Proposal for a Council Regulation (EU) No …/.. imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain cargo scanning systems originating in the People's Republic of China
Date: 2010-05-17
Institutions: European Commission
Subjects: China, anti-dumping duty, freight rate, import, ionising radiation, originating product

EN 

EN 

   EN 

 
 
EUROPEAN COMMISSION  

Brussels, 17.5.2010 
COM(2010)237 final 

2010/0127 (NLE) 

Proposal for a 

COUNCIL REGULATION (EU) No …/.. 

imposing a definitive anti-dumping duty and collecting definitively the provisional duty 
imposed on imports of certain cargo scanning systems originating in the People's 
Republic of China 

EN 

   EN 

 
 
 
  
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

Grounds for and objectives of the proposal 

This  proposal  concerns  the  application  of  Article  5  of  Council  Regulation  (EC)  No 
1225/2009 of 30 November 2009 on protection against dumped imports from countries 
not  members  of  the  European  Community,  repealing  Council  Regulation  (EC)  No 
384/96 of 22 December 1995 on protection against dumped imports from countries not 
members of the European Community (‘the basic Regulation’) and in particular Article 
9 of Regulation (EC) No 1225/2009. 

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. 

Existing provisions in the area of the proposal 

Provisional  measures  were  imposed  by  Commission  Regulation  (EU)  No  1242/2009 
(OJ L 332, 17.12.2009, p.60). 

Consistency with other policies and objectives of the Union 

Not applicable. 

2. 

CONSULTATION OF INTERESTED PARTIES AND IMPACT 
ASSESSMENT 

Consultation of interested parties 

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. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

Summary of the proposed action 

On 18 March 2009, the Commission initiated an anti-dumping proceeding concerning 

EN 

2 

   EN 

 
 
 
 
 
 
 
 
 
 
 
imports  of  certain  cargo  scanning  systems  originating  in  the  People's  Republic  of 
China. 

The investigation found dumping of the product concerned, which caused injury to the 
Union industry. The investigation also found that it was not against the Union interest 
to  impose  anti-dumping  measures.  On  this  basis,  provisional  measures  were  imposed 
by Commission Regulation (EU) No 1242/2009. The continuation of the investigation 
has confirmed the essential provisional findings. 

Therefore, it is proposed that the Council adopts the attached proposal for a Regulation 
in  order  to  impose  definitive  measures  on  imports  of  certain  cargo  scanning  systems 
originating in the People's Republic of China. 

Legal basis 

Council  Regulation  (EC)  No  1225/2009  of  30  November  2009  on  protection  against 
dumped  imports  from  countries  not  members  of  the  European  Community,  repealing 
Council  Regulation  (EC)  No  384/96  of  22  December  1995  on  protection  against 
dumped imports from countries not members of the European Community (‘the basic 
Regulation’)  

Subsidiarity principle 

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

Proportionality principle 

The proposal complies with the proportionality principle for the following reasons: 

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 Union, 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 

Proposed instrument: Regulation. 

Other  means  would  not  be  adequate  because  the  basic  Regulation  does  not  foresee 
alternative options. 

4. 

BUDGETARY IMPLICATION 

The proposal has no implication for the EU budget. 

EN 

3 

   EN 

 
 
 
 
 
 
 
 
 
 
 
2010/0127 (NLE) 

Proposal for a 

COUNCIL REGULATION (EU) No …/.. 

imposing a definitive anti-dumping duty and collecting definitively the provisional duty 
imposed on imports of certain cargo scanning systems originating in the People's 
Republic of China 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty on the Functioning of the European Union, 

Having regard to Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection 
against dumped imports from countries not members of the European Community1, repealing 
Council  Regulation  (EC)  No  384/96  of  22  December  1995  on  protection  against  dumped 
imports  from  countries  not  members  of  the  European  Community2  (‘the  basic  Regulation’) 
and in particular Article 9 of Regulation (EC) No 1225/2009, 

Having  regard  to  the  proposal  submitted  by  the  European  Commission  (‘the  Commission’) 
after having consulted the Advisory Committee, 

Whereas: 

1. 

PROVISIONAL MEASURES 

(1) 

(2) 

The  Commission,  by  Regulation  (EU)  No  1242/20093  (‘the  provisional  Regulation’) 
imposed a provisional anti-dumping duty on imports of certain cargo scanning systems 
originating in the People's Republic of China ('PRC'). 

The proceeding was initiated as a result of a complaint lodged on 2 February 2009 by 
Smiths  Detection  Group  Limited  (‘the  complainant’)  on  behalf  of  a  producer 
representing  more  than  80%  of  the  total  Union  production  of  certain  cargo  scanning 
systems.  The  complaint  contained  evidence  of  dumping  and  of  material  injury 
resulting  therefrom,  which  was  considered  sufficient  to  justify  the  initiation  of  a 
proceeding. 

2. 

SUBSEQUENT PROCEDURE 

(3) 

Subsequent to the disclosure of the essential facts and considerations on  the basis of 
which  it  was  decided  to  impose  provisional  anti-dumping  measures  (provisional 
disclosure),  several  interested  parties  made  written  submissions  making  known  their 

1 
2 
3 

OJ L 343, 22.12.2009, p. 51. 
OJ L 56, 6.3.1996, p. 1. 
OJ L 332, 17.12.2009, p.60. 

EN 

4 

   EN 

 
                                                 
 
views  on  the  provisional  findings.  The  parties  who  so  requested  were  granted  the 
opportunity to be heard.  

The Commission continued to seek and verify all information it deemed necessary for 
its definitive  findings. In  particular,  the Commission continued its investigation with 
respect  to  EU  consumption  aspects.  In  this  respect,  the  Commission  contacted 
interested parties, notably users as well as producers of the product concerned, with a 
view to verify claims of parties with respect of a series of transactions. 

It  is  recalled  that,  as  set  out  in  recital  (9)  of  the  provisional  Regulation,  the 
investigation  of  dumping  and  injury  covered  the  period  from  1  July  2007  to  31 
December 2008 ('the investigation period' or ‘IP’). The examination of trends relevant 
for the assessment of injury covered the period from 1 January 2004 to the end of the 
investigation period (‘period considered’). 

The sole cooperating Chinese exporting producer argued that there is no justification 
for  the  use  of  an  IP  of  18  months  instead  of  the  12  months  normally  used  in  anti-
dumping investigations. According to the Chinese company the IP should have simply 
covered the 2008 calendar year.  

At the outset it should be noted that the Chinese party had not disputed the use of an IP 
of the 18 month during the provisional stage of the investigation. The claim was only 
made  after  the  adoption  of  provisional  measures.  However,  the  IP  was  already 
announced in the notice of initiation of the proceeding and in the questionnaires, i.e. at 
the very beginning of the investigation. The specific reasons for selecting an IP of 18 
months have been explained in recital (9) of the provisional Regulation. The party did 
not put forward any reason at all that put into question the justification concerning the 
existence of relatively few transactions in this market. 

In order to ensure full comparability of the figures relating to the IP with those relating 
to previous years, any figures given in the parts on injury and causation given for the 
IP have been annualized. 

The  Chinese  party  also  claimed  that  the  selection  of  the  IP  was  made  in  order  to 
manipulate injury factors. The allegation has to be rejected.  

(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

(10)  The  Commission  was  not  and  could  not  be  aware  at  the  starting  point  of  the 
investigation of the complex set of data and figures related to injury indicators at the 
beginning of the investigation. These data were only established in the course of the 
investigation.  

