title: Council Implementing Regulation (EU) No 60/2012 of 16 January 2012 terminating the partial interim review pursuant to Article 11(3) of Regulation (EC) No 1225/2009 of the anti-dumping measures applicable to imports of ferro-silicon originating, inter alia, in Russia

text:
               25.1.2012

               EN

               Official Journal of the European Union

               L 22/1

         COUNCIL IMPLEMENTING REGULATION (EU) No 60/2012
   of 16 January 2012
   terminating the partial interim review pursuant to Article 11(3) of Regulation (EC) No 1225/2009 of the anti-dumping measures applicable to imports of ferro-silicon originating, inter alia, in Russia
   THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty on the Functioning of the European Union,
   Having regard to Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (1) (‘the basic Regulation’), and in particular Article 11(3) thereof,
   Having regard to the proposal submitted by the European Commission after consulting the Advisory Committee,
   Whereas:
   1.   PROCEDURE

   1.1.   Measures in force

               (1)

               The Council, by Regulation (EC) No 172/2008 (2) (‘the original Regulation’), imposed a definitive anti-dumping duty on imports of ferro-silicon originating, inter alia, in Russia. The measures consist of an ad valorem duty at a rate ranging from 17,8 % to 22,7 %. The investigation which led to this Regulation will be referred to below as ‘the original investigation’.

         1.2.   Request for a review

               (2)

               On 30 November 2009, the European Commission (‘Commission’) received a request for a partial interim review pursuant to Article 11(3) of the basic Regulation (‘the interim review’). The request, lodged by an exporting producer from Russia, Joint Stock Company (JSC) Chelyabinsk Electrometallurgical Integrated Plant and its related company Joint Stock Company (JSC) Kuznetsk Ferroalloy Works (hereinafter referred to jointly as ‘the applicant’),was limited in scope to the examination of dumping as far as the applicant is concerned. The anti-dumping duty rate applicable to the applicant is 22,7 %, based on the applicant’s dumping margin.

               (3)

               In its request, the applicant claimed that, as far as the applicant is concerned, the circumstances on the basis of which the existing measures were imposed have changed and that these changes are of a lasting nature.

               (4)

               The applicant provided prima facie evidence showing that, as far as the applicant is concerned, the continued imposition of the measure at its current level is no longer necessary to offset dumping. According to the information submitted in the request, the comparison of the applicant’s domestic prices and its export prices to the Union indicated that the dumping margin appeared to be substantially lower than the current level of the measure.

         1.3.   Initiation of a review

               (5)

               Having determined, after consulting the Advisory Committee, that sufficient evidence existed for the initiation of an interim review, the Commission decided to initiate a partial interim review in accordance with Article 11(3) of the basic Regulation, limited in scope to the examination of dumping as far as the applicant is concerned. The Commission published a notice of initiation on 27 October 2010 in the Official Journal of the European Union
                   (3) (‘Notice of initiation’) and commenced an investigation.

         1.4.   Product concerned and like product

               (6)

               The product concerned by the interim review is the same as that in the original investigation, i.e. ferro-silicon, originating in Russia, currently falling within CN codes 7202 21 00, 7202 29 10 and 7202 29 90.

               (7)

               The product produced and sold in Russia and that exported to the Union have the same basic physical and technical characteristics and uses and are therefore considered to be alike within the meaning of Article 1(4) of the basic Regulation.

         1.5.   Parties concerned

               (8)

               The Commission officially informed the Union industry, the applicant and the authorities of the exporting country of the initiation of the interim review. Interested parties were given the opportunity to make their views known in writing and to be heard.

               (9)

               The Commission sent questionnaires to the applicant and received a reply within the deadline set for that purpose. The Commission sought and verified all the information it deemed necessary for the determination of dumping, and verification visits were carried out at the following locations:

                           —

                           Joint Stock Company JSC Chelyabinsk Electrometallurgical Integrated Plant (‘CHEM’), Chelyabinsk, Russia,

                           —

                           Joint Stock Company JSC Kuznetsk Ferroalloy Works (‘KF’), Kuznetsk, Russia,
                           and

                           —

                           RFA International LP (‘RFAI’) in Mishawaka, USA & Nieuwdorp Zld, The Netherlands.

         1.6.   Investigation period

               (10)

               The investigation covered the period from 1 October 2009 to 30 September 2010 (the review investigation period or ‘RIP’).

         2.   LASTING NATURE OF CHANGED CIRCUMSTANCES

   2.1.   Introduction

               (11)

               As a starting point, it is recalled that, according to the case-law of the EU courts (4), when assessing the need to continue existing measures in a review based on Article 11(3) of the basic Regulation, the Institutions have a wide discretion, which includes the option of carrying out a prospective assessment of the pricing policy of the exporters concerned. It is in this context that the Institutions must examine the applicant’s arguments as to why the circumstances of its situation have changed in a lasting manner, allegedly justifying a reduction or even removal of the duty.

               (12)

               The applicant claimed that changed circumstances could be reasonably said to be of a lasting nature and thus the level of measures should be reduced or the measures should be repealed altogether as far as the applicant is concerned, as it was unlikely that in the foreseeable future there would be a recurrence of dumped imports at all or at levels similar to those established in the original investigation.

         2.2.   Regarding the question whether the applicant was still dumping on the EU market during the RIP
       (5)

               (13)

               Before replying to the various arguments of the applicant on the (allegedly) lasting nature of the (allegedly) changed circumstances, it is useful to first describe the Institutions’ considerations regarding the question whether the applicant may still have been dumping on the EU market during the RIP.

         2.2.1.   Normal value

               (14)

               For the determination of normal value, it was first established whether the company’s total volume of domestic sales of the like product to independent customers was representative in comparison with its total volume of export sales to the Union. In accordance with Article 2(2) of the basic Regulation, domestic sales are considered to be representative when the total domestic sales volume is at least 5 % of the total volume of sales of the product concerned to the Union. It was found that the overall sales, by the company, of the like product on the domestic market were representative.

               (15)

               For each product type sold by the company on its domestic market and found to be directly comparable with the product type sold for export to the Union, it was established whether domestic sales were sufficiently representative for the purposes of Article 2(2) of the basic Regulation. Domestic sales of a particular product type were considered sufficiently representative when the total volume of that product type sold on the domestic market to independent customers during the RIP represented at least 5 % of the total sales volume of the comparable product type exported to the Union.

               (16)

               It was also examined whether the domestic sales of each product type could be regarded as being made in the ordinary course of trade pursuant to Article 2(4) of the basic Regulation. This was done by establishing the proportion of domestic sales to independent customers on the domestic market which were profitable for each exported type of the product concerned during each of the periods.

               (17)

               For those product types where more than 80 % by volume of sales on the domestic market of the product type were above cost and the weighted average sales price of that type was equal to or above the unit cost of production, normal value, by product type, was calculated as the weighted average of the actual domestic prices of all sales of the type in question, irrespective of whether those sales were profitable or not.

               (18)

               Where the volume of profitable sales of a product type represented 80 % or less of the total sales volume of that type, or where the weighted average price of that type was below the unit cost of production, normal value was based on the actual domestic price, which was calculated as a weighted average price of only the profitable domestic sales of that type made during each of the periods.

               (19)

               Wherever domestic prices of a particular product type sold by the company could not be used in order to establish normal value, the normal value was constructed in accordance with Article 2(3) of the basic Regulation.

               (20)

               When constructing normal value pursuant to Article 2(3) of the basic Regulation, the amounts for selling, general and administrative costs and for profits have been based, pursuant to the introductory phrase of Article 2(6), of the basic Regulation, i.e. on the actual data pertaining to the production and sales, in the ordinary course of trade, of the like product, by the company.

         2.2.2.   Export price

               (21)

               The company’s export sales to the Union are made through the Swiss branch of its related company RFAI which during the RIP performed all import functions in relation to the goods entering into free circulation in the Union, i.e. that of a related importer.

               (22)

               The export price was thus established in accordance with Article 2(9) of the basic Regulation, on the basis of prices at which the imported products were first resold to an independent buyer, adjusted for all costs, incurred between importation and resale, as well as a reasonable margin for SG&A and for profits. For this purpose, in the absence of new information from independent importers concerning profits accruing, use was made of the profit rate applied in the original investigation, namely 6 %.

