CELEX: 51991PC0419
Language: en
Date: 1991-10-28
Title: Proposal for a COUNCIL REGULATION (EEC) imposing a definitive anti-dumping duty on imports of gas-fuelled, non-refiliable pocket flint lighters originating in Japan, the People' s Republic of China, the Republic of Korea and Thailand and definitively collecting the provisional anti-dumping duty

COMVIISSION OF THE EUROFEAN COMVIUNITIES
                                         C0M(91) 419 final
                                         Brussels, 28 October 1991
                          Proposal for a
                     COUNCIL REGULATION (EEfn
           Imposing a definitive ant I-dumping duty on
         Imports of gas fuelled, non refI liable pocket
              flint lighters originating In Japan,
                 the People's Republic of China,
               the Republic of Korea and Thailand
                and definitively collecting the
                  provisional ant I-dumping duty
                  (presented by the Commission)
 ---pagebreak---                                     i-
               EXPLANATORY           M E M O R A N DUM
(1) Commission Regulation (EEC)   No 1386/91<1) imposed a provisional
    anti-dumping duty on imports of gas fuelled, non refiliable pocket
    flint lighters originating    in Japan, the People's Republic of
    China, the Republic of Korea and Thailand.
(2) Council Regulation (EEC) No 2832/91<2> extended this duty for a
    period of two months. The provisional duty is therefore due to
    expire on 29 November 1991.
(3) The Japanese, Chinese and Thai exporters together with a number of
     importers, requested and were granted hearings and made their
    views known in writing. The Commission considered all the views
    put to it before drawing its final conclusions.
(4) The Thai producer and exporter Thai Merry Co. Ltd., provided fresh
    evidence concerning the depreciation amount used by the Commission
    for the preliminary determination of normal value. In view of this
    evidence a new dumping calculation concerning Thai Merry Co. Ltd
    has been done. Consequently, the dumping margin as a percentage of
    CIF value, with regard to this company, has been modified to
    14.1%.
    Given the fact that Thailand has been used as the analogue country
    for calculating normal value for China, the dumping margin for
    China also required to be modified and is now 16.9%.
(5)  In the    light of the above, the Commission confirmed        its
    provisional conclusions to the effect that lighters originating in
    Japan, the People's Republic of China, the Republic of Korea and
    Thailand were being dumped in the Community and were causing
    material injury to Community production, and concluded that it is
     in the Community's interest to take protective measures in the
    form of a definitive anti-dumping duty and to collect the
    provisional duty definitively at the duty rate definively imposed.
(1) O.J. No L 133, 28.05.1991, p. 20
(2) O.J. No L 272, 28.09.1991, p. 1
 ---pagebreak---                                  - 2 -
(6) One of the two Thai exporters, Thai Merry Co. Ltd, has offered an
    undertaking which is considered acceptable. The undertaking will
    increase the price of the products In question by a level
    sufficient to remove the dumping established by the Commission.
    Following consultations within the Advisory Committee one Member
    State raised objections with regard to the acceptance of the
    undertaking. According to Articles 9 para. 1 and 10 para. 1 of
    Regulation (EEC) No 2423/88, the Commission submitted to the
    Council a report on the results of the consul tat ion together with
    a proposal    that the undertaking be accepted. The decision
    accepting the undertaking shall be adopted if, within one month,
    the Council has not decided otherwise.
(7) In accordance with Article 12 of Council Regulation (EEC) No
    2423/88 the Commission therefore proposes that the Council impose
    a definitive ant I-dumping duty on imports of gas fuelled, non
    refiliable pocket flint     lighters ©rtglnatfng in Japan, the
    People's Republic of China, the Republic of Korea and Thailand
    (with the exception of Thai Merry Co. ltd.) and decide to collect
    the provisional anti-dumping duty to the extent of the amount of
    the definitive duty imposed.
(8) The Commission intends, with a reserve of the results of the
    procedure mentioned under point (5) above, to publish the decision
    accepting the undertaking from the Thai exporter Thai Merry Co.
    Ltd. at the same time as the Council Regulation.
