EN
26.10.2012 Official
Journal
of
the
European
Union
L
297/5
COUNCIL IMPLEMENTING REGULATION (EU) No 987/2012
of 22 October 2012
reimposing a definitive anti-dumping duty on imports of ironing boards originating in the People’s
Republic of China, manufactured by Zhejiang Harmonic Hardware Products Co. Ltd
THE COUNCIL OF THE EUROPEAN UNION,
(4) According
to
Article
266
of
the
Treaty
on
the
Func
tioning of the European Union (‘TFEU’), the Union insti
tutions are obliged to comply with the General Court
Having regard to the Treaty on the Functioning of the European
judgment of 8 November 2011. It is established case-
Union,
law (Case T-2/95 ( 4 ), ‘the IPS case’) that, in cases where
a proceeding consists of several administrative steps, the
Having regard to Council Regulation (EC) No 1225/2009 of
annulment of one of those steps does not annul the
30 November 2009 on protection against dumped imports
complete proceeding. The anti-dumping proceeding is
from countries not members of the European Community (
an example of such a multi-step proceeding.

1 )
(‘the basic Regulation’), and in particular Article 9 thereof,
Consequently, the annulment of the contested Regulation
in relation to one party does not imply the annulment of
the entire procedure prior to the adoption of that Regu
Having regard to the proposal from the European Commission
lation. Moreover, according to the Court’s case-law, in
(‘the Commission’) after consulting the Advisory Committee,
order to comply with a judgment annulling a measure
and to implement it fully, the institution which took the
measure should resume the procedure at the very point
Whereas:
at which the illegality occurred and replace that
measure ( 5 ). Finally, the implementation of a court
A.
ruling also implies the possibility to remedy the aspects
PROCEDURE
of the contested Regulation which led to its annulment,
(1) By
Regulation
(EC)
No
452/2007
of
23
April
2007
while leaving unchanged the uncontested parts which are
imposing a definitive anti-dumping duty and collecting
not affected by the General Court judgment, as was held
definitively the provisional duty imposed on imports of
in Case C-458/98 P ( 6 ). It should be noted that apart
ironing boards originating in the People’s Republic of
from the finding of an infringement of Article 20(5)
China and Ukraine (
and of Article 8 of the basic Regulation, all other

2 ) (‘the contested Regulation’), the
Council imposed definitive anti-dumping duties ranging
findings made in the contested Regulation remain auto
from 9,9 % to 38,1 % on imports of ironing boards,
matically valid to the extent that the General Court
whether or not free-standing, with or without a steam
dismissed all arguments made in this respect.
soaking and/or heating top and/or blowing top, including
sleeve boards, and essential parts thereof, i.e. the legs, the
(5) Following
the
General
Court
judgment
of
8
November
top and the iron rest originating in the People’s Republic
2011, a notice (
of China (‘China’) and Ukraine.

