Notice concerning a partial reopening of the anti-dumping investigation concerning imports of zeolite A powder originating in Bosnia and Herzegovina

(2015/C 17/06)

In November 2010, by Regulation (EU) No 1036/2010 (1), the European Commission (‘the Commission’) imposed a provisional anti-dumping duty on imports of zeolite A powder originating in Bosnia and Herzegovina, and in May 2011 a definitive anti-dumping duty was imposed on the same imports by Council Implementing Regulation (EU) No 464/2011 (2) (‘the definitive Regulation’ or ‘the contested Regulation’). Following the adoption of the definitive Regulation, by its Decision of 13 May 2011 (3) (‘the Decision’), the Commission accepted an undertaking by the cooperating exporting producer in Bosnia and Herzegovina, Alumina d.o.o. Zvornik (‘Alumina’), together with its related company in the Union, AB Kauno Teikimsa filialas ‘Kauno Tiekimas’, located in Kaunas, Lithuania.

By its judgment of 30 April 2013 in Case T-304/11, the General Court of the European Union (‘the General Court’) annulled the definitive Regulation in so far as it concerns Alumina. The decision of the General Court was confirmed by the Court of Justice (‘CJ’) in its judgment of 1 October 2014 in Case C-393/13 P.

Hence, imports into the Union of zeolite A powder by Alumina are no longer subject to the anti-dumping measures imposed by the definitive Regulation in conjunction with the Decision.

1.   Information to customs authorities

Consequently, any anti-dumping duties paid pursuant to Council Implementing Regulation (EU) No 464/2011 on imports of zeolite A powder currently falling within CN code ex 2842 10 00 (TARIC code 2842100030) produced and exported by Alumina d.o.o. Zvornik (‘Alumina’) and originating in Bosnia and Herzegovina, should be repaid or remitted. The repayment or remission must be requested from national customs authorities in accordance with applicable customs legislation.

2.   Partial reopening of the anti-dumping investigation

The CJ, through its judgment of 1 October 2014 in Case C-393/13 P, dismissed the appeal against the judgement of the GC which had annulled the definitive Regulation as far as it concerns Alumina. The CJ confirmed the finding of the General Court that the Commission committed an error of assessment in taking into account, for the purposes of constructing normal value, an element (in the form of a risk premium for a specific customer) which was such as to affect the normal character of the sales with the result that that normal value no longer reflected as closely as possible the sale price of a product as it would be if the product in question were sold in the country of origin in the ordinary course of trade.

It is recognised by the Courts (4) 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 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 1 October 2014 of the CJ. 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 partial annulment, while leaving unchanged the uncontested parts which are not affected by the judgment (5). 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 Commission has therefore decided to reopen the anti-dumping investigation concerning imports of zeolite A powder originating in Bosnia and Herzegovina. The reopening is limited in scope to the implementation of the finding of the CJ as recalled above.

3.   Procedure

Having determined, after informing the Member States, that a partial reopening of the anti-dumping investigation is justified, the Commission hereby partially reopens the anti-dumping investigation concerning imports of zeolite A powder originating in Bosnia and Herzegovina, initiated pursuant to Article 5 of the basic Regulation by a notice published in the Official Journal of the European Union  (6).

All interested parties are hereby invited to make their views known, submit information and provide supporting evidence. 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

Subject to the provisions of this notice, all interested parties are hereby invited to make their views known, submit information and provide supporting evidence. Unless otherwise specified, this information and supporting evidence must reach the Commission within 37 days of the date of publication of this notice in the Official Journal of the European Union.

(b)   Hearings

All interested parties may request to be heard by the Commission investigation services. Any request to be heard must be made in writing and must specify the reasons for the request. For hearings on issues pertaining to the initial stage 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 the parties.

5.   Written submissions and correspondence

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’ (7).

Interested parties providing ‘Limited’ information are required to furnish non-confidential summaries of it pursuant to Article 19(2) of 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 an interested party providing confidential information does not furnish a non-confidential summary of it in the requested format and quality, such information may be disregarded.

Interested parties are invited to make all submissions and requests by e-mail 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 e-mail, 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 e-mail address and they should ensure that the provided e-mail address is a functioning official business e-mail which is checked on a daily basis. Once contact details are provided, the Commission will communicate with interested parties by e-mail 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 by e-mail, interested parties should consult the communication instructions with interested parties referred to above.

Commission address for correspondence:

6.   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.

7.   Processing of personal data

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 (8).

8.   Hearing Officer

Interested parties may request the intervention of the Hearing Officer for trade proceedings. The Hearing Officer acts as an interface between the interested parties and the Commission investigation services. The Hearing Officer reviews requests for access to the file, disputes regarding the confidentiality of documents, requests for extension of time limits and requests by third parties to be heard. The Hearing Officer may organise a hearing with an individual interested party and mediate 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. For hearings on issues pertaining to the initial stage 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 specific deadlines set by the Commission in its communication with the parties.

The Hearing Officer will also provide opportunities for a hearing involving parties to take place which would allow different views to be presented and rebuttal arguments offered on issues pertaining to, among other things, to establishing normal value.

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

(1)  OJ L 298, 16.11.2010, p. 27.

(2)  OJ L 125, 14.5.2011, p. 1.

(3)  OJ L 125, 14.5.2011, p. 26.

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

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

(6)  OJ C 40, 17.2.2010, p. 5.

(7)  A ‘Limited’ document is a document which is considered confidential pursuant to Article 19 of Council Regulation (EC) No 1225/2009 (OJ L 343, 22.12.2009, p. 51) 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 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).

(8)  OJ L 8, 12.1.2001, p. 1.