(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’ or ‘China’) and Vietnam (‘the provisional Regulation’) (2).

(2)

By Regulation (EC) No 1472/2006 (3), 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 (‘Regulation (EC) No 1472/2006’ or ‘the contested Regulation’).

(3)

By Regulation (EC) No 388/2008 (4), 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.

(4)

Further to an expiry review initiated on 3 October 2008 (5), the Council further extended the anti-dumping measures for 15 months by Implementing Regulation (EU) No 1294/2009 (6), i.e. until 31 March 2011, when the measures expired (‘Implementing Regulation (EU) 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 applicants’) challenged the contested Regulation 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 and of 4 March 2010 in Joined Cases T-407/06 and T-408/06 Zhejiang Aokang Shoes and Wenzhou Taima Shoes v Council the General Court rejected those challenges.

(6)

The applicants appealed those judgments. 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-247/10 P Zhejiang Aokang Shoes v Council (‘the Brosmann and Aokang judgments’), the Court of Justice set aside those judgments. It held that the GeneralCourt 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 judgment in Case C-249/10 P and paragraph 29 and 32 of the judgment in Case C-247/10 P).

(7)

The Court of Justice then gave judgment itself 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 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 judgment in Case C-249/10 P and paragraph 36 of the judgment in Case C-247/10 P).

(8)

As a consequence, it annulled the contested Regulation, in so far as it relates to the applicants concerned.

(9)

In October 2013, the Commission, by means of a notice published in the Official Journal of the European Union (7), announced that it had decided to resume the anti-dumping proceeding at the very point at which the illegality occurred and to examine whether market economy conditions prevailed for the applicants for the period from 1 April 2004 to 31 March 2005. That notice invited interested parties to come forward and make themselves known.

(10)

In March 2014, the Council, by Council Implementing Decision 2014/149/EU (8), rejected a Commission proposal to adopt a Council Implementing Regulation reimposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on 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 and terminated the proceedings with regard to these producers. The Council took the view that importers having bought shoes from those exporting producers, to whom the relevant customs duties had been reimbursed by the competent national authorities on the basis of Article 236 of Regulation (EEC) No 2913/1992 of 12 October 1992 establishing the Community Customs Code (9) (‘the Community Customs Code’), had acquired legitimate expectations on the basis of Article 1(4) of the contested Regulation, which had rendered the provisions of the Community Customs Code, and in particular its Article 221, applicable to the collection of the duties.

(11)

Three importers of the product concerned, C&J Clark International Ltd (‘Clark’), Puma SE (‘Puma’) and Timberland Europe B.V. (‘Timberland’) (‘the importers concerned’) challenged the anti-dumping measures on imports of certain footwear from China and Vietnam invoking the jurisprudence mentioned in recitals 5 to 7 before their national Courts, which referred the matters to the Court of Justice for a preliminary ruling.

(12)

On 4 February 2016, in the Joined Cases C-659/13 C & J Clark International Limited and C-34/14 Puma SE (10), 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 (‘the judgments’), contrary to the requirements laid down in Articles 2(7)(b) and 9(5) of Council Regulation (EC) No 384/96 (11).

(13)

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.

(14)

Article 266 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 judgment consists in the replacement of the annulled act by a new act, in which the illegality identified by the Court is eliminated (12).

(15)

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 (13). 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 (14), except if the illegality occurred at the stage of initiation.

(16)

Apart from the fact that the institutions did not examine the MET and IT claims submitted by exporting producers in the PRC and Vietnam that were not sampled, all other findings made in Regulation (EC) No 1472/2006 and Implementing Regulation (EU) No 1294/2009 remain valid.

(17)

In the present case, the illegality occurred after initiation. Hence, the Commission decided to resume the present anti-dumping proceeding that was still open following the judgments 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, which was the investigation period (‘investigation period’). The Commission also examined, where appropriate, whether the exporting producers concerned qualified for IT in accordance with 9(5) of Council Regulation (EC) No 1225/2009 (15) (the ‘basic Regulation prior to its amendment’) (16).

(18)

By Implementing Regulation (EU) 2016/1395 (17), the Commission reimposed a definitive anti-dumping duty and collected definitely the provisional duty imposed on imports of Clark and Puma of certain footwear with uppers of leather originating in the PRC and produced by thirteen Chinese exporting producers that have submitted MET and IT claims but that had not been sampled.

(19)

By Implementing Regulation (EU) 2016/1647 (18), the Commission reimposed a definitive anti-dumping duty and collected definitely the provisional duty imposed on imports of Clark, Puma and Timberland of certain footwear with uppers of leather originating in Vietnam and produced by certain Vietnamese exporting producers that had submitted MET and IT claims, but had not been sampled.

(20)

By Implementing Regulation (EU) 2016/1731 (19), the Commission reimposed a definitive anti-dumping duty and collected definitely the provisional duty imposed on imports of Puma and Timberland of certain footwear with uppers of leather originating in the People's Republic of China and produced by one exporting producer in Vietnam and by two exporting producers in the PRC that submitted MET and IT claims, but had not been sampled.

(21)

The validity of Regulation (EU) 2016/1395, Regulation (EU) 2016/1647 and Regulation (EU) 2016/1731 has been challenged by Puma and Timberland at the General Court in Cases T-781/16 Puma and Others v Commission and T-782/16 Timberland Europe v Commission. Furthermore, the validity of Regulation (EU) 2016/1395 has also been challenged at the General Court by Clark in Cases T-790/16 C & J Clark International v Commission and T-861/16 C & J Clark International v Commission.

(22)

In view of the implementation of the judgment in Joined Cases C-659/13 C & J Clark International Limited and C-34/14 Puma SE mentioned in recital 12, the Commission adopted on 17 February 2016 Implementing Regulation (EU) 2016/223 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 (20). 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 (‘original investigation’). The Commission shall assess the relevant MET or IT claim and reimpose the appropriate duty rate. On this basis the national customs authorities should subsequently decide on the request for repayment and remission of the anti-dumping duties.

(23)

Following a notification from the French customs authorities in accordance with Article 1 of Implementing Regulation (EU) 2016/223, the Commission identified two Chinese exporting producers that provided MET and IT claims in the original investigation but that had not been sampled. Another exporting producer was identified that was supplier of Deichmann, a German importer that contested the payment of duties. Consequently, the Commission analysed the MET and IT claim form from these three Chinese exporting producers.

(24)

As a result of the above, by Implementing Regulation (EU) 2016/2257 (21), the Commission reimposed a definitive anti-dumping duty and collected definitely the provisional duty imposed on imports certain footwear with uppers of leather originating in the People's Republic of China and produced by three exporting producers that had submitted MET and IT claims but that had not been sampled.

(25)

In accordance with Article 1 of Implementing Regulation (EU) 2016/223, the UK, Belgian (‘BE’), and Swedish (‘SE’) customs authorities notified the Commission reimbursement claims of importers on 12 July 2016 (UK), 13 July 2016 (BE) and 26 July 2016 (SE). As a result of these notifications, the Commission analysed MET and IT claims from nineteen exporting producers and, by Regulation (EU) 2017/423 (22), reimposed a definitive anti-dumping duty and collected definitely the provisional duty imposed on imports certain footwear with uppers of leather originating in the PRC and Vietnam and produced by these nineteen exporting producers.

(26)

During the above investigation, through comments made by several interested parties following disclosure, five additional companies/company groups were identified that had either themselves or via a related Chinese or Vietnamese exporting producer submitted a MET and IT claim form during the original investigation, but that were not sampled and that had not been assessed in any previous implementation exercise. These companies were listed in Annex VI to Regulation (EU) 2017/423 and were part of four company groups.

