CELEX: 52012PC0331
Language: en
Date: 2012-06-20
Title: Proposal for a COUNCIL IMPLEMENTING REGULATION extending the definitive anti-dumping duty imposed by Council Implementing Regulation (EU) No 791/2011 on imports of certain open mesh fabrics of glass fibres originating in the People's Republic of China to imports of certain open mesh fabrics of glass fibres consigned from Malaysia, whether declared as originating in Malaysia or not

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		52012PC0331
		
			Proposal for a COUNCIL IMPLEMENTING REGULATION extending the definitive anti-dumping duty imposed by Council Implementing Regulation (EU) No 791/2011 on imports of certain open mesh fabrics of glass fibres originating in the People's Republic of China to imports of certain open mesh fabrics of glass fibres consigned from Malaysia, whether declared as originating in Malaysia or not /* COM/2012/0331 final - 2012/0160 (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 791/2011 on
imports of certain open mesh fabrics of glass fibres originating in the
People's Republic of China ('the PRC') by imports consigned from Malaysia.
 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 791/2011 imposing a definitive anti-dumping duty on imports of open mesh fabrics of glass fibres originating in the People's Republic of China. 
 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 10 November 2011 the Commission, by Regulation (EU) No 1135/2011, initiated an investigation concerning the possible circumvention of anti-dumping measures imposed by Council Implementing Regulation (EU) No 791/2011 on imports of certain open mesh fabrics of glass fibres originating in the PRC by imports consigned from Malaysia, whether declared as originating in Malaysia or not. The Commission has received a request pursuant to Articles 13(3) and 14(5) of the basic Regulation which contained sufficient prima facie evidence that the anti-dumping measures on imports of certain open mesh fabrics of glass fibres were being circumvented by means of transhipment via Malaysia. The request was lodged on 27 September 2011 by Saint Gobain Adfors CZ s.r.o., Tolnatext Fonalfeldolgozo es Muszakiszovet-gyarto Bt., Valmieras "Stikla Skiedra" AS and Vitrulan Technical Textiles GmbH, four Union producers of certain open mesh fabrics of glass fibres. 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 open mesh fabrics of glass fibres was taking place via Malaysia 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 open mesh fabrics of glass fibres originating in the PRC to imports of the same product consigned from Malaysia. The duty corresponds to the country-wide duty on imports of certain open mesh fabrics of glass fibres from the PRC (62,9%). The duty shall be levied from the date of initiation of the investigation. Three cooperating producers in Malaysia requested exemption from the possible extended measures. For these three companies which did not fully cooperate and who were found to be engaged in circumvention practises, it is proposed to deny exemptions. The relevant Council Regulation should be published in the Official Journal of the European Union no later than 9 August 2012. 
 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.
2012/0160 (NLE)
Proposal for a
COUNCIL IMPLEMENTING REGULATION 
extending the definitive anti-dumping duty
imposed by Council Implementing Regulation (EU) No 791/2011 on imports of
certain open mesh fabrics of glass fibres originating in the People's Republic
of China to imports of certain open mesh fabrics of glass fibres consigned from
Malaysia, whether declared as originating in Malaysia 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 791/2011[2], (‘the original Regulation’), the Council imposed a definitive
anti-dumping duty of 62,9% on imports of certain open mesh fabrics of glass
fibres originating in the People’s Republic of China (‘the PRC’) for all other
companies than the ones mentioned in Article 1(2) and Annex 1 of that
Regulation. These measures will hereinafter be referred
to as 'the measures in force' and the investigation that led to the measures
imposed by the original Regulation will be hereinafter referred to as 'the
original investigation'.
1.2.        Request
(2)       On 27 September 2011, the European
Commission (‘the Commission’) received a request pursuant to Article 13(3) and
14(5) of the basic Regulation to investigate the possible circumvention of the
anti-dumping measures imposed on imports of certain open mesh fabrics of glass
fibres originating in the PRC and to make imports of certain open mesh fabrics
of glass fibres consigned from Malaysia, whether declared as originating in
Malaysia or not, subject to registration.
(3)       The request was lodged by
Saint-Gobain Adfors CZ s.r.o., Tolnatext Fonalfeldolgozo es
Muszakiszovet-gyarto Bt., Valmieras "Stikla Skiedra" AS and Vitrulan
Technical Textiles GmbH, four Union producers of certain open mesh fabrics of
glass fibres.
