Proposal for a Council Regulation terminating the partial interim review of the anti-dumping measures applicable to imports of fluorspar originating in the People's Republic of China
Date: 2003-11-05
Institutions: European Commission
Subjects: China, anti-dumping measure, common commercial policy, fluorine, import (EU)

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 5.11.2003
COM(2003) 662 final

Proposal for a

COUNCIL REGULATION

terminating the partial interim review of the anti-dumping measures applicable
to imports of fluorspar originating in the People’s Republic of China

.

(presented by the Commission)

EXPLANATORY MEMORANDUM

On 13 June 2002 a partial interim review limited to the form of the measure was initiated with
regard  to  anti-dumping  measures  imposed  by  Council  Regulation  (EC)  No  2011/2000  on
imports into the Community of fluorspar originating in the People’s Republic of China.

The attached proposal for a Council Regulation is based on the findings of the investigation,
which  revealed  that  the  form  of  the  measures  imposed  by  Council  Regulation  (EC)  No
2011/2000 should not be changed.

It is therefore proposed that the Council adopt the attached proposal for a Council Regulation,
which should be published as soon as possible in the Official Journal of the European Union.

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Proposal for a

COUNCIL REGULATION

terminating the partial interim review of the anti-dumping measures applicable
to imports of fluorspar originating in the People’s Republic of China

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  1995  on  protection
against  dumped  imports  from  countries  not  members  of  the  European  Community1  (“Basic
Regulation”), and in particular Article 11(3) thereof,

Having  regard  to  the  proposal  submitted  by  the  Commission  after  consulting  the  Advisory
Committee,

Whereas:

1.

Measures in force

A.

PROCEDURE

(1) 

In  September  2000,  the  Council,  by  Regulation  (EC)  No  2011/20002,  imposed  a
definitive  anti-dumping  duty  on  imports  of  fluorspar  originating  in  the  People’s
Republic  of  China  (“PRC”).  The  duty  took  the  form  of  a  minimum  import  price
(“MIP”).

2.

Initiation

(2) 

(3) 

On  13  June  2002,  the  Commission  announced  by  a  notice  published  in  the  Official
Journal of the European Communities3 (“notice of initiation”) the initiation of a partial
interim  review  of  the  anti-dumping  measures  applicable  to  imports  into  the
Community of fluorspar originating in the PRC pursuant to Article 11(3) of the Basic
Regulation.

The review was initiated on the initiative of the Commission in order to examine the
appropriateness of the form of the measures in force, currently an MIP, as it does not
differentiate between sales made to related parties and sales made to unrelated parties,
or  between  first  sales  and  successive  sales  to  the  Community  and  it  had  become
apparent  that  this  could  lead  to  enforcement  problems.  Consequently,  the  existing
measures did not appear sufficient to counteract the dumping which is causing injury.

1

2

3

OJ L 56, 6.3.1996, p. 1, as last amended by Regulation (EC) No 1972/2002 (OJ L 305, 7.11.2002, p. 1).
OJ L 241, 26.9.2000, p. 5.
OJ C 140, 13.6.2002, p. 16.

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3.

Investigation

(4) 

(5) 

The  Commission  officially  advised  the  importers,  the  users  known  to  be  concerned
and their associations, the representatives of the exporting country concerned and the
Community  producers  about  the  initiation  of  the  proceeding.  Interested  parties  were
given the opportunity to make their views known in writing and to request a hearing
within the time limit set out in the notice of initiation.

An  association  of  Community  producers,  a  chamber  of  commerce  in  the  PRC,  eight
users, one importer in the Community and one trader in the United States of America
(“USA”) made their views known in writing. All parties which so requested within the
time limit, and which demonstrated that there were particular reasons why they should
be heard, were granted the opportunity to be heard.

(6) 

The Commission sought and verified  all the information it deemed necessary  for the
purpose of a determination of the appropriateness of the measures in force.

B.

FINDINGS OF THE INVESTIGATION AND TERMINATION OF THE

PARTIAL INTERIM REVIEW

(7) 

(8) 

(9) 

The initiation of an interim review was motivated by the necessity to limit the risk of
duty  avoidance.  Such  duty  avoidance  can  occur  in  different  circumstances.  When
exporters  currently  subject  to  the  measures  export  to  the  Community,  they  are  in  a
position to invoice at a price above the MIP, and to subsequently compensate such a
price after customs declaration by an agreement with the importers. This may  render
the  MIP  ineffective,  as  it  may  mean  that  the  product  concerned  is  effectively  still
exported below the MIP to the Community. Accordingly, this could lead to subsequent
resale prices in the Community which prevent that the intended effects of the measure,
i.e. to remove the injurious effects of dumping, are achieved. The substantial  general
risk of price manipulation when duties take the form of an MIP was highlighted by the
findings  of  the  European  Court  of  Auditors  in  its  2000  Annual  Report4.  In  order  to
address this problem, it was initially envisaged to replace the MIP by an ad valorem
duty.

Although in general an ad valorem duty is considered to be more appropriate to avoid
the risk of price manipulation,  it  was  found  that  in  the  specific  circumstances  of  the
current case the risk of price manipulation is very low, if not non-existent, since, over
a  sustained  period  of  time,  import  prices  have  been  well  above  the  MIP.  Therefore,
exporters would not have any reason to manipulate prices in the way set out in recital
(7). This was also confirmed by the comments from all interested parties which made
their views known, including the Community  industry,  which  all  considered  that  the
form of the measure should not be changed.

It is therefore concluded that, due to the particular and very specific circumstances of
the  present  case,  there  are  currently  no  reasons  to  change  the  form  of  the  measure
concerning imports of fluorspar originating in the PRC and the current partial interim
review  should  be  terminated  without  any  amendment  to  the  anti-dumping  measures
imposed by Council Regulation (EC) No 2011/2000,

4

OJ C 359, 15.12.2001, p. 1, recitals 1.31 and 1.35.

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HAS ADOPTED THIS REGULATION:

Article 1

The  partial  interim  review  of  the  anti-dumping  measures  applicable  to  imports  of  fluorspar
originating in the People’s Republic of China, initiated pursuant to Article 11(3) of Council
Regulation (EC) No 384/96, is hereby terminated without amending the anti-dumping duty in
force.

Article 2

This  Regulation  shall  enter  into  force  on  the  day  following  that  of  its  publication  in  the
Official Journal of the European Union.

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

Done at Brussels, […]

For the Council
The President

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