CELEX: 52012PC0111
Language: en
Date: 2012-03-16
Title: Proposal for a COUNCIL REGULATION imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of oxalic acid originating in India and the People's Republic of China

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		52012PC0111
		
			Proposal for a COUNCIL REGULATION imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of oxalic acid originating in India and the People's Republic of China /* COM/2012/0111 final - 2012/0050 (NLE) */
			
				
		
		
			
			   	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 oxalic acid
originating in India and 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
Commission Regulation (EU) No 1043/2011
imposing a provisional anti-dumping duty on imports of oxalic acid originating
in India and the People's Republic of China.
·      Consistency with other policies and objectives of the Union
Not applicable.
2.           Consultation of interested
parties and impact assessment
·      Consultation of interested parties
Interested parties concerned by the proceeding
have had the possibility to defend their interests during the investigation, in
line with the provisions of the basic Regulation.
·      Collection and use of expertise
There was no need for external expertise.
·      Impact assessment
This proposal is the result of the
implementation of the basic Regulation.
The basic Regulation does not contain
provisions for a general impact assessment but contains an exhaustive list of
conditions that have to be assessed.
3.           LEGAL ELEMENTS OF THE
PROPOSAL
·      Summary of the proposed action
The attached proposal for a Council Regulation
is based on the definitive findings on dumping, injury, causation and Union
interest. It is therefore proposed that the Council adopt the attached proposal
for a Regulation which should be published no later than 20 April 2012.
·      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.
2012/0050 (NLE)
Proposal for a
COUNCIL REGULATION
imposing a definitive anti-dumping duty
and collecting definitively the provisional duty imposed on imports of oxalic
acid originating in India and 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 Community[1]
(‘the basic Regulation’), and in particular Article 9(4) thereof,
Having regard to the proposal submitted by
the European Commission (the Commisison) after having consulted the Advisory
Committee,
Whereas:
1.           PROCEDURE
1.1.        Provisional measures
(1)       The Commission, by
Regulation (EU) No 1043/2011[2]
('the provisional Regulation') imposed a provisional anti-dumping duty on
imports of oxalic acid originating in India and the People's Republic of China
('the PRC'). The provisional anti-dumping duties ranged from 14.6% to 52.2%.
(2)       The proceeding was
initiated as a result of a complaint lodged on 13 December 2010 by the European
Chemical Industry Council (CEFIC) on behalf of Oxaquim S.A. (‘the
complainant’), representing a major proportion, in this case more than 25%, of
the total Union production of oxalic acid.
(3)       As set out in recital (9)
of the provisional Regulation, the investigation of dumping and injury covered
the period from 1 January 2010 to 31 December 2010 (‘investigation period’ or
‘IP’). The examination of the trends relevant for the assessment of injury
covered the period from 1 January 2007 to the end of the investigation period
(‘period considered’). 
1.2.        Subsequent procedure
(4)       Subsequent to the
disclosure of the essential facts and considerations on the basis of which it
was decided to impose provisional anti-dumping measures ('provisional disclosure'),
several interested parties made written submissions making their views known on
the provisional findings. The parties who so requested were granted an
opportunity to be heard. In particular, one exporting producer from India
requested and was afforded a hearing in the presence of the Hearing Officer of the
Directorate-General for Trade.
(5)       The Commission continued
to seek information it deemed necessary for its definitive findings. 
(6)       Recital (150) of the
provisional Regulation invited Chinese companies which had not yet made
themselves known but considered that an individual duty should be established
for them to come forward within 10 days from publication. No Chinese company
did so.
(7)       Subsequently, 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 oxalic acid originating in India and 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. 
(8)       The oral and written
comments submitted by the interested parties were considered and were taken
into account where appropriate.
1.3.        Parties concerned by the
proceeding
(9)       In the absence of any
comments with regard to the parties concerned by the proceeding, recitals (3)
to (8) of the provisional Regulation are hereby confirmed.
2.           PRODUCT CONCERNED AND LIKE
PRODUCT
2.1.        Product concerned
(10)     The product concerned is as
described in recitals (10) and (11) of the provisional Regulation, i.e. oxalic
acid, whether in dihydrate (CUS number 0028635-1 and CAS number 6153-56-6) or
anhydrous form (CUS number 0021238-4 and CAS number 144-62-7), and whether or
not in aqueous solution, currently falling within CN code ex 2917 11 00 and originating
in India and the PRC.
