulation (EC) No 1472/2006 has not yet become definitive, because, as a result of the annulment of the contested Regulation, the anti-dumping duty applicable to them has not yet been definitively established. At the same time, importers of footwear were warned that such a duty may be imposed by the publication of the Notice of Initiation (24) and the provisional Regulation. It is standing case-law of the Union Courts that operators cannot acquire legitimate expectations until the Institutions have adopted an act closing the administrative procedure, which has become definitive (25).

(66)

The present Regulation constitutes immediate application to the future effects of a situation that is ongoing: The duties on footwear have been levied by national customs authorities. As a result of the requests for reimbursement, which have not been decided in a definitive way, they constitute an ongoing situation. The present Regulation sets out the duty rate applicable to those imports, and hence regulates the future effects of an ongoing situation.

(67)

In any event, even if there was retroactivity in the sense of Union law, quod non, such retroactivity would in any event be justified, for the following reason:

(68)

The substantive rules of Union law may apply to the situations existing before their entry into force in so far as it clearly follows from their terms, objectives or general scheme that such effect must be given to the them (26). In particular, in case C-337/88 Società agricola fattoria alimantare (SAFA) (27) it was held that: [A]lthough in general the principle of legal certainty precludes a Community measure from taking effect from a point in time before its publication, it may exceptionally be otherwise where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected.

(69)

In the present case the purpose is to comply with the obligation of the Commission pursuant to Article 266 TFEU. Since, in the judgments referred to in recital (12) above, the Court only found an illegality with regards to the determination of the applicable duty rate, and not with regards to the imposition of the measures themselves (that is, with regards to the finding of dumping, injury and Union interest), the exporting producers concerned could not have legitimately expected that no definitive anti-dumping measures would be imposed. Consequently, that imposition, even if it was retroactive, quod non, cannot be construed as breaching legitimate expectations.

(70)

In addition, with regards to the protection of legal certainty and of legitimate expectations, it is first of all observed that according to the case-law, importers cannot claim the protection of legal certainty and legitimate expectations where they were alerted of an imminent change in the Union's commercial policy (28). In the present case, importers were alerted by the publication of the Notice of Initiation and of the provisional Regulation in the Official Journal, which are both still part of the legal order of the Union, of the risk that the products produced by the exporting producers concerned may become subject to an anti-dumping duty. The exporting producers concerned could therefore not invoke legal certainty and legitimate expectations.

(71)

Rather, economic operators were fully aware, when importing footwear from the PRC and Vietnam, that those imports were subject to a duty. They took that duty into account when setting sales prices and assessing economic risks. They therefore did not acquire legal certainty or legitimate expectations that the imports would be free of a duty, and usually passed on the duty to their customers. It is therefore in the Union interest to set now the applicable duty rate, rather than providing a windfall gain to the importers concerned, which would be enriched without due cause.

(72)

There is hence neither violation of the principles of prescription, legal certainty and legitimate expectations, nor of the provisions of the basic Regulation and the WTO ADA.

(73)

As regards the claim that the MET determination had to be completed within three months of the initiation, it is recalled that according to the case-law, the second subparagraph of Article 2(7)(c) of the basic Regulation does not contain any indication as regards the consequences of the Commission's failure to comply with the three-month period. The General Court therefore takes the view that an MET decision at a later stage does not affect the validity of the Regulation imposing definitive measures as long as applicants have not proved that, if the Commission had not exceeded the three-month period, the Council might have adopted a different Regulation more favourable to their interests than the contested Regulation (29). The Court has furthermore recognised that the Institutions may modify the MET assessment until the adoption of final measures (30).

