Council Regulation (EC) No 1659/2005 of 6 October 2005 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain magnesia bricks originating in the People’s Republic of China
Date: 2005-10-06
Institutions: Council of the European Union
Subjects: China, anti-dumping duty, anti-dumping legislation, brick, heat-resisting materials, import, originating product

12.10.2005

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Official Journal of the European Union

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I

(Acts whose publication is obligatory)

COUNCIL REGULATION (EC) No 1659/2005

of 6 October 2005

imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on
imports of certain magnesia bricks originating in the People’s Republic of China

THE COUNCIL OF THE EUROPEAN UNION,

(4)

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 9 thereof,

The Commission continued to seek and verify all infor-
mation it deemed necessary for its definitive findings. The
oral and written comments submitted by the parties were
examined, and, where considered appropriate, the provi-
sional
the
imposition of provisional measures, on-spot verification
visits were carried out at the premises of

findings were modified accordingly. After

— Carboref GmbH, Germany (unrelated importer)

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

— Duferco, S.A., Switzerland (unrelated importer)

Whereas:

A. PROCEDURE

1. Provisional Measures

(1)

(2)

(3)

On 13 April 2005, the Commission imposed, by Regu-
lation (EC) No 552/2005 (2) (the provisional Regulation),
a provisional anti-dumping duty on imports into the
Community of certain magnesia bricks originating in
the People’s Republic of China (PRC).

It is recalled that the investigation period of dumping and
injury (IP) covered the period from 1 April 2003 to 31
March 2004. The examination of trends relevant for the
injury analysis covered the period from 1 January 2001
to the end of the IP (period considered).

2. Subsequent procedure

Following the imposition of the provisional anti-dumping
duty on imports of certain magnesia bricks from the
PRC, some interested parties submitted comments in
also
writing. The parties who so requested were
granted an opportunity to be heard orally.

(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 93, 12.4.2005, p. 6.

(5)

(6)

— Duferco La Louvière, Belgium (user)

— Refratechnik
importer).

Steel

GmbH,

Germany

(related

The Commission further disclosed all the essential facts
and considerations on the basis of which it intended to
recommend the imposition of a definitive anti-dumping
duty and the definitive collection of amounts secured by
way of the provisional duty. The interested parties were
also granted a period within which they could make
representations subsequent to this disclosure. The oral
and written comments submitted by the parties were
considered and, where appropriate, taken into account
for the definitive findings.

B. PRODUCT CONCERNED AND LIKE PRODUCT

It is recalled that, in recital 12 to the provisional Regu-
lation, the product concerned was defined as chemically
bonded, unfired magnesia bricks, whose magnesia
component contains at
least 80 % MgO, whether or
not containing magnesite, originating in the PRC (the
product concerned), normally declared within CN codes
ex 6815 91 00, ex 6815 99 10.
It was found in the
further
investigation that CN code
ex 6815 99 90 could also be legally used for imports
of the product concerned.

course of

the

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(7)

(8)

(9)

and

ex 6903 90 90

The investigation has shown that the product concerned
was also imported under CN codes ex 6815 10 10,
ex 6902 10 00
(ex 6903 90 20
before 1 January 2004) during the IP. However, CN
falling within chapter 69, ceramic products,
codes
should only be used for fired products and not for the
product concerned which is unfired. In addition, CN code
6815 10 10 includes products which are essentially char-
acterised by carbon, whereas the product concerned is
the magnesium oxide
by
essentially
content. Therefore,
the product concerned
under these codes should be considered unacceptable
should they be used.
In order to prevent misclassifi-
cations in the future, and to ensure that the codes will
the customs authorities have been
be correctly used,
alerted via a special risk information form.

characterised

imports of

the scope of

initiation and that

One interested party argued that only the CN codes
6815 91 00 and 6815 99 10 were mentioned in the
notice of
the investigation could,
therefore, not be extended to the additional codes.
However, CN codes which are mentioned in the notice
of initiation are given for information only and are not
binding, as it is the product description, in particular the
physical and chemical characteristics, which is relevant
the investigation. Consequently, all
for
same basic
types of magnesia bricks
physical
having
and
basically the same use, should be covered by the inves-
tigation, regardless of their customs classification. The
scope of the investigation has thus not been extended.
The investigation has clarified that the product concerned
CN codes
should
imported
ex 6815 91 00, ex 6815 99 10 and ex 6815 99 90.
If,
however, it was found that the product concerned was
mistakenly declared under a different CN code, the inves-
tigation also covered that product.

characteristics

sharing the

chemical

legally

under

and

be

it

concerned and the

In the absence of any other comments regarding the
the product
definition of
like
the product
therefore concluded that
is
product,
concerned is defined as chemically bonded, unfired
magnesia bricks, whose magnesia component contains
at
containing
magnesite, originating in the PRC, declared within
and
CN
ex 6815 99 90. Findings in recitals 13 to 16 to the
provisional Regulation are also confirmed.

least 80 % MgO, whether or not

ex 6815 91 00,

ex 6815 99 10

codes

were dumped was described in the provisional Regu-
lation. The general methodology as set out in particular
in recitals 35, 45 and 61 to the provisional Regulation is
hereby confirmed.

2. Market Economy Treatment (MET)

that

(11) As mentioned in recital 28 to the provisional Regulation,
failed to provide conclusive
one exporting producer
its assets were valued independently and
proof
recorded at market value. It did not demonstrate that
all costs were taken into account at market value. The
exporting producer
reiterated the same claims after
adoption of
the provisional Regulation. Although it
failed to respect the extended deadlines, it claimed that
it had provided new evidence concerning the assets
valuation,
the rejection
of MET.

justifying a reconsideration of

(12)

the documents

It should be noted that the said exporting producer did
not provide
requested within the
deadlines, which would be sufficient to reject its claims.
Nevertheless, an examination of the documents received
indicated that no new evidence was provided to support
these claims. Thus, even if these documents could be
taken into consideration,
they would not change the
findings of the provisional Regulation. The decision not
to grant MET to this exporting producer is therefore
confirmed.

