Proposal for a COUNCIL IMPLEMENTING REGULATION imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain fatty alcohols and their blends originating in India, Indonesia and Malaysia
Date: 2011-10-14
Institutions: European Commission
Subjects: India, Indonesia, Malaysia, anti-dumping duty, chemical alcohol, import (EU), originating product

EUROPEAN COMMISSION 

Brussels, 14.10.2011 
COM(2011) 644 final 

2011/0277 (NLE) 

Proposal for a 

COUNCIL IMPLEMENTING REGULATION 

imposing a definitive anti-dumping duty and collecting definitively the provisional duty 
imposed on imports of certain fatty alcohols and their blends originating in India, 
Indonesia and Malaysia 

 
 
  
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

Grounds for and objectives of the proposal 

This  proposal  concerns  the  application  of  Council  Regulation  (EC)  No  1225/2009  of  30 
November  2009  on  protection  against  dumped  imports  from  countries  not  members  of  the 
European  Community  ('the  basic  Regulation')  in  the  anti-dumping  proceeding  concerning 
imports of certain fatty alcohols and their blends originating in India, Indonesia and Malaysia. 

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  were  imposed  by  Commission  Regulation  (EU)  No  446/2011  (OJ  L 
122, 11.05.2011, p.47). 

Consistency with other policies and objectives of the Union 

Not applicable. 

2. 

RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND 
IMPACT ASSESSMENTS 

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. 

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3. 

LEGAL ELEMENTS OF THE PROPOSAL 

Summary of the proposed action 

The  attached  proposal  for  a  Council  Regulation  is  based  on  the  definitive  findings  on 
dumping, injury, causation and Union interest. It is therefore proposed that the Council adopt 
the attached proposal for a Regulation which should be published no later than 11 November 
2011. 

Legal basis 

Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped 
imports from countries not members of the European Community. 

Subsidiarity principle 

The proposal falls under the exclusive competence  of the  European Union. 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  Union,  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 Union budget. 

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2011/0277 (NLE) 

Proposal for a 

COUNCIL IMPLEMENTING REGULATION 

imposing a definitive anti-dumping duty and collecting definitively the provisional duty 
imposed on imports of certain fatty alcohols and their blends originating in India, 
Indonesia and Malaysia 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty on the Functioning of the European Union, 

Having regard to Council Regulation (EC) No 1225/2009 of 30 November 2009 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  European  Commission  ('the  Commission') 
after having consulted the Advisory Committee, 

Whereas: 

1. 

(1) 

(2) 

(3) 

A. PROCEDURE 

Provisional measures 

The  Commission,  by  Regulation  (EU)  No  446/20112  ('the  provisional  Regulation') 
imposed a provisional anti-dumping duty on imports of certain fatty alcohols and their 
blends (FOH) originating in India, Indonesia and Malaysia (‘the countries concerned’).  

The  proceeding  was  initiated  by  Notice  of  Initiation  (NOI)  published  on  13  August 
20103 following a complaint lodged on 30 June 2010 by two Union producers, Cognis 
GmbH (Cognis) and Sasol Olefins & Surfactants GmbH (Sasol), (together reffered to 
as ‘the complainants’). These two companies represent a major proportion, in this case 
more than 25 % of total Union production of the product investigated.  

As set out in recital 9 of the provisional Regulation, the investigation of dumping and 
injury covered the period from 1 July 2009 to 30 June 2010 (‘the investigation period’ 
or ‘IP’). The examination of trends relevant for the assessment of injury covered the 
period from 1 January 2007 to the end of the IP (‘period considered’). 

1 
2 
3 

OJ L 343, 22.12.2009, p. 51. 
OJ L 122, 11.5.2011, p. 47. 
OJ C 219, 13.8.2010, p. 12. 

EN 

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2. 

(4) 

(5) 

(6) 

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.  

The Commission continued to seek and verify all information it deemed necessary for 
its definitive findings.  

Subsequently, all parties were informed of the essential facts and considerations on the 
basis  of  which  it  was  intended  to  recommend  the  imposition  of  a  definitive  anti-
dumping duty on imports of certain fatty alcohols and their blends originating in India, 
Indonesia and Malaysia and the definitive collection of the amounts secured by way of 
the provisional duty ('final disclosure'). All parties were granted a period within which 
they could make comments on this final disclosure.  

(7) 

The  oral  and  written  comments  submitted  by  the  interested  parties  were  considered 
and taken into account where appropriate. 

1. 

(8) 

(9) 

(10) 

B. PRODUCT CONCERNED AND LIKE PRODUCT 

Product concerned 

The  product  concerned  is,  as  set  out  in  recitals  (10)  and  (11)  of  the  provisional 
Regulation, saturated fatty alcohols with a carbon chain length of C8, C10, C12, C14, 
C16 or C18 (not including branched isomers) including single saturated fatty alcohols 
(also referred to as ‘single cuts’) and blends predominantly containing a combination 
of carbon chain lengths C6-C8, C6-C10, C8-C10, C10-C12 (commonly categorised as 
C8-C10),  blends  predominantly  containing  a  combination  of  carbon  chain  lengths 
C12-C14,  C12-C16,  C12-C18,  C14-C16  (commonly  categorised  as  C12-C14)  and 
blends  predominantly  containing  a  combination  of  carbon  chain  lengths  C16-C18, 
originating  in  India,  Indonesia,  and  Malaysia,  currently  falling  within  CN  codes  ex 
2905 16 85, 2905 17 00, ex 2905 19 00 and ex 3823 70 00.  

After  the  imposition  of  provisional  measures  certain  parties  complained  about  the 
ambiguity of the definition of the product concerned. They claimed that according to 
the  NOI,  only  linear  FOH  is  included  in  the  product  scope,  thus  excluding  FOH 
containing branched isomers, or branched FOH. Other parties claimed that it does not 
make  sense  to  exclude  FOH  containing  branched  isomers  produced  from  the  oxo 
process because they have the same use and compete with linear FOH in the market.  

It  has  been  established  that  all  types  of  FOH  covered  by  this  investigation,  as 
described in recital (8), despite possible differences in terms of raw material used for 
the production, or variances in the production process, have the same or very similar 
basic  physical,  chemical  and  technical  characteristics  and  are  used  for  the  same 
purposes.  The  possible  variations  in  the  product  concerned  do  not  alter  its  basic 
definition, its characteristics or the perception that various parties have of it. 

(11)  Hence, the provisional decision to exclude FOH containing branched isomers from the 
product scope as mentioned in the NOI and to exclude these companies' production of 

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branched  FOH  from  the  definition  of  the  EU  production  (including  those  companies 
producing  FOH  from  the  oxo  process)  should  be  maintained.  In  the  absence  of  any 
other  comments  regarding  the  product  concerned,  recitals  (10)  and  (11)  of  the 
provisional Regulation are hereby confirmed. 

2. 

Like product 

(12) 

It  is  recalled  that  it  was  provisionally  determined  in  recital  (13)  of  the  provisional 
Regulation that linear FOH and branched FOH are not like products and thus the data 
pertaining to producers producing FOH made of branched isomers should be excluded 
from the injury analysis. 

(13) 

In the absence of any other comments regarding the like product, recitals (12) and (13) 
of the provisional Regulation is hereby confirmed. 

C. DUMPING 

1. 

India 

1.1. 

Normal Value 

(14) 

In  the  absence  of  any  comments  concerning  the  determination  of  normal  value,  the 
provisional  findings  in  recitals  (14)  to  (18)  of  the  provisional  Regulation  are  hereby 
confirmed. 

1.2. 

Export price  

(15) 

In  the  absence  of  any  comments  concerning  the  determination  of  export  price,  the 
provisional findings in recital (19) of the provisional Regulation are hereby confirmed. 

1.3. 

Comparison  

(16)  Following  provisional  and  definitive  disclosures,  both  Indian  exporting  producers 
reiterated their claim that their sales made to one of the original complainants in the 
Union  during  the  IP  should  be  ignored  when  calculating  the  dumping  margin  (see 
recital (22) of the provisional Regulation). The companies based their claim on the fact 
that Article 9.1 of the WTO Anti-Dumping Agreement provides for the amount of the 
duty  to  be  imposed  to  be  the  full  margin  of  dumping  or  less.  The  Indian  exporting 
producers also referred to Article 2.4 of the WTO Anti-Dumping Agreement pursuant 
to  which  a  fair  comparison  shall  be  made  between  the  export  price  and  the  normal 
value.  On  this  basis,  they  alleged  that  the  complainant  had  negotiated  with  them  the 
purchase of very large quantities at very low prices at the same moment when it was 
preparing  the  complaint,  and  that  therefore  the  prices  of  these  transactions  had  not 
been  set  fairly,  and  for  this  reason  such  transactions  should  not  be  included  in  the 
dumping calculations. 

(17)  First  of  all,  it  should  be  noted  that  the fact  that  the  WTO  Anti-Dumping  Agreement 
allows  for  the  possibility  to  impose  a  duty  below  the  full  dumping  margin,  does  not 
create an obligation to do so. Article 9(4) of the basic Regulation merely imposes an 
obligation  to  limit  the  anti-dumping  duty  to  a  level  sufficient  to  remove  the  injury. 
Moreover,  there  was  no  evidence  that  the  prices  had  not  been  freely  negotiated 

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between the parties. An examination of the overall purchases made by the complainant 
in  question  also  showed  that  the  prices  negotiated  by  the  two  Indian  exporting 
producers were in line with the prices agreed for purchases of comparable products by 
the complainant in question from other suppliers. Furthermore, it was established that 
the  complainant  was  importing  from  the  Indian  exporting  producers  the  product 
concerned for a number of years and not only during the IP. Moreover, one exporting 
producer stated in an oral hearing chaired by the hearing officer that their prices to the 
complainant in question were structurally lower than those charged to other customers. 
In conclusion, there is no evidence that the prices had not been set in a fair way only 
because of the fact that the sales were made to a complainant and it is confirmed that 
the claim is rejected.  

(18)  Following  provisional  and  definitive  disclosures,  both  Indian  exporting  producers 
reiterated  their  claim  for  an  adjustment  for  currency  conversion  pursuant  to  Article 
2(10)(j) of the basic Regulation arguing that there was a sustained appreciation of the 
Indian  Rupee  (INR)  against  the  Euro  (EUR)  as  from  November  2009  which  would 
have a distorting effect on the dumping calculations (see recital (23) of the provisional 
Regulation).  Both  exporting  producers  acknowledged  that  their  sale  prices  in  the 
second half of the IP were higher than those in the first half of the IP but they claimed 
that this trend was due exclusively to an increase in the costs of raw materials and to 
the general improvement in the market conditions following the end of the economic 
crisis, and did not reflect the appreciation of the INR against the EUR. Moreover, the 
companies claimed that even if  they were able to adjust their prices regularly and at 
short  intervals,  they  would  never  be  able  to  predict  exactly  the  developments  in  the 
exchange rates for a future period.  

