CELEX: 51997PC0697
Language: en
Date: 1997-12-11
Title: Proposal for a Council Regulation (EC) amending Regulation (EEC) No 3482/92 imposing a definitive anti- dumping duty on imports of certain large electrolytic aluminium capacitors originating in Japan

COMMISSION OF THE EUROPEAN COMMUNITIES
                                                   Brussels, 11.12.1997
                                                   COM(97) 697 final
                                    Proposal for a
                         COUNCIL REGULATION (EC)
amending Regulation (EEC) No 3482/92 imposing a definitive anti-dumping duty on
   imports of certain large electrolytic aluminium capacitors originating in Japan
                          (presented by the Commission)
 ---pagebreak---  ---pagebreak---                           EXPLANATORY MEMORANDUM
1. Attached is a proposal for a Council Regulation amending Regulation (EEC) No
   3482/92 imposing a definitive anti-dumping duty on imports of certain large
   electrolytic alumium capacitors originating in Japan.
2. The proposed act concerns a review investigation pursuant to Article 11 (3) of the
   Basic Anti-dumping Regulation which has led to the conclusion that one Japanese
   producer (Rubycon Corporation) has decreased its dumping margin from 30.1 % to
   4.2 %.
3. The proposed act therefore envisages the reduction of the duty rate for this company to
   4.2 %.
 ---pagebreak---                         COUNCIL REGULATION (EC) No
                                           of
   amending Regulation (EEC) No 3482/92 imposing a definitive anti-dumping duty on
        imports of certain large electrolytic aluminium capacitors originating in Japan
 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 (') and in particular Article 11 (3) thereof,
 Having regard to the proposal submitted by the Commission after consulting the Advisory
 Committee,
                                           WHEREAS:
1
    OJ No L 56, 6. 3 1996, p.l. Regulation as amended by Regulation (EC) No 2331/96 (OJ No L 317,
    6. 12. 1996, p. 1).
 ---pagebreak---                                   A.       PROCEDURE
1.    Measures in force
(1)   In December 1992, the Council, by Regulation (EEC) No 3482/92 (2), imposed a
      definitive anti-dumping duty on imports of certain large aluminium electrolytic
      capacitors (hereinafter "LAECs") originating in Japan. For Rubycon Corporation
      (hereinafter "Rubycon"), the rate of the definitive anti-dumping duty amounted to
      30.1% expressed as a percentage of the net, free at Community frontier price,
      before duty. The investigation that led to the imposition of these measures is
      hereinafter referred to as "the initial investigation".
2.    Request for a review investigation
(2)   In September 1996, Rubycon lodged a request for an interim review pursuant to
      Article 11 (3) of Council Regulation (EC) No 384/96 (hereinafter the "Basic
      Regulation"). Rubycon alleged that the continued imposition of the anti-dumping
      duty would no longer be necessary to offset the dumping as established in the
      initial investigation.
   OJNoL353. 3. 12. 1992, p. 1.
 ---pagebreak--- 3.       Review investigation
(3)      The Commission considered that Rubycon had submitted sufficient prima facie
         evidence to justify an interim review. Consequently, the Commission announced -
         on 17 December 1996 - by a notice published in the Official Journal of the
         European Communities (3) the initiation of a review investigation pursuant to
         Article 11 (3) of the Basic Regulation and commenced an investigation.
         Since no other interested party had submitted sufficient evidence justifying the
         initiation of a review investigation, the investigation was limited to Rubycon. The
         investigation concerned the aspects of dumping only.
 (4)     The Commission officially advised Rubycon, the representatives of the exporting
         country, two unrelated importers and the complainant in the initial investigation
         (hereinafter "FARAD") of the initiation of the review. Interested parties were
         given the opportunity to make their views known in writing and to request a
         hearing. All parties who so requested were granted a hearing.
 (5)     The investigation covered the period of 1 October 1995 to 30 September 1996
         (hereinafter referred to as "the investigation period"). For the purpose of this
         investigation, the geographical scope of the investigation was the Community as
         composed at the time of initiation of this review.
3
     OJ No C 381, 17. 12. 1996, p. 7.
 ---pagebreak--- (6) The Commission sent questionnaires to all parties known to be concerned and
    received repliesfromRubycon, its related importer in the Community (hereinafter
    Rubycon UK) and two unrelated importers in the Community.
(7) The Commission sought and verified all the information it considered necessary
    and carried out investigations at the premises of the following companies:
    (a) producer/exporter in Japan
    - Rubycon Corporation, Tokyo and Ina.
    (b) importer related to the producer/exporter
    - Rubycon UK, South Ruislip, United Kingdom.
