CELEX: 52013PC0070
Language: en
Date: 2013-02-12
Title: Proposal for a COUNCIL IMPLEMENTING REGULATION  imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain aluminium foils in rolls originating in the People’s Republic of China

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		52013PC0070
		
			Proposal for a COUNCIL IMPLEMENTING REGULATION  imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain aluminium foils in rolls originating in the People’s Republic of China /* COM/2013/070 final - 2013/0044 (NLE) */
			
				
		
		
			
			   	EXPLANATORY
MEMORANDUM
1.           CONTEXT
OF THE PROPOSAL
Grounds for and objectives of the
proposal
This proposal concerns the application of
Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against
dumped imports from countries not members of the European Community ('the basic
Regulation') in the anti-dumping proceeding concerning imports of certain
aluminium foils in rolls originating in the People's Republic of China.
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
Provisional measures were imposed by
Commission Regulation (EU) No 833/2012 (OJ L 251, 18.9.2012, p.
29.).
Consistency with other policies and
objectives of the Union
Not applicable.
2.           RESULTS
OF CONSULTATIONS WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS
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 contain
provisions 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
On 20 December 2011 the Commission
initiated an anti-dumping proceeding concerning imports of certain aluminium
foils in rolls originating in the
People's Republic of China.
The Commission imposed provisional
anti-dumping duties on these imports by Regulation (EU) No 833/2012 of 17 September 2012.
The attached proposal for a Council
Regulation is based on the definitive findings which have confirmed the
existence of dumping causing injury, and the fact that the imposition of
measures is not against the overall Union interest. Although the final duty
rates have been slightly revised, the provisional findings were confirmed.
It is therefore proposed that the Council
adopt the attached proposal for a Regulation which should be published no later
than 15 March 2013.
Legal basis
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 European 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 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 instruments: regulation.
Other means would not be adequate for the
following reason:
Other means would not be adequate because
the basic Regulation does not provide for alternative options.
4.           BUDGETARY
IMPLICATION
The proposal has no implication for the
Union budget.
2013/0044 (NLE)
Proposal for a
COUNCIL IMPLEMENTING REGULATION 
imposing a
definitive anti-dumping duty and collecting definitively the provisional duty
imposed on imports of certain aluminium foils in rolls originating in the
People’s Republic of China
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
Community[1]('the
basic Regulation'), and in particular
Article 9,
Having regard to the proposal submitted by
the European Commission ('the Commission') after having consulted the Advisory
Committee,
Whereas:
1.           PROCEDURE
1.1.        PROVISIONAL
MEASURES
(1)       The Commission, by
Regulation (EU) No 833/2012[2]
(‘the provisional Regulation’) imposed a provisional anti-dumping duty ('the
provisional measures') on imports of certain aluminium foils in rolls originating
in the People's Republic of China ('PRC').
(2)       It is recalled that the
proceeding was initiated following a complaint lodged on 9
November 2011 by the European association of Metals (Eurométaux)
('the complainant') on behalf of producers representing
more than 50% of the total Union production of certain aluminium foil in
rolls. The complaint contained prima facie evidence of dumping of the said
product and of material injury resulting therefrom, which was considered
sufficient to justify the initiation of a proceeding. As set out in recital
(17) of the provisional Regulation, the investigation of dumping and injury
covered the period from 1 October 2010 to 30 September 2011 (the ‘investigation
period’ or ‘IP’). The examination of trends relevant for the assessment of
injury covered the period from January 2008 to the end of the IP (‘the period
considered’).
1.2.        SUBSEQUENT
PROCEDURE
(3)       Subsequent
to the disclosure of the essential facts and considerations on the basis of
which it was decided to impose provisional anti-dumping measures ('the
provisional disclosure'), several interested parties made written submissions
making known their views on the provisional findings. The parties who so
requested were granted the opportunity to be heard. In particular, one exporting
producer requested and was afforded hearings in the presence of the Hearing
Officer of the Directorate-General for Trade. 
(4)       The Commission continued
to seek and verify all information it deemed necessary for its definitive
findings.
(5)       Following the publication
of the provisional Regulation, three of the cooperating Chinese exporting
producers stated that their names were incorrectly spelt in Article 1(2) of
that regulation. Accordingly, a corrigendum to the provisional Regulation was published
in the Official Journal of the European Union[3],
in which the correct names of these companies were set out.
