Council Regulation (EC) No 368/98 of 16 February 1998 imposing a definitive anti-dumping duty on imports of glyphosate originating in the People's Republic of China and collecting definitively the provisional duty imposed
Date: 1998-02-16
Institutions: Council of the European Union
Subjects: China, anti-dumping duty, chemical product, import, originating product

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Official Journal of the European Communities

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I

(Acts whose publication is obligatory)

COUNCIL REGULATION (EC) No 368/98

of 16 February 1998

imposing a definitive anti-dumping duty on imports of glyphosate originating in
the People’s Republic of China and collecting definitively the provisional duty
imposed

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community,

Having regard to Council Regulation (EC) No 384/96 of
22 December 1995 on protection against dumped
imports from countries not members of the European
Community (1), and in particular Article 9(4) thereof,

Having regard to the proposal submitted by the Commis-
sion after consulting the Advisory Committee,

Whereas:

A. PROVISIONAL MEASURES

By Commission Regulation (EC) No 1731/97 (2)
(hereinafter referred to as the ‘Provisional Duty
Regulation') provisional anti-dumping duties were
imposed on imports of glyphosate falling within
CN codes ex 2931 00 80 and ex 3808 30 27 origin-
ating in the People’s Republic of China.

B. SUBSEQUENT PROCEDURE

Following the imposition of the provisional anti-
dumping measures, a number of interested parties
submitted comments in writing.

Importers in the Community, Chinese exporters,
and both complainant Community producers
requested and were granted a hearing.

(1)

(2)

(3)

(4)

(5)

The Commission continued to seek and verify all
information deemed necessary for its definitive
findings.

(8)

Parties were informed of the essential facts and
considerations on the basis of which it was
intended to recommend the imposition of defin-
itive anti-dumping duties and the definitive collec-

(1) OJ L 56, 6. 3. 1996, p. 1. Regulation as amended by Regula-

tion (EC) No 2331/96 (OJ L 317, 6. 12. 1996, p. 1).

(2) OJ L 243, 5. 9. 1997, p. 7.

tion of amounts secured by way of provisional
duties. They were also granted a period within
which to make representations subsequent to this
disclosure.

(6)

The oral and written comments submitted by the
interested parties were considered, and, where
deemed appropriate,
in the
Commission’s definitive findings.

taken into account

C. PRODUCT UNDER CONSIDERATION AND

LIKE PRODUCT

1. Product under consideration

(7)

As stated in recital 10 of the Provisional Duty
Regulation,
the product under consideration is
glyphosate. This product can be produced in
different grades or forms of concentration of which
the main ones are the following:
formulated
(generally with 36 % glyphosate content), salt (with
62 %), cake (with 84 %) and acid (95 %).

In order to reduce the costs of
transportation,
distributors normally purchase glyphosate in a
concentrated form (usually acid, but also salt) and
further process it to obtain the formulated gly-
phosate, the only form that can be used as an
end-product, i.e. as a non-selective herbicide.

The Chinese exporters and a number of importers
in the Community claimed that the various forms
of glyphosate referred to above could not be
considered as one product because they presented
substantial differences
terms, customer
structure, price and end-use. One importer argued,
in particular, that the transformation of acid into
formulated glyphosate required further chemical
processing and that
resulting formulated
the
product was of a different chemical composition

in cost

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18. 2. 98

than the acid form. The importers considered that,
as a consequence, the acid form, which accounted
for the majority of all glyphosate imported from
the People’s Republic of China during the invest-
igation period and the formulated form, which
accounted for
the
the majority of
Community industry in the same period, could not
be considered as a single product.

sales of

(9)

However, these claims were not considered justi-
fied for the following main reasons:

(cid:190) it was found in the course of the investigation
there were no basic differences in the
that
chemical characteristics and properties of all
abovementioned forms of glyphosate. Indeed,
although the acid constitutes an intermediate
stage in the production of the formulated form,
the acid already contains the essential chemical
properties of the formulated product,

(cid:190) furthermore,

although the

abovementioned
forms of glyphosate have different grades of
in
concentration,
cost or price, the transformation costs from one
to the other are not substantial,

justifying differences

thus

(cid:190) finally, it should be noted that all forms are
dedicated to the same end-use, i.e. as a herbi-
cide, albeit in the case of acid, salt and cake,
following further processing into formulated,
and cannot be used for any other purpose.

