Commission Implementing Regulation (EU) 2021/970 of 16 June 2021 making imports of certain iron or steel fasteners originating in the People’s Republic of China 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 Article 14(5) thereof,

After informing the Member States,

Whereas:

• (1) On 21 December 2020, the European Commission (‘the Commission’) announced, by a notice published in the Official Journal of the European Union ² (‘the notice of initiation’), the initiation of an anti-dumping proceeding with regard to imports into the Union of certain iron or steel fasteners originating in the People’s Republic of China (‘the anti-dumping proceeding’), following a complaint lodged on 6 November 2020 by the European Industrial Fasteners Institute (‘EIFI’ or ‘the complainant’) on behalf of producers representing more than 25 % of the total Union production of iron or steel fasteners.

1. PRODUCT SUBJECT TO REGISTRATION

• (2) The product subject to registration (‘the product concerned’) is certain fasteners of iron or steel, other than of stainless steel, i.e. wood screws (excluding coach screws), self-tapping screws, other screws and bolts with heads (whether or not with their nuts or washers, but excluding screws and bolts for fixing railway track construction material), and washers, originating in the People’s Republic of China (‘China’ or ‘the country concerned’). This product is currently classified under CN codes 7318 12 90, 7318 14 91, 7318 14 99, 7318 15 58, 7318 15 68, 7318 15 82, 7318 15 88, ex 7318 15 95 (TARIC codes 7318159519 and 7318159589), ex 7318 21 00 (TARIC codes 7318210031, 7318210039, 7318210095 and 7318210098) and ex 7318 22 00 (TARIC codes 7318220031, 7318220039, 7318220095 and 7318220098). The CN and TARIC codes are given for information only.

2. REQUEST

• (3) On 22 January 2021, the complainant submitted a registration request pursuant to Article 14(5) of the basic Regulation. The complainant requested that imports of the product concerned be made subject to registration so that measures may be applied against those imports retroactively from the date of such registration, provided all conditions set out in the basic Regulation are met.

• (4) On 11 March 2021, the complainant provided updated import statistics in support of its request for registration.

• (5) Two importers/distributors of fasteners (Roth Blaas Srl and Eurotec GmbH) and one association representing fasteners distributors (European Fasteners Distributor Association or ‘EFDA’), submitted comments in reaction to the request. EFDA requested a hearing which took place on 9 March 2021. Roth Blaas Srl and Eurotec GmbH also requested a hearing which took place on 11 May 2021.

3. GROUNDS FOR REGISTRATION

• (6) According to Article 14(5) of the basic Regulation, the Commission may direct the customs authorities to take the appropriate steps to register imports, so that measures may subsequently be applied against those imports from the date of such registration, provided all conditions set out in the basic Regulation are met. Imports may be made subject to registration following a request from the Union industry, which contains sufficient evidence to justify such action.

• (7) The complainant alleged that, on the basis of the available statistics, there had been a substantial rise in imports in the period following the investigation period (July 2019 to June 2020) (‘IP’) of the current investigation, which was likely to seriously undermine the remedial effect of the potential definitive duties. Moreover, the complainant argued that also in view of the history of dumping on the product concerned ³, the importers were, or should have been, aware of the dumping practices from the countries concerned.

• (8) The Commission examined the request in the light of Article 10(4) of the basic Regulation. The Commission verified whether the importers were aware of, or should have been aware of, the dumping as regards the extent of the dumping and the injury alleged or found. It also analysed whether there was a further substantial rise in imports which, in the light of its timing and volume and other circumstances, was likely to seriously undermine the remedial effect of the definitive anti-dumping duty to be applied.

3.1.   Awareness of the importers of the dumping, the extent thereof and the alleged injury or a history of dumping

• (9) At this stage, the Commission has at its disposal sufficient evidence that imports of the product concerned from China are being dumped. The complaint provided sufficient evidence of dumping, based on a comparison of the normal value with the export price (at ex-works level) of the product concerned when sold for export to the Union. As a whole, and given the extent of the alleged dumping margins ranging from 126 % to 270 %, this evidence provided sufficient support that the exporting producers practice dumping.

• (10) The complaint also provided sufficient evidence of alleged injury to the Union industry, including a negative development of key performance indicators of the Union industry.

• (11) That information was contained both in the non-confidential version of the complaint and in the Notice of initiation for this proceeding published on 21 December 2020 ⁴. By its publication in the Official Journal of the European Union, the Notice of initiation is a public document accessible to all importers. Furthermore, as interested parties in the investigation, importers have access to the non-confidential version of the complaint and the non-confidential file. Therefore, the Commission considered that, on this basis, importers were aware, or should have been aware, of the dumping and of its extent thereof, as well as of the alleged injury.