(4)       The request contained
sufficient prima facie evidence that following the imposition of the
measures in force, a significant change in the pattern of trade involving
exports from the PRC and Malaysia to the Union occurred, for which there was
insufficient due cause or economic justification other than the imposition of
the measures in force. This change in the pattern of trade stemmed allegedly
from the transhipment of certain open mesh fabrics of glass fibres originating
in the PRC via Malaysia.
(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 were made at prices below the
non-injurious price established in the original investigation.
(6)       Finally, there was
evidence that prices of certain open mesh fabrics of glass fibres consigned
from Malaysia were dumped in relation to the normal value established for the
like product during the original investigation.
1.3.        Initiation
(7)       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 Commission, initiated an
investigation by Commission Regulation (EU) No 1135/2011[3] (‘the initiating Regulation’). Pursuant to Articles 13(3) and 14(5)
of the basic Regulation, the Commission, by the initiating Regulation, also
directed the customs authorities to register imports of certain open mesh
fabrics of glass fibres consigned from Malaysia.
1.4.        Investigation
(8)       The Commission officially
advised the authorities of the PRC and Malaysia, 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. Questionnaires were sent to
the producers/exporters in the PRC and Malaysia known to the Commission or
which made themselves known within the deadlines specified in recital 14 of the
initiating Regulation. Questionnaires were also sent to importers in the Union.
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.
(9)       Three exporting producers
in Malaysia, and three unrelated importers in the Union made themselves known
and submitted replies to the questionnaires.
(10)     The
following exporting producers submitted replies to the questionnaires and
verification visits were subsequently carried out at their premises.
Exporting producers in Malaysia:
–              
GFTex Fiberglass Manufacturer Sdn Bhd, Selangor,
–              
Gold Fiberglass Sdn. Bhd, Selangor, and
–              
GRI Fiberglass Industries, Selangor.
1.5.        Investigation Period
(11)     The investigation period covered
the period from 1 January 2008 to 30 September 2011 (‘the IP’). Data were collected
for the IP to investigate, inter alia, the alleged change in the pattern
of trade. More detailed data were collected for the reporting period 1 October
2010 to 30 September 2011 (‘the RP’) in order to examine the possible
undermining of the remedial effect of the measures in force and existence of
dumping.
2.           RESULTS OF THE
INVESTIGATION
2.1.        General considerations
(12)     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, Malaysia 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 like product; and
whether there was evidence of dumping in relation to the normal values
previously established for the like product, if necessary in accordance with
the provisions of Article 2 of the basic Regulation.
2.2.        Product concerned and the
product under investigation
(13)     The product concerned is as
defined in the original investigation: Open mesh fabrics of glass fibres, of a
cell size of more than 1,8 mm both in length and in width and weighing more
than 35 g/m2, excluding fibreglass discs, originating in the People's
Republic of China, currently falling within CN codes ex 7019 51 00, and ex 7019
59 00.
(14)     The product under
investigation is the same as that defined in the previous recital, but
consigned from Malaysia, whether declared as originating in Malaysia or not.
(15)     The investigation showed
that open mesh fabrics of glass fibres, as defined above, exported from the PRC
to the Union and those consigned from Malaysia 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.        Degree of cooperation and
determination of the trade volumes 
Malaysia
(16)     As stated in recital (10),
three exporting producers in Malaysia submitted questionnaire replies. 
(17)     On the
spot verification visits were subsequently carried out to these three exporting
producers. 
(18)     The three Malaysian exporting
producers covered 75% of the total exports of the product under investigation from
Malaysia to the Union in the RP as reported in COMEXT[4].The overall export volumes were
based on COMEXT.
(19)     One of the three Malaysian
exporting producers, following the first day of the verification visit, ceased
cooperation therefore Article 18 of the basic Regulation was applied.
(20)     For the other two companies
the application of Article 18(1) of the basic Regulation was also found to be
warranted for the reasons explained in recitals (34) and (52) to (59) below.
People's Republic of China
(21)     There was no cooperation
from the Chinese exporting producers. Therefore, findings in respect of imports
of certain open mesh fabrics of glass fibres from PRC into the Union and
exports of the product concerned from the PRC to Malaysia had to be made
partially on the basis of facts available in accordance with Article 18(1) of
the basic Regulation. COMEXT data was used to determine overall import volumes
from the PRC to the Union. Chinese and Malaysian national statistics were used
for the determination of the overall exports from the PRC to Malaysia. Data
were also cross-checked with detailed import and export data that were provided
by the customs authorities of Malaysia. 
