COMMISSION IMPLEMENTING REGULATION (EU) 2022/191

of 16 February 2022

imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People’s Republic of China

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 Article 9(4) thereof,

Whereas:

1. PROCEDURE

1.1. Initiation

(1) On 21 December 2020, the European Commission (‘the Commission’) initiated an anti-dumping investigation with regard to imports of certain iron or steel fasteners (‘fasteners’) originating in the People’s Republic of China (‘China’ or ‘the PRC’ or ‘the country concerned’), on the basis of Article 5 of the basic Regulation. It published a Notice of Initiation in the Official Journal of the European Union (2) (‘the notice of initiation’).

(2) The Commission initiated the investigation following a complaint lodged on 6 November 2020 by the European Industrial Fasteners Institute (‘EIFI’ or ‘the complainant’) on behalf of producers representing more than 25 % of the total Union production of iron or steel fasteners (also referred to as the ‘complainants’). Furthermore, the complaint was supported by producers accounting for over 58 % of the total Union production in the period from July 2019 to June 2020. The complaint contained evidence of dumping and of resulting material injury that was sufficient to justify the initiation of the investigation.

1.2. Registration

(3) Following a request by the complainant supported by the required evidence, the Commission made imports of fasteners originating in China subject to registration by Commission Implementing Regulation (EU) 2021/970 (3) (‘the registration Regulation’) under Article 14(5) of the basic Regulation.

(4) Following the publication of the registration Regulation, the Commission received comments from several importers, the European Fasteners Distributor Association (‘EFDA’) and the China Chamber of Commerce of Import and Export of Machinery and Electronic Products (‘CCCME’). The Commission noted that, since no provisional measures were adopted, the Commission decided that retroactive collection of duties was not legally possible. Indeed, Article 10(4) of the basic Regulation provides that “a definitive anti-dumping duty may be levied on products which were entered for consumption no more than 90 days prior to the date of application of provisional measures” (emphasis added). Therefore, all claims concerning the registration Regulation became moot and the registration Regulation is hereby repealed in full.

(5) EFDA finally claimed that in case the Commission did not impose provisional measures, the registration Regulation would become void and should be withdrawn, arguing that the sole purpose of the registration Regulation would be to impose definitive measures retroactively and that in case of non-imposition of provisional measures, the retroactive application of definitive measures is not feasible anymore under Article 10(4) of the basic Regulation. The Commission agreed and repealed the registration Regulation. The need to impose definitive anti-dumping duties retroactively is assessed in recitals (591) and following.

1.3. Interested parties

(6) In the Notice of Initiation, the Commission invited interested parties to contact it in order to participate in the investigation. In addition, the Commission specifically informed the complainant, other known Union producers, the known exporting producers and the Chinese authorities, known importers, users, as well as associations known to be concerned by the initiation of the investigation and invited them to participate.

(7) The CCCME requested to be considered as an interested party, arguing that it represented the Chinese fasteners industry. EIFI contested CCCME’s status as an interested party claiming that the CCCME did not show any objective link between its activities and the product subject to this investigation; in particular, the CCCME did not submit any Articles of Association or any list of its members showing that it could represent the Chinese fasteners industry. EIFI claimed that to the contrary, the CCCME website lists 25 industry sectors, without specifically mentioning the fasteners industry. EIFI also claimed that although the CCCME provided power of attorneys from several companies, there is no prove that those companies were producers of fasteners. In any event, the CCCME, as a State-run organisation, was merely representing the interests of China and not those of an industry as such.

(8) The Commission confirmed that the CCCME was empowered by a number of fasteners producers in the PRC to act on their behalf. The CCCME could be an interested party to this proceeding only to the extent it was empowered by those specific fasteners producers to represent them.

1.4. Comments on initiation of the investigation

(9) Interested parties had an opportunity to comment on the initiation of the investigation and to request hearings with the Commission and/or the Hearing Officer in trade proceedings. None of the interested parties requested a hearing on the initiation of the investigation.

(10) Upon initiation, two importers contested that the investigation period chosen by the Commission (1 July 2019 to 30 June 2020) represented the period immediately prior to the initiation of the investigation and suggested that the appropriate investigation period should be set from 1 October 2019 to 30 September 2020 as required under Article 6(1) of the basic Regulation.

(11) In line with its practice and taking into consideration the specific circumstances of each investigation, the Commission considered that the period 1 July 2019 to 30 June 2020 was appropriate for the purpose of making a representative finding. The Union industry of fasteners is largely composed of small and medium sized enterprises (‘SMEs’) and the reporting of accounting data not based on half years would have been unduly burdensome. In addition, the product under investigation has many different variations and types that demanded an exceptionally high number of accounting data to be converted and compiled for the purpose of the current investigation. Article 6(1) of the basic Regulation allows for deviation in justified cases such as the current one. Therefore, the claim that the selected investigation period was inappropriate was rejected.

(12) The same two importer claimed that based on the macroeconomic indicators provided in the complaint, the Union industry did not suffer material injury and that there is no causal link between imports from China and the injury suffered by the complainant.

(13) The Commission considered that the information provided by the complainant was sufficient to satisfy the legal standard for initiation under Article 5 of the basic Regulation in respect to both material injury and causation. It is recalled that the standard of evidence at the complaint stage is lower than the one required for the imposition of measures. In particular, the complaint showed a substantial increase in imports from China that almost tripled between 2016 and the investigation period of the complaint, which translated in an increase of market share reaching 15 % during the investigation period of the complaint. The prices of these imports were severely undercutting the sales prices of the Union industry on the Union market. There was a parallel decrease of the Union industry’s production and sales volume, loss of employment, decrease in investments and a suppression of price levels that resulted in a significant loss of profitability for the Union industry (around minus 50 % between 2016 and the investigation period of the complaint). Since these developments happened in parallel to the increase of imports from China and since no other factors were identified that could have caused the downturn of the Union industry, the Commission concluded that there was sufficient evidence that the material injury was caused by imports from China.

(14) The CCCME expressed doubts concerning the import volumes in the complaint, in specific the estimations made by the complainant to exclude imports of stainless steel fasteners from the total import volume under certain CN codes. They also noted that no such adjustments were made with regards to imports from other third countries. The CCCME did not offer any alternative methodology in order to estimate import volumes of stainless steel fasteners.

(15) The Commission found the methodology proposed by the complainants reasonable as it was based on historical data and the best market knowledge of the complainant. The fact that no adjustment was made for other import sources potentially resulted in the market share of Chinese imports being underestimated and thus did not put into question the overall assessment in the complaint. Since CCCME did not propose any other methodology which would be more appropriate than the one proposed by the complainants, the Commission dismissed the CCCME claims.

1.5. Request for anonymity

(16) Most of the Union producers that were either represented by the complainant – EIFI -, or supporters of the complaint requested to obtain anonymity treatment in order to prevent possible retaliatory actions by customers in the Union that also sourced fasteners from Chinese suppliers. These customers included some large companies with significant market power compared to the Union producers of fasteners that are mostly SMEs.

(17) Two importers contested the decision of the Commission to grant anonymity to these companies as they claimed that there was no evidence of any possible adverse effect.

(18) The Commission disagreed. Considering the asymmetry between the Union fasteners producers and users, it concluded that the risk of retaliation alleged by the Union producers represented by EIFI and supporters indeed existed. (4) On this basis, the Commission granted confidential treatment to the name of these companies. The claims against this confidential treatment were therefore rejected.

(19) Following final disclosure the CCCME and EFDA claimed that no proper request was made by the sampled Union producers for anonymity.

(20) The Commission received requests for anonymity from the sampled Union producers on 8 January 2021, after having previously received, on 18 December 2020, a request from the complainant EIFI to continue treating the names of the complainants and supporters confidential after initiation of the investigation and until individual requests from the sampled Union producers could be filed. Given the seriousness of the threats of retaliation, and being aware of the intention of the sampled Union producers to provide the relevant requests, the Commission considered it appropriate to protect already their identities between the initiation of the investigation on 21 December 2020 and 8 January 2021 when such requests were received. The requests were received and accepted for all Union producers that were finally selected in the sample. EFDA also claimed that EIFI was not entitled to submit such requests that should have been provided on a company individual basis. As EIFI has the mandate to represent both, the complainant Union industry as well as its individual members, and given the EIFI only forwarded the individual requests signed by the companies concerned, this claim was rejected.

(21) The same parties further claimed that there were no grounds to keep the names of the sampled companies confidential because the participation in the sample does not imply whether a company is complainant or supporter, but merely that it is cooperating. In this regard they referred to the Appellate Body Report EC- Fasteners (China) (5) where the Commission took a similar view. The same parties also asserted that interested parties opposing measures had an interest that as many Union producers as possible cooperated and provided information to the Commission and that therefore the fear for retaliation was unfounded. The Mission of the People’s Republic of China to the European Union, similarly, contested that there was any conclusive evidence of a threat of retaliation from customers in the Union. The Commission accepted the requests for anonymity of the sampled Union producers as the threats of retaliation were not only present for the complainants and supporters, but also for the sampled Union producers as evidenced by the requests received. The re-assurances received from EFDA and the CCCME following the final disclosure could not dissimulate the existence of such threats. All claims in this regard were therefore was rejected.

