This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B COUNCIL REGULATION (EC)No 423/97
of 3 March 1997
amending Regulation (EEC)No 3433/91 in respect of imports originating in Thailand and imposing
definitive anti-dumping duties on imports of gas-fuelled, non-refillable pocket flint lighters origi-
nating in Thailand, the Philippines and Mexico
(OJ L 65, 6.3.1997, p. 1)
Amended by:
Official Journal
No page date
►M1Council Regulation (EC) No 1508/97 of 28 July 1997 L 204 7 31.7.19971997R0423 — EN — 07.03.1997 — 000.001 — 1
1997R0423 — EN — 07.03.1997 — 000.001 — 2
▼B
COUNCIL REGULATION (EC)No 423/97
of 3 March 1997
amending Regulation (EEC)No 3433/91 in respect of imports origi-
nating in Thailand and imposing definitive anti-dumping duties onimports of gas-fuelled, non-refillable pocket flint lighters originating
in Thailand, the Philippines and Mexico
THE COUNCIL OF THE EUROPEAN UNION,
Havingreg ard to the Treaty establishingthe European Community,
Having regard to Council Regulation (EC) No 384/96 of 22 December
1995 on protection against dumped imports from countries not membersof the European Community(
1), and in particular Articles 9, 11 and 23
thereof,
Havingreg ard to the proposal submitted by the Commission after con-
sultingthe Advisory Committee,
Whereas:
A.PROCEDURE
1.Measures in force
(1)By Regulation (EEC) No 3433/91(2), the Council imposed a defi-
nitive anti-dumpingduty on imports of g as-fuelled, non-refillablepocket flint lighters (hereinafter referred to as ‘disposable flint
lighters’) originating, inter alia , in Thailand. The rate applicable
to products originating in that country was set at 14,1 %, with theexception of the company Politop Co., Ltd (‘Politop’), whoseduty rate was 5,8 % and the company Thai Merry Co., Ltd (‘ThaiMerry’), which was exempted from the duty since it had offered
an undertaking, accepted by Commission Decision 91/604/
EEC(
3).
(2)Further to the withdrawal of its undertakingby Thai Merry andthe subsequent imposition of a provisional anti-dumpingduty onits exports to the Community, the Council by Regulation (EC)No 398/94(
4), amended Regulation (EEC) No 3433/91 in order to
remove the exemption from the duty originally granted to this
company. Thai Merry's exports to the Community have sincebeen subject to the definitive anti-dumpingduty at the rate of14,1 %.
2.Request for a review
(3)On 18 March 1995, the Commission announced, by a notice pub-
lished in the Official Journal of the European Communities (5),
the initiation of a review of Regulation (EEC) No 3433/91 inrespect of imports of disposable flint lighters originating in Thai-land and commenced an investigation pursuant to Article 11 (3)of Regulation (EC) No 3283/94(
6) which was replaced duringthe
investigation by Regulation (EC) No 384/96, hereinafter referred
to as ‘the basic anti-dumpingReg ulation’. This interim reviewwas initiated as a result of a request lodged in March 1994 by theEuropean Federation of Lighter Manufacturers (EFLM), onbehalf of its members representingalmost the totality of Commu-nity production of the like product (namely the BIC Group, pro-
ducer in France, Greece and Spain, the Swedish Match Group,
producer in France and the Netherlands, Tokai Seiki GmbH,manufacturer in Germany and Flamagas, producer in Spain). This
(1) OJ No L 56, 6. 3. 1996, p. 1. Regulation as amended by Regulation (EC) No
2331/96 (OJ No L 317, 6. 12. 1996, p. 1).
(2) OJ No L 326, 28. 11. 1991, p. 1. Regulation as last amended by Regulation
(EC) No 1006/95 (OJ No L 101, 4. 5. 1995, p. 38).
(3) OJ No L 326, 28. 11. 1991, p. 31.
(4) OJ No L 54, 25. 2. 1994, p. 1.
(5) OJ No C 67, 18. 3. 1995, p. 4.
(6) OJ No L 349, 31. 12. 1994, p. 1.
1997R0423 — EN — 07.03.1997 — 000.001 — 3
▼B
request, which alleged that the measure in force in respect of
Thai imports was no longer sufficient to counteract the injuriousdumping, contained sufficient evidence to justify the initiation of
a review.
(4)Since the interim review in respect of imports originating in
Thailand was likely not to be concluded before the end of the
five-year period of application of the measures concerned (that is
to say, on 30 November 1996), the interim review has also cov-ered, in accordance with Article 11 (7) of the basic anti-dumpingRegulation, the circumstances set out in Article 11 (2) of the saidRegulation (i.e. the circumstances due to be examined in the con-text of an expiry review).
3.Complaints
(5)On 18 March 1995, the Commission announced, by a notice pub-
lished in the Official Journal of the European Communities (1)
the initiation of an anti-dumpingproceedingconcerningimportsof disposable flint lighters originating in the Philippines andMexico and commenced an investigation pursuant to Article 5 ofthe basic anti-dumpingReg ulation. This proceedingwas initiatedas a result of two complaints lodged in August 1994 in respect of
imports of disposable flint lighters originating respectively in the
Philippines and in Mexico.
The complaint concerningimports orig inatingin the Philippines
was lodged by the BIC Group, the Swedish Match Group and theTokai Seiki GmbH, representingmore than 90 % of total Com-munity production of the like product. Immediately before initia-
tion, the Spanish producer Flamagas became party to the com-
plaint.
The complaint concerningimports orig inatingin Mexico was
lodged by the BIC Group and the Swedish Match Group only.The complaint remained, however, admissible, since the com-plainingproducers represented a major proportion of total Com-munity production of the like product. Immediately before initia-
tion, the Spanish producer Flamagas also became party to this
complaint.
It was considered that the relevant complaints contained suffi-
cient evidence of dumpingby the Filipino and Mexican importsand of material injury resultingtherefrom to justify the initiationof anti-dumpingproceeding s. It was, however, considered appro-
priate that the relevant investigations be carried out in the frame-
work of a single proceeding, given that both complaints, lodgedalmost at the same time, contained similar allegations concerningimports of the same product.
4.Initiation of investigations
(6)The Commission officially advised the exporters and importers
known to be concerned, the representatives of the exportingcountries and the complainant Community producers of the
initiation of the review and the initiation of the new proceeding.
Interested parties were given the opportunity to make their viewsknown in writingand to request a hearing .
(7)A number of importers and producers in the countries concerned
made their views known in writing. All parties who so requested
were granted hearings.
(8)The investigation of dumping in respect of the three exporting
countries concerned covered the period 1 April to 31 December
1994 (hereinafter referred to as ‘the investigation period’). Forthe purpose of the dumping, injury and Community interest deter-minations, the geographical scope of the investigation was theCommunity as composed at the time of initiation, thereforeincludingall 15 Member States.
(1) OJ No C 67, 18. 3. 1995, p. 3.
