Source: EURLEX
Language: en
Format: md

*|*

# 52013PC0178

**Proposal for a COUNCIL IMPLEMENTING REGULATION amending Implementing Regulation (EU) No 1008/2011 imposing a definitive anti-dumping duty on imports of hand pallet trucks and their essential parts originating in the People's Republic of China following a partial interim review pursuant to Article 11(3) of Regulation (EC) No 1225/2009 /\* COM/2013/0178 final - 2013/0095 (NLE) \*/**

  

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'), in the partial interim review proceeding concerning the
anti-dumping duty in force in respect of imports of hand pallet trucks and
their essential parts 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

A definitive anti-dumping duty on imports of hand
pallet trucks and their essential parts falling within CN codes ex 8427 90 00
and ex 8431 20 00 originating in the People's Republic of China was imposed by
Council Implementing Regulation (EU) No 1008/2011 (OJ L 268, 13.10.2011, p. 1).

· Consistency with other policies and objectives of the Union

Not applicable.

2.           RESULTS OF CONSULTATIONS
WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS

· 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 provide for 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 14 February 2011, the Commission initiated ex-officio
a partial interim review of the anti-dumping duty in force in respect of
imports of hand pallet trucks and their essential parts originating in the
People's Republic of China.

The review investigation, which was limited in
scope to the examination of dumping, found because of changed circumstances of
a lasting nature continuing dumping at higher level.

Therefore, it is suggested that the Council
adopts the attached proposal for a Regulation in order to amend the existing
measures, which should be published in the Official Journal of the European
Union by 13 May 2013 at the latest.

· 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:

The basic Regulation does not provide for
alternative options.

4.           BUDGETARY IMPLICATION

The proposal has no implication for the Union
budget.

2013/0095 (NLE)

Proposal for a

COUNCIL IMPLEMENTING REGULATION

amending Implementing Regulation (EU) No
1008/2011 imposing a definitive anti-dumping duty on imports of hand pallet
trucks and their essential parts originating in the People's Republic of China
following a partial interim review pursuant to Article 11(3) of Regulation (EC)
No 1225/2009

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 Community[1]
(‘the basic Regulation’), and in particular Articles 9(4) and 11(3), (5) and
(6) thereof,

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

Whereas:

A.
PROCEDURE

1.
Previous investigations and existing
anti-dumping measures

(1)
In July 2005, by Regulation (EC) No 1174/2005[2], the Council imposed a
definitive anti-dumping duty on imports of hand pallet trucks and their
essential parts originating in the People's Republic of China ('the PRC'). The
measures consisted of an ad valorem anti-dumping duty ranging between
7,6% and 46,7%.

(2)
In July 2008, by Regulation (EC) No 684/2008[3], the Council, following a
product scope interim review, clarified the product scope of the original
investigation.

(3)
In June 2009, by Regulation (EC) No 499/2009[4], the Council, following an
anti-circumvention investigation, extended the definitive anti-dumping duty
applicable to 'all other companies' imposed by Regulation (EC) No 1174/2005 to
hand pallet trucks and their essential parts consigned from Thailand whether
declared as originating in Thailand or not.

(4)
In October 2011, by Implementing Regulation (EU)
No 1008/2011[5],
the Council imposed a definitive anti-dumping duty on imports of hand pallet
trucks and their essential parts originating in the PRC following an expiry
review pursuant to Article 11(2) of the basic Regulation. The extended duty as
mentioned in recital (3) above was also maintained by Implementing Regulation
(EU) No 1008/2011.

2.
Initiation of a partial interim review

(5)
During the expiry review the Commission noticed
a change in the competition landscape on the Union market as of the imposition
of the measures. Indeed, the Chinese exporting producer with the lowest duty
rate – who was granted market economy treatment ('MET') in the original
investigation – was able to virtually take over a very big part of the Union
market and increased significantly its share of imports in the EU. The
Commission also had doubts with regard to the original MET determination in
view of prima facie evidence of distortions on the steel market in the PRC. In
this context, the circumstances on the basis of which the existing measures
were established were considered to have changed and these changes seemed to be
of a lasting nature.

(6)
Having determined, after consulting the Advisory
Committee, that sufficient evidence existed to justify the initiation of a
partial interim review, the Commission announced by a notice published on 14
February 2012 in the Official Journal of the European Union[6] ('the Notice of
initiation') the ex officio initiation of a partial interim review in
accordance with Article 11(3) of the basic Regulation limited in scope to the
examination of dumping in respect of Chinese exporting producers.