(22)     The import volume recorded
in Malaysian and Chinese statistics covered a larger product group than the
product concerned or the product under investigation. However, in view of
COMEXT data and the data provided by the three Malaysian exporting producers,
it could be established that a significant part of this import volume covered
the product concerned. Accordingly, these data could be used to establish a
change in the pattern of trade. 
2.4.        Change in the pattern of
trade
Imports of certain open mesh fabrics of
glass fibres into the Union
(23)     Imports of the product
concerned from the PRC to the Union dropped dramatically subsequent to the
imposition of the provisional measures in February 2011[5]]and of the definitive measures
in August 2011 (the original Regulation).
(24)     On
the other hand, total exports of the product under investigation from Malaysia
to the Union increased significantly in 2011. Based on COMEXT, exports from
Malaysia to the Union increased sharply in the last year whereas they were at insignificant
levels in previous years. The trend is also confirmed by the corresponding
Malaysian statistics with regard to exports of open mesh fabrics of glass
fibres to the Union from Malaysia. 
(25)     Table 1 shows import
quantities of certain open mesh fabrics of glass fibres from the PRC and
Malaysia into the Union from 1 January 2008 to 30 September 2011.
 Import volumes in millions of m2. || 2008   || 2009 || 2010 || 1/10/2010 – 30/9/2011 
 PRC || 307,82 || 294,98 || 383,76 || 282,03 
 Malaysia || 0,02 || 0,04 || 0,02 || 76,10 
Source: COMEXT statistics
(26)     The data above clearly show
that imports from Malaysia into the Union were at negligible levels for the
period from 2008 to 2010. However, in 2011, following the imposition of the
measures, the imports surged suddenly and to some extent 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 PRC to the Union has
been significant (26%).
Exports from the PRC to Malaysia
(27)     A dramatic increase of
exports of open mesh fabrics of glass fibres can also be observed from the PRC
to Malaysia within the same period. From a relatively small amount in 2008 (4,65
million m2) exports increased to 32,78 million m2 in the RP.
The trend is also confirmed by the corresponding Malaysian statistics with
regard to imports of open mesh fabrics of glass fibres in Malaysia from the PRC.
Table 2: Exports of open mesh fabrics of
glass fibres from the PRC to Malaysia from 1
January 2008 to 30 September 2011
   || 2008 || 2009 || 2010 || 1/10/2010 – 30/9/2011 
 Quantity (million m2) || 4,65 || 5,78 || 5,94 || 32,78 
 Yearly change (%) ||   || 24% || 2,8% || 452% 
 Index (2008=100) || 100 || 124 || 128 || 705 
Source: Chinese
statistics
(28)     To establish the trend of
the trade flow of certain open mesh fabrics of glass fibres from PRC to
Malaysia , both Malaysian and Chinese statistics were considered. Both of these
data are only available at a higher product group level than the product
concerned. However, in view of COMEXT data and the data provided by the three initially
cooperating Malaysian exporters, it could be established that a significant
part covered the product concerned. Therefore, these data could be taken into
account.
(29)     Tables 1 and 2 above clearly
demonstrate that the sharp drop of Chinese exports of open mesh fabrics of
glass fibres to the Union was followed by a significant increase of Chinese
exports of open mesh fabrics of glass fibres to Malaysia with a subsequent
drastic incease of Malaysian exports of open mesh fabrics of glass fibres to the
Union in the IP. The investigation revealed also that additional
quantities of open mesh fabrics of glass fibres from the PRC to Malaysia were
misdeclared at the time of importation to Malaysia under different codes than
the ones covered by the investigation. According to the customs import
declarations those additional quantities were declared under codes 7019 11 000
and 7019 40 000.
Production volumes in Malaysia
(30)     The three initially cooperating
companies were established between November 2010 and March 2011 and they
started production and exports to the Union only after the imposition of the
provisional measures in February 2011. Prior to February 2011 there was no
production of open mesh fabrics of glass fibres in Malaysia.
2.5.        Conclusion on the change in
the pattern of trade
(31)     The overall decrease of the
exports from the PRC to the Union and the parallel increase of exports from
Malaysia to the Union and of exports from the PRC to Malaysia after the
imposition of provisional measures in February 2011 and of definitive measures
in August 2011 constituted a change in the pattern of trade between the above
mentioned countries, on the one hand, and the Union, on the other hand.
2.6.        Nature of the circumvention
practice
(32)     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 and the assembly of parts by an assembly operation
in the Union or a third country. For this purpose the existence of assembly
operations is determined in accordance with Article 13(2) of the basic
Regulation.