    (c) importer not related to the producer/exporter
    - Codico Gesellschaft m.b.H. &Co KG, Vienna, Austria (hereinafter Codico).
 ---pagebreak---     During the on-spot verification at the premises of Codico, it became apparent that
    the company had provided misleading information. In particular, the company had
    not reported a significant number of its import transactions. This and some other
    deficiencies did cast a serious overall doubt on the reliability of the information
    provided by the company.      Consequently, the Commission decided to base its
    findings for this company on facts available in accordance with Article 18 of the
    Basic Regulation and informed the company accordingly.
    An investigation at the premises of the other importer were not deemed necessary
    due to the relatively insignificant importance of its total import transactions
    relating to LAECs produced by Rubycon.
(8) Owing to the volume and the complexity of the data gathered and examined, the
    investigation exceeded the normal time period of 12 months foreseen in Article 11
    (5) of the Basic Regulation.
(9) Parties were informed in writing of the essential facts and considerations on the
    basis of which it was intended to amend Regulation (EEC) No 3482/92.           The
    comments presented by the parties were considered and, where appropriate, the
    findings were modified to take account of them.
 ---pagebreak---                               B.       PRODUCT CONCERNED
(10)   The product subject to the definitive anti-dumping duty referred to in recital 1 is
       large electrical capacitors, aluminium electrolytic, with a CV product (capacitance
       multiplied by rated voltage) between 18 000 and 310 000 pic (micro-coulombs), at
       a voltage of 160 V or more and with a diameter of 19 mm or more and at a length
       of 20 mm or more. The product is classifiable under CN code ex 8532 22 00.
       For the purpose of this review investigation which concerned only one of the
       known Japanese producers/exporters and which was limited to aspects of
       dumping, it was not considered appropriate to extend the like product definition as
       it was done - due to technical developments of the product concerned - in the
       investigation relating to imports of LAECs originating in the Republic of Korea
       and Taiwan (4).
4
   Régulation (EC) No 1384/94, OJ NG L 152, 18. 6. 1994, p. 1, confirming Regulation (EC) No
   371/94, Oi No L 48, 19. 2. 1994, p. 10.
                                                                                           6
 ---pagebreak---                                    C.    DUMPING
1.   Preliminary remark
(11) In the initial investigation the dumping margin was calculated on the basis of the
     best selling models which accounted for more than 70% of the exporter's total
     transactions to the Community. Consequently, the calculation in this investigation
     was also based on best selling models accounting for more than 70% of the export
     volume.
     In their comments to the respective disclosure letters, Rubycon and FARAD
     claimed that it would have been more appropriate to use a different set of
     transactions. In particular, Rubycon claimed that - instead of relying on quantities -
     70% of the export turnover should have been used, whereas FARAD proposed to
     use a completely different set of transactions in order to avoid the risk that the
     exporter only increases its export prices for certain best-selling models.
     The Council noted, however, that the Commission was neither provided with, nor
     did it otherwise receive information indicating a "change of circumstances" in the
     sense of Article 11 (9) of the Basic Regulation which would suggest that a change
     in methodology for the determination of the export prices is warranted. Therefore,
     it was considered appropriate - as in the initial investigation - to rely on the models
     accounting for 70% of Rubycon's export volume.
 ---pagebreak--- 2.   Normal Value
(12) As regards the determination of the normal value, two types of best selling models
     have been distinguished.
     For models which were sold in sufficient quantities and in the ordinary course of
     trade during the investigation period on the Japanese domestic market, normal
     values were based on the (profitable) domestic sales prices in accordance with
     Article 2 (2) and (4) of the Basic Regulation.
(13) For all other models, for which no or insufficient domestic sales in the ordinary
     course of trade were made during the investigation period, normal values were
     constructed in accordance with Article 2 (3) of the Basic Regulation. In this
     respect, normal values were calculated by adding up cost of manufacturing,
     domestic SGA expenses and a reasonable amount of profit, calculated on the basis
     of the weighted average profit margin of Rubycon achieved on its profitable
     domestic sales of LAECs. The cost of manufacturing reported by Rubycon was
     corrected since it appeared that the company had not provided the actual purchase
     price for a certain part used in the production of LAECs which was subject to
     outside processing.
 ---pagebreak--- 3.   Export prices
(14) As regards the determination of the export price, a distinction was made between
     sales to related and unrelated parties in the Community.
     In accordance with Article 2 (8) of the Basic Regulation, export prices of sales to
     unrelated companies were determined on the basis of prices actually paid for the
     products sold for export to the Community.
