Proposal for a COUNCIL REGULATION clarifying the scope of the definitive anti-dumping duties imposed by Regulation (EC) No 261/2008 on imports of certain compressors originating in the People's Republic of China
Date: 2011-11-15
Institutions: European Commission
Subjects: China, anti-dumping duty, import (EU), machine tool, originating product

EUROPEAN COMMISSION 

Brussels, 15.11.2011 
COM(2011) 756 final 

2011/0342 (NLE) 

Proposal for a 

COUNCIL REGULATION 

clarifying the scope of the definitive anti-dumping duties imposed by Regulation (EC) 
No 261/2008 on imports of certain compressors originating in the People's Republic of 
China 

 
 
  
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

•  Grounds for and objectives of the proposal 

This proposal concerns the application of Council Regulation (EC) No 1225/2009 of 
30  November  2009  on  protection  against  dumped  imports  from  countries  not 
members  of  the  European  Community  ('the  basic  Regulation')1  in  the  proceeding 
concerning  imports  of  certain  compressors  originating  in  the  People's  Republic  of 
China. 

•  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 

Definitive measures imposed by Council Regulation (EC) No 261/2008 of 17 March 
2008 on imports of certain compressors originating in the People's Republic of China 
expired on 21 March 2010. 

•  Consistency with other policies and objectives of the Union 

Not applicable. 

2. 

CONSULTATION  OF 
ASSESSMENT 

INTERESTED 

PARTIES  AND 

IMPACT 

•  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 contain provisions for a general impact assessment but 
contains an exhaustive list of conditions that have to be assessed. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

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OJ L 343, 22.12.2009, p. 51. 

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•  Summary of the proposed action 

On 30 March 2011 the Commission on its own initiative partially reopened the anti-
dumping investigation concerning imports of certain compressors originating in the 
People's Republic of China. 

The  reopening  was  limited  to  the  examination  of  whether  certain  product  types,  so 
called  mini-compressors,  should  fall  within  the  scope  of  the  said  anti-dumping 
measures. 

The  attached  proposal  for  a  Council  Regulation  is  based  on  the  definitive  findings 
which  revealed  that  mini-compressors  are  not  be  covered  by  the  scope  of  the  anti-
dumping  measures  imposed  by  Council  Regulation  (EC)  No  261/2008  and  that 
consequently the scope of Council Regulation (EC) No 261/2008 should be clarified 
with a retroactive effect. 

It is therefore proposed that the Council adopt the attached proposal for a Regulation 
which should be published no later than 16 December 2011. 

•  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. 

•  Subsidiarity principle 

The  proposal  falls  under  the  exclusive  competence  of  the  European  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 instruments: Regulation. 

Other means would not be adequate for the following reason: 

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

4. 

BUDGETARY IMPLICATION 

The proposal has no implication for the Union budget. 

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2011/0342 (NLE) 

Proposal for a 

COUNCIL REGULATION 

clarifying the scope of the definitive anti-dumping duties imposed by Regulation (EC) No 
261/2008 on imports of certain compressors 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 Community2 ('the basic Regulation') and 
in particular Article 9 and Article 14 paragraph 3 thereof, 

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

Whereas: 

1. 

(1) 

(2) 

2. 

(3) 

A. 

PROCEDURE 

Original investigation and anti-dumping duty 

On  21  December  2006,  the  Commission  announced,  by  a  notice  published  in  the  Official 
Journal  of  the  European  Union3,  the  initiation  of  an  anti-dumping  proceeding  with  regard  to 
imports  of  certain  compressors  originating  in  the  People's  Republic  of  China  ('the  original 
investigation'). 

The  Council,  by  Regulation  (EC)  No  261/20084  imposed  a  definitive  anti-dumping  duty  on 
imports  of  certain  compressors  originating  in  the  People's  Republic  of  China  ('measure 
concerned' and or 'definitive Regulation'). The measure concerned expired on 21 March 20105.  

Reopening of the original investigation 

The  original  investigation  was  reopened  on  the  Commission's  own  initiative  after  some 
importers of compressors originating in the People's Republic of China ('the PRC') have raised 
concerns  on  the  anti-dumping  duties  applicable  to  imports  of  so-called  mini-compressors,  i.e. 
compressors without a tank, capable of operating on a 12V power supply ('mini-compressors'). 

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OJ L 343, 22.12.2009, p. 51. 
OJ C 314, 21.12.2006, p. 2. 
OJ L 81, 20.3.2008, p. 1. 
OJ C 73, 23.3.2010, p. 39. 

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(4) 

(5) 

3. 

(6) 

(7) 

(8) 

(9) 

Although  mini-compressors  fall  within  the  literal  definition  of  the  product  concerned  as 
specified by Article 1 of the definitive Regulation, the information at the Commission's disposal 
indicated that mini-compressors appear to be distinct from the other compressors subject to the 
measure concerned ('other compressors subject to the measure concerned').  

