Proposal for a COUNCIL REGULATION (EEC) imposing a definitive anti-dumping duty on imports of gas-fuelled, non-refiliable pocket flint lighters originating in Japan, the People' s Republic of China, the Republic of Korea and Thailand and definitively collecting the provisional anti-dumping duty
Date: 1991-10-28
Institutions: European Commission
Subjects: Far East, Thailand, anti-dumping duty, non-durable goods, tobacco industry

COMVIISSION  OF THE EUROFEAN  COMVIUNITIES 

C0M(91) 419  final 

Brussels, 28 October  1991 

Proposal  for a 

COUNCIL  REGULATION  (EEfn 

Imposing a definitive ant I-dumping duty on 

Imports of gas fuelled, non refI liable pocket 

flint  lighters originating  In Japan, 

the People's Republic of China, 

the Republic of Korea and Thailand 

and definitively  collecting the 

provisional ant I-dumping duty 

(presented  by  the Commission) 

i-

E X P L A N A T O RY  M E M O R A N D UM 

(1)  Commission  Regulation  (EEC)  No  1386/91<1)  imposed  a  provisional 
anti-dumping  duty on  imports of gas fuelled, non refiliable pocket 
flint  lighters  originating  in  Japan,  the  People's  Republic  of 
China, the Republic of Korea  and Thailand. 

(2)  Council  Regulation  (EEC)  No  2832/91<2>  extended  this  duty  for  a 
period  of  two  months.  The  provisional  duty  is  therefore  due  to 
expire on 29 November  1991. 

(3)  The Japanese, Chinese and Thai  exporters  together  with  a number  of 
importers,  requested  and  were  granted  hearings  and  made  their 
views  known  in writing.  The  Commission  considered  all  the  views 
put  to  it before drawing  its final  conclusions. 

(4)  The Thai  producer  and exporter  Thai  Merry Co. Ltd., provided  fresh 
evidence concerning  the depreciation amount  used  by  the  Commission 
for  the preliminary  determination of normal  value.  In view of  this 
evidence  a  new  dumping  calculation  concerning  Thai  Merry  Co. Ltd 
has been done. Consequently, the dumping  margin  as a percentage of 
CIF  value,  with  regard  to  this  company,  has  been  modified  to 
14.1%. 

Given  the fact  that Thailand  has been used  as the analogue  country 
for  calculating  normal  value  for  China,  the  dumping  margin  for 
China also required  to be modified and  is now 16.9%. 

(5)  In  the  light  of  the  above,  the  Commission  confirmed  its 
provisional  conclusions  to the effect  that  lighters originating  in 
Japan,  the  People's  Republic  of  China,  the  Republic  of  Korea  and 
Thailand  were  being  dumped  in  the  Community  and  were  causing 
material  injury  to Community  production,  and  concluded  that  it  is 
in  the  Community's  interest  to  take  protective  measures  in  the 
form  of  a  definitive  anti-dumping  duty  and  to  collect  the 
provisional  duty definitively  at  the duty  rate definively  imposed. 

(1)  O.J. No L 133, 28.05.1991, p. 20 
(2)  O.J. No L 272, 28.09.1991, p.  1 

-  2 -

(6)  One of  the  two Thai  exporters, Thai  Merry  Co. Ltd,  has offered  an 
undertaking  which  is considered  acceptable.  The  undertaking  will 
increase  the  price  of  the  products  In  question  by  a  level 
sufficient  to  remove  the  dumping  established  by  the  Commission. 
Following  consultations  within  the  Advisory  Committee  one  Member 
State  raised  objections  with  regard  to  the  acceptance  of  the 
undertaking.  According  to  Articles  9  para.  1  and  10  para.  1 of 
Regulation  (EEC)  No  2423/88,  the  Commission  submitted  to  the 
Council  a report  on  the  results of  the consul tat ion  together  with 
a  proposal  that  the  undertaking  be  accepted.  The  decision 
accepting  the  undertaking  shall  be  adopted  if, within  one  month, 
the Council  has not decided otherwise. 

