Notice of re-opening the investigation following the judgment of 20 September 2019, in Case T‑650/17, with regard to Commission Implementing Regulation (EU) 2017/1146 of 28 June 2017 re-imposing a definitive anti-dumping duty on imports of threaded tube or pipe cast fittings, of malleable cast iron and spheroidal graphite cast iron, originating in the People’s Republic of China, manufactured by Jinan Meide Castings Co., Ltd

(2019/C 403/03)

Judgment

In its judgement of 20 September 2019, in Case T-650/17 (1) Jinan Meide Casting Co., Ltd, v Commission (‘the judgement’), the General Court of the European Union (‘the General Court’) annulled Commission Implementing Regulation (EU) 2017/1146 of 28 June 2017 re-imposing a definitive anti-dumping duty on imports of threaded tube or pipe cast fittings, of malleable cast iron and spheroidal graphite cast iron, originating in the People’s Republic of China, manufactured by Jinan Meide Castings Co., Ltd (2) (‘the anti-dumping Regulation at issue’).

The Court examined all four pleas in law raised by the applicant and rejected three of them as unfounded. Only one of the four pleas was upheld. According to the General Court, the Commission adopted an unreasonable methodology to reflect the differences in physical characteristics between product types produced in the analogue country and those exported from China. In the absence of data relating to domestic production in the analogue country, the Commission used the difference in prices observed for the export sales of the various product types from China. According to the General Court, the Commission could not assume that prices likely to be affected by dumping form the basis for a reasonable estimate of the market value of differences in physical characteristics as such prices may not be the result of normal market forces.

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 or anti-subsidy investigations, compliance with the General Court’s judgement may consist in the replacement of the annulled act by a new act, in which the illegality identified by the Court is eliminated (3).

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 (4). 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 (5), except if the illegality occurred at the stage of initiation. The resumption of the administrative procedure cannot be seen as contrary to the rule of non-retroactivity (6)..

In the present case, the General Court annulled the anti-dumping Regulation at issue for one reason (namely, that the Commission made and error when determining the normal value of non-matching product types).

Findings reached in the anti-dumping Regulation at issue which were not contested, or which were contested but rejected by the judgment of the General Court, and therefore did not lead to the annulment of the Regulation at issue, remain in principle valid.

Re-opening procedure

In view of the above, the Commission has decided to re-open the anti-dumping investigation on imports of threaded tube or pipe cast fittings, of malleable cast iron and spheroidal graphite cast iron originating in China that led to the adoption of Regulation (EU) 2017/1146, in so far as it concerns Jinan Meide Castings Co., Ltd (‘Jinan Meide’), and resumes it at the point at which the irregularity occurred.

The purpose of the re-opening of the investigation is to fully address the mistakes identified by the General Court and to assess whether the correct application of the rules could justify the re-imposition of the measures at the original or a revised level as from the date on which the anti-dumping Regulation at issue entered into force originally or not.

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

Written submissions

All interested parties, and in particular Jinan Meide, 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.

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 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 ‘Limited’ (7). Parties submitting information in the course of this investigation are invited to reason their request for confidential treatment.

Interested parties providing ‘Limited’ 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, with the exception of voluminous replies which shall be submitted on a CD-ROM or DVD by hand or by registered mail. 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://webgate.ec.europa.eu/tron/tdi

Email: TRADE-MALLEABLE-FITTINGS-DUMPING@ec.europa.eu

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 anti-dumping 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.

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/

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 (8).

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://trade.ec.europa.eu/doclib/html/157639.htm

Information to all parties concerned

Interested parties, including importers, are hereby informed that future liability, if any, would emanate from the findings of this re-examination.

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 duties annulled by the General Court with respect to Jinan Meide Castings Co., Ltd.

Consequently, the anti-dumping duties paid under Implementing Regulation (EU) 2017/1146 on imports of threaded tube or pipe cast fittings, of malleable cast iron and spheroidal graphite cast iron, excluding bodies of compression fittings using ISO DIN 13 metric thread and malleable iron threaded circular junction boxes without having a lid, currently falling under CN codes ex 7307 19 10 (TARIC code 7307191010) and ex 7307 19 90 (TARIC code 7307199010), originating in the People’s Republic of China, manufactured by Jinan Meide (TARIC additional code B336) should not be repaid or remitted until the outcome of this investigation (9).

Disclosure

Interested parties which have been registered as such during the investigation leading to adoption of the anti-dumping 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) ECLI:EU:T:2019:644.

(2) OJ L 166, 29.6.2017, p. 23.

(3) Joined Cases 97, 193, 99 and 215/86 Asteris AE and others and Hellenic Republic v Commission [1988] ECR 2181, paragraphs 27 and 28.

(4) 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.

(5) 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.

(6) Case C-256/16 Deichmann [2018], paragraph 79.

(7) 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).

(8) 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).

(9) By Implementing Regulation (EU) 2019/262, the Commission amended the product description and the references to TARIC codes (OJ L 44, 15.2.2019, p. 6).