(13)

Similarly, two other exporting producers to whom MET
had been refused reiterated their objections raised at the
provisional
stage. However, no new evidence was
provided which would justify any change in the decision.

(14)

absence of other

In the
concerning MET set out
provisional Regulation are confirmed.

comments,

findings
in recitals 17 to 28 to the

the

C. DUMPING

3. Individual treatment (IT)

1. General methodology

(10)

The general methodology used to establish whether the
imports into the Community of the product concerned

(15)

The companies not granted IT provided no new evidence
proving that they should be granted IT. Therefore, and in
the absence of any other comments on IT, the findings as
set out in recitals 29 to 34 to the provisional Regulation
are hereby confirmed.

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4. Normal value

(22)

4.1. Determination of normal value of all exporting producers

not granted MET

(a) A n a l o g u e c o u n t r y

(16) As set out in recital 39 to the provisional Regulation, the
Commission sought
cooperation from 38 known
producers around the world. However, cooperation was
only obtained from two producers in the United States of
America. The investigation did not show any reason why
the information received and verified was not suitable for
this proceeding.

(17)

Some interested parties argued that the USA was not an
adequate analogue country for establishing the normal
value for the PRC. They claimed that with only three
producers on the US domestic market the competition
was insufficient. In this respect, it is recalled that, as set
out in recital 40 of the provisional Regulation, the inves-
tigation showed that the USA have a competitive market
for the product concerned with at least three producers,
around 30 suppliers, more than 15 importers and
therefore
approximately 300 users. This claim was
rejected.

(18)

Since these claims were not further substantiated and in
the absence of any further comments on this issue, the
choice of the USA as the analogue country is hereby
confirmed.

(19)

(20)

(b) D e t e r m i n a t i o n o f n o r m a l v a l u e

Some exporting producers claimed that clerical errors
were made
in the definitive dumping calculations.
specific claims concerning the ocean freight
Other
surcharge and the
the insurance cost, export
costs,
credit rate used in the calculations were also made by
exporters.

Following an examination of these claims, it was found
that some clerical errors occurred in the calculations.
These were corrected. Some other claims concerning
export
ocean freight,
charge could also be accepted as far as they were
justified
claims had
substantiated. All other
and
however to be rejected.

costs and the

insurance

the

(21)

For the reasons stated below, some interested parties
argued that the normal value from the USA should be
adjusted downward.

irrelevant

this claim is

Firstly, it was claimed that the Chinese producers have a
different cost structure, especially with regard to certain
costs including labour and electricity. It must be noted
that
the
assessment of normal value in the analogue country as
any such adjustment on the costs would render the
investigation in the analogue country meaningless and
it would lead to adjust the normal value to non-market
economy levels. Moreover, this claim was not substan-
tiated by any evidence. Therefore, it had to be rejected.

in the context of

(23)

(24)

Secondly, it was argued that one of the two cooperating
producers in the USA is linked to one of the complainant
companies in the Community. It is recalled that normal
value in the analogue country was established on the
basis of the data provided by two companies in the
USA. This data was closely analysed and verified on
spot. On this basis, it was concluded that the relationship
between one of
those companies and a complainant
company did not affect the reliability of the data used
for the establishment of normal value. No indications
were found during the investigation that this relationship
had any influence on the normal value in analogue
country.

Finally, following substantiated claims by a number of
exporters, normal value was adjusted downwards due
to (i) differences in quality of the raw material used by
the producers in the analogue country as compared to
that used by producers in the PRC; (ii) the higher costs of
transport and other charges; and (iii) importation costs
associated with the purchases of these raw materials by
the US producers. It was also found that certain types of
treatment of the bricks were done in the USA but not in
the investigation showed that an
China. Furthermore,
trade was also
adjustment concerning the level of
warranted.

(25)

In the absence of any other comments, recitals 42 and
43 of the provisional Regulation are confirmed.

4.2. Determination of normal value of all exporting producers

granted MET

(26) At the provisional stage, the normal value for companies
granted MET was established for each type of magnesia
bricks. These types could be identified by a Product
Control Number
(PCN). For companies granted IT,
however, groups of PCNs were established based on
MgO content
establishing the
normal value.

the purpose of

for

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should be

(27) At the definitive stage, it was considered that the meth-
odology
to ensure
consistency between exporting producers granted MET
and other producing exporters. Accordingly, the groups
of PCNs on MgO basis were also applied to calculate the
normal value for producers granted MET.

streamlined so as

5. Export price

(28) One exporting producer claimed that errors were made
in the level of SG & A and profit of a related importer.

(29) After verification, it was found that the claim with regard
to the SG & A could be accepted as a clerical error
occurred at the provisional stage. However, the claim
related to the level of the profit was not founded as
the level used in the calculations was based on that of
unrelated importers and traders verified during the inves-
tigation. The claim on the profit was therefore rejected.

(30) Another exporting producer claimed that

the profit
margins deducted for
related companies were
its
excessive and provided evidence that the actual profit
was at a lower level. It was also claimed that the profit
should be deducted once for the last related trader only
it
and not for intermediate related traders. In addition,
the
the deduction of
claimed that
export VAT should be based on the cost of
raw
materials and not on the export price of the goods.

the calculation of

(33) However, the companies mentioned did not provide any
new evidence that would lead to the conclusion that they
are related in the sense of
In
addition, the Community importer had a similar rela-
tionship with another Chinese exporter, but did not
claim the same relationship for this exporter. On this
there is no reason to change the provisional
basis,
conclusion that
these companies are not related. The
claim is therefore rejected.

the basic Regulation.