1.6. Claims on confidentiality

(22) Following the final disclosure, the CCCME and EFDA reiterated that the non-confidential file was insufficient in parts and that adequate non confidential summaries were not always provided. They submitted that good cause has to be shown for confidential treatment and that non-confidential summaries must contain sufficient detail to permit a reasonable understanding of the information submitted in confidence. Both parties provided a list of examples where such criteria were allegedly not met.

(23) The Commission notes that the examples cited following the final disclosure were either already previously subject to requests for further disclosure by those parties and were duly addressed during the investigation in bilateral communications with these parties and during a hearing held with the Hearing Officer on 29 November 2021 requested by EFDA; or related to information that was not part of the essential facts and considerations on which the Commission based its final findings; or were considered unwarranted because due cause for confidential treatment was shown and non-confidential summaries provided were in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence in accordance with Article 19(2) of the basic Regulation. One of the requests related to the comments of another interested party following disclosure that was made available in the non-confidential file within three days. These claims were therefore rejected.

1.7. Claims on the management of the non-confidential file

(24) Following final disclosure, the CCCME and EFDA reiterated their concerns regarding the management of the non-confidential file alleging that (i) certain correspondence with the complainant was missing from the non-confidential file, that (ii) other correspondence was deleted and (iii) that certain documents were only uploaded at a very late stage.

(25) The Commission notes that these claims were already previously subject to clarification by the Commission in bilateral communications with these parties and during a hearing held with the Hearing Officer on 29 November 2021 requested by EFDA. In addition, the claim that certain correspondence with the complainant was missing in the file is also addressed in recital (47)and the claim regarding the alleged late information to interested parties in relation to the revision of the sample of Union producers in recital (44). These claims were therefore rejected.

1.8. Sampling

1.8.1. Sampling of Union producers

(26) In its Notice of Initiation, the Commission stated that it had provisionally selected a sample of Union producers. The Commission selected the sample on the basis of production and sales volumes in the Union reported by the Union producers in the standing form, taking also into account their geographical location and a representation of SMEs. This sample consisted of six Union producers, located in four different Member States. The Commission invited interested parties to comment on the provisional sample.

(27) One of the provisionally sampled Union producers (an SME) informed the Commission that it would not be able to provide a complete questionnaire. The Commission therefore decided to revise the sample of Union producers by replacing this company by the next largest SME in the same Member State.

(28) EFDA claimed that it could not provide meaningful comments on the selected sample, as insufficient time was granted and because of the anonymity granted to the sampled Union producers. The CCCME claimed that the anonymity of the Union producers prevented them to know the product mix produced of the selected companies and to verify publicly available information of those companies. EFDA and the CCCME argued that while anonymity was requested by and granted to the complainants and supporters of the complaint, such treatment could not be automatically extended to the sampled Union producers. They argued that the sampled Union producers were merely cooperating parties and therefore not necessarily complainants or supporters. There was thus no reason for the Commission to treat the identity of the sampled Union producers as confidential. As no separate request for anonymity by the sampled Union producers had been received the Commission unduly granted such treatment to the selected Union producers.

(29) EFDA and the CCCME further argued that in any event, there was no good cause for such treatment as it prevented interested parties to provide meaningful comments on the selected sample and reasoned that in accordance with Article 19 of the basic Regulation, the protection of confidential information must be weighed against the rights of defence of the interested parties.

(30) The British and Irish Association of Fastener Distributors (‘BIFAD’), in the name of their Irish members, similarly claimed that insufficient time was granted to provide comments on the provisional sample and that the anonymity granted to the selected companies would prevent them to assess whether the sample was selected in a reasonable and balanced manner. They requested that more information concerning each company’s output, capacities, product range and markets serviced should be provided to them.

(31) Concerning the time frame granted to comment on the provisional sample, interested parties were granted 7 days as from the initiation of the investigation which was extended by further 7 days considering the special circumstances of this case that was considered largely sufficient also considering the strict deadlines applicable to anti-dumping investigations. The Commission notes that all interested parties actively cooperating with the investigation provided comments within this time frame. Therefore, the claim that parties had insufficient time to comment on the provisional sample was rejected.

(32) Regarding the anonymity of the sampled Union producers, on 18 December 2020, a request was filed that the anonymous treatment granted to the complainant and supporters at pre-initiation stage should be extended to the investigation. As sampling is part of the investigation the confidential treatment covered thus also the sampling exercise. Furthermore, on 8 January 2021, the Union producers selected in the sample specifically requested anonymity during the investigation.

(33) By granting anonymity to the sampled Union producers the Commission duly balanced the risk of retaliation, on the one hand, and the rights of interested parties, on the other hand, and concluded that there was an overwhelming risk of retaliation that justified granting confidentiality to the sampled Union producers in relation to their identity. The arguments in this regard were therefore rejected.

(34) Regarding the request to provide further information on output, capacities and product ranges manufactured, the Commission considered that disclosing such information per company would enable interested parties to identify the Union producers concerned. However, it is noted that, in view of the high matching between Union prices and export prices, most of the product types produced by the sampled Union producers were disclosed to the sampled exporting producers through the detailed undercutting and underselling calculations. It is also noted that the methodology to select the sample was duly disclosed to interested parties and no comments were received on the methodology as such. This request was therefore rejected.

(35) During the investigation, one of the sampled Union producers informed the Commission that it would not be able to respond to the Commission’s full questionnaire. Another sampled Union producer was not in a position to provide sufficient assurance on the data provided for verification. These Union producers were therefore excluded from the sample.

(36) To ensure that the sample remained representative in terms of the criteria set out in Article 17, the Commission decided to revise the sample of Union producers by replacing the above companies with the next two largest producers in terms of volumes and sales, while also taking into account geographical spread and wide product-type mix. As stated in the note to the file of 15 July 2021, the Commission relied on the information provided by the Union producers during the standing phase, which is also used for sampling purposes. In addition, the Commission sought publicly available information and checked the web sites of the companies concerned. The Commission contacted the companies and invited them to cooperate by filling in a questionnaire. Interested parties were given the opportunity to comment.

(37) The Commission received comments from the CCCME, EFDA and one exporting producer Celo Suzhou Precision Fasteners Ltd (‘Celo Suzhou’).

(38) The CCCME and EFDA claimed that insufficient time was granted to interested parties to provide comments on the amended sample. The Commission noted that neither the CCCME nor EFDA requested an extension of the deadline and that both submitted detailed comments on the amended sample of Union producers; their claim was therefore rejected.

(39) Both parties also reiterated that anonymity should not be granted to the sampled Union producers without, however, providing any further arguments. For the reasons set out in recital (32), these claims were therefore rejected.

(40) The CCCME furthermore argued that other interested parties were treated in a discriminatory way as strict deadlines were imposed on them, while the newly sampled Union producers had been given a deadline to reply to the questionnaire ending almost 6 months after the deadline granted to the originally sampled Union producers. In addition, considering that the Commission had sufficient time to analyse questionnaires received under this extended deadline, it had no reason to impose a much shorter deadline to interested parties to comment on the new sample.

(41) The Commission noted that all sampled Union producers, importers and exporting producers were treated equally and given 30 days plus justified extensions, if applicable to reply to questionnaires from when they were made aware that they had been sampled. Thus, CCCME’s claim that some sampled Union producers would have had more than 6 months to reply to the questionnaire is misleading. The Commission also notes that a sample is only finalised after appreciation of the comments received by interested parties and therefore the deadline to comment on the sample is set by the Commission accordingly, taking into consideration the overall deadlines of the investigation. Therefore, the Commission rejected the claim of discriminatory treatment.

(42) The CCCME and EFDA further claimed that the Commission had not informed interested parties of the withdrawal of the cooperation from the Union producers concerned in a timely manner and that it should also have notified interested parties of the amendment of the Union producer sample at an earlier stage. The CCCME referred to Article 6(7) of the basic Regulation, which stipulates that interested parties may ‘inspect all information made available by any party to an investigation’. EFDA stated that the Commission has taken a final decision on the Union producers’ sample without adequately taking into consideration comments of the interested parties which would be evidenced by the fact that the additionally selected Union producers were already sent questionnaires prior to the receipt of such comments.

(43) The CCCME and EFDA moreover suggested that instead of amending the Union producers’ sample, the Commission should base findings on facts available in accordance with Article 18 of the basic Regulation and terminate the investigation. The CCCME noted that in case exporting producers cease to cooperate during an investigation, facts available in accordance with Article 18 of the basic Regulation would be applied and that the same treatment should therefore be granted to the Union producers. Alternatively, the Commission should provide further information as to the methodology of the selection of the additional companies for the Union producers’ sample and in particular how those companies were identified, as well as the impact on the representativity of the final sample. In this regard, both parties also alleged that the Commission selected the additional companies solely on the basis of information provided by the complainant without receiving any input from other interested parties.

