Proposal for a Council Regulation terminating the new exporter review of Regulation (EC) No 130/2006 imposing a definitive anti-dumping duty on imports of tartaric acid originating in the People's Republic of China
Date: 2008-06-30
Institutions: European Commission
Subjects: China, anti-dumping duty, anti-dumping legislation, import, organic acid, originating product

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 30.6.2008 
COM(2008) 410 final 

Proposal for a 

COUNCIL REGULATION 

terminating the new exporter review of Regulation (EC) No 130/2006 imposing a 
definitive anti-dumping duty on imports of tartaric acid originating in the People's 
Republic of China 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

(1) 

CONTEXT OF THE PROPOSAL 

•  Grounds for and objectives of the proposal 

This  proposal  concerns  the  application  of  Council  Regulation  (EC)  No  384/96  of 
22 December 1995 on protection against dumped imports from countries not members of the 
European  Community,  as  last  amended  by  Council  Regulation  (EC)  No 2117/2005  of  21 
December 2005 ('the basic Regulation'). 

•  General context 

This proposal is made in the context of the implementation of the basic Regulation and is the 
result  of  an  investigation  which  was  carried  out  in  line  with  the  substantive  and  procedural 
requirements laid out in the basic Regulation. 

•  Existing provisions in the area of the proposal 

Council  Regulation  (EC)  No  130/2006  of  27  January  2006  imposing  a  definitive  anti-
dumping duty on imports of tartaric acid originating in the People's Republic of China. 

•  Consistency with other policies and objectives of the Union 

Not applicable. 

(2) 

CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

•  Consultation of interested parties 

Interested  parties  concerned  by  the  investigation  have  had  the  possibility  to  defend  their 
interests during the investigation, in line with the provisions of the basic Regulation. 

•  Collection and use of expertise 

There was no need for external expertise. 

•  Impact assessment 

This proposal is the result of the implementation of the basic Regulation. 

The basic Regulation does not foresee a general impact assessment but contains an exhaustive 
list of conditions that have to be assessed. 

(3) 

LEGAL ELEMENTS OF THE PROPOSAL 

•  Summary of the proposed action 

By Regulation (EC) No 130/2006 of 27 January 2006, the Council imposed a definitive anti-
dumping  duty  on  imports  of  tartaric  acid  originating  in  the  People's  Republic  of  China 
('original investigation') 

On  30  November  2007,  the  Commission  initiated  a  new  exporter  review  for  one  exporting 
producer  in  the  People's  Republic  of  China.  The  initiation,  by  way  of  publication  of 
Commission Regulation (EC) No 1406/2007, was based on prima facie evidence supplied by 
one exporting producer showing that this exporting producer 

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–  did  not  export  tartaric  acid  before  or  during  the  investigation  period  of  the  original 

investigation,  

–  was not related to any of the exporting producers that are subject to the measures imposed 

by Council Regulation 130/2006,  

–  had  started  to  export  tartaric  acid  to  the  Community  after  the  end  of  the  investigation 

period of the original investigation. 

The enclosed Commission proposal for a Council Regulation is terminating this new exporter 
review, as the investigation has shown that the exporting producer did not export tartaric acid 
to the Community after the end of the investigation period of the original investigation.  

It is proposed that the Council adopts the attached proposal for a Regulation which should be 
published in the Official Journal of the European Union. 

•  Legal basis 

Council  Regulation  (EC)  No  384/96  of  22  December  1995  on  protection  against  dumped 
imports from countries not members of the European Community, as last amended by Council 
Regulation (EC) No 2117/2005 of 21 December 2005. 

•  Subsidiarity principle 

The  proposal  falls  under  the  exclusive  competence  of  the  Community.  The  subsidiarity 
principle therefore does not apply. 

•  Proportionality principle 

The  proposal  complies  with  the  proportionality  principle  because  the  form  of  action  is 
described in the above-mentioned basic Regulation and leaves no scope for national decision. 

Indication of how financial and administrative burden falling upon the Community, national 
governments, regional and local authorities, economic operators and citizens is minimized and 
proportionate to the objective of the proposal is not applicable. 

•  Choice of instruments 

Proposed instruments: Regulation. 

Other means would not be adequate because the above-mentioned basic Regulation does not 
foresee alternative options. 

(4) 

BUDGETARY IMPLICATION 

The proposal has no implications for the Community budget. 

