Proposal for a COUNCIL IMPLEMENTING REGULATION imposing a definitive anti-dumping duty on imports of bioethanol originating in the United States of America
Date: 2013-01-22
Institutions: European Commission
Subjects: United States, anti-dumping duty, biofuel, import (EU), originating product

EUROPEAN 
COMMISSION 

Brussels, 22.1.2013  
COM(2013) 14 final 

2013/0009 (NLE) 

Proposal for a 

COUNCIL IMPLEMENTING REGULATION 

imposing a definitive anti-dumping duty on imports of bioethanol originating in the 
United States of America 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

Grounds for and objectives of the proposal 

This  proposal  concerns  the  application  of  Council  Regulation  (EC)  No  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 bioethanol originating in the United States of America. 

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 not imposed in this case.  

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. 

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 22 February 
2013. 

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. 

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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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2013/0009 (NLE) 

Proposal for a 

COUNCIL IMPLEMENTING REGULATION 

imposing a definitive anti-dumping duty on imports of bioethanol originating in the 
United States of America 

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(4) thereof,  
Having regard to the proposal from the European Commission (‘the Commission’) after 
consulting the Advisory Committee,  

Whereas: 

1. 

1.1. 

(1) 

(2) 

(3) 

1.2. 

(4) 

PROCEDURE 

Initiation 

On 25 November 2011, the European Commission ('the Commission') announced, by 
a  notice  ('NOI')  published  in  the  Official  Journal  of  the  European  Union2,  the 
initiation  of  an  anti-dumping  proceeding  ('AD  proceeding'  or  'the  proceeding')  with 
regard  to  imports  into  the  Union  of  bioethanol  originating  in  the  United  States  of 
America ('USA' or 'the country concerned'). 

On  the  same  day,  the  Commission  announced,  by  a  notice  published  in  the  Official 
Journal  of  the  European  Union3,  the  initiation  of  an  anti-subsidy  proceeding  with 
regard to imports into the Union of bioethanol originating in the USA and commenced 
a  separate  investigation  ('AS  proceeding').  This  proceeding  will  be  terminated  on  21 
December 2012 without imposition of countervailing measures. 

The AD proceeding was initiated following a complaint lodged on 12 October 2011 by 
the  European  Producers  Union  of  Renewable  Ethanol  Association  (ePURE)  ('the 
complainant') on behalf of producers representing more than 25%, of the total Union 
production of bioethanol. The complaint contained prima  facie evidence of  dumping 
of the said product and of material injury resulting therefrom, which was considered 
sufficient to justify the initiation of an investigation. 

Parties concerned by the proceeding 

The  Commission  officially  advised  the  complainant,  other  known  Union  producers, 
the  exporters/producers  in  the  USA,  importers,  and  other  parties  known  to  be 
concerned,  and  the  authorities  of  the  USA  of  the  initiation  of  the  proceeding. 

1 
2 
3 

OJ L 343, 22.12.2009, p. 51. 
OJ C 345, 25.11.2011, p. 7. 
OJ C 345, 25.11.2011, p. 13. 

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Interested parties were given an opportunity to make their views known in writing and 
to request a hearing within the time limit set in the notice of initiation.  

(5) 

All interested parties, who so requested and showed that there were particular reasons 
why they should be heard, were granted a hearing. 

1.2.1. 

Sampling of exporters/producers in the USA 

(6) 

(7) 

In view of the potentially large number of exporters/producers in the USA, sampling 
was  envisaged  in  the  notice  of  initiation  in  accordance  with  Article  17  of  the  basic 
Regulation. 

In  order  to  enable  the  Commission  to  decide  whether  sampling  would  be  necessary 
and  if  so,  to  select  a  sample,  exporters/producers  in  the  USA  were  asked  to  make 
themselves  known  within 15 days from the date of the initiation of the investigation 
and to reply to a sampling form providing, as specified in the notice of initiation, basic 
information on their activities related to production and sales of bioethanol during the 
period  from  1  October  2010  to  30  September  2011  ('the  investigation  period'  or  'the 
IP').  

(8) 

The  relevant  US  authorities  were  also  consulted  for  the  selection  of  a  representative 
sample. 

(9)  More than 60 exporters/producers made themselves known and provided the requested 

information within the 15 days deadline.  

(10) 

In  accordance  with  Article  17  of  the  basic  Regulation,  the  Commission  selected  a 
sample  based  on  the  largest  representative  quantity  of  exports  of  bioethanol  to  the 
Union which could reasonably be investigated within the time available. The sample 
selected consisted of six US bioethanol producers (US sample). 

(11)  During the investigation it was found that the production of one producer included in 
the US sample was not exported to the Union in the IP. This company was therefore 
removed from the sample. 

(12)  Despite the fact that the other sampled producers mentioned exports of bioethanol to 
the Union in their sampling form, the investigation showed that none of them exported 
bioethanol  to  the  Union  market.  In  fact  they  were  selling  domestically  to  unrelated 
traders/blenders which then blended it with gasoline and resold it domestically and for 
export in particular to the Union. During the investigation on-spot, it became clear that 
in fact, contrary to the impression that had resulted from the information provided by 
the  sampled  US  producers  in  their  sampling  forms,  those  producers  were  not 
systematically  aware  whether  or  not  their  production  was  intended  for  the  Union 
market or any other destination including the US market and had no knowledge of the 
traders/blenders sales prices. In effect, this means that the US producers of bioethanol 
are not the exporters of the product concerned to the Union. The exporters are in fact 
the  traders/blenders.  Hence,  the  data  collected  and  verified  at  the  level  of  the  US 
sample  at  provisional  stage  did  not  allow  establishing  whether  or  not  US  bioethanol 
was exported at dumped prices to the Union during the IP. 

(13)  No anti-dumping measures could thus be imposed at that time.  

(14) 

In  order  to  identify  the  exports  of  bioethanol  to  the  Union,  the  US  sample  relied 
mainly  on  data  provided  to  them  by  the  unrelated  blenders/traders  which  were  not 
investigated  at  provisional  stage.  Although  at  provisional  stage  one  such  trader 
cooperated  in  the  investigation  and  provided  additional  data,  that  data  was  not 

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sufficient  to  establish  precisely  and  reliably  the  necessary  data  for  the  purpose  of 
calculating dumping margins. 

(15) 

In  order  to  complete  the  dumping  investigation,  it  was  thus  considered  necessary  to 
rather  base  it  on  the  data  of  traders  and  blenders  which  were  actually  exporting  the 
product concerned to the Union.  

(16)  Dumping  questionnaires  were  thus  sent  to  the  eight  largest  US  traders/blenders  that 
were  identified  during  the  investigation  of  the  US  sample.  These  traders/blenders 
represent  over  90%  of  total  exports  of  bioethanol  to  the  Union.  Two  agreed  to 
cooperate in the investigation and their exports represent about 51% of total exports of 
bioethanol to the Union during the IP. 

1.2.2. 

Sampling of Union producers 

(17) 

(18) 

In view of the potentially large number of Union producers, sampling was envisaged 
in the notice of initiation in accordance with Article 17 of the basic Regulation.  

In the notice of initiation the Commission announced that it had provisionally selected 
a sample  of Union  producers (EU sample). This sample consisted of five companies 
and groups, out of the 19 Union producers that were known prior to the initiation of 
the  investigation.  The  sample  was  selected  on  the  basis  of  the  production  volume  of 
bioethanol  during  the  investigation  period  and  the  location  of  the  known  producers. 
This sample represented 48% of the total estimated Union production during the IP.  

(19)  But the investigation revealed that the groups included in the EU sample consisted of a 
large number of companies or single entities producing and selling the like product. In 
this case it would have meant to investigate 13 companies and it was not possible to 
investigate  all  of  them  given  the  time  available  for  the  investigation.  It  was  thus 
decided to re-examine the data available for the selection of a representative sample. It 
was  considered  that  the  sample  should  be  based  on  the  largest  individual  producing 
entities in the Union and in the groups taking also into account a certain geographical 
spread amongst Union producers.  

(20)  Hence,  a  definitive  EU  sample  of  six  individual  producers  was  ultimately  selected 
based  on  representativity  in  terms  of  the  production  and  sales  volume  of  bioethanol 
during the IP and the geographical location of the producer. These producers located 
in Belgium, the Netherlands, France, UK, Sweden and Germany represent 36% of the 
total  estimated  Union  production  and  44%  of  the  total  production  reported  by  the 
companies that submitted data for the selection of a sample. This sample was deemed 
to be representative for the examination of possible injury to the Union industry.  

(21) 

Interested parties were given the opportunity to comment on the appropriateness of the 
choice of the sample.  

(22)  Some  parties  claimed  that  the  EU  sample  was  less  representative  than  the  one 
originally  selected  which  included  complete  groups  of  companies.  In  their  view,  an 
objective  analysis  of  the  situation  of  the  Union  industry  could  only  be  made  by 
including  all  companies  which  are  part  of  groups  in  the  sample.  They  alleged  in 
particular that costs and revenues could be allocated to certain companies of a group 
which are not visited and may thus not be reflected in the injury analysis.  

(23) 

In this respect it should be noted that the Commission duly considered and examined 
the  data  provided  by  all  sampled  and  non-sampled  companies  and  in  particular  the 
companies belonging to groups, in order to ensure that all costs and revenues involved 

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in the production and sale by the companies selected in the sample had been fully and 
correctly reflected in the injury analysis.  

(24)  Some parties contested the inclusion in the EU sample of Union producers which were 
in a start-up phase. They also claimed that one company with important idle capacity 
in  2011,  located  in  a  Member  State  that  did  not  implement  the  Renewable  Energies 
Directive  ('RED'),  should  not  have  been  included  in  the  sample.  It  was  also  claimed 
that in case these companies would be finally included in the sample, the Commission 
should adjust their data in order to account for these extraordinary circumstances. 

(25) 

It  is  considered  that  the  fact  that  companies  recently  started  or  resumed  operations 
does  not  preclude  them  from  being  part  of  the  sample.  The  inclusion  of  these 
companies is not in contravention with the criteria for the selection of a sample as laid 
down in Article 17 of the basic Regulation. With regard to the adjustment of their data, 
parties  did  not  provide  any  specific  issue  or  substantiated  evidence  to  support  their 
claim, nor a basis on how to make the claimed adjustment.  

