(1)

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

(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 2 years (‘Council 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 Regulation (EU) No 1294/2009 (6), i.e. until 31 March 2011, when the measures expired (‘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 judgements 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 judgements. 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 judgement in Case C-249/10 P and paragraph 29 and 32 of the judgement in Case C-247/10 P).

(7)

The Court of Justice then gave judgement 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 judgement in Case C-249/10 P and paragraph 36 of the judgement 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 Council 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 Regulation (EEC) No 2913/1992 of 12 October 1992 establishing the Community Customs Code (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, 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 B.V. (‘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 Council Regulations (EC) No 1472/2006 and (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 Article 2(7)(b) and Article 9(5) of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (10).

(13)

Regarding the third case C-571/14, Timberland Europe B.V. 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 judgement consists in the replacement of the annulled act by a new act, in which the illegality identified by the Court is eliminated (11).

(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 (12). 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 (13), 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 Council Regulations (EC) No 1472/2006 and (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 the basic Regulation in its form prior to the entry into force of Regulation (EU) No 765/2012 (14) (the ‘basic Regulation prior to its amendment’) (15).

(18)

In a first step, for imports of Clark and Puma from the PRC, the Commission assessed all MET and IT claims provided by the non-sampled relevant exporting producers that submitted such claims in the original investigation.

(19)

Regarding imports of Timberland from PRC, there were two suppliers in the PRC identified in the case C-571/14. One of those suppliers, Zhongshan Pou Yuen, was sampled in the original investigation and therefore no illegality occurred in the original investigation regarding this supplier. The second supplier, General Shoes Limited, was wrongly identified as a Chinese supplier whereas the company was established in Vietnam. As mentioned in recital 150 below, this was later contested by the Federation of the European Sporting Goods Industry (‘FESI’) that claimed that General Shoes Ltd was in fact a Chinese supplier.

(20)

For imports of Puma, Clark and Timberland from Vietnam, the Commission is currently also carrying out an assessment of MET and IT claims provided by the relevant non-sampled exporting producers that submitted such claims in the original investigation. This investigation is still ongoing.

(21)

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 (16).

(22)

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 the PRC are concerned.

(23)

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.

(24)

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

(25)

The Commission has examined whether MET and IT prevailed for the Chinese exporting producers of Clark and Puma, which submitted MET and/or IT requests in that 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 their Chinese suppliers which requested MET and/or IT.

(26)

Should the analysis reveal that MET was to be granted to the Chinese exporting producer whose exports were subject to the anti-dumping duty paid by either of the two importers concerned, the repayment of the duty would be limited to an amount corresponding to a difference between the duty paid, namely 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 %.

(27)

Should the analysis reveal that IT was to be granted to the Chinese exporting producer for which MET was rejected, but 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 the exporting producer concerned and the repayment of the duty would be limited to an amount corresponding to a difference between the duty paid, and the individual duty calculated for the exporting producer concerned, if any.

(28)

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.

(29)

As explained in recital 12, the Court of Justice annulled the contested Regulation and Regulation (EU) No 1294/2009, inter alia, with regard to exports of certain footwear from 13 Chinese exporting producers, i.e. Buckinghan Shoe Mfg Co. Ltd, Buildyet Shoes Mfg., DongGuan Elegant Top Shoes Co. Ltd, Dongguan Stella Footwear Co. Ltd, Dongguan Taiway Sports Goods Limited, Foshan City Nanhai Qun Rui Footwear Co., Jianle Footwear Industrial, Sihui Kingo Rubber Shoes Factory, Synfort Shoes Co. Ltd, Taicang Kotoni Shoes Co. Ltd, Wei Hao Shoe Co. Ltd, Wei Hua Shoe Co. Ltd and Win Profile Industries Ltd (‘the exporting producers concerned’) to the Union and imported by Clark and Puma, in so far as the Commission did not examine the MET and IT claims submitted by, inter alia, the exporting producers in the PRC.

(30)

The Commission has therefore examined in a first step the MET and IT claims of these 13 exporting producers 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).

(31)

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 judgement in Case C-249/10 P and paragraph 24 of the judgement in Case C-247/10 P).

(32)

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.