• (12) The two importers mentioned in recital 5 claimed that there was no evidence that importers were aware of, or should have been aware of, the extent of the alleged dumping and injury. The two importers claimed in particular that the evidence provided by the complainant on dumping and resulting injury was merely limited to the one provided in the complaint and that ‘awareness’ would require ‘positive knowledge’ of the fact that imports were dumped, the extent of the dumping and the extent of the injury caused by such dumping. EFDA and the China Chamber of Commerce for Import and Export of Machinery and Electronic Products (‘CCCME’) asserted in addition that there was no proof that importers were aware that a complaint was being prepared by EIFI, or that an investigation was being initiated, and therefore there was no proof that importers were aware of the injurious dumping taking place.

• (13) The same parties claimed that there was no history of dumping pointing out that the injurious dumping established in 2009 ⁵ was found to be not in line with the WTO anti-dumping Agreement by the WTO Dispute Settlement Body ⁶.

• (14) As set out in recital 11, with the publication of the notice of initiation in the Official Journal of the European Union, importers were made aware, or at least should have been aware of the dumping. The Notice of Initiation is a public document accessible to all interested parties including the importers. Furthermore, as interested parties, the importers have access to the non-confidential version of the complaint. Contrary to these parties’ assertion, there is no requirement in the basic Regulation that there be ‘positive knowledge’ of dumping, nor that there be proof that they were actually aware of the filing of the complaint and/or the initiation of the investigation, because Article 10(4)(c) states ‘or should have been aware’ so as to cover clearly the situations where importers are not actually aware but should have been aware of dumping. Further to the publication of the Notice of initiation the Commission considers that importers were indeed in the position to have positive knowledge about the evidence available on injurious dumping, or at least should have been aware of such evidence. These claims were therefore rejected.

• (15) Moreover, in contrast to what was suggested by the interested parties concerned, Article 10(4) of the basic Regulation does not require that a positive finding of injurious dumping was made by the Commission in the past. It is sufficient that importers were aware or should have been aware of the dumping, the extent thereof and the alleged injury. This was indeed the case in the present investigation as outlined in recital 14. Therefore, this claim was also rejected.

• (16) With regard to history of dumping, since the Commission considers that the requirement of awareness of dumping by importers is met, it is not necessary to analyse whether this requirement that there be history of dumping is met, because this is an alternative requirement to the awareness one under Article 10(4)(c) of the basic Regulation. Therefore, this claim is without object.

• (17) On this basis, the Commission thus concluded that the criterion for registration in Article 10(4)(c) of the basic Regulation was met.

3.2.   Further substantial rise in imports

• (18) The Commission analysed this criterion in Article 10(4)(d) of the basic Regulation based on the statistical data concerning imports of the product concerned from China available in the Surveillance 2 database. For assessing whether a further substantial increase had taken place since the initiation of the investigation, the Commission first defined the periods to be compared. On the one hand, it assessed the import data from China following the initiation of the anti-dumping investigation (i.e. the point in time as of when importers were aware, or should have been aware, of dumping practices) until the most recent period available, i.e. the period between January 2021 and April 2021. On the other hand, the Commission considered the Chinese imports for the same period during the IP, as well as the monthly average import volumes in the full IP.

• (19) The comparison shows that the monthly average import volume from China developed as follows:

Table 1

Import volumes from the countries concerned (tonnes)

• (20) On the basis of these statistical data, the Commission found that the average monthly volume of imports of the product concerned from China in the period from January 2021 to March 2021, i.e. after initiation of the anti-dumping investigation, was 32 % higher than the average monthly imports during the IP and 43 % higher than during the same period of the preceding year during the IP.

• (21) EFDA claimed that there was no substantial rise in imports, pointing to the complaint that showed a decrease in imports from China between 2019 and the IP and asserting that any increase after the IP would only reflect historical trade flows and any increase in 2020 only the recuperation of the market following the stagnation due to the COVID19 pandemic. EFDA also claimed that given the lack of supply of standard fasteners in the Union, importers were forced to import these products from China, as the only viable source of supply. They added that as also the Union industry itself imported standard fasteners, it caused the increase in imports at least partly itself. Finally, EFDA argued that Chinese imports only replaced imports from other third countries.

