(1)

On 11 October 2007, the Council imposed, by Council Regulation (EC) No 1184/2007 (2), a definitive anti-dumping duty on imports of peroxosulphates originating, inter alia, in the People’s Republic of China (‘the original measures’). Two companies were granted market economy treatment (MET). One received an individual anti-dumping duty rate of 24,5 %. The other company, ABC Chemicals (Shanghai) Co., Ltd. (hereafter referred to as ‘ABC Shanghai’), was found not to be dumping and therefore received an individual anti-dumping duty rate of 0 %. All other companies are subject to an anti-dumping duty rate of 71,8 %. The investigation that led to the original measures will be hereinafter referred to as ‘the original investigation’.

(2)

On 17 December 2013, the Council, following an expiry review, extended the anti-dumping measures against imports from the People’s Republic of China (‘the PRC’) by Council Regulation (EU) No 1343/2013 (‘the extended measures’) (3).

(3)

On 17 December 2018, following the publication of a notice of impending expiry of the measure in force (4), the Commission announced, by a notice published in the Official Journal of the European Union (5) (‘the Notice of Initiation’), the initiation of a second expiry review of the measures pursuant to Article 11(2) of the basic Regulation.

(4)

On 17 January 2020, following its second expiry review, the Commission maintained the original measures by Commission Implementing Regulation (EU) 2020/39 (6). These measures will hereinafter be referred to as ‘the measures currently in force’.

(5)

In the first half of 2019, the Commission analysed available evidence on the patterns and channels of sales of peroxosulphates since the imposition of the original measures. Import statistics showed a change in the pattern of trade following the imposition of the definitive anti-dumping duty on the product concerned. Those statistics also showed that Chinese imports are now mainly entering the Union under the TARIC additional code for products manufactured by ABC Shanghai, and are not subject to anti-dumping duties. However, evidence in the possession of the Commission showed that ABC Shanghai was no longer producing peroxosulphates, so the change in the pattern of trade seemed to be due to channelling of exports. There seemed to be no due cause or economic justification for this channelling of exports other than the existing 0 % duty for ABC Shanghai.

(6)

Furthermore, the Commission had sufficient evidence that the remedial effects of the existing anti-dumping measures on peroxosulphates were being undermined both in terms of quantities and prices.

(7)

Finally, the Commission had sufficient evidence that the prices of exports of peroxosulphates by ABC Shanghai were currently dumped in relation to the normal value previously established.

(8)

The Commission therefore decided, after having informed the Member States, to initiate, on its own initiative, an investigation pursuant to Article 13 of the basic Regulation concerning the possible circumvention of the anti-dumping measures currently in force by the company ABC Shanghai and to make imports of peroxosulphates from ABC Shanghai subject to registration. The initiation of the investigation was announced by the publication of an Implementing Regulation in the Official Journal of the European Union on 26 September 2019 (‘the Initiating Regulation’) (7).

(9)

The Commission informed the authorities of the People’s Republic of China (‘PRC’), the company ABC Shanghai and the Union industry about the initiation of the investigation. Interested parties were given the opportunity to make their views known in writing, as well as to request a hearing.

(10)

In addition, the Commission specifically requested ABC Shanghai to inform the Commission whether it wished to cooperate in the proceeding and fill in a questionnaire. On 8 October 2019, ABC Shanghai confirmed that it would cooperate with the Commission in order to prove that its practice and pattern of sales are economically and legally justified. Consequently, on 9 October 2019, a questionnaire was sent to it.

(11)

On 19 November 2019, the Commission received questionnaire replies from ABC Shanghai and its two related companies, i.e. Siancity Xiamen Co., Ltd (‘Siancity’) and Fujian Hongguan Chemical Corp (‘Hongguan’).

(12)

On 28 January 2020, the Commission informed all interested parties of the essential facts and considerations based on which it intended to make ABC Shanghai subject to the residual duty rate of 71,8 %. All parties were granted a period within which they could make comments on the disclosure.

