(1)

Following an expiry review, by Regulation (EC) No 769/2002 (2) (the original Regulation), the Council imposed a definitive anti-dumping duty of EUR 3 479 per tonne on imports of coumarin, falling within CN code ex 2932 21 00 originating in the People's Republic of China (PRC).

(2)

In December 2004, after circumvention practices via India and Thailand were found, the measures were extended by Regulation (EC) No 2272/2004 (3) to imports of coumarin consigned from India or Thailand, whether declared as originating in India or Thailand or not.

(3)

On 13 February 2006, the Commission received a request pursuant to Article 13(3) of the basic Regulation to investigate the alleged circumvention of the anti-dumping measures imposed on imports of coumarin originating in the PRC (the request). The request was submitted by the European Chemical Industry Council (CEFIC) (the applicant) on behalf of the sole producer in the Community.

(4)

The request contained sufficient prima facie evidence that there had been a change in the pattern of trade following the imposition of the existing anti-dumping measures and anti-circumvention measures on imports of coumarin originating in the PRC, as shown by a significant increase in imports of the same product from Indonesia and Malaysia.

(5)

This change in the pattern of trade was alleged to stem from the transhipment of coumarin originating in the PRC via Indonesia and Malaysia. It was further alleged that there was insufficient due cause or economic justification for these practices other than the existence of the anti-dumping measures on imports of coumarin originating in the PRC.

(6)

Finally, the applicant submitted evidence that the remedial effects of the existing anti-dumping measures on coumarin originating in the PRC were being undermined both in terms of quantities and prices. Significant volumes of imports of coumarin from Indonesia and Malaysia appeared to have replaced imports of coumarin from the PRC. In addition, there was sufficient evidence that the increase in imports was made at prices well below the non-injurious price established in the investigation that led to the existing measures, and that dumping was taking place in relation to the normal values previously established for coumarin originating in the PRC.

(7)

The Commission initiated an investigation by Regulation (EC) No 499/2006 (4) (the initiating Regulation) into the alleged circumvention of the anti-dumping measures imposed on imports of coumarin originating in the PRC by imports of coumarin consigned from Indonesia or Malaysia, whether declared as originating in Indonesia or Malaysia or not and, pursuant to Articles 13(3) and 14(5) of the basic Regulation, directed the customs authorities to register imports of coumarin consigned from Indonesia or Malaysia, whether declared as originating in Indonesia or Malaysia or not, falling within CN code ex 2932 21 00 (TARIC code 2932210016).

(8)

The Commission officially advised the authorities of the PRC, Indonesia and Malaysia, the producers/exporters, the importers in the Community known to be concerned and the applicant of the initiation of the investigation. Questionnaires were sent to the producers/exporters in the PRC as well as to the importers in the Community named in the request. There were no known producers in Indonesia and Malaysia. 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. All parties were informed that non-cooperation might lead to the application of Article 18 of the basic Regulation and findings being made on the basis of the facts available.

(9)

No producer or exporter in the PRC, Indonesia or Malaysia submitted a reply to the questionnaire. Indonesian authorities replied that there was no producer of coumarin known in Indonesia.

(10)

The investigation period covered the period from 1 March 2005 to 28 February 2006 (IP). Data from 2002 up to the end of the investigation period were collected to investigate the alleged change in the pattern of trade.

(11)

No producers or exporters of coumarin in Indonesia and Malaysia made themselves known or cooperated in the investigation. Accordingly, findings in respect of the exports of coumarin consigned from Indonesia and Malaysia to the Community had to be made on the basis of the facts available in accordance with Article 18 of the basic Regulation. At the outset of the investigation, the authorities of Indonesia and Malaysia had been informed of the consequences of non-cooperation, as set out in Article 18(6) of the basic Regulation.

(12)

No Chinese producers or exporters cooperated in the investigation.

(13)

It was made clear to the known companies that non-cooperation may lead to the application of Article 18 of the basic Regulation.

(14)

The product concerned by the alleged circumvention is, as defined in the original Regulation, coumarin currently classifiable within CN code ex 2932 21 00. Coumarin is a whitish crystalline powder with the characteristic odour of newly mown hay. Its main uses are as an aroma chemical and as a fixative in the preparation of fragrance compounds, such compounds being used in the production of detergents, cosmetics and fine fragrances.

