CELEX: 52012PC0555
Language: en
Date: 2012-09-26
Title: Proposal for a COUNCIL IMPLEMENTING REGULATION re-imposing a definitive anti-dumping duty on imports of ironing boards originating in the People's Republic of China, manufactured by Zhejiang Harmonic Hardware Products Co. Ltd

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		52012PC0555
		
			Proposal for a COUNCIL IMPLEMENTING REGULATION re-imposing a definitive anti-dumping duty on imports of ironing boards originating in the People's Republic of China, manufactured by Zhejiang Harmonic Hardware Products Co. Ltd /* COM/2012/0555 final - 2012/0263 (NLE) */
			
				
		
		
			
			   	EXPLANATORY MEMORANDUM
1.           CONTEXT OF THE PROPOSAL
•           Grounds for and objectives of
the proposal
This proposal concerns the application of
Council Regulation (EC) 1225/2009 of 30 November 2009 on protection against
dumped imports from countries not members of the European Community, ('the
basic Regulation') in the partial reopening of the anti-dumping proceeding
concerning imports of ironing boards originating in the People's Republic of
China (‘China’).
•           General context
This proposal is made in the context of the
implementation of a judgement of the General Court on the implementation of the
basic Regulation and is the result of an investigation which was carried out in
line with the substantive and procedural requirements laid out in the basic
Regulation.
•           Existing provisions in the area
of the proposal
Council Regulation (EC) No 452/2007 of 23
April 2007[1].
•           Consistency with other policies
and objectives of the Union
Not applicable.
2.           RESULTS OF CONSULTATIONS WITH THE
INTERESTED PARTIES AND IMPACT ASSESSMENTS
            •           Consultation of
interested parties
Interested parties concerned by the
proceeding have had the possibility to defend their interests during the
investigation, in line with the provisions of the basic Regulation.
            •           Collection and use
of expertise
There was no need for external expertise.
            •           Impact assessment
This proposal is the result of the
implementation of the basic Regulation.
The basic Regulation does not provide for a
general impact assessment but contains an exhaustive list of conditions that
have to be assessed.
3.           LEGAL ELEMENTS OF THE PROPOSAL
•           Summary of the proposed action
On 2 March 2012, the Commission announced
by a notice (‘notice of partial reopening’), published in the Official
Journal of the European Union[2],
the partial reopening of the anti-dumping investigation concerning imports of
ironing boards originating, inter alia, in China.
This reopening was triggered by the
annulment by the General Court of the Council Regulation (EC) No 452/2007 in so
far as it concerns one Chinese exporting producer ('Harmonic'). In line with
Article 266 of Treaty on the Functioning of the European Union, the
institutions of the European Union are obliged to comply with the judgment of
the General Court. Consequently, the European Commission initiated the partial
reopening of the anti-dumping investigation in so far it concerns Harmonic. 
The enclosed Commission proposal for a
Council Regulation re-imposing the anti-dumping duty on Harmonic is made upon
the interested parties having been given sufficient time to provide comments to
the revised final disclosure document of 23 March 2007. In addition, Harmonic was
given sufficient time to offer undertakings, but it did not submit any.
It is proposed that the Council adopt the
attached proposal for a Regulation which should be published in the Official
Journal of the European Union as soon as possible.
•           Legal basis
Council Regulation (EC) 1225/2009 of 30
November 2009 on protection against dumped imports from countries not members
of the European Community.
•           Subsidiarity principle
The proposal falls under the exclusive
competence of the Union. The subsidiarity principle therefore does not apply.
•           Proportionality principle
The proposal complies with the
proportionality principle because the form of action is described in the
above-mentioned basic Regulation and leaves no scope for national decision.
Indication of how financial and
administrative burden falling upon the Union, national governments, regional
and local authorities, economic operators and citizens is minimized and
proportionate to the objective of the proposal is not applicable.
•           Choice of instruments
Proposed instruments: Council Regulation.
Other means would not be adequate because
the basic Regulation does not provide for alternative options.
4. Budgetary
implication
The proposal has no implication for the Union
budget. 
