18.12.2015   

EN

Official Journal of the European Union

L 332/1

(1)

The challenge posed by cross-border tax avoidance, aggressive tax planning and harmful tax competition has increased considerably and has become a major focus of concern within the Union and at global level. Tax base erosion is considerably reducing national tax revenues, which hinders Member States in applying growth-friendly tax policies. The issuance of advance tax rulings, which facilitate the consistent and transparent application of the law, is common practice, including in the Union. By providing certainty for business, clarification of tax law for taxpayers can encourage investment and compliance with the law and can therefore be conducive to the objective of further developing the single market in the Union on the basis of the principles and freedoms underlying the Treaties. However, rulings concerning tax-driven structures have, in certain cases, led to a low level of taxation of artificially high amounts of income in the country issuing, amending or renewing the advance ruling and left artificially low amounts of income to be taxed in any other countries involved. An increase in transparency is therefore urgently required. The tools and mechanisms established by Council Directive 2011/16/EU (4) need to be enhanced in order to achieve this.

(2)

The European Council, in its conclusions of 18 December 2014, underlined the urgent need to advance efforts in the fight against tax avoidance and aggressive tax planning, both at global and Union levels. Stressing the importance of transparency, the European Council welcomed the Commission's intention to submit a proposal on the automatic exchange of information on tax rulings in the Union.

(3)

Directive 2011/16/EU provides for the mandatory spontaneous exchange of information between Member States in five specific cases and within certain deadlines. The spontaneous exchange of information in cases where the competent authority of one Member State has grounds for supposing that there may be a loss of tax in another Member State already applies to tax rulings that a Member State issues, amends or renews to a specific taxpayer regarding the interpretation or application of tax provisions in the future and that have a cross-border dimension.

(4)

However, the efficient spontaneous exchange of information in respect of advance cross-border rulings and advance pricing arrangements is hindered by several important practical difficulties such as the discretion permitted to the issuing Member State to decide which other Member States should be informed. Therefore the information exchanged should, where appropriate, be accessible to all other Member States.

(5)

The scope of the automatic exchange of advance cross-border rulings and advance pricing arrangements, issued, amended or renewed to a particular person or group of persons upon which that person or group of persons is entitled to rely, should cover any material form (irrespective of their binding or non-binding character and the way they are issued).

(6)

For the purposes of legal certainty, Directive 2011/16/EU should be amended by including an appropriate definition of an advance cross-border ruling and advance pricing arrangement. The scope of these definitions should be sufficiently broad to cover a wide range of situations, including but not limited to the following types of advance cross-border rulings and advance pricing arrangements:

(7)

Taxpayers are entitled to rely on advance cross-border rulings or advance pricing arrangements during, for example, taxation processes or tax audits under the condition that the facts on which the advance cross-border rulings or advance pricing arrangements are based have been accurately presented and that the taxpayers abide by the terms of the advance cross-border rulings or advance pricing arrangements.

(8)

Member States will exchange information irrespective of whether the taxpayer abides by the terms of the advance cross-border ruling or advance pricing arrangement.

(9)

The provision of information should not lead to the disclosure of a commercial, industrial or professional secret or of a commercial process, or disclosure of information which would be contrary to public policy.

(10)

In order to reap the benefits of the mandatory automatic exchange of advance cross-border rulings and advance pricing arrangements, the information should be communicated promptly after they are issued, amended or renewed, and regular intervals for the communication of the information should therefore be established. For the same reasons, it is also appropriate to provide for the mandatory automatic exchange of advance cross-border rulings and advance pricing arrangements that were issued, amended or renewed within a period beginning five years before the date of application of this Directive and which are still valid on 1 January 2014. However, particular persons or groups of persons with a group wide annual net turnover of less than EUR 40 000 000 could be excluded, under certain conditions, from such mandatory automatic exchange.

(11)

For reasons of legal certainty, it is appropriate, under a set of very strict conditions, to exclude from the mandatory automatic exchange bilateral or multilateral advance pricing arrangements with third countries following the framework of existing international treaties with those countries, where the provisions of those treaties do not permit disclosure of the information received under that treaty to a third party country. In these cases however, the information identified in paragraph 6 of Article 8a relating to the requests that lead to issuance of such bilateral or multilateral advance pricing arrangements should be exchanged instead. Therefore, in such cases, the information to be communicated should include the indicator that it is provided on the basis of such a request.

(12)

The mandatory automatic exchange of advance cross-border rulings and advance pricing arrangements should in each case include the communication of a defined set of basic information that would be accessible to all Member States. The Commission should be empowered to adopt practical arrangements necessary to standardise the communication of such information under the procedure laid down in Directive 2011/16/EU (which involves the Committee on Administrative Cooperation for Taxation) for establishing a standard form to be used for the exchange of information. That procedure should also be used in the adoption of further practical arrangements for the implementation of the information exchange, such as the specification of linguistic requirements that would be applicable to the exchange of information using that standard form.

(13)

In developing such a standard form for the mandatory automatic exchange of information, it is appropriate to take account of work performed at the OECD's Forum on Harmful Tax Practices, where a standard form for information exchange is being developed, in the context of the Action Plan on Base Erosion and Profit Shifting. It is also appropriate to work closely with the OECD, in a coordinated manner and not only in the area of the development of such a standard form for mandatory automatic exchange of information. The ultimate aim should be a global level playing field, where the Union should take a leading role by promoting that the scope of information on advance cross-border rulings and advance pricing arrangements to be exchanged automatically should be rather broad.

(14)

Member States should exchange basic information, and a limited set of basic information should also be communicated to the Commission. This should enable the Commission to monitor and evaluate the effective application of the mandatory automatic exchange of information on advance cross-border rulings and advance pricing arrangements at any time. The information received by the Commission should not, however, be used for any other purposes. Such communication would moreover not discharge a Member State from its obligations to notify any State aid to the Commission.

(15)

Feedback by the receiving Member State to the Member State sending the information is a necessary element of the operation of an effective system of automatic information exchange. It is therefore appropriate to underline that Member States' competent authorities should send, once a year, feedback on the automatic exchange of information to the other Member States concerned. In practice, this mandatory feedback should be done by arrangements agreed upon bilaterally.

(16)

Where necessary, following the stage of mandatory automatic exchange of information under this Directive, a Member State should be able to rely on Article 5 of Directive 2011/16/EU as regards the exchange of information on request to obtain additional information, including the full text of advance cross-border rulings or advance pricing arrangements, from the Member State having issued such rulings or arrangements.

(17)

It is appropriate to recall that Article 21(4) of Directive 2011/16/EU regulates the language and translation requirements applicable to requests for cooperation, including requests for notification, and attached documents. That rule should also be applicable in cases where Member States request additional information, following the stage of mandatory automatic exchange of basic information on advance cross-border rulings and advance pricing arrangements.

(18)

Member States should take all reasonable measures necessary to remove any obstacle that might hinder the effective and widest possible mandatory automatic exchange of information on advance cross-border rulings and advance pricing arrangements.

(19)

In order to enhance the efficient use of resources, facilitate the exchange of information and avoid the need for Member States each to make similar developments to their systems to store information, specific provision should be made for the establishment of a central directory, accessible to all Member States and the Commission, to which Member States would upload and store information, instead of exchanging that information by secured email. The practical arrangements necessary for the establishment of such a directory should be adopted by the Commission in accordance with the procedure referred to in Article 26(2) of Directive 2011/16/EU.

(20)

Having regard to the nature and extent of the changes introduced by Council Directive 2014/107/EU (5) and this Directive, the timeframe for the submission of information, statistics and reports provided for under Directive 2011/16/EU should be extended. Such an extension should ensure that the information to be provided can reflect the experience resulting from those changes. The extension should apply both to the statistics and other information to be submitted by Member States before 1 January 2018 and to the report and, if appropriate, the proposal to be submitted by the Commission before 1 January 2019.

(21)

The existing provisions regarding confidentiality should be amended to reflect the extension of mandatory automatic exchange of information to advance cross-border rulings and advance pricing arrangements.

