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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 2398/97
of 28 November 1997
imposing a definitive anti-dumping duty on imports of cotton-type bed linen originating in Egypt,
India and Pakistan
(OJ L 332, 4.12.1997, p. 1)
Corrected by:
►C1Corrigendum, OJ L 19, 24.1.1998, p. 83 (2398/97)
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COUNCIL REGULATION (EC)No 2398/97
of 28 November 1997
imposing a definitive anti-dumping duty on imports of cotton-type
bed linen originating in Egypt, India and Pakistan
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 384/96 of 22 December
1995onprotectionagainstdumpedimportsfromcountriesnotmembersof the European Community(
1), and in particular Articles 9(4) and
10(2) thereof,
Having regard to the proposal submitted by the Commission after
consulting the Advisory Committee,
Whereas:
A.PROCEDURE
(1)By Regulation (EC) No 1069/97(2) (hereinafter referred to as
‘the provisional Regulation')the Commission imposed a provi-sional anti-dumping duty on imports into the Community ofcotton-type bed linen falling within CN codes 63022100,63022290, 63023110, 63023190 and 63023290 originatingin Egypt, India and Pakistan.
(2)Following the imposition of the provisional anti-dumping duty,certain interested parties submitted comments in writing. Thoseparties, who so requested, were granted an opportunity to beheard by the Commission. Parties were informed of the essentialfacts and considerations on the basis of which it was intended torecommend the imposition of definitive anti-dumping duties andthe definitive collection, at the level of these duties, of amountssecured by way of provisional duties. They were also granted aperiod within which to make representations subsequent to thisdisclosure.
(3)The oral and written comments submitted by the interestedparties were analysed and, where deemed appropriate, taken intoaccount for the definitive findings.
B.PRODUCT UNDER CONSIDERATION AND LIKE PRODUCT
1.Requests for exclusion from the proceeding
(4)Followingthedisclosureofprovisionalfindings,theCommission
received various requests for exclusion of certain product typesfrom the proceeding:
— certain parties repeated their request for exclusion of ‘seer-
sucker',a type of bed linen produced with the use of chemi-cals,claimingtheretobenomoreproductionofsuchitemsinthe Community,
— some parties repeated the request for exclusion of bleached
bedlinenwhichisintendedforinstitutionaluse(i.e.hospitals,hotels etc.). Moreover, one party argued for the exclusion ofinstitutional dyed bed linen. In support of their requests, theyclaimed that the user institutions require a special quality ofthe product in question, namely products made from fabric ofa particularly heavy weaving construction, which theyclaimed were not produced in the Community,
(1) OJ L 56, 6. 3. 1996, p. 1. Regulation as amended by Regulation (EC) No
2331/96 (OJ L 317, 6. 12. 1996, p. 1).
(2) OJ L 156, 13. 6. 1997, p. 11.
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— a request was also received to exclude items made from
fabric woven on looms operated purely by hand or foot(‘handloom').
(5)On ‘seersucker', since no new arguments were advanced insupport of the request following the imposition of provisionalmeasures, and despite the absence of production of identicalproducts by the Community industry, the request could not beaccepted. It was therefore concluded that this product type issubject to the proceeding as it shares sufficient physical charac-teristics and uses with other types of bed linen to make themcompetitive with each other.
(6)On the request to exclude certain types of bed linen intended forinstitutional use, and in particular to exclude products of aweaving construction above a certain weight threshold, it wasfound that bed linen of a heavier construction was produced inthe Community (notably but not exclusively a specific typeknown as flannel). In addition, no clear dividing line could beestablished between bed linen produced and sold in theCommunity for institutional and private use and the importedtypes: all shared sufficient physical characteristics, functions anduses to be considered like products.
The request to exclude bed linen for institutional use from the
scope of the proceeding could not therefore be accepted and thefindings of the investigation and the conclusions of the Commis-sion as set out in recital 13 of the provisional Regulation areconfirmed.
(7)As regards the request to exclude handloom products, while theuse of different production methods is not in itself a reasonrelevant to the definition of the like product, it was found thathandloom items had physical characteristics different from thoseof other bed linen, notably through a less regular and looserweave. This difference led to a different consumer perception ofhandloom products which was reinforced by the fact thathandloom products are often sold through particular sales chan-nels such as charity shops which are not available to Communityproducers.
Consequentlyitwasconcludedthathandloomproductsshouldbe
excluded from the scope of the proceeding and, therefore, theseproducts should be exempted from the payment of the duties ifaccompaniedbyacertificateofhandloomorigin(seeAnnexIItothis Regulation) issued by the appropriate authorities of theexporting country.
2.Like product
(8)Following the disclosure of provisional findings, certain parties
repeated the claim, already made at the provisional stage, thatthere were such differences between all imported bed linen andall Community-produced bed linen that they could not be consid-eredalikeproductwithinthemeaningofArticle1(4)ofCouncilRegulation (EC) No 384/96 (hereinafter referred to as the ‘basicRegulation').The Commission considered these claims but foundthatforthereasonsalreadysetoutinrecital14oftheprovisionalRegulation they could not be accepted.
3.Conclusion
(9)It follows from the conclusions set out in recital 10 of the
provisional Regulation as modified above with regard tohandloom products that the product under consideration is bedlinen of cotton fibres, pure or mixed with man-made fibres orflax, bleached, dyed or printed. It includes but is not limited tobed sheets, duvet covers and pillow cases.
Bed linen of pure man-made fibres and bed linen where flax is
the dominant fibre is not covered by this proceeding. Bed linen
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made from handloom woven fabric is also not covered by this
proceeding.
Based on the above exclusion and clarifications of the product
scope, bed linen covered by the present proceeding falls withinCN codes ex 63022100, ex 63022290, ex 63023110,ex 63023190 and ex 63023290.
Subject to the above, and in the absence of any further argu-
ments, the conclusions as set out in recitals 10 and 14 of theprovisional Regulation concerning the product definition and thelike product are hereby confirmed.
C.EXPORTING PRODUCERS IN THE COUNTRIES
CONCERNED
1.Requests for status of cooperating parties
(10)It was only after the selection of the samples of exporters and, in
many cases, following the disclosure of the preliminary findingsof the investigation to cooperating parties, that several exportingproducers in the countries concerned made themselves knownand requested the status of cooperating parties.