2012/0263 (NLE)
Proposal for a
COUNCIL IMPLEMENTING REGULATION 
re-imposing a definitive anti-dumping duty
on imports of ironing boards originating in the People's Republic of China, manufactured by Zhejiang Harmonic Hardware Products Co. Ltd 
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the
Functioning of the European Union, 
Having regard to Council Regulation (EC)
1225/2009 of 30 November 2009 on protection against dumped imports from
countries not members of the European Community[3]
('the basic Regulation'), and in particular Article 9 thereof,
Having regard to the proposal from the
European Commission ('the Commission') after consulting the Advisory Committee,
Whereas:
A. PROCEDURE
(1)       By Regulation (EC) No
452/2007[4]
('the contested Regulation'), the Council imposed definitive anti-dumping
duties ranging from 9,9 % to 38,1 % on imports of ironing boards, whether or
not free-standing, with or without a steam soaking and/or heating top and/or
blowing top, including sleeve boards, and essential parts thereof, i.e. the
legs, the top and the iron rest originating in the People's Republic of China ('China')
and Ukraine.
(2)       On 19 July 2007, one
co-operating Chinese exporting producer, namely Zhejiang Harmonic Hardware
Products Co. Ltd ('Harmonic'), lodged an application at the General Court ('the
Court of First Instance' before the entry into force of the Lisbon Treaty)
seeking the annulment of the contested Regulation in so far as it applies to
the applicant[5].

(3)       On
8 November 2011, the General Court in its judgment in case T-274/07 ('the General Court judgment') found that the
failure to comply with the period prescribed by Article 20(5) of the basic Regulation
was such as in fact to affect the rights of defence of Harmonic, and that the
Commission also infringed Article 8 of the basic Regulation, which conferred on
Harmonic the right to offer undertakings up to the expiry of that period.
Therefore, the General Court annulled Articles 1 and 2 of the contested
Regulation in so far as they impose a
definitive anti-dumping duty and collect definitively the provisional duty on
ironing boards manufactured by Harmonic.
(4)       According
to Article 266 of the Treaty on the Functioning of the European Union ('TFEU'), the Union institutions are obliged
to comply with the General Court judgment of 8 November 2011. It is established
case law (case T-2/95[6],
the 'IPS case') that, in cases where a proceeding
consists of several administrative steps, the annulment of one of those steps
does not annul the complete proceeding. The anti-dumping proceeding is an
example of such a multi-step proceeding. Consequently, the annulment of the
contested Regulation in relation to one party does not imply the annulment of
the entire procedure prior to the adoption of that Regulation. Moreover, according
to the Court's case law, in order to comply with a
judgment annulling a measure and to implement it fully, the institution who
took the measure should resume the procedure at the very point at which the
illegality occurred and replace that measure[7].
Finally, the implementation of a court ruling also
implies the possibility to remedy the aspects of the contested Regulation which
led to its annulment, while leaving unchanged the uncontested parts which are
not affected by the General Court judgment – as was held in case C-458/98 P[8]
('the IPS appeal case'). It should be noted that apart
from the finding of an infringement of Article 20(5) and
of Article 8 of the basic Regulation, all other
findings made in the contested Regulation remain automatically valid to the
extent that the General Court rejected all claims made in this respect. 
(5)       Following
the General Court judgment of 8 November 2011, a notice[9] was published concerning the
partial reopening of the anti-dumping investigation concerning imports of
ironing boards originating, inter alia, in China. The reopening was
limited in scope to the implementation of the General Court judgment in so far
as Harmonic is concerned. 
(6)       The
Commission officially advised the exporting producers, importers and users
known to be concerned, the representatives of the exporting country and the
Union industry of the partial reopening of the investigation. Interested
parties were given the opportunity to make their views known in writing and to
request a hearing within the time-limit set out in the notice.
(7)       All parties who so
requested within the above time-limit and who demonstrated that there were
particular reasons why they should be heard were granted the opportunity to be
heard.
(8)       Representations were
received from one exporting producer in China (the party directly concerned,
i.e. Harmonic) and one
unrelated importer.
(9)       All parties concerned were
informed of the essential facts and considerations on the basis of which it was
intended to recommend the imposition of definitive anti-dumping duties on
Harmonic. They were granted a period within which to make representations
subsequent to disclosure, but none reacted at that stage. 
B.        IMPLEMENTATION OF THE GENERAL
COURT JUDGMENT
1.           Preliminary
remark
(10)     It
is recalled that the reason for the annulment of the contested Regulation was
that the Commission sent its proposal to impose a definitive anti-dumping duty
to the Council before the end of the 10-day mandatory deadline as set out by
Article 20(5) of the basic Regulation for receiving comments following the
sending to interested parties of a definitive disclosure document and that the Commission also infringed Article 8 of the basic Regulation, which
conferred on Harmonic the right to offer undertakings up to the expiry of that
period.
