Notice of initiation of an expiry review of the anti-subsidy measures applicable to imports of certain rainbow trout originating in the Republic of Turkey

(2020/C 64/07)

Following the publication of a Notice of impending expiry (1) of the anti-subsidy measures in force on the imports of certain rainbow trout originating in the Republic of Turkey (‘the country concerned’), the European Commission (‘the Commission’) received a request for review pursuant to Article 18 of Regulation (EU) 2016/1037 of the European Parliament and of the Council of 8 June 2016 on protection against subsidised imports from countries not members of the European Union (2) (‘the basic Regulation’).

1. Request for review

The request was lodged on 25 November 2019 by the Danish Aquaculture Organisation (‘TDAO’ or ‘the applicant’) on behalf of producers representing more than 40 % of the total Union production of rainbow trout.

An open version of the request, including the information provided by the applicant and considered by the Commission, as well as the analysis of the degree of support by Union producers for the request are available in the file for inspection by interested parties. Section 5.6 of this Notice provides information about access to the file for interested parties.

2. Product under review

The product subject to this review is rainbow trout (Oncorhynchus mykiss):

— live weighing 1,2 kg or less each, or

— fresh, chilled, frozen and/or smoked:

— in the form of whole fish (with heads on), whether or not gilled, whether or not gutted, weighing 1,2 kg or less each, or

— with heads off, whether or not gilled, whether or not gutted, weighing 1 kg or less each, or

— in the form of fillets weighing 400 g or less each,

originating in the Republic of Turkey (‘the country concerned’) and 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 and ex 0305 43 00 (TARIC codes 0301919011, 0302118011, 0303149011, 0304429010, 0304829010 and 0305430011) (‘the product under review’).

3. Existing measures

The measures currently in force are a definitive countervailing duty imposed by Commission Implementing Regulation (EU) 2015/309 (3).

4. Grounds for the review

The request is based on the grounds that the expiry of the measures would be likely to result in continuation of subsidisation and continuation or recurrence of injury to the Union industry.

4.1. Allegation of likelihood of continuation of subsidisation

The applicant provided sufficient evidence that the producers of the product under review in the country concerned have benefitted and are likely to continue to benefit from a number of subsidies granted by the government of the country concerned.

The alleged subsidy practices consist of, inter alia, (potential) direct transfer of funds, such as direct subsidies for the production of the product under review, preferential loans and preferential insurance granted to producers of the product under review.

The applicant alleges that the measures described are subsidies since they involve a financial contribution from the government of the country concerned and confer a benefit to producers of the product under review. Those subsidies are alleged to be specific to an industry or contingent upon export performance and therefore countervailable.

In view of Article 18(2) of the basic Regulation, the Commission prepared a memorandum on sufficiency of evidence containing the Commission’s assessment of all the evidence at its disposal and on the basis of which the Commission initiates this investigation. That memorandum can be found in the file for inspection by interested parties.

The Commission reserves the right to investigate other relevant subsidy practices, which may be revealed during the course of the investigation.

4.2. Allegation of likelihood of continuation or recurrence of injury

The applicant has provided sufficient evidence showing likelihood of continuation or recurrence of injury.

The applicant has provided evidence that imports of the product under review from the country concerned to the Union have remained significant in absolute terms and in terms of market share.

The applicant has also provided evidence that, should the measures be allowed to lapse, the current import level of the product under review from the country concerned to the Union is likely to increase due to the continued undercutting of EU sales prices by the Turkish imports, the devaluation of the Turkish lira and the attractiveness of the Union market. The applicant finally alleges that any substantial increase of imports at subsidised prices from the country concerned would be likely to cause further injury to the Union industry should the measures be allowed to lapse.

5. Procedure

Having determined, after consulting the Committee established by Article 25(1) of the basic Regulation, that sufficient evidence of a likelihood of subsidisation and injury exists to justify the initiation of an expiry review, the Commission hereby initiates a review in accordance with Article 18 of the basic Regulation.

The expiry review will determine whether the expiry of the measures would be likely to lead to a continuation or recurrence of subsidisation of the product under review originating in the country concerned and a continuation or recurrence of injury to the Union industry.

