Proposal for a Council Regulation imposing a definitive anti-dumping duty on imports of Rubber Grade Carbon Black originating in Egypt and Russia /* COM/2003/0080 final */
Proposal for a COUNCIL REGULATION imposing a definitive anti-dumping duty on imports of Rubber Grade Carbon Black originating in Egypt and Russia (presented by the Commission) EXPLANATORY MEMORANDUM On 21 December 2001, the Commission opened an anti-dumping investigation with regard to imports into the Community of rubber-grade carbon blacks originating in Egypt and Russia. The investigation revealed the existence of injurious dumping. Given the need to further examine certain aspects of causation and Community interest, no provisional anti-dumping measures were imposed on rubber-grade carbon blacks originating in Egypt and Russia. The attached proposal for a Council Regulation is based on the definitive findings which confirmed the existence of dumping and injury, and reached the conclusion that a causal link existed between dumping and injury. The examination of all interests involved, in particular that of the Community industry, of unrelated importers and of users, led to the conclusion that it is not against the Community interest to take definitive measures. It is therefore proposed that the Council adopt the attached proposal for a Regulation which should be published in the Official Journal no later than 20 March 2003. Proposal for a COUNCIL REGULATION imposing a definitive anti-dumping duty on imports of Rubber Grade Carbon Black originating in Egypt and Russia THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, Having regard to Council Regulation (EC) No 384/96 of 22 December 1995 [1] on protection against dumped imports from countries not members of the European Community, and in particular Article 11(2) and (3) thereof, [1] OJ L 56, 6.3.1996, p.1, as last amended by Regulation (EC) No 1972/2002, OJ L 305, 7.11.2002, p.1 Having regard to the proposal submitted by the Commission after consulting the Advisory Committee, Whereas: 1. PROCEDURE 1.1. Initiation (1) On 21 December 2001 the Commission announced by a notice ('notice of initiation') published in the Official Journal of the European Communities the initiation of an anti-dumping proceeding with regard to imports into the Community of rubber-grade carbon blacks originating in Egypt and Russia [2]. [2] OJ C 367, 21.12.2001, p.16 (2) The proceeding was initiated following a complaint lodged in November 2001 by CEFIC (European Chemical Industry Council) ('the complainant') on behalf of producers representing a major proportion, in this case more than 75% [3], of the total Community production of rubber grade carbon blacks. The complaint contained prima facie evidence of dumping of the said product and of material injury resulting therefrom, which was considered sufficient to justify the initiation of an anti-dumping proceeding. [3] For confidentiality reasons a more precise figure cannot be disclosed. (3) The Commission officially advised the exporting producers and importers known to be concerned as well as their associations, the representatives of the exporting countries concerned, the complainant Community producers and the other Community producer, as well as the users, of the initiation of the proceeding. Interested parties were given the opportunity to make their views known in writing and to request a hearing within the time limits set in the notice of initiation. (4) A number of exporting producers in the countries concerned, as well as Community producers, Community users and importers made their views known in writing. All parties who so requested within the above time limits and showed that there were particular reasons why they should be heard were granted the opportunity to be heard. 1.2. Questionnaires (5) In order to allow exporting producers in Russia to submit a claim for Market Economy Status ('MES') [4], or individual treatment if they so wished, the Commission sent to all Russian companies known to be concerned a MES and individual treatment claim form. The Commission also sent questionnaires to all Community producers, all exporters/producers, all importers as well as all users known to be concerned and to all other parties which made themselves known within the deadlines set out in the notice of initiation. Questionnaires were also sent to traders based in countries outside the Community, when it became clear that their co-operation would be useful in the determination of the actual exports (volume and prices) to the Community. [4] It should be noted that, as the present procedure commenced before the amendment of Council Regulation (EC)No 384/96 of 22 December 1995 by Council Regulation (EC) No 1972/2002 of 5th November 2002. (6) Replies were received from three complainant Community producers, one non-complainant Community producer, seven producers/exporters in the countries concerned, four traders in non-EU countries, as well as from two importers related and five importers unrelated to producers/exporters in the Community. Finally, the Commission received claims for MES/individual treatment from two Russian exporting producers and claims for individual treatment from two other Russian producers/exporters of the product concerned. (7) The Commission sought and verified all the information they deemed necessary for the purpose of a determination of dumping, injury and Community interest. Verification visits were carried out at the premises of the following companies: Community producers: - Cabot Europe Ltd., France; - Columbian Chemicals Europa GmbH, Germany; - Degussa AG, Germany; - Deutsche Gasrusswerke GmbH & Co, Germany. Unrelated importers in the Community: - CIE s.r.l., Italy; - C.D.M.A. S.A., France; - Lehmann & Voss & Co, Germany. Exporters/producers in Russia: - Omsky Zavod Technicheskogo Ugleroda OJSC, Omsk - Jaroslavsky Technichesky Uglerod OJSC, Jaroslavl - Tuimasytechuglerod OJSC, Tuimasy - Ivanovsky Techuglerod I Resina OJSC, Mikhalevo - Techuglerodexport CJSC, Moscow and Jejune Trade Ltd., traders of Tuimasytechuglerod and Ivanovsky Techuglerod. (The verification of Jejune Trade Ltd. took place in Moscow though the company is incorporated in Cyprus) Exporter/producer in Egypt: - Alexandria carbon Black Co. S.A.E.(ACB), Alexandria Importers related to the exporting producer in Egypt: - ACB (UK) Ltd., Wolverhampton, UK - ACB Belgium BVBA, Rumst, Belgium Traders: - Taurus Carbonpack KFT, Hungary - Carbon Black Ltd., Hungary Analogue country: - Columbian Tiszai Carbon Ltd., Hungary Users: - Goodyear Dunlop Tyres Europe B.V., Belgium; - Nokian Tyre plc., Finland; - Manufacture Française des Pneumatiques Michelin, France; - Continental AG, Germany; - Bridgestone / Firestone Europe S.A., Belgium; - Pirelli Pneumatici S.p.A., Italy; - Vredestein NV, Netherlands; - Cooper-Avon Tyres Ltd, Cooper Standard Automotive France SA and Cooper Standard Automotive UK sealing Ltd, UK and France. 1.3. Period of investigation (8) The investigation of dumping and injury covered the period from 1 October 2000 to 30 September 2001 ('the investigation period' or 'IP'). The examination of trends relevant for the assessment of injury covered the period from 1997 to the end of the IP ('period considered'). 1.4. Customs treatment (9) The product concerned enters free of any customs duties in the Community. 1.5. Provisional measures (10) Given the need to further examine certain aspects of causation and Community interest, no provisional anti-dumping measures were imposed on rubber-grade carbon black originating in Egypt and Russia. 1.6. Subsequent procedure (11) On 20 September 2002 all co-operating parties were informed of the Commission's preliminary assessment of the case and were in a position to make comments. Where appropriate, the Commission's findings have been modified accordingly. (12) The Commission requested additional information from virtually all co-operating parties, and continued to seek and verify all information it deemed necessary for its definitive findings. In particular, further on-the-spot investigations were carried out at the premises of two users, in order to complete the visit of all the co-operating users. (13) All parties were informed of the essential facts and considerations on the basis of which it was intended to recommend the imposition of definitive anti-dumping duties. They were also granted a period within which they could make representations subsequent to this disclosure. The oral and written comments submitted by the parties were considered, and, where appropriate, the findings have been modified accordingly. 2. PRODUCT CONCERNED AND LIKE PRODUCT 2.1. Product concerned (14) The product concerned is rubber-grade carbon blacks, a carbon-based chemical used as a functional filler in rubber products due to its reinforcing properties originating in Egypt and Russia, currently classifiable within CN codes ex 2803 00 10 and ex 2803 00 80. (15) The product concerned is manufactured in various grades. The investigation established that the reinforcing properties of rubber-grade carbon blacks may vary significantly from grade to grade. It was found that some - so called "non active" - grades have no reinforcing properties at all, and that they do not act as functional fillers in rubber compounds. It was also found that some grades, which have reinforcing properties, may sometimes also be used in products other than rubber, as for example ink or plastic products. It was concluded that insofar as a grade has reinforcing properties and can therefore act as functional filler in rubber compounds it should be considered as falling within the scope of the product concerned, irrespective from its actual use. Therefore, apart from the above-mentioned "non-active" grades, which have no reinforcing properties, all other grades of rubber-grade carbon blacks should be considered as the product concerned for the purpose of this proceeding. Moreover, the various grades in which the product is manufactured and which have reinforcing properties have the same basic physical, chemical and technical characteristics and are therefore considered as a single product. (16) The investigation showed that three basic elements are at the same time necessary and sufficient to identify a product as being a rubber-grade carbon black with reinforcing properties: the "specific surface area", the "structure" and the "crush strength of the pellet". These elements may be measured by following various testing methods. For the purpose of this proceeding, the ASTM [5] testing methods have been retained, as these standards are the most widely used at an international level. After considering the submissions made by interested parties, the investigation concluded that the most appropriate way to determine whether a rubber-grade carbon black has reinforcing properties and can therefore be considered as the product concerned for the purposes of this proceeding, is to refer to the surface area by applying the "Iodine Adsorption" test method, to refer to the structure of the product by applying the "Dybuthyl Phthalate (DBP) Absorption" test method, and to refer to the crush strength of the pellet by applying the "Automated Individual Pellet Hardness" test method. [5] ASTM stands for American Society for Testing and Materials. (17) The Iodine Adsorption, the DBP Absorption and the Individual Pellet Hardness are measured following the standard test methods issued by the ASTM. The designations of these standards are: ASTM D1510-02a for the Iodine Adsorption, ASTM D2414-02a for the DBP Absorption and ASTM D5230-00e1 for the Automated Individual Pellet Hardness. (18) It was consequently established that all rubber-grade carbon blacks for which the "Iodine Adsorption", the "DBP Absorption" and the "Automated Individual Pellet Hardness" values are not below the minimum thresholds and, in the case of the DPB absorption test, not above the maximum threshold of these 3 standards have reinforcing properties and should therefore be considered as product concerned. These values are as follows: >TABLE POSITION> (19) Two Russian producers claimed that their products did not fall within the scope of the proceeding. The investigation showed that the product exported by one of these producers fell indeed outside the above-mentioned values and was therefore considered outside the scope of the proceeding. As for the other producer, its claim had to be rejected since the product fell within the above product definition. 