(44) Regarding the claim of insufficient disclosure, the Commission notes that it added all relevant information to the file in sufficient time to allow interested parties to comment. The Commission took all comments received into consideration and addressed them adequately. The statement that additional companies were selected solely on the basis of information provided by the complainant is factually wrong as also described in recital (36).

(45) Upon their request, the Commission provided additional information to EFDA and the CCCME regarding the revised sample including the impact on the representativity of the sample. The CCCME reiterated its request for disclosure of additional information regarding the precise share of the production and sale of standard and non-standard fasteners of the Union producers selected in the sample and clarification on the criteria and methodology used for the selection of the additional Union producers. The CCCME also requested disclosure of the communication between the complainant and the Commission concerning the selection of the additional Union producers.

(46) Concerning the claim to terminate the investigation because of lack of cooperation, the Commission emphasises that Article 17(4) of the basic Regulation specifically allows that in case of non-cooperation by some or all parties selected in a sample which is likely to materially affect the outcome of the investigation, a new sample might be selected. As to the claim of discrimination vis-à-vis exporting producers, the Commission notes that in case a sampled exporting producer ceases cooperation in an investigation, this exporter is excluded from the sample and the information provided disregarded. Where still possible, the Commission also substitutes such exporting producer in the sample. This same approach was also followed with regard to the Union producers in question. All claims made in this regard were therefore rejected.

(47) Regarding the request for further information, the Commission refers to recital (36) which sets out the criteria used for the selection of the additional Union producers as well as the methodology applied. The precise share of the production and sale of standard and non-standard fasteners of the Union producers was as such not a criterion for the selection of the sample, nor was the production of standard fastener the sole criterion to be selected in the sample. As set out in recital (110), all product types were considered as one single product. The Union industry produced and sold standard and non-standard fasteners, as well as the exporting producers exported to the Union industry standard and non-standard fasteners and there was an overlap in end use applications. Furthermore, when selecting companies to be included in the sample, this information is not available. The communication between the complainant and the Commission was disclosed in accordance with Article 6(7) of the basic Regulation, while respecting Article 19(1), which provides that information provided in confidence should be treated as such by the authorities. In accordance with Article 19 of the basic Regulation, the Commission made available to the interested parties a non-confidential summary of the information provided in confidence. These requests were therefore rejected.

(48) Celo Suzhou claimed that the sample of exporting producers should have taken into consideration the product types exported in order that export prices would be comparable to the sales prices of the producers selected in the Union industry sample. As noted in recital (36), the Commission selected a sample which ensured a wide product mix. Given the high matching found in this case (over 90 %), the Commission concluded that the sample of Union producers did include the product types most exported to the Union. The claim was therefore rejected.

(49) On the basis of the above, the final sample consisting of six Union producers was considered to be representative of the Union industry.

(50) Following final disclosure, EFDA reiterated that it could not provide meaningful comments on the Union producers’ sample given that the identity of the Union producers was kept confidential. They also re-iterated that the Commission failed to inform interested parties on the amendment of the sample during the investigation and that the Commission decided on the additional companies to be included in the sample already prior to informing interested parties and granting them an opportunity to comment. EFDA and the CCCME re-iterated that information was missing from the non-confidential file and that the Commission did not disclose the total production and sales volume of the sampled Union producers. The CCCME re-iterated its concern regarding the revision of the sample and alleged that there would have been no explanation why two of the Union producers dropped out.

(51) Regarding the claim on the anonymity of Union producers, this has already been addressed in recitals (16) to (21). Likewise, the claim on insufficient disclosure regarding the selection of the sample was already addressed in recital (44) as well as the claim on the completeness of the non-confidential file that was addressed in recital (47). The Commission also disclosed the reasons for the revision of the sample in recital (35), in addition this information was also in the non-confidential file prior to disclosure. As no further arguments were provided in this regard, these claims were rejected. Regarding the total production and sales volume of the sampled Union producers, these were as such not part of the analysis because these are macroeconomic indicators and therefore, there was no reason to provide such information to the interested parties. In particular, the Commission indicated in recital (352) how much the sampled companies represented of the total Union production and interested parties were in any event able to deduce total production volume of the sampled Union producers.

(52) EFDA further claimed that the Commission provided contradicting information regarding the number of Union producers’ sampled and the representativity of the sampled Union producers. EFDA also re-iterated its concerns relating to the procedure of selecting the sample and the information provided to interested parties in this regard.

(53) Concerning the number of the sampled companies, the general disclosure document contained indeed a clerical error in two paragraphs that indicated that four Union producers were sampled, instead of six. This error was immediately rectified upon notification to the Commission. The correct number of the sampled Union producers was communicated to the interested parties during the investigation in a note placed into the non-confidential file. Regarding the representativity of the sample, the Commission confirmed that all figures provided by the Commission were correct and therefore EFDA’s claim is unfounded. While the figure in the general disclosure document (9,5 %) indicated the representativity in relation to the total Union production, the figure provided to EFDA upon request during the investigation (18 %) indicated the representativity in relation to the total production volume of the Union producers that came forward prior to the initiation and provided the information necessary for the sampling exercise. This figure was communicated to EFDA upon request several months prior to disclosure and thus prior to the determination of the total production volume in the Union.

(54) With reference to the procedure followed, the Commission recalls that as set out in recital (46), in accordance to Article 17(4) of the basic Regulation, it had to amend the Union producers’ sample due to the non-cooperation of the two initially sampled companies. Regarding the consultation of interested parties and disclosure aspects during this process, this was already explained in detail in the recitals (28) to (47) above. The amendment of the preliminary selected sample at initiation was based on comments received from interested parties as part of the sampling process described in the Notice of initiation.

(55) The CCCME and EFDA finally claimed that the general disclosure document contained contradicting information concerning the methodology for the revision of the Union producer sample and that the information in the general disclosure document, also contradicted the communication sent by the Commission to the newly selected Union producers. In particular, the CCCME alleged that the share of production and sale volume of standard and non-standard fasteners was a key criterion to select the sample of Union producers, as allegedly evidenced by the communication referred to before to the newly selected Union producers. These allegations were factually wrong. The Commission did not indicate to any of the interested parties, including the newly selected Union producers, that the share of production and sale volume of standard and non-standard fasteners would be a key criterion for the selection of the sample. The Commission notes that these data are usually not available at that level of detail at the stage of the sampling. The same is true for the current investigation. This does not exclude that it was nonetheless possible for the Commission, on the basis of the available information, to determine on a global basis, whether a Union producer produced standard or non-standard fasteners, as explained in recital (36). These claims were therefore rejected.

(56) On a more general basis, EFDA asserted that the sample of Union producers was not representative as one of the two producers of standard fasteners selected in the sample was an SME and therefore only the data of the second would have a sizable impact. This statement was not substantiated any further. The Commission notes that three companies selected in the sample were SMEs while the other three were not. The Commission also noted that the sample ensured a representative product mix as set out in recital (36) and was overall considered representative for the Union industry. This claim was therefore rejected.

1.8.2. Sampling of importers

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

(58) Twenty-eight unrelated importers provided the requested information and agreed to be included in the sample. In accordance with Article 17(1) of the basic Regulation, the Commission selected a sample of five importers on the basis of the largest volume of imports of the product concerned. In accordance with Article 17(2) of the basic Regulation, interested parties were consulted on the selection of the sample.

(59) EIFI claimed that two of the selected unrelated importers, pertaining to the same group, would be related to a producer of fasteners in China and they were also licensing, through a related company in the Union, the production of certain fasteners in China. They could not, therefore, be considered as unrelated importers. EIFI further claimed that these companies were also related to Union producers of fasteners. Finally, EIFI noted that since these two importers were related, in any event only one of them should remain in the sample, and the other one replaced by another cooperating importer in the Union. In reply to EIFI’s submission, EFDA submitted that it would only be relevant whether an importer would be related to a producer that is also exporting to the Union in order to exclude them from the sample. EFDA argued that given the number of product types imported by the importers in question and the various segments supplied in the Union, they should remain in the sample.

(60) The importers in question denied that they had any business contacts with the Chinese producer in question, or that they imported the product concerned from this company, or that they were related to any of the other exporting producer of fasteners in China. The investigation did not confirm the claims made by EIFI and the information that EIFI submitted in support of this claim did also not show that the importers in question were indeed related to any of the exporting producers. Furthermore, the fact that the importers were related to each other was not considered a valid argument to exclude them from the sample. The sample included three other unrelated importers selected based on the largest import volume and spread over different Member States. The sample represented 9 % of the total imports of fasteners from China and was therefore considered to be sufficiently representative. Therefore, EIFI’s claims in this regard were rejected.