(26)  Furthermore, the investigation did not reveal any cost, such as for example accelerated 
depreciations, which should be adjusted to correct any distortion due to the start-up of 
activity. Hence, this claim is rejected.  

(27)  Some parties also disputed the fact that one company that was provisionally selected 
in  the  EU  sample  and  located  in  a  Member  State  with  high  consumption  and 
production of bioethanol was no longer part of the EU sample. They claimed that this 
economic situation of this company was good and suggested that this was the reason 
for its exclusion from the sample. They further argued that the selection of the sample 
had been skewed towards finding injury. According to these parties the Commission 
should have sent so called mini-questionnaires to all producers to collect the relevant 
data in order to select a sample.  

(28)  With regard to the sending of mini-questionnaires, it should be noted that, prior to the 
selection  of  the  sample,  the  Commission  requested  information  from  all  Union 
producers known to be concerned in order to collect the relevant data for the purpose 
of the selection of a sample. As mentioned in point 5.2.1 of the NOI, this information 
was  available  as  from  the  date  of  the  initiation  of  the  investigation  in  the  file  for 
inspection by interested parties and was not such as to show the state of the economic 
situation  of  the  respondents.  Hence,  the  Commission  had  sufficient  relevant 
information  at  its  disposal  to  select  a  representative  sample  respecting  the  criteria  of 
Article 17 of the basic Regulation but could not make any result-oriented selection of 
companies. The above claims were therefore rejected. 

(29)  Finally,  it  was  claimed  that  the  sample  should  have  included  companies  producing 
bioethanol from sugar beet since production from this raw material can be much more 
profitable than production from, for example, wheat. Even though this claim was not 
substantiated,  the  information  available  has  shown  that  bioethanol  produced  from 
sugar beet represents only a minor part of total Union production, around 12% in 2011 
and  that  two  of  the  companies  included  in  the  sample  partially  use  sugar  beet  as 
feedstock to produce bioethanol. Therefore, the claim is rejected.  

(30)  Based  on  the  above,  it  is  considered  that  the  sample  selected  as  explained  above  for 

the purpose of the injury analysis is representative for the Union industry. 

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1.2.3. 

Sampling of unrelated importers 

(31) 

In  view  of  the  potentially  large  number  of  importers  involved  in  the  proceeding, 
sampling  was  envisaged  for  importers  in  the  notice  of  initiation  in  accordance  with 
Article 17 of the basic Regulation. 

(32)  Only three importers provided the requested information and agreed to be included in 
the  sample  within  the  deadline  set  in  the  notice  of  initiation.  In  view  of  the  limited 
number of cooperating importers, sampling was not deemed to be necessary. 

1.2.4.  Questionnaire replies and verifications 

(33)  The  Commission  sent  questionnaires  to  all  parties  known  to  be  concerned. 
Questionnaires  were  thus  sent  to  the  sampled  USA  exporters/producers,  the  sampled 
Union  producers,  the  three  cooperating  unrelated  importers  in  the  Union  and  to  all 
users known to be concerned by the investigation. 

(34)  Replies were received from the sampled USA exporters/producers, the sampled Union 

producers, two unrelated importers and four users.  

(35)  The Commission sought and verified all the information provided by interested parties 
and  deemed  necessary  for  the  purposes  of  a  definitive  determination  of  dumping, 
resulting injury and Union interest.  

(36)  Verification visits were carried out at the premises of the following companies: 

Exporters/producers in the USA 

•  - Marquis Energy LLC, Hennepin, Illinois 

•  - Patriot Renewable Fuels LLC, Annawan, Illinois 

•  - Platinum Ethanol LLC, Arthur, Iowa 

•  - Plymouth Energy Company LLC, Merrill, Iowa 

•  - POET LLC, Wichita, Kansas and Sioux Falls, South Dakota 

Unrelated trader in the USA 

•  - Bio Urja Trading LLC, Houston, Texas 

Related trader in Switzerland 

•  - Cargill International SA, Geneva 

Producers in the Union 

•  - Abengoa Energy Netherlands B.V., Rotterdam, the Netherlands 

•  - BioWanze, S.A. Wanze, Belgium 

•  - Crop Energies Bioethanol GmbH, Mannheim, Germany 

•  - Ensus, Yarm, United Kingdom 

•  - Lantmännen Energi / Agroetanol, Norrkoping, Sweden 

•  - Tereos BENP, Lillebonne, France 

Unrelated importers in the Union 

•  - Shell Trading Rotterdam B.V., Rotterdam, the Netherlands 

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•  - Greenergy Fuels Limited, London, United Kingdom 

Users in the Union 

•  - Shell Nederland Verkoopmaatschappij B.V. Rotterdam, the Netherlands 

1.3. 

Investigation period and period considered 

(37)  The investigation of dumping and injury covered the period from 1 October 2010 to 30 
September  2011.  The  examination  of  trends  relevant  for  the  assessment  of  injury 
covered the period from January 2008 to the end of the IP (‘the period considered’). 

2. 

PRODUCT CONCERNED AND LIKE PRODUCT 

2.1. 

Product concerned 

(38)  The product concerned is bioethanol, sometimes referred to as ‘fuel ethanol’, i.e. ethyl 
alcohol produced from agricultural products (as listed in Annex I to the Treaty on the 
Functioning  of  the  European  Union),  denatured  or  undenatured,  excluding  products 
with a water content of more than 0,3 % (m/m) measured according to the standard EN 
15376,  but  including  ethyl  alcohol  produced  from  agricultural  products  (as  listed  in 
Annex I to the Treaty on the Functioning of the European Union) contained in blends 
with gasoline with an ethyl alcohol content of more than 10 % (v/v) originating in the 
USA, currently falling within CN codes ex 2207 10 00, ex 2207 20 00, ex 2208 90 99, 
ex 2710 12 21, ex 2710 12 25, ex 2710 12 31, ex 2710 12 41, ex 2710 12 45, ex 2710 
12 49, ex 2710 12 51, ex 2710 12 59, ex 2710 12 70, ex 2710 12 90, ex 3814 00 10, ex 
3814 00 90, ex 3820 00 00 and ex 3824 90 97.  

(39)  Bioethanol can be produced from various agricultural feedstocks, such as sugar cane, 
sugar  beet,  potatoes,  manioc  and  corn.  In  the  USA  a  distinction  on  the  basis  of  the 
various feedstocks is made, as described below:  

(a)  The  Conventional  Biofuel  (mainly  produced  from  corn  feedstock  and  commonly  called 
corn ethanol)  which  is defined  as a  renewable fuel derived from corn  starch produced from 
facilities  that  commenced  construction  after  the  date  of  enactment  of  the  Energy 
Independence  and  Security  Act  in  December  20074  and  which  must  achieve  in  the  future  a 
20%  reduction  in  greenhouse  gas  ('GHG')  emissions  compared  to  baseline  lifecycle  GHG 
emissions of gasoline and diesel.  

(b)  The  Advanced  Biofuel  which  is  defined  as  a  renewable  fuel  other  than  ethanol  derived 
from corn starch, which is derived from renewable biomass and has lifecycle GHG emissions, 
as determined by the Energy Policy Act ('EPA') Administrator, that are at least 50% less than 
baseline  GHG  emissions.  This  term  includes  "cellulosic  biofuels"  such  as  bioethanol  and 
"biomass-based  diesel."  The  schedule  for  Advanced  Biofuels  includes  the  schedule  for 
Cellulosic Biofuels, Biomass-Based Diesel, and Undifferentiated Advanced Biofuels. 
(40)  More specifically, Cellulosic Biofuel5 is defined as a renewable fuel derived from any 
cellulose, hemicellulose, or lignin that is derived from renewable biomass and that has 
lifecycle  GHG  emissions,  as  determined  by  the  EPA  Administrator,  that  are  at  least 
60%  less  than  the  baseline  lifecycle  GHG  emissions.  Cellulosic  biofuels  include 
cellulosic bioethanol. There are researches and pilot projects largely supported by the 
US Federal Government for producing Advanced Biofuels and in particular cellulosic 
bioethanol, produced in particular out of agricultural and forestry wastes. According to 

4 

5 

See www.ethanol.org – RFS (Renewable fuels standard) under the Energy Independence and Security 
Act of 2007.  
See US Internal Revenue Code (IRC) – sec. 40(b)(4) point E. 

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US officials and publicly available data6, the production of this type of bioethanol will 
reach  around  4  billion  litres  in  2014  and  more  than  50  billion  litres  by  2021. 
Production of cellulosic bioethanol was negligible in the IP.  

(41)  During the investigation period up to  now  corn  has  been  the  main  feedstock  used  in 

the USA, while the main feedstock used in the Union is wheat. 

(42)  The  investigation  showed  that  bioethanol  is  generally  sold  in  its  pure  form  to 
blenders/traders  which  blend7  it  with  gasoline  in  particular  to  produce  high  level 
blends  which  are  exported  or  sold  on  the  domestic  market  for  further  blending  and 
used  for  fuel  consumption.  Blending  is  not  a  very  complex  operation  and  may  be 
accomplished by mixing the products in special tanks adding the desired percentages 
of bioethanol and gasoline.  

(43)  To  identify  the  various  types  of  bioethanol,  bioethanol  blends  or  mixtures  in  use 
around  the  world,  ethanol  fuel  mixtures  have  "E"  numbers  which  describe  the 
percentage  of  ethanol  fuel  in  the  mixture  by  volume.  For  example,  E85  is  85% 
anhydrous  ethanol  and  15%  gasoline.  Low  ethanol  blends,  from  E5  to  E25,  are  also 
known  as  gasohol,  though  internationally  the  most  common  use  of  the  term  gasohol 
refers  to  the  E10  blend.  Blends  of  E10  or  less  have  been  used  in  more  than  twenty 
countries around the world by 2011, led by the USA, where almost all retail gasoline 
sold in 2010 was blended with 10% of bioethanol.  

(44)  The  investigation  showed  that  all  types  of  bioethanol  are  considered  to  be  biofuels 
under  the  current  National  Renewable  Fuel  Standard  program  (RFS1)  established 
under  the  Energy  Policy  Act  of  2005,  which  amended  the  Clean  Air  Act  by 
establishing the first national renewable fuel standard. The U.S. Congress gave the US 
Environmental Protection Agency (EPA) the responsibility to coordinate with the US 
Department of Energy, the US Department of Agriculture, and stakeholders to design 
and implement this program.  

