COUNCIL REGULATION (EC) No 1208/2004

of 28 June 2004

extending the definitive anti-dumping measures imposed by Regulation (EC) No 119/97 on imports of certain ring-binder mechanisms originating in the People’s Republic of China to imports of the same product consigned from the Socialist Republic of Vietnam

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community,

Having regard to Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (the basic regulation) (1), and in particular Articles 9 and 13 thereof,

Having regard to the proposal submitted by the Commission after consulting the Advisory Committee,

Whereas:

1. PROCEDURE

1.1. Existing measures

(1) Pursuant to Regulation (EC) No 119/97 (2), (the original Regulation), the Council imposed definitive anti-dumping duties ranging from 32,5 % to 39,4 % on imports of certain ring-binder mechanisms (RBMs) originating in the People's Republic of China.

(2) Following an investigation pursuant to Article 12 of Regulation (EC) No 384/96, the Council amended and increased the above duties through Regulation (EC) No 2100/2000 (the anti-absorption investigation). The amended definitive anti-dumping duties ranged from 51,2 % to 78,8 %.

(3) In January 2002, pursuant to Article 11(2) of the basic Regulation, the Commission initiated a review of the above anti-dumping measures (3) (the expiry review). This review is still ongoing.

1.2. Request

(4) On 18 August 2003, the Commission received a request pursuant to Article 13(3) of the basic Regulation to investigate the alleged circumvention of the anti-dumping measures imposed on imports of certain RBMs originating in the People's Republic of China. The request was submitted by SX Bürowaren and Ringbuchtechnik Handelsgesellschaft GmbH on behalf of producers representing a major proportion of the Community production of certain RBMs (the applicants). The request alleged that the anti-dumping measures in force on imports of certain RBMs originating in the People's Republic of China were being circumvented by means of transhipment via Vietnam.

(5) The request further alleged that there was insufficient due cause or justification other than the imposition of anti-dumping measures for such change in the pattern of trade and that the remedial effects of the existing anti-dumping measures on imports of certain RBMs originating in the People's Republic of China were being undermined both in terms of quantity and price. Significant volumes of imports of certain RBMs from Vietnam appeared to have replaced imports of certain RBMs from the People's Republic of China. In addition, there was sufficient evidence that this increase in imports was made at prices below the non-injurious price established in the investigation that led to the existing measures.

(6) Finally, the applicants alleged that the prices of certain RBMs consigned from Vietnam were dumped in relation to the normal value previously established for the product concerned.

1.3. Initiation

(7) Having determined, after consulting the Advisory Committee, that sufficient evidence existed for the initiation of an investigation pursuant to Article 13 of the basic Regulation, the Commission initiated an investigation according to Regulation (EC) No 1733/2003 (4) (the initiating Regulation). Pursuant to Articles 13(3), 14(3) and 14(5) of the basic Regulation, the Commission, by the initiating Regulation, also directed the customs authorities to register imports of certain RBMs consigned from Vietnam, whether declared as originating in Vietnam or not, as from 2 October 2003.

1.4. Investigation

(8) The Commission officially advised the authorities of the People's Republic of China and Vietnam, the producers/exporters, the importers in the Community known to be concerned and the applicant Community industry of the initiation of the investigation. Questionnaires were sent to the producers/exporters in the People's Republic of China and Vietnam as well as to the importers in the Community named in the request or known to the Commission from the original investigation. Interested parties were given the opportunity to make their views known in writing and to request a hearing within the time limit set in the initiating Regulation.

(9) One producer/exporter in Vietnam, related to a Chinese exporting producer, submitted a reply to the questionnaire whilst no reply was received from Chinese producers/exporters. Replies to the questionnaire were also submitted by five unrelated importers in the Community.

(10) The following companies cooperated in the investigation and submitted replies to the questionnaires: Unrelated importers — Industria Meccanica Lombarda Srl, Italy — KWH Plast Danmark A/S, Denmark — OY KWH Plast AB, Finland — KWH Plast Sverige AB, Sweden — KWH Plast (UK) Ltd, United Kingdom Vietnamese producers/exporters — Office Xpress Manufacturing Company Limited, Vietnam; and its related company — Hong Kong Stationery Manufacturing Corporation Limited, Hong Kong

(11) Verification visits were carried out at the premises of the following companies: — Office Xpress Manufacturing Company Limited, Vietnam; and its related company — Hong Kong Stationery Manufacturing Corporation Limited, Hong Kong

1.5. Investigation period

(12) The investigation period covered the period from 1 July 2002 to 30 June 2003 (the IP). Data was collected from 1999 up to the IP to investigate the change in the pattern of trade.