1997R0423 — EN — 07.03.1997 — 000.001 — 4
▼B
(9)The Commission sent questionnaires to all parties known to be
concerned and received detailed replies from the complainant
Community producers, from two producers in Thailand, one pro-ducer in Mexico and its related exporter in the United States aswell as from another related company which was sellingthe likeproduct on the Mexican market, from three producers in the Phi-lippines and a related company in Japan, and from four importers
in the Community related to the producers in the exportingcoun-
tries concerned and one independent importer in the Community.
(10)The Commission sought and verified all the information it con-sidered necessary for a determination of dumpingand injury andcarried out investigations at the premises of the following firms:
(a) complainant Community producers:
Producing companies:
— BIC SA, Redon, France,
— Feudor SA (Swedish Match), Rillieux-la-Pape, France;
Producing companies and sales offices:
— Flamagas SA, Barcelona, Spain,
— Laforest BIC SA, Tarragona, Spain,
— Violex BIC SA, Athens, Greece;
Sales companies:
— BIC Deutschland GmbH, Ettlingen, Germany,
— BIC SA, Clichy, France,— Biro BIC Limited, London, United Kingdom,
— Cricket SA (Swedish Match), Rillieux-la-Pape, France,
— Ebas Nederland (Poppell BV — Swedish Match), Eind-
hoven, Netherlands;
(b) producers/exporters:
From Thailand:
— Politop Co., Ltd, Bangkok, Thailand,
— Thai Merry Co., Ltd, Samutsakorn, Thailand;
From the Philippines:
— Iwax Philippine, Inc., Rosario, Cavite, Philippines (the
investigation having also covered the related companyIwahori Philippines, Inc., Mariveles, Bataan, Philippines),
— Iwax Inc., Shizuoka, Japan (in respect of exports from its
subsidiaries Iwax Philippine, Inc. and Iwahori Philip-pines, Inc.),
— Swedish Match Philippines, Inc., Manila, Philippines;
From Mexico:
— JMP Mexico, SA de CV, Tijuana, Mexico (in respect of
its production of disposable flint lighters in Mexico),
— Tokai de Mexico, SA de CV, Cuernavaca, Mexico (in
respect of its domestic sales of disposable flint lighters in
Mexico),
— Scripto Tokai Corp., Fontana, USA (in respect of its
exports to the Community of disposable flint lighters
manufactured by JMP in Mexico);
(c) importers related to producers/exporters:
— Iwax (UK) Ltd, Ballymoney, United Kingdom; this
importer became independent after the period of investi-
gation,
— Poppell BV (Swedish Match), Eindhoven, Netherlands,
— Tokai Seiki GmbH, Mönchengladbach, Germany,
— Tokai Seiki BV, Hoofddorp, Netherlands;
(d) independent importers:
— Pollyflame International BV, Roelofarendsveen, Nether-
lands.
1997R0423 — EN — 07.03.1997 — 000.001 — 5
▼B
5.Subsequent procedure
(11)It has to be noted that a number of considerations (detailed in
recitals 40 to 44) have led the Commission to the conclusion thata cumulative assessment of the effect of the dumped imports
from both the country subject to a review (Thailand) and the two
countries subject to a new proceeding(the Philippines and Mex-ico), was warranted.
As as result, from a procedural point of view, it was considered
that definitive measures, if any, should be directly adopted in
respect of all three countries concerned, without resortingto theintermediate step of provisional duties (an approach which alsoimplied that the measures in force in respect of Thai importswould have to be simultaneously repealed).
(12)The Commission accordingly continued to seek and verify allinformation it deemed necessary for its definitive findings.
(13)Parties were informed of the essential facts and considerations onthe basis of which it was intended to recommend the imposition
of definitive anti-dumpingduties. They were also g ranted a per-
iod within which to make representations (and/or offer undertak-ings) subsequent to the disclosure.
(14)The parties either did not submit any written comments or sub-mitted comments which did not justify any alteration of the preli-minary conclusions. Within the specified time limit, three produ-cers/exporters offered undertakings.
(15)The establishment of findings which, without resorting to the
intermediate step of provisional duties, could be considered as
final, made it necessary to provide all parties involved with preli-minary and final disclosure and grant them sufficient time to sub-mit their views. This, together with the setting up of appropriateundertakings, proved to be time-consuming and accordingly, theinvestigation overran the normal duration provided for in Articles
6 (9) and 11 (5) of the basic anti-dumpingReg ulation.
B.PRODUCT UNDER CONSIDERATION AND LIKE PRODUCT
1.Product under consideration
(16)The product subject to the definitive anti-dumpingduty referred
to in recital 1, as well as the product subject to the proceedinginitiated in respect of imports originating in the Philippines andMexico, is gas-fuelled, non-refillable pocket flint lighters. This
product falls within CN code ex 9613 1000.
It should be recalled in this respect that there are other disposable
lighters on the market (piezo lighters) the technical characteristicsof which are quite different from those of the abovementioned
product. They were therefore not considered to be identical to the
product concerned in the original investigation concerning Thai-land, were not covered by the original investigation and wereexcluded from the scope of the measures. No reasons haveemerged in the course of the current review and new proceedingwhich would justify a departure from this approach. Accordingly,
piezo lighters were kept outside the scope of the current investi-
gations.
In their representations made further to the final disclosure, the
Thai authorities have argued that there are two distinct segments
in the Community's disposable flint lighter market, the high end
served by high quality Community produced lighters and the lowend served by imports, includingthose from Thailand. This view,expressed in previous cases concerningdisposable flint lig hters,cannot be shared for the reasons already given in the past, whichcan be summarized as follows:
For the market of a product to be divided into segments requires
at least that differences in physical characteristics be perceptibleto, and actually perceived by, consumers and that clearly separatechannels of sale exist. These conditions are not met in the case if
1997R0423 — EN — 07.03.1997 — 000.001 — 6
▼B
disposable flint lighters, since all such products, which are glob-
ally perceived as being‘non-piezo and disposable’ lig hters aresold without distinction in the same kind of shops to customers
havingthe same expectations (namely to buy a disposable pro-
duct belonging to a single category of utility goods).
Finally, it has to be noted that although the product under consid-
eration is manufactured in different sizes and models, all thesedisposable flint lighters have the same basic technical characteris-tics, the same basic application and perform the same function.
Accordingly, as in previous investigations, the whole range of
models of disposable flint lighters was considered as forming onesingle category of product.
2.Like product
(17)As regards the disposable flint lighters produced and sold domes-
tically in the three countries concerned where such sales hadtaken place and information in their respect had been made avail-
able, the investigation showed that such products were either
alike in all respects to, or closely resembling, those exported tothe Community from the countries in question.
(18)The investigation also established that the disposable flint lightersproduced by the Community industry and sold in the Communitymarket and those imported from the three countries concernedpossess similar basic physical and technical characteristics andare intended for the same use. While there may be some minordifferences between the product imported from the countries con-
cerned and the Community production, these differences (for
instance in the presentation or the technique used for the assem-bly of the lighter) do not affect the substantial characteristics andproperties of the product. The disposable flint lighters producedand sold by the Community industry and those imported from thethree countries concerned should therefore be regarded as like
products.
