# Official Journal L 36/2012

| | ISSN 1977-0677
  doi:10.3000/19770677.L_2012.036.eng |
| --- | --- |
| Official Journal
  of the European Union | L 36 |
| | |
| English edition | Legislation | Volume 559 February 2012 |

ISSN 1977-0677

doi:10.3000/19770677.L_2012.036.eng

Official Journal

of the European Union

L 36

English edition

Legislation

Volume 559 February 2012

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| Contents | | II   Non-legislative acts | page |
| --- | --- | --- | --- |
| | | REGULATIONS |
| | * | Council Implementing Regulation (EU) No 102/2012 of 27 January 2012 imposing a definitive anti-dumping duty on imports of steel ropes and cables originating in the People’s Republic of China and Ukraine as extended to imports of steel ropes and cables consigned from Morocco, Moldova and the Republic of Korea, whether declared as originating in these countries or not, following an expiry review pursuant to Article 11(2) of Regulation (EC) No 1225/2009 and terminating the expiry review proceeding concerning imports of steel ropes and cables originating in South Africa pursuant to Article 11(2) of Regulation (EC) No 1225/2009 | 1 |
| | * | Commission Implementing Regulation (EU) No 103/2012 of 7 February 2012 concerning the classification of certain goods in the Combined Nomenclature | 17 |
| | * | Commission Implementing Regulation (EU) No 104/2012 of 7 February 2012 concerning the classification of certain goods in the Combined Nomenclature | 19 |
| | * | Commission Implementing Regulation (EU) No 105/2012 of 7 February 2012 concerning the classification of certain goods in the Combined Nomenclature | 21 |
| | * | Commission Implementing Regulation (EU) No 106/2012 of 7 February 2012 concerning the classification of certain goods in the Combined Nomenclature | 23 |
| | * | Commission Implementing Regulation (EU) No 107/2012 of 8 February 2012 amending the Annex to Regulation (EU) No 37/2010 on pharmacologically active substances and their classification regarding maximum residue limits in foodstuffs of animal origin, as regards the substance octenidine dihydrochloride (
  1
  ) | 25 |
| | | Commission Implementing Regulation (EU) No 108/2012 of 8 February 2012 establishing the standard import values for determining the entry price of certain fruit and vegetables | 27 |
| | | DECISIONS |
| | | 2012/72/EU |
| | * | Commission Implementing Decision of 7 February 2012 on a financial contribution from the Union towards emergency measures to combat, in 2011, swine vesicular disease in Italy and classical swine fever in Lithuania
  (notified under document C(2012) 577) | 29 |
| | | RECOMMENDATIONS |
| | | 2012/73/EU |
| | * | Commission Recommendation of 6 February 2012 on data protection guidelines for the Early Warning and Response System (EWRS)
  (notified under document C(2012) 568)

   (
  1
  ) | 31 |

Contents

II   Non-legislative acts

page

REGULATIONS

*

Council Implementing Regulation (EU) No 102/2012 of 27 January 2012 imposing a definitive anti-dumping duty on imports of steel ropes and cables originating in the People’s Republic of China and Ukraine as extended to imports of steel ropes and cables consigned from Morocco, Moldova and the Republic of Korea, whether declared as originating in these countries or not, following an expiry review pursuant to Article 11(2) of Regulation (EC) No 1225/2009 and terminating the expiry review proceeding concerning imports of steel ropes and cables originating in South Africa pursuant to Article 11(2) of Regulation (EC) No 1225/2009

1

*

Commission Implementing Regulation (EU) No 103/2012 of 7 February 2012 concerning the classification of certain goods in the Combined Nomenclature

17

*

Commission Implementing Regulation (EU) No 104/2012 of 7 February 2012 concerning the classification of certain goods in the Combined Nomenclature

19

*

Commission Implementing Regulation (EU) No 105/2012 of 7 February 2012 concerning the classification of certain goods in the Combined Nomenclature

21

*

Commission Implementing Regulation (EU) No 106/2012 of 7 February 2012 concerning the classification of certain goods in the Combined Nomenclature

23

*

Commission Implementing Regulation (EU) No 107/2012 of 8 February 2012 amending the Annex to Regulation (EU) No 37/2010 on pharmacologically active substances and their classification regarding maximum residue limits in foodstuffs of animal origin, as regards the substance octenidine dihydrochloride (
  1
  )

1

25

Commission Implementing Regulation (EU) No 108/2012 of 8 February 2012 establishing the standard import values for determining the entry price of certain fruit and vegetables

27

DECISIONS

2012/72/EU

*

Commission Implementing Decision of 7 February 2012 on a financial contribution from the Union towards emergency measures to combat, in 2011, swine vesicular disease in Italy and classical swine fever in Lithuania
  (notified under document C(2012) 577)

(notified under document C(2012) 577)

29

RECOMMENDATIONS

2012/73/EU

*

Commission Recommendation of 6 February 2012 on data protection guidelines for the Early Warning and Response System (EWRS)
  (notified under document C(2012) 568)

   (
  1
  )

(notified under document C(2012) 568)

1

31

| | |
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| | (1)   Text with EEA relevance |

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(1)   Text with EEA relevance

1

| EN | Acts whose titles are printed in light type are those relating to day-to-day management of agricultural matters, and are generally valid for a limited period.
  The titles of all other Acts are printed in bold type and preceded by an asterisk. |
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EN

Acts whose titles are printed in light type are those relating to day-to-day management of agricultural matters, and are generally valid for a limited period.

The titles of all other Acts are printed in bold type and preceded by an asterisk.

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II Non-legislative acts

REGULATIONS

| 9.2.2012 | EN | Official Journal of the European Union | L 36/1 |
| --- | --- | --- | --- |

9.2.2012

EN

Official Journal of the European Union

L 36/1

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COUNCIL IMPLEMENTING REGULATION (EU) No 102/2012

of 27 January 2012

imposing a definitive anti-dumping duty on imports of steel ropes and cables originating in the People’s Republic of China and Ukraine as extended to imports of steel ropes and cables consigned from Morocco, Moldova and the Republic of Korea, whether declared as originating in these countries or not, following an expiry review pursuant to Article 11(2) of Regulation (EC) No 1225/2009 and terminating the expiry review proceeding concerning imports of steel ropes and cables originating in South Africa pursuant to Article 11(2) of Regulation (EC) No 1225/2009

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (1) (‘the basic Regulation’), and in particular Articles 9(2), 9(4) and 11(2) thereof,

Having regard to the proposal submitted by the European Commission (‘the Commission’) after consulting the Advisory Committee,

Whereas:

A.   PROCEDURE

PROCEDURE

1.   Previous investigations and existing measures

Previous investigations and existing measures

| (1) | By Regulation (EC) No 1796/1999 (2) (‘the original Regulation’), the Council imposed a definitive anti-dumping duty on imports of steel ropes and cables (‘SWR’) originating, inter alia, in the People’s Republic of China (‘the PRC’), India, South Africa and Ukraine. These measures will hereinafter be referred to as ‘the original measures’ and the investigation that led to the measures imposed by the original Regulation will hereinafter be referred to as ‘the original investigation’. |
| --- | --- |

(1)

By Regulation (EC) No 1796/1999 (2) (‘the original Regulation’), the Council imposed a definitive anti-dumping duty on imports of steel ropes and cables (‘SWR’) originating, inter alia, in the People’s Republic of China (‘the PRC’), India, South Africa and Ukraine. These measures will hereinafter be referred to as ‘the original measures’ and the investigation that led to the measures imposed by the original Regulation will hereinafter be referred to as ‘the original investigation’.

2

| (2) | In 2001, the Council, by Regulation (EC) No 1601/2001 (3), imposed a definitive anti-dumping duty ranging from 9,7 % to 50,7 % on imports of certain iron or steel ropes and cables originating, inter alia, in the Russian Federation. The same level of duties was imposed by Council Regulation (EC) No 1279/2007 (4) following partial interim and expiry reviews. In April 2004, by Regulation (EC) No 760/2004 (5), the Council extended the original measures to imports of SWR consigned from Moldova following an investigation on the circumvention of the anti-dumping measures imposed on SWR of Ukrainian origin via Moldova. Similarly, in October 2004, by Regulation (EC) No 1886/2004 (6), the Council extended the original measures against the PRC to imports of SWR consigned from Morocco. |
| --- | --- |

(2)

In 2001, the Council, by Regulation (EC) No 1601/2001 (3), imposed a definitive anti-dumping duty ranging from 9,7 % to 50,7 % on imports of certain iron or steel ropes and cables originating, inter alia, in the Russian Federation. The same level of duties was imposed by Council Regulation (EC) No 1279/2007 (4) following partial interim and expiry reviews. In April 2004, by Regulation (EC) No 760/2004 (5), the Council extended the original measures to imports of SWR consigned from Moldova following an investigation on the circumvention of the anti-dumping measures imposed on SWR of Ukrainian origin via Moldova. Similarly, in October 2004, by Regulation (EC) No 1886/2004 (6), the Council extended the original measures against the PRC to imports of SWR consigned from Morocco.

3

4

5

6

| (3) | By Regulation (EC) No 1858/2005 (7) the Council, following an expiry review, maintained the original measures in accordance with Article 11(2) of the basic Regulation. These measures will hereinafter be referred to as ‘the measures in force’ and the expiry review investigation will be hereinafter referred to as ‘the last investigation’. In May 2010, by Implementing Regulation (EU) No 400/2010 (8), the Council extended the original measures to imports of SWR consigned from the Republic of Korea following an investigation on the circumvention of the anti-dumping measures on SWR of PRC origin via the Republic of Korea. |
| --- | --- |

(3)

By Regulation (EC) No 1858/2005 (7) the Council, following an expiry review, maintained the original measures in accordance with Article 11(2) of the basic Regulation. These measures will hereinafter be referred to as ‘the measures in force’ and the expiry review investigation will be hereinafter referred to as ‘the last investigation’. In May 2010, by Implementing Regulation (EU) No 400/2010 (8), the Council extended the original measures to imports of SWR consigned from the Republic of Korea following an investigation on the circumvention of the anti-dumping measures on SWR of PRC origin via the Republic of Korea.

7

8

2.   Request for an expiry review

Request for an expiry review

| (4) | On 13 November 2010, the Commission announced by a notice published in the Official Journal of the European Union the initiation of an expiry review (‘notice of initiation’) (9) of the anti-dumping measures applicable to imports of SWR originating in the PRC, South Africa and Ukraine pursuant to Article 11(2) of the basic Regulation. |
| --- | --- |

(4)

On 13 November 2010, the Commission announced by a notice published in the Official Journal of the European Union the initiation of an expiry review (‘notice of initiation’) (9) of the anti-dumping measures applicable to imports of SWR originating in the PRC, South Africa and Ukraine pursuant to Article 11(2) of the basic Regulation.

Official Journal of the European Union

9

| (5) | The review was initiated following a substantiated request lodged by the Liaison Committee of European Union Wire Rope Industries (EWRIS) (‘the applicant’) on behalf of Union producers representing a major proportion, in this case more than 60 %, of the total Union production of SWR. 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 (‘UI’). |
| --- | --- |

(5)

The review was initiated following a substantiated request lodged by the Liaison Committee of European Union Wire Rope Industries (EWRIS) (‘the applicant’) on behalf of Union producers representing a major proportion, in this case more than 60 %, of the total Union production of SWR. 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 (‘UI’).

| (6) | In the absence of such evidence concerning imports originating in India, the applicant did not request the initiation of an expiry review concerning imports originating in India. Consequently, the measures applicable to imports originating in India expired on 17 November 2010 (10). |
| --- | --- |

(6)

In the absence of such evidence concerning imports originating in India, the applicant did not request the initiation of an expiry review concerning imports originating in India. Consequently, the measures applicable to imports originating in India expired on 17 November 2010 (10).

10

3.   Investigation

Investigation

| (7) | The Commission officially advised the exporting producers, importers, known users and their associations, the representatives of the exporting countries, the applicant and the Union producers mentioned in the request of the initiation of the review. 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. |
| --- | --- |

(7)

The Commission officially advised the exporting producers, importers, known users and their associations, the representatives of the exporting countries, the applicant and the Union producers mentioned in the request of the initiation of the review. 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.

| (8) | In view of the large number of exporting producers in the PRC, of Union producers and of importers involved in the investigation, sampling was initially envisaged in the notice of initiation in accordance with Article 17 of the basic Regulation. In order to enable the Commission to decide whether sampling would indeed be necessary and, if so, to select a sample, the above parties were requested to make themselves known within 2 weeks of the initiation of the proceeding and to provide the Commission with the information requested in the notice of initiation. |
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(8)

In view of the large number of exporting producers in the PRC, of Union producers and of importers involved in the investigation, sampling was initially envisaged in the notice of initiation in accordance with Article 17 of the basic Regulation. In order to enable the Commission to decide whether sampling would indeed be necessary and, if so, to select a sample, the above parties were requested to make themselves known within 2 weeks of the initiation of the proceeding and to provide the Commission with the information requested in the notice of initiation.

| (9) | Given that only one exporting producer in the PRC provided the information requested in the notice of initiation and expressed its willingness to further cooperate with the Commission, it was decided not to apply sampling in the case of the exporting producers in the PRC, and to send a questionnaire to the aforementioned producer. |
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(9)

Given that only one exporting producer in the PRC provided the information requested in the notice of initiation and expressed its willingness to further cooperate with the Commission, it was decided not to apply sampling in the case of the exporting producers in the PRC, and to send a questionnaire to the aforementioned producer.

| (10) | Twenty Union producers/producer groups provided the information requested in the notice of initiation and expressed their willingness to cooperate with the Commission. On the basis of the information received from the Union producers/producer groups, the Commission selected a sample of three producers/groups of producers, which were found to be representative of the UI in terms of volume of production and sales of the like product in the Union. |
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(10)

Twenty Union producers/producer groups provided the information requested in the notice of initiation and expressed their willingness to cooperate with the Commission. On the basis of the information received from the Union producers/producer groups, the Commission selected a sample of three producers/groups of producers, which were found to be representative of the UI in terms of volume of production and sales of the like product in the Union.

| (11) | Eight importers provided the information requested in the notice of initiation and expressed their willingness to cooperate with the Commission. However, since only two importers had actually imported the product concerned, the Commission decided not to apply sampling and to send a questionnaire to the aforementioned importers. |
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(11)

Eight importers provided the information requested in the notice of initiation and expressed their willingness to cooperate with the Commission. However, since only two importers had actually imported the product concerned, the Commission decided not to apply sampling and to send a questionnaire to the aforementioned importers.

| (12) | Questionnaires were therefore sent to the three sampled Union producers/producer groups, to two importers and to all known exporting producers in the three countries concerned. |
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(12)

Questionnaires were therefore sent to the three sampled Union producers/producer groups, to two importers and to all known exporting producers in the three countries concerned.

| (13) | The exporting producer in the PRC that answered to the sampling form subsequently failed to submit the questionnaire reply. It is therefore considered that no exporting producers in the PRC cooperated in the investigation. |
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(13)

The exporting producer in the PRC that answered to the sampling form subsequently failed to submit the questionnaire reply. It is therefore considered that no exporting producers in the PRC cooperated in the investigation.

| (14) | One exporting producer in Ukraine provided a limited submission at the time of the initiation of the investigation. The producer was invited to fill in a questionnaire, however it failed to submit the questionnaire reply. It is therefore considered that no exporting producers in Ukraine cooperated in the investigation. |
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(14)

One exporting producer in Ukraine provided a limited submission at the time of the initiation of the investigation. The producer was invited to fill in a questionnaire, however it failed to submit the questionnaire reply. It is therefore considered that no exporting producers in Ukraine cooperated in the investigation.

| (15) | One exporting producer in South Africa provided a reply to the questionnaire. |
| --- | --- |

(15)

One exporting producer in South Africa provided a reply to the questionnaire.

| (16) | Replies to the questionnaires were further received from the three sampled Union producers/producer groups, two importers and one user. |
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(16)

Replies to the questionnaires were further received from the three sampled Union producers/producer groups, two importers and one user.

| (17) | The Commission sought and verified all information it deemed necessary for the purpose of determining the likelihood of continuation or recurrence of dumping and resulting injury and of the Union interest. Verification visits were carried out at the premises of the following companies:






  (a) | Union producers:






  — | CASAR Drahtseilwerk Saar GmbH, Germany, |
| --- | --- | --- | --- |

(17)

The Commission sought and verified all information it deemed necessary for the purpose of determining the likelihood of continuation or recurrence of dumping and resulting injury and of the Union interest. Verification visits were carried out at the premises of the following companies:

(a)

Union producers:

—

CASAR Drahtseilwerk Saar GmbH, Germany,

| — | BRIDON Group composed of two companies: Bridon International Ltd, United Kingdom, and BRIDON International GmbH, Germany, |
| --- | --- |

—

BRIDON Group composed of two companies: Bridon International Ltd, United Kingdom, and BRIDON International GmbH, Germany,

| — | REDAELLI Tecna SpA, Italy; |
| --- | --- |

—

REDAELLI Tecna SpA, Italy;

| (b) | exporting producer in South Africa:






  — | SCAW South Africa Ltd, South Africa; |
| --- | --- | --- |

(b)

exporting producer in South Africa:

—

SCAW South Africa Ltd, South Africa;

| (c) | importers:






  — | HEKO Industrieerzeugnisse GmbH, Germany, |
| --- | --- | --- |

(c)

importers:

—

HEKO Industrieerzeugnisse GmbH, Germany,

| — | SENTECH International, France; |
| --- | --- |

—

SENTECH International, France;

| (d) | user:






  — | ASCENSORES ORONA S coop, Spain. |
| --- | --- | --- |

(d)

user:

—

ASCENSORES ORONA S coop, Spain.

| (18) | The investigation regarding the continuation or recurrence of dumping and injury covered the period from 1 October 2009 to 30 September 2010 (‘review investigation period’ or ‘RIP’). The examination of the trends relevant for the assessment of a likelihood of a continuation or recurrence of injury covered the period from 1 January 2007 up to the end of the RIP (‘period considered’). |
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(18)

The investigation regarding the continuation or recurrence of dumping and injury covered the period from 1 October 2009 to 30 September 2010 (‘review investigation period’ or ‘RIP’). The examination of the trends relevant for the assessment of a likelihood of a continuation or recurrence of injury covered the period from 1 January 2007 up to the end of the RIP (‘period considered’).

B.   PRODUCT CONCERNED AND LIKE PRODUCT

PRODUCT CONCERNED AND LIKE PRODUCT

1.   Product concerned

Product concerned

| (19) | The product concerned is the same as that in the original investigation and the last investigation which led to the imposition of measures currently in force, i.e. steel ropes and cables, including locked coil ropes, excluding ropes and cables of stainless steel, with a maximum cross-sectional dimension exceeding 3 mm (in industry terminology often referred to as ‘SWR’), currently falling within CN codes ex 7312 10 81, ex 7312 10 83, ex 7312 10 85, ex 7312 10 89 and ex 7312 10 98 (‘the product concerned’). |
| --- | --- |

(19)

The product concerned is the same as that in the original investigation and the last investigation which led to the imposition of measures currently in force, i.e. steel ropes and cables, including locked coil ropes, excluding ropes and cables of stainless steel, with a maximum cross-sectional dimension exceeding 3 mm (in industry terminology often referred to as ‘SWR’), currently falling within CN codes ex 7312 10 81, ex 7312 10 83, ex 7312 10 85, ex 7312 10 89 and ex 7312 10 98 (‘the product concerned’).

2.   Like product

Like product

| (20) | As established in the original and last investigations, this review investigation confirmed that SWR produced in the PRC and Ukraine and exported to the Union, SWR produced and sold on the domestic market of South Africa and exported to the Union, SWR produced and sold on the domestic market of the analogue country, Turkey, and SWR produced and sold in the Union by the Union producers have the same basic physical and technical characteristics and end uses and are therefore considered to be like products within the meaning of Article 1(4) of the basic Regulation. |
| --- | --- |

(20)

As established in the original and last investigations, this review investigation confirmed that SWR produced in the PRC and Ukraine and exported to the Union, SWR produced and sold on the domestic market of South Africa and exported to the Union, SWR produced and sold on the domestic market of the analogue country, Turkey, and SWR produced and sold in the Union by the Union producers have the same basic physical and technical characteristics and end uses and are therefore considered to be like products within the meaning of Article 1(4) of the basic Regulation.

| (21) | An importer put forward an argument that was also raised in the last investigation by the European Wire Rope Importers Association (EWRIA). It alleged that the product concerned and the products manufactured and sold in the Union differ substantially and that a distinction should be made between general and special purpose ropes. These arguments were addressed in depth in the original and last Regulations imposing provisional and definitive measures on imports of the product concerned. Furthermore, in the court case T-369/08 EWRIA v European Commission the General Court held that the Commission did not commit a manifest error of assessment in not differentiating between general and special purpose ropes in the investigations on the basis of the available evidence (11). |
| --- | --- |

(21)

An importer put forward an argument that was also raised in the last investigation by the European Wire Rope Importers Association (EWRIA). It alleged that the product concerned and the products manufactured and sold in the Union differ substantially and that a distinction should be made between general and special purpose ropes. These arguments were addressed in depth in the original and last Regulations imposing provisional and definitive measures on imports of the product concerned. Furthermore, in the court case T-369/08 EWRIA v European Commission the General Court held that the Commission did not commit a manifest error of assessment in not differentiating between general and special purpose ropes in the investigations on the basis of the available evidence (11).

T-369/08 EWRIA

European Commission

11

| (22) | As the importer did not bring any new element showing that the basis on which these original findings were made had changed, the conclusions reached in the original and last Regulations are confirmed. |
| --- | --- |

(22)

As the importer did not bring any new element showing that the basis on which these original findings were made had changed, the conclusions reached in the original and last Regulations are confirmed.

C.   LIKELIHOOD OF A CONTINUATION OR RECURRENCE OF DUMPING

LIKELIHOOD OF A CONTINUATION OR RECURRENCE OF DUMPING

| (23) | In accordance with Article 11(2) of the basic Regulation, it was examined whether dumping was likely to continue or recur upon a possible expiry of the measures in force. |
| --- | --- |

(23)

In accordance with Article 11(2) of the basic Regulation, it was examined whether dumping was likely to continue or recur upon a possible expiry of the measures in force.

1.   Preliminary remarks

Preliminary remarks

| (24) | As regards the PRC and Ukraine, none of the exporting producers cooperated fully. One exporting producer in Ukraine and one exporting producer in the PRC came forward and a questionnaire intended for exporting producers was sent to them. Their replies to the questionnaire were considered as incomplete and inconsistent and no verification visits could be held at their premises. The companies concerned have been duly informed in writing that under these circumstances use would have to be made of facts available in accordance with Article 18 of the basic Regulation. In South Africa, the sole known exporting producer submitted information on its export sales to the Union during the RIP, which represented all export sales of South Africa to the Union during the same period. |
| --- | --- |

(24)

As regards the PRC and Ukraine, none of the exporting producers cooperated fully. One exporting producer in Ukraine and one exporting producer in the PRC came forward and a questionnaire intended for exporting producers was sent to them. Their replies to the questionnaire were considered as incomplete and inconsistent and no verification visits could be held at their premises. The companies concerned have been duly informed in writing that under these circumstances use would have to be made of facts available in accordance with Article 18 of the basic Regulation. In South Africa, the sole known exporting producer submitted information on its export sales to the Union during the RIP, which represented all export sales of South Africa to the Union during the same period.

| (25) | During the RIP, the total import volume, as recorded in Eurostat, of SWR from the PRC, South Africa and Ukraine amounted to 4 833 tonnes, representing 2,4 % of the Union market share. During the last investigation total imports of the countries concerned amounted to 3 915 tonnes, representing 2,2 % of the Union market share. |
| --- | --- |

(25)

During the RIP, the total import volume, as recorded in Eurostat, of SWR from the PRC, South Africa and Ukraine amounted to 4 833 tonnes, representing 2,4 % of the Union market share. During the last investigation total imports of the countries concerned amounted to 3 915 tonnes, representing 2,2 % of the Union market share.

2.   Dumping of imports during the RIP

Dumping of imports during the RIP

| (26) | In accordance with Article 11(9) of the basic Regulation, the same methodology was used as in the original investigation, whenever circumstances have not changed or whenever the information was available. In case of non-cooperation, such as in the case of the PRC and Ukraine, use had to be made of facts available in accordance with Article 18 of the basic Regulation. |
| --- | --- |

(26)

In accordance with Article 11(9) of the basic Regulation, the same methodology was used as in the original investigation, whenever circumstances have not changed or whenever the information was available. In case of non-cooperation, such as in the case of the PRC and Ukraine, use had to be made of facts available in accordance with Article 18 of the basic Regulation.

2.1.   The PRC

The PRC

| (27) | During the RIP, the total import volume, as recorded in Eurostat, of SWR from the PRC amounted to 4 530 tonnes, representing 2,2 % of the Union market share. |
| --- | --- |

(27)

During the RIP, the total import volume, as recorded in Eurostat, of SWR from the PRC amounted to 4 530 tonnes, representing 2,2 % of the Union market share.

