Notice concerning the anti-dumping measures on imports of certain prepared or preserved citrus fruits (namely mandarins, etc.) originating in the People's Republic of China and a partial reopening of the anti-dumping investigation concerning imports of certain prepared or preserved citrus fruits (namely mandarins, etc.) originating in the People's Republic of China

2012/C 175/08

By its judgment of 22 March 2012 in Case C-338/10, the European Court of Justice (‘ECJ’) declared Council Regulation (EC) No 1355/2008 of 18 December 2008 imposing a definitive anti-dumping duty and collecting definitively the provisional duty on imports of certain prepared or preserved citrus fruits (namely mandarins, etc.) originating in the People's Republic of China (1) (‘definitive anti-dumping Regulation’ or ‘the contested Regulation’) invalid.

As a consequence of the judgment of 22 March 2012, imports into the European Union of certain prepared or preserved citrus fruits (namely mandarins, etc.) are no longer subject to the anti-dumping measures imposed by Regulation (EC) No 1355/2008.

1.   Information to customs authorities

Consequently, the definitive anti-dumping duties paid pursuant to Regulation (EC) No 1355/2008 on imports into the European Union of certain prepared or preserved citrus fruits (namely mandarins, etc.) currently falling within CN codes 2008 30 55, 2008 30 75 and ex 2008 30 90 (TARIC codes 2008309061, 2008309063, 2008309065, 2008309067, 2008309069) originating in the People's Republic of China, and the provisional duties definitively collected in accordance with Article 3 of Regulation (EC) No 1355/2008, should be repaid or remitted. The repayment or remission must be requested from national customs authorities in accordance with applicable customs legislation.

Moreover, imports into the European Union of certain prepared or preserved citrus fruits (namely mandarins, etc.) originating in the People's Republic of China are no longer subject to the anti-dumping measures imposed by Regulation (EC) No 1355/2008.

2.   Partial reopening of the anti-dumping investigation

The ECJ, through its judgment of 22 March 2012, declared Regulation (EC) No 1355/2008 invalid. The ECJ found that the European Commission (‘the Commission’) did not take all due care to determine the normal value on the basis of the price or constructed value in a market economy third country as prescribed by Article 2(7)(a) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (2) (‘the basic Regulation’).

It is recognised by the Courts (3) that, in cases where a proceeding consists of several administrative steps, the annulment of one of those steps does not annul the complete proceeding. The anti-dumping proceeding is an example of such a multi-step proceeding. Consequently, the annulment of parts of the definitive anti-dumping Regulation does not imply the annulment of the entire procedure prior to the adoption of the Regulation in question. On the other hand, according to Article 266 of the Treaty on the Functioning of the European Union, the institutions of the European Union are obliged to comply with the judgment of 22 March 2012 of the ECJ. Accordingly, the Union's institutions, in so complying with the judgment, have the possibility to remedy the aspects of the contested Regulation which led to its annulment, while leaving unchanged the uncontested parts which are not affected by the judgment (4). It must be noted that all other findings made in the contested Regulation, which were not contested within the time limits for a challenge and thus were not considered by the Courts and did not lead to the annulment of the contested Regulation, remain valid. The same conclusion applies by analogy where a Regulation is declared invalid.

The Commission has thus decided to reopen the anti-dumping investigation concerning imports of certain prepared or preserved citrus fruits (namely mandarins, etc.) originating in the People's Republic of China initiated pursuant to the basic Regulation. The reopening is limited in scope to the implementation of the finding of the ECJ as recalled above.

3.   Procedure

Having determined, after consulting the Advisory Committee, that a partial reopening of the anti-dumping investigation is justified, the Commission hereby partially reopens the anti-dumping investigation concerning imports of certain prepared or preserved citrus fruits (namely mandarins, etc.) originating in the People's Republic of China initiated pursuant to Article 5 of the basic Regulation by a notice published in the Official Journal of the European Union  (5).

The reopening is limited in scope to the selection of an analogue country, if any, and the determination of the normal value pursuant to Article 2(7)(a) of the basic Regulation to be used for the calculation of any margin of dumping.

All interested parties are hereby invited to make their views known, submit information and provide supporting evidence regarding the availability of market economy third countries which could be selected to determine normal value pursuant to Article 2(7)(a) of the basic Regulation, including with regard to Israel, Swaziland, Turkey and Thailand. This information and supporting evidence must reach the Commission within the time limit set in point 4(a).

Furthermore, the Commission may hear interested parties, provided that they make a request showing that there are particular reasons why they should be heard. This request must be made within the time limit set in point 4(b).

4.   Time limits

(a)   For parties to make themselves known and to submit information

All interested parties, if their representations are to be taken into account during the investigation, must make themselves known by contacting the Commission, present their views and submit any information within 20 days of the date of publication of this notice in the Official Journal of the European Union, unless otherwise specified. Attention is drawn to the fact that the exercise of most procedural rights set out in the basic Regulation depends on the party's making itself known within the aforementioned period.

(b)   Hearings

All interested parties may also apply to be heard by the Commission within the same 20-day time limit.

5.   Written submissions and correspondence

All submissions and requests made by interested parties must be made in writing (not in electronic format, unless otherwise specified) and must indicate the name, address, e-mail address, telephone and fax numbers of the interested party. All written submissions, including the information requested in this notice and correspondence provided by interested parties on a confidential basis shall be labelled as ‘Limited’ (6) and, in accordance with Article 19(2) of the basic Regulation, shall be accompanied by a non-confidential version, which will be labelled ‘For inspection by interested parties’.

Commission address for correspondence:

6.   Non-cooperation

In cases in which 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 in accordance with Article 18 of the basic Regulation, on the basis of the facts available.

Where it is found that any interested party has supplied false or misleading information, the information shall be disregarded and use may be made, in accordance with Article 18 of the basic Regulation, of the facts available. If an interested party does not cooperate or cooperates only partially, and use of facts available is made, the result may be less favorable to that party than if it had cooperated.

7.   Processing of personal data

It is noted that any personal data collected in this investigation will be treated in accordance with Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (7).

8.   Hearing Officer

It is also noted that if interested parties consider that they are encountering difficulties in the exercise of their rights of defence, they may request the intervention of the Hearing Officer of the Directorate-General for Trade. He acts as an interface between the interested parties and the Commission services, offering, where necessary, mediation on procedural matters affecting the protection of their interests in this proceeding, in particular with regard to issues concerning access to file, confidentiality, extension of time limits and the treatment of written and/or oral submission of views. For further information and contact details interested parties may consult the Hearing Officer's web pages of the website of the Directorate-General for Trade (http://ec.europa.eu/trade/tackling-unfair-trade/hearing-officer/index_en.htm).

(1)  OJ L 350, 30.12.2008, p. 35.

(2)  OJ L 343, 22.12.2009, p. 51.

(3)  Case T-2/95 Industrie des poudres sphériques (IPS) v Council (1998) ECR II-3939.

(4)  Case C-458/98 P Industrie des poudres sphériques (IPS) v Council (2000) ECR I-08147.

(5)  OJ C 246, 20.10.2007, p. 15.

(6)  This means that the document is for internal use only. It is protected pursuant to Article 4 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p. 43). It is a confidential document pursuant to Article 19 of the basic Regulation and Article 6 of the WTO Agreement on Implementation of Article VI of the GATT 1994 (Anti-dumping Agreement).

(7)  OJ L 8, 12.1.2001, p. 1.