Therefore,  it  was  considered  appropriate  to  partially  reopen  the  investigation  as  far  as  a 
clarification  of  the  scope  of  the  product  is  concerned,  with  the  conclusion  thereon  possibly 
having retroactive effect as of the date of the imposition of the measure concerned. 

Present investigation 

After consulting the Advisory Committee, the Commission announced by a notice published in 
the  Official  Journal  of  the  European  Union6  the  partial  reopening  of  the  anti-dumping 
investigation  concerning  imports  of  certain  compressors  originating  in  the  PRC  initiated 
pursuant to Article 5 of the basic Regulation. 

The Commission officially advised all the parties that co-operated in the original investigation 
as well as the authorities of the PRC of the initiation of the proceeding. Interested parties were 
given an opportunity to make their views known in writing and to 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. 

Submissions were received from fifteen interested parties, including eleven importers of mini-
compressors,  one  EU  producer  and  one  Chinese  exporter  of  mini-compressors,  one  EU 
producer of compressors (one of the complainants in the original investigation) and its related 
exporter of compressors from the PRC. 

(10)  Given that the present reopening of the investigation is limited to the clarification of the product 
scope  definitive  Regulation,  no  investigation  period  was  set  for  the  purpose  of  this  partial 
reopening. 

(11)  All  interested  parties  were  informed  of  the  essential  facts  and  considerations  on  the  basis  of 
which  the  present  conclusions  were  reached.  In  accordance  with  Article  20(5)  of  the  basic 
Regulation,  parties  were  granted  a  period  within  which  they  can  make  representations 
subsequent  to  the  disclosure.  The  oral  and  written  comments  submitted  by  the  parties  were 
considered and, where appropriate, the findings have been modified accordingly. 

B. 

PRODUCT UNDER INVESTIGATION 

(12)  The product under investigation is the same as defined in Article 1 of the definitive Regulation, 
i.e.  reciprocating  compressors  (excluding  reciprocating  compressor  pumps),  giving  a  flow  not 
exceeding 2 cubic metres (m3) per minute. 

(13)  The product is currently falling within CN codes ex 8414 40 10, ex 8414 80 22, ex 8414 80 28 

and ex 8414 80 51. 

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OJ C 98, 30.3.2011, p. 22. 

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(14)  The present reopening of the investigation was intended to determine whether so-called mini-
compressors, i.e. compressors without a tank and capable of operating on a 12V power supply, 
are covered by the scope as defined in Article 1 of the definitive Regulation. 

C. 

RESULTS OF THE INVESTIGATION 

1. 

Methodology 

(15) 

In order to assess whether mini-compressors should fall within the product definition of Article 
1  of  the  definitive  Regulation,  it  was  examined  whether  mini-compressors  and  other 
compressors  subject  to  the  measure  concerned  shared  the  same  basic  physical  and  technical 
characteristics  and  end-uses.  In  this  regard,  the  interchangeability  between  mini-compressors 
and  other  compressors  subject  to  the  measure  concerned  in  the  Union  was  also  assessed.  In 
addition,  it  was  examined  whether  the  original  investigation  actually  covered  and  analysed 
mini-compressors. 

2. 

Basic physical and technical characteristics 

(16)  The  present  reopened  investigation  established  that  mini-compressors  consist  of  an  electric 
motor that drives a pump which continuously pushes air out through the connected air hose with 
varying  air  pressure.  Mini-compressors  are  not  equipped  with  a  tank,  typically  do  not  have  a 
pressure regulator and are capable of operating on a 12V direct current power supply. They are 
relatively  small  and  their  weight would  normally  not  exceed  2-3  kg  as  they  need  to  be  easily 
portable. Mini-compressors have a maximum operating time (normally up to 20 minutes) and 
give an airflow normally not exceeding 50 l/min. 

(17)  On  the  other  hand,  the  definitive  Regulation,  further  to  the  definition  in  its  Article  1  and 
repeated in recital (12) above, contains detailed information about other compressors subject to 
the measure concerned. In particular, in recital (17), the definitive Regulation specified that "[a] 
compressor  is  typically  made  up  of  a  pump,  driven  by  an  electric  motor  either  directly  or 
through  a  belt  mechanism.  In  most  cases  the  pressurised  air  is  pumped  into  a  tank  and  exits 
through a pressure regulator and a rubber hose. Compressors, in particular the larger ones, can 
have  wheels  to  make  them  mobile".  The  tank  and  pressure  regulator  in  such  compressors 
provide  for  a  steady  airflow.  Normally,  such  compressors  are  relatively  big  and  their  weight 
would be of at least 25 kg and often more. They are designed to work with alternating current of 
120V and above, they have no limited working time and give airflow of up to 2000 l/m. 

