title: Council Decision 2009/1012/CFSP of 22 December 2009 on support for EU activities in order to promote the control of arms exports and the principles and criteria of Common Position 2008/944/CFSP among third countries

text:
               29.12.2009

               EN

               Official Journal of the European Union

               L 348/16

      COUNCIL DECISION 2009/1012/CFSP
   of 22 December 2009
   on support for EU activities in order to promote the control of arms exports and the principles and criteria of Common Position 2008/944/CFSP among third countries
   THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty on European Union, and in particular Article 26(2) and Article 31(1) thereof,
   Whereas:

               (1)

               On 26 June 1997, the Council adopted the EU Programme for Preventing and Combating Illicit Trafficking in Conventional Arms, committing the EU and its Member States to take concerted action to assist other countries in preventing and combating the illicit trafficking of arms.

               (2)

               On 8 December 2008, the Council adopted Common Position 2008/944/CFSP defining common rules governing control of exports of military technology and equipment, which lays down eight criteria for the export of conventional arms (1), establishes a notification and consultation mechanism for denials and includes a transparency procedure through the publication of the EU annual reports on arms exports. That Common Position contributes significantly to the harmonisation of national arms export control policies and its principles and criteria have been officially subscribed to by several third countries.

               (3)

               Article 11 of Common Position 2008/944/CFSP states that Member States will use their best endeavours to encourage other arms exporting States to apply the criteria of that Common Position.

               (4)

               The European Security Strategy adopted by Heads of State and Government on 12 December 2003 enunciates five key challenges to be faced by the EU in the post-Cold War environment: terrorism, the proliferation of weapons of mass destruction, regional conflicts, State failure and organised crime. The consequences of the uncontrolled circulation of conventional weapons are central to four of these five challenges. Indeed, the uncontrolled transfer of arms contributes to a worsening of terrorism and organised crime, and is a major factor in triggering and spreading conflicts, as well as in the collapse of State structures. In addition, the Strategy underlines the importance of export controls to contain proliferation.

               (5)

               The International Instrument to Enable States to Identify and Trace, in a Timely and Reliable Manner, Illicit Small Arms and Light Weapons, adopted by the United Nations General Assembly on 8 December 2005, aims to enhance the effectiveness of, and complement, existing bilateral, regional and international agreements to prevent, combat and eradicate the illicit trade in small arms and light weapons in all its aspects.

               (6)

               The EU Strategy to combat illicit accumulation and trafficking of small arms and light weapons (SALW) and their ammunition, adopted by the European Council on 15 and 16 December 2005, provides that the EU should, at regional and international level, support the strengthening of export controls and the promotion of the criteria of the Code of Conduct on Arms Exports, subsequently replaced by Common Position 2008/944/CFSP, by, inter alia, helping third countries to draft national legislation on this and promoting measures to improve transparency.

               (7)

               On 6 December 2006, the United Nations General Assembly, with the support of all Member States of the European Union, adopted Resolution 61/89, entitled ‘Towards an arms trade treaty: establishing common international standards for the import, export and transfer of conventional arms’. In December 2006 and June and December 2007, the Council adopted conclusions underlining that it is important for the EU and Member States to play an active role and cooperate with other States and regional organisations in the process within the United Nations to establish common international standards for the import, export and transfer of conventional arms, which would be a major contribution to tackling the undesirable and irresponsible proliferation of conventional arms which undermines peace, security, development and full respect for human rights.

               (8)

               On 17 March 2008, the Council adopted Joint Action 2008/230/CFSP on support for EU activities in order to promote the control of arms exports and the principles and criteria of the EU Code of Conduct on Arms Exports among third countries (2), the last activity under this Joint Action took place on 27 and 28 October 2009,

         HAS ADOPTED THIS DECISION:
   Article 1
   1.   For the purposes of the practical implementation of:

               —

               the European Security Strategy,

               —

               the EU Strategy to combat illicit accumulation and trafficking of SALW and their ammunition,

               —

               Article 11 of Common Position 2008/944/CFSP,

               —

               the EU Programme for Preventing and Combating Illicit Trafficking in Conventional Arms,

               —

               the International Instrument to Enable States to Identify and Trace, in a Timely and Reliable Manner, Illicit Small Arms and Light Weapons, and,

               —

               the Council Conclusions on a International Arms Trade Treaty,

         the European Union shall support activities in order to further the following objectives:

               (a)

               to promote, among third countries, the criteria and principles of Common Position 2008/944/CFSP;

               (b)

               to assist third countries in drafting and implementing legislation to ensure effective control of arms exports;

               (c)

               to assist third countries in the training of licensing officers to ensure adequate implementation and enforcement of arms export controls;

               (d)

               to assist third countries and regions in the elaboration of national and regional reports on arms exports and the promotion of other forms of scrutiny in order to promote transparency and accountability of arms exports;

               (e)

               to encourage third countries to support the United Nations process aiming at the adoption of a legally binding international treaty establishing common standards for the global trade in conventional arms, and to assist in ensuring that they are in a position to comply with such possible common standards.

         2.   A description of the projects furthering the objectives, as referred to in paragraph 1, is set out in the Annex.
   Article 2
   1.   The High Representative of the Union for Foreign Affairs and Security Policy (HR), shall be responsible for the implementation of this Decision.
   2.   The technical implementation of the projects referred to in Article 1(2) shall be carried out by the following implementing entity:
   The German Federal Office of Economics and Export Control, BAFA.
   3.   The implementing entity shall perform its tasks under the responsibility of the HR. For this purpose, the HR shall enter into necessary arrangements with the implementing agency.
   Article 3
   1.   The financial reference amount for the implementation of the projects referred to in Article 1(2) shall be EUR 787 000.
   2.   The expenditure financed by the amount set out in paragraph 1 shall be managed in accordance with the procedures and rules applicable to the Union’s budget.
   3.   The Commission shall supervise the proper implementation of the EU contribution referred to in paragraph 1 of this Article. For this purpose, it shall conclude a financing agreement with the implementing entity referred to in Article 2(2). The financing agreement shall stipulate that the implementing entity is to ensure visibility of the EU contribution, appropriate to its size.
   4.   The Commission shall endeavour to conclude the financing agreement referred to in paragraph 3 as soon as possible after the entry into force of this Decision. It shall inform the Council of any difficulties in that process and of the date of conclusion of the agreement.
   Article 4
   1.   A factual report on progress achieved in each of the beneficiary countries shall be prepared upon completion of the last workshop and staff exchanges under this Decision by the EU Heads of Mission in each of the beneficiary countries.
   2.   The HR shall report to the Council on the implementation of this Decision, on the basis of regular reports prepared by the implementing entity referred to in Article 2(2) and the Heads of Mission referred to in paragraph 1 of this Article. Reports shall form the basis for the evaluation carried out by the Council. The Commission shall provide information on the financial implementation of the projects as referred to in Article 3(3).
   Article 5
   This Decision shall enter into force on the day of its adoption.
   It shall expire 24 months after the date of conclusion of the financing agreement referred to in Article 3(3), or six months after the date of its adoption if no financing agreement has been concluded within that period.
   Article 6
   This Decision shall be published in the Official Journal of the European Union.

      Done at Brussels, 22 December 2009.

            For the Council

            The President

         A. CARLGREN

      (1)  OJ L 335, 13.12.2008, p. 99.

      (2)  OJ L 75, 18.3.2008, p. 81.

      ANNEX

         Support for EU activities in order to promote the control of arms exports and the principles and criteria of Common Position 2008/944/CFSP among third countries

      I.   Objectives

      The overall objectives of this Decision are:

                  (a)

                  to promote, among third countries, the criteria and principles of Common Position 2008/944/CFSP;

                  (b)

                  to assist third countries in drafting and implementing legislation to ensure effective control of arms exports;

                  (c)

                  to assist countries in the training of licensing officers to ensure adequate implementation and enforcement of arms export controls;

                  (d)

                  to assist countries and regions in the elaboration of national and regional reports on arms exports and the promotion of other forms of scrutiny in order to promote transparency and accountability of arms exports;

                  (e)

                  to encourage third countries to support the United Nations process aiming at the adoption of a legally binding international treaty establishing common standards for the global trade in conventional arms, and to assist in ensuring that they are in a position to comply with such possible common standards.

            II.   Projects

                  Purpose:
                  To provide technical assistance to interested third countries which have demonstrated a willingness to improve their standards and practices in the field of the control of exports of military technology and equipment, and to align their standards and practices to those agreed and applied by European Union Member States, and laid down in Common Position 2008/944/CFSP; and the accompanying User’s Guide.

                  Descriptions and cost estimates:

                              (i)

                              Workshops with groups of countries
                              The project will take the form of 5 two-day workshops to which government, customs and licensing officials from the selected group of countries will be invited. Representatives of the defence industry may also be invited. The workshops may take place in a beneficiary country or in another location determined by the HR. Training in relevant areas will be imparted by experts from EU Member States’ national administrations, from countries that have aligned themselves with Common Position 2008/944/CFSP; from the EU Council Secretariat and/or from the private sector (including NGOs).

