CELEX: 51998PC0262
Language: en
Date: 1998-04-24
Title: Amended proposal for a Council Regulation (EC) imposing definitive anti-dumping duties on imports into the Community of personal fax machines originating in the People's Republic of China, Japan, the Republic of Korea, Malaysia, Singapore, Taiwan and Thailand

COMMISSION OF THE EUROPEAN COMMUNITIES
                                                Brussels, 24.04.1998
                                                COM(1998) 262 final
                             Amended proposal for a
                         COUNCIL REGULATION (EC)
imposing definitive anti-dumping duties on imports into the Community of personal
 fax machines originating in the People's Republic of China, Japan, the Republic of
                 Korea, Malaysia, Singapore, Taiwan and Thailand
           (presented by the Commission pursuant to Article 189 a (2)
                                of the EC-Treaty)
 ---pagebreak---  ---pagebreak---                          EXPLANATORY MEMORANDUM
Subject:      Anti-dumping proceeding concerning imports of personal fax
              machines originating in the People's Republic of China, Japan,
              Republic of Korea, Malaysia, Singapore, Taiwan and Thailand
1)   Reference is made to the Commission's proposal in Document COM (1998) 193 in
     which the main aspects of this case are described.
2)   Following discussions in the Council, the Commission now proposes to change
     Article 2 of its abovementioned proposal and to adopt a Declaration concerning an
     interim review.
3)   It is hereby proposed that the Council adopts the above-mentioned Regulation
     imposing definitive anti-dumping duties on imports of personal fax machines in its
     attached amended form and that the Declaration of the Commission be inscribed in
     the minutes of the Council.
                                                                                        A
 ---pagebreak---                                          Amended proposal for a
                                COUNCIL REGULATION (EC) No ...
                                               of     1998
imposing definitive anti-dumping duties on imports into the Community of personal
 fax machines originating in the People's Republic of China, Japan, the Republic of
                        Korea, Malaysia, Singapore, Taiwan and Thailand
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 384/96 of 22 December 1995 on
protection against dumped imports from countries not members of the European
Community,1 as amended by Regulation (EC) No 2331/96,2 and in particular Article 9(4)
thereof,
Having regard to the proposal submitted by the Commission after consulting the
Advisory Committee,
Whereas:
                                            A.   PROCEDURE
(1)   Provisional anti-dumping duties were imposed on 1 November 1997 by
      Commission Regulation (EC) No 2140/973 ("provisional duty Regulation").
      Following the imposition of the provisional anti-dumping duties, the Community
      industry, two exporters' associations, a number of producers/exporters and
      importers submitted comments in writing. All parties who so requested were
      granted a hearing.
(2)   The Commission continued to seek and verify all information it deemed necessary
      for the definitive findings, and carried out investigations at the premises of a
      number of importers related to exporters from the countries concerned. The 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 and the
      collection of amounts secured by way of the provisional duty. The parties were also
      granted a reasonable period within which to make representations subsequent to the
      disclosures.
       B. PRODUCT UNDER CONSIDERATION AND LIKE PRODUCT
(3)   The proceeding covers personal or consumer fax machines (hereinafter called
      "personal fax machines" or "product concerned"). These machines are mainly
      intended for the transmission and reception of paper documents using a telephone
      signal, are often used at home or as a personal desktop set and usually offer
         O J N o L 5 6 , 6 . 3. 1996, p. 1.
         OJNoL317, 6. 12. 1996, p. 1.
         OJL297, 31.10.1997, p. 61
                                                                                         AQ~
 ---pagebreak---     additional facilities for communication. In addition to the fax function and
    telephone(s) and/or connection(s) for a telephone set or cordless hand-set, they may
    or may not include a paper feeder and offer one or more of the following functions:
    a cassette or digital answering function, a copy function or an intercom facility. The
    above list is not exhaustive.
(4) For the purpose of its preliminary findings, the Commission distinguished personal
    or consumer fax machines from professional fax machines by virtue of their weight
    and size. Only fax machines with a weight of 5 kilograms or less and with
    dimensions (width x depth x height) of the main body measuring 470 mm x 450
    mm x 170 mm or less, were considered as personal or consumer fax machines for
    the purposes of the present investigation. For the purpose of assessing the weight
    and dimensions, the paper load and other consumables, as well as any cordless
    hand-sets, were excluded. It was furthermore considered that, at present, fax
    machines using ink-jet or laser printing technologies are aimed only at professional
    use and consequently the machines using these technologies were excluded from
    the application of the provisional anti-dumping duty.
(5) Personal fax machines are currently classifiable under CN code 8517 21 00.
1.   Characteristics of professional fax machines
(6) After the imposition of the provisional anti-dumping duties, exporters argued that,
    for the product definition, the criteria of weight and size were inappropriate, since
    they would soon lead to the inclusion of professional (office) fax machines.
(7) However, the investigation has shown that the product definition based on weight
    and size did not, with respect to the investigation period, result in the inclusion of
    professional faxes. Nor did any interested party claim that, between the end of the
    investigation period and December 1997, there were any professional faxes
    available on the Community market which would come within the weight and size
    criteria. As to future developments, no substantiated submission was made by the
    interested parties, nor were any findings established in the investigation which
    would suggest that such professional machines would be introduced into the market
    during the period of application of anti-dumping duties. It is therefore concluded
    that the criteria of weight and size would not, in the near future, lead to the
    inclusion of professional fax machines into the scope of the proceeding.
     Once such professional fax machines are introduced into the Community the
    Commission will, if necessary, submit a proposal to the Council in order to clarify,
    on an individual model by model basis, that these fax machines do not fall under
    the present Regulation.
2.  Printing technologies
(8) It was further argued that personal fax machines using printing technologies other
    than thermal sensitive, (i.e. machines using thermal-transfer, ink-jet, laser or LED
    printing technologies) should be excluded.
2.1 Th ermal transfer faxes
 ---pagebreak--- (9)   In respect of this argument, the investigation has shown the following:
Physical and technical characteristics
(10) In weight and size, and their essential technical features, thermal transfer faxes are
      similar or identical to the thermal paper models. The only difference is the printing
      technology and, resulting therefrom, the paper used. Both thermal transfer and
      thermal paper technologies use heat to transfer information onto paper via a single
      print head. Both print heads are almost identical. It would therefore in principle be
      possible to print thermal paper with a thermal transfer print head. Moreover, the
      electrical components to control the print heads are identical. Essential elements of
      the thermal printing technology are thus the basis for the newer thermal transfer
      technique. In that respect, it was found that thermal transfer is the result of the
      normal product development of thermal paper printing technology.
 Use and consumer perception
(11) Both product types have, in general, similar designs and visual aspects, and
      handling is simple for both. It has been shown that private users and small/home
      offices use both thermal paper faxes and thermal transfer faxes.
      The differences in printing technology, i.e. the better printing quality of thermal
      transfer faxes, and the advantages of using plain paper, are taken into consideration
      by the consumers only as one aspect among all the technical features available. The
      main objective of the consumer in purchasing a fax machine remains that of
      obtaining a device for his personal use capable of transmitting and receiving fax
       messages. In comparison, the printing technology used for the two product types in
       question is, from the consumer perspective, just an ancillary element.
