Council Regulation (EC) No 239/2008 of 17 March 2008 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of coke of coal in pieces with a diameter of more than 80 mm (Coke 80+) originating in the People’s Republic of China
Date: 2008-03-18
Institutions: Council of the European Union
Subjects: China, anti-dumping duty, anti-dumping legislation, coal industry, coke, import, import (EU)

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Official Journal of the European Union

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COUNCIL REGULATION (EC) No 239/2008

of 17 March 2008

imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on
imports of coke of coal in pieces with a diameter of more than 80 mm (Coke 80+) originating 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 9 thereof,

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

Whereas:

(1)

(2)

A. PROVISIONAL MEASURES

On 20 December 2006, the Commission published a
notice (2)
initiating an anti-dumping proceeding on
imports into the Community of coke of coal in pieces
with a diameter of more than 80 mm (Coke 80+) orig-
inating in the People’s Republic of China (the PRC). On
the Commission, by Regulation
19 September 2007,
(EC) No 1071/2007 (3)
(the provisional Regulation)
imposed a provisional anti-dumping duty on imports
of Coke 80+ originating in the PRC.

the

around 40 % of

It is noted that the proceeding was initiated following a
complaint lodged by three Community producers, rep-
resenting
total Community
production of Coke 80+. It is noted that an understated
figure of ‘more than 30 %’ was mentioned in recital 2 of
the provisional Regulation; however,
following further
investigation it was found that the complainants in fact
represented around 40 % of
total Community
production.

the

(3)

As set out in recital 12 of the provisional Regulation, the
investigation of dumping and injury covered the period

from 1 October 2005 to 30 September 2006 (investi-
gation period or IP). With respect to the trends relevant
for the injury assessment, the Commission analysed data
covering the period from 1 January 2003 to the end of
the IP (period considered).

B. SUBSEQUENT PROCEDURE

Following the imposition of provisional anti-dumping
duties on imports of Coke 80+ originating in the PRC,
several interested parties submitted comments in writing.
The parties who so requested were also granted the
opportunity to be heard.

The Commission continued to seek and verify all infor-
mation it deemed necessary for its definitive findings. In
particular, the Commission intensified the investigation
with regard to Community interest aspects.
In this
connection, one additional verification visit was carried
out after the imposition of the provisional measures at
the following company:

— La Fonte Ardennaise, Vivier-Au-Court, France — user

in the Community.

In addition, an information-gathering visit was made to
the European Foundry Association (CAEF) in Düsseldorf,
Germany. In order to clarify certain alleged implemen-
tation problems, a visit was also carried out to customs
authorities in Antwerp, Belgium as well as in Duisburg,
Germany.

the essential

All parties were informed of
facts and
considerations on the basis of which it was intended to
recommend the imposition of a definitive anti-dumping
duty on imports of Coke 80+ originating in the PRC and
the definitive collection of the amounts secured by way
of the provisional duty. They were also granted a period
within which
representations
subsequent to this disclosure.

could make

they

(4)

(5)

(6)

(7)

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

(EC) No 2117/2005 (OJ L 340, 23.12.2005, p. 17).

(8)

(2) OJ C 313, 20.12.2006, p. 15.
(3) OJ L 244, 19.9.2007, p. 3.

The oral and written comments
submitted by the
interested parties were considered and, where appro-
priate, the findings were modified accordingly.

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L 75/23

C. PRODUCT CONCERNED AND LIKE PRODUCT

E. INJURY

(9)

In the absence of any comments concerning the product
concerned and like product, recitals 13 to 17 of the
provisional Regulation are hereby confirmed.

1. Community production and Community industry

(16)

In the absence of any comments concerning the defi-
nition of Community production and Community
industry, recitals 34 and 35 of the provisional Regulation
are hereby confirmed.

(10)

In view of the above, it is definitively concluded that the
product concerned and Coke 80+ produced and sold in
the analogue country,
the USA, as well as the one
produced and sold by the Community industry on the
Community market are alike, within the meaning of
Article 1(4) of the basic Regulation.

D. DUMPING

(11)

In the absence of any comments concerning the level of
cooperation, the selection of the analogue country and
the determination of normal value, recitals 18 to 28 of
the provisional Regulation are hereby confirmed.

(12) With reference to price comparison, the sole cooperating
exporter objected to the rejection by the Commission of
its claim relating to post-screening operations in the
dumping calculation, arguing that a similar claim had
been taken into consideration for the purpose of injury
calculations. The claim was therefore accepted and an
additional adjustment was made to the normal value.

(13)

The estimation of the value of the adjustment made for
differences in physical characteristics at provisional stage
has been reviewed to reflect the value of the differences
in calorific value indicators and size spread between the
product produced in the analogue country and the
Chinese exported product.

(14)

In the absence of any other comments in this respect,
recitals 29 to 31 of the provisional Regulation are hereby
confirmed.

2. Community consumption

(17) As set out in recital 36 of the provisional Regulation, the
Commission continued its investigation in particular as
regards one component of the Community consumption,
namely the import volumes during the period considered.
However, no new and substantiated information was
received in this respect. Therefore, and in the absence
of any arguments from any interested parties putting
into question the method used to establish the
Community consumption, recitals 36 and 37 of
the
provisional Regulation are hereby confirmed.

