Council Regulation (EC) No 435/2004 of 8 March 2004 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of sodium cyclamate originating in the People's Republic of China and Indonesia
Date: 2004-03-08
Institutions: Council of the European Union
Subjects: China, Indonesia, anti-dumping duty, food additive, import, originating product

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(Acts whose publication is obligatory)

COUNCIL REGULATION (EC) No 435/2004

of 8 March 2004

imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed
on imports of sodium cyclamate originating in the People's Republic of China and Indonesia

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community,

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

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

Whereas:

(1)

(2)

(3)

A. PROCEDURE

On 18 September 2003, the Commission imposed, by
Regulation (EC) No 1627/2003 (2), a provisional anti-
dumping duty on the imports into the Community of
sodium cyclamate originating in the People's Republic of
China (‘PRC’) and Indonesia (the ‘provisional Regu-
lation’).

It is recalled that the investigation period of dumping
and injury covered the period from 1 October 2001 to
30 September 2002 (‘IP’). The examination of trends
relevant for the injury analysis covered the period from
1 January 1999 to the end of the IP (the ‘period consid-
ered’).

B. SUBSEQUENT PROCEDURE

Following the imposition of a provisional anti-dumping
duty on imports of sodium cyclamate originating in the
PRC and Indonesia, some interested parties submitted
comments in writing. The parties who so requested were
also granted an opportunity to be heard orally.

(1) OJ L 56, 6.3.1996, p. 1. Regulation as last amended by Regulation

(EC) No 1972/2002 (OJ L 305, 7.11.2002, p. 1).

(2) OJ L 232, 18.9.2003, p. 12.

(4)

(5)

(6)

As explained under recital 5 of the provisional Regu-
lation, the dumping verification visits to the PRC and
Indonesia which normally take place before provisional
findings are made, were cancelled due to the introduc-
tion of travel restrictions because of SARS. A notice
concerning the consequences of SARS on anti-dumping
and anti-subsidy investigations has been published in the
Official Journal of the European Union (3).

The Commission continued to seek and verify all infor-
mation it deemed necessary for its definitive findings.
After the travel restrictions relating to SARS were lifted,
verification visits were carried out at the premises of the
following companies:

(a) Exporting producers and their related companies in PRC

and Hong Kong,

— Zhong Hua Fang Da (H.K.) Limited, Hong Kong,

— Fang Da Food Additive (Shen Zhen) Limited,

Shenzhen, PRC,

— Shanghai Shumi Co. Ltd., Shanghai, PRC,

— Rainbow Rich Industrial Ltd., Hong Kong,

— Golden Time Enterprise (Shenzhen) Co. Ltd.,

Shenzhen, PRC;

(b) Exporting producer in Indonesia

— PT. Golden Sari

(Chemical

Industry), Bandar

Lampung, Indonesia.

Following the expiry of the deadline for comments on
the provisional findings and well after the verification
visits, another Indonesian company made itself known
and requested the exporting producers' questionnaire in
it
order to reply. The company was informed that
should have made itself known and request the question-
naire at the time of initiation of the investigation. It was
further informed that at such advanced stage of the
investigation no new information could be considered
and that findings would be based for it on facts available.
It was, nevertheless, given an opportunity to comment
and its comments were considered, but they have not
changed the above conclusion.

(3) OJ C 191, 13.8.2003, p. 2.

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(7)

the essential

facts and
All parties were informed of
considerations on the basis of which it was intended to
recommend the imposition of a definitive anti-dumping
duty and the definitive collection of amounts secured by
way of the provisional duty. 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, taken into account for the definitive
findings.

directly comparable with the types sold for export to the
Community when they were of
the same form as
defined in recital 8 of the provisional Regulation.

(12) Domestic sales of a particular product type were consid-
ered sufficiently representative when the total domestic
sales volume of that type sold to independent customers
during the IP represented 5 % or more of the total sales
volume of the comparable product type exported to the
Community.

C. PRODUCT UNDER CONSIDERATION AND LIKE

PRODUCT

(8)

No comments regarding the product concerned and like
product were received and, therefore, the conclusions set
out in recitals 7 to 13 of the provisional Regulation are
hereby confirmed.

D. DUMPING

1. GENERAL METHODOLOGY

(9)

This section explains the general methodology used to
establish whether the imports into the Community of
the product concerned have been dumped. Specific
issues raised by the investigation for each country
concerned are described in recitals 23 to 49.

1.1. Normal value

cooperating

For
and
exporting producers in the PRC for which market economy
treatment (‘MET’) has been granted

exporting producers

in Indonesia

1.1.1. O ve r a ll r e p r e se nt a ti v i ty of dome sti c sa le s

(10)

In accordance with Article 2(2) of the basic Regulation,
it was first examined whether the domestic sales of
sodium cyclamate to independent customers by each
exporting producer were representative, i.e. whether the
total volume of such sales was at least 5 % of the total
volume of its corresponding export sales to the Com-
munity.

(13)

(14)

1.1.3. O r di na r y cou r se of tr a de t e st

It was examined whether the domestic sales of each
exporting producer could be considered as being made
in the ordinary course of trade pursuant to Article 2(4)
of the basic Regulation.