3.
Review investigation period

(7)
The investigation of the level of dumping
covered the period from 1 January 2011 to 31 December 2011 ('the review
investigation period' or 'the RIP').

4.
Parties concerned

(8)
The Commission officially advised exporting
producers, unrelated importers known to be concerned, the authorities of the
exporting country and the Union industry of the initiation of the partial
interim review. Interested parties were given the opportunity to make their
views known in writing and to request a hearing within the time limit set out
in the Notice of initiation.

(9)
All interested parties, who so requested and
showed that there were particular reasons why they should be heard, were
granted a hearing.

(10)
In view of the potentially large number of
exporting producers and unrelated importers, it was considered appropriate, in
accordance with Article 17 of the basic Regulation, to examine whether sampling
should be used. In order to enable the Commission to decide whether sampling would
be necessary and, if so, to select a sample, the above parties were requested,
pursuant to Article 17 of the basic Regulation, to make themselves known within
15 days of the initiation of the review and to provide the Commission with
information requested in the Notice of initiation. Two exporting producers and
eight unrelated importers came forward to cooperate. Sampling was therefore not
necessary for both exporting producers and unrelated importers.

(11)
The Commission sent questionnaires and MET claim
forms to all parties known to be concerned and to those who make themselves
known within the deadlines set in the Notice of initiation. Replies were
received from one Chinese exporting producer, Zhejiang Noblelift Equipment
Joint Stock Co. Ltd ('Noblelift'), and from three unrelated importers.

(12)
The Commission sought and verified all
information it deemed necessary for the determination of dumping. A
verification visit was carried out at the premises of:

–
Zhejiang Noblelift Equipment Joint Stock Co.
Ltd, Changxing, the PRC.

(13)
In light of the need to establish a normal value
for the exporting producer in the PRC to which MET was not granted, a
verification at the premises of the following producer in Brazil, which was
used as an analogue country, took place:

–
Paletrans Equipamentos Ltda, Cravinhos, Sao Paulo.

B. PRODUCT
CONCERNED AND LIKE PRODUCT

1.
Product concerned

(14)
The product concerned by this review is the same
as the one in the original investigation and clarified by the product scope
interim review, namely hand pallet trucks and their essential parts, i.e.
chassis and hydraulics, originating in the PRC, currently falling within CN
codes ex 8427 90 00 and ex 8431 20 00. For the purpose
of this Regulation, hand pallet trucks shall be trucks with wheels supporting
lifting fork arms for handling pallets, designed to be manually pushed, pulled
and steered, on smooth, level, hard surfaces, by a pedestrian operator using an
articulated tiller. The hand pallet trucks are only designed to raise a load,
by pumping the tiller, to a height sufficient for transporting and do not have
any other additional functions or uses such as for example (i) to move and to
lift the loads in order to place them higher or assist in storage of loads
(highlifters), (ii) to stack one pallet above the other (stackers), (iii) to
lift the load to a working level (scissorlifts) or (iv) to lift and to weigh
the loads (weighing trucks).

2.
Like product

(15)
The investigation confirmed that, the product concerned and the product manufactured and sold on the
domestic market in the PRC, the product manufactured and sold in the analogue
country, Brazil, and the product manufactured and sold in the Union by the
Union producers have the same basic physical and technical characteristics as
well as the same uses.

(16)
These products are therefore considered to be
alike within the meaning of Article 1(4) of the basic Regulation.

C.
DUMPING

(a) Market economy treatment (‘MET’)

(17)
Pursuant to Article 2(7)(b) of the basic
Regulation, in anti-dumping investigations concerning imports originating in
the PRC normal value shall be determined in accordance with paragraphs 1 to 6
of the said Article for those producers which were found to meet the criteria
laid down in Article 2(7)(c) of the basic Regulation, i.e. where it is shown
that market economy conditions prevail in respect of the manufacture and sale
of the like product. For ease of reference only, these criteria are set out in
a summarised form as follows:

–
Business decisions and costs are made in
response to market signals and without significant State interference; and
costs of major inputs substantially reflect market values;

–
Firms have one clear set of basic accounting
records which are independently audited in line with international accounting
standards and are applied for all purposes;

–
There are no significant distortions carried over
from the former non-market economy system;

–
Bankruptcy and property laws guarantee legal
certainty and stability;

–
Exchange rate conversions are carried out at
market rates.

(18)
One Chinese producer, Noblelift, requested MET
pursuant to Article 2(7)(b) of the basic Regulation and replied to the MET
claim form within the given deadlines.

(19)
The Commission sought all information deemed
necessary and verified all information submitted in the MET application at the
premises of the company in question.

