(1)

On 4 May 2018, the Commission (‘the Commission’) adopted Regulation (EU) 2018/683 (3) imposing a provisional anti-dumping duty on imports of certain pneumatic tyres, new or retreaded, of rubber, of a kind used for buses or lorries, with a load index exceeding 121 originating in the People’s Republic of China (‘the provisional Regulation’).

(2)

On 18 October 2018, the Commission adopted Implementing Regulation (EU) 2018/1579 (4) imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain pneumatic tyres, new or retreaded, of rubber, of a kind used for buses or lorries, with a load index exceeding 121 originating in the People’s Republic of China.

(3)

On 9 November 2018, the Commission adopted Implementing Regulation (EU) 2018/1690 (5) imposing definitive countervailing duties on imports of certain pneumatic tyres, new or retreaded, of rubber, of a kind used for buses or lorries and with a load index exceeding 121 originating in the People’s Republic of China and amending Implementing Regulation (EU) 2018/1579.

(4)

China Rubber Industry Association (CRIA) and China Chamber of Commerce of Metals, Minerals & Chemicals Importers & Exporters (‘CCCMC’) brought annulment actions before the General Court challenging the legality of the regulations at issue.

(5)

CRIA and CCCMC raised several claims challenging the regulations at issue and the General Court ruled on two of those: (i) the Commission’s failure to carry out a fair price comparison in the calculation of the price undercutting and of the injury margins, and (ii) certain complaints alleging, in essence, inconsistencies and breach of the rights of the defence regarding injury indicators and the weighting of data from the sample of Union producers.

(6)

On 4 May 2022, the General Court issued its judgment in cases T-30/19 and T-72/19, annulling both Implementing Regulation (EU) 2018/1579 (anti-dumping) and Implementing Regulation (EU) 2018/1690 (anti-subsidy).

(7)

Regarding the calculation of the undercutting margins, the General Court found that the Commission conducted an unfair comparison when it made an adjustment to the export price – the deduction of the related importer’s SG&A and a notional profit – when sales were made through a related trader in the Union. The Court noted that Union producers also made some sales via related entities, and their sales prices were not adjusted. The General Court concluded that the calculation of the price undercutting margins carried out by the Commission in the contested regulations was vitiated by an error of law and a manifest error of assessment and that, as a result, that calculation infringed Article 3(2) and (3) of the basic anti-dumping Regulation and Article 8(1) and (2) of the basic anti-subsidy Regulation. Furthermore, the General Court found that the errors had an impact on the overall injury and causality findings as well as on the injury margins, and that it was not possible to determine precisely to what extent the definitive anti-dumping and countervailing duties at issue remained well founded in part. Therefore, the regulations imposing those duties upon the applicants were annulled.

(8)

In relation to the second point, the General Court found that the Commission did not carry out an objective examination (as required by Article 3(2) of the basic anti-dumping regulation and Article 8(1) of the basic anti-subsidy regulation) because, by not revising the calculations of all microeconomic indicators other than profitability, and not setting out the revised figures in the contested regulation, the Commission did not use all relevant data available to it. In addition, the General Court found a breach of the applicants’ right of defence. In particular, the General Court disagreed that some information not disclosed to parties could be considered confidential, and it found that all the data at issue was ‘linked to findings of fact in the contested regulation’. Therefore, they were ‘essential facts and considerations’ that should have been disclosed to parties.

(9)

In light of the above, the General Court annulled the anti-dumping regulation at issue insofar as the companies represented by CRIA and CCCMC (listed in Annex I) were concerned.

(10)

In addition, the General Court annulled the anti-subsidy regulation at issue insofar as the companies represented by CRIA and CCCMC (listed in Annex II) were concerned.

(11)

The Commission analysed whether it is appropriate to make the imports of the product concerned subject to registration. In that context, the Commission took the following considerations into account.

(12)

Article 266 TFEU provides that the Institutions must take the necessary measures to comply with the Courts’ judgments. In case of annulment of an act adopted by the Institutions in the context of an administrative procedure, such as anti-dumping or anti-subsidy investigations, compliance with the General Court’s judgment consists in the replacement of the annulled act by a new act, in which the illegality identified by the Court is eliminated (6).

(13)

According to the case-law of the Court of Justice, the procedure for replacing the annulled act may be resumed at the very point at which the illegality occurred (7). 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 for instance 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 (8), except if the illegality occurred at the stage of initiation.

(14)

As explained in the re-opening Notice, and since the illegality did not occur at the stage of initiation but at the stage of the investigation, the Commission decided to re-open the anti-dumping and anti-subsidy investigations in so far as they concern the companies listed in Section 1.2 above, and resumed them at the point at which the irregularity occurred.

(15)

According to the case-law of the Court of Justice, the resumption of the administrative procedure and the eventual re-imposition of duties cannot be seen as contrary to the rule of non-retroactivity (9). The re-opening Notice informed interested parties, including importers, that any future liability, if warranted, would emanate from the findings of the re-examination.

(16)

Based on its new findings and the outcome of the re-opened investigations, which is unknown at this stage, the Commission may adopt regulations revising, where warranted, the applicable duty rates. Those revised rates, if any, will take effect as from the date on which the regulations at issue entered into force.

(17)

For this purpose, the Commission requested national customs authorities to await the outcome of the re-examination before deciding on any repayment claim concerning the anti-dumping and/or countervailing duties annulled by the General Court. Customs authorities are thus directed to put on hold any claims for reimbursements of the annulled duties until the outcome of the re-examination is published in the Official Journal of the European Union.

(18)

Furthermore, should the re-opening investigations lead to the re-imposition of measures, duties should also be collected for the period during which the re-opening investigations are carried out.

(19)

In this respect, the Commission notes that registration is a tool provided in Articles 14(5) of the basic anti-dumping Regulation and Article 24(5) of the basic anti-subsidy Regulation so that measures may subsequently be applied against imports from the date of the registration (10). In the present case, the Commission deems it appropriate to register imports concerning the companies listed in Section 1.2 above with a view to facilitating the collection of anti-dumping and countervailing duties once their levels are revised in line with the General Court ruling (11).

(20)

In line with the jurisprudence of the Court of Justice (12), contrary to registration taking place during the period before the adoption of provisional measures, the conditions of Article 10(4) of the basic anti-dumping Regulation and Article 16(4) of the basic anti-subsidy Regulation are not applicable to the case at hand. Indeed, the purpose of registration in the context of Court implementation is not to allow the possible retroactive collection of trade defence measures as envisaged in those provisions. The purpose is rather to safeguard the effectiveness of the measures in place, without undue interruption from the date of entry into force of the regulations at issue until the re-imposition of the corrected duties, by ensuring that the collection of measures in the correct amount is possible in the future.

(21)

In light of the above considerations, the Commission considered that there were grounds for registration pursuant to Article 14(5) of the basic anti-dumping Regulation and Article 24(5) of the basic anti-subsidy Regulation.

(22)

On the basis of the above, imports of the product concerned produced by the companies listed in Section 1.2 above must be made subject to registration (13).

(23)

As indicated in the re-opening Notice, the final liability for payment of anti-dumping and countervailing duties, if any, from the date of entry into force of the anti-dumping and anti-subsidy Regulations at issue will emanate from the findings of the re-examination.

(24)

No duties higher than the duties established in the Regulations at issue may be collected for the period between the publication of the notice of re-opening and the date of entry into force of the results of the re-opening investigations,