• (22) Similarly, the CCCME argued that there was no increase of imports between 2019 and the IP and claimed that even though there has been an increase of imports between 2019 and 2020 such increase cannot be considered as substantial, in particular considering that the overall imports (China and other third countries) decreased during this period. The CCCME also claimed that the data provided by the complainant in its request for registration were not representative, as they concerned shipments that were already ordered and shipped prior to the end of the IP and prior to the initiation of the investigation. The CCCME also alleged that Union industry at least partly caused the increase of imports itself.

• (23) The two abovementioned importers claimed that the increase in imports was not significant and in any event justified by an increase in the demand for fasteners following a stagnation in the Union market in the first half of 2020 due to the COVID-19 pandemic. They further claimed that due to the COVID-19 pandemic there has been a reduction in freight offers and available container space causing a significant increase in freight costs. This made shipments from China increasingly difficult and stockpiling not a viable option.

• (24) EFDA asserted that there was no stockpiling in the Union, to the contrary EFDA members were in fact having difficulties to meet their customers’ demands in the Union, given the difficult supply situation further described in recital 44.

• (25) As set out in recital 18, the Commission considered that in order to assess an increase in imports, the period after the initiation of the current investigation (January 2021 to March 2021) should be taken as reference as only from that period onwards importers were aware, or should have been aware, of dumping practices. As shown in the above Table 1, the comparison of the import trend in the three months after the initiation with the same period in the IP on the one hand and with the monthly average during the IP on the other hand, clearly shows a significant increase of imports of more than 30 % in either case.

• (26) The argument concerning the Union demand of the product concerned as a result of the COVID-19 pandemic is not directly relevant in assessing whether a substantial increase of imports took place pursuant to Article 10(4) of the basic Regulation, which is an objective criterion and does not require an assessment of the reasons for such increase. In any event, even if this argument was relevant, the Commission notes that imports of the product concerned from China after initiation (January to March 2021) also rose by 35 % as compared to the same period in 2019 (pre-pandemic). The statistics available therefore in any event do not confirm the allegations made that the increase of imports merely represent the recuperation of the previously stagnation in the Union market. Rather, the increase of imports is equally apparent in comparison to the import volume during the first 3 months of 2019, i.e. when the market was not affected by the pandemic.

• (27) As for the claim concerning the supply situation in the Union, this is also a consideration not directly relevant in the context of the objective criterion concerning the rise in imports under Article 10(4)(d) of the basic Regulation for the registration of imports. These kinds of considerations may be relevant and assessed in the context of the Union interest in accordance with Article 21 of the basic Regulation. Therefore, this claim was irrelevant and did not need to be addressed in this context.

• (28) Regarding the argument that stockpiling would not be a viable option due to the increased transport cost, this claim is not supported by the import statistics, which clearly show a significant increase of imports in the first three months after the initiation of the investigation, as shown above in Table 1. In any event this claim would have no bearing on the requirement of further rise of imports, which is an objective criterion. Therefore, this claim was dismissed.

• (29) In view of the above considerations, the Commission concluded that the second criterion for registration was also met.

3.3.   Undermining of the remedial effect of the duty

• (30) The Commission has at its disposal sufficient evidence that additional injury would be caused by a continued rise in imports from China, also in light of its timing, volume and other circumstances, thereby likely to seriously undermine the remedial effects of possible definitive anti-dumping duties.

• (31) As established in recitals 18 to 29, there is sufficient evidence of a substantial rise in imports taken as a whole of the product concerned in the period following the initiation of the investigation. The substantial magnitude of this increase already points to a likely undermining of the remedial effect of a definitive duty if the legal conditions are met.

• (32) With regard to import prices, according to the Surveillance 2 database, the average import price from the country concerned has increased by 6,0 % when comparing the period of January 2021 to April 2021 to the same period in the preceding year, and has increased by 7,3 % when compared to the monthly average in the investigation period, as reflected in Table 2 below.

Table 2

Import prices from the country concerned (EUR/tonne)

• (33) However, this price increase has to be seen in the context of an increase of both the main raw material for the product concerned and of the internationaly freight costs, both starting from the second half of 2020 as detailed below.