(11)Given that all these exporting producers either did not makethemselves known or did not provide the information deemednecessary for the investigation within the time limits set in thenotice of initiation(
1), it is considered that the cooperating status
requested should not be granted because to do otherwise wouldconstitute a discrimination against other parties who had decidedto cooperate since the outset of the investigation.
2.New exporters
(12)Following the adoption of provisional measures, a number of
exporters in the countries concerned made themselves known,often at a very advanced stage of the investigation, and requestednew exporter status. Some of them showed to the satisfaction oftheCommissionthattheydidnotexporttheproductconcernedtothe Community during the investigation period, that they startedto export to the Community after this period or that they haveentered into an irrevocable contractual obligation to export asignificant quantity to the Community, and that they were notrelated to any of the exporting producers in the respectiveexporting countries which are subject to the anti-dumping meas-ures on the product concerned. Consequently, those exportingproducers were considered to be new exporters and should begranted the same treatment, in terms of definitive measures, asthe cooperating exporting producers not included in the sample,i.e. an anti-dumping duty calculated in accordance with Article 9(6) of the basic Regulation.
(13)The same treatment should be granted to any new exportingproducer which following the adoption of definitive measuresshows to the satisfaction of the Commission that it fulfils theabovementioned criteria.
D.DUMPING
1.Normal value
(a)Methodology for the construction of normal value
(14)Three Egyptian exporting producers argued that if domestic sales
wereconsideredunrepresentativeforassessingprofit,theyshouldbe considered equally unrepresentative for assessing selling,general and administrative (SG& A) expenses.
(1) OJ C 266, 13. 9. 1996, p. 2.
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In this respect, it should be noted that the fact that some or all ofthe domestic sales of the like product appear to be loss-makingdoes not in itself render the related SG& A expenses inap-propriate to construct normal value if such sales were made insufficient quantities when compared to the sales volume of theproduct under consideration sold for export to the Community.
(b)Cost of production
(15)As already explained in recital 36 of the provisional Regulation,
two Pakistani exporting producers claimed that due to excep-tional circumstances, resulting from civil disorder on a majorscale in Karachi during the investigation period, costs corre-sponding to ‘idle capacity'should not be taken into account inconstructing normal value. Following the imposition of provi-sional measures these companies repeated their claim and resub-mitted their quantification of the idle costs concerned.
In this respect, it should be noted that according to an extract of
the International Accounting Standard No 2 (IAS-2), which oneofthecompaniesconcernedquoted,althoughtheamountoffixedoverheads allocated to each unit of production is not to beincreased as a consequence of low production or idle plant,unallocated overheads are in any event recognised as an expensein the period in which they are incurred. In other words, all costsincurred within a certain period should be fully absorbed withinthe same period by the total cost of production (manufacturingcost and SG& A expenses) irrespective of whether ‘idle capacity'costs are classified as fixed overheads included in the manufac-turing cost or as part of the SG& A expenses. Therefore, theseclaims could not be accepted since the total cost of productionincorporatedintheconstructednormalvalueincludesbothmanu-facturing cost and SG& A expenses.
(16)One Pakistani exporting producer claimed that the cost of initialmaterial (grey cloth) it had reported in the cost of manufacturingincluded certain SG& A expenses. Therefore, when constructingits normal value, the SG& A expenses reported should have beendeducted from the cost of production in order to avoid a doublecounting of SG& A expenses. The Commission, after reviewingthe data of the company, accepted the claim and modified thedumping calculations accordingly.
(c)Selling, general and administrative expenses (SG& A)
(17)One Egyptian exporting producer contested the inclusion of
allegedly exceptional high financing expenses in the constructionof its normal value. It argued that these high financing expenseswere incurred by two state-owned companies on their lossmaking domestic sales of the like product and, therefore, shouldnot be used for calculating constructed normal value for aprivate-owned company, but that a ‘reasonable'amount of SG&A expenses should be established for this purpose instead. It wasfurtherarguedthatthis‘reasonable'amountcouldbebasedontheSG& A expenses of the third state-owned company investigatedwhich had profitable domestic sales of the like product.
In that respect, it has to be mentioned that, where all companies
are operating in free market conditions, the consistent practice ofthe Community institutions has been to include all costs incurredto produce and sell the product concerned on the domesticmarket, including financing expenses, in the construction ofnormal value irrespective of whether these costs are incurred bystate or private-owned companies.
In addition, it is consistent practice when constructing normal
value for companies without domestic sales to use the weightedaverage SG& A expenses of all investigated companies withdomesticsalesofthelikeproduct,asprovidedinArticle2(6)(a)of the basic Regulation. Therefore, for the company in question
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the methodology used and explained in recital 32 of the provi-sional Regulation is confirmed.
(d)Domestic profit margin
(18)All Indian exporting producers contested the use of the actual
profit margin realized by one Indian company on its repres-entative profitable domestic sales in the construction of normalvalue for other Indian companies. They argued that this profitmargin is exceptionally high because, to a great extent, it relatesto domestic sales of branded products and that since export salesalways concerned non-branded products, such domestic sales donot permit a proper comparison within the terms of Article 2 (3)of the basic Regulation. Four of these exporting producers alsoargued that this profit is not calculated by reference to theweighted average profits of other exporters or producers asprovided for in Article 2 (6) (a) of the basic Regulation, butcorresponds to only one exporting producer. It was furtherclaimedinthisrespectthat,inordertoensurethattheamountforprofitsusedisreasonable,theprofitsrealisedonsalesofproductsof the same general category in India should in any event not beexceeded.
It should be noted that the profit margin used in constructing
normal value corresponds to the weighted average profit realizedondomesticsalesofprofitabletypesofbrandedandnon-brandedproducts by the Indian company concerned and that, had thisclaimbeenaccepted,thiswouldhavebeentothedisadvantageofthe producers, the profit margin used being lower than the profitmarginrealizedbythesamecompanysolelyonitsdomesticsalesof non-branded products.