               (23)

               The applicant claimed that RFAI should be treated as part of the same single economic entity (SEE) and that consequently when determining the export prices no deduction should be made for SG&A and profit of RFAI.

               (24)

               This claim can not be accepted for the following reasons:

                           —

                           the two exporting producers have their own export sales department,

                           —

                           RFAI is strongly involved in the international activity of the Group (customer assistance, logistics and schedule of the deliveries, purchasing of capital goods and key raw materials, etc.),

                           —

                           the Swiss branch of RFAI is performing all the functions normally performed by a related importer in the EU,

                           —

                           RFAI sells ferro-silicon in its own name and for its own account to unrelated customers in the EU and elsewhere,

                           —

                           RFAI has a purchase-sales relationship with the two related Russian producers KF and CHEM,

                           —

                           each company drafts its own financial report and no consolidated financial report exists, and

                           —

                           each company files its own tax return with the respective authorities.

                     Accordingly, the claim that no deduction should be made for SG&A and profit in the construction of the export price had to be rejected. The applicant’s comments on this point in reply to the final disclosure will be discussed below (point 2.3).

               (25)

               The applicant also claimed that no deduction of the anti-dumping duty should be made in the calculation of the export price in accordance with the Article 11(10) of the basic Regulation, since the duty is duly reflected in resale prices and the subsequent selling prices in the Union. With respect to this claim, the investigation has established that the weighted average resale prices of ferro-silicon in the Union have increased in comparison with the prices in the original investigation and the current resale export prices are largely more than 22,7 % higher than such prices in the original investigation. Therefore, it can be concluded that the anti-dumping duty is duly reflected in the applicant’s resale prices. As a result, this claim of the applicant could be accepted and, in the calculation of the constructed export prices in accordance with Article 2(9) of the basic Regulation, no deduction of the anti-dumping duties has been carried out.

         2.2.3.   Comparison

               (26)

               The normal value and the export price were compared on an ex-works basis. For the purpose of ensuring a fair comparison between the normal value and export price, due allowance in the form of adjustments was made for transport costs, insurance costs, terminal and handling costs, credit costs, and commissions, where applicable and justified, in accordance with Article 2(10) of the basic Regulation.

         2.2.4.   Dumping margin

               (27)

               As provided for under Article 2(11) of the basic Regulation, the weighted average normal value by type was compared with the weighted average export price of the corresponding type of the product concerned. The outcome showed the existence of dumping.

               (28)

               In order to calculate the dumping margin, the Institutions, as in the original investigation, noted that CHEM and KF are closely related. As in the original investigation, and in line with the Institutions’ standard practice, a single dumping margin was calculated for the whole Group. In the method used for doing so in the final disclosure, the amount of dumping was calculated for each individual exporting producer before determining a weighted average rate of dumping for the group as a whole. It should be noted that this methodology was different from the methodology applied in the original investigation, where the dumping calculation was done by collapsing all relevant data with regard to domestic sales, cost of production, profitability and sales in the Union of the producing entities. The applicant claimed that applying this methodology would be contrary to Article 11(9) of the basic Regulation. This issue, too, will be returned to below (point 2.3).

         2.3.   Analysis of the reactions to final disclosure relating to the dumping margin during the RIP.

               (29)

               The applicant submitted several comments on certain aspects of the calculations such as cost of production, SG&A, profit margin, normal value and allowances. All these comments were considered and, where appropriate, clerical errors were corrected. Accordingly, the definitive findings have been modified.

               (30)

               In addition, the applicant requested the Commission to express the dumping amount on the basis of a cif value that they constructed themselves for the purposes of this investigation, therefore making reference to Article 2(9) of the basic Regulation. The claim was based on the grounds that the price declared to customs authorities is a transfer price which would perhaps be the correct price for customs purposes, but not a price that should be used when calculating dumping in anti-dumping proceedings. This claim has to be rejected because the difference between the export price and the normal value, i.e. the dumping amount, should be expressed on the same basis as the one which is subsequently used by customs authorities to determine any duty to be collected. This is in fact the cif value declared by the applicant to customs authorities. Consequently, the latter was used in the calculations.

               (31)

               With regards to the calculation of the cost of production, the applicant contested the Commission approach to use the average purchase price of a main cost item from an unrelated supplier in place of the actual price paid to a related supplier of the same cost item in the construction of the normal value. This claim has to be rejected because the price charged by the related supplier was significantly lower than the price paid for the same raw material to an independent supplier. This price, therefore, cannot be considered as an arm’s length price. Consequently, this cost element needed to be adjusted.

               (32)

               Following disclosure, the applicant claimed that packing costs were not treated consistently when comparing export prices with normal values. This issue was investigated and, where applicable, clerical errors were corrected.

               (33)

               The applicant commented also on the exclusion of the export transactions of a particular product type. The sales of this product type in the Union represented less than 5 % of the applicant’s sales in the Union of the product concerned during the RIP. This point has to be rejected given that no sales of this product type were made on the domestic market neither specific cost of production had been provided. As this product type had been exported to the EU in low volumes during the RIP, it was therefore considered not appropriate to resort to constructing the normal value on the basis of manufacturing costs of other product types, thereby making adjustments for product differences.

               (34)

               In addition and as explained above, in particular regarding two important points of the dumping margin calculation, namely: (i) the question whether CHEM, KF and RFAI form a single economic entity (6) and (ii) the calculation of an individual amount of dumping for CHEM on the one hand, and KF on the other hand (7), the applicant made detailed comments in its reaction to the definitive disclosure.

               (35)

               Regarding the first claim, and in particular on the points put forward by the applicant in its reaction to the definitive disclosure, the following is observed.

               (36)

               The applicant reiterated its position that the two exporting producers and the related trader RFAI are ultimately owned and controlled by the same beneficiaries and that it, therefore, would have no autonomy and simply follow the instructions of the owners of the applicant. It acknowledged all the elements listed in recital 24 above, but it disagreed to the Institutions’ appreciation thereof as they would have no bearing on whether CHEM, KF and RFAI are all parts of an SEE.

               (37)

               The Institutions reject the applicant’s comments. The criteria already listed above, are, especially if all taken together, well-grounded to justify the rejection of the applicant’s claim. All the elements listed in recital 24 above point at a group structure where all the companies are distinctive legal entities in which KF and CHEM performed the complete function of an exporting producers (production and export function) while RFAI operates mainly as a related trader/importer in the EU.

               (38)

               Regarding the second claim, it is not necessary to take a final position on this matter in the context of this review investigation. This results from the combination of two reasons. First, even if this claim were accepted (in addition to the acceptance, where appropriate, of the claims referred to in recital 29 above), the applicant would still have been found dumping on the EU market, during the RIP, at a dumping margin of approximately 13 %. Second, as explained below, in any case there is currently insufficient evidence to consider the dumping margin during the RIP as a lasting one.

               (39)

               In its reaction to definitive disclosure, the Union industry argued that, as a result of the review investigation, the duty on the applicant’s products should be increased, because, assuming that all of the applicant’s claims would be refused, the dumping margin found during the RIP was higher than the applicable duty. However, since, as explained below, there is insufficient evidence of a lasting change in circumstances, there is no justification for modifying the duty, neither upward nor downward.

         2.4.   Analysis of the question whether there is a lasting change in circumstances justifying a reduction or removal of the duty

               (40)

               Nevertheless, in spite of the acceptance of certain of the applicant’s claims as described above, it is still found to have been dumping on the EU market, during the RIP, at a dumping margin of at least 13 %. Moreover, as will be explained below, in any case there is insufficient evidence to consider the dumping margin during the RIP as a lasting one.

