Council Regulation (EC) No 1184/2007 of 9 October 2007 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of peroxosulphates (persulphates) originating in the United States of America, the People's Republic of China and Taiwan
Date: 2007-10-09
Institutions: Council of the European Union
Subjects: China, Taiwan, United States, anti-dumping duty, chemical salt, import, originating product

11.10.2007

EN

Official Journal of the European Union

L 265/1

(Acts adopted under the EC Treaty/Euratom Treaty whose publication is obligatory)

I

REGULATIONS

COUNCIL REGULATION (EC) No 1184/2007

of 9 October 2007

imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on
imports of peroxosulphates (persulphates) originating in the United States of America, the People's
Republic of China and Taiwan

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:

A. PROVISIONAL MEASURES

(1)

(2)

The Commission, by Regulation (EC) No 390/2007 (2)
(the provisional Regulation) imposed a provisional anti-
dumping duty on imports of peroxosulphates (persul-
phates),
CN codes
2833 40 00 and ex 2842 90 80, originating in the
United States of America (USA), the People's Republic
of China (PRC) and Taiwan.

classifiable within

currently

As set out in recital 12 of the provisional Regulation, the
investigation of dumping and injury covered the period
from 1 July 2005 to 30 June 2006 (IP). With respect to
the
the
the
Commission analysed data covering the period from 1
January 2003 to the end of the IP (period considered).

injury assessment,

relevant

trends

for

(3)

(4)

(5)

the PRC and Taiwan,

Following the imposition of provisional anti-dumping
duties on imports of persulphates originating in the
USA,
some interested Parties
submitted comments in writing. The Parties who so
requested were also granted the opportunity to be
heard. The Commission continued to seek and verify
information it deemed necessary for its definitive
all
findings.

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 on imports of persulphates originating in the USA,
the PRC and Taiwan and the definitive collection of the
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 Commission intensified the investigation with regard
to Community interest aspects and carried out analysis of
data within the questionnaire reply provided by a user in
the Community after the imposition of the provisional
anti-dumping measures.

(6)

One additional verification visit was carried out at the
premises of the following company:

— Antec International Ltd, Sudbury, UK — user in the

Community.

(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 97, 12.4.2007, p. 6.

(7)

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

(8)

(9)

(10)

(11)

L 265/2

EN

Official Journal of the European Union

11.10.2007

C. PRODUCT CONCERNED AND LIKE PRODUCT

1. Product concerned

It is recalled that as mentioned in recital 14 of the provi-
sional Regulation the product concerned consists of the
types:
following
ammonium
sodium persulphate
persulphate
(Na2S2O8)
(SPS/NPS), potassium persulphate (K2S2O8)
(PPS/KPS) and potassium monopersulphate (2KHSO5 *
KHSO4 * K2SO4) (KMPS).

four main
(NH4)2S2O8

product
(APS),

claimed that

One exporting producer in the USA reiterated its claim
to exclude KMPS from the scope of the investigation on
the grounds that KMPS had different chemical characte-
ristics and was used in applications which differed from
those of the other three product types. This exporting
producer
interchangeability of all
the
product types was limited to some niche applications.
Thus, only a very small quantity of
its exports of
KMPS to the Community would be used in typical appli-
cations of the three remaining product types. To support
its claim, the exporting producer reiterated that KMPS
was
levels which
constantly higher price
showed that it would be sold to types of customers for
applications which differed from those of the remaining
three product types.

sold at

chemicals such as hydrogen peroxide and sodium hypo-
chlorite which were also used as oxidising agents.
Therefore, either KMPS should be excluded from the
present product scope or other oxidising agents should
be included.

(13) As far as the alleged differences in chemical characte-
ristics are concerned,
the abovementioned exporting
producer did not bring forward any new information
or evidence but mainly repeated the arguments it made
prior to the imposition of provisional measures.
It is
underlined that recital 17 of the provisional Regulation
recognises that each type, including KMPS, has a different
it was also found that,
formula. However,
chemical
despite these differences, all
types have a common
structure (SO3-O2) and similar or comparable physical
and chemical properties. Thus, all
for
example, a comparable appearance (white, crystalline
salt), a similar bulk density and comparable active
oxygen content. All
types were defined as salts of
oxoacids of sulphur in the oxidation state number VI
which measures the degree of oxidation of an atom in
a substance. It was therefore concluded that all product
types had similar chemical characteristics. None of the
information put
forward by the exporting producer
concerned was such as to change these findings.

types have,

The same exporting producer also referred to Council
Regulation (EC) No 2961/95 (1) which imposed a defi-
nitive anti-dumping duty on imports of peroxodisul-
the product
phates originating in the PRC. Since
concerned by that investigation did not include KMPS,
it was claimed that the provisional findings in the current
investigation contradicted the findings in that prior inves-
tigation. In particular, the criteria listed in recital 7 of
Regulation (EC) No 2961/95 to determine the product
concerned would not apply to KMPS, which would show
that it is a different product. This exporting producer
referred
investigation
conducted by the authorities of the USA covering persul-
phates but not KMPS (2).

to an anti-dumping

further

Subsequent
the same
to the provisional disclosure,
exporting producer also claimed that KMPS was treated
differently from the other types for transport purposes as
well as in Directive 98/8/EC of the European Parliament
and the Council of 16 February 1998 concerning the
placing of biocidal products on the market (3)
(the
Biocide
treatment would
indicate that they are different products.

directive). This

different

(14)

(15)

the product

In particular,
is

concerned. Hydrogen peroxide

The above characteristics were found to be unique to
persulphates which differentiated them from other
the investigation revealed that
products.
liquid with a
a
hydrogen peroxide
colourless
chemical
from that of persulphates
formula different
(H2O2). It does not contain any sulphur and its active
oxidant content is around 10 times higher than the one
of
is
moreover used in different applications to persulphates.
Likewise, sodium hypochlorite has a chemical structure
which is different from the product concerned (NA+OCl–)
and does not contain any oxygen/oxygen bond or any
sulphur. NA+OCl– is a solid compound, but usually
commercially available as an aqueous solution. Since it
has no active oxygen content at all, it is used in chlorine-
based bleaching.
the
aforementioned products had different properties and
applications and were not comparable to persulphates.
The argument
too
broad was therefore rejected.

It was therefore concluded that

the product definition was

that

Regarding the claim that KMPS had end uses that differed
significantly from those of the remaining three product
types, the arguments brought forward before the impo-
sition of provisional measures were mainly repeated. The
exporting producer claimed in particular
that KMPS
would be largely used in the cleaning and disinfection
of swimming pools, whereas other persulphates could
allegedly not be used because they were skin-irritant. It
was found, however, that not only KMPS but also other
persulphate types were allowed by the relevant European
standard to be used in the treatment of water intended
for human consumption (4).
It was also found that
skin irritant, other
they were
whether or not

a

(12)

Finally, the abovementioned exporting producer argued
that the only common criterion of KMPS and the other
three product types was that they are ‘strong oxidants’,
which is a broad definition applying to many other

(1) OJ L 308, 21.12.1995, p. 61.
(2) United States International Trade Commission, Persulphates from
China, Investigation No 731-TA-479 (Review); Determination and
view of
the Commission (USITC Publication No 3555, October
2002).

(3) OJ L 123, 24.4.1998, p. 1.

(4) EN 12678 and 12926.

11.10.2007

EN

Official Journal of the European Union

L 265/3

persulphate types were indeed used in cleaning and disin-
fection applications. This argument had therefore to be
rejected.

(16)

The abovementioned exporting producer claimed further
that KMPS cannot be used in polymerisation processes
which are the main field of application of the other
persulphate types. However,
the investigation revealed
that KMPS could be used in polymerisation processes
and consequently this argument had also to be rejected.
Finally, as mentioned in recital 17 of the provisional
Regulation, despite partly distinct end uses, a number
of overlapping applications
existed such as metal
treatment (micro-etching and pickling) and repulping of
wet-strength paper. It was therefore concluded that all
product types had largely overlapping applications with
no clear dividing lines.

the Community, the USA and, to a certain extent, the
PRC) and are not necessarily reflected in the cost of
production. Consequently and given the above findings
that no clear dividing lines existed between different
applications of the different product types, this claim
had also to be rejected.