(20)
The investigation established that the prices
paid by Noblelift in the RIP for Chinese hot-rolled carbon steel, a main raw
material accounting for about 25% of the cost of a finished product, were
significantly distorted as they stood approximately between 24% and 31% below
international prices over the same period. The international prices were based on
statistics for the EU and North American markets from the Steel Business
Briefing[7] as well as from COMEXT import
prices. On this basis it was found that Chinese steel prices clearly did not
reflect market values. Moreover, there is an established practice of State
interference in the market of raw materials. The China 12th
five-year plan (2011-2015) for the Iron and Steel sector contains a series of
measures which demonstrate that steel companies have no possibility other than
to act in line with the Chinese Government instructions due to the firm control
the Chinese State has. It is thus concluded that Noblelift does not fulfil the
requirements of the first criterion of MET.

(21)
Furthermore, in the financial year 2010, a
related company has given Noblelift a bank guarantee for two loans representing
a significant proportion of that related company's and Noblelift's total
assets. The guarantees were disclosed neither in Noblelift's financial
statements nor in the related company's accounts. This is not in line with IAS
24 (Related Party Disclosures) and the auditor had no reservation on this
practice. The disclosure of related party transactions in the financial
statements is important because it draws attention to possible effects on the
financial position of a company. In this case, the non-disclosure of
significant commitments such as the guarantees in question does not allow a
proper assessment of the company’s operations and in particular the risks and
opportunities the company is facing. Therefore, it is considered that the
company's accounting records have not been properly audited in line with
international accounting standards and, thus, it does not fulfil the
requirements of the second criterion.

(22)
Finally, Noblelift received State benefits in
the form of preferential income tax as well as grants which distort its
financial situation and, thus, it does not fulfil the requirements of the third
criterion.

(23)
The exporting producer concerned and the Union
industry were given an opportunity to comment on the above findings.

(24)
Following the disclosure of the MET findings, Noblelift
requested more details with regards to the calculation of international market
price for steel. The company argued that distortions in raw material prices
should be dealt with by adjusting the normal value in the dumping calculation
rather than denying MET. However, the prescription of Article 2(7)(c) of the
basic Regulation is very clear and requires that ‘costs of major inputs
substantially reflect market values’. Hence, any adjustment in the dumping
calculations in order to address the distorted input costs would render Article
2(7)(c) largely meaningless. The comments could therefore not alter the above
findings.

(25)
Following the disclosure of the final findings,
Noblelift reiterated its arguments. It stated firstly that the Commission
failed to disclose the details, i.e. all the data used for the calculation of
differences in raw material prices.

(26)
In this respect, it is noted first and foremost
that the sources of data for the comparisons of steel prices have been
indicated by the Commission on several occasions. The Commission repeated the
explanations provided earlier in the proceeding that, the prices based on the
Steel Business Briefing were copyright protected as the service is available on
subscription. Consequently, the Commission is legally prevented from publicly
disclosing these data directly but the database is otherwise available and can
be accessed with payment of the appropriate fee. Nevertheless, in order to
ensure a balance between the protection of intellectual property rights and the
protection of the rights of defence, the data used was verified by the Hearing
Officer of the Directorate-General for External Trade, who confirmed the calculation
of the price difference and communicated the result of his verification to
Noblelift.

(27)
It is further noted that the Steel Business
Briefing describes exactly the methodology used (dimensions, thickness, width,
point in transport). Those parameters are general and are a guide which is also
indicative of the level of detail in price comparisons of raw materials which
aim at establishing whether costs of major inputs substantially reflect market
values. The Commission has used European and North American prices as
reference.

(28)
Noblelift further claimed that in the original
investigation, differences between domestic steel prices in the PRC and
international steel prices were not considered as a factor preventing the
company from meeting the first MET criterion. As stated in recital (22) to the
Commission Regulation imposing a provisional anti-dumping duty in the framework
of the original investigation, "For all four companies, it was
established (…) that costs and prices reflected market values".[8] Indeed, the original
investigation did not establish a substantial price difference between raw
materials procured locally in the PRC and those purchased at international
prices. However, this conclusion cannot prevent the institutions from finding a
price difference in a later investigation should the circumstances be different
and there is a price difference. As indicated in recital (76) below the
circumstances have significantly changed since 2004 (time of the original
investigation) and 2011 (the IP of the review at hand), i.e. in a period of seven
years. In this regard, and in particular during the expiry review investigation
in 2010, prima facie evidence of price distortions in the steel market
in the PRC, due to State interference, were collected. This constituted also
one of the reasons which led to the ex-officio initiation of the current
review and indeed was confirmed in the current investigation (see recital (20)
above).