(33)

None of the exporting producers concerned was able to demonstrate that it met criteria 1 (Business decisions) and 3 (Assets and ‘Carry-over’). More specifically, regarding criterion 1 the exporting producers concerned failed to provide essential and complete information (e.g. evidence concerning the structure and the capital of the company, evidence concerning domestic sales, evidence concerning the remuneration of the employees, etc.) to demonstrate that their business decisions were taken in accordance with market signals without significant State interference. Regarding criterion 3, the exporting producers concerned equally failed to provide essential and complete information (e.g. evidence concerning the assets owned by the company and the land use right) to demonstrate that no distortions were carried over from the non-market economy system.

(34)

In addition, as concerns criterion 2 (Accounting), four companies (Companies A, I, K, M) did not meet this criterion as they did not submit a clear set of basic accounting records.

(35)

For the remaining nine companies (Companies B, C, D, E, F, G, H, J, L) criterion 2 (Accounting) was not assessed for the reason set out in recital 32.

(36)

For the same reason set out in recital 22, for none of the exporting producers concerned criteria 4 (Bankruptcy and property laws) and 5 (Exchange rate conversions) were assessed.

(37)

On the basis of the above, the Commission concluded that none of the 13 Chinese 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 13 Chinese exporting producers concerned.

(38)

Therefore, none of the 13 Chinese 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.

(39)

It is recalled that the Court of Justice held that if the Union Institutions found that the market economy conditions prevailed for the exporting producers concerned, they ought to have benefited from the same rate as the company in the sample that was granted MET (17).

(40)

However, since MET is denied for all exporting producers concerned as a result of the findings in the resumed investigation, none of the exporting producers concerned should benefit from the individual duty rate of the sampled company that was granted MET.

(41)

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.

(42)

As mentioned in recital 31 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.

(43)

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.

(44)

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

(45)

The five criteria are the following:

(46)

All 13 Chinese exporting producers that requested MET also claimed IT in the event that they would not be granted MET.

(47)

The majority of exporting producers concerned (Companies A, B, C, D, E, G, H, I, J, K, L, M) were not able to demonstrate that they met criterion 2 (Export sales and prices freely determined). More specifically, for certain exporting producers concerned (Companies E, G, H, J, K, L) the Articles of Association stipulated a limitation in output and therefore they failed to demonstrate that business decisions, such as export quantities are made in response to market signals reflecting supply and demand. Others (Companies A, B, M) did not sell on the domestic market and provided no further explanations so that they have not demonstrated that this was not due to State intervention. The remaining exporting producers (Companies C, D, I) failed to provide essential and complete documentation and therefore they have not demonstrated that criterion 2 was met.

(48)

As regards criterion 3 (Company — key management and shares — is sufficiently independent from State interference), 10 Chinese exporting producers (Companies B, E, F, G, H, I, J, K, L, M) failed to submit essential and complete documentation (in particular on how the company acquired the assets, who owned the assets and the land use rights, etc.) and did therefore not demonstrate that there was no State interference and they therefore failed to demonstrate that they met this criterion.

(49)

In addition, one exporting producer (Company C) failed to meet criterion 1 (Capital repatriation) since the investigation revealed limitations for capital repatriation due to State interference. Furthermore, the same exporting producer (Company C) failed to demonstrate that it met criterion 5 (No state interference to permit circumvention of measures) since no information was provided concerning two related companies located in China and therefore essential documentation was missing to demonstrate that this criterion was met.

(50)

Therefore, none of the 13 Chinese exporting producers concerned fulfilled the conditions set out in Article 9(5) of the basic Regulation prior to its amendment and IT was, as a result, denied to all of them.

(51)

The residual anti-dumping duty applicable to the PRC should therefore be imposed for these exporting producers 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 or to the duty of the company in the sample that was granted MET.

(52)

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.

(53)

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 Regulation (EU) No 1294/2009, no changes are required to Council Regulation (EC) No 388/2008. That Regulation remains valid.

(54)

The above findings and conclusions were disclosed to the interested parties which were given a time period to comment. FESI representing importers including Puma and Timberland, Clark, another importer and one exporting producer, which MET/IT claim had not been subject to the current implementation came forward and provided comments.

(55)

FESI and one importer claimed that there were a number of procedural errors in the current implementation. They pointed to the fact that the MET claims of the Chinese exporting producers concerned were already examined and disclosed prior to the judgement 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 %. These assessments would therefore have been carried out without legal basis and were pre-empting the up-coming judgment of the Court of Justice.