(19) As far as the different treatment of KMPS and the other
three product types with regard to packing for transport
and under the Biocide Directive is concerned, it should
be noted that these were new arguments provided after
the imposition of the provisional measures and therefore
outside the required deadlines. In any event, the investi-
gation has shown that packing standards for all types
were basically the same, albeit under different classifi-
cations.
It was also considered that packing standards
as such were not a decisive criterion in determining
single
whether different product
product. As described above, the main criteria to define
the product concerned in an anti-dumping investigation
are their basic chemical, technical and physical character-
istics and end uses.

types were one

(17) As mentioned in recital 9,

its

sales

export

there was

the low co-operation of

the exporting producer
concerned argued that, while
a certain
overlap in applications, this did not concern a substantial
and should therefore be
part of
considered as insignificant. In this regard,
it should be
noted that the precise consumption of each product type
in a specific application during the IP could not be
determined because of
the
users concerned and the unavailability of appropriate
data for such determination. The exporting producer
concerned did not submit conclusive evidence in this
respect, but only unsupported estimates. Furthermore,
only two users cooperated in the present investigation,
representing only a small part of
total consumption
(7 %). In any event, the exact extent to which a specific
product type was used in a specific application during a
specific time period was considered irrelevant.
Indeed,
type can be used in a
whether a certain product
specific application has to be determined on the basis
of the physical, technical and chemical characteristics.
Users may use a certain product type at a certain time
but may also be able to switch easily from one product
type to the other for one and the same application. This
argument had therefore to be rejected.

as

the

that

claimed by

the different

lies in the fact

shared between the

(20) As far as the Biocide Directive is concerned, it is noted
the
treatment
that
Community industry initiated the registration procedures
required under this Directive for KMPS but not for the
other three product types. Registration procedures had
not been started for these other types due to consid-
erations unrelated to their chemical characteristics and
end uses,
exporting producer
concerned. Thus, while for the product type KMPS regis-
tration costs were
two main
producers of this product type (one in the Community
and the other one in the USA), registration procedures
were considered very costly and time-consuming, and
could be more efficiently handled in terms of cost and
time in the wider context the new European Chemicals
Regulation (REACH) which entered into force on 1 June
2007 (1). The different
the Biocide
Directive can therefore not be considered as an indication
that the product types were different on the basis of their
chemical properties and/or applications. It was therefore
the product
considered irrelevant
concerned and the exporting producer's claim in this
regard was rejected.

in the definition of

treatment under

(18) As regards the different price levels of

the different
product types, it is already set out in recital 17 of the
provisional Regulation that it is considered that price
differences between product types per se do not justify
the conclusion that a certain product type should be
considered as a different product. While it is true that
sales prices of KMPS are higher than the ones of other
there are also price differences
types of persulphates,
between the remaining three product types.
It should
these differences can be seen in all
be noted that
producing countries,
including the Community. The
different price
levels are mainly explained by the
limited number of producers of KMPS worldwide (in

(1) Regulation (EC) No 1907/2006 of the European Parliament and of
the Council of 18 December 2006 concerning the Registration,
Evaluation, Authorisation and Restriction of Chemicals (REACH),
establishing a European Chemicals Agency, amending Directive
1999/45/EC and repealing Council Regulation (EEC) No 793/93
and Commission Regulation (EC) No 1488/94 as well as Council
Directive 76/769/EEC and Commission Directives 91/155/EEC,
93/67/EEC, 93/105/EC and 2000/21/EC (OJ L 396, 30.12.2006,
p. 1), corrected by OJ L 136, 29.5.2007, p. 3.
Directive 2006/121/EC of
the
Council of 18 December 2006 amending Council Directive
67/548/EEC on the approximation of laws, regulations and admin-
istrative provisions relating to the classification, packaging and
labelling of dangerous substances in order to adapt it to Regulation
(EC) No 1907/2006 concerning the Registration, Evaluation,
Authorisation and Restriction of Chemicals (REACH) and estab-
lishing a European Chemicals Agency (OJ L 396, 30.12.2006,
p. 850), corrected by OJ L 136, 29.5.2007, p. 281.

the European Parliament and of

L 265/4

EN

Official Journal of the European Union

11.10.2007

(21) As far as the findings with regard to the product
concerned in the investigations mentioned in recital 10
are concerned, it should be noted that in none of these
investigations was KMPS expressively excluded, i.e. there
are no findings which would have established that KMPS
and the other three product types had different chemical
characteristics and end uses and should therefore not be
considered as one single product. KMPS was not included
in the above complaints (or petitions as applicable) either
because it was not exported during the IP of that inves-
tigation
domestic
or
complaining industry (USA) did not produce KMPS at
that time.

(Community)

because

the

(22)

(23)

It is in particular noted that the criteria listed in recital 7
of Regulation (EC) No 2961/95 (imposing definitive
measures on imports of peroxodisulphates from the
PRC) did not aim at differentiating between KMPS on
the one hand and the three other product types on the
other hand, but rather at defining the main characteristics
shared by the three types which formed the product
investigation. They are therefore
concerned in that
tailored to the three product types concerned and not
exhaustive. The main findings, however, also apply to
KMPS,
i.e. that the essential characteristics (persulphate
anion) and end uses (initiator and oxidising agent) are
they are interchangeable to a certain
the same,
extent and that price differences are considered irrelevant.
in the
As
the
production process of
the
exporting producer claimed that KMPS constituted a
In this
high percentage of its users' production costs.
investigation
respect,
(recitals 112 to 120 below)
although KMPS
constitutes a higher proportion of the cost, the impact
it
on the users' profitability is negligible. In any event,
was
the
this
Community institutions from considering KMPS as the
product concerned given the abovementioned finding
that all product types were interchangeable.

the downstream industry,

established during the

should not prevent

considered that

importance

criterion,

it was

that

that

last

the

for

in particular none of

is finally noted that none of

the other interested
It
Parties,
the Chinese exporting
producers of KMPS, challenged the product definition
in the present proceeding or objected to the inclusion
of KMPS in the product scope of the present investi-
gation.

D. DUMPING

(26)

In the absence of any comments with regard to the
general methodology, recitals 20 to 39 of the provisional
Regulation are hereby confirmed.

1. USA

(27)

exporting
Following the provisional disclosure, one
producer argued that the deduction made pursuant to
Article 2(10)(i) as described in recital 47 of the provi-
sional Regulation led to a double counting of the profit
made by its related trader in Switzerland. However, the
exporting producer failed to substantiate its claim and
upon verification no double counting was found in the
calculation.

(28)

In the absence of any other comments concerning the
determination of dumping with regard to the USA,
recitals 40 to 50 of
the provisional Regulation are
hereby confirmed.

2. PRC

(29)

Two exporting producers which were denied Market
Economy Treatment (MET) disputed the Commission's
conclusions. However,
forward any
new arguments and the conclusions made with regard
to MET for those two exporting producers in the provi-
sional Regulation have, as a result, remained unchanged.

they did not put

(30) One of those two exporting producers further alleged
that, if the decision to reject its MET claim was main-
should nevertheless be granted individual
tained,
it
treatment
that exporting producer was
(IT). However,
not able to demonstrate that its business decisions was
taken in response to market signals, without significant
State interference, as explained in recital 56 of the provi-
sional Regulation. For the same reasons it cannot be
excluded, and the exporting producer did not prove
otherwise, that State interference would permit circum-
vention of measures if
that exporting producer were
given an individual rate of duty. It is therefore main-
IT should be denied to that exporting
tained that
producer,
in accordance with Article 9(5) of the basic
Regulation.

(24) On the basis of the above, the provisional conclusions set
out in recital 17 of the provisional Regulation that all
four types should be considered to constitute one single
product for the purpose of this proceeding are hereby
confirmed.

(31)

2. Like product

(25)

In the absence of any comments concerning the like
product, recitals 18 and 19 of the provisional Regulation
are hereby confirmed.

Recital 53 of the provisional Regulation stated that for
one of
the three exporting producers granted MET,
further examination of late information that could not
be fully investigated at that stage was necessary. The
information which had then been received, as well as
further information received after the publication of the
provisional Regulation, was examined and a verification
the exporting producer was
visit at
carried out in order to check its validity. This resulted,
based on new information which was brought to light
during the latest steps of the investigation, in significant
changes in the factual situation on the basis of which the
evaluation of criteria 1 and 2 had been made.

the premises of

11.10.2007

EN

Official Journal of the European Union

L 265/5

(32) As regards criterion 1, the exporting producer was found
to have previously concealed some essential information
regarding its current managers and owners, and their role
in the company prior to its privatisation. This voluntary
omission casts doubts on all the information submitted
with regard to privatisation. Furthermore, the company
could not explain convincingly on which grounds it was
granted two loans with a reduced interest rate by a bank
controlled by the State, which points to State inter-
ference. These specific loans had not been investigated
initially as they were granted after the end of the IP.
However,
this clearly has an impact on the present
situation of the company, and it was considered appro-
priate, in accordance with the case law, to take it into
account. For the reasons mentioned above, which are
based on information that could not reasonably have
been known to the Commission's services at the time
of the initial investigation on MET, State interference in
the running of the company can no longer be excluded,
and the company did not prove otherwise.