2.2. Like product (20) It is determined that the rubber-grade carbon blacks as defined above manufactured by the Community producers and sold on the Community market are like products to the rubber-grade carbon blacks manufactured in Egypt and Russia and exported to the Community, as well as to the products sold on the domestic markets of these countries, since there are no differences in the basic physical, technical and chemical characteristics and uses. The same is true with regard to the rubber-grade carbon blacks manufactured and sold for export to the Community as compared to the product manufactured and sold in Hungary, which was selected as a market economy third country for Russia. All these products are therefore considered to be like products within the meaning of Article 1(4) of Council Regulation (EC) No 384/96 (the "basic Regulation"). 3. DUMPING 3.1. EGYPT 3.1.1. Normal value (21) For the sole Egyptian exporting producer, since its total domestic sales of the like product carried out during the IP represented less than 5% of export sales to the Community, normal value had to be constructed. In accordance with Article 2(3) of the basic Regulation, normal value was constructed by adding a reasonable amount for SG&A costs and for profit to the exporter's cost of manufacturing. As the domestic sales of the product concerned were not representative, and in the absence of any other appropriate basis, for the purpose of the determination of dumping, the reasonable amount for SG&A and profit was established, in accordance with Article 2(6)(c) of the basic Regulation, on the basis of the data submitted by the co-operating producer in Hungary, selected as analogue country for Russia. (22) The Egyptian exporting producer claimed that the profit margin used by the Commission was abnormally high and that the Commission had not verified the profit normally realised by other exporters or producers on sales of the same general category in Egypt. As to the level of the profit margin, it should be considered that the amount added to the exporter's cost of manufacturing did not only account for profit but also for SG&A and thus represented the gross margin for both items. The amount for profit cannot be analysed in isolation as it is a function, inter alia, of the SG&A.In the case of this company, the SG&A costs are limited since the company is a manufacturing subsidiary of a larger group. Moreover, it should be noted that the gross margin of the producer in the analogue country is in line with the gross margin of a leading USA producer of carbon black. Finally, the evidence provided by the exporter did not refer to companies producing carbon black or items belonging to the same general category of product. For all the above-mentioned reasons the claim was rejected. (23) The Community industry claimed that domestic prices should have been used to calculate the normal value. However, as the domestic sales volumes to unrelated customers were below the threshold referred to in Article 2(2) of the basic Regulation and no evidence was found that the domestic prices were representative for the market concerned, normal value had to be constructed. 3.1.2. Export price (24) In some cases, the product concerned was exported to independent customers in the Community, and the export price was therefore established in accordance with Article 2(8) of the basic Regulation, namely on the basis of the export prices actually paid or payable. (25) In other cases, the product concerned was exported to two related importers in the Community (so called 'refilling stations'). In these cases, the export price was constructed on the basis of the price at which the imported products are first resold to an independent buyer, in accordance with Article 2(9) of the basic Regulation. In order to establish a reliable export price at the Community frontier level, adjustments were made for all costs incurred between importation and resale. For one related importer, the costs reported did not cover the totality of costs incurred. As no further elements had been made available by that importer, an adjustment was therefore made on the basis of the facts available. The rate of profit applied (5%) was based on information relating to independent traders in the Community. 3.1.3. Comparison (26) The normal value and export prices were compared on an ex-works basis. 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 price comparability in accordance with Article 2(10) of the basic Regulation. Accordingly, allowances for differences in discounts, rebates, transport, insurance, handling, loading and ancillary costs, packing and credit were granted, where applicable and supported by verified evidence. 3.1.4. Dumping margin (27) The dumping margin was established on the basis of a comparison of a weighted average normal value with a weighted average of export prices, in accordance with Articles 2(11) and 2(12) of the Basic Regulation. (28) This comparison showed the existence of dumping, the dumping margin being equal to the amount by which the normal value exceeded the export price. Expressed as a percentage of the CIF import price at the Community border, duty unpaid, the dumping margin is of: - Alexandria Carbon Black: 6,6% (29) As the co-operating exporting producer is acknowledged to be the sole exporting producer of the product concerned in Egypt, the residual dumping margin for this country is set at this company's level. 3.2. RUSSIA 3.2.1. Level of co-operation (30) The level of co-operation was high. Three exporting producers representing more than 85% of exports to the Community co-operated in the proceeding. 3.2.2. Market Economy Status (MES) (31) As when the proceeding was initiated, Russia was still considered a non-market economy country [6], normal value was to be determined in accordance with paragraphs 1 to 6 of Article 2 of the basic Regulation [7], only for those producers which were found to meet the criteria laid down in Article 2(7)(c), i.e. that market economy conditions prevail in respect of the manufacture and sale of the product concerned. [6] See article 2 of Council Regulation (EC) No 1972/2002 [7] Basic Regulation before its amendment by Council Regulation (EC) No 1972/2002 (32) Two exporting producers in Russia requested MES pursuant to Article 2(7)(b) of the basic Regulation, or individual treatment should the investigation establish that they did not meet all the conditions for MES, and replied to the MES claim form for exporting producers. (33) The Commission sought all information deemed necessary and verified all information submitted in the MES application at the premises of the companies in question. (34) Both companies were found to have one clear set of basic accounting records, which were independently audited in line with international accounting standards. The production costs and financial situation of both companies were not subject to significant distortions carried over from the former state trading system and both companies were subject to bankruptcy and property laws. Exchange rate conversions were carried out at the market rate. As far as decisions regarding prices, costs and inputs are concerned, it was found that they were made in response to market signals without significant state interference. As for market values, it was noted that prices of oil (feedstock) and energy might still need to be adjusted to more appropriate market levels, should it be found in the course of the further investigation that these prices were not fully reliable. (35) On the basis of the foregoing, it was concluded that the criteria in Article 2(7)(c) of the basic Regulation were met and that both companies should therefore be granted MES. (36) The companies concerned and the complainant were given an opportunity to comment on the above findings. The complainant claimed that MES should not be granted because energy prices in Russia are strongly influenced by state intervention and do not reflect market values. This claim was rejected because the general level of energy prices in Russia cannot be taken as such as an indication of undue state interference in the companies' business decisions, to the extent, as is here the case, that any distortion can be corrected when determining the normal value by making an appropriate adjustment. The existence of possible distortions in the determination of normal value and costs may always be taken into account pursuant to Article 2(3) and Article 2(5) of the basic Regulation. 3.2.3. Individual Treatment (37) In accordance with Article 9(5) of the Basic Regulation, it is the institution's consistent policy to calculate a country-wide duty, if any, for countries falling under Article 2(7) except in those cases where companies are able to demonstrate that their export prices and quantities as well as the conditions and terms of the sales are freely determined, exchange rates are carried out at market rates and that any State interference is not such as to permit circumvention of measures if exporters are given different rates of duty. If these conditions are met, this would justify a departure from the determination of a single countrywide duty. (38) Two related Russian exporting producers claimed individual treatment. The issue of individual treatment became irrelevant in respect of one of the applicants as it was found that it did not export the product concerned to the Community during the IP. The Commission sought and verified all information deemed necessary for the purpose of determining whether the other applicant qualified for individual treatment. It was found that the export prices, export quantities, conditions and terms of sale were freely determined, that the exchange rate conversions were carried out at the market rate, and that the company was sufficiently independent from State interference. Finally, it was concluded that there was no risk of circumvention of the measures if the exporter was granted individual treatment in this case. It was therefore concluded that individual treatment should be granted to the company. 3.2.4. Analogue country (39) According to Article 2(7) of the Basic Regulation, for companies to which MES could not be granted or that did not apply for MES, normal value was established on the basis of the price or constructed value in an analogue country. (40) In the notice of initiation of the proceeding the Commission indicated that it envisaged to use Hungary as the analogue country for the purpose of establishing normal value for Russia, and invited interested parties to comment on this intention. (41) Some Russian exporters and other interested parties suggested that Poland would be a more appropriate choice, mainly because this country's market was larger than Hungary's, competition bigger, and it was claimed that imports of the product concerned into Hungary were negligible. However, it was established that the Hungarian market was big enough to be considered representative in comparison to the volume of Russian exports of the product concerned to the EU. It was also found that the volume of imports and the presence of various customers on the Hungarian market implied a sufficient degree of competition on this market which was considered not less than in Poland. It was also considered that the size of the Hungarian producer was significantly bigger than that of the two Polish producers put together, and much closer to the size of the Russian companies accounting for most of the Russian exports to the Community. This guaranteed the availability of more appropriate data, e.g. in terms of economies of scale. The Commission therefore confirmed the selection of Hungary as analogue country. 