Notice of reopening the anti-dumping investigation concerning imports of optical fibre cables originating in the People’s Republic of China

(2022/C 467/06)

The European Commission has received a request pursuant to Article 12 of 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 (‘the basic Regulation’) (1). That request is to investigate whether the anti-dumping measures imposed by Commission Implementing Regulation (EU) 2021/2011 (2) on imports of optical fibre cables originating in the People’s Republic of China (‘the country concerned’), have had an effect on export prices, resale prices or subsequent selling prices in the Union. Such investigations are referred to as ‘absorption reinvestigations’.

1. Request for an absorption reinvestigation

The request was lodged on 28 October 2022 by Europacable, (‘the applicant’) on behalf of the Union industry of optical fibre cables in the sense of Article 5(4) of the basic Regulation.

An open version of the request and the analysis of the degree of support by Union producers for the request are available in the file for inspection by interested parties. Section 5.4 of this Notice provides information about access to the file for interested parties.

2. Product concerned

The product concerned is single mode optical fibre cables, made up of one or more individually sheathed fibres, with protective casing, whether or not containing electric conductors and originating in the People’s Republic of China (‘the product concerned’).

The product concerned does not include:

(i) cables in which all the optical fibres are individually fitted with operational connectors at one or both extremities; and

(ii) cables for submarine use. Cables for submarine use are plastic insulated optical fibre cables, containing a copper or aluminium conductor, in which fibres are contained in metal module(s).

The product concerned is currently falling under CN code ex 8544 70 00 (TARIC code 8544700010). The CN and TARIC codes are given for information only.

3. Existing measures

The measures currently in force are a definitive anti-dumping duty imposed by Commission Implementing Regulation (EU) 2021/2011, as amended by Commission Implementing Regulation (EU) 2022/72 (3) as corrected by Commission Implementing Regulation (EU) 2022/469 (4).

4. Grounds for an absorption reinvestigation

The applicant has submitted sufficient evidence showing that after the original investigation period, Chinese export prices have decreased. The decrease in Chinese export prices has seemingly impeded the intended remedial effects of the measures in force. The evidence contained in the request indicates that the decrease in export prices cannot be explained by a decrease of the price of the major raw material or a change in the product mix.

5. Procedure

Having determined, after informing the Member States, that the request has been lodged by or on behalf of the Union industry, and that there is sufficient evidence of absorption, the Commission hereby reopens the investigation pursuant to Article 12 of the basic Regulation.

The reinvestigation will determine whether after the original investigation period and prior to or following the imposition of measures, export prices have decreased or that there has been no movement, or insufficient movement, in the resale prices or subsequent selling prices of the imported product in the Union.

If the conclusions are affirmative, then, in order to remove the injury previously established, export prices should be reassessed according to Article 2 of the basic Regulation and dumping margins shall be recalculated to take account of the reassessed export prices. Alleged changes in normal value will only be taken into account where complete information on revised normal values, duly substantiated by evidence, is made available to the Commission within the time limits set out in this Notice of initiation. Pursuant to Article 12(3) of the basic Regulation, the amount of the anti-dumping duty imposed following this investigation shall not exceed twice the amount of the duty imposed initially.

The Commission also draws the attention of the parties to the published Notice (5) on the consequences of the COVID-19 outbreak on anti-dumping and anti-subsidy investigations that may be applicable to this proceeding.

5.1. Comments on the request and the initiation of the investigation

All interested parties wishing to comment on the request or any aspects regarding the initiation of the investigation (including the degree of support for the request) must do so within 37 days of the date of publication of this Notice in the Official Journal of the European Union.

Any request for a hearing with regard to the initiation of the investigation must be submitted within 15 days of the date of publication of this Notice.

5.2. Reinvestigating producers (6) in the country concerned

Procedure for selecting producers to be reinvestigated in the country concerned – Sampling

In view of the potentially large number of producers in the country concerned involved in this reinvestigation and in order to complete it within the statutory time limits, the Commission may limit the producers to be investigated to a reasonable number by selecting a sample (this process is also referred to as ‘sampling’). Sampling will be carried out in accordance with Article 17 of the basic Regulation.

In order to enable the Commission to decide whether sampling is necessary, and if so, to select a sample, all producers, or representatives acting on their behalf, including the ones who did not cooperate in the investigation leading to the measures subject to this reinvestigation, are hereby requested to provide the Commission with information on their company(ies) within 7 days of the date of publication of this Notice (7). This information must be provided via TRON.tdi at the following address: https://tron.trade.ec.europa.eu/tron/tdi/form/R785_SAMPLING_FORM_FOR_EXPORTING_PRODUCER. Tron access information can be found in section 5.4 and 5.7 below.

