Council Regulation (EC) No 188/2009 of 9 March 2009 terminating 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
Date: 2009-03-09
Institutions: Council of the European Union
Subjects: China, anti-dumping duty, anti-dumping legislation, dumping, hoisting equipment, import, originating product

12.3.2009

EN

Official Journal of the European Union

L 67/1

(Acts adopted under the EC Treaty/Euratom Treaty whose publication is obligatory)

I

REGULATIONS

COUNCIL REGULATION (EC) No 188/2009

of 9 March 2009

terminating 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

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty
Community,

establishing the European

Having regard to Council Regulation (EC) No 384/96 of
22 December 1995 on protection against dumped imports
from countries not members of the European Community (1)
(the basic Regulation), and in particular Article 11(3) thereof,

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

Whereas:

A. PROCEDURE

1. Measures in force

(1)

Following an investigation (the original investigation), the
Council, by Regulation (EC) No 1174/2005 (2) 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
investi­
gation used as investigation period the period from
1 April 2003 to 31 March 2004.

(2)

By Regulation (EC) No 684/2008 (3) 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
lodged, and information provided, by Yale
request

(1) OJ L 56, 6.3.1996, p. 1.
(2) OJ L 189, 21.7.2005, p. 1.
(3) OJ L 192, 19.7.2008, p. 1.

Industrial Products Co. Ltd (Yale),

an
(Hangzhou)
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. 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

after

consulting

determined,

Having
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 Union (4) 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 investi­
gation, 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.

(4)

(5)

(6)

(4) OJ C 308, 19.12.2007, p. 15.

L 67/2

EN

Official Journal of the European Union

12.3.2009

(7)

(8)

(9)

(10)

known

industry

producers

to the
The Commission sent questionnaires to Yale,
be
to
Community
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
one
received
information, were
Community industry producer.

from Yale

and

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

information provided

analysed

the

— Yale

(Hangzhou)

Industrial

Products Co

Ltd,

Hangzhou, PRC,

— Yale Industrial Products GmbH, Velbert, Germany.

B. PRODUCT CONCERNED AND LIKE PRODUCT

1. Product concerned

in

the

PRC,

falling within

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, orig­
inating
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 (high­
lifters),
the other
(stackers), (iii) to lift the load to a working level (scis­
sorlifts) or (iv) to lift and to weigh the loads (weighing
trucks).

to stack one pallet

above

(ii)

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 originat­
ing 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
i.e. where it is demonstrated by
the basic Regulation,
such
economy
exporting
conditions prevail
the manufacture and
the like product. Briefly, and for ease of
sale of
reference only, these criteria are set out in a summarised
form below:

producers
in respect of

that market

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

2. firms have one clear set of accounting records which
in line with International
(IAS) and applied for all

are independently audited,
Accounting Standards
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
information deemed
necessary and verified the information submitted in the
MET claim at the premises of the company in question.

all

12.3.2009

EN

Official Journal of the European Union

L 67/3

(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.

(20)

that

(16) As far as criterion 1 is concerned it was established on
the company’s Articles of Association
the spot
(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
It was revealed that since 2002
established on spot.
Yale benefits from a 50 % tax cut on its income tax
rate. This tax cut is derived from the relevant implemen­
ting 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.
it was consequently
Account
the above,
concluded that
it
fulfils criterion 1.

the company has not shown that

taken of all

that

(17) As far as criterion 2 is concerned it was established on
International Accounting
fundamental
the spot
accrual
Standards principles were disregarded (i.e.
principle, exchange rates conversion policies,
lack of
fair representation of the financial position and use of
accounts prepared only for the purposes of the investi­
gation) 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 oppor­
tunity to comment on the above findings. No specific
to the above findings were
comments with respect
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
in
fulfils all
Article 2(7)(c) of the basic Regulation and, thus, could
not be granted MET.

the criteria set out

it

2. Individual treatment (IT)

if any,

to Article 2(7)(a) of

the basic Regulation, a
Pursuant
countrywide duty,
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.

revealed at

the basic Regulation.

(22) On the basis of the information available, it was estab­
lished that the company did not fulfil the requirements
foreseen in Article 9(5) of
In
particular, as it is described in detail under recital 16, it
was
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
the company
AoA.
could not be granted IT.

It was therefore concluded that

the on-the-spot-verification that

3. Dumping margin during the RIP

(23) As described under recitals 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
investi­
gation. 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 inves­
tigation, but it did not cooperate. In the original investi­
gation five exporting producers cooperated with the
investigation, one of which was granted MET and four
its dumping
were granted IT. With respect
margin was the countrywide dumping margin applicable
to all exporters that did not cooperate with the original
investigation.

to Yale,

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 estab­
lished in the original investigation, i.e. 46,7 %.

L 67/4

EN

Official Journal of the European Union

12.3.2009

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 recitals 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,

HAS ADOPTED THIS REGULATION:

Article 1

interim review of

The partial
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
anti-dumping
measures in force.

terminated without

amending

the

Article 2

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

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

Done at Brussels, 9 March 2009.

For the Council
The President
P. NEČAS