(27)

On this basis, the Commission identified four company groups comprising together seven individual companies that were Chinese or Vietnamese exporting producers that were not sampled in the original investigation and assessed the MET and IT claim forms that these companies had submitted during the original investigation. As a result, by Implementing Regulation (EU) 2017/1982 (23), the Commission reimposed a definitive anti-dumping duty and collected definitely the provisional duty imposed on imports certain footwear with uppers of leather originating in the People's Republic of China and produced by these exporting producers that had submitted MET and IT claims but that had not been sampled.

(28)

In addition, in Article 3 of the Implementing Regulation (EU) 2017/423, the Commission temporarily suspended the assessment of the situation of companies listed in its Annex III until the importer claiming reimbursement from national customs authorities has informed the Commission of names and addresses of the exporting producers concerned from which traders have purchased the footwear. Indeed, while the Commission considers that the burden of proof to identify the relevant exporting producers in China and/or Vietnam lies with the importers requesting reimbursement of the anti-dumping duties paid, it also recognised that not all importers that bought footwear from traders may have been aware of the need to inform the Commission of the names of the exporting producers from which those traders acquired their footwear. Therefore, the Commission specifically contacted all importers concerned by the UK, Belgian, and Swedish notifications and invited them to provide the necessary information, i.e. the names and addresses of the exporting producers in the PRC or Vietnam within a specified deadline.

(29)

As a consequence, three importers, i.e. Pentland Brands Ltd, Puma UK Ltd and Deichmann Shoes UK Ltd provided the names and addresses of their respective suppliers in China and/or Vietnam on 18 April 2017 (Puma UK Ltd), on 27 April 2017 (Pentland Brands Ltd) and on 15 May 2017 (Deichmann Shoes UK Ltd), respectively.

(30)

On 7 April 2017, in accordance with Article 1 of Implementing Regulation (EU) 2016/223, the customs authorities of Germany notified the Commission reimbursement claims of importers in the Union and provided supporting documents. On 20 June 2017, the customs authorities of Germany sent an addendum to their original notification and notified the Commission additional claims of importers.

(31)

On 23 May 2017, in accordance with Article 1 of Implementing Regulation (EU) 2016/223, the customs authorities of the Netherlands notified the Commission reimbursement claims of importers in the Union and provided supporting documents. On 21 July 2017, the customs authorities of the Netherlands sent an addendum to their original notification and notified the Commission additional claims of importers.

(32)

As a result, the Commission received names and addresses of a total of 600 companies that were reported as suppliers of footwear in the PRC and Vietnam.

(33)

For 431 of these companies (listed in the Annex III to this Regulation) the Commission has no record that these companies had submitted any MET or IT claim form in the original investigation. These companies were also not able to demonstrate that they were related to any of the Chinese or Vietnamese exporting producers that had provided a MET/IT claim in the original investigation.

(34)

Out of the remaining companies, 19 exporting producers were already assessed individually or as part of a company group selected in the sample of Chinese or Vietnamese exporting producers in the context of the original investigation (listed in the Annex IV to this Regulation). As none of these companies received an individual duty rate, the duty for the PRC of 16,5 % or of 10 % for Vietnam, is applied to imports of footwear from these companies respectively. These rates were not affected by the judgment mentioned in recital 12.

(35)

Out of the remaining companies, 72 exporting producers (listed in Annex V to this Regulation) were already assessed either individually or as part of a company group in the context of the implementation of the judgment mentioned in recital 12: namely, in Implementing Decision 2014/149/EU or in Implementing Regulations (EU) 2016/1395, (EU) 2016/1647, (EU) 2016/1731, (EU) 2016/2257 and (EU) 2017/1982 respectively.

(36)

Companies or company groups assessed by Implementing Decision 2014/149/EU were not made subject to any reimposition of an anti-dumping duty, as mentioned in recital 10, on the basis that the reimbursement of duties to these companies had already taken place and thus provided legitimate expectations to them that no such reimposition would occur. The reimbursement claims of importers in the Union relating to companies or company groups assessed by Implementing Regulations (EU) 2016/1395, (EU) 2016/1647, (EU) 2016/1731, (EU) 2016/2257 and (EU) 2017/1982, should, on the other hand, not be granted. This is because these importers find themselves in a different legal situation than those assessed by Implementing Decision 2014/149/EU, having notably not gained legitimate expectations.

(37)

The remaining 70 companies (listed in Annex II to this Regulation) were Chinese or Vietnamese exporting producers that were not sampled in the original investigation and that had submitted an MET/IT claim form. The Commission therefore assessed the MET and IT claims provided by these companies.

(38)

In summary, in this Regulation, the Commission assessed the MET/IT claim forms of: Aiminer Leather Products Co., Ltd, Best Health Ltd, Best Run Worldwide Co. Ltd, Bright Ease Shoe Factory, Cambinh Shoes Company, Dong Anh Footwear Joint Stock Company, Dong Guan Bor Jiann Footwear Co., Ltd, Dongguan Hongguo Shoes Co. Ltd, Freetrend Industrial Ltd, Freeview Company Ltd, Dongguan Hopecome Footwear Co. Ltd, Dongguan Houjie Baihou Hua Jian Footwear Factory, Dongguan Qun Yao Shoe Co., Ltd, Dongyi Shoes Co., Ltd, Doozer (Fujian) Shoes Co., Ltd, Emperor (VN) Co., Ltd, Everlasting Industry Co., Ltd, Fu Jian Ching Luh Shoes Co., Ltd, Fu Jian Lion Score Sport Products Co., Ltd, Fujian Footwear & Headgear Import & Export (Holdings) Co., Ltd, Fujian Jinjiang Guohui Footwear & Garment Co., Ltd, Gan Zhou Hua Jian International Footwear Co., Ltd, Golden Springs Shoe Co., Ltd, Haiduong Shoes Stock Company, Hangzhou Forever Shoes Factory, Hua Jian Industrial Holding Co., Ltd, Huu Nghi Danang Company, Hwa Seung Vina Co., Ltd, Jason Rubber Works Ltd, Jinjiang Hengdali Footwear Co., Ltd, Jinjiang Xiangcheng Footwear and Plastics Co., Ltd, JinJiang Zhenxing Shoes & Plastic Co., Ltd, Juyi Group Co., Ltd, K Star Footwear Co., Ltd, Kangnai Group Wenzhou Lucky Shoes and Leather Co., Ltd, Khai Hoan Footwear Co., Ltd, Lian Jiang Ching Luh Shoes Co., Ltd, Li-Kai Shoes Manufacturing Co., Ltd, New Star Shoes Factory, Ngoc Ha Shoe Company, Nhi Hiep Transportation Construction Company Limited, Ophelia Shoe Co., Ltd, Ormazed Shoes (Zhao Qing City) Ltd, Ormazed Shoes Ltd (Dong Guan) Ltd, Pacific Joint — Venture Company, Phuc Yen Shoes Factory, Phuha Footwear Enterprise, Phuhai Footwear Enterprise, Phulam Footwear Joint Stock Company, Putian Dajili Footwear Co., Ltd, Right Rich Development VN Co., Ltd, Saigon Jim Brother Corporation, Shenzhen Harson Shoes Ltd, Shunde Sunrise (II) Footwear Co., Ltd, Splendour Enterprise Co., Ltd, Stellar Footwear Co., Ltd, Sung Hyun Vina Co., Ltd, Synco Footwear Ltd, Thai Binh Shoes Joint Stock Company, Thang Long Shoes Company, Thanh Hung Co., Ltd, Thuy Khue Shoes Company Ltd, Truong Loi Shoes Company Limited, Wenzhou Chali Shoes Co., Ltd, Wenzhou Dibang Shoes Co., Ltd, Wenzhou Gold Emperor Shoes Co., Ltd, Xiamen Sunchoose Import & Export Co., Ltd, Xingtaiy Footwear Industry & Commerce Co., Ltd, Zhuhai Shi Tai Footwear Company Limited, and Zhuhai Shun Tai Footwear Company Limited.

