HTML PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN"EN
5.4.2013 Official
Journal
of
the
European
Union L
95/1
II
(Non-legislative acts)
REGULATIONS
COUNCIL IMPLEMENTING REGULATION (EU) No 311/2013
of 3 April 2013
extending the definitive anti-dumping duty imposed by Implementing Regulation (EU) No 467/2010
on imports of silicon originating in the People’s Republic of China to imports of silicon consigned
from Taiwan, whether declared as originating in Taiwan or not
THE COUNCIL OF THE EUROPEAN UNION,
investigation that led to the measures imposed by the
original Regulation is hereinafter referred to as ‘the
original investigation’.
Having regard to the Treaty on the Functioning of the European
Union,
1.2. Request
(2) On
15
May
2012,
the
European
Commission
(‘the
Having regard to Council Regulation (EC) No 1225/2009 of
Commission’) received a request pursuant to Articles
30 November 2009 on protection against dumped imports
13(3) and 14(3) of the basic Regulation to investigate
from countries not members of the European Community ( 1 )
the possible circumvention of the anti-dumping
(‘the basic Regulation’), and in particular Article 13 thereof,
measures imposed on imports of silicon originating in
the PRC and to make imports of silicon consigned from
Taiwan, whether declared as originating in Taiwan or
not, subject to registration.
Having regard to the proposal from the European Commission
after having consulted the Advisory Committee,
(3) The
request
was
lodged
by
Euroalliages
(Liaison
Committee of the Ferro-Alloy Industry) (‘the applicant’)
Whereas:
on behalf of producers representing 100 % of the Union
production of silicon.
1. PROCEDURE
(4) The
applicant
argued
that
there
is
no
genuine
production
1.1. Existing measures
of silicon in Taiwan and the request contained sufficient
prima facie evidence that following the imposition of the
(1) By
Implementing
Regulation
(EU)
No
467/2010
( 2 ) (‘the
measures in force, a significant change in the pattern of
original Regulation’) the Council imposed a definitive
trade involving exports from the PRC and Taiwan to the
anti-dumping duty of 19 % on imports of silicon orig
Union occurred, for which there was no sufficient due
inating in the People’s Republic of China (‘the PRC’) for
cause or justification other than the imposition of the
all companies other than the one mentioned in
measures in force. That change allegedly stemmed from
Article 1(2) of that Regulation, following the expiry
the transhipment of silicon originating in the PRC via
review and a partial interim review of the measures
Taiwan to the Union.
imposed by Council Regulation (EC) No 398/2004 ( 3 ).
The original Regulation also maintained the duty which
was extended by virtue of Council Regulation (EC) No
42/2007 ( 4 ) to imports of silicon consigned from the
(5) Furthermore,
the
applicant
argued
that
the
evidence
Republic of Korea whether declared as originating in
pointed to the fact that the remedial effects of the
the Republic of Korea or not. The measures imposed
measures in force were being undermined both in
by the original Regulation are hereinafter referred to as
terms of quantity and price. The evidence showed that
‘the measures in force’ or ‘original measures’ and the
the increased imports from Taiwan were made at prices
below the non-injurious price established in the original
investigation. Finally, there was evidence that the prices
( 1 ) OJ L 343, 22.12.2009, p. 51.
of silicon consigned from Taiwan were dumped in
( 2 ) OJ L 131, 29.5.2010, p. 1.
( 3 ) OJ L 66, 4.3.2004, p. 15.
relation to the normal value previously established for
( 4 ) OJ L 13, 19.1.2007, p. 1.
the product concerned during the original investigation.

