title: Commission Implementing Regulation (EU) 2020/1406 of 2 October 2020 laying down implementing technical standards with regard to procedures and forms for exchange of information and cooperation between competent authorities, ESMA, the Commission and other entities under Articles 24(2) and 25 of Regulation (EU) No 596/2014 of the European Parliament and of the Council on market abuse (Text with EEA relevance)

text:
                  7.10.2020

                  EN

                  Official Journal of the European Union

                  L 325/7

         COMMISSION IMPLEMENTING REGULATION (EU) 2020/1406
         of 2 October 2020
         laying down implementing technical standards with regard to procedures and forms for exchange of information and cooperation between competent authorities, ESMA, the Commission and other entities under Articles 24(2) and 25 of Regulation (EU) No 596/2014 of the European Parliament and of the Council on market abuse
         (Text with EEA relevance)
         THE EUROPEAN COMMISSION,
         Having regard to the Treaty on the Functioning of the European Union,
         Having regard to Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC (1), and in particular the third subparagraph of Article 24(3) and the third subparagraph of Article 25(9) thereof,
         Whereas:

                     (1)

                     Article 24(2) of Regulation (EU) No 596/2014 requires competent authorities to provide the European Securities and Markets Authority (ESMA) with all necessary information to carry out its duties, in accordance with Article 35 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council (2). Article 25 of Regulation (EU) No 596/2014 requires competent authorities to cooperate and exchange information with each other and with ESMA, with the Commission (in relation to commodities which are agricultural products listed in Annex I to the Treaty), with the Agency for the Cooperation of Energy Regulators (ACER) and national regulatory authorities (in relation to wholesale energy products), and with relevant national and third-country regulatory authorities responsible for related spot markets, including, in relation to emission allowances, the auction monitor and competent authorities, registry administrators, including the Central Administrator, and other public bodies charged with supervision of the greenhouse gas allowance trading scheme.

                     (2)

                     Commission Implementing Regulation (EU) 2018/292 (3) has already established procedures and forms for exchange of information and assistance between competent authorities, pursuant to Article 25 of Regulation (EU) No 596/2014. It is expected that separate rules with regard to cooperation with third-country regulatory authorities responsible for related spot markets will be established. This Regulation should therefore cover for cooperation and for exchange of information with ESMA under Article 24(2) of that Regulation, and cooperation with other entities under Article 25 of that Regulation.

                     (3)

                     Information should normally be exchanged in writing. However, oral communications should be possible in appropriate cases, including in particular before a written request for cooperation or exchange of information is sent, to provide information about that upcoming request for cooperation or to discuss any issues that might make it difficult to carry out that request. In urgent cases, it should also be possible for a request for cooperation to be communicated orally, provided such urgency is not simply due to a delay on the part of the requesting party.

                     (4)

                     A request should contain sufficient information about the subject matter of the cooperation, including the reasons for the request and its context, to enable the requested authority to process the request easily and efficiently. Indicating the facts giving rise to suspicion should not be considered as a precondition for a requesting authority to receive assistance where that requested information is necessary for that authority to fulfil its duties.

                     (5)

                     Where ESMA and ACER jointly specify a secure communication interface to be used by competent authorities and ESMA for exchanging information with ACER and national regulatory authorities, the use of that particular interface should be required for the relevant specified purposes.

                     (6)

                     The procedures and forms for the exchange of information and the provision of cooperation should ensure that any information exchanged or transmitted is kept confidential, and that rules with regard to the processing of personal data and the free movement of personal data are complied with.

                     (7)

                     This Regulation is based on the draft implementing technical standards submitted to the Commission by ESMA.

                     (8)

                     ESMA did not conduct open public consultations on the draft implementing technical standards on which this Regulation is based, nor did it analyse the potential related costs and benefits of introducing the procedures and forms to be used by the authorities and entities to which this Regulation applies as this would have been disproportionate in relation to the scope and impact of those draft implementing technical standards, taking into account that this Regulation would only affect those authorities and entities and would not affect market participants.

