Council Regulation (EC) No 174/2000 of 24 January 2000 repealing Council Regulation (EEC) No 3433/91 insofar as it imposes a definitive anti-dumping duty on imports of gas-fuelled, non-refillable pocket flint lighters originating in Japan
L 22/16 EN Official Journal of the European Communities 27. 1. 2000 COUNCIL REGULATION (EC) No 174/2000 of 24 January 2000 repealing Council Regulation (EEC) No 3433/91 insofar as it imposes a definitive anti-dumping duty on imports of gas-fuelled, non-refillable pocket flint lighters 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 (1), and in particular Article 11(6) thereof, Having regard to the proposal submitted by the Commission, Whereas: (1) (2) (3) A. PROCEDURE 1. Measures in force the ‘definitive duty Regulation’, By Regulation (EEC) No 3433/91 (2), hereinafter referred the Council to as imposed a definitive anti-dumping duty on imports of gas fuelled, non-refillable pocket flint lighters originating in Japan, the People's Republic of China, the Republic of Korea and Thailand. As regards Japan, the duty rate was set at 35,7 %. The definitive duty Regulation was amended with respect to China in 1995 by Regulation (EC) No 1006/ 95 (3). Insofar as Thailand is concerned, it was replaced by Regulation (EC) No 423/97 in March 1997 (4). 2. Initiation of a review In May 1996 the Commission published a notice of the impending expiry of the measures in force concerning Japan and the Republic of Korea (5). After this publica- tion, the Commission received a request for a review pursuant to Article 11(2) of Regulation (EC) No 384/96, hereinafter referred to as the ‘Basic Regulation’, with regard to imports of gas-fuelled, non-refillable pocket flint lighters originating in Japan, lodged by the Euro- pean Federation of Lighter Manufacturers on behalf of BIC S. A. and Flamagas S. A. Subsequently this request received the support of Swedish Match S. A. BIC S. A. , Flamagas S. A. and Swedish Match S. A. represent almost the totality of Community production of the product concerned. (4) The request contained sufficient prima facie evidence that the expiry of measures would be likely to result in a recurrence of dumped imports causing injury. Evidence (1) OJ L 56, 6. 3. 1996, p. 1. Regulation as last amended by Regulation (EC) No 905/98 (OJ L 128, 30. 4. 1998, p. 18). (2) OJ L 326, 28. 11. 1991, p. 1. Regulation as last amended by Regu- lation (EC) No 423/97 (OJ L 65, 6. 3. 1997, p. 1). (3) OJ L 101, 4. 5. 1995, p. 38. (4) OJ L 65, 6. 3. 1997, p. 1. (5) OJ C 155, 30. 5. 1996, p. 6. (5) (6) (7) (8) (9) of the presence of under-utilised capacity in Japan as well as evidence that imports from Japan would have an the immediate depressing effect on the prices of Community producers supported this alleged likelihood. It was further alleged that this situation would exacer- bate the continuing vulnerability of the Community industry. Therefore, the Commission announced the review of the definitive duty Regulation in respect of Japan (6). This review was opened in accordance with Articles 11(2) and 11(3) of the Basic Regulation, as an interim review also seemed to be appropriate. As regards Korea, the measure expired (7). 3. Review investigation The Commission officially advised the only producer in the exporting country known to be concerned, Tokai its related importer in the Community, Corporation, Tokai Seiki GmbH, the representatives of the exporting country and the complainants. The parties directly concerned were given the oppor- tunity to make their views known in writing and to request a hearing. One of the complainants requested and was granted a hearing. to all parties The Commission sent questionnaires known to be concerned and received detailed informa- tion from the complainant Community producers, their subsidiaries, related importer located in the Community. exporter and its Japanese the The Commission sought and verified all information it deemed necessary for the purpose of, the investigation and carried out verifications at the following companies: the premises of Community producers and their subsidiaries — BIC S. A. (the BIC group), Clichy, France, — BIC BJ 75, Redon, France, — BIC Deutschland GmbH & Co. , Ettlingen, Germany, — BIRO BIC Ltd, London, UK, — Laforest BIC S. A. , Tarragona Spain, — Swedish Match Lighters B. V. , Assen, Netherlands, — Swedish Match Lighters Rillieux-la-Pape, France, (including Cricket SA), — Arnold André GmbH & Co. , KG, Bünde, Germany, — Flamagas S. A. , Barcelona and Llinas del Valle, Spain. (6) OJ C 361, 30. 11. 1996, p. 3. (7) OJ C 360, 29. 11. 1996, p. 2. 27. 1. 