With regard to the use of the profit margin of only one company,
itshouldberecalledthattheinvestigationhasbeenrestrictedtoasample of exporting producers in accordance with Article 17 ofthe basic Regulation and that the vast majority of the cooperatingIndian companies are export oriented companies with nodomestic sales of the like product. The Commission selected forthe sample five Indian exporting producers two of which haddeclared at the time of the selection that they had made domesticsales of the like product. However, as indicated in recital 23 ofthe provisional Regulation, the investigation revealed that onlyone had representative domestic sales of the like product duringthe investigation period. Moreover, the reference in Article 2 (6)(a) of the basic Regulation to a weighted average amount forprofits determined for other exporters or producers, does notexclude that such amount can be determined by reference to aweighted average of transactions and/or product types of a singleexporter or producer. Consequently, it is not considered justifiedto establish the amount for profits in accordance with Article 2(6) (b) or 2 (6) (c) of the basic Regulation, as claimed by theIndian companies concerned.
(19)One Indian exporting producer argued that its domestic profit-abilityshouldhavebeenassessedonlyonthebasisofthosetypesof the product concerned sold both domestically and on theCommunity market.
It should be noted however, that Article 2 (2) of the basic
Regulationprovidesthatthesalesofthelikeproductintendedfordomestic consumption shall normally be used to determinenormal value if such sales volume constitutes 5% or more of thesales volume to the Community of the product under considera-tion.Therefore,alldomesticsalesofthelikeproductintendedfordomestic consumption were, where appropriate, used to establishthe domestic profit margin, whether or not particular producttypes were also exported to the Community.
It follows from the above that the methodology and the findings
as set out in recitals 23 to 36 of the provisional Regulation arehereby confirmed.
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2.Export price
(20)One Pakistani exporting producer which sold part of its exports
to a related importer based in the Community, argued that theexport price for the transactions made through the relatedimporter should not be constructed because all prices charged tothe related importer were at ‘arm’s length'and they are in linewith prices charged to unrelated customers in the Community.Therefore it was argued that the actual export price charged tothe related importer should be considered as reliable and that itshould be used in the dumping calculations.
It is the consistent practice of the Community institutions, where
it appears that the export price is unreliable because of an asso-ciation or a compensatory arrangement between the exporter andthe importer, to construct it in accordance with Article 2 (9) ofthe basic Regulation. In this particular case the investigationrevealed that all subsequent resales by the related importer toindependent buyers were made at a loss. This was considered tobe an indication that the prices charged by the exporter to itsrelated importer are unreliable. Therefore, the methodology usedtodeterminetheexportpriceasexplainedinrecitals37and38ofthe provisional Regulation is confirmed.
3.Comparison
(21)One Indian exporting producer contested the Commission’s
refusal to grant an adjustment for level of trade.
Article2(10)(d)ofthebasicRegulationrequiresthatithastobe
shown that the export price is at a different level of trade fromthe normal value and that the difference has affected pricecomparability, which is demonstrated by consistent and distinctdifferences in functions and prices of the seller for the differentlevels of trade in the domestic market of the exporting country.Therefore, in the absence of any substantiated evidence to thiseffect,theclaimwasrejectedasalreadyexplainedinrecital40ofthe provisional Regulation.
(22)The same Indian company also contested the Commission’srefusal to grant adjustments to normal value for certain sellingexpenses.
The request was provisionally rejected because the adjustments
requested exceeded the expenses incorporated in the constructednormal value.
The company’s renewed request showed the same shortcomings
and could not, therefore, be accepted either.
However, it was finally decided to grant an adjustment limited to
those expenses (e.g. commissions and freight) which could beidentified in the allocation of SG& A expenses as submitted bythe company in its response to the Commission’s questionnaireand which were verified during the investigation and incor-porated in the constructed normal value.
(23)This Indian company further challenged the Commission’srefusal to grant an adjustment to normal value for credit costs.
As explained in recital 44 of the provisional Regulation, this
claim had to be rejected given that the delivery of all goods soldin the domestic market by the company concerned took placeonly after payment. Thus, since the seller did not pass on to thebuyer the use or the possession of the goods in question until thetime of payment, it cannot be argued that there was any creditgranted by the seller.
(24)One Pakistani exporting producer also challenged the Commis-sion’s refusal to grant an adjustment to normal value for creditcosts.Inordertosupportitsargument,itwasrequestedtosubmitadditional information following the imposition of provisionalmeasures.
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Since the information submitted did not contradict but satisfac-torily supplemented the data previously verified by the Commis-sion at the premises of the company concerned, the claim for anadjustment concerning credit costs was accepted and the calcula-tions were revised accordingly.
(25)All Pakistani exporting producers contested the Commission’scalculation of the adjustment for import charges and duties borneby the like product and in particular by certain materials physi-cally incorporated therein, when intended for consumption inPakistan and refunded on export of the product under considera-tion pursuant to the Pakistani legislation. They argued that theamount of the adjustment should be expressed as a percentage ofthe cost of production and that the same percentage should thenbe deducted from the normal value.
The argument neglects the fact that such a percentage calculated
by reference to the cost of production should be applied on theappropriate basis and that the normal value, being the equivalentof a domestic price, cannot be considered as such. Therefore, theargument was not accepted.
(26)One Pakistani company argued that the amount of the adjustmentfor import charges and duties borne by the like product, wasunderestimated in the Commission’s dumping calculations forcertain types of product.
The Commission reviewed the calculations and accepted the
claim where appropriate.
(27)The Pakistani authorities were of the opinion that the duty draw-back adjustment granted to the cooperating exporting producerswasnotsufficient.TheyconcedethattherelevantPakistanilegis-lation mentions only a limited number of imported materials(certain dyes and chemicals) which are eligible for refund if thefinishedproductisexportedandthattheCommissionhasgrantedan adjustment in this respect. However, they argue that, uponproof of export performance, Pakistani exporters also receive arefund for a number of other indirect taxes and duties borne bysales of the like product in the domestic market and that thisrefund should also give entitlement to an adjustment.
In this respect, it should be noted that any adjustment pursuant to
Article 2 (10) of the basic Regulation requires that it is demon-strated that there is a difference in factors which affect pricecomparability. As part of such demonstration pursuant to Article2(10)(b),ithastobeshownthatthecostconcerned,inthiscaseimportchargesorindirecttaxes,hasactuallybeenincurredbytheexporting producer for the product concerned when intended forconsumption in the exporting country and not collected orrefunded in respect of the product exported to the Community.Neither the Pakistani exporting producers nor the Pakistaniauthorities could demonstrate a link between any other indirecttaxes and duties paid and the amounts refunded. In addition, thePakistani authorities could not specify the indirect taxes or dutiesfor which the additional refund claimed was allegedly granted.Therefore, the request was not accepted.
