Proposal for a COUNCIL REGULATION amending Implementing Regulation (EU) No 723/2011 (extending the definitive anti-dumping duty imposed by Council Regulation (EC) No 91/2009 on imports of certain iron or steel fasteners originating in the People's Republic of China to imports of certain iron or steel fasteners consigned from Malaysia, whether declared as originating in Malaysia or not), by granting an exemption from those measures to one Malaysian exporting producer and terminating the registration of imports from that exporting producer
Date: 2012-06-28
Institutions: European Commission
Subjects: China, Malaysia, anti-dumping measure, bolt and screw industry, import (EU), iron, originating product, steel

EUROPEAN COMMISSION 

Brussels, 28.6.2012  
COM(2012) 353 final 

2012/0170 (NLE) 

Proposal for a 

COUNCIL REGULATION 

amending Implementing Regulation (EU) No 723/2011 (extending the definitive anti-
dumping duty imposed by Council Regulation (EC) No 91/2009 on imports of certain 
iron or steel fasteners originating in the People's Republic of China to imports of certain 
iron or steel fasteners consigned from Malaysia, whether declared as originating in 
Malaysia or not), by granting an exemption from those measures to one Malaysian 
exporting producer and terminating the registration of imports from that exporting 
producer 

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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 Regulations (EC) No 1225/2009 of 
30 November 2009 on protection against dumped imports from countries not members 
of  the  European  Community  (‘the  basic  anti-dumping  Regulation’)  in  the  proceeding 
concerning  the  imposition  of  anti-dumping  duties  on  imports  of  certain  iron  or  steel 
fasteners  originating  in  China,  extended  to  imports  of  certain  iron  or  steel  fasteners 
consigned from Malaysia following a 'new exporter' review. 

•  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  91/2009  imposing  definitive  anti-dumping  duties  on 
imports of certain iron or steel fasteners originating in China, extended to imports of 
certain iron or steel fasteners consigned from Malaysia by Council Regulation (EU) No 
723/2011. 

•  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  already  had  the  possibility  to 
defend their interests during the investigation, in line with the provisions of the basic 
anti-dumping 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 anti-dumping Regulation. 

The basic anti-dumping 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 

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•  Summary of the proposed action 

On 15 November 2011, the Commission, following a request of a Malaysian exporter, 
initiated  a  'new  exporter'  review  of  Regulation  (EU)  No  723/2011  extending  the 
definitive  anti-dumping  duty  imposed  by  Council  Regulation  (EC)  No  91/2009  on 
imports of certain iron or steel fasteners originating in the People's Republic of China 
to imports of certain iron or steel fasteners consigned from Malaysia, whether declared 
as originating in Malaysia or not. 

The  attached  proposal  for  a  Council  Regulation  is  based  on  the  definitive  findings 
which showed that the Malaysian exporter did not export certain iron or steel fasteners 
to the EU during the original investigation period (October 2009 to September 2010) 
and  was  producing  certain  iron  or  steel  fasteners.  No  evidence  of  any  circumvention 
activities was found.  

It is therefore proposed that the Council adopt the attached proposal for a Regulation in 
order  to  grant  an  exemption  to  the  Malaysian  exporter  from  the  anti-dumping  duty 
applicable to imports of certain iron or steel fasteners consigned from Malaysia.  

•  Legal basis 

Council Regulations (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 above-mentioned basic anti-dumping 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. 

•  Choice of instruments 

Proposed instrument: Regulation. 

Other means would not be adequate for the following reason: 

Other  means  would  not  be  adequate  because  the  basic  anti-dumping  Regulation  does 
not provide for alternative options. 

4. 

BUDGETARY IMPLICATION 

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The proposal has no significant implication for the Union budget.  

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2012/0170 (NLE) 

Proposal for a 

COUNCIL REGULATION 

amending Implementing Regulation (EU) No 723/2011 (extending the definitive anti-
dumping duty imposed by Council Regulation (EC) No 91/2009 on imports of certain 
iron or steel fasteners originating in the People's Republic of China to imports of certain 
iron or steel fasteners consigned from Malaysia, whether declared as originating in 
Malaysia or not), by granting an exemption from those measures to one Malaysian 
exporting producer and terminating the registration of imports from that exporting 
producer 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty on the Functioning of the European Union, 

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 Articles 11(4) and 13(4) thereof,  

Having  regard  to  the  proposal  from  the  European  Commission  ('the  Commission')  after 
consulting the Advisory Committee, 

Whereas: 

A. EXISTING MEASURES  

(1) 

The  Council,  by  Regulation  (EC)  No  91/20092  imposed  anti-dumping  measures  on 
certain  iron  or  steel  fasteners  originating  in  the  People's  Republic  of  China.  By 
Regulation (EU) No 723/20113, the Council extended these measures to certain iron or 
steel fasteners consigned from Malaysia (‘the extended measures’) with the exception 
of imports produced by the Malaysian companies which are specifically mentioned in 
that Regulation.  