(10)

It was therefore concluded that all forms should be
considered as one product for the purpose of the
investigation,
glyphosate
concentration.

irrespective

the

of

2. Like product

(11) One importer claimed that the glyphosate produc-
tion process used in the Community and in Brazil
(the analogue country) is different from that used
in the People’s Republic of China and that, as a
consequence,
the products resulting from these
different processes are not alike.

(12)

(13)

The investigation has confirmed that the produc-
tion process used in the Community and Brazil, on
the one hand, and that used in the People’s
Republic of China, on the other, were different.
However,
glyphosate produced by both
processes was found to be identical in all respects.

the

arguments,

absence of other

In the
it was
the glyphosate exported to the
confirmed that
Community by the People’s Republic of China
and that produced and sold by the Community
industry were alike in all
respects. The same
applied to glyphosate produced in Brazil, when
compared to glyphosate exported from the People’s
Republic of China and to that produced in the
Community. All these products are therefore like
products within the meaning of Article 1(4) of

(14)

(15)

(16)

(17)

Regulation (EC) No 384/96 (hereinafter referred to
as the ‘Basic Regulation').

D. DUMPING

1. Analogue country

Some exporters and importers
reiterated their
opposition to the choice of Brazil as analogue
country and made a number of counter-proposals.
The exporters and importers in particular argued
that the Commission did not do enough to verify
whether the alternative countries proposed were
more appropriate than Brazil.

In that respect,
the Commission made a close
examination of the counter-proposals. It should be
noted that in Indonesia all producers refused to
cooperate with the Commission’s
investigation.
Whereas in Brazil there are two producers and
significant imports of the product concerned, in
Argentina, Australia,
the
India
markets are largely denominated by companies
related to the main complaining producer located
in the Community, i.e. Monsanto. In those circum-
stances, it was concluded that none of the coun-
tries proposed were more appropriate than Brazil.

and Malaysia

2. Normal value

Exporters requested the Commission to give justifi-
the determination of a constructed
cation for
normal value for acid while domestic prices were
used for the formulated product.

In this respect it should be noted that as clarified
to the exporters in the course of the investigation,
normal value for acid was constructed pursuant to
Article 2(3) of the Basic Regulation because the
domestic sales to unrelated customers, although
they were sold in representative quantities, were
not sold in the ordinary course of trade. In the
absence of further arguments concerning the estab-
lishment of normal value, the provisional deter-
mintion is hereby confirmed.

3. Export price

(18)

In the absence of further arguments concerning
the establishment of export price, the provisional
determination is hereby confirmed.

4. Comparison

(19)

Exporters claimed that the Commission in deter-
mining the dumping margin had compared export
prices of acid with the weighted average normal
value of both acid and the formulated product. In
this respect it is noted that export prices for acid
were only compared with the normal value for
acid. The same method was used for formulated.
On that basis a weighted average dumping margin
was then calculated.

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5. Dumping margins

(20)

The methodology used to determine the definitive
dumping margin is the same as that used for the
calculation of the provisional dumping margin. In
the absence of any amendments to the establish-
ment of the normal value and the export price, the
provisional determination is hereby confirmed.

(21)

The dumping margin established for definitive
determinations expressed as a percentage of the cif
price at Community frontier, remains at 38,2 %.

E. INJURY

1. Consumption in the Community market

(22)

In determining total apparent consumption on the
Community market, the Commission added the
sales of Community producers to the imports into
the Community.

(23) A further examination of

third countries

the imports volumes
originating in both the People’s Republic of China
and other
resulted in minor
changes in the total volume of imports and, con-
sequently, of consumption figures for the period
examined. On this basis, Community consumption
increased by 130 % between 1991 and the invest-
igation period.

2. Volume and market share of imports

(24) A number of importers contested the determina-
tion of market share held by imports originating in
the People’s Republic of China, as established in
the provisional duty Regulation. They alleged that
this market share was overestimated because it did
not take into account the relative importance of
imports from other third countries, such as the
USA,
Japan, which,
according to these importers, were substantial
under Eurostat statistics.

