Commission Implementing Regulation (EU) 2022/2390 of 7 December 2022 amending the definitive countervailing duty imposed on imports of certain rainbow trout originating in Türkiye by Implementing Regulation (EU) 2021/823 following a partial interim review pursuant to Article 19 of Regulation (EU) 2016/1037 of the European Parliament and of the Council

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EU) 2016/1037 of the European Parliament and of the Council of 8 June 2016 on protection against subsidised imports from countries not members of the European Union (1) (‘the basic Regulation’), and in particular Article 19 thereof,

Whereas:

(1) By Commission Implementing Regulation (EU) 2015/309 (2), the Commission imposed definitive countervailing duties on imports of certain rainbow trout originating in Türkiye (‘the original investigation’).

(2) On 4 June 2018, following a partial interim review (‘the first interim review’) concerning subsidisation of all exporting producers in accordance with Article 19 of the basic Regulation, by Commission Implementing Regulation (EU) 2018/823 (3) (‘the first interim review Regulation’), the Commission decided to maintain the measures as established in the original investigation.

(3) On 15 May 2020, following a partial interim review (‘the second interim review’) in accordance with Article 19 of the basic Regulation, by Commission Implementing Regulation (EU) 2020/658 (4) (‘the second interim review Regulation’), the Commission amended the level of the countervailing duty for one exporting producer.

(4) On 25 May 2021, following an expiry review in accordance with Article 18 of the basic Regulation (‘the expiry review’), the Commission extended the measures as established in the original investigation (and as amended by Commission Implementing Regulation (EU) 2020/658) for a further five years by Commission Implementing Regulation (EU) 2021/823 (5) (‘the expiry review Regulation’).

(5) The definitive countervailing duties currently in force range from 1,5 % to 9,5 %.

(6) The Commission decided on its own initiative to initiate a partial interim review, having sufficient evidence that the circumstances with regard to subsidisation on the basis of which the existing measures were imposed had changed, and that these changes were of a lasting nature.

(7) More specifically, significant changes on the structure and the terms of implementation of the subsidies granted by the GOT to producers of rainbow trout have taken place since 2016. These changes appeared to have led to a decrease of the direct subsidies received by Turkish rainbow trout producers.

(8) The Commission considered that there was sufficient evidence that the circumstances with regard to subsidisation had changed significantly, that the changes are of a lasting nature and therefore that the measures should be reviewed for all exporting producers.

(9) Having determined, after informing the Member States, that sufficient evidence existed for the initiation of a partial interim review, the Commission announced the initiation of a review under Article 19 of the basic Regulation by a Notice published in the Official Journal of the European Union on 20 September 2021 (6) (‘the Notice of Initiation’).

(10) The investigation of subsidisation covered the period from 1 January 2020 to 31 December 2020 (‘review investigation period’ or ‘RIP’).

(11) In the Notice of Initiation, interested parties were invited to contact the Commission in order to participate in the investigation. In addition, the Commission specifically informed the Union industry, the known exporting producers and the Government of Türkiye (‘GOT’) about the initiation of the investigation and invited them to participate.

(12) All parties were invited to make their views known, submit information and provide supporting evidence within the time limits set out in the Notice of Initiation. Interested parties had also the opportunity to comment on the initiation of the investigation and to request a hearing with the Commission and/or the Hearing Officer in trade proceedings.

(13) In the Notice of Initiation, the Commission stated that it might sample exporting producers in accordance with Article 27 of the basic Regulation.

(14) To decide whether sampling is necessary and, if so, to select a sample, the Commission asked all exporting producers in Türkiye to provide the information specified in the Notice of Initiation.

(15) In addition, the Commission asked the Mission of the Republic of Türkiye to the European Union to identify and/or contact other exporting producers, if any, that could be interested in participating in the investigation.

(16) Thirteen exporting producers and groups of exporting producers in Türkiye provided the requested information and agreed to be included in the sample. The total declared export volume to the Union by these companies of certain rainbow trout during the review investigation period accounted for 100 % of exports from Türkiye to the Union.

(17) In accordance with Article 27(1) of the basic Regulation, the Commission selected a sample of three exporting producers or groups of exporting producers on the basis of the largest representative volume of exports to the Union which could reasonably be investigated within the time available. The sample accounted for more than 60 % of the declared export sales to the Union during the review investigation period.

(18) In accordance with Article 27(2) of the basic Regulation, all known exporting producers concerned, and the Turkish authorities were consulted on the selection of the sample.

(19) The Commission received comments from the cooperating exporters Selina Balık İşleme Tesisi İthalat İhracat ve Ticaret A.Ş, (‘Selina Balik’) and Kılıç Deniz Ürünleri Üretimi İhracat İthalat ve Ticaret A.Ş. (‘Kilic Deniz’) requesting to be included in the sample.

(20) The Commission dealt with these requests in a Note that was placed on the open file on 22 October 2021. As the Note explained, both requests were denied because the sample had been selected on the basis of the largest representative quantity of exports that could reasonably be investigated in the time available.

