CELEX: 52008PC0701
Language: en
Date: 2008-11-06
Title: Proposal for a Council Regulation (EC) no …/.. imposing a definitive anti-dumping duty and collecting definitely the provisional duties imposed on imports of citric acid originating in the People's Republic of China

EN
EN    EN
 ---pagebreak---                    COMMISSION OF THE EUROPEAN COMMUNITIES
                                                      Brussels, 6.11.2008
                                                      COM(2008) 701 final
                                         Proposal for a
                          COUNCIL REGULATION (EC) No …/..
   imposing a definitive anti-dumping duty and collecting definitely the provisional duties
      imposed on imports of citric acid originating in the People's Republic of China
                                (presented by the Commission)
EN                                                                                          EN
 ---pagebreak---                              EXPLANATORY MEMORANDUM
   1.    CONTEXT OF THE PROPOSAL
       • Grounds for and objectives of the proposal
   110
       This proposal concerns the application of Council Regulation (EC) No 384/96 of 22
       December 1995 on protection against dumped imports from countries not members of
       the European Community, as last amended by Council Regulation (EC) No 2117/2005
       of 23 December 2005 (the 'basic Regulation') in the proceeding concerning imports of
       citric acid originating in the People's Republic of China.
       • General context
   120
       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
   139
       There are no existing provisions in the area of the proposal.
       • Consistency with other policies and objectives of the Union
   141
       Not applicable.
   2.    CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT
       • Consultation of interested parties
   219
       Interested parties concerned by the proceeding have already had the possibility to
       defend their interests during the investigation, in line with the provisions of the basic
       Regulation.
       • Collection and use of expertise
   229
       There was no need for external expertise.
       • Impact assessment
   230
       This proposal is the result of the implementation of the basic Regulation.
       The basic Regulation does not foresee a general impact assessment but the requirement
       that the measures should not be contrary to the "Community interest" means that the
       assessment of the wider impact of the measures forms an integral part of the
       investigation.
   3.    LEGAL ELEMENTS OF THE PROPOSAL
       • Summary of the proposed action
   305
EN                                              2                                                EN
 ---pagebreak---        On 4 September 2007, the Commission announced by a notice ('notice of initiation'),
       published in the Official Journal of the European Union, the initiation of an anti-
       dumping proceeding concerning imports into the Community of citric acid originating
       in the People's Republic of China.
       The anti-dumping proceeding was initiated following a complaint lodged on 23 July
       2007 by European Chemical Industry Council (CEFIC) on behalf of a Community
       producer representing a major proportion of the Community production of citric acid
       containing evidence of dumping and of material injury resulting there from.
       On 3 June 2008, the Commission imposed, by Regulation (EC) No 488/2008, a
       provisional anti-dumping duty on imports into the Community of citric acid originating
       in the People's Republic of China.
       The enclosed Commission proposal for a Council Regulation contains the definitive
       conclusions regarding dumping, injury, causality and Community interest.
       Member States were consulted during the Anti-Dumping Committee of 14 October
       2008. 12 Member States were in favour of the proposed course of action, 5 opposed
       and 10 abstained.
       It is proposed that the Council adopt the attached proposal for a Regulation which
       should be published in the Official Journal of the European Union by 3 December 2008
       at the latest.
       • Legal basis
   310
       Council Regulation (EC) No 384/96 of 22 December 1995 on protection against
       dumped imports from countries not members of the European Community, as last
       amended by Council Regulation (EC) No 2117/2005 of 23 December 2005.
       • Subsidiarity principle
   329
       The proposal falls under the exclusive competence of the Community. The subsidiarity
       principle therefore does not apply.
       • Proportionality principle
       The proposal complies with the proportionality principle for the following reason(s).
   331
       The form of action is described in the above-mentioned basic Regulation and leaves no
       scope for national decision.
   332
       Indication of how financial and administrative burden falling upon the Community,
       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
   341
       Proposed instruments: regulation.
EN                                             3                                                EN
 ---pagebreak---    342
       Other means would not be adequate for the following reason(s).
       The above-mentioned basic Regulation does not foresee alternative options.
   4.   BUDGETARY IMPLICATION
   409
       The proposal has no implication for the Community budget.
EN                                            4                                   EN
 ---pagebreak---                                                 Proposal for a
                               COUNCIL REGULATION (EC) No …/..
     imposing a definitive anti-dumping duty and collecting definitely the provisional duties
        imposed on imports of citric acid originating in the People's Republic of China
   THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty establishing the European Community,
   Having regard to Council Regulation (EC) No 384/96 of 22 December 1995 on protection
   against dumped imports from countries not members of the European Community1 (the basic
   Regulation) and in particular Article 9 thereof,
   Having regard to the proposal submitted by the Commission after consulting the Advisory
   Committee,
   Whereas:
                                      A. PROVISIONAL MEASURES
   (1)    On 4 September 2007, the Commission published a notice2 initiating an anti-dumping
          proceeding on imports into the Community of citric acid originating in the People's
          Republic of China ('the PRC'). On 3 June 2008, the Commission, by Regulation (EC)
          No 488/20083 ('the provisional Regulation) imposed a provisional anti-dumping duty
          on imports of citric acid originating in the PRC.
