1999/219/EC: Commission Decision of 11 March 1999 concerning an application submitted by Ecumet (UK) Ltd for the refund of anti-dumping duties collected on certain imports of silicon metal originating in Brazil (notified under document number C(1999) 559) (Only the English and Dutch texts are authentic)
Date: 1999-03-11
Institutions: European Commission
Subjects: Brazil, anti-dumping duty, import, originating product, redemption, semi-metal

25. 3. 1999

EN

Official Journal of the European Communities

L 80/25

COMMISSION DECISION

of 11 March 1999

concerning an application submitted by Ecumet (UK) Ltd for the refund of
anti-dumping duties collected on certain imports of silicon metal originating in
Brazil

(notified under document number C(1999) 559)

(Only the English and Dutch texts are authentic)

(1999/219/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

review by a notice published in the Official
Journal of the European Communities (6).

Having regard to the Treaty establishing the European
Community,

Having regard to Council Regulation (EC) No 384/96 of
22 December 1995 on protection against dumped imports
the European
from countries
Community (1) (hereafter referred to as ‘the basic Regula-
tion'), as last amended by Council Regulation (EC) No
905/98 (2), and in particular Article 11(8) thereof,

not members

of

After consulting the Advisory Committee,

Considering the following:

A. ORIGINAL MEASURES

(1)

(2)

(3)

Council Regulation (EEC) No 2305/92 (3) imposed
a definitive anti-dumping duty on imports of
silicon metal originating in Brazil. The specific rate
the product
of duty applied to importations of
when produced by Companhia Brasileira Carboreto
de Calcio (hereafter ‘CBCC') was set at 18,3 %.

On 14 August 1996 CBCC submitted a request for
an interim review (hereafter referred to as ‘the
review') which was initiated on 7 January 1997 by a
notice published in the Official Journal of the
European Communities (4).

Following the publication in February 1997 of a
notice of impending expiry of the measures in
force (5) and the receipt in May 1997 of a complaint
lodged by the Liaison Committee of the ferro-alloy
industry (hereafter referred to as ‘EuroAlliages'), the
Commission announced the initiation of an expiry

(1) OJ L 56, 6. 3. 1996, p. 1.
(2) OJ L 128, 30. 4. 1998, p. 18.
(3) OJ L 222, 7. 8. 1992, p. 1.
(4) OJ C 3, 7. 1. 1997, p. 13.
(5) OJ C 36, 5. 2. 1997, p. 12.

(4)

(5)

Following the withdrawal by EuroAlliages of their
request for an expiry review, both reviews were
concluded by Commission Decision 98/164/EC (7)
which terminated the proceeding and hence
repealed the duty for CBCC. The above Decision
concluded that there had been no dumping of the
product by CBCC during the investigation period
of the interim review, that is from 1 January 1996
to 31 December 1996.

B. APPLICATION FOR REFUND

On 18 September 1996, 1 October 1996, 13
February 1997, 22 May 1997, 3 June 1997, 20
August 1997, 3 September 1997, 18 November
1997, 4, 15 and 22 December 1997, 20 January
1998, 9 February 1998 and 24 March 1998 Ecumet
(UK) Ltd. (hereafter referred to as ‘the applicant'),
an independent customer of CBCC, submitted
applications for the refund of NLG [. . .] (8) and
GBP [. . .] (289 transactions in total) on imports of
silicon metal originating in Brazil and released for
free circulation in the United Kingdom and the
Netherlands. The goods were sold for export to the
Community by CBCC between 30 July 1995 and
23 January 1998.

(6)

the applicant partially
On 21 November 1997,
withdrew one application in respect of 8 transac-
tions totalling GBP [. . .].

Following this withdrawal, the total amounts for
which refunds are claimed are NLG [. . .] and GBP
[. . .],

(281 transactions in total).