(13)

On 12 February 2020, ABC Shanghai commented on the Commission’s disclosure. These comments were analysed and taken into account where appropriate. No other interested party submitted comments on the Commission’s disclosure.

(14)

The investigation period covered the period from 1 January 2016 to 30 June 2019 (the ‘IP’). For the IP data were collected to investigate, inter alia, the alleged change in the pattern of trade and the practice, process or work behind it. For the period from 1 July 2018 to 30 June 2019 (the reporting period or ‘the RP’), more detailed data were requested in order to examine the possible undermining of the remedial effects of the measures in force and the existence of dumping.

(15)

The Commission analysed, pursuant to Article 13(1) of the basic Regulation, (i) whether there was a change in the pattern of trade with respect to individual exporting producers in the PRC, (ii) whether 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, (iii) whether there was evidence of injury or that the remedial effects of the duty were being undermined in terms of prices and/or quantities of the product under investigation, and (iv) whether there was evidence of dumping in relation to the normal values previously established for the like product.

(16)

The product concerned is peroxosulphates (persulphates), including potassium peroxymonosulphate sulphate, currently falling under CN codes 2833 40 00 and ex 2842 90 80 (TARIC code 2842908020) and originating in the PRC (‘the product concerned’).

(17)

Peroxosulphates are used as an initiator or as an oxidising agent in a number of processes. Some examples include their use as polymerisation initiator in the production of polymers, as an etching agent in the production of printed circuit boards, or as a bleaching agent in hair cosmetics.

(18)

The product under investigation during this proceeding is the same as that defined in recital (16), currently falling under the same codes as the product concerned and imported under the TARIC additional code A820 (‘the product under investigation’).

(19)

On 14 June 2019, the German customs authorities informed the Commission that the invoices of Siancity, a trader related to ABC Shanghai, systematically included a declaration certifying that that the imported peroxosulphates had been produced by the company ABC Shanghai, and therefore the consignments were cleared for free circulation in Germany under the TARIC additional code A820. (8)

(20)

On 2 September 2019, the French customs authorities informed the Commission that they had received an invoice dated 3 June 2019 from Siancity, including a declaration certifying that the imported peroxosulphates had been produced by the company ABC Shanghai.

(21)

As mentioned in recital (11), on 19 November 2019, the Commission received questionnaire replies from ABC Shanghai and its two related companies, i.e. Siancity and Hongguan (hereafter ‘ABC Group’ and/or ‘ABC Shanghai and its related companies’). The ABC Group also submitted, on the same day, a more detailed explanatory note, with some detailed preliminary comments on the initiation of this anti-circumvention proceeding.

(22)

The main elements of the statements in these documents can be summarised as follows:

(23)

ABC Shanghai was the legal entity specifically identified as an exporting producer in all regulations imposing anti-dumping duties on peroxosulphates originating in the PRC. It is subject to an anti-dumping duty rate of 0 %, applicable to imports under company-specific TARIC additional code A820 (11).

(24)

Furthermore, the original investigation as well as the two expiry review Regulations, referred to in recitals (1), (2) and (4) provided that the application of any individual duty rate – including the 0 % duty rate of ABC Shanghai – would be conditional upon the presentation of a valid commercial invoice, bearing a declaration that the product concerned was manufactured by (company name and address) (TARIC additional code).

(25)

Following the initiation of the present anti-circumvention investigation, ABC Shanghai informed the Commission, for the first time, on 19 November 2019, that it did not itself manufacture anymore the product under investigation since it ceased its production at the end of 2017. Nevertheless, as mentioned below in recital (39) and on the basis of the statements referred to in recital (40) below, ABC Shanghai still exported at least more than 85 % of the total Chinese import volumes of the product under investigation in 2018 and the RP respectively.

(26)

Moreover, as part of its questionnaire reply, Siancity submitted on 19 November 2019 three invoices issued in 2018 to Union importers. These three invoices bear a declaration that the legal entity ABC Shanghai with the TARIC additional code A820, subject to 0 % duty rate, was the manufacturer of the product under investigation covered by the invoice, i.e. peroxosulphates.

