Commission Implementing Regulation (EU) 2017/1982 of 31 October 2017 re-imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People's Republic of China and Vietnam and produced by Dongguan Luzhou Shoes Co. Ltd, Dongguan Shingtak Shoes Co. Ltd, Guangzhou Dragon Shoes Co. Ltd, Guangzhou Evervan Footwear Co. Ltd, Guangzhou Guangda Shoes Co. Ltd, Long Son Joint Stock Company and Zhaoqing Li Da Shoes Co., Ltd, implementing the judgment of the Court of Justice in Joined Cases C-659/13 and C-34/14

(86) Thus, while it is true that nothing in the Union's customs legislation allows for an obstacle to the reimbursement of erroneously paid customs duties to be erected, no such sweeping statement can be made in relation to the

reimbursement of anti-dumping duties. Accordingly, and with the overarching necessity to protect the Union's own resources from unjustified requests for repayment and the related difficulty this would have caused pursuing unjustified repayments thereafter, the Commission had to deviate temporarily from the Union's customs legislation by making use of its powers under Article 14(3) of the basic Regulation.

Lack of statement of legal basis

(87) FESI and the Footwear Coalition also argued that in violation of Article 296 TFEU, the Commission failed to provide adequate statement of reasons and indication of the legal basis on which duties were re-imposed retroactively and therefore the reimbursement of duties denied to the importers concerned by the current implementation. Accordingly, FESI and the Footwear coalition claimed that the Commission had breached the right to effective judicial protection of interested parties.

(88) The Commission considers that the extensive legal reasoning provided in the general disclosure document and in this Regulation duly motivates the latter.

Legitimate expectations

(89) FESI and the Footwear Coalition claimed further that the retroactive correction of expired measures violates the principle of protection of legitimate expectations. FESI argued that first, parties including importers, would have received assurance that the measures expired on 31 March 2011 and that given the time elapsed since the original investigation, parties were entitled to have justified expectations that the original investigation will not be resumed or reopened. Likewise, the Chinese and Vietnamese exporting producers were entitled to have justified legitimate expatiations that their MET/IT claims provided in the original investigation would not be reviewed anymore by the Commission, based on the mere fact that these claims were no assessed within the three-month period applicable during the original investigation.

(90) Regarding legitimate expectations of interested parties that anti-dumping measures expired and that the investigation will not be re-opened anymore, reference is made to recitals (78) and (79) and where these claims had been addressed in detail.

(91) Regarding the legitimate expectations of Chinese and Vietnamese exporting producers not to have their MET/IT claims reviewed, reference is made to recital (74) above, where this has equally been addressed in light of the case-law of the Court on this matter.

Principle of non-discrimination

(92) FESI and the Footwear Coalition submitted that the imposition of anti-dumping measures with retroactive effects constitutes discrimination of (i) the importers concerned by the current implementation vis-à-vis importers concerned by the implementation of the Brosmann and Aokang judgments referred to in recital (6) that were reimbursed duties paid on imports of footwear from the five exporting producers concerned by these judgments, as well as (ii) a discrimination of the exporting producers concerned by the current implementation vis-à-vis the five exporting producers concerned by the Brosmann and Aokang judgments which were not made subject of any duty following Implementing Decision 2014/149/EU.

(93) Regarding the claim on discrimination, the Commission recalls first of all the requirements for discrimination, as set out in recital (67) above.

(94) Then, it is noted that the difference between importers concerned by the current implementation and those concerned by the implementation of the Brosmann and Aokang judgments is that the latter decided to challenge Regulation (EC) No 1472/2006 in the General Court, whereas the former did not.

(95) A decision adopted by a Union institution, which has not been challenged by its addressee within the time-limit laid down by the sixth paragraph of Article 263 TFEU, becomes definitive as against him. That rule is based in particular on the consideration that the periods within which legal proceedings must be brought are intended to ensure legal certainty by preventing Union measures which produce legal effects from being called into question indefinitely

Case C-239/99 Nachi Europe [2001], ECR I-01197, at paragraph 29.

.

(96) This procedural principle of Union law necessarily creates two groups: those which challenged a Union measure and who may have gained a favourable position as a result (like Brosmann and the other four exporting producers), and those who did not. Yet, that does not mean that the Commission has treated the two parties unequally in violation of the principle of equal treatment. An acknowledgement that a party falls into the latter category because of a conscious decision not to challenge a Union measure does not discriminate against that group.

(97) So, all interested parties did enjoy judicial protection in the Union courts at all times.

(98) Insofar as it concerns the alleged discrimination of the exporting producers concerned by the current implementation which were not made subject of any duty following Implementing Decision 2014/149/EU, it should be noted that the decision of the Council not to re-impose duties was clearly taken with regard to the particular circumstances of the specific situation as it stood at the time the Commission made its proposal for the re-imposition of those duties and in particular on the grounds that the anti-dumping duties concerned had already been reimbursed, and to the extent that the original communication of the debt to the debtor in question had been withdrawn following the judgments in Brosmann and Aokang. According to the Council, this reimbursement had created legitimate expectations on the part of the importers concerned. Since no comparable reimbursement took place for other importers, these are not in a comparable situation to those importers concerned by the Council decision.

