Council Regulation (EC) No 692/2005 of 28 April 2005 amending Regulation (EC) No 2605/2000 imposing definitive anti-dumping duties on imports of certain electronic weighing scales (REWS) originating, inter alia, in the People’s Republic of China
Date: 2005-04-28
Institutions: Council of the European Union
Subjects: China, anti-dumping duty, anti-dumping legislation, electronic device, measuring equipment

3.5.2005

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Official Journal of the European Union

L 112/1

I

(Acts whose publication is obligatory)

COUNCIL REGULATION (EC) No 692/2005

of 28 April 2005

amending Regulation (EC) No 2605/2000 imposing definitive anti-dumping duties on imports of
certain electronic weighing scales (REWS) originating, inter alia, in the People’s Republic of China

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty
Community,

establishing the European

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)
(the
basic Regulation), and in particular Article 11(4) thereof,

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

Whereas:

A. MEASURES IN FORCE

(1)

(2)

of

certain electronic weighing

The measures currently in force on imports into the
Community
scales
(REWS) originating in the People’s Republic of China
(PRC) are definitive anti-dumping duties imposed by
Council Regulation (EC) No 2605/2000 (2). Pursuant to
the same Regulation, anti-dumping duties were also
imposed on imports of REWS originating in Taiwan
and the Republic of Korea.

B. CURRENT INVESTIGATION

1. Request for a review

of REWS

After the imposition of definitive anti-dumping duties on
the
imports
originating
a ‘new
Commission received a request
exporter’
review of Regulation (EC) No 2605/2000,
pursuant to Article 11(4) of the basic Regulation, from
two related Chinese companies, Shanghai Excell M&E
Enterprise Co., Ltd and Shanghai Adeptech Precision
Co., Ltd (the applicant). The applicant claimed that it

in the
to initiate

PRC,

(1) OJ L 56, 6.3.1996, p. 1. Regulation as last amended by Regulation

(EC) No 461/2004 (OJ L 77, 13.3.2004, p. 12).
(2) OJ L 301, 30.11.2000, p. 42. Regulation as

amended by
Commission Regulation (EC) No 1408/2004 (OJ L 256, 3.8.2004,
p. 8).

(3)

(4)

(5)

was not related to any of the exporting producers in the
PRC subject to the anti-dumping measures in force with
regard to REWS. Furthermore, it claimed that it had not
exported REWS to the Community during the original
investigation period (the original IP, i.e. the period from
1 September 1998 to 31 August 1999), but had started
to export REWS to the Community thereafter.

2. Initiation of a ‘new exporter’ review

The Commission examined the evidence submitted by
the applicant and considered it sufficient to justify the
initiation of a review in accordance with Article 11(4) of
the basic Regulation. After consultation of the Advisory
Committee and after the Community industry concerned
the
had been given the opportunity to comment,
(EC)
Commission
No
(EC)
No 2605/2000 with regard to the applicant and
commenced its investigation.

by
review of

initiated,
a

1408/2004,

Regulation

Regulation

to the Commission Regulation initiating the
Pursuant
review, the anti-dumping duty of 30,7 % imposed by
Regulation (EC) No 2605/2000 on imports of REWS
produced by the applicant was repealed. Simultaneously,
the basic Regulation,
pursuant
customs authorities were directed to take appropriate
steps to register such imports.

to Article 14(5) of

3. Product concerned

investigation),

The product concerned by the current review is the same
as that in the investigation that led to the imposition of
the measures in force on imports of REWS originating in
the PRC (original
i.e. electronic weighing
scales for use in the retail trade, having a maximum
weighing capacity not exceeding 30 kg, which incor-
porate a digital display of the weight, unit price and
price to be paid (whether or not including a means of
printing this data), normally declared within CN code
ex 8423 81 50 (TARIC code 8423 81 50 10) and origi-
nating in the PRC.

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(6)

(7)

4. Parties concerned

The Commission officially advised the applicant and the
representatives of the exporting country of the initiation
of the review. Interested parties were given the oppor-
tunity to make their views known in writing and to be
heard.