(56)

The Commission does not agree with the above statement 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 Clark, Puma and Timberland can rely on that illegality. As a result of that yes/no binary choice, the Commission could exceptionally perfectly well 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 this judgment concerned a different subject-matter (namely whether importers can rely on the right to have MET/IT claims assessed vested in exporting producers).

(57)

These parties further claimed that the Notice on the implementation of the judgment in joined cases C-659/13 and C-34/14 C&J Clark International Limited and Puma SE later published on 17 March 2016 (18) could not cure above procedural errors because it did not provide meaningful opportunity for the interested parties to exercise their rights of defence.

(58)

Several parties moreover claimed that they should have been granted access to the full investigation file of the original investigation and that the names of the relevant exporting producers should not have been anonymised in the disclosure documents.

(59)

In conclusions, these parties argued that on the basis of the above procedural mistakes, the Commission violated the basic legal framework of the EU and thus exercised an abuse of its powers.

(60)

Another party questioned the relationship between the disclosure mentioned in recital 55 and the latest disclosure sent on 20 May 2016 and requested clarification on this matter.

(61)

The Notice on the implementation of the judgment was published in order to increase transparency, in line with the Commission's policy on transparency in trade defence investigations and at the request of the Hearing Officer, following a hearing with one of the parties raising the issue. The Commission continues to take the view that that publication was not, strictly speaking, legally required. In any event, even if it was necessary, quod non, to ensure due process and the right to be heard, those requirements have been fulfilled by its publication and the fact of giving all parties the possibility to comment.

(62)

Access to the full file of the original investigation has been granted, even though the Commission fails to see how any other information than the MET/IT claims of the exporting producers concerned could possibly be relevant for the present proceedings. The anonymisation of the names of the exporting producers has been necessary in order to ensure that their business-confidential data is protected; however, at their request, interested parties who imported were informed which of the importers were their importers.

(63)

The second disclosure had become necessary because the regulation now also covers IT claims, which were not assessed initially.

(64)

For those reasons, any claims regarding procedural irregularities have to be rejected.

(65)

Several interested parties claimed that there was no legal basis for the current implementation. In particular they 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. The parties 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 of and failure to act on the part of the EU institutions. The current approach does not have any precedents and the Commission did also not provide any reasoning or prior jurisprudence which would support its interpretation of Article 266 TFEU.

(66)

The parties argued further 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 Chinese exporting producers concerned.

(67)

The parties claimed further that the retro-active correction of expired measures violates the principle of protection of legitimate expectations. They 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 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 applied in all legal contexts.

(68)

Several interested parties argued that neither Article 266 TFEU, nor the basic Regulation permit the retroactive reimposition of the definitive duty of 16,5 % to imports of the Chinese exporting producers concerned.

(69)

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. The judgment annulling the initial act reopens, according to the case-law, the administrative procedure, which can be resumed at the point in time where the illegality occurred.

(70)

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, as the basic Regulation provides that an investigation has to be closed by an act of the Commission.

(71)

As to the claim concerning retroactivity based on Article 13 of the basic Regulation and Article 10 of the WTO Anti Dumping Agreement (‘ADA’), Article 13(1) of the basic Regulation, which takes over the text of Article 10(1) of the 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 (19).

(72)

The Commission also observes that there is no retroactivity and violation of legal certainty and legitimate expectations involved in the present case.

(73)

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) (20), 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) (21).

(74)

In the present case, the situation of the imports of the products concerned that occurred during the period of application of Council 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 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 (22).

(75)

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

(76)

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:

(77)

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 them (23). In particular, in case Case C-337/88 Società agricola fattoria alimentare (SAFA) 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 (24).

(78)

In the present case the purpose is to comply with the obligation of the Commission pursuant to Article 266 TFEU. Since 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.

(79)

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 (25). 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 rely on the general principles of the Union's law of protection of legal certainty and legitimate expectations.

(80)

Rather, economic operators were fully aware, when importing footwear, 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.

(81)

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 ADA.

(82)

As regards the claim that the MET determination had to be completed within 3 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 3-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 3-month period, the Council might have adopted a different regulation more favourable to their interests than the contested regulation (26). The Court has furthermore recognized that the Institutions may modify the MET assessment until the adoption of final measures (27).

(83)

The above case-law has not been overturned by the Brosmann and Aokang judgments. In the Brosmann and Aokang judgments, the Court relies on the obligation for the Commission to carry out the assessment in 3 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 the latest when imposing definitive measures. The judgments confirm the case-law quoted in the preceding recital.