3. Imports from the country concerned

(a) Volume and market share of the imports concerned; import

prices

(18) As set out in recitals 36 and 41 of the provisional Regu-
lation, the Commission continued its investigation on the
import volumes and prices during the period considered.
It is noted that there was a clerical error in recital 42 of
the provisional Regulation as prices decreased by 43 %
from 2004 to the IP and not by 35 %, as stated in the
said recital.

import

regarding

(19) However, no new and substantiated information was
received
prices.
Therefore, and in the absence of any arguments from
any interested parties questioning the method used to
establish the
imports
concerned, recitals 38 to 42 of the provisional Regu-
lation are hereby confirmed.

and prices of

volumes

volume

and

the

(15)

The definitive dumping margin was established on the
basis of a comparison of a weighted average ex-works
normal value with a weighted average ex-works export
price, in accordance with Article 2(11) and (12) of the
basic Regulation. After applying the adjustments referred
to in recitals 12 and 13, the revised definitive country-
wide dumping margin, expressed as a percentage of the
cif Community frontier price, duty unpaid, is 61,8 %.

(b) Price undercutting

(20)

The cooperating exporting producer and one user have
argued that in order to carry out the undercutting calcu-
lation on a fair basis, when comparing the prices charged
by the Community industry for the like product and the
import prices of the product concerned, an adjustment
should be made for differences in physical characteristics.
Certain Community industry producers, on the other
hand, argued that while in a hypothetical
situation
Coke 80+ from some Community producers may

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Official Journal of the European Union

18.3.2008

by

prices

caused

predatory

warrant a higher price based on specific quality charac-
teristics, the data available to the Commission establish
that the users do not pay any higher price for the better
quality characteristics, particularly in an environment of
dumping.
suppressed
According to these Community industry producers, the
user industry’s purchase decisions are,
instead, solely
based on the price quoted for the Chinese product.
Therefore, adjustments for differences in physical charac-
teristics are not warranted. However, since the verified
information provided by interested parties suggests that
there are differences between the moisture, ash, volatile
material and sulphur content of the like product and the
product
normal market
conditions could be expected to have an effect on
prices, the claim of the cooperating Chinese producer
and the user was accepted and an additional adjustment
was made to take into account these differences.

concerned, which

under

(21)

by

costs

incurred

Furthermore, in order to compare the product concerned
and the Coke 80+ produced by the Community industry
in addition to those post-
at the same level of trade,
importation
in the
importers
Community that were mentioned in recital 43 of the
provisional Regulation, an adjustment was made in the
price undercutting calculation also for unloading costs.
For the sake of clarity it
is also mentioned that an
adjustment for the profit margin of unrelated importers
was made in the price undercutting calculation already at
the provisional stage, albeit not specifically mentioned in
recital 43 of the provisional Regulation. This adjustment
has been made on the basis of the verified profitability
reported by the cooperating unrelated importer during
the IP, being in the range of 5-10 % (1).

(a) Sales prices in the Community

(24)

Sales prices in the Community stated in recital 51 of the
provisional Regulation were corrected and are shown in
the table below. The slight revisions do not affect the
conclusions drawn with regard to the Community sales
prices in recitals 51 and 52 of the provisional Regulation.

2003

2004

2005

IP

Unit price EC market
(EUR/tonne)

154

191

243

198

Index (2003 = 100)

100

124

158

129

(b) Profitability, return on investment, cash flow and ability to

raise capital

(25)

of

of

of

the

evolution

The calculation of the profitability figures as laid down in
the provisional Regulation was revised and an error was
figures, presented in the table
corrected. The correct
the conclusions on the general
below, do not affect
trend
the
profitability
Community industry, even though they give an even
bleaker picture of the state of the Community industry:
the profitability of
the Community industry dropped
dramatically from 16,2 % in the 2005 to – 3,8 %
during the
correction, also the
figures on return on investments (ROI), expressed as
the net book value of
the profit
investments, have been adjusted. Cash flow figures
remain the same as in the provisional Regulation, but
are presented in the table below for the sake of clarity.

IP. Following that

in percent of

(22)

The provisional undercutting margin for the PRC was
accordingly amended and it is concluded that, during
the IP, the product concerned originating in the PRC
was sold in the Community at prices which undercut
the Community industry’s sales prices, when expressed
as a percentage of the latter, by 5,7 %.

4. Situation of the Community industry

(23)

In the absence of any new and substantiated information
or argument concerning production, production capacity
and capacity utilisation rates, sales volume, market share,
the
growth,
dumping margin, the findings in recitals 46 to 50, 53
to 54 and 60 to 61 of the provisional Regulation are
hereby confirmed.

investments and magnitude of

stocks,

(1) For confidentiality reasons, this figure is given only in ranges.