Sales channels
 (12) In the investigation period, thermal paper and thermal transfer faxes were, in
       general, sold through the same sales channels.
 Conclusion
 (13) In view of the above, it is considered that thermal paper faxes and thermal transfer
       fax machines form one product.
 2.2   Ink-jet, laser, LED printing technologies and portable faxes
 (14) As to fax machines using ink-jet, laser or LED printing technology, the definitive
       determinations have confirmed that these machines are, in general, substantially
       different to personal faxes in respect of physical and technical characteristics (in
       particular in view of weight/size and performance), that they are designed for
       professional rather than personal use, and that they are, to a significant extent, sold
       through different sales channels.
 ---pagebreak--- (15) In view of these differences, fax machines using ink-jet, laser and LED printing
     technology cannot be considered as like products to the product under
     consideration.
(16) Some interested parties have further argued that certain new types of portable     fax
     machines to be used in connection with mobile telephone sets which were, in        the
     investigation period, not yet available on the Community market, would be          for
     professional use only and should therefore be excluded from the scope of           the
     proceeding.
(17) On the basis of the information available, it is considered that portable fax
     machines, to be used only in connection with mobile phones, have different
     physical and technical characteristics and will indeed be for professional use only.
     Thus, these machines do not fall within the definition of the product under
     consideration. Once such professional fax machines are introduced into the
     Community the Commission will, if necessary, submit a proposal to the Council in
     order to clarify, on an individual model by model basis, that these fax machines do
     not fall under the present Regulation.
3.   Conclusions
(18) The provisional findings are confirmed, whereby the product definition shall be
     based on the weight and size criteria, as defined in the provisional duty Regulation.
(19) Furthermore, it is confirmed that the product concerned, within the meaning of
     Article 1(4) of the Basic Regulation, is thermal paper fax machines and thermal-
     transfer fax machines.
(20) Fax machines using ink-jet, laser or LED printing technology, and portable fax
     machines to be used only in connection with mobile phones shall be excluded from
     the scope of the proceeding.
                                    C.    DUMPING
1.   Level of co-operation
(21) The level of co-operation by the producers/exporters in this proceeding was
     particularly low in Malaysia, Thailand, Taiwan, Japan and China, since the export
     volume to the Community covered by the co-operating producers/exporters
     represented only a small fraction of the total exports from the countries concerned.
(22) The information provided by the co-operating producers/exporters was verified and
     in the majority of cases was taken into account. Nevertheless, in some cases the
     investigation revealed that part of the information submitted was inaccurate,
     unsubstantiated or insufficient, and consequently it had to be disregarded. In these
     situations the Commission based its definitive findings on the facts available,
     pursuant to Article 18 of the Basic Regulation.
 ---pagebreak--- 2. Market economy countries
2.1 Normal value
Application of Article 18(1) of the Basic Regulation
(23) The Singapore producer/exporter contested the Commission's decision to apply
       facts available pursuant to Article 18(1) of the Basic Regulation for the assessment
       of its normal value (see recital (66) of the provisional Regulation). The company
       alleged that the unreported transactions made on the domestic market would be for
       re-export to a third country. Moreover, they claimed that, pursuant to Article 18(4)
       of the Basic Regulation, they should have been informed by the Commission of its
       decision, as no opportunity to provide further explanations was offered. The
       company also disputed the method used by the Commission to establish normal
       value on the basis of the facts available because it considered that the evidence
       collected on-spot (invoices referring to the unreported transactions) should have
       been used instead of the highest reported resale price.
       The investigation revealed that the sales in question were actually made on the
       domestic market and had not been reported as such by the company. Moreover, the
       company was asked to provide evidence supporting that the sales in question were
       not destined for domestic consumption but were actually exported outside
       Singapore. Despite repeated requests, the company did not provide any evidence of
       a subsequent re-export to a third country. At a hearing requested by the company
       subsequent to the verification visit, no satisfactory explanation was provided.
 (24) Concerning the method applied by the Commission to establish normal value with
       regard to these transactions, the facts used to assess the normal value were verified
       and are reasonable in the light of the company's partial non co-operation. The
       provisional findings of the Commission, as set out in recital (66) of the provisional
       Regulation, are therefore confirmed.
 (25) One Korean producer/exporter for which it was decided to apply facts available in
        order to assess its material costs, pursuant to Article 18 of the Basic Regulation (see
        recital (32) of the Provisional Regulation) claimed that this decision was unjustified
        and that the costs of material, as reported in its questionnaire reply, should have
        been used instead. Furthermore, it considered that the method used by the
        Commission to adjust the normal value as a consequence of the partial non co-
        operation was flawed.
 (26) The investigation revealed that the material costs reported contained serious
        inconsistencies and could not, therefore, be accepted. No further explanations were
        provided by the company justifying the inconsistencies. With regard to the
        methodology used to establish the facts available, it should be pointed out that a
        conservative approach was applied for the adjustment of material cost by using the
        smallest difference found between the lowest and the average material values.
  Constructed normal value (SG&A)
  (27) The single co-operating Thai producer/exporter, which had no domestic sales,
         contested the method used to establish selling, general and administrative expenses
 ---pagebreak---      (SG&A) and profit when constructing normal value. As stated in recital (77) of the
     provisional Regulation and in accordance with Article 2(6)(c) of the Basic
     Regulation, in the absence of any domestic sales, the Commission decided to
     construct normal value by adding to the company's manufacturing costs the
     weighted average domestic SG&A and profit established on all profitable sales of
     the co-operating exporters in Taiwan. The company claimed that it formed an entity
     with the co-operating Taiwanese producer/exporter and that in view of this
     relationship, SG&A and profit should have been determined on the basis of the first
     method set out in Article 2(6) of the Basic Regulation which would be, according
     to the company, the actual data pertaining to that Taiwanese company.
     Alternatively, should Article 2(6)(c) of the Basic Regulation be applied, the
     company requested that only the SG&A and profit of its related Taiwanese
     company should be used, due to the close links between the two.
(28) It should be noted that, according to Article 2(6) of the Basic Regulation, SG&A
     expenses and profit margin to be used in a constructed value are those incurred or
     made on the domestic market of the exporting country, i.e. Thailand. However, in
     the absence of information on domestic sales of fax machines in Thailand by the
     company concerned or by any other company, and given that no information was
     available on SG&A expenses and profit of the same general category of products,
     as provided for under Article 2(6)(a) or (b) of the Basic'ReguIation, recourse had to
     be made to Article 2(6)(c), i.e. to base SG&A and profit on any other reasonable
     method. In this respect it was considered that the weighted average SG&A and
     profit incurred or realised by all co-operating exporters on the Taiwanese market
     constituted an appropriate and reasonable basis, since Taiwan is a competitive
     market where a substantial number of firms operate, and constituted the best
     approximation available to the Commission of the conditions of sales on the Thai
     market for the product concerned.
(29) To use, as suggested by the Thai producer, solely the SG&A and profit of the
     Taiwanese company with whom it is related does not provide a more appropriate
     basis. Indeed, the sales of the Taiwanese related company in isolation represented a
     relatively small fraction of the Taiwanese market.
