Proposal for a COUNCIL IMPLEMENTING REGULATION terminating the partial reopening of anti-dumping investigation concerning imports of ethanolamines originating in the United States of America and terminating the expiry review pursuant to Article 11(2) and the partial interim review pursuant to Article 11(3) of Regulation (EC) 1225/2009
Date: 2013-03-05
Institutions: European Commission
Subjects: United States, anti-dumping measure, import (EU), organic chemical, originating product

EUROPEAN 
COMMISSION 

Brussels, 5.3.2013  
COM(2013) 117 final 

2013/0070 (NLE) 

Proposal for a 

COUNCIL IMPLEMENTING REGULATION 

terminating the partial reopening of anti-dumping investigation concerning imports of 
ethanolamines originating in the United States of America and terminating the expiry 
review pursuant to Article 11(2) and the partial interim review pursuant to Article 11(3) 
of Regulation (EC) 1225/2009  

EN 

   EN 

 
 
 
  
 
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 ethanolamines originating in the United States of America ('USA'). 

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 

Definitive  measures  were  imposed  by  Council  Regulation  (EU)  No  54/2010  (OJ  L  17, 
22.10.2010, p. 1). 

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  19  January  2010  and  following  a  third  expiry  review  investigation,  the  anti-dumping 
duties on imports of ethanolamines originating in the USA were prolonged for two more years 
by  Council  Regulation  (EU)  54/2010.  The  Commission  initiated  an  expiry  review  on  21 
January  2012.  A  partial  interim  review  limited  to  dumping  as  regards  The  Dow  Chemical 
Company was initiated on 11 April 2012. By its judgment of 8 May 2012 the General Court 
annulled the Council Regulation insofar as it concerns the The Dow Chemical Company. On 
18 October 2012, the Commission published a notice concerning the partial reopening of the 
anti-dumping  investigation  concerning  imports  of  ethanolamines  originating  in  the  United 
States of America limited in scope to the implementation of the General Court judgment. 

EN 

2 

   EN 

The  attached  proposal  for  a  Council  Regulation  is  based  on  the  findings  which  brought  the 
Commission  to  conclude  that,  on  the  basis  of  the  verified  information  of  the  third  expiry 
review investigation, the institutions could not have come to the conclusion that dumping had 
continued  during  the  RIP,  nor  that  there  was  a  likelihood  of  continuation  of  dumping. 
Moreover,  the  institutions  should  also  have  concluded  that  there  was  was  no  likelihood  of 
recurrence of dumping. 

It is therefore proposed that the Council adopt the attached proposal for a Regulation which 
terminates the existing anti-dumping measures on ethanolamines originating in the USA. This 
regulation should be published no later than 10 April 2013, i.e. 12 months after the initiation 
of the interim review. 

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. 

The 

BUDGETARY IMPLICATION 

proposal 

has 

no 

implication 

for 

the 

Union 

budget.

EN 

3 

   EN 

2013/0070 (NLE) 

Proposal for a 

COUNCIL IMPLEMENTING REGULATION 

terminating the partial reopening of anti-dumping investigation concerning imports of 
ethanolamines originating in the United States of America and terminating the expiry 
review pursuant to Article 11(2) and the partial interim review pursuant to Article 11(3) 
of Regulation (EC) 1225/2009  

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 Articles 9 (2), 11(2) and 11(3) thereof, 

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

Whereas: 

1. 

1.1. 

(1) 

(2) 

(3) 

(4) 

1 
2 
3 
4 
5 

PROCEDURE 

Existing measures 
On  2  February  1994,  the  Council  imposed,  by  Regulation  (EC)  No  229/942  ("the 
original  Regulation"),  definitive  anti-dumping  duties  on  imports  of  ethanolamines 
(product concerned) originating in the United States of America (‘USA’). On 20 July 
2000 and following an expiry review investigation, these measures were extended for 
five  years  by  Council  Regulation  (EC)  1603/20003  ("the  first  expiry  review 
Regulation"). 

On 23 October 2006, following the second expiry review investigation, the measures 
were extended for five more years by Council Regulation (EC) No 1583/20064 ("the 
second expiry review Regulation").  