7 ) was published concerning the partial

reopening of the anti-dumping investigation concerning
imports of ironing boards originating, inter alia, in China.
(2) On
19
July
2007,
one
cooperating
Chinese
exporting
The reopening was limited in scope to the implemen
producer, namely Zhejiang Harmonic Hardware
tation of the General Court judgment in so far as
Products Co. Ltd (‘Harmonic’), lodged an application at
Harmonic is concerned.
the General Court seeking the annulment of the
contested Regulation in so far as it applies to the appli
(6) The
Commission
officially
advised
the
exporting
cant ( 3 ).
producers, the importers and users known to be
concerned, the representatives of the exporting country
(3) On
8
November
2011,
the
General
Court
in
its
judgment
and the Union industry of the partial reopening of the
in Case T-274/07 (‘the General Court judgment’) found
investigation. Interested parties were given the oppor
that the failure to comply with the period prescribed by
tunity to make their views known in writing and to
Article 20(5) of the basic Regulation was such as in fact
request a hearing within the time limit set out in the
to affect the rights of defence of Harmonic, and that the
notice.
Commission had also infringed Article 8 of the basic
Regulation, which conferred on Harmonic the right to
offer undertakings up to the expiry of that period.
(7) All
parties
who
so
requested
within
the
above
time
limit,
and who demonstrated that there were particular reasons
Therefore, the General Court annulled Articles 1 and 2
why they should be heard, were granted the opportunity
of the contested Regulation in so far as they impose a
to be heard.
definitive anti-dumping duty and collect definitively the
provisional duty on ironing boards manufactured by
Harmonic.
( 4 ) Case T-2/95 Industrie des poudres sphériques (IPS) v Council [1998] ECR
II-3939.
( 5 ) Case C-415/96 Spain v Commission [1998] ECR I-6993, para
( 1 ) OJ L 343, 22.12.2009, p. 51.
graph 31.
( 2 ) OJ L 109, 26.4.2007, p. 12.
( 6 ) Case C-458/98 P Industrie des poudres sphériques (IPS) v Council [2000]
( 3 ) Case T-274/07 Zhejiang Harmonic Hardware Products Co. Ltd v Council
ECR I-08147.
of the European Union.
( 7 ) OJ C 63, 2.3.2012, p. 10.

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L 297/6
EN
Official Journal of the European Union
26.10.2012
(8) Representations
were
received
from
one
exporting
members of the European Economic Community ( 1 ) (‘the
producer in China (the party directly concerned, i.e.
old basic Regulation’), under which mandatory deadlines
Harmonic) and one unrelated importer.
did not yet apply.
(15) Harmonic
also
argued
that
reissuing
a
revised
disclosure
(9) All
parties
concerned
were
informed
of
the
essential
facts
and granting a period to reply in line with Article 20(5)
and considerations on the basis of which it was intended
of the basic Regulation could not correct the violation of
to recommend the imposition of definitive anti-dumping
Harmonic’s rights of defence and the unlawful imposition
duties on Harmonic. They were granted a period within
of duties.
which to make representations subsequent to disclosure,
but none reacted at that stage.
(16) According
to
Harmonic,
once
the
Commission’s
proposal
for definitive measures was submitted to the Council in
B. IMPLEMENTATION OF THE GENERAL COURT
2007, the Commission irremediably lost its ability to
JUDGMENT
make a proposal to the Council to impose duties
against Harmonic without breaching the company’s
1. Preliminary remark
rights of defence. In Harmonic’s view, the Commission
would no longer be in a position to receive any
(10) It is recalled that the reason for the annulment of the
comments with the required room for manoeuvre and
contested Regulation was that the Commission had sent
consider Harmonic’s proposal for an undertaking.
its proposal to impose a definitive anti-dumping duty to
the Council before the end of the 10-day mandatory
(17) Harmonic
submits
that
its
right
to
offer
price
under
deadline for receiving comments following the sending
takings within the prescribed period cannot be
to interested parties of a definitive disclosure document,
corrected by procedurally reopening the original investi
as provided for in Article 20(5) of the basic Regulation.
gation. In addition, Harmonic alleges that recital 68 of
Furthermore, the Commission had also infringed
the contested Regulation apparently included the
Article 8 of the basic Regulation, which conferred on
assessment of a formal price undertaking offered by
Harmonic the right to offer undertakings up to the
Harmonic.
expiry of that period.
(18) Furthermore,
Harmonic argued that the Commission
2. Comments of interested parties
could not reopen the case because it would have lost
its objectivity and impartiality since the contested Regu
(11) Harmonic
stated
that
a
breach
of
the
rights
of
defence
of
lation proposed by the Commission was partially
the type identified by the General Court cannot be cured
annulled by the General Court.
by the reopening of the investigation. The General Court
judgment would require no implementing measures.
(19) Lastly,
Harmonic
pointed
out
that
the
Commission
could
not reimpose anti-dumping measures based on
information relating to 2005, being more than six
(12) For Harmonic, the only way for the Commission to
years prior to the initiation of the partial reopening of
comply with the General Court judgment, as required
the investigation, as this would not be in line with
by Article 266 TFEU, would be to withdraw the
Article 6(1) of the basic Regulation.
measures permanently as far as Harmonic was
concerned. The violation of Article 8 of the basic Regu
lation would require the EU institutions to restore
(20) One
unrelated
Union
importer/producer
pointed
out
the
repercussions of the General Court’s annulment and of
Harmonic’s right to offer price undertakings back in
the subsequent partial reopening of the investigation on
2007.
its business. It did not submit any information and data
as to the legal merits of the reinvestigation, but rather
(13) According
to
Harmonic,
the
reopening
would
be
illegal
referred to the comments submitted in the context of a
because there is no specific provision in the basic Regu
previous reinvestigation that was concluded by Council
lation allowing for such an approach, and because such
Implementing Regulation (EU) No 805/2010 of
reopening would be in conflict with the 15-month
13 September 2010 re-imposing a definitive anti-
statutory deadline for the completion of an investigation
dumping duty on imports of ironing boards originating
laid down by Article 6(9) of the basic Regulation, and the
in the People’s Republic of China, manufactured by
18-month deadline as set out by Article 5.10 of the
Foshan Shunde Yongjian Housewares and Hardware Co.
WTO Agreement on Implementation of Article VI of
Ltd, Foshan ( 2 ).
the GATT 1994 (‘Anti-dumping Agreement’). It alleged
that the EU institutions cannot purport to reimpose
3. Analysis of comments
measures based on their powers to adopt definitive
measures (in particular Article 9 of the basic Regulation)
(21) It is recalled that the General Court has dismissed all the
and at the same time deny that these deadlines in the
substantive arguments of Harmonic referring to the
same provision of the basic Regulation apply.
merits of the case. Thus, the Union institutions’
obligation is focused on correcting the part of the admin
istrative procedure in the initial investigation where the
(14) Harmonic
submitted
that
the
IPS
case
could
not
serve
as
irregularity occurred.
a precedent because it was based on Council Regulation
(EЕC) No 2423/88 of 11 July 1988 on protection against
( 1 ) OJ L 209, 2.8.1988, p. 1.
dumped or subsidized imports from countries not
( 2 ) OJ L 242, 15.9.2010, p. 1.