(19)Accordingly, it is concluded that disposable flint lighters pro-
duced and sold in the Community, as well as those produced and
sold in Thailand, the Philippines and Mexico and those exported
to the Community from these three countries should be regardedas ‘like products’, within the meaningof Article 1 (4) of the basicanti-dumpingReg ulation.
C.DUMPING
1.Normal value
(a)Thailand
(20)One Thai cooperatingexporter, whose exports represented almost
100 % of total Community imports from Thailand duringtheinvestigation period, had sold disposable flint lighters on itsdomestic market. For two models, normal value was based on
domestic sellingprices, since after exclusion, in accordance with
the provisions of Article 2 (4) of the basic anti-dumpingReg ula-tion, of non-profitable sales, the remainingprofitable sales ofcomparable models were found to represent at least 5 % of thesales volume of the models concerned to the Community. For athird model, in the absence of sufficient profitable sales of a com-
parable model, normal value was constructed on the basis of the
company's costs of manufacture, selling, general and administra-tive expenses (hereinafter referred to as ‘SG & A’) and profit.These SG & A and profit were established on the basis of theabovementioned profitable sales.
(21)For the other Thai exporter, no dumpingcalculation could bemade due to the fact that the company had ceased to export in1992.
(b)Mexico
(22)The sole Mexican cooperatingexporter, whose exports repre-
sented almost 100 % of total Community imports from Mexico
1997R0423 — EN — 07.03.1997 — 000.001 — 7
▼B
duringthe investig ation period, was fully export oriented but was
nevertheless able to provide information regarding sales of thelike product on its domestic market, as another company in the
same group was producing and selling disposable flint lighters on
the Mexican market. However, the sales in question, which werethe only domestic sales of the like product available in Mexico,proved to be partly made at a loss, the remainingprofitable salesrepresentingless than 5 % of the quantities exported to the Com-
munity.
(23)Accordingly, the Commission constructed normal value for thisexporter by addingto the cost of manufacture of each exported
model, the domestic SG & A available in Mexico, i.e. those of itsrelated company sellingdisposable flint lig hters in Mexico. Asregards profit, given the lack of representative profitable sales inMexico for disposable flint lighters and the non-availability of
reliable data in respect of sales of the same general category of
products in this country, a reasonable alternative solution had tobe sought.
(24)To this end, it was examined whether Thailand, for which repre-sentative and reliable data were available, could be considered asa comparable market to Mexico in the sector concerned and,thus, an appropriate reference for the profit determination. Thisexamination led to the conclusion that the conditions prevailing
on both markets were similar. Moreover, the exporter concerned
acknowledges that the profit margin achieved in Thailand wasnot exceedingthe one normally realized on the Mexican marketin the same business sector. Therefore, for the purpose of con-structingnormal value for each model exported by the Mexican
cooperatingexporter, the profit marg in established in Thailand
was, in accordance with the provisions of Article 2 (6) (c) of thebasic anti-dumpingReg ulation added to the abovementionedMexican cost of manufacture and domestic SG & A.
(c)Philippines
(25)The comparison of import statistics, after exclusion, on the basis
of available data, of certain lighters which are outside the scopeof the investigation (see recital 16, considerations concerningpiezo lighters) with quantities reported by the three Filipinocooperatingexporters for the period of investig ation, showed a
level of cooperation close to 100 %.
(26)In the Philippines, two cooperatingexporters (belong ingto thesame group) were solely export oriented. The third cooperating
exporter was sellingon its domestic market throug h a relatedsellingcompany duringthe investig ation period, but the latter,recently become independent, refused to cooperate. Therefore, noinformation regarding sales of the like product (or of the same
general category of products) on the Filipino market could be
collected and normal value had to be constructed on the basis ofdata available.
(27)To this end, it was examined whether Thailand, for which repre-sentative and reliable data were available, could be considered asa comparable market to the Philippines in the sector concernedand, thus, an appropriate reference for the SG & A and profitdetermination. This examination led to the conclusion that the
conditions prevailingon both markets were similar. Moreover,
the exporters concerned admitted that both the SG & A incurredand the profit margin achieved in Thailand were not exceedingthose normally encountered on the Filipino market in the samebusiness sector. Therefore, for the purpose of constructingnormal
value in the case of the three Filipino cooperatingexporters, the
Commission added to their respective cost of manufacture foreach exported model, in accordance with the provisions of Article2 (6) (c) of the basic anti-dumpingReg ulation, an amount forSG & A and for profit based on the respective amounts estab-lished in Thailand.
1997R0423 — EN — 07.03.1997 — 000.001 — 8
▼B
2.Export price
(28)Practically all export transactions made by the exporters con-
cerned duringthe investig ation period were considered (only afew models sold in very small quantities were disregarded inagreement with the representatives of the companies concerned).
(29)Where export sales were made directly to unrelated importers,export prices were established on the basis of the prices actuallypaid or payable for the product sold for export to the Commu-
nity.
(30)Where exports were made to related companies which imported
the product concerned into the Community, export prices were
constructed on the basis of resale prices to the first independent
buyer, adjusted to take account of all costs incurred betweenimportation and resale includingcustoms duties and a reasonableprofit margin (namely 5 %). The latter was established on thebasis of the profit margins considered reasonable in this business
sector for unrelated importers.
Where cost allocations for importers' SG & A were necessary in
the construction of export prices, these were generally made onthe basis of turnover with the exception of those cases where theimporters provided sufficient evidence to justify another methodof allocation. These allocations included all the general adminis-
tration and sellingcosts related to the sales under consideration,
whether financed by the exporter or by the related importer. Dis-counts and rebates given in connection with sales of the relatedimporter to independent buyers were taken into account in con-structingexport prices.
3.Comparison
(31)The weighted average normal value by model, as determined
above, was compared at an ex-factory level with the export price,on a weighted average basis in the case of Thailand and on atransaction-by-transaction basis in the case of the Philippines andMexico. Indeed, in the latter cases, the export price had to beconstructed on the basis of resale prices to the first independent
buyer. These resale prices and the correspondingconstructed
export prices showed patterns of pricingdifferingsig nificantlyamongdifferent purchasers, reg ions or time periods, which wouldhave resulted in that the full degree of dumping being practisedwould not have been reflected had the method based on
weighted-average export prices been used.
(32)As far as differences affectingprice comparability are concerned,
adjustments were granted in accordance with Article 2 (10) of the
basic anti-dumpingReg ulation, where satisfactory evidence was
therefore supplied. Such adjustments concerned differences incosts for level of trade (calculated on the basis of advertisingcosts, incurred on the domestic market but not on exports), trans-port, insurance, handling, packing and credit.