(7)  In  accordance  with  Article  12  of  Council  Regulation  (EEC)  No 
2423/88  the Commission  therefore proposes  that  the Council  impose 
a  definitive  ant I-dumping  duty  on  imports  of  gas  fuelled,  non 
refiliable  pocket  flint  lighters  ©rtglnatfng  in  Japan,  the 
People's  Republic  of  China,  the  Republic  of  Korea  and  Thailand 
(with  the exception of  Thai  Merry  Co.  ltd.) and  decide  to collect 
the  provisional  anti-dumping  duty  to  the  extent  of  the  amount  of 
the definitive duty  imposed. 

(8)  The  Commission  intends,  with  a  reserve  of  the  results  of  the 
procedure mentioned under  point  (5) above, to publish  the decision 
accepting  the  undertaking  from  the  Thai  exporter  Thai  Merry  Co. 
Ltd. at  the same  time as the Council  Regulation. 

- ?-

Proposal  for a 

C O U NC  IL  R E G U L A T I ON 

( E EC  )  N * 

OF 

imposing a definitive ant I-dumping duty on 

Imports of gas fuelled, non refI liable pocket 

flint  lighters originating  In Japan, 

the People's Republic of China, 

the Republic of Korea and Thailand 

and definitively collecting the 

provisional antI-dumping duty 

THE COUNCIL OF THE EUROPEAN COMMUNITIES, 

Having  regard  to  the  Treaty  establishing  the  European  Economic 

Community, 

Having regard to Council Regulation (EEC) No 2423/88 of 11 July 1988 on 

protection  against  dumped  or  subsidized  imports  from  countries  not 

members  of  the  European  Economic  Commun!tyC),  and  in  particular 

Article 12 thereof, 

Having  regard  to  the  proposal  from  the  Commission  submitted  after 

consultation  within  the Advisory  Committee  as provided  for  under  the 

above Régulât ion, 

(1) O.J. No L 209, 02.08.1988, p.  1 

~h~ 

Whereas: 

A.  P R O V I S I O N AL  M E A S U R ES 

(1)  The  Commission  by  Regulation  (EEC)  No  1386/91(2>,  Imposed  a 

provisional  anti-dumping  duty on  Imports  into the Community of gas 

fuelled non-refiIlable pocket  flint  lighters (hereinafter  referred 

to  as  lighters) originating  In  Japan,  the  People's  Republic  of 

China,  the  Republic  of  Korea  and  Thailand  and  falling  within  CN 

code  ex  9613  10 00  (TARIC code  : 9613 ta Otï *10).  The Council  by 

Regulation  (EEC)  No  2832/91(3)  extended  this  duty  for  a  period 

not exceeding  two months. 

B.  S U B S E Q U E NT  P R O C E D U R E 

(2)  Following the  imposition of  the provisional  ant I-dumping duty, the 

interested parties who so requested were granted an opportunity  to 

be  heard  by  the  Commission.  They  also  made  written  submissions 

mak i ng known their vIews on  t he fInd ings. 

(3)  Parties  were  informed  in  writing  of  the  essential  facts  and 

considerations on  the basis of which  it was  intended to recommend 

the  Imposition of  definitive duties and  the definitive collection 

of  amounts  secured  by  way  of  a  provisional  d&ty.  They  were  also 

granted  a  period  within  which  to make  representations  subsequent 

to the disclosure. 

(4)  The  oral  and  written  comments  submitted  by  the  parties  were 

considered  and,  where  appropriate,  the  Commission  findings  were 

modified  to take account of  them. 

(2) O.J. No L 133, 28.05.1991, p. 20 

(3) O.J. No L 272, 28.09.1991, p. 1 

C.  P R O D U CT 

(5)  A number of exporters and one importer  repeated  the arguments put 

forward  in  the  administrative  procedure  before  the  provisional 

measures  that  the Community  producers'  lighters and the  imported 

lighters  are not  like  products,  since  certain  of  the  Community 

models produce more  ignitions. 

