5.6.2015   

EN

Official Journal of the European Union

L 139/1

(1)

According to Article 22(1) of Commission Regulation (EC) No 340/2008 (2), the fees and charges provided for in that Regulation shall be reviewed annually by reference to the inflation rate as measured by means of the European Index of Consumer Prices as published by Eurostat pursuant to Council Regulation (EC) No 2494/95 (3).

(2)

In consequence of this annual review, conducted in 2014, those fees should be adjusted in accordance with the applicable average annual inflation rate, as published by Eurostat, of 1,5 % for the year 2013.

(3)

The adjustment of fees and charges is fixed at such a level that the revenue derived from those fees and charges, when combined with other sources of the Agency's revenue pursuant to Article 96(1) of Regulation (EC) No 1907/2006, is sufficient to cover the cost of the services delivered.

(4)

The Management Board of the Agency should, within the powers conferred to it by Regulation (EC) No 1907/2006, continue monitoring the efforts pursued by the Agency for efficiency gains to achieve the best relationship between resources employed and results achieved. The Commission should have regard to the opinion of the Management Board when next reviewing the Agency's fees and charges according to Article 22(1) of Commission Regulation (EC) No 340/2008.

(5)

Regulation (EC) No 340/2008 should therefore be amended accordingly.

(6)

For reasons of legal certainty, this Regulation should not apply to valid submissions that are pending on the date of entry into force of this Regulation.

(7)

The measures provided for in this Regulation are in accordance with the opinion of the Committee established under Article 133 of Regulation (EC) No 1907/2006,

5.6.2015   

EN

Official Journal of the European Union

L 139/12

(1)

Following an anti-dumping investigation (‘the original investigation’), the Council imposed by means of Council Regulation (EC) No 383/2009 (2) as last amended by Implementing Regulation (EU) No 986/2012 (3), a definitive anti-dumping duty on imports of certain pre- and post-stressing wires and wire strands of non-alloy steel (PSC wires and strands) originating in the People's Republic of China (‘China’).

(2)

The measures took the form of an ad valorem duty rate of 46,2 %, with the exception of Kiswire Qingdao, Ltd (0 %) as well as Ossen Innovation Materials Co. Joint Stock Company Ltd and Ossen Jiujiang Steel Wire Cable Co. Ltd (both 31,1 %).

(3)

Following the publication of a notice of impending expiry (4) of the anti-dumping measures in force, the Commission received on 7 February 2014 a request for the initiation of an expiry review of these measures pursuant to Article 11(2) of the basic Regulation.

(4)

The request was lodged by the European Stress Information Service (‘ESIS’) (‘the applicant’) on behalf of producers representing more than 25 % of the total Union production of certain PSC wires and strands.

(5)

The request was based on the grounds that the expiry of the measures would be likely to result in recurrence of dumping and injury to the Union industry.

(6)

Having determined, after consulting the Committee established by Article 15(1) of the basic Regulation, that sufficient evidence existed for the initiation of an expiry review, the Commission announced on 8 May 2014, by a notice published in the Official Journal of the European Union  (5) (‘Notice of initiation’), the initiation of an expiry review pursuant to Article 11(2) of the basic Regulation.

(7)

The investigation of the likelihood of continuation or recurrence of dumping and injury covered the period from 1 April 2013 to 31 March 2014 (the ‘review investigation period’ or ‘RIP’). The examination of the trends relevant for the assessment of the likelihood of a continuation or recurrence of injury covered the period from 1 January 2010 to the end of the review investigation period (the ‘period considered’).

(8)

The Commission officially advised the applicant, Union producers, exporting producers in China, importers and users in the Union known to be concerned and the representatives of China of the initiation of the expiry review. Interested parties were given the opportunity to make their views known in writing and to request a hearing within the time limit set out in the Notice of initiation.

(9)

In view of the apparent large number of exporting producers in China and unrelated importers in the Union, the Commission stated in the Notice of initiation that it might sample those interested parties in accordance with Article 17 of the basic Regulation.

(10)

In its Notice of initiation, the Commission announced that it had provisionally selected a sample of Union producers. The Commission selected the sample on the basis of the production of the like product. This sample consisted of five Union producers. The sampled Union producers accounted for 64 % of the total production of the Union industry in the review investigation period. The Commission invited interested parties to comment on the provisional sample but did not receive any comment. The provisional sample was therefore confirmed and is considered representative of the Union industry.

(11)

In order to enable the Commission to decide whether sampling would be necessary in respect of the exporting producers in China and of the unrelated importers in the Union, those parties were requested to make themselves known and to provide the Commission with the information requested in the Notice of initiation. However, as none of these parties came forward, sampling was not necessary for exporting producers and unrelated importers.

(12)

The Commission sought and verified all the information deemed necessary for the determination of the likelihood of continuation or recurrence of dumping, likelihood of continuation or recurrence of injury, and of the Union interest.

(13)

To this end, the Commission sent questionnaires to all parties known to be concerned and to all other parties that so requested within the deadlines set out in the Notice of initiation, namely known exporting producers in China, known producers in eight market economy third countries for which there are indications that production of the like product is taking place, sampled Union producers and known users in the Union.

(14)

Questionnaire replies were received from the five sampled Union producers and 12 additional producers. One questionnaire reply was received from a user. Eleven users and three suppliers made written submissions. No Chinese exporting producer replied to the questionnaire. Three questionnaire replies were received from producers in market economy third countries.

(15)

Verification visits were carried out at the premises of the following companies:

(16)

The product concerned is not plated or not coated wire of non-alloy steel, wire of non-alloy steel plated or coated with zinc and stranded wire of non-alloy steel whether or not plated or coated with not more than 18 wires, containing by weight 0,6 % or more of carbon, with a maximum cross-sectional dimension exceeding 3 mm, currently falling within CN codes ex 7217 10 90, ex 7217 20 90, ex 7312 10 61, ex 7312 10 65 and ex 7312 10 69 and originating in China. Galvanised (but not with any further coating material) seven wire strands in which the diameter of the central wire is identical to or less than 3 % greater than the diameter of any of the six other wires are not covered by the measures currently in force and are not subject to this review.

(17)

The product concerned is mostly used as a concrete reinforcement by the construction industry but can also be found in suspension elements and in stay cable bridges. It is produced from high carbon steel wire rods which are cleaned, drawn, heated and — in case of strands — wound together helicoidally to achieve specific characteristics of diameter, resistance and stability.

(18)

The review investigation confirmed that the PSC wires and strands produced and sold by the Union industry in the Union, those produced and sold on the domestic market in South Africa, which served as an analogue country, and those produced in China and potentially sold to the Union have essentially the same basic physical and technical characteristics and the same basic use.

(19)

Therefore these products are considered to be like products within the meaning of Article 1(4) of the basic Regulation.

