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"B COUNCIL REGULATION (EC) No 2413/95
of 6 October 1995
imposing a definitive anti-dumping duty on imports of ferro-silico-manganese originating in Russia,
Ukraine, Brazil and South Africa
(OJ L 248, 14.10.1995, p. 1)
Amended by:
Official Journal
No page date
"M1 Council Regulation (EC) No 92/96 of 22 January 1996 L 18 1 24.1.1996
"M2 Council Regulation (EC) No 495/98 of 23 February 1998 L 62 1 3.3.1998
NB: This consolidated version contains references to the European unit of account and/or the ecu, which from 1 January 1999 should be
understood as references to the euro — Council Regulation (EEC) No 3308/80 (OJ L 345, 20.12.1980, p. 1) and Council Regulation(EC) No 1103/97 (OJ L 162, 19.6.1997, p. 1).1995R2413 — EN — 04.03.1998 — 002.001 — 1
COUNCIL REGULATION (EC) No 2413/95
of 6 October 1995
imposing a definitive anti-dumping duty on imports of ferro-silico-man-
ganese originating in Russia, Ukraine, Brazil and South Africa
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,Having regard to Council Regulation (EC) No 3283/94 of 22 December 1994
on protection against dumped imports from countries not members of the
European Community (
1), and in particular Article 23 thereof, which laid
down that Council Regulation (EEC) No 2423/88 of 11 July 1988 onprotection against dumped or subsidized imports from countries not membersof the European Economic Community (
2) shall continue to apply to
proceedings in relation to which an investigation pending on 1 September
1994 had not been concluded by the date of entry into force of Regulation(EC) No 3283/94,
Having regard to Regulation (EEC) No 2423/88 (hereinafter referred to as the
‘basic Regulation’), and in particular Article 12 thereof,
Having regard to the proposal submitted by the Commission after
consultations with the Advisory Committee,
Whereas:
A. PROVISIONAL MEASURES
(1) By Regulation (EC) No 3119/94 (
3) (hereinafter referred to as the
‘provisional duty Regulation’), the Commission imposed provisional
anti-dumping duties on imports into the Community of ferro-silico-manganese (FeSiMn) falling within CN code 7202 30 00 andoriginating in Russia, Ukraine, Brazil and South Africa.
By Regulation (EC) No 866/95 (
4), the Council extended the validity of
these duties for a period of two months.
B. SUBSEQUENT PROCEDURE
(2) Following the imposition of the provisional anti-dumping duties,
— the Comité de Liaison des Industries de Ferro-Alliages (‘Euroal-
liages’; complainant),
— two South African producers, Highveld Steel and Vanadium
Corporation Limited and Samancor Limited,
— the Ukrainian authorities and two Ukrainian producers, Nikopol
Ferro Alloy Plant and Zaporozhye Ferro Alloy Plant,
— two Brazilian producers, Companhia Paulista de Ferro Ligas and
Sibra Eletrosiderurgica Brasileira SA,
— the British Iron and Steel Producers Association (Bispa),
— an unrelated importer in Luxembourg, SA des Minerais,
— an importer in the United Kingdom, Victoria Alloys (UK) Limited,made their views known in writing. Parties who so requested were
granted a hearing by the Commission.!B
(1) OJ No L 349, 31. 12. 1994, p 1. Regulation as last amended by Regulation (EC)
No 1251/95 (OJ No L 122, 2. 6. 1995, p. 1).
(2) OJ No L 209, 2. 8. 1988, p. 1. Regulation as last amended by Regulation (EC)
No 522/94 (OJ No L 66, 10. 3. 1994, p. 10).
(3) OJ No L 330, 21. 12. 1994, p. 15.
(4) OJ No L 89, 21. 4. 1995, p. 1.1995R2413 — EN — 04.03.1998 — 002.001 — 2
(3) The Commission continued to seek and verify all information it
deemed necessary for its definitive findings.
(4) Upon request, the parties were informed of the essential facts and
considerations on the basis of which it was intended to recommend theimposition of definitive anti-dumping duties and the collection of
amounts secured by way of a provisional duty. The parties were also
granted a reasonable period within which to make representationssubsequent to the disclosures.
(5) The parties’ comments were considered, and the Commission altered
its conclusions where deemed appropriate.
C. PRODUCT UNDER CONSIDERATION, LIKE PRODUCT
(6) As no comments have been presented by any party regarding the
product under consideration and the like product after the imposition
of provisional anti-dumping measures, the findings set out in recitals(9) and (10) of the provisional duty Regulation are hereby confirmed.
D. DUMPING
1. NORMAL V ALUE
Russia, Ukraine
(7) In the absence of any new arguments, the findings laid down in recitals
(12) and (13) of the provisional duty Regulation are confirmed.
