Proposal for a COUNCIL REGULATION amending Regulation (EC) No 954/2006 imposing a definitive anti-dumping duty on imports certain seamless pipes and tubes, of iron or steel originating in Croatia, Romania, Russia and Ukraine
Date: 2012-05-22
Institutions: European Commission
Subjects: Croatia, Romania, Russia, Ukraine, anti-dumping duty, import (EU), iron, originating product, steel, tube

EUROPEAN COMMISSION 

Brussels, 22.5.2012  
COM(2012) 224 final 

2012/0112 (NLE) 

Proposal for a 

COUNCIL REGULATION 

amending Regulation (EC) No 954/2006 imposing a definitive anti-dumping duty on 
imports certain seamless pipes and tubes, of iron or steel originating in Croatia, 
Romania, Russia and Ukraine 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL  

Grounds for and objectives of the proposal  

This  proposal  concerns  the  implementation  of  the  Court  of  Justice  of  the  European  Union 
judgment in joined cases C-191/09 P and C-200/09 P, Council of the European Union versus 
Interpipe Nikopolsky Seamless Tube Plant Niko Tube ZAT and Interpipe Nizhnedneprovsky 
Tube  Rolling  Plant  VAT  ('Interpipe').  By  the  judgment  the  Court  of  Justice  upheld  the 
General Court's judgment in case T-249/06, by which Article 1 of Council Regulation (EC) 
No 954/2006 was annulled, insofar as the anti-dumping duty fixed for exports to the European 
Union by Interpipe had been established on the basis of export prices that had been adjusted 
for commissions for sales via an affiliated trader.  

General context 

This proposal is made in the context of Article 266 of the Treaty on the Functioning of the 
European Union according to which the institutions of the European Union whose act has 
been declared void shall be required to take the necessary measures to comply with the 
judgment of the Court of Justice.  

Existing provisions in the area of the proposal 

Council  Regulation  (EC)  No  954/2006  imposing  a  definitive  anti-dumping  duty  on  imports 
certain seamless pipes and tubes, of iron or steel originating in Croatia, Romania, Russia and 
Ukraine. 

Consistency with the 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 implementation have already had the possibility to defend 
their  interests  during  disclosure,  in  line  with  the  provisions  of  Council  Regulation  (EC)  No 
1225/2009  on  protection  against  dumped  imports  from  countries  not  members  of  the 
European Community (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 judgment of the Court of Justice of the 
European Union in joined case C-191/09P and C-200/09 P concerning the interpretation of the 
basic Regulation. 

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

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

Summary of the proposed action 

The  Council,  by  Regulation  (EC)  No  954/2006,  imposed  definitive  anti-dumping  duty  on 
imports of certain seamless pipes and tubes, of iron or steel originating in Croatia, Romania, 
Russia and Ukraine.  

The applicants, the Interpipe group, contested Regulation (EC) No 954/2006, inter alia, with 
regard to the calculation of their individual duty rate before the Court of First Instance (CFI). 
By its judgment of 10 March 2009 CFI annulled Article 1 of Regulation (EC) No 954/2006 in 
so far as the anti-dumping duty fixed for exports by the applicants exceeds that which would 
have been applicable had the export price not been adjusted for a commission when sales took 
place through Sepco (a sales company related to the applicants). Following the appeals by the 
Council and the Commission and the cross-appeal by the applicants, the Court of Justice of 
the  European  Union  has  given  its  final  ruling  in  its  judgment  of  16  February  2012  ('the 
Judgment')  by  rejecting  both  the  appeals  and  the  cross-appeal  and  hence  confirming  the 
judgment of the CFI (now the General Court).  

In  order  to  implement  the  Judgment,  the  duty  rate  for  the  Interpipe  group  was  recalculated 
which resulted in a different anti-dumping duty rate. 

It  is  therefore  proposed  that  the  Council  adopt  the  attached  proposal  for  a  Regulation 
amending Regulation (EC) No 954/2006. 

Legal basis 

Article 266 of the Treaty on the Functioning of the European Union. 

Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped 
imports from countries not members of the European Community. 

Subsidiarity principle 

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

Proportionality principle 

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

The form of action is described in the aforementioned basic Regulation and leaves no scope 
for national decision.  

Indication  of  how  financial  and  administrative  burden  falling  upon  the  Union,  national 
governments, regional and local authorities, economic operators and citizens is minimized and 
proportionate to the objective of the proposal is not applicable. 