1.8.3. Sampling of exporting producers

(61) In order to decide whether sampling was necessary and, if so, to select a sample, the Commission asked all known exporting producers in China to provide information specified in the Notice of Initiation. In addition, the Commission asked the Mission of People’s Republic of China to the European Union to identify and/or contact other exporting producers, if any, that could be interested in participating in the investigation.

(62) Ninety-two exporting producers or groups of exporting producers from China provided the requested information and agreed to be included in the sample. Three exporting producers argued that since they produced a specific product type that would not be comparable to other product types exported from China they should be included in the sample for better representativity.

(63) In accordance with Article 17(1) of the basic Regulation, the Commission selected three exporting producers/group of exporting producers, representing the largest volume of exports, which could reasonably be investigated within the time available. Since the exporting producers requesting to be included in the sample because of the specific product type were not amongst those with the highest export volumes, they were not selected in the proposed sample. In accordance with Article 17(2) of the basic Regulation, all known exporting producers concerned and the authorities of the country concerned were informed and invited to comment.

(64) One group of exporting producers not included in the sample requested to be included arguing that (i) it was one of the largest exporters of fasteners; (ii) their inclusion would provide a more accurate picture of the Chinese fasteners industry and (iii) would therefore also give a more accurate picture on how final prices to the Union were determined. On this basis, the exporting producers group argued that import prices based on the sample would not be representative and thus the CIF EU border value to calculate an accurate undercutting and underselling margin based on these prices would not be accurate. The company finally referred to the higher number of Union producers selected in the Union producer sample. Finally, this exporting producer group asserted that adding one more company to the sample would not prevent the Commission from completing the investigation within the statutory time limits.

(65) First, based on the company’s reported export volume the inclusion of the exporting producer group concerned would not significantly increase the representativity of the sample. Second, regarding the claims relating to organisation of the Chinese domestic industry, the export price setting to the Union and the determination of the CIF EU border value, the company did not provide any evidence that its inclusion would significantly increase the representativity of the sample. At the same time, due to its company structure, its inclusion would have added a significant additional burden to the investigation. Third, as the selected sample was considered representative, a reliable CIF EU border value could be established, as well as accurate undercutting and underselling calculations. Finally, the specific number of companies selected in the sample of Union producers is irrelevant for the selection of the sample of exporting producers. The Commission is not obliged to select the same number of companies on both sides and the sampling exercise is limited precisely to allow the Commission to investigate a reasonable number of companies within the deadlines to complete the investigation. The arguments made by this group were therefore rejected.

(66) Another group of exporting producers argued that they should be included in the sample, since the whole group consists of numerous producers and traders in China and in the Union, having considerable manufacturing and supplying capacities affecting its home and the Union market.

(67) However, adding this exporting producer group to the sample would have added a significant additional burden to the investigation, without changing the level of representativity of the proposed sample significantly. Also, there were other exporting producers with larger export volumes than the company group in question that provided sampling information. Given that the sample was selected based on the export volume to the Union as mentioned in recital (63), the inclusion in the sample of this exporting producer group was therefore not warranted. The argument made was therefore rejected.

(68) A third exporting producer claimed that the companies selected in sample were all producer of bolts, and that the proposed sample was therefore not representative of Chinese producers of screws. As a producer of screws, this company requested to be included in the sample. They further claimed that findings should be made separately for the two product types, i.e. screws on the one hand and bolts on the other hand.

(69) These concerns were echoed by CCCME, who argued that the sample was not representative in terms of volume and in terms of product types covered.

(70) As explained in recital (63), the sample was selected based on the largest exported volume to the Union, while the specific product types produced by the selected companies was not a criterion. As set out in recital (110), all types of fasteners were considered one single product for the purpose of this investigation. As set out in recital (398), separate findings for individual product types were therefore not warranted. The exporting producer provided furthermore no evidence in support of its claim that findings should be made separately for bolts on the one hand and screws on the other hand. Finally, there were other cooperating exporting producers with larger export volumes than the exporting producer concerned that provided sampling information and the inclusion of the latter in the sample, therefore, was not warranted. The arguments of this exporting producer were therefore rejected.

(71) Finally, EIFI claimed that one of the selected exporting producers should be removed from the sample, since it would be a trader rather than a manufacturer of fasteners and in any event its principal market would be the United States of America (‘the US’) and not the Union.

(72) All three exporting producers selected in the sample confirmed that the export volume to the Union, as reported and used by the Commission in selecting the sample, were of their own production. The fact that one of the selected exporting producers was exporting fasteners to the US, even if in larger quantities than to the Union, is irrelevant. The arguments of EIFI were therefore rejected.

(73) Based on the above, the Commission confirmed the originally proposed sample.

(74) Following the revision of the Union producers’ sample during the course of the investigation, Celo Suzhou Precision Fasteners Co. Ltd. claimed that the sample of exporting producers should be extended by adding Chinese exporting producers of non-standard fasteners. This company argued that the revision of the Union producers’ sample was to increase its representativity in terms of product mix and that such criterion was not taken into consideration when selecting the sample of exporting producers. The exporting producer in question further noted that its exports of fasteners to the Union would be representative for a specific range of products and that it had already provided a full reply to the questionnaire in the context of its request for individual examination that should be taken into account by the Commission. Such course of action would not significantly delay the investigation.

(75) As outlined in recital (63), the three exporting producers/group selected in the sample represented the largest volume of exports, which could reasonably be investigated within the time available. The fact that the Union producer sample was revised did not have any impact on the sample of exporting producers which would justify its revision. Therefore this claim was rejected.

(76) Following final disclosure, Celo Suzhou Precision Fasteners Co. Ltd. reiterated that the sample of exporting producers was not sufficiently representative in terms of product types and requested that the Commission (i) should have taken into consideration not only the volume of exports, but also product ranges exported; and (ii) that the Commission should have included Celo Suzhou Precision Fasteners Co. Ltd. in the sample as it would be representative for a certain product range.

(77) The party also reiterated its claims as set out in recital (74) and claimed that the Commission’s approach to the selection of the sample of the Union producers, and the need for the different types of fasteners to be represented therein, is in direct contradiction with its argument that, in selecting the sample of exporting producers, specific product types were not a criterion.

(78) The above claims were already addressed in recital (75). Indeed, the sample of Union producers was selected on the basis of the largest producers in terms of volumes and sales, while also taking into account geographical spread (several Member States) and wide product-type mix. The selection of the sample of exporting producers was based on the largest volumes the Commission could investigate. The selection of the sampled Union producers ensured a wide matching with the export transactions of the sampled exporting producers and thus there was no need to also look into the specific product types for such a selection. Since no new information was provided in this respect they were rejected.

1.9. Individual examination and requests for a newcomer treatment

(79) Seven exporting producers of fasteners requested individual examination under Article 17(3) of the basic Regulation by filling in the questionnaire for exporting producers available online (6). Given this high number of requests, granting individual examination would have been unduly burdensome and would have prevented the Commission from completing the present investigation in good time. The Commission therefore did not grant any of the requests submitted.

(80) As mentioned in recitals (48) and (74), following the revision of the Union producers’ sample, one of the exporting producers (Celo Suzhou Precision Fasteners Co. Ltd) claimed that its request for individual examination should be taken into consideration to increase the representativity of the sample of exporting producers. The claim regarding the representativity of the exporting producers’ sample was already addressed in recital (75).

(81) Regarding the request for individual examination, the situation of this exporting producer was not significantly different than the situation of the other exporting producers requesting individual examination that would warranty a different treatment. The Commission therefore concluded that there were no objective reasons justifying to grant the individual examination request of this exporting producer.

(82) Following final disclosure, this exporting producer reiterated its claim that individual examination should be granted to it and asserted that the Commission did not explain the reasons why it was considered discriminatory to accept such request. In support of this argument, the exporting producer highlighted that it produced a specific technical fastener type not comparable to other product types and that its export price would not be made at dumped levels as already established by a previous anti-dumping investigation concerning the same product originating in China where measures were imposed in 2009 (7).

(83) As set out in recital (398), separate findings for individual product types were not warranted. Therefore, examining the request for individual examination of this exporting producer based on the fact that it produced and exported a specific product type, while such criterion was not be taken into consideration with regard to the remaining exporting producers requesting individual examination, would have been discriminatory, in addition to burdensome for the Commission to conclude the investigation on time. The reference to findings of the previous investigation that did not establish dumping with regard to this exporters sales to the Union, is irrelevant, since they were based on information pertaining to a different investigation period. The arguments of this exporting producer were therefore rejected.

(84) One exporting producer in the PRC (Ningbo Londex Industrials Co. or ‘Londex’) requested to be treated as a newcomer, as they only started exporting the product concerned after the investigation period. The Commission noted that it is the established practice that such treatment can only be considered based on a Regulation imposing definitive measures and its relevant provisions. Furthermore, it is recalled that the Commission selected a sample of exporting producers and, as set out in the previous recitals, no requests for the calculation of individual dumping margins were accepted because it was considered unduly burdensome. This is also true for the examination of a newcomer treatment request which would have included a detailed examination of the company structure and its export sales. This request was therefore rejected.