On  19  January  2010  and  following  a  third  expiry  review  investigation,  the  anti-
dumping duties on imports of ethanolamines originating in the USA were imposed for 
two  more  years  by  Council  Regulation  (EC)  No  54/20105  ("the  third  expiry  review 
Regulation").  

On 9 April 2010, The Dow Chemical Company ("Dow Chemical") filed an application 
for  partial  annulment  of  Council  Implementing  Regulation  (EU)  No  54/2010  of  19 
January 2010. 

OJ L 343, 22.12.2009, p. 51. 
OJ L 28, 2.2.1994, p. 40. 
OJ L 185, 25.7.2000, p.1. 
OJ L 294, 25.10.2006, p. 2. 
OJ L 17, 22.1.2010, p. 1. 

EN 

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(5) 

(6) 

(7) 

(8) 

1.2. 

(9) 

(10) 

On  12  March  2011,  the  Commission  published  a  Notice  of  impending  expiry  in  the 
Official Journal6.  

Following  a  request  lodged  by  BASF  AG,  Ineos  Europe  AG,  and  Sasol  Germany 
GmbH  ("the  Union  industry"),  the  Commission  initiated  an  expiry  review  on  21 
January 2012 ("fourth expiry review")7.  

A partial interim review limited to dumping as regards Dow Chemical was initiated on 
11 April 20128. 
By its judgment of 8 May 2012 in case T-158/109 (‘the judgment’) the General Court 
annulled  the  third  expiry  review  Regulation  insofar  as  it  concerns  Dow  Chemical 
following an application lodged10 on 9 April 2010.  

Partial reopening 
Following  the  General  Court  judgment  of  8  May  2012,  a  notice11  was  published 
concerning  the  partial  reopening  of  the  third  expiry  review  investigation  concerning 
imports of ethanolamines originating in the USA. The reopening was limited in scope 
to the implementation of the General Court judgment as far as the determination of a 
likelihood  of  a  continuation  or  recurrence  of  dumping  during  the  RIP,  including  the 
spare production capacity of ethanolamines in the USA, is concerned. 

In  that  notice,  parties  were  informed  that,  in  view  of  the  judgment  of  the  General 
Court,  imports  into  the  European  Union  of  ethanolamines  manufactured  by  Dow 
Chemical are no longer subject to the anti-dumping duties imposed by the third expiry 
review  Regulation  and  that  definitive  anti-dumping  duties  paid  pursuant  to  this 
Regulation  on  imports  of  ethanolamines  should  be  repaid  or  remitted  in  accordance 
with the applicable customs regulation. 

(11)  The  Commission  officially  advised  the  exporting  producers,  the  importers  and  users 
known  to  be  concerned  and  the  Union  industry  of  the  partial  reopening  of  the 
investigation. Interested parties were given the opportunity to make their views known 
in writing and to request a hearing within the time limit set out in the notice. 

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

(13)  Representations  were  received  from  two  exporting  producers,  three  Union  producers 

and a user of the product concerned. 

2. 

2.1. 

(14) 

IMPLEMENTATION OF THE GENERAL COURT JUDGMENT 

1. Preliminary remark 

It  is  recalled  that  the  reason  for  the  annulment  of  the  contested  Regulation  was  the 
General Court finding that the third expiry review Regulation contained two errors of 
assessment: (i) a finding of continued dumping during the review investigation period 
("RIP")  and,  therefore,  on  that  basis,  a  finding  of  a  likelihood  of  continuation  of 

6 
7 
8 
9 
10 
11 

OJ C 79, 12.03.2011, p. 20. 
OJ C 18, 21.01.2012, p. 16. 
OJ C 103, 11.04.2012, p. 8. 
Case T-158/10 The Dow Chemical Company v Council [2012] ECR II.  
OJ C 161, 9.4.2010, p. 44. 
OJ C 314, 18.10.2012, p. 12. 

EN 

5 

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dumping;  and  (ii) 
the  determination 
ethanolamines in the United States amounted to 60 000 tonnes. 

that 

the  spare  production  capacity  of 

2.2. 