                              (ii)

                              Staff exchanges
                              The project will take the form of a maximum of four up to one-month working or study visits of government and/or licensing officials from beneficiary EU candidate countries to the relevant authorities of EU Member States or a maximum of four up to one-month working or study visits of government and/or licensing officials from EU Member States to the relevant authorities of beneficiary countries (1).

            III.   Duration

      The total estimated duration of the implementation of the projects will be 24 months.
      IV.   Beneficiaries

                  First semester 2010:

                              (i)

                              The Western Balkan countries (Albania; Bosnia and Herzegovina; Croatia; the former Yugoslav Republic of Macedonia; Montenegro and Serbia)

                              (ii)

                              The North African Mediterranean partners of the European Neighbourhood Policy (Algeria; Egypt; Libya; Morocco and Tunisia)

                  Second semester 2010:
                  The Eastern European and Caucasian partners of the European Neighbourhood Policy (Armenia; Azerbaijan; Belarus; Georgia; Moldova and Ukraine)

                  First semester 2011:
                  The Western Balkan countries (Albania; Bosnia and Herzegovina, Croatia; the former Yugoslav Republic of Macedonia; Montenegro and Serbia)

                  Second semester 2011:
                  The Eastern European and Caucasian partners of the European Neighbourhood Policy (Armenia; Azerbaijan; Belarus; Georgia; Moldova and Ukraine)

            If unforeseen circumstances make it necessary to amend the list of beneficiaries or the timing of the workshops, the Working Party on Conventional Arms Exports (COARM) may, upon a proposal from the HR, decide to do so.
      Should any of the above countries not wish to take part in the workshop, additional countries may be selected (2) from the following additional partners of the European Neighbourhood Policy: Israel; Jordan; Lebanon; the Palestinian Authority and Syria.
      V.   Impact assessment

      The impact of this Decision and Joint Action 2008/230/CFSP should be technically assessed upon completion of the last workshop and staff exchanges under this Decision. This will be carried out in the form of factual reports on the adoption of relevant legislation, establishment of export control authorities and effective export controls in the beneficiary countries. The reports will be prepared by the EU Heads of Mission in each of the beneficiary countries.

         (1)  The selection of the beneficiaries of staff exchanges shall be agreed upon within the relevant Council Working Party on a proposal from the HR.

         (2)  To be agreed upon within the relevant Council Working Party on a proposal from the HR.


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31988D0022

88/22/EEC: Council Decision of 15 June 1987 concerning the Conclusion of the Protocol for the Accession of the Kingdom of Morocco to the General Agreement on Tariffs and Trade

Official Journal L 010 , 14/01/1988 P. 0027 - 0027 Finnish special edition: Chapter 11 Volume 13 P. 0229  Swedish special edition: Chapter 11 Volume 13 P. 0229

*****COUNCIL  DECISION  of 15 June 1987  concerning the Conclusion of the Protocol for the Accession of the Kingdom of Morocco to the General Agreement on Tariffs and Trade  (88/22/EEC)  THE COUNCIL OF THE EUROPEAN COMMUNITIES,  Having regard to the Treaty establishing the European Economic Community, and in particular Article 113 thereof,  Whereas the Kingdom of Morocco entered into negotiations with the Community and the other Contracting Parties to the General Agreement on Tariffs and Trade with a view to its accession to the General Agreement;  Whereas the outcome of these negotiations is acceptable to the Community,  HAS DECIDED AS FOLLOWS:  Article 1  The Protocol for the Accession of the Kingdom of Morocco to the General Agreement on Tariffs and Trade is hereby approved on behalf of the European Economic Community.  The text of the Protocol is attached to this Decision.  Article 2  The President of the Council is hereby authorized to designate the person empowered to sign the Protocol in order to bind the Community.  Done at Luxembourg, 15 June 1987.  For the Council  The President  P. DE KEERSMAEKER


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31990D0131

90/131/EEC: Council Decision of 26 February 1990 concerning the conclusion of a Cooperation Agreement between the European Economic Community and the Kingdom of Norway in the field of medical and health research

Official Journal L 074 , 20/03/1990 P. 0020

COUNCIL DECISION of 26 February 1990 concerning the conclusion of a Cooperation Agreement between the European Economic Community and the Kingdom of Norway in the field of medical and health research (90/131/EEC) THE COUNCIL OF THE EUROPEAN COMMUNITIES,  Having regard to the Treaty establishing the European Economic Community, and in particular Article 130q (2) thereof,  Having regard to the proposal from the Commission (1),  In cooperation with the European Parliament (2),  Having regard to the opinion of the Economic and Social Committee (3),  Whereas by Decision 87/551/EEC (4), the Council adopted a research and development coordination programme of the Community in the field of medical and health research (1987 to 1991); whereas Article 7 (2) of that Decision authorizes the Commission to  negotiate Agreements with the non- member States participating in European cooperation in the field of scientific and technical research (COST) with a view to associating them wholly or partly with that programme;  Whereas by Decision 87/177/EEC (5), the Council approved the conclusion on behalf of the European Economic Community of the Framework Agreement for scientific and technical cooperation between the European Communities and, among others, the Kingdom of  Norway;  Whereas the Cooperation Agreement between the European Economic Community and the Kingdom of Norway in the field of medical and health research should be approved,  HAS DECIDED AS FOLLOWS:    Article 1 The Cooperation Agreement between the European Economic Community and the Kingdom of Norway in the field of medical and health research is hereby approved on behalf of the Community.  The text of the Agreement is attached to this Decision.  Article 2 The President of the Council shall carry out, on behalf of the Community, the notification as provided for in Article 7 of the Agreement (6).   Done at Brussels, 26 February 1990.  For the Council The President M. SMITH   (1) OJ No C 223, 30. 8. 1989, p. 15. (2) OJ No C 304, 4. 12. 1989, p. 34 and Decision of 14 February 1990 (not yet published in the Official Journal). (3) OJ No C 56, 7. 3. 1990. (4) OJ No L 334, 24. 11. 1987, p. 20. (5) OJ No L 71, 14. 3. 1987, p. 29. (6) The date of entry into force of the Agreement will be published in the Official Journal of the European Communities by the General Secretariat of the Council.


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31999D0703

1999/703/EC, ECSC, Euratom: Commission Decision of 18 August 1999 adjusting the weightings applicable from 1 August, 1 September, 1 October, 1 November and 1 December 1998 to the remuneration of officials of the European Communities serving in third countries (notified under document number C(1999) 2586)

Official Journal L 277 , 28/10/1999 P. 0037 - 0039

COMMISSION DECISIONof 18 August 1999adjusting the weightings applicable from 1 August, 1 September, 1 October, 1 November and 1 December 1998 to the remuneration of officials of the European Communities serving in third countries(notified under document number C(1999) 2586)(1999/703/EC, ECSC, Euratom)THE COMMISSION OF THE EUROPEAN COMMUNITIES,Having regard to the Treaty establishing a single Council and a single Commission of the European Communities,Having regard to the Staff Regulations of officials of the European Communities and the conditions of employment of other servants of the Communities laid down by Regulation (EEC, Euratom, ECSC) No 259/68(1), as last amended by Regulation (EC, Euratom, ECSC) No 2762/98(2) and in particular the second paragraph of Article 13 of Annex X,Whereas, pursuant to the first paragraph of Article 13 of Annex X to the Staff Regulations, Council Regulation (EC, ECSC, Euratom) No 342/99(3) laid down the weightings to be applied from 1 July 1998 to the remuneration of officials serving in third countries, payable in the currency of their country of employment;Whereas the Commission has made a number of adjustments to these weightings(4) in recent months, pursuant to the second paragraph of Article 13 of Annex X to the Staff Regulations;Whereas some of these weightings should be adjusted with effect from 1 August, 1 September, 1 October, 1 November and 1 December 1998 given that the statistics available to the Commission show that in certain third countries the variation in the cost of living measured on the basis of the weighting and the corresponding exchange rate has exceeded 5 % since weightings were last laid down or adjusted,HAS DECIDED AS FOLLOWS:Sole ArticleWith effect from 1 August, 1 September, 1 October, 1 November and 1 December 1998 the weightings applicable to the remuneration of officials serving in third countries payable in the currency of their country of employment are adjusted as shown in the Annex.The exchange rates for the calculation of such remuneration shall be those used for implementation of the general budget of the European Communities for the month preceding the date referred to in the first paragraph.Done at Brussels, 18 August 1999.For the CommissionHans VAN DEN BROEKMember of the Commission(1) OJ L 56, 4.3.1968, p. 1.(2) OJ L 346, 22.12.1998, p. 1.(3) OJ L 43, 17.2.1999, p. 1.(4) OJ L 60, 9.3.1999, p. 83.ANNEX>TABLE>>TABLE>>TABLE>>TABLE>>TABLE>


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31997D0836

97/836/EC: Council Decision of 27 November 1997 with a view to accession by the European Community to the Agreement of the United Nations Economic Commission for Europe concerning the adoption of uniform technical prescriptions for wheeled vehicles, equipment and parts which can be fitted to and/or be used on wheeled vehicles and the conditions for reciprocal recognition of approvals granted on the basis of these prescriptions ('Revised 1958 Agreement')

