Proposal for a COUNCIL IMPLEMENTING REGULATION imposing a definitive anti-dumping duty on imports of certain prepared or preserved citrus fruits (namely mandarins, etc.) originating in the People's Republic of China
Date: 2013-01-28
Institutions: European Commission
Subjects: China, anti-dumping duty, citrus fruit, import (EU), originating product

EUROPEAN 
COMMISSION 

Brussels, 28.1.2013  
COM(2013) 21 final 

2013/0017 (NLE) 

Proposal for a 

COUNCIL IMPLEMENTING REGULATION  

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

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

Grounds for and objectives of the proposal 

This  proposal  concerns  the  application  of  Council  Regulation  (EC)  No  1225/2009  of  30 
November  2009  on  protection  against  dumped  imports  from  countries  not  members  of  the 
European  Community  ('the  basic  Regulation')  in  the  anti-dumping  proceeding  concerning 
imports of certain prepared or preserved citrus fruits (namely mandarins, etc.) originating in 
the People's Republic of China. 

General context 

This proposal is made in the context of the implementation of two judgement of the General 
Court  on  the  implementation  of  the  basic  Regulation  and  is  the  result  of  two  investigations 
which were carried out in line with the substantive and procedural requirements laid out in the 
basic Regulation. 

Existing provisions in the area of the proposal 

Definitive  measures  were  imposed  by  Council  Regulation  (EU)  No  1355/2008  (OJ  L  350, 
30.12.2008, p. 35.). 

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 

On  3  December  2011  and,  again,  on  19  June  2012, the Commission  announced  by  a notice 
(‘notice of partial reopening’), published in the Official Journal of the European Union, the 
partial reopening of the anti-dumping investigation concerning imports of certain prepared or 
preserved citrus fruits (namely mandarins, etc.) originating in China. 

The  first  reopening  was  triggered  by  the  annulment  by  the  General  Court  of  the  Council 
Regulation  (EC)  No  1355/2008  in  so  far  as  it  concerned  the  Chinese  exporting  producers 
Zhejiang  Xinshiji  Foods  Co.,  Ltd.  and  Hubei  Xinshiji  Foods  Co.  Ltd.  and  the  second 
reopening  was  triggered  by  the  annulment  by  the  General  Court  of  the  same  Council 

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Regulation, but for different reasons, in its entirety. In line with Article 266 of Treaty on the 
Functioning  of  the  European  Union,  the  institutions  of  the  European  Union  are  obliged  to 
comply  with  the  judgment  of  the  General  Court.  Consequently,  the  European  Commission 
initiated  the  partial  re-openings  of  the  anti-dumping  investigation,  initially,  on  3  December 
2011,  in  so  far  as  it  concerns  the  two  above  mentioned  Chinese  exporting  producers  and 
eventually, on 19 June 2012, as concerns all parties. 

The  enclosed  Commission  proposal  for  a  Council  Regulation  re-imposing  the  anti-dumping 
duty on all imports concerned is made upon the interested parties having been given sufficient 
time to provide comments to the final disclosure document of 6 December 2012.  

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

Legal basis 

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

Subsidiarity principle 

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

Proportionality principle 

The proposal complies with the proportionality principle for the following reasons: 

The form of action is described in the above-mentioned basic Regulation and leaves no scope 
for national decision. 

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

Choice of instruments 

Proposed instruments: regulation. 

Other means would not be adequate for the following reason: 

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

4. 

BUDGETARY IMPLICATION 

The proposal has no implication for the Union budget. 

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2013/0017 (NLE) 

Proposal for a 

COUNCIL IMPLEMENTING REGULATION  

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

THE COUNCIL OF THE EUROPEAN UNION,  

Having regard to the Treaty 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 2(7)(a) and Article 9 thereof,  

Having  regard  to  the  proposal  submitted  by  the  European  Commission  (‘the  Commission’) 
after having consulted the Advisory Committee,  

Whereas: 

1. 

(1) 

(2) 

(3) 

PROCEDURE 

On 20 October 2007 the Commission announced by a notice published in the Official 
Journal  of  the  European  Union  the  initiation  of  an  anti-dumping  proceeding 
concerning imports into the Community of certain prepared or preserved citrus fruits 
(namely mandarins, etc.) originating in the People’s Republic of China (‘PRC’)2. On 4 
July  2008,  the  Commission,  by  Regulation  (EC)  No  642/20083  (‘the  provisional 
Regulation’) imposed a provisional anti-dumping duty on imports of certain prepared 
or preserved citrus fruits originating in the PRC. 

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

As set out in recital (12) of the provisional Regulation, the investigation of dumping 
and  injury  covered  the  period  from  1  October  2006  to  30  September  2007 
(‘investigation period’ or ‘IP’). The examination of trends relevant for the assessment 
of injury covered the period from 1 October 2002 to the end of the investigation period 
(‘period considered’). 

(4) 

On 9 November 2007, the Commission made imports of the same product originating 
in the PRC subject to registration by Regulation (EC) No 1295/20074.  

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4 

OJ L 343, 22.12.2009, p. 51. 
OJ C 246, 20.10.2007, p. 15. 
OJ L 178, 5.7.2008, p. 19. 
OJ L 288, 6.11.2007, p. 22. 

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(5) 

(6) 

(7) 

1.1. 

(8) 

(9) 

It  is  recalled  that  safeguard  measures  were  in  force  against  the  same  product  until  8 
November  2007.  The  Commission  imposed  provisional  safeguard  measures  against 
imports  of  certain  prepared  or  preserved  citrus  fruits  (namely  mandarins,  etc.)  by 
Regulation  (EC)  No  1964/20035.  Definitive  safeguard  measures  followed  by 
Regulation (EC) No 658/2004 (‘the safeguard Regulation’)6. Both the provisional and 
definitive safeguard measures consisted of a tariff rate quota i.e. a duty was only due 
once the volume of duty free imports had been exhausted.  
By Regulation (EC) No 1355/2008 (7) (‘the original Regulation’) the Council imposed 
a definitive anti-dumping duty on imports of certain prepared or preserved citrus fruits 
(namely mandarins, etc.) originating in the People's Republic of China.  

The  range  of  the  definitive  anti-dumping  duty  was  between  361,4  and  531,2 
EUR/tonne net product weight. 

Xinshiji judgment 

By judgment of 17 February 2011 in case T-122/09 - Zhejiang Xinshiji Foods Co. Ltd 
and  Hubei  Xinshiji  Foods  Co.  Ltd  v  Council  of  the  European  Union  supported  by 
European  Commission8  -  ('the  Xinshiji  judgment')  the  General  Court  annulled  the 
original Regulation in so far as it concerns the applicants Zhejiang Xinshiji Foods Co., 
Ltd. and Hubei Xinshiji Foods Co. Ltd.  

The  General  Court's  judgment  was  based  on  the  grounds  that  the  Commission 
breached  the  rights  of  defence  by  not  providing  the  information  necessary  for  the 
applicants  to  determine  whether,  in  the  light  of  the  structure  of  the  market,  the 
adjustment of export price to the ex-work level of the importer was appropriate in that 
it  made  it  possible  to  compare  the  export  price  and  the  Union  industry  price  at  the 
same level of trade. The General Court also considered that the Commission infringed 
the duty to state reasons as the reasons for a measure must appear in the actual body of 
the measure and may not be stated in written or oral explanations given subsequently 
when  the  measure  is  already  the  subject  of  proceeding  brought  before  the  European 
Union Courts. 

(10) 

In April 2011 the Commission lodged an appeal (C-195/11P) seeking to set aside the 
Xinshiji  judgment.  Following  the  declaration  of  invalidity  of  the  original  Regulation 
by  the  Court  of  Justice  of  the  European  Union  ('the  Court')  on  22  March  2012  (see 
recital (16) below), the Commission withdrew its appeal as it became without object. 

(11)  On 3 December 2011 the Commission published a notice9 partially reopening the anti-
dumping investigation ('the first reopening Notice') in order to implement the General 
Court's  Xinshiji  judgment.  The  re-opening  was  limited  to  determine  whether,  in  the 
light of the structure of the market, the adjustment of export price to the ex-work level 
of the importer was appropriate in that it made it possible to compare the export price 
and the Union industry price at the same level of trade. 

(12)  Simultaneously,  all  interested  parties  received  a  disclosure  document  with  its 
enclosures explaining the reasons behind the adjustment of the post-importation costs 

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OJ L 290, 8.11.2003, p. 3. 
OJ L 104, 8.4.2004, p. 67. 
OJ L 350, 30.12.2008, p. 35. 
OJ C 103, 2.4.2011, p. 21. 
OJ C 353, 3.12.2011, p. 15. 

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which had been taken into account in calculating the price of products originating in 
the People's Republic of China.  

(13) 

Interested  parties  were  given  the  opportunity  to  make  their  views  known  in  writing 
and to be heard within the time limit set out in the notice. 

(14)  All  parties  which  so  requested  within  the  above  time-limit  and  which  demonstrated 
that  there  were  particular  reasons  why  they  should  be  heard  were  granted  the 
opportunity to be heard.  

(15)  The  two  applicant  exporters,  eight  importers,  two  associations  of  importers  and  one 

association of producers came forward as interested parties.  