Comparison
Import charges
(30) In recital (37) of the provisional Regulation the Commission stated that claims for
     allowances for import charges made by Korean producers/exporters were rejected
     since these claims were calculated on an average basis for all products and the
     relationship between the duty paid and the specific model of fax machine
     concerned was not demonstrated. Three Korean producers/exporters claimed that
     this decision was unreasonable. They requested that the Commission services
     should not insist on precise calculations by model, but instead accept an overall
     allocation of duties paid. Furthermore, they claimed that a duty drawback
     adjustment would have to be granted irrespective of the fact whether or not
     domestic models included parts purchased locally.
(31) It must be stressed that it is a primary requirement for the granting of such an
     allowance that evidence is provided that the parts have not been purchased locally
                                                                                          6
 ---pagebreak---       since otherwise, no import duty has been paid for such parts. In one case, the
      exporter was able to demonstrate, at least in part, to the satisfaction of the
      Commission that the adjustment was justified. The adjustment was made only to
      the extent that the claim was demonstrated.
Level of trade
      a) Difference in the functions performed
(32) The two Japanese and the Singapore producers/exporters, as well as one of the
      Korean companies claimed a domestic allowance for differences in level of trade
      based on Article 2(10)(d) of the Basic Regulation, which has been provisionally
      rejected on the grounds stated in recitals (49) and (71). of the provisional
      Regulation. The companies objected to this position, re-affirming that the
      difference in functions performed domestically and on the export side would
      automatically correspond to a different level of trade and that therefore, an
      adjustment should be granted to allow a proper comparison between normal value
      and export price. In support of their argument, the companies claimed that, when
      constructing the export price pursuant to Article 2(9) of the Basic Regulation, it is
      the Institutions' policy to deduct all the costs, incurred by the related importers in
      the Community from the price paid to the first independent customer thus bringing
      the export price to an ex-factory level. Hence, they state that, in order to obtain a
      normal value at a comparable level of trade, the same categories of expenses which
      are incurred on the domestic market, plus a corresponding profit based on that
      obtained on domestic sales should also be excluded, pursuant to Article 2(10)(d) of
      the Basic Regulation.
(33) This argument cannot be accepted, since it ignores an essential requirement of the
      Basic Regulation in that respect, i.e. that the levels of trade at which the sales are
      performed domestically and on the export market must be defined by the claimant,
      and in particular how this eventual difference affects price comparability.
(34) It should be recalled that the Institutions' practice to reconstruct the export price by
      deducting the costs incurred by the related importers from the price to unrelated
      importers brings the Community border price to the level of a sale to an
      independent customer. Since, in the present case, the resale price from the related
      importers to the independent customers was found mainly to be at the level of
      prices charged to large retailers and distributors, a deduction of the importers'
      expenses in selling to such customers results in a price which is at a level further up
      in the sales chain. It is consequently to consider the export price after re-
      construction equivalent to a price charged to a distributor.
(35) As to the companies' claim that, because costs were deducted to reconstruct the
      export price a similar deduction should be made to the domestic price, this is
       considered/?er se not warranted. Since in the present case the reconstruction of the
       export price led to a level of trade corresponding to that of a distributor, this
       corresponded to the domestic level of trade. The fact that certain costs may be
       incurred on the domestic market in selling to distributors which are not incurred in
       the similar export level is linked to the specific structure or circumstances of the
 ---pagebreak---       markets under consideration, but could not per se lead to an adjustment when it is
      clear that prices are made to a similar type of customers, i.e. distributors.
(36) The Japanese and Korean companies claimed that the average domestic price
      cannot be used as a normal value because these sales took place at several different
      levels of trade, only one of which corresponded to the export level. The
      Commission examined the situation in detail but was unable to conclude that the
      exporters' claim was substantiated in that no clear breakdown could be provided by
      the companies either in terms of different costs or prices to demonstrate such
      different levels domestically. What the Commission was able to establish, in
      contrast, was that the prices to all domestic clients were approximately the same to
      the various groups of customers, a factor which suggested that levels of trade were
      not different. In any event, given that domestic prices to all groups of customers
      were similar, and given that one group of these corresponded to the level of trade of
      the export customers (distributors), a level of trade adjustment was not justified.
     Normal value would be the same whether based on sales to one group or to all
      customers.
(37) In the case of Singapore domestic sales were allegedly all made to a single level of
     trade, i.e. distributors. It must be recalled that normal value was established
     pursuant to Article 18(1) of the Basic Regulation, due to the company's omission to
     report a substantial number of domestic transactions of the product concerned,
     which prevented a more detailed verification of the domestic levels of trade. On the
     basis of the information available to the Commission, no difference was found
     between domestic and export levels of trade.
(38) For the above reasons, normal value was established on the basis of all domestic
     sales and it was considered that the adjustments for differences in level of trade as
     requested by the Japanese, Singapore and Korean producers/exporters were not
     justified.
(39) Nevertheless, in circumstances not covered by an adjustment for differences in
     level of trade as defined by Article 2(10)(d)(i) of the Basic Regulation, Article
     2(10)(d)(ii) allows the granting of a special adjustment when certain functions are
     shown to relate to a level of trade other than the one used for the comparison. In the
     present case, the investigation revealed that while the adjustment for differences in
     level of trade could not be granted, the function of advertising should receive a
     special consideration in the light of Article 2(10)(d)(ii). The Commission
     examined, in particular, whether the companies concerned incurred advertising
     expenses to encourage sales at levels of trade other than the one used for the
     comparison. It was found indeed that, for the companies concerned certain
     advertising expenses related, in the present case, to a level of trade other than the
     one used in the comparison. In consequence, it was decided pursuant to Article
     2(10)(d)(ii) of the Basic Regulation, to exclude from the computation of the normal
     value those advertising expenses incurred in domestic sales which relate to a level
     of trade other than distributors.
     b) OEM sales
 ---pagebreak--- (40) One producer/exporter in Taiwan, one in Thailand and two in Korea disputed the
     rejection of their claim for an adjustment for differences in levels of trade based on
     OEM export sales.
(41) The requested level of trade adjustment could not be granted since no clear price
     pattern could be established between the alleged sales channels. In certain cases,
     prices for OEM models were found to be higher than for own brand sales. In the
     case of one Korean company it was also found that the customer classification
     given was inaccurate and therefore had to be disregarded. In the Taiwanese market,
     OEM domestic sales did not reveal any consistent price difference compared to
     own brand sales.
(42) In the case of the Thai producer, which had no domestic sales and exported only on
     an OEM basis, normal value was constructed using the average SG&A and profit
     of the Taiwanese market, for which, as explained above, no adjustment of this
     nature was required. Consequently, the claim is rejected.
Commissions
(43) The Thai company disputed the fact that a 5% commission had been deducted from
     the price to the first independent purchaser in the Community to account for the
     participation of its Taiwanese related company in these transactions. According to
     them only directly related selling expenses should be deducted and, therefore there
     would be no legal basis to apply this 5% commission which was allegedly not
     actually incurred.