               (41)

               The applicant based its reasoning why there is a lasting change of circumstances on the following points:

               (42)

                           (i)

                           Firstly, the applicant referred to the changes in the export sales structure of the group, which, coupled with the exploration of new growing markets, would have contributed to higher export prices of ferro-silicon to all export markets, including in the EU, in comparison to the prices during the original investigation. However, the applicant did not provide any substantiated evidence in order to show the link between the new corporate structure, exploration of new growing markets and higher prices on the EU market. Nor did the findings of the investigation indicate such a link. On the contrary, while export prices were clearly higher in the RIP as compared to the prices observed during the investigation period of the original investigation, they have nevertheless been extremely volatile. As an example, within the RIP, the difference between the lowest and highest transaction price per tonne of the most sold model on the EU market was more than 100 %. A similar volatility could be observed on the domestic market, but the price trend on the EU market was not comparable to the price trend on the domestic market. This is also true for the 12-month period preceding the RIP which was closely looked at in the framework of a parallel refund investigation. Indeed, the export sales prices appear to have simply followed the global market prices.

               (43)

               Following disclosure, similar arguments were used by the applicant. However, again insufficient evidence was provided. It is therefore concluded that there is insufficient evidence, at this point in time, that these higher export prices by the applicant are anything other than a consequence of the prevailing market prices (in particular those on the EU market) during the RIP. In other words, there is insufficient evidence that the changes by the applicant in its corporate export structure were the cause of these higher prices, and that therefore these prices can be expected to remain at similar (or higher) levels in the future. In particular, contrary to what the applicant implies, even assuming that the new structure has made the group more efficient, this does not mean that in the future its export prices to the EU will be high and not result in dumping.

               (44)

                           (ii)

                           Secondly, the applicant declared that its export prices to other markets were in line with or even higher than its sales prices to the Union. Significant investments had been made to better supply other markets. Thus, a reduction or removal of the antidumping measures in relation to the applicant would not create an incentive to increase exports to the EU and/or reduce prices thereof.

               (45)

               However, this claim cannot lead to a removal or decrease of the measures in force. It is recalled that, even according to the applicant itself, during the RIP it was still dumping. Moreover, the applicant itself highlighted that the EU remains one of its traditional markets. This is corroborated by the fact that the volumes sold by the applicant in the EU are still very significant; if one compares the sales volumes with the EU consumption during the IP of the original investigation (8), they would represent a significant market share (between 5 and 20 %, the precise figures cannot be disclose for reasons of confidentiality).

               (46)

               After disclosure the applicant reiterated its position that the new market opportunities would be in other markets (India, Asia and United States) rather in the EU. However, the applicant did not provide any substantial evidence to support its market strategies. The still existing dumping margin during the RIP, the lack of data on other markets and the volatility of the export sales price in the international market are all elements that do not support this claim which, therefore, has to be rejected.

               (47)

                           (iii)

                           Thirdly, in the applicant’s view, the Russian domestic market, with significant steel production, remains one of its most important markets and the demand for the like product in Russia is expected to grow. Domestic and export prices of ferro-silicon would also grow much faster than cost of production. The applicant would thus be likely to increase its sales on the domestic market further, also because, according to the applicant, the sole other Russian producer of ferro-silicon would since a recent change of ownership produce predominantly for captive consumption.

               (48)

               Even if all these allegations are assumed to be true, it nevertheless remains the case that during the RIP, the applicant was dumping at a considerable margin, and at volatile prices. Moreover, as explained above, the volumes sold by the applicant to the EU during the RIP do not suggest that it has shifted away from that market or that it intends to do so in the near future.

               (49)

               In its comments to the disclosure, the applicant asserted that the only reasoning presented in the disclosure by the Commission to deny the relevance of the increasing demand on the domestic market would be the significance of the dumping margin found. Furthermore, the applicant sustained that the Commission, although it acknowledged many of the key points relating to the Russian market, fails to draw the adequate conclusion from these arguments.

               (50)

               These assertions have to be rejected. Firstly, not only the dumping findings but also the volumes findings speak against this argument. Secondly, the Institutions note that no acknowledgment was made by the Commission and no conclusive independent data was provided to support the claim that the demand for the product concerned is expected to grow in Russia and that export prices of the group would grow much faster than cost of production.

               (51)

                           (iv)

                           Fourthly, the applicant pointed out that its Russian production sites of ferro-silicon had been working at full capacity for years, that it had no plans to increase its overall production capacity of ferro-silicon in the foreseeable future and that there were no indications to the contrary.

               (52)

               However, a significant recovery of capacities after the financial crisis of 2009 was noted and the applicant reported an expansion of capacities by 10 %-20 % (range provided for reasons of confidentiality) as compared to the period prior to the 2009 financial crisis.

               (53)

               Following disclosure, the applicant submitted that a comparison of the post-RIP production capacity with that during the reference period was not appropriate as the applicant would have anticipated the 2009 financial crisis and, therefore, already reduced the production capacity. This argument cannot be accepted; an expansion of reported capacities by 10 %-20 % can be observed as compared to 2007 — not 2009 when capacities were at their lowest levels. Moreover, the 2009 financial crisis cannot yet have impacted the 2007 production capacity of the applicant.

         2.5.   Conclusion: insufficient evidence of lasting nature of changed circumstances

               (54)

               The analysis of the applicant’s claims with regard to the lasting nature of the changed circumstances, as summarised above, lead to the conclusion that there is currently insufficient evidence that any changed circumstances are of a lasting nature. The applicant’s export prices, and therefore its dumping margin, appear likely to continue to fluctuate, following, in particular, the development of world market prices. To the extent that the applicant has shown certain changed circumstances they can, therefore, not be considered to show that the pricing behaviour of the applicant during the RIP is of a lasting nature. It is therefore concluded that it would be premature and therefore unjustified to lower the duty at this point in time.

         3.   UNDERTAKINGS

               (55)

               The applicant together with its related importer offered a price undertaking in accordance with Article 8(1) of the basic Regulation.

               (56)

               The investigation confirmed that the price of the product is highly volatile. As already mentioned in recital 42 above, it was established that the applicant’s sales prices in the Union during the RIP varied very significantly. The product is therefore not suited for a fixed price undertaking. Although an indexation mechanism was proposed by the exporter, it was not possible to establish a correlation between the price volatility of the finished product and the indexation source proposed, in particular as it also related to the finished product and referred to prices which were influenced by dumped imports. Therefore, the proposed indexation was considered not appropriate.

               (57)

               As regards company specific risks, it was established that due to the complexity of the company structure, the risk of cross-compensation is very high: other products than the product concerned could be sold via a trader outside the Union to another related third country branch and then be re-sold to the Union.

               (58)

               Finally, as the product itself exists in different qualities and is mainly imported in bulk form, it would not be possible for customs authorities to distinguish the chemical specification (potentially subject to different Minimum Import Prices) without individual analysis of each transaction, thus rendering the monitoring very burdensome, if not impracticable.

               (59)

               The undertaking offer was therefore rejected.

         4.   TERMINATION OF THE REVIEW

               (60)

               In view of the findings of dumping as well as the absence of a proven lasting nature of the changed circumstances, it is concluded that JSC Chelyabinsk Electrometallurgical Integrated Plant and its related company JSC Kuznetsk Ferroalloy Works should continue to be subject to the duty level specified in the original Regulation, i.e. 22,7 %,

         HAS ADOPTED THIS REGULATION:
   Article 1
   The partial interim review of the anti-dumping measures applicable to imports of ferro-silicon originating, inter alia, in Russia, initiated pursuant to Article 11(3) of Regulation (EC) No 1225/2009 is hereby terminated without amending the level of the anti-dumping measure in force.
   Article 2
   This Regulation shall enter into force on the day following 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, 16 January 2012.

            For the Council

            The President

         N. WAMMEN

      (1)  OJ L 343, 22.12.2009, p. 51.

      (2)  OJ L 55, 28.2.2008, p. 6.

      (3)  OJ C 290, 27.10.2010, p. 15.

      (4)  See, in particular [2009] ECR II-4133. Case T-143/06 MTZ Polyfilms Ltd v Council.

      (5)  As will be explained below, normal value, export price and their comparison were first calculated/performed for CHEM and KF, separately. To clarify this, in this part, the word ‘company’ is sometimes used rather than ‘applicant’, since ‘applicant’, as stated above, refers to CHEM and KF jointly.

      (6)  See recital 23.

      (7)  See recital 27.

