CELEX: 52013PC0072
Language: en
Date: 2013-02-13
Title: Proposal for a COUNCIL IMPLEMENTING REGULATION extending the definitive anti-dumping duty imposed by Council Implementing Regulation (EU) No 2/2012 on imports of certain stainless steel fasteners and parts thereof originating in the People's Republic of China to imports of certain stainless steel fasteners consigned from the Philippines, whether declared as originating in the Philippines or not and terminating the investigation concerning possible circumvention of anti-dumping measures imposed by that regulation by imports of certain stainless steel fasteners and parts thereof consigned from Malaysia and Thailand, whether declared as originating in Malaysia and Thailand or not

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		52013PC0072
		
			Proposal for a COUNCIL IMPLEMENTING REGULATION extending the definitive anti-dumping duty imposed by Council Implementing Regulation (EU) No 2/2012 on imports of certain stainless steel fasteners and parts thereof originating in the People's Republic of China to imports of certain stainless steel fasteners consigned from the Philippines, whether declared as originating in the Philippines or not and terminating the investigation concerning possible circumvention of anti-dumping measures imposed by that regulation by imports of certain stainless steel fasteners and parts thereof consigned from Malaysia and Thailand, whether declared as originating in Malaysia and Thailand or not /* COM/2013/072 final - 2013/0046 (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 investigation of possible circumvention of the
anti-dumping measures imposed by Council Implementing Regulation (EU) No 2/2012 on
imports of certain stainless steel fastners and parts thereof originating in
the People's Republic of China ('the PRC') by imports consigned from Malaysia, Thailand
and the Philippines.
 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 and in particular Article 13 thereof. 
 Existing provisions in the area of the proposal The measures currently in force were imposed by Council Implementing Regulation (EU) No 2/2012 imposing a definitive anti-dumping duty on imports of certain stainless steel fasteners and parts thereof originating in the People's Republic of China and Taiwan following an expiry review pursuant to Article 11(2) of Regulation (EC) No 1225/2009. 
 Consistency with the 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 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 On 15 June 2012 the Commission, by Regulation (EU) No 502/2012, initiated ex officio an investigation concerning the possible circumvention of anti-dumping measures imposed by Council Implementing Regulation (EU) No 2/2012 on imports of certain stainless steel fasteners and parts thereof originating in the PRC by imports consigned from Malaysia, Thailand and the Philippines, whether declared as originating in Malaysia, Thailand and the Philippines or not. The Commission had in its disposal sufficient prima facie evidence that the anti-dumping measures on imports of certain stainless steel fasteners and the parts thereof were being circumvented by means of transhipment via Malaysia, Thailand and the Philippines. The attached proposal for a Council Implementing Regulation is based on the findings of the investigation, which has confirmed that transhipment of certain Chinese-origin stainless steel fasteners was taking place via the Philippines and that all other criteria for the establishment of circumvention as set out in Article 13(1) of the basic Regulation are met. It is therefore proposed to extend the anti-dumping measures in force on certain stainless steel fasteners and parts thereof originating in the PRC to imports of the same product consigned from the Philippines. The duty corresponds to the country-wide duty on imports of certain stainless steel fasternes and part thereof from the PRC (27,4%). The duty shall be levied from the date of initiation of the investigation. Three Filipian companies came forward following the initiation, with a request for exemption from the possible extension of the measures as genuine producers in the Philippines. It is proposed to grant the exemption to two of them. The exemption request of the third company was rejected as during the investigation it was found that it was not a producer or exporter of the product concerned. At the same time findings of the investigation has not confirmed that transhipment of certain Chinese-origin stainless steel fasteners was taking place via Malaysia and Thailand. It is therefore proposed to terminate the investigation with regard to these two countries. The relevant Council Regulation should be published in the Official Journal of the European Union no later than 13 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 and in particular Article 13 thereof. 
 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 Regulation and leaves no scope for national decision. 