Official Journal L 346 , 17/12/1997 P. 0078 - 0094

COUNCIL DECISION of 27 November 1997 with a view to accession by the European Community to the Agreement of the United Nations Economic Commission for Europe concerning the adoption of uniform technical prescriptions for wheeled vehicles, equipment and parts which can be fitted to and/or be used on wheeled vehicles and the conditions for reciprocal recognition of approvals granted on the basis of these prescriptions ('Revised 1958 Agreement`) (97/836/EC) THE COUNCIL OF THE EUROPEAN UNION,Having regard to the Treaty establishing the European Community and in particular Articles 100a and 113 thereof, in conjunction with Article 228 (2), first sentence, Article 228 (3) second subparagraph, and Article 228 (4) thereof,Having regard to the proposal by the Commission (1),Having regard to the assent of the European Parliament (2),(1) Whereas, in its Decision of 23 October 1990, the Council authorized the Commission to take part in the negotiations concerning the revision of the United Nations Economic Commission for Europe (ECE) Agreement concerning the adoption of uniform conditions of approval and reciprocal recognition of approval for motor vehicle equipment and parts, done at Geneva on 20 March 1958;(2) Whereas the 1958 Agreement has been revised;(3) Whereas, as a result of the aforementioned negotiations, the Community has the option of becoming a Contracting Party to the Revised Agreement in its capacity as a regional economic integration organization to which its Member States have transferred powers in the area covered by the Agreement;(4) Whereas accession to the Revised Agreement constitutes an aim of common trade policy in accordance with Article 113 of the Treaty to remove technical barriers to trade in motor vehicles between the Contracting Parties; whereas involvement by the Community will add weight to the harmonization activities conducted pursuant to that Agreement and will thus permit easier access to third-country markets; whereas that involvement must result in the establishment of consistency between the instruments referred to as 'Regulations`, adopted under the Revised Agreement, and Community legislation in this area;(5) Whereas the approval of motor vehicles and technical harmonization are conducted on the basis of Directives concerning vehicle systems, components and separate technical units pursuant to Article 100a of the Treaty, which concerns the establishment and functioning of the internal market; whereas, since 1 January 1996 in respect of category M1 vehicles, the harmonization is total and mandatory within the meaning of Council Directive 70/156/EEC of 6 February 1970 on the approximation of the laws of the Member States relating to the type-approval of motor vehicles and their trailers (3) and the separate Directives on this category of vehicle;(6) Whereas accession to the Revised Agreement by the Community requires amendments to instruments adopted in accordance with the procedure provided for in Article 189b of the Treaty; whereas the assent of the European Parliament is therefore required;(7) Whereas the instruments referred to as 'Regulations` adopted within the bodies pursuant to the Revised Agreement will bind the Community on expiry of a six-month period following their notification if the Community has not made known its opposition to them; whereas it should therefore be stipulated that the Community vote concerning such instruments should be preceded by a decision adopted in accordance with the same procedure as that applying to the accession to the Revised Agreement, if those instruments do not simply constitute adaptation to technical progress;(8) Whereas, however, assuming that the adoption of a regulation of this type merely constitutes an adaptation to technical progress, the Community vote may be decided on in accordance with the procedure used for technical adaptations to Directives on vehicle type-approval;(9) Whereas it is appropriate to establish practical arrangements with regard to the involvement of the Community and the Member States in the Revised Agreement;(10) Whereas the Revised Agreement provides for a simplified procedure for its amendment; whereas a form of decision-making at Community level should be instituted which takes account of the constraints of that procedure;(11) Whereas, as required by the Revised Agreement, any new Contracting Party has the option, when lodging its instruments of accession, of declaring concomitantly that it intends not to be bound by certain UN/ECE Regulations of which it must give details; whereas the Community wishes to make use of that provision in order to accede immediately to the list of Regulations considered to be essential to the proper functioning of the vehicle approval system, as defined earlier in Directives 70/156/EEC, 74/150/EEC (4) and 92/61/EC (5), and, in view of their importance as regards the approval of vehicles at Community level and, likewise, at international level, to examine the scope for subsequently acceding to other Regulations on a case-by-case basis;(12) Whereas that accession does not prejudice the option of ceasing to apply the UN/ECE Regulations set out in the list accepted by the Community, as provided for in Article 1 (6) of the Revised Agreement; whereas such ceasing to apply will in particular concern cases where the Community adopts more stringent limit values for pollutant and noise emissions and the corresponding UN/ECE Regulations are not amended accordingly;(13) Whereas, where the Community accedes not to all of the UN/ECE Regulations, but to a defined list of such Regulations considered essential to the proper functioning of the vehicle approval procedure, those Member States subscribing to such Regulations to which the Community does not accede should be permitted to continue to manage and develop those Regulations;(14) Whereas, in pursuance of Article 234 of the Treaty, Member States should ensure that there is currently no incompatibility between the UN/ECE Regulations signed earlier, but to which the Community is not acceding, and the corresponding current Community legislation;(15) Whereas the subscription to UN/ECE Regulations by Member States should not be incompatible with the provisions of Directives 70/156/EEC, 74/150/EEC and 92/61/EEC, and should take account of the procedures of Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations (6);(16) Whereas, under Community rules, it is up to the Member States to implement the obligations deriving from Articles 2, 4 and 5 of the Revised Agreement,HAS DECIDED AS FOLLOWS:Article 1 The Community shall accede to the United Nations Economic Commission for Europe Agreement concerning the adoption of uniform technical prescriptions for wheeled vehicles, equipment and parts which can be fitted to and/or be used on wheeled vehicles and the conditions for reciprocal recognition of approvals granted on the basis of these prescriptions, hereinafter referred to as the 'Revised Agreement`.The text of the Revised Agreement is set out as Annex I to this Decision.Article 2 The President of the Council shall be authorized to designate the person empowered to lodge the instrument of accession as required by Article 6 (3) of the Revised Agreement and to make the notification contained in Annex IV to this Decision.Article 3 1. Pursuant to Article 1 (5) of the Revised Agreement, the Community shall state that its accession will be restricted to implementation of the UN/ECE Regulations listed in Annex II to this Decision.2. Pursuant to Article 1 (6) of the Revised Agreement, the Community may, in accordance with the procedure laid down in the second indent of Article 4 (2) of this Decision, decide to cease to apply a UN/ECE Regulation that it has previously accepted.3. Pursuant to Article 1 (7) of the Revised Agreement, the Community may, in accordance with the procedure laid down in the second indent of Article 4 (2) of this Decision, decide to apply one, some or all of the UN/ECE Regulations to which it has not acceded at the time of its accession to the Revised Agreement.Article 4 1. The practical arrangements with regard to the involvement of the Community and the Member States with regard to the work of the UN/ECE are set out in Annex III.The contribution of the Community with regard to the priorities of the work programme of the UN/ECE shall be established in conformity with the procedure set out in Annex III, point 1.2. The Community shall vote in favour of adopting any draft UN/ECE Regulation or a draft amendment to a Regulation- where, if an existing Regulation to which it has acceded is being adapted to technical progress, the draft has been approved in accordance with the procedure set out in Article 13 of Directive 70/156/EEC,- in all other instances, where on a proposal from the Commission and on receiving the assent of the European Parliament, the Council has approved the draft by a qualified majority.3. Where a UN/ECE Regulation or an amendment to a UN/ECE Regulation is adopted without the Community having voted in favour, the Community shall express an objection in accordance with the second subparagraph of Article 1 (2) of the Revised Agreement.4. On the assumption that the Community votes in favour of a UN/ECE Regulation or amendment to a UN/ECE Regulation, the decision shall also state whether that Regulation shall become part of the EC whole vehicle type-approval system and replace existing law within the Community.5. The UN/ECE Regulations and amendments to UN/ECE Regulations binding on the Community shall be published in the official languages of the Communities in the Official Journal of the European Communities before entering into force.Article 5 1. The proposed amendments to the Revised Agreement submitted to the Contracting Parties on behalf of the Community shall be adopted by the Council acting on a qualified majority, on a proposal from the Commission and having received the opinion of the European Parliament.2. The decision whether to raise an objection, or otherwise, to the proposed amendments to the Revised Agreement put forward by other Contracting Parties shall be taken in accordance with the procedure followed in order to accede to that Agreement. Where that procedure has not been completed a week before expiry of the deadline provided for in Article 13 (2) of the Revised Agreement the Commission will state an objection to the amendment, on behalf of the Community, before that deadline expires.Article 6 Those Member States which will subscribe, or have subscribed, to UN/ECE Regulations to which the Community is not bound may continue to manage and develop those Regulations by adopting amendments reflecting technical progress while ensuring:- that subscription to these Regulations is not incompatible with the provisions of Directives 70/156/EEC, 74/150/EEC and 92/61/EEC, and- that the procedures of Directive 83/189/EEC are observed.Done at Brussels, 27 November 1997.For the CouncilThe PresidentG. WOHLFART(1) OJ C 69, 7. 3. 1996, p. 4.(2) Assent delivered on 21 November 1997 (not yet published in the Official Journal).(3) OJ L 42, 23. 2. 1970, p. 1. Directive as last amended by Directive 96/27/EC (OJ L 169, 8. 7. 1996, p. 1).(4) OJ L 84, 24. 3. 1974, p. 10. Directive as last amended by the 1994 Act of Accession.(5) OJ L 225, 10. 8. 1992, p. 72. Directive as last amended by the 1994 Act of Accession.(6) OJ L 109, 26. 4. 1983, p. 8. Directive as last amended by Commission Decision 96/139/EC (OJ L 32, 10. 2. 1996, p. 31).