Brazil
(8) The Commission had, for the purpose of the provisional findings,
calculated one normal value and, consequently, one dumping margin
for the two Brazilian producers which cooperated in the proceeding
because they were found to be related, i.e. one was the subsidiary of theother.
(9) IThe Brazilian producers requested the determination of individual
normal values and accordingly individual dumping margins. They
argued that the approach adopted by the Commission did not conform
with Article 13 (2) of the basic Regulation which stipulates thatanti-dumping duties should be imposed on an individual basis for each
cooperating exporter. It was further argued that this treatment is also
contrary to Article 2 (3) (c) of that Regulation, according to whichnormal value should be based on prices or costs of another exporteronly if an exporter does not produce nor sell the product in the country
of origin. The said producers also claimed that they operate separately
in the market place and pointed out that they keep separate records andaccounting systems. Finally, they argued that the determination of onlyone dumping margin would unduly penalize one of them because its
dumping margin is significantly lower than that of the other. On these
grounds, the Brazilian exporters have requested the determination ofindividual dumping margins.
(10) It is the general practice of the Community institutions to calculate one
dumping margin for producers where one is a subsidiary of, and
therefore subject to control by, another on the basis of an average of thedata submitted by both producers. Calculating individual dumpingmargins would create the likelihood of circumvention of anti-dumping
measures (thus rendering them ineffective) by enabling the related
producers to channel their exports to the Community through theaffiliate with the lowest dumping margin. Such an approach is contraryneither to Article 2 (3) (c) of the basic Regulation, since the exporting
entity produces and sells on the Brazilian domestic market, nor to
Article 13 (2) which requires the name of the supplier to be mentionedin the Regulation imposing duties only if this is practical. In the case in
question, since only two Brazilian producers cooperated and one was a
subsidiary of the other, one dumping margin was established whichwas also considered appropriate for non-cooperating producers.!B1995R2413 — EN — 04.03.1998 — 002.001 — 3
(11) In conclusion, the methodology used for calculating normal value in
respect of the two cooperating Brazilian producers, as set out inrecitals (14) to (18) of the provisional duty Regulation, is confirmed.
South Africa
(12) The Commission determined normal value on the basis of sales prices
on the South African domestic market charged in the ordinary courseof trade and in respect of representative quantities in accordance withArticle 2 (3) (a) of the basic Regulation.
(13) One South African producer alleged that certain sales on the South
African market were made to customers with which there was,indirectly through one of its shareholders and an affiliate of the latter, ashareholder relationship. This producer claimed that these customers
should therefore be considered as being related, to the effect that the
sales should be disregarded for the determination of normal value. Thisexporter claimed that the remaining domestic sales in the investigationperiod constitute less than 5 % of the volume of exports to the
European Union. In consequence, this exporter submitted that the
Commission should construct normal value on the basis of costs ofmanufacture, SG&A expenses and a reasonable amount for profit.
(14) This submission has to be rejected. The Commission found that the
sales prices and costs involved for transactions to the customers in
question were in line with those for transactions to clients which,according to this exporter, were entirely unrelated and did not find anyindication which would suggest that the relationship had any impact on
the prices of such sales transactions to the extent that they should be
considered as not being in the ordinary course of trade. Furthermore,the South African producer did not provide any information to support
this allegation.
Therefore, the findings set out in recitals (19) to (21) of the provisional
duty Regulation are confirmed.
2. EXPORT PRICES
Russia
(15) In the absence of any new arguments, the findings laid down in recital
(22) of the provisional duty Regulation are confirmed.
Ukraine
(16) For the purpose of its preliminary determination, the Commission
determined export prices for FeSiMn originating in Ukraine partly onthe basis of verified prices paid or payable by two unrelated importerscooperating in the investigation and partly on data obtained from
Eurostat. Eurostat was considered the best evidence available in
accordance with Article 7 (7) (b) of the basic Regulation for theremaining export sales not accounted for by the two importers in
question.
(17) One of the two Ukrainian producers cooperating claimed that, in the
framework of the preliminary determination, it had been deprived bythe Commission of its basic legal rights, since export prices (andadjustments to the export prices, see recital (24) below) were partially
based on confidential information, namely data obtained from the two
unrelated importers cooperating in the proceeding which were notmade available to it for verification purposes.
(18) In its investigation, the Commission found, as set out in recital (23) of
the provisional duty Regulation, that the information on export sales
submitted by the other cooperating Ukrainian producer was unusable;in particular, because it was not possible, from the informationsubmitted in the questionnaire, to establish whether or not the export
sales reported were destined for the Community. Moreover, the
Ukrainian producer concerned, though submitting data which indicatedthat the products were destined for the Community, stated that it could
not guarantee that the exported quantities were actually imported into
the European Union. Added to this, the total quantity of exports to theCommunity, as reported in the responses to the questionnaires of the!B1995R2413 — EN — 04.03.1998 — 002.001 — 4
two Ukrainian producers in question, amounted to more than three
times the tonnages which were reported in Eurostat as being ofUkrainian origin. For these reasons, the data submitted by theUkrainian exporters were deemed misleading and have been
disregarded for the definitive determination of the export prices in
accordance with Article 7 (7) (b) of the basic Regulation.
