Commission Implementing Regulation (EU) 2021/1930 of 8 November 2021 imposing a definitive anti-dumping duty and definitively collecting the provisional duty imposed on imports of birch plywood originating in Russia

(219) In the absence of any other comments regarding the interest of unrelated importers, the conclusions set out in recitals (189) to (190) of the provisional Regulation were confirmed.

(220) Following provisional disclosure, some parties claimed that anti-dumping duties would threaten users’ profitability and competitiveness. It was also claimed that the assessment of the interest of users in the provisional Regulation was based on a study commissioned by the complainant and that the Commission disregarded data submitted by importers and users in their questionnaires.

(221) Concerning the use of data submitted for interested parties, the Commission recalled that the assessment of the Union interest, including the interest of users, was made based on available information, including importers and users questionnaires as well as information provided by interested parties. Concerning the impact on users, as stated in recital (194) of the provisional Regulation, the imposition of measures is likely to have a different impact across users, depending on the share of birch plywood costs in the total costs for that sector and the ability to pass on costs to downstream consumers. On the basis of the explanations detailed in recitals (194) and (195) of the provisional Regulation the Commission established that any negative impact of measures on users does not to outweigh the positive effect of measures on Union producers.

(222) Following provisional disclosure, some parties claimed that Union producers refused to supply certain customers or certain products.

(223) Following final disclosure the Birch Plywood Alliance and Sveza Group claimed that the lack of sufficient supply from Union producers is not circumstantial or temporary but structural, and that Union producers refuse to supply certain customers or products.

(224) The Commission recalled that there is no obligation on the Union industry to fully meet Union demand. In fact, as shown in table 1 and table 4 of the provisional Regulation, the Union industry does not have the capacity to supply the entire Union consumption. Consequently, inevitably there are some customers, which would not be directly supplied by the Union industry. However, as set out in recital (186) of the provisional Regulation, the measures are not meant to bring Russian imports to a halt, but rather to allow the continued sourcing of birch plywood from Russia at fair prices, as has also been after the case following the imposition of provisional duties.

(225) In addition, as stated in recital (187) of the provisional Regulation, the Union industry has developed an extensive network of retailers, allowing the Union industry to reach small customers which do not have the capacity to buy entire containers. Furthermore, as mentioned above, any consumer can continue sourcing from Russian producers as well as from other third countries, like Ukraine and Belarus.

(226) Following provisional disclosure, Blomberger Holzindustrie GmbH, a user of birch plywood, claimed that its business would be negatively affected since they operate with long term contracts which cannot be modified on a short notice. However, at the date of the initiation all known interested parties were notified of the start of the proceeding. The Notice of initiation, published in the official journal, provided a detailed schedule of the investigation. An open version of the complaint, containing information on the alleged levels of dumping, was also available from the start of the proceeding. Similarly, all interested parties received a pre-disclosure documents with the expected level of duties, four weeks before its application. As a consequence, the Commission concluded that sufficient information was made available in due time to interested parties on the impact that could arise from the investigation.

(227) Following provisional disclosure, numerous users and other interested parties claimed that the measures would have a material impact on the users’ financial situation. It was claimed that the situation was particularly aggravated by the post-IP evolution of the market, namely a significant increase in prices, as well as transport prices, forcing users to pay a much higher price for the product concerned compared to the IP. The interested parties argued that users are not able to continue passing on the price increase deriving from the duties in the post-IP market situation to the final customers, and that therefore the analysis on the impact on users and importers at provisional stage was invalidated by the post-IP developments. In this context some parties requested the Commission to assess available post-IP data in order to better asses the Union interest.

(228) The Commission recalled that the investigation of dumping and injury covered the period from 1 July 2019 to 30 June 2020. The examination of trends relevant for the assessment of injury covered the period from 1 January 2017 to the end of the investigation period. Therefore, the findings of this investigation are based on the information concerning the period mentioned before. In this respect, the Commission considered that the allegedly abnormally high post-IP prices of the product concerned and increase of transport were expected to be of a temporary nature responding to a post-COVID global economic recovery and rise in demand. This was confirmed by an outlook of the World Bank (23). Accordingly, the information available to the Commission on post-IP developments did not change the conclusions as set out above and in the provisional Regulation.

(229) Whereas it appeared to be generally accepted that prices will stabilise at a certain point in time, it was difficult for the Commission to determine at which levels and how long the situation of high demand and high prices would last. In any event, the Commission, exceptionally, requested post-IP data about in particular production volume, sales volume, sales prices and profitability of the Union producers, and collected the views of interested parties, in order to further assess the impact of recent market development on the Union interest in due course.