• (34) Concerning the raw materials, the product concerned is mostly made of steel, namely hot rolled coils. According to the information available at this stage, steel represents around 70 % of the total cost of manufacturing of fasteners. The price of steel has increased globally between April 2020 and April 2021, above 50 % in all the main markets ⁷. China is no exception and the increase of prices of hot rolled coils between April 2020 and April 2021 is 74 % ⁸. The increase in price of the product concerned imported from China in the first three months of 2021 (i.e. 6,1 % compared to the same period of 2020 or 4,9 % compared to the average monthly value in the IP), is significantly lower than the global rise in the cost of the main raw material, namely hot rolled coils (74 %). Therefore, seen in this context, this price increase is largely insufficient to recover the massive increase in the price of the raw materials, pointing to significant price depression and hence likely to substantially undermine the remedial effect of the possible definitive anti-dumping duty.

• (35) Concerning freight, the interested parties stated that in the second half of 2020 the global shipping costs, and in particular those between Asia and Europe, became exceptionally expensive. Evidence of this increase, often reaching 150 %, is publicly available ⁹. Freight costs account for around 3 % of the invoice price to Europe, based on the unverified replies of the sampled exporting producers. This suggests that more than half of the observed price increase of the imports of the product concerned would be already explained by the evolution of the freight costs. Taking this other factor into account would suggest that the price of the product concerned actually decreased, as the impact of freight is for the benefit of the provider of the shipping services and is also beyond the pricing power of the exporting producers.

• (36) In addition, the price increase occurred in a context where the prima facie evidence showed an undercutting margin ranging from 27 % to 72 % and an underselling margin ranging from 41 % to 251 %. Therefore, import price levels remained at significantly injurious levels and even decreased in relative terms, in light of the global cost increase of steel and freight.

• (37) The significant additional import volumes recorded after the initiation of the investigation are also very likely to lead to an increase of market share from the Chinese imports.

• (38) The two abovementioned importers, EFDA and the CCCME claimed that it is doubtful that the Union industry suffered material injury and that such injury would be caused by the Chinese imports. The two importers asserted that there would not be any evidence of material injury in the complaint. EFDA and the CCCME referred to the General Court ¹⁰ claiming that when assessing whether imports ‘seriously undermine the remedial effect of the duties’, the Commission should assess whether the Union industry suffered material injury, while there is no such evidence in the complaint.

• (39) The CCCME argued in addition, that any increase in imports could not ‘seriously undermine the remedial effect of the duties’, as the Union industry is producing predominantly special fasteners that were not in competition with the imports from China that are predominantly standard fasteners.

• (40) Regarding these claims, the Commission, as set out in the notice of initiation, considered that there is sufficient prima facie evidence in the complaint showing that the Union industry suffered material injury from Chinese imports of the product concerned and these arguments were therefore rejected.

• (41) Regarding the claim of the CCCME that Chinese imports were not in competition with the sales of the Union industry on the Union market, this was not supported by any evidence and contradicts the prima facie evidence supplied in the complaint, which showed an increase in dumped imports from China that coincided with the deterioration of the situation of the Union industry, as set out in the noice of initiation. This claim was therefore rejected.

• (42) On the basis of the above, the Commission concluded that all of the above elements point to the fact that the further rise in imports from China after the initiation of the investigation, also in light of its timing, volume and other circumstances, is likely to seriously undermine the remedial effects of possible definitive anti-dumping duties. Therefore, this criterion in Article 10(4)(d) of the basic Regulation was also met.

3.4.   Other arguments raised by the interested parties

• (43) The two abovementioned importers claimed that the evidence needed for registration should be of a higher standard than the evidence required for initiation, in particular in view of a potential retroactive application of the duties.

• (44) EFDA claimed that a retroactive collection of the definitive duties would be contrary to the Union interest. They argued that first, the Union industry would be unable to supply standard fasteners, and therefore those standard fasteners needed to be sourced from China. In this context, EFDA asserted that sourcing fasteners from China would become increasingly difficult due the long delivery terms, the refusal of Chinese exporters to supply fasteners awaiting the outcome of the current investigation, the lack of spare capacity in China, and the shortage of containers from Asia which was aggravated by the blocking of the Suez Canal. EFDA also pointed to an overall shortage of raw materials for fasteners producers in the Union and the fact that no other viable sources of supply than China would be available. Second, EFDA asserted that due to this poor supply situation, the registration of imports and the imposition of provisional measures would have a detrimental effect on the downstream industry and there is no need to retroactively collect definitive duties as of the the date of registration.

• (45) Similarly, the CCCME claimed that standard fasteners are hardly available in the Union and no other viable sources of supply than China existed.

• (46) Regarding the standard of the evidence for registration, the Commission analysed statistical data from the Surveillance 2 database as well as other information at its disposal that showed a substantial increase in imports at very likely injurious price levels. This evidence is fully reliable and these parties have not substantiated how this evidence would not be reliable or what better evidence would be available that has not been used. This claim was therefore rejected.