Switzerland

India,

and

(25)

In this context, it is recalled that, at the provisional
stage, the determination of imports originating in
third countries other than the People’s Republic of
China, was based on information provided by
cooperating importers
in the Community. As
regards these imports, it was not considered appro-
priate to use Eurostat, because no precise figures
for these imports could be established under Euro-
stat statistics. Indeed, Eurostat is available per CN
code only. As the CN codes applicable to gly-
phosate are also applied to products other than the
product concerned this course of action was
it has been
deemed appropriate.
confirmed that as regards imports originating in
the USA (by far the largest single import quantities
declared under Eurostat), products other
than
glyphosate were imported under the same CN
code as glyphosate, during the period examined.
This would also appear to be the case as regards
imports from other origins, since for some of these
origins the import volumes reported by Eurostat

In addition,

largely exceeded the import volumes of glyphosate
reported by importers.

For the reasons stated above, and in the absence of
a different
information which would justify
approach,
imports originating in
the volume of
third countries other than the People’s Republic of
China was definitively determined on the basis of
information supplied by the importers.

stage,

(26) As regards imports originating in the People’s
Republic of China, at provisional
these
imports were based on Eurostat statistics, since the
Commission was not aware of products other than
glyphosate being imported from the People’s
Republic of China under the same CN codes as
glyphosate. However, at the definitive stage it was
considered appropriate to also base the findings
concerning the development of Chinese imports
on information supplied by the importers, since
this information was considered reliable.

(27)

(28)

(29)

The above analysis resulted in small changes in the
assessment of consumption (recital 23 above) and
consequently of the market shares of both imports
and sales of the Community producers.

Following the above, the total volume of dumped
imports of glyphosate originating in the People’s
increased continually and
Republic of China
substantially,
in 1991 to
from a very low level
1 487 tonnes in the investigation period. Gly-
phosate of Chinese origin was sold in its three
main forms (acid, salt and formulated) and was sold
in larger quantities in some Member States than in
others.

The market share of
these imports followed a
from very low levels
similar progressive trend,
between 1991 and 1993, to 9 % in 1994 and 11 %
in the investigation period,
i.e. showing a very
rapid rate of increase after 1993.

3. Prices of the dumped imports and price under-

cutting

(30) A number of arguments were put forward by both
the Community industry and importers regarding
the price undercutting assessment made at
the
provisional stage.

(31)

it

In this context,
is recalled that prices were
the formulated stage. In order to
compared at
ensure a fair comparison of prices, and given the
existence of a variety of types of formulated gly-
phosate on the market, the prices of which can
vary considerably both according to the concentra-
tion of the product and the type of surfactant used,
the Commission services
selected the most
common formulation, called ‘3A', which has 360 g
of glyphosate content per litre. Consequently, for
this comparison, one type of ‘3A' produced by the
Community industry, containing a special type of
surfactant
(alkylpolyoalkylammoniumquat),
designed to increase its efficiency, was excluded
from the calculation.

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(32) One Community producer argued, however, that
all types of formulations having identical concen-
trations are interchangeable from the consumer
surfactant used.
viewpoint
the
such types,
all
According to this producer,
including the one with the special
surfactant,
should therefore be used for a correct assessment
of price undercutting by Chinese formulations.

irrespective of

However, the information available indicated that
the product with special surfactant was of better
quality regarding efficiency and environmental
impact than other types of identical concentration
and, indeed, was sold at a price significantly higher
than that of more common ‘3A' formulations of
the Community industry. In order to ensure the
comparability of prices, the approach followed at
provisional stage was therefore maintained.

(33)

contested the prices used for

Importers
the
Chinese imports, which they argued were not
representative because Chinese imports of formu-
lated product accounted for a small percentage of
all
from the People’s
Republic of China during the investigation period.

glyphosate

imported

(34) As mentioned above it should be noted that the
for
price undercutting assessment was made
formulated product combining both the prices of
direct imports of formulated product provided by
one exporter, and the prices of formulated product
processed in the Community from Chinese acid,
provided
the
Community. On this basis,
the prices used
accounted for a representative volume of all
imports of glyphosate originating in the People’s
Republic of China.

cooperating

importers

by

in

(35) On the basis of the abovementioned approach, the
price undercutting margins during the invest-
igation period were found to range from 2 % to
13 % of the Community industry’s corresponding
weighted average sales unit price.