(34) At the provisional stage, the export price for companies
granted MET was established at the level of PCN but for
companies granted IT groupings to PCNs on MgO basis
were applied to the export price. At the definitive stage,
the Commission streamlined the methodology to ensure
consistency and groupings to PCNs on MgO basis were
applied to calculate the export price for producers
granted MET as well.

(35)

In the absence of any other comments, the provisional
findings set out in recitals 59 and 60 of the provisional
Regulation are hereby confirmed.

6. Comparison

(36)

In the absence of substantiated claims, the provisional
findings as described in recitals 61 and 62 of the provi-
sional Regulation are herewith confirmed.

(31)

Based on the new evidence provided, the profit margin
for the related traders was corrected on the basis of data
from other unrelated traders. The claim concerning the
export VAT, however, was rejected as the company did
not provide any evidence supporting its claim.

7. Dumping margin

7.1. For the cooperating exporting producers granted MET/IT

(37)

The definitive weighted average dumping margins
expressed as a percentage of
the CIF Community
frontier price, duty unpaid, are:

(32)

revised accordingly.

Contrary to its position at provisional
stage, one
exporting producer granted IT claimed at a very late
related to a
stage in the investigation that
it was
its dumping
Community importer and requested that
margin be
its
dumping margin should be calculated starting from the
resale price of the allegedly related importer. Although
the exporting producer and the Community importer
acknowledged that they did not have any legal link to
clearly establish their relationship, they claimed that they
should nevertheless be considered related because of their
long term cooperation in the business of magnesia
bricks.

claimed that

It

Liaoning Mayerton Refractories Co. Ltd

Yingkou Sanhua Refractory Materials Co. Ltd

Yingkou Guangyang Refractories Co. Ltd

Yingkou Kyushu Refractories Co. Ltd

2,7 %

8,1 %

18,6 %

18,6 %

Dashiqiao Sanqiang Refractory Materials Co. Ltd

27,7 %

Yingkou Qinghua Refractories Co. Ltd

22,2 %

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7.2. For all other exporting producers

(38) Due to new data made available on import quantities, the
level of cooperation was recalculated and found to be
it
higher than provisionally established. None the less,
is to be confirmed that the level of cooperation was low.

(39) At

the provisional

stage the country-wide dumping
margin was set at the level of the highest margin estab-
lished for the cooperating producers. However, at the
definitive stage the calculation methodology of
the
country-wide margin was
revised in line with the
consistent practice of the Commission in case of low
cooperation. The country-wide dumping margin was
therefore re-assessed as a weighted average of:

(a)

the dumping margin found for the representative
group of
the product concerned exported by the
only cooperating exporting producer not granted
MET or IT; and

(b) the highest dumping margin found for the represen-
tative group of the product concerned exported by
the same cooperating exporter.

(40) Accordingly, the country-wide dumping margin was defi-

nitively set at 51,5 %.

D. INJURY

1. Community production

(41)

In the absence of any new comments submitted, the
provisional
findings concerning the total Community
production as set out in recital 68 of the provisional
Regulation are hereby confirmed.

it

the

entity

still produces

that RHI’s Community production company was a
from its Chinese production
separate
legal
company. Even if RHI
is a global group and has a
production site in the PRC under a separate legal
its
entity,
magnesia bricks, which are subsequently sold on the
Community market, at its Community production sites.
As only a
sales on the
Community market are imported from the PRC, RHI is
not shielded from the dumped imports and the economic
benefit it might obtain from these imports,
if any, are
minimal. Therefore, there is no compelling reason why
RHI should be excluded from the Community industry.

small proportion of

vast majority of

its

(44) Moreover,

Furthermore,

it was found that any comparison with the
situation of Refratechnik is not appropriate. First of all,
not being either a complainant or
supporting the
complaint, Refratechnik could not be included in the
definition of Community industry.
in
contrast to the RHI situation discussed above, although
these
Refratechnik imported similar absolute volumes,
represented a much larger percentage of their sales on
the Community market. It is recalled that (i) almost half
of Refratechnik’s sales on the Community market were
produced in the PRC; (ii) the core business as regards the
product concerned had partly relocated to China, and (iii)
Refratechnik clearly benefited from the sales of
the
imported products. In all of these elements Refratechnik
was substantially different from RHI. For these reasons,
the claims had to be rejected and it is confirmed that RHI
is part of the Community industry.

(45)

In the absence of any other comments submitted, the
definition of
in
recitals 69 to 78 of
the provisional Regulation is
hereby confirmed.

the Community industry as set out

2. Definition of the Community industry

(46)

(42)

interested parties argued that

the Community
Several
producer RHI should be excluded from the Community
industry, contrary to the conclusion in the provisional
Regulation. These parties
core
business is not situated in the Community and that its
volume of imports in the IP is almost the same as that of
the Refratechnik group (Refratechnik), another importing
producer which was excluded from the Community
industry.

claimed that RHI’s

3. Community consumption

In the absence of any comments submitted, the calcu-
lation of Community consumption as set out in recitals
the provisional Regulation is hereby
79 to 82 of
confirmed.

4. Imports into the Community from the PRC

4.1. Market share of imports concerned

(43)

It is recalled from recital (70) in the provisional Regu-
lation that RHI’s biggest production sites as regards the
product concerned as well as its headquarters and R & D
centre are situated in the Community. Also it was clear

(47)

In the absence of any comments submitted, the findings
imports concerned as set out in
on market share of
recitals 83 and 84 of
the provisional Regulation are
hereby confirmed.

