CELEX: 51983PC0509
Language: en
Date: 1983-07-29
Title: Proposal for a COUNCIL REGULATION (EEC) imposing a definitive anti-dumping duty on imports of barium chloride originating in the People's Republic of China and in the German Democratic Republic (submitted to the Council by the Commission)

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DOCUMENTS "COM"
COM (83) 509
Vol. 1983/0196
 ---pagebreak--- Disclaimer
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In accordance with Council Regulation (EEC, Euratom) No 354/83 of 1 February 1983
concerning the opening to the public of the historical archives of the European Economic
Community and the European Atomic Energy Community (OJ L 43, 15.2.1983, p. 1), as
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file have been declassified in conformity with Article 5 of the aforementioned regulation.
In Übereinstimmung mit der Verordnung (EWG, Euratom) Nr. 354/83 des Rates vom 1.
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 ---pagebreak--- COMMISSION OF THE EUROPEAN COMMUNITIES
                                                       COM(83) 509 f i n a l
                                                       Brussels, 29 July 1983
                                            Proposal for a
                                       cquncil_ regulation_ ( eec)
      imposing a d e f i n i t i v e anti-dumping duty on imports of barium
     ch l o r id e o r i g i n a t i n g in the People's Republic of China and in
                                the German Democratic Republic
                   (submitted to the Council by the Commission)
  COM(83) 509 final
 ---pagebreak---                                          EXPLANATORY MEMORANDUM
1.      In June 1982 the Commission received a complaint lodged by the Conseil
Européen            des Fédérations de l ' I n d u s t r i e Chimique   (CEFIC) on behalf of
 the French producer                           who accounts for the bulk of the Community
production of barium chloride. The complaint alleged dumping of barium chloride
o r i g i n a t i n g in the People's Republic of China and in the German Democratic
Republic and material injury resulting therefrom.                       These al leg at ions were
supported by evidence s uffici en t to j u s t i f y the Commission i n i t i a t i n g proceedings
and a no ti ce announcing the opening of the anti-dumping proceedings was published
on 10 August 1982 (0J No C 207).
2.       The Commission's preliminary investigation .                  found             ' margins of dumping
 exceeding 75% and resulting                   material injury.       Provisional anti-dumping duties
 were imposed by Commission Regulation (EEC) No 985/83 (0J No 110 of 27.4.83)
the amount of which is equal to the amount by which the price per tonne net ,
 free-at-Community-frontier, before duty, is less than 319 ECU. The v a l idity
of these du ti es expires on 27 August 1983.
                                                  shown
 3.     In view of the dras tic increase^in the import                    s t a t i s t i c s from
  China          during the f i r s t 3 months of 1983 and the eventual e f f e c ts with regard to
 the injury suffered by the Community producer                     concerned, i t was considered
 ap prop riate to change the investigation period from August 1981/July 1982 to the
peri od January 1982 to March 1983.                  Onthe basis of the updated information
obtained by the Commission during the subsequent investigation the following
 conclusions are reached:
a)      With regard to dumping:             the dumping margins for the product concerned
        o r i g i n a t i n g both in the People's Republic of China and in the German
         Democratic Republic s t i l l exceed 75%;
b)       with regard to injury:
         1.      On the basis of the figures admitted by the importers known to the
         Commission the imports of c r y s t a l l i s e d barium chloride in the EEC
        o r i g i n a t i n g in China increased by 42% between 1980 and 1982.                   This increase
        must be seen in re lation to a decrease of 38% in the consumption of th i s
        product in t h i s form in the EEC between 1980 and 1982. In addition,
         s u b s t a n t i a l quantities, which are being held under the t r a n s i t regime, are
         considered as constituting a threat of injury.