(45)  As a result of their energy policy the USA became the largest worldwide producer of 
bioethanol  as  from  2005  accounting  for  57,5%  of  global  production.  In  2009,  the 
requirements under the EPA ensured that at least 11 billion US gallons of renewable 
fuels were produced, in particular to keep up with the targets established by the Energy 
Independence and Security Act of 2007. The large scale production also allowed US 
producers to become exporter of bioethanol to other markets, including the Union. 
(46)  Based  on  official  sources,  market  and  publicly  available  information8,  all  types  of 
bioethanol  and  bioethanol  in  blends,  namely  mixtures  of  bioethanol  with  mineral 
gasoline as explained in recital (43) above, which are produced in the USA and sold 
either in the USA or exported are considered to be bioethanol fuels and are part of a 
legislative package concerning energy efficiency and renewable energy and alternative 
fuels in the USA.  

6 

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8 

See www.ethanol.org – RFS (Renewable fuels standard) under the Energy Independence and Security 
Act of 2007.  
The investigation showed that to avail the alcohol mixture credit, as defined in Sec. 40(b)(3) of the IRC 
in the USA it sufficed to blend neat bioethanol with as little as 0,1% of gasoline.  
For instance (a) The information published by the American Coalition for Ethanol (ACE) on the web 
(b) the Energy Policy Act (EPA) of 2005, in particular P.L. 109-58 (c) the Energy Independence and 
Security  Act  of  2007  (P.L.  110-140,  H.R.6)  which  amended  and  increased  the  Renewable  Fuels 
Standard  (RFS)  requiring 9 billion gallons of  renewable fuels use  in  2008  and 13,9 billion  gallons  in 
2011, (d) fact sheets issued by the US Department of Energy under the Clean cities actions, etc. 

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(47) 

It has been found that all types of bioethanol and bioethanol in blends covered by this 
investigation,  despite  possible  differences  in  terms  of  feedstock  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 minor variations in the product concerned do not alter its basic definition, 
its characteristics or the perception that various parties have of it. 

(48)  Some  parties  claimed  that  the  definition  of  the  product  concerned  was  not  clear,  in 
particular  because  it  did  not  allow  for  distinguishing  the  bioethanol  for  fuel 
applications  from  that  destined  for  other applications.  Hence,  they  claimed  that  the 
investigation should cover ethanol for all uses and ethanol from all sources, including 
synthetic ethanol that competes with bioethanol for industrial use.  

(49)  Another  party  claimed  the  opposite,  namely  that  the  investigation  should  only  cover 
bioethanol  for  fuel  applications  and  that  bioethanol  for  industrial  use  should  thus  be 
excluded. 

(50) 

(51) 

In this context, it is noted that the product concerned should primarily be defined on 
the basis of its basic physical, technical and chemical characteristics and not its uses or 
applications. A product which has various applications may indeed have the same or 
similar  basic  characteristics  notwithstanding 
in  certain 
circumstances it may be necessary to deepen the analysis of the product definition and 
the product scope in the light of the specificity of the industry and the market.  

its  further  use  and 

in 

In  the  present  case,  it  was  clear  that  the  notice  of  initiation  did  not  intend  to  cover 
the  product  definition.  Synthetic  ethanol  has  different 
synthetic  ethanol 
characteristics than bioethanol and does not correspond to the above criteria linked to 
the  definition  of  the  product  concerned.  There  is  no  producer  that  focusses  on  the 
production  of  that  product  which  took  part  in  this  investigation.  Therefore,  synthetic 
ethanol cannot be included in the definition of the product concerned and is outside the 
scope  of  the  investigation.  Contrary  to  the  suggestion  made  by  some  parties,  this 
clarification  does  not  lead  to  a  change  in  the  scope  of  the  investigation  or  the 
definition of the product concerned and did not have any impact on the quality of the 
data used. 

(52)  Bioethanol for fuel application and bioethanol destined to other applications may have 
similar  characteristics.  However,  during  the  investigation  dumping  was  examined  at 
the level of USA operators which produced or blended bioethanol for fuel application, 
namely  bioethanol  to  be  included  in  a  fuel  mixture.  Similarly,  the  investigation  of 
Union producers focussed on bioethanol destined to fuel applications and not for other 
uses. Hence, bioethanol destined to applications other than fuel should not be covered 
by the scope of this investigation. 

(53)  The  importers  which  will  not  use  the  imported  USA  bioethanol  for  fuel  application 
have  the  possibility  to  make  a  declaration  subject  to  the  end  use  provisions  as 
established  by  the  Implementing  provisions  embedded  in  Articles  291  to  300  of  the 
Union Customs Code9. 

2.2. 

(54) 

Like product 

It  was  found  that  bioethanol  manufactured  by  the  Union  industry  and  sold  on  the 
Union market have similar basic physical, chemical and technical characteristics when 
compared to bioethanol exported to the Union from the USA. 

9 

Commission Regulation (EEC) 2454/93 of 02.07.1993  

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11 

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(55)  As  described  in  recital  (39)  above,  bioethanol  can  be  produced  from  various 
feedstocks. However, the investigation did not point to the fact that the feedstock used 
would lead into any differences in the characteristics of the end-product. It was found 
that the product concerned produced in the USA in particular from corn and exported 
to the Union is interchangeable with that produced in particular from wheat and sold in 
the Union by Union producers. In addition, there are no significant differences, if any, 
in  the  uses  and  the  perception  by  operators  and  users  in  the  market  concerning 
bioethanol.  

(56) 

It  is  therefore  confirmed  that  bioethanol  produced  and  sold  in  the  Union  and  the 
product concerned exported from the USA should be considered to be alike within the 
meaning of Article 1(4) of the basic Regulation.  

(57)  Some of the sampled US producers claimed that the bioethanol produced and sold on 
the USA market is not like the product concerned, since it does not strictly correspond 
to  the  wording  of  the  product  description  as  laid  out  in  the  notice  of  initiation. 
Effectively, the types bioethanol sold on the USA market have a water content above 
the threshold of 0,3% and corresponds to the USA standard (ASTM) rather than EN 
15376. 

(58)  However,  the  investigation  showed  that  bioethanol  produced  for  sales  on  the  US 
market largely shares the same basic physical, chemical and technical characteristics 
as  the  product  concerned.  Article  1(4)  of  the  basic  Regulation  stipulates  that  a  like 
product should not necessarily be alike in all respects to the product concerned, but it 
could  be  a  product  that  although  not  alike  in  all  respects,  has  characteristics  closely 
resembling those of the product concerned. This is the case for the bioethanol sold in 
the US market and the bioethanol exported to the Union. There are precedents where 
products  were  considered  to  be  like  the  product  concerned  in  spite  of  certain 
differences10.  

(59) 

It was therefore decided to reverse the provisional finding and consider that the ASTM 
bioethanol sold in the US market is a like product to the product concerned within the 
meaning of Article 1(4) of the basic Regulation.  

3. 

DUMPING 

3.1. 

Introduction 

(60)  As explained in recitals (6) to (16) above, in order to investigate the possible existence 
of dumping, the investigation covered producers of bioethanol, on the one hand, and 
traders/blenders which were exporting the product concerned to the Union market, on 
the other hand. 

(61)  Pursuant to Article 9(5) of the basic Regulation, the regulation imposing the duty shall 
specify the duty for each supplier or if that is impracticable, the duty for the supplying 
country concerned.  

(62)  Certain  producers  claimed  that  it  was  possible  to  identify  and  trace  their  products 
when sold to US operators for export, in particular to the Union. They referred to the 

10 

For  instance,  the  Council  Regulation on  persulphates  holding  that  the Chinese product  was  "like"  the 
EU one in spite of quality differences in purity and iron content. OJ L 308 of 21.12.1995, p. 61, recital 
10.  See  also  the  ruling  of  the  General  Court  in  T-2/95,  Industrie  des  Poudres  Spheriques,  where  the 
Court held that the institutions could lawfully reach the conclusion that Chinese and Russian calcium 
metal  were  "like"  EU  calcium  metal,  in  spite  of  differences  in  oxygen  content  which  made  the  EU 
product unsuitable for a particular specific application, representing 11% of EU consumption (T-2/95 
paras. 202-221). This point was not challenged on appeal (C-458/98 P).  

EN 

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(63) 

certification  process  foreseen  by  the  RED  but  they  could  not  in  particular  make  the 
link between their sales in the US market and the exports made by other operators to 
the EU. As mentioned in recital (12) above and (63) below, these producers were also 
not aware of the level of the export price to the Union.  

In  the  present  case  it  was  found  that  the  structure  of  the  bioethanol  industry  and  the 
way the product concerned was produced and sold in the US market and exported to 
the  Union,  made  it  impracticable  to  establish  individual  dumping  margins  for  US 
producers.  More  specifically,  the  producers  in  the  US  sample  did  not  export  the 
product  concerned  to  the  Union  and  the  investigated  traders/blenders  sourced 
bioethanol from various producers, blended it and sold it in particular for export to the 
Union, hence, contrary to allegations made by the above parties, it was not possible to 
trace  all  purchases  individually  and  compare  the  normal  values  with  the  relevant 
export prices and it is not possible to identify the producer at the moment of the export 
to  the  Union.  In  other  words,  each  shipment  made  to  the  EU  contains  bioethanol 
produced  by  various  US  producers  in  the  US  and  not  only  by  the  US  sample. 
Moreover, the investigation also showed that the price level at which the US sample 
charged their US customers in the USA was not in line with the actual price paid or 
payable for the product concerned when exported to the Union.  

(64)  Therefore, it is considered that a countrywide dumping margin should be established.  

3.2. 

Normal value 

(65)  For  the  determination  of  normal  value  in  accordance  with  Article  2(2)  of  the  basic 
Regulation, the Commission first established whether the domestic sales of the product 
concerned  by  the  two  co-operating  traders/blenders  to  independent  customers  were 
made in representative volumes, i.e. whether the total volume of such sales represented 
at least 5% of the total export sales volume to the Union during the IP. 