      (8)  The Institutions use the data on EU consumption during the IP of the original investigation rather than the RIP. That is because, since this review is limited to the examination of dumping — and does not cover injury issues — the Institutions do not have verified data regarding EU consumption during the RIP.


title: Commission Implementing Regulation (EU) 2015/944 of 18 June 2015 establishing the standard import values for determining the entry price of certain fruit and vegetables

text:
               19.6.2015

               EN

               Official Journal of the European Union

               L 154/10

         COMMISSION IMPLEMENTING REGULATION (EU) 2015/944
   of 18 June 2015
   establishing the standard import values for determining the entry price of certain fruit and vegetables
   THE EUROPEAN COMMISSION,
   Having regard to the Treaty on the Functioning of the European Union,
   Having regard to Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007 (1),
   Having regard to Commission Implementing Regulation (EU) No 543/2011 of 7 June 2011 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors (2), and in particular Article 136(1) thereof,
   Whereas:

               (1)

               Implementing Regulation (EU) No 543/2011 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in Annex XVI, Part A thereto.

               (2)

               The standard import value is calculated each working day, in accordance with Article 136(1) of Implementing Regulation (EU) No 543/2011, taking into account variable daily data. Therefore this Regulation should enter into force on the day of its publication in the Official Journal of the European Union,

         HAS ADOPTED THIS REGULATION:
   Article 1
   The standard import values referred to in Article 136 of Implementing Regulation (EU) No 543/2011 are fixed in the Annex to this Regulation.
   Article 2
   This Regulation shall enter into force on the day 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, 18 June 2015.

            For the Commission,

            On behalf of the President,

         Jerzy PLEWA

            Director-General for Agriculture and Rural Development

      (1)  OJ L 347, 20.12.2013, p. 671.

      (2)  OJ L 157, 15.6.2011, p. 1.

      ANNEX

         Standard import values for determining the entry price of certain fruit and vegetables

                  (EUR/100 kg)

                  CN code

                  Third country code (1)

                  Standard import value

                  0702 00 00

                  MA

                  145,0

                  MK

                  69,6

                  TR

                  68,7

                  ZZ

                  94,4

                  0707 00 05

                  AL

                  13,4

                  MK

                  36,2

                  TR

                  121,6

                  ZZ

                  57,1

                  0709 93 10

                  TR

                  116,3

                  ZZ

                  116,3

                  0805 50 10

                  AR

                  141,4

                  BO

                  147,7

                  BR

                  107,1

                  ZA

                  147,0

                  ZZ

                  135,8

                  0808 10 80

                  AR

                  157,4

                  BR

                  102,9

                  CL

                  151,3

                  NZ

                  138,6

                  US

                  180,2

                  ZA

                  129,4

                  ZZ

                  143,3

                  0809 10 00

                  TR

                  248,6

                  ZZ

                  248,6

                  0809 29 00

                  TR

                  344,6

                  ZZ

                  344,6

         (1)  Nomenclature of countries laid down by Commission Regulation (EU) No 1106/2012 of 27 November 2012 implementing Regulation (EC) No 471/2009 of the European Parliament and of the Council on Community statistics relating to external trade with non-member countries, as regards the update of the nomenclature of countries and territories (OJ L 328, 28.11.2012, p. 7). Code ‘ZZ’ stands for ‘of other origin’.


title: Implementing Regulation of the Council (EU) No 400/2010 of 26 April 2010 extending the definitive anti-dumping duty imposed by Regulation (EC) No 1858/2005 on imports of steel ropes and cables originating, inter alia, in the People’s Republic of China to imports of steel ropes and cables consigned from the Republic of Korea, whether declared as originating in the Republic of Korea or not, and terminating the investigation in respect of imports consigned from Malaysia

text:
               11.5.2010

               EN

               Official Journal of the European Union

               L 117/1

         IMPLEMENTING REGULATION OF THE COUNCIL (EU) No 400/2010
   of 26 April 2010
   extending the definitive anti-dumping duty imposed by Regulation (EC) No 1858/2005 on imports of steel ropes and cables originating, inter alia, in the People’s Republic of China to imports of steel ropes and cables consigned from the Republic of Korea, whether declared as originating in the Republic of Korea or not, and terminating the investigation in respect of imports consigned from Malaysia
   THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty on the Functioning of the European Union,
   Having regard to Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (1) (the ‘basic Regulation’), and in particular Article 13 thereof,
   Having regard to the proposal submitted by the European Commission after consulting the Advisory Committee,
   Whereas:
   1.   PROCEDURE

   1.1.   Existing measures and former investigations

               (1)

               By Regulation (EC) No 1796/1999 (2), (the ‘original Regulation’), the Council imposed definitive anti-dumping duties of 60,4 % on imports of steel ropes and cables (SWR) originating, inter alia, in the People’s Republic of China (the ‘PRC’ or ‘China’). These measures will hereinafter be referred to as ‘the original measures’ and the investigation that led to the measures imposed by the original Regulation will be hereinafter referred to as ‘the original investigation’.

               (2)

               In 2004, after it was found that the original measures were circumvented by the transhipment of Chinese-origin SWR via Morocco in accordance with Article 13 of the basic Regulation, the measures were extended by Council Regulation (EC) No 1886/2004 (3) to imports of the same SWR consigned from Morocco. Similarly, after it was found the circumvention of the original measures on imports from Ukraine took place via Moldova following an investigation pursuant to Article 13 of the basic Regulation, the measures were extended by Council Regulation (EC) No 760/2004 (4) to imports of the same steel ropes and cables consigned from Moldova.

               (3)

               By Regulation (EC) No 1858/2005 (5) the Council, following an expiry review (the ‘expiry review’), imposed, in accordance with Article 11(2) of the basic Regulation, a definitive anti-dumping duty on imports of SWR originating, inter alia, in the People’s Republic of China, at the level of the original measures. The duty thus imposed remains in force and will hereinafter be referred to as ‘the measures in force’.

         1.2.   Request

               (4)

               On 29 June 2009, the Commission received a request pursuant to Article 13(3) of the basic Regulation to investigate the possible circumvention of the anti-dumping measures imposed on SWR originating in the People’s Republic of China. The request was submitted by the Liaison Committee of the EU Wire Rope Industries (EWRIS) on behalf of the Union producers of steel ropes and cables (the ‘applicant’).

               (5)

               The request alleged that, following the imposition of the anti-dumping measures, a significant change in the pattern of trade involving exports from the PRC and the Republic of Korea and Malaysia to the Union took place, for which there was insufficient due cause or economic justification other than the imposition of the measures in force. This change in the pattern of trade stemmed allegedly from the transhipment of SWR originating in the PRC via the Republic of Korea and Malaysia.

               (6)

               The request further alleged that the remedial effects of the measures in force were being undermined both in terms of quantity and price. In addition, there was sufficient evidence that these increased imports from the Republic of Korea and Malaysia were made at prices well below the non-injurious price established in the original investigation.

               (7)

               Finally, the applicant alleged that the prices of SWR consigned from the Republic of Korea and Malaysia were dumped in relation to the normal value established for the like product during the original investigation.

         1.3.   Initiation

               (8)

               Having determined, after consulting the Advisory Committee, that sufficient prima facie evidence existed for the initiation of an investigation pursuant to Article 13 of the basic Regulation, the Commission initiated an investigation by Regulation (EC) No 734/2009 (6) (the ‘initiating Regulation’). Pursuant to Articles 13(3) and 14(5) of the basic Regulation, the Commission, by the initiating Regulation, also directed the customs authorities to register imports of SWR consigned from the Republic of Korea and Malaysia.

         1.4.   Investigation

               (9)

               The Commission officially advised the authorities of the PRC, the Republic of Korea and Malaysia, the producers/exporters and the traders in those countries, as well as the importers in the Union known to be concerned and the applicant Union industry of the initiation of the investigation. Questionnaires were sent to the known producers/exporters in the PRC, the Republic of Korea and Malaysia known to the Commission from the request or through the Missions of the Republic of Korea and Malaysia to the European Union or which made themselves known within the deadlines specified in Article 3(1) of the initiating Regulation. Questionnaires were also sent to traders in the Republic of Korea and Malaysia and to the importers in the Union named in the request. Interested parties were given the opportunity to make their views known in writing and to request a hearing within the time limit set in the initiating Regulation.