(11)     There are two types of
oxalic acid: unrefined oxalic acid and refined oxalic acid. Refined oxalic
acid, which is produced in the PRC but not in India, is manufactured through a
purification process of unrefined oxalic acid, the purpose of which is to
remove iron, chlorides, metal traces and other impurities.
(12)     Oxalic acid is used in a
wide range of applications, for example as a reducing and bleaching agent, in
pharmaceutical synthesis and in the manufacture of chemicals.
2.2.        Like product
(13)     The investigation has shown
that oxalic acid produced and sold by the Union industry in the Union, oxalic
acid produced and sold on the domestic market of India and the PRC and oxalic
acid imported into the Union from India and the PRC have essentially the same
basic physical and chemical characteristics and the same basic end uses. 
(14)     In the absence of any comments
regarding the product concerned or like product, recitals (10) to (13) of the
provisional Regulation are hereby confirmed.
3.           DUMPING
3.1.        India 
3.1.1.     Preliminary remark
(15)     In recital (14) of the
provisional Regulation, the Commission found that one Indian exporting producer
could not be considered as a cooperating party and accordingly the findings for
that company were made on facts available as set out in Article 18 of the basic
Regulation. 
(16)     Following
the disclosure of provisional findings to this company, Star Oxochem Pvt. Ltd, it
provided additional explanations and clarifications in respect of the information
submitted earlier in the investigation by the company. It also requested to be
heard by the Commission and by the Hearing Officer of the Directorate-General
for Trade. The company argued that, given that it had submitted a questionnaire
response and bearing in mind that the Commission services had visited the
premises of the company and also in light of the additional explanations and
clarifications now provided, it would not be appropriate if it were to continue
to be treated like exporting producers who had not cooperated in any way with
the investigation. 
(17)     In
light of the above, in particular the additional explanations and clarifications
provided, the Commission's services consider that they can use part of the
original information, namely data related to export prices, as they were found
to be reliable. It follows from the above considerations that the provisional
findings, as set out in recital (14) of the provisional Regulation, are only
partially maintained and findings in respect of this company are made partially
on facts available and partially on its own export prices in accordance with
Articles 18(1) and 18(3) of the basic Regulation. 
3.1.2.     Normal value
(18)     No comments have been
submitted in respect of the methodology to calculate normal value for India.
Accordingly, the findings in recitals (15) to (18) of the provisional
Regulation are confirmed with regard to the cooperating company.
(19)     With regard to Star
Oxochem, and taking into account the findings above (recitals (16)-(17)), the
normal value was established on the basis of facts available pursuant to
Article 18(1) of the basic Regulation. Accordingly, the normal value for this
company was based on the weighted average of a representative quantity of
domestic sales by the other cooperating company, Punjab Chemicals. 
3.1.3.     Export price
(20)     In the absence of any
comments, the determination of the export price, as set out in recital (19) of
the provisional Regulation, is confirmed with regard to Punjab Chemicals.
(21)     In view of the conclusions
as set out above in recitals (16)-(17), the export price for Star Oxochem is,
pursuant to Article 2(8) of the basic Regulation, established on the basis of
the prices actually paid or payable by independent customers for the product
concerned when exported to the Union.
3.1.4.     Comparison
(22)     In the absence of any
comments with regard to the comparison of the normal value and the export
prices, recitals (20) and (21) of the provisional Regulation are confirmed as
far as the cooperating producer, Punjab Chemicals, is concerned. 
(23)     With regard to Star
Oxochem, adjustments have been made in accordance to Article 2(10) of the Basic
Regulation based on the verified allowances of Punjab Chemicals. 
3.1.5.     Dumping margin
(24)     With regard to the
cooperating producer no comments have been made on the Commission's provisional
findings. Therefore, the dumping margin, as set out in recitals (22) and (23) of
the provisional Regulation are confirmed.
(25)     With regard to STAR Oxochem
and taking into account the above considerations, the dumping margin, expressed
as a percentage of the cif Union border price, duty unpaid is 31.5%.
(26)     In view of the low
cooperation from India (below 80%) it was provisionally considered that the
highest dumped transaction of the cooperating party was the most appropriate
method for establishing the country-wide dumping margin. This transaction is
not exceptional in terms of either quantity or price and is therefore
considered a representative sample that leads to a reasonable and proportionate
result in relation to the dumping margin established for the cooperating
producer.
(27)     In
view of the above the considerations the findings in recitals (24) and (25) of
the provisional Regulation are confirmed.
