title: Commission Implementing Regulation (EU) 2020/353 of 3 March 2020 imposing a definitive anti-dumping duty and definitively collecting the provisional duty imposed on imports of steel road wheels originating in the People’s Republic of China

text:
                  4.3.2020

                  EN

                  Official Journal of the European Union

                  L 65/9

         COMMISSION IMPLEMENTING REGULATION (EU) 2020/353
         of 3 March 2020
         imposing a definitive anti-dumping duty and definitively collecting the provisional duty imposed on imports of steel road wheels originating in the People’s Republic of China
         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 of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (1) (‘the basic Regulation’), and in particular Article 9(4) thereof,
         Whereas:
         1.   PROCEDURE

         1.1.   Initiation

                     (1)

                     On 15 February 2019, the European Commission (‘the Commission’) initiated an anti-dumping investigation with regard to imports into the Union of steel road wheels (‘SRW’) originating in the People’s Republic of China (‘the PRC’ or ‘the country concerned’) on the basis of Article 5 of the basic Regulation. It published a Notice of Initiation in the Official Journal of the European Union (2) (‘Notice of Initiation’). The product scope of the investigation was clarified in the notice amending the Notice of Initiation (3).

                     (2)

                     The Commission initiated the investigation following a complaint lodged on 3 January 2019 by the Association of European Wheels Manufacturers (‘EUWA’ or ‘the complainant’) on behalf of producers representing more than 25 % of the total Union production of steel road wheels. The complaint contained evidence of dumping and of resulting material injury that was sufficient to justify the initiation of the investigation.

               1.2.   Registration

                     (3)

                     The Commission did not make imports of the product concerned subject to registration under Article 14(5a) of the basic Regulation, as explained in recital (4) of Commission Implementing Regulation (EU) 2019/1693 (4) (‘the provisional Regulation’). No parties made any comments on this point.

               1.3.   Provisional measures

                     (4)

                     In accordance with Article 19a of the basic Regulation, on 19 September 2019, the Commission provided parties with a summary of the proposed duties and details about the calculation of the dumping margin and the margin adequate to remove the injury to the Union industry. Interested parties were invited to comment on the accuracy of the calculations within three working days. No comments were submitted.

                     (5)

                     On 11 October 2019, the Commission imposed a provisional anti-dumping duty on imports into the Union of steel road wheels originating in the People’s Republic of China by the provisional Regulation.

                     (6)

                     As stated in recital (23) of the provisional Regulation, the investigation of dumping and injury covered the period from 1 January 2018 to 31 December 2018 (‘the investigation period’ or ‘IP’) and the examination of trends relevant for the assessment of injury covered the period from 1 January 2015 to the end of the investigation period (‘the period considered’).

               1.4.   Subsequent procedure

                     (7)

                     Following the disclosure of the essential facts and considerations on the basis of which provisional anti-dumping measures were imposed (‘provisional disclosure’), the complainant, eight importers and/or resellers, and two Chinese exporting producers made written submissions making their views known on the provisional findings.

                     (8)

                     The parties who so requested were granted an opportunity to be heard. A hearing took place with one Chinese exporting producer. No hearing with the Hearing Officer in trade proceedings was requested at that stage.

                     (9)

                     The Commission continued seeking and verifying all the information it deemed necessary for its final findings. When reaching its definitive findings, the Commission considered the comments submitted by interested parties and revised its provisional conclusions when appropriate.

                     (10)

                     The Commission informed all interested parties of the essential facts and considerations on the basis of which it intended to impose a definitive anti-dumping duty on imports into the Union of steel road wheels originating in the PRC (‘final disclosure’). All parties were granted a period within which they could make comments on the final disclosure.

                     (11)

                     One unrelated importer had a hearing with the Commission services on 9 January 2020. On 16 January 2020, one group of Chinese exporting producers had a hearing in the presence of the Hearing Officer concerning the stage following final disclosure.

                     (12)

                     The comments submitted by the interested parties were considered and taken into account where appropriate in this Regulation.

               1.5.   Sampling

                     (13)

                     In the absence of comments concerning sampling, recitals (7) to (18) of the provisional Regulation were confirmed.

               1.6.   Investigation period and period considered

                     (14)

                     In the absence of comments concerning the investigation period and the period considered, recital (23) of the provisional Regulation was confirmed.

               2.   PRODUCT CONCERNED AND LIKE PRODUCT

         2.1.   Claims regarding the product scope

                     (15)

                     Following the publication of the provisional Regulation, several parties pointed at ambiguities in the description of TARIC code 8716909097, i.e. one of the codes subject to provisional measures. These parties asked the Commission to confirm that this code only refers to wheels for road use, and therefore it did not cover wheels for wheelbarrows and hand trucks.

                     (16)

                     The Commission confirmed that this interpretation was correct and that wheels for wheelbarrows and hand trucks do not fall within the scope of this investigation. To ensure clarity, the Commission adjusted the description of the TARIC code in question accordingly. On 29 October 2019, the Commission also published a note to the file informing all interested parties about this adjustment.

                     (17)

                     Right before the publication of the provisional Regulation an unrelated importer requested the exclusion of spare road steel wheels for passenger cars on the grounds that they do not have the same basic technical and physical characteristics as all other products falling within the product scope. This importer argued that spare road steel wheels cannot be used as normal wheels because their speed is limited to 80 km/hour. The party further claimed that the overall production of spare road steel wheels for passenger cars is very small in the Union and even non-existent in the case of the replacement market (as opposed to the Original Equipment Manufacturer or ‘OEM’ segment where wheels are incorporated to the car during the manufacturing process).

                     (18)

                     The Commission dismissed the unrelated importer’s request. The speed limit does not alter the basic technical and physical characteristics of a wheel and the importer did not bring any other evidence showing that such spare road wheels would have technical and physical characteristics different from all other products falling within the product scope of the investigation. Furthermore, the party itself confirmed that there is production of these types of wheels in the Union and therefore competition with imported spare road steel wheels. The fact that these wheels are allegedly not produced and sold by the Union industry in one of the two main distribution channels is irrelevant since the steel road wheels in the replacement market and those sold on the OEM segment have the same basic technical and physical characteristics.

                     (19)

                     Following the publication of the provisional Regulation, a party criticised the fact that the complaint uses the application of a wheel, i.e. wheels used on the road, to determine whether a steel wheel falls within the scope of the investigation or not. Instead, the party proposed speed and load as the distinguishing factor to determine whether a steel wheel is designed to be used on the road and therefore falls within the scope of the investigation. In particular, the party considered that only wheels designed to travel above 50 km/h are designed and built as road wheels. The party reiterated the claim following final disclosure.

                     (20)

                     The Commission considered that this claim did not question the product definition or the scope of the investigation itself, but rather suggests an alternative way to describe steel road wheels. The Commission does however not consider that speed is a relevant factor for defining the product scope, as explained above in recital (18), and therefore dismissed the party’s proposal.

                     (21)

                     One exporting producer complained that the provisional regulation contained neither technical definitions for the products excluded nor procedures for confirming with Union customs officials and the Commission services whether or not certain products were excluded from the scope of measures.

                     (22)

                     The Commission confirmed, however, that the technical definitions of the products excluded and customs procedures already in place were sufficient for the proper application and monitoring of the current anti-dumping measures, and that, at this stage, additional definitions or procedures did not appear to be necessary in this case. This claim was therefore rejected.