The Commission also sent a market economy treatment
(MET) claim form and a questionnaire to the applicant
and received replies within the deadlines set
for that
purpose. The Commission sought and verified all the
information it deemed necessary for the determination
of dumping, including the MET claim, and a verification
visit was carried out at the premises of the applicant.

— firms have one clear set of basic accounting records
which are independently audited in line with interna-
tional accounting standards (IAS) and are applied for
all purposes,

— no distortions carried over

from the non-market

economy system,

— bankruptcy and property laws guarantee stability and

legal certainty,

5. Investigation period

rates.

— exchange rate conversions are carried out at market

(8)

The investigation of dumping covered the period from
1 July 2003 to 30 June 2004 (the investigation period
or IP).

(9)

(10)

C. RESULTS OF THE INVESTIGATION

1.

‘New exporter’ qualification

The investigation confirmed that the applicant had not
exported the product concerned during the original IP
it had begun exporting to the Community
and that
after this period.

Furthermore, the applicant was able to demonstrate that
it was not related to any of the exporters or producers in
the PRC which are subject to the anti-dumping measures
in force on imports of REWS originating in the PRC.

(11)

In this context, it is confirmed that the applicant should
be considered a ‘new exporter’ in accordance with Article
11(4) of the basic Regulation.

2. Market economy treatment (MET)

(12)

in
Pursuant to Article 2(7)(b) of the basic Regulation,
anti-dumping investigations concerning imports origi-
nating in the PRC, normal value shall be determined in
accordance with paragraphs 1 to 6 of the said Article for
those producers which were found to meet the criteria
laid down in Article 2(7)(c) of the basic Regulation, i.e.
is shown that market economy conditions
where it
prevail
in respect of the manufacture and sale of the
like product. These criteria are set out in a summarised
form below:

— business decisions are made in response to market
signals, without significant State interference, and
costs reflect market values,

(13)

(14)

(15)

to examine whether

The applicant requested MET pursuant to Article 2(7)(b)
of the basic Regulation. It is the Community’s consistent
practice
related
companies as a whole fulfils the conditions for MET.
Therefore, Shanghai Adeptech Precision Co., Ltd and
Shanghai Excell M&E Enterprise Co., Ltd were invited
to complete a MET claim form. Both companies replied
to the MET claim form within the given deadline.

a group of

information deemed
The Commission sought
necessary and verified all
information submitted in the
MET applications at the premises of the companies in
question.

all

It was considered that MET should not be granted to the
applicant on the basis that
the two related Chinese
companies did not meet the first two criteria laid down
in Article 2(7)(c) of the basic Regulation.

(16) As regards the first criterion, the Articles of Association
of one of the two related Chinese producers allow its
State-controlled partner, which does not hold any
capital of the company and was presented as performing
the functions of a mere landlord, to claim compensation
if the company did not achieve its production, sales and
profit targets. Moreover, the approval of the local autho-
rities was necessary to recognise buildings as fixed assets
and to start amortising the land use rights. Furthermore,
one of the Chinese producers had never paid rent for the
land use rights and benefited from bank guarantees
provided free of charge by a third party. Under these
circumstances
the
company could not show that its business decisions are
made in response to market signals, reflecting market
values and without significant State-interference,
it was
found that this criterion is not met.

and in view of

that

fact

the

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(17)

(18)

(19)

(20)

(21)

the

IAS 1,

(IAS). As

Concerning the second criterion, the applicant was found
to be in breach of certain international accounting
applicant
standards
regards
breached three fundamental accounting concepts:
the
accrual basis of accounting, prudence and substance
over form. The applicant also failed to comply with
IAS 2 on inventories, buildings were not recognised
and depreciated in line with IAS 16 and the land use
rights were not amortised according to IAS 38. Finally,
IAS 21 on the effect of changes in foreign exchange rates
and IAS 36 on the impairment of assets were also
breached. The fact that the audit reports were silent as
regards most of the breaches of the IAS indicates that the
audit was not carried out in accordance with IAS.

regarding inventories, while

It should also be underlined that the auditor’s report
concerning the financial year 2001 of one of the two
related Chinese producers had already noted the
auditor’s
problems
reports concerning the financial years 2002 and 2003
noted that the company had not established the relevant
policy on provisions for impairment of assets. These
were thus recurrent problems that have been raised
year after year by the auditor
to no avail. This is
another element that clearly indicates that the accounts
of the applicant are not reliable.

the

The applicant and the Community industry were given
an opportunity to comment on the above findings. After
consultation of the Advisory Committee, the applicant
was informed that MET could not be granted. The
Community industry made no comments. The applicant
claimed that there was no State interference, that costs
reflected market values and that the abovementioned IAS
were not applicable in its case.