(74)

The above case-law has not been overturned by the Brosmann and Aokang judgments referred to in recital (6) above. In the Brosmann and Aokang judgments, the Court relies on the obligation for the Commission to carry out the assessment in three months in order to show that the obligation of that assessment exists independently of whether the Commission applies sampling or not. The Court does not pronounce itself on the question what legal consequence it has if the Commission concludes the MET assessment at a later stage of the investigation. The Court only rules that the Institutions could not completely ignore MET claims, but had to assess them at the latest when imposing definitive measures. The judgments confirm the case-law quoted in the preceding recital

(75)

In the present case, the exporting producers concerned have not shown that, had the Commission carried out the MET assessment within three months after the initiation of the anti-dumping procedure in 2005, the Council might have adopted a different Regulation more favourable to their interests than the contested Regulation. The claim on time-bar for the assessment of the MET claim is therefore rejected.

(76)

FESI, referring to the judgment of the General Court in Case T-2/95 IPS v Council, pointed to the formal difference between an ‘investigation’ and a ‘proceeding’ and argued that once a proceeding is terminated, like in the current case, it cannot be resumed anymore.

(77)

The Commission fails to see any material difference between the terms ‘investigation’ and ‘proceeding’ in the context of the implementation of the judgments at stake. The judgments concern an irregularity with regard to a specific investigation as part of a proceeding which the Commission is under an obligation to remedy as explained in recitals (23) to (31) above. In any event, the judgment in case T-2/95 has to be read in the light of the judgment on appeal in that case.

(78)

FESI also claimed that Article 266 TFEU does not allow for a partial implementation of a judgment of the Court of Justice and in the current case the reversal of the burden of proof. Thus, FESI claimed that the Commission wrongly assessed only the MET/IT requests of those exporting producers that were suppliers of importers that filed reimbursements claims. FESI based its claim on the understanding that the effect of the judgment of the Court of Justice in the Joined Cases C-659/13 C & J Clark International Limited and C-34/14 Puma SE is erga omnes and that it cannot be excluded that the results of the current assessment of the MET/IT claims has also an impact on the residual duty which is applicable to all Chinese and Vietnamese exporting producers. FESI therefore claimed that the Commission should have assessed all MET/IT claims that were provided during the original investigation.

(79)

Moreover, FESI disagreed that the burden of proof lies with the producer wishing to claim MET/IT arguing that producers had discharged this burden of proof in 2005 by filing the MET/IT requests during the original investigation. FESI also disagreed that the judgment of the Court of Justice in the Joined Cases C-659/13 C & J Clark International Limited and C-34/14 Puma SE can be implemented by simply assessing the MET/IT requests submitted by the non-sampled exporting producers as the Court of Justice did not specifically outline that the invalidation found is indeed limited to this aspect.

(80)

The Commission considers that the implementation of the judgment is only necessary for those exporting producers for which not all import transactions have become definitive. Indeed, once the three year prescription period foreseen in Article 236 of the Community Customs Code has expired, the duty has become definitive, as confirmed in the judgments. Any impact on the residual duty is excluded, because the MET/IT claim for the companies in the sample has been assessed, and the fact of granting MET/IT to one of the companies outside the sample does not affect the residual duty rate.

(81)

The burden of proof is not limited to filing a request. It concerns the content of the request, which has to demonstrate that all conditions for MET/IT are met.

(82)

The only illegality identified in the judgments is the lack of assessment of the MET/IT claims. Therefore, these claims are rejected.

(83)

FESI claimed that the Commission should not have applied two different legal regimes, i.e. the basic Regulation prior to its amendment for the assessment of the exporting producers' IT claims on the one hand (31), and the current basic Regulation on the other hand (32), that incorporated the amendments by Regulation (EU) No 1168/2012 of the European Parliament and the Council (33) introducing Comitology procedures in the area of, inter alia, trade defence and thus delegating the decision making to the Commission.

(84)

FESI also re-iterated that Article 266 TFEU does not allow for the imposition of anti-dumping duties retroactively, which would also be confirmed by the ruling of the Court of Justice in case C-459/98P IPS v Council, and by Council Regulation (EC) 1515/2001 on measures that may be taken by the Community following a report adopted by the WTO Dispute Settlement Body concerning anti-dumping and anti-subsidy matters (34). FESI argued that the Commission has not given any valid justification to deviate from the principle of non-retroactivity and it has therefore violated the principle of legitimate expectations.