(19) Export prices were definitively determined on the basis of data
obtained from Eurostat. The Eurostat data were considered moreappropriate for determining the export prices for FeSiMn originating inUkraine because they covered all imports into the Community during
the investigation period. This was not the case for the information
obtained from the two cooperating importers which represented 53 %of such imports. Nevertheless, the prices reported by these importers,and verified by the Commission, generally corresponded with the
prices obtained from Eurostat. Furthermore, it should be noted that,
with regard to imports from non-market economies, such as Ukraine,the Community institutions normally establish one dumping marginfor all exports to the Community and do not calculate a specific
margin for individual exporters. Therefore, disregarding the price
information of the two Ukrainian exporters does not result in adisadvantage for them, given the fact that their export transaction
prices are encompassed in the Eurostat data. In addition, the Eurostat
data are publicly available enabling the Ukrainian exporter concernedto defend itself by verifying the correctness of the Communityinstitutions’ findings.
Brazil
(20) In the absence of any new arguments, the findings laid down in recital
(25) of the provisional duty Regulation are confirmed.
South Africa
(21) One South African producer claimed certain amendments to costs and
profit calculated by the Commission in the context of the recon-struction of export prices pursuant to Article 2 (8) (b) of the basicRegulation. This claim, which was duly substantiated, has been
accepted, and the appropriate amendments have been made.
Comparison
Russia
(22) The amendments to adjustments for comparison purposes concerning
Brazil outlined in recitals (27) to (31) below were also made for the
determination of normal value for Russia, since Brazil was chosen as
reference country.
In the absence of any other new arguments, the findings laid down in
recitals (27) and (29) of the provisional duty Regulation are herebyconfirmed.
Ukraine
(23) In its preliminary determination, the Commission found that the
information submitted by the two cooperating Ukrainian producerswith regard to claims for adjustments for differences in physicalcharacteristics and selling expenses were either not supported by
tangible evidence (claims for adjustments for higher phosphorous
content and crushing and screening) or did not correspond to theverified information submitted by the two unrelated importers
cooperating in the investigation (credit costs and commissions). The
Commission considered, therefore, that the information submitted bythe Ukrainian producers was misleading and based its findings on thedata received from the cooperating importers which were verified and
considered to be the best evidence available in accordance with Article
7 (7) (b) of the basic Regulation.
(24) One of the two cooperating Ukrainian producers claimed that, in the
framework of the preliminary determination, it had been deprived by
the Commission of its basic legal rights, since the determination of!B1995R2413 — EN — 04.03.1998 — 002.001 — 5
adjustments to the export prices was based on confidential
information, namely data obtained from the two unrelated importerscooperating in the proceeding which were not made available to it forverification purposes.
(25) It should be pointed out that, since no new evidence was submitted
following the imposition of provisional duties, the adjustments for
comparison purposes, as requested by the producer concerned,
provisionally calculated and based on confidential information, havebeen maintained for the definitive determination. It was considered
reasonable to base such adjustments on verified information obtained
from another source rather than eject outright the claims from theexporters concerned on the grounds that they were not properlysubstantiated. The allegation that the exporter in question has been
deprived of its basic legal rights is therefore unfounded.
(26) Those amendments for adjustments made for Brazil, for the reasons
given under recitals (27) to (31) below, were also applied for Ukraine.
Brazil
(27) The Commission had, for the purpose of the provisional findings,
established normal value on a monthly basis. In months where theweighted average domestic prices did not permit the recovery of allcosts in the ordinary course of trade, normal value was based on a
constructed value in conformity with Article 2 (3) (b) of the basic
Regulation.
(28) After disclosure of the provisional findings, the two Brazilian
producers claimed, on the basis of supporting documentation, adjust-ments to the constructed normal value for certain direct sellingexpenses and for direct credit costs.
(29) This claim has been accepted in part. The adjustments requested for
certain direct selling expenses, in accordance with the provisions of
Article 2 (9) and (10) of the basic Regulation have been incorporated
in the definitive calculations leading to a decrease in the constructednormal values by 2,2 %.
(30) However, the claim concerning credit expenses has to be rejected. The
producers concerned have, for the purpose of constructing normal
value, not quantified such expenses nor isolated them from the total
financing costs incurred. In the light of this, the Commission allocatedtotal financing costs over domestic and export sales on the basis oftotal marketable tonnage produced. This methodology is therefore
confirmed for the definitive determination.