(27)

The declarations on these three invoices, which led to the application of the 0 % anti-dumping duty rate, were incorrect. As mentioned in recital (22), ABC Shanghai ‘officially’ ceased its production at the end of 2017. It was, therefore, not the manufacturer of the peroxosulphates covered by the three invoices. Those imports should have been declared under the TARIC additional code for ‘all other companies’ and should have been subject to an anti-dumping duty rate of 71,8 %, that is, the anti-dumping duty rate applicable to all other companies not specifically having an individual anti-dumping duty rate.

(28)

Based on the above, the Commission concluded that ABC Shanghai and its related companies intentionally concealed the fact that the legal entity ABC Shanghai was not anymore manufacturing the product under investigation as from 2018, as well as the other significant changes in its group structure, to continue to be able to benefit from ABC Shanghai’s individual anti-dumping duty rate of 0 % for imports of product manufactured by its related company Hongguan. That practice constitutes ‘channelling’, as ABC Shanghai’s 0 % individual duty rate is used to ‘channel’ products produced by another company to the Union without paying the otherwise-applicable duty rate on those products.

(29)

ABC Shanghai and its related companies have not put forward any evidence that would demonstrate the existence of any due cause or economic justification for this practice other than the potential to avoid the levying of anti-dumping duties on exports of peroxosulphates produced by Hongguan to the Union.

(30)

Following disclosure, ABC Shanghai repeated that ‘such change was exclusively propelled and driven by environment requirements, which compelled ABC Shanghai to relocate its entire production facilities outside Shanghai to a different place’. Its decision to relocate was thus necessary for continuing commercial operations and not as a means to circumvent the duty. It also observed that ABC Shanghai is a company run by a private person who had no knowledge of anti-dumping law, circumvention or any reporting obligation to the Commission.

(31)

The Commission rejected these arguments.

(32)

First, the change in 2018 cannot be qualified as a mere relocation. ABC Shanghai was the legal entity specifically identified as an exporting producer in the regulation imposing anti-dumping duties on peroxosulphates originating in the PRC. In 2017, one of the shareholders of ABC Shanghai bought shares of an existing company (Hongguan), already producing the product concerned. From early 2018 onwards, ABC Shanghai’s production equipment had been moved to this different legal entity (Hongguan). Therefore, Hongguan became the manufacturer of the product under investigation and ABC Shanghai the trader.

(33)

Second, ABC Shanghai had received Market Economy Treatment (‘MET’). Granting such treatment depended largely on the economic situation of the production plant at the legal entity in Shanghai. It can neither be assumed, nor has it been demonstrated, that the same conditions exist at the factory of Hongguan in the Fujian province. Therefore, Hongguan could not be treated as having taken over ABC Shanghai’s duty rate, which was based on an MET finding.

(34)

Third, the application of its individual duty rate was conditional upon the presentation of a valid commercial invoice, bearing a declaration that the product concerned was manufactured by the legal entity ABC Shanghai. However, the legal entity ABC Shanghai was still identified as the manufacturer of the product under investigation on the import documentation provided to the customs authorities in the EU despite the fact that it was not the legal entity actually having manufactured the goods from early 2018 onwards. Consequently, the duty rate applicable to goods manufactured by ABC Shanghai was wrongfully applied to imports that had, as a matter of fact, been produced by a different legal entity and should have been subject to a higher duty rate.

(35)

Fourth, with regard to the argument that the private person running the operations of ABC Shanghai did not have any knowledge of anti-dumping law, the Commission recalled that intention is not a legal requirement to establish the existence of circumvention pursuant to Article 13(1) of the basic Regulation. In any case, the repeated declarations from Siancity to the EU customs authorities that ABC Shanghai was the exporting producer seem to indicate an understanding that only ABC Shanghai would profit from the 0 % duty. It will be for the appropriate authority in the EU to investigate whether there has been customs fraud concerning the declarations on the invoices from the ABC Group.