(85)

FESI also argued that reimposing the definitive anti-dumping measures on imports from the Chinese and Vietnamese exporting producers concerned by the current implementation constitutes (i) a discrimination of the importers concerned by the current implementation vis-à-vis importers concerned by the implementation of the Brosmann and Aokang judgments referred to in recital (6) above that were reimbursed duties paid on imports of footwear from the five exporting producers concerned by these judgments, as well as (ii) a discrimination of the exporting producers concerned by the current implementation vis-à-vis the five exporting producers concerned by the Brosmann and Aokang judgments which were not made subject of any duty following Implementing Decision 2014/149/EU.

(86)

This discriminatory treatment was claimed to reflect a lack of uniform interpretation and application of EU law which violates the fundamental right of an effective judicial protection.

(87)

Regarding the alleged use of different legal regimes, the Commission considers that that follows from the differences in the transition rules contained in the three Regulations amending the basic Regulation at stake.

(88)

First, Regulation (EU) No 765/2012 (the so-called ‘Fasteners amendment’ dealing with IT) provided in its Article 2 that ‘it shall apply to all investigations initiated pursuant to Regulation (EC) No 1225/2009 following the entry into force of this Regulation’. As the present investigation was initiated prior to that date, the amendments of that Regulation to the basic Regulation do not apply in the present case.

(89)

Second, Regulation (EU) No 1168/2012 (the so-called ‘Brosmann amendment’ dealing with MET) provided in its Article 2 that ‘this Regulation shall apply to all new and to all pending investigations as from 15 December 2012 .’ Therefore, if the Commission had adopted a strict approach, it would not even have been necessary to assess the MET claims of the non-sampled companies any more, as they had lost the right to an MET assessment on 15 December 2012. However, the Commission considers that such treatment would be difficult to reconcile with its obligation to implement the judgments. Regulation (EU) No 1168/2012 does also not seem to introduce a complete ban on analysing MET claims outside the sample, as it authorises such examination in case of individual treatment. By analogy, that derogation could be said to apply in the present case. In the alternative, the Commission considers that the outcome of applying Regulation (EU) No 1168/2012 to the present case would lead to the same outcome, as all MET claims would be automatically rejected, without going through the assessment.

(90)

Third, with regard to Comitology, Article 3 of Regulation (EU) No 37/2014 of the European Parliament and of the Council (35) provides that the Council shall remain competent for acts where the Commission has adopted an act, consultation has been initiated or the Commission has adopted a proposal. In the present case, no such action had been undertaken with regard to the implementation of the judgment prior to the entry into force of Regulation (EU) No 37/2014.

(91)

Regarding the retroactive imposition of the definitive anti-dumping duties reference is made to the considerations outlined above in recitals (62) to (69) where these claims were already addressed extensively.

(92)

Regarding the claim on discrimination, the Commission observes that exporting producers and certain importers concerned by the present Regulation enjoy judicial protection in the Union courts against the present Regulation. Other importers enjoy such protection via the national courts and tribunals, which act as judges of ordinary Union law.

(93)

The claim of discrimination is equally unfounded. Importers that have imported from Brosmann and the other four exporting producers are in a different factual and legal situation, because their exporting producers decided to challenge the contested Regulation and because they had the paid duties reimbursed, so that they are protected by Article 221(3) of the Community Customs Code. No such challenge and no such reimbursement have taken place for others. The Commission started to prepare the implementation for the Chinese and Vietnamese exporting producers of Clark, Puma and Timberland; all other non-sampled exporting producers from the PRC and Vietnam and their importers will be treated in the same fashion at a later stage pursuant to the procedure set out in the present Regulation.

(94)

FESI also claimed that Article 14 of the basic Regulation cannot serve as a legal basis to interfere in the application of Article 236 of the Community Customs Code, and the operation of Article 236 of the Community Customs Code is independent from any decision taken under the basic Regulation or the Commission's obligations under Article 266 TFEU.