                     (9)

                     ESMA has requested the opinion of the Securities and Markets Stakeholder Group established in accordance with Article 37 of Regulation (EU) No 1095/2010,

               HAS ADOPTED THIS REGULATION:

            Article 1
            Scope
            This Regulation shall apply to cooperation and exchanges of information between the following bodies (referred to in this Regulation as ‘specified bodies’) under the following provisions:

                        (a)

                        between competent authorities and ESMA under Article 24(2) or Article 25(1), (5) or (7) of Regulation (EU) No 596/2014;

                        (b)

                        between competent authorities and the Commission under the second subparagraph of Article 25(1) of that Regulation, in relation to commodities which are agricultural products;

                        (c)

                        between competent authorities and the Agency for the Cooperation of Energy Regulators (ACER) or national regulatory authorities under Article 25(3) or (5) of that Regulation, in relation to wholesale energy products;

                        (d)

                        between ESMA and ACER or national regulatory authorities under Article 25(3) and (5) of that Regulation, in relation to wholesale energy products;

                        (e)

                        between competent authorities and relevant national regulatory authorities responsible for related spot markets under the first subparagraph of Article 25(8) of that Regulation;

                        (f)

                        between competent authorities and the entities referred to in points (a) and (b) of the second subparagraph of Article 25(8) of that Regulation, in relation to emission allowances.

            Article 2
            Definition
            For the purposes of this Regulation, ‘electronic means’ are means of electronic equipment for the processing (including digital compression), storage and transmission of data, employing wires, radio, optical technologies, or any other electromagnetic means.

            Article 3
            Contact points

               1.   By 26 November 2020 ESMA shall ask each of the other specified bodies to provide ESMA with details of one or more contact points designated by that body for the purposes of cooperation and exchange of information referred to in Articles 24 and 25 of Regulation (EU) No 596/2014, and to keep ESMA informed of any subsequent changes to those details.

               2.   ESMA shall ask each of the other specified bodies to confirm or update the details provided by them under paragraph 1 at least once a year.

               3.   ESMA shall maintain an up-to-date list of the details provided or updated under paragraphs 1 and 2, together with details of ESMA’s own contact points designated for the purposes of this Regulation, and shall circulate the up-to-date list to each of the other specified bodies.

               4.   The most recent list circulated under paragraph 3 shall be used by the specified bodies for the purposes of cooperation and exchanges of information falling within the scope of this Regulation.

            Article 4
            Means of communication

               1.   Except where otherwise stated in this Regulation, any communications to be made for the purposes of cooperation or exchanges of information falling within the scope of this Regulation shall be made either by post, fax or electronic means.

               2.   When determining the most appropriate means of communication in any particular case, due account shall be taken of confidentiality considerations, the time necessary for correspondence, the volume of material to be communicated and the ease of access to the information.

               3.   Without limiting the generality of paragraph 2, where electronic means are used, the electronic means shall be one that ensures the completeness, integrity and confidentiality of the information during its transmission.

               4.   If ESMA and ACER jointly specify the use of a particular electronic system for communications with ACER and the national regulatory authorities falling within the scope of this Regulation, that system shall be used for the purposes so specified.

            Article 5
            Requests for information or cooperation

               1.   When requesting cooperation or exchange of information falling within the scope of this Regulation, the requesting body shall use the form set out in Annex I and shall:

                           (a)

                           specify details of the information or cooperation that it is seeking; and

                           (b)

                           identify, where appropriate, any issues relating to the confidentiality of any information that may be obtained.

               2.   The requesting body may attach to the request any document or supporting material deemed necessary to support that request.

               3.   In urgent cases, the requesting body may make the request orally. Unless the specified body to whom the oral request is made (‘the requested body’) agrees otherwise, that oral request shall subsequently be confirmed in writing without undue delay.

            Article 6
            Acknowledgement of receipt
            Within the period specified in the written request or in the written confirmation confirming an oral request made in accordance with Article 5 or, where no period is specified, within 10 working days after receipt of that written request or written confirmation, the requested body shall acknowledge receipt to the requesting body. The acknowledgement of receipt shall be made using the form set out in Annex II and shall include, where possible, an indication of the estimated date of reply for responding to the request.

