CELEX: 52012PC0112
Language: en
Date: 2012-03-16
Title: Proposal for a COUNCIL REGULATION imposing a definitive anti-dumping duty on imports of tartaric acid originating in the People's Republic of China following an expiry review pursuant to Article 11(2) of Regulation (EC) No 1225/2009

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		52012PC0112
		
			Proposal for a COUNCIL REGULATION imposing a definitive anti-dumping duty on imports of tartaric acid originating in the People's Republic of China following an expiry review pursuant to Article 11(2) of Regulation (EC) No 1225/2009 /* COM/2012/0112 final - 2012/0051 (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 expiry review proceeding concerning the anti-dumping duty in force in respect of imports of tartaric acid originating in the People's Republic of China. 
 ·      General context This proposal is made in the context of the implementation of the basic Regulation and is the result of an investigation which was carried out in line with the substantive and procedural requirements laid out in the basic Regulation. 
 ·      Existing provisions in the area of the proposal The measures currently in force are a definitive anti-dumping duty imposed by Council Regulation (EC) No 130/2006 on imports of tartaric acid originating in the People's Republic of China (OJ L23, 27.1.2006, p.1.), as last amended by Council Regulation (EU) No XX/2012 (OJ LXX, xx.yy.2012, p.x.). 
 ·      Consistency with the 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 foresee 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 26 January 2011, the Commission initiated an expiry review of the anti-dumping measures applicable to imports of tartaric acid originating in the People's Republic of China. The review investigation found continuing dumping of tartaric acid originating in the People's Republic of China, which, if anti-dumping measures were lifted, would result in the recurrence of injury to the Union industry. It was further established that the continuation of measures would not be against the Union interest. It is therefore proposed that the Council adopt the attached proposal for a Regulation in order to prolong the measures currently in force on imports of tartaric acid originating in the People's Republic of China, which should be published in Official Journal of the European Union by the 24th of 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 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 the 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: The above-mentioned basic Regulation does not foresee alternative options. 
 4.           BUDGETARY IMPLICATION 
 The proposal has no implication for the Union budget. 
2012/0051 (NLE)
Proposal for a
COUNCIL REGULATION
imposing a definitive anti-dumping duty on
imports of tartaric acid originating in the People's Republic of China following
an expiry review pursuant to Article 11(2) of Regulation (EC) No 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 Community[1]
(the ‘basic Regulation’), and in particular Article 9(4) and Article 11(2), 11(5)
and 11(6) thereof,
Having regard to the proposal submitted by
the European Commission ('the Commission') after consulting the Advisory
Committee,
Whereas:
A. PROCEDURE
1.           Previous investigations
and measures in force
(1)       By
Regulation (EC) No 130/2006[2] (the ‘original Regulation’), the Council imposed a definitive
anti-dumping duty, ranging from 0% to 34.9%, on imports of tartaric acid ('TA')
originating in the People’s Republic of China ('China'). It is recalled that
the rate of the definitive anti-dumping duty imposed on TA produced by the
Chinese exporting producer Hangzhou Bioking Biochemical Engineering Co., Ltd.
('Hangzhou Bioking') was 0% while it ranged between 4.7% and 34.9% for other
Chinese exporting producers.
(2)       On 22 February 2008,
following a review initiated on the basis of Article 11(3) of the basic
Regulation, the Council by
Regulation (EC) No 150/2008[3] amended the scope of the above mentioned measures.
(3)       On XX April 2012,
following a review of the existing measures on Hangzhou Bioking initiated on
the basis of Article 2(3) of Regulation (EC) No 1515/2001, in light of the WTO
Appellate Body report entitled 'Mexico – Definitive Anti-Dumping Measures on
Beef and Rice[4],
which found in paragraphs 305 and 306 that an exporting producer not found to
be dumping in an original investigation has to be excluded from the scope of
the definitive measure imposed as a result of such investigation and cannot be
made subject to administrative and changed circumstances review, the Council by
Regulation (EU) No XXX/2012[5]
amended the measures regarding Hangzhou Bioking.
(4)       The investigation that led
to the measures imposed by the original Regulation will be hereinafter referred
to as 'the original investigation'.
2.           Request for an expiry
review
(5)       Following the publication
of a notice of impending expiry[6]
of the anti-dumping measures in force, the Commission received on 27 October
2009 a request for the initiation of an expiry review of these measures
pursuant to Article 11(2) of the basic Regulation. The request was lodged by
the following producers ('the applicants'): Distillerie Bonollo SpA, Industria
Chimica Valenzana SpA, Distillerie Mazzari SpA, Caviro Distillerie S.r.l and
Comercial Quimica Sarasa s.l. representing a major proportion, in this case
more than 50%, of the total Union production of TA.
(6)       The request was based on
the grounds that the expiry of the measures imposed on imports of TA
originating in China would be likely to result in a continuation of dumping and
injury to the Union industry.
3.           Initiation of an expiry
review 
(7)       Having determined, after
consulting the Advisory Committee, that sufficient evidence existed for the
initiation of an expiry review, the Commission announced on 26 January 2011 the
initiation of an expiry review pursuant to Article 11(2) of the basic
Regulation, by a notice published in the Official Journal of the European
Union[7],
('notice of initiation'). 
4.           Parallel cases
(8)       The Commission also
announced on 29 July 2011 the initiation of an anti-dumping proceeding[8] pursuant to Article 5 on
imports of TA originating in China, limited to one Chinese exporting producer,
Hangzhou Bioking.
(9)       On the same day, the
Commission announced the initiation of a partial interim review[9] pursuant to Article 11(3) of
the basic Regulation of the anti-dumping measures applicable to imports of TA
originating in China limited to the examination of dumping as far as two
Chinese exporting produces are concerned, namely Changmao Biochemical
Engineering Co., Ltd, Changzhou City, and Ninghai Organic Chemical Factory,
Ninghai.