               (10)

               Fifteen producers/exporters and two traders in the Republic of Korea, two producers/exporters in Malaysia, five producers/exporters in China, two related importers, ten unrelated importers in the Union and the European Wire Rope Importers Association made themselves known. Several other companies claimed that they are not involved in the production or export of the product under investigation.

               (11)

               The following companies submitted replies to the questionnaires and verification visits were subsequently carried out at their premises:

                              Producers/exporters in the Republic of Korea:

                                       —

                                       Bosung Wire Rope Co., Ltd, Kimhae-Si,

                                       —

                                       Chung Woo Rope Co., Ltd, Busan,

                                       —

                                       CS Co., Ltd, Yangsan-City,

                                       —

                                       Cosmo Wire Ltd, Ulsan,

                                       —

                                       Dae Heung Industrial Co., Ltd, Haman – Gun,

                                       —

                                       DSR Wire Corp., Suncheon-City and its related company DSR Corp., Busan,

                                       —

                                       Goodwire Mfg., Co., Ltd, Yangsan-city,

                                       —

                                       Kiswire Ltd, Seoul,

                                       —

                                       Line Metal Co., Ltd, Changnyoung-Gun,

                                       —

                                       Manho Rope & Wire Ltd, Busan,

                                       —

                                       Shin Han Rope Co., Ltd, Incheon,

                                       —

                                       Ssang Yong Cable Mfg. Co., Ltd, Busan,

                                       —

                                       Young Heung Iron & Steel Co., Changwon City

                              Trader in the Republic of Korea:

                                       —

                                       Trion Co. Ltd, Busan

                              Producers/exporters in Malaysia:

                                       —

                                       Kiswire Sdn. Bhd., Johor Bahru,

                                       —

                                       Southern Wire Industries (M) Sdn. Bhd., Shah Alam, Selangor

                              Producers/exporters in the PRC:

                                       —

                                       Qingdao DSR, Qingdao,

                                       —

                                       Kiswire Qingdao Ltd, Qingdao,

                                       —

                                       Young Heung (Taicang) Steel Wire Rope Co., Ltd, Tai Cang City

                              Related importers:

                                       —

                                       Kiswire Europe, the Netherlands,

                                       —

                                       Verope AG, Switzerland.

         1.5.   Investigation period

               (12)

               The investigation period covered the period from 1 July 2008 to 30 June 2009 (the ‘IP’). Data was collected for the period from 1999 up to the end of the IP to investigate the alleged change in the pattern of trade.

         2.   RESULTS OF THE INVESTIGATION

   2.1.   General considerations

               (13)

               In accordance with Article 13(1) of the basic Regulation, the assessment of the existence of circumvention was made by analysing successively whether there was a change in the pattern of trade between third countries and the Union, if this change stemmed from a practice, process or work for which there was insufficient due cause or economic justification other than the imposition of the duty, if there was evidence of injury or that the remedial effects of the duty were being undermined in terms of the prices and/or quantities of the like product, and whether there was evidence of dumping in relation to the normal values previously established for the like product, if necessary in accordance with the provisions of Article 2 of the basic Regulation.

         2.2.   Product concerned and the like product

               (14)

               The product concerned is, as defined in the original investigation, steel ropes and cables, including locked coil ropes, excluding ropes and cables of stainless steel, with a maximum cross-sectional dimension exceeding 3 mm (in industry terminology often referred to as SWR), originating in the People’s Republic of China, currently falling within CN codes ex 7312 10 81, ex 7312 10 83, ex 7312 10 85, ex 7312 10 89 and ex 7312 10 98 (the product concerned).

               (15)

               The product under investigation is steel ropes and cables including locked coil ropes, excluding ropes and cables of stainless steel, with a maximum cross-sectional dimension exceeding 3 mm, consigned from the Republic of Korea and Malaysia, whether declared as originating in the Republic of Korea and Malaysia or not (the product under investigation), currently falling within the same CN codes as the product concerned.

               (16)

               The investigation showed that the SWR exported to the Union from the PRC and those consigned from the Republic of Korea and Malaysia to the Union have the same basic physical and technical characteristics and have the same uses, and are therefore to be considered as like products within the meaning of Article 1(4) of the basic Regulation.

         2.3.   Degree of cooperation and determination of the trade volumes

               (17)

               As stated above in recital 11, fourteen exporters/producers in the Republic of Korea, one Korean trader, two exporting producers in Malaysia and three exporting producers in China cooperated by submitting questionnaire replies.

               (18)

               After the submission of its questionnaire reply, one Korean company notified the Commission that it went bankrupt and therefore it withdrew its cooperation.

               (19)

               In the case of another Korean company the application of Article 18(1) was found to be warranted for the reasons set out in recital 47.

               (20)

               The cooperating Korean exporting producers covered 81 % of the total Korean exports to the Union in the IP as reported in Comext. Therefore, even though cooperation was high, the cooperating producers/exporters did not completely cover the overall export volume of SWR from the Republic of Korea. The overall export volumes were thus based on Comext.

               (21)

               There are two known producers in Malaysia. The total export quantities of the two cooperating companies in Malaysia exceeded the import volume of the product under investigation recorded in Comext. Therefore the exporting producers were considered to be reflecting the total exports of SWR from Malaysia to the Union.

               (22)

               The applicant claimed that Comext data were unreliable and therefore total export volumes from Malaysia to the Union should not be determined on this basis. However, during the investigation, import data were counter checked with Malaysian official statistics and with the verified questionnaire replies. This analysis did not reveal that actual exports from Malaysia exceeded the exports reported by the cooperating Malaysian companies. The applicant’s argument had therefore to be rejected.

               (23)

               There was a low level of cooperation by producers/exporters in the PRC, with only three exporters/producers submitting a questionnaire reply. Moreover, none of those companies exported the product concerned to the Union and only in very minor quantities to Malaysia. The exports of the cooperating companies covered 41 % of the total Chinese exports to the Republic of Korea. Therefore, on the basis of the information submitted by the cooperating parties no reasonable determination could be made as to export volumes of SWR from the PRC.

               (24)

               Given the above, findings in respect of imports of SWR into the Union and exports of SWR from the PRC to the Republic of Korea and Malaysia had to be made partially on the basis of facts available in accordance with Article 18 of the basic Regulation. Comext data was used to determine overall import volumes from the PRC to the Union. Chinese, Korean and Malaysian national statistics were used for the determination of the overall imports to the Republic of Korea and Malaysia from the PRC. Data were cross-checked among the different statistical sources and confirmed by other statistical databases such as the Global Trade Atlas, China Export Database and the data provided by the customs authorities of the Republic of Korea and Malaysia.

               (25)

               The import volume recorded in Korean, Malaysian and Chinese statistics covered a larger product group than the product concerned or the product under investigation. Therefore, the statistics were adjusted accordingly based on the findings of the present investigation.

         2.4.   Change in the pattern of trade

               (26)

               Imports of SWR from China to the Union had first dropped close to zero subsequent to the imposition of the measures in 1999. After a gradual increase between 2003 and 2006 — with imports peaking in the latter year at the level of 8 656 tonnes — the trend has reversed and imported amounts have fallen again by more than 40 % between 2006 and the IP.

               (27)

               On the other hand, total imports of Korean SWR to the Union have increased significantly between 1999 and 2008 from approximately 11 123 tonnes to 48 214 tonnes. The yearly increase in absolute terms was the most significant in the years 2002 and 2003 and more recently in 2006 and 2007.

               (28)

               Based on information in the complaint and that provided by the Mission of the Republic of Korea to the European Union, the present investigation is considered to have covered the vast majority, if not all, of the genuine producers of the product under investigation in Korea. Therefore it was considered that the exports by non-cooperating Korean companies to the Union, which represented approximately 19 % of the total exports in terms of quantity from the Republic of Korea, are, apart from the producers mentioned in recitals 18 and 47, mainly exported by traders.

               (29)

               These companies have visibly increased their exports to the Union in 2006 and 2007. Exports in these years were about 20 % higher than in 2005, the first year for which data at this level is available. Exports of the non-cooperating companies have been diminishing as from 2008 which is to be seen in light of the investigation of the Korean authorities in this period as described in recital 52.