The  Council,  however, confirms the Commission  conclusions on this 

point, outlined  in recital  (13) of Regulation  (EEC) No 1386/91, on 

which no new evidence was submitted. 

The  Council,  therefore,  confirms  that  the  lighters  produced and 

sold  by the Community  manufacturers,  form one single  category of 

product  and  constitute  a  product  alike  in  all  respects  to the 

product  imported  from  Japan, the People's  Republic  of China, the 

Republic of Korea and Thailand within the meaning of Article 2(12) 

of Regulation  (EEC) No 2423/88. 

D.  D U M P I NG 

(6)  The Thai  producer and exporter  Thai  Merry Co. Ltd., provided  fresh 

evidence concerning the depreciation amount used by the Commission 

for the preliminary  determination of normal  value. In view of this 

evidence  a new dumping  calculation  concerning  Thai  Merry  Co. Ltd 

has been done. Consequently, the dumping margin as a percentage of 

cif  value,  with  regard  to  this  company,  has  been  modified  to 

14.14%. 

(7)  Given the fact  that Thailand has been used as the analogue country 

for calculating normal  value for China, the dumping margin for the 

People's Republic of China aiso required to be modified and is now 

16.94%. 

-6-

(8)  A  Chinese  exporter,  Gladstrong  Investments  Ltd.  which  did  not 

export  to  the  Community  during  the  reference  period  requested  to 

be excluded  from  the application of  the duty. Since  the  Commission 

was not  in a position  to make  a determination with  regard  to  this 

exporter,  this  request  could  not  be  accepted  by  the  Council. 

Nevertheless,  the  Council  notes  that  the  Commission  is  ready  to 

initiate without  delay  a review whenever  the exporting company  can 

show  to  the  Commission,  and  supply  to  that  effect  sufficient 

evidence  that  It did  not  export  during  the  Investigation  period, 

it  started  exporting  or  has  the  intention  to  export  to  the 

Community  after  the  investigation  period  and  that  it  is  not 

related  to or  associated  with  any of  the companies  subject  to the 

present  Investigation for which  dumping  was  found. 

(9)  With  regard  to Dong Guan TIan Bao Lighter  Factory, another  Chinese 

exporter,  who  submitted  a  reply  to  the  questionnaire,  which  was, 

in any  case,  incomplete,  more  than  six  months  after  the  deadline 

specified  in  the  questionnaire  sent  by  the  Commission  services, 

It  is  considered  that  the  dumping  margin  established  for  the 

People's Republic of China  should  apply. 

(10) Gao  Yao  Co.  submitted  that  the  ant I-dumping  duties  imposed  on 

Imports  made  by  Gao  Yao  Co.  should  be  cancelled  and  the  normal 

value  applicable  to  Gao  Yao  Co.  calculated  pursuant  to  Article 

2(6) and not Article 2(5) of Regulation  (EEC) No 2423/88. 

It  was  argued  that  Article  2(5)  should  not  be  applied  since 

imports  to  the  EEC  were  not  made  from  the  People's  Republic  of 

China  but  from  Hong  Kong  and  that  Gao Yao  Co.  (Hong  Kong) should 

be considered  as an exporter  and not  Gao Yao Co.  (China). 

- ?-

The  Council,  however,  confirms  that  in  this  case  the  products 

concerned  were merely  transhipped  through  Hong  Kong  and  therefore 

the  normal  value  should  be  determined  in accordance  with  Article 

2(5) of  the basic Regulation. 

(11) The  exporters  from  Thailand  argued  that  the  profit  margin  of  8%, 

added  to  the  cost  of  production  for  the  determination  of  the 

normal  value, was  too  high. All  domestic  sales of  Thai  Merry  Co. 