(66)  Given that the sales of the like product in the domestic market were made in sufficient 
quantity, normal value was determined on the basis of the price paid or payable to the 
two aforementioned traders/blenders, in the ordinary course of trade, by independent 
customers in the USA. 

3.3. 

Export price 

(67)  The cooperating traders/blenders provided data which allowed establishing an export 
price on the basis of their prices that are actually paid or payable in accordance with 
Article 2(8) of the basic Regulation. For those transactions for which the imports into 
the  Union  were  made  through  a  related  trading  company,  the  export  price  was 
constructed  on  the  basis  of  the  first  resale  price  of  the  related  trader  to  independent 
customers in the Union, pursuant to Article 2(9) of the basic Regulation. 

(68)  As regard the sales made via the related trader located in Switzerland, selling, general 
and administrative costs (SG&A) and profit were not deducted from the export price 
as they were considered not to be costs between importation and resale in the Union. 
The investigation showed that the principal activity of the related trader consisted of 
cash  management  for  the  "sugar"  business  unit  to  which  biofuels  belong  and  the 
hedging  of  the  risks  inherent  in  the  agricultural  business  by  concluding  derivative 
contracts on both over the counter and organised financial markets. 

(69)  Some  US  producers  claimed  that  it  is  the  institutions  constant  practice  to  take  the 
exporter's  sales  price  to  the  first  independent  customer  as  the  export  price  to  use  for 
dumping calculations. In this case, this price would be the US producers' sales price to 
US unrelated traders/blenders. However, as mentioned in recitals (62) and (63) above, 

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13 

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none of the US producers of bioethanol exported the product concerned to the Union 
and  they  were  not  aware  of  the  level  of  the  export  price  to  the  EU.  Hence,  their 
domestic  price  cannot  be  used  as  it  is  not  an  export  price  paid  or  payable  for  the 
product concerned in the Union. Their claim cannot therefore be accepted. 

3.4. 

Comparison  

(70)  The comparison between the weighted average normal value and the weighted average 
export  price  per  product  type  established  for  the  cooperating  traders/blenders  was 
made on an ex-works basis, taking into account, in accordance with Article 2(10) of 
the basic Regulation, differences in factors which were demonstrated to affect prices 
and price comparability. One trader/blender claims that the data on domestic sales was 
not representative. As the trader/blenders failed to provide data on all domestic sales, 
the calculation is based on the ones provided in the questionnaire and during the on-
spot visit. 

(71)  One  trader/blender  argues  that  the  calculation  of  the  domestic  sales  price  should  be 
based on spot market data from the NYMEX. The Commission considers that verified 
data from the two trader/blenders is more reliable. 

(72)  For this purpose, due allowance in the form of adjustments was made for differences 
in  transport,  insurance,  handling,  loading  and  ancillary  costs  where  applicable  and 
justified.  

(73)  The  product  concerned  and 

the 

the  particularity 

like  product  present 

that 
traders/blenders  have  received  a  subsidy  mainly  in  the  form  of  excise  tax  credits 
during the IP on their sales of bioethanol blends. The method used to establish normal 
value and export price is a method where the actual sales prices, domestic and export 
of the said traders/blenders are fully taken into account. Hence, a comparison of sales 
made by traders/blenders in the US market and export prices of traders/blenders to the 
EU,  in  order  to  calculate  the  level  of  dumping  on  the  product  concerned,  eliminates 
any  possible  impact  the  subsidy  may  have  had  on  prices,  since  the  subsidy  equally 
affected both domestic and export sales during the IP. One trader/blender claimed that 
it had not received a subsidy for its domestic sales. However, it fails to provide proof 
for this claim; the claim is also difficult to reconcile with information provided by the 
US authorities on the use of the subsidy.  

3.5. 

Dumping 

(74)  As provided for in Article 2(11) of the basic Regulation, the weighted average normal 
value  by  product  type  was  compared  to  the  weighted  average  export  price  of  the 
corresponding product type of the product concerned. Based on that comparison, the 
cooperating  unrelated  traders/blenders  were  found  to  have  engaged  in  dumping 
practices. 

(75)  The  weighted  average  dumping  margin  of  9,5%  was  established  based  on  the 
aggregated  data  of  the  cooperating  traders/blenders,  and  represents  the  countrywide 
dumping margin for the USA. 

(76)  Some  of  the  US  producers  included  in  the  sample  claimed  that  in  the  case  of 
imposition  of  definitive  anti-dumping  measures,  they  expected  to  obtain  their 
individual  duty  margin.  In  the  light  of  the  contents  of  recitals  (6)  to  (16)  and  the 
reasoning  in  recitals  (60)  to  (64)  above,  this  claim  cannot  be  accepted  as  the 
investigation  confirmed  that  for  these  operators,  in  particular  because  they  did  not 
have any exports to the Union during the IP, it was not possible to trace their products 
when exported to the Union and they had generally no idea of the timing of the export 

EN 

14 

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and  of  the  price  paid  or  payable  by  Union  importers,  hence  an  export  price  and  a 
dumping margin could not be reliably established for these producers.  

(77)  Certain producers requested more information on the dumping calculations established 
for the two cooperating traders/blenders. However, it should be considered on the one 
hand  that  the  information  requested  contains  business  secret  information  and  cannot 
therefore  be  disclosed  to  other  parties  than  the  party  concerned.  On  the  other,  it  is 
constant  practice  of  the  institutions  to  disclose  the  general  method  used  to  establish 
dumping to all parties for which no individual data was used in the calculations. This 
method was described in the general disclosure document sent to all parties.  

4. 

4.1. 

INJURY 

Union production and Union industry 

(78)  The Union production was established on the basis of a market report provided by the 
complainant  during  the  investigation.  The  total  Union  production  of  the  like  product 
stated  in  this  report  was  compared  with  the  information  provided  by  the  17 
cooperating Union producers. A small difference of around 5% was found between the 
two  sets  of  data.  This  is  explained  by  the  fact  that  some  relatively  small  non-
cooperating Union producers did not submit production information. On this basis, the 
total Union production was estimated at 3,42 million tonnes during the IP. The Union 
producers  accounting  for  the  total  Union  production  constitute  the  Union  industry 
within the meaning of Articles 4(1) and 5(4) of the basic Regulation and will therefore 
be referred to as the "Union Industry". 

4.2. 

Union consumption 

(79)  Union consumption was established on the basis of the total Union production of the 
Union industry, adding the volume of imports from third countries established on the 
basis  of  the  best  available  statistics,  whereas  the  stock  variation  and  exports  of  the 
Union  industry  as  reported  by  the  Union  industry  were  deducted.  Some  parties 
claimed  that  the  statistics  used  to  establish  consumption  were  not  complete  because 
significant imports of bioethanol from other third countries, especially in the IP, were 
not taken into consideration. They also considered that the volume of imports from the 
US  was  overestimated  by  the  Commission  and  that  figures  for  consumption  and 
market share were therefore unreliable.  

(80)  These  claims  were  analysed  and  cross-checked  with  the  information  available. 
Regarding the imports from other countries, the parties did not provide any evidence 
regarding  the  volumes  of  imports  of  the  product  concerned.  Nevertheless,  imports 
from  other  countries  were  taken  into  consideration  in  the  estimation  of  the  imports. 
For  the  volume  of  US  imports,  a  clerical  error  was  found  in  the  estimation  of  US 
imports during the IP. Hence, the volume of imports has been re-assessed and adjusted 
where necessary. However, this has no impact on the conclusions reached in the injury 
and causality assessments. 

(81)  Regarding the imports of the product concerned, it should be underlined that there is 
no  specific  customs  Combined  nomenclature  codes  for  the  product  concerned. 
Moreover,  the  Combined  Nomenclature  codes  where  the  product  concerned  can  be 
declared  to  the  customs  authorities  include  other  products  in  addition  to  the  product 
concerned.  

(82)  For  the  imports  of  bioethanol  blends,  the  verified  questionnaire  responses  of  the 
unrelated  importers  have  shown  that  most  of  the  imports  were  declared  at  customs 
under  the  TARIC  code  3824  90  97  99.  However,  the  volume  of  imports  cannot  be 

EN 

15 

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obtained  directly  from  Eurostat  because  this  TARIC  code  includes  various  chemical 
products in addition to the product concerned. .  

(83)  Regarding the imports declared under the Combined Nomenclature codes 2207 10 00 
and 2207 20 00, it was not possible to differentiate between the product concerned and 
other  products  not  concerned  by  the  investigation  due  to  the  absence  of  sufficient 
information regarding the product imported. 

(84)  Therefore, in the absence of complete imports details retrievable from Eurostat, it was 
decided  to  use  also  other  sources  of  information  for  the  purpose  of  establishing  the 
imports of the product concerned in the Union market. 

(85) 

In order to get the best estimate of the imports of the product concerned originating in 
the USA, it was considered that the most reliable basis were the statistics provided by 
the  US  International  Trade  Commission  (ITC).  The  volumes  of  exports  reported 
correspond to the US tariff codes 2207 10 60 and 2207 20 00.  

(86)  A  reasonable  approach  was  adopted  to  estimate  these  imports  and  all  the  quantities 
reported by the US International Trade Commission were taken into consideration for 
establishing the US imports into the Union market. 

(87)  The estimate concerning the imports in the Union originating from Brazil was based 
on  the  following  sources  of  information:  reports  issued  by  the  United  Kingdom 
Renewable  Fuels  Agency  for  the  imports  in  the  United  Kingdom;  extractions  of 
customs  import  detailed  database  provided  by  the  Netherlands,  Sweden  and  Finland 
and by Eurostat. For the Netherlands, Sweden and Finland, the volume of imports was 
estimated on the basis of the importer and exporter names and the product description 
when available. To estimate these imports, a conservative approach was adopted. All 
the quantities reported were taken into consideration for the calculation of the imports. 

(88)  Finally, Eurostat was also used to estimate the residual imports into the Union for the 
Member States other than those mentioned in recital (87) above. An adjustment to the 
import volumes was applied on the basis of the percentage of bioethanol used as fuel 
in  the  Union.  The  source  of  this  adjustment  can  be  found  in  the  complaint.  This 
percentage  was  obtained  from  the  annual  ethyl  alcohol  balance  published  by  the 
European Commission11. The percentage of bioethanol used for fuel in the Union was 
54% in 2008, 66% in 2009, and 68% in 2010. For the IP, the percentage of 2010 was 
used for the purpose of estimating the relevant imports made during the IP. 

