Notice of re-opening of the safeguard investigation following the judgment of the General Court of 9 November 2022 in Case T-246/19 with regard to Commission Implementing Regulation (EU) 2019/67 imposing safeguard measures with regard to imports of Indica rice originating in Cambodia and Myanmar/Burma

(2023/C 18/05)

1. Judgment

By its judgment of 9 November 2022 in Case T-246/19 Kingdom of Cambodia and Cambodia Rice Federation v Commission (‘the judgment’), the General Court of the European Union (‘the General Court’) annulled Commission Implementing Regulation (EU) 2019/67 of 16 January 2019 imposing safeguard measures with regard to imports of Indica rice originating in Cambodia and Myanmar/Burma (‘the Regulation at issue’) (1), by which the European Commission (the ‘Commission’) reintroduced the Common Customs Tariff duties on imports of that rice for a period of three years and introduced a progressive reduction in the rate of duty applicable insofar as it concerned the imports of rice originating in Cambodia and Myanmar/Burma.

The General Court found that the Commission erred in law and made a manifest error of assessment by arbitrarily limiting the scope of its investigation concerning the injury caused to the Union industry solely to millers of milled or semi-milled Indica rice processed from paddy rice grown or harvested in the European Union. The incorrect definition of Union producers thus also vitiated the analysis of the existence of serious difficulties, since the Commission excluded some of the producers from the injury assessment.

The General Court also found that the Commission failed to provide evidence to the requisite standard with respect to the adjustments made to the undercutting analysis.

Finally, the General Court also found that the Commission infringed the applicants’ rights of defence and the obligation to disclose the essential facts and considerations and the details underlying them. In particular, the Commission failed to disclose the data underlying the consumption and injury indicators and the undercutting analysis and the adjustments made following the comments of the interested parties on the general disclosure document.

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 general safeguard investigations under Regulation (EU) No 978/2012 (2), compliance with the General Court’s judgment consists 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 safeguard procedure. In a situation where, for instance, a regulation imposing general safeguard measures under Regulation (EU) No 978/2012 by which the European Commission reintroduced the Common Customs Tariff duties on imports for a period of three years is annulled, that means that subsequent to the annulment, the safeguard proceeding is still open, because the act concluding the safeguard proceeding has disappeared from the Union legal order (5), except if the illegality occurred at the stage of initiation.

In the present case, the General Court annulled the regulation at issue for the reasons mentioned in 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 safeguard investigation that led to the adoption of the regulation at issue by which the Commission reintroduced the Common Customs Tariff duties on imports of that rice for a period of three years.

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 fully address the errors identified by the General Court, and to assess whether the application of the rules as clarified by the General Court warrants the re-imposition of the measures, which would lead to the reintroduction of the Common Customs Tariff duties on imports of Indica rice originating in Cambodia falling within CN codes 1006 30 27, 1006 30 48, 1006 30 67 and 1006 30 98 during the original period of application (three years, namely between 18 January 2019 and 18 January 2022). Since the measures were terminated, any re-imposition of Common Customs Tariff duties would only concern imports made between 18 January 2019 and 18 January 2022.

4. Written submissions

All interested parties, 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 30 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 from 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 safeguard 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 safeguard 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’ (6). 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 38 of the GSP 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. However, if the supplier of the information wishes neither to make it public nor to authorise its disclosure in general terms or in the form of a summary and if it appears that the request for confidentiality is unjustified, the information concerned may be disregarded.

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 04/39 1049 Bruxelles/Brussel BELGIQUE/BELGIË

Email: TRADE-SAFEGUARD-RICE@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 information available, in accordance with Article 13 of the Commission Delegated Regulation (EU) No 1083/2013 of 28 August 2013.

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, 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

The beneficiary country concerned and interested parties have the right to a general hearing and shall submit a written request within 21 days from the date of publication of this Notice in the Official Journal of the European Union, showing that they are actually likely to be affected by the outcome of the investigation and that there are special reasons for them to be heard orally.

A beneficiary country and interested parties may request the intervention of the Hearing Officer. The Hearing Officer reviews requests for access to the file, disputes regarding the confidentiality of documents, requests for extension of time limits and requests to be heard. 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: https://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 (7).

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

10. Disclosure

A beneficiary country and 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) OJ L 15, 17.1.2019, p. 5.

(2) Regulation (EU) No 978/2012 of the European Parliament and of the Council of 25 October 2012 applying a scheme of generalised tariff preferences and repealing Council Regulation (EC) No 732/2008 (OJ L 303, 31.10.2012, p. 1) (‘Regulation (EU) No 978/2012’).

(3) Joined cases 97, 193, 99 and 215/86 Asteris v Commission EU:C:1988:46, paragraphs 27 and 28; and Case T-440/20 Jindal Saw v European Commission, EU:T:2022:318, paragraph 115.

(4) Case C-415/96 Spain v Commission, EU:C:1998:533, paragraph 31; Case C-458/98 P Industrie des Poudres Sphériques v Council EU:C:2000:531, paragraphs 80 to 85; Case T-301/01 Alitalia v Commission EU:T:2008:262, paragraphs 99 and 142; Joined Cases T-267/08 and T-279/08 Région Nord-Pas de Calais v Commission EU:T:2011:209, paragraph 83.

(5) Case C-415/96 Spain v Commission EU:C:1998:533, paragraph 31; Case C-458/98 P Industrie des Poudres Sphériques v Council EU:C:2000:531, paragraphs 80 to 85.

(6) A ‘Sensitive’ document is a document which is considered confidential pursuant to Article 38 of Regulation (EU) No 978/2012. 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).

(7) 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).