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Recommendation of the European Ombudsman in the inquiry into complaint 577/2014/AN against the European Commission
Case 577/2014/MDC - Opened on Friday | 02 May 2014 - Recommendation on Friday | 26 June 2015 - Decision on Thursday | 17 March 2016 - Institution concerned European Commission ( Draft recommendation accepted by the institution )
Made in accordance with Article 3(6) of the Statute of the European Ombudsman
The case concerns the European Commission's refusal to grant the complainant, an interested party, access to the Union industry's initial request to extend anti-dumping duties on ammonium products from Russia. The Ombudsman inquired into the issue and found that the Commission's refusal was not grounded in light of the applicable provisions of the anti-dumping Regulation and may have impaired the complainant's rights of defence in that procedure. She thus recommended to the Commission that it disclose the relevant request.
The background to the complaint
1. In 1995, the EU established anti-dumping duties on ammonium nitrate from Russia. The measures were due to expire on 13 July 2013, unless an expiry review established that this might result in a continuation or recurrence of dumping and injury. On 28 March 2013, the Commission received a review request (the ‘Review Request’) on behalf of the Union producers. On this basis, in July 2013 the Commission initiated an expiry review procedure through the publication of a Notice of Initiation in the Official Journal.
2. The complainant, an interested party in the procedure, requested access to the Review Request under Article 6(7) of the Antidumping Regulation (the 'Basic Regulation'), which provides 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 demand 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." The complainant made the same request two more times, and the Commission refused to grant it access on each occasion. The complainant also discussed the issue with the Hearing Officer of the Commission's Directorate-General for Trade, who took a similar view.
4. Consequently, the complainant came to the European Ombudsman in search of redress.
5. The Ombudsman opened an inquiry into the complainant's allegations that the Commission (i) did not act 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.
6. In addition, in the letter opening this inquiry the Ombudsman put three questions to the Commission, namely (i) why the Notice of Initiation refers 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.
7. 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.
8. The Ombudsman's recommendation takes into account the arguments and opinions put forward by the parties.
Alleged wrong denial of access to the Review Request leading to a violation of the rights of defence, and related claim
Arguments presented to the Ombudsman
9. The Commission's position is that the Review Request is the document which began the review process, as stated in the Notice of Initiation. For the Commission, the Review Request fulfilled the definition of the Basic Regulation, in that it contained documented allegations concerning the likelihood of dumping and recurrence of injury. The clarification procedure which followed it was necessary for the Commission to satisfy itself that "that there was sufficient evidence on the file which wold justify the initiation of a review investigation". The purpose of the three-month period allowed "for administrative convenience" is precisely to ensure that the Commission has had sufficient time available to decide whether an expiry review should be initiated, after requesting the necessary clarifications. Therefore, the Commission stated, it is the Review Request "together with the subsequent clarifications presented as a consolidated version that formed the basis of... [the] opening of the investigation."
10. With regard to the complainant's rights of defence, the Commission considered that "the complainant as an interested party was given access to the complete set of non-limited information submitted by the applicant to fully exercise its rights of defence”. However, the exchanges between the Commission and the applicants prior to the initiation of the investigation are restricted to these parties only. This is so, in the Commission's view, because only the application on which the Commission takes a decision - in this case, the Consolidated Request- becomes part of the record to be shared with other interested parties, and this only once an investigation is opened. The Commission believed that the Hearing Officer had duly addressed and clarified the complainant's concerns regarding the sufficiency of the evidence contained in the Review Request, in particular by confirming that the said request had the necessary level of support from the Union industry.
11. The complainant argued that the Review Request was as a matter of fact used in the investigation. The Notice of Initiation clearly refers to the Review Request as a basis for investigation. On the other hand, if it was not used, then the review procedure is unlawful, since the Consolidated Request was lodged on 14 June 2013, that is, outside the legal deadline imposed by the Basic Regulation, which was on 13 April 2013.
12. In addition, the complainant argues that the Review Request is relevant for the presentation of its case.Only by examining the Review Request on the basis of which the expiry review was initiated can the complainant (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 investigation, (iii) compare the Review Request with subsequent versions of it, 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. Consequently, the complainant believes that the Commission's failure to provide access to the Review Request undermines its rights of defence.
The Ombudsman's assessment leading to a recommendation
13. Article 6(7) of the Basic Regulation provides that interested parties “may, upon written request, inspect all information made available by any party to an investigation, ... which is relevant to the presentation of their cases and not confidential within the meaning of Article 19, and ... is used in the investigation” (emphasis added). The issue, therefore, is whether the Review Request fell under this definition, that is to say, whether the Review Request was ‘used’ in the investigation. The Commission does not dispute that the complainant is a person that was entitled to invoke Article 6(7) of the Basic Regulation.
