Proposal for a Council Regulation terminating the new exporter review of Regulation (EC) No 1659/2005 imposing a definitive anti-dumping duty on imports of certain magnesia bricks originating in the People's Republic of China
Date: 2008-08-18
Institutions: European Commission
Subjects: China, anti-dumping duty, anti-dumping legislation, brick, heat-resisting materials, import, originating product

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 18.8.2008 
COM(2008) 523 final 

Proposal for a 

COUNCIL REGULATION 

terminating the new exporter review of Regulation (EC) No 1659/2005 imposing a 
definitive anti-dumping duty on imports of certain magnesia bricks originating in the 
People's Republic of China 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

1. 

Context of the proposal 

•  Grounds for and objectives of the proposal 

This  proposal  concerns  the  application  of  Council  Regulation  (EC)  No  384/96  of  22 
December 1995 on protection against dumped imports from countries not members of 
the European Community, as last amended by Council Regulation (EC) No 2117/2005 
of 21 December 2005 (‘the basic Regulation’). 

•  General context 

This proposal is made in the context of the implementation of the basic Regulation and 
is the result of an investigation which was carried out in line with the substantive and 
procedural requirements laid out in the basic Regulation. 

•  Existing provisions in the area of the proposal 

Council  Regulation  (EC)  No  1659/2005,  imposing  a  definitive  anti-dumping  duty  on 
imports  of  certain  magnesia  bricks  originating  in  the  People's  Republic  of  China 
(PRC).  

•  Consistency with other policies and objectives of the Union 

Not applicable. 

2. 

Consultation of interested parties and impact assessment 

•  Consultation of interested parties 

Interested parties concerned by the proceeding have had the possibility to defend their 
interests during the investigation, in line with the provisions of the basic Regulation. 

•  Collection and use of expertise 

There was no need for external expertise. 

•  Impact assessment 

This proposal is the result of the implementation of the basic Regulation. 

The  basic  Regulation  does  not  foresee  a  general  impact  assessment  but  contains  an 
exhaustive list of conditions that have to be assessed. 

3. 

Legal elements of the proposal 

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•  Summary of the proposed action 

On 21 December 2007, the Commission initiated a new exporter review investigation 
of  the  anti-dumping  measures  applicable  to  imports  of  certain  magnesia  bricks 
originating in the PRC. 

While  the  investigation  confirmed  that  the  applicant  was  a  genuine  new  exporter,  it 
was  found  that  the  applicant  did  not  fully  cooperate  since  the  applicant  failed  to 
disclose in a timely manner the existence of two related companies. Information about 
these  companies  was  obtained  at  a  late  stage  of  the  investigation  depriving  the 
Commission of the opportunity to verify the information which was submitted. One of 
these companies was involved in sales of certain magnesia bricks and the other was a 
future  producer  of  certain  magnesia  bricks.  Thus,  it  was  not  possible  to  assess  the 
eligibility  of  the  applicant  to  an  individual  duty  rate.  On  this  basis,  the  residual  duty 
defined in the original investigation should continue to apply to the applicant. 

Therefore,  it  is  suggested  that  the  Council  adopts  the  attached  proposal  for  a 
Regulation  in  order  to  terminate  the  case  without  any  amendment  to  the  original 
investigation. 

•  Legal basis 

Council  Regulation  (EC)  No  384/96  of  22 December  1995  on  protection  against 
dumped  imports  from  countries  not  members  of  the  European  Community,  as  last 
amended by Council Regulation (EC) No 2117/2005 of 21 December 2005. 

•  Subsidiarity principle 

The proposal falls under the exclusive competence of the Community. The subsidiarity 
principle therefore does not apply. 

•  Proportionality principle 

The proposal complies with the proportionality principle for the following reason: 

The form of action is described in the above-mentioned basic Regulation and leaves no 
scope  for  national  decision.  Indication  of  how  financial  and  administrative  burden 
falling  upon  the  Community,  national  governments,  regional  and  local  authorities, 
economic operators and citizens is minimized and proportionate to the objective of the 
proposal is not applicable 

•  Choice of instruments 

Proposed instrument: Regulation. 

