Council Implementing Regulation (EU) No 871/2013 of 2 September 2013 extending the definitive anti-dumping duty imposed by Implementing Regulation (EU) No 511/2010 on imports of 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 People’s Republic of China to imports of molybdenum wire, containing by weight at least 97 % of molybdenum, of which the maximum cross-sectional dimension exceeds 1,35 mm but does not exceed 4,0 mm, originating in the People’s Republic of China

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (1) (‘the basic Regulation’), and in particular Article 13 thereof,

Having regard to the proposal from the European Commission after having consulted the Advisory Committee,

Whereas:

(1) In December 2009, the European Commission (‘the Commission’), by Regulation (EU) No 1247/2009 (2) (‘the provisional anti-dumping Regulation’), imposed a provisional anti-dumping duty on imports of 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 People’s Republic of China (‘PRC’).

(2) In June 2010, the Council, by Implementing Regulation (EU) No 511/2010 (3), imposed a definitive anti-dumping duty of 64,3 % on the same imports. These measures will hereinafter be referred to as ‘the measures in force’ and the investigation that led to the measures in force will be hereinafter referred to as ‘the original investigation’.

(3) In January 2012, following an anti-circumvention investigation pursuant to Article 13 of the basic Regulation, by Implementing Regulation (EU) No 14/2012 (4) the Council extended the measures in force to imports of the product concerned consigned from Malaysia, whether declared as originating in Malaysia or not.

(4) In November 2012, the Commission received a request pursuant to Articles 13(3) and 14(5) of the basic Regulation to investigate the possible circumvention of the anti-dumping measures imposed on certain molybdenum wires originating in the PRC by imports of certain slightly modified molybdenum wires, containing by weight 97 % or more but less than 99,95 % of molybdenum, originating in the PRC, and to make such imports subject to registration.

(5) The request was lodged by Plansee SE (‘Plansee’), a Union producer of certain molybdenum wires that participated in the original investigation.

(6) The request contained sufficient prima facie evidence that the anti-dumping measures on imports of certain molybdenum wires originating in the PRC are being circumvented by means of imports of a certain slightly modified molybdenum wires, containing by weight 97 % or more but less than 99,95 % of molybdenum, originating in the PRC.

(7) Having determined, after the consulting the Advisory Committee, that sufficient prima facie evidence existed for the initiation of an investigation pursuant to Articles 13(3) and 14(5) of the basic Regulation, the Commission initiated an investigation by Regulation (EU) No 1236/2012 (5) (‘the initiating Regulation’) of the possible circumvention of anti-dumping measures imposed on imports of certain molybdenum wires originating in the PRC and also directed the customs authorities to register imports into the Union of molybdenum wire, containing by weight 97 % or more but less than 99,95 % of molybdenum, of which the maximum cross-sectional dimension exceeds 1,35 mm but does not exceed 4,0 mm and currently falling within CN code ex 8102 96 00 (TARIC code 8102 96 00 30), originating in the PRC, as from 21 December 2012.

(8) The product concerned is the same as defined in the original investigation, namely 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 (‘pure molybdenum’) originating in the PRC currently falling within CN code ex 8102 96 00 .

(9) The product under investigation, namely the product allegedly circumventing, is the same as that defined in recital 7 containing by weight 97 % or more but less than 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.

(10) The Commission officially advised the authorities of the PRC of the initiation of the investigation and sent questionnaires to the exporting producers in the PRC and importers in the Union known to be concerned. Interested parties were given the opportunity to make themselves and 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 facts available.

(11) Two exporting producers submitted a questionnaire reply to the Commission. One of these companies, who also cooperated during the original investigation, is a genuine exporting producer of the product under investigation. As regards the second one, this company did not report any sales of the product under investigation. Therefore, its submission was disregarded.

(12) Four importers submitted a questionnaire reply to the Commission. One of them did not report any imports of the product under investigation and turned out to be a user of molybdenum wire.

(14) The three other importers were not visited, but their submissions were duly examined in the course of the investigation.

(15) The investigation period was set from 1 January 2008 to 30 September 2012 (‘IP’) in order to investigate the alleged change in the pattern of trade. The reporting period (‘RP’) covered the period from 1 October 2011 to 30 September 2012 in order to investigate if the imports are made at prices below the non-injurious price established in the investigation that led to the existing measures and the existence of dumping.

