CELEX: 52014PC0087
Language: en
Date: 2014-02-19
Title: Proposal for a COUNCIL IMPLEMENTING REGULATION Re-imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People's Republic of China and produced by Brosmann Footwear (HK) Ltd, Seasonable Footwear (Zhongshan) Ltd, Lung Pao Footwear (Guangzhou) Ltd, Risen Footwear (HK) Co Ltd and Zhejiang Aokang Shoes Co. Ltd

|
			
		
		
		52014PC0087
		
			Proposal for a COUNCIL IMPLEMENTING REGULATION Re-imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People's Republic of China and produced by Brosmann Footwear (HK) Ltd, Seasonable Footwear (Zhongshan) Ltd, Lung Pao Footwear (Guangzhou) Ltd, Risen Footwear (HK) Co Ltd and Zhejiang Aokang Shoes Co. Ltd /* COM/2014/087 final - 2014/0044 (NLE) */
			
				
		
		
			
			   	EXPLANATORY MEMORANDUM
1.           CONTEXT OF THE PROPOSAL
Grounds for and objectives of the
proposal
This proposal concerns compliance with the
judgments of the Court of Justice of the European Union ('the Court of
Justice') of 2 February 2012 in case C-249/10 P Brosmann et al and of 15
November 2012 in case C-247/10P Zhejiang Aokang Shoes Co. Ltd.
Existing provisions in the area of the
proposal
Council Regulation (EC) 1225/2009 of 30
November 2009 on protection against dumped imports from countries not members of
the European Community[1] ('the basic Regulation') 
Council Regulation (EC) No 1472/2006 of 5
October 2006 imposing a definitive anti-dumping duty and collecting definitely
the provisional duty imposed on imports of certain footwear with upper leather
originating in the People's Republic of China and Vietnam[2]

Council Regulation (EC) No 388/2008 of 29
April 2008 extending the definitive anti-dumping measures imposed by Regulation
(EC) No 1472/2006 on imports of certain footwear with uppers of leather originating
in the People’s Republic of China to imports of the same product consigned from
the Macao SAR, whether declared as originating in the Macao SAR or not[3]
Council Implementing Regulation (EU) No
1294/2009 of 22 December 2009 imposing a definitive anti-dumping duty on
imports of certain footwear with uppers of leather originating in Vietnam and
originating in the People's Republic of China, as extended to imports of
certain footwear with uppers of leather consigned from the Macao SAR, whether
declared as originating in the Macao SAR or not, following an expiry review
pursuant to Article 11(2) of Council Regulation (EC) No 384/96[4] 
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
In its judgments of 2 February 2012 in case
C-249/10 P Brosmann et al and of 15 November 2012 in case C-247/10P Zhejiang
Aokang Shoes Co. Ltd, the Court of Justice of the European Union ('the Court')
annulled Council Regulation (EC) No 1472/2006 of 5 October 2006 imposing a
definitive anti-dumping duty and collecting definitely the provisional duty
imposed on imports of certain footwear with uppers of leather originating in
the People's Republic of China and Vietnam ('the Regulation') . The Regulation
was annulled in so far as it relates to Brosmann Footwear (HK) Ltd, Seasonable
Footwear (Zhongshan) Ltd, Lung Pao Footwear (Guangzhou) Ltd and Risen Footwear (HK)
Co Ltd as well as Zhejiang Aokang Shoes Co. Ltd ('the exporting producers
concerned').
In the respective judgments the Court
stated that the Union institutions should have examined and decided upon the
requests for market economy treatment ('MET') lodged by the exporting producers
concerned.
Article 266 of the Treaty on the
functioning of the European Union provides that the institutions must take the
necessary measures to comply with the Court's judgments. 
In order to comply with that obligation,
the Commission decided to investigate the point affected by the illegality and
to examine whether market economy conditions prevailed for the exporting
producers concerned for the period from 1 April 2004 to 31 March 2005.
The enclosed Commission proposal for a
Council Implementing Regulation imposing a definitive anti-dumping duty on the exporting
producers concerned for the period covered by Council Regulation (EC) No
1472/2006 (7 April 2006 to 7 October 2009), is made after the interested
parties have been given sufficient time to provide comments to the final
disclosure document of 22 November 2013. 
It is proposed that the Council adopts 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 and Article 266 TFEU.
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 Implementing
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. 
2014/0044 (NLE)
Proposal for a
COUNCIL IMPLEMENTING REGULATION
Re-imposing a definitive anti-dumping duty
and collecting definitely the provisional duty imposed on imports of certain
footwear with uppers of leather originating in the People's Republic of China
and produced by Brosmann Footwear (HK) Ltd, Seasonable Footwear (Zhongshan)
Ltd, Lung Pao Footwear (Guangzhou) Ltd, Risen Footwear (HK) Co Ltd and Zhejiang
Aokang Shoes Co. Ltd
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the
Treaty on the Functioning of the European Union (‘TFEU’),
Having regard to Article 266 TFEU,
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[5]
('the basic Regulation'), and in particular Article 9
and 14 (3) thereof,
Having regard to the proposal from the
European Commission ('the Commission') after consulting the Advisory Committee,
Whereas 
A. PROCEDURE
(1)       On 23 March 2006, the
Commission adopted Regulation (EC) No 553/2006 imposing provisional
anti-dumping measures on imports of certain footwear with uppers of leather (‘footwear’)
originating in the People's Republic of China ('PRC') and Vietnam (‘the
provisional Regulation’)[6].
(2)       By Council Regulation (EC)
No 1472/2006[7]
the Council imposed definitive anti-dumping duties ranging from 9.7 % to 16.5 %
on imports of certain footwear with uppers of leather, originating in Vietnam
and in the PRC for two years ('Council Regulation (EC) No 1472/2006' or ‘the
contested Regulation’).
(3)       By Regulation (EC) No
388/2008[8]
the Council extended the definitive anti-dumping measures on imports of certain
footwear with upper leather originating in the PRC to imports consigned from
the Macao Special Administrative Region ('SAR'), whether declared as
originating in the Macao SAR or not.
(4)       Further to an expiry
review initiated on 3 October 2008[9], 
the Council further extended the anti-dumping measures for 15 months by Council
Implementing Regulation (EU) No 1294/2009[10],
i.e. until 31 March 2011, when the measures expired (‘Council Regulation (EC)
No. 1294/2009’).  
(5)       Brosmann
Footwear (HK) Ltd, Seasonable Footwear (Zhongshan) Ltd, Lung Pao Footwear
(Guangzhou) Ltd and Risen Footwear (HK) Co Ltd as well as Zhejiang Aokang Shoes
Co. Ltd ('the exporting producers concerned') challenged the contested
Regulation in the Court of First Instance (now: the General Court). By
judgements of 4 March 2010 in Case T-401/06 Brosmann Footwear (HK) and Others v
Council [2010] ECR II-671 and of 4 March 2010 in Joined Cases T-407/06 and T-408/06
Zhejiang Aokang Shoes and Wenzhou Taima Shoes v Council [2010] ECR II-747 (‘the
judgments of the General Court’), the General Court rejected those challenges.
(6)       The exporting producers concerned
appealed those judgements. In its judgments of 2 February 2012 in case C-249/10
P Brosmann et al and of 15 November 2012 in case C-247/10P Zhejiang Aokang
Shoes Co. Ltd (‘the judgments’), the Court of Justice of the European Union
('the Court') quashed the judgments of the General Court. It held that the
General Court erred in law in so far as it held that the Commission was not
required to examine requests for market economy treatment (‘MET’) under Article
2(7)(b) and (c) of the basic Regulation from non-sampled traders (paragraph 36
of the judgement in Case C-249/10 P and paragraph 29 and 32 of the judgement in
Case C-247/10 P).
