Commission Decision No 1000/1999/ECSC of 11 May 1999 amending Decision No 2277/96/ECSC on protection against dumped imports from countries not members of the European Coal and Steel Community
Date: 1999-05-11
Institutions: European Commission
Subjects: ECSC, anti-dumping duty, import, import policy, third country

12. 5. 1999

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Official Journal of the European Communities

L 122/35

COMMISSION DECISION No 1000/1999/ECSC

of 11 May 1999

amending Decision No 2277/96/ECSC on protection against dumped imports
from countries not members of the European Coal and Steel Community

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European
Coal and Steel Community, and in particular Article 74
thereof,

(1) Whereas the Commission, by Decision No 2277/
96/ECSC (1), adopted common rules for protection
against dumped imports from countries which are
not members of
the European Coal and Steel
Community;

(2) Whereas the Council, by Regulation (EC) No 519/
94 (2), as last amended by Regulation (EC) No
1138/98 (3), has adopted common rules for imports
for certain third countries which are listed in
Annex I thereto;

(3) Whereas Article 2(7) of Decision No 2277/96/
ECSC lays down that, in the case of imports from
non-market-economy countries and, in particular,
those countries to which Regulation (EC) No 519/
94 applies, normal value shall be determined on
the basis of the price or constructed value in an
analogue market-economy third country;

(4) Whereas the process of reform in Russia and the
fundamentally
People’s Republic of China has
altered their economies and has led to the emer-
gence of firms for which market-economy condi-
tions prevail; whereas both countries have con-
sequently moved away from the economic circum-
stances which prompted the use of the analogue
country method;

(5) Whereas the Community’s anti-dumping practice
under Council Regulation (EC) No 384/96 (4), as
last amended by Regulation (EC) No 905/98 (5), was
amended by that Regulation in order to be able to
take account of the changed economic conditions
to Russia and in the People’s Republic of China;
whereas, in particular, Regulation (EC) No 384/96
provides that normal value may be determined in

accordance with the rules applicable to market-
economy countries in cases where it can be shown
that market conditions prevail for one or more
producers subject to investigation in relation to the
manufacture and sale of the product concerned;

(6) Whereas Article 2(10) of Decision No 2277/96/
ECSC provides for a limited number of allowances
which can be made to the normal value and export
prices before these are compared to establish
whether dumping is taking place; whereas, since it
is conceivable that differences in selling expenses,
other than those listed in that Decision, may in
certain circumstances affect price comparability, it
is prudent to eliminate the exclusive nature of this
provision in relation to allowances;

(7) Whereas the Community’s anti-dumping practice
under Regulation (EC) No 384/96 was amended by
Regulation (EC) No 2331/96 (6) in order to clarify
the requirements for an adjustment for differences
in levels of trade when information on price effects
for two levels of trade does not exist for the market
concerned, as well as to provide for an adjustment
in order to fine-tune the allocation of costs between
different levels of trade on the domestic market of
the exporting country;

(8) Whereas it is therefore desirable to align the rel-
evant provisions of Decision No 2277/96/ECSC on
those of Regulation (EC) No 384/96 as a matter of
in order to ensure consistency in the
urgency,
application of
the anti-dumping rules provided
under the EC Treaty and the ECSC Treaty repect-
ively,

HAS ADOPTED THIS DECISION:

Article 1

(1) OJ L 308, 29.11.1996, p. 1.
(2) OJ L 67, 10.3.1994, p. 89.
(3) OJ L 159, 3.6.1998, p. 1.
(4) OJ L 56, 6.3.1996, p. 1.
(5) OJ L 128, 30.4.1998, p. 18.

Article 2 of Decision No 2277/96/ECSC is amended as
follows:

(6) OJ L 317, 6.12.1996, p. 1.

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Official Journal of the European Communities

12. 5. 1999

1. Paragraph 7 is replaced by the following:

‘7 (a) In the case of

from non-market-
imports
economy countries (*), normal value shall be
determined on the basis of
the price or
constructed value in a market-economy third
country, or the price from such a third country
to other countries, including the Community,
or, where that is not possible, on any other
reasonable basis,
including the price actually
paid or payable in the Community for the like
product, duly adjusted if necessary to include a
reasonable profit margin.