          2. Imports of the product concerned or iginat ing in the DDR increased from
          0 tonnes in 1980 to 253 tonnes in 1981 and decreased s l i g h t l y in 1982. Although
 ---pagebreak---                                                 - 2 -
     only very l i t t l e imports have taken place in 1983, injury is s t i l l
     t hreat ened given the export capacity of the exporter in the DDR and the
      l i kel i hood that he will increase his exports to the Community, i f an a n t i ­
     dumping duty would be imposed only on the imports o r i gi nat i ng in China.
      3. The pri ce undercutting of the Chinese and the DDR product was 7 to
      17% and 13% r espect i vel y.
      4. The consequent impact on the Community producer concerned is shown as
      follows:
            the production of c r y s t a l l i se d barium chloride avai l abl e for the market
             dropped by 6% between 1980 and 1981 and by 52% between 1981 and 1982;
             the capacity u t i l i s a t i o n dropped accordingly;
       -     the sales of the product in t h i s form to customers in the EEC dropped by
             33% between 1980 and 1981 and remained f a i r l y s t abl e in 1982;
       -     the market share has s l i g h t l y increased from 30% to 33% whereas the market
             share of the Chinese product increased from 36% to 48% and the market
              share of the DDR product remained stiible at 8%;
        -     the losses showed a furt her s u bs t ant i al i ncr ease.
4.      In view of the p a r t i c u l a r l y serious losses which the Community producer concerned
faces in the production and sale of the product concerned and in order to avoid the
cl osure of the p l a nt , which would make the Community, to a s i g n i f i ca n t ext ent , depen­
dent upon ext ernal s u p p l i e r i t is in the Community's i n t e r e s t t hat act ion be taken. r
5. Considering that no s at i sf act or y pri ce undertakings have been of f er ed by the
export ers concerned, the prot ect i on of the Community's i n t e r e s t s c a l l s for the
imposition of d e f i n i t i v e anti-dumping dut i es the amount of which shal l be equal
to the amount by which the price per tonne n e t , free-at -Communi t y-front i er, before
duty, is less than 323 ECU. This amount has been cal cul at ed on the basi s of the
data r e l at i ng to the modified               reference peri od.  Furthermore, i t is appropri at e
t h a t the provisional duty be col l ect ed to a maximum of 319 ECU in view of the
d r a s t i c increase of the imports of the dumped product or i g i n at i n g in China since
t he opening of the proceedings.
 ---pagebreak---                Proposal for a COUNCIL REGULATION (EEC)
      imposing a d e f i n iti v e anti-dumping duty on imports of barium
      chloride originating in the People's Republic of China and in
      the German Democratic Republic
 THE COUNCIL OF THE EUROPEAN COMMUNITIES,
 Having regard to the Treaty establishing the European Economic Community,
 Having regard to Council Regulation (EEC) No 3017/79 of 20 December 1979
 on p r o te c ti o n against dumped or subsidized imports from countries not
 members of the European Community(1) , as amended by Regulation (EEC) No
 1580/82(2), and in p a r ticular Article 12 thereof,
 Having regard to the proposal submitted by the Commission a f t e r consultation
 within the Advisory Committee as provided for under the above Regulation,
 Whereas:
 A.   Provisional action
 1. The Commission, by Regulation (EEC) No 985/83 (3 ), imposed a provisional
 anti-dumping duty on imports of barium chloride origina ting in the People's
 Republic of China and in the German Democratic Republic.
B.    Subsequent procedures
2.    Following the imposition of the provisional anti-dumping duty,
 Sachtleben GmbH (hereinafter called "Sachtleben") the current exclusive
 importer of the product concerned originati ng in the People's Republic
of China, the exporter and the main importers of the product concerned or iginat ing
in the German (Democratic Republic and the Community producer concerned
"(1) OJ No L 339, 31 .12.1979, p. 1.
 (2) OJ No L 178, 22.6.1982, p. 9.
 (3) OJ No L 110, 27.4.1983, p. 11.
 ---pagebreak---                                    - 2 -
requested, and were granted, an opportunity to be heard by the
Commission. AIL these p a r t ie s also made written submissions making
known t h e i r views on the provisional duty.
