Notice following the judgments of 14 December 2017 and 28 March 2019, in cases T-460/14 and C-144/18 P respectively, with regard to Council Implementing Regulation (EU) No 307/2014 amending Implementing Regulation (EU) No 875/2013 imposing a definitive anti-dumping duty on imports of certain prepared or preserved sweetcorn in kernels originating in Thailand

(2019/C 291/03)

Judgment

In its judgment of 14 December 2017, in case T-460/14, AETMD v Council (‘the judgment of the General Court’), the General Court of the European Union (‘the General Court’) annulled Council Implementing Regulation (EU) No 307/2014 of 24 March 2014 amending Implementing Regulation (EU) No 875/2013 imposing a definitive anti-dumping duty on imports of certain prepared or preserved sweetcorn in kernels originating in Thailand following an interim review pursuant of Article 11(3) of Regulation (EC) No 1225/2009 (1) (‘the regulation at issue’). In its judgment of 28 March 2019, in case C-144/18 P, the Court of Justice of the European Union (‘the Court’) dismissed the appeal lodged by River Kwai International Food Industry Co. Ltd (‘RK’) as unfounded and confirmed the judgment of the General Court.

The Court of Justice confirmed the finding of the General Court that the procedural rights of Association européenne des transformateurs de maïs doux (‘AETMD’) had been breached by the rejection of its request for disclosure of information relating to the possibility of incorrect allocation of costs between RK and its related entity Agrifresh Co., Ltd (‘AgriFresh’); the allocation of costs being one of the possible causes of the lowering of the production costs alleged by RK in support of its request for an interim review. The General Court held that in that respect during the administrative procedure AETMD had not received disclosure that enabled it effectively to make known its point of view.

Consequences

In accordance with Article 266 of the Treaty on the Functioning of the European Union, the Union's institutions must take the necessary steps to comply with the General Court's judgments. It is recognised that, in cases where proceedings consist of several administrative steps, the annulment of one of those steps does not annul the complete proceeding. The anti-dumping investigation is an example of such a multi-step proceeding.

According to the case-law of the Court, when taking these necessary steps in order to comply with a judgment annulling an act and to implement it, the procedure for replacing an annulled act may be resumed at the very point at which the illegality occurred (2).

Accordingly, in complying with the judgment, the Commission has the possibility to remedy the aspects of the proceeding which led to the annulment, while leaving unchanged those parts which are not affected by the judgment (3).

The annulment of the regulation at issue was due to the non-adherence to the rights of defence during one step of the administrative proceeding underlying the regulation at issue; that is, the lack of disclosure of certain information to AETMD regarding the impact of RK's restructuring which could have affected the assessment of both the lasting nature of the changes of circumstances relied on and the calculation of the dumping margin.

Therefore, the possibility of incorrect allocation of costs between RK and AgriFresh, raised by AETMD during the administrative procedure and which constituted — beside rationalisation of RK's activity — one of the possible causes of the lowering of the production costs, should be examined by reopening the investigation.

Findings reached in the regulation at issue which were not contested, or which were contested but rejected by the judgments of the General Court and of the Court or not examined by the Courts, and therefore did not lead to the annulment of the Regulation at issue, remain valid.

Reopening procedure

Consequently, the Commission has decided to reopen the anti-dumping investigation concerning imports of certain prepared or preserved sweetcorn in kernels originating in Thailand that led to the adoption of Regulation (EU) No 307/2014, in so far as it concerns RK, and resumes it at the point at which the irregularity occurred.

This reopening is limited in scope to the implementation of the judgments of the General Court and of the Court. The reopening does not affect other investigations. Council Implementing Regulation (EU) No 875/2013 of 2 September 2013 imposing a definitive anti-dumping duty on imports of certain prepared or preserved sweetcorn in kernels originating in Thailand following an expiry review pursuant to Article 11(2) of Regulation (EC) No 1225/2009 (4) and any regulation replacing it following the ongoing expiry review (5) is, therefore, still applicable in respect of RK.

Interested parties are informed of this reopening through the publication of this Notice in the Official Journal of the European Union.

Written submissions

In order to obtain the information it deems necessary for its investigation, the Commission will send a questionnaire to RK and AgriFresh and their related companies. They will have to submit a completed questionnaire within 37 days from the date of publication of this Notice in the Official Journal of the European Union, unless otherwise specified.

All interested parties, and in particular RK and AgriFresh and their related companies, and AETMD, are invited to make their views known, submit information and provide supporting evidence on issues pertaining to the reopening of the investigation. Unless otherwise specified, this information and supporting evidence must reach the Commission within 20 days from the date of publication of this Notice in the Official Journal of the European Union.