Other  means  would  not  be  adequate  because  the  basic  Regulation  does  not  foresee 
alternative options. 

4. 

Budgetary implication 

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The proposal has no implication for the Community budget. 

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Proposal for a 

COUNCIL REGULATION 

terminating the new exporter review of Regulation (EC) No 1659/2005 imposing a 
definitive anti-dumping duty on imports of certain magnesia bricks originating in the 
People's Republic of China 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community,  

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 Community1 (the basic 
Regulation), and in particular Article 9(4) and Article 11(4) thereof, 

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

Whereas: 

1. 

PROCEDURE  

1.1. 

Existing measures 

(1) 

The Council, by Regulation (EC) No 1659/20052 ('the original Regulation'), imposed a 
definitive anti-dumping duty on imports of certain magnesia bricks originating in the 
People's Republic of China ('the PRC'). The measures consist of an ad valorem duty 
rate of 39,9%, with the exception of six companies expressly mentioned in the original 
Regulation which are subject to individual duty rates. 

1.2. 

Request for a review 

(2) 

Subsequent  to  the  imposition  of  definitive  measures,  the  Commission  received  an 
application  to  initiate  a  new  exporter  review  of  Regulation  (EC)  No  1659/2005, 
pursuant to Article 11(4) of the basic Regulation, from a Chinese exporting producer, 
Yingkou Dalmond Refractories Co. Ltd. ('the applicant'). The applicant claimed that it 
was  not  related  to  any  of  the  exporting  producers  in  the  PRC  subject  to  the  anti-
dumping  measures  in  force  with  regard  to  magnesia  bricks.  Furthermore,  it  claimed 

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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). 
OJ L 267, 12.10.2005, p. 1.  

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that  it  had  not  exported  magnesia  bricks  during  the  original  period  of  investigation 
(from 1 April 2003 to 31 March 2004), but had exported them to the Community after 
that period. 

1.3. 

Initiation of a new exporter review 

(3) 

(4) 

The  Commission  examined  the  prima  facie  evidence  submitted  by  the  applicant  and 
considered it sufficient to justify the initiation of a review in accordance with Article 
11(4) of the basic Regulation. After consultation of the Advisory Committee and after 
the  Community  industry  concerned  had  been  given  the  opportunity  to  comment,  the 
Commission  initiated,  by  Regulation  (EC)  No  1536/20073,  a  review  of  Regulation 
(EC) No 1659/2005 with regard to the applicant. 

Pursuant  to  Commission  Regulation  (EC)  No  1536/2007,  the  anti-dumping  duty  of 
39,9% imposed by Regulation (EC) No1659/2005 was repealed with regard to imports 
of magnesia bricks produced and sold for exports to the Community by the applicant. 
Simultaneously, pursuant to Article 14(5) of the basic Regulation, customs authorities 
were directed to take appropriate steps to register such imports. 

1.4. 

Product concerned and like product 

(5) 

The  product  concerned  is  the  same  as  that  described  in  the  original  Regulation,  i.e. 
chemically bonded, unfired magnesia bricks, whose magnesia component contains at 
least  80%  MgO,  whether  or  not  containing  magnesite,  originating  in  the  PRC, 
currently classifiable within CN codes ex 6815 91 00, ex 6815 99 10 and ex 6815 99 
90 (TARIC codes 6815 91 00 10, 6815 99 10 20 and 6815 99 90 20). 

(6) 

The like product is also the same as that defined in the original Regulation.  

1.5. 

Parties concerned 

(7) 

(8) 

The  Commission  officially  advised  the  Community  industry,  the  applicant  and  the 
representatives  of  the  exporting  country  of  the  initiation  of  the  review.  Interested 
parties  were  given  the  opportunity  to  make  their  views  known  in  writing  and  to  be 
heard. 

The  Commission  sent  a  market  economy  treatment  (MET)  claim  form  and  a 
questionnaire  to  the  applicant  and  received  a  reply  within  the  deadline  set  for  that 
purpose. The Commission sought to verify all the information it deemed necessary for 
the determination of dumping, and verification visits were carried out at the premises 
of the applicant and the following cooperating related companies in the PRC: 

–  Yingkou Dalmond Refractories Co. Ltd. (the applicant) 

–  Liaoning Qunyi Group Refractories Co. Ltd. (the mother company) 

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OJ L 337, 21.12.2007, P. 42. 

