By Implementing Regulation (EU) No 511/2010

OJ L 150, 16.6.2010, p. 17.

On 4 April 2011, the Commission received a request pursuant to Article 13(3) of the basic Regulation to investigate the alleged circumvention of the measures in force. The request was submitted by the European Association of Metals (Eurometaux) on behalf of a Union producer of certain molybdenum wires (‘the applicant’).

The request alleged that following the imposition of the measures in force, there had been a significant change in the pattern of trade between PRC, Malaysia and Switzerland on the one hand and the Union on the other. The applicant claimed that this change was due to transhipment of molybdenum wires via Malaysia or Switzerland.

The request concluded that there was insufficient due cause or economic justification for the transhipment other than the existence of the measures in force.

Finally, the applicant alleged that the remedial effects of the measures in force were being undermined both in terms of quantities and prices and that the prices of molybdenum wires from Malaysia and Switzerland were dumped when related to the normal value established in the original investigation.

Having determined, after consulting the Advisory Committee, that sufficient prima facie evidence existed for initiation of an investigation pursuant to Article 13 of the basic Regulation, the Commission initiated an investigation by Regulation (EU) No 477/2011

OJ L 131, 18.5.2011, p. 14.

The Commission officially advised the authorities of the PRC, Malaysia and Switzerland, the exporting producers and traders in those countries, the importers in the Union known to be concerned as well as the Union producers of the initiation of the investigation.

Questionnaires were sent to the producers/exporters in Malaysia, Switzerland and the PRC as well as to Union importers known to be concerned and/or mentioned in the request. 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.

One Union importer contacted the Commission, declaring that it had never purchased any molybdenum wires from outside the Union.

Two Malaysian companies submitted that during the IP referred to in recital (14) they neither manufactured nor exported to the Union any molybdenum wires.

One Swiss company declared that they were not involved in producing or selling the molybdenum wires over the past three years.

One PRC producer replied to the questionnaire indicating that, from 2009 onwards, they exported molybdenum wires neither to the Union nor to Malaysia or Switzerland.

The Commission received no comments from the PRC, Malaysian or Swiss authorities.

The investigation period covered the period from 1 April 2010 to 31 March 2011 (‘the IP’). Data was collected for the period from 2007 to the end of the IP (‘period considered’) to investigate the alleged change in the pattern of trade.

As mentioned in recital (10), only two companies in Malaysia cooperated but they did not export the product concerned to the Union during the IP. As mentioned in recital (11), only one Swiss company submitted information according to which they were not involved in producing or selling the product concerned over the past three years. Consequently, findings in the present investigation had to be based on facts available in accordance with Article 18 of the basic Regulation.

In accordance with Article 13(1) of the basic Regulation, the assessment of possible circumvention practices was made by analyzing successively: (1) whether there was a change in the pattern of trade between PRC, Malaysia and Switzerland on the one hand and the Union on the other; (2) 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; (3) 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 (4) 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.

The product concerned is as defined in the original investigation, i.e. molybdenum wire, containing by weight at least 99,95 % of molybdenum, of which the maximum cross-sectional dimension exceeds 1,35 mm but does not exceed 4,0 mm, originating in the PRC, currently falling within CN code ex 8102 96 00.

The product under investigation is the same as that defined in recital (17) but consigned from Malaysia or Switzerland, whether declared as originating in Malaysia or Switzerland or not.

As far as imports declared as originating in Switzerland are concerned, it was established, on the basis of data from Surveillance II database, that there were no imports of the product concerned to the Union during the IP.

As far as imports declared as originating in Malaysia are concerned, in the absence of cooperation, the comparison of molybdenum wires exported to the Union from PRC against molybdenum wires consigned from Malaysia to the Union was based on information available in accordance with Article 18 of the basic Regulation, including information provided in the request. No information obtained during the present investigation suggested that molybdenum wires exported to the Union from the PRC and molybdenum wires consigned from Malaysia to the Union would not have the same basic physical characteristics and the same uses. Therefore, they are considered as like products within the meaning of Article 1(4) of the basic Regulation. No submissions to the contrary were made during the investigation.

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.

The comparison of trade flows between the PRC and Malaysia on the one hand and Malaysia and the Union on the other hand indicates the existence of transhipment practices. The allegation in the request has not been contested by any operator; neither those from the PRC or Malaysia nor from the Union. It is recalled that no producers of molybdenum wires from Malaysia cooperated with this investigation.

The investigation did not bring to light any other due cause or economic justification for the transshipment than the avoidance of the measures in force. No elements were found, other than the avoidance of the payment of the duty, which could be considered as a compensation for the costs of transshipment of the product concerned from the PRC via Malaysia.

This conclusion is further corroborated by the fact that no producer of molybdenum wires from Malaysia came forward during the present investigation.

In addition, it is noted that imports from Malaysia had discontinued around the time of the publication of the initiating Regulation.

It is therefore concluded that, in the absence of any other sufficient due cause or economic justification within the meaning of the second sentence of Article 13(1) of the basic Regulation, the change in the pattern of trade between the PRC and Malaysia on the one hand and the Union on the other hand was due to the imposition of the measures in force.

To assess whether the imported products from Malaysia had, in terms of quantities and prices, undermined the remedial effects of the measures in force, data from available statistical sources as described in recital (21) were used as the best data available concerning quantities and prices of exports from Malaysia.

The increase of imports from Malaysia was considered to be significant in terms of quantities. The level of imports from Malaysia in the IP amounts to around 6 % of the level of imports of the product originating in the PRC to the Union before the imposition of measures.

The comparison of the injury elimination level as established in the original Regulation and the weighted average export price showed significant underselling. It was therefore concluded that the remedial effects of the measures in force are being undermined both in terms of quantities and prices.

In the absence of cooperation from any exporting producer, export prices were based on facts available pursuant to Article 18 of the basic Regulation. The prices available from statistical sources as described in recital (21) were considered to be the most reliable.

In accordance with Article 13(1) of the basic Regulation, it was considered appropriate that the normal value to be used in an anti-circumvention investigation is the normal value established during the original investigation. In the absence of cooperation and pursuant to Article 18 of the basic Regulation, for the purpose of comparing the export price and normal value, it was considered appropriate to assume that the product mix of the goods observed during the present investigation was the same as in the original investigation.

In the original investigation, the USA was considered to be an appropriate market economy analogue country. Since the analogue country producer made only marginal sales on the domestic US market, it was found unreasonable to use US domestic sales data for the purposes of determining or constructing normal value. Consequently, the normal value for the PRC was established on the basis of export prices from the USA to other third countries, including the Union.

In accordance with Article 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 established during this investigation’s IP, expressed as a percentage of the net, free-at-Union-frontier price, before customs duty.

The comparison of the weighted average normal value and the weighted average export prices showed dumping.