(89)  For the estimation of the imports from other origins, the sources of information used 
were Eurostat and the extractions of customs import detailed database provided by the 
Netherlands,  Sweden  and  Finland.  The  same  methodology  as  that  used  to  establish 
Brazilian imports was used.  

(90)  Regarding the calculation of the CIF average unit price for imports from the USA and 
from  Brazil,  the  source  of  information  is  the  extraction  of  customs  import  detailed 
database  provided  by  the  Netherlands,  Sweden  and  Finland.  And  for  the  USA,  also 
data  from  the  verified  unrelated  importer  questionnaire  was  used.  For  the  USA,  the 
CIF average prices for 2008 and 2009 were estimated on the basis of the average price 
reported  by  the  US  ITC  for  these  years,  expressed  in  relation  with  the  CIF  average 
price unit obtained for 2010. 

(91)  The  stock  variation  was  established  on  the  basis  of  the  Union  industry  information 

provided by the complainant. 

11 

OJ C225, 18.9.2009, p.13, OJ C176, 2.7.2010, p.6, OJ C236, 12.8.2011, p.16. 

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16 

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(92)  On this basis Union consumption was found to have developed as follows: 

Total Union production (tonnes) 
(A) 
Total imports from third 
countries including the country 
concerned (tonnes) (B) 
Total exports from Union 
industry to non-EU countries 
(tonnes) (C) 
Stock variation12 (tonnes) (C) 

2008

2009

2010 

IP

2.153.118

2.797.948

3.274.665 

3.389.503

1.252.705

1.130.703

859.605 

1.031.226

26.263

41.023

53.085 

59.633

0

4.730

-8.415 

-5.458

Union Consumption (tonnes) 

3.379.559

3.882.897

4.089.600 

4.366.554

Index: 2008=100 

100

115

121 

129

Source:  (A)  market  report,  (B)  Eurostat,  the  US  International  Trade  Commission,  the  UK  Renewable  Fuels 
Agency  and  customs  import  database  provided  by  the  Netherlands,  Sweden  and  Finland;  (C)  complaint, 
questionnaire replies from the sampled Union producers, Union industry information provided in the complaint 

(93)  During the period considered, the Union consumption increased significantly, by 29%. 
This  increase  was  stimulated  by  the  implementation  of  the  Renewable  Energies 
Directive  (RED)  in  the  Member  States  which  established  growth  targets  for  the 
consumption of renewable energies.  

4.3. 

Imports into the Union from the country concerned 

4.3.1.  Volume, market share and price of imports from the country concerned 

(94) 

In  terms  of  volume,  market  share  and  price,  imports  into  the  Union  from  the  USA 
developed as follows during the period considered: 

Volume of imports from the USA 
(tonnes) (A) 
Index: 2008=100 
Market share (%) 
Index: 2008=100 
Average price in EUR/tonne (B)  
Index: 2008=100 

2008

2009

2010 

IP

63.406
100
1,9%
100
590,6
100

53.332
84
1,4%
73
552,5
94

348.868 
550 
8,5% 
454 
542,5 
92 

686.185
1082
15,7%
837
626,7
106

Source: (A) export volume declared by the US International Trade Commission, (B) Customs import database 
provided by the Netherlands, Sweden Finland and a verified unrelated importers' questionnaire reply. 

(95) 

Imports from the USA significantly increased, in terms of volume, from 63.406 tonnes 
to  686.185  tonnes  during  the  period  considered.  Similarly,  the  market  share  held  by 
the  US  exporters  in  the  Union  significantly  increased  from  1,9%  to  15,7%  over  this 
period.  

(96)  Although the average US import prices increased by 6% over the period considered, 
prices  charged  by  US  exporters  were  consistently  lower  than  the  average  Union 
producers'  prices  as  explained  in  recital  (117)  below.  This  systematic  price 

12 

It is assumed that there was no stock variation in 2008. 

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17 

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undercutting practiced by the US exporters explains the significant increase in market 
share they achieved over the period considered.  

4.3.2.  Price undercutting of imports from the country concerned 

(97)  For  the  purpose  of  assessing  any  price  undercutting  during  the  IP,  the  weighted 
average  sales  prices  per  product  type  of  the  sampled  Union  producers  charged  to 
unrelated  customers  on  the  Union  market,  adjusted  to  an  ex-works  level,  were 
compared  to  the  corresponding  weighted  average  prices  per  product  type  of  the  US 
exporters charged to the first independent customer on the Union market, established 
on a CIF basis. In order to allow a fair price comparison, the appropriate adjustments 
for  the  existing  customs  duties  and  post-importation  costs  were  applied  to  the  US 
price. 

(98)  The results of this comparison, when expressed as a percentage of the sampled Union 
producers'  sales  prices  during  the  investigation  period,  showed  consistent  price 
undercutting of 5,6% on average. This price undercutting indicates the price pressure 
which was exerted by the imports from the country concerned on the Union market, in 
particular during the IP. 

4.4. 

Economic situation of the Union industry 

4.4.1.  Preliminary remarks 

(99) 

In accordance with Article 3(5) of the basic Regulation, the examination of the impact 
of the dumped imports on the Union industry included an evaluation of all economic 
indicators  for  an  assessment  of  the  state  of  the  Union  industry  over  the  period 
considered. 

(100)  The injury analysis with regard to macroeconomic data such as production, production 
capacity,  capacity  utilisation,  sales  volume,  market  share,  growth,  inventories, 
employment, productivity and magnitude of the dumping margin is based on the data 
of the Union industry as a whole from ePURE. 

(101)  The  injury  analysis  with  regards  to  microeconomic  data  such  as  prices,  profitability, 
cash  flow,  investment,  return  on  investment,  ability  to  raise  capital,  wages  and 
inventories have been established on the basis of data provided by the sampled Union 
producers through verified questionnaire replies. 

(102)  The  bioethanol  industry  is  still  in  a  start-up  phase  in  the  Union.  Companies  have 
recently invested in new production facilities or have expanded existing capacities to 
meet the growing demand in the Union. The fact that new producers started production 
during  the  period  considered  led  to  positive  developments  for  indicators  such  as 
production, production capacity, sales volume and employment.  

(103)  The investigation also showed that this type of industry needs a certain time, between 

two to three years from the moment of start-up, to reach normal levels of production. 

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4.4.2.  Production, production capacity and capacity utilisation 

2008 

2009 

2010 

IP 

Production volume (tonnes) 

2.153.118

2.797.948

3.274.665  3.389.503

Index: 2008=100 

100

130

152 

157

Production capacity (tonnes) 

3.443.766

3.992.640

4.670.076  4.734.915

Index: 2008=100 

Capacity utilisation 

Index: 2008=100 

100

63%

100

116

70%

112

136 

70% 

112 

137

72%

114

Source: based on data from the Union industry provided by the complainant 

(104)  As a result of the RED, Union production grew significantly in the period considered, 
by  around  57%.  From  2008  to  2010  the  Union  production  increased  by  36%  but 
subsequently, the growth rate slowed down significantly and was only 3,5% in the IP 
compared to 2010.  

(105)  Production  capacity  increased  by  37%  during  the  period  considered  and  followed  a 

similar pattern as production.  

(106)  Capacity utilisation increased by 14% during the period considered and this increase 
was  achieved  in  the  beginning  of  the  period  considered.  Given  the  start-up  phase  of 
certain Union producers in 2009, it was expected that capacity utilisation would have 
increased  further  as  producers  normally  need  between  two  to  three  years  from  the 
start-up to reach normal levels of production, as explained in recital (103) above. This 
has however not been the case.  

(107)  The investigation thus confirmed that several companies in the EU started operation in 
the beginning or during the period considered due to the expected publication  of the 
RED.  This  led  to  positive  developments  in  particular  for  the  above  injury  factors 
especially in the period up to 2010. But the situation in the Union market changed in 
coincidence with the surge of US dumped imports in 2010 and the growth in activity 
expected during the IP did not materialise.  

4.4.3. 

Sales volume and market share 

Sales volume (tonnes) 
Index: 2008=100 
Market share 
Index: 2008=100 

2008 
2.035.367
100
60,2%
100

2009 
2.650.526
130
68,3%
113

2010 
3.117.410 
152 
76,2% 
126 

IP
3.229.326
159
74,0%
122

Source: based on data from the Union industry provided by the complainant 

(108)  Sales volume of the Union industry increased by 59% and 13,8 percentage points of 
market  share  were  gained  during  the  period  considered.  Sales  volume  grew  steadily 
between 2008 and 2010 but between 2010 and the IP the sales volume grew less than 
consumption which increased by 6,8% in that period. 

EN 

19 

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(109)  Similarly,  the  Union  industry  market  share  increased  until  2010  but  then  decreased 
during  the  IP.  In  the  period  between  2010  and  the  IP,  whilst  the  US  imports  almost 
doubled their market share, gaining 7,2 percentage points, the Union industry lost 2,2 
percentage points.  

4.4.4.  Growth  

(110)  Union  consumption  increased  significantly  during  the  period  considered,  by  29,2%. 
Although sales volume and market share also increased during this period, the Union 
industry  did  not  fully  benefit  from  this  growth in consumption, in particular as from 
2010. From 2010 up to the IP, growth in sales volume of the Union industry slowed 
down and market share decreased compared to the previous years. 

(111)  Some  parties  claimed  that  the  growth  pattern  shown  by  certain  indicators  during  the 
period  considered  do  not  reflect  the  situation  of  an  injured  industry.  However,  as 
explained above, the investigation showed that the slowdown of growth of the Union 
industry in 2010 and in the IP coincided with the surge of low-priced dumped imports 
from the USA.  

4.4.5.  Employment and productivity  

Number of employees  

Index: 2008=100 

Productivity (unit/employee) 

Index: 2008=100 

2008

2.331

100

924

100

2009

2.419

104

1157

125

2010 

IP

2.523 

2.552

108 

109

1298 

1.328

141 

144

Source:based on data from the Union industry provided by the complainant 

(112)  Employment increased by 9% in the period considered. More specifically, it grew by 
8% from 2008 to 2010 but increased only marginally by 1% during the IP. This trend 
reflects the trend for capacity and production in the Union. 