(33) As to criterion 2,

it was found that financial expenses
had been understated in the
exporting producer's
accounts, in breach of general accruals accounting rules
and more specifically International Accounting Standard
(IAS) No 23. It should be noted that an inaccurate report
of the loans held by the company in their MET claim
form had seriously impeded the initial examination of
this point,
the discrepancy found could
reasonably have been known to the
therefore not
the
Commission's services during the prior steps of
proceeding.

and that

In view of the above,
it has been concluded that this
exporting producer's claim for MET should be rejected.
The exporting producer concerned has been informed
and has been granted an opportunity to comment on
these findings. As a result, the dumping margin for all
exporting producers not granted MET had to be recal-
culated,
that
described in recital 96 of the provisional Regulation.

same methodology

following the

as

(34)

(35)

(36) Given the above, the dumping margins expressed as a
percentage of the CIF import price at the Community
border, duty unpaid, are the following:

Company

Definitive dumping margin

ABC Chemicals (Shanghai)
Co., Ltd

de minimis

Degussa-AJ (Shanghai) Initiators
Co., Ltd

All other companies

24,5 %

96,0 %

(37)

In the absence of any other comments concerning the
determination of dumping with regard to the PRC, the
other provisions of recitals 51 to 97 of the provisional
Regulation are hereby confirmed.

3. Taiwan

(38)

the cooperating
Following the provisional disclosure,
exporting producer reiterated two claims for adjustments
for level of trade and commissions, as already described
in recitals 101 and 102 of the provisional Regulation
respectively. However, the explanations provided by the
substantially
exporting producer, which were not
different from the explanations that had been received
earlier in the proceeding, were not found convincing.
The exporting producer failed in particular to address
supporting the decision to
some of
reject its claims as disclosed in the provisional Regulation
and partly contradicted prior statements made during the
verification visit at its premises.

the arguments

(39)

In the absence of any other comments concerning the
determination of dumping with regard to Taiwan, recitals
98 to 105 of
the provisional Regulation are hereby
confirmed.

Finally, one exporting producer which was granted MET
submitted two claims with regard to the calculation of its
normal value and export prices, which were not found
sufficient to justify an adjustment. One further claim by
that exporting producer concerning the allocation of
certain logistics expenses borne by its related importer
than on the
on the total company turnover
turnover of
the product concerned, on the grounds
that they were linked to a general restructuring which
took place in the company during the IP, was considered
sufficiently substantiated and was accepted. In any event,
this exporting producer's dumping margin had to be
recalculated,
following the corrections made by its
related importer in the Community to the transaction-
by-transaction listing provided in support of the resale
prices for persulphates within the Community.

rather

E. INJURY

1. Community production and Community industry

(40) One exporting producer in the USA reiterated that the
Community producer importing the product concerned
from its related company in the PRC should be excluded
from the definition of the Community industry. It was
claimed that the fact that production is outsourced to a
third country concerned by an anti-dumping investi-
gation would be in itself sufficient to conclude that the
producer concerned would be shielded from the effects
of the dumped imports. The exporting producer also
claimed that the producer concerned behaved differently
from an unrelated Community producer, which is in
particular shown by its investment activity in the PRC.

L 265/6

EN

Official Journal of the European Union

11.10.2007

(41)

it

should

and were only made

this producer
industry.

It is considered that the fact that a Community producer
outsourced production is not per se sufficient reason to
the
from the definition of
exclude
Community
be
first
Indeed,
examined whether the Community producer concerned
was shielded from the effects of the dumped imports. In
this regard, as mentioned in recital 106 and 151 of the
provisional Regulation, it was found that the quantities
imported from the related company in the PRC were
to maintain global
small
customers. These imports constituted less than 7 % of
this producer on the Community
the total sales of
market. This indicated that
the producer in question
was committed to the production in the Community
and that imports were rather an act of self-defence. As
far as the investment by the Community producer in the
PRC is concerned, the claimant exporting producer did
not explain how these investments had indeed shielded
the Community producer from the effects of the dumped
imports, as claimed. The above arguments had therefore
to be rejected.

(42)

The same exporting producer alleged that one of the
main criteria to conclude that the Community producer
in question formed part of the Community industry was
that the resale prices on the Community market were at
a higher level than the import prices from the PRC. The
exporting producer claimed that resale prices should have
been compared to the average import price from all
countries concerned, rather than only those from the
PRC.

(43) However the level of

the resale prices was only one
additional element which had been considered (see also
the provisional Regulation). The resale
recital 106 of
price indicated that the Community producer did not
undercut
its Chinese competitors, which would have
harmed the Community industry.

(44)

In the absence of any other comments concerning
industry,
and Community
Community
recital 106 of
the provisional Regulation is hereby
confirmed.

production

2. Community consumption

sales

(45) One exporting producer in the USA claimed that

its
export
in the Community
related user
should be excluded from the determination of the total
consumption in the Community on the basis that these
sales were not made to the ‘merchant market’.

to its

(46)

Consumption is defined as the total of all imports into
the Community from all sources and all sales of the
product concerned from the Community industry on
the Community market. The fact that imports are made
to related companies in the Community is irrelevant and
does not prevent
these sales from being taken into
consideration when calculating the total Community
consumption. The exporting producer's claim in this
respect was therefore rejected.

(47)

In the absence of any other comments concerning the
Community consumption, recitals 107, 108 and 109 of
the provisional Regulation are hereby confirmed.

(48)

3. Cumulative assessment of the effects of the

imports concerned

The two exporters in the USA claimed that
for the
purpose of assessing injury suffered by the Community
industry, imports of persulphates originating in the USA
should be decumulated. Both exporting producers
submitted that import prices from the USA were at a
higher level and showed trends which differed from
import prices from the PRC and Taiwan. This would
the product exported from the USA was
show that
the
sold under different market conditions. One of
exporting producers further argued that its sales made
to its
in the Community should be
considered separately because they would be made
under different market conditions and show different
trends. Thus, this exporting producer alleged that the
import volume from the USA to unrelated customers
did not increase nor did so only insignificantly. Both
exporting producers requested that
import prices per
country concerned be disclosed.

related user

(49) As far as prices are concerned, and as already mentioned
in recital 112 of the provisional Regulation, it was found
that export prices from the PRC, Taiwan and the USA
showed a similar trend (decreasing) during the period
significantly undercutting the
considered and were
Community prices.
the provisional
is noted that
It
conclusions are based on verified actual export data
supplied by the cooperating exporting producers. These
data were considered as the most reliable source of infor-
mation available. The average import price supplied by
the exporting producers had therefore to be rejected.

(50)

been
The
following
determined for
table
below shows that the import prices from all countries
concerned had a similar, i.e. decreasing trend.

average
have
import prices
each country concerned. The

11.10.2007

EN

Official Journal of the European Union

L 265/7

Table 1

Average import prices per country concerned

Unit prices (EUR/tonne)

2003

2004

2005

IP

USA EUR/tonne

1 289

1 250

1 108

1 131

USA index

100

97

86

88

Taiwan EUR/tonne

633

583

565

590

Taiwan index

100

92

89

93

PRC EUR/tonne

719

688

649

684

PRC index

100

96

90

95

Total countries
concerned (EUR/tonne)

Total countries
concerned (index)

902

812

759

784

100

90

84

87

undercutting. All

(51) As far as import volumes are concerned, the findings of
recital 111 of the provisional Regulation are confirmed,
i.e. the export volume from the USA was significant
within the meaning of Article 3(4) of the basic Regu-
lation and showed an increasing trend. Exports from
the USA were also significantly dumped and showed
types were
substantial
exported from the USA by the
two cooperating
exporting producer and half of the exports of KMPS
it was
were also made to unrelated customers. Thus,
concluded that
the product exported from the USA
was sold through the same sales channels and to the
same type of customers
the
product produced and sold by the Community industry
on the Community market and the product imported
from the other countries concerned.

in the Community as

product

(52) Nonetheless,

the

excluded from the

exporting
even if KMPS sales of
producer concerned made to the related user in the
Community were
this
would not change the overall picture. Market shares
from the USA would still be above the de minimis
threshold and would still show an increasing trend.
Likewise,
import prices would still show a decreasing
trend.

analysis,

(53) On the basis of the above, the two exporting producers'
from the USA when
claim to decumulate imports
assessing
the
Community industry was not warranted and was
rejected.

the material

suffered

injury

by

the period considered of this investigation. This importer
did not, however, submit any figure in support of its
the time period he was
claim, or any indication of
referring to. Furthermore,
is the Community insti-
it
long standing practice to consider a period
tutions'
including the IP plus the preceding three or four years
in the trend analysis, which is considered a reasonable
period to evaluate trends and there is no objective reason
to deviate from this practice. It is also noted that, as
the provisional Regulation
shown in recital 114 of
(Table 2),
imports from Taiwan increased by almost
20 % during the period considered which translated
increase of market share (see recital
also in a slight
115 of
the period
forward any
considered. The importer did not put
other reason why Taiwan should be decumulated from
the remaining countries concerned, nor did the investi-
gation reveal any reason. The importer's claim in this
respect has therefore to be rejected.

the provisional Regulation) over

(55)

In the absence of any further comments in this particular
respect, the findings in recitals 110 to 113 of the provi-
sional Regulation are hereby confirmed.