2000 EN Official Journal of the European Communities L 22/17 Producer in the country of origin — Tokai Corporation Japan, Tokyo, Japan. (10) (11) (12) For the purpose of the dumping, injury and Community interest determinations, the geographical scope of the investigation was the Community of 15. The investigation of dumping covered the period from 1 January 1996 to 30 September 1996 (hereinafter referred to as the ‘investigation period’). The examination of injury covered the period from 1992 up to the end of the investigation period. The investigation exceeded the normal time period provided for in Article 11(5) of the Basic Regulation. This was due to the fact that the Commission considered that the data gathered and examined initially were not sufficient to be used as a basis for a new anti-dumping duty and that, for an accurate assessment of the likeli- hood of recurrence of injurious dumping, a verification visit to the exporter had to be carried out at an advanced stage of the investigation. Moreover, the investigation was extended considerably by the Commission's two initial proposals to maintain the anti-dumping duty giving rise to lengthy deliberations in the Council. B. PRODUCT CONCERNED AND LIKE PRODUCT 1. Product concerned was no longer appropriate. In particular, it did not show any changes in the (basic) technical characteristics, such as the ignition system, of either type of lighters, which could have invalidated the findings of the definitive duty Regulation. (16) As the evidence that was presented was insufficient to justify the inclusion of electronic lighters in the invest- igation, and the request was made belatedly by a party that had supported the request for a review without reservation, the request for an extension of the scope of the review investigation could not be granted. Different sizes and models (17) it should be noted that Finally, the product under consideration is manufactured in different sizes and models. All these disposable flint lighters have the same basic technical characteristics and the same basic application, and perform the same function. As in previous investigations, the whole range of models of disposable flint lighters was, therefore, considered as forming one single category of product. 2. Like product (18) As regards the disposable flint lighters produced and sold domestically in Japan, the investigation showed that such products were in all respects identical to, or closely resembling, those exported to the Community from the country in question. (13) The products under consideration are gas-fuelled, non- refillable pocket flint lighters (hereinafter referred to as falling within CN code flint ‘disposable ex 9613 10 00. lighters’) (19) Request for inclusion of other lighters (14) It should be recalled in this respect that there are other disposable lighters on the market (so-called electronic or piezo lighters) which are not subject to anti-dumping measures. Two months after the opening of the review investigation, Swedish Match S. A. made a request to extend the scope of this review investigation to elec- tronic (or piezo) lighters arguing that gas-fuelled, non- refillable pocket flint lighters and gas-fuelled, non-refil- lable electronic lighters (hereinafter ‘electronic lighters’) formed one single category of the product. (15) As regards this request, it should be recalled that the proceeding — opened in April 1990 — concerns gas- fuelled, non-refillable pocket flint lighters and that it has already been assessed (see in particular Regulation (EEC) No 3433/91 which confirms the provisional findings laid down in recital 11 to Council Regulation (EEC) No 1386/91 (OJ L 133, 28. 5. 1991, p. 20)) that the (basic) technical characteristics of electronic lighters were quite different lighters currently subject to anti-dumping duties. The request did not contain any evidence showing that this conclusion the disposable flint from those of The investigation also established that the disposable flint lighters imported from the country concerned, on the one hand, and those produced by the Community industry and sold in the Community market, on the other hand, possess similar basic technical characteristics and are intended for the same use. The disposable flint lighters produced and sold by the Community industry should therefore be regarded as like products to those imported from the country concerned. (20) Accordingly, it was concluded that the disposable flint lighters produced and sold in the Community, as well as those produced and sold in Japan should be regarded as like products, within the meaning of Article 1(4) of the Basic Regulation, to those exported to the Community from Japan. C. DUMPING 1. Normal value sole (21) As in the original investigation, Tokai Corporation was the cooperating exporting Japanese producer. During the investigation period it sold 20 different models of the product concerned on its domestic market. Only two of those models were exported to the Community. L 22/18 EN Official Journal of the European Communities 27. 1. 2000 (22) (23) (24) It was found that this exporter's overall domestic sales of the product concerned during the investigation period were representative since the total volume of such sales exceeded the threshold of 5 % of export sales provided for in Article 2(2) of the Basic Regulation. Domestic sales of each of the two product models exported to the Community were also representative because they met the same 5 % criterion. In accordance with Article 2(4) of the Basic Regulation, the Commission also had to determine whether domestic sales of each model were made in the ordinary course of trade by looking at the proportion of profit- able sales to total sales. The investigation showed that all domestic sales made during the investigation period were profitable. Consequently, normal value was based on the average weighted sales price of all domestic transactions of the two models in question. 