Transhipment
(33)     Declared exports of the initially
cooperating Malaysian companies amounted to some 75% of the total Malaysian
exports to the Union. The remaining exports can be attributed to Malaysian
producers which have not cooperated with the investigation or to transhipment
practices. One of the cooperating importers in the Union had sourced open mesh
fabrics of glass fibres from a Malaysian exporter who had not cooperated in
this investigation. 
(34)     As set out in detail in recitals (52) to (59) below, the
three initially cooperating companies were informed on the spot that they might
be subject to the application of Article 18 of the basic Regulation as it was
found that they had provided misleading information. In particular, evidence
suggested that two of the initially cooperating exporting producers did not
disclose the relationship between them. Also, the companies manipulated and
altered documents such as bank statements while there are doubts as to whether some
of their purchase invoices, and bank payment vouchers are genuine. Also two of
them failed to demonstrate the origin of the raw materials used for the
production of open mesh fabrics of glass fibres exported to the Union. Finally,
based on information obtained by the Malaysian authorities, goods could qualify
for the certificate of origin at the time of their export if there is a change
in the code classification between the imported raw materials used in the
production process and the exported finished goods. Evidence seen during the
verification visits suggested that some quantities of open mesh fabrics of
glass fibres from the PRC are misdeclared under codes not covered by the
investigaton at the time of their importation to Malaysia while at the time of
their export to the Union they were classified under the two CN codes covered
by the investigation. This explains the additional quantities of open mesh
fabrics of glass fibres exported from Malaysia to the Union as confirmed by the
findings with regard to the change in the pattern of trade as described in
recital (29) above.
(35)     The
existence of transhipment of Chinese-origin products via Malaysia is therefore
confirmed.
Assembly and/or completion operations
(36)     As Article 18 of the basic
Regulation was applied to all three initially cooperating companies, it could
not be established whether they are involved in assembly operations. 
2.7.        Insufficient due cause or
economic justification other than the imposition of the anti-dumping duty
(37)     The investigation did not
bring to light any other due cause or economic justification for the
transhipmentthan the avoidance of the measures in force on certain open mesh
fabrics of glass fibres originating in the PRC. 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 the product
concerned from the PRC via Malaysia. 
2.8.        Undermining of the remedial
effect of the anti-dumping duty
(38)     To assess whether the
imported products had, in terms of quantities and prices, undermined the
remedial effects of the measures in force on imports of certain open mesh
fabrics of glass fibres originating in the PRC, COMEXT data was used as the
best data available concerning quantities and prices of exports by the three initially
cooperating exporting producers, where Article 18 of the basic Regulation was
applied, and by the non-cooperating companies. The prices so determined were
compared to the injury elimination level established for Union producers in
recital (74) of the original Regulation.
(39)     The increase of imports
from Malaysia to the Union from 20 000 m2 in 2010 to 76 million m2
in the period April to September 2011 was considered to be significant in terms
of quantities.
(40)     The comparison of the
injury elimination level as established in the original Regulation and the
weighted average export price (adjusted for post importation costs and quality
adjustments established in the original investigation) showed significant
underselling. It was therefore concluded that the remedial effects of the
measures in force are being undermined in terms of both quantities and prices.
2.9.        Evidence of dumping 
(41)     Finally, in accordance with
Article 13(1) and (2) of the basic Regulation it was examined whether there was
evidence of dumping in relation to the normal value previously established for
the like products.
(42)     In the original Regulation
the normal value was established on the basis of prices in Canada, which in
that investigation was found to be an appropriate market economy analogue
country for the PRC. In line with Article 13(1) of the basic Regulation it was
considered appropriate to use the normal value as previously established in the
original investigation. 
(43)     The export prices from
Malaysia was based on facts available, i.e. on the average export price of
certain open mesh fabrics of glass fibres during the RP as reported in COMEXT.
This was due to the application of Article 18 of the basic Regulation to all three
initially cooperating exporters, thus their data could not be used to establish
the export prices. 
(44)     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,
ancillary expenses, packing costs and bank charges. Taken that Article 18 of
the basic Regulation was applied to all three initially cooperating producers,
the adjustments had to be established on the best facts available. Thus, the
adjustment for these allowances was based on a percentage calculated as the
difference between the total CIF value over the total ex-works value of all the
transactions provided by the three Malaysian producers in the RP. 
(45)     In accordance with Articles
2(11) and 2(12) of the basic Regulation, dumping was calculated by comparing
the weighted average normal value as established in the original Regulation and
the weighted average export prices during this investigation’s RP, expressed as
a percentage of the CIF price at the Union frontier duty unpaid.