2003

2004

2005

IP

8,1 %

15,0 % 16,2 %

– 3,8 %

Profitability of EC
sales to unrelated
customers (% of net
sales)

Index (2003 = 100)

100

185

200

– 47

ROI (profit in % of net
book value of
investments)

2,2 %

19,2 % 13,3 % – 13,3 %

Index (2003 = 100)

100

460

340

– 180

Cash flow
(1 000 EUR)

17 641

13 633

34 600

4 669

Index (2003 = 100)

100

77

196

26

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(26)

In the absence of any new comments in this particular
regard, the conclusions set out in recital 58 of the pro-
visional Regulation on the Community industry’s ability
to raise capital are hereby confirmed.

the injurious situation of

the Community
mean that
industry would have presented itself only during a few
months in 2006.

(c) Employment, productivity and wages

(29)

(27)

figures of

the Community

industry’s
Productivity
workforce stated in recital 59 of the provisional Regu-
lation were also corrected and are shown in the table
below. These corrected figures show that the productivity
the Community industry’s workforce, measured as
of
output
year,
increased slightly from 2003 to the IP. In addition, the
annual
labour costs per employee are, for the sake of
clarity, reproduced in more detailed figures than in the
provisional Regulation.

person employed

(tonnes)

per

per

2003

2004

2005

IP

Number of employees

680

754

734

767

Index (2003 = 100)

100

111

108

113

Productivity
(tonnes/employee)

1 211

1 348

1 299

1 266

In this regard,
it is noted firstly that recital 64 of the
provisional Regulation, wherein reference is made to the
development of certain injury indicators from 2005 to
the IP, must be read in conjunction with the preceding
recital 63, where the development of injury indicators up
to 2005 is commented. It is clear from these recitals of
the provisional Regulation concerning injury indicators,
that
the Commission followed its usual practice and
examined the development of injury indicators over a
period of almost four years, i.e. from the beginning of
2003 to September 2006. As is mentioned in recital 63,
the year 2004 was an exceptional year in the Coke 80+
market, resulting from low supply on the market due to
low imports from the PRC and closure of some plants
previously producing Coke 80+ in the Community. The
exceptional nature of
the market situation in 2004,
the
which was
following year, has not been disputed by any interested
party. It is precisely because the peaks experienced in
2004 and 2005 are considered exceptional
the
in this case, has had to pay particular
Commission,
attention to the development of
injury indicators
between 2003 and the IP.
It is recalled that the key
financial indicators, in particular profitability, experienced
a dramatic drop not only from 2005 to the IP, but also
when comparing 2003 to the IP.

reflected in the indicators of

that

still

Index (2003 = 100)

100

111

107

105

(30)

Annual labour cost
per employee (EUR)

28 096

27 784

29 453

30 502

Index (2003 = 100)

100

99

105

109

it

In addition,
should be noted that drawing any
conclusions as to the state of the Community industry
at the end of 2005 from the fact that producers in the
Community did not follow through an application for an
expiry review of the previous measures would be purely
speculative.

(31)

Therefore, the claim that the Commission has analysed
the injury picture only concerning some months in 2006
must be rejected.

(28)

5. Conclusion on injury

Following disclosure of the provisional Regulation, one
user claimed, with reference to recitals 64 and 67 of the
provisional Regulation, that the Commission had based
its provisional conclusions on injury — and consequently
also causation — exclusively on the allegedly negative
development of certain market indicators over a very
time period instead of assessing injury over a
short
three to four years, as was the common
period of
practice. The user based this argument on an assumption
the Community industry was not suffering any
that
injury up until
the end of 2005, since the previous
measures were allowed to lapse at the end of 2005.
this would
Since the IP ended in September 2006,

(32)

of

and

productivity

i.e. profitability, return on
The above revised factors,
the Community
investment
industry,
leave unaffected the trends as set out in the
provisional Regulation. Also the revised undercutting
margin still remained well above the de minimis level.
the conclusions
is considered that
On this basis,
regarding
the
by
Community industry as set out in the provisional Regu-
lation are not altered. In the absence of any other new
and substantiated information or arguments,
they are
therefore definitively confirmed.

the material

suffered

injury

it

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F. CAUSATION

1. Effect of the dumped imports

(33) As mentioned in recital 22, it is definitively concluded
that during the IP, the average prices of imports from the
PRC undercut the average Community industry prices by
5,7 %. The revision of the undercutting margin leaves
unaffected the conclusions on the effect of the dumped
imports set out in recitals 67 to 69 of the provisional
Regulation.

2. Exchange rate fluctuations

(34) One user has claimed that developments on the market
after the IP show that the situation prevailing during the
IP was exceptional and the prices started to increase
again after the IP. This user claimed that the temporary
drop in prices during the IP was largely due to the un-
favourable exchange rate from the USD to EUR, the fact
that prices for Coke 80+ are generally expressed in USD
on world markets and the difficulty to adjust prices,
to the new
which are generally negotiated annually,
it is noted that the
currency situation.
investigation has shown that
the
Community industry producers within the EU are
generally expressed not in USD, but in EUR or other
the post-IP devel-
European currencies. Furthermore,
opment of higher prices claimed by this user, which
would coincide with an even weaker USD as compared
to the EUR, does not support the logic of the argument
that falling Coke 80+ prices were caused by a negative
USD-EUR exchange rate trend.

the sales prices of

In this regard,

(36)

(37)

(38)

3. Self-inflicted injury

tition by the Chinese producers, and thus to sell at
unsustainable prices.

