2003/371/EC: Commission Decision of 22 May 2003 terminating the anti-dumping proceeding concerning imports of recordable compact disks originating in India
Date: 2003-05-22
Institutions: European Commission
Subjects: India, anti-dumping duty, import, originating product, record

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Official Journal of the European Union

23.5.2003

COMMISSION DECISION

of 22 May 2003

terminating the anti-dumping proceeding concerning imports of recordable compact disks
originating in India

(2003/371/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

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 from
countries not members of the European Community (1), as last
amended by Regulation (EC) No 1972/2002 (2), and in parti-
cular Article 9 thereof,

After consulting the Advisory Committee,

Whereas:

(1)

(2)

(3)

(4)

A. PROCEDURE

On 17 May 2002, the Commission announced, by a
notice published in the Official Journal of the European
Communities (3),
an anti-dumping
initiation of
proceeding with regard to imports into the Community
of recordable compact disks (CD-Rs) originating in India.

the

The proceeding was initiated as a result of a complaint
lodged in April 2002 by the Committee of CD-R manu-
facturers (CECMA), acting on behalf of producers repre-
the total Community
senting a major proportion of
production of CD-Rs. The complaint contained evidence
of dumping of the said product and of material injury
resulting therefrom, which was considered sufficient to
justify the initiation of an anti-dumping proceeding.

There are definitive anti-dumping measures currently in
force on imports of CD-Rs originating in Taiwan
(Council Regulation (EC) No 1050/2002 (4)). A parallel
anti-subsidy proceeding concerning imports into the
Community of the same product originating in India
was initiated by a notice published in the Official Journal
of the European Communities (5) on the same date of the
initiation of the anti-dumping proceeding referred to in
recital 1.

The Commission officially advised the applicant and the
other known Community producers,
the exporting
importers, users and suppliers known to be
producer,
concerned as well as the representatives of India of the
initiation of
the proceeding. The parties directly
concerned were given an opportunity to make their
views known in writing and to request a hearing within
the time limit set in the notice of initiation.

(1) OJ L 56, 6.3.1996, p. 1.
(2) OJ L 305, 7.11.2002, p. 1.
(3) OJ C 116, 17.5.2002, p. 2.
(4) OJ L 160, 18.6.2002, p. 2.
(5) OJ C 116, 17.5.2002, p. 4.

(5)

(6)

(7)

The exporting producer in India, as well as the applicant
and other Community producers, importers, consumers
association and suppliers, made their views known in
writing. All parties who so requested within the above
there were particular
time limit and indicated that
reasons why they should be heard were granted a
hearing.

Certain parties contended that the applicant Community
producers did not fulfil the requirements of Article 5(4)
of Council Regulation (EC) No 384/96 (basic Regulation)
and that
the investigation was not
warranted. In this respect, it should be noted that both
statutory pre-initiation thresholds, namely the 25 % and
50 % thresholds of Article 5(4), were met and, therefore,
the investigation could be initiated.

the initiation of

The Commission sought, by means of questionnaires
sent to all known parties, and verified all the information
it deemed necessary for the purpose of a determination
In this
of dumping,
regard, the Commission carried out verification visits at
the premises of the following companies:

injury and Community interest.

(a) Exporting producer in India:

— Moser Baer India Ltd., New Delhi, India;

(b) Producers in the Community:

— Computer Support Italcard SRL, Milan, Italy,

— C.D.A Datenträger Albrechts GmbH, Albrechts,

Germany,

— CPO Magnetic Products BV, Oosterhout,

the

Netherlands,

— Fuji Magnetics GmbH, Kleve, Germany,

— Mitsui Advanced Media SA, Ensisheim, France,

— MPO Media SAS, Averton, France,

— TDK Recording Media Europe SA, Bascharage,

Luxembourg,

— Prime Disc Technologies GmbH, Wiesbaden,

Germany,

— IMAG Optical Storage Ltd, Limerick, Ireland,

— Multimedia
Ireland;

Info-Tech Ltd, Belfast, Northern

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(c) Suppliers in the Community:

— Bayer AG, Leverkusen, Germany,

— Steag Hamatech, Sternenfels, Germany,

(12)

Consequently, CD-Rs sold on the domestic market of
India and exported to the Community as well as CD-Rs
produced and sold in the Community are considered as
a like product within the meaning of Article 1(4) of the
basic Regulation.

