9The facts of the dispute were set out as follows by the General Court in paragraphs 10 to 42 of the judgment under appeal:10 The applicants [Brosmann, Seasonable Footwear (Zhongshan) Ltd, Lung Pao and Risen Footwear (HK) Co. Ltd] are footwear-producing and exporting companies established in China.11 Imports of footwear from China falling within certain categories of the combined nomenclature were subject to a quantitative quota regime which lapsed on 1 January 2005.12 Following a complaint lodged on 30 May 2005 by the Confédération européenne de l’industrie de la chaussure (“CEC”), the Commission of the European Communities (now the European Commission) initiated an anti-dumping proceeding concerning imports of certain footwear with uppers of leather originating in China and Vietnam. The notice of initiation of that proceeding was published in the Official Journal of the European Union of 7 July 2005 (OJ 2005 C 166, p. 14) (“the notice of initiation”).13 In view of the large number of parties involved, it was envisaged, at point 5.1(a) of the notice of initiation, to apply sampling, in accordance with Article 17 of the basic regulation.14 The applicants contacted the Commission and on 25 and 26 July 2005 provided it with the information required by points 5.1(a)(i) and 5.1(e) of the notice of initiation in order to form part of the sample of exporting producers which the Commission proposed to establish pursuant to Article 17 of the basic regulation and in order to be granted MET or, failing that, to be given individual treatment (“IT”).15 On 23 March 2006, the Commission adopted Regulation (EC) No 553/2006 imposing a provisional anti-dumping duty on imports of certain footwear with uppers of leather originating in the People’s Republic of China and Vietnam (OJ 2006 L 98, p. 3) (“the provisional regulation”).16 According to recital 9 to the provisional regulation, the investigation of dumping and injury covered the period from 1 April 2004 to 31 March 2005 (“the investigation period”). The examination of trends relevant for the assessment of injury covered the period from 1 January 2001 to 31 March 2005 (“the period considered”).17 In light of the need to establish a normal value for the products of the Chinese and Vietnamese exporting producers which could not be granted MET, a verification to establish normal value on the basis of data from an analogue country, in this case the Federative Republic of Brazil, took place at the premises of three Brazilian companies (recital 8 to the provisional regulation).18 As regards the product concerned, it follows from recitals 10, 11, 40 and 41 to the provisional regulation that that regulation covered essentially sandals, boots, urban footwear and city shoes, all manufactured with uppers of leather or composition leather. It follows, moreover, from recitals 12 to 31 to the provisional regulation that the Commission excluded Special Technology Athletic Footwear (“STAF”) from the definition of the product concerned and that it included children’s footwear. According to recital 38 to the provisional regulation, all remaining types of footwear with uppers of leather, although they cover a wide range of styles and types, have essentially the same basic characteristics, and their uses and consumer perception remain the same. Thus, all those various styles and types are, according to recital 39 to that regulation, in direct competition and to a very large extent interchangeable.19 The Commission therefore concluded, at recital 52 to the provisional regulation, that all types of footwear with uppers of leather or composition leather produced and sold in the countries concerned and in Brazil and those produced and sold by the Community industry were alike to those exported from the countries concerned to the Community.20 In ascertaining whether there had been dumping, the Commission applied sampling. Of the Chinese exporting producers which came forward in order to be included in the sample, 154 exported to the Community during the investigation period, according to recital 55 to the provisional regulation. According to the same recital, those companies were initially considered to be cooperating companies and were taken into account in the selection of the sample.21 It follows from recital 57 to the provisional regulation that the Commission finally selected a sample consisting of 13 Chinese exporting producers representing more than 20% of the Chinese export volume to the Community. According to recital 59 to that regulation, the criteria taken into account in the selection of the sample were, first, the size of the exporting producer in terms of export sales to the Community and, second, the size of the exporting producer in terms of domestic sales. With respect to the latter criterion, the Commission stated at recital 60 to the provisional regulation that domestic sales figures would make the sample more representative by providing information on prices and costs associated with producing and selling the product concerned on the domestic markets. According to recital 61 to the provisional regulation, the Chinese