3.      Sachtleben also requested to be informed of c e r t a in f ac ts and
e s s e n t i a l considerations on the basis of which i t was intended to
recommend d e f i n iti v e action and th i s request was granted.
4.      In view of the dr a s ti c increase of the imports of the dumped product
o r iginating in the People's Republic of China during the f i r s t 3 months
of 1983 (see r e c i t a l 19 of Regulation (EEC) No 985/83) and t h e i r
eventual ef fec ts with regard to the injury suffered by the Community
                                                                    change            perioa
producer concerned, it was considered appropriate to / the inve st ig at io n 'from
August 1981/July 1982 to                the period January 1982 to March 1983.
Therefore, a l l p a r t ie s who had replied to the Commission's questionnaire
a f t e r the opening of the proceedings were requested to update accordingly
t h e i r r e p l i e s . Furthermore, v i s i t s were made to the premises of the
                                        to
Community producer concerned,/a major importer-consumer of the product
concerned and to Sachtleben's agent in Antwerp.
 C.      Dumping margin
5.       Since i t was considered appropriate to take a more recent period
of inve st ig a t io n , account has been taken of the updated information
 received concerning the export prices of the dumped products and the
normal value.
 6. The weighted average dumping marginsdetermined on the bas is of the
 revised information for the product concerned o r ig i n a ti n g in the People's
 Republic of China and in the German Democratic Republic s t i l l exceeded
 75%.
 7. S at isf act ory evidence to j u s t i f y an adjustment of the normal value
                                              thç
 for qu al ity differences bet ween^Chinese and the Community product claimed by
 Sachtleben has not been submitted and the r e f o r e the claim is r e j e c t e d .
 ---pagebreak---                                  - 3 -
                                                        account
   8.     An adjustment of the normal value to take /„ of alleged cost
   advantages of the raw material and the alleged differ ent production process
   in China claimed by Sachtleben cannot be made.          Indeed, i t remains uncertain
   how such advantages, i f they real ly existed and were not counterbalanced
   by competitive disadvantages, would be ref le ct e d in the normal value, i f
   the same conditions existed in the market economy country used for
   e s ta b lis h in g the normal value (USA). As prices are a function, not only
   of c o s t s , but also of demand, a producer benefiting from a p a r t i c u l a r
   advantage has the choice ei ther of keeping his s a l e s ' prices low or of
   maintaining them at the level of his competitors' prices and keeping the
   ex tra p r o f i t res ulting from such advantages. Even i f normal value were
   to be based on the constructed value in the analogue country (USA) any ad just ­
  ments of costs established in a market economy country would involve relying on
  the labour, materials and energy and other costs and resource alloca tions in a
  non-market economy country, which Article 2 (5) of Regulation (EEC) No
  3017/79 was sp eci fi cal ly designed to exclude. Sachtleben's suggestion to base
  the normaL value on the constructed value in the EEC cannot be accepted, as
  i t would be contrary to Article 2 (5, b) of Regulation (EEC) No 3017/79, which
  provides for the constructed value of the like product in a market economy
t h i r d country.
9. No account can be taken of the possible effec ts of the alleged price
war between the ex-manufacturer in the Federal Republic of Germany and
the Community producer concerned for the determination of the dumping, as
the Latter has been done on the basis of a comparison of the export prices
of the exporters and the price of the li ke product sold on the domestic
market of the analogue country (USA) and has no r e l a ti o n whatsoever with
the h i s t o r i c a l prices of the product concerned in the EEC.
  D.      Injury
 10.      Due to the modification of the reference period, account has been
  taken of the available updated information concerning the injury suffered
  by the Community producer           concerned. The Commission has, t h e r e f o r e ,
   modified as follows the conclusions reached in Regulation (EEC) No 985/83.