(22)

This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, this Directive seeks to ensure full respect for the right to the protection of personal data and the freedom to conduct a business.

(23)

Since the objective of this Directive, namely the efficient administrative cooperation between Member States under conditions compatible with the proper functioning of the internal market, cannot be sufficiently achieved by the Member States but can rather, by reason of the uniformity and effectiveness required, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

(24)

Directive 2011/16/EU should therefore be amended accordingly,

(1)

Article 3 is amended as follows:

(2)

in Article 8, paragraphs 4 and 5 are deleted.

(3)

The following Articles are inserted:

‘Article 8a

Scope and conditions of mandatory automatic exchange of information on advance cross-border rulings and advance pricing arrangements

1.   The competent authority of a Member State, where an advance cross-border ruling or an advance pricing arrangement was issued, amended or renewed after 31 December 2016 shall, by automatic exchange, communicate information thereon to the competent authorities of all other Member States as well as to the European Commission, with the limitation of cases set out in paragraph 8 of this Article, in accordance with applicable practical arrangements adopted pursuant to Article 21.

2.   The competent authority of a Member State shall, in accordance with applicable practical arrangements adopted pursuant to Article 21, also communicate information to the competent authorities of all other Member States as well as to the European Commission, with the limitation of cases set out in paragraph 8 of this Article, on advance cross-border rulings and advance pricing arrangements issued, amended or renewed within a period beginning five years before 1 January 2017.

If advance cross-border rulings and advance pricing arrangements are issued, amended or renewed between 1 January 2012 and 31 December 2013, such communication shall take place under the condition that they were still valid on 1 January 2014.

If advance cross-border rulings and advance pricing arrangements are issued, amended or renewed between 1 January 2014 and 31 December 2016, such communication shall take place irrespective of whether they are still valid.

Member States may exclude from the communication referred to in this paragraph, information on advance cross-border rulings and advance pricing arrangements issued, amended or renewed before 1 April 2016 to a particular person or a group of persons, excluding those conducting mainly financial or investment activities, with a group-wide annual net turnover, as defined in point (5) of Article 2 of Directive 2013/34/EU of the European Parliament and of the Council (6), of less than EUR 40 000 000 (or the equivalent amount in any other currency) in the fiscal year preceding the date of issuance, amendment or renewal of those cross-border rulings and advance pricing arrangements.

3.   Bilateral or multilateral advance pricing arrangements with third countries shall be excluded from the scope of automatic exchange of information under this Article where the international tax agreement under which the advance pricing arrangement was negotiated does not permit its disclosure to third parties. Such bilateral or multilateral advance pricing arrangements will be exchanged under Article 9, where the international tax agreement under which the advance pricing arrangement was negotiated permits its disclosure, and the competent authority of the third country gives permission for the information to be disclosed.

However, where the bilateral or multilateral advance pricing arrangements would be excluded from the automatic exchange of information under the first sentence of the first subparagraph of this paragraph, the information identified in paragraph 6 of this Article referred to in the request that lead to issuance of such a bilateral or multilateral advance pricing arrangement shall instead be exchanged under paragraphs 1 and 2 of this Article.

4.   Paragraphs 1 and 2 shall not apply in a case where an advance cross-border ruling exclusively concerns and involves the tax affairs of one or more natural persons.

5.   The exchange of information shall take place as follows:

6.   The information to be communicated by a Member State pursuant to paragraphs 1 and 2 of this Article shall include the following:

7.   To facilitate the exchange of information referred to in paragraph 6 of this Article, the Commission shall adopt the practical arrangements necessary for the implementation of this Article, including measures to standardise the communication of the information set out in paragraph 6 of this Article, as part of the procedure for establishing the standard form provided for in Article 20(5).

8.   Information as defined under points (a), (b), (h) and (k) of paragraph 6 of this Article shall not be communicated to the European Commission.

9.   The competent authority of the Member States concerned, identified under paragraph 6(j), shall confirm, if possible by electronic means, the receipt of the information to the competent authority which provided the information without delay and in any event no later than seven working days. This measure shall be applicable until the directory referred to in Article 21(5) becomes operational.

10.   Member States may, in accordance with Article 5, and having regard to Article 21(4), request additional information, including the full text of an advance cross-border ruling or an advance pricing arrangement.

Article 8b

Statistics on automatic exchanges

1.   Before 1 January 2018, Member States shall provide the Commission on an annual basis with statistics on the volume of automatic exchanges under Articles 8 and 8a and, to the extent possible, with information on the administrative and other relevant costs and benefits relating to exchanges that have taken place and any potential changes, for both tax administrations and third parties.

2.   Before 1 January 2019, the Commission shall submit a report that provides an overview and an assessment of the statistics and information received under paragraph 1 of this Article, on issues such as the administrative and other relevant costs and benefits of the automatic exchange of information, as well as practical aspects linked thereto. If appropriate, the Commission shall present a proposal to the Council regarding the categories and the conditions laid down in Article 8(1), including the condition that information concerning residents in other Member States has to be available, or the items referred to in Article 8(3a), or both.

When examining a proposal presented by the Commission, the Council shall assess further strengthening of the efficiency and functioning of the automatic exchange of information and raising the standard thereof, with the aim of providing that:

(6)  Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC (OJ L 182, 29.6.2013, p. 19).’."

(4)

In Article 20, the following paragraph is added:

‘5.   A standard form, including the linguistic arrangements, shall be adopted by the Commission in accordance with the procedure referred to in Article 26(2) before 1 January 2017. The automatic exchange of information on advance cross-border rulings and advance pricing arrangements pursuant to Article 8a shall be carried out using that standard form. This standard form shall not exceed the components for exchange of the information listed in Article 8a(6) and other relating fields linked to these components necessary to achieve the objectives of Article 8a.

The linguistic arrangements referred to in the first subparagraph shall not preclude Member States from communicating the information referred to in Article 8a in any of the official and working languages of the Union. However, those linguistic arrangements may provide that the key elements of such information shall also be sent in another official and working language of the Union.’.

(5)

Article 21 is amended as follows:

(6)

Article 23 is amended as follows:

(7)

The following Article is inserted:

‘Article 23a

Confidentiality of information

1.   Information communicated to the Commission pursuant to this Directive shall be kept confidential by the Commission in accordance with the provisions applicable to Union authorities and may not be used for any purposes other than those required to determine whether and to what extent Member States comply with this Directive.

2.   Information communicated to the Commission by a Member State under Article 23, as well as any report or document produced by the Commission using such information, may be transmitted to other Member States. Such transmitted information shall be covered by the obligation of official secrecy and enjoy the protection extended to similar information under the national law of the Member State which received it.

Reports and documents produced by the Commission, referred to in the first subparagraph, may be used by the Member States only for analytical purposes, and shall not be published or made available to any other person or body without the express agreement of the Commission.’.

(8)

In Article 25, the following paragraph is inserted:

‘1a.   Regulation (EC) No 45/2001 applies to any processing of personal data under this Directive by the Union institutions and bodies. However, for the purpose of the correct application of this Directive, the scope of the obligations and rights provided for in Article 11, Article 12(1), Articles 13 to 17 of Regulation (EC) No 45/2001 is restricted to the extent required in order to safeguard the interests referred to in point (b) of Article 20(1) of that Regulation.’.

18.12.2015   

EN

Official Journal of the European Union

L 332/11

(1)

Regulation (EU) No 509/2014 of the European Parliament and the Council (1) transferred the reference to the Republic of Palau from Annex I to Annex II of Council Regulation (EC) No 539/2001 (2).

(2)

That reference to the Republic of Palau is accompanied by a footnote indicating that the exemption from the visa requirement shall apply from the date of entry into force of an agreement on visa exemption to be concluded with the European Union.

(3)

On 9 October 2014, the Council adopted a decision authorising the Commission to open negotiations with the Republic of Palau for the conclusion of an agreement between the European Union and the Republic of Palau on the short-stay visa waiver (the ‘Agreement’).