title: 2012/163/EU: Commission Decision of 22 March 2012 terminating the anti-dumping proceeding concerning imports of certain stainless steel fasteners and parts thereof originating in India

text:
               23.3.2012

               EN

               Official Journal of the European Union

               L 84/36

         COMMISSION DECISION
   of 22 March 2012
   terminating the anti-dumping proceeding concerning imports of certain stainless steel fasteners and parts thereof originating in India
   (2012/163/EU)
   THE EUROPEAN COMMISSION,
   Having regard to the Treaty on the Functioning of the European Union,
   Having regard to Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (1) (the ‘basic Regulation’), and in particular Article 9 thereof,
   After consulting the Advisory Committee,
   Whereas:
   1.   PROCEDURE

   1.1.   Initiation

               (1)

               On 13 May 2011, the European Commission (‘the Commission’) announced, by a notice published in the Official Journal of the European Union
                   (2) (‘notice of initiation’), the initiation of an anti-dumping proceeding with regard to imports into the Union of certain stainless steel fasteners and parts thereof originating in India (‘the product concerned’).

               (2)

               On the same day, the Commission announced by a notice published in the Official Journal of the European Union
                   (3), the initiation of an anti-subsidy proceeding with regard to imports into the Union of certain stainless steel fasteners and parts thereof originating in India and commenced a separate investigation.

               (3)

               The anti-dumping proceeding was initiated following a complaint lodged on 31 March 2011 by the European Industrial Fasteners Institute EiFi (‘the complainant’) on behalf of producers representing more than 25 % of the total Union production of certain stainless steel fasteners and parts thereof. The complaint contained prima facie evidence of dumping of the said product and of material injury resulting thereof, which was considered sufficient to justify the initiation of an investigation.

         1.2.   Parties concerned by the proceeding

               (4)

               The Commission officially advised the complainant, other known Union producers, the known exporting producers, known importers, users known to be concerned, and the Indian authorities of the initiation of the proceeding. Interested parties were given an opportunity to make their views known in writing and to request a hearing within the time limit set in the notice of initiation.

               (5)

               All interested parties, who so requested and showed that there were particular reasons why they should be heard, were granted a hearing.

         1.2.1.   Sampling for exporting producers in India

               (6)

               In view of the apparent large number of exporting producers in India, sampling was provided for in the notice of initiation for the determination of dumping, in accordance with Article 17(1) of the basic Regulation.

               (7)

               In order to enable the Commission to decide whether sampling would be necessary and, if so, to select a sample, exporting producers in India were requested to make themselves known within 15 days from the date of the initiation of the investigation and to provide basic information on their export and domestic sales, their precise activities with regard to the production and sales of the product concerned and the names and activities of all their related companies involved in the production and sales of the product concerned during the period from 1 April 2010 to 31 March 2011 (‘investigation period’ or ‘IP’).

               (8)

               In total, five exporting producers, including a group of related companies in India, provided the requested information and agreed to be included in the sample within the deadline set in the notice of initiation. These cooperating companies reported exports of the product concerned to the Union during the investigation period. The comparison between Eurostat import data and the volume of exports to the Union of the product concerned reported for the investigation period by the five cooperating companies revealed that the cooperation of Indian exporting producers was close to 100 %. Thus, the sample was chosen on the basis of the information submitted by these five exporting producers.

               (9)

               In accordance with Article 17(1) of the basic Regulation, a sample was selected based on the largest representative volume of exports of the product concerned to the Union which could reasonably be investigated within the time available. On the basis of the information received from the exporting producers, the Commission selected a sample of three exporting producers having the largest volume of exports to the Union. Based on the sampling information, the selected companies or groups accounted for 99 % of the total volume of exports to the Union of the product concerned in the IP reported by the cooperating exporting producers. It was therefore considered that such a sample would allow to limiting the investigation to a reasonable number of exporting producers which could be investigated within the time available while ensuring a high level of representativeness.

         1.2.2.   Selection of the sample of cooperating exporting producers in India

               (10)

               In accordance with Article 17(1) of the basic Regulation, the parties concerned and the Indian authorities were consulted on the selection of the sample. The two non-sampled exporting producers insisted to be also included in the sample. However, in view of the representativity of the proposed sample, as mentioned in recital (8) above, it was concluded that it was not necessary to amend or enlarge the sample.

         1.2.3.   Individual examination of companies not selected in the sample

               (11)

               Two co-operating exporting producers, which were not included in the sample requested individual examination and replied to the anti-dumping questionnaire within the time limit.

               (12)

               Given the conclusion that the present anti-dumping proceeding should be terminated for the reasons mentioned further below, the requests for individual examination were not further considered.

         1.2.4.   Sampling of Union producers

               (13)

               In view of the apparent large number of Union producers, sampling was provided for in the Notice of initiation for the determination of injury, in accordance with Article 17 of the basic Regulation.

               (14)

               In the Notice of initiation the Commission announced that it had provisionally selected a sample of Union producers. This sample consisted of five companies, out of the 15 Union producers that were known prior to the initiation of the investigation, selected on the basis of their sales volume, size and geographic location in the Union. They represented 37 % of the total estimated Union production during the IP. Interested parties were invited to consult the file and to comment on the appropriateness of this choice within 15 days of the date of publication of the Notice of initiation. No interested party opposed to the proposed sample composed of five companies.

               (15)

               Subsequently one of the five sampled Union producers withdrew its cooperation. The remaining four sampled companies represented 31 % of the total estimated Union production during the IP. Hence the sample was considered to be representative of the Union industry.

         1.2.5.   Sampling of unrelated importers

               (16)

               In view of the potentially large number of importers involved in the proceeding, sampling was envisaged for importers in the notice of initiation in accordance with Article 17 of the basic Regulation. Two importers provided the requested information and agreed to be included in the sample within the deadline set in the notice of initiation. Given the low number of importers who made themselves known, it was decided not to apply sampling.

         1.3.   Questionnaire replies and verifications

               (17)

               The Commission sent questionnaires to all parties known to be concerned and to all other parties that made themselves known within the deadline set out in the notice of initiation. Questionnaires were thus sent to the sampled exporting producers in India, the sampled Union producers, the cooperating importers in the Union and to all users known to be concerned by the investigation.

               (18)

               Replies were received from the sampled exporting producers and four sampled Union producers. None of the importers or users replied to the questionnaire.

               (19)

               The Commission sought and verified all the information provided by interested parties and deemed necessary for the determination of dumping, resulting injury and Union interest.

               (20)

               One party claimed that one of the exporting producers made too many claims for confidentiality and did not provide a sufficiently meaningful public version of its questionnaire response. Hence, the information submitted by this company should not be taken into consideration and it should be treated as a non-cooperative party in the investigation.

               (21)

               The non-confidential version of the reply of this exporting producer however, consisting of an initial reply and a completed version based on a deficiency letter, has once more been assessed and found to be sufficiently complete to qualify as a meaningful public reply. This claim was therefore rejected.

               (22)

               Verification visits were carried out at the premises of the following parties:

                           Producers in the Union:

                                       —

                                       Inox Viti di Cattinori Bruno & C.s.n.c., Grumello del Monte, Italy;

                                       —

                                       Bontempi Vibo S.p.A., Rodengo Saiano, Italy;

                                       —

                                       Ugivis S.A., Belley, France

                           Exporting producers in India:

                                       —

                                       Viraj Profiles Limited, Boisar, Dist. Thane, Maharashtra

                                       —

                                       Agarwal Fastners Pvt. Ltd., Vasai (East), Dist. Thane, Maharashtra

                                       —

                                       Raajratna Ventures Ltd., Ahmedabad, Gujarat

         1.4.   Investigation period

               (23)

               The investigation of dumping and injury covered the period from 1 April 2010 to 31 March 2011. The examination of trends relevant for the assessment of injury covered the period from January 2008 to the end of the IP (‘period considered’).

         2.   PRODUCT CONCERNED AND LIKE PRODUCT

   2.1.   Product concerned

               (24)

               The product concerned is stainless steel fasteners and parts thereof (‘SSF’) originating in India, currently falling within CN codes 7318 12 10, 7318 14 10, 7318 15 30, 7318 15 51, 7318 15 61 and 7318 15 70.

         2.2.   Like product

               (25)

               The product concerned and the product produced and sold on the domestic market of India as well as the product produced and sold on the Union market by the Union industry were found to have the same basic physical, chemical and technical characteristics as well as the same basic uses. They were therefore considered to be alike within the meaning of Article 1(4) of the basic Regulation.

         3.   DUMPING

   3.1.   Normal value

               (26)

               For the determination of normal value in accordance with Article 2(2) of the basic Regulation, the Commission first established whether the domestic sales of the like product of the sampled Indian exporting producers to independent customers were made in representative volumes, i.e. whether the total volume of such sales represented at least 5 % of their total export sales volume to the Union during the IP.