(21) Selina Balik and Kilic Deniz were not among the largest exporting producers and thus adding these companies to the sample would also not have increased significantly the representativity of the sample, but could have prevented the timely completion of the investigation.

(22) On 11 November 2021, the Danish Aquaculture Organisation (‘the DAO’) representing Union producers of rainbow trout sent a submission requesting that the Commission include in the sample smaller trout farmers from Türkiye, as the subsidy schemes had changed to benefit smaller farmers more than larger ones. The DAO noted in this respect that the changes to the direct subsidy schemes, in particular the imposition of production caps, have effectively increased the subsidisation of smaller farmers.

(23) The DAO requested the Commission thus to change the sample selection methodology, away from the largest quantity of exports that could reasonably be investigated, and to instead select a statistically valid sample that in their view would accurately represent the diversity of Turkish trout producers. The DAO, however, did not propose any specific cooperating exporter that should be included in the sample.

(24) The Commission rejected this request since the sampling information requested from the exporters did not contain information that would allow the Commission to select the a sample in that manner.

(25) The changes in the direct subsidy schemes, as set out in section 4 below, were reflected in the calculation of the benefit.

(26) The Commission received two requests for an individual amount of countervailable subsidisation following the initiation of the investigation under Article 27(3) of the basic Regulation. These requests were made in the form of a completed questionnaire reply.

(27) The first request came from the company Selina Balik.

(28) The Commission accepted their request for individual examination because it was already reviewing the company’s situation in a parallel interim review concerning the same product. This interim review was initiated on 5 February 2021 (7). However, Selina Balik withdrew their request for review and the Commission then terminated it on 10 March 2022 (8).

(29) Selina Balik had submitted a full questionnaire reply with the same review investigation period as the RIP (calendar year 2020) of this interim review. The company agreed that the information provided was to be used in the current review. The Commission had already largely checked the information submitted and only the remote cross-check had not been performed.

(30) Therefore, full information was already available at the initiation of this investigation and it could not be considered too burdensome to investigate Selina Balik’s situation for the purpose of the current review.

(31) The second request came from the company Kilic Deniz.

(32) The situation of Kilic Deniz was different from the one of Selina Balik. No questionnaire reply was available in advance and therefore collecting the necessary information and the analysis of the data provided would have been carried out completely during this investigation and in addition to the collection and analysis of data from the sampled exporting producers.

(33) Therefore, the Commission considered that accepting this request would be unduly burdensome and would indeed prevent completion of the investigation in good time. This request for individual examination was therefore not accepted.

(34) Following disclosure, Kilic Deniz submitted comments that their request for individual examination should have been accepted arguing that it was based on the same grounds as that of the company Selina Balik. Kilic Deniz also stated that the fact that Selina Balik had already submitted information in a parallel ongoing investigation should not be taken into consideration, as this would be discriminatory, and that for the current partial interim review the Commission received the questionnaire replies from Kılıç Deniz and Selina Balık at the same time.

(35) As explained in recital (32), the Commission considered that the situation of both companies was different and it was therefore also justified to treat both companies differently.

(36) The fact that there was a parallel review ongoing looking at the individual situation of Selina Balik that covered the same RIP as the current review enabled the Commission to be in the possession of the same dataset that would have been required in the current review already at an early stage.

(37) As set out in recital (29) Selina Balik and their related companies had already submitted a questionnaire reply in their own interim review and a deficiency process on the data provided had been completed. The deficiency process involved significant resources as the questionnaire reply needed to be examined in detail and the deficient points were identified and resolved with the companies.

(38) Since Selina Balik authorised the Commission to use the data submitted in the parallel interim review, the Commission was able to take those data fully into consideration in this review. The Commission therefore rejected the claim of discriminatory treatment.

(39) Kilic Deniz further claimed that the Commission should have considered that their company had already experience in cooperating with anti-subsidy investigations, as it participated in the original investigation, in the second interim review and in the subsidy investigation regarding imports of sea bass and sea bream from Türkiye in 2015 which was terminated as the subsidy scheme concerned was withdrawn.

(40) As regards this claim, the Commission noted that granting individual examination relates to the burden on the investigation, not the burden or experience of the company requesting this treatment.

(41) Kilic Deniz also commented that they were the fourth largest exporting producer of Türkiye during the RIP and that it had more export sales to the European Union than Selina Balık, which should have been considered by the Commission in their choice for individual examination.

(42) The Commission rejected this comment, as this is not a condition for the granting of individual examination, but rather whether a company should be included in the sample of exporters. As explained in recital (17) above, that sample had to be limited.

(43) Kilic Deniz also requested that their amended duty of 1,5 % should be in force for five years from the date of the amendment, and therefore could not be changed by this review.

(44) The Commission noted that Article 18(1) of the basic Regulation sets out that a definitive countervailing measure shall expire five years from its imposition. The duty levied on imports from Kilic Deniz was imposed on 28 February 2015 and so the five-year period starts from that date.