In order to obtain the information it deems necessary for the selection of the sample of producers in the country concerned, the Commission will also contact the authorities of the country concerned and may contact any known associations of producers in the country concerned.

If a sample is necessary, the producers will be selected based on the largest representative volume of production, sales or exports which can reasonably be investigated within the time available. All known producers in the country concerned, the authorities of the country concerned and associations of producers in the country concerned will be notified by the Commission, via the authorities of the country concerned if appropriate, of the companies selected to be in the sample.

Once the Commission has received the necessary information to select a sample of producers, it will inform the parties concerned of its decision whether they are included in the sample. The Commission will add a note to the file for inspection by interested parties reflecting the sample selection. Any comment on the sample selection must be received within 3 days of the date of notification of the sample decision.

The sampled producers will have to submit a completed questionnaire within 30 days from the date of notification of the decision of their inclusion in the sample, unless otherwise specified.

A copy of the questionnaire for producers in the country concerned is available in the file for inspection by interested parties and on DG Trade’s website https://tron.trade.ec.europa.eu/investigations/case-view?caseId=2642.

Parties which intend to request a revision of the normal value and were selected to be in the sample will have to provide, within the same deadline, complete information on revised normal values, pursuant to Article 12(5) of the basic Regulation. The normal value established in the original investigation was for all exporting producers based on a constructed normal value on the basis of costs of production and sale reflecting undistorted prices or benchmarks in Argentina pursuant to Article 2(6a)(a) of the basic Regulation.

Without prejudice to the possible application of Article 18 of the basic Regulation, companies that have agreed to their possible inclusion in the sample but are not selected to be in the sample will be considered to be cooperating.

5.3. Investigating unrelated importers (8) (9)

Unrelated importers of the product concerned from the country concerned to the Union, including those that did not cooperate in the investigation leading to the measures in force, are invited to participate in this investigation.

In view of the potentially large number of unrelated importers involved in this reinvestigation and in order to complete the investigation within the statutory time limits, the Commission may limit to a reasonable number the unrelated importers that will be investigated by selecting a sample (this process is also referred to as ‘sampling’). The sampling will be carried out in accordance with Article 17 of the basic Regulation.

In order to enable the Commission to decide whether sampling is necessary and, if so, to select a sample, all unrelated importers, or representatives acting on their behalf, including the ones who did not cooperate in the investigation leading to the measures subject to the present reinvestigation, are hereby requested to make themselves known to the Commission. These parties must do so within 7 days of the date of publication of this Notice by providing the Commission with the information on their company(ies) requested in the Annex to this Notice.

In order to obtain information it deems necessary for the selection of the sample of unrelated importers, the Commission may also contact any known associations of importers.

If a sample is necessary, the importers may be selected based on the largest representative volume of sales of the product concerned from the country concerned in the Union that can reasonably be investigated within the time available. All known unrelated importers and associations of importers will be notified by the Commission of the companies selected to be in the sample.

The Commission will also add a note to the file for inspection by interested parties reflecting the sample selection. Any comment on the sample selection must be received within 3 days of the date of notification of the sample decision.

In order to obtain the information it deems necessary for its investigation, the Commission will make available questionnaires to the sampled unrelated importers. Those parties must submit a completed questionnaire within 30 days from the date of the notification of the sample selection, unless otherwise specified.

A copy of the questionnaire for unrelated importers is available in the file for inspection by interested parties and on DG Trade’s website https://tron.trade.ec.europa.eu/investigations/case-view?caseId=2642.

5.4. Interested parties

In order to participate in the investigation, interested parties, such as producers in the country concerned, Union producers, importers and their representative associations, users and their representative associations, trade unions and representative consumer organisations first have to demonstrate that there is an objective link between their activities and the product concerned.

Producers in the country concerned, importers and representative associations who made information available in accordance to the procedures described in sections 5.2 and 5.3 will be considered as interested parties if there is an objective link between their activities and the product concerned.

Other parties will only be able to participate in the investigation as interested party from the moment they make themselves known, and provided that there is an objective link between their activities and the product concerned. Being considered as an interested party is without prejudice to the application of Article 18 of the basic Regulation.

Access to the file available for inspection for interested parties is made via TRON.tdi at the following address: https://tron.trade.ec.europa.eu/tron/TDI. Please follow the instructions on that page to get access (10).

5.5. Other written submissions

Subject to the provisions of this Notice, all interested parties are hereby invited to make their views known, submit information and provide supporting evidence. Unless otherwise specified, this information and supporting evidence must reach the Commission within 37 days of the date of publication of this Notice.