 ---pagebreak---                                     -?-
                              Proposal for a
                    C O U N C    IL    R E G U L A T I O N
                            ( E EC ) N *          OF
                imposing a definitive ant I-dumping duty on
              Imports of gas fuelled, non refI liable pocket
                   flint lighters originating In Japan,
                       the People's Republic of China,
                     the Republic of Korea and Thailand
                       and definitively collecting the
                        provisional antI-dumping duty
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having   regard   to    the   Treaty  establishing   the   European  Economic
Community,
Having regard to Council Regulation (EEC) No 2423/88 of 11 July 1988 on
protection against dumped or subsidized         imports from countries not
members of    the European      Economic  Commun!tyC), and      in particular
Article 12 thereof,
Having regard to the proposal         from the Commission submitted after
consultation within the Advisory Committee as provided for under the
above Régulât ion,
(1) O.J. No L 209, 02.08.1988, p. 1
 ---pagebreak---                                     ~h~
Whereas:
                 A. P R O V I S I O N A L   MEASURES
(1)  The   Commission    by Regulation  (EEC)  No   1386/91 (2 >,  Imposed   a
     provisional anti-dumping duty on Imports into the Community of gas
     fuelled non-refiIlable pocket flint lighters (hereinafter referred
     to as    lighters) originating  In Japan, the People's Republic of
     China, the Republic of Korea and Thailand and falling within CN
     code ex 9613 10 00 (TARIC code : 9613 ta Otï *10). The Council by
     Regulation    (EEC) No 2832/91(3) extended this duty for a period
     not exceeding two months.
                 B. S U B S E Q U E N T   PROC ED URE
(2)  Following the imposition of the provisional ant I-dumping duty, the
      interested parties who so requested were granted an opportunity to
     be heard by the Commission. They also made written submissions
     mak i ng known their vIews on t he fInd ings.
(3)  Parties    were  informed  in writing  of   the essential     facts   and
     considerations on the basis of which it was intended to recommend
     the Imposition of definitive duties and the definitive collection
     of amounts secured by way of a provisional d&ty. They were also
     granted a period within which to make representations subsequent
     to the disclosure.
(4)  The   oral   and  written comments  submitted   by  the    parties  were
     considered and, where appropriate, the Commission         findings were
     modified to take account of them.
(2) O.J. No L 133, 28.05.1991, p. 20
(3) O.J. No L 272, 28.09.1991, p. 1
 ---pagebreak---                           C.   PRODUCT
(5) A number of exporters and one importer repeated the arguments put
    forward  in the administrative procedure before the provisional
    measures that the Community producers' lighters and the imported
    lighters are not like products, since certain of the Community
    models produce more ignitions.
    The Council, however, confirms the Commission conclusions on this
    point, outlined in recital (13) of Regulation (EEC) No 1386/91, on
    which no new evidence was submitted.
    The Council, therefore, confirms that the lighters produced and
    sold by the Community manufacturers, form one single category of
    product and constitute a product alike in all respects to the
    product imported from Japan, the People's Republic of China, the
    Republic of Korea and Thailand within the meaning of Article 2(12)
    of Regulation (EEC) No 2423/88.
                          D.   DUMPING
(6) The Thai producer and exporter Thai Merry Co. Ltd., provided fresh
    evidence concerning the depreciation amount used by the Commission
    for the preliminary determination of normal value. In view of this
    evidence a new dumping calculation concerning Thai Merry Co. Ltd
    has been done. Consequently, the dumping margin as a percentage of
    cif value, with regard to this company, has been modified to
    14.14%.
(7) Given the fact that Thailand has been used as the analogue country
    for calculating normal value for China, the dumping margin for the
    People's Republic of China aiso required to be modified and is now
    16.94%.
 ---pagebreak---                                       -6-
(8)  A  Chinese   exporter, Gladstrong         Investments   Ltd. which     did  not
     export to the Community during the reference period requested to
     be excluded from the application of the duty. Since the Commission
     was not in a position to make a determination with regard to this
     exporter,   this   request    could    not   be  accepted   by   the Council.
