Commission Implementing Regulation (EU) 2022/1233 of 18 July 2022 amending Implementing Regulation (EU) 2020/492 imposing definitive anti-dumping duties on imports of certain woven and/or stitched glass fibre fabrics originating in the People’s Republic of China and Egypt
Commission Implementing Regulation (EU) 2022/1233of 18 July 2022amending Implementing Regulation (EU) 2020/492 imposing definitive anti-dumping duties on imports of certain woven and/or stitched glass fibre fabrics originating in the People’s Republic of China and EgyptTHE EUROPEAN COMMISSION,Having regard to the Treaty on the Functioning of the European Union,Having regard to Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European UnionOJ L 176, 30.6.2016, p. 21. ("the basic Regulation"), and in particular Article 12 thereof,Whereas:1.PROCEDURE1.1.Measures in force(1)The measures currently in force are definitive anti-dumping duties imposed by Commission Implementing Regulation (EU) 2020/492 on imports of certain woven and/or stitched glass fibre fabrics originating in the People’s Republic of China and Egypt ("the original measures")Commission Implementing Regulation (EU) 2020/492 of 1 April 2020 imposing definitive anti-dumping duties on imports of certain woven and/or stitched glass fibre fabrics originating in the People’s Republic of China and Egypt (OJ L 108, 6.4.2020, p. 1)..(2)The product under investigation is also subject to a definitive countervailing duty imposed by the Commission Implementing Regulation (EU) 2020/776Commission Implementing Regulation (EU) 2020/776 of 12 June 2020 imposing definitive countervailing duties on imports of certain woven and/or stitched glass fibre fabrics originating in the People’s Republic of China and Egypt and amending Commission Implementing Regulation (EU) 2020/492 imposing definitive anti-dumping duties on imports of certain woven and/or stitched glass fibre fabrics originating in the People’s Republic of China and Egypt (OJ L 189, 15.6.2020, p. 1).. However, the countervailing duty is not subject to this reinvestigation.1.2.Request for an absorption reinvestigation and initiation(3)The Commission received a request for an absorption reinvestigation of the anti-dumping measures in force with respect to imports from Egypt ("country concerned") pursuant to Article 12 of the basic Regulation.(4)The request was lodged on 18 October 2021 by TECH-FAB Europe e.V., an association of EU producers of glass fibre fabrics ("GFF") ("the applicants"), representing more than 25 % of the total Union production of GFF.(5)The applicants have submitted sufficient evidence showing that after the original investigation period, Egyptian export prices have decreased. The decrease in Egyptian export prices has seemingly impeded the intended remedial effects of the measures in force. The evidence contained in the request indicated that the decrease in export prices cannot be explained by a decrease of the price of the major raw material and other costs or by a change in the product mix.1.3.Reopening of the anti-dumping investigation(6)On 1 December 2021, the Commission announced the reopening of the anti-dumping investigation by a notice published in the Official Journal of the European Union ("the Notice of Reopening")Notice of reopening the anti-dumping investigation concerning imports of certain woven and/or stitched glass fibre fabrics originating in Egypt (OJ C 483, 1.12.2021, p. 29)..(7)The reinvestigation concerned the current anti-dumping duty of 20 % imposed on Jushi Egypt For Fiberglass Industry S.A.E ("Jushi Egypt"), Hengshi Egypt Fiberglass Fabrics S.A.E. ("Hengshi Egypt") (collectively referred to as "CNBM group") and on "All other companies" as set out in Article 1(2) of Implementing Regulation (EU) 2020/492Implementing Regulation (EU) 2020/492, amended by Implementing Regulation (EU) 2020/776..1.4.Interested parties(8)In the Notice of Reopening, the Commission invited interested parties to contact it in order to participate in the reinvestigation. In addition, the Commission specifically informed the applicants, exporting producers and importers known to be concerned and the authorities of the country concerned about the absorption reinvestigation and invited them to participate.