Comments of interested parties 

(15)  The  Union  industry  acknowledged  that  the  General  Court  judgment  questioned  the 
methodologies employed by the Institutions to quantify the spare capacity production 
in the USA. However, the Union industry sustained that basing the actual production 
capacity  on  90%  of  the  nameplate  capacity,  as  the  institutions  had  done,  is  overly 
conservative  as  it  is  common  and  accepted  for  companies  to  exceed  the  nameplate 
capacity.  Basing  themselves  on  published  market  data  allegedly  sourced  from  PCI 
Xylenes & Polyesters ("PCI"), they concluded that there was indeed a spare capacity 
in 2008 and onwards.  

(16)  Moreover,  the  Union  industry  considered  that  market  conditions  had  not  changed 
materially  since  the  publication  of  the  third  expiry  review  Regulation  and  found 
several  reasons  to  conclude  that  there  is  a  likelihood  of  a  recurrence  of  dumping.  In 
this  respect,  they  invoked  the  continuation  of  the  US  production  capacity  over 
domestic  demand  since  the  RIP;  the  material  capacity  expansions  in  third  countries 
after 2009 which would have made US export markets increasingly self-sufficient; the 
existence  of  anti-dumping  measures  imposed  or  likely  to  be  imposed  soon  in  third 
countries; the increase of MEG (monoethylene glycol) capacity production from 2009 
onwards; and the proposal in the USA to include some of the ethanolamines in the list 
of  products  with  potential  harmful  effects  to  health  which  could  ultimately  have  an 
impact in domestic consumption.  

(17)  Dow  Chemical  expressed  its  doubts  about  the  legality  of  the  re-opening  of  the 
investigation  arguing  that  there  is  no  specific  provision  in  the  basic  Regulation 
allowing for that. This exporting producer also alleged that the re-opening would be in 
conflict  with  the  15-month  statutory  deadline  set  out  in  article  11(5)  of  the  basic 
Regulation for the completion of review investigations. 

(18)  Dow Chemical further claimed that the General Court judgment would not require any 
implementing measure and that the Commission could not legally remedy the aspects 
of  the  contested  Regulation  since  each  of  the  substantive  grounds  that  led  to  the 
adoption  of  the  Regulation  was  either  annulled  by  the  General  Court  or  contested. 
Dow Chemical therefore considered that the only legal way to remedy these aspects of 
the third expiry review Regulation would be to repeal the existing measures.  

(19)  An  EU  user,  Stepan  Europe  ("Stepan"),  submitted  that  the  legal  consequence  of  the 
judgment  could  only  be  that  the  measures  imposed  by  the  third  expiry  review 
Regulation  should  be  withdrawn  as  they  had  been  imposed  on  the  basis  of  an 
erroneous analysis. Similar views were expressed by the exporting producer Huntsman 
Petrochemical Corporation LLC ("Huntsman"). Indeed, Stepan and Huntsman argued 
that  the  Court  held  that,  during  the  RIP,  the  country-wide  dumping  margin  was 
negative  and  therefore  no  continuation  of  dumping  could  be  established.  Stepan 
considered that the institutions should hence have examined if there was a likehood of 
recurrence of dumping; yet the third expiry review Regulation had been silent on this.  

(20)  Moreover,  Stepan  stressed  that,  would  the  notion  of  continuation  of  dumping  be 
interpreted on an individual company basis, the institutions should have concluded that 
there was no continuation of dumping for Dow Chemical as, according to the Court, 
the company represented more than 85% of all imports from the USA, and therefore 
they should have considered whether dumping by Dow Chemical was likely to recur. 

EN 

6 

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For the other exporting companies, it was established that there had been dumping and 
therefore  the  institutions  should  have  established  whether  dumping  was  likely  to 
continue.  The  likelihood  of  continuation  of  dumping  analysis  was  mainly  based, 
according to Stepan, on a country–wide spare capacity in the USA of 60 000 tonnes. 
Given the Court's finding that the institutions erred in assessing the spare capacity in 
the USA and given that, according to Stepan, the spare capacity was closer to at the 
most  8  000  tonnes,  it  was  no  longer  possible  to  sustain  that  the  other  exporting 
companies  were  likely  to  continue  dumping.  The  institutions  would  have  needed  to 
also analyze and establish the likelihood of recurrence of dumping.  

