Council Regulation (EC) No 1355/2008 of 18 December 2008 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain prepared or preserved citrus fruits (namely mandarins, etc.) originating in the People’s Republic of China
Date: 2008-12-18
Institutions: Council of the European Union
Subjects: China, anti-dumping duty, citrus fruit, import licence, originating product, prepared foodstuff, preserved product, protective clause

30.12.2008

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Official Journal of the European Union

L 350/35

COUNCIL REGULATION (EC) No 1355/2008

of 18 December 2008

imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on
imports of certain prepared or preserved citrus fruits (namely mandarins, etc.) originating in the
People’s Republic of China

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty
Community,

establishing the European

Having regard to Council Regulation (EC) No 384/96 of
22 December 1995 on protection against dumped imports
from countries not members of the European Community (1)
(the ‘basic Regulation’) and in particular Article 9 thereof,

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

Whereas:

(1)

(2)

A. PROVISIONAL MEASURES

Journal of

On 20 October 2007 the Commission announced by a
notice published in the Official
the European
Union the initiation of an anti-dumping proceeding
into the Community of certain
concerning imports
prepared or preserved citrus fruits (namely mandarins,
etc.) originating in the People’s Republic of China
(PRC) (2). On 4 July 2008, the Commission, by Regu­
lation (EC) No 642/2008 (3) (the ‘provisional Regulation’)
imposed a provisional anti-dumping duty on imports of
certain prepared or preserved citrus fruits originating in
the PRC.

The proceeding was initiated as a result of a complaint
lodged on 6 September 2007 by the Spanish National
Federation of Associations of Processed Fruit and Vege­
tables (FNACV) (the complainant) on behalf of producers
representing 100 % of the total Community production
of certain prepared or preserved citrus fruits (namely
mandarins etc.). The complaint contained evidence of
the product concerned and of material
dumping of
considered
from, which was
injury resulting there
sufficient to justify the initiation of a proceeding.

(4)

(5)

(6)

(7)

from 1 October 2006 to 30 September 2007 (IP). The
for the assessment of
examination of
injury covered the period from 1 October 2002 to the
end of the investigation period (period considered).

trends relevant

On 9 November 2007, the Commission made imports of
the same product originating in the PRC subject to regis­
tration by Regulation (EC) No 1295/2007 (4).

It
is recalled that safeguard measures were in force
against the same product until 8 November 2007. The
Commission imposed provisional
safeguard measures
against imports of certain prepared or preserved citrus
fruits (namely mandarins, etc.) by Regulation (EC) No
1964/2003 (5). Definitive safeguard measures followed
by Regulation (EC) No 658/2004 (the ‘safeguard Regu­
lation’) (6). Both the provisional and definitive safeguard
measures consisted of a tariff rate quota i.e. a duty was
only due once the volume of duty free imports had been
exhausted.

B. SUBSEQUENT PROCEDURE

Following the imposition of provisional anti-dumping
duties on imports of the product concerned originating
in the
submitted
comments in writing. The parties who so requested
were also granted the opportunity to be heard.

interested

several

parties

PRC;

The Commission continued to seek and verify all infor­
mation it deemed necessary for its definitive findings. In
particular, the Commission completed the investigation
In this
with regard to Community interest aspects.
respect, verification visits were
the
at
carried out
premises of
the following unrelated importers in the
Community:

— Wünsche Handelsgesellschaft International (GmbH &

Co KG), Hamburg, Germany,

— Hüpeden & Co (GmbH & Co), Hamburg, Germany,

(3)

As set out in recital 12 of the provisional Regulation, the
investigation of dumping and injury covered the period

— I. Schroeder KG. (GmbH & Co), Hamburg, Germany,

(1) OJ L 56, 6.3.1996, p. 1.
(2) OJ C 246, 20.10.2007, p. 15.
(3) OJ L 178, 5.7.2008, p. 19.

(4) OJ L 288, 6.11.2007, p. 22.
(5) OJ L 290, 8.11.2003, p. 3.
(6) OJ L 104, 8.4.2004, p. 67.

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— Zumdieck GmbH, Paderborn, Germany,

— Gaston spol. s r.o., Zlin, Czech Republic.

60 % of the total exports to the Community. Never­
theless, they were not able to provide any verifiable infor­
mation that could undermine the accuracy of
the
sampling information submitted by the cooperating
Chinese exporting producers and largely confirmed in
the course of the further investigation. This argument is
therefore rejected.