(31) For the purpose of definitive findings, normal value was established on
the basis of the methods used in the provisional dumping deter-
mination, after taking into account the abovementioned adjustments.
South Africa
(32) One South African producer claimed, on the basis of supporting
evidence, a reassessment of the selling costs incurred in theCommunity. This claim has been accepted and appropriate adjustments
for comparison purposes have been made.
Dumping margins
(33) In the light of the conclusions set out above in respect of the
determination of normal value and export price, and the comparisonbetween the two, the definitive examination of the facts showed theexistence of dumping in respect of imports of the product concerned
originating in Russia, Ukraine, Brazil and South Africa.
(34) The weighted average dumping margins for the countries and
companies involved expressed as a percentage of the cif at Community
frontier prices, customs duty unpaid, are the following:
— Russia: 54,2 %,
— Ukraine: 43,9 %,
— Brazil: 36,1 %,!B1995R2413 — EN — 04.03.1998 — 002.001 — 6
— South Africa:
— Highveld Steel and Vanadium Corporation Limited: 45,3 %,
— Samancor Limited: 48,3 %.
(35) With regard to the dumping margin for producers in Brazil and South
Africa which did not cooperate in this proceeding, the findings set outin recital (32) of the provisional duty Regulation are, in absence of any
new arguments, hereby confirmed.
E.INJURY
1. CUMULATION OF THE DUMPED IMPORTS
(36) As regards Georgia, the findings set out in recital (34) of the
provisional duty Regulation in respect of de minimis import volumes
are, in the absence of any new arguments, hereby confirmed.
(37) Two South African producers and one association of the user industry
questioned the Commission’ s decision to cumulate imports from SouthAfrica with imports from Ukraine, Russia and Brazil. It was claimedthat while import volumes and market shares increased significantly
for Ukraine, Russia and Brazil in the period 1989 to the investigation
period, there was a decrease for South Africa. Furthermore, it waspointed out that in a past case the Commission had decided not tocumulate import volumes which showed diametrically opposed
progressions (Tungsten Carbide case, OJ No L 83, 30. 3. 1990, p.
36). It was also claimed that the trends of the import volumes fromeach of the exporting countries concerned should be similar before
cumulating because, it was alleged, the Commission in previous cases
had considered increases in import volumes and therefore importtrends as one of the conditions for cumulation. Moreover, it wasclaimed that the export prices of the South African producers were
higher than those of Ukraine, Russia and Brazil.
Finally, it was argued that the quality of the South African product was
such that it did not compete with those from the other countries
concerned, in particular, because South Africa was the only country outof the countries concerned that was granted ISO 9002 accreditation.
(38) After consideration of the abovementioned arguments and claims
concerning import volumes, market shares, export prices and quality of
the imported product, it is confirmed that imports from South Africa
should be cumulated with those of the other exporting countriesconcerned for the following reasons:
— although the volume of imports from South Africa decreased from
1989 to the investigation period by 5,4 %, imports remained
considerable. More specifically import volumes were, apart from
1990 (47 227 tonnes), always above 50 000 tonnes and marketshares ranged from 12,7 % in 1989 to 9,9 % in the investigationperiod. Contrary to what was established in the Tungsten Carbide
case, import trends from South Africa did not show diametrically
opposed progressions. In fact, South African import volumeswere, over the period 1989 to the investigation period, relatively
stable, rather than declining significantly,
— price trends were similar, i.e. prices for all exporting countries
under investigation, including South Africa, decreased signifi-
cantly in the period 1989 to the investigation period, and
— it was found that the products imported from the countries under
investigation competed with each other and with those of theCommunity industry. The ‘ISO 9002’ accreditation does not mean
that a producer so accredited produces FeSiMn different from
those of other producers. It indicates that a producer has adoptedan internationally recognized quality control system which offerscertain guarantees for purchasers. Furthermore, it has been
established that several Community producers have ‘ISO 9002’
accreditation and, in any event, producers without this accredi-!B1995R2413 — EN — 04.03.1998 — 002.001 — 7
tation are, in general, able to produce FeSiMn which is of identical
or, at least, similar quality to those with accreditation.
(39) One South African producer further argued that for the purpose of
examining trends the Commission should have considered not only the
period 1989 to the investigation period but also 1988 because this
would demonstrate more clearly a decreasing trend in import volumesfrom South Africa. Furthermore, this exporter argued that, given thatthe notice of initiation of the proceeding was published on 4 August
1993, the Commission should have chosen an investigation period
closer to this opening date rather than the period 1 April 1992 to 31March 1993. Again, the exporter alleged that this would have shownmore clearly a decreasing trend of imports of the product originating in
South Africa.
(40) It is common practice for the Community institutions to examine
trends of import volumes, market shares and prices etc. over a periodof several years, normally four years including the investigation period.