(20)

In accordance with Article 11(2) of the basic Regulation, the Commission examined whether the expiry of the existing measures would be likely to lead to a continuation or recurrence of dumping from China.

(21)

China exported negligible quantities of the product concerned during the review investigation period. Therefore, there is no likelihood of continuation of dumping for China. The assessment was limited to the likelihood of recurrence of dumping using export prices to other third countries.

(22)

As stated in recital 14 above, the Commission received no reply from Chinese exporting producers. Thus, in the absence of cooperation from exporting producers in China, the overall analysis, including the dumping calculation, is based on facts available pursuant to Article 18 of the basic Regulation. The Chinese authorities were accordingly informed of the Commission's intention to apply Article 18 of the basic Regulation and to base its findings on facts available.

(23)

Therefore, the likelihood of recurrence of dumping was assessed by using the information in the expiry review request, combined with other sources of information such as trade statistics on imports and exports (Eurostat, Chinese and other third country statistics) and industry reports.

(24)

In accordance with Article 2(7)(a) of the basic Regulation China is not considered a market economy country. In the original investigation Turkey was used as a market economy third country for the purpose of establishing the normal value (‘analogue country’).

(25)

In the Notice of initiation the Commission: (i) envisaged using Turkey again as an analogue country in this expiry review, as suggested by the applicant; (ii) identified other market economy third countries exporting PSC wires and strands to the Union that is Brazil, India, Russia, South Africa, South Korea, and Thailand. These countries had the highest levels of imports of PSC wires and strands to the Union in 2013 (based on Eurostat data).

(26)

The Commission examined whether there is production and sales of PSC wires and strands in those market economy third countries for which there are indications that production of PSC wires and strands is taking place. The Commission contacted producers and their industry associations in seven steel producing countries referred to in the Notice of initiation and in the USA.

(27)

The Commission received questionnaire replies from producers in India, South Africa and Turkey. The applicant has submitted an objection to use India as analogue country claiming that its domestic market is distorted by government subsidies which benefit steel industry. The Commission did not receive comments from other interested parties.

(28)

The Commission concluded that South Africa was the most appropriate analogue country in the present review based on the following elements:

(29)

The information received from the cooperating producer in the analogue country was used as a basis for the determination of the normal value for China, pursuant to Article 2(7)(a) of the basic Regulation.

(30)

The Commission first examined whether the total volume of domestic sales of the cooperating producer in the analogue country was representative. The domestic sales of the like product to independent customers represented at least 5 % of total export sales volume of PSC wires and strands to third countries used in the dumping calculation during the review investigation period. On this basis, the total domestic sales of the like product of the cooperating producer of the like product on the domestic market in the analogue country were representative.

(31)

The Commission subsequently identified the product types sold domestically that were identical or comparable with the product types sold for export to the third countries used in the dumping calculation.

(32)

The Commission next defined the proportion of profitable sales to independent customers on the domestic market for each product type during the review investigation period in order to decide whether to use actual domestic sales for the calculation of the normal value, in accordance with Article 2(4) of the basic Regulation.

(33)

The normal value is based on the actual domestic price per product type, irrespective of whether those sales are profitable or not, if:

(34)

In this case, the normal value is the weighted average of the prices of all domestic sales of that product type during the review investigation period.

(35)

The normal value is the actual domestic price per product type of only the profitable domestic sales of the product types during the review investigation period, if:

(36)

For one product type, where no domestic sales were found on the domestic market of the analogue country, the normal value has been constructed by adding to the weighted average of the manufacturing cost of the like product a certain amount for selling, for general and administrative costs and for profit, in accordance with Article 2(3) of the basic Regulation.

(37)

Pursuant to Article 2(6) of the basic Regulation, this amount was based on actual data pertaining to production and sales, in the ordinary course of trade, of the like product, by the cooperating producer in the analogue country.

(38)

In the absence of cooperation of any Chinese exporting producer, the export prices had to be based on facts available, in accordance with Article 18 of the basic Regulation.

(39)

The Commission analysed the statistics from Eurostat. The imported quantities of the product imported from China were very limited and, thus, their prices were considered unrepresentative.

(40)

The Commission analysed the Chinese trade statistics. These statistics classified the product concerned under HS codes which included other products of significantly higher value such as stainless steel products and steel wire ropes. The Commission therefore considered that the Chinese trade statistics could not be used in order to establish the likely export price of the product concerned.

(41)

The Commission selected the largest country destinations of the Chinese exports made under the HS codes including the product concerned (Brazil, Japan, Malaysia, South Korea, the USA, and Vietnam). The Commission further examined whether the import statistics of these countries enabled to identify PSC wires and strands as the product concerned and showed that such PSC wires and strands had been imported in significant volumes. As only the trade statistics of some of these countries met these two criteria, the likely export price was established on the basis of such trade statistics on imports from China.

(42)

The comparison between the normal value and the likely export price was made on an FOB China basis.

(43)

In order to ensure a fair comparison account was taken of differences which affect price comparability in accordance with Article 2(10) of the basic Regulation. Allowances for differences in transport costs, insurance costs, non-refundable VAT, export costs, rebates and discount were made where applicable.

(44)

On the basis of the above, the likely dumping margin within the meaning of Article 11(2) of the basic Regulation was 27,2 %.

(45)

In the absence of cooperation from any Chinese exporting producer, the following sources have been used:

(46)

The Chinese steel industry is known as being by far the biggest in the world. According to information provided by the applicant, China had an annual output of between 2,5 and 3 million tonnes for PSC wires and strands in 2013 and an estimated capacity of between 4 and 5 million tonnes. Out of this production between 1 and 1,5 million tonnes were exported to third countries and between 1 and 2 million tonnes were sold on the domestic market. Imports of PSC wires and strands into China were negligible. Unused spare production capacity in China (that is between 1,5 and 2 million tonnes) is at least 3 times the size of the Union market.

(47)

The applicant estimated itself that the production capacity of PSC wires and strands in China exceeds by far 11 million tonnes per year. With domestic and export sales between 6 and 7 million tonnes per year the total spare capacity would then exceed 4 million tonnes.

(48)

In this regard, before the measures were imposed, imports from China increased seven-fold within 3 years, reaching close to 87 000 tonnes (that is 8,2 % of the consumption during the original investigation but 17 % of the consumption of the Union market in the review investigation period).

(49)

Thus, should measures be repealed, there is a substantial risk that Chinese exporting producers will sell significant quantities of PSC wires and strands to the Union market.

(50)

In the absence of cooperation from any Chinese exporting producer, findings are based on facts available. The assessment of the risk for trade diversion to the Union market should measures be repealed is based on publicly available sources.

