1.   Judgment

In its judgment of 5 February 2025 in case T-122/23 (1), Ege İhracatçıları Birliği and others v Commission (‘the judgment’), the General Court of the European Union (‘the General Court’) partially annulled Commission Implementing Regulation (EU) 2022/2390 of 7 December 2022 amending the definitive countervailing duty imposed on imports of certain rainbow trout originating in Türkiye by Implementing Regulation (EU) 2021/823 following a partial interim review pursuant to Article 19 of Regulation (EU) 2016/1037 of the European Parliament and of the Council (2) (‘the regulation at issue’) insofar as it concerned some exporting producers (Ege İhracatçıları Birliği and the other applicants (‘the 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 applicants raised several claims challenging the regulation at issue affecting the amounts of benefit found. The General Court ruled in their favour on two claims brought forward by the applicants and affecting directly the calculations of the sampled exporting producer Gümüșdoğa Su Ürünleri Üretim Ihracat Ithalat AŞ (‘Gümüșdoğa’).

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.

Under that scheme, the Commission considered funds from the Government of Türkiye which Gümüșdoğa recorded as revenue:

—	first, as a subsidy within the meaning of Article 3(1)(a)(i) of Regulation 2016/1037 that was export contingent, since the funds were intended for the promotion of exports through trade fairs abroad; and

—	second, as a benefit within the meaning of Article 3(2) of Regulation 2016/1037 on account of the amount of revenue received.

The General Court found 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 support the conclusion 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 regulation at issue, consisting of 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. 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.

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.

Under that scheme, the exporting producers could benefit from funds intended to cover air cargo transport costs.

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. 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.

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. The grounds for annulment, since they concerned the subsidy calculations for one sampled exporting producer on which the residual duty was based, have an impact on both the companies listed in the Annex of the regulation at issue as well as the rate for all other companies.

2.   Consequences

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 Courts' judgments. In case of annulment of an act adopted by the Institutions in the context of an administrative procedure, such as anti-subsidy investigations, compliance with the General 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 (3).

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 (4). That implies 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.

In a situation where for instance a Regulation amending anti-subsidy measures in force is annulled, that means that the anti-subsidy proceeding is still open after the annulment, because the act concluding the anti-subsidy proceeding has disappeared from the Union legal order (5), except if the illegality occurred at the stage of initiation.

In the present case, the General Court annulled the regulation at issue on two points for the same reason, as set out above. The remaining findings and conclusions in the regulation at issue which were not contested, or which were contested but not examined by the General Court remain valid and are not affected by this reopening.

3.   Reopening procedure

In view of the above, the Commission decided to reopen the anti-subsidy investigation on imports of certain rainbow trout from Türkiye that led to the adoption of the regulation at issue. The reopening of the original investigation resumes them at the point at which the irregularity occurred.

The purpose of the reopening of the original investigation is to fully address the mistakes identified by the General Court and to assess whether the application of the rules as clarified by the General Court warrants the reimposition of the measures at the original or a revised level as from the date on which the regulation at issue originally entered into force.

Interested parties are hereby informed that future liability may result from the findings of this re-examination.

4.   Written submissions

All interested parties, and particularly the ones listed in the judgment, 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 through TRON.tdi within 20 days from the date of publication of this Notice in the Official Journal of the European Union.

5.   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 through TRON.tdi 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 interested parties.

6.   Instructions for making written submissions and sending correspondence

Information submitted to the Commission for the purpose of trade defence investigations shall be free from copyright. Interested parties, before submitting to the Commission information and/or data which is subject to third party copyright, must request specific permission to the copyright holder explicitly allowing the Commission a) 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 ‘Sensitive’  (6). Parties submitting information during this investigation are invited to reason their request for confidential treatment. Parties providing ‘Sensitive’ information are required to furnish non-confidential summaries of it pursuant to Article 29(2) of the basic anti-subsidy Regulation, which will be labelled ‘For inspection by interested parties’. Those summaries should 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 should make all submissions and requests via TRON.tdi (https://tron.trade.ec.europa.eu/tron/TDI) including requests to be registered as interested parties.