            Article 7
            Reply to a request

               1.   If the requested body requires clarification of a request made in accordance with Article 5, it shall seek that clarification from the requesting body, without undue delay, using any means appropriate, either orally or in writing. The requesting body shall provide the clarification without undue delay.

               2.   In executing a request made in accordance with Article 5, the requested body shall:

                           (a)

                           use the form set out in Annex III;

                           (b)

                           take all reasonable steps within its powers to provide the requested cooperation or information; and

                           (c)

                           act without delay and in a manner which ensures that any necessary regulatory action can proceed expediently taking into account the complexity of the request concerned and whether it is necessary to involve third parties.

               3.   If the requested body is a competent authority who refuses to act on the request, in full or in part, in one of the exceptional circumstances listed in Article 25(2) of Regulation (EU) No 596/2014, it shall inform the requesting body without delay using any means appropriate, either orally or in writing. It shall subsequently confirm its decision in writing, indicating which of those exceptional circumstances it has relied upon for its refusal.

            Article 8
            Procedures for processing pending requests

               1.   Where the requested body becomes aware of circumstances that may lead to its estimated date of reply having to be deferred by more than 10 working days, it shall notify the requesting body without undue delay.

               2.   Where appropriate, the requested body shall provide the requesting body with regular updates on the progress of a pending request, including revised estimates of the targeted date of reply.

               3.   Where the request has been marked as urgent, the requested body shall consult with the requesting body on the frequency of updates that are required.

               4.   The Specified bodies shall cooperate with each another in order to solve any difficulties that may arise in executing a request.

            Article 9
            Unsolicited cooperation or exchange of information

               1.   For the purposes of any cooperation or exchange of information falling within the scope of this Regulation that is not the subject of a specific request, including any subsequent communications relating to it, the form set out in Annex IV shall be used.

               2.   In the case of an exchange of information referred to in Article 25, paragraphs 3, 5 and 8 of Regulation (EU) No 596/2014 falling within the scope of this Regulation, if the competent authority believes that the information should be supplied urgently, it may transmit the information orally provided that the information is subsequently transmitted in writing without undue delay using the form set out in Annex IV.

            Article 10
            Cooperation procedures

               1.   For the purposes of ensuring a coordinated action under Article 25(3) of Regulation (EU) No 596/2014 on cross-border cases involving financial instruments related to wholesale energy products, competent authorities shall participate, when requested to do so by ACER, in a cross-border investigatory group established under Article 16(4), point (c), of Regulation (EU) No 1227/2011 of the European Parliament and of the Council (4).

               2.   For the purposes of ensuring a consistent approach to the enforcement of relevant rules under Regulations (EU) No 596/2014 and (EU) No 1227/2011, irrespective of the existence of a specific case, ESMA and ACER shall consult each other regularly.

               3.   Where ESMA is requested under the second subparagraph of Article 25(6) of Regulation (EU) No 596/2014 to coordinate an investigation or inspection with cross-border effect, ESMA may establish a temporary group on an ad hoc basis to include the competent authorities of the Member States affected by that investigation or inspection.

            Article 11
            Referral to ESMA under Article 25(7)
            Referral to ESMA under Article 25(7) of Regulation (EU) No 596/2014 of a rejection or absence of action within a reasonable timeframe shall be made in writing and shall include:

                        (a)

                        a copy of the request for cooperation or exchange of information and any reply received;

                        (b)

                        the reasons for referring to ESMA the rejection or absence of action.

            Article 12
            Restrictions and permissible uses of information

               1.   When using the forms in the Annexes, specified bodies shall include an appropriate confidentiality warning in accordance with the relevant form.

               2.   The requested body shall not disclose the existence and content of a request for cooperation or exchange of information falling within the scope of this Regulation unless the requesting body consents to such disclosure. Where such consent is not given and where it is not reasonably practicable to comply with the request without disclosing its existence or content, the requesting body shall withdraw or suspend its request until the requesting body is able to provide such consent to disclosure.

