(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’.

(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.

(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.

(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:

(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.

(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.

(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.

(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.

(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)

(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

(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

(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.

(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.

(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.

(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.

(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.

(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.

(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.

(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.

(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,