(15)

Coumarin can be manufactured following two different production processes: the Phenol route which involves Perkin reaction and the o-Cresol route which involves Rasching reaction. However, coumarin produced through these two processes has the same basic physical and chemical characteristics and has the same uses.

(16)

In the absence of cooperation by parties in Indonesia or Malaysia, it must be inferred, on the basis of the information available and in the absence of any contrary evidence, that coumarin exported to the Community from the PRC and coumarin consigned from Indonesia and Malaysia have the same basic physical and chemical characteristics and have the same uses. They are therefore to be considered as like products within the meaning of Article 1(4) of the basic Regulation.

(17)

As stated above, the change in the pattern of the trade was alleged to stem from transhipment via Indonesia and Malaysia.

(18)

As no Indonesian company cooperated in the investigation, exports from Indonesia to the Community had to be established on the basis of the facts available pursuant to Article 18 of the basic Regulation. Eurostat data, the most appropriate information available, were therefore used to establish the export prices and quantities of imports from Indonesia.

(19)

Significant imports from Indonesia into the Community started immediately after the initiation of the previous anti-circumvention investigation against India and Thailand, at the level of 12,5 tonnes in 2004, 15 tonnes in 2005 and 10 tonnes in the investigation period (representing 1,7 % of the EU consumption). In parallel, Chinese exports into Indonesia have developed from 57 tonnes in 2003 to 83,8 tonnes in the investigation period.

(20)

In the absence of cooperation and of any contrary evidence, it is concluded that there was a change in the pattern of trade between the PRC, Indonesia and the Community from 2004 to the end of the investigation period, which stemmed from transhipment of coumarin originating in the PRC via Indonesia.

(21)

As no Malaysian company cooperated in the investigation, exports from Malaysia to the Community had to be established on the basis of the facts available pursuant to Article 18 of the basic Regulation. Eurostat data, the most appropriate information available, were therefore used to establish the export prices and quantities of imports from Malaysia.

(22)

Imports from Malaysia into the Community started in 2005, reaching a level of 13 tonnes in 2005 and 23 tonnes in the investigation period (representing 3,9 % of the EU consumption). At the same time, the Chinese exports into Malaysia have grown from 23,6 tonnes in 2004 to 43,76 tonnes in the investigation period.

(23)

In the absence of cooperation and of any contrary evidence, it is concluded that there was a change in the pattern of trade between the PRC, Malaysia and the Community from 2005 to the end of the investigation period, which stemmed from transhipment of coumarin originating in the PRC via Malaysia.

(24)

In the absence of cooperation and of any contrary evidence, it is concluded that, given that significant imports started immediately after the initiation of the previous anti-circumvention investigation against India and Thailand, in parallel with an increase of Chinese exports of coumarin to Indonesia, the change in the pattern of trade stemmed from the existence of the anti-dumping measures rather than from any other sufficient due cause or economic justification within the meaning of Article 13(1) of the basic Regulation. In this respect, it is also noted that there is no evidence of genuine production of coumarin in Indonesia.

(25)

In the absence of cooperation and of any contrary evidence, it is concluded that, given that the imports started in 2005, after the extension of the measures on imports of coumarin consigned from India or Thailand and that, in parallel, the Chinese exports into Malaysia have grown from 23,6 tonnes in 2004 to 43,76 tonnes in 2005, the change in the pattern of trade stemmed from the existence of the anti-dumping measures rather than from any other sufficient due cause or economic justification within the meaning of Article 13(1) of the basic Regulation. In this respect, it is also noted that there is no evidence of genuine production of coumarin in Malaysia.

(26)

Based on the trade flow analysis made above, it was found that a change in the pattern of the Community imports is linked to the fact that there were anti-dumping and anti-circumvention measures in place. While imports declared as originating in Indonesia were absent on the Community market until 2003, they amounted to 4 tonnes in 2003, to 12,5 tonnes in 2004, to 15 tonnes in 2005 and to 10 tonnes in the investigation period, representing 1,7 % of Community consumption.

(27)

The investigation revealed that the imports from Indonesia have taken place at price levels below the export price in the original investigation and well below the original normal value.

(28)

On the basis of the above, it is concluded that the change in trade flows, together with the abnormally low prices of exports from Indonesia have undermined the remedial effects of the anti-dumping measures both in terms of quantities and prices of the like products.