               (27)

               In the case of one sampled exporting producer it was found that it had no representative sales of the like product on the domestic market. For this exporting producer, normal value had to be constructed on the basis of Article 2(3) of the basic Regulation.

         3.1.1.   Sampled cooperating exporting producers with overall representative domestic sales volume

               (28)

               For the sampled exporting producers with overall representative domestic sales, the Commission subsequently identified those product types sold on the domestic market by the exporting producers, which were identical or directly comparable to the types sold for export to the Union.

               (29)

               Domestic sales of a particular product type were considered as sufficiently representative when the volume of that product type sold on the domestic market to independent customers during the IP represented 5 % or more of the total volume of the comparable product type sold for export to the Union.

               (30)

               The Commission subsequently examined whether the domestic sales of the companies concerned could be considered as being made in the ordinary course of trade pursuant to Article 2(4) of the basic Regulation. This was done by establishing for each product type the proportion of profitable sales to independent customers on the domestic market during the investigation period.

               (31)

               Where the sales volume of a product type, sold at a net sales price equal to or above the calculated cost of production, represented more than 80 % of the total sales volume of that type, and where the weighted average price of that type was equal to or above the cost of production, normal value was based on the actual domestic price. This price was calculated as a weighted average of the prices of all domestic sales of that type made during the IP, irrespective of whether these sales were profitable or not.

               (32)

               Where the volume of profitable sales of a product type represented 80 % or less of the total sales volume of that type, or where the weighted average price of that type was below the cost of production, normal value was based on the actual domestic price, calculated as a weighted average of profitable sales of that type only.

               (33)

               For product types not sold in representative quantities on the domestic market, normal value had to be constructed on the basis of Article 2(3) of the basic Regulation. To this end, the selling, general and administrative (‘SG&A’) expenses and a reasonable profit margin were added to the exporter's own average cost of manufacturing per product type during the IP. In accordance with Article 2(6) of the basic Regulation, the percentage for SG&A and profit margin were based on the weighted average SG&A and profit margin of sales of each product type in the ordinary course of trade of the respective exporting producer.

         3.1.2.   Sampled cooperating exporting producer without overall representative domestic sales volume

               (34)

               For the cooperating exporting producer without representative domestic sales, normal value was constructed in accordance with Article 2(3) of the basic Regulation by adding to the company's own manufacturing costs for the like product the SG&A expenses and a reasonable profit margin per product type during the IP. In accordance with Article 2(6) of the basic Regulation, the percentage for SG&A and profit margin were based on the weighted average SG&A and profit margin of sales of each product type in the ordinary course of trade of the exporting producer.

         3.2.   Export price

               (35)

               Export sales prices were established on the basis of the prices actually paid or payable for the product concerned in accordance with Article 2(8) of the basic Regulation.

         3.3.   Comparison

               (36)

               The comparison between normal value and export price was made on an ex-works basis.

               (37)

               For the purpose of ensuring a fair comparison between the normal value and the export price, due allowance in the form of adjustments was made for differences affecting prices and price comparability in accordance with Article 2(10) of the basic Regulation.

               (38)

               On this basis, allowances for transport, ocean freight and insurance costs, handling loading and ancillary costs, packing costs, credit costs, discounts not mentioned on the invoice and commissions have been made where applicable and justified.

         3.4.   Dumping margins

   3.4.1.   For the sampled cooperating exporting producers

               (39)

               For the sampled companies, the weighted average normal value of each type of the product concerned exported to the Union was compared with the weighted average export price of the corresponding type of the product concerned, as provided for in Article 2(11) and (12) of the basic Regulation.

               (40)

               On this basis of the above methodology the dumping margins, expressed as a percentage of the CIF Union frontier price, duty unpaid, are the following:

                           Company

                           Dumping margin

                           Viraj Profiles Ltd.

                           0 %

                           Agarwal Fasteners Pvt. Ltd.

                           37,6 %

                           Raajratna Ventures Ltd.

                           12,0 %

               (41)

               However, it should be noted that the Indian exporting producer, for which no dumping was found, represented 87 % of Indian exports to the Union.

               (42)

               Based on its analysis of the Commission's disclosure document, the complainant calculated a difference of 25 % between the normal value established for the exporting producers in the sample found to be dumping and the company not found to be dumping. The complainant argued that such a difference cannot exist on a competitive market and is not realistic for the stainless steel fasteners industry. Moreover, the complainant alleged that the exporting producer not found to be dumping procured stainless steel scrap from related companies in the Union and that as a consequence the purchase prices of this raw material were not reliable for the determination of the cost of production.

               (43)

               The normal value for the cooperating exporter not found to be dumping has been based on its cost of production per product type which is lower than for the other sampled exporting producers. This results mainly from the fact that the former company produces stainless steel itself from stainless steel scrap, and is therefore fully integrated and benefits from economies of scale, while the latter companies purchase stainless steel wire rod, the main raw material for production of stainless steel fasteners, in the open market, including from the cooperating exporter not found to be dumping.

               (44)

               The normal value for the cooperating exporting producers found to be dumping has been mostly determined based on the domestic sales prices per product type. There is only limited competition on India's domestic market and the cooperating exporter not found to be dumping only sold unrepresentative quantities during the IP domestically.

               (45)

               With regard to the procurement of stainless steel scrap by the exporting producer not found to be dumping, the investigation showed that this company obtained scrap from both related and unrelated suppliers, the latter representing more than 70 % of the quantities obtained. The purchase price levels for both types of procurement were comparable, also when taking the type of scrap grade into account.

               (46)

               As a consequence, the normal value determination of the sampled exporting producers is confirmed and the claims made by the complainant have been rejected.

         3.4.2.   For the other cooperating exporting producers

               (47)

               The weighted average dumping margin of the cooperating exporting producers not included in the sample was calculated in accordance with the provisions of Article 9(6) of the basic Regulation, on the basis of the margins established for the sampled exporting producers who were found to be dumping. On this basis, the dumping margin calculated for the cooperating companies not included in the sample was set at 24,6 % of the CIF Union frontier price, duty unpaid.

               (48)

               One cooperating Indian exporting producer, after disclosure of the Commission's intention to terminate the proceeding, insisted that its request for individual examination should be accepted, arguing that the dumping margin disclosed for cooperating exporting producers not included in the sample did not reflect its situation.

               (49)

               The request for individual examination has not been assessed by the Commission since in case of termination the margin determination ceases to be an issue.

         3.4.3.   For the non-cooperating exporting producers

               (50)

               With regard to all other exporters in India, the Commission first established the level of cooperation. A comparison was made between the total export quantities indicated in the sampling replies received from all cooperating exporting producers and the total imports from India as derived from Eurostat statistics. The percentage of cooperation found was 97 %. On this basis, the level of cooperation was deemed to be high. It was considered appropriate to set the dumping margin for the non-cooperating exporting producers at the level corresponding to the average dumping margin established for the sampled cooperating exporting producers. Indeed information available suggests that the average export prices of the non-cooperating Indian exporters in the IP were in line with those found for the cooperating exporting producers. In addition there are no indications available that would point to different normal values for the non-cooperating exporting producers.

               (51)

               On this basis, the country-wide level of dumping was established at 24,6 % of the CIF Union frontier price, duty unpaid.

         4.   UNION INDUSTRY

   4.1.   Union production

               (52)

               All available information concerning Union producers, including information provided in the complaint, data collected from Union producers before and after the initiation of the investigation, and the verified questionnaire responses of the sampled Union producers, was used in order to establish the total Union production.

               (53)

               On that basis, the total Union production was estimated to be around 52 000 tonnes during the IP. This figure includes the production of all Union producers that made themselves known and the estimated production volume of producers that did not come forward in the proceeding.

               (54)

               As indicated in recital (13) above, sampling was applied for investigating Union producers. Of the 15 Union producers who provided data prior to the initiation of the proceeding, a sample of five companies was selected. Subsequently, as explained in recital (15) above, one company decided not to cooperate in the investigation. The remaining cooperating sampled companies represented around 32 % of the total estimated Union production during the IP and were deemed to be representative of the Union industry.

         4.2.   Union industry

               (55)

               All known Union producers referred to in recital (52) above are deemed to constitute the Union industry within the meaning of Article 4(1) and Article 5(4) of the basic Regulation and will hereinafter be referred to as the ‘Union industry’

         5.   INJURY

   5.1.   Preliminary remarks

               (56)

               The relevant Eurostat import statistics, together with data provided in the complaint and data collected from Union producers before and after the initiation of the investigation, including the verified questionnaire responses of the sampled Union producers were used also in the evaluation of the relevant injury factors.

               (57)

               The injury analysis with regard to macroeconomic data, such as production capacity, capacity utilization, sales volume, market share, growth, employment and productivity is based on the data of the Union industry as a whole.

               (58)

               The injury analysis with regard to microeconomic data such as transaction prices, profitability, cash flow, investment and return on investment, ability to raise capital, stocks, and wages, is based on the data of the sampled Union producers.