2.           Comments of interested
parties
(11)     Harmonic stated that a
breach of the rights of defence of the type identified by the General Court
cannot be cured by the re-opening of the investigation. The General Court
judgment would require no implementing measures.
(12)     For Harmonic, the only way
for the Commission to comply with the judgment of General Court as required by
Article 266 TFEU would be to withdraw the measures permanently as far as
Harmonic was concerned. The violation of Article 8 fo the basic Regulation
would require the EU institutions to restore Harmonic's right to offer price
undertakings back in 2007.
(13)     According to Harmonic the
re-opening would be illegal because there is no specific provision in the basic
Regulation allowing for such an approach and because such re-opening would be
in conflict with the 15-month statutory deadline for the completion of an investigation
as set by Article 6(9) of the basic Regulation and the 18-month deadline as set
out by Article 5.10 of the WTO Agreement on Implementation of Article VI of the
GATT 1994 (Anti-dumping Agreement). It alleged that the EU institutions cannnot
purport to re-impose measures based on their powers to adopt definitive
measures (in particular Article 9 of the basic Regulation) and at the same time
deny that these deadlines in the same provision of the basic Regulation apply.
(14)     Harmonic submitted that the
IPS case could not serve as a precedent because it was based on Council
Regulation (EЕC) No 2423/88
of 11 July 1988 on protection against dumped or subsidized imports from
countries not members of the European Economic Community[10] ("the old basic
Regulation"), under which mandatory deadlines did not apply yet. 
(15)     Harmonic also argued that reissuing
a revised disclosure and granting a period to reply in line with Article 20(5)
of the basic Regulation could not correct the violation of Harmonic's rights of
defence and the unlawful imposition of duties. 
(16)     According to Harmonic, once
the Commission's proposal for definitive measures was submitted to the Council in
2007, the Commission irremediably lost its ability to make a proposal to the
Council to impose duties against Harmonic without breaching the company's
rights of defence. In Harmonic's view, the Commission would no longer be in a
position to receive any comments with the required room for manoeuvre and
consider Harmonic's proposal for an undertaking. 
(17)     Harmonic submits that its
right to offer price undertakings within the prescribed period cannot be
corrected by procedurally re-opening the originial investigation. In addition,
Harmonic alleges that the recital (68) of the contested Regulation apparently
included the assessment of a formal price undertaking offered by Harmonic.
(18)     Furthermore, Harmonic
argued that the Commission could not reopen the case because it would have lost
its objectivity and impartiality since the contested Regulation proposed by the
Commission was partially annulled by the General Court.
(19)     It finally pointed out that
the Commission could not re-impose anti-dumping measures based on information
relating to 2005, a period that is more than six years prior to the initiation
of the partial re-opening of the investigation as this would not be in line
with Article 6(1) of the basic Regulation. 
(20)     One unrelated Union
importer/producer pointed out the repercussions of the General Court’s
annulment and the subsequent partial reopening of the investigation on its
business. It did not submit any information and data as to the legal merits of
the re-investigation but rather referred to the comments submitted in the
context of a previous re-investigation, that was concluded by Council
Implementing Regulation (EU) No 805/2010 of 13 September 2010 re-imposing a definitive
anti-dumping duty on imports of ironing boards originating in the People's
Republic of China manufactutered by Foshan Shunde Yongjian Housewares and
Hardware Co. Ltd, Foshan[11].
3.           Analysis of comments 
(21)     It is recalled that the General
Court has rejected all the substantive arguments of Harmonic referring to the
merits of the case. Thus, the Union institutions' obligation is focused on
correcting the part of the administrative procedure where the irregularity
occurred in the initial investigation.
(22)     The claim that the
introduction of a 15-month deadline by Article 6(9) of the basic Regulation to
conclude anti-dumping investigations prevents the Commission from following the
approach underlying the IPS case was found to be unwarranted. It is considered
that this deadline is not relevant for the implementation of a judgment of the General
Court. Indeed, such deadline only governs the completion of the original
investigation from the date of initiation to the date of definitive action, and
does not concern any subsequent action that might have to be taken for instance
as a result of judicial review. Furthermore, it is noted that any other
interpretation would mean that, for example, a successful legal action brought
by the Union industry would be without any practical effect for that party if
it is accepted that the expiry of the time-limit to conclude the original
investigation would not allow for the implementation of a judgment of the General
Court. This would be at odds with the principle that all parties should have
the right to effective judicial review.
