Proposal for a COUNCIL IMPLEMENTING REGULATION  imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain aluminium foils in rolls originating in the People’s Republic of China
Date: 2013-02-12
Institutions: European Commission
Subjects: China, aluminium, anti-dumping duty, import (EU), originating product

EUROPEAN 
COMMISSION 

Brussels, 12.2.2013  
COM(2013) 70 final 

2013/0044 (NLE) 

Proposal for a 

COUNCIL IMPLEMENTING REGULATION  

imposing a definitive anti-dumping duty and collecting definitively the provisional duty 
imposed on imports of certain aluminium foils in rolls 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 aluminium foils in rolls originating in the People's Republic of China. 

General context 

This proposal is made in the context of the implementation of the basic Regulation and is the 
result  of  an  investigation  which  was  carried  out  in  line  with  the  substantive  and  procedural 
requirements laid out in the basic Regulation. 

Existing provisions in the area of the proposal 
Provisional measures were imposed by Commission Regulation (EU) No 833/2012 (OJ L 251, 
18.9.2012, p. 29.). 

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  20  December  2011  the  Commission  initiated  an  anti-dumping  proceeding  concerning 
imports of certain aluminium foils in rolls originating in the People's Republic of China. 

The  Commission  imposed  provisional  anti-dumping  duties  on  these  imports  by  Regulation 
(EU) No 833/2012 of 17 September 2012. 

The attached proposal for a Council Regulation is based on the definitive findings which have 
confirmed  the  existence  of  dumping  causing  injury,  and  the  fact  that  the  imposition  of 
measures  is  not  against  the  overall  Union  interest.  Although  the  final  duty  rates  have  been 
slightly revised, the provisional findings were confirmed. 

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It is therefore proposed that the Council adopt the attached proposal for a Regulation which 
should be published no later than 15 March 2013. 

Legal basis 

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

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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2013/0044 (NLE) 

Proposal for a 

COUNCIL IMPLEMENTING REGULATION  

imposing a definitive anti-dumping duty and collecting definitively the provisional duty 
imposed on imports of certain aluminium foils in rolls 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 9, 

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

Whereas: 

1. 

1.1. 

(1) 

(2) 

1.2. 

(3) 

PROCEDURE 

PROVISIONAL MEASURES 
The  Commission,  by  Regulation  (EU)  No  833/20122  (‘the  provisional  Regulation’) 
imposed  a  provisional  anti-dumping  duty  ('the  provisional  measures')  on  imports  of 
certain aluminium foils in rolls originating in the People's Republic of China ('PRC'). 

It  is  recalled  that  the  proceeding  was  initiated  following  a  complaint  lodged  on  9 
the  European  association  of  Metals  (Eurométaux)  ('the 
November  2011  by 
complainant')  on  behalf  of  producers  representing  more  than  50%  of  the  total  Union 
production  of  certain  aluminium  foil  in  rolls.  The  complaint  contained  prima  facie 
evidence  of  dumping  of  the  said  product  and  of  material  injury  resulting  therefrom, 
which was considered sufficient to justify the initiation of a proceeding. As set out in 
recital  (17)  of  the  provisional  Regulation,  the  investigation  of  dumping  and  injury 
covered  the  period  from  1  October  2010  to  30  September  2011  (the  ‘investigation 
period’  or  ‘IP’).  The  examination  of  trends  relevant  for  the  assessment  of  injury 
covered the period from January 2008 to the end of the IP (‘the period considered’). 

SUBSEQUENT PROCEDURE 

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

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2 

   OJ L 343, 22.12.2009, p. 51. 

OJ L 251, 18.9.2012, p. 29. 

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afforded hearings in the presence of the Hearing Officer of the Directorate-General for 
Trade.  

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

Following  the  publication  of  the  provisional  Regulation,  three  of  the  cooperating 
Chinese  exporting  producers  stated  that  their  names  were  incorrectly  spelt  in  Article 
1(2) of that regulation. Accordingly, a corrigendum to the provisional Regulation was 
published in the Official Journal of the European Union3, in which the correct names 
of these companies were set out. 

PRODUCT CONCERNED AND LIKE PRODUCT 

The product concerned is aluminium foil of a thickness of 0,007 mm or more but less 
than  0,021  mm,  not  backed,  not  further  worked  than  rolled  but  whether  or  not 
embossed,  in  low  weight  rolls  of  a  weight  not  exceeding  10  kg  (‘the  product 
concerned’ or 'aluminium foil in rolls' or 'AHF'). The product concerned currently falls 
within CN codes ex 7607 11 11 and ex 7607 19 10.  

The  product  concerned  is  generally  used  as  a  consumer  product  for  packaging  and 
other household/catering applications. The product definition was not contested.  