(36)

The Commission therefore maintained its finding that ABC Shanghai and its related companies had not put forward evidence that would demonstrate the existence of any due cause or economic justification for declaring ABC Shanghai as the manufacturer of imports of the product concerned other than avoiding the levying of a higher anti-dumping duty rate on its exports of peroxosulphates to the Union.

(37)

Company-specific data are available in the 14(6) database, set up pursuant to Article 14(6) of the basic Regulation (‘the 14(6) database’). This database gathers, among others, the data reported each month to the Commission by Member States on imports of products subject to anti-dumping measures also including company specific TARIC additional codes. The Commission therefore used data from the 14(6) database to identify the change in the pattern of trade by comparing exporting producers with different level of duties for the purpose this investigation. That data is in line with the non-verified data which were received as part of the questionnaire reply on 19 November 2019 (see recital 11).

(38)

The import volumes of the product under investigation accounted for more than 85 % of the total Chinese import volumes of the product concerned to the Union during the investigation period, including the RP, as reported by the 14(6) database.

(39)

Table 1 below shows the volume of imports of the product concerned in (non-confidential) ranges from the PRC into the Union from 1 January 2016 to the end of the reporting period.

Table 1

Total import volumes from the PRC (in tonnes, ranges) into the Union

(40)

The volume of total imports from the PRC increased systematically during the years 2016 until 2018. Moreover, despite a small decrease of import volumes during the RP compared to the year 2018, those values are still significantly higher than the ones during the years 2016 and 2017. As mentioned in recital (38), the import volumes of the product under investigation accounted for more than 85 % of the total Chinese import volumes of the product concerned to the Union during the investigation period.

(41)

As explained in sections 2.3.2 and 2.3.3, the exporting producer ABC Shanghai ceased its production at the end of 2017, and became a trader from 2018 onwards. Moreover, its related company Hongguan became the manufacturer of the product under investigation in early 2018.

(42)

Nevertheless, imports to the Union of the product under investigation attributed to the legal entity ABC Shanghai, were still made during 2018 and the RP after it had ceased production. The import volumes during 2018 and the RP under this TARIC additional code (A820) were at higher levels than during the years 2016 and 2017, when ABC Shanghai was still the manufacturer of the imported peroxosulphates into the Union. In parallel, imports under the TARIC additional code for ‘all other producers’ A999 decreased during the investigation period.

(43)

Following disclosure, ABC Shanghai argued that its change of pattern and sales was legitimately justified due to the imposed environment rules, and that it did had no other options than to relocate.

(44)

The Commission rejected this claim. As explained above in recital (32) the events of 2018 cannot be qualified as a simple relocation of the production facilities but constituted a change of the corporate structure after which another legal entity produced the product under investigation. In addition, the original investigation had established a duty rate of 0 % in respect of the legal entity ABC Shanghai, which had been based on market economy treatment for that particular entity only (see recital 33 above). ABC Shanghai should therefore have informed the Commission of this change to allow it to examine the consequences, if any of that change for the application of anti-dumping measures to imports of the product under investigation by the new production company. However, ABC Shanghai chose not to do so.

(45)

Article 13(1) of the basic Regulation 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 reorganisation by exporters or producers of their patterns and channels of sales in the country subject to measures in order to have their products exported to the Union through producers benefiting from an individual duty lower than that applicable to the products of the manufacturers.

(46)

As explained in section 2.3, the Commission found that ABC Shanghai and its related companies engaged in circumvention through channelling. Although Hongguan did not have its own company-specific additional code, it started to export large volumes of the product concerned from 2018 onwards into the Union under ABC Shanghai’s company-specific TARIC additional code.

(47)

The import volumes into the Union under ABC Shanghai’s company-specific TARIC additional code (A820) represent more than 85 % of the total import volumes into the Union during 2018 and the reporting period, as reported by the 14(6) database. However, the legal entity ABC Shanghai was not the producer of those import volumes, but Hongguan was.