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Choice of instruments 

Proposed instruments: regulation. 

Other means would not be adequate for the following reason(s): 

The aforementioned basic Regulation does not provide for alternative options. 

4. 

BUDGETARY IMPLICATION 

The proposal has implications for the Union budget. The amended anti-dumping duty will be 
applicable retroactively resulting in the refund of the difference in duties collected based on 
the  original  duty  rate  and  the  amended  duty  rate.  The  final  impact  on  the  budget  has  been 
estimated at 3.5 million EUR, see attached legislative financial statement.  

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2012/0112 (NLE) 

Proposal for a 

COUNCIL REGULATION 

amending Regulation (EC) No 954/2006 imposing a definitive anti-dumping duty on 
imports certain seamless pipes and tubes, of iron or steel originating in Croatia, 
Romania, Russia and Ukraine 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 266 thereof,  

Having regard to Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection 
against dumped imports from countries not members of the European Community1 ('the basic 
Regulation'), and in particular Article 9(4) thereof, 

Having  regard  to  the  proposal  submitted  by  the  European  Commission  ('the  Commission') 
after having consulted the Advisory Committee, 

Whereas: 

A. PROCEDURE 

(1) 

(2) 

In March 2005, the Commission initiated an investigation2 with regards to imports of 
certain  seamless  pipes  and  tubes  ('SPT')  originating,  inter  alia,  in  Ukraine  ('original 
investigation'). In June 2006 definitive anti-dumping duties were imposed by Council 
Regulation  (EC)  No  954/20063,  as  last  amended  by  Council  Regulation  (EC)  No 
812/20084. In addition, on 30 November 2007, the Commission published a Notice in 
the Official Journal of the European Union, reflecting a name change of two Ukrainian 
exporting producers.5 

On  8  September  2006,  Interpipe  Nikopolsky  Seamless  Tubes  Plant  Niko  Tube  and 
Interpipe Nizhnedneprovsky Tube Rolling Plant ('Interpipe  group' or 'the applicants') 
lodged  a  request6  before  the  Court  of  First  Instance  of  the  European  Communities 
('CFI') to annul Council Regulation (EC) No 954/2006 as far as it affects them.  

(3)  With  regard  to  CJSC  Nikopolosky  Seamless  Tubes  Plant  Niko  Tube  and  OJSC 
Nizhnedneprovsky Tube Rolling Plant (NTRP) it is recalled that their company names 

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OJ L 343, 22.12.2009, p. 51. 
OJ C 77, 31.3.2005, p. 2. 
OJ L 175, 29.6.2006, p. 4. 
OJ L 220, 15.8.2008, p. 1. 
OJ C 288, 30.11.2007, p. 34. 
OJ C 261, 28.10.2006, p. 28. 

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changed in February 2007 to CJSC Interpipe Nikopolsky Seamless Tubes Plant Niko 
Tube  and  OJSC  Interpipe  Nizhnedneprovsky  Tube  Rolling  Plant,  respectively.7 
Subsequently, CJSC Interpipe Nikopolsky Seamless Tubes Plant Niko Tube has been 
discontinued as a legal entity and all its property and non-property rights and liabilities 
was  taken  over  by  LLC  Interpipe  Niko  Tube,  which  was  established  in  December 
2007.  

By its judgment of 10 March 20098, the CFI annulled Article 1 of Council Regulation 
(EC)  No  954/2006  in  so  far  as  the  anti-dumping  duty  fixed  for  exports  by  the 
applicants  exceeds  that  which  would  have  been  applicable  had  the  export  price  not 
been  adjusted  for  a  commission  when  sales  took  place  through  the  related  trading 
company. 

The  Council  of  the  European  Union  and  the  Commission,  as  well  as  the  applicants, 
lodged  appeals  requesting  the  Court  of  Justice  of  the  European  Union  ('ECJ')  to  set 
aside  the  CFI  judgment  of  10  March  2009.  On  16  February  2012,  the  ECJ  dimissed 
both  the  appeals  and  the  cross-appeal  ('the  Judgment')9  and  thus  confirmed  the  CFI 
(now the General Court) judgment of 10 March 2009.  