(113)  The  productivity  of  the  Union  industry  workforce  was  measured  as  the  output  per 
person employed in one year. It increased significantly over the period considered by 
44%, reflecting the learning effect and increase in efficiency during and after the start-
up phase.  

4.4.6.  Magnitude of the actual dumping margin 

(114)  Given  the  volume,  market  share  and  prices  of  the  dumped  imports  from  the  country 
concerned,  the  impact  on  the  Union  industry  of  the  dumping  margins  established 
during the IP cannot be considered to be negligible. 

4.4.7.  Recovering from the effects of past dumping 

(115)  This issue is not relevant in this case due to the absence of past dumping effects. 

EN 

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4.4.8.  Average unit prices of the Union industry 

2008 

2009 

2010 

IP

Unit prices (EUR) 

702,59

634,88

657,41 

768,59

Index: 2008=100 

100

90

94 

109

Source: questionnaire replies of sampled Union producers. 

(116)  Prices  of  the  Union  industry  increased  overall  by  9%  during  the  period  considered. 
They decreased in 2009 as compared to 2008 but then steadily increased until the end 
of  the  IP.  However,  the  investigation  showed  that  the  price  increases  were  not 
sufficient  to  allow  the  Union  Industry  to  cover  its  costs.  The  gap  between  the  sale 
prices  and  the  costs  further  increased  in  particular  during  the  IP.  This  situation 
coincides with the increased presence of low-priced US dumped imports in the Union 
market. 

(117)  The  investigation  showed  that  Union  industry's  prices  remained  higher  (up  to  23%) 

than those of the dumped imports from the USA over the period considered. 

4.4.9.  Profitability, cash flow, investments, return on investment and ability to raise capital 

2008

2009

2010  IP 

Net profit before tax (EUR)  

-33.305.225

1.343.823

-
33.932.738 

-
82.070.168

Index: 2008= -100  

-100

4

-102 

-246

Profitability  of  Union  sales  (% 
of net sales) 

-11,65%

0,33%

-5,72% 

-9,74%

Index: 2008= -100 

-100

3

-49 

-84

Cash flow (EUR) 

-2.528.061 34.783.260 48.733.697  36.832.646

Index: 2008=-100 

-100

1376

1928 

1457

Cash  flow  in  %  of  Union  Sales 
to unrelated parties 

Index: 2008=-100 

-0,9%

-100

8,7%

980

8,2% 

4,4%

930 

494

Investments (EUR) 

330.441.830 86.279.988 38.710.739  23.018.175

Index: 2008=100 

Return on investment  

Index: 2008=100 

100

-10%

-100

26

2%

15

12 

7

-88% 

-357%

-870 

-3538

Source: Questionnaire replies of sampled Union producers  

EN 

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(118)  Profitability of the Union industry was established both in absolute amounts (net profit 
before  tax)  and  by  expressing  the  pre-tax  net  profit  or  loss  as  a  percentage  of  the 
turnover  of  the  sales  of  the  like  product.  The  profitability  of  the  Union  industry  has 
been  negative  during  the  period  considered  with  the  exception  of  2009,  when  the 
companies in the sample managed to break even. 

(119)  Return  on  investments  followed  a  similar  pattern,  staying  well  behind  the  necessary 

returns to allow the Union industry to survive. 

(120)  Cash  flow  was  negative  in  2008  and  improved  in  2009  and  2010.  During  the  IP, 
however,  cash  flow  started  to  decrease  again,  reflecting  a  worsening  in  the  Union 
industry's ability to self-finance its activities.  

(121)  The  evolution  of  profitability,  cash  flow  and  return  on  investment  during  the  period 
considered  limited  the  ability  of  the  Union  industry  to  invest  in  its  activities  and 
undermined  its  development  as  clearly  demonstrated  by  the  93%  decrease  in 
investments over this period. 

4.4.10.  Wages  

Wages (EUR) 
Average labour costs per 
employee (EUR) 
Index: 2008=100 

2008 
45.066.253 57.253.228 68.711.959  76.030.008

2009 

2010 

IP 

75.691 
100 

81.233 

88.638 

99.646 

107 

117 

132 

Source: Questionnaire replies of sampled Union producers  

(122)  Wages increased by 32% over the period considered, reflecting the productivity gains 

of the employees. 

4.4.11.  Inventories  

2008 

2009 

2010 

IP 

Closing stocks (tonnes) 
Index: 2008=100 
Stock in relation to production 

34.585
100
8,3%

24.022
69
3,5%

38.649 
112 
3,8% 

31.408
91
2,5%

Source: Questionnaire replies of sampled Union producers 

(123)  Stock levels slightly decreased during the period considered. 

4.5. 

Conclusion on injury 

(124)  The investigation has shown that the surge in low-priced dumped imports in the Union 
market occurred in 2010 and in particular during the IP. In that period, certain injury 
indicators pertaining to the economic situation of the Union industry improved, but the 
growth was not in line with the increase in consumption during the period considered 
and the improvements were thus not sufficient to allow the Union industry to develop 
its activities. 

(125)  As is normal in a new and growing activity, certain indicators, such as sales volume, 
production,  and  capacity  utilisation  showed  a  positive  trend  during  the  period 
considered. This is explained by the fact that new Union producers entered the market 
in  that  period.  Nevertheless,  the  investigation  showed  that  the  situation  in  the  Union 
market,  as  from  2010  when  the  surge  of  low-priced  imports  occurred,  did  not  allow 
Union producers to reach a sufficient activity and price level in order to develop and to 
sustain the important investments made in the period considered. 

EN 

22 

   EN 

 
 
 
(126)  It was found that the low-priced imports constantly undercut the prices of the Union 
industry. The level of prices did not allow that industry to cover its costs and realise 
the cash flow and profits, which are necessary to develop the activities. 

(127)  Indeed,  the  injury  indicators  related  to  the  financial  performance  of  the  Union 
industry,  such  as  profitability,  cash  flow  and  return  on  investment  deteriorated  or 
remained  far  below  the  normal  level.  This  seriously  affected  the  Union  industry's 
ability to raise capital and to further invest in its activities. 

(128)  In  the  light  of  the  foregoing,  it  was  considered  that  the  Union  industry  suffered 
material  injury  during  the  IP  within  the  meaning  of  Article  3(5)  of  the  basic 
Regulation.  

5. 

CAUSATION 

5.1. 

Introduction 

(129)  In accordance with Articles 3(5) and 3(6) of the basic anti-dumping Regulation, it was 
examined  whether  the  dumped  imports  of  the  product  concerned  originating  in  the 
country concerned caused injury to the Union industry; Known factors other than the 
dumped imports, which  could  at the same  time be injuring the Union  industry,  were 
also  examined  to  ensure  that  possible  injury  caused  by  these  other  factors  was  not 
attributed to the dumped imports. 

5.2. 

Effect of the dumped imports 

(130)  As  mentioned  above,  Union  consumption  grew  substantially  during  the  period 
considered,  by  29,%.  However,  the  dumped  imports  from  the  country  concerned 
significantly  increased  in  volume,  i.e.  from  1,9%  share  of  the  Union  market  at  the 
beginning  of  the  period  considered  to  15,7%  during  the  IP.  This  clearly  exerted 
pressure on the Union industry, particularly from 2010 until the end of the IP, when 
these  imports  more  than  doubled.  From  2010,  and  in  particular  during  the  IP,  large 
volumes of low-priced imports from the USA were present on the Union market and 
were  undercutting  the  prices  of  the  Union  industry.  This  situation  did  not  allow  the 
industry to develop as expected during the IP. 

(131)  Some parties have argued that the situation of the Union industry improved precisely 
from  2010  to  the  IP,  coinciding  with  the  doubling  of  imports  from  the  USA.  As 
explained above in recitals (102) and (107), the fact that many Union producers started 
to enter the market during the period considered led to positive trends in certain injury 
factors, such as production and sales volume. However, the Union industry lost market 
share in the IP compared to 2010 while at the same time the Union market experienced 
the  highest  increase  of  US  dumped  imports.  The existence  of  price  undercutting  and 
price  pressure  led  to  the  deterioration  of  the  general  financial  situation,  in  particular 
the profitability, of the Union industry.  

(132)  The  low-priced  imports  thus  have  played  a  significant  role  in  the  material  injury 

suffered by the Union industry during the IP. 

5.3. 

Effect of other factors 

(133)  The  following  known  factors,  other  than  the  dumped  imports,  which  might  have 
injured the Union industry, were examined to ensure that any injury caused by those 
factors was not attributed to the dumped imports: the imports from other countries, the 
export performance of the Union industry, the impact of the economic crisis and other 
factors  such  as  the  raw  material  prices  fluctuations,  development  of  demand  and 
alleged internal problems of companies in the Union industry. 

EN 

23 

   EN 

 
5.3.1. 

Imports from other countries (Brazil) 

(134)  According to the information available, apart from Brazil, there was no other country 
exporting  the  product  concerned  to  the  Union  in  significant  quantities  in  the  period 
considered. In terms of prices, Brazilian import prices have remained well below those 
of the Union producers'. However, imports from Brazil, clearly showed a decreasing 
trend  in  volume  (-81%),  and  market  share (-25,8%) during the period considered. In 
consequence, since the import volumes were reduced to such a low level during the IP, 
they  cannot  be  considered  to  have  broken  the  causal  link  between  the  low-priced 
imports from the USA and the injury of the Union industry during the IP.  

2008

2009

2010  IP 

Volume  of  imports  originating 
from Brazil (tonnes) 

1.022.980

884.020

396.249 

195.342

Index: 2008=100 

100

86

39 

19

Market  share  of  imports  from 
Brazil (%) 

CIF  average  unit  price  (EUR  / 
tonne of imports) 

30,3%

22,8%

9,7% 

4,5%

560,8

496,2

580,8 

622,4

Index: 2008=100 

100

88

104 

111

Source:  Eurostat,  the  UK  Renewable  Fuels  Agency,  customs  import  database  provided  by  the  Netherlands, 
Sweden and Finland and the complaint. 