The  investigation  has  shown  that  aluminium  foil  in  rolls  produced  in  and  exported 
from  the  PRC,  aluminium  foil  in  rolls  produced and sold in the Union by the Union 
producers  and  aluminium  foil  in  rolls  produced  and  sold  in  Turkey  (the  analogue 
country)  by  the  cooperating  Turkish  producer  have  the  same  basic  physical  and 
technical characteristics as well as the same basic uses and are therefore considered to 
be alike within the meaning of Article 1(4) of the basic Regulation.  

In the absence of any comments regarding the product concerned and the like product, 
recitals (18) to (20) of the provisional Regulation are hereby confirmed.  

SAMPLING 

In the absence of any comments on sampling, recitals (21) to (26) of the provisional 
Regulation are hereby confirmed. 

(4) 

(5) 

2. 

(6) 

(7) 

(8) 

(9) 

3. 

(10) 

4. 

DUMPING 

4.1. 

Market economy treatment (MET) 

(11)  After the provisional disclosure, comments were received from CeDo (Shanghai) Ltd. 
(‘CeDo’)  concerning  the  findings  in  regard  to  criterion  3.  The  company  in  its 
comments and during a hearing with the Hearing Officer, contested the finding that its 
decisions on obtaining financing from abroad were subject to approval of the State and 
thus  created  a  distortion  in  its  financial  situation.  CeDo  claimed  that  the  Chinese 
'Rules  for  the  Implementation  of  Registration  of  External  Debts'  did  not  have  a 
distortive  effect  on  its  financial  situation  as  its  loan  concerned  an  intra-group  loan 
from a related company outside China and was based solely on intra-group financial 
considerations. The company further claimed that the approval to transfer interest and 
principal was automatically granted.  

(12)  Having re-examined further the additional information provided by the company and 
the arguments put forward following the provisional disclosure, it was considered that, 

3 

OJ L331, 01.12.2012, p. 56. 

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despite  the  existence  of  loan  registration  and  repayment  approval  requirements,  it 
could  be  established  in  this  particular  case  of  an  intra-group  loan  that  the  financial 
situation  of  the  company  was  not  subject  to  significant  distortions  given  that  the 
company was found to have repaid the interest and principal sum in line with the terms 
of the loan agreement. In these circumstances, the company is found to meet criterion 
3.  

In  the  absence  of  any  other  comments  concerning  MET,  recitals  (27)  to  (53)  of  the 
provisional Regulation are, subject to the above modification, hereby confirmed. 

Individual treatment (IT) 

In  the  absence  of  any  comments  on  IT,  recitals  (54)  to  (56)  of  the  provisional 
Regulation are hereby confirmed. 

(13) 

4.2. 

(14) 

4.3. 

Analogue country 

(15)  No  party  disputed  the  selection  of  Turkey  as  an  analogue  country  for  the  definitive 

determination. 

(16) 

4.4. 

(17) 

In  the  absence  of  any  comments  concerning  the  selection  of  the  analogue  country, 
recitals (57) to (64) of the provisional Regulation are hereby confirmed. 

Normal value 

It is recalled that the normal value was calculated on the basis of the data provided by 
the  sole  cooperating  producer  in  the  analogue  country  (i.e.  Turkey).  Thus,  normal 
value was established on the basis of prices of domestic sales and constructed normal 
value of one Turkish producer of the like product.  

(18)  The  company  Ningbo  Favored  Commodity  Co.,  Ltd  ('Ningbo  Favored')  questioned 
how  the  data  of  a  single  Turkish  producer  could  be  sufficiently  representative  to 
establish  a  dumping  margin  for  the  entirety  of  all  Chinese  exporting  producers,  and 
considered surprising that the domestic prices in Turkey were significantly higher than 
in  the  Union.  In  regard  to  the  Turkish  market  for  aluminium  foil,  as  mentioned  in 
recital (63) of the provisional Regulation, Turkey was considered a suitable analogue 
country  based  on  volumes  and  values  of  domestic  production,  import  and  export.  In 
regard to the fact that the prices on the Turkish market are higher than in the Union, 
this  is  not  a  decisive  factor  in  selecting  a  suitable  analogue  country  market.  In  any 
event, the price difference can be partly explained by the fact that the Union industry 
was  close  to  breakeven  during  the  IP.  If  the  Union  industry  is  put  in  a  position 
whereby it can achieve a reasonable profit (i.e. 5% as mentioned in recital (158) of the 
provisional Regulation), the price gap between Turkish prices and prices on the Union 
market will narrow. 

(19)  Ningbo  Favored  also  submitted  that  the  institutions  did  not  provide  sufficient 

information on the constructed normal value.  

