Proposal for a Council Regulation imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain aluminium foil originating in Armenia, Brazil and the People's Republic of China
Date: 2009-09-04
Institutions: European Commission
Subjects: China, aluminium, anti-dumping legislation, anti-dumping measure, countervailing charge, dumping, export refund, import, originating product

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 4.9.2009 
COM(2009) 450 final 

Proposal for a 

COUNCIL REGULATION 

imposing a definitive anti-dumping duty and collecting definitively the provisional duty 
imposed on imports of certain aluminium foil originating in Armenia, Brazil and the 
People's Republic of China 

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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')  in  the  proceeding 
concerning imports of certain aluminium foil originating in Armenia, Brazil and the 
People's Republic of China. 

•  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 

Provisional measures are in force and were imposed by Commission Regulation (EC) 
No  287/2009  imposing  a  provisional  anti-dumping  duty  on  imports  of  certain 
aluminium foil originating in Armenia, Brazil and 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  proceeding  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 contain provisions for 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 

On  12  July  2008  the  Commission  initiated  an  anti-dumping  proceeding  concerning 
imports  of  certain  aluminium  foil  originating  in  Armenia,  Brazil  and  the  People's 
Republic of China. 

The  Commission  imposed  provisional  anti-dumping  duties  on  these  imports  by 
Regulation (EC) No 287/2009. 

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The attached proposal for a Council Regulation is based on the definitive findings on 
dumping, injury, causation and Community interest. The provisional findings were in 
general  confirmed,  whereas  some  changes  were  made  to  the  calculation  of  the 
dumping margins and the injury margins and consequently the duties. 

It is therefore proposed that the Council adopt the attached proposal for a Regulation 
which should be published no later than 7 October 2009. 

•  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 for the following reasons: 

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 for the following reason: 

Other means would not be adequate because the basic Regulation does not provide 
for alternative options. 

4. 

BUDGETARY IMPLICATION 

The proposal has no implication for the Community budget. 

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Proposal for a 

COUNCIL REGULATION 

imposing a definitive anti-dumping duty and collecting definitively the provisional duty 
imposed on imports of certain aluminium foil originating in Armenia, Brazil and 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 Article 9 thereof, 

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

Whereas: 

1. 

1.1. 

(1) 

(2) 

(3) 

1.2. 

(4) 

(5) 

PROCEDURE 

Provisional measures 
The  Commission,  by  Regulation  (EC)  No  287/20092  (the  'provisional  Regulation') 
imposed  a  provisional  anti-dumping  duty  on  imports  of  certain  aluminium  foil 
originating in Armenia, Brazil and the People's Republic of China. 

The  proceeding  was  initiated  following  a  complaint  lodged  by  Eurométaux  (the 
complainant) on behalf of producers representing a major proportion, in this case more 
than 25%, of the total Community production of aluminium foil. 

As set out in recital (13) of the provisional Regulation, the investigation of dumping 
and injury covered the period from 1 July 2007 to 30 June 2008 ('investigation period' 
or 'IP'). The examination of the trends for the assessment of injury covered the period 
from 1 January 2005 to the end of the investigation period ('period considered'). 

Subsequent procedure 

Subsequent to the disclosure of the essential facts and considerations on  the  basis of 
which  it  was  decided  to  impose  provisional  anti-dumping  measures  ('provisional 
disclosure'),  several  interested  parties  made  written  submissions  making  known  their 
views  on  the  provisional  findings.  The  parties  who  so  requested  were  granted  an 
opportunity to be heard.  

After  the  imposition  of  the  provisional  anti-dumping  measures,  the  Commission 
continued  its  investigation  with  regard  to  dumping,  injury  and  Community  interest 
aspects and carried out further analyses and verification visits of data contained in the 
questionnaire  replies  provided  by  some  exporting  producers  and  producers  in  the 
Community. 

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OJ L 56, 6.3.1996, p. 1.  
OJ L 94, 8.4.2009, p. 17. 

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(6) 

Five  additional  verification  visits  were  carried  out  at  the  premises  of  the  following 
Community producers: 

–  Novelis UK Limited, Bridgnorth, United Kingdom 

–  Novelis Luxembourg, Dudelange, Grand Duché de Luxembourg 

–  Novelis Foil France S.A.S., Rugles, France 

–  Grupa Kety S.A., Kety, Poland 

–  Hydro Aluminium Inasa , S.A., Irurtzun, Spain 

(7) 

(8) 

One additional visit was carried out at the premises of the following company related 
to exporting producers: 

–  Alcoa Transformación de Productos, S.L., Alicante, Spain 

Three  additional  visits  were  carried  out  at  the  premises  of  the  following  exporting 
producers: 

– 

– 

– 

Alcoa (Shanghai) Aluminium Products Co., Ltd., Shanghai and Alcoa (Bohai) 
Aluminium Industries Co., Ltd., Hebei ("Alcoa") 

Shandong Loften Aluminium Foil Co., Ltd., Shandong ("Shandong") 

Zhenjiang  Dinsheng  Aluminium  Industries  Joint-Stock  Limited  Company, 
Jiangsu ("Zhenjiang") 

(9) 

A visit was also carried out at the Shanghai Futures Exchange, Shanghai. 

(10)  All  parties  were  informed  of  the  essential  facts  and  considerations  on  the  basis  of 
which  it  was  intended  to  recommend  the  imposition  of  definitive  anti-dumping 
measures on imports of certain aluminium foil originating in Armenia, Brazil and the 
People's  Republic  of  China  and  the  definitive  collection  of  the  amounts  secured  by 
way of the provisional duty. They were also granted a period within which they could 
make representations subsequent to this disclosure. 

(11)  The  oral  and  written  comments  submitted  by  the  interested  parties  were  considered 

and, where appropriate, the findings have been modified accordingly.  

1.3. 

Scope of the investigation 

(12)  The Brazilian exporting producer argued that Russia should have been included in the 
scope  of  the  investigation  since,  during  the  entire  period  considered  (i.e.  from  2005 
until the end of the IP) import volumes and market shares from Russia were significant 
and  even  higher  than  the  ones  from  Armenia.  Furthermore,  the  Brazilian  exporting 
producer alleged that import prices from Russia were at the same level as the prices of 
imports  of  the  countries  concerned  and  that  there  was  prima  facie  evidence  of 
dumping at the time of the initiation.  

(13)  When analysing the complaint, the Commission came to the conclusion that there was 
no  sufficient  prima  facie  evidence  of  dumping  with  regard  to  Russia.  Consequently, 
the non-inclusion of Russia in the complaint was considered warranted. In the absence 
of evidence of dumping, it is irrelevant whether import volumes and/or market shares 
of  imports  originating  in  Russia  were  indeed  higher  than  the  ones  of  one  or  more 
countries  included  in  the  scope  of  the  investigation.  The  claim  of  the  Brazilian 
exporting producer was therefore rejected. 

2. 

PRODUCT CONCERNED AND LIKE PRODUCT 

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(14)  The  downstream  industry  in  the  Community,  i.e.  the  'rewinders',  reiterated  that  the 
product  concerned  should  also  include  consumer  rolls,  i.e.  aluminium  foil  weighing 
less  than  10  kg,  because  if  definitive  measures  were  imposed  solely  on  imports  of 
aluminium foil weighing over 10 kg ('jumbo reels'), this could give rise to an increase 
of  exports  of  consumer  rolls  from  the  countries  concerned  at  low  prices.  It  was  also 
argued that both products have basically the same characteristics, the only difference 
being the packaging.  

(15) 

In recitals (15) to (19) of the provisional Regulation it was concluded that consumer 
rolls  and  jumbo  reels  are  different  products  in  terms  of  physical  characteristics  and 
basic  end-uses.  The  subsequent  investigation  confirmed  these  findings.  Indeed,  the 
physical  differences  between  consumer  rolls  and  jumbo  reels  go  beyond  the  mere 
difference  in  packaging,  as  the  product  concerned  has  to  be  rewound  before  being 
repacked and resold to the final customer. It was also established that customers, sales 
channels  and  basic  applications  are  different.  It  was  therefore  not  considered 
appropriate to include consumer rolls in the product scope of the present investigation.  