(135)  Parties  claimed  that  imports  from  Brazil  remained  above  the  de  minimis  level 
throughout  the  period  considered,  and  that  they  were  made  at  dumped  prices  on  the 
Union  market.  They  further  argued  that  imports  from  the  USA,  only  replaced  the 
market  share  left  by  the  Brazilian  imports.  The  imports  from  the  USA  can  therefore 
allegedly  not  be  considered  to  be  the  cause  of  the  material  injury  of  the  Union 
industry.  

(136)  As  explained  above,  Brazilian  imports  decreased  significantly  in  the  period 
considered.  Their  market  share  decreased  from  30,3%  to  4,5%  at  a  time  when 
consumption  significantly  increased.  Given  the  price  level  practiced  by  Brazilian 
exporters  in  the  Union  market,  it  cannot  be  excluded  that  the  presence  of  Brazilian 
bioethanol contributed to some extent to the injury of the Union industry. However, it 
is considered that these imports were reduced to such a level during the IP that they 
cannot be regarded as a major cause of that injury. Indeed, in period between 2010 and 
the IP, whilst imports from Brazil decrease by about 200 000 tons, the dumped imports 
from the USA increased by over 330 000 tons. It is thus considered that the presence 
of the Brazilian bioethanol in the Union market, in particular during the IP, cannot be 
such  as  to  break  the  causal  link  established  between  the  dumped  imports  from  the 
USA and the injurious situation of the Union industry in that period.  

EN 

24 

   EN 

 
 
5.3.2.  Export performance of the Union industry  

2008

2009

2010  IP 

volume 

Sales 
(tonnes) 

for 

export 

26.263

41.023

53.085 

59.633

Source: Complaint and questionnaire replies of sampled Union producers 

(137)  The  investigation  showed  that  small  volumes  of  bioethanol  were  exported  by  the 
Union  industry  during  the  IP  at  prices  largely  above  those  practiced  on  the  Union 
market. This has led to the conclusion that the export performance is not a factor that 
broke  the  causal  link  between  the  injury  suffered  by  the  Union  industry  and  the 
dumped imports from the country concerned. 

5.3.3.  The impact of the economic crisis 

(138)  The  economic  crisis  was  not  found  to  have  had  a  negative  impact  on  the  Union 
industry. Consumption of bioethanol in the Union experienced its biggest increase in 
2009, the year generally considered to be the worst year of the economic crisis. In the 
same period, production and sales by Union producers also increased.  

(139)  Based on the above, it is considered that the economic crisis did not break the causal 
link  between  the  low-priced  imports  from  the  country  concerned  and  the  material 
injury suffered by the Union industry. 

5.3.4.  Other factors 

(140)  Parties have also mentioned other factors that could have broken the causal link such 
as  the  fluctuation  of  the  raw  material  prices,  the  development  of  demand  which  was 
lower than expected, a regulatory framework in the Union that allegedly plays against 
Union producers and certain alleged internal problems of Union producers.  

(141)  Regarding  the  fluctuations  in  the  raw  material  prices,  both  prices  of  corn  and  wheat 
were found to be volatile during the period considered. The investigation showed that 
most  producers  however  hedge  this  risk  through  a  specific  price  setting  mechanism 
with their suppliers or through the financial markets. Hence even if prices of feedstock 
did differ in particular from 2008 until 2010, when the price for corn was lower than 
the price of wheat, feedstock prices in the second half of the IP were more or less the 
same. This indicates that any price difference is reduced to a minimum and is not of a 
lasting nature.  

(142)  Some parties have claimed that the implementation of the RED in Member States has 
been  too  slow  and  that  consumption  lagged  behind  the  targets  established  by  the 
mentioned Directive. But, even  if initial targets were not fully  met within  the period 
considered  the  fact  that  consumption  has  grown  significantly,  namely  by  29,2%,  in 
that period is a positive factor that cannot be ignored in the analysis. In any event, the 
alleged slow implementation of the RED cannot justify the presence of high volumes 
of  low-priced  dumped  imports  in  the  Union  market  undercutting  the  prices  of  the 
Union industry and causing injury to that industry. Hence, the claim is rejected. 

(143)  Parties have also argued that the Union industry alone could not meet Union demand 
as  a  result  of  regulatory  uncertainty  and  that  the  system  of  certification  is  very  slow 
and thus undermine the benefits for the certified Union producers. Some parties have 
finally  argued  that  the  fact  that  many  Union  producers  suffered  internal  problems 

EN 

25 

   EN 

 
 
 
during  the  period  considered  explains  any  injury  they  suffered.  These  claims  were 
however not substantiated and the investigation did not confirm that these claims were 
founded. Nevertheless, it should be pointed out that the investigation showed that any 
alleged low level of the Union production was mainly justified by a low level of sales 
prices in the Union market which was largely affected by the surge of low-priced US 
dumped imports undercutting the Union producers prices, in particular during the IP. It 
appeared that EU producers had no other choice than stopping production as prices did 
not even allow them to cover the cost of the raw material in particular during the IP. 
Hence,  the  above  unsubstantiated  claims  are  not  such  as  to  break  the  causal  link 
between the dumped imports and the injurious situation of the Union industry during 
the IP.  

(144)  It is thus concluded that all the above factors could not break the causal link between 
the injury suffered by the Union industry and the dumped imports from the USA. 

(145)  Parties  finally  mention  the  fact  that  during  the  IP,  a  considerable  number  of  imports 
were declared under CN heading 3824, attracting a low customs duty. After the end of 
the  IP,  the  level  of  the  respective  customs  duty  was  raised.  They  consider  that  the 
injury  was  caused  by  the  low  customs  duty,  and  not  by  dumping.  In  this  regard,  it 
suffices  to  say  that  customs  duties  may  change  at  any  time,  and  that  this  argument 
therefore  cannot  put  into  question  the  presence  of  injury  during  the  investigation 
period. 

5.4. 

Conclusion on causation 

(146)  The  above  analysis  demonstrated  that  there  was  a  substantial  increase  in  the  volume 
and market share of the low-priced imports originating in the country concerned over 
the period considered. In addition, it was found that the prices of these imports were 
below the prices charged by the Union industry on the Union market.  

(147)  This increase in volume and market share of the low-priced imports from the country 
concerned  coincided  with  an  overall  and  continuous  increase  of  consumption  in  the 
Union  and  also  with  negative  results  of  the  Union  industry  during  the  period 
considered.  The  exporters  from  the  country  concerned  managed  to  increase  their 
market share by systematically undercutting Union industry's prices. At the same time, 
the  Union  industry  was  not  able  to  reach  sustained  positive  levels  of  profitability 
despite its increase in activity. 

(148)  The  examination  of  the  other  known  factors  which  could  have  caused  injury  to  the 
Union  industry  revealed  that  these  factors  do  not  appear  to  be  such  as  to  break  the 
causal link established between the dumped imports from the country concerned and 
the injury suffered by the Union industry. 

(149)  Based  on  the  above  analysis,  which  has  properly  distinguished  and  separated  the 
effects of all known factors on the situation of the Union industry from the injurious 
effects  of  the  dumped  imports,  it  was  concluded  that  the  dumped  imports  from  the 
USA have caused material injury to the Union industry within the meaning of Article 
3(5) of the basic Regulation. 

6. 

UNION INTEREST 

6.1. 

Preliminary remark 

(150)  In  accordance  with  Article  21  of  the  basic  Regulation,  it  was  examined  whether, 
despite  the  conclusion  on  injury  caused  by  the  dumped  imports  from  the  country 
concerned,  compelling  reasons  existed  for  concluding  that  it  was  not  in  the  Union 

EN 

26 

   EN 

 
interest  to  adopt  anti-dumping  measures  in  this  particular  case.  The  analysis  of  the 
Union  interest  was  based  on  an  appreciation  of  all  the  various  interests  involved, 
including those of the Union industry, importers and users of the product concerned. 

6.2. 

Interest of the Union industry 

(151)  The investigation has shown that the Union industry suffered material injury caused by 
the  dumped  imports  from  the  USA.  In  the  absence  of  measures  to  correct  the  trade 
distorting  effects  of  these  imports,  a  further  deterioration  in  the  Union  industry's 
economic situation appears to be very likely. 

(152)  It  is  expected  that  the  imposition  of  anti-dumping  duties  will  restore  effective  trade 
conditions on the Union market, allowing the Union industry's prices to reflect its cost 
of  production.  It  can  be  expected  that  the  imposition  of  measures  would  also  enable 
the Union industry to increase sales volume and thus gain the market share lost due to 
the presence of dumped imports. This in turn will have a further positive impact on its 
financial situation and profitability.  

(153)  It was therefore concluded that the imposition of anti-dumping measures on imports of 
the product concerned originating in the USA would not be against the interest of the 
Union industry. 

6.3. 

Interest of importers 

(154)  Two companies sent responses to the questionnaire intended for unrelated importers in 
the  Union.  Verification  visits  took  place  at  the  premises  of  these  cooperating 
importers. For both companies visited, the bioethanol business constitutes only a small 
part  of  their  total  turnover  (less  than  5%).  In  addition,  they  both  indicated  that  they 
would be able to pass on any price increase to their customers, the users.  

(155)  Based on the information available, it was concluded that the imposition of measures 

would not have a significant negative impact on the importers. 

6.4. 

Interest of users 

(156)  Four  companies  sent  responses  to  the  questionnaire  intended  for  users  in  the  Union. 

Verification visits took place at the premises of one of them. 

(157)  For  the  company  visited,  the  bioethanol  business  represents  a  small  part  of  its 
turnover,  less  than  5%.  The  company  has  made  an  impact  assessment  considering  a 
blend of E5 and calculated that a duty of 100 Euro/m3 would result in a price increase 
of EUR 0,5 cents/litre at the pump.  

(158)  As concerns the other three users, on the basis of data contained in their questionnaire 
replies,  it  is  clear  that  the  impact  would  be  limited  as  well.  For  one  company,  the 
volumes purchased from the country concerned are quite limited and the imposition of 
an antidumping duty would only lead to a minimal impact on its profitability.  

(159)  The other two cooperating users are related and have declared that any imposition of 
antidumping  duties  can  be  passed  on  to  their  customers.  They  also  made  clear  that 
they have sufficient choice in the sources of supply and that they do not depend on US 
imports. 