Possibility to be heard by the Commission investigation services

All interested parties may request to be heard by the Commission investigation services. Any request to be heard should be made in writing and should specify the reasons for the request. For hearings on issues pertaining to the reopening of the investigation the request must be submitted within 15 days of the date of publication of this Notice in the Official Journal of the European Union. Thereafter, a request to be heard must be submitted within the specific deadlines set by the Commission in its communication with these parties.

Instructions for making written submissions and sending correspondence

Information submitted to the Commission for the purpose of trade defence investigations shall be free from copyrights. Interested parties, before submitting, to the Commission, information and/or data which is subject to third party copyrights, must request specific permission to the copyright holder explicitly allowing (a) the Commission to use the information and data for the purpose of this trade defence proceeding; and (b) to provide the information and/or data to interested parties to this investigation in a form that allows them to exercise their rights of defence.

All written submissions, including the information requested in this Notice, completed questionnaires and correspondence provided by interested parties for which confidential treatment is requested shall be labelled ‘Limited’ (6). Parties submitting information in the course of this investigation are invited to reason their request for confidential treatment.

Interested parties providing ‘Limited’ information are required to furnish non-confidential summaries of it pursuant to Article 19(2) of Regulation (EU) 2016/1036 (7) (the ‘basic Regulation’), which will be labelled ‘For inspection by interested parties’. These summaries must be sufficiently detailed to permit a reasonable understanding of the substance of the information submitted in confidence. If a party providing confidential information fails to show good cause for a confidential treatment request or does not furnish a non-confidential summary of it in the requested format and quality, the Commission may disregard such information unless it can be satisfactorily demonstrated from appropriate sources that the information is correct.

Interested parties are invited to make all submissions and requests via TRON.tdi (https://webgate.ec.europa.eu/tron/TDI) including scanned powers of attorney and certification sheets, with the exception of voluminous replies which shall be submitted on a CD-ROM or DVD by hand or by registered mail. By using TRON.tdi or email, interested parties express their agreement with the rules applicable to electronic submissions contained in the document ‘CORRESPONDENCE WITH THE EUROPEAN COMMISSION IN TRADE DEFENCE CASES’ published on the website of the Directorate-General for Trade: http://trade.ec.europa.eu/doclib/docs/2011/june/tradoc_148003.pdf. The interested parties must indicate their name, address, telephone and a valid email address and they should ensure that the provided email address is a functioning official business email which is checked on a daily basis. Once contact details are provided, the Commission will communicate with interested parties by TRON.tdi or email only, unless they explicitly request to receive all documents from the Commission by another means of communication or unless the nature of the document to be sent requires the use of a registered mail. For further rules and information concerning correspondence with the Commission including principles that apply to submissions via TRON.tdi and by email, interested parties should consult the communication instructions with interested parties referred to above.

Commission address for correspondence:

European Commission

Directorate-General for Trade

Directorate H

Office: CHAR 04/039

1049 Bruxelles/Brussel

BELGIQUE/BELGIË

TRON.tdi:

https://webgate.ec.europa.eu/tron/tdi

Email addresses:

TRADE-R567-SWEETCORN-INTERIM@ec.europa.eu

Non-cooperation

In cases where any interested party refuses access to or does not provide the necessary information within the time limits, or significantly impedes the investigation, findings, affirmative or negative, may be made on the basis of facts available, in accordance with Article 18 of the basic Regulation.

Where it is found that any interested party has supplied false or misleading information, the information may be disregarded and use may be made of facts available.

If an interested party does not cooperate or cooperates only partially and findings are therefore based on facts available in accordance with Article 18 of the basic Regulation, the result may be less favourable to that party than if it had cooperated.

Failure to give a computerised response shall not be deemed to constitute non-cooperation, provided that the interested party shows that presenting the response as requested would result in an unreasonable extra burden or unreasonable additional cost. The interested party should immediately contact the Commission.

Hearing Officer

Interested parties may request the intervention of the Hearing Officer for trade proceedings. The Hearing Officer reviews requests for access to the file, disputes regarding the confidentiality of documents, requests for extension of time limits and any other request concerning the rights of defence of interested parties and third parties as may arise during the proceeding.

The Hearing Officer may organise hearings and mediate between the interested party/-ies and Commissions services to ensure that the interested parties' rights of defence are being fully exercised. A request for a hearing with the Hearing Officer should be made in writing and should specify the reasons for the request. The Hearing Officer will examine the reasons for the requests. These hearings should only take place if the issues have not been settled with the Commission services in due course.