4.Dumping margins
(33)The examination of the facts showed the existence of dumping
for all the cooperatingexporters for which calculations could bemade, the dumpingmarg ins beingequal to the differencebetween normal value and export price duly adjusted.
(34)The weighted average dumping margins expressed as a percen-tage of the free at Community frontier price are as set out below:
Thailand:
Thai Merry: 51,9 %;
Mexico:
production by JMP Mexico and exports by Scripto Tokai Corp.
USA: 27,1 %;
1997R0423 — EN — 07.03.1997 — 000.001 — 9
▼B
Philippines:
— production by Iwax Philippine Inc. and Iwahori Philippines
Inc. and exports by Iwax Inc. Japan (single dumping margin):52,6 %;
— Swedish Match Philippines, Inc. 36,7 %.
D.COMMUNITY INDUSTRY
(35)The investigation confirmed that the complainant Community
producers, either represented by the EFLM (on whose behalf therequest for an interim review in respect of Thai imports had been
lodged) or acting separately in two distinct groups (one having
lodged the complaint concerning imports originating in the Phi-lippines and the other one the complaint concerningimports ori-ginating in Mexico), accounted in all cases for a major proportionof total Community production of the like product.
(36)Duringthe course of the investig ation carried out in respect ofthe above companies, it became apparent that two producers orgroups of producers, namely Tokai Seiki GmbH, together with
one of its sales subsidiary in the Community, and the companies
belonging to the Swedish Match Group, were related respectivelyto the sole Mexican exporter and one Filipino exporter and werealso importingthe dumped product from the countries concerned.
In these circumstances, the Commission examined whether, in
the light of the provisions of Article 4 (1) (a) of the basic anti-
dumpingReg ulation, these companies should be excluded from
‘the Community industry’. In this respect, it should be recalledthat Article 4 (1) (a) does not provide for the automatic exclusionof producers who are related to exporters and/or themselvesimportingthe dumped products, but rather oblig es the Commis-sion to examine on a case-by-case basis whether the exclusion of
any producer in this situation is warranted.
(37)As far as Tokai Seiki GmbH is concerned, it has firstly to be
noted that this company had made it clear that it only supported
the action against the Philippines and Thailand and that its coop-
eration as a potential Community producer was restricted to theinvestigations in respect of these two countries. Secondly, theinvestigation showed that this producer was not only related tothe sole Mexican exporter but also responsible for a very largeproportion of the total imports into the Community of disposable
flint lighters declared as originating in Mexico.
In this respect, it should be recalled that the investigations con-
cerningMexican and Filipino imports were carried out in the fra-mework of a single proceeding (see recital 5) and that a cumula-tive assessment of the effect of the dumped imports from Thai-land, the Philippines and Mexico was found to be warranted (see
recitals 40 to 44). In this context, it was considered that taking
into account the situation of Tokai Seiki GmbH in the overallinjury assessment was not appropriate since, given the impor-tance of the Mexican imports concerned, it would have led tounreliable results. Accordingly, it was considered appropriate to
exclude Tokai Seiki GmbH from ‘the Community industry’.
(38)As regards the companies belonging to the Swedish Match
Group, which are related to the Filipino exporter Swedish Match
Philippines, Inc., it appeared appropriate to determine whether
those companies (which were complainants in all three cases andfully cooperated in all three investigations) were primarily produ-cers with an additional activity based on imports and merely sup-plementingtheir Community production, or whether they wereimporters with relatively limited additional production in the
Community.
The investigation revealed that the import activity of the compa-
nies belonging to the Swedish Match Group in respect of the pro-duct concerned originating in the Philippines was extremely lim-ited, thus underliningthat the core of their operations relatingtothe product concerned firmly remained in the Community.
1997R0423 — EN — 07.03.1997 — 000.001 — 10
▼B
Accordingly, it was considered appropriate to maintain the com-
panies concerned within ‘the Community industry’.
(39)The injury findings set out below are therefore based on theinformation submitted by the cooperatingcompanies other than
Tokai Seiki GmbH, namely the producers belonging to the BIC
Group and to the Swedish Match Group, and the Spanish com-pany Flamagas.
E.INJURY
1.Cumulation
(40)The basic anti-dumpingReg ulation requires, as a precondition of
cumulation, that the countries concerned be subject to simulta-
neous investigations, that the margin of dumping established inrelation to the imports from each country be more than de mini-
mis(i.e. more than 2 %) and that the volume of imports from
each country be not negligible. Where such conditions are met,the conditions of competition should then be examined, in parti-
cular to determine whether imported products originating in the
countries concerned are interchangeable, are sold at similar pricelevels, have common or similar channels of distribution and aresimultaneously present in the same geographical markets.
(41)In this respect, it has to be noted that the disposable flint lightersexported from all three countries concerned are subject to simul-
taneous investigations which have established dumping margins
ranging from 27,1 to 52,6 %. In addition, none of the exportingcountries concerned delivered to the Community quantities repre-sentinga market share beneath 1 %, which could then have beenconsidered as negligible.
As regards their conditions of competition, the imported products
originating in the three countries concerned were found to beinterchangeable and sold at similar price levels, to have similarchannels of distribution and to be simultaneously present in thesame geographical markets.
In this context, the followingarg uments were raised by interested
parties:
(42)The two related Filipino producers questioned the appropriate-ness of cumulation in the case of Filipino and Mexican importson the grounds that differences in volume and progression of
imports between these two countries would be such as to affect
the above conclusion that Filipino and Mexican disposable flintlighters were competing under similar conditions on the Commu-nity market.
In support of this assertion, they claimed that the actual rate of
increase of Filipino imports was not, by far, as sharp as that ofMexican imports and that the difference was such as to warrant aseparate assessment of the impact of the imports concerned in theCommunity market. Information was provided showingthat the
actual progression of Filipino imports was less marked than the
one reported by Eurostat. Reference was also made to a previouscase(
1) where the Commission had decided not to cumulate
imports from Korea and China because the investigation hadshown ‘diametrically opposed progressions’, in recital 42 of thatRegulation, as regards import volume and market share as well
as marked differences in these two countries' respective pricing
policies.
However, while the progression of Filipino imports (correspond-
ingto an increase in market share from 2 % in 1990 to 3,3 % in
(1) Commission Regulation (EEC) No 763/90 of 26 March 1990 imposing a pro-
visional anti-dumping duty on imports of tungsten carbide and fused tungsten
carbide originating in the People's Republic of China and terminating the
anti-dumpingproceedingconcerningimports of those products from the
Republic of Korea (OJ No L 83, 30. 3. 1990, p. 36).
1997R0423 — EN — 07.03.1997 — 000.001 — 11
▼B
1994) is less marked than that registered in the case of Mexican
imports, of which the startingpoint was lower (the Mexican mar-ket share, 0,1 % in 1990 reached 9,2 % in 1994), it must be noted
that both countries achieved a significant market share during the
investigation period and exports were made at prices significantlyundercuttingthose of the Community industry. In addition, it isworth notingthat both Filipino and Mexican imports haveincreased in absolute terms as well as in market share and the
levels of price undercuttingpractised were very similar.