In particular, one of the two related Chinese producers
claimed that a compensation claim relating to the
performance of a company could normally be found in
economy
a joint venture agreement under market
conditions. The other producer considered that it was
free period
normal
that a company enjoyed a rent
during the construction phase of a project. Finally,
it
considered that depreciation of buildings and amorti-
sation of land use rights were not a company-specific
issue and there was not any benefit accruing to the
Chinese authorities.

than those of a mere landlord. Secondly, rent was due to
the State for the first years of operation. Any exemption
from such payment obligation should have been
provided for in the contract. Finally, the fact that the
applicant admitted that depreciation of buildings and
amortisation of land use rights are not determined by
the conclusion
the companies
that
in the
the State
business decisions of the applicant.

themselves
could significantly interfere

reinforces

(22)

(23)

The applicant’s main argument on criterion 2 was that
the IAS have not been adopted by the accounting
profession in the People’s Republic of China (PRC). The
applicant admitted that
followed, but
considered that the IAS mentioned by the Commission
were not applicable in the IP. However, it was found that
all the IAS provisions set out in recital 17 were in force
during the IP.

they were not

In its comments to the final disclosure, the applicant
argued that the determination not to grant MET to the
two related Chinese producers was not made within three
months of the initiation of the investigation as provided
for in Article 2(7)(c) of the basic Regulation. According
this had an influence on the
to the
applicant,
Commission’s decision not
to verify the information
provided by some of its related companies and by the
producer in the analogue country, which had a preju-
dicial effect on the outcome of the investigation.

legal consequences.

(24) As regards the argument concerning the three-month
time limit, the non-respect of such time limit does not
entail any apparent
It should be
noted that the MET claims received were deficient and
required a number of substantial clarifications and addi-
tional information which delayed the investigation. The
two related Chinese exporting producers were given, on
their own request, extensions of the time limits to submit
these
information.
Furthermore, as they could not receive the verification
team at the beginning of October 2004, the verification
visits only took place in the second half of that month,
thus further delaying the MET determination.
It was,
therefore, concluded that a valid MET determination
could be made or adopted also after the three-month
period.

clarifications

additional

and

These arguments had to be rejected. Firstly, although the
mere existence of a joint venture such as the one in the
current investigation does not indicate State interference,
the Articles of Association contain mechanisms that
allow the State to interfere. In particular, the right of
the Chinese partner (i.e. the local authorities) to claim
compensation is not limited to the case where rent is
not paid. The rights of the Chinese partner are thus wider

(25)

information it considered
The Commission verified all
the
investigation at
necessary during the on-the-spot
premises of the applicant and accepted all
information
provided by its related companies in order to calculate
the export price. Therefore, the fact that verification visits
were not carried out at the premises of these related
companies had no detrimental effect to the applicant.
Concerning the producer in the analogue country, the
findings are set out in recitals 29 to 41.

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(26)

In view of the above findings, it was concluded that the
conditions set out in Article 2(7)(c) of the basic Regu-
lation were not met by the applicant and, therefore, MET
should not be granted.

(34)

3. Individual treatment (IT)

(27)

The applicant also claimed IT in the event that it was not
granted MET. On the basis of the information submitted,
it was found that the two related Chinese companies met
all the requirements for IT as set forth in Article 9(5) of
the basic Regulation.

(28)

It was therefore concluded that IT should be granted to
the applicant.

(35)

4. Dumping

N o r m a l v a l u e

(a) Analogue country

(29) According to Article 2(7)(a) of the basic Regulation, for
non-market economy countries and, to the extent that
MET could not be granted, for countries in transition,
normal value has to be established on the basis of the
price or constructed value in an analogue country.

