Council Regulation (EC) No 130/2006 of  23 January 2006  imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of tartaric acid originating in the People’s Republic of China
Date: 2006-01-23
Institutions: Council of the European Union
Subjects: China, anti-dumping duty, anti-dumping legislation, import, organic acid, originating product

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I

(Acts whose publication is obligatory)

COUNCIL REGULATION (EC) No 130/2006

of 23 January 2006

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

THE COUNCIL OF THE EUROPEAN UNION,

B. SUBSEQUENT PROCEDURE

Having regard to the Treaty
Community,

establishing the European

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)

A. PROVISIONAL MEASURES

The Commission, by Regulation (EC) No 1259/2005 (2)
(the provisional Regulation) imposed a provisional anti-
dumping duty on imports of tartaric acid (TA), currently
classifiable within CN code 2918 12 00, originating in
the People’s Republic of China (PRC).

It is recalled that the investigation of dumping and injury
covered the period from 1 July 2003 to 30 June 2004
(investigation period or IP). With respect to the trends
relevant
the Commission
analysed data covering the period from 1 January 2001
to 30 June 2004 (period considered). The period used for
the findings on undercutting, underselling and injury
elimination is the aforementioned IP.

the injury assessment,

for

(3)

(4)

Following the imposition of a provisional anti-dumping
duty on imports of TA originating in the PRC, some
interested parties submitted comments in writing.

The Commission continued to seek and verify all infor-
mation it deemed necessary for its definitive findings.
Following the imposition of provisional measures, the
Commission carried out further verifications, principally
in order to verify the determination of normal value, at
the premises of the following companies:

Exporting producers in the PRC

— Hangzhou Bioking Biochemical Engineering Co., Ltd,

Hangzhou, PRC.

— Changmao

Biochemical

Engineering

Co.,

Ltd,

Changzhou City, PRC.

— Ninghai Organic Chemical Factory, Ninghai, PRC.

(5)

the essential

All parties were informed of
facts and
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 provisional duties. They were also granted a
period within which they could make representations
subsequent to this disclosure.

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

(EC) No 2117/2005 (OJ L 340, 23.12.2005, p. 17).

(2) OJ L 200, 30.7.2005, p. 73.

(6)

The oral and written comments submitted by the parties
were considered, and, where appropriate,
the findings
have been modified accordingly.

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(7)

(8)

(9)

C. PRODUCT CONCERNED AND LIKE PRODUCT

2. Normal value

The product concerned is tartaric acid, currently classi-
fiable within CN code 2918 12 00. The product
in beverage and food
concerned is used in wine,
additives, as a retardant
in plaster and in numerous
other products. It can be obtained either from the by-
products of wine making, as
the case with all
Community producers or, via chemical synthesis, from
petrochemical compounds, as is the case with all PRC
exporting producers.

is

Two importers argued that a distinction should be made
between TA of food or pharmaceutical grades, such as
the natural TA produced by the Community industry,
and synthetic TA of technical (non-food) grades. They
also argued that the latter should be excluded from the
proceeding since, unlike TA produced by the Community
industry,
the technical grades could not be used for
human consumption.

(13)

Following provisional disclosure, no comments were
received concerning the methodology for determining
normal value. Accordingly, the conclusions reached in
recitals 18 to 34 of the provisional Regulation are defi-
nitively confirmed.

3. Export price

(14)

In the absence of any relevant comments regarding
export prices, the conclusions reached in recital 35 of
the provisional Regulation are definitively confirmed.

4. Comparison

One importer also pointed out that the TA produced by
the Community industry and that imported from the
PRC resulted from completely different production
processes, and only natural TA could be used for wine
production. This
the
particular type of TA it imported was tailored to the
needs of one particular user and could not be used by
others. This importer therefore argued that this type of
TA and that produced by the Community industry were
not like products.

further claimed that

importer

(15)

(16)

(10) While it is recognised that there are different types of TA
which are not equally suited to all applications, the inves-
tigation confirmed that all these types of TA share the
same basic physical and chemical characteristics. As far
as applications are concerned, for wine making, which
represents about 25 % of the market, only natural tartaric
for the remaining 75 %,
acid can be used. However,
including
human
products
some
consumption, both natural and synthetic TA can be
used and are therefore in competition.
It should also
be noted that production processes as such are not
relevant for the definition of like product.

destined

for

any

absence of

the
In the
comparison between the normal value and the export
prices, the conclusions reached in recitals 36 to 37 of
the provisional Regulation are definitively confirmed.

comments

regarding

5. Dumping margin

(a) For the cooperating exporting producers granted MET

the provisional dumping margins

Two exporting producers submitted claims concerning
the detailed calculations made for establishing the level
of
found. These
comments were considered in light of the revised data
obtained during the verification visits as outlined in
recital 4 of this Regulation. Furthermore, some calcu-
lation errors were corrected.

