COMMISSION IMPLEMENTING REGULATION (EU) 2023/442
of 28 February 2023
initiating a ‘new exporter’ review of Implementing Regulation (EU) 2017/1171 imposing a definitive anti-dumping duty on imports of melamine originating in the People’s Republic of China for one Chinese exporting producer, repealing the duty with regard to imports from that exporting producer and making these imports subject to registration
THE 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 Union (1) (‘the basic Regulation’) and in particular Articles 11(4) and 14(5) thereof,
After having informed the Member States,
Whereas:
1.
REQUEST
(1) On 26 April 2022, the Commission received a request for a ‘new exporter’ review under Article 11(4) of the basic Regulation. The request was updated on 14 October 2022.
(2) The request was lodged by Xinjiang Xinlianxin Energy Chemical Co., Ltd. (‘the applicant’), an exporting producer of melamine in the People’s Republic of China (‘the PRC’).
2.
PRODUCT UNDER REVIEW
(3) The product under review is melamine, currently falling under CN code 2933 61 00 originating in the PRC.
(4) Melamine is a white crystalline powder obtained from urea. It is used mainly in laminates, moulding powders, wood-based panels and coating resins.
3.
EXISTING MEASURES
(5) The measures currently in force are a definitive anti-dumping duty imposed by Council Implementing Regulation (EU) No 457/2011 (2) and extended by Commission Implementing Regulation (EU) 2017/1171 (3). The duty was imposed in the form of a minimum import price (‘MIP’) for the cooperating exporting producers and a fixed duty per tonne for all other exporting producers.
(6) On 1 July 2022, the Commission initiated an expiry review investigation of the anti-dumping measures applicable to imports of melamine originating in the PRC, following a request for review pursuant to Article 11(2) of the basic Regulation (4).
4.
GROUNDS FOR THE REVIEW
(7) The applicant provided sufficient evidence that it did not export the product under review to the Union during the investigation period on which the anti-dumping measures were based (1 January 2009 to 31 December 2009).
(8) The applicant provided sufficient evidence that it is not related to any of the exporting producers of the product under review which are subject to the anti-dumping duties in force.
(9) Finally, the applicant provided sufficient evidence that it has begun exporting the product under review to the Union after the end of the investigation period on which the anti-dumping measures were based.
5.
PROCEDURE
5.1.
Initiation
(10) The Commission examined the evidence available and concluded that there was sufficient evidence to justify the initiation of a ‘new exporter’ review pursuant to Article 11(4) of the basic Regulation, with a view to determining an individual margin of dumping for the applicant. Should dumping be found, the Commission will determine the level of the duty to which the imports of the product under review produced by the applicant should be subject.
(11) In accordance with Articles 11(3) and 11(4) of the basic Regulation, normal value for the applicant shall be determined following the methodology laid down in Article 2(1) to (6a) of the basic Regulation, as the latest expiry review of the measures was initiated after 20 December 2017.
(12) Union producers known to be concerned were informed of the request for a review on 2 December 2022 and were given an opportunity to comment until 15 December 2022.
(13) The Commission also draws the attention of the parties that further to the COVID-19 outbreak a Notice (5) has been published on the consequences of the COVID-19 outbreak on anti-dumping and anti-subsidy investigations that may be applicable to this proceeding.
5.2.
Repeal of the existing measures and registration of imports
(14) Pursuant to Article 11(4) of the basic Regulation, the anti-dumping duty in force should be repealed with regard to imports of the product under review produced by the applicant. At the same time, such imports should be made subject to registration in accordance with Article 14(5) of the basic Regulation, in order to ensure that anti-dumping duties can be levied from the date of the registration of these imports should the review result in a finding of dumping in respect of the applicant. Furthermore, the Commission notes that it is not possible, at this stage, to provide a reliable estimate of the amount of possible future liability, without prejudice to Article 9(4) of the basic Regulation. Should the request be withdrawn and the review terminated, the amount of the liability for the registered imports will continue to be based on the anti-dumping duty rate established by the Implementing Regulation (EU) 2017/1171 for ‘all other exporting producers’, subject to the outcome of the expiry review investigation mentioned in recital (6).
5.3.
Review investigation period
(15) The investigation will cover the period from 1 January 2022 to 31 December 2022 (‘review investigation period’). However, the Commission reserves the right to also examine if transactions may have occurred in a subsequent period, and may amend the review investigation period as appropriate in light of the findings of the investigation.
5.4.