Ltd, were  found  to have been made at a  loss, the domestic sales of 

Poli top Co. Ltd were  not  considered  representative  and  there were 

no other  producers  or  exporters  in Thailand  in  the  same  business 

sector.  Therefore,  the  Commission  established  a  profit  margin  of 

8%  on  the  basis  of  the  profit  realised  by  other  exporters  from 

those countries which cooperated  in this procedure. 

(12)  In  the  light  of  the  above,  the  Council  confirms  the  conclusions 

set out  in recitals 19 to 29 of Regulation  (EEC) No 1386/91  taking 

into  account  the  corrections  mentioned  above  with  regard  to Thai 

Merry  Co. Ltd  and  the consequent  impact on  the margin  established 

for  the People's Republic of China. 

The  definitive weighted  average margins expressed  as a  percentage 

of CIF value for each of  the exporters concerned are as follows: 

Japan 

Tokai  Corporation, Yokohama 

People's Republic of China 

96,56% 

16.94% 

- e-

RepubIi c of Korea 

SamJi  Industrial,  Inchon 

31.58% 

Thai land 

Politop Co. Ltd, Bangkok 

Thai  Merry  Co. Ltd, Samutsakorn 

5.87% 

14.14% 

E.  I N J U RY  A ND  C A U S A T I ON  OF  I N J U RY 

(13) A  number  of  exporters  raised  again  the  Issue of  price  comparison 

of  lighters at  the  resale  level  of  the first  Independent  buyer  in 

the  Community.  It  was  argued  that  certain  imported  lighters 

contained  less  gas,  produced  less  flame  and,  therefore,  had  a 

different  appeal  to customers  than  those produced  by  the Community 

producers. 

Recital  34 of  Regulation  (EEC) Nr  1386/91  clearly  Indicates  that 

the  Commission  excluded  from  the  price  undercutting  exercise  a 

number  of  lighters  by  taking  into  account  only  lighters  with  a 

similar  gas  content.  The  Council,  therefore,  confirms  the 

Commission  findings with  regard  to price undercutting. 

(14) No  new  evidence  of  concerning  injury  was  presented  by  any  party. 

Consequently,  the  Council  confirms  the  Commission  conclusions  on 

Injury as they are set out  In Regulation  (EEC) No  1396/91. 

(15)  In recitals 44 to 50 of Regulation  (EEC) No  1386/91  the Commission 

concluded  that  the  cumulated  dumped  Imports  from  Japan,  the 

People's Republic of China, the Republic of Korea  and Thailand had 

caused  material  Injury  to  the  Community  industry.  The  Commission 

-9 

found  that  the  rapid  Increase  of  Japanese,  Chinese,  Korean  and 

Thai  low-priced  lighters coincided  with  an  equally  rapid  decrease 

of  production,  capacity  utilisation,  sales  volume,  market  share, 

prices, profits and employment  of  the Community  industry. 

No  new  facts  or  new  arguments  concerning  these  findings  were 

submitted  to  the  Commission  after  the  publication  of  Regulation 

(EEC)  No  1386/91. The  Council  therefore  confirms  the  conclusions 

of  the  Commission  as  set  out  in  recitals  44  to  50  of  that 

Regulation. 

F.  I N J U RY  T H R E S H O LD 

(16) With  regard  to the calculation  to determine  the  injury  elimination 

level,  the  Commission  considered 

it  appropriate  that  the 

difference  between  actual  selling  prices  of  the  exporters  and  a 

price  which  would  allow  the  Community  industry  to  achieve  15% 

profit  should  be eliminated. 

This  15% profit  margin  has been contested  by  the Japanese  producer 

and exporter  as being  too high. 

(17) According  to  the  Community  producers,  a  15% profit  margin  is the 

minimum  necessary  to  render  possible  additional  investments  in 

manufacturing  facilities  and  research  and  development,  without 

which  the deterioration  of  the situation  of  the  Industry  would  be 

bound  to be exarcebated  and  the  injury caused  by dumping  would not 

be  removed. 