(19)  The  investigation  has  shown  that  even  though  the  INR  appreciated  progressively 
against the EUR during the second half of the IP, for each Indian exporting producer 
its prices for sales of the main products to several main customers actually changed on 
a month to month basis, in particular during the second half of the IP. Therefore, there 
is no indication that prices for sales to the Union could not have been modified at the 
same  time  to  reflect  also  changes  in  currency  exchange  rates  within  60  days  as 
provided for in Article 2(10) (j) of the basic Regulation and Article 2.4.1 of the WTO 
Anti-Dumping  Agreement.  Since,  in  several  cases,  prices  were  changed  frequently, 
any change in exchange rates could also have been reflected. Moreover, this showed 
that  FOH  market  in  general  is  open  to  accept  frequent  changes  in  prices.  Therefore, 
even in cases where prices were changed less frequently, there is no evidence that this 
was not because of the business choice made by the parties. The fact that prices can be 
adapted quickly to reflect modified market situations (in this case, allegedly changes 
in  currency  exchange  rates)  gave  the  Indian  exporting  producers  the  possibility  to 
reflect such changes in their selling prices if they had so wished and apparently done 
in a number of cases. In view of the above, an adjustment for currency conversions is 
not warranted and the claim is rejected.  

(20)  Following  provisional  disclosure,  one  Indian  exporting  producer  claimed  that  an 
allowance  granted  under  Article  2(10)(b)  of  the  basic  Regulation  for  differences  in 
indirect  taxes,  which  had  been  made  in  respect  of  certain  product  types,  should  also 
have been made in respect of products and blends with chain lengths of C12 and C14 
because  the  duty  paid  on  raw  materials  used  for  these  products  was  refunded  upon 
export of the product. However, no information which could be verified on spot was 
submitted  during  the  investigation,  proving  that  indeed  such  duties  had  been 

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subsequently  refunded.  Following  definitve  disclosure,  the  company  claimed  that  its 
comments  had  been  misunderstood  and  that  all  the  raw  materials  used  for  the 
production  of  products  and  blends  with  chain  lengths  of  C12  and  C14  had  been 
imported  duty  free.  Since  an  indirect  tax  needs  to  be  paid  if  these  raw  materials  are 
consequently  incorporated  into  products  sold  on  the  domestic  market,  the  company 
claims an  adjustment  of  the normal value for these specific product types. However, 
the  evidence  submitted  during  the  verification  shows  that  the  specific  raw  materials 
that  are  needed  for  the  production  of  the  product  types  with  chain  lengths  C12  and 
C14  and  that  were  imported  duty  free  during  the  IP,  were  sufficient  to  manufacture 
only  a  fraction  of  the  company's  export  sales  of  this  product  during  the  IP.  It  is 
therefore certain that at least two thirds of the exported product with chain lengths C12 
and C14 have been manufactured by using raw materials for which import duties had 
been paid. Since the company has never submitted any evidence showing that any of 
these raw materials imported duty free was used for export sales to the EU and not for 
export sales to third countries, the claim is rejected. 

(21) 

In the absence of any other comments in respect of comparison, the content of recitals 
(20) and (23) of the provisional Regulation is hereby confirmed. 

1.4. 

Dumping margin  

(22) 

In  the  absence  of  any  comments  concerning  the  dumping  margin  calculation,  the 
content of recitals (24) to (26) of the provisional Regulation is hereby confirmed. 

(23)  The amount of dumping finally determined, expressed as a percentage of the CIF net 

free-at-Union-frontier price, before duty, is as follows: 

Company 

Definitive dumping margin 

Godrej Industries Limited 

VVF Limited 

All other companies 

9,3 % 

4,8 % 

9,3 % 

2. 

Indonesia 

2.1. 

Normal value 

(24)  Following  provisional  and  definitive  disclosures,  one  Indonesian  exporting  producer 
claimed  that  in  testing  the  profitability  of  transactions,  the  selling,  general  and 
administrative  (SG&A)  expenses,  should  not  have  been  allocated  to  individual 
transactions on the basis of turnover, and that this had led to a number of transactions 
being  found  to  be  unprofitable.  The  claim  was  examined,  but  it  was  found  that 
matching SG&A expenses to individual transactions on the basis of turnover is more 
appropriate  given  the  nature  of  such  expenses,  which  are  more  value-related  rather 
than  volume-related.  It  should  be  noted  that  the  total  amount  of  SG&A  expenses 
allocated  to  each  product  type  remains  the  same  irrespective  of  which  of  the  two 
methods is used for matching SG&A expenses to individual transactions. Finally, the 
transactions for which the exporting producer queried the outcome of the profitability 

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test,  were  re-examined  and  it  was  confirmed  that  the  transactions  were  unprofitable. 
The claim is therefore rejected. 

(25)  The  same  Indonesian  exporting  producer  also  claimed  that  in  determining  the  profit 
level used when constructing normal value, the profit of sales identified as not being in 
the ordinary course of trade at product type level should not be excluded, since more 
than 80% of the overall domestic sales were profitable. With regard to this claim, it is 
recalled  that  the  determination  of  which  sales  are  in  the  ordinary  course  of  trade  is 
made  at  the  level  of  product  types,  as  explained  at  recitals  (29)  to  (32)  of  the 
provisional  Regulation,  since  this  is  the  most  appropriate  way  to  accurately  match 
sales  prices  with  the  relating  costs  of  production.  Furthermore,  Article  2(6)  of  the 
basic Regulation does not exclude the division of the product investigated into product 
types  where  appropriate.  Therefore,  sales  not  found  to  be  in  the  ordinary  course  of 
trade are excluded at product type level from the calculation of the profit to be used in 
constructing the normal value. The claim is therefore rejected. 

(26)  The same Indonesian exporting producer also claimed that when constructing normal 
value for certain product types, no deduction for allowances had been made in order to 
bring  the  normal  values  back  to  an  ex-works  level.  The  claim  was  accepted  and  the 
calculation amended accordingly.  

(27) 

In the absence of any other comments concerning the determination of normal value, 
the  provisional  findings  in  recitals  (27)  to  (33)  of  the  provisional  Regulation  – 
corrected as indicated at recital (26) above - are hereby confirmed. 

2.2. 

Export price 

(28)  Following provisional disclosure, one Indonesian exporting producer claimed that no 
justification had been given for considering the price to its related importer company 
in the Union as unreliable, and for the construction of the export price, in respect of 
such sales, under Article 2(9) of the basic Regulation. In this regard, it should be noted 
that  transfer  prices  between  related  parties  are  not  considered  to  be  reliable  because 
they  could  be  artificially  set  at  different  levels  depending  on  what  would  be  more 
advantageous for the related companies concerned. For this reason, the construction of 
the export price under Article 2(9) of the basic Regulation, using a reasonable profit 
margin  independent  of  the  actual  profit  resulting  from  transfer  prices,  avoids  any 
distorting  effects  that  may  arise  from  the  transfer  prices.  The  claim  is  therefore 
rejected. 

(29)  For export sales to the Union through related importers located in the Union, following 
provisional disclosure, both Indonesian exporters claimed that the profit margin used 
for the construction of the export price pursuant to Article 2(9) of the Basic Regulation 
was inappropriate. They both argued that the profit which had been used at provisional 
stage referred to only one partially cooperating importer and had not been verified, and 
was therefore not reliable. Accordingly, they suggested using a profit of 5% as it was 
done  in  other  investigations.  In  consideration  of  the  low  level  of  cooperation  by 
independent importers in this investigation, the claim is accepted and a profit level of 
5% was applied, which is in line with profits levels used in previous investigations for 
the same sector. 

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(30) 

In the absence of any other comments in respect of comparison, the content of recitals 
(34) to (36) of the provisional Regulation – adjusted as explained at recital (29) above 
- is hereby confirmed. 

2.3. 

Comparison 

(31)  Following  provisional  disclosure  both  Indonesian  exporters  pointed  out  that  no 
adjustment should have been made for differences in commissions pursuant to Article 
2(10)(i) for sales via the respective related traders in a third country. Both companies 
argued that their production companies in Indonesia and the respective related traders 
in Singapore form a single economic entity and that the traders in the third country act 
as  the  export  department  of  their  related  Indonesian  companies.  However,  in  both 
cases  domestic  sales,  as  well  as  some  export  sales  to  third  countries,  are  invoiced 
directly  by  the  manufacturer  in  Indonesia,  and  the  traders  in  Singapore  receive  a 
specific  commission.  For  one  of  the  Indonesian  companies  this  commission  is 
mentioned in a contract covering only export sales. Moreover, the traders in the third 
country  also  sell  products  manufactured  by  other  producers,  in  one  case  also  from 
unrelated producers. Both related traders in Singapore therefore clearly have functions 
which are  similar to those of an  agent working on a commission basis. The claim is 
therefore rejected. 

(32)  Following  definitive  disclosure,  the  Indonesian  government  and  one  Indonesian 
exporting  producer  reiterated  the  claim  of  single  economic  entity  referred  to  in  the 
previous recital. They argued that in Matsushita v Council 4 the Court had previously 
held that the fact that the producer performs certain sales functions does not mean that 
a manufacturing company and a trading company cannot constitute a single economic 
entity. Furthermore, they also claimed that sales to third countries that are carried out 
by  the  exporter  directly  without  involving  the  trader  in  Singapore  only  represent  a 
small percentage of export sales and that in the Interpipe judgement5 the Court of First 
Instance  held  that  small  volumes  of  direct  sales  by  the  producer  did  not  support  the 
claim that there was no single economic entity. Finally, they brought forward that in 
Canon v Council6 the fact that a sales subsidiary also acted as a distributor of products 
from other companies did not affect the finding of a single economic entity.  