This user has also argued that
the biggest share of
increase in consumption from 2003 to the IP was
taken by the Community producers and not by the
Chinese imports. While this might be true in absolute
terms, it is not so in relative terms: the investigation has
shown that
the Chinese imports, which had a 24 %
market share in 2003, took almost half of the increase
in the consumption from 2003 to the IP.

The same user also asserted that in an environment of
growing consumption,
the Community industry was
unable to increase its market share because it did not
increase its production capacity. Therefore, the increase
in Community consumption had to be met by Chinese
imports. However, the fact that the Community industry
did not increase its capacity in pace with the growing
consumption can be seen rather as a consequence of the
uncertain investment environment created by the price
pressure from the dumped Chinese imports than a cause
for injury for the Community industry.

is noted that

from the dumped Chinese

It
the Community industry had about
120 000 tonnes spare capacity during the IP, the utilis-
ation of which was not economically viable due to the
imports.
price pressure
Furthermore, one Community producer cut down its
production significantly from 2005 to the IP and has
post-IP ceased the production of Coke 80+. The
specific nature of this industry means that temporary
shutting down of the production process destroys the
(ovens) and restarting would
production equipment
require
In a market
large
situation characterised by a significant price depression
it did not make economic sense to invest in restarting
closed-down ovens or building new ones.

investments.

additional

(35) One user has submitted that the alleged injury of the
Community industry caused by decreasing prices was
mainly attributable to the aggressive pricing policy
operated by some European producers selling at prices
below the Chinese import prices. However, the investi-
gation has not shown evidence of a general ‘aggressive
pricing policy’ between certain European producers.
It
was
found that competition between the European
producers mainly takes place in the regional markets
and not on a Community-wide level, since due to consid-
erable transport costs the producers usually sell in their
geographic proximity. Lower prices possibly charged by
some producers have thus not caused injury to other
European producers. Moreover,
there is
competition between certain European producers does
not mean that the Chinese dumped import prices have
not forced those producers to outbid each other even
more than they would do in a situation of fair compe-

the fact

that

increase

the overall

(39) One interested party also claimed that increased labour
costs were a major cause of the alleged injury to the
the investigation has
Community industry. However,
shown that
in number of
Community industry employees is attributable only to
one producer, which in parallel increased its productivity.
The other Community industry producers kept their level
of employment fairly stable although facing decreasing
production. This can be explained by the nature of the
production process of this industry, where the personnel
needed to keep the production facility running remains
practically
the
company is operating on full capacity or less, causing
productivity to decrease in line with the production.

of whether

unchanged,

regardless

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L 75/27

(40)

In any case, even if some Community industry producers
have incurred unnecessarily high labour costs when
decreasing production,
this cannot be a significant
cause of injury, given the minimal effect the changes in
labour costs have had on the overall profitability of the
Community industry. By way of illustration, the increase
in labour costs (EUR 1,8 million) explains less than one
the Community industry’s
percentage point
overall profitability, which plummeted from 16,2 % to
– 3,8 % from 2005 to the IP (around EUR 39 million
reduction in profits).

loss of

(44)

In this regard it is noted that while it is true that the sales
prices of the Community industry were higher during the
IP than in 2003 (see recital 51 of the provisional Regu-
the raw material prices, which are the main
lation),
the cost of production, were propor-
component of
tionally even higher (see recital 75 of the provisional
Regulation as well as recital 41 above). The claim is
therefore rejected.

4. Prices of raw materials; natural disadvantages in

terms of access to raw materials

(41) With regard to prices of raw material as further described
in recital 75 of the provisional Regulation,
it is noted
that revised calculations have shown that during the
period considered, the basic raw material used in the
represented
production of Coke 80+,
around 60 % of the Community industry’s cost of manu-
facturing of Coke 80+.

coking coal,

(42) One interested party argued that the increased costs of
the main raw material, coking coal, hit the Community
industry relatively harder than the Chinese industry due
to the latter’s easy access to the raw material,
thus
making the Community industry uncompetitive even in
the absence of dumped imports. In this regard, it is firstly
noted that in view of the very limited cooperation from
Chinese exporting producers, no general conclusions can
be drawn as to the facility of access to raw materials by
Chinese exporting producers. It must also be noted that
one Community industry producer, which accounts for a
the total Community industry
significant portion of
production, uses
In
addition, as was already noted in recital 76 of the pro-
visional Regulation, up to the IP the Community industry
was able to pass on the increase in raw material prices to
the sales prices. Additionally, it is noted that according to
is partly
available market
currently
resorting
from
importing significant quantities of coking coal
Australia.

also China
raw materials,

information,

imported

sourced

coking

locally

coal.

to

it

incorrect,

interested party implied that
is

the causation
(43) Another
analysis
how the
since
Community industry, which was profitable in 2003,
could have suffered losses during the IP and no longer
be able to cover the high cost of raw materials, even
though the increase of Community industry’s
sales
prices between 2003 and the IP was far more significant
than the impact of the increase in raw material prices.

doubts

5. Conclusion on causation

(45)

In the absence of any further new and substantiated
information or argument, recitals 67 to 80 of the pro-
visional Regulation are hereby confirmed, with the
exception of the revisions made to recitals 67 and 75
as stated above.