(29)

Based on the trade flow analysis made above, it was found that a change in the pattern of trade is linked to the fact that there were anti-dumping and anti-circumvention measures in place. While there were no imports of coumarin into the Community before 2005, they amounted to 13 tonnes in 2005 and to 23 tonnes in the investigation period.

(30)

The investigation revealed that the imports from Malaysia have taken place at price levels below the export price in the original investigation and well below the original normal value.

(31)

On the basis of the above, it is concluded that the change in trade flows, together with the abnormally low prices of exports from Malaysia have undermined the remedial effects of the anti-dumping measures both in terms of quantities and prices of the like products.

(32)

In order to determine whether evidence of dumping could be found with respect to the exports of coumarin from Indonesia to the Community during the IP, Eurostat data were used pursuant to Article 18 of the basic Regulation.

(33)

Article 13(1) of the basic Regulation requires evidence of dumping in relation to the normal value previously established for the like or similar products.

(34)

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. These adjustments were made in accordance with Article 2(10) of the basic Regulation in respect of transport and insurance, on the basis of the facts available, i.e. as given in the request, in accordance with Article 18 of the basic Regulation.

(35)

In accordance with Articles 2(11) and 2(12) of the basic Regulation, the comparison of the weighted average normal value as established in the previous investigation and the weighted average of export prices during this investigation's IP, expressed as a percentage of the cif price at the Community frontier, duty unpaid, showed dumping for the imports of coumarin to the Community from Indonesia. The dumping margin found, expressed as a percentage of the cif price at the Community frontier, duty unpaid, was above 100 %.

(36)

In order to determine whether evidence of dumping could be found with respect to the exports of coumarin from Malaysia to the Community during the IP, Eurostat data were used pursuant to Article 18 of the basic Regulation.

(37)

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. These adjustments were made in accordance with Article 2(10) of the basic Regulation in respect of transport and insurance, on the basis of the facts available, i.e. as given in the request, in accordance with Article 18 of the basic Regulation.

(38)

In accordance with Articles 2(11) and 2(12) of the basic Regulation, the comparison of the weighted average normal value as established in the previous investigation and the weighted average of export prices during this investigation's IP, expressed as a percentage of the cif price at the Community frontier, duty unpaid, showed dumping for the imports of coumarin to the Community from Malaysia. The dumping margin found, expressed as a percentage of the cif price at the Community frontier, duty unpaid, was above 100 %.

(39)

In view of the above findings of circumvention within the meaning of Article 13(1) of the basic Regulation, the existing anti-dumping measures on imports of the product concerned originating in the PRC should be extended to the same product consigned from Indonesia or Malaysia, whether declared as originating in Indonesia or Malaysia or not.

(40)

The duty extended should be the one established in Article 1(2) of the original Regulation.

(41)

Pursuant to Articles 13(3) and 14(5) of the basic Regulation, which provide that any extended measures shall be applied against registered imports from the date of registration, the anti-dumping duty should be collected on imports of coumarin consigned from Indonesia or Malaysia, which entered the Community under registration imposed by the initiating Regulation.

(42)

Although during this investigation no genuine producer of coumarin was found to exist in Indonesia or Malaysia or made itself known to the Commission, new producers which would consider lodging a request for an exemption from the extended anti-dumping measure pursuant to Article 13(4) of the basic Regulation are informed that they will be required to complete a questionnaire in order to enable the Commission to determine whether an exemption may be warranted. Such exemption may be granted after the assessment of, for instance, the market situation of the product concerned, production capacity and capacity utilisation, procurement and sales and the likelihood of continuation of practices for which there is insufficient due cause or economic justification and the evidence of dumping. The Commission would normally also carry out an on the spot verification visit. The request would have to be addressed to the Commission forthwith, with all relevant information, in particular any modification in the company's activities linked to production and sales.

(43)

Importers could still benefit from exemption from the measures to the extent that their imports are from exporting producers, which are granted such an exemption, and in accordance with Article 13(4) of the basic Regulation.

(44)

Where an exemption is warranted, the Council will amend this Regulation accordingly. Subsequently, any exemption granted will be monitored by the Commission to ensure compliance with the conditions set therein.