(11) 

It should finally be noted that this investigation is not the first time that an IP is set for 
a period longer than 12 months (e.g. the 16 months IP on calcium metal originating in 
the  PRC  and  Russia4  or  the  18  months  IP  on  disodium  carbonate  originating  in  the 
USA5).  

(12)  The  Chinese  company  also  submitted  that  the  signature  of  the  contract  captures  all 
transactions at a certain point of time regardless as to whether a sale is made through a 

4 
5 

OJ L 104, 23.04.1994, p.5 (recital 5). 
OJ L 83, 13.04.1995, p.8 (recital 8). 

EN 

5 

   EN 

 
                                                 
tendering process or not and thus there is no need for an extended IP. This argument is 
not  convincing  because  it  does  not  address  the  basic  problem  of  the  relatively  few 
number of transactions in this business. The date of signing of the contract was only 
used in order to have a sufficiently clear basis about the material elements of the sales 
and at the same time to have a well defined date in order to distinguish what should be 
part of the IP and the preceding periods respectively and what should be left out.  

(13) 

In the absence of any other comments concerning the IP, recital (9) of the provisional 
Regulation is hereby confirmed.  

(14)  All  parties  were  informed  of  the  essential  facts  and  considerations  on  the  basis  of 
which it was intended to recommend the imposition of a definitive anti-dumping duty 
on  imports  of  certain  cargo  systems  originating  in  the  PRC  and  the  definitive 
collection  of  the  amounts  secured  by  way  of  the  provisional  duty.  They  were  also 
granted a period of time within which they could make representations subsequent to 
this disclosure. 

(15)  The  oral  and  written  comments  submitted  by  the  interested  parties  were  considered 

and taken into account where appropriate.  

3. 

PRODUCT CONCERNED AND LIKE PRODUCT 

(16)  Following  provisional  measures,  the  product  definition  was  revisited  in  light  of  the 
sole  cooperating  Chinese  exporting  producer's  comments  and  a  detailed  examination 
of the Union industry's claims. This process has led to the conclusion that no alpha or 
beta  technology  product  can  be  used  for  cargo  scanning.  Therefore,  it  is  considered 
warranted to exclude these two types of technologies from the product scope. No other 
representation was submitted that could put into doubt the provisional findings that all 
the remaining technologies (apart from alpha and beta) covered by the product scope 
can be used in cargo scanners and all product types serve the same purpose which is to 
scan  cargo  by  using  the  same  main  principal  feature,  i.e.  the  emission  of  radiation 
concentrated  in  scanning  cargo.  Indeed,  during  the  IP  gamma-based  units  of  the 
product concerned were sold in the EU. 

(17) 

(18) 

(19) 

In view of the above, it is concluded that all types of systems for scanning of cargo, 
based on the use of neutron technology or based on the use of X-rays with an X-ray 
source of 250 KeV or more or based on the use of gamma radiations, currently falling 
within CN codes ex 9022 19 00, ex 9022 29 00, ex 9027 80 17 and ex 9030 10 00 and 
motor vehicles equipped with such systems currently falling within CN code ex 8705 
90 90 share the same basic physical and technical characteristics, have the same basic 
end-uses  and  compete  with  one  another  on  the  Union  market.  On  this  basis  the 
conclusions in recitals (10) to (15) of the provisional Regulation are hereby confirmed 
to the extent they do not refer to alpha and beta radiation technologies. 

In the absence of any other comments concerning the like product, recital (16) of the 
provisional Regulation is hereby confirmed. 

In  view  of  the  above,  it  is  definitively  concluded  that  all  types  of  cargo  scanning 
systems  as  defined  above  are  alike  within  the  meaning  of  Article  1(4)  of  the  basic 
Regulation. 

EN 

6 

   EN 

 
1. 

Market economy treatment (MET) 

4. 

DUMPING 

(20)  The  sole  cooperating  exporting  producer  in  the  PRC  did  not  claim  market  economy 
treatment ('MET') and only requested individual treatment ('IT'). In the absence of any 
comments, recitals (19) and (20) of the provisional Regulation are hereby confirmed. 

2. 

Individual treatment (IT) 

(21) 

In  the  absence  of  any  comments  on  IT,  recitals  (21)  to  (25)  of  the  provisional 
Regulation are hereby confirmed. 

3. 

Normal value 

3.1. 

Analogue country 

(22)  No party disputed the selection of the United States of America (USA) as an analogue 

country. 

(23)  The sole Chinese exporting producer reiterated its comments on the non-cooperation 
of one company established in the USA related to the complainant. It argued that the 
complainant  used  data  relating  to  its  related  company  in  the  USA  to  compute  the 
normal  value  in  the  complaint  whereas  during  the  investigation  the  complainant 
submitted  that  its  related  USA  company  is  not  a  producer  of  the  like  product.  The 
Chinese  exporting  producer  submitted  that  the  US  related  party  of  the  complainant 
should  have  been  obliged  to  cooperate  with  the  investigation  and  failure  to  do  so 
should be considered as a reason to treat the complainant as non-cooperator and thus 
terminate  the  proceeding.  It  was  also  argued  that  the  Commission  should  have 
clarified  and  verified  whether  the  USA  company  is  a  producer  of  the  like  product. 
Finally, the Chinese exporting producer disputed the use of the EU's non preferential 
rules of origin as an indicator of whether an economic operator could be considered as 
a producer of a product.  

(24)  With respect to the comments relating to the use in the complaint of data derived from 
the complainant’s related USA company, it is noted that information on normal value 
in the complaint was based on general USA prices which were publicly available on 
the  US  Government's  GSA  Advantages  website.  For  two  product  types  of  the  like 
product  there  were  no  such  public  available  prices  and  the  normal  value  had  to  be 
therefore  constructed  by  the  complainant  on  the  basis  of  information  from  its 
production  costs  in  the  EU  adjusted  to  a  US  level  based  on  the  complainant's 
knowledge of the US market. 

(25)  Furthermore  the  sole  Chinese  exporting  producer  did  not  provide  any  evidence  that 
could put into question the findings stated in recital (32) of the provisional Regulation.  

(26)  EU anti-dumping law does not, in any event, contain a rule that a proceeding should 
be terminated because a producer in the analogue country decided not to cooperate in 
the  investigation.  The  fact  that  the  producer  is  related  to  the  complainant,  does  not 
alter  this  conclusion.  Moreover,  the  court  case  relied  on  by  the  sole  cooperating 
Chinese exporting producer, i.e. T-249/06 (Interpipe), is also not relevant here because 
in that case, the question at issue was to what extent a subsidiary of the Community 

EN 

7 

   EN 

 
producer was obliged to cooperate for the purposes of the injury determination. This is 
different  to  the  submission  of  data  for  establishing  normal  value  in  the  analogue 
country. 

(27)  With  respect  to  the  argument  put  forward  on  the  definition  of  the  concept  of  a 
producer  it  is  noted  that  the  investigation  has  established  that  the  complainant  is 
producing the like product in the EU and this manufacturing activity confers origin in 
line with the EU non-preferential rules of origin. No need exists by law to provide any 
conclusion with respect to the status of legal entities that are not under investigation in 
the  current  proceeding,  are  not  established  in  the  EU  or  whose  data  was  not  used 
during the investigation for the establishment of any finding.  

(28) 

In  the  absence  of  any  other  comments  concerning  the  selection  of  the  analogue 
country, recitals (26) to (37) of the provisional Regulation are hereby confirmed.  