(6) OJ C 242, 8. 8. 1997, p. 3.
(7) OJ L 58, 27. 2. 1998, p. 58.
(8) In the published version of this Decision some figures have
been omitted pursuant to Article 19 of Regulation (EC) No
384/96 concerning confidentiality.

L 80/26

EN

Official Journal of the European Communities

25. 3. 1999

C. ARGUMENTS OF THE APPLICANT

(13)

(7)

(8)

(9)

(10)

(11)

(12)

The applicant claims that the dumping margin in
respect of the silicon metal exported by CBCC and
released into free circulation in the Community in
the period January 1996 to February 1998 was
significantly lower than the applicable duty rate of
18,3 %, which he paid for his imports.

D. ADMISSIBILITY

The applications are inadmissible in respect of Five
transactions for an amount of NLG [. . .] and 11
transactions for GBP [. . .] of anti-dumping duties
because the time-limit of six months prescribed by
the basic Regulation between the determination of
duties to be levied and the submission of
the
applications for refund was not respected with
regard to those transactions.

All of the applications submitted for the remaining
claims of NLG [. . .] and GBP [. . .] (265 transactions
in total) correspond to definitive anti-dumping
duties paid and were introduced within the time
the basic
limits established in Article 11(8) of
Regulation.

E. MERITS OF THE APPLICATIONS

1. Evidence

In accordance with the relevant provisions of
Article 11(8) of the basic Regulation, the applicant
submitted in respect of the applications referred to
in recital (9) of this Decision the necessary prima
facie evidence relating to normal value and export
prices showing that the duty collected exceeds the
dumping margin calculated for the appropriate
reference periods.

In particular, the Commission sought and verified
all the information it considered necessary within
the framework of
the
review investigation (see below). Verification visits
were also made to the premises of CBCC within
the framework of the review investigation.

this investigation and of

The applications dependent on the findings of the
review should be considered to be duly substan-
tiated by evidence within the meaning of
the
Fourth subparagraph of Article 11(8) of the basic
Regulation, which sets
for
completing refund investigations, from the date on
which the findings of the review were published in
the Official Journal of the European Communi-
ties, that is 27 February 1998.

time-limits

the

The remaining applications which were dealt with
in the framework of
the refund investigation
should be considered to have been duly supported
by evidence from the date on which the Commis-
sion’s services were in receipt of all data necessary
for the investigation, that is 6 August 1998.

(14)

The Commission,
in pursuing this investigation,
applied the same methodology as that used in the
original investigation as required by Article 11(9) of
the basic Regulation.

2. Reference periods

(15)

The dumping margin of the exporter CBCC was
calculated for the following three reference periods:
from 1 July 1995 to 31 December 1995, from
1 January 1996 to 31 December 1996 and from 1
January 1997 to 31 December 1997.

3. Merits of the transactions sold for export
between 1 January 1996 and 31 December
1996

The applications in respect of 105 transactions on
which anti-dumping duties of NLG [. . .] and GBP
[. . .] were paid relate to invoices issued within the
investigation period select for the review, that is
from 1 January 1996 to 31 December 1996.

The Commission considers that the information
and findings of the review, which determined that
there was no dumping of the product concerned by
CBCC for
the period 1 January 1996 to 31
December 1996, should be used to determine
whether and to what extent a refund is justified for
the import transactions which were invoiced by
CBCC between those dates.

4. Merits of the transactions sold for export
between 1 July 1995 and 31 December 1995
and between 1 January 1997 and 31
December 1997

156 transactions relate to invoices issued by CBCC
between 30 July 1995 and 31 December 1995 and
between 17 January 1997 and 27 December 1997
for total amounts of NLG [. . .] and GBP [. . .] of
anti-dumping duties.

As the transactions in question clearly fall outside
the period of investigation used for the review of
the measures and thus the conclusions of
the
review could not be applied to those transactions,
the Commission services carried out an invest-
igation to determine whether and to what extent a
refund was justified.