(99) In any event, the fact that the Council chose to act in a certain way, given the particular circumstances of the case before it, cannot bind the Commission to implement another judgment in the exact same way.

Commission's competence to impose definitive anti-dumping measures

(100) In addition, FESI and the Footwear Coalition claimed that the Commission does not have the competence to adopt the Regulation imposing an anti-dumping duty retroactively in the current implementation exercise, and that this competence would in any event lie with the Council. This claim was based on the argument that if the investigation is resumed at the very point at which the illegality occurred, the same rules should also be applicable as the ones at the time of the original investigation, where definitive measures were adopted by the Council. These parties argued that in accordance with Article 3 of Regulation (EU) No 37/2014

Regulation (EU) No 37/2014 of the European Parliament and of the Council of 15 January 2014 amending certain regulations relating to the common commercial policy as regards the procedures for the adoption of certain measures (OJ L 18, 21.1.2014, p. 1).

(also called Omnibus I Regulation), the new decision-making procedure in the field of the common commercial policy does not apply to the present context given that before the entry into force of the Omnibus I Regulation the Commission (i) had already adopted an act (the provisional Regulation), (ii) the consultations that were required under Regulation (EC) No 384/96 on protection against dumped imports from countries not members of the European Community were initiated and concluded, and (iii) the Commission had already adopted a proposal for a Council Regulation adopting definitive measures. On this basis, these parties concluded that the decision making procedures prior to the entry in force of the Omnibus I Regulation should apply.

(101) That claim, however, focuses on the date of initiation of the investigation (which is indeed relevant in relation to the other substantive amendments that were made to the basic Regulation) but fails to note that Regulation (EU) No 37/2014 uses a different criterion (that is, the initiation of the procedure for adoption of measures). The position of FESI and the Footwear Coalition is therefore based on an incorrect interpretation of the transitional rule in Regulation (EU) No 37/2014.

(102) Indeed, given the reference in Article 3 of Regulation (EU) No 37/2014 to procedures initiated for the adoption of measures, which sets out the transitional rules for the changes to the decision-making procedures for the adoption of anti-dumping measures, and given the meaning of procedure in the basic Regulation, for an investigation that was initiated prior to the entry into force of Regulation (EU) No 37/2014, but where the Commission had not launched the consultation of the relevant committee with a view to adopting measures prior to that entry into force, the new rules apply to the procedure for adopting the said anti-dumping measures. The same holds true for proceedings where measures had been imposed on the basis of the old rules and come up for review, or for measures where provisional duties had been imposed on the basis of the old rules, but the procedure for adopting definitive measures had not been launched yet when Regulation (EU) No 37/2014 entered into force. In other words, Regulation (EU) No 37/2014 applies to a specific procedure for adoption and not to the entire period of a given investigation or even proceeding.

(103) The contested Regulation was adopted in 2006. The relevant legislation applicable to this proceeding is the basic Regulation. Therefore, this claim is rejected.

F.

CONCLUSIONS

(104) Having taken account of the comments made and the analysis thereof, the Commission concluded that the residual anti-dumping duty applicable to China and Vietnam, i.e. 16,5 % and 10 % respectively, should be re-imposed for the period of application of the contested Regulation.

G.

DISCLOSURE

(105) 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 re-imposition of the definitive anti-dumping duty on exports of the seven exporting producers concerned. They were granted a period within which to make representations subsequent to disclosure.

(106) This Regulation is in accordance with the opinion of the Committee established by Article 15(1) of Regulation (EU) 2016/1036,

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 Vietnam and produced by the exporting producers listed in Annex II to this Regulation and falling within CN codes: 64032000, ex64033000

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 ex64035105, ex64035905, ex64039105 and ex64039905.

, ex64035111, ex64035115, ex64035119, ex64035191, ex64035195, ex64035199, ex64035911, ex64035931, ex64035935, ex64035939, ex64035991, ex64035995, ex64035999, ex64039111, ex64039113, ex64039116, ex64039118, ex64039191, ex64039193, ex64039196, ex64039198, ex64039911, ex64039931, ex64039933, ex64039936, ex64039938, ex64039991, ex64039993, ex64039996, ex64039998 and ex64051000

As defined in Regulation (EC) No 1719/2005. 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.

which took place during the period of application of Regulation (EC) No 1472/2006 and Implementing Regulation (EU) No 1294/2009. The TARIC codes are listed in the Annex I to this Regulation.

1. 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

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).