3.2. 

Determination of normal value 

(29) 

It is recalled that the normal value was calculated on the basis of the data provided by 
the sole cooperating producer in the analogue country (i.e. United States of America) 
and the Union industry. Thus, for one product type imported in the EU, normal value 
was established on the basis of prices of domestic sales of the US producer of the like 
product produced in the US. The cooperating US producer did not produce any other 
product types which could be compared to the product types imported from China into 
the EU. In order to have a broader basis for normal value, the Commission therefore 
also examined whether for other product types normal value could be established on 
any other basis, in line with the provisions of Article 2(7)(a) of the basic Regulation 
(‘any  other  reasonable  basis’).  At  provisional  stage,  it  was  found  that  verified 
information on costs of the Union industry could be used for some product types. 

(30)  Following  the  imposition  of  provisional  measures,  the  sole  cooperating  Chinese 

producer submitted comments with regard to the normal value. 

(31)  The sole cooperating Chinese exporting producer claimed that the normal value should 
be  adjusted  downwards  by  an  amount  representing  the  cost  difference  between  self-
produced  and  externally  purchased  accelerators  since  the  Chinese  company  is 
producing accelerators while the US producer and the Union industry purchases them.  

(32)  As regards this claim, it should be noted that it was not accompanied by any factual 
evidence, despite the fact that the Commission requested such evidence in the course 
of the investigation. 

(33)  The  sole  cooperating  Chinese  exporting  producer  requested  the  Commission  to 
provide the exact specification of the specific model types used for the normal value 
calculation. In this respect it is noted that the Union industry and the analogue country 
producer consider this type of information as confidential. Indeed, if one disclosed the 
exact name of models, account taken of the fact that the models belonged only to one 
series and that the specific features of this series were already disclosed and of the fact 
that only a limited number of model types were used for the purpose of normal value 
calculations, then parties receiving such disclosure would be able to derive the actual 
prices charged for the specific model types or the cost and prices on the basis of which 

EN 

8 

   EN 

 
normal  value  was  constructed  for  various  model  types.  Such  information  is  indeed 
confidential by nature and therefore this request had to be rejected.  

(34)  The  sole  cooperating  Chinese  exporting  producer  expressed  doubts  on  the  way  the 
Commission  determined  the  normal  value  derived  from  Union  industry  data.  It 
submitted that actual  sales  prices  should  be  used  rather than  price offers  for  tenders. 
First of all, it is pertinent to recall that data from the Union industry were used in order 
to have higher percentage of representativity of the comparison between normal value 
and the export sales made by the sole cooperating Chinese producer. Therefore, to the 
extent possible, for the types of product concerned for which no normal value could be 
established  on  the  basis  of  information  available  in  the  US,  normal  value  was 
established on the basis of verified information from the Union industry for the same 
types of products that was imported from China.  

(35)  Thus, normal value was constructed for a number of product types (in any event other 
than  mobile  scanning  systems)  on  the  basis  of  standard  costs,  without  taking  into 
consideration  any  civil  works  or  other  on-site  costs,  and  by  adding  a  normal 
percentage for profit which was in any event significantly lower than the target profit 
used for the determination of the injury margin. The investigation established that the 
Union  industry  applies  standard  costs  for  all  types  of  products  it  offers.  The  records 
concerning  the  preparation  of  these  standard  costs,  the  way  they  are  calculated  and 
their comparison to the real cost in standard costing were verified and found to be in 
order.  

(36)  Furthermore, the Union industry’s cost structure was compared with the cost structure 
of the US producer of the like product. It was found that (i) the profit margin of the US 
producer was higher than the profit margin used to construct normal value on the basis 
of data from the Union industry and (ii) the Union industry's cost structure is broadly 
similar  to  the  one  of  the  analogue  country  producer  (the  exact  difference  cannot  be 
disclosed  for  reasons  of  confidentiality).  Thus,  the  use  of  Union  industry  data  for 
determining normal value is clearly in line with the provisions of Article 2(7)(a) of the 
basic Regulation.  

(37)  The Chinese company also commented on the public tender on the basis of which the 
US  producer  of  the  like  product  sold  mobile  cargo  scanning  systems  on  the  US 
market. It claimed that if the Commission uses a normal value on the basis of a tender 
that took place in 2005 and compares it with the export price relating to the IP, then 
such comparison cannot be considered to be fair. This allegation is not borne out by 
the facts established in the investigation. In the USA public tenders are organised to 
award a framework contract under which the winner of the tender can sell for a certain 
period  of  time.  The  framework  contract  did  not,  however,  contain  any  prices.  Such 
contract was indeed concluded in 2005, but the respective individual quotes for tender 
and signing of contracts took place in 2007, i.e. already within the IP. Therefore the 
Commission was satisfied that this tender should be taken into account in the IP and 
form part of the data for calculating the dumping margin. 

(38)  The sole cooperating Chinese exporting producer also requested clarification as to why 
the normal value for the relocatable system like the one sold in Latvia by the Chinese 
exporting  producer  was  not  derived  from  the  US  producer's  sales  but  rather  from 
Union industry data. To this respect it is noted that the Commission could not use data 

EN 

9 

   EN 

 
in the analogue country because such data had not been available from the cooperating 
analogue country producer. 

(39) 

In  the  absence  of  any  other  comments,  recitals  (38)  to  (42)  of  the  provisional 
Regulation are hereby confirmed. 

4. 

Export price  

(40)  Following  the  imposition  of  provisional  measures,  the  sole  cooperating  Chinese 

exporting producer submitted comments concerning the export price. 

(41)  These comments were made in relation to transactions in the Netherlands, Finland and 
Poland with respect to specific cost items. The comments which could be corroborated 
with  verified  data  were  accepted  and  the  calculation  of  the  dumping  margin  was 
revised accordingly. Comments referring to some installation costs had to be rejected. 
In this respect it is recalled that, although relevant actual data on the price of different 
elements of the product concerned was requested at various stages of the investigation, 
the company never made any attempt to provide any proposal for a conclusive break-
down. The amounts provided subsequent to the disclosure of the provisional findings 
are  new  information,  unsupported  by  accounting  information  or  other  evidence  that 
could be verified 

(42)  The Chinese company also clarified that it has made one sale outside public tenders. 
This  representation  is  confirmed.  Nevertheless,  the  investigation  established  that  this 
sale  was  not  a  sale  that  occurred  in  the  normal  course  of  business.  It  was  in  fact  a 
replacement  product  and  the  price  to  which  it  refers  was  agreed  a  number  of  years 
before  the  IP.  The  replacement  product  was  of  a  completely  different  type  as  the 
original product. Therefore, this was not a transaction falling in the IP but a settlement 
of  a  contract  concluded  previously.  Therefore,  the  export  price  relating  to  this 
transaction could not be retained in the calculation.  

(43) 

In  the  absence  of  any  other  comments,  recitals  (43)  to  (46)  of  the  provisional 
Regulation are hereby confirmed.  

5. 

Comparison 

(44)  The  sole  cooperating  Chinese  exporting  producer  claimed  that  the  comparison  was 
made  on  the  basis  of  truncated  product  control  numbers  that  ignore  the  physical 
differences  between  the  products  to  be  compared.  Moreover,  the  Chinese  company 
submitted  that  accelerators,  differences  in  types  of  chassis  and  energy  levels  should 
have been taken into consideration on price comparison.  