4. Imports into the Community from the countries

concerned, market share and prices

(56) Given the findings in recitals 31 to 34, export sales of
the Chinese exporting producer which were found to be
dumped had to be included in the analyses of import
volume, market share and prices from the PRC and the
figures in Tables 2 to 4 (recitals 114 to 116 of the
provisional Regulation had therefore to be adapted
accordingly, as follows:

Table 2

Imports from the countries concerned

Imports (tonnes)

2003

2004

2005

IP

PRC

Index

Taiwan

Index

USA

Index

Total countries
concerned

4 275

7 294

7 316

8 708

100

171

171

204

2 080

2 760

2 700

2 480

100

133

130

119

3 484

3 499

3 818

3 878

100

100

110

111

9 839

13 552

13 834

15 065

(54) One importer claimed that imports from its supplier in
Taiwan decreased when considering a period longer than

Index

100

138

141

153

L 265/8

EN

Official Journal of the European Union

11.10.2007

(57)

Imports from the countries concerned increased by 53 %
between 2003 and the IP. While these imports amounted
to 9 839 tonnes in 2003 they reached a level of 15 065
tonnes during the IP. The increase of imports was par-
ticularly marked between 2003 and 2004 since they rose
by 38 %.

(62)

Table 3

Market shared of the countries concerned

Market shares

2003

2004

2005

IP

PRC

Taiwan

USA

Total countries
concerned

11,0 % 17,4 % 18,0 % 20,9 %

5,3 %

6,6 %

6,6 %

5,9 %

9,0 %

8,3 %

9,4 %

9,3 %

25,3 % 32,3 % 33,9 % 36,1 %

(58)

The market
share held by the countries concerned
increased between 2003 and the IP from 25,3 % to
36,1 %,
i.e. by 10,8 percentage points. The increase
was particularly marked between 2003 and 2004 when
it went up by 7 percentage points.

Table 4

Prices of the imports concerned

Unit prices (EUR/tonne)

2003

2004

2005

IP

Total countries
concerned

902

812

759

784

Index

100

90

84

87

(59)

From 2003 to the IP, prices of the imports from the
they
countries concerned decreased by 13 %. Thus,
decreased from EUR 902/tonne
in 2003 to EUR
784/tonne in the IP.

(60)

In the absence of any other comments in this particular
regard the findings and conclusions set out in recitals
114 to 119 of the provisional Regulation, are confirmed.

(65)

5. Situation of the Community industry

(61)

The two exporting producers in the USA claimed that the
Community industry realised ‘reasonable’ profit margins
during the IP, and in any case was not loss making, and
it cannot therefore be concluded that it suffered material
injury during the IP. One of the exporting producers in
the USA further claimed that the high profit margins
realised in 2003 would also be an indication that the
Community industry did not suffer any material injury.

the Community industry.

the dumped imports must

In accordance with Article 3(5) of the basic Regulation,
the impact of
include an
evaluation of all relevant factors and indices having a
bearing on the state of
In
this respect, none of the factors in isolation can give
decisive guidance. The analysis of the situation of the
Community industry is therefore not limited to the pro-
fitability of
the Community industry alone, but must
include all factors listed in that Article. Furthermore, as
the provisional Regulation,
outlined in recital 131 of
profitability dropped substantially during the period
considered,
the
situation deteriorated
Community industry's
dramatically.
it was considered that it
the Community industry did
was irrelevant whether
indeed realise losses during the IP. It is also noted that
the profit margin that the Community industry could
reasonably expect to achieve in the absence of dumped
imports was determined in recital 169 of the provisional
Regulation and confirmed in recital 154 with 12 %, i.e.
significantly higher than the profit margin realised during
the IP.

In this context,

by 80 %,

financial

result

and

i.e.

as

a

(63) With reference to the claim that the high profit margins
realised in 2003 would be an indication that
the
Community industry did not suffer any material injury,
it is noted that even if disregarding the profit margins
realised in that year, the trend would still be significantly
negative. Thus, profits fell between 2004 and the IP by
almost 60 %. This would thus not change the overall
conclusions
suffered
the Community
that
material injury during the IP.

industry

(64) One exporting producer in the USA alleged that

of

Community

industry may

the
have
profitability
decreased because of a EUR 830 million write-off of
intangible assets linked to the acquisition of Laporte in
2005. It should be however noted that the downward
trend of the profitability as set out in the provisional
Regulation is constant over the period considered and
not linked to a specific year. In addition, the investigation
revealed that the cost for the acquisition of Laporte was
taken by the holding company, not by Degussa Initiators
Co. Ltd. This factor did therefore not have any impact on
the profitability trends as shown in the provisional Regu-
lation.

Finally, one of
the exporting producers in the USA
claimed that the injury analysis was based on wrong
the Community industry to obtain
expectations of
this
profit margins which are above the average of
it should first
industry. With regard to this argument,
be noted that, as it becomes apparent
from recitals
120 to 139 of the provisional Regulation, the injury
analysis was based on the developments of all
injury
indicators during the period considered and thus on
the actual situation of the Community industry during
that period, which gave an objective picture based on
verified actual data.
the Community
expectations as such did not serve as a basis in the
injury analysis and this argument was therefore rejected.

In other words,

11.10.2007

EN

Official Journal of the European Union

L 265/9

(66) One user alleged that there was no price depression on
the Community market, but did not submit any evidence
to support
this claim. Since the verified information
submitted by the exporting producers concerned and
the Community industry clearly showed a downward
trend in average
selling prices during the period
considered, this claim had to be rejected.

could be drawn from differences in average Eurostat
prices. Finally,
it should be recalled that neither was
any such evidence provided by the exporting producers
concerned.

(67)

In the absence of any other comments concerning the
situation of the Community industry, recitals 120 to 139
of the provisional Regulation are hereby confirmed.

F. CAUSATION

1. Effects of dumped imports

(68)

In the absence of any comments concerning the effects
of dumped imports, the findings in recitals 141 to 143
of the provisional Regulation are hereby confirmed.

2. Effects of other factors

Imports originating in third countries other than the PRC,
USA and Taiwan

(69)

(70)

than the prices

Both exporting producers
in the USA alleged that
imports from other countries, and in particular from
Turkey, may have caused injury to the Community
industry particularly in view of their prices which are
allegedly lower
In
particular, it was claimed that these imports were made
in significant quantities and at dumped prices which
undercut significantly the Community industry prices.
imports from
Both exporting producers claimed that
Turkey had injured the Community industry at least to
the same degree as imports from the USA, if not to a
larger extent.

from the USA.

First, it should be noted that Turkey was not included in
the complaint because the complainants had not found
any evidence of injurious dumping from Turkey. At the
time of the initiation of this proceeding, the Commission
did not have any evidence at its disposal that contra-
dicted the complainants' statement. Secondly,
the fact
to be lower
that Turkish export prices may appear
than the prices from the USA when looking at average
prices emanating from Eurostat trade statistics may be
the result of a different product mix exported by the
two countries. Indeed, on the basis of available infor-
mation, the exports from the USA consist to a large
extent of KMPS whereas, neither at initiation stage nor
during the investigation, was any evidence available that
to the Community show a similar
Turkish exports
conclusion
product mix. Therefore, no meaningful

the

situation of

the Community
(71) When analysing
the effects of the dumped imports from all
industry,
three exporting countries concerned were assessed cumu-
latively for the reasons set out in recitals 48 to 55. On
this basis,
it was considered inappropriate to base the
analysis with regard to causation on each country
considering
concerned separately. However,
even if
import trends from
imports from the USA separately,
the USA and Turkey are different. While
import
volumes of Turkey significantly decreased during the
period considered (i.e. by 42 %),
import volume and
market share from the USA increased. As far as prices
are concerned no evidence of dumping from Turkey was
submitted by the exporting producer or was otherwise
available. Likewise, as far as undercutting is concerned,
on the basis of the evidence available, the product mix
exported from Turkey was different from that from the
USA; in particular in Turkey there was no production of
KMPS. When comparing average prices from the USA
excluding exports of KMPS and average export prices
it was found that Turkish prices were
from Turkey,
higher than the prices from the USA.