(46)

(47)

(48)

the above,

finding of
In the light of
existence of causal
injury
suffered by the Community industry and the dumped
Chinese imports is confirmed.

link between the material

the provisional

G. COMMUNITY INTEREST

1. Developments after the investigation period

both

from certain Community

Comments relating to the need to take into consideration
certain important post-IP developments have been
received
industry
producers as well as from the cooperating exporting
producer and users. These comments relate in particular
to significant increases of the market price of Coke 80+,
as regards the price of Chinese imports as well as the
Community industry’s sales prices.

licenses. One user has argued that

The said interested parties have attributed the increase of
import prices mainly to certain measures put recently in
to discourage the
place by the Chinese Government
export of energy-intensive materials,
including coke,
such as an export tax hike and restrictive distribution
of export
those
measures are likely to be long-lasting in view of the
structural changes in Chinese policy, whereby semi-raw
energy goods such as Coke 80+ are retained for domestic
market
value.
locally
Community industry producers have, on the other
hand, asserted that
is
temporary and subject to changes at any time at the
the PRC Government. The same
sole discretion of

the current high price level

to generate

sourced

added

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18.3.2008

the profitability of

the
user has also claimed that
Community producers is currently at high levels due to
significantly increased sales prices after the investigation
period. According to this user, the sales prices of the
for a long-term upward
Community industry are set
trend due to significant increase in consumption in the
stone wool
in
production capacity in the EU and, especially, dramatic
changes in Chinese policy having significantly reduced
exports from the PRC.

any increases

absence of

industry,

the

justification of

Insofar as this user implied that the alleged longevity of
(i) the restricted Chinese exports and (ii) the allegedly
high level of profitability of the Community industry
imposing anti-dumping
negates
measures, it is noted firstly that while it is true that the
Chinese Government has put
in place measures that
discourage the export of energy-intensive materials, no
information is available to draw conclusions on the
contrary,
permanence of
experience gathered in the past, notably in 2004 and
2005,
the policy to influence exports
could be reversed rather quickly. Secondly, in accordance
information
with Article 6(1) of the basic Regulation,
concerning dumping and injury relating to a period
subsequent to the investigation period shall, normally,
not be taken into account.

these measures. On the

showed that

trend

of high import

Significant increases observed in the prices of Chinese
imports of Coke 80+ have, however, been acknowledged
in recital 112 of the provisional Regulation and have
in the choice of minimum
been taken into account
import price (MIP) as the form of
the measure. The
beyond
continuing
injurious levels also after the provisional Regulation is
confirmed by published market reports as well by infor-
mation available to the Commission concerning imports
of Coke 80+ from the PRC carried out after the impo-
sition of the provisional measures. This circumstance is
again reflected in the choice of the proposed definitive
measure, a minimum import price, as
in
recital 75.

set out

prices

(52)

(53)

Article 6(1) of the basic Regulation, post-IP information
concerning dumping shall, normally, not be taken into
account.
the said Community industry
producers have even failed to elaborate how the alleged
in their view, be
ocean freight rate increases should,
taken into account in this regard.

In addition,

it

The said Community industry producers have also argued
that a MIP based on the cost of raw material during the
IP fails to adequately remove the injury caused by the
dumped imports, since a significant increase in ocean
freight rates after the IP would affect the cost of the
principal raw material, the coking coal, which is mainly
sourced overseas by the Community industry.
In this
in accordance with
is again reiterated that
regard,
Article 6(1) of the basic Regulation, post-IP information
shall, normally, not be taken into account. In addition,
the Community industry producers have not quantified
the effect
the alleged increase of ocean freight rates
would have on the Community industry’s cost of
production of Coke 80+, except
for providing some
published market reports on ocean freight rates. These
do not, however, allow making sufficiently detailed calcu-
lations on the impact for the Community industry as a
the
whole,
Community
raw
material from several different sources and since one of
the major Community industry producers would not be
increases, since it uses
affected by the ocean freight
locally sourced raw material. The argument of
the
Community industry producers must thus be rejected.

in particular
acquire

taking into account

industry producers

that
their

2. Interest of the Community industry

the

the

interest of

analysis of

In addition to the comments related to post-IP devel-
opments addressed in recitals 47 to 50, one user also
claimed that
the
Community industry for the imposition of measures
rests exclusively on the findings relating to the IP,
without reflecting the entire injury investigation period.
In this regard,
it is noted that the analysis of possible
consequences for the Community industry of imposing
anti-dumping measures or not imposing them is deduced
from the injury analysis, which the Commission has, as
elaborated in recitals 28 and 29, conducted regarding the
development of injury indicators over the whole period
considered. This claim is therefore rejected.