               (59)

               The four sampled Union producers were also sampled in the expiry review of the anti-dumping measures applicable to imports of SSF originating in China and Taiwan, concluded on 7 January 2012 (4). In that review one other company, which was not sampled in the present investigation, was included in the sample. Given that the period considered for the injury analysis overlaps with that of the expiry review, data for the years 2008 and 2009 are identical except for that of one company. By disclosing figures for 2008 and 2009 it would be possible to deduce the figures of the company which was not included in the sample in the present case. Therefore, micro indicators such as stocks, wages, investments, cash flow, return on investments and profitability have been indexed.

         5.2.   Union consumption

               (60)

               Union consumption was established on the basis of the sales volume of the Union industry in the Union as provided in the complaint and cross checked by the replies to the sampling questionnaires and the verified data obtained from the sampled producers. In addition, the volume of imports based on data from Eurostat for the period considered was also taken into account.

               (61)

               On this basis the Union consumption developed as follows:

                  Table 1

                           2008

                           2009

                           2010

                           IP

                           Union consumption (tonnes)

                           120 598

                           101 143

                           122 345

                           131 457

                           Index (2008 = 100)

                           100

                           84

                           101

                           109

                              Source: Eurostat, complaint data and questionnaire replies.

               (62)

               Total consumption on the EU market increased by 9 % during the period considered. Between 2008 and 2009 there was a drastic decrease by 16 %, allegedly due to the global negative effects of the economic crisis on the market, after which consumption recovered again by 21 % between 2009 and 2010 and further by 7 % between 2010 and the IP.

         5.3.   Imports from the India

               (63)

               Imports into the Union from India developed as follows during the period considered:

                  Table 2

                           2008

                           2009

                           2010

                           IP

                           Volume of imports from India (tonnes)

                           14 546

                           18 883

                           21 914

                           24 072

                           Index (2008 = 100)

                           100

                           130

                           151

                           165

                           Market share

                           12,1 %

                           18,7 %

                           17,9 %

                           18,3 %

                           Index (2008 = 100)

                           100

                           155

                           149

                           152

                              Source: Eurostat and questionnaire replies from exporting producers.

               (64)

               Imports from India increased significantly by 65 % over the period considered. This increase was strongest between 2008 and 2009 when imports surged by 30 % and when consumption decreased by 16 %. On a year to year basis, Indian imports continued to increase during 2010 (+16 %) and during the IP (+10 %).

         5.4.   Prices of imports and price undercutting

      Table 3

               2008

               2009

               2010

               IP

               Average import price in EUR/tonne

               3 531

               2 774

               2 994

               3 216

               Index (2008 = 100)

               100

               79

               85

               91

                  Source: Eurostat and questionnaire replies from sampled EU producers.

               (65)

               Average prices of imports from India decreased overall by 9 % during the period considered. This explains the increase in the market share of India from 12,1 % to 18,3 % over the same period. The highest increase occurred between 2008 and 2009, when Indian exporters gained more than 6 percentage points of market share.

               (66)

               In order to determine price undercutting during the IP, the weighted average sales prices per product type of the sampled Union producers charged to unrelated customers on the Union market, adjusted to an ex-works level, were compared to the corresponding weighted average prices of the imports from India to the first independent customer on the Union market, established on a CIF basis, with appropriate adjustments for the existing customs duties and post-importation costs.

               (67)

               The price comparison was made on a type-by-type basis for transactions at the same level of trade, duly adjusted where necessary, and after deduction of rebates and discounts. The result of the comparison, when expressed as a percentage of the sampled Union producers' turnover during the IP, showed price undercutting ranging between 3 % and 13 %. It should be noted in this respect that the Indian exporting producer not found to be dumping had the highest undercutting margin.

         5.5.   Economic situation of the Union industry

               (68)

               In accordance with Article 3(5) of the basic Regulation, the examination of the impact of dumped imports on the Union industry included an evaluation of all economic indicators established for the Union industry over the period analysed.

         5.5.1.   Production capacity, production and capacity utilisation

      Table 4

               2008

               2009

               2010

               IP

               Production volume (tonnes)

               69 514

               56 396

               62 213

               51 800

               Index (2008 = 100)

               100

               81

               89

               75

               Production capacity (tonnes)

               140 743

               127 200

               128 796

               111 455

               Index (2008 = 100)

               100

               90

               92

               79

               Capacity utilisation

               49 %

               44 %

               48 %

               46 %

               Index (2008 = 100)

               100

               90

               98

               94

                  Source: Total Union industry.

               (69)

               The table above shows that production decreased significantly by 25 % over the period considered. In line with a decrease in demand, production decreased sharply by 19 % in 2009, after which it recovered by around 10 % in 2010. In the IP, although the Union consumption increased by 7 %, Union production decreased again by around 17 % compared to the previous year.

               (70)

               The production capacity of the Union industry decreased by around 21 % over the period considered. Capacity utilisation also decreased over the period considered, constantly remaining below 50 %.

         5.5.2.   Sales volume and, market share

      Table 5

               2008

               2009

               2010

               IP

               Sales volume (tonnes)

               56 042

               44 627

               45 976

               48 129

               Index (2008 = 100)

               100

               80

               82

               86

               Market share

               46,5 %

               44,1 %

               37,6 %

               36,6 %

               Index (2008 = 100)

               100

               95

               81

               79

                  Source: Total Union industry

               (71)

               In the context of an increasing consumption (+ 9 %), sales volume of the like product when sold to the first independent customer in the Union decreased by 14 % over the period considered. Consequently market share dropped from 46,5 % in 2008 to 36,6 % in the IP. After a sharp decrease i in 2009 (– 20 %), sales volume recovered slightly in 2010 and in the IP.

         5.5.3.   Growth

               (72)

               Union consumption increased by 9 % between 2008 and the IP. However, sales volume and market share of the Union industry decreased in the same period, by 14 % and 21 % respectively. At the same time imports from India increased significantly by 65 %.

         5.5.4.   Employment

      Table 6

               2008

               2009

               2010

               IP

               Number of employees

               1 007

               863

               821

               761

               Index (2008 = 100)

               100

               86

               82

               76

               Productivity (unit/employee)
               Index (2008 = 100)

               100

               95

               110

               99

                  Source: Total Union industry

               (73)

               Due to the downsizing activities of the Union industry, the number of employees was reduced accordingly during the period considered by 24 %. Between 2008 and the IP labour costs per employee increased by 6 %.

               (74)

               Productivity of the Union industry workforce, measured as output per person employed per year, decreased slightly by 1 % over the period considered. It reached its lowest level in 2009, after which it started to recover towards the IP.

         5.5.5.   Average unit prices in the Union

      Table 7

               2008

               2009

               2010

               IP

               Unit price in EU to unrelated customers (Euro per tonne)

               4 336

               2 792

               3 914

               4 244

               Index (2008 = 100)

               100

               64

               90

               98

                  Source: questionnaire replies sampled producers

               (75)

               Average sales prices decreased by 2 % over the period considered. In 2009 the Union industry was forced to reduce its sales prices by 36 %, in the context of the economic downturn and of a sharp decrease of import prices from India (– 21 %). During 2010 and the IP the Union industry sales prices recovered again.

               (76)

               The investigation showed that the decrease in sales prices in 2009 reflected the decrease in costs which dropped by 18 % compared to 2008 levels. This decrease in costs was mainly due to the decrease in raw material prices, especially those of nickel, which has an unstable price dynamic. However, the Union industry was forced to decrease its sales prices more than the decrease in costs, in view of the expansion of the low-priced Indian imports in 2009.

         5.5.6.   Profitability, cash flow, investments, return on investments and ability to raise capital

      Table 8

               2008

               2009

               2010

               IP

               Profitability of EU sales (% of net sales)
               Index (2008 = 100)

               – 100

               – 442

               –74

               –24

               Cash Flow
               Index (2008 = 100)

               – 100

               –1 827

               –40

               – 171

               Investments (EUR)
               Index (2008 = 100)

               100

               29

               59

               6

               Return on Investments
               Index (2008 = 100)

               – 100

               – 284

               –59

               –28

                  Source: Questionnaire replies sampled EU producers

               (77)

               The investigation showed that, even if the decrease in sales prices partly reflected the decrease in costs, the price of the Union industry was under pressure by the imports of SSF from India. The profitability of the Union industry was negative since the beginning of the period concerned. Especially in 2009 the Union industry was forced to decrease its sales prices more than the decrease in costs, in view of the expansion of the low-priced Indian imports. This lead to a significant deterioration of profitability in that year. However, in 2010 and the IP profitability improved, but it still remained negative.

               (78)

               Cash flow, which is the ability of the industry to self-finance its activities, followed a similar trend as profitability. It reached its lowest level in 2009, after which it showed an increasing trend and turned positive in the IP.

               (79)

               After making investments in 2008 in the production of SSF, investments decreased by about 94 % during the period considered. The return on investment showed a similar negative development in line with the negative results achieved by the Union industry over the period considered and remained always negative.

               (80)

               The evolution of profitability, the cash flow and the low level of investments points to the fact that the sampled EU producers may have experienced difficulties to raise capital.

         5.5.7.   Stocks

      Table 9

               2008

               2009

               2010

               IP

               Closing stock of Union industry

                  Index (2008 = 100)

               100

               92

               100

               103

                  Source: Questionnaire replies sampled EU producers

               (81)

               The stock level of the sampled Union industry increased by 3 % during the period considered. In 2009 the level of closing stock decreased by 8 %; afterwards, in 2010 and in the IP it increased by 8 % and 3 % respectively.