It follows that unless otherwise provided above the conclusions
drawn in recitals 39 to 45 of the provisional Regulation arehereby confirmed.
4.Dumping margins
(a)General methodology
(28)The representatives of the Indian and the Egyptian cooperating
exporting producers, which were not included in the sample and,therefore,werenotinvestigated,arguedthatthedumpingmarginsestablished for investigated state-owned companies should not betaken into account when calculating the dumping margins to beallocated to private-owned companies not investigated.
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As already explained above, the Commission cannot treat differ-
ently state and privately owned companies where all companiesare operating in free market conditions. Therefore, the claimcannot be accepted and the provisions of recitals 46 to 48 of theprovisional Regulation are confirmed.
(b)Dumping margins for companies in the sample
(29)The comparison between the normal value and the export price,
in accordance with the methodology of the provisional Regula-tion and after revisions, where appropriate, following the argu-ments made by interested parties, showed the existence ofdumping in respect of all companies investigated. The definitivedumping margins expressed as a percentage of the CIF importprice at the Community frontier are as follows:
India
Anglo French Textiles 24,7%
The Bombay Dyeing & Manufacturing Co. Ltd 7,7%Nowrosjee Wadia & Sons Ltd 7,7%Madhu Industries Ltd 17,0%Madhu International 17,0%Omkar Exports 14,2%Prakash Cotton Mills Ltd 2,6%
Egypt
Damietta Spinning & Weaving Co. 13,5%
El Nasr Wool and Selected Textiles Co. (STIA) 13,5%Orient Linen & Cotton Co. 13,5%Stephanie Textile 8,7%
Pakistan
Al-AbidSilkMillsLtd 6,7%
AlAbidExport(Pvt)Ltd 6,7%Al-KaramTextileMillsLtd 1,3%( de minimis)
FatehTextileMillsLtd 6,3%GulAhmedTextileMillsLtd 0,1%( de minimis)
ExcelTextileMillsLtd 0,1%( de minimis)
MohammadFarooqTextileMillsLtd 1,8%( de minimis)
(c)Dumping margin for cooperating companies not in the
sample
(30)Cooperatingcompaniesnotselectedinthesample(seerecitals17and 21 of the provisional Regulation and recitals 12 and 13 ofthis Regulation) were allocated the average dumping margin ofthe companies in the sample, weighted on the basis of theirexport turnover to the Community. In accordance with Article 9(6) of the basic Regulation, when calculating this averagedumping margin de minimis margins established have been disre-
garded. Expressed as a percentage of the CIF import price at theCommunity frontier, these definitive dumping margins are asfollows:
India 11,6%
Egypt 13,5%(forstate-ownedcompanies)Egypt 13,0%(forothercompanies)
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Pakistan 6,4%
The companies entitled to the reduced rates are set out in an
Annex to this Regulation.
(d)Dumping margin for non-cooperating companies
(31)For non-cooperating companies a dumping margin was deter-
mined on the basis of the facts available in accordance withArticle 18 of the basic Regulation. Since the level of cooperationwas high, it was considered appropriate to set the dumpingmarginfornon-cooperatingcompaniesineachcountryconcernedat the level of the highest dumping margin established for acompany in each sample because it would constitute a bonus fornon-cooperation to assume that the dumping margin to be allo-cated to exporting producers which did not make themselvesknown is lower than that found for a cooperating exportingproducer.
These definitive dumping margins expressed as a percentage of
the CIF import price at the Community frontier, are thefollowing:
India 24,7%
Egypt 13,5%Pakistan 6,7%.
E.COMMUNITY INDUSTRY
1.Definition of the Community industry
(32)Exporters from all three exporting countries observed that the
complainant Community producers taken to be the Communityindustrymadeupjust34%oftotalCommunityproduction.Theyclaimedthatthisshowedthatamajorityofbedlinenproducersinthe Community did not support the complaint and should there-fore be assumed not to be injured, and that the Communityindustry was not therefore representative of total Communityproduction.
However, in response to the provisional measures only two non-
complainant Community producers, which originally expressedno opinion to the Commission on the complaint, expressed oppo-sitiontotheduties.Thecombinedproductionofthesetwoprodu-cers was less than one-third of the total production of thecomplainants.Throughouttheproceeding,therefore,thecomplai-nants represented considerably more than 50% of the collectiveoutputofthoseproducersexpressingeithersupportfororopposi-tion to the complaint.
(33)Pakistani exporters also claimed that the Commission had notused the correct test in determining whether Community produ-cers which also import bed linen from the countries concernedshould be excluded from the Community industry (recitals 52 to55 of the provisional Regulation). By way of clarification, it isconfirmed that the test used in recital 54 was whether bed linenimported from the countries concerned accounted for 10% of theturnover in bed linen of the companies in question, rather than10% of total company turnover. Under this test it was found andis hereby confirmed that none of the sampled companies retainedin the list of 35 complainants made sufficient imports of theproduct concerned by this proceeding from the countries in ques-tion to be excluded from the definition of the Communityindustry.
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2.Conclusion
(34)In conclusion, the finding that the 35 complainant companies
represent a major proportion of total Community productionwithin the meaning of Article 5 (4) of the basic Regulation andthat they therefore constitute the Community industry within themeaning of Article 4 (1) of the basic Regulation is confirmed.
F.INJURY
1.Cumulative assessment of the effects of the dumped
imports
(35)Pakistani exporters argued that imports from Pakistan should nothave been cumulated with those from India and Egypt for theassessment of injury. In support of this they pointed out thatimports from Pakistan had grown less fast than those from theother two countries, that according to Eurostat the average priceof the imports from Pakistan was higher and had risen while theothers had fallen, and that the dumping margins calculated forPakistan were on average about half those for the other twocountries concerned.
These arguments were examined. It was noted that imports from
Pakistan, while rising less quickly than those from India andEgypt (in particular because of quota restraints), had nonethelessrisen and remained the highest of the three exporting countries.As for the Eurostat data on average prices, it should be remem-bered that this data groups together a wide variety of differentproducts. It was observed among the sampled Pakistani exportersthat their product mix included a greater proportion of highervalue products (e.g. satin and other products from finer cottonyarn) than sampled producers in India and Egypt. It was conse-quently found that the data on average prices was highly influ-enced by differences and changes in product mix and could notjustify differential treatment in the overall analysis of injury.