(21)  Hunstman also based its analysis on the assumption that the General Court's judgment 
confirmed that there was no spare capacity in the USA during the RIP and that it was 
therefore unlikely that an increased amount of ethanolamines would be exported into 
the EU on that basis. They claimed that it was therefore also not necessary to analyse 
other  factors  such  as  the  impact  of  trade  defence  masures  in  third  countries,  the 
possible  development  of  demand  in  the  USA  and  in  other  markets  or  the  downward 
pressure of prices. Moreover, Huntsman argued that, in the light of the Court's finding 
of the lack of spare capacity in the USA during the RIP, it was no longer possible for 
the  Commission  to  re-analize  the  likelihood  of  recurrence  of  dumping  and  of  injury 
and to conclude in the framework of this partial re-opening that there was a likelihood 
of  recurrence  of  injurious  dumping.  Yet,  were  the  Commission  able  to  revisit  the 
likelihood  of  recurrence  of  dumping  and  of  injury,  Huntsman  considered  that  there 
would  be  no  evidence  to  demonstrate  that  the  requirements  of  Article  11(2)  of  the 
basic  Regulation  would be met.  As regards the likelihood of recurrence of dumping, 
Huntsman  opined  that,  on  the  basis  of  the  finding  that  during  the  RIP  there  was  no 
dumping  for  Dow  Chemical,  the  biggest  exporter  by  far,  there  was  no  likelihood  of 
recurrence  of  dumping  on  a  country-wide  basis  after  the  RIP  if  the  anti-dumping 
duties would be withdrawn.  

(22)  According  to  Huntsman,  the  recurrence  of  injury  would  be  unlikely  in  view  of  the 
absence  of  unused  production  capacity  which  results  in  very  little  leeway  for 
increasing exports to the EU after the RIP. Huntsman maintained that such conclusion 
is corroborated by the fact that, according to the SRI report12, the expected growth of 
consumption in the USA does not differ significantly from that of the other markets. 

(23)  Huntsman raised that if the Union industry would have suffered from any injury, this 
were to be attributted to the effects of the economic crisis and not to imports from the 
USA.  The  mere  exacerbation  of  the  negative  impact  of  the  crisis  through  imports 
could  not  permit  a  finding  of  a  likely  recurrence  of  injury  caused  by  the  mentioned 
imports.  

2.3. 

(24) 

Analysis of comments 

In  respect  of  the  alleged  illegality  of  the  reopening  (recitals  (17)-(18)),  it  is  recalled 
that in case C-458/98 P ("the IPS judgment"), the Court of Justice recognised that in 
cases  where  a  proceeding  consists  of  several  administrative  steps,  the  annulment  of 
one  of  those  steps  does  not  annul  the  complete  proceeding.  The  anti-dumping 
proceeding  is  an  example  of  such  a  multi-step  proceeding.  Consequently,  the 
annulment  of  the  amending  Regulation  in  relation  to  one  party  does  not  imply  the 
annulment of the entire procedure prior to the adoption of that Regulation13. Moreover, 
according  to  Article  266  of  the  Treaty  on  the  Functioning  of  the  European  Union 

12 
13 

Chemical Economics Handbook Product Review, 'Ethanolamines', SRI Consulting.  
Case C-458/98 P, Industrie des Poudres Sphériques v Council [2000] ECR I-8147. 

EN 

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(TFEU), the Union institutions are required to comply with the judgment. In the light 
of the above, the claim that there is no legal basis for the partial reopening of a review 
investigation was found to be unwarranted.  