(28)     On this basis the
definitive dumping margins expressed as a percentage of the CIF Union frontier
price, duty unpaid, for India are: 
 Company || Definitive dumping margin 
 Punjab Chemicals and Crop Protection Limited || 22.8% 
 Star Oxochem Pvt. Ltd || 31.5% 
 All other companies || 43.6% 
3.2.        People's Republic of China
3.2.1.     Market Economy Treatment
(MET) / Individual Treatment (IT)
(29)     As set out in the
provisional Regulation, one group of Chinese companies requested MET or,
failing that, IT, while another group of Chinese companies requested IT only.
As set out in recitals (26) to (32) of the provisional Regulation, the claim
for MET was rejected whereas both groups of companies were provisionally
granted IT. 
(30)     No comments have been
submitted in respect of these provisional finding and recitals (26) to (32) of
the provisional Regulation are hereby confirmed.
3.2.2.     Analogue country
(31)     No comments were received
on the provisional choice of analogue country. Accordingly, recitals (33) to
(34) of the provisional Regulation are confirmed.
3.2.3.     Normal value
(32)     It
was explained in the provisional Regulation that the Commission established separate
normal values for both unrefined and refined oxalic acid. While
the normal value for unrefined oxalic acid was determined on the basis of the
normal value established for India, the normal value for refined oxalic acid,
which is not produced in India, was constructed on the basis of the
manufacturing costs for Indian unrefined oxalic acid, adjusted with an uplift
of 12% to take into account additional manufacturing costs, plus SG&A and
profit.
(33)     Both cooperating producers
from China contested the 12% uplift for additional manufacturing costs,
claiming that these additional costs have never been verified by the Commission
and appear to be simply a rough estimation based on a methodology that has not
been disclosed to them at the time of the provisional disclosure. One of the exporting
producers claimed that it had estimated the additional manufacturing cost at
only 5% although it did not substantiate this claim with any supporting
evidence.
(34)     It is pointed out that the uplift
has been determined on the basis of information provided by the cooperating Chinese
exporting producers themselves. First, it is noted that the same company which
now alleges that the additional manufacturing cost is only around 5% had
originally explicitly referred to additional costs of 10-15% in its MET/IT
claim form. Second, during the verification visits at the companies' premises,
both cooperating producers confirmed that the additional costs for
manufacturing refined oxalic acid as compared to unrefined oxalic acid were in
the band of 10-12%. Third, this latter level of 10-12% additional manufacturing
cost was also supported by calculations of the Union industry. In view of the
information provided by the cooperating producers an uplift of 12% was considered
approriate.
(35)     Therefore in the absence of
any substantiated information or supporting evidence justifying a lower uplift
the findings in recitals (35) to (37) of the provisional Regulation are hereby
confirmed.
3.2.4.     Export price 
(36)     Both exporting producers
from the PRC were granted IT, therefore their export prices were based on the
prices actually paid or payable by the first independent customer in the Union
in accordance with Article 2(8) of the basic Regulation.
(37)     In the absence of comments
with regard to the export price, recital (38) of the provisional Regulation is
hereby confirmed. 
3.2.5.     Comparison
(38)     One of the cooperating
producers claimed that the SG&A expenses of its related trader and
commissions should not be removed from the export price as an adjustment under Article
2(10)(i) of the basic Regulation. The producer stated that the direct selling
costs of their related trader had already been removed from the export price in
order to arrive at an ex-works price to compare with the normal value on the
same basis.
(39)     The producer argued that
their related trader was a wholly owned subsidiary and, in view of the export
profit distribution strategy within the group, did not charge any commission.
Furthermore, according to the company, the remaining SG&A expenses
represented the combined costs of operating the company and were not expenses
directly related to sales and should therefore not be removed from the export
price.
(40)     Article 2(10)(i) of the
basic Regulation states that commissions are to be understood to include the mark-up
received by a trader if the functions of such a trader are similar to those of
an agent working on a commission basis. It is therefore irrelevant whether a
commission was actually paid or not. What is relevant is whether the trader
re-sold the goods with a mark-up and whether the functions of the trader were
similar to those of an agent.
(41)     Evidence on file, obtained
before and during the inspection of the trading company, shows that the trader
during the IP sold oxalic acid produced by the related producer to a customer
in the EU. At the same time the producer was also exporting directly to the
same customer in the EU. The related trader therefore duplicated the effort of
the producer with different staff in a different office in a different city,
thereby incurring its own costs that are reflected in their export price.
(42)     It is also clear from
evidence on file that the trading company purchased the exported goods from the
related exporting producer and re-sold them, with a mark-up, in its own name,
after having itself concluded price negotiations with the final independent
customer. 