(85) Following final disclosure, Londex reiterated its claim that it should be benefit from a newcomer treatment and be added to the list of cooperating exporting producers. They argued that since they came forward during the investigation and because exports occurred before the end of the investigation, the Commission would not be bound to any specific procedure. The simple assessment whether the company did not export the product concerned during the investigation period albeit after the investigation period would be sufficient which in turn cannot be considered as unduly burdensome. Such approach would also be warranted in the interest of administrative economy. In addition, the Commission already opted for such approach in previous cases. Similarly, Londex argued that cooperating non-sampled exporting producers were not subject to any examination of the company structure or its export sales.

(86) The Commission noted that in previous investigations (8), mentioned by Londex in contrast to what was claimed, the Commission examined whether the conditions set out in Article 11(4) of the basic Regulation were fulfilled. None of the arguments brought forward could reverse the conclusions set out in recital (81) that were therefore rejected.

1.10. Replies to the questionnaires

(87) The Commission sent a questionnaire concerning the existence of significant distortions in China within the meaning of Article 2(6a)(b) of the basic Regulation to the Government of the People’s Republic of China (‘GOC’). The GOC did not provide any reply to the questionnaire.

(88) The Commission made questionnaires available online on the day of the initiation (9) and requested the sampled Union producers, the sampled unrelated importers, and the sampled exporting producers in China to fill in the relevant questionnaires. In addition, the Commission requested EIFI to provide information on macroeconomic injury indicators pertaining to the entire Union industry.

(89) The Commission received questionnaire replies from four sampled Union producers, the complainant EIFI, the five sampled unrelated importers, two users and the three exporting producers/groups of exporting producers.

(90) As mentioned in recital (35), two of the sampled Union producers were excluded from the sample during the course of the investigation and their replies to the questionnaire were therefore disregarded. The two Union producers concerned were replaced by two other Union producers. Both companies provided a questionnaire reply.

(91) The Commission sought all the information deemed necessary for a determination of dumping, resulting injury and Union interest. In view of the outbreak of COVID-19 pandemic and the confinement measures put in place by various Member States as well as by various third countries during most of the investigation, the Commission could not in most of the cases carry out verification visits pursuant to Article 16 of the basic Regulation. In those cases, the Commission instead cross-checked remotely all the information deemed necessary for its determinations in line with its Notice on the consequences of the COVID-19 outbreak on anti-dumping and anti-subsidy investigations (10). The Commission was able to carry out one on-spot verification visit.

(92) The Commission carried out remote crosschecks (‘RCC’) of the following companies/parties: Union producers — Company 15 (Italy) — Company 20 (France) — Company 33 (Germany, SME) — Company 37 (Italy, SME) — Company 61 (Poland, SME) — Company 4 (Croatia) Importers — F. Reyher NCHFG (Germany) — Vipa S.P.A. (Italy) Exporting producers in China — Jiangsu Yongyi Fastener Co., Ltd. (‘Jiangsu’); — Ningbo Jinding Fastening Piece Co., Ltd. (‘Ningbo Jinding’); — Wenzhou Junhao Industry Co., Ltd. (‘Wenzhou’)

(93) The Commission carried out an on spot verification visit at the premises of the following company: Union producers — Company 42 (Germany, SME)

(94) The investigation of dumping and injury covered the period from 1 July 2019 to 30 June 2020 (‘the investigation period’ or ‘IP’). The examination of trends relevant for the assessment of injury covered the period from 1 January 2017 to the end of the investigation period (‘the period considered’).

1.11. Hearings

(95) Interested parties had the opportunity to request a hearing with the Commission and/or the Hearing Officer in trade proceedings in accordance with Articles 6(5) and 6(6) of the basic Regulation. The Commission held hearings with several exporting producers, CCCME and EFDA, as well as the complainant EIFI. One hearing took also place in accordance Article 6(6) of the basic Regulation, between parties with adverse interests, in this case the exporting producer Jiangsu Yongyi Fastener Co., Ltd and EIFI.

1.12. Withdrawal of the United Kingdom from the Union

(96) This case was initiated on 21 December 2020, i.e. during the transition period agreed between the United Kingdom (‘UK’) and the EU in which the UK remained subject to the Union law. This period ended on 31 December 2020. Consequently, as of 1 January 2021, companies and associations from the UK no longer qualified as interested parties in this proceeding.

(97) By a note to the case file of 14 January 2021, the Commission invited UK operators that considered that they still qualified as interested parties to contact it. No company came forward.

1.13. Non imposition of provisional measures

(98) For the reasons set out in recitals (35) and (36), the sample of Union producers had to be revised by substituting two initially sampled Union producers by two other Union producers. The Commission sent a questionnaire to these producers inviting them to fill it in within the time limit set out in Article 6(2) of the basic Regulation. This time frame did, however, not allow the Commission to reach provisional conclusions within the time limit set out in Article 7(1) of the basic Regulation. The Commission decided therefore not to impose provisional measures and to continue the investigation.

(99) On 20 July 2021, in accordance with Article 19a(2) of the basic Regulation, the Commission informed the interested parties of its intention not to impose provisional measures.

(100) The CCCME requested that the Commission issued an ‘information document’ summarising the progress of the investigation and preliminary conclusions based on the information available in the file, so that interested parties would be able to comment thereon.

(101) The basic Regulation does not foresee any disclosure of such information document. In any event, the Commission did not reach any preliminary conclusions within the deadlines set out in Article 7(1) of the basic Regulation and this request was therefore rejected.

2. PRODUCT CONCERNED AND LIKE PRODUCT

2.1. Product concerned

(102) The product concerned is certain fasteners of iron or steel, other than of stainless steel, i.e. wood screws (excluding coach screws), self-tapping screws, other screws and bolts with heads (whether or not with their nuts or washers, but excluding screws and bolts for fixing railway track construction material), and washers originating in the People’s Republic of China, currently classified under CN codes 7318 12 90, 7318 14 91, 7318 14 99, 7318 15 58, 7318 15 68, 7318 15 82, 7318 15 88, ex 7318 15 95 (TARIC codes 7318159519 and 7318159589), ex 7318 21 00 (TARIC codes 7318210031, 7318210039, 7318210095 and 7318210098) and ex 7318 22 00 (TARIC codes 7318220031, 7318220039, 7318220095 and 7318220098). The CN and TARIC codes are given for information only.

(103) Fasteners are made of iron or carbon steel and defined by their physical and technical characteristics and different strength/hardness classes. The broader categories are screws, washers and bolts.

(104) Screws are fastener products with an external threading on the shank. They can either be fixed into wood (wood screws) or metal sheets (self-tapping screws) alone, or combined with a nut and washers to form a bolt. Screws may have a variety of head-shapes (cup, socket, flat, oval, hexagonal, etc.), shank lengths and diameters. The shank may be totally or partially threaded. Screws are generally defined by the type of slot provided into the head to enable the screwing operation (e.g. single slot, cross-recessed slot, etc.).

(105) Washers are fasteners with an internal hole allowing pass through, always used in conjunction with a screw and a nut.

(106) Bolts are fastener parts formed by a screw, a nut and one or several washers.

(107) Fasteners can be standards (‘standard fasteners’) or made on the basis of customer drawings (‘non-standard fasteners’). Within the same national or international standards, fasteners should comply with the same basic physical and technical characteristics including notably strength, tolerance, finishing and coating.

(108) Following final disclosure, EFDA and the CCCME contested the above definition of ‘non-standard’ fasteners. EFDA and the CCCME claimed that the Commission wrongly introduced the notion of ‘non-standard’ fasteners at a late stage of the proceeding and claimed that the definition in the above recital does not correspond to the definition of ‘special fasteners’ provided to interested parties in the questionnaire, more precisely in the instructions to create product control numbers (‘PCN’). Furthermore they reiterated that fasteners produced with requirements that are more stringent than those of an industry standard should be considered as ‘special’ or ‘non-standard’ fasteners (see recital (368)). They also reiterated that certain production certification requirements as mentioned in recital (371) should be considered as classifying all fasteners produced under such production processes automatically as ‘special’ and alleged that the Union industry itself would agree to such approach, in contrast what the Commission concluded in recital (375).

(109) The Commission disagreed with the claim that the notion of ‘non-standard’ fasteners was introduced at a late stage of the proceeding and that it is not in line with the instructions given in the questionnaires. Non-standard fasteners and special fasteners are the same, i.e. fasteners that do not fall exactly within a certain industry norm. This is also in line with the questionnaire that refers to special fasteners as ‘divergent from an internationally recognised standards’. The Commission used these terms interchangeably and did not receive any comments or requests for clarifications in this regard. The Commission recalled that the claim that fasteners produced with requirements that were more stringent than those of an industry standard should be considered as ‘non-standard’ fasteners was already addressed in recital (373). Finally, regarding production certification, the Commission confirms that this as such does not classify a fastener as non-standard, although, in practice it may be that fasteners produced under such requirements are indeed mostly non-standard fasteners. The Union industry does not oppose to this view, as wrongly claimed by EFDA and the CCCME. All above claims in this regard were therefore rejected. Fasteners are used to mechanically join two or more elements in construction, engineering, or other applications. They are used in a wide variety of industrial sectors, as well as by consumers.