(7)       The Court then gave
judgement itself in the matter. It held: “[…] the Commission ought to have
examined the substantiated claims submitted to it by the appellants pursuant to
Article 2(7)(b) and (c) of the basic regulation for the purpose of claiming MET
in the context of the anti-dumping proceeding [which is] the subject of the
contested regulation. It must next be found that it cannot be ruled out that
such an examination would have led to a definitive anti-dumping duty being
imposed on the appellants other than the 16.5% duty applicable to them pursuant
to Article 1(3) of the contested regulation. It is apparent from that provision
that a definitive anti-dumping duty of 9.7% was imposed on the only Chinese
trader in the sample which obtained MET. As is apparent from paragraph 38
above, had the Commission found that the market economy conditions prevailed
also for the appellants, they ought, when the calculation of an individual
dumping margin was not possible, also to have benefited from the same rate”
(paragraph 42 of the judgement in Case C-249/10 P and paragraph 36 of the
judgement in Case C-247/10 P).
(8)       As a consequence, it annulled
the contested Regulation, in so far as it relates to the exporting producers
concerned. 
(9)       Article
266 of the Treaty on the Functioning of the European Union (TFEU) provides that
the Institutions must take the necessary measures to comply with the Court's
judgments. In case of annulment of an act adopted by the Institutions in the
context of an administrative procedure, such as anti-dumping, compliance with
the 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.[11]
(10)     According
to the case-law of the Court, the procedure for replacing the annulled act may
be resumed at the very point at which the illegality occurred.[12] 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 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[13], except if the illegality occurred at the stage of initiation.
(11)      In
the present case, the illegality occurred after initiation. Hence, the
Commission decided to resume the present anti-dumping proceeding that was still
open at the very point at which the illegality occurred and to examine whether
market economy conditions prevailed for the exporting producers concerned for
the period from 1 April 2004 to 31 March 2005.
(12)     The Institutions therefore
have examined those requests for MET, which relate to the period from 1 April
2004 to 31 March 2005 which was the investigating period (‘the IP’).  
(13)     The exporting producers
concerned were invited to cooperate. They were given the opportunity to make
their views known in writing and to request a hearing within the time-limit set
out in the respective letters.
(14)     Since the anti-dumping
proceeding leading to the adoption of the contested Regulation was carried out
in 2005-2006, the Commission was not sure that it had the correct contact
details of potentially interested parties. Therefore, the Commission invited
all potentially interested parties to indicate whether they wished to receive
disclosure pursuant to Article 20 of the basic Regulation by means of a notice published
in the Official Journal[14].
B.        REPLACEMENT OF THE CONTESTED
REGULATION BY A NEW ACT IN ORDER TO COMPLY WITH THE JUDGMENTS
(15)     The Community Institutions
have the possibility to remedy the aspects of the contested Regulation which
led to its annulment, while leaving unchanged the parts of the assessment which
are not affected by the Judgment[15].
(16)     The present Regulation
seeks to correct the aspects of the contested Regulation found to be
inconsistent with the basic Regulation, and which thus led to the annulment in
so far as the exporting producers are concerned.
(17)     All other findings made in
the contested Regulation, which were not annuled by the General Court, remain valid
and are herewith incorporated into the present Regulation.
(18)     Therefore, the following
recitals are limited to the new assessment necessary in order to comply with
the judgments.
1.           Examination of the MET
claims
(19)     The
reason for the annulment of the contested Regulation in respect of the exporting
producers concerned was that
the Institutions ought to have examined the
substantiated MET claims submitted to it by the exporting producers concerned
pursuant to Article 2(7)(b) and (c) of the basic Regulation.
(20)     The
Institutions have therefore analyzed the MET claims. The assessment showed that
the information provided was not sufficient to demonstrate that the exporting
producers concerned operated under market economy conditions (see for a
detailed explanation below recitals (23) and following).
(21)     It
is necessary to point out that the burden of proof lies with the producer
wishing to claim MET under Article 2(7)(b) of the basic Regulation. To that
end, the first subparagraph of Article 2(7)(c) provides that the claim
submitted by such a producer must contain sufficient evidence, as laid down in
that provision, that the producer operates under market economy conditions.
Accordingly, there is no obligation on the EU institutions to prove that the
producer does not satisfy the conditions laid down for the recognition of such
status. On the contrary, it is for the EU institutions to assess whether the
evidence supplied by the producer concerned is sufficient to show that the
criteria laid down in the first subparagraph of Article 2(7)(c) of the basic
regulation are fulfilled in order to grant it MET and it is for the EU
judicature to examine whether that assessment is vitiated by a manifest error (paragraph 32 of the judgement in Case C-249/10 P and paragraph 24 of
the judgement in Case C-247/10 P). 
(22)     The
Commission, despite the fact that the burden of proof is on the producers
concerned, nevertheless gave the exporting producers
concerned the possibility to provide additional information. None of the exporters concerned provided the additional information
requested, not even after being reminded and warned about the consequences of
not providing that information. 
(23)     The
investigation showed that one exporting producer, located in Hong Kong (company 1), was related to another exporting producer concerned
(company 2) during the original IP. Their MET requests were therefore assessed
together. Company 2 failed to address the deficiencies identified by the
Commission; on the basis of the information at its disposal, the Commission
concluded that company 1 and company 2 failed to demonstrate that they operated
under market economy conditions as laid down in Article 2(7)(c) of the basic
Regulation, for the following reasons.
(24)     As regards the criterion 1
(Business decisions), the official document ”Certificate of Approval” of the
company refered to a quantitative limitation of the production of the product
concerned and the obligation to sell for exports only. The Articles of
Association mentioned in several chapters the obligation to report to the local
authorities, in particular in relation to the sales price determination and
foreign exchange operations. The MET form stated that the company had long term
loans, unsecured, bearing no interests and having no fixed terms of repayment.
The criteria 2 (Accounting) and 3 (Assets and 'carry over') were not fulfilled since
external audit reports and capital verification reports were not provided.  
(25)     Another also Hong Kong based exporting producer concerned (company 3) was found to be related to
producers of the product concerned in the PRC. Company 3 was therefore asked to
submit MET claim forms for its related producers in the PRC. No information was
submitted. It was concluded that Company 3 failed to provide sufficient
evidence demonstrating that its related producers operated under market economy
conditions as required under Article 2(7)(c) of the basic Regulation.
Therefore, company 3 could not be granted MET.
(26)     The MET claim submitted by
company 4 contained many documents and annexes only in Chinese, without any
translation into English. In addition, it failed to provide information
allowing for assessment of its compliance with criteria 1 (Business decisions),
2 (Accounting) and 3 (Assets and 'carry over') as laid down in Article 2(7)(c)
of the basic Regulation.
(27)     As regards criterion 1
(Business decision), it failed to provide the Articles of Association and the required
copies of contracts. For criteria 2 and 3, translations of the audited accounts
into English were not provided. It also failed to explain as requested why the
company had no sales on the domestic market during the IP. The capital
verification reports were not provided. Moreover, supporting documents showing
the different steps in the field of business decision and costs, like
negotiations with big suppliers and examples of labour contracts, were not
provided as requested. 
(28)     The MET claim submitted by
Company 5 failed to demonstrate that the company operated under market economy
conditions, as it did not provide the information necessary to assess its
compliance with criteria 1 ( Business decisions), 2 (Accounting) and 3 (Assets
and ‘carry over’).
