Notice concerning the judgment of 1 June 2017 in case T-442/12 in relation to Council Implementing Regulation (EU) No 626/2012 amending Implementing Regulation (EU) No 349/2012 imposing a definitive anti-dumping duty on imports of tartaric acid originating in the People’s Republic of China

(2017/C 296/04)

Judgment

In its judgment of 1 June 2017 in case T-442/12 Changmao Biochemical Engineering Co. Ltd v Council  (1) (‘the judgment’), the General Court of the European Union (‘the General Court’) annulled Council Implementing Regulation (EU) No 626/2012 of 26 June 2012 amending Implementing Regulation (EU) No 349/2012 imposing a definitive anti-dumping duty on imports of tartaric acid originating in the People’s Republic of China (2) (‘the implementing Regulation’), to the extent that it applies to the Chinese exporting producer Changmao Biochemical Engineering Co. Ltd (‘the exporting producer concerned’).

The General Court ruled that the rights of defence of the exporting producer concerned were breached by the rejection of its request for disclosure of information relating to the price difference between DL tartaric acid and L+ tartaric acid in the context of the normal value calculations without any valid justification provided in due time. The General Court held that it could not be ruled out that if the request had been accepted, the outcome of the investigation could have been different.

Consequences

In accordance with Article 266 of the Treaty on the Functioning of the European Union, the Union’s institutions must take the necessary steps to comply with the judgment.

When taking these necessary steps in order to comply with a judgment annulling a measure and to implement it in full, the procedure underlying such a measure may be resumed at the very point at which the illegality occurred (3).

Accordingly, in complying with the General Court’s judgment of 1 June 2017, the Commission has the possibility to remedy the aspects of the proceeding which led to the annulment, while leaving unchanged those parts which are not affected by the judgment (4).

The annulment of the implementing Regulation was due to the non-adherence to the rights of defence during one step of the administrative proceeding underlying the implementing Regulation; that is, the disclosure of certain information to that exporting producer in the context of the calculation of normal value.

The request of the exporting producer concerned for disclosure of information relating to the price difference between DL tartaric acid and L+ tartaric acid in the context of the normal value calculations should be re-examined in light of the specific circumstances of the case.

Findings reached in the implementing Regulation which were not contested, or which were contested but rejected by the General Court’s judgment or not examined by the General Court, and therefore did not lead to the annulment of the implementing Regulation, remain valid.

Reopening procedure

In view of the above, the Commission has decided to reopen the anti-dumping investigation concerning imports of tartaric acid originating in the People’ Republic of China that led to the adoption of Regulation (EU) No 626/2012, in so far as it concerns the exporting producer concerned, and resumes it at the point at which the irregularity occurred.

This reopening is limited in scope to the implementation of the judgment of the General Court with regard to Changmao Biochemical Engineering Co. Ltd The reopening does not affect other investigations. Council Implementing Regulation (EU) No 349/2012 of 16 April 2012 imposing a definitive anti-dumping duty on imports of tartaric acid originating in the People’s Republic of China following an expiry review pursuant to Article 11(2) of Regulation (EC) No 1225/2009 (5) is, therefore, still applicable in respect of the exporting producer concerned.

Interested parties are informed of this review through the publication of this Notice in the Official Journal of the European Union.

Written submissions

All interested parties, and in particular the exporting producer concerned and the Union industry, 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 within 20 days from the date of publication of this Notice in the Official Journal of the European Union.

Possibility to be heard by the Commission investigation services

The exporting producer concerned and the Union industry 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 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 these parties.

Instructions for making written submissions and sending correspondence

Information submitted to the Commission for the purpose of trade defence investigations should 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 a) the Commission 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 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 as required by Article 19(2) of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (7) (‘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 information may be disregarded.

Interested parties are invited to make all submissions and requests by email including scanned powers of attorney and certification sheets. By using email, 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

Interested parties must indicate their name, address, telephone and a valid email address and they should ensure that the provided email address is a functioning official business email which is checked on a daily basis.

Once contact details are provided, the Commission will communicate with interested parties by email 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 registered mail.

For further rules and information concerning correspondence with the Commission including principles that apply to submissions by email, interested parties should consult the communication instructions with interested parties referred to above.

Commission address for correspondence:

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 will 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.

Hearing Officer

The exporting producer concerned and the Union industry may request the intervention of the Hearing Officer in 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, among other things, to the implementation of the judgment.

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/

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).

Information to customs authorities

The anti-dumping duties paid under Implementing Regulation (EU) No 626/2012 on imports of tartaric acid currently falling within CN code ex 2918 12 00 (TARIC code 2918120090) and originating in the People’s Republic of China, produced by Changmao Biochemical Engineering Co. Ltd (TARIC additional code A688), in excess of the anti-dumping duties imposed by Implementing Regulation (EU) No 349/2012 on the same imports, should be repaid or remitted. The repayment or remission must be requested from national customs authorities in accordance with the applicable customs legislation.

Disclosure

The exporting producer concerned and the Union industry will be subsequently informed of the essential facts and considerations on the basis of which it is intended to implement the judgment and will be given an opportunity to comment.

(1)  Judgment of the General Court of 1 June 2017, Changmao Biochemical Engineering v Council, T-442/12, ECLI:EU:T:2017:372.

(2)  OJ L 182, 13.7.2012, p. 1.

(3)  Judgments of the Court of Justice of 3 October 2000, Industrie des poudres sphériques v Council, C-458/98 P, EU:C:2000:531, paragraphs 80 to 85, as well as of 28 January 2016, CM Eurologistik, C-283/14 and C-284/14, EU:C:2016:57, paragraph 48 to 55.

(4)  Judgment of the Court of Justice of 14 June 2016, Commission v McBride, Case C-361/14 P, EU:C:2016:434, at paragraph 56; see also, in the area of dumping, judgment of the Court of Justice of 3 October 2000, Industrie des poudres sphériques v Council, Case C-458/98 P EU:C:2000:531, at paragraph 84.

(5)  OJ L 110, 24.4.2012, p. 3.

(6)  A ‘Limited’ document is a document which is considered confidential under Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ L 176, 30.6.2016, p. 21) 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 under 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 176, 30.6.2016, p. 21.

(8)  OJ L 8, 12.1.2001, p. 1.