(1)

By Commission Implementing Regulation (EU) 2015/309 (2), the European Commission (‘the Commission’) imposed definitive countervailing duties on imports of certain rainbow trout originating in Türkiye (‘the original investigation’).

(2)

On 4 June 2018, following a partial interim review concerning subsidisation of all exporting producers in accordance with Article 19 of Regulation (EU) 2016/1036 of the European Parliament and of the Council (3) (‘the basic Regulation’), the Commission decided to maintain the measures as established in the original investigation by Commission Implementing Regulation (EU) 2018/823 (4).

(3)

On 15 May 2020, following a partial interim review, in accordance with Article 19 of the basic Regulation, by Commission Implementing Regulation (EU) 2020/658 (5), the Commission amended the level of the countervailing duty for one exporting producer.

(4)

On 25 May 2021, following an expiry review in accordance with Article 18 of the basic Regulation, the Commission extended the measures as established in the original investigation (and as amended by Implementing Regulation (EU) 2020/658) for a further five years by Commission Implementing Regulation (EU) 2021/823 (6).

(5)

On 8 December 2022, following a partial interim review the Commission published Commission Implementing Regulation (EU) 2022/2390 (7) (‘the contested Regulation’) amending the definitive countervailing duty imposed on imports of certain rainbow trout originating in Türkiye by Implementing Regulation (EU) 2021/823.

(6)

On 6 March 2023, Ege İhracatçıları Birliği (Aegean Exporters Association), Akdeniz İhracatçıları Birliği (Mediterranean Exporters Association), İstanbul İhracatçıları Birliği (Istanbul Exporters Association), Doğu Karadeniz İhracatçıları Birliği (Eastern Black Sea Exporters Association), and Denizli İhracatçıları Birliği (Denizli Exporters Association), jointly with their members (‘the applicants’), brought an annulment action before the General Court of the European Union (‘the General Court’) challenging the legality of the contested Regulation.

(7)

On 5 February 2025, the General Court issued its judgment in case T-122/23 (8) Ege İhracatçıları Birliği and others v Commission, partially annulling the contested Regulation, insofar as it concerned the exporting producers Gümüşdoga Su Ürünleri Üretim Ihracat Ithalat AŞ (‘Gümüșdoğa’) and the other applicants, except for Özpekler İnșaat Taahhüt Dayanıklı Tüketim Malları Su Ürünleri Sanayi ve Ticaret Ltd Șirketi and Selina Balık İșleme Tesisi İthalat İhracat Ticaret AȘ (‘the Judgment’).

(8)

The applicants raised several claims challenging the contested Regulation affecting the amounts of benefit found. The General Court ruled in their favour on two claims as it found that the Commission had made two errors of assessment affecting the amounts of benefit, namely the benefit received by way of ‘Exhibition Support Scheme’ and the benefit received by way of ‘Aegean Exporters’ Association support’.

(9)

Firstly, the General Court found that the Commission made a manifest error of assessment when allocating the benefit received by Gümüșdoğa under the ‘Exhibition Support Scheme’ to the product concerned exported to the European Union during the investigation period.

(10)

The General Court established that the support received by Gümüșdoğa under this scheme was linked to its participation in an international trade fair organised in Boston (United States) between 17 and 19 March 2019 and that there was nothing in the file to conclude that the support was also linked to the product concerned exported to the European Union during the investigation. Consequently, the General Court found that the approach followed by the Commission in the contested Regulation did not appear to be substantiated.

(11)

The General Court further noted that it was for the Commission to demonstrate, on the basis of evidence or at least indicia, that, notwithstanding the fact that that support was linked to Gümüșdoğa’s participation in an international trade fair organised in Boston, the support also benefited exports of the product concerned to the European Union during the investigation period concerned.

(12)

Secondly, the General Court ruled that the Commission also made a manifest error of assessment when attributing the benefit received by Gümüșdoğa in respect of ‘Aegean Exporter’s Association support’ to the product concerned exported to the European Union during the investigation period.