(51)

The Union market is substantial and was worth an estimated 365 million EURO in the review investigation period. In addition, compared to the Union industry's average sales price, the level of undercutting by Chinese exports to the relevant third countries referred to in recital 41 was established by this investigation at 47 %. These price differentials certainly show the attractiveness of the Union market and the ability of the Chinese to compete by price should measures be repealed.

(52)

Following disclosure the interested parties provided elements that, in addition to the prices on the Union market, demonstrate the attractiveness of the Union market. These include:

These elements show that price is not the only element making the Union an attractive market for Chinese exporters.

(53)

In light of the above, the Commission concluded that there is a significant risk of trade diversion from less attractive third countries to the Union market should measures be repealed.

(54)

The available spare capacity in China and the attractiveness of the Union market lead to the conclusion that there is a risk of significant increase in Chinese dumped exports of the product concerned should the measures in force be allowed to lapse.

(55)

The like product was manufactured by 21 Union producers during the period considered. These 21 companies constitute the ‘Union industry’ within the meaning of Article 4(1) of the basic Regulation.

(56)

The Commission established the Union consumption by adding the Union industry's sales on the Union market to the imports from China and other third countries using Eurostat data at TARIC (integrated tariff of the European Union) code level.

(57)

On this basis, Union consumption developed as follows:

Table 1

Union consumption

(58)

Union consumption declined by 12 % over the period considered. This contraction of demand occurred mainly in 2011-2012 and reflects a general trend across the construction sector in the aftermath of the financial crisis.

(59)

The volume and market share of imports from China were established on the basis of Eurostat data.

(60)

The import volume into the Union from the country concerned and market share developed as follows:

Table 2

Import volume and market share of China

(61)

The imposition of anti-dumping measures almost stopped Chinese imports. Over the period considered, imports from China were very low, decreasing from 676 tonnes in 2010 (0,1 % of the Union market) to 99 tonnes during the review investigation period.

(62)

The very few sales of the product concerned from China to the Union during the review investigation period could not be used to draw any meaningful conclusion.

(63)

As it was not possible to use the Chinese trade statistics concerning Chinese exports to other markets (see recital 40 above), the likely export price was established on the basis of certain third countries trade statistics concerning imports of PSC wires and strands from China (see recital 41 above).

(64)

A comparison was made between the prices of the like product produced and sold by the Union industry and the prices of PSC wires and strands produced in China sold to certain third countries, adjusted to CIF at Union frontier level.

(65)

The price comparison showed a significant likely undercutting margin of 47 %.

(66)

The volume, market share and prices of imports from other third countries developed as follows:

Table 3

Import volume and market share of other third countries

(67)

Imports from other third countries except China held a relatively stable market share between 4,6 % and 5,9 % during the period considered. More than half of these imports came from Thailand and South Africa. Other exporting countries included India, Russia and Ukraine.

(68)

In accordance with Article 3(5) of the basic Regulation, the Commission examined all economic factors and indices having a bearing on the state of the Union industry.

(69)

The total Union production, production capacity and capacity utilisation developed over the period considered as follows:

Table 4

Production, production capacity and capacity utilisation

(70)

The Union production declined by 12 % over the period considered. Due to the stability of the market share of the Union industry, the production followed closely the evolution of the consumption of the product concerned in the Union market.

(71)

The Union industry reacted to this contraction of the volumes of production by pursuing a significant effort of restructuring. The restructuring led to a reduction of 18 % of the production capacity over the period considered, which exceeded the reduction in demand.

(72)

As a result, the capacity utilisation improved from 66 % to 70 % during the period considered. It nevertheless remained below its optimum levels, which suggests the persistence of excess capacity in the Union industry.

(73)

The Union industry's sales volume and market share in the Union developed over the period considered as follows:

Table 5

Sales volume and market share

(74)

Sales volume of the like product by the Union industry declined 12 % over the period considered in line with the evolution of the Union consumption.

(75)

The market share of the Union industry remained broadly stable over the period considered. The average price of the Union industry was 10 % below the average price of the imports from third countries in the last 3 years of the period under review and broadly equivalent before.

(76)

The sales volume of the Union industry declined in the same proportion as the Union consumption, which translated into a stable market share of 95,2 %.

(77)

Employment and productivity developed over the period considered as follows:

Table 6

Employment and productivity

(78)

As a consequence of the restructuring of the industry, employment of the Union industry decreased significantly during the period considered, moving from 1 580 employees in 2010 to 1 267 employees in the review investigation period.

(79)

Productivity increased by 9 % over the period considered. This was due to a fastest decline of employment than Union production.

(80)

The average sales prices of the Union industry to unrelated customers in the Union developed over the period considered as follows:

Table 7

Average sales prices in the Union

(81)

The Union industry's average unit selling price to unrelated customers in the Union decreased by 5 % over the period considered. The increase between 2010 and 2011 and subsequent decrease in the following year primarily reflected the increased cost of the raw material. The decline in price which followed is more related to the price pressure resulting from the combined effect of the depression of the Union consumption and the existence of excess capacity in the Union industry.

(82)

Unit cost of production decreased by 7 % over the period considered. As mentioned above, the increase observed in the first 2 years resulted from an increase of the cost of raw material. Due to significant efforts of restructuring, improvement of capacity utilisation and productivity, the industry managed to balance costs of production and average sales price in the review investigation period.

(83)

The average labour costs of the Union industry developed over the period considered as follows:

Table 8

Average labour cost per employee

(84)

The average labour costs per employee raised by 6 %. Beyond the effect of inflation, this is mainly indicative of the concentration of job losses in countries with low salary costs and of the efforts made to improve productivity.

(85)

Stock levels of the Union industry developed over the period considered as follows:

Table 9

Inventories

(86)

Overall closing stocks increased by 8 % over the period considered. However, closing stocks as a percentage of production remained at a stable and low percentage of the Union production.

(87)

Profitability, cash flow, investments and return on investments of the Union industry developed over the period considered as follows:

Table 10

Profitability, cash flow, investments and return on investments

(88)

The Commission established the profitability of the Union industry by expressing the pre-tax net profit of the sales of the like product to unrelated customers in the Union as a percentage of the turnover of those sales. Overall the profitability of the sampled producers improved during the period considered from a very low base of – 3,2 % to reach a break-even point in the review investigation period.

(89)

The net cash flow is the Union industry's ability to finance their activities. The net cash flow showed the same trend as profitability that is a continuous improvement over the period considered, with a marked improvement in the last three periods until the review investigation period.

(90)

The investments decreased by 48 % over the period considered. They mainly represented the investments necessary for maintenance.

(91)

As with the other financial indicators, the return on investment from the production and sale of the like product was negative but improved since 2011. The difference in percentage terms with the other financial indicators express the low capital intensity of the Union industry and the decrease in net assets due to the limited level of investments.