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–  Yingkou Guangshan Refractories Co. Ltd. (related producer) 

–  Dalian Dalmond Trading Co. Ltd. (related exporter) 

1.6. 

Investigation period 

(9) 

The investigation of dumping covered the period from 1 April 2006 to 30 September 
2007 ('investigation period' or 'IP'). 

2. 

RESULTS OF THE INVESTIGATION 

2.1. 

New exporter qualification 

(10)  The  Community  industry  argued  that  the  applicant  was  exporting  the  product 
concerned  to  the  Community  as  early  as  2004  and  backed  this  assertion  by  various 
website  pages  and  catalogues  of  the  applicant  mentioning  sales  in  the  Community. 
However, these documents did not mention specifically the product concerned or the 
date  of  the  export,  and  the  examination  of  the  sales  ledger  of  the  applicant  and  its 
related  companies  showed  no  evidence  of  such  exports.  The  investigation  confirmed 
that  the  applicant  had  not  exported  the  product  concerned  during  the  original 
investigation  period  and  that  it  had  begun  exporting  to  the  Community  after  that 
period. 

(11)  Furthermore, the applicant was able to satisfactorily demonstrate that it did not have 
any links, direct or indirect, with any of the Chinese exporting producers subject to the 
anti-dumping measures in force with regard to the product concerned. 

(12)  Accordingly, it was confirmed that the company should be considered a 'new exporter' 

in accordance with Article 11(4) of the basic Regulation. 

2.2.  Market Economy Treatment (MET) 

(13)  Pursuant  to  Article  2(7)(b)  of  the  basic  Regulation,  in  anti-dumping  investigations 
concerning  imports  from  the  PRC,  normal  value  shall  be  determined  in  accordance 
with paragraphs 1 to 6 of Article 2 of the basic Regulation for those producers which 
were found to meet the criteria laid down in Article 2(7)(c) of the basic Regulation, i.e. 
where  it  is  shown  that  market  economy  conditions  prevail  in  respect  of  the 
manufacture  and  sale  of  the  like  product.  These  criteria  are  set  out  in  a  summarised 
form below:  

–  business  decisions  are  made  in  response  to  market  signals,  without  significant 

State interference, and costs reflect market values,  

–  firms  have  one  clear  set  of  basic  accounting  records  which  are  independently 
audited in line with International Accounting Standards ('IAS') and applied for all 
purposes,  

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–  there  are  no  significant  distortions  carried  over  from  the  former  non-market 

economy system,  

–  bankruptcy and property laws guarantee stability and legal certainty, 

–  currency exchanges are carried out at market rates. 

(14)  The applicant requested MET pursuant to Article 2(7)(b) of the basic Regulation and 

was invited to complete a MET claim form.  

(15) 

(16) 

In the course of the investigation the applicant submitted a number of MET claims for 
its  related  companies.  After  analysis  of  the  claims,  the  Commission  identified  four 
MET claims for verification of companies involved in the production and sale of the 
product  concerned.  These  companies  are  listed  in  recital  (8)  of  this  Regulation. 
However,  at  a  late  stage  of  the  investigation,  it  was  found  that  the  applicant  was 
related to another producer and another exporter of the product concerned located in 
the PRC. These companies did not fill a separate MET claim form and thus it was not 
possible  to  assess  the  situation  of  the  whole  group  within  which  the  applicant  is 
operating. 

It  is  the  Commission's  consistent  practice  to  examine  whether  a  group  of  related 
companies, as a whole, fulfils the conditions for MET. This is deemed to be necessary 
to  avoid  sales  of  a  group  of  companies  being  channelled  via  one  of  the  related 
companies  in  the  group,  should  a  preferential  individual  duty  rate  be  granted  to  that 
company.  Therefore,  in  cases  where  a  subsidiary  or  any  other  related  company  is  a 
producer and/or a seller of the product concerned, all such related companies have to 
provide a MET claim form to enable an examination of whether the criteria in Article 
2(7)(c)  of  the  basic  Regulation  are  met.  The  failure  of  the  applicant  to  disclose  the 
existence  of  these  companies  alone  is  sufficient  to  conclude  that  it  cannot  be 
established whether the group as a whole fulfils all the conditions for MET.  