               (30)

               As far as Malaysia is concerned, both Comext data and the total export of the cooperating companies show that exports from Malaysia to the Union have also been continuously increasing in the past. The increase was the most significant and steady between 2005 and the IP when Malaysian exports to the Union doubled.

               (31)

               Table 1 shows import quantities of SWR from the abovementioned countries into the Union since the imposition of the measures in 1999 until the IP:

                  Table 1

                  Evolution of imports of SWR to the Union since the imposition of the measures

                  Source: Comext, Korean statistics (KITA)

                           Import volumes given in tonnes

                           1999

                           2000

                           2001

                           2002

                           2003

                           2004

                           PRC

                           N/A

                           414

                           283

                           394

                           913

                           2 809

                           Share of total imports

                           —

                           1 %

                           1 %

                           1 %

                           2 %

                           5 %

                           Republic of Korea

                           11 122

                           12 486

                           13 280

                           16 223

                           22 302

                           31 862

                           Share of total imports

                           —

                           29 %

                           32 %

                           37 %

                           47 %

                           52 %

                           Malaysia

                           2 989

                           2 366

                           4 171

                           3 371

                           4 836

                           4 426

                           Share of total imports

                           —

                           5 %

                           10 %

                           8 %

                           10 %

                           7 %

                           Import volumes given in tonnes

                           2005

                           2006

                           2007

                           2008

                           IP

                           PRC

                           4 945

                           8 656

                           6 219

                           6 795

                           4 987

                           Share of total imports

                           7 %

                           11 %

                           7 %

                           7 %

                           6 %

                           Republic of Korea

                           34 536

                           39 128

                           45 783

                           48 213

                           43 185

                           Share of total imports

                           50 %

                           50 %

                           55 %

                           53 %

                           50 %

                           Korean non-cooperating companies

                           11 577

                           14 042

                           14 160

                           10 287

                           8 391

                              Index (2005 = 100)

                           100

                           121

                           122

                           89

                           72

                           Malaysia

                           5 123

                           7 449

                           8 142

                           9 685

                           10 116

                           Share of total imports

                           7 %

                           10 %

                           10 %

                           11 %

                           12 %

                           Malaysian cooperating companies (index, 2006 = 100)

                           —

                           100

                           102

                           148

                           144

               (32)

               Looking at the pattern of the above three trade flows, it can be observed that particularly since 2005, Korean exporters and partly Malaysian exporters have significantly outsold and to some extent replaced Chinese exporters on the Union market in terms of volume.

               (33)

               Due to the global economic slowdown which coincides with the IP, traded volumes of SWR have decreased or the increase has slowed down between all countries concerned. The decrease was however the most significant in the case of imports from the PRC to the Union (– 27 %).

               (34)

               A dramatic increase of exports of steel wire ropes and cables (all diameters) can also be observed from China to the Republic of Korea within the same period: from a relatively insignificant amount in 1999 (2 519 tonnes) they increased to 78 822 tonnes in 2008. The increase was most significant between 2005 and 2008 when imports quadrupled. In recent years China was the largest exporter of SWR to Korea representing 89 % of the total imports of SWR in 2008. The estimated import for the product concerned only (products with a diameter above 3 mm), in 2008, was 58 885 tons.

               (35)

               Looking at imports of the non-cooperating Korean companies only, the same dramatic increase can be observed, i.e. imports from China by these companies have quadrupled by 2007 and 2008. Although imports have started to decrease afterwards, they remained well above the level of imports in 2005 continuing to represent very significant amounts.

                  Table 2

                  Import of Chinese products into the Republic of Korea between 1999 and the IP

                           1999

                           2000

                           2001

                           2002

                           2003

                           2004

                           2005

                           2006

                           2007

                           2008

                           IP

                           Import (tonnes, all diameters)

                           2 519

                           6 764

                           6 044

                           7 740

                           11 421

                           14 120

                           19 933

                           36 531

                           69 620

                           78 822

                           66 099

                              Yearly change (%)

                           —

                           169

                              –11

                           28

                           48

                           24

                           41

                           83

                           91

                           13

                              –16

                           Imports by Korean non-cooperating companies (tonnes, product concerned only)

                           N/A

                           N/A

                           N/A

                           N/A

                           N/A

                           N/A

                           7 166

                           18 053

                           33 907

                           29 717

                           22 004

                              Index (2005 = 100)

                           N/A

                           N/A

                           N/A

                           N/A

                           N/A

                           N/A

                           100

                           252

                           473

                           415

                           307

                              Source: Korean statistics (KITA), data provided by the Korean Customs Services, verified information provided by the cooperating producers

               (36)

               To establish the trend of the China to Malaysia trade flow of SWR, both Malaysian and Chinese statistics were considered. Both of these data are only available at a higher product group level than the product concerned. Furthermore they showed considerable differences. Therefore, no reliable data could be established in this regard.

               (37)

               The applicant claimed that the fact that no reliable data could be established would not be sufficient to conclude that no circumvention took place. As outlined in recitals 38 and 55, the evidence available in the current investigation, i.e. in particular production volume of the cooperating Malaysian exporting producers as well as their export sales to the Union showed that exports of SWR from Malaysia were of genuine Malaysian origin and therefore did not constitute circumvention. In this case, it was therefore irrelevant whether or not there were imports from China to Malaysia. The applicant’s claim was therefore rejected.

               (38)

               The evolution of the total production volume of cooperating producers in the Republic of Korea had remained stable between 2006 and the IP. Malaysian producers however have considerably increased their output during the same period.

                  Table 3

                  Production of SWR of the cooperating companies in the Republic of Korea and Malaysia

                           Production volumes given in tonnes

                           2006

                           2007

                           2008

                           IP

                           Republic of Korea

                           152 657

                           159 584

                           160 113

                           142 413

                              Index

                           100

                           105

                           105

                           93

                           Malaysia (indexed)

                           100

                           164

                           171

                           157

                              Source: Verified information provided by the cooperating producers

         2.5.   Conclusion on the change in the pattern of trade

               (39)

               The overall decrease of Chinese exports to the Union as from 2006 and the parallel increase of exports from the Republic of Korea and Malaysia and of exports from the PRC to the Republic of Korea after the imposition of the original measures and in particular until 2008 constituted a change in the pattern of trade between the abovementioned countries on the one hand and the Union on the other. In the case of the Republic of Korea, this conclusion could be reached both globally and, for the period between 2005 and 2007, also separately for the non-cooperating companies.

               (40)

               Comments were received claiming that the increase of exports of Korean SWR to the Union was stable over the years without any sudden increase; such an increase allegedly being a precondition to establishing a change in the pattern of trade. Furthermore, it was claimed that the increase should be regarded rather as the natural development of the Korean SWR industry.

               (41)

               Firstly, in accordance with Article 13 of the basic Regulation, a change in the pattern in trade is not exclusively defined as a sudden increase of imports of a country under investigation. Secondly, the investigation has shown that while Korean exports to the Union in 2006 and 2007 increased substantially, the output by Korean producers in those years was stable. It thus could not be concluded that the development of the Korean export volumes was solely due to the natural development of the Korean SWR industry. Finally, for the most part opposite trends between the China to Union trade flows and China to Korea and Korea to Union trade flows since 2006 clearly showed a change in the pattern of trade between the Union and third countries. These arguments therefore had to be rejected.

         2.6.   Nature of the circumvention practice

               (42)

               Article 13(1) requires that the change in the pattern of trade stems from a practice, process or work for which there is insufficient due cause or economic justification other than the imposition of the duty. The practice, process or work includes, inter alia, the consignment of the product subject to measures via third countries and the assembly of parts by an assembly operation in the Union or a third country. For this purpose the existence of assembly operations was determined in accordance with Article 13(2) of the basic Regulation.

               (43)

               The global analysis of the final destinations of steel ropes and cables produced or imported to and from Korea by the cooperating and non-cooperating companies — including imports to and from countries other than the PRC and the Union — showed that a certain amount of exports from Korea to the Union were Chinese-origin imports into Korea, because these imports were not sourced from other third countries or produced by the domestic producers in Korea.