   (2)    It is noted that the proceeding was initiated following a complaint lodged by the
          European Chemical Industry Council (CEFIC) (‘the complainant’) on behalf of a
          producer representing a major proportion of the total Community production of citric
          acid, in this case more than 25 %.
   (3)    As set out in recital (14) of the provisional Regulation, the investigation of dumping
          and injury covered the period from 1 July 2006 to 30 June 2007 ('investigation period'
          or 'IP'). With respect to the trends relevant for the injury assessment, the Commission
          analysed data covering the period from 1 January 2004 to the end of the IP ('period
          considered').
                                    B. SUBSEQUENT PROCEDURE
   1
           OJ L 56, 6.3.1996, p. 1. Regulation as last amended by Regulation (EC) No 2117/2005 (OJ L 340,
           23.12.2005, p. 17).
   2
           OJ C 205, 4.9.2007, p. 14.
   3
           OJ L143, 3.6.2008, p.13.
EN                                                      5                                                 EN
 ---pagebreak---    (4) Following the imposition of provisional anti-dumping duties on imports of citric acid
       originating in the PRC, several interested parties submitted comments in writing. The
       parties who so requested were also granted the opportunity to be heard.
   (5) The Commission continued to seek and verify all information it deemed necessary for
       its definitive findings. In particular, the Commission intensified the investigation with
       regard to Community interest aspects. In this connection, one additional verification
       visit was carried out after the imposition of the provisional measures at the premises of
       the following user of citric acid in the EU:
         –     Reckitt-Benckiser Corporate Services Ltd, Slough, UK and Nowy Dwor,
               Poland
         In addition, as explained in detail in recital (11) below, verification visits were
         carried out at the premises of the following exporting producers:
         –     Laiwu Taihe Biochemistry Co. Ltd. ("Laiwu Taihe"), Laiwu City, Shandong
               Province
         –     Weifang Ensign Industry Co. Ltd. ("Weifang Ensign"), Changle City,
               Shandong Province
   (6) 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 citric acid originating in the PRC and the definitive collection of the
       amounts secured by way of the provisional duty. They were also granted a period
       within which they could make representations subsequent to this disclosure.
   (7) The oral and written comments submitted by the interested parties were considered
       and, where appropriate, the findings were modified accordingly.
                               C. INITIATION OF THE CASE,
                     PRODUCT CONCERNED AND LIKE PRODUCT
   (8) One exporting producer reiterated the claim that the public version of the complaint
       did not contain any prima facie evidence of material injury to the Community industry,
       preventing the interested parties from exercising their rights of defence. According to
       this exporting producer the case should not have been initiated due to lack of sufficient
       evidence included in the complaint. In this respect, it should be noted that the public
       version of the complaint contained all the essential evidence and non-confidential
       summaries of data provided under confidential cover in order for interested parties to
       exercise their right of defence throughout the proceeding. Therefore, this argument
       should be rejected.
   (9) Some interested parties argued that the product concerned, as set out in recital (16) of
       the provisional Regulation, and the like product are not alike as stated in recital (18) of
       the provisional Regulation since they would not share the same physical and chemical
       characteristics and are not used for the same purposes. According to those interested
       parties the statement in recital (18) of the provisional Regulation fails to address the
       arguments brought forward during the investigation and is in contradiction with the
       adjustment made by the Commission in the undercutting calculations for de-caking
       certain quantities of the product concerned after arrival in the EU. It is firstly noted
EN                                               6                                                 EN
 ---pagebreak---         that the investigation has shown that the product concerned and the like product are
        both used in the same basic applications, i.e. mainly for the household cleaning (auto
        dish wash products, detergents, water softeners) and as additives in food and
        beverages, but also in the personal care/cosmetics area. The claim that the product
        concerned would in fact not be used by certain users in the detergents, food and
        beverages industry because of its smell and/or colour was not further substantiated by
        evidence. The investigation has shown that only in one niche application, i.e. the
        pharmaceutical area, only the European citric acid was indeed used because of the cost
        of the special compliance test which is required. Since the pharmaceutical area
        represents only a small portion of the users' total business, running the compliance test
        was not considered as economically justifiable business decision. Secondly, there is no
        contradiction between the adjustment made in the undercutting calculation for de-
        caking parts of the product concerned after importation as mentioned in recital (64) of
        the provisional Regulation and the statement that both products are alike as it is
        sufficient that the product concerned and the like product share the same basic
        chemical, physical and technical characteristics and have the same basic uses which is
        the case. It is further noted that the caking as such does not happen because of specific
        characteristics of the Chinese product, but happens because every citric acid,
        regardless of its origin, due to its chemical composition shows a tendency to cake
        when being exposed to humidity and changes of temperature. As naturally only the
        product concerned is exposed over a longer period of time to humidity and changes of
        temperature during the shipping time to the EU, the problem mainly occurs for the
        product concerned, but not exclusively. Therefore, the adjustment simply takes
        account of the fact that the de-caking incurs additional costs mainly for the product
        concerned as the quantities that are affected by the caking either are de-caked (by
        breaking and sieving or liquefying the caked product) before further selling or are sold
        with a rebate. Thus, this claim should be rejected.
