Commission Implementing Regulation (EU) 2025/36 of 9 January 2025 imposing a definitive anti-dumping duty and definitively collecting the provisional duty imposed on imports of certain polyvinyl chloride originating in Egypt and the United States

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 9(4) thereof,

Whereas:

(1) On 15 November 2023, the European Commission (‘the Commission’) initiated an anti-dumping investigation with regard to imports of suspension polyvinyl chloride (‘S-PVC’) originating in Egypt and the United States of America (‘the countries concerned’) on the basis of Article 5 of the basic Regulation. It published a Notice of Initiation in the Official Journal of the European Union (2) (‘the Notice of Initiation’).

(2) The Commission initiated the investigation following a complaint lodged on 2 October 2023 by the Polyvinyl Chloride Trade Committee (‘the complainants’). The complaint was made on behalf of the Union industry of S-PVC in the sense of Article 5(4) of the basic Regulation. The complaint contained evidence of dumping and of resulting material injury that was sufficient to justify the initiation of the investigation.

(3) In accordance with Article 19a of the basic Regulation, on 14 June 2024, the Commission provided parties with a summary of the proposed duties and details about the calculation of the dumping margins and the margins adequate to remove the injury to the Union industry. Interested parties were invited to comment on the accuracy of the calculations within three working days.

(4) The Commission received a number of comments from interested parties.

(5) Foamalite Ltd (‘Foamalite’), a user of S-PVC located in Ireland expressed its concerns about an ‘Irish-specific problem’ as its main competitor is located in Northern Ireland and may import S-PVC with lower duties and face higher competition from a user outside the Union, especially Türkiye. Foamalite exports about a third of its production outside the Union, a large portion to the United Kingdom. The Commission notes that the use of the Union inward processing would allow the importation of S-PVC without duties when the processed good would be re-exported. This would ensure that the competitiveness of Foamalite outside the Union would not be affected by duties. Regarding the competition with a competitor located in Northern Ireland, the Commission noted that the competitor in Northern Ireland will be subject to the same measures as Foamalite in the Union, as provided for in Article 5 of the Protocol on Ireland / Northern Ireland, to the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (3).

(6) The Commission clarified that the comments made by TCI Sanmar and Foamalite did not concern the accuracy of the underlying dumping and injury calculations within the meaning of Article 19a of the basic Regulation. Therefore, the Commission did not address these comments in the provisional Regulation. However, these comments are addressed below in recitals (35) and (36).

(7) Formosa Plastics Corporation (‘Formosa’), a US producer, claimed that the Commission had made a number of clerical errors in its calculations. These comments are addressed below in recital (60).

(8) In July 2024, the Commission imposed provisional anti-dumping duties on imports of certain polyvinyl chloride (‘PVC’) originating in Egypt and the United States of America by Commission Implementing Regulation (EU) 2024/1896 (4) (‘the provisional Regulation’).

(9) Following the publication of provisional measures, the governments of Egypt and the United States, TCI Sanmar Chemicals S.A.E. (TCI Sanmar), Formosa, Oxy Vinyls, LP (‘Oxy Vinyls’), Westlake Corporation (‘Westlake’) and the complainants filed written submissions making their views known on the provisional findings within the deadline provided by Article 2(1) of the provisional Regulation.

(10) The parties who so requested were granted an opportunity to be heard. A hearing took place with Oxy Vinyls on 3 October 2024.

(11) The Commission continued to seek and verify all the information it deemed necessary for its final findings. When reaching its definitive findings, the Commission considered the comments submitted by interested parties and revised its provisional conclusions when appropriate.

(12) The Commission informed all interested parties of the essential facts and considerations on the basis of which it intended to impose a definitive anti-dumping duty on imports of S-PVC originating in Egypt and the United States of America (‘final disclosure’). All parties were granted a period within which they could make comments on the final disclosure. The government of United States, TCI Sanmar, Formosa, Oxy Vinyls, Westlake, Shin-tech, Tricon Dry Chemicals and the European PVC Window Profiles Association (EPPA) submitted comments within the deadline.

(13) Comments that have been submitted on the provisional Regulation and were repeated by the parties in their comments to final disclosure, without any new substantive elements, are addressed once in this Regulation.

(14) After provisional disclosure, the Commission received comments concerning the representativity of the sample of Union producers from the Egyptian and USA governments and Formosa. The parties questioned the representativity of a Union sample that represented about 25 % of the estimated S-PVC production and 26 % of Union sales. The USA government referred in this respect to the WTO Appellate Body report in EC – Fasteners which found that a domestic industry accounting for 27 percent of the total estimated production of the like product did not satisfy the quantitative threshold and was inconsistent with Article 4.1 of the WTO Anti-Dumping Agreement (ADA) (5).

(15) Firstly, the Commission notes that none of the interested parties provided comments on the Union producers sample when it was announced at initiation stage. Secondly, the case mentioned by the Government of the USA concerns the definition of ‘major proportion’ and initiation under 4.1 and 5.4 of the ADA respectively and not sampling. Therefore, those Articles are not applicable to the selection of the sample. This comment was rejected accordingly.