2. Export price The totality of the export sales made by the exporter concerned during the investigation period was made to a related company in the Community. The export prices were therefore constructed, in accordance with Article 2(9) of the Basic Regulation, on the basis of resale prices to the first independent buyer adjusted to take account of all costs incurred between importation and resale including customs and anti-dumping duties and a 5 % profit margin. The latter was established on the basis of the profit margins considered reasonable in this business sector for unrelated importers. (25) Where cost allocations for importers' general administra- tion and selling expenses were necessary in the construc- tion of export prices, these were made on the basis of turnover. 3. Comparison and dumping margin (26) In accordance with Articles 2(10) and 2(11) of the Basic Regulation, the weighted average normal value per model was compared with the weighted average export price per model, at ex-factory level and at the same level of trade. For the purpose of a fair comparison, adjust- ments were granted for those differences affecting price comparability for which satisfactory evidence was supplied. Thus, adjustments were made in respect of insurance, credit and packaging. transport, (27) The comparison of normal value and export prices showed the existence of dumping. The dumping margin expressed as a percentage of the CIF Community frontier value of the imports was found to be 208,1 %. D. COMMUNITY INDUSTRY (28) investigation, Tokai Seiki GmbH, a In the present the subsidiary of Tokai Corporation, a producer of product concerned in the Community and the only cooperating importer in the Community of disposable flint lighters originating in Japan, was not included in the definition of the Community industry in accordance with Article 4(1)(a) of the Basic Regulation as it was the sole importer of the product under consideration and a 100 % subsidiary of Tokai Corporation Japan. (29) Disregarding Tokai Seiki GmbH's production, the three Community producers which cooperated with the present investigation (including their subsidiaries) repre- sented almost the totality of Community production of disposable flint lighters. Consequently, these three co- operating the Community industry within the meaning of Article 4 of the Basic Regulation. Community producers constitute E. INJURY 1. Preliminary remark (30) In Recital 15 of the definitive duty Regulation it was 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’. As meanwhile the measure concerning the Republic of Korea lapsed and the meas- ures concerning the People's Republic of China and Thailand have been amended further to interim reviews as stated in recital 2 of this Regulation, the actual impact of imports originating in Japan, as well as the possible impact seen from the angle of recurrence, had to be examined in isolation. 2. Consumption in the Community (31) In order to calculate total apparent consumption of disposable flint lighters in the Community, Community producers' sales in the Community were added to the total imports originating in third countries, as declared under CN code ex 9613 10 00. An adjustment was made as regards imports originating in China for the years 1994 and 1995 (see recital 46 to Regulation (EC) No 423/97). On this basis annual apparent consumption in the Community increased by 27 %, from 617,7 million units in 1992 to 785,4 million units in 1996. 27. 1. 2000 EN Official Journal of the European Communities L 22/19 3. Factors relating to imports originating in Japan upward effect the anti-dumping duty of 35,7 % must have had on the price charged by the related importer. Volume and market share 4. Situation of the Community industry (32) From 1992 to the investigation period, imports from Japan plummeted to very low levels in absolute terms. The indexed import figures were 100 in 1992, 150 in 1993, 33 in 1994 and 83 in 1995, while sales of such imports during the investigation period represent but 6,1. The market share of imports from Japan decreased from around 0,5 % in 1992 and 1993 to 0,06 % during the investigation period. The anti-dumping measure under review therefore effectively limited the impact of dumping of imports of disposable flint lighters origin- ating in Japan. (33) In this context it should, however, be noted that a considerable portion of overall imports was dumped. In imports from Mexico, the Philippines and particular, Thailand should be mentioned in this regard, as referred to in Regulation (EC) No 423/97. Price undercutting (34) (35) The Commission calculated to what extent the prices charged by the exporter in the Community market undercut the price charged by the Community produ- cers. As