(1)

By Regulation (EC) No 1425/2006 (2) (‘the original Regulation’), the Council imposed definitive anti-dumping duties on imports into the Union of certain plastic sacks and bags, originating, inter alia, in the People’s Republic of China (‘PRC’). Given the large number of cooperating Chinese exporting producers, a sample of exporting producers was selected and individual duty rates ranging from 4,8 % to 12,8 % were imposed on companies included in the sample, while on other cooperating companies not included in the sample and listed in Annex I to the original Regulation was imposed a duty rate of 8,4 %. A duty rate of 28,8 % (‘residual duty rate’) was imposed on Chinese companies which either did not make themselves known or did not cooperate with the investigation of dumping which covered the period from 1 April 2004 to 31 March 2005 (‘the original investigation’).

(2)

By Regulation (EC) No 189/2009 (3), amending the original Regulation, and in accordance with Article 2 of the original Regulation, three Chinese companies were added to the list of producers from the PRC listed in Annex I.

(3)

Prima facie evidence at the disposal of the Commission indicated that, following the imposition of measures, a change in the pattern of trade involving exports from the PRC to the Union took place for which there was insufficient due cause or justification other than the imposition of the duties in force. This change in the pattern of trade appeared to stem from exports to the Union of the product concerned produced by Chinese exporting producers subject to the residual duty rate through a Chinese exporting producer benefiting from a lower duty rate, namely the company Xiamen Xingxia Polymers Co., Ltd (‘Xiamen’) listed in Annex I to the original Regulation.

(4)

Furthermore, the evidence pointed to the fact that the remedial effects of the existing anti-dumping measures on the product concerned were being undermined in terms of prices. There was sufficient prima facie evidence that the imports of the product concerned were at prices well below the non-injurious price established in the original investigation that led to the existing measures.

(5)

Finally, the Commission had sufficient prima facie evidence at its disposal that the prices of the product concerned are dumped in relation to the normal value previously established.

(6)

Having determined, after consulting the Advisory Committee, that sufficient evidence existed for the initiation of an investigation pursuant to Article 13 of the basic Regulation, the Commission adopted Regulation (EU) No 748/2010 (4) initiating an investigation of the alleged circumvention of the anti-dumping measures (‘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 the product concerned declared as having been manufactured by Xiamen under the specific TARIC additional code A981 attributed to them in order to ensure that, should the investigation result in findings of circumvention, anti-dumping duties of an appropriate amount can be levied retroactively from the date of registration of such imports.

(7)

The Commission officially advised the authorities of the PRC, Xiamen, as well as the companies allegedly having their products exported through Xiamen (‘the other exporting producers’) of the initiation of the investigation and sent questionnaires. 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. Interested parties were also informed that non-cooperation might lead to the application of Article 18 of the basic Regulation and to findings being made on the basis of the facts available.

(8)

No replies were received from the other exporting producers and an incomplete reply was received from Xiamen.

(9)

The investigation period (‘IP’) was the period from 1 January 2009 to 30 June 2010. Data was collected for the period from January 2006 up to the end of the IP to investigate the alleged change in the pattern of trade and the other aspects set out in Article 13 of the basic Regulation.

(10)

Xiamen submitted an incomplete and partial reply to the questionnaire. The Commission services sent a letter to Xiamen, identifying the deficiencies of its questionnaire reply and requesting complete and coherent information, to which Xiamen did not react. In addition, Xiamen refused a proposed verification of the data at its premises.

(11)

Consequently Xiamen was informed that, under these circumstances, the Commission considers the company as non-cooperating, in accordance with Article 18 of the basic Regulation, and that findings would be based on the facts available. Xiamen was also made aware that the result of the investigation might be less favourable than if it had fully cooperated. Xiamen did not react to this letter.

(12)

In view of the above and given that no statistical data were available to determine export volumes and prices at company level during the IP, findings in respect of the alleged circumvention had to be made on the basis of facts available in accordance with Article 18 of the basic Regulation, namely those based on the evidence received from Member States’ customs authorities and on the non-verified partial reply, submitted by Xiamen, to the questionnaire.

(13)

The product concerned is plastic sacks and bags, containing at least 20 % by weight of polyethylene and of sheeting of a thickness not exceeding 100 micrometers (μm), originating in the People’s Republic of China, currently falling within CN codes ex 3923 21 00 , ex 3923 29 10 and ex 3923 29 90 (TARIC codes 3923 21 00 20, 3923 29 10 20, and 3923 29 90 20).

(14)

In accordance with Article 13(1) of the basic Regulation, the assessment of the existence of circumvention was carried out by analysing whether there was a change in the pattern of trade between individual companies in the PRC and the Union, which stems from a practice, process or work for which there is insufficient due cause or economic justification other than the imposition of the duty, and where there is evidence of injury or that the remedial effects of the duty are being undermined in terms of the prices and/or quantities of the product concerned, and where there is evidence of dumping in relation to the normal values previously established for the like product.