(8)

(9)

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 the product concerned originating in
the PRC and the definitive collection of the amounts
secured by way of the provisional duty. They were also
granted a period of time within which they could make
representations subsequent to this disclosure.

(13)

importers proposed a

Some
all
interested parties, pursuant to Article 6(6) of the basic
Regulation; however the request was refused by one of
them.

joint meeting of

exporting

cooperating

cooperating

producers
Three
Chinese
related
their
claimed that
submitted representations
companies were exporting producers of
the product
concerned and should therefore be included in the
Annex of
exporting producers. These
claims were considered warranted and it was decided
to revise the relevant Annex accordingly. One unrelated
EC importer argued that exports made to the EC through
traders should automatically be allowed to benefit from
the measures
exporting
producers. In this respect, it is noted that anti-dumping
measures are imposed on products manufactured by
exporting producers in the country under investigation
that are exported to the EC (irrespective of which
to business entities
company trades
claim was
engaged only in trading activities. The
therefore rejected.

to the Chinese

them) and not

applicable

(10)

The oral and written comments
interested parties were
account where appropriate.

submitted by the
considered and taken into

(11)

C. PRODUCT CONCERNED AND LIKE PRODUCT

Two unrelated EC importers argued that certain types of
mandarins should be excluded from the definition of the
product concerned either because of their sweetness level
their packing when exported.
or because of
In this
it is noted that these claims were not accom­
respect,
panied with any type of verifiable information and data
proving that these types have characteristics that differ­
entiate them from the product concerned. It is also noted
that differences in packing cannot be considered as a
critical element when defining product concerned, espe­
cially when formats of packing were already taken into
account when defining the product concerned as set out
in recital 16 of
the provisional Regulation. These
arguments are therefore rejected.

E. DUMPING

1. Market economy treatment (MET)

(14)

Following the imposition of provisional measures, no
comments were submitted by the Chinese cooperating
exporting producer with respect to the MET findings.
In the absence of any relevant comments, recitals 29
to 33 of
the provisional Regulation are hereby
confirmed.

2. Individual treatment

(15)

In the absence of any relevant comments, recitals 34 to
37 of the provisional Regulation concerning individual
treatment are hereby confirmed.

D. SAMPLING

3. Normal value

1. Sampling for exporting producers in the PRC

(16)

(12)

Two unrelated EC importers disputed that the Chinese
exporting producers selected for the sample represented

It is recalled that the normal value determination was
based on the data provided by
the Community
Industry. This data was verified at the premises of the
cooperating Community producers.

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Official Journal of the European Union

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(17)

Following the imposition of provisional measures, all
three Chinese sampled cooperating exporting producers
and two unrelated EC importers questioned the use of
Community Industry prices for the calculation of normal
value. It was submitted that normal value should have
been calculated on the basis of the PRC production costs
account taken of any appropriate adjustments relating to
the differences between the EC and the PRC markets. In
this respect it is noted that the use of information from a
non-market economy country and in particular from
companies which have not been granted MET would
be contrary to the provisions of Article 2(7)(a) of the
basic Regulation. This argument is therefore rejected. It
was also argued that data on prices from all other
importing countries or relevant published information
could have been used as a reasonable solution account
the lack of analogue country cooperation.
taken of
However, such general
in contrast to the
data used by the Commission, could not have been
verified and cross checked with regard to their accuracy
in line with the provisions of Article 6(8) of the basic
Regulation. This argument is therefore rejected. No other
argument was submitted that could cast doubt on the
fact that the methodology used by the Commission is in
line with the provisions of Article 2(7)(a) of the basic
Regulation and, in particular, the fact that it constitutes
in this particular case the only remaining reasonable basis
for calculation of normal value.

information,

(18)

In the absence of any other comments, recitals 38 to 45
of the provisional Regulation are hereby confirmed.