2. RESULTS OF THE INVESTIGATION

2.1. General considerations

(i) Determination of the import volume

(13) The export sales volume of RBMs to the Community during the IP reported by the sole cooperating Vietnamese producer/exporter, Office Xpress Manufacturing Company Limited (Office Xpress Manufacturing), substantially exceeded (i.e. by around 50 %) the total import volume of RBMs from Vietnam as recorded in Eurostat during the same period. This was due to the fact that the reported weight did not correspond to the shipment's actual weight but rather to a theoretical, i.e. estimated, weight of the parts. The investigation revealed also that there was only one exporter of RBMs in Vietnam, i.e. Office Xpress Manufacturing. On this basis, it was concluded that the data recorded in Eurostat as imports from Vietnam relate very likely exclusively to exports of Office Xpress Manufacturing. Under these circumstances it was considered that Eurostat data was more reliable than the data reported by Office Xpress Manufacturing.

(14) As far as import trends of RBMs since 1999 are concerned, it should be noted that Office Xpress Manufacturing's related trader in Hong Kong, Hong Kong Stationery Manufacturing Corporation Limited (Hong Kong Stationery) through whom all of Office Xpress Manufacturing's exports to the EU are made, did not provide any such export data pertaining to RBM sales in years prior to the IP. Therefore, in the absence of any other more reasonable basis or source of consistently comparable information, Eurostat data were used in order to determine actual import volumes of RBMs in the IP and their import trends from different sources since 1999. Finally, the relevant import data provided by two cooperating unrelated importers confirmed the general findings on Eurostat.

(ii) Community industry

(15) The investigation revealed that one of the unrelated importers in the Community also produced RBMs in the Community during the IP. This company claimed that due to the bankruptcy and closure of one of the applicant’s production facilities in the Community, it now produces a major proportion of the Community production of the like product. This importer/producer concluded therefore that the applicants do not have sufficient standing anymore and that the current proceeding should consequently be terminated without extending the anti-dumping measures in force to imports originating in Vietnam.

(16) It should be noted that Article 4(1)(a) of the basic Regulation foresees that Community producers which also import the allegedly dumped product may be excluded from the definition of Community industry. It should also be noted that Article 13(3) of the basic Regulation does not require that a request to initiate an anti-circumvention investigation has to be submitted by Community producers representing a major proportion of the Community production of the like product. Consequently, the fact that a Community producer opposing such investigation would allegedly represent a higher proportion than the party which requested it is not in itself a reason to terminate the proceeding. In any event, and even if this importer would indeed have to be considered as part of the Community industry, the investigation revealed that, even with the closure of one production facility after the IP, the applicants still produced significant quantities and still represented a major proportion of the Community production of the like product. Consequently, the claim to terminate the ongoing proceeding had to be rejected.

2.2. Product concerned and like product

(17) The product concerned is, as defined in the original Regulation, certain RBMs currently classifiable within CN code ex 8305 10 00. These RBMs consist of two rectangular steel sheets or wires with at least four half-rings made of steel wire fixed on it and which are kept together by a steel cover. They can be opened either by pulling the half rings or by using a small steel-made trigger mechanism fixed to the product concerned. Generally, RBMs are composed of such as ring, blade, cover, eyelet and, where applicable, trigger.

(18) The investigation showed that the RBMs exported to the Community from the People's Republic of China and those consigned from Vietnam to the Community have the same basic physical characteristics and have the same uses. They are therefore to be considered as like products within the meaning of Article 1(4) of the basic Regulation.