(84)

In the present case, the exporting producers concerned have not shown that, had the Commission carried out the MET assessment within 3 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.

(85)

It was also claimed that since the illegality occurred at the point of MET assessments, the Commission should have resumed the proceeding to the point prior to the imposition of provisional measures.

(86)

In that regard, the Commission observes that provisional measures are not a necessary step of the proceeding, but an autonomous act that ceases its effects with the adoption of definitive measures (28). The only essential procedural step prior to the adoption of definitive measures is the initiation. Therefore, that argument is inoperative.

(87)

Some parties 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.

(88)

The Commission fails to see any material difference between the terms ‘investigation’ and ‘proceeding’. They are used in an interchangeable manner in the basic Regulation and in the case-law. 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.

(89)

Several parties 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, they claimed that the Commission wrongly assessed only the MET/IT requests of those exporting producers that were suppliers of importers that filed reimbursements claims. These parties based their 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 the MET/IT claims has also an impact on the residual duty which is applicable to all Chinese exporting producers. These parties therefore claimed that the Commission should have assessed all MET/IT claims that were provided during the original investigation.

(90)

Moreover, these parties 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. They 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.

(91)

The Commission considers that implementation of the judgment is only necessary for those exporting producers for which not all import transactions have become definitive. Indeed, once the 3-year prescription period foreseen in 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.

(92)

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.

(93)

The only illegality identified in the judgments is the lack of assessment of the MET/IT claims.

(94)

Several interested parties 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 and the current basic Regulation on the other hand that incorporated the amendments by Regulation (EU) No 1168/2012 of the European Parliament and the Council (29) introducing Comitology procedures in the area of, inter alia, trade defence and thus delegating the decision making to the Commission.

(95)

These parties also reiterated that Article 266 TFEU does not allow for the imposition of anti-dumping duties retro-actively which would also be confirmed by the ruling of the Court of Justice in case C-459/98P, IPS v Council and 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 (30). They argued that the Commission has not given any valid justification to deviate from the principle of non-retroactivity and has therefor violated the principle of legitimate expectations.

(96)

One interested party claimed any imposition of measures would be in any event without object since the statute of limitations laid down in Article 103 of the Community Customs Code expired. Collecting anti-dumping duties would therefore violate the principle of good administration as well as Article 21 of the basic Regulation and would constitute an abuse of power.

(97)

Several parties also argued that reimposing the definitive anti-dumping measures on imports of the Chinese 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 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 the Council Implementing Decision of 18 March 2014 rejecting the proposal for an Implementing Regulation reimposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of 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 (31).

(98)

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.

(99)

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.

(100)

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.

(101)

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 authorizes 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 same outcome, as all MET claims would be automatically rejected, without going through the assessment.

(102)

Third, with regard to Comitology, Article 3 of Regulation (EU) No 37/2014 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 that Regulation.

(103)

Regarding the retro-active imposition of the definitive anti-dumping duties reference is made to the considerations outlined above in recitals 73 to 81 where these claims were already addressed extensively.

(104)

Regarding 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.

(105)

The claim of discrimination is equally unfounded. Importers that have imported from Brosman 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 were reimbursed their duties, 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 starts to prepare implementation for the Chinese 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.

(106)

The same interested parties 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.

(107)

In this context it was 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. The parties concerned 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.

(108)

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.

(109)

The above mentioned interested parties 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.

(110)

The lack of adequate reasoning concerned in particular (i) the lack of legal basis for the reopening of the investigation and the lack of publishing a relevant notice announcing such reopening; (ii) the only partial implementation of the judgment of the General Court by merely assessing MET/IT claims of those exporting producers where reimbursement claims had been filed by the importers; (iii) the derogation from the principle of non-retroactivity of anti-dumping duties; (iv) the application of the basic Regulation prior to its amendment on 6 September 2012 for the assessment of the exporting producers' IT claims on the one hand and the current basic Regulation as amended by Regulation (EU) No 1168/2012 with regard to the applicable decision making procedures and (v) 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 exporting producers concerned of 15 December 2015.

(111)

Concerning the lack of any legal basis to reopen 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. That was after initiation. There is no legal obligation for the Commission to publish a notice to reinitiate, to resume or to reopen the proceeding or the investigation. Rather, such is the automatic effect of the judgment which the Institutions then have to implement.