3.2.5. Dumping 3.2.5.1. Normal Value in the analogue country (42) Pursuant to Article 2(7)(a) of the basic Regulation, normal value for the Russian producer to which individual treatment was granted was established on the basis of verified information received from the producer in the analogue country. (43) It was found that the grade exported by this producer was neither manufactured nor sold by the co-operating producer in the analogue country. Normal value was therefore constructed, on the basis of the cost of manufacturing of the most similar grades produced by the co-operating company in the analogue country. This cost of manufacturing was adjusted to take account of the value of the difference in the Iodine Absorption between the two grades. To the cost of manufacturing established as above, a reasonable amount for SG&A and profit margin was added. This amount for SG&A and profit was based on the average amounts obtained by the Hungarian company in its domestic market sales. 3.2.5.2. Normal Value for companies to which MES was granted (44) In the case of both companies, domestic sales represented overall more than 5% of the sales volume of the product concerned to the Community. (45) It was then considered whether these sales had been made in the ordinary course of trade. In this respect, it should be noted that prices of electricity and gas were found not to be fully reliable and were, therefore, deemed not to allow an appropriate assessment of all the costs associated with the production and sale of the product under consideration. A comparison of the prices paid by the two companies for these cost items with prices of comparable items in OECD countries had in fact shown that the former were substantially lower, and no conclusive explanation was provided justifying such a difference. Therefore, for both exporting producers, the cost of manufacturing was adjusted in respect of prices of electricity and gas. These adjustments were based on the price, net of tax, paid by the industrial users of electricity and gas in Hungary, as published by the International Energy Agency. These prices were found to be almost identical to the Russian export price as published by the same agency. (46) As far as oil is concerned, the Commission did not make any adjustment to the costs submitted by the companies. As the price of petrochemical oil in Russia represented almost 80% of the price which was used as an analysis tool, it seemed indeed possible that the difference of 20% be largely due to the specific advantages that Russia enjoys in this market. No adjustment has either been made in the case of carbochemical oil, as no evidence was found to establish an abnormal discrepancy between prices in Russia and in other countries, and as it was considered that the price paid for the other oil input, petrochemical oil (for which there is evidence to establish its reliability), was acceptable. (47) Both exporting producers objected to the adjustments made to the prices of electricity and gas, and submitted a number of comments in this respect. (48) They first of all argued that any comparison between Russian prices and international prices of gas and electricity would be unfair, as Russia enjoys a comparative economic advantage, due to its significant gas, oil and coal resources. This objection had to be rejected because it was found that prices paid by the two exporting producers for electricity and gas were abnormally low, as evidenced by the fact that Russian domestic prices were found to be between 15% and 30% of the corresponding Hungarian prices. More importantly, it was found that Russian domestic energy markets are regulated by public authorities who set the prices. (49) The two exporting producers further argued that the Commission had not requested co-operation from Russian energy producers in order to establish that the suppliers obtained a profit from their sales. This claim was rejected as irrelevant. Indeed, even if the suppliers in question were making a profit on their domestic sales, this would not detract from the fact that the prices are set by public authorities and completely disproportionate when compared to prices charged elsewhere, so that they cannot reasonably be considered as reliable. (50) Both companies claimed that their accounting records correctly reflected the prices paid for raw materials. This claim was rejected because, although the Commission had verified that the amounts set out in the accounting records for gas and electricity were indeed paid by the producers, those prices were still deemed not to reflect a value at least vaguely close to the market value. (51) The two exporting producers further argued that the Commission, in this case, should have initiated an anti-subsidy investigation in accordance with Article 7(10) of Council Regulation (EC) No 3284/94. The Commission dismissed this claim because situations which derive from the existence of subsidies may be examined in the course of an anti-dumping investigation. As evidenced by the last sentence of Article 14(1), the basic anti-dumping Regulation may address dumping situations stemming from subsidisation. (52) The two exporting producers also submitted that the Commission had not consulted them, at the stage of provisional determination of the analogue country, on the possibility that Hungarian energy prices might be used for adjusting their energy costs. The Commission rejected this argument as the companies were granted MES and therefore Hungary was not used as analogue country to establish normal value in their regard, but only as a proxy, since these particular Russian prices could not be used. (53) The two exporting producers further argued that if Hungarian gas prices were to be used to adjust the Russian prices, account should in any case be taken of the difference in transportation costs. This claim was accepted in substance, but as the quantification provided was not sufficiently substantiated, the Commission made their own assessment of the allowance granted. It was also claimed that the gas price should be reduced by the amount corresponding to the difference between the taxes charged to the export price of gas and those applied to the domestic price. This claim was accepted as it had been properly substantiated. (54) Finally, one company objected to the methodology of adjusting the cost of manufacturing in respect to the cost of recycled raw materials. This claim was rejected as the methodology proposed by the company could not be verified. Another duly substantiated claim concerning the calculation of the adjustment for electricity costs was instead accepted. (55) In the case of one company, domestic sales of each grade, when representative, were found to be made in the ordinary course of trade even after adjusting the cost of manufacturing, and could therefore be used for the calculation of the normal value. For the two grades for which domestic sales were not representative normal value was constructed on the basis of the (adjusted) manufacturing cost of each grade, to which the average SG&A amount and (adjusted) margin of profit for domestic sales of the product concerned of the company was added, in accordance with Article 2(6) of the basic Regulation. (56) In the case of the other company, domestic sales were representative only for one grade. However, for this grade, the domestic transactions made at profit represented less than 10% of the total volume sold in the domestic market for that grade. Therefore, for all grades, normal value was constructed on the basis of the (adjusted) manufacturing cost of each grade, to which a reasonable amount for SG&A and for profit was added, corresponding to the average SG&A and profit of the transactions made in the ordinary course of trade of domestic sales of the like product, in accordance with Article 2(6) of the basic Regulation. 3.2.5.3. Export price (57) The producer being granted individual treatment sold the product concerned to the Community via two related traders operating in Russia, one of which is however incorporated in Cyprus, and via an unrelated trader in Bulgaria, which did not cooperate. (58) In the case of one of the exporting producers being granted MES, the product concerned was exported to the Community either directly to an independent customer located in the Community or indirectly, via independent traders located in Poland and Hungary. In the case of the other company being granted MES, the product concerned was exported to the Community only via independent traders located in Switzerland and Hungary. (59) For the three companies, the export price was established in accordance with Article 2(8) of the basic Regulation, namely on the basis of the export prices actually paid or payable by either the first independent customer located in the Community or the independent traders located in the above-mentioned countries. In the latter case, in order to determine which sales of the two exporting producers had actually been shipped to the Community, information submitted by the respective independent traders was used as available information. 3.2.5.4. Comparison (60) The normal value and export prices were compared on an ex-works basis. 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 price comparability in accordance with Article 2(10) of the basic Regulation. Appropriate adjustments were granted in all cases where they were found to be reasonable, accurate and supported by verified evidence. Accordingly, allowances for differences in transport, insurance, handling, loading and ancillary costs, packing and credit, where applicable and supported by verified evidence. 3.2.5.5. Dumping margin (61) The dumping margin was established on the basis of a comparison of a weighted average normal value with a weighted average of export prices, in accordance with Articles 2(11) and 2(12) of the Basic Regulation. (62) This comparison showed the existence of dumping, the dumping margin being equal to the amount by which the normal value exceeded the export price. The dumping margin was then expressed as a percentage of the CIF import price at the Community border. In some cases, the CIF import price at the Community border had to be established on the basis of the information submitted by the independent traders located in Switzerland, Poland and Hungary co-operating in the proceeding. The dumping margins so obtained are as follows: a) Companies to which MES was granted: - Omsky Zavod Technicheskogo Ugleroda OJSC: 20,5% - Jaroslavsky Technichesky Uglerod OJSC: 54,8% b) Company to which individual treatment was granted: - Tuimasytechuglerod OJSC: 35% (63) As the volume of exports covered by the co-operating Russian exporters/producers represented 85% of the import data as registered under Eurostat during the IP, it is considered that the level of co-operation has been sufficiently high, i.e. that all exporting producers actually co-operated in the investigation. Therefore, the residual dumping margin for Russia is established as the highest level calculated for a co-operating producer, i.e. 54,8%. 4. INJURY 4.1. Definition of the Community industry (64) The three complainant Community producers replied to the questionnaires and fully co-operated in the investigation. During the IP they represented more than 75% of the Community production. (65) The fourth and remaining Community producer, Deutsche Gasrusswerke GmbH & Co. (DGW), whilst not a complainant, neither supported nor opposed the complaint, but did co-operate in the investigation. The company represents the remainder of Community production and it is 50% controlled by one complainant Community producer and 50% by users of the product concerned, i.e. rubber goods manufacturers. Due to its particular position, it is considered that DGW is shielded from competition with the other Community producers or with importers on the free market of rubber-grade carbon blacks. More importantly, DGW is related, within the meaning of Article 4(1) of the basic Regulation, to users who also import the product concerned from the countries concerned. For these reasons, its production cannot be attributed to the Community producer concerned. (66) On the basis of the above, the three complainant Community producers are deemed to constitute the Community industry within the meaning of Article 4(1) and Article 5(4) of the basic Regulation. 