   (10) In view of the above, it is definitively concluded that the product concerned and citric
        acid produced and sold in the analogue country, Canada, as well as the one produced
        and sold by the Community industry on the Community market are alike, within the
        meaning of Article 1(4) of the basic Regulation and recitals (15) to (17) of the
        provisional Regulation are hereby confirmed.
                                           D. DUMPING
          1.    General
   (11) At the provisional stage of the investigation the Market Economy Treatment
        ("MET")/Individual Treatment ("IT") claims of all known exporting producers were
        investigated. Only a number of the exporting producers had been included in the
        sample and one company was granted individual examination. In their comments to
        the provisional Regulation a number of parties have claimed that this approach has
        some shortcomings. The matter was therefore reconsidered and, in view also of the
        fact that it became possible given the circumstances of the case such as for example
        the available resources to increase the number of companies that could reasonably be
        investigated, it was finally decided that sampling should not be applied. Given that
        every cooperating company has been granted at least IT at the provisional stage, an
        individual duty rate should be established for each of them. As a consequence, three
        companies not selected in the sample or individually examined at the provisional stage
        were requested to submit questionnaire replies. However, only two of these companies
EN                                                7                                               EN
 ---pagebreak---         submitted a questionnaire reply. The third company did not submit a questionnaire
        reply and was not investigated further.
          2. Market Economy Treatment ("MET")
   (12) The company referred to in recital (27) of the provisional Regulation insisted that the
        subsidy mentioned in that recital was not for the purposes of the product concerned
        and that the non-payment of rents was justified by private inter-group arrangements
        for the setting off of profits against rent due. However, in the absence of any new
        elements or information concerning the issue, and in view of the distorting effects on
        the accounting of the practices mentioned concerning rent, the conclusions in respect
        of this company remain unchanged and are hereby confirmed.
   (13) Further to provisional disclosure one group of companies referred to in recital (25) of
        the provisional Regulation claimed that it had received loans on the basis of a detailed
        financial analysis of one of the banks and after having been granted a high credit
        rating. However, the fact that a bank formally carried out an analysis and granted a
        high credit rating does not eliminate the fact that the company in question gave
        guarantees to other companies despite having mortgaged the majority of its non-
        current assets, nor the fact that the loans granted to the company in question were
        granted by a bank found to be under State influence. Therefore, the conclusions in
        respect of this company remain unchanged and are confirmed.
   (14) One of the companies referred to in recital (26) of the provisional Regulation insisted
        that it was penalized for the fact that its majority shareholder had acquired land use
        rights for a good price and then correctly had them re-valued according to market price
        developments. However, the enormous difference between the acquisition price and
        later evaluations (1000-2000%) could not be explained. Therefore, in the absence of
        any new elements or information concerning the acquisition and subsequent
        revaluation of the land use rights and in view of the advantages that the company
        received by obtaining assets for prices significantly below market value, the
        conclusions in respect of this company remain unchanged and are confirmed.
   (15) In the absence of any other comments concerning MET, recitals (25) to (30) of the
        provisional Regulation are hereby confirmed.
          3. Individual treatment (‘IT’)
   (16) Five companies or groups of companies that were not granted MET fulfilled all the
        criteria set out in Article 9(5) of the basic Regulation and were granted IT. One
        company which had been granted provisionally IT, failed to further cooperate and,
        thus, no IT was finally granted (see recitals (11) and (34).
          4. Normal value
   (17) As explained in recital (11) above, following comments to the provisional Regulation,
        it was decided that sampling should not be applied and the three companies not
        selected in the sample or individually examined at the provisional stage were
        requested to submit questionnaire replies. Normal value was established for one of
        these companies (Laiwu Taihe), which was granted MET and which submitted a
        questionnaire reply.
EN                                              8                                                EN
 ---pagebreak---           4.1. Companies or groups of companies which could be granted MET
   (18) Since the sole company which could be granted MET and which was examined
        individually at the provisional stage of the investigation did not submit any comments
        on normal value, the findings at recitals (35) to (39) of the provisional Regulation are
        hereby confirmed.
