(47)

For export sales to the Union through related importers located in the Union, following provisional disclosure, the two Malaysian exporters claimed that the profit margin used for the construction of the export price pursuant to Article 2(9) of the basic Regulation was inappropriate. One of the companies supported its claims by the IP profitability figures of some of their European unrelated traders. In this regard, it should be noted that these figures cannot be considered representative, as the traders indicated trade in a wide range of chemical products, and in one case the trader is also a producer. Therefore, they are rejected as a reliable benchmark. The second company claimed that its related importer in the Union should not be treated as a distributor but as a related agent and therefore the SG&A cost and profit adjustment in the construction of the export price should not exceed the percentage of commission normally granted to independent agents trading in the sector. The company submitted its agreements with independent agents as a benchmark. The claim was further developed after the definitive disclosure by arguing that in the tungsten electrodes case ( 9 ) the profit of a related importer was considered reliable and accepted in the construction of the export price. In reply to this claim it should be noted that Article 2(9) of the basic Regulation does not provide for different treatment between related importers allegedly acting as distributors and importers allegedly acting as agents. Article 2(9) requires adjustments for all costs incurred between importation and resale and for profits accruing. Furthermore, it should be noted the investigation showed that the related company is located in the Union. It handles, inter alia, the customer orders and the invoicing of the product concerned produced by its related exporter as well as is responsible for arranging the Union customs clearance. The fact that certain activities are performed by the related exporter prior to importation does not mean that the export price may not be reconstructed on the basis of the resale price to the first independent customer with the necessary allowances being made pursuant to Article 2(9). Differences in functions claimed by the company as compared to other related importers are normally reflected in the SG&A expenses where the Commission used actual data of the company. Therefore, this claim can not be accepted. It should be further noted that in the abovementioned tungsten electrodes case the related importer was further integrated into the downstream product produced by the related group and was also performing other activities than those of a trading company. Therefore, for such complex structure, the profit of unrelated importers was found not to be representative enough. The situation in that case is not comparable with the situation of the Malaysian related importer in question, which only performs trading functions. Nevertheless, for the reasons explained in recital 29, the profit margin in question is adjusted to 5 %. In the absence of any other comments concerning the determination of export price, the provisional findings in recitals 52 to 54 of the provisional Regulation, but for the amendment as explained above, are hereby confirmed.