         5.5.8.   Magnitude of the actual margin of dumping and recovery from past dumping

               (82)

               It is recalled that the largest Indian exporting producer representing 87 % of the Indian exports to the Union in the IP was found not to be dumping. Consequently dumped imports accounted for 13 % of the total volume of SSF exported from India to the Union. Given the volume, market share and prices of the dumped imports from India, the impact on the Union industry of the actual dumping margins may be considered to be negligible.

         5.6.   Conclusion on injury

               (83)

               The investigation showed that most injury indicators such as production (– 25 %), capacity utilisation (– 6 %), sales volume (– 14 %), market share (– 21 %), and employment (– 24 %) deteriorated during the period considered. In the context of an increasing consumption, both sales volume and market share dropped. Sales volume recovered slightly in 2010 and the IP when compared to 2009; however, the Union industry was unable to regain its lost market share in view of the expansion of the Indian imports which increased steadily over the period considered, at prices constantly undercutting those of the Union industry.

               (84)

               Furthermore, the injury indicators related to the financial performance of the Union industry, such as cash flow and profitability were seriously affected. This means that the ability of the Union industry to raise capital was undermined.

               (85)

               In the light of the foregoing, it was concluded that the Union industry suffered material injury within the meaning of Article 3(5) of the basic Regulation.

         6.   CAUSATION

   6.1.   Introduction

               (86)

               In accordance with Article 3(6) and Article 3(7) of the basic Regulation, it was examined whether the dumped imports originating in India have caused injury to the Union industry to a degree that enables it to be classified as material. Known factors other than the dumped imports, which could at the same time be injuring the Union industry, were also examined to ensure that possible injury caused by these other factors was not attributed to the dumped imports.

               (87)

               It is recalled, that the largest Indian exporting producer, referred to in recitals (40) and (41), accounting for 87 % of Indian exports to the Union in the IP was found not to be dumping. Therefore, a mere 13 % of the Indian exports of the product concerned to the Union during the IP were made at dumped prices. These dumped imports had a market share of 2 % in the IP.

         6.2.   Effect of the dumped imports

               (88)

               The investigation showed that the Union consumption increased by 9 % over the period considered, while sales volume of the Union industry decreased by 14 % and market share dropped by 21 %.

               (89)

               With regard to prices, the average import prices of the dumped imports were found to undercut the average sales prices of the Union industry on the Union market. However, they were around 12 % higher than the prices of the Indian company not found to the dumping.

               (90)

               Based on the above it is considered that the limited import volume of the dumped imports from India, which had higher prices than the non-dumped imports, may only have played a very limited role, if any, in the deterioration of the situation of the Union industry.

         6.3.   Effect of other factors

   6.3.1.   Non- dumped imports from India

               (91)

               The total volume of imports from India increased dramatically by 65 % over the period considered, increasing their market share from 12,1 % to 18,3 %. However, as explained above, non-dumped imports represented 87 % of the total Indian export volume in the IP, corresponding to a market share of 15 % in the IP, as opposed to the market share of 2 % of the dumped imports from India in the same period.

               (92)

               Prices of imports from India decreased overall by 9 % in the period considered, remaining always lower than import prices from the rest of the world and sales prices of the Union industry. It is noteworthy, however, that as explained in recital (89), the average prices of the non-dumped imports were found to undercut the prices of the Union industry more than those of the dumped imports.

         6.3.2.   Imports from other third countries

      Table 10

               2008

               2009

               2010

               IP

               Volume of imports from other third countries in tonnes

               50 010

               37 633

               54 454

               59 255

               Index (2008 = 100)

               100

               75

               109

               118

               Market share of imports from other third countries

               41,5 %

               37,2 %

               44,5 %

               45,1 %

               Index (2008 = 100)

               100

               90

               107

               109

               Average price of imports from other third countries in EUR/tonne

               5 380

               5 236

               5 094

               5 234

               Index (2008 = 100)

               100

               97

               95

               97

               Volume of imports from Malaysia (tonnes)

               13 712

               9 810

               9 611

               9 966

               Market share of imports from Malaysia

               11,4 %

               9,7 %

               7,9 %

               7,6 %

               Average price of imports from Malaysia in EUR/ tonne

               4 203

               2 963

               3 324

               3 633

               Volume of imports from Philippines (tonnes)

               7 046

               5 406

               15 576

               18 149

               Market share of imports from Philippines

               5,8 %

               5,3 %

               12,7 %

               13,8 %

               Average price of imports from Philippines in EUR/tonne

               4 645

               3 474

               3 714

               3 912

               Volume of imports from the People's Republic of China (tonnes)

               2 332

               2 452

               3 217

               3 288

               Market share of imports from the People's Republic of China

               1,9 %

               2,4 %

               2,6 %

               2,5 %

               Average price of imports from the People's Republic of China in EUR/tonne

               4 004

               4 561

               5 272

               5 648

               Volume of imports from Taiwan (tonnes)

               4 304

               3 703

               6 451

               6 640

               Market share of imports from Taiwan

               3,6 %

               3,7 %

               5,3 %

               5,1 %

               Average price of imports from Taiwan in EUR/tonne

               5 092

               4 719

               4 755

               4 943

                  Source: Eurostat

               (93)

               Based on Eurostat data, the volume of imports into the Union of SSF originating in other third countries increased by 18 % during the period considered. At the same time, average import prices decreased by about 3 % during the period considered and their market share increased by about 9 %.

               (94)

               There have been anti-dumping measures in force on imports of SSF from the People's Republic of China and Taiwan as of 19 November 2005. Despite the measures, imports from these two countries have increased significantly over the period considered, although market shares remained rather modest, at 2,5 % and 5,1 % respectively in the IP. Other main sources of imports are the Philippines and Malaysia. Imports especially from the Philippines increased significantly over the period considered, increasing their market share from 5,8 % in 2008 to 13,8 % in the IP.

               (95)

               As regards Malaysia, there was a decreasing trend over the period considered, however, imports still had a market share of 7,6 % in the IP. Import volume from the Philippines increased significantly during the period considered. However, as it emerged from the investigation the average import price from the Philippines was much higher, namely, about 20 %, than the average price of the Indian SSF.

               (96)

               With regard to import prices, the overall average prices of imports from other third countries remained relatively stable over the period considered and were always above the average sales prices of the Union industry and the average import prices from India.

               (97)

               On the basis of the above, it was concluded that imports from other third countries did not cause the material injury suffered by the Union industry.

         6.3.3.   Economic crisis

               (98)

               The economic crisis partially explains the contraction of the Union consumption in 2009. However, it is noteworthy that despite the decrease of 16 % in consumption in 2009, the volume of Indian imports increased by 30 %.

               (99)

               In 2010 and the IP Union consumption increased in line with the general economic recovery. However, sales volume of the Union industry increased only slightly, by 3 % in 2010 and by 4,7 % in the IP This compares to an annual increase in Indian imports by 16 % and 10 % respectively.

               (100)

               Under normal economic conditions and in the absence of strong price pressure and increased import levels from India, the Union industry might have had some difficulty in coping with the decrease in consumption and the increase in fixed costs per unit due to the decreased capacity utilisation it experienced. However, the low-priced Indian imports, majority of which were found not to be dumped, have intensified the effect of the economic downturn and even during the general economic recovery, the Union industry was unable to recover and to regain the market share lost to the Indian imports.

               (101)

               Therefore, although the economic crisis 2008-2009 may have contributed to the Union industry's poor performance, it cannot be considered to have a material impact on the injurious situation of the Union industry.

         6.3.4.   Export performance of the sampled Union industry

      Table 12

               2008

               2009

               2010

               IP

               Export sales in tonnes

               967

               689

               933

               884

               Index (2008 = 100)

               100

               71

               97

               91

               Unit selling price in euro

               4 770

               3 060

               4 020

               4 313

               Index (2008 = 100)

               100

               64

               84

               90

                  Source: Questionnaire replies sampled EU producers

               (102)

               During the period considered the volume of export sales of the sampled Union industry decreased by 9 % while average export prices dropped by 10 %. While it cannot be excluded that the negative trend in the export performance may have had a further negative impact on the Union industry, it is considered that, given the low volume of exports in relation to sales on the Union market, this impact was not material in respect of the injury found.

         6.4.   Conclusion on causation

               (103)

               The above analysis demonstrated that there was a substantial increase over the period considered in the volume and market share of the low-priced imports originating in India. It was also found that these imports were constantly undercutting the prices charged by the Union industry on the Union market.

               (104)

               However, in view of the finding that the largest Indian exporting producer, which represented 87 % of the Indian exports to the Union in the IP did not export SSF to the Union at dumped prices, it is considered that a causal link between the dumped imports, accounting for a mere 13 % of the total quantity exported from India, and the injury suffered by the Union industry cannot be sufficiently established. Indeed, it cannot be argued that the dumped Indian exports, in view of their limited volume and very limited market share (2 %) and the fact that their prices were on average 12 % higher than those of the non-dumped imports, would be causing the injury suffered by the Union industry.