                     (23)

                     Following the publication of the provisional Regulation, an unrelated importer submitted that steel wheels for agricultural trailers or semi-trailers with a rim diameter of 16 inches and more (up to 54 inches) should be excluded from the scope of the investigation because they have different physical and technical characteristics than steel wheels for truck trailers or semi-trailers and in term of speed, load capacity and stud holes. It is noted that the provisional Regulation mentioned the exclusion from the scope of the measures wheels for agricultural trailers and other trailed agricultural equipment used in fields with a rim diameter of not more than 16 inches for clarification purposes. However, while this exclusion narrowed the scope of the investigation, it did not change the fact that wheels mainly designed and used for off the road purposes were never covered by the product definition, as explained in recital (24).

                     (24)

                     It is noted that the provisional Regulation provisionally excluded from the scope of the measures wheels for passenger car trailers, caravans, agricultural trailers and other trailed agricultural equipment used in fields, with a rim diameter of not more than 16 inches. Some parties considered that, as a consequence, wheels of agricultural trailers and other trailed agricultural equipment used in fields, with a rim diameter of more than 16 inches would be covered by the scope of the measures. However, the Commission clarified that, by this exclusion, it did not intend to include in the scope of the investigation certain other off the road wheels. Indeed, wheels designed for uses other than on public roads were specifically excluded from the product definition in the Notice of Initiation. This was also the intention of the complainant. Indeed, the open version of the complaint specified that OTR (Off The Road) wheels, i.e. wheels for equipment not normally designed for the road, such as agricultural wheels, wheels for earthmoving and mining equipment and wheels for industrial handling (such as fork lift truck wheels or cranes) are excluded from this complaint. The investigation did not bring to light any reasons to question this exclusion, and thus steel wheels for agricultural trailers or semi-trailers were not included in the scope of the investigation, irrespective of their rim diameters.

                     (25)

                     Following final disclosure, EUWA proposed to add ‘wheels for use in construction vehicles’ in the list of products excluded. The Commission deemed this addition unnecessary given that those wheels were never covered by the product definition. EUWA’s proposal was thus rejected.

                     (26)

                     Following the publication of the provisional Regulation, an unrelated importer submitted that certain wheels for passenger cars for winter tyres should be excluded from the scope of the investigation, namely wheels specially designed for fitting multiple car models. The company claimed that Union producers refused to produce this type of wheels and that such wheels have resource-saving characteristics and serve a minor share of the ‘aftermarket’ or replacement market. The party reiterated the claims following final disclosure.

                     (27)

                     The investigation found that steel wheels for winter tyres – including those fitting multiple car models – have the same basic physical and technical characteristics as other products falling within the product scope of the investigation. The wheel from the unrelated importer is a ‘universal’ passenger car wheel that has a centre hole adapter ring. This latter feature allows using one base wheel for different centre hole diameters by means of different centre hole adapters. The result is the same as a fix centre hole. The product competes with wheels for winter tyres produced by the Union producers and which are distributed both on the OEM and the aftermarket channel. Thus there was no basis for this product type to be excluded from the scope of the investigation. The Commission therefore rejected the unrelated importer’s request.

               2.2.   Conclusion

                     (28)

                     Having taken into account all comments submitted by interested parties after the provisional Regulation, the Commission confirmed that the product definition in recital (42) of the provisional Regulation properly reflected the scope of the investigation. Thus, the product concerned was defined as wheels of steel designed for use on the road, whether or not with their accessories and whether or not fitted with tyres, designed for:

                                 —

                                 Road tractors,

                                 —

                                 Motor vehicles for the transport of persons and/or the transport of goods,

                                 —

                                 Special purpose motor vehicles (for example, fire fighting vehicles, spraying lorries),

                                 —

                                 Trailers or semi-trailers, not mechanically propelled, of the above listed vehicles

                           originating in the PRC, currently falling under CN codes ex 8708 70 10, ex 8708 70 99 and ex 8716 90 90 (TARIC codes 8708701080, 8708701085, 8708709920, 8708709980, 8716909095 and 8716909097) (‘the product concerned’).
                     The following products were excluded:

                                 —

                                 Road wheels of steel for the industrial assembly of pedestrian-controlled tractors currently falling under subheading 8701 10,

                                 —

                                 Wheels for road quad bikes,

                                 —

                                 Wheel centres in star form, cast in one piece, of steel,

                                 —

                                 Wheels for motor vehicles, specifically designed for uses other than on public roads (for example, wheels for agricultural tractors or forestry tractors, for forklifts, for pushback tractors, for dumpers designed for off-highway use),

                                 —

                                 Wheels for passenger car trailers and for caravans, not mechanically propelled, with a rim diameter of not more than 16 inches,

                                 —

                                 Wheels for trailers or semi-trailers, specifically designed for uses other than on public roads (for example, wheels for agricultural trailers and other trailed agricultural equipment used in fields).

               3.   DUMPING

         3.1.   Preliminary remarks

                     (29)

                     As explained in the recitals (43) to (48) of the provisional Regulation, the Commission decided to make use of the provisions of Article 18 of the basic Regulation with respect to one of the sampled Chinese exporting producers. The Commission was not able to reconcile the exporting producer’s audited accounts and tax reports with its reported export sales. Therefore, the Commission found that the information provided was unreliable, triggering the need for the application of Article 18(1) of the basic Regulation to complete the Commission’s determination of the exporting producer’s dumping and injury margin.

                     (30)

                     In its submission after the provisional disclosure, the company in question reiterated its arguments against the application of Article 18(1) of the basic Regulation, already presented in the reply to the letter sent to the company on 19 June 2019 on the possible use of Article 18 of the basic Regulation and during the hearings in the provisional stage of the investigation.

                     (31)

                     Furthermore, the company requested the Commission to resort to Article 18(3) of the basic Regulation rather than Article 18(1) in order to make an individual dumping and injury margin calculation. It based its request on the allegation that the company cooperated to the best of its ability and thus claimed that the information it submitted should not be totally rejected. The company also submitted alternative methodologies to calculate the export price, arguing that those alternatives would allow the Commission to determine an individual dumping and injury margin for the company.

                     (32)

                     More specifically, the company proposed:

                                 (a)

                                 several alternative methods which would allow verification of its reported export transactions against outside sources, such as using data from the Union’s customs authorities or records of their clients in the Union;

                                 (b)

                                 to use as a basis for the export price in the calculation the prices on the domestic VAT invoices issued to an unrelated broker.

                     (33)

                     Additionally, three of the six unrelated Union importers purchasing the product concerned from the company supported in their submissions the proposal to use their import data and to calculate on that basis an individual dumping margin for the Chinese exporting producer in question.

                     (34)

                     In reply to those submissions, the Commission underlined that no new facts were brought to its attention which would change the basic finding, on the basis of the evidence collected during the on-spot verification at the exporting producer’s premises, that the sales transactions to the Union reported by that producer could not be reconciled with its audited accounts and tax reports.