(25)  The  claim that the introduction of deadlines  to  conclude anti-dumping investigations 
prevents  the  Commission  from  extending  the  investigation  beyond  the  15-months 
statutory limit (recital (17) above) was also found to be unwarranted. It is considered 
that this deadline is not relevant for the implementation of a Court judgment. Indeed, 
such deadline only governs the completion of the initial review investigation from the 
date of initiation to the date of definitive action, and does not concern any subsequent 
action  that  might  have  to  be  taken  for  instance  as  a  result  of  judicial  review.  The 
consequence of accepting such claim would make it impossible for the institutions to 
take account of the General Court’s findings (as Article 266 TFEU requires). Indeed, 
the General Court’s judgment will always be handed down at a point in time when the 
deadline  for  the  investigation  has  expired.  Furthermore,  it  is  noted  that  any  other 
interpretation would mean that, for example, a successful legal action brought by one 
party would be without any practical effect for that party if the expiry of the time limit 
to  conclude  the  original  investigation  would  not  permit  the  implementation  of  a 
judgment of the General Court. This would be at odds with the principle that all parties 
should have the right to effective judicial review. 

(26)  Concerning  the  claim  that  the  Commission  would  not  be  able  to  legally  remedy  the 
errors  of  assessment  found  to  be  contained  in  the  contested  Regulation  and  that  the 
only mean to implement the judgement is to repeal the existing measures (recital (18) 
above),  the  following  should  be  noted.  The  Court  has  already  established  that  the 
annulment of a Regulation also implies the possibility of remedying the aspects of the 
amending  Regulation  which  led  to  its  annulment,  while  leaving  unchanged  the 
uncontested  parts  which  are  not  affected  by  the  judgment  —  as  was  held  in  the  IPS 
judgement.  The  institutions  are  therefore  required  to  have  regard  not  only  to  the 
operative part of the judgment but also to the grounds which led to the judgment and 
constitute  its  essential  basis,  in  so  far  as  they  are  necessary  to  determine  the  exact 
meaning of what is stated in the operative part14. The procedure for replacing an illegal 
measure may thus be resumed.15. Hence, this is also considered to be unwarranted. 

(27)  The  General  Court,  as  also  noted  by  Stepan  and  Hunstman  (see  recital  (19)),  found 
that,  during  the  investigation  that  resulted  in  the  adoption  of  the  third  expiry  review 
Regulation, the institutions could not have come to the conclusion that dumping had 
continued during the RIP, nor that there was a likelihood of continuation of dumping. 
The  vast  majority  of  imports  from  the  USA  namely,  as  the  Court  noted,  more  than 
85%  from  Dow  Chemical,  had  entered  the  Union  at  non-dumped  prices.  Moreover, 
that situation  should have resulted in a  finding  that  the  weighted  average  margin  for 
imports  of  the  product  at  issue  originating  in  the  USA  was  negative.  The  Court 
concluded  that  the  institutions  were  thefore  obliged  to  demonstrate  that  there  was  a 
likehood of a recurrence of dumping16.  

(28)  The  analysis  of  the  likelihood  of  the  recurrence  of  dumping  is  in  this  case,  as  all 
interested  parties  recognize  explicitly  or  implicitly,  linked  to  the  calculation  of  the 
spare  production  capacity  in  the  USA.  Some  interested  parties  contend  that  the 
General  Court  confirmed  that  there  was  no  significant  spare  capacity  in  the  USA 

14 
15 
16 

Case C-458/98 P, Industrie des Poudres Sphériques v Council , paragraph 81. 
Case C-458/98 P, Industrie des Poudres Sphériques v Council, paragraph 82. 
Case T-158/10 The Dow Chemical Company v Council, paragraph 45.  

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during the RIP. The Court found that the calculation methodology resulting in a spare 
production capacity of ethanolamines of 60 000 tonnes during the RIP was confusing 
and that the resulting number of 60 000 tonnes was in conflict with the evidence relied 
on in the case17. 

(29)  As mentioned in recital (15), the Union industry has submitted that, based on PCI data, 
there  would 
exceeding  
60  000  tonnes.  It  is  however  noted  that,  in  the  calculation  submitted  by  the  Union 
industry,  the  total  US  production  capacity  had  been  used,  i.e.  no  downwards 
adjustment to 90% thereof had been done.  

country-wide 

capacity 

spare 

2008 

be 

in 

a 

(30)  As  regards  the  allegations  regarding  the  calculation  of  the  spare  capacity  during  the 
RIP, it is noted that two exporting producers cooperated with the third expiry review 
investigation.  During  that  investigation,  it  was  established  that  INEOS  Oxide  LLC 
(hereafter:  "INEOS")  did  not  have  any  spare  capacity  during  the  RIP,  whereas  Dow 
Chemical had some. The verified information shows that Dow Chemical did not use 
its  spare  capacity  to  engage  in  low-prices  exports  during  the  RIP  although  it  could 
have  done  so  given  the  low  level  of  the  measures  when  expressed  at  an  ad  valorem 
equivalent.  

