The background

1. In 1995, the EU established anti-dumping duties on ammonium nitrate imports from Russia, which were due to expire on 13 July 2013[1]. A review request was necessary to stop the expiry of the measures. On 28 March 2013, the Commission received such a request (the ‘Review Request’) on behalf of a number of Union producers of ammonium nitrate fertilisers. As a result, in July 2013, the Commission initiated an expiry review procedure through the publication of a Notice of Initiation in the Official Journal[2].

2. The complainant, an interested party in the procedure, requested access to the Review Request under Article 6(7) of the Anti-dumping Regulation[3] (the 'Basic Regulation'). This provision states that interested parties may inspect all information made available by any party to an investigation which is relevant to the presentation of their cases, not confidential and used in the investigation.

3. The Commission refused access, arguing that, in fact, the review procedure was not based on the Review Request, but on a subsequent, consolidated version of it (the 'Consolidated Request'), which the applicant lodged following the Commission's request for further clarifications. Therefore, the Review Request was not "used" in the investigation, and the Commission "fail[ed] to see how the access to a letter concerning a version of the complaint that was not final and that did not constitute the basis for Commission's decision would allow [the complainant] to better exercise its rights of defence".

4. The complainant contacted the Ombudsman who opened an inquiry into the complainant's allegations that the Commission (i) had not acted in accordance with Article 6(7) of the Basic Regulation when it refused to grant access to the Review Request and, consequently, (ii) undermined the complainant's rights of defence as an interested party in the expiry review investigation. The inquiry also included the complainant's claim that the Commission should grant access to a non-confidential version of the Review Request[4].

5. Additionally, in the letter which opened the inquiry, the Ombudsman put three questions to the Commission, namely (i) why the Notice of Initiation referred only to the Review Request, if the investigation was actually triggered by the Consolidated Request; (ii) whether the Review Request mentioned in the Notice of Initiation contained "sufficient evidence that the expiry of the measures would be likely to result in a continuation or recurrence of dumping and injury" as required by the Basic Regulation, and (iii) if not, at which point in time the applicant provided such evidence.

6. In the course of the inquiry, the Ombudsman received the opinion of the Commission on the complaint and, subsequently, the comments of the complainant in response to the Commission's opinion. The Ombudsman also carried out an inspection of the Commission's file concerning this case. The complainant submitted observations concerning the inspection report and the content of the Commission's file. On 26 June 2015, the Ombudsman made a recommendation to the Commission, to which the Commission replied on 15 October 2015. The complainant sent its observations on the Commission's detailed opinion on 30 November 2015[5].

Alleged wrongful denial of access to the Review Request, leading to a violation of the rights of defence, and related claim

The Ombudsman's recommendation

7. When addressing the recommendation to the Commission, the Ombudsman took into account the arguments and opinions put forward by the parties.

8. The Commission stated that the Review Request triggered the review process. The Commission considered that the Review Request contained documented allegations concerning the likelihood of dumping and recurrence of injury. However, the Commission was not satisfied that there was sufficient evidence on the file to justify the initiation of a review investigation. As a result, the Commission carried out a clarification procedure. It also stated that a three month period was necessary in the interests of administrative convenience to allow the Commission to assess whether an expiry review should be initiated, after requesting the necessary clarifications. The Commission stated that the Review Request "together with the subsequent clarifications presented as a consolidated version ... formed the basis" for opening the investigation.

9. The Commission argued that in relation to the complainant's rights of defence, the complainant as an interested party had been given access to the Consolidated Request. The Commission explained that the Consolidated Request was the document on the basis of which the Commission took its decision. Thus, in the Commission's view, only the Consolidated Request became part of the record to be shared with other interested parties, and this, only once the investigation had been opened. As a result, the Commission stated that the complainant could not have access to correspondence between the applicants and the Commission prior to the initiation of the investigation. Furthermore, the Commission considered that the Hearing Officer had addressed the concerns of the complainant by confirming that the Review Request had the necessary support from the Union industry, thus clarifying the complainant's concerns about the sufficiency of evidence.

10. The complainant disputed this and stated that the Review Request was used in the investigation as the Notice of Initiation clearly refers to it. The complainant added that if the Review Request was not used, then the review procedure was unlawful as the Consolidated Version was lodged outside the legal deadline imposed by the Basic Regulation.

11. In relation to the complainant's defence rights, it stated that without seeing the Review Request, the complainant could not (i) verify whether the Review Request was lodged within the legal time limit, (ii) assess whether the request contained sufficient evidence as required by the Basic Regulation for the initiation of the review request, (iii) compare the Review Request with subsequent versions, and (iv) assess whether the Commission conducted a proper examination of the sufficiency of the evidence contained in the Review Request upon which the review investigation was initiated.