Certain Community industry producers have claimed that
the high import price levels observed after the IP were
rates for bulk
attributable also to the ocean freight
carriage, which increased significantly after
IP,
inflating the cif price of the product concerned. They
argued that
is
determined on a cif basis, it does not address the issue
of imports at dumped prices, as the import prices meet
the MIP when they include the ocean freight.
In this
in accordance with
regard,

the minimum import price

is noted firstly that

since

the

it

(54)

in this respect,

In the absence of any new and substantiated information
or argument
the conclusion made in
recitals 82 to 84 of
the provisional Regulation
regarding the interest of the Community industry are
hereby confirmed.

(49)

(50)

(51)

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L 75/29

3. Interest of unrelated importers/traders in the

(60)

Community

(55)

In the absence of any comments from importers/traders,
the conclusions made in recitals 85 to 87 of the pro-
visional Regulation are hereby confirmed.

4. Interest of users

(a) Stone-wool producers

(56)

In the absence of any new and substantiated information
or argument in this particular respect, recitals 89 to 91
the provisional Regulation are hereby confirmed.
of
it is also confirmed that a duty at the
Consequently,
level of
the underselling margin would have a very
limited effect on the cost of production of the coop-
erating stone wool producer, with a hypothetical
maximum increase of around 1 %, as stated in recital
98 of the provisional Regulation.

(b) Foundries

regards

(57) After the provisional stage, the Commission intensified
the investigation as
the possible impact of
measures on users, in particular foundries. To this end,
additional
information was requested from CAEF and
national foundry associations. The information received
confirms the provisional finding, based on users’ ques-
tionnaire responses as mentioned in recitals 93 and 94 of
the provisional Regulation, that the effect of Coke 80+ in
foundries is relatively
the total cost of production of
moderate. While the share of Coke 80+ in the users’
cost of production depends on the product,
it was
found to range generally between 2 % and 5 %.

(61)

(62)

(58) As for the profitability of the foundries mentioned in
it was found
recital 93 of the provisional Regulation,
to range between 2 % and 6 %. This is in line with the
information provided by CAEF, based on a study of the
profitability of 93 foundries in 2006, according to which
the average profitability of
the foundry industry was
4,4 % (the average margin being 2,8 % for foundries
producing for
the automotive sector and 6,4 % for
those producing for mechanical engineering sector).

(59)

information mentioned above has also
The additional
findings that a duty at the
confirmed the provisional
the underselling margin would have a very
level of
limited effect on the foundries’ cost of production, with
a hypothetical maximum increase of around 1 %. It is
noted that for a large part of the foundries included in
the analysis mentioned in recital 93 of the provisional
Regulation, this percentage is even well below 1 %.

Some interested parties have, however, argued that given
the low average profit margin of European foundries,
they cannot
sustain considerable price increases of
Coke 80+, which they can hardly pass on to their
customers. In this regard it is noted that it cannot be
excluded that some foundries might not be able to
sustain the current price levels of Coke 80+. However,
the price increases after the IP appear not to be attribu-
table to the anti-dumping measures,
since the MIP
imposed by the provisional Regulation is well below
the current market price level and since the price
increases
provisional
measures were imposed.

already

started

before

the

(c) Security of supply

Some users have also reiterated their earlier claims
relating to the security of supply of Coke 80+ and
argued that measures would dramatically affect the EC
user industry, for which Coke 80+ is a raw material of
strategic importance. They have, however, at the same
time asserted that imposition of anti-dumping measures
will only marginally,
if at all, affect Chinese exports.
Moreover, the form and the level of the anti-dumping
measures adopted in this case is designed to function as a
safetynet for the Community industry but without artifi-
cially distorting the market to the detriment of the user
industry. The investigation has shown that any risk of
scarcity of supply,
if at all, may stem from possible
increased domestic demand in China and the current
Chinese policy to discourage energy intensive exports
but not from the anti-dumping measure.

5. Conclusion on Community interest

The above additional analysis concerning the interest of
the users in the Community has not altered the pro-
visional conclusions in this respect. Even if in certain
cases the burden would need to be fully borne by the
user/importer, any negative financial impact on the latter
it is
would in any event be negligible. On this basis,
the
regarding
considered
Community interest as set out in the provisional Regu-
lation are not altered.
In the absence of any other
comments, they are therefore definitively confirmed.

conclusions

that

the

H. DEFINITIVE MEASURES

1. Injury elimination level

(63)

The pre-tax profit margin used in the provisional Regu-
lation to calculate the injury elimination level was based
on the average profit margin attained by the Community
industry during 2003-2005, provisionally calculated as
being 15,3 % of turnover. This was considered as the
profit margin before tax that could be reasonably
this type in the sector
achieved by an industry of
under normal conditions of competition,
in the
absence of dumped imports.

i.e.