(17)  Nevertheless,  it  should  be  noted  that  the  investigation  revealed  that  out  of  the  four 
companies of the group that submitted MET claim forms, only one company fulfilled 
all the conditions for granting MET. The remaining three companies did not fulfil the 
first three criteria mentioned in recital (13) above.  

(18)  As  regards  the  mother  company,  this  company  did  not  demonstrate  that  it  was  free 
from State interference. Firstly, the source of the capital of the company incorporated 
in  2001  could  not  be  established  and  the  accounts  demonstrating  the  capital  import 
could  not  be  reconciled  (criterion  one).  Secondly,  this  company  did  not  substantiate 
that  it  had  one  clear  set  of  basic  accounting  records  prepared  and  audited  in 
compliance  with  IAS.  In  particular,  the  company  did  not  have  individual  audited 
accounts.  It  only  had  audited  consolidated  financial  statements,  specifically  prepared 
upon  request  of  a  creditor.  Furthermore,  the  unaudited  individual  accounts  also 
showed several breaches of the IAS, concerning fixed assets and depreciation, booking 
of certain assets and the revaluation of assets (criterion two).  

(19)  As regards the applicant, it did not demonstrate that it was free from State interference. 
In  particular,  its  Articles  of  Association  ('AoA'),  which  were  communicated  to  the 
State authorities in order to obtain a business licence, contained restrictions for sales 
on the domestic market. In addition, the company was unable to provide a contract for 

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the supply of energy (criterion one). Secondly, the company did not substantiate that it 
had  one  clear  set  of  basic  accounting  records,  which  were  prepared  and  audited  in 
compliance with IAS (criterion two). Finally, the applicant did not demonstrate that it 
was  free  from  significant  distortions  carried  over  from  the  former  non-market 
economy  system,  in  particular  because  not  all  its  initial  assets  were  independently 
evaluated, and because it benefited from significant tax rebates (criterion three). 

(20)  As  regards  the  third  company,  it  did  not  demonstrate  that  business  decisions  were 
made in response to market signals, without significant State interference, and that its 
costs  reflect  market  values  (criterion  one).  Secondly,  this  company  did  not 
demonstrate that it had one clear set of basic accounting records, which were prepared 
and audited in compliance with IAS: several breaches of IAS were noted such as the 
late  booking  of  revenues,  or  incorrect  depreciation  of  fixed  assets  (criterion  two). 
Finally, the company did not demonstrate that it was free from significant distortions 
carried  over  from  the  former  non-market  economy  system,  in  particular  because  the 
initial  assets  of  the  company  could  not  be  considered  as  independently  evaluated 
(criterion three). 

(21)  Based on the above facts and considerations, the applicant and the group as a whole, in 

which it operates, could not be granted MET. 

(22)  The  Community  industry,  the  applicant  and  the  authorities  of  the  exporting  country 
were  given  an  opportunity  to  comment  on  the  findings  concerning  MET.  Only  the 
applicant submitted such comments. 

(23)  The  applicant  first  argued  that  the  two  companies  discovered  at  a  late  stage  of  the 
investigation as mentioned in recital (15) above did not have to submit MET claims. 
According to the applicant, MET claims should be submitted by producers and traders 
of  the  product  concerned  during  the  IP.  The  two  companies  in  question  were  not 
involved in the production or sale of the product concerned during the IP and beyond 
because the related exporter was liquidated at the beginning of 2008, and the related 
producer was not fully operational during the IP since it has not obtained a production 
licence.  

(24) 

In this regard it is recalled that the applicant was given an opportunity to and provided 
MET  claims  for  most  of  its  related  companies.  However,  it  failed  to  disclose  the 
existence  of  these  two  companies  within  the  deadlines  set  for  this  purpose,  as 
explained in the following recitals (25) and (26).  