(17) The investigation has shown that the product under investigation is a wire made of molybdenum (between 99,6 % and 99,7 %) and usually lanthanum (La) (between 0,25 % and 0,35 %). This alloy contains also other chemicals elements and is known as a ‘doped molybdenum’ or ‘MoLa’ or ‘ML’. The product concerned and the product under investigation both currently fall under CN code 8102 96 00 . As explained below, the investigation did not find any difference in the production process of the product under investigation and the product concerned, other than the addition of a low percentage of lanthanum to pure molybdenum at the blending step. In addition, the cooperating exporting producer confirmed that the cost of production of the product under investigation is similar to the cost of the product concerned. This implies that there is no economic benefit for the exporting producer to produce the product under investigation other than avoidance of the measures in force. Furthermore, it was found that the users of the product concerned switched to the product under investigation after the imposition of the provisional measures, which implies that there is no difference between the product concerned and the product under consideration for the users.

(18) As mentioned in recital 15 of the provisional anti-dumping Regulation, the product concerned is mainly used as coating in the manufacturing of automotive parts (i.e. gear boxes), aircraft parts or as electrical contacts. The most traded diameters of the product concerned are 2,31 mm and 3,17 mm, used for flame or arc spraying.

(19) Three parties argued that the product under investigation and the product concerned have different essential characteristics. At the request of two of them, a confrontational hearing with GTV, JDC and Plansee, chaired by the Hearing Officer, took place in April 2013. As explained in detail below, during the hearing the main focus was on the alleged technical differences between the product concerned and the product under investigation, and the economic justification for importation of the latter into the Union market.

(20) GTV and JDC argued during the hearing and in writing that the product under investigation has different essential physical characteristics which differ significantly from the product concerned. More specifically, they claimed that the ductility, namely the ability of the material to be drawn out longitudinally to a reduced section without fracture under the action of a tensile force, the elongation parameters and the coating properties of the product under investigation are especially improved compared to the product concerned.

(21) In support of this claim, the two parties submitted a number of articles and studies which aimed to show that alloying molybdenum and lanthanum leads to a product with better resistance to brittle failure and better elongation than the product concerned. These parties also claimed that information published on the Plansee’s web site provides evidence that the product under investigation has improved properties compared to the product concerned.

(22) Regarding the product’s characteristics, in order to evaluate whether the product under investigation and the product concerned have different essential characteristics, Plansee proposed to mandate an independent institute to compare the product concerned and the product under investigation.

(23) After the hearing, the above request was assessed on the basis of the evidence collected during the investigation, in particular the purchase orders sent by importers to the exporting producer, the explanations provided by the exporting producer about its production process, the chemical content and elongation and tensility characteristics mentioned on certificates of qualities, the commercial invoices issued by the exporting producer and the absence of any commercial information related to the improved characteristic of the product under investigation compared to the product concerned sent to any customer. All the information confirmed that better properties were not requested by the customers nor provided by the producer of the product under investigation. Therefore, it was concluded that an expert’s opinion is not necessary. In consequence, this request was rejected.

(24) In this aspect, the investigation has confirmed that the improved qualities mentioned above in recital 20 depend on the content of lanthanum and on whether an optimised production processes is being used. However, the cooperating exporting producer did not demonstrate that it put in place the optimised production processes for the product under investigation exported to the Union during the IP. The claim was therefore rejected as unfounded.

(25) One party claimed that the product under investigation has improved coating properties. However, the party did not submit sufficient evidence to support this statement. The claim was therefore rejected as unfounded.

(26) Two parties claimed that fracture toughness is improved for the product under investigation. This means that the wire never breaks when unrolled inside a spraying machine. However, these parties were asked to provide supporting documentation but failed in doing this. In the absence of any supporting evidence, this claim was disregarded.

(27) In the light of the above, it has been concluded that the product under investigation has no different properties compared to the product concerned.

(28) Furthermore, the evidence collected during the verification visits shows that users/importers did not specifically request the product with the claimed better physical characteristics as described above in recital 20 when placing their orders. None of them requested a specific content of lanthanum but did request at least 99 % of pure molybdenum. Only one customer requested specific physical characteristics for the parameters of elongation and tensility. In this case, the exporting producer tested these parameters and provided this customer with certificates of quality. As these certificates were also delivered for the product concerned, it was possible to compare the two products for these parameters. The comparison showed that the requirements for elongation and tensility were identical for both products.

(29) In addition, the investigation showed that the exporting producer did not inform the market or their customers on the alleged advantages of the product under investigation over the product concerned and did not market the slightly modified MoLa wires as a new or different product.