all sales made by the exporter were made to its related importer, this comparison was made at the level of sales to the first independent customer, and on the basis of the related importer's and the Community producers' weighted average selling prices free of all rebates and taxes The price charged by the related importer was not adjusted for anti-dumping duties paid. The comparison was made at the level of prices to wholesalers (thus excluding sales to retailers and the advertising sector). Moreover, the price comparison was made for naked lighters (including, however, the lighters the exporter presented as ‘wrapped’) as the exporter had not exported any printed or sleeved lighters during the investigation period. (36) As in the original investigation and in accordance with Article 11(9) of the Basic Regulation, the price undercut- ting calculation was made for lighters with a similar gas content (see recital 13 of Regulation (EEC) No 3433/91). (37) On this basis it was found that the average price of the imported products undercut the weighted average price of the Community producers by 22,9 % during the investigation period. This is to be compared with the average undercutting of 11,5 % found in the original investigation. It should therefore be concluded that the exporter's undercutting level has increased, despite the Production (38) From 1992 to 1996 production by the Community industry increased by 28 %. Capacity and Utilisation of capacity (39) The capacity utilisation rate increased from 66 % in 1992 to 73 % in 1994, to drop to 71 during the invest- igation period. This drop coincided, however, with an increase in capacity. Although an increase in capacity of almost 25 % was reported, the increases in capacity are quite recent, as from 1992 to 1994 capacity did not increase at any material rate. Sales volume (40) in units Sales in the Community market by the Community industry increased by 33 % from 1992 to the investigation period. Market share (41) (42) (43) share of the In a growing market, the market Community industry dropped rather steadily from 66,1 % in 1992 to 46,8 % in 1995, after which it increased somewhat to 53,6 % during the investigation period. This market share is still somewhat lower than the 1990 market share of 57,3 % (see recital 48 to Regulation (EC) No 423/97) but the Community industry is beginning to recover from the effects of dumped imports. shows that Price evolution and total sales value It was established that weighted average sales prices of the Community industry had dropped by almost 8 % from 1992 to the investigation period. The favourable development of sales volume was therefore not fully reflected in terms of turnover: the value of sales in the Community market increased by only 23 %. The lighter market is known to be very price sensitive. This means that faced with low priced dumped imports, the Community industry is either forced to lower its prices in order to try to maintain market share, produc- tion level and capacity utilisation, or set to lose market share if it tries to maintain its prices. L 22/20 EN Official Journal of the European Communities 27. 1. 2000 Profitability 5. Conclusion (50) (51) (52) (53) (54) (55) (44) After several years of losses, the Community industry's return on sales became slightly positive in 1991 and deteriorated somewhat in 1992 (see recital 555 to Regu- lation (EC) No 423/97). (45) For the present investigation 1992 was taken as the basis for comparison. After a further deterioration in 1993, the Community industry's financial results have steadily improved: compared to 1992, the profit rates more than doubled in 1994 and more than tripled in the investigation period. (46) Nevertheless, the data supplied by the Community industry, which for this purpose did not include one of the complainants given that it did not give an admissible reply on profitability, show that since 1992 its overall financial performance continued to be below the target set as a reasonable profit for this industry in the defin- itive duty Regulation (see recital 17 of that Regulation). In fact, profits in 1992 and 1993 were very small and, although in the following years an improvement was noticeable, profits were less than half the non-injurious level set. (47) (48) Stocks The Community industry did not build up any signifi- cant stocks. It is usual practice in this sector to stop production if stocks become too big because of the security risks of stocking lighters containing gas for a long period of time. Moreover, as rationalisation efforts have been made the overall stocks at the end of the investigation period were some thirty percent smaller than those at the end of 1992. Employment From 1992 to the investigation period, employment in the Community industry was stable from 1992 to 1994 and increased by some 17 % since 1995. While this could be said to be a sign of recovery, it should be noted that the employment figure for 1992 was at its lowest level and had fallen by 13 % since 1989 (see recital 49 to Regulation (EC) No 1006/95). It was noted that a considerable portion