(45) The second interim review Regulation that updated the individual duty rate of Kilic Deniz from 9,5 % to 1,5 % simply amended the table in Article 2 of the original Regulation and has no effect on the length of the measures that remain in force at a particular level. The request was therefore rejected.

(46) Kilic Deniz also commented that their existing individual duty of 1,5 % resulting from the second interim review should be maintained regardless of the results of the current interim review, because the grounds for the initiation of both reviews were the same and the Commission has not shown that the changed circumstances with regard to Kilic Deniz in the current RIP were of a lasting nature to justify a change to its duty level.

(47) The Commission also rejects this claim of Kilic Deniz that the grounds for review of this investigation match those of the review that led to the second interim review Regulation.

(48) As set out in section 4 of their Notice of Initiation (9), the grounds for the second interim review are specific to Kilic Deniz and their level of benefit received. The current review was initiated based on changes that affected all producers in Türkiye.

(49) In recitals (285) onwards, the Commission has carried out an analysis of the lasting nature of the changed circumstances in relation to the investigation period of the original Regulation.

(50) Such analysis is carried out on a countrywide basis, which includes also the situation of the individual exporting producers that are subject to subsidies received from the GOT. The argument that the Commission did not consider the individual situation of Kilic Deniz was therefore rejected.

(51) Kilic Deniz also alleged that the Commission is obliged to determine an individual margin of subsidy for each known exporting producer, as the Subsidies and Countervailing Measures Agreement of the WTO does not have a sampling provision.

(52) The Commission rejects this allegation as sampling is clearly provided for in Article 27 of the basic Regulation.

(53) During the investigation, the Commission also made clear to all interested parties that all cooperating non-sampled exporters would receive the average duty if not granted individual examination.

(54) In order to obtain the information deemed necessary for its investigation, the Commission sent questionnaires to the three sampled exporting producers and the GOT. Questionnaire replies were received from the three sampled exporting producers and the GOT. Questionnaire replies were also received from the two exporting producers requesting individual examination.

(55) The Commission sought and verified all the information deemed necessary for the determination of subsidisation.

(56) Due to the outbreak of the COVID-19 pandemic and the consequent measures taken to deal with it (10), the Commission was however unable to carry out verification visits at the premises of all companies pursuant to Article 26 of the basic Regulation.

(58) On 25 August 2022 the Commission disclosed the essential facts and considerations on the basis of which it intended to amend the countervailing duties in force (‘the final disclosure’). All parties were granted a period within which they could make comments on the disclosure.

(59) The comments made by interested parties were considered by the Commission and taken into account where appropriate. The parties who so requested were granted a hearing.

(60) Following the receipt of the comments by interested parties, the Commission adapted certain essential facts and considerations and an ‘additional final disclosure’ was sent to all interested parties on 23 September 2022. Parties were given a time period to comment.

(61) The GOT requested consultations with the Commission services in accordance with Article 11(10) of the basic Regulation and these were held on 4 October 2022.

(62) Following the comments received from interested parties on the additional final disclosure, the Commission corrected two errors as described in recitals (306) and (135) and the resulting changes in the calculations were disclosed to the relevant interested parties on 6 October 2022. Parties were given additional time to comment on these changes to their subsidy calculations.

(63) Gumusdoga, Fishark Ozpekler and Selina Balik, in its comments to the second additional final disclosure reiterated their claims already raised in the previous two disclosures. Those claims are addressed in this regulation.

(64) Gumusdoga in addition requested and the Commission accepted a minor update in its turnover, which was subject to the correction as described in recital (306).

(66) During the investigation the Commission became aware of the imports into the EU of peppered smoked trout fillets originating in the Republic of Türkiye. Some of these fillets were imported as product under review on which duties were paid, and some were imported under a different tariff heading (CN code 1604 19 10) on which no duties have been levied.

(67) Both the exporting producers in Türkiye and the Union industry confirmed that they considered that peppered smoked trout fillets were included in the product scope of this and previous investigations.

(68) The investigation has also shown that the simple addition of pepper does not deprive the smoked fillet of its main basic characteristics. Based on this and the fact that there was an agreement between the exporters and the Union industry on the product scope, the Commission concluded that ‘peppered smoked fillets’ are indeed included in the product scope.

(69) On this basis the Commission considers that peppered smoked trout fillets are part of the product under review as ‘smoked’. For the avoidance of doubt, duties will be levied on imports of peppered smoked trout fillets if declared under customs code CN 1604 19 10 (TARIC 1604191011).

(70) The exporter Lezita Balık A.Ş, TARIC additional code B968, informed the Commission on 9 June 2021 that it had changed its name to Abalıoglu Balik ve Gıda Ürünleri Anonim Şirketi.

(71) The company requested the Commission to confirm that the change of name does not affect the right of the company to benefit from the anti-subsidy duty rate applied to it under its previous name.

(72) The Commission examined the information supplied and concluded that the change of name was properly registered with the relevant authorities (11), and did not result in any new relationship with other groups of companies which were not investigated by the Commission.