(4)

Negotiations on the Agreement were opened on 17 December 2014 and were successfully finalised by the initialling thereof, by exchange of letters, on 27 May 2015 by the Republic of Palau and on 10 June 2015 by the Union.

(5)

The Agreement should be signed, and the declarations attached to the Agreement should be approved, on behalf of the Union. The Agreement should be applied on a provisional basis as from the day following the date of signature thereof, pending the completion of the procedures for its formal conclusion.

(6)

This Decision constitutes a development of the provisions of the Schengen acquis in which the United Kingdom does not take part, in accordance with Council Decision 2000/365/EC (3); the United Kingdom is therefore not taking part in the adoption of this Decision and is not bound by it or subject to its application.

(7)

This Decision constitutes a development of the provisions of the Schengen acquis in which Ireland does not take part, in accordance with Council Decision 2002/192/EC (4); Ireland is therefore not taking part in the adoption of this Decision and is not bound by it or subject to its application,

18.12.2015   

EN

Official Journal of the European Union

L 332/13

(a)

‘Member State’ shall mean any Member State of the Union, with the exception of the United Kingdom and Ireland;

(b)

‘a citizen of the Union’ shall mean a national of a Member State as defined in point (a);

(c)

‘a citizen of Palau’ shall mean any person who holds the citizenship of Palau;

(d)

‘Schengen area’ shall mean the area without internal borders comprising the territories of the Member States as defined in point (a) applying the Schengen acquis in full.

(a)

monitoring the implementation of this Agreement;

(b)

suggesting amendments or additions to this Agreement;

(c)

settling disputes arising from the interpretation or application of this Agreement.

18.12.2015   

EN

Official Journal of the European Union

L 332/19

(1)

Directive 2011/16/EU replaced Council Directive 77/799/EEC (2). A number of important adaptations of the rules concerning administrative cooperation in the field of taxation were made, in particular as regards the exchange of information between Member States with a view to enhancing the efficiency and the effectiveness of cross border exchange of information.

(2)

Council Directive 2014/107/EU (3) amended Directive 2011/16/EU to introduce the mandatory automatic exchange of financial account information and the relating set of reporting and due diligence rules.

(3)

In order to ensure the functioning of the new legal framework, Directive 2011/16/EU requires certain rules on the standard forms and computerised formats and the practical arrangements on the exchange of information between Member States to be adopted by means of implementing acts. Commission Implementing Regulation (EU) No 1156/2012 (4) provides detailed rules as regards the standard forms and the computerised formats to be used in relation to Directive 2011/16/EU.

(4)

Considering the changes to be made with a view of implementing Directive 2011/16/EU and in order to ease the readability of the implementing act, it is appropriate to repeal Implementing Regulation (EU) No 1156/2012 and to set out new consolidated rules.

(5)

In order to facilitate the exchange of information, Directive 2011/16/EU requires that such exchange of information under that Directive should take place using standard forms except for mandatory automatic exchange of information.

(6)

The standard forms to be used should contain a number of fields that are sufficiently diversified, so as to allow Member States to easily deal with all relevant cases, using the fields appropriate for each case.

(7)

For the purposes of the mandatory automatic exchange of information, Directive 2011/16/EU requires the Commission to adopt both the practical arrangements and the computerised format. With a view to ensuring the appropriateness and usability of the information exchanged and the efficiency of the exchange itself, detailed rules should be laid down in this regard.

(8)

The condition that the mandatory automatic exchange of information on the five categories of income and capital pursuant to Article 8(1) of Directive 2011/16/EU is subject to the availability of the information justifies that the corresponding computerised format is not specified beyond the level of the overall structure and classes of elements composing the computerised format, while the detailed elements exchanged under each of those classes remain subject to its availability in each Member State.

(9)

Taking into account that the information exchanged under Article 8(3a) of Directive 2011/16/EU is to be collected by Reporting Financial Institutions pursuant to the applicable reporting and due diligence rules laid down in Annexes I and II to Directive 2011/16/EU and that the exchange is accordingly not subject to the condition of the availability of the information, the computerised format to be used should, in contrast, be expanded to encompass the lowest level of detail and include each element, together with its relevant attributes, if any.

(10)

According to Directive 2011/16/EU, the information should, as far as possible, be provided by electronic means using the Common Communication Network (‘CCN’). Where necessary, the practical arrangements for the communication should be specified. Detailed rules should apply to the communication of reports, statements and other documents not consisting in the information exchanged itself but supporting it and, in the case of communication outside the CCN network and without prejudice to other bilaterally agreed arrangements, to the communication and identification of the information exchanged.

(11)

Laws, regulations and administrative provisions in the Member States necessary to comply with Article 8(3a) of Directive 2011/16/EU regarding the mandatory automatic exchange of financial account information are to apply from 1 January 2016. This Regulation should therefore apply from the same date.

(12)

The measures provided for in this Regulation are in accordance with the opinion of the Committee on Administrative Cooperation for Taxation,

18.12.2015   

EN

Official Journal of the European Union

L 332/46

(1)

Commission Regulations (EC) Nos 2305/2003 (3), 969/2006 (4), 1067/2008 (5) and Commission Implementing Regulation (EU) 2015/2081 (6) lay down specific provisions on the lodging of import licence applications and the issuing of import licences for barley under quota 09.4126, maize under quota 09.4131 and common wheat of a quality other than high quality under quotas 09.4123, 09.4124, 09.4125 and 09.4133 and for certain cereals originating in Ukraine under quotas 09.4306, 09.4307 and 09.4308.

(2)

Commission Regulation (EC) No 1964/2006 (7) and Commission Implementing Regulation (EU) No 480/2012 (8) lay down specific provisions on the lodging of import licence applications and the issuing of import licences for rice originating in Bangladesh under quota 09.4517 and broken rice under quota 09.4079.

(3)

Commission Regulation (EC) No 1918/2006 (9) lays down specific provisions on the lodging of import licence applications and the issuing of import licences for olive oil originating in Tunisia under the quota available.

(4)

In view of the public holidays in 2016, derogations should be made, at certain times, from Regulations (EC) Nos 2305/2003, 969/2006, 1067/2008, Implementing Regulation (EU) 2015/2081, Regulation (EC) Nos 1964/2006, Implementing Regulation (EU) No 480/2012 and Regulation (EC) No 1918/2006 as regards the dates for lodging import licence applications and issuing import licences in order to ensure compliance with the quota volumes in question.

(5)

Under Article 7d(1) of Commission Regulation (EC) No 951/2006 (10), export licences for out-of-quota sugar and isoglucose are issued from the Friday following the week during which the licence applications were lodged, provided that no particular measures have since been taken by the Commission.

(6)

In view of the public holidays in 2016 and the resulting impact on the publication of the Official Journal of the European Union, the period between the lodging of applications and the day on which the licences are to be issued will be too short to ensure proper management of the market. That period should therefore be extended.

(7)

The measures provided for in this Regulation are in accordance with the opinion of the Committee for the Common Organisation of Agricultural Markets,

18.12.2015   

EN

Official Journal of the European Union

L 332/50

(1)

Commission Regulation (EC) No 1484/95 (3) lays down detailed rules for implementing the system of additional import duties and fixes representative prices in the poultrymeat and egg sectors and for egg albumin.

(2)

Regular monitoring of the data used to determine representative prices for poultrymeat and egg products and for egg albumin shows that the representative import prices for certain products should be amended to take account of variations in price according to origin.

(3)

Regulation (EC) No 1484/95 should be amended accordingly.

(4)

Given the need to ensure that this measure applies as soon as possible after the updated data have been made available, this Regulation should enter into force on the day of its publication,

18.12.2015   

EN

Official Journal of the European Union

L 332/52

(1)

Regulation (EC) No 1059/2003 constitutes the legal framework for the regional classification in order to enable the collection, compilation and dissemination of harmonised regional statistics in the Union.