(45)  As regards the first claim the following points should be highlighted. With respect to 
data derived from the Union industry, it is recalled that calculations were made with 
data  directly  linked  to  respective  bids  in  public  tenders,  i.e.  for  product  types  that 
competed at the same level of trade at the same time and that were considered by the 
tendering authorities as being comparable. As to data derived from the US producer of 
the  like  product,  the  investigation  established  that  the  product  type  compared  fulfils 
the  strict  rules  set  out  under  Article  1(4)  of  the  basic  Regulation,  i.e.  it  is  a  product 
alike in all respects to the product under consideration. Therefore, the fact that not all 
physical differences are reflected in a product control number or a truncated product 

EN 

10 

   EN 

 
control  number  does  not  prevent  the  Commission  from  making  a  fair  comparison 
between normal value and export price. More importantly, differences that could affect 
price  comparability  were  looked  at.  The  information  on  file  indicates  that  products 
delivered  by  the  cooperating  Chinese  exporting  producer  often  contain  additional 
features as compared to those used as a basis for normal value. As a result, the normal 
value has been established conservatively.  

(46)  With respect to the accelerators, types of chassis and energy levels it should be noted 
that the requested adjustments fall under Article 2(10) of the basic Regulation but the 
differences  in  factors  claimed  have  not  been  demonstrated  to  affect  price  and  price 
comparability since no such information was provided by the Chinese party that could 
warrant an adjustment.  

(47)  The sole cooperating Chinese exporting producer submitted that the accelerator is an 
important component of the product concerned and should have been included in the 
product control number structure. The Commission did not include the accelerator in 
the  product  control  number  structure  as  none  of  the  parties  concerned  presented  any 
evidence  that  pointed  to  the  fact  that  the  accelerator  was  a  factor  distinguishing  the 
different product types.  

(48)  The  sole  cooperating  Chinese  exporting  producer  also  requested  identification  and 
quantification of the adjustments made to the normal value in order to bring it back to 
an ex-works basis. Adjustments for warranty and credit costs were made to the normal 
value determined on the basis of the domestic sales prices of the sole US producer of 
the  like  product.  Adjustments  for  transport  costs,  warranty  costs,  training  costs, 
documentation costs and agent fees were made to the normal value determined on the 
basis of data of the Union industry. Concerning the request for quantification of these 
adjustments,  the  Commission  is  not  able  to  disclose  such  data  as  this  information  is 
considered confidential by nature. It must be noted that the corresponding data when 
calculating  the  ex-works  export  price  have  also  not  been  disclosed  to  the  Union 
industry.  

(49) 

In  the  absence  of  any  other  comments,  recitals  (47)  and  (48)  of  the  provisional 
Regulation are hereby confirmed.  

6. 

Dumping margins 

(50)  The  sole  cooperating  Chinese  exporting  producer  criticized  the  fact  that  some  sales 
were excluded from the dumping calculation. In this respect it is noted that the sales 
values of the transactions in question were originally considered for the establishment 
of  the  export  prices.  However,  the  normal  value  for  these  transactions  could  not  be 
established.  Thus,  no  comparison  could  be  made  between  normal  value  and  export 
price.  

(51)  The  Chinese  exporting  producer  also  claimed  that  the  CIF  values  of  the  sales 
mentioned under recital (50) should have been included in the total CIF value which 
served as a denominator for the dumping calculations. This claim cannot be accepted. 
The  calculation  of  a  total  dumping  is  the  result  of  the  division  of  the  sum  of  the 
different dumping found (where a price comparison could be made) with the sum of 
the corresponding CIF values. The inclusion in the calculations of the CIF values of 
sales for which no comparison between normal value and export price could be made 

EN 

11 

   EN 

 
due to a lack of an established normal value, would cause an arithmetical flaw in these 
calculations  as  the  nominator  and  the  denominator  would  no  longer  refer  to 
comparable transactions.  

(52) 

In  the  absence  of  any  other  comments,  recitals  (49)  and  (50)  of  the  provisional 
Regulation are hereby confirmed.  

(53)  Taking  into  account  the  above,  the  definitive  dumping  margin,  expressed  as  a 

percentage of the CIF Union frontier price duty unpaid, is 38,8%. 

5. 

INJURY 

(54)  Comments  on  the  findings  concerning  injury  were  received  only  from  the  sole 
cooperating  Chinese  exporting  producer,  some  of  which  were  a  mere  repetition  of 
comments already addressed in the provisional Regulation. 

(55)  Arguments concerning comments already addressed in the provisional Regulation are 

not repeated in this Regulation.  

1. 

General remarks 

(56) 

(57) 

It is recalled that in this case the information presented refers to two Union producers 
and  one  exporting  producer  which  represent  essentially  the  Union  market.  Account 
taken  of  the  above,  no  precise  figures  can  be  given  in  order  to  protect  business 
proprietary information. Thus, indicators are given in indexed form or ranges.  

In  its  reply  to  the  provisional  disclosure,  the  sole  cooperating  Chinese  exporting 
producer requested that the injury analysis should be presented on an annualised basis. 
Although  this  does  not  alter  the  substance  of  the  data,  but  only  its  presentation,  the 
claim  was  considered  warranted  and  thus  the  analysis  presented  hereunder  is 
annualized throughout.  

(58)  The Chinese company disputed the data provided in the company specific provisional 
disclosure document on its sales volume for the period considered (2004 up to end of 
IP). It is noted that the Commission provided an exhaustive and complete break down 
to  the  party  of  the  compiled  data.  Feed-back  received  by  the  Chinese  party  was 
consequently cross checked with the available information provided by the authorities 
of Member States as users of the product concerned and the producers in the Union. 
Therefore,  at  the  definitive  stage  of  the  investigation  the  details  concerning  the 
Chinese sales to the Union and its respective impact are known. 

(59)  The  sole  cooperating  Chinese  exporting  producer  argued  that  where  there  is  no  bid 
from  the  Union  industry  its  sales  should  be  excluded  from  the  injury  and  causation 
analysis. However it should be noted that the institutions cannot say that the fact that 
during  the  IP  the  Union  industry  did  not  bid  in  one  specific  tender  but  the  Chinese 
exporting producer did in that case entailed a self-inflicted injury to such an extent that 
it  breaks  the  causal  link  between  injury  and  dumping.  Moreover,  to  participate  in  a 
tender  does  not  come  without  a  cost  (translations,  agent,  sometimes  paying  for  the 
tendering etc.) so companies do not bid if they are not sure that they have a chance. 

(60) 

It  was  also  claimed  that  where  the  complainant  (Smiths  Detection  Group  Limited) 
made offers exceeding the price ceiling specified in tenders, they should be excluded 

EN 

12 

   EN 

 
from the injury and causation analysis. Nevertheless, the investigation has not brought 
to light any verifiable information confirming that such offers existed.  

(61)  The sole cooperating Chinese exporting producer submitted that there is an asymmetry 
of the injury data. This is because sales volumes, market share and profit refer to sales 
by  contract  date  while  certain  other  injury  factors  were  derived  from  the  financial 
accounting  of  the  complainant  and  therefore  may  not  correspond  in  time.  At  the 
initiation of this investigation the Commission services had to set a clear-cut reference 
point  for  sales  which  would  be  applicable  to  all  companies  cooperating  with  the 
proceeding.  It  was  decided  that  the  contract  date  provided  the  best  reference  point 
because there is often a large time gap between tender initiation dates and the contract 
date, and also between the contract date and the final invoice date. In addition, several 
invoices often cover a contract and a contract can cover several years.  

