Notice of re-opening of the anti-dumping investigation with regard to Commission Implementing Regulation (EU) 2017/763 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain lightweight thermal paper originating in the Republic of Korea following the judgement of the General Court of 2 April 2020 in Case T-383/17, as upheld by the Court of Justice in case C-260/20 P

(2022/C 248/12)

1. Judgments

In its judgement of 2 April 2020 (1) in Case T-383/17 Hansol Paper v Commission (‘the judgement’), the General Court of the European Union (‘the General Court’) annulled Commission Implementing Regulation (EU) 2017/763 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain lightweight thermal paper originating in the Republic of Korea (‘the regulation at issue’) (2) insofar that it concerned the Hansol Group (Hansol Paper Co. Ltd. and Hansol Artone Paper Co. Ltd.) (‘Hansol’).

Hansol challenged the legality of the regulation at issue on a number of accounts. In one of its pleas in law, Hansol disputed the construction of certain normal values pursuant to Article 2(3) of the basic Regulation. In another plea in law, Hansol argued that the Commission had made a manifest error of assessment in the weighting of sales in the European Union to independent customers as compared with sales to related converters. Hansol claimed that this alleged calculation error distorted the calculation of the dumping margin and also, inter alia, the undercutting margin.

The General Court found that the Commission had infringed Article 2(1) 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 (3) (‘the basic Regulation’) when determining that normal value should be constructed pursuant to Article 2(3) of that Regulation, for a product type sold by Hansol Artone Paper Co. Ltd., whereas there were representative domestic sales by Hansol Paper Co. Ltd. of the same product type. The General Court also found that the alleged weighting error was established and that the Commission should have taken into account the quantities sold by Schades Nordic, one of Hansol Group’s related converters in the Union, to independent customers. The Commission had therefore infringed Article 2(11) of the basic Regulation as the calculations made by the Commission did not reflect the full extent of dumping practiced by Hansol. Moreover, the General Court held that this weighting error also affected the calculation of the undercutting margin, since the Commission had used the same weighting for that calculation. Lastly, the General Court found that the Commission had committed an error when applying Article 2(9) of the basic Regulation by analogy, when it deducted SG&A costs and a profit margin for the resales of the product concerned by the related selling entity in the EU, for the purposes of establishing the export price of that product in the context of the determination of the injury.

On 11 June 2020, the Commission asked the Court of Justice to set aside the judgement of the General Court by lodging an appeal (Case C-260/20 P). On 12 May 2022, the Second Chamber of the Court rejected the appeal and it upheld the findings of the General Court (4). The Court of Justice noted however that, contrary to what the General Court had found, the Commission did not err when applying Article 2(9) of the basic Regulation by analogy in this case. As a result, Commission Implementing Regulation (EU) 2017/763 was annulled insofar as it concerns Hansol.

2. Consequences

Article 266 TFEU provides that the Institutions must take the necessary measures to comply with the Courts’ judgments. In case of annulment of an act adopted by the Institutions in the context of an administrative procedure, such as anti-dumping investigations, compliance with the General Court’s judgement consists in the replacement of the annulled act by a new act, in which the illegality identified by the Court is eliminated (5).

According to the case-law of the Court of Justice, the procedure for replacing the annulled act may be resumed at the very point at which the illegality occurred (6). That implies in particular that in a situation where an act concluding an administrative procedure is annulled, that annulment does not necessarily affect the preparatory acts, such as the initiation of the anti-dumping procedure. In a situation where for instance a regulation imposing definitive anti-dumping measures is annulled, that means that subsequent to the annulment, the anti-dumping proceeding is still open, because the act concluding the anti-dumping proceeding has disappeared from the Union legal order (7), except if the illegality occurred at the stage of initiation.

In the present case, the General Court annulled the regulation at issue for the first three reasons mentioned in the third paragraph under section 1.

The remaining findings and conclusions in the regulation at issue which were not contested, or which were contested but not examined by the General Court, remain valid and are not affected by this re-opening.

3. Re-opening procedure

In view of the above, the Commission decided to reopen the anti-dumping investigation on imports of certain lightweight thermal paper originating in the Republic of Korea that led to the adoption of the regulation at issue, insofar as it concerns Hansol. The re-opening of the original investigation resumes it at the point at which the irregularity occurred.

