Proposal for a Council Regulation terminating the partial interim review of the anti-dumping measures applicable to hand pallet trucks and their essential parts originating in the People’s Republic of China
Date: 2009-02-12
Institutions: European Commission
Subjects: China, anti-dumping duty, anti-dumping legislation, anti-dumping measure, hoisting equipment, import, originating product

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 12.2.2009 
COM(2009) 54 final 

Proposal for a 

COUNCIL REGULATION 

terminating the partial interim review of the anti-dumping measures applicable to hand 
pallet trucks and their essential parts originating in the People’s Republic of China  

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

1) CONTEXT OF THE PROPOSAL 

110 

•  Grounds for and objectives of the proposal 

This  proposal  concerns  the  application  of  Council  Regulation  (EC)  No  384/96  of  22 
December 1995 on protection against dumped imports from countries not members of 
the European Community, as last amended by Council Regulation (EC) No 2117/2005 
of 21 December 2005 ('the basic Regulation') in the proceeding concerning imports of 
hand  pallet  trucks  and  their  essential  parts  originating  in  the  People's  Republic  of 
China,  following  a  partial  interim  review  pursuant  to  Article  11(3)  of  the  basic 
Regulation.  

120 

•  General context 

This proposal is made in the context of the implementation of the basic Regulation and 
is the result of an investigation which was carried out in line with the substantive and 
procedural requirements laid out in the basic Regulation. 

139 

•  Existing provisions in the area of the proposal 

The measures currently in force are imposed by Council Regulation (EC) No 1174/2005 
imposing  a  definitive  anti-dumping  duty  on  imports  of  hand  pallet  trucks  and  their 
essential parts originating in the People's Republic of China.  

By  Regulation  (EC)  No  684/2008  the  Council  clarified  the  product  scope  of  the 
original investigation. 

141 

•  Consistency with other policies and objectives of the Union 

Not applicable. 

2) CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

•  Consultation of interested parties 

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Interested parties concerned by the proceeding have had the possibility to defend their 
interests during the investigation, in line with the provisions of the basic Regulation. 

•  Collection and use of expertise 

There was no need for external expertise. 

•  Impact assessment 

This proposal is the result of the implementation of the basic Regulation. 

The  basic  Regulation  does  not  foresee  a  general  impact  assessment  but  contains  an 
exhaustive list of conditions that have to be assessed. 

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3) LEGAL ELEMENTS OF THE PROPOSAL 

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•  Summary of the proposed action 

On 19 December 2007, the Commission initiated a partial interim review of the anti-
dumping measures applicable to imports of hand pallet trucks and their essential parts 
originating in the People's Republic of China imposed by Council Regulation (EC) No 
1174/2005 of 18 July 2005. 

The request for the review was lodged by a Chinese exporting producer, namely Yale 
(Hangzhou) Industrial Products Co. Ltd. who presented prima facie evidence that the 
circumstances on the basis of which measures were established for this company have 
changed  and  the  continued  imposition  of  measures  at  the  existing  level,  which  were 
based  on  the  level  of  dumping  previously  established,  appeared  to  be  no  longer 
necessary to offset dumping.  

The  review  investigation  showed  that  the  circumstances  on  the  basis  of  which 
measures  were  established  with  respect  to  Yale  (Hangzhou)  Industrial  Products  Co. 
Ltd. have not changed and consequently a change of the anti-dumping duty applicable 
to the company is not possible.  

Therefore,  it  is  suggested  that  the  Council  adopts  the  attached  proposal  for  a 
Regulation  terminating  the  existing  partial  interim  review  without  amending  the 
existing measures in force, which should be published in the Official Journal no later 
than 18 March 2009.  

310 

•  Legal basis 

Council  Regulation  (EC)  No  384/96  of  22  December  1995  on  protection  against 
dumped  imports  from  countries  not  members  of  the  European  Community,  as  last 
amended by Council Regulation (EC) No 2117/2005 of 21 December 2005.  

329 

•  Subsidiarity principle 

The proposal falls under the exclusive competence of the Community. The subsidiarity 
principle therefore does not apply. 

•  Proportionality principle 

The proposal complies with the proportionality principle for the following reason(s). 

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The form of action is described in the above-mentioned basic Regulation and leaves no 
scope for national decision. 

Indication  of  how  financial  and  administrative  burden  falling  upon  the  Community, 
national governments, regional and local authorities, economic operators and citizens is 
minimized and proportionate to the objective of the proposal is not applicable. 

•  Choice of instruments 

341 

Proposed instruments: Regulation. 

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342 

Other means would not be adequate for the following reason(s). 

The above-mentioned basic Regulation does not foresee alternative options. 