(30)

In the Regulation initiating this review, the Commission
indicated its intention to use Indonesia as an appropriate
analogue country for the purpose of establishing normal
value for
the PRC and invited interested parties to
comment on this. Indonesia had already been used as
an analogue country in the original investigation.

Furthermore,

investigation.

The applicant considered as a discriminatory change of
methodology between the original investigation and this
review the fact that no verification visit was carried out at
the premises of
the Indonesian producer during the
review, while such visit was carried out during the
original
applicant
considered discriminatory the use of non-verified facts
for the calculation of normal value for a non-market
economy exporting producer, while
this does not
happen in ‘new exporter’ reviews concerning exporting
producers in market economy countries. The applicant,
based on information in the non-confidential file, argued
that the reply to the questionnaire of the Indonesian
producer was apparently inadequate and there was only
information to make a rough calculation of constructed
normal value.

the

In accordance with Article 16 of the basic Regulation,
verification visits are not mandatory. Therefore, not to
carry out a verification visit cannot be considered discri-
minatory. Furthermore, the fact that a verification visit
was not carried out at the premises of the Indonesian
producer during the review does not mean that the infor-
mation provided has not been carefully analysed. The
information provided by the Indonesian producer was
consistent with that provided in the original
investi-
gation, which had been verified on the spot, and with
the documentary evidence supplied in the reply to the
questionnaire. This information was sufficient to perform
a detailed calculation of constructed normal value as set
out below. The fact that the applicant could not identify
in the non-confidential file all confidential details of the
information provided by the Indonesian producer does
render such information inadequate to calculate
not
the applicant has not claimed
normal value. Finally,
contain
that
not
file
to permit a reasonable
summaries in sufficient detail
understanding
in
confidence.

non-confidential

information

submitted

did

the

the

of

(31) No objections were raised by any interested party with
regard to this choice. The Indonesian producer who had
cooperated in the original investigation also cooperated
in the current review and completed the Commission’s
questionnaire.

(36)

In view of the above, the comments of the applicant on
verification visit and inadequate information had to be
rejected.

(32)

(33)

It should also be noted that, before a decision on the
selection of the most appropriate analogue country was
made, questionnaires were also sent to producers in the
Republic of Korea, Taiwan and Japan, but
these
producers did not cooperate.

(37)

In view of the above, and in particular the fact that
Indonesia was used as the analogue country in the
original investigation, and that there are no indications
Indonesia as analogue country
that
the suitability of
Indonesia
would have changed,
it
constitutes
in
appropriate
accordance with Article 2(7)(a) of the basic Regulation.

is concluded that
analogue

country

an

(b) Determination of normal value

to Article 2(7)(a) of

the basic Regulation,
Pursuant
the two related Chinese exporting
normal value for
the infor-
producers was established on the basis of
mation received from the producer
in the analogue
country. Although the production and export sales of
its sales to unrelated
this producer were significant,
customers on the Indonesian market were considered
not
to be made in sufficient quantities. Therefore,
normal value had to be determined on the basis of the
constructed value for product types comparable to those
exported to the Community by the applicant, i.e. on the
basis of the cost of production of the REWS manu-
factured in Indonesia plus a reasonable amount
for
selling, general and administrative (SGA) expenses and
for profits.

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(38)

The SGA expenses used were those incurred by the Indo-
nesian manufacturer as well as by one related company
involved in its domestic sales.

(traders) registered in Samoa and Taiwan. The export
price was established on the basis of the resale prices
paid or payable by the first independent buyer in the
Community.

(43)

For the calculation of the profit margin, in the absence of
sufficient quantities sold by the Indonesian producer to
unrelated customers on its domestic market,
it was
investi-
necessary to use information from the original
gation. It was decided to take the profit margin used to
construct normal value in the original
investigation
concerning
imports of REWS from Taiwan. This
margin was considered reasonable in the absence of
any other information on the profitability of the like
product sold in Indonesia. It should also be noted that
the REWS sold by the Taiwanese exporting producers on
the Taiwanese domestic market were all
low-range
REWS, which is also the case of the REWS manufactured
by the producer in the analogue country.

C o m p a r i s o n

trade.