5.6. Possibility to be heard by the Commission investigation services

All interested parties may request to be heard by the Commission investigation services. Any request to be heard must be made in writing and must specify the reasons for the request as well as a summary of what the interested party wishes to discuss during the hearing. The hearing will be limited to the issues set out by the interested parties in writing beforehand.

In principle, hearings will not be used to present factual information which is not yet on file. Nevertheless, in the interest of good administration and to enable Commission services to progress with the investigation, interested parties may be directed to provide new factual information after a hearing.

5.7. Instructions for making written submissions and sending completed questionnaires and correspondence

Information submitted to the Commission for the purpose of trade defence investigations shall be free from copyrights. Interested parties, before submitting to the Commission information and/or data which is subject to third party copyrights, must request specific permission to the copyright holder explicitly allowing the Commission a) to use the information and data for the purpose of this trade defence proceeding and b) to provide the information and/or data to interested parties to this investigation in a form that allows them to exercise their rights of defence.

All written submissions, including the information requested in this Notice, completed questionnaires and correspondence provided by interested parties for which confidential treatment is requested shall be labelled ‘Sensitive’ (11). Parties submitting information in the course of this investigation are invited to reason their request for confidential treatment.

Parties providing ‘Sensitive’ information are required to furnish non-confidential summaries of it pursuant to Article 19(2) of the basic Regulation, which will be labelled ‘For inspection by interested parties’. These summaries must be sufficiently detailed to permit a reasonable understanding of the substance of the information submitted in confidence. If a party providing confidential information fails to show good cause for a confidential treatment request or does not furnish a non-confidential summary of it in the requested format and quality, the Commission may disregard such information unless it can be satisfactorily demonstrated from appropriate sources that the information is correct.

Interested parties are invited to make all submissions and requests via TRON.tdi (https://tron.trade.ec.europa.eu/tron/TDI) including requests to be registered as interested parties, scanned powers of attorney and certification sheets. By using TRON.tdi or email, interested parties express their agreement with the rules applicable to electronic submissions contained in the document ‘CORRESPONDENCE WITH THE EUROPEAN COMMISSION IN TRADE DEFENCE CASES’ published on the website of the Directorate-General for Trade: https://europa.eu/!7tHpY3. The interested parties must indicate their name, address, telephone and a valid email address and they should ensure that the provided email address is a functioning official business email which is checked on a daily basis. Once contact details are provided, the Commission will communicate with interested parties by TRON.tdi or email only, unless they explicitly request to receive all documents from the Commission by another means of communication or unless the nature of the document to be sent requires the use of a registered mail. For further rules and information concerning correspondence with the Commission including principles that apply to submissions via TRON.tdi and by email, interested parties should consult the communication instructions with interested parties referred to above.

Commission address for correspondence:

European Commission Directorate-General for Trade Directorate G Office: CHAR 04/039 1049 Bruxelles/Brussel BELGIQUE/BELGIË

TRON.tdi: https://tron.trade.ec.europa.eu/tron/TDI

Email: TRADE-R785-OFC-ABSORPTION@ec.europa.eu

6. Schedule of the investigation

The investigation shall normally be concluded within 6 months and in any event no later than 9 months from the date of the publication of this Notice, pursuant to Article 12(4) of the basic Regulation.

7. Submission of information

As a rule, interested parties may only submit information in the timeframes specified in section 5 of this Notice.

In order to complete the investigation within the mandatory deadlines, the Commission will not accept submissions from interested parties after the deadline to provide comments on the final disclosure or, if applicable, after the deadline to provide comments on the additional final disclosure.

8. Possibility to comment on other parties’ submissions

In order to guarantee the rights of defence, interested parties should have the possibility to comment on information submitted by other interested parties. When doing so, interested parties may only address issues raised in the other interested parties’ submissions and may not raise new issues.

Comments on the information provided by other interested parties in reaction to the disclosure of the definitive findings should be submitted within 5 days from the deadline to comment on the definitive findings, unless otherwise specified. If there is an additional final disclosure, comments on the information provided by other interested parties in reaction to this further disclosure should be made within 1 day from the deadline to comment on this further disclosure, unless otherwise specified.

The outlined timeframe is without prejudice to the Commission’s right to request additional information from interested parties in duly justified cases.

9. Extension to time limits specified in this Notice

Any extension to the time limits provided for in this Notice should only be requested in exceptional circumstances and will only be granted if duly justified. In any event, any extensions to the deadline to reply to questionnaires will be limited normally to 3 days, and as a rule will not exceed 7 days. Regarding time limits for the submission of other information specified in the Notice of initiation, extensions will be limited to 3 days unless exceptional circumstances are demonstrated.