12. The Ombudsman based her assessment of the issue on the provisions of the Basic Regulation, in particular Article 11(2). The Ombudsman considered that this provision sets out two cumulative conditions for the initiation of an expiry review. These are (i) that the request must be formally made no later than three months before the end of the five year period, and (ii) that the request must contain sufficient evidence that the expiry of the measures would be likely to result in a continuation or recurrence of dumping and injury.

13. The Ombudsman agreed that the three month period was established for the administrative convenience of the Commission, in order to allow it time to assess the information provided by the applicants prior to deciding whether to open an expiry review procedure. The Ombudsman accepted the argument that, logically, this process could require further clarifications resulting in a consolidated version of the request.

14. However, the Ombudsman's assessment was that such clarifications would supplement and not replace the original request. This meant that it would form part of the information 'used' by the Commission when deciding to open an expiry review investigation. The Ombudsman concluded that the Consolidated Request could not be a stand-alone document, as it was submitted outside the legal time limit.

15. The Ombudsman also disagreed with the Commission's stance that Article 5(5) of the Basic Regulation guarantees the confidentiality of the exchanges between the Commission and the applicant during the pre-initiation phase. The Ombudsman agreed with the complainant's argument that that Article was applicable only if, and for as long as, an investigation had not been opened. The complainant's request for access to the Review Request was made after the Commission's decision to initiate the expiry review investigation was taken and published in the Official Journal.

16. In light of the above the Ombudsman made a finding of maladministration in relation to the Commission's refusal to grant the complainant access to the Review Request under the provisions of the Basic Regulation. Thus the Ombudsman made the following recommendation:

"The Commission should grant the complainant access to the non-confidential version of the Review Request."

17. Furthermore, the Ombudsman stated that this refusal had prevented the complainant from ascertaining material essential for its own defence and that as a result, the complainant's rights of defence may have been significantly impaired.  

18. In its detailed opinion on the Ombudsman's recommendation, the Commission stated that once the evidence had been clarified, the totality of that evidence was then submitted to the College of Commissioners for a decision. In the Commission's view, the fact that the non-confidential summary of the review request was based exclusively on the final version of the confidential review request cannot prejudice the rights of defence of the complainant "because the non-confidential summary is an adequate summary of the consolidated confidential review request ... on which the Commission based its decision".

19. The Commission stated that, as the consolidated review request was the result of the clarifications and additional information which "were added to the initial version of" the request, this meant that the consolidated version contained the essential elements of the original request which justified the initiation of the review. Thus, the Commission concluded that "access to the consolidated version of the expiry review request means that access was also granted to all pertinent information that was already contained in the initial version of the request". Ultimately, the Commission disagreed with the Ombudsman's finding of maladministration but decided that it would nonetheless follow the Ombudsman's recommendation and grant access to the non-confidential version of the initial request for expiry review.

20. The complainant then submitted observations on the Commission's response. It pointed out that the Commission had still not granted access to the non-confidential version of the initial Review Request more than six weeks after the Commission had submitted its detailed opinion on the recommendation. The complainant also expressed its general dissatisfaction with the manner in which the Commission had handled the request for access to the initial Review Request and with the Commission's repeated requests for extensions of deadlines during the Ombudsman's investigation.

The Ombudsman's assessment after the recommendation

21. The Ombudsman regrets the delays on the part of the Commission during this investigation and its disagreement with the Ombudsman's finding of maladministration. However, the Ombudsman is satisfied with the overall outcome of the case, as the Commission has agreed to disclose the non-confidential version of the Review Request. Furthermore, the Ombudsman has no reason to believe the Commission will not disclose the document once her decision has been issued. The Ombudsman therefore considers that the Commission has accepted her recommendation.

Conclusion

On the basis of the inquiry into this complaint, the Ombudsman closes it with the following conclusion:

The Commission has accepted the Ombudsman's recommendation. The Ombudsman trusts that the Commission will disclose the non-confidential version of the initial Review Request without further delay.

The complainant and the Commission will be informed of this decision.

Emily O'Reilly

Strasbourg, 17/03/2016

 

[1] Council Regulation (EC) No 2022/95 of 16 August 1995 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia, OJ 1995 L 198, p. 1, amended on several occasions since.

[2] OJ 2013 C 2000, p. 12.

[3] Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European community, OJ L 343, 22.12.2009, p. 51.

[4] The Ombudsman nevertheless informed the complainant, from the outset, that her assessment would not concern the sufficiency of the evidence provided by the Union industry in order to trigger the expiry review procedure, nor the point at which such sufficiency was achieved. This would require extensive and highly specialised knowledge of the ammonium market in the EU and Russia, which the Ombudsman does not possess.

[5] For further information on the background to the complaint, the parties' arguments and the Ombudsman's inquiry, please refer to the full text of the Ombudsman's recommendation available at: http://www.ombudsman.europa.eu/cases/draftrecommendation.faces/en/60393/html.bookmark