(17) Accordingly,
margins
Community frontier price duty unpaid, are:

the definitive weighted average dumping
cif
percentage

expressed

the

of

as

a

(11)

In the absence of any other comments concerning the
product concerned and like product, recitals 11 to 13 of
the provisional Regulation are hereby confirmed.

D. DUMPING

1. Market economy treatment (MET)

(12)

In the absence of any comments regarding the granting
of MET, the conclusions reached in recitals 14 to 17 of
the provisional Regulation are definitively confirmed.

Company

Definitive dumping
margin

Hangzhou Bioking Biochemical
Engineering Co., Ltd, Hangzhou

Changmao Biochemical Engineering Co.,
Ltd, Changzhou City

Ninghai Organic Chemical Factory,
Ninghai

0,3 %

10,1 %

4,7 %

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(b) For all other exporting producers

5. Situation of the Community industry

(18)

Following provisional disclosure, no comments were
received concerning the methodology for calculating
the dumping margin for all other exporting producers.
Accordingly,
level of
dumping of 34,9 % of the cif Community frontier price
is definitively confirmed.

the provisional

countrywide

(25) One importer/user and one exporter objected to the
analysis in the provisional Regulation based on the
ceased
argument
production, and should therefore not have been taken
into consideration in assessing the situation of
the
Community industry.

EC producers

some

that

had

E. INJURY

(26)

1. Community production

(19)

In the absence of comments concerning Community
production, recitals 43 to 44 of the provisional Regu-
lation are hereby confirmed.

2. Definition of the Community industry

(20) One importer submitted that some of the Community
producers which were originally complainants had ceased
production, and asked the Commission to verify whether
there was still enough support
the investigation
according to Article 5(4) of the basic Regulation.

for

(21)

the investigation confirmed that

the
In this respect,
producers supporting the complaint
represented over
95 % of the estimated Community production during
the IP. Therefore, the requirements of Article 5(4) of
the basic Regulation are fulfilled.

(22)

In the absence of any other comments concerning the
definition of the Community industry, recital 45 of the
provisional Regulation is hereby confirmed.

3. Community consumption

(23)

absence of

In the
concerning the
Community consumption, recital 46 of the provisional
Regulation is hereby confirmed.

any comments

4. Imports into the Community from the country

concerned

(24)

In the absence of any comments concerning the imports
from the country concerned, recitals 47 to 52 of the
provisional Regulation are hereby confirmed.

It should be noted that the Commission’s analysis of the
factors mentioned in Article 3(5) of the basic Regulation
did not include any data from the companies which had
ceased production. Such companies were mentioned in
the provisional Regulation only insofar as necessary for
interpreting some aggregate
for
total production capacity.
example market shares or
This was
text
presenting each indicator concerned, in order to give a
complete and correct assessment of the situation of the
Community industry. Therefore, it is considered that the
analysis of the situation of the Community industry was
made in full accordance with the basic Regulation.

clearly explained in the

each time

indicators

such as

(27)

In the absence of any other comments concerning the
situation of the Community industry, recitals 53 to 82 of
the provisional Regulation are hereby confirmed.

F. CAUSATION

(28) One exporter argued that the Community producers had
a dominant position in the market and that Chinese
imports, with only 11,5 % of the market, could not be
the main cause of injury.

(29) As for the market share of PRC exports, it is estimated at
between 11,5 and 15,8 %, according to whether Eurostat
or Chinese statistical sources are used. Even a conserva-
tively estimated market
share of 11,5 % cannot be
considered insignificant given that, as mentioned in the
provisional Regulation, injury was clearly caused by the
increasing pressure of growing imports at prices substan-
tially undercutting the prices of the Community industry.
As to whether or not the Community industry had a
dominant position is ultimately not relevant if it is estab-
lished that the Community industry suffered injury from
no other substantial causes than the dumped imports. In
it should be noted that, despite its larger
this respect,
the Community industry had not been
market share,
able to avoid major losses during the period considered.
This contradicts the claim that it has benefited from a
dominant position. Moreover,
from third
countries also ensured that there was sufficient compe-
tition in the market.

imports

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(30) Another exporter pointed out that the new production
brought into the market by the two recently established
EC producers was more important than the increase in
Chinese imports and therefore injury would have been
the new EC
the prices of
self-inflicted. However,
producers were in line with those of
the established
ones and their production was less than the production
of the companies which had ceased business. For these
reasons, without the Chinese imports, their entry into the
market could not explain the price collapse, which
occurred in a
increasing Community
consumption.