4. Situation of the Community industry

4.1. Market share

(36)

the Community industry
The market share of
decreased continuously from 98 % in 1991,
to
95 % in 1992, to 93 % in 1993, to 86 % in 1994
and to 85 % in the investigation period.

4.2. Profitability

(37)

The profitability of the Community industry was
re-assessed to take account of
factors such as
financing costs which, in the case of one producer,
had been incorrectly determined at the provisional
stage. It was confirmed that one producer was

incurring heavy financial losses in the investigation
period. The profitability of
the other producer
decreased substantially reaching very low levels in
the investigation period.

In addition, a calculation of the profitability of this
producer for the product types more exposed to
competition from the People’s Republic of China
and used in the undercutting assessment revealed
significant financial losses in sales of such product
types.

4.3. Employment

(38) One importer argued that the employment figure
for the Community industry provisionally deter-
mined seemed overestimated because glyphosate
production does not normally require as many
people. The Commission confirms that, on the
basis of verified information, in the investigation
period the Community industry employed some
814 people in connection with the glyphosate
activity.

(39)

In the absence of other arguments, the other find-
ings concerning the situation of the Community
industry, as stated in recitals 46 to 53 of the Provi-
sional Duty Regulation, are confirmed.

4.4. Conclusion on injury

(40)

Importers argued that in the light of the increase
in capacity, production, sales volume and employ-
ment of the Community industry, it could not be
considered that this industry had suffered material
injury in the period examined.

it is recalled that,

However,
in accordance with
Article 3(5) of the Basic Regulation, any one or
more of the injury factors set out in this provision
cannot necessarily give decisive guidance as to the
impact of the dumped imports on the situation of
the Community industry.

In this context, it is noted that, in spite of the
positive development of the above factors, which
took place in the context of a significant expansion
of the market, during the period examined, the
Community industry’s market
share decreased
significantly, as did its prices and profits. Further-
more, it is recalled that, in the investigation period,
and as underlined by the analysis of imports prices
made in recitals 41 to 44 of the Provisional Duty
the Chinese dumped prices of acid
Regulation,
were found to be below the manufacturing costs of
acid of the Community industry. This shows the
magnitude of the impact of such imports on the
situation of this industry.

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(41)

(42)

The conclusion whereby the Community industry
suffered material injury during the period exam-
ined, as set out in recitals 54 and 55 of the Provi-
sional Duty Regulation, is therefore confirmed.

F. CAUSATION

1. Patent expiry

the

and,

claimed that
industry

situation of
in particular,

the
Importers
Community
the
decrease in prices and profits of this industry, was
mainly a consequence of the expiry of the patent
held by one Community producer up to 1991. The
importers argued, in particular, that the decrease in
glyphosate prices on the Community market was
in line with other cases of patent expiry and that,
as a consequence, the decrease in profitability of
the former patent holder was to be expected.

regards any losses

As
suffered by the other
producer, these were claimed by the importers to
be due to lack of anticipation of the price evolu-
tion that the market would follow after the expiry
of the patent. The importers further claimed that
the prices of glyphosate on the Community market
during the investigation period were comparable to
prices of the product on other world markets, e.g.
Argentina, which showed that following the expiry
of the patent the prices in the Community market
had reached a normal level.

submitted on this

It should be noted, in the first instance, that no
new evidence was
subject
following provisional findings, which would justify
a change in the conclusions regarding causality. In
particular, it is noted that as regards the compar-
ison of prices of glyphosate in the Community and
Argentina, insufficient evidence was provided on
the prices in the latter market or,
indeed, on
whether the conditions of competition in Argen-
in the
tina would be
Community following the expiry of the patent. It
should further be noted that given the different
situations for different markets as regards patents,
no world price could be established for
this
product.

comparable

to those

(43) Concerning the profitability of

this industry,

the Community
industry, it is recalled that in spite of considerable
its prices
reductions in costs of
decreased further
the
than costs.
investigation revealed that this decrease in prices
was considerably accelerated between 1993 and the
investigation period, when the Chinese imports
appeared on the Community market in significant
volumes. This shows that, irrespective of the patent
expiry, the Chinese imports had a negative impact
on the level of Community market prices.