---

L 95/2
EN
Official Journal of the European Union
5.4.2013
1.3. Initiation
30 June 2012 (‘the RP’) in order to examine the possible
undermining of the remedial effect of the measures in
(6) Having
determined,
after
consulting
the
Advisory
force and existence of dumping.
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
2. RESULTS OF THE INVESTIGATION
Commission initiated an investigation by Regulation
(EU) No 596/2012 ( 1 ) (‘the initiating Regulation’) of the
2.1. General considerations
possible circumvention of the anti-dumping measures
imposed on imports of silicon originating in the PRC
(13) In
accordance
with
Article
13(1)
of
the
basic
Regulation,
and also directed the custom authorities to register
the assessment of the existence of circumvention was
imports of silicon consigned from Taiwan, whether
made by analysing successively whether there was a
declared as originating in Taiwan, or not.
change in the pattern of trade between the PRC,
Taiwan and the Union; if that change stemmed from a
practice, process or work for which there was insufficient
1.4. Investigation
due cause or economic justification other than the
imposition of the duty; if there was evidence of injury
(7) The
Commission
officially
advised
the
authorities
of
the
or that the remedial effects of the duty were being
PRC and Taiwan, the exporting producers in those coun
undermined in terms of the prices and/or quantities of
tries, the importers in the Union known to be concerned
the product under investigation; and whether there was
and the Union industry of the initiation of the investi
evidence of dumping in relation to the normal values
gation.
previously established for the product concerned in the
original investigation, if necessary in accordance with the
(8) Exemption
forms
were
sent
to
the
producers/exporters
in
provisions of Article 2 of the basic Regulation.
Taiwan known to the Commission and through the
Authorities of Taiwan to the European Union. Question
naires were sent to the producers/exporters in the PRC
2.2. Product concerned and product under investi
known to the Commission and through the Authorities
gation
of the PRC to the European Union. Questionnaires were
(14) The
product
concerned
by
the
possible
circumvention
is
also sent to the known importers in the Union.
silicon metal, originating in the PRC, currently falling
within CN code 2804 69 00 (silicon content less than
(9) Interested
parties
were
given
the
opportunity
to
make
99,99 % by weight) (‘the product concerned’). Purely by
their views known in writing and to request a hearing
reason of the current classification set out in the
within the time limit set in the initiating Regulation. All
Combined Nomenclature, it should be read ‘silicon’.
parties were informed that non-cooperation might lead
Silicon with a higher purity, that is containing by
to the application of Article 18 of the basic Regulation
weight not less than 99,99 % of silicon, used mostly in
and to findings being based on the facts available.
the electronic semi-conductor industry, falls under a
different CN code and is not covered by this proceeding.
(10) Three
Taiwanese
producers/exporters,
belonging
to
one
group, and three unrelated importers in the Union made
(15) The product under investigation is the same as that
themselves known and submitted replies to the
defined above, but consigned from Taiwan, whether
exemption forms and to the questionnaires, respectively.
declared as originating in Taiwan or not, currently
falling within the same CN code as the product
concerned (‘the product under investigation’).
(11) The
Commission
carried
out
verification
visits
at
the
premises of the three following related companies, part
of the Group referred to in recital 10:
(16) The
investigation
showed
that
silicon,
as
defined
above,
exported from the PRC to the Union and silicon
consigned from Taiwan to the Union has the same
— Asia Metallurgical Co. Ltd (Taiwan),
basic physical and technical characteristics and has the
same use, and is therefore to be considered as a like
— Latitude Co. Ltd (Taiwan),
product within the meaning of Article 1(4) of the basic
Regulation.
— YLB Co. Ltd (Taiwan).
2.3. Findings
1.5. Reporting period and investigation period
2.3.1. Level of cooperation
(12) The investigation period covered the period from
(17) As
stated
in
recital
10,
only
three
Taiwanese
companies
1 January 2008 to 30 June 2012 (‘the IP’). Data were
belonging to the same group of companies submitted
collected for the IP to investigate, inter alia, the alleged
exemption form replies. A comparison of their exports
change in the pattern of trade. More detailed data were
into the Union to the Eurostat import data, showed that
collected for the reporting period from 1 July 2011 to
the cooperating companies were representing 65 % of the
Taiwanese exports of the product under investigation to
( 1 ) OJ L 176, 6.7.2012, p. 50.
the Union in the RP.