2.           PRODUCT
CONCERNED AND LIKE PRODUCT
(6)       The product concerned is aluminium
foil of a thickness of 0,007 mm or more but less than 0,021 mm, not backed, not
further worked than rolled but whether or not embossed, in low weight rolls of
a weight not exceeding 10 kg (‘the product concerned’ or 'aluminium foil in
rolls' or 'AHF'). The product concerned currently falls within CN codes ex 7607
11 11 and ex 7607 19 10. 
(7)       The
product concerned is generally used as a consumer product for packaging and
other household/catering applications. The product
definition was not contested. 
(8)       The investigation has
shown that aluminium foil in rolls produced in and exported from the PRC,
aluminium foil in rolls produced and sold in the Union by the Union producers
and aluminium foil in rolls produced and sold in Turkey (the analogue country) by
the cooperating Turkish producer have the same basic physical and technical
characteristics as well as the same basic uses and are therefore considered to
be alike within the meaning of Article 1(4) of the basic Regulation. 
(9)       In the absence of any comments
regarding the product concerned and the like product, recitals (18) to (20) of
the provisional Regulation are hereby confirmed. 
3.           SAMPLING
(10)     In the absence of any
comments on sampling, recitals (21) to (26) of the provisional Regulation are hereby
confirmed.
4.           DUMPING
4.1.        Market
economy treatment (MET)
(11)     After
the provisional disclosure, comments were received from CeDo (Shanghai) Ltd. (‘CeDo’) concerning the findings in
regard to criterion 3. The company in its comments and during a hearing with
the Hearing Officer, contested the finding that its decisions on obtaining
financing from abroad were subject to approval of the State and thus created a
distortion in its financial situation. CeDo claimed that the Chinese 'Rules for
the Implementation of Registration of External Debts' did not have a distortive
effect on its financial situation as its loan concerned an intra-group loan
from a related company outside China and was based solely on intra-group
financial considerations. The company further claimed that the approval to
transfer interest and principal was automatically granted. 
(12)     Having re-examined further
the additional information provided by the company and the arguments put
forward following the provisional disclosure, it was considered that, despite
the existence of loan registration and repayment approval requirements, it
could be established in this particular case of an intra-group loan that the
financial situation of the company was not subject to significant distortions
given that the company was found to have repaid the interest and principal sum
in line with the terms of the loan agreement. In these circumstances, the
company is found to meet criterion 3. 
(13)     In the absence of any other
comments concerning MET, recitals (27) to (53) of the provisional Regulation
are, subject to the above modification, hereby confirmed.
4.2.        Individual
treatment (IT)
(14)     In the absence of any
comments on IT, recitals (54) to (56) of the provisional Regulation are hereby
confirmed.
4.3.        Analogue
country
(15)     No party disputed the
selection of Turkey as an analogue country for the definitive determination.
(16)     In the absence of any
comments concerning the selection of the analogue country, recitals (57) to
(64) of the provisional Regulation are hereby confirmed.
4.4.        Normal
value
(17)     It is recalled that the
normal value was calculated on the basis of the data provided by the sole
cooperating producer in the analogue country (i.e. Turkey). Thus, normal value
was established on the basis of prices of domestic sales and constructed normal
value of one Turkish producer of the like product. 
(18)     The company Ningbo Favored
Commodity Co., Ltd ('Ningbo Favored') questioned how the data of a single
Turkish producer could be sufficiently representative to establish a dumping
margin for the entirety of all Chinese exporting producers, and considered
surprising that the domestic prices in Turkey were significantly higher than in
the Union. In regard to the Turkish market for aluminium foil, as mentioned in
recital (63) of the provisional Regulation, Turkey was considered a suitable
analogue country based on volumes and values of domestic production, import and
export. In regard to the fact that the prices on the Turkish market are higher
than in the Union, this is not a decisive factor in selecting a suitable
analogue country market. In any event, the price difference can be partly
explained by the fact that the Union industry was close to breakeven during the
IP. If the Union industry is put in a position whereby it can achieve a
reasonable profit (i.e. 5% as mentioned in recital (158) of the provisional
Regulation), the price gap between Turkish prices and prices on the Union market
will narrow.
(19)     Ningbo Favored also
submitted that the institutions did not provide sufficient information on the
constructed normal value. 