4.2. Community consumption (67) Community consumption was established on the basis of the sales volumes of the Community industry on the Community market, the "sales" of the other Community producer on the Community market, the information provided by the co-operating exporting producer in Egypt, and Eurostat data for the imports from Russia and the other third countries, duly adjusted where appropriate. (68) On this basis, Community consumption increased by 6% between 1997 and the IP. (69) Consumption of rubber-grade carbon black in the Community increased sharply between 1997 and 1998 and then remained relatively flat until 2000, before declining slightly by 2% during the IP. The surge observed in 1998 was due to the good business climate prevailing at that time in the economy at large, but more particularly so in the car and the tyre industries. It should be noted, that the various operators on the Community market benefited differently from this development in 1998. The Community industry's sales rose by 4%, "sales" of the fourth Community producer rose by 5%, imports from Egypt and Russia soared by 59% and imports from other countries increased by 33%. >REFERENCE TO A GRAPHIC> 4.3. Imports from the countries concerned 4.3.1. Cumulative assessment of the effects of the imports concerned (70) The Commission considered whether imports from the countries concerned should be assessed cumulatively on the basis of the criteria set out in Articles 3(4) of the basic Regulation. (71) The dumping margin found for each of the countries concerned was more than de minimis, the volume of imports from each of these countries was not negligible and the cumulative assessment was considered appropriate in view of the conditions of competition between the imports from the countries concerned and the like Community product. These similar conditions of competition were evidenced by the fact that the rubber-grade carbon blacks imported from the countries concerned and those produced and sold by the Community industry within the Community market were alike and distributed via the same trade channels. Moreover all import volumes were substantial and resulted in significant market shares, which increased between 1997 and the IP, and were made at prices significantly undercutting the prices of the Community industry. (72) It is, therefore, concluded that imports originating in the two countries concerned should be assessed cumulatively. 4.3.2. Volume and market share of the imports concerned (73) Imports of rubber-grade carbon blacks from the countries concerned into the Community increased in volume from 23 000 tonnes in 1997 to 98 000 tonnes in the IP, i.e. by 332%. The corresponding market share increased from 2.1% in 1997 to 8.7% in the IP, i.e. by 6.6 percentage points, corresponding to a rise of around 300%. >REFERENCE TO A GRAPHIC> (74) The Egyptian exporting producer and other parties claimed that imports from Egypt should be considered in combination with the imports from Thailand. They claimed that due to a commercial decision, taken by the Indian mother company of both the Egyptian exporting producer and a Thai company manufacturing carbon black, to re-allocate carbon black shipments to western Europe between the Egyptian exporting producer and the Thai company, the import volumes from Egypt merely replaced the Thai import volumes. (75) Even were this argument to have any validity, it is not borne out by the facts. Even when taken in combination, the trend, between 1997 and the IP, of imports from Thailand and Egypt is actually similar to the trend of the imports from Egypt alone. The development of imports would therefore not be significantly different if the argument made by the said parties were to be followed. 4.3.3. Prices of dumped imports 4.3.3.1. Price evolution (76) The weighted average price of imports originating in the countries concerned increased by 17% during the period considered, i.e. from 441 EUR/tonne in 1997 to 516 EUR/tonne in the IP. The investigation showed that the evolution of prices of rubber-grade carbon blacks is linked to the evolution of the oil price (see recital (88) below) and generally followed the price trend observed on the Community market as a whole. 1998 was the exception (see recital (69) above). In this year, when oil prices were low and falling, prices of rubber-grade carbon blacks from the countries concerned rose, whilst those of the Community industry and the other third countries fell (see recital (105) below). However, Community industry's prices remained above that of imports from the countries concerned throughout the period considered. >REFERENCE TO A GRAPHIC> 4.3.3.2. Undercutting (77) The Commission has examined whether the exporting producers of the countries concerned undercut the prices of the Community industry during the IP. For the purpose of this analysis, the CIF prices of the exporting producers have been duly adjusted for post importation costs and compared, at the same level of trade, to Community producers' ex-works prices. All prices were compared net of all discounts and rebates. (78) The undercutting margins found on this basis, expressed as a percentage of the Community producers' prices, range from 4% to 8% as regards the Egyptian producer and from 17.2% to 31.2% as regards Russian producers. (79) It should be noted that these price undercutting margins do not fully illustrate the effect of the dumped imports on prices of the Community industry, given that both price depression and price suppression were observed. This is evidenced by the low profit margin achieved by the Community industry in the IP (see recital (90) below), a level substantially lower than the normal profit that the Community industry could have achieved in the absence of dumping. 4.4. Situation of the Community industry (80) The injury analysis focused on the three complainant Community producers only. As to the fourth Community producer (DGW), as mentioned above, its production cannot be attributed to the Community industry and its situation is therefore not taken into account for the assessment of the injurious situation of the Community industry. 4.4.1. Production (81) Community industry production remained relatively stable between 1997 and the IP. After an increase of around 6% between 1997 and 1998, namely from around 925 000 tonnes to around 983 000 tonnes, it then steadily declined until the IP, when it returned to its 1997 level. The increase experienced in 1998 was due to the good economic climate, which also translated into a high capacity utilisation rate (see recital (82) below). >REFERENCE TO A GRAPHIC> 4.4.2. Capacity (82) The actual total production capacity of the Community industry exclusively dedicated to the product concerned decreased by 2% during the period considered. It firstly gradually increased, reaching its peak in 2000, then it dropped by 7% in the IP. This drop was due to the closure of two production units of one Community producer, in France and the UK, due to poor demand prospects and profitability. This resulted in a sizeable loss of jobs. >REFERENCE TO A GRAPHIC> 4.4.3. Capacity utilisation rates (83) Capacity utilisation experienced a relatively uneven development. It was at 85% in 1997, peaked at 90% in 1998 due to the good demand level, subsequently fell back to 84% in 1999 and 2000 and then increased again to 87% in the IP. This increase of capacity utilisation is linked to the reduction of capacity as mentioned above. It is to be noted that in view of the nature of the industry concerned, which is capital-intensive, it is vital to maintain a high capacity utilisation ratio. >REFERENCE TO A GRAPHIC> 4.4.4. Sales volume in the Community (84) Despite an increase in consumption, the sales volume of the Community industry decreased by 2.7% between 1997 and the IP, i.e. from around 855 000 tonnes to around 832 000 tonnes. It showed a positive development in 1998 as compared to 1997, increasing by 4% (see recital (69) above), then remained relatively stable between 1999 and 2000, and finally declined in the IP. This is in contrast with the development of imports as described in recital (73) above. >REFERENCE TO A GRAPHIC> 4.4.5. Stocks (85) Inventories are not particularly relevant for the injury determination in this case as this industry works on the basis of contracts with its largest customers, where predictability is essential for both parties. Contracts can have a quarterly, annual or sometimes multi-annual periodicity. Stocks, which represent around 7% of the EC sales volumes, consist basically of merchandise which has been produced to order but not shipped yet. However, the evolution of stocks is analysed for the sake of completeness. The level of stocks decreased by around 6% between 1997 and the IP, from around 62 000 tonnes to around 58 000 tonnes. They first increased between 1997 and 1998 by 2% and then continuously declined, going up slightly again in the IP. >REFERENCE TO A GRAPHIC> 4.4.6. Market share >REFERENCE TO A GRAPHIC> (86) The Community industry lost 6.9 percentage points of market share between 1997 and the IP, from 80.5% to 73.6%. Over the same period, the countries concerned gained 6.6 percentage points of market share (from 2.1% in 1997 to 8.7% in the IP). The fourth Community producer lost 0.3 percentage point, and imports from countries other than the countries concerned gained a mere 0.6 percentage point. 4.4.7. Sales prices of the Community industry (87) The average unit sales price of the Community industry increased by 11% during the period considered. More specifically, it decreased by 7% between 1997 and 1999, from 528 EUR/tonne to 492 EUR/tonne. Subsequently, it rose by 12% in 2000 and by a further 6% in the IP. >REFERENCE TO A GRAPHIC> (88) This evolution of the sales prices must be seen in the light of the high dependence of rubber-grade carbon blacks on the price of oil which in the IP represented 45% of total costs of production (against 32% in 1997). The principal raw material used for the production of rubber-grade carbon black is heavy fuel oil. Indeed the price of oil rose significantly throughout 1999 and 2000 (on a monthly basis it more than tripled), with a direct impact on the cost of production and consequently on the sales prices from 1999 onwards. Prices, however, could not be increased sufficiently to cover the increased costs. It should be also noted that, with the exception of the year 1998, the price developments were in line with those of the imports from the countries concerned. (89) >REFERENCE TO A GRAPHIC> In this respect, the Commission also considered why, as opposed to the developments seen in the past, the unit costs of production slightly increased while the oil cost marginally decreased (see graph) between 2000 and the IP. Firstly, there is a time-lag of about two months between the moment when the oil is purchased and the moment when it is consumed. Secondly, some other cost items have moved in the opposite direction to the oil cost. This is particularly the case for natural gas, which typically shadows the evolution of oil prices with a time-lag of about six months. Gas represented some 8% of total costs of production during the IP. 4.4.8. Profitability and return on investments (90) Profitability, expressed as a percentage of net sales, dropped between 1997 and the IP by more than 9 percentage points. While the Community industry enjoyed profit rates of 9.7% in 1997, 16% in 1998 and 10% in 1999, in 2000 and the IP a sharp decrease was observed, with profit/loss rates of -1.7% and 0.4%, respectively. In fact, the price rise which occurred between 1999 and 2000, described in section 4.4.7, was not sufficient to absorb the even larger rise in costs triggered by the hike in the oil price. The marginal improvement in profits observed in the IP as compared to 2000 is due to both cost cutting efforts (e.g. closure of two production units) and to a limited increase of price levels in the IP. However, the latter was achieved at the expense of the market share, which dropped by a further 0.7 percentage point. (91) The return on investments (ROI) broadly followed the profitability curve during the period considered. It went down from 21% in 1997 and 33% in 1998 to -3% and 1% in 2000 and the IP, respectively. >REFERENCE TO A GRAPHIC> 4.4.9. Cash Flow (92) Like most other indicators, the cash flow generated by the sales of the product concerned first increased in 1998 compared to 1997. It then decreased sharply from EUR112 million in 1998 to EUR20 million in 2000, before recovering slightly to EUR31 million in the IP. >REFERENCE TO A GRAPHIC> 4.4.10. Ability to raise capital (93) None of the companies mentioned any current difficulty in raising capital. It should be considered in this respect that the three complainant Community producers are part of large groups, in two cases of multinational corporations, which have good credit ratings. However, the individual companies of the relevant groups need to demonstrate an ability to give reasonable returns if they are to justify further investments. Consequently, should the cash flow continue to deteriorate, this situation may change. 