4. Export price

(19)

sampled

exporting

Following the imposition of provisional measures, one
producer
cooperating
Chinese
submitted that its export price should be adjusted in
order to take into account certain cost elements (in
particular ocean freight). In this respect it is noted that
this issue was dealt with during the on-the-spot verifi­
cation both with regard to this company as well with
regard to the other companies in the sample. On that
occasion, each company submitted information with
regard to the costs in question. The amount claimed
now by the company is considerably higher than the
It is noted that this new
amount originally reported.
claim is based simply on a declaration by a freight
forwarder and does not reflect data relating to a real
transaction. None of
sampled exporting
producers questioned the figures used with respect to
ocean freight. Moreover, given the late submission, this
claim can not be verified. In particular, the adjustment
requested does not relate to any data already on the file.
Following this claim the Commission has nevertheless
reviewed the amount of the cost in question account
taken of the importance of this particular cost to the
EC export transactions reported by the company. As a
consequence, the Commission came to the conclusion
that it is more appropriate to use the average ocean
the sampled
freight cost verified on-the-spot

the other

for all

Chinese companies. Consequently, the company’s export
price was adjusted accordingly.

(20) One other Chinese

sampled cooperating exporting
producer highlighted two computation errors on the
calculation of its export price related to its submitted
export
listings. The claim was considered warranted
and the producer’s relevant export price was revised
accordingly.

(21)

In the absence of any other comments in this respect,
recital 46 of
the provisional Regulation is hereby
confirmed.

5. Comparison

(22)

In the absence of any comments in this respect, recitals
47 and 48 of
the provisional Regulation are hereby
confirmed.

6. Dumping margins

(23)

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

— Yichang Rosen Foods Co., Ltd, Yichang, Zhejiang

139,4 %,

— Huangyan No 1 Canned Food Factory, Huangyan,

Zhejiang 86,5 %,

— Zhejiang Xinshiji Foods Co., Ltd, Sanmen, Zhejiang
and its related producer Hubei Xinshiji Foods Co.,
Ltd, Dangyang City, Hubei Province 136,3 %,

— Cooperating exporting producers not included in the

sample 131 %.

All other companies 139,4 %.

F. INJURY

1. Community production and Community industry

(24)

In the absence of substantiated comments, the findings
set out in recitals 52 to 54 of the provisional Regulation
are confirmed.

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2. Community consumption

(25) One of

the exporting parties argued that

there is a
discrepancy between the level of the consumption set
out in the safeguard Regulation No 658/2004 and the
level set in the provisional Regulation. It is underlined
that
the difference in the level of consumption was
basically due to the different product scope in the
current
investigation and to the different number of
Member States in those two investigations. No further
and substantiated information was
received in this
respect. The findings set out in recitals 55 to 57 of the
provisional Regulation are therefore confirmed. As a
corollary,
the analysis which
draw on consumption are also confirmed in this respect.

the subsequent parts of

(26)

(27)

3. Imports from the country concerned

(a) Volume and market

share of

imports of

the product

concerned

In respect of the market share some interested parties
opposed the Commission statement set out
in recital
58 that indicated an increase of the market share of
the dumped imports. They argued that contrary to the
Commission findings the market share of imports from
China decreased. The evaluation of imports from the PRC
in volume and market share was verified. As set out in
recital 58 of the provisional Regulation there was only
one year where the market share of the Chinese imports
decreased. For the rest of the period examined the market
share of imports from China remained consistently high.
Therefore the findings presented at the provisional stage
are confirmed.

It

is to be noted that

Some parties argued that post-IP volumes should also be
imports
examined to assess whether Chinese
are
increasing.
trends on imports
from China were evaluated for the period 2002/2003
to 2006/2007 and a clear increase was observed.
In
accordance with the provisions of the basic Regulation,
post-IP events are not
in
exceptional circumstances. In any event, as stated below
in recital 48 the level of imports post-IP was examined
and was found to be significant.

taken into account, except

(b) Price undercutting

(28)

Three cooperating exporting producers contested the
Commission’s findings on undercutting. One contested
the methodology used to calculate undercutting and
requested an adjustment
to reflect costs borne by
traders for their indirect sales. Where justified, calcu­
lations were adapted. The revised comparison showed

imports of the product concerned
that, during the IP,
were sold in the Community at prices which undercut
the Community industry’s prices by a range of 18,4 % to
35,2 % based on the data submitted by the sampled
cooperating exporting producers.

(29)

4. Situation of the Community industry

Two importers and the importers’ association contested
the duration of the packing season indicated in recital 79
the
the provisional Regulation. They argued that
of
packing season in Spain lasts only three months
instead of four to five as indicated in the provisional
Regulation. However
this allegation is linked to the
crop (variable by nature) and to the quantity produced
and in any case has no impact on the injury factors as
analysed by the Commission services.

(30)

In the absence of any other substantiated information or
argument concerning the situation of the Community
industry, recitals 63 to 86 of the provisional Regulation
are hereby confirmed.