(44) The investigation confirmed that all exports by the Thai producer/exporter to the
     Community were made via a related company in Taiwan. It has been determined
     that because of the relationship between the two companies, the transfer prices
     charged by the Thai producer to the related Taiwanese company were not on an
     arm's-length basis. It was verified on-spot that there was a mark-up between the
     transfer price and the price paid by the first independent customer in the
     Community. This difference was intended, at least partially, to cover the costs
     incurred by the related company for the activities performed for the purpose of
     exporting the product concerned. As the related Taiwanese company's functions
     can be considered similar to those of a trader, an adjustment of 5% was deducted
     from the price to the first independent customer in the Community. This figure is
     considered reasonable given the degree of the related company's involvement in
     the selling activities of the Thai producer/exporter.
(45) One company in Singapore claimed an adjustment for commissions paid to related
     companies in Japan. This claim was already rejected on the grounds stated in recital
     (73) of the provisional Regulation. The company objected to this position re-
     affirming that the adjustment was needed because of the significant role played by
     two Japanese related companies both in the production and the marketing of the
     product concerned in Singapore.
(46) The issue was re-examined. The investigation established that the amount claimed
     related in fact to royalties and profit transfers which the two related Japanese
     companies received. Such payments cannot be considered as commission payments
 ---pagebreak---      within the meaning of Article 2(10)(i) of the Basic Regulation. Consequently, the
     request for an adjustment had to be rejected.
(47) However, with regard to export sales, it was found that the Japanese companies
     entirely managed such sales. The function of the Singapore company was limited to
     invoicing the goods and to arranging the shipping. Therefore, since the related
     companies' functions can be considered similar to those of a trader, an adjustment
     of 5% was deducted from the price to the first independent customer in the
     Community, in order to account for their involvement in the selling and
     administrative activities of the Singapore producer. The level of the adjustment was
     determined at 5% since the actual expenses incurred by the Japanese related
     companies were not reported in the reply to the questionnaire, although this was
     specifically requested, and consequently could not be verified on-spot.
Credit costs
(48) In recital (39) of the provisional Regulation it was stated that the allowances
     claimed for credit cost by all Korean companies were rejected since the claims were
     made on the basis of a so called "open account", i.e. a revolving payment system,
     without evidence of an agreement between supplier and buyer of the product at the
     date of sale. Three Korean producers/exporters claimed that this would not be in
     line with traditional Commission practice. On this basis, a credit cost adjustment to
     normal value representing at least a credit period of 30 days should have been
     granted.
(49) It is the Institutions' practice to accept an allowance for credit costs where the
     exporter shows that the payment terms were a factor taken into account in the
     determination of the prices charged, in accordance with Article 2(10)(g) of the
     Basic Regulation. An adjustment will therefore only be granted for the number of
     days shown to be agreed at the date of the sale, as only the expenses relating to that
     number of days can be considered to have influenced the price. Such an agreement
     does not exist were payments were made on an open account basis and
     consequently the claim could not be accepted.
Warranty costs
(50) One Korean producer/exporter claimed that a more reasonable estimate of an
     allowance for differences in warranty costs should be made by including certain
     expenses allegedly incurred in fees paid to independent agents and salaries paid to
     repairmen.
(51) The investigation revealed that the reported warranty expenses for the domestic
     market were overstated and consequently that they were an unreliable basis to the
     assessment of the adjustment. For the provisional determination it was decided to
     base the allowance for warranty costs only on the actual costs incurred for
     providing customers free of charge with spare parts. In the absence of any new
     evidence which could justify an increase of the allowance for warranty expenses
     the provisional findings are hereby confirmed.
Other factors
                                                                                         10
 ---pagebreak--- (52) A Taiwanese company repeated its request for a specific allowance to be made
     pursuant to Article 2(10)(k) of the Basic Regulation, by deducting salesmen's
     salaries, advertising expenses and rent from normal value, since it considered that
     most of the expenses incurred with these functions related to domestic sales.
(53) The Japanese and Singapore producers/exporters also requested, as an alternative,
      in case of rejection of the claim for a level of trade adjustment (see supra), that
      other specific allowances —like salesmen's salaries, advertising expenses, etc.--
      should be deducted from normal value. The Singapore company objected to the
      rejection of this claim (see recital (72) of the provisional Regulation) claiming that
     the request for evidence on the difference in prices paid by the customers on the
      domestic market provided in Article 2(10)(k) is merely provided as an example,
      and therefore is not imperative.
(54) All companies which made the claim under Article 2(10)(k) of the Basic
     Regulation, failed to provide evidence of significant and consistent price
     differences as required by that provision. To show only a difference in costs
     between the export and the domestic sales departments of the same company is an
     insufficient basis for a claim for differences in price comparability, let alone to
     demonstrate an impact on prices. Furthermore, the assumption that the request for a
     difference in prices is given as an example is incorrect, since subparagraph (k)
     reinforces the two requirements set in the general part of Article 2(10) of the Basic
     Regulation, i.e. that the adjustments listed in (a) to (k) can only be granted if it is
     claimed and demonstrated that they affect prices and price comparability. In the
     absence of any evidence showing that these conditions were met in this specific
     case, the claim had to be rejected.
3. Non-Market economy countries
3.1    Individual treatment
(55) The companies to which individual treatment was not granted, contended that the
     provisional Regulation was inadequately motivated in this respect. Furthermore,
     they reiterated their request for individual treatment on the grounds that they were
     independent from the control of the Chinese State.
(56) It should be noted that, pursuant to Article 9(5) of the Basic Regulation a single
     country wide duty is established for non-market economy countries. The granting
     of individual treatment to certain exporters remains consequently an exception to
     the rule. Each producer/exporter who wishes to benefit from this exception has to
     demonstrate the absence of interference by the State. Two of the Chinese producers
     were able to demonstrate that they fulfilled all the criteria to obtain individual
     treatment. In relation to the three remaining Chinese producers such independence
     was not demonstrated by the companies, therefore the Institutions had no option
     but to apply them the countrywide duty.
3.2  Model comparison
(57) Chinese producers/exporters contested the fact that normal value was partially
     based on models of a Korean producer in respect of which Article 18 of the Basic
                                                                                          11
 ---pagebreak---       Regulation was applied. These exporters claimed that the use of a normal value
      found for a non co-operating company would be unfavourable to them.
(58) The issue was re-examined and, given that Article 18 of the Basic Regulation was
      applied to the establishment of normal value, these models were finally excluded
      from the calculation.
(59) One of the Korean companies with production both in China and Korea, contended
      that the normal value for one of their China produced models, should have been
      established by reference to the constructed value of the same model produced by it
      in Korea.
(60) The request has been rejected since facts available were applied on the basis of
      Article 18 of the Basic Regulation to establish the normal value of the related
      Korean producer/exporter, and, as explained above, these models have been
      excluded from the determination of the Chinese normal value. Furthermore, it must
      be stressed that normal value should be based on data obtained in the analogue
      country as a whole, if possible, and not only on sales of one particular producer.
3.3 Comparison
Level of trade
(61) Chinese producers/exporters continued to request an adjustment for differences in
      level of trade on the grounds that their export sales were made to OEMs.
(62) As described above, an analysis of Korean domestic sales prices of OEM sales and
      sales of own-brand product showed that any difference in levels of trade in this
      respect was not reflected in consistent and distinct differences in prices. In the
      absence of price differences between OEM sales and own brand sales in Korea and
      since the Chinese normal value has been based on the Korean domestic market,
      there were no grounds to make an adjustment.