(33)  Even though in Matsushita v Council the Court held that the institutions were in that 
case  entitled  to  find  that  a  manufacturer,  together  with  one  or  more  distribution 
companies which it controls, forms an economic entity even though it performs certain 
sales  functions  itself,  it  does  not  necessarily  follow  that  there  is  an  obligation  to 
always consider a producer and its related sales companies as a single economic entity. 
Furthermore,  unlike 
in 
the  Indonesian  exporting  producer, 
Matsushita  v  Council  did  not  make  any  direct  sales  itself.  Secondly  in  the  Interpipe 
judgement,  the  fact  that  direct  sales  by  the  exporting  producer  represented  only  a 
limited percentage of the total sales volume to the EU was only one element analysed 

the  manufacturer 

4 

5 

6 

Matsushita  Electric  Industrial  Co.  Ltd  and  Matsushita  Electric  Trading  Co.  Ltd  v  Council  of  the 
European Communities, Case C-175/87, Judgement of the Court of 10 March 1992. 
Interpipe  Nikopolsky  Seamless  Tubes  Plant  Niko  Tube  ZAT  and  Interpipe  Nizhnedneprovsky  Tube 
Rolling  Plant  VAT  v  Council  of  the  European  Union,  Case  T-249/06,  Judgement  of  Court  of  First 
Instance of 10 March 2009. 
Canon  Inc  v  Council  of  the  European  Communities,  Case  C-171/87,  Judgement  of  the  Court  of  10 
March 1992. 

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by the Court of First Instance. More importantly, the Court stressed the fact that these 
direct  sales  were  made  to  the  new  Member  States  for  a  transitional  period  only.  In 
contrast,  in  this  case,  the  available  evidence  indicates  that  the  sales  directly  by  the 
producer  to  certain  third  countries  are  not  temporary  but  -  at  least  in  principle  - 
structural,  i.e.  permanent.  Moreover,  for  each  producer  concerned,  those  sales 
represent a considerable percentage of its domestic sales. Finally, in Canon v Council 
the  sales  of  the  sales  subsidiary  of  the  exporting  producer  on  the  domestic  market 
included  other  products  that  were  only  sold  under  a  different  brand  name  but  had 
nevertheless all been produced by the exporting producer itself. The claim is therefore 
again rejected.  

(34)  One  Indonesian  company  further  claimed  that,  even  if  the  concept  of  the  single 
economic  entity  were  not  to  be  accepted,  the  Commission  had  imposed  a  "double 
margin"  by  deducting  from  the  export  price  to  independent  customers  in  the  Union 
both  a  profit  for  the  related  importer  in  the  Union  as  well  as  a  commission  for  the 
related trader in the third country. However, the two items were taken into account for 
different  purposes  and  were  deducted  separately.  As  explained  in  recital  (28),  for 
export  sales  through  related  importers  in  the  Union,  the  export  price  is  constructed 
pursuant to Article 2(9) of the basic Regulation on the basis of the price at which the 
imported  products  are  first  resold  to  an  independent  buyer.  In  these  cases  an 
adjustment  for  the  profit  accruing  shall  be  made  so  as  to  establish  a  reliable  export 
price at the Union frontier level. On the contrary, the commission for the related trader 
in the third country was deducted pursuant to Article 2(10)(i) of the basic Regulation. 
Therefore, the claim is rejected. 

(35)  The company further claimed that, in case the export price were to be adjusted for the 
commission  of  the  related  trader  in  the  third  country  pursuant  to  Article  2(10)(i),  an 
identical adjustment to the normal value should be made, since this trader would also 
coordinate  domestic  sales.  However,  the  written  contract  between  the  trader  and  the 
producer in Indonesia only covers export sales. Moreover, domestic sales are invoiced 
by the company in Indonesia. The claim is therefore rejected. 

(36) 

In respect of the adjustment pursuant to Article 2(10)(i) of the basic Regulation, it is 
considered  appropriate  to  use  a  reasonable  profit  margin  independent  of  the  actual 
profit  resulting  from  transfer  prices  in  order  to  avoid  any  distorting  effects  that  may 
arise from the transfer prices. Therefore, the actual profit margins of the traders in the 
third  country  which  were  used  at  provisional  stage  were  replaced  by  a  profit  of  5% 
which  is  considered  a  reasonable  profit  for  the  activities  carried  out  by  trading 
companies in the chemical sector, as was done in previous cases.7 

(37)  Another  Indonesian  company  claimed  that  the  Commission  had  deducted  twice 
commission  expenses  for  sales  via  its  related  importer  in  the  Union.  The  company 
argued  that  an  adjustment  for  both  the  related  importer's  SG&A  expenses  as  well  as 
commission  expenses  as  a  direct  selling  expense  was  made  when  constructing  the 
export  price  pursuant  to  Article  2(9)  of  the  basic  Regulation.  Since  the  commission 
expenses  are  already  included  in  the  SG&A  expenses,  this  resulted  in  a  double 

7 

For  instance  in  Granular  polytetrafluoroethylene  (PTFE)  originating  in  Russia  and  the  People's 
Republic of China, OJ L 144, 8.6.2005, p. 11, and in Peroxosulphates (persulphates) originating in the 
United States of America, the People’s Republic of China and Taiwan, ,OJ L 97, 12.4.2007, p. 6 

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deduction  for  commission  expenses.  This  claim  was  found  to  be  justified  and  the 
calculation was amended accordingly. 

(38)  One  company  reiterated  its  claim  for  an  adjustment  for  differences  in  physical 
characteristics  on  the  basis  that  it  exports  the  product  concerned  in  both  liquid  and 
solid form to the EU whilst it only sells it in solid form on the domestic market and 
that the prices for the liquid form are lower than those for the solid form of the product 
investigated (see recital (39) of the provisional Regulation). To support the claim the 
company  submitted  the  copy  of  two  invoices  for  sales  to  other  export  markets. 
However, this evidence could not be verified at this late stage of the proceeding, nor 
could it be ascertained that the difference shown was applicable to all cases where the 
above differences in physical characteristics existed. The claim is therefore rejected. 

(39)  Following  provisional  disclosure,  one  Indonesian  exporter  claimed  that  the  interest 
rate used for the calculation of credit costs of its related importer in the Union in the 
provisional  Regulation  was  disproportionate  and  suggested  to  use  an  interest  rate 
based on figures published for the IP by Deutsche Bundesbank. Since the interest rate 
figure  used  for  the  calculation  of  credit  costs  for  this  company  in  the  provisional 
Regulation was based on information submitted by other parties and therefore reflects 
their  specific  financial  situation  which  is  not  necessarily  applicable  to  the  related 
importer  in  question,  the  claim  was  accepted  and  the  calculation  was  amended 
accordingly. 

(40) 

In  the  absence  of  any  other  comments  concerning  the  comparison,  the  provisional 
findings in recitals (37) to (40) of the provisional Regulation – adjusted as explained at 
recitals (36), (37) and (39) above - are hereby confirmed. 

2.4. 

Dumping margin  

(41) 

In the absence of any other comments concerning the dumping margin calculation, the 
content of recitals (41) and (42) of the provisional Regulation is hereby confirmed. 

(42)  The amount of dumping finally determined, expressed as a percentage of the CIF net 

free-at-Union-frontier price, before duty, is as follows: 

Company 

Provisional dumping margin 

P.T. Ecogreen Oleochemicals 

P.T. Musim Mas 

All other companies 

7,3% 

5,4% 

7,3% 

3. 

Malaysia 

3.1. 

Normal value 

(43)  Following  the  provisional  disclosure,  one  of  the  Malaysian  exporting  producers 
claimed that the profitability test in the ordinary course of trade assessment (see recital 
46 of the provisional Regulation) should not have been based on the weighted average 

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annual cost of production but that, given the daily price fluctuations of the main raw-
material,  individual  cost  of  each  domestic  transaction  should  have  been  used.  With 
regard  to  this  claim  it  should  be  underlined  that  it  is  the  Commission  consistent 
practice  to  use  weighted  average  cost  of  production  as  a  benchmark  for  the 
profitability  test.  This  format  was  followed  by  the  company  in  its  reply  to  the 
questionnaire  and  constituted  the  basis  for  the  on  spot  verification  visit  which 
reconciled the data reported by the company with the company's accounts. The claim 
to  use  a  transaction  based  cost  of  production,  which  would  constitute  a  significant 
departure from the normal practice of the Commission, was raised for the first time in 
the  company's  comments  to  the  provisional  disclosure  document  and  corresponding 
figures  could  therefore  not  be  verified  on  spot.  It  should  also  be  noted  that  the 
individual transaction cost sheets submitted by the company in support of their claim 
are to large extent based on estimations and therefore fail to represent more accurate 
and  representative  costs  data  than  the  ones  initially  reported  by  the  company  and 
verified  on  spot.  Lastly,  it  should  be  noted  that  the  structure  of  the  new  cost  sheet 
provided  does  not  allow  reconciliation  with  this  part  of  management  reports  which 
were verified on spot. Therefore, the claim is rejected.  

(44)  The  Malaysian  exporter  with  no  domestic  sales  (see  recital  (51)  of  the  provisional 
Regulation)  claimed  that  the  amounts  for  SG&A  costs  and  for  profits  used  for  the 
calculation  of  the  normal  value  should  not  be  based  on  the  weighted  average  of  the 
actual  amounts  determined  for  the  two  other  exporting  producers  selling  the  like 
product  in  the  Malaysian  market.  The  company  claimed  that  these  figures  are  not 
representative,  as  the  company  is  using  different  manufacturing  methods  involving 
different basic raw material. With regard to this claim it should be recalled that in the 
calculation  of  the  normal  value  the  company's  own  manufacturing  costs  were  used. 
Only  the  amounts  concerning  SG&A  costs  were  based  on  the  figures  obtained  from 
the two other Malaysian exporting producers. As regards the amount for profit, it was 
determined  as  explained  in  Recital  (45)  below.  Secondly,  the  company  failed  to 
explain the alleged effect of the production method used on SG&A costs. Furthermore, 
it  is  noted  that  only  a  limited  part  of  the  production  of  the  company  is  based  on  the 
allegedly  different  production  method  while  substantial  part  of  the  production  is 
manufactured  with  the  same  production  process  and  with  use  of  the  same  basic  raw 
materials  as  in  the  case  of  the  other  two  Malaysian  producers.  Therefore,  it  is 
concluded  that  the  company  failed  to  demonstrate  that  the  figures  used  were  not 
representative and the claim in this regard is rejected.  