Investigating the applicant
(16) In order to obtain information it deems necessary for its investigation, the Commission has made a questionnaire for the applicant available in the file for inspection by interested parties and on the website of the Directorate-General for Trade https://tron.trade.ec.europa.eu/investigations/case-view?caseId=2657. The applicant must submit the completed questionnaire within the time limit specified in Article 4(2) of this Regulation.
5.5.
Other written submissions
(17) Subject to the provisions of this Regulation, all interested parties are invited to make their views known, submit information and provide supporting evidence. Unless otherwise specified, this information and supporting evidence must reach the Commission within the time limit specified in Article 4(2) of this Regulation.
5.6.
Possibility to be heard by the Commission investigation services
(18) All interested parties may request to be heard by the Commission investigation services within the time limits specified in Article 4(3) of this Regulation. Any request to be heard must be made in writing and must specify the reasons for the request. For hearings on issues pertaining to the initiation stage of the investigation the request must be submitted within 15 days of the date of entry into force of this Regulation. Thereafter, a request to be heard must be submitted within the specific deadlines set by the Commission in its communication with the parties.
5.7.
Instructions for making written submissions and sending completed questionnaires and correspondence
(19) Information submitted to the Commission for the purpose of trade defence investigations shall be free from copyrights. Parties, before submitting to the Commission information and/or data which is subject to third party copyrights, must request specific permission to the copyright holder explicitly allowing a) the Commission to use the information and data for the purpose of this trade defence proceeding and b) to provide the information and/or data to interested parties to this investigation in a form that allows them to exercise their rights of defence.
(20) All written submissions, including the information requested in this Regulation, completed questionnaires and correspondence provided by interested parties for which confidential treatment is requested shall be labelled ‘Sensitive’ (6). Interested parties submitting information in the course of this investigation are invited to reason their request for confidential treatment.
(21) Parties providing ‘Sensitive’ information are required to furnish non-confidential summaries of it pursuant to Article 19(2) of the basic Regulation, which will be labelled ‘For inspection by interested parties’. Those summaries should be sufficiently detailed to permit a reasonable understanding of the substance of the information submitted in confidence.
(22) If a party providing confidential information fails to show good cause for a confidential treatment request or does not furnish a non-confidential summary of it in the requested format and quality, the Commission may disregard such information unless it can be satisfactorily demonstrated from appropriate sources that the information is correct.
(23) Interested parties are invited to make all submissions and requests via TRON.tdi (https://webgate.ec.europa.eu/tron/TDI) including scanned powers of attorney and certification sheets.
(24) In order to have access to TRON.tdi, interested parties need an EU Login account. Full instructions on how to register and use TRON.tdi are available on https://webgate.ec.europa.eu/tron/resources/documents/gettingStarted.pdf.
(25) By using TRON.tdi or email, interested parties express their agreement with the rules applicable to electronic submissions contained in the document ‘CORRESPONDENCE WITH THE EUROPEAN COMMISSION IN TRADE DEFENCE CASES’ published on the website of the Directorate-General for Trade: https://europa.eu/!7tHpY3.
(26) The interested parties must indicate their name, address, telephone and a valid email address and they should ensure that the provided email address is a functioning official business email which is checked on a daily basis. Once contact details are provided, the Commission will communicate with interested parties by TRON.tdi or email only, unless they explicitly request to receive all documents from the Commission by another means of communication or unless the nature of the document to be sent requires the use of a registered mail. For further rules and information concerning correspondence with the Commission including principles that apply to submissions via TRON.tdi and by email, interested parties should consult the communication instructions with interested parties referred to above.
Commission address for correspondence:
European Commission
Directorate-General for Trade
Directorate G
Office: CHAR 04/039
1049 Bruxelles/Brussel
BELGIQUE/BELGIË
TRON.tdi: https://webgate.ec.europa.eu/tron/tdi
Email: TRADE-R791-MELAMINE@ec.europa.eu
6.
NON-COOPERATION
(27) If any interested party refuses access to or does not provide the necessary information within the time limits, or significantly impedes the investigation, findings, affirmative or negative, may be made on the basis of facts available, in accordance with Article 18 of the basic Regulation.
(28) Where it is found that any interested party has supplied false or misleading information, the information shall be disregarded and use may be made of facts available in accordance with Article 18 of the basic Regulation.
(29) If an interested party does not cooperate or cooperates only partially and findings are therefore based on facts available in accordance with Article 18 of the basic Regulation, the result may be less favourable to that party than if it had cooperated.
7.
HEARING OFFICER
(30) Interested parties may request the intervention of the Hearing Officer for trade proceedings. The Hearing Officer reviews requests for access to the file, disputes regarding the confidentiality of documents, requests for extension of time limits and any other request concerning the rights of defence of interested parties and third parties as may arise during the proceeding.