It was therefore considered that the respective positions of Fili-
pino and Mexican imports on the Community market were notsufficiently different so as to justify a findingthat the conditions
of competition between Filipino and Mexican lighters were dif-
ferent. Accordingly, the above claim could not be accepted.
(43)The representative of one of the Thai exporters also claimed thatthe injury caused by Thai imports should not be cumulativelyassessed with the one attributable to Mexican/Filipino imports forthe followingreasons: Althoug h Article 3 (4) of the basic anti-dumpingReg ulation allows cumulation in case of simultaneous
investigations, cumulation of Thai imports, which are the subject
of an interim review, with Mexican/Filipino imports would beinappropriate because the legal standards (and the consequentlegal tests) which apply in such a review would be different fromthose applicable to a new proceeding.
As regards the appropriateness of a global assessment of the
impact of imports already subject to measures together withimports which are investigated for the first time, it is consideredthat since the basic anti-dumpingReg ulation does not precludesuch a methodology, in particular where a full scale injury inves-
tigation has been carried out, any decision in this respect should
be made for each case on its own merits, i.e. by examiningtheimpact of the respective behaviour of the exportingcountriesconcerned.
In this respect, it should be noted that the anti-dumpingmeasures
applicable to Thai imports did not prevent this exportingcountry,after the withdrawal by the main Thai exporter of its undertakingin 1993, to resort again to injurious dumping, with the result thatThailand appears to have then adopted a very similar behaviourto that of the Philippines and Mexico.
This similarity of behaviour means that, notwithstandingthe mea-
sures in force (likely to have, ipso facto , become insufficient to
counteract the injurious dumping), imports from the countrybeingreviewed may have contributed, on a par with imports
from the countries subject to the new proceeding, to any injury
which may prove to be attributable to the dumped imports underinvestigation.
(44)Therefore, it was considered that the similarity of behaviour ofthe three exportingcountries concerned (with the consequentimpossibility to assess separately their respective contribution toinjury), together with the fact that the above criteria concerning
conditions of competition are met, was such as to make cumula-
tion warranted.
This approach was criticised by the Thai authorities on the
grounds that it would lead to a confusion of the issue of whether
to impose anti-dumpingduties in the first instance (i.e. in respect
of Filipino and Mexican imports) with the separate, allegedlyhigher standard of whether existing duties (applicable to Thaiimports) should be continued (in an amended form, in the contextof an interim review havingalso covered the circumstances dueto be examined in an expiry review).
This view could not be accepted in particular because the argu-
ment of the Thai authorities that the standards of injury applic-able to reviews of the present kind would be higher than the oneapplicable to new proceedings does not appear to be correct,
1997R0423 — EN — 07.03.1997 — 000.001 — 12
▼B
notably in the light of the combined provisions of Articles 3 and
11 of the basic anti-dumpingReg ulation. Indeed, in the contextof a review of the present kind, the Institutions have to take
account of the fact that the existingmeasures may have limited
the injurious effects of the dumped imports under examination.The latter may have either remained injurious or become such asto support a findingthat the injury is likely to recur in theabsence of measures.
On the basis of all the above considerations, the appropriateness
of the cumulative assessment of the similar and simultaneouseffect of the dumped imports from the three countries concernedwas therefore confirmed.
2.Total Community-consumption
(45)In order to calculate total apparent consumption of the product in
question on the Community market, Community producers' salesin the Community of disposable flint lighters were added to thetotal imports into the Community, as declared under CN code
961310 00 (excluding, however, as far as the Philippines are
concerned, disposable piezo lighters, on the basis of reliable datamade available duringthe investig ation). On this basis, the totalapparent consumption of disposable flint lighters has grownbetween 1990 and 1994 by 21 %.
(46)It is, however, known that this high rate of increase has to bequalified. Indeed, importers (which were anticipatingan
increased anti-dumpingduty on Chinese disposable flint lig hters)
imported large quantities from the People's Republic of China atthe end of 1994. Part of these quantities (around 65 millionunits), which could not be put on the market before 1995, werekept in stock and this situation artificially increased total apparentconsumption in 1994.
Thus, in order to assess the actual rate of increase of Community
consumption, the Commission has estimated that the share ofChinese imports cleared through customs in 1994 (amounting intotal to 176,7 million units) likely to have been resold (by impor-
ters to wholesalers or retailers) in the same year amounted to ±
110 million units. On this basis, the increase in total consumptionis 11 % (instead of 21 %). Such a rate of increase would appearto reflect fairly the actual trend of Community consumption.
3.Factors relating to the dumped imports
(a)Imports' increase rate
(47)The overall rate of increase of imports from the countries con-
cerned was found to be very significant (more than + 280 %).
Indeed, between 1990 and 1994, quantities:
— were multiplied by more than 120 in the case of Mexico
(even though from an admittedly extremely low startingpoint),
— increased by more than 95 % in the case of the Philippines,
— increased by 18 % in the case of Thailand. In the context of a
review, such an increase rate remains significant, as it appearslikely that the imposition of anti-dumpingmeasures in 1991(and their amendment in 1994), has had an impact on the rateof increase of Thai imports, even if limited by the decrease inThai sellingprices followingthe withdrawal of its undertak-
ingby the main Thai exporter.
(b)Market share
(48)Imports from the three countries concerned, considered together,
have captured between 1990 and 1994 an additional 10 % of the
Community market for the product in question (their share of the
market indeed increased from 4,6 to 15 %). In the meantime, in agrowing market, the Community producers have lost a substantialshare of the market, namely more than 8,5 percentage points,from 57,3 % in 1990 to 48,6 % in 1994. This means that, glob-ally, the position of other third countries has also been slightly
1997R0423 — EN — 07.03.1997 — 000.001 — 13
▼B
eroded (a more detailed examination however showed, as
explained at recital 70, that the People's Republic of China sub-stantially increased its share of the Community market to the det-
riment of exportingcountries other than those subject to the cur-
rent investigations).
(c)Prices of imports
(49)For the model comparison, as in all previous investigations con-
cerningdisposable flint lig hters, it was considered appropriatethat only those lighters with an equal or almost equal amount ofgas, and therefore a similar number of ignitions, be taken as a
basis for the calculation of undercutting.
(50)Where sales were made to unrelated importers, the comparison
was made between the cif import price, adjusted to duty paid,customer delivered level and the sellingprice in the EC of theCommunity producers at the same level of trade. Where sales
were to a related importer, the price comparison was made on the
basis of the sales to the first independent customer.
The average level of price undercutting, expressed as a percen-
tage of the Community industry's average price, was found to be
more than 30 % in all cases but one (namely the Filipino com-pany related to the Swedish Match Group, whose exports to theCommunity, in extremely limited quantities, cannot be consid-ered as representative of Filipino exports of disposable flint light-ers). This means that prices of the disposable flint lighters
imported from the countries concerned were significantly below
the prices practised by the Community producers duringtheinvestigation period.