(8)

The investigation of dumping and injury covered the
period from 1 April 2001 to 31 March 2002 (investiga-
tion period or IP). The examination of trends relevant
for the assessment of injury covered the period from 1
January 1998 to the end of the investigation period.

B. PRODUCT UNDER CONSIDERATION AND LIKE

PRODUCT

1. Product under consideration

(9)

The product under consideration is recordable compact
discs
(CD-Rs) currently classifiable under CN code
ex 8523 90 00.

(10) A CD-R is a polycarbonate disc, which is coated with a
layer of dye, a layer of reflective material such as gold or
silver and a protective layer. Recording on such a disk
can be done only once and therefore the disc is said to
be of the type WORM (Write Once Read Many). The
disc is an optical storage medium for digital data or
music. Recording is realised by exposing the dye-layer to
an infrared laser beam in a CD-R recorder.

CD-Rs can be distinguished according to the type of data
stored (data CD-R versus music CD-R), the storage capa-
city,
(mainly silver) and
whether or not the CD-R is printed upon.

the reflective metal

layer

The product is also sold in different qualities and comes
on the market in different types of packaging of which
the most
frequently encountered are regular or slim
jewel cases containing one CD-R, shrink-wrapped spin-
dles of 10 to 100 CD-Rs, cake-boxes of 10 to 100 CD-
Rs, envelopes containing one CD-R packed in cello-
phane, or in a carton or paper sleeve, etc.

Although the use and the quality of the various types of
CD-Rs sold may differ, this does not entail any signifi-
cant differences in the basic physical and technical char-
acteristics of
types. They are therefore
considered as one product for the purpose of this inves-
tigation.

the different

2. Like product

(11)

The investigation showed that CD-Rs produced and sold
on the domestic market of
India have similar basic
physical and technical characteristics and uses compared
with that exported from this country to the Community.
Similarly, CD-Rs manufactured by the applicant and
other Community producers and sold on the Commu-
nity market have similar basic physical and technical
characteristics
and uses when compared to these
exported to the Community from the country in ques-
tion.

C. DUMPING

(13)

The investigation has shown that Moser Baer India Ltd.
is the sole exporting producer of the product concerned
in India.

1. Normal value

(14)

(15)

(16)

In accordance with Article 2(2) of the basic Regulation,
the Commission first examined whether the domestic
sales of CD-Rs to independent customers by the sole
exporting producer were representative, i.e. whether the
total volume of such sales was equal to or greater than
5 % of the total volume of the corresponding export
sales to the Community.

This assessment revealed that the exporting producer
had representative sales of CD-Rs on the domestic
market during the IP.

The Commission considered domestically sold and
exported product types, which had similar storage capa-
layer, printing, quality and uses, as being
city, metal
directly comparable.

(17) Domestic sales of a particular product type were consid-
total
ered as
domestic sales volume of that type during the IP repre-
sented 5 % or more of the total sales volume of the
comparable product type exported to the Community.

sufficiently representative when the

(18)

The Commission subsequently examined whether the
domestic sales of
the exporting producer could be
considered as being made in the ordinary course of trade
pursuant to Article 2(4) of the basic Regulation.

This was done by establishing the proportion of
domestic sales
to independent customers, of each
exported product type, sold at a loss on the domestic
market during the IP. For those product types where
more than 80 % by volume of sales on the domestic
market were not below unit costs, and where the
weighted average sales price was equal to or higher than
the weighted average production cost, normal value, by
product type, was calculated as the weighted average of
all domestic sales prices of the type in question.

(19)

For all types exported to the Community, domestic sales
were found to have been made in the ordinary course of
trade. Normal value was, therefore, based for the corre-
sponding product
type on the actual prices paid or
payable, by independent customers in the domestic
market of India, during the IP, as set out in Article 2(1)
of the basic Regulation.

(21)

(22)

(23)

(24)

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(20) Where necessary,

the manufacturing costs and the
selling, general and administrative (SG&A) expenses
reported were corrected before being used in the
ordinary course of trade test.

2. Export price

Certain exports of the product under consideration by
the exporting producer were made directly to indepen-
dent customers in the Community and consequently the
export price was established in accordance with Article
2(8) of the basic Regulation, on the basis of export
prices actually paid or payable.