This was done by establishing the proportion of
to independent customers, of each
domestic sales
exported product type, not sold at a loss on the domestic
market during the IP:

(a) For those product types where more than 80 % by
volume of sales on the domestic market were not
below unit costs and where the weighted average
sales price was equal to or higher than the weighted
average production cost, normal value, by product
type, was calculated as the weighted average of all
domestic sales prices during the IP, paid or payable
by independent customers, of the type in question
irrespective of whether these sales were profitable or
not.

(b) For those product types where at least 10 %, but not
more than 80 %, by volume, of sales on the domestic
market were not below unit costs, normal value, by
product type, was calculated as the weighted average
of domestic sales prices which were made at prices
equal to or above unit costs only, of the type in
question.

1.1.2. P r odu c t typ e sp e c i fi c r e p r e se nta ti vi t y

1.1.4. N or ma l va lu e b a se d on a ctu a l dome st i c

p r i ce

(11)

Subsequently,
it was examined whether the domestic
sales of the exported product types could be considered
as representative. For this purpose, the comparable types
sold on the domestic market had to be identified first.
types of
The investigation considered those product
sodium cyclamate sold domestically as being identical or

(15) When the requirements set out in recitals 10 to 14(b)
were met, normal value was based for the corresponding
product type on the actual prices paid or payable, by
independent customers in the domestic market of the
exporting country during the IP, as provided for in
Article 2(1) of the basic Regulation.

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For exporting producers in the PRC without MET

(16)

to Article 2(7)(a) of

Pursuant
the basic Regulation,
normal value for the exporting producers that are not
granted MET has to be established on the basis of the
price or constructed value in a market economy third
country (analogue country) for the like product.

1.2. Export price

(17) According to Article 2(8) of the basic Regulation, the
export price shall be the price actually paid or payable
for the product when sold for export from the exporting
country to the Community.

1.3. Comparison

(18)

In order to ensure a fair comparison between the normal
value and the export price, account was taken, in accord-
ance with Article 2(10) of the basic Regulation, of differ-
ences in factors which were claimed and demonstrated
to affect prices and price comparability. On this basis,
allowances for differences in transport costs, ocean
freight and insurance costs, handling, loading and ancil-
lary costs,
level of trade, packing costs, credit costs,
commissions, discounts and bank charges have been
granted where applicable and justified.

(19)

The comparison between normal value and export price
was made on an ex-factory basis and at the same level of
trade.

(24)

1.4. Dumping margin

For

cooperating

exporting producers

in Indonesia

and

(25)

exporting producers in the PRC granted MET

(20) According to Article 2(11) of the basic Regulation, the
adjusted weighted average normal value by product type,
as determined under recitals 10 to 15, was compared
with the adjusted weighted average export price, as
determined under recital 17.

exporting producers, in order to prevent such non-coop-
erating exporting producers benefiting from their non-
cooperation.

(22) Where the overall level of cooperation found was low, it
was considered appropriate to set a country wide
dumping margin for the non-cooperating companies at
a higher level than the highest dumping margin estab-
there is
lished for a cooperating company.
reason to believe that the high level of non-cooperation
results from the non-cooperating exporting producers in
the country concerned generally having dumped at a
higher level than any cooperating exporting producer in
the same country.

Indeed,

2. SPECIFIC ISSUES RAISED BY THE INVESTIGATION WITH
REGARD TO THE ESTABLISHMENT OF THE DUMPING
MARGIN FOR EACH OF THE COUNTRIES CONCERNED

2.1. Indonesia

(23)

In total, one exporting producer cooperated in the inves-
tigation.

2.1.1. N or ma l v a lu e

It was first established that the domestic sales of sodium
cyclamate of the sole cooperating exporting producer
were representative during the IP (see recital 10 above).
It was further established that the sole product type of
sodium cyclamate sold on the domestic market by the
cooperating exporting producer was identical to the sole
type sold for export to the Community.

sales price was higher

For this product type, since more than 80 % by volume
was not sold at a loss on the domestic market and its
weighted average
than its
weighted average production cost, the normal value was
calculated as the weighted average price of all domestic
sales made during the IP, paid or payable by independent
customers, of the type in question, as set out in Article
2(1) of the basic Regulation.

For non-cooperating companies

2.1.2. E x p or t p r i ce

(21)

For those exporting producers which neither replied to
the questionnaire nor otherwise made
themselves
known, the dumping margin was established on the
basis of the facts available, in accordance with Article
18(1) of the basic Regulation. The above approach was
also considered necessary in respect of non-cooperating

(26)

Exports were made only to unrelated customers in the
Community and, therefore, the export price was estab-
lished in accordance with Article 2(8) of the basic Regu-
lation, on the basis of export prices actually paid or
payable during the IP.

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2.1.3. Comp a r i son

(27)

(28)

(29)

In order to ensure a fair comparison, allowances were
made for differences in transport costs, ocean freight
and insurance costs, handling,
loading and ancillary
costs,
trade, packing costs, credit costs and
commissions, where applicable and justified.

level of

The exporting producer claimed an adjustment to the
normal value for an amount corresponding to import
charges, indirect taxes and income taxes borne by the
like product and by materials physically incorporated
therein, when intended for consumption in Indonesia
and not collected or refunded in respect of the product
the company
exported to the Community. However,
concerned could neither demonstrate that those taxes
were actually not paid or refunded in respect of the
export sales to the Community nor that any such taxes
not paid or refunded were included in the domestic
prices. Therefore, the claim was rejected.