(13)

The General Court found that the benefit from the Aegean Exporter’s Association was linked to support in respect of air transport and, during the investigation period concerned, the exports of the product concerned to the European Union were carried out by Gümüșdoğa by road transport and not by air transport.

(14)

Under those circumstances, the General Court found that the approach followed by the Commission, consisting in allocating the benefit received under that scheme to the total export turnover of the group during the relevant period, and then attributed to the product concerned, did not appear to be substantiated.

(15)

The General Court did not annul the measures with respect to two of the sampled exporting producers, Özpekler İnșaat Taahhüt Dayanıklı Tüketim Malları Su Ürünleri Sanayi ve Ticaret Ltd Șirketi and Selina Balık İșleme Tesisi İthalat İhracat Ticaret AȘ, as they did not have an interest in bringing proceedings.

(16)

Article 266 of the Treaty on the Functioning of the European Union (‘TFEU’) provides that the Institutions must take the necessary measures to comply with the judgment. In case of annulment of an act adopted by the Institutions in the context of an administrative procedure, such as the anti-subsidy investigation in this case, 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 General Court is eliminated (9).

(17)

According to the case-law of the Court of Justice of the European Union (‘the Court of Justice’), the procedure for replacing the annulled act may be resumed at the very point at which the illegality occurred (10). 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-subsidy procedure.

(18)

In a situation where for instance a Regulation imposing definitive anti-subsidy measures is annulled, that means that subsequent to the annulment, the anti-subsidy proceeding is still open, because the act concluding the proceeding has disappeared from the Union legal order (11), except if the illegality occurred at the stage of initiation. The resumption of the administrative procedure and the eventual re-imposition of duties cannot be seen as contrary to the rule of non-retroactivity (12).

(19)

In this case the General Court annulled the contested Regulation as regards the exporting producers concerned on the grounds that the Commission had incorrectly allocated the benefit received by one sampled exporting producer from two subsidy schemes.

(20)

The other findings of the contested Regulation which were not contested, or which were contested but rejected by the General Court, remain fully valid and are not affected by this reopening (13).

(21)

Given the judgment of the General Court, the Commission decided to reopen the investigation that led to the contested Regulation and to resume the investigation at the point where the illegality occurred.

(22)

Following the Judgment, on 15 April 2025 the Commission published a Notice (14) (‘the reopening Notice’), reopening the investigation but limited in scope to the implementation of the judgment of the General Court.

(23)

The Commission also published Implementing Regulation (EU) 2025/719 (15) (‘the registration Regulation’) making imports of certain rainbow trout subject to registration and instructed national customs authorities to await the publication of the relevant Commission Implementing Regulation re-imposing the duties before deciding on any claims for repayment and remission of countervailing duties regarding these imports.

(24)

The Commission informed interested parties of the reopening and invited them to comment. One comment was received from the Danish Aquaculture Organisation supporting the imposition of countervailing duties on imports of certain rainbow trout from Türkiye. They made no comments however on the judgment of the General Court.

(25)

No interested party requested a hearing with the Hearing Officer in trade proceedings.

(26)

The General Court decided that the Commission had not correctly allocated the benefit received by Gümüșdoğa from two subsidy schemes during the investigation period.

(27)

For both schemes the Commission had allocated the benefit to export turnover. However, the General Court disagreed with this allocation and set out its reasons in the Judgment.

(28)

The Commission noted that the General Court did not contest the Commission’s findings that both schemes were countervailable and that a benefit was received, and therefore to implement the Judgment the allocation may need to be established differently.

(29)

The WTO case-law stipulates that money giving rise to countervailable subsidies received by exporting producers is fungible (16) and thus could confer benefit to the production and/or exports of the product concerned. Consequently, at the very least the Commission could have allocated the amount of the benefit which is countervailable to the total turnover of the exporting producer.

(30)

However, the Commission noted that, due to the very small amounts that Gümüșdoğa received as benefit for both the ‘Exhibition Support Scheme’ and the ‘Aegean Exporters’ Association support’ scheme, the duty rate for Gümüșdoğa would be adjusted to 4,2 %, irrespective of whether these subsidies were allocated to the product concerned or not taken into account at all.