   (19) As for the only other company which was granted MET (Laiwu Taihe) and which was
        further investigated for the reasons explained at recital (11) above, it was first verified
        whether the company's total domestic sales of the like product were representative
        within the meaning of Article 2(2) of the basic Regulation. Domestic sales of the
        product concerned were slightly below 5% of the exports of the like product to the
        Community. However, such lower ratio is nonetheless of sufficient magnitude to
        provide for a proper comparison and the domestic prices of the like product are
        considered representative given also the overall domestic sales of the company in
        question. Therefore, they were used to determine normal value.
   (20) For each product type sold for export to the Community by Laiwu Taihe, it was
        established whether a directly comparable product type was sold on the domestic
        market. Product types were considered to be directly comparable when they were of
        the same product type (defined by the chemical composition), comparable granulation
        and packing. It was established that for only one product type sold for export to the
        Community a directly comparable product type was sold on the domestic market.
   (21) It was subsequently examined whether the domestic sales of this product type could be
        regarded as being sold in the ordinary course of trade pursuant to Article 2(4) of the
        basic Regulation. It was established that there were profitable domestic sales of this
        product type to independent customers during the IP, and therefore in the ordinary
        course of trade.
   (22) Since the volume of profitable sales of this product type represented 80% or less of the
        total sales volume of that type, normal value was based on the actual domestic price,
        calculated as a weighted average of profitable sales of that type only.
   (23) As domestic prices of Laiwu Taihe could not be used in order to establish normal
        value for the other product types, normal value was constructed in accordance with
        Article 2(3) of the basic Regulation.
   (24) When constructing normal value pursuant to Article 2(3) of the basic Regulation, the
        amounts for selling, general and administrative costs and for profits have been based,
        pursuant to Article 2(6) first introductory subparagraph of the basic Regulation, on the
        actual data pertaining to the production and sales, in the ordinary course of trade, of
        the like product, by the Laiwu Taihe.
          4.2. Companies or groups of companies which could not be granted MET
   (25) In their comments to the provisional Regulation, some parties claimed that Canada
        would not be an appropriate analogue country given the fact that the USA have
        recently initiated an anti-dumping proceeding against citric acid originating inter alia
        in Canada. Thailand was therefore again brought forward as an alternative analogue
        country. However, the analysis showed that while anti-dumping measures on citric
EN                                               9                                                  EN
 ---pagebreak---         acid originating in Canada were not in force during the IP, anti-dumping measures
        were in force during the IP on citric acid originating in Thailand. The latter measures
        were imposed by India and consisted in substantial anti-dumping duties of
        USD 374.36/tonne, which only expired in August 2007, i.e. two months after the end
        of the IP. Therefore, also considering the arguments already mentioned at recitals (42)
        to (43) of the provisional Regulation and the fact that the US investigation on citric
        acid originating in Canada was still ongoing at the moment of finalising this
        investigation, it is concluded that there is no reason why Thailand should be preferred
        to Canada as an analogue country.
   (26) According to Article 2(7)(a) of the basic Regulation, normal value for the exporting
        producers mentioned in recital (11) above that were not granted MET had to be
        established on the basis of the prices or constructed value in the analogue country.
          5.    Export Price
   (27) In the case of the two companies which were further investigated for the reasons
        explained at recital (11) above, the export price was established following the same
        methodology explained at recital (45) to (47) of the provisional Regulation.
   (28) Since no companies submitted any comments on export prices, the findings contained
        in Recitals (45) to (47) of the provisional Regulation are hereby confirmed.
          6.    Comparison
   (29) In its comments to the provisional Regulation and to the definitive disclosure, one
        group of companies contested the deduction of a notional commission for sales via a
        trader in the PRC, given that the trader was an integral part of the group. It was,
        however, established that the trading company did indeed perform the function of an
        independent trader, and that the economic result of the relationship of the two
        companies is that of a principal and an agent. It was established that the trader was not
        only trading products produced by related companies, but also products produced by
        independent producers. Moreover, the company in question did also sell directly to
        non-related customers. Therefore, the claim was rejected, and pursuant to Article
        2(10)(i) of the basic Regulation, an allowance based on SG&A and profit of unrelated
        importers was deducted.
   (30) In its comments to the provisional Regulation, one exporting producer claimed that
        cost for currency conversion should not be taken into account, as pursuant to Article
        2(10)(j) of the basic Regulation, exporters shall be granted 60 days to reflect a
        sustained movement in exchange rates during the investigation period. This claim
        could be accepted, and the dumping margin of the exporting producer was adjusted
        accordingly.
   (31) In the provisional Regulation, a deduction to the export price was made in respect of
        non-refundable VAT charged on export sales, pursuant to Article 2(10)(b) of the basic
        Regulation. One exporting producer claimed in its comments to the provisional
        Regulation that no such adjustment to the export price should have been made, as
        Article 2(10)(b) of the basic Regulation would only relate to normal value. It is
        acknowledged that the adjustment provided for under Article 2(10)(b) of the basic
        Regulation only refers to the calculation of the normal value. In fact the above-
EN                                               10                                               EN
 ---pagebreak---         mentioned deduction to the export price is due and should be done pursuant to Article
        2(10)(k) of the basic Regulation. While examining this claim, it was found that a
        clerical error had been made in calculating the adjustment for the company in
        question, and that the same error had been made in respect of other companies. These
        inaccuracies were rectified and have led to slight downward corrections in the
        dumping margins previously calculated for these companies.