Consideration  was  given  to  the  fact  that  the  profit  achieved  by 

the major  world  producers historically  ranged  between  12 and 20%. 

-10 

In  the  light  of  the  above,  the  Council  confirms  Commission 

findings  with  regard  to  the  injury  threshold  as  established  in 

recital  59 of Regulation  (EEC) No 1386/91. 

G.  C O M M U N I TY  I N T E R E ST 

(18) The  Japanese  exporter  suggested  that  there  was  a  danger  of 

Japanese  imports  being  replaced  by  low-priced  imports  from  other 

non-Community  countries  either  from  those  involved  in  this 

procedure  or  others  if  a  high  anti-dumping  duty  was  imposed 

against  Japan. 

(19) The Council  is not persuaded  that  the duties  proposed  would  lead 

to  Japanese  imports  being  replaced  by  low  priced  imports  from 

other  third  countries and considers  that  even  if it were to happen 

it  would  not  be  contrary  to  the  Community's  interest.  As the 

Council  has already  stated  in previous  Regulations,  anti-dumping 

duties  should  neither  have  a  protectionist  effect  for  the 

Community  industry nor cause any undue  handicap  for the exporters. 

They  are designed  to re-establish  fair  and open  market  conditions 

by  protecting  the Community  industry  against  an  unfair  trading 

practice.  If some  exporters' position on the market  suffers  after 

the  imposition  of  anti-dumping  duties,  then  this  is  only  the 

consequence  of  their  inability  to face  a  fair  competitive  market 

situât ion. 

(20) The Council  confirms the Commission  findings set out in Section G. 

of  Regulation  (EEC) No  1386/91  and considers  that  it  is in the 

Community  interest  to  impose  anti-dumping  measures  to  eliminate 

the  injurious  effects of dumped  imports  originating  in Japan, the 

People's Republic of China, the Republic of Korea and Thailand. 

-  u 

H.  D U TY 

(21) On  the  basis  of  calculations  of  dumping  and  Injury  threshold 

described  in  Regulation  (EEC)  Nr  1386/91  and  the  submissions 

subsequently  received,  the Council  concludes  that  duties should  be 

Imposed  at  the  level  of  the actual  dumping  found  for  the  People's 

Republic  of  China  and  Thailand  (firms  Thai  Merry  Co.  Ltd  and 

Poli top  Co.  Ltd)  and  for  Japan  (Tokai  Corporation)  and  the 

Republic  of  Korea  (SamJI  Industrial)  on  the  basis  of  the  injury 

threshold  established. 

The duties, therefore, shall  be: 

- Tokai  Corporation, Japan 

-  SamJI  Industrial, Republic of Korea 

- Gao Yao Co., People's Republic of China 

- Thai  Merry  Co. Ltd, Thailand 

-  Politop Co. Ltd, Thailand 

35.7% 

22.7% 

16.9% 

14.1% 

5.8% 

(22) The Council  confirms,  for  the  reasons stated  by  the Commission  in 

recital. 60  of  Regulation  (EEC) No  1386/91,  that  the  highest  duty 

established  for  each  country  should  be applied  to firms which  did 

not  respond  to  the  Commission  questionnaire  or  otherwise  did  not 

make  themselves known  to the Commission. 

I.  U N D E R T A K I NG 

(23) One of  the  two Thai  exporters, Thai  Merry  Co. Ltd,  has offered  an 

undertaking  which  Is considered  acceptable.  The  undertaking  will 

increase  the  price  of  the  products  in  question  by  a  level 

sufficient  to remove  the dumping  established  by  the  Commission. 

•~n~ 

Following  consultations  during  which  one  Member  State  raised 

objections  to  this  solution,  the  undertaking  was  accepted  by 

Commission  Decision  No  ..../91. 