 Indication of how the 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: The above-mentioned basic Regulation does not provide for alternative options. 
4.           BUDGETARY IMPLICATION 
The proposal has no implication for the
Union budget.
2013/0046 (NLE)
Proposal for a
COUNCIL IMPLEMENTING REGULATION 
extending the definitive anti-dumping duty
imposed by Council Implementing Regulation (EU) No 2/2012 on imports of
certain stainless steel fasteners and parts thereof originating in the People's
Republic of China to imports of certain stainless steel fasteners consigned
from the Philippines, whether declared as originating in the Philippines or not
and terminating the investigation concerning possible circumvention of
anti-dumping measures imposed by that regulation by imports of certain
stainless steel fasteners and parts thereof consigned from Malaysia and
Thailand, whether declared as originating in Malaysia and Thailand or not
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 13 thereof,
Having regard to the proposal from the
European Commission,
Whereas:
1.           PROCEDURE
1.1.        Existing measures
(1)       By Regulation
(EU) No 2/2012[2] the Council imposed a definitive anti-dumping duty of 24,7% on
imports of certain stainless steel fasteners and parts thereof originating in
the People’s Republic of China (‘the PRC’) for all other companies than the
ones mentioned in Article 1(2) of that Regulation, following the expiry review
of the measures imposed by Council Regulation (EC) No 1890/2005[3] ('the original Regulation'). These measures will hereinafter be
referred to as 'the measures in force' or 'original measures' and the
investigation that led to the measures imposed by the original Regulation will
be hereinafter referred to as 'the original investigation'.
1.2.        Initiation
(2)       Having determined, after
consulting the Advisory Committee, that sufficient prima facie evidence
existed for the initiation of an investigation pursuant to Articles 13(3) and
14(5) of the basic Regulation, the European Commission (‘the Commission’) has
decided, to investigate on its own initiative the possible circumvention of the
anti-dumping measures imposed on imports of certain stainless steel fasteners
and parts thereof originating in the PRC and to make imports of certain
stainless steel fasteners and parts thereof consigned from Malaysia, Thailand
and the Philippines, whether declared as originating in Malaysia, Thailand and
the Philippines or not, subject to registration.
(3)       The
investigation was initiated on 15 June 2012 by Commission Regulation (EU) No 502/2012[4] (‘the initiating Regulation’).
(4)       The prima facie
evidence at the Commission's disposal was that following the imposition of the
measures established in the original investigation a significant change in the
pattern of trade involving exports from the PRC, Malaysia, Thailand and the
Philippines to the Union occurred, for which there was no sufficient due cause
or justification other than the imposition of the measures established in the
original investigation. This change stemmed allegedly from the
transhipment of certain stainless steel fasteners and parts thereof originating
in the PRC via Malaysia, Thailand and the Philippines to the Union.
(5)       Furthermore, the evidence
pointed to the fact that the remedial effects of the measures in force were
being undermined both in terms of quantity and price. The evidence showed that
these increased imports from Malaysia, Thailand and the Philippines were made
at prices below the non-injurious price established in the original
investigation, adjusted for the increase in the costs of the raw material.
(6)       Finally, there was
evidence that the prices of certain stainless steel fasteners and parts thereof
consigned from Malaysia, Thailand and the Philippines were dumped in relation
to the normal value previously established during the original investigation,
adjusted for the increase in the costs of the raw material.
1.3.        Investigation
(7)       The Commission officially
advised the authorities of the PRC, Malaysia, Thailand and the Philippines, the
exporting producers in those countries, the importers in the Union known to be
concerned and the Union industry of the initiation of the investigation.
(8)       Exemption forms were sent
to the producers/exporters in Malaysia, Thailand and the Philippines known to
the Commission or through the Missions of the countries concerned to the
European Union. Questionnaires were sent to the producers/exporters in the PRC
known to the Commission or through the Mission of the PRC to the European
Union. Questionnaires were also sent to the known importers in the Union.