B. CURRENT INVESTIGATION  

1. Request for a review 

(2) 

The  Commission  received  a  request  for  an  exemption  from  the  extended  measures 
pursuant  to  Articles  11(4)  and  13(4)  of  the  basic  Regulation.  The  application  was 
lodged by Andfast Malaysia Sdn. Bhd. (‘Andfast’), a producer in Malaysia.  

2. Initiation of a review 

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OJ L 343, 22.12.2009, p. 51. 
OJ L 29, 31.1.2009, p. 1. 
OJ L 194, 26.7.2011, p. 6. 

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(3) 

(4) 

The  Commission  examined  the  evidence  submitted  by  Andfast  and  considered  it 
sufficient  to  justify  the  initiation  of  an  investigation  pursuant  to  Articles  11(4)  and 
13(4)  of  the  basic  Regulation  for  the  purposes  of  determining  the  possibility  of 
granting Andfast an exemption from the extended measures. After consultation of the 
Advisory  Committee,  and  after  the  Union  industry  concerned  had  been  given  the 
opportunity  to  comment,  the  Commission  initiated,  by  Regulation  (EU)  No 
1164/20114  ('the  initiating  Regulation'),  a  review  of  Regulation  (EU)  No  723/2011 
with regard to Andfast.  

The  Regulation  initiating  the  review  repealed  the  anti-dumping  duty  imposed  by 
Regulation  (EU)  No  723/2011  with  regard  to  imports  of  the  product  under 
examination  consigned  from  Malaysia  and  produced  by  Andfast.  Simultaneously, 
pursuant to Article 14(5) of the basic Regulation, customs authorities were directed to 
take appropriate steps to register such imports.  

3. Product concerned 

(5) 

The  product  concerned  is  certain  iron  or  steel  fasteners,  other  than  of  stainless  steel, 
i.e. wood screws (excluding coach screws), self-tapping screws, other screws and bolts 
with  heads  (whether  or  not  with  their  nuts  or  washers,  but  excluding  screws  turned 
from bars, rods, profiles or wire, of solid section, of a shank thickness not exceeding 6 
mm  and  excluding  screws  and  bolts  for  fixing  railway  track  construction  material), 
and washers, consigned from Malaysia, currently falling within CN codes ex 7318 12 
90, ex 7318 14 91, ex 7318 14 99, ex 7318 15 59, ex 7318 15 69, ex 7318 15 81, ex 
7318  15  89,  ex  7318  15  90,  ex  7318  21  00  and  ex  7318  22  00  ('the  product 
concerned').  

4. Investigation 

(6) 

(7) 

The Commission officially advised Andfast and the representatives of Malaysia of the 
initiation of the review. Interested parties were invited to make their views known and 
informed of the possibility to request a hearing. No such request was received.  

The Commission also sent a questionnaire to Andfast and received a reply within the 
relevant  deadline.  The  Commission  sought  and  verified  all  the  information  deemed 
necessary  for  the  purposes  of  the  review.  A  verification  visit  was  carried  out  at  the 
premises of Andfast.  

5. Investigation period 

(8) 

The investigation covered the period from 1 October 2010 to 30 September 2011 (‘the 
IP’). Data was collected from 2008 up to the end of the IP to investigate any change in 
the pattern of trade.  

C. RESULTS OF THE INVESTIGATION 

(9) 

The  investigation  confirmed  that  Andfast  was  not  related  to  any  of  the  Chinese  or 
Malaysian  exporters  or  producers  subject  to  the  anti-dumping  measures  and  had  not 
exported the product concerned to the European Union during the investigation period 
of  the  investigation  that  led  to  the  extended  measures,  i.e.  1  January  2008  to  30 

4 

OJ L 297, 16.11.2011, p. 53. 