(2)

According to Article 5(5) of Regulation (EC) No 1059/2003, when an amendment is made to the NUTS classification, the Member State concerned should transmit to the Commission the time series for the new regional breakdown to replace data already transmitted. The list of the time series and their length should be specified by the Commission taking into account the feasibility of providing them. These time series are to be supplied within 2 years of the amendment to the NUTS classification.

(3)

The NUTS classification has been amended by Commission Regulation (EU) No 1319/2013 (2) with effect from 1 January 2015 and Commission Regulation (EU) No 868/2014 (3) with effect from 1 January 2016.

(4)

The measures provided for in this Regulation are in accordance with the opinion of the European Statistical System Committee,

18.12.2015   

EN

Official Journal of the European Union

L 332/54

(1)

Regulation (EC) No 1831/2003 provides for the authorisation of additives for use in animal nutrition and for the grounds and procedures for granting such authorisation.

(2)

In accordance with Article 7 of Regulation (EC) No 1831/2003 an application was submitted for the authorisation of the preparation of alpha-galactosidase (EC 3.2.1.22) produced by Saccharomyces cerevisiae (CBS 615.94) and endo-1,4-beta-glucanase (EC 3.2.1.4) produced by Aspergillus niger (CBS 120604). That application was accompanied by the particulars and documents required under Article 7(3) of Regulation (EC) No 1831/2003.

(3)

That application concerns the authorisation of the preparation of alpha-galactosidase (EC 3.2.1.22) produced by Saccharomyces cerevisiae (CBS 615.94) and endo-1,4-beta-glucanase (EC 3.2.1.4) produced by Aspergillus niger (CBS 120604) as a feed additive for laying hens and minor poultry species for laying, to be classified in the additive category ‘zootechnical additives’.

(4)

The use of preparation of alpha-galactosidase (EC 3.2.1.22) produced by Saccharomyces cerevisiae (CBS 615.94) and endo-1,4-beta-glucanase (EC 3.2.1.4) produced by Aspergillus niger (CBS 120604) was authorised for 10 years for chickens for fattening by Commission Implementing Regulation (EU) No 237/2012 (2) and for chickens reared for laying and minor poultry species for fattening Commission Implementing Regulation (EU) No 1365/2013 (3).

(5)

The European Food Safety Authority (‘the Authority’) concluded in its opinion of 28 April 2015 (4) that, under the proposed conditions of use, the preparation of alpha-galactosidase (EC 3.2.1.22) produced by Saccharomyces cerevisiae (CBS 615.94) and endo-1,4-beta-glucanase (EC 3.2.1.4) produced by Aspergillus niger (CBS 120604) does not have an adverse effect on animal health, human health or the environment, and that it has a potential to improve the egg weight in laying hens. Since the mode of action can be considered to be the same, this conclusion can be extrapolated to minor poultry species for laying. The Authority does not consider that there is a need for specific requirements of post-market monitoring. It also verified the report on the method of analysis of the feed additive in feed submitted by the Reference Laboratory set up by Regulation (EC) No 1831/2003.

(6)

The assessment of the preparation of alpha-galactosidase (EC 3.2.1.22) produced by Saccharomyces cerevisiae (CBS 615.94) and endo-1,4-beta-glucanase (EC 3.2.1.4) produced by Aspergillus niger (CBS 120604) shows that the conditions for authorisation, as provided for in Article 5 of Regulation (EC) No 1831/2003, are satisfied. Accordingly, the use of that preparation should be authorised as specified in the Annex to this Regulation.

(7)

The measures provided for in this Regulation are in accordance with the opinion of the Standing Committee on Plants, Animals, Food and Feed,

18.12.2015   

EN

Official Journal of the European Union

L 332/57

(1)

Commission Regulation (EC) No 669/2009 (2) lays down rules concerning the increased level of official controls to be carried out on imports of feed and food of non-animal origin listed in Annex I thereto (‘the list’), at the points of entry into the territories referred to in Annex I to Regulation (EC) No 882/2004.

(2)

Article 2 of Regulation (EC) No 669/2009 provides that the list is to be reviewed on a regular basis, and at least quarterly, taking into account at least the sources of information referred to in that Article.

(3)

The occurrence and relevance of recent food incidents notified through the Rapid Alert System for Food and Feed, the findings of audits to third countries carried out by the Food and Veterinary Office, as well as the quarterly reports on consignments of feed and food of non-animal origin submitted by Member States to the Commission in accordance with Article 15 of Regulation (EC) No 669/2009 indicate that the list should be amended.

(4)

In particular, the list should be amended by deleting the entries for commodities for which the available information indicates an overall satisfactory degree of compliance with the relevant safety requirements provided for in Union legislation and for which an increased level of official controls is therefore no longer justified. The entry in the list concerning table grapes from Peru should therefore be deleted.

(5)

In order to ensure consistency and clarity, it is appropriate to replace Annex I to Regulation (EC) No 669/2009 by the text set out in the Annex to this Regulation.

(6)

Regulation (EC) No 669/2009 should therefore be amended accordingly.

(7)

The measures provided for in this Regulation are in accordance with the opinion of the Standing Committee on Plants, Animals, Food and Feed,

18.12.2015   

EN

Official Journal of the European Union

L 332/63

(1)

Following an anti-dumping investigation (‘the original investigation’), the Council imposed, by means of Regulation (EC) No 925/2009 (2), a definitive anti-dumping duty on imports of certain aluminium foil originating in Armenia, Brazil and the People's Republic of China (‘the PRC’ or ‘China’).

(2)

The measures took the form of an ad valorem duty established at 13,4 % on imports from Armenia, at 17,6 % on imports from Brazil and at 30 % on imports from the PRC, with the exception of Alcoa (Shanghai) Aluminium Products Co., Ltd (6,4 %), Alcoa (Bohai) Aluminium Industries Co., Ltd (6,4 %), Shandong Loften Aluminium Foil Co., Ltd (20,3 %) and Zhenjiang Dingsheng Aluminium Co., Ltd (24,2 %).

(3)

An undertaking offered by one Brazilian exporting producer was accepted by the Commission by means of Commission Decision 2009/736/EC (3).

(4)

Following the publication of a notice of impending expiry (4) of the anti-dumping measures in force, the Commission received a request for the initiation of an expiry review of the measures against Brazil and the PRC pursuant to Article 11(2) of the basic Regulation.

(5)

The request was lodged by AFM Aluminiumfolie Merseburg GmbH, Alcomet AD, Eurofoil Luxembourg SA, Hydro Aluminium Rolled Products GmbH, Impol d.o.o. and Symetal SA, (‘the applicants’) on behalf of producers representing more than 25 % of the total Union production of certain aluminium foils.

(6)

The request was based on the grounds that the expiry of the measures would be likely to result in a continuation or recurrence of dumping and injury to the Union industry.

(7)

The applicants did not request the initiation of an expiry review investigation of the anti-dumping measures against imports originating in Armenia. These measures therefore lapsed on 7 October 2014 (5).

(8)

Having determined, after consulting the Advisory Committee, that sufficient evidence existed for the initiation of an expiry review, the Commission announced on 4 October 2014, by a notice published in the Official Journal of the European Union  (6) (‘Notice of Initiation’), the initiation of an expiry review pursuant to Article 11(2) of the basic Regulation.

(9)

In parallel, on 8 October 2014, the Commission announced the initiation of an anti-dumping investigation pursuant Article 5 of the basic Regulation with regard to imports into the Union of certain aluminium foils originating in Russia (7) (the ‘parallel investigation’).

(10)

In that investigation, the Commission imposed in July 2015, by means of Regulation (EU) 2015/1081 (8), a provisional anti-dumping duty on imports of certain aluminium foils originating in Russia. The provisional measures were imposed for a period of six months.

(11)

On 17 December 2015, the Commission imposed, by means of Regulation (EU) No 2015/2385 (9), a definitive anti-dumping duty on imports of certain aluminium foils originating in Russia.

(12)

The two parallel investigations covered the same review investigation period and the same period considered as defined in recital 13.