5.           Investigation
5.1.        Review investigation period
and the period considered
(10)     The investigation of
continuation of dumping covered the period from 1 January 2010 to 31 December
2010 (‘the review investigation period’ or ‘RIP’). The examination of the
trends relevant for the assessment of the likelihood of a continuation or
recurrence of injury covered the period from 1 January 2007 to the end of the
review investigation period (‘the period considered’).
5.2.        Parties concerned by the
investigation
(11)     The Commission officially
advised the applicants, other known Union producers, exporting producers,
importers, users in the Union known to be concerned and their associations, and
the representatives of the exporting country concerned of the initiation of the
expiry review.
(12)     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 of initiation.
(13)     In
view of the apparent large number of exporting producers from China, unrelated importers in the Union and Union producers involved in
the investigation, sampling was envisaged in the notice of initiation, in
accordance with Article 17 of the basic Regulation. In order to enable the
Commission to decide whether sampling would be necessary and, if so, to select
a sample, the above parties were requested, pursuant to Article 17 of the basic
Regulation, to make themselves known within 15 days of the publication of the
notice of initiation and to provide the Commission with the information
requested in the notice of initiation.
(14)     In view of the replies
received it was decided to apply sampling in respect of Union producers. No
unrelated importers in the Union cooperated in the investigation. As regards exporting
producers from China, only two exporting producers manifested their willingness
to cooperate in the investigation. It was therefore decided that sampling was
not necessary as regards exporting producers.
(15)     Six Union producers
provided the information requested in the notice of initiation and agreed to be
included in the sample. On the basis of the information received from these
Union producers, the Commission selected a sample of four Union producers which
were found to be representative of the Union industry in terms of sales volumes
of the like product in the Union. Their combined sales volume represented 61%
of the sales volume in the Union market.
(16)     Questionnaire replies were
received from the four sampled Union producers, two users in the Union, and two
exporting producers in China. In addition, two cooperating Union producers
provided the requested general data for the injury analysis.
(17)     Exports made by Hangzhou
Bioking, whose individual dumping margin in the original investigation was
zero, have been excluded from both dumping and injury analysis, including the
likelihood of continuation of dumping and risk of recurrence of injury
resulting from dumped imports. The analysis in the present review was therefore
based on exports of product concerned from China to the Union during the RIP
excluding the exports made by the producer Hangzhou Bioking and is also
referred to as 'exports subject to measures' in this Regulation.
(18)     The Commission sought and
verified all the information it deemed necessary for a determination of the
likelihood of continuation or recurrence of dumping and resulting injury and
for the determination of the Union interest. Verification visits were carried
out at the premises of the following companies:
(a)              
Union producers:
–     
Comercial Quimica Sarasa S.L.;
–     
Alcoholera Vinícola Europea S.A.;
–     
Distillerie Mazzari S.p.a.;
–     
Distillerie Bonollo S.p.a.;
(b)              
Exporting producers in China:
–     
Changmao Biochemical Engineering Co Ltd;
–     
Ninghai Organical Chemical Factory;
(c)              
Users
–     
Danisco A/S;
–     
Kerry (NL) B.V.;
(d)              
Producer in the analogue country
–     
Tarcol S.A., Argentina.
B.        PRODUCT CONCERNED AND
LIKE PRODUCT
(19)     The product concerned by
this review is the same as the one defined in Regulation (EC) No 150/2008, which
amended the scope of the measures established by the original Regulation as
explained above. Namely, the product concerned is tartaric acid, excluding
D-(-)-tartaric acid with a negative optical rotation of at least 12,0 degrees,
measured in a water solution according to the method described in the European
Pharmacopoeia, originating in China, currently falling within CN code ex 2918
12 00 (TARIC code 2918 12 00 90) (‘the product concerned’)
(20)     The review investigation
confirmed that, as in the original investigation, the product concerned imported
into the Union market and the products manufactured and sold by the exporting
producers on the domestic markets, as well as those manufactured and sold in
the Union by the Union Industry (‘the like product’), have the same basic
physical and chemical characteristics and uses. Therefore, these products are considered
to be like products within the meaning of Article 1(4) of the basic Regulation.
C.        LIKELIHOOD OF
CONTINUATION OF DUMPING
1.           Preliminary remarks
(21)     In accordance with Article
11(2) of the basic Regulation, it was examined whether the expiry of the
existing measures would likely lead to a continuation or recurrence of dumping.
(22)     As mentioned in recital (13),
in view of the potentially large number of exporting producers involved in this
review, sampling was foreseen in the notice of initiation. From the 20 known
exporting producers, only the two companies, both benefiting from market
economy treatment, came forward and agreed to cooperate. These two companies
cover most of the imports of product concerned from China to the Union during
the RIP excluding the exports made by the company Hangzhou Bioking, whose
individual dumping margin in the original investigation was zero.
2.           Dumping of imports during
the RIP
2.1.        Analogue country
(23)     Since China is an economy
in transition and in accordance with the provisions of Article 2(7)(a) of the
basic Regulation, normal value for exporting producers not granted market
economy treatment ('MET') has to be determined on the basis of the price or
constructed value in an appropriate market economy third country ('analogue
country').
(24)     As in the original
investigation, Argentina was proposed as analogue country in the notice of
initiation for the purpose of establishing normal value. Interested parties
were given the opportunity to comment on the appropriateness of this choice.
(25)     One industrial consumer of
tartaric acid highlighted some constraints linked to the choice of Argentina as
analogue market arguing that it should not be the sole benchmark for the
purpose of determining normal value. The party concerned addressed in
particular alleged differences in the production processes between China and
Argentina, the limited amount of annual production as compared to world
production and currency exchange rates fluctuation. However, none of these
arguments were substantiated by any documentary evidence.
(26)     In any event, the different
production processes in Argentina and China and the resulting impact on the
costing and the valuation of the product concerned were already carefully
considered in the original investigation and it was concluded that it did not
alter the comparability of the products that were found to be similar. As the
allegation of the industrial consumer did not bring any new element and its
claims were not substantiated, the argument is rejected. The findings of the
current expiry review, therefore confirm the findings of the original
investigation, i.e. that the differences in production processes did not have
an impact on the comparability of the products.