(9)       Interested parties were
given the opportunity to make their views known in writing and to request a
hearing within the time limit set in the initiating Regulation. All parties were informed that non-cooperation
might lead to the application of Article 18 of the basic Regulation and to
findings being based on the facts available.
(10)     Seven Malaysian, six Thai
and three Filipino producers/exporters and their related companies in the PRC, where
applicable, have submitted replies to the exemption forms. Submissions of two
Malaysian, one Thai and one Filipino companies were rejected due to formal reasons
as the companies in question were either found not to be producers of the
product under investigation or they failed to cooperate after the submission of
the exemption form or the exemption form was submitted in a very late stage of
the investigation.
(11)     The questionnaire replies
were submitted by two Chinese exporters and four Union importers/groups of
importers.
(12)     The Commission carried out
the verification visits at the premises of the following companies:
–              
MCP Precision Sdn. Bhd. (Malaysia)
–              
Sofasco Industires (M) Sdn. Bhd. (Malaysia)
–              
Tigges Fastener Technology Sdn. Bhd. (Malaysia) 
and its related trading company Tigges Fastener
Trading Sdn. Bhd. (Malaysia)
–              
Tong Heer Fasteners Co. Sdn. Bhd. (Malaysia)
–              
Well Union Metal Sdn. Bhd. (Malysia) 
and its related companies in Taiwan:
Linkwell Industry and Linkfast Industry
–              
A.B.P. Stainless Steel Fastener Co., Ltd. (Thailand)
–              
Dura Fasteners Co., Ltd. (Thailand)
–              
Taiyo Fasteners Co., Ltd. (Thailand)
–              
Tong Heer Fasteners Co., Ltd. (Thailand)
–              
TPC Stainless & Steel Fasteners Co., Ltd. (Thailand)

and its related companies TPC Fasteners Co.
Ltd, Thai Phaisarn Fastening Co. Ltd. and Phaisarn Fastening Ltd. Part. (Thailand)
–              
Multi-Tek Fastenres Inc. (the Philippines)
and its related company in Taiwan Multi-Tek
Fasteners & Parts Manufacturer Inc.
–              
Phil Shin Works Corporation (the Philippines)
–              
Rosario Fasteners Corporation (the Philippines) 
and its related company in Taiwan Lu Chu
Shin Yee Works Co., Ltd.
1.4.        Reporting period and investigation
period
(13)     The reporting period
('RP'), i.e. the period for which value added tests and dumping/underselling
calculations were done, covered 12 months from 1 April 2011 to 31 March 2012.
The investigation period ("IP"), i.e. the period for which analysis
of changes in trade patterns were done and possible circumvention practices
were examined, covered the period from the imposition of the original measures
until the end of the RP.
2.           RESULTS OF THE
INVESTIGATION
2.1.        General considerations
(14)     In accordance with Article
13(1) of the basic Regulation, the assessment of the existence of circumvention
was made by analysing successively whether there was a change in the pattern of
trade between the PRC, the three countries concerned and the Union; if this
change stemmed from a practice, process or work for which there was
insufficient due cause or economic justification other than the imposition of
the duty; if there was evidence of injury or that the remedial effects of the
duty were being undermined in terms of the prices and/or quantities of the
product under investigation; and whether there was evidence of dumping in
relation to the normal values previously established in the original
investigation, if necessary in accordance with the provisions of Article 2 of
the basic Regulation.
2.2.        Product concerned and
product under investigation
(15)     The product concerned by
the possible circumvention is certain stainless steel fasteners and parts
thereof, originating in the People’s Republic of China, currently falling
within CN codes 7318 12 10, 7318 14 10, 7318 15 30, 7318 15 51, 7318 15 61 and
7318 15 70 (‘the product concerned’).
(16)     The product under
investigation is the same as that defined above, but consigned from Malaysia,
Thailand and the Philippines, whether declared as originating in Malaysia,
Thailand and the Philippines or not, currently falling within the same CN codes
as the product concerned ('the product under investigation’).