(110) Based on their basic physical and technical characteristics and end uses, all fasteners are considered to constitute a single product for the purpose of this proceeding.

2.2. Like product

(111) The investigation showed that the following products have the same basic physical, chemical and technical characteristics as well as the same basic uses: — the product concerned and — the product produced and sold in the Union by the Union industry.

(112) The Commission decided that those products are therefore like products within the meaning of Article 1(4) of the basic Regulation.

2.3. Claims regarding the product scope

2.3.1. Structural timber screws/connectors (or wood lag screws)

(113) Several interested parties claimed that structural timber screws should be excluded from the product scope.

(114) Two exporting producers and two importers (11) argued that structural timber screws had similar characteristics and end uses as coach screws (not covered by the product scope) and that they were merely derivative product types from the latter, with improved mechanical performance and considered as an alternative to coach screws. They claimed that structural timber screws were exclusively used in timber constructions and were not interchangeable with other fasteners, while they were fully interchangeable with traditional coach screws. They were made to customer specific requirements and needed a European Technical Assessment (‘ETA’) certification to be marketed in the Union. Furthermore, they are produced in a specific production process, using different raw materials (i.e. higher quality steel) with specific treatment and machinery and therefore have higher costs and prices.

(115) One of the above exporting producers referring to the anti-dumping measures imposed on imports of certain aluminium road wheels (12) suggested that introducing a system of monitoring would mitigate any risk of circumvention when excluding structural timber screws from the product scope. The same exporting producer claimed that, should the Commission not exclude structural timber screws from the product scope, findings with regard to injury and causation should be made separately for these product types.

(116) All above parties claimed that the Union industry did not produce structural timber screws in sufficient quantities to satisfy the demand on the Union market, and there were also only a limited number of exporting producers in China that supplied structural timber screws.

(117) Likewise, the European Consortium of Anchor Producers (‘ECAP’) claimed that screws for use in timber constructions replacing coach screws, and thus for assembling heavy woodworks, should be excluded from the product scope as they have similar technical, chemical and physical characteristics and similar end-uses than coach screws.

(118) EIFI disagreed with these claims arguing that there would not be any objective criteria to distinguish structural timber screws from other fasteners.

(119) The Commission considered that structural timber screws do not fall under any specific product standard and cannot be distinguished from other wood screws (13) falling within the product scope. The investigation also revealed that at least some of the described special features of structural timber screws can also be found in fasteners falling within the product scope. The Commission also considered that the CE markings and ETA certification merely confirm that timber screws may be non-standard fasteners, but this fact alone does not justify their exclusion from the product scope. Therefore, these claims were rejected.

(120) The claim that findings with regard to injury and causation should be made separately for structural timber screws are addressed in recital (398); and the claim that those product types are not produced and sold by the Union industry in sufficient quantities are addressed in recitals (531) and following.

(121) Following final disclosure, several parties reiterated their claim that structural timber screws should be excluded from the product scope as they would be similar to coach screws and would be clearly distinguishable from other fasteners, in particular wood screws.

(122) Two importers of structural timber screws (one of them was also a producer in the Union) argued that structural timber screws are the result of a product development of coach screws that resulted in a different shape of the head, thus not corresponding to the description in the explanatory note to CN code 7318 11 under which coach screws are imported, and that set out that coach screws differ from wood screws, inter alia, because of a hexagonal head or a square head. These parties argued that the shape of the head should, however, not be considered as a decisive feature when distinguishing structural timber screws from other wood screws. They argued that coach screws are defined as per explanatory note to the CN code 7318 11 as being used ‘for assembling rafters and for similar heavy woodwork’ which would correspond to the use of ‘Screws and threaded rods for use in timber constructions’ in the European Assessment Document (EDA) applying to structural timber connectors (14).

(123) These parties also argued that the standard applicable to coach screws DIN 1052 (previously DIN 571) enables the ad-hoc certification of structural timber screws thus acknowledging the emerge of structural timber screws on the market as an alternative to coach screws. Likewise, the European standard EN 1995 Eurocode 5 governing the design of timber structures allows certified structural timber connectors to be used in timber structures even if not falling under the definition of coach screws.

(124) On the basis of the above, these parties argued that it would be clear that the decisive factor to distinguish structural timber screws from other wood screws would be the end-use, and they should therefore be considered as coach screws.

(125) Finally, as coach screws and structural timber screws pertain to the same product family, the inclusion of structural timber screws in the product scope would be discriminatory.

(126) Two exporting producers claimed that only the shank diameter should be considered as a distinguishing characteristic, rather than the shape of the head, because this feature determines the end-use of the product. They asserted that fasteners falling within the scope of the investigation have a shank diameter that is less than 5mm. These parties also emphasised that the industry specifically recognises structural timber screws as substitutes of coach screws.

(127) All the above parties claimed that the fact that structural timber screws are classified under the CN code for ‘other wood screws (CN code 7318 12), falling within the scope of the investigation would be irrelevant, as CN codes are only provided as an indication when defining the product scope and are not binding in this regard.

(128) Finally, these parties reiterated that there would be insufficient capacity in the Union to supply this product type, that there was no alternative source of supply from other third countries and that it would not be in the Union interest to impose anti-dumping measures on structural timber screws.

(129) None of the above claims devaluated the findings set out in recital (119). In particular, none of the parties disputed the fact that there are no product standards for structural timber screws and all of them acknowledged that timber screws do not correspond to the description of the coach screws classified under CN code 7318 11. The fact that structural timber screws may be certified to fulfil the technical requirements to be used for connections in timber constructions as such was not considered sufficient reason to exclude this product type from the scope of the investigation, as it had overlapping physical and technical characteristics with other products falling within the scope as set out in recital (119). On this basis the claims that structural timber screws should be excluded from the scope of the current investigation were rejected.

(130) The arguments related to insufficient supply in the Union are addressed under the determination of the Union interest in recitals (538) to (540).

2.3.2. Screws and bolts for fixing railway track construction material

(131) One Union producer of screws and bolts used in railways requested that these were included in the product scope of the investigation. The Commission noted however that these products were not covered by the complaint in this case and therefore no evidence of dumping and resulting injury justifying an investigation has been provided by the Union industry. The claim is therefore rejected.

2.3.3. Hot forged fasteners

(132) One of the sampled exporting producer claimed that fasteners manufactured by hot forged process (‘hot forged fasteners’) should be excluded from the product scope arguing that they had different production processes and cost structures resulting in different physical characteristics and end-uses than fasteners manufactured by cold forged process (‘cold forged fasteners’), predominantly used by the Union industry. This exporting producer argued that hot forged fasteners are generally of a larger size than cold forged fasteners and are mainly used in the railway industry and/or machine building. Fasteners resulting from this process would not be produced at all, or only in limited quantities by the Union industry. In addition, it would economically not be viable to switch to hot forged processes, the latter being more labour and energy intensive and having a higher consumption ratio of steel. They requested an adversarial meeting with the presence of EIFI in accordance with Article 6(6) of the basic Regulation which took place on 27 October 2021.

(133) EIFI submitted that the product scope should not be defined based on different production processes. They pointed to the EU customs nomenclature that does not distinguish between products based on different production processes, but on physical, technical and chemical characteristics. EIFI asserted that the Union industry has substantial hot forging production capacity and that there was a significant overlap of dimensions of fasteners that can be produced with both technologies.

(134) The Commission agreed that the fact that a product can be produced by different production processes is in itself not relevant for the definition of the product scope of an investigation. Consequently, all product types falling within the definition of the product concerned in recital (102) are covered by this investigation, whether produced by hot forging processes or cold forging processes. The investigation established that the Union industry had substantial production capacity and spare capacities to produce fasteners under the hot forged process. The investigation also revealed that there were overlapping applications between fasteners produced in both processes. The request for exclusion of hot forged fasteners was therefore rejected.

(135) Following final disclosure, the exporting producer reiterated its requests to exclude hot forged fasteners from the scope of the investigation. In particular, it contested the reliability of EIFI’s data provided and claimed that the Commission accepted these data without verifying them and without responding to the legal and factual claims provided by the exporting producers in this regard. This exporting producer claimed that there were no legal grounds that hot forged fasteners were kept in the product scope.