(62)  Having  set  the  contract  date  as  the  reference  point,  it  was  not  practicable  to  ask  the 
Union producers to compile their entire questionnaire response on the basis of contract 
dates.  To  do  so  would  have  meant  that  they  should  have  had  to  completely  rework 
their  accounting  in  a  manner  which  is  not  normal  practice  and  which  would  have 
introduced numerous ambiguities with the consequent negative impact on the quality 
of such information. Bearing in mind that it was not viable to use invoice dates as the 
reference point, the injury data was supplied in this case in the best manner possible 
for this product.  

(63) 

In  the  course  of  month  ten  of  the  investigation  i.e.  in  their  provisional  disclosure 
response, the sole cooperating Chinese exporting producer also disputed the fact that 
the  IP  covered  an  18-month  period  stating  that  it  should  have  been  limited  to  the 
calendar year of 2008. This claim had to be rejected because of the reasons supporting 
an  18-month  period  as  explained  in  the  provisional  Regulation  and  above  in  recitals 
(5) to (11). Moreover, such change would have prevented the timely conclusion of the 
investigation  because  it  would  have  meant  asking  all  cooperating  companies  to  re-
submit their questionnaire responses on the basis of a revised IP. 

(64)  The Chinese party also cast doubts as to whether the many EU companies related to 
the complainant were properly included in the Commission's injury analysis. However 
the verification of the complainant's questionnaire response was carried out with full 
cooperation  of  the  entire  group  and  the  Commission  was  satisfied  that  the  injury 
indicators  and  calculations  were  analysed  properly  for  the  entire  group.  As  was 
clarified  to  the  Chinese  party  before  the  adoption  of  provisional  measures,  the  EU 
companies  to  which  it  refers  have  an  insignificant  role,  if  any,  in  the  manufacturing 
and marketing of the relevant product. In fact, their role is limited to some functions 
referring  to  sales  of  the  product  under  investigation  (e.g.  servicing)  and  the  sale  of 
products not falling within the scope of this Regulation. 

(65)  The  sole  cooperating  Chinese  exporting  producer  finally  claimed  that,  insofar  as  the 
Union industry could not meet the technical requirements of certain tenders or did not 
participate at all in the tenders, no dumping causing injury to the EU industry occurred 
for these transactions. This claim could not be accepted.  

(66)  First of all it is noted that the fact that for some export transactions no normal value 
can be established does not put into question the finding of injurious dumping as long 
as the basis for the calculation is considered as representative. This was certainly the 

EN 

13 

   EN 

 
case  here  (see  above  recital  (50)).  For  the  specific  transactions  in  question  the 
following  should  be  noted.  The  transaction  referring  to  technical  requirement 
problems  concerns  one  product  type  sold  on  the  basis  of  one  tender.  The  Chinese 
company, on the one hand, and the two Union producers on the other interpreted the 
tender  quite  differently.  The  Chinese  company  claimed  towards  the  end  of  the 
investigation that the product type in question is quite different from a mobile scanner 
while the Union industry was of the opinion that this is mobile scanner. It is therefore 
clear that Union industry participated into this tender with the fair belief that it should 
offer  a  specific  product  type.  Even  more  importantly,  its  participation  entailed  costs 
(translations,  agent,  paying  for  the  tendering  etc.).  Thus,  the  fact  that  the  final 
conclusion of the tendering process was that the Union industry did not present a bid 
on the same terms does not mean that such imports have automatically not contributed 
to injury.  

(67)  As  regards  the  remaining  transactions  the  Chinese  exporting  producer  refers  to  a 
transaction  not  falling  in  the  IP,  which  as  explained  under  recital  (42),  is  in  fact  a 
settlement  of  a  contract  concluded  previously,  and  to  a  transaction  where  the  Union 
industry  did  not  participate  to  the  tender.  With  respect  to  the  former  transaction,  no 
finding  with  respect  to  injury  was  made.  With  respect  to  the  latter  transaction,  the 
conclusions of recital (59) apply.  

2. 

Union production and Union industry 

(68) 

In  the  course  of  month  eleven  of  the  investigation,  a  Romanian  company  came 
forward with the claim that it was an EU producer of certain cargo scanning systems 
during the IP. The Commission sought and verified information concerning the actual 
status of this company. According to information submitted both by the company and 
by  other  actors  in  this  market,  including  the  Chinese  exporting  producer,  this 
company’s  involvement  in  the  like  product  is  closely  linked  to  the  production 
activities  of  a  well-established  Union  producer  of  cargo  scanning  systems. 
Consequently,  in  the  context  of  the  current  investigation,  the  only  sale  made  by  the 
Romanian  company  during  the  IP  is  considered  to  have  been  made  by  the  Union 
producer of cargo scanning systems it has worked with. 

(69)  As  regards  macro-economic  indicators  such  as  consumption,  production,  capacity 
utilization, stocks, sales volume,  market share, employment, productivity and wages, 
as well as export sales, it should be noted that they have been analysed with respect to 
all Union producers.  

(70) 

In the absence of any other comments, the findings set out in recitals (52) to (56) of 
the provisional Regulation are hereby confirmed.  

3. 

Union consumption 

(71)  The  sole  cooperating  Chinese  exporting  party  argued  that  the  level  of  the  Union 
consumption as set out in the provisional Regulation was not accurate. In this respect, 
the  Commission  contacted  interested  parties,  notably  users,  with  a  view  to  collect 
further information on EU consumption during the period considered. On the basis of 
additional  input  provided  by  parties,  it  is  considered  that  the  EU  consumption 
developed as follows: 

EN 

14 

   EN 

 
2004 

100 

2005 

2006 

2007 

62 

114 

110 

IP 

111 

Index: 
2004=100 

Source: Questionnaire replies and subsequent submissions 

(72)  The consumption of the product concerned and the like product in the EU increased by 

11% during the period considered. 

(73)  The  Chinese  party  claimed  that  actual  consumption  data  should  be  disclosed  rather 
than indexed information. In this regard it is noted that, as it has already been clearly 
explained in recital (54) of the provisional Regulation, there are a very limited number 
of parties involved in the production of certain cargo scanning systems in the EU and 
any disclosure of actual consumption data would lead to disclosure of actual sales of 
parties which is considered as information that is confidential by nature. 

(74) 

It  was  also  submitted  that  consumption  should  take  into  account  all  units  of  the 
product concerned consumed on the EU market. In this regard it is noted that Union 
consumption figures take into consideration all sales of the product under investigation 
(whether  they  result  from  a  tendering  process  or  not)  of  all  parties  (to  the  extent 
known  by  the  Commission).  Data  was  cross  checked  and  verified  to  the  various 
sources  available.  However,  the  consumption  figures  only  comprise  actual  sales  and 
not  the  small  number  of  transactions  reported  to  the  Commission  which  were  either 
leased  or  donated.  Had  these  transactions  been  included,  the  Chinese  market  share 
would have been even higher.  

(75) 

In  the  absence  of  any  other  comments,  recitals  (57)  and  (58)  of  the  provisional 
Regulation, modified as set out in recitals (71) to (74) above, are hereby confirmed.  

4. 

Imports from the country concerned 

(a) Volume, price and market share of dumped imports of the product concerned 

(76)  As  explained  in  recitals  (57)  and  (58)  above,  volumes  and  market  share  of  dumped 
imports of the product concerned were revised. The annualisation of data and update 
of volumes confirmed the conclusions in the provisional Regulation that imports and 
their  market  share  have  increased  significantly  since  2004.  The  Chinese  party 
questioned the methodology employed to index this data. It is important to highlight 
that  the  actual  data  used,  however  indexed,  at  both  provisional  and  definitive  stage 
shows a significant increase of volume and market share of imports from the country 
concerned.  