Following the disclosure of the essential facts and consid-
erations on the basis of which it was intended to recom-
mend the imposition of a definitive anti-dumping duty,
the exporting producer concerned claimed an adjust-
ment for certain advertising expenses and an adjustment
for the expenses of certain representative offices involved
in some domestic sales. However, it was established that
the exporting producer had already included these
expenses in the quantification of
trade
adjustment it had claimed earlier. Furthermore, the level
of trade adjustment granted covered any price difference
between sales through different channels due to different
functions,
including those concerning advertising and
the sales representative offices. Consequently, and in
order to avoid duplication when making adjustments as
provided for in Article 2(10) of the basic Regulation, it
was not considered appropriate to grant any further
adjustment for such expenses. Therefore, the claim was
rejected.

the level of

2.1.4. Du mp i n g ma r g i n

(30)

The definitive dumping margin expressed as a percen-
tage of the cif Community frontier price duty unpaid is
for PT. Golden Sari (Chemical Industry) 16,3 %.

(31)

The residual definitive dumping margin for Indonesia
was set at a higher level than the dumping margin estab-
lished for the cooperating company as the overall level

of cooperation in Indonesia was low. In order to estab-
lish the overall level of non-cooperation, the volume of
exports to the Community reported by the cooperating
exporting producer was compared with the equivalent
Eurostat import statistics. This showed a level of non-
the total volume of
cooperation of around 40 % of
imports.

(32)

the

In order to calculate the residual definitive dumping
margin, and since
cooperating company only
exported one product type, the average import price
into the Community for Indonesia, as reported in the
Eurostat statistics, adjusted for ocean freight and insur-
ance costs was compared to the normal value, as estab-
lished for the cooperating exporting producer, adjusted
for freight and packing costs. The residual definitive
dumping margin thus established is 18,1 %.

2.2. The People's Republic of China

(33)

In total, three exporting producers cooperated in the
investigation.

2.2.1. M a r ke t Ec onomy Tr e a tme nt (M E T )

(34) As set out in recitals 21 to 25 of the provisional Regu-
lation, MET was granted to all three exporting producers
in the PRC who applied for it.

2.2.2. N or ma l v a lu e

for

e x p or ti n g p r odu c e r s

g r a nte d M ET

(35) During the verification visit to Rainbow Rich Industrial
Ltd., the mother company of Golden Time Enterprise
(Shenzhen) Co. Ltd., it was found out that the produc-
tion and sales of sodium cyclamate during the IP of
another related producing company in the PRC, San
Lian Industrial, situated in Nanjing (1), had neither been
reported in the questionnaire responses nor subsequently
during the course of the investigation. Neither was MET
requested in respect of this related company. Therefore,
domestic sales information and cost of production of
this company could not be verified during the on-spot
verification.
these non-reported
found that
domestic sales were significant, i.e. around 45 % of the
total domestic sales of the related companies in question.

It was

(1) As of October 2002, the company is called Jintian Enterprises

Nanjing Co. Ltd.

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(36) According to Article 18 of the basic Regulation, provi-
sional or final findings may be made on the basis of
facts available when an interested party refuses access to,
or otherwise does not provide necessary information
within the time limits provided in the basic Regulation.
It is noted that the production costs and the domestic
sales information of San Lian Industrial are necessary
information in order to establish the normal value to be
compared with the export price established for Golden
Time Enterprise (Shenzhen) Co. Ltd. Since neither MET
was granted to San Lian Industrial, nor information
concerning its domestic sales and cost of production was
provided and verified during the investigation,
the
determination of
the normal value for Golden Time
Enterprise (Shenzhen) Co. Ltd. shall be based on facts
available. The party concerned was informed accordingly
of the consequences of this partial non-cooperation and
given an opportunity to comment. The comments
confirmed that San Lian Industrial produced and sold in
the domestic market during the IP sodium cyclamate on
behalf of its mother company Rainbow Rich Industrial
Ltd. and that
the details have never been reported.
Therefore, the conclusion to establish normal value on
the basis of the facts available is hereby confirmed.

(37)

Since the normal value for Golden Time Enterprise
(Shenzhen) Co. Ltd. would normally include all domestic
sales of the related companies and one related company
is considered as not having cooperated and MET was not
granted to it, an analogue country was selected as the
best
facts available for the establishment of normal
value. In this respect, it is noted that following the impo-
sition of provisional measures no comments were
received concerning the selection of
Indonesia as an
analogue country as set out in recital 28 of the provi-
sional Regulation. Therefore, prices in Indonesia were
considered a reasonable surrogate for prices in the PRC.
The average domestic prices of the cooperating Indone-
sian exporting producer, as verified during the on-spot
verification visit, have therefore been used to establish
normal value for the Chinese exporting producer Golden
Time Enterprise (Shenzhen) Co. Ltd.

i.e.

exporting producers,
for non-cooperating Chinese
because the dumping margin established for one Chinese
exporting producer, which has partially cooperated
during the investigation, was found lower than that for
the cooperating Indonesian exporting producer. Firstly,
it is noted that the dumping margin is the result of the
comparison of a normal value with an export price.
Therefore, the level of the dumping margin depends on
two parameters (normal value and export price) and
conclusions,
including the abovementioned discrimina-
tion, cannot be drawn by comparing only one of these
parameters,
in
accordance with the provisions of Article 18(5) of the
basic Regulation,
including those
if determinations,
regarding normal value, are based on the facts available,
any such facts, including the information supplied in the
complaint, shall be checked by reference to official
import statistics or information obtained from other
interested parties during the investigation. Therefore,
since there was on the record verified information
concerning normal value obtained from the sole coop-
erating Indonesian exporting producer,
it was not
considered appropriate to disregard this information and
use instead as facts available information supplied in the
complaint.