(43)     Evidence was also collected
regarding the trading company performing the functions of an agent. This
evidence firstly shows that the producer sold significant volumes of the
product concerned directly to the EU as well as exporting to the EU via their
related trading company. Only about one-third of sales to the EU were made via
this related company. The trader also re-sold oxalic acid from other unrelated
producers. Evidence on file shows that over half of the trader's purchases of
oxalic acid were from unrelated suppliers and less than half of their purchases
came from their related producer.
(44)     The trader could thus not
be considered as the internal export sales department of the producing exporter
despite its relationship with the exporting producer.
(45)     It is also clear from
evidence submitted and verified that the trader only pays for the goods
supplied from the related exporting producer once the customer in the EU has
paid the trader. The financial risk therefore remains with the producer and not
the trader.
(46)     It was therefore considered
that the trader was carrying out functions similar to those of an agent working
on a commission basis. Accordingly, the claim that no adjustments should be
made for commission under 2(10)(i) is rejected.
(47)     Also the claim that
SG&A expenses should not be taken into account as they do not include
direct selling expenses cannot be accepted. Such overhead costs have an impact
on the cost structure of the company and therefore affect the export price.
Therefore, a portion of these costs was removed from the export price to allow
for a fair comparison of normal value and export price, ex-works. This claim is
rejected.
(48)     The commission has been
established on the basis of the profit margin of an unrelated EU importer
rather than on the actual mark-up of the trader, which was significantly
higher. This methodology was deemed more approriate as the actual mark-up would
have been based on internal transfer prices not reflecting actual market
conditions. 
(49)     In the absence of any
further comments with regard to the comparison of the normal value and the
export price, recitals (39) to (44) of the provisional Regulation are hereby
confirmed.
3.2.6.     Dumping margins
For the cooperating exporting producers
(50)     One group of exporting
producers claimed that individual dumping margins should be established separately
for unrefined and refined oxalic acid. They argued that although dumping
margins were established on the basis of a comparison of the weighted average normal
value with the weighted average export price of the product concerned type by
type, one common dumping margin for both types of oxalic acid was established.
They claimed that it would be more appropriate to establish a dumping margin
for each type of oxalic acid as the group consists of two producing companies of
which one produces refined oxalic acid while the other produces unrefined
oxalic acid.
(51)     Unrefined oxalic acid can
be substituted by refined oxalic acid. Both types of oxalic acid are included
under the same CN code and the different types cannot easily be distinguished
from each other. The purity of the oxalic acid is the same, the difference is
in the levels of other products in the remaining 'waste' product. As they both
fall within the definition of the product concerned, one dumping margin has
been established in line with usual practice. Given the significant price
difference between the two types and the difficulties involved in
distinguishing them from each other individual dumping margins for refined and
unrefined oxalic acid would lead to an increased risk of circumvention. The
claim to have individual dumping margins for refined and unrefined oxalic acid,
is rejected and the dumping margins as established in recitals (45) and (46) of
the provisional Regulation are confirmed. 
(52)     Finally, the same exporting
producer group questioned the different dumping margins established for the two
groups of exporting producers from the PRC and requested clarification of the
calculation methodology and the classification of refined and unrefined oxalic
acid, given the difference in the dumping margins found between the two groups
of exporters. 
(53)     The same methodology has
been used in respect of both groups of exporting producers from the PRC and the
weighted average export price of the product concerned includes both refined
and unrefined oxalic acid. The explanation as to the different dumping margins rests
therefore simply on the relative weight of exports of the respective types,
considering that refined oxalic acid is normally sold at a higher price than
unrefined. 
(54)     The definitive dumping
margins expressed as a percentage of the CIF Union frontier price, duty unpaid,
are: 
 Company || Definitive dumping margin 
 Shandong Fengyuan Chemicals Stock Co., Ltd and Shandong Fengyuan Uranus Advanced material Co., Ltd || 37.7% 
 Yuanping Changyuan Chemicals Co., Ltd || 14.6% 
For all other non-cooperating exporting
producers
(55)     In the absence of other comments
with regard to the dumping margins, recitals (47) to (48) of the provisional
Regulation are hereby confirmed. 
(56)     On this basis the
country-wide level of dumping is definitely established at 52.2% of the CIF
Union frontier price, duty unpaid, and recital (49) of the provisional
Regulation is hereby confirmed.