Article 1 of Council Regulation (EC) No 954/2006 was consequently annulled to the 
extent to which the anti-dumping duty imposed on exports into the European Union of 
goods  produced  and  exported  by  the  Interpipe  group  exceeded  that  which  would  be 
applicable  if  export  price  not  been  adjusted  for  a  commission  when  sales  took  place 
through the related trading company. 

It is recognised by the Courts10 that, in cases where a proceeding consists of several 
steps, the annulment of one of these steps does not annul the complete proceeding. The 
is  an  example  of  such  a  multi-step  proceeding. 
anti-dumping  proceeding 
Consequently, the annulment of parts of the definitive anti-dumping Regulation does 
not imply the annulment of the entire procedure prior to the adoption of the Regulation 
in  question.  On  the  other  hand,  according  to  Article  266  of  the  Treaty  on  the 
Functioning of the European Union, the Union institutions are obliged to comply with 
the  Judgment  of  the  Courts  of  the  European  Union.  Accordingly,  the  Union 
Institutions,  in  so  complying  with  the  Judgment,  have  the  possibility  to  remedy  the 
aspects  of  the  contested  Regulation  which  led  to  its  annulment,  while  leaving 
unchanged the uncontested parts which are not affected by the Judgment11.  

This  Regulation  seeks  to  correct  the  aspects  of  the  Council  Regulation  (EC)  No 
954/2006 found to be inconsistent with the basic Regulation, and which thus led to the 
annulment of parts of that Regulation. All other findings made in Council Regulation 
(EC) No 954/2006 remain valid.  

Therefore,  in  accordance  with  Article  266  of  the  Treaty  on  the  Functioning  of  the 
European Union, the anti-dumping duty rate for the Interpipe group was re-calculated 
on the basis of the Judgment .  

OJ C 288, 30.11.2007, p. 34. 
Case T-249/06 - Interpipe Niko Tube and Interpipe NTRP v Council [2009] II-00383 
OJ C 98, 31.03.2012, p. 2. 
Case T-2/95 Industrie des poudres sphériques (IPS) v Council [1998] ECR II-3939. 
Case C-458/98 P IPS v Council [2000] ECR I-08147. 

(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

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B. NEW ASSESSMENT OF THE FINDINGS BASED ON THE JUDGMENT OF THE 
COURT OF JUSTICE 

(10) 

In this Regulation, the aspect of the Judgment that is addressed is the calculation of the 
dumping  margin,  more  specifically  the  calculation  of  the  adjustment  made  to  the 
export price for differences in commissions in accordance with Article 2(10)(i) of the 
basic Regulation.  

(11)  As outlined in recitals (131) and (134) of the Council Regulation (EC) No 954/2006, 
the export price was adjusted for commissions pursuant to Article 2(10)(i) of the basic 
Regulation for sales made via the related trading company. 

(12)  The  CFI  in  its  Judgment  found,  and  the  ECJ  later  confirmed,  that  the  Union 
Institutions in comparing the normal value and the export price, should not have made 
an adjustment for commissions in this particular case. 

(13)  Therefore,  the  dumping  margin  was  re-calculated  without  adjusting  the  export  price 

for differences in commissions. 

(14)  The  comparison  of  the  thus  re-calculated  weighted  average  export  price  with  the 
weighted average normal value as found during the original investigation by product 
type  on  an  ex-factory  basis  showed  the  existence  of  dumping.  The  dumping  margin 
established,  expressed  as  a  percentage  of  the  CIF  import  price  at  the  Union  frontier, 
duty unpaid is 17,7%. 

C. DISCLOSURE 

(15)  All interested parties concerned by the implementation of the Judgment were informed 
of  the  proposal  to  revise  the  rates  of  anti-dumping  duty  applicable  to  the  Interpipe 
group. They were also granted a period within which they could make representations 
subsequent  to  this  disclosure  in  accordance  with  the  provisions  of  the  basic 
Regulation. 

D. CONCLUSION 

(16)  On  the  basis  of  the  above  the  duty  rate  applicable  to  the  Interpipe  group  should  be 
amended accordingly. The amended rate should also apply retroactively from the date 
that Regulation (EC) No 954/2006 came into effect, in the following sense: repayment 
or remission must be requested from national customs authorities in accordance with 
applicable customs legislation. For instance, if that repayment or remission is asked on 
the  basis  of  article  236(2)  of  Council  Regulation  (EEC)  2913/92  establishing  the 
Community  Customs  Code  it  must,  in  principle,  only  be  granted  if  the  request  was 
made  by  a  submission  of  an  application  to  the  appropriate  customs  office  within  a 
period  of  three  years  from  the  date  on  which  the  amount  of  those  duties  was 
communicated to the debtor. (For example, if the duty was collected shortly after the 
entry into force of Regulation (EC) No 954/2006, and the request for reimbursement 
was  made  within  three  years  from  the  date  on  which  the  amount  of  duties  was 
communicated to the debtor, normally, the request should be granted, provided that it 
also fulfills all other requirements). 