the normal value. Furthermore,

(39) As regards the exporting producer Fang Da Food Addi-
tives situated in both Shenzhen and Yang Quan, when
examining whether the domestic sales were made in the
ordinary course of trade pursuant to Article 2(4) of the
basic Regulation, the selling, general and administrative
expenses as reported by Fang Da Food Additives and its
related companies for their domestic sales were adjusted
in order to take into account expenses which were
recorded in the accounting of
the related company,
Zhong Hua Fang Da Ltd. in Hong Kong. The verification
confirmed that these expenses were closely linked to the
operations in the domestic market and not to the export
activities as initially claimed by the company.

(40)

The examination whether the domestic sales were made
in the ordinary course of trade was then carried out by
establishing the proportion of domestic sales to indepen-
dent customers, of each of the two representative types,
not sold at a loss on the domestic market during the IP.

(38)

Following the disclosure of the essential facts and consid-
erations on the basis of which it was intended to recom-
mend the imposition of a definitive anti-dumping duty,
the cooperating Indonesian exporting producer and the
Indonesian Government argued that normal value for
Golden Time Enterprise (Shenzhen) Co. Ltd. and for any
other non-cooperating Chinese exporting producer (see
recital 49) should not be based on data from the sole
cooperating Indonesian exporting producer, but on data
from the complaint. They further argued that it would
be discriminatory to use the data of the cooperating
Indonesian exporting producer to calculate normal value

(41)

For those product
types where more than 80 %, by
volume, of sales were not sold at a loss on the domestic
market, and the weighted average sales price was equal
to or higher than the weighted average production cost,
normal value, by product type, was calculated as the
weighted average of all domestic sales prices, paid or
payable by independent customers, of the type in ques-
tion.

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(42)

For those product types where at least 10 %, but not
more than 80 %, by volume, of sales on the domestic
market were not below unit costs, normal value, by
product type, was calculated as the weighted average of
domestic sales prices which were made at prices equal to
or above unit costs, of the type in question.

(48) As explained in recital 37, normal value for Golden
Time Enterprise (Shenzhen) Co. Ltd. was established
using prices in an analogue country,
Indonesia. The
comparison of normal value and export price as indi-
cated in recital 19 showed a dumping margin of 6,9 %.

2.2.3. E x p or t p r i ce s

for

e x p or ti ng p r odu c e r s

w i th ou t M E T

g r a nte d M ET

2.2.6. Du mp i ng ma r g i n for e x p or t i ng p r odu c e r s

(43) All export sales to the Community by all cooperating
exporting producers in the PRC were made to indepen-
dent customers in the Community via related companies
in Hong Kong. The investigation established that in all
the
cases the functions relating to export sales of
exporting producers in the PRC were carried out by
their related companies in Hong Kong. Therefore, the
export price was established pursuant to Article 2(8) of
the basic Regulation by reference to the prices actually
paid or payable to the related companies in Hong Kong.

(44)

(45)

(46)

2.2.4. Comp a r i son
g r a nte d M ET

for

e x p or ti ng

p r odu c e r s

In order to ensure a fair comparison, allowances were
made for differences in transport,
insurance, handling,
loading and ancillary costs, credit, packing, discounts
and bank charges where applicable and justified.

Since for all cooperating exporting producers in the PRC
sales to the Community were made via related compa-
nies in Hong Kong, the export prices were adjusted as
indicated in recital 44 in order to bring them at ex-
factory level in the PRC.

The cooperating exporting producers and their related
domestic sales companies claimed an adjustment to the
domestic sales prices (normal value) for credit costs. The
claim was rejected because the companies could not
show any written evidence about agreed terms of
payment at the date of sale, i.e. in their domestic sales
invoices or other correspondence.

(49) As set out in recital 34 of the provisional Regulation,
there was significant non-cooperation from the PRC
(around 47 % of total imports as reported in Eurostat).
Following the imposition of provisional measures no
comments were
finding.
Furthermore, given that the PRC is an economy in tran-
sition, prices of an analogue country have been used in
establishing a normal value for the calculation of the
country wide dumping margin. For the reasons set out
in recital 37, Indonesia has been used as an appropriate
analogue country for this purpose.

received concerning

this

(50)

The definitive country wide dumping margin applicable
to all companies without MET in the PRC was set at
17,6 %, corresponding to the difference between the
export price calculated on the basis of facts available; i.e.
average import price in the Community, as reported in
the Eurostat statistics adjusted for ocean freight and
insurance costs, and the normal value as established for
Indonesia in recital 32.

(51)

The definitive dumping margins for the PRC expressed
as a percentage of the cif Community frontier price duty
unpaid are summarised as follows:

Exporting producers in the PRC

Fang Da Food Additive (Shen Zhen) Limited

(%)

0 %

Fang Da Food Additive (Yang Quan) Limited.

0 %

Golden Time Enterprise (Shenzhen) Co. Ltd.

