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).

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.

None of the exporting producers concerned was able to demonstrate that it met criteria 1 (Business decisions). More specifically, the information provided by each of the three exporting producers indicated that business decision were not made in response to market signals reflecting supply and demand without significant State interference.

As concerns criterion 2 (Accounting), two companies (Companies 1 and 2) did not meet this criterion. The accounts of both companies showed deficiencies and were not in compliance with international accounting standards. Thus, certain expenses were wrongly classified as an asset while they should have been booked as an expense in the period concerned (Company 2), while in another case, the auditors notes observed that the financial accounts are not in accordance with accounting rules and principles in countries outside the country concerned. Regarding Company 3, it submitted one set of basic accounting records which were independently audited in line with international accounting standards.

Regarding criterion 3 (Assets and ‘carry-over’), none of the three exporting producers concerned could show that no distortions are carried over from the former non-market economy system. None of the exporting producers provided complete information (e.g. evidence of the rental or lease contract, information concerning terms, prices and payments or capital verification reports) to demonstrate that no distortions were carried over from the non-market economy system.

For the reasons set out in recital (32), following the failure to meet criterion 1 and criterion 3 by any of the exporting producers and criterion 2 by two of the exporting producers, criteria 4 (Bankruptcy and property laws) and 5 (Exchange rate conversions) were not assessed.

On the basis of the above, the Commission concluded that none of the three exporting producers concerned should be granted MET and informed the exporting producers concerned accordingly, which were invited to provide comments. No comments were received from any of the three exporting producers concerned.

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

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.

As mentioned in recital (32) 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) 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.

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 in this Article 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.

1. (a)

   in the case of wholly or partly foreign owned firms or joint ventures, exporters are free to repatriate capital and profits;

2. (b)

   export prices and quantities, and conditions and terms of sale are freely determined;

3. (c)

   the majority of the shares belong to private persons; state officials appearing on the board of directors or holding key management positions shall either be in minority or it must be demonstrated that the company is nonetheless sufficiently independent from State interference;

4. (d)

   exchange rate conversions are carried out at the market rate; and

5. (e)

   State interference is not such as to permit circumvention of measures if individual exporters are given different rates of duty.

All three exporting producers concerned that requested MET also claimed IT in the event that they would not be granted MET.

None of the three exporting producers concerned was able to demonstrate that they met Criterion 2 (Export sales and prices freely determined). More specifically, for two of the exporting producers concerned (Companies 1 and 2) the business license set a limitation to sales quantities on specific markets, while for the third company (Company 3) the Articles of Association stipulated a limitation in output as well as a limitation to sales quantities on specific markets. Therefore they failed to demonstrate that business decisions, such as export quantities are freely determined and made in response to market signals reflecting supply and demand.

As regards Criterion 3 (Company — key management and shares — is sufficiently independent from State interference), Company 1 could not show that it is subject to the payment of a rent for the use of land, while the financial statement indicated that it was exempted from such payments for a certain period. Regarding Company 2, it provided contradictory information and the contribution of the shareholder regarding the factory, infrastructure and the initial expenses related to land were unclear. Finally, Company 3 did not provide any evidence on the rental contract for the land and no information about terms, prices and payments. In addition, for all three companies, it was established that there were limitations in their business scope. On this basis, none of the three exporting producers concerned showed that it was sufficiently independent from State interference.

Therefore, none of the three exporting producers concerned fulfilled the conditions set out in Article 9(5) of the basic Regulation prior to its amendment and the Commission informed the exporting producers concerned accordingly, which were invited to provide comments. No comments were received from any of the three exporting producers concerned and IT was, as a result, denied to all of them.

The residual anti-dumping duty applicable to China should therefore be imposed for exports made by General Footwear Ltd and the residual duty applicable for Vietnam for exports made by Diamond Vietnam Co. Ltd and Ty Hung Footgearmex/Footwear Co. Ltd (‘Ty Hung Co. Ltd’) for the period of application of Council Regulation (EC) No 1472/2006. The period of application of that Regulation was initially from 7 October 2006 until 7 October 2008. Following the initiation of an expiry review, it was prolonged 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 paying any anti-dumping duty. A new act remedying the illegality identified by the Court therefore only needs to reassess the applicable anti-dumping duty rate, and not the measures themselves.