     Nevertheless, the Council notes that the             Commission    is ready to
     initiate without delay a review whenever the exporting company can
     show   to  the Commission,      and    supply   to  that   effect    sufficient
     evidence that    It did not export during the Investigation period,
     it  started    exporting    or   has    the   intention   to   export   to  the
     Community    after   the   investigation      period   and   that   it   is not
     related to or associated with any of the companies subject to the
     present Investigation for which dumping was found.
(9)  With regard to Dong Guan TIan Bao Lighter Factory, another Chinese
     exporter, who submitted a reply to the questionnaire, which was,
     in any case, incomplete, more than six months after the deadline
     specified   in the questionnaire sent by the Commission services,
     It   is considered    that    the  dumping     margin   established    for  the
     People's Republic of China should apply.
(10) Gao Yao Co. submitted        that    the ant I-dumping duties       imposed  on
     Imports made by Gao Yao Co. should be cancelled and the normal
     value applicable to Gao Yao Co. calculated pursuant                 to Article
     2(6) and not Article 2(5) of Regulation (EEC) No 2423/88.
     It was    argued   that  Article      2(5) should     not  be   applied   since
     imports to the EEC were not made from the People's Republic of
     China but from Hong Kong and that Gao Yao Co. (Hong Kong) should
     be considered as an exporter and not           Gao Yao Co. (China).
 ---pagebreak---                                    -?-
     The Council, however, confirms that    in this case the products
     concerned were merely transhipped through Hong Kong and therefore
     the normal value should be determined in accordance with Article
     2(5) of the basic Regulation.
(11) The exporters from Thailand argued that the profit margin of 8%,
     added to the cost of production for the determination of the
     normal value, was too high. All domestic sales of Thai Merry Co.
     Ltd, were found to have been made at a loss, the domestic sales of
     Poli top Co. Ltd were not considered representative and there were
     no other producers or exporters in Thailand in the same business
     sector. Therefore, the Commission established a profit margin of
     8% on the basis of the profit realised by other exporters from
     those countries which cooperated in this procedure.
(12) In the light of the above, the Council confirms the conclusions
     set out in recitals 19 to 29 of Regulation (EEC) No 1386/91 taking
     into account the corrections mentioned above with regard to Thai
     Merry Co. Ltd and the consequent impact on the margin established
     for the People's Republic of China.
     The definitive weighted average margins expressed as a percentage
     of CIF value for each of the exporters concerned are as follows:
        Japan
             Tokai Corporation, Yokohama                 96,56%
        People's Republic of China                       16.94%
 ---pagebreak---                                        - e-
         RepubIi c of Korea
              SamJi Industrial, Inchon                         31.58%
         Thai land
             Politop Co. Ltd, Bangkok                           5.87%
             Thai Merry Co. Ltd, Samutsakorn                   14.14%
       E. I N J U R Y      AND    CAUSATION            OF     INJURY
(13) A number of exporters raised again the Issue of price comparison
     of lighters at the resale level of the first Independent buyer in
     the   Community.     It was   argued   that  certain   imported   lighters
     contained     less gas, produced     less flame and,    therefore, had a
     different appeal to customers than those produced by the Community
     producers.
     Recital 34 of Regulation (EEC) Nr 1386/91 clearly           Indicates that
     the Commission      excluded   from the price undercutting exercise a
     number of     lighters by taking     into account only    lighters with a
     similar     gas   content.   The   Council,   therefore,     confirms  the
     Commission findings with regard to price undercutting.
(14) No new evidence of concerning        injury was presented by any party.
     Consequently, the Council confirms the Commission conclusions on
      Injury as they are set out In Regulation (EEC) No 1396/91.
(15) In recitals 44 to 50 of Regulation (EEC) No 1386/91 the Commission
     concluded     that  the  cumulated    dumped   Imports  from   Japan,  the
     People's Republic of China, the Republic of Korea and Thailand had
     caused material     Injury to the Community     industry. The Commission
 ---pagebreak---                                        -9
     found   that   the rapid    Increase of Japanese, Chinese, Korean and
     Thai   low-priced lighters coincided with an equally rapid decrease
     of production, capacity utilisation, sales volume, market share,
     prices, profits and employment of the Community industry.