               3.   Information received as part of a request for cooperation or exchange of information falling within the scope of this Regulation shall be used by the specified body receiving the information solely for the performance of its duties and the exercise of its functions or for the purposes of securing compliance with or enforcement of Regulation (EU) No 596/2014 or, where applicable, Regulation (EU) 1227/2011, including but not limited to initiating, conducting, or assisting in, criminal, administrative, civil or disciplinary proceedings resulting from a breach of those Regulations.

            Article 13
            Entry into force
            This Regulation shall enter into force on the twentieth day following that 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 Brussels, 2 October 2020.

                  For the Commission

                  The President

               Ursula VON DER LEYEN

            (1)  OJ L 173, 12.6.2014, p. 1.

            (2)  Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ L 331, 15.12.2010, p. 84).

            (3)  Commission Implementing Regulation (EU) 2018/292 of 26 February 2018 laying down implementing technical standards with regard to procedures and forms for exchange of information and assistance between competent authorities according to Regulation (EU) No 596/2014 of the European Parliament and of the Council on market abuse (OJ L 55, 27.02.2018, p. 34).

            (4)  Regulation (EU) No 1227/2011 of the European Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency (OJ L 326, 8.12.2011, p. 1).

            ANNEX I
            Form for a request for assistance
            REQUEST FOR ASSISTANCE

            ANNEX II
            Form for the acknowledgment of receipt of a request for assistance
            ACKNOWLEDGMENT OF RECEIPT OF A REQUEST FOR ASSISTANCE

            ANNEX III
            Form for the reply to a request for assistance
            REPLY TO A REQUEST FOR ASSISTANCE

            ANNEX IV
            Form for the provision of unsolicited exchange of information
            UNSOLICITED EXCHANGE OF INFORMATION


title: Commission Implementing Regulation (EU) 2020/1407 of 6 October 2020 accepting a request for new exporting producer treatment with regard to the definitive anti-dumping measures imposed on imports of ceramic tableware and kitchenware originating in the People’s Republic of China and amending Implementing Regulation (EU) 2019/1198

text:
                  7.10.2020

                  EN

                  Official Journal of the European Union

                  L 325/22

         COMMISSION IMPLEMENTING REGULATION (EU) 2020/1407
         of 6 October 2020
         accepting a request for new exporting producer treatment with regard to the definitive anti-dumping measures imposed on imports of ceramic tableware and kitchenware originating in the People’s Republic of China and amending Implementing Regulation (EU) 2019/1198
         THE EUROPEAN COMMISSION,
         Having regard to the Treaty on the Functioning of the European Union,
         Having regard to Regulation (EU) 2016/1036 of the European Parliament and the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (the ‘basic regulation’) (1),
         Having regard to Commission Implementing Regulation (EU) 2019/1198 of 12 July 2019 imposing a definitive anti-dumping duty on imports of ceramic tableware and kitchenware originating in the People’s Republic of China (2) following an expiry review pursuant to Article 11(2) of Regulation (EU) 2016/1036, and, in particular, Article 2 thereof,
         Whereas,
         A.   MEASURES IN FORCE

                     (1)

                     On 13 May 2013, the Council imposed a definitive anti-dumping duty on imports into the Union of ceramic tableware and kitchenware (‘the product concerned’) originating in the People’s Republic of China (the PRC) by Council Implementing Regulation (EU) No 412/2013 (‘the original regulation’) (3).

                     (2)

                     On 12 July 2019, following an expiry review pursuant to Article 11(2) of the basic Regulation, the Commission extended the measures of the original regulation for another five years by Implementing Regulation (EU) 2019/1198.

                     (3)

                     On 28 November 2019, following an anti-circumvention investigation pursuant to Articles 13(3) and 14(5) of the basic Regulation, the Commission amended Regulation (EU) 2019/1198 by Commission Implementing Regulation (EU) 2019/2131 (4).

                     (4)

                     In the original investigation, sampling was applied for investigating the exporting producers in the PRC in accordance with Article 17 of the basic Regulation.