               (44)

               Moreover, the comparison of the total Korean export of SWR — as recorded in Korean statistics — and the verified information of the cooperating exporting producers concerning their production showed that production destined for export by Korean producers (118 856 tonnes) was significantly lower than the total exports from Korea (156 440 tonnes) in the IP. Given the high cooperation of Korean companies in this investigation, this difference cannot be explained by producers that may not have been cooperating in the investigation.

               (45)

               The investigation also revealed that some importers in the Union sourced Chinese origin SWR from Korean exporters not cooperating during the present investigation. This information was counter-checked with Korean trade databases which showed that at least some of the SWR exported by these non-cooperating companies was indeed sourced in China.

               (46)

               As for the cooperating companies it could be established that none of them transhipped the product concerned via the Republic of Korea in the IP. Some of them imported SWR from the PRC, but these were found to be exclusively sold on the domestic and other export markets.

               (47)

               In the case of one company it was found that it submitted false information in its questionnaire reply. Furthermore, during the verification visit access to information was partially denied. Therefore in accordance with Article 18(1) of the basic Regulation, findings with regard to this company were based on facts available. In accordance with Article 18(4), the company was informed of the intention to disregard the information submitted by it and was granted a time limit to provide further explanations.

               (48)

               Subsequent to disclosure, the company admitted that it had circumvented the measures in the past by falsifying the origin of products purchased from the PRC. On the other hand the company claimed that it submitted sufficient information regarding the production, sales and purchases during the IP which was verified on-spot. It further argued that this should be sufficient to determine that it had not circumvented the measures in force in the IP.

               (49)

               However, in view of the fact that circumvention by the company admitted to have engaged in circumvention practices and furthermore tried to mislead the investigation, it is considered appropriate to disregard the entirety of the company’s submission and not to exempt this company from the extended measures, as further outlined below in recital 77.

               (50)

               As explained in recital 18, one company notified the Commission that it went bankrupt and withdrew its cooperation. As above, findings with regard to this company had to be based on the facts available within the meaning of Article 18(1) of the basic Regulation.

               (51)

               On the basis of these facts it was concluded that although none of the cooperating Korean producers were found to be involved, transhipment was taking place during the IP and the preceding years. This is also confirmed by the findings with regard to the change of the pattern in trade as described above in recital 39.

               (52)

               It has to be noted that in 2007 OLAF started an investigation into transhipment of the same product through Korea. The Korean authorities are known to have carried out investigations into alleged circumvention practices at the same time and concluded that several companies, mainly traders, committed fraud by falsifying the origin of SWR imported from the PRC to Korea when re-exporting the product.

               (53)

               The existence of transhipment of Chinese-origin products via the Republic of Korea was therefore confirmed.

               (54)

               The sources of raw materials and the cost of production was analysed for each cooperating company in order to establish whether any assembly operation in the Republic of Korea was circumventing the measures according to the criteria of Article 13(2). In all cases the Chinese-origin raw material (wire rod or semi finished product) did not constitute 60 % or more of the total value of the parts of the final product. It was therefore not necessary to examine whether or not the 25 % threshold of value added was reached or not.

               (55)

               The investigation established that none of the cooperating producers in Malaysia imported the product concerned from China during the IP.

               (56)

               Based on the share of the exports by the cooperating companies to the Union within the total exports from Malaysia to the Union as recorded in Comext, it could be concluded that the increase of imports from Malaysia shown in the statistics can be explained fully by the increase of the cooperating companies’ exports. This conclusion is reinforced by the increase of the total production volume of the genuine Malaysian producers during the same period as described in recital 38.

               (57)

               The applicant questioned this finding without providing any further reason or evidence. This argument had therefore to be rejected.

               (58)

               The sources of raw materials and the cost of production was analysed for each cooperating company to establish whether any assembly operation in Malaysia is circumventing the measures according to the criteria of Article 13(2). In all cases the Chinese-origin raw material (wire rod or semi finished product) did not constitute 60 % or more of the total value of the parts of the final product. It was not necessary, therefore, to examine whether or not the 25 % threshold of value added was reached.

               (59)

               It could therefore be concluded that the change in the pattern of trade observed between the PRC, Malaysia and the Union did not stem from circumvention practices in Malaysia. Consequently, the investigation concerning imports of SWR consigned from Malaysia should be terminated.

         2.7.   Insufficient due cause or economic justification other than the imposition of the anti-dumping duty (Republic of Korea)

               (60)

               The investigation did not bring to light any other due cause or economic justification for the transhipment than the avoidance of the anti-dumping duty in force on SWR originating in China.

         2.8.   Undermining of the remedial effect of the anti-dumping duty (non-cooperating Korean companies)

               (61)

               To assess whether the imported products had, in terms of quantities and prices, undermined the remedial effects of the measures in force on imports of SWR from China, Comext data was used as the best data available concerning quantities and prices of exports by non-cooperating companies. The prices so determined were compared to the injury elimination level established for Union producers in the expiry review.

               (62)

               The increase of imports from Korea was considered to be significant in terms of quantities bearing in mind the size of the market as determined in the expiry review (recital 99 of Regulation (EC) No 1858/2005). The estimated Union consumption in the current investigation period gives a similar indication about the significance of these imports. The comparison of the injury elimination level as established in the expiry review and the weighted average export price showed significant underselling. It was therefore concluded that the measures are being undermined in terms of quantities and prices.

         2.9.   Evidence of dumping (non-cooperating Korean companies)

               (63)

               Finally, in accordance with Article 13(1) and (2) of the basic Regulation it was examined whether there was evidence of dumping in relation to the normal value previously established for the like or similar products.

               (64)

               In the expiry review the normal value was established on the basis of prices in Turkey, which in that investigation was found to be an appropriate market economy analogue country for the PRC. In the present investigation, it was established that the price of wire rod, the main input used in the production of SWR increased significantly since the expiry review. In addition, considering that the price developments of the raw materials were reflected in the export price during the IP, it was therefore deemed appropriate to up date the normal value as previously established by the development of raw material prices.

               (65)

               A significant part of Korean exports were found to be genuine Korean production. For this reason, in order to establish the export prices from the Republic of Korea which are affected by circumvention, only the exports of the non-cooperating producers/exporters was considered which was based on best facts available, i.e. on the average export price of SWR during the IP as reported in Comext.

               (66)

               For the purpose of a fair comparison between the normal value and the export price, due allowance, in the form of adjustments, was made for differences which affect prices and price comparability in accordance with Article 2(10) of the basic Regulation. Accordingly, adjustments were made for differences in indirect taxes, transport and insurance costs based on the average costs of the cooperating Korean producers/exporters in the IP.

               (67)

               In accordance with Articles 2(11) and 2(12) of the basic Regulation, dumping was calculated by comparing the weighted average normal value as established in the expiry review and the weighted average export prices during this investigation’s IP, expressed as a percentage of the CIF price at the Union frontier duty unpaid.

               (68)

               The comparison of the weighted average normal value and the weighted average export prices so established showed dumping.

         3.   MEASURES

               (69)

               Given the above, it was concluded that the definitive anti-dumping duty imposed on imports of SWR originating in China was circumvented by transhipment via the Republic of Korea pursuant to Article 13(1) of the basic Regulation.

               (70)

               In accordance with the first sentence of Article 13(1) of the basic Regulation, the measures in force on imports of the product concerned originating in the PRC, should be extended to imports of the same product consigned from the Republic of Korea, whether declared as originating in the Republic of Korea or not.

               (71)

               The measures to be extended should be the ones established in Article 1(2) of Regulation (EC) No 1858/2005, which are a definitive anti-dumping duty of 60,4 % applicable to the CIF net, free-at-Union-frontier price, before customs duty.

               (72)

               In accordance with Articles 13(3) and 14(5) of the basic Regulation, which provides that any extended measure should apply to imports which entered the Union under registration imposed by the initiating Regulation, duties should be collected on those registered imports of SWR consigned from Korea.

         4.   TERMINATION OF THE INVESTIGATION AGAINST MALAYSIA

               (73)

               In view of the findings regarding Malaysia, the investigation concerning the possible circumvention of anti-dumping measures by imports of SWR consigned from Malaysia should be terminated and the registration of imports of SWR consigned from Malaysia,introduced by the initiation Regulation, should be discontinued.