                     (35)

                     The Commission also considered that the provisions of Article 18(3) of the basic Regulation could not assist the exporting producer in the present case since the question before it was not whether the information submitted by the party was not ideal in all respect, but rather that there was fundamental uncertainty over the reliability of the records and information provided to the Commission. There was no way for the Commission to independently verify that data. Accordingly, the Commission was not in possession of the necessary evidence that would allow it to complete its calculations as regards the exporting producer’s dumping and injury margins. Furthermore, and in any event, none of the proposed alternatives would result in the possibility to reconcile the reported sales and cost figures with the official documents verified at the premises of the company in question (audited accounts and tax reports). Moreover, none of the suggested alternatives would ensure that the Commission was provided with the full list of export transactions from the exporting producer concerned during the investigation period. Thus, the Commission could not guarantee that a reasonably accurate finding of dumping or injury margin could be made, absent a complete and verifiable set of export transactions during the investigation period.

                     (36)

                     The information supplied by the company was consequently considered unreliable and accordingly disregarded pursuant to Article 18(1) of the basic Regulation (5).

                     (37)

                     Following the final disclosure, the company reiterated its claim that its export price, necessary for the determination of the dumping and injury margins, could have been established based on the alternative methodologies explained in recitals (31) to (33). Furthermore, the company noted that the Court in EBMA v Giant (China) explained that ‘the term necessary information refers to information held by the interested parties which the EU institutions ask them to provide in order to enable them to reach the appropriate findings in an anti-dumping investigation’ (6). In this respect, the company claimed that the Commission never requested certain additional data to confirm that the list of export transaction to the Union was complete.

                     (38)

                     The Commission recalled that the company was already informed in the specific provisional disclosure that the data mentioned in recital (37), in particular the complete and verifiable data set of export transactions during the investigation period was not available to the Commission. The company was not able to provide evidence that the data was complete and, in any event, as explained before, the Commission could not verify it either. Therefore, the claim that the Commission never requested additional information is inapposite. Given the specific circumstances, the Commission was not in a position to confirm the data set of export transactions provided by this company.

                     (39)

                     Furthermore, the company reiterated that it had cooperated to its best ability throughout the proceeding and recalled that it is the Commission practice to use as much of the company’s own information as possible referring to an earlier investigation (7).

                     (40)

                     The Commission recalled that the unique circumstances of each investigation should be considered individually. In the present case, the main problem faced by the Commission was the fundamental unreliability of the company’s records, which, being a problem at the root, could not be solved by applying adjustments to the information submitted by the company. Since the company records could not be verified, the Commission could not ascertain either with the necessary degree of certainty that the data set of export transactions (including products exported, volumes and values)were accurate and complete. In this respect, the Commission also observed that the data set of export prices provided and confirmed by other means, such as data from importers or export statistics, could not be reconciled with the audited accounts of the company, further suggesting that the data could not be relied upon.

                     (41)

                     In addition, the company claimed that the Commission erred in law when it applied the provisions of Article 18 of the basic Regulation to the determination of the normal value as only information concerning the export price were found not reliable. In this respect, the company reiterated that the panel report in case DS 337: EC – Salmon (Norway) (8) referred to Annex II of the WTO Anti-dumping Agreement, which requires that ‘all information which is verifiable, which is appropriately submitted so that it can be used in the investigation without undue difficulties, which is supplied in a timely fashion, and, where applicable, which is supplied in a medium or computer language requested by the authorities, should be taken into account when determinations are made’.

                     (42)

                     The Commission considered that notwithstanding the provisions of Annex II of the WTO Anti-dumping Agreement, the determination of the normal value was without effect in the present case. The company submitted information for the determination of its individual dumping margin. The Commission found that the information for the determination of the export price, which is a fundamental element in the determination of the dumping margin, was not reliable since it could not be verified. The deficiencies were of such nature that none of the information provided for the determination of the export price could be used. In such case, any determination of the normal value would be redundant as no dumping margin could be established in the absence of the export price.

                     (43)

                     Finally, the company claimed that the Commission violated the company’s rights of defence by not disclosing the determination of the normal value. In this respect, the company also requested a hearing with the hearing officer, which was organised on 16 January 2020.

                     (44)

                     As explained in recital (42), the normal value for the company was not determined in the present case. Therefore, the Commission considered that it had not failed to disclose any information in its possession. Moreover, in response to an earlier request of the company to have the determination of the normal value disclosed, the Commission informed the company about all the elements it would have used if a normal value had been determined.

                     (45)

                     In the hearing of 16 January 2020, the hearing officer considered that the Commission did not infringe the rights of defence of the company when it did not disclose the calculation of the normal value.

                     (46)

                     Therefore, the Commission confirmed the conclusions set out in recitals (43) to (48) of the provisional Regulation and maintained the decision to apply the provisions of Article 18(1), first paragraph, to the company in question. As the export sales of the company could not be verified, the Commission could not establish the exact product types exported to the Union during the investigation period. Therefore, and absent this information, the Commission considered it appropriate that the margin given to the company be equal to the residual margin. The Commission further notes that the company may request reimbursement of duties collected in accordance with Article 11(8) of the basic Regulation, if it can show in the future that its export data are verifiable.

               3.2.   Normal value

                     (47)

                     In the absence of any comments with respect to the application of the Article 2(6a)(b) of the basic Regulation, the choice of the representative country, factors of production and benchmarks applied for the calculation of undistorted costs, and calculation of the normal value, the Commission confirmed recitals (49) to (178) of the provisional Regulation.

               3.3.   Export price

                     (48)

                     In the absence of comments concerning the establishment of the export price, recital (179) of the provisional Regulation was confirmed.

               3.4.   Comparison and dumping margins

                     (49)

                     Following the publication of the provisional Regulation, one unrelated Union importer questioned the existence of dumping with regard to the product concerned or with regard to the SRW for passenger cars only.

                     (50)

                     Those comments were mere statements without any further substantiation and did not challenge the Commission provisional findings on normal value, export price, and comparison thereof. The only exporting producer remaining in the sample, who actually received the full calculation of the dumping margin, did not challenge those findings and calculations. This company was also exporting SRWs for passenger cars to the Union. Significant dumping margins were found with regard to both SRW for passenger cars and SRW for commercial vehicles.

                     (51)

                     In the absence of any comments to the methodology of calculation of residual dumping margin, the Commission confirmed the conclusions set out in recitals (184) to (185) of the provisional Regulation.

                     (52)

                     Furthermore, in the absence of comments on the comparison and dumping margins, the Commission confirmed the conclusions set out in recitals (180) to (183) and recitals (186) to (187) of the provisional Regulation.

               4.   INJURY

         4.1.   Definition of the Union industry and Union production

                     (53)

                     In the absence of comments with respect to this section following the publication of the provisional Regulation, the Commission confirmed its conclusions set out in recitals (188) to (189) of that regulation.

               4.2.   Union market and consumption

                     (54)

                     One unrelated importer submitted that the Commission drew wrong conclusions in recital (190) of the provisional Regulation claiming that wheels for passenger cars and wheels for commercial vehicles should not be considered together in a single investigation. According to this interested party, dumping would be significant on the wheels for commercial vehicles whereas that would not be the case for wheels for passenger cars. Following final disclosure the same importer insisted that wheels for passenger cars and wheels for commercial vehicles should not be considered together in a single investigation on the grounds that wheels for passenger cars represent less than 1 % of total Union consumption in kilos.