Commissions
(63) Three Japanese companies are involved in the proceeding concerning China since
      they exported fax machines of Chinese origin to the Community. Their fully
      owned subsidiaries in Hong Kong appeared to have either a subcontracting
      agreement with a Chinese company for production (or assembly) in China or a
      company set-up (legal entity) in China. In the provisional calculation a mark-up for
      the activities performed in Hong Kong and Japan was deducted in the form of
      commission. The Chinese producers/exporters claimed that this deduction of 5%
      from the export price was not correct since this would not relate to an actual
      commission payment.
(64) As the related Japanese companies' functions can be considered similar to those of
      a trader acting on a commission basis, an adjustment of 5% has been deducted from
      the price to the first independent customer in the Community. This figure is
      considered reasonable given the degree of the related companies' involvement in
      the selling and administrative activities of the Chinese producers.
                                                                                         12
 ---pagebreak--- (65) Article 2(10)(i) of the Basic Regulation sets out that an adjustment has to be made
       for differences in commissions paid in respect of the sales under consideration. In
       this respect, it should be stressed that it makes no difference if the
       producer/exporter invoices directly its customer in the Community and pays a
       commission to the parties involved in arranging the sales transaction or if the
       producer/exporter invoices the intermediary which in turn invoices to the customer
       in the Community. The latter arrangement is merely a different way of ensuring
       that the intermediary receives its commission. In accordance with the Council's and
       the Commission's consistent practice, the claim could not, therefore, be accepted.
4. Dumping margin for companies investigated
4.1 Dumping margin for co-operating companies
(66) According to Article 2(11) of the Basic Regulation, the dumping margin was
       established on the basis of a comparison of a weighted average normal value with a
       weighted average export price of all export transactions to the Community.
4.2 Dumping margin for non co-operating companies (residual dumping margin)
 (67) In the absence of any comments by the interested parties it is decided to apply the
        method set out in recital (28) of the provisional Regulation, i.e. for each of the
        exporting countries the company with the highest dumping margin was selected
        and the highest dumped model produced and sold by this company in significant
        quantities was identified. The residual dumping margin was determined on the
        basis of the weighted average margin established for this model, expressed as a
        percentage of the CIF import price at the Community border.
 4.3 Dumping margins
 Republic of Korea
 (68) For the co-operating producers/exporters the definitive dumping margins,
        expressed as a percentage of the CIF import price at the Community border, are:
         Samsung Electronics Co. Ltd, Seoul                    19.8%
         Daewoo Telecom Ltd, Seoul                             11.6%
         Nixxo Telecom Co., Ltd, Seoul                          7.5%
          Tae II Media Co., Ltd, Seoul                          9.2%.
 (69) The residual dumping margin for Korea, expressed as a percentage of the CIF
        import price at the Community border, is 25.1%
 Japan
  (70) For the co-operating ' producers/exporters the definitive dumping margins,
        expressed as a percentage of the CIF import price at the Community border, are the
        following:
                                                                                          13
 ---pagebreak---        Brother Industries, Ltd., Nagoya:                     49.2%
       Tottori Sanyo Electric Co., Ltd., Tottori:           124.2%
(71) The residual dumping margin for Japan, expressed as a percentage of the CIF
     import price at the Community border, is 130.2%
Taiwan
(72) For the co-operating producers/exporters the definitive dumping margins,
     expressed as a percentage of the CIF import price at the Community border, are the
     following:
       Kinpo Electronics, Inc., Taipei                       6.0%
       Sampo Corporation, Taipei                            56.2%.
(73) The residual dumping margin for Taiwan, expressed as a percentage of the CIF
     import price at the Community border, is 60.8%.
Singapore
(74) For the co-operating producer/exporter the definitive dumping margin, expressed as
     a percentage of the CIF import price at the Community border, is the following:
       Matsushita Graphic Communication Systems (S) Pte., Ltd., Singapore        30.1%.
(75) The residual dumping margin for Singapore, expressed as a percentage of the CIF
     import price at the Community border, is 68.2%.
Thailand
(76) For the co-operating producer/exporter the definitive dumping margin, expressed as
     a percentage of the CIF import price at the Community border, is the following:
       Cal-Comp Electronics (Thailand) Co. Ltd., Bangkok                  10.4%.
(77) The residual dumping margin for Thailand, expressed as a percentage of the CIF
     import price at the Community border, is 22.6%.
Malaysia
(78) The residual dumping margin for Malaysia, expressed as a percentage of the CIF
      import price at the Community border, is 124.2%
The People's Republic of China
(79) The definitive dumping margin for China, expressed as a percentage of the CIF
      import price at the Community border, is 51.6%,
                                                                                      14
 ---pagebreak--- (80) The definitive dumping margins for the companies which received individual
     treatment, expressed as a percentage of the CIF import price at the Community
     border, are as follows:
                         Î
     Murata Machinery (H.K.) Ltd., Hong Kong (products originating in China): 21.2%;
     Highsonic Industrial Ltd., Hong Kong, (products originating in China):      23.2%.
                           D.   COMMUNITY INDUSTRY
(81) After the imposition of provisional anti-dumping duties, some interested parties
     have claimed that the complainant Community producer should not be considered
     as the "Community Industry", in view of the non-co-operation of the second large
     Community producer. However, in the investigation it was determined that the
     complainant Community producer represents a major proportion of the total
     Community production, pursuant to Article 4(1) of the Basic Regulation. This
     producer is thus considered as the Community Industry for the purpose of this
     proceeding.
                                    E.    INJURY
1.   Cumulative assessment of the effects of the dumped imports
(82) The Japanese exporters have argued that the Commission should not assume non-
     co-operation with regard to around 10 Japanese fax producers, which had refused to
     co-operate with the Commission in this proceeding and had not replied to the
     questionnaires sent to them by the Commission's services, because these
     companies allegedly ceased exports to the Community prior to the investigation
     period. The import trends for Japan should be based on the data submitted by the
     Japanese Manufacturers' Association CI A J for these non-co-operators in the course
     of the proceeding, and on the data submitted by the 2 co-operating Japanese
     exporters. These data would show a significant decline of Japanese imports from
     1993 to 1996. In view of these trends, imports from Japan should be de-cumulated.
(83) An exporter of Chinese products argued that the Chinese exports should have been
     de-cumulated, since Chinese exporters have focused on OEM customers, whereas
     the other exporting countries have aimed at the consumer market. This exporter
     also claimed that different injury margins were found and different pricing
     strategies would have been applied by the exporters from different countries. This
     would justify de-cumulation, since it would indicate a lack of competition between
     these products.
(84) Furthermore, exporters have argued that the Japanese and Singapore average
     prices were between 40% and 48% higher than the overall average for all exporting
     countries concerned. This would justify de-cumulation for these countries, since it
     would indicate that the products did not compete with those of the other exporting
     countries concerned.
                                                                                      15
 ---pagebreak--- (85) The conditions to cumulate imports for the purpose of the injury determination,
      pursuant to Article 3(4) of the Basic Regulation, are as follows:
      (a) the dumping margins established in relation to each country are more than de
          minimis as defined in Article 9 (3);
      (b) the volume of imports from each country is not negligible; and
      (c) a cumulative assessment of the effects of the imports is appropriate in light of
          the conditions of competition between imported products and the conditions of
          competition between the imported products and the like Community product.