 ---pagebreak---                                              - 4 -
               11. With regard to the injury caused by crystallised barium chloride
              originating in the People's Republic of China, the s t a t i s t i c a l data
              show that imports into the Community increased from 3.088 tonnes in
              1980 to 3.828 tonnes in 1981, to 5.849 tonnes in 1982 and to 3.451
              tonnes during the f i r s t 3 months of 1983. This means an increase of
              24% between 1980 and 1981, 53% in 1982 and a further increase of 136%
              (extrapolated on a yearly basis) during the f i r s t 3 months of 1983. Sachtleben
              have contested the offi cial EEC import s t a t i s t i c s and par ti cu la rl y the 1983
              figures on the grounds                              that the bulk of their
              figures represent in fact only the putting into free circulation of goods,
             which had already entered the EEC in 1982 under the t r a n s i t (T1)
             regime and appeared already in the 1982 s t a t i s t i c s . Therefore, the
             Commission verified the imports made by Sachtleben in 1981, 1982 and
             1983. On the basis of the figures admitted by the importers known to
             the Commission the imports of cryst al li se d barium chloride in the EEC originating
in the PeooLe's Rpnuhlic of China
                increased by 42 % between 1980 and 1982. This increase must be seen in
               relation to     a decrease by 38% of the consumption of the product in th is              ~
   form in     the EEC between 1980 and 1982. The fact that a substantial
               part of these goods are held in stock by Sachtleben does not a l t e r the
               conclusion that they constitute an element of injury, as they may
               effectively be put on the market at any moment. Furthermore, a
               substantial quantity of crystallised barium chloride is s t i l l held by
              Sachtleben in Antwerp under the T1 regime. These goods constitute,
              however, at least a threat of injury, as they may be cleared at the
              customs and put into free circulation in the EEC at very short notice.
              With regard to future imports, Sachtleben is under a contractual
             obligation to buy .for        several years from the Chinese exporter a very
           substantial and increasing quantity of cr ys ta ll is ed barium chloride.
             12. With regard to the injury caused by anhydrous barium chloride
             originating in the People's Republic of China, a significant increase took
             place between 1980 and 1982. These imports stopped in 1982 due to technical
             problems. However, Sachtleben confirmed that these problems no longer exist
             so that these imports constitute a threat of injury. Furthermore,
             Sachtleben is in a position to
 ---pagebreak---                                                 - s -
                  transform the imported crystallised barium chloride into anhydrous
                  barium chloride. In order to prevent Sachtleben importing anhydrous
                  barium chloride directly from the People's Republic of China or
                  transforming imported crystallised barium chloride into anhydrous
                  barium chloride, the Community producer concerned decided to conclude with
     Sachtleben   a pluri-annual            contract for anhydrous barium chloride for which
                  the sa l e s ' prices are far below his production costs.
                  13. With regard to the injury caused by the dumped imports originating
                  in the German Democratic Republic, the evidence available to the
                  Commission shows that imports into the Community of crystallised barium
                  chloride increased in the United Kingdom, which constituted the main import
                  market of the product concerned originating in the German Democratic Republic,
                  from 0 tonnes in 1980 to 253 tonnes in 1981 and decreased slightly
                 .in 1982.       Although
                 there have been only very l i t t l e imports in 1983 of the product concerned
                 originating in the German Democratic Republic, they constitute a threat
                 of injury, given the export capacity of the exporter in the German
                 Democratic Republic and the likelihood that he will resume exporting to
                 the Community, if an anti-dumping duty would be imposed only on the
                 imports originating in the People's Republic of China.
                14. The weighted resale prices of the imports of crystallised barium chloride
                originating in the People's Republic of China and the German Democratic Republic
undercut the prices of the Community producer durina the investigation period by 7 to 17%
                 and 13 % respectively. The resale pricesof these imported products
                 were lower than those required to cover the costs of the Community
                 producer concerned.