   (32) In examining the claim referred to in the previous recital, it was found that the
        necessary adjustment had not been made in the case of one company which was
        granted individual treatment. This has been rectified and results in a slight increase in
        the dumping margin for that company.
   (33) In the absence of any other comments in respect of comparison, and apart from the
        changes indicated at recitals (30), (31) and (32) above, recitals (48) to (50) of the
        provisional Regulation are hereby confirmed.
          7.    Dumping margin
   (34) In the case of the two companies which were further investigated for the reasons
        explained at recital (11) above, the dumping margin was established by following the
        same methodology explained at recital (51) of the provisional Regulation. In the case
        of the one company which did not submit a questionnaire reply and was not further
        investigated, as explained at recital (11) above, this company is considered as non-
        cooperating and findings are based on facts available in accordance with Article 18(1)
        of the basic Regulation. In this case, considering the high level of cooperation
        mentioned at recital (19) of the provisional Regulation, the company has been
        attributed the highest dumping margin found in respect of all other companies.
   (35) The dumping margins of all the companies which had already been individually
        investigated at the provisional stage were recalculated, to correct the inaccuracies
        referred to at recitals (30), (31) and (32) above. This recalculation has lead to slight
        corrections of the dumping margins.
   (36) In the absence of any new element, the conclusions in recital (53) of the provisional
        Regulation, which relates to the level of cooperation, are hereby confirmed.
   (37) On this basis, the definitive dumping margins expressed as a percentage of the CIF
        Community frontier price, duty unpaid, are:
                                                                                   Definitive
                                       Company
                                                                               dumping margin
         Anhui BBCA Biochemical Co., Ltd                                            58,1 %
         DSM Citric Acid (Wuxi) Ltd                                                 19,1 %
         RZBC Co. Ltd                                                               59,8 %
         RZBC (Juxian) Co. Ltd                                                      59,8 %
EN                                              11                                                EN
 ---pagebreak---          TTCA Co., Ltd                                                              57,1 %
         Yixing Union Biochemical Co. Ltd                                           55,7 %
         Laiwu Taihe Biochemistry Co. Ltd                                            6,6 %
         Weifang Ensign Industry Co. Ltd                                            53,5 %
         All other companies                                                        59,8 %
                                         E.      INJURY
          1.    Community production and Community industry
   (38) Some interested parties claimed that S.A. Citrique Belge N.V. ceased production after
        the IP and was only trading the product concerned imported from its related company
        in China (DSM Wuxi), arguing, thus that Citrique Belge should not constitute part of
        the Community industry. This claim was however not substantiated by any evidence
        and from the data submitted by Citrique Belge, it follows that the company continued
        production.
   (39) One interested party also complained that in recital 56 of the provisional Regulation
        only a range of imports of Citrique Belge from its related Chinese producer during the
        IP was given. This party claimed that the trend of all imports of the Community
        industry from related and unrelated companies should be given for the whole period
        considered since imports constitute an important factor for the assessment of
        community production and consequently for the conclusion of the existence of injury.
        The investigation has indeed shown that during the whole period considered the
        imports of the Community industry were insignificant, i.e. between 1% and 6% of
        production – this range is given for confidentiality reasons. Therefore the argument
        should be rejected and recitals (55) to (58) of the provisional Regulation are hereby
        definitively confirmed.
          2.    Community consumption
   (40) As no new and substantiated information was received with regard to Community
        consumption recitals (59) and (60) of the provisional Regulation are hereby confirmed.
          3.    Imports from the country concerned
          (a) Volume and market share of the imports concerned, import prices
   (41) With regard to import volumes, market share and prices, no new and substantiated
        information was found or received, therefore, and in the absence of any claims or
        arguments from any interested parties relating to volume and prices of the imports
        concerned, recitals (61) to (63) of the provisional Regulation are hereby confirmed.
          (b) Price undercutting
   (42) During the provisional stage of the investigation, in order to compare the product
        concerned and the citric acid produced by the Community industry at the same level of
EN                                               12                                            EN
 ---pagebreak---         trade, an adjustment for the mark-up (including SG&A) of unrelated importers was
        made in the price undercutting calculation and, additionally, an adjustment was made
        for special treatment costs incurred by importers in the Community to de-cake certain
        volumes of the product concerned before further selling. However, due to a minor
        revision of the data concerning the level of trade adjustment, the weighted average
        price undercutting margin which was calculated and found to be 17,42% has been
        revised downwards to 16,54%.
