Commission Implementing Decision (EU) 2024/462 of 8 February 2024 concerning the implementation of the judgment of the Court of Justice of the European Union C-461/18 P and the judgment of the General Court of the European Union T-442/12 in relation to Council Implementing Regulation (EU) No 626/2012 amending Implementing Regulation (EU) No 349/2012 imposing a definitive anti-dumping duty on imports of tartaric acid originating in the People’s Republic of China
Date: 2024-02-08
Institutions: Directorate-General for Trade and Economic Security, European Commission
Subjects: China, anti-dumping duty, import (EU), organic acid, originating product








L_202400462EN.000101.fmx.xml












Official Journal of the European Union


EN
Series L













2024/462


12.2.2024







            COMMISSION IMPLEMENTING DECISION (EU) 2024/462
of 8 February 2024
         
concerning the implementation of the judgment of the Court of Justice of the European Union C-461/18 P and the judgment of the General Court of the European Union T-442/12 in relation to Council Implementing Regulation (EU) No 626/2012 amending Implementing Regulation (EU) No 349/2012 imposing a definitive anti-dumping duty on imports of tartaric acid originating in the People’s Republic of China


THE EUROPEAN COMMISSION,

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


Having regard to Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (1), and in particular Article 9(4) thereof,

Whereas:
1.   PROCEDURE






(1)


In its judgment of 1 June 2017 in Case T-442/12 Changmao Biochemical Engineering Co. Ltd v Council, the General Court of the European Union (‘the General Court’) annulled the Council Implementing Regulation (EU) No 626/2012 (2) imposing a definitive anti-dumping duty on imports of tartaric acid originating in the People’s Republic of China, to the extent that it applies to the Chinese exporting producer Changmao Biochemical Engineering Co. Ltd. (‘Changmao’) (‘the Regulation at issue’).










(2)


On 7 September 2017, the European Commission (‘the Commission’) published a Notice (3) in the Official Journal of the European Union (‘the 2017 Notice’) reopening the anti-dumping investigation concerning imports of tartaric acid originating in the People’s Republic of China that led to the adoption of Implementing Regulation (EU) No 626/2012, in so far as it concerns Changmao concerning the judgment of 1 June 2017 in Case T-442/12 (4) (‘the Changmao judgment’).










(3)


This Notice reopened the anti-dumping investigation concerning imports of tartaric acid originating in the People’s Republic of China that led to the adoption of Implementing Regulation (EU) No 626/2012 (‘the review investigation’), in so far as it concerned Changmao.










(4)


In its judgments of 3 May 2018, in Case T-431/12, Distillerie Bonollo SpA and Others v Council of the European Union (5) and of 3 December 2020, in Case C-461/18 P Changmao Biochemical Engineering Co. Ltd v Distillerie Bonollo SpA and Others (6) (‘the Bonollo judgments), the Regulation at issue was annulled with respect to both Changmao and Ninghai Organic Chemical Factory.










(5)


The Regulation at issue led to an increase of the anti-dumping duties imposed on two exporting producers (Changmao Biochemical Engineering Co. Ltd, from 10,1 % to 13,1 %, and Ninghai Organic Chemical Factory, from 4,7 % to 8,3 %), following an interim review requested by several Union producers.










(6)


Specifically, the General Court determined that in the review investigation, the Council calculated the normal value of tartaric acid based on costs of production in Argentina, whereas during the initial investigation, the Council calculated the normal value based on Argentinian domestic sales prices.










(7)


The General Court concluded that this constituted a change in methodology within the meaning of Article 11(9) of Council Regulation (EC) No 1225/2009 (7).










(8)


The General Court annulled the Regulation at issue in its entirety but, following the request by the Union producers, maintained the higher anti-dumping duty imposed on one exporting producer (Ninghai Organic Chemical Factory).










(9)


On 16 December 2021, the Commission published a further Notice (8) in the Official Journal of the European Union (‘the 2021 Notice’) concerning the judgment of 3 December 2020 in Case C-461/18 P.










(10)


The 2021 Notice extended the scope of the 2017 Notice to implement the findings of the Bonollo judgments.