(15)

Given that Eurostat data cannot be used to determine export volumes and prices at company level since only aggregated countrywide data are provided and no other statistical data at company level are available, export volumes and prices reported by Xiamen in its partial questionnaire reply were used.

(16)

According to the information received from Xiamen, sales to the Union increased significantly after the imposition of measures in September 2006. For some periods, the exports doubled, compared to the sampling period used in the original investigation and prices reported were below the average EU target price established during the original investigation.

(17)

In addition to the increase in sales volume, it was noted that according to the information submitted in the original investigation for the sampling exercise, Xiamen declared that it had no related companies and no production outside its main factory. In its partial reply to the anti-circumvention questionnaire, Xiamen reported that during the IP it outsourced certain production steps, such as colour printing or bagging, and that sometimes it sells raw materials to the contracting companies.

(18)

The partial questionnaire reply confirmed that the contracting companies mentioned by Xiamen are the other exporters which were, according to the prima facie evidence, allegedly channelling exports to the Union. However, the reply also revealed that it is not a matter of an outsourcing arrangement where the ownership of the raw material and the finished goods stay with the company giving the outsourcing order, but goes beyond for the reasons stated below.

(19)

In all cases of sales reported as ‘partly processed’, payment by the European clients was reported as being made not to Xiamen but to the bank accounts of the two companies allegedly involved in channelling. These sales account for more than 20 % of all EU sales in 2009. Moreover, the list of sales transactions submitted by Xiamen reveals diverse invoicing methodologies which differ in alphanumeric structure and length. With regard to sales reported as ‘partly processed’ via one of the two companies, representing the majority of those sales, it appears that the invoice number includes two letters referring to the company name of the company allegedly channelling. Moreover, the two companies are located around 1 000 km away from Xiamen, which puts into question the economic justification of such an arrangement.

(20)

In addition, it cannot be excluded that more sales than those identified in the detailed list of sales transactions submitted by Xiamen are affected by the alleged channelling as, according to production and capacity statistics also submitted by Xiamen, more than 40 % of its production in 2007, 2008 and 2009 were declared as outsourced.

(21)

It was also noted that sales reported as ‘partly processed’ stopped in October 2009, i.e. after the customs authorities of certain Member States refused to apply the individual anti-dumping duty rate of Xiamen to certain imports apparently produced by the other exporting producers.

(22)

The above leads, therefore, to the conclusion that a change in the pattern of trade has taken place following the imposition of measures on the product concerned for which there is no due cause or economic justification other than the avoidance of the residual anti-dumping duty rate in force.

(23)

The increase of imports declared under the name of Xiamen was significant in terms of quantities. According to its questionnaire reply, Xiamen nearly doubled its sales to the EU in 2007 and 2008, compared to the sales reported during the period of the original investigation, which was mainly due to the involvement of the other exporting producers. The comparison of the average EU target price established during the original investigation and the weighted average export price reported during the IP shows underselling.

(24)

The conclusion is therefore that the practice described above undermines the measures’ remedial effects on injury, both in terms of quantities and prices.

(25)

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.

(26)

The comparison of the weighted average normal value as established during the original investigation (where normal value was established on the basis of an analogue country, Malaysia) and the weighted average export price during the current IP as reported by Xiamen in its partial questionnaire reply shows a dumping margin exceeding the dumping margin established during the original investigation for non-sampled companies.

(27)

Given the above, and in application of Article 18 of the basic Regulation, it was concluded that a change in the pattern of trade has taken place, in accordance with Article 13(1) of the basic Regulation. By virtue of the second sentence of Article 13(1) of the basic Regulation, the residual anti-dumping duty rate on imports of the product concerned originating in the PRC should therefore be extended to imports of the same product declared as having been manufactured by Xiamen. In practical terms, TARIC additional code A999 should be declared for those imports from the entry into force of this Regulation.

(28)

Furthermore, in order to enable a more detailed monitoring, henceforth, of the trade flows concerning the non-sampled companies, a TARIC additional code will be attributed to each non-sampled company listed in Annex I to the original Regulation.

(29)

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

(30)

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

(1)

By Regulation (EC) No 1425/2006, the Council imposed a definitive anti-dumping duty on imports into the Union of certain plastic sacks and bags originating in, inter alia, the People’s Republic of China (‘PRC’). Given the large number of cooperating exporting producers in the investigation that led to the imposition of the anti-dumping duty (‘the original investigation’) in the PRC, a sample of Chinese exporting producers was selected and individual duty rates ranging from 4,8 % to 12,8 % were imposed on the companies included in the sample, while other cooperating companies not included in the sample were attributed a duty rate of 8,4 %. By Regulation (EC) No 249/2008 a duty rate of 4,3 % has been set for a certain company. A duty rate of 28,8 % for the PRC was imposed on companies which either did not make themselves known or did not cooperate with the investigation.

(2)

Article 2 of Regulation (EC) No 1425/2006 stipulates that where any new exporting producer in the PRC provides sufficient evidence to the Commission that:

then Article 1 of that Regulation can be amended by granting the new exporting producer the duty rate applicable to the cooperating companies not included in the sample, i.e. 8,4 %.