(20)     In
this respect it is noted that, as explained under recital (70), the Commission
provided to the party all relevant information concerning the data used to
calculate normal value that could be released without infringing the provisions
of Article 19 of the basic Regulation, i.e. assuring at the same time that any
confidential data provided by the sole Turkish producer is treated as such and
is not disclosed to other parties. The information provided to the exporting
producer was meaningful and offered it the possibility to understand the
methodology used in line with the provisions of Article 2 of the basic
Regulation. In addition, during a hearing which
took place at the request of Ningbo Favored, the company was informed that for
the purpose of the dumping calculation full product control numbers (PCNs) had
been used and that in situations where the Turkish producer did not sell the
exact same product type, the normal value was established by adjusting the
closest PCN sold by the Turkish producer. Finally, Ningbo Favored and the other
sampled Chinese exporters were provided with additional information regarding
the establishment of the constructed normal value at the time the disclosure of
the final findings was made. The above claims therefore had to be rejected.
(21)     In the absence of any other
comments, recitals (65) to (72) of the provisional Regulation are hereby
confirmed.
4.5.        Export
price
(22)     Ningbo Favored requested
that the values of the export sales in the transaction-by-transaction listing
should be converted from US dollars into Chinese currency using the monthly
exchange rate supplied in the questionnaire, rather than the actual exchange
rate at the time of the various transactions. In this respect, in accordance
with Article 2(10)(j) 'currency conversions' of the basic Regulation,
when the price comparison requires a conversion of currencies, such conversion
shall be made using the rate of exchange on the date of sale. It is also noted
that, the instructions to the questionnaire provide explicitly that the amounts
to be used are those in the accounting currency as booked in the accounting
records of the respondent. The company had thus been duly informed of the
exchange rate to be used. This claim could therefore not be accepted.
(23)     Following
the imposition of the provisional measures, an additional verification visit
was carried out at the premises of one of the unrelated importers for whom the
profit mentioned in recital (75) of the provisional Regulation was established.
As a result, the profit margin used in constructing the export prices under
Article 2(9) of the basic Regulation decreased. 
(24)     In the absence of any other
comments, recitals (73) to (75) of the provisional Regulation, subject to the
above modification, are hereby confirmed.
4.6.        Comparison
(25)     No pertinent comments were
received with respect to the comparison. In the absence of any other comments,
recitals (76) to (78) of the provisional Regulation are hereby confirmed.
4.7.        Dumping
margins
(26)     No pertinent comments with
respect to the dumping margins were submitted. In the absence of any other
comments, recitals (79) to (81) of the provisional Regulation are hereby
confirmed. 
(27)     As a result of the revision
of the unrelated importers' profit as mentioned in recital (23) above, as well
as following the correction of some clerical errors, the definitive dumping
margins, expressed as a percentage of the CIF Union frontier price, duty
unpaid, are as follows:
 Company Name || Dumping margin 
 CeDo (Shanghai) Ltd. || 37.4% 
 Ningbo Favored Commodity Co., Ltd. || 30.6% 
 Ningbo Times Aluminium Foil Technology Co., Ltd. || 32.9% 
 Other co-operating companies || 34.9% 
 Countrywide dumping margin || 45.6% 
(28)     On the basis of the facts
stated in recital (81) of the provisional Regulation, the country-wide definitive
dumping margin for the PRC was established using the most dumped transactions of
the cooperating exporters. On this basis, the definitive dumping margin was
found to be 45.6%.
5.           INJURY
5.1.        Union production
and Union Industry
(29)     In the absence of comments
on Union production and Union industry, recital (83) of the provisional
Regulation is hereby confirmed. 
5.2.        Union
consumption
(30)     In the absence of comments on
Union consumption, recitals (84) to (86) of the provisional Regulation are
hereby confirmed. 
5.3.        Imports
into the Union from the PRC
5.3.1.     Volume and market share
(31)     In the absence of comments
on the level of imports into the Union from the PRC and market share, recitals
(87) to (89) of the provisional Regulation are hereby confirmed.
5.3.2.     Prices of dumped imports and
price undercutting
(32)     As
duly explained in recital (47) below, after analysis of the comments received
following provisional disclosure, it was found appropriate not to apply a level
of trade adjustment for the comparison between prices of the product concerned
and aluminium foil produced by Union industry. This change of method slightly
affected the undercutting margins. 