of the expansion pertains to the sales and administrative segment rather than to produc- tion. The situation of the Community industry has improved in recent years due to an increase of their sales in both the Community market and third countries. This devel- opment coincided with the imposition of several anti- dumping duties. The increase in sales in the Community market is most probably due to both the growth of consumption and, to a lesser extent, to the beneficial effects of anti- dumping measures taken by the Community. The downward trend of the Community industry was reversed since 1995, but its 53,6 % market share during the investigation period is still smaller than the 1992 one. the market share of The increase in apparent consumption and the fact that anti-dumping measures were imposed, should normally have had an upward effect on prices in the Community market. Nevertheless, the Community industry were found to have decreased by 8 %. the prices of Sales by the Community industry in the Community market proved more profitable during the investigation period than in e. g. 1992. However, the prices charged by the exporter in the Community market still undercut the Community industry's prices after application of the anti-dumping duty and the levels of profitability were still much lower than the non-injurious level fixed in the definitive duty Regulation. it the above, is considered that In the light of the Community industry continues to suffer injury, notably in terms of profitability and the growth of market share. As the market share of imports of disposable flint lighters originating in Japan was very small, it was not possible to establish a causal link between the dumped Japanese imports and this injury. The injury caused by in these imports is therefore considered negligible or, any case, not material. F. LIKELIHOOD OF RECURRENCE OF INJURIOUS DUMPING Exports 1. Introduction (49) The Community industry performed well in export markets. Its sales in units steadily increased from 1992 to the investigation period. Over this period export sales, which represent approximately 60 % of the Community industry's overall production, increased 69 %. (56) The Community industry requested that the definitive duty Regulation be reviewed arguing that there was a likelihood of recurrence of injurious dumping. In order to make a determination on this point, a number of 27. 1. 2000 EN Official Journal of the European Communities L 22/21 in particular the exporter's factors were considered, group behaviour, the availability of unused capacity at the exporter's plant in Japan, the existence of a price undertaking with respect to exports by a company belonging to the exporter's group and the price the the duty were allowed to exporter might charge if expire. In addition to the examination of the position of the Community industry, resumed exports from Japan would be likely to have on the Community industry, the existence of dumping practices and the evolution of the share of overall imports in the Community market were examined. the impact that 2. Exporter's group behaviour In recent years, only small quantities of disposable flint lighters were imported from Japan and sold on the Community market, especially when compared to imports from several other third countries (primarily China, Mexico, the Philippines and Thailand) whose prices were found to be at dumped levels. However, the imports originating in Japan has to be low level of considered in the light of the Tokai group's behaviour. The sole exporter in the investigation concerning, inter alia, imports originating in Mexico further to which definitive anti-dumping measures were imposed in March 1997 — was a fully owned and controlled subsidiary of the Tokai group developed after the impo- sition of anti-dumping measures on disposable flint lighters originating in Japan (see recitals 9 and 36 to Regulation (EC) No 423/97). The import figures show that imports from Mexico have simply replaced those produced (and exported) by Tokai Corporation at its Japanese plant, after the imposition of measures on the latter the imported quantities of lighters originating in Mexico are similar to the quant- ities that Tokai Corporation used to deliver to the Community market from Japan prior to the imposition of the 1991 measure. Moreover, it should be recalled that Tokai Corporation started a downward price trend by selling Japanese lighters at dumped prices in the late subsequently reinforced by 1980s. This dumping practices of other Asian producers and its resumption of dumping through its subsidiary set up in Mexico. trend was in 1991. Indeed, (57) (58) (60) therefore considered appropriate to take into is It account that, as of 7 March 1997, definitive anti- dumping duties were imposed on imports of disposable flint lighters originating in Mexico, the Philippines and Thailand by Regulation (EC) No 423/97 and that the to anti-dumping Mexican exporter, currently subject measures, is a subsidiary of the Japanese exporter, when examining what the existing measure were allowed to lapse. is likely to happen