(17)     The investigation showed that
stainless steel fasteners and parts thereof, as defined above, exported from
the PRC to the Union and those consigned from Malaysia, Thailand and the
Philippines to the Union have the same basic physical and technical
characteristics and have the same uses, and are therefore to be considered as
like products within the meaning of Article 1(4) of the basic Regulation.
2.3.        Findings with regard to the
Philippines
2.3.1.     Level of cooperation
(18)     As stated in recital (10)
above, only three Flipino companies (one of them later found not to be a producer
or exporter of the product under investigation) submitted an exemption form reply.
Thus, the cooperating companies were representing 10% of the Filipino exports
of the product under investigation to the Union in the RP. 
(19)     A questionnarie reply was
also submitted by two Chinese producers/exporters however, none of them was
involved in export to the Philippines in the IP. 
(20)     Taking into account the relatively
low level of cooperation of the Filipino and Chinese companies the findings in
respect of imports of certain stainless steel fasterens and parts thereof from the
Philippines into the Union and exports of the product concerned from the PRC to
the Philippines had to be made on the basis of facts available in accordance
with Article 18(1) of the basic Regulation. In this case Eurostat data was used
to determine overall import volumes from the Philippines to the Union and
Chinese export statistics were used for the determination of the overall
exports from the PRC to the Phillipines.
(21)     With regard to the Chinese
export statistics it should be noted that statistics of trade flows between the
PRC and the Philippines cover whole HS codes that is a larger product group
then the product concerned and the product under investigation. However, taking
into account the very clear trend that existed, these data can be used to
establish a change in pattern of trade.
(22)     Finally, as an additional
source of information the data provided by the Filipino authorities were used.
Although these data were not complete and detailed enough to be a sole basis for
the analysys they were suitable to cross-check findings with regard to the
pattern of trade.
2.3.2.     Change in
the pattern of trade
(23)     After the imposition of the
original measures on the imports from the PRC, imports into the Union of the
product under investigation from the Philippines increased suddenly and markedly.
From the minimal level of below 100 MT yearly in 2004-2005 it raised to more
than 12 thousand MT in the RP.
   || 2004 || 2005 || 2006 || 2007 || 2008 || 2009 || 2010 || 2011 || RP 
 Volume (MT) || 69 || 23 || 1 369 || 6 048 || 7 046 || 5 406 || 15 580 || 14 528 || 12 075 
Source: Eurostat
(24)     At the same time exports
from China to the Philippines were increasing sharply in the years 2004-RP from
1.1 thousand MT to more than 15
thousand MT. 
   || 2004 || 2005 || 2006 || 2007 || 2008 || 2009 || 2010 || 2011 || RP 
 Volume (MT)   || 1104 || 2022 || 2107 || 3727 || 3856 || 7513 || 11262 || 15553 || 15632   
Source: Chinese export statistics (Global
Trade Atlas Database)
(25)     The data clearly show that imports
from the Philippines into the Union were negligible in 2004 and 2005. However,
in 2006, following the imposition of the measures on the PRC, the imports
surged suddenly and partly replaced the exports from the PRC on the Union
market in terms of volume. Moreover, since the imposition of the measures in
force, the decrease of the exports from the PRC to the Union has been
significant (70%). Furthermore, it is noted that the data received from the
Filipino authorities confirm that only small percentage of imports from the PRC
was released for trade in the Filipino custom territory. Most of the import was
directed to the special economic zones. 
2.3.3.     Nature of the circumvention
practice
(26)     Article 13(1) of the basic
Regulation requires that the change in the pattern of trade stems from a
practice, process or work for which there is insufficient due cause or economic
justification other than the imposition of the duty. The practice, process or
work includes, inter alia, the consignment of the product subject to
measures via third countries.