2.1.1.   Analogue country

Analogue country

| (28) | Since the PRC is an economy in transition, normal value had to be based on information obtained in an appropriate market economy third country in accordance with Article 2(7)(a) of the basic Regulation. |
| --- | --- |

(28)

Since the PRC is an economy in transition, normal value had to be based on information obtained in an appropriate market economy third country in accordance with Article 2(7)(a) of the basic Regulation.

| (29) | In the last investigation, Turkey was used as an analogue country for the purpose of establishing normal value. For the present investigation the applicant proposed to use again Turkey. No one objected to the choice of an analogue country. |
| --- | --- |

(29)

In the last investigation, Turkey was used as an analogue country for the purpose of establishing normal value. For the present investigation the applicant proposed to use again Turkey. No one objected to the choice of an analogue country.

| (30) | The investigation showed that Turkey had a competitive market for SWR with three domestic producers supplying around 53 % of the market and competition from imports from other third countries. There are no import duties to Turkey on the product concerned and there are no other restrictions for imports of SWR into Turkey. Finally, as mentioned in recital (20), the product produced and sold on the Turkish domestic market was alike to the product exported by the PRC exporting producer to the Union. |
| --- | --- |

(30)

The investigation showed that Turkey had a competitive market for SWR with three domestic producers supplying around 53 % of the market and competition from imports from other third countries. There are no import duties to Turkey on the product concerned and there are no other restrictions for imports of SWR into Turkey. Finally, as mentioned in recital (20), the product produced and sold on the Turkish domestic market was alike to the product exported by the PRC exporting producer to the Union.

| (31) | It is therefore concluded that Turkey constitutes an appropriate analogue country for the purpose of establishing normal value in accordance with Article 2(7)(a) of the basic Regulation. |
| --- | --- |

(31)

It is therefore concluded that Turkey constitutes an appropriate analogue country for the purpose of establishing normal value in accordance with Article 2(7)(a) of the basic Regulation.

2.1.2.   Normal value

Normal value

| (32) | Pursuant to Article 2(7)(a) of the basic Regulation, normal value was established on the basis of information received from the cooperating producer in the analogue country, i.e. on the basis of the price paid or payable on the domestic market of Turkey by unrelated customers. The information provided by the producer was analysed and these sales were found to be made in the ordinary course of trade and to be representative. |
| --- | --- |

(32)

Pursuant to Article 2(7)(a) of the basic Regulation, normal value was established on the basis of information received from the cooperating producer in the analogue country, i.e. on the basis of the price paid or payable on the domestic market of Turkey by unrelated customers. The information provided by the producer was analysed and these sales were found to be made in the ordinary course of trade and to be representative.

| (33) | As a result, normal value was established as the weighted average domestic sales price to unrelated customers by the cooperating producer in Turkey. |
| --- | --- |

(33)

As a result, normal value was established as the weighted average domestic sales price to unrelated customers by the cooperating producer in Turkey.

2.1.3.   Export price

Export price

| (34) | In the absence of cooperation from PRC producers, in accordance with Article 18 of the basic Regulation, the export price was determined on the basis of publicly available information. Information collected on the basis of Article 14(6) of the basic Regulation was found to be more appropriate for the calculation of the dumping margin than Eurostat as the relevant CN codes cover a broader scope of products than the product concerned, defined in recital (19) above. |
| --- | --- |

(34)

In the absence of cooperation from PRC producers, in accordance with Article 18 of the basic Regulation, the export price was determined on the basis of publicly available information. Information collected on the basis of Article 14(6) of the basic Regulation was found to be more appropriate for the calculation of the dumping margin than Eurostat as the relevant CN codes cover a broader scope of products than the product concerned, defined in recital (19) above.

2.1.4.   Comparison

Comparison

| (35) | For the purpose of ensuring a fair comparison on an ex-factory basis and at the same level of trade between the normal value and the export price, due allowance was made for differences which were found to affect price comparability. These adjustments were made in respect of transportation costs and insurance costs in accordance with Article 2(10) of the basic Regulation. |
| --- | --- |

(35)

For the purpose of ensuring a fair comparison on an ex-factory basis and at the same level of trade between the normal value and the export price, due allowance was made for differences which were found to affect price comparability. These adjustments were made in respect of transportation costs and insurance costs in accordance with Article 2(10) of the basic Regulation.

2.1.5.   Dumping margin

Dumping margin

| (36) | In accordance with Article 2(11) of the basic Regulation, the dumping margin was established on the basis of a comparison of the weighted average normal value with the weighted average export price to the Union. This comparison showed the existence of significant dumping of around 38 %. |
| --- | --- |

(36)

In accordance with Article 2(11) of the basic Regulation, the dumping margin was established on the basis of a comparison of the weighted average normal value with the weighted average export price to the Union. This comparison showed the existence of significant dumping of around 38 %.

2.2.   South Africa

South Africa

| (37) | During the RIP, as recorded in Eurostat, the total import volume of SWR from South Africa amounted to 281 tonnes, representing 0,1 % of the Union market share, i.e. at a de minimis level. The sole known exporting producer represented 100 % of these imports. |
| --- | --- |

(37)

During the RIP, as recorded in Eurostat, the total import volume of SWR from South Africa amounted to 281 tonnes, representing 0,1 % of the Union market share, i.e. at a de minimis level. The sole known exporting producer represented 100 % of these imports.

de minimis

2.2.1.   Normal value

Normal value

| (38) | Pursuant to Article 2(1) of the basic Regulation, normal value was established on the basis of the price paid or payable on the domestic market of South Africa by unrelated customers, since these sales were found to be made in the ordinary course of trade and to be representative. |
| --- | --- |

(38)

Pursuant to Article 2(1) of the basic Regulation, normal value was established on the basis of the price paid or payable on the domestic market of South Africa by unrelated customers, since these sales were found to be made in the ordinary course of trade and to be representative.

2.2.2.   Export price

Export price

| (39) | Since all export sales of the product concerned were made directly to independent customers in the Union, the export price was established in accordance with Article 2(8) of the basic Regulation on the basis of the prices actually paid or payable. |
| --- | --- |

(39)

Since all export sales of the product concerned were made directly to independent customers in the Union, the export price was established in accordance with Article 2(8) of the basic Regulation on the basis of the prices actually paid or payable.

2.2.3.   Comparison

Comparison

| (40) | For the purpose of ensuring a fair comparison at the same level of trade, on an ex-factory basis, between the normal value and the export price, due allowance was made for differences which were claimed and demonstrated to affect price comparability. These adjustments were made in respect of transportation costs, insurance costs and credit costs in accordance with Article 2(10) of the basic Regulation. |
| --- | --- |

(40)

For the purpose of ensuring a fair comparison at the same level of trade, on an ex-factory basis, between the normal value and the export price, due allowance was made for differences which were claimed and demonstrated to affect price comparability. These adjustments were made in respect of transportation costs, insurance costs and credit costs in accordance with Article 2(10) of the basic Regulation.

2.2.4.   Dumping margin

Dumping margin

| (41) | In accordance with Article 2(11) of the basic Regulation, the dumping margin was established on the basis of a comparison of the weighted average normal value with the weighted average export price to the Union, by product type. This comparison showed the existence of dumping amounting to 17 %, which is lower than the dumping margin of 38,6 % found in the original investigation. |
| --- | --- |

(41)

In accordance with Article 2(11) of the basic Regulation, the dumping margin was established on the basis of a comparison of the weighted average normal value with the weighted average export price to the Union, by product type. This comparison showed the existence of dumping amounting to 17 %, which is lower than the dumping margin of 38,6 % found in the original investigation.

2.3.   Ukraine

Ukraine

| (42) | During the RIP, as recorded in Eurostat, the total import volume of SWR from Ukraine amounted to 22 tonnes, representing less than 0,1 % of the Union market share, i.e. at a de minimis level. |
| --- | --- |

(42)

During the RIP, as recorded in Eurostat, the total import volume of SWR from Ukraine amounted to 22 tonnes, representing less than 0,1 % of the Union market share, i.e. at a de minimis level.

de minimis

2.3.1.   Normal value

Normal value

| (43) | Pursuant to Article 18 of the basic Regulation, normal value was established on the basis of the information found in the applicant’s review request, which correspond to price paid or payable on the domestic market of Ukraine by unrelated customers. |
| --- | --- |

(43)

Pursuant to Article 18 of the basic Regulation, normal value was established on the basis of the information found in the applicant’s review request, which correspond to price paid or payable on the domestic market of Ukraine by unrelated customers.

2.3.2.   Export price

Export price

| (44) | In the absence of cooperation from Ukrainian producers, in accordance with Article 18 of the basic Regulation, the export price was determined on the basis of publicly available information. Information collected on the basis of Article 14(6) of the basic Regulation was found to be the most appropriate for the calculation of the dumping margin as this information cover precisely the product concerned defined in recital (19). |
| --- | --- |

(44)

In the absence of cooperation from Ukrainian producers, in accordance with Article 18 of the basic Regulation, the export price was determined on the basis of publicly available information. Information collected on the basis of Article 14(6) of the basic Regulation was found to be the most appropriate for the calculation of the dumping margin as this information cover precisely the product concerned defined in recital (19).

2.3.3.   Comparison

Comparison

| (45) | To ensure a fair comparison the export price was adjusted for ocean freight and insurance in the applicant’s review request in accordance with Article 2(10) of the basic Regulation. As a result, a dumping margin of more than 80 % was established for the RIP. |
| --- | --- |

(45)

To ensure a fair comparison the export price was adjusted for ocean freight and insurance in the applicant’s review request in accordance with Article 2(10) of the basic Regulation. As a result, a dumping margin of more than 80 % was established for the RIP.

3.   Likely developments of imports should measures be repealed

Likely developments of imports should measures be repealed

3.1.   Preliminary remarks

Preliminary remarks

| (46) | None of the 28 known PRC exporting producers cooperated. |
| --- | --- |

(46)

None of the 28 known PRC exporting producers cooperated.

| (47) | The two South African exporting producers named in the request for review replied to the Commission’s inquiries, but only the one with exporting interest to the Union cooperated by filling in a questionnaire. There are no other known producers in South Africa. |
| --- | --- |

(47)

The two South African exporting producers named in the request for review replied to the Commission’s inquiries, but only the one with exporting interest to the Union cooperated by filling in a questionnaire. There are no other known producers in South Africa.

| (48) | As far as Ukraine is concerned, the known exporting producer stopped cooperation as explained in recital (14). No other producers are known in Ukraine. |
| --- | --- |

(48)

As far as Ukraine is concerned, the known exporting producer stopped cooperation as explained in recital (14). No other producers are known in Ukraine.

3.2.   The PRC

The PRC

3.2.1.   Preliminary remarks

Preliminary remarks

| (49) | In the original investigation all PRC companies were made subject to a single anti-dumping duty at the rate of 60,4 %. Import volumes from the PRC decreased significantly, from 11 484 tonnes during the IP of the original investigation (EU-15) to 1 942 tonnes during the RIP of the last investigation (EU-25) but then increased to 4 530 tonnes in the current RIP. It is, however, noted that PRC imports have, since 2001, an increasing trend. The current market share of the PRC is around 2,2 %. |
| --- | --- |

(49)

In the original investigation all PRC companies were made subject to a single anti-dumping duty at the rate of 60,4 %. Import volumes from the PRC decreased significantly, from 11 484 tonnes during the IP of the original investigation (EU-15) to 1 942 tonnes during the RIP of the last investigation (EU-25) but then increased to 4 530 tonnes in the current RIP. It is, however, noted that PRC imports have, since 2001, an increasing trend. The current market share of the PRC is around 2,2 %.

| (50) | In order to establish whether dumping would be likely to continue should the measures be repealed, the pricing behaviour of the exporting producers to other export markets, export prices to the Union, production capacities and circumvention practices were examined. Information relating to the import prices from exporters was determined on the basis of Eurostat, to export volumes and prices on the basis of PRC statistical information and information relating to capacity based on information included in the request. Eurostat data was found to be best suitable for the comparison with PRC statistical information as the comparison was only possible for a broader product scope, as explained in the next recital. |
| --- | --- |

(50)

In order to establish whether dumping would be likely to continue should the measures be repealed, the pricing behaviour of the exporting producers to other export markets, export prices to the Union, production capacities and circumvention practices were examined. Information relating to the import prices from exporters was determined on the basis of Eurostat, to export volumes and prices on the basis of PRC statistical information and information relating to capacity based on information included in the request. Eurostat data was found to be best suitable for the comparison with PRC statistical information as the comparison was only possible for a broader product scope, as explained in the next recital.

3.2.2.   Relationship between export prices to third countries and export prices to the Union

Relationship between export prices to third countries and export prices to the Union

| (51) | The statistical information available from the PRC public databases covers a broader product scope than the product concerned. Therefore no meaningful analysis of quantities exported to other markets could be made on the basis of this information. The price analysis for which the PRC database could be used is based on reasonable estimations given the similar characteristics of the other products possibly included in the analysis. |
| --- | --- |

(51)

The statistical information available from the PRC public databases covers a broader product scope than the product concerned. Therefore no meaningful analysis of quantities exported to other markets could be made on the basis of this information. The price analysis for which the PRC database could be used is based on reasonable estimations given the similar characteristics of the other products possibly included in the analysis.

| (52) | On the basis of the available information, as explained in the above recital, it was found that export prices from the PRC to other export markets were, on average, significantly below the export prices to the Union (by around 30 % not taking into account anti-dumping duties paid). Since, as concluded in recital (36), export sales from the PRC to the Union were made at dumped levels, this indicated that exports to other third country markets were likely dumped at even higher levels than the export sales to the Union. It was also considered that the export price level to other third countries can be seen as an indicator as to the likely price level for export sales to the Union should measures be repealed. On this basis, and given the low price levels to third country markets, it was concluded that there is a considerable margin to reduce export prices to the Union, which as a consequence would also increase the dumping. |
| --- | --- |

(52)

On the basis of the available information, as explained in the above recital, it was found that export prices from the PRC to other export markets were, on average, significantly below the export prices to the Union (by around 30 % not taking into account anti-dumping duties paid). Since, as concluded in recital (36), export sales from the PRC to the Union were made at dumped levels, this indicated that exports to other third country markets were likely dumped at even higher levels than the export sales to the Union. It was also considered that the export price level to other third countries can be seen as an indicator as to the likely price level for export sales to the Union should measures be repealed. On this basis, and given the low price levels to third country markets, it was concluded that there is a considerable margin to reduce export prices to the Union, which as a consequence would also increase the dumping.

3.2.3.   Relationship between export prices to third countries and the price level in the Union

Relationship between export prices to third countries and the price level in the Union

| (53) | It was also found that the price level of sales by the UI in the Union was on average considerably higher than the export price level of the PRC exporter’s prices to other third country markets. The fact that the generally prevailing price level for the product concerned in the Union market makes the Union market a very attractive one applies also for the PRC. The higher price level on the Union market is an incentive for increasing exports to the Union. |
| --- | --- |

(53)

It was also found that the price level of sales by the UI in the Union was on average considerably higher than the export price level of the PRC exporter’s prices to other third country markets. The fact that the generally prevailing price level for the product concerned in the Union market makes the Union market a very attractive one applies also for the PRC. The higher price level on the Union market is an incentive for increasing exports to the Union.

3.2.4.   Dumping margin

Dumping margin

| (54) | As concluded in recital (36), export sales from the PRC to the Union were made at significantly dumped levels based on the normal value of the analogue country. In the absence of measures, there is no reason to consider that imports would not be made at similar dumped prices and in higher quantities. |
| --- | --- |

(54)

As concluded in recital (36), export sales from the PRC to the Union were made at significantly dumped levels based on the normal value of the analogue country. In the absence of measures, there is no reason to consider that imports would not be made at similar dumped prices and in higher quantities.

3.2.5.   Unused capacity and stocks

Unused capacity and stocks

| (55) | According to the review request and as cross-checked on the basis of publicly available information (i.e. information published by the companies on their websites), capacities of all exporting producers in the PRC were estimated at 1 355 000 tonnes. The applicant’s estimation of the capacity utilisation of PRC producers is around 63 % giving an unused capacity of more than 500 000 tonnes. The applicant also provided information about further production facilities that are being set up and the size of the domestic market. PRC producers thus have significant spare capacities largely exceeding not only the export quantity to the Union during the RIP but the total Union consumption. Thus, the capacity to vastly increase export quantities to the Union exists, in particular, because there are no indications that third country markets or the domestic market could absorb any additional production in such quantities. In this regard it should be noted that it is very unlikely that the domestic market in the PRC, due to the presence of a considerable number of competing producers, would be able to absorb significant volumes of these spare capacities. |
| --- | --- |

(55)

According to the review request and as cross-checked on the basis of publicly available information (i.e. information published by the companies on their websites), capacities of all exporting producers in the PRC were estimated at 1 355 000 tonnes. The applicant’s estimation of the capacity utilisation of PRC producers is around 63 % giving an unused capacity of more than 500 000 tonnes. The applicant also provided information about further production facilities that are being set up and the size of the domestic market. PRC producers thus have significant spare capacities largely exceeding not only the export quantity to the Union during the RIP but the total Union consumption. Thus, the capacity to vastly increase export quantities to the Union exists, in particular, because there are no indications that third country markets or the domestic market could absorb any additional production in such quantities. In this regard it should be noted that it is very unlikely that the domestic market in the PRC, due to the presence of a considerable number of competing producers, would be able to absorb significant volumes of these spare capacities.

3.2.6.   Circumvention practices

Circumvention practices

| (56) | The measures in force on imports of the product concerned from the PRC were found to have been circumvented by means of imports transhipped via Morocco in 2004 and via the Republic of Korea in 2010. This indicates the clear interest in the Union market of sellers of PRC SWR and their unwillingness to compete on the Union market at non-dumped levels. This is considered as a further indication that PRC exports would likely increase in volume and enter the Union market at dumped prices, should measures be repealed. |
| --- | --- |

(56)

The measures in force on imports of the product concerned from the PRC were found to have been circumvented by means of imports transhipped via Morocco in 2004 and via the Republic of Korea in 2010. This indicates the clear interest in the Union market of sellers of PRC SWR and their unwillingness to compete on the Union market at non-dumped levels. This is considered as a further indication that PRC exports would likely increase in volume and enter the Union market at dumped prices, should measures be repealed.

3.3.   South Africa

South Africa

3.3.1.   Preliminary remarks

Preliminary remarks

| (57) | There are two known producers in South Africa. As explained above, one exporting producer cooperated in this review investigation. |
| --- | --- |

(57)

There are two known producers in South Africa. As explained above, one exporting producer cooperated in this review investigation.

| (58) | The other known producer showed no interest in exporting to the Union stating its production capacities are fully utilised and sold on the domestic South African market. |
| --- | --- |

(58)

The other known producer showed no interest in exporting to the Union stating its production capacities are fully utilised and sold on the domestic South African market.

| (59) | Imports from South Africa dropped considerably since the imposition of the original measures. The market share of imports from South Africa (0,1 %) was below the de minimis threshold during the RIP, amounting in total to 281 tonnes. Moreover, most of these imports were eventually destined for offshore use, which has developed considerably since the previous investigation and were not customs cleared in the EU. Only minor quantities of the product concerned were released for free circulation in the EU. |
| --- | --- |

(59)

Imports from South Africa dropped considerably since the imposition of the original measures. The market share of imports from South Africa (0,1 %) was below the de minimis threshold during the RIP, amounting in total to 281 tonnes. Moreover, most of these imports were eventually destined for offshore use, which has developed considerably since the previous investigation and were not customs cleared in the EU. Only minor quantities of the product concerned were released for free circulation in the EU.

de minimis

| (60) | In order to establish whether dumping would continue should measures be repealed, information provided by the cooperating exporter relating to export volumes and prices to the Union and to third countries, unused capacity and stocks and the situation of the South African domestic market were examined. |
| --- | --- |

(60)

In order to establish whether dumping would continue should measures be repealed, information provided by the cooperating exporter relating to export volumes and prices to the Union and to third countries, unused capacity and stocks and the situation of the South African domestic market were examined.

3.3.2.   Relationship between export prices to third countries and export prices to the Union

Relationship between export prices to third countries and export prices to the Union

| (61) | The cooperating exporter of the product concerned provided information regarding volumes and prices in export markets other than the Union. The exporting producer sells a considerable part of its production on exports markets even though export volumes decreased during the period under consideration. The company’s export activity is focused mostly on two specific segments of the market: ropes for deep shaft mining and offshore drilling related applications. |
| --- | --- |

(61)

The cooperating exporter of the product concerned provided information regarding volumes and prices in export markets other than the Union. The exporting producer sells a considerable part of its production on exports markets even though export volumes decreased during the period under consideration. The company’s export activity is focused mostly on two specific segments of the market: ropes for deep shaft mining and offshore drilling related applications.

| (62) | The company’s export prices to third countries compared to the export prices to the Union including the applicable anti-dumping duty were overall significantly higher in all years in the period under consideration (30 % to 70 %). The price advantage reached by the exporter on other third country markets in comparison to prices on the Union market suggests that the exporter would not enter the Union market with significant quantities in the future, should measures be repealed. In this regard, it was also considered that, as explained in recital (61) above, the export activities of the company are focused on products that are not primarily demanded on the Union market. |
| --- | --- |

(62)

The company’s export prices to third countries compared to the export prices to the Union including the applicable anti-dumping duty were overall significantly higher in all years in the period under consideration (30 % to 70 %). The price advantage reached by the exporter on other third country markets in comparison to prices on the Union market suggests that the exporter would not enter the Union market with significant quantities in the future, should measures be repealed. In this regard, it was also considered that, as explained in recital (61) above, the export activities of the company are focused on products that are not primarily demanded on the Union market.

3.3.3.   Unused capacity and stocks

Unused capacity and stocks

| (63) | Since the last investigation, the cooperating exporting producer kept stocks at a stable level. The capacity utilisation (around 70-75 %) was also at customary levels given the technical constraints in the production process. The maximum available spare capacity is in the range 1 500-3 500 tonnes. The exporting producer does not plan to expand its production capacities by significant amounts. The capacity to increase export quantities to the Union seems very limited in view of the fact that third country markets or the domestic market could absorb any additional production. |
| --- | --- |

(63)

Since the last investigation, the cooperating exporting producer kept stocks at a stable level. The capacity utilisation (around 70-75 %) was also at customary levels given the technical constraints in the production process. The maximum available spare capacity is in the range 1 500-3 500 tonnes. The exporting producer does not plan to expand its production capacities by significant amounts. The capacity to increase export quantities to the Union seems very limited in view of the fact that third country markets or the domestic market could absorb any additional production.

| (64) | It is furthermore noted that production goes mainly to domestic market where high profits are achieved, therefore the company has no interest to export significant quantities to the Union. |
| --- | --- |

(64)

It is furthermore noted that production goes mainly to domestic market where high profits are achieved, therefore the company has no interest to export significant quantities to the Union.

3.4.   Ukraine

Ukraine

3.4.1.   Preliminary remarks

Preliminary remarks

| (65) | Given the absence of cooperation from the known Ukrainian exporting producer, as explained in recital (14) above, findings were based on facts available, in accordance with Article 18 of the basic Regulation. Since little information is known about the Ukrainian industry, the following conclusions rely on the information provided in the applicant’s review request and publicly available trade statistics. It is noted that there are no other known producers in Ukraine and that the following considerations regarding in particular production capacities, relate to the known exporting producer. |
| --- | --- |

(65)

Given the absence of cooperation from the known Ukrainian exporting producer, as explained in recital (14) above, findings were based on facts available, in accordance with Article 18 of the basic Regulation. Since little information is known about the Ukrainian industry, the following conclusions rely on the information provided in the applicant’s review request and publicly available trade statistics. It is noted that there are no other known producers in Ukraine and that the following considerations regarding in particular production capacities, relate to the known exporting producer.

| (66) | In order to establish whether dumping would be likely to continue should measures be repealed, the export prices to third countries and to the Union, unused capacities and circumvention practices were examined. |
| --- | --- |

(66)

In order to establish whether dumping would be likely to continue should measures be repealed, the export prices to third countries and to the Union, unused capacities and circumvention practices were examined.

3.4.2.   Relationship between export prices to third countries and export prices to the Union

Relationship between export prices to third countries and export prices to the Union

| (67) | In the absence of any other more reliable information, the information provided for in the request with regard to other export markets, based on publicly available statistics, has been taken into account. An analysis of the figures available showed that the average export prices to these countries were significantly below the average export prices to the Union. As already explained above, in the case of the PRC and South Africa, export prices to other third countries were considered as an indicator for the likely price level for export sales to the Union, should measures be repealed. On this basis, it was concluded that there is a considerable margin to reduce export prices to the Union, and very likely at dumped levels. |
| --- | --- |

(67)

In the absence of any other more reliable information, the information provided for in the request with regard to other export markets, based on publicly available statistics, has been taken into account. An analysis of the figures available showed that the average export prices to these countries were significantly below the average export prices to the Union. As already explained above, in the case of the PRC and South Africa, export prices to other third countries were considered as an indicator for the likely price level for export sales to the Union, should measures be repealed. On this basis, it was concluded that there is a considerable margin to reduce export prices to the Union, and very likely at dumped levels.

3.4.3.   Unused capacity

Unused capacity

| (68) | In recent years the two previously known exporting producers merged their activities. As a result, the production capacity as established in the last investigation was downsized. According to the evidence available in the request and as stated by the known exporting producer, the estimated production capacity in Ukraine is in the range 35 000-40 000 tonnes, of which around 70 % is used for actual production. The spare capacity, which is in the range 10 500-12 000 tonnes, thus indicates that the capacity to significantly increase export quantities to the Union does exist. The apparent consumption in Ukraine calculated on the basis of the known production and statistical information about imports and exports indicates that the domestic market cannot absorb any additional capacities. Ukraine thus remains the country from where the redirection of the unused capacities to the Union market is the most imminent from all countries concerned, in particular because there are no indications that third country markets or the domestic market could absorb any additional production. |
| --- | --- |

(68)

In recent years the two previously known exporting producers merged their activities. As a result, the production capacity as established in the last investigation was downsized. According to the evidence available in the request and as stated by the known exporting producer, the estimated production capacity in Ukraine is in the range 35 000-40 000 tonnes, of which around 70 % is used for actual production. The spare capacity, which is in the range 10 500-12 000 tonnes, thus indicates that the capacity to significantly increase export quantities to the Union does exist. The apparent consumption in Ukraine calculated on the basis of the known production and statistical information about imports and exports indicates that the domestic market cannot absorb any additional capacities. Ukraine thus remains the country from where the redirection of the unused capacities to the Union market is the most imminent from all countries concerned, in particular because there are no indications that third country markets or the domestic market could absorb any additional production.