(39)

The Commission has 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 (24).

(40)

This Regulation seeks to correct the aspects of the contested Regulation found to be inconsistent with the basic Regulation, and which thus led to the declaration of invalidity in so far as the exporting producers mentioned in recital 30 are concerned.

(41)

All other findings made in the contested Regulation and in Implementing Regulation (EU) No 1294/2009, which were not declared invalid by the Court, remain valid and are herewith incorporated into this Regulation.

(42)

Therefore, the following recitals are limited to the new assessment necessary in order to comply with the judgments of the Court.

(43)

The Commission has examined whether MET or IT prevailed for the exporting producers concerned mentioned in recital 38 which submitted MET/IT requests for the investigation period. The purpose of this determination is to ascertain the extent to which the importers concerned are entitled to receive a repayment of the anti-dumping duty paid with regard to anti-dumping duties paid on exports of these suppliers.

(44)

Should the analysis reveal that MET was to be granted to the exporting producers concerned whose exports were subject to the anti-dumping duty paid by the importers concerned, an individual duty rate would have to be attributed to that exporting producer and the repayment of the duty would be limited to an amount corresponding to a difference between the duty paid and the individual duty rate, i.e. in case of imports from China, the difference between 16,5 %, and the duty imposed on the only exporting company in the sample that obtained MET, namely 9,7 %; and, in case of imports from Vietnam, the difference between 10 % and the individual duty rate calculated for the exporting producer concerned, if any.

(45)

Should the analysis reveal that IT was to be granted to an exporting producer for which MET was rejected, an individual duty rate would have to be attributed to the exporting producer concerned and the repayment of the duty would be limited to an amount corresponding to a difference between the duty paid, i.e. in case of imports from China 16,5 % and in case of imports from Vietnam 10 %, and the individual duty calculated for the exporting producer concerned, if any.

(46)

Conversely, should the analysis of such MET and IT claims reveal that both MET and IT should be rejected, no repayment of anti-dumping duties can be awarded.

(47)

As explained in recital 12, the Court of Justice annulled the contested Regulation and Implementing Regulation (EU) No 1294/2009 with regard to exports of certain footwear from certain Chinese and Vietnamese exporting producers, in so far as the Commission did not examine the MET and IT claims submitted by these exporting producers.

(48)

The Commission has therefore examined the MET and IT claims of the exporting producers concerned in order to determine the duty rate applicable to their exports. That assessment showed that the information provided did not demonstrate that the exporting producers concerned operated under market economy conditions or that they qualified for individual treatment (see for a detailed explanation below recitals 49 and following).

(49)

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 Union 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 Union 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 Union judicature to examine whether that assessment is vitiated by a manifest error (paragraph 32 of the judgment in Case C-249/10 P and paragraph 24 of the judgment in Case C-247/10 P).

(50)

In accordance with Article 2(7)(c) of the basic Regulation, all five criteria listed in this article should be met so that an exporting producer can be granted MET. Therefore, the Commission considered that the failure to meet at least one criterion was enough to reject the MET request.

(51)

None of the exporting producers concerned was able to demonstrate that they met criterion 1 (Business decisions). More specifically, the Commission found that Companies 34, 36, 37, 38, 39, 42, 43, 44, 45, 46, 47,48, 53, 54, 58, 65, 66, 67, 69, 72, 77, 79, 80, 82, 84, 85, 88, 89, 92, 93, 94, 96, 97, 98, 99, 100, 101 and 102 (25) could not determine freely their sales quantities for domestic and exporting markets. In this respect, the Commission established that there were limitations on the output and/or a limitation to sales quantities on specific markets (domestic and export). Certain Companies 33, 35, 39, 49, 50, 51, 52, 53, 54, 55, 58, 59, 60, 61, 62, 63, 66, 67, 68, 69, 70, 72, 73, 74, 75, 77, 81, 83, 84, 85, 86, 87, 91, 96, 97, 101 and 102 did not provide sufficient information on their ownership structure, shareholder, board of directors, or the selection of directors to demonstrate that their business decisions were taken in accordance with market signals without significant State interference. Furthermore, certain companies failed to provide a business licence or an English translation thereof (Companies 33, 35, 59, 60, 62, 81 and 87), or failed to provide the Articles of Association or an English translation thereof (Companies 34, 40, 41, 51, 59, 63, 64, 95, 101 and 102). Additionally, certain companies did not provide sufficient information on their suppliers (Companies 42, 43, 44, 46, 49, 51, 57, 60, 64, 65, 69, 74, 76 and 95) or were unable to demonstrate that the selection of labour was sufficiently independent from local authorities (Companies 38, 39, 42, 45 and 46) and therefore did not provide sufficient evidence that business decisions were taken without significant state interference.

(52)

Additionally, Companies 33, 34, 35, 40, 41, 43, 44, 45, 46, 47, 48, 49, 50, 51, 57, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 72, 73, 74, 75, 76, 79, 80, 81, 82, 84, 85, 86, 87, 88, 91, 93, 94, 95, 96, 97, 100, 101 and 102 were not able to demonstrate they met criterion 2 (Accounting). More specifically, Companies 33, 43, 45, 46, 47, 48, 49, 50, 51, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 73, 74, 75, 76, 79, 80, 81, 82, 84, 85, 86, 87, 88, 91, 93, 94, 96, 97, 101 and 102 failed to demonstrate that they had a set of basic accounting records independently audited in line with international accounting standards. In particular, the MET assessments revealed that these companies either failed to provide the Commission with an independent auditor opinion/report, or their accounts were not audited, or lacked explanatory notes on several items of the balance sheet and income statement. Other companies failed to provide an English translation thereof (Companies 34, 35, 40, 41, 51, 57, 69, 70, 95 and 100). Furthermore, the audited accounts of certain Companies 43, 44, 45, 57, 65 and 72 were found to have significant inconsistencies, inter alia, discrepancies in the data reported for different years, differences between the original version and the English translation, doubt on the correctness of depreciation method, inventory and stock taking, or problems noted by the auditors' report that were not corrected subsequently. Therefore these companies did not fulfil criterion 2.

(53)

Regarding criterion 3 (Assets and ‘carry over’), several companies failed to demonstrate that no distortions are carried over from the non-market economy system. In particular, the Companies 33, 34, 35, 36, 37, 38, 39, 42, 43, 44, 47, 48, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 70, 72, 74, 75, 76, 77, 80, 81, 83, 84, 85, 86, 87, 88, 91, 94, 95, 96, 97, 101 and 102 failed to provide essential and complete information about the terms and the value of the land use-rights. Furthermore, Companies 34, 35, 37, 38, 39, 42, 43, 45, 46, 52, 53, 54, 57, 60, 63, 65, 66, 72, 77, 79, 84, 85, 87, 93, 94, 95 and 98 did not provide information on deviations from the standard tax rate or the track of payment of this tax, while Companies 37, 42, 43, 44, 57, 84, 87 and 94 failed to provide information on their electricity supply or price. Companies 40 and 41 did not provide an English translation of essential information concerning their assets.