(92)

In an economic context characterised by a restricted access to financing, especially for industries related to the construction sector, and taking into account the financial situation of the Union Industry, its ability to raise new capital was extremely limited.

(93)

The investigation established a likelihood of recurrence of dumping at significant margins. Therefore, the magnitude cannot be considered to be negligible.

(94)

The macro-indicators examined above show that, although the anti-dumping measures have partially achieved their intended result of removing injury suffered by the Union producers, the industry is still very fragile and vulnerable. Indeed, over the period considered the production volume decreased by 12 %, sales volume to unrelated customers in the EU decreased by 12 % and employment decreased by 20 %. Throughout the period considered, Union industry was loss-making. Thus, no full recovery from the past dumping could be established and the Commission considers that the Union industry remains very vulnerable to the injurious effects of any dumped imports in the Union market.

(95)

The main injury indicators showed a negative trend, related to the impact of the crisis experienced in the construction sector. Thus, consumption, production volume and sales declined by 12 % over the period considered.

(96)

However, the measures have been effective in helping the Union industry to weather this crisis and undertake a significant effort of restructuring materialised by a reduction of production capacity and workforce.

(97)

Signs of improvement have emerged in the last years of the period considered where an increase of productivity and capacity utilisation can be observed. Furthermore, costs of production have been brought close to the average sales price.

(98)

Nevertheless, the situation of the Union industry remains fragile. While most financial indicators have improved, they have not reached a sustainable level. Consumption and prices remain depressed and there are sign of persisting overcapacity in the Union.

(99)

The anti-dumping measures have partially achieved their objective by removing some of the injury suffered by the Union industry as a consequence of dumped imports from China. While financial indicators such as profitability and return on investment have improved throughout the period considered, they remain negative. Cash flow has also improved and became slightly positive. Therefore it is clear that the Union industry has not yet fully recovered from the effects of past dumping and is still in a fragile situation, thus very vulnerable to any recurrence of dumped imports.

(100)

Even if the fragile situation of the Union industry was qualified as a material injury, this cannot be attributed to the imports from China representing a market share of less than 1 % on the Union market. In the absence of price pressure from China, the Union industry has been able to maintain their market share and reduce their losses.

(101)

The situation of the Union industry has improved but remains fragile. During the whole period considered, the volume of Chinese imports was negligible. At the same time, as outlined in recitals 20 to 54 above, the investigation has shown that there was a likelihood of recurrence of dumping should the measures be allowed to lapse.

(102)

The Commission assessed the likelihood of recurrence of injury if the measures currently in force were allowed to lapse, namely the potential impact of the Chinese imports on the Union market and on the Union industry, pursuant to Article 11(2) of the basic Regulation.

(103)

This analysis focussed on the spare capacity of the Chinese exporting producers and their pricing behaviour when exporting to other countries.

(104)

As established in recital 46 above, total spare capacity for the production of PSC wires and strands in China was estimated at around 1,7 million tonnes in 2013. This amount exceeded largely the total Union consumption during the same period.

(105)

It can be reasonably concluded that, should measures be repealed, at least part of this spare capacity will, in all likelihood, be directed to the Union market.

(106)

In this regard, as noted in recital 48 above, before the measures currently in force were imposed, imports from China increased seven-fold within 3 years, reaching close to 87 000 tonnes, that is 8,2 % of the consumption during the original investigation or 17 % of the current consumption of the Union Market. This shows the ability of Chinese imports to rapidly penetrate the Union market in the absence of measures.

(107)

As mentioned above in recital 65 above, Chinese import prices without anti-dumping duties are likely to undercut the Union industry's sales prices by a significant margin (47 %). This very high likely undercutting margin based on a comparison of Chinese export prices to third countries and Union industry prices, makes the Union market more attractive than other third country markets to Chinese exports. Indeed, if measures are allowed to lapse, the Chinese exporting producers could export to the Union at prices above those to third countries whilst still undercutting the Union industry's prices.

(108)

On this basis, the Commission concluded that, in the absence of measures, Chinese exporting producers will likely increase the price pressure and their market share in the Union market, thus causing material injury to the Union industry.

(109)

In view of the findings of the investigation, namely the estimated spare capacity of Chinese exporting producers and the expected price levels of Chinese imports, it is considered that the repeal of the measures would in all likelihood lead to a recurrence of injury and would further deteriorate the fragile situation of the Union industry due to the likely increase of Chinese imports at dumped prices undercutting the Union industry's sales prices.

(110)

In accordance with Article 21 of the basic Regulation, the Commission examined whether maintaining the existing anti-dumping measures against China would be against the interest of the Union as a whole. The determination of the Union interest was based on an appreciation of all the various interests involved, including those of the Union industry, importers, suppliers and users.

(111)

All interested parties were given the opportunity to make their views known pursuant to Article 21(2) of the basic Regulation.

(112)

On this basis the Commission examined whether, despite the conclusions on the likelihood of recurrence of dumping and injury, compelling reasons existed which would lead to the conclusion that it was not in the Union interest to maintain the existing measures.

(113)

The investigation established that there was a likelihood of recurrence of material injury should measures against Chinese imports be allowed to lapse.

(114)

Should measures be maintained it is expected that the Union industry will be able to fully pursue its restructuring and eventually improve its profitability.

(115)

The Commission therefore concluded that maintaining the measures in force against China would be in the interest of the Union industry.

(116)

No importer/trader came forward following the publication of the Notice of initiation.

(117)

Although it cannot be ruled out that the imposition of the measures had a negative impact on their activity, importers are not dependent on China and can source PSC wires and strands from other supplying countries such as Thailand and South Africa.

(118)

Three suppliers expressed their support of the measures. Two of them were producers of wire rod and were related to the applicant. The third company supplied drawing lubricants and chemicals to the Union Industry.

(119)

The wire rod sold to the Union industry represents a small share of the turnover of the sector and the repeal of the measures is therefore not expected to have a significant impact on suppliers. It is nevertheless in the interest of wire rod producers to maintain the measures.

(120)

Twelve users came forward in this investigation to express their support for the measures, including one company with a large volume of purchases of the like product.

(121)

No user replied in full to our questionnaire. However, the initial investigation established that PSC wires and strands represented 5 % of their cost of production and below 1 % of that of their final customers.

(122)

In the absence of measures on other countries than China, users have access to alternative sources of supply. In addition, the largest Union producers have similar market shares, which maintain a high level of internal competition.

(123)

The users who came forward expressed their concern that a repeal of the measures would destabilise the Union industry and therefore affect the reliability of their supply chain. They placed higher value on security of supply than possible cost savings.

(124)

In view of the above, the Commission concluded that there are no compelling reasons of Union interest against the maintenance of the current anti-dumping measures against China.