In addition,

(44)

(45)

(46)

is

It
further noted with regard to the other
Community producer which entered the market
after the expiry of the patent, that it had made
detailed forecasts of the decrease in prices that
would follow the expiry of the patent. However, it
is clear that prices dropped to much lower levels
than anticipated.

it

is stressed that

below the manufacturing

in the investigation
Finally,
period, the Chinese imports of acid were found to
be
the
Community industry, i.e. at a level excluding any
general,
thus
exerting a continuous downward pressure on the
prices of the formulated product.

sales or administrative expenses,

costs

of

In view of all the above elements, the conclusion
in the Provisional Duty Regulation is maintained
that the dumped prices largely influenced the level
of prices and profits of the Community industry in
the period examined. Furthermore, it is recalled
that the impact of the dumped Chinese imports
resulted in an increase of market share of these
imports, to the detriment of the market share of
the Community industry.

2. Other imports

(47) As regards the effects of imports other than those
originating in the People’s Republic of China, one
importer claimed that the Commission had under-
estimated the volume of these imports, in partic-
ular of those originating in Hungary.

it

is
the reasons explained in recital 25,
For
recalled that the volume of imports was based on
information provided by importers. In this context,
it is noted that other imports were found to have
taken place from Hungary, Korea, Taiwan, Slo-
venia, India and Malaysia. The total market share
of these imports was, in the investigation period,
3,2 %, with individual market shares of less than
1 % in all cases with the exception of Hungary. As
regards Hungary, its market share was 2 % in the
investigation period. However,
there was no
evidence that the Hungarian prices were dumped.

(48)

In the light of the above, it is unlikely that other
imports had any significant impact on the situation
of the Community industry.

3. Conclusion on causation

(49) Although it is not contested that the patent expiry
had an impact on the Community industry’s situ-
ation, it was concluded that the imports concerned
have,
injury to the
Community industry. The findings set out in reci-
tals 56 to 60 of the Provisional Duty Regulation,
concerning causation, are confirmed.

in isolation, caused material

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G. COMMUNITY INTEREST

3. Conclusion on Community interest

1. Impact on importers/formulators

(50)

Importers in the Community claimed that
the
imposition of anti-dumping duties would force
them to cut down an important part of their acti-
vities. However, since this claim was not substan-
tiated and for the reasons set out in recitals 66 and
67 of the Provisional Duty Regulation, it could not
be considered justified.

2. Competition in the Community

(51) One importer alleged that the imposition of duties
would strengthen the position of the former patent
holder in the Community market, thus preventing
competition from developing in this market.

(52)

it

respect,

In this
is considered that, on the
contrary, measures would ensure the viability of
new producers in the Community, as well as of
the
those
number of competitors on the market.

already producing,

enlarging

thus

(53) As explained in recitals 70 and 71 of the Provi-
sional Duty Regulation, it is noted that, following
the expiry of the patent, two new producers have
entered the Community market. However,
the
investments made by these new producers are
being jeopardised by the continued presence of the
dumped imports, the prices of which have appar-
ently continued to decrease after the investigation
period.

(54)

competition are

It is therefore considered essential that fair condi-
tions of
established on the
Community market in order to ensure the viability
of these producers, while encouraging the emer-
gence of new ones.

Furthermore, given the difficulties encountered by
the new producers due to the Chinese dumped
prices there is a likelihood that, without the impo-
sition of measures, competition in the Community
would be limited to the former patent holder and
the Chinese, to the extent that the former patent
holder would economically be in a position to
compete with the very low dumped prices of the
is considered that new
Chinese exporters.
entrants would ensure a more effective competition
on the Community market as there would be a
greater number of players involved on that market.
In doing so, a greater variety of reliable sources of
supply for Community consumers would be main-
tained than would be the case if Chinese imports
were the only alternative to the former patent
holder products.

It

(55)

In the absence of any other arguments, the conclu-
sions on Community interest as stated in recitals
61 to 74 to the Provisional Duty Regulation are
maintained.