(20) 

In  this  respect  it  is  noted  that,  as  explained  under  recital  (70),  the  Commission 
provided  to  the  party  all  relevant  information  concerning  the  data  used  to  calculate 
normal value that could be released without infringing the provisions of Article 19 of 
the basic Regulation, i.e. assuring at the same time that any confidential data provided 
by  the  sole  Turkish  producer  is  treated  as  such  and  is  not  disclosed  to  other  parties. 
The information provided to the exporting producer was meaningful and offered it the 
possibility to understand the methodology used in line with the provisions of Article 2 
of the basic Regulation. In addition, during a hearing which took place at the request 
of  Ningbo  Favored,  the  company  was  informed  that  for  the  purpose  of  the  dumping 

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calculation full product control numbers (PCNs) had been used and that in situations 
where the Turkish producer did not sell the exact same product type, the normal value 
was  established  by  adjusting  the  closest  PCN  sold  by  the  Turkish  producer.  Finally, 
Ningbo  Favored  and  the  other  sampled  Chinese  exporters  were  provided  with 
additional information regarding the establishment of the constructed normal value at 
the time the disclosure of the final findings was made. The above claims therefore had 
to be rejected. 

(21) 

In  the  absence  of  any  other  comments,  recitals  (65)  to  (72)  of  the  provisional 
Regulation are hereby confirmed. 

4.5. 

Export price 

(22)  Ningbo  Favored  requested  that  the  values  of  the  export  sales  in  the  transaction-by-
transaction  listing  should  be  converted  from  US  dollars  into  Chinese  currency  using 
the  monthly  exchange  rate  supplied  in  the  questionnaire,  rather  than  the  actual 
exchange  rate  at  the  time  of  the  various  transactions.  In  this  respect,  in  accordance 
with  Article  2(10)(j)  'currency  conversions'  of  the  basic  Regulation,  when  the  price 
comparison requires a conversion of currencies, such conversion shall be made using 
the  rate  of  exchange  on  the  date  of  sale.  It  is  also  noted  that,  the  instructions  to  the 
questionnaire  provide  explicitly  that  the  amounts  to  be  used  are  those  in  the 
accounting  currency  as  booked  in  the  accounting  records  of  the  respondent.  The 
company  had  thus  been  duly  informed  of  the  exchange  rate  to  be  used.  This  claim 
could therefore not be accepted. 

(23)  Following the imposition of the provisional measures, an additional verification visit 
was carried out at the premises of one of the unrelated importers for whom the profit 
mentioned  in  recital  (75)  of  the  provisional  Regulation  was  established.  As  a  result, 
the profit margin used in constructing the export prices under Article 2(9) of the basic 
Regulation decreased.  

(24) 

In  the  absence  of  any  other  comments,  recitals  (73)  to  (75)  of  the  provisional 
Regulation, subject to the above modification, are hereby confirmed. 

4.6. 

Comparison 

(25)  No pertinent comments were received with respect to the comparison. In the absence 
of any other comments, recitals (76) to (78) of the provisional Regulation are hereby 
confirmed. 

4.7. 

Dumping margins 

(26)  No  pertinent  comments  with  respect  to  the  dumping  margins  were  submitted.  In  the 
absence of any other comments, recitals (79) to (81) of the provisional Regulation are 
hereby confirmed.  

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(27)  As a result of the revision of the unrelated importers' profit as mentioned in recital (23) 
above,  as  well  as  following  the  correction  of  some  clerical  errors,  the  definitive 
dumping  margins,  expressed  as  a  percentage  of  the  CIF  Union  frontier  price,  duty 
unpaid, are as follows: 

Company Name 

Dumping margin 

CeDo (Shanghai) Ltd. 

Ningbo Favored 
Commodity Co., Ltd. 

Ningbo Times 
Aluminium Foil 
Technology Co., Ltd. 

Other co-operating 
companies  

Countrywide dumping 
margin  

37.4% 

30.6% 

32.9% 

34.9% 

45.6% 

(28)  On  the  basis  of  the  facts  stated  in  recital  (81)  of  the  provisional  Regulation,  the 
country-wide definitive dumping margin for the PRC was established using the most 
dumped  transactions  of  the  cooperating  exporters.  On  this  basis,  the  definitive 
dumping margin was found to be 45.6%. 

5. 

5.1. 

(29) 

5.2. 

(30) 

INJURY 

Union production and Union Industry 

In the absence of comments on Union production and Union industry, recital (83) of 
the provisional Regulation is hereby confirmed.  

Union consumption 

In  the  absence  of  comments  on  Union  consumption,  recitals  (84)  to  (86)  of  the 
provisional Regulation are hereby confirmed.  

5.3. 

Imports into the Union from the PRC 

5.3.1.  Volume and market share 

(31) 

In the absence of comments on the level of imports into the Union from the PRC and 
market share, recitals (87) to (89) of the provisional Regulation are hereby confirmed. 