                     (55)

                     The Commission however considered that wheels for passenger cars and those for commercial vehicles have the same basic physical and technical characteristics and are just different types of the product concerned. Thus, the present investigation covered one product only. The potential differences in the magnitude of dumping between different types of the product concerned was in no way relevant for the assessment of the scope of an investigation, that is, the definition of the product concerned. In any event, the Commission found substantial dumping for all types of products investigated. Accordingly, even if that element were a relevant fact to be considered, quod non, the claim was factually incorrect. It is recalled that the findings made in recitals (190) to (192) of the provisional Regulation show that both China and the Union producers are similarly active in the passenger car wheels and in the commercial wheels, both representing a significant share of the exports from the country concerned into the Union and of the Union industry sales. In the Union, around 65 % of the sales in pieces are for passenger car wheels. Dumped imports, regardless of the product type or distribution channels, are capable of negatively affecting the Union industry. Therefore, the claim was rejected.

                     (56)

                     In the absence of other comments with respect to the Union market and consumption, the Commission confirmed its conclusions set out in recitals (190) to (195) of the provisional Regulation.

               4.3.   Imports from the country concerned

                     (57)

                     In the absence of comments with respect to this section, the Commission confirmed its conclusions set out in recitals (196) to (204) of the provisional Regulation.

               4.4.   Economic situation of the Union industry

         4.4.1.   General remarks

                     (58)

                     In the absence of any comments, the Commission confirmed its conclusions set out in recitals (205) to (209) of the provisional Regulation.

               4.4.2.   Macroeconomic indicators

                     (59)

                     In the absence of comments with respect to the macroeconomic indicators, the Commission confirmed its conclusions set out in recitals (210) to (218) of the provisional Regulation.

               4.4.3.   Microeconomic indicators

                     (60)

                     In the absence of comments with respect to the microeconomic indicators, the Commission confirmed its conclusions set out in recitals (219) to (230) of the provisional Regulation.

               4.4.4.   Conclusion on injury

                     (61)

                     In the absence of comments with respect to the conclusion on injury, the Commission confirmed its conclusions set out in recitals (231) to (234) of the provisional Regulation.

               5.   CAUSATION

         5.1.   Effects of the dumped imports

                     (62)

                     At provisional stage, the Commission concluded that the Union industry lost sales volume and market share due to dumped imports from the country concerned, and that these imports undercut the sales prices of the Union producers. There was also evidence at provisional stage that those dumped prices caused price suppression during the investigation period. The latter findings are reflected in Table 8 of the provisional Regulation, which shows that already in 2017 the prices of Union industry sales in the Union increased less than its costs of production, whereas in the investigation period the Union producers were forced to sell below their costs of production. Those findings were confirmed at definitive stage.

                     (63)

                     After final disclosure and during a hearing with the Hearing Officer, a Chinese group submitted that the decline in the market share of the Union industry shall not be completely attributed to Chinese imports because the increase of the Chinese market share over the period considered was lower than the decrease of the Union producers’ market share in that period (9). The same group said that the Commission had not elaborated how, even if Chinese import prices decreased by 7 % over the period considered, the low market share held by Chinese imports had negatively impacted the Union market, which was dominated by Union producers.

                     (64)

                     The Commission notes it is not required to attribute all the injury found to the subject imports; rather the attribution analysis examines whether the subject imports are a cause for the injury found, which in this case it is not contested by any interested party. As explained in recitals (239) to (252) of the provisional Regulation, the price pressure from dumped imports from the PRC undermined the Union industry’s sales volumes and sales prices throughout the period considered but was particularly damaging in 2017 and the investigation period when costs were increasing. Such pressure caused severe production, sales and profitability losses in the investigation period. None of the other factors examined, either individually or collectively, attenuate the causal link between the dumped imports and the injury suffered by the Union industry.

                     (65)

                     In the absence of other comments with respect to attribution of the injury found to the subject imports, the Commission confirmed its conclusions set out in recitals (236) to (238) of the provisional Regulation.

               5.2.   Effects of other factors

                     (66)

                     Following the publication of the provisional Regulation, an unrelated importer questioned the reason why the investigation had not been opened against Turkey. According to this company, there were more imports of steel road wheels from Turkey than from the PRC and similar import prices during the investigation period according to Tables 4 and 12 of the provisional Regulation.

                     (67)

                     The Commission first notes that the investigation was opened against the country for which sufficient evidence of injurious dumping was presented at the time of the initiation of the case. In fact, the complaint contained evidence that import prices from Turkey were at a level high enough not to cause injury to the Union industry. Secondly, the Commission analysed, as explained in recital (241) of the provisional Regulation, the development of both Chinese and Turkish import volumes and prices over the period considered. Based on the evidence on the case file, the Commission concluded that Turkish prices were on average around 25 % higher than Chinese prices.

                     (68)

                     Following final disclosure a Chinese group noted the Turkish import volumes were higher than Chinese import volumes. It added that, unlike import prices from China, Turkish import prices declined between 2017 and the investigation period and claimed that the Commission had failed to analyse the impact of such trend on the injury suffered by Union producers. The party reiterated these issues during a hearing with the Hearing Officer, where it also claimed that during the investigation period the market share of Turkish imports (9,6 %) was significant as compared to the one of Chinese imports (5,3 %) and noted the market share of other imports (5,2 %).

                     (69)

                     The Commission reiterated that the Eurostat data did not allow for a precise picture concerning the price level of imports, but it also noted that Tables 4 and 12 of the provisional Regulation showed that in every year of the period considered and during the investigation period average Chinese import prices per kilo were below Turkish import prices and far below import prices from other countries. The difference in the evolution of Chinese import prices and the Turkish import prices is minor and deemed irrelevant, also bearing in mind the shortcomings of Eurostat data highlighted in recital (200) of the provisional Regulation and the uncontested findings summarized in recital (241) of the provisional Regulation as mentioned in recital (67) above. Consequently the Commission considers that Turkish import prices do not undermine the finding that Chinese imports of SRW caused injury to Union producers.

                     (70)

                     In the absence of any other comments with respect to attribution of the injury found to the subject imports, the Commission confirmed its conclusions set out in recitals (239) to (250) of the provisional Regulation.

               5.3.   Conclusion on causation

                     (71)

                     On the basis of the above, the Commission concluded that none of the other factors examined was capable of having any relevant impact on the injurious situation of the Union industry. Furthermore, none of the factors, analysed either individually or collectively, attenuated the causal link between the dumped imports and the injury suffered by the Union industry to the effect that such link would no longer be genuine and substantial, confirming the conclusion in recital (252) of the provisional Regulation.

               6.   UNION INTEREST

         6.1.   Interest of the Union industry

                     (72)

                     In the absence of any comments regarding the interest of Union industry, the conclusions set out in recitals (254) to (255) of the provisional Regulation were confirmed.

               6.2.   Interest of unrelated importers and users

                     (73)

                     Following the publication of the provisional Regulation, an importer claimed that measures would have devastating effects on its business. Another importer mentioned that the investigation would have unreasonable negative effects on its importing activities, consumers and the environment but did not further explain or quantify such effects. Neither party provided evidence to substantiate its claim. The Commission considered that, in the absence of any evidence, it could not conclude that the alleged negative effects would surpass the need for measures that restore a level playing field in the Union SRW market. Indeed, the investigation had shown that there was sufficient supply of the product concerned from other sources so as to retain adequate supply at fair market prices.