(46)     The comparison of the
weighted average normal value and the weighted average export price as established
showed dumping.
3.           MEASURES
(47)     Given the above, it was
concluded that the definitive anti-dumping duty imposed on imports of certain
open mesh fabrics of glass fibres originating in the PRC was circumvented by
transhipment from Malaysia pursuant to Article 13(1) of the basic Regulation.
(48)     In accordance with the
first sentence of Article 13(1) of the basic Regulation, the measures in force
on imports of the product concerned originating in the PRC, should be extended
to imports of the same product consigned from Malaysia, whether declared as
originating in Malaysia or not.
(49)     In light of the non
cooperation in this investigation, the measures to be extended should be the measures
established in Article 1(2) of Regulation (EU) No 791/2011 for "all other
companies", which is a definitive anti-dumping duty of 62,9% applicable to
the net, free-at-Union-frontier price, before duty.
(50)     In accordance with Articles
13(3) and 14(5) of the basic Regulation, which provides 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 open mesh fabrics of glass fibres consigned from
Malaysia.
4.           REQUESTS FOR EXEMPTION
(51)     The three companies in
Malaysia that submited questionnaire replies requested an exemption from the
possible extended measures in accordance with Article 13(4) of the basic
Regulation.
(52)     As mentioned in recital
(19) one of the companies ceased cooperation following the first day of the
verification visit. Even during the one day verification the cooperation was
insufficient. In particular, the company failed to provide most of the
requested supporting documents like its production sheets, stocks and energy
bills. On the other hand, the raw materials kept in the company's plant were at
very low levels not justifying the declared production levels while there were
not any finished goods stored in the warehouse. In addition, the purchase
invoices presented had the same format as a block of invoices with pre-printed
numbers found at the company's premises. This resemblance suggested that the
company's purchase invoices may not be genuine. Moreover, evidence suggested
that the company did not disclose its relationship with another Malaysian
exporter that was also cooperating in the investigation. More specifically, documents
related to the other Malaysian initially cooperating producer were found at the
first company's premises while that relationship was not revealed by those
companies. 
(53)     In accordance with Article
18(4) of the basic Regulation, the company was informed on the intention to
disregard the information submitted by it and was granted a time-limit to
provide its comments. The company did not provide any comments, thus in
accordance with Article 18(1) of the basic Regulation, findings with regard to
this company were based on facts available. 
(54)     The cooperation of the
second company during the verification visit was insufficient. The company
denied on several occasions access to crucial data such as the production and
stock record reports. The raw materials kept in the company's plant were at
very low levels compared to the declared production levels and the stock of
finished goods stored in the warehouse. The company also failed to provide
evidence with regard to the origin of the raw materials used for the production
of open mesh fabrics of glass fibres exported to the Union.
(55)     In accordance with Article
18(4) of the basic Regulation, the company was informed on the intention to
disregard the information submitted by it and was granted a time-limit to
provide its comments. In its comments the company claimed that the planned
three days for the verification visit were a short time frame and insufficient
for the company to provide all the data and documents requested by the
investigation team. The company also admitted that several times it denied
access to data to the investigation team while it confirmed that the persons
representing the company during the verification visit, most of the time, had
to obtain permission from their directors to grant access to data to the
investigation team. In addition, the company admitted that the company's representatives
had no involvement with the accounts department while it confirmed that its directors
did not participate as they claimed to be occupied.
(56)     The company's explanations
confirm the conclusion that the company seriously impeded the investigation. The
company was informed on the dates of the verification visit well in advance and
agreed with them. Despite that exports to the Union is the company's main
business, its directors, were not present. During the verification visit there
were deliberate and unjustified delays in providing the requested data and
documents while the denial of access to data created further delays and
impediments in the completion of the verification within the set time frame.
Therefore, in accordance with Article 18(1) of the basic Regulation, findings
with regard to this company were based on facts available.
(57)     The third company's
cooperation during the verification visit was insufficient while it provided
misleading information. It was found that the company had manipulated bank
statements while it failed to prove that its bank payment vouchers were genuine
documents. Its accounting records were considered unreliable as they presented
numerous serious discrepancies with regard to their opening and closing
balances carried forward. The raw materials stocks were at low levels compared
to the declared production levels and the stock of finished goods stored in the
warehouse. The company also failed to provide evidence with regard to the
origin of the raw materials used for the production of open mesh fabrics of
glass fibres exported to the Union. Also evidence suggested that the company had
not disclosed its relationship with the first Malaysian exporter as certain
documents which belong to the third company were found in the premises of the first
company.