(77)  The  volume  of  imports  of  the  product  concerned  increased  by  more  than  150% 

through the period considered.  

2004 

100 

2005 

2006 

2007 

75 

250 

200 

IP 

267 

Volume of 
imports 

EN 

15 

   EN 

 
 
 
Index: 2004=100 

Source: Questionnaire replies and subsequent submissions 

(78)  As stated in the provisional Regulation at recital (60), the average export price varied 
enormously  according  to  the  types  of  cargo  scanner  imported  and  no  meaningful 
conclusions could be derived from this.  

(79)  The market share of the imports from the country concerned more than doubled in the 

period considered.  

2004 

2005 

2006 

2007 

IP 

15-25 % 

20-30 % 

40-50 % 

30-40 % 

40-50 % 

100 

121 

219 

183 

240 

PRC market 
share 

Index: 
2004=100 

Source: Questionnaire replies and subsequent submissions 

(80)  The sole cooperating Chinese exporting producer argued that post-IP volumes (in the 
form  of  tenders  won  during  the  IP  that  led  to  the  signing  of  contracts  after  the  IP) 
should  also  be  examined.  In  accordance  with  the  provisions  of  the  basic  Regulation, 
post-IP  events  are  not  taken  into  account,  except  in  exceptional  circumstances.  The 
Chinese exporting producer did not invoke such exceptional circumstances. Moreover, 
for reasons of comparability it would have been necessary to also reallocate the sales 
in periods preceding the IP. The claim was therefore not accepted. Bearing in mind the 
increases of imports in terms of volume and market share shown above, this decision 
had in any event no impact on the factors examined in this case.  

(b) Undercutting 

(81)  The  sole  cooperating  Chinese  exporting  producer  submitted  that  the  undercutting 
methodology used at the provisional stage was flawed. In its view it was not possible 
to compare its actual sales prices with the tender prices offered by the Union industry. 
In  this  respect  it  is  noted  that  this  methodology  was  considered  to  be  the  most 
appropriate because of the need of a fair comparison involving a product which is very 
complex in nature and involved in public procurement. No other viable methods were 
identified by interested parties.  

(82) 

It  should  be  stated  that  although  the  methodology  remained  the  same  as  described 
above,  minor  adjustments  were  made  to  the  calculation  which  reduced  the  Union 
industry's prices and these were disclosed to the interested parties. 

(83)  The  revised  comparison  shows  that,  during  the  IP,  imports  of  the  product  concerned 
were sold in the Union at prices which undercut the Union industry's prices by a range 
of  15  to  20%.  It  should  be  noted  that  the  Chinese  exporting  producer  claimed  in  its 
submissions  that  one  of  the  reasons  why  it  won  contracts  was  because  it  offered  a 
superior  product  specification. In terms of undercutting (and underselling)  this  could 
have  led  to  adjustments  being  made  and  higher  injury  margins  being  calculated.  No 

EN 

16 

   EN 

 
 
such adjustment was made because this was not proven to be valid and there was no 
information to quantify them. 

(84) 

In  the  absence  of  any  other  comments,  the  rest  of  the  information  in  recitals  (59)  to 
(62) of the provisional Regulation, modified as set out in recitals (76) to (83) above, is 
hereby confirmed. 

5. 

Situation of the Union industry 

Preliminary remarks 

(85) 

It should be noted that the data for the injury indicators are presented differently in the 
definitive Regulation to take account of two issues, as stated above in recitals (57) and 
(69),  namely  the  request  of  the  sole  cooperating  Chinese  exporting  producer  to 
annualize data for the 18 months IP and the compilation in the analysis of the macro 
indicators of data derived from the second Union producer.  

Injury indicators 

Production, capacity and capacity utilisation 

2004 

2005 

2006 

2007 

100 

100 

100 

75 

83 

90 

94 

90 

104 

173 

185 

94 

IP 

151 

200 

76 

Production  

Capacity 

Capacity 
utilization 

Index: 2004=100 

Source: Questionnaire replies  

(86)  During  the  period  considered,  the  Union  industry's  production  volume  increased  by 
51%.  This  positive  trend  is  mainly  due  to  the  good  export  sales  of  the  like  product. 
The Union industry doubled its production capacity over the period considered for the 
same  reason.  Capacity  utilisation  of the Union industry went  down by 24% over  the 
period considered.  

(87)  Bearing in mind that the above figures relate to production, an important part of which 
is  sold  on  markets  outside  the  EU,  it  is  not  considered  that  these  are  important 
indicators in this case. 

Stocks 

Stocks  

2004 

100 

2005 

164 

2006 

2007 

155 

127 

IP 

136 

Index: 2004=100 

Source: Questionnaire replies  

EN 

17 

   EN 

 
 
 
(88)  The Union industry's stock level showed an upward and fluctuating trend through the 
period  considered.  However,  this  was  not  considered  to  be  an  important  indicator 
because this industry operates on a production to order basis, stocks are always kept to 
a very low level and an important part of these stocks was earmarked for the export 
market.  

Sales volume, sales price and market share 

2004 

100 

2005 

2006 

67 

93 

2007 

100 

IP 

76 

Union sales 
volume 

Market share 

65-75% 

70-80% 

55-65% 

60-70% 

45-55% 

100 

108 

82 

91 

68 

Index of market 
share 

Index: 2004=100 

Source: Questionnaire replies and subsequent submissions 

(89)  Sales of the Union industry decreased during the period considered and in the IP were 
almost  25%  less  than  their  original  volume.  The  Union  industry  lost  around  20 
percentage points of its market share between 2004 and the end of the IP.  

(90)  The findings to sales prices at recital (69) of the provisional Regulation are confirmed. 

(91)  The  sole  cooperating  Chinese  exporting  producer  reiterated  its  request  to  receive 
information on public tenders awarded to the complainant and on the extent to which 
certain  tenders  were  taken  into  account  in  the  framework  of  this  investigation. 
However, to give such level of detail was not deemed appropriate for confidentiality 
reasons. It also sought further confirmation that the date of signature of sales contracts 
of  tendering  proceedings  was  used  as  the  determining  factor  to  calculate  Union 
consumption.  In  this  respect  the  institutions  confirm  that  the  methodology  explained 
under  recital  (57)  of  the  provisional  Regulation  was  used  for  all  parties.  The  same 
party also sought clarification that the data of the complainant referred to both of its 
production  sites.  In  this  respect,  as  stated  under  recital  (7)(a)  of  the  provisional 
Regulation,  it  is  confirmed  that  the  data  reported  by  the  complainant  was  compiled 
from both of its production sites.  

Profitability 

Pre-tax profit 
margin 

Index: 2004=100 

2004 

100 

2005 

2006 

2007 

85 

90 

7 

IP 

-50 

Source: Questionnaire replies  

EN 

18 

   EN 

 
 
 
(92)  Over the period considered the Union industry has become loss-making. The situation 

was particularly bad during the IP. 

Investments, return on investment, cash flow and the ability to raise capital 

2004 

100 

2005 

164 

2006 

2007 

100 

354 

IP 

105 

110-120% 

85-95% 

210-220% 

215-225% 

60-70% 

Investments 

Return on 
investment 

Cash flow 

100 

124 

257 

186 

-71 

Index: 2004=100 

Source: Questionnaire replies  

(93) 

Investments remained low over the period considered. A major part of the investments 
was devoted to maintaining the Union industry's operating premises. The higher level 
of investment observed in 2007 concerns a new patent to improve the performance of 
the product concerned. It is recalled that this business is know-how intensive and not 
investment intensive. 