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HAS ADOPTED THIS REGULATION: 

Article 1 

The entry concerning CJSC Interpipe Nikopolsky Seamless Tubes Plant Niko Tube and OJSC 
Interpipe Nizhnedneprovsky Tube Rolling Plant, in the table in Article 1 of Regulation (EC) 
No 954/2006, shall be replaced by the following: 

Company  

LLC Interpipe Niko Tube and OJSC 
Interpipe Nizhnedneprovsky Tube Rolling 
Plant (Interpipe NTRP)  

Anti-dumping 
duty 

TARIC additional 
code 

17,7% 

A743 

On the basis of the above the duty rate applicable to the Interpipe group should be amended 
accordingly. Repayment or remission must be requested from national customs authorities in 
accordance with applicable customs legislation.  

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 3 

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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LEGISLATIVE FINANCIAL STATEMENT FOR PROPOSALS HAVING A 
BUDGETARY IMPACT EXCLUSIVELY LIMITED TO THE REVENUE SIDE 

1. 

NAME OF THE PROPOSAL: 

Council  Regulation  amending  Regulation  (EC)  No  954/2006  imposing  a  definitive 
anti-dumping  duty  on  imports  certain  seamless  pipes  and  tubes,  of  iron  or  steel 
originating in Croatia, Romania, Russia and Ukraine. 

2. 

BUDGET LINES: 

Chapter and Article: 120 

Amount budgeted for the year concerned: 19.171.200.000 EUR 

3. 

FINANCIAL IMPACT  

Proposal  has  no  financial  impact  on  expenditure  but  has  a  financial  impact  on 
revenue – the effect is as follows: 

(€ million to one decimal place)  

Budget line 

Revenue12 

Article 120 

Impact on own resources 

2012 

-2.6 

2013 

0 

4. 

ANTI-FRAUD MEASURES 

Not applicable 

5. 

OTHER REMARKS 

The Court of First Instance partially annulled Article 1 of Council Regulation (EC) 
No 954/2006 insofar as it concerned the Interpipe group ("the applicants", i.e. CJSC 
Interpipe  Nikopolsky  Seamless  Tubes  Plant  Niko  Tube  and  OJSC  Interpipe 
Nizhnedneprovsky Tube Rolling Plant). Following the appeal by the Council and the 
Commission  and  the  cross-appeal  by  the  applicants,  the  European  Court  of  Justice 
has given its final ruling in its judgment of 16 February 2012 by rejecting both the 
appeals and the cross-appeal and hence confirming the judgment of the CFI (now the 
General  Court).  As  a  result,  the  definitive  anti-dumping  duty  for  the  applicants 
decreases  from  25,1%  to  17,7%.  The  new  duty  rates  should,  in  line  with  the  court 

12 

Regarding  traditional  own  resources  (agricultural  duties,  sugar  levies,  customs  duties)  the  amounts 
indicated must be net amounts, i.e. gross amounts after deduction of 25 % of collection costs 

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judgment,  be  applied  retroactively  from  the  date  of  entry  into  force  of  the  anti-
dumping duty, i.e. 30 June 2006. 

The  amount  of  duties  that  were  paid  since  the  imposition  of  the  anti-dumping 
measures  until  the  end  of  February  2012  have  been  estimated  on  the  basis  of 
information extracted from imports statistics database. 

It  appears,  therefore,  that  the  amounts  eligible  for  reimbursement  would  be 
approximately  3.5  million  EUR.  The  reimbursement  should  be  requested  from 
national  customs  authorities  in  accordance  with  the  applicable  Union  customs 
legislation  thus  the  actual  amount  will  be  dependent  on  the  amounts  claimed  by 
importers. 

Based on the above, the final impact on the revenue side of the budget is 2.6 million 
EUR, i.e. the eligible amount minus the 25% collection costs. 

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