(95)

In this context FESI argued that the application of Article 236 of the Community Customs Code falls within the exclusive competence of the national customs authorities under which the latter are obliged to reimburse duties paid that were not legally owed. FESI further argued that Article 236 of the Community Customs Code cannot be made subject to or subsidiary to Article 14 of the basic Regulation because both are secondary legislation and therefore none supersedes the other. In addition, the scope of Article 14 of the basic Regulation concerns special provisions that cover investigations and procedures under the basic Regulation and is not applicable to any other legal instrument such as the Community Customs Code.

(96)

The Commission observes that the Community Customs Code does not apply automatically to the imposition of anti-dumping duties, but only by virtue of a reference in the Regulation imposing anti-dumping duties. Pursuant to Article 14 of the basic Regulation, the Commission may decide not to apply certain provisions of that Code, and instead create special rules. Because the Community Customs Code only applies on the basis of a reference in the Council and Commission Implementing Regulations, it does not have, vis-à-vis Article 14 of the basic Regulation, the same rank in the hierarchy of norms, but is subordinated and may be rendered inapplicable or applicable in a different manner. Therefore, this argument was also rejected.

(97)

FESI further argued that in violation of Article 296 TFEU, the Commission failed to provide adequate statement of reasons and indication of the legal basis on which duties were reimposed retroactively and therefore the reimbursement of duties denied to the importers concerned by the current implementation

(98)

The alleged lack of adequate reasoning concerned, in particular, the following issues: (i) the lack of legal basis and reasoning permitting the Commission to partially implement the judgments at stake, by merely assessing MET/IT claims of those exporting producers where reimbursement claims had been filed by the importers; (ii) the lack of legal basis for reopening the investigation and for reassessing the MET/IT claims of the three Chinese and Vietnamese exporting producers concerned, after measures expired in March 2011; (iii) lack of legal basis to instruct the EU customs authorities not to repay the anti-dumping duties subject to the Court case; (iv) the lack of legal basis to derogate from the principle of non-retroactivity; (v) lack of an explanation regarding the application of the appropriate legal instrument for assessing the MET and IT claims and for proposing the reimposition of anti-dumping duties; (vi) the lack of response to the legal arguments provided by these parties following the disclosure of the Commission concerning the assessment of the MET claims of the Chinese and Vietnamese exporting producers concerned of 15 December 2015, and 6 and 16 June 2016 respectively.

(99)

Regarding the partial implementation of the judgments, the question whether and to what extent the Institutions have to implement a judgment depends on the concrete content of the judgment. In particular, whether or not it is possible to confirm the imposition of duties on imports that took place prior to the judgment depends on whether the finding of injurious dumping as such, or only the calculation of the precise duty rate are affected by the illegality identified in the judgment. In the latter situation, which is pertinent here, there is no justification for reimbursing all duties. Rather, it suffices to determine the correct duty rate, and to reimburse any possible difference (whereas it would not be possible to increase the duty rate, as the increased part would constitute retroactive imposition).

(100)

Past annulments to which interested parties refer have concerned the finding of dumping, injury and Union interest (either with regard to the establishment of facts, with regard to the assessment of the facts, or with regard to rights of defence).

(101)

Those annulments have either been partial or complete.

(102)

The Union Courts use the technique of partial annulment where they can conclude themselves on the basis of the facts in the file that the Institutions ought to have granted a certain adjustment or should have used a different method for a certain calculation, which would have resulted in the imposition of a lower duty (but did not put into question the findings of dumping, injury and Union interest). The (lower) duty remains in force both for the time prior to annulment and for the time after annulment (36). In order to comply with the judgment, the Institutions re-calculate the duty and amend the Regulation imposing the duty accordingly for the past and for the future. They also instruct national customs authorities to reimburse the difference, where such claims had been made in due time (37).