5.3.2.  Prices of dumped imports and price undercutting 

(32)  As  duly  explained  in  recital  (47)  below,  after  analysis  of  the  comments  received 
following provisional disclosure, it was found appropriate not to apply a level of trade 
adjustment  for  the  comparison  between  prices  of  the  product  concerned  and 
aluminium foil produced by Union industry. This change of method slightly affected 
the undercutting margins.  

(33)  Furthermore, the undercutting margin of the CeDo group was reduced by the revision 
of  the  unrelated  importers'  profit  margin  (see  recital  (23)).  However,  the  weighted 
average undercutting margin of the sampled exporting producers remains above 7%.  

(34)  With  the  exception  of  the  above  changes  and  in  the  absence  of  any  other  comment 
concerning  prices  of  dumped  imports  and  price  undercutting,  the  methodology 

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described  in  recital  (90)  to  (94)  of  the  provisional  Regulation  to  establish  price 
undercutting is hereby confirmed. 

5.4. 

Economic situation of the Union industry and the representative Union producers 

5.4.1.  Preliminary remarks and data relating to the Union industry  

(35) 

In  the  absence  of  any  comments  in  this  regard,  the  provisional  findings  set  out  in 
recitals (95) to (107) of the provisional Regulation are hereby confirmed.  

5.4.2.  Magnitude of the actual dumping margin 

(36) 

In the absence of comments in this regard, recital (108) of the provisional Regulation 
is hereby confirmed. 

5.5. 

Conclusion on injury 

(37)  Based  on  the  above,  the  provisional  findings  set  out  in  recitals  (109)  to  (112)  of  the 

provisional Regulation are hereby confirmed.  

6. 

CAUSALITY 

(38)  The  Commission  received  no  comments  on  the  provisional  findings  concerning  the 
causal link between dumping and injury. It is consequently confirmed that the dumped 
imports from the PRC caused material injury to the Union industry within the meaning 
of Article 3(6) of the basic Regulation and that there are no other known factors which 
are as such as to break the causal link between the dumped imports from the PRC and 
the  injury  suffered  by  the  Union  industry.  Therefore,  the  conclusions  as  set  out  in 
recitals (113) to (136) of the provisional Regulation are hereby confirmed. 

7. 

7.1. 

(39) 

UNION INTEREST 

Union industry 

In  the  absence  of  any  comments  with  regard  to  the  interest  of  the  Union  industry, 
recitals (138) to (142) of the provisional Regulation are hereby confirmed.  

7.2. 

Importers/wholesalers 

(40)  Co-operation  from  the  importing  sector  was  very  low  and,  as  already  mentioned  in 
recital  (146)  of  the  provisional  Regulation,  only  two  importers  had  submitted  a 
questionnaire  reply.  As  mentioned  at  recital  (23)  after  the  imposition  of  provisional 
measures,  the  largest  importer  (Robinson  Young,  UK)  was  visited  to  verify  its 
questionnaire  response.  The  verification  resulted  in  a  correction  of  the  reported 
profitability of this company on its relevant activities. As a consequence, the weighted 
average profit margin of the two cooperating sampled importers went down. However, 
the  reduction  in  profit  of  the  co-operating  importers  was  not  considered  to  be 
significant in terms of the Union interest analysis because both profit rates (before and 
after the correction) were moderate. 

(41)  One  of  the  sampled  importers  contested  the  preliminary  conclusion  summarized  in 
recital  (148)  of  the  provisional  Regulation  that  the  impact  of  the  measures  on  the 
importing sector as a whole would not be disproportionate as it could be forced to exit 
the  market  if  the  measures  would  be  confirmed.  However,  in  the  provisional 
Regulation  it  was  indeed  concluded  that  the  Union  industry  might  win  back  some 
contracts  to  the  detriment  of  the  importing  sector.  However,  there  is  no  doubt  that 
imports of the product concerned will continue to serve the Union market, albeit now 
on the basis of fair competition and, therefore, possibly on a smaller scale. In view of 

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that,  it  is  confirmed  that  the  overall  impact  on  the  importing  sector  is  not 
disproportionate. 

(42)  No further comments or information were received regarding the interests of importers 
or  wholesalers.  Therefore  the  provisional  findings  in  recitals  (143)  to  (149)  of  the 
provisional Regulation on the interest of these groups are hereby confirmed.  

7.3. 

(43) 

7.4. 

(44) 

Retailers and Consumers 

In the absence of comments concerning the interest of retailers and consumers, recitals 
(150) to (153) of the provisional Regulation are hereby confirmed. 

Conclusion on Union interest 

In  view  of  the  above,  the  provisional  findings  concerning  Union  interest  are 
confirmed,  i.e.  there  are  no  compelling  reasons  against  the  imposition  of  definitive 
measures on imports of certain aluminium foils in rolls originating in the PRC. 