(25)  The  existence  of  the  alleged  liquidated  exporter  was  discovered  by  the  Commission 
and  confirmed  by  the  applicant  just  before  the  verification  visit  in  the  PRC.  The 
company did not file an MET claim and, in addition, the applicant, despite a request 
from  the  Commission,  did  not  provide  any  accounting  records  and  other  relevant 
information to clarify the exact activities of this company during the IP. Therefore, the 
Commission was unable to establish that this company was not involved in the sale of 
the product concerned during the IP.  

(26)  As  regards  the  related  producer,  its  existence  was  communicated  to  the  Commission 
during  the  verification  visit  in  the  PRC  and  thus,  since  this  producer  was  located  in 
another province, the Commission was unable to verify on-the-spot the exact nature of 
its  operations  and  whether  in  fact  the  company  has  not  started  production  of  the 

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product  concerned.  It  was  found  that  although  the  company  has  not  yet  obtained  a 
production licence, its business licence granted in 2007, namely during the IP, covers 
the  manufacturing  of  the  product  concerned.  This  related  producer  should  therefore 
have submitted an MET claim. 

(27)  The failure to disclose the existence of these two companies and submit MET claims 
deprived  the  Commission  from  the  possibility  to  verify  the  subsequently  submitted 
information on their activities and to assess whether the group of companies satisfied 
the conditions for granting MET. 

(28)  The applicant also claimed that the parent company should not have been included in 
the scope of the MET investigation given that it is neither a producer nor an exporter 
of the product concerned.  

(29)  The  parent  company  exercises  control  over  its  related  companies,  including  their 
activities  with  regard  to  the  product  concerned.  Thus  any  finding  showing  that  the 
parent company is not following market economy principles has a direct impact on the 
whole  group.  The  investigation  demonstrated  that  strong  links  existed  between  the 
mother  company  and  its  subsidiaries,  in  particular  with  the  applicant  and  another 
cooperating  company  of  the  group  involved  in  the  product  concerned.  There  were 
many  transactions  between  the  said  companies.  In  addition,  the  assets  and  overhead 
expenses were not clearly separated. Moreover, the parent company indicated during 
the verification visit its intention to produce magnesia bricks in the future, and there 
was  nothing  in  its  business  licence  to  prevent  this  company  from  doing  so.  On  this 
basis this claim had also to be rejected. 

(30)  The  applicant  acknowledged  that  the  company  mentioned  in  recital  (20)  above  does 
not  fulfil  all  MET  criteria,  but  claimed  that  it  should  no  longer  be  considered  as  a 
producer since it was currently renting its production facilities to a related producer.  

(31) 

In this respect it was found that this company has the capability to resume production 
on its own right at any time in the future. Therefore, this claim had to be rejected.  

(32)  The applicant made further claims and brought new elements allegedly demonstrating 
that  the  company  mentioned  in  recital  (19)  above  meets  all  the  MET  criteria.  These 
claims are described and discussed below.  

(33)  As regards criterion one, the applicant further argued that any restriction in the AoA is 
purely a private agreement between shareholders in which the State did not interfere. 
The  applicant  also  claimed  that  the  Chinese  Contract  Law  did  not  impose  any 
obligation to sign a written contract for energy supply. 

(34) 

In  this  regard,  it  is  noted  that  the  Chinese  Company  Law  provides  that  the  AoA  of 
companies are binding on the company, shareholders, directors, supervisors and senior 
management.  Moreover,  the  AoA  and  any  changes  thereof  are  required  to  be 
registered with the State authorities. Contrary to the claim of the applicant, it was also 
found that the Chinese Contract Law makes clear reference to contracts for supply and 
use of energy and contains clear provisions on the content of such contracts. On this 
basis, the claims concerning criterion one were rejected. 

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(35)  As regards criterion two, the applicant provided documents alleging that shortcomings 
found in the accounts, in particular for a transaction between related companies, were 
corrected later in April 2008, and argued that criterion two was thus fulfilled.  