1.2. 

Analogue country judgment 

(16)  On  22  March  2012,  in  Case  C-338/10  –  Grünwald  Logistik  Service  GmbH  (GLS)  v 
Hauptzollamt  Hamburg-Stadt  ('the  analogue  country judgment') –  the Court declared 
the original Regulation invalid10.  

(17)  The Court held that since the Commission and the Council had determined the normal 
value of the product concerned on the basis of the prices actually paid or payable in 
the  European  Union  for  a  like  product,  without  taking  all  due  care  to  determine  that 
value on the basis of the prices paid for that same product in a market economy third 
country, they had infringed the requirements of Article 2(7)(a) of the basic Regulation. 
(18)  On  19  June  2012  a  notice11  ('the  second  reopening  Notice')  was  published  in  the 
Official  Journal  of  the  European  Union.  In  the  notice  parties  were  informed  that,  in 
view of the above-mentioned judgment of the Court, imports into the European Union 
of  certain  prepared  or  preserved  citrus  fruits  (namely  mandarins,  etc.)  originating  in 
the People's Republic of China were no longer subject to the anti-dumping measures 
imposed  by  the  original  Regulation,  and  that  definitive  anti-dumping  duties  paid 
pursuant to that Regulation for the product concerned should be repaid or remitted.  

(19)  The notice also partially reopened the relevant anti-dumping investigation concerning 
imports  of  certain  prepared  or  preserved  citrus  fruits  (namely  mandarins,  etc.) 
originating  in  the  People's  Republic  of  China  in  order  to  implement  the  above 
judgment of the Court.  

(20)  The  notice  set  out  that  the  reopening  was  limited  in  scope  to  the  selection  of  an 
analogue country, if any, and the determination of the normal value pursuant to Article 
2(7)(a)  of  the  basic  Regulation  to  be  used  for  the  calculation  of  any  margin  of 
dumping.  

(21)  Moreover,  by  the  same  notice,  interested  parties  were  invited  to  make  their  views 
known, submit information and provide supporting evidence regarding the availability 
of market economy third countries which could be selected to determine normal value 
pursuant  to  Article  2(7)(a)  of  the  basic  Regulation,  including  with  regard  to  Israel, 
Swaziland, Thailand and Turkey. 

(22)  The  Commission  directly  informed  the  Union  industry  and  their  association,  the 
exporting  producers,  suppliers  and  importers  and  their  associations  known  to  be 
concerned, and the authorities of the third countries concerned. Interested parties were 

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Judgement  of  the  Court  (third  chamber)  of  22  March  2012  in  case  C-338/10,  GLS  v  Hauptzollamt 
Hamburg-Stadt.  
OJ C 175, 19.6.2012, p. 19 

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given the opportunity to make their views known in writing and to be heard within the 
time limit set out in the notice. 

(23)  All  parties  which  so  requested  within  the  above  time-limit  and  which  demonstrated 
that  there  were  particular  reasons  why  they  should  be  heard  were  granted  the 
opportunity to be heard. 

(24)  Eight importers and one association of importers came forward as interested parties. 

2. 

PROCEDURE AFTER DISCLOSURE OF PROVISIONAL MEASURES  

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

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

–  Wünsche  Handelsgesellschaft  International  (GmbH  &  Co  KG),  Hamburg, 

Germany, 

– 

– 

– 

– 

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

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

Zumdieck GmbH, Paderborn, Germany, 

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

(27)  All  parties  were  informed  of  the  essential  facts  and  considerations  on  the  basis  of 
which it was intended to recommend the imposition of a definitive anti-dumping duty 
on  imports  of  the  product  concerned  originating  in  the  PRC  and  the  definitive 
collection  of  the  amounts  secured  by  way  of  the  provisional  duty.  They  were  also 
granted a period of time within which they could make representations subsequent to 
this disclosure. 

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

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

and taken into account where appropriate. 

3. 

PRODUCT CONCERNED AND LIKE PRODUCT  

(30)  Subsequent to the imposition of provisional measures, two unrelated Union importers 
argued that certain types of  mandarins should be excluded from the definition of the 
product concerned either because of their sweetness level or because of their packing 
when exported. In this respect, it is noted that these claims were not accompanied with 
any  type  of  verifiable  information  and  data  proving  that  these  types  have 
characteristics that differentiate them from the product concerned. It is also noted that 
differences  in  packing  cannot  be  considered  as  a  critical  element  when  defining 
product  concerned,  especially  when  formats  of  packing  were  already  taken  into 
account  when  defining  the  product  concerned  as  set  out  in  recital  (16)  of  the 
provisional Regulation. These arguments are therefore rejected. 

(31)  The  measures  were  imposed  on  the  product  defined  in  the  original  Regulation  as 
follows:  prepared  or  preserved  mandarins  (including  tangerines  and  satsumas), 
clementines,  wilkings  and  other  similar  citrus  hybrids,  not  containing  added  spirit, 

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whether  or  not  containing  added  sugar  or  other  sweetening  matter,  and  as  defined 
under  CN  heading  2008,  currently  falling  within  CN  codes  2008  30  55,  2008  30  75 
and ex 2008 30 90 (TARIC codes 2008 30 90 61, 2008 30 90 63, 2008 30 90 65, 2008 
30 90 67 and 2008 30 90 69) and originating in the People's Republic of China. 

(32) 

In  this  regard,  in  the  analogue  country  judgement  the  Court  interpreted  the  statistics 
communicated by the Commission to the Court on 27 July 2011 as data relative solely 
to  the  product  concerned.  However,  it  should  be  noted  that  such  statistics  have  a 
broader  scope  than  the  product  under  measures,  since  they  included  full  CN  codes 
2008 30 55, 2008 30 75 and 2008 30 90.The statistical data only covering the product 
concerned  or  like  product  for  CN  codes  2008  30  55  and  2008  30  75,  for  the  above 
mentioned countries during the investigation period are as follows: 

Country 

People's Republic of China 
Thailand 
Turkey 
Israel 
Swaziland 

Volume of imports 
(tonnes) 
49,791.30 
666.10 
151.20 
4.80 
0 

(33) 

 Under  CN  code  2008  30  90  ,  the  statistics  included  products  other  than  the  product 
concerned.  As  a  consequence,  no  conclusions  can  be  drawn  on  imports  of  the  like 
product  with  regard  to  this  CN  code.  Therefore,  contrary  to  what  the  Court  held  in 
paragraph  33  of  the  analogue  country  judgement,  it  cannot  be  derived  from  the 
statistics  that  the  like  product  was  imported  during  the  investigation  period  in 
significant quantities from either Israelor Swaziland. 

4. 

SAMPLING  

4.1. 

Sampling for exporting producers in the PRC 

(34)  Two  unrelated  EU  importers  disputed  that  the  Chinese  exporting  producers  selected 
for the sample represented 60 % of the total exports to the Union. Nevertheless, they 
were not able to provide any verifiable information that could undermine the accuracy 
of the sampling information submitted by the cooperating Chinese exporting producers 
and  largely  confirmed  in  the  course  of  the  further  investigation.  This  argument  is 
therefore rejected. 

(35)  Three Chinese cooperating exporting producers submitted representations claimed that 
their related companies were exporting producers of the product concerned and should 
therefore be included in the Annex of cooperating exporting producers. These claims 
were  considered  warranted  and  it  was  decided  to  revise  the  relevant  Annex 
accordingly.  One  unrelated  EU  importer  argued  that  exports  made  to  the  Union 
through  traders  should  automatically  be  allowed  to  benefit  from  the  measures 
applicable  to  the  Chinese  exporting  producers.  In  this  respect,  it  is  noted  that  anti-
dumping measures are imposed on products manufactured by exporting producers in 
the country under investigation that are exported to the Union (irrespective of which 
company trades them) and not to business entities engaged only in trading activities. 
The claim was therefore rejected. 

5. 

DUMPING  

5.1. 

Market economy treatment (MET) 

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

5.2. 

(37) 

Individual treatment 

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

5.3. 

Normal value 

5.3.1.  Comments of interested parties following the second reopening notice 

(38)  Certain  importers  argued  that  Chinese  imports  would  be  necessary  to  cover  Union 
demand, although one importer indicated that Spanish and Turkish production together 
would  be  sufficient  to  cover  the  Union  market  needs.  One  importer  remarked  that 
imposition of anti-dumping duties would have resulted in significant increases in the 
price  of  the  product  concerned.  Increase  in  prices  were  also  mentioned  by  other 
importers.  Different  factors  were  identified  as  cause  for  such  increase  like  the 
decreasing availability of Chinese mandarins in the Union due to internal demand and 
demand from other markets, crop failures and labour shortage in China. Another factor 
indicated was the reduced competition in the Union (it is estimated that currently there 
are  only  three  Union  producers,  while  in  2000  there  were  eight).  One  importer 
complained that anti-dumping measures would favour large trading companies instead 
of the traditional ones, which have been trading the product concerned with China for 
decades.  This  importer  defends  the  existence  of  a  license  system  based  on  pre-2001 
data. 