(27)     The limited size of the
annual production in Argentina as compared to the world market of TA is not a
relevant argument when assessing whether a specific market is suitable to
establish normal value in an analogue market. Indeed, the investigation
confirmed that Argentina is an open and competitive market with at least two
operators. On these grounds, the argument is rejected.
(28)     The argument of significant
currency exchange fluctuation between regions was not substantiated. In
addition, the on spot investigation did not gather any element pointing to any
distortion of currency rates between regions. On these grounds, the argument is
also rejected.
(29)     Therefore, as in the
original investigation, it was concluded that Argentina was an appropriate
analogue country from which normal value will be determined.
(30)     Two
known Argentinean companies were contacted but only one of them agreed to
cooperate, to reply to the questionnaire and to accept a verification visit. Its
figures have been used for the determination of the normal value.
2.2.        Normal value
(31)     For
the two companies granted MET in the original investigation, normal value has
been established based on their respective data. In accordance with Article 2
of the basic Regulation, the Commission examined whether the domestic sales of
tartaric acid to independent customers were representative during the RIP, i.e.
if the sales volume of the product intended for domestic consumption represents
5% or more of their exports of the product concerned to the Union.
(32)     For one company granted
MET, normal value had to be constructed since its domestic sales were not
sufficient to be considered representative as explained in recital (31).
Therefore, the established normal value was calculated using the company's cost
of manufacturing and adding selling, general and administrative costs
('SG&A') and profit achieved on the domestic sale made in the ordinary
course of trade.
(33)     For the other company
granted MET, since the domestic sales were representative and made in the
ordinary course of trade, normal value was established on the prices paid by
independent customers in the exporting country.
(34)     As far as the companies not
granted MET in the original investigation are concerned, pursuant to Article
2(7)(a) of the basic Regulation, normal value was established on the basis of
information collected from the co-operating producer in the analogue country.
(35)     Therefore, the domestic
sales to independent customers in the analogue country were also assessed in
accordance with the criterion defined in Article 2 of the basic Regulation. The
Commission could verify that these sales were made in sufficient quantities and
in the ordinary course of trade and could thus be used to determine normal
value for the companies not granted MET.
2.3.        Export price
(36)     All export sales to the
Union of the co-operating exporting producers were made directly to independent
customers established in the Union. In accordance with Article 2(8) of the
basic Regulation, the export price was established on the basis of the prices
actually paid or payable.
(37)     For the export price of all other producers established in
China, information was taken from imports statistics made available in the database 14-6.
2.4.        Comparison
(38)     The comparison between
normal value and export price was made on an ex-works basis.
(39)     For the purpose of ensuring
a fair comparison between the normal value and the export price of the
co-operating exporting producers, and in accordance with Article 2(10) of the
basic Regulation, due allowance in the form of adjustments was made with regard
to certain differences in transport, insurance, taxes and credit costs which
affected prices and price comparability.
(40)     In order to fairly compare
the ex-works normal value from the analogue country and the export price as
mentioned in recital (37), the CIF export prices were adjusted to ex-works
using data collected during the verification visits.
2.5.        Dumping margin
(41)     As provided for under
Article 2(11) of the basic Regulation, the dumping margin was established on
the basis of a comparison of the weighted average normal value with the
weighted average export price.
(42)     For the co-operating exporting
producers, granted MET in the original investigation this comparison showed
that these companies continued dumping although at a slightly lower level.
(43)     The residual duty
calculated showed a significant level of dumping even higher than in the
original investigation.
3.           Likelihood of continuation
of dumping
(44)     Further to the analysis of
the existence of dumping during the RIP, the likelihood of continuation of
dumping was also investigated.
(45)     In this respect, the
following elements were analysed: the volume and prices of dumped imports from
China, the production capacity and the spare capacity in China, the
attractiveness of the Union market and other third markets.
3.1.        Volume and prices of dumped
imports from China
(46)     After
imposition of definitive measures in January 2006, dumped imports from China
continued to increase, raising from 3.034 metric tonnes ('MT') in 2007 to 3.649
MT in the RIP id est an increase of around 20%. In parallel, market share of
dumped imports from China gained 1.0 percentage points in the period considered
from 12.6 % in 2007 to 13.5% in the RIP.
(47)     In the same period, prices
of dumped imports from China remained relatively stable with an increase of
12.6% between 2007 and 2008 followed by a continued reduction in 2009 and the
RIP, to reach in the latter period the level achieved in 2007.
3.2.        Production capacity and
spare capacity in China
(48)     As
far as the total production capacity of TA in China is concerned, different
sources of information publicly available[10] point
to a production capacity that is largely in excess of demand on the Chinese
domestic market.
(49)     Total production capacity
in China has been assessed at around 25.000 MT, taking into account information
gathered on spot during the investigation and following market researches[11]. The Chinese market is small
when compared to the available capacity in China with an estimated consumption
of 5.000 MT. 
(50)     In addition, there are
strong indications that capacity in China is even higher than 25.000 MT.
Indeed, total capacity of the two co-operating Chinese exporters went up by
more than 200% comparing data for the original IP to the current RIP. The corresponding
spare capacity was of around 20% of total capacity in the RIP.
(51)     Furthermore, information
collected from extracts of the reports mentioned above in recital (48) and
publicly available information show that at least two new producers of tartaric
acid were set up in 2007.
(52)     On
these grounds, it is clear that capacity in China is disproportionate as
compared to domestic consumption, which confirms a clear need for the Chinese
producers to increase their position on export markets.
3.3.        Attractiveness of the Union
market and other third markets
(53)     From the information
gathered at the Chinese cooperating companies, the level of prices to third
countries is in line with the level of prices that they could obtain in the Union
market. As mentioned above, there is an important production overcapacity on
the Chinese domestic market suggesting a strong and natural need to find
alternative markets to absorb this excess in production capacity.