;

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 ex64039111, ex64039113, ex64039116, ex64039118, ex64039191, ex64039193, ex64039196, ex64039198, ex64039991, ex64039993, ex64039996, ex64039998;

footwear with a protective toecap shall mean footwear incorporating a protective toecap with an impact resistance of at least 100 joules

The impact resistance shall be measured according to European Norms EN345 or EN346.

and falling within CN codes: ex64033000

By virtue of Regulation (EC) No 1549/2006 this CN code is replaced on 1 January 2007 by CN codes ex64035105, ex64035905, ex64039105 and ex64039905.

, ex64035111, ex64035115, ex64035119, ex64035191, ex64035195, ex64035199, ex64035911, ex64035931, ex64035935, ex64035939, ex64035991, ex64035995, ex64035999, ex64039111, ex64039113, ex64039116, ex64039118, ex64039191, ex64039193, ex64039196, ex64039198, ex64039911, ex64039931, ex64039933, ex64039936, ex64039938, ex64039991, ex64039993, ex64039996, ex64039998 and ex64051000;

slippers and other indoor footwear shall mean such footwear falling within CN code ex64051000.

1. 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 the exporting producers listed in Annex II to this Regulation shall be 16,5 % for the Chinese exporting producers concerned and 10 % for the Vietnamese exporting producer concerned.

Article 2

The amounts secured by way of the provisional anti-dumping duty pursuant to Regulation (EC) No 553/2006 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 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, 31 October 2017.

For the Commission

The President

Jean-Claude Juncker

Annex

ANNEX I

TARIC codes for footwear with uppers of leather or composition leather as defined in Article 1:

(a) From 7 October 2006:

6403300039, 6403300089, 6403511190, 6403511590, 6403511990, 6403519190, 6403519590, 6403519990, 6403591190, 6403593190, 6403593590, 6403593990, 6403599190, 6403599590, 6403599990, 6403911199, 6403911399, 6403911699, 6403911899, 6403919199, 6403919399, 6403919699, 6403919899, 6403991190, 6403993190, 6403993390, 6403993690, 6403993890, 6403999199, 6403999329, 6403999399, 6403999629, 6403999699, 6403999829, 6403999899 and 6405100080

(b) From 1 January 2007:

6403510519, 6403510599, 6403511190, 6403511590, 6403511990, 6403519190, 6403519590, 6403519990, 6403590519, 6403590599, 6403591190, 6403593190, 6403593590, 6403593990, 6403599190, 6403599590, 6403599990, 6403910519, 6403910599, 6403911199, 6403911399, 6403911699, 6403911899, 6403919199, 6403919399, 6403919699, 6403919899, 6403990519, 6403990599, 6403991190, 6403993190, 6403993390, 6403993690, 6403993890, 6403999199, 6403999329, 6403999399, 6403999629, 6403999699, 6403999829, 6403999899 and 6405100080

(c) From 7 September 2007:

6403510515, 6403510518, 6403510595, 6403510598, 6403511191, 6403511199, 6403511591, 6403511599, 6403511991, 6403511999, 6403519191, 6403519199, 6403519591, 6403519599, 6403519991, 6403519999, 6403590515, 6403590518, 6403590595, 6403590598, 6403591191, 6403591199, 6403593191, 6403593199, 6403593591, 6403593599, 6403593991, 6403593999, 6403599191, 6403599199, 6403599591, 6403599599, 6403599991, 6403599999, 6403910515, 6403910518, 6403910595, 6403910598, 6403911195, 6403911198, 6403911395, 6403911398, 6403911695, 6403911698, 6403911895, 6403911898, 6403919195, 6403919198, 6403919395, 6403919398, 6403919695, 6403919698, 6403919895, 6403919898, 6403990515, 6403990518, 6403990595, 6403990598, 6403991191, 6403991199, 6403993191, 6403993199, 6403993391, 6403993399, 6403993691, 6403993699, 6403993891, 6403993899, 6403999195, 6403999198, 6403999325, 6403999328, 6403999395, 6403999398, 6403999625, 6403999628, 6403999695, 6403999698, 6403999825, 6403999828, 6403999895, 6403999898, 6405100081 and 6405100089

Annex

ANNEX II

List of exporting producers for which imports a definitive anti-dumping duty is imposed

Name of the exporting producer

Reference in Implementing Regulation (EU) 2017/423

(Annex VI)

TARIC additional codeDongguan Luzhou Shoes Co. LtdDah Lih PuhA999Dongguan Shingtak Shoes Co. LtdShing Tak Ind. Co. LtdA999Guangzhou Dragon Shoes Co. LtdShing Tak Ind. Co. LtdA999Guangzhou Evervan Footwear Co. Ltd

Everan Group P/A EVA Overseas International, Ltd

and

Everan Group P/A Jiangxi Guangyou Footwear Co.

A999Guangzhou Guangda Shoes Co. LtdShing Tak Ind. Co. LtdA999Long Son Joint Stock CompanyLong Son Joint Stock CompanyA999Zhaoqing Li Da Shoes Co., LtdDah Lih PuhA999