COMMISSION IMPLEMENTING REGULATION (EU) 2020/2162

of 18 December 2020

initiating an investigation concerning possible circumvention of the anti-dumping measures imposed by Implementing Regulation (EU) 2015/2384 and Implementing Regulation (EU) 2017/271 on imports of certain aluminium foil originating in the People’s Republic of China by imports of certain aluminium foil consigned from Thailand, whether declared as originating in Thailand or not, and making such imports subject to registration

THE EUROPEAN COMMISSION,

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

Having regard to Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (1) (‘the basic Regulation’), and in particular Articles 13(3) and 14(5) thereof,

After having informed the Member States,

Whereas:

A. REQUEST

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

(2) The request was lodged on 9 November 2020. The applicant has requested anonymity and duly substantiated it in the request. The Commission considers that there are sufficient grounds to grant the confidentiality of the applicant’s identity.

B. PRODUCT

(3) The product concerned by the possible circumvention is aluminium foil of a thickness of not less than 0,008 mm and not more than 0,018 mm, not backed, not further worked than rolled, in rolls of a width not exceeding 650 mm and of a weight exceeding 10 kg, classified on the date of entry into force of Commission Implementing Regulation (EU) 2015/2384 (2) under CN code ex 7607 11 19 (TARIC code 7607111910), aluminium foil of a thickness of not less than 0,007 mm and less than 0,008 mm, regardless of the width of the rolls, whether or not annealed, classified on the date of entry into force of Commission Implementing Regulation (EU) 2017/271 (3) under CN code ex 7607 11 19 (TARIC code 7607111930), aluminium foil of a thickness of not less than 0,008 mm and not more than 0,018 mm and in rolls of a width exceeding 650 mm, whether or not annealed, classified on the date of entry into force of Implementing Regulation (EU) 2017/271 under CN code ex 7607 11 19 (TARIC code 7607111940), aluminium foil of a thickness of more than 0,018 mm and less than 0,021 mm, regardless of the width of the rolls, whether or not annealed, classified on the date of entry into force of Regulation (EU) 2017/271 under CN code ex 7607 11 19 (TARIC code 7607111950), and/or aluminium foil of a thickness of not less than 0,021 mm and not more than 0,045 mm, when presented with at least two layers, regardless of the width of the rolls, whether or not annealed, classified on the date of entry into force of Implementing Regulation (EU) 2017/271 under CN code ex 7607 11 90 (TARIC codes 7607119045 and 7607119080) and originating in the People’s Republic of China (‘the product concerned’). This is the product to which the measures that are currently in force apply.

(4) The product under investigation is the same as that defined in the preceding recital, currently falling under CN codes ex 7607 11 19 (TARIC codes 7607111910, 7607111930, 7607111940, 7607111950) and ex 7607 11 90 (TARIC codes 7607119044, 7607119046, 7607119071, 7607119072), but consigned from Thailand, whether declared as originating in Thailand or not (TARIC additional code C601), (‘the product under investigation’).

C. EXISTING MEASURES

(5) The measures currently in force and possibly being circumvented are anti-dumping measures imposed by Implementing Regulation (EU) 2015/2384 and extended by Implementing Regulation (EU) 2017/271 as last amended by Implementing Regulation (EU) 2017/2213 (‘the existing measures’).

D. GROUNDS

(6) The request contains sufficient evidence that the existing anti-dumping measures on imports of the product concerned are being circumvented by imports of the product under investigation.

(7) The evidence in the request shows the following.

(8) A change in the pattern of trade involving exports from the People’s Republic of China and Thailand to the Union has taken place following the imposition of measures on the product concerned.

(9) This change appears to stem from the consignment of the product concerned via Thailand to the Union after having undergone assembly operations in Thailand. The evidence shows that such assembly operations constitute circumvention as these operations started or substantially increased since, or just prior to, the initiation of the anti-dumping investigation. Moreover the parts from the People’s Republic of China used during these assembly operations constitute above 60 % of the total value of the assembled product and while value added during the assembly operations is lower than 25 % of the manufacturing cost.

(10) Furthermore, the evidence shows that because of the practices described above the remedial effects of the existing anti-dumping measures on the product concerned are being undermined both in terms of quantity and prices. Significant volumes of imports of the product under investigation appear to have entered the EU market. In addition, there is sufficient evidence that imports of the product under investigation are made at injurious prices.