(103)

The Union Courts proceed to complete annulment where they cannot establish themselves on the basis of the facts in the file whether or not the Institutions were right in assuming that there was dumping, injury and Union interest, because the Institutions had to re-do part of their investigation. As the Union Courts are not competent for carrying out the investigation at the place of the Commission, they annulled the Regulations imposing definitive duties completely. As a consequence, the Institutions validly established the presence of the three conditions necessary for the imposition of measures only after the judgment annulling the duties. For imports that took place prior to the valid establishment of dumping, injury and Union interest, the imposition of definitive duties is prohibited both by the basic Regulation and by WTO ADA. Therefore, the acts adopted by the Institutions to close those investigations imposed definitive duties only for the future (38).

(104)

The present case is different from past (partial or complete) annulments in so far as it does not concern the very presence of dumping, injury and Union interest, but merely the choice of the appropriate duty rate. What is at dispute is therefore not the very principle of imposing a duty, but only the precise amount (in other words: a modality) of the duty. The adjustment, if any, can only be downwards.

(105)

Contrary to the cases of partial annulment in the past discussed above in recital (103), the Court has not been able to decide as to whether a new (reduced) duty rate had to be granted, because that decision requires first an assessment of the MET/IT claim. That task of assessing the MET/IT claim falls within the prerogatives of the Commission. Hence, the Court cannot carry out this part of the investigation at the place of the Commission without overstepping its competences.

(106)

Contrary to cases of complete annulment in the past, the findings on dumping, injury, causality and Union interest have not been annulled. Therefore, dumping, injury, causality and Union interest have been validly established at the time of adoption of Council Regulation (EC) No 1472/2006. Therefore, there is no reason to limit the reimposition of definitive anti-dumping duties to the future.

(107)

The present Regulation does not therefore in any event depart from the decisional practice of the Institutions, even if it was relevant.

(108)

Concerning the lack of any legal basis to re-open the investigation, the Commission recalls the case-law quoted above at recital (15), pursuant to which it may resume the investigation at the very point at which the illegality occurred.

(109)

According to the case-law, the legality of an anti-dumping Regulation has to be assessed in the light of the objective norms of Union law, and not of a decisional practice, even where such a practice exists (which is not the case here) (39). Hence, the fact that the Commission may have followed in the past in certain cases a different practice cannot create legitimate expectations. That is all the more the case because the previous practice referred to does not correspond to the factual and legal situation of the present case, and differences can be explained by factual and legal differences with the present case.

(110)

Those differences are as follows: The illegality identified by the Court does not concern the findings on dumping, injury, and Union interest, and therefore the principle of the imposition of the duty, but only the precise duty rate. The previous annulments relied on by the interested parties, on the contrary, concerned the findings on dumping, injury and Union interest. The Institutions therefore considered it more appropriate to adopt new measures for the future.

(111)

In particular, in the present case, there was no need whatsoever to seek additional information from interested parties. Rather, the Commission had to assess information that had been filed with it, but not assessed before the adoption of Regulation (EC) No 1472/2006. In any event, previous practice in other cases does not constitute precise and unconditional assurance for the present case.

(112)

Finally, all parties against which the proceeding is directed, i.e. the exporting producers concerned, as well as the parties in the Court cases and the association representing one of those parties, have been informed by the disclosure of the relevant facts on the basis of which the Commission intends to adopt the present MET/IT assessment. Hence, their rights of defence are safeguarded. In that regard, it is to be noted in particular that unrelated importers do not enjoy, in an antidumping proceeding, rights of defence, as those proceedings are not directed against them. (40)

(113)

Regarding the alleged derogation from the principle of non-retroactivity, reference is made to the recitals (62) to (69) where this was addressed extensively.

(114)

Regarding the alleged application of two different legal regimes in the current implementation reference is made to recitals (87) to (90) where this was addressed extensively.

(115)

Finally, concerning the comments provided by FESI following the disclosure of the MET assessment of the Chinese and Vietnamese exporting producers concerned, these have been addressed fully by the Commission in the current Regulation in recitals (32) and (39) above.