   (43) After final disclosure, one Community producer claimed that the level of trade
        adjustments should also be made in relation to sales of the Community industry, i.e.
        that its sales made via traders should be taken into account. In this respect it should be
        noted that a level of trade adjustment was made indeed for the Community industry's
        sales prices before comparing them with the import prices of the product concerned.
   (44) The same Community producer also requested that the adjustment for special
        treatment costs to de-cake certain volumes of the product concerned should also apply
        to the like product. However, this request was not further substantiated with data
        concerning the specific costs incurred by this Community producer and, thus, it could
        not be accepted. In view of the above, recital (64) of the provisional Regulation is
        hereby confirmed.
          4. Situation of the Community industry
          (a) General
   (45) Some interested parties claimed that the Commission had not analysed thoroughly all
        injury indicators and thus, no proper and complete link between the situation of the
        Community industry and the Chinese imports was established. In particular, it was
        claimed that there had been no assessment of the positive developments of certain
        injury indicators. It should be noted that even though some injury indicators show a
        positive development which was acknowledged in recital (79) of the provisional
        Regulation, the overall picture points to a deterioration of the situation of the
        Community industry. The moderate improvement of production, production capacity,
        capacity utilisation, sales volume and unit price levels as well as the increased cost
        efficiency described in recital (76) of the provisional Regulation reflect the efforts of
        the Community producers to remain competitive over the period considered and to
        benefit from the increased consumption. However, as can be seen in recital (68) of the
        provisional Regulation, despite these efforts the Community industry lost 5 percentage
        points (i.e. the market share decreased from 54% to 49%) of its market share which
        was mostly taken by Chinese low-priced, dumped imports. As an aggravating factor, it
        is also mentioned that the Community industry could have expected to gain some of
        the market share hold by those three Community producers of citric acid which closed
        down as of 2004. But on the contrary, the Community industry could neither take over
        customers from the three closed EC-producers, nor benefit from the increased
        consumption. This significant loss of market share coupled with the clearly
        deteriorating financial indicators, i.e. profitability, return on investment and cash flow,
        show that the overall situation of the Community industry deteriorated over the period
        considered and appeared to be at its worst during the IP. In addition, stocks' decrease
        can not be assessed as a positive development of the Community industry's situation in
        this case since is can not be considered as a meaningful indicator, given the nature of
        the product which does not allow long-term storage.
EN                                                13                                                EN
 ---pagebreak---           (b) Investments and ability to raise capital
   (46) One interested party argued that investments are not constant in this field but follow
        certain investments cycles. While even under normal market conditions it can certainly
        not be expected that important investments would be made every year, the fact that
        over the whole period neither of the two remaining Community producers carried out
        any important investment is considered as a sign that the low profitability (which
        turned into loss as of 2006) did not allow any important investment to be made. It is
        hence considered that investment is a particularly meaningful injury indicator in this
        case.
   (47) Finally, the Community producers' ability to raise capital should be considered. In this
        regard the investigation has shown that both Community producers, due to the
        deteriorating citric acid business environment, had difficulties to raise capital.
   (48) One interested party claimed that the complainant was at least able to raise capital for
        other products since it announced in February 2007 the construction of a new glucose
        plant. In this respect it is noted that the scope of the investigation is limited to the
        ability to raise capital in relation to the product in question, i.e. citric acid, which
        appeared to have been negatively affected by the financial situation of the Community
        industry.
   (49) Based on the above, the conclusion set out in recital (72) of the provisional Regulation
        on the Community industry's investment is confirmed.
          (c) Profitability and return on investment
   (50) One interested party claimed that the findings set out in recital (73) of the provisional
        Regulation could not be reconciled with the accounts of both Community producers in
        particular none of the accounts would show the mentioned extraordinary restructuring
        cost. In this respect, it is noted that, throughout the period considered, the
        extraordinary result of one Community producer has to a large extent been affected by
        restructuring efforts, which was presented in the accounts either as a cost or a revenue
        depending on whether it concerns the addition or the release of a provision and by
        royalties paid to the mother company in Switzerland. Therefore, it was deemed more
        appropriate to use the operating result as a basis for the injury analysis rather than the
        net profit.
   (51) The same party claimed that the fine for anti-competitive behaviour that was imposed
        in 2005 on both mother companies of the Community producers could have influenced
        the profit situation of the Community industry. Any effects stemming from the fine
        (both the adding and releasing of provisions) have been recorded under extraordinary
        result. As mentioned in the previous recital, the operating result has been used as an
        injury indicator in this proceeding. Therefore, the fine that was imposed on the
        Community producers, could not have affected the profit situation used in the injury
        analysis. In addition, it should be noted that Community industry was loss making as
        of 2006 until the end of IP. Therefore, the trends as presented in the provisional
        Regulation are hereby definitively confirmed.