(39)  A group of importers claimed that the Union institutions should initiate a whole new 
investigation instead of partially reopening the anti-dumping investigation which had 
resulted  in  the  imposition  of  measures  which  had  been  in  force  until  the  analogue 
country  judgment.  This  claim  was  based  on  the  fact  that  those  importers  did  not  see 
sufficient evidence for dumping or injury in the present situation of the market. 

(40)  Other importers submitted that they disagreed with the possible use of the IP data if a 
new  dumping  margin  would  needed  to  be  calculated.  According  to  those  importers 
most  recent  data  should  be  used  and  in  particular  the  periods  2010-11  and  2011-12 
were suggested. 

(41)  A  group  of  importers  considered  that  the  partial  reopening  of  the  investigation  is  in 
breach  of  Article  266  of  the  Treaty  on  the  Functioning  of  the  European  Union. 
According  to  those  importers,  the  case-law12  mentioned  in  the  second  reopening 
Notice should be recalled only if measures are annulled or declared invalid due to an 
erroneous injury determination. In their own  words, "the Community institutions  did 
not  blunder  at  the  stage  of  determining  injury,  but  as  early  as  assessing  whether  the 
products concerned were dumped at all". As in this case the original Regulation was 
declared invalid due to the determination of normal value, the importers claimed that 
such case-law does not apply. 

(42)  Finally, several importers recommended Turkey to be used as analogue country. At a 
hearing, one importer suggested contacting the authorities of Japan and Korea, as also 

12 

Case T-2/95 Industrie des poudres sphériques (IPS) v Council [1998] ECR II-3939 and Case C-458/98 
P Industrie des poudres sphériques (IPS) v Council [2000] ECR I-08147. 

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in those countries there would also be companies which manufactured the like product 
during the IP. 

5.3.2.  Analysis of comments following the second reopening notice 

(43)  As  regards  the  many  claims  summarized  under  recital  (38)  above  it  should  be 
underlined that the Commission decided to re-open the initial investigation in a limited 
manner,  restricted  to  the  possible  identification  of  an  analogue  country.  It  did  not 
define a new investigation period, contrary to the approach followed in the case that 
led to the judgment in Industrie des poudres sphériques v Council (Case C-458/98 P 
[2000] ECR I-8147). This was based on the consideration that given that antidumping 
duties had been in place, any data collected during a new investigation period would 
have  been  distorted  by  the  existence  of  these  antidumping  duties,  in  particular  with 
regards  to  the  establishment  of  injury.  The  Commission  considers  that  the  points 
raised by the parties on the alleged absence of dumping at the present point in time can 
be  more  appropriately  discussed  in  the  framework  of  an  interim  review  pursuant  to 
Article 11 (3) of the basic Regulation. Whereas in the initial investigation, the analysis 
on  the  existence  of  injury  is  carried  out  ex  post  for  the  investigation  period,  the 
analysis  of  injury  during  an  interim  review  is  done  in  a  prospective  manner,  as  the 
injury observed during the investigation period of the review is likely to be influenced 
by the fact that an antidumping duty is in place. 

(44)  The  parties  concerned  are  reminded  that  if  an  importer  or  another  party  wants  the 
measures  to  be  fully  reviewed,  it  has  the  possibility  to  request  the  initiation  of  an 
interim  review,  as  prescribed  in  Article  11(3)  of  the  basic  Regulation.  The  parties 
concerned have that possibility at any time as the one year period since the imposition 
of  definitive  measures  referred  to  in  Article  11(3)  has  elapsed.  Any  party  that  had 
lodged  a  request  for  review  pursuant  to  Article  11(3)  prior  to  the  analogue  country 
judgement  will  be  contacted  by  the  Commission  services  to  determine  whether  it 
wishes to pursue its request.  

(45)  Concerning the alleged illegality of the partial reopening, it should be noted that the 
mentioned case-law does not imply that a partial reopening might take place only if it 
concerns determination of the injury suffered by the Union industry. What is clarified 
in  case  T-2/95  and  case  C-458/98  P  is  that  "in  the  case  of  an  act  concluding  an 
administrative  proceeding  which  comprises  several  stages,  its  annulment  does  not 
necessarily  entail  the  annulment  of  the  entire  procedure  prior  to  the  adoption  of  the 
contested  act  regardless  of  the  grounds,  procedural  or  substantive,  of  the  judgment 
pronouncing the annulment"13. Therefore it is irrelevant whether the annulment or the 
declaration  of  invalidity  of  a  regulation  relates  to  the  determination  of  injury  or  the 
determination of the normal value. 

(46) 

In respect of the use of IP data, it should be recalled that the second reopening Notice 
concerned a partial reopening of the original investigation and not a new investigation. 
Therefore, only data from the IP could be relevant and should be examined, even more 
so as the export prices used in the comparison would also be pertaining to that period. 
The claims for the use of more recent data, therefore, have to be dismissed. 

5.3.3. 

Investigation following the second reopening notice 

(47) 

In  the  judgement  referred  to  in  recital  (16)  above,  the  Court  specifically  referred  to 
four  countries  from  which,  according  to  Eurostat  data,  there  would  have  been 

13 

Case T-2/95 Industrie des poudres sphériques (IPS) v Council [1998] ECR II-3941. 

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significant imports into the Union under the CN codes 2008 30 55, 2008 30 75 and ex 
2008  30  90.  These  countries  are  Israel,  Swaziland,  Thailand  and  Turkey.  In  view  of 
this, the Commission contacted the authorities of these countries via their Missions to 
the  European  Union.  They  were  all  contacted  before  the  partial  reopening  of  the 
investigation and again at the time of reopening. The Missions concerned, as well the 
Delegations of the European Union to those four countries, were requested to identify 
possible domestic producers of the like product and, if any, to assist in obtaining their 
cooperation.  

(48)  Although  been  contacted  twice,  no  replies  were  received  from  the  Missions  of 
Swaziland  and  Thailand  to  the  European  Union.  Replies  were  received  from  the 
Missions of Israel and Turkey. The Turkish Mission provided addresses of six alleged 
producers, while the Israeli Mission informed the Commission services that there had 
been no production of the like product in Israel during the IP (nor that would be any 
such production at the moment). 

(49)  All six Turkish producers were contacted, five of them twice. Three did not reply at all 
and  the  other  three  informed  the  investigators  that  they  were  not  producing  the  like 
product during the IP. Therefore, although these companies offered to cooperate, they 
were not in a position to provide the Commission with the necessary data. This finding 
was  corroborated  by  a  submission  received  from  a  German  importer  with  producing 
interests  in  Turkey,  which  stated  that  during  the  investigation  period  there  was  no 
production of the like product in Turkey. 

(50)  Despite  the  absence  of  a  reply  from  the  Mission  of  Thailand,  two  Thai  companies, 
from  which  updated  addresses  were  obtained  via  the  European  Union  Delegation  in 
Bangkok,  were  also  contacted,  twice  each.  Those  two  producers  had  already  been 
contacted  during  the  original  investigation  –  but  at  the  time,  this  had  not  resulted  in 
their cooperation. Also this time, one of the producers did not reply at all to the two 
requests while the other replied it did not intend to cooperate in the investigation. 

(51)  Despite the efforts of the Commission via the Mission of Swaziland to the European 
Union  and  the  Delegation  of  the  European  Union  in  Swaziland,  it  has  not  been 
possible to identify one or several producers in Swaziland.  

(52) 

In  view  of  the  suggestion  referred  to  in  recital  (42)  above,  cooperation  was  also 
requested from the authorities of Japan and the Republic of Korea and in parallel the 
Delegations of the European Union in those countries were requested to identify local 
producers  of  the  like  product,  if  any.  The  Korean  authorities  did  not  reply,  but  the 
Commission managed, through the Delegation of the European Union to the Republic 
of Korea, to obtain a name and address of a possible producer of the like product in the 
Republic of Korea. This producer was contacted once but it did not reply to the request 
for cooperation. 

(53)  The Japanese authorities contacted possible Japanese producers, however, according to 
the Japanese authorities, these companies did not want to cooperate in the proceeding 
and also did not want their identities to be forwarded to the Commission.  

5.3.4.  Conclusion on the investigation following the second reopening notice 

(54)  Account taken of the comments made by the parties, the analysis thereof and, in spite 
of  significant  efforts  by  the  Commission  services,  the  lack  of  cooperation  from 
potential third country producers, it was concluded that a normal value on the basis of 
the  price  or  constructed  value  in  a  market  economy  third  country  as  prescribed  by 
Article 2(7)(a) of the basic Regulation could not be determined. 

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5.3.5.  Comments of interested parties following the imposition of provisional measures 

(55) 

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

(56)  Following  the  imposition  of  provisional  measures,  all  three  Chinese  sampled 
cooperating  exporting  producers  and  two  unrelated  Union  importers  questioned  the 
use of Union industry prices for the calculation of normal value. It was submitted that 
normal  value  should  have  been  calculated  on  the  basis  of  the  PRC  production  costs 
account  taken  of  any  appropriate  adjustments  relating  to  the  differences  between  the 
EU and the PRC markets.  