companies selected for the sample represented 25% of export quantities to the Community and 42% of Chinese domestic market sales by producers which had cooperated in the investigation. According to the same recital, the exclusion of STAF from the definition of the product concerned did not significantly influence the representativeness of the sample.22 According to recital 62 to the provisional regulation, exporting producers which were not finally retained in the sample were informed that any anti-dumping duty on their exports would be calculated in accordance with the provisions of Article 9(6) of the basic regulation. As regards the requests presented by those exporting producers which sought an individual dumping margin pursuant to Article 9(6) and Article 17(3) of the basic regulation, the Commission considered, at recital 64 to the basic regulation, that individual examination of those exporting producers would be unduly burdensome and prevent it from completing the investigation in good time. In those circumstances, the dumping margin of those producers was determined on the basis of the weighted average of the dumping margins of the companies in the sample (recitals 135 and 143 to the provisional regulation).23 One of the 13 companies initially included in the sample did not respond to the anti-dumping questionnaire which the Commission sent it (recital 63 to the provisional regulation).24 As regards the definition of the Community industry, the Commission observed, at recital 150 to the provisional regulation, that the complainants accounted for 42% of the total Community production of the product concerned. According to recitals 65 and 151 to the provisional regulation, the Commission selected a sample of 10 Community producers on the basis of their production volume and location. The producers in the sample represented approximately 10% of the production of the complainants. Thus, the 814 Community producers on whose behalf the complaint was lodged were deemed to constitute the Community industry within the meaning of Article 5(4) of the basic regulation (recital 152 to the provisional regulation).25 As regards the identities of the Community producers taking part in the sample, the Commission observed that certain Community producers supply customers in the Community that also source their products in China and Vietnam and thus benefit directly from the imports in question. Those producers are therefore in “a sensitive position”, since some of their customers may not be satisfied with their having lodged or supported a complaint against alleged injurious dumping. Those producers therefore considered that there was “a risk of retaliation” by some of their customers, including the possible termination of their business relationship. The Commission therefore granted the request for confidential treatment of the identities of the companies selected to participate in the sample (recital 8 to the provisional regulation).26 As regards the level which the provisional anti-dumping measures ought to reach in order to eliminate injury, the Commission stated, at recital 284 to the provisional regulation, that a profit margin of 2% of turnover could be expected for the Community industry in the absence of injurious dumping. That profit margin, according to the same recital, corresponds to the highest level of profit achieved by the Community industry during the period under examination and namely during 2002, when the market shares from the countries concerned were relatively limited by comparison with the level attained during the investigation period.27 By letters of 7 and 12 April 2006, the Commission sent the applicants, pursuant to Article 14(2) and Article 20(1) of the basic regulation, respectively, a copy of the provisional regulation and a document containing information on the details underlying the essential facts and considerations on the basis of which the anti-dumping duties were imposed (“the general disclosure document”). The Commission invited the applicants to submit any comments which they might have on those documents by 8 May 2006.28 By letters of 8 May 2006, two of the applicants, Brosmann … and Lung Pao … sent the Commission their comments on the provisional regulation and the general disclosure document.29 On 2 June 2006, a meeting took place between Lung Pao and the Commission at the Commission’s headquarters.30 By fax of 8 July 2006, the Commission sent the applicants, pursuant to Article 20(2) to (4) of the basic regulation, a final disclosure document setting out the essential facts and considerations forming the basis of the proposal to impose definitive anti-dumping duties. The Commission invited the applicants to submit their comments on the final disclosure document by 17 July 2006.31 By letter of 28 July 2006, the Commission sent the applicants an additional final disclosure document.32 By letters of 17 July and 2 August 2006, three of the applicants, Brosmann, Seasonable Footwear (Zhongshan) [Ltd and Lung Pao,] and Novi Footwear (Far East) Pte Ltd sent the Commission their comments on the final disclosure document