1.1.   Interested parties






(11)


In the 2017 and 2021 Notices, the Commission invited interested parties to contact it to participate in the reopened proceedings. In addition, the Commission specifically informed the exporting producers, the Union producers and the Government of China about the reopening of the investigation and invited them to participate.










(12)


Interested parties had an opportunity to comment on the initiation of the investigation and to request a hearing with the Commission and/or the Hearing Officer in trade proceedings.




1.2.   Response to the 2017 Notice






(13)


The Commission received one response to the 2017 Notice from Changmao, which set out their view of the reopening procedure and the disclosure necessary to comply with the Court judgment. However, no further action was taken on the 2017 Notice while the Commission awaited the Bonollo judgments.




1.3.   Response to the 2021 Notice and the Note for the file






(14)


On the day of publication of the Notice of Initiation, the Commission also placed a Note on the open file of the reopening and invited the interested parties to comment on the most appropriate methodology to use to ensure a fair comparison between the export price of DL tartaric acid from the two Chinese exporting producers and the domestic prices of L+ tartaric acid in Argentina.










(15)


The Commission received a reply from the Union industry. However, this reply did not provide an appropriate methodology to use to ensure a fair comparison between the two product types, as it suggested that the Commission should exclude DL tartaric acid from the product scope.




2.   IMPLEMENTATION






(16)


The Changmao judgment annulled the Implementing Regulation (EU) No 626/2012 as far as Changmao was concerned, as the Commission did not respect their rights of defence, that is, the disclosure of certain information in the context of the calculation of the normal value.










(17)


However, the implementing obligation stemming from the Changmao judgment was superseded by the implementing obligations which came from the Bonollo judgments requiring the recalculation of the normal value.










(18)


To comply with the Bonollo judgments and in the light of the judgment in Case T-650/17, Jinan Meide Casting Co. Ltd v European Commission (9), an adjustment to ensure a fair comparison between the export price of DL tartaric acid from the two Chinese exporting producers and the domestic prices of L+ tartaric acid in Argentina was necessary.










(19)


Argentina was used as the analogue country and source of normal value in the investigation that led to the adoption of Implementing Regulation (EU) No 626/2012 (‘the review investigation’).










(20)


During the initial investigation period, the Chinese producers exported two product types to the European Union, namely L+ tartaric acid and DL tartaric acid.










(21)


However, the producer in the analogue country only manufactured and sold L+ tartaric acid and did not produce DL tartaric acid.










(22)


The export prices from the Chinese exporting producers had been calculated in the review investigation, and the normal value from the Argentine analogue country producer based on the domestic sales prices of L+ tartaric acid was also established in the review investigation.










(23)


However, the adjustment under Article 2(10)(a) used in the review investigation to compare the Chinese export prices with the domestic sales prices in Argentina was based on prices likely to be affected by dumping and originating in a non-market-economy country.










(24)


In line with the Jinan Meide judgment, these prices cannot form the basis for a reasonable estimate of the market value of differences in physical characteristics as such prices may not be the result of normal market forces.










(25)


The Commission therefore needed a legal and reasonable estimate of the market value of the price difference between the two product types under Article 2(10)(a) of the basic Regulation to calculate a dumping margin for the two Chinese exporting producers and to calculate a residual dumping margin.










(26)


In the absence of any comments from the interested parties, the Commission considered several options for a reasonable estimate of the market value of the price difference between the two product types of tartaric acid, considering that the use of the price difference data available on file, which is based on Chinese export prices, would be contrary to the requirements of the Jinan Meide judgment.










(27)


The Commission identified a manufacturer of DL tartaric acid in India but found no evidence of production of L+ tartaric acid.










(28)


The Commission also contacted the European Union Delegation in New Delhi who were able to identify advertised prices of both DL and L+ tartaric acid sold on the Indian domestic market.










(29)


However, import data show that almost all L+ tartaric acid sold on the Indian domestic market originates in China, and therefore this data would not form the basis of a reasonable estimate of the market value of the difference between the two product types.










(30)


The Commission was unable to find another country where both L+ and DL tartaric acid were manufactured and sold and received no suggestions from any interested party where such data could be found.










(31)


The Commission also considered data from previous tartaric acid investigations when the exporting producers had been granted Market Economy Treatment (‘MET’) but could find no pattern in the data that would allow a reasonable estimate of the market value on the Chinese domestic market for the purpose of the adjustment under Article 2(10)(a).