(27)     It is noted that Filipino
exports of the cooperating companies amounted to some 10% of the total Filipino
exports to the Union in the RP. The remaining exports can be attributed to the
producers that have not cooperated with the investigation or by pure
transhipment practises. The latter conclusion is supported by the information
and data provided by the Filipino authorities, in particular the facts that i)
most of the imports from the PRC of the product concerned was directed to
special economic zones and did not enter the Filipino custom territories, ii)
the number of genuine producers of the product under investigation in the
Philippines is very limited.
(28)     The
existence of transhipment of Chinese-origin products via the Philippines was
therefore confirmed.
2.3.4.     Insufficient due cause or economic
justification other than the imposition of the anti-dumping duty
(29)     The investigation did not
bring to light any other due cause or economic justification for the
transhipment than the avoidance of the measures in force on the product
concerned. No elements were found, other than the duty, which could be
considered as a compensation for the costs of transhipment, in particular
regarding transport and reloading, of certain stainless steel fasteners and
parts thereof originating in the PRC via the Philippines.
2.3.5.     Undermining of the remedial
effect of the anti-dumping duty 
(30)     To assess whether the
imported product under investigation had, in terms of quantities and prices,
undermined the remedial effects of the measures in force on imports of the
product concerned, Eurostat data was used as the best data available concerning
quantities and prices of exports by the non-cooperating companies in the
Philippines. The prices so determined were compared to the injury elimination
level established for Union producers in the original investigation. Given the substantial
time difference between the original IP and the RP in the present
investigation, the significant developments in the basic elements of costs of
production had to be taken into account. This was reflected in the adjustement
of the non-injurious price on the basis of the increase in the price of the
basic raw-materials and, for the remaining elements of costs of manufacturing
and sales, on the basis of the variation in the consumer price index in the
Union. 
(31)     The increase of imports
from the Philippines to the Union from below 100 MT in 2004 to over 12 thousand
MT in the RP was considered to be significant in terms of quantities.
(32)     The comparison of the adjusted
injury elimination level and the weighted average export price showed
underselling. 
(33)     It was therefore concluded
that the remedial effects of the measures in force are being undermined in
terms of both quantities and prices.
2.3.6.     Evidence of dumping
(34)     Finally, in accordance with
Article 13(1) of the basic Regulation it was examined whether there was
evidence of dumping in relation to the normal value established in the original
investigation. 
(35)     In the original Regulation
the normal value was established on the basis of prices in Taiwan, which in
that investigation was found to be an appropriate market economy analogue
country for the PRC. However, given the substantial time difference between the
original IP and the RP in the present investigation, the siginificant developments
in the basic elements of costs of production had to be taken into account. This
was relflected in the adjustement of the normal value on the basis of the
increase in the price of the basic raw-materials and, for the remaining
elements of costs of manufacturing and sales, on the basis of the variation in
the consumer price index in Taiwan. 
(36)     The export price from the
Philippines was based on facts available, i.e. on the average export price of
certain stainless steel fasteners and parts thereof during the RP as reported
in Eurostat. The use of facts available was due to the minimal level of
cooperation by producers of the product under investigation in the Philippines.
The average export price used for the calculation was cross-checked with the
level of export prices of the two cooperating Filipino exporters and it
appeared to be compatible with them. 
(37)     For the purpose of a fair
comparison between the normal value and the export price, due allowance, in the
form of adjustments, was made for differences which affect prices and price
comparability in accordance with Article 2(10) of the basic Regulation.
Accordingly, adjustments were made for differences in transport, insurance and
for non-refundable VAT on export sales in the PRC. Given that there was limited
cooperation from the producers in the Philippines and the PRC, the adjustments
had to be established on the basis of the best facts available. Thus, the
adjustments for transport and insurance were based on per tonne transport and
insurance cost established in the original investigation.
(38)     In accordance with Articles
2(11) and 2(12) of the basic Regulation, dumping was calculated by comparing adjusted
weighted average normal value as established in the original Regulation and the
corresponding weighted average export prices of the Filipino import during this
investigation’s RP, expressed as a percentage of the CIF price at the Union
frontier duty unpaid.