1.1   Dumping margins
(86) As outlined above, the dumping margins found for each of the exporting countries
      are more than de minimis in the sense of Article 9(3).
1.2   Import volumes
(87) With respect to import volumes from Japan, in the absence of reliable, verified data
      from all Japanese exporters, they are, for the purpose of the definitive findings,
      established on the basis of Eurostat data. Since Eurostat data do not distinguish
      between business and personal faxes, the import volume of personal faxes was
      determined by applying the ratio between business and personal faxes of Japanese
      origin established during the investigation for co-operating unrelated importers and
      importers related to Japanese exporters. This indicated, for the parties concerned,
      that 41.1 % (in units) of all fax machines of Japanese origin sold in the Community
      in the investigation period were personal faxes. The import volume for Japan for
      the period under consideration was thus determined to be equal to 41.1 % of the
      total imports from Japan as reported by Eurostat.
(88) Indeed, the Japanese import volumes cannot be based on the data submitted by the
      Japanese Manufacturers' Association CIAJ since a substantial part of this data
      refers to non-co-operating Japanese exporters which refused to reply to the
      questionnaires sent to them by the Commission's services and thus prevented the
      Commission from obtaining and verifying the relevant data. Furthermore, no
      evidence has been submitted to show that no imports of personal fax machines
      other than those of the 2 co-operating Japanese exporters have taken place during
      the investigation period. These exporters have thus failed to prove the alleged
      strongly declining export trends.
(89) Therefore, the provisional determinations are confirmed, whereby the import
      volumes from Japan have to be established on the basis of facts available, pursuant
      to Article 18 of the Basic Regulation.
      The import volumes thus established for the Japanese exports remain significant.
1.3   Conditions of competition
Sales channels
 ---pagebreak--- (90) With respect to the argument that Chinese exporters focussed on OEMs and that the
       sales channels thus had to be considered different, there was substantial non-co-
       operation from Chinese producers. Therefore, no general conclusions in respect of
       Chinese exports can be drawn from the situation of the co-operating exporters only.
       Furthermore, the Commission has established that most co-operating parties from
       all exporting countries concerned sell the product concerned in the EU to several
       categories of customers, including OEM customers.
(91) This also applies to the Community Industry. The proportion of sales to the various
       categories of customers is naturally different. However, this does not change the
       fact that these parties compete with each other, and there would be no justification,
       even had there been full co-operation, to de-cumulate the Chinese exports on these
       grounds.
Prices
(92) With respect to the argument concerning higher prices for Japanese and
       Singaporean imports, the Commission has established that Japanese and
       Singaporean personal fax machines imported into the Community have, in general,
       a higher number of technical features and are more at the high end of the product
       range than those from the other exporting countries. Therefore, it is normal that the
     ' average import prices for these two countries are higher. Nevertheless, Japanese
       and Singapore products did compete with those of the other exporting countries
       which also exported, though to a lesser extent, high-end product types, and they
       competed with those of the Community Industry, which is shown by the fact that
       they have identical or similar physical and technical characteristics, that they serve
       the same use, and that they were sold through the same or similar sales channels.
       Although the Singaporean and Japanese exporters have, overall, ' not or not
       significantly undercut the sales prices of the Community Industry (see below 2 (a)
       price undercutting), the falling export prices from Singapore and Japan had a price
       suppressing effect which had the result that the Community Industry was not in a
       position to rise its prices to a profitable level.
       Therefore, the conditions of competition are similar.
1.4     Conclusions
(93) In view of the above, the conclusions of the provisional findings are confirmed,
       whereby the conditions to cumulate imports for the purpose of the injury
       determination, pursuant to Article 3(4) of the Basic Regulation, are fulfilled.
         General injury factors
General remark
(94) On the basis of the representations received after the imposition of provisional
       measures and further investigations, a number of the general injury factors have
       now been definitively established.
                                                                                           17
 ---pagebreak--- Consumption
(95) After the imposition of the provisional anti-dumping duties, the consumption in the
      Community is now established as follows.
(96) It grew from around l.lmio units in 1993 to 2.5mio units in 1996 (investigation
      period), an increase of around 130%.
Cumulated volumes, market shares
(97) Furthermore, the following trends were established for the cumulated imports from
      the countries concerned:
      (i) In the period 1993 to 1994, the exporting countries increased their sales
           volume by 33.7%, but their market shares decreased by 11.4 %-points (from
           62.5% to 51.1%).
      (ii) In the period 1994 to 1996, the import volume of the exporting countries
           increased by 76.9%, and their market shares went up from 51.1 % to 64.3 %,
           i.e. by 13.2 %-points.
Prices
(a)     Price undercutting
(98) After the imposition of the provisional anti-dumping duties, it was established that
      there was no price undercutting for the (only) exporter from Singapore.
(99) For the other co-operating exporters, the provisional findings are confirmed
      whereby price undercutting was found for the model groups on which the
      determination was based. The undercutting margins established per model group
      range between 1.3% and 41.8%. The weighted average undercutting margin in
      relation to the total imports per country are definitively determined as follows: PR
      China 18.5%, Japan 0.3%, Taiwan 4.5%, Singapore 0.0%, Korea 9.2%, Thailand
      10.9%, Malaysia 41.8%. The weighted average undercutting margin for all
      countries concerned is 8.4%.
(b)     Sales prices
(100) In the period 1993 to 1994, the sales prices of the co-operating exporters decreased
      on average by 11% and, between 1994 and 1996, the decrease amounted to 26.1 %,
      on average. The Japanese and Singaporean exporters also showed decreasing price
      trends in this period.
        Situation of the Community Industry
(101) On the basis of the comments received after imposition of the provisional anti-
      dumping duties and further investigations, the following was established:
 ---pagebreak--- (102) In the period 1993 to 1994, the Community Industry's sales volumes rose by 140 %
      and the market shafes went up by 7.7 %-points (from 16.3% to 24 %). This
      positive development was based on the investment made in 1993.
(103) On the other hand, in the period 1994 to 1996, the sales volume of the Community
      industry decreased by 14.7 % and its market share decreased from 24.0% to 14.5%,
       i.e. by 9.5%-points.
(104) In the period 1994 to 1996, the quantities produced and the production capacity
       utilisation decreased substantially as a result of decreasing sales volumes and sales
       prices decreased by 17.5 %. In the same period, employment fell by 21.7%. In the
       same period, the financial results decreased and, in the investigation period,
       showed a two-digit loss (%) on turnover. The Community Industry was not in a
       position to increase its prices to a profitable level, due to the price depression on
       the Community market.
4.        Conclusions
(105) In the light of the above, it is concluded that the Community industry has suffered
       material injury.
                              F.    CAUSATION OF INJURY
1.     Dumped imports
(106) The penetration of the Community market by imports at dumped prices sold
       through the same distribution channels and into the same (transparent) market,
       coincided with a loss of market shares and a deterioration of the financial situation
       of the Community Industry. This industry, throughout the investigation period, sold
       at prices substantially below cost of production. It had not been in a position to
       increase its prices to a profitable level due to the price suppression on the market.