(54)     The
Union market is by far the biggest in the world reaching around 40% of the
world consumption of tartaric acid and is still growing as mentioned in recital
(60). It is also clear, based on information collected during the investigation
that Chinese companies have shown a big interest in developing their presence
on the biggest market in the world and maintaining a significant market share
on the Union market.
4.           Conclusion of the
likelihood of continuation of dumping
(55)     In view of the findings
described above, it can be concluded that significant volumes of imports from
China are still being dumped and that there is a strong likelihood of
continuation of dumping. Given the potential spare capacity in China including
the new producers that appeared on the Chinese market and the fact that the
Union market is the biggest market in the world with attractive level of
prices, it can be concluded that the Chinese exporters are likely to further
increase their exports to the Union at dumped prices should the anti-dumping
measures be allowed to lapse. 
D.        DEFINITION
OF THE UNION INDUSTRY
(56)     During the RIP, the like product was produced by nine
producers in the Union. Of these nine producers, six producers fully cooperated
with the investigation, submitted sampling forms and requested to be included
in the sample. These six producers were found to account for a major
proportion, in this case more than 73%, of the total Union production of the
like product. As mentioned in recital (57) below, 9 producers having provided
the data in the review request, are hereafter referred to as the 'Union
industry' within the meaning of Article 4(1) and Article 5(4) of the basic
Regulation.
(57)     For
the purpose of the injury analysis, the injury indicators have been established
at the following two levels:
–              
the macroeconomic elements (production,
capacity, capacity utilisation, productivity, sales volume, market share,
growth, employment, and magnitude of dumping margins and recovery from the
effects of past dumping) were assessed at the level of the whole Union
production, on the basis of the information collected from the producers that
came forward in the context of the sampling exercise and on an estimation based
on the data from the review request for the other three Union producers, 
–              
the analysis of microeconomic elements (average
unit prices stocks, wages, profitability, return on investments, cash flow,
ability to raise capital and investments) was carried out on the basis of
information provided by the sampled Union producers.
(58)     It
is noted that the Union market for TA is characterised by a relatively small
number of producers, mostly small and medium enterprises located in Italy and
Spain. With the exception of one producer established in Spain, which only
produces TA, all other producers are vertically integrated, with the main
activity being producing alcohol from wine lees, a process for which TA is a
by-product.
E.         SITUATION ON THE UNION
MARKET
1.           Consumption in the Union
market
(59)     Union
consumption was established on the basis of the sales volumes of the Union
industry on the Union market, the Chinese export database and the imports
volumes data for the Union market obtained from Eurostat and, concerning the
other Union producers, from estimation based on the review request.
(60)     Union
consumption of TA increased between 2007 and the RIP by 11 %. In details, the
apparent demand went down from 2007 to 2009 by 15%. However, during the RIP the
Union consumption reached 29.964 tonnes, representing a significant increase of
26 percentage points as compared to the previous year. This increase is
explained by the high price elasticity of the TA. Indeed, when prices are low,
as was the case during the RIP, TA can be used in additional applications as a
substitute for other raw material chemical products such as citric acid and malic,
hence an increase of the total Union consumption.
Table 1
   || 2007 || 2008 || 2009 || RIP 
 Total EU consumption (tonnes) || 26 931 || 25 333 || 22 983 || 29 964 
 Index || 100 || 94 || 85 || 111 
 Source: Questionnaire replies, Chinese export database, Eurostat 
2.           Volume, market share and
prices of imports from China
2.1.        Volume and market share
(61)     The volume of all imports
of the product concerned from China into the Union increased by 45% during the
period considered. It reached 8.495 tonnes in the RIP corresponding to a market
share of 28.4%.
(62)     The volume of imports of TA
from Chinese exporters being subject to anti-dumping measures into the Union increased
by 20% and reached 3.649 tonnes in the RIP corresponding to a market share of
12,2%, up from 11.3% at the beginning of the period considered. The remaining
imports, 4.846 tonnes, were made by a Chinese exporter subject to a 0% and
which also increased its share in total Chinese exports to the Union during the
period considered (+9 percentage points).
Table 2
   || 2007 || 2008 || 2009 || RIP 
 Volume of imports subject to measures from China (tonnes) || 3.035 || 3.042 || 2.945 || 3.649 
  Index=100 || 100 || 100 || 97 || 120 
 Market share of imports subject to measures from China || 11.3% || 12.0% || 12.8% || 12.2% 
  Index=100 || 100 || 106 || 113 || 107 
2.2.        Prices and undercutting
(63)     The following table shows
the development of average CIF EU frontier prices of imports under measures from
China and the relevant average sales prices of the Union industry. 
Table 3
   || 2007 || 2008 || 2009 || RIP 
 Price of Chinese Imports (EUR/tonne) subject to measures || 1.834 || 2.060 || 1.966 || 1.819 
  Index=100 || 100 || 112 || 107 || 99 
 Source: Questionnaire replies, article14.6 Data 
(64)     Average unit selling prices
of Chinese exports subject to measures at CIF level in the RIP reached 1.819 €/MT,
corresponding, over the period considered, to an increase of 20%.
(65)     Concerning the selling
price on the Union market of the TA during the RIP, a comparison was made
between the prices of TA produced and sold by the Union industry and those of
the imports subject to measures from China. The relevant sales prices of the
Union industry were those to independent customers, adjusted where necessary to
an ex-works level, i.e. excluding freight costs in the Union and after
deduction of discounts and rebates. These prices were compared with the sales
prices charged by the afore mentioned Chinese exporting producers net of
discounts and adjusted where necessary to CIF EU frontier with an appropriate
adjustment for the customs clearance costs and post importation costs. The
Union weighted average selling price during the RIP was 2.496 €/MT.