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(48)

(49)

4.2. Prices of imports and undercutting

(55)

It is recalled that, as set out in recitals 85 to 87 of the
provisional Regulation, a comparison was made between
the Community industry and
the ex-works prices of
those of
country
the
concerned at cif Community frontier level.

exporting producers

in the

recital

(86) below,

Bearing in mind the revised methodology for under-
selling margins at
it was also
considered appropriate to similarly revise the under-
cutting methodology. The revised undercutting margins
for the exporting producers which were granted MET or
IT were in the range of 13 to 37 %. The average under-
cutting was calculated at 23,9 %.

economic

the
In addition, when analysing the development of
Community industry’s
indicators between
2001 and the IP, one must bear in mind that
the
Community industry had already restructured in order
to decrease overcapacities and in order to rationalise in
the 1990’s. At the beginning of the period considered
(2001)
stable
economic position and making reasonable profits.
However,
substantially
decreasing developments in profitability of Community
sales
the provisional Regulation) and
decreasing average sales prices (recital 94 of the provi-
sional Regulation), the situation deteriorated significantly
between 2001 and the end of the IP.

the Community industry was

seen from the

(recital 98 of

can be

in a

as

(50) Apart from the adjustments made as set out in recital 49,
and in the absence of any other comments, recitals 85 to
87 of the provisional Regulation concerning prices of
imports and undercutting are confirmed.

5. Situation of the Community Industry

(51)

(52)

(53)

It is recalled that in recital 111 of the provisional Regu-
lation,
the
Community industry had suffered material injury within
the meaning of Article 3 of the basic Regulation.

provisionally

established

it was

that

Several interested parties questioned the interpretation of
the figures relating to the situation of the Community
industry as presented in recitals 88 to 111 of the provi-
sional Regulation. They stated that the figures did not
show any material
injury. These parties claimed that
they
the Community industry is making profits,
are competitive and that their business perspectives are
very positive. This should lead to the conclusion that the
Community industry has not suffered material injury.

that

It is noted that none of the interested parties questioned
the figures relating to the situation of the Community
industry as such, but rather their interpretation. Indeed,
when looking solely at certain volume indicators such as
production, market share or sales on the Community
market,
these do not
show a very negative trend.

isolated from other indicators,

(54) However,

it

the Community industry
is recalled that
the period
responded to the dumped imports over
considered by reducing its prices in order to maintain
its volume of sales on the Community market. This
caused a large fall in profitability. In such circumstances,
the injury is consequently reflected particularly in prices
and profitability.

(56) As regards the slightly improving situation in the IP, it is
recalled that this was achieved by a further reduction in
costs and that the improved situation in the IP was still
far from the level that could be achieved in the absence
of dumped imports (recital 99 of the provisional Regu-
lation).

(57)

In the absence of any other comments submitted in
addition to the above, the findings in respect of the
in
situation for the Community industry, as set out
recitals 88 to 111 of
the provisional Regulation, are
hereby confirmed.

6. Conclusion on injury

(58)

In view of the above, and in the absence of any other
comments, it is confirmed that the Community industry
has suffered material injury within the meaning of Article
3 of the basic Regulation.

E. CAUSATION

1. Impact of the imports from the PRC

injury (recital

(59) One interested party alleged that the imports did not
have an effect on the Community industry as market
share and sales volume were stable during the period
considered. However, it was found that the Community
industry suffered material
(58)) and that
they could only keep their market share at the expense
of substantial price reductions which led to a 55 % fall in
coincided with the
profitability. This development
increased imports.
import volumes
from the PRC increased by around 150 % and their
market share increased by 118 % during the period
considered. In addition, import prices from the PRC fell
by 22 % and substantial price undercutting was taking
place (recital 49). Therefore, and since the claim was not
further substantiated, this argument had to be rejected. In
the absence of any other comments,
the findings of
recital 113 are hereby confirmed.

is recalled that

It

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2. Impact of developments within the steel industry

5. Impact of exports by the Community industry

(60) One interested party alleged that the technical progress
resulting in longer lasting bricks and an efficient steel
making process were causing the injury suffered by the
Community industry and that this was not taken into
account sufficiently in the provisional Regulation.

(61)

It is recalled in this respect that, based on data obtained
from the user industry, the decrease of magnesia bricks
used per tonne of steel produced was calculated at
the provisional
around 2 % in the IP (recital 116 of
Regulation). In addition,
it was found that Community
consumption was stable during the period considered
(recital 82 of the provisional Regulation). On the basis
of these figures, it can be concluded that the technical
progress could only have had a minor impact, if any, on
the situation of Community industry. The argument
should therefore be dismissed.

3. Impact of currency changes

(62) Another factor which was claimed to have caused the
injury is
the
dollar (which is linked to the Chinese RMB) against the
Euro. The dollar depreciation against the Euro amounted
to around 31 % in the period considered.

the falling currency exchange rate of

(63)

rate did not have

It is recalled that dumping was established comparing all
prices on a RMB basis and therefore the currency
exchange
an influence on the
dumping margins found. As regards the injury margins,
the dollar depreciation may have encouraged increased
exports to the Community of the product concerned.
irrespective of whether the low prices may
However,
also be somewhat due to currency movements, the full
difference between the prices of the Community industry
and those of the exporting producers (see recital 49)
constitutes the level of undercutting which is to be
taken into account. The magnitude of
injury
margins in this case show that the dollar depreciation
could hardly have contributed to the injury suffered by
the Community industry.

the

(65) One interested party claimed that the loss in exports due
to the currency fluctuation of the US dollar and the
resulting reduction in production caused the injury. It
is, however, recalled that exports only fell slightly over
the period considered and that
their profitability was
higher
the sales on the Community
market (recital 122 of the provisional Regulation). It is,
therefore, highly unlikely that these exports could have
had a substantial negative impact on the Community
industry.

than that of

6. Impact of other factors

(66) One interested party alleged that the disadvantage of the
Community industry, due to the fact that the magnesia
resources are mainly located in the PRC, was a cause of
the injury. While it is true that the mines for the main
raw material are situated in the PRC leading to a cost and
a strategic advantage for the producers in the PRC, such
differences, which result in cost advantages, have in any
event been taken into account in price comparisons.