if 3. Japanese production capacity (61) From 1992 to the investigation period, the exporter's in production capacity decreased by 54 %. However, addition to the decrease of production capacity, the utilisation rate (expressed in percent) of its remaining capacity also decreased by 38 % from 1992 to the investigation period. (62) During the investigation period, unused capacity at the exporter's Japanese plant accounted for a bigger quantity lighters Tokai than the 56,6 million disposable flint Corporation exported from Japan in 1989 (i. e. the investigation period of the original investigation. It was also established that, from 1992 to the investigation period, the unused capacity had been rather stable in absolute terms, given the concomitant decreases of production capacity and the capacity utilisation rate. 4. Price undertaking applicable to another group company (63) After the imposition of the measure under review, the exporter shifted the production of disposable flint lighters destined for export to the Community market to Mexico and subsequently offered a price undertaking in imports originating in that country when respect of anti-dumping measures imports were warranted in March 1997. these on (64) Without moving production lines from Mexico to Japan, the exporter has sufficient freely disposable capacity at its Japanese plant to supply the Community market with a quantity higher than its 1989 exports and this would allow the exporter to charge lower prices on the Community market than permitted for imported prod- ucts originating in Mexico. (59) In the light of the above, the low level of Japanese imports during the investigation period cannot lead to the conclusion that these developments, which occurred after the imposition of measures in 1991, are the result of normal an exporting i. e. behaviour independent of the measures producer, subject to review. In fact, they are the result of an apparent strategy of the Tokai group. economic behaviour of 5. Continuation of dumping and price the exporter might charge (65) As stated above, during the investigation period, imports of disposable flint lighters originating in Japan continued to be dumped. As the imported products were sold at prices which were significantly more dumped than in the original investigation it appears likely that dumping will continue. L 22/22 EN Official Journal of the European Communities 27. 1. 2000 (66) Despite the application of the anti-dumping duty, under- the average unit price charged by the cutting of Community producers was (22,9 %) during the investigation period. If the anti-dumping duty had been deducted from the price charged to the first the the independent Community industry would have been undercut by as much as 43,1 %. average price of significant customer, still 6. Impact on the Community industry (67) (68) The price depressing effect of continued dumping during the investigation period was minimal, due to the application of the anti-dumping duty and the small quantities imported. The exporter had, however, suffi- cient unused capacity to resume exports of disposable flint lighters originating in Japan at significant levels, e. g. similar to the quantity imported in 1989 (56,6 million). If such a quantity would be sold in the Community the same prices charged by the German market at subsidiary of the exporter during the investigation period, this would result in substantial downward pres- sure on prices in the Community market and corre- sponding losses of turnover and market share. The quantity imported from Japan in 1989 would pres- ently represent a market share of approximately 7,2 %. This market share is too significant to be without any impact on the situation of the Community industry It was, however, not possible to establish with precision what the effect of the removal of the measures would be on such factors as market shares, profitability and employment of the Community industry, as much would depend on uncertain factors such as the growth of consumption in the Community and the general price depression which may be caused by the resumption of importation of significant quantities. (69) A global analysis of some specific aspects of the main regional markets in the Community was made to assess the impact of the importation of significant quantities of disposable flint lighters originating in Japan at prices which significantly undercut the Community price is likely to have on the Community industry. (71) (72) (73) future price undercutting consumers. The effects of would therefore be significant (in terms of loss of market share and loss of profitability since it would most likely last for an extended period of time as access to the distribution network is normally granted for long contract periods. It was also established that at producer level prices in the United Kingdom were relatively low and the Community producers were not well established in this market. In these circumstances, future price undercutting would impair the penetration of Community producers' dispos- able flint lighters in this already difficult market and