(29)     More specifically, as
regards criterion 1,  Company 5 failed to submit MET claims for five other related
companies belonging to the group and which appear to have sold the product
concerned. As regards criterion 2, Company 5 failed to provide audited accounts
for the year 2003 and the audit reports for 2002 and 2004 contain comments
casting doubts on the reliability of the relevant financial accounts. Finally,
Company 5 failed to provide the Capital Verification Report and information as
to when and under which conditions the production equipment had been obtained. 
(30)     The first subparagraph of
Article 2(7) (c) provides that the claim submitted by a producer claiming MET must
contain sufficient evidence, as laid down in that provision, that the producer
operates under market economy conditions. The MET claims did not contain such
evidence. 
(31)     The Commission furthermore,
without being legally obliged to do so, sent deficiency letters to the
exporting producers concerned, but to no avail. 
(32)     On that basis, the Commission
informed the exporting producers concerned about its intention to deny MET and
gave them an opportunity to comment.
(33)     At the oral hearing and in
their written observations, the exporting producers concerned have not
contested the assessment of their MET claims by the Commission.
(34)     It is concluded that none
of the exporting producers concerned fulfilled all the conditions set out in
Article 2(7)(c) of the basic Regulation and MET is, as a result, denied for all
of them. 
(35)     It is recalled that the Court
held that if the Institutions found that the market economy conditions
prevailed for the exporting producers concerned, they ought to have benefited
from the same rate as the company in the sample that was granted MET. 
(36)     However, since MET is
denied for all exporting producers concerned as a result of the findings in the
resumed investigation, none of the exporting producers concerned should benefit
from the individual duty rate of the sampled company that was granted MET. 
(37)     The
residual anti-dumping duty applicable to the PRC should be therefore imposed
for the exporting producers concerned for the period of application of Council
Regulation (EC) No 1472/2006. The period of application of that Regulation was
initially from 7 October 2006 until 7 October 2008. Following the initiation of
an expiry review, it was prolonged on30 December 2009 until 31 March 2011. The
illegality identified in the judgments is that the Institutions failed to
establish whether the products produced by the exporting producers concerned should
be subject to the residual duty or to the duty of the company in the sample
that was granted MET.
(38)     On
the basis of the illegality identified by the Court, there is no legal ground
for completely exempting the products produced by the exporting producers
concerned from paying any anti-dumping duty. A new act remedying the illegality
identified by the Court therefore only needs to reassess the applicable anti-dumping
duty rate, and not the measures themselves.
(39)     Should the Institutions
refrain from re-imposing the duties at the appropriate level, that would
trigger unjust enrichement, as imports of the product produced by the exporting
producers concerned took place under the assumption that the appropriate duty
would be levied. The duty was therefore factored in
when deciding on the sales price for the products concerned.
(40)      Since
it is concluded that the residual duty should be re-imposed in respect of the
exporting producers concerned at the same rate as originally imposed by Council
Regulation (EC) No 1472/2006, no changes are required to Council Regulation
(EC) No 388/2008 and Council Implementing Regulation (EU) No 1294/2009. Those
regulations remain valid for the exporting producers concerned. 
2.           Comments of interested
parties
(41)     The exporting producers
concerned argue, first, that it was exceedingly difficult, if not impossible to
provide the additional information requested by the Commission, covering the
period 1 April 2004 to 31 March 2005. 
(42)     They argued, second, that
the Court not only annulled the contested Regulation because of the failure of
the Institutions to examine their requests for MET at all, but also because the
Institutions failed to make the MET determination of non-sampled and sampled
companies within three months of initiation of the investigation, as stipulated
in Article 2(7)(b) of the basic Regulation. The parties claimed that that
defect could not be remedied any more. They consider that in any event, as a
result of the violation of the three months deadline, also all sampled
companies that had requested MET should be treated as if they had been granted
MET, and that the Institutions therefore were under an obligation to
recalculate the average dumping margin for companies having obtained MET.
(43)     They argue, third, that the
anti-dumping proceeding had been concluded at the expiry of the anti-dumping
measures on 31 March 2011, and that it therefore was not possible for the
Institutions to resume that proceeding from the point where the illegality occurred.
Rather, they consider that the Institutions are under the obligation to start a
new investigation covering not only the MET claims, but also the existence of
dumping, injury and Union interest.
(44)     They argue, fourth, that
the proposed way of complying with the judgments would lead to a retroactive
imposition of the anti-dumping duties. That, in turn, would be against the
principle of legal certainty, the right to effective judicial remedy and Article
10(1) of the basic Regulation. 
(45)     They claim, fifth, that the
Institutions cannot limit themselves to the assessment of the requests for MET
presented by the exporting producers concerned. Rather, they consider that the
Institutions need to assess all requests for MET presented by non-sampled
companies. Not doing so would violate the principle of non-discrimination.
(46)     Finally, the parties
contest the argument that the absence of re-imposition would result in unjust
enrichment. It was argued that since the annulled anti-dumping duties never
existed for the exporters concerned, not imposing them would not lead to an
unjust enrichment of the affected operators. 
3.           Analysis of comments 
(47)     In response to the first
claim, the Institutions recall that according to the case-law, the burden of
proof lies with the producer wishing to claim MET under Article 2(7)(b) of the
basic Regulation. To that end, the first subparagraph of Article 2(7)(c)
provides that the claim submitted by such a producer must contain sufficient
evidence, as laid down in that provision, that the producer operates under
market economy conditions. Accordingly, as held by the Court in the judgments (see
above recital (21), there is no obligation on the Institutions to prove that
the producer does not satisfy the conditions laid down for the recognition of
such status. On the contrary, it is for the Institutions to assess whether the
evidence supplied by the producer concerned is sufficient to show that the
criteria laid down in the first subparagraph of Article 2(7)(c) of the basic
regulation are fulfilled in order to grant it MET.
(48)     Hence, the Institutions
could simply have rejected the request for MET on the basis that the requests
did not contain sufficient evidence that the producer operates under market
economy conditions. The fact that the Institutions decided to give the
exporting producers concerned the possibility to complement their requests can
therefore not be criticised for coming allegedly late.
(49)     As regards the second claim that the MET determination had
to be completed within three months of the initiation, it is recalled that
according to the case law, the second subparagraph of Article 2(7)(c) of the
basic Regulation does not contain any indication as regards the consequences of
the Commission's failure to comply with the three-month period. The General
Court therefore takes the view that an MET decision at a later stage does not
affect the validity of the Regulation imposing definitive measures as long as applicants
have not proved that, if the Commission had not exceeded the three-month
period, the Council might have adopted a different regulation more favourable
to their interests than the contested regulation.[16] The Court has furthermore recognized that the Institutions may
modify the MET assessment until the adoption of final measures.[17]
(50)     That case-law has not been
overturned by the judgments. In the judgments, the Court relies on the
obligation for the Commission to carry out the assessment in three months in
order to show that the obligation of that assessment exists independently of
whether the Commission applies sampling or not. The Court does not pronounce
itself on the question what legal consequence it has if the Commission
concludes the MET assessment at a later stage of the investigation. The Court
only rules that the Institutions could not completely ignore MET claims, but
had to assess them the latest when imposing definitive measures. 
(51)     In
the present case, the exporting producers concerned have not shown that, had
the Commission carried out the MET assessment within three months after the
initiation of the anti-dumping procedure in 2005, the Council might have
adopted a different regulation more favourable to their interests than the
contested regulation. The second claim is therefore rejected. 