(48)

The changes in trade flows to the Union constitute a change in the pattern of trade between the related companies Hongguan (the manufacturer of the product under investigation from 2018 onwards) and ABC Shanghai (the manufacturer of the product under investigation until the end of 2017) in the country subject to measures and the Union, which stems from a practice, process or work for which the investigation did not bring to light any due cause or economic justification other than the avoidance of the residual or the higher duty in force on peroxosulphates originating in the PRC.

(49)

In light of the considerations above, the Commission established that channelling practices of the product under investigation were taking place.

(50)

As explained in recitals 28-29, the investigation did not bring to light any due cause or economic justification for the channelling practices by the parties concerned other than the avoidance of the higher duty in force on Hongguan’s imports of peroxosulphates originating in the PRC.

(51)

In accordance with Article 13(1) of the basic Regulation, the Commission examined whether there was evidence of dumping in relation to the normal value previously established for the product concerned.

(52)

To establish normal value, the Commission decided to use the data from the latest investigation leading to the measures currently in force, namely the ex works normal value per product type established in section 3.1.4 of Implementing Regulation (EU) 2020/39.

(53)

The export price per product type was based on the data provided by Siancity, the related trader within the ABC Group, which was contained in the questionnaire reply received on 19 November 2019. Those export prices were adjusted to bring them to an ex works value.

(54)

The average normal value per product type was then compared with the weighted average export prices per product type during the RP.

(55)

Since these export prices for all product types were below the normal value for these product types, the existence of dumping was confirmed for the product under investigation.

(56)

Finally, the Commission examined, in accordance with Article 13(1) of the basic Regulation, whether the imports of the product under investigation had, in terms of quantities and prices, undermined the remedial effects of the measures currently in force.

(57)

In recital 109 of Implementing Regulation (EU) 2020/39 the Commission established that the Union consumption amounted to between 37 000 and 43 000 tonnes during the expiry review investigation period (covering the period from 1 October 2017 to 30 September 2018), which is the most recent figure on Union consumption the Commission has in its possession. The market share of imports made under the company-specific TARIC additional code A820 during the RP according to the 14(6) database is more than 10 % of the total Union market, which is an important share of the market.

(58)

Regarding prices, an average non-injurious price was not established in the latest investigation leading to the measures currently in force. Therefore, the Commission found it appropriate to use the average cost of production of the Union industry, since such cost is lower than an average non-injurious price. The average cost of production of the Union industry – as established in the latest investigation leading to the measures currently in force – was compared with the weighted average CIF prices of the ABC Group found to be circumventing the measures during this investigation’s RP as reported in the 14(6) database.

(59)

Since the CIF prices were below the average cost of production of the Union industry, the circumventing imports were undermining the remedial effects of the duty in terms of prices.

(60)

The Commission therefore concluded that the channelling practices described above undermined the remedial effects of the measures currently in force both in terms of quantities and prices.

(61)

Given the above, the Commission concluded that the definitive anti-dumping duty imposed on imports of peroxosulphates originating in the PRC has been circumvented by means of channelling practices via ABC Shanghai, which is subject to a 0 % anti-dumping duty.

(62)

Pursuant to the second subparagraph of Article 13(1) of the basic Regulation, the anti-dumping duty on imports of the product concerned originating in the PRC applicable to ‘all other companies’ should therefore be extended to imports of the same product declared to be manufactured by ABC Shanghai (i.e. the product under investigation), as they are actually being produced by Hongguan, which is not subject to any individual duty rate (but, instead, subject to the ‘all other companies’ rate).

(63)

Articles 13(3) and 14(5) of the basic Regulation provide that any extended measures should apply to imports, which entered the Union under registration imposed by the initiating Regulation. Therefore, duties should be collected on the registered imports of peroxosulphates originating in the PRC that were imported into the Union under the TARIC additional code A820 during the period of registration of imports. The amount of anti-dumping duties to be retroactively collected should be the residual duty of 71,8 %.

(64)

The Commission informed all interested parties of the essential facts and considerations leading to the above conclusions and invited them to comment. The oral and written comments submitted by the parties were taken into consideration where appropriate.

(65)

The measures provided for in this Regulation are in accordance with the opinion of the Committee established by Article 15(1) of the basic Regulation.