6,9 %

All other companies

17,6 %

2.2.5. Du mp i n g ma r g i n for e x p or ti ng p r odu c e r s

g r a nte d M ET

E. COMMUNITY INDUSTRY

(47)

The comparison of normal value and export price as
indicated in recital 19 showed no dumping for the two
companies of Fang Da Food Additive situated in
Shenzhen and Yang Quan. The investigation should
therefore be terminated for these companies without
imposition of measures.

(52) No comments were received following the imposition of
provisional measures concerning the composition of the
Community industry. Therefore, the findings as set out
in recital 37 of the provisional Regulation are hereby
confirmed.

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F. INJURY

(53)

Following the imposition of provisional measures, no comments were received concerning the
analysis of Community consumption and, therefore, the findings set out in recitals 38 and 39 of the
provisional Regulation are hereby confirmed.

(54) No comments were also received following the imposition of provisional measures concerning the
cumulative assessment of the effects of the imports concerned. Furthermore, the changes in the defi-
nitive dumping margins do not affect the findings set out in recitals 40 to 44 of the provisional
Regulation. However, following the disclosure of the essential facts and considerations on the basis
of which it was intended to recommend the imposition of a definitive anti-dumping duty, the Indo-
nesian Government claimed that there was no justification to cumulate exports from Indonesia with
those form the PRC, because Indonesian exports declined substantially during the IP whilst Chinese
imports increased substantially. In this respect, the investigation established that, although dumped
imports from Indonesia decreased slightly between 2001 and the IP, overall they increased during
the period considered. The fact that Chinese dumped imports increased faster than Indonesian
dumped imports during the period considered does not justify the non-cumulative assessment of the
effects of the dumped imports from the two countries under investigation in accordance with the
provisions of Article 3(4) of the basic Regulation. Therefore, since no other comment was raised
concerning the findings as set out in recitals 40 to 44 of the provisional Regulation, the claim is
rejected and these findings are hereby confirmed.

(55) However, given the no dumping finding for two related Chinese exporting producers (see recital
47), the volume and the market share of the dumped imports have been reassessed. Indeed, non-
dumped imports have been deducted from the imports as established in recitals 45 and 46 of the
provisional Regulation. The evolution of the volume of the dumped imports from the PRC and Indo-
nesia and their market share during the period considered is therefore as follows:

Total dumped imports
(tonnes)

Index

Market share of dumped imports

Index

1999

100

1999

100

2000

65

2000

62

2001

147

2001

125

IP

315

IP

210

(56) Dumped imports increased during the period considered by 215 %. A higher increase was noticed

after the year 2000. Between 2001 and the IP dumped imports increased by 114 %.

(57)

The market share of the dumped imports also increased during the period considered by 110 %.
Again, the increase was higher after the year 2000. A 68 % increase was noticed between 2001 and
the IP. It should be noted that the market share of dumped imports during the IP was very substan-
tial. For reasons of confidentiality the precise figures, however, cannot be given.

(58) Given that the export prices as reported by the cooperating exporting producers were overall in line
with Eurostat import prices and no comment was received following the imposition of provisional
measures, the findings as set out in recital 47 of the provisional Regulation are hereby confirmed.

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(59)

For the determination of price undercutting during the IP the methodology set out in recital 48 of
the provisional Regulation was followed. However, the average import price of the cooperating
Indonesian exporting producer has now been used in the calculation. For the non-cooperating
exporting producers in the PRC and Indonesia the undercutting was calculated using the Eurostat
import prices for these countries. These prices were at cif level and an appropriate adjustment was
made to include any customs duty normally paid on importation.

(60) On that basis, the existence of price undercutting was established for dumped imports from the PRC
and Indonesia. The level of undercutting, expressed as a percentage of the Community industry's
average selling price ranged from 11 % to 15 % for the PRC and it was found to be at around 20 %
for Indonesia.

(61)

(62)

Following the imposition of provisional measures no written comments were received concerning
the situation of the Community industry and the conclusion on injury. However, one Chinese
exporting producer argued in the course of a hearing that the Community industry has not suffered
material injury because during the period considered its production and prices remained relatively
stable and its sales in the Community and the employment increased.

It is noted that this exporting producer has not provided any evidence indicating that the relevant
findings as set out in the provisional Regulation were not accurate. According to these verified find-
ings, the production and the prices of the Community industry decreased during the period consid-
ered by 10 % and 3 % respectively. Moreover, this has to be put into context with the development
of consumption. Indeed, during the same period, despite the consumption in the Community
increasing by 50 %, the sales of the Community industry increased by only 1 %. Thus, the Com-
munity industry could clearly not benefit from the expanding market, and on the contrary lost
market share. As regards employment, it is noted that it has increased by 7 % between 1999 and
2000, but then remained stable until and during the IP. Consequently, there was no increase in the
number of employees which could have affected the situation of the Community industry during
the IP. Furthermore, the employment cost per employee has increased overall in line with inflation
during the period considered. It is, therefore, concluded that these arguments do not show that the
Community industry has not suffered material injury during the IP.

(63) Accordingly, the findings set out in recital 50 to 69 of the provisional Regulation that the Com-
munity industry suffered material injury mainly in the form of financial losses are hereby confirmed.

G. CAUSATION OF INJURY

(64)

it was examined whether the
In accordance with Article 3(6) and (7) of the basic Regulation,
dumped imports of sodium cyclamate originating in the PRC and Indonesia 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 injuring the Community industry, were
also examined to ensure that possible injury caused by these other factors was not attributed to the
dumped imports.