   (52) Several interested parties pointed to some inconsistency between the trend concerning
        profitability and the return on investment. Indeed, in contrast to profitability which
EN                                              14                                                 EN
 ---pagebreak---         was established by expressing the operating profit on sales of the like product to
        unrelated customers as a percentage of the turnover of these sales, return on
        investment was calculated as the net profit in percentage of net book value of
        investments. In order to be consistent in the calculation of all injury indicators, the
        calculation of return on investment was revised, based on the operating profit in
        percentage of the net book value of investments. The revised figures are as follows:
                                       2004           2005             2006             IP
             Return on total            100            148             -147            -207
          investments (index)
   (53) The corrected figures however follow the same trend and therefore do not alter the
        conclusion drawn in recital 74 of the provisional Regulation, which is hereby
        confirmed.
          5. Conclusion on injury
   (54) In the absence of any new and substantiated information or argument concerning
        production, sales volume, market shares, unit sales price, stocks, cash flow,
        employment, productivity, wages and magnitude of the dumping margin, the findings
        in recitals (66) to (71), (73) and (75) to (78) of the provisional Regulation are hereby
        definitely confirmed. In addition, the corrected figures given for return on investment
        leave unaffected the trends as set out in recital (73) to (74) of the provisional
        Regulation. Therefore, considering the clearly deteriorating financial indicators, such
        as profitability, return on investment and cash flow coupled with the significant loss of
        market share, the conclusion laid down in recital 81 of the provisional Regulation that
        that the Community industry suffered material injury is definitively confirmed.
                                       F.     CAUSATION
          1. Effect of the dumped imports
   (55) As mentioned in recital (42) above, it is definitively concluded that during the IP, the
        average prices of imports from the PRC undercut the average Community industry
        prices. Following a minor revision in the calculations, the average undercutting margin
        was found to be 16,54%. This slight downwards revision cannot affect the conclusions
        on the effect of the dumped imports set out in recitals (83) to (85) of the provisional
        Regulation, which are hereby confirmed.
          2. Effect of other factors
          (a) Self-inflicted injury
   (56) Some importers claimed that the Community industry self-inflicted the injury as it
        followed a 'price-over-volume' strategy, i.e. to serve only the high-end segment of the
        market, abstaining from producing and selling the low-end product. According to the
        same importers the consequence was that the Community industry could not benefit
        from the increased demand of low-end citric acid, and thereby lost market share and
        deteriorated its financial performance. The investigation however showed that both,
        the product concerned and the like product are basically used in the same applications
        and compete mainly in the same segments (see recital (9), with the exception of one
EN                                              15                                                EN
 ---pagebreak---         niche market representing a small portion of the European citric acid market share,
        which was supplied so far solely by the Community industry. The investigation has
        indeed established that the Community industry was present in the low-end segment of
        the market. Therefore, this argument should be rejected.
   (57) Moreover, some interested parties considered the lack of any investment during the
        period considered and in particular during the years when the Community industry
        achieved better results, i.e. 2004-2005, as a factor which contributed to the market
        share loss and consequently to the deterioration of its situation. The investigation
        showed the Community industry did not operate at full capacity and that its capacity
        utilisation was stable throughout the period considered. Therefore, some production
        increase would have been possible in case of stronger demand without further
        investments. Moreover, given that the profitability of the Community industry was
        insufficient, i.e. below target profit, throughout the period considered and even turned
        into negative, it is considered to be an economically justifiable business decision not to
        invest significant amounts in the production of the like product. This argument is
        therefore not convincing and should be rejected.
          (b)     Rise in the costs of raw materials, rising energy prices
   (58) Almost all interested parties reiterated their claims that any injury found would be due
        to the reform of the sugar market and the consequent abolition of the production
        refunds in 2006 and/or the rising energy prices.
   (59) One interested party claimed that in the annual report of one Community producer
        relating to 2007, it was stated that the raw material availability was limited due to the
        European sugar regime which resulted in higher cost. In this respect, it is noted that
        the mentioned Community producer does not use sugar as main raw material, but
        molasses and as explained in recital (89) of the provisional Regulation was thus never
        subject to production refunds. The cost increase for molasses was however not
        substantial, but corresponding to the increase of world market prices for sugar. As
        concerns the situation of the other Community producer which was described in detail
        in recitals (90) to (94) of the provisional Regulation, no new or substantiated
        information or argument was received. The overall conclusion laid down in recital (93)
        that the reform of the sugar market had no considerable impact on the cost situation of
        the Community industry is hereby confirmed.
   (60) The same interested party claimed that there would indeed be a link between sugar
        prices and biofuel production as this was acknowledged in a study of the Commission
        on "The causes of the Food Price Crisis"4. In this respect it is noted that the
        Commission, as already stated in recital (98) of the provisional Regulation, had access
        to the cost data of both Community producers and was therefore in a position to
        analyse the concrete cost of raw materials for both Community producers concerning
        the production of citric acid. Any link between sugar prices and biofuel production has
        therefore been investigated and taken into account in assessing the impact of EU sugar
        market reform and the increasing biofuel production. Based on this, it could be
   4
        European Commission "The Causes of the Food Price Crisis: Sugar", 20 May 2008,
        http://ec.europa.eu/agriculture/analysis/perspevct/foodprice/sugar_en.pdf.