J.  C O L L E C T I ON  OF  T HE 
P R O V I S I O N AL  D U T I ES 

(24) The  Thai  exporter,  Thai  Merry  Co.  Ltd,  requested  that  lighter 

Imports  already  dispatched  before  the  date  that  provisional 

measures  came  into effect  and  customs  cleared  after  that  date  be 

released  free of collection of provisional  duties and consequently 

that  the provisional  duty  should  not  be definitively  collected  in 

such cases. 

(25)  In  accordance  with  the  provisions  of  Articles  2(1)  and  11(1) of 

Regulation  (EEC)  No  2423/88,  anti-dumping  duties  are  applied  to 

the  products  concerned  at  the  moment  they  enter  Into  free 

circulation  In the Community.  Contrary  to Council  Regulation  (EEC) 

No  288/82  of  5  February  1982  on  common  rules  for  imports^1)  to 

which  the  exporter  refers,  the  anti-dumping  Regulation,  which  is 

applicable  to  products  imported  under  conditions  of  unfair 

competition,  does  not  provide  for  any  exceptions  to  this  rule. 

Moreover,  it  should  be  recalled  that  the  Commission  made 

considerable  efforts  to  keep  the  parties  concerned  informed  and 

thus the  importers cannot  reasonably  claim  to have been unaware of 

the  proceedings  or  of  the  stage  to  which  the  Investigation  had 

progressed  during  the  period  between  the  initiation  of  the 

proceedings and  the  imposition of  the provisional  duty. 

(1) O.J. No L 35, 09.02.1982. p. 1 

- • / ;-

(26) Therefore,  in view of  the size of  the established  dumping  margins 

and  of  the  serious  nature  of  the  Injury  caused  to  the  Community 

industry,  the  Council  considers  It  necessary  that  the  amounts 

secured  by  way  of  the  provisional  anti-dumping  duty  should  be 

collected  definitively  to  the  extent  of  the  amount  of  the 

definitive duty  imposed, 

H AS  A D O P T ED  T H IS  R E G U L A T I ON 

Article 1 

A  definitive anti-dumping  duty  is hereby  Imposed  on  Imports of  gas 

fuelled,  non  refiliable  pocket  flint  lighters  falling  within  CN 

code  ex  9613  10  00  (Taric  code  9613  10  00  *  10)  originating  in 

Japan,  the  People's  Republic  of  China,  the  Republic  of  Korea  and 

Thai land. 

The  rate  of  the  duty,  applicable  to  the  net  free-at-Commun I ty-

frontler price before duty,  is set out as follows: 

(a) 35,7% for  the products originating  in Japan, 

(b) 16.9% for  the products originating  In the  People's  Republic of 

China, 

(c) 22,7% for  the products originating  in the Republic of Korea, 

(d) 14.1%  for  the  products  originating  in  Thailand  (Taric 

additional  code  8543) with  the  exception  of  imports  which  are 

produced  and  sold  for  export  to  the  Community  by  Polltop  Co. 

Ltd,  Bangkok  where  the  rate  shall  be  5,8%  (Taric  additional 

code  8544). 

Oi~ 

3.  The  duty  referred  to  in  paragraph  2(d)  shall  not  apply  to  gas 

fuelled  non  refiliable  pocket  flint  lighters  exported  to  the 

Community  by Thai  Merry Co. Ltd  (Taric additional  code  8542). 

4.  The provisions  in force concerning customs duties ®hal;l lapply. 

Article  2 

The amounts secured  by way of  the provisional  anti-dumping duty  imposed 

under  Regulation  (EEC)  No  1386/91  shall  be adefinitlvelw  collected  at 

the duty  rate definitively  imposed. 

Article 3 

This Regulation shall  enter  into force on  the day fol lowing that of  its 

pub iI cat Ion  in t he Official  JournaI  of  the ^European Commun It les. 

This  Regulation  shall  be  binding  in  its  tentir©%  and  directly 

applI cab le  in all Member  States. 

Done at Brussels, 

?Forttbe iCounci 

ISSN 0254-1475 

COM(91) 419 final 

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