(58)     In accordance with Article
18(4) of the basic Regulation, the company was also informed on the intention
to disregard the information submitted by it and was granted a time-limit to
provide its comments. In its comments the company claimed that it does not have
any experience with such kind of verification visits which explains in their
view, the deficiencies found. It also claimed that it was cautious with the
documents requested and provided to the investigation team in particular with
the bank statements and proof of payments as it was not officially informed by
the Malaysian authorities of the identity of the investigation team. The
company nevertheless admitted that its staff had altered the content of the
bank statements but this was allegedly done due to the fact that the company was
highly concerned with possible leaks of its documents, sabotage and the confidentiality
of its data. 
(59)     The additional explanations
provided by the company were not such that would lead to change the conclusion
that the company had provided misleading information within the course of the
investigation. Thus, in accordance with Article 18(1) of the basic Regulation,
findings with regard to this company were based on facts available.
(60)     In view of the findings
with regard to the change in the pattern of trade and transhipment practices, as
set out in recitals (31) and (35) above and taking into account the nature of
the misleading information as set out in recitals (52) to (59) above, the
exemptions as requested by these three companies could, in accordance with
Article 13(4) of the basic Regulation, not be granted.
(61)     Without prejudice to
Article 11(3) of the basic Regulation, other producers in Malaysia which did
not come forward in this proceeding and did not export the product under
investigation to the Union in the RP and which consider lodging 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 a questionnaire in
order to enable the Commission to determine whether an exemption may be
warranted. Such exemption may be granted after the assessment of the market
situation of the product concerned, production capacity and capacity utilisation,
procurement and sales and the likelihood of continuation of practices for which
there is insufficient due cause or economic justification and the evidence of
dumping. The Commission would normally also carry out an on spot verification
visit. The request should be addressed to the Commission forthwith, with all
relevant information, in particular any modification in the company's
activities linked to the production and sales.
(62)     Where an exemption is
warranted, the Commission will, after consultation of the Advisory Committee,
propose the amendment of the extended measures in force accordingly.
Subsequently, any exemption granted will be monitored to ensure compliance with
the conditions set therein.
5.           DISCLOSURE
(63)     All interested parties were
informed of the essential facts and considerations leading to the above
conclusions and were invited to comment. The oral and written comments
submitted by the parties were considered. None of the arguments presented gave
rise to a modification of the definitive findings.
(64)     One cooperating importer
asked if consideration could be given to applying different duty rates on registered
imports of open mesh fabrics of glass fibres by importers who cooperated in the
proceeding and those who did not. The request was rejected as there is no legal
basis in the basic Regulation to support such a distinction.
HAS ADOPTED THIS REGULATION:
Article 1
1. The definitive anti-dumping duty
applicable to "all other companies" imposed by Article 1(2) of
Regulation (EU) No 791/2011 on imports of open mesh fabrics of glass fibres, of
a cell size of more than 1.8 mm both in length and in width and weighing more
than 35 g/m2, excluding fibreglass discs, originating in the
People's Republic of China, is hereby extended to imports of open mesh fabrics of
glass fibres, of a cell size of more than 1.8 mm both in length and in width
and weighing more than 35 g/m2, excluding fibreglass discs,
consigned from Malaysia, whether declared as originating in Malaysia or not,
currently falling CN codes ex 7019 51 00, and ex 7019 59 00. (TARIC codes 7019
51 00 11 and 7019 59 0011).
2. The duty extended by paragraph 1 of this
Article shall be collected on imports consigned from Malaysia, whether declared
as originating in Malaysia or not, registered in accordance with Article 2 of
Regulation (EU) No 1135/2011 and Articles 13(3) and 14(5) of Regulation (EC) No
1225/2009.
3. Unless otherwise specified, the
provisions in force concerning customs duties shall apply.
Article 2 
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 04/92
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
791/2011, from the duty extended by Article 1.
Article 3
Customs authorities are hereby directed to
discontinue the registration of imports, established in accordance with Article
2 of Regulation (EU) No 1135/2011.
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
[1]               OJ L 343, 22.12.2009, p. 51.
[2]               OJ L 204, 9.8.2011, p. 1.
[3]               OJ L 292, 10.11.2011, p. 4.
[4]               COMEXT is a database on Foreign Trade Statistics
managed by EUROSTAT.
[5]               OJ L 43, 17.2.2011, p. 9.