(29)
Next, Noblelift reiterated its comments
concerning non-material impact of loan guarantees or negligible impact of state
benefits. In this respect, it is noted that the prescription of Article 2(7)(c)
of the basic Regulation is clear and does not refer to material impact on
financial results (“firms have one set of basic accounting records which are
independently audited in line with international accounting standards and are
applied for all purposes”). In any case, as stated above in recital (21), the
non-disclosure of significant commitments such as the loan guarantees in
question does not allow a proper assessment of the company’s operations and in particular
the risks and opportunities the company is facing. As far as state benefits are
concerned, the Commission has already replied to the party in the course of the
investigation that those benefits represented amounts exceeding 10 million RMB.
The claims could not be thus accepted.

(30)
Finally, Noblelift argued that the investigation
should have been terminated due to violation of the 3-month deadline for the
MET determination as specified in Article 2 (7)(c) the basic Regulation. In
this respect, reference is made to amendment introduced by the Regulation (EU)
No 1168/2012 of the European Parliament and of the Council of 12 December 2012
amending Council Regulation (EC) No 1225/2009 on protection against dumped
imports from countries not members of the European Community and retroactive
effects thereof.[9]
Further, it is noted that the MET determination was made more than 3 months
after the beginning of the investigation due to the procedural aspects and time
constraints of the investigation. Indeed, the increased complexity of issues
raised in the context of MET assessments has shown that the 3-month deadline
was virtually impossible to adhere to. It is noted however that the timing of
the determination did not have an impact on the outcome.

(31)
Consequently, it is concluded that the comments
suggesting that MET should be granted are not justified.

(32)
In view of the above and pursuant to Article
2(7)(c) of the basic Regulation, it is determined not to grant MET to
Noblelift.

(b) Normal value

          Analogue country

(33)
According to Article 2(7)(a) of the basic
Regulation, for non-market economy countries and, to the extent that MET could
not be granted, for countries in transition, normal value has to be established
on the basis of the price or constructed value in an analogue country.

(34)
In the original investigation, Canada served as
an analogue country for the purposes of establishing a normal value. Given that
production in Canada had ceased, Brazil was envisaged as an analogue country in
the Notice of initiation of the present review.

(35)
Two exporting producers and an importer objected
to the proposal to use Brazil as an analogue country. The arguments against the
choice of Brazil were that there was a low degree of competition on the
Brazilian market for hand pallet trucks due to the very small number of
domestic producers and, thus, sales prices, profits as well as production costs
in Brazil are inflated. The exporting producers in question suggested India,
Malaysia or Taiwan as appropriate analogue countries.

(36)
Following these comments, the Commission
contacted 38 Indian, three Taiwanese, two Malaysian and two Brazilian known
producers of hand pallet trucks by sending them the relevant questionnaire.
Cooperation could be obtained from only one producer in Brazil: Paletrans Equipamentos
Ltda, Cravinhos, Sao Paulo ('Paletrans').

(37)
Following the disclosure of the final findings
and the Commission’s proposal, parties reitrated their comments that Brazil was not an appropriate choice of analogue country due to the
lack of competition on the Brazilian market. Parties alleged that the
cooperating analogue country producer enjoyed a monopolistic position on the
Brazilian market reinforced by high import duties. Other comments related to
deficiencies in the non-confidential questionnaire reply of the analogue
country producer. Finally, it was claimed that adjustments should be made to
account for differences between analogue country producer and the exporting
producer in the country concerned.

(38)
As concerns the suitability of Brazil as an analogue
country, it has to be pointed out that while the analogue country producer is
the main producer on the Brazilian market, it does not monopolise that market. There
is competition with at least two local producers and a significant level of
imports, and the profit margin of the analogue country producer has been found
to be consistent with an open market.

(39)
As stated in recital (36) above following
comments at the early stage of the proceeding against the use of Brazil as an
analogue country, the Commission contacted 45 producers in four different
countries, including the companies suggested by Noblelift. Despite repeated
contacts by telephone and e-mail with these companies, only one producer from
Brazil submitted the requested information and cooperated with the
investigation.

(40)
With regard to the alleged deficiencies it has
to be noted that only one producer in the analogue
country cooperated with the investigation. Such situation is not uncommon but
poses difficulties with regard to disclosure of data. Given frequent
difficulties in obtaining cooperation from analogue country producers, the
Commission has to guarantee spot-on protection of confidential information. In
the current case presentation of non-confidential data created some
misunderstandings concerning alleged deficiencies but they were clarified with
parties. In particular, one party claimed that deficiencies in the reply of the
analogue country producer should disqualify Brazil as an analogue country and
the investigation should be terminated since the Commission cannot establish
the normal value. In this respect it is noted that in the current investigation
the Commission did have all the necessary information to perform a dumping
calculation.