(16)  As far as the allegation is concerned that imports of jumbo reels may be substituted by 

imports of consumer rolls, this is addressed below in recitals (97) to (99). 

(17) 

In the absence of any other comments concerning the product concerned and the like 
product, the findings as set out in recitals (14) to (21) of the provisional Regulation are 
hereby confirmed.  

3. 

MARKET ECONOMY TREATMENT (MET) AND ANALOGUE COUNTRY 

3.1. 

Armenia 

(18)  The sole exporting producer in Armenia contested the provisional findings as set out 

in recitals (24) to (31) of the Provisional Regulation. 

(19)  The company first stated that the Commission erred in considering that a company in 
Armenia  would  need  to  apply  for  MET,  as  in  their  opinion  Armenia  was  a  market 
economy country under the terms of the WTO Anti-Dumping Agreement and that the 
inclusion  of  Armenia  in  the  footnote  to  Article  2(7)(a)  of  the  basic  anti-dumping 
Regulation should be removed. 

(20)  However  as  set  out  in  recital  (25)  of  the  provisional  Regulation,  Armenia  is 
specifically  mentioned  in  the  footnote  to  Article  2(7)(a)  of  the  basic  Regulation  as 
being  included  among  non-market  economy  countries.  The  treatment  of  exporting 
producers  in  non-market  economy  countries  which  are  WTO  members  is  set  out  in 
Article  2(7)(b).  These  provisions  have  been  fully  complied  with  in  the  current 
investigation. This argument was therefore again dismissed. 

(21)  The  company  then  stated  that  it  met  the  second  MET  criterion,  which  was 
provisionally found to be not met in recitals (27) to (29) of the provisional Regulation. 
The  company  based  its  argument  on  the  submission  of  the  accounts  for  2007  which 
had not been provided during the verification visit of the company prior to provisional 
measures  being  imposed.  The  company  again  stated  that  it  did  not  believe  that  the 
second criterion demanded that the accounts of the company be prepared in line with 
international  accounting  standards  and  that  Armenian  national  accounting  standards 
were sufficient, as Armenia is a member of the WTO. 

(22)  This argument was rejected. The company is obliged to have one clear set of accounts 
in line with international accounting standards. The failures noted by the auditors for 
both  the  2006  and  2007  financial  years  were  such  as  to  clearly  show  that  their 

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accounts  were  not  prepared  in  line  with  IAS  and  therefore  the  company  could  not 
prove  that  criterion  2  was  met.  The  MET  criteria  actually  point  to  international 
standards and WTO membership does not change this. Furthermore WTO membership 
in  itself  is  not  a  guarantee  of  the  prevalence  of  market  conditions  in  the  economic 
activity of one company. 

(23)  The  company  then  further  stated  that  it  met  the  third  MET  criterion,  which  was 
provisionally found not to be met in recital (30) of the provisional Regulation based on 
issues  relating  to  the  sale  of  shares  by  the  Armenian  State  and  also  the  grant  of  the 
land  for  free  to  the  company  by  the  State.  The  company  stated  that  the  issue  of  the 
land  being  given  to  the  company  for  free  was  not  significant  and  should  not  be 
cumulated with the other issue regarding shares, which the company also considers not 
significant. 

(24)  This  argument  was  also  rejected.  The  fact  itself  that  the  land  was  obtained  for  zero 
cost,  and  can  be  sold  with  the  payment  of  its  cadastral  value  to  the  State  (which  is 
significantly lower than its market value) makes that land an important and valuable 
asset for the company which does not appear in the company's accounts and therefore 
has a significant effect on the company's costs. Also, the company failed to prove that 
the distortion caused by the sale of shares at a lower price than their nominal one was 
insignificant.  

(25) 

It can therefore be concluded that the two issues concerning compliance with Criterion 
3 point to a distortion carried over from a non-market economy situation. 

(26)  The finding that this company should be denied MET is confirmed. 

3.2. 

The PRC 

(27)  One  exporting  producer  in  the  PRC  contested  the  provisional  findings  as  set  out  in 
recital (32) of the provisional Regulation. They reiterated that the Commission should 
not have compared the price as quoted by the Shanghai Futures Exchange (SHFE) and 
the London Metal Exchange (LME) by taking both on a VAT-exclusive basis and that 
without this adjustment the prices would be similar during the investigation period. 

(28)  This argument was rejected for the reasons as set out in recital (38) of the provisional 
Regulation as the price should be compared on a like-for-like basis. Chinese producers 
of the product concerned pay VAT on their purchases of primary aluminium. Most of 
this  VAT  is  then  reclaimed  on  the  sale  of  the  finished  product,  whether  sold 
domestically (in which case all is reclaimable) or for export (in which case the Chinese 
government  restricts  the  reclaim  of  VAT  at  certain  rates  for  certain  goods  at  certain 
times). The inclusion of a small amount of non-reclaimable VAT is not such as to have 
a substantial effect on the above conclusions. 

(29) 

It should also be noted that  the  significant  difference in price between the LME and 
the SHFE during the IP shows the state interference in the price setting mechanism for 
primary  aluminium,  a  finding  of  the  Provisional  Regulation  (recital  (32))  which  was 
confirmed following the Commission services' visit to the Shanghai Futures Exchange 
(SHFE).  

(30)  This visit confirmed that the State has a primary role in the price setting on the SHFE 
and interferes in the price setting mechanisms, in particular given its position as both a 
seller  of primary aluminium and a  purchaser via the State Reserve Bureau and other 
State  bodies.  In  addition  the  State  sets  daily  price  limits  via  the  rules  of  the  SHFE 
which  have  been  approved  by  the  state  Regulator,  the  China  Securities  Regulatory 

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Commission (CSRC). It is also clear that the SHFE is a closed exchange for Chinese-
registered  companies  and  Chinese  citizens  and  that  there  is  no  effective  arbitrage 
between the SHFE and the international exchanges outside China. This is evidenced in 
the  price  significant  differences  between  the  SHFE  and  the  international  exchanges 
such  as  the  LME.  Furthermore  where  a  SHFE  futures  contract  ends  in  physical 
delivery,  this  can  only  take  place  in  an  approved  warehouse  within  the  PRC,  unlike 
international exchanges where delivery can take place worldwide. These delivery rules 
ensure that the domestic Chinese market remains insulated from the worldwide market 
and that the price distortion benefits only Chinese companies. 

(31)  The provisional findings as set out in recitals (22) to (40) are therefore confirmed. 

3.3. 

(32) 

The PRC and Armenia: Individual treatment (IT) 

In the absence of comments the provisional findings as regards the exporting producer 
in Armenia as set out in recital (42) of the provisional Regulation are confirmed. 

(33)  One exporting producer in China contested the provisional finding as set out in recital 
(42) of the Provisional Regulation that they should be denied IT. This denial was due 
to the company being majority State owned. The company stated that this should be 
reversed  as  the  State  ownership  was  through  a  company  quoted  on  the  Hong  Kong 
Stock Exchange and there were no State officials on the Board of Directors. 

(34)  These  arguments  were  rejected.  The  company  is  majority  State  owned  and  therefore 
the  Board  of  Directors,  which  runs  the  company,  is  answerable  to  the  ultimate 
shareholder  -  the  State.  The  company  was  also  unable  to  prove,  and  provided  no 
evidence  to  show,  that  the  State  could  not  interfere  in  the  business  decisions  of  the 
company through the decisions of their Board of Directors. 

(35)  The  provisional  findings  as  set  out  in  recitals  (41)  and  (42)  of  the  provisional 

3.4. 

(36) 

4. 

4.1. 

(37) 

regulation are therefore confirmed. 

Analogue country 

In the absence of comments, the provisional findings that Turkey is an appropriate and 
reasonable  analogue  country,  as  set  out  in  recitals  (43)  to  (52)  of  the  provisional 
Regulation are confirmed. 