Since it is concluded that the residual duty 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 Regulation remains valid.

FESI claimed that there were a number of procedural errors in the current implementation. They pointed to the fact that the MET claims of the three Chinese and Vietnamese exporting producers concerned were already examined and disclosed prior to the judgment of the Court of Justice in the Joined Cases C-659/13 C & J Clark International Limited and C-34/14 Puma SE, i.e. on 3 December 2015, as well as the Commission's intention to reimpose a definitive anti-dumping duty on imports of footwear of 16,5 % and 10 % respectively. These assessments would therefore have been carried out without legal basis and were pre-empting the up-coming judgment of the Court of Justice. In conclusion, FESI argued that the Commission violated the basic legal framework of the EU and thus exercised an abuse of its powers.

The Commission does not agree with the above claims as it only prepared the implementation of a possible future judgment. Such preparation was to ensure sound administration, for the following reasons: First, it is uncontested that the Commission ought to have examined the MET/IT requests. The only issue that was at stake in the Court proceedings still pending at that time was whether an unrelated importer such as Puma and Timberland can rely on that illegality. As a result of that yes/no binary choice, the Commission could exceptionally prepare for the event of a negative judgment on this question. Second, swift implementation was necessary in order to enable national customs authorities to deal quickly with pending requests for reimbursement, and to provide legal certainty for all operators. Any influence on the Court's judgment was excluded, as that judgment concerned a different subject-matter (namely whether importers can rely on the right to have MET/IT claims assessed vested in exporting producers).

Consequently, all the claims regarding procedural irregularities were rejected.

FESI claimed that there was no legal basis for the current implementation. In particular FESI claimed that Article 266 TFEU is not applicable on the grounds that the definitive measures on footwear expired on 31 March 2011 and that there are therefore no continued effects ensuing from the illegality of these measures. FESI argued that Article 266 TFEU is not intended to correct retroactively illegalities to expired measures. This view would be reinforced by Articles 263 and 265 TFEU which set time limits for bringing actions against illegal acts and failure to act on the part of the Union Institutions. FESI further claimed that the current approach does not have any precedents and that the Commission did also not provide any reasoning or prior jurisprudence which would support its interpretation of Article 266 TFEU.

FESI also argued that in this case the investigation cannot be resumed at the very point where the illegality occurred under Article 266 TFEU because the Court of Justice did not merely establish a lack of reasoning but the illegality concerned a core legal provision of the basic Regulation affecting the entire assessment of dumping related to the exporting producers concerned.

FESI claimed further that the retroactive correction of expired measures violates the principle of protection of legitimate expectations. FESI argued that first, parties 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. Secondly, the very fact that during the original investigation MET claims were not investigated within the 3 months deadline provided legal certainty to the Vietnamese and Chinese exporting producers that their MET claims will indeed not be reviewed. In conclusion, the parties claimed that given the long time periods involved, the resumption of the investigation violated the universal principle of prescription or limitation which applies in all legal contexts.

FESI further argued that neither Article 266 TFEU, nor the basic Regulation permit the retroactive reimposition of the definitive duty of 10 % and 16,5 % respectively to imports of the Vietnamese and Chinese exporting producers concerned.

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) above, the administrative procedure should be resumed at the point in time where the illegality occurred.

The anti-dumping proceedings are hence, as a result of the annulment of the act concluding the proceedings, still open. The Commission is under an obligation to close those proceedings; Article 9 of the basic Regulation provides that an investigation has to be closed by an act of the Commission.

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 measures and definitive anti-dumping duties shall only be applied to products which enter free circulation after the time when the decision taken pursuant to Article 7(1) or 9(4) of the basic Regulation, as the case may be, enters into force. In the present case, the anti-dumping duties in question are only applied to products which entered into free circulation after the provisional and the contested (definitive) Regulation taken pursuant to 7(1) and 9(4) of the basic Regulation respectively had entered into force. 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.

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

The present 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. The present Regulation sets out the duty rate applicable to those imports, and hence regulates the future effects of an ongoing situation.