8. 

DEFINITIVE ANTI-DUMPING MEASURES 

8.1. 

Injury elimination level 

(45)  After  disclosure  of  the  provisional  findings,  Ningbo  Favored  made  a  submission 
concerning the methodology employed to calculate the injury margins. The company 
claimed that the adjustments made to the PCN structure had created an imbalance. In 
particular, it claimed that packaging costs were probably responsible for distorting the 
data.  A  second  issue  concerned  the  method  employed  to  ensure  fair  comparison  in 
terms of level of trade. At the provisional stage the Union data was split between retail 
and wholesale sales channels, however, Ningbo Favored argued that this created two 
target prices per product type which it said would be unlawful. 

(46)  With reference to the claim on the adjustment made to the PCN structure, simulations 
have shown that distortions would take place in case no adjustment was made. Those 
changes to the PCN structure (which were in effect a consolidation of data to improve 
matching  rates  and  representativity)  had  removed  distortions  and  improved  the 
reliability of the calculations. Therefore, this claim has to be rejected. 

(47)  The  second  issue  raised  by  the  Ningbo  Favored,  regarding  the  method  provisionally 
employed to ensure fair comparison in terms of level of trade, was also duly analysed. 
In this respect it was found that although prices usually differed between the two sales 
channels, no identifiable or consistent pattern was present in the current case. Indeed, 
in certain instances, the producer sale prices to retailers would be lower than those to 
wholesalers  whereas  in  other  cases,  the  opposite  would  be  the  case.  It  was  therefore 
decided to accept this claim that no level of trade adjustment should be made because 
the  conditions  for  such  adjustment  were  not  met.  Consequently,  the  definitive 
calculations  of  the  injury  elimination  levels  have  been  done  on  the  basis  of 
consolidated prices of both the exporting producers and the Union industry, making no 
adjustment for level of trade. This change in methodology slightly affected the injury 
margins. 

(48) 

In response to the definitive disclosure Ningbo Favored argued that the method used to 
calculate underselling was flawed and unreliable because, on the Union industry side, 
its starting point was the Union sales price per PCN rather than the cost of production 
per PCN. Ningbo Favored concluded that the COP per PCN was not used because the 
Commission officials "did not urge" the company to provide the relevant data and the 
proceeding should therefore be terminated because of a "lack of evidence". 

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(49)  However,  the  basic  Regulation  does  not  prescribe  how  Union  industry's  target  price 
should be established.  It  is  common practice to do this either on the basis of cost of 
production per PCN plus target profit, or by using the ex-works sales prices per PCN 
to  unrelated  customers  on  the  Union  market  and  adjusting  those  by  the  actual 
profit/loss made during the IP and by adding the established target profit. It is noted 
that  both  methods  are  reliable  and  they  may  be  used  interchangeably  (depending  on 
the circumstances). In the investigation, the second method (i.e. on the basis of actual 
Union sales prices to unrelated customers) was employed because not all the sampled 
Union producers were able to calculate a reliable COP per PCN.  

(50) 

In view of the above, the allegation that the method adopted is unreliable and the claim 
that the proceeding should therefore be terminated are rejected.  

(51)  The  CeDo  Group  claimed  that  the  methodology  used  for  calculating  its  provisional 
injury margins was not correct because it did not fully take into account the structure 
of the Cedo Group. Indeed the importer CeDo UK, related to a sampled co-operating 
exporting  producer  ("CeDo  (Shanghai)"),  supplies  the  Union  market  with  foil 
produced in both the PRC and the Union, all channelled via a related importer/trader. 
The company claimed that SGA of this related importer and a profit margin should not 
have been deducted from CeDo resales price as competition takes place at the level of 
customers in the EU. CeDo sales prices at customers' level, it claimed, would not be 
injurious to the Union industry. 

(52)  CeDo's  assertion  regarding  its  sales  prices  vis-à-vis  those  of  the  Union  industry  was 
challenged by several submissions from complaining Union producers. However, this 
issue  could  not  be  further  investigated  because  the  information  submitted  by  the 
parties could not be verified at such a late stage of the investigation.  

(53)  On substance, it should be noted that the purpose of calculating an injury margin is to 
determine whether applying to the CIF price of the dumped imports a lower duty rate 
than  the  one  based  on  the  dumping  margin  would  be  sufficient  to  remove  the  injury 
caused by the dumped imports. This assessment should be based on the CIF price of 
the  imports  in  question,  which  is  considered  to  be  a  level  comparable  to  the  Union 
industry ex-works price. In the case of imports made via related importers, by analogy 
with  the  approach  followed  for  the  dumping  margin  calculations,  which  the  injury 
margin  calculations  could  subsitute  for  the  determination  of  the  duty  rate  in 
application  of  the  lesser-duty  rule,  the  CIF  price  is  constructed  on  the  basis  of  the 
resales price to the first independent customer duly adjusted pursuant to Article 2(9) of 
the basic Regulation. Second and without prejudice to the latter observations, it should 
be noted that the methodology advocated by CeDo would lead to the inevitable use of 
prices relating to the Union production by CeDo of aluminium foil since, as mentioned 
above,  the  related  importer/trader  supplied  the  Union  market  with  aluminium  foil 
produced both in China and the Union.  