(9)Interested parties were given the opportunity to make their views known in writing and to request a hearing with the Commission and/or the Hearing Officer in trade proceedings.1.5.Sampling of exporting producers in the country concerned to be reinvestigated(10)In order to enable the Commission to decide whether sampling in accordance with Article 17 of the basic Regulation would be necessary in respect of the producers in the country concerned, those parties were requested to make themselves known and to provide the Commission with the information requested in the Notice of Reopening. In addition, the Commission requested the Mission of Egypt to the European Union to identify and/or contact other producers, if any, that could be interested in participating in the reinvestigation. However, since only Jushi Egypt and Hengshi Egypt came forward, sampling was not necessary.1.6.Sampling of unrelated importers(11)In order to decide whether sampling was necessary and, if so, to select a sample, the Commission asked unrelated importers to provide the information specified in the Notice of Reopening. None of the unrelated importers came forward and sampling was therefore not necessary.1.7.Replies to the questionnaires and verifications(12)The Commission sent a questionnaire to Jushi Egypt and Hengshi Egypt, to which they replied.(13)The Commission sought all the information deemed necessary for the purpose of this reinvestigation. In view of the outbreak of COVID-19, the Commission could not carry out verification visits pursuant to Article 16 of the basic Regulation at the premises of Jushi Egypt, Hengshi Egypt and trader related to Hengshi Egypt, Huajin Capital Limited in Hong Kong. The Commission therefore cross-checked remotely all the information deemed necessary of these three companies for its determinations in line with its Notice on the consequences of the COVID-19 outbreak on anti-dumping and anti-subsidy investigationsNotice on the consequences of the COVID-19 outbreak on anti-dumping and anti-subsidy investigations (OJ C 86, 16.3.2020. p. 6)..(14)Furthermore, verification visits pursuant to Article 16 of the basic Regulation were carried out at the premises of the following importers/traders related to Jushi Egypt/Hengshi Egypt:Jushi France S.A.S, FranceJUSHI SPAIN, S.A., Spain1.8.Period covered by the absorption reinvestigation(15)The absorption reinvestigation period ("AIP") was 1 October 2020 to 30 September 2021. The original investigation period ("OIP") was 1 January 2018 to 31 December 2018.1.9.Comments on initiation(16)Following the initiation of this re-investigation the Government of Egypt ("GoE") submitted that a reinvestigation under Article 12 of the basic Regulation would be incompatible with the WTO anti-dumping agreement (ADA). The GoE claimed (i) that under WTO previsions no such review is provided for; (ii) that Article 12(3) of the basic Regulation would be incompatible with Article 9.1. ADA insofar as a lower duty cannot be imposed as a result of such reinvestigation and (iii) that measures imposed following a reinvestigation in accordance with Article 12 of the basic Regulation would also not fall within the exceptions granted by Article XX(d) of the GATT 1994.(17)The GoE also submitted that in contrast with the obligations under Article 11(3) of the ADA a reinvestigation in accordance with Article 12 of the basic Regulation does not require an investigation of injury.(18)The Commission noted that the fact that ADA does not explicitly provide for the possibility to review the dumping margin to take into account the absorption of anti-dumping duties does not mean that such a review would be WTO inconsistent. On the contrary, such review focuses on the dumping margin determination to ensure that the level of duties can adequately eliminate the effects of injurious dumping and is therefore warranted under Articles 11.1 and 11.2 of the ADA, and in full conformity with the applicable ADA rules including Article 2.(19)As regards the claim on Article 12(3) of the basic Regulation, it is noted that the present reinvestigation did not establish a lower dumping margin on imports of GFF from Egypt. The claim is therefore immaterial.(20)Concerning the requirement that the investigation should cover both dumping and injury, unlike reviews under Article 11(3), Article 12 is limited to reinvestigating the dumping margins only. In any event, in the present investigation the Commission did review the injury elimination level in order to fully comply with the relevant rules concerning the level of the duty.