(66)     The comparison on a type by
type basis showed that, during the RIP, imports subject to measures from China of
the product concerned were sold in the Union at prices which significantly undercut
the Union industry’s prices, when expressed as a percentage of the latter, by 32.6
%. 
3.           Imports from other third
countries
(67)     The following table shows
the development of imports from other third countries during the period considered
in terms of volume and market share, as well as the average price of these
imports.
Table 4
   || 2007 || 2008 || 2009 || RIP 
 Volume of imports from other countries (tonne) || 590 || 135 || 156 || 845 
  Index=100 || 100 || 23 || 26 || 143 
 Market share of imports from other third countries || 2.2% || 0.5% || 0.7% || 2.8% 
  Index=100 || 100 || 24 || 31 || 129 
 Price of imports (EUR/tonne) || 2.503 || 2.874 || 2.300 || 2.413 
 Source: Eurostat, 14(6) data base 
(68)     The volume of imports from
other third countries of the TA into the EU increased in the period considered,
by 43% and reached 845 tonnes in the RIP. Prices of these imports are
relatively high and significantly above the respective prices from China and only
slightly below the average level of prices of the Union industry. However, it
can be considered that exports from other third countries were marginal since during
the RIP they represented only a market share of 2.8% despite their steep
increase in percentage terms at the end of the period considered.
4.           Economic situation of the
Union industry
(69)     Pursuant to Article 3(5) of
the basic Regulation, all relevant economic factors and indices having a
bearing on the state of the Union industry during the period considered have
been examined.
4.1.        Preliminary remarks
(70)     In view of the fact that
sampling was used with regard to the Union industry, for the purpose of the injury
analysis, the injury indicators have been established at two levels as
mentioned in Recital (57) above.
4.2.        Macroeconomic elements
(a)         
Production
(71)     The Union production
increased by 5% between 2007 and the RIP. More specifically, it increased by 19
percentage points between 2009 and RIP to around 30.5 thousands MT, following a
sharp decrease between 2007 and 2009 of 14%. Increased production levels have
allowed the Union industry to contain the increase of production costs and had a
positive impact on the overall Union industry profitability.
Table 5
   || 2007 || 2008 || 2009 || RIP 
 Production in volume (tonne) || 29.000 || 27.500 || 25.000 || 30.588 
  Index=100 || 100 || 95 || 86 || 105 
 Source: Questionnaire replies, Review request 
(b)         
Production capacity and capacity utilisation
(72)     The production capacity of
the Union producers decreased by 2% throughout the period considered.
(73)     Capacity utilisation was
63% in 2007 and dropped to 56% in 2009, to reach 68% in the RIP. The lower
utilisation rate in 2009 reflected the negative effects of the crisis. Total capacity
utilisation increased by 8% over the period considered, which contributed to a further
dilution of fixed costs.
Table 6
   || 2007 || 2008 || 2009 || RIP 
 Production Capacity (tonne) || 46.000 || 46.000 || 45.000 || 45.000 
  Index=100 || 100 || 100 || 98 || 98 
 Capacity Utilisation || 63% || 60% || 56% || 68% 
  Index=100 || 100 || 95 || 88 || 108 
 Source: Questionnaire replies, Review request 
(c)         
Sales volume
(74)     The
sales volume of the Union producers to unrelated customers on the Union market
modestly increased in RIP by 1%. First they decreased by 11% between 2007 and
2008, followed by a further decrease by 9% in 2009, to reach almost the same
level at the end of the period considered as the beginning of the period
considered, thus showing wide variations mainly due to the economic crisis of
2008 and 2009.
Table 7
   || 2007 || 2008 || 2009 || RIP 
 Sales to unrelated parties in the Union (tonne) || 20.489 || 18.165 || 16.709 || 20.623 
  Index=100 || 100 || 89 || 82 || 101 
 Source: Questionnaire replies, Review request 
(d)         
Market share
(75)     During the period
considered, the Union producers lost 7.3 percentage points in market share,
which decreased from 76.1% in 2007 to 68.8% in the RIP. This loss of market
share reflects the fact that, despite an increase in consumption, the Union
industry's sales were not able to progress at the same pace in the period
considered but remained somewhat stable.
Table 8
   || 2007 || 2008 || 2009 || RIP 
 Market share of the Union producers || 76.1% || 71.7% || 72.7% || 68.8% 
  Index=100 || 100 || 94 || 95 || 90 
 Source: Questionnaire replies, Review request and Eurostat 
(e)         
Growth
(76)     Between
2007 and the RIP, whilst the Union consumption increased by 11%, the volume of
sales by the Union industry on the Union market remained stable and the Union industry
market share decreased by 10%. It is thus concluded that the Union producers
could not benefit from any growth of the market.
(f)           
Employment
(77)     The
employment level of the Union industry shows a decrease of 28% between 2007 and
the RIP. More specifically, the number of persons employed decreased
significantly from 320 in 2007 and 2008 to 280 in 2009 and 230 in the RIP. The
drop in 2009 is a reflection of the restructuring efforts by a number of Union
producers.
Table 9
   || 2007 || 2008 || 2009 || RIP 
 Employment (persons) || 320 || 320 || 280 || 230 
  Index=100 || 100 || 100 || 88 || 72 
 Source: Questionnaire replies, Review request 
(g)         
Productivity
(78)     Productivity of the Union industry
workforce, measured as output (tonnes) per person employed per year, increased
by 47% in the period considered. This reflects that production increased by 5%,
whilst employment levels decreased by 28% and is an indication of the increased
efficiency by the Union industry. This is particularly obvious in the RIP, when
production increased while the employment level continued to decrease and
productivity was 48 percentage points higher than in 2009.