7. Conclusion on causation

(67)

In the absence of any other comments on causation, the
conclusions drawn in this respect in recitals 112 to 124
of the provisional Regulation are hereby confirmed.

F. COMMUNITY INTEREST

1. Interest of the Community industry

(68)

In the absence of any comments submitted with respect
to the interest of the Community industry, the findings
as set out in recitals 125 to 129 of the provisional
Regulation are hereby confirmed.

2. Interest of importers

(69)

4. Impact of

imports to the Community by the

Community industry

(64) One interested party argued that the imports from the
PRC by RHI were causing the injury found. It should be
noted that only 5 % of the total sales volume of RHI was
imported from the PRC (recital 121 of the provisional
Regulation) and that these imports were sold at prices
comparable to those of the Community industry in the
Community. It is, therefore, concluded that these imports
did not cause the injury found.

Two unrelated importers and one related importer
provided submissions as a result of
the provisional
disclosure. A further importer which had not cooperated
in the proceeding also submitted comments opposing the
provisional measures on the grounds that they would
have a negative impact on their turnover, employment
and profitability because the product concerned repre-
sented a substantial proportion of their business. These
four importing companies represented around 35 % of
total imports in the IP. The companies did not, however,
present
the
Community interest conclusions as shown in the provi-
sional Regulation.

any new evidence

could change

that

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Official Journal of the European Union

12.10.2005

(70)

Further arguments submitted by the importers which
coincided with those of the users are discussed under
recitals 73 to 82.

(71)

In the absence of any other comments, the findings set
out in recitals 130 to 132 of the provisional Regulation
concerning importers’ interests are confirmed.

(76)

3. Interest of suppliers

(72)

In the absence of any comments submitted with respect
to the interest of the Community suppliers, the findings
as set out in recital 133 of the provisional Regulation are
hereby confirmed.

(73)

(74)

4. Interest of users

4.1. Market structure

The majority of users, importers and exporting producers
reiterated the argument that measures would strengthen a
market structure consisting of a few important producers
competition. Although no new
and thus
arguments were made in this respect, some additional
material was provided to support this claim.

reduce

It is recalled that the largest producer on the Community
market did not have a majority market share in the IP for
the product concerned (recital 141 of the provisional
Regulation). This share was calculated on the basis of
verified data. It was contested by one interested party,
but no substantiated evidence was given that the market
share is higher than the above figure. In addition, no
substantial evidence of any anti-competitive behaviour
the large players on the Community market has
of
been provided by any of the interested parties which
could support
the allegation. Moreover, several other
Community producers produced the product concerned.
the finding
In the absence of any other comments,
described in recitals 140 and 141 of
the provisional
Regulation are therefore confirmed.

(77)

(78)

number of available sources of supply in the PRC and in
the Community makes it unlikely that any shortage of
supply
therefore
unfounded.

occur. This

argument

could

is

It was also claimed that raw material suppliers may be
forced to reduce exports to the Community due to
factors such as electricity shortages in the PRC, where
the majority of magnesite raw materials are sourced. It
was alleged that consequently prices for magnesite started
leading to a shortage of the raw
to increase in 2005,
material on the Community market.
is clear that
supply by the PRC of the raw materials necessary to
produce magnesia bricks may vary depending on
factors and may lead to increased prices for
internal
equally on
this will
magnesite. However,
Community producers which use magnesite of Chinese
origin as it will impact on Chinese producers of magnesia
bricks. These arguments are therefore not relevant for
assessing the impact of the imposition of anti-dumping
measures.

impact

It

industry also expressed its

The user
concern that
measures would lead to a substantial cost increase for
magnesia bricks and that
this should be taken into
account when considering the cost effect of measures
industry did
industry. However, the steel
on the steel
that magnesia bricks
not generally question the fact
account
their total
costs (recital 143 of the provisional Regulation). Never-
theless, they pointed out that consideration should be
the product
given to the fact
is of strategic
importance;
failure of magnesia bricks
could cause substantial additional costs; and (iii) prices
are likely to increase considerably due to other factors.

for significantly less than 1 % of

that
(i)
technical

(ii)

It was already noted in the provisional Regulation in
refractories are a strategically very
recital 135 that
important consumable material for the steel industry as
all steel has to pass through its converters, furnaces and
ladles. Consequently,
could cause
refractory
interrupted production,
material damage in terms of
repairs and safety. Therefore, sufficient supply in high
quality,
long lasting bricks, and good technical
support is a very important factor for the steel industry.

failure

i.e.

4.2. Shortage of supply and increased costs

(75)

the measures would lead to a
It was claimed that
shortage of supply of
the product concerned in the
Community market as the exporting producers would
stop exporting it
to the
measures. This argument was not substantiated by any
documentary evidence. It should be noted here that the

to the Community due

or

otherwise

(79) Although it important to consider whether a material is
in
strategically
comparison to the total cost of production is also a
substantial
issue in a Community interest analysis.
Hence, the undisputed fact that the cost of magnesia
bricks is less than 1 % of the total cost of production
of steel remains a decisive factor.

important,

cost

its

12.10.2005

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Official Journal of the European Union

L 267/9

(80)

(81)

In this respect, it should also be pointed out that it is not
the purpose of the anti-dumping measures to prohibit
to increase prices to a sustainable, non-
imports but
the measures
injurious level.
the level of
In view of
it is likely
(with a weighted average of around 20 %),
that Chinese non-injurious imports will still enter the
market and provide for a valid competition. Other
third countries
sources of
supply, even if in the IP these were at low volumes.

also provided possible

a

is

if measures are not
It should also be recalled that
the
transfer of
a
imposed,
risk of
there
Community production of
the product concerned to
the PRC in the long-term. Bearing in mind the lack of
important producers in other third countries and that the
product concerned is of strategic importance for the steel
industry, such a reliance on Chinese imports is clearly
not a viable scenario for the Community steel industry.
This consideration of the provisional Regulation (recital
138 of the provisional Regulation) was doubted by an
importer and one steel company. It was, however, not
contested by the large majority of the steel
industry,
leading to the conclusion that it is also in their interest
that a viable magnesia bricks production rests within the
Community.