(41)
Consequently, the claims concerning the
suitability of Brazil as an analogue country could not be accepted.

(42)
With regard to the claims for adjustments, it is
noted that the level of trade differences between the Brazilian producer and
the Chinese exporting producer has been accounted for by means of a level of
trade adjustment (see recital (59) below).

(43)
Finally, one party claimed that an adjustment
should be made to account for an allegedly distorting effect of the 14% import
duty in the analogue country. This claim cannot be accepted as no link can be
established between an import duty as such and the price level on the domestic
market.

(44)
Consequently, Brazil is considered an
appropriate analogue country since there is sufficient competition with at
least two producers and a significant level of imports.

Determination of normal value

(45)
In accordance with Article 2(2) of the basic
Regulation, the Commission first examined whether Paletrans's domestic sales of
the like product to independent customers were representative. In this respect,
it was found that the total volume of such sales was equal to at least 5% of
the total volume of Noblelift's export sales to the Union.

(46)
The Commission subsequently examined whether
there are types of the like product sold domestically by Paletrans that were
sufficiently comparable in terms of functions and materials used to the types
sold by Noblelift for export to the Union. The investigation established that a number of types sold domestically
by Paletrans were sufficiently comparable with the types exported by Noblelift
to the Union.

(47)
The Commission subsequently examined for the
analogue country producer whether each comparable type of the like product sold
domestically could be considered as being sold in the ordinary course of trade.
This was done by establishing for each product type the proportion of
profitable sales to independent customers on the domestic market during the
RIP.

(48)
Where the sales volume of a product type, sold
at a net sales price equal to or above the calculated cost of production,
represented more than 80% of the total sales volume of that type, and where the
weighted average sales price of that type was equal to or higher than the cost
of production, normal value was based on the actual domestic price. This was
the case for all comparable types and the normal value was calculated as a
weighted average of the prices of all domestic sales of each comparable type
made during the RIP.

(49)
For non-comparable types the normal value could
be constructed in accordance with Article 2(3) of the basic Regulation by
adding to the manufacturing cost, adjusted where necessary, a reasonable
percentage for domestic selling, general and administrative expenses and a
reasonable margin for domestic profit. The selling, general and administrative expenses and the profit were based on actual data pertaining to
production and sales, in the ordinary course of trade, for the like product, by
the producer in the analogue country. It should be noted that the price
constructed on that basis was subject to the adjustments described in recital (59), in particular to take account of the
difference in level of trade between export sales by Noblelift and the domestic
sales of the analogue country producer.

(50)
The sole cooperating exporting producer claimed
that the Commission performed dumping calculations on the basis of “truncated
PCNs” and that no explanations were provided concerning the parameters used for
conducting the comparison.

(51)
According to Article 2(11) of the basic
Regulation the dumping margin is normally established on the basis of a
comparison of a weighted average normal value with a weighted average of prices
of all export transactions subject to the relevant provisions governing fair
comparison.

(52)
With regard to the fair comparison, it has to be
noted that the product control number is a tool used in the investigation in
order to structure and organise the substantial amounts of very detailed data
submitted by the companies. It is an aid to conduct a more detailed analysis of
different product characteristics within the category of the product concerned
and the like product.

(53)
The Commission has collected information in
relation to a number of parameters (chassis material, chassis painted, lift
capacity, type of hydraulic system, working length, fork, width over forks,
steering wheel material, load wheel material, load wheel type, brake type) but
in order to take into consideration all export transactions it was considered reasonable
and it was found possible to base the comparison in this case on certain of
those parameters that constitute the most pertinent characteristics (chassis
material, chassis painted, steering wheel material, load wheel material, load
wheel type).

(54)
Therefore, the comparison was based on the most
pertinent characteristics in order to increase the matching and to ensure a
fair comparison. It has to be stressed that the Commission did not disregard
any information. However, it is not uncommon that certain parameters used in
the product control number have a lesser weight and that specific parameters
more than others form a better basis for fair comparison. No products have been
disregarded from the comparison on the basis of physical differences or for any
other reasons, nor have any new product types been created. On the contrary,
all sales were included in the comparison. While it was acknowledged that other
parameters had some impact on prices, it was found more appropriate, that the
calculations should be based on the five most relevant parameters as this led
to the highest level of matching.