(125)

It follows from the above that, as provided for by Article 11(2) of the basic Regulation, the anti-dumping measures applicable to imports of certain pre- and post-stressing wires and wire strands of non-alloy steel (PSC wires and strands) originating in the People's Republic of China, imposed by Regulation (EC) No 383/2009 should be maintained.

(126)

The individual company anti-dumping duty rates specified in this Regulation are solely applicable to imports of the product concerned produced by these companies and thus by the specific legal entities mentioned. Imports of the product concerned manufactured by any other company not specifically mentioned in the operative part of this Regulation with its name and address, including entities related to those specifically mentioned, cannot benefit from these rates and shall be subject to the duty rate applicable to ‘all other companies’.

(127)

A company may request the application of these individual anti-dumping duty rates if it changes subsequently the name of its entity. The request must be addressed to the Commission (6). The request must contain all the relevant information enabling to demonstrate that the change does not affect the right of the company to benefit from the duty rate which applies to it. If the change of name of the company does not affect its right to benefit from the duty rate which applies to it, a notice informing about the change of name will be published in the Official Journal of the European Union.

(128)

This Regulation is in accordance with the opinion of the Committee established by Article 15(1) of the basic Regulation,

5.6.2015   

EN

Official Journal of the European Union

L 139/30

(1)

By Regulation (EU) No 513/2013 (3), the European Commission (‘the Commission’) imposed a provisional anti-dumping duty on imports into the European Union (‘the Union’) of crystalline silicon photovoltaic modules (‘modules’) and key components (i.e. cells and wafers) originating in or consigned from the People's Republic of China (‘the PRC’).

(2)

A group of exporting producers gave a mandate to the China Chamber of Commerce for Import and Export of Machinery and Electronic Products (‘CCCME’) to submit a price undertaking on their behalf to the Commission, which they did. It is clear from the terms of that price undertaking that it constitutes a bundle of individual price undertakings for each exporting producer, which is, for reasons of practicality of administration, coordinated by the CCCME.

(3)

By Decision 2013/423/EU (4), the Commission accepted that price undertaking with regard to the provisional anti-dumping duty. By Regulation (EU) No 748/2013 (5), the Commission amended Regulation (EU) No 513/2013 to introduce the technical changes necessary due to the acceptance of the undertaking with regard to the provisional anti-dumping duty.

(4)

By Implementing Regulation (EU) No 1238/2013 (6), the Council imposed a definitive anti-dumping duty on imports into the Union of modules and cells originating in or consigned from the PRC (‘the products concerned’). By Implementing Regulation (EU) No 1239/2013 (7), the Council also imposed a definitive countervailing duty on imports into the Union of the product concerned.

(5)

Following the notification of an amended version of the price undertaking by a group of exporting producers (‘the exporting producers’) together with the CCCME, the Commission confirmed by Implementing Decision 2013/707/EU (8) the acceptance of the price undertaking as amended (‘the undertaking’) for the period of application of definitive measures. The Annex to this Decision lists the exporting producers for whom the undertaking was accepted, including:

(6)

By Implementing Decision 2014/657/EU (9) the Commission accepted a proposal by the group of the exporting producers together with the CCCME for clarifications concerning the implementation of the undertaking for the product concerned covered by the undertaking, that is modules and cells originating in or consigned from the PRC, currently falling within CN codes ex 8541 40 90 (TARIC codes 8541409021, 8541409029, 8541409031 and 8541409039) produced by the exporting producers (‘product covered’). The antidumping and countervailing duties referred to in recital 4 above, together with the undertaking, are jointly referred to as ‘measures’.

(7)

The exporting producers agreed, inter alia, not to sell the product covered to the first independent customer in the Union below a certain minimum import price (‘the MIP’) within the associated annual level of imports to the Union laid down in the undertaking.

(8)

The undertaking also clarifies, in a non-exhaustive list, what constitutes a breach of the undertaking. That list includes, in particular, making compensatory arrangements with their customers, and making misleading declarations regarding the origin of the product concerned or the identity of the exporter.

(9)

The exporting producers also undertook not to sell any products other than the product covered produced or traded by them in excess of a given small percentage limit of the total sales value of the product covered to the same customers to which they sell the product covered (‘the parallel sales limit’).

(10)

The undertaking also obliges the exporting producers to provide the Commission on a quarterly basis with detailed information on all their export sales to and re-sales in the Union (‘the quarterly reports’). This implies that the data submitted in these quarterly reports must be complete and correct and the reported transactions fully comply with the terms of the undertaking.

(11)

For the purpose of ensuring compliance with the undertaking, the exporting producers also undertook to allow verification visits at their premises in order to verify the accuracy and completeness of data submitted to the Commission in the quarterly reports and to provide all information considered necessary by the Commission.

(12)

The undertaking also stipulates that the Commission may withdraw the acceptance of the undertaking at any time during its period of application if monitoring and enforcement prove to be impracticable.

(13)

The undertaking further stipulates that the acceptance of the undertaking by the Commission is based on trust and any action which would harm the relationship of trust established with the Commission shall justify the withdrawal of the undertaking.

(14)

While monitoring compliance with the undertaking, the Commission verified information submitted by the exporting producers that was relevant to the undertaking. The findings listed in recitals 15 to 32 below address the problems identified for Canadian Solar, ET Solar and ReneSola, which oblige the Commission to withdraw acceptance of the undertaking for those three exporting producers.

(15)

Canadian Solar provided certain benefits to several customers, which were not listed in their quarterly reports. The Commission analysed these non-reported benefits and concluded that Canadian Solar has breached their reporting obligation under the undertaking.

(16)

Further analysis of those non-reported benefits has led to the conclusion that Canadian Solar also breached their obligation to respect the MIP, as deducting these benefits from the sales price in the transactions with the customers concerned decreased those prices below the MIP.

(17)

Canadian Solar conducted also parallel sales of modules covered and not covered by the undertaking to the same customers in the same calendar year. This was done though parallel sales to the same customer, on a large scale, of, on the one hand, modules imported into the Union without having been subject to the measures and then stockpiled (through multiple channels) and, on the other hand, the product covered. Those sales exceeded substantially the parallel sales limit authorised by the undertaking. Thereby, Canadian Solar has breached that limit.

(18)

In addition, the Commission analysed the implications of that pattern of trade and concluded that there is a high risk of cross-compensation where the products covered and not covered by the undertaking are sold to the same customers, in particular where sales take place in such significant quantities.

(19)

Canadian Solar also used in their business model one unrelated original equipment manufacturer (‘OEM’). That OEM assembled modules for Canadian Solar in a third country, allegedly using cells form another third country. Imports of modules by Canadian Solar from that OEM into the Union are not subject to the undertaking, because the undertaking only covers direct sales from the PRC into the Union. Those imports and sales, as well as the OEM, hence fall outside the scope of the monitoring by the Commission.