4.4.11. Employment and wages (94) The number of employees directly linked or allocated to the production of rubber grade carbon blacks steadily declined throughout the period considered by 13%. Employment fell from 1 903 in 1997 to 1 656 in the IP. (95) >REFERENCE TO A GRAPHIC> Overall wages followed a similar pattern as the number of persons employed. The average salary per employee increased gradually over the period of examination, with the exception of the IP when it witnessed a decline compared to 2000. Between 1997 and the IP, the overall increase was of around 11%. This figure exceeds the consumer price inflation observed in the Community during the same period (7%), but remains below the rate of increase of the average nominal compensation per employee (12%) observed during the same period in the Community (all sectors). 4.4.12. Productivity (96) Productivity increased considerably during the period under examination, from 486 tonnes/employee in 1997 to 559 tonnes/employee in the IP. This represents an overall increase of 15% during the period considered, which mirrors rationalisation efforts. >REFERENCE TO A GRAPHIC> 4.4.13. Investment (97) Investments remained at a relatively stable level during the period considered, amounting to around EUR59 million in the IP. These investments mainly consisted in renewal or improvements of existing equipment. >REFERENCE TO A GRAPHIC> 4.4.14. Growth (98) While the Community consumption increased by 7% between 1997 and the IP, the quantities sold by the Community industry declined by 2.7% and its market share dropped by 7 percentage points. The Community industry was therefore unable to benefit from the growing market. At the same time imports from the countries concerned increased by 332%, whilst their increased market share (from 2.1% to 8.7%) replaced that lost by the Community industry. 4.4.15. Magnitude of the dumping margin (99) Given the volume and the prices of the imports from the countries concerned and of the magnitude of the actual margins of dumping, the impact on the Community industry cannot be considered to be negligible. 4.4.16. Conclusion on the analysis of the situation of the Community industry (100) A deterioration of the situation of the Community industry has been found over the period considered. Between 1997 and the IP, most injury indicators showed negative developments. All indicators related to market shares, sales volumes, profitability, return on investment, cash-flow and employment declined. The marginal recovery of profits in the IP is not sufficient to overturn this trend (see recital (90) above). Other indicators such as production, capacity, capacity utilisation, and investments remained rather stable during the period considered while sales prices increased (see recital (88)). The sizeable productivity gains achieved between 1997 and the IP, and the drop in the number of employees illustrate the effort made by the Community industry to remain price competitive. However, these more positive developments alone cannot offset the overall weakened position of the Community industry in the market as indicated above. The Community industry, whilst attempting to limit losses by increasing its sales price (a trend also observed for the imports from the countries concerned), could not pass on these increased costs, and consequently, the increase in sales prices was insufficient. (101) Taking into account that all indicators related to market shares, sales volumes, profitability, return on investment, cash-flow and employment declined, and the increase in sales prices was insufficient, it is therefore concluded that the Community industry has suffered material injury. 5. CAUSATION 5.1. Introduction (102) In accordance with Article 3(6) and (7) of the basic Regulation, it was examined whether the dumped imports of the product concerned originating in Egypt and Russia have caused injury to the Community 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 injurious to the Community industry, were also examined in order to ensure that possible injury caused by these other factors was not such as to break the causal link between the dumped imports originating in Egypt and Russia and the injury suffered by the Community industry. 5.2. Effect of the dumped imports 5.2.1. Volumes of dumped imports >REFERENCE TO A GRAPHIC> (103) The imports from the countries concerned increased continuously during the period considered both in volume, by 332%, and in terms of market shares, from 2.1% to 8.7%, i.e. an increase of 6.6 percentage points. This evolution coincided with a reduction of the sales volume by around 3% of the Community industry and a corresponding loss in market shares in the exact proportion that the exporting countries concerned gained them (i.e. by around 7 percentage points). (104) In this context, the Commission paid particular attention to the fact that the imports of the product concerned occupy a relatively small market share (together 8.7%), as opposed to the Community industry, which had a 73.6% market share in the IP. The imports made by the Community industry from plants owned in third non-EC countries is dealt under recital (116). Firstly, it should be noted that market shares of the countries concerned are individually not only above the de minimis threshold (1% of EU consumption), but also substantial. Secondly, the product concerned is standardised and sold in a transparent market. Therefore, even relatively small quantities offered at low prices can have an immediate and substantial impact on pricing levels. In particular, once users, such as the tyre manufacturers, have granted their homologation to a producer's plant for a specific grade of rubber-grade carbon black, the material is considered to have the same basic intrinsic quality and physical characteristics, regardless of its origin. Therefore, the only relevant variable for the users becomes the price. 5.2.2. Prices of dumped imports (105) Although prices of dumped imports increased more (17%) between 1997 and the IP, than the ones of the Community industry (11%), they still significantly undercut the sales prices of the Community industry during the IP (by 12%) and have thus led to sizeable price suppression. This is illustrated by the fact that the Community industry operated at breakeven during the IP, whilst it could have achieved a much higher return in the absence of dumping practices. (106) In 1997, import volumes from the countries concerned were relatively small. However, by selling carbon black at extremely low prices, they were able to gain market shares. Once they had established themselves on the European market, the exporting producers in Egypt and Russia were able to raise prices and margins whilst continuing to undercut Community producers' prices. (107) It should also be noted that, like for Community producers, the production costs of exporters in the countries concerned are closely tied to the price evolution of oil. 5.2.3. Alleged similar price increases in the EU and the US rubber black markets (108) One interested party stated that if Egyptian and Russian imports had such a negative effect on the Community industry, price increases applied by the Community industry on the US and Community markets should logically be different. Yet, the interested party claimed that the Community industry had made identical price increases in both the US and the Community markets. This parity, it was claimed, would tend to negate any allegation of price suppression in the Community caused by Egyptian and Russian rubber black. The interested party concerned provided the Commission with evidence supporting its allegation. (109) The Commission has investigated the matter and allowed the Community industry to comment. It appears that the price evidence submitted by this party did not cover the IP but merely the period 1999/2000. Moreover it was found that the price evidence submitted was not a complete set of price developments, but was rather, in their own words, a "sample" of notices, referring for some of them to products not covered by the current proceeding. It was therefore not adequate to convey the exact picture of price developments over this period. Secondly, price increases in the Community were invoiced in euro, whilst price increases in the US were invoiced in US dollars. Between January 1999 and December 2000, the euro depreciated by 23% vis-à-vis the US dollar. It is therefore misleading to compare price rises for an oil-based product without taking into account exchange rate variations. Finally, the Commission asked the Community industry to provide it with US rubber black price data for the years 1997 to the IP consistent with the data presented in this regulation for the Community industry's EC sales. When duly adjusted for exchange rate variations, the result is a price increase for the US rubber grade carbon blacks of 31% between 1997 and the IP, whereas the price of Community industry's EC sales increased by 11% (see recital (87) above). 5.3. Effect of other factors 5.3.1. Imports from other third countries (110) Imports from other third countries increased over the period considered by around 18%, i.e., from around 79 600 tonnes in 1997 to 91 600 tonnes in the IP. Their market shares remained almost stable over the period considered, going from 7.5% in 1997 to 8.1% in the IP. Based on Eurostat data, average prices for imports from other third countries were substantially higher than either prices from the countries concerned and the Community industry's prices. Prices were 791 EUR/tonne in 1997 and increased by 29% between 1997 and the IP, to 1 017 EUR/tonne. As concerns the individual market shares of the other third countries, all of them, with the exception of the imports from Hungary, were at de minimis levels during the IP, i.e. they were lower than 1% of the Community consumption. (111) Market share of imports from Hungary amounted to 2.2% of the Community consumption during the IP, slightly decreasing compared to 1997, when it amounted to 2.5%. The Hungarian import volumes decreased by 7% during the period considered, from 26 600 tonnes in 1997 to 24 550 tonnes in the IP. Average prices for Hungarian imports have risen by 21%, from 523 EUR/tonne in 1997 to 633 EUR/tonne in the IP. For comparison, Community industry's prices during the IP were at 588 EUR/tonne. (112) Given the negligible volumes represented by each individual country, with the exception of Hungary, the relative stability in terms of market shares and the fact that their average prices increased faster and were significantly higher than the ones of both the countries concerned and the Community industry, it is concluded that the imports from the other third countries did not contribute to the material injury suffered by the Community industry. The same conclusion is drawn with reference to Hungary taken in isolation, in light of its decreasing import volumes and market shares and its prices which, on average, were higher than the prices of the Community industry. 5.3.2. Increase in raw material prices (113) Certain interested parties claimed that the injury suffered by the Community industry was caused by the increase in the raw material prices and not by the dumped imports. (114) The investigation showed that the prices of raw material, i.e. oil and gas, rose dramatically in 1999 and 2000. As previously explained (see recital (88) above), oil and gas represented more than 50% of the total costs of production of the Community industry in 2000 and the IP. Consequently, costs of production have been heavily affected by the price developments of oil and gas observed in 1999 and 2000. However, because of the price pressure of the imports from the countries concerned, the Community industry was unable to raise its own sales prices to a reasonably profitable level. Indeed, prior oil price increases did not lead to comparable injury but could be passed on to customers. This argument is, therefore, rejected. 