The government of the country concerned was invited for consultations in accordance with Article 10(7) of the basic Regulation.

The Commission further recalls that Regulation (EU) 2018/825 of the European Parliament and of the Council (4), which entered into force on 8 June 2018 (TDI Modernisation package), introduced a number of changes to the timetable and deadlines previously applicable in anti-subsidy proceedings. The time-limits for interested parties to come forward, in particular at the early stage of investigations, are shortened.

5.1. Review investigation period and period considered

The investigation of a continuation or recurrence of subsidisation will cover the period of 1 January 2019 until 31 December 2019 (‘the review investigation period’). The examination of trends relevant for the assessment of the likelihood of a continuation or recurrence of injury will cover the period starting on 1 January 2016 to the end of the review investigation period (‘the period considered’).

5.2 Comments on the request and the initiation of the investigation

All interested parties wishing to comment on the request (including matters pertaining to injury and causality) or any aspects regarding the initiation of the investigation (including the degree of support for the request) must do so within 37 days of the date of publication of this Notice.

Any request for a hearing with regard to the initiation of the investigation must be submitted within 15 days of the date of publication of this Notice.

5.3. Procedure for the determination of a likelihood of continuation or recurrence of subsidisation

In an expiry review, the Commission examines exports that were made to the Union in the review investigation period and, irrespective of exports to the Union, considers whether the situation of the companies producing and selling the product under review in the country concerned is such that exports at subsidised prices to the Union would be likely to continue or recur if measures expire.

Therefore, all producers (5) of the product under review, irrespective of whether or not they exported (6) the product under review to the Union in the review investigation period, are invited to participate in the Commission investigation.

5.3.1. Investigating producers in the country concerned

In view of the potentially large number of producers in the country concerned involved in this expiry review and in order to complete the investigation within the statutory time limits, the Commission may limit the producers to be investigated to a reasonable number by selecting a sample (this process is also referred to as ‘sampling’). The sampling will be carried out in accordance with Article 27 of the basic Regulation.

In order to enable the Commission to decide whether sampling is necessary, and if so, to select a sample, all producers, or representatives acting on their behalf, including the ones who did not cooperate in the investigation leading to the measures subject to this review, are hereby requested to provide the Commission with information on their companies within 7 days of the date of publication of this Notice. This information must be provided via TRON.tdi at the following address: https://tron.trade.ec.europa.eu/tron/tdi/form/769e6287-131e-a09f-10ea-8bb251e33089. Tron access information can be found in sections 5.6 and 5.9 below.

In order to obtain the information it deems necessary for the selection of the sample of producers, the Commission will also contact the authorities of the country concerned and may contact any known associations of producers in the country concerned.

If a sample is necessary, the producers will be selected based on the largest representative volume of production, sales or exports which can reasonably be investigated within the time available. All known producers, the authorities of the country concerned and associations of producers will be notified by the Commission, via the authorities of the country concerned if appropriate, of the companies selected to be in the sample.

In order to obtain information it deems necessary for its investigation with regard to producers in the country concerned, the Commission will make questionnaires available to the producers selected to be in the sample, to any known associations of producers, and to the authorities of the country concerned.

Once the Commission has received the necessary information to select a sample of producers, it will inform the parties concerned of its decision whether they are included in the sample. The sampled producers will have to submit a completed questionnaire within 30 days from the date of notification of the decision of their inclusion in the sample, unless otherwise specified.

The Commission will add a note to the file for inspection by interested parties reflecting the sample selection. Any comment on the sample selection must be received within 3 days of the date of notification of the sample decision.

A copy of the questionnaire for producers in the country concerned is available in the file for inspection by interested parties and on DG Trade’s website (7).

Without prejudice to the possible application of Article 28 of the basic Regulation, companies that have agreed to their possible inclusion in the sample but are not selected to be in the sample will be considered to be cooperating (‘non-sampled cooperating producers’).

5.3.2. Investigating unrelated importers (8) (9)

Unrelated importers of the product under review from the country concerned to the Union, including those that did not cooperate in the investigation leading to the measures in force, are invited to participate in this investigation.