(45)  The  same  Malaysian  exporter  further  claimed  that,  should  the  Commission 
nevertheless use the data from the two other exporters for the purpose of establishing 
SG&A, such data should be based on the weighted average figures relating to all the 
domestic  transactions  of  those  exporting  producers  and  not  only  relating  to  the 
profitable transactions. In principle this claim was accepted. Thus, as regards SG&A, 
it is confirmed that the average SG&A costs for all domestic transactions of the two 
Malaysian  exporting  producers  were  used  in  constructing  the  normal  value.  The 
figures  used  for  this  calculation  were  verified  during  verification  visits  in  the 
respective Malaysian companies. As regards the determination of profit, it should be 
noted  that  it  was  not  possible  to  determine  an  amount  for  profit  on  the  basis  of  the 
amounts  incurred  and  realised  by  the  two  other  exporting  producers.  Indeed,  such 
computation  results  in  an  overall  loss  amount.  No  profit  data  could  therefore  be 
established  on  that  basis.  In  that  respect,  the  claim  by  the  Malaysian  exporter  that  a 

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negative amount can be used as a profit amount for the construction of normal value is 
rejected.  Indeed,  the  concept  of  profit  necessarily  implies  the  existence  of  a  positive 
amount. It was also considered whether the amount for profit could be established on 
the  basis  of  the  profitable  sales  of  the  exporting  producer  in  Malaysia  but  that 
approach was rejected as it would have been in contradiction with the WTO findings 
in the case on Imports of Cotton Type Bed Linen from India8. Therefore, pursuant to 
Article 2(6)(c) of the basic Regulation, the calculation of the profit has to be based on 
any other reasonable method and, in the absence of any other available data, the long 
term  commercial  interest  rate  in  Malaysia  was  considered  as  the  most  appropriate 
basis for establishing profit. This method was considered conservative, reasonable and 
the most appropriate within the meaning of Article 2(6)(c) of the basic Regulation. It 
is  noted  that  the  profit  margin  so  established  does  not  exceed  the  profit  realised  by 
other  exporting  producers  on  sales  of  products  of  the  same  general  category  in  the 
domestic market of the country of origin.  

(46) 

In the absence of any other comments concerning the determination of normal value, 
the provisional findings in recitals (44) to (51) of the provisional Regulation, but for 
the amendment as explained in the recital (45) above, are hereby confirmed. 

3.2. 

Export price 

(47)  For export sales to the Union through related importers located in the Union, following 
provisional  disclosure,  the  two  Malaysian  exporters  claimed  that  the  profit  margin 
used  for  the  construction  of  the  export  price  pursuant  to  Article  2(9)  of  the  basic 
Regulation  was  inappropriate.  One  of  the  companies  supported  its  claims  by  the  IP 
profitability  figures  of  some  of  their  European  unrelated  traders.  In  this  regard,  it 
should be noted that these figures cannot be considered representative, as the traders 
indicated trade in a wide range of chemical products, and in one case the trader is also 
a producer. Therefore, they are rejected as a reliable benchmark. The second company 
claimed that its related importer in the EU should not be treated as a distributor but as 
a related agent and therefore the SG&A cost and profit adjustment in the construction 
of the export price should not exceed the percentage of commission normally granted 
to  independent  agents  trading  in  the  sector.  The  company  submitted  its  agreements 
with  independent  agents  as  a  benchmark.  The  claim  was  further  developed  after  the 
definitive  disclosure  by  arguing  that  in  the  tungsten  electrodes  case9  the  profit  of  a 
related importer was considered reliable and accepted in the construction of the export 
price. In reply to this claim it should be noted that Article 2(9) of the basic Regulation 
does not provide for different treatment between related importers allegedly acting as 
distributors and importers allegedly acting as agents. Article 2(9) requires adjustments 
for  all  costs  incurred  between  importation  and  resale  and  for  profits  accruing. 
Furthermore, it should be noted the investigation showed that the related company is 
located  in  the  Union.  It  handles,  inter  alia,  the  customer  orders  and  the  invoicing  of 
the  product  concerned  produced  by  its  related  exporter  as  well  as  is  responsible  for 
arranging the EU customs clearance. The fact that certain activities are performed by 
the related exporter prior to importation does not mean that the export price may not 
be reconstructed on the basis of the resale price to the first independent customer with 
the necessary allowances being made pursuant to Article 2(9). Differences in functions 

8 
9 

WT/DS141/AB/R, adopted 12 March 2001.  
Council Regulation (EC) No 260/2007 of 9.03.2007, O.J. L 72, 13.03.2007, p.1, recital 25.  

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claimed by the company as compared to other related importers are normally reflected 
in  the  SG&A  expenses  where  the  Commission  used  actual  data  of  the  company. 
Therefore, this claim can not be accepted. It should be further noted that in the above-
mentioned tungsten electrodes case the related importer was further integrated into the 
downstream  product  produced  by  the  related  group  and  was  also  performing  other 
activities than those of a trading company. Therefore, for such complex structure, the 
profit of unrelated importers was found not to be representative enough. The situation 
in that case is not comparable with the situation of the Malaysian related importer in 
question,  which  only  performs  trading  functions.  Nevertheless,  for  the  reasons 
explained in recital (29) above, the profit margin in question is adjusted to 5%. In the 
absence  of  any  other  comments  concerning  the  determination  of  export  price,  the 
provisional findings in recitals (52) to (54) of the provisional Regulation, but for the 
amendment as explained above, are hereby confirmed. 

3.3. 

Comparison 

(48)  Following the provisional disclosure one Malaysian exporter reiterated its claim (see 
also recital 57 of the provisional Regulation) that its related importer in the Union is, 
in fact, the export department of the manufacturer and that there would be excessive 
deductions  in  establishing  the  ex-works  export  price  if  full  adjustments  for  SG&A 
costs  and  profits,  pursuant  to  Article  2(9)  of  the  basic  Regulation,  were  made.  The 
company  claimed  that,  alternatively,  a  similar  adjustment  should  be  made  when 
calculating  the  normal  value.  The  claim  was  reitereted  again  in  the  submission  after 
definitive disclosure. However, no new argument was presented which would lead to a 
change in the conclusions in this regard. In particular, it is recalled that invoices were 
issued  by  the  related  company  to  customers  in  the  Union  and  that  payments  were 
received by the related company from customers in the Union. Furthermore, it is to be 
noted  that  the  sales  made  by  the  related  company  included  a  mark-up.  Also,  the 
financial  accounts  of  the  related  company  showed  that  it  bore  normal  SG&A  costs 
incurred  between  importation  and  resale.  Therefore,  the  related  company  indeed 
performs  the  typical  functions  of  an  importer.  Finally,  it  should  be  noted  that  the 
producer in Malaysia also performed direct sales to independent clients in the Union 
and  other  countries.  On  the  latter  issue,  the  company  referred  to  the  Interpipe 
judgement  with  arguments  similar  to  those  raised  by  the  Indonesian  exporting 
producers. For the reasons already explained in recital (33) above, the circumstances 
of this case are different from the circumstances discussed in the Interpipe judgement. 
Furthermore, the claim of the Malaysian exporter that the company's independent sales 
were negotiated by its related importer in the EU acting in the capacity of the export 
sales  department  of  the  Malaysian  company  contradicts  the  explanations  provided 
during the verification visit where the key role played by the mother company in Japan 
was instead underlined in this context. The above findings lead to the conlcusion that 
the adjustment for SG&A and profit should be maintained and no similar adjustment 
for the calculation of normal value is justified. 

(49)  The same company also claimed that the deduction of certain selling expences of its 
related  importer  had  been  made  twice  in  re-constructing  the  export  price.  The 
calculations were checked and, since the claim was found to be justified, were adjusted 
accordingly.  

(50)  One  of  the  Malaysian  exporters  claimed  that  the  comparison  between  normal  value 
and export price should not be based on product types as identified by product control 

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numbers (PCN) but on the basis of the companies' own product codes. According to 
this company, the PCNs used in the investigation would not capture in sufficient detail 
the  specificities  of  the  production  process  and  differences  in  the  costs  and  prices.  In 
support  of  this  claim  the  company  referred  to  some  of  its  products  which  were 
manufactured  by  using  different  production  processes  and  different  basic  raw 
materials, which resulted in higher unit costs of production. It should be noted that this 
claim was neither raised at the provisional stage of the investigation nor during the on 
spot verification visit. Furthermore, the use of the company's own product codes in the 
calculation  would  not  solve  the  problem  of  different  production  methods  since  the 
same  company's  production  codes  were  also  used  for  products  manufactured  under 
different production processes. Therefore, the claim is rejected.  

(51) 

In the absence of any comments concerning the comparison, the provisional findings 
in  recitals  (55)  to  (58)  of  the  provisional  Regulation,  but  for  the  amendment  as 
explained in the recital (49) above, are hereby confirmed. 

3.4. 

Dumping margin  

(52)  Following  the  provisional  disclosure,  a  Malaysian  producer  which  did  not  export  to 
the EU commented on recital (60) of the provisional Regulation claiming that there are 
other producers of the product concerned in Malaysia. In this regard it is noted that the 
presence of an additional producer in Malaysia, which is not an exporter to EU, does 
not  change  the  finding  with  regard  to  the  level  of  cooperation  in  Malaysia  as  no 
evidence  was  presented  that  the  investigated  companies  did  not  account  for  all  the 
exports  of  the  product  concerned  to  EU  in  the  IP.  Furthermore,  the  same  Malaysian 
producer criticised the fact that producers, like him, which did not export to the Union 
in the IP would be subject to the residual duty rate. In this regard it has to be noted that 
companies which have not exported to the EU during the IP cannot have an individual 
duty  rate.  However,  as  soon  as  these  companies  start  to  export,  or  enter  into  an 
irrevocable  obligation  to  sell  to  the  EU,  they  may  apply  for  a  newcomer  review  in 
accordance  with  Article  11(4)  of  the  basic  Regulation  which  may  result  in  an 
individual duty margin, if the conditions set up in that article are fulfilled.  

(53)  One  of  the  Malaysian  producers  claimed  that  the  CIF  value  used  as  a  basis  for 
calculating the dumping margin percentage should not be based on the price declared 
to the customs,  but should be calculated  back from the resale price,  netted  of  all the 
post importation costs in the EU. However, since the CIF price was used as the basis 
of the custom value declarations at Union frontier, and does not appear to have been 
incorrectly declared, this same price is to be used as the basis for the dumping margin 
percentage  calculation.  The  company  claimed  that  a  time  gap  exists  between  related 
deliveries from Malaysia and custom clearance for the purpose of resales in the EU. 
However,  even  if  the  invoices  for  custom  clearance  are  issued  at  a  later  stage,  with 
prices following the FIFO stock valuation method, it is still the transfer price and not 
the resale price which is the basis for the calculation of the custom value. Therefore 
the claim is rejected.  

(54) 

In the absence of any other comments concerning the dumping margin calculation, the 
content of recitals (59) and (60) of the provisional Regulation is hereby confirmed. 