(52)     As
regards the third claim, namely that the measures in question expired on 31
March 2011, the Institutions fail to see why the expiry of the measure would be
of any relevance for the possibility for the Council to adopt a new act to
replace the annulled act. 
(53)     As
explained above in recitals (9) to (11), the anti-dumping proceedings are, as a
result of the annulment of the act concluding the proceedings, still open. The
Institutions are under an obligation to close those proceedings, as the basic Regulation
provides that an investigation has to be closed by an act of the Institutions.  . 
(54)     As
for the fourth argument, Article 10 (1) of the basic Regulation, which takes
over the text of Article 10 (1) of the WTO Antidumping Agreement (‘ADA’),
stipulates that provisional measures and definitive anti-dumping duties shall
only be applied to products which enter free circulation after the time when
the decision taken pursuant to Article 7(1) or 9(4) of the basic Regulation, as
the case may be, enters into force. In the present case, the anti-dumping
duties in question are only applied to products which entered into free
circulation after the provisional and the contested (definitive) Regulation taken
pursuant to 7 (1)  and 9 (4) of the basic Regulation respectively had entered
into force.
(55)     In additon, it is also
considered that the imposition of the anti-dumping duties does not result in
violation of the general principles of Union law, such as protection of legal
certainty, of legitimate expectations and the right to effective judicial
remedy for the following reasons. 
(56)     With regards to the
protection of legal certainty and of legitimate expectations, it is first of
all observed that according to the case-law, traders cannot claim the
protection of legal certainty and legitimate expectations where they were
alerted of an imminent change in the Union's commercial policy.[18] In the present case,
traders were alerted by the publication of the notice of initiation and of the
provisional Regulation in the Official Journal, which are both still part of
the legal order of the Union, of the risk that the products produced by the
exporting producers concerned may become subject to an anti-dumping duty. The
exporting producers concerned could therefore not rely on the general
principles of the Union's law of protection of legal certainty and legitimate
expectations.
(57)     Second, it is important to
underline that the imposition of definitive measures is not retroactive. The
case-law of the Court distinguishes in that regard between the application of a
new role to a situation that has become definitive (also referred to as an
existing or definitively established legal situation)[19], and a situation that
started before the entry into force of the new rule, but which is not yet
definitive (also referred to as a temporary situation)[20].
(58)     In the present case, the
situation of the imports of the products concerned that occurred during the
period of application of Council Regulation (EC) No 1472/2006 has not yet
become definitive, because, as a result of the annulment of the contested
Regulation, the anti-dumping duty applicable to them has not yet been
definitively established. At the same time, traders were warned that such a
duty may be imposed by the publication of the notice of initiation and the
provisional Regulation. It is standing case-law of the Union Courts that
operators cannot acquire legitimate expectations until the Institutions have
adopted an act closing the administrative procedure, which has become
definitive.[21]
(59)     Therefore the imposition of
the anti-dumping duties is not retroactive.
(60)     Furthermore, even if the
imposition of the duties was retroactive, quod non, the substantive rules of Union
law may apply to the situations existing before their entry into force in so
far as it clearly follows from their terms, objectives or general scheme that
such effect must be given to the them[22]. In particular, in case T-180/01 Euroagri
v Commission[23] it was held that: [A]lthough in general the principle of legal certainty
precludes a Community measure from taking effect from a point in time before
its publication, it may exceptionally be otherwise where the purpose to be
achieved so demands and where the legitimate expectations of those concerned
are duly respected [24].

(61)     In
the present case the purpose is to comply with the
obligation of the Institutions pursuant to Article 266 TFEU. Since the Court
only found an illegality with regards to the determination of the applicable
duty rate, and not with regards to the imposition of the measures themselves
(that is, with regards to the finding of dumping, injury and Union interest), the
exporting producers concerned could not have legitimately expected that no definitive
anti-dumping measures would be imposed. Consequently, that imposition, even if
it was retroactive, quod non, cannot be construed as breaching legitimate
expectations.
(62)     The
right to effective judicial remedy is not violated either. The exporting
producers concerned can contest the legality of the present Regulation in the
Union Courts.
(63)     As
regards the fifth argument, it has to be noted that the exporting producers
concerned are in a different legal position than the other non-sampled
companies which have filed a request for MET but which have not challenged the
contested Regulation in the Court. With regards to the latter, the contested
Regulation has become definitive.
(64)     Finally,
if the Institutions were not to propose any measures, this would lead to unjust
enrichment, for the reasons explained above in recital (39). The argument that
the annulled duties never existed because the judgement removes the contested
Regulation with retroactive effect from the legal order of the Union overlooks
the fact that traders were warned of the risk of an imposition of duties by the
notice of initiation and the provisional Regulation, and that pricing decisions
for the products produced by the exporting producers concerned were taken at a
point in time when the definitive duty was in place. In the case-law of the
Court of Justice, it is recognized that the repayment of charges which have
been unduly levied may be refused where doing so would entail unjust enrichment
of the recipients.[25] The argument of the parties is therefore dismissed.
4.           Comments of interested
parties after disclosure 
(65)     After disclosure, some
interested parties reiterated that the Court had annulled the Regulation in its
entirety as regards the exporting producers concerned. They took the view that
the Institutions were obliged, on the basis of Article 266 TFEU, to repay anti-dumping
duties collected on the basis of the contested Regulation, insofar as they
concerned products produced by the exporting producers concerned, and that the
Institutions had the possibility, but not the obligation, to adopt a new act,
provided that the new act does not violate Union law and is not affected by the
same irregularities as those identified by the Court in its judgement.
(66)     With regard to the
repayment of the anti-dumping duties, the Commission services have instructed national
customs authorities by note of 31 Mai 2012 to honour such requests for
repayment, but to inform importers at the same time that it cannot be ruled out
that the Commission may propose to the Council to re-impose duties on the
relevant importations. That information had the express purpose of avoiding the
creation of legitimate expectations.
(67)     With regard to the adoption
of a new act replacing the annulled act, it is recalled that in the context of
administrative procedures such as anti-dumping procedures, the Institutions are
under an obligation to close an open investigation by a definitive act (see
above recitals (9), (10) and (53)). The adoption of a definitive act closing
the open procedure is therefore not a possibility, but an obligation on the
Institutions. It goes without saying that any new act has to comply with Union
law and remedy the illegality identified by the Court. With regard to
violations of Union law, the interested parties argued, first, that there is no
legal basis for resuming the investigation at the point where the illegality
occurred. They point to the fact that the anti-dumping measures on imports of
certain footwear with uppers of leather (‘footwear’) from the exporters
concerned had expired in March 2011. In their view, it is contrary to both Union and WTO law to “resurrect a dead anti-dumping duty”.
(68)     The interested parties
overlook the fact that as a consequence of the annulment, the anti-dumping
procedure which had led to the adoption of the contested Regulation is still
open with regard to the exporting producers concerned (see above recitals (9)
to (11) and (52) to (53). The fact that the measures imposed by Council
Regulation (EC) No. 1294/2009 had expired in 2011, that is before the Court
rendered the judgments, is without any importance in that regard. Otherwise,
the measures the Institutions are required to take in order to comply with a
Court judgement would depend on the duration of the proceedings before the
Union Courts. 