(39)     The comparison of the
weighted average normal value and the weighted average export price as established
showed dumping.
2.4.        Findings with regard to
Malaysia
2.4.1.     Level of cooperation
(40)     As stated in recital (10)
above, seven Malaysian companies submitted exemption form replies. One of these
companies appeared not to be the producer of the product under investigation,
while the other submitted its incomplete reply in the late stage of the investigation
which made it impossible to supplement deficiences and verify the submitted
information and data. Therefore, these two exemption form replies had to be disregarded.
Nevertheless, the remaining five cooperating Malaysian companies represented 93%
of the Malaysian exports of the product under investigation to the Union in the
RP.
2.4.2.     Change in pattern of trade
(41)     After the imposition of the
original measures on the imports from the PRC, imports into the Union of the
product under investigation from Malaysia was increasing steadily. From the
level of below 2 thousand MT yearly in 2004-2005 it raised to more than 13
thousand MT in the RP.
   || 2004 || 2005 || 2006 || 2007 || 2008 || 2009 || 2010 || 2011 || RP 
 Volume (MT) || 1 701 || 1 849 || 7 930 || 13 548 || 13 712 || 9 809 || 9 615 || 13 498 || 13 363 
Source: Eurostat
(42)     However, it should be
stressed that following the verification visits it was confirmed that this
increase in Malaysian exports to the Union can be explained by the increase of
genuine production in Malaysia over the same period. Cooperating companies,
which were found to be Malaysian producers not involved in the circumvention
practices, represent 93% of the export to the Union. The investigation revealed
that only one of these companies was transhipping the product concerned but
this practice concerned small part of its sales and ended in 2009. None of the
cooperating companies was also found to be involved in the assembling
operations where the Chinese-origin parts or semi-products would be used.
(43)     Taking into account the
above it is concluded that increased imports from Malaysia are justified by
increase in the domestic production. Therefore, the change in the pattern of
trade between Malaysia and the Union does not result from circumvention
practices.
2.5.        Findings with regard to
Thailand
2.5.1.     Level of cooperation
(44)     As stated in recital (10)
above, six Thai companies submitted exemption form replies. One of these
companies failed to cooperate in the further procedure which made it impossible
to supplement deficiences and held on spot verification of the submitted
information and data. Therefore, this exemption form reply was disregarded.
Nevertheless, the remaining five cooperating Thai companies represented 67% of
the Thai exports of the product under investigation to the Union in the RP.
2.5.2.     Change in the pattern of
trade
(45)     After the imposition of the
original measures on the imports from the PRC, imports into the Union of the
product under investigation from Thailand showed the following trend:
   || 2004 || 2005 || 2006 || 2007 || 2008 || 2009 || 2010 || 2011 || RP 
 Volume (MT) || 5 373 || 3 308 || 1 290 || 850 || 453 || 128 || 367 || 5 546 || 6 715 
Source: Eurostat
(46)     Analyses of the exports
from Thailand into the Union have to be made against the background of the fact
that from November 2005 on Thailand, like the PRC, was subject to the Union anti-dumping
measures[5].
These measures lapsed in November 2010. Following that, there was a sharp
increase in Thai exports to the Union – from 367 MT in 2010 to more than 5.5
thousand MT in 2011 and more than 6.7 thousand MT in the RP.
(47)     However, it should be noted
that the Thai exports of the product under investigation to the Union in the RP
are in absolute terms not much higher than in 2004 before the anti-dumping
measures were imposed on the PRC and Thailand. In relative terms (as share in
the total Union imports) imports from Thailand even dropped from almost 12% to
7%.