Table 10
   || 2007 || 2008 || 2009 || RIP 
 Productvity (tonnes per employee) || 90 || 85 || 89 || 132 
  Index=100 || 100 || 94 || 99 || 147 
 Source: Questionnaire replies and Review request 
4.3.        Data relating to the
sampled Union producers
(h)         
Factors affecting sales prices
(79)     The
annual average sales prices of the sampled producers on the Union market to
unrelated customers increased by 8% between 2007 and 2009, however, they
decreased by 6% during the period considered as in the RIP the annual average
sale price reached 2.496 €/tonne from 2.667 €/tonne in 2007. The availability
of calcium tartrate, which is produced out of wine lees and represents 66 % of
total costs of manufacturing of TA, varies according to the quality of the
grape wine harvest. Therefore, favourable or poor climatic conditions have an
effect on the overall supply of calcium tartrate, which in turn has an impact
on the annual averages sales prices. It should be noted that 2007 and 2008 have
not been two favourable years as far as the grape wine harvest is concerned,
which subsequently led to an increase of the costs of raw materials and sales
prices after the production period (as it is a seasonal product, effects
materialise only several months following the harvest period). Conversely, as
2009 has been a good wine harvesting year hence, the annual average sale prices
in the RIP was 14% lower compared to the previous year. 
Table 11
   || 2007 || 2008 || 2009 || RIP 
 Unit price EU market (EUR/tonne) || 2.667 || 2.946 || 2.881 || 2.496 
  Index=100 || 100 || 110 || 108 || 94 
 Source: Questionnaire replies, Review request 
(i)           
Magnitude of dumping margin and recovery from
past dumping
(80)     Given the level of dumping
found in this investigation, no full recovery from the past dumping could be
established and it was considered that the Union industry remains vulnerable to
the injurious effect of any dumped imports in the Union market. It is recalled
that in the original investigation dumping margins of 4.7% and 10.1% were found
for the respective two cooperating Chinese producers being granted MET. The
dumping margin for all other companies is 34.9%. Furthermore, as mentioned in
Recital (7) above, an anti-dumping proceeding limited to one Chinese exporting
producer, Hangzhou Bioking, which is not subject to measures was initiated and it
cannot be excluded that this exporting producer could be found to practice
dumping. In addition, as stated in recitals (48) to (54) above, a likelihood of
continuation of dumping was established mainly based on available excess
production capacity in China and the rather small size of the Chinese domestic
market. As regards recovery from past dumped imports from China, it is
important to recall that after the imposition of definitive measures in January
2006, imports from China subject to measures continue to increase as mentioned
in Recital (46) above. Thus, no actual recovery from the past dumping could be
established and it is considered that the Union industry remains vulnerable to
the injurious effects of any dumped imports in the Union market.
(j)           
Stocks
(81)     Volume of stock remained
stable during the period considered with a modest increase of 2%. More
specifically, it sharply increased by 65% in 2008 as a direct consequence of
the evolution of sales as mentioned in recital (74) above. Between 2008 and the
RIP volume of stock decreased as sales to unrelated parties increased during
the same period.
Table 12
   || 2007 || 2008 || 2009 || RIP 
 Closing stock (tonne) || 863 || 1.428 || 933 || 879 
  Index=100 || 100 || 165 || 108 || 102 
 Source: Questionnaire replies 
(k)         
Wages
(82)     The average labour cost increased
by 19% during the period considered despite the labour cost reducing efforts of
the sampled producers in particular with regard to unskilled workers, as
reflected in the reduction of the overall workforce mentioned in Recital (77)
above.
Table 12
   || 2007 || 2008 || 2009 || RIP 
 Average Wage (€) || 28.686 || 31.871 || 31.574 || 34.245 
  Index=100 || 100 || 111 || 110 || 119 
 Source: Questionnaire replies 
(l)           
Profitability and return on investments
(83)     During the period
considered, the profitability of the sampled producers' sales of the like
product on the Union market to unrelated customers, expressed as a percentage
of net sales, increased by more than 6 percentage points. More specifically,
the situation with regard to profitability of the sampled producers dropped by
3.7 percentage points between 2007 and 2008 to a level of 7.7%, which was
considered to be below the target profit and increased in 2009 and the RIP to
reach 17.6%.
(84)     The return on investments
(ROI), expressed as the profit in percent of the net book value of investments,
broadly followed the profitability trend. It decreased from a level of 36.4 %
in 2007 to 21.9 % in 2008. It increased to 44.4 % in 2009 and increased again
in the RIP to 142.9 %. Overall, the return on investments remained very
positive over the period considered.
Table 13
   || 2007 || 2008 || 2009 || RIP 
 Profitability of EU (% of net sales) || 11.4% || 7.7% || 12.5% || 17.6% 
  Index=100 || 100 || 67 || 109 || 153 
 ROI (profit in % of net book value of investments) || 36.4% || 21.9% || 44.4% || 142.9% 
  Index=100 || 100 || 60 || 122 || 393 
 Source: Questionnaire replies 
(m)       
Cash flow and and ability to raise capital
(85)     The net cash flow from
operating activities was positive at € 4,6 million in 2007. It dropped to € 1,8
million in 2008 and improved significantly until the end of the period
considered to reach a level of € 6,8 million in the RIP. Overall, cash flow has
been constantly positive in the period considered.
(86)     There were no indications
that the Union industry encountered difficulties in raising capital, mainly due
to the fact that, as mentioned in Recital (58) above, most of the sampled producers
are integrated companies.
Table 14
   || 2007 || 2008 || 2009 || RIP 
 Cash Flow (EUR) || 4.691.458 || 1.841.705 || 4.706.092 || 6.802.164 
  Index=100 || 100 || 39 || 100 || 145 
 Source: Questionnaire replies 
(n)         
Investments
(87)     The sampled producers'
annual investments in the production of the like product decreased by 23%
between 2007 and the RIP. More specifically, it increased by 5% between 2007
and 2008 and then it further increased by 32 percentage points in 2009. The
sharp drop in investments observed between 2009 and the RIP (- 60 percentage
points) can be partially explained by the fact that investigated companies had
already during the period considered achieved their necessary scheduled main
investments.