(230) In the absence of comments with respect to this section, the Commission confirmed its conclusions set out in recitals (197) to (200) of the provisional Regulation.

(231) Following provisional disclosure, the claim was made that the Commission attributed importance to unsubstantiated arguments by plywood associations of other types of wood. It similarly argued that the argument according to which “higher prices” of birch would have “attracted demand that traditionally was for other type of woods” is illogic. The Commission noted that the argument in recital (201) of the provisional Regulation indicated that certain changes in the demand of other types of plywood were triggered by the decrease of prices of birch plywood relative to the prices of plywood from of other types of wood. Moreover, in the provisional Regulation the Commission considered the arguments submitted by the plywood associations of other types of wood, but did not attribute special importance to these, since, in any event, those arguments would not have changed the conclusion that measures would have a positive effect on Union producers.

(232) Following provisional disclosure, the exporting producer Segezha claimed that the imposition of measures would be contrary to the European Green Deal since measures would result in an increase of carbon leakage. This claim was, however, already covered by recital (202) of the provisional Regulation. In the absence of any further additional information that substantiated this argument, the Commission confirmed its conclusion of the provisional Regulation.

(233) Following the final disclosure, Sveza Group claimed that the balance of interests required under the Union interest assessment did not tip in favour of Union producers. According to Sveza, Union producers are not expected to significantly benefit from the imposition of measures, either volume-wise or price-wise. They also remain unable to supply most users, in a context exacerbated by shortages and rising prices. By contrast, users would be required to bear an extra cost burden in the same context, as they have no choice but to continue sourcing from Russia, at prices, which were allegedly not undercutting or underselling the Union producers.

(234) The Commission recalled that for the Union interest test under Article 21 of the basic Regulation the need to eliminate the trade distorting effects of injurious dumping and to restore effective competition shall be given special consideration, whilst measures, as determined on the basis of the dumping and injury found, may not be applied where the Commission, on the basis of all the information submitted, can clearly conclude that it is not in the Union's interest to apply such measures.

(235) It follows that to not apply measures, the balancing of various interest must clearly speak against the imposition of measures. It is, contrary to what Sveza Group suggested, not sufficient that the balancing test does not “tip in favour” of the imposition of measures. In any event, as explained in the preceding recitals, the Commission analysed in detail the various interests and the impact the imposition of measures would have and found that, on balance, the imposition of measures would clearly not be against the Union interest. The claim was therefore rejected.

(236) In view of the above and as described in recital (202), the post IP situation is considered to be of a temporary nature. In any event the analysis of the post-IP data showed that the situation of the Union industry, as concluded in section 4.5, has not been significantly reversed. It also showed that imports from Russia to the Union market continued after the imposition of provisional measures, in response to Union demand. Therefore, the Commission considered that the imposition of definitive measures would clearly not be against the Union interest under Article 21. Therefore, the Commission confirmed the conclusions set out in recital (204) of the provisional Regulation.

(237) Following provisional disclosure, some parties claimed that, should measures be imposed, they should be set in the form of a minimum import price since it would balance interest of different parties, would prevent a shortage of the product concerned, and would safeguard the competition in the market. Similarly it was claimed that the minimum import price should take into account the price difference between square and rectangular-shaped plywood.

(238) The Commission considered that as the product concerned was produced and sold in a wide variety of product types, the imposition of measures in the form of a minimum import price was neither practicable nor would it accurately reflect the level of dumping.

(239) In view of the conclusions reached with regard to dumping, injury, causation and Union interest, and in accordance with Article 9(4) of the basic Regulation, definitive anti-dumping measures should be imposed in order to prevent further injury being caused to the Union industry by the dumped imports of the product concerned.

(241) The individual company anti-dumping duty rates specified in this Regulation were established on the basis of the findings of this investigation. Therefore, they reflect the situation found during this investigation with respect to these companies. These duty rates are exclusively applicable to imports of the product concerned originating in the country concerned and produced by the named legal entities. Imports of the product concerned produced by any other company not specifically mentioned in the operative part of this Regulation, including entities related to those specifically mentioned, should be subject to the duty rate applicable to ‘all other companies’. They should not be subject to any of the individual anti-dumping duty rates.

(242) 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 (24). 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 regulation about the change of name will be published in the Official Journal of the European Union.

(243) To minimize the risks of circumvention due to the difference in duty rates, special measures are needed to ensure the application of the individual anti-dumping duties. The companies with individual anti-dumping duties must present a valid commercial invoice to the customs authorities of the Member States. The invoice must conform to the requirements set out in Article 1(3) of this Regulation. Imports not accompanied by that invoice should be subject to the anti-dumping duty applicable to ‘all other companies’.