(65) No written comments concerning the causation of injury were received following the imposition of
provisional measures. However, one Chinese exporting producer argued during the course of a
hearing that imports from the PRC are not a cause of injury, because the Community industry
enjoyed a near-monopoly situation before sodium cyclamate was exported from the PRC and Indo-
nesia, the prices from the PRC increased during the period considered, the sales of the Community
industry have not decreased during the same period and the Community industry maintained its
dominant market share.

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(66)

(67)

(68)

These arguments have no factual basis. The investigation has shown that at the beginning of the
period considered, i.e. 1999, imports into the Community held a market share of more than 35 %.
Therefore, the Community industry was not enjoying a near-monopoly situation. Furthermore, as
set out in recital 47 of the provisional Regulation, the prices of the dumped imports decreased by
8 % during the period considered. As regards the evolution of the sales of the Community industry,
recital 62 explained that they increased by only 1 % during a period when consumption increased
by 50 %. As set out in recitals 55 and 56 above, dumped imports increased during the same period
by 215 %. Finally, the market share of dumped imports during the IP was found to be higher than
the market share of the Community industry. Consequently, the arguments cannot be accepted and
the conclusions set out in recitals 71 and 72 of the provisional Regulation are hereby confirmed.

The same exporting producer further argued that any injury was caused by other factors, i.e. the
Community industry was insufficiently prepared to compete on its domestic and foreign markets, its
profitability has been affected by its own business decisions on investments in order to maintain
state of the art facilities and comply with its legal environment (strict environmental regulations),
the Community industry is present only in a high-end segment which only indirectly competes with
the low-end segment satisfied by imports from the PRC and certain Chinese producers enjoy
comparative advantages that allow them to be more competitive than the Community industry.

It is noted that no evidence was provided to support the argument that the Community industry
was not prepared to compete on its domestic and foreign markets. Moreover, the investigation did
not show any such reason. Recital 73 of the provisional Regulation set out the reasons why the
export performance of the Community industry could not have contributed significantly to the
injury suffered. To the contrary, the significant price undercutting by the dumped imports (see
recital 60) clearly shows that the imports under investigation were the main cause of injury to the
Community industry and, therefore, the claim cannot be accepted.

(69) As to the investments, it is noted that the Community industry invested when its profitability was
positive. During the IP, when it realised losses, investments fell sharply by 13 times in comparison
with the previous profitable year (see recital 57 of the provisional Regulation). There is therefore no
indication that investments,
including any for environmental purposes, have contributed to the
injury suffered during the IP and the claim is rejected.

(70) With regard to the lack of direct competition of the Community industry with imports from the
PRC, the investigation established that both forms of sodium cyclamate were exported from the PRC
to the Community and both forms were produced and sold in the Community market by the Com-
munity industry during the IP. Therefore, direct competition existed. Furthermore, given the exis-
tence of certain substitutability between the two forms, indirect competition also existed. Conse-
quently, the claim cannot be accepted.

(71) As far as the allegation that certain Chinese producers enjoyed comparative advantages which allow
them to be more competitive than the Community industry, it is noted that no details of these
alleged advantages were provided. It is also considered that the exporting producer concerned can
benefit from any comparative advantages it may be enjoying as long as it does not dump the
product concerned within the meaning of the basic Regulation.

(72)

The investigation has further established that the non-dumped imports from the PRC were not
undercutting the prices of the Community industry during the IP and, therefore, could not have
contributed significantly to the injury suffered by the Community industry.

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(73)

Consequently, the findings and conclusions set out in recitals 73 to 77 of the provisional Regulation
that the material injury suffered by the Community industry was mainly caused by the dumped
imports are hereby confirmed.

H. COMMUNITY INTEREST

1. GENERAL REMARKS

(74) No comments were received following the imposition of provisional measures concerning the find-
ings on Community interest. However, shortly before the imposition of provisional measures one
raw material supplier and two importers sent letters claiming that it would not be in the Community
interest to impose measures against the cooperating Indonesian exporting producer. The Commis-
sion re-examined whether, despite the final conclusion on the existence of injurious dumping,
compelling reasons existed that could lead to the conclusion that it is not in the Community interest
to adopt measures in this particular case. For this purpose, and in accordance with Article 21(1) of
the basic Regulation, the impact of possible measures on all parties involved in this proceeding and
taking measures were considered on the basis of all evidence
also the consequences of not
submitted.

2. INTERESTS OF COMMUNITY SUPPLIERS

(75)

(76)

The supplier which made itself known shortly before the imposition of provisional measures, i.e. a
supplier other than those mentioned in recitals 83 and 84 of the provisional Regulation, alleged that
it is mainly selling cyclohexylamine (the basic raw material to produce sodium cyclamate) to the Far
East and in particular to Indonesia. It further claimed that since the sole cooperating Indonesian
exporting producer is its main client, there is a risk of losing significant sales volume if an anti-
dumping duty is imposed. This would also have some knock-on effects on other parties in the
downstream supply chain.

It is noted that beyond a short letter which was submitted well outside the time limits set for that
purpose in the notice of initiation, the supplier in question has not provided any actual evidence
which could substantiate its claims as provided for in Article 21(7) of the basic Regulation. No
further comments were submitted after the imposition of provisional measures and the disclosure of
the essential facts and considerations on the basis of which it was intended to recommend the impo-
sition of a definitive anti-dumping duty. Furthermore,
it was found that this supplier was also
providing cyclohexylamine to the Community industry. It is therefore concluded that the imposition
of definitive measures could not have a significantly negative effect on its business.