further reduce the profitability of their sales. Competition in the French market was found to be important due to the presence of manufacturing plants of two major Community producers but price depres- sion appeared less important than in e. g. Germany and the UK. Future and increased price undercutting would, however, be likely to bring about greater price depres- sion and a loss of market share. It was also established that two Community producers have production plants in Spain and are well established in that market. It was found that a very substantial part of the Spanish market is supplied by non-Community producers, as Spain was the second largest importing Member State in 1995, and prices were low compared to France and Germany. As one of the producers estab- lished in Spain indicated that further rationalisation and cost reduction in its production plant was not possible, a loss of a substantial market share or a price war in the Spanish market is likely to result in closure of its plant, especially if this loss were matched by a similar develop- ment in the nearby, important French market. 7. Volume and prices of overall imports (74) As stated above, the Japanese exporter decided to supply the Community market with products manufactured in Mexico, on which anti-dumping measures were imposed in March 1997. Therefore, the remedial effect of the measure imposed in 1991 was much smaller than it would have been under normal circumstances. (70) It was established that competition on the German market was fierce as major distributors and, in partic- ular, supermarket chains usually select one or two suppliers per product offered in their outlets and thus exercise downward pressure on the prices of these suppliers. In this situation even minimal price undercut- ting precludes to distribution networks representing a large number of the Community industry's access (75) In addition, overall imports of disposable flint lighters increased by 74 % from 1992 to the investigation period, an increase much higher than the increase of consumption during that period. As a result, the market share of these imports increased from 33,5 % in 1992 to 53 % in 1995 and dropped to 46,3 % in 1996. 27. 1. 2000 EN Official Journal of the European Communities L 22/23 (76) As shown by the successive anti-dumping measures imposed from 1992 to 1998, there has been a contin- uous influx of low-priced and dumped imports from third countries in the Community market. As a result prices on the Community market have continuously dropped to reach low levels: in a growing market the prices of the Community industry nevertheless decreased by 8 % from 1992 to the investigation period. (80) Although no closure of production plants occurred, this appears due to a strategic approach of the producers concerned, supported by the existence of anti-dumping measures concerning disposable flint lighters and the development of it their export sales. should be noted that all three producers have profitable activities in other sectors, which provide enough finan- cial resources to maintain their production plants for disposable flint It cannot, for however, be ruled out that the effects of a discontinu- ation of an anti-dumping measure will provoke the closure of one or more of the production plants. In this regard, some time. lighters G. COMMUNITY INTEREST (81) In view of the above, the effectiveness of the Commu- nity's measures designed to re-establish fair and open market conditions and to protect the Community industry against an unfair trading practice is at stake. This major consideration apart, there is a serious risk that Community producers put an end to production at one or more plants, if the anti-dumping measure were allowed to lapse and subsequently injurious dumping of large quantities of disposable flint lighters originating in Japan would occur. 2. Importers (82) As the exporter did not report any direct sales to unre- lated parties in the European Community and no reac- tion was received from any importer after the publica- tion of the notice of initiation, no unrelated importers of Tokai's lighters originating in Japan could be identified. 1. Community industry The Community industry has for almost a decade been suffering from low-priced and dumped imports of disposable flint lighters. The objective of the definitive duty under review, to re-establish fair competition in the Community market between the Community producers and their exporting counterparts in third countries, has not been fully met as is shown by subsequent develop- ments: Tokai itself set up a production plant in Mexico and started exporting from there to the European Community at dumped prices, while other third coun- tries — more particularly China, the Philippines and Thailand — also resorted to dumping. As a result the Community industry has not been able to recover entirely, despite its efforts to reduce costs and to benefit from economies of scale. The Community industry consists of two multinational groups selling several products other than disposable flint lighters and a relatively small