(13)

The investigation of the likelihood of continuation or recurrence of dumping and injury covered the period from 1 October 2013 to 30 September 2014 (the ‘review investigation period’). The examination of the trends relevant for the assessment of the likelihood of a continuation or recurrence of injury covered the period from 1 January 2011 to the end of the review investigation period (the ‘period considered’).

(14)

The Commission officially advised the applicants, the other known Union producers, the exporting producers in Brazil and the PRC, the known importers, the users and traders known to be concerned, and the representatives of the exporting countries, of the initiation of the expiry review.

(15)

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. All interested parties, who so requested and showed that there were particular reasons why they should be heard, were granted a hearing.

(16)

In its Notice of Initiation, the Commission announced that it might sample the exporting producers in the PRC, Union producers and unrelated importers in accordance with Article 17 of the basic Regulation. No sampling was foreseen for exporting producers in Brazil.

(17)

Out of 12 known Chinese producers, two submitted a reply to the sampling questionnaire. In view of the limited number of cooperating companies, no sampling was required.

(18)

In its Notice of Initiation, the Commission stated that it had provisionally selected a sample of Union producers. In accordance with Article 17(1) of the basic Regulation, the Commission selected the sample on the basis of the largest representative volume of sales and production. The sample consisted of six Union producers and their related companies, as the internal structure of the groups was unclear at the beginning of the investigation as far as it concerns the functions of producing and reselling the product in question. The sampled Union producers accounted for over 70 % of total Union production. The Commission invited interested parties to comment on the provisional sample. No comments were received within the deadline and the provisional sample was thus confirmed. The sample is considered representative of the Union industry.

(19)

In March 2015, one of the sampled Union producers sold all its activity including equipment, rights permits, obligations concerning employees and its existing contracts to a new company. As this change took place after the investigation period, it is not relevant for the investigation under Article 6(1) of the basic Regulation.

(20)

To decide whether sampling is necessary and, if so, to select a sample, the Commission asked all unrelated importers to provide the information specified in the Notice of Initiation.

(21)

Fourteen known importers/users were contacted at the initiation stage and were invited to explain their activity and to fill in the sampling form attached to the Notice of Initiation, if applicable.

(22)

Five companies replied to the sampling form. Four of them were rewinders, i.e. industrial users which were importing the product concerned for further processing before re-selling it and one was a trader that did not, however, import the product concerned during the period considered. Due to the limited number of companies having responded to the sampling form, sampling was not warranted.

(23)

Two other users came forward. A user's questionnaire was sent to them.

(24)

The Commission sought and verified all the information deemed necessary for the purpose of a determination of dumping, resulting injury and Union interest.

(25)

The Commission sent questionnaires to the six sampled Union producers and their related companies, two Brazilian exporting producers and two Chinese exporting producers, one trader and the above six users identified in the Union.

(26)

Questionnaire replies were received from all sampled Union producers and from three users.

(27)

Two Chinese exporting producers and one Brazilian producer replied to the questionnaire. A second Brazilian producer had initially indicated its interest to cooperate with the investigation, but did not reply to the questionnaire. Consequently, a letter was sent to this company informing it of the Commission's intension to apply Article 18 of the basic Regulation. The company responded that it would not fill in the questionnaire but that its views would be represented by the Brazilian Aluminium Association (Associação Brasileira do Aluminió, ‘ABAL’). In addition, written submissions were received from ABAL.

(28)

Verification visits pursuant to Article 16 of the basic Regulation were carried out at the premises of the following companies:

(29)

The product concerned is aluminium foil of a thickness of not less than 0,008 mm and not more than 0,018 mm, not backed, not further worked than rolled, in rolls of a width not exceeding 650 mm and of a weight exceeding 10 kg (‘jumbo rolls’) originating in Brazil and the PRC, currently falling within CN code ex 7607 11 19 (TARIC code 7607111910) (‘the product concerned’). The product concerned is commonly known as aluminium household foil (‘AHF’).

(30)

AHF is manufactured on the basis of pure aluminium, which is firstly cast into thick strips (of a thickness of several mm, i.e. up to 1 000 times thicker than the product concerned) and subsequently rolled in different stages into the desired thickness. Once rolled, the foil is annealed by a thermal process and is finally presented on reels (rolls).

(31)

These reels of AHF are further rewound into smaller rolls by downstream processors so-called rewinders. The obtained product (i.e. consumer rolls which is not product concerned) is used in multi-purpose short-life wrapping, mostly in households, catering, food and floristry retail business.

(32)

The investigation showed that the product concerned, the product produced and sold on the Brazilian and Chinese domestic markets, the product produced and sold on the domestic market in Turkey, which served as an analogue country, and the product produced and sold in the Union by the Union industry have the same basic physical, chemical and technical characteristics as well as the same basic uses.

(33)

The Commission therefore concluded that these products are alike within the meaning of Article 1(4) of the basic Regulation.

(34)

In accordance with Article 11(2) of the basic Regulation, the Commission examined whether the expiry of the existing measures would be likely to lead to a continuation or recurrence of dumping from Brazil and the PRC.

(35)

One producer from Brazil cooperated with the investigation. Before the imposition of the original measures, the producer had represented 100 % of the exports of AHF from Brazil to the Union.

(36)

There were no exports of AHF from Brazil to the Union during the review investigation period. Therefore, there is no likelihood of continuation of dumping from Brazil. The assessment was thus limited to the likelihood of recurrence of dumping using export prices to other third countries.

(37)

The Commission analysed whether there was a likelihood of recurrence of dumping should the measures lapse. When doing so, the following elements were analysed: the production capacity and spare capacity in Brazil, the absence of dumping from Brazil to other markets, and the attractiveness of the Union market.

(38)

The capacity utilisation of the cooperating Brazilian producer was found to be above 90 % and its unused spare capacity to be 3 000 tonnes per year. This is equivalent to 6 % of the production of the Union industry and 3 % of the Union consumption. It was therefore concluded that there was no significant spare capacity that could be directed to the Union market should the measures against Brazil be allowed to lapse.

(39)

The other two known Brazilian producers did not cooperate with the investigation, and therefore their spare capacity could not be verified. A study submitted by the applicants estimated the combined capacity for aluminium foils of the two other producers to be 58 000 tonnes for all types of aluminium foil combined, equivalent to the total capacity of the cooperating Brazilian producer. It is considered unlikely that these two producers would have a significant spare capacity that would be directed to the Union market, should the measures against Brazil be allowed to lapse: they were not exporting to the Union, neither during the review investigation period, nor before the imposition of the original measures.

(40)

The exports of the cooperating Brazilian producer during the review investigation period were to a single customer in the USA. These exports represented 68 % of total Brazilian AHF exports to the USA in 2013, making the cooperating producer the biggest Brazilian exporter of aluminium foils. These exports represented 33 % of all Brazilian AHF exports in 2013. No dumping was found in these exports when the export price was compared with the normal value in Brazil. The absence of dumping was determined using the methodology as set out below.

(41)

In accordance with Article 2(2) of the basic Regulation the Commission first examined whether the total volume of domestic sales of the like product to independent customers made by the cooperating producer in Brazil was representative in comparison with the total export volume, namely whether the total volume of such domestic sales represented at least 5 % of the total volume of export sales of the product concerned from Brazil. On that basis, it was found that the domestic sales in Brazil were representative.

(42)

The Commission then examined whether the domestic sales of the like product could be regarded as being made in the ordinary course of trade pursuant to Article 2(4) of the basic Regulation. This was done by establishing the proportion of domestic sales to independent customers on the domestic market which were profitable during the review investigation period. The domestic sales were found to be made in the ordinary course of trade.

(43)

Normal value was thus based on the actual domestic price, which was calculated as a weighted average price of the profitable domestic sales made during the review investigation period.

(44)

The export price was established in accordance with Article 2(8) of the basic Regulation on the basis of export prices actually paid or payable to the first independent customer.

(45)

The normal value and export price of the cooperating exporting producer were compared on an ex-works basis. For the purpose of ensuring a fair comparison between the normal value and the export price, due allowance in the form of adjustments was made for differences affecting prices and price comparability in accordance with Article 2(10) of the basic Regulation.