(32)


The Commission therefore concluded that the errors identified as regards the calculation of the normal value could not be cured, in the absence of reasonable data for the purpose of the adjustment under Article 2(10)(a) of the basic Regulation.










(33)


This means that the evolution of the applicable duties was as follows:









Date as of


Hangzhou Bioking


Changmao Biochemical


Ninghai Organic


All other companies




31 July 2005


2,4  %


13,8  %


6,6  %


34,9  %




28 January 2006


-


10,1  %


4,7  %


34,9  %




25 April 2012


-


10,1  %


4,7  %


34,9  %




14 July 2012


-


13,1  % (10)



8,3  %


34,9  %




7 September 2017


-


10,1  %


8,3  %


34,9  %




30 June 2018


-


10,1  %


8,3  %


34,9  %




1 July 2023


-


-


-


-








3.   EXPIRY OF THE MEASURES IN FORCE






(34)


On 29 September 2022, the Commission published a Notice of impending expiry of the measures in force on imports of tartaric acid originating in the People’s Republic of China (11).










(35)


As no request for an expiry review was received, the measures on imports of tartaric acid from China expired on 30 June 2023 (12).










(36)


Given that there are no measures in force on which the Court judgments could be implemented, the Commission decided therefore to terminate the reopening investigation.




4.   DISCLOSURE






(37)


On 16 November 2023, the Commission disclosed its findings to the interested parties and invited comments. No comments were received.










(38)


This Decision is in accordance with the opinion of the Committee established by Article 15(1) of Regulation (EU) 2016/1036,




HAS ADOPTED THIS DECISION:



Article 1
The reopening of the anti-dumping investigation concerning imports of tartaric acid originating in the People’s Republic of China that led to the adoption of Implementing Regulation (EU) No 626/2012 is terminated.


Article 2
This Decision shall enter into force on the day following that of its publication in the Official Journal of the European Union.




Done at Brussels, 8 February 2024.


For the Commission


The President

Ursula VON DER LEYEN
            





(1)  
            OJ L 176, 30.6.2016, p. 21.

(2)  Council Implementing Regulation (EU) No 626/2012 of 26 June 2012 amending Implementing Regulation (EU) No 349/2012 imposing a definitive anti-dumping duty on imports of tartaric acid originating in the People’s Republic of China (OJ L 182, 13.7.2012, p. 1).

(3)  
            OJ C 296, 7.9.2017, p. 16.

(4)  Judgment of the General Court of 1 June 2017, Changmao Biochemical Engineering v Council, Case T-442/12, ECLI:EU:T:2017:372.

(5)  Judgment of the General Court of 3 May 2018, Distillerie Bonollo SpA and Others v Council of the European Union, Case T-431/12, ECLI:EU:T:2018:251.

(6)  Judgment of the Court of Justice of 3 December 2020, Changmao Biochemical Engineering Co. Ltd v Distillerie Bonollo SpA and Others, Case C-461/18 P, ECLI:EU:C:2020:979.

(7)  Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ L 343, 22.12.2009, p. 51) (the basic anti-dumping Regulation in force during the review investigation).

(8)  
            OJ C 507, 16.12.2021, p. 13.

(9)  Judgment of the General Court of 20 September 2019, Jinan Meide Casting Co. Ltd. v European Commission, Case T-650/17, ECLI:EU:T:2019:644.

(10)  
            OJ C 296, 7.9.2017, p. 16. Notice concerning the judgment of 1 June 2017 in case T-442/12 in relation to Council Implementing Regulation (EU) No 626/2012 amending Implementing Regulation (EU) No 349/2012 imposing a definitive anti-dumping duty on imports of tartaric acid originating in the People’s Republic of China. This Notice provided for customs authorities to refund the difference between the 13,1 % imposed in 2012 and the 10,1 % reimposed by the Court. https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52017XC0907(02)

(11)  
            OJ C 372, 29.9.2022, p. 3.

(12)  
            OJ C 226, 28.6.2023, p. 9.


ELI: http://data.europa.eu/eli/dec_impl/2024/462/oj
ISSN 1977-0677 (electronic edition)