(54)  CeDo returned to the above issue at the definitive stage. It also requested to be heard 
by  the  Hearing  Officer  of  the  Directorate-General  for  Trade  and  a  hearing  was 
organised  to  discuss  the  matter.  CeDo  reiterated  its  previous  arguments  and  also 
challenged  the  above  explanation  concerning  Article  2(9),  stating  that  Article  2(9) 
appears under the dumping provisions of the basic Regulation and could not be used 
by analogy for calculating injury. The institutions pointed out that although Article 2 
deals  with  dumping  issues,  Article  2(9)  thereunder  falls  under  the  "export  price" 
subchapter and it gives guidance for calculating an export price in case of Union sales 

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via a related importer. No other provision in the basic Regulation gives more specific 
guidance in this regard. 

(55)  CeDo  raised  the  issue  of  the  Kazchrome4  judgment  of  the  General  Court  which  it 
alleged  provided  guidance  in  this  respect  by  stating  that  the  most  accurate  way  of 
calculating  price  undercutting  would  be  to  compare  import  prices  with  the  prices  of 
goods  of  the  Community  industry  by  including  all  the  costs  incurred  up  until  the 
customers'  premises.  However,  it  should  be  noted  that  the  Court  also  acknowledged 
that this approach is not practical and the judgment makes clear that CIF prices are an 
acceptable  methodology  in  calculating  injury  margins.  In  addition,  the  Kazchrome 
case related to a special situation involving goods which entered the EU market first 
through Lithuania (in transit) and then to Rotterdam where they were customs cleared. 
In  that  case,  the  Commission  had  decided  to  calculate  undercutting  and  underselling 
on the basis of the price at the point of transit, as opposed to the price after customs 
clearance. This is not the case in the current investigation where it is not disputed that 
the underselling and the undercutting calculations are based on CeDo's CIF price after 
customs  clearance.  Furthermore,  in  the  Kazchrome  judgment  the  Court  clearly 
restricted its conclusions to that specific case. 

(56)  CeDo also raised the  issue  of fair  comparison  and  quoted  two  WTO  Panel  Reports5. 
The  institutions  are  satisfied  that  CeDo's  prices  as  established  by  the  Commission 
services  and  the  ex-works  Union  industry  prices  (both  for  undercutting  and 
underselling)  provide  the  basis  of  a  fair  and  reasonable  comparison.  It  should  be 
remembered  that  a  perfect  comparison  would  mean  that  only  bids  for  the  same 
contract should be taken into account because only then would the conditions of sale 
be identical. As a perfect comparison is not possible here the institutions are satisfied 
that its methodology (which uses average prices collected for similar products over the 
period of a one year IP) is fair. This methodology has been clearly communicated by 
disclosure. 

(57)  Furthermore,  it  is  considered  that  the  method  advocated  by  CeDo  would  lead  to 
unequal  treatment  in  the  calculation  of  its  margins  and  those  of  other  sampled 
exporting producers selling to independent importers. The methodology employed for 
the  other  sampled  exporting  producers  was  based  on  an  export  price  at  CIF  level 
which of course excludes Union SGA and profit for resale in the Union after customs 
clearance.  The  Commission  considers  that  the  establishment  of  the  relevant  import 
price  for  undercutting  and  underselling  calculations  should  not  be  influenced  by 
whether  the  exports  are  made  to  related  or  independent  operators  in  the  Union.  The 
methodology  followed  by  the  Commission  ensures  that  both  circumstances  receive 
equal  treatment.  Lastly,  as  already  mentioned  in  recital  (53)  above,  the  approach 
requested by CeDo would, in particular in the circumstances of this company, confuse 
and blur the two distinct qualities in which Cedo operates as a supplier of aluminium 
foil to the Union market. Indeed, Cedo supplies the Union market, first, as a producer 
located in the Union and, second, as a reseller of alumium foil imported from China. 
The  purpose  of  the  injury  margin  calculations  is  not  to  measure  to  what  extent  the 
sales  of  CeDo  UK,  as  a  Union  importing  producer,  are  causing  injury  to  the  Union 
producers  but  rather  whether  the  exports  from  CeDo  Shanghai  have  such  effect 