• (47) Regarding the standard of evidence required in the context of Article 10(4) of the basic Regulation, the Commission based its conclusions on the best information available at this stage, including the complaint that lead to the initiation of the investigation. It is not required to have positive findings in this regard, as such findings by definition could never be made prior to the imposition of provisional measures. Any other approach would completely deprive the registration tool of its effet utile. Regarding the other claims put forward by EFDA, they concern either the retroactive collection of definitive duties and/or the imposition of provisional measures. The Commission notes that the decision to impose provisional measures and subsequently the decision to possibly collect retroactively duties based on this registration regulation will only be taken at a later stage in the proceeding. These claims are therefore considered irrelevant in the context of this registration regulation. The same goes for claims regarding the Union interest, which the Commission notes to be one of the conditions to impose provisional or definitive anti-dumping measures in accordance with Article 21 of the basic Regulation, but does not need to be analysedwhen assessing the need for the registration of imports or the retroactive application of such definitive duties. Therefore, this claim was irrelevant and did not need to be addressed in this context.

• (48) EFDA pointed that Article 14(5a) of the basic Regulation specifically requires that the conditions of Article 10(4)(c) and (d) of the basic Regulation are met. In other words, it argued that a Commission decision to register imports should take into account these criteria also when imports are registered under Article 14(5) of the basic Regulation, that is when based on a request by the Union industry.

• (49) It is noted that, as set out in recital 8, in line with the legislation and its constant practice when applying Article 14(5) the Commission did examine the request for registration in light of Article 10(4) of the basic Regulation, which sets out the substantive conditions to proceed with registration. As described in detail in recitals 9 to 42, Article 10(4)(c) and (d) of the basic Regulation were indeed considered to be met and EFDA’s claims in this regard were therefore rejected.

3.5.   Rights of defence and disclosure

• (50) EFDA and the CCCME claimed that certain additional information provided by EIFI concerning its request for registration was only made available to the interested parties several weeks later, which would have deprived them from exercising their legitimate rights of defence.

• (51) The CCCME also claimed that the Commission should disclose any decision to register imports sufficiently in advance and thus allow interested parties to comment on such decision.

• (52) The Commission notes that the non-confidential information provided by the complainant was indeed made available to interested parties that provided additional comments. The Commission accepted and assessed all these comments before taking a decision. Therefore, the Commission considered that the parties’ rights of defence were fully granted in this respect.

• (53) Regarding the request for prior disclosure, it is noted that such step is not foreseen in or required by the basic Regulation. In accordance with Article 14(5) of the basic Regulation the Commission may direct customs authorities to take appropriate steps to register imports following a request containing sufficient evidence to justify such action. It is also noted that by Article 1(3) of this Regulation interested parties are indeed given the opportunity to provide comments and to be heard within 21 days from the date of its publication. Finally, the Commission also points out that any decision to apply definitive anti-dumping measures retroactively will be disclosed to interested parties in accordance with Article 10(5) of the basic Regulation. This request was therefore denied.

4. PROCEDURE

• (54) The Commission has concluded that there is sufficient evidence to justify making imports of the product concerned subject to registration in accordance with Article 14(5) of the basic Regulation.

• (55) All interested parties are invited to make their views known in writing and to provide supporting evidence. The Commission may hear interested parties, provided that they make a request in writing and show that there are particular reasons why they should be heard.

5. REGISTRATION

• (56) Under Article 14(5) of the basic Regulation imports of the product concerned should be made subject to registration for the purpose of ensuring that, should the investigations result in findings leading to the imposition of anti-dumping duties, those duties can, if the necessary conditions are fulfilled, be levied retroactively on the registered imports in accordance with the applicable legal provisions.

• (57) Any future liability would emanate from the findings of the anti-dumping investigation.

• (58) The allegations in the complaint requesting the initiation of an anti-dumping investigation estimate dumping margins ranging from 126 % to 270 % and an injury elimination level of ranging from 41 % to 251 % for the product concerned. The amount of possible future liability would normally be set at the lower of those levels according to Article 7(2) of the basic Regulation.

6. PROCESSING OF PERSONAL DATA

• (59) Any personal data collected in the context of this registration will be treated in accordance with Regulation (EU) 2018/1725 of the European Parliament and of the Council 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 ¹¹,

HAS ADOPTED THIS REGULATION:

Article 1

Article 2

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, 16 June 2021.

For the Commission

The President

Ursula VON DER LEYEN