5.3.6.  Analysis of comments following the imposition of provisional measures 

(57) 

In  this  respect  it  is  noted  that  the  use  of  information  from  a  non-market  economy 
country and in particular from companies which have not been granted MET would be 
contrary to the provisions of Article 2(7)(a) of the basic Regulation. This argument is 
therefore  rejected.  It  was  also  argued  that  data  on  prices  from  all  other  importing 
countries  or  relevant  published  information  could  have  been  used  as  a  reasonable 
solution  account  taken  of  the  lack  of  analogue  country  cooperation.  However,  such 
general  information,  in  contrast  to  the data  used by the  Commission, could not have 
been  verified  and  cross  checked  with  regard  to  their  accuracy  in  line  with  the 
provisions of Article 6(8) of the basic Regulation. This argument is therefore rejected. 
No  other  argument  was  submitted  that  could  cast  doubt  on  the  fact  that  the 
methodology used by the Commission is in line with the provisions of Article 2(7)(a) 
of the basic Regulation and, in particular, the fact that it constitutes in this particular 
case the only remaining reasonable basis for calculation of normal value. 

5.3.7.  Conclusion on normal value 

(58) 

In the absence of any other comments and the fact that despite the significant efforts of 
the Commission services to identify a cooperating producer in an analogue country, it 
has  not  been  possible  to  obtain  data  from  an  analogue  country  producer  for  the 
investigation  period,  recitals  (38)  to  (45)  of  the  provisional  Regulation  are  hereby 
confirmed. 

5.4. 

Export price 

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

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verified  on-the-spot  for  all  the  sampled  Chinese  companies.  Consequently,  the 
company’s export price was adjusted accordingly. 

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

(61) 

5.5. 

(62) 

5.6. 

(63) 

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

Comparison 

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

Dumping margins 

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

– 

– 

– 

– 

Yichang Rosen Foods Co., Ltd, Yichang, Zhejiang: 139,4 %, 

Huangyan No 1 Canned Food Factory, Huangyan, Zhejiang: 86,5 %, 

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

Cooperating exporting producers not included in the sample: 131 %, 

All other companies: 139,4 %. 

6. 

IMPLEMENTATION OF THE XINSHIJI JUDGMENT  

6.1. 

Comments of interested parties 

6.1.1.  Premature reopening 

(64)  The exporters concerned and a group of importers argued against the partial reopening 
prior to the delivery of the judgment in case C-338/10.  It was argued that reopening 
the investigation while the validity of the original Regulation was challenged and, in 
the opinion of the parties concerned, the act was likely to be declared void, breached 
the principles of proportionality and of good administration in the light of Article 41 of 
Charter  of  Fundamental  Rights  of  the  European  Union  as  it  unnecessarily  placed  an 
undue  burden  on  the  parties  concerned  to  devote  significant  financial  and  personal 
resources to the reopened procedure.  

(65) 

In  addition,  the  same  parties  also  argued  that  reopening  the  investigation  before  the 
judgment  in  the  appeal  case  C-195/11P  was  premature  and  contrary  to  Articles  266 
and  264  TFEU  and  Article  60(2)  of  Statute  of  the  Court  of  Justice  alleging  that  the 
Commission  was  anticipating  the  success  of  its  own  appeal.  Such  initiation 
contradicted  the  relationship  between,  on  the  one  hand,  the  Commission  and  the 
Council  and  on  the  other,  the  Court  and  it  impaired  the  right  to  an  effective  court 
remedy. The importers concerned requested that the Commission first await the final 
decision of the Court before it reopens the anti-dumping proceeding to implement the 
judgment in question.  

(66)  The exporters concerned and a group of importers argued that the reopening violated 
Article  3  of  the  basic  Regulation  as  it  was  based  on  the  data  collected  during  the 

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investigation period (i.e. 1 October 2006 – 30 September 2007) and not during a more 
recent period.  

(67)  A  group  of  importers  challenged  the  fairness  and  impartiality  of  the  Commission's 
conduct  pursuant  to  Article  41(1)  of  the  Charter  of  Fundamental  Rights  of  the 
European Union on the grounds that the Commission allegedly rejected an application 
by  the  Union  importers  to  launch  a  full  interim  review,  even  though  the  official 
Eurostat data already showed an increase on a sustained and lasting basis of the import 
price.  

6.1.2.  Retroactivity  

(68)  The  exporters  concerned  and  a  group  of  importers  argued  that  the  reopening  was 
destined  to  fail  for  the  reason  that  the  infringement  of  the  rights  of  defence  and  the 
failure  to  state  reasons  in  case  of  a  definitive  anti-dumping  Regulation  cannot  be 
rectified  in  isolation  and  retroactively.  In  particular,  it  was  argued  that  the  rights  of 
defence  of  the  interested  parties  were  to  be  protected  during  the  on-going  anti-
dumping proceeding, i.e. before adoption of the measure, and the proper statement of 
reasons for the definitive anti-dumping regulation was to be provided no later than at 
the adoption of the original Regulation.  

(69) 

It was also argued that a legal act based on an inadequate statement of reason is, and 
remains, ineffective from the start and the intended measure can only become effective 
by adopting a new legal act with a proper statement of reasons.  

6.1.3. 

Inadequate disclosure 

(70)  The exporters concerned and a group of importers claimed that the disclosure was not 
sufficient to remedy the legal errors identified by the General Court for the reasons set 
out below.  

(71)  The exporters concerned together with a group of importers argued that the violation 
of  EU  law  found  by  the  General  Court  affected  the  entirety  of  the  findings  and  the 
outcome of the injury margin calculation, which required a new process to be launched 
taking into account the most recent injury data.  

(72)  Furthermore,  the  same  parties  argued  that  the  Commission  failed  to  recognise 
correctly the scope and consequences of its infringement. It was argued that, contrary 
to the Commission's interpretation, the legal infringements established by to General 
Court did not relate exclusively to the calculation of the 2% uplift of the import costs 
of the Chinese products (post-importation costs) and the transport costs of the products 
produced  by  Union  producers.  The 
those 
infringements related at the very least to the entire determination of the injury margin.  

importers  concerned  argued 

that 

(73) 

In this context it was argued that the disclosure sent at the reopening failed to address 
the question of the comparability of the level of trade and how the method chosen by 
the  Commission  for  the  comparison  of  the  import  and  Union  prices  was  justified 
against  the  background  of  the  market  environment  concerned,  i.e.  whether  the 
products  produced  by  Union  producers  and  the  imported  goods  are  in  fact  in 
competition  with  each  other  'in  the  warehouse  of  the  Hamburg  importers'.  The 
exporters concerned and a group of importers argued that the information on the level 
of trade determination provided at the time of reopening  remained far  too general to 
enable the parties to understand why the comparison of the import price and the Union 
industry price was done at the same level of trade and it largely left unexplained the 
factors which emerged from the investigation on which that calculation was based. It 
did not deal with the issue why the 2% uplift in question, which contained neither the 

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operating  and  administrative  expenses  (SG&A)  nor  a  profit  margin  of  the  importers, 
was appropriate to achieve comparability of the selling prices of the Union producers 
with the import prices of the exporting Chinese producers.  

(74)  The  same  parties  argued  that  no  findings  of  any  kind  were  made  regarding  the 
assumption that the Union producers sold the goods exclusively via importers. Also, it 
was argued that the underlying reasoning for the selected level of trade that the Union 
producers  sold  exclusively  to  importers  was  refuted  since  according  to  the  disclosed 
information  only  62%  of  the  sales  of  Union  producers  went  to  the  independent 
importers.  The  parties  argued  that  the  Commission  appeared  to  ignore  the  fact  that 
allegedly 38% of the Union production had not been sold through importers, meaning 
that in respect of these sales imported products were competing at a different level of 
trade.  For  this  part  of  sales,  it  was  argued,  the  method  used  by  the  Commission  to 
determine  the  injury  margin  was  inappropriate  as  the  importers'  prices  should  have 
been  adjusted  by  adding  post-importation  costs,  selling,  general  and  administrative 
expenses and an appropriate profit margin of the independent importer. In the light of 
these  corrections  the  injury  margin  would  have  been  reduced  for  38%  of  the  Union 
goods, which would lead to an overall reduction in the injury margin and a following 
substantial reduction in the anti-dumping duties.  

(75)  As  a  result,  the  parties  argued  that  the  Commission  failed  to  develop  an  appropriate 
method to determine the injury margin for all imports which would have taken account 
of the actual market conditions. It was argued that there was a need for differentiated 
consideration of the sales of the products of the Union producers for the determination 
of  the  injury  margin  in  view  of  the  different  distribution  channels  of  the  Union 
producers. 

(76)  The parties called for the Commission to provide a detailed description and analysis of 
the  evidence  verified  in  respect  of  trade  flows  and  related  volumes  supporting  its 
findings and to disclose that relevant information, which was not confidential.  

(77)  A group of importers also contested the "stereotype reference" to the confidentiality of 
the data as a result of which the exporting producers and Union importers were barred 
from access to relevant sources necessary for them to determine whether, in the light 
of the structure of the market, the adjustment in dispute was appropriate in that it made 
it possible to compare the export price and the Union industry price at the same level 
of  trade.  The  importers  concerned  argued  that  this  claim  was  upheld  by  the  General 
Court in para 86 of the Xinshiji judgment. 