DUMPING 

Brazil 

In the absence of comments, the provisional findings as set out in recitals (53) to (68) 
of the provisional Regulation are confirmed. 

4.2. 

Armenia  

(38)  The  sole  exporting  producer  from  Armenia  contested  the  provisional  findings  as  set 
out  in  recitals  (69)  to  (77)  of  the  provisional  Regulation.  The  company  stated  that 
deductions  made  under  Article  2(9)  of  the  basic  Regulation  for  selling,  general  and 
administrative ("SG&A") expenses and a reasonable amount of profit for sales through 
related companies were not justified. 

(39)  On  examination,  it  was  found  that  certain  sales  were  not  made  through  related 
importers in the Community. In these circumstances, adjustments under Article 2(9) of 
the basic regulation were not warranted and the calculations were revised accordingly.  

4.3. 

PRC 

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(40) 

In the absence of comments the provisional findings as set out in recitals (78) to (82) 
of the provisional regulation are confirmed. 

(41)  For calculation of the residual dumping margin for China the provisional methodology 
as  set  out  in  recital  (83)  of  the  provisional  regulation  was  modified,  such  that  the 
margin was calculated based on a weighted average of (i) the overall dumping margin 
calculated for the company to whom no MET and IT was granted, and (ii) the highest 
dumped  transaction  of  that  company  applied  to  the  export  prices  found  in  Comext 
(being  representative  of  the  non-cooperating  Chinese  exporters).  On  this  basis  the 
country-wide  level  of  dumping  was  established  at  47.0 %  of  the  CIF  Community 
frontier price, duty unpaid. 

4.4. 

Definitive dumping margins 

Country 

Company 

Definitive dumping 
margin 

Brazil 

Companhia Brasileira de Aluminio 

27.6 % 

All other companies 

27.6 % 

PRC 

Alcoa Bohai and Alcoa Shanghai 

25.6 % 

Shandong Loften 

Zhenjiang Dingsheng  

All other companies 

Armenia 

RUSAL Armenal 

All other companies 

5. 

INJURY 

33.7 % 

37.4 % 

47.0 % 

33.4 % 

33.4 % 

5.1. 

Community production and definition of the Community industry 

(42)  As mentioned in recital (87) of the provisional Regulation, the complaint was lodged 
by  Eurométaux  on  behalf  of  four  Community  producers  which  cooperated  in  the 
investigation.  One  further  producer  supported  the  complaint  and  one  producer 
opposed.  The  five  producers  that  were  complainants  or  supported  the  complaint  are 
therefore  deemed  to  constitute  the  Community  Industry  (CI)  within  the  meaning  of 
Articles 4(1) and 5(4) of the basic Regulation. 

(43) 

In  the  absence  of  any  comments  concerning  the  production  and  definition  of  the 
Community  industry,  recitals  (86)  to  (87)  of  the  provisional  Regulation  are  hereby 
confirmed.  

5.2. 

Community consumption 

(44)  The  Armenian  exporting  producer  contested  the  determination  of  the  Community 
consumption by claiming that sales of the CI on the captive market should have been 
taken  into  consideration.  The  same  company  also  claimed  that  the  estimated  data 
included  in  the  complaint  were  not  a  reliable  basis  to  establish  consumption  in  the 
Community and made reference to an Independent Market Study. 

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(45)  As far as the alleged captive use is concerned, it was found that there was only a very 
limited volume destined for the captive market during the IP. This concerned only one 
Community  producer  for  sales  during  the  first  year  of  the  period  considered.  It  was 
therefore considered that this had only a negligible, if any, impact at all on the overall 
situation. 

(46)  As far as the determination of the total Community consumption is concerned it was 
considered  that  the  methodology  used  at  provisional  stage  was  reasonable  and  has 
given  a  fairly  complete  picture  of  the  actual  situation.  The  Armenian  exporting 
producer  did  not  explain  in  what  way  the  methodology  used  by  the  Community 
Institutions was not reasonable and would as a consequence lead to unreliable results. 
The  study  quoted  by  the  Armenian  Exporting  producer  was  not  found  to  be  directly 
relevant as it referred to different types of aluminium foil and included data for non-
EU companies which could not be verified. Furthermore, the provisional findings for 
the  total  Community  consumption  included  in  Table  1  under  recital  (90)  of  the 
provisional Regulation were confirmed by other interested parties, including importers 
unrelated to the CI.  

(47)  On the basis of the above, it was concluded that the total Community consumption as 
established in the provisional Regulation gives a reliable picture of the actual situation. 

(48) 

In  the  absence  of  any  other  comments  concerning  Community  consumption,  recitals 
(88) to (90) of the provisional Regulation are hereby confirmed. 

5.3. 

Cumulative assessment of the effects of the imports concerned 

(49)  Subsequent  to  the  provisional  disclosure  the  Brazilian  exporting  producer  reiterated 
that  the  product  originating  in  Brazil  meets  higher  quality  standards,  such  as  a 
minimum tensile strength and elongation requirements allowing for a wider range of 
applications and sales to a wider range of customers compared to the product exported 
by  the  other  two  countries  concerned.  Thus,  it  was  alleged  that  there  were  different 
market segments for aluminium foil depending on the quality of the product and that 
only  the  Brazilian  product  meets  the  standards  to  be  sold  in  the  high  end  market  of 
branded products. 

(50)  The Brazilian exporter also reiterated that sales channels and distribution methods for 
its products were different. In particular, it was argued that the Brazilian exports were 
mainly  made  via  traders  while  the  Armenian  and  Chinese  exporting  producers  sell 
directly  to  the  rewinders  in  the  Community.  It  was  also  claimed  that  the  Brazilian 
exporter has long standing and stable business relationships with specific customers in 
the Community, while the exporters from Armenia and China have only just recently 
entered the Community market. 

(51)  Finally,  the  same  exporting  producer  argued  that  trends  concerning  import  volumes 
and  market  shares  were  different  from  those  of  the  other  exporting  countries  which 
would show that the conditions of competition were indeed different.  

(52)  With regard to the first allegation, i.e. difference in quality standards, the investigation 
revealed that despite quality differences, the aluminium foil market was mainly price 
driven  and  quality  differences  played  only  a  minor  role  in  the  choice  of  a  supplier. 
These  findings  were  confirmed  by  the  co-operating  importers  and  users  concerned. 
Thus,  the  unsubstantiated  allegation  of  the Brazilian  exporting  producer,  i.e.  that  the 
aluminium  foil  market  was  divided  into  several  segments  according  to  quality 
differences of the product could not be confirmed during the present investigation and 
the claim made in this regard had to be rejected.  

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(53)  As far as the alleged different sales channels and distribution methods are concerned, 
it  is  noted  that  the  Brazilian  exporting  producer  does  not  contest  that  it  sold  its 
products both, via an unrelated trader and directly to rewinders in the Community. On 
this  basis,  it  was  considered  that  sales  channels  were  the  same.  The  fact  that  the 
Brazilian exporter would have built up long standing business relations during the past 
years  does  not  preclude  as  such  those  products  being  under  the  same  conditions  of 
competition  with  products  of  competitors  newly  entering  a  market.  Indeed,  the 
exporting producer did not claim or show that its customers would not switch to other 
suppliers  should  they  consider  it  suitable.  Therefore,  the  fact,  that  the  Brazilian 
exporter has a long presence on the Community market does not allow the conclusion 
that its products are in different conditions of competition than the products imported 
from Armenia and China. The claim made in this regard was consequently rejected.  

(54)  Finally,  regarding  different  import  trends,  the  Brazilian  exporting  producer  did  not 
submit any additional information or evidence and the provisional findings as set out 
in recital (93) are thus hereby confirmed.  