This practice was followed in the present case, a period covering the
investigation period (1 April 1992 to 31 March 1993) and the fourcalendar years 1989 to 1992 being chosen. This period was considered
appropriate for giving an objective view of the development of the
market situation for all parties concerned. The inclusion of informationfor the year 1988 would not result in any different conclusions aboutthe trends of import volumes, etc., for cumulation purposes.
(41) With regard to the selection of the investigation period, it should be
noted that the Commission, in general, aims at setting the investigationperiod close to the date of the initiation of the proceeding. However,other considerations sometimes have to be taken into account in order
to ensure that, for example, the submission, verification and evaluation
of data can be carried out promptly and efficiently, e.g.: byestablishing correspondence between the investigation period andcalendar years or financial quarters or semesters. However, if a party
concerned considers that the investigation period chosen by the
Commission is not appropriate, it has to submit its objections at theearliest opportunity, which, in this case, would have been after
reception of the questionnaire and not, as was the case here, only after
the disclosure of the provisional findings. In fact, the exporter inquestion responded to the questionnaire on the basis of theinvestigation period indicated, which corresponds to its financial year,
without raising any objection, nor were any objections to the
investigation period raised, during the on-spot verification of the datasubmitted.
2. MATERIAL INJUR Y
(42) Several exporters have alleged that the Community industry did not
suffer from material injury. They have pointed out that financial lossessuffered by the Community producers were the only identifiable
indicator of injury, whereas the Community production and sales of
FeSiMn increased, production capacity remained constant and capacityutilization increased. It was claimed, furthermore, that the decline inemployment was not an appropriate indicator of injury, because it
resulted in an increase in productivity.
(43) The Commission’ s findings with regard to production, sales, market
share and financial results make clear that the Community producers,in order to limit the damage being caused by the dumped imports,
pursued the strategy of reacting to the downward pressure on sales
prices caused by these imports by following the price trend in order tomaintain their market share. Although this aim was not completelyfulfilled (the market share fell from 1989 to the investigation period by
1,2 %), production and sales volume increased and capacity utilization
remained more or less stable. In consequence, however, theCommunity industry has incurred heavy financial losses which haveput its existence at risk. The erosion in the financial situation of the
Community industry constitutes a clear indicator of material injury.
(44) One exporter argued that the Community industry’ s profit rate in 1989
(16,9 % on turnover) is, compared to the financial results of ninemetal-related manufacturing US industries for the period 1987 to 1992
(allegedly ranging between 7,9 % profit and 8,5 % loss), so
extraordinarily high that it was likely to be based on unreliable!B1995R2413 — EN — 04.03.1998 — 002.001 — 8
financial reports from the Community producers. The losses incurred
by the Community industry in the years 1990 to the investigationperiod were also questioned by this exporter, as was the reliability ofthe cost allocation methods applied by the Community producers. Both
arguments were, however, not further substantiated.
(45) It is considered that the comparison between the financial results of a
specific industry (here: the FeSiMn industry) and a variety of differentindustries does not compare like with like and does not, in general,provide a basis for drawing a fair picture about the financial situation
of the European Union FeSiMn industry. Secondly, the investigation
has not given any reason to assume that the financial results, based onaudited accounts, were incorrect. It was, furthermore, established thatthe allocation methods applied by the Community producers were
appropriate.
(46) One exporter claimed that the loss in market share suffered by the
Community industry had only occurred for particular qualities, i.e.so-called medium carbon and low carbon FeSiMn, whereas the marketshare for standard FeSiMn, on which the Commission has based the
price comparisons both for provisional and definitive determinations,
had increased by 0,5 %.
(47) In this respect, it must be pointed out that the market share data
submitted in this context are incorrect because the market shares forthe respective product qualities are expressed as a percentage of the
total consumption on the Community market for all quality types taken
together and not separately on the consumption for the respectivequalities. The data submitted gives, therefore, an incorrect picture ofthe trend of market shares for the different qualities mentioned above.
(48) In conclusion, it is definitively determined that the Community
industry has suffered material injury, given its deteriorating financial
situation characterized by increasing losses over the years 1989 to the
investigation period.
F.CAUSATION
1. EFFECT OF THE DUMPED IMPORTS
(49) The Commission, at recital (57) of the provisional duty Regulation,
reached a preliminary determination that imports originating in Russia,Ukraine, Brazil and South Africa had, taken together, caused materialinjury to the Community industry.
2. OTHER FACTORS
Raw material prices and general demand from the steel industry
(50) One exporter claimed that the significant increase in manganese
supply over several years, demonstrated by publications of the UnitedStates Bureau of Mines, causing a fall in manganese ore prices by 5 to10 % per annum between 1989 and 1993, together with, in the same
period, the decrease in demand from the steel industry caused the price
decline on the world markets, and therefore also accounted for the fallin prices on the Community market for FeSiMn.