(55)
As far as the procedural angle of the issue of
comparison is concerned, it has to be noted that the exporting producer was
provided with full opportunity to comment on the calculations performed in this
case. Full details of the calculations have been disclosed and re-disclosed.

(56)
Consequently, the foregoing claims had to be
rejected.

(c) Export price

(57)
All export sales to the Union of the Chinese
exporting producer were made directly to independent customers in the Union.
Therefore, the export price was established on the basis of the prices actually
paid or payable for the product concerned in accordance with Article 2(8) of
the basic Regulation.

(58)
One party claimed that the export sales of chassis and hydraulics should have been included in
the calculation. This claim has been accepted.

(d) Comparison

(59)
The comparison between the weighted average
normal value and the weighted average export price was made on an ex-works
basis and at the same level of trade. In order to ensure a fair comparison
between normal value and the export price, account was taken, in accordance
with Article 2(10) of the basic Regulation, of differences in factors which
affected prices and price comparability. For this purpose, due allowance in the
form of adjustments was made, where applicable and justified, for differences
in level of trade (estimated price difference for sales to different type of
customers in the domestic market of the analogue country), transport (comprising
inland freight cost in the exporting country and ocean freight for
transportation to the Union), insurance (ocean insurance cost), handling,
loading and ancillary costs, commissions (paid for export sales), bank charges (paid
for export sales), credit costs (based on the agreed payment terms and the
prevaling interest rate) and packing costs (cost of packing materials used).

(60)
Following a claim from the sole cooperating
exporting producer, an adjustment for the differences
in thickness of steel used by the producer in the analogue country and the exporting
producer in the country concerned was made to the normal value as it was found
reasonable. The adjustment was based on the difference in thickness in
proportion to the contribution of steel to the price of the like product sold
in Brazil by the analogue country producer. This led to a change in the dumping
margin (see recital (73) below). Following an
additional disclosure (inviting comments on the steel thickness adjustment),
one party contested that adjustment as lacking factual basis. It also pointed out
that the exporting producer’s non-confidential submissions seeking the
adjustment were deficient thereby violating other parties’ rights of defence.
The Commission verified the data on file on which the steel thickness
adjustment was based and confirmed that it was warranted.

(61)
The sole cooperating exporter presented claims
for several other adjustments due to differences in efficiency and productivity,
claiming inter alia that the producer in the analogue country was less
productive (has a lower output per worker) and had higher consumption of raw
materials per unit.

(62)
It has to be noted at the outset that while
differences in efficiency or productivity might exist between companies, the
guiding principle is to ensure comparability between export prices and normal
value, which does not require that the circumstances of an analogue country
producer and an exporting producer in a non-market economy country are
completely aligned. Indeed, only differences for factors affecting prices and
price comparability between an analogue country producer and an exporting
producer in a non-market economy country warrant an adjustment.

(63)
Nevertheless, it is to be pointed that the
investigation did not reveal any circumstances which would suggest that the
producer in the analogue country did not have a reasonably efficient production
process.

(64)
As far as cost factors are concerned (e.g.
productivity), those should not be picked and assessed individually. Rather, a
comprehensive analysis would be needed to assess whether advantages in relation
to one cost factor (e.g. productivity) are possibly compensated by
disadvantages in others. Indeed, a lower use of labour is often the result of a
higher level of automation, which in turn leads to higher costs in other areas
(depreciation, capital, financing, manufacturing overheads). Only a
comprehensive analysis could reveal all differences in cost factors and
demonstrate whether prices and price comparability are affected, thereby
justifying an adjustment. The claims cannot therefore be accepted.

(65)
In addition to the foregoing, the claims for
adjustment for a per unit energy difference and for a per unit depreciation and
manufacturing overheads difference were unsubstantiated. In particular, in
relation to energy efficiency it was not explained what elements in the
production process make the Brazilian producer inefficient as compared to the
sole cooperating exporting producer. The amount of the adjustment was based on
a ratio of labour cost difference per unit (based on productivity difference)
related to the share of labour cost in total cost. The link between such ratio
and energy efficiency and depreciation and manufacturing overheads difference
had not been explained and was not understandable. The claims are thus
rejected.

(66)
One party also claimed that adjustments should
be made for parameters inter alia such as lift capacity and fork. In this
respect, reference is made to comments concerning the parameters of comparison (see
recital (50) above) where it is noted that a comparison is based on the most
relevant parameters to ensure the highest level of matching. In any case the
claims were not substantiated.