(36) 

In this respect, it is noted that any alleged remedy applied in 2008 cannot remedy the 
fact that the accounts of the applicant which were provided in the claim form were not 
reliable as indicated in recital (19) above. On this basis, this claim had to be rejected. 

(37)  As  regards  criterion  three,  the  applicant  claimed  that  the  capital  verification  report 
provided in its MET claim should be sufficient in itself to certify the evaluation of its 
assets. He also claimed that the tax rebates should not have been taken into account in 
the framework of the present anti-dumping investigation as this issue is relevant only 
for anti-subsidy investigations. 

(38) 

It is noted that the investigation found that the capital verification report was found to 
be  erroneous  and  thus  cannot  be  considered  as  a  reliable  independent  basis  for  the 
evaluation  of  the  assets.  Concerning  the  tax  rebates  obtained  by  the  applicant,  it  is 
considered  that  it  distorts  significantly  the  financial  situation  of  the  company  and 
indeed has an impact on the third MET criterion. Therefore, these claims concerning 
criterion three had to be rejected.  

(39)  On  the  basis  of  the  above,  the  Commission  maintained  its  findings  and  conclusions 
concerning  the  criteria  one  to  three.  It  is  thus  confirmed  that  the  applicant  and  the 
group in which it operates cannot be granted MET. 

2.3. 

Individual Treatment (IT) 

(40)  Further  to  Article  2(7)  of  the  basic  Regulation,  a  country-wide  duty,  if  any,  is 
established  for  countries  falling  under  that  article,  except  in  those  cases  where 
companies are able to demonstrate that they meet all criteria for individual treatment 
(IT)  set  out  in  Article  9(5)  of  the  basic  Regulation.  These  criteria  are  set  out  in  a 
summarised form below:  

–  in the case of wholly or partly foreign owned firms or joint ventures, exporters are 

free to repatriate capital and profits; 

–  export  prices  and  quantities,  and  conditions  and  terms  of  sale  are  freely 

determined; 

–  the majority of the shares belong to private persons, and it must be demonstrated 

that the company is sufficiently independent from State interference; 

–  exchange rate conversions are carried out at the market rate; 

–  State interference is not such as to permit circumvention of measures if individual 

exporters are given different rates of duty. 

(41)  The applicant, as  well as requesting  MET, also claimed IT in the event of not being 

granted MET.  

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(42)  As  explained  in  recital  (16)  above,  it  is  the  Commission's  consistent  practice  to 
examine whether a group of related companies, as a whole, fulfils the conditions for 
IT.  As  indicated  in  recital  (15),  there  was  one  additional  producer  and  one  exporter 
related  to  the  applicant  during  the  IP  which  did  not  cooperate  with  the  present 
investigation.  Thus,  no  conclusion  could  be  made  on  whether  these  two  companies 
fulfilled the criteria for IT.  

(43) 

It is therefore concluded that neither MET nor IT should be granted to the applicant. 

(44)  The applicant, the authorities of the exporting country and the interested parties were 
given an opportunity to comment on the above findings. Only the applicant submitted 
the comments below. 

(45)  The  applicant  first  reiterated  its  claim  that  the  investigation  on  both  MET  and  IT 
should  focus  only  on  producers  and  traders  of  the  product  concerned  during  the  IP, 
and alleged that the two companies which did not cooperate were not involved in the 
production  or  sale  of  the  product  concerned.  Then  it  further  argued  that  the 
Commission officials received all necessary information to assess IT for the two non 
cooperating companies while they were on-the-spot. 

(46)  On the first claim, it is noted that the exact activity of these two companies during the 
IP  could  not  be  checked  during  the  verification  visit  precisely  because  of  non-
cooperation, as mentioned in particular in recital (15) above. Therefore, the applicant 
did not demonstrate that the two non-cooperating companies had not produced or were 
not involved in the sale of the product concerned during the IP. It is also noted that, 
whatever  the  activity  of  the  producer  during  the  IP,  it  should  be  included  in  the 
assessment of the group for the reasons explained in particular in recital (16) above. It 
is  thus  maintained  that  these  two  companies  should  have  cooperated  in  the 
investigation.  