4.Situation of Community industry
(a)General
(51)The lighter market is very price sensitive. In order to be able to
sell or to keep market share, the numerous producers and buyerson the market tend to adjust their prices to the lowest level on
offer. This means that faced with low priced dumped imports, the
Community industry is either forced to lower its prices in orderto try to maintain market share, production level and capacity uti-lization, or led to lose market share if it tries to maintain itsprices.
(b)Capacity, production and sales
(52)Between 1990 and the investigation period, capacity remained
stable while production very slightly increased. Sales slightly
increased in volume and very slightly increased in value.
(c)Market share
(53)The Community industry's market share decreased from 57,3 %
in 1990 to 48,6 % in the investigation period.
(d)Prices
(54)Prices, on average, slightly improved until 1992, then slightly
decreased. It has to be noted in this respect that, in an attempt to
keep its market share, the Community industry has, over the per-
iod examined, sold increasingquantities of products with specialexecutions (such as ‘sleeved’ and ‘printed’ lighters, which wouldhave normally justified price levels higher than those of ‘stan-dard’ lighters). The investigation thus showed that such higherprice levels, which would normally be associated with more
sophisticated products, could not be maintained, with a conse-
quent impact on the Community industry's profitability.
(e)Profitability
(55)The Community industry's average return on sales of the like pro-
duct, negative in 1990, improved and became slightly positive in1991. It deteriorated again, but remained positive, in 1992. In1993, the average return was, again, negative. During the investi-
1997R0423 — EN — 07.03.1997 — 000.001 — 14
▼B
gation period, the average sales price was slightly above the aver-
age cost of production.
(f)Employment
(56)In an effort to reduce its costs, the Community industry continued
to reduce the number of its employees (an 8 % reduction between1990 and 1993 was partly compensated for in 1994, but the num-ber of employees remained, in 1994, 4 % below its level of
1990).
5.Conclusion on injury
(57)Prices of imports very substantially undercut the Community
industry's average price, namely by more than 30 % (with the
exception of the Filipino company related to a Community pro-
ducer whose exports were too limited to be considered as repre-sentative of Filipino exports).
(58)Injury to the Community industry over the period under examina-
tion mainly took the followingform:
— loss of market share: the Community producers have lost an
8,5 percentage point share between 1990 and 1994 (or even a
15 percentage point share if 1994 is compared with 1992).
Given that, in terms of volume, their sales remained stable,this means that Community producers have been totally pre-vented from benefitingfrom the market expansion,
— insufficient profitability: the Community industry's overall
profitability remained very low (particularly for an industryrequiringsubstantial investments to innovate). This resultsfrom the fact that its prices, heavily undercut, could not be
increased, even slightly, over the last five years (despite the
fact that the share of the products with special executions,normally more expensive, increased). The Community produ-cers' very low level of profitability reached in 1994, ifallowed to continue, will not be sustainable. This creates aserious risk to see Community producers, in a relatively short
time, relocatingtheir production outside the Community.
(59)In summary, the Community industry, which appeared to be in
the process of recoveringfrom the effects of past dumping , is stillin a very precarious financial and market situation and on this
basis, it is concluded that it has been adversely affected and has
suffered injury which is sufficient for it to be classified as mate-rial.
F.CAUSATION OF INJURY
(60)For the purpose of determiningwhether the injury suffered by the
Community industry was caused by the Thai, Mexican and Fili-
pino dumped imports and whether other factors caused or con-tributed to that injury, the followingelements were examined.
1.Effect of the dumped imports
(61)In examiningthe effects of the dumped imports, it was found that
the increasingvolume and decreasingprices of the dumpedimports coincided with the loss of market share and the deteriora-tion in the financial situation of the Community industry.
(62)Indeed, between 1990 and the investigation period, the marketshare held by the dumped imports from the three countries con-cerned has significantly increased, namely from 4,6 to 15 %, i.e.by more than 10 % of total consumption, while the Communityindustry's market share decreased by more than 8,5 % of totalCommunity consumption. In addition, duringthe investig ation
period, prices of the disposable flint lighters imported from Thai-
land, the Philippines and Mexico were significantly below theprices practised by the Community producers (on average bymore than 30 %).
Given that the market in question is highly price sensitive, as
already explained at recital 51, it is clear that this significantprice undercuttingby Thai, Filipino and Mexican dumped
1997R0423 — EN — 07.03.1997 — 000.001 — 15
▼B
imports, with consequentially increased market share, has signifi-
cantly affected the Community industry, even more so as theimported products were sold through the same sales channels and
to the same customers as those of the Community industry.
2.Effect of other factors
(a)Volume and prices of imports not sold at dumping prices
(63)Imports from third countries other than those subject to anti-
dumpingmeasures or to the current investig ations were found tohave increased by 34 % between 1990 and 1994. However, thisincrease is not very significant in terms of market share (from10 % in 1990 to 11,3 % in 1994).
(64)As to the price levels of these imports, it has to be stressed thatEurostat data, based on a mix of different lighters, cannot be con-sidered as a suitable basis for the purpose of establishingaccurateunit prices. In any case, no substantiated evidence which would
show that the actual price levels of these imports were signifi-
cantly undercuttingthe Community industry's prices was sub-mitted by any interested party.
(b)Evolution of demand and pattern of consumption
(65)As can be seen from recitals 45 and 46, no contradiction in
demand or any other negative changes in the patterns of con-sumption took place duringthe period under examination.
(c)Trade practices of, and competition between, third countries and
Community producers
(66)No evidence concerningthe existence of restrictive trade prac-
tices of third countries, which could have been a source of injury
to the Community industry, has been submitted. As far as compe-
tition between other third countries and Community producers isconcerned, no other case than that of Chinese imports, examinedbelow, appeared to warrant special consideration.
(d)Developments in technology, export performance and productivity of
the Community industry
(67)The ability of the Community industry to follow, or even get
ahead of, its competitors as regards technological developments
is not in question (Community producers have indeed registered
several valuable patents concerningthe manufacture of disposa-ble flint lighters).
(68)The Community industry's ability to compete on export markets
outside the Community is also clearly established (Community
producers' sales of disposable flint lighters to third countries roseby 14 % between 1990 and 1994).
(69)The same applies to the Community industry's productivity per
worker, which has slightly improved between 1990 and 1994.
(e)Impact of other imports sold at dumping prices
(70)The case of the People's Republic of China was found to warrant
special consideration in this context. This country indeed
appeared to have substantially increased its share of the Commu-
nity lighter market over the period 1990 to 1994. Quantitiesexported from the People's Republic of China to the Communitywere very substantial and prices not only dumped but also verylow. By Council Regulation (EC) No 1006/95(
1), these imports
were subjected to an increased anti-dumpingduty.
All cooperatingexporters have claimed that they were forced to
follow the trend set by the Chinese in order to continue to sell.