(45)

Interested parties were informed of the essential facts and considerations on the basis of which the Council intended to extend the definitive anti-dumping measures in force and were given the opportunity to comment and to be heard. No comments which were of a nature to change the above mentioned conclusions were received,

(1)

The measures currently in force are definitive anti-dumping duties imposed on imports of bicycles originating, inter alia, in the People's Republic of China (PRC) by Council Regulation (EC) No 1524/2000 (2) (the original regulation).

(2)

On 10 January 2006, the Commission initiated by a notice published in the Official Journal of the European Union (3), on its own initiative, an investigation pursuant to Article 11(3) of the basic Regulation. The interim review is limited in scope to dumping aspects as far as one exporting producer of bicycles, Giant China Co. Ltd. (Giant China or the company) is concerned.

(3)

There was sufficient prima facie evidence available to the Commission that the circumstances on the basis of which the existing measures were established have changed and that these changes were of a lasting nature. The information at the Commission's disposal indicated that market economy conditions prevail for the company as demonstrated by the fact that it appeared to fulfil the criteria set out in Article 2(7)(c) of the basic Regulation.

(4)

The partial interim review was therefore initiated with a view to determine whether the company operates under market economy conditions as defined in Article 2(7)(c) of the basic Regulation or alternatively whether the company fulfils the requirements to have an individual duty established in accordance with Article 9(5) of the basic Regulation and, if so, to determine the company's individual margin of dumping and, should dumping be found, the level of the duty to which its imports of the product concerned into the Community should be subject.

(5)

The Commission officially advised Giant China, the Community industry and the authorities of the PRC of the initiation of the investigation. Interested parties were given the opportunity to make their views known in writing and to request a hearing within the time limit set out in the notice of initiation.

(6)

In order to allow the company to submit a claim for market economy treatment (MET) or individual treatment (IT), the Commission sent claim forms to the company and to the authorities of the PRC. Subsequently, claims for MET were received from Giant China and its related company.

(7)

A verification visit was carried out at the premises of Giant China and its related company Giant Chengdu Co. Ltd.

(8)

The product concerned is, as defined in Article 1 of the original regulation, bicycles and other cycles (including delivery tricycles, but excluding unicycles), not motorised originating in the PRC (the product concerned), currently classifiable within CN codes ex 8712 00 10, 8712 00 30 and ex 8712 00 80.

(9)

The investigation covered the period from 1 January 2005 to 31 December 2005.

(10)

It was found during the investigation that the company was related to another manufacturer of the product concerned in the PRC, which did, however, not submit a reply to the MET claim form within the deadline set in the notice of initiation.

(11)

It has to be noted that it is the Commission's consistent practice to examine whether a group of related companies, as a whole, fulfils the conditions for MET. This is deemed to be necessary to avoid that sales of a group of companies are channelled via one of the related companies in the group, should measures be imposed. Therefore, in cases where a subsidiary or any other related company is a producer and/or a seller of the product concerned, all such related companies have to provide a reply to the MET claim form in order that an examination can be made as to whether they also meet the criteria set out in Article 2(7)(c) of the basic Regulation. Consequently, failure in that respect leads to the result that it cannot be established that the group, as a whole, fulfils all the conditions for MET.

(12)

Furthermore, no determination as to whether the company fulfilled the requirements of Article 9(5) of the basic Regulation could be made as the facts available did not allow for such a determination.

(13)

The company was informed by the Commission of the above conclusions. It declared its intention to no longer cooperate in this review proceeding.

(14)

In light of the above, it is concluded that the partial interim review concerning imports into the Community of the product concerned produced by Giant China should be terminated and the measures as described in recital 1 should be maintained,

(1)

The measures currently in force on imports into the Community of polyester staple fibres (‘PSF’) originating in the People's Republic of China (‘PRC’) are definitive anti-dumping duties imposed by Council Regulation (EC) No 428/2005 (2).

(2)

After the imposition of definitive anti-dumping duties on imports of PSF originating in the PRC, the Commission received a request to initiate a ‘new exporter’ review of Regulation (EC) No 428/2005, pursuant to Article 11(4) of the basic Regulation, from the Chinese company Huvis Sichuan (the applicant).

(3)

The applicant claimed that it had not exported the product concerned to the Community during the period of investigation on which the anti-dumping measures were based, i.e. the period from 1 January to 31 December 2003 (the original investigation period) and that it was not related to any of the exporting producers of PSF in the PRC subject to the anti-dumping measures in force. Furthermore, it claimed that it had started to export PSF to the Community after the end of the original investigation period.