2.3. Nature of the circumvention practice

2.3.1. Change in the pattern of trade

(19) The investigation revealed that after the imposition of definitive measures on imports of RBMs from the People's Republic of China, and in particular after the substantial increase in these measures in 2000 further to the anti-absorption investigation mentioned in recital 2, imports from the People's Republic of China decreased significantly, i.e. from 1 684,3 tonnes in 1999 to 301,9 tonnes in 2002 and to 357,1 tonnes in the IP. During the same period, imports of RBMs from Vietnam increased significantly, i.e. from 0 tonnes between 1999 and 2001 to 1 105 tonnes in 2002. During the IP, imports from Vietnam increased further to 1 589,2 tonnes.

(20) In this context it should be noted that the cooperating Vietnamese producer/exporter's related company, Hong Kong Stationery, has production facilities in China and set up a production/assembly facility in Indonesia in about 1998. The Indonesian facility was shut down in 2002 and there were no imports of RBM from Indonesia during the IP of the current investigation. The setting up of the Indonesian facility and the subsequent EU imports from Indonesia led to the Community industry requesting the initiation of the investigation which resulted in the imposition of anti-dumping and countervailing measures on imports of the product concerned from Indonesia in 2002.

(21) In March 2002, Office Xpress Manufacturing started assembly operations in Vietnam (see below) and imports increased from 0 to 1 105 tonnes reaching import levels similar to those from the People's Republic of China in 1999 before the significant increase of the duties in 2000 (see recitals 1 and 2). This increase occurred immediately prior to the imposition of definitive anti-dumping and countervailing duties on imports of RBMs originating in Indonesia in 2002.

(22) It was therefore concluded that there had been a change in the pattern of trade between the Community on the one hand and the People's Republic of China and Vietnam on the other hand and that imports of RBMs originating in the People's Republic of China were substituted by imports of the same product from Vietnam.

(23) The Vietnamese exporter argued that there would be no link between the ceasing of the related company's exports from China and the start of operations in Vietnam, due to the time gap between these events. Thus the change in the pattern of trade would not stem from the establishment of the Vietnamese facility. However, precise export figures of the related Chinese company prior to the IP could not be verified, and therefore this company's export volumes could not be determined. Therefore, it cannot be confirmed that the related Chinese company's exports of RBM indeed ceased prior to the establishment of the operations in Vietnam, as claimed. In any event, the mere fact that exports from China ceased prior to the start of the operations in Vietnam does not have any impact on the conclusion whether or not there has been a change in the pattern of trade. In the current investigation, it was clearly established that exports of RBM from China were replaced by imports of the same product from Vietnam. This was considered to be a clear change in the pattern of trade in accordance with Article 13 of the basic Regulation, irrespective of whether the exports from China where replaced immediately or only after a certain time period. The Vietnamese exporter's argument had therefore to be rejected.

(24) The Vietnamese exporter claimed that since the Commission did not specifically request information regarding the cost of production for the assembly operation in Vietnam no conclusions should be drawn regarding the criteria specified under Article 13(2)(b) of the basic Regulation.

(25) It should first be noted that determinations were made on the basis of the information submitted within the questionnaire replies and collected during the on-the-spot verifications. This information was provided voluntarily by the companies concerned upon request by the Commission. Consequently, the conclusions made with regard to Article 13(2)(b) of the basic Regulation were exclusively made on the basis of information actually provided, including that related to the cost of production, by the company concerned, within the context of the current anti-circumvention investigation. The above argument had, therefore, to be rejected.

2.3.2. Practice, process or work

(26) The Vietnamese production/assembly facility of Office Xpress Manufacturing, the sole cooperating exporter, was registered in January 2002 and started actual operations in March 2002.

(27) It was found that both machinery and equipment used in Vietnam have been transferred from related companies dealing with RBMs which are located in People's Republic of China or were previously located in Indonesia. The transfer of equipment from Indonesia and the People's Republic of China to Vietnam began in February 2002, immediately prior to the imposition of definitive measures on imports of RBMs originating in Indonesia and subsequent to the imposition of definitive anti-dumping measures on imports of the product concerned from China.

(28) The investigation also revealed that, during the IP, the entirety of the Vietnamese exporter's needs for RBM components were manufactured by the related companies located in the People's Republic of China, the country subject to measures. In some cases, components were imported in semi-assembled form, such as half-rings assembled with the blade.

(29) The Commission examined the proportion of the parts imported from China in the total value of the parts of the assembled product, as laid down in Article 13(2)(b) of the basic Regulation. In this regard, the value of the parts, both imported and of the total assembled product, has been established in respect of the purchase value of all ring-binder components such as ring, blade, cover, eyelet and trigger.