(31)  Moreover, the cooperating companies, Dow Chemical and INEOS, represented during 
the RIP together 91,6% of exports from the US into the EU. The total exports of Dow 
Chemical  and  INEOS  amounted  to  30  000  –  35  000  tonnes;  exports  from  non-
cooperating  companies  were  not  more  than  3  000  –  4  000  tonnes.  The  country-wide 
dumping  margin  during  the  RIP  was  de  minimis  and  imports  from  non-cooperating 
companies  represented  less  than  1%  of  EU  market.  For  confidentiality  reasons  the 
above figures have either been given in the form of ranges or are not exact figure. 

(32)  As  mentioned  in  recital  (16),  the  Union  industry  referred  to  different  factors  which 
would indicate that, according to them, there was still a likelihood of a recurrence of 
dumping  after  2008.  However,  market  conditions  have  not  changed  materially  since 
the  publication  of  the  third  expiry  review  Regulation.  These  circumstances  are  also 
acknowledged by the Union industry. However, it should be noted that as mentioned 
in  recitals  (30)  and(31),  given  the  low  level  of  the  measures  and  the  lack  of  spare 
capacity  from  INEOS  as  well  as  the  absence  of  dumping  from  Dow,  there  is  no 
indication that the repeal of the measure would be likely to change the situation. 

(33)  An  exporting  producer  commented  that  the  third  expiry  review  should  not  have 
concluded  with  Regulation  54/2010  imposing  measures.  The  exporting  producer 
requested that measures be repealed with retroactive effect so that all duties paid since 
the date of entry into force of Regulation No 54/2010 be reimbursed to all importers 
who duly paid them.  

(34)  This  claim  is  rejected  as  exporting  producers  other  than  Dow  Chemical  could  also 
have  brought  an  action  for  annulment  against  the  Regulation  -  which  was  annulled 
only insofar it concerned the applicant, i.e. Dow Chemical. Therefore, according to the 
principle  of  legal  certainty  and  following  the  jurisprudence  of  the  Court18,  the 
regulation became definitive as regards the other exporting producers. 

2.4. 

Conclusion 

17 
18 

Case T-158/10 The Dow Chemical Company v Council, paragraph 54. 
Case C-239/99 Nachi Europe GmHb v Hauptzollamt Krefeld, ECR I-1220. 

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(35)  Account  taken  of  the  comments  made  by  parties  and  the  analysis  thereof,  it  was 
concluded that the implementation of the General Court judgement implies that during 
the  investigation  that  resulted  in  the  adoption  of  Regulation  No  54/2010,  the 
institutions could not have come to the conclusion that dumping had continued during 
the  RIP,  nor  that  there  was  a  likelihood  of  continuation  of  dumping.  Moreover,  the 
institutions should also have concluded that there was no likelihood of recurrence of 
dumping. 

(36)  On  the  basis  of  the  above,  the  anti-dumping  duty  on  ethanolamines  should  not  have 
been reintroduced. With respect to Dow Chemical, it should be recalled that Council 
Implementing  Regulation  54/2010  has  already  been  annulled  in  so  far  as  Dow 
Chemical  is  concerned  by  the  judgment  of  the  General  Court  in  case  T-158/10. 
Therefore, for the sake of clarity, it should be pointed out that with regard to imports 
of  ethanolamines  from  Dow  Chemical,  the  anti-dumping  duties  are  not  in  force 
anymore  as  of  the  date  of  entry  into  force  of  Council  Implementing  Regulation 
54/2010 (i.e., 23 January 2010). 

3. 