(85)

(86)

G. DEFINITIVE ANTI-DUMPING MEASURES

1. Injury elimination level

In the provisional Regulation, the injury elimination level
was calculated using 5 groups of PCNs depending on the
MgO content of the bricks. This methodology was first
mentioned in the questionnaires sent out at the initiation
of this investigation and interested parties were invited to
comment. Adjustments
to this methodology were
claimed and investigated as set out in recitals 86 to 88.

In the provisional Regulation a standard adjustment was
made to the cif export prices in order to cover post
trade.
importation costs,
Subsequent
these
adjustments should be revised in order to accurately
reflect the costs associated with each channel of sale.
The injury elimination margins calculated are shown at
recital (90).

importer costs and level of
that

investigation

shown

has

(82)

In the absence of any further comments submitted with
respect of the claimed disruption in the market structure
and increased costs, the findings as set out in recitals 140
the provisional Regulation are hereby
to 143 of
confirmed.

is true that

(87) A users’ association claimed that the difference in costs
for resin or pitch, which is used as binder for magnesia
bricks was not taken into account in the calculations.
While it
the costs for pitch, which is
mainly used in the Community production are lower
than for resin,
it has been claimed in a substantiated
way by the Community producers that the higher costs
for the slightly more elaborated production process for
pitch absorb the difference. No substantiated evidence
has been provided in this investigation as to disprove
these findings. This claim was therefore rejected.

4.3. Conclusion on users’ interest

(83)

In the absence of any further comments submitted with
respect of the users’ interest, the findings as set out in
recitals 134 to 144 of the provisional Regulation are
hereby confirmed.

(88)

5. Conclusion on Community Interest

(84)

the conclusions drawn in the provisional
In view of
the submissions
Regulation and taking into account
it is concluded that there
made by the various parties,
are no compelling reasons not to impose definitive anti-
dumping measures against dumped imports of magnesia
bricks originating in the PRC. The conclusion as set out
in recitals 145 and 146 of the provisional Regulation is
therefore confirmed.

Furthermore, it was claimed by one user that a difference
existed within the PCN groupings outlined in recital (85)
between bricks used in converters and bricks used in
ladles. The Community industry sold a higher percentage
of the higher priced converter bricks than the exporting
producers in the PRC. The user argued that this issue
should be better
reflected in the price comparisons.
However,
this claim was not substantiated as it was
not made clear which PCNs were affected and to what
extent. This claim was therefore rejected.

(89)

It is recalled that the non-injurious price was calculated
using a profit margin of 8 %. This figure was not
contested by any interested parties and it is therefore
definitively confirmed.

L 267/10

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Official Journal of the European Union

12.10.2005

(90)

The definitive weighted average injury margins
companies granted either IT or MES are:

for

(92)

In the absence of any further comments, other than the
amendments discussed above, the methodology set out in
recitals 147 to 152 of
the provisional Regulation is
hereby confirmed.

Dashiqiao Sanqiang Refractory Materials Co. Ltd

42,5 %

Liaoning Mayerton Refractories Co. Ltd

Yingkou Guangyang Refractories Co. Ltd

Yingkou Kyushu Refractories Co. Ltd

Yingkou Qinghua Refractories Co. Ltd

Yingkou Sanhua Refractory Material Co. Ltd

22,7 %

27,7 %

27,7 %

15,3 %

48,2 %

(93)

2. Definitive measures

In the light of the foregoing and in accordance with
Article 9(4) of the basic Regulation, a definitive anti-
dumping duty should be imposed at the level of the
dumping margin or at the level of the injury margin
than the
calculated in all cases, where it
dumping margin found.

lower

is

(91)

Following the various adjustments mentioned above that
have been made to the normal value and export prices,
the injury elimination level established on the basis of
data of cooperating companies not granted MET or IT
and non-cooperating companies was found to be 39,9 %.

(94) On the basis of the above, the definitive duties should be

as follows:

Company

Injury elimination
margin

Dumping margin

Proposed anti-dumping
duty

Dashiqiao Sanqiang Refractory Materials Co. Ltd

Liaoning Mayerton Refractories Co. Ltd

Yingkou Guangyang Refractories Co. Ltd

Yingkou Kyushu Refractories Co. Ltd

Yingkou Qinghua Refractories Co. Ltd

Yingkou Sanhua Refractory Material Co. Ltd

All other companies

42,5 %

22,7 %

27,7 %

27,7 %

15,3 %

48,2 %

39,9 %

27,7 %

2,7 %

18,6 %

18,6 %

22,2 %

8,1 %

51,5 %

27,7 %

2,7 %

18,6 %

18,6 %

15,3 %

8,1 %

39,9 %

(95)

duty

applicable

country-wide

The individual anti-dumping duty rates specified in this
Regulation were established on the basis of the findings
of the present investigation. Therefore, they reflect the
situation found during that
investigation with respect
to these companies. These duty rates (as opposed to
other
the
companies’) are thus exclusively applicable to imports
of products originating in the country concerned and
produced by the
specifically mentioned.
Imported products produced by any other company
not specifically mentioned by its name and address in
the operative part of this Regulation,
including entities
related to those specifically mentioned, cannot benefit
from these rates and shall be subject to the duty rate
applicable to ‘all other companies’.

companies

‘all

to

(96) Any claim requesting the application of these individual
anti-dumping duty rates (e.g following a change in the
name of the entity or following the setting-up of new
production or sales entities) should be addressed to the
Commission (1) forthwith with all relevant information,

(1) European Commission, Directorate-General for Trade, Direction B,

Office J-79 5/16, B-1049 Brussels.

for example,

in particular any modification in the company’s activities
linked to production, domestic and export sales asso-
that name change or that
ciated with,
change in the production and sales entities.
If appro-
priate, the Commission will, after consultation of the
the
Advisory Committee, propose the amendment of
Regulation
of
list
companies benefiting from individual duty rates.

accordingly

updating

the

by

3. Undertakings

(97) During the course of the investigation,

five exporting
producers in the PRC expressed interest in offering an
undertaking. However, only three exporting producers
finally offered price undertakings in accordance with
Article 8(1) of the basic Regulation.

