Notice concerning the anti-subsidy measures on imports of certain polyethylene terephthalate originating, inter alia, in Pakistan and a partial reopening of the anti-subsidy investigation concerning imports of certain polyethylene terephthalate originating, inter alia, in Pakistan

2013/C 138/10

By its judgment of 11 October 2012 in Case T-556/10, the General Court of the European Union (‘the General Court’) annulled Article 1 of Council Implementing Regulation (EU) No 857/2010 of 27 September 2010 imposing a definitive countervailing duty and collecting definitively the provisional duty imposed on imports of certain polyethylene terephthalate originating in Iran, Pakistan and the United Arab Emirates (1) (‘the definitive anti-subsidy Regulation’ or ‘the contested Regulation’) in so far as it concerns the Pakistani exporting producer Novatex Ltd (‘Novatex’ or ‘the company concerned’), in so far as the definitive countervailing duty for imports of certain types of polyethylene terephthalate into the European Union exceeds that applicable in the absence of an error concerning the amount indicated in line 74 of the 2008 tax return.

1.   Partial reopening of the anti-subsidy investigation

The General Court found that the Commission and the Council had infringed Article 3(2) of Council Regulation (EC) No 597/2009 of 11 June 2009 on protection against subsidised imports from countries not members of the European Community (2) (‘the basic Regulation’) as, in determining the subsidy amount for Novatex under the Final Tax Regime, they should have taken account of the fact that line 74 of the 2008 tax return of the company concerned had been revised.

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-subsidy proceeding is an example of such a multi-step proceeding. Consequently, the annulment of parts of the definitive anti-subsidy 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 11 October 2012 of the General Court. 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 (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 Commission has thus decided to reopen the anti-subsidy investigation concerning imports of certain polyethylene terephthalate originating, inter alia, in Pakistan initiated pursuant to the basic Regulation. The reopening is limited in scope to the implementation of the finding of the General Court as far as Novatex is concerned.

2.   Procedure

Having determined, after consulting the Advisory Committee, that a partial reopening of the anti-subsidy investigation is justified, the Commission hereby partially reopens the anti-subsidy investigation concerning imports of certain polyethylene terephthalate originating, inter alia, in Pakistan initiated pursuant to Article 10 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 implementation of the abovementioned judgment as far as the determination of the subsidy amount for Novatex under the Final Tax Regime and the consequent impact thereof on the countervailing duty rate applicable to Novatex is concerned.

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 3(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 3(b).

3.   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.

4.   Written submissions and correspondence

All written submissions, including the information requested in this notice and correspondence provided by interested parties for which confidential treatment is requested shall be labelled ‘Limited’ (6).

Interested parties providing ‘Limited’ information are required to furnish non-confidential summaries of it pursuant to Article 29(2) of the basic Regulation, which will be labelled ‘For inspection by interested parties’. These summaries should 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 confidential information may be disregarded.

Interested parties are required to make all submissions and requests in electronic format (non-confidential submissions via e-mail, confidential ones on CD-R/DVD), and must indicate the name, address, e-mail address, telephone and fax numbers of the interested party. However, any powers of attorney, and any updates thereof, must be submitted on paper, i.e. by post or by hand, at the address below. If an interested party cannot provide its submissions and requests in electronic format, it must immediately contact the Commission in compliance with Article 28(2) of the basic Regulation. For further information concerning correspondence with the Commission, interested parties may consult the relevant web page on the website of the Directorate-General for Trade: http://ec.europa.eu/trade/tackling-unfair-trade/trade-defence

Commission address for correspondence:

5.   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 28 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 28 of the basic Regulation, of the 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 Regulation, the result may be less favourable to that party than if it had cooperated.

6.   Hearing Officer

Interested parties may request the intervention of the Hearing Officer for the Directorate-General for Trade. 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 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/tackling-unfair-trade/hearing-officer/index_en.htm

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 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).

(1)  OJ L 254, 29.9.2010, p. 10.

(2)  OJ L 188, 18.7.2009, p. 93.

(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 208, 3.9.2009, p. 7.

(6)  A ‘Limited’ document is a document which is considered confidential pursuant to Article 29 of Council Regulation (EC) No 597/2009 (OJ L 188, 18.7.2009, p. 93) 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)  OJ L 8, 12.1.2001, p. 1.