(33)     Furthermore,
the undercutting margin of the CeDo group was reduced by the revision of the
unrelated importers' profit margin (see recital (23)). However, the weighted
average undercutting margin of the sampled exporting producers remains above
7%. 
(34)     With the exception of the
above changes and in the absence of any other comment concerning prices of
dumped imports and price undercutting, the methodology described in recital
(90) to (94) of the provisional Regulation to establish price undercutting is
hereby confirmed.
5.4.        Economic situation of the
Union industry and the representative Union producers
5.4.1.     Preliminary remarks and data
relating to the Union industry 
(35)     In the absence of any
comments in this regard, the provisional findings set out in recitals (95) to
(107) of the provisional Regulation are hereby confirmed. 
5.4.2.     Magnitude of the actual
dumping margin
(36)     In the absence of comments
in this regard, recital (108) of the provisional Regulation is hereby
confirmed.
5.5.        Conclusion on injury
(37)     Based on the above, the
provisional findings set out in recitals (109) to (112) of the provisional
Regulation are hereby confirmed. 
6.           CAUSALITY
(38)     The Commission received no comments
on the provisional findings concerning the causal link between dumping and
injury. It is consequently confirmed that the dumped imports from the PRC
caused material injury to the Union industry within the meaning of Article 3(6)
of the basic Regulation and that there are no other known factors which are as such
as to break the causal link between the dumped imports from the PRC and the
injury suffered by the Union industry. Therefore, the conclusions as set out in
recitals (113) to (136) of the provisional Regulation are hereby confirmed.
7.           UNION
INTEREST
7.1.        Union industry
(39)     In the absence of any
comments with regard to the interest of the Union industry, recitals (138) to
(142) of the provisional Regulation are hereby confirmed. 
7.2.        Importers/wholesalers
(40)     Co-operation
from the importing sector was very low and, as already mentioned in recital
(146) of the provisional Regulation, only two importers had submitted a
questionnaire reply. As mentioned at recital (23) after the imposition of
provisional measures, the largest importer (Robinson Young, UK) was visited to verify its questionnaire
response. The verification resulted in a correction of the reported profitability of this company on its relevant
activities. As a consequence, the weighted average profit margin of the two
cooperating sampled importers went down. However,
the reduction in profit of the co-operating importers was not considered to be
significant in terms of the Union interest analysis because both profit rates
(before and after the correction) were moderate.
(41)     One of the sampled
importers contested the preliminary conclusion summarized in recital (148) of
the provisional Regulation that the impact of the measures on the importing
sector as a whole would not be disproportionate as it could be forced to exit
the market if the measures would be confirmed. However, in the provisional
Regulation it was indeed concluded that the Union industry might win back some
contracts to the detriment of the importing sector. However, there is no doubt
that imports of the product concerned will continue to serve the Union market,
albeit now on the basis of fair competition and, therefore, possibly on a
smaller scale. In view of that, it is confirmed that the overall impact on the
importing sector is not disproportionate.
(42)     No further comments or
information were received regarding the interests of importers or wholesalers. Therefore
the provisional findings in recitals (143) to (149) of the provisional
Regulation on the interest of these groups are hereby confirmed. 
7.3.        Retailers and Consumers
(43)     In the absence of comments
concerning the interest of retailers and consumers, recitals (150) to (153) of
the provisional Regulation are hereby confirmed.
7.4.        Conclusion on Union
interest
(44)     In view of the above, the
provisional findings concerning Union interest are confirmed, i.e. there are no
compelling reasons against the imposition of definitive measures on imports of certain
aluminium foils in rolls originating in the PRC.
8.           DEFINITIVE ANTI-DUMPING
MEASURES
8.1.        Injury elimination level
(45)     After
disclosure of the provisional findings, Ningbo Favored made a submission
concerning the methodology employed to calculate the injury margins. The
company claimed that the adjustments made to the PCN structure had created an
imbalance. In particular, it claimed that packaging costs were probably
responsible for distorting the data. A second issue concerned the method
employed to ensure fair comparison in terms of level of trade. At the
provisional stage the Union data was split between retail and wholesale sales
channels, however, Ningbo Favored argued that this created two target prices
per product type which it said would be unlawful.
(46)     With reference to the claim
on the adjustment made to the PCN structure, simulations have shown that
distortions would take place in case no adjustment was made. Those changes to
the PCN structure (which were in effect a consolidation of data to improve
matching rates and representativity) had removed distortions and improved the
reliability of the calculations. Therefore, this claim has to be rejected.