4 

5 

T-107/08  Transnational  Company  ‘Kazchrome’  AO  and  ENRC  Marketing  AG  v.  Council  of  the 
European Union and European Commission 
WTO Panel Report, China – CVD and AD Duties on Grain Oriented Flat-Rolled Electrical Steel from 
USA – WT/DS414/R and AD Measure on Farmed Atlantic Salmon from Norway – WT/DS337/R 

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through undercutting and underselling the prices of Union producers. To that end, the 
relevant price to be taken into account is the price at which the product concerned is 
sold to the Union, and not the price at which the imported materials are then resold by 
importing  producers  in  the  Union.  This  is  consistent  with  the  approach  taken  when 
calculating  the  injury  margin  attributable  to  imports  made  by  domestic  producers  in 
the Union. 

(58)  Finally, it should be stated that the Union producers' prices have been adjusted to an 
ex-works  level  by  deducting  mot  only  credit  notes,  discounts  and  rebates  but  also 
commissions (a form of selling cost) and transport related expenses. Hence comparing 
the  importer's  resale  price  with  a  Union  ex-works  price  would  not  be  a  fair 
comparison. 

(59)  For  the  reasons  stated  above,  it  was  mantained  that  the  claim  to  revise  the 

methodology to calculate CeDo's injury margin could not be accepted. 

(60)  However,  the  revised  unrelated  importers  profit  margin  (modified  for  the  reasons 
explained in recital (23) above) had an impact on the injury margin of CeDo, as this is 
deducted from its resales price. Finally, all underselling margins were affected by the 
correction  of  a  minor  clerical  error  in  the  application  of  the  target  profit  at  the 
provisional stage.  

(61)  On the basis of the above, the definitive injury margins are as follows:  

Company Name 

Underselling 

CeDo (Shanghai) Ltd. 

14.2% 

Ningbo Favored 
Commodity Co. Ltd. 

Ningbo Times 
Aluminium Foil 
Technology Co., Ltd 

Weighted average for 
other co-operators 

Residual 

Definitive measures 

14.6% 

15.6% 

14.6% 

35.6% 

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 on imports of certain aluminium foils 
in  rolls  originating  in  the  PRC  at  the  level  of  the  lower  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 margins found.  

8.2. 

(62) 

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(63)  On  the  basis  of  the  above,  the  rate  at  which  such  duties  will  be  imposed  are  set  as 

follows:  

Company Name 

CeDo (Shanghai) Ltd. 

Ningbo Favored 
Commodity Co. Ltd. 

Ningbo Times 
Aluminium Foil 
Technology Co. Ltd. 

Other co-operating 
companies  

Countrywide dumping 
margin  

Dumping 
margin 

37.4% 

30.6% 

Injury 
elimination 
margin 

14.2% 

14.6% 

Anti-dumping 
Duty Rate 

14.2% 

14.6% 

32.9% 

15.6% 

15.6% 

34.9% 

14.6% 

45.6% 

35.6% 

14.6% 

35.6% 

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

(65) 

the  anti-dumping  duties.  These  special  measures 

In order to minimise the risks of circumvention due to the high difference in the duty 
rates, it is considered that special measures are needed in this case to ensure the proper 
application  of 
the 
presentation  to  the  Customs  authorities  of  the  Member  States  of  a  valid  commercial 
invoice,  which  shall  conform  to  the  requirements  set  out  in  the  Annex  to  this 
Regulation. Imports not accompanied by such an invoice shall be made subject to the 
residual anti-dumping duty applicable to all other exporters.  

include 

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

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

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production or sales entities) should be addressed to the Commission6 forthwith with all 
relevant information, in particular any modification in the company’s activities linked 
to  production,  domestic  and  export  sales  associated  with,  for  instance,  that  name 
change  or  that  change  in  the  production  and  sales  entities.  If  appropriate,  this 
Regulation  will  then  be  amended  accordingly  by  updating  the  list  of  companies 
benefiting from individual anti-dumping duty rates. 

(68) 

(69) 

In  order  to  ensure  a  proper  enforcement  of  the  anti-dumping  duty,  the  country-wide 
duty level should not only apply to the non-cooperating exporting producers but also 
to those producers which did not have any exports to the Union during the IP. 

In  order  to  ensure  equal  treatment  between  any  new  exporters  and  the  cooperating 
companies not included in the sample, listed in the table at Article 1(2) below at the 
sample average duty rate of 14,6%, provision should be made for the weighted average 
duty imposed on the latter companies to be applied to any new exporters which would 
otherwise be entitled to a review pursuant to Article 11(4) of the basic Regulation as 
that Article does not apply where sampling has been used. 