An appropriate market-economy third country
shall be selected in a not unreasonable manner,
due account being taken of any reliable in-
formation made available at the time of selec-
tion. Account shall also be taken of time limits;
where appropriate, a market-economy third
country which is subject to the same investiga-
tion shall be used.

to the investigation shall be
The parties
informed shortly after
the
market-economy third country envisaged and
shall be given 10 days to comment.

initiation of

its

(b) In anti-dumping

if

it

investigations

concerning
imports from Russia and the People’s Republic
of China, normal value shall be determined in
is
accordance with paragraphs 1 to 6,
shown, on the basis of properly substantiated
claims by one or more producers subject to the
investigation and in accordance with the criteria
and procedures set out in subparagraph (c), that
market-economy conditions prevail
this
producer or producers in respect of the manu-
facture and sale of the like product concerned.
When this is not the case, the rules set out
under subparagraph (a) shall apply.

for

(c) A claim under subparagraph (b) shall be made
in writing and shall contain sufficient evidence
that
the producer operates under market-
economy conditions, that is if:

(cid:190) decisions of

firms regarding prices, costs
and inputs, including for instance raw mate-
rials, cost of technology and labour, output,
sales and investment, are made in response
reflecting supply and
to market
demand, and without significant State inter-
ference in this regard, and costs of major
inputs substantially reflect market values,

signals

(cid:190) firms have one clear set of basic accounting
records which are independently audited in
line with international accounting standards
and are applied for all purposes,

(cid:190) the production costs and financial situation
of firms are not subject to significant distor-
tions carried over from the former non-
market-economy system,
in
relation to depreciation of assets, other
write-offs, barter
trade and payment via
compensation of debts,

in particular

(cid:190) the firms concerned are subject to bank-
ruptcy and property law which guarantee
legal certainty and stability for the operation
of firms, and

(cid:190) exchange-rate conversions are carried out at

the market rate.

A determination whether the producer meets
the abovementioned criteria shall be made
within three months of the initiation of the
investigation, after specific consultation of the
Advisory Committee and after the Community
industry has been given an opportunity to
comment. This determination shall remain in
force throughout the investigation.

(*) Including Albania, Armenia, Azerbaijan, Belarus,
Georgia, Kazakhstan, North Korea, Kyrgyzstan,
Moldova, Mongolia, Tajikistan, Turkmenistan,
Ukraine, Uzbekistan, Vietnam.'

2. Paragraph 10 is amended as follows:

(a) Subparagraph (d) is replaced by the following:

‘(d) Level of trade

(i) An adjustment for differences in levels of
trade, including any differences which may
arise in OEM (original equipment manu-
facturer) sales, shall be made where, in rela-
tion to the distribution chain in both
markets, it is shown that the export price,
including a constructed export price, is at a
different level of trade from the normal
value and the difference has affected price
comparability which is demonstrated by
consistent and distinct differences in func-
tions and prices of
the
different levels of trade in the domestic
market of
the exporting country. The
amount of the adjustment shall be based on
the market value of the difference.

the seller

for

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(ii) However, in circumstances not envisaged
under (i), when an existing difference in
level of trade cannot be quantified because
of the absence of the relevant levels on the
domestic market of the exporting coun-
tries, or where certain functions are shown
clearly to relate to levels of trade other than
the one which is to be used in the compar-
ison, a special adjustment may be granted.'

(b) The following subparagraph is added:

‘(k) Other factors

subparagraphs (a) to (j) if it is demonstrated that
required
they affect price comparability as
under
that
customers consistently pay different prices on
the domestic market because of the difference
in such factors.'

this paragraph,

in particular

Article 2

This Decision shall enter into force on the day of its
publication in the Official Journal of the European
Communities.

An adjustment may also be made for differ-
ences in other factors not provided for under

It shall apply to all anti-dumping investigations initiated
after the date of its entry into force.

This Decision shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 11 May 1999.

For the Commission

Leon BRITTAN

Vice-President