3.4.4.   Circumvention practices

Circumvention practices

| (69) | Following the imposition of the existing measures on imports of SWR from Ukraine, it was found that these measures were being circumvented by imports of SWR from Moldova. It was considered that the circumvention practice detected was an additional factor indicating the interest in entering the Union market and the inability to compete on the Union market at non-dumped levels. |
| --- | --- |

(69)

Following the imposition of the existing measures on imports of SWR from Ukraine, it was found that these measures were being circumvented by imports of SWR from Moldova. It was considered that the circumvention practice detected was an additional factor indicating the interest in entering the Union market and the inability to compete on the Union market at non-dumped levels.

3.5.   Conclusion

Conclusion

| (70) | Continuation of significant dumping was found for the PRC and Ukraine and of a reduced level for South Africa, albeit import volumes from South Africa and Ukraine were at low levels. |
| --- | --- |

(70)

Continuation of significant dumping was found for the PRC and Ukraine and of a reduced level for South Africa, albeit import volumes from South Africa and Ukraine were at low levels.

| (71) | For the examination as to whether it would be likely that dumping would continue should the anti-dumping measures be repealed, spare capacities and unused stocks as well as pricing and export strategies in different markets were analysed. This examination showed that there were important spare capacities and accumulated stocks in the PRC and to a lesser degree in Ukraine. No significant spare capacities or abnormal stocks were observed in South Africa. It was further found that export prices to other third countries were generally lower than those to the Union market in case of the PRC and Ukraine and that the Union therefore remained an attractive market for the exporting producers from these countries. South African exports to other countries were however at significantly higher levels than exports to the Union and appeared not to be at dumped prices. It was therefore concluded that exports from the PRC and Ukraine to third countries would very likely be redirected to the Union should the access to the Union market be without anti-dumping measures. The available spare production capacities would also likely lead to increased imports from these countries. An analysis of the pricing strategies revealed furthermore that these exports from Ukraine and the PRC would most likely be made at dumped prices. These conclusions were reinforced by the fact that for both the PRC and Ukraine the existing measures were found to have been circumvented by imports via other countries which indicated that exporting countries were not able to compete in the Union market at fair prices. Conversely, the South African producer was considered able to compete with other producers, including the Union producers, on other third country markets at fair prices. Considering the above, it is established for the PRC and Ukraine that dumping would likely continue in significant quantities, should measures be allowed to expire. On the contrary, taking into account the decreased level of dumping since the original investigation, the fact that exports to other countries were made at significantly higher prices than to the EU and the predictably low demand for South African products, it is considered that the continuation of dumped imports in significant quantities would not be likely with regard to imports from South Africa. |
| --- | --- |

(71)

For the examination as to whether it would be likely that dumping would continue should the anti-dumping measures be repealed, spare capacities and unused stocks as well as pricing and export strategies in different markets were analysed. This examination showed that there were important spare capacities and accumulated stocks in the PRC and to a lesser degree in Ukraine. No significant spare capacities or abnormal stocks were observed in South Africa. It was further found that export prices to other third countries were generally lower than those to the Union market in case of the PRC and Ukraine and that the Union therefore remained an attractive market for the exporting producers from these countries. South African exports to other countries were however at significantly higher levels than exports to the Union and appeared not to be at dumped prices. It was therefore concluded that exports from the PRC and Ukraine to third countries would very likely be redirected to the Union should the access to the Union market be without anti-dumping measures. The available spare production capacities would also likely lead to increased imports from these countries. An analysis of the pricing strategies revealed furthermore that these exports from Ukraine and the PRC would most likely be made at dumped prices. These conclusions were reinforced by the fact that for both the PRC and Ukraine the existing measures were found to have been circumvented by imports via other countries which indicated that exporting countries were not able to compete in the Union market at fair prices. Conversely, the South African producer was considered able to compete with other producers, including the Union producers, on other third country markets at fair prices. Considering the above, it is established for the PRC and Ukraine that dumping would likely continue in significant quantities, should measures be allowed to expire. On the contrary, taking into account the decreased level of dumping since the original investigation, the fact that exports to other countries were made at significantly higher prices than to the EU and the predictably low demand for South African products, it is considered that the continuation of dumped imports in significant quantities would not be likely with regard to imports from South Africa.

| (72) | The Ukrainian Government commented on the above findings arguing that the allegation that the repeal of anti-dumping measures would lead to a switch by the Ukrainian producer to the Union market is exaggerated and unreasonable. To support its claim the Government argued that the measures in force resulted in the loss of customer contacts in the EU and thus the end of exports to the Union and that Ukrainian exports are now focused on the CIS and Asian markets instead. The Government however failed to comment on the attractiveness of the Union market resulting from the considerable price difference on these markets as mentioned in recital (67) above, and thus missed the point that there is indeed a likelihood that Ukrainian exports would be redirected to the Union should measures be allowed to expire. |
| --- | --- |

(72)

The Ukrainian Government commented on the above findings arguing that the allegation that the repeal of anti-dumping measures would lead to a switch by the Ukrainian producer to the Union market is exaggerated and unreasonable. To support its claim the Government argued that the measures in force resulted in the loss of customer contacts in the EU and thus the end of exports to the Union and that Ukrainian exports are now focused on the CIS and Asian markets instead. The Government however failed to comment on the attractiveness of the Union market resulting from the considerable price difference on these markets as mentioned in recital (67) above, and thus missed the point that there is indeed a likelihood that Ukrainian exports would be redirected to the Union should measures be allowed to expire.

| (73) | After disclosure, the applicant argued that the decreasing volume of exports by the South African producer to other markets is predicted to lead to increased spare capacities that will not be absorbed by the domestic market and thus will lead to increasing imports to the Union. These arguments were however not substantiated by evidence. On the contrary, it was observed that the cooperating exporter’s falling export sales during the period considered were mitigated by domestic sales that decreased to a lesser extent during the same period. Also, the overall sales volume of the company increased between 2009 and the IP. Thus there is no indication that the applicant’s argumentation could be justified. |
| --- | --- |

(73)

After disclosure, the applicant argued that the decreasing volume of exports by the South African producer to other markets is predicted to lead to increased spare capacities that will not be absorbed by the domestic market and thus will lead to increasing imports to the Union. These arguments were however not substantiated by evidence. On the contrary, it was observed that the cooperating exporter’s falling export sales during the period considered were mitigated by domestic sales that decreased to a lesser extent during the same period. Also, the overall sales volume of the company increased between 2009 and the IP. Thus there is no indication that the applicant’s argumentation could be justified.

| (74) | The applicant further criticised the Commission for not taking into account the non-cooperation of the other South African producer and that the fact that this company did not export in the past is not a reason that it will not export in the future. In this respect it is noted that over the period considered this company did not export to the Union. Anti-dumping measures do not serve as an instrument to prohibit legitimate imports to the Union. This claim thus had to be rejected. |
| --- | --- |

(74)

The applicant further criticised the Commission for not taking into account the non-cooperation of the other South African producer and that the fact that this company did not export in the past is not a reason that it will not export in the future. In this respect it is noted that over the period considered this company did not export to the Union. Anti-dumping measures do not serve as an instrument to prohibit legitimate imports to the Union. This claim thus had to be rejected.

D.   UNION PRODUCTION AND UNION INDUSTRY

UNION PRODUCTION AND UNION INDUSTRY

| (75) | Within the Union, SWR are manufactured by over 25 producers/producer groups, which constitute the Union industry within the meaning of Articles 4(1) and 5(4) of the basic Regulation. |
| --- | --- |

(75)

Within the Union, SWR are manufactured by over 25 producers/producer groups, which constitute the Union industry within the meaning of Articles 4(1) and 5(4) of the basic Regulation.

| (76) | As indicated under recital (10), a sample consisting of 3 producers/producer groups companies was selected out of the following 20 Union producers which submitted the required information:






  — | BRIDON Group composed of Bridon International Ltd (United Kingdom) and Bridon International GmbH (Germany), |
| --- | --- | --- |

(76)

As indicated under recital (10), a sample consisting of 3 producers/producer groups companies was selected out of the following 20 Union producers which submitted the required information:

—

BRIDON Group composed of Bridon International Ltd (United Kingdom) and Bridon International GmbH (Germany),

| — | CASAR Drahtseilwerk Saar GmbH (Germany), |
| --- | --- |

—

CASAR Drahtseilwerk Saar GmbH (Germany),

| — | Pfeifer Drako Drahtseilwerk GmbH (Germany), |
| --- | --- |

—

Pfeifer Drako Drahtseilwerk GmbH (Germany),

| — | Drahtseilwerk Hemer GmbH and Co. KG (Germany), |
| --- | --- |

—

Drahtseilwerk Hemer GmbH and Co. KG (Germany),

| — | Westfälische Drahtindustrie GmbH (Germany), |
| --- | --- |

—

Westfälische Drahtindustrie GmbH (Germany),

| — | Teufelberger Seil GmbH (Germany), |
| --- | --- |

—

Teufelberger Seil GmbH (Germany),

| — | ZBD Group A.S. (Czech Republic), |
| --- | --- |

—

ZBD Group A.S. (Czech Republic),

| — | Cables y Alambres especiales, SA (Spain), |
| --- | --- |

—

Cables y Alambres especiales, SA (Spain),

| — | Manuel Rodrigues de Oliveira Sa & Filhos, SA (Portugal), |
| --- | --- |

—

Manuel Rodrigues de Oliveira Sa & Filhos, SA (Portugal),

| — | D. Koronakis SA (Greece), |
| --- | --- |

—

D. Koronakis SA (Greece),

| — | N. Leventeris SA (Greece), |
| --- | --- |

—

N. Leventeris SA (Greece),

| — | Drumet SA (Poland), |
| --- | --- |

—

Drumet SA (Poland),

| — | Metizi JSC (Bulgaria), |
| --- | --- |

—

Metizi JSC (Bulgaria),

| — | Arcelor Mittal Wire France (France), |
| --- | --- |

—

Arcelor Mittal Wire France (France),

| — | Brunton Shaw UK Limited (United Kingdom), |
| --- | --- |

—

Brunton Shaw UK Limited (United Kingdom),

| — | Sirme Si Cabluri S.A./CORD S.A. (Romania), |
| --- | --- |

—

Sirme Si Cabluri S.A./CORD S.A. (Romania),

| — | Redaelli Tecna SpA (Italy), |
| --- | --- |

—

Redaelli Tecna SpA (Italy),

| — | Remer SRL (Italy), |
| --- | --- |

—

Remer SRL (Italy),

| — | Metal Press SRL (Italy), |
| --- | --- |

—

Metal Press SRL (Italy),

| — | Randers Reb International A/S (Denmark). |
| --- | --- |

—

Randers Reb International A/S (Denmark).

| (77) | It is noted that the 3 sampled Union producers accounted for 40 % of the total Union production during the RIP, whilst the above 20 Union producers accounted for 96 % of the total Union production during the RIP which is considered to be representative of the entire Union production. |
| --- | --- |

(77)

It is noted that the 3 sampled Union producers accounted for 40 % of the total Union production during the RIP, whilst the above 20 Union producers accounted for 96 % of the total Union production during the RIP which is considered to be representative of the entire Union production.

E.   SITUATION ON THE UNION MARKET

SITUATION ON THE UNION MARKET

1.   Consumption in the Union market

Consumption in the Union market

| (78) | Union consumption was established on the basis of the sales volumes of the UI on the Union market, and Eurostat data for all EU imports. |
| --- | --- |

(78)

Union consumption was established on the basis of the sales volumes of the UI on the Union market, and Eurostat data for all EU imports.

| (79) | Union consumption decreased by 21 % from 255 985 tonnes to 203 331 tonnes between 2007 and the RIP. Specifically, after increasing slightly by 1 % in 2008, it dropped significantly by 22 percentage points in 2009 as a consequence of the economic downturn and remained at a similar level in the RIP. | 2007 | 2008 | 2009 | RIP |
| --- | --- | --- | --- | --- | --- |
| Union consumption
  (in tonnes) | 255 986 | 257 652 | 201 975 | 203 331 |
| index | 100 | 101 | 79 | 79 |

(79)

Union consumption decreased by 21 % from 255 985 tonnes to 203 331 tonnes between 2007 and the RIP. Specifically, after increasing slightly by 1 % in 2008, it dropped significantly by 22 percentage points in 2009 as a consequence of the economic downturn and remained at a similar level in the RIP.

2007

2008

2009

RIP

Union consumption

(in tonnes)

255 986

257 652

201 975

203 331

index

index

100

101

79

79

2.   Imports from the countries concerned

Imports from the countries concerned

2.1.   Cumulation

Cumulation

| (80) | In the previous investigations, imports of SWR originating in the PRC, South Africa and Ukraine were assessed cumulatively in accordance with Article 3(4) of the basic Regulation. It was examined whether a cumulative assessment was also appropriate in the current investigation. |
| --- | --- |

(80)

In the previous investigations, imports of SWR originating in the PRC, South Africa and Ukraine were assessed cumulatively in accordance with Article 3(4) of the basic Regulation. It was examined whether a cumulative assessment was also appropriate in the current investigation.

| (81) | In this respect, it was found that the margin of dumping established in relation to the imports from each country was more than de minimis. As regards the quantities, a prospective analysis of the likely export volumes by each country, should measures be repealed, was performed. It revealed that imports from the PRC and Ukraine, unlike South Africa, would be likely to increase to levels significantly above those reached in the RIP and certainly exceed the negligibility threshold, if measures were repealed. As to South Africa, it was found that the capacity to increase export quantities to the Union was very limited in view of the low spare capacity and the fact that third country markets or the domestic market could absorb additional production, if any. |
| --- | --- |

(81)

In this respect, it was found that the margin of dumping established in relation to the imports from each country was more than de minimis. As regards the quantities, a prospective analysis of the likely export volumes by each country, should measures be repealed, was performed. It revealed that imports from the PRC and Ukraine, unlike South Africa, would be likely to increase to levels significantly above those reached in the RIP and certainly exceed the negligibility threshold, if measures were repealed. As to South Africa, it was found that the capacity to increase export quantities to the Union was very limited in view of the low spare capacity and the fact that third country markets or the domestic market could absorb additional production, if any.

de minimis

| (82) | With regard to the conditions of competition between the imported products, it was found that imports from South Africa were not directly competing with imports from the other two countries. In this regard, the prices of the product types imported from South Africa were considerably higher, as shown in recitals (87) and (91) below, than the imports from the other two countries. Indeed, these higher prices led to the absence of price undercutting by imports from South Africa contrary to the finding of significant price undercutting by imports from the other two countries. |
| --- | --- |

(82)

With regard to the conditions of competition between the imported products, it was found that imports from South Africa were not directly competing with imports from the other two countries. In this regard, the prices of the product types imported from South Africa were considerably higher, as shown in recitals (87) and (91) below, than the imports from the other two countries. Indeed, these higher prices led to the absence of price undercutting by imports from South Africa contrary to the finding of significant price undercutting by imports from the other two countries.

| (83) | Regarding imports from the three countries concerned, the investigation has found that the imported SWR from these countries were alike in their basic physical and technical characteristics. Furthermore, the various types of imported SWR were interchangeable with types produced in the Union and they were marketed in the Union during the same period. In light of the above, it was considered that the imported SWR originating in the countries concerned competed with the SWR produced in the Union. |
| --- | --- |

(83)

Regarding imports from the three countries concerned, the investigation has found that the imported SWR from these countries were alike in their basic physical and technical characteristics. Furthermore, the various types of imported SWR were interchangeable with types produced in the Union and they were marketed in the Union during the same period. In light of the above, it was considered that the imported SWR originating in the countries concerned competed with the SWR produced in the Union.

| (84) | On the basis of the above, it was therefore considered that the criteria set out in Article 3(4) of the basic Regulation were met with regard to the PRC and Ukraine. Imports from these two countries were therefore examined cumulatively. Since the criteria set in Article 3(4), and in particular the conditions of competition between imported products thereof, were not met with regard to South Africa, imports originating in this country were examined individually. |
| --- | --- |

(84)

On the basis of the above, it was therefore considered that the criteria set out in Article 3(4) of the basic Regulation were met with regard to the PRC and Ukraine. Imports from these two countries were therefore examined cumulatively. Since the criteria set in Article 3(4), and in particular the conditions of competition between imported products thereof, were not met with regard to South Africa, imports originating in this country were examined individually.

2.2.   Imports from the PRC and Ukraine

Imports from the PRC and Ukraine

2.2.1.   Volume, market share and prices of imports

Volume, market share and prices of imports

| (85) | According to Eurostat data, the volume of imports of the product concerned originating in the PRC and Ukraine decreased by 54 % during the period considered. A considerable drop by 43 percentage points was observed in 2009 then followed by a further decrease by 13 percentage points in the RIP. |
| --- | --- |

(85)

According to Eurostat data, the volume of imports of the product concerned originating in the PRC and Ukraine decreased by 54 % during the period considered. A considerable drop by 43 percentage points was observed in 2009 then followed by a further decrease by 13 percentage points in the RIP.

| (86) | The market share of PRC and Ukrainian imports decreased from 3,8 % to 2,2 % during the period considered. |
| --- | --- |

(86)

The market share of PRC and Ukrainian imports decreased from 3,8 % to 2,2 % during the period considered.

| (87) | As far as import prices are concerned, they increased by 29 % over the period considered. After increasing by 11 % in 2008, they increased further in 2009 and remained stable in the RIP. | 2007 | 2008 | 2009 | RIP |
| --- | --- | --- | --- | --- | --- |
| Import
  (in tonnes) | 9 844 | 10 081 | 5 830 | 4 553 |
| index | 100 | 102 | 59 | 46 |
| Market share (%) | 3,8 | 3,9 | 2,9 | 2,2 |
| index | 100 | 102 | 75 | 58 |
| Price of import | 1 073 | 1 195 | 1 394 | 1 388 |
| index | 100 | 111 | 130 | 129 |

(87)

As far as import prices are concerned, they increased by 29 % over the period considered. After increasing by 11 % in 2008, they increased further in 2009 and remained stable in the RIP.

2007

2008

2009

RIP

Import

(in tonnes)

9 844

10 081

5 830

4 553

index

index

100

102

59

46

Market share (%)

3,8

3,9

2,9

2,2

index

index

100

102

75

58

Price of import

1 073

1 195

1 394

1 388

index

index

100

111

130

129

2.2.2.   Price undercutting

Price undercutting

| (88) | In view of the absence of cooperation by the PRC and Ukrainian exporting producers, price undercutting had to be established on import statistics by CN code-using information collected on the basis of Article 14(6) of the basic Regulation. In the RIP, the undercutting margin for imports of SWR originating in the PRC and Ukraine ranged, anti-dumping duty excluded, from 47,4 % to 58,2 %. |
| --- | --- |

(88)

In view of the absence of cooperation by the PRC and Ukrainian exporting producers, price undercutting had to be established on import statistics by CN code-using information collected on the basis of Article 14(6) of the basic Regulation. In the RIP, the undercutting margin for imports of SWR originating in the PRC and Ukraine ranged, anti-dumping duty excluded, from 47,4 % to 58,2 %.

2.3.   Imports from South Africa

Imports from South Africa

2.3.1.   Volume, market share and prices of imports from South Africa

Volume, market share and prices of imports from South Africa

| (89) | According to Eurostat data, the volume of imports of the product concerned originating in South Africa decreased by 77 % during the period considered. A considerable drop by 94 percentage points was observed in 2009 then followed by a small increase of 17 percentage points in the RIP. |
| --- | --- |

(89)

According to Eurostat data, the volume of imports of the product concerned originating in South Africa decreased by 77 % during the period considered. A considerable drop by 94 percentage points was observed in 2009 then followed by a small increase of 17 percentage points in the RIP.

| (90) | The market share of South African imports has decreased from 0,5 % to 0,1 % during the period considered. |
| --- | --- |

(90)

The market share of South African imports has decreased from 0,5 % to 0,1 % during the period considered.

| (91) | As far as import prices are concerned, they have increased steadily by 52 % over the period considered. | 2007 | 2008 | 2009 | RIP |
| --- | --- | --- | --- | --- | --- |
| Import
  (in tonnes) | 1 229 | 846 | 73 | 281 |
| index | 100 | 69 | 6 | 23 |
| Market share (%) | 0,5 | 0,3 | 0,0 | 0,1 |
| index | 100 | 68 | 7 | 29 |
| Price of import | 1 504 | 1 929 | 2 217 | 2 280 |
| index | 100 | 128 | 147 | 152 |

(91)

As far as import prices are concerned, they have increased steadily by 52 % over the period considered.

2007

2008

2009

RIP

Import

(in tonnes)

1 229

846

73

281

index

index

100

69

6

23

Market share (%)

0,5

0,3

0,0

0,1

index

index

100

68

7

29

Price of import

1 504

1 929

2 217

2 280

index

index

100

128

147

152

2.3.2.   Price undercutting

Price undercutting

| (92) | Price undercutting was established using the export prices of the cooperating South African producer, without anti-dumping duty, and was found to be negative. In view of the absence of any other exporting producer in South Africa, this conclusion is also valid for the country as a whole. |
| --- | --- |

(92)

Price undercutting was established using the export prices of the cooperating South African producer, without anti-dumping duty, and was found to be negative. In view of the absence of any other exporting producer in South Africa, this conclusion is also valid for the country as a whole.

3.   Imports from countries to which the measures were extended

Imports from countries to which the measures were extended

3.1.   Republic of Korea

Republic of Korea

| (93) | As mentioned in recital (3) above, it was found that circumvention of the original measures concerning the PRC took place via the Republic of Korea (South Korea). Consequently, the anti-dumping duty imposed on imports originating in the PRC was extended to imports of the same SWR consigned from South Korea, with the exception of those produced by 11 genuine South Korean producers. |
| --- | --- |

(93)

As mentioned in recital (3) above, it was found that circumvention of the original measures concerning the PRC took place via the Republic of Korea (South Korea). Consequently, the anti-dumping duty imposed on imports originating in the PRC was extended to imports of the same SWR consigned from South Korea, with the exception of those produced by 11 genuine South Korean producers.

| (94) | Following the anti-circumvention investigation and the extension of the anti-dumping duty to imports consigned from South Korea, imports decreased significantly and the market share decreased from 18,7 % in 2007 to 12,8 % in the RIP. This percentage appears to correspond to the share of genuine Korean exporting producers which were granted each an exemption. |
| --- | --- |

(94)

Following the anti-circumvention investigation and the extension of the anti-dumping duty to imports consigned from South Korea, imports decreased significantly and the market share decreased from 18,7 % in 2007 to 12,8 % in the RIP. This percentage appears to correspond to the share of genuine Korean exporting producers which were granted each an exemption.

3.2.   Moldova

Moldova

| (95) | Imports originating in or consigned from Moldova were found to be close to zero during the period considered. Hence, no further analysis was deemed necessary. |
| --- | --- |

(95)

Imports originating in or consigned from Moldova were found to be close to zero during the period considered. Hence, no further analysis was deemed necessary.

3.3.   Morocco

Morocco

| (96) | Imports originating in or consigned from Morocco declined by 51 % during the period considered. Their market share represented less than 0,5 % during the period considered. |
| --- | --- |

(96)

Imports originating in or consigned from Morocco declined by 51 % during the period considered. Their market share represented less than 0,5 % during the period considered.

4.   Other country concerned by anti-dumping measures

Other country concerned by anti-dumping measures

| (97) | According to Eurostat data, the volume of imports of certain iron or steel ropes and cables originating in the Russian Federation as defined in Article 1(1) of Regulation (EC) No 1601/2001 (12) decreased by 41 % during the period considered. |
| --- | --- |

(97)

According to Eurostat data, the volume of imports of certain iron or steel ropes and cables originating in the Russian Federation as defined in Article 1(1) of Regulation (EC) No 1601/2001 (12) decreased by 41 % during the period considered.

12

| (98) | The market share of Russian imports decreased from 1,5 % in 2007 to 1,1 % in the RIP. |
| --- | --- |

(98)

The market share of Russian imports decreased from 1,5 % in 2007 to 1,1 % in the RIP.

5.   Economic Situation of the UI

Economic Situation of the UI

| (99) | Pursuant to Article 3(5) of the basic Regulation, the Commission examined all relevant economic factors and indices having a bearing on the state of the UI. |
| --- | --- |

(99)

Pursuant to Article 3(5) of the basic Regulation, the Commission examined all relevant economic factors and indices having a bearing on the state of the UI.