The purpose of the re-opening of the original investigation is to address the errors identified by the General Court, as upheld by the Court of Justice, and to assess whether the application of the rules as clarified by the General Court and Court of Justice warrants the re-imposition of the measures at the original or a revised level as from the date on which the regulation at issue originally entered into force.

Interested parties are hereby informed that future liability may emanate from the findings of this re-examination.

4. Written submissions

All interested parties, and in particular Hansol, are invited to make their views known, submit information and provide supporting evidence on issues pertaining to the re-opening 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.

5. 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 should be made in writing and should specify the reasons for the request. For hearings on issues pertaining to the re-opening 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 interested parties.

6. 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 the Commission a) 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’ (8). Parties submitting information in the course of this investigation are invited to reason their request for confidential treatment. 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’. Those summaries should 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 requests to be registered as interested parties, scanned powers of attorney and certification sheets. By using TRON.tdi or 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 DG 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 TRON.tdi or 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 via TRON.tdi and by e-mail, 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

Email: TRADE-AD629a-LWTP-REOPENING@ec.europa.eu

7. 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, provisional or final 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. In this case the interested party should immediately contact the Commission.

8. 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 or parties and the Commission 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. The Hearing Officer will examine the reasons for 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/

9. 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 (9).

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

10. Information to customs authorities

As of 1 July 2022, and pending the outcome of this re-examination, the final anti-dumping duty liability on imports of certain lightweight thermal paper weighing 65 g/m2 or less; in rolls of a width of 20 cm or more, a weight of the roll (including the paper) of 50 kg or more and a diameter of the roll (including the paper) of 40 cm or more (‘jumbo rolls’); with or without a base coat on one or both sides; coated with a thermos-sensitive substance on one or both sides; and with or without a top coat, currently falling under CN codes ex 4809 90 00, ex 4811 90 00, ex 4816 90 00 and ex 4823 90 85 (TARIC codes: 4809900010, 4811900010, 4816900010, 4823908520), originating in the Republic of Korea and produced by the Hansol Group (Hansol Paper Co. Ltd. and Hansol Artone Paper Co. Ltd) is suspended.

Since the amount of final liability resulting from the re-examination is uncertain at this stage, the Commission requests national customs authorities to await the outcome of this investigation before deciding on any repayment claim concerning the anti-dumping duty annulled by the General Court with respect to the Hansol Group (Hansol Paper Co. Ltd. and Hansol Artone Paper Co. Ltd).

Consequently, the anti-dumping duty paid under Commission Implementing Regulation (EU) 2017/763 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain lightweight thermal paper originating in the Republic of Korea and produced by the Hansol Group (Hansol Paper Co. Ltd. and Hansol Artone Paper Co. Ltd) should not be repaid or remitted until the outcome of this investigation.

11. Disclosure

All interested parties which have been registered as such during the investigation leading to adoption of the regulation at issue will be informed of the essential facts and considerations on the basis of which the Commission intends to implement the abovementioned judgment in due time and will be given an opportunity to submit their views before a final decision is taken.

(1) ECLI:EU:T:2020:139.

(2) OJ L 114, 3.5.2017, p. 3.

(3) OJ L 176, 30.6.2016, p. 21.

(4) ECLI:EU:C:2022:370.

(5) Joined cases 97, 193, 99 and 215/86 Asteris AE and others and Hellenic Republic v Commission [1988] ECR 2181, paragraphs 27 and 28; and Case T-440/20 Jindal Saw v European Commission, EU:T:2022:318.

(6) Case C-415/96 Spain v Commission [1998] ECR I-6993, paragraph 31; Case C-458/98 P Industrie des Poudres Sphériques v Council [2000] I-8147, paragraphs 80 to 85; Case T-301/01 Alitalia v Commission [2008] II-1753, paragraphs 99 and 142; Joined Cases T-267/08 and T-279/08 Région Nord-Pas de Calais v Commission [2011] II-0000, paragraph 83.

(7) Case C-415/96 Spain v Commission [1998] ECR I-6993, paragraph 31; Case C-458/98 P Industrie des Poudres Sphériques v Council [2000] I-8147, paragraphs 80 to 85.

(8) 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).

(9) 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).