(30) On this basis, the value of the parts imported by Office Xpress Manufacturing from the People's Republic of China was found to represent significantly more than 60 % of the total value of the parts of the assembled product. Indeed, the entirety of the parts of the assembled product were purchased during the IP by Office Xpress from its related companies in China.

(31) The Commission also examined the value added by Office Xpress Manufacturing in the assembly operation during the IP. This was done by deducting from the net turnover, excluding revenue from sales of scrap, those expenses incurred for intermediate consumption, i.e. all expenses paid to suppliers and needed to run the company and produce the product concerned (such as supplies of goods and services). In this respect the value added by Office Xpress to the parts brought in during the IP was found to be significantly less than 25 % of the company's manufacturing cost.

(32) Consequently, it had to be concluded that the operations in Vietnam constituted an assembly operation within the meaning of Article 13(2) of the basic Regulation.

2.3.3. Insufficient due cause or economic justification other than the imposition of the anti-dumping duty

(33) The above-described change in the pattern of trade coincided with the establishment of assembly operations of RBMs in Vietnam and no economic justification was found for such change in the pattern of trade. Indeed the company purchased its RBM components entirely from related companies in China with little value added in Vietnam. Moreover, it would be expected that any alleged economic advantages of assembling products in Vietnam would be reflected in all sales of such product by the group. Nevertheless, it was found that only sales of RBMs to the Community were made from Vietnam, while other markets continued to be supplied directly from the People's Republic of China. The company even admitted that sales to the Community were only made from Vietnam because of the anti-dumping duties in place on RBMs originating in the People's Republic of China.

(34) It was found that orders from Community customers were received by the related trader, Hong Kong Stationery. This company informed Office Xpress Manufacturing in Vietnam and its related companies in China of the necessary components and assembly operations to satisfy the requested orders. The components were then shipped to Vietnam where the final product was assembled. This procedure differs from the one used for sales to third countries other than the Community where the finished product is entirely produced by the Chinese producers.

(35) All products assembled in Vietnam are destined for the Community market and exported via the related trader in Hong Kong which takes care of the invoicing to the Community customers. As mentioned above, RBMs exported to third countries were produced in and directly exported from the People's Republic of China.

(36) The Vietnamese exporter argued that the reason for starting the operation in Vietnam was that the Vietnamese government created a favourable environment for foreign investments and improved infrastructure. Furthermore, labour costs would be considerably lower than in other Far Eastern countries. Finally, it was claimed that RBMs assembled in Vietnam were exclusively exported to the Community given the particular market situation with regard to demand, product types and prices in comparison with other third countries' markets.

(37) As far as the attraction of foreign investment in Vietnam is concerned, no convincing evidence was submitted which could confirm that such factors were indeed taken into account at the time of the decision to start the operation in that country. The specific circumstances of the present case, in particular the timing of the start of the operation and the type of the operation, rather indicate that the reason behind relocation to Vietnam was due to the existence of anti-dumping measures on imports from China.

(38) Regarding labour costs, it should be noted that no evidence was submitted which could support this argument or that this was a factor which was decisive in the company's decision to relocate to Vietnam. Even if labour costs were substantially lower in Vietnam than in China, the investigation revealed that labour costs constituted only a minor part of the cost of RBMs (on average approximately 3 % of cost of manufacturing), and that this could not be regarded, in isolation, as sufficient due cause in the sense of Article 13 of the basic Regulation.

(39) With regard to the different market situations in the Community and other third markets, no evidence was provided and this argument had therefore to be rejected.

(40) Consequently, the change in the pattern of trade between the exporting countries concerned and the Community was found to stem from a process of assembly of Chinese parts in Vietnam for which no other economic justification was found other than the imposition of the duty on imports of RBMs from the People's Republic of China.

2.3.4. Undermining of the remedial effect of the anti-dumping duty

(41) It was analysed whether the imported products have, in terms of prices and/or quantities, undermined the remedial effects of the measures in force on imports of RBMs from the People's Republic of China.