(94)  The return on investment, expressed in terms of net profits of the Union industry and 
the net book value of its investments, shows a drop during the period considered, but 
is  not  a  good  injury  indicator  because  it  mainly  reflects  assets  that  had  already  been 
depreciated. 

(95)  The  cash  flow  situation  of  the  Union  industry  deteriorated  severely  over  the  period 

considered.  

(96)  Bearing in mind that the production of cargo scanning systems constituted a small part 
of the complainant company's activity, the ability to raise capital was not considered to 
be an important indicator in this case.  

Employment, productivity and wages 

2004 

2005 

2006 

2007 

110 

98 

129 

102 

160 

106 

IP 

167 

106 

68 

73 

109 

135 

100 

100 

100 

Employment  

Average labour 
cost per worker  

Productivity per 
worker  

Index: 2004=100 

Source: Questionnaire replies  

EN 

19 

   EN 

 
 
 
(97)  The  employment,  average  labour  cost  per  worker  and  productivity  per  worker 
increased during the period considered. However, these indicators are not considered 
to  be  important  indicators  in  this  case  because  much  of  the  employment  relates  to 
production of certain cargo scanning systems sold on the export market. 

Magnitude of dumping 

(98)  The findings of recital (76) of the provisional Regulation are confirmed. 

Other comments 

(99) 

In  the  absence  of  any  other  comments,  the  rest  of  the  information  in  recitals  (64)  to 
(76) of the provisional Regulation, modified as set out in recitals (85) to (98) above, is 
hereby confirmed.  

6. 

Conclusion on injury  

(100)  The findings contained in the provisional Regulation regarding the varying degrees of 
importance  of  the  injury  indicators  in  this  particular  proceeding  remain  valid.  The 
most  important  injury  factors  are  considered  to  be  profitability,  market  share  and 
undercutting because they reflect directly the fortunes of the Union industry in relation 
to its activity on the Union market. The reasons why certain  other indicators are not 
that relevant are explained above. 

(101)  As regards profitability, the Union industry  has become loss making over  the period 
considered  and  the  market  share  of  the  Union  producers  has  fallen  by  24%. 
Furthermore, the Chinese exporting producer undercut the complainant by a range of 
15 to 20%.  

(102)  Indeed, the Chinese market share of the product concerned in the Union increased by 
140%  during the period considered while at the same time  Union industry showed a 
significant decrease in sales volume (-24%) and market share (20 percentage points). 

(103)  As explained in the general remarks preceding this injury analysis, the data has been 
presented in a different way to the provisional Regulation. Clearly, whether the data is 
shown in an annualised format or not, does not change the substance of the data but 
only  its  presentation.  However,  the  injury  data  presented  above  (in  respect  of  the 
macro indicators) also includes data of the second Union producer. It is thus concluded 
that the revised data shown above confirms the provisional injury conclusions, i.e. that 
an injurious situation existed over the period considered within the meaning of Article 
3(5) of the basic Regulation. 

(104)  Account taken of the above, it is considered that the conclusions regarding the material 
injury suffered by the Union industry as set out in the provisional Regulation are not 
altered due to the change of presentation referred to in recital (85). In the absence of 
any other comments in this respect, recitals (77) to (80) of the provisional Regulation, 
modified as set out in recitals (100) to (103) above, are hereby confirmed. 

6. 

CAUSATION 

(105)  Comments  on  the  findings  concerning  causation  were  received  only  from  the  sole 

cooperating Chinese exporting producer. 

EN 

20 

   EN 

 
(106)  It is recalled that the effects of dumped imports and other factors have been annualised 

for the reasons explained in recital (85).  

1. 

Effects of the dumped imports  

(107)  The  market  share  of  the  dumped  imports  increased  by  140%  during  the  period 
considered,  whilst  the  Union's  industry  market  share  decreased  by  32%.  These 
negative  changes  for  the  Union  industry  occurred  against  the  backdrop  of  the  EU 
consumption that increased by 11% between 2004 and the IP (annualised figure). 

2. 

Effects of other factors  

Export performance of the Union industry  

2004 

100 

2005 

2006 

2007 

93 

123 

245 

IP 

233 

100  

107 

60 

63 

70 

Export sales of 
Union 
production  

Export sales 
price  

Index: 2004=100 

Source: Questionnaire replies  

(108)  The  export  volume  of  the  Union  industry  increased  during  the  period  considered. 
Exports  represented  the  overwhelming  majority  (between  85  and  95%)  of  the  total 
volume of EU production in the IP.  

Imports from third countries 

(109)  The sole cooperating Chinese exporting producer suggested that Commission failed to 
analyse imports from the USA and that more cargo scanners were sold to the EU by 
US companies than by the PRC during the IP, but this claim is not supported by actual 
facts and concrete verifiable evidence. 

(110)  Following  provisional  measures,  the  Commission  actively  sought  to  have  more 
information  on  US  imports  but  it  finally  confirmed  the  figures  for  the  volume  of 
imports from the USA established at provisional stage. 

The Union industry did not present a bid for all tendering processes taking place during 

the IP 

(111)  The  sole  cooperating  Chinese  exporting  producer  criticized  the  consequences  of  the 
non-participation  in  some  tenders  of  the  Union  industry.  In  this  respect  we  note  that 
the investigation took stock of the fact that not all parties (the Union industry, the sole 
cooperating  Chinese  exporting  producer,  other  producers  of  certain  cargo  scanning 
systems) presented offers to each and every tendering process. No compelling factor 
was  found  to  suggest  that  the  clearly  observed  injury  during  the  period  considered 
results  from  the  Union  industry  not  participating  in  bids  that  were  not  deemed 

EN 

21 

   EN 

 
 
reasonable  business  options.  The  existence  of  a  reasonable  business  option  as  a 
determining factor in participating to a bid is confirmed by the fact that participation in 
a tender entails costs (translations, agent, sometimes paying for the tendering etc.) and 
companies do not bid if they are not sure that they have a chance.  

Impact of non-price related factors of the product concerned  

(112)  The  sole  cooperating  Chinese  exporting  producer  insisted  on  claiming  that  the 
injurious effects of non-price related factors such as other technical factors should be 
further analysed under causation. 

(113)  Indeed,  the  Union  industry  would  have  been  technically  able  to  match  the  same 
specifications as those of the Chinese product. However, this would have meant that 
the Union industry would have had to offer the product at a higher price. In fact, this 
issue  reveals  the  full  effect  of  the  dumping  of  the  sole  Chinese  exporter.  Part  of  the 
dumping is due to the fact that the Chinese exporting producer simply offers a product 
with more features. Since Directive 2004/18/EC of the European Parliament and of the 
Council of 31 March 2004 on the coordination of procedures for the award of public 
works  contracts,  public  supply  contracts  and  public  service  contracts  (OJ  L  134, 
30.4.2004, p. 114), allows the application of two award criteria only: 'the lowest price' 
and  'the  most  economically  advantageous  tender',  the  contract  had  to  be  quasi 
automatically awarded to the Chinese supplier engaged in dumping. The offers made 
by the Chinese exporter would have no longer been economically advantageous if they 
had  not  been  dumped,  i.e.  if  they  had  at  least  been  higher  in  order  to  reflect  the 
additional features. 