context of

failed to take this

(31) Another exporter claimed that the regulatory framework
of
the common agricultural policy distorts normal
market conditions for the EC producers and that the
causation analysis
into account.
Although this argument was only made in very general
terms, it should be noted that the common agricultural
policy does not regulate the price of TA itself, but only
the inputs in TA
sets minimum prices for some of
production as well as a selling price for alcohol. As set
out in recital 89 of the provisional Regulation, these
the
regulatory parameters remained stable throughout
for
the dete-
period and can therefore not account
industry’s
situation.
of
rioration
Furthermore,
into question that
Chinese imports are dumped and causing injury to the
Community industry.

the Community
call
they do not

(32)

In the absence of any other comments concerning
causality, recitals 83 to 95 of the provisional Regulation
are hereby confirmed.

lation, that a moderate dumping duty on this percentage
of the costs should not have a major impact upon the
costs and competitive position of those user industries, is
therefore maintained.

(35)

The same user also argued that the measures could lead
to shortages of TA, as was claimed to have happened in
the past. However, it is not considered that anti-dumping
duties of the proposed individual levels on imports of TA
manufactured by companies representing about
two-
thirds of PRC exports would foreclose the EC market
to PRC suppliers.

(36) One user from the emulsifier industry argued that their
competitive position would be jeopardised if measures
were introduced on imports of TA originating in the
PRC. This user claimed that due to technical change,
emulsifiers are increasingly subject to competition from
non-EU producers and that a cost increase following the
imposition of measures would affect their competitive
position in the market. The Commission tried to verify
the possible effect of measures on this category of users
on the basis of quantified data. However, in the absence
of meaningful replies to the Commission’s questionnaire
and of cooperation from this group of users, this was not
possible.

(37)

In the absence of any other comments concerning
Community interest, recitals 98 to 114 of the provisional
Regulation are hereby confirmed.

G. COMMUNITY INTEREST

1. Injury elimination level

H. DEFINITIVE ANTI-DUMPING MEASURES

(33) One user from the gypsum industry claimed that the
proportion represented by TA in the gypsum industry’s
production costs, mentioned in the provisional Regu-
lation (less than 2 %) was too low. This figure was,
however, based on the data submitted by the same
the figure
company. According to the same data,
would be slightly higher, if it is expressed as a percentage
of only those products containing TA. On the other
hand, two other gypsum groups have indicated much
lower percentages than this. This confirmed that
the
data used in the provisional Regulation can be considered
to be a reasonable estimate.

(34) Moreover,

it

is recalled that

the gypsum products in
which TA is used as a retardant are not exposed to
much competition from non-EC suppliers, according to
Eurostat data. The conclusion of the provisional Regu-

(38)

Further to the disclosure of provisional
the
Community industry claimed that the calculated non-
injurious price was too low on two grounds:

findings,

— the price of raw materials was depressed during the
IP, i.e. the industry had managed to pass on to the
upstream sectors some of the pressure on prices. This
is recognised in recital 69 of the provisional Regu-
the interest of suppliers is analysed
lation, whilst
under recitals 101 to 106. As mentioned in recital
89 of the provisional Regulation, the common agri-
cultural policy sets out only a minimum price for the
purchases of raw material. Furthermore, the industry
did not substantiate its claim and did not submit any
evidence indicating that
raw
materials would not be sustainable and should be
higher
it was
than that minimum. Therefore,
concluded that the argument was unfounded,

the price level of

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— it was claimed that the normal profit margin used in
the injury calculation, 8 %, was too low for this type
of
industry. However, given the level of profits
observed for the Community industry in the years
before the IP and prior to the market penetration
of the dumped imports, this percentage represents
an adequate margin to reflect a normal profit level
that could be achieved in the absence of
such
imports.

(39)

In the absence of any other comments concerning the
injury elimination level, recitals 115 to 118 of the provi-
sional Regulation are hereby confirmed.

(40)

(41)

2. Form and level of the duties

In the light of the foregoing and in accordance with
Article 9(4) of the basic Regulation, a definitive anti-
dumping duty should be imposed at the level of the
dumping margins found, since for all
the exporting
producers concerned the injury margins were found to
be higher than the dumping margins.

Regarding the form of the measures, the Community
industry required that a minimum price based on the
injury elimination level should be imposed. However,
since the level of the definitive anti-dumping duty is
based on the dumping margins found, as mentioned in
the above recital, the imposition of the definitive anti-
dumping duty in form of ad valorem duties is maintained.

(42) On the basis of the above, the definitive duties are as

follows:

(as opposed to the

Therefore, they reflect the situation found during that
to these companies. These
investigation with respect
duty rates
country-wide 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’.

(e.g.