               (105)

               The analysis of the other known factors, which could have caused injury to the Union industry, including the non-dumped imports, imports from other third countries, the economic crisis and the export performance of the sampled Union industry showed that the injury suffered by the Union industry appears to be due to the impact of the non-dumped imports from India which represented 87 % of all Indian exports to the Union in the IP and which were made at significantly lower prices than the dumped imports.

         7.   TERMINATION OF THE ANTI-DUMPING PROCEEDING

               (106)

               In the absence of a material causal link between the dumped imports and the injury suffered by the Union industry, it is considered that anti-dumping measures are unnecessary and therefore the present anti-dumping proceeding should be terminated in accordance with Article 9(2) of the basic Regulation.

               (107)

               The complainant and all other interested parties were informed accordingly and were given the opportunity to comment. The comments received did not alter the conclusion that the present anti-dumping proceeding should be terminated,

         HAS ADOPTED THIS DECISION:
   Article 1
   The anti-dumping proceeding concerning imports of certain stainless steel fasteners and parts thereof, currently falling within CN codes 7318 12 10, 7318 14 10, 7318 15 30, 7318 15 51, 7318 15 61 and 7318 15 70, originating in India, is hereby terminated.
   Article 2
   This Decision shall enter into force on the day following its publication in the Official Journal of the European Union.

      Done at Brussels, 22 March 2012.

            For the Commission

            The President

         José Manuel BARROSO

      (1)  OJ L 343, 22.12.2009, p. 51.

      (2)  OJ C 142, 13.5.2011, p. 30.

      (3)  OJ C 142, 13.5.2011, p. 36.

      (4)  OJ L 5, 7.1.2012, p. 1.


title: Council Decision of 20 July 1976 replacing a resigning member of the Scientific and Technical Committee

text:
24 . 7 . 76                      Official Journal of the European Communities                       No L 199 /45
                                             COUNCIL DECISION
                                                  of 20 July 1976
               replacing a resigning member of the Scientific and Technical Committee
                                                  (76/61 8 / Euratom)
            THE COUNCIL OF THE EUROPEAN COMMUNITIES,
            Having regard to the Treaty establishing the European Atomic Energy Community, and
            in particular Article 134 thereof,
            Having regard to the Council Decision of 15 October 1973 renewing the membership of
            the Scientific and Technical Committee ,
            Having regard to the opinion of the Commission ,
            Whereas the seat of a member of the Scientific and Technical Committee has become
            vacant as a result of the resignation of Mr R. Baumgartner, communicated to the Council
            in a letter from the French Government dated 9 March 1976,
            HAS DECIDED AS FOLLOWS :
                                                      Article 1
            Mr J. C. Leny, Director-General of Framatome and President Director-General of
            Framatag, is hereby appointed a member of the Scientific and Technical Committee in
            place of Mr Baumgartner for the remainder of the latter's term of office which expires on
            31 March 1978 .
                                                       Article 2
            This appointment shall take effect on the date on which the Council receives notification
            of Mr Leny's acceptance .
             Done at Brussels, 20 July 1976 .
                                                                        For the Council
                                                                         The President
                                                                       M. van der STOEL


Avis juridique important

|

31992D0494

92/494/EEC: Commission Decision of 12 October 1992 accepting an undertaking in connection with the anti-dumping proceeding concerning imports on certain types of electronic microcircuits known as DRAMs (dynamic random access memories) originating in Japan, and terminating the investigation with regard to the producer in question

Official Journal L 299 , 15/10/1992 P. 0043 - 0044

COMMISSION DECISION  of 12 October 1992  accepting an undertaking in connection with the anti-dumping proceeding concerning imports on certain types of electronic microcircuits known as DRAMs (dynamic random access memories) originating in Japan,  and terminating the investigation with regard to the producer in question  (92/494/EEC)THE COMMISSION 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 Community (1), and in particular Article 10 thereof,  After consultations within the Advisory Committee as provided under by the above Regulation,  Whereas:  I. PREVIOUS PROCEDURE  (1) The Commission, by Regulation (EEC) No 165/90 (2), accepted undertakings offered by certain producing companies in connection with the anti-dumping proceeding concerning imports of certain types of electronic microcircuits known as DRAMs (dynamic  random access memories) originating in Japan. Subsequently, the Council, by Regulation (EEC) No 2112/90 (3) as amended by Regulation (EEC) No 3049/90 (4), imposed a definitive anti-dumping duty on imports of the product concerned.  (2) The undertakings offered by the producing companies concerned and accepted by the Commission have the effect of ensuring that these producers' DRAM sales prices in the Community do not fall below a certain reference price level which is considered  adequate to eliminate to a satisfactory extent the material injury caused to the complainant companies. The reference prices are adjusted quarterly on the basis of a formula contained in the undertakings and the production costs of all producing  companies from which undertakings have been accepted.  II. PRODUCT CONCERNED  (3) The products concerned are certain types of electronic microcircuits known as DRAMs as defined in Regulation (EEC) No 2112/90.  Finished DRAMs fall within CN codes 8542 11 12, 8542 11 14, 8542 11 16 and 8542 11 18, DRAM wafers within CN code ex 8542 11 01, DRAM dice within CN code ex 8542 11 05 (chips), and memory boards (modules) within CN codes ex 8473 30 10 or ex 8548 00 00.   III. REVIEW PROCEDURE  (4) By a notice published on 25 February 1992 (5) the Commission, after consultation within the Advisory Committee, and in accordance with Article 14 of Regulation (EEC) No 2423/88 initiated a partial review of Regulation (EEC) No 2112/90 with regard to  DRAMs produced in Japan by Motorola Incorporated (Motorola).  (5) In the framework of the investigation conducted the Commission sought and verified all information it deemed to be necessary for the purposes of this proceeding and carried out an investigation at the premises of the following producer in Japan:  - Tohoku Semiconductor Corporation (TSC), Sendai, Japan (a joint venture company owned by Motorola and Toshiba).  (6) The period of investigation of the partial review was 1 July to 31 December 1991.  IV. RESULTS OF THE INVESTIGATION  (7) The investigation showed that Motorola started commercial production of DRAMs in Japan in the framework of its joint venture, TSC, in October 1988, i.e. after the initial period of investigation (1 April 1986 to 31 March 1987). It was furthermore  established that in the framework of the joint venture the available production capacity of the joint-venture company TSC is allocated in equal parts to the parent companies according to their individual product requirements on the basis of regular  projections.  (8) In addition, the investigation revealed that Motorola did not export any of the DRAMs produced in the framework of its joint-venture company TSC to the Community during the period of investigation in the present review proceeding.  (9) Finally, it was established that the normal value for the producer concerned is not lower than the undertaking reference price as calculated for the other Japanese producers during the period of investigation.  (10) No new investigation was carried out as regards injury since it was neither requested nor considered appropriate.  V. UNDERTAKINGS  (11) On the basis of the results of the investigation it is considered appropriate that the offer of an undertaking by Motorola which is identical to that of the other Japanese producers should be accepted by the Commission. Indeed any other decision  could be considerd discriminatory for either Motorola or the other Japanese producers.  (12) The complainants and Motorola were informed of the essential facts and considerations, in particular about the calculation of the normal value, on the basis of which the Commission intended to accept the undertaking offered by Motorola and were  given every opportunity to comment.  (13) No comment was received in this respect.  (14) Should this undertaking be withdrawn by the producer concerned or should the Commission have reason to believe it has been infringed, the Commission could, in accordance with Article 10 (6) of Regulation (EEC) No 2423/88, immediately impose a  provisional duty on the basis of the results and conclusions of the investigation carried out in the framework of this review proceeding. Subsequently, a definitive duty could also be imposed by the Council on the basis of the information gathered in  this investigation.  (15) The Advisory Committee was consulted on the acceptance of the undertaking offered and no objections were raised.  (16) Since the present review relates only to the circumstances of one producer in Japan, the measures contained in Regulations (EEC) No 165/90 and (EEC) No 2112/90 referred to above are not being amended or confirmed within the meaning of Article 15  (1) of Regulation (EEC) No 2423/88 and consequently the date on which they were due to expire pursuant to that provision remains unchanged,  HAS DECIDED AS FOLLOWS:  Article 1  The undertaking offered by Motorola Incorporated in connection with the anti-dumping proceeding concerning imports on certain types of electronic microcircuits known as DRAMs (dynamic random access memories) originating in Japan is hereby  accepted.  This acceptance shall take effect on the date of entry into force of Council Regulation (EEC) No 2967/92 (6), amending Regulation (EEC) No 2112/90.  Article 2  The investigation in connection with the anti-dumping proceeding referred to in Article 1 is hereby terminated in respect of Motorola Incorporated. Done at Brussels, 12 October 1992. For the Commission  Jean DONDELINGER  Member of the Commission   (1) OJ No L 209, 2. 8. 1988, p. 1. (2) OJ No L 20, 25. 1. 1990, p. 5. (3) OJ No L 193, 25. 7. 1990, p. 1. (4) OJ No L 292, 24. 10. 1990, p. 16. (5) OJ No C 50, 25. 2. 1992, p. 3. (6) See page 4 of this Official Journal.