---

EN
5.4.2013 Official
Journal
of
the
European
Union L
95/3
(18) There was no cooperation from the exporting producers of silicon in the PRC. Therefore, findings in
respect of imports of silicon from the PRC into the Union and exports from the PRC into Taiwan
had to be made on the basis of data from Eurostat import data, Taiwanese import statistics and data
gathered from the cooperating Taiwanese companies.
2.3.2. Change in the pattern of trade
Imports of silicon into the Union
(19) Table 1 shows imports of silicon from the PRC and Taiwan into the Union between 2004 and the
end of the RP.
Table 1
(in MT)
2004 2005 2006 2007 2008 2009 2010 2011 RP
PRC 1
268 27
635 1
435 9
671 5
353 6
669 11
448 13
312 5
488
Taiwan
0 2,7 0,2 340 3
381 5
199 11
042 5
367 2
707
Source: Eurostat.
(20) The data from Eurostat clearly show that there were no imports from Taiwan into the Union at all in
2004. They went up with more than 300 % in 2008 and remained very high. The imports doubled
again in 2010, following the imposition of new measures against the PRC.
(21) In 2011, the imports into the Union from Taiwan decreased. This development may be attributable
to an anti-fraud investigation which was launched by OLAF around that time. The Commission was
informed that the Taiwanese issuing authority, the Bureau of Foreign Trade of Taiwan (BOFT)
withdrew the certificates of origin of silicon from all Taiwanese producers in 2011. That decision
to withdraw the certificates was appealed by the three Taiwanese exporters referred to in recitals 10
and 11 above (‘Group of exporters’). The board of appeal quashed the decision of the BOFT, and the
certificates in question were re-issued to those three Taiwanese producers/exporters, but not to the
other Taiwanese producers.
(22) In this context, the Commission also observes that the presentation of a non-preferential certificate of
origin is not required for the customs formalities at importation into the Union and that in the event
of serious doubt, such a certificate cannot serve as proof of the non-preferential origin of the declared
product (Article 26 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the
Community Customs Code ( 1 )).
(23) The imports of silicon from the PRC into the Union have been increasing since 2008. In particular, it
is observed that these imports are still increasing after the imposition of the measures in 2010. This
development can be explained by the fact that the anti-dumping duty went down significantly in
2010, namely from 49 % to 19 %.
Exports of silicon from the PRC to Taiwan
Table 2
(in MT)
2003 2004 2005 2006 2007 2008 2009 2010 2011 RP
16 530 16
600 7
101 10
514 3
675 15
893 16
007 17
912 9
177 10
507
Source: Chinese export statistics.
(24) Table 2 shows imports from the PRC into Taiwan. The data from the Chinese exports database show
that imports were at their highest in 2010 following the imposition of the original measures. The
decrease in 2011 can be explained by the anti-fraud investigation as explained in recital 21.
( 1 ) OJ L 302, 19.10.1992, p. 1.