(98) One of the companies has not cooperated in the inves-
this undertaking offer had to be

tigation. Therefore,
rejected.

12.10.2005

EN

Official Journal of the European Union

L 267/11

(99) Another company which had been granted individual
treatment offered a joint undertaking together with an
unrelated Swiss based trader. A joint undertaking offer
with an unrelated company has normally to be rejected
since the presence of the unrelated trader renders the
monitoring of financial flows impracticable. In addition,
the unrelated trader is either directly or indirectly related
to most of its EU-clients. All this leads to a very complex
corporate structure that would not allow to efficiently
monitor the financial flows and thus the prices finally
paid. Therefore, such an undertaking is considered as
being neither enforceable nor effective. Thus, the offer
had to be rejected.

(103)

circulation, i.e. without collection of anti-dumping duty,
and one or several conditions of that undertaking are
found to have been violated.

In the event of a breach, the anti-dumping duty may be
recovered, provided that the Commission has withdrawn
the acceptance of the undertaking in accordance with
Article 8(9) of the basic Regulation, by referring to that
the case may be, by
particular
declaring the relevant undertaking invoice as invalid.
Therefore, pursuant to Article 14(7) of the basic Regu-
lation,
inform the
indications of a
Commission immediately whenever
violation of the undertaking are found.

transaction and, as

authorities

customs

should

(100) Another exporting producer, which had been granted
treatment, offered together with its related
individual
trader in the PRC, a joint price undertaking combined
with a quantitative ceiling. They have agreed to sell the
product concerned within the quantitative ceiling at or
above price levels which eliminate the injurious effects of
dumping. Imports beyond the quantitative ceiling will be
subject to anti-dumping duties. The companies will also
provide the Commission with regular and detailed infor-
mation concerning their exports to the Community,
meaning that the undertaking can be monitored effec-
sales
tively by the Commission.
Furthermore,
structure
the
such
Commission considers that
the risk of circumventing
the agreed undertaking is limited.

companies

the
that

these

of

is

for

release for

(101) To further enable the Commission to effectively monitor
the compliance of the companies with the undertaking,
when the request
free circulation is
presented to the relevant customs authority, exemption
from the anti-dumping duty is to be conditional on the
presentation of a commercial invoice containing at least
the elements listed in the Annex. This level of infor-
mation is also necessary to enable customs authorities
to ascertain with sufficient precision that shipments
correspond to the commercial documents. Where no
is presented, or when it does not
such invoice
correspond to the product presented to customs,
the
appropriate rate of anti-dumping duty will
instead be
payable.

(102) To further ensure the effective respect of the undertaking,
the importers should be made aware that any violation of
the undertaking may lead to the retrospective application
of the anti-dumping duty for the relevant transactions.
Therefore, it is necessary to implement legal provisions
providing for the incurrence of a customs debt at the
level of the appropriate anti-dumping duty whenever one
or more conditions for the exemption are not respected.
A customs debt should therefore be incurred whenever
the declarant has chosen to release the goods for free

(104)

In view of this, the offer of an undertaking is therefore
considered acceptable and the companies concerned have
been informed of the essential facts, considerations and
obligations upon which acceptance is based.

(105)

It should be noted that in the event of a breach or
withdrawal of the undertaking or a suspected breach,
an anti-dumping duty may be imposed, pursuant
to
Article 8(9) and (10) of the basic Regulation.

(106) The above undertaking is accepted by Commission

Decision 2005/704/EC (1).

4. Collection of provisional duties

(107)

the amounts secured by way of

In view of the magnitude of the dumping margins found
and in the light of the level of the material injury caused
it is considered necessary
to the Community industry,
that
the provisional
imposed by Regulation (EC) No
anti-dumping duty,
552/2005, should be collected at the rate of the duty
definitely imposed. Where the definitive duties are higher
than the provisional duties, only the amounts secured at
the level of the provisional duties should be definitively
collected,

HAS ADOPTED THIS REGULATION:

Article 1

bonded,

is hereby

A definitive
of
imports

anti-dumping duty
1.
on
chemically
bricks, whose magnesia component contains at
MgO, whether
not
ting in the People’s Republic of China,
codes
(TARIC
codes
6815 99 90 20).

imposed
unfired magnesia
least 80 %
origina-
falling within CN
ex 6815 99 90
and

containing magnesite,

ex 6815 99 10 and

6815 91 00 10,

ex 6815 91 00,

6815 99 10 20

or

(1) See page 27 of the present Official Journal.

L 267/12

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Official Journal of the European Union

12.10.2005

The rate of the definitive anti-dumping duty applicable to
2.
the net, free-at-Community frontier price, before duty, of the
products described in paragraph 1, shall be as follows:

Manufacturer

Liaoning Mayerton Refractories Co. Ltd, Jinqiao
Development
Liaoning
Province, 115100, PRC

Zone, Dashiqiao,

Anti-
dumping
duty

TARIC
additional
code

2,7 %

A632

Yingkou Sanhua Refractory Material Co. Ltd,
Gangdu Management Zone, Dashiqiao City,
Liaoning Province, 115100, PRC

8,1 %

A633

Kyushu

Yingkou
Houlashan,
Liaoning Province 115100, PRC

Ltd,
Jinqiao Village, Dashiqiao City,

Refractories

Co.