     No   new  facts or    new   arguments    concerning     these   findings were
     submitted    to the Commission after        the publication of Regulation
     (EEC) No 1386/91. The Council therefore confirms the conclusions
     of   the  Commission     as  set   out   in   recitals   44   to  50   of  that
     Regulation.
                      F. I N J U R Y       THRESHOLD
(16) With regard to the calculation to determine the injury elimination
      level,   the    Commission     considered      it   appropriate     that   the
     difference between actual selling prices of the exporters                 and a
     price which would       allow   the Community      industry   to achieve    15%
     profit should be eliminated.
     This 15% profit margin has been contested by the Japanese producer
     and exporter as being too high.
(17) According to the Community producers, a 15% profit margin                is the
     minimum   necessary    to render     possible    additional    investments   in
     manufacturing     facilities    and   research    and  development,     without
     which the deterioration of the situation of the Industry would be
     bound to be exarcebated and the injury caused by dumping would not
     be   removed.
     Consideration was given to the fact that the profit achieved by
     the major world producers historically ranged between 12 and 20%.
 ---pagebreak---                                       -10
     In  the   light  of   the above,    the Council    confirms    Commission
     findings with regard to the injury threshold as established in
     recital 59 of Regulation (EEC) No 1386/91.
                  G. C O M M U N I T Y       INTEREST
(18) The Japanese    exporter   suggested    that  there  was a danger of
     Japanese imports being replaced by low-priced imports from other
     non-Community    countries   either    from  those   involved    in  this
     procedure   or others    if a high     anti-dumping  duty   was imposed
     against Japan.
(19) The Council   is not persuaded that the duties proposed would lead
     to Japanese    imports being replaced by low priced         imports  from
     other third countries and considers that even if it were to happen
     it would not be contrary       to the Community's     interest. As the
     Council has already stated in previous Regulations, anti-dumping
     duties   should   neither   have   a   protectionist   effect    for the
     Community industry nor cause any undue handicap for the exporters.
     They are designed to re-establish fair and open market conditions
     by protecting the Community       industry against an unfair      trading
     practice. If some exporters' position on the market suffers after
     the  imposition   of anti-dumping     duties, then   this   is only the
     consequence of their inability to face a fair competitive market
     situât ion.
(20) The Council confirms the Commission findings set out in Section G.
     of Regulation (EEC) No 1386/91 and considers that          it is in the
     Community   interest  to impose anti-dumping measures to eliminate
     the injurious effects of dumped imports originating in Japan, the
     People's Republic of China, the Republic of Korea and Thailand.
 ---pagebreak---                                       - u
                                  H. D U T Y
(21) On   the basis of     calculations    of   dumping   and   Injury  threshold
     described    in   Regulation   (EEC) Nr     1386/91   and   the  submissions
     subsequently received, the Council concludes that duties should be
      Imposed at the level of the actual dumping found for the People's
     Republic   of   China   and  Thailand    (firms Thai    Merry   Co. Ltd   and
     Poli top  Co.    Ltd)   and  for  Japan     (Tokai  Corporation)    and   the
     Republic of Korea (SamJI       Industrial) on the basis of the injury
     threshold established.
     The duties, therefore, shall be:
     - Tokai Corporation, Japan                                   35.7%
     - SamJI Industrial, Republic of Korea                        22.7%
     - Gao Yao Co., People's Republic of China                    16.9%
     - Thai Merry Co. Ltd, Thailand                               14.1%
     - Politop Co. Ltd, Thailand                                   5.8%
(22) The Council confirms, for the reasons stated by the Commission in
     recital. 60 of Regulation (EEC) No 1386/91, that the highest duty
     established for each country should be applied to firms which did
     not respond to the Commission questionnaire or otherwise did not
     make themselves known to the Commission.
                           I. U N D E R T A K I N G
(23) One of the two Thai exporters, Thai Merry Co. Ltd, has offered an
     undertaking which      Is considered acceptable. The undertaking will
     increase   the    price   of  the  products     in  question    by  a   level
     sufficient to remove the dumping established by the Commission.