(112)

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) (32). 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.

(113)

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.

(114)

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.

(115)

Finally, all parties against which the proceeding is directed, i.e. the exporting producers concerned, as well as the parties in the pending 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 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 (33).

(116)

Regarding the partial implementation of the judgments is concerned 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).

(117)

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).

(118)

Those annulments have either been partial or complete.

(119)

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 (34). In order to comply with the judgment, the Institutions recalculate 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 (35).

(120)

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 redo 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 ADA. Therefore, the acts adopted by the institutions to close those investigations imposed definitive duties only for the future (36).

(121)

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 (that is the choice between the duty rate applicable to the only company in the sample having received MET and the residual 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. And the adjustment, if any, can only be downwards.

(122)

Contrary to the cases of partial annulment in the past discussed above in recital (119), 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 claim. That task of assessing the MET 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.

(123)

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.

(124)

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

(125)

Interested parties also argued that the annulment of anti-dumping duties would not entail any unjust enrichment by the importers, as claimed by the Commission, since these importers may have suffered a decline in sales due to the duty which had been incorporated in the sales price.

(126)

In the case-law of the Court of Justice, it is recognized that the repayment of charges which have been unduly levied may be refused where doing so would entail unjust enrichment of the recipients (37). The Commission observes that those interested parties do not contest that the duty has been passed on and do not provide any proof for a decline in sales, and that in any event the case-law on unjust enrichment only takes into pass-on, but not possible secondary effects of pass-on.

(127)

Regarding the alleged derogation from the principle of non-retroactivity, reference is made to the recitals 76 to 81 where this was addressed extensively.

(128)

Regarding the alleged application of two different legal frames in the current implementation reference is made to recitals 99 to 102 where this was addressed extensively.

(129)

Finally, concerning the comments provided by these parties following the disclosure of the MET assessment of the Chinese exporting producers concerned, it is considered that these have been addressed fully in the current Regulation.

(130)

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

(131)

It was 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. 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.

(132)

In addition, one of the importers claimed that the procedural rights of the exporting producers were violated as they were no longer in a position to provide meaningful comments or provide additional information to support claims that were made 11 years ago as the companies may no longer exist or the documents may no longer be available.

(133)

The same party argued that unlike in the original investigation, the current reimposition of the measures would only affect the importers in the Union without, however, any option for them to provide meaningful input.

(134)

Also, it was 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.

(135)

The Commission observes that nothing in the basic Regulation requires the Commission to give exporting companies claiming MET/IT the possibility to complete lacking factual information. It 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 above recital 31). The right to be heard concerns the assessment of those facts, but does not comprise the right to remedy deficient information. Otherwise, the exporting producer could prolong indefinitely the assessment, by providing information piece by piece.

(136)

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 their 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 Institutions 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 rebutted.

(137)

Regarding the de facto application of Article 18(1) of the basic Regulation, this does not automatically also require the application of Article 18(4) of the basic Regulation. This is only required in cases where the Commission were to reject information that had been provided by the interested party. In the current case, the Commission accepted the information provided by the exporting producers concerned and based its assessment on this information. That is not use of facts available. Rather, the Commission has not rejected any information.

(138)

One importer claimed that the Commission failed to examine whether the imposition of the anti-dumping duties would be in the Union interest and argued that the measures would be against the Union interest because (i) the measures already had their intended effect when first imposed; (ii) the measures would not cause additional benefit for the Union industry; (iii) the measures would not affect the exporting producers and (iv) the measures would impose an important cost on the importers in the Union.

(139)

The present case only concerns the MET/IT requests, because this is the only point on which a legal error has been identified by the Union Courts. For Union interest, the assessment in the initial regulation remains fully valid. Furthermore, the present measure is justified in order to protect the financial interest of the Union.

(140)

FESI and Puma contested the assessment of the Commission with regard to the MET requests of their Chinese suppliers and alleged that they were mainly rejected based on the absence of complete information. Regarding criterion 1, these parties argued that the Commission, apart from making no effort to obtain the missing information did also not specify which information would have been necessary to show that there was no significant State interference in the business decisions of the exporting producers concerned. Regarding criterion 3, referring the judgment of the Court of Justice in case T-586/14 Xinyi OV v Commission, these parties argued that tax incentives or preferential tax regimes were not indicative for any distortion or non-market economy behaviour.