Finally, the size of dumping margins for a given country,
provided they are more than de minimis, is not a criterion for the
decisionastowhetherornottomakeacumulativeassessmentofthe effects of the dumped imports.
(36)The cumulative assessment made in the provisional Regulation istherefore confirmed under the terms of Article 3 (4) of the basicRegulation.
2.Prices of the dumped imports
(37)Exporters and importers claimed that the Commission’s analysis
of the degree to which the imports concerned undercut the pricesof the sampled Community producers, and the consequent calcu-lation of injury margins, were flawed, for various reasons:
— firstly because the criteria for selection of the ‘reference
products',on which the analysis was based, were claimed notto have been explained,
— secondly, because the reference products accounted, they
claimed, in some cases for only a small proportion ofCommunity sales of the sampled exporters in the countriesconcerned,allegedlyindicatingalackofcompetitionbetweenimported and Community products and a lack of reliability ofthe analysis,
— thirdly, because it was claimed that in making the price
comparisons inadequate account had been taken of the differ-ences in sales channels between Community producers andexporters from the countries concerned,
— fourthly, because there were claimed to be quality differences
which should be taken into account,
— fifthly, because it was claimed that products imported and
Community products falling within the same referenceproduct definition could not be compared, there being other
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criteria besides size, weaving construction and finish bywhich the products differed or because the range of construc-tions considered to be comparable was too wide.
(38)Onthefirstpoint,itisconfirmedthatthereferenceproductswereselected, for each market studied, following consultation with therelevant national producers’ association and also using informa-tion available to the Commission. Furthermore, it is confirmedthat the investigation showed that the sizes, weaving construc-tions and finishes chosen as reference products were indeedamong the most prevalent in the markets concerned. Finally, atno time did the exporters or their representatives define otherproducts which in their view would have been more appropriatefor an analysis of undercutting.
On the second point, it was noted that the wide variety of bed
linen products limited the proportion of each exporter’s saleswhich could accurately be compared with sales by the sampledCommunity producers. Given the Commission’s intention toconductaccuratecomparisons(comparingpricesonlyofproductsmatching in size, weaving construction and finish) and the limitsto the number of different such products for which accurate priceinformation could be collected in the time available, it is unsur-prising that the proportion of each exporter’s sales in theCommunity which could reasonably be compared with the prod-ucts of the sampled Community producers was in some excep-tional cases as low as 5%. This was particularly the case ofexporters concentrating on simple, high volume products (amarket segment from which the Community industry is nowlargely excluded by import penetration). This invalidated neitherthefindingthatthereweresignificantmarketsegmentswherethedumped imports competed with Community production nor themethod adopted for assessing undercutting, since the quantitiesoverall were in all cases considered sufficiently representativeand in several cases exceeded 30%. In any event, it should benoted that low export prices in one market segment, given thehigh interchangeability of the product concerned, will also havenegative effects on prices in adjacent segments.
On the third point, the exporters substantiated their claim with
evidence that the total mark-up from the CIF export price to theultimate retail price was much greater than the level of tradeadjustment made by the Commission. The Commission consid-ered however that this was not relevant information since priceswere not being compared at the level of sale to the ultimateconsumer but at the level of sale to the first independentcustomer. The exporters’ claim is therefore rejected.
On the fourth point, the claim for adjustment for quality differ-
ences was based on average weights per square metre of theCommunityandimportedproducts.Sincehowevertheweightpersquare metre of fabric is a function of its weaving construction,and since products were compared only when they correspondedin terms of this construction, there was no justification for suchan adjustment and the claim is therefore rejected.
On the fifth point, the Commission considered the arguments but
could not accept it. This conclusion was reached bearing in mindthe large number of reference products allowing a detailedanalysisandthefactthatremainingdifferenceswithineachrefer-ence product definition were compensated by a price comparisoncarried out on an average per kilo basis.
(39)The finding in recital 79 of the provisional Regulation that theimported products undercut the products of the sampledCommunity producers, and the findings of the level of the under-cutting, are therefore confirmed.
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3.Situation of the Community industry
(40)Exporters from all the exporting countries claimed that the
Commission’s analysis of injury was defective in that it referredto the significant decline in total Community production of bedlinen in assessing the situation of the Community industry. Theyclaimed in particular that information concerning companies notincludedinthedefinitionoftheCommunityindustryorwhichnolonger produce bed linen cannot be used to construe a finding ofmaterial injury.
These claims were examined carefully. It should however be
remarkedthattheprincipalbasisforthefindingofmaterialinjurywas the reduced profitability and price suppression of theCommunity industry as observed among the sampled companies.
(41)In the assessment of injury pursuant to Article 3 of the basicRegulation, the Community institutions have to assess theeconomic situation of the Community industry. This assessmentusually covers the analysis of a time period of four to five yearsas in the present case (‘assessment period').Such an assessmentis commonly based on an analysis of the complaining industryand not necessarily on companies accounting for the totality ofCommunity production on the ground that the situation of amajor proportion of the Community production is representativeforitstotality.Suchanassessment,however,alsohastotakeintoaccount the structure and the nature of the industry under consid-eration. In the present case this industry is characterized by ahigh number of operators, in many cases small- and medium-sized companies, and by the fact that it is a sector with relativelylow barriers to exit. The latter is mainly due to the fact thatmachinery can be sold or used for other products relativelysimply. This has the effect that material injury is likely to mani-fest itself through the exit of economic operators within theassessment period.
Consequently,tolimittheassessmentofinjuryonlytocompanies
which are still operational at the end of the assessment period(i.e. at the time of the lodging of the complaint) and thus ableactively to support a complaint would mean that any injurycausedtocompanieswhichhavecloseddownbeforethispointintime would go unconsidered in the analysis. Furthermore, itshould be noted that this distortion could even be aggravated asthe surviving complaining companies of the Community industrymay have benefited, possibly only temporarily, from the disap-pearance of other companies, causing their positive developmentto be overestimated.
In the present case, it should be noted that 29 companies of the
bedlinenindustryhavecloseddownorceasedproduction:thatisto say, that a substantial number of companies have ceasedoperation. Furthermore, given the substantial price undercuttingestablished, the strong increase in the volumes of the importsconcerned and their consequent rise in market share, any rela-tively positive development of the complaining producers mustbe seen as threatened in the absence of anti-dumping measures.