(20)

The Commission analysed the implications of that pattern of trade on the practicability of the undertaking. The Commission concluded that, although limited in scope, that OEM renders the monitoring of Canadian Solar's undertaking impracticable.

(21)

ET Solar sold the product covered by the undertaking as a part of sales of complete solar parks. The imports of the product covered into the Union were listed in the ET Solar's quarterly reports, but none of the sales of modules into the solar parks or as part of the solar parks was. ET Solar was, however, obliged under the undertaking to report those sales. When selling a solar park, ET Solar was selling a bundle of goods and services: the modules installed in the park, the remaining equipment necessary for the park, and the service of building the park and connecting it to the grid.

(22)

Furthermore, the sale of complete solar parks constitutes a parallel sale of the product covered and the products and services not covered by the undertaking to the same customers. These sales exceeded substantially the parallel sales limit authorised by the undertaking. Thereby, ET Solar has breached that limit.

(23)

In addition, the Commission analysed the implications of that pattern of trade and concluded that there is a high risk of cross-compensation where the product covered, and products and services not covered by the undertaking are sold to the same customers, in particular where sales take place in such significant quantities.

(24)

Moreover, ET Solar is not able to demonstrate that the MIP is respected in the sales of complete solar parks, as there is no sales price per se for the modules as the customer pays only a total price for the installation and no further reliable breakdown of the price for the modules, other equipment and services was provided.

(25)

Finally, the Commission analysed the implications of that pattern of trade and also concluded that this renders the monitoring of ET Solar's undertaking impracticable.

(26)

ReneSola's business model, besides using their own production capacities in the PRC, relies on an extensive network of unrelated OEMs in third countries and in the Union to assemble modules for them. Those OEMs use cells of various origins, including cells originating in or consigned from the PRC. Those cells are imported into the third countries and the Union, in a number of cases, through related companies located in different third countries.

(27)

The imports of modules from those OEMs in third countries and the sales of modules assembled by the OEM in the Union are not subject to the undertaking, because the undertaking only allows direct sales from the PRC into the Union. Those imports and sales, as well as the OEMs, hence fall outside the scope of the monitoring by the Commission.

(28)

The Commission analysed the implications of this pattern of trade and concluded that it renders the monitoring of ReneSola's undertaking impracticable.

(29)

Furthermore, ReneSola provided in its quarterly reports misleading information about transactions to a related importer in the Union. The related importer's transactions records inspected on the spot do not match the export sales reported to the Commission by ReneSola under the undertaking. Further verification established that ReneSola has not reported the cancellations or modifications of a large number of shipments to that related importer.

(30)

The Commission analysed these inconsistencies between ReneSola's undertaking reports and actual sales transactions and concluded that ReneSola has breached their reporting obligation under the undertaking.

(31)

The findings of breaches of the undertaking and its impracticability established for Canadian Solar, ET Solar, and ReneSola require the withdrawal of the acceptances of the undertaking for those three exporting producers pursuant to Article 8(7) and (9) of the basic anti-dumping Regulation, Article 13(7) and (9) of the basic anti-subsidy Regulation, and pursuant to the terms of the undertaking.

(32)

In addition, the Commission analysed the implications of actions by Canadian Solar, ET Solar, and ReneSola listed in recitals 15 to 30 above on their relationships of trust established with the Commission at the acceptance of the undertaking. The Commission concluded that the combination of these actions harmed the relationship of trust with these three exporting producers. Therefore, this accumulation of breaches also justifies the withdrawal of acceptances of the undertaking for those three exporting producers pursuant to the terms of the undertaking.

(33)

The undertaking stipulates that any breach by an individual exporting producer does not automatically lead to the withdrawal of the acceptance of the undertaking for all exporting producers. In such a case, the Commission shall assess the impact of that particular breach on the practicability of the undertaking with the effect for all exporting producers and the CCCME.

(34)

The Commission has accordingly assessed the impact of the breaches by Canadian Solar, ET Solar, and ReneSola on the practicability of the undertaking with the effect for all exporting producers and the CCCME.

(35)

The responsibility for those breaches lies alone with the three exporting producers in question; the monitoring and the verifications have not revealed any systematic breaches by a major number of exporting producers or the CCCME.

(36)

The Commission therefore concludes that the overall functioning of the undertaking is not affected and that there are no grounds for withdrawal of the acceptance of the undertaking for all exporting producers and the CCCME.

(37)

Interested parties were granted the opportunity to be heard and to comment pursuant to Article 8(9) of the basic anti-dumping Regulation and Article 13(9) of the basic anti-subsidy Regulation. Canadian Solar, ET Solar and ReneSola submitted comments and have been heard. The CCCME also participated in the hearings. Comments were submitted from an association representing importers and users of the product covered and from an association representing the Union producers of solar modules and cells.

(38)

Canadian Solar contested that they failed to report certain benefits that they provided to several customers and that by providing these, they violated the MIP. They argue that they were under no obligation to report these benefits, for three reasons:

(39)

First, that these benefits are part of the selling, general and administrative expenses (‘SG&A’) of their Chinese entity, and that any SG&A cannot, at the same time, constitute a benefit for purchasers of the product covered. Those categories would be mutually exclusive.

(40)

Second, that based on the guidance issued by the Commission's services only benefits paid by related companies in the Union should be reported and deducted from the sales price as benefits.

(41)

Third, that in any event, these expenses do not constitute a benefit for the purchasers of the product covered, because the payments correspond to the market value of the services rendered.

(42)

The Commission rejects those arguments as Canadian Solar was obliged to report any benefits given to customers and failed to do so. This is for the following reasons:

(43)

First, no exception for benefits classified as SG&A is mentioned in the undertaking. Indeed, SG&A can at the same time be a benefit for the purchaser, where the purchaser receives payment of a cost classified as SG&A.

(44)

Second, the argument of Canadian Solar presupposes that the payments correspond indeed to the market value of services rendered. Canadian Solar has provided no sufficient proof in that regard. Furthermore, even if they did correspond to the market value, quod non, this does not mean that payments under such a classification do not confer a benefit to the recipient, in this case the client of Canadian Solar, where there is a clear link between buying the service and selling the product covered.

(45)

Third, Canadian Solar quotes the guidance issued by the Commission's services out of context. Contrary to the view of Canadian Solar, these expenses do constitute benefits for the purchasers. The fact that they are only mentioned as benefits in an answer to a question concerning related companies in the Union cannot be relied upon a contrario to exclude that such expenses paid by the Chinese entity constitute benefits. There is no economic or legal rationale for treating such expenses of the Chinese entity differently from the same type of expenses of the related companies in the Union.

(46)

Fourth, the guidance issued by the Commission's services has a disclaimer that it cannot bind the Commission and that the replies in the guidance issued by the Commission's services are not individualised and based on limited information. For these reasons, the guidance has no binding value for the Commission.