                     (74)

                     Following the publication of the provisional Regulation, no party representing the interest of users came forward nor made representations.

                     (75)

                     In the absence of any other comments regarding the interest of unrelated importers and users, the conclusions set out in recitals (256) to (259) of the provisional Regulation were confirmed.

               6.3.   Conclusion on Union interest

                     (76)

                     On the basis of the above and in the absence of any comments, the conclusions set out in recital (260) of the provisional Regulation were confirmed.

               7.   DEFINITIVE ANTI-DUMPING MEASURES

         7.1.   Injury elimination level

                     (77)

                     Under Article 9(4), third paragraph, of the basic Regulation, the Commission assessed the development of import volumes during the period of pre-disclosure described in recital (4) above in order to reflect the additional injury in case there would be a further substantial rise in imports subject to the investigation in that period. According to Eurostat, Article 14(6) and Surveillance 2 databases, a comparison of the import volumes of the product concerned in the investigation period and those of the pre-disclosure period showed no further substantial rise in imports. Therefore, the requirements for an increase in the determination of the injury margin under Article 9(4) of the basic Regulation were not met and no adjustment was made to the injury margin.

                     (78)

                     On this basis and in the absence of any comments regarding the injury elimination level, the conclusions set out in recitals (262) to (269) of the provisional Regulation were confirmed.

               7.2.   Definitive measures

                     (79)

                     In view of the conclusions reached with regard to dumping, injury, causation and Union interest, definitive anti-dumping measures should be imposed in order to prevent further injury being caused to the Union industry by the dumped imports of the product concerned.

                     (80)

                     Definitive anti-dumping measures should be imposed on imports of steel road wheels originating in the PRC in accordance with the lesser duty rule in Article 7(2) and Article 9(4), second paragraph of the basic Regulation.

                     (81)

                     On the basis of the above, the definitive anti-dumping duty rates, expressed on the CIF Union border price, customs duty unpaid, should be as follows:

                                 Company

                                 Dumping margin (%)

                                 Injury margin (%)

                                 Definitive anti-dumping duty (%)

                                 Xingmin Intelligent Transportation Systems Co., Ltd

                                 69,4

                                 50,3

                                 50,3

                                 Tangshan Xingmin Wheels Co., Ltd.

                                 69,4

                                 50,3

                                 50,3

                                 Xianning Xingmin Wheels Co., Ltd.

                                 69,4

                                 50,3

                                 50,3

                                 Other cooperating companies

                                 69,4

                                 50,3

                                 50,3

                                 All other companies

                                 80,1

                                 66,4

                                 66,4

                     (82)

                     The individual company anti-dumping duty rates specified in this Regulation were established on the basis of the findings of this investigation. Therefore, they reflected the situation found during this investigation with respect to these companies. These duty rates are exclusively applicable to imports of the product concerned originating in the PRC and produced by the named legal entities. Imports of product concerned produced by any other company not specifically mentioned in the operative part of this Regulation, including entities related to those specifically mentioned, should be subject to the duty rate applicable to ‘all other companies’. They should not be subject to any of the individual anti-dumping duty rates.

                     (83)

                     A company may request the application of these individual anti-dumping duty rates if it changes subsequently the name of its entity. The request must be addressed to the Commission (10). The request must contain all the relevant information enabling to demonstrate that the change does not affect the right of the company to benefit from the duty rate which applies to it. If the change of name of the company does not affect its right to benefit from the duty rate which applies to it, a notice informing about the change of name will be published in the Official Journal of the European Union.

                     (84)

                     To minimise the risks of circumvention due to the high difference in duty rates, special measures are needed to ensure the proper application of the individual anti-dumping duties. The companies with individual anti-dumping duties must present a valid commercial invoice to the customs authorities of the Member States. The invoice must conform to the requirements set out in Article 1(3) of this regulation. Imports not accompanied by that invoice should be subject to the anti-dumping duty applicable to ‘all other companies’.

                     (85)

                     While presentation of this invoice is necessary for the customs authorities of the Member States to apply the individual rates of anti-dumping duty to imports, it is not the only element to be taken into account by the customs authorities. Indeed, even if presented with an invoice meeting all the requirements set out in Article 1(3) of this Regulation, the customs authorities of Member States should carry out their usual checks and may, like in all other cases, require additional documents (shipping documents, etc.) for the purpose of verifying the accuracy of the particulars contained in the declaration and ensure that the subsequent application of the rate of duty is justified, in compliance with customs law.

                     (86)

                     Should the exports by one of the companies benefiting from lower individual duty rates increase significantly in volume, in particular after the imposition of the measures concerned, such an increase in volume could be considered as constituting in itself a change in the pattern of trade due to the imposition of measures within the meaning of Article 13(1) of the basic Regulation. In such circumstances, an anti-circumvention investigation may be initiated, provided the conditions for so doing are met. This investigation may, inter alia, examine the need for the removal of individual duty rate(s) and the consequent imposition of a country-wide duty.

                     (87)

                     To ensure a proper enforcement of the anti-dumping duties, the anti-dumping duty for all other companies should apply not only to the non-cooperating exporting producers in this investigation, but also to the producers which did not have exports to the Union during the investigation period.

                     (88)

                     Statistics of SRW are frequently expressed in number of pieces. However, there is no such supplementary unit for SRW specified in the Combined Nomenclature laid down in Annex I to Council Regulation (EEC) No 2658/87 (11). It is therefore necessary to provide that not only the weight in kg or tonnes but also the number of pieces for the imports of the product concerned must be entered in the declaration for release for free circulation. Pieces should be indicated for TARIC codes 8708701080, 8708701085, 8708709920, 8708709980, 8716909095, and 8716909097.

               7.3.   Definitive collection of the provisional duties

                     (89)

                     In view of the dumping margins found and given the level of the injury caused to the Union industry, the amounts secured by way of the provisional anti-dumping duty, imposed by the provisional Regulation, should be definitively collected.

               8.   UNDERTAKING OFFER

                     (90)

                     In its submission after provisional disclosure, one of the sampled Chinese exporting producers signalled its willingness to offer a price undertaking. However, the preliminary offer made by the company lacked the most important element of undertaking – the level of a minimum import price. The Commission therefore could not accept such a request.

               9.   FINAL PROVISION

                     (91)

                     In view of Article 109 of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council (12), when an amount is to be reimbursed following a judgment of the Court of Justice of the European Union, the interest to be paid should be the rate applied by the European Central Bank to its principal refinancing operations, as published in the C series of the Official Journal of the European Union on the first calendar day of each month.