(77) No other comments concerning the interest of suppliers were received and, therefore, the conclu-

sions set out in recital 83 and 84 of the provisional Regulation are hereby confirmed.

3. INTEREST OF IMPORTERS

(78)

The two importers which made themselves known shortly before the imposition of provisional
measures, alleged that the imposition of an anti-dumping duty on Indonesia is not justified as their
supplier, the sole cooperating Indonesian exporting producer, has shown a strong commitment to
‘hold the prices on a level economically justified’. Furthermore, they claimed that the ‘pricing of the
Indonesian producer have always been higher than the Chinese, resulting in reasonable market
prices for the end-users’.

(79) However, these importers have not made themselves known and have not provided necessary infor-
mation within the time limits set for that purpose in the notice of initiation. Their claims were not
supported by any actual evidence that could substantiate them. Furthermore, no relevant informa-
tion which could support such allegations existed on the record. On the contrary, the investigation
established that the prices of the Indonesian exporting producer in question were lower than the
Chinese prices (see recital 60). Thus, as the submissions were not supported by actual evidence, they
shall not be taken into account in accordance with Article 21(7) of the basic Regulation.

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(80) No further substantiated comments concerning the interest of importers were received and, conse-
quently, the conclusions set out in recitals 85 to 87 of the provisional Regulation are hereby
confirmed.

4. INTEREST OF USERS

(81) No comments concerning the interest of users were received following the imposition of provisional
measures and, therefore, the conclusions set out in recitals 88 to 92 of the provisional Regulation
are hereby confirmed.

5. INTEREST OF THE COMMUNITY INDUSTRY

(82) No comments concerning the interest of the Community industry were received following the impo-
sition of provisional measures and, therefore, the conclusions set out in recitals 93 to 95 of the
provisional Regulation are hereby confirmed.

6. COMPETITION AND TRADE DISTORTING EFFECTS

(83) No written comments concerning the competition and trade distorting effects were received
following the imposition of provisional measures. However, although in accordance with Article 21
of the basic Regulation exporting producers are not considered interested parties in the framework
of the Community interest analysis, one Chinese exporting producer argued in the course of a
hearing that the Community interest does not warrant measures because the imposition of provi-
sional measures restricted the number of players/exporters in the Community market without redu-
cing supply from the countries concerned, the Community industry cannot satisfy the market
demand and the imposition of definitive measures will reinforce the dominant position of the Com-
munity industry.

(84)

It is noted that the aim of anti-dumping measures is not to eliminate exporters from the Community
market, but to restore fair trading conditions. The fact that the Community industry's production
cannot meet, at present, Community demand is not a reason to allow unfair trade practises to
continue. It is further noted that the Community industry does not hold a dominant position since
its market share was less than 50 % during the IP. Moreover, while it is true that the only countries
which produce sodium cyclamate outside the Community are Indonesia and the PRC, there are also
important PRC producers which were not found to be dumping and which can therefore supply the
Community market as before. Therefore, the arguments cannot be accepted and the conclusions set
out in recital 96 to 99 of the provisional Regulation are hereby confirmed.

7. CONCLUSION ON COMMUNITY INTEREST

(85) On the basis of the above, it is concluded that the imposition of definitive anti-dumping measures

would not be against the Community interest.

I. DEFINITIVE ANTI-DUMPING MEASURES

1. INJURY ELIMINATION LEVEL

(86)

Based on the methodology explained in recitals 101 to 104 of the provisional Regulation, an injury
elimination level was calculated for the purposes of establishing the level of measures to be defini-
tively imposed. Since no comments on the methodology used for establishing the injury elimination
level were received, this methodology is hereby confirmed. However, the average import prices used
have been revised as for the final undercutting calculations in recital 59.

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2. DEFINITIVE MEASURES

(87) As the injury elimination levels are higher than the dumping margins established for all parties

concerned, the definitive measures should be based on the latter.

(88)

(89)

It is noted that information on the record indicates that one of the cooperating exporting producers
may intend to lower its prices in order to absorb the duty. The attention is drawn to Article 12 of
the basic Regulation, which stipulates that the investigation can be reopened and the dumping
margins recalculated in case there is sufficient evidence that the measures have not led to a sufficient
movement in the prices in the Community. It is the intention of the investigating authority to
swiftly proceed with a reinvestigation in cases where sufficient information on duty absorption is
submitted to it. Additionally, in order to ensure the efficiency of the measures and to discourage
price manipulation, it is appropriate to impose the duty in the form of a specific amount per kilo.

It is further noted that according to Eurostat import statistics there are imports of the product
concerned from countries (e.g. Hong Kong), where there is no production of sodium cyclamate.
According to information available on the record, production of sodium cyclamate exists only in
Spain, Indonesia and the PRC. Should sufficient information on circumvention of the measures be
submitted, the investigating authority is prepared to swiftly initiate an investigation in accordance
with Article 13 of the basic Regulation.

