Council Regulation (EC) No 150/2008 of 18 February 2008 amending the scope of the anti-dumping measures imposed by Regulation (EC) No 130/2006 on imports of tartaric acid originating in the People’s Republic of China
Date: 2008-02-18
Institutions: Council of the European Union
Subjects: China, anti-dumping duty, anti-dumping measure, import (EU), organic acid, originating product

22.2.2008

EN

Official Journal of the European Union

L 48/1

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

I

REGULATIONS

COUNCIL REGULATION (EC) No 150/2008

of 18 February 2008

amending the scope of the anti-dumping measures imposed by Regulation (EC) No 130/2006 on
imports of tartaric acid originating in the People’s Republic of China

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty
Community,

establishing the European

(3)

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 11(3) thereof,

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

(4)

Whereas:

(1)

(2)

1. MEASURES IN FORCE

By Regulation (EC) No 130/2006 (2) (the original Regu-
imposed a definitive anti-dumping
lation) the Council
duty on imports of
tartaric acid originating in the
People’s Republic of China (PRC).

2. PRESENT INVESTIGATION

2.1. Procedure

(5)

(6)

The Commission received a request from CU Chemie
Uetikon GmbH (‘the applicant’), an importer
from
Germany,
to
the basic Regulation. The applicant
Article 11(3) of
is a distinct
type
so-called D-(-)
the
alleged that
tartaric acid, due to its
product

interim review pursuant

from other types of

for a partial

specific molecular structure, which in turns determines
specific chemical characteristics not shared by other
types of
the product concerned and should not be
therefore subject to the abovementioned measures.

after

determined,
that

consulting
sufficient evidence existed for

the Advisory
Having
the
Committee,
interim review, the Commission,
initiation of a partial
initiated an investigation (3)
on 17 March 2007,
according to Article 11(3) of the basic Regulation. The
investigation was limited in scope to the definition of the
product covered by the measures in force.

the

advised

officially

The Commission
applicant
importer, the authorities of the exporting country and
all parties known to be concerned, of the initiation of
this review. Questionnaires were sent
to Community
importers, users and exporting producers
producers,
who cooperated in the investigation that
led to the
existing measures.
Interested parties were given the
opportunity to make their views known in writing and
to request a hearing within the time limit set out in the
notice of initiation.

Two questionnaire replies were received and one party
was granted a hearing.

The Commission sought and verified all the information
it deemed necessary for the purpose of assessing whether
the measures should be amended and
the scope of
carried out
the
investigations
following companies:

the premises of

at

— CU Chemie Uetikon GmbH, Lahr, Germany,

(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 23, 27.1.2006, p. 1.

— Longchem Corporation, Hangzhou, China.

(3) OJ C 63, 17.3.2007, p. 2.

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Official Journal of the European Union

22.2.2008

(7)

investigation period covered the period from

The
1 January 2006 to 31 December 2006.

manufacture of its products, rather than just using one
(less expensive) type of tartaric acid.

(8)

(9)

(10)

(11)

2.2. Product concerned

currently

The product concerned, as defined in the original Regu-
lation, is tartaric acid originating in the People’s Republic
of China,
classifiable within CN code
2918 12 00. The product concerned is used in wine, in
beverage and food additives, as a retardant in plaster and
in numerous other products. It can be obtained either
form the by-products of wine making, as is the case with
all Community producers, or via chemical synthesis from
petrochemical compounds, as is the case with all PRC
exporting producers.

2.3. Findings

Tartaric acid is a ‘chiral’ molecule, i.e. it exists in different
geometric configurations. The ‘L-(+)’ and ‘D-(-)’
types
(hereinafter ‘L’ and ‘D’ tartaric acid respectively), whose
molecules are a mirror image of each other, are of
tartaric acid are
particular relevance. Those types of
distinguished in widely accepted industry references
such as Chemical Abstract Services (CAS) or European
Inventory of Existing Commercial Chemical Substances
(Einecs). They can be readily distinguished from one
another through a test which measures the rotation of
polarised light. The direction of rotation for ‘L’ tartaric
acid is positive while that for ‘D’ tartaric acid is negative.

(12)

(13)

The investigation has also shown that the price of ‘D’
tartaric acid is 4 to 5 times higher than that of other
types of tartaric acid, which is a result of the different
production process used in its manufacture. This higher
price restricts the market for ‘D’ tartaric acid to appli-
cations such as mentioned above, where other,
less
expensive types of tartaric acid cannot be used. As a
result of those differences in application and costs, the
size of the market for ‘D’ tartaric acid is estimated to be
less than 1 % of the overall market for tartaric acid.

In summary, the investigation has found that ‘D’ tartaric
acid has substantially different physical and chemical
characteristics from those of ‘L’ tartaric acid produced
by the Community industry, meaning that
the two
types are not interchangeable and not competing in the
Community market. Given those differences between ‘D’
tartaric acid and the product investigated, it is concluded
that
tartaric acid should not be covered by the
product scope of the measures.