(67)
Another claim was that adjustment should be made
due to the fact that the exporting producer uses patented technology. This
claim has not been further substantiated. Notably, the exporting producer
failed to quantify the adjustment. The only piece of information provided was a
document which was stated to be the patent. In a later submission the
adjustment was partially quantified but without any supporting evidence. Therefore,
the claim could not be accepted.

(68)
Furthermore, the claim for adjustment for
difference in efficiency in use of raw materials has been covered by the
adjustment for thickness of steel (see recital (60) above), as the use of
different steel thickness might lead to a lower overall consumption of steel.

(69)
Finally, the exporting producer stated that it
sold via a different sales channel, in particular non-branded products on an
OEM (Original Equipment Manufacturer) basis, than the producer in the analogue
country. Accordingly, a claim for an adjustment reflecting this difference was
put forward. As specified above (recital (59) a level of trade adjustment was
made. It was based on an estimated price difference for sales to different
types of customers, including OEM sales, in the domestic market of the analogue
country. For confidentiality reasons the extent of this adjustment could not be
disclosed as it would reveal the normal value based on data of the sole
analogue country producer. It was therefore concluded that the differences for
which the adjustment was claimed have been already accounted for.

(70)
Nevertheless, it has to be pointed out that the
exporting producer failed to quantify the adjustment claimed. It stated merely
that a 40% adjustment had been granted in another proceeding. An adjustment
granted in another proceeding (hence specific to the particular circumstances
of another proceeding) cannot serve as such as a benchmark for quantifying an
adjustment in the current case.

(71)
Following the additional disclosure (inviting
comments on the steel thickness adjustment), the exporting producer presented
additional claims for adjustments (unrelated to the steel thickness
adjustment): adjustment for coating, handle, and steel prices in Brazil.

(72)
It is noted first and foremost that the claims
were submitted after the deadline for comments and were thus formally
inadmissible. In any case the claims were either not quantified or not
substantiated. The company neither provided evidence for its claims nor did it
explain how the extent of different adjustments had been or should be
calculated.

(e) Dumping margin

(73)
As provided for under Article 2(11) of the basic
Regulation, the weighted average normal value by type was compared with the
weighted average export price of the product concerned. The dumping margin,
expressed as a percentage of the CIF Union frontier price, duty unpaid, is 70,8%.

(74)
As regards the dumping margins for all other
than Noblelift exporting producers in the original investigation, they ranged from 28,5% to 46,7%. Given that in the current review only Noblelift
cooperated and that the cooperation could be considered high since the vast
majority of Chinese exports were those of Noblelift, the Commission revised the
country-wide dumping margin for all other exporters as well. Consequently, the
residual dumping margin should be set at the same level as that of Noblelift,
i.e. 70,8%.

(75)
One party claimed that the country-wide duty
should not be set at the level of the sole cooperating exporting producer’s
dumping margin as there is no evidence that the vast majority of imports were
those of that sole cooperating exporter. In this respect, it has been confirmed
that according to statistical data the vast majority of imports from the PRC
were those of the sole cooperating exporting producer. The claim has been
therefore rejected.

D.
LASTING NATURE OF CHANGED CIRCUMSTANCES

(76)
In accordance with Article 11(3) of the basic
Regulation, it was also examined whether the changed circumstances could reasonably
be considered to be of a lasting nature.

(77)
In this regard the original
investigation did not establish a substantial price difference between prices
of raw materials procured locally in the PRC by the Chinese exporting producers
(including Noblelift) and those at international markets. The circumstances
have significantly changed between 2004 (time of the original investigation)
and 2011 (the RIP) where the price of hot-rolled steel, the main raw material,
stood between 24% and 31% below international prices. They did not reflect
market values as a result of price distortions in the steel market in the PRC
(see recital (20) above). Indeed, the Chinese steel market changed
significantly within these seven years and the PRC has shifted in the meantime
from a net steel importing country to a sizeable steel producer and exporter
worldwide, which fact could reasonably be considered to be of a lasting nature.

(78)
In addition, Chinese high-tech enterprises
including Noblelift are receiving State benefits in the form of preferential
income tax (15%) since 2008. In the investigation period of the original
investigation, the companies were subject to the standard rate of 25%. This
changed circumstance could also reasonably be considered to be of a lasting
nature.

(79)
It was therefore considered that the
circumstances that led to the initiation of this interim review are unlikely to
change in the foreseeable future in a manner that would affect the findings of
the interim review. Therefore it was concluded that the changed circumstances
are of a lasting nature and that the application of the measure at its current
level is no longer justified.