                 15. With regard to the consequent impact on the Community producer
                 concerned the evidence available to the Commission shows that the production
                 of cryst al li se d barium chloride of the Community producer concerned
                 available for the market dropped by 6% between 1980 and 1981 and by 52%
                 between 1981 and 1982. Furthermore, the evidence available to the
 ---pagebreak---                                      - 6 -
Commission shows that the capacity u t i l i s a t i o n of the Community producer
concerned dropped accordingly.
16.     The sales of c r y s t a l l i s e d barium chloride
                                         ,of the Community producer concerned to
                                                                                   /and
customers in the EEC dropped by 33% between 1980 and 1981'remained f a i r l y
s tab l e in 1982.
                share of the                     of c r y s t a l l i s e d barium chloride
17. With regard to the'market                  / . held by the Community producer
concerned, i t has s lig h t ly increased from 30% to 33% between 1980
and 1982, whereas the market share of the product concerned orig i n ati n g
in the People's Republic of China has increased from 36% to 48% during
the same period and the market share of the product concerned o r i g i n a t i n g in
the German Democratic Republic has remained s tab l e at 8%.
 18. The losses incurred by the Community producer concerned for the c r y s t a l l i s e d
 barium chloride showed a further s u b s t a n ti a l increase between 1980 and
  1982 as well as during the f i r s t 3 months of 1983.
 19. The employment figures of the Community producer concerned have
 remained f a i r l y stable since 1980. The r is k tha t the exporter of the
 product concerned in the German Democratic Republic resumes                             exports
 of the dumped product if no anti-dumping duty is imposed on these
 imports on the one hand, and the continuation of imports of c r y s t a l l i s e d
 barium chloride from the People's Republic of China and the r is k that
 anhydrous barium chloride be imported again from the People's Republic
 of China on the other hand, c o n s t i t u t e , however, a serious t h r e a t of
  loss of employment and even of closure of the plant of the Community
 producer concerned.
 ---pagebreak---                                              - 7 -
      20.       In the Commission's view, ther efore, the facts as f i n a l l y determined show
      th a t the injury being caused by dumped imports of barium chloride originating
       in the People's Republic of China and in the German Democratic Republic, taken
       in i s o l a t i o n from that caused by other f a c t o r s , has to be considered as
      m a te r i a l.
      Furthermore, Sachtleben's argument that the ef fec ts of the alleged price war
      between the ex-manufacturer in the Federal Republic of Germany and the main
      Community producer needs to be taken into account has been duly considered.
      However, the r e s u lt s of the investigation have shown that th i s price war, i f
      i t r e a l l y exi st ed , has ceased in 1981, when the ex-manufacturer in the
      Federal Republic of Germany stopped producing the product concerned.                      In
    co ncl usion the impact of the considerable dumping practice d by the exporters
      in the People's Republic of China and in the German Democratic Republic
      on the Community market is such t h a t , taken in is o l a t i o n , i t has to be
      q u a l i f i e d as constituting material injury.
       E.        Community's interests
      21 .       Sachtleben has argued that the introduction of protect ive measures on
       the product concerned would not be in the in t er es t of d i f f e r e n t sectors of the
      Community industry. Furthermore, i t is said that the relevant market has only a
        limited pr ice e l a s t i c i t y and that the imposition of duties at the level
       of the provisional duties would lead to a further reduction of the demand
       for the product concerned.                 Neither Sachtleben, nor any other party,
        submitted any evidence on th i s matter.
      22 . in view of the p a r t ic u l a r ly serious losses which the Community producer
        concerned faces in the production and sale of the product concerned and
        in order to avoid the closure of the plant of the Community producer
         concerned, which would make the Community, to a sig n if i c a n t ext ent,
         dependent upon external supplies of t h i s product, i t is concluded
                                          that i t is in the Community's i n t e r e s t s that
         ac tion be taken.
2 3 .    In these circumstances, protection of the Community's in t e r e s t s c a l l s for
         the imposition of a def initive anti-dumping duty on imports
         of barium chloride originating in.              the People's Republic ofyXhina and
         in the German Democratic Republic.