(69)     Second, they argue that the
exporting producers concerned had challenged in the Court not only the
rejection of the MET claims, but also the finding of dumping. Furthermore, they
read the judgements as saying that the contested Regulation was annulled not
because the Institutions failed to assess the MET claim prior to the adoption
of the contested Regulation, but because the Commission failed to do so within
three months. In their view, it follows from that that the Institutions had
also not validly assessed the MET claims of the sampled companies, and
therefore had not validly found dumping. One interested party goes even further
and suggests that the Institutions should have assessed, when complying with
the judgment, also all MET claims made by other, non-sampled companies.
(70)     That interpretation of the
judgement has been rebutted above in recitals (49) to (51) . The reference to
the three-month deadline in the judgements is a textual argument to show that
all MET claims have to be assessed, even in case of sampling. Nowhere in the
judgments does the Court overturn the earlier case-law on the lack of sanction
for the violation of the three-month deadline. The fact that the Court
exercised judicial economy by not examining six of the nine pleas against the
judgements of the General Court means that the exporting producers concerned
may raise those pleas again in case they decide to bring new proceedings. The
Commission and the Council can rely, when complying with the judgments, on the
findings of the General Court rejecting those arguments, as they have not been
invalidated by the Court. Finally, there is no need to examine the MET claims
of other non-sampled companies at this point in time, as the contested
Regulation has become definitive vis-à-vis those other non-sampled companies.
(71)     Third, interested parties
argued that the Institutions deviated from their normal practice of complying
with judgments annulling definitive anti-dumping measures, including what the
Institutions had done following the judgment of the Court in Industrie des
Poudres Spheriques (‘IPS’)[26].
They point out in particular that the Commission published notices of
re-opening of the investigation in the Official Journal and proposed new
measures to the Council to be adopted for the future.
(72)     The facts of the present
case are, however, different from previous annulments. As explained above in
recital (38) and (61), the illegality identified by the Court does not concern
the findings on dumping, injury, and Union interest, and therefore the
principle of the imposition of the duty, but only the precise duty rate. The
previous annulments relied on by the interested parties, on the contrary,
concerned the findings on dumping, injury and Union interest. The institutions
therefore considered it more appropriate to adopt new measures for the future.
(73)     One interested party also
relies on the annulments in Case T-221/05 Huvis v Council and in Case T-249/06
Interpipe Nikopolsky v Council. Those annulments were partial; they left part
of the duty in place. The reason was that the General Court could decide itself
on the appropriate level of the duty, as it held that an adjustment had to be
done in a certain way. In the present case, on the contrary, the Court found
that it could not decide on the place of the Commission and the Council whether
the exporting producers concerned should be granted MET. That decision could
only be taken on the basis of an assessment of their claims, which falls within
the competence of the Commission and the Council. The fact that the Court did
not rule itself on the question as to whether or not the exporting producers
concerned should be granted MET also shows that the violation of the three
month deadline does not automatically lead to granting of MET, as certain
interested parties claim. 
(74)     Fourth, interested parties
also reiterated that the imposition of anti-dumping duties on footwear imports
from the exporting concerned would be retroactive and therefore violate Article
10 of the basic Regulation and Article 10 of ADA. They argued that the allegedly
retroactive imposition would also violate legitimate expectations. Those
legitimate expectations would have been created by the judgements respectively
by the fact that the Commission deviated from its previous practice by
publishing a notice on the resumption of the procedure in the Official Journal
not immediately after the annulments, but only more than a year after the first
judgement had been handed down. Furthermore, they argue that the general principle
of the Union’s law of the protection of legal certainty precludes a Union act
from taking effect as from a date prior its publication. 
(75)     It has been explained in
recitals (54) to (59) that the imposition of anti-dumping duties in the present
Regulation is not retroactive.
(76)     The judgments cannot have
created legitimate expectations, as they explain that the Commission and the
Council need to establish at which rate the duty shall be set (see above
recital (7)).
(77)     With regards to the notice,
the Institutions observe first of all, that there is no obligation to publish
such a notice in the first place, as the Institutions resume the procedure from
the point at which the illegality occurred, and the Notice of initiation remains
part of the Union legal order. Secondly, the alleged legitimate expectations
would be based on a period of silence. However, according to the case-law, the
absence of an action of the Institutions cannot create legitimate expectations[27]. In any event, the
allegedly late publication in the Official Journal did not constitute a notice
on the resumption of the procedure, but a notice inviting interesting parties
to come forward. It has been published for the reasons set out above in recital
(14), and cannot create legitimate expectations either.
(78)     With regards to the general
principle of the Union’s law of the protection of legal certainty, it has been
set out above in recital (60) that a Union measure may take effect from a point
in time before its publication where the purpose to be achieved so demands and
where the legitimate expectations of those concerned are duly respected, which
is the case in the present case.
(79)     Fifth, interested parties also
reiterated their argument on the absence of ‘unjust enrichment of the
importers’, which has been rebutted above in recital (64). 
(80)     Sixth, interested parties
also argued that the proposed implementation would violate the Union interest
principle as laid down in Article 21 of the basic Regulation since the
imposition of duties would be an unreasonable burden on importers in the Union without providing any benefit for the Union industry as a whole. That argument
overlooks that the present Regulation concerns imports of the product concerned
that have taken place during the period of application of the contested
Regulation, and not future imports. With regard to those imports during the
period of application of the contested Regulation, the Institutions have
established the Union interest in recitals (241) to (286) of the contested
Regulation. No illegality has been identified by the Union Courts with regard
to those recitals.
(81)     Seventh, interested parties
also argued that not all interested parties had been able to defend their
rights, but only those that could prove that they had been registered as such
in the original investigation. In their view, the proposed duties will have an
impact also on companies that were not registered as interested parties in the
original investigation. In addition, they argued that the Institutions did not
publish any notice immediately upon the Court judgment and that therefore they
had been no information concerning the intended implementation in time.
(82)     As the Institutions have
resumed the procedure at the point in time where the illegality occurred, it is
normal that the Institutions have addressed the Notice to those parties that
are interested parties in that procedure. In addition, nothing prevented other
interested parties to come forward, and some have indeed done so and where
considered as interested parties from the point in time onwards in which they
came forward. The fact that the Notice was published only more than a year
after the first of the two judgments was rendered is without impact on the
legality of the present Regulation, as all interested parties were informed in
time to make their views known. 
(83)     Eighth, the exporting
producers concerned have argued that their rights of defence were violated due
to the fact that the Commission has assessed their MET claims only in
2012/2013, and not in 2005/2006. They claim that had that assessment taken
place in 2005/2006, they could have provided certain information which they
cannot longer provide, because documents have been destroyed and/or because
people have moved to other jobs.
(84)     In that regard, it is
recalled that there is no obligation, for the Commission, to request the
exporting producer to complement the MET claim. The Commission and the Council
may base their assessment on the information submitted by the exporting
producer (see above recitals (21), (22) and (31)). Furthermore, the exporting
producers concerned have not contested the assessment of their MET claims by
the Commission, and they have not identified which documents or which people
they have no longer been able to rely upon. The allegation is therefore so
abstract that the Institutions cannot take into account those difficulties when
carrying out the assessment of the MET claims. As that argument is based on
speculation and not supported by precise indications as to which documents and
which people are no longer available and as to what the relevance of those
documents and people for the assessment of the MET claim is, that argument has
to be rebutted.
(85)     The interested parties
argued that the proposed implementation would violate Article II (1)(b) of GATT
1994 since the Institutions proposed imposing retroactively an anti-dumping
duty on footwear imports from the exporters concerned for which the
anti-dumping measures had already expired. In addition, the interested parties
argued that, since there are no legally applicable anti-dumping measures in
place on the imports concerned, the proposed implementation is in violation of
Articles 10, 5.1 and 5.6 of ADA. Under these Articles, the Institutions may
re-impose definitive anti-dumping duties following the initiation of a new
investigation and a new decision in the sense of ADA Article 9.1.