(141)

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 has also not provided adequate reasons for the rejection of the exporting producers' MET requests.

(142)

With regard to the missing information concerning criterion 1, reference is made to (135) which outlines that there is nothing in the basic Regulation that requires the Commission to give exporting companies claiming MET the possibility to complete lacking factual information and that the burden of proof lies in fact with the exporting producer who wishes to claim MET.

(143)

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

(144)

The same above parties argued, referring to criterion 2, that the Commission did not show that export sales were not freely determined and that it was up to the Commission to determine whether and how export prices were affected due to State interference.

(145)

Moreover, it was argued that the finding that export sales were not freely determined contradicts the findings of the original investigation related to OEM sales made where it was established that importers such as Puma were conducting its own R & D and raw material sourcing when buying from the Chinese suppliers (38). On this basis, it was claimed that Puma and Timberland had significant control over the production process and specifications and that there was therefore no possibility of State interference.

(146)

As already mentioned in recital 42 above the burden of proof lies with the producer wishing to claim IT. As also explained above in recital 47 the exporting producers failed to demonstrate that business decisions were made without State interference. It is also noted that 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.

(147)

In support of their argument that export prices were freely determined the interested parties concerned referred to recital 269 of Commission Regulation (EC) No 553/2006 (provisional Regulation). However, this recital addressed the resale 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 recitals 132 of the provisional Regulation and recital 135 of Regulation (EC) No 1472/2006 (39) (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 Chinese companies were freely determined.

(148)

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

(149)

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 five 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.

(150)

FESI contested the statement in recital 19 above according to which one of Timberland suppliers, General Shoes Limited, was wrongly identified as a Chinese supplier in the application before the national Court whereas the company was established in Vietnam. FESI argued that the Commission should have sought further clarification and alleged that the company was easily identifiable as a Chinese company. It argued that while it was true that the company appeared with a different name in the sampling form and MET claim provided in the original investigation (i.e. as General Footwear Ltd) the different company name in Timberland's application before the national Court (i.e. General Shoes Ltd) would be most likely merely due to a translation error. Therefore the MET/IT request of the Chinese company General Footwear Ltd should also have been assessed.

(151)

General Footwear Ltd is part of a company group with related companies in China and Vietnam. Both, a producer in Vietnam and another one in China provided MET/IT claims in the original investigation. In the MET/IT claim of the Chinese company, its name is consistently reported as ‘General Footwear Ltd’ with an address in China. The producer in Vietnam is reported as ‘General Shoes Ltd’. However, the relevant MET/IT claim form is ambiguous whether the company at stake is in fact Chinese or Vietnamese. It was therefore not unreasonable to assume that the company mentioned in the file before the national Court was in fact Vietnamese.

(152)

In any event, it is the Commission's intention to still assess the MET/IT claim of ‘General Footwear Ltd’ (China). In the spirit of sound administration and in order not to delay unnecessarily the ongoing implementation exercise, this assessment will, however, be subject to separate legal act.

(153)

One importer acknowledged that none of the exporting producers concerned by the current implementation was its supplier and therefore considered that the conclusions were not relevant to its situation. This party argued that the conclusions of the current implementation cannot therefore constitute a basis for denying its reimbursement requests filed at the national customs. The importer further requested that the MET/IT claims of its suppliers should be investigated on the basis of the documents provided by the relevant Belgian customs authorities to the Commission.

(154)

With regard to the above claim, the Commission refers to the Commission Implementing Regulation (EU) 2016/223 establishing a procedure for assessing certain market economy treatment and individual treatment claims made by exporting producers from China and Vietnam, and implementing the judgment of the Court of Justice in joined cases C-659/13 and C-34/14 (40) which sets out the procedure to be followed in this matter. In particular, in accordance with Articles 1 and 2 of that Regulation, the Commission will examine the relevant MET/IT claims as soon as it has received the relevant documentation from the customs authorities.

(155)

Account taken of the comments made and the analysis thereof it was concluded that the residual anti-dumping duty applicable to the PRC in respect of the 13 exporting producers concerned for the period of application of the contested Regulation should be reimposed.

(156)

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 13 exporting producers concerned. They were granted a period within which to make representations subsequent to disclosure.

(157)

The Committee established by Article 15(1) of the Regulation (EU) 2016/1036 did not deliver an opinion,