4.Conclusion
(42)The finding of material injury, within the meaning of Article 3
(1) of the basic Regulation, is therefore confirmed.
G.CAUSAL LINK
(43)Exporters from all three countries concerned claimed that any
material injury could be ascribed to the fall in consumption of7% between 1992 and the investigation period. However, asnoted in recital 105 of the provisional Regulation, the total fall insalesbyallCommunityproducerssignificantlyexceededthetotalfall in consumption. As to the exporters’ argument that dataconcerning the totality of Community production was not rele-vant to the determination of whether the dumped imports caused
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material injury, this suggestion is rejected on the grounds set out
in recitals 40 and 41 of this Regulation. The finding is thereforeconfirmed that the fall in consumption does not contradict thefinding that the dumped imports, taken in isolation, have causedmaterial injury to the Community industry. The findingsconcerning the causal links between the dumped imports and thematerial injury suffered by the Community industry as set out inrecitals 109 to 111 of the provisional Regulation are thereforeconfirmed.
H.COMMUNITY INTEREST
1.Interests of consumers
(44)Certainimportersclaimedthattheimpactonconsumerswouldbe
greater than that assessed in the provisional Regulation. In itsprovisional findings (recital 124 of the provisional Regulation)the Commission had noted that the imports concerned by theproceeding were sold to the ultimate consumer at prices verymuchhigherthanthepriceattheCommunityfrontierandconsid-ered that the duty would therefore represent a smaller proportionof the ultimate price to the consumer than the ad valorem
percentage levied. Since subsequent costs (e.g. of transport,storageandretailing)wouldnotbeincreasedbytheimpositionofa duty, the impact on consumers of the proposed measures wasevaluated as minor.
(45)Certain parties challenged these arguments. Some claimed thatretailers set prices to the consumer at a set percentage mark-upfromtheirpurchaseprice,sothatthepricetotheconsumerwouldrise by the same percentage as the duty imposed. Some retailerseven claimed that the percentage increase in the price to theconsumer could be higher than the duty level: they claimed thatproductsweresoldinparticularpricebracketsandthatifthedutyincreased the price of a given product above one bracket, itwould be priced in the next bracket, an increase which might beas high as 20%.
TheCommissionconsideredthattheseclaimsdidnotconstitutea
reason to depart from the provisional findings. It was concludedthat pressure of competition between retailers should ensure thatprice increases to consumers would not exceed the cost increaseattributable directly to the duty. The view reached by theCommission at the provisional stage that this duty would haveonly a minor impact on consumers, especially when comparedwith other factors such as currency fluctuations, is thereforeconfirmed. It should be noted in this context that this conclusionwas not subsequently contested or commented on by any organ-ization representing consumers following the provisional meas-ures.
2.Interests of other users
(46)Following the imposition of provisional duties, certain parties
came forward claiming that the duties imposed would have asevere negative effect on their businesses. These were, in partic-ular,companiesinvolvedintherentaloflinentohotelsandotherinstitutions. An association representing such users had comeforward before provisional measures and had been invited by theCommission to supply relevant information but had not done so.
The parties coming forward after the imposition of provisional
duties were similarly asked to provide relevant information suchas the proportion of their costs represented by purchases of bedlinen but none did so within the time limits specified in theprovisionalRegulation.Someofthemsoughtexclusionofcertaintypes of bed linen from the scope of the current proceeding (seerecitals 4 and 6 above). In so doing they indicated that the typesofbedlinenusedwerethosecapableofmultipleuseandfrequentindustrial washing. The Commission therefore took the view thatwhile these businesses would suffer some impact from the impo-
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sition of measures, the original costs of purchasing the bed linen
concerned would be minor when compared with the continuingservice costs of laundry, collection and delivery. The claimsthereforegavenocompellingreasonwhymeasuresshouldnotbeimposed.
I.ANTI-DUMPING MEASURES
1.Definitive duties
(47)Injury margins remain above the level of the dumping margins in
all cases. Therefore a definitive anti-dumping duty should beimposedatthelevelofthedumpingmarginssetoutinrecitals29to 31 above, with the exception of companies with de minimis
dumping margins for which no duty should be imposed.
2.Collection of provisional duties
(48)The magnitude of the dumping margins found for the exporting
producers and the seriousness of injury caused to the Communityindustry would normally justify the definitive collection of theprovisional duties up to the level of the definitive duties.
Someexportersandimportersconcernedarguedhoweverthatthe
provisional Regulation was not imposed within the period speci-fied in the last sentence of Article 7 (1) of the basic Regulation.In the light of the uncertainty which has arisen as to whether,when judged by reference to the provisions of Council Regula-tion (EEC, Euratom) No 1182/71 of 3 June 1971 determining therules applicable to periods, dates and time limits(
1), the deadline
was met, the Council considers that in order to avoid legaluncertainty, the provisional duties should not be definitivelycollected.
3.Certification of handloom items
(49)In order to benefit from the exemption for handloom products
referred to in recital 7, a certificate of handloom origin isrequired. The certificate should be in the form attached in AnnexII and it should be issued by the competent authorities of thecountry of origin. The certificate provided for in Article 3 ofCouncil Regulation (EEC) No 3030/93 of 12 October 1993 oncommon rules for imports of certain textile products from thirdcountries(
2) should also be regarded as adequate for the granting
of the exemption.
(50)The Commission will closely monitor handloom bed linenimports from the countries concerned and if the circumstances sorequire will take all the appropriate measures.
4.Future requests for new exporter treatment
(51)Since sampling has been used in the investigation, a new expor-
ters’ review pursuant to Article 11 (4) of the basic Regulationwith the objective of determining individual dumping marginscannot be initiated in this proceeding. However, as alreadyexplainedinrecitals12and13,inordertoensureequaltreatmentbetweenanygenuinenewexportingproducerandthecooperatingcompanies not included in the sample, it is considered that provi-sion should be made for the weighted average duty imposed onthe latter companies to be applied to any new exporting produ-cers which would otherwise be entitled to a review pursuant toArticle 11 (4) of the basic Regulation,
(1) OJ L 124, 8. 6. 1971, p. 1.
