Council Regulation (EC) No 42/2007 of 15 January 2007 extending the definitive anti-dumping duty imposed by Regulation (EC) No 398/2004 on imports of silicon originating in the People’s Republic of China to imports of silicon consigned from the Republic of Korea whether declared as originating in the Republic of Korea or not
Date: 2007-01-15
Institutions: Council of the European Union
Subjects: China, anti-dumping duty, anti-dumping legislation, import, originating product, semi-metal

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(Acts adopted under the EC Treaty/Euratom Treaty whose publication is obligatory)

I

REGULATIONS

COUNCIL REGULATION (EC) No 42/2007

of 15 January 2007

extending the definitive anti-dumping duty imposed by Regulation (EC) No 398/2004 on imports of
silicon originating in the People’s Republic of China to imports of silicon consigned from the
Republic of Korea whether declared as originating in the Republic of Korea or not

THE COUNCIL OF THE EUROPEAN UNION,

measures
in force had been absorbed by Chinese
exporters and imposed an additional duty on imports
of silicon originating in China.

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 Article 13 thereof,

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

(3)

In 1997, both expiry and interim reviews were initiated.
These reviews were concluded by Council Regulation
(EC) No 2496/97 (4). As a result of
these reviews,
measures were maintained but it was considered more
appropriate to change the form of the measures from a
fixed duty to an ad valorem duty. The duty rate amounted
to 49 % of the cif price of the imports in question. In
accordance with the lesser duty rule,
this rate corre-
sponded to the injury margin.

Whereas:

(4)

Following an expiry review, the Council concluded by
Regulation (EC) No 398/2004 (5) that the anti-dumping
duty should be maintained.

A. PROCEDURE

1. Existing measures

By Regulation (EEC) No 2200/90 (2),
the Council
imposed definitive anti-dumping measures in the form
of a fixed duty per tonne of silicon originating in the
People’s Republic of China (China)
imported into the
Community.

(5)

Shortly thereafter,
lodged by the
Community industry, the Council, by Regulation (EEC)
No 1607/92 (3),
anti-dumping
concluded that

following a request

the

(1)

(2)

2. Request

the

the

to Article 13(3) of

imposed on imports of

alleged circumvention of

On 6 March 2006, the Commission received a request
the basic Regulation to
pursuant
anti-
investigate
dumping measures
silicon,
classifiable within CN code 2804 69 00 (silicon content
less than 99,99 % by weight) originating in China. The
request was
(Liaison
submitted
(the applicant)
Committee of the Ferro-Alloy Industry)
on behalf of producers representing a major proportion,
namely 100 %, of the Community production of silicon.
The request alleged that the anti-dumping measures in
force on imports of silicon originating in China were
being circumvented by means of transhipment via the
Republic of Korea (Korea).

Euroalliages

by

(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 198, 28.7.1990, p. 57.
(3) OJ L 170, 25.6.1992, p. 1.

(4) OJ L 345, 16.12.1997, p. 1.
(5) OJ L 66, 4.3.2004, p. 15.

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(6)

(7)

(8)

(9)

The request further alleged that there was insufficient due
cause or justification other than the imposition of anti-
dumping measures for such change in the pattern of
trade and that the remedial effects of the existing anti-
dumping measures were being undermined both in terms
of quantity and price. Significant volumes of imports of
silicon from Korea appeared to have replaced imports of
silicon from China.
there was sufficient
In addition,
evidence that these imports were made at prices below
the cost of production and reasonable profit established
for the Community industry in the investigation that led
to the existing measures.

Finally, the applicants alleged that the prices of silicon
consigned from Korea were dumped in relation to the
normal value previously established for silicon orig-
inating in China.

3. Initiation

after

consulting

determined,

Having
the Advisory
Committee, that sufficient prima facie evidence existed
for the initiation of an investigation pursuant to Article
13 of the basic Regulation, the Commission initiated an
investigation by Regulation (EC) No 607/2006 (1)
(the
to Articles 13(3) and
initiating Regulation). Pursuant
14(5) of the basic Regulation, the Commission, by the
initiating Regulation, also directed the customs auth-
orities to register imports of silicon consigned from
Korea, whether declared as originating in Korea or not.

(11)

Two Korean companies offered to cooperate in the inves-
tigation. Only one of these imported silicon from China
into Korea, but did not export it to the Community. The
second cooperating Korean company neither produced
nor imported silicon at all.

5. Investigation Period

(12)

The investigation period covered the period from 1 April
2005 to 31 March 2006 (the IP). Data was collected
from 2001 up to the end of the IP to investigate the
alleged change in the pattern of trade.