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Proposal for a 

COUNCIL REGULATION 

terminating the new exporter review of Regulation (EC) No 130/2006 imposing a 
definitive anti-dumping duty on imports of tartaric acid originating in the People's 
Republic of China 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, 

Having  regard  to  Council  Regulation  (EC)  No  384/96  of  22  December  1995  on  protection 
against dumped imports from countries not members of the European Community1 ('the basic 
Regulation'), and in particular Articles 11(4) thereof, 

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

Whereas: 

1. 

(1) 

(2) 

2. 

2.1. 

(3) 

MEASURES IN FORCE 
By  Regulation  (EC)  No  130/20062,  the  Council  imposed  a  definitive  anti-dumping 
duty on imports of tartaric acid originating in the People's Republic of China ('PRC') 
('the original investigation'). The measures in force consist of an ad valorem duty rate 
of  34,9%,  with  the  exception  of  several  companies  expressly  mentioned  which  are 
subject to individual duty rates.  
By  Regulation  (EC)  No  150/20083,  following  an  interim  review  pursuant  to  Article 
11(3) of the basic Regulation, the Council amended the scope of the measures. 

CURRENT INVESTIGATION 

Request for a review 

to 

the 

imposition  of 

the 
Subsequent 
Commission received a request for a 'new exporter' review pursuant to Article 11(4) of 
the basic Regulation. The request was based on the claim that the exporting producer, 
Fuyang Genebest Chemical Industry Co Ltd. ('the applicant'),  

the  definitive  anti-dumping  measures, 

–  did not export tartaric acid before or during the investigation period of the original 

investigation,  

–  was not related to any of the exporting producers subject to the measures imposed 

by Regulation (EC) No 130/2006,  

–  had  started  to  export  tartaric  acid  to  the  Community  after  the  end  of  the 

investigation period of the original investigation, 

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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). 
OJ L 23, 27.1.2006, p.1 
OJ L 48, 22.2.2008, p.1. 

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–  operates  under  market  economy  conditions  as  defined  in  Article  2(7)(c)  of  the 
basic  Regulation  or  alternatively  claims  individual  treatment  in  conformity  with 
Article 9(5) of the basic Regulation.  

Initiation of a 'new exporter' review 

The  Commission  examined  the  prima  facie  evidence  submitted  by  the  applicant  and 
considered it sufficient to justify the initiation of a review pursuant to Article 11(4) of 
the  basic  Regulation.  After  consultation  of  the  Advisory  Committee  and  after  the 
Community  industry  concerned  had  been  given  the  opportunity  to  comment,  the 
Commission  initiated,  by  Regulation  (EC)  No  1406/20074,  a  review  of  Regulation 
(EC) No 130/2006 with regard to the applicant.  

Pursuant  to  Article  2  of  Commission  Regulation  1406/2007,  the  anti-dumping  duty 
imposed  by  Council  Regulation  (EC)  No  130/2006  on  imports  of  tartaric  acid 
produced by the applicant was repealed. Simultaneously, pursuant to Article 14(5) of 
the  basic  Regulation,  customs  authorities  were  directed  to  take  appropriate  steps  to 
register the imports of tartaric acid produced by the applicant. 

Product concerned 

The  product  concerned  by  the  current  review  is  tartaric  acid,  the  same  as  in  the 
original  investigation,  subject,  however,  to  the  limitation  in  scope  introduced  by 
Regulation (EC) No 150/2008. 

Parties concerned 

The  Commission  officially  advised  the  Community  industry,  the  applicant  and  the 
representatives  of  the  exporting  country  of  the  initiation  of  the  review.  Interested 
parties  were  given  the  opportunity  to  make  their  views  known  in  writing  and  to  be 
heard. 

The  Commission  sent  a  market  economy  treatment  claim  and  a  questionnaire  to  the 
applicant and received a reply within the deadlines set for this purpose.  

The  Commission  sought  and  verified  all  the  information  deemed  necessary  for  its 
analysis and carried out a verification visit at the premises of the applicant 

2.2. 

(4) 

(5) 

2.3. 

(6) 

2.4. 

(7) 

(8) 

(9) 

2.5. 

Review investigation period 

(10)  The  investigation  of  dumping  covered  the  period  from  1  April  2006  -  30  September 

2007 ('review investigation period' or 'RIP'). 

3. 

RESULTS OF THE INVESTIGATION 

3.1. 

Findings 

(11)  The questionnaire response indicated a number of export sales transactions which were 
identical to the information submitted in the application for the review and which were 
allegedly destined for the Community. 