(23)     It is also recalled that
the General Court in its judgment in joined cases T-163/94 and T-165/94[12] has held that even the soft
deadline applicable under the old basic Regulation could not be stretched
beyond reasonable limits and found that an investigation lasting for more than
three years was too long. This contrasts with the IPS case where the
implementation of a previous Court of Justice judgment occurred almost seven
years after the initiation of the original investigation and the Court of
Justice judgment contains no indication that deadlines were an issue. 
(24)     Therefore, it is concluded
that Article 6(9) of the basic Regulation applies to the initiation of
proceedings and the conclusion of the investigation initiated pursuant to
Article 5(9) of the basic Regulation only and not to a partial reopening of an
investigation with a view to implementing a judgment of the General Court.
(25)     This conclusion is in line
with the approach taken for the implementation of WTO panels and Appellate Body
reports where it is accepted that institutions could amend deficiencies of a
regulation imposing anti-dumping duties in order to comply with dispute
settlement body reports, including in cases concerning the Union[13]. In such cases it was felt
necessary to adopt special procedures to implement WTO panel and Appellate Body
reports because of the lack of direct applicability of such reports in the
Union legal order, contrary to the implementation of the judgments of the General
Court which are directly applicable.
(26)     It is recalled that Article
9 of the basic Regulation does not concern deadlines for conducting
anti-dumping investigations. It concerns general issues related to terminations
without measures and imposition of definitive duties.
(27)     With respect to the
arguments submitted on the application of Article 6(1) of the basic Regulation,
it is noted that no infringement of Article 6(1) of the basic Regulation could
be established since the Commission has not opened a new proceeding but
reopened the original investigation to implement the General Court judgment.
(28)     As regards Harmonic's allegation
concerning the breach of its right to offer price undertakings, it should be
noted that Harmonic's argument is twofold: first, Harmonic alleges that it is
not legally, practically of realistically possible for the Commission to
retroactively backdate a price undertaking for a period of almost five years;
second, Harmonic claims that on the one hand, Recital (68) of the contested
Regulation would include the assessment of a formal price undertaking offered
by Harmonic and that, on the other hand, the Commission would sustain that any
price undertakings that could have been submitted by Harmonic would have been
rejected anyway, because they would be impractical to monitor. 
(29)     Regarding Harmonic's
allegation on the re-opening of the original investigation in order to remedy
the infringement of its right to offer price undertakings within a prescribed
period, the re-opening is justified given that Harmonic's right to offer
undertakings was infringed in the context of the original investigation. In any
event, in the absence of a formal price undertaking offered by Harmonic, the
discussion of its potential effects is devoid of purpose.
(30)     In addition, as to Harmonic's
interpretation of recital (68) of the contested Regulation, it should be
pointed out that that recital simply takes stock of the fact that there were
discussions about potential price undertakings proposed by some exporting
producers and of the reasons why the institutions deemed undertakings in
general impractical at that point in time. Harmonic's claim that the recital
apparently includes the assessment of a (non-submitted) formal price undertaking
offered by Harmonic is thus unfounded. 
(31)     Moreover, it is noted that the
arguments put forward in recital (68) of the contested Regulation do not
prejudge formal price undertakings offers that could be made at a later stage,
but set out the reasons why the acceptance of price undertakings is unlikely in
this case, in particular if the concerns about their practicability are not
properly addressed. As provided for in Article 8(3) of the basic Regulation,
undertakings offered need not be accepted if their acceptance is considered
impractical. 
4.           Conclusion
(32)     Account taken of the
comments made by the parties and the analysis thereof it was concluded that the
implementation of the General Court judgment should take the form of
re-disclosure to Harmonic and all other interested parties of the revised
definitive disclosure document of 23 March 2007 on the basis of which it was
proposed to re-impose an anti-dumping duty on imports of ironing boards
manufactured by Harmonic.
(33)     On the basis of the above it
was also concluded that the Commission should give Harmonic and all other
interested parties enough time to provide comments on the revised definitive
disclosure document of 23 March 2007 and then evaluate such comments in order
to determine whether to make a proposal to the Council to re-impose the anti‑dumping
duty on imports of ironing boards manufactured by Harmonic on the basis of the
facts relating to the original investigation period.
C.        DISCLOSURE
(34)     Interested parties were
informed of the essential facts and considerations on the basis of which it was
intended to implement the General Court judgment.
All interested
parties were given an opportunity to comment, applying the 10-day period
prescribed in Article 20(5) of the basic Regulation. 