(21)The GoE also claimed that the measures in force had the intended remedial effect and that significant decrease in the volume of GFF imports between 2018 and 2020 proved the absence of absorption practices by the exporters. In its response to the final disclosure, GoE restated its argument that the Commission did not objectively examine the volume of the dumped imports and the effect of such imports on prices in the Union market for like products. First, Article 12 of the basic Regulation does not prevent the Commission from conducting absorption reinvestigation and from possibly increasing the antidumping measures in the event of decreasing imports from the country concerned. Second, changes in import volumes, as such, do not constitute or influence the absorption of anti-dumping duties in terms of changes in export prices. Third, while the imports of GFF into the Union decreased after the imposition of the anti-dumping duties, they remain sizeable and, as a matter of fact, one of the two exporting producers doubled its exports to the Union in the AIP. Hence, this claim is rejected.(22)Vestas Wind Systems A/S ("Vestas"), a GFF user, submitted during the reinvestigation that based on its records, both the FOB price and the landed costs Vestas paid for GFF imported from Egypt to the Union have increased. In this respect, the Commission noted the following. First, the Commission’s assessment of export sales is based on collected and verified sales data provided by the exporting producers which show a decrease in export prices in the AIP as compared to the OIP. Second, the Commission’s assessment is based on totality of sales to all independent customers in the Union during the AIP and OIP respectively and is not limited to analysis of sales to individual customers. Therefore, the claim raised by Vestas is rejected.(23)Furthermore, Vestas argued that that imposing or increasing anti-dumping duties on GFF is directly contrary to the interest of the Union. It is noted that the current reinvestigation is limited to the determination whether export prices have decreased or whether there has been no movement, or insufficient movement, in resale prices or subsequent selling prices in the Union of the product under investigation since the imposition of the original measures and subsequently, if applicable to recalculate the dumping margin based on the re-assessed export prices. In accordance with Article 12 of the basic Regulation such reinvestigation does not include Union interest’s aspects. Therefore, the claim is dismissed.2.PRODUCT UNDER INVESTIGATION(24)The product under investigation is fabrics of woven and/or stitched continuous filament glass fibre rovings and/or yarns with or without other elements, excluding products which are impregnated or pre-impregnated (pre-preg) and excluding open mesh fabric with cells with a size of more than 1,8 mm in both length and width and weighing more than 35 g/m2, originating in Egypt currently falling under CN codes ex70196100, ex70196200, ex70196300, ex70196400, ex70196500, ex70196600, ex70196910, ex70196990 and ex70199000 (TARIC codes 7019610081, 7019610083, 7019610084, 7019620081, 7019620083, 7019620084, 7019630081, 7019630083, 7019630084, 7019640081, 7019640083, 7019640084, 7019650081, 7019650083, 7019650084, 7019660081, 7019660083, 7019660084, 7019691081, 7019691083, 7019691084, 7019699081, 7019699083, 7019699084, 7019900081, 7019900083 and 7019900084) ("the product under investigation").3.FINDINGS OF THE ABSORPTION REINVESTIGATION(25)The absorption reinvestigation pursuant to Article 12 of the basic Regulation aims at establishing whether or not export prices have decreased or whether there has been no movement, or insufficient movement, in resale prices or subsequent selling prices in the Union of the product under investigation since the imposition of the original measures. As a second step, if it is concluded that the measure should have led to movements in such prices, then, in order to remove the injury previously established in accordance with Article 3 of the basic Regulation, export prices shall be reassessed in accordance with Article 2 of the basic Regulation and dumping margins shall be recalculated to take account of the reassessed export prices.3.1.Decrease of export prices(26)In this case, both exporting producers exported to the Union either directly to independent customers or through related companies and the Commission analysis focused accordingly on the evolution of export prices in the AIP as compared to the OIP.(27)When establishing whether there was a decrease in export prices, the Commission established for each examined company its cost, insurance and freight (CIF) export prices at the Union custom border during the AIP and compared these prices to the corresponding export prices determined in the OIP.