(70)  All  parties  were  informed  of  the  essential  facts  and  considerations  on  the  basis  of 
which it was intended to recommend the imposition of a definitive anti-dumping duty 
on imports of certain aluminium foils in rolls originating in the PRC and the definitive 
collection of the amounts secured by way of the provisional duty (final disclosure). All 
parties  were  granted  a  period  within  which  they  could  make  comments  on  this  final 
disclosure.  

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

and taken into account where appropriate. 

9. 

(72) 

DEFINITIVE COLLECTION OF THE PROVISIONAL DUTY 

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

(73)  Where  the  definitive  duties  are  higher  than  the  provisional  duties,  only  the  amounts 
secured at the level of the provisional duties should be definitively collected, while the 
amounts  secured  in  excess  of  the  definitive  rate  of  anti-dumping  duties  should  be 
released.  

HAS ADOPTED THIS REGULATION: 

Article 1 

1.  A  definitive  anti-dumping  duty  is  hereby  imposed  on  imports  of  aluminium  foil  of  a 
thickness of 0,007 mm or more but less than 0,021 mm, not backed, not further worked than 
rolled  but  whether  or  not  embossed,  in  low  weight  rolls  of  a  weight  not  exceeding  10  kg, 
currently falling within CN codes ex 7607 11 11 and ex 7607 19 10 (TARIC codes 7607 11 
11 10 and 7607 19 10 10) and originating in the People’s Republic of China. 

6 

European Commission, Directorate-General for Trade, Directorate H, Office: NERV-105, 08/020, 1049 
Brussels, BELGIUM. 

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

Company 

CeDo (Shanghai) Ltd., Shanghai 

Ningbo Favored Commodity Co. Ltd., Yuyao City 

Ningbo Times Aluminium Foil Technology Co. Ltd., 
Ningbo 

Able Packaging Co.,Ltd., Shanghai 

Guangzhou Chuanlong Aluminium Foil Product Co.,Ltd., 
Guangzhou 

Duty  

14,2% 

14,6% 

15,6% 

14,6% 

14,6% 

TARIC 
additional code 

B299 

B301 

B300 

B302 

B303 

Ningbo Ashburn Aluminium Foil Products Co.,Ltd., Yuyao 
City 

14,6% 

B304 

Shanghai Blue Diamond Aluminium Foil Manufacturing 
Co.,Ltd., Shanghai  

14,6% 

B305 

Weifang Quanxin Aluminum Foil Co.,Ltd., Linqu 

Zhengzhou Zhuoshi Tech Co. Ltd., Zhengzhou City 

Zhuozhou Haoyuan Foil Industry Co.,Ltd., Zhouzhou City 

Zibo Hengzhou Aluminium Plastic Packing Material 
Co.,Ltd., Zibo 

Yuyao Caelurn Aluminium Foil Products Co.,Ltd., Yuyao 

All other companies 

14,6% 

14,6% 

14,6% 

14,6% 

14,6% 

35,6% 

B306 

B307 

B308 

B309 

B310 

B999 

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

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

Article 2 

Amounts secured by way of provisional anti-dumping duty pursuant to Regulation (EU) No 
833/2012 shall be definitively collected. The amounts secured in excess of the amount of the 
definitive anti-dumping duties shall be released. 

Article 3 
Where  any  new  exporting  producer  in  the  People’s  Republic  of  China  provides  sufficient 
evidence to the Commission that:  
— it did not export to the Union the product described in Article 1(1) during the investigation 
period (1 October 2010 to 30 September 2011),  

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—  it  is  not  related  to  any  of  the  exporters  or  producers  in  the  People’s  Republic  of  China 
which are subject to the measures imposed by this Regulation,  
— it has actually exported to the Union the product concerned after the investigation period 
on which the measures are based, or it has entered into an irrevocable contractual obligation 
to export a significant quantity to the Union,  

the  Council,  acting  by  simple  majority  on  a  proposal  submitted  by  the  Commission  after 
consulting  the  Advisory  Committee,  may  amend  Article  1(2)  by  adding  the  new  exporting 
producer  to  the  cooperating  companies  not  included  in  the  sample  and  thus  subject  to  the 
weighted average duty rate of 14,6%. 

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

Article 4 

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

Done at Brussels,  

For the Council 
The President 

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ANNEX  

A  declaration  signed  by  an  official  of  the  entity  issuing  the  commercial  invoice,  in  the 
following format, must appear on the valid commercial invoice referred to in Article 1(3): 

(1) the name and function of the official of the entity issuing the commercial invoice; 

(2) the following declaration: 

"I, the undersigned, certify that the (volume) of certain aluminium foils in rolls, sold 
for  export  to  the  European  Union  covered  by  this  invoice,  was  manufactured  by 
(company  name  and  registered  seat)  (TARIC  additional  code)  in  the  People’s 
Republic of China. I declare that the information provided in this invoice is complete 
and correct. 

Date and signature". 

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