 ---pagebreak---                                                           - 8 -
F.       D e f i n i t i v e duty
24.        Having regard to th e e x t e n t of th e i n j u r y ca u s e d , t h e r a t e o f                             the
duty should be l e s s than th e dumping margins e s t a b l i s h e d but adequate
t o remove th e i n j u r y caused.
25.        Having compared th e c o m p la i n a n t' s weighted av era ge p r i c e s and
costs,                                                                                       with t h e i n d i v i d u a l
i m p o r t e r s ' co s ts and s p e c i a l marketing c o n d i t i o n s , where a v a i l a b l e , i t i s
                        determined t h a t th e c u r r e n t i n j u r y would                        be removed i f t h e
amount o f t h e duty corresponded to th e amount by which t h e free-at-Community-
f r o n t i e r p r i c e , b e f o r e d u t y , to th e f i r s t im po rte r in t h e im p o rti ng Member
S t a t e i s l e s s than 323 ECU.
6.        C o l l e c t i o n of p r o v i s i o n a l duty
26.         Although t h e r e appears to have been no s u b s t a n t i a l imports o f
                                      ........................................... t h e e x p o r t i n g
t h e product concerned o r i g i n a t i n g in b o t h / c o u n t r i e s concerned s i n c e t h e
 i m p o s i t i o n of th e p r o v i s i o n a l d u ty , i t i s a p p r o p r i a t e t h a t t h e p r o v i s i o n a l
 duty be c o l l e c t e d , p a r t i c u l a r l y in view o f th e d r a s t i c i n c r e a s e o f th e
 imports o f th e dumped product o r i g i n a t i n g in t h e P e o p l e ' s Republic of
 China s i n c e th e opening o f t h e anti-dumping p r o c e e d i n g s .                                 The amounts
 s e c u r e d by way of p r o v i s i o n a l anti-dumping d u t i e s sh ould be c o l l e c t e d
 t o a maximum of 319 ECU.
 HAS ADOPTED THIS REGULATION:                                                                                                   -
                                                           A rticle 1
 1.         A d e f i n i t i v e anti-dumping duty i s hereby imposed on barium c h l o r i d e
 f a l l i n g w it h i n sub-heading 28.30 A I I o f t h e Common Customs T a r i f f
  (NIMEXE code 28.30-20) and o r i g i n a t i n g in th e P e o p l e ' s Republic o f China
 and t h e 6erman Democratic Rep ub li c.
 ---pagebreak---                                                        - 9 -
 2.      The amount of th e duty s h a l l be equal to the amount by which the
 p r i c e p e r tonne n e t , f r e e - a t - C o m m u n i t y - f r o n t i e r , be f o r e d u ty , is l e s s
 tha n 323 ECU.
 The f r e e - a t - C o m m u n i t y - f r o n t i e r p r i c e s h a l l be net i f th e c o n d i t i o n s of
 s a l e p r o v i d e fo r payment with in 30 days from t h e d at e of p r o v i s i o n a l
duty shipment; they s h a l l be reduced or i n c r e a s e d by 1% f o r each
i n c r e a s e or d e c r e a s e of one month in th e p e r i o d f o r payment.
 3.      The p r o v i s i o n s in force with regard to customs d u t i e s s h a l l apply to
 t h e s a i d du ty .
                                                Article 2
 The sums secured by way of p r o v i s i o n a l anti-dumping duty under Regu latio n
 (EEC) No 985/83 s h a l l be d e f i n i t i v e l y c o l l e c t e d up to a maximum of 319 ECU
per l o r r i e .
                                                Article 3
 This R e g u l a ti o n s h a l l e n t e r int o force on th e day of i t s p u b l i c a t i o n in th e
 O f f i c i a l Jo ur n al o f t h e European Communities.
 This R e g u l a ti o n s h a l l be binding in i t s e n t i r e t y and d i r e c t l y a p p l i c a b l e
 in a l l Member S t a t e s .
 Done at B r u s s e l s ,                                                              For the Council