(55)  Subsequent to the provisional disclosure the Armenian exporting producer argued that 
Armenian imports should be decumulated for the purpose of the injury analysis given 
the low import volumes, its low market share and the flat import trends as well as the 
allegedly  significant  quality  differences  between  the  product  exported  from  Armenia 
and the ones exported from Brazil and the PRC.  

(56)  This  claim  could  not  be  accepted  because  it  was  found  that  all  conditions  for 

cumulation as set out in Article 3(4) of the basic Regulation were met: 

– 

– 

As provisionally established and as confirmed above in recitals (38) to (39), the 
dumping margin established for Armenia was above the de minimis threshold 
as defined in Article 9(3) of the basic Regulation. 

The volume of imports from Armenia was not negligible in the sense of Article 
5(7) of the basic Regulation, i.e. its market shares attained 5.26 % as outlined 
in  recital  (96)  (table  4)  of  the  provisional  Regulation.  It  was  also  found  that 
imports  from  Armenia  grew  significantly  as  from  2006  to  the  end  of  the  IP 
despite  the  re-entry  of  imports  from  China  and  the  significant  imports  from 
Brazil during the period considered.  

–  With  regard  to  the  conditions  of  competition  between  the  imported  products 
from  the  countries  concerned  and  in  particular  with  regard  to  the  arguments 
made  in  relation  to  significant  quality  differences  between  the  products 
imported, as set out above in recital (52) above, it was found that the products 
from  Armenia  have  similar  basic  physical  and  technical  characteristics  and 
were used in the same basic applications regardless of their specific quality. It 
is also noted that this exporting producer stated its intention to shift production 
to  even  higher  quality  converter  foils  which  indicates  that  the  argument 
concerning the allegedly bad quality of products produced may be exaggerated. 

(57)  The  claims  made  in  this  regard  by  the  Armenian  exporting  producer  were  therefore 

rejected.  

(58) 

In the absence of any other comments made in relation to the cumulative assessment 
of  the  effects  of  the  imports  concerned  in  accordance  with  Article  3(4)  of  the  basic 
Regulation,  the  provisional  conclusions  as  set  out  in  recitals  (91)  to  (94)  of  the 
provisional Regulation are herewith confirmed. 

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5.4. 

Imports from the countries concerned 

5.4.1.  Volume and market share of the countries concerned 

(59) 

In  the  absence  of  any  comments  with  regard  to  the  imports  from  the  countries 
concerned,  the  findings  as  set  out  in  recitals  (95)  and  (96)  of  the  provisional 
Regulation are herewith confirmed.  

5.4.2.  Prices 

(60) 

In the absence of any comments with regard to the prices of the imports concerned, the 
findings as set out in recital (97) of the provisional Regulation are herewith confirmed. 

5.4.3.  Price undercutting 

(61)  The  exporting  producer  in  Brazil  contested  the  methodology  used  to  calculate  the 
undercutting  margin  applicable  to  it.  In  this  regard,  the  exporting  producer  claimed 
that  the  calculation  of  the  undercutting  margins  was  not  made  on  the  same  level  of 
trade.  Thus,  it  was  claimed  that  export  sales  from  Brazil  were  mainly  made  to  an 
unrelated importer which resells the product to rewinders whereas the CI’s sales were 
made directly to the rewinders. Therefore, it was claimed that SG&A and profit of the 
trader should have been added to the export price. The investigation has revealed that 
contrary to what was alleged by the Brazilian exporting producer, exports sales were 
not mainly made to an unrelated importer as over 70% of its exports sales were made 
directly to the rewinders. Likewise, the investigation has revealed that the CI sold the 
product concerned predominantly to rewinders, albeit some sales were made to traders. 
Therefore, and to ensure that the comparison was nevertheless made on the same level 
of trade, it was decided to exclude sales made to the trader, and base the calculation of 
the price undercutting solely on direct sales to rewinders. Since these sales represented 
more  than  70%  of  the  exporting  producer's  total  sales  to  the  Community,  this  was 
considered as representative.  

(62)  Another argument put forward by the same exporting producer in Brazil was that an 
adjustment taking into consideration quality differences between the imported product 
and the CI product should have been made. However, the investigation clearly showed 
that  the  issue  of  quality  is  not  a  determining  factor,  as  the  end  user  choice  is  more 
determined  by  the  price  and  not  by  eventual  differences  in  quality  (e.g.  thickness  of 
the foil).  

(63)  On  the  basis  of  the  above,  the  weighted  average  price  undercutting,  expressed  as  a 
percentage of the CI's sales prices to independent customers on an ex-works level, was 
9.6% for Brazil.  

(64) 

In the absence of any other comments with regard to the undercutting, the findings as 
set out in recitals (98) to (100) of the provisional Regulation are herewith confirmed. 

5.5. 

Situation of the Community industry 

(65)  As  mentioned  in  recital  (42),  the  injury  factors  were  determined  on  the  basis  of  the 
verified  information  of  five  Community  producers.  A  sixth  Community  producer 
submitted  a  questionnaire  reply  after  the  provisional  determination  which  could, 
however, not be verified anymore and was therefore not taken into consideration in the 
definitive  determination.  Following  the  completion  of  all  on-spot  verification  visits, 
some of the injury factors had to be revised on the basis of the evidence found in the 
visited companies. Therefore, in accordance with Article 3(5) of the basic Regulation, 
the examination of the impact of the dumped imports on the CI and the evaluation of 

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all  economic  factors  having  a  bearing  on  the  state  of  the  CI  during  the  period 
considered had to be revised accordingly. 

5.5.1.  Production, capacity and capacity utilisation 

Table 1: Production, capacity and capacity utilisation 

Production in tonnes  

Production (index) 

Production capacity 
in tonnes  

Production capacity 
(index) 

Capacity utilisation 

Capacity utilisation 
(index) 

2005 

50 952 

100 

2006 

48 467 

95 

2007 

IP 

40 071 

32 754 

79 

64 

59 400 

59 400 

59 400 

59 400 

100 

86% 

100 

100 

81% 

94 

100 

67% 

79 

100 

55% 

64 

(66)  As it can be seen from the above, production volume from the CI still showed a clearly 
negative trend between 2005 and the IP. As far as the overall production capacity is 
concerned,  the  definitive  findings  confirmed  the  decrease  of  the  capacity  utilisation 
during the period considered. 

5.5.2.  Sales volume, market shares, growth and average unit price in the EC 

(67)  The  table  below  shows  the  CI  performance  in  relation  to  its  sales  to  independent 

customers in the Community. 

Table  2:  Sales  volume,  market  share,  prices  and  average  unit  prices  in  the 

Community  

(68)  As provisionally established, while Community consumption increased by 4% during the period consi

2005 

2006 

2007 

IP 

(69)  Thus, as far as the CI performance in relation to its sales to independent customers in the Community 

45 191 

37 207 

30 310 

43 661 

Sales volume (tonnes) 

5.5.3.  Stocks 

Sales volume (index) 

100 

104 

85 

70 

(70)  The figures below represent the volume of stocks at the end of each period. 

48% 

53% 

34% 

33% 

Market Share  

Unit  prices 
tonne 

in  EUR/ 

2 566 

3 045 

3 219 

3 068 

Unit prices (index) 

100 

119 

125 

120 

Stocks in tonnes  

Stocks (index) 

2005 

1 789 

100 

2006 

1 711 

96 

2007 

2 148 

120 

IP 

2 355 

132 

Table 
3: 
Stocks  

(71)  As mentioned in recital (107) of the provisional Regulation, the investigation revealed 
that stocks cannot be considered as a meaningful injury factor since the vast majority 
of production is made in response to orders. Therefore, the trends on stocks are given 
for  information.  Although  the  definitive  findings  now  show  a  significant  increase  of 

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the stock levels of 32%, this was found to be due to a spot light stock by one company 
and therefore not representative of any trend. 

5.5.4. 

Investments and ability to raise capital 

Table 4: Investments  

(72) 

Investment of the CI decreased significantly; i.e. the trend established in the provisional Regulation in
Investments (EUR) 

are 

1 355 430 

3 998 397 

7 090 015 

807 899 

2005 

2006 

2007 

IP 

Investments (index) 

100 

11 

19 

56 

therefore herewith confirmed. 