(54)

As for criterion 4 (Legal environment), Companies 76, 101 and 102 failed to demonstrate that they operated under bankruptcy and property laws that guarantee stability and legal certainty.

(55)

Company 70 failed to demonstrate that it met Criterion 5 (Currency exchange) since, according to the Notes to the accounts, the company used a fixed exchange rate for the foreign currency business, which is not in line with criterion 5 which stipulates that exchange rate conversions are carried out at the market rate.

(56)

Furthermore, the Companies 56, 71, 78 and 90 failed to provide evidence on the production of the product concerned, ownership of the main raw materials, ownership of the product concerned and control over the price setting. Their MET claims were therefore not subject to a detailed analysis.

(57)

The Commission informed the exporting producers concerned that none of them should be granted MET and invited them to provide comments. No comments were received.

(58)

Therefore, none of the seventy exporting producers concerned fulfilled all the conditions set out in Article 2(7)(c) of the basic Regulation and MET is, as a result, rejected for all of them.

(59)

Pursuant to Article 9(5) of the basic Regulation prior to its amendment, where Article 2(7)(a) of the same Regulation applies, an individual duty shall however be specified for the exporters which can demonstrate that they meet all criteria set out in Article 9(5) of the basic Regulation prior to its amendment.

(60)

As mentioned in recital 49 it is necessary to point out that the burden of proof lies with the producer wishing to claim IT under Article 9(5) of the basic Regulation prior to its amendment. To that end, the first subparagraph of Article 9(5) of the basic Regulation prior to its amendment provides that the claim submitted must be properly substantiated. Accordingly, there is no obligation on the Union institutions to prove that the exporter does not satisfy the conditions laid down for the recognition of such status. On the contrary, it is for the Union institutions to assess whether the evidence supplied by the exporter concerned is sufficient to show that the criteria laid down in Article 9(5) of the basic Regulation prior to its amendment are fulfilled in order to grant IT.

(61)

In accordance with Article 9(5) of the basic Regulation prior to its amendment, exporters should demonstrate on the basis of a properly substantiated claim that all five criteria listed therein are met so that they can be granted IT. Therefore, the Commission considered that the failure to meet at least one criterion was enough to reject the IT claim.

(62)

The five criteria are the following:

(63)

All seventy exporting producers concerned that requested MET also claimed IT in the event that they would not be granted MET. The Commission therefore assessed the IT claims of each exporting producer concerned, in addition to rejecting their MET claims as described in recitals 49 to 57.

(64)

Regarding criterion 1 (Repatriation of capital and profits), Companies 69, 77, 86 and 95 failed to prove that they were free to repatriate capital and profits and did thus not demonstrate that this criterion was fulfilled.

(65)

With regard to criterion 2 (Export sales and prices freely determined), Companies 33, 34, 35, 36, 37, 40, 41, 43, 44, 45, 46, 47, 48, 52, 53, 54, 58, 59, 60, 62, 64, 66, 67, 69, 72, 74, 75, 79, 80, 82, 84, 85, 88, 89, 92, 93, 94, 95, 96, 97, 98, 99 and 100 failed to prove that business decisions such as export prices and quantities, and conditions and terms of sale were freely determined in response to market signals, as the evidence analysed, such as articles of association or business licences, showed a limitation in output and/or on the sales quantities of footwear in specific markets.

(66)

As regards criterion 3 (Company — key management and shares — is sufficiently independent from State interference), Companies 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 49, 50, 51, 52, 53, 54, 55, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 72, 73, 74, 75, 76, 77, 80, 81, 82, 83, 84, 85, 86, 87, 91, 93, 94, 95, 96, 97, 98, 101 and 102 failed to demonstrate that business decisions were made sufficiently independent from State interference. Inter alia, no information or insufficient information was provided as regards the ownership structure of the company and how the decisions were taken. In addition, Companies 33, 34, 35, 36, 37, 38, 39, 42, 43, 44, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 70, 72, 74, 75, 76, 77, 80, 81, 83, 84, 85, 86,87, 91, 94, 95, 96, 97, 101, 102 did not provide sufficient information on how the land use right were transferred to these companies and at what terms and conditions. Companies 33, 34, 35, 40, 41, 51, 59, 62, 81 and 95 failed to provide an English translation of the relevant documents.

(67)

Finally, Company 70 failed to demonstrate that exchange rate conversions were carried out at the market rate. Therefore, it did not fulfil the requirements of criterion 4 (Market based exchange rate).

(68)

In addition, Companies 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 49, 50, 51, 52, 53, 54, 55, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 72, 73, 74, 75, 76, 77, 80, 81, 82, 83, 84, 85, 86, 87, 91, 93, 94, 95, 96, 97, 98, 101 and 102 also failed to prove that they fulfilled the requirements of criterion 5 (Circumvention) on the basis that no information was provided as to how decisions were taken within the company and whether the State exerted significant influence in this decision making of the company.

(69)

Furthermore, the Companies 56, 71, 78 and 90 failed to provide evidence on the production of the product concerned, ownership of the main raw materials, ownership of the product concerned and control over the price setting. Their IT claims were therefore not subject to a detailed analysis.

(70)

In light of the above, none of the seventy exporting producers concerned fulfilled the conditions set out in Article 9(5) of the basic Regulation prior to its amendment and IT was therefore denied to all of them. The Commission informed the exporting producers concerned accordingly and invited them to provide comments. No comments were received.

(71)

The residual anti-dumping duty applicable to China and Vietnam, of 16,5 % and 10 % respectively, should therefore be imposed for exports made by the seventy exporting producers concerned for the period of application of 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 on 30 December 2009 until 31 March 2011. The illegality identified in the judgments is that the Union institutions failed to establish whether the products produced by the exporting producers concerned should be subject to the residual duty or to an individual duty. 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 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.

(72)

Since the Commission concluded that the residual duty applicable to China and Vietnam respectively should be reimposed in respect of the exporting producers concerned at the same rate as originally imposed by the contested Regulation and Implementing Regulation (EU) No 1294/2009, no changes are required to Regulation (EC) No 388/2008. That latter regulation remains valid.

(73)

Following disclosure, the Commission received comments on behalf of (i) FESI and the Footwear Coalition (26) representing importers of footwear in the Union; (ii) C&J Clark International, Cortina, Deichmann and Wortmann (‘Clarks et al’), importers of footwear in the Union, (iii) Sino Pro Trading, and (iv) Schuhhaus SIEMES Einkaufs & Beteiligungs GmbH (‘SIEMES’), both importers of footwear from China and Vietnam.

(74)

FESI and the Footwear Coalition claimed that according to the Commission's open file a company named Fortune Footwear Co. Ltd submitted an MET/IT claim for the investigation period and therefore should not be listed in Annex III to this Regulation. However, there is no record of any MET/IT claim submitted by this company and FESI and the Footwear Coalition did not provide any further evidence that this company indeed submitted such claim. Therefore this claim is rejected.

(75)

FESI and the Footwear Coalition also claimed that a company named Foshan Nanhai Shyang Yuu/Hu Footwear was incorrectly listed in Annex III since this company had allegedly submitted an MET/IT claim. There is however no company named Foshan Nanhai Shyang Yuu/Hu Footwear listed in Annex III or any other Annex to this Regulation. A company with a similar name (Nanhai Shyang Ho Footwear Co. Ltd) is listed in Annex III but FESI and the Footwear Coalition did not provide any evidence that it is the same company as Foshan Nanhai Shyang Yuu/Hu Footwear. Therefore this claim is rejected. For the sake of completeness, it must also be noted thata company with a similar name, Foshan Nanhai Shyang Yuu Footwear Ltd, was assessed in Regulation (EU) 2016/2257. Likewise, there is, however, no evidence available that the latter is the same company as Foshan Nanhai Shyang Yuu/Hu Footwear.