(51) In this respect, it is considered that decreasing prices for manganese
ore, which accounts only for 10 to 15 % of the total cost of
manufacture of FeSiMn, cannot explain the more substantial price
decreases for the end product over the period in question. Secondly, ithas been established that the total consumption of, and therefore thedemand for, FeSiMn in the Community had increased in the period
1989 to the investigation period by around 21 %.
Norway
(52) Producers from Brazil, South Africa and Ukraine as well as one
association of the user industry considered that the injury caused to theCommunity industry resulted from imports of ferro-silico-manganese
of Norwegian origin and not from imports from the exporting countries
concerned. More specifically, it was argued that the Communityindustry suffered its most significant decrease in profitability from!B1995R2413 — EN — 04.03.1998 — 002.001 — 9
1989 (profit: 16,9 %) to 1990 (loss: 14,9 %), a period where imports
from the exporting countries concerned increased by 8 000 tonnesonly. In the same period (1989-1990), it was claimed that Communityproducers’ prices on the Community market fell by 27 %, Norwegian
prices fell by 21 % but the prices of the product from the exporting
countries concerned declined by only 17 %. Furthermore, it waspointed out that in 1990 Norwegian prices on the market of oneMember State decreased by as much as 24 %.
(53) It should be noted in this context that with regard to imports of FeSiMn
from Norway, the market share decreased from 41,4 % in 1989 to30,8 % in the investigation period and that the average import prices on
the Community market for ferro-silico-manganese of Norwegian
origin (according to Eurostat) in the investigation period and thecalendar years 1989-1992 were always higher than the prices of theother exporting countries and the Community industry. This situation
was also reflected in 1989/90, when imports from Norway decreased
from 171 887 tonnes (market share: 41,4 %) to 139 928 tonnes(market share: 34,4 %). Although the average Norwegian prices(according to Eurostat) declined by 21 %, they were still around 17 %
(or more than ECU 80) higher than the weighted average prices of the
exporters under consideration and 6 % higher than the price of theCommunity producers.
(54) Under these circumstances, it is considered that imports from Norway
were unlikely to be responsible for the injury suffered by theCommunity producers. Therefore, these arguments and claims haveto be rejected.
Competitiveness of Community producers
(55) The two Brazilian producers which cooperated in the proceeding
claimed that the injury suffered by the Community industry was
caused by its lack of competitiveness. They argued that, even in 1990when, allegedly, Community prices were around 12 % above worldlevel, the Community producers reported the first financial losses. The
argument was acompanied by a price comparison for ferro-silico-
manganese between the European Union and the USA for the years1989 to 1992. They suggested, moreover, that the alleged inefficiencywould also be indicated by the Community producers’ low labour
productivity, defined as average output per employee, when compared
to non European Union ferro-silico-manganese producers, andsubmitted an estimate based on data in the complaint, on statistical
data in the USA and ‘interviews’.
(56) In response to this contention, it should be noted that the price
comparison between the European Union and the USA does not takeaccount of the result of the anti-dumping proceeding carried out by the
US authorities. This proceeding led to the conclusion that the US
market was also influenced by injuriously dumped imports fromseveral countries. It appears likely, therefore, that the market prices inthe USA were distorted by unfair practices.
(57) With regard to the Community industry’ s alleged low productivity, it is
pointed out that even if certain exporters enjoy competitive advantageswhich are not enjoyed by Community producers, leading to higher
production costs for the latter, this would not be a justification for
refraining from the adoption of remedial measures in cases whereinjury caused through the effects of dumping has been established.What is relevant in these circumstances is to ensure that any injury
caused by a lack of competitiveness has not been attributed to the
dumped imports. This has been done in this case, the anti-dumpingmeasures are limited to the dumping margin and not to the higherinjury elimination margin.
Conclusion
(58) As no other arguments concerning the causation of the injury sustained
by the Community industry were submitted after the imposition of the
provisional anti-dumping measure and in the light of the aboveconsiderations, it is hereby concluded that, even if other factors havecontributed to the injury suffered by the Community industry, the high
volume, low-priced dumped imports of FeSiMn originating in Russia,
Ukraine, Brazil and South Africa have, taken in isolation, caused!B1995R2413 — EN — 04.03.1998 — 002.001 — 10
material injury to the Community industry, particularly in the form of
heavy financial losses.
G. COMMUNITY INTEREST
Steel industry
(59) One association of the user industry and an unrelated importer have
submitted that the Commission should take into account the interests
of the Community steel producers as users of FeSiMn and have pointedout that the imposition of anti-dumping duties on imports of FeSiMnwould increase the production costs of the steel manufacturers and
damage their international competitiveness. The same association has
claimed that one company has estimated that FeSiMn represents 6 %of its conversion costs for steel.