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

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) above, the Court only found an illegality with regards to the determination of the applicable duty rate, and not with regards to the imposition of the measures themselves (that is, with regards to the finding of dumping, injury and Union interest), the exporting producers concerned could not have legitimately expected that no definitive anti-dumping measures would be imposed. Consequently, that imposition, even if it was retroactive, quod non, cannot be construed as breaching legitimate expectations.

Rather, economic operators were fully aware, when importing footwear from the PRC and Vietnam, that those imports were subject to a duty. They took that duty into account when setting sales prices and assessing economic risks. They therefore did not acquire legal certainty or legitimate expectations that the imports would be free of a duty, and usually passed on the duty to their customers. It is therefore in the Union interest to set now the applicable duty rate, rather than providing a windfall gain to the importers concerned, which would be enriched without due cause.

There is hence neither violation of the principles of prescription, legal certainty and legitimate expectations, nor of the provisions of the basic Regulation and the WTO ADA.

The above case-law has not been overturned by the Brosmann and Aokang judgments referred to in recital (6) above. In the Brosmann and Aokang judgments, the Court relies on the obligation for the Commission to carry out the assessment in three months in order to show that the obligation of that assessment exists independently of whether the Commission applies sampling or not. The Court does not pronounce itself on the question what legal consequence it has if the Commission concludes the MET assessment at a later stage of the investigation. The Court only rules that the Institutions could not completely ignore MET claims, but had to assess them at the latest when imposing definitive measures. The judgments confirm the case-law quoted in the preceding recital

In the present case, the exporting producers concerned have not shown that, had the Commission carried out the MET assessment within three months after the initiation of the anti-dumping procedure in 2005, the Council might have adopted a different Regulation more favourable to their interests than the contested Regulation. The claim on time-bar for the assessment of the MET claim is therefore rejected.

FESI, referring to the judgment of the General Court in Case T-2/95 IPS v Council, pointed to the formal difference between an ‘investigation’ and a ‘proceeding’ and argued that once a proceeding is terminated, like in the current case, it cannot be resumed anymore.

The Commission fails to see any material difference between the terms ‘investigation’ and ‘proceeding’ in the context of the implementation of the judgments at stake. The judgments concern an irregularity with regard to a specific investigation as part of a proceeding which the Commission is under an obligation to remedy as explained in recitals (23) to (31) above. In any event, the judgment in case T-2/95 has to be read in the light of the judgment on appeal in that case.

FESI also claimed that Article 266 TFEU does not allow for a partial implementation of a judgment of the Court of Justice and in the current case the reversal of the burden of proof. Thus, FESI claimed that the Commission wrongly assessed only the MET/IT requests of those exporting producers that were suppliers of importers that filed reimbursements claims. FESI based its claim on the understanding that the effect of the judgment of the Court of Justice in the Joined Cases C-659/13 C & J Clark International Limited and C-34/14 Puma SE is erga omnes and that it cannot be excluded that the results of the current assessment of the MET/IT claims has also an impact on the residual duty which is applicable to all Chinese and Vietnamese exporting producers. FESI therefore claimed that the Commission should have assessed all MET/IT claims that were provided during the original investigation.

Moreover, FESI disagreed that the burden of proof lies with the producer wishing to claim MET/IT arguing that producers had discharged this burden of proof in 2005 by filing the MET/IT requests during the original investigation. FESI also disagreed that the judgment of the Court of Justice in the Joined Cases C-659/13 C & J Clark International Limited and C-34/14 Puma SE can be implemented by simply assessing the MET/IT requests submitted by the non-sampled exporting producers as the Court of Justice did not specifically outline that the invalidation found is indeed limited to this aspect.

The Commission considers that the implementation of the judgment is only necessary for those exporting producers for which not all import transactions have become definitive. Indeed, once the three year prescription period foreseen in Article 236 of the Community Customs Code has expired, the duty has become definitive, as confirmed in the judgments. Any impact on the residual duty is excluded, because the MET/IT claim for the companies in the sample has been assessed, and the fact of granting MET/IT to one of the companies outside the sample does not affect the residual duty rate.

The burden of proof is not limited to filing a request. It concerns the content of the request, which has to demonstrate that all conditions for MET/IT are met.

The only illegality identified in the judgments is the lack of assessment of the MET/IT claims. Therefore, these claims are rejected.

