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.

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.

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.

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.

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.

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.

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.

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.

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 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.

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.

1. (1)

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

2. (2)

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

3. (3)

   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. (4)

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

5. (5)

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

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.

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.

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.

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.

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).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

All above claims had therefore to be rejected.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

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.

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.

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

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.

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.

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.

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.

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

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.

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

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.

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.

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).

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.

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.

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:

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.