                     (92)

                     The measures provided for in this Regulation are in accordance with the opinion of the Committee established by Article 15(1) of Regulation (EU) 2016/1036,

               HAS ADOPTED THIS REGULATION:

            Article 1

               1.   A definitive anti-dumping duty is imposed on imports of wheels of steel designed for use on the road, whether or not with their accessories and whether or not fitted with tyres, designed for:

                           —

                           Road tractors,

                           —

                           Motor vehicles for the transport of persons and/or the transport of goods,

                           —

                           Special purpose motor vehicles (for example, fire fighting vehicles, spraying lorries),

                           —

                           Trailers or semi-trailers, not mechanically propelled, of the above listed vehicles

                     originating in the People’s Republic of China, currently falling under CN codes ex 8708 70 10, ex 8708 70 99 and ex 8716 90 90 (TARIC codes 8708701080, 8708701085, 8708709920, 8708709980, 8716909095 and 8716909097) (‘the product concerned’).
               The following products are excluded:

                           —

                           Road wheels of steel for the industrial assembly of pedestrian-controlled tractors currently falling under subheading 8701 10,

                           —

                           Wheels for road quad bikes,

                           —

                           Wheel centres in star form, cast in one piece, of steel,

                           —

                           Wheels for motor vehicles, specifically designed for uses other than on public roads (for example, wheels for agricultural tractors or forestry tractors, for forklifts, for pushback tractors, for dumpers designed for off-highway use),

                           —

                           Wheels for passenger car trailers and for caravans, not mechanically propelled, with a rim diameter of not more than 16 inches,

                           —

                           Wheels for trailers or semi-trailers, specifically designed for uses other than on public roads (for example, wheels for agricultural trailers and other trailed agricultural equipment used in fields).

               2.   The rates of the definitive anti-dumping duty applicable to the net, free-at-Union-frontier price, before duty, of the product described in paragraph 1 and manufactured by the companies listed below, shall be as follows:

                           Company

                           Definitive anti-dumping duty (%)

                           TARIC additional code

                           Xingmin Intelligent Transportation Systems Co., Ltd

                           50,3

                           C508

                           Tangshan Xingmin Wheels Co., Ltd.

                           50,3

                           C509

                           Xianning Xingmin Wheels Co., Ltd.

                           50,3

                           C510

                           Other cooperating companies listed in the Annex

                           50,3

                           See Annex

                           All other companies

                           66,4

                           C999

               3.   The application of the individual duty rates specified for the companies mentioned in paragraph 2 shall be conditional upon presentation to the Member States’ customs authorities of a valid commercial invoice, on which shall appear a declaration dated and signed by an official of the entity issuing such invoice, identified by name and function, drafted as follows: ‘I, the undersigned, certify that the (pieces) of (product concerned) sold for export to the European Union covered by this invoice was manufactured by (company name and address) (TARIC additional code) in [country concerned]. I declare that the information provided in this invoice is complete and correct.’ If no such invoice is presented, the duty applicable to all other companies shall apply.

               4.   Unless otherwise specified, the provisions in force concerning customs duties shall apply.

            Article 2
            The amounts secured by way of the provisional anti-dumping duty under Implementing Regulation (EU) 2019/1693 shall be definitively collected.

            Article 3
            Where any producer from the People’s Republic of China provides sufficient evidence to the Commission that

                        (i)

                        it did not export the goods described in Article 1(1) originating in the People’s Republic of China during the period of investigation (1 January 2018 to 31 December 2018),

                        (ii)

                        it is not related to an exporter or producer subject to the measures imposed by this Regulation; and

                        (iii)

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

                  the Commission may amend the Annex in order to attribute to that producer the duty applicable to cooperating producers not in the sample, i.e. 50,3 %.

            Article 4
            Where a declaration for release for free circulation is presented in respect of the products referred to in Article 1, the number of pieces of the products imported shall be entered in the relevant field of that declaration.

            Article 5
            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, 3 March 2020.

                  For the Commission

                  The President

               Ursula VON DER LEYEN

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

            (2)  Notice of initiation of an anti-dumping proceeding concerning imports of steel road wheels originating in the People’s Republic of China (OJ C 60, 15.2.2019, p. 19).

            (3)  Notice amending the notice of initiation of an anti-dumping proceeding concerning imports of steel road wheels originating in the People’s Republic of China (OJ C 111, 25.3.2019, p. 52).

            (4)  Commission Implementing Regulation (EU) 2019/1693 of 9 October 2019 imposing a provisional anti-dumping duty on imports of steel road wheels originating in the People’s Republic of China (OJ L 259, 10.10.2019, p. 15).

            (5)  Case T-413/13, City Cycle Industries, ECLI:EU:T:2015:164, paras. 120-121.

            (6)  Case C-61/16 P, EBMA v Giant (China), para. 57, EU:C:2017:968.

            (7)  Council Regulation (EC) No 950/2001 (OJ L 134, 17.5.2001) recitals 43-44.

            (8)  Panel report, EC – Salmon (Norway), recitals 7.354-355.

            (9)  Table 3 of the provisional Regulation shows that the market share of Chinese imports in the Union market went up from 2,6 % in 2015 to 5,3 % in the investigation period. Table 6 of the provisional Regulation shows that Union producers’ market share in the Union market went down from 84,9 % in 2015 to 79,8 % in the investigation period.

            (10)  European Commission, Directorate-General for Trade, Directorate H, Rue de la Loi 170, 1040 Brussels, Belgium.

            (11)  Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ L 256, 7.9.1987, p. 1).

            (12)  Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ L 193, 30.7.2018, p. 1).

            ANNEX

               Chinese cooperating exporting producers not sampled

                        Name

                        TARIC additional code

                        Dongfeng Automobile Chassis System Co., Ltd (also called ‘Dongfeng Automotive Wheel Co., Ltd’)

                        C511

                        Hangzhou Forlong Impex Co., Ltd

                        C512

                        Hangzhou Xingjie Auto Parts Manufacturing Co., Ltd

                        C513

                        Jiaxing Henko Auto Spare Parts Co., Ltd

                        C514

                        Jining Junda Machinery Manufacturing Co., Ltd

                        C515

                        Nantong Tuenz Corporate Co., Ltd

                        C516

                        Ningbo Luxiang Autoparts Manufacturing Co., Ltd

                        C517

                        Shandong Zhengshang Wheel Technology Co., Ltd

                        C518

                        Shandong Zhengyu Wheel Group Co., Ltd

                        C519

                        Xiamen Sunrise Group Co., Ltd

                        C520

                        Yantai Leeway Electromechanical Equipment Co., Ltd

                        C521

                        Yongkang Yuefei Wheel Co., Ltd

                        C522

                        Zhejiang Jingu Co., Ltd

                        C523

                        Zhejiang Fengchi Mechanical Co., Ltd

                        C524

                        Zhengxing Wheel Group Co., Ltd

                        C525

                        Zhenjiang R & D Auto Parts Co., Ltd

                        C526


title: Council Implementing Regulation (EU) 2020/370 of 5 March 2020 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine

text:
                  6.3.2020

                  EN

                  Official Journal of the European Union

                  L 71/1

         COUNCIL IMPLEMENTING REGULATION (EU) 2020/370
         of 5 March 2020
         implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine
         THE COUNCIL OF THE EUROPEAN UNION,
         Having regard to the Treaty on the Functioning of the European Union,
         Having regard to Council Regulation (EU) No 208/2014 of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (1), and in particular Article 14(1) thereof,
         Having regard to the proposal from the High Representative of the Union for Foreign Affairs and Security Policy,
         Whereas:

                     (1)

                     On 5 March 2014, the Council adopted Regulation (EU) No 208/2014.

                     (2)

                     On the basis of a review by the Council, the entries for two persons should be deleted and the information in Annex I regarding the rights of defence and the right to effective judicial protection should be updated.