(44) Any claim requesting the application of these individual
following a
company anti-dumping duty rates
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
in particular any modification in
relevant information,
the company’s activities linked to production, domestic
and export sales associated with, for example, that name
that change in the production and sales
change or
entities.
then be
amended accordingly by updating the list of companies
benefiting from individual duty rates.

the Regulation will

If appropriate,

(45)

In order to ensure a proper enforcement of the anti-
dumping duty, the residual duty level should not only
apply to the non-cooperating exporters, but also to those
companies which did not have any exports during the IP.
However, the latter companies are invited, when they
fulfil the requirements of Article 11(4) of the basic Regu-
lation, second paragraph,
for a
review pursuant to that Article in order to have their
situation examined individually.

to present a request

Company

Dumping margin

Hangzhou Bioking Biochemical
Engineering Co., Ltd, Hangzhou

de minimis

(46)

Changmao Biochemical Engineering Co.,
Ltd, Changzhou City

Ninghai Organic Chemical Factory,
Ninghai

All other companies

10,1 %

4,7 %

34,9 %

3. Definitive collection of provisional duties

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 anti-dumping
duty, imposed by the provisional Regulation, i.e. Regu-
should be definitively
lation (EC) No 1259/2005,
collected to the extent of the amount of the definitive
duties imposed. As definitive duties are lower than the
provisional duties, amounts provisionally secured in
excess of
the definitive duty rate of anti-dumping
duties shall be released.

(43)

individual

The
rates
specified in this Regulation were established on the
investigation.
basis of

anti-dumping

the present

findings of

company

duty

the

(1) European Commission

Directorate-General for Trade
Direction B, office J-79 5/16
B-1049 Brussels.

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(47)

(48)

(49)

In order to minimise the risks of circumvention due to
the high difference in the amounts of duties,
is
considered that special measures are needed in this case
to ensure the proper application of the anti-dumping
duties. These special measures include:

it

Company

Anti-dumping
duty

TARIC additional
code

Hangzhou Bioking Biochemical
Engineering Co., Ltd, Hangzhou,
People’s Republic of China

0,0 %

A687

the
The presentation to the customs authorities of
invoice, which
Member States of a valid commercial
in the
shall conform to the requirements
Annex to this Regulation. Imports not accompanied by
such an invoice shall be made subject to the residual
anti-dumping duty applicable to all other exporters.

set out

In addition, the Commission will monitor the export
flows as well as the relevant CN code for salts and
esters of TA. Should the exports by one of
the
companies benefiting from lower individual duty rates
increase significantly in volume, or should the imports
declared under the relevant CN code for salts and esters
increase dramatically, the individual measures concerned
might likely be considered as being insufficient to coun-
teract the injurious dumping found. Consequently, and
provided that
the
Commission may initiate an interim review pursuant to
Article 11(3) of the basic Regulation. This review may,
inter alia, examine the need for the removal of individual
duty rates and the consequent imposition of a country-
wide duty,

are met,

elements

requisite

the

Changmao Biochemical
Engineering Co., Ltd,
Changzhou City, People’s
Republic of China

Ninghai Organic Chemical
Factory, Ninghai, People’s
Republic of China

10,1 %

A688

4,7 %

A689

All other companies

34,9 %

A999

3.
The application of the individual duty rates specified for
the companies mentioned in paragraph 2 shall be conditional
upon presentation to the customs authorities of the Member
States of a valid commercial invoice, which shall conform to the
requirements set out
If no such invoice is
in the Annex.
presented,
the duty rate applicable to all other companies
shall apply.

Unless otherwise

4.
concerning customs duties shall apply.

specified,

the provisions

in force

HAS ADOPTED THIS REGULATION:

Article 2

Article 1

A definitive anti-dumping duty is hereby imposed on
1.
imports of tartaric acid, falling within CN code 2918 12 00,
originating in the People’s Republic of China.

Amounts secured by way of provisional anti-dumping duties
pursuant
to Regulation (EC) No 1259/2005 on imports of
tartaric acid, falling within CN code 2918 12 00, originating
in the People’s Republic of China
shall be definitively
in accordance with the rules set out below. The
collected,
amounts secured in excess of
the definitive
anti-dumping duties shall be released.

the amount of

2.
The rate of the definitive anti-dumping duty applicable to
the net, free-at-Community-frontier price, before duty, of the
products manufactured by the companies listed below shall be
as follows:

Article 3

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

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

Done at Brussels, 23 January 2006.

For the Council
The President

J. PRÖLL

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ANNEX

The valid commercial invoice referred to in Article 1(3) of this Regulation must include a declaration signed by an official
of the company, in the following format:

1. the name and function of the official of the company which has issued the commercial invoice;

2. the following declaration ‘I, the undersigned, certify that the (volume) of tartaric acid sold for export to the European
Community covered by this invoice was manufactured by (company name and address) (TARIC additional code) in
(country concerned). I declare that the information provided in this invoice is complete and correct.’

Date and signature