Notice concerning the implementation of judgment of 3 December 2020 in case C-461/18 P 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

(2021/C 507/08)

Judgment in case C-461/18 P

In its judgment of 3 May 2018, in case T-431/12, Distillerie Bonollo SpA and Others v Council of the European Union (1) (‘the judgment of the General Court’), the General Court of the European Union (‘the General Court’) annulled Council Implementing Regulation (EU) No 626/2012 of 26 June 2012 amending Council 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 Regulation at issue’). The Regulation at issue led to an increase of the anti-dumping duties imposed on two exporting producers (Changmao Biochemical Engineering Co. Ltd, from 10,1 % to 13,1 %, and Ninghai Organic Chemical Factory, from 4,7 % to 8,3 %), following an interim review requested by several Union producers.

Specifically, the General Court determined that in the review investigation the Council calculated the normal value of tartaric acid based on costs of production in Argentina, whereas during the initial investigation, the Council calculated the normal value based on Argentinian domestic sales prices. The General Court concluded that this constituted a change in methodology within the meaning of Article 11(9) of Regulation 1225/2009 (3). The General Court annulled the Regulation at issue in its entirety but, following the request by the Union producers, maintained the higher anti-dumping duty imposed on one exporting producer (Ninghai Organic Chemical Factory). As regards Changmao, the General Court had already annulled the Regulation at issue insofar as that exporter was concerned in T-442/12 on the basis of other grounds (4).

On 3 December 2020, in case C-461/18 P Changmao Biochemical Engineering Co. Ltd v Distillerie Bonollo SpA and Others (5), the Court of Justice of the European Union (‘the ECJ’) ruled on the appeal lodged by Changmao Biochemical Engineering Co. Ltd (‘Changmao’) against the judgment of the General Court. The ECJ confirmed the findings of the General Court. As a result, the Regulation at issue was annulled with respect to both Changmao and Ninghai Organic Chemical Factory, but the higher anti-dumping duties remained in place as regards the latter, pending action by the Commission pursuant to Article 266 TFEU.

Consequences

Article 266 TFEU provides that the Institutions must take the necessary measures to comply with the Courts’ judgments.

According to the established case-law, in cases where proceedings consist of several administrative steps, as is the case with the anti-dumping proceedings, the annulment of one of those steps does not annul the complete proceeding (6). Instead, when taking the necessary measures in order to comply with a judgment annulling an act and to implement it, the procedure for replacing an annulled act may be resumed at the point at which the illegality occurred (7).

Accordingly, in complying with the judgments of the General Court and the ECJ (‘the Courts’), the European Commission (“the Commission”) has the possibility to remedy the aspects of the proceedings which led to the annulment, while leaving unchanged those parts which are not affected by the judgment (8).

The Regulation at issue was annulled because the Commission had not used the correct methodology for calculating the normal value of tartaric acid sold by the exporting producers concerned. Therefore, the normal value should be recalculated for both Changmao and Ninghai Organic Chemical Factory using the same methodology that was used in the initial proceedings, i.e. the calculation should be based on Argentinian domestic sales prices.

Findings reached in the Regulation at issue which were not contested, or which were contested but rejected by the judgments of the Courts or were not examined by the Courts, and therefore did not lead to the annulment of the Regulation at issue, remain valid.

Reopening procedure

On 7 September 2017, the Commission already reopened the anti-dumping investigation concerning imports of tartaric acid originating in the People’ Republic of China that led to the adoption of the Regulation at issue in order to implement the judgement of the General Court in case T-422/12 with regard to Changmao (9). However, the implementing obligations stemming from T-422/12 were superseded by the implementing obligations which came from C-461/18 P. Indeed, following C-461/18 P, the Commission should recalculate the normal value also for Changmao. Thus, the disclosure of the method used for calculating normal value for DL tartaric acid in the Regulation at issue would not be sufficient to comply with the findings in C-461/18 P, requiring to recalculate the normal value.

Therefore, through this Notice, the Commission extends the scope of the reopening to implement the findings in C-461/18 P with respect to both Changmao and Ninghai Organic Chemical Factory.

This reopening is limited in scope to the implementation of the judgments of the General Court and of the ECJ. 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 (10) is, therefore, still applicable in respect of Changmao. At the same time, the General Court maintained in force the effects of the Regulation at issue in respect of Ninghai Organic Chemical Factory.

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

Written submissions

All interested parties, and in particular the exporting producers 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 producers 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 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’ (11). 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://webgate.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 G Office: CHAR 04/039 1049 Bruxelles/Brussel BELGIQUE/BELGIË

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

Email: TRADE-AD-R529A-TARTARIC-ACID@EC.EUROPA.EU

Internet: https://trade.ec.europa.eu/tdi/case_details.cfm?id=2280

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

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.

Interested parties are invited to follow the timeframes set out in the Notice also as regards interventions, including hearings, by the Hearing Officer. 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 late 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 on DG Trade’s Internet:

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 (EU) 2018/1725 of the European Parliament and of the Council (12).

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 Internet:

https://ec.europa.eu/trade/policy/accessing-markets/trade-defence/

Disclosure

Interested parties registered during the investigation leading to the adoption of the Regulation at issue 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 3 May 2018, Distillerie Bonollo SpA and Others v Council of the European Union, case T-431/12, ECLI:EU:T:2018:251.

(2) OJ L 182, 13.7.2012, p. 1.

(3) OJ L 343, 22.12.2009, p. 51, replaced by 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: ‘the basic Regulation’).

(4) Judgment of the General Court of 1 June 2017, Changmao Biochemical Engineering v Council, Case T-442/12, ECLI:EU:T:2017:372. In that case, the General Court found an infringement of the rights of the defence and of Article 20(2) of the basic regulation in so far as the institutions had not provided meaningful information on the method used for calculating normal value for DL tartaric acid.

(5) Judgment of the Court of Justice of 3 December 2020, Changmao Biochemical Engineering Co. Ltd v Distillerie Bonollo SpA and Others, case C-461/18 P, ECLI:EU:C:2020:979.

(6) Judgment of 15 October 1998, Industrie des poudres sphériques (IPS) v Council, Case T-2/95, ECLI:EU:T:1998:242.

(7) 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, paragraphs 48 to 55.

(8) 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.

(9) 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 (OJ C 296, 7.9.2017, p 16).

(10) OJ L 110, 24.4.2012, p. 3.

(11) A ‘Sensitive’ document is a document which is considered confidential pursuant to Article 19 of the basic Regulation 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).

(12) 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).