Council Regulation (EC) No 268/2006 of  14 February 2006  amending Regulation (EC) No 1212/2005 imposing a definitive anti-dumping duty on imports of certain castings originating in the People’s Republic of China
Date: 2006-02-14
Institutions: Council of the European Union
Subjects: China, anti-dumping duty, anti-dumping legislation, import, iron and steel product

17.2.2006

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Official Journal of the European Union

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COUNCIL REGULATION (EC) No 268/2006

of 14 February 2006

amending Regulation (EC) No 1212/2005 imposing a definitive anti-dumping duty on imports of
certain castings originating in the People’s Republic of China

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty
Community,

establishing the European

Having regard to Council Regulation (EC) No 384/96 of 22
December 1995 on protection against dumped imports from
countries not members of the European Community (1)
(the
basic Regulation), and in particular Articles 8 and 9 thereof,

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

Whereas:

A. PROCEDURE

The Council by Regulation (EC) No 1212/2005 (2) (the
definitive Regulation)
imposed definitive anti-dumping
duties on imports of certain castings originating in the
People’s Republic of China (original investigation).

B. NEW EXPORTER REVIEWS

The

exporting

In the original investigation sampling was applied to the
non-sampled
Chinese
producers.
companies which were
economy
granted market
in accordance with the provisions of
treatment (MET),
Article 2(7)(c) of the basic Regulation, were attributed
the 0 % dumping duty which was established for the
sole sampled company which was granted MET. The
non-sampled companies which were granted individual
in accordance with the provisions of
treatment
Article 9(5) of
received the
weighted average duty of 28,6 % established for the
sampled companies that were granted IT. A country-
imposed on all other
wide duty of 47,8 % was
companies.

the basic Regulation,

(IT),

Pursuant to Article 11(4) of the basic Regulation, a new
dumping
exporter

review to determine

individual

(1)

(2)

(3)

(1) OJ L 56, 6.3.1996, p. 1. Regulation as last amended by Regulation

(EC) No 2117/2005 (OJ L 340, 23.12.2005, p. 17).

(2) OJ L 199, 29.7.2005, p. 1.

and the

margins could not be initiated in this proceeding, as
sampling was used
investigation.
in the original
in order to ensure equal treatment between
However,
any new exporting producer
cooperating
companies not included in the sample of the original
investigation,
it is considered that provision should be
made in order to respectively impose the duty applicable
to the companies which received MET (0 %) or the
weighted average duty of companies with IT (28,6 %),
to any new exporting producers which can demonstrate
that they meet the criteria set in Article 2(7)(c) of the
basic Regulation in order to be granted MET or otherwise
the criteria of Article 9(5) in order to be granted IT, and
that
they would therefore be entitled to a review
pursuant to Article 11(4) of the basic Regulation.

(4)

(5)

(6)

C. UNDERTAKINGS

in Article 8(2) of

Upon publication of the definitive Regulation, no under-
takings could be accepted by the Commission. During
the investigation leading to the imposition of definitive
measures, several exporting producers had indicated their
intention to offer a price undertaking but failed to submit
sufficiently substantiated undertaking offers within the
deadlines set
the basic Regulation.
Nevertheless, as set out in recital 152 of the definitive
Regulation, the Council, in view of the complexity of the
issue for the economic operators in question (predomi-
nantly small- and medium-sized enterprises) and given
that
the definitive disclosure was not preceded by a
provisional disclosure, considered that they should excep-
tionally be allowed to complete their undertaking offers
beyond the said deadline.

Subsequent to the deadline mentioned above, the China
Import and Export of
Chamber of Commerce for
Machinery and Electronic Products (CCCME)
together
with twenty cooperating companies or groups of coop-
erating companies offered an acceptable joint under-
taking.

The Commission by Decision 2006/109/EC (3), accepted
the undertaking offer. The Decision sets out in more
detail the reasons for accepting this undertaking. The
Council recognises that the undertaking offer eliminates
the injurious effect of dumping and limits to a sufficient
degree the risk of circumvention.

(3) See page 59 of this Official Journal.

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Official Journal of the European Union

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(7)

(8)

(9)

(10)

(11)

invoice containing at

To further enable the Commission to effectively monitor
compliance with the undertaking, when the request for
release for free circulation is presented to the relevant
customs authority, exemption from the anti-dumping
duty will be conditional upon the presentation of a
commercial
the elements
listed in the Annex to this Regulation. This level of
information is also necessary to enable customs autho-
rities to ascertain with sufficient precision that shipments
correspond to the commercial documents. Where no
is presented, or when it does not
such invoice
correspond to the product presented to customs,
the
appropriate rate of anti-dumping duty will
instead be
payable.

least

To further ensure the effective respect of the undertaking,
the importers should be made aware that any violation of
the undertaking may lead to the retrospective application
of the anti-dumping duty for the relevant transactions.
Therefore, it is necessary to implement legal provisions
providing for the incurrence of a customs debt at the
level of the appropriate anti-dumping duty whenever one
or more conditions for the exemption are not respected.
A customs debt should therefore be incurred whenever
the declarant has chosen to release the goods for free
circulation, i.e. without collection of anti-dumping duty,
and one or several conditions of that undertaking are
found to have been violated.