(72) On the basis of the above, the conclusions as set out in
recitals 144 to 148 of the provisional Regulation are
hereby confirmed.

(73)

(74)

Imports of the Community industry

interested Parties that the
It was reiterated by several
the product
imports of one Community producer of
related company in PRC were
concerned from its
dumped and undercut
the Community industry sales
prices causing the price depression on the Community
market. Any injury would therefore be a consequence of
these imports and thus self-inflicted.

global

Imports of
the Community industry from its related
company in the PRC only represented a minor part of
the Community consumption (less than 4 %) and less
than 8 % of the sales of the Community producer in
question and were only made to maintain the custom
of
customers who would otherwise have
purchased the product concerned from the Chinese
suppliers at dumped prices. None of the abovementioned
interested Parties submitted any evidence or explained
how these relatively small quantities (in comparison to
the dumped imports made to unrelated customers in the
Community) could have been the main factor for the
price depression in the Community market and this
claim had therefore to be rejected.

L 265/10

EN

Official Journal of the European Union

11.10.2007

Investments of the Community industry in the PRC

(80)

(75) One of the exporting producers in the USA claimed that
the downward trend of the investment activities of the
Community industry shown in Table 8 of the provisional
Regulation was due to an increased investment activity of
one of the Community producers in its related company
in the PRC and thus not due to the dumped imports.

it

increase in the unit cost

the
This claim had to be rejected. The reason for
is
Community industry's
the provisional Regulation.
outlined in recital 125 of
Thus,
the decrease in production
is the result of
volume due to the dumped imports at stable capacities.
As a result, overhead costs were allocated to lower
production volumes which increased the unit costs.
Since there is a direct link to the dumped imports, the
argument of the exporting producer concerned had to be
rejected.

(76)

on

It is noted that the spare capacity of the Community
industry was high, i.e. reached almost 30 % during the
IP. Under these circumstances, and taking into account
that dumped imports increased significantly during the
period considered and took over part of the Community
industry's market shares, it was considered that it would
have been unreasonable to invest
in an increase of
the Community market.
capacity
production
However, as mentioned in recital 129 of the provisional
Regulation, investments were made to maintain existing
production capacities. Under the given circumstances,
this was considered as a reasonable business decision
against the background of the dumped imports. It was
therefore concluded that the decrease in investments in
the Community market was not connected to the
investment activities of
this producer in the Chinese
market and did therefore not indicate that the injury
suffered was self-inflicted. This argument had therefore
to be rejected.

(81)

(82)

Profitability levels of the Community industry in 2003

The same exporting producer in the USA claimed also
that the reasons for the high levels in profitability in
2003 should have been analysed further and taken into
consideration in the causality analysis.

This exporting producer also failed to provide any expla-
nation or evidence as to how the profit levels in 2003
could have broken the causal link between the dumped
imports and the injury suffered by the Community
the profit margins
industry. The question whether
the Community
realised in 2003 would indicate that
injury during the IP is
industry did not suffer material
addressed in recital 63.

Other activities of the Community industry in the PRC

Cost of the merger of one of the Community producers

(77) One unrelated importer claimed that

the exporting producers

the production,
production capacity and utilisation decreased due to the
relationship of one of the Community producers with
one of
in the PRC. This
importer claimed that
the related Chinese producer
would serve the South Asian market with the lower
priced persulphate produced by the related company in
the PRC and as a consequence the Community producer
decreased significantly its exports to this area, which
would be the reason for the decrease of the production
volume in the Community.

(78)

It should be noted that
the trends with regard to
production volume, capacity and capacity utilisation as
shown in recital 120 of the provisional Regulation (Table
5) are related to the production volume for products sold
in the Community. The alleged decrease in exports of
one of
the Community producer had therefore no
impact and the importer's claim had to be rejected.

Efficiency of the Community industry

(79) One of the exporting producers in the USA claimed that
the increase in production cost as a plausible cause of the
injury suffered by the Community industry was not
addressed in the provisional Regulation.

(83)

The other exporting producer in the USA claimed that
the cost increase and consequently the decrease in the
Community industry's profitability during the IP were
due to the acquisition of a company by one of
the
Community producers and the consequent significant
write-off of intangible assets in their accounting.

(84) However, the downward trend of the profitability as set
out in Table 9 of recital 130 of the provisional Regu-
lation is constant and not linked to a specific year during
the period considered.
the investigation
revealed that the cost of the acquisition was not borne
by the Community producer but by its holding company.
This claim had therefore to be rejected.

In addition,

Uncompetitive behaviour of the Community industry

(85) One user claimed that the Chinese producers related to
the Community industry offered the product concerned
on the Community market at levels that were largely
above the market prices, while the same producers
were able to offer the product at much lower prices in
any other given market, and even below the price levels
of their competitors in these third markets. This user
claimed that
the producers concerned should have
known that such price offers would be unacceptable
the
for

and alleged that

any potential

customer

11.10.2007

EN

Official Journal of the European Union

L 265/11

links

to these
Community industry through their
producers intentionally refrained to sell the product to
certain customers in the Community. Therefore,
the
decrease in sales volume and market share on the
Community market was due to this uncompetitive
behaviour rather than the dumped imports.

the conditions of production and
markets. Likewise,
price setting in the PRC, where the related company of
one of the Community producer was located, cannot
necessarily be compared to the one in the Community
market, which, however, may justify difference in price
levels. This claim had therefore to be rejected.

(90)

(91)

(86)

the abovementioned
It was found that only one of
producers was exporting the product concerned to the
Community during the IP. The arguments with regard to
the other producer were therefore considered irrelevant
and rejected.

(87) As far as the producer in the PRC is concerned, it did
indeed export the product concerned during the IP (see
also recital 74). However,
it was found that business
decisions were taken completely independently from
the Community producer concerned and in particular,
price strategy in the Community market was not
submit
agreed. The user
any
the Community
evidence to support
industry
for business
decisions of its related exporting producer in the PRC.
Therefore, on the basis of the information available, this
claim was rejected.

concerned did not
its claim that

should be held responsible

In contrast, one of the exporting producers in the USA
claimed that the Community industry was responsible for
the price depression on the Community market since it
pursued a policy of price undercutting with regard to its
competitors on the Community market. The exporting
producer supported this argument by submitting several
examples where it had to lower its price in order to meet
the level of the Community industry's price offer.

there

examples of

The evidence submitted was considered anecdotal and no
general conclusions could be drawn therefrom. As
recitals 85 and 89 show, other
the
opposite situation have been provided. While it shows
competition on the
that
the information
Community market, on the basis of
available
the
that
Community industry was driving down the prices on
had
the Community market
therefore to be rejected.

is high degree of

concluded

argument

could

and

this

not

be

it

(88)

required and at a very late stage of

It should also be noted that the evidence submitted with
regard to prices by this user was anecdotal and could not
it was submitted outside the
be verified, given that
deadlines
the
In any case, the price offers shown were
proceeding.
offers before negotiation and were therefore not final.
They also did not relate to the IP. Moreover, the actual
verified average sales price of the Community industry
was well below the levels of the offers shown. It is also
noted that as in recitals 117 to 119 of the provisional
Regulation, average undercutting levels were found to be
significant. The
a price
depression on the Community market and under these
circumstances the ‘market price’
is built under unfair
a
conditions
benchmark.
irrelevant because
dumping is defined in Article 1(2) of the basic Regu-
lation, which does not make reference to a ‘reasonable’
or ‘market price’.

and cannot necessarily be used as
In any case,

dumped

imports

caused

this

is

the

concerned,

third markets

(89) As far as the price levels of this exporting producer to
evidence
other
are
submitted in this regard was anecdotal and also could
not be verified. In addition, these prices were unrelated to
the situation in the Community market and therefore
In any case, no
irrelevant
information was available regarding the
evidence or
different market conditions in these markets.
It was
considered that, on the basis of the evidence submitted,
no meaningful conclusions could be drawn as to the
the prices charged in the different
comparability of

in the causality analysis.

Situation on the world market

(92) One importer claimed that

the loss of sales of

the
Community industry is due to the situation in the
world market where international customers centralised
their purchase strategies. This importer did, however, not
show how this change in strategies could have an impact
on the Community industry consumption and on the
link between the dumped imports and the
causal
had
material
therefore to be rejected.

argument

suffered

injury

and

this

Increase in costs of production of the Community industry

(93) One Chinese exporting producer claimed that it should
have been considered whether the cost increase of the
Community industry could have caused the material
injury suffered by the Community industry.

(94)

the

situation of

costs during the period
The development of unit
considered are not listed in Article 3(5) of the basic
Regulation and therefore not systematically mentioned
when assessing
the Community
industry. However, as part of the analysis of material
injury, sales prices and profitability are systematically
addressed, which implies that cost of production is also
considered. In any case, as set out in recital 125 of the
provisional Regulation, unit costs were considered in the
provisional determinations.