(56)

(57)

(58)

(59)

(60)

H. DEFINITIVE DUTY

The product type used as a reference to determine
the duty rate was the acid form of the product
concerned, because the acid form represented
67 % of the volume of glyphosate imported from
the People’s Republic of China during the invest-
igation period. Moreover, acid is the common base
of all
forms of glyphosate exported from the
People’s Republic of China and produced in the
Community.

of

acid of

the Commission considered that

For the purpose of calculating the injury elimina-
the
tion level,
prices of the dumped imports should be compared
with the production costs
the
Community industry plus a reasonable level of
profit. In this context, the Community industry
its cost of
contested both the determination of
production at provisional stage, insofar as it did not
include certain R & D costs claimed by this
industry, and the profit level used by the Commis-
sion, which the industry considered to be underes-
timated for a product in the agrochemical sector.

Specifically, the Community industry argued that
the Commission, at provisional stage, had improp-
erly classified glyphosate acid as a commodity
product and that this had resulted in an underes-
timation of both the R & D costs and the profit
margin attributed to this product. The Community
industry claimed that glyphosate acid is a highly
technical product that requires continued research
and development
for compliance with environ-
mental requirements.

In this context, the producer concerned provided
sufficient additional evidence showing the link of
certain R & D costs with the product
type
concerned.

of

the

the
production of
cost
Therefore,
Community industry,
for the purpose of estab-
lishing the non-injurious price level, was adjusted,
where appropriate, to take account of these R & D
costs.

(61) No further evidence was provided on R & D costs
relating to glyphosate which should be taken into
account at definitive stage. Furthermore, as far as
the former patent holder is concerned, and given
the effective duration of the patent protection for
this company, it can be considered that any other
significant
to this
product were already recovered.

research costs

in relations

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(62) As regards profit, the Community industry argued
that profit level higher than that used at provi-
sional stage would be adequate for the glyphosate
business. In this respect, it should be noted that
during much of the period examined, the prices on
the Community market were influenced by the
former existence of a patent, and latterly, by the
presence of dumped Chinese prices. Therefore, it
was not possible to obtain reliable information on
the profit
this industry would be able to
obtain in normal conditions of competition.

level

(63)

(64)

In any event, it should be borne in mind that,
irrespective of whether acid should be qualified as
a commodity, glyphosate has benefited during an
extended time period from patent protection.
Therefore, the level of profit of 5 % on turnover
was considered reasonable. It should be noted that
the same level of profit was considered appropriate
for producers in the analogue country (see recital
26 of the Provisional Duty Regulation).

Further, a small downward correction was found to
be required in the amount of post-importation
adjustment added to the Chinese cif export price
of acid, in order that the comparison be made at
the same level of trade.

(65) On the basis of the revised figures, the weighted
average export price of acid, for the investigation
period, on a cif Community frontier level, adjusted
to take account of customs duty and post-
importation costs, was compared with the weighted
average cost of production of
the Community
industry, increased by a profit margin of 5 %.

This comparison resulted in an injury margin of
24,0 %, on the basis of the net, free-at-Community
frontier average price before duty.

(66)

(67)

with the provisions of Article 9(4) of the Basic
Regulation.

I. COLLECTION OF THE PROVISIONAL DUTY

(68) Considering the conclusions on dumping and
injury definitively established, and that the rate of
definitive duty is higher than that provisionally
determined, the amounts secured by way of the
provisional anti-dumping duty should be defin-
itively collected at the rate established in the Provi-
sional Duty Regulation,

HAS ADOPTED THIS REGULATION:

Article 1

1. A definitive anti-dumping duty is hereby imposed
on imports of glyphosate falling within CN code
ex 2931 00 95
and
ex 3808 30 27 (TARIC code 3808 30 27 *10) originating
in the People’s Republic of China.

(TARIC code

2931 00 95 *80)

The rate of duty applicable to the net,

2.
free-at-
Community-frontier price before duty shall be 24,0 %.

3. Unless otherwise specified, the provisions in force
concerning customs duties shall apply.

Article 2

The amount secured by way of provisional anti-dumping
duty pursuant to Regulation (EC) No 1731/97 shall be
definitively collected at
the duty rate provisionally
imposed.

Article 3

Since the injury margin is lower than the dumping
margin found, the definitive anti-dumping duties
should be based on this lower level, in accordance

This Regulation shall enter
into force on the day
following its publication in the Official Journal of the
European Communities.

This Regulation shall be binding in its entirety and directly applicable in all Member
States.

Done at Brussels, 16 February 1998.

For the Council

The President

G. BROWN