(35)     Harmonic and all other
interested parties received the revised definitive disclosure document dated 23
March 2007 on the basis of which it was proposed to re-impose the anti-dumping
duty on imports of ironing boards from Harmonic on the basis of the facts relating
to the original investigation period.
Harmonic and all
other interested parties were given an opportunity to comment on the
above-mentioned revised definitive disclosure document dated 23 March 2007.
(36)     Article 8 of the basic
Regulation conferred on Harmonic the right to offer undertakings up to the
expiry of the 10-day period prescribed in Article 20(5) of the basic Regulation.

(37)     Neither Harmonic nor other
interested parties submitted any comment or offered any undertaking within the
established deadline.
D.        DURATION OF MEASURES
(38)     This procedure does not
affect the date on which the measures imposed by the contested Regulation will
expire pursuant to Article 11(2) of the basic Regulation. It is noted in this
regard that on 25 April 2012 a notice of initiation of an expiry review of the
anti-dumping measures applicable to imports of ironing boards originating in
the People's Republic of China and Ukraine[14]
was published in the Official Journal of the European Union,
HAS ADOPTED THIS REGULATION:
Article 1
(1)                   
A definitive anti-dumping duty is hereby
re-imposed on imports of ironing boards, whether or not free-standing, with or
without a steam soaking and/or heating top and/or blowing top, including sleeve
boards, and essential parts thereof, i.e. the legs, the top and the iron rest
originating in the People’s Republic of China, currently falling within CN
codes ex 3924 90 00, ex 4421 90 98, ex 7323 93 00, ex 7323 99 00, ex 8516 79 70
and ex 8516 90 00 (TARIC codes 3924 90 00 10, 4421 90 98 10, 7323 93 00 10,
7323 99 00 10, 8516 79 70 10 and 8516 90 00 51) and manufactured by Zhejiang
Harmonic Hardware Products Co. Ltd Guzhou (TARIC additional code A786).
(2)                   
The rate of the definitive anti-dumping duty
applicable to the net, free-at-Union-frontier price, before duty, shall be 26,5 %.
(3)                   
Unless otherwise specified, the provisions in
force concerning customs duties shall apply.
Article 2
This Regulation shall enter into force on
the day following that of its publication in the Official Journal of the
European Union.
This Regulation shall be binding
in its entirety and directly applicable in all Member States.
Done at Brussels, 
                                                                       For
the Council
                                                                       The
President
[1]               OJ L 109, 26.4.2007, p. 12.
[2]               OJ C 63, 2.3.2012, p. 10.
[3]               OJ L 343, 22.12.2009, p. 51, as last amended by
Regulation (EU) No. 765/2012 of 13 June 2012, OJ L 237, 3.9.2012, p. 1.
[4]               OJ L 109, 26.4.2007, p. 12.
[5]               Case T-274/07 Zhejiang Harmonic Hardware Products Co.
Ltd v Council of the European Union.
[6]               Case
T-2/95 Industrie des poudres sphériques (IPS) v Council [1998] ECR II-3939.
[7]               Case C-415/96 Spain v Commission [1998] ECR I-6993, paragraph 31.
[8]               Case
C-458/98 P Industrie des poudres sphériques (IPS) v Council [2000] ECR I-08147.
[9]               OJ C 63, 2.3.2012, p. 10.
[10]             OJ
L 209, 2.8.1988, p. 1.
[11]             OJ
L 242, 15.9.2010, p. 1.
[12]             Joint cases T-163/94 and 165/94 NTN Corporation and
Koyo Seiko Co. Ltd v Council [1995] ECR II-01381.
[13]             European Communities-Antidumping Duties on Imports of
Cotton-Tyle Bed Linen from India: Recourse to Article 21.5 of the DSU by India
WT/DS141/AB/RW (8 April 2003), paragraphs 82-86; Council Regulation (EC) No
1515/2001 of 23 July 2001 on the measures that may be taken by the Community
following a report adopted by the WTO Dispute Settlement Body concerning
anti-dumping and anti-subsidy matters (OJ L 201, 26.7.2001, p.10); Council
Regulation (EC) No 436/2004 of 8 March 2004 amending Regulation (EC)
No 1784/2000 imposing a definitive anti-dumping duty and collecting
definitively the provisional duty imposed on imports of certain malleable cast
iron tube or pipe fittings originating in Brazil, the Czech Republic, Japan,
the People's Republic of China, the Republic of Korea and Thailand (OJ L 72,
11.3.2004, p. 15) following Reports adopted by the Dispute Settlement Body of
the WTO. 
[14]             OJ C 120, 25.4.2012, p. 9.