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EN
26.10.2012 Official
Journal
of
the
European
Union
L
297/7
(22) The
claim
that
the
introduction,
pursuant
to
Article
6(9)
Appellate Body reports because of the lack of direct
of the basic Regulation, of a 15-month deadline to
applicability of such reports in the Union legal order,
conclude anti-dumping investigations prevents the
contrary to the implementation of the judgments of
Commission from following the approach underlying
the General Court which are directly applicable.
the IPS case was found to be unwarranted. It is
considered that this deadline is not relevant for the
implementation of a judgment of the General Court.
Indeed, such deadline only governs the completion of
(26) It is recalled that Article 9 of the basic Regulation does
the original investigation from the date of initiation to
not concern deadlines for conducting anti-dumping
the date of definitive action, and does not concern any
investigations. It concerns general issues related to
subsequent action that might have to be taken, for
terminations without measures and the imposition of
instance as a result of judicial review. Furthermore, it is
definitive duties.
noted that any other interpretation would mean that, for
example, a successful legal action brought by the Union
industry would be without any practical effect for that
party if the expiry of the time limit to conclude the
(27) With
respect
to
the
arguments
submitted
on
the
appli
original investigation would not permit the implemen
cation of Article 6(1) of the basic Regulation, it is noted
tation of a judgment of the General Court. This would
that no infringement of Article 6(1) of the basic Regu
be at odds with the principle that all parties should have
lation could be established since the Commission has not
the right to effective judicial review.
opened a new proceeding but reopened the original

