Notice concerning the implementation of the judgment of the Court of Justice in Joined Cases C-659/13 and C-34/14 C&J Clarks International Ltd and Puma SE in relation to anti-dumping measures concerning imports of footwear originating in the People’s Republic of China and Vietnam

(2019/C 405/07)

A.   Background

By Regulation (EC) No 1472/2006 (1) 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.

By Regulation (EC) No 388/2008 (2) the Council extended the definitive anti-dumping measures on imports of certain footwear with uppers of 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.

Further to an expiry review initiated on 3 October 2008, the Council further extended the anti-dumping measures for 15 months by Implementing Regulation (EU) No 1294/2009 (3), i.e. until 31 March 2011, when the measures expired.

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 challenged the Regulation (EC) No 1472/2006 in the Court of First Instance (now: the General Court).

By judgments of 4 March 2010 in Case T-401/06 Brosmann Footwear (HK) and Others v Council (4) and of 4 March 2010 in Joined Cases T-407/06 and T-408/06 Zhejiang Aokang Shoes and Wenzhou Taima Shoes v Council (5). The General Court rejected those challenges.

The applicants appealed those judgments to the Court of Justice.

In its judgments of 2 February 2012 in case C-249/10 P Brosmann Footwear (HK) and Others v Council and of 15 November 2012 in case C-247/10P Zhejiang Aokang Shoes v Council (‘the Brosmann and Aokang judgments’), the Court of Justice set those judgments aside. It held that the General Court erred in law in so far as it concluded that the Commission was not required to examine requests for market economy treatment (‘MET’) under Article 2(7)(b) and (c) of Regulation (EC) No 384/96 (6) from non-sampled traders. (7)

The Court of Justice then itself gave judgment in the matter. It held that ‘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 [Regulation (EC) No 1472/2006]. 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 [Regulation (EC) No 1472/2006]. 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’ (8).

As a consequence, it annulled the Regulation (EC) No 1472/2006 in so far as it relates to the applicants concerned.

Three importers of the product concerned, C&J Clark International Ltd (‘Clark’), Puma SE (‘Puma’) and Timberland Europe B.V. (‘Timberland’) challenged the anti-dumping measures on imports of certain footwear from China and Vietnam invoking the above jurisprudence before their national Courts, which referred the matters to the Court of Justice for a preliminary ruling.

On 4 February 2016, in the Joined Cases C-659/13 C & J Clark International Limited and C-34/14 Puma SE (9), the Court of Justice declared Regulation (EC) No 1472/2006 and Implementing Regulation (EU) No 1294/2009 invalid in so far as the European Commission did not examine the MET and individual treatment (‘IT’) claims submitted by exporting producers in the PRC and Vietnam that were not sampled, contrary to the requirements laid down in Articles 2(7)(b) and 9(5) of Council Regulation (EC) No 384/96.

Regarding Case C-571/14 Timberland Europe, the Court of Justice decided on 11 April 2016 to remove the case from the register at the request of the referring national court.

In view of the implementation of the judgment in the Joined Cases C-659/13 C & J Clark International Limited and C-34/14 Puma SE, the Commission adopted Implementing Regulation (EU) 2016/223 (10).

In Article 1 of that regulation, the Commission instructed national customs authorities to forward all requests for reimbursement of the definitive anti-dumping duties paid on imports of footwear originating in China and Vietnam made by importers based on Article 236 of the Community Customs Code and based on the fact that a non-sampled exporting producer had requested MET or IT in the investigation that lead to the imposition of the definitive measures by Regulation (EC) No 1472/2006.

Upon such notification, the Commission would then assess the relevant MET or IT claim and publish a regulation re-imposing the applicable anti-dumping duty rate, if any.

On this basis the national customs authorities should subsequently decide on the request for repayment and remission of the anti-dumping duties for the request concerned.

B.   Reimbursement request in the case of Eurotransit B.V. and First Precise Trading Limited

On 25 March 2019, in accordance with Article 1 of Implementing Regulation (EU) 2016/223, the Dutch customs authorities notified to the Commission the reimbursement claim of definitive anti-dumping duties paid on imports of the product concerned from one importer, Eurotransit B.V.

That notification explained that Eurotransit B.V. had imported the product concerned from First Precise Trading Limited. The notification does not indicate whether that company is an exporting producer or a trader. It also did not contain an address or specification as to whether that company is located in Vietnam or China.

After thorough analysis of the Dutch notification, the Commission observed that it had no record of a company with the specific or similar name to ‘First Precise Trading Limited’ having submitted an MET/IT claim form in the original investigation.

It follows that the definitive anti-dumping duties imposed by the existing measures were applicable to imports of footwear from First Precise Trading Limited, insofar as that company is located in Vietnam or China and insofar as that company actually exported the product concerned during the investigation period of the underlying investigation.

For the same reasons, the judgment of the Court of Justice in Joined Cases C-659/13 and C-34/14 C&J Clark International Limited and Puma could not have had the effect of annulling the anti-dumping duties imposed on certain footwear from Vietnam and China.

Consequently, the Commission concluded that the relevant reimbursement claim of Eurotransit B.V. should not be granted because the definitive anti-dumping duties imposed by Regulation (EC) No 1472/2006 were not annulled for First Precise Trading Limited.

C.   Comments of interested parties after disclosure

The above findings and conclusions were disclosed to all interested parties, including Eurotransit B.V. These parties were given a reasonable time period to comment.

Only Eurotransit B.V. submitted comments following disclosure. The company clarified that First Precise Trading Limited is a trader located in China and that the goods imported were of Vietnamese origin.

The Commission noted that trading companies are not entitled to any individual dumping margins and therefore were not eligible to provide MET/IT claims during the original investigation.

In any event, the Commission had no record of First Precise Trading Limited having submitted a MET/IT claim form in the original investigation.

Eurotransit B.V. stated to have no knowledge about the identity of the exporting producer concerned in Vietnam and whether or not it provided a MET/IT claim in the original investigation.

However, Eurotransit B.V provided contact details of First Precise Trading Limited. The Commission contacted First Precise Trading Limited and invited the company to provide the name and contact details of its supplier and the ultimate producer of footwear in Vietnam. It gave First Precise Trading Limited a period of 14 days to respond. First Precise Trading Limited did not react to this request.

D.   Conclusions

Considering the above it was concluded that the relevant reimbursement claim of Eurotransit B.V. should not be granted because the definitive anti-dumping duties imposed by Regulation (EC) No 1472/2006 were not annulled for First Precise Trading Limited.

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(1)  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 (OJ L 275, 6.10.2006, p. 1).

(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 (OJ L 117, 1.5.2008, p. 1).

(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 (OJ L 352, 30.12.2009, p. 1).

(4)  EU:T:2010:67.

(5)  EU:T:2010:68.

(6)  Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ L 56, 6.3.1996, p. 1).

(7)  EU:C:2012:53, paragraph 36 and EU:C:2012:710, paragraphs 29 and 32.

(8)  EU:C:2012:53, paragraph 42 and EU:C:2012:710, paragraphs 36.

(9)  OJ C 106, 21.3.2016, p. 2.

(10)  Commission Implementing Regulation (EU) 2016/223 of 17 February 2016 establishing a procedure for assessing certain market economy treatment and individual treatment claims made by exporting producers from China and Vietnam, and implementing the judgment of the Court of Justice in joined cases C-659/13 and C-34/14 (OJ L 41, 18.2.2016, p. 3).