               (74)

               The applicant contested the proposal to terminate the investigation against Malaysia. Having already addressed all its arguments above, there was no other reason to reconsider the proposal.

         5.   REQUESTS FOR EXEMPTION

               (75)

               The fourteen companies in the Republic of Korea submitting a questionnaire reply requested an exemption from the possible extended measures in accordance with Article 13(4) of the basic Regulation.

               (76)

               As explained in recital 18, one of these companies subsequently ceased cooperation. Its request for exemption in accordance with Article 13(4) had therefore to be rejected.

               (77)

               Another company as outlined in recital 47 submitted false information and denied access to information requested. Its request for exemption in accordance with Article 13(4) could therefore not be granted.

               (78)

               A third company in the Republic of Korea did not export the product either during the IP or after that period and no conclusions could be drawn as to the nature of its operations. Therefore, an exemption to this company could not be granted. However, should it appear, after extension of the anti-dumping measures in force, that the conditions in Article 11(4) and 13(4) of the basic Regulation are fulfilled; the company’s situation may be reviewed upon request.

               (79)

               That third company has objected and reiterated its request for an exemption. However, it did not come forward with new information and evidence that could have altered the above decision. Therefore, its request could not be accepted.

               (80)

               None of the other cooperating companies in the Republic of Korea were found circumventing the measures. Furthermore, none of the companies requesting exemption are related to companies engaged in circumvention practices. In particular, it is noted that four of the producers concerned are related to PRC companies that are subject to the original measures. However, there is no evidence that such relationship was established or used to circumvent the measures in place on imports originating in China. Exemptions should thus be granted to all other cooperating companies not mentioned in recitals 76 to 78.

               (81)

               It is considered that special measures are needed in this case in order to ensure the proper application of such exemptions. These special measures are the requirement of the presentation to the Customs authorities of the Member States of a valid commercial invoice, which shall conform to the requirements set out in the Annex to this Regulation. Imports not accompanied by such an invoice shall be made subject to the extended anti-dumping duty applicable to all the companies in the Republic of Korea that are not exempted.

               (82)

               Other exporters concerned which were not contacted by the Commission in the framework of this proceeding and which intend to lodge a request for an exemption from the extended anti-dumping duty pursuant to Article 13(4) of the basic Regulation will be required to complete a questionnaire in order to enable the Commission to determine whether an exemption may be warranted. The Commission would normally also carry out an on-spot verification visit. The request would have to be addressed to the Commission with all relevant information.

               (83)

               Where an exemption is warranted, the Commission will, after consultation of the Advisory Committee, propose the amendment of this Regulation accordingly. Subsequently, any exemption granted will be monitored to ensure compliance with the conditions set therein.

         6.   DISCLOSURE

               (84)

               All interested parties were informed of the essential facts and considerations leading to the above conclusions and were invited to comment. The oral and written comments submitted by the parties were considered. None of the arguments presented gave rise to a modification of the definitive findings,

         HAS ADOPTED THIS REGULATION:
   Article 1
   1.   The definitive anti-dumping duty imposed by Regulation (EC) No 1858/2005 on imports of steel ropes and cables including locked coil ropes, excluding ropes and cables of stainless steel, with a maximum cross-sectional dimension exceeding 3 mm, originating in the People’s Republic of China, is hereby extended to imports of steel ropes and cables including locked coil ropes, excluding ropes and cables of stainless steel, with a maximum cross-sectional dimension exceeding 3 mm, consigned from the Republic of Korea, whether declared as originating in the Republic of Korea or not, currently falling within CN codes ex 7312 10 81, ex 7312 10 83, ex 7312 10 85, ex 7312 10 89 and ex 7312 10 98 (TARIC codes 7312108113, 7312108313, 7312108513, 7312108913 and 7312109813), with the exception of those produced by the companies listed below:

               Country

               Company

               TARIC additional code

               The Republic of Korea

               Bosung Wire Rope Co., Ltd, 972-5, Songhyun-Ri, Jinrae-Myeun, Kimhae-Si, Gyeungsangnam-Do

               A969

               Chung Woo Rope Co., Ltd 1682-4, Songjung-Dong, Gangseo-Gu, Busan

               A969

               CS Co., Ltd, 287-6 Soju-Dong Yangsan-City, Kyoungnam

               A969

               Cosmo Wire Ltd, 447-1, Koyeon-Ri, Woong Chon-Myon Ulju-Kun, Ulsan

               A969

               Dae Heung Industrial Co., Ltd, 185 Pyunglim – Ri, Daesan-Myun, Haman – Gun, Gyungnam

               A969

               DSR Wire Corp., 291, Seonpyong-Ri, Seo-Myon, Suncheon-City, Jeonnam

               A969

               Kiswire Ltd, 20t h Fl. Jangkyo Bldg., 1, Jangkyo-Dong, Chung-Ku, Seoul

               A969

               Manho Rope & Wire Ltd, Dongho Bldg, 85-2, 4 Street Joongang-Dong, Jong-gu, Busan

               A969

               Shin Han Rope Co., Ltd, 715-8, Gojan-dong, Namdong-gu, Incheon

               A969

               Ssang Yong Cable Mfg. Co., Ltd, 1559-4 Song-Jeong Dong, Gang-Seo Gu, Busan

               A969

               Young Heung Iron & Steel Co., Ltd, 71-1 Sin-Chon Dong, Changwon City, Gyungnam

               A969

         2.   The application of exemptions granted to the companies specifically mentioned in paragraph 1 or authorised by the Commission in accordance with Article 3(2) shall be conditional upon presentation to the customs authorities of the Member States of a valid commercial invoice, which shall conform to the requirements set out in the Annex. If no such invoice is presented, the anti-dumping duty as imposed by paragraph 1 shall apply.
   3.   The duty extended by paragraph 1 of this Article shall be collected on imports consigned from the Republic of Korea, whether declared as originating in the Republic of Korea or not, registered in accordance with Article 2 of Regulation (EC) No 734/2009 and Articles 13(3) and 14(5) of Regulation (EC) No 1225/2009, with the exception of those produced by the companies listed in paragraph 1.
   4.   The provisions in force concerning customs duties shall apply.
   Article 2
   The investigation initiated by Regulation (EC) No 734/2009 concerning the possible circumvention of anti-dumping measures imposed by Regulation (EC) No 1858/2005 on imports of steel ropes and cables, originating in the People’s Republic of China by imports of steel ropes and cables consigned from Malaysia, whether declared as originating in Malaysia or not, and making such imports subject to registration, is hereby terminated.
   Article 3
   1.   Requests for exemption from the duty extended by Article 1 shall be made in writing in one of the official languages of the European Union and must be signed by a person authorised to represent the entity requesting the exemption. The request must be sent to the following address:

               European Commission

               Directorate-General for Trade

               Directorate H

               Office: N-105 04/92

               1049 Brussels

               BELGIUM

               Fax +32 22956505

         2.   In accordance with Article 13(4) of Regulation (EC) No 1225/2009, the Commission, after consulting the Advisory Committee, may authorise, by decision, the exemption of imports from companies which do not circumvent the anti-dumping measures imposed by Regulation (EC) No 1858/2005, from the duty extended by Article 1.
   Article 4
   Customs authorities are hereby directed to discontinue the registration of imports, established in accordance with Article 2 of Regulation (EC) No 734/2009.
   Article 5
   This Regulation shall enter into force on the day following 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 Luxembourg, 26 April 2010.

            For the Council

            The President

         C. ASHTON

      (1)  OJ L 343, 22.12.2009, p. 51.

      (2)  OJ L 217, 17.8.1999, p. 1.

      (3)  OJ L 328, 30.10.2004, p. 1.

      (4)  OJ L 120, 24.4.2004, p. 1.

      (5)  OJ L 299, 16.11.2005, p. 1.

      (6)  OJ L 208, 12.8.2009, p. 7.

      ANNEX
      A declaration signed by an official of the entity issuing the commercial invoice, in the following format, must appear on the valid commercial invoice referred to in Article 1(2):

                  1.

                  The name and function of the official of the entity issuing the commercial invoice.

                  2.

                  The following declaration: ‘I, the undersigned, certify that the (volume) 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.’

                  3.

                  Date and signature.