(46)

On this basis, adjustments were made for differences in physical characteristics, transport, ocean freight and insurance costs, handling loading and ancillary costs, packing costs, credit costs, discounts and commissions where demonstrated to affect price comparability.

(47)

On this basis, the Commission found that there was no dumping occurring in the exports to the USA.

(48)

Therefore, the Commission considers that it is unlikely that, if the current measures were to be repealed, the exporting producers from Brazil would sell the product concerned to the Union market at dumped prices.

(49)

The prices in the Brazilian domestic market are attractive, as demonstrated by the fact that the vast majority of the production is sold on the domestic market. These domestic sales are profitable. The price levels in Brazil are similar to the prices in the Union market.

(50)

It is therefore not expected that, should the measures lapse, the Brazilian exports to the Union market would increase significantly by undercutting the Union prices.

(51)

Two interested parties, ABAL and CBA, claimed that there is no likelihood of recurrence of dumping from Brazil for the following reasons:

(52)

As regards the first claim, the absence of Brazilian exports to the Union was confirmed by the investigation. However, the Commission considers that the absence of exports may have been due to the anti-dumping measures in place. The absence of exports is therefore not in itself a sufficient evidence to conclude that there is no risk of recurrence of dumping.

(53)

As regards the second claim, Brazil's status of net importer of primary aluminium since 2014 was confirmed by the investigation. The increase in domestic demand in Brazil was also confirmed: from 2009 to 2013 the domestic consumption of all aluminium products increased by 48 % and the consumption of aluminium foils increased by 24 %. However, the interested parties did not provide evidence that this fact would necessarily remove the risk of recurrence of dumping. Nevertheless, the increased domestic demand in Brazil was considered as a factor increasing the attractiveness of the domestic market when analysing the attractiveness of the Union market, as explained above.

(54)

As regards the third claim, the investigation confirmed the higher prices on the domestic market, but it was not sufficient to conclude that dumping could not recur in the presence of high domestic prices.

(55)

As regards the fourth claim, the interested parties failed to provide evidence that the behaviour in respect of one product could be used to predict the behaviour in respect of another. This claim was therefore rejected.

(56)

As regards the fifth claim, the investigation confirmed that there were related companies of the non-cooperating Brazilian producers established in the Union. However since none of these companies cooperated with the investigation, it was not possible to determine whether they indeed were producing the like product to supply the Union market. Therefore this claim could not be verified.

(57)

As regard the sixth claim, the investigation confirmed the absence of significant spare capacity. This was considered when assessing the production capacity and spare capacity in Brazil, as explained above.

(58)

As regards the seventh claim, the differences in physical characteristics were duly taken into account when comparing the normal value and the export prices, as explained above.

(59)

The investigation showed that there is only limited spare capacity in Brazil that could be directed to the Union market should the measures against Brazil be allowed to lapse. No dumping practices to other markets were found. The attractiveness of the Union market for Brazilian producers is considered limited in the light of the high attractiveness of their domestic market and the similarity of the price levels.

(60)

Given the above, it is considered unlikely that dumping from Brazil would recur, if measures were to lapse.

(61)

Consequently, the proceeding should be terminated for imports of the product concerned originating in Brazil.

(62)

Two producers from the PRC cooperated with the investigation. They had initially reported 4 264 tonnes of exports to the Union, which according to Eurostat would have corresponded to 250 %-350 % of total Chinese imports to Union in the review investigation period. In the course of the investigation the export volume was established to be within a range of 900-1 100 tonnes for the first producer, corresponding to 53 % 90 % of the total exports from the PRC to the Union. Most of these exports were made under the inward processing regime and hence were neither subject to anti-dumping nor customs duty. The second producer was found to not have exported the product concerned to the Union during the review investigation period.

(63)

In the Notice of Initiation, the Commission had invited all interested parties to comment on its proposal to use Turkey as a market economy third country for the purpose of establishing normal value in respect of the PRC. Turkey had been used as an analogue country in the original investigation.

(64)

One interested party expressed reservations on the proposal of Turkey and suggested South Africa as an alternative analogue country, claiming that South Africa would be more suitable because the cost structure of Turkish producers would be different from the Chinese cost structure and that Turkey had imposed anti-dumping duties of 22 % against Chinese imports of all types of aluminium foil in July 2014.

(65)

In addition to the suggestions made by the interested parties, the Commission itself sought to identify an appropriate analogue country. It identified India, Japan, South Korea, United Arab Emirates, USA, and Taiwan as an additional potential analogue country due to their large production volume of aluminium foils. However it was found that Japan, USA and Taiwan produced thinner aluminium foils but not the product concerned.

(66)

Requests to cooperate were sent to the known producers in India, South Africa, South Korea, United Arab Emirates and Turkey. Cooperation was only received from two exporting producers in Turkey. There was no reply from the producers in the other potential analogue countries.

(67)

Turkey was found to be a significant producer of aluminium foil with an open market and free from distortions as regards the prices of raw material or energy. The production processes in Turkey and in the PRC were found to be similar. Turkey was selected as an analogue country to establish the normal value for the PRC in accordance with Article 2(7)(a) of the basic Regulation and verification visits were carried out at the premises of the two cooperating companies.

(68)

In accordance with Article 2(2) of the basic Regulation it was first examined whether the total volume of domestic sales of the like product to independent customers made by the cooperating producers in Turkey was representative in comparison with the total export volume to the Union, namely whether the total volume of such domestic sales represented at least 5 % of the total volume of export sales of the product concerned to the Union. On that basis, it was found that the domestic sales in the analogue country were representative.

(69)

It was also examined whether the domestic sales of the like product could be regarded as being made in the ordinary course of trade pursuant to Article 2(4) of the basic Regulation. This was done by establishing the proportion of domestic sales to independent customers on the domestic market which were profitable during the review investigation period. The domestic sales of one of the producers were found to be made in the ordinary course of trade, whereas the profitability of sales of the second producer could not be established due to lack of detailed cost accounting data.

(70)

The normal value of the second producer could not be constructed in line with Article 2(3) of the basic Regulation due to lack of detailed cost accounting data.

(71)

Normal value was thus based on the actual domestic price of the first producer, which was calculated as a weighted average price of the profitable domestic sales made during the review investigation period.

(72)

One Chinese producer claimed that the normal value cannot be validly calculated on the basis of the domestic sales of only one Turkish producer. Moreover, the Chinese producer underlined that the confidential nature of the business data of the Turkish producer made it impossible to evaluate or substantiate the resulting dumping margin.

(73)

The use of the data of a single producer in the analogue country is in line with the jurisprudence of the Court of Justice of the European Union, according to which such prices can be used if they are the result of genuine competition in the domestic market. As indicated in recitals 68 and 69 above, there are several Turkish domestic producers and Turkey is also an importer of aluminium foils. The Commission therefore considers that the prices in the Turkish market are the result of genuine competition and there is no element indicating that the prices of a single producer cannot be used to determine normal value. As regards the business data, the Commission must protect the confidentiality of the data submitted by the parties and therefore cannot disclose to the Chinese producer commercially sensitive information concerning the Turkish producer. The claims of the said Chinese exporter must therefore be rejected.

(74)

The export price was established in accordance with Article 2(8) of the basic Regulation on the basis of export prices actually paid or payable to the first independent customers.

(75)

One Chinese producer pointed out that its VAT refund rate had been incorrectly calculated. The calculation was modified accordingly and the Commission re-disclosed the revised findings to the concerned producer.

(76)

The normal value and export price of the cooperating exporting producer were compared on an ex-works basis. For the purpose of ensuring a fair comparison between the normal value and the export price, due allowance in the form of adjustments was made for differences affecting prices and price comparability in accordance with Article 2(10) of the basic Regulation.

(77)

On this basis, adjustments were made for transport, ocean freight and insurance costs, handling loading and ancillary costs, packing costs, credit costs, discounts and commissions where demonstrated to affect price comparability.