(2) OJ L 275, 8. 11. 1993, p. 1. Regulation as last amended by Regulation
(EC) No 824/97 (OJ L 119, 8. 5. 1997, p. 1).
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CNcode Tariccode
Country Rateofduty Taricadditionalcode
Country Rateofduty Taricadditionalcode
Country Manufacturer Rateofduty Taricadditionalcode
Country Manufacturer Rateofduty TaricadditionalcodeHAS ADOPTED THIS REGULATION:
Article 1
1. A definitive anti-dumping duty is hereby imposed on imports of
bed linen of cotton fibres, pure or mixed with man-made fibres or flax(flax not being the dominant fibre), bleached, dyed or printed origin-ating in India, Pakistan and Egypt, not covered by the provisions ofArticle 2 and falling within the following CN codes:
ex 63022100 63022100*81
63022100*89
ex 63022290 63022290*19
ex 63023110 63023110*90
ex 63023190 63023190*90
ex 63023290 63023290*19
2. Subject to paragraphs 3 and 4, the rates of the definitive anti-dumping duty applicable to the net, free-at-Community-frontier price,before duty, shall be as follows for products originating in:
Egypt 13,5% 8900
India 24,7% 8900
Pakistan 6,7% 8900
3. Productsmanufacturedandsoldforexportbytheexportingprodu-cers listed in Annex I, shall be subject to the following anti-dumpingduty rates:
Egypt 13,0% 8041
India 11,6% 8042
Pakistan 6,4% 8043
4. Productsmanufacturedandsoldforexportbythecompanieslistedbelow shall be subject to the following anti-dumping duty rates:
India AngloFrenchTextiles 24,7% 8044
TheBombayDyeing&Manufac-
turingCo.Ltd7,7% 8045
NowrosjeeWadia&SonsLtd 7,7% 8045
MadhuIndustriesLtd 17,0% 8046
MadhuInternational 17,0% 8046
OmkarExports 14,2% 8047
PrakashCottonMillsLtd 2,6% 8048
Egypt StephanieTextile 8,7% 8049
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Country Manufacturer Rateofduty Taricadditionalcode
Pakistan Al-AbidSilkMillsLtd 6,7% 8050
Al-AbidExport(Pvt)Ltd 6,7% 8050
Al-KaramTextileMillsLtd 0,0% 8051
FatehTextileMillsLtd 6,3% 8052
MohammadFarooqTextileMills
Ltd0,0% 8051
GulAhmedTextileMillsLtd 0,0% 8051
ExcelTextileMillsLtd 0,0% 8051
5. Unless otherwise specified, the provisions in force concerning
customs duties shall apply.
Article 2
1. Products classified under the CN codes mentioned in Article 1 (1)
and made of fabrics woven on looms operated exclusively by hand orfoot are exempted from the duty imposed in Article 1 (Taric codes63022100*21, 63022100*29, 63022290*11, 63023110*10,63023190*10, 63023290*11).
2. The exemption is granted only to products accompanied on their
release for free circulation in the Community by either
(i) a certificate from the competent authorities of the country of origin
which conforms to the model attached as Annex II; or
(ii) a certificate issued pursuant to Article 3 of Regulation (EEC) No
3030/93.
3. Certificatesissuedpursuanttoparagraph2(i)shallonlybevalidif
thecountriesoforiginhaveinformedtheCommissionofthenamesandaddresses of the governmental authorities situated in their territorywhich are empowered to issue these certificates, and have sent it speci-mens of stamps used by those authorities and the names and addressesof the relevant governmental authorities responsible for the control ofthe certificates. The stamps shall be valid as from the date of receipt bythe Commission of the specimens.
4. Certificates issued pursuant to paragraph 2 shall only be valid if
presented with options (a) and (c) in box 11 deleted and if they certifythat the products concerned fulfil the description in option (b).
5. TheappropriateprovisionsimplementingtheCommunityCustoms
Code, and notably the provisions concerning administrative cooperationcontained in Article 93 et seqof Commission Regulation (EEC) No
2454/93 of 2 July 1993 laying down provisions for the implementationof Council Regulation (EEC) No 2913/92 establishing the CommunityCustoms Code(
1), shall apply mutatis mutandis .
Article 3
Where any new exporting producer from the countries concerned
provides sufficient evidence to the Commission that
— itdidnotexporttotheCommunitytheproductsdescribedinArticle
1 (1) during the investigation period (1 July 1995 to 30 June 1996),
— it is not related to any of the exporters or producers in the exporting
country which are subject to the anti-dumping measures imposed bythis Regulation,
— it has actually exported to the Community the products concerned
after the investigation period on which the measures are based, or it
(1) OJ L 253, 11. 10. 1993, p. 1. Regulation as last amended by Regulation
(EC) No 89/97 (OJ L 17, 21. 1. 1997, p. 28).
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has entered into an irrevocable contractual obligation to export asignificant quantity to the Community,
then the Council, acting by simple majority on a proposal submitted by
the Commission after consulting the Advisory Committee, may amendArticle1(3)byaddingthatnewexportingproducertothelistinAnnexI.
Article 4
Amounts secured by way of the provisional anti-dumping duty imposed
by Regulation (EC) No 1069/97 shall be released.
Article 5
This Regulation shall enter into force on the day following its publica-
tion in the Official Journal of the European Communities .
ThisRegulationshallbebindinginitsentiretyanddirectlyapplicablein
all Member States.