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September  2010.  Andfast's  first  exports  of 
subsequently to the extension of measures to Malaysia.  

the  product  concerned  occurred 

(10)  The processing activities of Andfast can be considered as a completion and assembly 
operation in the sense of Article 13(2) of the basic Regulation. Andfast imports blanks 
from the People's Republic of China which are subsequently threaded, plated and put 
together  with  the  nuts  and  the  washers  at  its  premises  in  Malaysia.  The  finished 
product is sold and exported to its related company in the Union.  

(11)  This  is  not  considered  to  be  a  process  involving  circumvention  as  it  could  be 
demonstrated that the value added to the parts brought in from the People's Republic 
of  China,  during  the  assembly  and  completion  operation,  is  greater  than  25%  of  the 
manufacturing costs.  

(12)  No  evidence  was  found  that  Andfast  was  purchasing  the  finished  product  concerned 
from the People's Republic of China to resell or tranship to the European Union.  

D. AMENDMENT OF THE MEASURES BEING REVIEWED 

(13) 

In accordance with the above findings that Andfast has not engaged in circumvention 
practices, the company should be exempted from the anti-dumping measures in force.  

(14)  The registration of imports of certain iron or steel fasteners consigned from Malaysia 
by Andfast, as imposed by the initiating Regulation, should cease. In accordance with 
Article  14(5)  of  the  basic  Regulation,  which  provides  that  measures  shall  be  applied 
against registered imports from the date of registration, and in view of the exemption 
of the company from measures, no anti-dumping duty should be collected on imports 
of  certain  iron  or  steel  fasteners  consigned  from  Malaysia  by  Andfast  which  entered 
the Union under registration imposed by the initiating Regulation.  

(15)  The exemption from the extended measures granted to imports of certain iron or steel 
fasteners  produced  by  Andfast  shall,  in  accordance  with  Article  13(4)  of  the  basic 
Regulation,  remain  valid  on  condition  that  the facts  as  finally  ascertained  justify  the 
exemption and that it is not, for instance, established that the exemption was granted 
on the basis of false or misleading information submitted by the company concerned. 
Should prima facie evidence indicate otherwise, or should exports from Andfast to the 
European  Union  increase  dramatically,  an  investigation  may  be  initiated  by  the 
Commission to establish whether withdrawal of the exemption is warranted.  

(16)  The exemption from the extended measures granted to imports of certain iron or steel 
fasteners  produced  by  Andfast  was  established  on  the  basis  of  the  findings  of  the 
present  review.  This  exemption  is  thus  exclusively  applicable  to  imports  of  certain 
iron  or  steel  fasteners  consigned  from  Malaysia  and  produced  by  that  specific  legal 
entity.  Imported  iron  or  steel  fasteners,  produced  by  any  company  not  specifically 
mentioned  in  Article  1(1)  of  Regulation  (EU)  No  723/2011  with  its  name,  including 
entities  related  to  those  specifically  mentioned,  shall  not  benefit  from  the  exemption 
and should be subject to the residual duty rate as imposed by that Regulation. 

(17) 

It  is  considered  that  special  measures  are  needed  in  this  case  in  order  to  ensure  the 
proper application of such exemptions. These special measures are the requirement of 
the presentation to the customs authorities of the Member States of a valid commercial 
invoice, which shall conform to the requirements set out in the Annex to Regulation 

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(EU) No 723/2011. Imports not accompanied by such an invoice shall be made subject 
to the extended anti-dumping duty. 

E. PROCEDURE 

(18)  Andfast and all other interested parties were informed of the facts and considerations 
on  the  basis  of  which  it  was  intended  to  grant  an  exemption  to  Andfast  from  the 
extended measures. No comments were received,  

HAS ADOPTED THIS REGULATION: 

Article 1 

Article  1(1)  of  Regulation  (EU)  No  723/2011  shall  be  modified  by  adding  the  following 
company to the list of companies that produce certain iron or steel fasteners in Malaysia and 
whose  imports  of  certain  iron  or  steel  fasteners  are  exempted  from  the  application  of  the 
extended definitive residual anti-dumping duty:  

Andfast Malaysia Sdn. Bhd. (TARIC additional code B265). 

Article 2 

The  customs  authorities  are  hereby  directed  to  cease  the  registration  of  imports  carried  out 
pursuant to Article 3 of Commission Regulation (EU) No 1164/2011. No anti-dumping duty 
shall be collected on the imports thus registered.  

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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