In order

The comparison between the normal value and the
export price was made on an ex-factory basis and at
to ensure a fair
the same level of
comparison, account was taken,
in accordance with
Article 2(10) of the basic Regulation, of differences in
factors which were demonstrated to affect prices and
allowances
price
for
comparability. On this basis,
differences in physical characteristics,
transport costs,
handling costs and commissions were made where
applicable.

(39)

(40)

in the original

The applicant argued that,
in accordance with Article
11(9) of the basic Regulation, the same methodology
investigation should have been
as
applied in determining normal value,
i.e. selling prices.
It also argued that there is no indication that the SGA of
the related company was included in the original inves-
tigation, as there is no reference to this issue in the
original Regulation. It would thus appear that the meth-
odology used in the original investigation was changed to
it merely
the detriment of the applicant. Furthermore,
argued that it was unusual to choose the profitability
in the original IP of a market other than that of the
analogue country.

investigation where

sales during the original

(41) With regard to these arguments, as set out in recital 37
above, constructed normal value with the profit on
investigation in
domestic
Taiwan was used because the domestic sales in the Indo-
nesian market during the investigation period were
considered insufficient for establishing normal value on
the basis of sales prices. This was not the case during the
original
and not
constructed value were used. This is the reason why
the original Regulation did not contain any details
about SGA expenses. Furthermore,
it should be noted
that if the prices of the few sales of REWS on the Indo-
nesian market had been used, the normal value thus
established would have been higher. The same would
in constructing normal value the
have happened if
profit margin from these
in
few domestic
sales
incorrect to
Indonesia had been used.
argue that the methodology changed to the detriment
of the applicant.

It is, therefore,

sales prices

(44) An adjustment was made to the normal value to exclude
the value of any printer interface. Furthermore, as some
of the models sold by the two related Chinese exporting
producers through their related sales companies to the
Community had a pole, an adjustment to the normal
value was made to take into account the value of the
pole.

(45) As the related traders of the Chinese exporting producers
have functions similar to those of an agent working on a
commission basis, an adjustment to the export price for
a commission was made in accordance with Article
2(10)(i) of
the
commission was calculated based on direct evidence
In this
pointing to the existence of such functions.
context, in the calculation of the commission, the SGA
the
expenses incurred by the related traders to sell
product
two related
concerned produced by
Chinese producers were taken into account.

the basic Regulation. The level of

the

(46)

The applicant argued that the model sold in the analogue
country had higher specifications which affected the price
comparability.

(47) As the applicant did not provide a single example of the
alleged higher specifications and their alleged impact on
the price comparability, this claim could not be accepted.

(48)

The applicant claimed that certain information submitted
subsequently to the questionnaire reply should have been
used to calculate the adjustment
transport and
handling costs on the export price.

for

E x p o r t p r i c e

(42)

The two related Chinese exporting producers sold their
REWS to the Community through related companies

(49)

This claim was accepted and the export price was
adjusted upwards.

(50)

(51)

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The applicant argued that an adjustment should be made
to the normal value for after-sales costs, guarantees and
credit costs. It also claimed that the costs resulting from
the agreement signed between one of the Indonesian
producer’s
in
Indonesia should be deducted from the normal value.

and a distributor

related companies

D u m p i n g m a r g i n

(55) As provided for under Article 2(11) of the basic Regu-
lation, the weighted average normal value by type was
compared with the weighted average export price of the
corresponding type of the product concerned.

These claims had to be rejected because the costs
mentioned by the applicant were not included either in
the manufacturing costs or in the SGA expenses used to
construct normal value. Therefore, there is no reason to
deduct such costs from the normal value.

commission was paid.