Table 15
   || 2007 || 2008 || 2009 || RIP 
 Net investments (EUR) || 2.518.189 || 2.632.013 || 3.461.990 || 1.943.290 
  Index=100 || 100 || 105 || 137 || 77 
 Source: Questionnaire replies 
5.           Conclusion on the
situation of the Union industry
(88)     The analysis of the
macroeconomic data shows that the Union industry increased its production and
sales during the period considered. However, the observed increase which was
not significant as such, should be seen in the context of increased demand
between 2007 and the RIP, which resulted in the Union producers’ market share
dropping by 7,3 percentage points to 68.8 %.
(89)     At the same time the
relevant microeconomic indicators show an improvement regarding the economic
situation of the Union industry. The profitability and return on investment
remained positive and the cash flow also remained positive in the RIP.
(90)     In the light of the
foregoing, it is concluded that the Union industry has not suffered material
injury within the meaning of Article 3(5) of the basic Regulation. However, the
overall absence of material injury during the RIP should be considered in the
light of other important injury indicators, which developed negatively during
the period considered, in particular sales prices, loss of market share and
employment. Therefore, the situation of the Union industry is considered to be still
vulnerable and in some aspects, far from the levels that could be expected had
it recovered fully from the injury found in the original investigation.
F. LIKELIHOOD OF RECURRENCE OF
INJURY
1.           Impact of the projected
volume of imports and price effects in case of repeal of measures
(91)     As concluded in recitals (48)
to (52) above, the exporting producers in China have considerable spare
capacities and a clear potential to increase their export volumes to the Union
market significantly including re-directing exports from other markets.
(92)     The CIF export prices to
the Union of TA practiced by the Chinese exporters currently subject to
measures were significantly lower than the prices of the Union industry in the
RIP and on a type by type basis undercut it by 32.6%.
(93)     An analysis of Chinese
exports[12]
of TA to the rest of the world after the RIP shows that their volume was
decreasing significantly, from 10.862 MT in the RIP to 8.118 MT at the end of
July 2011 (-25%). This decrease in Chinese exports volume of 2.744 tonnes to
other makets could create an additional flow of Chinese exports towards the
Union market.
(94)     Considering existing spare
capacities for TA in China, combined with the attractiveness of the Union
market as mentioned above, exporters in China would in all likelihood try to
increase their market shares in the Union thereby materially injurying the
Union industry. Consequently, in the absence
of anti-dumping duties on imports of TA originating in China, any increased
volumes of dumped imports from China would exercise an even stronger price
pressure on the Union industry and cause material injury.
(95)     As mentioned in Recital (79)
climatic / harvest related conditions partly play a role in the overall financial
situation of the Union industry. It is recalled that the TA, used also by wine
producers, can be obtained either from the by-products of wine making or, as is
the case of Chinese exporters, via chemical synthesis, from petrochemical or
coal related compounds such as benzene. 
(96)     Consequently, it should be
further noted that there are no significant constraints in production volumes
for Chinese production given their synthetic production methods, unlike the Union
industry producers using natural raw materials - wine lees.
(97)     Given that the
profitability of the Union industry is in part dependent on climatic
conditions, it appears that the good profitability achieved in the RIP cannot
be considered as lasting. Indeed, even during the period considered, the Union
industry was not always able to achieve its target profit of 8%. Moreover, in
the six month period following the end of the RIP, the Union industry's profitability
already fell significantly to around 3% with the industry again finding itself
in a vulnerable position.
2.           Conclusion on the likelihood
of recurrence of injury
(98)     On this basis, it is
concluded that the repeal of the measures would in all likelihood result in an
increase of dumped exports originating in China resulting in a downwards
pressure on Union industry prices and a worsening of the economic situation of
the Union industry. It is therefore concluded that the repeal of measures
against China would in all likelihood result in the recurrence of injury to the
Union industry.
G.
UNION INTEREST
1.           Introduction
(99)     In compliance with Article
21 of the basic Regulation, it was examined whether maintenance of the existing
anti-dumping measures against China would be against the interest of the Union
as a whole. The determination of the Union interest was based on an
appreciation of all the various interests involved. All interested parties were
given the opportunity to make their views known pursuant to Article 21(2) of
the basic Regulation. 
(100)   It should be recalled that,
in the original investigation, the adoption of measures was considered not to
be against the interest of the Union. Furthermore, the fact that the present
investigation is a review, thus analysing a situation in which anti-dumping
measures have already been in place, allows the assessment of any undue
negative impact on the parties concerned by the current anti-dumping measures.
(101)   On this basis, it was
examined whether, despite the conclusions on the likelihood of recurrence of
injurious dumping, compelling reasons existed which would lead to the
conclusion that it is not in the Union interest to maintain measures against
imports originating in China.
2.           Interest of the Union
industry and other Union producers
(102)   The Union industry has
proven to be in general a viable industry. This was confirmed by the positive
development of its economic situation observed during the period considered
partly due to its restructuring efforts and the measures in place. In
particular, the Union industry improved its cost structure and profit situation
and production volume along the period considered.
(103)   It can reasonably be
expected that the Union industry will continue to benefit from the measures to
be maintained. Should the measures against imports originating in China not be
maintained, it is likely that the Union industry will again suffer material injury
from substantial volumes of dumped imports from China, causing a serious deterioration
of its financial situation. Indeed, there is a clear likelihood of injurious
dumping in substantial volumes which the Union industry could not withstand.
The Union industry would therefore continue to benefit from the maintenance of
the current anti-dumping measures.
(104)   Accordingly, it is concluded
that the maintenance of anti-dumping measures against China would clearly be in
the interest of the Union industry.
3.           Interest of importers
(105)   It is recalled that in the
previous investigations it was found that the impact of the imposition of
measures would not be significant. No traders / importers cooperated in the
current investigation. Bearing in mind
that there is no evidence suggesting that the measures in force considerably
affected importers, it is concluded that the continuation of measures will not
affect the Union importers to any significant extent.