In view of the potentially large number of unrelated importers involved in this expiry review and in order to complete the investigation within the statutory time limits, the Commission may limit to a reasonable number the unrelated importers that will be investigated by selecting a sample (this process is also referred to as ‘sampling’). Sampling will be carried out in accordance with Article 27 of the basic Regulation.

In order to enable the Commission to decide whether sampling is necessary and, if so, to select a sample, all unrelated importers, or representatives acting on their behalf, including the ones who did not cooperate in the investigation leading to the measures subject to the present review, are hereby requested to make themselves known to the Commission. These parties must to do so within 7 days of the date of publication of this Notice by providing the Commission with the information on their company(ies) requested in the Annex to this Notice.

In order to obtain information it deems necessary for the selection of the sample of unrelated importers, the Commission may also contact any known associations of importers.

If a sample is necessary, the importers may be selected based on the largest representative volume of sales of the product under review from the country concerned in the Union which can reasonably be investigated within the time available. All known unrelated importers and associations of importers will be notified by the Commission of the companies selected to be in the sample.

The Commission will also add a note to the file for inspection by interested parties reflecting the sample selection. Any comment on the sample selection must be received within 3 days of the date of notification of the sample decision.

In order to obtain the information it deems necessary for its investigation, the Commission will make available questionnaires to the sampled unrelated importers. Those parties must submit a completed questionnaire within 30 days from the date of the notification of the sample selection, unless otherwise specified.

A copy of the questionnaire for unrelated importers is available in the file for inspection by interested parties and on DG Trade’s website (10).

5.4. Procedure for the determination of a likelihood of a continuation or recurrence of injury

In order to establish whether there is a likelihood of a continuation or recurrence of injury to the Union industry, Union producers of the product under review are invited to participate in the Commission investigation.

In view of the large number of Union producers involved in this expiry review and in order to complete the investigation within the statutory time limits, the Commission has decided to limit to a reasonable number the Union producers that will be investigated by selecting a sample (this process is also referred to as ‘sampling’). The sampling is carried out in accordance with Article 27 of the basic Regulation.

The Commission has provisionally selected a sample of Union producers. Details can be found in the file for inspection by interested parties. Interested parties are hereby invited to comment on the provisional sample. In addition, other Union producers, or representatives acting on their behalf, that consider that there are reasons why they should be included in the sample must contact the Commission within 7 days of the date of publication of this Notice. All comments regarding the provisional sample must be received within 7 days of the date of publication of this Notice, unless otherwise specified.

All known Union producers and/or associations of Union producers will be notified by the Commission of the companies finally selected to be in the sample.

The sampled Union producers will have to submit a completed questionnaire within 30 days from the date of notification of the decision of their inclusion in the sample, unless otherwise specified.

A copy of the questionnaire for Union producers is available in the file for inspection by interested parties and on DG Trade’s website (11).

5.5. Procedure for the assessment of Union interest

Should the likelihood of continuation or recurrence of subsidisation and continuation or recurrence of injury be confirmed, a decision will be reached, pursuant to Article 31 of the basic Regulation, as to whether maintaining the countervailing measures would not be against the Union interest.

Union producers, importers and their representative associations, users and their representative associations, trade unions and representative consumer organisations are invited to provide the Commission with information on the Union interest. In order to participate in the investigation, the representative consumer organisations have to demonstrate that there is an objective link between their activities and the product under review.

Information concerning the assessment of Union interest must be provided within 37 days of the date of publication of this Notice unless otherwise specified. This information may be provided either in a free format or by completing a questionnaire prepared by the Commission. A copy of the questionnaires, including the questionnaire for users of the product under review, is available in the file for inspection by interested parties and on DG Trade’s website (12). In any case, information submitted pursuant to Article 31 will only be taken into account if supported by factual evidence at the time of submission.

5.6. Interested parties

In order to participate in the investigation interested parties, such as producers in the country concerned, Union producers, importers and their representative associations, users and their representative associations, trade unions and representative consumer organisations first have to demonstrate that there is an objective link between their activities and the product under review.