(12)  The  investigation  showed  that  the  applicant  did  not  directly  export  the  product 
concerned (defined in section 2.3. above) during the RIP. The export transactions were 
in  fact  made  by  an  independent  trader  in  the  PRC,  to  which  the  applicant  issued  a 
domestic invoice. The applicant could only provide customs declaration forms which 
showed  that  the  goods  were  exported  from  the  PRC  but  which  did  not  indicate  the 

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OJ L 312, 30.11.2007, p.12 

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export destination. A further investigation was carried out at the premises of this trader 
in  order  to  obtain  and  verify  the  necessary  evidence  of  the  alleged  exports  to  the 
Community. 

(13)  The  verification  of  the  export  documentation  did  not  show  that  the  goods  had  been 
released  for  free  circulation  in  the  Community.  The  goods  were  unloaded  in  two 
Community  ports,  but  the  invoices  were  addressed  to  a  customer  located  in  a  third 
country outside the Community. The trader confirmed that the final destination of the 
goods was outside the Community, where the final customer was located. 

(14)  Eurostat import statistics of tartaric acid were also analysed. The analysis of the import 
statistics confirmed that the goods exported by the applicant were not released for free 
circulation within the Community. 

3.2. 

Conclusion 

(15)  On  the  basis  of  the  above  findings,  it  was  concluded  that  the  applicant  could  not 
demonstrate  that  it  met  the  criteria  for  being  considered  a  new  exporter  within  the 
meaning of Article 11(4) of the basic Regulation.  

(16)  The purpose of the present review was to determine the individual margin of dumping 
of  the  applicant,  which  was  allegedly  different  from  the  current  residual  margin 
applicable to imports of the product concerned from the PRC. The request was mainly 
based  on  the  allegation  that  the  applicant  had  started  to  export  tartaric  acid  to  the 
Community after the end of the investigation period of the original investigation and 
that it had such exports to the Community during the RIP. 

(17)  The investigation concluded that, in the absence of exports to the Community during 
the  RIP,  the  Commission  could  not  establish  that  the  applicant's  individual  dumping 
margin  was  indeed  different  from  the  residual  dumping  margin  established  in  the 
original investigation. Therefore, the request made by the applicant should be rejected 
and the new exporter review terminated. The residual anti-dumping duty found during 
the original investigation, i.e. 34,9%, should consequently be maintained as far as the 
applicant is concerned.  

4. 

(18) 

RETROACTIVE LEVYING OF THE ANTI-DUMPING DUTY 

In  the  light  of  the  above  findings,  the  anti-dumping  duty  applicable  to  the  applicant 
shall  be  levied  retroactively  on  imports  of  the  product  concerned,  which  have  been 
made subject to registration pursuant to Article 3 of Commission Regulation (EC) No 
1406/2007. 

5. 

FINAL PROVISIONS 

(19)  The  applicant,  the  Community  industry  and  the  representatives  of  the  exporting 
country  were  informed  of  the  essential  facts  and  considerations  leading  to  the  above 
conclusions and were given an opportunity to comment. No comments which were of 
a nature to change the above conclusions were received. 

(20)  This  review  does  not  affect  the  date  on  which  the  measures  imposed  by  Regulation 
(EC) No 130/2006, as amended by Regulation (EC) No 150/2008, will expire pursuant 
to Article 11(2) of the basic Regulation, 

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HAS ADOPTED THIS REGULATION: 

Article 1 

1. 

2. 

3. 

4. 

The  new  exporter  review  initiated  by  Commission  Regulation  (EC)  1406/2007  is 
hereby  terminated  and  the  anti-dumping  duty  applicable,  according  to  Article  1  of 
Council Regulation (EC) No 130/2006, as amended by Council Regulation (EC) No 
150/2008,  to  'all  other  companies'  in  the  People's  Republic  of  China  is  hereby 
imposed  on  imports  identified  in  Article  1  of  Commission  Regulation  (EC)  No 
1406/2007. 

The  anti-dumping  duty  applicable,  according  to  Article  1(2)  of  Council  Regulation 
(EC)  No  130/2006,  as  amended  by  Council  Regulation  (EC)  No  150/2008,to  'all 
other companies' in the People's Republic of China is hereby levied with effect from 
1 December 2007 on imports of tartaric acid which have been registered pursuant to 
Article 3 of Commission Regulation (EC) No 1406/2007. 

The  customs  authorities  are  hereby  directed  to  cease  the  registration  carried  out 
pursuant to Article 3 of Commission Regulation (EC) No 1406/2007. 

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

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

Article 2 

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

Done at Brussels, 

For the Council 
The President  

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