L 265/12

EN

Official Journal of the European Union

11.10.2007

(95)

(96)

Thus, recital 125 of the provisional Regulation explains
that unit costs of the Community industry increased by
5 % due to a decrease in production volume by stable
capacities. The production volume decreased due to the
loss of sales volume and market share as a consequence
of the price pressure from the dumped imports. It was
therefore concluded that the impact of the increase of
the Community industry on the
production cost of
Community industry's negative developments was,
if
existent at all, only limited.

Conclusion on causation

In conclusion, it is confirmed that the material injury of
the Community industry, which is as mentioned in recital
137 of
the provisional Regulation characterised by a
downward trend of all injury indicators, was caused by
the dumped imports concerned. Indeed, the effect of the
non-dumped imports from other
in
particular,
the Community industry's
investments as well as other activities in the PRC, the
the increase in
acquisition cost of a third company,
unit costs, the alleged non-efficiency and uncompetitive
behaviour of the Community industry and the situation
on the world market, on the Community industry's
negative developments was, if existent at all, only limited.

third countries,

from Turkey,

dumping measures
Community industry.

to improve the situation of

the

(101) This user also contested the conclusions in recital 158 of
the provisional Regulation that the imposition of anti-
dumping duties would allow the Community industry to,
inter alia, regain market share and thereby generate better
economies of scale. It was claimed that based on the
findings of the Community industry's market shares it
is one of
in and outside the
Community and there would therefore not be any
further scope for substantial economies of scale. The
industry's
user
same
intention to invest
in its production facilities in the
Community and argued that the conclusions in recital
158 of the provisional Regulation in this respect were
speculative.

the largest players

the Community

questioned

(102) The same user claimed that anti-dumping duties would
not result in restoring fair competition as concluded in
recital 158 of the provisional Regulation. Rather, anti-
dumping measures would enforce the already dominant
position of
the Community industry and therefore
decrease competition on the Community market.

(97) Given the above analysis which has properly distin-
the known
guished and separated the effects of all
factors on the situation of
the Community industry
from the injurious effects of the dumped imports, it is
hereby confirmed that these other factors as such do not
reverse the fact
the injury assessed must be
attributed to the dumped imports.

that

(98) Given the above,

it

is concluded that

the dumped
imports of persulphates
from the PRC, USA and
Taiwan have caused material injury within the meaning
of Article 3(6) of the basic Regulation.

(99)

In the absence of any other comments in this respect, the
conclusions in recitals 140 to 153 of the provisional
Regulation are hereby confirmed.

G. COMMUNITY INTEREST

1. Interest of the Community industry

(100) One of the users who did not fill in the questionnaire
reply, but submitted comments further to the provisional
disclosure, claimed that
the Community industry was
recovering from the dumped imports and that prices of
persulphates in the Community had increased after the IP
and prior to the imposition of provisional measures.
there would be no need to impose anti-
Therefore,

considered insufficient.

(103) As to the argument that the Community industry was
it should be noted that the infor-
already recovering,
respect was
in this
mation submitted by the user
anecdotal and related to events after the IP.
It could
not be verified given that it was submitted at a very
late stage of the investigation,
i.e. after the imposition
of provisional measures. The evidence submitted was
therefore
is noted that
movements
in the market and in particular price
increases during an anti-dumping investigation are not
unusual.
Indeed, as mentioned below in recital 126,
price increases on the Community market are an
expected affect of an anti-dumping duty. Furthermore,
the alleged price increase may also have had other
reasons such as an increase in cost.
is not per se
considered as a reason to refrain from the imposition
of definitive measures,
the basic
Regulation are fulfilled. This argument had therefore to
be rejected.

the conditions of

It

It

if

(104) As far as the ability of the Community industry to realise
economies of scale is concerned,
likewise, the evidence
submitted was considered insufficient. It will be recalled
it was established, on the basis of verified data
that
submitted by the Community industry in their reply to
the questionnaire, that the production volume decreased
with a stable production capacity and that, as a conse-
this, by
quence, unit
increasing production volume there is indeed room for
economies of scale, at least in order to reach the unit
cost level before the dumped imports. The market share
of
the
the Community industry inside or outside
Community was considered irrelevant in this context.

In view of

increased.

costs

11.10.2007

EN

Official Journal of the European Union

L 265/13

(105) As

as

far

are

the

allegations

concerned that

the
Community industry would not invest in its production
facilities in the Community, even if its financial situation
improved, the user argued that this conclusion can be
the Community industry's
drawn on the basis of
behaviour further to the imposition of definitive anti-
dumping duties on imports of peroxodisulphates origi-
nating in the PRC in 1995 by Regulation (EC) No
2961/95 (see recital 10). Thus,
the
in its production
Community industry did not invest
facilities even when anti-dumping measures were in
further,
place,
the
claimed
user
Community industry would not have
suffered any
injury during the IP.

this user alleged,

otherwise,

this

(106)

these allegations.

In this regard, it is noted that the user concerned did not
submit any evidence to support
In
particular, he could not provide any information to
indicate a lack of investments after imposition of defi-
nitive anti-dumping duties in 1995 or that there was a
link between this alleged lack of investments and the
injury suffered during the IP of the current investigation.
On the other hand, as outlined in the provisional Regu-
lation in recitals 140 to 153 and as confirmed in recitals
68 to 99, the material injury suffered by the Community
industry was indeed caused by the dumped imports from
the
the
conclusions in recitals 75 and 76,
it was not unrea-
sonable to assume that
the Community industry is
committed to the Community market and that it will
continue its investment activities should the situation in
the Community market allow to do so. None of the
arguments brought
these
conclusions and the claims in this respect had therefore
to be rejected.

concerned. Given in particular

forward could invalidate

countries

(107) Finally, as

is

far as

concerned

concerned,

the competitive situation in the
Community market
anti-dumping
measures should under normal circumstances restore a
fair level playing field between the Community industry's
sales in the Community market and the imports form the
countries
should
compensate for the dumping practised. As far as the
alleged dominant position of the Community industry
is concerned and as mentioned in recitals 124 to 130,
there were no indications of an infringement of Article
82 of the Treaty and it was therefore concluded that
fair. The
competition within the Community was
argument of
the user concerned had therefore to be
rejected.

because measures

(108)

In the absence of any other comments in this particular
regard, the findings set out in recitals 157 to 160 of the
provisional Regulation are hereby confirmed.

2. Interest of unrelated importers

(109) Further

to provisional disclosure, one

importer

claimed that

in contrast

cooperating
to what was

concluded in recital 163 of the provisional Regulation,
anti-dumping duties would have a significant impact on
its overall profitability, which may lead to the closure of
the company.

(110) However,

this importer did not submit any evidence
which could have reversed the provisional conclusions,
which are therefore confirmed.

(111)

In the absence of any other comments in this particular
regard, recitals 161 to 164 of the provisional Regulation
are hereby confirmed.

3. Interest of users

the exporting producers

(112) As mentioned in recital 6, after the imposition of provi-
sional measures the Commission invited the related user
of one of
in the USA to
complete a questionnaire. Despite the fact that this user
had not cooperated in the investigation so far, this was
considered appropriate because of the alleged substantial
impact of the anti-dumping duty on the profitability of
this user. In particular, it was claimed that the impact on
the user's profitability of the anti-dumping duty would be
significant.

(113) The user in question purchased KMPS from its related
supplier in the USA and produced disinfectants used by
farmers to protect their farms against viruses, e.g. for
cases of avian influenza.

revealed that

the information submitted by the
(114) The verification of
above user
the company realised high
profit margins on the Community market. Although it
was claimed that KMPS constituted a substantial part of
the user's cost of production, the maximum impact on
the company's profitability was insignificant,
i.e. 0,2 %.
Given the high profit margin realised by this company, it
was concluded that the minimal increase in cost could be
easily absorbed. Given the lack of significant competition
on the Community market for this product,
it is also
considered that the cost increase can be easily passed
on to the customers of this company.

are

the profitability for

(115) This user claimed further that although realising high
it sells the
profit margins on the Community market,
third country markets. For
product also via other
these
accounting purposes
operations
consolidated by eliminating transfer
prices and overall profit margins are negative. However,
in the current analysis only data in relation to the
product concerned and to the Community market can
be taken into consideration. The information on sales
prices and costs
third country markets and
details of
the consolidation for accounting purposes
were furthermore not available and could therefore not
be verified. This argument had therefore to be rejected.

to all

all

L 265/14

EN

Official Journal of the European Union

11.10.2007

(116) The other cooperating user in the Community claimed to
be one of the largest users of the persulphate type APS in
the Community and claimed to represent about 3,5 % of
the total Community consumption. This user argued that
any increase in its costs, even small, would have a
situation.
significant
financial
impact on its overall
Although the user estimated the impact of
the anti-
dumping duty with 0,2 %, it claimed that since it used
large quantities of the product concerned,
it would be
more appropriate to consider the absolute total amount
of the duties payable in the analysis of the Community
interest.

