Council Regulation (EC) No 1289/2006 of 25 August 2006 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain side-by-side refrigerators originating in the Republic of Korea

• Published date: 31 August 2006
• Subject Matter: Dumping,Commercial policy
• Official Gazette Publication: Official Journal of the European Union, L 236, 31 August 2006

31.8.2006 EN Official Journal of the European Union L 236/11

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COUNCIL REGULATION (EC) No 1289/2006

of 25 August 2006

imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain side-by-side refrigerators originating in the Republic of Korea

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) (the ‘basic Regulation’) and in particular Article 9 thereof,

Having regard to the proposal submitted by the Commission after consulting the Advisory Committee,

Whereas:

A. PROVISIONAL MEASURES

(1) On 2 June 2005, the Commission published a notice (2) initiating an anti-dumping proceeding on imports into the Community of certain side-by-side refrigerators originating in the Republic of Korea. On 1 March 2006, the Commission, by Regulation (EC) No 355/2006 (3) (‘the provisional Regulation’) imposed a provisional anti-dumping duty on the same product.

B. SUBSEQUENT PROCEDURE

(2) Subsequent to the disclosure of the essential facts and considerations on the basis of which it was decided to impose provisional anti-dumping measures, several interested parties made written submissions making their views known on the provisional findings. The parties who so requested were granted an opportunity to be heard.

(3) The Commission continued to seek and verify all information it deemed necessary for the definitive findings.

(4) All parties were informed of the essential facts and considerations on the basis of which it was intended to recommend the imposition of a definitive anti-dumping duty on imports of certain side-by-side refrigerators originating in the Republic of Korea and the definitive collection of the amounts secured by way of the provisional duty. They were also granted a period within which to make representations subsequent to the disclosure of the essential facts and considerations on the basis of which definitive measures are imposed.

(5) The oral and written comments submitted by the interested parties were considered and, where appropriate, the findings have been modified accordingly.

C. PRODUCT CONCERNED AND LIKE PRODUCT

(6) The same exporting producer as referred to under recitals 11 and 12 of the provisional Regulation reiterated and elaborated further its arguments on the issue of the product scope.

(7) In particular, this exporter claimed that the product scope should have covered all large capacity combined refrigerator-freezers (‘CRF’) with a capacity above 400 litres since a segmentation of those refrigerators would be inconsistent with the past practice of the Community institutions, would disregard evidence from other interested parties and would ignore market reality (claim (i)).

(8) This exporter further claimed that should claim (i) be rejected, any attempt to segment the CRF market should exclude three-door side-by-side models (as described in recital 12 of the provisional Regulation) from the scope of the product concerned. In essence, this exporter argued that it is not the external characteristics (notably the doors) of the models which are relevant, but the internal configuration. In particular, the exporter considered that the alignment of the fresh food and freezer compartments was the essential basic distinguishing characteristic of a side-by-side refrigerator (claim (ii)).

1. Claim (i)

(9) It is the standing practice of the Community institutions when defining the product concerned to consider primarily the basic physical and technical characteristics of the said product. Furthermore, models classified in different product segments are usually considered to form one single product unless clear dividing lines exist between the various segments.

(10) Having paid careful attention to all the submissions made by all the interested parties to this proceeding, the investigation has identified that the CRF market is traditionally divided into three segments: the segment of the bottom-mount refrigerators (i.e. fresh-food compartment placed on top of the freezer compartment), the segment of the top-mount refrigerators (i.e. freezer compartment placed on top of the fresh-food compartment) and the segment of the side-by-side refrigerators (i.e. two doors side-by-side opening on two compartments placed side-by-side). This market categorisation into three distinct segments is undisputed and is familiar to all operators in this particular business. It has even been acknowledged by the said exporter in several written submissions. Furthermore, the claim based on the ‘evidence from other interested parties’ reflects in fact selective reading by this exporter of a fragment of a submission from a white goods producer that supports measures but does not manufacture the like product (see recitals 10 and 104 of the provisional Regulation). In this submission, the manufacturer of white goods indicates that it has faced negative knock-on effects on its sales of non-like products in the Community due to dumped imports. However, the fact that this manufacturer has allegedly suffered such a knock-on effect is not in itself conclusive evidence that all large capacity CRFs with a capacity above 400 litres should be considered to be the product concerned regardless of the segments as described above into which they fall. Indeed, it was established that the technological and physical characteristics underlying these two products are totally different.

(11) It is therefore considered that there exists a clear dividing line between the three segments constituting the universe of the CRF market. It is concluded that there is no justification for expanding the scope of the product concerned in order to encompass all CRFs as requested by the exporter concerned. As a consequence, claim (i) had to be rejected.

2. Claim (ii)

(12) In claim (ii), the same exporter seeks the exclusion from the scope of the product concerned of a particular model of CRF (hereafter referred to as ‘the three-door model’) which has already been described in recital 12 of the provisional Regulation.

(13) Since the start of this proceeding, the Commission had defined the scope of the product on the basis of external characteristics, namely the presence of at least two separate swing doors, placed side-by-side. This approach was deemed appropriate on both grounds of physical characteristics and consumer perception. As to physical characteristics, the presence of the two swing doors placed side-by-side was considered the most immediately visible feature. As to consumer perception, a key element was the fact that the claimant itself had repeatedly marketed and advertised the three-door model as a side-by-side refrigerator. The Commission was informed that inner compartments were placed differently in a typical side-by-side refrigerator and in a three-door model, but this distinction was not considered decisive for the exclusion of three doors side-by-side refrigerators from the product definition since no conclusive evidence had been submitted in this respect. On the basis of the information available at that time, the Commission had indicated in recital 14 of the provisional Regulation that ‘there is no commonly used definition of side-by-side refrigerators’.

(14) This issue continued to be examined after provisional measures. Additional evidence supporting a definition of the segment of side-by-side refrigerators on the basis of the inner configuration of the compartments and not on the basis of the position of the doors was submitted by the above-mentioned exporter. After definitive disclosure, in the light of further evidence provided by the same exporter, the positions expressed by some leading research institutes and classification bodies, most of which classify side-by-side refrigerators on the basis of the inner configuration and not on the basis of the position of the doors, were further assessed. This lead to the conclusion that, from the point of view of physical characteristics, the three-door model cannot be considered as part of the side-by-side segment, as referred to under recital 10 above. As to consumer perception, both the claimant and the Community industry submitted consumer surveys supporting their respective views and contradicting each other. In this respect, therefore, no clear conclusion could be drawn in one direction or the other.

(15) It stems from the above that the three-door model should be regarded as belonging to the segment of the bottom-mount refrigerators and not to the segment of the side-by-side refrigerators. Claim (ii) was therefore accepted.

(16) As a consequence, it was deemed appropriate to revise the product scope definition as determined in the provisional Regulation. Therefore, the product concerned is definitively defined as combined refrigerator-freezers with a capacity exceeding 400 litres and with the freezer and refrigerator compartments placed side-by-side, originating in the Republic of Korea, currently classifiable within CN code ex 8418 10 20.

D. DUMPING

1. Normal value

(17) In the absence of any comments, the content of recitals 18 to 22 of the provisional Regulation concerning normal value is hereby confirmed.

2. Export price

(18) As stipulated in recital 23 of the provisional Regulation, the export price for sales into the Community made via related importers was constructed on the basis of the resale price to the first independent customer in accordance with Article 2(9) of the basic Regulation. In this

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