(37) 

FOURTH EXPIRY REVIEW 

In light of the above and in particular recital (35), it is considered that the fourth expiry 
review  should  be  terminated  without  reimposing  a  duty.  With  regard  to  Dow 
Chemical,  the  fourth  expiry  review  was  deprived  of  object  by  the  judgment  of  the 
Court of 8 May 2012 and no legal basis exists for the collection of anti-dumping duties 
on imports from Dow Chemical as of 23 January 2010.  

4. 

PARTIAL INTERIM REVIEW 

(38)  Account taken of the findings summarised in recital (35) above, it is considered that 
the review should be terminated, since the basis for the very existence of the measures, 
i.e.,  a  finding  of  a  likelihood  of  continuation  or  recurrence  of  injurious  dumping,  is 
missing. 

5. 

COMMENTS RECEIVED   

(39)  All  parties  were  informed  of  the  essential  facts  and  considerations  on  the  basis  of 
which it was intended to recommend  that  the existing measures  be  terminated.  They 
were also granted a period within which they could make representations subsequent 
to  this  disclosure.  These  comments  were  duly  considered  but  were  not  as  such  as  to 
change the conclusions. 

6. 

(40) 

CONCLUSIONS  

It follows from the above that the partial reopening investigation should be terminated 
and  that  the  anti-dumping  measures  on  imports  of  ethanolamines  originating  in  the 
United  States  of  America  should  be  repealed.  With  respect  to  imports  of 
ethanolamines from Dow Chemical, since Council Implementing Regulation 54/2010 
had already been annuled in so far as Dow Chemical is concerned, the measures are 
not  in  force  as  of  the  date  of  entry  into  force  of  Council  Implementing  Regulation 
54/2010 (23 January 2010). 

(41)  The fourth expiry investigation concerning anti-dumping duties in force on imports of 
ethanolamines originating in the USA should also be terminated without reimposing a 
duty.  With  respect  to  imports  from  Dow  Chemical,  this  expiry  review  has  been 
deprived of its object.  

(42)  The partial interim review limited in scope to the examination of dumping should be 

terminated on the basis of the repeal of the existing measures. 

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HAS ADOPTED THIS REGULATION: 

Article 1 

1. 
The  partial  reopening  of  the  anti-dumping  investigation  concerning  imports  of 
ethanolamines currently falling within CN codes ex 2922 11 00 (monoethanolamine) (TARIC 
code 2922 11 00 10), ex 2922 12 00 (diethanolamine) (TARIC code 2922 12 00 10) and 2922 
13  10  (triethanolamine),  originating  in  the  United  States  of  America  is  hereby  terminated 
without reimposing the duties and measures are repealed. 

2. 
With respect to imports from The Dow Chemical Company, no legal basis exists for 
the collection of anti-dumping duties on imports from The Dow Chemical Company as of 23 
January 2010. 

Article 2 

The  expiry  review  investigation  of  the  anti-dumping  investigation  concerning  imports  of 
ethanolamines from all exporting producers, currently falling within CN codes ex 2922 11 00 
(monoethanolamine) (TARIC code 2922 11 00 10), ex 2922 12 00 (diethanolamine) (TARIC 
code  2922  12  00  10)  and  2922  13  10  (triethanolamine),  originating  in  the  United  States  of 
America, initiated on 21 January 2012, is hereby terminated without imposition of measures. 
With  respect  to  imports  from  The  Dow  Chemical  Company,  this  expiry  review  has  been 
deprived of its object. 

Article 3 

The partial interim review limited in scope to the examination of dumping concerning imports 
of  ethanolamines  from  The  Dow  Chemical  Company  currently  falling  within  CN  codes  ex 
2922  11  00  (monoethanolamine)  (TARIC  code  2922  11  00  10),  ex  2922  12  00 
(diethanolamine) (TARIC code 2922 12 00 10) and 2922 13 10 (triethanolamine), originating 
in the United States of America is hereby terminated. 

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

Article 4 

EN 

11 

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This Regulation shall be binding in its entirety and directly applicable in the Member States in 
accordance with the Treaties. 

Done at Brussels,  

For the Council 
The President 

EN 

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   EN