B. RESULTS OF THE INVESTIGATION

1. General considerations/degree of cooperation

(13) As mentioned in recital 10, no producers/exporters of
silicon in China cooperated in the investigation nor did
any Community importer submit information relevant
for the investigation. As mentioned in recital 11, only
two companies in Korea cooperated but they did not
export silicon to the Community during the period
considered. Accordingly,
findings in respect of silicon
consigned from Korea to the Community had to be
made on the basis of the facts available in accordance
with Article 18 of the basic Regulation.

4. Investigation

2. Product concerned and like product

the producers/exporters

The Commission officially advised the authorities of
China and Korea,
and the
importers in the Community known to be concerned
the
as well as the applicant Community industry of
initiation of the investigation. Questionnaires were sent
to the producers/exporters in Korea and to the Chinese
and Korean authorities. Interested parties were given the
opportunity to make their views known in writing and to
in the
request a hearing within the time limit set
initiating Regulation. All parties were informed that
non-cooperation might
application of
Article 18 of
the basic Regulation and to findings
being made on the basis of the facts available.

lead to the

(10) No

questionnaire

from
exporters/producers in China, nor did the Commission
receive any comments from the Chinese authorities.

received

replies

were

(1) OJ L 107, 20.4.2006, p. 24.

(14)

(15)

The product concerned is the same as in the original
investigation, i.e. silicon originating in China classifiable
within CN code 2804 69 00 (silicon content less than
99,99 % by weight).
It is recalled that silicon with a
less
higher purity,
than 99,99 % of silicon, used mostly in the electronic
semi-conductor
falls under a different CN
industry,
code and is not covered by this proceeding.

is containing by weight not

that

From the information received from the two cooperating
Korean companies as well as information available in the
request submitted by the applicant, it was concluded that
silicon exported to the Community from China and
silicon consigned from Korea to the Community have
the same basic physical characteristics and the same
uses. Therefore,
they are considered as like products
within the meaning of Article 1(4) of the basic Regu-
lation. No submissions
to the contrary were made
during the investigation.

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3. Change in the pattern of trade between third

(20)

countries and the Community

(16) As stated above, the change in the pattern of the trade
was alleged to stem from transhipment via Korea.

It is therefore concluded that, in the absence of any other
sufficient due cause or economic justification within the
meaning of the second sentence of Article 13(1) of the
basic Regulation,
trade
stemmed from the anti-dumping duty imposed on
imports of silicon originating in China and must be
assumed, as the complainant states, to consist in trans-
hipment through Korea.

the change in the pattern of

(17) Due

to the

absence of

cooperation from Korean
exporting companies, the volume and value of Korean
the product concerned to the Community
exports of
information
were determined on the basis of
import
available, which in this
statistics.

case was Eurostat

the

(18)

The change in the pattern of trade is based on data from
the first table reproduced below. Large volumes of silicon
started to be imported from Korea into the Community
in 2002 and 2003, and continued at a high level until
the IP. The significant volumes of
imports consigned
from Korea between,
in particular, 2003 and the IP,
while fluctuating during this period, coincided with a
substantial and continuing reduction (more than 50 %)
of imports from China.

Table 1

Imports of silicon from China and Korea (volume)

Country

2002

2003

2004

2005

IP (April
2005-
March
2006)

China
(tonnes)

Korea
(tonnes)

39 705

56 226

55 939

30 346

22 358

1 070

5 540

2 340

4 380

3 658

Source: Eurostat.

4. Circumvention process found and insufficient due
cause or economic justification

(19)

present

in the

investigation,

Since no Korean company which exported silicon to the
EU cooperated
the
assessment of circumvention was based on information
available in accordance with Article 18 of the basic Regu-
lation, including information provided in the complaint.
The investigation did not reveal information suggesting
that that silicon was produced in Korea. On the contrary,
both Korean cooperating companies confirmed that no
production of silicon exists in Korea.

(21)

5. Undermining of the remedial effects of the duty
in terms of the prices and/or the quantities of the
like product

It is evident from the data mentioned in recital 18 that a
quantitative change in the pattern of Community imports
the product concerned occurred and that Chinese
of
imports into the Community decreased significantly in
2005, while at
the same time there was a surge of
exports of the product concerned to the Community
from Korea, a country where there is no production of
silicon. It is therefore clear that the marked change in
trade flows undermined the remedial effects of
the
measures in terms of the quantities imported into the
Community market even if
the imports from Korea
during the IP amounted to significantly less than the
reduction of
imports from China between 2004 and
the IP.

(22) With regard to prices of silicon consigned from Korea, in
the absence of cooperation, it was necessary to refer to
Eurostat data. It was found that the average export prices
from Korea to the Community were far below the sale
prices and the costs of the Community industry as estab-
lished in the investigation which led to the imposition of
the current measures.