Although this argument is not totally unfounded, it is consideredthat the fact that the People's Republic of China has become oneof the major players on the market (largely through dumping)cannot exempt other exportingcountries, deliveringquantities
(1) OJ No L 101, 4. 5. 1995, p. 38.
1997R0423 — EN — 07.03.1997 — 000.001 — 16
▼B
which are far from being negligible, from their responsibility for
resortingto injurious dumping .
In addition, this does not detract from the fact that severe compe-
tition of low-priced dumped imports from Thailand, the Philip-pines and Mexico has significantly participated to the downwardpressure put on disposable flint lighter prices in the Community.
3.Conclusion on causation
(71)Notwithstandingthe fact that another element, namely the
dumped imports from the People's Republic of China, may havehad a negative impact on the Community industry, it is consid-ered that dumped imports from Thailand, the Philippines andMexico have by themselves caused material injury to the Com-
munity industry. This conclusion is based on the various elements
set out above and especially the level of price undercuttingandthe quantities concerned which resulted in a significant down-ward price pressure.
G.CONTINUATION OR RECURRENCE OF DUMPING AND
INJURY (THAILAND)
(72)Since, as explained in recital 4, the interim review in respect of
imports originating in Thailand was likely not to be concludedbefore the end of the five-year period of application of the mea-sures concerned, the interim review concerningthis country has
also covered the circumstances due to be examined in the context
of an expiry review as set out in Article 11 (2) of the basic anti-dumpingReg ulation.
(73)In the course of this examination, carried out with a view todetermining, in the assumption that the measures against Thai-land would be due to expire, whether such expiry ‘would belikely to lead to a continuation or recurrence of dumpingandinjury’, the followingelements were found to be relevant:
— since, already before any foreseeable expiry, the Thai imports
concerned have continued to be dumped (moreover at ahigher level than the one originally established), it is consid-ered highly unlikely that the expiry of the measures couldresult in, or even coincide with, the disappearance of dump-ing,
— similarly, as regards the injury analysis, it should be noted
that, had the conclusion on cumulation not been reached andtherefore had Thai imports been examined in isolation, theywould still have been found injurious to such an extent (giventhe results of the investigation as to the volume and prices ofsuch imports) that an increase in the level of the applicable
anti-dumpingduty would have been warranted. This finding ,
made in consideration of the existence (and level) of the cur-rent measures, would be strengthened, if anything, in the lightof their possible expiry.
(74)Accordingly, it is considered that, since the persistent injuriousdumpingis such as to make the amendment of the existingmea-sures against Thailand warranted, it follows that the expiry of the
measures would be likely to lead to a continuation of dumping
and injury and that the measures against Thailand should not beallowed to lapse.
H.COMMUNITY INTEREST
(75)In assessingwhether it is in the Community's interest to take or
modify anti-dumpingmeasures in respect of imports of disposa-
ble flint lighters from the countries concerned which have been
dumped and have caused injury to the Community industry con-cerned, the views of all parties involved in the proceedingwereconsidered. This examination was carried out with a view todeterminingwhether compellingreasons existed which wouldmake anti-dumpingmeasures unwarranted.
1997R0423 — EN — 07.03.1997 — 000.001 — 17
▼B
1.Community industry
(76)Unless measures are taken in respect of Mexican and Filipino
imports and the current measures in respect of Thailand amendedin such a way that causes the Mexican, Filipino and Thai lighterprices to increase significantly, it is considered that the Commu-nity industry will have to lower further its prices or will lose mar-
ket share at an increased rate. In both situations, the financial
situation of the Community industry will worsen. As a result,production in the Community will no longer be viable and mighthave to cease, resultingin loss of jobs in both the industry itselfand related sectors.
Also, the revenues required for investment in research and devel-
opment of products in line with lighter safety standard and more
sophisticated production techniques, which are vital in maintain-
ingcompetitiveness in a hig hly competitive sector, will be drasti-cally reduced. Consequently, the Community industry could then,after a relatively short period of sustained losses, do nothingbutwithdraw from production in the Community.
It is therefore justified to give the disposable lighter industry,
which has a longhistory of investment and resultant innovation
in the Community, the chance to survive by removingthe distor-
tion effects of dumpingand thus securingemployment and futureinvestment.
2.Consumer interest
(77)No information relatingto the Community interest issue has been
received from consumer organizations. The disposable lighter isan inexpensive product which, in general, is bought without spe-cial preference. Although differences in prices appear to have adeterminingeffect on consumers' choice between different lig ht-
ers, the absolute level of prices does not seem to have any influ-
ence on the decision to buy or not to buy such a disposable pro-duct. Therefore, a price increase, at the level of the importer andpartly or wholly reflected throughout the distribution chain, willbe likely to have no material impact on the total consumption ofdisposable flint lighters.
It should also be stressed that, given the usual mark up between
the cif import price and the retail price, the lighter distribution
chain is likely to be able to absorb most of the impact on the con-sumer of price increase which would result from anti-dumpingmeasures. Additionally, it should be noted that price increases, ifany, will not have a major impact on the budget of the consumer
due to the low unit price of this item and the very limited amount
spent on it per individual.
3.Conclusion
(78)Havingexamined the various interests involved, it is concluded
that it is in the Community interest to impose anti-dumpingmea-
sures to eliminate the injurious effects of the dumped importsunder consideration and that, conversely, no compellingreasonsexist which would make such measures unwarranted.
Indeed, failure to take action could mean disappearance of pro-
duction in the Community and, consequently, loss of employmentand lack of investment. The price increase and the consequent
relatively little extra cost for the consumer can by no means be
considered to be of the same magnitude as the cost of the totaldisappearance of a Community industry.
I.ANTI-DUMPING MEASURES
1.Injury elimination level
(79)In accordance with the relevant provisions of the basic anti-
dumpingReg ulation, it was examined whether the measuresshould be less than the dumpingmarg ins found, if such lessermeasures would be adequate to remove the injury to the Commu-nity industry. For that purpose, it was considered that the selling
1997R0423 — EN — 07.03.1997 — 000.001 — 18
▼B
prices of each exporter to unrelated importers, adjusted to duty
paid, customer delivered levels (or, where sales were to a relatedimporter, the resale price to the first independent customer)
should be compared to sellingprices established at the same level
of trade and reflectingthe Community producers' cost of produc-tion together with a reasonable amount of profit.
(80)For that purpose, it was considered that only those lighters withan equal or almost equal amount of gas, and therefore a similarnumber of ignitions, should be taken into account. As to theamount of profit considered as reasonable, it was examined
whether the amount of profit used in the previous proceedings
concerning disposable flint lighters, namely a margin of 15 % onturnover, could be expected to be attained in the absence of thedumped imports concerned.