(47)  As mentioned in recital (24) to (27) above, the information provided during the on-the-
spot  visit  was  insufficient  to  make  an  assessment  concerning  IT  for  the  two  non-
cooperating companies. In addition, this information was not provided within the time 
limit  set  for  the  submission  of  the  IT  claim  and  was  provided  so  late  that  it  did  not 
allow its verification by the Commission. Therefore this claim had to be rejected. 

(48)  The applicant further submitted that the Commission's current practice to examine IT 
criteria is an infringement of Article 2.3 of the WTO Anti Dumping Agreement, since 
this agreement should be considered as an integral part of the EC legal order.  

(49)  However, given the non-cooperation from two related companies, IT criteria were not 
further examined in the present investigation, and the issue of their compatibility with 
WTO rules was thus irrelevant in the present case. Therefore this claim could not be 
further considered. 

(50)  Based on the above facts and considerations, it is thus confirmed that the applicant and 

the group in which it operates cannot be granted IT. 

3. 

CONCLUSION 

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(51)  The purpose of the present review was to determine the individual margin of dumping 
of  the  applicant,  which  was  allegedly  different  from  the  current  residual  margin 
applicable to imports of the product concerned from the PRC. The request was mainly 
based on the allegation that the applicant fulfilled the criteria for MET. 

(52)  As the investigation concluded in particular that, in the absence of cooperation from its 
related  producer  and  exporter,  the  applicant  was  granted  neither  MET  nor  IT,  the 
Commission  could  not  establish  that  the  applicant's  individual  dumping  margin  was 
indeed  different  from  the  residual  dumping  margin  established  in  the  original 
investigation. Therefore, the request made by the applicant should be rejected and the 
new  exporter  review  terminated.  The  residual  anti-dumping  duty  found  during  the 
original  investigation,  i.e.  39,9  %,  should  consequently  be  maintained  as  far  as  the 
applicant is concerned. 

4. 

RETROACTIVE LEVYING OF THE ANTI-DUMPING DUTY 

(53)  As the review has resulted in a determination of dumping in respect of the company, 
the  anti-dumping  duty  applicable  to  the  company  should  be  levied  retro-actively  on 
imports  of  the  product  concerned  which  have  been  made  subject  to  registration 
pursuant to Article 3 of Regulation (EC) No 1536/2007. 

5. 

DISCLOSURE AND DURATION OF THE MEASURES 

(54)  The  applicant  was  informed  of  the  essential  facts  and  considerations  on  the  basis  of 
which it was intended to impose a definitive anti-dumping duty on its imports into the 
Community and was given the opportunity to comment. 

(55)  This  review  does  not  affect  the  date  on  which  Regulation  (EC)  No  1659/2005  will 

expire pursuant to Article 11(2) of the basic Regulation. 

HAS ADOPTED THIS REGULATION: 

Article 1 

1. 

2. 

3. 

The  new  exporter  review  initiated  by  Regulation  (EC)  No  1536/2007  is  hereby 
terminated and the anti-dumping duty applicable according to Article 1 of Regulation 
(EC)  No  1659/2005  to  'all  other  companies'  in  the  People's  Republic  of  China  is 
hereby imposed on imports identified in Article 1 of Regulation (EC) No 1536/2007. 

The  anti-dumping  duty  applicable  according  to  Article  1  of  Regulation  (EC)  No 
1659/2005 to 'all other companies' in the People's Republic of China is hereby levied 
with  effect  from  22  December  2007  on  imports  of  certain  magnesia  bricks  which 
have been registered pursuant to Article 3 of Regulation (EC) No 1536/2007. 

The  customs  authorities  are  hereby  directed  to  cease  the  registration  of  imports 
carried out pursuant to Article 3 of Regulation (EC) No 1536/2007. 

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4. 

Unless  otherwise  specified,  the  provisions  in  force  concerning  customs  duties  shall 
apply. 

Article 2 

This  Regulation  shall  enter  into  force  on  the  day  following  that  of  its  publication  in  the 
Official Journal of the European Union. Article 1 paragraph 2 shall apply with effect from 22 
December 2007. 

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

Done at Brussels,  

For the Council 
The President 

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