(116)

FESI claimed that the same procedural rights should have been granted to the exporting producers concerned by the current implementation as those granted to the sampled exporting producers during the original investigation. FESI argued in particular, that the Chinese and Vietnamese exporting producers were not provided any opportunity to complement their MET/IT claim forms via deficiency letters and that only desk analysis had been carried out rather than on-spot verification visits. In addition, FESI added that the Commission did not ensure the due delivery of the disclosure of the assessment of MET/IT requests to the exporting producers concerned.

(117)

FESI further argued that the exporting producers concerned by this implementation were not provided with the same procedural guarantees than those applied in standard anti-dumping investigations, but stricter standards were applied. FESI claimed that the Commission has not taken into account the time lag between the filing of the MET/IT request in the original investigation and the assessment of these claims. In addition, exporting producers during the original investigation were only provided 15 days in order to fill in the MET/IT requests, instead of the usual 21 days.

(118)

Also, FESI claimed that the Commission applied de facto facts available within the meaning of Article 18(1) of the basic Regulation, while the Commission did not comply with the procedural rules set out in Article 18(4) of the basic Regulation.

(119)

The Commission recalls that according to the case-law, the burden of proof lies with the producer wishing to claim MET/IT under Article 2(7)(b) of the basic Regulation. To that end, the first subparagraph of Article 2(7)(c) provides that the claim submitted by such a producer must contain sufficient evidence, as laid down in that provision, that the producer operates under market economy conditions. Accordingly, as held by the Court in the judgments in Brosmann and Aokang, there is no obligation on the Institutions to prove that the producer does not satisfy the conditions laid down for the recognition of such status. On the contrary, it is for the Commission to assess whether the evidence supplied by the producer concerned is sufficient to show that the criteria laid down in the first subparagraph of Article 2(7)(c) of the basic Regulation are fulfilled in order to grant it MET/IT (see recital (32)). The right to be heard concerns the opportunity of the party to express its views and the Commission to consider these views.

(120)

In that regard, it is recalled that there is no obligation for the Commission to request the exporting producer to complement the MET/IT claim. As mentioned in the preceding recital, the Commission may base its assessment on the information submitted by the exporting producer. In any event, the exporting producers concerned have not contested the assessment of their MET/IT claims by the Commission, and they have not identified which documents or which people they have no longer been able to rely upon. The allegation is therefore so abstract that the Commission cannot take into account those difficulties when carrying out the assessment of the MET/IT claims. As that argument is based on speculation and not supported by precise indications as to which documents and which people are no longer available and as to what the relevance of those documents and people for the assessment of the MET/IT claim is, that argument has to be rejected.

(121)

Regarding Article 18(1) of the basic Regulation, in the current case the Commission accepted the information provided by the exporting producers concerned, it did not reject this information and based its assessment on it. Therefore, the Commission did not apply Article 18. It follows that there was no need to follow the procedure under Article 18(4) of the Basic Regulation. The procedure under Article 18(4) is followed in cases where the Commission intends to reject certain information provided by the interested party and to use facts available instead.

(122)

Regarding criterion 1 FESI contested the assessment of the Commission with regard to the MET requests of the Chinese and Vietnamese suppliers concerned. FESI requested the Commission to provide more detailed information on the basis of which it was concluded that business decisions of the three Chinese and Vietnamese suppliers were not taken in accordance with market signals without significant State interference. In this regard, FESI recalled that in accordance with criterion 1 of Article 2(7)(c) of the basic Regulation, state interference needs to go beyond mere influence.

(123)

Regarding criterion 2, FESI observed that it was unable to understand the basic grounds for MET rejection given the vagueness of the Commission's assessment.

(124)

Regarding criterion 3, referring to the judgment of the Court of Justice in case T-586/14 Xinyi OV v Commission, FESI argued that tax incentives or preferential tax regimes, were not indicative for any distortion or non-market economy behaviour.