4) BUDGETARY IMPLICATION 

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The proposal has no implication for the Community budget. 

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Proposal for a 

COUNCIL REGULATION 

terminating the partial interim review of the anti-dumping measures applicable to hand 
pallet trucks and their essential parts originating in the People’s Republic of China  

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, 

Having  regard  to  Council  Regulation  (EC)  No  384/96  of  22  December  1995  on  protection 
against dumped imports from countries not members of the European Community1 ('the basic 
Regulation'), and in particular Article 11(3) thereof, 

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

Whereas: 

1. 

MEASURES IN FORCE 

A. PROCEDURE 

(1) 

Following  an  investigation  ('the  original  investigation'),  the  Council,  by  Regulation 
(EC) No 1174/20052 imposed a definitive anti-dumping duty on imports of hand pallet 
trucks  and  their  essential  parts  ('HPT')  originating  in  the  People's  Republic  of  China 
('PRC'). The original investigation used as investigation period the period from 1 April 
2003 to 31 March 2004. 

(2) 

By  Regulation  (EC)  No  684/20083  the  Council  clarified  the  product  scope  of  the 
original investigation.  

2. 

REQUEST FOR A REVIEW 

(3) 

This  partial  interim  review  was  initiated  on  the  basis  of  a  request  lodged,  and 
information  provided,  by  Yale  (Hangzhou)  Industrial  Products  Co.  Ltd.  ('Yale'),  an 
exporter from the PRC. The information indicated that the circumstances on the basis 
of which measures were established with respect to Yale have changed and that these 
changes  are  of  a  lasting  nature.  In  particular  Yale  provided  prima  facie  evidence 
showing that it meets the criteria for market economy treatment and that a comparison 
of  normal  value  based  on  its  own  costs  and  export  prices  to  the  Community  would 
lead to a dumping margin significantly lower than  the  current  level  of the measures. 

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OJ L 56, 6.3.1996, p. 1.  
OJ L 189, 21.7.2005, p. 1 . 
OJ L 192, 19.7.2008, p. 1. 

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Therefore  the  continued  imposition  of  measures  at  the  existing  level,  which  were 
based  on  the  level  of  dumping  previously  established,  appeared  to  be  no  longer 
necessary to offset dumping.  

3. 

REVIEW INVESTIGATION  

(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

Having  determined,  after  consulting  the  Advisory  Committee,  that  sufficient  prima 
facie  evidence  existed  to  justify  the  initiation  of  a  partial  interim  review,  the 
Commission announced by a notice published in the Official Journal of the European 
Union4 the initiation of a partial interim review in accordance with Article 11(3) of the 
basic Regulation, limited to the examination of dumping as far as Yale is concerned.  

The  investigation  period  of  dumping  covered  the  period  from  1  October  2006  to  30 
September 2007 (‘review investigation period’ or ‘RIP’). 

The  Commission  officially  advised  Yale,  as  well  as  the  representatives  of  the  PRC 
('country  concerned'),  and  the  Community  Industry,  as  defined  in  the  original 
investigation,  of  the  initiation  of  the  review.  Interested  parties  were  given  the 
opportunity  to  make  their  views  known  in  writing  and  request  a  hearing  within  the 
time  limit  set  in  the  notice  of  initiation.  All  interested  parties  who  so  requested  and 
showed  that  there  were  particular  reasons  why  they  should  be  heard,  were  granted  a 
hearing. 

The  Commission  sent  questionnaires  to  Yale,  to  the  Community  Industry  producers 
known to be concerned, to known producers of HPT in Canada which was chosen as 
analogue country in the original investigation and to known producers of HPT in India 
and  Malaysia,  which  were  mentioned  during  the  original  investigation  as  possible 
alternative  analogue  countries.  The  Commission  also  sent  a  claim  form  for  market 
economy treatment (‘MET’) to Yale.  

Replies  to  the  questionnaires,  as  well  as  comments  and  information,  were  received 
from Yale and one Community Industry producer.  

The  Commission  sought  and  verified  all  information  deemed  necessary  for  the 
determination  of  MET  and  dumping,  analysed  the  information  provided  and  carried 
out verification visits at the following companies : 

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 - Yale (Hangzhou) Industrial Products Co. Ltd., Hangzhou, PRC, 

 - Yale Industrial Products GmbH, Velbert, Germany. 

B. PRODUCT CONCERNED AND LIKE PRODUCT 

1. 