(86)     Those arguments rest on the
view that the Institutions were prevented from resuming the procedure at the
point at which the illegality occurred and that the imposition of duties would
be retroactive. For the reasons set out above, that view is wrong. It is
therefore not necessary to address in more detail the arguments put forward on
an alleged violation of WTO rules. 
5.           Article 221 of the
Community Customs Code
(87)     Article 221 of Council
Regulation (EEC) 2913/1992 of 12 October 1992 establishing the Community
Customs Code[28]
stipulates that communication of the amount of duty shall not take place after
the expiry of a period of three years from the date on which the customs debt
was incurred. The application may render impossible the implementation of the
judgments in all cases where national customs authorities and/or judges have
accepted the illegality of national customs communications that were based on
the contested Regulation and concerned products produced by the exporting
producers concerned. In such situations, the national customs authorities must
be in a position to communicate the amount of duty later than three years from
the date on which the customs debt was incurred.
(88)     Contrary to the view held
by interested parties, Article 221 of the Community Customs Code is not
automatically applicable to the perception of anti-dumping duties. Neither the
Community Customs Code itself nor the basic Regulation contains a provision
that would render applicable the Community Customs Code to the perception of
anti-dumping duties. Pursuant to Article 14(1) of the basic Regulation, it is
the Regulation imposing the duty which has to specify form, rate and other
criteria of the perception of the duties.
(89)     Therefore, the present
Regulation does not provide for the applicability of Article 221 of the
Community Customs Code, but sets out independent rules for time bar. Those
independent rules are justified as follows: for the reasons set out above in
recitals (54) to (59) and (66), the proposed re-imposition of duties does not
have retroactive effect, and in any event, for the reasons set out above in
recitals (60) and (61) and (76) to (80), does not run counter the general
principles of Union law of the protection of legal certainty and legitimate
expectations.
(90)     In addition, an initial
communication of the amount of duty did take place within the three-year period.
Following the judgments, it has however become necessary to re-assess whether
the customs debt should be reduced as a consequence of the assessment of the
MET claims of the exporting producers concerned. As there was, pending that
assessment, no legal ground for keeping the customs duty paid, the Commission
had instructed national customs authorities to honour such requests for
repayment, but to inform importers at the same time that it cannot be ruled out
that the Commission may propose to the Council to re-impose duties on the
relevant importations (see above recital (66)).
(91)     For those reasons,  independent
rules on time bar, different from Article 221 of the Community Customs Code, are
justified.
(92)     Nevertheless,
in order to ensure legal certainty and to reflect the particular circumstances
of the present case, it is considered appropriate to provide that communication
to the debtor of the amount of duty shall take place no later than two years
after the entry into force of the present Regulation.
(93)     Interested parties argued
that the Institutions cannot derogate from Article 221 of the Community Customs
Code on the basis of Article 14(3) of the basic Regulation. They consider that the
basic Regulation only confers competence to impose anti-dumping duties, but not
to edict rules on the collection and recovery of anti-dumping duties. Those
latter rules would have to be set exclusively by the Community Customs Code. They
rely on the ruling of the Court in Case C-201/04 Molenbergnatie. Interested
parties also argued that an implementing act such as Council Regulations imposing
anti-dumping measures cannot derogate from legislative acts such as the
Community Customs Code. Finally, parties argued that derogating from Article
221 of the CCC would undermine legal certainty since it is settled case law
that upon expiry of the limitation period the legally owed duty is no longer
recoverable.
(94)     As set out above in recital
(88), the Community Customs Code is not automatically applicable to the
perception of anti-dumping duties, but only where and to the extent that the
Regulation imposing the duties provides for its applicability. The argument has
to be rejected as unfounded for that reason. In any event, Article 14 of the
basic Regulation, which is a legislative act that constitutes a lex
specialis to the Community Customs Code, confers wide-ranging powers to the
Council to deviate from the Community Customs Code. Pursuant to Article 14 (1)
of the basic Regulation Member States shall collect the duties in the form, at
the rate specified and according to the other criteria laid down in the
Regulation imposing such duties. Contrary to the view expressed by interested
parties, Article 14 of the basic Regulation covers also the collection of
duties, and not only the imposition. Article 14 (3) of the basic Regulation provides
that the Council may adopt “special provisions”; the example given of a common
definition of the concept of origin illustrates that such special provisions
may derogate, inter alia, from the Community Customs Code. In Molenbergnatie,
Article 221 of the Community Customs Code was applicable precisely because the
Regulation imposing anti-dumping duties did not derogate from it. Furthermore,
it is obvious that any derogation has to be justified by the Institutions, and
needs to preserve the spirit underlying Article 221 of the Community Customs
Code, namely legal certainty, as is the case in the present Regulation. The
arguments are therefore rebutted.
(95)     One interested party argued
that the two-year deadline for the communication to the debtor of the duty
amount, mentioned in recital (92) above, should be applied in the context of
Article 221(3) 2nd sentence of the Community Customs Code, which
foresees an extension of the three year period to collect the duty by the
Customs authorities in case of criminal behaviour. Furthermore, the interested
party argued that the same extension should be applied to the three year
deadline foreseen for the importers to request duty refunds under Article 236 of
the Customs Code. The Institutions see no ground for acceding to those
requests. The exception to the three-year rule provided for by Article 221(3) 2nd
sentence of the Community Customs Code is not broad enough to allow for the
effective compliance with the judgments. There is no justification for
extending the deadline for importers that have imported the product concerned
from the exporting producers concerned and failed to contest their customs debt
in time.
6.           Conclusion
(96)     Account taken of the comments
made and the analysis thereof it was concluded that the residual anti-dumping
duty applicable to the PRC in respect of the exporting producers concerned for
the period of application of the contested Regulation should be re-imposed. 
(97)     As explained in recital (40)
no changes are required to Council Regulation (EC) No 388/2008 and Council
Implementing Regulation (EU) No 1294/2009 which remain valid for the exporting
producers concerned.
C.        DISCLOSURE
(98)     The exporting producers
concerned and all parties that came forward were informed of the essential
facts and considerations on the basis of which it was intended to recommend the
imposition of the definitive anti-dumping duty on the exporting producers
concerned. They were granted a period within which to make representations
subsequent to disclosure and a number of interested parties has made use of
this possibility. A hearing with the hearing officer has also taken place in
that context. 
HAS ADOPTED THIS REGULATION:
Article 1
1.           A definitive anti-dumping
duty is hereby imposed on imports of footwear with uppers of leather or
composition leather, excluding sports footwear, footwear involving special
technology, slippers and other indoor footwear and footwear with a protective
toecap, originating in the People's Republic of China and produced by Brosmann
Footwear (HK) Ltd, Seasonable Footwear (Zhongshan) Ltd, Lung Pao Footwear
(Guangzhou) Ltd, Risen Footwear (HK) Co Ltd and Zhejiang Aokang Shoes Co. Ltd (TARIC
additional code B999) and falling within CN codes: 6403 20 00, ex 6403 30 00[29], ex 6403 51 11, ex
6403 51 15, ex 6403 51 19, ex 6403 51 91, ex 6403 51 95, ex 6403 51 99, ex 6403
59 11, ex 6403 59 31, ex 6403 59 35, ex 6403 59 39, ex 6403 59 91, ex 6403 59
95, ex 6403 59 99, ex 6403 91 11, ex 6403 91 13, ex 6403 91 16, ex 6403 91 18,
ex 6403 91 91, ex 6403 91 93, ex 6403 91 96, ex 6403 91 98, ex 6403 99 11, ex
6403 99 31, ex 6403 99 33, ex 6403 99 36, ex 6403 99 38, ex 6403 99 91, ex 6403
99 93, ex 6403 99 96, ex 6403 99 98 and ex 6405 10 00[30]  for the period of
application of Council Regulation (EC) No 1472/2006. The TARIC codes are listed
in the Annex to this Regulation. 