(31)

Thus, the Commission decided not to countervail the two schemes in question. This led to decrease of the total amount of subsidisation found from 4,4 % to 4,2 %.

(32)

Given that Gümüșdoğa was part of the sample, its subsidy calculations also affected the sample average duty applicable to the following companies that are also affected by the judgment, namely Abalıoğlu Balık ve Gıda Ürünleri A.Ş., Bağcı Balık Gıda ve Enerji Üretimi Sanayi ve Ticaret A.Ş., Ertuğ Balık Üretim Tesisi Gıda ve Tarım İşletmeleri Sanayi ve Ticaret A.Ş., Kemal Balıkçılık İhracat LTD. ŞTİ., Kılıç Deniz Ürünleri Üretimi İhracat ve İthalat A.Ş., Liman Entegre Balıkçılık San ve Tic. Ltd. Şti, More Su Ürünleri Ticaret A.Ş., Ömer Yavuz Balıkçılık Su Ürünleri San. Tic. Ltd. Şti, Premier Kültür Balıkçılığı Yatırım ve Paz. A.Ş., Uluturhan Balıkçılık Turizm Ticaret Limited Şirketi, and Yavuzlar Otomotiv Balıkçılık San. Tic. Ltd. Şti. Their countervailing duty rate was revised down from 4,0 % to 3,8 %.

(33)

Given that the countrywide duty was set at the level of Gümüșdoğa, which received the highest individual duty of the sampled exporting producers, the revised subsidy calculations also affected the duty for one company that is also affected by the judgment, which had received the countrywide countervailing duty, namely Kuzuoğlu Su Ürünleri Sanayi ve Ticaret A.Ş. Its countervailing duty rate was revised down from 4,4 % to 4,2 %.

(34)

The essential facts and considerations on the basis of which the duties were to be revised were disclosed to Gümüșdoğa and other interested parties on 26 June 2025 and they were given a period within which they could comment on the disclosure.

(35)

The Commission received comments on the disclosure from the exporter Uluturhan Balıkçılık Turizm Ticaret Limited Şirketi. However, those comments (relating to the amount of subsidisation for that company) did not relate to the scope of the re-opening of the investigation.

(36)

The Commission also received comments from the exporter Kuzuoğlu Su Ürünleri Sanayi ve Ticaret A.Ş. (‘Kuzuoğlu’) whose situation was described in recital 33 as a company subject to the countrywide duty.

(37)

In its comments Kuzuoğlu made the Commission aware that a notice had been published in the Trade Registry Gazette on 12 January 2022 to change the name of the company Lazsom Su Urunleri Gida Uretim Pazarlama Sanayi Ve Ticaret Limited Sirketi to Kuzuoğlu Su Ürünleri Sanayi ve Ticaret A.Ş. and requested that the Commission reconsider the duty applicable to Kuzuoğlu as disclosed.

(38)

A questionnaire was sent to Kuzuoğlu on 8 July 2025 for the company to confirm whether a name change from Lazsom Su was justified. No reply was received.

(39)

The Commission therefore rejected the request for a name change.

(40)

The revised level of countervailing duty resulting from the reopening of the investigation applies without any interruption from the entry into force of the contested Regulation (namely, as of 9 December 2022 onwards). Customs authorities are instructed to collect the appropriate amount on imports and refund any excess amount collected so far in accordance with the applicable customs legislation.

(41)

In view of Article 109 of Regulation (EU, Euratom) 2024/2509 of the European Parliament and of the Council (17), when an amount is to be reimbursed following a judgment of the Court of Justice of the European Union, the interest to be paid should be the rate applied by the European Central Bank to its principal refinancing operations, as published in the Official Journal of the European Union on the first calendar day of each month.

(42)

The measures provided for in this Regulation are in accordance with the opinion of the Committee established by Article 25(1) of Regulation (EU) 2016/1036,