6.1.4.  Transport costs 

(78)  The exporters concerned opposed the increase of the Union industry's ex-works selling 
price to include the costs of delivering to the importer's warehouse on the grounds that 
it goes against the concept of internal market and that the trade defence measures are 
not meant to remedy cost disadvantages of the Union industry due to the location of its 
production facilities.  

(79)  The exporters concerned and a group of importers argued that the Commission should 
have  taken  into  account  the  fact  that  the  importers  had  higher  transhipment  costs 
because  the  Chinese  products  were  delivered  in  containers,  while  the  products 
produced by Union producers were palletized for transportation by truck and therefore 
could  immediately  be  re-expedited  to  customers  without  any  further  manipulation, 
which reduced the handling charges by 50% or 7 EUR/tonne.  

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(80)  A group of importers argued that the Commission overlooked, for a percentage of the 
Union  industry  products  which  were  in  fact  distributed  via  an  importer,  that  the 
transport costs for the Union industry goods to the importers' warehouse were incurred 
only if the preserved mandarins had been 'physically' made available in the warehouse 
of the importer concerned. In fact, however, the bulk of the products sold by the Union 
producers  via  importers  were  delivered  directly  by  the  Union  producers  to  the 
importers' customers. This was claimed to  procure a considerable  cost  advantage  for 
the Union producers compared to imported products and, if it had been properly taken 
into consideration, a smaller injury margin would have resulted than that determined 
on the basis of the Commission's calculation method. 

(81)  The association of importers and some importers objected to the figure (90 EUR) used 
as  a  basis  for  the  calculation  of  the  transport  costs.  The  parties  claimed  that  the 
transport  costs  chosen  were  too  high,  referring  probably  to  transport  by  truck. 
However,  according  to  the  information  of  the  parties,  the  majority  of  goods  was 
transported by vessels, which is a much cheaper mode of transport. 

(82)  The  parties  asked  for  an  explanation  concerning  the  inclusion  of  terminal  handling 
charges  and  the  costs  for  trucking  to  the  importer's  premises  in  the  post-importation 
costs.  

6.2. 

(83) 

(84) 

(85) 

Analysis of comments 

In respect of the argument that the investigation should not have been reopened while 
the  validity  of  the  original  Regulation  had  been  challenged  in  case  C-338/10  (recital 
(64), the Commission explained that it acted under the presumption of legality.  

In respect of claims concerning the premature reopening subject to the pending appeal 
case C-195/11P (recital (65)) the Commission considers the argument without object, 
given  that  the  re-opening  was  based  on  the  findings  of  the  General  Court. 
Furthermore, the appeal has in the meantime been withdrawn. 

In respect of the claims for a new investigation it has to be underlined that the partial 
reopening has as its objective to remedy only of the violation of the rights of defence 
identified  by  the  General  Court,  not  to  reopen  the  entire  proceeding.  However,  the 
Commission will advise the parties concerned that they have the possibility to request 
the  initiation  of  an  interim  review,  as  prescribed  in  Article  11(3)  of  the  basic 
Regulation, if they want the Institutions to verify their claim that on the basis of more 
recent data, there is no more injury. 

(86)  With regards to the claim that the injury analysis should be based on more recent data 
(recital  (66)),  it  is  observed  that  any  more  recent  data  will  be  influenced  by  the  fact 
that an  antidumping  duty  has been in place. Therefore, the appropriate instrument to 
analyse  more  recent  data  is  an  interim  review  as  prescribed  in  Article  11(3)  of  the 
basic Regulation, and not a new investigation (see also recital (43) above). 

(87)  As regards the doubt concerning the impartiality and fairness of the proceeding (recital 
(67)), this is based on a misunderstanding that the Commission rejected the request for 
an interim review. The Commission's Services informed the respective parties by letter 
of  6  September  2011  that  on  the  basis  of  the  information  provided  to  that  date  no 
decision could be taken whether or not a review could be initiated. The points which 
required  further  clarification  or  evidence  were  outlined.  The  parties  were  informed 
about  this  at  the  hearing  of  29  February  2012  and  were  invited  to  continue  the 
discussion  with  the  relevant  Commission  service.  The  Commission  services  will 
inform them that they can pursue their request as of the date of entry into force of this 

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Regulation.  The  one-year  period  foreseen  in  Article  11  (3)  of  the  basic  Regulation 
does not apply in the case at hand, as this would run counter its objective, which is that 
there  should  be  a  minimum  amount  of  time  between  the  initial  investigation  period 
and  an  interim  review.  In  the  present  case,  this  minimum  amount  of  time  has  been 
observed. 

(88)  As regards the argument concerning the retroactive remedy of the breach of rights of 
defence  (recital  (68))  the  Commission  considers  that  as  a  consequence  of  the 
judgement  of  the  General  Court,  the  investigation  has  been  re-opened  at  the  point 
where the illegality occurred. The parties have now a possibility to exercise their rights 
to  the  extent  they  were  prevented  from  doing  as  established  by  the  General  Court. 
Furthermore, the duties will be imposed only for the future. Against this background 
the Commission considers that there is no  issue of retroactive remedy  as claimed by 
the parties and this argument of the parties has to be therefore dismissed. 

(89)  As regards the argument concerning the inadequate statement of reasons (recital (69)), 
the very purpose of the reopening is to remedy the lack of reasoning and to base the 
new legal act on a complete statement of reasons. It is therefore considered that this 
argument of the parties is addressed. 

(90) 

In respect of the scope of the judgment (recital (72)) the purpose of the reopening is to 
establish  the  appropriate  level  of  trade,  and  in  particular  to  clarify  why  the  post-
importation cost adjustment of the CIF export price was necessary to ensure that the 
comparison of the export price and of the Union industry price was done at the same 
level of trade. The argument of the parties has to be, therefore, dismissed. 

(91)  As  regards  the  claims  concerning  the  deficiency  of  the  disclosure  document  of  5 
December 2011 in respect of the explanation of level of trade applied in this case (in 
particular, recitals (73) to (76)), the parties were provided with additional information 
and  explanation  at  several  occasions,  namely  in  points  4  and  5  of  the  disclosure 
document of 5 December 2011 as well as during the hearings of 29 February 2012.  

(92)  For the sake of full clarity on this point, the findings concerning the level of trade are 
summarised  as  follows:  (i)  The  investigation  showed  that  the  canned  mandarins  are 
only produced in one Spanish region (Valencia) and are mainly sold in Germany and 
United Kingdom. The proportion of Union sales to Germany and United Kingdom was 
established to represent 62% of the total Union sales. (ii) On the basis of the verified 
data  it  was  established  that  during  the  IP  the  Union  producers  and  the  Chinese 
exporters sold essentially to the same customers, i.e. to traders or distributors. (iii) For 
these reasons, the price comparison between the imports from the exporting producers 
and the sales of the Union producers was made for the exporting producers at frontier 
level  (CIF)  and  for  the  Union  producers  at  factory  level  (ex-works)  adjusted  to  the 
importers' warehouses. (iv) This methodology required the following adjustments: on 
the one hand, a post-importation costs adjustment of the Chinese CIF export prices to 
bring  the  goods from  the  port to the importers' warehouses;  this adjustment, fixed at 
2%,  was  based  on  the  collected  and  verified  invoices  and  the  respective  calculation 
was  disclosed  to  the  interested  parties  in  the  annex  to  the  disclosure  document  of  5 
December  2011.  On  the  other  hand,  the  Union  ex-works  prices  were  increased  to 
reflect  the  cost  of  freight  to  bring  the  goods  from  the  producers  (Valencia)  to  the 
importers'  premises  (Germany  and  United  Kingdom).  This  freight  adjustment  was 
calculated based on the established transport costs from Valencia to Hamburg. Given 
that not all sales of Union producers were delivered to Germany and United Kingdom, 

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this  average  was  lowered in  proportion of  the share of sales to Germany and  United 
Kingdom (62%) and in proportion of direct sales.  

(93)  As regards the proportion of direct sales of the Union producers, it has been in a range 
of between 2% and 12% during the IP. The precise percentage cannot be disclosed for 
confidentiality reasons. 

(94)  Furthermore,  it  was  argued  that  a  differentiated  approach  in  determination  of  the 
appropriate level of trade in respect of the direct sales of the Union producers (recital 
(72))  should  have  been  developed.  In  this  respect  it  is  to  be  noted  that  based  on  the 
verified findings none of the Chinese imports were sold directly during the IP. Since 
there  were  not  matching  direct  sales  on  the  side  of  the  Chinese  exports,  it  was  not 
possible  to  develop  a  differentiated  approach  for  establishing  a  level  of  trade  for  the 
proportion  of  direct  sales  of  Union  producers.  Instead,  for  the  purpose  of  the  injury 
margin calculation, the direct sales of Union producers were adjusted back to the ex-
works level and subjected to the freight adjustment described in recital (92) point (iv) 
above.  Against  this  background,  the  respective  claim  of  the  parties  has  to  be 
dismissed. 