 ---pagebreak---                                       •~n~
     Following   consultations     during   which  one   Member   State     raised
     objections   to   this   solution,   the  undertaking    was   accepted    by
     Commission Decision No ..../91.
                   J. C O L L E C T I O N      OF T H E
                     PROVISIONAL                DUTIES
(24) The Thai   exporter, Thai      Merry  Co. Ltd,   requested    that    lighter
      Imports  already    dispatched    before   the  date   that    provisional
     measures came into effect and customs cleared after that date be
     released free of collection of provisional duties and consequently
     that the provisional duty should not be definitively collected in
     such cases.
(25) In accordance with the provisions of Articles 2(1) and 11(1) of
     Regulation   (EEC) No 2423/88, anti-dumping duties are applied to
     the   products   concerned    at   the  moment   they   enter     Into   free
     circulation In the Community. Contrary to Council Regulation (EEC)
     No 288/82 of 5 February 1982 on common rules for             imports^1) to
     which the exporter refers, the anti-dumping Regulation, which is
     applicable    to   products    imported   under   conditions     of    unfair
     competition, does not provide for any exceptions to this rule.
     Moreover,    it   should   be    recalled   that   the   Commission      made
     considerable efforts to keep the parties concerned            informed and
     thus the importers cannot reasonably claim to have been unaware of
     the proceedings or of the stage to which the            Investigation had
     progressed    during   the   period   between   the   initiation     of   the
     proceedings and the imposition of the provisional duty.
(1) O.J. No L 35, 09.02.1982. p. 1
 ---pagebreak---                                    - • / ; -
(26) Therefore, in view of the size of the established dumping margins
     and of the serious nature of the Injury caused to the Community
     industry,   the Council   considers      It necessary    that  the  amounts
     secured   by way of   the provisional       anti-dumping   duty  should  be
     collected    definitively  to   the     extent   of   the  amount   of  the
     definitive duty imposed,
HAS ADOPTED             THIS      REGULATION
                                 Article 1
    A definitive anti-dumping duty is hereby Imposed on Imports of gas
    fuelled, non refiliable pocket        flint    lighters falling within CN
    code ex 9613 10 00 (Taric code 9613 10 00 * 10) originating               in
    Japan, the People's Republic of China, the Republic of Korea and
    Thai land.
    The  rate of    the duty, applicable       to the net    free-at-Commun I ty-
    frontler price before duty, is set out as follows:
    (a) 35,7% for the products originating in Japan,
    (b) 16.9% for the products originating In the People's Republic of
        China,
    (c) 22,7% for the products originating in the Republic of Korea,
    (d) 14.1%    for   the  products      originating     in   Thailand   (Taric
        additional code 8543) with the exception of           imports which are
        produced and sold for export to the Community by Polltop Co.
        Ltd, Bangkok where the rate shall           be 5,8% (Taric additional
        code 8544).
 ---pagebreak---                                         Oi~
3.   The duty    referred  to   in paragraph   2(d) shall   not   apply   to gas
     fuelled   non   refiliable   pocket   flint   lighters  exported    to  the
     Community by Thai Merry Co. Ltd (Taric additional code 8542).
4.   The provisions in force concerning customs duties ®hal;l lapply.
                                    Article 2
The amounts secured by way of the provisional anti-dumping duty imposed
under Regulation (EEC) No 1386/91 shall be adefinitlvelw collected at
the duty rate definitively imposed.
                                    Article 3
This Regulation shall enter into force on the day fol lowing that of its
pub iI cat Ion in t he Official JournaI of the ^European Commun It les.
This    Regulation   shall   be   binding   in   its tentir©%     and   directly
applI cab le in all Member States.
Done at Brussels,                                ?Forttbe iCounci
 ---pagebreak---  ---pagebreak---                                                                       ISSN 0254-1475
                                                               COM(91) 419 final
                                                      DOCUMENTS
EN                                                                          11 02
                                 Catalogue number : CB-CO-91-480-EN-C
                                                             ISBN 92-77-76905-X
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