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ANNEX I
EGYPT
AMC Arab Metals Co., Cairo
Dantex Ltd, CairoEgyptex, CairoEl Naggar Egyptian Co. For Furniture, ElmahallaNile Tex, AlexandriaWintex-Wahab International Textiles Ltd, CairoZahret El Mehalla for Weaving, Mehalla El Kubra — El-Seka El-Wosta
INDIA
A. Shashikant & Co., Mumbai (Bombay)
Ajit Impex, Mumbai (Bombay)Akai Impex Ltd, Mumbai (Bombay)Alps Industries Ltd, GhaziabadAmitara Fabrics Pvt. Ltd, Mumbai (Bombay)Anunay Fab. Pvt. Ltd, AhmedabadB.X. International, Mumbai (Bombay)Badridass Gauridatt Pvt. Ltd, Mumbai (Bombay)Brijmohan Purusottamdas, Mumbai (Bombay)Bünts Exports Pvt. Ltd, Mumbai (Bombay)Chhaganlal Kasturchand & Co. Ltd, Mumbai (Bombay)Classic Connections, Mumbai (Bombay)Concepts International India Pvt. Ltd, GurgaonCotfab Exports, Mumbai (Bombay)Country House, New DelhiDeepak Traders, Mumbai (Bombay)Dhanalakshmi Weaving Works, CannanoreDivya Textiles, Mumbai (Bombay)Dyna-lmpex Pvt. Ltd, Mumbai (Bombay)Elite Exports, Mumbai (Bombay)Emperor Trading Company, TirupurEncore Themes, New DelhiGovindji Trikamdas & Co., Mumbai (Bombay)Hindustan Textiles, CannanoreIbats, New DelhiIncotex, Mumbai (Bombay)Indo Euro Textiles Pvt. Ltd, New DelhiIndo Export Corporation, New DelhiInternational Services, Chennai (Madras)Intex Exports, Mumbai (Bombay)Invitation Apparels Pvt. Ltd, Mumbai (Bombay)Jindal India, Mumbai (Bombay)Jindal Worldwide Ltd, AhmedabadK. Overseas, New DelhiKanodia Fabrics (International), Mumbai (Bombay)Kaushalya Export, AhmedabadKitu Bhandari Pvt. Ltd, New DelhiKothari Industrial Corporation Ltd, Chennai (Madras)Lakshmi Apparels and Wovens Limited, CoimbatoreMahalaxmi Exports, AhmedabadMaritex Exports, Mumbai (Bombay)
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Marwaha Exports, New Delhi
Milano International (India) Pvt. Ltd, Chennai (Madras)Minar Exports, Mumbai (Bombay)Mridul Enterprises, New DelhiNiaz International, FarrukhabadP.J. Exports, Mumbai (Bombay)Patodia Syntex Ltd, Mumbai (Bombay)Pattex Exports, Mumbai (Bombay)Prem Textiles, IndorePunch Exporters, Mumbai (Bombay)Raghuvir Exim Ltd, AhmedabadRajka Designs Pvt. Ltd, AhmedabadSanna Inttex, Mumbai (Bombay)Santex Exports, Mumbai (Bombay)S.D. Enterprises, Mumbai (Bombay)Shetty Garments Pvt. Ltd, Mumbai (Bombay)Shivani Exports, Mumbai (Bombay)Shorewala Exim Int’l, New DelhiShrijee Enterprises, Mumbai (Bombay)Shruti Designs Pvt. Ltd, Mumbai (Bombay)Sohanlal Balkrishna Export, Mumbai (Bombay)Southern Sales & Services, BangaloreStandard Industries Ltd, Mumbai (Bombay)Starline Exports, Mumbai (Bombay)Sumangalam Exports Pvt. Ltd, Mumbai (Bombay)Sunil Impex, Mumbai (Bombay)Sunil Silk Mills, Mumbai (Bombay)Sunny Made Ups, Mumbai (Bombay)Suresh & Co., Mumbai (Bombay)Surya International, PanipatSyndicate Impex, AhmedabadSyntex Corporation Ltd, Mumbai (Bombay)Tata Exports Limited, Mumbai (Bombay)Texcellence Overseas, Mumbai (Bombay)The Hindoostan Spg. & Wvg. Mills Ltd, Mumbai (Bombay)The Ruby Mills Limited, Mumbai (Bombay)Trend Setters, Mumbai (Bombay)Trend Setters K.F.T.Z., Mumbai (Bombay)Vepar Private Limited, AhmedabadVigneshwara Exports Pvt. Ltd, Mumbai (Bombay)Wooltop Weaves, Chennai (Madras)
PAKISTAN
Adamjees Impex International, Karachi
Afroze Textile Industries (Private) Ltd, KarachiAmer Fabrics Limited, LahoreAnjum Textile Mills (Private) Ltd, FaisalabadArzoo International (Pvt.) Ltd, FaisalabadArzoo Textile Mills Ltd, FaisalabadAsco International (Pvt.) Ltd, KarachiAziz Sons, KarachiB.I.L. Exporters, KarachiBe Be Jan Pakistan (Pvt.) Ltd, FaisalabadBela Textiles Limited, Karachi
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Dyer Textile & Printing Mills (Pvt.) Ltd, Karachi
Eksons Sales Organization, KarachiElahi Enterprises Ltd, LahoreElasta Amtex Industries (Pvt.) Ltd, KarachiFairdeal Textiles (Pvt.) Ltd, KarachiFaisal Industries, KarachiFashion Knit Industries, KarachiGohar Enterprises, FaisalabadGohar International (Pvt.) Ltd, FaisalabadH.A. Industries (Private) Ltd, FaisalabadHome Furnishings Ltd, KarachiKam International, KarachiKausar Textile Industries (Pty) Ltd, FaisalabadKohinoor Textile Mills Ltd, RawalpindiLatif Int’l (Pvt.) Ltd, FaisalabadLiberty Mills Limited, KarachiLinex International (Pvt.) Ltd, KarachiLotus Textile Industries Limited, KarachiLucky Impex, KarachiLucky Tex, KarachiLucky Textile Mills, KarachiM.F.M.Y. Industries Ltd, KarachiM.R. Export (Private) Ltd, LahoreMukaty Corporation, KarachiNadia Textile International (Pvt.) Ltd, LahoreNakshbandi Industries Limited, Karachi
▼
C1
Nash Textiles, Karachi
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Nina Industries Ltd, KarachiNishat Mills Limited, KarachiNishitex Enterprises, KarachiNu-tex (Pvt.) Ltd, KarachiParsons Industries (Pvt.) Ltd, KarachiS.P.R.L. Rehman Brothers, LahoreSas Texexport (Pvt.) Ltd, KarachiShabbir Associates, KarachiSharif Textile Industries (Pvt.) Ltd, FaisalabadSitara Textile Industries (Pvt.) Ltd, FaisalabadSyncotex Sa Agencies, KarachiThe Crescent Textile Mills Limited, FaisalabadToday’s Sportswear Inc., KarachiTowellers Limited, KarachiUnibro Industries Limited, KarachiUnion Exports (Pvt.) Ltd, KarachiZN Textiles (Pvt.) Ltd, Faisalabad
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ANNEX II