4.           INJURY
4.1.        Union production and Union
industry
(57)     An
exporting producer submitted that the reference to two Union producers constituting
the Union industry in recitals (50) and (51) of the provisional Regulation (the
complainant and a second non-cooperating producer) did not properly reflect the
situation regarding macro economic indicators. It was also argued that data
regarding the non-cooperating producer as well as the data from a third Union
producer having stopped the production of OA should be disregarded and not be
included in some macro indicators (see recitals (72), (74) and (78) of the
provisional Regulation). First, it is hereby confirmed that contrary to what
was stated in recitals (50) and (51) of the provisional Regulation, there were in
fact three producers of the product concerned in the Union during the period
consideredconstituting the Union industry within the meaning of Article 4(1) of
the basic Regulation, which thus represent 100% of the Union production. Second,
the claim that figures pertaining to the non cooperating producer and the third
Union producer having ceased its operation in 2008 should be disregarded is
rejected, as it is correct to include all known figures related to the period
considered for the purpose of the injury analysis in order to achieved the best
informed representation of the economic situation of the Union industry as
prescribed in Article 4(1) of the basic Reegulation. 
(58)     The same exporting producer
also argued that the reasons for which this third producer has ceased its
production of the like product were not properly examined during the
investigation. However, this matter was examined during the investigation and
the company simply invoked the fact that it had stopped the production of the
like product for "internal reasons" without giving any further
explanations. In addition, one exporting producer concurred with this
explanation and claimed that the decision to stop the production was not due to
the alleged dumping practices from exporting producers in China, thus
contradicting the information which was made available by the complainant in
the non-confidential version of the complaint, in which it is stated that
"[the company] ceased production, once and for all, closing the factory
because of aggressive dumping from China and India". However, the
exporting producer did not provide any different information with regard to the
alleged production figures related to this third Union producer. Therefore,
this issue does not devaluate the fact that the data related to that third EU
producer could be used in the current investigation. 
(59)     Another exporting producer
argued that the minimum threshold for the standing at initiation was not
properly disclosed and in fact was not met. As mentioned in recital (2) of the
provisional Regulation, the complainant represented more than 25% of the total
Union production of oxalic acid and no producer expressing opposition has come
forward prior to the initiation of the investigation. An information note was
made available in the non-confidential file summarising the results of the
standing examination at initiation stage. Furthermore, the injury analysis made
pursuant to Article 4(1) of the basic Regulation covered a major proportion of
the Union Industry.
(60)     In
the absence of any further comments concerning the definition of the Union
production and the Union industry, recitals (50) and (51) of the provisional
Regulation are hereby confirmed subject to the clarification in recital (57) above.
4.2.        Determination of the
relevant Union market
(61)     An exporting producer
submitted that captive use of oxalic acid should not be considered in the
determination of some injury indicators and in any case the same consistent
approach should be applied to all injury indicators. However, the separation made between the captive and the free markets was explained in recitals (52), (53) and (55) of the provisional
Regulation and in line with the basic Regulation, the
focus of the analysis was primarily on the free market, even though, both the use in the free and the captive markets were included for
the determination of some injury indicators as indicated in recital (55).
Indeed, some injury indicators can only be examined in regard to the use of the
like product in the free market as, given the very nature of captive sales,
such indicators can be distorted by the relationship between the seller and
buyer. Therefore, this claim is rejected.
(62)     In
the absence of any other comments concerning the determination of the relevant
Union market, recitals (52) to (55) of the provisional Regulation are hereby
confirmed.
4.3.        Union consumption
(63)     In
the absence of any comments concerning the Union consumption, recitals (56) to
(58) of the provisional Regulation are hereby confirmed.
5.           Imports from the countries
concerned
5.1.        Cumulative
assessment of the effects of the imports concerned
(64)     In
the absence of any comments concerning the cumulative assessment of the effects
of the imports concerned, recitals (59) to (62) of the provisional Regulation are
hereby confirmed.
5.2.        Volume
and market share of dumped imports from the countries concerned
(65)     In
the absence of any comments concerning the volume and the market share of the
imports from the countries concerned, recitals (63) and (64) of the provisional
Regulation are hereby confirmed.
5.3.        Price of dumped imports and
price undercutting
(66)     As
mentioned in recital (144) of the provisional regulation, in the injury margin
calculation, the average import prices of the cooperating exporting producers
in the PRC and India have been duly adjusted for importation costs and customs
duties. An exporting producer argued however that the Commission failed to
include fully an allowance of 6.5% corresponding to the normal customs duty in
the injury margin calculation. This claim was found to be warrarnted and the injury
margins calculations were corrected accordingly for this exporting producer, as
well as for the other cooperating exporting producers. However, this had no
impact on the proposed definitive measures as indicated in recital (87) below. 
