1. Anti-dumping measures on certain leather footwear remain in place for another 15 months

In previous editions of this newsletter, we discussed the expiry review proceedings concerning certain footwear with leather uppers originating in the People’s Republic of China (PRC) and Vietnam. After an Anti-Dumping Advisory Committee meeting in November 2009, it appeared that 15 out of 27 Member States were opposed to an extension of the anti-dumping measures. This voting ratio changed during the course of December 2009 as certain Member States altered their position in this case. The Council took a final vote on December 22, 2009. On December 30, 2009, Council Regulation no. 1294/20098 was published. The outcome of the above proceedings is that anti-dumping measures will continue to remain in place for another 15 months at a respective rate of 16.5 percent9 (PRC) and 10 percent (Vietnam).

  1. Amendment of additional note 1 to chapter 64

Recently, Commission Regulation no. 33/201010, concerning the classification of footwear, was published. The Regulation concerns the amendment of additional note 1 to chapter 64 of the Combined Nomenclature and follows a judgment of the ECJ in case 165/07.11 This case concerned the classification of a sandal of which the upper consisted of multiple materials, including leather fastening straps covered with Velcro strips. The ECJ introduced a “walking test,” requiring a verification of whether or not the materials of an upper provide sufficient support to enable the wearer to walk in the footwear.

In this case, the ECJ inter alia ruled that if the textile material of the sandal’s upper, without the leather sections, fulfils the purpose of an upper, that is to say, provides sufficient support for the foot to enable the wearer to walk in the sandal, the sandal falls within the scope of heading 64.04 (textile). However, if the textile material of the sandal’s upper, without the leather sections, does not fulfill the purpose of an upper, that is to say, does not provide sufficient support for the foot to enable the wearer to walk in the sandal, the sandal is to be classified within heading 64.03 (leather). The ECJ did not specify whether the walking test is to be carried out with or without the fastening straps. The case was referred back to the Danish court to make the necessary findings in this respect.

In order to create a level playing field and to ensure uniform interpretation on the classification among all 27 Member States, additional note 1 to chapter 64 was modified. The following passage now replaces the second sentence of the first paragraph:

“After the removal of reinforcements, the visible material must have the characteristics of an upper and not lining, supporting the foot sufficiently to enable the wearer, with the original fastening systems in place, to walk in the footwear.”.