(31) The Hearing Officer may organise hearings and mediate between the interested party(ies) and Commissions services to ensure that the interested parties’ rights of defence are being fully exercised. A request for a hearing with the Hearing Officer should be made in writing and should specify the reasons for the request. The Hearing Officer will examine the reasons for the requests. These hearings should only take place if the issues have not been settled with the Commission services in the due course.
(32) Any request must be submitted in good time and expeditiously so as not to jeopardise the orderly conduct of proceedings. To that effect, interested parties should request the intervention of the Hearing Officer at the earliest possible time following the occurrence of the event justifying such intervention. Where hearing requests are submitted outside the relevant timeframes, the Hearing Officer will also examine the reasons for such late requests, the nature of the issues raised and the impact of those issues on the rights of defence, having due regard to the interests of good administration and the timely completion of the investigation.
(33) For further information and contact details, interested parties may consult the Hearing Officer’s web pages on DG Trade’s website: https://policy.trade.ec.europa.eu/contacts/hearing-officer_en.
8.
SCHEDULE OF THE INVESTIGATION
(34) The investigation will be concluded, pursuant to Article 11(5) of the basic Regulation, within nine months of the date of the entry into force of this Regulation.
9.
PROCESSING OF PERSONAL DATA
(35) Any personal data collected in this investigation will be treated in accordance with Regulation (EU) 2018/1725 of the European Parliament and of the Council (7).
(36) A data protection notice that informs all individuals of the processing of personal data in the framework of Commission’s trade defence activities is available on DG TRADE’s website: https://europa.eu/!vr4g9W,
HAS ADOPTED THIS REGULATION:
Article 1
A review of Implementing Regulation (EU) 2017/1171 is hereby initiated under Article 11(4) of Regulation (EU) 2016/1036 in order to determine if an individual anti-dumping duty should be imposed on the imports of melamine, currently falling under CN code 2933 61 00, originating in the PRC, produced for export to the Union by Xinjiang Xinlianxin Energy Chemical Co., Ltd. (TARIC additional code 899B).
Article 2
The anti-dumping duty imposed by Implementing Regulation (EU) 2017/1171 is hereby repealed with regard to the imports identified in Article 1 of this Regulation.
Article 3
The national customs authorities shall take the appropriate steps to register the imports identified in Article 1 of this Regulation, pursuant to Articles 11(4) and 14(5) of Regulation (EU) 2016/1036.
Registration shall expire nine months following the date of entry into force of this Regulation.
Article 4
1. Interested parties must make themselves known by contacting the Commission within 15 days from the date of entry into force of this Regulation.
2. Interested parties, if their representations are to be taken into account during the investigation, must present their views in writing and submit questionnaire replies or any other information within 37 days from the date of the publication of this Regulation in the
Official Journal of the European Union
, unless otherwise specified.
3. Interested parties may also apply to be heard by the Commission within the same 37-day time limit. For hearings on issues pertaining to the initiation stage of the investigation the request must be submitted within 15 days of the date of entry into force of this Regulation. Any request to be heard must be made in writing and must specify the reasons for the request.
Article 5
This Regulation shall enter into force on the day following that of its publication in the
Official Journal of the European Union
.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 28 February 2023.
For the Commission
The President
Ursula VON DER LEYEN
(1)
OJ L 176, 30.6.2016, p. 21
.
(2) Council Implementing Regulation (EU) No 457/2011 of 10 May 2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of melamine originating in the People’s Republic of China (
OJ L 124, 13.5.2011, p. 2
).
(3) Commission Implementing Regulation (EU) 2017/1171 of 30 June 2017 imposing a definitive anti-dumping duty on imports of melamine originating in the People’s Republic of China following an expiry review pursuant to Article 11(2) of Regulation (EU) 2016/1036 of the European Parliament and of the Council (
OJ L 170, 1.7.2017, p. 62
).
(4) Notice of initiation of an expiry review of the anti-dumping measures applicable to imports of melamine originating in the People’s Republic of China (
OJ C 252, 1.7.2022, p. 6
).
(5) https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52020XC0316%2802%29
(6) A ‘Sensitive’ document is a document which is considered confidential pursuant to Article 19 of the basic Regulation and Article 6 of the WTO Agreement on Implementation of Article VI of the GATT 1994 (Anti-Dumping Agreement). It is also a document protected pursuant to Article 4 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council (
OJ L 145, 31.5.2001, p. 43
).
(7) Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data (
OJ L 295, 21.11.2018, p. 39
).
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