2.           For the purpose of this
Regulation, the following definitions shall apply:
–              
‘sports footwear’ shall mean footwear within the
meaning of subheading note 1 to Chapter 64 of Annex I of Commission Regulation
(EC) No 1719/2005[31];
–              
‘footwear involving special technology’ shall
mean footwear having a CIF price per pair of not less than EUR 7,5, for use in
sporting activities, with a single- or multi-layer moulded sole, not injected,
manufactured from synthetic materials specially designed to absorb the impact
of vertical or lateral movements and with technical features such as hermetic
pads containing gas or fluid, mechanical components which absorb or neutralise
impact, or materials such as low-density polymers and falling within CN codes
ex 6403 91 11, ex 6403 91 13, ex 6403 91 16, ex 6403 91
18, ex 6403 91 91, ex 6403 91 93, ex 6403 91 96, ex 6403 91 98, ex 6403 99 91,
ex 6403 99 93, ex 6403 99 96, ex 6403 99 98;
–              
‘footwear with a protective toecap’ shall mean
footwear incorporating a protective toecap with an impact resistance of at
least 100 joules (1) and falling within CN codes: ex 6403 30 00[32], ex 6403 51 11, ex
6403 51 15, ex 6403 51 19, ex 6403 51 91, ex 6403 51 95, ex 6403 51 99, ex 6403
59 11, ex 6403 59 31, ex 6403 59 35, ex 6403 59 39, ex 6403 59 91, ex 6403 59
95, ex 6403 59 99, ex 6403 91 11, ex 6403 91 13, ex 6403 91 16, ex 6403 91 18,
ex 6403 91 91, ex 6403 91 93, ex 6403 91 96, ex 6403 91
98, ex 6403 99 11, ex 6403 99 31, ex 6403 99 33, ex 6403 99 36, ex 6403 99 38,
ex 6403 99 91, ex 6403 99 93, ex 6403 99 96, ex 6403 99 98 and ex 6405 10 00;
–              
‘slippers and other indoor footwear’ shall mean
such footwear falling within CN code ex 6405 10 00.
3.           The rate of the definitive
anti-dumping duty applicable, before duty, to the net free-at-Union-frontier
price of the products described in paragraph 1 and manufactured by Brosmann
Footwear (HK) Ltd, Seasonable Footwear (Zhongshan) Ltd, Lung Pao Footwear (Guangzhou) Ltd, Risen Footwear (HK) Co Ltd and Zhejiang Aokang Shoes Co. Ltd shall be
16.5%. 
4.           The provisions in force
concerning customs duties shall apply, with the exception of Article 221 of
Council Regulation (EEC) 2913/1992 of 12 October 1992 establishing the
Community Customs Code[33].
Communication to the debtor of the amount of duty may take place more than
three years after the customs debt was incurred, but no later than two years
after the entry into force of this Regulation.
Article 2
The amounts secured by way of the
provisional anti-dumping duty pursuant to Commission Regulation (EC) No
553/2006 of 27 March 2006 shall be definitively collected. The amounts secured
in excess of the definitive rate of anti-dumping duties shall be released.
Article 3
This Regulation shall enter into force on
the day following 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 343,
22.12.2009, p. 51.
[2]               OJ L 275, 6.10.2006, p. 1.
[3]               OJ L 117, 1.5.2008, p. 1.
[4]               OJ L 352, 30.12.2009, p. 1.
[5]               OJ L 343, 22.12.2009, p. 51.
[6]               OJ L 98, 6.4.2006, p. 3.
[7]               Council Regulation (EC) No 1472/2006 of 5 October
2006 imposing a definitive anti-dumping duty and collecting definitely the
provisional duty imposed on imports of certain footwear with upper leather
originating in the People's Republic of China and Vietnam (OJ L 275, 6.10.2006,
p. 1)
[8]               Council Regulation (EC) No 388/2008 of 29 April 2008
extending the definitive anti-dumping measures imposed by Regulation (EC) No
1472/2006 on imports of certain footwear with uppers of leather originating in
the People’s Republic of China to imports of the same product consigned from
the Macao SAR, whether declared as originating in the Macao SAR or not (OJ L
117, 1.5.2008, p. 1)
[9]               OJ C 251, 3.10.2008, p. 21.
[10]             Council Implementing Regulation (EU) No 1294/2009 of 22
December 2009 imposing a definitive anti-dumping duty on imports of certain
footwear with uppers of leather originating in Vietnam and originating in the
People's Republic of China, as extended to imports of certain footwear with
uppers of leather consigned from the Macao SAR, whether declared as originating
in the Macao SAR or not, following an expiry review pursuant to Article 11(2)
of Council Regulation (EC) No 384/96 (OJ L 352, 30.12.2009, p. 1)
[11]             Joined cases 97, 193, 99 and 215/86 Asteris AE and
others and Hellenic Republic v Commission [1988] ECR 2181,
paragraphs 27 and 28.
[12]             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.
[13]             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.
[14]             OJ
C 295, 11.10.2013, p.6
[15]             Case
C-458/98 P Industrie des Poudres Sphériques v Council [2000]
I-8147.  
[16]             Case T-299/05 Shanghai Exceli
M&E Enterprise and Shanghai Adeptech Precision v Council [2009] ECR II- 565
('Shanghai Excelľ), paragraph 116 to 146.
[17]             Case C-141/08 P, Foshan Shunde
Yongjian Housewares & Hardware Co. Ltd, v. Council, paragraph 94 and
following.
[18]             Case 245/81 Edeka v Germany [1982] ECR 2746, paragraph 27.
[19]             Case 270/84 Licata v ESC [1986]
ECR 2305, paragraph 31 Case C-60/98 Butterfly Music v CEDEM [1999] ECR 1-3939,
paragraph 24; Case 68/69 Bundesknappschaft v Brock [1970] ECR 171, paragraph 6;
Case 1/73 Westzucker GmbH v Einfuhrund Vorratsstelle für Zucker [1973] 723,
paragraph 5; Case 143/73 SOPAD v FORMA a.o. [1973]  ECR 1433, paragraph 8; Case
96/77 Bauche [1978] ECR 383, paragraph 48; Case 125/77
KoninklijkeScholten-Honig NV e.a. v Floofdproduktschaap voor Akkerbouwprodukten
[1978] ECR 1991, paragraph 37; Case 40/79 Ρ v Commission [1981] ECR 361,
paragraph 12; Case T-404/05 Greece v Commission [2008] ECR 11-272, paragraph 77;
C-334/07 Ρ Commission v
Freistaat Sachsen [2008] ECR 1-9465, paragraph 53.
[20]             Case T-176/01 Ferrière Nord ν Commission [2004]
ECR 11-3931, paragraph 139; C-334/07 Ρ Commission v Freistaat Sachsen [2008] ECR 1-9465, paragraph 53.