5.5.5.  Profitability, return on investment and cash flow 

Table 5: Profitability, return on investment and cash flow  

(73)  The table above shows that the profitability of the CI has slightly improved during the period consi

2006 

2007 

2005 

IP 

Profitability on EC 
sales 

Return on total 
investments  

Cash Flow 

-2.8% 

-2.6% 

0.2% 

-0.1%  

-43,7% 

-439,1% 

19,3% 

-1.3% 

2% 

1% 

4% 

5% 

significant  decrease  of  the  CI's  production  volume  and  sales  volume.  This  indicates 
that the CI, faced with dumped imports, has lost sales volumes and market shares in an 
effort  to  eliminate  losses. In  conclusion,  despite  the CI achieving  marginal  profits in 
2007  it  again  made  small  losses  in  the  IP,  and  therefore,  the  CI  can  be  regarded  as 
having suffered material injury. The revised findings on profitability did not alter the 
provisional conclusions in this respect and the definitive findings do not detract from 
the conclusion that overall profitability remained very low, if not negative despite the 
fact that consumption increased substantially in 2007 and during the IP. 

(74)  The return on investment was recalculated on the basis of the verified data from the CI 
using  the  same  methodology  as  described  in  recital  (110)  of  the  provisional 
Regulation. As a result, this indicator was found to be positive in the year 2007, thus 
reflecting the small profit made by the CI during the same period. 

(75)  As far as cash flow is concerned, the definitive findings were likewise revised on the 
basis of the verified data from the CI. This indicator confirms that the CI has tried to 
respond to the surge of dumped imports from the countries concerned by maintaining 
sales prices at the highest possible levels to the detriment of sales volumes and market 
shares.  

5.5.6.  Employment, Productivity and Wages 

Table 6: Employment, Productivity and Wages  

Number of employees  

Number of employees 
(Index) 

2005 

482 

2006 

460 

2007 

386 

100 

95 

80 

IP 

343 

71 

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(76)

Employment cost  

13 618 746 

13 031 854 

10 882 109 

9 642 041 

After revisi

Employment cost 
(Index) 

Average labour costs 

Average labour costs 
(Index) 

Productivity 
(Ton/employee) 

Productivity (Index) 

100 

96 

80 

71 

28 226 

28 359 

28 195 

28 122 

100 

106 

100 

100 

105 

100 

100 

104 

98 

100 

96 

90 

(112) of the provisional Regulation are therefore herewith confirmed. 

5.5.7.  Magnitude of the dumping margin 

(77) 

In the absence of any comments received with regard to the above, the findings as set 
out in recital (113) of the provisional Regulation are herewith confirmed. 

5.5.8.  Recovery from past dumping 

(78) 

In the absence of any comments received with regard to the above, the findings as set 
out in recital (114) of the provisional Regulation are herewith confirmed. 

5.5.9.  Growth 

(79) 

5.6. 

(80) 

In the absence of any comments received with regard to the above, the findings as set 
out in recital (115) of the provisional Regulation are herewith confirmed 

Conclusion on injury 

In  the  absence  of  any  other  comments  concerning  the  situation  of  the  Community 
industry,  the  conclusion  in  recitals  (116)  to  (118)  of  the  provisional  Regulation,  that 
the Community industry has suffered material injury, is hereby confirmed. 

6. 

CAUSATION 

6.1. 

Effects of the dumped imports  

(81)  The  Armenian  exporting  producer  claimed  that  the  market  share  of  the  Armenian 
imports during the period considered was on average not enough as to cause the injury 
suffered by the Community industry. One of the exporting producers in China claimed 
that imports from China did not cause any injury because the CI's profitability showed 
an increasing trend in parallel to an increase in imports from China. 

(82)  As mentioned in recitals (91) to (94) of the provisional Regulation and as confirmed 
above  in  recitals  (49)  to  (58),  the  conditions  for  the  cumulation  of  imports  from  all 
countries under investigation in order to assess the impact of the dumped imports on 
the  situation  of  the  Community  industry  in  accordance  of  Article  3(4)  of  the  Basic 
Regulation  were  met.  Consequently,  an  individual-country  analysis  of  the  imports 
from the countries concerned was considered inappropriate and the above claims had 
to be rejected. 

(83)  As far as the development of the CI profitability is concerned, the revised figures did 
not dramatically change the injury picture as a whole. The CI saw its losses decrease 
between 2005 and 2006 while in 2007 the industry was marginally profitable (0.2%). 
This profit level decreased in the IP and turned into a small loss of - 0.1%.  

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(84) 

It is also recalled that as concluded in recital (121) of the provisional Regulation and 
recital  (73)  above,  the  deterioration  of  the  CI  mainly  translated  into  a  significant 
decrease of the CI's production volume and sales volume. This indicates that the CI, 
faced  with  dumped  imports,  lost  sales  volumes  and  market  share  in  an  effort  to 
eliminate  losses.  In  conclusion,  despite  the  CI  achieving  small  profits  in  2007,  it  is 
confirmed  that  the  CI  has  suffered  material  injury  as  the  revised  findings  on 
profitability showed losses in the IP. Since the deterioration of the situation of the CI 
coincided with the increase in imports from the countries concerned, the conclusions 
set out in recital (123) of the provisional Regulation are herewith confirmed. 

(85) 

It  is  therefore  concluded  that  the  pressure  exerted  by  the  dumped  imports,  which 
significantly  increased  their  volume  and  market  share  from  2006  onwards  played  a 
determining role in the injury suffered by the Community industry. The above claims 
are therefore rejected. 

6.2. 

Effects of other factors 

6.2.1. 

Imports originating in third countries other than the PRC, Armenia and Brazil 

(86) 

In  the  absence  of  any  comments  concerning  imports  originating  in  third  countries 
other than the countries concerned, the conclusions reached in recitals (124) to (126) 
of the provisional Regulation are hereby confirmed.  

6.2.2.  Exports by the Community industry 

(87) 

In  the  absence  of  any  comments  concerning  the  export  performance  of  the  CI,  the 
conclusions  reached  in  recitals  (127)  and  (128)  of  the  provisional  Regulation  are 
hereby confirmed. 

6.2.3. 

Imports by the Community industry 

(88)  One  exporting  producer,  by  referring  to  certain  market  information,  claimed  that  the 
volume  imported  by  one  of  the  Community  producers  from  its  related  Chinese 
company was significant. 

(89)  However,  these  allegations  could  not  be  confirmed  since  the  verified  figures  of  the 
relevant  Chinese  exporting  producer  and  its  related  Community  importer  have 
confirmed  the  provisional  conclusions  reflected  in  recital  (129)  of  the  provisional 
Regulation.  

6.2.4.  Self-inflicted injury 

(90)  Some  interested  parties  reiterated  that  the  Community  producers  would  be  more 
interested  in  the  more  lucrative  Aluminium  Converter  Foil  ('ACF')  market.  It  was 
claimed that ACF and the product concerned (also called Aluminium Household Foil) 
are produced on the same production lines and a switch between products is therefore 
relatively easy. Therefore, the decrease of the CI's production volume of the product 
concerned  is  due  to  the  increase  of  the  ACF  production  by  the  CI  rather  than  the 
increase of imports from the countries concerned. It was argued  that to the contrary, 
the increase of imports from the countries concerned was due to the insufficient supply 
of the CI on the Community market caused by the increased production of ACF. The 
findings  in  recital  (132)  of  the  provisional  Regulation  were  criticised  as  they  were 
based on the figures related to only one Community ACF producer. 