By using TRON.tdi 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 DG Trade: https://europa.eu/!7tHpY3

Commission address for correspondence:

European Commission

Directorate-General for Trade and Economic Security

Directorate G

Office: CHAR 04/039

1049 Bruxelles/Brussel

BELGIQUE/BELGIË

Email: TRADE-R749-TROUT-SUBSIDY@ec.europa.eu

7.   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, provisional or final findings, affirmative or negative, may be made based on facts available, in accordance with Article 28 of the basic anti-subsidy 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 28 of the basic anti-subsidy 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. In this case the interested party should immediately contact the Commission.

8.   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 or parties and the Commission 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. The Hearing Officer will examine the reasons for requests for interventions, 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 https://policy.trade.ec.europa.eu/contacts/hearing-officer_en

9.   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 (7).

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 https://policy.trade.ec.europa.eu/enforcement-and-protection/trade-defence_en

10.   Information to customs authorities

As of 16 April 2025, and pending the outcome of this re-examination, the final countervailing duty liability on imports of certain rainbow trout currently falling under CN codes ex 0301 91 90 , ex 0302 11 80 , ex 0303 14 90 , ex 0304 42 90 , ex 0304 82 90 , ex 0305 43 00 and ex 1604 19 10 (TARIC codes 0301 91 90 11, 0302 11 80 11, 0303 14 90 11, 0304 42 90 10, 0304 82 90 10, 0305 43 00 11 and 1604 19 10 11), originating in Türkiye and produced by companies other than Özpekler İnşaat Taahhüd Dayanıklı Tüketim Malları Su Ürünleri Sanayi ve Ticaret Limited Şirketi and Selina Balık İşleme Tesisi İthalat İhracat Ticaret Anonim Şirketi is suspended.

Since the amount of final liability resulting from the re-examination is uncertain at this stage, the Commission requests national customs authorities to await the outcome of this investigation before deciding on any repayment claim concerning the countervailing duties annulled by the General Court with respect to those companies.

Consequently, the countervailing duties paid respectively under Commission Implementing Regulation (EU) 2022/2390 of 7 December 2022 amending the definitive countervailing duty imposed on imports of certain rainbow trout by Implementing Regulation (EU) 2021/823 following a partial interim review pursuant to Article 19 of Regulation (EU) 2016/1037, currently falling under CN codes ex 0301 91 90 , ex 0302 11 80 , ex 0303 14 90 , ex 0304 42 90 , ex 0304 82 90 , ex 0305 43 00 and ex 1604 19 10 (TARIC codes 0301 91 90 11, 0302 11 80 11, 0303 14 90 11, 0304 42 90 10, 0304 82 90 10, 0305 43 00 11 and 1604 19 10 11), originating in Türkiye and produced by Gümüşdoga Su Ürünleri Üretim Ihracat Ithalat AŞ, the companies listed in the Annex to Regulation (EU) 2022/2390 as well as companies subject to the all other companies rate should not be repaid or remitted until the outcome of this investigation.

11.   Disclosure

All interested parties which have been registered as such during the investigation leading to adoption of the regulation at issue will be informed of the essential facts and considerations based on which the Commission intends to implement the abovementioned judgments in due time and will be given an opportunity to submit their views before a final decision is taken.

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(1)  ECLI:EU:T:2025:133.

(2)   OJ L 316, 8.12.2022, p. 52, ELI: http://data.europa.eu/eli/reg_impl/2022/2390/oj.

(3)  Joined cases 97, 193, 99 and 215/86 Asteris AE and others and Hellenic Republic v Commission [1988] ECR 2181, paragraphs 27 and 28.

(4)  Case C-415/96 Spain v Commission [1998] ECR I-6993, paragraph 31; Case C-458/98 P Industrie des Poudres Sphériques v Council [2000] I-8147, paragraphs 80 to 85; Case T-301/01 Alitalia v Commission [2008] II-1753, paragraphs 99 and 142; Joined Cases T-267/08 and T-279/08 Région Nord-Pas de Calais v Commission [2011] II-0000, paragraph 83.

(5)  Case C-415/96 Spain v Commission [1998] ECR I-6993, paragraph 31; Case C-458/98 P Industrie des Poudres Sphériques v Council [2000] I-8147, paragraphs 80 to 85.

(6)  A ‘Sensitive’ document is a document which is considered confidential pursuant to Article 19 of the basic Regulation and Article 12 of the WTO Agreement on Subsidies and Countervailing Measures. It is also a document protected pursuant to 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) 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).