                     (5)

                     The Commission imposed individual anti-dumping duty rates ranging from 13,1 % to 23,4 % on imports of the product concerned for the sampled exporting producers from PRC. For the cooperating exporting producers that were not included in the sample, a duty rate of 17,9 % was imposed. The cooperating exporting producers not included in the sample are listed in Annex I of Implementing Regulation (EU) 2019/1198 as replaced by Implementing Regulation (EU) 2019/2131. Furthermore, a country-wide duty rate of 36,1 %. was imposed on the product concerned from companies in the PRC which either did not make themselves known or did not cooperate with the investigation.

                     (6)

                     Pursuant to Article 2 of Implementing Regulation (EU) 2019/1198, the Commission may amend Annex I of that Regulation, by granting a new exporting producer the duty rate applicable to the cooperating companies not included in the sample, namely the weighted average duty rate of 17,9 %, where any new exporting producer in the PRC provides sufficient evidence to the Commission that:

                                 (a)

                                 it did not export to the Union the product concerned during the period of investigation on which the measures are based, that is from 1 January 2011 to 31 December 2011 (‘the original investigation period’);

                                 (b)

                                 it is not related to any of the exporters or producers in the PRC which are subject to the anti-dumping measures imposed by the original Regulation; and

                                 (c)

                                 it has actually exported to the Union the product concerned after the end of the original investigation period or has entered into an irrevocable contractual obligation to export a significant quantity to the Union.

               B.   REQUEST FOR NEW EXPORTING PRODUCER TREATMENT

                     (7)

                     The company Liling Yuanmei Ceramic Co., Ltd. (‘Yuanmei’ or the ‘applicant’) submitted a request to the Commission to be granted new exporting producer treatment (‘NEPT’) and hence be subject to the duty rate applicable to the cooperating companies in the PRC not included in the sample, which is 17,9 %. The applicant claimed that it met all three conditions set out in Article 2 of Implementing Regulation (EU) 2019/1198.

                     (8)

                     In order to determine whether the applicant fulfilled the conditions for being granted NEPT, as set out in Article 2 of Implementing Regulation (EU) 2019/1198 (‘the NEPT conditions’), the Commission first sent a questionnaire to the applicant requesting evidence showing that it met the NEPT conditions.

                     (9)

                     Following the analysis of the questionnaire reply, the Commission requested further information and supporting evidence, which was submitted by the applicant.

                     (10)

                     The Commission sought to verify all information it deemed necessary for the purpose of determining whether the applicant met the NEPT conditions. To this end, the Commission analysed the evidence submitted by the applicant in its questionnaire reply, consulting various online databases including Orbis (5) and Qichacha (6) and cross-checking company information with information submitted in previous cases. In parallel, the Commission also informed the Union industry about the applicant’s request and invited it to provide any comments if needed. No comments from Union industry were received.

               C.   ANALYSIS OF THE REQUEST

                     (11)

                     With regard to the condition set out in Article 2(a) of Implementing Regulation (EU) 2019/1198 that the applicant did not export the product concerned to the Union during the period of investigation on which the measures are based, that is from 1 January 2011 to 31 December 2011 (‘the original investigation period’), the Commission established that the applicant did not exist as a company at the time. The Articles of Association of Yuanmei and its business licence date from May 2017. Therefore, the applicant could not have exported the product concerned to the Union during the period of investigation and thus fulfils this condition.

                     (12)

                     With regard to the condition set out in Article 2(b) of Implementing Regulation (EU) 2019/1198 that the applicant is not related to any exporters or producers which are subject to the anti-dumping measures imposed by the original Regulation, the Commission established that Yuanmei is not related to any of the Chinese exporting producers, which are subject to the original anti-dumping measures. According to Qichacha, a Chinese business database, the sole shareholder of Yuanmei, Mr Xingfen Liu, does not own or hold shares in any company dealing with the production, processing, sale or purchase of the product concerned other than Yuanmei itself. Moreover, the Union Industry did not submit any comment regarding potential corporate links with other companies. It also followed that the key company documents setting out Yuanmei’s structure and its articles of association pointed to the applicant having no related companies of any kind. Finally, the examination of Yuanmei’s sales ledger did not raise suspicion of any client related to Yuanmei.. In sum, the Commission did not identify any relationship as defined by Commission Implementing Regulation (EU) 2015/2447 (7). Therefore, the applicant fulfils this condition.