(28)The Commission compared for each of the exporting producer the prices of the product types sold in the AIP with the same product types sold in the OIP and calculated for them the weighted average price difference.(29)The above comparison made for the two related exporting producers resulted in a weighted average export price decrease of 12 % for CNBM group, indicating prima facie that absorption of the measures in force was taking place.(30)Therefore, dumping margins were recalculated, according to Article 2 of the basic Regulation.3.2.Dumping3.2.1.Introduction(31)After having established possible absorption for CNBM group, the dumping margin was recalculated, according to Article 2 of the basic Regulation.(32)With respect to the export prices, the export prices for the AIP, collected and verified or cross-checked in the framework of this reinvestigation were used, pursuant to Article 12(2) of the basic Regulation.(33)In this case, both related exporting producers exported to the Union either directly to independent customers or through related companies, established in Hong Kong or the Union.(34)Where the exporting producers exported the product under investigation directly to independent customers in the Union, the export price was the price actually paid or payable for the product under investigation when sold for export to the Union, in accordance with Article 2(8) of the basic Regulation.(35)Where the exporting producers exported the product under investigation to the Union through a related company acting as an importer, the export price was established on the basis of the price at which the imported product was first resold to independent customers in the Union, in accordance with Article 2(9) of the basic Regulation. In that case, adjustments to the price were made for all costs incurred between importation and resale including SG&A expenses of the related importers located in the Union, and reasonable profit (established at 5 % in the original investigation).(36)Normal values as established in the original investigation are used for the calculation of dumping margins during the AIP, unless revision of the normal value taking into account changes in the AIP is requested under Article 12(5) of the basic Regulation.(37)In the present case, the exporting producers did not request a revision of the normal value. Therefore, the normal values used to recalculate the dumping margin in this case are the ones established in the original investigation.(38)For Jushi Egypt, all product types sold in the AIP were also sold in the OIP and hence all normal values were readily available. For Hengshi Egypt, two product types sold in the AIP were not sold in the OIP. Normal value for those two products was therefore replaced by the normal value for the most closely resembling product types sold by Hengshi Egypt in the original investigation.(39)Hengshi Egypt claimed in its reply to the final disclosure that for one of the product types, it is inappropriate to use the normal value from the OIP, given that such product type was only made as part of a trial production and sold in a small quantity as a sample. Instead, Hengshi Egypt suggested that the normal value from the OIP for another, allegedly nearest product type be used.(40)First, it is noted that the original investigation established that the product type in question was produced for commercial use and the normal value for the said product type was duly established and used for dumping margin calculation in the OIP. None of these determinations were contested by Hengshi Egypt in the original investigation. Second, using arbitrarily a normal value for a different product type, while the established and previously uncontested normal value for the matching product type is available would be unfounded. The statements made by the company following the final disclosure could also not be verified. The Commission therefore maintains that the normal value for the product type produced and commercially sold in the OIP (albeit in limited quantities) and corresponding to the product type sold to the Union in the AIP is the closest and most reliable proxy to be used for dumping calculations in this case.(41)In addition, although Hengshi Egypt could have requested a revision of the normal value based on Article 12(5) of the basic Regulation, if it considered that changes in normal values occurred in the AIP that merited re-examination, it did not do so. Nevertheless, while Article 12(5) of the basic Regulation allows for an en bloc revision of the normal value, it does not allow for a selective reassessment for only one or a few select product types. In light of the above, the claim raised by Hengshi Egypt has to be rejected.