On 4 February 2016, the European Court of Justice issued a landmark ruling in Joined Cases C659/13 and C34/14 (Clarks & Puma) by invalidating the anti-dumping duties paid on imports of certain footwear from China and Vietnam from 2006 until 2011. Between 2006 and 2011 the EU imposed anti-dumping duties on footwear from China and Vietnam of 16.5% and 10% respectively. The European Court of Justice has now confirmed that the Regulations imposing the duties are invalid in so far as the European Commission did not examine the Market Economy Treatment and Individual Treatment claims duly filed by certain cooperating Chinese and Vietnamese footwear exporters. The court found that the Commission was under a legal obligation to examine these claims and its failure to do so led the Court to conclude that the ‘footwear Regulations’ were invalid where imports from those suppliers are concerned. The invalidity of the Regulations effectively extinguishes the original debt and allows importers who have made duly substantiated claims within the legal time limits to continue these reimbursement proceedings. VVGB lawyers Edwin Vermulst and Juhi Sud represent Puma and a coalition of 25 footwear brands and importers claiming reimbursement of the AD duties on the same legal grounds, many of whom had suppliers treated identically to the litigants in these cases.
VVGB lawyers Edwin Vermulst and Juhi Sud obtained a zero duty for their client Chia Far in the EU anti-dumping proceeding concerning stainless steel cold-rolled flat products from China and Taiwan. The definitive determination was published in the EU’s Official Journal on 27 August 2015 and a copy is attached.
On 12 June 2015, the Investment Treaty Forum of the British Institute for International and Comparative Law (BIICL) organized a meeting on ‘Europe as an Investment Treaty Actor’ in Stockholm, in cooperation with the Arbitration Institute of the Stockholm Chamber of Commerce, Mannheimer Swartling and Uppsala University.
This meeting brought together speakers from government, business, academia and civil society to examine the European Union as an investment treaty actor. It included a keynote dialogue among members of the Swedish and European Parliament which discussed the political context, as well as panels looking at the role of the European Commission in shaping the EU’s investment treaties and the substance of the deals which Europe is negotiating. Freya Baetens was a speaker on the latter panel, putting forward a proposal for a European Most-Favoured-Nation Clause.
Among the central questions raised by this meeting was whether the investment chapters in Europe’s treaties with Canada, Singapore and the United States (TTIP) are likely to be good for European economic growth or whether they are more likely to expose Europe and its Member States to a future of litigation from foreign investors.
For more information see: http://www.biicl.org/event/1109
VVGB partner Benjamin Haberkorn acted as legal advisor to the EURO-DIESEL management and minority shareholder with respect to a EUR 68 million investment by 3i.
On 19 May 2015 the EU published the outcome of its nine months’ investigation into the circumvention of the anti-dumping measures applicable to Bicycles originating in China.
While the 48.5% duty applicable to Chinese bicycles was extended to Cambodia, Pakistan and the Philippines, the two Cambodian producers A and J and Smart Tech and the Philippines’ producer Procycle, represented by VVGB lawyers Edwin Vermulst, Juhi Sud and Simon Van Cutsem, all three received exemptions from this duty on the basis of the Commission case team finding that none of them had engaged in circumvention practices.
As a result, the 48.5% anti-dumping duty will not apply to them. The Commission Regulation with the findings is attached.
Read more : 20150519 Bicycles AC
VVGB partner Benjamin Haberkorn and associate Deeliah Chakowa advised Belgian market leader in optimizing digital advertising campaigns Semetis’ founding shareholders in the sale of a majority stake to Omnicom Media Group (OMG).
VVGB clients Van Miert and Mieki Hunsel obtained an exemption from anti-dumping duties imposed on frozen bone-in portions of fowls of the species gallus domesticus by the International Trade Administration of South Africa (ITAC). On 27 February 2015 South Africa imposed definitive anti-dumping duties ranging between 3.86% and 73.33% on imports of frozen bone-in chicken portions originating in or imported from Germany, the Netherlands and the United Kingdom. ITAC calculated a margin of minus 1.08% (hence a negative dumping margin) for VVGB’s clients Van Miert and Mieki Hunsel, which are therefore exempt from the duties. Dumping occurs when the export price is lower than the normal value (usually the price in the exporting country). The difference between normal value and export price expressed as a percentage constitutes the dumping margin. A negative dumping margin occurs when the export price is actually higher than the normal value. It is essentially a finding of no dumping. Pluimveeslachterij C. Van Miert BV and Pluimveeslachterij Mieki Hunsel BV were assisted by VVGB partner Edwin Vermulst and senior associate Simon van Cutsem.
The report of the final determination can be consulted in the attached document Report-No-492.
On 26 February 2015, the Brussels Court of Appeal rendered a significant judgment in the field of private enforcement of competition rules in Belgium. Base/KPN Group and Mobistar had initiated a damage action for abuse of dominance against the incumbent mobile operator Belgacom. The Court of Appeal of Brussels confirmed that in the late 90s – early 2000s Belgacom held a dominant position on the retail market for mobile telephony in Belgium and possibly engaged in several abusive practices vis-à-vis Mobistar and Base/KPN Group (loyality rebates, predatory pricing, marging squeeze and exploitation of network offices).The Court firmly stated that a finding of ‘abuse’ would as such give rise to ‘fault’ giving rise to tort liability.The Court of Appeal enlarged the number of abuses that must be examined by the appointed experts.The final expert is due by the end of March 2016.
VVGB partners Anne Vallery and Yves Van Gerven acted as counsel to Mobistar in connection with these proceedings.
Further information is available in Mobistar’s press release: http://corporate.mobistar.be/go/en/media_center/news/news_details.cfm?news_id=656
Pursuant to EU Regulation 396/2005 on maximum residue levels (MRLs) of pesticides in or on food or feed, the European Commission adopted a temporary MRL for for the disinfectantsbenzalkonium chloride (“BAC”, “ADBAC” or also “BKC”) and didecyldimethylammonium chloride (“DDAC”). See Commission Regulation 1119/2014 of 16 October 2014 which entered into force on 12 November 2014.
The article in Chemical Watch sets out that this act from the Commission triggered a number of questions from industry on MRL-setting for biocides. Being lawyer to the European Quat Consortium (“EQC”), Peter Kugel commented that it is very necessary to sort out the issue on MRL-setting for biocides once and for all. To obtain clarity and a final ruling on the legal basis in that respect it is surely an opportunity for industry to have recourse to an action for annulment against Commission Regulation 1119/2014. However, even if such a legal challenge would be successful, it would in his view most likely represent a Pyrrhic victory for the Quat industry, because at that time Regulation 1119/2014, which only sets a temporary limit, will normally be succeeded by a new MRL which at that time will be established according to then hopefully agreed methods and procedures for biocides. Peter Kugel considers that it cannot be that this kind of complicated regulatory issues at the interface of diverging legal frameworks can only be solved by means of litigation before the European Courts. A fair dialogue with the regulators in order to solve issues pragmatically, yet legally sound, is surely preferable for all the parties involved. Peter Kugel expressed that industry can at this stage only trust that it my encounter some support from the regulators in this respect.
The Chemical Watch article is available here with its permission.
On 13 May 2014, Marco Bronckers spoke at the conference ‘Navigating the legislative and regulatory maze of the TTIP’, organized by the Centre for European Policy Studies in Brussels. http://www.ceps.be/event/navigating-legislative-and-regulatory-maze-ttip