(47)     The second issue raised by the Ningbo Favored, regarding
the method provisionally employed to ensure fair comparison in terms of level
of trade, was also duly analysed. In this respect it was found that although
prices usually differed between the two sales channels, no identifiable or
consistent pattern was present in the current case. Indeed, in certain
instances, the producer sale prices to retailers would be lower than those to
wholesalers whereas in other cases, the opposite would be the case. It was
therefore decided to accept this claim that no level of trade adjustment should
be made because the conditions for such adjustment were not met. Consequently,
the definitive calculations of the injury elimination levels have been done on
the basis of consolidated prices of both the exporting producers and the Union industry,
making no adjustment for level of trade. This
change in methodology slightly affected the injury margins.
(48)     In response to the
definitive disclosure Ningbo Favored argued that the method used to calculate
underselling was flawed and unreliable because, on the Union industry side, its
starting point was the Union sales price per PCN rather than the cost of
production per PCN. Ningbo Favored concluded that the COP per PCN was not used because
the Commission officials "did not urge" the company to provide the
relevant data and the proceeding should therefore be terminated because of a "lack
of evidence".
(49)     However, the basic
Regulation does not prescribe how Union industry's target price should be
established. It is common practice to do this either on the basis of cost of
production per PCN plus target profit, or by using the ex-works sales prices
per PCN to unrelated customers on the Union market and adjusting those by the
actual profit/loss made during the IP and by adding the established target profit.
It is noted that both methods are reliable and they may be used interchangeably
(depending on the circumstances). In the investigation, the second method (i.e.
on the basis of actual Union sales prices to unrelated customers) was employed
because not all the sampled Union producers were able to calculate a reliable COP
per PCN. 
(50)     In view of the above, the allegation
that the method adopted is unreliable and the claim that the proceeding should
therefore be terminated are rejected. 
(51)     The CeDo Group claimed that
the methodology used for calculating its provisional injury margins was not
correct because it did not fully take into account the structure of the Cedo
Group. Indeed the importer CeDo UK, related to a sampled co-operating exporting
producer ("CeDo (Shanghai)"), supplies the Union market with foil
produced in both the PRC and the Union, all channelled via a related importer/trader.
The company claimed that SGA of this related importer and a profit margin
should not have been deducted from CeDo resales price as competition takes place
at the level of customers in the EU. CeDo sales prices at customers' level, it
claimed, would not be injurious to the Union industry.
(52)     CeDo's assertion regarding
its sales prices vis-à-vis those of the Union industry was challenged by
several submissions from complaining Union producers. However, this issue could
not be further investigated because the information submitted by the parties could
not be verified at such a late stage of the investigation. 
(53)     On
substance, it should be noted that the purpose of calculating an injury margin
is to determine whether applying to the CIF price of the dumped imports a lower
duty rate than the one based on the dumping margin would be sufficient to
remove the injury caused by the dumped imports. This assessment should be based
on the CIF price of the imports in question, which is considered to be a level
comparable to the Union industry ex-works price. In the case of imports made
via related importers, by analogy with the approach followed for the dumping
margin calculations, which the injury margin calculations could subsitute for
the determination of the duty rate in application of the lesser-duty rule, the
CIF price is constructed on the basis of the resales price to the first
independent customer duly adjusted pursuant to Article 2(9) of the basic
Regulation. Second and without prejudice to the latter observations, it should
be noted that the methodology advocated by CeDo would lead to the inevitable
use of prices relating to the Union production by CeDo of aluminium foil since,
as mentioned above, the related importer/trader supplied the Union market with
aluminium foil produced both in China and the Union. 
(54)     CeDo returned to the above
issue at the definitive stage. It also requested to be heard by the Hearing
Officer of the Directorate-General for Trade and a hearing was organised to
discuss the matter. CeDo reiterated its previous arguments and also challenged
the above explanation concerning Article 2(9), stating that Article 2(9) appears
under the dumping provisions of the basic Regulation and could not be used by
analogy for calculating injury. The institutions pointed out that although
Article 2 deals with dumping issues, Article 2(9) thereunder falls under the
"export price" subchapter and it gives guidance for calculating an
export price in case of Union sales via a related importer. No other provision
in the basic Regulation gives more specific guidance in this regard.