(244) While presentation of this invoice is necessary for the customs authorities of the Member States to apply the individual rates of anti-dumping duty to imports, it is not the only element to be taken into account by the customs authorities. Indeed, even if presented with an invoice meeting all the requirements set out in Article 1(3) of this Regulation, the customs authorities of Member States must carry out their usual checks and may, like in all other cases, require additional documents (shipping documents, etc.) for the purpose of verifying the accuracy of the particulars contained in the declaration and ensure that the subsequent application of the lower rate of duty is justified, in compliance with customs law. To ensure a proper enforcement of the anti-dumping duties, the anti-dumping duty for “all other companies” should apply not only to the non-cooperating exporting producers in this investigation, but to the producers which did not have exports to the Union during the investigation period.

(245) In view of the dumping margins found and given the level of the injury caused to the Union industry, the amounts secured by way of the provisional anti-dumping duty imposed by the provisional Regulation should be definitively collected up to the level established by the present Regulation.

(246) The definitive duty rates being lower than the provisional duty rates, the amounts secured in excess of the definitive anti-dumping duty rates should be released.

(247) Following final disclosure, within the deadline specified in Article 8(2) of the basic Regulation, two Russian exporting producers submitted offers for a price undertaking: SPM and UPG.

(248) According to Article 8 of the basic Regulation, the price undertaking offers must be adequate to eliminate the injurious effect of dumping and their acceptance must not be considered impractical. The Commission assessed the offers in view of these criteria and considered that its acceptance would be impractical for the following reasons.

(249) Both companies produce and sell hundreds product types with significant differences in prices. One of the companies proposed only one minimum import price (‘MIP’), which raise serious cross compensation risks within different types of products. The other exporting producer offered a MIP which for the majority of product types would be below the non-injurious price and below the levels which would properly reflect the dumping margin. Therefore, the level of minimum import price proposed was not sufficient to remove the injurious effect of dumping.

(250) One producer proposed to index the minimum import price based on the evolution of birch log prices while the second one did not propose any indexation. However, while indexation would be necessary given the price volatility established on the market, the Commission found that the index proposed did not reflect the evolution of the selling prices. Therefore, the proposed index was considered inaccurate.

(251) Birch plywood types and models cannot be easily distinguished from one another by a physical inspection. In particular, it would be very difficult to assess the coating type only by physical inspection. Without a detailed lab analysis the customs authorities would not be able to determine whether the imported product corresponds to what is being declared.

(252) The Commission sent letters to the applicants, setting out the reasons to reject the undertaking offers.

(253) UPG submitted comments thereto, but did not provide any arguments which affected the reasons to reject the offers. These comments were made available to interested parties on the case file.

(254) The Commission considered the undertaking offers unenforceable and thus impractical within the meaning of Article 8 of the basic Regulation, for the reasons set out in recitals (247) to (251), and therefore rejected the offers.

(255) In view of Article 109 of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council (25), when an amount is to be reimbursed following a judgment of the Court of Justice of the European Union, the interest to be paid should be the rate applied by the European Central Bank to its principal refinancing operations, as published in the C series of the Official Journal of the European Union on the first calendar day of each month.

(256) Article 3 of this Regulation contains an amendment with regard to the names of the seven exporting producers of the Sveza Group, and of the name of a cooperating non-sampled exporting producer, following a name change that was communicated to the Commission on 28 July 2021 and which did not affect in any manner the findings made in this investigation. The collection of provisional duties will apply to the company names as amended by Article 3 of this Regulation.

(257) The Committee established by Article 15(1) of the basic Regulation did not deliver an opinion,

HAS ADOPTED THIS REGULATION:

Article 1

Article 2

The amounts secured by way of the provisional anti-dumping duty under Implementing Regulation (EU) 2021/940 shall be definitively collected. The amounts secured in excess of the definitive rates of the anti-dumping duty shall be released.

Article 3

Article 1 (2) may be amended to add new exporting producers from Russia and make them subject to the appropriate weighted average anti-dumping duty rate for cooperating companies not included in the sample. A new exporting producer shall provide evidence that:

(a) it did not export the goods described in Article 1(1) during the period of investigation (1 July 2019 to 30 June 2020);

(b) it is not related to an exporter or producer subject to the measures imposed by this Regulation; and

(c) it has either actually exported the product concerned or has entered into an irrevocable contractual obligation to export a significant quantity to the Union after the end of the period of investigation.