(76)

FESI and the Footwear Coalition further claimed that Guangzhou Panyu Xintaiy Footwear Industry Commerce Co., Ltd submitted an MET/IT claim and that this claim should have been assessed by the Commission. It is clarified that the MET/IT claim of this company was indeed assessed. The company did not fulfil the criteria for MET and IT and its claim was therefore rejected. Consequently, the definitive duty should be reimposed in its regard and the company is therefore listed in Annex II to this Regulation. Therefore the claim of FESI and the Footwear Coalition in this regard is rejected.

(77)

FESI and the Footwear Coalition claimed in addition, that a company named Mega Power Union Co. Ltd submitted an MET/IT claim. However the Commission has no record of this MET/IT claim and FESI and the Footwear Coalition failed to provide any evidence that this company indeed submitted such claim. Therefore the claim of FESI and the Footwear Coalition in this regard is rejected.

(78)

Finally, FESI and the Footwear Coalition claimed that a group named ‘the Evervan group’ submitted an MET/IT claim and that the company group was therefore incorrectly listed in Annex III. However, while six companies listed in Annex III have names which contain the word ‘Evervan’ (Evervan, Evervan Deyang Footwear Co., Ltd, Evervan Golf, Evervan Qingyuan Footwear Co., Ltd, Evervan Qingyuan Vulcanized, Evervan Vietnam), FESI and the Footwear Coalition failed to provide any evidence that they were indeed part of a group. FESI and the Footwear Coalition also failed to provide evidence that this group as a whole indeed submitted an MET/IT claim. Therefore this claim is rejected. For the sake of completeness it must be noted that a company named ‘Guangzhou Evervan Footwear Co., Ltd’ submitted an MET/IT claims that was assessed and rejected in Regulation (EU) 2017/1982. There is no evidence available that would allow establishing a relationship with the other companies containing the word ‘Evervan’ listed in Annex III.

(79)

FESI and the Footwear Coalition claimed that the burden of proof when assessing MET/IT claims lies with the Commission, as the Chinese and Vietnamese exporting producers had discharged the burden by submitting the MET/IT claims in the original investigation. FESI and the Footwear Coalition also claimed that the same procedural rights should have been granted to the exporting producers concerned by the current implementation as those granted to the sampled exporting producers during the original investigation. FESI and the Footwear Coalition argued in particular, that only a desk analysis had been carried out rather than on-spot verification visits, and that the Chinese and Vietnamese exporting producers were not provided any opportunity to complement their MET/IT claim forms via deficiency letters.

(80)

FESI and the Footwear Coalition further argued that the exporting producers concerned by this implementation were not provided with the same procedural guarantees than those applied in standard anti-dumping investigations, but stricter standards were applied. FESI and the Footwear Coalition claimed that the Commission has not taken into account the time lag between the filing of the MET/IT request in the original investigation and the assessment of these claims. In addition, exporting producers during the original investigation were only provided 15 days in order to fill in the MET/IT requests, instead of the usual 21 days.

(81)

On this basis, FESI and the Footwear Coalition claimed that the fundamental legal principle of granting interested parties full opportunity to exercise their rights of defence laid down in Article 41 of the Charter of Fundamental Rights of the European Union and Article 6 of the Treaty on European Union, was not respected. On this basis, it was argued that by not giving the exporting producers the opportunity to complete incomplete information the Commission misused its powers and effectively reversed the burden of proof at the stage of the implementation.

(82)

Finally, FESI and the Footwear Coalition also claimed that this approach would be discriminatory vis-à-vis the Chinese and Vietnamese exporting producers that were sampled in the original investigation, but also other exporting producers in non-market economy countries that were subject to an anti-dumping investigation and filed MET/IT claims in that investigation. Thus, the Chinese and Vietnamese companies concerned by the current implementation should not be made subject to the same information provision threshold as applied in a normal 15 months investigation and should not be subject to stricter procedural standards.

(83)

FESI and the Footwear Coalition also claimed that the Commission applied de facto facts available within the meaning of Article 18(1) of the basic Regulation, while the Commission did not comply with the procedural rules set out in Article 18(4) of the basic Regulation.

(84)

The Commission recalls that according to the case-law, the burden of proof lies with the producer wishing to claim MET/IT 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 in Brosmann and Aokang, 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 Commission 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/IT (see recital 49). In that regard, it is recalled that there is no obligation for the Commission contained in the basic Regulation or in the case-law to give the possibility of the exporting producer to complement the MET/IT claim with all missing factual information. The Commission may base its assessment on the information submitted by the exporting producer.

(85)

In relation to the argument that only a desk analysis was carried out, the Commission notes that a desk analysis is a procedure whereby the requests for MET/IT are analysed on the basis of the documents submitted by the exporting producer. All MET/IT applications are subject to a desk analysis by the Commission. In addition, the Commission may decide to carry out on-site verification visits. On-site verifications visits are, however, not required, nor are they carried out for every application for MET/IT. On-site inspections, where they are carried out, usually have as their purpose to confirm a certain preliminary assessment made by the institutions and/or to check the veracity of the information provided by the exporting producer concerned. In other words, if the evidence submitted by the exporting producer clearly shows that MET/IT is not warranted, the additional and optional step of on-site inspections would typically not be organised. It is for the Commission to assess whether a verification visit is appropriate (27). The discretion to decide on the means of verifying the information in an MET/IT form lies with that institution. So, where, as in the present case, the Commission decides, on the basis of a desk analysis, that it was in possession of sufficient evidence to rule on an MET/IT claim, a verification visit is not necessary and cannot be required.

(86)

Concerning the claim that the rights of defence were not appropriately respected through the Commission's decision not to send deficiency letters, it is, first of all, recalled that rights of defence are individual rights, and that FESI and the Footwear Coalition cannot rely on a violation of an individual right of other companies. Second, the Commission contests the assertion that there is a practice by the Commission that significant exchange of information and a detailed deficiency completion process is carried out when use is made of desk analysis alone as opposed to desk analysis plus on-site verification. Indeed, FESI and the Footwear Coalition have not been able to provide evidence to the contrary.

(87)

FESI and the Footwear Coalition's comments on discrimination must equally be rejected as unfounded. It is recalled that the principle of equal treatment is violated where the Union institutions treat like cases differently, thereby placing some traders at a disadvantage by comparison to others, without such differentiation being justified by the existence of substantial objective differences (28). Yet, that is precisely not what the Commission is doing: by requiring the non-sampled Chinese and Vietnamese exporting producers to file MET/IT claims for reassessment, it intends to bring these formerly non-sampled exporting producers on the same footing as those who were sampled in the initial investigation. In addition, as the basic Regulation does not set out a minimum timeframe in this regard, so long as the timeframe for this purpose is reasonable and provides the parties with sufficient opportunity to assemble (or reassemble) the information needed while at the same time safeguarding their rights of defence, no discrimination occurs.

