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 judgements of 4 March 2010 in Case T-401/06 Brosmann Footwear (HK) and Others v Council [2010] ECR II-671 and of 4 March 2010 in Joined Cases T-407/06 and T-408/06 Zhejiang Aokang Shoes and Wenzhou Taima Shoes v Council [2010] ECR II-747 (‘the judgments of the General Court’), the General Court rejected those challenges.

The applicants appealed those judgements. In its judgments of 2 February 2012 in case C-249/10 P Brosmann et al and of 15 November 2012 in case C-247/10P Zhejiang Aokang Shoes Co. Ltd, the Court of Justice set aside the judgments of the General Court. It held that the General Court erred in law in so far as it held that the Commission was not required to examine requests for market economy treatment (‘MET’) under Article 2(7)(b) and (c) of the basic Regulation from non-sampled traders (paragraph 36 of the judgement in Case C-249/10 P and paragraph 29 and 32 of the judgement in Case C-247/10 P).

The Court of Justice then gave judgement itself in the matter. It held: ‘[…] the Commission ought to have examined the substantiated claims submitted to it by the appellants pursuant to Article 2(7)(b) and (c) of the basic regulation for the purpose of claiming MET in the context of the anti-dumping proceeding [which is] the subject of the contested regulation. It must next be found that it cannot be ruled out that such an examination would have led to a definitive anti-dumping duty being imposed on the appellants other than the 16,5 % duty applicable to them pursuant to Article 1(3) of the contested regulation. It is apparent from that provision that a definitive anti-dumping duty of 9,7 % was imposed on the only Chinese trader in the sample which obtained MET. As is apparent from paragraph 38 above, had the Commission found that the market economy conditions prevailed also for the appellants, they ought, when the calculation of an individual dumping margin was not possible, also to have benefited from the same rate’ (paragraph 42 of the judgement in Case C-249/10 P and paragraph 36 of the judgement in Case C-247/10 P).

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

Two importers of the product concerned, C&J Clark International Ltd. and Puma SE 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.

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.

In this case, the illegality occurred after initiation. Hence, the Commission decided to resume this anti-dumping proceeding that was still open at the very point at which the illegality occurred and to examine whether market economy conditions prevailed for the exporting producers concerned for the period from 1 April 2004 to 31 March 2005.

For imports of C&J Clark International Ltd. and Puma SE, the Commission will assess all MET and IT claims submitted.

It is appropriate to order the national customs authorities, on the basis of Article 14 of the basic Regulation, not to reimburse those duties in the meantime. The Commission will make that assessment within eight months from the date of the judgment.

For imports of other importers that did not have standing themselves to bring an action for annulment, and which hence can rely on the judgment in their applications for re-imbursement of anti-dumping duties pursuant to Article 236 Community Customs Code, the Commission will, for the sake of efficient use of resources, only assess MET and IT claims of those exporting producers which are concerned by re-imbursement claims that have been filed with national customs authorities in due time and form. The Commission notes that according to Article 236(2) of the Community Customs Code Import duties or export duties shall be repaid or remitted upon submission of an application to the appropriate customs office within a period of three years from the date on which the amount of those duties was communicated to the debtor. The Commission also notes that the invalidation of a regulation imposing anti-dumping duties does not constitute unforeseeable circumstances within the meaning of that provision, allowing an extension of the three-year time-limit during which an importer can request the repayment of import duties paid pursuant to that regulation.

The Commission will then verify whether the exporting producer whose exports were subject to the repayment claim had indeed requested the MET or IT assessment and if yes, whether such an exporting producer should be granted MET or IT or not.

The Commission will adopt Regulations establishing the assessment and re-imposing, where appropriate, the applicable duty rate. Those newly established rates will take effect as from the date on which the annulled regulation entered into force.

Therefore, the national customs authorities are obliged to await the outcome of such investigation before deciding on any repayment claim.

The Commission will strive to respect the delay provided for in the basic Regulation for assessing MET and IT, that is eight months from receiving the information from national customs authorities, in order to avoid any undue delays.

The analysis of MET and IT claims of exporting producers that have sold to Puma SE and C&J Clark International Ltd should be carried out within eight months from the date of the judgment.

As regards the anti-dumping duty imposed on other Chinese and Vietnamese exporting producers (apart from those subject to Council Implementing Decision 2014/149/EU and those referred to in the first sentence hereof) the national customs authorities before which claims for repayment or remission of anti-dumping duties paid in respect of exports of these other exporting producers were made should contact the Commission, so that it can assess the MET and IT claims and re-impose, where appropriate, the anti-dumping duties.

The Regulation is in accordance with the opinion of the Committee established by Article 15(1) of Regulation (EC) No 1225/2009,