                     (13)

                     With regard to the condition set out in Article 2(c) of Implementing Regulation (EU) 2019/1198, that the applicant has actually exported the product concerned to the Union after the original investigation period or has entered into an irrevocable contractual obligation to export a significant quantity to the Union, the Commission established that the applicant had exported to the Union in 2019, therefore after the original investigation period. The applicant submitted invoices, a packing list, a bill of lading and a receipt of payment for an order placed in 2019 by a company in Spain.

                     (14)

                     Consequently, the Commission concluded that the applicant complies with the condition set out in Article 2 of Implementing Regulation (EU) 2019/1198.

                     (15)

                     Accordingly, the applicant fulfils all three conditions to be granted NEPT, as set out in Article 2 of Implementing Regulation (EU) 2019/1198 and the request should therefore be accepted. Consequently, the applicant should be subject to an anti-dumping duty of 17,9 % for cooperating companies not included in the sample of the original investigation.

               D.   DISCLOSURE

                     (16)

                     The applicant and the Union industry were informed of the essential facts and considerations based on which it was considered appropriate to grant the anti-dumping duty rate applicable to the cooperating companies not included in the sample of the original investigation to Liling Yuanmei Ceramic Co., Ltd. (‘Yuanmei’).

                     (17)

                     The parties were granted the possibility to submit comments. No comments were received.

                     (18)

                     The Regulation is in accordance with the opinion of the Committee established by Article 15(1) of the basic Regulation,

               HAS ADOPTED THIS REGULATION:

            Article 1
            The following company is added to Annex I of Implementing Regulation (EU) 2019/1198 containing the list of cooperating companies not included in the sample:

                        Company

                        TARIC
                        additional code

                        Liling Yuanmei Ceramic Co., Ltd.

                        C556

            Article 2
            This Regulation shall enter into force on the day following that 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 Brussels, 6 October 2020.

                  For the Commission

                  The President

               Ursula VON DER LEYEN

            (1)  OJ L 176, 30.6.2016, p. 21.

            (2)  OJ L 189, 15.7.2019, p. 8.

            (3)  Council Implementing Regulation (EU) No 412/2013 of 13 May 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ceramic tableware and kitchenware originating in the People’s Republic of China (OJ L 131, 15.5.2013, p. 1).

            (4)  Commission Implementing Regulation (EU) 2019/2131 of 28 November 2019 amending Implementing Regulation (EU) 2019/1198 imposing a definitive anti-dumping duty on imports of ceramic tableware and kitchenware originating in the People’s Republic of China following an expiry review pursuant to Article 11(2) of Regulation (EU) 2016/1036 of the European Parliament and of the Council (OJ L 321, 12.12.2019, p. 139).

            (5)  Orbis is a global data provider of corporate information covering more than 220 million companies across the globe. It mainly provides standardised information on private companies and corporate structures.

            (6)  Qichacha is a private, for-profit Chinese-owned database that delivers business data, credit information, and analytics on China-based private and public companies to consumers/professionals.

            (7)  Article 127 of Commission Implementing Regulation (EU) 2015/2447 (OJ L 343, 29.12.2015, p. 558) (the EU Customs Code), stipulates that two persons shall be deemed to be related if one of the following conditions is fulfilled: (a) they are officers or directors of the other person’s business; (b) they are legally recognised partners in business; (c) they are employer and employee; (d) a third party directly or indirectly owns or controls or holds 5 % or more of the outstanding voting stock or shares of both of them; (e) one of them directly or indirectly controls the other; (f) both of them are directly or indirectly controlled by a third person; (g) together they control a third person directly or indirectly; (h) they are members of the same family. Persons who are associated in business with one another in that one is the sole agent, sole distributor or sole concessionaire, however described, of the other shall be deemed to be related only if they fall within the criteria referred to in the preceding sentence.