(4)

The Commission examined the prima facie evidence submitted by the applicant and considered it sufficient to justify the initiation of a review in accordance with Article 11(4) of the basic Regulation. After consultation of the Advisory Committee and after the Community industry concerned had been given the opportunity to comment, the Commission initiated, by Regulation (EC) No 342/2006 (3), a review of Regulation (EC) No 428/2005 with regard to the applicant and commenced its investigation.

(5)

Pursuant to Article 2 of Regulation (EC) No 342/2006, an anti-dumping duty of 49,7 % imposed by Regulation (EC) No 428/2005 on imports of PSF produced, inter alia, by the applicant was repealed. Simultaneously, pursuant to Article 14(5) of the basic Regulation, customs authorities were directed to take appropriate steps to register the imports of PSF produced by the applicant.

(6)

The product concerned by the current review is the same as that in the investigation that led to the imposition of the measures in force on imports of PSF originating in, inter alia, the PRC (original investigation), i.e. synthetic staple fibres of polyesters, not carded, combed or otherwise processed for spinning originating in the People’s Republic of China, currently classifiable within CN code 5503 20 00.

(7)

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

(8)

The Commission services also sent a market economy treatment (MET) claim form and a questionnaire to the applicant and received the replies within the deadlines set for that purpose.

(9)

The investigation of dumping covered the period from 1 October 2004 to 31 December 2005 (the investigation period or IP).

(10)

The investigation revealed that the applicant started its production operations in October 2004, i.e. after the original investigation period and did not export the product concerned during that period. It was therefore concluded that the applicant fulfilled the requirement of the first sentence of Article 11(4) of the basic Regulation.

(11)

However, it was also found that the applicant was related to a partly State-owned Chinese producer which was producing the product concerned during the original investigation period, but which did not cooperate at that time. Considering that the related Chinese producer was subject to the definitive anti-dumping duty in force, it was found that the criterion of the second sentence of Article 11(4) of the basic Regulation, which sets out that a new exporter or producer should show that it is not related to any of the exporters or producers in the exporting country which are subject to the anti-dumping measures on the product, is not fulfilled.

(12)

The applicant argued that the related producer did not export the product concerned to the Community during the original investigation period. In support of this argument, the applicant provided the related producer's audited accounts for the period between 2002 and 2004 which, according to the applicant, contained no indication of any export sales having been made during the original IP.

(13)

The evidence submitted by the applicant did, however, not show that the related producer did indeed not export the product concerned during the original investigation period. In fact, the audited accounts merely indicated that there were no exports of commodity products, without defining the exact meaning of commodity products, i.e. in particular whether the product concerned was considered as a ‘commodity product’. In this regard, it is noted that the related producer is also manufacturing products other than the product concerned. In addition, it should be noted that, apart from submitting its audited accounts, the related producer did not cooperate during the current investigation and that therefore, the information submitted by this company could not be verified. Thus, no evidence was available showing that all sales made to domestic customers, for example traders, during the original IP were indeed destined for the domestic market, and not in reality intended for export to the Community. Consequently, it could not be determined whether or not export sales had taken place during the original IP.

(14)

After disclosure, the applicant claimed that clarifications concerning the audited accounts should have been requested earlier and in any case prior to disclosure. In this regard, it is noted that the Chinese related producer was requested to provide the information, made aware of the deficiency and asked to cooperate in the present proceeding, which it refused to do. Therefore, findings with regard to this company were based on facts available in accordance with Article 18 of the basic Regulation. Under these circumstances, any requests for further information after the deadlines applicable was considered inappropriate and discriminatory with regard to the normal practice of the Community institutions in relation to non-cooperating parties. It is noted that findings were in any case disclosed to the applicant who was given ample opportunity to comment on these findings.

(15)

In any event, the argument that the related producer did or did not export to the Community is irrelevant, because as mentioned above in recital (13) and as outlined in recitals (18) to (31) below, the related producer did not cooperate in this review and, therefore, the Commission could not establish whether the economic group composed of the applicant and the related producer did fulfil the requirements to be considered as operating under market economy conditions.