(30) Based on a patent registered by Plansee in January 1996, one party claimed that the product concerned and the product under investigation are different products. Analysis of this claim showed that the patent does not concern the product under investigation but the use of a molybdenum alloy as a lead-in conductor for lamps, electron tubes and similar components. Furthermore, the diameters of this product type are lower than the diameters defined for the product under investigation. In addition, as mentioned above in recital 24, the alleged improved qualities of MoLa over the product concerned depend on the use of an optimised production process. The claim is therefore rejected.

(31) Therefore, it has to be concluded that from a customer’s point of view, the product concerned and the product under investigation are very similar.

(32) One party claimed that the commercial offers published on Plansee’s web site show that they offered the product under investigation not only in the field of thermal spraying but also in various other domains (i.e. lamp components and wire cutting industries). However, Plansee commented that the commercial information published on its web site indicates the diameters for which they are able to supply. In addition, the investigation showed that Plansee’s sales for other domains are very limited (i.e. less than 2 % in quantity compared with the sales of the product concerned) and that an optimised production processes was used. Therefore, this claim was rejected.

(33) One party claimed that Plansee was already producing the product under investigation when it lodged the complaint which led to the initiation of the original investigation and since Plansee considers that the product under investigation and the product concerned share the same essential characteristics, they should have included it in the scope of the original investigation. However, as explained above in recital 32, the investigation confirmed that this particular MoLa wire is different from the product under investigation. The product diameters are generally below 1 mm and it is mainly used in the lighting industry. Moreover, as mentioned below in Table 1, the imports of the product under investigation started only after provisional measures were imposed on the product concerned. Therefore, in the absence of any imports of the product under investigation during the IP of the original investigation, there were no reasons to include this product in the product scope. The claim is therefore rejected as unfounded.

(34) One party claimed that the expansion of the range from 99,95 % down to 97 % will cover all kinds of molybdenum alloys, and in consequence these products would not be available on the Union market (i.e. for example for the redrawing market). Firstly, this party did not present any evidence supporting this statement. Secondly, the investigation has shown that only one exporting producer was exporting MoLa to the Union during the IP and no other alloys which would be covered by the definition of the product under investigation. Thirdly, the investigation showed that the market in the Union for redrawing and sales of molybdenum alloys is very limited. Finally, the extension of the measures will not make it impossible to import the product under investigation. The claim was therefore rejected.

(35) As far as the questions of whether or not the modification mentioned in recital 19 altered the essential characteristics of the product concerned, the information provided by the cooperating parties, analysed in recitals 24 to 34, revealed that the product under investigation has the same basic physical characteristics and uses as the product concerned.

(36) In consequence, it was found that there are no relevant physical characteristics differences between the product under investigation and the product concerned. Therefore, it was concluded that the product under investigation is considered as a like product within the meaning of Article 1(4) of the basic Regulation.

(37) Therefore, it has to be concluded that the product under investigation is only slightly modified compared to the product concerned, imported for no other economic justification but to circumvent the anti-dumping duties in place.

(38) Information about the Union imports could not be directly obtained from Eurostat data, as the CN code under which the product under investigation is declared includes also other products than the product under investigation. Therefore, in the absence of specific import statistics for the product under investigation, Eurostat data was adjusted in accordance with the method suggested in the request. Accordingly, the volume of imports of the product under investigation into the Union was established on the basis of an estimation of Union consumption of molybdenum wires adjusted by the total Union production of the product concerned. This method was found to be reliable to obtain data relating to the product under investigation.

(39) As mentioned in recital 11, only one exporting producer in the PRC cooperated with the investigation. However, on the basis of the comparison of the information given by this exporting producer with the adjusted Eurostat data mentioned in the previous recital, it was established that this company represented most of the total Union imports of the product under investigation during the IP and was thus considered to be representative for the total Union imports of molybdenum wires.

(41) The investigation confirmed that parties which purchased the product under investigation after the imposition of the provisional duty were purchasing the product concerned before the imposition of the measures. These parties purchased 99,8 % of the total quantity of the product under investigation during the RP.

(42) Two interested parties claimed that as early as in 2007, they started a project to develop the product under investigation in the PRC and thus the exports of the product under investigation was not linked to the imposition of the measures on the product concerned. However, the investigation did not confirm the materiality of such a project. Altogether, one e-mail, the minutes of one phone conference and the export of a sample of the product under investigation for further analysis were provided. Furthermore, this project did not result in any sales of the product under investigation to the Union before the imposition of the provisional measures on the product concerned, namely in October 2010. Nevertheless, the fact that a project was allegedly initiated in 2007 does not change the finding that the product concerned and the product under investigation are similar. The conclusion reached in the investigation that there was no economic justification for the export of the product under investigation than the imposition of the measures on the product concerned also remain valid.

(44) Based on the above, the claim is rejected.