(11) Finally, the evidence shows that the prices of the product under investigation are dumped in relation to the normal value previously established for the product concerned.

(12) Should circumvention practices covered by Article 13 of the basic Regulation, other than the ones mentioned above, be identified in the course of the investigation, the investigation may also cover these practices.

E. PROCEDURE

(13) In light of the above, the Commission has concluded that sufficient evidence exists to justify the initiation of an investigation pursuant to Article 13(3) of the basic Regulation and to make imports of the product under investigation subject to registration, in accordance with Article 14(5) of the basic Regulation.

(14) In order to obtain the information necessary for this investigation, all interested parties should contact the Commission forthwith, but not later than the time-limit set in Article 3(2) of this Regulation. The time-limit set in Article 3(2) of this Regulation applies to all interested parties. Information, as appropriate, may also be sought from the Union industry.

(15) The authorities of Thailand and the People’s Republic of China will be notified of the initiation of the investigation.

(a) Collection of information and holding of hearings

(16) All interested parties including the Union industry, importers and any relevant association are invited to make their views known in writing and to provide supporting evidence provided that such submissions are made within the deadline provided for in Article 3(2). Furthermore, the Commission may hear interested parties, provided that they make a request in writing and show that there are particular reasons why they should be heard.

(b) Requests for exemptions

(17) In accordance with Article 13(4) of the basic Regulation, imports of the product under investigation may be exempted from measures if the importation does not constitute circumvention.

(18) Since the possible circumvention takes place outside the Union, exemptions may be granted, in accordance with Article 13(4) of the basic Regulation, to producers of the product under investigation in Thailand that can show that they are not engaged in circumvention practices as defined in Articles 13(1) and 13(2) of the basic Regulation. Producers, if any, wishing to obtain an exemption should come forward within the time-limit indicated in Article 3(1) of this Regulation. Copies of the questionnaire for exporting producers in the People’s Republic of China, the exemption claim form questionnaire for exporting producers in Thailand and questionnaires for importers in the EU are available in the file for inspection by interested parties and on DG Trade’s website: https://trade.ec.europa.eu/tdi/case_details.cfm?id=2502. The questionnaires have to be submitted within the time-limit indicated in Article 3(2) of this Regulation.

F. REGISTRATION

(19) Pursuant to Article 14(5) of the basic Regulation, imports of the product under investigation shall be made subject to registration in order to ensure that, should the investigation result in findings of circumvention, anti-dumping duties of an appropriate amount, not exceeding the residual duty imposed by Implementing Regulation (EU) 2015/2384 and extended by Implementing Regulation (EU) 2017/271 as last amended by Implementing Regulation (EU) 2017/2213 can be levied from the date on which registration of such imports was imposed.

G. TIME-LIMITS

(20) In the interest of sound administration, time-limits should be stated within which: — interested parties may make themselves known to the Commission, submit questionnaires, present their views in writing or any other information to be taken into account during the investigation, — producers in Thailand may request exemptions from registration of imports or measures, — interested parties may make a written request to be heard by the Commission.

(21) Attention is drawn to the fact that the exercise of procedural rights set out in the basic Regulation depends on parties making themselves known within the time-limits laid down in Article 3 of this Regulation.

H. NON-COOPERATION

(22) If any interested party refuses access to or does not provide the necessary information within the time-limits, or significantly impedes the investigation, findings, affirmative or negative, may be made on the basis of facts available in accordance with Article 18 of the basic Regulation.

(23) Where it is found that any interested party has supplied false or misleading information, the information shall be disregarded and use may be made of facts available in accordance with Article 18 of the basic Regulation.

(24) If an interested party does not cooperate or cooperates only partially and findings are therefore based on the facts available in accordance with Article 18 of the basic Regulation, the result may be less favourable to that party than if it had cooperated.

I. SCHEDULE OF THE INVESTIGATION

(25) The investigation will be concluded, pursuant to Article 13(3) of the basic Regulation, within nine months of the date of entry into force of this Regulation.

J. PROCESSING OF PERSONAL DATA

(26) It is noted that any personal data collected in this investigation will be treated in accordance with Regulation (EU) 2018/1725 of the European Parliament and of the Council (4).