(31)

(32)

5. Conclusion on injury

Following disclosure of the provisional Regulation, some
importers and some exporting producers claimed, with
reference to recitals 83 to 86 of the provisional Regu­
lation, that data used by the Commission to establish the
injury level was neither correct nor objectively evaluated.
injury-related indicators
They argued that almost all
showed positive trends and that therefore no evidence
of injury can be found.

the

the

fact

that

situation of

In this regard,
it is noted that even if some indicators
the
show small
improvements,
Community industry has to be evaluated as a whole
and in consideration of
safeguard
measures were in place until the end of the investigation
period. This matter was explored at length in recitals 51
to 86 of the provisional Regulation. The deep restruc­
turing process which these measures
allowed for,
resulting in a
reduction in production and
large
capacity, would have under normal circumstances led
in the Community
to a
improvement
producers’
situation,
production,
overall
including
capacity utilisation,
sales, and price/cost differentials.
Instead, volume indicators have remained weak, stocks
have increased substantially and financial
indicators
have continued to be in the red – some even worsening.

significant

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Official Journal of the European Union

L 350/39

it

the material

is considered that

the conclusions
(33) On this basis,
regarding
the
by
Community industry as set out in the provisional Regu­
In the absence of any other
lation are not altered.
are
information or
substantiated
therefore definitively confirmed.

arguments,

suffered

injury

they

canning industry is more than sufficient
the production capacity of the Spanish producers.

to cover all

G. CAUSATION

1. Effect of the dumped imports

(39)

(34)

the volume of

Some parties argued that
the Chinese
imports had been stable since 1982 and that therefore
they could not have caused injury as explained in the
Indeed,
provisional Regulation (see
as
explained above in recital 26,
from China
during the period examined have increased significantly
to the detriment of
the EU industry market share.
Moreover, the argument refers to the trend in imports
that exceed well above the period in question therefore
the argument is rejected.

recital 58).
imports

Producers compete to a certain extent for fresh fruit with
the direct fresh produce consumer market. However, this
link. A clear,
competition does not break the causal
significant reason for the Community industry’s relatively
low production, sales and market share is rather to the
pressure of the massive imports from China at very low
prices. In this situation, and considering that the market
price is dictated by the imports covering more than 70 %
of
the market, which engage in price undercutting,
suppression and depression, it would be uneconomic to
produce more without reasonable expectations for selling
the product at prices allowing for a normal profit.
reasonably
Therefore
provide
the
under
condition that
the market price would not penalise
their economic results.

could
quantities

significantly

industry

Spanish

higher

the

it
the prices of
exporting

is definitively
(35) As mentioned in recital 28 above,
imports
concluded that during the IP,
producers
from the
sampled Chinese
the average Community industry prices by
undercut
ranging from 18,4 % to 35,2 %. The
percentages
revision of
the undercutting margin leaves unaffected
the conclusions on the effect of the dumped imports
set out in recitals 100 and 101 of the provisional Regu­
lation.

2. Exchange rate fluctuations

(36) After the imposition of

the provisional duties some
importers further argued the negative influence of the
exchange rate on the price level. They argued that the
exchange rate level is the main factor that caused injury.
Nevertheless, the Commission’s assessment refers merely
to a difference between price levels with no requirement
to analyse the factors affecting the level of those prices.
As a consequence a clear causal link between the high
dumping level and the injury suffered by the Community
industry was found and therefore recital 95 of the provi­
sional Regulation can be confirmed.

a

(40) Another fact confirming this analysis is the consistent
existence of
stocks by
significant
Community producers, underlining that the Community
industry’s injurious situation occurred not because of
insufficient production, but due to production that
cannot be sold due to the pressure of Chinese imports.

amount of

(41) As an agricultural product, the price of the raw material
is subject to seasonal fluctuations due to its agricultural
nature. Nevertheless,
in the five-year period analysed,
which included harvests with lower and higher prices,
the Commission observes that injury (e.g.
in the form
losses) occurs irrespectively of these fluc­
of
tuations and therefore the economic results of
the
Community industry are not directly correlated to such
seasonal fluctuations.

financial

4. Quality differences

3. Supply and price of raw materials

(37)

Some interested parties argued that injury is not caused
by dumped imports but rather by the scarce supply of
fresh fruit i.e. the raw material for canned mandarins.