18,6 %

A634

Yingkou Guangyang Refractories Co.
Houlashan,
Liaoning Province, 115100, PRC

Ltd,
Jinqiao Village, Dashiqiao City,

18,6 %

A635

Ltd,
Yingkou Qinghua
Qinghuayu
District,
Dashiqiao City, Liaoning Province, 115100,
PRC

Refractories
Qinghua

Village,

Co.

Dashiqiao Sanqiang Refractory Materials Co.
Ltd, Biangan Village, Nanlou Economic Devel-
Liaoning
opment
Province, 115100, PRC

zone, Dashiqiao

City,

15,3 %

A636

27,7 %

A638

All other companies

39,9 %

A999

3.
Notwithstanding the provisions in paragraph 2, the defi-
nitive duty shall not apply to imports declared for release into
free circulation in accordance with the provisions of Article 2.

— such imports are accompanied by a valid undertaking
invoice
and the declaration

invoice. An undertaking invoice is a commercial
containing at
stipulated in the Annex; and

elements

least

the

— the goods declared and presented to customs correspond
precisely to the description on the undertaking invoice.

2.
A customs debt shall be incurred at the time of acceptance
of the declaration for release into free circulation whenever it is
established,
in respect of goods described in Article 1 and
exempted from anti-dumping duty under the conditions listed
in paragraph 1, that one or more of such conditions are not
fulfilled. The second condition set out in paragraph 1 shall be
considered as not being fulfilled where the undertaking invoice
is found not to comply with the provisions of the Annex or
to be authentic or where the Commission has
found not
withdrawn the acceptance of
to
Article 8(9) of Regulation (EC) No 384/96 in a Regulation or
Decision which refers to a particular transaction and declares
the relevant undertaking invoice(s) as invalid.

the undertaking pursuant

3.
Importers shall accept as a normal trade risk that the non-
fulfilment, by any party, of one or more of the conditions listed
in paragraph 1 and further defined in paragraph 2 may give rise
to a customs debt incurred under Article 201 of Council Regu-
lation (EEC) No 2913/92 of 12 October 1992 establishing the
Community Customs Code (1). The customs debt incurred shall
be recovered upon withdrawal by the Commission of
the
acceptance of the undertaking.

Unless otherwise

4.
concerning customs duties shall apply.

specified,

the provisions

in force

Article 3

Article 2

1.
Imports declared for release into free circulation which are
invoiced by companies from which undertakings are accepted
by the Commission and whose names are listed in Decision
2005/704/EC, establishing the Community Customs Code as
from time to time amended, shall be exempt from the anti-
dumping duties imposed by Article 1, on condition that:

ex 6815 99 90

Amounts secured by way of provisional anti-dumping duty
pursuant
to Regulation (EC) No 552/2005 on imports of
chemically bonded, unfired magnesia bricks, whose magnesia
least 80 % MgO, whether or not
component contains at
containing magnesite, originating in the People’s Republic of
China, falling within CN codes ex 6815 91 00, ex 6815 99 10
and
6815 91 00 10,
6815 99 10 20 and 6815 99 90 20) shall be definitely col-
lected in accordance with the rules
set out below. The
amounts secured in excess of
the definitive rate of anti-
dumping duties shall be released. Where the definitive duties
are higher than the provisional duties, only the amounts secured
the provisional duties shall be definitively
at
collected.

the level of

(TARIC

codes

— they are manufactured, shipped and invoiced directly by the
said companies to the first independent customer in the
Community; and

(1) OJ L 302, 19.10.1992, p. 1. Regulation as last amended by Regu-
lation (EC) No 648/2005 of the European Parliament and of the
Council (OJ L 117, 4.5.2005, p. 13).

12.10.2005

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Official Journal of the European Union

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

Article 4

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

Done at Luxembourg, 6 October 2005.

For the Council
The President

A. DARLING

L 267/14

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Official Journal of the European Union

12.10.2005

ANNEX

invoice accompanying the company’s sales to the
The following elements shall be indicated in the commercial
Community of chemically bonded, unfired magnesia bricks, whose magnesia component contains at least 80 % MgO,
whether or not containing magnesite, which are subject to an Undertaking:

1. The heading ‘COMMERCIAL INVOICE ACCOMPANYING GOODS SUBJECT TO AN UNDERTAKING’.

2. The name of the company mentioned in Article 1 of the Decision 2005/704/EC, accepting the undertaking, issuing

the commercial invoice.

3. The commercial invoice number.

4. The date of issue of the commercial invoice.

5. The TARIC additional code under which the goods on the invoice are to be customs cleared at the Community

frontier.

6. The exact description of the goods, including:

— product code number (PCN) used for the purposes of the investigation and the undertaking (e.g. PCN 1, PCN 2,

etc.),

— plain language description of the goods corresponding to the PCN concerned,

— company product code (CPC) (if applicable),

— CN code,

— quantity (to be given in tonnes).

7. The description of the terms of the sale, including:

— price per tonne,

— the applicable payment terms,

— the applicable delivery terms,

— total discounts and rebates.

8. Name of the company acting as an importer in the Community to which the commercial invoice accompanying goods

subject to an undertaking is issued directly by the company.

9. The name of the official of the company that has issued the invoice and the following signed declaration:

‘I, the undersigned, certify that the sale for direct export to the European Community of the goods covered by this
invoice is being made within the scope and under the terms of the undertaking offered by [COMPANY], and accepted
by the European Commission through Decision 2005/704/EC, I declare that the information provided in this invoice
is complete and correct.’