       The price suppressing effect was caused by the undercutting exporters and by the
       Japanese and Singaporean exporters taken together, the latter's' export prices also
       showing a continually decreasing trend. Therefore, the Community Industry had to
       face, at the same time, dumped imports from Japan and Singapore for products that
       were generally in the higher segment of the market, and dumped imports from the
       other exporting countries, concerning more the lower segment of the market where
       competition is mainly led by price.
2.     Other factors
(107) After the imposition of provisional anti-dumping duties, it was argued that the
       injury suffered by the Community industry might have been caused by Sagem, the
       second largest Community producer.
 (108) In this respect, data obtained during the investigation indicates that Sagem's market
       share, which had increased from 1993 to 1994, considerably decreased between
        1994 and the investigation period. Furthermore, statistical information indicates
                                                                                           19
 ---pagebreak---       that on Sagem's main market (France), this company normally charged the highest
      prices within a group of comparable models. On the basis of this information, it is
      considered unlikely that Sagem has to any significant extent contributed to the
      injury suffered bythe Community Industry.
(109) With respect to imports from countries not subject to the investigation, the
      provisional findings had established that there were, in the investigation period, no
      significant imports. No substantiated comments were raised in this respect.
3.    Conclusions
(110) In the light of the above, it is considered that the dumped imports from the
      exporting countries concerned have caused material injury to the Community
      Industry.
                            G.     COMMUNITY INTEREST
(111) After the imposition of provisional anti-dumping duties, it was argued that anti-
      dumping duties would unduly burden consumers and thus be against the
      Community interest. In consequence, further investigations have been undertaken
      and the following findings have been established.
4.    Community Industry and other Community producers
(112) It was established in the investigation that the Community Industry is viable, which
      is, inter alia, shown by continued investment and the development of its own plain-
      paper (thermal-transfer) personal fax machine which will shortly be introduced into
      the market. It can be expected that this industry would discontinue its activities in
      the Community if no measures against dumping were taken, in view of the
      magnitude and duration of financial losses suffered due to dumped imports.
      Without measures, the price-depressive effect of the dumped imports would
      continue and frustrate all efforts of the Community industry to become profitable.
      As a result, around 370 jobs directly linked to the product concerned would be lost
      in the Community. On the other hand, the imposition of measures would enable
      this industry to maintain and even develop its activities in the EU.
(113) Furthermore, it is considered that the imposition of anti-dumping duties is likely to
      positively affect directly and indirectly around 4000 jobs, i.e. around 1000
      employees within all Community producers (Philips, Sagem and the Japanese
      transplants), and indirectly a further 3000 jobs in the area of manufacturing related
      servicing/supply (based on industry evaluations for this sector that 1 industrial
      employment would entail at least 3 support jobs).
5.    Unrelated importers/traders
(114) The investigation has shown that, for unrelated importers and traders, the product
      concerned represented, in general, only a small part of the overall business, on
      average 1% of total turnover. For the co-operating importers, no employment and
      no significant investment was directly related to the product concerned. All but one
                                                                                         20
 ---pagebreak---       of these companies explained that anti-dumping duties would not have a major
      impact on overall sales, profits and employment.
6.    Consumers            ;
(115) On the basis of the definitive anti-dumping duties imposed, the average consumer
      price increase, for products imported from the countries concerned, would be
      around 12 %, based on the assumption that exporters subject to high anti-dumping
      duties, i.e. duties between 40% and 89%, would discontinue their exports to the
      Community market, whereas the remaining exporters would continue selling on the
      Community market.. The individual price increase for exporters subject to anti-
      dumping duties below the average, accounting for around 70 % of the exports from
      the countries concerned, would even be lower, namely between 3% and 9 %. For a
      product with a useful lifetime of around 5 years, the average yearly charge due to
      anti-dumping duties would thus be around 6 ECU. These relatively minor charges
      would still be partly neutralised by the normal price decreases for the product
      concerned.
(116) Apart from the above-mentioned price increases for imported products, the
      consumer will be able to rely on a growing market supply from all Community
      producers. It can be expected that the market share of all Community producers
      would rise from around 35% in 1996 to around 50% after the imposition of anti-
      dumping duties. These Community producers are likely to keep their prices stable,
      in order to obtain the benefits of higher market shares and sales volumes which, in
      turn, would lead to reduced per-unit- costs and improved financial results.
(117) The European consumers' association (BEUC), although invited to do so, did not
      participate and did not submit comments.
(118) In view of the above, it is considered that the charge to the consumers as a result of
      anti-dumping duties for personal fax machines imported from the countries
      concerned, is moderate compared to the benefits of securing the continuation of
      industrial activities and employment requiring high qualifications in the
      Community.
7.    Information Society
(119) It was argued, that the imposition of anti-dumping duties would affect the
      development of the Information Society.
(120) In this respect, it is explicitly stated in the 1996 Singapore Agreement on
      Information Technology Products that this Agreement does not in any respect
      interfere with the right to impose anti-dumping measures, where applicable.
      Furthermore, it is considered that the small impact on the consumers, as indicated
      above, will not negatively influence the demand for the product concerned.
8.    Impact of anti-dumping measures on competition
(121) The imposition of anti-dumping duties on those exporters for which high dumping
      and injury margins were established, and whose exports would be subject to high
      anti-dumping duties, is likely to lead to a drop in sales volume and market share for
                                                                                          21
 ---pagebreak---        these parties. However, for the majority of exporters concerned the impact of the
       duties will be moderate and it is not expected that these exporters would be
       significantly affected in respect of their competitive situation. Therefore, there will
       be still a considerable number of strong competitors of the Community producers
       on the market.
 9.     Conclusions
 (122) In the light of the above, it is considered that there are no compelling reasons
       against the imposition of anti-dumping duties.
                                 H.       DEFINITIVE DUTY
 1.    Injury margins
(123) For the purpose of determining which level of duty would be necessary to remove
       the injury caused to the Community Industry by the dumped imports, it was
       considered that a price level based on the Community Industry's cost of production
       plus a reasonable profit should be calculated. A profit margin of 10.7 % on
       turnover was regarded as an appropriate minimum. It is also considered that, as to
       its present and future situation, there is and will be a need for intensive and
       increased R&D efforts, in particular in view of further miniaturisation and future
      product generations adapted to new developments in telecommunications
       technology. In addition, the above profit margin is sufficient to provide the
      resources for the investment necessary to produce the new product types and to
      provide a reasonable return on the capital already invested.
(124) Furthermore, it is considered that this profit margin is in line with the profit
      margins found for sales of the exporters concerned on their domestic markets, and
      it is also in line with the profit margins used in past anti-dumping cases for similar
      industries (e.g.: cases concerning small screen CTVs, audio cassettes, video
      cassette tapes, magnetic discs, aluminium electrolytic capacitors, TV camera
      systems: profit rates between 10 and 12% on turnover were used in these cases).