and the additional final disclosure document. By letter of 7 August 2006, the other applicant, Risen Footwear (HK) Co. [Ltd] sent the Commission its comments on the additional final disclosure document.33 On 5 October 2006, the Council of the European Union adopted [the contested regulation]. By [that] regulation, the Council imposed a definitive anti-dumping duty on imports of footwear with uppers of leather or composition leather, excluding sports footwear, STAF, slippers and other indoor footwear and footwear with a protective toecap, originating in China and falling within a number of combined nomenclature codes (Article 1 of the contested regulation). The rate of the definitive anti-dumping duty applicable, before duty, to the net free-at-Community-frontier price was established, for footwear produced by the applicants, at 16.5%. Pursuant to Article 3, the contested regulation was to remain in force for a period of two years.34 As regards the product concerned, the Council confirmed the Commission’s assessment (see paragraph 18 above), according to which STAF should be excluded from the definition of the product concerned, whereas children’s footwear should be included (recitals 19 and 25 to the contested regulation). On the other hand, the Council rejected the requests to exclude from the definition of the product concerned six types of footwear, including patented technology footwear. With respect to that category of footwear, the Council observed that patented technology does not by itself substantially change the characteristics of being footwear for ordinary usage. Accordingly, that footwear remains in competition with the Community production of the product concerned (recital 37 to the contested regulation).35 As regards the representativeness of the sample of the Chinese producers, the Council stated, at recital 44 to the contested regulation, that the undertakings taking part accounted for more than 12% of exports to the Community by the cooperating producers. Since Article 17 of the basic regulation lays down no threshold with respect to the level of representativeness, the sample taken is representative for the purposes of that provision.36 The Council also stated, at recital 46 to the contested regulation, that the methodology applied was intended to ensure the highest possible representativeness of the samples and to include within the largest representative volume of exports that could reasonably be investigated some companies with representative domestic sales.37 As regards the sample of Community producers, the Council, at recitals 53 to 59 to the contested regulation, rejected all the complaints questioning the representativeness of that sample and, accordingly, confirmed the findings of the Commission in the provisional regulation (see paragraph 24 above).38 The Council dealt with the questions connected with the claims of a number of companies to be granted MET, on which the Commission had not ruled, at recitals 60 to 65 to the contested regulation.39 According to those recitals, the fact that the Commission did not respond individually to each MET claim submitted to it does not constitute a breach of the basic regulation. It is, on the contrary, consistent with Article 17 of that regulation. The sampling methodology provided for in that article also applies where a high number of companies concerned request MET or IT. In the present case, the exceptionally high number of claims by the companies concerned left the administration with no alternative other than to examine only those from the companies which were part of the sample in order to balance necessities resulting from an as individualised as possible case assessment within the margin of mandatory deadlines. That entailed the application to all non-sampled companies of the weighted average margin resulting from the undertakings in the sample. It follows that the complaints formulated during the administrative procedure, according to which the dumping calculation is not representative, must also be rejected.40 Those considerations also apply to claims for IT.41 As regards the definition of the Community industry, the Council emphasised, at recital 157 to the contested regulation, that none of the complainants had been found not to cooperate with the investigation. Full injury questionnaires were sent only to the sampled Community producers, which followed from the very nature of sampling (recital 158 to the contested regulation).42 As for the level at which the definitive anti-dumping duties would have to be set in order to eliminate injury, the Council referred at recital 292 to the contested regulation to evidence provided by the Community industry after the imposition of the provisional duties, which showed that the profit margin of 2% fixed by the provisional regulation (see paragraph 26 above) must be reconsidered. On that basis, the Council increased that margin to 6% of the turnover of the Community industry, noting that it had in fact achieved that margin for footwear not subject to materially injurious dumping.’
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