(67)     In
the absence of any other comments concerning the price of dumped imports and
price undercutting, recitals (65) to (68) of the provisional Regulation are
hereby confirmed.
6.           ECONOMIC Situation of the
Union industry
(68)     As mentioned in recital (57)
above, an exporting producer submitted that the figures related to a third
Union producer which ceased the production of oxalic acid in 2008 should not
have been included in some macro indicators (see recitals (72), (74) and (78)
of the provisional Regulation). However there are in fact three producers of
the like product in the Union
constituting the Union industry within the meaning of Article 4(1) of the basic
Regulation, representing 100% of the Union production throughout the whole
period considered, eventhough one producer stopped producing oxalic acid before
the IP. The claim that figures pertaining to the third Union producer having
ceased its operation in 2008 should be disregarded is rejected, as it is
correct to include all production figures related to the period considered for
the purpose of determining the economic situation of the Union industry.
(69)     The same exporting producer
argued that notwithstanding the alleged error mentioned in recital (66) above,
the figures related to the number of employees, total yearly wages and average
labour costs per employee in Table 6 of the provisional Regulation did not
tally. However, the exporting producer did not refer to the correct figure when
stating that average wages rose by 21%, in fact, the right figure is 19%.
(70)     With regard to the economic
crisis recitals (95) to (97) of the provisional Regulation clearly show that
imports from the countries concerned continued to gain market share despite the
decline in consumption and had a negative impact on various injury indicators
such as sales volumes, employment, production capacity and market share.
(71)     In the absence of any
comments regarding recitals (69) to (94) of the provisional Regulation, these
recitals are hereby confirmed.
7.           Conclusion on injury
(72)     An exporting producer
argued that contrary to the provisional findings, the Union industry did not suffer
material injury. It was claimed that, overall, the negative trends regarding
the Union industry were due to the effects of the economic crisis in 2008 and the
erroneous inclusion of the information related to the third Union producer
having ceased its production in 2008, which contributed to give a vitiated
representation of the injury situation. However, as mentioned above the
inclusion of the third producer was considered to be correct and market share
of the countries concerned continued to increase despite the crisis. 
(73)     Therefore, recitals (94) to
(98) of the provisional Regulation concluding that the Union industry suffered
material injury within the meaning of Article 3(5) of the basic Regulation are
hereby confirmed.
8.           CAUSATION
(74)     One exporting producer
stated that the inclusion of data related to a third Union producer having
ceased its production of oxalic acid in 2008 was distorting the provisional
conclusions regarding the causal link analysis, which should be based on
current producers only. Similarly to the injury analysis above, it was found
that conversely, not to include this third producer would distort the
conclusions in relation to the like product. However, as mentioned in recital (57)
above, relevant data for this company should also be included in the analysis
of the situation of the Union industry and this claim is therefore rejected. 
(75)     One exporting producer argued
that as the import volume of the dumped imports increased at the same time as
the profitability situation of the Union industry has improved, the dumped
imports could not be the main cause of injury. However, this minor improvement regarding
profitability does not devalue the conclusion that the overall profitability
remained very low and under the normal profit of 8%. Furthermore, despite the
fact that consumption increased substantially in 2008 and again during the IP
the Union industry lost 9% market share against the Chinese imports during the
period considered.
(76)     Another exporting producer
argued that based on the information available, the Union industry achieved in
the IP, a profit which was very close to the target profit of 8%. As the
information regarding profits relates to only one Union producer, the precise
profit levels cannot be published. However, as stated in recital (88) of the
provisional regulation, the complainant made a small profit in the IP, after
having made a loss in 2009. The assumptions that the exporting producer used to
conclude that the profit in the IP was allegedly close to the target profit were
in fact not correct as they did not include the relevant financial and
production data of the complainant, which for confidential reasons could not be
disclosed. The profit level of the complainant has been thoroughly verified,
including during an on-spot verification visit and therefore, allegations that the
profit achieved in the IP was very close to the target profit were found to be
incorrect. 
(77)     In the absence of any other
comments concerning causation, recitals (99) to (122) of the provisional
Regulation are hereby confirmed.
9.           UNION INTEREST
(78)     Two importers argued that
the measures could lead to shortages of oxalic acid in the EU. Allegedly, the
Union industry cannot meet the demand in the EU for oxalic acid.