(81)In this respect, it has to be recalled that the dumped imports fromthe People's Republic of China may also have had a negativeimpact on the Community industry duringthe period under
examination. Accordingly, in order to ensure that the remedy
sought in respect of the dumped imports from the three countriesconcerned remains proportionate, it was considered appropriateand not unreasonable that the amount of profit used in the currentinjury elimination level calculations be limited to 10 %. This lim-
itation of the profit margin to 10 % was considered appropriate in
order to take account of the other factor of injury which mayhave affected the situation of the Community industry duringtheperiod currently under examination. It should not, therefore, beinterpreted as entailinga g lobal reconsideration of previous find-ings in respect of the lighter industry's reasonable profitability.
(82)The injury elimination level calculations carried out on the above
basis resulted in the average underselling margins, expressed as a
percentage of the free-at-Community-frontier price, to be higherthan the correspondingdumpingmarg ins in the case of the Thaiexporter Thai Merry, as well as in the case of the Mexican produ-cer JMP (whose products are exported by Scripto Tokai Corp.USA).
For the Filipino cooperatingproducers, the averag e underselling
margins, expressed as a percentage of the free-at-Community-frontier price, found to be lower than the correspondingdumpingmargins, were:
— production by Iwax Philippine Inc., and Iwahori Philippines
Inc. and exports by Iwax Inc. Japan (single margin): 43 %,
— Swedish Match Philippines, Inc.: 17 %.
2.Case of the Thai company Politop
(83)As mentioned above, at the end of the original investigation con-
cerningThailand, the company Politop had an individual anti-
dumpingduty based on its dumpingmarg in (namely 5,8 %)imposed. On the occasion of the current review, this produceralso cooperated but was unable to provide any data on the basisof which new dumpingand injury marg ins could be calculated.Indeed, this producer only exported small quantities to the Com-
munity in 1992 and did not export to the Community any dispo-
sable flint lighters since then.
(84)From the documents examined (notably the company's commer-cial correspondence), it emerged that this situation came about asa result of Politop's refusal to sell at prices below cost. Arguingthat its behaviour had been consistently fair over the past fouryears, Politop claimed that the increased residual duty likely to
be established for Thailand should not apply to its exports to the
Community and requested to be granted a 0 % duty rate, or atleast that the current 5,8 % duty rate be maintained.
(85)In seekingan appropriate solution, it was found that since Politopentirely ceased to export to the Community, the best availableinformation in its case could not be considered to be the residualdumping margin determined during the investigation period.
1997R0423 — EN — 07.03.1997 — 000.001 — 19
▼B
(86)In these circumstances, the best available information appeared
to be Politop's own data from the previous investigation. It was
therefore considered that the maintainingof Politop's currentduty rate (5,8 %) should constitute the most appropriate solutionto its very specific situation.
3.Undertakings
(87)Havingbeen informed of the essential facts and considerations
on the basis of which it was intended to recommend the repealingof the existingmeasures concerningThai imports and the imposi-tion of definitive anti-dumpingduties in respect of imports orig i-
natingin the three countries concerned, one Thai producer, the
sole Mexican producer and the two related Filipino producersoffered undertakings concerning their exports of the product con-cerned to the Community.
After examination of these offers, the Commission considered
the undertakings as acceptable since they would eliminate the
injurious effects of dumpingpursuant to Article 8 (1) of the basic
anti-dumping Regulation. Furthermore, given in particular thetype of sales channels of the exports concerned (which are madeeither to related parties or sole importers in the Community), itwas considered that these undertakings could be monitored effec-tively.
(88)The Commission consulted the Advisory Committee on theacceptance of these undertakings and no objections were raised.The undertakings offered were accepted by Commission Decision
97/167/EC(
1).
4.Individual and residual duties
(89)Notwithstandingthe acceptance of the undertaking s offered by
certain Thai, Mexican and Filipino producers:
— the measures in force in respect of Thailand should be
repealed,
— individual duties should be imposed in respect of imports
from the Thai company Politop (at the rate of 5,8 %, as
explained in recitals 83 to 86) and the Filipino companySwedish Match Philippines, Inc., which did not offer anyundertaking(at the level of the lesser marg in mentioned inrecital 82, namely 17 %),
— residual duties should be imposed on imports of the product
concerned originating in Thailand, the Philippines and Mex-
ico, in order to underpin the undertakings by avoiding their
circumvention.
Given the level of cooperation obtained from the three countries
concerned (close to 100 %), the residual definitive duties shouldbe imposed, for each country, at the level established for thecooperating company with the highest dumping margin, (i.e. on
the basis of the latter company's dumpingmarg in or, where
appropriate, undersellingmarg in). On this basis, the residualduties should be set at 51,9 % in the case of Thailand, 43,0 % inthe case of the Philippines and 27,1 % in the case of Mexico,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EEC) No 3433/91 is hereby amended as follows:
1. at the end of Article 1 (1), ‘and Thailand’ is deleted;
2. paragraph (d) of Article 1 (2) shall be repealed.
(1) See page 54 of this Official Journal.
1997R0423 — EN — 07.03.1997 — 000.001 — 20
▼B
Article 2
1. Definitive anti-dumpingduties are hereby imposed on imports of
gas-fuelled, non-refillable pocket flint lighters falling within CN code
ex 9613 10 00 (Taric code 961310 00*10) originating in Thailand, the
Philippines and Mexico.
2. The rate of the duties, applicable to the net, free-at-Community-
frontier price, before duty, shall be as follows:
(a) 51,9 % for imports originating in Thailand (Taric additional code
8900) with the exception of imports which are produced and sold
for export to the Community by Politop Co., Ltd, Bangkok where
the rate shall be 5,8 % (Taric additional code 8937);
(b) 43,0 % for imports originating in the Philippines (Taric additional
code 8900) with the exception of imports which are produced and
sold for export to the Community by Swedish Match Philippines,Inc., Manila where the rate shall be 13,0 % (Taric additional code8938);
(c) 27,1 % for imports originating in Mexico (Taric additional code
8900).
3. (a) The duties referred to in paragraph 2 (a) shall not apply to gas-
fuelled, non-refillable pocket flint lighters produced and sold forexport to the Community by Thai Merry Co., Ltd, Samutsakorn(Taric additional code 8542).
(b) The duties referred to in paragraph 2 (b) shall not apply to gas-
fuelled, non refillable pocket flint lighters produced by Iwax Phi-lippine, Inc., Rosario, Cavite, or Iwahori Philippines, Inc., Mari-veles, Bataan and sold for export to the Community by them-
selves or by Iwax Inc., Shizuoka, Japan (Taric additional code
8939).
(c) The duties referred to in paragraph 2 (c) shall not apply to gas-
fuelled, non refillable pocket flint lighters produced by JMP
Mexico, SA de CV, Tijuana, and sold for export to the Commu-
nity by Scripto Tokai Corp., Fontana, USA (Taric additionalcode 8940).
4. Unless otherwise specified, the provisions in force concerningcus-
toms duties shall apply.
Article 3
This Regulation shall enter into force on the day following its publica-
tion in the Official Journal of the European Communities .
This Regulation shall be binding in its entirety and directly applicable
in all Member States.▼
M1
▼B