(136) The arguments provided by the exporting producer in this regard were (i) that CN-codes are only indicative when determining the product scope in an anti-dumping investigation and that the investigation needs therefore to establish whether a certain product falling within the same CN-code has the same technical characteristics and end uses and therefore causes injury to the Union industry; (ii) that imports of hot forged fasteners would not cause any injury to the Union industry as there is no or only little production of hot forged fasteners in the Union; and production would not increase as it would economically not be viable to switch to hot forged fasteners production; in this regard it is also irrelevant that there is an overlap of products that are produced under the hot forged process on the one hand and the cold forged process on the other hand; and (iii) that CN code 7318 11 00 (‘coach screws’) and CN code 7318 15 20 (‘Other screws and bolts, whether or not with their nuts or washers’; ‘For fixing railway track construction material’) recognises the difference between of hot forged fasteners in comparison to cold forged fasteners and therefore CN codes are indeed taking into consideration different production processes.

(137) To further substantiate its claims the exporting producer identified several product types exported by it that could only be produced under hot forged processes and were there was thus no overlap with cold forged processes. It reiterated that those had different end-uses than fasteners produced under the cold forged processes and were sold in different distribution channels.

(138) Regarding the claims that the investigation has to show that imported products have similar physical and technical characteristics and basic end-used and caused injury to the Union industry, this is a matter of defining the like product rather than the product concerned.

(139) Concerning the arguments provided by the exporting producer and summarised in recital (136) the Commission reminds as set out in recital (134) that a product can be produced under various production processes which are therefore as such no determining factor when defining the product scope. The fact that there are different CN codes for coach screws and wood screws were not considered as a prove that differences in production processes were taken into consideration in the CN nomenclature; to the contrary, the production process is not mentioned explicitly in the CN codes, while the explanatory notes to CN code 7318 11 refers explicitly to differences in technical and physical characteristics.

(140) Regarding the argument summarised in recital (137), it is recalled that as set out in recital (134) that the Union industry had substantial production capacity and spare capacities to produce all types of fasteners, including hot forged fasteners. Different distribution channels as such were not considered relevant, as long as the fastener falls within the product description. These arguments were therefore rejected.

(141) The same exporting producer, requested a hearing with the Hearing officer that was held on 17 November 2021 where it reiterated its claim that hot forged fasteners should be excluded from the product scope and requested explanations as to why coach screws had been excluded from the production scope. The interested party considered that it would be discriminatory that no explanations had to be provided by the complainant in this regard. The Commission recalled that in accordance with WTO jurisprudence, the investigating authority has discretion in defining the product under investigation and that complainants are free to define the product scope without a need for any particular justification. Therefore, coach screws never having been included in the product scope were also not ‘excluded’ therefrom. Once the investigation had been initiated, however, interested parties needed to provide a justification if they claimed that certain product types falling within the scope of the investigation should be “excluded” (properly speaking) from the imposition of measures. Since the two situations are different, there was no discrimination. This claim was therefore rejected.

2.3.4. Hardware kits

(142) One exporting producer claimed that hardware kits should be excluded from the product scope, as they contained both the product concerned and other products outside the scope of the investigation. Hardware kits are sold in different packages than fasteners (such as small paper boxes, boxes with PVC windows, etc.). The packages represent, together with the products not included in the scope a large part of their costs and sales price, while costs and prices of the product concerned included in the hardware kits are not distinguishable from the rest. In addition, hardware kits are destined mainly to household uses, while fasteners produced by the Union industry are destined to industrial uses. Hardware kits are distributed via different sales channels, i.e. retailers, while fasteners destined to industrial use are sold via distributers. Finally, this exporting producer claimed that the complainant Union producers did not produce and sell hardware kits.

(143) The Commission notes that any imports of such kits that, following tariff classification rules, are classified under the product definition in recital (102), provided they keep the character of this product, are covered by the investigation and potential anti-dumping measures. In addition, the investigation revealed that Union industry produces and sells fasteners for the do-it-yourself (‘DIY’) sector, which is mainly sold in form of hardware kits. Several Union producers have their own automatic packaging lines, while others outsource the packaging to unrelated service providers in the Union. There is therefore no ground for exclusion of hardware kits.

2.3.5. Anchors and structural connections for concrete, masonry, wood and steel

(144) ECAP claimed that certain products should not fall within the scope of the investigation, as they have different basic end-used and undergo different CE marking processes. These products are iron or steel ‘anchors’ and ‘structural connections for concrete, masonry, wood and steel’ and in particular (i) roofing or self-drilling screws with accessories, (ii) structural connections for wood and (iii) metal anchors, concrete screw anchors and nylon anchors or plugs. ECAP referred to Commission Implementing Regulation (EU) No 602/2011 (15). They argued that under this Regulation certain products ‘comprising a bolt with a washer, an expandable anchor sleeve and a nut, all made of stainless steel’ are to be classified under CN code 7318 19 00. By analogy, iron or steel anchors should also be classified under the same CN code, claiming that the logic and principle of Regulation (EU) No 602/2011 should apply to construction anchors of all materials and forms. Therefore, ECAP claimed that iron and steel anchors should not fall within the product scope.

(145) ECAP referred to several European Assessment Documents (‘EAD’) for the above mentioned products. EADs are harmonised technical specifications for construction products developed by the European Organisation for Technical Assessment (‘EOTA’) for cases where a product is not fully covered by harmonised European standards. ECAP did not provide any further details, information or evidence to what extend these documents would show that the products described therein would not fall within the definition of the current product scope. However, the fact that certain products fall within a specific EAD does not mean that they would not be covered by the product definition of the current investigation.

(146) Implementing Regulation (EU) No 602/2011 relates to products of stainless steel, which are not covered by this investigation. In any event, this Regulation only specifies that a certain product comprising a bolt with a washer, an expandable anchor sleeve and a nut cannot be considered as a ‘composite good’ for customs purposes as the components together constitute a single product, i.e. an expansion bolt. In any event, any imports of bolts that, following tariff classification rules, are classified under the product definition in recital (102) are covered by the investigation and potential anti-dumping measures. These claims were therefore rejected.

(147) The Commission highlights that according to Section 2 of the Notice of Initiation only fasteners of iron and steel (other than stainless steel) are covered by the investigation. Thus, products made of stainless steel, plastic or nylon do not fall within the product scope of this investigation.

(148) One Union producer of anchors and its related exporting producer in China claimed, similarly to ECAP, that concrete anchor screws should be excluded from the product scope of the investigation. They argued that concrete anchor screws are specific, highly specialised products having the same purpose than metal anchors, which is to fix structural elements to concrete in the construction sector. In support of this argument, the interested parties highlighted that the product was developed in accordance with the European Technical Approval Guideline (‘ETAG’) for ‘Metal Anchors for Use in Concrete’ (ETAG001) of EOTA with the objective of (partially) substituting metal anchors. These parties emphasised that anchors were not specifically mentioned in the complaint and that anchor producers were not represented by the complainant EIFI. Like ECAP, they highlighted that anchors were to be classified under CN code 7318 19 00 not covered by the notice of initiation.

(149) Following final disclosure, this company reiterated its claim that concrete anchor screws should be excluded from the product scope without, however providing any new arguments or information in this regard. This claim was therefore rejected.

(150) These parties further argued that concrete anchor screws are, due to their specificities, not interchangeable with other fasteners, such as screws, bolts and washers, while they are in competition and interchangeable with wedge anchors or sleeve anchors.

(151) For the same reasons set out above in recital (146), the claim concerning specific certificates was dismissed. Regarding the interchangeability with other product types, the Commission has wide discretion to establish the product scope of an investigation (the product concerned). There is no requirement in the basic Regulation that the product concerned encompasses only product types which are interchangeable and in competition. These elements refer to the definition of the like product.

(152) Finally, the Union producer of anchors mentioned in recital (148) argued that its related exporting producer in China is the only one with an official EU certification (European Technical Assessment or ‘ETA’) issued by EOTA for concrete anchor screws and therefore the only one exporting this product to the Union. The impact of the exclusion of this product would therefore be limited. They also highlighted that in any event, there were no exports of concrete anchor screws during the IP, thus it could not have caused any injury to the Union industry.

(153) Since this party did not provide any evidence in support of its statements, the Commission decided to reject this claim without analysing it in substance.

(154) Following final disclosure, Simpson Strongtie, an international group manufacturing concrete screw anchors in China and distributing them via related companies in the Union commented that concrete screw anchors should be excluded from the product scope. They justified their late intervention in the proceeding having given for granted that this product type was already excluded. They provided technical characteristics of their concrete screw anchors produced in China and claimed that these do not compete with the other product concerned or the like product.

(155) The late submission of this company could not be taken into consideration. The product scope was defined in the Notice of initiation including the CN codes under which fasteners are imported. The Commission did not indicate that concrete anchor screws would be excluded from the product scope; therefore the interested parties had no reason to believe that they were not included in the scope. For the reasons set out in the preceding recital, the interested parties’ claims to exclude concrete anchor screws were rejected.

2.3.6. Confirmat screws (or self-drive dowels)

(156) One exporting producer requested that confirmat screws (or self-drive dowels) were excluded from the product scope. This exporting producer claimed that due to their specific end-uses, that is, connecting accessories for the assembly of desks, cabinets, tables or shelves (processed wood materials) in the furniture industry, the physical and technical characteristics of confirmat screws were unique and differed significantly from those of other fasteners. This exporting producer also claimed that should the Commission decide not to exclude confirmat screws from the product scope, findings with regard to injury and causation should be made separately for these product types.