(88)

Insofar as it concerns the arguments regarding Article 18(1) of the basic Regulation, the Commission would like to note that, in the current case, it did not apply Article 18 of the basic Regulation. In fact, it accepted the information provided by the exporting producers concerned, did not reject this information, and based itsassessment on it. It follows that there was no need to follow the procedure under Article 18(4) of the basic Regulation. The procedure under Article 18(4) of the basic Regulation is followed in cases where the Commission intends to reject certain information provided by the interested party and to use facts available instead.

(89)

Another importer, namely Sino Pro Trading Limited, claimed that the Commission could not have had sufficient time to investigate the MET and IT claims of 600 companies in a period of only several months, alleging that the investigation carried out by the Commission could therefore not have prompted solid results. This party further alleged that the outcome of this investigation, i.e. that all MET/IT claims that were assessed were also rejected would indicate that the Commission's investigation was biased. On the other hand, this party also argued that insufficient MET/IT claims were investigated, namely only 70 out of the original 600. In addition, the same importer argued that given that the companies' assessments in recitals 49 to 72 were on an anonymous basis, the interested parties were prevented to link the findings made to a specific company. Finally, this importer alleged that its supplier although listed in Annex II to this Regulation had not been investigated, but that only a questionnaire would have been sent to this supplier with an insufficient delay to respond.

(90)

Regarding the above claims, the Commission first clarified that it was provided with names of 600 companies by the German or Dutch customs authorities or provided by the three importers mentioned in recital 29 as suppliers of footwear in China and Vietnam. As explained in recital 33, for most of these companies, the Commission had no record that they had submitted any MET or IT claim during the original investigation. For a substantial number of the remaining companies, the Commission had already assessed their MET and IT claim in previous implementation exercises. This procedure is explained in detail in recitals 34 to 36 and the relevant companies as well as the relevant legal acts are listed in Annexes IV to VI to this Regulation. The argument that the Commission allegedly investigated 600 companies in the present exercise is incorrect and must, accordingly, be rejected.

(91)

Furthermore, the Commission clarified, that, as mentioned in recital 17, the Commission resumed the present anti-dumping proceeding at the very point at which the illegality occurred and therefore examined whether market economy conditions prevailed for the exporting producers concerned for the period from 1 April 2004 to 31 March 2005, i.e. during the investigation period of the investigation which led to the imposition of the definitive anti-dumping duties in 2006. Therefore, the Commission did also not collect new information, but based its assessment on the MET/IT claim submitted by the relevant exporting producer during this investigation. The conclusions of these assessments were disclosed to the relevant exporting producers which were given a time period to comment. As set out in recital 70, none of the exporters concerned, including the supplier of Sino Pro Trading Ltd provided any comment to this disclosure.

(92)

Finally, it is highlighted that the information provided by the exporting producers in their MET/IT claims is considered confidential within the meaning of Article 19 of the basic Regulation. Therefore, in order to protect confidentiality, company names have been replaced by numbers.

(93)

All above claims had therefore to be rejected.

(94)

FESI and the Footwear Coalition argued that the Commission would be in breach of Article 266 TFEU, as this article does not provide it with the legal basis to reopen the investigation with respect to an expired measure. FESI and the Footwear Coalition also reiterated that Article 266 TFEU does not allow for the imposition of anti-dumping duties retroactively, referring to the ruling of the Court of Justice in case C-458/98P Industrie des poudres sphériques v Council (29).

(95)

In this regard, FESI and the Footwear Coalition argued that the anti-dumping proceeding concerning imports of footwear from China and Vietnam had been concluded on 31 March 2011 alongside the expiry of the measures. To this end, the Commission had issued a notice in the Official Journal of the European Union regarding the expiry of the duties on 16 March 2011 (30) (‘notice of expiry’), the Union industry had not claimed any continuation of dumping, nor would the judgment of the Court of Justice have invalidated the notice of expiry.

(96)

In addition, the same parties argued that there would also not be any powers in the basic Regulation which would allow the Commission to reopen the anti-dumping investigation.

(97)

In this context, FESI and the Footwear Coalition argued in addition that the resumption of the investigation and the assessment of the MET/IT claims filed by the Chinese and Vietnamese exporting producers concerned in the original investigation is in violation of the universal principle of prescription or limitation. This principle is laid down in the WTO Agreement and the basic Regulation that set a 5 year time limit for the duration of measures and in Articles 236(1) and 221(3) of the Community Customs Code that set a 3-years period for importers to claim the repayment of anti-dumping duties on the one hand and for national customs authorities to collect import duties and anti-dumping duties on the other hand (31). Article 266 of the TFEU does not allow from the deviation of this principle.

(98)

Finally, it was claimed that the Commission has not provided any reasoning or prior jurisprudence to support of the use of Article 266 TFEU as a legal basis for the reopening of the procedure.

(99)

Concerning the lack of any legal basis to reopen the investigation, the Commission recalls the case-law quoted above at recital 15, pursuant to which it may resume the investigation at the very point at which the illegality occurred. In any case, as Advocate General recently recalled, Article 266 TFEU both empowers the Commission to take action to restore legality in a manner consistent with the findings of a judgment declaring the measure in question invalid as well as obliges it to bring its conduct in line with the content of that judgment (32). The case in Commission v McBride and Others (33), on which FESI and the Footwear Coalition rely, does not apply in this context as in that case the rules conferring competence to adopt an act (in replacement of the one annulled) were no longer contained in EU law, whereas, in the present case, the legal basis has not disappeared and the only change has been that competence has been conferred on the Commission (34).

(100)

Insofar as it concerns legitimate expectations, it should be recalled that the legality of an anti-dumping Regulation has to be assessed in the light of the objective norms of Union law, and not of a decisional practice, even where such a practice exists (which is not the case here). Hence, the Commission's past practice, quod non, cannot create legitimate expectations: pursuant to settled case-law of the Court, legitimate expectations can only arise where the institutions have given specific assurances which would allow an interested party to lawfully deduce that the Union institutions would act in a certain way (35). Neither FESI nor the Footwear Coalition have attempted to demonstrate that such assurances were given in the present case. That is all the more the case because the previous practice referred to does not correspond to the factual and legal situation of the present case, and whose differences can be explained by factual and legal differences with the present case.

(101)

Those differences are as follows: 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 are therefore permitted to recalculate the precise duty rate for the exporting producers concerned.

(102)

In particular, in the present case, there was no need to seek additional information from interested parties. Rather, the Commission had to assess information that had been filed, but not assessed before the adoption of Regulation (EC) No 1472/2006. In any event, as noted in recital 99, previous practice in other cases does not constitute precise and unconditional assurance for the present case.

(103)

Finally, all parties against which the proceeding is directed, i.e. the exporting producers concerned, as well as the parties in the Court cases and the association representing one of those parties, have been informed by the disclosure of the relevant facts on the basis of which the Commission intends to adopt the present MET/IT assessment. Hence, their rights of defence are safeguarded. In that regard, it is to be noted in particular that unrelated importers do not enjoy, in an anti-dumping proceeding, rights of defence, as those proceedings are not directed against them.

(104)

As regards the claim that the measures in question expired on 31 March 2011, the Commission fails to see why the expiry of the measure would be of any relevance for the possibility for the Commission to adopt a new act to replace the annulled act following a judgment annulling the initial act. According to the case-law referred to in recital 15, the administrative procedure should be resumed at the point in time where the illegality occurred. The Commission reopened the investigation precisely at that point in order to assess whether MET/IT claims that were unassessed should have been granted, and, alongside, possibly a lower duty rate has been due (which, in turn would have allowed these concerned companies to request a repayment of those overpaid duties via their competent customs authority alongside interest (36)). A notice of expiry, while officially terminating the proceeding, cannot have the effect of denying those companies the right to have their MET/IT claims reviewed — a right that, after all, had been due during the investigation, as recognised by the Court in C&J Clark (37). The investigation was, accordingly, reopened on 17 March 2016, and will be closed by way of this Regulation in line with Article 9(4) of the basic Regulation.