---

L 95/4
EN
Official Journal of the European Union
5.4.2013
Conclusion on the change in the pattern of trade
showed that there was not always time to process all
batches of silicon purchased in the PRC with the
(25) It is considered that there is a change in the pattern of
method that they claimed to apply. Furthermore, the
trade since there were no imports of silicon from Taiwan
information available, in particular from producers in
into the Union at all in 2004. They really started as from
the Union, shows that in order to remove the inner
2007 and became very important in 2008. They remain
impurities of the silicon lump, either a crushing
at a very high level up to the RP, with a reduction in
followed by a chemical treatment or a melting process
2011 because of the possible reason which is explained
is necessary. Neither of those processes has been used by
in recital 21.
the Group of exporters.
2.3.3. Nature of the circumvention practice and insufficient
(32) It
is also noteworthy that in 2010, acting upon a
due cause or economic justification
reference for a preliminary ruling under Article 234 of
the Treaty establishing the European Community (now
(26) Article
13(1)
of
the
basic
Regulation
requires
that
the
Article 267 of the Treaty on the Functioning of the
change in the pattern of trade stems from a practice,
European Union) from Finanzgericht Düsseldorf
process or work for which there is insufficient due
(Hoesch Metals and Alloys GmbH v Hauptzollamt
cause or economic justification other than the imposition
Aachen), in a matter relating to the antidumping
of the duty. The practice, process or work includes, inter
measures against silicon from the PRC, the Court of
alia, the consignment of the product subject to measures
Justice ruled: ‘The separation, crushing and purification
via third countries. The Commission takes the view that
of silicon metal blocks and the subsequent sieving,
in the present case, the change in the pattern of trade
sorting and packaging of the silicon grains resulting
stems from the consignment of the product subject to
from the crushing, as carried out in the main
measures via a third country.
proceedings, do not constitute origin-conferring
processing or working for the purposes of Article 24
(27) The
Commission first
of all notes that there
is no
of the Council Regulation (EEC) No 2913/92 of
production of silicon in Taiwan. None of the producers/
12 October 1992 establishing the Community Customs
exporters have denied the fact that they import the
Code.’ ( 1 ) The purification process as carried out by the
silicon they export from the PRC.
Group of exporters is considered to be similar to the one
as described in that ruling.
(28) Secondly,
with
the
exception
of
the
Group
of
exporters,
the producers/exporters have not provided any economic
(33) The investigation also revealed that the purification
process amounts to less than 5 % of the total cost of
justification other than the imposition of the duty for
the Group of exporters. It was furthermore confirmed
their activity.
that the price of the silicon sold into the Union by the
Group and the price of the silicon purchased in the PRC
(29) The
Group
of
exporters
alleged
that
they
import
silicon
by the Group during the IP, never showed a difference of
lumps of very low quality in bags from the PRC. They
more than 11 %.
claim that the silicon lumps are then tumbled, crushed,
sieved and packed in bags again before being exported to
(34) In
the
light
of
those
considerations,
it
is
concluded
that
the Union market. After that operation, they alleged that
also for the Group of exporters the import from the PRC
the product is of a higher quality.
and the subsequent export to the Union of the Silicon is
to be considered as a transhipment and thus circum
vention in the sense of Article 13 of the Basic Regu
(30) They
claim that this operation constitutes a unique
purification method, developed in cooperation with the
lation.
University of Taipei, which allegedly eliminates 80 % of
the impurities in the silicon metal lumps imported from
(35) It
is
therefore
concluded
that
the
investigation
did
not
the PRC. During the onsite verification, it was however
bring to light any other due cause or economic justifi
observed that their process was a simple tumbling,
cation for the transhipment than the avoidance of the
sieving and crushing operation which removes some
measures in force on the product concerned, namely the
surface impurities such as oxidation and dust, but
19 % anti-dumping duty on the PRC. No elements were
which did not remove in particular the main impurities
found, other than the duty, which could be considered as
inside the silicon lumps. The processed product thus kept
a compensation for the costs of transhipment, in
the same physical and technical basic characteristics as
particular regarding transport and reloading, of silicon
the product concerned.
originating in the PRC via Taiwan.
(31) The evidence collected and verified during the investi
2.3.4. Evidence of dumping
gation, in particular the purchase invoices, the sales
invoices and the accompanying documents such as the
(36) In
accordance
with
Article
13(1)
of
the
basic
Regulation
bill of lading, and other customs documents, showed that
it was examined whether there was evidence of dumping
the products purchased and sold for export by the Group
in relation to the normal value established in the original
of exporters were in most cases of the same specifi
investigation.
cations. The records relating to the stocks in the ware
houses of the Group, located close to harbours, also
( 1 ) See Case C-373/08, 2010 ECR-I 951, at paragraphs 55 and 80.