Article 4

‘Sveza Group composed of seven exporting producers: JSC «SVEZA Manturovo»; JSC «SVEZA Novator»; Tyumen Plywood Plant Limited; JSC «SVEZA Ust-Izhora»; JSC «SVEZA Uralskiy»; JSC «SVEZA Kostroma»; JSC «SVEZA Verhnaya Sinyachiha» ’

is replaced by

‘Sveza Group composed of seven exporting producers: “SVEZA Tyumen” Limited Liability Company; Joint Stock Company “SVEZA Ust-Izhora”; Joint Stock Company “SVEZA Verhnaya Sinyachiha”; Joint Stock Company “SVEZA Kostroma”; Joint Stock Company “SVEZA Manturovo”; Joint Stock Company “SVEZA Novator”; Limited Liability Company “SVEZA Uralskiy” ’.

‘Murashi Plywood Factory’

is replaced by

‘LLC Murashinskiy plywood plant’.

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, 8 November 2021.

For the Commission The President Ursula VON DER LEYEN

(1) OJ L 176, 30.6.2016, p. 21.

(2) OJ C 428, 11.12.2020, p. 27.

(3) Commission Implementing Regulation (EU) 2021/940 of 10 June 2021 imposing a provisional anti-dumping duty on imports of birch plywood originating in Russia (OJ L 205, 11.6.2021, p. 47).

(4) Please refer to archive number t21.004885.

(5) These submissions concern Zhesharsky’s questionnaire reply and the reply to the deficiency letter dated on 18 January 2021. Reference can also be made to the remote cross-checking report.

(6) Please refer to archive number t21.004918.

(7) Exchange rate EUR/RUB: 7/2019 = 70,907; 8/2019 = 73,216; 9/2019 = 71,411; 10/2019 = 71,086; 11/2019 = 70,577; 12/2019 = 69,987; 1/2020 = 68,769; 2/2020 = 69,911; 3/2020 = 82,426; 4/2020 = 81,745; 5/2020 = 79,233; 6/2020 = 78,038.

(8) Weighted average exchange rate for the period July 2019 –February 2020 = 70,73.

(9) Regarding the methodology used for the establishment of the normal value for a certain product number type, the Commission uses the EUCOP dataset only in the absence of sales on the domestic market and thus DMCOP data for this product number type. EUCOP and DMCOP datasets provide the costs of manufacturing for each product number type sold respectively for the EU and for the domestic markets.

(10) Judgment of 26 October 2016, PT Musim Mas v Council, C-468/15 P, EU:C:2016:803, paras. 43 and 55-59.

(11) See also Judgment of 14 July 2021, Interpipe Niko Tube LLC, v Commission T-716/19. ECLI:EU:T:2021:457, paras. 162-163.

(12) Judgment of 14 July 2021, Interpipe Niko Tube LLC v Commission, T-716/19. ECLI:EU:T:2021:457, para. 163.

(13) Judgment of 13 October 1993, Matsushita v Council, C-104/90, EU:C:1993:837, para. 14. See also, Judgment of 10 March 2009, Interpipe Niko Tube and Interpipe NTRP v Council, T-249/06, EU:T:2009:62, para. 185.

(14) See, by analogy, Case T-26/12 PT Perindustrian dan Perdagangan Musim Semi Mas (PT Musim Mas) v Council, Judgment of the General Court of 25 June 2015, para. 60.

(15) Case T-26/12 PT Perindustrian dan Perdagangan Musim Semi Mas (PT Musim Mas) v Council, Judgment of the General Court of 25 June 2015, para. 62.

(16) Joined Cases C-191/09 P and C-200/09 P, Council and Commission v Interpipe Niko Tube and Interpipe NTRP, Judgment of the Court of Justice of 16 February 2012, paras 50-69.

(17) Quoted in footnotes 15 and 16 above.

(18) Source of data Eurostat, adjusted by applying the methodology explained in section 4.3.1.

(19) TARIC code: 4412330010

(20) CN code: 4412 33 00

(21) The ratio slightly changed to 79 % since the publication of the provisional Regulation since more recent import statistics data was available covering a wider time period. The Commission used full month’s TARIC data from the initiation of the investigation to the publication of pre-disclosure (November 2020 to April 2021).

(22) The ratio (TARIC/CN) after initiation between the import volumes of the full CN code and the imports for the product concerned based on TARIC data, for ‘Other third countries’ has been established at 8 %.

(23) World Bank estimation for major commodity products forecast price stabilization during 2021.

The World Bank, “Commodity Prices to Stabilize after Early 2021 Gains, Supported by Global Economic Recovery”,https://www.worldbank.org/en/news/press-release/2021/04/20/commodity-prices-to-stabilize-after-early-2021

(24) European Commission, Directorate-General for Trade, Directorate G, Wetstraat 170 Rue de la Loi, 1040 Brussels, Belgium.

(25) Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ L 193, 30.7.2018, p. 1).