(105)

FESI and the Footwear Coalition also submitted that the procedure adopted to reopen the investigation and retroactively impose the duty amounts to an abuse of powers by the Commission and violates the TFEU. FESI and the Footwear Coalition argue in this regard that the Commission does not have the authority to interfere with Article 236(1) of the Community Customs Code by preventing the repayment of the anti-dumping duties. They argued that it was up to the national customs authorities to draw the consequences of an invalidation of duties and that they would also be obliged to reimburse anti-dumping duties that had been declared invalid by the Court.

(106)

In this regard, FESI and the Footwear Coalition claimed that Article 14(3) of the basic Regulation does not allow the Commission to derogate from Article 236 of the Community Customs Code, as both legislations are of an equal legal order and the basic Regulation cannot be seen as a lex specialis of the Community Customs Code.

(107)

Furthermore, the same parties continued Article 14(3) of the basic Regulation does not refer to Article 236 of the Community Customs Code and only states that special provisions may be adopted by the Commission, but no derogations to the Community Customs Code.

(108)

In response thereto, it is important to underline that Article 14(1) of the basic Regulation does not automatically render applicable the rules governing Union customs legislation to the imposition of the individual anti-dumping duties (38). Rather, Article 14(3) of the basic Regulation gives the Union's institutions the right to transpose and make applicable, where necessary and useful, the rules governing the Union's customs legislation (39).

(109)

This transposition does not require a full application of all the provisions of the Union's customs legislation. Article 14(3) of the basic Regulation explicitly envisages special provisions with regard to the common definition of the concept of origin, a good example of where deviation from the provisions of the Union's customs legislation occurs. It is on that basis that the Commission made use of the powers arising from Article 14(3) of the basic Regulation and required that national customs authorities refrain temporarily from any reimbursement. This does not challenge the exclusive competence that national customs authorities have in relation to disputes concerning customs debt: the decision-making authority remains with the customs authorities of the Member States. The Member States customs authorities still decide, on the basis of the conclusions reached by the Commission vis-à-vis the MET and IT claims, whether reimbursement should be granted or not.

(110)

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'sown 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.

(111)

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 reimposed 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.

(112)

SIEMES, one of the importers providing comments to the disclosure, also claimed that the Commission Implementing Regulation lacks appropriate reasoning, which is in violation of Article 296 TFEU, however, without further explaining this claim in more detail. In support of its claim this party referred to the judgment in T-310/12 Yuanping Changyuan Chemicals v Council (40).

(113)

The Commission considers that the extensive legal reasoning provided in the general disclosure document and in this Regulation, including the reference to the legal bases for the present Regulation, duly motivates the latter.

(114)

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.

(115)

Regarding legitimate expectations of interested parties that anti-dumping measures expired and that the investigation will not be reopened anymore, reference is made to recital 104, where these claims had been addressed in detail.

(116)

Regarding the legitimate expectations of Chinese and Vietnamese exporting producers not to have their MET/IT claims reviewed, reference is made to recital 99, where this has equally been addressed in light of the case-law of the Court on this matter.

(117)

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.

(118)

Regarding the claim on discrimination, the Commission recalls first of all the requirements for discrimination, as set out in recital 87.

(119)

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.

(120)

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 (41).

(121)

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.

(122)

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

(123)

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 reimpose 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 reimposition 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.

(124)

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.

(125)

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) 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 (also called ‘Omnibus I Regulation’) (42) 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 Council Regulation (EC) No 384/96 of 22 December 1995 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.

(126)

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.

(127)

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.

(128)

The contested regulation was adopted in 2006. The relevant legislation applicable to this proceeding is Regulation (EU) 2016/1036. Therefore, this claim is rejected.

(129)

With regard to Clarks et al, it is first claimed that the Commission had no legal basis to investigate the MET/IT claims submitted by exporting producers in the original investigation. Clarks et al argued that the proceeding, which was closed by the expiry of the measures on 31 March 2011, was not invalidated by the judgment in Joined Cases C-659/13 and C-34/14, and that therefore, it cannot be reopened.

(130)

In reply to this comment, the Commission refers to the explanation provided in recitals 99 to 104.

(131)

Second, Clarks et al claimed that the current proceeding is in breach of the principles of non-retroactivity and legal certainty enshrined in Article 10 of the basic Regulation. In addition, SIEMES, another importer of footwear, similarly, claimed that there would be no legal basis for imposition of anti-dumping duties on a retroactive basis and referred to case law, i.e. Case C-458/98 P, Industrie des poudres sphériques v Council (43), and to previous practice of the Commission in this regard.

(132)

As to the claim concerning retroactivity based on Article 10 of the basic Regulation and Article 10 of the WTO Anti-Dumping Agreement (‘WTO ADA’), Article 10(1) of the basic Regulation, which follows the text of Article 10.1 of the WTO ADA, stipulates that provisional and definitive anti-dumping duties shall only be applied to products which enter free circulation after the time when the measures taken pursuant to Article 7(1) or 9(4) of the basic Regulation, as the case may be, enter 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. Retroactivity in the sense of Article 10(1) of the basic Regulation, however, refers only to a situation where the goods were introduced into free circulation before measures were introduced, as can be seen from the very text of that provision as well as from the exception for which Article 10(4) of the basic Regulation provides.

(133)

The Commission also observes that there is neither a violation of the principle of retroactivity, nor a violation of legal certainty and legitimate expectations involved in the present case.

(134)

As to retroactivity, the case-law of the Court distinguishes, when assessing whether a measure is retroactive, between the application of a new rule to a situation that has become definitive (also referred to as an existing or definitively established legal situation), 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).

(135)

In the present case, the situation of the imports of the products concerned that occurred during the period of application of 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, importers of footwear 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 became definitive.

(136)

This Regulation constitutes immediate application to the future effects of a situation that is ongoing: The duties on footwear have been levied by national customs authorities. As a result of the requests for reimbursement, which have not been decided in a definitive way, they constitute an ongoing situation. This Regulation sets out the duty rate applicable to those imports, and hence regulates the future effects of an ongoing situation.

(137)

In any event, even if there were retroactivity in the sense of Union law, quod non, such retroactivity would be justified, for the following reason:

(138)

The substantive rules of Union law may apply to 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 them. In particular, in case C-337/88 Società agricola fattoria alimantare (SAFA), it was held that: ‘[A]lthough in general theprinciple 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’ (44).

(139)

In the present case, the purpose is to comply with the obligation of the Commission pursuant to Article 266 TFEU. Since, in the judgments referred to in recital 12, the Court only found an illegality with regard to the determination of the applicable duty rate, and not with regard to the imposition of the measures themselves (that is, with regard to the finding of dumping, injury, causation 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.

(140)

Third, Clarks et al claimed that it would be discriminatory and in breach of Article 266 TFEU to reimpose an anti-dumping duty on the seventy exporting producers concerned, given that no anti-dumping duty was reimposed following the Brosmann and Aokang judgments.

(141)

This claim is unfounded. Importers that have imported from Brosman and the other four exporting producers concerned by the judgments in cases C-247/10 P and C-249/10 P, are in a different factual and legal situation, because their exporting producers decided to challenge the contested Regulation and because they were reimbursed their duties, so that they are protected by Article 221(3) of the Community Customs Code. No such challenge and no such reimbursement have taken place for others. See, in this regard, also recitals 118 to 122.