(48)     The investigation did not
reveal any transhipping or assembling operations where the Chinese-origin parts
or semi-products would be used. Taking into account the fact that before the
imposition of anti-dumping measures the exports from Thailand were definitely
of genuine Thai production it is difficult to conclude that the current level
of export which is similar in volume would have different origin. It should be
also stressed that the two biggest Thai producers cooperating in this
investigation were also present in the original investigation against Thailand.

(49)     Taking into account the
above it is concluded that increased imports from Thailand are to a large
extent justified by domestic production. Therefore, the change in the pattern
of trade between Thailand and the Union does not result from circumvention
practices.
3.           MEASURES
(50)     Given the above, it was
concluded that the definitive anti-dumping duty imposed on imports of certain stainless
steel fasteners and the parts thereof originating in the PRC was circumvented
by transhipment via the Philippines within the meaning of Article 13(1) of the
basic Regulation.
(51)     In accordance with the
first sentence of Article 13(1) of the basic Regulation, the measures in force
on imports of the product concerned, should be extended to imports of the product
under investigation, i.e. the same product but consigned from the Philippines,
whether declared as originating in the Philippines or not.
(52)     In light of the low level
of the cooperation in this investigation, the measures to be extended should be
the measures established in Article 1(2) of Regulation (EU) No 2/2012 for
"all other companies" from the PRC, which is presently a definitive
anti-dumping duty of 27,4% applicable to the net, free-at-Union-frontier price,
before duty.
(53)     In accordance with Articles
13(3) and 14(5) of the basic Regulation, which provide that any extended
measure should apply to imports which entered the Union under registration
imposed by the initiating Regulation, duties should be collected on those
registered imports of certain stainless steel fasteners and parts thereof consigned
from the Philippines.
4.           TERMINATION OF THE
INVESTIGATION IN RESPECT OF IMPORTS FROM MALAYSIA AND THAILAND
(54)     In view of the findings
regarding Malaysia and Thailand, the investigation concerning possible
circumvention of anti-dmping measures by imports of certain stainless steel
fasteners and parts thereof consigned from Malaysia and Thailand should be
terminated and the registration of imports of certain stainless steel fasteners
and parts thereof consigned from Malaysia and Thailand, introduced by the initiating
Regulation, should be discontinued.
5.           REQUESTS FOR EXEMPTION
(55)     As explained in the recital
(10), 16 companies located in Malaysia, Thailand and the Philippines submitted
exemption form responses requesting an exemption from the possible extended
measures in accordance with Article 13(4) of the basic Regulation.
(56)     The
exemption requests of the Malaysian and Thai companies were not assessed as the
measures are not extended on these two countries.
(57)     One of the three Filipino
companies requesting exemption was found not to produce and export the product under
investigation during the IP and no conclusions could be drawn as to the nature
of its operations. Therefore, an exemption to this company can not be granted
at this stage. However, should it appear, after extension of the anti-dumping
measures in force, that the conditions in Article 11(4) and 13(4) of the basic
Regulation are fulfilled, the company may request a review of its situation.
(58)     Following
the verification visits it was confirmed that the
remaining two Filipino exporting producers were genuine. It is therefore
concluded that they were not engaged in circumvention practices and therefore
exemptions to these companies can be granted.
(59)     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 this Regulation. Imports not accompanied by such an invoice shall be
made subject to the extended anti-dumping duty. 
(60)     Other Filipino producers which did not come forward in this
proceeding and did not export the product under investigation during the IP,
which intend to lodge a request for an exemption from the extended anti-dumping
duty pursuant to Articles 11(4) and 13(4) of the basic Regulation will be
required to complete an exemption form in order to enable the Commission to
assess such a request. The Commission would normally also carry out an on-spot
verification visit. Provided that the conditions set in Articles 11(4) and
13(4) of the basic Regulation are met, an exemption may be warranted. Where an
exemption is warranted, the Commission may, after consultation of the Advisory
Committee, authorise by decision, the exemption of imports from companies which
do not circumvent the anti-dumping measures imposed by Regulation (EU) No
2/2012, from the duty extended by this regulation.