(91)  The investigation has confirmed that the production volumes of ACF of the CI did not 
increase  significantly.  In  fact,  the  further  investigation  has  shown  that  none  of  the 
complainant and supporting Community producers has shifted a significant part of its 

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total production volume to AFC and therefore, the allegations made in this regard had 
to  be  rejected.  On  this  basis  it  could  not  be  concluded  that  substantial  production 
capacities  were  indeed  shifted  from  the  product  concerned  to  ACF.  In  fact,  different 
types of foils can be produced by the same rolling machines and therefore, it can also 
be concluded that should the profitability of the product concerned be restored under 
conditions of fair trade, more capacity may be made available by the CI to produce the 
product concerned. This thus confirms the provisional conclusions reflected in recital 
(132) of the provisional Regulation.  

6.2.5.  Development of consumption in the Community market 

(92) 

In the absence  of  any comments  concerning  consumption  in the Community market, 
the conclusions  reached  in recitals (133) and (134) of the  provisional  Regulation are 
hereby confirmed. 

6.2.6.  Development of the CI's cost 

(93)  One  exporting  producer  claimed  that  the  CI  had  been  able  to  increase  its  profit 
margins  despite  the  increase  in  the  costs  of  raw  materials,  which  contradicts  the 
provisional conclusion reflected in recital (136) of the provisional Regulation, i.e. that 
the CI could not increase its sales prices at the same pace as the increase in the costs 
for raw materials. This claim had to be rejected. Firstly, even though the investigation 
finally  revealed  a  slight  improvement  in  the  profitability  for  2007,  profit  growth  did 
not  follow  the  same  trend  as  the  increased  Community  consumption.  Secondly,  the 
increase  in  costs  when  passed  on  to  customers  resulted  in  significant  loss  of  sales 
volumes  and  market  share,  given  the  existence  of  dumped  imports  on  the  market 
which undercut the prices of the CI. The investigation also revealed that the decrease 
in  production  volume  was  linked  to  a  surge  of  dumped  imports  whilst  production 
capacities  remained  stable.  As  a  result,  production  costs  were  allocated  to  lower 
production volumes, which increased the unit costs.  

6.3. 

(94) 

7. 

7.1. 

(95) 

7.2. 

(96) 

Conclusion on causation 

In the absence of other comments in this respect, the conclusions in recitals (137) and 
(138) of the provisional Regulation are hereby confirmed. 

COMMUNITY INTEREST 

Interest of the Community industry  

In  the  absence  of  any  comments  concerning  the  interest  of  the  Community  industry, 
the  conclusions  in  recitals  (142)  to  (145)  of  the  provisional  Regulation  are  hereby 
confirmed. 

Interest of importers 

In the absence of any comments concerning the interest of the importers, the findings 
set out in recitals (146) to (149) of the provisional Regulation are hereby confirmed. 

7.3. 

Interest of users 

(97)  The  rewinders,  which  are  the  main  users  of  the  product  concerned  in  the  European 
Community,  represented  by  the  Aluminium  Foil  Association  (hereafter  'EAFA') 
claimed that: 

– 

Contrary  to  the  provisional  findings  in  recital  (153)  of  the  provisional 
Regulation, the cost of transport of consumer reels from China would represent 
only  a  small  percentage  of  the  value  of  the  goods  (approximately  1%  of  the 

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– 

– 

– 

sales price) and there would be almost no difference with the transport cost of 
the product concerned (approximately 0,2% of the sales price).  

The  large  product  mix  offered  by  Community  rewinders  would  not  be  an 
advantage  as  retailers  would  also  be  able  to  source  the  product  concerned  in 
large quantities through separate contracts from importers/traders of consumer 
reels. 

Contrary  to  the  provisional  findings  in  recital  (154)  of  the  provisional 
Regulation,  the  production  of  ACF  would  remain  the  priority  of  the 
Community producers which are not interested in the production of the product 
concerned. In the event that definitive measures would be imposed, the supply 
of the product concerned in the Community would not be sufficient to meet the 
rewinders' needs. 

Contrary  to  the  provisional  findings  in  recital  (163)  of  the  provisional 
Regulation,  definitive  measures,  if  any,  should  also  apply  on  products 
weighing less than 10 kg. Otherwise, these measures would lead to a surge of 
dumped  imports  of  consumer  reels,  especially  from  China,  with  severe 
negative consequences for the Community rewinders, leading to a loss of 4 000 
jobs in the Community. This view was supported by exporting producers from 
two countries concerned. 

(98)  The  evidence  submitted  with  regard  to  transport  costs  was  considered  reliable  and 
could therefore be accepted. However, the risk that imports of the product concerned 
may be substituted by imports of the downstream product on its own is not considered 
as  a  reason  not  to  impose  anti-dumping  measures.  Indeed,  no  evidence  has  been 
presented  or  obtained  to  the  effect  that  such  imports  would  increase  in  significant 
quantities  and  at  prices  undercutting  those  from  the  rewinders  in  the  Community. 
Unfair trading practices of exporting producers of the downstream product would have 
to  be  examined  separately  on  the  basis  of  sufficient  prima  face  evidence.  It  is 
furthermore  considered  that  a  switch  to  the  downstream  products  in  China  in  larger 
quantities  would  very  likely  take  some  time  as  it  would  require  new  investments  in 
machinery  and  the  establishment  of  new  sales  channels.  Therefore  any  effects  will 
only be felt in the medium term. As far as the number jobs in the downstream industry 
in  the  Community  are  concerned,  this  claim  was  not  substantiated.  The  figures 
reported  would  therefore  not  be  regarded  as  reliable.  On  this  basis,  the  provisional 
conclusions  laid  down  in  recitals  (153)  to  (162)  of  the  provisional  Regulation  are 
herewith confirmed.  

(99) 

In  the  absence  of  any  other  comments  with  regard  to  the  Community  interest,  the 
findings  set  out  in  recitals  (150)  to  (163)  of  the  provisional  Regulation  are  hereby 
confirmed. 

8. 

DEFINITIVE ANTI-DUMPING MEASURES 

8.1. 

Injury elimination level 

(100)  One  exporting  producer  claimed  that  the  calculation  of  the  injury  elimination  level 
should be based on the cost of production rather than the selling price of the product 
concerned. The same exporter claimed that the target profit used to calculate the injury 
elimination level was too high and should have been 1% which would be more in line 
with  the  current  market  circumstances,  in  particular  the  economic  downturn. 
Furthermore,  this  exporting  producer  reiterated  that  adjustments  should  have  been 

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made  for  differences  in  quality  between  the  product  exported  and  the  one  produced 
and sold by the CI on the Community market.  

(101)  As  far  as  the  first  claim  is  concerned,  i.e.  the  injury  elimination  level  should  be 
established  on  the  basis  of  the  cost  of  production,  it  is  noted  that  using  such 
methodology  does  not  have  any  impact  on  the  results  and  was  therefore  considered 
irrelevant. Regarding the level of the target profit, as mentioned in recital (165) of the 
provisional Regulation a very conservative pre-tax profit margin for producers of 5% 
was  used.  This  was  also  proposed  in  the  complaint  and  used  in  the  previous 
investigation.  However,  the  proposed  target  profit  was  not  at  a  level  which  would 
allow the CI to maintain production capacities and new investments and had therefore 
to  be  rejected.  Concerning  the  claim  regarding  the  quality  of  the  product,  and  as 
already outlined above in recitals (52) it was found that all product types have similar 
basic  physical  and  technical  characteristics  and  were  used  in  the  same  basic 
applications  regardless  of  their  specific  quality.  In  the  absence  of  any  evidence 
supporting these allegations the provisional conclusions laid down in recitals (164) to 
(166) of the provisional Regulation are herewith confirmed. 

(102)  Another  exporting  producer  argued  that  the  injury  elimination  level  should  aim  to 
establish sales prices that offset an actual loss. This had to be rejected, since the injury 
elimination  level  is  the  price  level  which  the  Community  industry  could  reasonably 
achieve in the absence of dumped imports.  

(103)  The same exporting producer argued further that the target profit should be set at the 
level of the actual profit realised at the beginning of the period considered, in this case 
a loss. On this basis, the underselling margin would be de minimis.  