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(55)  The amount of dumping finally determined, expressed as a percentage of the CIF net 

free-at-Union-frontier price, before duty, is as follows: 

Company 

Definitive dumping margin 

KL-Kepong Oleomas Sdn. Bhd. 

Emery Oleochemicals (M) Sdn. Bhd. 

Fatty Chemicals Malaysia Sdn. Bhd. 

All other companies 

3,3 % 

5,3% 

5,7 % 

5,7 % 

1. 

Preliminary remarks 

D. INJURY 

(56)  After the publication of the provisional Regulation, it was found that minor corrections 
had  to  be  made  to  the  consumption  figures  due to a clerical error. This led to minor 
changes in sales volume, market share of the Union industry and the market share of 
the countries concerned. These corrections however, have no significant impact on the 
trends and the conclusions reached with regard to consumption, sales volume, market 
share  of  the  Union  industry  and  market  share  of  the  countries  concerned  during  the 
period considered in the Union market.  

2. 

Union production and Union industry 

(57)  As mentioned in recital (62) of the provisional Regulation, it was found that the like 
product  was  manufactured  by  the  two  complainants  and  by  small  producers  in  the 
Union.  As  mentioned  in  recitals  (11)  and  (12)  above,  producers  producing  FOH 
containing  branched  isomers  were  excluded  from  the  definition  of  the  Union 
production  of  FOH.  Despite  the  fact  explained  in  recital  (58)  below,  the  Union 
industry as defined in recitals (62) and (63) of the provisional Regulation is confirmed.  

(58)  One of the two complainants was taken over by a company which is participating in 
the  current  proceeding  as  a  user.  This  complainant  took  a  neutral  position  after  the 
publication of the provisional Regulation.  

(59)  Hence, some parties questioned the level of support or standing for the investigation 

claiming that support for the investigation must hold during the entire investigation.  

(60)  Analysis of this claim showed that the remaining complainant represents over 40% of 
the total Union production, thus more than 25% of total Union production and 100% 
of  the  Union  producers  of  FOH  expressing  their  support  for  or  opposition  to  the 
complaint.  Hence,  the  25%  and  the  50%  thresholds  required  by  Article  5(4)  of  the 
basic Regulation are fully met and standing can be confirmed.  

(61)  Some  parties  claimed  that  since  both  complainants  had  imported  the  product 
concerned during the IP, they should not be considered part of the Union industry. It 
was  however  verified  that  the  percentage  of  product  imported  by  these  companies 

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from the countries concerned was not substantial in comparison with their production 
of the like product. Furthermore, these imports were mainly of a temporary nature. It 
can therefore be confirmed that the core activity of these companies is production and 
sales  of  the  like  product.  In  consequence  recitals  (62)  to  (63)  of  the  provisional 
Regulation are hereby confirmed. 

3. 

Union consumption 

(62) 

In the absence of comments concerning the Union consumption, recitals (64) to (66) of 
the provisional Regulation are hereby confirmed. 

4. 

Imports into the Union from the countries concerned and price undercutting 

4.1. 

4.1 Cumulation 

(63)  A number of parties argued against the fact that a cumulative assessment was made for 
the  three  countries  concerned  in  the  provisional  Regulation.  In  their  opinion  the 
conditions for cumulation laid down in Article 3(4) of the basic Regulation were not 
met.  Specifically,  they  argued  that  the  negative  undercutting  found  for  one  of  the 
countries  precluded  cumulation.  In  addition,  they  submitted  that  the  trends  in  sales 
volumes  for  the  three  exporting  countries  differed  during  the  period  considered,  that 
access  to  raw  materials  and  the  raw  materials  used  in  the  three  exporting  countries 
were  also  different.  Finally,  it  was  mentioned  that  export  sales  from  one  of  the 
countries  concerned  were  channelled  through  related  companies.  In  their  view, 
different  conditions  of  competition  existed  between  the  countries  concerned  in  the 
Union  market.  Article  3(4)  of  the  basic  Regulation  says  that  where  imports  of  a 
product  from  more  than  one  country  are  simultaneously  subject  to  anti-dumping 
investigations, the effects of such imports shall be cumulatively assessed only if it is 
determined that: (a) the margin of dumping established in relation to the imports from 
each country is more than de minimis as defined in Article 9(3) and that the volume of 
imports  from  each  country  is  not  negligible;  and  (b)  a  cumulative  assessment  of  the 
effects of the imports is appropriate in light of the conditions of competition between 
imported  products  and  the  conditions  of  competition  between  the  imported  products 
and the like Union product. 

(a) 

(b) 

As  explained  in  paragraph  4.3.2  of  the  provisional  Regulation,  the 
volume  of  dumped  imports  for  each  country  concerned  was  not 
negligible,  and  the  presence  of  dumped  imports  remained  significant 
during the period considered. 

It was found that the conditions of competition and the pricing of the 
countries concerned  were  similar between  the imported  products and 
the  like  product,  in  particular  during  the  IP.  As  explained  in  recital 
(127)  of  the  provisional  Regulation,  the  injury  elimination  levels 
established for the countries concerned were significantly above the de 
minimis threshold of 2%. Hence, the price undercutting is not exactly 
reflecting the situation which would occur in a market with effective 
price competition. Furthermore, the sales channels and the price trends 
for  each  of  the  countries  concerned  were  analysed  and  found  to  be 
similar as shown in the table below. The import prices of the countries 

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concerned followed a declining trend and were particularly low during 
the IP compared to the average Union industry's prices.  

Imports  based  on  Eurostat  (as 
adjusted to cover only the product 
concerned) 

2007 

2008 

2009 

IP 

Average price in EUR/tonnes Malaysia 911 

944 

799 

857 

Index: 2007=100 

100 

104 

88 

94 

Annual ∆% 

3,6 

-15,4 

7,3 

Average 
Indonesia  

price 

in 

EUR/tonnes 

996 

1169 

899 

912 

Index: 2007=100 

100 

117 

90 

92 

Annual ∆% 

17,3 

-23,1 

1,4 

Average price in EUR/tonnes India  

997 

1141 

897 

915 

Index: 2007=100 

100 

114 

90 

92 

Annual ∆% 

14,4 

-21,4 

2,1 

(64)  Consequently, recitals (67) to (70) of the provisional Regulation are hereby confirmed.  

4.2. 

Volume, price and market share of dumped imports from the countries concerned 

(65) 

In  the  absence  of  comments  concerning  volume,  price  and  market  share  of  dumped 
imports  from  the  countries  concerned,  recitals  (71)  to  (73)  of  the  provisional 
Regulation, are hereby confirmed.  

4.3. 

Price undercutting 

(66)  Parties  claimed  that  there  are  differences  in  raw  material  prices  between  FOH 
produced from natural oils and fats and synthetic sources such as crude or mineral oil 
and  that  an  additional  product  control  number  (PCN)  criterion  should  have  been 
introduced in order to consider the differences in cost of production arising from the 
different  production  processes.  However,  PCNs  are  established  on  the  basis  of  the 
individual characteristics of each sub-category of items falling within the definition of 
the  product  concerned  and  not  on  the  basis  of  the  price  of  each  of  those  items. 
Moreover,  it  was  found  that  there  is  no  substantial  difference  in  terms  of  the  basic 
characteristics of FOH produced from natural oils and fats and FOH made of crude or 
mineral oil, nor the cost of production difference is such as to warrant a differentiation 
in terms of PCN. This claim is therefore rejected.  

EN 

19 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
(67)  Certain parties claimed that the figure used to reflect the post-importation costs, which 
are around 3% of the import price, used to establish the level of undercutting by the 
countries  concerned  was  unclear  and  did  not  seem  to  be  appropriate  in  this  case. 
However,  the  information  verified  during  the  investigation  showed  that  importing 
parties such as importers and users had to pay such amount of post importation costs 
in order to release the product concerned for free circulation into the Union market. In 
addition, the parties did not provide any evidence which would indicate that the post 
importation  costs  were  not  correctly  established  in  this  case.  Hence,  this  claim  was 
dismissed.  The  methodology  used  to  calculate the  price  undercutting  as  explained  in 
recitals (74) and (75) of provisional Regulation is hereby confirmed. 

5. 

Economic situation of the Union industry  

5.1. 

Preliminary remarks 

(68)  Despite  the  change  in  ownership  mentioned  in  recital  (58)  above,  it  was  considered 
that  the  data  provided  by  and  verified  at  the  premises  of  the  complainant  who 
withdrew,  should  not  automatically  be  excluded  from  the  injury  analysis  since  its 
production remains part of the Union production.  

(69)  Some  parties  argued  that  some  data  provided  by  the  Union  industry,  in  particular 
regarding their purchases of the product concerned originating in India, Malaysia and 
Indonesia,  should  be  excluded  from  the  injury  analysis  and  the  injury  margin 
calculation  because  any  alleged  injury  relating  to  these  purchases  would  be  self-
inflicted.  However,  as  stated  in  recital  (63)  of  the  provisional  Regulation,  these 
purchases were mainly due to the temporary closure of one of the production sites of 
one producer. Moreover, these purchases were not substantial in comparison with the 
total production of the complainants. There were therefore no compelling reasons for 
excluding  the  purchases  of  the  said  producers  from  the  injury  analysis  or  the  injury 
elimination level calculation.  

(70)  The  preliminary  remarks  as  mentioned  in  recital  (76)  of  the  provisional  Regulations 

are hereby confirmed. 

5.2. 

Production, production capacity and capacity utilisation, Sales and market share 

(71) 

In  the  absence  of  comments  concerning  production,  production  capacity,  capacity 
utilisation,  sales  and  market  share  of  the  Union  industry,  recitals  (77)  to  (81)  of  the 
provisional Regulation are hereby confirmed.  

5.3. 

Average unit prices of the Union industry 

(72)  After the publication of the provisional Regulation, it was found that corrections had 
to be made to the average unit prices of the Union industry due to a clerical error. The 
table  below  shows  the  modified  trend  in  unit  price  of  the  Union  industry  during  the 
period considered. 

Unit price, sales in EU to unrelated 
Index: 2007=100 
Annual ∆% 
Source: questionnaire replies 

2007 
100

2009 

2008 
123

102 
22,6% -16,9% 

IP 

96
-5,3%

EN 

20 

   EN 

 
 
 
 
 
 
(73)  Contrary to what is mentioned in recital (84) of the provisional Regulation, prices of 
the Union industry decreased by 4% during the period considered. The decrease was 
significant from 2008 to 2009 with a further decrease in the IP. Over this period the 
sales price decreased 22%. The above change has no impact on the conclusion of the 
economic  situation  of  the  Union  industry,  in  the  absence  of  comments  regarding  the 
average  unit  prices  of  the  Union  industry,  recitals  (82)  and  (83)  of  the  provisional 
Regulation are hereby confirmed.  