(55)     CeDo
raised the issue of the Kazchrome[4]
judgment of the General Court which it alleged provided guidance in this
respect by stating that the most accurate way of
calculating price undercutting would be to compare import prices with the
prices of goods of the Community industry by including all the costs incurred
up until the customers' premises. However, it should be
noted that the Court also acknowledged that this approach is not practical and
the judgment makes clear that CIF prices are an acceptable methodology in
calculating injury margins. In addition, the Kazchrome case related to a
special situation involving goods which entered the EU market first through Lithuania (in transit) and then to Rotterdam where they were customs cleared. In that case, the
Commission had decided to calculate undercutting and underselling on the basis
of the price at the point of transit, as opposed to the price after customs
clearance. This is not the case in the current investigation where it is not
disputed that the underselling and the undercutting calculations are based on
CeDo's CIF price after customs clearance. Furthermore, in the Kazchrome
judgment the Court clearly restricted its conclusions to that specific case.
(56)     CeDo also raised the issue
of fair comparison and quoted two WTO Panel Reports[5]. The institutions are satisfied
that CeDo's prices as established by the Commission services and the ex-works
Union industry prices (both for undercutting and underselling) provide the
basis of a fair and reasonable comparison. It should be remembered that a
perfect comparison would mean that only bids for the same contract should be
taken into account because only then would the conditions of sale be identical.
As a perfect comparison is not possible here the institutions are satisfied
that its methodology (which uses average prices collected for similar products
over the period of a one year IP) is fair. This methodology has been clearly
communicated by disclosure.
(57)     Furthermore, it is
considered that the method advocated by CeDo would lead to unequal treatment in
the calculation of its margins and those of other sampled exporting producers
selling to independent importers. The methodology employed for the other
sampled exporting producers was based on an export price at CIF level which of
course excludes Union SGA and profit for resale in the Union after customs
clearance. The Commission considers that the establishment of the relevant
import price for undercutting and underselling calculations should not be
influenced by whether the exports are made to related or independent operators
in the Union. The methodology followed by the Commission ensures that both
circumstances receive equal treatment. Lastly, as already mentioned in recital
(53) above, the approach requested by CeDo would, in particular in the
circumstances of this company, confuse and blur the two distinct qualities in
which Cedo operates as a supplier of aluminium foil to the Union market.
Indeed, Cedo supplies the Union market, first, as a producer located in the
Union and, second, as a reseller of alumium foil imported from China. The purpose of the injury margin calculations is not to measure to what extent the
sales of CeDo UK, as a Union importing producer, are causing injury to the
Union producers but rather whether the exports from CeDo Shanghai have such
effect through undercutting and underselling the prices of Union producers. To
that end, the relevant price to be taken into account is the price at which the
product concerned is sold to the Union, and not the price at which the imported
materials are then resold by importing producers in the Union. This is
consistent with the approach taken when calculating the injury margin
attributable to imports made by domestic producers in the Union.
(58)     Finally, it should be
stated that the Union producers' prices have been adjusted to an ex-works level
by deducting mot only credit notes, discounts and rebates but also commissions
(a form of selling cost) and transport related expenses. Hence comparing the
importer's resale price with a Union ex-works price would not be a fair
comparison.
(59)     For the reasons stated
above, it was mantained that the claim to revise the methodology to calculate
CeDo's injury margin could not be accepted.
(60)     However, the revised
unrelated importers profit margin (modified for the reasons explained in recital
(23) above) had an impact on the injury margin of CeDo, as this is deducted
from its resales price. Finally, all underselling margins were affected by the
correction of a minor clerical error in the application of the target profit at
the provisional stage. 
(61)     On the basis of the above,
the definitive injury margins are as follows: 
 Company Name || Underselling 
 CeDo (Shanghai) Ltd. || 14.2% 
 Ningbo Favored Commodity Co. Ltd. || 14.6% 
 Ningbo Times Aluminium Foil Technology Co., Ltd || 15.6% 
 Weighted average for other co-operators || 14.6% 
 Residual || 35.6% 
8.2.        Definitive measures
(62)     In view of the conclusions
reached with regard to dumping, injury, causation and Union interest, and in
accordance with Article 9(4) of the basic Regulation, a definitive anti-dumping
duty should be imposed on imports of certain aluminium foils in rolls originating
in the PRC at the level of the lower of the dumping and
injury margins found, in accordance with the lesser duty rule. In this case,
the duty rate should accordingly be set at the level of the injury margins found.