(104)  This  argument  had  to  be  rejected  on  the  ground  that  the  CI  was  still  affected  by  a 
previous  situation  of  dumping  from  Russia  and  China  as  well  as  dumped  imports 
originating from Brazil. Therefore, it was considered that a profit margin of 5% would 
be the profit margin that could reasonably be achieved by an industry of this type in 
the sector under normal conditions of competition. 

(105)  As mentioned above in recital (61), in order to ensure a comparison on the same level 
of trade, sales of the exporting producer in Brazil to its unrelated trader were excluded 
when  calculating  the  price  undercutting  and  consequently  also  the  injury  elimination 
level.  

(106)  In the absence of any other comments concerning the injury elimination level, recitals 

(164) to (166) of the provisional Regulation are hereby confirmed. 

(107)  The definitive countrywide injury margin for China was calculated on the basis of the 
weighted average of (i) the injury margin of a company in China to whom MET and 
IT  were  refused  and  (ii)  the  highest  injury  margin  of  that  company  applied  to  the 
export  prices  taken  from  Eurostat  data  (being  representative  of  the  non-cooperating 
Chinese  exporters).  On  this  basis  the  countrywide  injury  margin  was  established  at 
30.0% of the CIF Community frontier price, duty unpaid. 

8.2. 

Definitive measures 

(108)  In  the  light  of  the  foregoing  and  in  accordance  with  Article  9(4)  of  the  basic 
Regulation, a definitive anti-dumping duty should be imposed at the level sufficient to 
eliminate  the  injury  caused  by  the  dumped  imports  without  exceeding  the  dumping 
margin found.  

(109)  The following rates of definitive anti-dumping duties are proposed: 

EN 

19 

   EN 

 
Country 

Company 

Definitive 
dumping 
margin 

Definitive 
injury margin 

Definitive 
anti-dumping 
duty 

Brazil 

PRC 

Companhia  Brasileira 
de Aluminio 

27.6 % 

17.6% 

17.6% 

All other companies 

27.6 % 

17.6% 

17.6%  

Alcoa  Bohai 
Alcoa Shanghai 

and 

25.6 % 

6.4% 

6.4% 

Shandong Loften 

33.7 % 

20.3% 

20.3% 

Zhenjiang Dingsheng  

37.4 % 

24.2% 

24.2% 

All other companies 

47.0 % 

30.0% 

30.0% 

Armenia 

RUSAL Armenal 

33.4 % 

13.4% 

13.4% 

All other companies 

33.4 % 

13.4% 

13.4% 

(110)  The  individual  company  anti-dumping  duty  rates  specified  in  this  Regulation  were 
established  on  the  basis  of  the  findings  of  the  present  investigation.  Therefore,  they 
reflect  the  situation  found  during  that  investigation  with  respect  to  these  companies. 
These  duty  rates  (as  opposed  to  the  country-wide  duty  applicable  to  "all  other 
companies") are thus exclusively applicable to imports of products originating in the 
country  concerned  and  produced  by  the  companies  mentioned.  Imported  products 
produced by any other company not specifically mentioned in the operative part of this 
Regulation  with  its  name  and  address,  including  entities  related  to  those  specifically 
mentioned,  cannot  benefit  from  these  rates  and  shall  be  subject  to  the  duty  rate 
applicable to "all other companies". 

(111)  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  Commission3  forthwith 
with all relevant information, in particular any modification in the company's activities 
linked  to  production,  domestic  and  export  sales  associated  with,  for  example,  that 
name  change  or  that  change  in  the  production  and  sales  entities.  If  appropriate,  the 
Regulation  will  then  be  amended  accordingly  by  updating  the  list  of  companies 
benefiting from individual duty rates. 

8.3. 

Definitive collection of provisional duties  

(112)  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, should be definitively collected to the extent of the amount of 
the  definitive  duties  imposed.  Where  the  definitive  duties  are  lower  than  the 
provisional  duties,  amounts  provisionally  secured  in  excess  of  the  definitive  rate  of 
anti-dumping duties shall be released.  

3 

European  Commission,  Directorate-General  for  Trade,  Directorate  H,  Office  N-105  4/92,  1049 
Brussels, Belgium. 

EN 

20 

   EN 

 
 
 
 
 
 
                                                 
8.4. 

Form of the measures 

(113)  In the course of the investigation the sole cooperating exporting producer in Armenia 
and  the  sole  cooperating  exporting  producer  in  Brazil  offered  price  undertakings  in 
accordance with Article 8(1) of the basic Regulation. 

(114)  Both  offers  were  examined.  The  Brazilian  exporter's  offer  eliminates  the  injurious 
effects  of  dumping  and  limits  to  a  sufficient  degree  the  risk  of  circumvention.  In 
regard to the Armenian exporter's offer, given the complex structure of the company 
group  and  its  complex  sales  channels,  a  high  risk  of  cross-compensation  exists  with 
sales of the same product to the same customers but from different origins as well as 
sales of different products to the same customers from different sales companies in the 
same  group.  The  Armenian  exporter  submitted  a  substantially  revised  undertaking 
offer after the deadline set out in Article 8(2) of the basic Regulation. It is noted that in 
addition to the fact that the revised offer was submitted after the deadline, it cannot be 
accepted for the following reason. Although the company offered to sell only directly 
to  the  first  independant  customer  in  the  EU,  i.e.  without  including  its  two  related 
companies in the sales channel, the investigation showed that the company sold other 
products to the same customers in the EU. Moreover, the company announced that it 
planned  to  produce  and  sell  a  new  product  type,  namely  aluminium  converter  foil 
(ACF), to the EU. As it is possible that this new product type could be sold to the same 
customers  in  the  EU,  even  the  revised  offer  cannot  limit  the  risk  of  cross-
compensation to an acceptable degree.  

(115)  By Decision 2009/XXX/EC the Commission has accepted the undertaking offer from 
CBA. The Council recognises that the undertaking offer eliminates the injurious effect 
of  dumping and limits to a sufficient degree the risk of circumvention.  The  offer  from 
Rusal Armenal is rejected for the reasons set out in Recital (114) and also due to the 
problems found with their accounts, as explained in Recitals (21) and (22) above. 

(116)  To further enable the Commission and the customs authorities to effectively monitor 
the  compliance  of  CBA  with  the  undertaking,  when  the  request  for  release  for  free 
circulation  is  presented  to  the  relevant  customs  authority,  exemption  from  the  anti-
dumping  duty  is  to  be  conditional  on  (i)  the  presentation  of  an  undertaking  invoice, 
which  is  a  commercial  invoice  containing  at  least  the  elements  listed  and  the 
declaration stipulated in Annex II; (ii) the fact that imported goods are manufactured, 
shipped  and  invoiced  directly  by  CBA  to  the  first  independent  customer  in  the 
Community  and  (iii)  the  fact  that  the  goods  declared  and  presented  to  the  customs 
authorities correspond exactly with the description on the undertaking invoice. Where 
the above conditions are not met the appropriate anti-dumping duty shall be incurred 
at the time of acceptance of the declaration for release into free circulation. 

(117)  Whenever,  pursuant  to  Article  8(9)  of  the  basic  Regulation,  the  Commission 
withdraws  its  acceptance  of  an  undertaking  following  a  breach  by  referring  to 
particular transactions and declares the relevant undertaking invoices to be invalid, a 
customs debt shall be incurred at the time of acceptance of the declaration for release 
into free circulation of these transactions. 

(118)  Importers should be aware that a customs debt may be incurred, as a normal trade risk, 
at  the  time  of  acceptance  of  the  declaration  for  release  into  free  circulation  as 
described  in  recitals  (116)  and  (117)  even  if  an  undertaking  offered  by  the 
manufacturer from whom they were buying, directly or indirectly, had been accepted 
by the Commission. 

EN 

21 

   EN 

 
(119)  Pursuant  to  Article  14(7)  of  the  basic  Regulation,  customs  authorities  should  inform 
the  Commission  immediately  whenever  indications  of  a  violation  of  the  undertaking 
are found. 