In the event of a breach of the undertaking, the anti-
dumping duty may be recovered, provided that
the
Commission has withdrawn the acceptance of the under-
taking in accordance with Article 8(9) of the basic Regu-
lation, by referring to that particular transaction and,
relevant undertaking
accordingly, by declaring
invoice as invalid. Therefore, pursuant to Article 14(7)
should
of
the basic Regulation, customs authorities
inform the Commission immediately whenever
indi-
cations of a violation of the undertaking are found.

the

1. the following paragraph shall be added to Article 1:

‘4. Where any new exporting producer in the People’s
sufficient evidence to the
Republic of China provides
Commission that:

— it did not export

described in paragraph 1 during the
period (1 April 2003 to 31 March 2004),

to the Community the product
investigation

— it is not related to any of the exporters or producers in
the People’s Republic of China which are subject to the
anti-dumping measures imposed by this Regulation,

— it has actually exported to the Community the product
concerned after the investigation period on which the
measures are based, or it has entered into an irrevocable
contractual obligation to export a significant quantity to
the Community,

— it operates under market economy conditions defined in
Article 2(7)(c) of the basic Regulation or alternatively that
it fulfils the requirements to have an individual duty in
accordance with Article 9(5) of the basic Regulation,

by

consulting

the Council, acting by simple majority on a proposal
the
the Commission after
submitted
Advisory Committee, may amend paragraph 2 by adding
the new exporting producer (i) to the companies subject to
the duty rate of 0 % applicable to companies to whom
market economy treatment was granted in accordance with
to the
the basic Regulation or
Article 2(7)(c) of
to the weighted average duty rate of
companies subject
28,6 % applicable
to whom individual
to companies
treatment was granted in accordance with Article 9(5) of
the basic Regulation respectively.’;

(ii)

The companies concerned and the CCCME have been
informed of the essential facts, considerations and obli-
gations upon which the acceptance of the undertaking is
based.

‘Article 2

2. the following Article shall be added after Article 1:

It should be noted that in the event of a breach or
withdrawal of the undertaking or in case of a withdrawal
of acceptance of the undertaking by the Commission, the
anti-dumping duty shall automatically apply, pursuant to
Article 8(9) of the basic Regulation,

HAS ADOPTED THIS REGULATION:

Article 1

Regulation (EC) No 1212/2005 is hereby amended as follows:

1.
Imports declared for release into free circulation which
are invoiced by companies from which undertakings are
accepted by the Commission and whose names are listed
in Commission Decision 2006/109/EC (1), as from time to
time amended shall be exempt from the anti-dumping duty
imposed by Article 1, on condition that:

— they are manufactured, shipped and invoiced directly by
the said companies to the first independent customer in
the Community, and

— such imports are accompanied by a valid undertaking
commercial
and the

invoice. An undertaking
invoice
declaration stipulated in the Annex, and

is
a
elements

invoice
the

containing at

least

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— the goods declared and presented to customs correspond
precisely to the description on the undertaking invoice.

A customs debt shall be incurred at

2.
the time of
acceptance of the declaration for release into free circulation
whenever it is established, in respect of goods described in
Article 1 and exempt from anti-dumping duty under the
conditions listed in paragraph 1, that one or more of such
conditions are not fulfilled. The second condition set out in
paragraph 1 shall be considered as not being fulfilled where
the undertaking invoice is found not to comply with the
provisions of the Annex. It shall also be considered as not
fulfilled where the undertaking invoice is found not to be
authentic and where the Commission has withdrawn the
acceptance of the undertaking pursuant to Article 8(9) of
the basic Regulation in a Regulation or Decision which
refers
the
relevant undertaking invoice(s) as invalid.

transaction(s) and declares

to (a) particular

pursuant to Article 201 of Council Regulation (EEC) No
2913/92 of 12 October 1992 establishing the Community
Customs Code (2). The customs debt
incurred shall be
recovered upon withdrawal by the Commission of
the
acceptance of the undertaking.

___________
(1) OJ L 47, 17.2.2006, p. 59.
(2) OJ L 302, 19.10.1992, p. 1. Regulation as last amended
the European
(OJ L 117, 4.5.2005,

by Regulation (EC) No 648/2005 of
Parliament and of
p. 13).’;

the Council

3. Article 2 shall be renumbered Article 3;

4. the Annex to this Regulation shall be added to Regulation

(EC) No 1212/2005.

Importers shall accept as a normal trade risk, that the
3.
non-fulfilment, by any party, of one or more of
the
conditions listed in paragraph 1 and further defined in
incurred
paragraph 2 may give rise to a customs debt

Article 2

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

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

Done at Brussels, 14 February 2006.

For the Council
The President

K.-H. GRASSER

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ANNEX

‘ANNEX

The following elements shall be indicated in the commercial invoice accompanying the company's sales of certain castings
to the Community which are subject to an undertaking.

1. The heading “COMMERCIAL INVOICE ACCOMPANYING GOODS SUBJECT TO AN UNDERTAKING”.

2. The name of the company mentioned in Article 1 of the Commission Decision 2006/109/EC accepting the under-

taking issuing the commercial invoice.

3. The commercial invoice number.

4. The date of issue of the commercial invoice.

5. The TARIC additional code under which the goods on the invoice are to be customs cleared at the Community

frontier.

6. The exact description of the goods, including:

— product code number (PCN) used for the purposes of the investigation and the undertaking (e.g. PCN 1, PCN 2,

etc.),

— plain language description of the goods corresponding to the PCN concerned,

— company product code (CPC) (if applicable),

— CN code,

— quantity (to be given in tonnes).

7. The description of the terms of the sale, including:

— price per tonne,

— the applicable payment terms,

— the applicable delivery terms,

— total discounts and rebates.

8. Name of the company acting as an importer in the Community to which the commercial invoice accompanying goods

subject to an undertaking is issued directly by the company.

9. The name of the official of the company that has issued the invoice and the following signed declaration:

“I, the undersigned, certify that the sale for direct export to the European Community of the goods covered by this
invoice is being made within the scope and under the terms of the undertaking offered by (COMPANY), and accepted
by the European Commission through Decision 2006/109/EC, I declare that the information provided in this invoice
is complete and correct.” ’