                     (3)

                     Annex I to Regulation (EU) No 208/2014 should therefore be amended accordingly,

               HAS ADOPTED THIS REGULATION:

            Article 1
            Annex I to Regulation (EU) No 208/2014 is amended as set out in the Annex to this Regulation.

            Article 2
            This Regulation shall enter into force on the date 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, 5 March 2020.

                  For the Council

                  The President

               T. ĆORIĆ

            (1)  OJ L 66, 6.3.2014, p. 1.

            ANNEX
            Annex I to Regulation (EU) No 208/2014 is amended as follows:

                        (1)

                        in the section ‘A. List of natural and legal persons, entities and bodies referred to in Article 2’, the entries for the following persons are deleted:

                                    11.

                                    Mykola Yanovych Azarov;

                                    18.

                                    Edward Stavytskyi;

                        (2)

                        section ‘B. Rights of defence and right to effective judicial protection’ is replaced by the following:

                                    ‘B.

                                    Rights of defence and right to effective judicial protection
                                    The rights of defence and the right to effective judicial protection under the Code of Criminal Procedure of Ukraine
                                    Article 42 of the Code of Criminal Procedure of Ukraine ("Code of Criminal Procedure") provides that every person who is suspected or accused in criminal proceedings enjoys rights of defence and the right to effective judicial protection. These include: the right to be informed of the criminal offence of which he has been suspected or accused; the right to be informed, expressly and promptly, of his rights under the Code of Criminal Procedure; the right to have, when first requested, access to a defence lawyer; the right to present petitions for procedural actions; and the right to challenge decisions, actions and omissions by the investigator, the public prosecutor and the investigating judge. Article 306 of the Code of Criminal Procedure provides that complaints against decisions, acts or omissions of the investigator or public prosecutor must be considered by an investigating judge of a local Court in the presence of the complainant or his defence lawyer or legal representative. Article 308 of the Code of Criminal Procedure provides that complaints regarding failure by the investigator or public prosecutor to respect reasonable time during the pre-trial investigation may be lodged with a superior public prosecutor and must be considered within three days of being lodged. In addition, Article 309 of the Code of Criminal Procedure specifies the decisions of investigating judges that may be challenged on appeal, and that other decisions may be subject to judicial review in the course of preparatory proceedings in Court. Moreover, a number of procedural investigating actions are only possible subject to a ruling by the investigating judge or a Court (e.g. seizure of property under Articles 167 – 175, and measures of detention under Articles 176 – 178 of the Code of Criminal Procedure).
                                    Application of the rights of defence and the right to effective judicial protection of each of the listed persons

                                                1.

                                                Viktor Fedorovych Yanukovych
                                                The criminal proceedings relating to the misappropriation of public funds or assets are still ongoing.
                                                The information on the Council’s file shows that the rights of defence and the right to effective judicial protection of Mr Yanukovych were respected in the criminal proceedings on which the Council relied. This is demonstrated in particular by letters of 26 September 2014 and 8 October 2014 concerning the sending of the written notification of suspicion, information that permission for a special pre-trial investigation in absentia was granted on 27 July 2015, a number of Court decisions relating to the seizure of property and by the fact that the decision of 27 September 2017 to suspend the criminal proceedings was open to appeal. The Council also has evidence on its file that a recent motion of the defence was granted on 30 September 2019.

                                                2.

                                                Vitalii Yuriyovych Zakharchenko
                                                The criminal proceedings relating to the misappropriation of public funds or assets are still ongoing.
                                                The information on the Council’s file shows that the rights of defence and the right to effective judicial protection of Mr Zakharchenko were respected in the criminal proceedings on which the Council relied. This is demonstrated in particular by the decisions of the investigating judge of 21 May 2018 and of 23 November 2018 granting permission to detain Mr Zakharchenko with the purpose of bringing him to the Court to participate in hearing the petition for the application of detention in custody. Moreover, the decision of 19 February 2019 on the suspension of the pre-trial investigation was open to appeal.

                                                3.

                                                Viktor Pavlovych Pshonka
                                                The criminal proceedings relating to the misappropriation of public funds or assets are still ongoing.
                                                The information on the Council’s file shows that the rights of defence and the right to effective judicial protection of Mr Pshonka were respected in the criminal proceedings on which the Council relied. This is demonstrated in particular by the fact that a written notification of suspicion was delivered on 22 December 2014, by the fact that the decision of 16 June 2017 to suspend the criminal proceedings was open to appeal and by the decisions of the investigating judge of 12 March 2018, 13 August 2018 and 5 September 2019 granting permission to detain Mr Pshonka with the purpose of bringing him to the Court to participate in hearing the petition for the application of detention in custody.

                                                6.

                                                Viktor Ivanovych Ratushniak
                                                The criminal proceedings relating to the misappropriation of public funds or assets are still ongoing.
                                                The information on the Council’s file shows that the rights of defence and the right to effective judicial protection of Mr Ratushniak were respected in the criminal proceedings on which the Council relied. This is demonstrated in particular by the decisions of the investigating judge of 21 May 2018 and of 23 November 2018 granting permission to detain Mr Ratushniak with the purpose of bringing him to the Court to participate in hearing the petition for the application of detention in custody. Moreover, the decision of 19 February 2019 on the suspension of the pre-trial investigation was open to appeal.

                                                7.

                                                Oleksandr Viktorovych Yanukovych
                                                The criminal proceedings relating to the misappropriation of public funds or assets are still ongoing.
                                                The information on the Council’s file shows that the rights of defence and the right to effective judicial protection of Mr Yanukovych were respected in the criminal proceedings on which the Council relied. This is demonstrated in particular by a number of Court decisions relating to the seizure of property and by the decision of the investigating judge of 27 June 2018 cancelling the resolution of the prosecution refusing to grant the motion of defence for closing the investigation.

                                                9.

                                                Artem Viktorovych Pshonka
                                                The criminal proceedings relating to the misappropriation of public funds or assets are still ongoing.
                                                The information on the Council’s file shows that the rights of defence and the right to effective judicial protection of Mr Pshonka were respected in the criminal proceedings on which the Council relied. This is demonstrated in particular by the fact that a written notification of suspicion was delivered on 29 December 2014, by the fact that the decision of 16 June 2017 to suspend the criminal proceedings was open to appeal and by the decisions of the investigating judge of 12 March 2018, 13 August 2018 and 5 September 2019 granting permission to detain Mr Pshonka with the purpose of bringing him to the Court to participate in hearing the petition for the application of detention in custody.

                                                12.

                                                Serhiy Vitalyovych Kurchenko
                                                The criminal proceedings relating to the misappropriation of public funds or assets are still ongoing.
                                                The information on the Council’s file shows that the rights of defence and the right to effective judicial protection of Mr Kurchenko were respected in the criminal proceedings on which the Council relied. This is demonstrated in particular by the decision of the investigating judge of 7 March 2018 granting permission for a special investigation in absentia. Moreover, the defence was notified about the completion of the pre-trial investigation on 28 March 2019 and was provided access to the materials for familiarisation.

                                                13.