(15) In the case of export sales to Rubycon UK, the related importer, export prices
     were constructed on the basis of resale prices to the first independent purchaser,
     duly adjusted to take account of all actual costs incurred between importation and
     resale. In addition, an adjustment was made for a profit margin of 5% which was
     considered a reasonable percentage and which is the same as that used in the initial
     investigation in conformity with Article 11 (9) of the Basic Regulation. As for the
     profit margin, it was noted that data received from the two importers that made
     themselves known in this investigation could not be used since one is a non-
     cooperating party whereas the other does not resell the product concerned.
 ---pagebreak--- (16) Anti-dumping duties paid upon importation were deducted as a cost in accordance
     with Article 2 (9) of the Basic Regulation when constructing the ex works export
     prices since no conclusive evidence pursuant to Article 11 (10) of the Basic
     Regulation was provided in the course of the investigation showing that the anti-
     dumping duties are duly reflected in the subsequent selling prices of the customers
     of Rubycon UK in the Community.
(17) Finally, it was noted that part of Rubycon's products were sold to customers in the
     Community producing under the regime of inward processing relief. These export
     transactions under inward processing relief were taken into account in the
     calculation of Rubycon's export price. Rubycon contested this approach.
     In this respect, it was considered that the exporter does not necessarily know for
     all transactions whether their customers release the models under inward
     processing relief into free circulation at a later stage or whether finished goods
     containing Rubycon's LAECs are reimported into the Community at a later stage.
                                                                                       10
 ---pagebreak---       In addition, sales of LAECs to companies using the inward processing relief may
      well contribute to the injury caused to Community producers as they reduce
       outlets which could otherwise be available to them. This is not contradicted by the
       requirements of Article 552 of Commission Regulation (EEC) No 2454/93 (5)
       containing provisions operating the inward processing authorisation according to
       the Community Customs Code. In particular, it was found that the "economic
       conditions" to be fulfilled when granting the authorisation to operate under in-
       ward-processing relief can - in a significant number of instances - be satisfied
       without (in depth) verification of whether comparable goods are actually produced
       in the Community. In this respect it was also noted that Rubycon had - despite a
       request from the Commission - not provided sufficient information showing why
       Rubycon or its customers had received the respective authorisation. Consequently,
       it cannot be excluded that in the present case Community producers were deprived
       of sales opportunities otherwise available to them.
      Finally, it was noted that the inclusion of export transactions relating to inward
       processing is in line with the Basic Regulation which provides in its Article 1 (2)
      that a product is considered as being dumped "if its export price to the
      Community" (as opposed to its release into free circulation in the Community,
      emphasis added) is less than its normal value.
      Consequently, the Council concluded that the inclusion of export transactions
      relating to inward processing relief is justified for this investigation.
5 OJ No L 253, 11. 10. 1993, p. 1, as last amended by Regulation (EC) No 1427/97, OJ No L 196, 24.
  7. 1997, p. 31.
                                                                                              11
 ---pagebreak--- 4.   Comparison
(18) Normal values were compared with export prices at an ex-factory level. As far as
     differences in conditions and terms of sale are concerned, allowances were granted
     in accordance with Article 2 (10) of the Basic Regulation for delivery and payment
     terms.
(19) Claims for adjustments for salesmen's salaries and advertising costs could not be
     granted since it was not demonstrated that price comparability of normal value and
     export price was affected.
5.   Dumping Margin
(20) The comparison of weighted average normal values with weighted average export
     prices showed the existence of dumping. Expressed as a percentage of the free-at-
     Community-frontier price, the weighted average dumping margin amounted to:
     Rubycon                                                             4.2%
                                                                                     12
 ---pagebreak---                            D.      NEW LEVEL OF DUTY
(21 )  The dumping margin established in the present review is lower than the dumping
      margin found in the initial investigation, which formed the basis of the duty rate.
      Since no clear indications were received or found showing that dumping would
      recur at a higher level once the review has been finalised, the Council concludes
      that Regulation (EEC) No 3482/92 should be amended in respect of Rubycon
      Corporation, Ina Nagano. The new duty rates amounts to 4.2 %.
(22)  This review does not affect the date on which Regulation (EEC) No 3482/92
      expires, pursuant to Article 11 (2) of the Basic Regulation.
HAS ADOPTED THIS REGULATION:
                                                                                       13
 ---pagebreak---                                         Article 1
Article 1 (2) of Regulation (EEC) No 3482/02 is hereby amended as follows :
Thefigurein the rate of duty column of "30.1 %" relating to Rubycon Corporation, Ina
   Nagano, shall be replaced by "4.2 %".
                                        Article 2
This Regulation shall enter into force on the day following that of its publication in the
OfficialJournal 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
                                                                           The President
                                                                                         14
 ---pagebreak---                                                                    ISSN 0254-1475
                                                            COM(97) 697 final
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                                                             ISBN 92-78-29171-4
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