E.
ANTI-DUMPING MEASURES

(80)
In light of the results of this review
investigation and since the new dumping margin of 70,8% is lower than the
injury elimination level established in the original investigation (see
recitals (120) to (123) of Regulation (EC) No 128/2005[10]), it is considered appropriate
to amend the anti-dumping duty applicable to imports of the product concerned
both from Zhejiang Noblelift Equipment Joint Stock Co. Ltd and from all other
exporting producers to 70,8%.

(81)
One party claimed that the newly established
dumping margin should not have been compared with the injury elimination level
established in the original investigation. Rather, an injury elimination level should
be established in every investigation, even in a partial review limited to
dumping. According to this party, the current practice whereby injury is not
assessed, constitutes a breach of the lesser duty rule. The party also claimed
that a full interim review should have been opened.

(82)
In this respect it is noted that since the
Commission initiated a partial interim review limited to dumping, injury could
not be re-assessed in this framework. According to Article 11(3) of the basic
Regulation the continued imposition of measures may be reviewed, where
warranted, on the initiative of the Commission. Hence, there is no obligation
for the Commission to initiate an ex-officio interim review covering
both dumping and injury, and in any event it should be warranted. In this case,
the information and evidence at the Commission’s disposal was sufficient for
the initiation of an interim review limited to dumping. Moreover, if injury is
always to be assessed in interim reviews the possibility of having a partial
interim review limited to dumping as provided for in Article 11(3) of the basic
Regulation would be devoid of meaning. The claim has to be therefore rejected. Nevertheless
it is recalled that the interested party in question has the possibility to
request a partial review of injury pursuant to Article 11 (3) of the basic
Regulation.

(83)
The lesser duty rule has been fully respected and
the newly established dumping margin was indeed compared with the injury
elimination level established in the original investigation (the latest injury
finding).

(84)
One party claimed that a minimum import price
would be better suited in the current case. Alternatively, a fixed duty should
be imposed.

(85)
In this respect it is noted that neither the minimum import price nor the fixed duty are suitable for
products which exists in a multitude of individual types with varying prices,
which are also subject to continuous changes and upgrades. A multitude of duty
levels would be very difficult to administer. An additional limitation of the
current case is that the minimum import price would have to be based on the
normal value (since the duty is based on dumping), which is based on
confidential data of one company in an analogue country market. The claims are
thus rejected.

(86)
The exporting producer expressed interest in an
undertaking within the statutory deadlines. However, no formal offer was
submitted and thus the Commission was not in a position to consider it further.

(87)
Interested parties were informed of the
essential facts and considerations on the basis of which it was intended to
amend the duty rates applicable to exporting producers and were given the
opportunity to comment.

(88)
The oral and written comments submitted by the
parties were considered.

(89)
It is noted that pursuant to Article 1(3) of
Council Implementing Regulation (EU) No 1008/2011, the 70,8% anti-dumping duty
imposed to "all other companies" by this Regulation applies to hand
pallet trucks and their essential parts, as defined in Article 1(1) of Council
Implementing Regulation (EU) No 1008/2011, consigned from Thailand whether
declared as originating in Thailand or not,

HAS ADOPTED THIS REGULATION:

Article 1

Article 1(2) of Council Implementing Regulation
(EU) No 1008/2011, shall be replaced by the following:

"2.        The rate of the definitive
anti-dumping duty applicable to the net free-at-Union-frontier price, before
duty, for the products described in paragraph 1 and produced by the companies listed
bellow shall be as follows:

Company || Rate of duty (%) || TARIC additional code

Zhejiang Noblelift Equipment Joint Stock Co. Ltd, 58, Jing Yi Road, Economy Development Zone, Changxin, Zhejiang Province, 313100, PRC || 70,8 || A603

All other companies || 70,8 || A999

"

Article 2

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

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

Done at Brussels,

                                                                       For
the Council

                                                                       The
President

[1]               OJ L 343, 22.12.2009, p. 51.

[2]               OJ L 189, 21.7.2005, p. 1.

[3]               OJ L 192, 19.7.2008, p. 1.

[4]               OJ L 151, 16.6.2009, p. 1.

[5]               OJ L 268, 13.10.2011, p. 1.

[6]               OJ C 41, 14.2.2012, p. 14.

[7]               www.steelbb.com/steelprices/

[8]               Commission
Regulation (EC) 128/2005 of 27 January 2005 (OJ L 25, 28.1.2005, p. 16).

[9]               OJ L 344,
14.12.2012, p. 1.

[10]             OJ L 25, 28.1.2005, p. 16.

[Top](#document1)