5.3.3. Own imports of the Community industry from other third countries (115) Certain interested parties argued that the injury suffered by the Community industry was the result of its own imports from other third countries for resale on the Community market, namely Hungary, Poland, the Czech Republic, the US and Brazil, where the Community industry has production plants. (116) The investigation established that during the IP, one Community producer imported the product concerned from Hungary and Brazil, while another imported the product concerned from the Czech Republic and the US. The third Community producer, contrary to the claims made, did not import the product concerned from Poland or from any other third country. Community producers import the product concerned essentially to complement the range of products supplied to their customers. (117) Imports from Hungary (already dealt in recital (111) above) represent the only sizeable volume (2.2% of market share during the IP). As already mentioned in recital (111), prices for imports from Hungary were, during the IP, above that of the Community industry. Virtually all of the imported quantities from Hungary, as reported by Eurostat, can be attributed to the relevant Community producer. All other import volumes made from the facilities owned by Community producers in the Czech Republic, the US and Brazil were individually and collectively at de minimis. Considering among others the negative developments related to market shares, sales volumes, employment and in particular to profitability, return on investment and cash flow, no indications could be found that these imports contributed to the injury as described in recital (100) above. 5.3.4. Alleged inefficiency of the Community industry (118) Certain interested parties claimed that the injury suffered by the Community industry is the result of its inefficiency. (119) It has not been contested that the Community industry is at the forefront in research and development, continuously innovating the product concerned by developing new grades of carbon black. The Community industry has consistently carried out investments for rationalisation, for quality improvement and for compliance with the high European environmental requirements. In addition, the Community industry has made rationalisation efforts in order to reduce production costs. This is particularly evidenced by the decrease in the number of employees and the rise in productivity. Even taking out the job losses linked to the closures of two production units in 2000, employment has declined by 201 employees, i.e. by 10%, between 1997 and the IP. This rationalisation effort is mirrored by the fact that productivity per employee has increased by 15% over the period examined, a figure that compares favourably with medium term productivity gains observed in the Community economy at large (1.5% per year). This argument is therefore rejected. 5.3.5. Export performance of the Community industry (120) The Community increased its export sales between 1997 and the IP by about 8%, from about 65 000 tonnes to about 70 000 tonnes, the major increase taking place in 2000. Export sales represented 7% of the total sales of the product concerned of the Community industry during the IP. On this basis, the Community industry has shown itself to be competitive. The export activity cannot therefore have contributed to the injury suffered by the Community industry. 5.3.6. Strong market position of the Community industry (121) It has also been considered whether the market position of the Community industry, holding almost 74% market share, would be such as to undermine the causal link between the dumped imports and the material injury suffered by the Community industry. (122) However, the fact that the price rises of the Community industry were in line with the general price increases observed in the market, that oil represents a significant proportion of the full cost and the sales prices over time of the product concerned, and that the price rises were in any event insufficient to bring about a reasonable level of profitability, demonstrates that the Community industry is not able to dominate the market. Indeed, this is particularly underlined by the Community industry being unable to fully pass on the effect of the considerable increases in oil prices, which resulted in a mere "break-even" financial situation. (123) Finally, it should also be noted that the main customers for rubber-grade carbon blacks are themselves very large companies. These important customers, which buy in big volumes, would also appear to exert their own price pressures on the market (see recital (125) below), which obviously is facilitated by the existence of dumped imports. For these users, there is de facto price transparency. As a result, in spite of its large share of the market, the Community industry does not enjoy a correspondingly strong price-setting power. 5.3.7. Role of the other Community producer (124) The impact of the other Community producer on the situation of the Community industry was also examined. It was found that no significant adverse impact could have resulted from the other Community producer since this company is in fact not competing on the free market (see recital (65)) and is in a neutral position between the Community industry and the users, which share its ownership. 5.3.8. Price pressure from users (125) Users may have exerted a price pressure on the Community industry. However until 1999, the Community industry was able to react to it and be profitable. After 1999, when the Community industry was increasingly faced with dumped imports from the countries concerned, it became extremely difficult to fully pass on to their customers the effect of high oil prices observed from that year onwards. 5.3.9. Conclusion on causation (126) In conclusion, it is confirmed that the material injury of the Community industry, which is characterised by a decline in market share, sales volume, profitability, return on investment, cash flow, employment and depressed prices was caused by the dumped imports concerned. Indeed, the effect of imports from other third countries, of the increase in raw material prices, of the own imports of the Community industry, of the alleged inefficiency of the Community industry, of the export performance of the Community industry, of the strong market position of the Community industry, of the role of the other Community producer, of the price pressure from users on the Community industry's negative developments as described in the preceding sentence were practically non-existent. (127) Given the above analysis which has properly distinguished and differentiated the effects of all the known factors on the situation of the Community industry from the injurious effects of the dumped imports, it is hereby confirmed that these other factors as such do not break the causal link between the injury suffered by the Community industry and the dumped imports. 6. Injury elimination level (128) In view of the conclusions reached with regard to dumping, injury, causation, and as set out below with regard to Community interest, definitive anti-dumping measures should be taken in order to prevent further injury being caused to the Community industry by the dumped imports. To establish the level of duty, account has been taken of the dumping margins found and of the amount of duty necessary to eliminate the injury suffered by the Community industry. (129) To establish the level of duty needed to remove the injury caused by dumping, injury margins have been calculated. The necessary price increase was determined on the basis of a comparison of the weighted average import price with the non-injurious price of rubber-grade carbon black sold by the Community industry on the Community market. (130) The non-injurious price has been obtained by taking the actual, verified sales prices of the Community industry, adjusting these to a break even point, and then finally adding a profit margin that may reasonably have been achieved in the absence of injurious dumping. The profit margin used for this calculation is 7% of turnover. (131) The complainant submitted that a profit margin of 13% over capital employed (ROCE) would be appropriate. It argued that this level of return was necessary to re-invest for the long term and to achieve an adequate return on equity for shareholders. (132) The Court of First Instance has ruled that it is normal Community practice that the profit margin must be limited to the profit margin which the Community industry could reasonably count on under normal conditions of competition, in the absence of dumped imports [8]. Accordingly, it was within these parameters that the question of profitability was considered. [8] Case T-210/95 ruling dated 28 October 1999, recital 60. (133) It should be recalled that between 1997 and 1999, the Community industry average profit margins were above 10% (over turnover). This indicates that the Community industry is able to make good returns when fair market conditions prevail. Nevertheless the market conditions in this period are not necessarily representative of the market conditions existing during the IP. Accordingly, an examination of any underlying changes in the market between the beginning and the end of the period considered was also made. (134) The main users of the product concerned, the tyre manufacturers, were faced with an economic slowdown and a decline in their profitability in 2000 and the IP. From the submissions made in this case, it is clear that their ability to pass on price rises to their customers (car manufacturers in the first place) has declined over the period considered. In order to preserve their own profits or to reduce their losses, they will resist as much as possible to any increase in their own costs. At the same time raw material prices for the Community industry have risen. In these circumstances, it is concluded that there was no likelihood of the Community industry achieving double figure profitability during the IP. Taking all circumstances into account, 7% (over turnover) seems to be a reasonable profit that the Community industry could have achieved during the IP in the absence of dumped imports. (135) The difference resulting from the comparison between the weighted average import price and the non-injurious price of the Community industry was then expressed as a percentage of the total CIF import value. The following injury margins [9] have been calculated: [9] For confidentiality reasons only ranges are presented. - Alexandria Carbon Black: 12.1% - Omsky Zavod Technicheskogo Ugleroda OJSC : 29.3% - Jaroslavsky Technichesky Uglerod OJSC: 55.6% - Tuimasytechuglerod OJSC: 50.8% (136) In light of the foregoing, it is considered that, in accordance with Article 9(4) of the basic Regulation, a definitive anti-dumping duty should be imposed in respect of imports originating in Egypt and Russia, at the level of the dumping margins found, since these are lower than the injury margins found, for all the exporting companies concerned. 