(95)  As regards the claim of the parties that the adjustment of the CIF export price should 
have included the SG&A and a reasonable profit margin (recital (73)) it is noted that 
had  the  Commission  adjusted  the  export  CIF  price  by  adding  SG&A  and  profit,  it 
would have brought the sales of imported goods to the retailer level. In such case the 
comparison between the Chinese export prices and the Union sales prices would have 
been carried out at different levels of trade. For this reason, the claim of the parties has 
to be dismissed. 

(96)  As regards the argument of the parties that it stems from the disclosure document of 5 
December  2011  that  38%  of  sales  of  Union  producers  in  the  IP  were  direct  sales 
(recital (74)), it was explained to the parties at the hearings of 29 February 2012 that 
this  conclusion  was  mistaken.  The  figure  of  62%  of  Union  industry  sales  that  were 
made in Germany and United Kingdom relates to the geographical distribution of the 
sales  and  has  no  relevance  as  regards  the  identification  of  the  type  of  customer,  and 
thus as regards the identification of direct sales. It may only be deduced from this fact, 
and it is confirmed, that the remaining 38% of the sales of Union producers were made 
outside Germany and the United Kingdom. Since the parties' assumption on the level 
of trade of 38% of sales of Union producers is incorrect, the subsequent claim based 
on this assumption concerning the need to recalculate the injury margin has to be also 
dismissed. 

(97)  Regarding the claim on detailed disclosure of trade flow and related volumes (recital 
(76)), it is recalled that the facts and figures underlying the choice of methodology to 
determine the level of trade in this case have been addressed in the points 3 to 7 of the 
disclosure document of 5 December 2011. The parties are referred to this information 
as well as the explanation provided at the hearings of 29 February 2012. For sake of 
clarity, the underlying trade flows are explained in detail in recital (92) above.  

(98)  As regards the argument on a 'stereotype reference to confidentiality' (recital (77)), the 
Commission considers that the information that was kept confidential related to the (i) 
percentage of direct sales and (ii) the information used for the calculation of the 2% 
uplift based on invoices and data gathered during the verification visit. In this respect 
it  is  noted  that  the  invoices  constitute  information  confidential  by  nature.  The  non-
confidential  summary  of  the  latter  has  been  provided  in  the  annex  to  the  disclosure 
document of 5 December 2011. As regards the direct sales the Hearing Officer at the 

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joint hearing of 29 February 2012 confirmed that actual figures about direct sales are 
confidential  information  and  offered  to  examine  on  request  of  the  interested  parties 
how  the  actual  data  in  the  confidential  file  was  used  by  the  Commission  services 
responsible for the investigation and to inform the parties whether in his view the data 
were  correctly  reflected  in  the  findings.  The  parties  did  not  request  it.  For  these 
reasons the Commission considers that the requirement to disclose all but confidential 
information was met. Furthermore, given that the data under assessment is more than 5 
years  old,  the  Commission  considers  that  it  can  disclose  at  this  stage  that  the 
percentage of direct sales is between 2% and 12%.  

(99)  Concerning  the  objection  of  the  parties  to  the  freight  adjustment  of  the  Union  ex-
works selling price (recital (78)) the Commission considers the adjustment in question 
was made to bring the goods to the importer's warehouse, i.e. to the same level of trade 
as the Chinese exports. This adjustment was based on the specific circumstances of the 
relevant market where the canned mandarins are only produced in one Spanish region 
(Valencia)  and  are  mainly  sold  in  Germany  and  United  Kingdom.  It  was  made  to 
achieve the fair comparison between export price and the Union price at the same level 
of trade, not to offset the claimed cost disadvantage of the Union producers due to the 
location  of  their  production  facilities.  The  argument  of  the  parties  is  therefore 
dismissed. 

(100)  Concerning  the  argument  that  the  Commission  should  have  taken  into  account  the 
higher  costs  of  importers  because  the  Chinese  products  were  delivered  in  containers 
while the Union industry products were palletised which resulted in the reduction of 
handling charges by the Union producers (recital (79)), it is noted that the adjustments 
made  covered  only  the  cost  of  bringing  the  goods  to  the  importer's  warehouse.  The 
subsequent costs incurred in the context of the shipment of the goods to the retailers 
are  to  be  borne  after  the  defined  level  of  trade  and  cannot  be  therefore  taken  into 
account. For this reason the argument of the parties is dismissed.  

(101)  Concerning the argument that the transport costs of the Union producers should have 
been reduced to take into account cases where the products were delivered directly to 
the customers of importers as claimed by the latter (recital (80)), it is recalled that the 
freight  adjustment  of  the  Union  ex-works  sales  price  was  based  on  the  established 
costs of physical delivery to the warehouse in Hamburg (90 EUR) based on collected 
invoices,  because  the  warehouse  Hamburg  is  the  appropriate  level  of  trade  for 
comparing export price and prices of the Union product. The freight adjustment is not 
justified  on  the  ground  that  it  includes  total  transport  costs  between  the  Union 
producer  and  the  retailer  (which  would  be  higher  than  the  costs  for  delivery  to  the 
warehouse), but on the ground that in the light of the specificities of the market for the 
product concerned, the warehouse in Hamburg is the appropriate level of trade. In this 
context, the argument raised by the parties appears immaterial. 

(102)  The  parties  claimed  that  the  applied  freight  adjustment  was  too  high  because  it  was 
based on the transport costs by truck (recital (81)). In this context, it is recalled that the 
freight adjustment was based on the established costs of physical delivery to Hamburg, 
which included both truck and boat. Therefore, the adjustment requested by the parties 
had  already  been  included  in  the  calculation  of  freight  cost  to  Hamburg.  It  was 
therefore not necessary to verify the data submitted by the parties during the hearing, 
as  during  the  original  investigation,  the  costs  for  delivery  to  Hamburg  had  been 
established on the basis of the verified data of the EU producers. 

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(103)  Regarding the comment made by the applicant concerning the calculation of the post-
importation  cost  (recital  (82)),  it  was  stated  that,  as  explained  in  paragraph  9  of  the 
disclosure document sent on 5 December 2011, both terminal handling charges and the 
costs  for  trucking  to  the  importer's  premises  were  included  in  the  calculation.  No 
ocean or insurance freights were included in terminal handling charges as these costs 
were  already  included  in  the  CIF  price  gathered  and  verified  during  the  on-spot 
verifications  at  the  exporter's  premises.  Thus,  if  the  Commission  had  included  those 
costs in the calculation of the post-importation costs this would have implied double-
counting. 

6.3. 

Procedure 

(104)  On 5 December 2011 the Commission submitted a disclosure document with facts and 
figures relating to the grounds on which the General Court annulled the measures. All 
interested parties were invited to comment. 

(105)  On 29 February 2012 the Commission held hearings with all parties that requested so, 
including  a  joint  hearing  with  the  Hearing  Officer  of  the  exporters  concerned  and  a 
group of importers. 

(106)  On 26 March 2012 one of the interested parties informed the Commission that in view 
of the judgment in case C-338/10 it considered the partial reopening concerning post-
importation cost without purpose.  

(107)  On  17  July  2012  the  Commission  responded  that  in  the  light  of  the  reopening  of  19 
June 2012 it was considered that both partial reopenings are still pending and none of 
these investigations had become without purpose. 

6.4. 

Conclusion 

(108)  The  Xinshiji  judgment  of  General  Court  has  been  implemented  by  providing 
additional reasoning, information and explanation to the parties on the reopened point 
of the original investigation. The parties were given opportunity to comment and to be 
heard. All arguments raised have been addressed and duly taken into account.  

(109)  Account  taken  of  the  comments  made  by  the  parties  and  the  analysis  thereof  it  was 
concluded that the arguments and facts raised by the interested parties did not show a 
need to modify the contested injury margin calculation.  

(110)  Therefore,  the  injury  margin  determined  in  the  original  investigation  is  hereby 

confirmed. 

(111)  On  the  basis  of  the  above  it  was  concluded  that  the  implementation  of  the  Xinshiji 
judgment should take the form of re-imposing the definitive anti-dumping duty for the 
applicants in the case in question.  

7. 

INJURY 

7.1. 

Union production and Union industry 

(112)  In the absence of substantiated comments, the findings set out in recitals (52) to (54) 

of the provisional Regulation are confirmed.  

7.2. 

Union consumption 

(113)  One of the exporting parties argued that there is a discrepancy between the level of the 
consumption set out in the safeguard Regulation No 658/2004 and the level set in the 
provisional Regulation. It is underlined that the difference in the level of consumption 
was basically due to the different product scope in the current investigation and to the 

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different  number  of  Member  States  in  those  two  investigations.  No  further  and 
substantiated information was received in this respect. The findings set out in recitals 
(55) to (57) of the provisional Regulation are therefore confirmed. As a corollary, the 
subsequent parts of the analysis which draw on consumption are also confirmed in this 
respect.  

7.3. 

Imports from the country concerned 

7.3.1.  Volume and market share of imports of the product concerned  

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

(115)  Some parties argued that post-IP volumes should also be examined to assess whether 
Chinese  imports  are  increasing.  It  is  to  be  noted  that  trends  on  imports  from  China 
were  evaluated  for  the  period  2002/2003  to  2006/2007  and  a  clear  increase  was 
observed. In accordance with the provisions of the basic Regulation, post-IP events are 
not  taken  into  account,  except  in  exceptional  circumstances.  In  any  event,  as  stated 
below in recital (136) the level of imports post-IP was examined and was found to be 
significant.  