Any request must be submitted in good time and expeditiously so as not to jeopardise the orderly conduct of proceedings. To that effect, interested parties should request the intervention of the Hearing Officer at the earliest possible time following the occurrence of the event justifying such intervention. Where hearing requests are submitted outside the relevant timeframes, the Hearing Officer will also examine the reasons for such late requests, the nature of the issues raised and the impact of those issues on the rights of defence, having due regard to the interests of good administration and the timely completion of the investigation.

For further information and contact details interested parties may consult the Hearing Officer's web pages on DG Trade's website: http://ec.europa.eu/trade/trade-policy-and-you/contacts/hearing-officer/

Processing of personal data

Any personal data collected in this investigation will be treated in accordance with Regulation (EU) 2018/1725 of the European Parliament and of the Council (8).

A data protection notice that informs all individuals of the processing of personal data in the framework of Commission's trade defence activities is available on DG Trade's website: http://trade.ec.europa.eu/doclib/html/157639.htm

Information to customs authorities

Pending the conclusion of this reopening investigation, the anti-dumping duties on imports of sweetcorn (Zea mays var. saccharata) in kernels, prepared or preserved by vinegar or acetic acid, not frozen, currently falling within CN code ex 2001 90 30 (TARIC code 2001903010) and sweetcorn (Zea mays var. saccharata) in kernels prepared or preserved otherwise than by vinegar or acetic acid, not frozen, other than products of heading 2006, currently falling within CN code ex 2005 80 00 (TARIC code 2005800010), originating in Thailand, produced by River Kwai International Food Industry Co. Ltd (TARIC additional code A791), are collected at the level of the anti-dumping duties imposed by Implementing Regulation (EU) No 875/2013, namely 12,8 %, or any regulation replacing it (9) as from 28 March 2019.

The level of duties that will be established as a consequence of having reopened the investigation might differ from the level of the duties collected by national customs authorities as of 28 March 2014. The Commission may decide to instruct customs authorities to collect anti-dumping duties on imports of sweetcorn (Zea mays var. saccharata) in kernels, prepared or preserved by vinegar or acetic acid, not frozen, currently falling within CN code ex 2001 90 30 (TARIC code 2001903010) and sweetcorn (Zea mays var. saccharata) in kernels prepared or preserved otherwise than by vinegar or acetic acid, not frozen, other than products of heading 2006, currently falling within CN code ex 2005 80 00 (TARIC code 2005800010), originating in Thailand, produced by River Kwai International Food Industry Co. Ltd (TARIC additional code A791) at the rate determined by the outcome of the reopening investigation.

Disclosure

The exporting producer concerned and the Union industry will be subsequently informed of the essential facts and considerations on the basis of which the Commission intends to implement the judgment and will be given an opportunity to comment.

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(1)  OJ L 91, 27.3.2014, p. 1.

(2)  Judgments of the Court of Justice of 3 October 2000, Industrie des poudres sphériques v Council, C-458/98 P, EU:C:2000:531, paragraphs 80 to 85, as well as of 28 January 2016, CM Eurologistik, C-283/14 and C-284/14, EU:C:2016:57, paragraphs 48 to 55.

(3)  Judgment of the Court of Justice of 14 June 2016, Commission v McBride, Case C-361/14 P, EU:C:2016:434, at paragraph 56; see also, in the area of dumping, judgment of the Court of Justice of 3 October 2000, Industrie des poudres sphériques v Council, Case C-458/98 P EU:C:2000:531, at paragraph 84.

(4)  OJ L 244, 13.9.2013, p. 1.

(5)  Notice of initiation of an expiry review of the anti-dumping measures applicable to imports of certain prepared or preserved sweetcorn in kernels originating in the Kingdom of Thailand (OJ C 322, 12.9.2018, p. 4).

(6)  A ‘Limited’ document is a document which is considered confidential under Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ L 176, 30.6.2016, p. 21) and Article 6 of the WTO Agreement on Implementation of Article VI of the GATT 1994 (Anti-Dumping Agreement). It is also a document protected under Article 4 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council (OJ L 145, 31.5.2001, p. 43).

(7)  Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ L 176, 30.6.2016, p. 21).

(8)  Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39).

(9)  Notice of initiation of an expiry review of the anti-dumping measures applicable to imports of certain prepared or preserved sweetcorn in kernels originating in the Kingdom of Thailand (OJ C 322, 12.9.2018, p. 4).