(78)

One Chinese producer claimed that the normal import duty of 7,5 % in Turkey pushes the domestic prices up by the same amount and that this should be adjusted for fair comparison. The Chinese producer also claimed that an adjustment for packing costs was not justified because packing costs apply to all producers wherever they are located.

(79)

The Commission notes that China also has in place an import duty for aluminium foils. Therefore, there seems to be no distortion of comparison due to the existence of a similar import duty in Turkey. In addition, even if an adjustment for import duty would be granted it would not change the fact that there is significant dumping from Chinese exporters to the Union market. As regards packing costs, an adjustment has been made to both Chinese export prices and the Turkish domestic prices in order to neutralise any differences in packaging. Consequently, the packing cost adjustment cannot cause a distortion in the comparison. These claims must therefore be rejected.

(80)

As provided by Article 2(11) and (12) of the basic Regulation, the weighted average normal value of each type of the like product in the analogue country was compared with the weighted average export price of the corresponding type of the product concerned.

(81)

On this basis, the weighted average dumping margin, expressed as a percentage of the CIF (cost, insurance, freight) Union frontier price, duty unpaid, is as follows:

(82)

Further to the finding of the existence of dumping during the review investigation period, the Commission investigated the likelihood of continuation of dumping should measures be repealed. The following additional elements were analysed: the production capacity and spare capacity in the PRC, dumping from the PRC to other markets and the attractiveness of the Union market.

(83)

The capacity utilisation of the two cooperating Chinese producers was found to be 85 % and 90 %. The spare capacity was found to be 50 000 tonnes for these two producers. This is equivalent to the total production of the Union industry and more than 50 % of the Union consumption. Furthermore, one of the cooperating companies was in the process of constructing additional foil-rolling capacity of 40 000 tonnes. It was therefore concluded that there was significant spare capacity that could be directed to the Union market at least in part, should the measures against the PRC be allowed to lapse.

(84)

The other known Chinese producers did not cooperate with the investigation, and therefore their spare capacity could not be verified. A study submitted by the applicants estimated the combined capacity for aluminium foils of the other, non-cooperating Chinese producers to be approximately ten times the combined capacity of the two cooperating producers. The study estimates the total Chinese production capacity for all types of aluminium foil to be 450 000 tonnes larger than the total domestic Chinese consumption. The study also forecasts that the Chinese production capacity will continue to increase from 2,5 million tonnes in 2014 to 2,8 million tonnes in 2018 and that the growth of the Chinese domestic consumption from 2,1 million tonnes to 2,4 million tonnes in the same period is unlikely to be sufficient to fully absorb the increasing capacity. It is therefore considered likely that there would be additional spare capacity among the non-cooperating producers that could be directed to the Union market at least in part, should the measures against the PRC be allowed to lapse.

(85)

One Chinese producer, while not disputing the findings concerning spare capacity volumes, claimed that it was unrealistic to assume that the entire spare capacity would be directed to the Union market.

(86)

The Commission considers, in line with its assessment in recitals 84 and 97, that the spare capacity could be directed to the Union market at least in part. The recital 83 has been modified accordingly.

(87)

The export prices to other markets during the review investigation period of one the cooperating Chinese producers (the main export destinations being United Arab Emirates, Saudi Arabia, USA, Egypt and India) were found to be below the Normal Value as established in the recitals 63 to 71 above and therefore dumped. The export prices to other markets of the second Chinese producer could not be collected.

(88)

In view of the existence of dumping to other markets the Commission concludes that the exporting producer from the PRC sells the product concerned to third countries at dumped prices. Therefore, the Commission considers that it is likely that, if the current measures were to be repealed, the exporting producers from the PRC would also sell the product concerned to the Union market at dumped prices.

(89)

One Chinese producer claimed that the finding of dumping in exports to other markets is irrelevant since the scope of the review is limited to the Union market and not the world market. According to the Chinese producer, price comparisons across markets are inappropriate since price structures in other parts of the world can be different. Furthermore, the presence of Union exports to these same markets should also be compared and could result in a finding that the Union domestic prices are too high.

(90)

As explained in recital 82, the Commission has taken into account several indicators to assess the likelihood of dumping to the Union market. The Commission considers that exporters who are found to be dumping in other markets are more likely to engage in dumping into the Union too, when compared with exporters that are found not to be dumping in other markets. For this reason it is a relevant indicator for establishing the likelihood of continuation of dumping. The claim must therefore be rejected.

(91)

The claim concerning export behaviour of the Union producers is addressed in recital 171.

(92)

As mentioned in recital 114 below, the investigation showed that the Chinese imports made under the normal import regime during the review investigation period would have undercut the Union industry prices on average by 12,2 % in the absence of anti-dumping duties. Moreover, Chinese imports made under the inward processing regime and hence not subject to anti-dumping or customs duty, which made about 75 % of the Chinese imports, were found to undercut the Union industry's sales prices by 18 %. The Chinese prices are also lower than export prices from any other country to the Union. These price differentials certainly show the attractiveness of the Union market and the ability of the Chinese exporters to compete by price should measures be repealed.

(93)

Thus, it can be reasonably expected that, should the measures be repealed, a substantial part of the current Chinese exports would be re-directed to the Union.

(94)

It is worth recalling that before the original measures were imposed, the original investigation had established that the Chinese market share in the Union market amounted to 30,72 %. It is therefore expected that, should the measures lapse, the Chinese exports currently having 2 % of the Union market will increase significantly to regain lost market share in the Union.

(95)

One Chinese producer claimed that small undercutting was part of a normal pricing mechanism whenever non-domestic producers are competing with domestic producers. A 12,2 % price undercutting would not be unreasonable and would not cause difficulties to Union producers.

(96)

A finding of undercutting does not in itself lead to a conclusion of unfair behaviour from the exporter. In this case however, the undercutting margin found indicated the likely price levels of Chinese imports should measures be allowed to lapse and their capacity to take over market share in the Union at the expense of the Union industry. In addition, it was found that these imports are likely to be dumped. Therefore, the argument that the level of the price undercutting of 12,2 % would not be unreasonable was irrelevant in this context and was therefore rejected.

(97)

The investigation showed that Chinese imports continued to enter the Union market at dumped prices with significant dumping margins. It also demonstrated that the spare capacity for production of the product concerned in the PRC is significant in comparison with the Union consumption during the review investigation period. This spare capacity is likely to be directed at least in part to the Union market should the measures against the PRC be allowed to lapse.

(98)

In addition, exports from the PRC to third countries were made at dumped prices. This pricing behaviour of the Chinese exports in third markets shows a likelihood of continuation of dumping to the Union market, should the measures be allowed to lapse.

(99)

Furthermore, the attractiveness of the Union market in terms of prices indicates that there is a risk that Chinese exports would be redirected toward the Union market, should the measures be allowed to lapse.

(100)

Given the above, there is a likelihood that, if measures were to lapse, Chinese dumped imports of the product concerned will significantly increase should the measures in force be allowed to lapse.

(101)

The like product was manufactured by 12 known Union producers during the review investigation period. They constitute the ‘Union industry’ within the meaning of Article 4(1) of the basic Regulation.

(102)

The total Union production during the review investigation period was estimated at 47 349 tonnes. The Commission established the figure on the basis of Eurostat statistics, the verified questionnaire replies of the sampled Union producers and the estimated data related to the non-sampled producers and provided by the applicants. As indicated in recital 18, the Union producers selected in the sample represented over 70 % of the total Union production of the like product.

(103)

Data on production, production capacity, sales volume, employment and export volume relating to the whole Union industry for the period considered was provided by the applicants. The data was estimated and provided on a maximum and minimum range basis, broken down in two categories: sampled Union producers and non-sampled Union producers. For the sampled Union producers, the Commission used the actual verified data provided by these companies in their questionnaire replies. For the non-sampled Union producers, the figures provided by the applicants were used. These estimates were made available for comments to the interested parties. No comments were, however, received.