(79)     The investigation revealed
that during the IP, the complainant had spare capacities. Furthermore, the
complainant stated that currently it is increasing its production, even though,
as the production of the product concerned is based on chemical reactions,
increasing capacity utilisation requires some time. However, based on the EU
consumption data and the total EU capacity, it can be considered that the
complainant is capable of meeting total Union demand for unrefined oxalic acid
once it is producing close to full capacity. With regard to refined oxalic acid
it is recalled that most of the refined oxalic acid is used in the production
of products that are subsequently exported, the users could operate under the
inward processing regime. In addition, the main Chinese exporter of refined
oxalic acid is the one with the lowest proposed duty (14.6%).
(80)     In addition, the
complainant argued that the global oxalic market (unrefined) is dominated by
the Chinese producers which are setting the price level for this product. Currently
the Chinese producers are more preoccupied with their domestic market and it
cannot be excluded that in the absence of measures and the probable
disappearance of the only remaining EU producer of unrefined oxalic acid, users
in the EU would face security of supply problems potentially with chronic
shortages and oligopolistic prices. 
(81)     Another importer/user
operating in a different downstream market segment than the previous one
alleged that the existence of provisional measures had a negative impact on the
profitability of its own products for which oxalic acid is the main raw
material, without however, providing any further details. The company was
invited to attend a hearing to further develop these concerns and provide
evidence, but did not react. Therefore, these allegations could not be
verified. 
(82)     In the absense of any other
comments concerning the Union interest, recitals (123) to (139) of the
provisional Regulation are hereby confirmed.
10.         DEFINITIVE ANTI-DUMPING
MEASURES
10.1.      Injury elimination level
(83)     As mentioned above in
recital (66) an exporting producer argued that the Commission failed to include
an allowance of 6.5% corresponding to the normal customs duty in the injury
margin calculation. This claim was found to be partially correct as for some
imports that were delivered to the EU customer on a duty paid basis, the duty had
been underestimated. Therefore the injury margins were corrected accordingly,
without however having, any significant impact on the proposed definitive
measures (see recital (87) below). 
(84)     In view of the conclusions
reached with regard to Star Oxochem, an injury margin was also established for
this exporting producer on the basis of the same calculation methodology as
laid down in recitals (142) to (144) of the provisional Regulation.
(85)     In the absence of comments
on the injury elimination level, recitals (145) to (148) of the provisional
Regulation are confirmed.
10.2.      Form and level of the duties
(86)     In the light of the
foregoing and in accordance with Article 9(4) of the basic Regulation, a
definitive anti-dumping duty should be imposed at the level of the dumping
margins found, since for all the exporting producers concerned the injury
margins were found to be higher than the dumping margins.
(87)     On
the basis of the above, the dumping and injury margins established are as
follows: 
 Company/group name || Injury margin (%) || Dumping margin (%) || Provisional duty (%) || Proposed duty (%) 
 India ||   ||   ||   ||   
 Punjab Chemicals and Crop Protection Limited (PCCPL) || 38,9 || 22,8 || 22,8 || 22,8 
 Star Oxochem Pvt. Ltd || 32,3 || 31,5 || 43,6 || 31,5 
 All other companies || 47,9 || 43,6 || 43,6 || 43,6 
 PRC ||   ||   ||   ||   
 Shandong Fengyuan Chemicals Stock Co., Ltd and Shandong Fengyuan Uranus Advanced Material Co., Ltd || 53,3 || 37,7 || 37,7 || 37,7 
 Yuanping Changyuan Chemicals Co., Ltd || 18,7 || 14,6 || 14,6 || 14,6 
 All other companies || 63,5 || 52,2 || 52,2 || 52,2 
(88)     The individual company's
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 with 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 products originating in India and the PRC and produced
by the companies and thus by the specific legal entities mentioned. Imported
products produced 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’.
(89)     Any claim requesting the
application of these individual anti-dumping duty rates (e.g. following a change
in the name of the entity or following the setting up of new production or
sales entities) should be addressed to the Commission[3] forthwith with all the relevant
information, in particular any modification in the company’s activities linked
to production, domestic and export sales associated with, for example, that
name change or that change in the production and sales entities. If
appropriate, the Regulation will then be amended accordingly by updating the
list of companies benefiting from individual duty rates.
(90)     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 oxalic acid originating in the PRC and India. They were also
granted a period of time within which they could make representations
subsequent to the final disclosure.
(91)     The
comments submitted by the interested parties were duly considered. None of the
comments was such as to alter the findings of the investigation.
(92)     In order to ensure a proper
enforcement of the anti-dumping duty, the residual duty level should not only apply
to the non-cooperating exporters, but also to those companies which did not
have any exports during the IP. However, the latter companies are invited, when
they fulfil the requirements of Article 11(4) of the basic Regulation, second
paragraph, to present a request for a review pursuant to that Article in order
to have their situation examined individually.