(3)

The list of companies granted the weighted average duty rate of 8,4 % for cooperating companies and contained in Regulation (EC) No 1425/2006 was amended by Council Regulations (EC) No 249/2008 (3) and (EC) No 189/2009 (4) and by Council Implementing Regulation (EU) No 474/2011 (5).

(4)

Six Chinese companies have applied to be granted the same treatment as the companies cooperating in the original investigation not included in the sample (‘new exporting producer treatment’).

(5)

An examination has been carried out to determine whether the six applicants fulfil the criteria for being granted new exporting producer treatment as set out in Article 2 of Regulation (EC) No 1425/2006.

(6)

An application form was sent to all six applicants who were asked to supply evidence to demonstrate that they met the three criteria mentioned above.

(7)

One company requesting new exporting producer treatment did not provide the requested information. It was therefore not possible to verify whether it fulfilled the criteria set out in Article 2 of Regulation (EC) No 1425/2006 and its request had to be rejected.

(8)

One company withdrew its application.

(9)

One company neither exported the product concerned to the Union nor entered into an irrevocable contractual obligation to export a significant quantity to the Union after the investigation period. Thus, it did not meet the third criterion and its request was therefore rejected.

(10)

One company was not considered as a new exporting producer since it is related to an exporting producer in the PRC which is subject to the anti-dumping measures imposed by Regulation (EC) No 1425/2006. It thus did not meet the second criterion and its request was therefore rejected.

(11)

One company submitted misleading information concerning its date of establishment. This cast doubts on the reliability of the information provided, including the period of time the product concerned could have been exported to the EU. Its request was therefore rejected.

(12)

The evidence provided by the remaining Chinese exporting producer was considered sufficient to show that it fulfils the criteria set out in Article 2 of Regulation (EC) No 1425/2006. This exporting producer can therefore be granted the duty rate applicable to the cooperating companies not included in the sample (i.e. 8,4 %) and consequently its name can be added to the list of exporting producers in Annex I to Regulation (EC) No 1425/2006.

(13)

The applicants and the Union industry have been informed of the findings of the examination and were given the opportunity to submit their comments.

(14)

All arguments and submissions made by interested parties were analysed and duly taken into account where warranted,

(1)

The European Commission (the Commission) has received a request pursuant to Articles 13(3) and 14(5) of the basic Regulation to investigate the possible circumvention of the anti-dumping measures imposed on imports of certain molybdenum wires originating in the People’s Republic of China and to make imports of certain molybdenum wires consigned from Malaysia and Switzerland, whether declared as originating in Malaysia and Switzerland or not, subject to registration.

(2)

The request was lodged on 4 April 2011 by the European Association of Metals (Eurometaux) on behalf of a Union producer of certain molybdenum wires.

(3)

The product concerned by the possible circumvention is molybdenum wire, containing by weight at least 99,95 % of molybdenum, of which the maximum cross-sectional dimension exceeds 1,35 mm but does not exceed 4,0 mm, originating in the People’s Republic of China, currently falling within CN code ex 8102 96 00 (the product concerned).

(4)

The product under investigation is the same as that defined in the previous recital, but consigned from Malaysia and Switzerland, whether originating in Malaysia and Switzerland or not, currently falling within the same CN code as the product concerned.

(5)

The measures currently in force and possibly being circumvented are anti-dumping measures imposed by Council Implementing Regulation (EU) No 511/2010 (2).

(6)

The request contains sufficient prima facie evidence that the anti-dumping measures on imports of certain molybdenum wires originating in the People’s Republic of China are being circumvented by means of the transhipment via Malaysia and Switzerland.

The evidence submitted is as follows:

The request shows that a significant change in the pattern of trade involving exports from the People’s Republic of China, Malaysia and Switzerland to the Union has taken place following the imposition of measures on the product concerned, and that there is insufficient due cause or justification other than the imposition of the duty for such a change.

This change in the pattern of trade appears to stem from the transhipment of certain molybdenum wires originating in the People’s Republic of China via Malaysia and Switzerland.

Furthermore, the request contains sufficient prima facie evidence that the remedial effects of the existing anti-dumping measures on the product concerned are being undermined in terms of quantity. Significant volumes of imports of the product under investigation appear to have replaced imports of the product concerned. In addition, the Commission is in possession of sufficient evidence that imports of the product under investigation are made at prices well below the non-injurious price established in the investigation that led to the existing measures, adjusted for the decrease in the prices of the raw material costs.

Finally, the request contains sufficient prima facie evidence that the prices of the product under investigation are dumped in relation to the normal value previously established for the product concerned, adjusted for the decrease in the prices of the raw material costs.

Should circumvention practices via Malaysia and Switzerland covered by Article 13 of the basic Regulation, other than transhipment, be identified in the course of the investigation, the investigation may also cover these practices.

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interested parties may make themselves known to the Commission, present their views in writing and submit questionnaire replies or any other information to be taken into account during the investigation,

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producers in Malaysia and Switzerland may request exemption from registration of imports or measures,

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interested parties may make a written request to be heard by the Commission.