(16)

Pursuant to Article 2(7)(b) of the basic Regulation, in anti-dumping investigations concerning imports originating in the PRC, normal value shall be determined in accordance with paragraphs 1 to 6 of the said Article for those producers which were found to meet the criteria laid down in Article 2(7)(c) of the basic Regulation, i.e. where it is shown that market economy conditions prevail in respect of the manufacture and sale of the like product. These criteria are set out in a summarised form below:

(17)

The applicant requested MET pursuant to Article 2(7)(b) of the basic Regulation and was invited to complete a MET claim form.

(18)

As mentioned above in recital (11), the investigation revealed that the applicant was related to another producer of the product concerned located in China. Although invited to do so, the related producer did not fill in a separate MET claim form.

(19)

It has to be noted that it is the Commission's consistent practice to examine whether a group of related companies, as a whole, fulfils the conditions for MET. This is deemed to be necessary to avoid that sales of a group of companies are channelled via one of the related companies in the group, should measures be imposed. Therefore, in cases where a subsidiary or any other related company is a producer and/or a seller of the product concerned, all such related companies have to provide a MET claim form in order that an examination can be made as to whether they also meet the criteria in Article 2(7)(c) of the basic Regulation. Consequently, failure in that respect leads to the result that it cannot be established that the group, as a whole, fulfils all the conditions for MET.

(20)

The Commission informed the applicant forthwith that in the absence of a reply by the related producer, it could not examine whether that company operates under market economy conditions.

(21)

The applicant argued that both companies are competitors on the domestic market and are not on ‘good terms’. In addition, it was argued that the related company refused to submit any confidential information for the purpose of this investigation, which it feared would result in improving the market position of its competitor, i.e. the applicant.

(22)

It is noted that in accordance with Article 19 of the basic Regulation, the related producer could have requested confidential treatment of information required to be submitted to allay any concerns about disclosure of confidential business data to competitors. However, it chose not to submit the required information without having made any request for confidential treatment. Therefore, the applicant's argument had to be rejected.

(23)

The applicant also argued that its business decisions cannot be influenced by the related producer. Besides the fact that this argument has not been substantiated by any evidence, it is also irrelevant since, as explained above, MET treatment should in any event be refused to the applicant if its related company does not complete the MET form and fulfils the MET conditions. Furthermore, even if the substance of the claim were to be examined, it is noted that the facts available in the present case indicated, in contrast to the applicant's claim, that the related producer, having one member on the board of directors of the applicant, had an influence in the decision making of the applicant. Indeed, the related producer can block company decisions concerning amendments to the articles of association, dissolution of the joint venture, changes of registered capital or merger or split of the company with other organizations, which require unanimity. Furthermore, the purpose of the joint venture between the applicant and the related producer was, as laid down by chapter 5 of the joint venture agreement, to achieve ‘a competitive position in quality and price for the world market’, to ‘produce and sell polyester staple fibre’ and to ‘import and export products and raw materials in connection with polyester staple fibre’ which indicates that both companies would indeed cooperate and at least adjust their decisions in order to maximise their world market position. The applicant's argument had therefore to be rejected.

(24)

Subsequent to disclosure, the applicant reiterated that the related Chinese producer had only minor or peripheral influence on its business decisions, as its consent is only required for decisions regarding the company's existence as such, i.e. decisions linked to the related Chinese producer investments, while business decisions are made in line with the global strategy of its main shareholder, where the Chinese producer had no influence. Furthermore, the related Chinese producer would not be involved in the company's management.

(25)

The applicant further argued that the decision to reject the applicant's claim for MET on the mere grounds of the non-cooperation of the related Chinese producer would be unjustified because this relationship only constituted a technical requirement without any practical relevance for the applicant. It was also argued that the company was not related to any of the Chinese exporting producers of PSF subject to the anti-dumping measures in force, since the related company did not export to the Community during the original investigation period, and could therefore not have cooperated in the original investigation and request an individual duty.

(26)

As outlined above under recital (23), the possibility that the related Chinese company could exert significant influence on the business operations of the applicant could not be considered as minor or peripheral. On the contrary, such influence relates to crucial aspects as described under the said recital. Likewise, since the related Chinese company did not cooperate in this investigation, it was not possible for the Commission to determine whether this company did not export to the Community during the original investigation period, as claimed. The comments provided by the applicant contained no basis on which the conclusions made under recital (13) could be revised. In any event, the fact that the related company could not have asked for MET or IT during the original investigation does not invalidate the fact that it is subject to the measures in force, i.e. the residual duty.