5.4. 

Stocks,  Employment,  wages  and  productivity,  Profitability,  cashflow,  investments 
return  on  investment  and  ability  to  raise  capital,  growth,  magnitude  of  the  actual 
dumping margin 

(74)  Some parties claimed that it was not possible that the Union industry suffered injury 
since  companies  that  are  part  of  the  Union  industry  are  vertically  integrated  and 
imported  the  product  concerned  from  third  countries.  Therefore  they  could  use  the 
imported product  for  their  downstream production and sell their production which is 
not profitable.  

(75) 

It should be noted that in certain anti-dumping investigations, producers such as steel 
producers  and  chemical  products  manufacturers,  included  in  the  definition  of  the 
Union  industry  in  these  cases,  have  a  downstream  activity  and  that  a  share  of  their 
production of the product concerned is destined for captive use. Nevertheless, in such 
a  situation,  the  possible  existence  of  material  injury  to  the  Union  industry  is 
investigated exclusively for the production and sales of the product concerned. In the 
present case, material injury has been found in the business of the product concerned 
as explained in recitals (77) to (93) of the provisional Regulation. The parties did not 
provide  any  evidence  which  would  show  that  the  findings  in  these  recitals  are  not 
correct  and  that  the  Union  industry  did  not  suffer  material  injury  during  the  IP. 
Therefore this claim is rejected. 

(76)  Some  parties  claimed  that  the  closure  of  certain  production  capacity  by  the 
complainants  showed  a  misleading  picture  of  the  alleged  injury  they  suffered.  They 
argued that there were other producers in the Union that contributed to the capacity in 
the  Union  and  that  the  capacity  of  the  Union  industry  increased  with  investments  in 
new  capacity.  This  is  hardly  indicative  of  an  injured  industry.  Other  parties  claimed 
that  the  reduction  of  investment  does  not  mean  injury,  but  means  relocation  of 
production out of the EU. 

(77)  The  investigation  established  in  recital  (78)  of  the  provisional  Regulation  that  the 
production  capacity  of  the  Union  industry  increased  by  9%  in  2008  but  that  it  then 
decreased by 10% during the IP. This was the result of decisions undertaken in order 
to  face  the  competition  from  the  countries  concerned,  and  the  subsequent  temporary 
closures were also due to the pressure exerted by the dumped imports. With regard to 
investments,  it  was  established  in  recital  (89)  of  the  provisional  Regulation  that 
investments  made  by  the  Union  industry  in  the  Union  decreased  by  35%  during  the 
period considered. This is one of several injury factors which allowed concluding in 
recitals  (92)  and  (93)  of  the  provisional  Regulation  that  the  Union  industry  suffered 
material injury during the IP.  

(78) 

In  the  absence  of  other  comments  concerning  stocks,  employment,  wages  and 
productivity, profitability, cash flow, investments return on investments and ability to 

EN 

21 

   EN 

 
raise capital, growth and magnitude of the actual dumping margin, the recitals (85) to 
(91) of the provisional Regulation are hereby confirmed.  

5.5. 

Post IP developments  

(79)  Some  parties  argued  that  there  was  no  evidence  of  material  injury  suffered  by  the 
Union industry and the fact that one of the two original complainants had withdrawn 
its  support  to  the  investigation  showed  that  it  was  not  suffering  injury.  It  was  also 
argued that the injury indicators for the remaining complainant did not show a picture 
of injury.  

(80) 

(81) 

It should be noted that the company in question did not oppose to the investigation but 
took  a  neutral  position.  Therefore,  as  explained  in  recital  (57)  above,  it  was  still 
considered appropriate to keep both Union producers as part of the Union industry.  

It was claimed that there has been a marked increase of prices in the post-IP period, 
and that these price developments in that period will immediately translate into profits 
for  the  complainants  who  themselves  announced  better  results  in  their  public 
statements for the period 2010-2011.  

(82)  Some parties insisted that there was a significant improvement in the situation of the 
Union industry in the post-IP period pointing out that some companies were planning 
to build new facilities in the EU. It was also claimed that in view of the recent increase 
in import prices, measures should be suspended or imposed in the form of a minimum 
import price (MIP). 

(83)  Events that occurred after the IP shall normally not be taken into account in an anti-
dumping investigation. In addition, no evidence that suggests that the mentioned post-
IP  events  are  manifest,  undisputed  and  lasting  was  provided.  Concerning  any 
suspension  of  the  definitive  measures,  this  should  be  seen  in  the  light  of  post-IP 
developments which would be of a lasting nature. 

(84)  As  to  the  imposition  of  a  MIP,  as  explained  below  in  recitals  (123)  to  (126)  it  is 
considered that the circumstances are not such as to warrant it. Therefore all the above 
claims are dismissed.   

6. 

Conclusion on injury 

(85)  The Investigation confirmed that most of the injury indicators pertaining to the Union 
industry showed a declining trend during the period considered. Based on the above, 
the conclusion reached in recitals (92) and (93) of the provisional Regulation that the 
Union industry suffered material injury during the IP is confirmed.  

1. 

Effect of the dumped imports  

E. CAUSATION 

(86)  One party observed that the analysis in recital (108) of the provisional Regulation is 
flawed, because it seems to link an overall and continuous decrease in consumption to 
the  increase  in  imports,  whereas,  according  to  this  party,  imports  from  the  countries 
concerned developed in line with consumption.  

EN 

22 

   EN 

 
 
 
(87) 

It  should  be  clarified  indeed  that,  as  mentioned  in  recitals  (64)  to  (66)  of  the 
provisional  Regulation,  consumption  overall  increased  by  2%  during  the  period 
considered.  However,  this  does  not  undermine  the  fact  that  there  was  an  important 
overall increase in volume and market share of the low-priced dumped imports from 
the  countries  concerned  during  the  period  considered  (see  recital  (96)  of  Provisional 
Regulation), whereas the market size remained nearly unchanged, and while the Union 
industry lost an important market share, in particular between 2009 and the IP.  

(88)  Some  parties  made  the  argument  that  the  trends  of  imports  from  the  countries 
concerned  are  not  linked  to  the  deterioration  of  economic  situation  of  the  Union 
industry,  in  particular  sales  volume,  sales  values  and  profitability.  They  argue  that 
there  was  an  improvement  in  profitability  of  the  Union  industry  when  the  imports 
increased in 2008, and then it fell significantly when imports remained stable.  

(89)  Contrary  to  the  above  allegation,  the  investigation  pointed  to  an  overall  correlation 
between the low-priced dumped imports and the injury suffered by the Union industry 
during  the  whole  period  considered  (see  recitals  (95)  to  (98)  of  Provisional 
Regulation) .The investigation also showed that the Union industry could not recover 
in the period considered due to the increased presence of low-priced dumped imports 
on the Union market. Hence, the claim should be rejected. 

(90) 

(91) 

It was also claimed that differences in trends in imports existed depending on the types 
of alcohol produced by some exporting producers, and that therefore, a separate injury 
analysis for these alcohols should be performed. However, the different types included 
in  the  product  scope  share  the  same  basic  characteristics.  The  investigation  did  not 
reveal any substantial difference between FOH produced from different raw materials. 
Therefore there are no reasons in this case to establish a separate analysis of the trends 
per type of alcohol. 

It was also argued that injury could not be attributed to India because its imports did 
not  increase  during  the  period  considered,  in  particular  when  purchases  by  the 
Complainants are not taken into account. However, it was found that the imports from 
India were made at dumped prices in the Union market and that the injury margin was 
largely above the de minimis level of 2%. Moreover, as explained in recitals (63) to 
(65)  above,  the  conditions  for  a  cumulative  assessment  for  the  countries  concerned 
were met. This claim should thus be rejected.  

(92) 

It  was  also  argued  that  injury  could  not  be  attributed  to  the  companies  whose 
individual  undercutting  margin  was  negative,  or  because  of  this  reason,  to  imports 
from Indonesia as a whole.  

(93)  As  explained  in  recitals  (63)  to  (65)  above,  all  the  conditions  of  a  cumulative 
assessment of the imports concerned were met. Accordingly, the effects the low-priced 
dumped imports originating in the countries concerned had on the Union industry were 
assessed  jointly  for  the  purpose  of  the  injury  analysis  and  the  cause  of  the  injury. 
Furthermore,  the  absence  of  undercutting  does  not  exclude  the  existence  of  material 
injury  to  the  Union  industry.  Indeed,  as  explained  in  recitals  (124)  to  (127)  of  the 
provisional regulation it was found that the price charged by the Union industry was 
not sufficient to cover all production costs and achieve the reasonable margin of profit 
it could have achieved in the absence of dumped imports during the IP. This claim is 
therefore rejected.  

EN 

23 

   EN 

 
(94) 

In  the  absence  of  any  other  comments  regarding  effects  of  the  dumped  imports, 
recitals (95) to (98) of the provisional Regulation are hereby confirmed.  

2. 

Effects of other factors 

(95)  Several parties have argued that the real cause of injury suffered by the Union industry 
should be attributed to the financial crisis, as the main harm to that industry occurred 
when imports from the countries concerned stabilized. It was also mentioned that the 
deterioration of the profitability of the Union industry was similar to that observed for 
other companies operating in the chemical sector.  

(96)  The  crisis  played  a  role  in  the  performance  of  the  Union  Industry.  Trends  in  injury 
factors  such  as  capacity  utilization  and  sales  volume  show  that  the  situation  of  the 
Union Industry worsened with the crisis and somewhat improved with the recovery in 
the market. However, the investigation showed that the improvement did not allow the 
recovery  of  the  Union  industry  which  was  far  from  its  economic  situation  that 
prevailed  at  the  beginning  of  the  period  considered.  Furthermore,  as  mentioned  in 
recital (89) above, 2008, just before the financial crisis started, was the year with the 
highest  increase  in  dumped  imports  from  the  countries  concerned  and  the  sharpest 
decrease in sales volume of the Union industry. After that year the Union industry did 
not recover  and  the dumped imports continued to be massively present in the  Union 
market. For these reasons it is clear that, regardless of other factors, dumped imports 
largely contributed to the material injury suffered by the Union Industry during the IP. 
This claim is therefore rejected.  