investigation to implement the General Court judgment.
(23) It is also recalled that the General Court in its judgment
in Joined Cases T-163/94 and T-165/94 ( 1 ) has held that
(28) As regards Harmonic’s allegation concerning the breach
even the soft deadline applicable under the old basic
of its right to offer price undertakings, it should be noted
Regulation could not be stretched beyond reasonable
that Harmonic’s argument is twofold. First, Harmonic
limits, and that an investigation lasting for more than
alleges that it is not legally, practically or realistically
three years was too long. This contrasts with the IPS
possible for the Commission to retroactively backdate a
case, where the implementation of a previous Court of
price undertaking for a period of almost five years.
Justice judgment occurred almost seven years after the
Second, Harmonic claims that on the one hand, recital
initiation of the original investigation, and the Court of
68 of the contested Regulation includes the assessment
Justice judgment contains no indication that deadlines
of a formal price undertaking offered by Harmonic,
were an issue.
whilst on the other hand, the Commission sustains that
any price undertakings that could have been submitted
by Harmonic would have been rejected anyway, because
(24) Therefore, it is concluded that Article 6(9) of the basic
they would be impractical to monitor.
Regulation only applies to the initiation of proceedings

and the conclusion of the investigation initiated pursuant
to Article 5(9) of the basic Regulation, and not to a
partial reopening of an investigation with a view to
(29) Regarding
Harmonic’s
allegation
on
the
reopening
of
the
implementing a judgment of the General Court.
original investigation in order to remedy the
infringement of its right to offer price undertakings
within a prescribed period, the reopening is justified
(25) This conclusion is in line with the approach taken for the
given that Harmonic’s right to offer undertakings was
implementation of WTO panels and Appellate Body
infringed in the context of the original investigation. In
reports, where it is accepted that institutions could
any event, in the absence of a formal price undertaking
amend deficiencies of a regulation imposing anti-
offered by Harmonic, the discussion of its potential
dumping duties in order to comply with dispute
effects is devoid of purpose.
settlement body reports, including in cases concerning
the Union ( 2 ). In such cases it was felt necessary to
adopt special procedures to implement WTO panel and
(30) In
addition,
as
to
Harmonic’s
interpretation
of
recital
68
( 1 ) Joined Cases T-163/94 and 165/94 NTN Corporation and Koyo Seiko
of the contested Regulation, it should be pointed out that
Co. Ltd v Council [1995] ECR II-01381.
that recital simply reflects the fact that there were
( 2 ) European Communities-Antidumping Duties on Imports of Cotton-
discussions about potential price undertakings proposed
Tyle Bed Linen from India: Recourse to Article 21.5 of the DSU by
by some exporting producers, and the reasons why the
India WT/DS141/AB/RW (8 April 2003), paragraphs 82-86; Council
institutions deemed undertakings in general impractical
Regulation (EC) No 1515/2001 of 23 July 2001 on the measures
at that point in time. Harmonic’s claim that the recital
that may be taken by the Community following a report adopted by
the WTO Dispute Settlement Body concerning anti-dumping and
apparently includes the assessment of a (non-submitted)
anti-subsidy matters (OJ L 201, 26.7.2001, p. 10); Council Regu
formal price undertaking offered by Harmonic is thus
lation (EC) No 436/2004 of 8 March 2004 amending Regulation
unfounded.
(EC) No 1784/2000 imposing a definitive anti-dumping duty and
collecting definitively the provisional duty imposed on imports of
certain malleable cast iron tube or pipe fittings originating in Brazil,
the Czech Republic, Japan, the People’s Republic of China, the
(31) Moreover, it is noted that the arguments put forward in
Republic of Korea and Thailand (OJ L 72, 11.3.2004, p. 15)
following Reports adopted by the Dispute Settlement Body of the
recital 68 of the contested Regulation do not prejudge
WTO.
offers of formal price undertakings that could be made at