10.3.      Definitive collection of
provisional duties
(93)     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 to the extent of the amount of the definitive duties
imposed. Where the definitive duties are lower than the provisional duties, the
amount provisionally secured in excess of the definitive rate of anti-dumping
duties should be released.
11.         undertakings
(94)     One exporting producer in
India and two exporting producers in the People's Republic of China offered
price undertakings in accordance with Article 8(1) of the basic Regulation. 
(95)     The product concerned has
shown in the last years a considerable volatility in prices and therefore it is
not suitable for a fixed price undertaking. In order to overcome this problem,
the Indian exporting producer offered an indexation clause without, however,
determining the respective minimum price (MIP). In this respect it is noted
that no direct link between the fluctuation of prices and that of the main raw
material could be established and, thus, indexation is not considered
appropriate. In addition, the level of cooperation of this company throughout
the investigation and the accuracy of the data it had provided was not ideal.
Accordingly, the Commission was not satisfied that an undertaking from this
company could be effectively monitored.
(96)     Moreover, in relation to
the exporting producers in the PRC, the investigation established that there
are different types of the product concerned which are not easily
distinguishable and have considerable differences in prices. The single MIP for
all product types offered by one of the Chinese exporting producers would
therefore not eliminate the injurious effect of dumping. Furthermore, both
exporting producers concerned in the PRC are producers of different types of
other chemical products and may sell these products to common customers in the
European Union via related trading companies. This would create a serious risk
of cross-compensation and would render extremely difficult to monitor
effectively the undertaking. The different MIPs proposed by the other Chinese
exporting producer would also render the monitoring impracticable due to the
complexity of distinction between the various product types. On the basis of
the above, it was concluded that the undertaking offers cannot be accepted.
HAS ADOPTED THIS REGULATION:
Article 1
1.           A definitive anti-dumping
duty is hereby imposed on imports of oxalic acid, whether in dihydrate (CUS
number 0028635-1 and CAS number 6153-56-6) or anhydrous form (CUS number
0021238-4 and CAS number 144-62-7) and whether or not in aqueous solution,
currently falling within CN code ex 2917 11 00 (TARIC code 2917 11 00 91) and
originating in India and the People’s Republic of China.
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 produced by the companies
below shall be as follows:
 Country || Company || Anti-dumping duty rate % || TARIC additional code 
 India || Punjab Chemicals and Crop Protection Limited || 22.8 || B230 
 Star Oxochem Pvt. Ltd || 31.5 || B270 
 All other companies || 43.6 || B999 
 PRC || Shandong Fengyuan Chemicals Stock Co., Ltd; Shandong Fengyuan Uranus Advanced Material Co., Ltd. || 37.7 || B231 
 Yuanping Changyuan Chemicals Co., Ltd || 14.6 || B232 
 All other companies || 52.2 || B999 
3.           The
application of the individual duty rate specified for the companies listed in
paragraph 2 of this Article shall be conditional upon presentation to the
customs authority of the Member States of a valid commercial invoice, which
shall conform with the requirements set out in Annex. 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
The amounts secured by way of the
provisional anti-dumping duty pursuant to Commission Regulation (EU) No
1043/2011 imposing a provisional anti-dumping duty on imports of oxalic acid
originating in India and the People's Republic of China shall be definitively
collected. The amounts secured in
excess of the amount of the definitive anti-dumping duties shall be released.
Article 3
This Regulation shall enter into force on
the day following that of its publication in the Official Journal of the
European Union.
This Regulation shall be binding
in its entirety and directly applicable in all Member States.
Done at Brussels, 
                                                                       For
the Council
                                                                       The
President
ANNEX 
The valid commercial invoice referred to in
Article 1(4) of this Regulation must include a declaration signed by an
official of the entity, in the following format:
(1)              
The name and function of the official of the entity
which has issued the commercial invoice.
(2)              
The following declaration: “I, the undersigned,
certify that the “volume” of oxalic acid sold for export to the European Union covered
by this invoice was manufactured by (company name and address) (TARIC
additional code) in (country concerned). I declare that the information
provided in this invoice is complete and correct.”
Date and signature
[1]               OJ L 343, 22.12.2009, p. 51.
[2]               OJ L 275, 20.10.2011, p.1
[3]               European Commission
                Directorate-General
for Trade
                Directorate
H, Office: N105 04/092 
                B - 1049 Brussels