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Official Journal of the European Union

18.3.2008

(64)

(65)

(66)

(67)

(68)

Several interested parties contested the profit margin level
provisionally used. One user claimed that the 15,3 %
profit ratio is excessive, arguing that the profit levels
achieved by the Community industry in 2004 and
2005 were exceptional, occurring at a time when the
shortages of Chinese Coke 80+ were so significant that
the then existing anti-dumping measures were suspended.
This user argued that there was no valid justification for
using a profit margin significantly higher that the one
found used in the previous investigation. It is noted that
the profit margin used at
the
previous investigation was 10,5 %.

the definitive stage of

The cooperating Chinese exporting producer echoed the
argument that the provisionally used profit margin is
distorted by the high profits
in 2004 and 2005
achieved due to exceptional market conditions. This
exporting producer
a
commodity type product and that a profit rate of 5 %
would be more in line with profit rates previously used
for commodity type products.

claimed that Coke 80+ is

be

for

the

not

since

injury

elimination,

Some Community industry producers have, on the other
hand, claimed that a 15,3 % profit margin is not
adequate
said
producers have historically achieved higher profit levels
in the absence of price depression caused by dumped
the 15,3 % profit
imports. They have claimed that
margin would
allow the
Community producers to make investments required to
meet compulsory environmental standards and to reju-
venate or reactivate closed-down production facilities. It
the Community
was claimed that such revamping of
production would allow the Community producers to
meet
increased demand for Coke 80+. The
Community producers in question have, however, not
presented an exact figure of the profit margin level that
they would consider reasonable.

sufficient

the

to

It is firstly noted that, in the light of the revised profit-
ability findings mentioned in recital 25, it was found that
the weighted average profitability reached over 2003-05
was actually 13,1 %, instead of the 15,3 % mentioned in
recital 107 of the provisional Regulation.

It was considered that

Secondly, the methodology used to determine the injury
elimination level was re-examined following comments
received.
the years used as
benchmark could indeed be considered unrepresentative
in normal circumstances to the extent that 2004 was an
(15 %)
exceptionally good year
because of a significant shortage of Chinese Coke 80+
on the market. This exceptional situation was reflected
again in 2005 (16,2 %). On the other hand, in 2003 the
Community industry was likely still
in the process of
recovering from past dumping, reflected in a somewhat

in terms of profits

lower profit margin (8,1 %). Instead, the target profit of
10,5 % used in the previous investigation was based on
three consecutive years (1995 to 1997) at a time before
increased market penetration of Chinese
imports.
it seems to reflect more appropriately the
Therefore,
profitability that
industry can achieve in
the absence of dumped imports.

this type of

(69) As for the claims of certain Community producers for a
profit margin necessary to enable investments, it is noted
that such criterion is irrelevant when determining the
injury elimination level. Indeed, the profit margin used
when calculating the target price that will remove the
injury in question must be limited to the profit margin
which the Community industry could reasonably count
on under normal conditions of competition, i.e. in the
absence of the dumped imports.

(70) On the basis of

it

the above,

the
Community industry could reasonably expect to achieve
a pre-tax profit margin of 10,5 % in the absence of
dumped imports and this profit margin was used in
the definitive findings.

is concluded that

(71)

The Chinese import prices as adjusted for the calculation
of price undercutting (see recitals 20 and 21) were
compared, for the IP, with the non-injurious price of
the like product sold by the Community industry on
the Community market. The non-injurious price has
the
been obtained by adjusting the sales price of
the profit
Community industry in order
margin, as now revised (see recital 70). The difference
resulting from this comparison, when expressed as a
percentage of the total cif import value, amounted to
25,8 %, i.e. less than the dumping margin found.

to reflect

(72) Given that no exporting producer had requested indi-
vidual treatment, a single countrywide injury elimination
level was calculated for all exporters in the PRC.

2. Definitive measures

(73)

the conclusions reached with regard to
In view of
dumping,
injury, causation and Community interest,
and in accordance with Article 9(4) of the basic Regu-
lation, a definitive anti-dumping duty should be imposed
at the level of the lowest of the dumping and injury
margins found, in accordance with the lesser duty rule.
In this case, the duty rate should accordingly be set at the
level of the injury found.

(74) On the basis of the above, the definitive duty should

amount to 25,8 %.

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Official Journal of the European Union

L 75/31

3. Form of the measures

(75)

The provisional Regulation imposed an anti-dumping
duty in the form of a minimum import price. Given
that the considerations for choosing a MIP as the form
of the measure mentioned in recital 112 of the pro-
visional Regulation are still valid, and in the absence of
any comments against this choice, the MIP as the form of
the measure is hereby confirmed.

tively the method of measuring and the method of
sampling of Coke to be measured. The fact that these
standards are already applied by the importing industry
shows that such standards are applicable and therefore
relevant for the implementation of these measures.