10. Non-cooperation

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

Where it is found that any interested party has supplied false or misleading information, the information may be disregarded and use may be made of facts available.

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

Failure to give a computerised response shall not be deemed to constitute non-cooperation, provided that the interested party shows that presenting the response as requested would result in an unreasonable extra burden or unreasonable additional cost. The interested party should immediately contact the Commission.

11. Hearing Officer

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

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

Any request must be submitted in good time and expeditiously so as not to jeopardise the orderly conduct of proceedings. To that effect, interested parties should request the intervention of the Hearing Officer at the earliest possible time following the occurrence of the event justifying such intervention. Where hearing requests are submitted outside the relevant timeframes, the Hearing Officer will also examine the reasons for such late requests, the nature of the issues raised and the impact of those issues on the rights of defence, having due regard to the interests of good administration and the timely completion of the investigation.

For further information and contact details interested parties may consult the Hearing Officer’s web pages on DG Trade’s website: https://policy.trade.ec.europa.eu/contacts/hearing-officer_en.

12. Processing of personal data

Any personal data collected in this investigation will be treated in accordance with Regulation (EU) 2018/1725 of the European Parliament and of the Council (12).

A data protection notice that informs all individuals of the processing of personal data in the framework of Commission’s trade defence activities is available on DG Trade’s website: https://policy.trade.ec.europa.eu/enforcement-and-protection/trade-defence_en.

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

(2) Commission Implementing Regulation (EU) 2021/2011 of 17 November 2021 imposing a definitive anti-dumping duty on imports of optical fibre cables originating in the People’s Republic of China (OJ L 410, 18.11.2021, p. 51).

(3) Commission Implementing Regulation (EU) 2022/72 of 18 January 2022 imposing definitive countervailing duties on imports of optical fibre cables originating in the People’s Republic of China and amending Implementing Regulation (EU) 2021/2011 imposing a definitive anti-dumping duty on imports of optical fibre cables originating in the People’s Republic of China (OJ L 12, 19.1.2022, p. 34).

(4) Commission Implementing Regulation (EU) 2022/469 of 23 March 2022 correcting Implementing Regulation (EU) 2022/72 imposing definitive countervailing duties on imports of optical fibre cables originating in the People’s Republic of China and amending Implementing Regulation (EU) 2021/2011 imposing a definitive anti-dumping duty on imports of optical fibre cables originating in the People’s Republic of China (OJ L 96, 24.3.2022, p. 36).

(5) https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52020XC0316%2802%29

(6) A producer is any company in the country concerned which produces and exports the product concerned to the Union market, either directly or via a third party, including any of its related companies involved in the production, domestic sales or exports of the product concerned.

(7) All references to the publication of this Notice will be references to publication of this Notice in the Official Journal of the European Union, unless otherwise specified.

(8) Only importers not related to producers in the country concerned can be sampled. Importers that are related to producers have to fill in Annex I to the questionnaire for these exporting producers. In accordance with Article 127 of Commission Implementing Regulation (EU) 2015/2447 of 24 November 2015 laying down detailed rules for implementing certain provisions of Regulation (EU) No 952/2013 of the European Parliament and of the Council laying down the Union Customs Code, two persons shall be deemed to be related if: (a) they are officers or directors of the other person’s business; (b) they are legally recognised partners in business; (c) they are employer and employee; (d) a third party directly or indirectly owns, controls or holds 5 % or more of the outstanding voting stock or shares of both of them; (e) one of them directly or indirectly controls the other; (f) both of them are directly or indirectly controlled by a third person; (g) together they control a third person directly or indirectly; or (h) they are members of the same family (OJ L 343, 29.12.2015, p. 558). Persons shall be deemed to be members of the same family only if they stand in any of the following relationships to one another: (i) husband and wife, (ii) parent and child, (iii) brother and sister (whether by whole or half blood), (iv) grandparent and grandchild, (v) uncle or aunt and nephew or niece, (vi) parent-in-law and son-in-law or daughter-in-law, (vii) brother-in-law and sister-in-law. In accordance with Article 5(4) of Regulation (EU) No 952/2013 of the European Parliament and of the Council laying down the Union Customs Code, ‘person’ means a natural person, a legal person, and any association of persons which is not a legal person but which is recognised under Union or national law as having the capacity to perform legal acts (OJ L 269, 10.10.2013, p. 1).

(9) The data provided by unrelated importers may also be used in relation to aspects of this investigation other than the determination of dumping.

(10) In case of technical problems please contact the Trade Service Desk by email trade-service-desk@ec.europa.eu or by telephone +32 22979797.

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

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