(97)  Several  parties  also  claimed  that  the  real  cause  of  the  alleged  injury  of  the  Union 
industry  was  the  imports  from  other  third  countries,  the  decrease  in  demand,  the 
increased  raw  material  prices  and  the  lack  of  proper  access  to  these  raw  materials, 
wrong  strategic  decisions  taken  by  the  Union  industry,  the  competitive  pressure  in 
their  downstream  market,  the  decrease  in  the  production  of  the  product  concerned 
destined for captive use, the general change in market conditions and the competitive 
situation in the Union market.  

(98) 

It is worth mentioning that the above parties were not able to substantiate their claims 
and  to  demonstrate  that  factors  other  than  the  low-priced  dumped  imports  from  the 
countries concerned were breaking the causal link between the injury suffered by the 
Union industry and the dumped imports.  

(99)  Some  parties  claimed  that  the  Commission  did  not  analyse  the  possible  impact  the 
sales of branched FOH had on the sales of the product concerned made by the Union 
industry and the effects it had on its economic situation. The investigation focused on 
the product as defined in recitals (8) to (12) and no party provided reliable data which 
would have allowed to assess the possible negative impact the branched FOH had on 
the economic situation of the Union industry. Hence this claim is rejected. 

(100)  In  the  absence  of  any  comments  regarding  effects  of  other  factors,  recitals  (99)  to 

(106) of the provisional Regulation are hereby confirmed.  

3. 

Conclusion on causation  

EN 

24 

   EN 

 
(101)  The investigation did not point to the fact that there were factors other than the low-
priced dumped imports from the countries concerned which were breaking the causal 
link  between  the  material  injury  suffered  by  the  Union  industry  and  the  dumped 
imports. 

(102)  In the absence of any  comments regarding conclusion on causation, recitals (107) to 

(110) of the provisional Regulation are hereby confirmed. 

1. 

Union industry 

F. UNION INTEREST 

(103)  In  the  absence  of  any  comments  with  regard  to  the  interest  of  the  Union  industry, 

recitals (112) and (113) of the provisional Regulation are hereby confirmed. 

2. 

Importers 

(104)  In the absence of comments on the interest of importers, recitals (115) and (116) of the 

provisional Regulation are hereby confirmed.  

3. 

Users  

(105)  It is recalled that in order to assess the possible impact of the anti-dumping measures 
on  the  Union  users  the  investigation  concentrated  mainly  on  the  aggregated  data 
provided by five large user companies visited at provisional stage.  

(106)  On  that  basis  it  was  provisionally  found  that  the  share  of  the  cost  of  the  product 
concerned  in  the  total  cost  of  production  for  this  group  was  significant  and  ranged 
between  10%  and  20%  depending  on  the  final  product.  However,  the  data  available 
was revised and according to new calculations and the correction of some figures, this 
range is found to be between 15% and 25%. Similarly, the average profit margin in the 
business using the product concerned was found to be around 6% for the group of the 
five  visited  companies;  the  new  calculations  show  a  higher  average  profit  margin, 
which  is  about  7,5%.  Finally,  the  average  share  of  business  using  the  product 
concerned out of the total business was also corrected. This was provisionally found to 
be about 22%, whereas according to new calculations, a percentage of 25% was found. 

(107)  After  the  publication  of  the  provisional  Regulation,  a  number  of  users  reacted  and 
made comments with regard to the final disclosure. They contested the selection of the 
five user companies mentioned in recital (118) of the provisional Regulation arguing 
that the data used to assess the possible impact of the measures on the user industry 
was  not  transparent,  not  based  on  representative  parties  and  on  a  low  number  of 
parties. It was argued that the analysis should take into consideration the data provided 
by all cooperating users in the investigation.  

(108)  However, as mentioned in recitals (117) and (118) of the provisional regulation the 21 
cooperating  companies  represent  together  around  25%  of  total  EU  purchases  of  the 
product concerned during the IP, whilst the five companies used to assess the interest 
of users represented about 18% of these purchases, and 72% of the cooperating users' 
purchases of the product concerned. Besides being representative in terms of volume 
of  purchase  of  the  product  concerned,  theses  five  users  constituted  a  very  good 

EN 

25 

   EN 

 
representation of the different business sectors of the users industry. Indeed, the five 
visited  companies  are  a  heterogeneous  group  that  includes  not  only  the  first-use 
producers,  i.e.  the  surfactants  producers,  but  also  the  users  of  the  surfactants  and 
further downstream users.  

(109)  Nevertheless,  a  wider  analysis  taking  into  account  all  information  submitted  by  the 
cooperating users was carried out. In particular, a specific assessment of the possible 
impact  of  anti-dumping  duties  on  the  surfactants  producers  as  a  separate  group  was 
performed  since  this  group  could  potentially  be  most  affected  by  the  imposition  of 
measures. Another separate analysis has been performed for a second group of users, 
consisting of all other user companies that cooperated in the investigation. 

(110)  A  simulation  assessing  the  possible  effect  of  an  average  duty  of  5%  on  imports  of 
FOH on all cooperating users first and then on the two separate groups was performed. 
The outcome of the simulation showed that the final impact of this average duty on the 
total  cost  of  production  for  the  business  using  the  product  concerned  would  be  of 
about  0,09%  for  all  users,  while  the  impact  of  the  same  duty  on  the  downstream 
product  using  the  product  concerned,  for  the  surfactants'  group  would  be  of  about 
0,05% and on the second group of companies it would be about 0,29%. 

(111)  The  analysis  showed  as  well  that  the  surfactants  producers  achieved  lower  profit 
margins  in  the  sectors  using  the  product  under  investigation;  however,  this  group 
imported from the countries concerned only about 2,6% of their total purchases of the 
product  under  investigation  during  the  IP.  Furthermore,  the  percentage  of  the 
surfactants  business  using  FOH  in  comparison  to  their  total  turnover  is  about  24%. 
Hence, even with the application of an average dumping duty of 5%, the final impact 
on the cost of production of products including the product investigated is very limited 
and even negligible on their total profitability.  

(112)  Some  surfactant  producers  nevertheless  argued  that  the  anti-dumping  duties  will 
prevent them from freely buying their raw materials, thus creating a distortion in their 
market segment.  

(113)  As  stated  in  recital  (120)  of  the  provisional  Regulation,  the  level  of  anti-dumping 
duties and the possible impact on the user industry and on the downstream market, do 
not  create  serious  barriers  to  imports  of  the  product  concerned.  The  investigation 
confirmed that the definitive anti-dumping duties could not create a distortion on the 
downstream  market.  At  the  same  time,  it  should  not  be  difficult  for  surfactant 
producers to pass on this rather low increase in cost in the final price of their products. 
Therefore,  the  claims  that  the  anti-dumping  duties  would  create  distortions  in  the 
downstream market are rejected. 

(114)  After  disclosure  of  definitive  findings  some  users  insisted  that  the  Union  producers 
had refused to supply goods to them, and that there were few alternatives of supply. 
However,  as  stated  in  recital  (120)  of  the  provisional  Regulation,  the  relatively  low 
level of proposed measures should not preclude the possibility  to import the product 
concerned. Furthermore, the Union producers did not produce at full capacity during 
the period considered. In addition, imports are also possible from other third countries 
which are not subject to measures and the Eurostat figures for imports of FOH from 
the rest of the world after the IP show that these imports are growing, indicating that 
the alleged risk of lack of supply is unsubstantiated. Therefore, this claim was rejected. 

EN 

26 

   EN 

 
(115)  Some  users'  associations  which  failed  to  make  themselves  known  in  the  deadline 
foreseen under point 5.3 of the Notice of initiation claimed that their views, especially 
on  the  possible  impact  of  the  measures  on  small  and  medium  enterprises  and  on 
specific  sectors,  had  not  been  reflected  in  the  assessment  of  the  Union  interest. 
However, it should be noted that all the comments raised by these associations have 
been  taken  into  consideration  in  this  investigation.  Furthermore,  as  stated  in  recital 
(109)  above,  the  assessment  of  the  Union  interest  has  taken  into  account  all 
information  submitted  by  the  cooperating  users.  Therefore,  this  claim  has  been 
rejected.  

(116)  Several  parties  claimed  that the  duration  of  the  measures,  were  these  to  be  imposed, 
should  be  limited  to  a  maximum  period  of  two  years. According  to  the  basic 
Regulation,  a  definitive  anti-dumping  measure  shall  normally  be  imposed  for  the 
duration  of  five  years.  Since  none  of  the  parties  demonstrated  that  a  period  of  two 
years  would  be  sufficient  to  counteract  the  dumping  causing  injury as  demanded 
in Article  11.1  of  the  basic  Regulation, there  seems  to  be  no valid  reason  to  deviate 
form  the  standard duration  of  the  length  of the measures.  Therefore,  this claim has 
been rejected.  

(117)  In the absence of any other comments on the interest of users, it is confirmed that the 
imposition of definitive measures on imports of the product concerned would not be 
against the Union interest, recitals (117) to (121) are thus confirmed.  

4. 

Conclusion on Union interest 

(118)  Based  on  the  above  the  conclusion  reached  in  recital  (122)  of  the  provisional 
Regulation can be confirmed. There are no compelling reasons against the imposition 
of definitive anti-dumping duties on imports of FOH from the countries concerned.  

G. DEFINITIVE ANTI-DUMPING MEASURES 

1. 

Injury elimination level 

(119)  It  is  recalled  that  the  profit  margin  used  to  calculate  the  target  profit  at  provisional 
stage was 7,7%. The complainants have argued that a target profit of 15% would be 
more  appropriate.  In  this  respect,  it  should  be  noted  that  they  failed  to  submit 
verifiable evidence to support the claim that the target profit was too low. Therefore, it 
is  proposed  to  confirm  the  provisional  target  profit  of  7,7%  which  is  based  on  the 
profit margin achieved for the whole alcohol business of the one complainant in its last 
profitable year before the surge of low-priced dumped imports..  

(120)  Certain parties claimed that 7,7% was not realistic and was too high. They suggested 
using a lower profit margin between 3 and 5% to establish the injury elimination level. 
This  claim  however  was  not  substantiated  by  any  evidence  showing  that  the  profit 
proposed was the one that could be achieved by the Union industry in the absence of 
dumped imports in the Union market and was thus not accepted.  

(121)  Certain  parties  have  claimed  that  the  Commission  erroneously  established  the  injury 
elimination level on the basis of the underselling margin, whereas it should have used 
the  undercutting  margin.  In  the  present  case,  it  was  not  considered  that  the 
undercutting margin was an appropriate basis to establish the injury elimination level 

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for the Union industry as it would not reflect the level of price that could be obtained 
in the absence of dumped imports in the Union market. The claim was thus rejected. 