(18)  Consequently,  it  is  concluded  that  mini-compressors  and  other  compressors  subject  to  the 

measure concerned do not share the same basic physical and technical characteristics.  

3. 

Basic end-uses and interchangeability 

(19)  The present reopened investigation established that mini-compressors are predominantly used in 
automotive sector and are designed to inflate tyres and are often sold as part of a tyre-repair-kit 
together with a sealant that can be pumped into a punctured tyre. Some mini-compressors are 
also  used  as  a  household  application  inflating  toys,  balls,  air  mattresses  or  other  inflatable 
objects.  

(20)  On  the  other  hand  the  definitive  Regulation  specified  in  recital  (19)  that  "[t]he  product 
concerned is used for driving air-powered tools or for spraying, cleaning, or inflating tyres and 

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other  objects".  Such  compressors  can  be  used  for  some  semi-professional  activities  or  in  the 
"do-it-yourself" segment for driving air-powered tools or for spraying or painting or cleaning. 
Those applications are possible due to a steady flow of air that can be regulated. Such a feature 
is not provided for in mini-compressors.  

(21)  The  information  gathered  showed  that  mini-compressors  are  normally  priced  at  a  level 
significantly lower than that for other compressors. Mini-compressors are intended for different 
customers  and  are  distributed  via  different  channels  than  other  compressors  subject  to  the 
measure concerned. Moreover, while mini-compressors are normally sold as part of a tyre repair 
kit  (replacing  a  spare  tyre)  either  together  with  a  car  or  in  specialist  automotive  shops  or  in 
supermarkets (for alternative uses like inflating toys), other compressors subject to the measure 
concerned are normally to be found only in specialist 'do-it-yourself' shops.  

(22)  Given  the  above,  it  is  concluded  that  mini-compressors  and  other  compressors  subject  to  the 
measure  concerned  have  different  end-uses,  target  different  markets  and  are  in  principle  not 
interchangeable. 

4. 

Product investigated in the original investigation 

(23)  None of the parties that co-operated in the original investigation (three producers in the Union, 
fourteen exporting producers in the PRC and one unrelated importer in the EU) was involved in 
manufacturing  and/or  trading  mini-compressors.  It  is  apparent  from  the  original  investigation 
that the relevant information was at that time not collected with regard to mini-compressors. 

(24)  Thus, it seems that although mini-compressors were not explicitly excluded, the investigation at 

that time did not intend to include mini-compressors. 

(25)  This is also confirmed by the statement of one of the complainants in the original investigation. 
Following  a  request  from  the  Commission,  it  clearly  stated  that  in  its  view  mini-compressors 
were not meant to be covered by the complaint and the resulting anti-dumping proceeding. 

(26)  Given the above, it is concluded that mini-compressors were not investigated in the framework 

of the original investigation. 

D. 

CONCLUSION ON THE PRODUCT SCOPE 

(27)  The above findings show that mini-compressors and other compressors subject to the measure 
concerned do not share the same basic physical and technical characteristics and end-uses. They 
have  different  end-uses,  target  different  markets  and  are  in  principle  not  interchangeable.  In 
addition, mini-compressors were not investigated in the framework of the original investigation. 
On  this  basis,  it  is  concluded  that  mini-compressors  and  other  compressors  are  two  different 
products. 

(28)  Almost all parties that came forward in the present reopened investigation requested that mini-

compressors should be excluded from the product scope of the original measure. 

(29)  On the other hand, the co-operating EU producer of mini-compressors argued that the original 
measure encompassed its products and that it rightfully protected its interests. Consequently, it 
claimed  that  anti-dumping  duty  should  be  collected  on  mini-compressors  retroactively  and  in 
the future as the injurious dumping of mini-compressors continues to take place. 

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(30) 

In this regard, it is noted that neither this producer nor any other producer of mini-compressors 
co-operated  in  the  original  investigation.  Further,  as  concluded  above  in  recital  (26)  mini-
compressors were not investigated at the time of the original investigation. It is also noted that 
as established by the present reopened investigation significant differences exist between mini-
compressors  and  compressors  investigated  in  the  original  investigation.  Consequently,  the 
position  of  the  said  EU  producer  of  mini-compressors  cannot  alter  the  findings  in  the  present 
reopened investigation. 

(31)  With regard to the claim about continued injurious dumping of mini-compressors and possible 
imposition  of  anti-dumping  measures,  it  should  be  noted  that,  as  explained  in  recitals  (23)  to 
(26)  above,  mini-compressors  were  not  investigated  in  the  original  investigation  and  that  a 
determination  whether  injurious  dumping  took  or  is  taking  place  cannot  be  addressed  by  the 
present reopened investigation, which is limited to the clarification of the product scope of the 
original measure. 