(114)  It should finally be pointed out that the investigation showed that the complainant met 
all the technical specifications in tenders where both the complainant and the Chinese 
exporting producer presented a bid on the same terms. 

Allegation of higher prices than the complainant 

(115)  The  sole  cooperating  Chinese  exporting  producer  also  claimed  that  there  were  cases 
where tenders were awarded to the Chinese company in spite of the fact that it offered 
a higher price than the complainant. Thus, such transactions should be deemed not to 
have caused injury.  

(116)  In this respect it should be noted that the investigation has established the existence of 
only  one  case  of  tendering  process  where  at  first  sight  it  seems  that  the  sole 
cooperating Chinese exporting producer won a tender in spite of the fact that it offered 
a higher price than the complainant. However, the investigation revealed that in reality 
this was not the case because the offer made by the Chinese company includes many 
additional  features  for  the  same  price.  If  adjustments  were  to  be  made  for  all  these 
additional features, the export price would have been lower entailing a higher dumping 
margin. No other verifiable information was presented to support the claim that other 
tenders  existed  where  the  Chinese  company  offered  a  higher  price  than  the 
complainant.  

Situation with respect to the other Union producer 

EN 

22 

   EN 

 
(117)  The  sole  cooperating  Chinese  exporting  producer  submitted  that  the  other  Union 
producer  engaged  in  predatory  pricing  thus  causing  material  injury  to  the  Union 
industry  and  that  this  party  is  not  injured  by  imports  from  China  because  it  has 
discontinued its active cooperation.  

(118)  First of all, it is recalled that the other Union producer has provided information with 
respect  to  this  proceeding  and  the  injury  analysis  is  assessed  for  the  whole  Union 
industry.  Moreover,  it  is  pertinent  to  note  that  the  claims  of  the  Chinese  party  on 
predatory pricing are not supported by any factual evidence and cannot undermine the 
findings of the investigation as presented at recital (89) of the provisional Regulation.  

3. 

Conclusion on causation 

(119)  In  the  absence  of  any  other  comments,  recitals  (81)  to  (95)  of  the  provisional 
Regulation, modified as set out in recitals (105) to (118) above, are hereby confirmed. 

(120)  In the light of the above, the provisional finding that the material injury to the Union 

industry was caused by the dumped imports is confirmed. 

1. 

Interest of users 

7. 

UNION INTEREST 

(121)  Two  users  that  had  already  sent  representations  at  provisional  stage  insisted  on  their 
initial  comments.  They  highlight  their  concerns  about  competition  and  technological 
developments, should definitive measures be imposed. Both concerns were, however, 
addressed  in  the  provisional  Regulation  and  nothing  new  was  submitted  that  could 
confirm that competition and technological developments would be harmed at least in 
the short to medium term by the imposition of a definitive duty.  

2. 

Conclusion on Union interest 

(122)  The  two  representations  above  have  not  altered  the  provisional  conclusions.  In  the 
absence of any other comments, recitals (96) to (113) of the provisional Regulation are 
hereby confirmed. 

8. 

DEFINITIVE ANTI-DUMPING MEASURES 

1. 

Injury elimination level 

(123)  The sole cooperating Chinese exporting producer made comments on the underselling 

calculation. Where warranted, adjustments were made at definitive stage. 

(124)  The  Chinese  company  submitted  a  claim  in  relation  to  the  injury  margin  that  was 
similar to the one in recital (51) of this Regulation. This claim had to be rejected for 
the same reasons as those stated in recital (51) . 

(125)  The Chinese company also sought clarifications on the method used to set the pre-tax 
profit margin and in particular to which year this profit margin refers. In this respect it 
is noted that the pre-tax profit setting was the result of an analysis of data referring to 
the financial years 2006 and 2007. 

EN 

23 

   EN 

 
(126)  The  calculations  made  on  the  definitive  dumping  margin  and  the  definitive  injury 
elimination  level  led  to  the  later  being  lower  than  the  former.  In  the  absence  of  any 
other comments, recitals (114) to (117) of the provisional Regulation, modified as set 
out in recitals (123) to (126) of the present Regulation, are hereby confirmed. 

2. 

Definitive measures 

(127)  In  view  of  the  conclusions  reached  with  regard  to  dumping,  injury,  causation  and 
Union  interest,  and  in  accordance  with  Article  9(4)  of  the  basic  Regulation,  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. This was 
calculated  at  34%  having  fallen  significantly  since  the  provisional  stage,  when  the 
duty rate was set at the level of the dumping found. 

(128)  On the basis of the above, the rate of the definitive anti-dumping duty for the PRC is 

34%. 

(129)  In  line  with  recital  (120)  of  the  provisional  Regulation,  for  reasons  of  careful 
monitoring  of  the  effectiveness  of  the  measures,  the  relevant  authorities  of  Member 
States are requested to provide to the Commission on a confidential and periodic basis 
information concerning EU public procurement proceedings leading to sales of cargo 
scanning systems. 

9. 

DEFINITIVE COLLECTION OF THE PROVISIONAL DUTY 

(130)  In  view  of  the  magnitude  of  the  dumping  margin  found  and  given  the  level  of  the 
injury  caused  to  the  Union  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  the  duty 
definitively imposed by the present Regulation. Since the definitive duty is lower than 
the provisional duty, the amounts secured in excess of the definitive duty rate shall be 
released,  

HAS ADOPTED THIS REGULATION: 

Article 1 

1. A definitive anti-dumping duty is hereby imposed on systems for scanning of cargo, based 
on the use of neutron technology or based on the use of X-rays with an X-ray source of 250 
KeV or more or based on the use of gamma radiations, currently falling within CN codes ex 
9022 19 00, ex 9022 29 00, ex 9027 80 17 and ex 9030 10 00 (TARIC codes 9022 19 00 10, 
9022  29  00  10,  9027  80  17  10  and  9030  10  00  91)  and  motor  vehicles  equipped  with  such 
systems  currently  falling  within  CN  code  ex  8705  90  90  (TARIC  code  8705  90  90  10) 
originating in the People's Republic of China.  

2.  The  rate  of  the  definitive  anti-dumping  duty  applicable  to  the  net,  free-at-  Union-frontier 
price, before duty, of the products described in paragraph 1 shall be 34%. 

3. Unless otherwise specified, the provisions in force concerning customs duties shall apply. 

EN 

24 

   EN 

 
Article 2 

Amounts secured by way of the provisional anti-dumping duty pursuant to Regulation (EU) 
No  1242/2009  on  imports  of  systems  for  scanning  of  cargo,  based  on  the  use  of  neutron 
technology or based on the use of X-rays with an X-ray source of 250 KeV or more or based 
on the use of gamma radiations, currently falling within CN codes ex 9022 19 00, ex 9022 29 
00, ex 9027 80 17 and ex 9030 10 00 (TARIC codes 9022 19 00 10, 9022 29 00 10, 9027 80 
17 10 and 9030  10  00  91)  and  motor  vehicles equipped with  such  systems  currently falling 
within  CN  code  ex  8705  90  90  (TARIC  code  8705  90  90  10)  originating  in  the  People's 
Republic  of  China  shall  be  definitively  collected  at  the  rate  of  the  definitive  duty  imposed 
pursuant to Article 1. The amounts secured in excess of the rate of the definitive anti-dumping 
duty shall be released.  

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

Article 3 

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

Done at Brussels,  

For the Council 
The President 
[…] 

EN 

25 

   EN