7. COMMUNITY INTEREST 7.1. Preliminary remark (137) In accordance with Article 21 of the basic Regulation, it was examined whether the imposition of anti-dumping measures would be against the interest of the Community as a whole. The determination of the Community interest was based on an examination of all the various interests involved, in particular those of the Community industry, the unrelated importers and the users of the product concerned. (138) In order to assess the likely impact of the imposition or non-imposition of measures, the Commission requested information from all interested parties which were either known to be concerned or which made themselves known. Questionnaires were sent to the three complainant Community producers, the other producer in the Community, 12 unrelated importers, 21 users and six users' associations. The three complainant Community producers, the other known Community producer, four importers and eight users replied to the questionnaires. One users' association made submissions. (139) On this basis, it was examined whether, despite the conclusions on dumping, on the situation of the Community industry and on causation, compelling reasons exist which would lead to the conclusion that it is not in the Community interest to impose measures in this particular case. 7.2. Interest of the Community industry 7.2.1. Production capacity of the countries concerned (140) On the basis of information provided by exporting producers in the countries concerned, production capacity increased from 207 000 tonnes in 1997 to 272 000 tonnes in 2001. For the years 2002 to 2004, both Egyptian and Russian co-operating exporters foresee a stabilisation of their production capacity. As regards the past years, the Egyptian producer is responsible for virtually all of the rise observed in cumulated capacity. Indeed, Egyptian capacity has more than doubled between 1997 and 2000, while Russian capacity only marginally increased. (141) The information (including the forecasts) presented in the attached table comes from the co-operating exporters themselves. This shows that the existing, verified capacity currently amounts to 272 000 tonnes per year, a figure which has to be compared with the tonnage imported in the EC from Egypt and Russia during the IP (approximately 100 000 tonnes). (142) As concerns Russia, at the moment, the production and export of rubber-grade carbon black suitable for the specific needs of European tyre manufacturers is concentrated essentially with two large co-operating suppliers (Omsk and Yaroslav). However, there is little doubt that the potential for exports to the Community is larger in the medium term, provided that some modernisation of the existing industrial base is carried out. >REFERENCE TO A GRAPHIC> (143) The Egyptian producer has repeatedly expressed its ambition to become the world's largest carbon black producer at a single location, targeting an output capacity of 180 000 tonnes per annum in the medium run. Given the limited size of the domestic Egyptian market (estimated at 12 000 tonnes) and the growth rate of Egyptian exports to the Community observed in recent years, the likelihood of significantly increased imports is clear. It should also be remembered that this producer is part of a global player, which has shown in the past its willingness and ability to shift production from one plant to another. (144) Finally, the investigation has shown that several co-operating users are testing the Egyptian and the Russian material for regular supply. Is should be noted that not all the co-operating users as yet import the product concerned from the countries concerned. (145) As a conclusion, there is a clear potential for an even larger increase of imports at dumped prices, should measures not be imposed. 7.2.2. Risk of imminent further capacity shutdown in the Community (146) It is recalled that in 2000, one Community producer closed two production units, in France and the UK (see recital (82) above). There are clear signs that, should dumped imports continue, further plant closures by the Community industry are likely to occur. Indeed, another Community producer has very recently made formal steps to close production lines in some member states. 7.2.3. Conclusion on Community industry interest (147) It is very likely that without measures to counter the injurious effect of dumped imports, the Community industry will lose more market share, will observe a further deterioration of its financial situation and will be forced into plant shutdowns. The Community industry has proven to be a structurally viable industry. This was confirmed by the positive development of its economic situation at a time when competition was not distorted by dumping practices. Indeed, during the period 1997 to 1999, when the market share of the imports from the countries concerned was still relatively low (2% to 3%), its profitability was good (between 10% and 16%). Were measures to be imposed, it is likely that the Community industry would be able to improve its financial situation, being able to regain market share and increase its sales volume. This should allow an increase of capacity utilisation and a consequent reduction of fixed-costs. 7.3. Interest of unrelated importers (148) The Commission sent questionnaires to 12 unrelated importers, of which four replied. The co-operating importers opposed the imposition of anti-dumping measures on the grounds of difficulties in finding new suppliers and of possible job losses. (149) With respect to the difficulties in finding new sources of supply should measures be imposed, the investigation established that other sources of supply outside the Community with no duty in force would still be available. Indeed, imports from other third countries amounted to 8.1% of the Community consumption during the IP. While approximately 2.7 percentage points of these imports originated from companies related to the Community industry (see recital (116) above), the remaining 5.4 percentage points were not controlled by the Community industry. This source of carbon black, which can be increased with a return to fair market conditions, is available to all users of the product concerned. (150) As regards the possible job losses, the co-operating importers themselves admitted that this would affect a very small number of jobs, corresponding to the number of employees involved in the trading of the product concerned, out of a total of 276 employees. It should be noted that for the co-operating importers the activity of the product concerned represented on average around 2% of their total activity in terms of turnover. (151) In addition, it has been found that rubber-grade carbon blacks are sold essentially directly to the users, while sales via importers are relatively limited. Indeed, the investigation showed that, during the IP, co-operating importers accounted for only 2% of Egyptian imports into the Community of the product concerned and for 28% of the Russian imports. During the same period, imports made directly by the co-operating users accounted respectively for 71% and for 67% of the imports concerned. (152) On the basis of the above, it was concluded that the imposition of measures would, overall, not have a significant negative effect on importers. 7.4. Interest of users (153) As mentioned in section 2.1, rubber-grade carbon blacks are used in the manufacture of tyres and of other rubber goods. The Commission sent questionnaires to 21 users and six users' associations and received replies from eight tyre manufacturers and submissions from one users' association, BLIC (Bureau de liaison des Industries du caoutchouc). During the IP, the co-operating users imported 71% of the imports into the Community of the product concerned from Egypt and 67% of the imports from Russia. They accounted for around 82% of the Community industry's sales and around 60% of the consumption of rubber-grade carbon blacks in the Community. Not all the eight co-operating users import the product concerned from Egypt and Russia. 7.4.1. General (154) Based on their own submission, the eight co-operating users account for 93% of the Community passenger car (replacement sales channel) tyre market. (155) Co-operating users sell their products via two distinct sales channels : the original equipment (OE) sales channel, which represents some 28% of their total tyre sales and the replacement tyres sales channel (72%). The pricing power of tyre manufacturers is different within these two sales channels. Within the OE sales channel, the tyre manufacturers are "price takers" (due to the pressure of car/truck manufacturers), while within the replacement sales channel, they are more of "price makers", the result being an OE tyre price approximately 25% lower than a replacement tyre price. In the first case, tyre manufacturers are tied to the activity of the automotive sector, which was already seeing falling sales volumes in the IP. The tyre industry alleges that due to their leveraged purchasing power and to fierce competition, car makers request and obtain a drop in OE tyre prices by 2% to 6% annually. During the investigation, several co-operating users stated that they make no profit on the OE sales channel. Conversely, profits were made in the replacement sales channel, where tyre manufacturers either own their own distribution channel, or deal with numerous small distributors with limited purchasing power. For this reason, smaller tyre manufacturers had deliberately decided to be present only on the replacement market. The investigation has shown that, on a weighted average, co-operating users made a profit of 3 to 5% during the IP, at a time when the Community industry was at break-even. It is therefore considered that, although the co-operating users are faced with a certain market pressure, they remain in a profitable financial position. 7.4.2. Impact of anti-dumping measures on users (156) The co-operating users claimed that the imposition of anti-dumping measures would have a serious adverse impact on their financial situation since they would not be able to pass on the expected increase in costs resulting from the imposition of anti-dumping measures to their customers. 7.4.2.1. Cost effects (157) The investigation showed that rubber-grade carbon blacks represent on average 5% of the manufacturing costs of co-operating users and 3.7% of their total costs. The weighted average duty for the countries concerned is 17%. (158) As to the possible cost impact on users, the following has been considered. (159) One extreme scenario could be that (scenario 1) all rubber-grade carbon black consumption, including the one supplied by the Community industry, is impacted by the 17% price increase, i.e. that not only would import prices increase, but that the Community industry would likewise increase its prices. (160) It was calculated that this would increase co-operating users' total costs of production by 0.7% and therefore would impact the co-operating users' profitability by 0.7 percentage points, further assuming that they would not be able to pass on cost rises to their customers. The investigation has indeed shown that, unlike the Community industry, co-operating users were making profits in the IP (between 3 and 5% on turnover on average). (161) Another possibility could be (scenario 2) that only rubber-grade carbon black imported from Egypt and Russia is impacted by a 17% price increase. In that case, co-operating users' total costs of production would rise by 0.1% and therefore the impact on profits would be of 0.1 percentage point. (162) On balance, it is estimated that the actual outcome is likely to stand in the middle of these two scenarios, for the following reasons. (163) Indeed, probably the Community industry will increase its prices to a certain extent, but it will also likely take advantage of the relief in price pressure to regain lost market share by pricing competitively vis-à-vis Egyptian and Russian prices, making a 17% price increase unlikely. In addition, the Community industry was operating below full capacity during the IP. If they were to return to full capacity, this would reduce unit costs and permit higher profitability at lower prices. In addition, some 10% of the consumption of rubber grade carbon black is sourced from alternative suppliers (half of DGW production plus imports not controlled by the Community industry). Therefore, it is unlikely that a general price rise will happen or even be possible. (164) The above cost impact calculations also assume that the increase in costs is absorbed in full from profits. A more realistic scenario would however be that any extra-cost is passed on at least in part to customers and thus will not fully impact on profits. In fact, co-operating users have argued that they will not be able to pass on the price increase to their OE customers. However, given the cumulated market share of the co-operating users (93% of the Community tyre market) and in particular in the context of scenario 1, whereby they would all be affected in a linear fashion, there should be some possibility to pass on price rises, at least in part. The same reasoning applies a fortiori in the replacement tyre segment, which represents 72% of the total tyre sales. 