Table 2

Imports of silicon from China and Korea (EUR per tonne)

Country

2002

2003

2004

2005

China

Korea

1 063

1 031

1 000

1 026

964

912

961

1 039

Source: Eurostat.

IP (April
2005-
March
2006)

1 001

1 061

(23)

It is therefore concluded that the imports of the product
concerned from Korea undermine the remedial effects of
the duty both in terms of quantities and prices.

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6. Evidence of dumping in relation to the normal
value previously established for the like product

(24) As explained in recitals 10 and 11, given the absence of
cooperation and in order to determine whether evidence
of dumping could be found with respect to the exports
of the product concerned to the Community from Korea
during the IP, Eurostat data at CN level were used
pursuant to Article 18 of the basic Regulation as the
basis for establishing export prices to the EU.

(25)

In accordance with Article 13(1) of the basic Regulation,
these export prices were compared with the normal value
previously established,
in this case the normal value
established in the most recent expiry review.

D. REQUESTS FOR EXEMPTION

the Commission to determine whether

(30) Although during this investigation no genuine producer/
exporter of silicon to the Community was found to exist
in Korea or made itself known to the Commission, any
exporters concerned which consider lodging a request for
an exemption from the extended anti-dumping duty
pursuant to Article 13(4) of the basic Regulation will
be required to complete a questionnaire in order to
an
enable
exemption may be warranted. Such exemption may be
granted after the assessment of the market situation of
the product concerned, production capacity and capacity
utilisation, procurement and sales and the likelihood of
continuation of practices for which there is insufficient
due cause or economic justification and the evidence of
dumping. The Commission would normally also carry
out an on the spot verification visit. The request
should be addressed to the Commission forthwith, with
all relevant information, in particular any modification in
the company’s activities linked to production and sales.

(26)

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

(31) Where an exemption is warranted, the Commission will,
after consultation of the Advisory Committee, propose
the amendment of
this Regulation accordingly. Sub-
sequently, any exemption granted will be monitored to
ensure compliance with the conditions set therein.

C. MEASURES

(32)

(27)

In view of the findings above it is found that circum-
vention has taken place within the meaning of
the
second sentence of Article 13(1) of the basic Regulation.
In accordance with the first sentence of Article 13(1) of
the basic Regulation, the existing anti-dumping measures
the product concerned originating in
on imports of
China, should be extended to imports of
the same
product consigned from Korea, whether declared as orig-
inating in Korea or not.

(28)

The measures to be extended should be the ones estab-
lished in Article 1(2) of Regulation (EC) No 398/2004,
which are a definitive anti-dumping duty of 49 %
applicable to the net, free-at-Community-frontier price,
before customs duty.

E. PROCEDURE

Interested parties were informed of the essential facts and
considerations on the basis of which the Council
intended to extend the definitive anti-dumping duty in
force and were given the opportunity to comment and to
be heard. No comments which were of a nature to
change the above conclusions were received,

HAS ADOPTED THIS REGULATION:

Article 1

The definitive anti-dumping duty imposed by Regulation
1.
(EC) No 398/2004 on imports of silicon falling within CN code
2804 69 00 originating in the People’s Republic of China is
hereby extended to imports of silicon, falling within CN code
ex 2804 69 00 (TARIC code 2804 69 00 10), consigned from
the Republic of Korea whether declared as originating in the
Republic of Korea or not.

(29)

In accordance with Articles 13(3) and 14(5) of the basic
Regulation, which provides that any extended measure
should apply to imports which entered the Community
under registration imposed by the initiating Regulation,
duties should be collected on those registered imports of
silicon consigned from Korea.

2.
The duties extended by paragraph 1 of this Article shall be
collected on imports registered in accordance with Article 2 of
Commission Regulation (EC) No 607/2006 and Articles 13(3)
and 14(5) of Regulation (EC) No 384/96.

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The provisions in force concerning customs duties shall

3.
apply.

Article 2

1.
Requests for exemption from the duty extended by Article
1 shall be made in writing in one of the official languages of the
Community and must be signed by a person authorised to
represent
to the
the applicant. The request must be sent
following address:

European Commission
Directorate-General for Trade
Directorate B
Office: J-79 05/17
B-1049 Brussels
Fax (32-2) 295 65 05.

the Commission,

In accordance with Article 13(4) of Regulation (EC) No
2.
384/96,
consulting the Advisory
after
Committee, may authorise by decision the exemption of
imports which do not circumvent the anti-dumping measures
imposed by Regulation (EC) No 398/2004 from the duty
extended by Article 1.

Article 3

Customs authorities are hereby directed to discontinue the regis-
tration of imports, established in accordance with Article 2 of
Regulation (EC) No 607/2006.

Article 4

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

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

Done at Brussels, 15 January 2007.

For the Council
The President

F.-W. STEINMEIER