(42) The trade flow analysis shows that the change in the pattern of Community imports, which occurred since the imposition of definitive measures on imports originating in China and Indonesia, has undermined the remedial effects of the anti-dumping measures in terms of quantities imported into the Community market. Indeed, the Vietnamese company exported significantly more to the Community during the IP of this investigation than its related company in the People's Republic of China had during the investigation period of the original investigation.

(43) With regard to prices of the product consigned from Vietnam, it was found that the prices to unrelated customers in the Community were on overall average lower than the dumped export prices from its related company in the People's Republic of China during the IP in the original investigation. In addition, prices of Vietnamese exports are below the injury elimination level established for Community producers in the original investigation.

(44) The Vietnamese exporter argued that the Commission had not examined whether imports of RBMs from Vietnam have undermined the impact of anti-dumping duties from the perspective of the Community industry, i.e. whether imports from Vietnam are having significant adverse effects on the Community producers. It was argued that, in particular, no proper assessment of the competitive conditions in the market place and its changes since the imposition of the original duties has been carried out.

(45) It should be noted that no such examination is required by the basic Regulation within the framework of the current investigation. The objective of this investigation is merely to determine whether imports from Vietnam are circumventing the measures in force on imports of the product concerned from China. As mentioned above, this was found to be the case. The remedial effect of the original anti-dumping duties were through this circumvention practice undermined given the large quantities imported at prices even lower than during the original investigation period. The argument was therefore rejected.

(46) Therefore, it was concluded that the imports of the product concerned from Vietnam undermined the remedial effects of the duty in terms of prices and quantities.

2.3.5. Evidence of dumping

(47) Finally, in accordance with Article 13(1) of the basic Regulation it was examined whether there was evidence of dumping in relation to the normal value previously established for the like or similar products. In this regard, export prices of the Vietnamese cooperating producer/exporter of RBMs during the IP were compared with the normal value established in the investigation leading to the imposition of the definitive measures for the like product.

(48) For the purpose of a fair comparison between the normal value and the export price, due allowance, in the form of adjustments, was made for differences which affect prices and price comparability. These adjustments were made in accordance with Article 2(10) of the basic Regulation in respect of transport, insurance and credit.

(49) In accordance with Article 2(11) and (12) of the basic Regulation, a comparison of the weighted average normal value as established in the original investigation and the weighted average of export prices during this investigation's IP, expressed as a percentage of the cif price at the Community frontier duty unpaid, revealed significant dumping.

(50) One unrelated importer argued that the Commission should not establish the dumping margin with reference to the normal value as determined in the original investigation but that it should rather use the normal value determined in the ongoing expiry review. Similarly, the Vietnamese exporter argued that the Commission should establish normal value on the basis of the costs incurred in Vietnam.

(51) It should be noted that according to Article 13, evidence of dumping should be examined in relation to the normal values previously established. As regards the ongoing expiry review, no conclusions have yet been reached which could have been potentially used in the present investigation. These claims were therefore rejected.

2.4. Community interest

(52) One unrelated importer claimed that although not expressly mentioned in Article 13 of the basic Regulation, the Community interest should have been investigated in detail in particular taking into account the change in circumstances since the imposition of definitive measures.

(53) It is noted that the investigation leading to imposition of the original measures revealed that their imposition was in the Community interest. Article 13 does not require an investigation of whether circumstances with regard to the Community interest determination have changed since the imposition of measures. Nevertheless, irrespective of whether such investigation might be warranted, it is noted that in any event no elements have been put forward by any interested party suggesting that the imposition of measures would no longer be in the Community interest. Therefore, it is concluded that the extension of the measures to Vietnam, to counteract the circumvention taking place and which undermined the remedial effects of the original measures, is also in the Community interest. Consequently, this argument had to be rejected.

3. CONCLUSIONS

(54) The current investigation was initiated following a request received from the Community industry containing sufficient evidence of alleged transhipment of RBMs originating in the People's Republic of China via Vietnam. The above findings have indeed shown that there is circumvention of the measures on RBMs from China via Vietnam. Parts and components are shipped from the People's Republic of China to Vietnam and are subsequently assembled there before export of the finished product to the Community. In view of the finding of circumvention, it is proposed that the existing anti-dumping measures imposed on imports of the product concerned originating in the People's Republic of China be extended to the same product consigned from Vietnam, whether declared as originating in Vietnam or not.