14. Article 11(2) of the Basic Regulation provides as follows:
“A definitive anti-dumping measure shall expire five years from its imposition or five years from the date of the conclusion of the most recent review which has covered both dumping and injury, unless it is determined in a review that the expiry would be likely to lead to a continuation or recurrence of dumping and injury. Such an expiry review shall be initiated on the initiative of the Commission, or upon request made by or on behalf of Community producers, and the measure shall remain in force pending the outcome of such review.
An expiry review shall be initiated where the request contains sufficient evidence that the expiry of the measures would be likely to result in a continuation or recurrence of dumping and injury. (…).
In carrying out investigations under this paragraph, the exporters, importers, the representatives of the exporting country and the Community producers shall be provided with the opportunity to amplify, rebut or comment on the matters set out in the review request, and conclusions shall be reached with due account taken of all relevant and duly documented evidence presented in relation to the question as to whether the expiry of measures would be likely, or unlikely, to lead to the continuation or recurrence of dumping and injury.
A notice of impending expiry shall be published in the Official Journal of the European Union at an appropriate time in the final year of the period of application of the measures as defined in this paragraph. Thereafter, the Community producers shall, no later than three months before the end of the five-year period, be entitled to lodge a review request in accordance with the second subparagraph. A notice announcing the actual expiry of measures pursuant to this paragraph shall also be published.” (emphasis added)
15. It follows clearly that the Basic Regulation lays down two cumulative conditions for the initiation of an expiry review on the basis of a request made by or on behalf of the Union producers. First, the request must be formally lodged no later than three months before the end of the five-year period. Second, 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.
16. The Ombudsman agrees that the three-month period is established for the administrative convenience of the Commission, which needs to assess the information provided by the applicants prior to deciding whether it should open an expiry review procedure. Logically, the Commission's verifications during this process may involve requesting clarifications and even additional information from the applicants, thus leading to consolidated review requests.
17. However, these clarifications and additional information will not replace, but supplement the content of the original Review Request. Consequently, the latter will necessarily be used by the Commission within the meaning of Article 6(7) of the Basic Regulation when it decides to open an expiry review investigation. In fact, the Commission seems to admit this when it states, in the opinion, that it was the Review Request "together with the subsequent clarifications presented as a consolidated version that formed the basis of... [the] opening of the investigation."
18. In any event, it is clear that the Commission could not have merely used the Consolidated Request as a stand-alone document to decide on the opening of the expiry review investigation, given that this request was lodged after the expiry of the deadline set out in Article 11(2) of the Basic Regulation.
19. Therefore, the Commission should have granted the complainant access to the Review Request, that is, to the non-confidential version of it.
20. In addition, the Ombudsman disagrees with the Commission's stance that Article 5(5) of the Basic Regulation, which provides that "[t]he authorities shall avoid, unless a decision has been made to initiate an investigation, any publicising of the complaint seeking the initiation of an investigation…" guarantees the confidentiality of the exchanges between itself and the applicant during the pre-initiation phase. As the complainant pointed out, that Article is applicable only if, and for as long as, an investigation has not been opened ("unless..."). 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.
21. In light of the above, the Ombudsman concludes that the Commission's refusal to grant the complainant access to the Review Request was contrary to the provisions of the Basic Regulation and constituted an instance of maladministration. She therefore makes a corresponding recommendation below, in accordance with Article 3(6) of the Statute of the European Ombudsman.
22. Moreover, this refusal did not allow the complainant to ascertain material essential for its own defence, such as whether the Review Request indeed contained sufficient evidence, or was submitted by the appropriate proportion of EU producers, or whether the Consolidated Review contained new material which did not flow from the initial evidence submitted with the Review Request and, thus, could not be accepted. The complainant's rights of defence may thus have been significantly impaired.
The Commission should grant the complainant access to the non-confidential version of the Review Request.
 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 L 198, 23.8.1995, p. 1, amended on several occasions since.
 OJ 2013 C 200, p.12.
 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.
 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.
 It is not disputed that the first condition is fulfilled in this case. The impending expiry of the measures was 13 July 2013, thus the Review Request dated 28 March 2013 was lodged within the deadline.
 In accordance with Articles 5(11) and 6(7) of the Basic Regulation, which require that only information that is not confidential be shared with the interested parties, applicants must provide the Commission with a non-confidential version of their application.
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