(42)

(38) However, official data from the Spanish Ministry for
Agriculture confirm that the quantity available for the

the

than

quality

the Community

alleged consumer preference

Some parties claimed that the Chinese product was of a
higher
production.
However, any price differences resulting therefrom were
not sufficiently substantiated, and there is no evidence
that
for Chinese
products would be so intense as to be the cause of the
deteriorated situation for the Community industry. In any
case such alleged price differences would favour the
Chinese product, increasing the undercutting/underselling
level. In the absence of any further new and substantiated
information or argument, recital 99 of the provisional
Regulation is hereby confirmed.

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(43)

(44)

(45)

5. Cost increases

Some parties argued that extraordinary cost increases by
some producers were at the root of the injury. These
allegations were not
substantiated. The
Commission analysis did not detect any such events
which could reverse the assessment of causation or
affect the calculation of the injury elimination level.

sufficiently

Some parties submitted comments on the increased costs
of production and inability of the Community industry
to reduce them. Certain cost items (such as energy) have
increased, but their impact is not such as to break the
causal link in a context where a very significant amount
of dumped Chinese exports are depressing sales and
Community
production
industry’s unit costs) and suppressing and depressing
Community industry prices.

increasing

(thereby

the

6. Aid schemes

It was alleged that the EC aid schemes caused artificial
growth of processing in the EC and then encouraged
reduced levels of raw material supply for the product
concerned. This allegation was of a general nature and
was not sufficiently substantiated.
the
schemes in question were modified in 1996 when the
aid was allowed to the farmers instead than to the
processors of the product concerned. The Commission’s
analysis has not detected any residual effects during the
investigation period which could break the causal
link.
Regarding supply, reference is made to recitals 40 and 41
above.

In any event,

lation (EC) No 1295/2007 of 5 November 2007 making
imports of certain prepared or preserved citrus fruits
(namely mandarins, etc.) originating in the People’s
Republic of China subject to registration (‘Registration
Regulation’) (1). This was done with a view to the
possible retroactive imposition of anti-dumping duties.
Consequently and exceptionally, developments after the
IP have also been analysed. Eurostat data confirms that
imports from China remain significant and this has been
corroborated by certain importers. The volume for the
last 10 months after the IP reached a level of 74 000
tonnes at stable low prices.

2. Ability of Community producers to supply the

Community market

(49) A number of parties commented on the low level of the
Spanish production, which they claimed is unable to fully
supply the community market. While it is correct to state
that in the present situation the Community industry
it should be
does not supply the overall EU market,
noted that this fact is linked to the effect of injurious
imports, as explained above. In any event, the intended
effect of the measures is not to close the Community
market to Chinese imports, but to remove the effects
inter alia, the existence of
of injurious dumping. Given,
only two sources of supply of
is
these products,
considered that
in the event definitive measures are
imposed, Chinese products would continue to enjoy a
significant demand in the Community.

it

3. Interest of the Community industry and suppliers

7. Conclusion on causation

(46)

In the absence of any further new and substantiated
the
information or arguments, recitals 87 to 101 of
provisional Regulation are hereby confirmed.

(47)

In the light of the above, the provisional finding of the
existence of a causal
injury
suffered by the Community industry and the dumped
Chinese imports is confirmed.

link between the material

H. COMMUNITY INTEREST

1. Developments after the investigation period

(50) One importers’ association alleged that any anti-dumping
measures without any limitation of quantities would not
help protect the Spanish industry but would automa­
tically trigger
an
argument which rather points to the need for the insti­
tutions to ensure proper monitoring of the enforcement
of measures, rather than against the benefit measures
could have for Community producers.

trading activities. This

illegal

is

(51) Another

importer

imposition of

anti-
argued that
dumping measures would not improve the situation of
the Spanish producers, due to the existence of
large
stocks built by the importers in the EU, which would
be able to satisfy the market demand in the nearest
future. The size of the stocks and the phenomenon of
stockpiling were supported by another importer. These
comments confirm the Commission analysis in the pro­
visional Regulation and elsewhere in this Regulation.
However,
it is recalled that measures are intended to
provide relief from injurious dumping over a period of
five years — not only one.

(48) As from 9 November 2007 imports from the PRC were
subject to registration pursuant to the Commission Regu­

(1) OJ L 288, 6.11.2007, p. 22.