7.4.2.2. Price effects (165) Another way to examine the impact is to look at the price side. (166) The investigation has shown that the average ex-works sales price for a "common" passenger car tyre in the replacement segment is around 40 EUR. For a truck tyre, this would be approximately 203 EUR. Under scenario 1, the price of a car tyre and of a truck tyre is increased by respectively 26 eurocents and 1 euro 28 cents, i.e 0.7% in both cases. Under scenario 2, price increases are respectively of 2 eurocents and 11 eurocents, i.e 0.1 % in both cases. (167) As to passenger car tyres sold at retail level to the end customer, based on an average unit price of around 59 EUR/tyre, the price increase would be 30 eurocents under scenario 1 and 3 eurocents under scenario 2. (168) As to OE tyres, for a car tyre worth 30 EUR and a truck tyre worth 182 EUR, results would be as follows. Under scenario 1, the price of a car tyre and of a truck tyre is increased by respectively 19 eurocents and 1 euro 15 cents, i.e 0.7% in both cases. Under scenario 2, price increases are respectively of 2 eurocents and 10 eurocents, i.e 0.1% in both cases. >TABLE POSITION> The above is summarised in the attached table. 7.4.3. Competition with tyre producers from third countries (169) Some co-operating tyre producers claimed that the imposition of measures would lead to them facing increased competition from imported tyres which would not be subject to the effect of the duties. As demonstrated in 7.4.2 above, any price increase and therefore deterioration of this competitive situation is likely to be minimal. It should also be recalled that the tyre market in the Community is supplied to a degree of 93% by the co-operating users who enjoy the advantage of being close to their customers. (170) The co-operating users also claimed that the proportion of tyres produced in the Community and exported to third countries would be placed in a situation of competition distortion vis-à-vis tyre producers not subject to anti-dumping measures on these third country markets. Firstly, however, the inward processing regime would allow the producers of tyres intended for export to claim back the anti-dumping measures levied on carbon black input imported from Egypt and Russia. In addition, sales of tyres to third countries represented some 27% of the total sales of tyres during the IP. While some co-operating users are indeed net exporters of tyres, some others are net importers, which implies that part of their Community sales will not be affected by measures at all. (171) Users also claimed that in such circumstances, they may be forced to re-locate production facilities outside the Community. A process of relocation outside the Community has indeed been undertaken by a number of tyre producers in the recent past. However, this appears to be for strategic reasons in order to locate production closer to expanding markets and also to reduce labour costs. There is no evidence that the impact of the measures will either materially accelerate this process or lead to the distortion of the Community tyre market. 7.4.4. Competition aspects 7.4.4.1. Strong market position (172) It was considered whether the strong market position held by the Community producers was such as to preclude competition taking place on the Community market should measures be imposed. (173) During the IP, the Community industry held a market share of 73.6%. When taking into account the imports made by the Community industry from Hungary, the Czech Republic, the USA, and Brazil, this would result in a market share of 76.3%. This leaves a market share of 23.7% not dependent upon the Community industry. (174) Although it is possible that, following the imposition of measures, sales volume and market share of the imports concerned might decrease, imports from other third countries would still represent an alternative source of supply. Those imports accounted for 8.1% of the Community consumption (5.4% when deducting the imports made by the Community industry) and around 48% of the imports into the Community market during the IP (32% when deducting the imports made by the Community industry from their own facilities). In addition, the return to normal market conditions should make the Community market more attractive to these other sources of supply. (175) It should also be recalled that the aim of anti-dumping measures is not to stop access into the Community of imports against which the measures are imposed, but to eliminate the impact of distorted market conditions arising from the presence of dumped imports. (176) Finally, it should also be considered that all Egyptian and Russian producers (with duties based on the dumping margin) would, after the imposition of measures, still sell at a price that is below the non-injurious price calculated for the purpose of the duties. 7.4.4.2. Difficulties in switching to alternative sources of supply (177) Users argued that, due to the extensive authorisation procedure required to approve a new carbon black supplier, which takes 2 to 5 years, it would be impossible to shift rapidly from one supplier to another following any imposition of measures. (178) The investigation confirmed that an authorisation procedure is indeed required to approve a new carbon black supplier, although the time scale can be substantially less than 2 years (e.g. minimum six months). As a consequence, it might take some time to the tyre manufacturers to switch to sources of supply alternative to Egypt and Russia. It is likely therefore that they will keep on buying from the countries concerned (although paying the duties) before eventually reverting to other sources of supply. (179) Moreover, it was found that approximately 20% of the consumption of the product concerned is used in non-tyre rubber goods, which do not require this authorisation procedure. These users will, therefore, be able to switch more rapidly to other sources of supply. (180) Finally, given the nature of the product concerned and its relatively large transport costs, it is in the interest of the users themselves to keep large, reliable and efficient Community suppliers close to their own production facilities. 7.4.4.3. Competition between Community producers (181) Several interested parties alleged that the Community industry had price agreements and implemented price rises in a joint manner. Evidence of a more or less simultaneous price rise in April 2002 was submitted by interested parties to this proceeding. (182) Although the argument refers to a period subsequent to the IP, the Commission assessed the matter further, within the framework and limitations of the Basic Regulation, in order to determine whether the possible impact on the investigation in terms of competition on the Community market is significant. Firstly, it should be noted that no decision on a possible infringement of the competition rules has been taken by the Commission. While an anti-trust proceeding has been initiated, this should not, in the absence of any evidenced findings, deprive the Community producers of carbon black of their right to obtain relief under the Basic Regulation against unfair trade practices. Secondly, on the merits of the claim, the Commission have also received evidence that, over the period considered, Community producers lost sales volumes to other Community producers, which can be considered as indicating that competitive behaviour has in these instances taken place between Community producers. (183) Additionally, as previously stated, rubber-grade carbon blacks production costs are highly dependent on the price of oil. The price increase, announced in April 2002, followed a 30% price increase of oil, which took place in February 2002 and which was only partially covered by the subsequent price increases announced. The fact that the price increases were simultaneous may have its reason in the fact that all the three Community producers faced the same cost increase and were all in a situation of profit squeeze. Indeed, in their longer-term contracts the Community producers generally foresee quarterly adaptations of their sales prices based on the oil price. (184) In view of these findings, and within the framework and limits of the Basic Regulation, it cannot be concluded at this stage that the overall competition situation on the Community market would be such as to constitute a compelling reason of Community interest against measures. (185) Furthermore, according to Article 20(1) of Council Regulation 17 of 6th February 1962, which lays down procedural rules for investigations according to articles 81 and 82 (EC), "information acquired as a result of the application of articles 11,12,13 and 14 shall be used only for the purpose of the relevant investigation". Article 20(2) prohibits the disclosure of any information acquired under the provisions of Reg. 17. In the present circumstances, this implies that the information gathered in the context of an anti-trust investigation can only be used for the purpose for which it was gathered. Hence, such information could in any event not be used for the purpose of the anti-dumping investigation. Upon termination of the competition investigation, the Commission's anti-dumping will assess the implications for the present anti-dumping case. Should the Commission establish that the competition rules of the EC Treaty have been infringed, the Community authorities will expeditiously undertake the necessary steps to ensure that the companies involved do not benefit from anti-dumping measures. 8. UNDERTAKINGS (186) The two Russian exporting producers which were granted market economy status submitted offers of price undertakings before the expiry of the deadline for comments subsequent to the disclosure of the definitive findings. (187) These applications, in the current form, were considered impracticable and thus unacceptable mainly because the sales of these two exporting producers to the Community during the investigation period were made indirectly, via traders. The offers received did not explain clearly how this system, unacceptable under the terms of an undertaking, would be changed. (188) In the light of these facts, it was concluded that a proper monitoring could not be satisfactorily guaranteed. (189) The interested parties were informed accordingly and the reasons why the undertaking offered could not be accepted were disclosed in detail to the exporters. 9. CONCLUSION (190) For the above reasons, it is unlikely that the possible impact on importers, users and on competition would offset the positive effect on the Community industry of the measures against injurious dumping. Accordingly there are no compelling reasons that would make the imposition of anti-dumping measures on injurious dumped imports originating in the countries concerned, as proposed in recital 135, against the Community interest. HAS ADOPTED THIS REGULATION: Article 1 1. A definitive anti-dumping duty is hereby imposed on imports of rubber-grade carbon blacks for which the "Iodine Adsorption" value is of 20 mg/g or higher, the "DBP Absorption" value is of 25 to 200 ml/100g and the "Individual Pellet Hardness" value is of 15g or higher [10], currently classifiable within CN codes ex 2803 00 10 (TARIC code : 2803 00 10 10) and ex 2803 00 80 (TARIC code : 2803 00 80 10) originating in Egypt and Russia. [10] For the purpose of this Regulation, the Iodine Adsorption, the DBP Absorption and the Individual Pellet Hardness are measured following the standard test methods issued by the American Society for Testing and Materials (ASTM). The designations of these standards are: ASTM D1510-02a for the Iodine Adsorption, ASTM D2414-02a for the DBP Absorption and ASTM D5230-00e1 for the Automated Individual Pellet Hardness. 2. The rate of duty applicable to the net-at-Community frontier price, before duty, for products produced by the following companies shall be as follows: >TABLE POSITION> Unless otherwise specified, the provisions in force concerning customs duties shall apply. Article 2 This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Communities. This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, [...] For the Council The President