(47)

The Commission therefore upholds its conclusion that Canadian Solar has breached their reporting obligation under the undertaking and that they also breached their obligation to respect the MIP, as deducting those benefits from the sales price in the transactions with the customers concerned decreased those prices below the MIP.

(48)

Canadian Solar defended also their parallel sales of products covered and not covered by the undertaking to the same customers above the parallel sales limit authorised by the undertaking.

(49)

Canadian Solar submitted that right after the entry into force of the undertaking, they first sold their stock of products predominantly originating in the PRC which was imported and customs cleared without having been subject to the measures and then stockpiled. Only once that stock had been exhausted, Canadian Solar sold products covered by the undertaking to the same customers.

(50)

Canadian Solar furthermore submits that customers that purchased OEM modules produced in and consigned from third countries were never sold products covered by the undertaking.

(51)

Furthermore, Canadian Solar refers to a guidance document issued by the CCCME, pursuant to which cells and modules other than those covered by the undertaking would not qualify as ‘any other type of product produced or traded by the company’. They claim that it was only by e-mail of 12 December 2013 that the Commission's services clarified the opposite.

(52)

Lastly, Canadian Solar claims that its sales of products imported and customs cleared without having been subject to the measures and then stockpiled are excluded from the obligations under the undertaking, that they sold modules not covered by the undertaking at a similar price as the MIP, and that they first liquidated stocks and only then sold the product covered. For those reasons, they do not see a risk of cross-compensation.

(53)

The Commission cannot accept those arguments. For the reasons as set out in recital 46 above, the guidance referred to by Canadian Solar cannot bind the Commission. It is clear from the wording and the general scheme of the undertaking that the exporting producer cannot sell to one and the same customer cells and modules covered by the undertaking and cells and modules which are not covered the undertaking above the parallel sales limit authorised by the undertaking.

(54)

This also applies to situations where modules were imported and customs-cleared without having been subject to the measures and then stockpiled. Indeed, in case of a parallel sale of modules, the risk of cross-compensation is even larger than in case of parallel sales of any other product.

(55)

The Commission is not obliged to prove the existence of cross-compensation, but only to show that there is a risk of cross-compensation by a particular exporting producer. The provisions of the undertaking aim at preventing the possibility of cross-compensation, because it is impossible to monitor at what price products not covered by the undertaking are sold. Finally, the e-mail of 12 December 2013 did not create a new legal situation, but only confirmed the text of the undertaking.

(56)

Canadian Solar has confirmed in its post-hearing submission that they sold, in 2013, modules that were imported and customs-cleared without having been subject to the measures and then stockpiled to the same customers to whom they also, in the same year, sold the product concerned, and that the value of the former sales is more than marginal. With regard to the argument that Canadian Solar first sold those modules, and then only the product covered, the Commission observes that the undertaking does not contain any exception on the basis of the order of sales. The Commission therefore rejects this argument.

(57)

Canadian Solar also submitted that they imported and resold limited quantities of OEM modules after entry into force of the undertaking, and that they stopped purchasing these products for the Union market in the meantime.

(58)

Indeed, Canadian Solar confirmed that the OEM strategy has been developed in order to adapt their business model to the undertaking, because OEM modules were used for selling modules included in kits, where the value of the other products contained in the kit exceeds the parallel sales limit authorised by the undertaking.

(59)

In addition, Canadian Solar submitted that they did not sell OEM modules to customers who purchased modules covered by the undertaking. Lastly, Canadian Solar claims that the Undertaking does not expressly forbid sales of OEM modules.

(60)

The Commission rejects these arguments. While the undertaking does indeed not expressly refer to sales of OEM modules, such OEM sales are not subject to the undertaking, as set out in recital 19 above. Hence OEM sales fall outside the scope of the monitoring by the Commission.

(61)

Moreover, the undertaking clearly states that changing the pattern of trade to the Union without economic justification other than the avoidance of trade defence measures is a breach of the undertaking.

(62)

In that respect, imports and re-sales of OEM modules into the Union by Canadian Solar constituted a change in the pattern of trade, designed to adapt the pattern of trade to circumvent the terms of the undertaking.

(63)

Moreover the basic anti-dumping Regulation and the basic anti-subsidy Regulation contain no requirement for a minimum percentage of sales in the assessment of a breach of an undertaking.

(64)

Therefore the Commission upholds its finding that, although limited in scope, these OEM sales rendered the monitoring of Canadian Solar's undertaking impracticable, and, on top, constitute a breach of the undertaking since they changed Canadian Solar's pattern of trade.

(65)

Finally, Canadian Solar argues that they always complied with the applicable rules and took all reasonable steps to properly interpret and implement the undertaking. In particular, they stress that they and their legal counsel made more than 50 requests to the Commission and the CCCME in order to seek clarification on compliance of Canadian Solar with the undertaking, and that they always complied with any advice they received.

(66)

The submissions of Canadian Solar do not change the overall assessment that the accumulation of all findings for Canadian Solar harmed the relationship of trust with the Commission on the impracticability of Canadian Solar's undertaking, and as such justify the withdrawal. Indeed, the commercial strategy of Canadian Solar aimed at reducing the practical scope of its obligations under the undertaking to a minimum, regardless of the spirit of the undertaking and the need to preserve the relationship of trust.

(67)

ET Solar clarified during the hearing that they had not reported sales of the product covered where those sales formed part of a solar park. Furthermore, they explained that many sales that occurred after the entry into force of the undertaking concerned modules that were customs-cleared (but not sold) without having been subject to the measures. They also explained a formatting error and another minor correction. As a result, the gap between sales on the books of the company and sales reported could be considered marginal.

(68)

ET Solar confirmed at the same occasion that they did omit to report these allegedly marginal quantities of sales to the Commission, and that significant quantities of solar modules were customs cleared without having been subject to the measures, but not sold prior to the entry into force of the undertaking. No explanation was provided as to whether those sales took place to the same customers to whom sales of the product covered took subsequently place.

(69)

ET Solar submitted also that sales of solar parks are not prohibited under the undertaking, as these are complex, integrated products that should be treated as a single unit and, as such, do not fall under the definition of the ‘product covered’.

(70)

Therefore, ET Solar considers that the parallel sales limit for the sale of ‘other products’ authorised by the undertaking is not applicable to sales of solar parks, and that such sales do not need to be reported. At the same time, they confirmed that the intra-group transactions that result in the import of the product covered into the Union were reported.

(71)

The Commission rejects these arguments of ET Solar for following reasons.

(72)

The size of the breach is irrelevant. As mentioned in recital 63 above, the basic anti-dumping Regulation and the basic anti-subsidy Regulation contain no requirement for a minimum percentage of sales in the assessment of a breach of an undertaking.