(125)

On this basis, the parties argued that the Commission made a manifest error in the application of Article 2(7)(c) of the basic Regulation and it has also not provided adequate reasons for the rejection of the exporting producers' MET requests.

(126)

As to the request for more detailed information included in the MET/IT claims of the three Chinese and Vietnamese suppliers on the basis of which the Commission rejected criterion 1, it is noted that such information was provided to the Commission on a confidential basis as it contained business secrets. This information could therefore not be disclosed as such and only a non-confidential summary thereof can be provided to interested parties.

(127)

Concerning criterion 3, the Commission confirms that no tax incentives or preferential tax regimes (if any) were considered as a reason to reject the MET request.

(128)

Finally, as regards criterion 2, Article 2(7)(c) of the basic Regulation clearly stipulates that firms must have one set of basic accounting records, which are independently audited in line with international accounting standards and are applied for all purposes. None of the Chinese or Vietnamese suppliers concerned fulfilled these requirements. As outlined in recital (35) the deficiencies observed were the absence of audited accounts or auditor's opinions, severe issues highlighted by auditors in their opinion (such as non-compliance with international accounting standards) and contradictions regarding loans between certain statements made in the MET claim form and the financial statements.

(129)

All claims made by FESI were therefore rejected and the findings laid out in recitals (32) to (39) confirmed.

(130)

FESI first argued referring to IT criterion 2, that the Commission did not show that export sales were not freely determined and that it was for the Commission to establish whether and how export prices were affected due to State interference.

(131)

Moreover, FESI argued that the finding that export sales were not freely determined contradicts the findings of the original investigation related to original equipment manufacturers (‘OEM’) sales made where it was established that importers such as Puma and Timberland were conducting its own R & D and raw material sourcing when buying from their suppliers (41). On this basis, FESI claimed that Puma and Timberland had significant control over the production process and specifications and that there was therefore no possibility of State interference.

(132)

As already mentioned in recital (41) above the burden of proof lies with the producer wishing to claim IT. As also explained above in recital (46) the exporting producers failed to demonstrate that business decisions were made without State interference. It is also noted that IT criterion 2 is not referring solely to export prices, but in general to export sales including export prices and quantities and other conditions and terms of sales that should be determined freely without State interference.

(133)

In support of its argument that export prices were freely determined FESI referred to recital (269) of Regulation (EC) No 553/2006 (the provisional Regulation). However, this recital addressed the re-sale prices of the importers in the Union and cannot therefore be considered as an appropriate basis to establish the reliability of the export prices by the exporting producers. Likewise, the reference to recital (132) of the provisional Regulation and recital (135) of Regulation (EC) No 1472/2006 (the contested Regulation) refers to adjustments made to the normal value when comparing it to the export price and does not allow any conclusions as to whether export sales of the Vietnamese companies were freely determined.

(134)

Furthermore, FESI claimed that the Commission has also not explained how it arrived to the conclusion that there would be a risk of circumvention of the anti-dumping measure if the exporting producers concerned were granted an individual duty rate that would, however, be the underlying purpose of the IT criteria.

(135)

Regarding the risk of circumvention, this is only one criterion out of five listed in Article 9(5) of the basic Regulation before its amendment. According to this Article all 5 criteria should be shown to be met by the exporting producer. Therefore, failure to meet one or more criteria is sufficient to deny the IT claim without examining whether the other criteria were met.

(136)

Account taken of the comments made and the analysis thereof it was concluded that in case of General Footwear Ltd the residual anti-dumping duty applicable to China, i.e. 16,5 % and in case of Diamond Vietnam Co. Ltd and Ty Hung Footgearmex/Footwear Co. Ltd (‘Ty Hung Co. Ltd’) the residual anti-dumping duty applicable to Vietnam, i.e. 10 % should be reimposed for the period of application of the contested Regulation.

(137)

This Regulation is in accordance with the opinion of the Committee established by Article 15(1) of Regulation (EU) 2016/1036,