(63)     On the basis of the above,
the rate at which such duties will be imposed are set as follows: 
 Company Name || Dumping margin || Injury elimination margin || Anti-dumping Duty Rate 
 CeDo (Shanghai) Ltd. || 37.4% || 14.2% || 14.2% 
 Ningbo Favored Commodity Co. Ltd. || 30.6% || 14.6% || 14.6% 
 Ningbo Times Aluminium Foil Technology Co. Ltd. || 32.9% || 15.6% || 15.6% 
 Other co-operating companies || 34.9% || 14.6% || 14.6% 
 Countrywide dumping margin || 45.6% || 35.6% || 35.6% 
(64)     The
individual company anti-dumping duty rates specified in this Regulation were
established on the basis of the findings of the present investigation.
Therefore, they reflect the situation found during that investigation in
respect to these companies. These duty rates (as opposed to the countrywide
duty applicable to 'all other companies') are thus exclusively applicable to
imports of the products originating in the PRC and produced by the companies
and thus by the specific legal entities mentioned. Imports of the product
concerned manufactured by any other company not specifically mentioned in the
operative part of this Regulation with its name and address, including entities
related to those specifically mentioned, cannot benefit from these rates and
shall be subject to the duty rate applicable to ‘all other companies’.
(65)     In order to minimise the
risks of circumvention due to the high difference in the duty rates, it is
considered that special measures are needed in this case to ensure the proper
application of the anti-dumping duties. These special measures include 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 this
Regulation. Imports not accompanied by such an invoice shall be made subject to
the residual anti-dumping duty applicable to all other exporters. 
(66)     Should the exports by one
of the companies benefiting from lower individual duty rates increase
significantly in volume after the imposition of the measures concerned, such an
increase in volume could be considered as constituting in itself a change in
the pattern of trade due to the imposition of measures within the meaning of
Article 13(1) of the basic Regulation. In such circumstances and provided the
conditions are met an anti-circumvention investigation may be initiated. This
investigation may, inter alia, examine the need for the removal of individual
duty rates and the consequent imposition of a country-wide duty. 
(67)     Any claim requesting the
application of an individual anti-dumping duty rate (e.g. following a change in
the name of the entity or following the setting up of new production or sales
entities) should be addressed to the Commission[6]
forthwith with all relevant information, in particular any modification in the
company’s activities linked to production, domestic and export sales associated
with, for instance, that name change or that change in the production and sales
entities. If appropriate, this Regulation will then be amended accordingly by
updating the list of companies benefiting from individual anti-dumping duty
rates.
(68)     In
order to ensure a proper enforcement of the anti-dumping duty, the country-wide
duty level should not only apply to the non-cooperating exporting producers but
also to those producers which did not have any exports to the Union during the
IP.
(69)     In
order to ensure equal treatment between any new exporters and the cooperating
companies not included in the sample, listed in the table at Article 1(2) below
at the sample average duty rate of 14,6%, provision should be made for the
weighted average duty imposed on the latter companies to be applied to any new
exporters which would otherwise be entitled to a review pursuant to Article
11(4) of the basic Regulation as that Article does not apply where sampling has
been used.
(70)     All
parties were informed of the essential facts and considerations on the basis of
which it was intended to recommend the imposition of a definitive anti-dumping
duty on imports of certain aluminium foils in rolls
originating in the PRC and the definitive collection of
the amounts secured by way of the provisional duty (final disclosure). All
parties were granted a period within which they could make comments on this
final disclosure. 
(71)     The oral and written
comments submitted by the interested parties were considered and taken into
account where appropriate.
9.           DEFINITIVE COLLECTION OF
THE PROVISIONAL DUTY
(72)     In view of the magnitude of
the dumping margins found and in the light of the level of the injury caused to
the Union industry, it is considered necessary that the amounts secured by way
of the provisional anti-dumping duty, imposed by the provisional Regulation
should be definitively collected.
(73)     Where the definitive duties
are higher than the provisional duties, only the amounts secured at the level
of the provisional duties should be definitively collected, while the amounts
secured in excess of the definitive rate of anti-dumping duties should be
released. 