(73)

Furthermore, the allegedly marginal quantities referred to in recital 67 above are not negligible, but correspond to a sizeable amount of several full containers. In addition, ET Solar could not exclude that significant quantities of solar modules customs-cleared without having been subject to the measures were sold to the same customers that also purchased the product covered; therefore, ET Solar's explanations show that the rules on the risk of cross-compensation have also been violated.

(74)

Solar parks sold by ET Solar mainly consist of modules imported under the undertaking. ET Solar was obliged to report the sales of these modules under the undertaking. Moreover, the undertaking clearly provides, without exception, that no more than the parallel sales limit of ‘other products’ can be sold to the same customer to avoid the risk of cross-compensation.

(75)

Therefore the Commission upholds the conclusion that ET Solar breached the undertaking by selling modules to solar parks and by non-reporting these sales. In consequence, the Commission also upholds the conclusions on the breach of the MIP and impracticability if ET Solar's undertaking.

(76)

ReneSola submitted that their business model, whereby they produce modules using their own production capacities in the PRC and an extensive network of unrelated OEMs in third countries and in the Union is not new and has been in place before the undertaking entered into force. ReneSola argued that such a business model had not been explicitly prohibited until November 2014.

(77)

ReneSola submitted also that they are ready to commit to not selling on the Union market the modules produced by their OEMs in third countries.

(78)

ReneSola expressed however interest in using the OEM production in the Union for sales on the Union market. ReneSola offered to undertake the simplification of their business model to render the monitoring of the undertaking practicable.

(79)

To avoid potential cross-compensations, ReneSola offered to develop an ‘internal firewall’ that is prohibiting sales from different sources to the same company, to companies in the same group, or selling to their own projects. ReneSola offered also to ensure that their OEM producers in the Union cooperate with the Commission.

(80)

The Commission rejects these arguments for the following reasons.

(81)

The monitoring of such extensive OEM business model remains impracticable as already explained in recitals 26 to 28 above. Despite the commitments offered by ReneSola, using an OEM in the Union would render the monitoring of the undertaking impracticable. The activities of OEMs, even in the Union, fall outside the scope of the undertaking, hence they fall outside monitoring by the Commission.

(82)

ReneSola's argument of the ‘internal firewall’ was not supported by any evidence and further explanation. In addition, the clarification given in November 2014 does not imply that the extensive OEM practice of ReneSola was not rendering the undertaking impracticable before. That can be illustrated by the fact that ReneSola does not dispute that the OEMs located in third countries use at least partially cells with origin in the PRC in their production, as can be seen from the pre-verification data submitted by ReneSola. It is impracticable to monitor that modules comprising those cells have not been supplied to the Union.

(83)

ReneSola submitted also additional information about a specific shipment for which they provided misleading information in their quarterly reports. ReneSola submitted that this was non-intentional and caused by a misunderstanding of the undertaking and maybe negligence. ReneSola submitted also that the implementation of the undertaking is complicated, stating that there are separate reporting obligations on the undertaking certificates and invoices, and both in the process of reporting and rectification several parties are involved.

(84)

The Commission rejects this argument for the following reasons.

(85)

ReneSola has not rectified the information (cancellation or modification of shipments) provided in their quarterly reports, according to their related importer's transactions records. Hence, ReneSola's quarterly reports do not reflect the actual sales transactions.

(86)

ReneSola informed the CCCME on the significant difference of the quantity delivered and the relevant undertaking certificate, and asked advice to rectify the situation only after the Commission's on the spot visit.

(87)

Therefore, the Commission upholds the assessment of the breach of the ReneSola's undertaking by incomplete and erroneous reporting of sales.

(88)

One interested party requested the Commission to withdraw the acceptance of the undertaking for the three exporting producers with retroactive effect from the date of the first documented violation or at least from the start of the verification exercise, to compensate the damage to the Union budget resulting from allegedly evaded import duties.

(89)

The Commission rejects that request as there are no grounds for invalidating any undertaking invoices issued by the three exporting producers until the day of entry into force of this Regulation, which could justify a retroactive collection of duties.

(90)

Another interested party urged the Commission to allow for a transitional period before the anti-dumping and countervailing duties are applicable in order to enable importers to reasonably execute or terminate existing contractual arrangements and find alternative suppliers.

(91)

The Commission rejects this request as pursuant to Article 8(9) of the basic anti-dumping Regulation and Article 13(9) of the basic anti-subsidy Regulation in the case of withdrawal of acceptance of the undertaking the anti-dumping and countervailing duties shall automatically apply and there is no legal basis for any transitional period.

(92)

Moreover, the importer is responsible both for payment of the import duties and for the regularity of the documents presented by it to the customs authorities. The adverse consequences of wrongful acts of its contractual partners cannot be borne by the Union. The possibility that a price undertaking may be withdrawn is a trade risk inherent in the importation business.

(93)

Despite of the above submissions the Commission upholds its findings on breaches of the undertaking and its impracticability established for Canadian Solar, ET Solar, and ReneSola. The Commission also upholds the conclusion that the combination of actions by Canadian Solar, ET Solar, and ReneSola listed in recitals 15 to 32 above harmed the relationship of trust with each of these three exporting producers.

(94)

That justifies as such the withdrawal of acceptances of the undertaking for these three exporting producers pursuant to the terms of the undertaking.

(95)

Therefore, in accordance with Article 8(9) of the basic anti-dumping Regulation, Article 13(9) of the basic anti-subsidy Regulation and also in accordance with the terms of the undertaking, the Commission has concluded that the acceptance of the undertaking for Canadian Solar, ET Solar, and ReneSola shall be withdrawn.

(96)

Accordingly, pursuant to Article 8(9) of the basic anti-dumping Regulation and Article 13(9) of the basic anti-subsidy Regulation, the definitive anti-dumping duty imposed by Article 1 of Council Implementing Regulation (EU) No 1238/2013 and the definitive countervailing duty imposed by Article 1 of Council Implementing Regulation (EU) No 1239/2013 automatically apply to imports originating in or consigned from the PRC of the product concerned and produced by Canadian Solar (TARIC additional code: B805), ET Solar (TARIC additional code: B819), and ReneSola (TARIC additional code: B921) as of the day of entry into force of this Regulation.

(97)

For information purposes the table in Annex to this Regulation lists the exporting producers for whom the acceptance of the undertaking by Commission Implementing Decision 2014/657/EU is not affected,

5.6.2015   

EN

Official Journal of the European Union

L 139/46

(1)

Implementing Regulation (EU) No 543/2011 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in Annex XVI, Part A thereto.

(2)

The standard import value is calculated each working day, in accordance with Article 136(1) of Implementing Regulation (EU) No 543/2011, taking into account variable daily data. Therefore this Regulation should enter into force on the day of its publication in the Official Journal of the European Union,