(27) A data protection notice that informs all individuals of the processing of personal data in the framework of Commission’s trade defence activities is available on DG Trade’s website: http://ec.europa.eu/trade/policy/accessing-markets/trade-defence/

K. HEARING OFFICER

(28) Interested parties may request the intervention of the Hearing Officer for trade proceedings. The Hearing Officer reviews requests for access to the file, disputes regarding the confidentiality of documents, requests for extension of time limits and any other request concerning the rights of defence of interested parties and third parties as may arise during the proceeding.

(29) The Hearing Officer may organise hearings and mediate between the interested party/-ies and Commissions services to ensure that the interested parties’ rights of defence are being fully exercised. A request for a hearing with the Hearing Officer should be made in writing and should specify the reasons for the request. The Hearing Officer will examine the reasons for the requests. These hearings should only take place if the issues have not been settled with the Commission services in the due course.

(30) Any request must be submitted in good time and expeditiously so as not to jeopardise the orderly conduct of proceedings. To that effect, interested parties should request the intervention of the Hearing Officer at the earliest possible time following the occurrence of the event justifying such intervention. In principle, the timeframes set out in Article 3(3) of this Regulation to request hearings with the Commission services apply mutatis mutandis to requests for hearings with the Hearing Officer. Where hearing requests are submitted outside the relevant timeframes, the Hearing Officer will also examine the reasons for such late requests, the nature of the issues raised and the impact of those issues on the rights of defence, having due regard to the interests of good administration and the timely completion of the investigation.

(31) For further information and contact details interested parties may consult the Hearing Officer’s web pages on DG TRADE’s website: http://ec.europa.eu/trade/trade-policy-and-you/contacts/hearing-officer/

HAS ADOPTED THIS REGULATION:

Article 1 An investigation is initiated pursuant to Article 13(3) of Regulation (EU) 2016/1036, in order to determine if imports of aluminium foil of a thickness of not less than 0,008 mm and not more than 0,018 mm, not backed, not further worked than rolled, in rolls of a width not exceeding 650 mm and of a weight exceeding 10 kg, aluminium foil of a thickness of not less than 0,007 mm and less than 0,008 mm, regardless of the width of the rolls, whether or not annealed, aluminium foil of a thickness of not less than 0,008 mm and not more than 0,018 mm and in rolls of a width exceeding 650 mm, whether or not annealed, aluminium foil of a thickness of more than 0,018 mm and less than 0,021 mm, regardless of the width of the rolls, whether or not annealed, currently classified under CN code ex 7607 11 19 (TARIC codes 7607111910, 7607111930, 7607111940, 7607111950), and/or aluminium foil of a thickness of not less than 0,021 mm and not more than 0,045 mm, when presented with at least two layers, regardless of the width of the rolls, whether or not annealed, currently classified under CN code ex 7607 11 90 (TARIC codes 7607119044, 7607119046, 7607119071, 7607119072), consigned from Thailand, whether declared as originating in Thailand or not (TARIC additional code C601), are circumventing the measures imposed by Commission Implementing Regulation (EU) 2015/2384 and extended by Implementing Regulation (EU) 2017/271, as last amended by Implementing Regulation (EU) 2017/2213.

Article 2 1. The customs authorities of the Member States shall, pursuant to Article 13(3) and Article 14(5) of Regulation (EU) 2016/1036, take the appropriate steps to register the imports identified in Article 1 of this Regulation. 2. Registration shall expire nine months following the date of entry into force of this Regulation. 3. The Commission may direct customs authorities to cease registration in respect of imports of products made by exporters/producers having applied for an exemption from registration and having been found to fulfil the conditions for an exemption to be granted.