(42)In response to the final disclosure, Jushi Egypt disagreed to treat both Jushi Egypt as well as Hengshi Egypt jointly for the purposes of applying Article 12(5) of the basic Regulation on revision of normal values. Jushi Egypt suggests that the Commission should have accepted its individual request for reassessment of the normal value.(43)Jushi Egypt submitted that while it itself contributed to the alleged export price decrease for the whole CNBM group, Hengshi Egypt’s export prices remained at the same level as during the OIP. The decrease in Jushi Egypt’s export prices, however, would be the result of Jushi Egypt’s effort in lowering its costs in the AIP, and there would therefore be an equal effect of the decrease in costs on the normal value. In conclusion, Jushi Egypt argues that therefore its export prices were not absorbed and consequently neither the export prices of the CNBM group. Moreover, according to Jushi Egypt, the single dumping margin for the company group should have been based on the revised dumping margin for Jushi Egypt and the original dumping margin for Hengshi Egypt.(44)First, as outlined in recital (29), it is noted that an export price decrease of 12 % was established for the CNBM group comprising both Jushi Egypt and Hengshi Egypt, which led to the recalculation of dumping margins for both producing entities pursuant to Article 12(2) of the basic Regulation.(45)Second, it is recalled that the CNBM group explicitly stated that it would not seek revision of the normal value for their related exporting producers, Jushi Egypt and Hengshi Egypt. The Commission subsequently proceeded, in accordance with Article 12 of the basic Regulation, with recalculating the dumping margins based on the normal values from the OIP.(46)Third, pursuant to Article 9(5), second subparagraph of the basic Regulation, suppliers with existing structural and corporate links may be considered as a single entity for the purpose of specifying the antidumping duty. This implies that a uniform approach at the level of the group of related producers is to be adopted also in applying Article 12(5) and in conducting absorption reinvestigations. Otherwise, disparate approaches applied to individual exporting producers belonging to the same group already at preliminary stages of absorption reinvestigations could result in a distorted outcome of the reinvestigations and situations, where the exporting producers escape application of (increased) antidumping duties. It is further noted with regards to the treatment of Jushi Egypt and Hengshi Egypt as pertaining to the same corporate group that the approach taken by the Commission in this reinvestigation is fully consistent with the approach adopted in the original investigation. For the reasons set out above, Jushi Egypt’s claim has to be rejected.3.2.2.Comparison(47)The Commission compared the normal value and the export price of the two cooperating exporting producers on an ex-works basis.(48)Where justified by the need to ensure a fair comparison, the Commission adjusted the normal value and/or the export price for differences affecting prices and price comparability, in accordance with Article 2(10) of the basic Regulation. Adjustments in this case were made for transport, insurance, handling, loading costs, credit cost and bank charges.(49)Furthermore, during the AIP, Hengshi Egypt exported GFF to the Union also through a related trader located outside the Union, in Hong Kong. Therefore, an adjustment under Article 2(10)(i) was also made for sales through that related trading company in line with the original investigation. The adjustment consisted of the deduction of SG&A of the trading company and a 5 % profit (as established in the original investigation).3.2.3.Dumping margin(50)In order to establish the dumping margin for the two cooperating exporting producers, the Commission compared the weighted average normal value of each type of the like product with the weighted average export price of the corresponding type of the product under investigation, on an ex-works basis, in accordance with Article 2(11) and (12) of the basic Regulation.(51)As the two cooperating producers were related, a single dumping margin was established based on the weighted average of their individual dumping margins.(52)On this basis, the weighted average dumping margins expressed as a percentage of the CIF Union frontier price, duty unpaid, developed as follows:
Company name
Dumping margin in OIP (%)
Dumping margin in AIP (%)
Increase of the dumping margin (p.p.)