(120)  For the reasons stated above, the undertaking offered by CBA is considered acceptable 
by  the  Commission  and  that  offered  by  Armenal  not  acceptable  and  the  companies 
concerned  have  been  informed  of  the  essential  facts,  considerations  and  obligations 
upon which acceptance and rejection were based. 

(121)  In  the  event  of  a  breach  or  withdrawal  of  the  undertakings,  or  in  the  event  of 
withdrawal  of  acceptance  of  the  undertakings  by  the  Commission,  the  anti-dumping 
duty  which  has  been  imposed  by  the  Council  in  accordance  with  Article  9(4)  shall 
automatically apply by means of Article 8(9) of the basic Regulation. 

9. 

MONITORING 

(122)  In order to minimise the risks of circumvention due to the high difference in the duty 
rates, it is considered that special measures are needed in this case to ensure the proper 
application of the anti-dumping duties. These special measures include the following: 

(123)  The  presentation  to  the  Customs  authorities  of  the  Member  States  of  a  valid 
commercial invoice, which shall conform to the requirements set out in the Annex to 
this Regulation. Imports not accompanied by such an invoice shall be made subject to 
the residual anti-dumping duty applicable to all other exporters. 

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

HAS ADOPTED THIS REGULATION: 

Article 1 

1. 

2. 

A definitive anti-dumping duty is hereby imposed on imports of aluminium foil of a 
thickness of not less than 0,008 mm and not more than 0,018 mm, not backed, not 
further worked than rolled, in rolls of a width not exceeding 650 mm and of a weight 
exceeding 10 kilograms and currently falling within CN code ex 7607 11 19 (TARIC 
code  7607  11  19  10),  originating  in  Armenia,  Brazil  and  the  People's  Republic  of 
China.  

The  rate  of  the  definitive  anti-dumping  duty  applicable  to  the  net,  free-at-
Community-frontier price, before duty, of the products described in paragraph 1 and 
manufactured by the companies below shall be as follows: 

Country 

Company 

Anti-Dumping 
Duty 

TARIC 
Additional Code 

Armenia 

Closed Joint Stock Company 
Rusal-Armenal 

13.4% 

A943 

EN 

22 

   EN 

 
The  People’s  Republic 
of China 

All other companies 

13.4% 

Alcoa 
(Shanghai) 
Aluminium  Products  Co., 
(Bohai) 
Ltd.  and  Alcoa 
Aluminium  Industries  Co., 
Ltd. 

6.4% 

Shandong Loften Aluminium 
Foil Co., Ltd. 

20.3% 

Zhenjiang 
Aluminium Co., Ltd. 

Dingsheng 

24.2% 

All other companies 

30.0% 

Companhia  Brasileira  de 
Aluminio 

17.6% 

All other companies 

17.6% 

A999 

A944 

A945 

A946 

A999 

A947 

A999 

Notwithstanding the first paragraph, the definitive anti-dumping duty shall not apply 
for imports released for free circulation in accordance with Article 2. 

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

The application of the individual duty rates specified for the companies mentioned in 
paragraph 2 shall be conditional upon presentation to the customs authorities of the 
Member  States  of  a  valid  commercial  invoice,  which  shall  conform  to  the 
requirements  set  out  in  Annex  I.  If  no  such  invoice  is  presented,  the  duty  rate 
applicable to all other companies shall apply. 

Article 2 

Imports  declared  for  release  into  free  circulation  which  are  invoiced  by  companies 
from  which  undertakings  are  accepted  by  the  Commission  and  whose  names  are 
listed in  Commission Decision  [2009/…./EC], as amended from time to time,  shall 
be exempt from the anti-dumping duty imposed by Article 1, on condition that: 

– 

– 

– 

they are manufactured, shipped and invoiced directly by the said companies to 
the first independent customer in the Community; and 

such  imports  are  accompanied  by  an  undertaking  invoice  which  is  a 
commercial  invoice  containing  at  least  the  elements  and  the  declaration 
stipulated in Annex II of this Regulation; and 

the goods declared and presented to the customs authorities correspond exactly 
with the description on the undertaking invoice. 

Brazil 

3. 

4. 

5. 

1. 

2. 

A  customs  debt  shall  be  incurred  at  the  time  of  acceptance  of  the  declaration  for 
release into free circulation: 

– 

whenever it is established, in respect of imports described in paragraph 1, that 
one or more of the conditions listed in that paragraph are not fulfilled; or 

EN 

23 

   EN 

 
– 

when the Commission withdraws its acceptance of the undertaking pursuant to 
Article 8(9) of the basic Regulation in a Regulation or Decision which refers to 
particular  transactions  and  declares  the  relevant  undertaking  invoices  to  be 
invalid. 

Article 3 

Amounts  secured  by  way  of  provisional  anti-dumping  duties  pursuant  to  Commission 
Regulation  (EC)  No  287/2009  on  imports  of  aluminium  foil  of  a  thickness  of  not  less  than 
0,008 mm and not more than 0,018 mm, not backed, not further worked than rolled, in rolls of 
a width not exceeding 650 mm and of a weight exceeding 10 kilograms and falling within CN 
code  ex  7607  11  19  (TARIC  code  7607  11  19  10),  originating  in  Armenia,  Brazil  and  the 
People's  Republic  of  China  shall  be  definitively  collected  at  the  rate  of  the  definitive  duty 
imposed  pursuant  to  Article  1  above.  The  amounts  secured  in  excess  of  the  rates  of  the 
definitive anti-dumping duties shall be released.  

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

Article 4 

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

Done at Brussels, […] 

For the Council 
The President 
[…] 

EN 

24 

   EN 

 
 
 
 
Annex I 

A  declaration  signed  by  an  official  of  the  entity  issuing  the  commercial  invoice,  in  the 
following format, must appear on the valid commercial invoice referred to in Article 1(5): 

(1) 

(2) 

The name and function of the official of the entity issuing the commercial invoice.  

The following declaration: “I, the undersigned, certify that the “volume” of aluminium 
foil  sold  for  export  to  the  European  Community  covered  by  this  invoice  was 
manufactured  by  (company  name  and  address)  (TARIC  additional  code)  in  (country 
concerned).  I  declare  that  the  information  provided  in  this  invoice  is  complete  and 
correct.” 

(3) 

Date and signature. 

EN 

25 

   EN 

 
The  following  elements  shall  be  indicated  in  the  commercial  invoice  accompanying  the 
companies' sales to the Community of goods which are subject to the undertaking: 

Annex II 

1. 

2. 

3. 

4. 

5. 

6. 

The  heading  "COMMERCIAL  INVOICE  ACCOMPANYING  GOODS  SUBJECT 
TO AN UNDERTAKING" 

The name of the company issuing the commercial invoice 

The commercial invoice number 

The date of issue of the commercial invoice 

The TARIC additional code under which the goods on the invoice are to be customs-
cleared at the Community frontier 

The exact description of the goods, including: 

– 

– 

– 

– 

– 

the product code number (PCN) used for the purpose of the undertaking 

plain language description of the goods corresponding to the PCN concerned 

the company product code number (CPC) 

Taric code 

quantity (to be given in tonnes) 

7. 

The description of the terms of the sale, including: 

– 

– 

– 

– 

price per tonnes 

the applicable payment terms 

the applicable delivery terms 

total discounts and rebates 

8. 

9. 

Name  of  the  company  acting  as  an  importer  in  the  Community  to  which  the 
commercial invoice accompanying goods subject to an undertaking is issued directly 
by the company 

The name of the official of the company that has issued the commercial invoice and 
the following signed declaration: 

“I, the undersigned, certify that the sale for direct export to the European Community 
of the goods covered  by  this  invoice is being made within the scope  and under the 
terms  of  the  Undertaking  offered  by  [COMPANY],  and  accepted  by  the  European 
Commission  through  [Decision  2008/XXXX/EC].  I  declare  that  the  information 
provided in this invoice is complete and correct.” 

EN 

26 

   EN