6.           DISCLOSURE
(61)     All interested parties were
informed of the essential facts and considerations leading to the above
conclusions and were invited to comment. Following disclosure, no comments were
received.
HAS ADOPTED THIS REGULATION:
Article 1
1. The definitive anti-dumping duty
applicable to "all other companies" from the PRC imposed by Article
1(2) of Regulation (EU) No 2/2012 on imports of certain stainless steel
fasteners and parts thereof originating in the People's Republic of China, is
hereby extended to imports of certain stainless steel fasteners and parts
thereof consigned from the Philippines, whether declared as originating in the
Philippines or not, currently falling under CN codes ex 7318 12 10, ex 7318 14
10, ex 7318 15 30, ex 7318 15 51, ex 7318 15 61 and ex 7318 15 70 (TARIC codes
7318 12 10 11, 7318 12 10 91, 7318 14 10 11, 7318 14 10 91, 7318 15 30 11, 7318
15 30 61, 7318 15 30 81, 7318 15 51 11, 7318 15 51 61, 7318 15 51 81, 7318 15
61 11, 7318 15 61 61, 7318 15 61 81, 7318 15 70 11, 7318 15 70 61 and 7318 15
70 81), with the exception of those produced by the companies listed below:
Company        Additional Taric Code
Multi-Tek Fasteners Inc, Clark Freeport Zone, 
Pampanga,
Philippines  B355
Rosario Fasteners Corporation, Cavite
Economic Area, Philippines       B356
2. The
application of exemptions granted to the companies specifically mentioned in
paragraph 1 of this Article or authorised by the Commission in accordance with
Article 3(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. If no such invoice is presented, the anti-dumping
duty as imposed by paragraph 1 of this Article shall apply.
3. The duty extended by paragraph 1 of this
Article shall be collected on imports consigned from the Philippines, whether
declared as originating in the Philippines or not, registered in accordance
with Article 2 of Regulation (EU) No 2/2012 and Articles 13(3) and 14(5) of
Regulation (EC) No 1225/2009 with the exception of those produced by the
companies listed in paragraph 1. 
4. Unless otherwise specified, the
provisions in force concerning customs duties shall apply.
Article 2
The investigation concerning possible
circumvention of anti-dumping measures imposed by Regulation (EU) No 2/2012 on
imports of certain stainless steel fasteners and parts thereof originating in
the People's Republic of China, by imports of certain stainless steel fasteners
and parts thereof consigned from Malaysia and Thailand, whether declared as
originating in Malaysia and Thailand or not, is hereby terminated.
Article 3
1. Requests for exemption from the duty extended
by Article 1 shall be made in writing in one of the official languages of the
European Union and must be signed by a person authorised to represent the
entity requesting the exemption. The request must be sent to the following
address:
European Commission
Directorate-General for Trade
Directorate H
Office: N-105 08/20
1049 Brussels
Belgium
Fax (32 2) 295 65 05
2. In accordance with Article 13(4) of
Regulation (EC) No 1225/2009 the Commission, after consulting the Advisory
Committee, may authorise, by decision, the exemption of imports from companies
which do not circumvent the anti-dumping measures imposed by Regulation (EU) No
2/2012, from the duty extended by Article 1.
Article 4
Customs authorities are hereby directed to
discontinue the registration of imports, established in accordance with Article
2 of Regulation (EU) No 2/2012.
Article
5
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(2):
(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 (product concerned) sold for export
to the European Union covered by this invoice was manufactured by (company name
and address) (TARIC additional code) in (country concerned). I declare that the
information provided in this invoice is complete and correct’;
(3) date and signature.
[1]               OJ L 343, 22.12.2009, p. 51.
[2]               OJ L 5, 7.1.2012 p. 1.
[3]               OJ L 302, 19.11.2005, p. 1.
[4]               OJ L 153, 14.6.2012, p.8.
[5]               OJ L 302, 19.11.2005, p. 1.