[21]             Case C-169/95 Spain v Commission [1997] ECR I-135,
paragraph 51 to 54; Joined Cases T-116/01 and T-118/01, P&O European
Ferries (Vizcaya) SA [2003] ECR II-2957, paragraph 205.
[22]                    Case C-34/92 GruSa
Fleisch v Hauptzollamt Hamburg-Jonas [1993] ECR 1-4147, paragraph 22. The same
or similar wording can be found for example in Joined cases 212 to 217/80
Meridionale Industria Salumi α.δ. [1981] ECR 2735, paragraph 9 and
10; Case 21/81 Bout [1982] ECR 381, paragraph 13; case T-42/96 Eyckeler &
Malt v Commission [1998] ECR 11-401, paragraphs 53 and 55 to 56;
[23]                    [2004] ECR II-369,
paragraphs 36 to 37.
[24]             See also, Case C-337/88 Società agricola fattoria
alimentare (SAFA) [1990] ECR I-1, paragraph 13.
[25]                    Case 199/82 San Giorgio
[1983] ECR 3595, paragraph 13.
[26]             Case 458/98 P, Industrie des Poudres Spheriques v Council
of 3 October 2000
[27]             Joined Cases C-183/02 P and C-187/02 P Demesa and
Territorio Histórico de Álava v Commission [2004] ECR I-10609, paragraph 44;
Joined Cases T-427/04 andt T-17/05 France v Commission [2009]_ECR II-4315,
paragraph 261.
[28]             OJ L 302, 19.10.1992, p. 1.
[29]             By virtue of Commission Regulation (EC) No 1549/2006 of
17 October 2006 amending Annex I to Council Regulation (EEC) No 2658/87 on the
tariff and statistical nomenclature and on the Common Customs Tariff (OJ L 301,
31.10.2006, p.1) this CN code is replaced on 1 January 2007 by CN codes  ex
6403 51 05, ex 6403 59 05, ex 6403 91 05 and ex 6403 99 05.
[30]             As defined in Commission Regulation (EC) No 1719/2005
of 27 October 2005 amending Annex I to Council Regulation (EEC) No 2658/87 on
the tariff and statistical nomenclature and on the Common Customs Tariff (OJ L
286, 28.10.2005, p. 1). The product coverage is determined in combining the
product description in Article 1(1) and the product description of the
corresponding CN codes taken together.
[31]             OJ L 286, 28.10.2005, p. 1.
[32]             By virtue of Commission Regulation (EC) No 1549/2006 of
17 October 2006 amending Annex I to Council Regulation (EEC) No 2658/87 on the
tariff and statistical nomenclature and on the Common Customs Tariff (OJ L 301,
31.10.2006, p.1) this CN code is replaced on 1 January 2007 by CN codes ex 6403
51 05, ex 6403 59 05, ex 6403 91 05 and ex 6403 99 05.
[33]             OJ L 302, 19.10.1992, p. 1.
ANNEX
to the
Proposal for a Council Implementing
Regulation
re-imposing a definitive
anti-dumping duty and collecting definitely the provisional duty imposed on
imports of certain footwear with uppers of leather originating in the People's
Republic of China and produced by Brosmann Footwear (HK) Ltd, Seasonable
Footwear (Zhongshan) Ltd, Lung Pao Footwear (Guangzhou) Ltd, Risen Footwear
(HK) Co Ltd and Zhejiang Aokang Shoes Co. Ltd
TARIC codes
for footwear with uppers of leather or composition leather as defined in
Article 1
a) From 7
October 2006:
6403 30 00 39,
6403 30 00 89, 6403 51 11 90, 6403 51 15 90, 6403 51 19 90, 6403 51 91 90, 6403
51 95 90, 6403 51 99 90, 6403 59 11 90, 6403 59 31 90, 6403 59 35 90, 6403 59
39 90, 6403 59 91 90, 6403 59 95 90, 6403 59 99 90, 6403 91 11 99, 6403 91 13
99, 6403 91 16 99, 6403 91 18 99, 6403 91 91 99, 6403 91 93 99, 6403 91 96 99,
6403 91 98 99, 6403 99 11 90, 6403 99 31 90, 6403 99 33 90, 6403 99 36 90, 6403
99 38 90, 6403 99 91 99, 6403 99 93 29, 6403 99 93 99, 6403 99 96 29, 6403 99
96 99, 6403 99 98 29, 6403 99 98 99 and 6405 10 00 80
b) From 1
January 2007:
6403 51 05 19,
6403 51 05 99, 6403 51 11 90, 6403 51 15 90, 6403 51 19 90, 6403 51 91 90, 6403
51 95 90, 6403 51 99 90, 6403 59 05 19, 6403 59 05 99, 6403 59 11 90, 6403 59
31 90, 6403 59 35 90, 6403 59 39 90, 6403 59 91 90, 6403 59 95 90, 6403 59 99
90, 6403 91 05 19, 6403 91 05 99, 6403 91 11 99, 6403 91 13 99, 6403 91 16 99,
6403 91 18 99, 6403 91 91 99, 6403 91 93 99, 6403 91 96 99, 6403 91 98 99, 6403
99 05 19, 6403 99 05 99, 6403 99 11 90, 6403 99 31 90, 6403 99 33 90, 6403 99
36 90, 6403 99 38 90, 6403 99 91 99, 6403 99 93 29, 6403 99 93 99, 6403 99 96
29, 6403 99 96 99, 6403 99 98 29, 6403 99 98 99 and 6405 10 00 80
c) From 7
September 2007:
6403 20 00 20, 6403 20 00 80, 6403 51 05
15, 6403 51 05 18, 6403 51 05 95, 6403 51 05 98, 6403 51 11 91, 6403 51 11 99,
6403 51 15 91, 6403 51 15 99, 6403 51 19 91, 6403 51 19 99, 6403 51 91 91, 6403
51 91 99, 6403 51 95 91, 6403 51 95 99, 6403 51 99 91, 6403 51 99 99, 6403 59
05 15, 6403 59 05 18, 6403 59 05 95, 6403 59 05 98, 6403 59 11 91, 6403 59 11
99, 6403 59 31 91, 6403 59 31 99, 6403 59 35 91, 6403 59 35 99, 6403 59 39 91,
6403 59 39 99, 6403 59 91 91, 6403 59 91 99, 6403 59 95 91, 6403 59 95 99, 6403
59 99 91, 6403 59 99 99, 6403 91 05 15, 6403 91 05 18, 6403 91 05 95, 6403 91
05 98, 6403 91 11 95, 6403 91 11 98, 6403 91 13 95, 6403 91 13 98, 6403 91 16
95, 6403 91 16 98, 6403 91 18 95, 6403 91 18 98, 6403 91 91 95, 6403 91 91 98,
6403 91 93 95, 6403 91 93 98, 6403 91 96 95, 6403 91 96 98, 6403 91 98 95, 6403
91 98 98, 6403 99 05 15, 6403 99 05 18, 6403 99 05 95, 6403 99 05 98, 6403 99
11 91, 6403 99 11 99, 6403 99 31 91, 6403 99 31 99, 6403 99 33 91, 6403 99 33
99, 6403 99 36 91, 6403 99 36 99, 6403 99 38 91, 6403 99 38 99, 6403 99 91 95,
6403 99 91 98, 6403 99 93 25, 6403 99 93 28, 6403 99 93 95, 6403 99 93 98, 6403
99 96 25, 6403 99 96 28, 6403 99 96 95, 6403 99 96 98, 6403 99 98 25, 6403 99
98 28, 6403 99 98 95, 6403 99 98 98, 6405 10 00 81 and 6405 10 00 89