(142)

Fourth, Clarks et al alleged that there were several procedural irregularities resulting from this investigation. In the first place, they argued that the exporting producers concerned may no longer be in a position to provide meaningful comments or adduce additional evidence to support their MET/IT claims that they made several years ago. For example, the companies may no longer exist or relevant documents may no longer be available.

(143)

In addition, Clarks et al argued that unlike during the original investigation, the Commission's measures would de facto and de jure affect only importers, whereas they have no means of providing any meaningful input and cannot require their suppliers to cooperate with the Commission.

(144)

The Commission observes that nothing in the basic Regulation requires the Commission to give exporting companies claiming MET/IT the possibility to complete lacking factual information. In fact, and as set out in recital 88 the burden of proof lies with the producer wishing to claim MET/IT under Article 2(7)(b) of the basic Regulation. The right to be heard concerns the assessment of those facts, but does not comprise the right to remedy deficient information. Otherwise, the exporting producer could prolong indefinitely the assessment, by providing information piece by piece.

(145)

In that regard, it is recalled that there is no obligation, for the Commission, to request the exporting producer to complement the MET/IT claim. As mentioned in recital 84, the Commission may base their assessment on the information submitted by the exporting producer. In any event, the exporting producers concerned have not contested the assessment of their MET/IT 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/IT 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/IT claim is, that argument is rejected.

(146)

Regarding the claim that an importer would have no means to provide any meaningful input, the Commission observes the following: first, importers do not enjoy rights of defence, as the anti-dumping measure is not directed against them, but against the exporting producers. Second, importers had the opportunity to comment on that point already during the administrative procedure prior to the adoption of the contested Regulation. Third, if importers thought that there was an irregularity in that regard, they had to take the necessary contractual arrangements with their suppliers to ensure to dispose of the necessary documentation. Therefore, the claim has to be rejected.

(147)

Fifth, Clarks et al argued that the Commission failed to examine whether the imposition of the anti-dumping duties would be in the Union interest and argued that the measures would be against the Union interest because (i) the measures already had their intended effect when first imposed; (ii) the measures would not cause additional benefit for the Union industry; (iii) the measures would not affect the exporting producers and (iv) the measures would impose an important cost on the importers in the Union.

(148)

The present case only concerns the MET/IT requests, because this is the only point on which a legal error has been identified by the Union Courts. For Union interest, the assessment in Regulation (EC) No 1472/2006 remains fully valid. Furthermore, the present measure is justified in order to protect the financial interest of the Union.

(149)

Sixth, Clarks et al claimed that the anti-dumping duty, if reimposed, could no longer be collected because of the statute of limitations of Article 221(3) of the Community Customs Code (now Article 103(1) of the Union Customs Code) had expired. According to Clarks et all, this situation would constitute an abuse of power by the Commission.

(150)

The Commission recalls that according to Article 221(3) of the Community Customs Code/103(1) of the Union Customs Code, the statute of limitations does not apply where an appeal pursuant to Article 243 of the Community Customs Code/Article 44(2) of the Union Customs Code is lodged, as in all the present cases, which concern appeals on the basis of Article 236 of the Community Customs Code/Article 119 of the Union Customs Code. An appeal within the meaning of Article 103(3) of the Union Customs Code, pursuant to the clarification in Article 44(2) of the same regulation, extends from the initial challenge to the decision by the national customs authorities imposing the duties up to the final judgment rendered by the national court, including, where necessary, a reference for a preliminary ruling. The three year period is consequently stayed from the date the challenge is filed.

(151)

Lastly, Clarks et al claimed that, following the expiry of paragraph 15(a)(ii) of China's WTO Protocol of Accession on 11 December 2016, the Commission can no longer rely on the methodology used to determine normal value for Chinese exporters in the original investigation (i.e. the analogue country methodology under Article 2(7)(a) of the basic Regulation).

(152)

The contested regulation was adopted in 2006. The relevant legislation applicable to this proceeding is the Regulation (EU) 2016/1036 of the European Parliament and the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union. Therefore, this claim is rejected.

(153)

In addition, SIEMES argued that the length of the procedure in relation to its ongoing reimbursement request of anti-dumping duties before the German customs authorities violates the right of good administration under Article 41 of the Charter of Fundamental Rights of the European Union. First, the Commission notes that decisions over repayment of the anti-dumping duties fall within the competence of the national customs authorities of the Member States. Second, the Commission understood from the information provided to it that SIEMES' reimbursement request of 19 March 2012 was rejected because the judgment pursuant to which it lodged its reimbursement request was limited to Brosmann and Aokang. The judgment had no effect vis-à-vis other exporting producers in China and Vietnam. Only on 4 February 2016 did the Court of Justice declare, in Joined Cases C-659/13 C & J Clark International Limited and C-34/14 Puma SE, the contested Regulation invalid in so far as it concerned all exporting producers of the product concerned (see recital 12). It is only at this point that SIEMES was concerned by a judgment of the Court, as duly notified to it by the German customs authorities in their letter of 7 September 2016. The Commission implemented the judgment vis-à-vis a number of exporting producers as described in recitals 18 to 38, as well as vis-à-vis the importers requesting reimbursement claims before the German customs authorities. In particular, as regards imports subject to reimbursement claims notified to the Commission by the German customs authorities in accordance with Article 1 of Implementing Regulation (EU) 2016/223 (reference is made to recital 30), the Commission fully respected the eight month time limit for implementation set out in Article 1(2) of that Regulation. The Commission, accordingly, disagreed with the argument that this procedure violated the principle of good administration. This claim had therefore to be rejected.

(154)

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 reimposed for the period of application of the contested Regulation.

(155)

As mentioned in recital 28, the Commission suspended the assessment of the companies listed in Annex III of Commission Implementing Regulation (EU) 2017/423 until the importer claiming reimbursement from national customs authorities has informed the Commission of the names and addresses of the exporting producer(s) from which the relevant traders purchased footwear, or where no reply is received within that period of time, the expiry of the deadline set by the Commission for providing that information.

(156)

In Article 3 of Regulation (EU) 2017/423 the Commission also instructed the relevant national customs authorities not to reimburse the customs duties collected until the Commission has finalised the assessment of the relevant MET/IT claims.

(157)

As a consequence, as mentioned in recital 29, Pentland Brands Ltd, Puma UK Ltd and Deichmann Shoes UK Ltd came forward and identified their suppliers. The Commission analysed the MET/IT claims of the suppliers identified in the current Regulation. It follows that the Commission finalised the assessment of the situation of the companies listed in Annex III of Regulation (EU) 2017/423. As a result, for companies listed in Annex III of Commission Implementing Regulation (EU) 2017/423, the Commission has no record that these companies submitted any MET/IT claim form in the original investigation. The relevant reimbursement claim of the importers should therefore not be granted because the contested Regulation has not been annulled as far as they are concerned. For ease of reference, the Commission has reproduced Annex III of Regulation (EU) 2017/423 as Annex VI to this Regulation.

(158)

The exporting producers concerned, the importers that were concerned by notification of the customs authorities of Germany and the Netherlands, the importers that came forward providing the names and addresses of their respective suppliers in China and/or Vietnam as well as all other parties that came forward were informed of the essential facts and considerations on the basis of which it was intended to recommend the reimposition of the definitive anti-dumping duty on exports of the 70 exporting producers concerned. They were granted a period within which to make representations subsequent to disclosure.

(159)

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