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Official Journal of the European Union

L 350/41

(52)

In the absence of any other new and substantiated infor­
mation or argument in this respect, the conclusion made
in recitals 103 to 106 and 115 of the provisional Regu­
lation regarding the interest of the Community industry
are hereby confirmed.

conclusions made in recitals 109 to 112 of the provi­
sional Regulation are hereby confirmed.

4. Interest of unrelated importers/traders in the

Community

(53)

in
interest
Cooperating importers expressed a general
the product
maintaining two sources of
supply of
concerned, namely Spain and China,
to
in order
maintain the security of supply at competitive prices.

(54) Nevertheless the majority of the importers, should defi­
nitive measures be imposed, would prefer a measure
which contains also quantitative elements. This is not
considered adequate, as explained below in recital 68.

(55) Data from the sampled cooperating importers were
verified and confirmed that
the canned mandarins
sector represents less than 6 % of their total turnover
and that they achieved, on average, a level of profitability
exceeding 10 % during both the investigation period and
the period of 2004-2008.

(58)

(59)

(56)

The foregoing underlines that, on balance, the potential
impact of measures on importers/traders would not be
disproportional
emanating
therefrom.

positive

effects

the

to

6. Interest of consumers

suggested that

the
Contrary to what was claimed by one importer,
interest of consumers was taken into consideration at
the provisional stage. The Commission’s findings were
outlined in recitals 113 and 114 of the provisional Regu­
lation. Other parties
the impact on
consumers would be significant. However, no infor­
mation was provided that could cast doubt on the
findings in the aforementioned recitals. Even if duties
were to lead to an increase in consumer prices, no
party has disputed the fact that this product is a very
small part of household food expenditure. Therefore in
the absence of any comments from consumers and of
any further new and substantiated information these
recitals are confirmed.

7. Conclusion on Community interest

The additional analysis above concerning the interests at
stake has not altered the provisional conclusions in this
respect. Data of the sampled cooperating importers were
verified and confirmed that the canned mandarins sector
represents for them less than 6 % of their total turnover
and that they achieved, in average terms a comfortable
result during both the investigation period and the period
of 2004-2008 examined, so the impact of the measures
on importers will be minimal. It has been also ascer­
tained that the financial
impact on the final consumer
would be negligible, considering that marginal quantities
per capita are bought in the consumer countries. It is
considered
the
Community interest as set out in the provisional Regu­
lation have not changed. In the absence of any other
comments, these conclusions set out in the provisional
Regulation are therefore definitively confirmed.

conclusions

regarding

that

the

5. Interest of users/retailers

(57) One user, representing less than 1 % of consumption,
submitted generic comments on the reduced availability
of mandarins in the EU and on the superior quality of
the Chinese product. He was invited to further cooperate
providing individual data but declined and did not
substantiate his allegations. Another retailer, a member
of the main importer’s association, generally opposed a
price increase. No other
submission concerning the
interest of users/retailers was received in the course of
the investigation. In this situation and in absence of any
the
substantiated

from users/retailers,

comments

I. DEFINITIVE MEASURES

1. Injury elimination level

level was used and accepted for
achieved

(60) One importer claimed that the profit margin at the level
6,8 % used as reference at the provisional stage is over­
In this respect it should be noted that the
estimated.
safeguard
same
the
the
by
measures
in the period 1998/99 to
industry
Community
It
2001/02.
the Community
refers
producers
trading situation before the
in a normal
increase in imports which led to injury in the industry.
The argument is therefore rejected.

to profits of

actual

profit

as

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Official Journal of the European Union

30.12.2008

(61)

Community producers claimed that provisional duties did
not take into account the peculiar situation of the canned
mandarins market, where the production is concentrated
in only one country and the vast majority of sales and of
imports are concentrated in another European country.
For that it was requested that final calculations take into
account the transport cost from the producer country to
the consumer country. The claim was
justified and
warranted and calculations were adapted accordingly to
reflect the concentration of sales in the relevant areas of
the Community.

and in accordance with Article 9(4) of the basic Regu­
lation, a definitive anti-dumping duty should be imposed
at the level of the lowest of the dumping and injury
margins found, in accordance with the lesser duty rule.
In this case, the duty rate should accordingly be set at the
level of the injury found.

(66) On the basis of the above and in line with the corri­
gendum published in the Official Journal L 258 (1) the
definitive duty should amount as follows:

(62) One party made comments on the undercutting and
underselling calculation. Where warranted adjustments
were made at definitive stage.