producer, which combines the production of disposable flint lighters with a trading company. (83) As regards Tokai's subsidiary in Germany, which is the sole importer of disposable flint lighters originating in Japan, it should be noted that it employed a very limited number of people as compared to the Community industry. The impact on this importer of maintaining the measure under review is therefore likely to be minimal. The Community industry has been making considerable efforts to improve its productivity in recent years in an attempt to obtain the lowest possible cost of production and to enhance its competitiveness in this price sensitive the two market. Rationalisation efforts were made: producing groups have rationalised their production process and adapted their structures, the third producer's efforts were primarily based on the realisation of econo- mies of scale. New investments were also made to improve productivity. However, given that export sales increased much faster than sales in the Community and export sales represent more than half of the Community producers' sales, the investments in production capacity were primarily made for the purpose of supplying markets other than the Community market. 3. Consumers (84) In the original investigation, the importers alleged that the interests of consumers would be adversely affected by anti-dumping measures on disposable flint lighters. However, in the present investigation, no representations of consumers associations were received and there is otherwise no reason to assume that a change of circum- stances has occurred which could invalidate the argu- ments used in previous investigations to reject this alle- gation. (77) (78) (79) L 22/24 EN Official Journal of the European Communities 27. 1. 2000 H. REPEAL OF ANTI-DUMPING MEASURE (85) On the basis of these facts, the Commission concluded that injurious there was likelihood of recurrence of dumping and in April 1999, made the second of two proposals to impose a definitive anti-dumping duty on imports of gas-fuelled, non-refillable pocket flint lighters originating in Japan. However, the appropriate majority in the Council was not achieved to adopt a Regulation on the basis of either Commission proposal. (86) Article 11(2) of the Basic Regulation provides that a definitive anti-dumping measure shall expire five years from its imposition, unless it is determined in a review that the expiry would be likely to lead to a continuation or recurrence of dumping and injury. If an expiry review is carried out, the anti-dumping measure remains in force pending the outcome of the review. (87) In the present case, therefore, the result of the Council deciding not to adopt a Regulation on the basis of a Commission proposal would have the consequence that the review proceeding remaining open and the existing measure remaining in force for an unlimited period of time. (88) Moreover, Article 11(5) of the Basic Regulation provides that a review shall be carried out expeditiously and shall normally be concluded within 12 months of the date of initiation of the review. (89) In these circumstances, the Commission considers that the anti-dumping duty on gas-fuelled, non-refillable pocket lighters originating in Japan should be repealed in order to avoid both an undue duration of the review and the remaining in force of the anti-dumping measure for an indefinite period of time. flint I. FINAL PROVISIONS (90) All interested parties cooperating with the investigation, the complainants, the exporter and the Japanese govern- ment, received disclosure in writing of the essential facts and considerations on the basis of which the Commis- (91) (92) sion intended to recommend that the definitive measure be repealed. The complainant producers objected to the intended course of action arguing that the circumstances had not changed and that in their opinion the anti-dumping duty should be maintained. that Taking into account the anti-dumping duty on imports originating in the Republic of Korea imposed by the Regulation by which the definitive anti-dumping duty on disposable flint lighters originating in Japan was also imposed has meanwhile lapsed, provision should be made to remove the references to the anti-dumping duty on imports from the Republic of Korea from the Regula- tion, HAS ADOPTED THIS REGULATION: Article 1 1. Regulation (EEC) No 3433/91 is hereby repealed insofar as it imposes a definitive anti-dumping duty on imports of gas-fuelled, non-refillable pocket flint lighters falling within CN code ex 9613 10 00 originating in Japan. Regulation (EEC) No 3433/91 is hereby amended as 2. follows: (i) In Article 1(1) the terms ‘originating in Japan, the People's Republic of China and the Republic of Korea’ shall be replaced by ‘originating in the People's Republic of China’. (ii) Article 1(2) shall be replaced by the following: ‘2. The amount of duty shall be EUR 0,065 per lighter. ’ Article 2 This Regulation shall enter into force on the day following 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, 24 January 2000. For the Council The President J. GAMA