Producers in the country concerned, Union producers, importers and representative associations who made information available in accordance to the procedures described in sections 5.3, 5.4 and 5.5 will be considered as interested parties if there is an objective link between their activities and the product under review.

Other parties will only be able to participate in the investigation as interested party from the moment they make themselves known, and provided that there is an objective link between their activities and the product under review. Being considered as an interested party is without prejudice to the application of Article 28 of the basic Regulation.

Access to the file available for inspection for interested parties is made via TRON.tdi at the following address: https://tron.trade.ec.europa.eu/tron/TDI. Please follow the instructions on that page to get access.

5.7. Other written submissions

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.

5.8. 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 must be made in writing and must specify the reasons for the request as well as a summary of what the interested party wishes to discuss during the hearing. The hearing will be limited to the issues set out by the interested parties in writing beforehand.

In principle, hearings will not be used to present factual information which is not yet on file. Nevertheless, in the interest of good administration and to enable Commission services to progress with the investigation, interested parties may be directed to provide new factual information after a hearing.

5.9. Instructions for making written submissions and sending completed questionnaires and correspondence

Information submitted to the Commission for the purpose of trade defence investigations shall be free from copyrights. Interested parties, before submitting to the Commission information and/or data which is subject to third party copyrights, 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, 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 (13)’. Parties submitting information in the course of this investigation are invited to reason their request for confidential treatment.

Interested parties providing ‘Sensitive’ 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 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 are invited to make all submissions and requests via TRON.tdi (https://tron.trade.ec.europa.eu/tron/TDI) including scanned powers of attorney and certification sheets. By using TRON.tdi or 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. The 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 TRON.tdi or 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 a registered mail. For further rules and information concerning correspondence with the Commission including principles that apply to submissions via TRON.tdi and by email, interested parties should consult the communication instructions with interested parties referred to above.

Commission address for correspondence:

European Commission Directorate-General for Trade Directorate H Office: CHAR 04/039 1049 Bruxelles/Brussel BELGIQUE/BELGIË

TRON.tdi: https://tron.trade.ec.europa.eu/tron/tdi

Email addresses: TRADE-R720-TROUT-SUBSIDY@ec.europa.eu,

TRADE-R720-TROUT-INJURY@ec.europa.eu

6. Schedule of the investigation

The investigation shall normally be concluded within 12 months and in any event no later than 15 months from the date of the publication of this Notice, pursuant to Article 22(1) of the basic Regulation.

7. Submission of information

As a rule, interested parties may only submit information in the timeframes specified in section 5 of this Notice.

In order to complete the investigation within the mandatory deadlines, the Commission will not accept submissions from interested parties after the deadline to provide comments on the final disclosure or, if applicable, after the deadline to provide comments on the additional final disclosure.

8. Possibility to comment on other parties’ submissions

In order to guarantee the rights of defence, interested parties should have the possibility to comment on information submitted by other interested parties. When doing so, interested parties may only address issues raised in the other interested parties’ submissions and may not raise new issues.

Comments on the information provided by other interested parties in reaction to the disclosure of the definitive findings should be submitted within 5 days from the deadline to comment on the definitive findings, unless otherwise specified. If there is an additional final disclosure, comments filed by other interested parties in reaction to this further disclosure should be made within 1 day from the deadline to comment on this further disclosure, unless otherwise specified.

The outlined timeframe is without prejudice to the Commission’s right to request additional information from interested parties in duly justified cases.

9. Extension to time limits specified in this Notice

Extensions to time-limits provided for in this Notice may be granted upon request of interested parties showing due cause.

Any extension to the time-limits provided for in this Notice should only be requested in exceptional circumstances and will only be granted if duly justified. In any event, any extension to the deadline to reply to questionnaires will be limited normally to 3 days, and as a rule will not exceed 7 days. Regarding time limits for the submission of other information specified in the Notice of Initiation, extensions will be limited to 3 days unless exceptional circumstances are demonstrated.

10. 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 28 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 28 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.

11. 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/-ies and Commissions 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. Where hearing requests are submitted outside the relevant timeframes, the Hearing Officer will also examine the reasons for such late requests, 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 on DG Trade’s website: http://ec.europa.eu/trade/trade-policy-and-you/contacts/hearing-officer/.