5.1.   Preliminary remarks

Preliminary remarks

| (100) | In view of the fact that sampling was used with regard to the UI, the injury was assessed both on the basis of information collected at the level of the entire UI as defined in recital (75) and on the basis of information collected at the level of the sampled Union producers. |
| --- | --- |

(100)

In view of the fact that sampling was used with regard to the UI, the injury was assessed both on the basis of information collected at the level of the entire UI as defined in recital (75) and on the basis of information collected at the level of the sampled Union producers.

| (101) | Where recourse is made to sampling, in accordance with established practice, certain injury indicators (production, capacity, productivity, stocks, sales, market share, growth and employment) are analysed for the UI as a whole, while those injury indicators relating to the performance of individual companies, i.e. prices, costs of production, profitability, wages, investments, return on investment, cash flow and ability to raise capital are examined on the basis of the information collected at the level of the sampled Union producers. |
| --- | --- |

(101)

Where recourse is made to sampling, in accordance with established practice, certain injury indicators (production, capacity, productivity, stocks, sales, market share, growth and employment) are analysed for the UI as a whole, while those injury indicators relating to the performance of individual companies, i.e. prices, costs of production, profitability, wages, investments, return on investment, cash flow and ability to raise capital are examined on the basis of the information collected at the level of the sampled Union producers.

| (102) | One of the producers of the sampled group Bridon, Bridon International Limited, kept its accounts in GBP during the period considered. As a result, certain injury indicators were influenced by the fluctuation of the exchange rate between GBP and EUR during the period considered. |
| --- | --- |

(102)

One of the producers of the sampled group Bridon, Bridon International Limited, kept its accounts in GBP during the period considered. As a result, certain injury indicators were influenced by the fluctuation of the exchange rate between GBP and EUR during the period considered.

5.2.   Data relating to the UI

Data relating to the UI

(a)   Production

| (103) | The UI’s production decreased by 9 % between 2007 and the RIP, i.e. from 182 681 tonnes to 165 394 tonnes. Production volume remained unchanged in 2008 before dropping significantly by 13 % in 2009 as a consequence of the global economic downturn. It recovered in the RIP and increased by 4 percentage points. The production volume decreased less than the consumption on the Union market as a consequence of the demand on non-EU markets.









  UI | 2007 | 2008 | 2009 | RIP |
| --- | --- | --- | --- | --- | --- |
| Production volume
  (in tonnes) | 182 681 | 182 691 | 159 266 | 165 394 |
| index | 100 | 100 | 87 | 91 |

(103)

The UI’s production decreased by 9 % between 2007 and the RIP, i.e. from 182 681 tonnes to 165 394 tonnes. Production volume remained unchanged in 2008 before dropping significantly by 13 % in 2009 as a consequence of the global economic downturn. It recovered in the RIP and increased by 4 percentage points. The production volume decreased less than the consumption on the Union market as a consequence of the demand on non-EU markets.

UI

2007

2008

2009

RIP

Production volume

(in tonnes)

182 681

182 691

159 266

165 394

index

index

100

100

87

91

(b)   Capacity and capacity utilisation rates

| (104) | Production capacity decreased by 6 % during the period considered. In 2009, it decreased by 10 % before increasing by 4 percentage points in the RIP. As production declined relatively more than capacity, the resulting capacity utilisation declined, from 69 % in 2007 to 66 % in the RIP.









  UI | 2007 | 2008 | 2009 | RIP |
| --- | --- | --- | --- | --- | --- |
| Capacity | 265 779 | 261 383 | 239 312 | 249 254 |
| index | 100 | 98 | 90 | 94 |
| Capacity utilisation (%) | 69 | 70 | 67 | 66 |
| index | 100 | 102 | 97 | 97 |

(104)

Production capacity decreased by 6 % during the period considered. In 2009, it decreased by 10 % before increasing by 4 percentage points in the RIP. As production declined relatively more than capacity, the resulting capacity utilisation declined, from 69 % in 2007 to 66 % in the RIP.

UI

2007

2008

2009

RIP

Capacity

265 779

261 383

239 312

249 254

index

index

100

98

90

94

Capacity utilisation (%)

69

70

67

66

index

index

100

102

97

97

(c)   Stocks

| (105) | The level of closing stocks of the UI increased in 2008 and 2009 but decreased in the RIP to the 2007 level.









  UI | 2007 | 2008 | 2009 | RIP |
| --- | --- | --- | --- | --- | --- |
| Closing stock
  (in tonnes) | 12 656 | 13 254 | 12 790 | 12 651 |
| index | 100 | 105 | 101 | 100 |

(105)

The level of closing stocks of the UI increased in 2008 and 2009 but decreased in the RIP to the 2007 level.

UI

2007

2008

2009

RIP

Closing stock

(in tonnes)

12 656

13 254

12 790

12 651

index

index

100

105

101

100

(d)   Sales volume

| (106) | The sales by the UI on the Union market decreased by 20 % between 2007 and the RIP. After decreasing by 5 % in 2008, sales volume further decreased by 24 percentage points in 2009 as a consequence of the economic downturn. This development is in line with the evolution of the Union market, which declined by 21 % between 2007 and the RIP as a result of the economic downturn.









  UI | 2007 | 2008 | 2009 | RIP |
| --- | --- | --- | --- | --- | --- |
| Sales to unrelated parties in the Union (in tonnes) | 112 387 | 106 431 | 80 340 | 89 551 |
| index | 100 | 95 | 71 | 80 |

(106)

The sales by the UI on the Union market decreased by 20 % between 2007 and the RIP. After decreasing by 5 % in 2008, sales volume further decreased by 24 percentage points in 2009 as a consequence of the economic downturn. This development is in line with the evolution of the Union market, which declined by 21 % between 2007 and the RIP as a result of the economic downturn.

UI

2007

2008

2009

RIP

Sales to unrelated parties in the Union (in tonnes)

112 387

106 431

80 340

89 551

index

index

100

95

71

80

(e)   Market share

| (107) | The UI managed to keep its market share unchanged at 44 % between 2007 and the RIP. The years 2008 and 2009 however showed a drop in market share down to respectively 41 % and 40 % of the Union consumption.









  UI | 2007 | 2008 | 2009 | RIP |
| --- | --- | --- | --- | --- | --- |
| Market share (%) | 44 | 41 | 40 | 44 |
| index | 100 | 94 | 91 | 100 |

(107)

The UI managed to keep its market share unchanged at 44 % between 2007 and the RIP. The years 2008 and 2009 however showed a drop in market share down to respectively 41 % and 40 % of the Union consumption.

UI

2007

2008

2009

RIP

Market share (%)

44

41

40

44

index

index

100

94

91

100

(f)   Growth

| (108) | Between 2007 and the RIP, when the Union consumption decreased by 21 %, the sales volume of the UI decreased by only 20 %. The UI thus slightly gained market share, whereas the imports from the countries concerned lost almost 2 percentage points during the same period. |
| --- | --- |

(108)

Between 2007 and the RIP, when the Union consumption decreased by 21 %, the sales volume of the UI decreased by only 20 %. The UI thus slightly gained market share, whereas the imports from the countries concerned lost almost 2 percentage points during the same period.

(g)   Employment

| (109) | The level of employment of the UI declined by 12 % between 2007 and the RIP. The main decrease took place in 2009 when employment decreased by 8 percentage points. This shows that the UI was able to adapt to the new market situation.









  UI | 2007 | 2008 | 2009 | RIP |
| --- | --- | --- | --- | --- | --- |
| Employment | 3 052 | 2 978 | 2 752 | 2 694 |
| index | 100 | 98 | 90 | 88 |

(109)

The level of employment of the UI declined by 12 % between 2007 and the RIP. The main decrease took place in 2009 when employment decreased by 8 percentage points. This shows that the UI was able to adapt to the new market situation.

UI

2007

2008

2009

RIP

Employment

3 052

2 978

2 752

2 694

index

index

100

98

90

88

(h)   Productivity

| (110) | Productivity of the UI’s workforce, measured as output per full time equivalent (‘FTE’) employed per year, was volatile over the period considered as it increased by 2 percentage points in 2008 then decreased by 5 percentage points in 2009 before increasing by 6 percentage points in the RIP.









  UI | 2007 | 2008 | 2009 | RIP |
| --- | --- | --- | --- | --- | --- |
| Productivity | 59,9 | 61,3 | 57,9 | 61,4 |
| index | 100 | 102 | 97 | 103 |

(110)

Productivity of the UI’s workforce, measured as output per full time equivalent (‘FTE’) employed per year, was volatile over the period considered as it increased by 2 percentage points in 2008 then decreased by 5 percentage points in 2009 before increasing by 6 percentage points in the RIP.

UI

2007

2008

2009

RIP

Productivity

59,9

61,3

57,9

61,4

index

index

100

102

97

103

(i)   Magnitude of dumping margin

| (111) | As concerns the impact on the UI of the magnitude of the actual margins of dumping found which were high, given the overall volume of the imports from the countries concerned and the existence of anti-dumping duties, this impact cannot be considered to be significant. |
| --- | --- |

(111)

As concerns the impact on the UI of the magnitude of the actual margins of dumping found which were high, given the overall volume of the imports from the countries concerned and the existence of anti-dumping duties, this impact cannot be considered to be significant.

5.3.   Data relating to the sampled Union producers

Data relating to the sampled Union producers

(j)   Sales prices and factors affecting domestic prices

| (112) | Unit sales prices of the UI increased by 11 % between 2007 and the RIP. Prices increased progressively by 16 % until 2009 before dropping by 5 percentage points in the RIP. This price development is linked to the fact that the UI was able to spread highly priced orders taken before the economic downturn over to 2009. It is also linked to the progressive migration of the UI towards more highly priced SWR, namely larger diameter SWR.









  Sampled producers | 2007 | 2008 | 2009 | RIP |
| --- | --- | --- | --- | --- | --- |
| Average unit sales price in the EU (EUR/tonne) | 3 219 | 3 492 | 3 720 | 3 560 |
| index | 100 | 108 | 116 | 111 |

(112)

Unit sales prices of the UI increased by 11 % between 2007 and the RIP. Prices increased progressively by 16 % until 2009 before dropping by 5 percentage points in the RIP. This price development is linked to the fact that the UI was able to spread highly priced orders taken before the economic downturn over to 2009. It is also linked to the progressive migration of the UI towards more highly priced SWR, namely larger diameter SWR.

Sampled producers

2007

2008

2009

RIP

Average unit sales price in the EU (EUR/tonne)

3 219

3 492

3 720

3 560

index

index

100

108

116

111

(k)   Wages

| (113) | Between 2007 and the RIP, the average wage per FTE decreased by 12 % during the period considered. No meaningful conclusion should however be drawn from the below table as wages per employee were heavily influenced by the fluctuation of the GBP – EUR exchange rate during the period considered.









  Sampled producers | 2007 | 2008 | 2009 | RIP |
| --- | --- | --- | --- | --- | --- |
| Wages per FTE (EUR) | 55 062 | 50 570 | 46 638 | 48 329 |
| index | 100 | 92 | 85 | 88 |

(113)

Between 2007 and the RIP, the average wage per FTE decreased by 12 % during the period considered. No meaningful conclusion should however be drawn from the below table as wages per employee were heavily influenced by the fluctuation of the GBP – EUR exchange rate during the period considered.

Sampled producers

2007

2008

2009

RIP

Wages per FTE (EUR)

55 062

50 570

46 638

48 329

index

index

100

92

85

88

(l)   Investments and ability to raise capital

| (114) | Although investments in SWR decreased by 32 % over the period considered, they were significant and amounted to over EUR 35 million. Investments mainly concentrated on high margin SWR. The sampled producers did not face difficulty to raise capital over the period considered as the investments could usually be paid back within a few years.









  Sampled producers | 2007 | 2008 | 2009 | RIP |
| --- | --- | --- | --- | --- | --- |
| Investments
  (EUR 1 000 ) | 12 331 | 9 038 | 6 283 | 8 406 |
| index | 100 | 73 | 51 | 68 |

(114)

Although investments in SWR decreased by 32 % over the period considered, they were significant and amounted to over EUR 35 million. Investments mainly concentrated on high margin SWR. The sampled producers did not face difficulty to raise capital over the period considered as the investments could usually be paid back within a few years.

Sampled producers

2007

2008

2009

RIP

Investments

(EUR 1 000 )

12 331

9 038

6 283

8 406

index

index

100

73

51

68

(m)   Profitability on the Union market

| (115) | The sampled producers managed to achieve profits over the whole period considered. The profits achieved from 2008 to the RIP were above the target profit of 5 % set in the original investigation. The results achieved by the sampled producers are mainly explained by the price development between 2007 and the RIP and by the sustained global demand for the sampled producers that enabled them to dilute fix costs. The drop in profitability in the RIP is explained by a drop in prices and by a decrease in production volume which had a negative impact on cost of production.









  Sampled producers | 2007 | 2008 | 2009 | RIP |
| --- | --- | --- | --- | --- | --- |
| Profitability on the Union market (%) | 3,6 | 5,7 | 11,1 | 6,5 |
| index | 100 | 158 | 307 | 179 |

(115)

The sampled producers managed to achieve profits over the whole period considered. The profits achieved from 2008 to the RIP were above the target profit of 5 % set in the original investigation. The results achieved by the sampled producers are mainly explained by the price development between 2007 and the RIP and by the sustained global demand for the sampled producers that enabled them to dilute fix costs. The drop in profitability in the RIP is explained by a drop in prices and by a decrease in production volume which had a negative impact on cost of production.

Sampled producers

2007

2008

2009

RIP

Profitability on the Union market (%)

3,6

5,7

11,1

6,5

index

index

100

158

307

179

(n)   Return on investments

| (116) | The return on investments (ROI), expressed as the total profit generated by the SWR activity in percent of the net book value of assets directly and indirectly related to the production of SWR, broadly followed the above profitability trends over the whole period considered.









  Sampled producers | 2007 | 2008 | 2009 | RIP |
| --- | --- | --- | --- | --- | --- |
| ROI (%) | 24,5 | 45 | 76,4 | 69,6 |
| index | 100 | 184 | 312 | 284 |

(116)

The return on investments (ROI), expressed as the total profit generated by the SWR activity in percent of the net book value of assets directly and indirectly related to the production of SWR, broadly followed the above profitability trends over the whole period considered.

Sampled producers

2007

2008

2009

RIP

ROI (%)

24,5

45

76,4

69,6

index

index

100

184

312

284

(o)   Cash flow

| (117) | The cash-flow situation improved between 2007 and the RIP, it followed the above profitability trends over the whole period considered.









  Sampled producers | 2007 | 2008 | 2009 | RIP |
| --- | --- | --- | --- | --- | --- |
| Cash Flow
  (EUR 1 000 ) | 20 255 | 38 579 | 60 276 | 45 841 |
| index | 100 | 190 | 298 | 226 |

(117)

The cash-flow situation improved between 2007 and the RIP, it followed the above profitability trends over the whole period considered.

Sampled producers

2007

2008

2009

RIP

Cash Flow

(EUR 1 000 )

20 255

38 579

60 276

45 841

index

index

100

190

298

226

(p)   Recovery from the effects of past dumping

| (118) | While the indicators examined above show that the UI suffered from the economic downturn as sales volume, production volume, employment and investments went down, they also indicate that the UI adapted its production equipment to better face the new economic environment and be able to seize opportunities on EU and non-EU markets in segments where high margins can be achieved. The improvement in the economic and financial situation of the UI, further to the imposition of anti-dumping measures in 1999, is evidence that the measures are effective and that the UI recovered from the effects of past dumping practices. |
| --- | --- |

(118)

While the indicators examined above show that the UI suffered from the economic downturn as sales volume, production volume, employment and investments went down, they also indicate that the UI adapted its production equipment to better face the new economic environment and be able to seize opportunities on EU and non-EU markets in segments where high margins can be achieved. The improvement in the economic and financial situation of the UI, further to the imposition of anti-dumping measures in 1999, is evidence that the measures are effective and that the UI recovered from the effects of past dumping practices.

| (119) | The Ukrainian Government indicated that it failed to understand how the lifting of anti-dumping duties against Ukrainian imports could injure the UI when its injury indicators mostly showed positive trends in a period of economic crisis and especially between 2009 and the RIP. This analysis was however based on a limited period of time and not the whole period considered. It should be noted that this period is not representative of the overall trend, which started from a situation where the target profit was not even achieved and was eventually reached in spite of the economic crisis which affected the UI and its indicators at the end of the period considered. Indeed, as indicated in recitals (112) and (115), the relatively positive overall picture showed by the UI is explained on the one hand by the heavy order book at the end of 2008 that was spread over 2009 and by the increase in consumption on non-EU markets which contributed to overall positive trends with regard to profit-related indicators. |
| --- | --- |

(119)

The Ukrainian Government indicated that it failed to understand how the lifting of anti-dumping duties against Ukrainian imports could injure the UI when its injury indicators mostly showed positive trends in a period of economic crisis and especially between 2009 and the RIP. This analysis was however based on a limited period of time and not the whole period considered. It should be noted that this period is not representative of the overall trend, which started from a situation where the target profit was not even achieved and was eventually reached in spite of the economic crisis which affected the UI and its indicators at the end of the period considered. Indeed, as indicated in recitals (112) and (115), the relatively positive overall picture showed by the UI is explained on the one hand by the heavy order book at the end of 2008 that was spread over 2009 and by the increase in consumption on non-EU markets which contributed to overall positive trends with regard to profit-related indicators.

5.4.   Conclusion

Conclusion

| (120) | Although consumption decreased by 21 %, the UI managed to maintain its market share, prices increased by 11 %, and stocks remained at a reasonable level while production volume decreased less than consumption. In terms of profitability, the UI was profitable throughout the period considered. Considering the above, it can be concluded that the UI did not suffer material injury over the period considered. |
| --- | --- |

(120)

Although consumption decreased by 21 %, the UI managed to maintain its market share, prices increased by 11 %, and stocks remained at a reasonable level while production volume decreased less than consumption. In terms of profitability, the UI was profitable throughout the period considered. Considering the above, it can be concluded that the UI did not suffer material injury over the period considered.

F.   LIKELIHOOD OF RECURRENCE OF INJURY

LIKELIHOOD OF RECURRENCE OF INJURY

| (121) | As explained in recitals (55) and (68), the exporting producers in the PRC and Ukraine have the potential to substantially raise their exports volume to the Union by using the available spare capacities. Indeed, significant capacities are available reaching more than 500 000 tonnes which represents the entire Union consumption. It is therefore likely that substantial quantities of PRC and Ukrainian SWR will penetrate the Union market to regain lost market share and increase it further should measures be repealed. |
| --- | --- |

(121)

As explained in recitals (55) and (68), the exporting producers in the PRC and Ukraine have the potential to substantially raise their exports volume to the Union by using the available spare capacities. Indeed, significant capacities are available reaching more than 500 000 tonnes which represents the entire Union consumption. It is therefore likely that substantial quantities of PRC and Ukrainian SWR will penetrate the Union market to regain lost market share and increase it further should measures be repealed.

| (122) | As highlighted in recital (88), prices of imports from PRC and Ukraine were found to be low and to undercut EU prices. These low prices would most likely continue to be charged. Indeed, in the case of Ukraine, as indicated in recital (67), prices may even drop further. Such a price behaviour, coupled with the ability of the exporters in these countries to deliver significant quantities of the product concerned on the Union market, would in all likelihood have a downward effect on prices in the Union market, with an expected negative impact on the economic situation of the UI. As shown above, the financial performance of the UI is closely linked to the price level on the Union market. It is therefore likely that if the UI were exposed to increased volumes of imports from the PRC and Ukraine at dumped prices it would result in a deterioration of its financial situation as found in the original investigation. On this basis, it is therefore concluded, that the repeal of the measures against imports originating in the PRC and Ukraine would in all likelihood result in the recurrence of injury to the UI. |
| --- | --- |

(122)

As highlighted in recital (88), prices of imports from PRC and Ukraine were found to be low and to undercut EU prices. These low prices would most likely continue to be charged. Indeed, in the case of Ukraine, as indicated in recital (67), prices may even drop further. Such a price behaviour, coupled with the ability of the exporters in these countries to deliver significant quantities of the product concerned on the Union market, would in all likelihood have a downward effect on prices in the Union market, with an expected negative impact on the economic situation of the UI. As shown above, the financial performance of the UI is closely linked to the price level on the Union market. It is therefore likely that if the UI were exposed to increased volumes of imports from the PRC and Ukraine at dumped prices it would result in a deterioration of its financial situation as found in the original investigation. On this basis, it is therefore concluded, that the repeal of the measures against imports originating in the PRC and Ukraine would in all likelihood result in the recurrence of injury to the UI.

| (123) | As far as South Africa is concerned and as indicated in recital (63), spare capacities appear to be limited. As highlighted in recital (92), South African export prices to the EU were found not to undercut the UI prices. Given the low volume exported to the EU that entered the Union market, exports prices of South African SWR to the five main non-EU markets were also compared to the UI prices on a product type basis. These prices were found not to undercut the UI prices either. |
| --- | --- |

(123)

As far as South Africa is concerned and as indicated in recital (63), spare capacities appear to be limited. As highlighted in recital (92), South African export prices to the EU were found not to undercut the UI prices. Given the low volume exported to the EU that entered the Union market, exports prices of South African SWR to the five main non-EU markets were also compared to the UI prices on a product type basis. These prices were found not to undercut the UI prices either.

| (124) | Considering the limited spare capacities and the absence of price undercutting, it is concluded that the repeal of the measures on imports originating in South Africa would in all likelihood not result in the recurrence of injury to the UI. |
| --- | --- |

(124)

Considering the limited spare capacities and the absence of price undercutting, it is concluded that the repeal of the measures on imports originating in South Africa would in all likelihood not result in the recurrence of injury to the UI.

G.   UNION INTEREST

UNION INTEREST

1.   Introduction

Introduction

| (125) | In compliance with Article 21 of the basic Regulation, it was examined whether maintenance of the existing anti-dumping measures against the PRC and Ukraine would be against the interest of the Union as a whole. The determination of the Union interest was based on an appreciation of all the various interests involved. It should be recalled that, in the previous investigations, the adoption of measures was considered not to be against the interest of the Union. Furthermore, the fact that the present investigation is a review, thus analysing a situation in which anti-dumping measures have already been in place, allows the assessment of any undue negative impact on the parties concerned by the current anti-dumping measures. |
| --- | --- |

(125)

In compliance with Article 21 of the basic Regulation, it was examined whether maintenance of the existing anti-dumping measures against the PRC and Ukraine would be against the interest of the Union as a whole. The determination of the Union interest was based on an appreciation of all the various interests involved. It should be recalled that, in the previous investigations, the adoption of measures was considered not to be against the interest of the Union. Furthermore, the fact that the present investigation is a review, thus analysing a situation in which anti-dumping measures have already been in place, allows the assessment of any undue negative impact on the parties concerned by the current anti-dumping measures.

| (126) | On this basis, it was examined whether, despite the conclusions on the likelihood of recurrence of injurious dumping, compelling reasons existed which would lead to the conclusion that it is not in the Union interest to maintain measures against imports originating in the PRC and Ukraine in this particular case. |
| --- | --- |

(126)

On this basis, it was examined whether, despite the conclusions on the likelihood of recurrence of injurious dumping, compelling reasons existed which would lead to the conclusion that it is not in the Union interest to maintain measures against imports originating in the PRC and Ukraine in this particular case.

2.   Interest of the UI

Interest of the UI

| (127) | The UI has proven to be a structurally viable industry. This was confirmed by the positive development of its economic situation observed during the period considered. In particular, the fact that the UI maintained its market share over the period considered contrasts sharply with the situation preceding the imposition of the measures in 1999. Also, it is noted that the UI improved its profit situation between 2007 and the RIP. It is further recalled that circumvention had been found by imports from Morocco, Moldova and South Korea. Had this development not occurred, the situation of the UI could have been even more favourable. |
| --- | --- |

(127)

The UI has proven to be a structurally viable industry. This was confirmed by the positive development of its economic situation observed during the period considered. In particular, the fact that the UI maintained its market share over the period considered contrasts sharply with the situation preceding the imposition of the measures in 1999. Also, it is noted that the UI improved its profit situation between 2007 and the RIP. It is further recalled that circumvention had been found by imports from Morocco, Moldova and South Korea. Had this development not occurred, the situation of the UI could have been even more favourable.

| (128) | It can reasonably be expected that the UI will continue to benefit from the measures to be maintained. Should the measures against imports originating in the PRC and Ukraine not be maintained, it is likely that the UI will start again to suffer injury from increased imports at dumped prices from these countries and that its financial situation will deteriorate. |
| --- | --- |

(128)

It can reasonably be expected that the UI will continue to benefit from the measures to be maintained. Should the measures against imports originating in the PRC and Ukraine not be maintained, it is likely that the UI will start again to suffer injury from increased imports at dumped prices from these countries and that its financial situation will deteriorate.

3.   Interest of importers

Interest of importers

| (129) | It is recalled that in the previous investigations it was found that the impact of the imposition of measures would not be significant. As indicated in recital (11), two importers replied to the questionnaire and cooperated fully in this proceeding. They indicated that measures were pushing prices up. The investigation however revealed that other sources of supply existed and that import prices from other countries were at similar levels as the PRC ones. |
| --- | --- |

(129)

It is recalled that in the previous investigations it was found that the impact of the imposition of measures would not be significant. As indicated in recital (11), two importers replied to the questionnaire and cooperated fully in this proceeding. They indicated that measures were pushing prices up. The investigation however revealed that other sources of supply existed and that import prices from other countries were at similar levels as the PRC ones.

| (130) | On the basis of the above, it was concluded that the current measures in force had no substantial negative effect on their financial situation and that the continuation of the measures would not unduly affect the importers. |
| --- | --- |

(130)

On the basis of the above, it was concluded that the current measures in force had no substantial negative effect on their financial situation and that the continuation of the measures would not unduly affect the importers.