(52) According to the applicant, Article 2(10)(i) of the basic
Regulation does not allow to deduct a commission from
the export prices of its related companies because no
actual
In any event, when
making such an adjustment on the export price, a
similar adjustment
should have been made to the
normal value as the company related to the Indonesian
producer performed the same functions as those of the
applicant’s related companies. Furthermore, as regards the
sales through Taiwan, the applicant argued that the calcu-
lation of
included costs concerning
production and management. The apportionment key
used should have been based on the number of
employees working in the distribution and sales of
REWS in the Taiwanese company instead of the total
number of employees working in distribution and sales.

the adjustment

(53) Article 2(10)(i) does not require that a commission in the
form of a mark-up has actually been paid, in particular
when the trader is related to the exporting producer, if
the functions of the trader are similar to those of an
agent working on a commission basis. An adjustment
for commissions should be made if the parties do not
act on the basis of a principal — agent relationship, but
achieve the same economic result by acting as buyer and
seller. The applicant’s related companies invoiced all the
export sales to unrelated customers and determined the
selling prices, while the latter placed the orders with
them. This was not the case of the company related to
the Indonesian producer, whose SGA expenses were used
to construct normal value. In fact, the sales on the Indo-
nesian market were made by another related company
and, as already explained in recital 51, the SGA expenses
of
this company were not used to construct normal
value. It was, therefore, not appropriate to make such
an adjustment to the normal value and the applicant’s
claims could not be accepted.

(54) As

the

regards

specifically

adjustment

calculation of

the
for
it should be stressed that the applicant,
commissions,
although
provided
requested,
sufficient details which would have allowed a different
allocation of
the
applicant’s claim on the calculation of the adjustment
for commissions had to be rejected.

its SGA expenses.

In this context,

has not

(56)

(57)

(58)

the

practice

consistent

The comparison showed the existence of dumping. In
accordance with
the
Community, one dumping margin has been calculated
for the two related exporting producers. This dumping
margin expressed as a percentage of
free-at-
Community-frontier price, duty unpaid, for the related
companies Shanghai Adeptech Precision Co., Ltd and
Shanghai Excell M&E Enterprise Co., Ltd is 52,6 %.

the net,

of

D. AMENDMENT OF THE MEASURES BEING REVIEWED

the results of

the investigation,

In the light of
is
considered that a definitive anti-dumping duty should
be imposed for
the
the applicant at
dumping margin found. This margin is below the
country-wide injury elimination level established for the
PRC in the original investigation.

the level of

it

context,
to

In this
amended anti-dumping duty
from Shanghai
applicable
Adeptech Precision Co., Ltd and Shanghai Excell M&E
Enterprise Co., Ltd is 52,6 %.

the
imports

of REWS

E. RETROACTIVE LEVYING OF THE ANTI-DUMPING
DUTY

(59)

In the light of the above findings, the anti-dumping duty
applicable to the applicant should be levied retroactively
on imports of the product concerned which have been
made subject to registration pursuant to Article 3 of
Commission Regulation (EC) No 1408/2004.

F. DISCLOSURE

(60) All parties concerned were informed of the essential facts
and considerations on the basis of which it was intended
to impose on imports of REWS from the applicant an
amended definitive anti-dumping duty and to levy this
to regis-
duty retroactively on imports made subject
tration. Their comments were considered and taken
into account where appropriate.

(61)

This review does not affect
the date on which the
measures imposed by Regulation (EC) No 2605/2000
will expire pursuant to Article 11(2) of the basic Regu-
lation,

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L 112/7

HAS ADOPTED THIS REGULATION:

Article 1

The table in Article 1(2) Regulation (EC) No 2605/2000 is

1.
hereby amended by adding the following:

The duty hereby imposed shall also be levied retroactively
the product concerned which have been
to Article 3 of Regulation (EC) No

2.
on imports of
registered pursuant
1408/2004.

‘Country

Company

The People’s
Republic of
China

Shanghai Adeptech
Precision Co., Ltd
No 3217 Hong Mei Road,
Shanghai
201103, People’s
Republic of China

Shanghai Excell M&E
Enterprise Co., Ltd
No 1688 Huateng Road,
Huaxin Town,
Qingpu District, Shanghai,
People’s Republic of China

Rate of
duty

TARIC addi-
tional code

52,6 %

A561

The customs authorities are hereby directed to cease the regis-
tration of imports of the product concerned originating in the
People’s Republic of China and produced by Shanghai Adeptech
Precision Co., Ltd and Shanghai Excell M&E Enterprise Co., Ltd.

Unless otherwise

3.
concerning customs duties shall apply.

specified,

the provisions

in force

52,6 %

A561’

Article 2

This Regulation shall enter into force on the day following 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, 28 April 2005.

For the Council
The President

J. ASSELBORN