7.3.2.  Price undercutting 

(116)  Three  cooperating  exporting  producers  contested  the  Commission's  findings  on 
undercutting.  One  contested  the  methodology  used  to  calculate  undercutting  and 
requested an adjustment to reflect costs borne by traders for their indirect sales. Where 
justified, calculations  were  adapted. The revised comparison  showed that, during the 
IP, imports of the product concerned were sold in the Union at prices which undercut 
the Union industry's prices by a range of 18,4% to 35,2% based on the data submitted 
by the sampled cooperating exporting producers. 

7.4. 

Situation of the Union industry 

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

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

7.5. 

Conclusion on injury 

(119)  Following  disclosure  of  the  provisional  Regulation,  some  importers  and  some 
exporting producers claimed, with reference to recitals (83) to (86) of the provisional 
Regulation, that data used by the Commission to establish the injury level was neither 

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correct nor objectively evaluated. They argued that almost all injury-related indicators 
showed positive trends and that therefore no evidence of injury can be found. 

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

(121)  On  this  basis,  it  is  considered  that  the  conclusions  regarding  the  material  injury 
suffered by the Union industry as set out in the provisional Regulation are not altered. 
In the absence of any other substantiated information or arguments, they are therefore 
definitively confirmed. 

8. 

CAUSATION 

8.1. 

Effect of the dumped imports  

(122)  Some  parties  argued  that  the  volume  of  the  Chinese  imports  had  been  stable  since 
1982  and  that  therefore  they  could  not  have  caused  injury  as  explained  in  the 
provisional Regulation (see recital (58)). Indeed,  as explained above in recital  (114), 
imports  from  China  during  the  period  examined  have  increased  significantly  to  the 
detriment of the EU industry market share. Moreover, the argument refers to the trend 
in  imports  that  exceed  well  above  the  period  in  question  therefore  the  argument  is 
rejected.  

(123)  As mentioned in recital (116) above, it is definitively concluded that during the IP, the 
prices of imports from the sampled Chinese exporting producers undercut the average 
Union industry prices by percentages ranging from 18,4% to 35,2%. The revision of 
the undercutting margin leaves unaffected the conclusions on the effect of the dumped 
imports set out in recitals (100) and (101) of the provisional Regulation. 

8.2. 

Exchange rate fluctuations 

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

8.3. 

Supply and price of raw materials 

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

(126)  However,  official  data  from  the  Spanish  Ministry  for  Agriculture  confirm  that  the 
quantity  available  for  the  canning  industry  is  more  than  sufficient  to  cover  all  the 
production capacity of the Spanish producers. 

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

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

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

8.4. 

Quality differences 

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

8.5. 

Cost increases  

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

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

8.6. 

Aid schemes  

(133)  It was alleged that the EC aid schemes caused artificial growth of processing in the EC 
and then encouraged reduced levels of raw material supply for the product concerned. 
This allegation was of a general nature and was not sufficiently substantiated. In any 
event, the schemes in question were modified in 1996 when the aid was allowed to the 
farmers  instead  than  to  the  processors  of  the  product  concerned.  The  Commission's 
analysis  has  not  detected  any  residual  effects  during  the  investigation  period  which 

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could break the causal link. Regarding supply, reference is made to recitals (128) and 
(129) above.  

8.7. 

Conclusion on causation 

(134)  In the absence of any further new and substantiated information or arguments, recitals 

(87) to (101) of the provisional Regulation are hereby confirmed. 

(135)  In  the  light  of  the  above,  the  provisional  finding  of  the  existence  of  a  causal  link 
between  the  material  injury  suffered  by  the  Union  industry  and  the  dumped  Chinese 
imports is confirmed. 

9. 

UNION INTEREST 

9.1. 

Developments after the investigation period 

(136)  As from 9 November 2007 imports from the PRC were subject to registration pursuant 
to  the  Commission  Regulation  (EC)  No  1295/2007  of  5  November  2007  making 
imports  of  certain  prepared  or  preserved  citrus  fruits  (namely  mandarins,  etc.) 
originating  in  the  People’s  Republic  of  China  subject  to  registration  ('Registration 
Regulation').14  This  was  done  with  a  view  to  the  possible  retroactive  imposition  of 
anti-dumping duties. Consequently and exceptionally, developments after the IP have 
also been analysed. Eurostat data confirms that imports from China remain significant 
and  this  has  been  corroborated  by  certain  importers.  The  volume  for  the  last  ten 
months after the IP reached a level of 74.000 tonnes at stable low prices. 

9.2. 

Ability of Union producers to supply the Union market 

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

9.3. 

Interest of the Union industry and suppliers 

(138)  One  importers'  association  alleged  that  any  anti-dumping  measures  without  any 
limitation  of  quantities  would  not  help  protect  the  Spanish  industry  but  would 
automatically trigger illegal trading activities. This is an argument which rather points 
to  the  need  for  the  institutions  to  ensure  proper  monitoring  of  the  enforcement  of 
measures, rather than against the benefit measures could have for Union producers.  

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

14 

OJ L 288 6.11.2007, p. 22. 

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(140)  In  the  absence  of  any  other  new  and  substantiated  information  or  argument  in  this 
respect,  the  conclusion  made  in  recitals  (103)  to  (106)  and  (115)  of  the  provisional 
Regulation regarding the interest of the Union industry are hereby confirmed. 

9.4. 

Interest of unrelated importers/traders in the Union 

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

(142)  Nevertheless  the  majority  of  the  importers,  should  definitive  measures  be  imposed, 
would  prefer  a  measure  which  contains  also  quantitative  elements.  This  is  not 
considered adequate, as explained below in recital (156). 

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

(144)  The  foregoing  underlines  that,  on  balance,  the  potential  impact  of  measures  on 
importers/traders  would  not  be  disproportional  to  the  positive  effects  emanating 
therefrom.  

9.5. 

Interest of users/retailers 

(145)  One user, representing less than 1% of consumption, submitted generic comments on 
the  reduced  availability  of  mandarins  in  the  EU  and  on  the  superior  quality  of  the 
Chinese  product.  He  was  invited  to  further  cooperate  providing  individual  data  but 
declined  and  did  not  substantiate  his  allegations.  Another  retailer,  a  member  of  the 
main importer's association, generally opposed a price increase. No other submission 
concerning  the  interest  of  users/retailers  was  received  in  the  course  of  the 
investigation.  In  this  situation  and  in  absence  of  any  substantiated  comments  from 
users/retailers,  the  conclusions  made  in  recitals  (109)  to  (112)  of  the  provisional 
Regulation are hereby confirmed. 

9.6. 

Interest of consumers 

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

9.7. 

Conclusion on Union interest 

(147)  The  additional  analysis  above  concerning  the  interests  at  stake  has  not  altered  the 
provisional  conclusions  in  this  respect.  Data  of  the  sampled  cooperating  importers 
were verified and confirmed that the canned mandarins sector represents for them less 
than 6% of their total turnover and that they achieved, in average terms a comfortable 
result during both the investigation period and the period of 2004-2008 examined, so 
the impact of the measures on importers will be minimal. It has been also ascertained 
that the financial impact on the final consumer would be negligible, considering that 
marginal  quantities  per  capita  are  bought  in  the  consumer  countries.  It  is  considered 

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that  the  conclusions  regarding  the  Union  interest  as  set  out  in  the  provisional 
Regulation have not changed. In the absence of any other comments, these conclusions 
set out in the provisional Regulation are therefore definitively confirmed. 

10. 

DEFINITIVE MEASURES 

10.1. 

Injury elimination level 

(148)  One importer claimed that the profit margin at the level 6,8% used as reference at the 
provisional stage is overestimated. In this respect it should be noted that the same level 
was  used  and  accepted  for  safeguard  measures  as  the  actual  profit  achieved  by  the 
Union  industry  in  the  period  1998/  99  to  2001/02.  It  refers  to  profits  of  the  Union 
producers  in  a  normal  trading  situation  before  the  increase  in  imports  which  led  to 
injury in the industry. The argument is therefore rejected. 

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

(150)  One  party  made  comments  on  the  undercutting  and  underselling  calculation.  Where 

warranted adjustments were made at definitive stage. 

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

– 

– 

– 

– 

Yichang Rosen Foods Co., Ltd., Yichang, Zhejiang: 100,1%, 

Huangyan No. 1 Canned Food Factory, Huangyan, Zhejiang: 48,4%, 

Zhejiang  Xinshiji  Food  Co.,  Ltd.,  Sanmen,  Zhejiang  and  related  producer 
Hubei Xinshji Foods Co., Ltd., Dangyang City, Hubei Province: 92,0%, 

Co-operating exporting producers not included in the sample: 90,6%, 

All other companies: 100,1%. 