HAS
ADOPTED THIS REGULATION:
Article 1
1. A definitive anti-dumping duty is hereby
imposed on imports of aluminium foil of a thickness of 0,007 mm or more but
less than 0,021 mm, not backed, not further worked than rolled but whether or
not embossed, in low weight rolls of a weight not exceeding 10 kg, currently
falling within CN codes ex 7607 11 11 and ex 7607 19 10 (TARIC codes 7607 11 11
10 and 7607 19 10 10) and originating in the People’s Republic of China.
2. The rate of the definitive anti-dumping
duty applicable to the net, free-at-Union-frontier price, before duty, of the
product described in paragraph 1 and manufactured by the companies listed
below, shall be as follows:
 Company || Duty || TARIC additional code 
 CeDo (Shanghai) Ltd., Shanghai || 14,2% || B299 
 Ningbo Favored Commodity Co. Ltd., Yuyao City || 14,6% || B301 
 Ningbo Times Aluminium Foil Technology Co. Ltd., Ningbo || 15,6% || B300 
 Able Packaging Co.,Ltd., Shanghai || 14,6% || B302 
 Guangzhou Chuanlong Aluminium Foil Product Co.,Ltd., Guangzhou || 14,6% || B303 
 Ningbo Ashburn Aluminium Foil Products Co.,Ltd., Yuyao City || 14,6% || B304 
 Shanghai Blue Diamond Aluminium Foil Manufacturing Co.,Ltd., Shanghai || 14,6% || B305 
 Weifang Quanxin Aluminum Foil Co.,Ltd., Linqu || 14,6% || B306 
 Zhengzhou Zhuoshi Tech Co. Ltd., Zhengzhou City || 14,6% || B307 
 Zhuozhou Haoyuan Foil Industry Co.,Ltd., Zhouzhou City || 14,6% || B308 
 Zibo Hengzhou Aluminium Plastic Packing Material Co.,Ltd., Zibo || 14,6% || B309 
 Yuyao Caelurn Aluminium Foil Products Co.,Ltd., Yuyao || 14,6% || B310 
 All other companies || 35,6% || B999 
3. The application of the individual duty
rates specified for the companies mentioned in paragraph 2 shall be conditional
upon 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 this Regulation. If no such invoice is presented, the duty applicable to "all
other companies" shall apply.
4. Unless otherwise specified, the
provisions in force concerning customs duties shall apply. 
Article 2
Amounts secured
by way of provisional anti-dumping duty pursuant to Regulation (EU) No 833/2012
shall be definitively collected. The amounts secured in excess of the amount of
the definitive anti-dumping duties shall be released.
Article 3
Where
any new exporting producer in the People’s Republic of China provides sufficient evidence to the Commission that: 
— it
did not export to the Union the product described in Article 1(1) during the
investigation period (1 October 2010 to 30 September
2011), 
— it
is not related to any of the exporters or producers in the People’s Republic of
  China which are subject to the measures imposed by this Regulation, 
— it
has actually exported to the Union 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
Union, 
the Council, acting by simple majority on a proposal
submitted by the Commission after consulting the Advisory Committee, may amend
Article 1(2) by adding the new exporting producer to the cooperating companies
not included in the sample and thus subject to the weighted average duty rate
of 14,6%.
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, 
                                                                       For
the Council
                                                                       The
President
ANNEX 
A declaration signed by an official of the
entity issuing the commercial invoice, in the following format, must appear on
the valid commercial invoice referred to in Article 1(3):
(1) the name and function of the official
of the entity issuing the commercial invoice;
(2) the following declaration:
"I, the undersigned, certify that the
(volume) of certain aluminium foils in rolls, sold for export to the European
Union covered by this invoice, was manufactured by (company name and registered
seat) (TARIC additional code) in the People’s Republic of China. I declare that the information provided in this invoice is complete and correct.
Date and signature".
[1]              OJ L 343, 22.12.2009, p. 51.
[2]               OJ L 251, 18.9.2012, p. 29.
[3]               OJ L331, 01.12.2012, p. 56.
[4]               T‑107/08 Transnational Company ‘Kazchrome’ AO
and ENRC Marketing AG v. Council of the European Union and European Commission
[5]               WTO Panel Report, China – CVD and AD Duties on Grain
Oriented Flat-Rolled Electrical Steel from USA – WT/DS414/R and AD Measure on
Farmed Atlantic Salmon from Norway – WT/DS337/R
[6]               European Commission, Directorate-General for Trade,
Directorate H, Office: NERV-105, 08/020, 1049 Brussels, BELGIUM.