I. DEFINITIVE COLLECTION OF THE PROVISIONAL
DUTY

(81)

into

the Commission

looked
in particular the evolution of

(76) As set out in recital 117 of the provisional Regulation,
the Commission analysed further the feasibility of an
indexation system to be applied to the MIP. For this
different
purpose,
indexation options,
the
price of coking coal, the main raw material of Coke
80+. Also certain Community industry producers had
claimed that the MIP should be linked to the cost of
coking coal. However, it was found that the fluctuation
of the price of Coke 80+ is not sufficiently explained by
the evolution of the price of coking coal or any other
the MIP
major input. Therefore,
should not be indexed.

it was decided that

the

level of

In view of the magnitude of the dumping margin found
and given the
injury caused to the
Community industry, it is considered necessary that the
amounts secured by way of provisional anti-dumping
duty imposed by the provisional Regulation should be
definitively collected to the extent of the amount of defi-
nitive duties imposed. As the definitive duty is lower than
the provisional duty, amounts provisionally secured in
excess of
the definitive rate of anti-dumping duty
should be released,

(77)

The amount of the minimum import price results from
the application of the injury margin to the export prices
used in the calculation of the injury elimination level
during the IP. The definitive minimum import price
thus calculated amounts to EUR 197 per tonne.

4. Implementation

(78)

In the absence of any comments concerning the im-
plementation of measures, recitals 114 to 116 of the
provisional Regulation are hereby confirmed.

(79)

to the applicability of

There was concern as
these
measures in respect of the method of measuring of the
Coke as to determine the proportions of Coke 80+ and
Coke 80– present in a mixed shipment. The investigation
has shown that importers of Coke 80+ impose strict
inter alia, size and moisture and that upon
criteria for,
in the Community,
arrival of
the purchased product
to
control measurements are made by the importer
ensure that these criteria are respected. The main users
of Coke in the EC are certified under ISO 9001:2000 or
equivalent quality management systems requiring cer-
tificates of origin and certificate of conformity with
conformity
each
confirming also dimensional
specifications may be
requested by the implementing customs authorities for
the purpose of verifying the accuracy of the particulars
contained in the declaration.

certificates

shipment.

Such

of

HAS ADOPTED THIS REGULATION:

Article 1

A definitive anti-dumping duty is hereby imposed on
1.
in pieces larger than 80 mm in
imports of coke of coal
maximum diameter
falling within CN code
ex 2704 00 19 (TARIC code 2704 00 19 10) and originating
in the People’s Republic of China. The diameter of the pieces
shall be determined in accordance with the norm ISO
728:1995.

(Coke 80+)

The amount of the definitive anti-dumping duty applicable
2.
for products described in paragraph 1 shall be the difference
between the minimum import price of EUR 197 per tonne and
the net, free-at-Community-frontier price, before duty,
in all
cases where the latter is less than the minimum import price.

3.
The anti-dumping duty shall also apply, pro rata, to coke
of coal in pieces with a diameter of more than 80 mm when
shipped in mixtures containing both coke of coal in pieces with
a diameter of more than 80 mm and coke of coal in pieces with
smaller diameters unless it is determined that the quantity of
coke of coal in pieces with a diameter of more than 80 mm
does not constitute more than 20 % of dry net weight of the
mixed shipment. The quantity of coke of coal in pieces with a
diameter of more than 80 mm contained in mixtures may be
determined in accordance with Articles 68 to 70 of Council
Regulation (EEC) No 2913/92 of 12 October 1992 establishing
the Community Customs Code (1) wherein, inter alia, it is stated
to
the customs authorities may require the declarant
that

(80)

The two ISO standards applied by the industry are
ISO 728:1995 and ISO 18238:2006 determining respec-

(1) OJ L 302, 19.10.1992, p. 1. Regulation as last amended by Regu-

lation (EC) No 1791/2006 (OJ L 363, 20.12.2006, p. 1).

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Official Journal of the European Union

the purpose of verifying the
present other documents for
accuracy of the particulars contained in the declaration and to
examine the goods and take samples for analysis or for detailed
examination. In cases where the quantity of coke of coal
in
pieces with a diameter of more than 80 mm is determined
on the basis of samples,
the samples shall be selected in
accordance with the norm ISO 18238:2006.

In cases where goods have been damaged before entry
4.
into free circulation and, therefore, the price actually paid or
payable is apportioned for the determination of the customs
value pursuant
to Article 145 of Commission Regulation
(EEC) No 2454/93 of 2 July 1993 laying down provisions for
the implementation of Regulation (EEC) No 2913/92 estab-
lishing the Community Customs Code (1),
the minimum
import price set out above shall be reduced by a percentage
which corresponds to the apportioning of the price actually
paid or payable. The duty payable will then be equal to the
difference between the reduced minimum import price and the
reduced net, free-at-Community-frontier price, before customs
clearance.

Unless otherwise

5.
concerning customs duties shall apply.

specified,

the provisions

18.3.2008

in force

Article 2

Amounts secured by way of the provisional anti-dumping duty
pursuant to Regulation (EC) No 1071/2007 on imports of coke
in pieces larger than 80 mm in maximum diameter
of coal
(Coke 80+) originating in the People’s Republic of China shall
be definitively collected at
the definitive duty
imposed pursuant to Article 1. The amounts secured in excess
of the amount of the definitive duty shall be released.

the rate of

Article 3

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, 17 March 2008.

For the Council
The President

I. JARC

(1) OJ L 253, 11.10.1993, p. 1. Regulation as last amended by Regu-

lation (EC) No 214/2007 (OJ L 62, 1.3.2007, p. 6).