(157) The investigation established that confirmat screws had similar basic physical and technical characteristics and end uses than other fasteners types included in the product scope. Therefore, there is no reason for this product type to be excluded from the investigation. This claim was therefore rejected.

(158) The claim that injury and causation should be assessed separately for this product types is addressed in recital (398).

2.3.7. Pole screws

(159) One user of pole screws in the Union claimed that the latter should be excluded from the product scope as they were only used in one specific application, i.e. in industrial battery intercell connectors, and were not produced by any of the Union producers. This company argued that pole screws were special screws and had not only a steel part but also a plastic head and thread-locker. The investigation revealed, however, pole screws had similar basic physical and technical characteristics and end uses than other fasteners types included in the product scope. Therefore, there is no reason for this product type to be excluded from the investigation this claim was therefore rejected.

(160) Following final disclosure, this user reiterated that pole screws are exclusively used as electrical connectors of battery cells, and serve as such in industrial batteries for isolation and protection against acid and acid vapour. Pole screws are therefore not interchangeable with common fasteners. In support of their argument they provided a communication of the German customs authorities dated 7 March 2016 that pole screws do not fall within the scope of Regulation (EC) No 91/2009 imposing anti-dumping duty on imports of certain iron or steel fasteners originating in the People’s Republic of China and Council Implementing Regulation (EU) No 924/2012 (16). Since the current investigation covers the same product scope, the company argued that pole screws should also not be considered as falling within the scope of the current investigation.

(161) The communication submitted by the user in question did not include a reasoned decision of the customs authorities, including factual and legal grounds that motivated such decision and whether it was based on a binding tariff information. The Commission was also not able to verify the authenticity of the document provided. In addition, it also pre-dated the current investigation and could therefore not be considered as having an impact on the product scope. These arguments were therefore rejected.

2.3.8. Non-standard fasteners used in the automotive industry

(162) The CCCME claimed that non-standard fasteners used in the automotive industry should be excluded from the scope of the investigation, arguing they would not be exported by the Chinese exporting producers, or only in very limited quantities. Alternatively, the analysis of injury and causality should be carried out separately per market segment, i.e. standard and non-standard fasteners.

(163) Non-standard fasteners used in the automotive industry fall within the product definition in recital (102) and are therefore covered by this investigation. The investigation has shown that exports from China included exports of non-standard fasteners intended for the automotive industry and that there were several producers of automotive fasteners in China. The claim to exclude these product types from the scope of the investigation was therefore rejected.

(164) Following final disclosure, the CCCME claimed that the Commission did not undertake any specific analysis of the unique characteristics of automotive fasteners that would justify the exclusion of these products from the scope of the investigation. They maintained that automotive fasteners are entirely distinct from other fasteners in terms of industry standards and requirements.

(165) As for its claim already prior to final disclosure, the CCCME did not provide any further explanations on the technical and physical characteristics it was referring to and that would distinguishing those types of fasteners from other types. The mere statement that those fasteners were not interchangeable with other fasteners included in the product scope was considered insufficient as to justify an exclusion. It is noted that in the automotive industry fasteners of several types are used and not just one single type. In any event, as already set out in recital (151), regarding the interchangeability with other product types, the Commission has wide discretion to establish the product scope of an investigation. There is no requirement in the basic Regulation that the product concerned encompasses only product types which are interchangeable and in competition. The claims of the CCCME in this regard were therefore rejected.

(166) The claim that the injury and causality analysis should be carried out based on different market segments is addressed in recitals (394) and (398).

3. DUMPING

3.1. Procedure for the determination of the normal value under Article 2(6a) of the basic Regulation

(167) The evidence available at the initiation of the investigation pointed to the existence of significant distortions in China within the meaning of Article 2(6a)(b) of the basic Regulation. The Commission therefore considered it appropriate to initiate the investigation having regard to Article 2(6a) of the basic Regulation.

(168) In order to collect the necessary data for a possible application of Article 2(6a) of the basic Regulation the Commission invited all exporting producers in the country concerned to provide information regarding the inputs used for producing fasteners. Ninety-two exporting producers submitted the relevant information.

(169) As mentioned above in recital (87), the Commission also requested, the GOC to respond to a questionnaire concerning the alleged existence of distortions in the PRC. However, the GOC did not provide a reply to the questionnaire as requested.

(170) In addition, the Commission invited all interested parties to make their views known, submit information and provide supporting evidence regarding the application of Article 2(6a) of the basic Regulation within 37 days of the date of publication of the Notice of Initiation in the Official Journal of the European Union.

(171) In point 5.3.2 of the Notice of Initiation the Commission informed interested parties that based on the information available at that stage possible appropriate representative countries pursuant to Article 2(6a)(a) of the basic Regulation could be Brazil and Turkey if the conditions of application of that provision would be confirmed. The Commission also stated that it would examine other possible appropriate representative countries in accordance with the criteria set out in 2(6a)(a) first indent of the basic Regulation.

(172) On 5 February 2021, the Commission issued a First Note on the sources for the determination of the normal value (‘the Note of 5 February’ or ‘First Note’) by which it informed interested parties on the relevant sources it intended to use for the determination of the normal value. In that note, the Commission provided a list of all factors of production such as raw materials, labour and energy used in the production of fasteners. In addition, the Commission identified Brazil, Russia, Thailand and Turkey as possible appropriate representative countries. The Commission gave all interested parties opportunity to comment. The Commission received comments from the complainant EIFI, two sampled exporting producers, the CCCME and EFDA.

(173) On 4 May 2021, after having analysed the comments received, the Commission issued the Second note on the sources for the determination of the normal value (‘the Note of 4 May’ or ‘Second Note’). In that note the Commission established a provisional list of factors of production and informed interested parties of its intention to use Thailand as the representative country under Article 2(6a)(a), first indent of the basic Regulation. It also informed interested parties that it would establish selling, general and administrative costs (‘SG&A’) and profits based on readily available financial data sourced from Dun & Bradstreet database (17) (‘D&B’). The Commission invited interested parties to comment. Comments were received from the complainant, one sampled exporting producer, the CCCME and EFDA.

(174) After having analysed the comments and information received on the Second Note, the Commission concluded that Thailand was an appropriate choice as representative country from which undistorted prices and costs would be sourced for the determination of the normal value. The underlying reasons for that choice are further described in detail in recitals (220) and following.

3.2. Application of Article 18 of the basic Regulation

(175) As already mentioned in recitals (87) and (169), the GOC did not provide any reply to the questionnaire concerning the existence of distortions (18). The Commission informed the GOC by Note Verbale on 2 June 2021 that it intended therefore to make use of the provisions of Article 18 of the basic Regulation and use facts available with regard to the information covered by the questionnaire. The Commission invited the GOC to submit comments on the application of Article 18 of the basic Regulation. No comments were received.

(176) As mentioned in recital (61), upon initiation, in order to decide whether sampling was necessary and, if so, to select a sample, the Commission asked all known exporting producers in China to provide the information specified in the Notice of Initiation. In addition, the Commission asked the Mission of the People’s Republic of China to the European Union to identify and/or contact other exporting producers, if any, that could be interested in participating in the investigation. Ninety-two exporting producers or groups of exporting producers came forward representing 51 % of the total exports of fasteners from the PRC to the Union during the IP as estimated by the complainant based on Eurostat statistics. The Commission considered that this level of cooperation was low.

(177) The Commission informed the Mission of the People’s Republic of China to the European Union by Note Verbale accordingly, highlighting that due to this low cooperation, it intended to make use of the provisions of Article 18 of the basic Regulation with regard to the country-wide margin (i.e. the residual duty). The Commission invited the Mission of the People’s Republic of China to the European Union to submit its comment on the application of Article 18 of the basic Regulation.

(178) EFDA claimed that a level of cooperation should not be deemed to be low because: (a) the Chinese fasteners industry consists predominantly of small companies and SMEs, which faced difficulties, due to their limited resources, to comply with all the requirements and follow the various procedural steps that are necessary for them to participate in the investigation; (b) the Chinese exporting producers of fasteners, in most cases have only few or no employees who are proficient enough in English to fill out the complex forms that are requested in anti-dumping investigations; (c) the Chinese exporting producers of fasteners could not understand how an anti-dumping investigation could be initiated, while several Union producers have sourced fasteners from Chinese suppliers and even continue to do so after the investigation period; (d) the Commission is putting significant efforts in encouraging and facilitating the participation of SMEs in the Union in anti-dumping investigations, while small Chinese exporting producers are treated in the exact same way as large exporting producers, which creates considerable inequality between SMEs in the Union and in third countries in terms of their ability to participate in trade defence investigations and enforce their rights of defence. Therefore, the Commission should remedy this situation in considering the Chinese exporters’ level of cooperation as sufficiently high.

(179) The Commission noted that, at the start of the in