4.   Interest of users

Interest of users

| (131) | SWR are used in a wide variety of applications and therefore a large number of user industries might be concerned, such as fishing, maritime/shipping, oil and gas industries, mining, forestry, aerial transport, civil engineering, construction, and elevator. The above list of user industries is only indicative. |
| --- | --- |

(131)

SWR are used in a wide variety of applications and therefore a large number of user industries might be concerned, such as fishing, maritime/shipping, oil and gas industries, mining, forestry, aerial transport, civil engineering, construction, and elevator. The above list of user industries is only indicative.

| (132) | The Commission sent questionnaires to all known users. As mentioned in recital (16), only one user cooperated in this proceeding. It indicated that it did not suffer from the existence of the measures as other sources were available and that SWR did not represent a significant share of its cost of production. In this context, it was concluded that given the negligible incidence of the cost of SWR on the user industries and the existence of other available sources of supply, the measures in force do not have a significant effect on the user industry. |
| --- | --- |

(132)

The Commission sent questionnaires to all known users. As mentioned in recital (16), only one user cooperated in this proceeding. It indicated that it did not suffer from the existence of the measures as other sources were available and that SWR did not represent a significant share of its cost of production. In this context, it was concluded that given the negligible incidence of the cost of SWR on the user industries and the existence of other available sources of supply, the measures in force do not have a significant effect on the user industry.

5.   Conclusion on Union interest

Conclusion on Union interest

| (133) | Given the above, it is concluded that there are no compelling reasons against the maintenance of the current anti-dumping measures. |
| --- | --- |

(133)

Given the above, it is concluded that there are no compelling reasons against the maintenance of the current anti-dumping measures.

H.   ANTI-DUMPING MEASURES

ANTI-DUMPING MEASURES

| (134) | All parties were informed of the essential facts and considerations on the basis of which it is intended to recommend that the existing measures be maintained on imports of the product concerned originating in the PRC and Ukraine and be terminated with regard to imports originating in South Africa. They were also granted a period to make representations subsequent to this disclosure. No comments were received which were of a nature to change the above conclusions. |
| --- | --- |

(134)

All parties were informed of the essential facts and considerations on the basis of which it is intended to recommend that the existing measures be maintained on imports of the product concerned originating in the PRC and Ukraine and be terminated with regard to imports originating in South Africa. They were also granted a period to make representations subsequent to this disclosure. No comments were received which were of a nature to change the above conclusions.

| (135) | It follows from the above that, as provided for by Article 11(2) of the basic Regulation, the anti-dumping measures applicable to imports of SWR, originating in the PRC and Ukraine should be maintained. In opposition, the measures applicable to imports from South Africa should be allowed to lapse. |
| --- | --- |

(135)

It follows from the above that, as provided for by Article 11(2) of the basic Regulation, the anti-dumping measures applicable to imports of SWR, originating in the PRC and Ukraine should be maintained. In opposition, the measures applicable to imports from South Africa should be allowed to lapse.

| (136) | As outlined under recitals (2) and (3) above, the anti-dumping duties in force on imports of the product concerned from Ukraine and the PRC were extended to cover, in addition, imports of SWR consigned from Moldova, Morocco and the Republic of Korea respectively, whether declared as originating in Moldova, Morocco or the Republic of Korea or not. The anti-dumping duty to be maintained on imports of the product concerned, as set out in recital (2), should continue to be extended to imports of SWR consigned from Moldova, Morocco and the Republic of Korea, whether declared as originating in Moldova, Morocco and the Republic of Korea or not. The exporting producer in Morocco who was exempted from the measures as extended by Regulation (EC) No 1886/2004 should also be exempted from the measures as imposed by this Regulation. The 11 exporting producers in South Korea who were exempted from the measures as extended by Implementing Regulation (EU) No 400/2010 should also be exempted from the measures as imposed by this Regulation, |
| --- | --- |

(136)

As outlined under recitals (2) and (3) above, the anti-dumping duties in force on imports of the product concerned from Ukraine and the PRC were extended to cover, in addition, imports of SWR consigned from Moldova, Morocco and the Republic of Korea respectively, whether declared as originating in Moldova, Morocco or the Republic of Korea or not. The anti-dumping duty to be maintained on imports of the product concerned, as set out in recital (2), should continue to be extended to imports of SWR consigned from Moldova, Morocco and the Republic of Korea, whether declared as originating in Moldova, Morocco and the Republic of Korea or not. The exporting producer in Morocco who was exempted from the measures as extended by Regulation (EC) No 1886/2004 should also be exempted from the measures as imposed by this Regulation. The 11 exporting producers in South Korea who were exempted from the measures as extended by Implementing Regulation (EU) No 400/2010 should also be exempted from the measures as imposed by this Regulation,

HAS ADOPTED THIS REGULATION:

Article 1

1.   A definitive anti-dumping duty is hereby imposed on imports of steel ropes and cables including locked coil ropes, excluding ropes and cables of stainless steel, with a maximum cross-sectional dimension exceeding 3 mm, currently falling within CN codes ex 7312 10 81, ex 7312 10 83, ex 7312 10 85, ex 7312 10 89 and ex 7312 10 98 (TARIC codes 7312108111, 7312108112, 7312108113, 7312108119, 7312108311, 7312108312, 7312108313, 7312108319, 7312108511, 7312108512, 7312108513, 7312108519, 7312108911, 7312108912, 7312108913, 7312108919, 7312109811, 7312109812, 7312109813 and 7312109819) and originating in the People’s Republic of China and Ukraine.

2.   The rate of the definitive anti-dumping duty applicable to the CIF net, free-at-Union-frontier price, before duty, of the product described in paragraph 1 and originating in the People’s Republic of China shall be 60,4 %.

3.   The rate of the definitive anti-dumping duty applicable to the CIF net, free-at-Union-frontier price, before duty, of the product described in paragraph 1 and originating in Ukraine shall be 51,8 %.

4.   The definitive anti-dumping duty applicable to imports originating in the People’s Republic of China, as set out in paragraph 2, is hereby extended to imports of the same steel ropes and cables consigned from Morocco, whether declared as originating in Morocco or not (TARIC codes 7312108112, 7312108312, 7312108512, 7312108912 and 7312109812) with the exception of those produced by Remer Maroc SARL, Zone Industrielle, Tranche 2, Lot 10, Settat, Morocco (TARIC additional code A567) and to imports of the same steel ropes and cables consigned from the Republic of Korea, whether declared as originating in the Republic of Korea or not (TARIC codes 7312108113, 7312108313, 7312108513, 7312108913 and 7312109813), with the exception of those produced by the companies listed below:

| Country | Company | TARIC additional code |
| --- | --- | --- |
| The Republic of Korea | Bosung Wire Rope Co., Ltd, 568, Yongdeok-ri, Hallim-myeon, Gimhae-si, Gyeongsangnam-do, 621-872 | A969 |
| Chung Woo Rope Co., Ltd, 1682-4, Songjung-Dong, Gangseo-Gu, Busan | A969 |
| CS Co., Ltd, 287-6 Soju-Dong Yangsan-City, Kyoungnam | A969 |
| Cosmo Wire Ltd, 4-10, Koyeon-Ri, Woong Chon-Myon Ulju-Kun, Ulsan | A969 |
| Dae Heung Industrial Co., Ltd, 185 Pyunglim – Ri, Daesan-Myun, Haman – Gun, Gyungnam | A969 |
| DSR Wire Corp., 291, Seonpyong-Ri, Seo-Myon, Suncheon-City, Jeonnam | A969 |
| Kiswire Ltd, 20th Fl. Jangkyo Bldg., 1, Jangkyo-Dong, Chung-Ku, Seoul | A969 |
| Manho Rope & Wire Ltd, Dongho Bldg, 85-2, 4 Street Joongang-Dong, Jong-gu, Busan | A969 |
| Shin Han Rope Co., Ltd, 715-8, Gojan-dong, Namdong-gu, Incheon | A969 |
| Ssang Yong Cable Mfg. Co., Ltd, 1559-4 Song-Jeong Dong, Gang-Seo Gu, Busan | A969 |
| Young Heung Iron & Steel Co., Ltd, 71-1 Sin-Chon Dong, Changwon City, Gyungnam | A969 |

Country

Company

TARIC additional code

The Republic of Korea

Bosung Wire Rope Co., Ltd, 568, Yongdeok-ri, Hallim-myeon, Gimhae-si, Gyeongsangnam-do, 621-872

A969

Chung Woo Rope Co., Ltd, 1682-4, Songjung-Dong, Gangseo-Gu, Busan

A969

CS Co., Ltd, 287-6 Soju-Dong Yangsan-City, Kyoungnam

A969

Cosmo Wire Ltd, 4-10, Koyeon-Ri, Woong Chon-Myon Ulju-Kun, Ulsan

A969

Dae Heung Industrial Co., Ltd, 185 Pyunglim – Ri, Daesan-Myun, Haman – Gun, Gyungnam

A969

DSR Wire Corp., 291, Seonpyong-Ri, Seo-Myon, Suncheon-City, Jeonnam

A969

Kiswire Ltd, 20th Fl. Jangkyo Bldg., 1, Jangkyo-Dong, Chung-Ku, Seoul

A969

Manho Rope & Wire Ltd, Dongho Bldg, 85-2, 4 Street Joongang-Dong, Jong-gu, Busan

A969

Shin Han Rope Co., Ltd, 715-8, Gojan-dong, Namdong-gu, Incheon

A969

Ssang Yong Cable Mfg. Co., Ltd, 1559-4 Song-Jeong Dong, Gang-Seo Gu, Busan

A969

Young Heung Iron & Steel Co., Ltd, 71-1 Sin-Chon Dong, Changwon City, Gyungnam

A969

5.   The definitive anti-dumping duty applicable to imports originating in Ukraine, as set out in paragraph 3, is hereby extended to imports of the same steel ropes and cables consigned from Moldova, whether declared as originating in Moldova or not (TARIC codes 7312108111, 7312108311, 7312108511,7312108911 and 7312109811).

6.   Unless otherwise specified, the provisions in force concerning customs duties shall apply.

7.   The review proceeding concerning imports of steel ropes and cables including locked coil ropes, excluding ropes and cables of stainless steel, with a maximum cross-sectional dimension exceeding 3 mm, originating in South Africa and currently falling within CN codes ex 7312 10 81, ex 7312 10 83, ex 7312 10 85, ex 7312 10 89 and ex 7312 10 98, is hereby terminated.

Article 2

This Regulation shall enter into force on the day following its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 27 January 2012.

For the Council

The President

N. WAMMEN

---

(1)  
  OJ L 343, 22.12.2009, p. 51.

1

(2)  
  OJ L 217, 17.8.1999, p. 1.

2

(3)  
  OJ L 211, 4.8.2001, p. 1.

3

(4)  
  OJ L 285, 31.10.2007, p. 1.

4

(5)  
  OJ L 120, 24.4.2004, p. 1.

5

(6)  
  OJ L 328, 30.10.2004, p. 1.

6

(7)  
  OJ L 299, 16.11.2005, p. 1.

7

(8)  
  OJ L 117, 11.5.2010, p. 1.

8

(9)  
  OJ C 309, 13.11.2010, p. 6.

9

(10)  
  OJ C 311, 16.11.2010, p. 16.

10

(11)  Case T-369/08 European Wire Rope Importers Association (EWRIA) and Others v European Commission [2010], paragraphs 76ff.

11

European Wire Rope Importers Association (EWRIA) and Others

European Commission

ff

(12)  
  OJ L 211, 4.8.2001, p. 1.

12

---

| 9.2.2012 | EN | Official Journal of the European Union | L 36/17 |
| --- | --- | --- | --- |

9.2.2012

EN

Official Journal of the European Union

L 36/17

---

COMMISSION IMPLEMENTING REGULATION (EU) No 103/2012

of 7 February 2012

concerning the classification of certain goods in the Combined Nomenclature

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (1), and in particular Article 9(1)(a) thereof,

Whereas:

| (1) | In order to ensure uniform application of the Combined Nomenclature annexed to Regulation (EEC) No 2658/87, it is necessary to adopt measures concerning the classification of the goods referred to in the Annex to this Regulation. |
| --- | --- |

(1)

In order to ensure uniform application of the Combined Nomenclature annexed to Regulation (EEC) No 2658/87, it is necessary to adopt measures concerning the classification of the goods referred to in the Annex to this Regulation.

| (2) | Regulation (EEC) No 2658/87 has laid down the general rules for the interpretation of the Combined Nomenclature. Those rules apply also to any other nomenclature which is wholly or partly based on it or which adds any additional subdivision to it and which is established by specific provisions of the Union, with a view to the application of tariff and other measures relating to trade in goods. |
| --- | --- |

(2)

Regulation (EEC) No 2658/87 has laid down the general rules for the interpretation of the Combined Nomenclature. Those rules apply also to any other nomenclature which is wholly or partly based on it or which adds any additional subdivision to it and which is established by specific provisions of the Union, with a view to the application of tariff and other measures relating to trade in goods.

| (3) | Pursuant to those general rules, the goods described in column (1) of the table set out in the Annex should be classified under the CN code indicated in column (2), by virtue of the reasons set out in column (3) of that table. |
| --- | --- |

(3)

Pursuant to those general rules, the goods described in column (1) of the table set out in the Annex should be classified under the CN code indicated in column (2), by virtue of the reasons set out in column (3) of that table.

| (4) | It is appropriate to provide that binding tariff information which has been issued by the customs authorities of Member States in respect of the classification of goods in the Combined Nomenclature but which is not in accordance with this Regulation can, for a period of three months, continue to be invoked by the holder, under Article 12(6) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (2). |
| --- | --- |

(4)

It is appropriate to provide that binding tariff information which has been issued by the customs authorities of Member States in respect of the classification of goods in the Combined Nomenclature but which is not in accordance with this Regulation can, for a period of three months, continue to be invoked by the holder, under Article 12(6) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (2).

| (5) | The measures provided for in this Regulation are in accordance with the opinion of the Customs Code Committee, |
| --- | --- |

(5)

The measures provided for in this Regulation are in accordance with the opinion of the Customs Code Committee,

HAS ADOPTED THIS REGULATION:

Article 1

The goods described in column (1) of the table set out in the Annex shall be classified within the Combined Nomenclature under the CN code indicated in column (2) of that table.

Article 2

Binding tariff information issued by the customs authorities of Member States, which is not in accordance with this Regulation, can continue to be invoked for a period of three months under Article 12(6) of Regulation (EEC) No 2913/92.

Article 3

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 7 February 2012.

For the Commission, On behalf of the President,

Algirdas ŠEMETA

Member of the Commission

---

(1)  
  OJ L 256, 7.9.1987, p. 1.

1

(2)  
  OJ L 302, 19.10.1992, p. 1.

2

---

ANNEX

| Description of the goods | Classification
  (CN code) | Reasons |
| --- | --- | --- |
| (1) | (2) | (3) |
| A modular screen panel (so-called "LED wall") comprising several modules made of tiles, each tile measuring approximately 38 × 38 × 9 cm.
  Each tile contains red, green and blue light emitting diodes and has a resolution of 16 × 16 pixels, a dot pitch of 24 mm, a brightness of 2 000 cd/m2 and a refresh rate of more than 300 Hz. They also contain drive electronics.
  The panel is presented together with a processing system comprising:






  — | a video processor accepting various signal inputs (such as CVBS, Y/C, YUV/RGB, (HD-)SDI or DVI) and allowing the scaling of an image/video to the screen panel size, and |

Description of the goods

Classification

(CN code)

Reasons

(1)

(2)

(3)

A modular screen panel (so-called "LED wall") comprising several modules made of tiles, each tile measuring approximately 38 × 38 × 9 cm.

Each tile contains red, green and blue light emitting diodes and has a resolution of 16 × 16 pixels, a dot pitch of 24 mm, a brightness of 2 000 cd/m2 and a refresh rate of more than 300 Hz. They also contain drive electronics.

The panel is presented together with a processing system comprising:

—

a video processor accepting various signal inputs (such as CVBS, Y/C, YUV/RGB, (HD-)SDI or DVI) and allowing the scaling of an image/video to the screen panel size, and

| — | a signal processor allowing the pixel mapping of the input signal to the screen panel. |
| --- | --- |

—

a signal processor allowing the pixel mapping of the input signal to the screen panel.

The processed signal is sent from the signal processor to a data distributor using optical fibre cables. The data distributor sends in turn the data to the various tiles of the screen panel.

The panel is not designed for viewing at close distance. It is used for sport/entertainment events, retail signage, etc.

8528 59 80

Classification is determined by General Rules 1 and 6 for the interpretation of the Combined Nomenclature, Note 4 to Section XVI and by the wording of CN codes 8528 , 8528 59 and 8528 59 80 .

The modular screen panel and the video processing system are considered to be a functional unit within the meaning of Note 4 to Section XVI as they constitute individual components, interconnected by electric cables or other devices, intended to contribute together to a clearly defined function.

The unit is capable of displaying video images from various sources, which is an individual function specified in heading 8528 .

Given that the unit is capable of displaying different types of video, it cannot be considered as an electrical apparatus for signalling purposes using visual indication. Classification under heading 8531 as an indicator panel is therefore excluded (see also the HS Explanatory Notes to heading 8531 , (D)).

The unit is therefore to be classified under CN code 8528 59 80 as other colour monitors.

---

| 9.2.2012 | EN | Official Journal of the European Union | L 36/19 |
| --- | --- | --- | --- |

9.2.2012

EN

Official Journal of the European Union

L 36/19

---

COMMISSION IMPLEMENTING REGULATION (EU) No 104/2012

of 7 February 2012

concerning the classification of certain goods in the Combined Nomenclature

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (1), and in particular Article 9(1)(a) thereof,

Whereas:

| (1) | In order to ensure uniform application of the Combined Nomenclature annexed to Regulation (EEC) No 2658/87, it is necessary to adopt measures concerning the classification of the goods referred to in the Annex to this Regulation. |
| --- | --- |

(1)

In order to ensure uniform application of the Combined Nomenclature annexed to Regulation (EEC) No 2658/87, it is necessary to adopt measures concerning the classification of the goods referred to in the Annex to this Regulation.

| (2) | Regulation (EEC) No 2658/87 has laid down the general rules for the interpretation of the Combined Nomenclature. Those rules apply also to any other nomenclature which is wholly or partly based on it or which adds any additional subdivision to it and which is established by specific provisions of the Union, with a view to the application of tariff and other measures relating to trade in goods. |
| --- | --- |

(2)

Regulation (EEC) No 2658/87 has laid down the general rules for the interpretation of the Combined Nomenclature. Those rules apply also to any other nomenclature which is wholly or partly based on it or which adds any additional subdivision to it and which is established by specific provisions of the Union, with a view to the application of tariff and other measures relating to trade in goods.

| (3) | Pursuant to those general rules, the goods described in column (1) of the table set out in the Annex should be classified under the CN code indicated in column (2), by virtue of the reasons set out in column (3) of that table. |
| --- | --- |

(3)

Pursuant to those general rules, the goods described in column (1) of the table set out in the Annex should be classified under the CN code indicated in column (2), by virtue of the reasons set out in column (3) of that table.

| (4) | It is appropriate to provide that binding tariff information which has been issued by the customs authorities of Member States in respect of the classification of goods in the Combined Nomenclature but which is not in accordance with this Regulation can, for a period of three months, continue to be invoked by the holder, under Article 12(6) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (2). |
| --- | --- |

(4)

It is appropriate to provide that binding tariff information which has been issued by the customs authorities of Member States in respect of the classification of goods in the Combined Nomenclature but which is not in accordance with this Regulation can, for a period of three months, continue to be invoked by the holder, under Article 12(6) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (2).

| (5) | The measures provided for in this Regulation are in accordance with the opinion of the Customs Code Committee, |
| --- | --- |

(5)

The measures provided for in this Regulation are in accordance with the opinion of the Customs Code Committee,

HAS ADOPTED THIS REGULATION:

Article 1

The goods described in column (1) of the table set out in the Annex shall be classified within the Combined Nomenclature under the CN code indicated in column (2) of that table.

Article 2

Binding tariff information issued by the customs authorities of Member States, which is not in accordance with this Regulation, can continue to be invoked for a period of three months under Article 12(6) of Regulation (EEC) No 2913/92.

Article 3

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 7 February 2012.

For the Commission, On behalf of the President,

Algirdas ŠEMETA

Member of the Commission

---

(1)  
  OJ L 256, 7.9.1987, p. 1.

1

(2)  
  OJ L 302, 19.10.1992, p. 1.

2

---

ANNEX

| Description of the goods | Classification
  (CN code) | Reasons |
| --- | --- | --- |
| (1) | (2) | (3) |
| A so-called "bicycle set", consisting of the following components:






  (a) | a frame, |

Description of the goods

Classification

(CN code)

Reasons

(1)

(2)

(3)

A so-called "bicycle set", consisting of the following components:

(a)

a frame,

| (b) | a front fork, and |
| --- | --- |

(b)

a front fork, and

| (c) | two rims. |
| --- | --- |

(c)

two rims.

The components are presented for customs clearance at the same time, but are packaged separately.

| (a) | 8714 91 10 |
| --- | --- |

(a)

| (b) | 8714 91 30 |
| --- | --- |

(b)

| (c) | 8714 92 10 |
| --- | --- |

(c)

Classification is determined by General Rules 1 and 6 for the interpretation of the Combined Nomenclature and by the wording of CN codes 8714 , 8714 91 , 8714 91 10 and 8714 91 30 , and 8714 92 and 8714 92 10 .

As the components put up together do not have the essential character of a complete bicycle, classification under subheading 8712 00 as an incomplete bicycle by application of General Interpretative Rule (GIR) 2(a) is excluded (see also the CN Explanatory Notes to subheading 8712 00 ).

As they are not packaged together, classification of the components as goods put up in sets for retail sale within the meaning of GIR 3(b) is excluded. Consequently, the components are to be classified separately.

The frame is therefore to be classified under CN code 8714 91 10 , the front fork under CN code 8714 91 30 and the rims under CN code 8714 92 10 .

---

| 9.2.2012 | EN | Official Journal of the European Union | L 36/21 |
| --- | --- | --- | --- |

9.2.2012

EN

Official Journal of the European Union

L 36/21

---

COMMISSION IMPLEMENTING REGULATION (EU) No 105/2012

of 7 February 2012

concerning the classification of certain goods in the Combined Nomenclature

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (1), and in particular Article 9(1)(a) thereof,

Whereas:

| (1) | In order to ensure uniform application of the Combined Nomenclature annexed to Regulation (EEC) No 2658/87, it is necessary to adopt measures concerning the classification of the goods referred to in the Annex to this Regulation. |
| --- | --- |

(1)

In order to ensure uniform application of the Combined Nomenclature annexed to Regulation (EEC) No 2658/87, it is necessary to adopt measures concerning the classification of the goods referred to in the Annex to this Regulation.

| (2) | Regulation (EEC) No 2658/87 has laid down the general rules for the interpretation of the Combined Nomenclature. Those rules apply also to any other nomenclature which is wholly or partly based on it or which adds any additional subdivision to it and which is established by specific provisions of the Union, with a view to the application of tariff and other measures relating to trade in goods. |
| --- | --- |

(2)

Regulation (EEC) No 2658/87 has laid down the general rules for the interpretation of the Combined Nomenclature. Those rules apply also to any other nomenclature which is wholly or partly based on it or which adds any additional subdivision to it and which is established by specific provisions of the Union, with a view to the application of tariff and other measures relating to trade in goods.

| (3) | Pursuant to those general rules, the goods described in column (1) of the table set out in the Annex should be classified under the CN code indicated in column (2), by virtue of the reasons set out in column (3) of that table. |
| --- | --- |

(3)

Pursuant to those general rules, the goods described in column (1) of the table set out in the Annex should be classified under the CN code indicated in column (2), by virtue of the reasons set out in column (3) of that table.

| (4) | The measures provided for in this Regulation are in accordance with the opinion of the Customs Code Committee, |
| --- | --- |

(4)

The measures provided for in this Regulation are in accordance with the opinion of the Customs Code Committee,

HAS ADOPTED THIS REGULATION:

Article 1

The goods described in column (1) of the table set out in the Annex shall be classified within the Combined Nomenclature under the CN code indicated in column (2) of that table.

Article 2

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 7 February 2012.

For the Commission, On behalf of the President,

Algirdas ŠEMETA

Member of the Commission

---

(1)  
  OJ L 256, 7.9.1987, p. 1.

1

---

ANNEX

| Description of the goods | Classification
  (CN code) | Reasons |
| --- | --- | --- |
| (1) | (2) | (3) |
| A multifunctional machine, with dimensions of approximately 62 × 76 × 98 cm and a weight of approximately 153 kg, comprising a scanner and an electrostatic print engine.
  It has a 150-page automatic page feeder for two-sided originals to be copied, 2 paper feeder trays, a control panel for the user, a RAM memory of 2,5 GB and an in-built hard disk of 80 GB. It is equipped with Ethernet, WLAN and USB interfaces.
  The machine is capable of performing the following functions:






  — | scanning, |

Description of the goods

Classification

(CN code)

Reasons

(1)

(2)

(3)

A multifunctional machine, with dimensions of approximately 62 × 76 × 98 cm and a weight of approximately 153 kg, comprising a scanner and an electrostatic print engine.

It has a 150-page automatic page feeder for two-sided originals to be copied, 2 paper feeder trays, a control panel for the user, a RAM memory of 2,5 GB and an in-built hard disk of 80 GB. It is equipped with Ethernet, WLAN and USB interfaces.

The machine is capable of performing the following functions:

—

scanning,

| — | printing and |
| --- | --- |

—

printing and

| — | digital copying. |
| --- | --- |

—

digital copying.