10.2.  Retroactivity 

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

10.3.  Definitive measures 

(153)  In  view  of  the  conclusions  reached  with  regard  to  dumping,  injury,  causation  and 
Union  interest,  and  in  accordance  with  Article  9(4)  of  the  basic  Regulation,  a 
definitive  anti-dumping  duty  should  be  imposed  at  the  level  of  the  lowest  of  the 
dumping  and  injury  margins  found,  in  accordance  with  the  lesser  duty  rule.  In  this 
case, the duty rate should accordingly be set at the level of the injury found. 

EN 

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(154)  On  the  basis  of  the  above  and  in  line  with  corrigendum  published  in  the  Official 

Journal L 25815 the definitive duty should amount as follows: 

– 

– 

– 

 Yichang Rosen Foods Co., Ltd., Yichang, Zhejiang: 531,2 Eur/ton, 

 Huangyan No.1 Canned Food Factory Huangyan, Zhejiang:361,4 Euro/ton, 

 Zhejiang Xinshiji Foods Co., Ltd., Sanmen, Zhejiang and its related producer 
Hubei  Xinshiji  Foods  Co.,  Ltd.,  Dangyang  City,  Hubei  Province:  490,7 
Euro/Ton, 

– 

 Co-operating exporting producers not included in the sample: 499,6 Euro/Ton, 

All other companies: 531,2 Euro/Ton. 

10.4. 

Form of the measures 

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

(156)  This option was considered but rejected for, in particular, the following reasons. Anti-
dumping duties are imposed because the export price is lower than the normal value. 
The  amounts  exported  to  the  Union  are  relevant  for  the  analysis  whether  dumped 
imports cause injury. However, these amounts are, normally, irrelevant for the level of 
the  duty  that  should  be  imposed.  In  other  words,  if  it  is  found  that  dumped  imports 
cause  injury,  the  dumping  may  be  offset  by  a  duty  which  applies  as  of  the  first 
shipment imported after the entry into force of the duty. Finally, to the extent that it 
would be found that it is in the Union's interest that during a certain period, products 
may  be  imported  without  imposing  anti-dumping  duties,  Art.  14(4)  of  the  basic 
Regulation allows for suspension under certain conditions.  

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

(158)  Other  parties  have  argued  that  measures  should  exclude  volumes  already  subject  to 
existing  sales  contracts.  This  would  in  practice  amount  to  an  exemption  of  duties 
which  would  undermine  the  remedial  effect  of  measures,  and  is  therefore  rejected. 
Reference is also made to recitals (138) and (139) above.  

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

10.5.  Undertakings 

(160)  At  a  late  stage  in  the  investigation  several  exporting  producers  in  the  PRC  offered 
price  undertakings.  These  were  not  considered  to  be  acceptable  given  the  significant 
price volatility of this product, the risk of duty avoidance and circumvention for this 

15 

OJ L 258, 26.9.2008, p. 74. 

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27 

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product (see recitals (124) and (125) of the provisional Regulation), and the fact that 
no  guarantees  were  contained  in  the  offers  on  the  part  of  the  Chinese  authorities  to 
allow  for  adequate  monitoring  in  a  context  of  companies  not  having  been  granted 
market economy treatment. 

11. 

REGISTRATION 

(161)  Imports  of  the  product  concerned  were  made  subject  to  registration  by  Regulation 
572/2012.  That  registration  should  cease.  The  possibility  of  collecting  retroactive 
duties will be decided upon at a later stage, when full statistical data will be available. 

12. 

DISCLOSURE 

(162)  All  parties  were  informed  of  the  essential  facts  and  considerations  on  the  basis  of 
which  it  was  intended  to  impose  a  definitive  anti-dumping  duty  on  imports  of  the 
product concerned originating in the People's Republic of China. The parties were also 
granted  a  period  within  which  they  could  make  representations  subsequent  to  the 
disclosure.  The  parties  who  so  requested  were  granted  the  opportunity  to  be  heard. 
Two groups of importers requested and were afforded hearings in the presence of the 
Hearing Officer of the Directorate-General for Trade.  

(163)  As  regards  the  Xinshiji  judgment,  the  arguments  brought  forward  had  already  been 
analysed and addressed in the general disclosure document. None of these arguments 
led consequently to the alteration of the essential facts and considerations on the basis 
of  which  it  was  decided  to  confirm  the  injury  margin  determined  in  the  original 
investigation.  With  regard  to  the  analogue  country  judgement,  a  group  of  importers 
repeated  comments  already  made  during  the investigation regarding the scope of the 
partial reopening, the use of IP data and the determination of the normal value. Those 
comments are addressed, respectively, in recitals (43), (46) and (54) above. The same 
group  of  importers  expressed  the  view  that  they  were  in  favour  of  a  system  of 
safeguard  measures  with  quotas  instead  of  anti-dumping  duties.  The  reason  for 
rejecting a quota system is explained above in recital (156). Furthermore it should be 
noted  that  safeguard  measures  can  only  be  imposed  in  certain  situations  with  very 
specific conditions, in compliance with Council Regulation 260/2009 of 26 February 
2009.  It  is  considered  that  anti-dumping  duties  are  the  most  appropriate  way  of 
addressing  injurious  dumping.  This  group  of  importers  also  pointed  out  that,  in 
relation with the issues raised in recital (44) and (85) above, the Commission did not 
open an interim review when requested to do so. It is reiterated that, as of the date of 
the  analogue  country  judgement,  it  was  no  longer  possible  to  conduct  an  interim 
review,  as  there  was  no  more  duty  in  force.  The  Commission  should  resume  the 
analysis of the pending request for interim review as of the date of entry into force of 
this  Regulation.  If  the  analysis  of  the  request  shows  that  the  conditions  set  out  in 
Article  11(3)  of  the  basic  Regulation  are  respected,  an  interim  review  should  be 
initiated as soon as possible. 

(164)  In  summary,  after  having  considered  all  the  comments  after  disclosure  to  interested 
parties of the findings of the investigation, it was concluded that none of them was of 
such a nature as to change the conclusions reached during the investigation. 

13. 

DURATION OF MEASURES 

(165)  In derogation of Article 11 (2) of the basic Regulation, this Regulation shall expire 5 

years after the entry into force of the original Regulation. 

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28 

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HAS ADOPTED THIS REGULATION: 

Article 1 

1. 
A  definitive  anti-dumping  duty  is  hereby  re-imposed  on  imports  of  prepared  or 
preserved  mandarins  (including  tangerines  and  satsumas),  clementines,  wilkings  and  other 
similar citrus hybrids, not containing added spirit, whether or not containing added sugar or 
other sweetening matter, and as defined under CN heading 2008, currently falling within CN 
codes 2008 30 55, 2008 30 75 and ex 2008 30 90 (TARIC codes 2008 30 90 61, 2008 30 90 
63, 2008 30 90 65, 2008 30 90 67 and 2008 30 90 69) and originating in the People's Republic 
of China. 

The  amount of the definitive anti-dumping duty applicable for products described in 

2. 
paragraph 1 produced by the companies below shall be as follows: 

Company 

EUR/tonne 
net 
product  
weight 

TARIC 
additional
code 

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

531,2 

A886 

Huangyan No.1 Canned Food Factory, Huangyan, Zhejiang,  

361,4 

A887 

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

490,7 

A888 

Co-operating exporting producers not included in the sample as set 
out in the Annex 

499,6 

A889 

All other companies 

531,2 

A999 

Article 2 

1. 
In  cases  where  goods  have  been  damaged  before  entry  into  free  circulation  and, 
therefore,  the  price  actually  paid  or  payable  is  apportioned  for  the  determination  of  the 
customs  value  pursuant  to  Article  145  of  Commission  Regulation  (EEC)  No  2454/9316  the 
amount of anti-dumping duty, calculated on the basis of Article 1 above, shall be reduced by a 
percentage which corresponds to the apportioning of the price actually paid or payable. 

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

2. 
apply. 

The  customs  authorities  are  hereby  directed  to  cease  the  registration  of  imports  carried  out 
pursuant to Article 1 of Regulation (EU) No 572/2012. 

Article 3 

16 

OJ L 253, 11.1.1993, p. 3.  

EN 

29 

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

Article 4 

This  Regulation  shall  expire,  in  derogation  from  Article  11  (2)  of  the  basic  Regulation,  on 
31.12.2013. 

Article 5 

Requests  for  review  shall  be  admissible,  in  derogation  from  Article  11  (3)  of  the  basic 
Regulation, as of the entry into force of this Regulation. 

Article 6 

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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Co-operating exporting producers not included in the sample (TARIC additional code A889) 

ANNEX  

Hunan Pointer Foods Co., Ltd., Yongzhou, Hunan 

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

Yichang Jiayuan Foodstuffs Co., Ltd., Yichang, Hubei 

Ninghai Dongda Foodstuff Co., Ltd., Ningbo, Zhejiang 

Huangyan No.2 Canned Food Factory, Huangyan, Zhejiang 

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

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

Guangxi Guiguo Food Co., Ltd., Guilin, Guangxi 

Zhejiang Juda Industry Co., Ltd., Quzhou, Zhejiang 

Zhejiang Iceman Group Co., Ltd., Jinhua, Zhejiang 

Ningbo Guosheng Foods Co., Ltd., Ninghai 

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

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

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

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

Ningbo Wuzhouxing Group Co., Ltd., Mingzhou, Ningbo 

EN 

31 

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