FESI also argued that reimposing the definitive anti-dumping measures on imports from the Chinese and Vietnamese exporting producers concerned by the current implementation constitutes (i) a discrimination of 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) above 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.

This discriminatory treatment was claimed to reflect a lack of uniform interpretation and application of EU law which violates the fundamental right of an effective judicial protection.

Regarding the alleged use of different legal regimes, the Commission considers that that follows from the differences in the transition rules contained in the three Regulations amending the basic Regulation at stake.

First, Regulation (EU) No 765/2012 (the so-called ‘Fasteners amendment’ dealing with IT) provided in its Article 2 that ‘it shall apply to all investigations initiated pursuant to Regulation (EC) No 1225/2009 following the entry into force of this Regulation’. As the present investigation was initiated prior to that date, the amendments of that Regulation to the basic Regulation do not apply in the present case.

Second, Regulation (EU) No 1168/2012 (the so-called ‘Brosmann amendment’ dealing with MET) provided in its Article 2 that ‘this Regulation shall apply to all new and to all pending investigations as from 15 December 2012.’ Therefore, if the Commission had adopted a strict approach, it would not even have been necessary to assess the MET claims of the non-sampled companies any more, as they had lost the right to an MET assessment on 15 December 2012. However, the Commission considers that such treatment would be difficult to reconcile with its obligation to implement the judgments. Regulation (EU) No 1168/2012 does also not seem to introduce a complete ban on analysing MET claims outside the sample, as it authorises such examination in case of individual treatment. By analogy, that derogation could be said to apply in the present case. In the alternative, the Commission considers that the outcome of applying Regulation (EU) No 1168/2012 to the present case would lead to the same outcome, as all MET claims would be automatically rejected, without going through the assessment.

Regarding the retroactive imposition of the definitive anti-dumping duties reference is made to the considerations outlined above in recitals (62) to (69) where these claims were already addressed extensively.

Regarding the claim on discrimination, the Commission observes that exporting producers and certain importers concerned by the present Regulation enjoy judicial protection in the Union courts against the present Regulation. Other importers enjoy such protection via the national courts and tribunals, which act as judges of ordinary Union law.

The claim of discrimination is equally unfounded. Importers that have imported from Brosmann and the other four exporting producers are in a different factual and legal situation, because their exporting producers decided to challenge the contested Regulation and because they had the paid duties reimbursed, 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. The Commission started to prepare the implementation for the Chinese and Vietnamese exporting producers of Clark, Puma and Timberland; all other non-sampled exporting producers from the PRC and Vietnam and their importers will be treated in the same fashion at a later stage pursuant to the procedure set out in the present Regulation.

FESI also claimed that Article 14 of the basic Regulation cannot serve as a legal basis to interfere in the application of Article 236 of the Community Customs Code, and the operation of Article 236 of the Community Customs Code is independent from any decision taken under the basic Regulation or the Commission's obligations under Article 266 TFEU.

In this context FESI argued that the application of Article 236 of the Community Customs Code falls within the exclusive competence of the national customs authorities under which the latter are obliged to reimburse duties paid that were not legally owed. FESI further argued that Article 236 of the Community Customs Code cannot be made subject to or subsidiary to Article 14 of the basic Regulation because both are secondary legislation and therefore none supersedes the other. In addition, the scope of Article 14 of the basic Regulation concerns special provisions that cover investigations and procedures under the basic Regulation and is not applicable to any other legal instrument such as the Community Customs Code.

The Commission observes that the Community Customs Code does not apply automatically to the imposition of anti-dumping duties, but only by virtue of a reference in the Regulation imposing anti-dumping duties. Pursuant to Article 14 of the basic Regulation, the Commission may decide not to apply certain provisions of that Code, and instead create special rules. Because the Community Customs Code only applies on the basis of a reference in the Council and Commission Implementing Regulations, it does not have, vis-à-vis Article 14 of the basic Regulation, the same rank in the hierarchy of norms, but is subordinated and may be rendered inapplicable or applicable in a different manner. Therefore, this argument was also rejected.