‘D’

(14)

The above conclusions were based on the characteristics
of pure ‘D’ tartaric acid, and therefore do not apply to
any mixtures of ‘D’ tartaric acid with other products.

The investigation which led to the measures in force
focused on naturally-occurring tartaric acid.
It was
found that the product manufactured and sold by the
Chinese producers had the same basic characteristics as
the product of
the Community industry, and was in
competition with the latter for a majority of the above-
mentioned applications.

(15)

Interested
conclusions.

parties were

informed

of

the

above

(16)

The Community industry, while not questioning the
findings of the investigation, expressed its concern that
exempting one product type could facilitate the circum-
vention of the measures.

‘D’ tartaric acid, on the other hand,
is not naturally-
occurring and can only be obtained via chemical
synthesis. This type of tartaric acid is not produced by
the Community industry and it is not recognised in the
Community as a food additive. Its known applications
are in the pharmaceutical industry, in the production of
certain auxiliary substances which are themselves used to
produce the active ingredients of medicines. Either ‘L’ or
‘D’ tartaric acid can be used in this type of pharma-
ceutical applications, depending on the intended charac-
teristics of the end product. However, the ‘D’ and ‘L’
types cannot be substituted for one another within any
single application. These conclusions were confirmed by
the applicant, a company producing
the fact
auxiliary substances
industry,
the pharmaceutical
purchased and used both ‘L’ and ‘D’ tartaric acid in the

that

for

(17)

(18)

and quantities

It is considered, however, that given the differences in
circumvention can
prices
be
promptly
data.
‘D’ tartaric acid can be easily distinguished
Furthermore,
from other types through an optical test as mentioned
above.

statistical

involved,

detected

through

The Commission will monitor the import data of ‘D’
tartaric acid and the other types which are subject to
measures.
and/or prices of
tartaric acid into any Member State
imports of
depart
the Commission will
immediately alert the appropriate customs authorities.

Should the quantities
‘D’

from the normal

trend,

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Official Journal of the European Union

L 48/3

3. RETROACTIVE APPLICATION

HAS ADOPTED THIS REGULATION:

(19) Given the above, it is considered appropriate to amend
the original Regulation to clarify the product definition
and to exclude ‘D’ tartaric acid from the measures.

(20)

(21)

(22)

(23)

Since the present review investigation is limited to the
clarification of the product scope and since it was not
intended this product type be covered by the original
measures, in order to prevent any consequent prejudice
to importers of the product, it is considered appropriate
that the findings be applied from the date of the entry
into force of
including any
the original Regulation,
imports subject to provisional duties between 30 July
2005 and 28 January 2006. Moreover, in particular in
view of
the
original Regulation and of the expected limited number
of requests for refunds, there is no overriding reason not
to provide for such retroactive application.

the relatively recent entry into force of

Consequently, for goods not covered by Article 1(1) of
Regulation (EC) No 130/2006 as amended by this Regu-
lation, the definitive anti-dumping duties paid or entered
in the accounts pursuant to Article 1(1) of Regulation
(EC) No 130/2006 in its initial version should be repaid
or remitted.

Repayment or remission must be requested from national
customs
in accordance with applicable
customs legislation.

authorities

This review does not affect the date on which Regulation
(EC) No 130/2006 will expire pursuant to Article 11(2)
of the basic Regulation,

Article 1

Article 1(1) of Regulation (EC) No 130/2006 is hereby replaced
by the following:

‘1.
A definitive anti-dumping duty is hereby imposed on
imports of tartaric acid, excluding D-(-)-tartaric acid with a
negative optical rotation of at least 12,0 degrees, measured in
a water solution according to the method described in the
European
CN code
ex 2918 12 00 (TARIC code 2918 12 00 90), and originating
in the People’s Republic of China.’.

falling within

Pharmacopoeia,

Article 2

For goods not covered by Article 1(1) of Regulation (EC) No
130/2006 as amended by this Regulation, the definitive anti-
dumping duties paid or entered in the accounts pursuant to
Article 1(1) of Regulation (EC) No 130/2006 in its initial
version shall be repaid or remitted, pursuant to Article 236
of Council Regulation (EEC) No 2913/92 of 12 October
Code (1).
1992
Repayment or
remission shall be requested from national
customs authorities in accordance with applicable customs legis-
lation.

Community

establishing

Customs

the

Article 3

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

It shall apply from 28 January 2006.

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

Done at Brussels, 18 February 2008.

For the Council
The President

D. RUPEL

(1) OJ L 302, 19.10.1992, p. 1. Regulation as last amended by Regu-

lation (EC) No 1791/2006 (OJ L 363, 20.12.2006, p. 1).