(90) On the basis of the above, the rate of the duty shall be equal to the fixed amount per kilo of sodium

cyclamate as shown in the table below:

The PRC:

Dumping margin

Rate of definitive duty
(per kilo)

Fang Da Food Additive (Shen Zhen) Limited, Gong Le
Industrial Estate, Xixian County, Bao An, Shenzhen,
518102, PRC

Fang Da Food Additive (Yang Quan) Limited, Da Lian
Dong Lu, Economic and Technology Zone, Yangquan City,
Shanxi 045000, PRC

0 %

0 %

EUR 0

EUR 0

Golden Time Enterprise (Shenzhen) Co. Ltd., Shanglilang,
Cha Shan Industrial Area, Buji Town, Shenzhen City,
Guangdong Province, PRC

6,9 %

EUR 0,11

All other companies

17,6 %

EUR 0,26

Indonesia:

PT. Golden Sari
Industry), Mitra Bahari Blok
D1-D2, Jalan Pakin No. 1, Sunda Kelapa, Jakarta 14440,
Indonesia.

(Chemical

16,3 %

EUR 0,24

All other companies

18,1 %

EUR 0,27

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(91)

The individual company anti-dumping duty rates specified in this Regulation were established on
the basis of the findings of the present investigation. Therefore, they reflect the situation found
during that investigation with respect to these companies. These duty rates (as opposed to the coun-
trywide duty applicable to ‘all other companies’) are thus exclusively applicable to imports of
products originating in the country concerned and produced by the companies and thus by the
specific legal entities mentioned. Imported products produced by any other company not specifically
mentioned in the operative part of this Regulation with its name and address, including entities
related to those specifically mentioned, cannot benefit from these rates and shall be subject to the
duty rate applicable to ‘all other companies’.

(92) Any claim requesting the application of these individual company anti-dumping duty rates (e.g.
following a change in the name of the entity or following the setting up of new production or sales
entities) should be addressed to the Commission (1) forthwith with all relevant information, in par-
ticular any modification in the company's activities linked to production, domestic and export sales
associated with e.g. that name change or that change in the production and sales entities. If appro-
priate, the Regulation will accordingly be amended by updating the list of companies benefiting
from individual duty rates.

3. COLLECTION OF THE PROVISIONAL DUTY

(93)

In view of the magnitude of the dumping margins found and in the light of the level of the injury
caused to the Community industry, it is considered necessary that the amounts secured by way of
the provisional duty imposed by Regulation (EC) No 1627/2003 be definitively collected to the
extent of the amount of the duty definitively imposed by the present Regulation if this amount is
equal or lower than the amount of the provisional duty. Otherwise, only the amount of the provi-
sional duty should be definitively collected. Amounts secured in excess of the amount of the defini-
tive anti-dumping duty shall be released,

HAS ADOPTED THIS REGULATION:

Article 1

1.
A definitive anti-dumping duty is hereby imposed on imports of sodium cyclamate, currently classifi-
able within CN code ex 2929 90 00 (TARIC code 2929 90 00 10), originating in the People's Republic of
China and Indonesia.

The rate of the definitive anti-dumping duty applicable to the net free-at-Community-frontier price,

2.
before duty, shall be as follows:

Rate of duty (EUR per kilo)

TARIC additional code

The People's Republic of China:

Fang Da Food Additive (Shen Zhen) Limited, Gong Le
Industrial Estate, Xixian County, Bao An, Shenzhen,
518102, PRC

Fang Da Food Additive (Yang Quan) Limited, Da Lian
Dong Lu, Economic and Technology Zone, Yangquan City,
Shanxi 045000, PRC

Golden Time Enterprise (Shenzhen) Co. Ltd., Shanglilang,
Cha Shan Industrial Area, Buji Town, Shenzhen City,
Guangdong Province, PRC

All other companies

0

0

0,11

0,26

A471

A472

A473

A999

(1) European Commission — Directorate General for Trade — Directorate B - J-79 5/17 — Rue de la Loi/Wetstraat 200

— B-1049 Brussels.

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Rate of duty (EUR per kilo)

TARIC additional code

Indonesia:

PT. Golden Sari
Industry), Mitra Bahari Blok
D1-D2, Jalan Pakin No. 1, Sunda Kelapa, Jakarta 14440,
Indonesia.

(Chemical

All other companies

0,24

0,27

A502

A999

In cases where goods have been damaged before entry into free circulation and, therefore, the price
3.
actually paid or payable is apportioned for the determination of the customs value pursuant to Article 145
of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementa-
tion of Council Regulation (EEC) No 2913/92 establishing the Common Customs Code (1), the amount of
anti-dumping duty, calculated on the basis of paragraph 2 above, shall be reduced by a percentage which
corresponds to the apportioning of the price actually paid or payable.

4.

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

Article 2

The amounts secured by way of provisional anti-dumping duty, pursuant to Regulation (EC) No 1627/
2003, on imports of sodium cyclamate, currently classifiable within CN code ex 2929 90 00 (TARIC code
2929 90 00 10), originating in the People's Republic of China and Indonesia shall be definitively collected
in accordance with the rules set out below.

The amounts secured in excess of the amount of the definitive anti-dumping duty shall be released. Where
the amounts of the definitive anti-dumping duty are higher than the provisional anti-dumping duty, only
the amounts secured at the level of the provisional duty shall be definitively collected.

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

Article 3

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

Done at Brussels, 8 March 2004.

For the Council

The President

D. AHERN

(1) OJ L 253, 11.10.1993, p. 1. Regulation as last amended by Commission Regulation (EC) No 2286/2003 (OJ L 343,

31.12.2003, p. 1).