Article 3 1. Interested parties must make themselves known by contacting the Commission within 15 days from the date of entry into force of this Regulation. 2. Interested parties, if their representations are to be taken into account during the investigation, must present their views in writing and submit questionnaire replies, in case an exemption is requested from registration of imports or measures, or any other information within 37 days from the date of the publication of this Regulation in the Official Journal of the European Union, unless otherwise specified. 3. Interested parties may also apply to be heard by the Commission within the same 37-day time limit. For hearings pertaining to the initiation stage of the investigation the request must be submitted within 15 days of the date of entry into force of this Regulation. Any request to be heard must be made in writing and must specify the reasons for the request. 4. Information submitted to the Commission for the purpose of trade defence investigations shall be free from copyrights. Interested parties, before submitting to the Commission information and/or data which is subject to third party copyrights, must request specific permission to the copyright holder explicitly allowing a) the Commission to use the information and data for the purpose of this trade defence proceeding and b) to provide the information and/or data to interested parties to this investigation in a form that allows them to exercise their right of defence. 5. All written submissions, including the information requested in this Regulation, completed questionnaires and correspondence provided by interested parties for which confidential treatment is requested shall be labelled ‘Sensitive (5). Parties submitting information in the course of this investigation are invited to reason their request for confidential treatment. 6. Parties providing ‘Sensitive’ information are required to furnish non-confidential summaries of it pursuant to Article 19(2) of Regulation (EU) 2016/1036, which will be labelled ‘For inspection by interested parties’. These summaries should be sufficiently detailed to permit a reasonable understanding of the substance of the information submitted in confidence. 7. If a party providing confidential information fails to show good cause for a confidential treatment request or does not furnish a non-confidential summary of it in the requested format and quality, the Commission may disregard such information unless it can be satisfactorily demonstrated from appropriate sources that the information is correct. 8. Interested parties are invited to make all submissions and requests via TRON.tdi (https://webgate.ec.europa.eu/tron/TDI) including scanned powers of attorney and certification sheets. In order to have access to TRON.tdi, interested parties need an EU Login account. Full instructions on how to register and use TRON.tdi are available on https://webgate.ec.europa.eu/tron/resources/documents/gettingStarted.pdf By using TRON.tdi or email, interested parties express their agreement with the rules applicable to electronic submissions contained in the document ‘CORRESPONDENCE WITH THE EUROPEAN COMMISSION IN TRADE DEFENCE CASES’ published on the website of the Directorate-General for Trade: http://trade.ec.europa.eu/doclib/docs/2011/june/tradoc_148003.pdf The interested parties must indicate their name, address, telephone and a valid email address and they should ensure that the provided email address is a functioning official business email which is checked on a daily basis. Once contact details are provided, the Commission will communicate with interested parties by email only, unless they explicitly request to receive all documents from the Commission by another means of communication or unless the nature of the document to be sent requires the use of a registered mail. For further rules and information concerning correspondence with the Commission including principles that apply to submissions by email, interested parties should consult the communication instructions with interested parties referred to above. Commission address for correspondence: European Commission Directorate-General for Trade Directorate G Office: CHAR 04/039 1049 Brussels BELGIUM TRON.tdi: https://webgate.ec.europa.eu/tron/tdi Email: TRADE-AC-ALUFOIL@ec.europa.eu

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 Brussels, 18 December 2020. For the Commission The President Ursula VON DER LEYEN

(1) OJ L 176, 30.6.2016, p. 21.

(2) Commission Implementing Regulation (EU) 2015/2384 of 17 December 2015 imposing a definitive anti-dumping duty on imports of certain aluminium foils originating in the People’s Republic of China and terminating the proceeding for imports of certain aluminium foils originating in Brazil following an expiry review pursuant to Article 11(2) of Council Regulation (EC) No 1225/2009 (OJ L 332, 18.12.2015, p. 63).

(3) Commission Implementing Regulation (EU) 2017/271 of 16 February 2017 extending the definitive anti-dumping duty imposed by Council Regulation (EC) No 925/2009 on imports of certain aluminium foil originating in the People’s Republic of China to imports of slightly modified certain aluminium foil (OJ L 40, 17.2.2017, p. 51) and amended by Commission Implementing Regulation (EU) 2017/2213 of 30 November 2017 amending Commission Implementing Regulation (EU) 2017/271 extending the definitive anti-dumping duty imposed by Council Regulation (EC) No 925/2009 on imports of certain aluminium foil originating in the People’s Republic of China to imports of slightly modified certain aluminium foil (OJ L 316, 1.12.2017, p. 17).

(4) Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39).

(5) A ‘Sensitive’ document is a document which is considered confidential pursuant to Article 19 of the basic Regulation and Article 6 of the WTO Agreement on Implementation of Article VI of the GATT 1994 (Anti-Dumping Agreement). It is also a document protected pursuant to Article 4 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council (OJ L 145, 31.5.2001, p. 43).