The exporting producer also sold the product concerned
to related parties in the Community. For these exports,
the export price was established in accordance with
Article 2(9) of the basic Regulation, on the basis of
prices at which the imported products were first resold
to an independent buyer. For this purpose, adjustments
were made to take account of all costs, including duties
and taxes, incurred between importation and resale, and
of profits normally accruing, so that a reliable export
price could be established.

(26)

(27)

and to distributors which could affect the comparability
of export price and normal value. More importantly, the
investigation has shown that the vast majority of its
exports to the Community concerned OEM sales, whilst
such sales did not exist in the domestic market. The
majority of the domestic sales were sales to distributors
and only a minor proportion were sales to retailers. The
request for a level of trade adjustment thus rests on the
assumption that the distribution level on the domestic
side is comparable to the level of OEM sales on the
export side. In view of the conclusions reached in recital
27, it was decided not to pursue this matter further and
consequently no adjustment was made for the alleged
differences in the level of trade.

4. Dumping margin

Pursuant to Article 2(11) of the basic Regulation, the
weighted average normal value by product type was
compared with the weighted average export price by
product type.

The calculation has shown no dumping for Moser Baer
India Ltd. Given that this is the sole exporting producer
in India, and pursuant to Article 9(3) of the basic Regu-
lation, the Commission concludes that the anti-dumping
proceeding concerning CD-Rs originating in India should
be terminated without the imposition of measures.

3. Comparison

The comparison between normal value and export price
for the exporting producer concerned was made on an
ex-factory basis. For the purpose of ensuring a fair
comparison between the normal value and the export
price, due allowance in the form of adjustments was
made for differences affecting price comparability in
accordance with Article 2(10) of the basic Regulation. In
this respect, allowances for differences in transport costs,
ocean freight and insurance costs, handling, loading and
ancillary costs, packing costs, credit costs and commis-
sions have been granted where applicable and justified.

trade pursuant

The exporting producer claimed a special adjustment for
differences in the level of
to Article
2(10)(d) of the basic Regulation. The company argued
that its domestic market is formed mainly by distributors
and retailers while in the export market there are either
OEM (i.e. original equipment manufacturers) sales or
sales through distributors.
In view of the absence of
retailers in the export market, the exporting producer
claimed an adjustment on sales prices to retailers quanti-
fied at the level of a weighted average price difference
between sales prices to retailers and those to distributors
in the domestic market.

(25)

It is noted that the exporting producer did not claim an
adjustment which may arise in OEM sales. Furthermore,
it has not shown that there are differences in functions
of the seller for sales in the domestic market to retailers

D. INJURY

(28)

In view of the conclusions concerning dumping, it was
not considered necessary to analyse injury, causality and
Community interest aspects arising from the investiga-
tion since this would not alter the conclusions reached.

E. CONCLUSION

(29) All parties concerned were informed of the essential
facts and considerations on the basis of which the termi-
nation of the anti-dumping proceeding would be based.
They were granted a period within which to make repre-
sentations subsequent to the disclosure. Representations
received further
to the disclosure did not however
provide any new elements which could affect the above
findings.

(30)

In particular, CECMA claimed that there was a particular
market situation and the normal value should have been
constructed because the domestic sales did not permit a
proper comparison since the sole exporting producer
operates an Export Oriented Unit which received coun-
tervailable subsidies. CECMA also claimed that
the
‘strategy’ of the exporting producer to sell only low
quality CD-Rs in its domestic market must be regarded
as a particular market situation.

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(31) As set out in recitals 14 to 20 above, the investigation
has shown that
the domestic sales were sufficiently
representative and in the ordinary course of trade. The
quality of CD-Rs was
taken into account when
comparing domestically sold and exported product
types. No particular market situation was established,
which could allow the use of constructed normal value
in accordance with Article 2(3) of the basic Regulation.
The existence of any countervailable subsidies is the
subject of the parallel anti-subsidy investigation and has
not affected the establishment of normal value.

(32)

In view of the findings set out above, the Commission
considers that the anti-dumping proceeding concerning
imports into the Community of CD-Rs originating in
India should be terminated,

HAS DECIDED AS FOLLOWS:

Sole Article

The anti-dumping proceeding concerning imports into the
Community of recordable compact discs (CD-Rs) currently clas-
sifiable within CN code ex 8523 90 00 and originating in India
is hereby terminated.

Done at Brussels, 22 May 2003.

For the Commission

Pascal LAMY

Member of the Commission