PRODUCT CONCERNED 

(10)  The  definition  of  the  product  concerned  corresponds  to  the  one  that  was  used  in  the 
original  investigation,  as  clarified  by  Regulation  (EC)  No  684/2008.  .  The  product 
concerned is hand pallet trucks, not self propelled, used for the handling of materials 
normally  placed  on  pallets,  and  their  essential  parts,  i.e.  chassis  and  hydraulics, 

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OJ C 308, 19.12.2007, p. 15 

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originating in the PRC, falling within CN code ex 8427 90 00 and ex 8431 20 00. For 
the purposes of the Regulation imposing the definitive anti-dumping duty mentioned 
under recital (1), hand pallet trucks are trucks with wheels supporting lifting fork arms 
for handling pallets, designed to be manually pushed, pulled and steered, on smooth, 
level, hard surfaces, by a pedestrian operator using an articulated tiller. The hand pallet 
trucks are only designed to raise a load, by pumping the tiller, to a height sufficient for 
transporting  and  do  not  have  any  other  additional  functions  or  uses  such  as  for 
example  (i)  to  move  and  to  lift  the  loads  in  order  to  place  them  higher  or  assist  in 
storage of loads (highlifters), (ii) to stack one pallet above the other (stackers), (iii) to 
lift  the  load  to  a  working  level  (scissorlifts)  or  (iv)  to  lift  and  to  weigh  the  loads 
(weighing trucks). 

2. 

LIKE PRODUCT 

(11)  The current review has shown that the HPT produced in the PRC by Yale and sold on 
the Chinese market have the same basic physical characteristics and the same uses as 
those exported to the Community. Therefore, these products are considered to be a like 
product within the meaning of Article 1(4) of the basic Regulation.  

C. RESULTS OF THE INVESTIGATION 

1. 

MARKET ECONOMY TREATMENT ('MET') 

(12)  Pursuant  to  Article  2(7)(b)  of  the  basic  Regulation,  in  anti-dumping  investigations 
concerning  imports  originating  in  the  PRC  normal  value  shall  be  determined  in 
accordance  with  paragraphs  1  to  6  of  the  said  Article  for  those  exporting  producers 
which have shown that they meet the criteria laid down in Article 2(7)(c) of the basic 
Regulation,  i.e.  where  it  is  demonstrated  by  such  exporting  producers  that  market 
economy conditions prevail in respect of the manufacture and sale of the like product. 
Briefly, and for ease of reference only, these criteria are set out in a summarised form 
below: 

1.  business  decisions  and  costs  are  made  in  response  to  market  conditions,  without 
significant State interference, and costs reflect market values; 

2. firms have one clear set of accounting records which are independently audited, in 
line with International Accounting Standards ('IAS') and applied for all purposes; 

3.  there  are  no  significant  distortions  carried  over  from  the  former  non-market 
economy system; 

4. legal certainty and stability is provided by bankruptcy and property laws; 

5. currency exchanges are carried out at the market rate. 

(13)  Yale requested MET pursuant to Article 2(7)(b) of the basic Regulation and replied to 

the MET claim form for exporting producers within the given deadlines.  

(14)  The  Commission  sought  all  information  deemed  necessary  and  verified  the 

information submitted in the MET claim at the premises of the company in question. 

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(15)  Yale did not show that it fulfils all the criteria set out in Article 2(7)(c) of the basic 

Regulation. The company did not fulfil criteria 1 and 2. 

(16)  As  far  as  criterion  1  is  concerned  it  was  established  on  spot  that  the  company’s 
Articles of Association ('AoA') contained explicit domestic sales restrictions, namely 
the  company  was  obliged  to  sell  100%  of  its  products  to  overseas  markets.  Yale 
argued that those restrictions never played any role in substance as it had some minor 
domestic  sales  during  the  RIP.  Nevertheless,  the  company  was  not  in  a  position  to 
present concrete evidence demonstrating that it was de facto and de jure not subject to 
the  aforesaid  restriction  stipulated  by  its  AoA.  Furthermore,  evidence  of  State 
influence  on  the  company's  decisions  with  regard  to  export  sales  was  established  on 
spot. It was revealed that since 2002 Yale benefits from a 50% tax cut on its income 
tax rate. This tax cut is derived from the relevant implementing rules of the income tax 
law for enterprises with foreign investment and foreign enterprises. The rules stipulate 
that  export  oriented  foreign  invested  enterprises,  like  Yale,  with  export  sales  that 
amount to 70% or more of the total sales for the year are entitled to 50% tax cuts after 
the  period  of  enterprise  income  tax  reductions  has  expired.  It  can  be  seen  from  the 
above  that  Yale  does  not  take  its  business  decisions  with  respect  to  its  export  sales 
only  in  the  light  of  market  signals  reflecting  supply  and  demand.  The  company  is 
subject to significant State influence consisting of the award of certain tax benefits on 
the  explicit  condition  that  it  takes  certain  business  decisions  with  respect  to  its 
domestic  and  export  sales.  Account  taken  of  all  the  above,  it  was  consequently 
concluded that the company has not shown that it fulfils criterion 1.  