(60) The Commission has established during the proceeding that FeSiMn
generally only accounts for 1 % of the total production costs of steel.
The abovementioned submission does not indicate the impact of thecost of FeSiMn on the total steel production costs, since the conversion
costs constitute only a part of the total production costs. In addition,
the submission does not make clear whether this argument is based onthe situation of the steel industry as a whole, or only particularbranches of it (e.g.: so called mini-mills).
Anti-dumping duties and competition
(61) Several exporters claim that the imposition of anti-dumping duties
would eliminate the exporters concerned from the Community market
but would not raise the European Union market prices to a level such
that the Community industry would become profitable again. Thus,they argue only the Norwegian exporters would benefit and would bein a position to reinforce their allegedly ‘dominant position’. One
exporter concerned has alleged that anti-dumping duties would only
serve to support the largest Norwegian exporter which, it was alleged,already has a ‘dominant position’ on the Community market because itholds 6 % of the shares in Comilog, a Gabon based company which has
large shareholdings in a number of Community producers.
(62) With respect to these arguments, it should be stressed, firstly, that it is
fundamentally in the general interest of the Community to eliminatethe trade-distorting effects of injurious dumping and to restore
effective competition. It is considered that measures would, neither
as a matter of general principle, nor in relation to the particularcircumstances of this proceeding, not necessarily lead to the exclusionfrom the Community market of imports from the countries concerned.
It is considered, furthermore, that restoring fair market conditions
would lead to the Community industry regaining its viability andcontinuing to be an active player on the market. The imposition of
anti-dumping duties would not, therefore, impede competition on the
Community market.
As to the allegation that the largest Norwegian exporter has a dominant
position on the Community market because of its shareholding inComilog, it is highly improbable that such a small minority
shareholding could allow the Norwegian producer in question to
control Comilog and no evidence has been presented to substantiatesuch a proposition. Nor does it appear likely that Comilog can control
the behaviour of the Community producers in which it has sharehold-
ings. This seems to be borne out by the fact that the data availableshow that trends in sales volume and market shares were substantiallyworse for the Norwegian exporter than for the Community producers
related to Comilog. If the Norwegian exporter controlled Comilog and
Comilog in turn controlled the Community producers in which it hasshareholdings, it might reasonably be expected that the sales volumeand market share trends of the Norwegian producer would at least be
similar to those of those Community producers. As pointed out, the
available data shows this not to be the case.!B1995R2413 — EN — 04.03.1998 — 002.001 — 11
The measures in question will not reduce competition in the
Community market because it will be supplied at fair prices not onlyby the complainant Community producers, the Norwegian exportersand the exporters subject to the investigation, but also from
non-cooperating Community producers and exporters other than those
in Norway, not subject to anti-dumping measures (which takentogether accounted in the investigation period for more than 15 % ofthe Community consumption of FeSiMn). These arguments and claims
have therefore to be rejected.
Substitution of FeSiMn by other ferro alloys
(63) One exporter argued that, from 1989 to the investigation period, the
production output of the European Union steel industry, the almostexclusive user of FeSiMn, fell by nearly 6 %, whereas the Commission
had established that consumption of FeSiMn on the Community
market in the same period increased by 21,4 %. The exporter claimsthat it would have important implications for the determinationconcerning Community interest, if this situation was due to a
substitution of ferro-silico (FeSi) and ferro-manganese (FeMn) by
FeSiMn because a substitution could take place, in the oppositedirection, after imposition of anti-dumping duties on FeSiMn whichwould prevent any remedial effects of the measures.
(64) In the light of the Commission’ s findings during the investigation, it
appears that a substitution of FeSi and FeMn, as indicated above, has
probably taken place. This does not however alter the fact thatinjurious dumping has occured against which the Community industryhas a legitimate right to be protected. The aim of such protection in the
framework of an anti-dumping proceeding is to restore fair market
conditions. It should also be recalled that anti-dumping measures havebeen in force for some time against certain imports of FeSi, which mayhave been a factor in the substitution of FeSi by FeSiMn. The
imposition of duties on FeSiMn is, however, less likely to result in
substitution in the opposite direction because duties on FeSi remain inforce.
Conclusion
(65) In the light of the above, the preliminary determination reached at
recital (63) of the provisional duty Regulation, that it is in the
Community interest to adopt anti-dumping measures, is confirmed.