4.           Interest
of users
(106)   TA
is mainly used in the wine and food industry as a food and beverage additive,
and in the construction industry as a retardant in the production of gypsum.
(107)   All
known users have been contacted in this investigation.
(108)   There was no cooperation
from users from the construction industry. As established in the original
investigation, TA represents less than 2% of the costs of the gypsum products
where it is used. Therefore it was concluded that the continuation of the measures
would have a negligible influence on the costs and the competitive position of
the construction industry.
(109)   Two major importers / users
from the food sector cooperated fully in the proceeding. It could be determined
that both companies were profitable, including their product lines using the
product concerned as one of the raw materials. Besides sales of products
manufactured using the product concerned represented only a minor percentage of
their total turnover. Thus it can be concluded that the continuation of the
measures would not unduly affect the users of the food industry. Moreover for
these users the existence of diverse supply sources for the product concerned
was quite important.
5.           Conclusion on Union
interest
(110)   Taking into account all of
the factors outlined above, it is concluded that there are no compelling
reasons against the maintenance of the current anti-dumping measures.
H. ANTI-DUMPING MEASURES
(111)   All parties were informed of
the essential facts and considerations on the basis of which it is intended to
recommend that the existing measures be maintained on imports of the product
concerned originating in China. They were also granted a period to make
representations subsequent to this disclosure.
(112)   A user from the construction
sector claimed that the extension of the measures in force would cause a
shortage of the product concerned, might increase their production costs and
thus result in increased prices of their finished products. No evidence was
submitted to support these claims. Therefore, due to the lack of justification
of the claims along with the lack of cooperation from users from the
construction sector, it was not possible to verify these claims.
(113)   The two users from the food
sector that cooperated in the investigation claimed that the impact of the
continuation of the measures on the food industry had not been sufficiently
considered, and one of them requested a hearing with the Hearing Officer.
(114)   During the hearing, this
user did not disagree with the conclusion that the continuation of the measures
would overall not negatively affect the profitability of the company as a whole
but claimed that the impact on the profitability of the specific production
line using the product concerned, which represents only a minor percentage of
the total turnover, would be in their view significant. It also claimed that
domestic prices for tartaric acid had considerably increased after the review
investigation period and that these price levels would again significantly
reduce their product profitability. Nevertheless this user did not deny that
the price increase was a result of a lack of raw material supply on the Union
market whose level fluctuates regularly depending on the wine harvest and cannot
therefore be considered as lasting nor being caused by the anti-dumping
measures in force. 
(115)   The other cooperating user,
during a hearing with the investigation team, argued against the extension of
the measures with arguments of similar nature. Therefore,
these arguments were similarly rejected (see the previous recital)
(116)   A cooperating Chinese
exporting producer argued that the Union industry could not be considered as
still being vulnerable, that the essential cause influencing the Union industry
situation was closely associated with climatic conditions and that, in
consequence, it was against the continuation of the measures. These claims were
not supported by evidence and hence could not be accepted. Furthermore, they
were not of a nature as to change the findings as to the situation of the Union
industry. 
(117)   Finally the Union industry,
in consideration of its profitability figures during the period considered,
justified that the closure in mid 2008 of the sole French producer had, in the
short run, diminished the quantity of product concerned available in the
domestic market, thus temporarily increasing sales prices and, accordingly, increasing
their profitability. The Union industry argued that given these circumstances,
these changes could not in any case be considered as been of a lasting nature.
Thus, the findings as regard the situation of the Union industry remain
unchanged.
(118)   In summary, after having
considered all the comments submitted following disclosure to interested
parties of the conclusions of the investigation, it was considered that none of
them was of such a nature as to change the conclusions reached during the investigation.
(119)   It follows from the above
that, as provided for by Article 11(2) of the basic Regulation, the
anti-dumping measures applicable to imports of tartaric acid originating in
China should be maintained for an additional period of five years.
HAS ADOPTED THIS REGULATION:
Article 1
1.           A
definitive anti-dumping duty is hereby imposed on imports of tartaric acid, excluding D-(-)-tartaric acid with a negative optical
rotation of at least 12,0 degrees, measured in a water solution according to
the method described in the European Pharmacopoeia, currently falling within CN
code ex 2918 12 00 (TARIC code 2918 12 00 90) and originating in 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,for the products manufactured by the
companies listed below shall be as follows:
 Company || Anti-Dumping Duty || TARIC Additional Code 
 Changmao Biochemical Engineering Co., Ltd, Changzou City, People’s Republic of China. || 10.1% || A688 
 Ninghai Organic Chemical Factory, Ninghai, People’s Republic of China. || 4.7% || A689 
 All other companies (except Hangzhou Bioking Biochemical Engineering Co. Ltd, Hangzhou City, People’s Republic of China – TARIC additional code A687). || 34.9% || A999 
3.           The application of the
individual duty rates specified for the companies mentioned in paragraph 2
shall be conditional upon presentation to the customs authorities of the Member
States of a valid commercial invoice, which shall conform to the requirements
set out in the Annex. If no such invoice is presented, the duty rate applicable
to all other companies shall apply.
4.           Unless
otherwise specified, the provisions in force concerning customs duties shall
apply.
Article 2
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(3) 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 tartaric acid sold for export to the European Union
covered by this invoice was manufactured by (entity 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 23, 27.1.2006, p. 1.
[3]               OJ L 48, 22.2.2008, p. 1.
[4]               WT/DS295/AB/R, 29 November 2005.
[5]               OJ L XX, XX.XX.XXX, p. X
[6]               OJ C 211, 4.8.2010, p. 11.
[7]               OJ C 24, 26.1.2011, p. 14.
[8]               OJ C 223, 29.7.2011, p. 11.
[9]               OJ C 223, 29.7.2011, p. 16.
[10]          Like the "Chemical Economic Handbook 'CEH', or reports from CCM
International LTD
[11]             Like the "Chemical Economic Handbook 'CEH',
or reports from CCM International LTD
[12]             Source: Chinese exports database