The machine can also send scanned documents via the Internet (so-called "e-mail/Internet faxing").

The machine is capable of reproducing up to 51 A4 pages per minute. It can also reduce or enlarge the images it scans (zoom 25 - 400 %). It has a scanning speed of 70 images per minute.

It has a print resolution of 1 200 × 1 200 dpi for text only and 600 × 600 dpi for images. The copy resolution is 600 × 600 dpi.

The machine operates either in an autonomous form as a copier, by scanning the original and printing the copies by means of the electrostatic print engine, or when connected to a network or an automatic data-processing machine as a printer, a scanner and for Internet faxing.

8443 31 80

Classification is determined by General Rules 1 and 6 for the interpretation of the Combined Nomenclature and the wording of CN codes 8443 , 8443 31 and 8443 31 80 .

Given its characteristics, none of the functions of the machine can be considered the principal one and therefore classification under subheading 8443 31 20 is excluded. The reproduction speed, the scanning speed, the existence of an automatic page feeder, the number of paper feeder trays, the control panel and the zoom function are not sufficient to consider digital copying as the principal function.

Indeed, the reproduction speed is the same for copying and printing as it depends on the print engine, which is used for both functions. The paper feeder trays are also used for both printing and copying. The scanning speed is relevant for both scanning and copying. The automatic page feeder and the control panel are used equally for copying, scanning and Internet faxing. The presence of the zoom function, which relates in particular to copying, is not sufficient to consider copying as the principal function.

Moreover, the machine's capacity to connect to an automatic data-processing (ADP) machine or to a network is an important feature as it allows for the printing and scanning of documents from/to the ADP machine and for sending them via the Internet.

Therefore, the machine is to be classified under CN code 8443 31 80 as other machines which perform two or more of the functions of printing, copying or facsimile transmission, not having digital copying as their principal function.

---

| 9.2.2012 | EN | Official Journal of the European Union | L 36/23 |
| --- | --- | --- | --- |

9.2.2012

EN

Official Journal of the European Union

L 36/23

---

COMMISSION IMPLEMENTING REGULATION (EU) No 106/2012

of 7 February 2012

concerning the classification of certain goods in the Combined Nomenclature

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (1), and in particular Article 9(1)(a) thereof,

Whereas:

| (1) | In order to ensure uniform application of the Combined Nomenclature annexed to Regulation (EEC) No 2658/87, it is necessary to adopt measures concerning the classification of the goods referred to in the Annex to this Regulation. |
| --- | --- |

(1)

In order to ensure uniform application of the Combined Nomenclature annexed to Regulation (EEC) No 2658/87, it is necessary to adopt measures concerning the classification of the goods referred to in the Annex to this Regulation.

| (2) | Regulation (EEC) No 2658/87 has laid down the general rules for the interpretation of the Combined Nomenclature. Those rules apply also to any other nomenclature which is wholly or partly based on it or which adds any additional subdivision to it and which is established by specific provisions of the Union, with a view to the application of tariff and other measures relating to trade in goods. |
| --- | --- |

(2)

Regulation (EEC) No 2658/87 has laid down the general rules for the interpretation of the Combined Nomenclature. Those rules apply also to any other nomenclature which is wholly or partly based on it or which adds any additional subdivision to it and which is established by specific provisions of the Union, with a view to the application of tariff and other measures relating to trade in goods.

| (3) | Pursuant to those general rules, the goods described in column (1) of the table set out in the Annex should be classified under the CN code indicated in column (2), by virtue of the reasons set out in column (3) of that table. |
| --- | --- |

(3)

Pursuant to those general rules, the goods described in column (1) of the table set out in the Annex should be classified under the CN code indicated in column (2), by virtue of the reasons set out in column (3) of that table.

| (4) | It is appropriate to provide that binding tariff information which has been issued by the customs authorities of Member States in respect of the classification of goods in the Combined Nomenclature but which is not in accordance with this Regulation can, for a period of three months, continue to be invoked by the holder, under Article 12(6) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (2). |
| --- | --- |

(4)

It is appropriate to provide that binding tariff information which has been issued by the customs authorities of Member States in respect of the classification of goods in the Combined Nomenclature but which is not in accordance with this Regulation can, for a period of three months, continue to be invoked by the holder, under Article 12(6) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (2).

| (5) | The measures provided for in this Regulation are in accordance with the opinion of the Customs Code Committee, |
| --- | --- |

(5)

The measures provided for in this Regulation are in accordance with the opinion of the Customs Code Committee,

HAS ADOPTED THIS REGULATION:

Article 1

The goods described in column (1) of the table set out in the Annex shall be classified within the Combined Nomenclature under the CN code indicated in column (2) of that table.

Article 2

Binding tariff information issued by the customs authorities of Member States, which is not in accordance with this Regulation, can continue to be invoked for a period of three months under Article 12(6) of Regulation (EEC) No 2913/92.

Article 3

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 7 February 2012.

For the Commission, On behalf of the President,

Algirdas ŠEMETA

Member of the Commission

---

(1)  
  OJ L 256, 7.9.1987, p. 1.

1

(2)  
  OJ L 302, 19.10.1992, p. 1.

2

---

ANNEX

| Description of the goods | Classification
  (CN code) | Reasons |
| --- | --- | --- |
| (1) | (2) | (3) |
| A metal disc-shaped device with a diameter of approximately 8 cm and a thickness of 2 cm (so-called "round recliner").
  The device has an uneven surface with a central shaft hole and it consists of the following:






  — | a guide plate, |

Description of the goods

Classification

(CN code)

Reasons

(1)

(2)

(3)

A metal disc-shaped device with a diameter of approximately 8 cm and a thickness of 2 cm (so-called "round recliner").

The device has an uneven surface with a central shaft hole and it consists of the following:

—

a guide plate,

| — | a spiral spring, |
| --- | --- |

—

a spiral spring,

| — | a hinge cam, |
| --- | --- |

—

a hinge cam,

| — | a slide cam, |
| --- | --- |

—

a slide cam,

| — | two slide pawls, |
| --- | --- |

—

two slide pawls,

| — | a ratchet, and |
| --- | --- |

—

a ratchet, and

| — | a ring plate. |
| --- | --- |

—

a ring plate.

It is a component of reclining mechanisms for motor vehicle seats.

The device is used to adjust the angle of the seat back according to the needs of the driver or passengers and contributes to the strength of the seat.

(*1) See image

9401 90 80

Classification is determined by General Rules 1 and 6 for the interpretation of the Combined Nomenclature and by the wording of CN codes 9401 , 9401 90 and 9401 90 80 .

Given its characteristics, namely its accurate mechanical construction with several different components, the device is specifically designed to be an essential part of a reclining mechanism of a motor vehicle seat. Consequently, classification as metal mountings, fittings or similar articles under heading 8302 is excluded (see also the HS Explanatory Notes to heading 8302 , first paragraph).

Consequently, the device is considered to be a part of a reclining mechanism of a motor vehicle seat.

The device is therefore to be classified under CN code 9401 90 80 as other parts of seats of a kind used for motor vehicles.

---

(*1)  The image is purely for information

---

| 9.2.2012 | EN | Official Journal of the European Union | L 36/25 |
| --- | --- | --- | --- |

9.2.2012

EN

Official Journal of the European Union

L 36/25

---

COMMISSION IMPLEMENTING REGULATION (EU) No 107/2012

of 8 February 2012

amending the Annex to Regulation (EU) No 37/2010 on pharmacologically active substances and their classification regarding maximum residue limits in foodstuffs of animal origin, as regards the substance octenidine dihydrochloride

(Text with EEA relevance)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EC) No 470/2009 of the European Parliament and of the Council of 6 May 2009 laying down Community procedures for the establishment of residue limits of pharmacologically active substances in foodstuffs of animal origin, repealing Council Regulation (EEC) No 2377/90 and amending Directive 2001/82/EC of the European Parliament and of the Council and Regulation (EC) No 726/2004 of the European Parliament and of the Council (1), and in particular Article 14 in conjunction with Article 17 thereof,

Having regard to the opinion of the European Medicines Agency formulated by the Committee for Medicinal Products for Veterinary Use,

Whereas:

| (1) | The maximum residue limit for pharmacologically active substances intended for use in the Union in veterinary medicinal products for food-producing animals or in biocidal products used in animal husbandry should be established in accordance with Regulation (EC) No 470/2009. |
| --- | --- |

(1)

The maximum residue limit for pharmacologically active substances intended for use in the Union in veterinary medicinal products for food-producing animals or in biocidal products used in animal husbandry should be established in accordance with Regulation (EC) No 470/2009.

| (2) | Pharmacologically active substances and their classification regarding maximum residue limits in foodstuffs of animal origin are set out in the Annex to Commission Regulation (EU) No 37/2010 of 22 December 2009 on pharmacologically active substances and their classification regarding maximum residue limits in foodstuffs of animal origin (2). |
| --- | --- |

(2)

Pharmacologically active substances and their classification regarding maximum residue limits in foodstuffs of animal origin are set out in the Annex to Commission Regulation (EU) No 37/2010 of 22 December 2009 on pharmacologically active substances and their classification regarding maximum residue limits in foodstuffs of animal origin (2).

| (3) | An application for the establishment of maximum residue limits (hereinafter ‧MRL‧) for octenidine dihydrochloride for cutaneous use in all mammalian food-producing species has been submitted to the European Medicines Agency. |
| --- | --- |

(3)

An application for the establishment of maximum residue limits (hereinafter ‧MRL‧) for octenidine dihydrochloride for cutaneous use in all mammalian food-producing species has been submitted to the European Medicines Agency.

| (4) | The Committee for Medicinal Products for Veterinary Use has recommended that there is no need to establish an MRL for octenidine dihydrochloride in all mammalian food-producing species, for cutaneous use only. |
| --- | --- |

(4)

The Committee for Medicinal Products for Veterinary Use has recommended that there is no need to establish an MRL for octenidine dihydrochloride in all mammalian food-producing species, for cutaneous use only.

| (5) | Table 1 of the Annex to Regulation (EU) No 37/2010 should therefore be amended to include the substance octenidine dihydrochloride for cutaneous use in all mammalian food-producing species. |
| --- | --- |

(5)

Table 1 of the Annex to Regulation (EU) No 37/2010 should therefore be amended to include the substance octenidine dihydrochloride for cutaneous use in all mammalian food-producing species.

| (6) | The measures provided for in this Regulation are in accordance with the opinion of the Standing Committee on Veterinary Medicinal Products, |
| --- | --- |

(6)

The measures provided for in this Regulation are in accordance with the opinion of the Standing Committee on Veterinary Medicinal Products,

HAS ADOPTED THIS REGULATION:

Article 1

The Annex to Regulation (EU) No 37/2010 is amended as set out in the Annex to this Regulation.

Article 2

This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 8 February 2012.

For the Commission

The President

José Manuel BARROSO

---

(1)  
  OJ L 152, 16.6.2009, p. 11.

1

(2)  
  OJ L 15, 20.1.2010, p. 1.

2

---

ANNEX

In Table 1 of the Annex to Regulation (EU) No 37/2010, the following substance is inserted in alphabetical order:

| Pharmacologically active Substance | Marker residue | Animal Species | MRL | Target Tissues | Other Provisions (according to Article 14(7) of Regulation (EC) No 470/2009) | Therapeutic Classification |
| --- | --- | --- | --- | --- | --- | --- |
| ‧Octenidine dihydrochloride | Not applicable | All mammalian food-producing species | No MRL required | Not applicable | For cutaneous use only. | Anti-infectious agents/Antiseptics‧ |

Pharmacologically active Substance

Marker residue

Animal Species

MRL

Target Tissues

Other Provisions (according to Article 14(7) of Regulation (EC) No 470/2009)

Therapeutic Classification

‧Octenidine dihydrochloride

Not applicable

All mammalian food-producing species

No MRL required

Not applicable

For cutaneous use only.

Anti-infectious agents/Antiseptics‧

---

| 9.2.2012 | EN | Official Journal of the European Union | L 36/27 |
| --- | --- | --- | --- |

9.2.2012

EN

Official Journal of the European Union

L 36/27

---

COMMISSION IMPLEMENTING REGULATION (EU) No 108/2012

of 8 February 2012

establishing the standard import values for determining the entry price of certain fruit and vegetables

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (1),

Having regard to Commission Implementing Regulation (EU) No 543/2011 of 7 June 2011 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors (2), and in particular Article 136(1) thereof,

Whereas:

| (1) | Implementing Regulation (EU) No 543/2011 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in Annex XVI, Part A thereto. |
| --- | --- |

(1)

Implementing Regulation (EU) No 543/2011 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in Annex XVI, Part A thereto.

| (2) | The standard import value is calculated each working day, in accordance with Article 136(1) of Implementing Regulation (EU) No 543/2011, taking into account variable daily data. Therefore this Regulation should enter into force on the day of its publication in the Official Journal of the European Union, |
| --- | --- |

(2)

The standard import value is calculated each working day, in accordance with Article 136(1) of Implementing Regulation (EU) No 543/2011, taking into account variable daily data. Therefore this Regulation should enter into force on the day of its publication in the Official Journal of the European Union,

HAS ADOPTED THIS REGULATION:

Article 1

The standard import values referred to in Article 136 of Implementing Regulation (EU) No 543/2011 are fixed in the Annex to this Regulation.

Article 2

This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 8 February 2012.

For the Commission, On behalf of the President,

José Manuel SILVA RODRÍGUEZ

Director-General for Agriculture and Rural Development

---

(1)  
  OJ L 299, 16.11.2007, p. 1.

1

(2)  
  OJ L 157, 15.6.2011, p. 1.

2

---

ANNEX

Standard import values for determining the entry price of certain fruit and vegetables

| (EUR/100 kg) |
| --- |
| CN code | Third country code (1) | Standard import value |
| 0702 00 00 | IL | 156,8 |
| MA | 56,6 |
| TN | 76,7 |
| TR | 130,2 |
| ZZ | 105,1 |
| 0707 00 05 | EG | 229,9 |
| JO | 137,5 |
| TR | 174,7 |
| US | 57,6 |
| ZZ | 149,9 |
| 0709 91 00 | EG | 330,9 |
| ZZ | 330,9 |
| 0709 93 10 | MA | 94,6 |
| TR | 141,0 |
| ZZ | 117,8 |
| 0805 10 20 | EG | 50,0 |
| IL | 78,7 |
| MA | 54,6 |
| TN | 53,8 |
| TR | 74,5 |
| ZZ | 62,3 |
| 0805 20 10 | IL | 138,0 |
| MA | 83,0 |
| ZZ | 110,5 |
| 0805 20 30 , 0805 20 50 , 0805 20 70 , 0805 20 90 | CN | 60,2 |
| IL | 97,6 |
| JM | 98,5 |
| KR | 94,1 |
| MA | 111,3 |
| TR | 75,1 |
| ZZ | 89,5 |
| 0805 50 10 | EG | 46,1 |
| TR | 54,8 |
| ZZ | 50,5 |
| 0808 10 80 | CA | 130,0 |
| CL | 98,4 |
| CN | 109,0 |
| MA | 59,2 |
| MK | 31,8 |
| US | 145,7 |
| ZZ | 95,7 |
| 0808 30 90 | CL | 141,4 |
| CN | 51,0 |
| US | 120,5 |
| ZA | 105,1 |
| ZZ | 104,5 |

(EUR/100 kg)

CN code

Third country code (1)

Standard import value

0702 00 00

IL

156,8

MA

56,6

TN

76,7

TR

130,2

ZZ

105,1

0707 00 05

EG

229,9

JO

137,5

TR

174,7

US

57,6

ZZ

149,9

0709 91 00

EG

330,9

ZZ

330,9

0709 93 10

MA

94,6

TR

141,0

ZZ

117,8

0805 10 20

EG

50,0

IL

78,7

MA

54,6

TN

53,8

TR

74,5

ZZ

62,3

0805 20 10

IL

138,0

MA

83,0

ZZ

110,5

0805 20 30 , 0805 20 50 , 0805 20 70 , 0805 20 90

CN

60,2

IL

97,6

JM

98,5

KR

94,1

MA

111,3

TR

75,1

ZZ

89,5

0805 50 10

EG

46,1

TR

54,8

ZZ

50,5

0808 10 80

CA

130,0

CL

98,4

CN

109,0

MA

59,2

MK

31,8

US

145,7

ZZ

95,7

0808 30 90

CL

141,4

CN

51,0

US

120,5

ZA

105,1

ZZ

104,5

---

(1)  Nomenclature of countries laid down by Commission Regulation (EC) No 1833/2006 (OJ L 354, 14.12.2006, p. 19). Code ‘
  ZZ
  ’ stands for ‘of other origin’.

---

DECISIONS

| 9.2.2012 | EN | Official Journal of the European Union | L 36/29 |
| --- | --- | --- | --- |

9.2.2012

EN

Official Journal of the European Union

L 36/29

---

COMMISSION IMPLEMENTING DECISION

of 7 February 2012

on a financial contribution from the Union towards emergency measures to combat, in 2011, swine vesicular disease in Italy and classical swine fever in Lithuania

(notified under document C(2012) 577)

(Only the Italian and Lithuanian texts are authentic)

(2012/72/EU)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Council Decision 2009/470/EC of 25 May 2009 on expenditure in the veterinary field (1), and in particular Article 3 thereof,

Whereas:

| (1) | Swine vesicular disease is an infectious viral disease of pigs causing disturbance to trade and export to third countries. |
| --- | --- |

(1)

Swine vesicular disease is an infectious viral disease of pigs causing disturbance to trade and export to third countries.

| (2) | Classical swine fever is an infectious viral disease of pigs and wild boar which causes disturbance to intra-Union trade and export to third countries. |
| --- | --- |

(2)

Classical swine fever is an infectious viral disease of pigs and wild boar which causes disturbance to intra-Union trade and export to third countries.

| (3) | In the event of an outbreak of swine vesicular disease, there is a risk that the disease agent might spread to other pig holdings within that Member State, but also to other Member States and to third countries through trade in live pigs or their products. |
| --- | --- |

(3)

In the event of an outbreak of swine vesicular disease, there is a risk that the disease agent might spread to other pig holdings within that Member State, but also to other Member States and to third countries through trade in live pigs or their products.

| (4) | In the event of an outbreak of classical swine fever, there is a risk that the disease agent might spread to other pig holdings within that Member State, but also to other Member States and to third countries through trade in live pigs, their products, semen, ova and embryos. |
| --- | --- |

(4)

In the event of an outbreak of classical swine fever, there is a risk that the disease agent might spread to other pig holdings within that Member State, but also to other Member States and to third countries through trade in live pigs, their products, semen, ova and embryos.

| (5) | Council Directive 92/119/EEC of 17 December 1992 introducing general Community measures for the control of certain animal diseases and specific measures relating to swine vesicular disease (2) sets out measures which in the event of an outbreak have to be immediately applied by Member States to prevent further spread of the virus. |
| --- | --- |

(5)

Council Directive 92/119/EEC of 17 December 1992 introducing general Community measures for the control of certain animal diseases and specific measures relating to swine vesicular disease (2) sets out measures which in the event of an outbreak have to be immediately applied by Member States to prevent further spread of the virus.

| (6) | Council Directive 2001/89/EC of 23 October 2001 on Community measures for the control of classical swine fever (3) lays down the measures to be immediately applied in the event of an outbreak by Member States to prevent further spread of the virus. |
| --- | --- |

(6)

Council Directive 2001/89/EC of 23 October 2001 on Community measures for the control of classical swine fever (3) lays down the measures to be immediately applied in the event of an outbreak by Member States to prevent further spread of the virus.

| (7) | Decision 2009/470/EC lays down the procedures governing the financial contribution from the Union towards specific veterinary measures, including emergency measures. Pursuant to Article 3(2) of that Decision, Member States shall obtain a financial contribution towards the costs of certain measures to eradicate communicable diseases listed in Article 3(1). |
| --- | --- |

(7)

Decision 2009/470/EC lays down the procedures governing the financial contribution from the Union towards specific veterinary measures, including emergency measures. Pursuant to Article 3(2) of that Decision, Member States shall obtain a financial contribution towards the costs of certain measures to eradicate communicable diseases listed in Article 3(1).

| (8) | Article 3(6) first indent of Decision 2009/470/EC lays down rules on the percentage of the costs incurred by the Member State that may be covered by the financial contribution from the Union. |
| --- | --- |

(8)

Article 3(6) first indent of Decision 2009/470/EC lays down rules on the percentage of the costs incurred by the Member State that may be covered by the financial contribution from the Union.

| (9) | The payment of a financial contribution from the Union towards emergency measures to eradicate communicable diseases listed in Article 3(1) is subject to the rules laid down in Commission Regulation (EC) No 349/2005 of 28 February 2005 laying down rules on the Community financing of emergency measures and of the campaign to combat certain animal diseases under Council Decision 90/424/EEC (4). |
| --- | --- |

(9)

The payment of a financial contribution from the Union towards emergency measures to eradicate communicable diseases listed in Article 3(1) is subject to the rules laid down in Commission Regulation (EC) No 349/2005 of 28 February 2005 laying down rules on the Community financing of emergency measures and of the campaign to combat certain animal diseases under Council Decision 90/424/EEC (4).

| (10) | Outbreaks of swine vesicular disease occurred in Italy in 2011. The authorities of Italy informed the Commission and the other Member States in the framework of the Standing Committee on the Food Chain and Animal Health of the measures applied in accordance with Union legislation on notification and eradication of the disease and the results thereof. |
| --- | --- |

(10)

Outbreaks of swine vesicular disease occurred in Italy in 2011. The authorities of Italy informed the Commission and the other Member States in the framework of the Standing Committee on the Food Chain and Animal Health of the measures applied in accordance with Union legislation on notification and eradication of the disease and the results thereof.

| (11) | Outbreaks of classical swine fever occurred in Lithuania in 2011. The authorities of Lithuania informed the Commission and the other Member States in the framework of the Standing Committee on the Food Chain and Animal Health of the measures applied in accordance with Union legislation on notification and eradication of the disease and the results thereof. |
| --- | --- |

(11)

Outbreaks of classical swine fever occurred in Lithuania in 2011. The authorities of Lithuania informed the Commission and the other Member States in the framework of the Standing Committee on the Food Chain and Animal Health of the measures applied in accordance with Union legislation on notification and eradication of the disease and the results thereof.

| (12) | The authorities of Italy and Lithuania have therefore fulfilled their technical and administrative obligations with regard to the measures provided for in Article 3(2) of Decision 2009/470/EC and Article 6 of Regulation (EC) No 349/2005. |
| --- | --- |

(12)

The authorities of Italy and Lithuania have therefore fulfilled their technical and administrative obligations with regard to the measures provided for in Article 3(2) of Decision 2009/470/EC and Article 6 of Regulation (EC) No 349/2005.

| (13) | At this stage, the exact amount of the financial contribution from the Union cannot be determined as the information on the cost of compensation and on operational expenditure provided are estimates. Because of the large amount involved a first tranche should be fixed for Lithuania. |
| --- | --- |

(13)

At this stage, the exact amount of the financial contribution from the Union cannot be determined as the information on the cost of compensation and on operational expenditure provided are estimates. Because of the large amount involved a first tranche should be fixed for Lithuania.

| (14) | The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health, |
| --- | --- |

(14)

The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,

HAS ADOPTED THIS DECISION:

Article 1

Financial contribution from the Union to Italy

1.   A financial contribution from the Union shall be granted to Italy towards the costs incurred by this Member State in taking measures pursuant to Article 3(2) and (6) of Decision 2009/470/EC, to combat swine vesicular disease in Italy in 2011.

2.   The amount of the financial contribution mentioned in paragraph 1 shall be fixed in a subsequent decision to be adopted in accordance with the procedure established in Article 40(2) of Decision 2009/470/EC.

Article 2

Financial contribution from the Union to Lithuania

1.   A financial contribution from the Union shall be granted to Lithuania towards the costs incurred by this Member State in taking measures pursuant to Article 3(2) and (6) of Decision 2009/470/EC, to combat classical swine fever in Lithuania in 2011.

2.   The amount of the financial contribution mentioned in paragraph 1 shall be fixed in a subsequent decision to be adopted in accordance with the procedure established in Article 40(2) of Decision 2009/470/EC.

Article 3

Payment arrangements

A first tranche of EUR 700 000,00 shall be paid to Lithuania as part of the Union financial contribution provided for in Article 2(1).

Article 4

Addressees

This Decision is addressed to the Italian Republic and the Republic of Lithuania.

Done at Brussels, 7 February 2012.

For the Commission

John DALLI

Member of the Commission

---

(1)  
  OJ L 155, 18.6.2009, p. 30.

1

(2)  
  OJ L 62, 15.3.1993, p. 69.

2

(3)  
  OJ L 316, 1.12.2001, p. 5.

3

(4)  
  OJ L 55, 1.3.2005, p. 12.