(16) The USA government also requested the Commission for an explanation as to how it selected the sample. As stated in the Notice of Initiation (6), the Commission selected a provisional sample upon initiation of the investigations and information thereon could be found in the file for inspection by interested parties (7). The Note to the file provided the name of the companies sampled and the criteria used for their selection, that is, the volume of production and sales of the like product in the EU during the investigation period. Parties were given the opportunity to comment on the provisional sample. The Commission did not receive any comments and confirmed the provisional sample.

(17) The Government of the USA and Formosa also questioned that the sample included two tollers. Certainly, INOVYN Manufacturing Belgium SA and Vynova Wilhelmshaven GmbH are producing S-PVC under tolling agreements. The Commission considers that producing S-PVC under tolling agreement does not imply that these two sampled entities are not producers, rather the contrary. Also, as the Union industry stated in its reply to these comments, the inclusion of tollers was necessary to cover the various business models applicable in the Union. The two entities that produce S-PVC under tolling agreements are amongst the largest S-PVC producers in the Union. Contrary to what the Government of the USA stated, the Commission did consider the producers’ full cost of production, having obtained access to the accounting records of the entrepreneurs to that end.

(18) Formosa also claimed that there was not enough information in the open file concerning the exact arrangements between the tollers and their entrepreneurs to make it possible for the interested parties to evaluate the representativity of the sample.

(19) However, Formosa failed to submit comments on the proposed sample of the Union industry when it was made available on the open file, neither did it comment on the completeness of the open file in the course of the investigation. In any event, the open file of the investigation included sufficient detail to identify the tollers at an earlier stage of the proceeding including their various sales structure, and hence it was possible to assess the representativity of the sample by interested parties. Therefore these claims are rejected.

(20) The Government of USA and Formosa claimed that the Commission failed to take into consideration the geographical spread of the Union industry when selecting the sample. In reply to this comment, the Commission reiterated that the sample of the Union producers was selected fully in accordance with Article 17 of the basic Regulation, as it composed of the three largest Union producers in terms production and Union sales. Furthermore, all these Union producers are located in different Member States (Belgium, Germany and the Netherlands) ensuring a good geographical spread taking into account the weight of the producing Member States. Therefore, these comments are rejected.

(21) Thus, comments about the representativity of the Union sample were rejected.

(22) In the absence of any further comments on sampling, recitals (8) to (15) of the provisional Regulation are confirmed.

(23) In the absence of any comments, recital (16) of the provisional Regulation is confirmed.

(24) The Government of USA criticised the ‘excessive redaction’ of documents by the complainants, which it considered impeded the US parties’ ability to comment on key elements of the complaint. This would be in violation of Article 6.4 and 6.5 of the WTO Anti-Dumping Agreement.

(25) The Commission analysed the issue. It found that the Government of the USA misrepresented the situation when stating that ‘all annexes to the complaint are confidential in their entirety’, when that was not the case. In the case of many annexes, the open version is identical to the confidential version. For many other annexes, the non-confidential version properly reflects the information provided in its confidential version, taking due account of company sensitive information. In some specific instances, a non-confidential summary was not possible due to the nature of the information in question. In such cases, this was justified by the party(ies) providing the information and the request for confidentiality was assessed and accepted by the Commission. The Commission therefore concluded that the non-confidential version of the complaint complied with the provisions of Article 19(2) of the basic Regulation and Article 6.4 and 6.5 of the WTO Anti-Dumping Agreement.

(26) The Government of USA also criticised the fact that comments of Oxy Vinyls regarding overly redacted material submitted by EU industry has been ignored by the Commission. In this regard it is noted that following comments from Oxy Vinyls, the Commission contacted the sampled Union producer who then submitted within the deadline provided by the Commission a revised non-confidential version of his questionnaire response.

(27) In view of the conclusions above, recitals (17) to (29) of the provisional Regulation were confirmed.

(28) Comments were received from the USA government and Formosa concerning the limited extensions given to exporting producers for replying to the anti-dumping questionnaire and lack of flexibility when setting the verification schedule, both of which creating unnecessary hardship for US respondents. The USA government pointed at the time lapse between the extended deadline for replying to the questionnaire and the imposition of provisional measures, and between the execution of an on-spot verification and the issuing of the report of that verification, to substantiate these claims.

(29) The Commission rejected these claims and considered the mentioned examples as irrelevant, given that it had allowed exporting producers time to reply to the questionnaire beyond the 37 days stipulated in the Notice of Initiation, due to Commission holidays, and that it had carefully established the verification schedule with a view to accommodate the exporting producers’ preferences as much as practically possible. It also pointed to the fact that the entire investigative process is time consuming and that exporting producers, after having submitted their questionnaire response, have been given several further opportunities to provide missing and/or additional data, up to and including during the on-spot verifications.