(160)  Parties  have  claimed  that  there  is  not  sufficient  capacity  in  the  Union  to  meet  total 
demand  and  that  the  Union  will  need  imports  to  secure  its  bioethanol  needs.  The 
verified  capacity  figures  show  that  there  was  idle  capacity  in  the  Union  given  in 
particular the low level of sale prices. In consequence, the Union producers would be 
able to increase their production to fulfil the growing demand particularly when trade 

EN 

27 

   EN 

 
distortions are removed from the market. Furthermore, it is expected that new plants 
will  be  constructed  and  will  come  into  operation  in  the  near  future,  reducing  any 
alleged risk of shortage in the Union.  

(161)  In  view  of  the  above,  it  was  concluded  that  the  effect  of  anti-dumping  measures 
against imports of the bioethanol from the USA would not have a significant negative 
impact on the users in the Union. 

6.5. 

Conclusion on Union interest 

(162)  In view of the above, it was concluded that overall, based on the information available 
concerning the Union interest, there are no compelling reasons against the imposition 
of anti-dumping measures on imports of bioethanol originating in the USA. 

7. 

DEFINITIVE ANTI-DUMPING MEASURES 

7.1. 

Injury elimination level 

(163)  In  view  of  the  conclusions  reached  with  regard  to  dumping,  injury,  causation  and 
Union  interest,  definitive  anti-dumping  measures  should  be  imposed  in  order  to 
prevent further injury being caused to the Union industry by the dumped imports. 

(164)  For the purpose of determining the level of these measures, account was taken of the 
dumping margins and the amount of duty necessary to eliminate the injury sustained 
by the Union industry, without exceeding the dumping margins found. 

(165)  When calculating the amount of duty necessary to remove the effects of the injurious 
dumping,  it  was  considered  that  any  measures  should  allow  the  Union  industry  to 
cover its costs of production and to obtain a profit before tax that could be reasonably 
achieved  by  an  industry  of  this  type  in  the  sector  under  normal  conditions  of 
competition, i.e. in the absence of dumped imports, on sales of the like product in the 
Union.  

(166)  In  this  case,  given  the  observations  made  in  particular  in  recitals  (102)  and  (103) 
above, it is considered that the target profit for the Union industry, should be based on 
the profit achieved when the imports from the USA were negligible, i.e. the average 
pre-tax  profit  margin  of  one  of  the  sampled  Union  producers  in  2008  and  2009,  a 
producer  which  was  not  in  a  start-up  phase  at  that  time.  It  is  thus  considered  that  a 
margin  of  6,8%  of  turnover  is  reasonable  and  could  be  regarded  as  an  appropriate 
minimum which the Union industry could have expected to obtain under normal trade 
conditions in the absence of injurious dumping during the IP.  

(167)  On this basis, a non-injurious price was calculated for the Union industry for the like 
product.  The  non-injurious  price  was  obtained  by  adjusting  the  sales  prices  of  the 
sampled Union producers by the actual profit/loss made during the IP and by adding 
the above mentioned profit margin. 

(168)  The necessary price increase was then determined on the basis of a comparison of the 
weighted average import price of the cooperating exporting producers in the USA, as 
established for the price undercutting calculations, with the non-injurious price of the 
products  sold  by  the  Union  industry  on  the  Union  market  during  the  IP.  Any 
difference  resulting  from  this  comparison  was  then  expressed  as  a  percentage  of  the 
average total CIF import value. 

7.2. 

Form and level of the duties 

(169)  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 on imports 

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of  the  product  concerned  at  the  level  of  the  lower  of  the  dumping  and  the  injury 
margins, in accordance with the lesser duty rule. Accordingly, all duty rates should be 
set at the level of the dumping margins found. 

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

Dumping 
margin 

country-wide 
dumping margin 

9,5% 

Injury  

margin 

31,1% 

Definitive 
duty % 

9,5% 

(171)  In view of the fact that the anti-dumping duty will also apply to blends containing by 
volume more than 10% (v/v) of bioethanol, in proportion to their bioethanol content, it 
is  considered  appropriate  for  the  effective  implementation  of  the  measure  by  the 
customs authorities of the Member States to determine the duty as a fixed amount on 
the basis of the pure bioethanol content. 

(172)  The anti-dumping duty rate specified in this Regulation was established on the basis of 
the  findings  of  the  present  investigation.  Therefore,  they  reflect  the  situation  found 
during  that  investigation.  This  country-wide  duty  applicable  to  all  companies  is 
applicable to imports of the product concerned originating in the USA.  

(173)  While  it  was  initially  envisaged  limiting  the  duration  of  measures  to  3  years  due  to  the 
perceived  dynamic  market  developments  regarding  the  product  concerned  this  issue  was 
reassessed  following  the  comments  received  from  interested  parties. The  complainants  in 
particular  claimed  that  it  would  be  too  early  to  assume  at  this  stage  a  major  change  in  the 
market patterns as the shift to new generation bioethanol may very likely take a considerable 
amount  of  time  and  should  not  be  taken  into  account  in  the  current  proposal.  Likewise,  it 
would also be premature to assume what the outcome and the impact of some of the regulatory 
proposals  currently  discussed  would  be  for  all  the  operators  in  the  market.  After  examining 
these arguments it was considered that it was not appropriate to depart from the normal period 
of validity of measures as provided in Article 11(2) of the Basic Regulation. This is without 
prejudice  to  the  possibility  for  any  interested  party  to  ask  for  a  review  should  the 
circumstances so warrant pursuant to Article 11(3). 

8. 

REGISTRATION 

(174)  The  Commission  has  received  requests  from  the  complainant  for  registration  of 
imports of bioethanol originating in the USA. According to Article 14(6) of the basic 
Regulation,  the  Commission  may,  after  consultation  of  the  Advisory  Committee, 
direct the customs authorities to take the appropriate steps to register imports, so that 
measures  may  subsequently  be  applied  against  those  imports  from  the  date  of  such 
registration. Imports may be made subject to registration following a request from the 
Union  industry  which  contains  sufficient  evidence  to  justify  such  action.  The 
complainant  argued  that,  since  registration  was  imposed  in  the  parallel  anti-subsidy 
proceeding  on  imports  of  bioethanol  originating  in  the  USA13,  such  conditions  were 
automatically met. 

(175)  However,  it  should  be  underlined  that  the  registration  in  the  parallel  anti-subsidy 
proceeding has been made in a completely different set of circumstances. As indicated 
in  recital  10  to  the  Regulation  771/2012,  despite  positive  findings  of  countervailing 
subsidisation  and  material  injury  caused  thereby  to  the  Union  industry  during  the 

13 

Commission Regulation (EU) No 771/2012 of 23.08.2012, OJ L229, p. 20. 

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investigation period, the Commission decided not to adopt provisional countervailing 
duties because it was provisionally found that the main subsidy scheme in force during 
the investigation period had ceased, in the sense that it no longer conferred a benefit at 
the  time  provisional  measures  would  have  been  imposed.  However,  there  was 
evidence  that  the  USA  might  reinstate  the  main  subsidy  scheme  found  to  be 
countervailable  in  the  coming  months  with  retroactive  effects.  In  that  event,  the 
Commission  considered  that  it  would  have  been  entitled  to  adopt  (and  eventually 
collect) provisional countervailing duties in the present investigation. Thus, in order to 
preserve  the  European  Union's  rights  under  these  special  circumstances,  the 
Commission decided to direct the Custom authorities to register imports. This specific 
set of circumstances does not apply in the current AD proceeding. 

HAS ADOPTED THIS REGULATION: 

1. 

2. 

3. 

4. 

Article 1 

A definitive anti-dumping duty is hereby imposed on imports of bioethanol, referred 
to as “fuel ethanol”, i.e. ethyl alcohol produced from agricultural products (as listed 
in  Annex  I  to  the  Treaty  on  the  Functioning  of  the  European  Union),  denatured  or 
undenatured,  excluding  products  with  a  water  content  of  more  than  0,3  %  (m/m) 
measured according to the standard EN 15376, but including ethyl alcohol produced 
from agricultural products (as listed in Annex I to the Treaty on the Functioning of 
the European Union) contained in blends with gasoline with an ethyl alcohol content 
of more than 10 % (v/v) intended for fuel uses currently falling within CN codes ex 
2207 10 00, ex 2207 20 00, ex 2208 90 99, ex 2710 12 21, ex 2710 12 25, ex 2710 12 
31, ex 2710 12 41, ex 2710 12 45, ex 2710 12 49, ex 2710 12 51, ex 2710 12 59, ex 
2710  12  70,  ex  2710  12  90,  ex  3814  00  10,  ex  3814  00  90,  ex  3820  00  00  and  ex 
3824 90 97 (TARIC codes 2207 10 00 12, 2207 20 00 12, 2208 90 99 12, 2710 12 21 
11, 2710 12 25 92, 2710 12 31 11, 2710 12 41 11, 2710 12 45 11, 2710 12 49 11, 
2710 12 51 11, 2710 12 59 11, 2710 12 70 11, 2710 12 90 11, 3814 00 10 11, 3814 
00 90 71, 3820 00 00 11 and 3824 90 97 67) and originating in the United States of 
America. 

The  rate  of  the  definitive  anti-dumping  duty  applicable  to  the  product  described  in 
paragraph  1  shall  be  62.3  Euro  per  tonne  net.  The  anti-dumping  duty  shall  be 
applicable  in  proportion,  by  weight,  of  the  total  content  of  pure  ethyl  alcohol 
produced  from  agricultural  products  (as  listed  in  Annex  I  to  the  Treaty  on  the 
functioning of the European Union) (bioethanol content). 

Products  described  in  paragraph  1  shall  be  exempted  from  the  definitive  anti-
dumping  duty  if  they  are  for  other  uses  than  as  use  for  fuel.  Exemption  shall  be 
subject to the conditions laid down in the relevant provisions of the European Union 
with a view to customs control of the use of such goods (see Articles 291 to 300 of 
Commission Regulation (EEC) No 2454/93). 

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  establishing  the  Community  Customs  Code14,  the 
amount of anti-dumping duty, calculated on the amounts set above, shall be reduced 

14 

OJ L 253, 11.10.1993, p. 1. 

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30 

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by a percentage which corresponds to the apportioning of the price actually paid or 
payable. 

5. 

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

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

Article 2 

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

Done at Brussels,  

For the Council 
The President 

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