— Yichang Rosen Foods Co., Ltd, Yichang, Zhejiang

531,2 EUR/tonne,

(63)

The resulting injury margins, taking into account, when
warranted, the requests from interested parties, expressed
as a percentage of the total cif import value of each
than dumping
sampled Chinese exporter were less
margins found, as follows:

— Yichang Rosen Foods Co., Ltd, Yichang, Zhejiang

100,1 %,

— Huangyan No 1 Canned Food Factory, Huangyan,

Zhejiang 48,4 %,

— Zhejiang Xinshiji Food Co., Ltd, and related producer
Hubei Xinshji Foods Co., Ltd, Sanmen 92,0 %,

— Cooperating exporting producers not included in the

sample 90,6 %.

— Huangyan No 1 Canned Food Factory Huangyan,

Zhejiang, 361,4 EUR/tonne,

— Zhejiang Xinshiji Foods Co., Ltd, Sanmen, Zhejiang
and its related producer HubeiXinshiji Foods Co., Ltd,
Dangyang City, Hubei Province 490,7 EUR/tonne,

— Cooperating exporting producers not included in the

sample 499,6 EUR/tonne.

All other companies 531,2 EUR/tonne.

4. Form of the measures

(67) A number of parties requested measures which combined
price and quantity elements, whereby for an initial
import volume no duty or a reduced duty would be
paid. In certain cases, this was linked to a license system.

All other companies 100,1 %.

(68)

2. Retroactivity

(64) As specified in recital 4, on 9 November 2007 the
the product concerned
Commission made imports of
to registration on the
originating in the PRC subject
basis of a request by the Community industry. This
request has been withdrawn and therefore the matter
has not been further examined.

3. Definitive measures

these amounts are, normally,

This option was considered but rejected for, in particular,
the following reasons. Anti-dumping duties are imposed
because the export price is lower than the normal value.
The amounts exported to the Community are relevant for
the analysis whether dumped imports cause injury.
However,
for
the level of the duty that should be imposed. In other
words, if it is found that dumped imports cause injury,
the dumping may be offset by a duty which applies as of
the first shipment imported after the entry into force of
the duty. Finally, to the extent that it would be found
that
that during a
certain period, products may be imported without
imposing anti-dumping duties, Article 11(4) of
the
basic Regulation allows for suspension under certain
conditions.

is in the Community’s interest

irrelevant

it

(65)

In view of
dumping,

the conclusions reached with regard to
injury, causation and Community interest,

(1) OJ L 258, 26.9.2008, p. 74.

30.12.2008

EN

Official Journal of the European Union

L 350/43

(69)

Some parties have alleged that any form of measures
without a quantitative limitation will
lead to duty
avoidance. Parties made reference again to the stockpiling
which occurred in the wake of the enlargement of the
European Union on 1 May 2004. The Commission
services’ analysis has confirmed that
this was a clear
attempt to avoid the duties. Given these statements and
the facts described in the provisional Regulation in
recitals 123 and 125,
the Commission will monitor
developments in order to take the necessary actions to
ensure proper enforcement of measures.

(70) Other parties have argued that measures should exclude
volumes already subject to existing sales contracts. This
would in practice amount to an exemption of duties
of
which would
measures, and is therefore rejected. Reference is also
made to recitals 51 and 52 above.

undermine

remedial

effect

the

(71)

The provisional Regulation imposed an anti-dumping
duty in the form of a specific duty for each company
resulting from the application of the injury elimination
margin to the export prices used in the calculation of the
dumping during the IP. This methodology is confirmed
at the level of definitive measures.

5. Undertakings

(72) At a late stage in the investigation several exporting
producers in the PRC offered price undertakings. These
were not considered to be acceptable given the significant
price volatility of this product, the risk of duty avoidance
and circumvention for this product (see recitals 124 and
125 of the provisional Regulation), and the fact that, no
guarantees were contained in the offers on the part of the
Chinese authorities to allow for adequate monitoring in a
context of companies not having been granted market
economy treatment.