(117) This user produces latex binders, which it resells to the
coated paper industry. They also produce products for
water treatment. They claimed that they could not pass
on any increase in cost to their customers because they
had to compete with low-priced imports from Asia.
Furthermore, they claimed that the paper industry had
to face important difficulties and is shrinking, due to a
large part, to the raise of the electronic media. Therefore,
the demand of latex binders is also decreasing. The user
claimed that its profit margin was already very low and
close to break even.

(118) The user concerned did not submit any reply to the
questionnaire but provided some information on sales
and profitability. On the basis of this information,
it
was found that the maximum impact on this user's pro-
the business segment using the product
fitability of
concerned would amount
It was
considered that
impact could not be
considered as significant which would trigger the relo-
cation or any job losses in this specific downstream
industry, as claimed.

to only 0,03 %.

this minimal

(119) None of

aspects

interest

the information provided by this user with
regard to the Community
could
therefore be confirmed during the investigation. In any
event,
it was considered that, as a result of the anti-
dumping duties, price levels in the Community would
on a general basis increase. Furthermore, there was no
indication nor did the user concerned submit any
evidence that imports of the downstream product from
third countries would significantly undercut the prices of
the users'
in the Community. This argument had
therefore to be rejected.

(120) Furthermore, as admitted by the user concerned,

the
paper industry faced problems unrelated to the anti-
dumping duties and it is therefore uncertain whether
the anti-dumping duties will have an impact at all,
given the negligible part it would represent in the cost
of
the
shrinking market for paper would be the cause for the
decline of this industry. Therefore, it was considered that
the imposition of the anti-dumping duties would not

the user or whether other

such as

factors,

have a significant adverse effect on the downstream
industry.

(121) Given the above, recitals 165 and 166 of the provisional

Regulation are hereby confirmed.

4. Shortage of supply

(122) The other user in the Community claimed that

the
Community industry would not be able to supply the
demand on the Community market due to a lack of
sufficient capacities. This user furthermore claimed that
the other sources of supply available such as Turkey and
Japan cannot be real alternatives because the production
volume in these countries is too small in comparison to
the one in the PRC and moreover, in the case of Japan,
would be intended almost exclusively for the Japanese
domestic market.

(123) The above user did not support

its claim with any
evidence. Furthermore, on the basis of verified actual
data, the Community production capacity was found to
practically equal the demand on the Community market.
It should also be noted that anti-dumping duties do not
aim to cease
in the
Community market but
to establish a level playing
field. This argument had therefore to be rejected.

third countries

imports of

5. Dominant position of the Community industry

(124) The two exporting producers from the USA and one of
the users raised their concern that the imposition of the
definitive
the
already dominant position of the Community industry
because it would shelter the two Community producers
from effective competition.

anti-dumping duties would reinforce

(125) The user argued that the fact that prices increased after
the imposition of
the provisional Regulation from
suppliers not subject to any anti-dumping duty would
show the distorting effect of
It was
claimed that such price increase was only based on the
imposition of anti-dumping duties and otherwise unjus-
tified.

the measures.

(126)

In this context, it is considered that the expected effect of
an anti-dumping duty is to increase price levels in the
Community market and thus to compensate for the price
pressure suffered by the Community industry from the
dumped imports. It is noted that non-dumped imports
are in competition with the dumped imports and may
also be affected by the same price pressure. It is therefore
not unusual for an exporting producer with a de minimis
dumping margin to increase its prices further to the
imposition of an anti-dumping duty. This behaviour
does not necessarily show any distortion of the market
and the claims in this respect were rejected.

11.10.2007

EN

Official Journal of the European Union

L 265/15

(127) The user alleged further

there were close links
that
between the two Community producers. Thus, both
producers shared the same production sites and one
Community producer supplied the other with energy
it has been
for its production process. Furthermore,
alleged by several of the interested Parties that the two
Community producers had a history of controlling the
prices in the Community market through anti-compe-
titive practices.

an

behaviour

uncompetitive

i.e. an abuse of

(128) However, the investigation did not confirm these alle-
It did not reveal any evidence which would
gations.
the
to
of
point
Community industry,
the alleged
dominant position. As far as the alleged links of the
two Community producers are concerned, the investi-
gation has shown that business decisions were taken
independently from each other and that managements
were completely separated. It was also considered that
the Community industry did not enjoy abnormally high
profits, but in contrast suffered from a significantly dete-
riorating profitability. It is noted that as shown in recitals
85 to 91, several suppliers of persulphate competed in
the Community market and price negotiations with the
customers were ongoing.

sales
entering

industry's
imports

(129) Furthermore, as also mentioned in recital 107, anti-
dumping measures should restore a level playing field
in the
between the Community
Community market
the
and
Community market. Indeed, the purpose of the duties
is merely to raise the import prices to a level which
would allow the Community industry to achieve a
is also noted that despite other
normal profit.
Japan and
possible sources of supply such as Turkey,
India, there is also one exporting producer in the PRC
for which dumping was found to be de minimis and these
imports will
the Community market
therefore enter
without payment of an anti-dumping duty.

It

(130) Considering the above, the interested Parties' claims in

this respect had to be rejected.

6. Relocation of the downstream industry

(131) One exporting producer

in the USA and the two
the
cooperating users alleged that
the imposition of
anti-dumping duties would accelerate the relocation
process of the downstream industry.

(132) As far as the USA exporter is concerned, they alleged
that the product type KMPS constituted a large share
of
the downstream industry's production cost and
therefore any anti-dumping duty would have a significant
impact on these industries' profitability.

the number of employees of the Community industry of
persulphates, i.e. a much higher number of jobs was at
stake.

types,

(134) As mentioned in recitals 112 to 121, the impact of anti-
dumping measures on the downstream industries'
production cost was found to be negligible. This was
true for all product
including KMPS. On this
it could not be concluded that anti-dumping
basis,
duties would be a trigger to outsource the production
of the downstream industry to third countries. It is also
noted that the amount of employment in the down-
stream industry is not directly comparable to the
number of employees of
the Community industry of
persulphates. For instance, the user concerned did not
submit any indication or evidence to show how much
employment
in the downstream industry was directly
linked to the product concerned and thus potentially
affected by the imposition of anti-dumping duties.

(135) Given the above considerations, these claims had to be

rejected.

7. Anti-dumping duties imposed in 1995

(136) One of the users claimed that the material injury suffered
by the Community industry during the current IP showed
that the anti-dumping measures imposed on peroxodisul-
phates in 1995 were ineffective. It is therefore not in the
interest of the Community to impose new anti-dumping
measures on a similar product scope which can also be
expected to be ineffective. In particular, it is not in the
Community interest to impose measures which will not
to the Community industry but will be
be beneficial
detrimental to the downstream industry.

(137)

It should first be noted that the definitive anti-dumping
measures to which reference was made were terminated
in 2002 (1) due to the withdrawal of the request for an
expiry review by the Community industry in accordance
with Article 11(2) of the basic Regulation. It was found
that the continuation of the investigation was not in the
Community interest. Since the Community industry was
not interested in the continuation of the investigation, it
can be reasonably assumed that it was not in an injurious
situation and that measures were indeed effective.

(138) Second,

the material

it was found during the present investigation
injury suffered by the Community
that
industry was caused by the dumped imports after the
termination of the abovementioned proceeding. It was
therefore concluded that the assumptions made by this
user with regard to the effectiveness of the anti-dumping
measures were wrong and had to be rejected.

(133) One of the users alleged that the number of employees in
the downstream industry was substantially higher than

(1) Council Regulation (EC) No 695/2002 of 22 April 2002 terminating
the anti-dumping proceeding concerning imports of peroxodisul-
phates originating in the People's Republic of China (OJ L 109,
25.4.2002, p. 1).

L 265/16

EN

Official Journal of the European Union

11.10.2007

(139) Furthermore, as concluded in recitals 157 to 160 of the
provisional Regulation and as confirmed by the present
investigation, the imposition of definitive anti-dumping
measures was in the interest of the Community industry,
which is expected to benefit from them and to improve
its financial situation. On the other hand, as concluded
above, the impact of anti-dumping measures on users
and importers is expected to be negligible.

(140) The above arguments had therefore to be rejected.