(30) In the absence of any further comments, recitals (30) and (31) of the provisional Regulation are confirmed.

(31) Oxy Vinyls stated that the Commission’s selected investigation period in such a way that it ensured the worst possible outcome for US exporters from the perspective of injury, as shown by the delta between US and Union contract prices. The Commission noted that the investigation period was selected in accordance with its constant practice and with Article 6(1) of the basic Regulation. Therefore, this claim is rejected.

(32) In the absence of any further comments, recital (32) of the provisional Regulation is confirmed.

(33) In the absence of any comment, the Commission confirmed its conclusions set out in recitals (33) to (38) of the provisional Regulation.

(34) In the absence of any further comments, the Commission confirmed its conclusions set out in recitals (50) to (58) of the provisional Regulation.

(35) TCI Sanmar alleged that there was an important calculation error as the reported CIF values used by the Commission were not Union border prices as transport and associated costs for all transactions made on FAS or FCA prices were not reported in its sales tables.

(36) The Commission notes that in line with its consistent practice and in order to gather the data needed to assess export prices and dumping margins in accordance with the applicable provisions under the basic Regulation, exporting producers are obliged to report for each export transaction not only the actual invoice price but also a separate CIF price of the same transaction. In case the delivery term of the underlying transaction is not CIF, the exporting producer has to estimate that CIF value. In fact, in the case at hand, the Commission relied on the CIF values provided by TCI Sanmar. Where the delivery term of the underlying transaction was CIF, the Commission aligned the CIF value erroneously reported by TCI Sanmar to the actual invoice value. The comment and the Commission’s clarification also concerned, mutatis mutandis, the CIF price used in the calculation of the injury margin (see recitals (129) and (130) of the provisional Regulation).

(37) Pursuant to final disclosure, TCI Sanmar came back to its previous comments on the issue and alleged that the Commission relied on inappropriate CIF values, and that the subsequent calculation error arose in part due to requests by the Commission to amend data that TCI Sanmar originally submitted in its questionnaire response. TCI Sanmar added that Eurostat data showed a CIF value of EUR 926 per tonne, which was significantly higher than the value the Commission had used in its calculations, also because the Eurostat CIF values included a trader’s margin (among other costs), whereas the CIF values used by the Commission did not.

(38) The Commission clarifies that under its consistent case practice, data reported by individual companies in questionnaire responses, including deficiency letter responses, take precedence over general and public statistical data, in particular if it is for use for a company-specific calculation. The statistical data are not company specific, neither are they available on a transaction-by-transaction basis. The Commission also clarified that ultimately, the responsibility to report accurate data rests with each party subject to investigation.

(39) In the absence of any further comments, the Commission confirmed its conclusions set out in recitals (59) and (60) of the provisional Regulation.

(40) It is recalled that Article 2(10) of the basic Regulation requires the Commission to make a fair comparison between the normal value and the export price at the same level of trade and to make allowances for differences in factors which affect prices and price comparability. In the case at hand the Commission chose to compare the normal value and the export price of the sampled exporting producers at the ex-works level of trade. As further explained below, where appropriate, the normal value and the export price were adjusted in order to: (i) net them back to the ex-works level; and (ii) make allowances for differences in factors which were claimed, and demonstrated, to affect prices and price comparability.

(41) In order to net the normal value back to the ex-works level of trade, adjustments were made on the account of packing costs.

(42) In order to net the export price back to the ex-works level of trade, adjustments were made on the account of transport, insurance, handling and loading as well as packing. Allowances were made on the account of credit costs where these costs affected prices and price comparability (see also recital (47) of the present Regulation and recital (67) of the provisional Regulation.

(43) After the imposition of provisional measures, TCI Sanmar reiterated previous claims, saying normal values should be adjusted downwards in view of the effects of a currency crisis on the economy of Egypt during the investigation period. For that purpose, TCI Sanmar referred to recital (64) of the provisional Regulation, which summarised a previous claim of TCI Sanmar, which inherently meant to use the exchange rate set by the Central Bank of Egypt (‘CBE’) on 6 March 2024 for the sake of calculating dumping with regard to transactions carried out during the investigation period, i.e. between 1 October 2022 and 30 September 2023. TCI Sanmar added that the underlying circumstances of the devaluation of the EGP showed that, during the investigation period, the true value of the EGP was significantly less than the published CBE Rate. In their submission following provisional disclosure, TCI Sanmar alleged the Commission had not addressed TCI Sanmar’s argument in the provisional Regulation.

(44) The Government of Egypt also made a submission after the publication of provisional measures in which it referred to TCI Sanmar’s claim in recital (43) and added that the submitted evidence (exchange rate adjustment of 6 March 2024) was relevant to the present investigation. In its submission, the Government of Egypt unclearly referred to a WTO Appellate Body Report on Argentina – Ceramic Tiles where the WTO Appellate Body had established that post-investigation-period evidence directly related to transactions in the investigation period should not be dismissed as irrelevant.