(17)  As  far  as  criterion  2  is  concerned  it  was  established  on  spot  that  fundamental 
International Accounting Standards principles were disregarded (i.e. accrual principle, 
exchange rates conversion policies, lack of fair representation of the financial position 
and  use  of  accounts  prepared  only  for  the  purposes  of  the  investigation)  both  in  the 
accounts  and  in  their  audit,  which  put  into  question  the  reliability  of  the  company's 
accounts.  Consequently,  it  was  concluded  that  the  company  has  not  shown  that  it 
fulfils criterion 2.  

(18)  Yale and the Community Industry were given an opportunity to comment on the above 
findings. No specific comments with respect to the above findings were made by Yale 
whereas one Community Industry producer submitted some general comments. 

(19)  On the basis of the above, it was concluded that Yale has not shown that it fulfils all 
the  criteria  set  out  in  Article  2(7)(c)  of  the  basic  Regulation  and,  thus,  could  not  be 
granted MET. 

2. 

INDIVIDUAL TREATMENT ('IT') 

(20)  Pursuant  to  Article  2(7)(a)  of  the  basic  Regulation,  a  country-wide  duty,  if  any,  is 
established  for  countries  falling  under  that  Article,  except  in  those  cases  where 
companies are able to demonstrate that they meet all criteria set out in Article 9(5) of 
the basic Regulation and can thus be granted IT. 

(21)  Yale also claimed IT in the event that it would not be granted MET. 

(22)  On the basis of the information available, it was established that the company did not 
fulfil the requirements foreseen in Article 9(5) of the basic Regulation. In particular, as 

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it  is  described  in  detail  under  recital  (16),  it  was  revealed  at  the  on-spot  verification 
that  the  company  was  not  in  a  position  to  freely  determine  its  export  quantities  and 
conditions and terms of sale. Indeed, as outlined above, the company’s decisions with 
respect  to  domestic  and  export  sales  were  linked  to  State-imposed  sales  restrictions 
contained in the company's AoA. It was therefore concluded that the company could 
not be granted IT. 

3. 

DUMPING MARGIN DURING THE RIP 

(23)  As described under recital (18) and (22) above, Yale was not granted either MET or 
IT.  The  situation  of  Yale  has  thus  not  changed  with  respect  to  the  original 
investigation. In this regard it is recalled that as stated under recital (4), this review is 
limited  in  scope  to  the  dumping  as  far  as  Yale  is  concerned.  Thus,  since  no  neither 
MET nor IT is granted, no new dumping margin, higher or lower than the existing one 
can be established for Yale in this review. Finally, it is pertinent to note that during the 
original  investigation  Yale  was  a  known  exporting  producer  in  the  PRC,  whom  the 
Commission officially advised at the time of the initiation of the original investigation, 
but  it  did  not  cooperate.  In  the  original  investigation  five  exporting  producers 
cooperated  with  the  investigation,  one  of  which  was  granted  MET  and  four  were 
granted IT. With respect to Yale, its dumping margin was the country-wide dumping 
margin  applicable  to  all  exporters  that  did  not  cooperate  with  the  original 
investigation.  

D. TERMINATION OF THE REVIEW 

(24) 

In  light  of  the  results  of  the  investigation,  the  review  should  be  terminated  without 
amending the level of the duty applicable to Yale, which should be maintained at the 
level of the definitive anti-dumping duty rate established in the original investigation, 
i.e. 46,7 %.  

E. DISCLOSURE 

(25) 

Interested parties were informed of the essential facts and considerations on the basis 
of which it was intended to terminate the present review and to maintain the existing 
anti-dumping duty on imports of HPT produced by Yale.  

(26)  All interested parties were given an opportunity to comment. The comments received 

were not of a nature as to change the conclusions. 

(27)  Following  disclosure,  Yale  claimed  that  it  should  be  granted  IT.  Nevertheless,  the 
arguments  submitted  were  not  adequately  substantiated  and  could  not  dispute  the 
results of the investigation as described under recital (16) and (22). Furthermore, by a 
letter  dated  22  January  2009  and  addressed  to  the  Commission,  Yale  withdrew  its 
application for a partial interim review.  

(28)  This  review  should  therefore  be  terminated  without  any  amendment  to  Regulation 

(EC) No 1174/2005,  

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HAS ADOPTED THIS REGULATION: 

Sole Article 

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

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

Done at Brussels,  

For the Council 
The President 

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