4

---

RECOMMENDATIONS

| 9.2.2012 | EN | Official Journal of the European Union | L 36/31 |
| --- | --- | --- | --- |

9.2.2012

EN

Official Journal of the European Union

L 36/31

---

COMMISSION RECOMMENDATION

of 6 February 2012

on data protection guidelines for the Early Warning and Response System (EWRS)

(notified under document C(2012) 568)

(Text with EEA relevance)

(2012/73/EU)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 292 thereof,

After consulting the European Data Protection Supervisor,

Whereas:

| (1) | Decision No 2119/98/EC of the European Parliament and of the Council of 24 September 1998 setting up a network for the epidemiological surveillance and control of communicable diseases in the Community (1) established a network for the epidemiological surveillance and control of communicable diseases in the Community and an early warning and response system (hereinafter, the ‘EWRS’) for the prevention and control of these diseases. |
| --- | --- |

(1)

Decision No 2119/98/EC of the European Parliament and of the Council of 24 September 1998 setting up a network for the epidemiological surveillance and control of communicable diseases in the Community (1) established a network for the epidemiological surveillance and control of communicable diseases in the Community and an early warning and response system (hereinafter, the ‘EWRS’) for the prevention and control of these diseases.

| (2) | In its Decision 2000/57/EC of 22 December 1999 on the early warning and response system for the prevention and control of communicable diseases under Decision No 2119/98/EC of the European Parliament and of the Council (2) the Commission adopted implementing provisions on the EWRS, whose aim is to bring into structured and permanent communication with one another, through appropriate means, the Commission and the competent public health authorities responsible in Member States of the European Economic Area for determining the measures which may be required to protect public health and to prevent and halt the spread of communicable diseases (3). |
| --- | --- |

(2)

In its Decision 2000/57/EC of 22 December 1999 on the early warning and response system for the prevention and control of communicable diseases under Decision No 2119/98/EC of the European Parliament and of the Council (2) the Commission adopted implementing provisions on the EWRS, whose aim is to bring into structured and permanent communication with one another, through appropriate means, the Commission and the competent public health authorities responsible in Member States of the European Economic Area for determining the measures which may be required to protect public health and to prevent and halt the spread of communicable diseases (3).

| (3) | The right to personal data protection is recognised by the Charter of Fundamental Rights of the European Union, in particular in Article 8 thereof. |
| --- | --- |

(3)

The right to personal data protection is recognised by the Charter of Fundamental Rights of the European Union, in particular in Article 8 thereof.

| (4) | Moreover, the exchange of information by electronic means between the Member States, and between the Member States and the Commission, must comply with the rules on the protection of personal data laid down in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (4), and in Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (5). |
| --- | --- |

(4)

Moreover, the exchange of information by electronic means between the Member States, and between the Member States and the Commission, must comply with the rules on the protection of personal data laid down in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (4), and in Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (5).

| (5) | Commission Decision 2009/547/EC of 10 July 2009 amending Decision 2000/57/EC on the early warning and response system for the prevention and control of communicable diseases under Decision No 2119/98/EC of the European Parliament and of the Council (6) introduced specific safeguards for the exchange of personal data between Member States in the course of contact tracing procedures for the identification of infected persons and of persons potentially in danger, in the occurrence of an event related to communicable diseases having a potential EU dimension. |
| --- | --- |

(5)

Commission Decision 2009/547/EC of 10 July 2009 amending Decision 2000/57/EC on the early warning and response system for the prevention and control of communicable diseases under Decision No 2119/98/EC of the European Parliament and of the Council (6) introduced specific safeguards for the exchange of personal data between Member States in the course of contact tracing procedures for the identification of infected persons and of persons potentially in danger, in the occurrence of an event related to communicable diseases having a potential EU dimension.

| (6) | On 26 April 2010, the European Data Protection Supervisor (hereinafter referred to as the ‘EDPS’) issued a Prior Checking Opinion (7) where it called for a clarification of the responsibilities of the various actors involved in the EWRS, and for properly addressing the potential risks posed to fundamental rights by the processing of contact tracing data on a larger scale, in the event of major pandemic health threats occurring in the future. |
| --- | --- |

(6)

On 26 April 2010, the European Data Protection Supervisor (hereinafter referred to as the ‘EDPS’) issued a Prior Checking Opinion (7) where it called for a clarification of the responsibilities of the various actors involved in the EWRS, and for properly addressing the potential risks posed to fundamental rights by the processing of contact tracing data on a larger scale, in the event of major pandemic health threats occurring in the future.

| (7) | Taking into account the recommendations made by the EDPS in its Opinion, the Commission has developed a set of data protection guidelines for the EWRS, which should help to clarify the respective roles, tasks and obligations of the various actors of the system and in that way guarantee effective compliance with the abovementioned data protection rules and ensure the provision of clear information and easily available mechanisms for data subjects to assert their rights, |
| --- | --- |

(7)

Taking into account the recommendations made by the EDPS in its Opinion, the Commission has developed a set of data protection guidelines for the EWRS, which should help to clarify the respective roles, tasks and obligations of the various actors of the system and in that way guarantee effective compliance with the abovementioned data protection rules and ensure the provision of clear information and easily available mechanisms for data subjects to assert their rights,

HAS ADOPTED THIS RECOMMENDATION:

| 1. | Member States should draw the attention of users of the EWRS on the guidelines in the Annex to this Recommendation. |
| --- | --- |

1.

| 2. | EWRS national competent authorities should be encouraged to make contacts with their national Data Protection Authorities for guidance and assistance on the best way to implement these guidelines under national law. |
| --- | --- |

2.

| 3. | Member States are recommended to provide feedback to the European Commission on the implementation of the guidelines in the Annex, not later than 2 years after the adoption of this Recommendation. This feedback will be shared with the EDPS and will be taken into account by the Commission to assess the level of data protection in the EWRS as well as the content and timeliness of any future measures, including the possible adoption of a legal instrument. |
| --- | --- |

3.

| 4. | This Recommendation is addressed to the Member States. |
| --- | --- |

4.

Done at Brussels, 6 February 2012.

For the Commission

John DALLI

Member of the Commission

---

(1)  
  OJ L 268, 3.10.1998, p. 1.

1

(2)  
  OJ L 21, 26.1.2000, p. 32.

2

(3)  The EWRS is reserved to the reporting, by the competent public health authorities of the Member States, of specified threats to public health (‘events’) as defined in Annex I to Decision 2000/57/EC cited.

3

(4)  
  OJ L 281, 23.11.1995, p. 31.

4

(5)  
  OJ L 8, 12.1.2001, p. 1.

5

(6)  
  OJ L 181, 14.7.2009, p. 57.

6

(7)  Prior Checking Opinion of 26 April 2010 of the European Data Protection Supervisor on the Early Warning and Response System notified by the European Commission on 18 February 2009 (case C 2009-0137). The Opinion is published on the EDPS website at the following address: http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/Supervision/Priorchecks/Opinions/2010/10-04-26_EWRS_EN.pdf

7

---

ANNEX

DATA PROTECTION GUIDELINES FOR THE EARLY WARNING AND RESPONSE SYSTEM (EWRS)

1.   INTRODUCTION

The EWRS is a web-based application designed by the European Commission, in cooperation with the Member States, with the aim to bring into structured and permanent communication with one another the Commission and the competent public health authorities responsible in EEA Member States for determining the measures required to protect public health. The European Centre for Disease Prevention and Control (hereinafter, the ‘ECDC’), an EU agency, is also connected to the EWRS since 2005 (1).

Cooperation between national health authorities is vital for enhancing Member States’s capacity to prevent the potential spread of communicable diseases within the EU, as well as their readiness to respond in a coordinated and timely manner to events caused by communicable diseases which are, or have the potential to become, public health threats.

Previous outbreaks of SARS, Pandemic Influenza A(H1N1) and other communicable diseases have clearly demonstrated how previously unknown diseases may spread rapidly, causing high mortality and morbidity. Fast travel and global trade facilitate the transmission of communicable diseases, which do not recognise borders. Early detection and efficient communication and coordination at the European and international level are essential to control such contingencies and to prevent seriously prejudicial developments.

The EWRS has been designed as a centralised mechanism to enable Member States to send alerts, share information and coordinate their response, in a timely and secure manner, in relation to events posing a potential health threat on the EU.

2.   SCOPE AND OBJECTIVES OF THE GUIDELINES

The management and use of the EWRS may involve the exchange of personal data in specific cases where the relevant legal instruments so provide (see Section 4 on the legal grounds for the exchange of personal information in the EWRS).

Personal information exchanges between the competent health authorities in the Member States must comply with the rules on personal data protection laid down in the national laws transposing Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data.

However, since EWRS users are not data protection experts and may not always be sufficiently aware of data protection requirements imposed by law, it is advisable to provide EWRS users with guidelines in which the functioning of the EWRS from a data protection perspective is explained in a user-friendly and easily understandable manner. The guidelines also aim to raise awareness and promote best practices and a consistent and uniform approach to data protection compliance among EWRS users in the Member States.

However, it should be noted that these guidelines are not intended to provide a comprehensive review of all data protection issues in connection with the EWRS. Further guidance and assistance may be obtained from the data protection authorities (hereinafter ‘DPAs’) in the Member States. In particular, EWRS users are strongly encouraged to seek advice from their respective DPAs on the best way to implement these guidelines at the national level, so as to ensure that the country-specific data protection requirements are fully complied with. A list of DPAs and their contact details can be found at the following address:

http://ec.europa.eu/justice/policies/privacy/nationalcomm/index_en.htm

Finally it has to be stressed that these guidelines are not an authentic interpretation of EU Law on data protection as in the institutional system of the Union the task to interpret EU law is exclusively conferred to the Court of justice.

3.   APPLICABLE LAW AND SUPERVISION

Determination of the applicable law depends on who the EWRS user is. In particular, the processing of personal data by the Commission and the ECDC within the framework of the system management and operation (to the extent illustrated in the following sections) is governed by Regulation (EC) No 45/2001.

As regards the processing of personal data by EWRS national competent authorities, the applicable law is the relevant national data protection legislation transposing Directive 95/46/EC. It should be noted that this Directive leaves a certain margin of manoeuvre to the Member States to transpose its provisions into national law. In particular, the Directive allows Member States to introduce exemptions or derogations to a number of its provisions in specific cases. At the same time, the national data protection law to which the EWRS user is subject may set out more stringent or country-specific data protection requirements not foreseen by the laws of other Member States.

In consideration of these peculiarities, EWRS users are advised to discuss these guidelines with their respective DPAs to ensure that all requirements posed by the applicable national laws are met. For instance, the detail of information to be provided to data subjects at the time of data collection may differ significantly from one Member State to another, as well as the rules for the processing of special categories of personal data (e.g. health data) of individuals.

One of the main features of the EU data protection legal framework consisting of Regulation (EC) No 45/2001 and Directive 95/46/EC is its supervision by public, independent data protection authorities. The processing of personal data by EU institutions and bodies is supervised by the European Data Protection Supervisor (hereinafter referred to as the ‘EDPS’) (2), whereas the processing by natural or legal persons, national public authorities, agencies or other bodies in the Member States is supervised by their respective DPAs. Supervisory authorities have been empowered in all Member States to hear claims lodged by citizens concerning the protection of their rights and freedoms in regard to the processing of personal data. For more detailed information on how to deal with data subjects’ requests or complaints, EWRS users are invited to refer to Section 9 on access to personal data and other rights of data subjects.

4.   LEGAL GROUNDS FOR THE EXCHANGE OF PERSONAL INFORMATION IN THE EWRS

Decision No 2119/98/EC established the setting up of a network at EU level (hereinafter, the ‘Network’) to promote cooperation and coordination between the Member States, with the assistance of the Commission, with a view to improving the prevention and control of communicable diseases in the EU (3). Within this framework, the EWRS was set up as one of the pillars of the Network, allowing for the exchange of information, consultation and coordination at the European level in the occurrence of events caused by communicable diseases having the potential to endanger public health in the EU.

It should be noted that not all information exchanged within the EWRS is of a personal nature. Actually, in general, no health-related or other personal data of identified or identifiable natural persons is exchanged in this framework.

What is ‘personal data’?

For the purposes of Directive 95/46/EC and Regulation (EC) No 45/2001, personal data shall mean any information relating to an identified or identifiable natural person (‘data subject’); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity (4).

The competent health authorities in EEA Member States mostly communicate to the Network, through the EWRS, information regarding — inter alia — the appearance or resurgence of cases of communicable diseases, together with information on control measures applied, or information on unusual epidemic phenomena or new communicable diseases of unknown origin (5), which may require timely and coordinated action by the Member States to contain the risk of propagation within the EU (6). On the basis of the information available through the Network, Member States will consult each other in liaison with the Commission with a view to coordinating their efforts for the prevention and control of those diseases, including with regard to the measures they have adopted or intend to adopt at national level (7).

However, in some cases, the information exchanged through the system does actually concern individuals and can be considered personal data.

First of all, the processing of a limited amount of personal data of EWRS authorised users is inherent in the system management and operation. Indeed, processing of the users’ contact details (name, organisation, e-mail address, telephone number, etc.) is essential in order to set up and run the system. These personal data are collected by the Member States, and further processed under the Commission’s responsibility, solely for the purposes of cooperating effectively on the management of the EWRS and the underlying Network.

More importantly, the occurrence of an event related to communicable diseases with a potential EU dimension may require the implementation of particular control measures, the so called ‘contact tracing’ measures, by the affected Member States in collaboration with each other, in order to identify infected persons and persons potentially in danger and to prevent the transmission of serious communicable diseases. Such collaboration may involve the exchange through the EWRS of personal data, including sensitive health data, of confirmed or suspected human cases between the Member States directly concerned by the contact tracing measures (8).

What is ‘processing of personal data’?

For the purposes of Directive 95/46/EC and Regulation (EC) No 45/2001, processing of personal data shall mean any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction (9).

In the abovementioned cases, the processing of personal data within the EWRS must be justified on the basis of specific legal grounds. In this regard, Article 7 of Directive 95/46/EC, and the corresponding provisions of Article 5 of Regulation (EC) No 45/2001, set out the criteria for making data processing legitimate.

With regard to the contact details of EWRS users, processing of these data is based on:

| — | Article 5(b) of Regulation (EC) No 45/2001: ‘processing is necessary for compliance with a legal obligation to which the controller (10) is subject’. The processing is necessary for the management and operation of the EWRS by the Commission, with support from the ECDC, and |
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Article 5(b) of Regulation (EC) No 45/2001: ‘processing is necessary for compliance with a legal obligation to which the controller (10) is subject’. The processing is necessary for the management and operation of the EWRS by the Commission, with support from the ECDC, and

| — | Article 5(d) of Regulation (EC) No 45/2001: ‘the data subject has unambiguously given his or her consent’. Contact details of users are obtained from the data subjects themselves, after having put them in the conditions to signify an informed agreement to their personal data being processed within the EWRS (see Section 8 on the provision of information to data subjects). |
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Article 5(d) of Regulation (EC) No 45/2001: ‘the data subject has unambiguously given his or her consent’. Contact details of users are obtained from the data subjects themselves, after having put them in the conditions to signify an informed agreement to their personal data being processed within the EWRS (see Section 8 on the provision of information to data subjects).

The criteria laid down in Article 7(c), (d), and (e) of Directive 95/46/EC are the most relevant for the exchange of contact tracing data (e.g. contact details of the infected person, conveyance and other data related to the person’s travel itinerary and places of stay, information on visited persons and persons potentially exposed to contamination) of individuals within the EWRS (11):

| — | Article 7(c) of Directive 95/46/EC: ‘processing is necessary for compliance with a legal obligation to which the controller is subject’. The establishment of an early warning and response system for the prevention and control of communicable diseases in the EU is required by Decision No 2119/98/EC. This Decision poses an obligation on the Member States to report through the EWRS certain events caused by communicable diseases which are, or have the potential to become, public health threats (12). The reporting obligation covers also the measures taken by the competent authorities in the concerned Member States to prevent and halt the spread of those diseases, including the contact tracing measures implemented to trace infected persons or those who are potentially in danger of being infected (13), |
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Article 7(c) of Directive 95/46/EC: ‘processing is necessary for compliance with a legal obligation to which the controller is subject’. The establishment of an early warning and response system for the prevention and control of communicable diseases in the EU is required by Decision No 2119/98/EC. This Decision poses an obligation on the Member States to report through the EWRS certain events caused by communicable diseases which are, or have the potential to become, public health threats (12). The reporting obligation covers also the measures taken by the competent authorities in the concerned Member States to prevent and halt the spread of those diseases, including the contact tracing measures implemented to trace infected persons or those who are potentially in danger of being infected (13),

| — | Article 7(d) of Directive 95/46/EC: ‘processing is necessary in order to protect the vital interests of the data subject’. In principle, the exchange between the concerned Member States of personal data of infected individuals, and of individuals who are in imminent danger of being infected, is necessary to provide them with the appropriate care or treatment, as well as to permit tracing and identification for isolation and quarantine purposes, with the aim of protecting the health of the concerned individuals and, ultimately, that of EU citizens at large, |
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Article 7(d) of Directive 95/46/EC: ‘processing is necessary in order to protect the vital interests of the data subject’. In principle, the exchange between the concerned Member States of personal data of infected individuals, and of individuals who are in imminent danger of being infected, is necessary to provide them with the appropriate care or treatment, as well as to permit tracing and identification for isolation and quarantine purposes, with the aim of protecting the health of the concerned individuals and, ultimately, that of EU citizens at large,

| — | and Article 7(e) of Directive 95/46/EC: ‘processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller or in a third party to whom the data are disclosed’. The EWRS is a tool designed to help Member States to coordinate their efforts for the prevention and control of serious communicable diseases within the EU. Therefore, the system is conceived to serve the performance of a public interest task vested in the Member States to protect public health. |
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and Article 7(e) of Directive 95/46/EC: ‘processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller or in a third party to whom the data are disclosed’. The EWRS is a tool designed to help Member States to coordinate their efforts for the prevention and control of serious communicable diseases within the EU. Therefore, the system is conceived to serve the performance of a public interest task vested in the Member States to protect public health.

The same reasons of public interest may justify the processing by Member States of sensitive health data (e.g. information on the event posing a health threat, data related to the health conditions of the infected persons and of persons potentially exposed to contamination) within the EWRS. Although the processing of data concerning health is prohibited in principle by Article 8(1) of Directive 95/46/EC, the processing of this special category of data within the EWRS is covered by the exemption granted under Article 8(3) of the same Directive in so far as the processing is ‘required for the purposes of preventive medicine, medical diagnosis, the provision of care or treatment or the management of health-care services, and where those data are processed by a health professional subject under national law or rules established by national competent bodies to the obligation of professional secrecy or by another person also subject to an equivalent obligation of secrecy’.

Additional exemptions to the prohibition to process personal health data may be provided, for reasons of substantial public interest and subject to the provision of suitable safeguards, by the national laws of the Member States, or by decision of the national DPAs in the Member States (14).

5.   WHO IS WHO IN THE EWRS? THE ISSUE OF JOINT CONTROLLERSHIP

The EWRS has been conceived as a multiple user system connecting, through appropriate technical means including different structured communication channels, the designated contact persons from the competent public health authorities in EEA Member States (hereinafter, the ‘national EWRS focal points’), the Commission, the ECDC and, to a limited extent, also the WHO.

Each of these EWRS actors is a separate user of the system, although access to the information exchanged within the system has been modulated through the creation of different user profiles and of ‘selective’ communication channels, which provide for appropriate safeguards to ensure compliance with applicable data protection rules.

In particular, the system consists of two main communication channels. A first channel, the so called ‘general messaging’ channel, allows the competent health authority in a given Member State to notify all national EWRS focal points, the Commission, the ECDC and the WHO of information concerning events caused by communicable diseases having a potential EU dimension which are covered by the reporting obligations laid down in Decision No 2119/98/EC (15).

In general, no health-related or other personal data of identified or identifiable natural persons is communicated through the general messaging channel. Specific safeguards have been introduced into the system to prevent unlawful data processing within this channel (see Section 7).

However, in the occurrence of events caused by communicable diseases with a potential EU dimension, it may be necessary for the affected Member States, in collaboration with each other, to implement particular contact tracing measures with a view to tracing infected persons, and other individuals exposed to contamination, so as to prevent the spread of those serious diseases.

In order to ensure compliance with data protection rules, appropriate safeguards have been introduced to limit the exchange of contact tracing and health data of individuals only to the Member States directly concerned by a given contact tracing procedure, and to exclude the other Member States of the Network, the Commission and the ECDC from accessing these data (16).

To this end, the so called ‘selective messaging’ channel has been built into the EWRS to guarantee an exclusive communication channel between the Member States concerned by a given contact tracing measure.

By exchanging personal information through the selective messaging channel, competent authorities take the role of ‘controller’ with respect to the processing of these personal data and therefore assume responsibility for the lawfulness of their processing activities and for ensuring compliance with data protection obligations set out in the applicable national laws transposing Directive 95/46/EC.

Who is the ‘controller’?

For the purposes of Directive 95/46/EC, ‘ “controller” shall mean the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data’
   (17).

In principle, users at the Commission and the ECDC do not have access to personal data exchanged through the selective messaging channel (18). However, for technical reasons, the central storage of data in the EWRS is the ultimate responsibility of the Commission as the system administrator and coordinator. In this capacity, the Commission is also responsible for the registration, storage and further processing of personal data of the EWRS authorised users necessary to run the system.

The EWRS is therefore a clear example of joint controllership, where the responsibility for ensuring data protection is allocated, at different levels, between the Commission and the Member States. Moreover, since 2005 the Commission and the Member States in their capacity as co-controllers have decided to delegate the daily operation of the EWRS informatics application to the ECDC, which performs this task on behalf of the Commission. Further to this delegation, the agency has assumed the responsibility to ensure, as ‘processor’, the confidentiality and security of the processing operations carried out within the system, in accordance with the obligations laid down in Articles 21 and 22 of Regulation (EC) No 45/2001.

Who is the ‘processor’ and what are its obligations?

For the purposes of Regulation (EC) No 45/2001, ‘ “processor” shall mean a natural or legal person, public authority, agency or any other body which processes personal data on behalf of the controller’
   (19).

The Regulation foresees that, where a processing operation is carried out on its behalf, the controller shall choose a processor providing sufficient guarantees in respect of the technical and organisational measures required for data security purposes. The controller shall be ultimately responsible for ensuring compliance with those measures. Nevertheless, the obligations set out in Articles 21 and 22 of the Regulation with regard to the confidentiality and security of processing are also incumbent on the processor (20).

6.   APPLICABLE DATA PROTECTION PRINCIPLES

The processing of personal data within the EWRS must comply with a set of data protection principles set out in Regulation (EC) No 45/2001 and Directive 95/46/EC.

In their capacity as controllers, the Commission and the competent authorities in the Member States are responsible for ensuring compliance with these principles each time they process personal data through the EWRS. A selection of core data protection principles is provided hereafter. This is without prejudice to other applicable data protection requirements set out in the relevant legal instruments, for which guidance is given under different sections of the present guidelines. In particular, EWRS users are invited to read carefully Section 8 on the provision of information to data subjects and Section 9 on access and other rights of data subjects.

6.1.   Principles relating to the lawfulness of processing and to purpose limitation

Controllers should ensure that personal data are processed fairly and lawfully. This principle implies, first of all, that the collection and any further processing of personal data should be based on legitimate grounds provided by law (21). Secondly, personal data may be collected only for specified, explicit and legitimate purposes and should not be further processed in a way incompatible with those purposes (22).

6.2.   Principles on data quality

Controllers should ensure that personal data are adequate, relevant and not excessive in relation to the purposes for which they are collected. Furthermore, data should be accurate and kept up to date (23).

6.3.   Principles on data retention

Controllers should ensure that personal data are kept in a form which permits identification of data subjects for no longer than it is necessary in view of the purposes for which the data were collected, or for which they are further processed (24).

6.4.   Principles on confidentiality and data security

Controllers should ensure that any person having access to personal data and acting under their authority or under the authority of the processor, including the processor himself, do not process these data except on instructions from the controller (25). Furthermore, controllers are required to implement appropriate technical and organisational measures to protect personal data against accidental, unauthorised or unlawful destruction or loss, alteration, disclosure or access, and against all other unlawful forms of processing (26).

In view of a correct and effective application of the abovementioned principles in the context of their use of the system, EWRS users are recommended in particular that:

In order to make sure that the processing operation has a legal basis, that data are collected for legitimate and explicit purposes and that they are not further processed in a way incompatible with those purposes, each time they collect or otherwise process personal data through the EWRS, EWRS users should:

| — | assess on a case-by-case basis whether the implementation of coordinated contact tracing measures, and the consequent activation of the EWRS selective channel to exchange related contact tracing and other personal data, is justified in consideration of the nature of the disease and the scientifically proven benefits of contact tracing for preventing or reducing the further spread of the disease, taking into account the risk assessment provided by the health authorities in Member States and by the existing scientific agencies, namely ECDC and WHO, |
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assess on a case-by-case basis whether the implementation of coordinated contact tracing measures, and the consequent activation of the EWRS selective channel to exchange related contact tracing and other personal data, is justified in consideration of the nature of the disease and the scientifically proven benefits of contact tracing for preventing or reducing the further spread of the disease, taking into account the risk assessment provided by the health authorities in Member States and by the existing scientific agencies, namely ECDC and WHO,

| — | not use the general messaging channel to exchange contact tracing and other personal data. They should ensure, in particular, that no such data are included in the body of the general messages they post, in their attachments or in any other form. The use of the general messaging channel for contact tracing purposes would be illegitimate and disproportionate, since it would result in personal data being disclosed to recipients (including the Commission and the ECDC) not concerned by a given contact tracing procedure and which do not need to have access to those data, |
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not use the general messaging channel to exchange contact tracing and other personal data. They should ensure, in particular, that no such data are included in the body of the general messages they post, in their attachments or in any other form. The use of the general messaging channel for contact tracing purposes would be illegitimate and disproportionate, since it would result in personal data being disclosed to recipients (including the Commission and the ECDC) not concerned by a given contact tracing procedure and which do not need to have access to those data,

| — | when using the selective functionality, adopt a ‘need-to-know’ approach and select as recipients of selective messages containing personal data only the competent authorities in the Member States which need to cooperate on a given contact tracing procedure. |
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when using the selective functionality, adopt a ‘need-to-know’ approach and select as recipients of selective messages containing personal data only the competent authorities in the Member States which need to cooperate on a given contact tracing procedure.