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L 297/8
EN
Official Journal of the European Union
26.10.2012
a later stage, but set out the reasons why the acceptance
(36) Article
8
of
the
basic
Regulation
conferred
on
Harmonic
of price undertakings is unlikely in this case, in particular
the right to offer undertakings up to the expiry of the
if the concerns about their practicability are not properly
10-day period prescribed in Article 20(5) of the basic
addressed. As provided for in Article 8(3) of the basic
Regulation.
Regulation, undertakings offered need not be accepted if
their acceptance is considered impractical.
(37) Neither Harmonic nor any other interested party
submitted any comment or offered any undertaking
4. Conclusion
within the established deadline.
(32) Account taken of the comments made by the parties and
D. DURATION OF MEASURES
the analysis thereof, it was concluded that the implemen
tation of the General Court judgment should take the
(38) This
procedure
does
not
affect
the
date
on
which
the
form of re-disclosure to Harmonic and all other
measures imposed by the contested Regulation will
interested parties of the revised definitive disclosure
expire pursuant to Article 11(2) of the basic Regulation.
document of 23 March 2007, on the basis of which it
It is noted in this regard that on 25 April 2012, a notice
was proposed to reimpose an anti-dumping duty on
of initiation of an expiry review of the anti-dumping
imports of ironing boards manufactured by Harmonic.
measures applicable to imports of ironing boards orig
inating in the People’s Republic of China and Ukraine ( 1 )
(33) On the basis of the above, it was also concluded that the
was published in the Official Journal of the European Union,
Commission should give Harmonic and all other
interested parties enough time to provide comments on
HAS ADOPTED THIS REGULATION:
the revised definitive disclosure document of 23 March
2007, and then evaluate such comments in order to
Article 1
determine whether to make a proposal to the Council
1. A
definitive
anti-dumping
duty
is
hereby
reimposed
on
to reimpose the anti-dumping duty on imports of ironing
imports of ironing boards, whether or not free-standing, with
boards manufactured by Harmonic on the basis of the
or without a steam soaking and/or heating top and/or blowing
facts relating to the original investigation period.
top, including sleeve boards, and essential parts thereof, i.e. the
C. DISCLOSURE
legs, the top and the iron rest originating in the People’s
Republic of China, currently falling within CN codes
(34) Interested
parties
were
informed
of
the
essential
facts
and
ex 3924 90 00, ex 4421 90 98, ex 7323 93 00, ex 7323 99 00,
considerations on the basis of which it was intended to
ex 8516 79 70
and
ex 8516 90 00
(TARIC
codes
implement the General Court judgment.
3924 90 00 10,
4421 90 98 10,
7323 93 00 10,
7323 99 00 10, 8516 79 70 10 and 8516 90 00 51) and
All interested parties were given an opportunity to
manufactured by Zhejiang Harmonic Hardware Products Co.
comment, applying the 10-day period prescribed in
Ltd, Guzhou (TARIC additional code A786).
Article 20(5) of the basic Regulation.
2. The
rate
of
the
definitive
anti-dumping
duty
applicable
to
(35) Harmonic
and
all
other
interested
parties
received
the
the net, free-at-Union-frontier price, before duty, shall be
revised definitive disclosure document dated 23 March
26,5 %.
2007 on the basis of which it was proposed to
reimpose the anti-dumping duty on imports of ironing
3. Unless
otherwise
specified,
the
provisions
in
force
boards manufactured by Harmonic on the basis of the
concerning customs duties shall apply.
facts relating to the original investigation period.
Article 2
Harmonic and all other interested parties were given an
opportunity to comment on the above-mentioned revised
This Regulation shall enter into force on the day following that
definitive disclosure document dated 23 March 2007.
of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Luxembourg, 22 October 2012.
For the Council
The President
S. ALETRARIS
( 1 ) OJ C 120, 25.4.2012, p. 9.

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Document Outline

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