(27)

Finally, on a more general basis, it was submitted that the main elements on the basis of which it was decided to reject the applicant's request for MET (i.e. the relationship to the Chinese related producer) were already known to the Commission before the investigation was initiated.

(28)

In this regard, it is noted that the main reason to reject the applicant's claim for MET as set out in recitals (13), (23) above and (31) below, was not the existence of the related Chinese producer as such but its non-cooperation and, as a consequence, the impossibility to determine, amongst others, in how far the State had indeed an influence on the applicant's business decisions and whether the related producer did not export during the original IP as claimed.

(29)

The claims of the applicant were therefore rejected.

(30)

In addition, no determination could be made with regard to possible distortions carried over from the former non-market economy system. Indeed, the partly State-owned related producer contributed the land use rights to the applicant's registered capital. In the absence of cooperation from the related producer, it was not possible to conclude that no such distortions existed.

(31)

In view of the above, and in the absence of a duly substantiated MET claim form from the applicant's related producer, the Commission could not conclude whether the group of companies, i.e. the applicant and its related producer, fulfil the MET criteria.

(32)

Further to Article 2(7) of the basic Regulation, a country-wide duty, if any, is established for countries falling under that article, except in those cases where companies are able to demonstrate that they meet all criteria for individual treatment set out in Article 9(5) of the basic Regulation.

(33)

The applicant, as well as requesting MET, also claimed IT in the event of not being granted MET. As described in recital (11), a partly State-owned producer of PSF is related to the applicant. Since the related producer did not cooperate with the present investigation, the Commission services could not conclude whether State interference was such as to permit circumvention. Therefore, it was concluded that IT could not be granted to the applicant.

(34)

The applicant submitted that in the current case, circumvention would not be likely to occur since both companies would be on competitive terms, and therefore the related producer would never intend to channel any of its production through the applicant for export to the Community.

(35)

It should be noted that since both companies are related the behaviour of the related producer is difficult to predict. Furthermore, and as mentioned above in recital (23), the joint venture between the two companies had as an objective to maximise both companies' world market position. The risk of circumvention resulting from one company benefiting from a lower dumping margin than the other company was therefore considered imminent. The applicant did not submit any information which showed that such risk of circumvention could be sufficiently excluded.

(36)

The applicant contested the decision to reject its IT claim, submitting that possible circumvention should be addressed through the initiation of an investigation in accordance with Article 13 of the basic Regulation, and that nothing in Article 2(7)(c) of the basic Regulation places the companies located in China any burden with respect to the demonstration that they would not circumvent any anti-dumping measures.

(37)

In this regard, it is noted that the second paragraph of Article 9(5) of the basic Regulation is clear on the conditions applicable for the establishment of an individual duty when Article 2(7)(a) applies, which is applicable in the present case since it could not be concluded that the applicant fulfilled the criteria of Article 2(7)(c). In particular, Article 9(5)(e) of the basic Regulation sets out that the State interference should not be such as to permit circumvention. As outlined already above in recital (35), in the absence of cooperation from one of the related companies, it was impossible to conclude that the conditions for IT were fulfilled.

(38)

It was therefore concluded that IT should not be granted to the applicant.

(39)

The purpose of the present review was to determine the individual margin of dumping of the applicant, which was allegedly different from the current residual margin applicable to imports of the product concerned from the PRC. The request was mainly based on the allegation that the applicant fulfilled the criteria for MET.

(40)

As the investigation concludes that, in the absence of cooperation from its related producer, the applicant was granted neither MET nor IT, the Commission could not establish that the applicant's individual dumping margin was indeed different from the residual dumping margin established in the original investigation. Therefore, the request made by the applicant should be rejected and the new exporter review terminated. The residual anti-dumping duty found during the original investigation, i.e. 49,7 % should consequently be maintained.

(41)

In the light of the above findings, the anti-dumping duty applicable to the applicant shall be levied retroactively on imports of the product concerned, which have been made subject to registration pursuant to Article 3 of Regulation (EC) No 342/2006.

(42)

All parties concerned were informed of the essential facts and considerations leading to the above conclusions and were invited to comment in accordance with Article 20 of the basic Regulation. Comments of the parties were taken into consideration when appropriate.

(43)

This review does not affect the date on which the measures imposed by Regulation (EC) No 428/2005, as amended by Regulation (EC) No 1333/2005, will expire pursuant to Article 11(2) of the basic Regulation,