(125) The injury elimination level was calculated by comparing the weighted average
      import price, duly adjusted for differences concerning payment and delivery terms,
      and on the same level of trade, with the non-injurious price of the Community
      Industry, established as indicated above. The amounts resulting from this
      calculation were expressed as a percentage of the weighted average, free-at-
      Community-border value of the imported goods. The injury margins determined on
      that basis are as follows:
    COUNTRY                          COMPANY                      INJURY MARGIN %
JAPAN                  Brother Industries Ltd.                             7.0
                                                                                           22
 ---pagebreak---                      Tottori Sanyo Electric Co. Ltd                      28.1
                     Others                                              34.9
PR CHINA             Highsonic Industrial Ltd., Hong Kong.               59.3
                     Murata Machinery Ltd.                               23.5
                     Others                                              74.2
KOREA                Daewoo Telecom Ltd.                                 61.6
                     Tae II Media Co. Ltd.                               50.8
                     Samsung Electronics Co. Ltd.                        17.4
                     Nixxo Telecom Ltd.                                  54.8
                     Others                                              73.1
SINGAPORE            Matsushita Graphic Communication                     7.7
                     Systems (S) Pte. Ltd.
                     Others                                              39.5
TAIWAN               Kinpo Electronics Inc.                              32.4
                     Sampo Corporation                                   35.8
                     Others                                              36.6
THAILAND             Cal-Comp Electronics (Thailand) Co. Ltd.            40.7
                     Others                                              47.3
MALAYSIA             All (no-co-operation)                               89.9
2.    Definitive duties
(126) The definitive anti-dumping duties are set at the level of the dumping margins
      found, or at the level of the injury margins, if the latter are lower. These duties,
      expressed as a percentage of the free-at-Community-border prices, amount to:
  COUNTRY                         COMPANY                     DEFINITIVE DUTY
JAPAN            Brother Industries Ltd.                                 7.0%
                 Tottori Sanyo Electric Co. Ltd                         28.1%
                                                                                        23-
 ---pagebreak---                Others                                                   34.9%
PR CHINA       Highsonic Industrial Ltd., Hong Kong.                    23.2%
               Murata Machinery Ltd.                                    21.2%
               Others                                                   51.6%
KOREA          Daewoo Telecom Ltd.                                      11.6%
               Tae II Media Co. Ltd.                                     9.2%
               Samsung Electronics Co. Ltd.                             17.4%
               Nixxo Telecom Ltd.                                        7.5%
               Others                                                  25.1%
SINGAPORE      Matsushita Graphic communication Systems                  7.7%
               (S)Pte.Ltd.
               Others                                                   39.5%
TAIWAN         Kinpo Electronics Inc.                                    6.0%
               Sampo Corporation                                        35.8%
               Others                                                   36.6%
THAILAND       Cal-Comp Electronics (Thailand) Co. Ltd.                 10.4%
               Others                                                   22.6%
MALAYSIA       All                                                      89.9%
            I.      COLLECTION OF THE PROVISIONAL DUTIES
(127) In view of the magnitude of the dumping margins found for the exporting
     producers and countries, and in the light of the seriousness of the injury caused to
     the Community industry, it is considered necessary that the amounts secured by
     way of provisional anti-dumping duties for transactions involving the product
     concerned should be definitively collected at the level of the definitive duties.
                                                                                       24
 ---pagebreak--- HAS ADOPTED THIS REGULATION:
                                         Article 1
       A definitive anti-dumping duty is hereby imposed on imports of fax machines
       with a weight of 5 kilograms or less and with dimensions (width x depth x height)
       of the main body measuring 470 mm x 450 mm x 170 mm or less, except for such
       fax machines using ink-jet or laser or LED (Light Emitting Diode) printing
       technology, falling within CN code 8517 21 00 (TARIC code 8517 21 00 10) and
       originating in the People's Republic of China, Japan, Republic of Korea,
       Malaysia, Singapore, Taiwan and Thailand.
       The rate of the definitive anti-dumping duty applicable to the net, free-at-
       Community-border price, before duty, shall be as follows for products originating
       in:
                      Country                  Definitive duty             TARIC
                                                    (%)               Additional code
         The People's Republic of China             51.6                    8900
         Japan                                      34.9                    8900
         Republic of Korea                          25.1                    8900
         Malaysia                                   89.8
         Singapore                                  39.5                    8900
         Taiwan                                     36.6                    8900
         Thailand                                   22.6                    8900
The above rates shall not apply to the products manufactured by the companies listed
below, which shall be subject to the following anti-dumping duty .rates:
     Country                       Company                         Definitive       TARIC
                                                                   duty (%)      additional code
    The              - Murata Machinery (H.K.) Ltd.,                  21.2              8458
    People's           (Hong Kong)
    Republic
    of China         - Highsonic Industrial                           23.2              8459
                   , Ltd.,(Hong Kong)
                                                                                        25
 ---pagebreak---      Japan         - Brother Industries Ltd.                              7.0             8430
                   - Tottori Sanyo Electric Co. Ltd                     28.1              8431
     R. of         - Daewoo Telecom Ltd.                                11.6              8434
     Korea                                                                9.2             8435
                   - Tae 11 Media Co., Ltd.
                  - Samsung Electronics Co. Ltd.                        17.4              8436
                  - Nixxo Telecom Co., Ltd.                              7.5              8437
    Singapore     - Matsushita Graphic Communication                     7.7              8438
                     Systems (S) Pte., Ltd.
     Taiwan       - Kinpo Electronics, Inc.                              6.0              8439
                  - Sampo Corporation                                   35.8              8442
     Thailand     - Cal-Comp Electronics (Thailand) Co.                  10.4             8457
                  Ltd.
3.      Unless otherwise specified, the provisions in force concerning customs duties
         shall apply.
                                            Article 2
        Where necessary the Council will, upon a proposal from the Commission, clarify
             on an individual model by model basis which professional fax machines
             coming within the weight and size criteria as provided for in Article 1 of the
             present Regulation, or being portable fax machines to be used only in
             combination with a mobile telephone set, are not covered by the present
             Regulation.
                                            Article 3
1.      The amounts secured by way of provisional anti-dumping duty under
        Commission Regulation (EC) No 2140/97 shall be definitively collected at the
        rate definitively imposed.
2.      Amounts secured in excess of the definitive rate of anti-dumping duty shall be
        released.
                                            Article 4
This Regulation shall enter into force on the day of its publication in the Official Journal
of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member
States.
Done at Brussels,
                                                             For the Council              26
 ---pagebreak--- Draft Commission Declaration to the minutes of the Council
In the framework of the present investigation, the Commission has come to the
conclusion that there are no compelling reasons which justify the non-imposition of
measures pursuant to Article 21 of the Basic Regulation. This conclusion was based
on the evaluation of a series of complex economic situations and indicators and
reflects the most likely scenario in view of the findings made in the investigation.
The Commission will follow very closely the market development after the
imposition of anti-dumping duties, and should information be obtained, which would
question the validity of the assumptions underlying this conclusion, in particular with
respect to the development of prices for consumers and large traders (telecom
companies), it would initiate an interim review pursuant to Article 11(3) of the Basic
Regulation. In any event, it is envisaged to initiate an interim review within 2 Vi years
after the imposition of definitive anti-dumping measures.
                                                                                          n
 ---pagebreak---  ---pagebreak---                                                                   ISSN 0254-1475
                                                           COM(98) 262 final
                                              DOCUMENTS
EN                                                             02 11 10 15
                                    Catalogue number : CB-CO-98-278-EN-C
                                                             ISBN 92-78-35407-4
Office for Official Publications of the European Communities
L-2985 Luxembourg
                                                                                 U