EWRS users should be particularly vigilant when exchanging, through the selective messaging channel, sensitive data concerning the health conditions of an identified or identifiable person, e.g. infected or potentially exposed persons whose contact details or other personal information are concomitantly disclosed through the EWRS, so that the person in question may be directly or indirectly identified. In this case, all the abovementioned recommendations continue to apply; additionally, EWRS users should remember that the exchange of sensitive data is permitted under Directive 95/46/EC only in very limited circumstances. In particular (27):

| — | the person whose data are being collected has given his or her explicit consent to their processing (Article 8(2)(a) of Directive 95/46/EC). However, the need to timely intervene in situations of sanitary emergency may render it impossible to provide data subjects with all the information required for them to be able to signify an informed consent (see Section 8 on the provision of information to data subjects). Furthermore, the possibility that data may be eventually disclosed through the EWRS is not necessarily known at the time when they are collected, |
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the person whose data are being collected has given his or her explicit consent to their processing (Article 8(2)(a) of Directive 95/46/EC). However, the need to timely intervene in situations of sanitary emergency may render it impossible to provide data subjects with all the information required for them to be able to signify an informed consent (see Section 8 on the provision of information to data subjects). Furthermore, the possibility that data may be eventually disclosed through the EWRS is not necessarily known at the time when they are collected,

| — | failing data subjects’ consent, processing of health data may be considered legitimate if it is necessary for the ‘purposes of preventive medicine, medical diagnosis, the provision of care or treatment or the management of health-care services’, provided that health data are processed by a health professional subject to the obligation of professional secrecy, or by another person also subject to an equivalent obligation (Article 8(3) of Directive 95/46/EC). In other terms, each time they send a selective message containing sensitive health data to recipients in other Member States, EWRS users should assess whether disclosing such data is strictly necessary to allow competent authorities in the concerned Member States to implement specific measures required for one of the abovementioned purposes. EWRS users are also reminded that additional grounds for processing health data may be provided by their respective national laws transposing Directive 95/46/EC, or by decision of their national DPA (28). |
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failing data subjects’ consent, processing of health data may be considered legitimate if it is necessary for the ‘purposes of preventive medicine, medical diagnosis, the provision of care or treatment or the management of health-care services’, provided that health data are processed by a health professional subject to the obligation of professional secrecy, or by another person also subject to an equivalent obligation (Article 8(3) of Directive 95/46/EC). In other terms, each time they send a selective message containing sensitive health data to recipients in other Member States, EWRS users should assess whether disclosing such data is strictly necessary to allow competent authorities in the concerned Member States to implement specific measures required for one of the abovementioned purposes. EWRS users are also reminded that additional grounds for processing health data may be provided by their respective national laws transposing Directive 95/46/EC, or by decision of their national DPA (28).

In order to ensure the quality of personal data they exchange through the system, and in particular, before posting a selective message, EWRS users need to consider whether:

| — | the personal data they want to exchange are strictly needed to allow an efficient contact tracing procedure. In other terms, the competent authority posting the message should provide the authority(s) in the other concerned Member State(s) only with those personal data which are needed to unambiguously identify the infected or exposed persons. The indicative list of personal data which may be exchanged for contact tracing purposes, annexed to Decision 2009/547/EC, should not be seen as granting a blanket and unconditional authorisation to process these categories of data. At the same time, precaution must be extreme as regards processing of personal data other than those listed in that Annex, as disclosure is likely to be excessive and unreasonable. Instead, a case-by-case assessment should be made of whether inclusion of a certain personal data is strictly necessary for the purposes of a given contact tracing procedure. |
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the personal data they want to exchange are strictly needed to allow an efficient contact tracing procedure. In other terms, the competent authority posting the message should provide the authority(s) in the other concerned Member State(s) only with those personal data which are needed to unambiguously identify the infected or exposed persons. The indicative list of personal data which may be exchanged for contact tracing purposes, annexed to Decision 2009/547/EC, should not be seen as granting a blanket and unconditional authorisation to process these categories of data. At the same time, precaution must be extreme as regards processing of personal data other than those listed in that Annex, as disclosure is likely to be excessive and unreasonable. Instead, a case-by-case assessment should be made of whether inclusion of a certain personal data is strictly necessary for the purposes of a given contact tracing procedure.

Further processing and storage of personal data outside the EWRS:

It is of the utmost importance to note that national data protection laws transposing Directive 95/46/EC also apply to the storage and further processing, outside the EWRS, of personal data obtained through the system. This may occur, for instance, when personal data stored centrally by the system are then stored in the local PCs of users or in databases established at national level; or whether these data are transmitted by the competent authority responsible for their processing within the EWRS to other authorities or to any third parties. In these cases, EWRS users are reminded that:

| — | the storage and further processing outside the EWRS must not be incompatible with the original purposes for which data were collected and exchanged within the EWRS, |
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the storage and further processing outside the EWRS must not be incompatible with the original purposes for which data were collected and exchanged within the EWRS,

| — | this further processing must have a legal basis in the relevant national data protection laws; be necessary, adequate, relevant and not excessive in relation to the original purposes of collection in the EWRS, |
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this further processing must have a legal basis in the relevant national data protection laws; be necessary, adequate, relevant and not excessive in relation to the original purposes of collection in the EWRS,

| — | data must be kept up to date and deleted once no longer needed for the purposes for which they were further processed, |
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data must be kept up to date and deleted once no longer needed for the purposes for which they were further processed,

| — | when data are extracted from the EWRS and disclosed to third parties, the controller must inform data subjects of this circumstance so as to guarantee fair processing, unless this would be impossible or involve disproportionate effort, or if disclosure is expressly laid down by law (see Article 11(2) of Directive 95/46/EC). Considering that disclosure may be required by the laws of only one of the Member States involved, and therefore may not be widely known elsewhere, efforts should be made to provide information even when the disclosure is expressly laid down by law. |
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when data are extracted from the EWRS and disclosed to third parties, the controller must inform data subjects of this circumstance so as to guarantee fair processing, unless this would be impossible or involve disproportionate effort, or if disclosure is expressly laid down by law (see Article 11(2) of Directive 95/46/EC). Considering that disclosure may be required by the laws of only one of the Member States involved, and therefore may not be widely known elsewhere, efforts should be made to provide information even when the disclosure is expressly laid down by law.

7.   A DATA PROTECTION FRIENDLY ENVIRONMENT

Several features have been already built into the EWRS to enhance compliance with data protection principles outlined in Section 6 and to prompt EWRS users to assess data protection aspects each time they use the system. For example:

| — | a warning is visibly displayed in the EWRS messages overview page, informing users that the general messaging channel is not designed for accommodating contact tracing and other personal data, since use of this channel may result in these data being unnecessarily disclosed to recipients other than those who need to access them, |
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a warning is visibly displayed in the EWRS messages overview page, informing users that the general messaging channel is not designed for accommodating contact tracing and other personal data, since use of this channel may result in these data being unnecessarily disclosed to recipients other than those who need to access them,

| — | access to the information exchanged within the system has been modulated through the creation of different user profiles and of selective communication channels, which provide for appropriate safeguards to ensure compliance with data protection rules, |
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access to the information exchanged within the system has been modulated through the creation of different user profiles and of selective communication channels, which provide for appropriate safeguards to ensure compliance with data protection rules,

| — | in particular, the selective messaging channel of the EWRS provides an exclusive communication channel for the exchange of personal information between the concerned Member States only. A default option has been built into the system which automatically excludes the Commission and the ECDC from the list of possible recipients of selective messages containing personal data (29), |
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in particular, the selective messaging channel of the EWRS provides an exclusive communication channel for the exchange of personal information between the concerned Member States only. A default option has been built into the system which automatically excludes the Commission and the ECDC from the list of possible recipients of selective messages containing personal data (29),

| — | the system automatically erases all selective messages containing personal information 12 months after the date of posting of the messages (for more details, see Section 11 on data retention), |
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the system automatically erases all selective messages containing personal information 12 months after the date of posting of the messages (for more details, see Section 11 on data retention),

| — | a feature has been built into the system to allow users to directly rectify or delete, at any time, those selective messages containing personal information which is inaccurate, not up to date, no longer needed or otherwise not compliant with data protection requirements. The system will automatically notify the other EWRS user(s) involved in that specific selective information exchange that the message has been deleted, or its content rectified, to ensure compliance with data protection rules, |
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a feature has been built into the system to allow users to directly rectify or delete, at any time, those selective messages containing personal information which is inaccurate, not up to date, no longer needed or otherwise not compliant with data protection requirements. The system will automatically notify the other EWRS user(s) involved in that specific selective information exchange that the message has been deleted, or its content rectified, to ensure compliance with data protection rules,

| — | a specific mechanism has been made available in the selective messaging channel to allow the national authorities concerned by a given information exchange to communicate and cooperate on access, rectification, blocking or deletion requests of data subjects. |
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a specific mechanism has been made available in the selective messaging channel to allow the national authorities concerned by a given information exchange to communicate and cooperate on access, rectification, blocking or deletion requests of data subjects.

Furthermore, in the medium term it is envisaged that the training module available from within the EWRS application will be integrated in order to provide EWRS users with extensive explanations on the functioning of the system from the data protection perspective. The use of the various features and functionalities aimed at enhancing compliance with data protection rules will be illustrated by means of practical examples.

It is the Commission intention to work with the Member States to ensure that the concept of privacy by design will inform these and any other future developments of the EWRS right from the outset (30), and that the principles of necessity, proportionality, purpose limitation and data minimisation will be taken into due account when decisions are made on what information can be exchanged through the EWRS, with whom, and under which conditions.

8.   THE PROVISION OF INFORMATION TO DATA SUBJECTS

One of the main requirements under the EU data protection legal framework is the obligation for a data controller to provide clear information to data subjects about the processing operations it intends to carry out on their personal data.

In line with its coordinating role within the EWRS and in order to fulfil the abovementioned obligation (31), the Commission has made available a clear and comprehensive privacy statement on its webpage dedicated to the EWRS, with regard to the processing operations carried out under the Commission’s own responsibility and to those carried out by competent authorities in particular in the context of contact tracing activities.

However, responsibility with respect to the provision of information to data subjects is also incumbent on the national competent authorities in the Member States in their capacity as controllers, for their respective processing operations within the EWRS.

What ‘information’ must national EWRS competent authorities provide to data subjects?

In cases of collection of data directly from the data subject, Article 10 of Directive 95/46/EC states that the controller or his representative must provide, at the time of the collection, a data subject from whom data are collected with at least the following information, except where the data subject already has it:

| (a) | the identity of the controller and of his representative, if any; |
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(a)

the identity of the controller and of his representative, if any;

| (b) | the purposes of the processing for which the data are intended; |
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(b)

the purposes of the processing for which the data are intended;

| (c) | any further information such as:






  — | the recipients or categories of recipients of the data, |
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(c)

any further information such as:

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the recipients or categories of recipients of the data,

| — | whether replies to the questions are obligatory or voluntary, as well as the possible consequences of failure to reply, |
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whether replies to the questions are obligatory or voluntary, as well as the possible consequences of failure to reply,

| — | the existence of the right of access to and the right to rectify the data concerning him or her, |
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the existence of the right of access to and the right to rectify the data concerning him or her,

in so far as such further information is necessary, having regard to the specific circumstances in which the data are collected, to guarantee fair processing in respect of the data subject.

Article 11 of Directive 95/46/EC lists the minimum information to be provided by the data controller where data have not been obtained from the data subject. This information must be given at the time of undertaking the recording of personal data or, if a disclosure to third parties is envisaged, no later than the time when the data are first disclosed (32).

It results from the abovementioned provisions that, at the time of collecting personal data from individuals (or, at the latest, at the time when data are first disclosed through the EWRS), for the purposes of adopting the measures required to protect public health in relation to events to be notified under Decision No 2119/98/EC and its implementing rules, a legal notice containing the information listed in Articles 10 and 11 of Directive 95/46/EC must be given by the national competent authorities directly to data subjects. The notice should include also a brief reference to the EWRS and a link to the relevant documents and privacy statements in the competent authorities’ national websites, as well as to the Commission’s EWRS-dedicated webpage.

The exact detail of information to be provided in the legal notice may differ significantly from one Member State to another. Certain national laws foresee more extensive obligations for data controllers covering the provision of further information, such as information on data subjects’ right to obtain redress, on data storage and retention periods, on data security measures, etc.

It is true that the need to timely intervene in situations of sanitary emergency may render it impossible, when the data have not been obtained from the data subject, to provide notice to data subjects to inform them about the purposes of the processing of their personal data. In this regard, Article 11(2) of Directive 95/46/EC states that the right of information of data subjects may be restricted where ‘the provision of such information proves impossible or would involve a disproportionate effort, or if recording or disclosure is expressly laid down by law. In these cases Member States shall provide appropriate safeguards’.

More generally, it should be noted that specific restrictions or limitations to data subjects’ right to information may be applicable under national data protection laws transposing Directive 95/46/EC (33). Any such country-specific limitations or restrictions should be unambiguously mentioned in the privacy notices provided to data subjects or in the privacy statements published on the competent authorities’ national websites.

It is for the national competent authorities in the Member States to decide in which form and how exactly to convey this information to data subjects. As most competent authorities will carry out processing operations other than exchanges of information within the EWRS, the way they inform individuals may, if appropriate, be the same way chosen for conveying similar information for other processing operations under national law. Furthermore, it is recommended that competent authorities update or complement the privacy policies or statements — if they already have any on their national websites — with a specific reference to the exchange of personal data within the EWRS.

For all the abovementioned reasons, it is of the utmost importance that competent authorities in the Member States consult their respective national DPAs when developing standard legal notices and privacy statements in accordance with Articles 10 and 11 of Directive 95/46/EC.

9.   ACCESS TO PERSONAL DATA AND OTHER RIGHTS OF DATA SUBJECTS

Data protection requirements on the provision of information to data subjects examined in the previous Section 8 are ultimately aimed at ensuring the transparency of personal data processing operations. Transparency is also the underlying objective of the provisions on access rights of data subjects laid down in the EU data protection legal instruments (34).

What is the data subject’s ‘right of access to data’?

Data controllers are required to guarantee every data subject the right to obtain, without excessive delay or expense, confirmation as to whether or not personal data relating to him or her are being processed, as well as information on the purposes of this processing and on the recipients to whom data may be disclosed.

Data controllers must also guarantee data subjects’ right to obtain the rectification, erasure or blocking of data the processing of which does not comply with the applicable data protection laws, for example because of the incomplete or inaccurate nature of the data.

Finally, data controllers must notify third parties to whom the data have been disclosed of any rectification, erasure or blocking carried out upon legitimate request from the data subject, unless this proves impossible or involves a disproportionate effort.

In their capacity as controllers, the Commission and the Member States share responsibility with respect to the provision of rights of access, rectification, blocking and deletion of personal data processed within the EWRS in the terms outlined hereafter.

The Commission bears responsibility for giving access to personal data of the national EWRS focal points, and for dealing with the related rectification, blocking and deletion requests. National focal points are invited to refer to the specific clause in the comprehensive privacy statement on the Commission’s EWRS-dedicated webpage (35) for more detailed information on how to exercise their rights as data subjects.

EWRS users are also informed that a feature has already been built into the system allowing them to directly modify their personal data. However, data fields on which a given EWRS account is identified (user’s accredited e-mail address, account type, etc.) cannot be changed by users themselves, in order to prevent the risk of unauthorised users gaining access to the system. Therefore, any request to modify these data fields should be addressed to the data controller at the Commission, as indicated in the comprehensive privacy statement on the Commission’s EWRS-dedicated webpage.

The responsibility for dealing with data subjects’ requests concerning contact tracing, health and other personal data exchanged between Member States through the EWRS rests with the respective competent authorities involved in a given selective information exchange. This responsibility is governed by the relevant provisions of the national data protection laws transposing Directive 95/46/EC.

However, it should be noted that specific restrictions or limitations to data subjects’ rights of access, rectification, erasure or blocking of data may be applicable under national data protection laws transposing Directive 95/46/EC (36). Any such limitations or restrictions should be unambiguously mentioned in the privacy notices provided to data subjects or in the privacy statements published on the competent authorities’ national websites. EWRS contact points are therefore advised to contact their national DPAs to get more information on this issue.

The complexity of the EWRS, with multiple users involved in joint processing operations, requires a clear and simple approach towards data subjects’ right of access, since data subjects are not familiar with the functioning of the system and should be put in the conditions to effectively exercise their rights.

A recommended approach would be that, if a data subject believes that his or her personal data are being processed within the EWRS, and he or she would like to have access to it or have it deleted or rectified, the data subject should be able to address any of the national competent authorities with which he or she had contacts and/or who collected his or her data in relation to a specific event posing a public health risk (e.g. both the authority of the country of which the data subject is a citizen and the authority of the country of stay of the person at the time of the event), as well as any other authority involved in that given information exchange in relation to the implementation of contact tracing measures.

No competent authority involved in the concerned information exchange should refuse access, rectification or deletion on the ground that it did not introduce the data in the EWRS, or that the data subject should contact another competent authority. In particular, if the request of the data subject is received by a competent authority other than that who posted the original information through the selective exchange channel, the receiving authority should forward the request, through the specific mechanism referred to in Section 7, to the competent authority having posted the original message, who will decide on the request.

If appropriate, before taking a decision the competent authority who posted the information in the system may contact other competent authorities involved in the information exchange or otherwise concerned by the request of the data subject through the specific mechanism referred to in Section 7.

Data subjects should be also informed that, if they are not satisfied with the answer received, they may contact another competent authority involved in the information exchange. In any case, data subjects have the right to lodge a complaint with the national data protection authority of one of these competent authorities that suits him or her best. If necessary and appropriate, national DPAs should cooperate with each other to deal with the complaint (Article 28 of Directive 95/46/EC).

Finally, further to a specific recommendation made by the EDPS in its Opinion, the Commission has implemented a new feature within the EWRS to allow online rectification and deletion, for data protection compliance purposes, of selective messages containing personal information which is inaccurate, not up to date, no longer needed or otherwise not compliant with data protection requirements.

10.   DATA SECURITY

Access to the system is limited to authorised users from the Commission and the ECDC and to formally appointed EWRS national focal points. Access is protected through secured and personalised user account and password.

The procedures for the handling of personal information in the EWRS are set with reference to the requirements indicated in Articles 21 and 22 of Regulation (EC) No 45/2001.

11.   DATA RETENTION

In accordance with data protection requirements under Article 4(1)(e) of Regulation (EC) No 45/2001 and Article 6(1)(e) of Directive 95/46/EC, the system will automatically erase all selective messages containing personal information 12 months after the date of posting of the messages.

This safeguard, which is intrinsic to the system design, does not however dispense EWRS users — since solely and individually responsible for their own processing operations within the selective messaging channel — from taking action to remove from the system those personal data which become no longer needed before the expiration of the default 1-year period.

To this end, the Commission has implemented a new feature within the EWRS to allow users to directly delete, at any time, those selective messages containing personal information which is no longer needed.

Finally, it should be recalled that national competent authorities are responsible for complying with their own data protection rules on the retention of personal data set out in the relevant legislation transposing Directive 95/46/EC. Automatic erasure of personal information stored in the system after 1 year does not prevent EWRS users from storing the same information outside the EWRS for different (e.g. longer) periods, provided this is done in conformity with the obligations stemming from their respective national data protection laws and that the periods provided for in the national legislation are compatible with the requirements set in Article 6(1)(e) of Directive 95/46/EC.

12.   COOPERATION WITH NATIONAL DATA PROTECTION AUTHORITIES

Competent authorities are encouraged to seek the advice of their respective national DPAs, particularly when confronted with issues related to data protection which are not covered by these guidelines.

Competent authorities must also be aware that, under the terms of national laws transposing Directive 95/46/EC, it might be necessary for them to notify their respective DPAs of their own data processing activities within the EWRS. In certain Member States, a prior authorisation from the national DPA might be even required.

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(1)  The ECDC also supports and assists the Commission in the operation of the EWRS application. This task was assigned to the ECDC by Regulation (EC) No 851/2004 of the European Parliament and of the Council of 21 April 2004 establishing a European centre for disease prevention and control and in particular Article 8 thereof (OJ L 142, 30.4.2004, p. 1).

(2)  http://www.edps.europa.eu/EDPSWEB/edps/EDPS

(3)  The categories of communicable diseases covered by the Network are limited to those listed in the Annex to Decision No 2119/98/EC.

(4)  Article 2(a) of Directive 95/46/EC and Article 2(a) of Regulation (EC) No 45/2001.

(5)  Article 4 of Decision No 2119/98/EC.

(6)  Annex I to Decision 2000/57/EC on the definition of ‘events’ to be reported within the EWRS.

(7)  Article 6 of Decision No 2119/98/EC.

(8)  Clarification on the legitimate purposes for processing personal data within the EWRS to include ‘contact tracing’ data was the result of the amendments introduced to Commission Decision 2000/57/EC by Decision 2009/547/EC.

(9)  Article 2(b) of Directive 95/46/EC and Article 2(b) of Regulation (EC) No 45/2001.

(10)  As regards the definition of ‘controller’ see Section 5 below.

(11)  An indicative list of personal data which may be exchanged for the purposes of contact tracing is annexed to Decision 2009/547/EC.

(12)  Article 1 and Annex I to Decision 2000/57/EC on the definition of ‘events’ to be reported within the EWRS.

(13)  Article 2a of Decision 2000/57/EC introduced by Decision 2009/547/EC.

(14)  As foreseen by Article 8(4) of Directive 95/46/EC.

(15)  Cf., in particular, Articles 4, 5 and 6 thereof.

(16)  Article 2a of Decision 2000/57/EC introduced by Decision 2009/547/EC.

(17)  Definition laid down in Article 2(d) of Directive 95/46/EC.

(18)  In exceptional circumstances, the Commission may be involved in the exchange of personal data through the EWRS selective channel where this is absolutely necessary to coordinate, or to allow for, the timely and effective implementation of public health measures required under Decision No 2119/98/EC and its implementing rules. In these cases, the Commission will ensure that processing is lawful and that it is carried out in compliance with the provisions of Regulation (EC) No 45/2001.

(19)  Definition laid down in Article 2(e) of Regulation (EC) No 45/2001.

(20)  These principles are embedded in Article 23(1) of Regulation (EC) No 45/2001 on the processing of personal data on behalf of controllers.

(21)  The principle of lawfulness of processing results from the joint provisions of Article 6(1)(a), Article 7 and Article 8 of Directive 95/46/EC. Cf. also the corresponding provisions of Regulation (EC) No 45/2001.

(22)  The principle of purpose limitation is enunciated in Article 6(1)(b) of Directive 95/46/EC and in the corresponding provision of Article 4(1)(b) of Regulation (EC) No 45/2001.

(23)  Article 6(1)(c) and (d) of Directive 95/46/EC and Article 4(1)(c) and (d) of Regulation (EC) No 45/2001.

(24)  Article 6(1)(e) of Directive 95/46/EC and Article 4(1)(e) of Regulation (EC) No 45/2001.

(25)  The principle of confidentiality is laid down in Article 16 of Directive 95/46/EC and the corresponding provision of Article 21 of Regulation (EC) No 45/2001.

(26)  The principle of data security is enunciated in Article 17 of Directive 95/46/EC and the corresponding provision of Article 22 of Regulation (EC) No 45/2001.

(27)  For the full list of exemptions to the prohibition to process certain special categories of data, including health data, see Article 8(2), (3), (4), (5) of Directive 95/46/EC.

(28)  Article 8(4) of Directive 95/46/EC.

(29)  Nevertheless, the alternative option is given to EWRS users to also use this channel for the selective sharing of information related to technical issues which do not involve transmission of personal data. When the alternative option is chosen instead of the default one, the Commission and the ECDC may be selected as recipients by the authority posting the message. This feature has been enabled in the system to take into account the institutional role of the Commission in the coordination of risk and event management issues and of the ECDC in performing risk assessment tasks.

(30)  According to the principle of ‘Privacy by Design’, Information and Communication Technologies (ICTs) are to be designed and developed taking into account privacy and data protection requirements from the very inception of the technology and at all stages of its development.

(31)  The information obligation incumbent on the Commission is based on Articles 11 and 12 of Regulation (EC) No 45/2001.

(32)  The information to be provided is that listed in Article 10 cited with the addition of the categories of data concerned. This information is obviously not required in case of collection directly from the data subject, who is informed of the categories of data concerned as these are collected.

(33)  Article 13(1) of Directive 95/46/EC on exemptions and restrictions states as follows: ‘Member States may adopt legislative measures to restrict the scope of the obligations and rights provided for in Articles 6(1), 10, 11(1), 12 and 21 when such a restriction constitutes a necessary measure to safeguard: (a) national security; (b) defence; (c) public security; (d) the prevention, investigation, detection and prosecution of criminal offences, or of breaches of ethics for regulated professions; (e) an important economic or financial interest of a Member State or of the European Union, including monetary, budgetary and taxation matters; (f) a monitoring, inspection or regulatory function connected, even occasionally, with the exercise of official authority in cases referred to in (c), (d) and (e); (g) the protection of the data subject or of the rights and freedoms of others’.

(34)  Article 12 of Directive 95/46/EC and Articles 13 to 18 of Regulation (EC) No 45/2001.

(35)  The privacy statement is also available to all EWRS users from within the secure section of the EWRS application.

(36)  Article 13(1) of Directive 95/46/EC cited.

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