8. Supply chain of downstream product

(141) One of the exporting producers in the USA claimed that
since its related producer in the Community is likely to
cease its production in the Community, the supply of the
disinfectant used in cases of avian influenza could no
longer be sufficiently guaranteed. Since this product
would have to be sourced outside the Community, this
would lengthen the supply chain and deteriorate the
Community's capability to respond in the event of an
outbreak of this disease.

(147) One exporting producer of

a
to consider 5 to 8 % as

the USA claimed that
persulphate would be a commodity chemical and that
long standing
the Community Institutions have
practice
to
appropriate
determine the injury elimination level. This exporting
producer also claimed that in the previous investigation
concerning
the profit margin
considered for this purpose was 5 % which should also
be used in the present
investigation for consistency
reasons.

similar product,

a

(148) The same exporting producer alleged that

the profit
achieved under normal
margin of 12 % was not
conditions of competition and,
It
therefore, excessive.
should consequently not be considered. The exporting
supported this claim by providing overall
producer
the
publicly available profitability figures of one of
Community producers, which amounted to 5,1 %.

(149)

It was claimed that the profit margin necessary to ensure
the viability of
the Community industry should be
considered or the profit margin which corresponded to
a reasonable return on capital employed.

(142)

In this regard, reference is made to the findings in recitals
112 to 120, which show that the financial impact of the
anti-dumping duties is estimated to be very low and that
therefore it
the downstream
industry would relocate their production sites as a conse-
quence of the anti-dumping duty, but rather as a conse-
quence of the consolidated negative business result.

is not very likely that

(150)

(143)

It was also found that the disinfectant produced by this
company was not the only one used for disinfection
purposes and that therefore, even were the company to
cease production in the Community, other products were
largely available.

(144) The claims in this regard had therefore to be rejected.

9. Conclusion on Community interest

(145) Considering the above, the conclusions in recital 167 of
the provisional Regulation are hereby confirmed, i.e. that
there are no compelling reasons of Community interest
to show that the imposition of anti-dumping measures is
not in the Community interest.

H. DEFINITIVE ANTI-DUMPING MEASURES

1. Injury elimination level

(146) Several

interested Parties

contested the provisional
findings that 12 % profit margin would be the profit
margin before tax that could be reasonably be achieved
by an industry of this type in the sector under normal
conditions of competition.

In this

the like product

It is first noted that the criteria mentioned in recital 149
are irrelevant when determining the injury elimination
level. Indeed, the Community institutions have to base
their determination on an evaluation as to the level of
the profit margin which the Community industry can
reasonably expect to achieve in the absence of dumped
in the
imports, on the sales of
Community market.
is generally
considered that the profit margin at the beginning of
the period considered is the profit margin realised in
the absence of dumped imports. It is noted that there
the exporting
is no practice, as claimed by one of
producers in the USA, of the Community institutions
to use the same profitability level for similar industries.
Profit margins in order to determine the non-injurious
price level in the Community industry are established on
actual verified data collected during each investigation
and are therefore case specific.

respect,

it

(151) For the reasons mentioned above,

to use the overall
profit margin of one of the Community producers is
rejected because it does not
relate to the product
concerned or the Community market or to the entire
Community industry.

(152) As far as the prior anti-dumping investigation concerning
a similar product is concerned and to which reference
was made, it is noted that the product type KMPS was
not included in that investigation, which may have had
an impact on the overall profitability of the Community
industry.

11.10.2007

EN

Official Journal of the European Union

L 265/17

(153) Finally, as far as the alleged uncompetitive behaviour of
the Community industry is concerned, it is noted that as
outlined in recitals 124 to 130, these allegations were
not confirmed in the current investigation and the claims
in this regard had to be rejected.

(154)

It is therefore concluded that the profitability of 12 %
was appropriate and was used in the definitive findings.
In the absence of any other comments concerning the
injury elimination level, recitals 168 to 171 of the provi-
sional Regulation are hereby confirmed.

2. Form and level of the duties

(155)

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 sufficient
to eliminate the injury caused by the imports without
exceeding the dumping margin found.

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

follows:

Country

Company

Anti-dumping duty

USA

E.I. DuPont De
Nemours

FMC Corporation

All other companies

PRC

ABC Chemicals
(Shanghai) Co., Ltd

Degussa-AJ (Shanghai)
Initiators Co., Ltd

All other companies

Taiwan

San Yuan Chemical
Co., Ltd

10,6 %

39,0 %

39,0 %

0 %

24,5 %

71,8 %

22,6 %

All other companies

22,6 %

(157) The

the

duty

company

individual

findings of

the present

anti-dumping

(as opposed to the

rates
specified in this Regulation were established on the
basis of
investigation.
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
countries concerned and produced by the companies
and thus by the
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

specific

legal

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.

(158) 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
relevant information,
in particular any modification in
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,

(159)

(160)

(161)

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
the second subparagraph
fulfil
Article 11(4) of
to present a
request for a review pursuant to that Article in order
to have their situation examined individually.

the basic Regulation,

the requirements of

3. Definitive collection of provisional duties and

special monitoring

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-
lation (EC) No 390/2007, should be definitively collected
to the extent of
the definitive duties
imposed. Where the definitive duties are lower than the
provisional duties, amounts provisionally secured in
excess of
the definitive rate of anti-dumping duties
shall be released. Where the definitive duties are higher
than the provisional duties, only the amounts secured at
the provisional duties shall be definitely
the level of
collected.

the amount of

In order to minimise the risks of circumvention due to
the high difference in the duty rates, it is considered that
special measures are needed in this case to ensure the
proper application of
the anti-dumping duties. These
special measures, which only apply to companies for
which an individual duty rate is introduced, include the
presentation to the customs authorities of the Member
States of a valid commercial invoice, which shall conform
to the requirements set out in the Annex. Imports not
accompanied by such an invoice shall be made subject to
the residual anti-dumping duty applicable to all other
exporters.

(1) European Commission, Directorate-General for Trade, Directorate H,

Office J-79 4/23, 1049 Brussels, Belgium.

L 265/18

EN

Official Journal of the European Union

11.10.2007

(162)

individual duty rates

It is recalled that should the exports by the companies
benefiting from lower
increase
significantly in volume after the imposition of the anti-
dumping measures, such increase could be considered as
constituting in itself a change in the pattern of trade due
to the imposition of measures within the meaning of
Article 13(1) of the basic Regulation. In such circum-
stances, and provided the conditions are met, an anti-
circumvention investigation may be initiated. This inves-
tigation may, inter alia, examine the need for the removal
of individual duty rates and the consequent imposition of
a country-wide duty,

HAS ADOPTED THIS REGULATION:

Article 1

A definitive anti-dumping duty is hereby imposed on
1.
imports of peroxosulphates (persulphates), including potassium
peroxymonosulphate
falling within CN codes
2833 40 00 and ex 2842 90 80 (TARIC code 2842 90 80 20)
and originating in the USA, the PRC and Taiwan.

sulphate,

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:

Country

Company

Anti-Dumping Duty

TARIC Additional Code

E.I.
De
DuPont
Wilmington, Delaware

Nemours,

10,6 %

A818

Tonawanda,

39,0 %

A819

Corporation,

FMC
New York

All other companies

ABC Chemicals (Shanghai) Co., Ltd,
Shanghai

39,0 %

0 %

A999

A820

USA

PRC

Degussa-AJ
Co., Ltd, Shanghai

(Shanghai)

Initiators

24,5 %

A821

All other companies

71,8 %

Taiwan

San Yuan Chemical Co., Ltd, Chiayi

22,6 %

All other companies

22,6 %

A999

A823

A999

The application of the individual duty rates specified for
3.
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.
the duty rate applicable to all other companies
presented,
shall apply.

Unless otherwise

4.
concerning customs duties shall apply.

specified,

the provisions

in force

sulphate,

imports of peroxosulphates (persulphates), including potassium
peroxymonosulphate
falling within CN codes
2833 40 00 and ex 2842 90 80 (TARIC code 2842 90 80 20)
and originating in the USA, the PRC and Taiwan shall be defi-
nitively collected. The amounts secured in excess of the amount
of the definitive anti-dumping duties shall be released. Where
the definitive duties are higher than the provisional duties, only
the amounts secured at the level of the provisional duties shall
be definitely collected.

Article 2

Article 3

Amounts secured by way of provisional anti-dumping duties
to Commission Regulation (EC) No 390/2007 on
pursuant

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

11.10.2007

EN

Official Journal of the European Union

L 265/19

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

Done at Luxembourg, 9 October 2007.

For the Council
The President

F. TEIXEIRA DOS SANTOS

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 peroxosulphates sold for export to the
European Community covered by this invoice was manufactured by (company name and registered seat) (TARIC
additional code) in (country concerned). I declare that the information provided in this invoice is complete and
correct’.

Date and signature