(32)  Following disclosure, the EU producer of mini-compressors repeated his position and suggested 
that the retroactive exclusion of mini-compressors from the measures would result in retroactive 
fortification of their competitors in the PRC and would distort the competition. 

(33) 

In this regard, it is reiterated that the reopened investigation did not analyse the market situation 
for  mini-compressors  and  did  not  envisage  doing  so.  It  simply  aimed  at  clarifying  if  mini-
compressors are different from the compressors investigated  in the original investigation. The 
outcome is also not supposed to distort any market situation but to provide clarity with regard to 
applicable duties. 

(34)  Following  disclosure  one  co-operating  importer  was  suggesting  that  mini-compressors  are  in 
fact  only  pumps  and  any  duty  on  compressors  is  per  definition  not  applicable  to  pumps  that 
were explicitly excluded from the product scope of the original measure. 

(35) 

In this respect, it should be noted that the present reopened investigation does not support such 
an  interpretation  and  that  mini-compressors  are  clearly  –  from  a  technical  point  of  view  – 
compressors as they move the air from one place to another (as pumps do) but also compress 
the air in the object that they are connected to. 

(36)  Given  the  above,  it  is  concluded  that  mini-compressors  (i.e.  compressors  without  a  tank  and 
capable of operating on a 12V power supply) are distinct from compressors investigated in the 
original investigation. 

(37)  Since  mini-compressors  did  not  fall  within  the  scope  of  the  original  investigation  the  anti-
dumping duty should not have been applied to imports of mini-compressors. Consequently, the 
scope  of  application  of  the  measure  concerned  should  be  clarified  retroactively  by  an 
amendment to the definitive Regulation. 

E. 

RETROACTIVE APPLICATION 

(38)  Since  the  present  reopening  of  the  investigation  is  limited  to  the  clarification  of  the  product 
scope  and  since  mini-compressors  were  not  covered  by  the  original  investigation  and  the 
consequent anti-dumping measure, it is considered appropriate that the findings be applied from 
the date of the entry into force of the definitive Regulation. 

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(39)  Consequently,  any  definitive  anti-dumping  duty  paid  or  entered  into  the  accounts  pursuant  to 
Regulation (EC) No 261/2008 on imports of mini-compressors originating in the PRC should be 
repaid  or  remitted.  The  repayment  or  remission  must  be  requested  from  national  customs 
authorities in accordance with applicable customs legislation. Moreover, in order to avoid that 
the importers concerned could not claim such repayment due to the deadlines in that legislation, 
in case those deadlines have expired before or on the date of publication of this Regulation, or if 
they  expire  within  six  months  after  that  date,  they  are  hereby  extended  so  as  to  expire  six 
months after the publication of this Regulation, 

HAS ADOPTED THIS REGULATION: 

Article 1 

Article 1(1) of Regulation (EC) No 261/2008 shall be replaced by the following: 

'1.  A  definitive  anti-dumping  duty  is  hereby  imposed  on  imports  of  reciprocating  compressors 
(excluding  reciprocating  compressor  pumps),  giving  a  flow  not  exceeding  2  cubic  metres  (m3)  per 
minute,  falling  within  CN  codes  ex  8414  40  10,  ex  8414  80  22,  ex  8414  80  28  and  ex  8414  80  51, 
(TARIC codes 8414 40 10 10, 8414 80 22 19, 8414 80 22 99, 8414 80 28 11, 8414 80 28 91, 8414 80 
51  19  and  8414  80  51  99)  and  originating  in  the  People’s  Republic  of  China.  Co-called  mini-
compressors,  i.e.  compressors  without  a  tank  and  capable  of  operating  on  a  12V  power  supply  and 
falling  within  the  above  mentioned  CN  codes  shall  not  be  covered  by  the  definitive  anti-dumping 
duty.'. 

Article 2 

For goods not covered by Article 1(1) of Regulation (EC) No 261/2008 as amended by this Regulation, 
the  definitive  anti-dumping  duty  paid  or  entered  into  the  accounts  pursuant  to  Article  1(1)  of 
Regulation (EC) No 261/2008 in its initial version shall be repaid or remitted. 

Repayment  and  remission  shall  be  requested  from  national  customs  authorities  in  accordance  with 
applicable customs legislation. In cases where the time limits provided for in Article 236(2) of Council 
Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code7 have 
expired before or on the date of publication of this Regulation, or if they expire within six months after 
that date, they are hereby extended so as to expire six months after the publication of this Regulation. 

This Regulation shall enter into force on the day following its publication in the Official Journal of the 
European Union and shall apply retroactively from 21 March 2008. 

Article 3 

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OJ L 302, 19.10.1992, p. 1. 

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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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