---

EN
5.4.2013 Official
Journal
of
the
European
Union L
95/5
(37) In the original Regulation, the normal value was estab
(43) The
measures
established
in
Article
1(2)
of
Implementing
lished on the basis of prices in Brazil, which in that
Regulation (EU) No 467/2010 for ‘all other companies’
investigation was found to be an appropriate market
from the PRC, should therefore be extended to imports
economy analogue country for the PRC. In line with
from Taiwan. The level of duty should be set at 19 %
Article 13(1) of the basic Regulation it was considered
applicable to the net, free-at-Union-frontier price, before
appropriate to use the normal value as previously estab
duty.
lished in the original investigation. Two PCNs from the
previous investigation matched with the two PCNs of the
exporting companies. Export prices were established in
accordance with Article 2(8) of the basic Regulation,
namely the prices actually paid or payable for export
(44) In accordance with Articles 13(3) and 14(5) of the basic
of the product under investigation into the Union.
Regulation, which provide that any extended measure

should apply to imports which entered the Union
under registration imposed by the initiating Regulation,
duties should be collected on those registered imports of
silicon consigned from Taiwan.
(38) For
the
purpose
of
a
fair
comparison
between
the
normal
value and the export price, due allowance in the form of
adjustments was made for differences which affect prices
and price comparability, in accordance with Article 2(10)
of the basic Regulation. Accordingly, adjustments were
4. REQUESTS FOR EXEMPTION
made to the export price for transport and insurance in
order to bring prices at the same level of trade. In
(45) As
explained
in
recital
10,
three
companies
located
in
accordance with Article 2(11) and 2(12) of the basic
Taiwan, belonging to one group, submitted exemption
Regulation, dumping was calculated by comparing the
form responses requesting an exemption from the
adjusted weighted average normal value as established
possible extended measures in accordance with
in the original Regulation and the corresponding
Article 13(4) of the basic Regulation.
weighted average export prices of the Taiwanese import
during this investigation’s RP, expressed as a percentage
of the CIF price at the Union frontier duty unpaid.
(46) In view of the findings with regard to the change in the
pattern of trade, the lack of real production in Taiwan
and the export under the same customs code as set out
(39) The
comparison
of
the
weighted
average
normal
value
in recitals 19 to 29, the exemptions as requested by
and the weighted average export price as established in
those three companies could not be granted, in
the investigation showed the existence of dumping.
accordance with Article 13(4) of the basic Regulation.
2.3.5. Undermining the remedial effects of the anti-dumping
(47) Without
prejudice
to
Article
11(3)
of
the
basic
Regu
duty in terms of prices and quantities
lation, the potential exporters/producers in Taiwan
(40) The
comparison
of
the
injury
elimination
level
as
estab
which did not come forward in this proceeding and
lished in the original Regulation and the weighted
did not export the product under investigation during
average export price showed the existence of under
the IP, which intend to lodge a request for an
cutting and underselling. It was therefore concluded
exemption from the extended anti-dumping duty
that the remedial effects of the measures in force are
pursuant to Articles 11(4) and 13(4) of the basic Regu
being undermined in terms of prices and quantities.
lation will be required to complete an exemption form in
order to enable the Commission to assess such a request.
Such exemption may be granted after the assessment of
the market situation, production capacity and capacity
utilisation, procurement and sales and the likelihood of
3. MEASURES
continuation of practices for which there is insufficient
(41) Given
the
above,
it
was
concluded
that
the
original
due cause or economic justification and the evidence of
measure, namely the definitive anti-dumping duty
dumping. The Commission would normally also carry
imposed on imports of silicon originating in the PRC,
out an on-spot verification visit. Provided that the
was circumvented by transhipment via Taiwan within the
conditions set in Articles 11(4) and 13(4) of the basic
meaning of Article 13(1) of the basic Regulation.
Regulation are met, an exemption may be warranted.
(42) In
accordance
with
the
first
sentence
of
Article
13(1)
of
(48) Where
an
exemption
is
warranted,
the
Commission
may,
the basic Regulation, the measures in force on imports of
after consulting the Advisory Committee, authorise by
the product concerned are to be extended to imports of
decision, the exemption of imports from companies
the product under investigation, i.e. the same product as
which do not circumvent the anti-dumping measures
the product concerned but consigned from Taiwan,
imposed by Implementing Regulation (EU) No
whether declared as originating in Taiwan or not.
467/2010, from the duty extended by this Regulation.