CNBM group
20
33,1
13,1
3.2.4.Injury elimination level(53)The Commission then determined the injury elimination level based on a comparison of the weighted average import price of CNBM group established in the AIP with the weighted average non-injurious price of the like product sold by the sampled Union producers on the Union market as established during the OIP. Any difference resulting from this comparison was expressed as a percentage of the weighted average import CIF value.(54)On that basis, the injury margin for CNBM group increased from 63,9 % to 109,3 %.(55)In response to the final disclosure. CNBM group and GoE claimed with reference to the decreasing level of imports from Egypt and the resulting decrease of CNBM market share in the Union that the anti-dumping measures in place have already well protected the Union industry, which has recovered or had opportunity to recover from the alleged material injury. Referring to a parallel anti-circumvention investigationSee Commission Implementing Regulation (EU) 2021/2230 of 14 December 2021 initiating an investigation concerning possible circumvention of the anti-dumping measures imposed by Commission Implementing Regulation (EU) 2020/492 on imports of certain woven and/or stitched glass fibre fabrics originating in People’s Republic of China and Egypt by imports of certain woven and/or stitched glass fibre fabrics consigned from Turkey, whether declared as originating in Turkey or not, and making such imports subject to registration (OJ L 448, 15.12.2021, p. 58). the CNBM group also claimed that selling prices of the Union producers were allegedly increasing, showing that the Union industry had recovered from the material injury suffered. CNBM group further contested the methodology used by the Commission in computing the undercutting and underselling margins, referring to their submissions in the original investigation as well as two judgments of the Court of Justice in this regardCase T-242/19, Giant Electric Vehicle Kunshan v. Commission, ECLI:EU:T:2022:259, paragraph 90; Cases T-30/19 and T-72/19, CRIA and CCCMC v. Commission, ECLI:EU:T:2022:266, paragraph 153.. Moreover, GoE submitted in response to the final disclosure that in reviewing the injury elimination margin, the Commission used a different level of trade to compare prices and thus failed to act consistently with Article 3 of the ADA on fair comparison.(56)As set out in recital (20), the present reinvestigation is limited to dumping aspects only. The injury elimination level was recalculated solely in order to fully comply with the relevant rules concerning the level of the duty and cannot affect the outcome of this reinvestigation, as the duties in both the original investigation as well as in this reinvestigation are set at the level of the dumping margin (see recital (58) for more details). Regarding to the use of information from a parallel investigation, it is to be noted that CNBM refers to a different investigation and to information that is not available on the case file in the present case. Hence even if such information were to be relevant for the purposes of this case (which is not), it could not be used in this case. In the light of the above, the CNBM group’s and GoE’s claims have to be rejected.4.CONCLUSION(57)The dumping margin calculated for the AIP increased compared to that established in the OIP. Hence, anti-dumping measures imposed on imports of the product under investigation by the CNBM group should be amended in accordance with Article 12(3) of the basic Regulation.(58)In accordance with Article 9(4) of the basic Regulation, the amount of the duties should be set at the level of the dumping margin. In the original anti-subsidy investigationImplementing Regulation (EU) 2020/776., the Commission did not countervail any export contingent subsidy schemes in accordance with Article 24(1) of Regulation (EU) 2016/1037 of the European Parliament and of the CouncilRegulation (EU) 2016/1037 of the European Parliament and of the Council of 8 June 2016 on protection against subsidised imports from countries not members of the European Union (OJ L 176, 30.6.2016, p. 55). (the basic Anti-subsidy Regulation) . Therefore, the countervailing duty does not need to be deducted in order to determine the new anti-dumping duty.(59)Consequently, the revised rate of anti-dumping duty applicable, before duty, to the net free-at-Union-frontier price will be as follows:
Company
Definitive dumping margin
CNBM group
33,1 %
All other companies
33,1 %
(60)In reply to the final disclosure, the applicants submitted that, because of the massive increase in undercutting, the Commission should use its full discretion and double the anti-dumping duty.(61)It is observed that the Commission acted in conformity with Article 9(4), 12(2) and 12(3) of the basic Regulation by recalculating the dumping margin to take account of the lower export prices and setting the revised antidumping duty at the level of the established dumping margin. The Commission is bound by the said provisions and contrary to the applicants’ claim does not enjoy any discretion in setting the duty beyond the level of the dumping margin in this case. Therefore, the applicants’ claim has no legal foundation and has to be dismissed.(62)On 17 May 2022, the Commission disclosed the essential facts and considerations on the basis of which it intended to impose a definitive anti-dumping duty on imports of GFF originating in Egypt. All parties were granted a period within which they could make comments on the disclosure. The comments submitted by interested parties were considered and taken into account where warranted.(63)The measures provided for in this Regulation are in accordance with the opinion of the Committee established by Article 15(1) of Regulation (EU) 2016/1036.HAS ADOPTED THIS REGULATION: