Council Regulation (EC) No 63/2008 of 21 January 2008 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of dihydromyrcenol originating in India
Date: 2008-01-21
Institutions: Council of the European Union
Subjects: India, anti-dumping duty, anti-dumping legislation, chemical alcohol, chemical product, import, originating product

26.1.2008

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Official Journal of the European Union

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

I

REGULATIONS

COUNCIL REGULATION (EC) No 63/2008

of 21 January 2008

imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on
imports of dihydromyrcenol originating in India

THE COUNCIL OF THE EUROPEAN UNION,

(3)

the Community producers listed in
The addresses of
recital 7 of the provisional Regulation are rectified as
follows:

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. PROCEDURE

1. Provisional measures

On 27 July 2007, the Commission imposed by Regu-
lation (EC) No 896/2007 (2) (the provisional Regulation)
a provisional anti-dumping duty on imports into the
Community of dihydromyrcenol originating in India
(the country concerned).

It is recalled that the investigation of dumping and injury
covered the period from 1 October 2005 to 30
September 2006 (the investigation period or IP). The
examination of trends relevant for the injury analysis
covered the period from 1 January 2003 to the end of
the IP (the period considered).

(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 196, 28.7.2007, p. 3.

(4)

(5)

(6)

— Destilaciones

Bordas

Chinchurreta

S.A., Dos

Hermanas (Sevilla), Spain,

— Sensient Fragrances S.A., Granada, Spain,

— Takasago International Chemicals

(Europe) S.A.,

Murcia, Spain.

2. Subsequent procedure

Following the imposition of a provisional anti-dumping
duty on imports of dihydromyrcenol originating in India,
all parties received disclosure of the essential facts and
considerations on which the provisional Regulation was
based (the provisional disclosure). All parties were
granted a period within which they could make written
and oral representations in relation to this disclosure.

Some interested parties submitted comments in writing.
Those parties who so requested were also granted an
opportunity
to be heard orally. The Commission
continued to seek and verify all information it deemed
necessary for its definitive findings.

All interested parties were informed of the essential 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
the provisional duty (the ‘final
secured by way of
disclosure’). The interested parties were also granted a
period within which they could make representations
subsequent
to this disclosure. The oral and written
comments submitted by the parties were considered
and, where
been
modified accordingly.

findings have

appropriate,

the

(8)

(9)

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Official Journal of the European Union

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B. PRODUCT CONCERNED AND LIKE PRODUCT

3. Comparison

(7)

In the absence of any comments concerning the product
concerned and the like product, recitals 9 to 12 of the
provisional Regulation are hereby confirmed.

determining

(12) One exporting producer claimed that the Commission,
when
the
for
adjustments to the export price, made certain non-
in relation to certain elements
justified deductions
concerning transport, handling and credit costs. The
Commission accepted the
claim and revised the
relevant adjustments accordingly.

comparison

purposes

C. DUMPING

1. Normal value

Following the imposition of provisional measures, the
exporting producer referred to in recital 17 of the provi-
sional Regulation alleged that the analysis carried out by
the Commission ignored certain important elements
affecting the cost of production and, thus, the normal
its normal value
value determination.
should be based on its own cost of production instead
of being determined on the basis of the domestic prices
in the ordinary course of trade of the other cooperating
exporting producer.

It claimed that

(13)

In the absence of any other comments in this respect,
recital 19 of
the provisional Regulation is hereby
confirmed.

4. Dumping margins

(i)

the following reasons:

Firstly, the aforesaid allegations concerning the cost of
production were not found justified. Secondly, pursuant
to Article 2 of the basic Regulation, the methodology
applied by the Commission in determining the normal
value for the exporting producer in question (see recital
17 of the provisional Regulation) is considered to be the
most appropriate for
the
exporting producer in question had no domestic sales
of the like product and of the same general category of
products in the IP, (ii) the products are perfectly inter-
changeable and (iii) only one other exporting producer
cooperated in the investigation. Moreover, if the normal
value had not been based on prices of the other Indian
producer, it would have been necessary to determine the
amounts for selling, for general and administrative costs
and for profits pursuant to Article 2(6)(c) of the basic
Regulation. On balance, the use of domestic sales prices
of the other Indian producer appears to be the most
representative
sales
conditions on the Indian domestic market and hence
for establishing normal value. The claim was therefore
rejected.

prevailing

reflecting

basis

for

(10)

In view of the above and in the absence of any other
comments concerning normal value, recitals 13 to 17 of
the provisional Regulation are hereby confirmed.

2. Export price

(11)

In the absence of any comments, recital 18 of the provi-
sional Regulation is hereby confirmed.

(14)

(15)

Following the imposition of provisional measures, one
party argued that for those exporting producers which
did not cooperate a higher dumping margin should be
calculated based on the lowest CIF prices of the coop-
erating exporting producers. In this respect, it is noted
that no indications were found showing that the non-
cooperating companies were dumping in the IP at a
than the cooperating companies. On the
higher level
contrary, a comparison between Eurostat data concerning
imports originating in India and the volume and value of
exports to the Community reported by the cooperating
exporting producers shows that (i) the volume of imports
non-cooperating
into
exporting producers represented less than 20 % of the
total
imports from India in the IP (the precise ratio
cannot be disclosed for confidentiality reasons), and (ii)
the prices charged by any non-cooperating exporting
producers on the Community market were apparently
higher
cooperating
charged
companies. This claim was thus rejected.

the Community

from any

those

than

the

by

Following the final disclosure, the same party reiterated
the above claim concerning the dumping margin of any
non-cooperating exporting producers. No new arguments
were brought forward, which could alter the conclusions
drawn in recital 14 above. The party concerned only
added that it could not verify the import data used in
the analysis carried out by the Commission, since they
were allegedly kept confidential. The company was
the import volume and the average
informed that
in recitals 38 and
import price were set out in detail
39 of the provisional Regulation and that the source
statistics,
i.e. Eurostat, were open to the public. Thus,
the company was in no case prevented from verifying
the Commission’s conclusions and defending its rights.
The claim is therefore rejected.

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(16)

In the light of the above, the definitive dumping margins,
expressed as a percentage of the CIF Community frontier
price, duty unpaid, are the following:

Company

Definitive dumping
margin

Neeru Enterprises, Rampur

Privi Organics Limited, Mumbai

All other companies

3,1 %

7,5 %

7,5 %

D. INJURY

(20)

Following the imposition of provisional measures, one
the Community
exporting producer
submitted that
producer which had made substantial
imports of dihy-
dromyrcenol from India in the IP (see recital 25 of the
provisional Regulation) should be excluded from the defi-
nition of the Community industry and consequently the
including the injury elimination level
injury analysis,
determination.
the
In this respect,
Community producer in question did not shift its core
business from production to importation. Indeed, it had
made the aforesaid imports from India in particular in
order to maintain its own production of the like product
viable. Therefore, no grounds for excluding this company
it is
from the Community industry exist. Furthermore,
in question was
noted that even if
the producer
excluded from the definition of
the Community
industry,
injury finding would not have been
different. The claim was therefore rejected.

is recalled that

the

it

(17)

(18)

added that the Commission had not properly analysed
the situation of the Community producer in question, i.e.
the producer which had made substantial imports of the
product concerned. In particular, the following aspects
(i) the percentage of the
were allegedly not analysed:
total Community production of the product concerned
that is accounted for by this importing producer; (ii) the
nature of this importing producer’s interest in impor-
tation; (iii) the level of long term nature of commitment
to domestic
shown by
production as opposed to continued importation; and
(iv)
imports to domestic production for
this importing producer.

importing producer

the ratio of

this

In this respect, it is noted that all of the points raised
concerning the situation of the Community producer in
question had indeed been properly analysed; however,
certain details could not be disclosed in view of their
confidential nature. As can be seen from recital 25 of
the provisional Regulation and recital 17 above, the main
reasons for non-excluding the producer in question from
the definition of the Community industry, and from the
Community production, were (i) the nature of its interest
in importation (i.e. it imported the product concerned in
order to maintain its own production in the Community
of the like product viable), and (ii) the marginal impact of
its situation on the overall situation of the Community
industry (i.e. the fact that its possible exclusion would
not alter the injury findings). Finally,
it goes without
saying, that by supporting the complaint and fully coop-
erating with the investigation this producer aimed at
curbing the influx of dumped imports from India.
It
has therefore clearly demonstrated its commitment to
domestic production as opposed to continued impor-
tation. The allegations cited in recital 19 above are
therefore rejected.

The same exporting producer also argued that the overall
the Community producers was
economic situation of
very good; in particular, it had allegedly improved signif-
icantly in 2005 and in the IP and such positive trend
would most likely continue in the near future according
to this exporter. These conclusions were based on the
the Community industry’s production
development of
and sales volume, stocks and market share presented in
recitals 45 to 47 of
the provisional Regulation. This
argument cannot be accepted because it does not
there was a
properly take account of
dramatic drop in sales prices of dihydromyrcenol in the
Community (see recitals 47 to 49 of the provisional
Regulation), and that
the Community industry only
managed to increase its production and sales volume
expanding
and,
Community market at the price of severe losses, a fall
in return on investment and cash outflow. The claim was
therefore rejected.

thus, maintain its

share on the

the fact

that

(21) With reference to recital 41 of the provisional Regu-
lation, one exporting producer submitted that the price
undercutting should have been based on the average
import price from India rather than the import prices
of the cooperating exporting producers. In this respect,
it is noted that given the level of cooperation in this case,
i.e. more than 80 %, and given that the total
import
i.e. they may
statistics are based on an ex CN code,
include certain quantity of products other than dihydro-
myrcenol (see recital 36 of the provisional Regulation),
the price comparison based on the average import price
would be much less precise than the individual company
undercutting margins established. The claim is therefore
rejected.

(19)

Following the final disclosure,
the exporting producer
referred to in recital 17 above reiterated its claim and

(22)

In view of the above and in the absence of any other
comments concerning injury, recitals 23 to 56 of the
provisional Regulation are hereby confirmed.

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(23)

(24)

(25)

E. CAUSATION

important aspects of

reasoning omits several

the volume of dumped imports of

Following the imposition of provisional measures, one
exporting producer claimed that
imports from India
had not caused injury to the Community industry
because their price was on the rise and their market
share fell by 2,4 percentage points in the IP. This line
of
the
development of the dumped imports from India and of
the situation on the Community market. As it was
the provisional
demonstrated in recitals 38 to 42 of
Regulation,
the
product concerned from India into the Community
increased from around 25 000 kilograms in 2003 to
around 760 000 kilograms in the IP. The market share
of these imports increased from 0,7 % in 2003 to 17,3 %
in the IP. The slight decrease of their share in the IP was
due to a sudden expansion of the Community market in
this period, rather than any decline in their volume;
indeed, the volume of the dumped imports from India
continued increasing in the IP, although not at the same
rate as in the previous period. Overall, the presence of
dumped imports from India on the Community market
increased much more significantly than the Community
consumption over the period considered. Finally,
it is
recalled that the dumped imports from India undercut
the prices of
the Community industry by substantial
margins. The surge of dumped imports at prices signifi-
cantly undercutting the Community industry’s prices
clearly coincided in time with the worsened situation
of
the Community industry. The claim was therefore
rejected.

The same exporting producer further argued that any
injury sustained by the Community industry had been
self-inflicted. They alleged that otherwise it was not
possible to suffer losses in an environment of increasing
increased prices, consequently increasing sales
demand,
and turnover, and increasing productivity. As a possible
explanation, this party cited the increased average salary
by 24 % from 2003 to the IP.

(26)

(27)

revenue of

Firstly, although the Community industry’s sales price on
the Community market increased by 2 % between 2005
and the IP, it was more than 30 % lower than in 2003,
while the volume of sales of the Community industry
only increased by 22 % between 2003 and the IP (see
recital 47 of the provisional Regulation). As a result, the
the Community industry on the
sales
Community market decreased significantly,
i.e. by
around 15 % over the period considered. Secondly, the
average labour cost development must be seen together
and productivity trends. As
with the
the provisional Regulation,
explained in recital 51 of
the
the 24 % increase over the period considered of
labour cost per worker was due,
to the
inter alia,
structure towards a higher
in employment
changes

employment

share of qualified labour. The figures confirm that these
changes resulted in higher productivity, which in turn
compensated the increased average labour cost. As a
result, the total labour cost per unit produced remained
is
the same. Moreover, production of dihydromyrcenol
not
the
is
increased salaries could not have contributed to the
Community industry’s losses. The claim was therefore
rejected.

thus considered that

labour-intensive.

It

the

same

final disclosure,

Following the
exporting
producer adduced several new arguments concerning
causation. These can be summarised as follows: (i) the
injury was
the product
self-inflicted by imports of
concerned made by the Community producer referred
to in recital 17 above; (ii) the injury was self-inflicted
by massive
investments made by the Community
industry in their new production capacity and by the
loans taken for this purpose from financial institutions;
(iii) the development of export sales of the Community
industry was not analysed;
the injury was self-
inflicted by increasing the production capacity and
hiring additional qualified labour and, thus,
increasing
the production costs.

(iv)

In respect of these new arguments,
it is noted that (i)
imports of the product concerned made by one of the
Community producers could not have affected the overall
situation of the Community industry because they were
minor (see recitals 17 and 20 above). In addition, it is
recalled that these imports had been made in reaction to
the massive influx of the dumped imports from India and
the losses caused to the Community industry thereby, i.e.
after the material injury had already taken place; (ii) no
new investments whatsoever into the production capacity
took place during the period considered; on the contrary,
capacity remained unchanged and investment signifi-
cantly decreased (see recitals 45 and 49 of the provi-
(iii) the export performance of the
sional Regulation);
Community industry was analysed in recital 68 of the
provisional Regulation and was not found breaking the
causal link; and (iv) no additional labour was hired by the
Community industry. As can be seen from recital 51 of
the provisional Regulation, the employment decreased by
15 % between 2003 and the
in
employment structure were achieved by laying-off unqua-
lified labour. As to the production capacity, it is recalled
that no expansion whatsoever took place. The arguments
cited in recital 26 above are thus rejected.

IP. The

changes

(28)

In view of the above and in the absence of any other
comments concerning causation, recitals 57 to 76 of the
provisional Regulation are hereby confirmed.

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F. COMMUNITY INTEREST

2. Form and level of measures

(29) One

submitted that

exporting producer

imposing
measures would greatly disturb importers and users in
the Community, thereby jeopardising thousands of jobs
and tax revenues, but did not adduce any evidence in this
respect. These allegations were considered irrelevant.
Indeed, none of the importers and users opposed the
provisional conclusions concerning their
(see
the provisional Regulation),
recitals 87 and 88 of
which has shown that these parties were not likely to
be substantially affected by any anti-dumping measures.
The claim was therefore rejected. The exporting producer
was also informed that exporting producers are normally
not considered parties concerned by the Community
interest analysis.

interest

(30)

No

included.

Following the final disclosure, this exporting producer
reiterated its claim and submitted that it had right to
comment on any aspect of the anti-dumping proceeding,
substantiated
Community
interest
arguments were, however, brought
forward, which
could alter the conclusions drawn in recital 29 above.
the exporting producers’ rights to raise
In respect of
comments on any aspect of the proceeding, it is noted
that they are indeed not barred from doing so. Never-
theless, according to Article 21(2) of the basic Regu-
lation, these parties are normally not concerned by the
Community interest analysis and their comments may be
disregarded, in particular when they are not supported by
any factual evidence.

(33)

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 both cooperating
exporting producers the injury elimination level was
found to be higher than the dumping margin.

(34) With reference to recitals 14 and 15 above,

is
considered appropriate to set
the duty for any other
companies, which had not cooperated in the investi-
gation, at the level of the higher duty to be imposed
on the cooperating companies.

it

(35) On the basis of the above, the definitive duty rates are as

follows:

Producer

Anti-dumping duty

Neeru Enterprises, Rampur

All other
Organics Limited, Mumbai)

companies

(including

3,1 %

7,5 %

Privi

(31)

In the absence of any other comments concerning the
Community interest assessment, recitals 77 to 90 of the
provisional Regulation are hereby confirmed.

(36)

G. DEFINITIVE ANTI-DUMPING MEASURES

1. Injury elimination level

(32)

excluded

from the

It is recalled that one exporting producer submitted that
the Community producer which had made substantial
from India in the IP
imports of dihydromyrcenol
should be
the
definition of
Community industry and consequently the injury elimi-
nation level determination should be based on the
only. As
remaining
explained in recitals 14 and 15 above, this claim was
not found justified. In this view and in the absence of
any other comments concerning the injury elimination
level, recitals 92 to 94 of the provisional Regulation are
hereby confirmed.

two Community

producers

Following the disclosure of the essential facts and consid-
erations on the basis of which it was intended to
recommend the imposition of definitive anti-dumping
measures, Neeru Enterprises proposed a price under-
taking in accordance with Article 8(1) of the basic Regu-
lation. However, it is noted that the product concerned
has shown in the last years a considerable volatility in
prices and therefore it is not suitable for a fixed price
undertaking. As an alternative approach, the possibility
of indexing the minimum import price to the price of
the main raw material, namely alpha-pinene, was
explored. However, this alternative was also not found
workable for the following reasons: (i) the fluctuation in
the price of the product concerned cannot be sufficiently
explained by the fluctuation in the price of alpha-pinene,
and (ii) alpha-pinene is not a commodity product for
which any generally accessible statistics
showing its
market prices would be available. On the basis of the
it was concluded that any price undertaking is
above,
cannot be
impractical
accepted.
informed
accordingly and given an opportunity to comment.
However,
its comments have not altered the above
conclusion.

and therefore
concerned was

case
exporter

in this

The

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(37)

is

thus

companies)

investigation. Therefore,

The individual company anti-dumping duty rate specified
in this Regulation was established on the basis of the
findings of
it
the present
reflects the situation found during that
investigation
to this company. This duty rate (as
with respect
opposed to the country-wide duty applicable to all
to
other
imports
country
concerned and produced by the company and thus by
Imported products
the specific legal entity mentioned.
produced by
specifically
mentioned in the operative part of this Regulation with
its name and address,
including entities related to that
specifically mentioned, cannot benefit from this rate and
shall be subject to the duty rate applicable to ‘all other
companies’.

exclusively applicable

company not

any other

originating

products

in the

of

(38) Any claim requesting the application of this individual
company anti-dumping duty rate (e.g. following a change
in the name of the entity or following the setting up of
new production or sales entities) should be addressed to
the Commission forthwith with all relevant information,
in particular any modification in the company’s activities
linked to production, domestic and export sales asso-
that name change or that
ciated with,
change in the production and sales entities.
If appro-
priate, the Regulation will then be amended accordingly
by updating the list of companies benefiting from indi-
vidual duty rates.

for example,

3. Collection of provisional duty

(39)

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, be collected
the duty
definitively to the extent of
definitively imposed by the present Regulation. Where
the definitive duty is lower than the provisional duty,
the duty shall be recalculated and the amounts secured
in excess of the definitive duty rate should be released,

the amount of

HAS ADOPTED THIS REGULATION:

Article 1

A definitive anti-dumping duty is hereby imposed on
1.
imports of dihydromyrcenol of a purity by weight of 93 % or
more,
falling within CN code ex 2905 22 90 (TARIC code
2905 22 90 10), originating in India.

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

Producer

Anti-dumping duty
(%)

TARIC
Additional Code

Neeru Enterprises, Rampur, India

All other companies

3,1

7,5

Unless otherwise

3.
concerning customs duties shall apply.

specified,

the provisions

A827

A999

in force

Article 2

Amounts secured by way of the provisional anti-dumping duty
pursuant
to Commission Regulation (EC) No 896/2007 on
imports of dihydromyrcenol of a purity by weight of 93 % or
more,
falling within CN code ex 2905 22 90 (TARIC code
shall be definitively
2905 22 90 10), originating in India,
collected in accordance with the rules set out above. The
amounts secured in excess of
the definitive
anti-dumping duty shall be released.

the amount of

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, 21 January 2008.

For the Council
The President

I. JARC