12. Possibility to request a review under Article 19 of the basic Regulation

As this expiry review is initiated in accordance with the provisions of Article 18 of the basic Regulation, the findings thereof will not lead to the existing measures being amended but will lead to those measures being repealed or maintained in accordance with Article 22(3) of the basic Regulation.

If any interested party considers that a review of the measures is warranted so as to allow for the possibility to amend the measures, that party may request a review pursuant to Article 19 of the basic Regulation.

Parties wishing to request such a review, which would be carried out independently of the expiry review mentioned in this Notice, may contact the Commission at the address given above.

13. 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 (14).

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 on DG Trade’s website: http://ec.europa.eu/trade/policy/accessing-markets/trade-defence/.

(1) OJ C 209, 20.6.2019, p. 34.

(2) OJ L 176, 30.6.2016, p. 55.

(3) Commission Implementing Regulation (EU) 2015/309 of 26 February 2015 imposing a definitive countervailing duty and collecting definitively the provisional duty imposed on imports of certain rainbow trout originating in the Republic of Turkey (OJ L 56, 27.2.2015, p. 12).

(4) Regulation (EU) 2018/825 of the European Parliament and of the Council of 30 May 2018 amending Regulation (EU) 2016/1036 on protection against dumped imports from countries not members of the European Union and Regulation (EU) 2016/1037 on protection against subsidised imports from countries not members of the European Union (OJ L 143, 7.6.2018, p. 1).

(5) A producer is any company in the country concerned which produces the product under review, including any of its related companies involved in the production, domestic sales or exports of the product under review.

(6) An exporting producer is any company in the country concerned which produces and exports the product under review to the Union market, either directly or via third party, including any of its related companies involved in the production, domestic sales or exports of the product under review.

(7) https://trade.ec.europa.eu/tdi/case_details.cfm?id=2450

(8) Only importers not related to exporting producers can be sampled. Importers that are not related to exporting producers have to fill in Annex I to the questionnaire for these exporting producers. In accordance with Article 127 of Commission Implementing Regulation (EU) 2015/2447 of 24 November 2015 laying down detailed rules for implementing certain provisions of Regulation (EU) No 952/2013 of the European Parliament and of the Council laying down the Union Customs Code, two persons shall be deemed to be related if: (a) they are officers or directors of the other person’s business; (b) they are legally recognised partners in business; (c) they are employer and employee; (d) a third party directly or indirectly owns, controls or holds 5 % or more of the outstanding voting stock or shares of both of them; (e) one of them directly or indirectly controls the other; (f) both of them are directly or indirectly controlled by a third person; (g) together they control a third person directly or indirectly; or (h) they are members of the same family (OJ L 343, 29.12.2015, p. 558). Persons shall be deemed to be members of the same family only if they stand in any of the following relationships to one another: (i) husband and wife, (ii) parent and child, (iii) brother and sister (whether by whole or half blood), (iv) grandparent and grandchild, (v) uncle or aunt and nephew or niece, (vi) parent-in-law and son-in-law or daughter-in-law, (vii) brother-in-law and sister-in-law. In accordance with Article 5(4) of Regulation (EU) No 952/2013 of the European Parliament and of the Council laying down the Union Customs Code, ‘person’ means a natural person, a legal person, and any association of persons which is not a legal person but which is recognised under Union or national law as having the capacity to perform legal acts (OJ L 269, 10.10.2013, p. 1).

(9) The data provided by unrelated importers may also be used in relation to aspects of this investigation other than the determination of Union interest.

(10) https://trade.ec.europa.eu/tdi/case_details.cfm?id=2450

(11) https://trade.ec.europa.eu/tdi/case_details.cfm?id=2450

(12) https://trade.ec.europa.eu/tdi/case_details.cfm?id=2450

(13) This document is for internal use only. It is 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). It is a confidential document pursuant to Article 29 of Regulation (EU) 2016/1037 and Article 12.4 of the WTO Agreement on Subsidies and Countervailable Measures (SCM Agreement).

(14) 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.