H. UNDERTAKINGS
(66) The Commission received offers of undertakings from the Ukrainian
authorities in conjunction with the Ukrainian exporters and from the
Brazilian and South African exporters. These offers have beenexamined carefully, with particular attention being paid to thefeasibility of monitoring the undertakings proposed. In this latter
respect, the Community Institutions have, in general, certain
reservations as regards the acceptance of undertakings concerningferro-alloy products of this kind given the possibilities for circum-
vention resulting from the fungibility of the products and from the
existence of various qualities which command different prices.However, in view of the limited number of producing exportersinvolved in this case, and the nature of the marketing channels in the
Community, the Commission has accepted the undertakings offered by
the Ukrainian authorities in conjunction with the Ukrainian exportersand by the South African exporters (see Commission Decision95/418/EC (
1)) since such undertakings would eliminate the injurious
effects of dumping pursuant to Article 10 (2) of the basic Regulation
and could in the Commission’ s view be satisfactorily monitored.
With regard to Brazil, the Commission has decided not to accept
undertakings from the Brazilian exporters because the minimum pricesthey have offered were not sufficient to remove injurious dumping.
The Commission has informed the Brazilian exporters accordingly.!B
(1) See page 56 of this Official Journal.1995R2413 — EN — 04.03.1998 — 002.001 — 12
Given the above, the Council concludes that measures should be
imposed on imports of FeSiMn originating in Brazil in the form of ananti-dumping duty.
Notwithstanding the acceptance of the undertakings from the
Ukrainian Authorities in conjunction with the Ukrainian producers
and from the South African exporters, a residual duty should beimposed on imports of FeSiMn originating in Ukaine and South Africain order to underpin the undertakings and avoid their circumvention.
I.DUTY
(67) Provisional measures were imposed at the level of the dumping
margins found, except for one South African producer, for which theduty was imposed at the level of the injury margin which was lower
than the dumping margin. The definitive findings indicate that the
amended dumping margins are lower in all cases than the injurymargins, which, in the absence of any comments following theimposition of provisional measures, are confirmed. Consequently,
definitive measures should be imposed on imports in the European
Union of FeSiMn originating in Russia, Ukraine, Brazil and SouthAfrica at a level which would eliminate the dumping, pursuant toArticle 13 (3) of the basic Regulation.
In the case of Brazilian and South African firms which failed to
cooperate in the investigation or otherwise make themselves known,the findings reached at recital (71) of the provisional duty Regulationare, in the absence of any new evidence or arguments, confirmed.
Accordingly, for Brazil, the duty for non-cooperators should be at a
level corresponding to the dumping margin established for the twocooperating related exporters and, for South Africa, at a level that
eliminates the dumping on the basis of the higher of the two dumping
margins established for the two cooperating exporters.
(68) Given the price sensitivity of the market for ferro-silico-manganese,
and in order to minimize the impact of the measures on users in the
event of possible significant price increases, it is considered
appropriate in this case that the duties be imposed in the form ofvariable duties. To this end, the variable duties should be set as thedifference between the net free-at-Community frontier price, before
duty, of the product originating in Russia, Ukraine, Brazil and South
Africa and the undermentioned minimum prices in all cases where thenet free-at-Community frontier price, before duty, is lower.
— Russia: ECU 504 per metric tonne product,
— Ukraine: ECU 492 per metric tonne product,
— Brazil: ECU 485 per metric tonne product,— South Africa: ECU 500 per metric tonne product.
The duties should not apply to imports of FeSiMn produced and
exported to the EU by the Ukrainian and South African exporters from
which price undertakings have been accepted.
(69) Since imports of FeSiMn originating in Georgia were found to be de
minimis and therefore considered not to have caused injury to the
Community industry, the Commission considered it appropriate to
terminate the proceeding in this respect (see Decision 95/418/EC).
(70) The Commission will examine the situation of the market following
the imposition of anti-dumping measures and, should circumstances, in
particular as regards price evolution, warrant a review, this should be
initiated as promptly as possible.
J.COLLECTION OF THE PROVISIONAL DUTIES
(71) The Council considers that it is not appropriate, in view of the change
in the form of duty, in this particular case, definitively to collect the
provisional anti-dumping duty. Therefore, the amounts secured by way
of the provisional anti-dumping duty should be released,!B1995R2413 — EN — 04.03.1998 — 002.001 — 13
HAS ADOPTED THIS REGULATION:
Article 1
A definitive anti-dumping duty of ECU 150 per tonne of product is imposed
on imports of ferro-silico-manganese currently falling within CN Code7202 30 00 originating in Ukraine (TARIC additional code 8848).
This duty shall not apply to imports of the product as defined in this Article,
produced and exported to the Community by the following companies:(Ukraine — TARIC additional code 8847):
— Nikopol Ferro Alloy Plant,— Zaporozhye Ferro Alloy Plant.
Article 2
This Regulation shall enter into force on the day following its publication in
theOfficial Journal of the European Communities .
This Regulation shall be binding in its entirety and directly applicable in all
Member States.!B
!M2
!B1995R2413 — EN — 04.03.1998 — 002.001 — 14