FESI further 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

The alleged lack of adequate reasoning concerned, in particular, the following issues: (i) the lack of legal basis and reasoning permitting the Commission to partially implement the judgments at stake, by merely assessing MET/IT claims of those exporting producers where reimbursement claims had been filed by the importers; (ii) the lack of legal basis for reopening the investigation and for reassessing the MET/IT claims of the three Chinese and Vietnamese exporting producers concerned, after measures expired in March 2011; (iii) lack of legal basis to instruct the EU customs authorities not to repay the anti-dumping duties subject to the Court case; (iv) the lack of legal basis to derogate from the principle of non-retroactivity; (v) lack of an explanation regarding the application of the appropriate legal instrument for assessing the MET and IT claims and for proposing the reimposition of anti-dumping duties; (vi) the lack of response to the legal arguments provided by these parties following the disclosure of the Commission concerning the assessment of the MET claims of the Chinese and Vietnamese exporting producers concerned of 15 December 2015, and 6 and 16 June 2016 respectively.

Regarding the partial implementation of the judgments, the question whether and to what extent the Institutions have to implement a judgment depends on the concrete content of the judgment. In particular, whether or not it is possible to confirm the imposition of duties on imports that took place prior to the judgment depends on whether the finding of injurious dumping as such, or only the calculation of the precise duty rate are affected by the illegality identified in the judgment. In the latter situation, which is pertinent here, there is no justification for reimbursing all duties. Rather, it suffices to determine the correct duty rate, and to reimburse any possible difference (whereas it would not be possible to increase the duty rate, as the increased part would constitute retroactive imposition).

Past annulments to which interested parties refer have concerned the finding of dumping, injury and Union interest (either with regard to the establishment of facts, with regard to the assessment of the facts, or with regard to rights of defence).

Those annulments have either been partial or complete.

The present case is different from past (partial or complete) annulments in so far as it does not concern the very presence of dumping, injury and Union interest, but merely the choice of the appropriate duty rate. What is at dispute is therefore not the very principle of imposing a duty, but only the precise amount (in other words: a modality) of the duty. The adjustment, if any, can only be downwards.

Contrary to the cases of partial annulment in the past discussed above in recital (103), the Court has not been able to decide as to whether a new (reduced) duty rate had to be granted, because that decision requires first an assessment of the MET/IT claim. That task of assessing the MET/IT claim falls within the prerogatives of the Commission. Hence, the Court cannot carry out this part of the investigation at the place of the Commission without overstepping its competences.

Contrary to cases of complete annulment in the past, the findings on dumping, injury, causality and Union interest have not been annulled. Therefore, dumping, injury, causality and Union interest have been validly established at the time of adoption of Council Regulation (EC) No 1472/2006. Therefore, there is no reason to limit the reimposition of definitive anti-dumping duties to the future.

The present Regulation does not therefore in any event depart from the decisional practice of the Institutions, even if it was relevant.

Concerning the lack of any legal basis to re-open 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.

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 therefore considered it more appropriate to adopt new measures for the future.

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

Regarding the alleged derogation from the principle of non-retroactivity, reference is made to the recitals (62) to (69) where this was addressed extensively.

Regarding the alleged application of two different legal regimes in the current implementation reference is made to recitals (87) to (90) where this was addressed extensively.

Finally, concerning the comments provided by FESI following the disclosure of the MET assessment of the Chinese and Vietnamese exporting producers concerned, these have been addressed fully by the Commission in the current Regulation in recitals (32) and (39) above.

FESI 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 argued in particular, that the Chinese and Vietnamese exporting producers were not provided any opportunity to complement their MET/IT claim forms via deficiency letters and that only desk analysis had been carried out rather than on-spot verification visits. In addition, FESI added that the Commission did not ensure the due delivery of the disclosure of the assessment of MET/IT requests to the exporting producers concerned.

FESI 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 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.

Also, FESI 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.

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 (32)). The right to be heard concerns the opportunity of the party to express its views and the Commission to consider these views.

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 the preceding recital, the Commission may base its 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 Commission 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 has to be rejected.

Regarding Article 18(1) of the basic Regulation, in the current case the Commission accepted the information provided by the exporting producers concerned, it did not reject this information and based its assessment on it. Therefore, the Commission did not apply Article 18. 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) is followed in cases where the Commission intends to reject certain information provided by the interested party and to use facts available instead.