J. DEFINITIVE COLLECTION OF THE PROVISIONAL
DUTY

(73)

the

level of

In view of the magnitude of the dumping margin found
and given the
injury caused to the
Community industry, it is considered necessary that the
amounts secured by way of provisional anti-dumping
duty imposed by the provisional Regulation should be
definitively collected to the extent of the amount of pro­
visional duties imposed. As for the exporting producers
for whom the definitive duty is slightly higher than the
provisional duty, amounts provisionally secured should
be collected at the level determined in the provisional
Regulation,
the
basic Regulation,

in accordance with Article 10(3) of

HAS ADOPTED THIS REGULATION:

Article 1

A definitive anti-dumping duty is hereby imposed on
1.
imports of prepared or preserved mandarins
(including
tangerines and satsumas), clementines, wilkings and other
similar citrus hybrids, not containing added spirit, whether or
not containing added sugar or other sweetening matter, and as
defined under CN heading 2008, originating in the People’s
falling within CN codes 2008 30 55,
Republic of China,
codes
and
2008 30 75
2008 30 90 61,
2008 30 90 65,
2008 30 90 67, 2008 30 90 69).

ex 2008 30 90
2008 30 90 63,

(TARIC

2.
The amount of the definitive anti-dumping duty applicable
for products described in paragraph 1 produced by the
companies below shall be as follows:

Company

EUR/tonne
net product
weight

TARIC
additional
code

Yichang Rosen Foods Co., Ltd, Yichang,
Zhejiang

531,2

A886

Huangyan No 1 Canned Food Factory,
Huangyan, Zhejiang

361,4

A887

Zhejiang Xinshiji Foods Co., Ltd, Sanmen,
Zhejiang and its related producer Hubei
Xinshiji Foods Co., Ltd, Dangyang City,
Hubei Province

490,7

A888

exporting

Cooperating
not
included in the sample as set out in the
Annex

producers

499,6

A889

All other companies

531,2

A999

Article 2

1.
In cases where goods have been damaged before entry
into free circulation and, therefore, the price actually paid or
payable is apportioned for the determination of the customs
to Article 145 of Commission Regulation
value pursuant
(EEC) No 2454/93 (1)
the amount of anti-dumping duty,
calculated on the basis of Article 1 above, shall be reduced
by a percentage which corresponds to the apportioning of the
price actually paid or payable.

Unless otherwise

2.
concerning customs duties shall apply.

specified,

the provisions

in force

(1) OJ L 253, 11.10.1993, p. 1.

L 350/44

EN

Official Journal of the European Union

30.12.2008

Article 3

1.
Amounts secured by way of the provisional anti-dumping
duty pursuant to Regulation (EC) No 642/2008 shall be defini­
tively collected at the rate of the provisional duty.

Dongda Foodstuff Co., Ltd, Ningbo, Zhejiang and Toyoshima
Share Yidu Foods Co., Ltd, Yidu, Hubei, the amounts secured in
excess of
the provisional duty applicable to cooperating
producers not included to the sample shall be released.

2.
For the cooperating exporting producers that were erro­
neously not listed under the Annex of cooperating exporting
producers to Regulation (EC) No 642/2008, namely Ningbo
Pointer Canned Foods Co., Ltd, Xiangshan, Ningbo, Ninghai

Article 4

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, 18 December 2008.

For the Council
The President

M. BARNIER

30.12.2008

EN

Official Journal of the European Union

L 350/45

Cooperating exporting producers not included in the sample (TARIC additional code A889)

ANNEX

Hunan Pointer Foods Co., Ltd, Yongzhou, Hunan

Ningbo Pointer Canned Foods Co., Ltd, Xiangshan, Ningbo

Yichang Jiayuan Foodstuffs Co., Ltd, Yichang, Hubei

Ninghai Dongda Foodstuff Co., Ltd, Ningbo, Zhejiang

Huangyan No 2 Canned Food Factory, Huangyan, Zhejiang

Zhejiang Xinchang Best Foods Co., Ltd, Xinchang, Zhejiang

Toyoshima Share Yidu Foods Co., Ltd, Yidu, Hubei

Guangxi Guiguo Food Co., Ltd, Guilin, Guangxi

Zhejiang Juda Industry Co., Ltd, Quzhou, Zhejiang

Zhejiang Iceman Group Co., Ltd, Jinhua, Zhejiang

Ningbo Guosheng Foods Co., Ltd, Ninghai

Yi Chang Yin He Food Co., Ltd, Yidu, Hubei

Yongzhou Quanhui Canned Food Co., Ltd, Yongzhou, Hunan

Ningbo Orient Jiuzhou Food Trade & Industry Co., Ltd, Yinzhou, Ningbo

Guangxi Guilin Huangguan Food Co., Ltd, Guilin, Guangxi

Ningbo Wuzhouxing Group Co., Ltd, Mingzhou, Ningbo