(122)  On  this  basis,  the  provisional  injury  margins  expressed  as  a  percentage  of  the  CIF 
Union  frontier  price,  duty  unpaid  as  indicated  in  recital  (127)  of  the  provisional 
Regulation can be confirmed.  

2. 

Definitive measures 

2.1. 

Form of the definitive measures 

(123)  As  mentioned  in  recitals  (79)  to  (84)  above,  some  parties  claimed  inter  alia  that  the 
current  measures  should  be  suspended  because  post-IP  events  concerning  the  price 
increase of the product concerned in the Union market were manifest, undisputed and 
lasting. They also argued that any definitive measures should not take the form of an 
ad valorem duty but rather imposed in the form of a MIP.  

(124)  It is considered however that in this particular case the circumstances are not such as 
to warrant the imposition of a minimum import price. This form of the measure could 
easily  be  circumvented  given  the  nature  of  the  product  concerned  and  the  complex 
corporate structures of the exporters in question. 

(125)  However,  it  is  admitted  that  there  is  certain  price  sensitivity  in  the  market  for  the 
product  at  issue  and  thus  it  would  be  reasonable  to  minimise  the  impact  of  the 
definitive measures on Union users in the event of possible significant price increases 
of the product concerned. Hence, it is considered appropriate to change the form of the 
definitive measures from ad valorem duties to specific duties.  

(126)  This  form  of  measures  is  expected  to  limit  to  a  certain  extent  any  possible  undue 
negative  impact  on  the  users  in  the  case  prices  would  increase  significantly  and 
rapidly.  If,  on  the  other  hand,  prices  would  decrease,  the  specific  duties  would  still 
ensure sufficient protection to the Union producers. The specific duties are based on 
the CIF values of the co-operating companies' EU exports in the IP, converted to EUR 
using monthly exchange rates, multiplied by the lower of the dumping and the injury 
margins in accordance with the lesser duty rule.  

(127)  In this respect, two exporting producers claimed that the yearly average exchange rate 
should be used instead of the monthly. However, it is noted that in accordance with the 
standard practice, any conversion of currencies in anti-dumping investigations is made 
using the monthly exchange rates. This was the cases also for this investigation. The 
claim was therefore rejected.  

(128)  The  complainant  claimed  that  when  establishing  the  specific  duties,  current  FOH 
prices and not CIF values during the IP should have been used. It should be noted that 
specific duties are established based on the dumping and injury calculations for the IP. 
No substantiated arguments have been put forward to for basing the calculations of the 
specific  duties  in  this  case  on  a  period  after  the  IP.  Therefore  this  claim has 
been rejected.  

2.2. 

Imposition of the definitive measures 

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(129)  After  the  publication  of  provisional  measures  a  potential  exporting  producer  came 
forward and claimed that the residual duty rate should be set at the level of the highest 
duty imposed and not of the highest dumping margin found for Indonesia. However, 
the  residual  duty  is  set  at  the  residual  dumping  or  the  residual  injury  margin  by 
applying the lesser duty rule. The claim was therefore rejected. 

(130)  In the light of the foregoing, it is considered that, in accordance with Article 9(4) of 
the basic Regulation, definitive anti-dumping measures should be imposed in respect 
of imports of the product concerned at the level of the lower of the dumping and the 
injury margins, in accordance with the lesser duty rule.  

(131)  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 duties. 
They  were  also  granted  a  period  within  which  they  could  make  representations 
subsequent  to  final  disclosure.  The  comments  submitted  by  the  parties  were  duly 
considered, and, where appropriate, the findings have been modified accordingly. 

(132)  The proposed definitive anti-dumping duties are the following: 

Country 

Company 

Definitive specific AD duty 
(EUR per tonne net)  

India 

VVF Limited 

All other companies 

Indonesia 

P.T. Musim Mas 

All other companies 

Malaysia 

KL-Kepong Oleomas Sdn.Bhd. 

Emery Oleochemicals (M) Sdn. Bhd. 

Fatty Chemical Malaysia Sdn. Bhd 

All other companies 

 46,98  

86,99  

45,63  

80,34  

35,19  

61,01 

51,07  

61,01  

(133)  The  individual  company  anti-dumping  duty  rates  specified  in  this  Regulation  are 
solely  applicable  to  imports  of  the  product  concerned  produced  by  these  companies 
and  thus  by  the  specific  legal  entities  mentioned.  Imports  of  the  product  concerned 
manufactured  by  any  other  company  not  specifically  mentioned  in  Article  1  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’. 

(134)  Any claim requesting the application of these individual anti-dumping duty rates (e.g. 
following  a  change  in  the  name  of  the  entity  or  following  the  setting  up  of  new 

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production or sales entities) should be addressed to the Commission10 forthwith with 
all  relevant  information,  in  particular  any  modification  in  the  company’s  activities 
linked  to  production,  domestic  and  export  sales  associated  with,  for  instance,  that 
name  change  or  that  change  in  the  production  and  sales  entities.  If  appropriate,  this 
Regulation  will  then  be  amended  accordingly  by  updating  the  list  of  companies 
benefiting from individual anti-dumping duty rates. 

3. 

Undertakings 

(135)  One  Indian  as  well  as  one  Malaysian  exporting  producer,  together  with  its  related 
importer,  offered  a  price  undertaking  in  accordance  with  Article  8(1)  of  the  basic 
Regulation.  Both  undertaking  offers  contained  a  high  number  of  product  groups 
(determined by the chemical specification), each group subject to a different Minimum 
Import  Price  (MIP),  with  price  differences  between  the  groups  up  to  25%  for  the 
Malaysian exporter and up to 100 % for the Indian exporter. In addition, prices varied 
up  to  20%  within  the  individual  groups,  thus  posing  a  very  high  risk  of  cross-
compensation. It was also noted that the offer of the Indian exporter did not address 
the volatility of prices of the product concerned. Additional cross-compensation risks 
were identified with regards to the Malaysian exporter and its related importer in the 
Union who did not only source the product concerned from the Malaysian exporter but 
also  from  other  suppliers.  Finally,  it  would  be  difficult  for  customs  to  determine  the 
chemical  specification  of  the  product  without  individual  analysis,  thus  rendering  the 
monitoring  very  burdensome,  if  not  impracticable.  The  undertaking  offers  were 
therefore  rejected.  Following  the  proposal  to  change  the  form  of  the  measures,  one 
exporting  producer  amended  its  undertaking  offer  suggesting  an  average  MIP  for  all 
product  groups  and  claiming  that  there  will  be  no  risk  of  cross-compensation  any 
longer.  The  other  exporting  producer  simply  upheld  its  offer.  However,  given  the 
number  of  product  types  and  the  price  variation  between  them,  a  MIP  could 
completely compromise the effectiveness of the measures. Furthermore, the structure 
of  the  companies  and  of  their  offers  as  outlined  above  still  constitutes  an  obstacle 
towards  accepting  an  undertaking.  The  reporting  and  price  regime  suggested  by  one 
exporter does not address those concerns and in any case would render the monitoring 
very burdensome, if not impracticable. Consequently, the undertaking offers cannot be 
accepted.  

4. 

Definitive collection of provisional anti-dumping duties 

(136)  In view of the magnitude of the dumping margins found and in the light of the level of 
the  injury  caused  to  the  Union  industry,  it  is  considered  necessary  that  the  amounts 
secured  by  way  of  the  provisional  anti-dumping  duty,  imposed  by  the  provisional 
Regulation, 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.  

10 

European  Commission,  Directorate-General 
Bruxelles/Brussel, BELGIUM. 

for  Trade,  Directorate  H,  NERV-105,  1049 

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HAS ADOPTED THIS REGULATION: 

Article 1 

1.  A  definitive  anti-dumping  duty  is  hereby  imposed  on  imports  of  saturated  fatty  alcohols 
with  a  carbon  chain  length  of  C8,  C10,  C12,  C14,  C16  or  C18  (not  including  branched 
isomers) including single saturated fatty alcohols (also referred to as ‘single cuts’) and blends 
predominantly  containing  a  combination  of  carbon  chain  lengths  C6-C8,  C6-C10,  C8-C10, 
C10-C12 (commonly categorised as C8-C10), blends predominantly containing a combination 
of  carbon  chain  lengths  C12-C14,  C12-C16,  C12-C18,  C14-C16  (commonly  categorised  as 
C12-C14) and blends predominantly containing a combination of carbon chain lengths C16-
C18,  currently  falling  within  CN  codes  ex  2905  16  85,  2905  17  00,  ex  2905  19  00  and  ex 
3823 70 00 (TARIC codes 2905 16 85 10, 2905 19 00 60, 3823 70 00 11 and 3823 70 00 91) 
and originating in India, Indonesia, and Malaysia.  

2.  The  rate  of  the  definitive  anti-dumping  duty of  the  product  described  in  paragraph  1  and 
produced by the companies below shall be as follows: 

Country 

Company 

India 

VVF Ltd, Taloja, 
Maharashtra 

All other companies 

Indonesia 

P.T. Musim Mas, Tanjung 
Mulia, Medan, Sumatera 
Utara 

All other companies 

Malaysia 

KL-Kepong Oleomas Sdn. 
Bhd, Petaling Jaya, Selangor 
Darul Ehsan 

Definitive AD 
duty (EUR per 
tonne net)  

TARIC 
Additional Code 

46,98  

B110 

86,99  

45,63  

80,34  

35,19  

B999 

B112 

B999 

B113 

Emery Oleochemicals (M) 
Sdn. Bhd., Kuala Langat, 
Selangor 

Fatty Chemical Malaysia 
Sdn. Bhd. Prai, Penang 

All other companies 

61,01 

B114 

51,07  

61.01  

B117 

B999 

3. 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 value 
pursuant to Article 145 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying 
down  provisions  for  the  implementation  of  Council  Regulation  (EEC)  No  2913/92 

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establishing the Community Customs Code11, the amount of anti-dumping duty, calculated on 
the  amounts  set  above,  shall  be  reduced  by  a  percentage  which  corresponds  to  the 
apportioning of the price actually paid or payable. 

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

Article 2 

The amounts secured by way of the provisional anti-dumping duty pursuant to Commission 
Regulation (EU) No 446/2011 on imports of certain fatty alcohols and their blends originating 
in  India,  Indonesia,  and  Malaysia  shall  be  definitively  collected.  The  amounts  secured  in 
excess of the definitive rates of the anti-dumping duty 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 3 

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

Done at Brussels,  

For the Council 

The President 

[…] 

11 

OJ L 253, 11.10.1993, p. 1. 

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