(104)

The Union consumption figures established and published in the parallel investigation have been used in the present investigation. They were determined on the basis of total estimated sales volume of the Union industry on the Union market and the total import volume based on Eurostat and corrected, where necessary, by the verified data provided by the exporting producer of the parallel investigation concerning imports from Russia and the questionnaire replies submitted by the sampled Union producers.

(105)

As there is only one exporting producer in Russia, all figures related to this exporter had to be given in ranges for reasons of confidentiality. Moreover, in order to avoid the Russian import volume to be calculated by deduction, it was also necessary to use ranges for the consumption and import volumes from other third countries.

(106)

On this basis, Union consumption developed as follows:

Table 1

Union consumption for AHF (tonnes)

(107)

Union consumption increased between 2011 and 2013 but decreased between 2013 and the review investigation period. Overall, consumption increased between 17 % and 28 % during the period considered. The increase in consumption between 2011 and the review investigation period mainly reflects the increase of imports from Russia and other third countries, while the sales of the Union industry on the Union market only slightly increased (see recital 134).

(108)

Since the investigation established that there is no likelihood of continuation or recurrence of dumping from Brazil (see recital 60) the analysis of the volume, prices and market share of imports is limited to the imports from the PRC. The Commission established the volume and prices of imports from the PRC on the basis of Eurostat.

(109)

Imports into the Union from the PRC developed as follows:

Table 2

Volume and market shares of imports from the PRC

(110)

Import volumes from the PRC decreased by between 47 % and 57 %, with a corresponding decrease in market share from 4 % to 2 %, namely a decrease of 2 percentage points, during the period considered. Both import volumes and market share from the PRC remained at low levels during the whole period considered.

(111)

The table below shows the average price of the dumped imports.

Table 3

Average price of dumped imports

(112)

The average prices of imports from the PRC decreased during the period considered from EUR 2 251 EUR/tonne to 2 131 EUR/tonne, i.e. a decrease of around 5 %. The prices of Chinese imports were on average lower than Union industry sales prices on the Union market and prices of imports from other third countries during the entire period considered.

(113)

During the review investigation period, about 75 % of the Chinese imports, representing a market share of more than 1 %, were made under the inward processing regime and hence were not subject to anti-dumping nor customs duty. They were found to undercut the Union industry's sales prices by 18 %. In respect of the cooperating exporting producer who represented about 53 %-90 % of the Chinese imports during the review investigation period and made 98 % of its imports under the inward processing regime, an undercutting margin ranging between 15 % and 18 % was established.

(114)

The remaining 25 % of the Chinese imports were made under the normal import regime. When adding the customs duty and the anti-dumping duty to the Chinese CIF prices, Chinese prices calculated for these imports were on average higher than the Union industry's sales prices on the Union market and there was thus a negative undercutting (– 12,5 %). However, when import prices are considered without anti-dumping duties there would be undercutting of 12,2 %.

(115)

When considering all Chinese imports irrespective of the import regime and adding the applicable customs and anti-dumping duties to the CIF prices of imports made under the normal regime, Chinese prices were found to undercut the Union industry's sales prices by 10,2 % on average during the review investigation period.

(116)

One Chinese producer claimed that the undercutting margin of 18 % established for Chinese imports made under the inward processing regime was incorrect since the prices of Union producers included an ‘inbuilt 7,5 % normal tariff’ which the domestic users could not obtain relief from should they incorporate AHF manufactured in the Union in exports to third countries. However the interested party did not substantiate the claim and in particular failed to explain the notion of ‘inbuilt normal tariff’. In any event it is recalled that, as explained in recital 113, imports made under the inward processing regime are not subject to customs duty. Therefore it would not be justified to make adjustments for customs duties that are not borne. It must be noted also that the Commission duly applied the adjustment for customs duty when establishing the undercutting margin for imports made under the normal regime in recital 114 and for all Chinese imports irrespective of the import regime in recital 115. Therefore the claim was rejected.

(117)

The same Chinese producer claimed that it was necessary to deduct the customs duty rate from the undercutting margins of 12,2 % and 10.2 % established respectively in recitals 114 and 115. It is however clarified that in order to establish these margins the Commission already took into account the customs duty applicable to imports made under the normal regime. Therefore the claim was rejected.

(118)

During the period considered, imports from other third countries into the Union increased by between 45 % and 60 % which is faster than the progression of the Union consumption. The market share of the other third countries therefore increased from 41 % to 51 % over this period.

(119)

There were no imports from Brazil during the period considered. Import volumes from Russia increased between 40 % and 50 % from 2011 until 2013 with a slight decrease in the review investigation period. The corresponding market share increased from 29 % in 2011 to 34 % in 2012 and then remained constant until the end of the review investigation period. During the period considered import volumes from Turkey increased between 125 % and 139 % and their market share increased from around 7 % to 13 %. Turkish import prices decreased by 13 % over the period considered but remained above the price level of imports from other third countries, including Russia and China, and were at similar levels as the Union's industry prices during the review investigation period.

(120)

Overall, imports from other third countries excluding PRC, Russia and Turkey increased between 2 % and 15 %. However, as the Union consumption increased, their total market share decreased from 4 % in 2011 to around 2 % in 2013 and then increased to 4 % by the end of the review investigation period; their prices were at lower levels than the Union industry's prices, with the exception of 2012.

(121)

The prices of imports from the other third countries were higher than the prices of imports from the PRC during the entire period considered.

(122)

One Chinese producer claimed that the Commission's analysis of the imports from other third countries in recitals 118-121 should have encompassed the entire foil market instead of focusing on the product concerned since decisions made by Union producers in respect of other types of foil allegedly influence their production of the product concerned. The claim was not substantiated. In any event the investigation established, as mentioned in recital 185, that the largest sampled Union producer of AHF was producing solely AHF and that Union producers found to produce both AHF and another type of foil named aluminium converter foil (‘ACF’) could not switch easily from producing one product to the other, as the production of both products in certain quantities was needed in order to maximise efficiency. As mentioned in recital 185 the investigation further showed that the sampled Union producers had a stable ratio of production between these types of foil during the period considered. Therefore the claim was rejected.

(123)

One Chinese producer noted that since the production capacity of the Union producers represented less than 50 % of the Union consumption it was necessary for users to import AHF from exporting producers in third countries. On that basis the Chinese producer claimed that exporting producers were competing between themselves and not with the Union producers when supplying users not served by the Union producers. The claim was however not substantiated. First, the allegation that the production capacity of the Union producers represented less than 50 % of the Union consumption is incorrect. As shown in recitals 106 and 129 the Union industry's production capacity represented between 58 % and 74 % of the Union consumption during the review investigation period and was above 55 % during the entire period considered. In addition, as shown in Table 5, the investigation established that the Union industry had spare capacity during the entire period considered that could have been used to serve the Union market if indeed, there had been no competing dumped imports. Furthermore, imports from third countries were also in competition with the like product produced by the Union industry since existing customers of the Union producers were able to switch to suppliers from third countries. Therefore the claim was rejected.

(124)

In accordance with Article 3(5) of the basic Regulation, the Commission examined all economic factors and indices having a bearing on the state of the Union industry.

(125)

As mentioned in recital 18, sampling was used for the determination of possible injury suffered by the Union industry.

(126)

For the injury determination the Commission distinguished between macroeconomic and microeconomic injury indicators. As explained in recital 103, the Commission evaluated macroeconomic indicators relating to the whole Union industry on the basis of information provided by the applicants which was duly verified for the sampled companies. The Commission evaluated microeconomic indicators relating only to the sampled companies on the basis of data contained in the questionnaire replies of the sampled Union producers. Both sets of data were found representative of the economic situation of the Union industry.

(127)

The macroeconomic indicators are: production, production capacity, capacity utilisation, sales volume, market share, growth, employment, productivity and magnitude of the dumping margin.

(128)

The microeconomic indicators are: average unit prices, unit cost, labour costs, inventories, profitability, cash flow, investments, return on investments, and ability to raise capital.

(129)

The total Union production, production capacity and capacity utilisation developed over the period considered as follows:

Table 5

Union industry's total production, production capacity and capacity utilisation