---

L 95/6
EN
Official Journal of the European Union
5.4.2013
(49) The
request
should
be
addressed
to
the
Commission,
HAS ADOPTED THIS REGULATION:
with all relevant information, in particular any modifi
cation in the company’s activities linked to the
production and sales.
Article 1
1. The
definitive
anti-dumping
duty
applicable
to
‘all
other
5. DISCLOSURE
companies’ imposed by Article 1(2) of Implementing Regulation
(EU) No 467/2010 on imports of silicon currently falling within
(50) All interested parties were informed of the essential facts
CN code 2804 69 00 and originating in the People’s Republic
and considerations leading to the above conclusions and
of China, is hereby extended to imports of silicon consigned
were invited to comment. They were also granted a
from Taiwan, whether declared as originating in Taiwan or not,
period to submit comments subsequent to that
currently falling within CN code ex 2804 69 00 (TARIC code
disclosure.
2804 69 00 20).
6. COMMENTS
2. The
duty
extended
by
paragraph
1
of
this
Article
shall
be
collected on imports consigned from Taiwan, whether declared
(51) Following
disclosure,
comments
were
received
from
the
as originating in Taiwan or not, registered in accordance with
Group of exporters and from two importers.
Article 2 of Regulation (EU) No 596/2012 and Articles 13(3)
and 14(5) of Regulation (EC) No 1225/2009.
(52) The
main
argument
concerned
the
claim
that
the
purifi
cation carried out by the Group of exporters was origin-
conferring in the sense of Article 24 of Regulation (EEC)
3. Unless
otherwise
specified,
the
provisions
in
force
No 2913/92. The importers presented a report
concerning customs duties shall apply.
concerning sample tests performed by the University of
Taipei and an analysis report by an independent expert.
The report concerning sample tests shows a percentage
Article 2
of slag reduction of 90,8 % after the purification process.
The analysis by the independent expert claims that after
1. Requests
for
exemption
from
the
duty
extended
by
purification only, the silicon can be used for certain
Article 1 shall be made in writing in one of the official
melting purposes.
languages of the European Union and must be signed by a
person authorised to represent the entity requesting the
exemption. The request must be sent to the following address:
(53) It
is
noted
that
those
two
studies
are
contradicted
by
the
findings of the Commission during the onsite verifi
cation, as described in recital 31. In particular, it is
European Commission
recalled that according to the invoices, the products
Directorate-General for Trade
purchased and sold for export by the Group of
Directorate H
exporters were in most cases of the same specifications.
Office: N-105 08/20
1049 Bruxelles/Brussel
BELGIQUE/BELGI
(54) If the claims made by the importers were true, this
Fax +32 22956505
should also result in a much higher difference between
the price at which the silicon is imported from PRC and
the price at which the silicon is exported to the Union.
2. In
accordance
with
Article
13(4)
of
Regulation
(EC)
No
1225/2009, the Commission, after consulting the Advisory
Committee, may authorise, by decision, the exemption of
(55) Based on the onsite inspection of the tools used for the
imports from companies which do not circumvent the anti-
alleged purification of the silicon, the Commission also
dumping measures imposed by Implementing Regulation (EU)
concludes that the tools are not such as to allow for any
No 467/2010, from the duty extended by Article 1.
of the two methods of purification described in
recital 31.
Article 3
(56) Finally, the analysis report by the independent expert also
Customs authorities are hereby directed to discontinue the regis
ignores the fact known to the Commission that the users
tration of imports, established in accordance with Article 2 of
process their silicon before use.
Regulation (EU) No 596/2012.
(57) For
those reasons, the comments submitted by the
Article 4
parties have not been such as to alter the conclusions
provisionally reached by the Commission before
This Regulation shall enter into force on the day following that
disclosure,
of its publication in the Official Journal of the European Union.

---

EN
5.4.2013 Official
Journal
of
the
European
Union L
95/7
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 3 April 2013.
For the Council
The President
E. GILMORE

---

Document Outline

• �

---