25. 3. 1999

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Official Journal of the European Communities

L 80/27

To that end, the dumping margin of CBCC was
calculated for the periods of 1 July 1995 to 31
December 1995 and 1 January 1997 to 31
December 1997.

(a) Normal value

It was found that CBCC’s domestic sales volume
exceeded
the
Community, in accordance with Article 2(2) of the
basic Regulation.

5 % of

export

sales

its

to

It was also established that the silicon metal sold
on the Brazilian market was comparable to the
silicon metal
the
Community.

exported from Brazil

to

In order to assess if and to what extent domestic
sales were made in the ordinary course of trade, the
unit value of each domestic transaction was
compared with the cost of production per tonne
reported by the company during the reference
periods. It was found that the volume of sales made
at prices equal to or above the cost of production
were between 10 % and 80 % of the total domestic
sales volume. Normal value was, therefore, estab-
lished on the basis of the average domestic sales
price of these sales only.

(b) Export prices

Export price was established by reference to the
price actually paid for the silicon metal sold for
export to independent buyers in the Community,
in accordance with Article 2(8) of the basic Regula-
tion.

(c) Comparison

Normal value was compared at an ex-factory level
with the export price on a weighted average basis
and at the same level of trade. For the purpose of
ensuring a fair comparison due allowance in the
form of adjustments was made for differences
affecting price comparability, in accordance with
Article 2(10) of the basic Regulation.

(d) Establishment of the dumping margin

The refund investigation was concluded with a
finding of no dumping by CBCC of the product
concerned during the relevant periods of 1 July
1995 to 31 December 1995 and 1 January 1997 to
31 December 1997.

5. Merits of the transactions sold for export in

January 1998

Following the selection of the reference period of 1
January 1997 to 31 December 1997, two applica-
tions related to invoices issued by CBCC on 23
January 1998 for an amount of NLG [. . .] and one
of GBP [. . .] were lodged.

The Commission considers that the finding of no
dumping for the reference period of 1 January
1997 to 31 December 1997 can be reasonably
applied to these transactions. In particular,
the
Commission considers that these transactions took
place immediately after the period examined, that
the amount concerned is very small in proportion
to the total volume of exports to the Community
by CBCC during the reference periods and to the
total amount claimed by the applicant and that a
stable pattern of no dumping was consistently
found for the transactions made for the two and
half years preceding these transactions. Further-
more it was established that
the average FOB
export price decreased by less than 0,25 % and the
domestic transactions were found, on average, to be
both profitable and at prices consistently lower
than the export prices.

F. DISCLOSURE

(16)

The applicant received disclosure of the essential
facts and considerations on the basis of which it is
intended
a Commission Decision
concerning the refund application in question. The
applicant made no comments.

adopt

to

G. AMOUNT TO BE REFUNDED

there was no dumping for

(17) As the review and refund investigations established
the product
that
concerned when exported by CBCC in the three
reference periods,
and the Commission also
considers that the finding of no dumping can be
applied to the transactions invoiced in January
1998 as a result of the comparison with the rate of
duty applied the applicant should be refunded
NLG [. . .] and GBP [. . .],

HAS ADOPTED THIS DECISION:

Article 1

The refund applications submitted by Ecumet (UK)

1.
Ltd are granted in respect of

— NLG [. . .]

and

— GBP [. . .].

L 80/28

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Official Journal of the European Communities

25. 3. 1999

2.

The refund applications are rejected in respect of

Article 3

— NLG [. . .]

and

— GBP [. . .].

This Decision is addressed to the Kingdom of the Neth-
erlands,
the United Kingdom of Great Britain and
Northern Ireland and Ecumet (UK) Ltd, 6, Paddockhall
Road, Haywards Heath, West Sussex, RH16 1HH, Great
Britain.

Article 2

Done at Brussels, 11 March 1999.

The amounts set in Article 1(1) shall be refunded by the
United Kingdom and the Kingdom of the Netherlands
respectively.

For the Commission

Leon BRITTAN

Vice-President