(55) The measures to be extended should be the ones established in Article 1(2) of the original Regulation, as last amended by the anti-absorption proceeding, and are as follows: a) for mechanisms with 17 and 23 rings (TARIC code: 8305100020), the amount of duty shall be equal to the difference between the minimum import price of EUR 325 per 1 000 pieces and the free-at-Community-frontier not cleared through customs price; b) for mechanisms other than those with 17 or 23 rings (TARIC code: 8305100010), the residual duty of 78,8 %.

(56) In accordance with Article 14(5) of the basic Regulation, which provides that any extended measures should apply to imports which entered the Community under registration imposed by the initiating Regulation, duties should be collected on those registered imports of certain RBMs consigned from Vietnam.

4. REQUEST FOR EXEMPTION

(57) The sole cooperating exporter has lodged a request to be exempted from the proposed extended anti-dumping duty pursuant to Article 13(4) of the basic Regulation.

(58) The investigation revealed that this company's exports circumvented the measures imposed on imports of the product concerned originating in the People's Republic of China. Consequently, in line with Article 13(4) of the basic Regulation, the request for exemption should be refused.

(59) Although during this investigation no other exporter of RBMs to the Community was found to exist in Vietnam, other exporters concerned which intend to lodge a request for an exemption from the extended anti-dumping duty pursuant to Article 13(4) of the basic Regulation will be required to complete a questionnaire in order to enable the Commission to determine whether an exemption may be warranted. Such exemption may be granted after the assessment of the market situation of the product concerned, production capacity and capacity utilisation, procurement and sales and the likelihood of continuation of practices for which there is insufficient due cause or economic justification and the evidence of dumping. The Commission would normally also carry out an on-the-spot verification visit. The request would have to be addressed to the Commission forthwith, with all relevant information, in particular any modification in the company's activities linked to production and export sales of the product under consideration,

HAS ADOPTED THIS REGULATION:

Article 1 1. The definitive anti-dumping duties imposed by Regulation (EC) No 119/97 on imports of certain ring-binder mechanisms, falling within CN code ex 8305 10 00 originating in the People's Republic of China, are hereby extended to imports of certain ring-binder mechanisms, consigned from Vietnam, whether declared as originating in Vietnam or not (TARIC codes 8305100011 and 8305100021). For the purpose of this Regulation, ring-binder mechanisms shall consist of two rectangular steel sheets or wires with at least four half-rings made of steel wire fixed on it and which are kept together by a steel cover. They can be opened either by pulling the half-rings or with a small steel-made trigger mechanism fixed to the ring-binder mechanism. 2. The duties extended by paragraph 1 of this Article shall be collected on imports registered in accordance with Articles 13(3) and 14(5) of Regulation (EC) No 384/96. 3. The provisions in force concerning customs duties shall apply.

Article 2 1. Requests for exemption from the duty extended by Article 1 shall be made in writing in one of the official languages of the Community and must be signed by a person authorised to represent the applicant. The request must be sent to the following address: European Commission Directorate-General for Trade Directorate B Office: J-79 05/17 B-1049 Brussels Fax (32-2) 295 65 05 Telex COMEU B 21877 2. In accordance with Article 13(4) of Regulation (EC) No 384/96, the Commission, after consulting the Advisory Committee, may authorise, by decision, the exemption of imports from companies which do not circumvent the anti-dumping measures imposed by Regulation (EC) No 119/97, from the duty extended by Article 1.

Article 3 Customs authorities are hereby directed to discontinue the registration of imports, established in accordance with Article 2 of Regulation (EC) No 1733/2003.

Article 4 This Regulation shall enter into force on the 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 Luxembourg, 28 June 2004. For the Council The President M. CULLEN

(1) OJ L 56, 6.3.1996, p. 1. Regulation as last amended by Council Regulation (EC) No 461/2004 (OJ L 77, 13.3.2004, p. 12).

(2) OJ L 22, 24.1.1997, p. 1. Regulation as amended by Regulation (EC) No 2100/2000 (OJ L 250, 5.10.2000, p. 1).

(3) OJ C 21, 24.1.2002, p. 25.

(4) OJ L 249, 1.10.2003, p. 24.