                                                Dmytro Volodymyrovych Tabachnyk
                                                The criminal proceedings relating to the misappropriation of public funds or assets are still ongoing.
                                                The information on the Council’s file shows that the rights of defence and the right to effective judicial protection of Mr Tabachnyk were respected in the criminal proceedings on which the Council relied. This is demonstrated in particular by the decision of the investigating judge of 8 May 2018 granting permission to detain Mr Tabachnyk with the purpose of bringing him to the Court to participate in hearing the petition for the application of detention in custody.

                                                15.

                                                Serhiy Hennadiyovych Arbuzov
                                                The criminal proceedings relating to the misappropriation of public funds or assets are still ongoing.
                                                The information on the Council’s file shows that the rights of defence and the right to effective judicial protection of Mr Arbuzov were respected in the criminal proceedings on which the Council relied. This is demonstrated in particular by a letter of 24 April 2017 concerning the sending of the written notification of suspicion, the decisions of the investigating judge of 19 December 2018, 18 March 2019 and 29 July 2019 granting the motion of the defence against inaction by the Prosecutor General’s Office, the decision of the investigating judge of 10 August 2017 granting permission for a special investigation in absentia and by the decisions of the investigating judge of 4 November 2019 and 5 November 2019 refusing the motions of the defence to set a deadline for completing the pre-trial investigation.

                                                17.

                                                Oleksandr Viktorovych Klymenko
                                                The criminal proceedings relating to the misappropriation of public funds or assets are still ongoing.
                                                The information on the Council’s file shows that the rights of defence and the right to effective judicial protection of Mr Klymenko were respected in the criminal proceedings on which the Council relied. This is demonstrated in particular by the decisions of the investigating judge of 1 March 2017 and 5 October 2018 granting permission for a special investigation in absentia, the decisions of the investigating judge of 8 February 2017 and 19 August 2019 granting a preventive measure in the form of detention in custody, and the ongoing process of familiarisation with the materials of the criminal proceedings by the defence.’.


title: Commission Implementing Regulation (EU) 2020/571 of 24 April 2020 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, as amended by Implementing Regulation (EU) 2019/2131 and repayment of duties collected

text:
                  27.4.2020

                  EN

                  Official Journal of the European Union

                  L 132/7

         COMMISSION IMPLEMENTING REGULATION (EU) 2020/571
         of 24 April 2020
         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, as amended by Implementing Regulation (EU) 2019/2131 and repayment of duties collected
         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 of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (1) (‘the basic Regulation’), and in particular Article 14(1) thereof,
         Whereas:
         A.   PROCEDURE

                     (1)

                     By Council Implementing Regulation (EU) No 412/2013 (2) definitive anti-dumping duties were imposed on imports of ceramic tableware and kitchenware originating in the People’s Republic of China. Following an expiry review investigation pursuant to Article 11(2) of the basic Regulation, the Commission prolonged the measures by Commission Implementing Regulation (EU) 2019/1198 (3) (‘the measures in force’). Subsequently, following an anti-circumvention investigation the Commission decided, by Commission Implementing Regulation (EU) 2019/2131 (4), to make several companies previously subject to an individual dumping duty rate of 17,9 % subject to the duty rate of 36,1 % applicable to ‘all other companies’ and repeal their individual TARIC additional code.

                     (2)

                     By Article 1(2) of Implementing Regulation (EU) 2019/2131 the TARIC additional code B632, which had been attributed to the company Liling Jiaxing Ceramic Industrial Co., Ltd. (‘Jiaxing’) was replaced with the TARIC additional code B999. The Commission repealed the individual TARIC additional code based on a relationship with another company, having TARIC additional code B610, which had been found to circumvent (5). As a consequence, imports of ceramic tableware and kitchenware produced by Jiaxing became subject to the duty rate of 36,1 % applicable to ‘all other companies’ as of the entry into force of Implementing Regulation (EU) 2019/2131. Following the publication thereof, Jiaxing alleged that it had not been properly informed on the Commission’s intention to change its individual duty rate and make it subject to the duty rate applicable to all other companies. Jiaxing argued that it had therefore been unable to fully and effectively exercise the right of defence. Moreover, it submitted evidence that it was not anymore related to the company with TARIC additional code B610.

                     (3)

                     In this respect, the Commission acknowledged that Jiaxing had not been put in a position to effectively exercise its right of defence and that there was no relationships with any other company found to be circumventing. Therefore, the outcome of the investigation vis-à-vis Jiaxing would had been different had it been given the opportunity to fully exercise its rights of defence during the anti-circumvention investigation.

                     (4)

                     Accordingly, it is appropriate to amend Implementing Regulation (EU) 2019/1198, as amended by Implementing Regulation (EU) 2019/2131, and to reattribute the TARIC additional code B632 to Liling Jiaxing Ceramic Industrial Co., Ltd., whose imports should have kept being subject to a duty rate of 17,9 %.

               B.   RETROACTIVE APPLICATION

                     (5)

                     Imports from Jiaxing to the Union have been subject to a duty rate of 36,1 % since the 13 December 2019 when Implementing Regulation (EU) 2019/2131, amending Implementing Regulation (EU) 2019/1198, entered into force. As explained in recitals (3) and (4) above, those imports would have been subject to a duty rate of 17,9 % had Jiaxing been put in a position to effectively exercise its rights. Therefore, it is considered appropriate that TARIC additional code B632, subject to a duty rate of 17,9 %, should be applied to the company Liling Jiaxing Ceramic Industrial Co., Ltd. retroactively as from the date of the entry into force of Implementing Regulation (EU) 2019/2131.

                     (6)

                     It follows that the amount of definitive duties paid pursuant to Implementing Regulation (EU) 2019/1198, as amended by Implementing Regulation (EU) 2019/2131 for imports from Jiaxing in excess of the duty rate of 17,9 % shall be repaid or remitted.

                     (7)

                     The measures provided for in this Regulation are in accordance with the opinion of the Committee established by Article 15(1) of Regulation (EU) 2016/1036,

               HAS ADOPTED THIS REGULATION:

            Article 1
            In Annex I to Implementing Regulation (EU) 2019/1198, as amended by Implementing Regulation (EU) 2019/2131, the following company is reinstated to the list of cooperating Chinese exporting producers not sampled:

                           Company

                           TARIC
                           Additional Code

                           ‘Liling Jiaxing Ceramic Industrial Co., Ltd.

                           B632’

            Article 2
            The amount of definitive duties paid pursuant to Implementing Regulation (EU) 2019/1198 in excess of the definitive anti-dumping duty established in Article 1 shall be repaid or remitted.
            Repayment and remission shall be requested from national customs authorities in accordance with applicable customs legislation within a period as set out in Article 121 of Regulation (EU) No 952/2013 of the European Parliament and of the Council (6).
            When an amount is to be reimbursed, the interest to be paid should be the rate applied by the Central European Bank to its principal refinancing operations, as published in the C series of the Official Journal of the European Union in the first calendar day of each month.

            Article 3
            This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.
            It shall apply retroactively as from 13 December 2019.

            This Regulation shall be binding in its entirety and directly applicable in all Member States.
            Done at Brussels, 24 April 2020.

                  For the Commission

                  The President

               Ursula VON DER LEYEN

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

            (2)  OJ L 131, 15.5.2013, p. 1.

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

            (4)  OJ L 321, 12.12.2019, p. 139.

            (5)  Implementing Regulation (EU) 2019/2131, recitals (20) and (21).

            (6)  OJ L 269, 10.10.2013, p. 1.