EN                                                     16                                          EN
 ---pagebreak---         concluded and is hereby definitively confirmed that these factors had no considerable
        impact on the injury found and suffered by the Community industry.
   (61) In addition, it has to be stated that any cost increase concerning molasses, sugar or
        glucose or energy which was acknowledged in the provisional Regulation (see recitals
        (93) and (96)) are not the source of the injury of the Community industry as in a
        normal market situation, the Community industry could have passed on these
        increased costs at least to a certain extent to its customers. However, the investigation
        showed the increasing presence of dumped imports which undercut the prices of the
        Community industry significantly. Thus, as stated in recital (84) of the provisional
        Regulation there was a price depression and the Community industry could only pass
        on a fraction of its own cost increases to its customers, which led to the deterioration
        of its financial situation and a further loss of market share.
   (62) Finally, it has to be mentioned that the investigation has shown that the Chinese costs
        of production of citric acid had also increased. These increased costs were however
        not translated into higher sales prices, but on the contrary, unit sales prices even
        decreased by 6 percentage points during the period considered as shown in recital (63)
        of the provisional Regulation.
   (63) On the basis of the above, the claims should be rejected and recitals (88) to (99) are
        hereby definitively confirmed.
          (c)    Price cartel of Community industry
   (64) Some interested parties reiterated their claims that the loss of market share for the
        European producers was self-inflicted because of the citric acid cartel (1991-1995) in
        which both the complainant and the other European producer participated and which
        was claimed to be the reason of the boost of Chinese citric acid imports. This
        allegation was not further substantiated and, therefore, did not alter the conclusion
        drawn in recital (100) of the provisional Regulation that the big boost of the dumped
        imports happened several years after the cartel ceased to exist.
   (65) On the basis of the above, it is definitively concluded that the consequences of the
        anti-competitive practices in which the Community industry took part did not
        contribute to the material injury suffered by the Community industry.
          (d)    Currency fluctuations
   (66) Some interested parties reiterated their claims that the drop in prices of Chinese citric
        acid during the IP was largely due to the unfavourable exchange rate from the USD to
        EUR, the fact that prices for citric acid are generally expressed in USD on world
        markets and the difficulty to adjust prices, which are generally negotiated annually, to
        the new currency situation.
   (67) It is recalled that in recital (104) of the provisional Regulation, the impact of any
        currency fluctuation is considered to be not significant because even if the devaluation
        of the USD against the EUR between 2004 and the IP which amounted to 4,97%, after
        a fine-tuning of provisional calculations, would have been fully disregarded there
        would still be undercutting of over 10%.
EN                                                17                                              EN
 ---pagebreak---    (68) Consequently, it is definitively confirmed that the appreciation of the Euro in respect
        of the USD was not such as to break the causal link between the established injury to
        the Community industry and the imports concerned and the claim should, therefore, be
        rejected.
          3.    Conclusion on causation
   (69) In the absence of any further new and substantiated information or argument, recitals
        (82) to (110) of the provisional Regulation are hereby confirmed.
   (70) In the light of the above, the provisional finding of existence of causal link between
        the material injury suffered by the Community industry and the dumped Chinese
        imports is confirmed.
                              G.      COMMUNITY INTEREST
          1.    Developments after the investigation period
   (71) Comments relating to the need to take into consideration certain important post-IP
        developments have been received both from certain Community industry producers as
        well as from the cooperating exporting producers and importers. It is noted that in
        accordance with Article 6(1) of the basic Regulation, information concerning dumping
        and injury relating to a period subsequent to the investigation period shall, normally,
        not be taken into account. However, in view of the statement made in recitals (119)
        and (129) of the provisional Regulation, it was exceptionally considered necessary to
        collect data and information related to the period after June 2007 until July 2008.
   (72) Some interested parties claimed that the imposition of measures would be unnecessary
        as the profitability of the Community industry attained high levels post-IP due to
        significantly increased prices and that the market had regulated itself. During the IP,
        there was evidence of dumping and injury and this injury was caused to a significant
        degree by the price depression stemming from the dumped imports. Import statistics
        show an average increase of Chinese sales prices of only 12 % after the IP. Compared
        to the undercutting level of 16,54% found during the IP, this increase is clearly not
        sufficient as it would not allow the Community industry to increase its sales price to a
        sustainable level without risking to lose more customers in the absence of anti-
        dumping measures. Concerning the price level of the Community industry, it was
        found that the Community industry managed to increase its prices moderately as of the
        first quarter of 2008 which appeared to have improved the financial situation of the
        Community industry. These price increases are, nevertheless, in a close timely
        correlation with the initiation of this proceeding and it thus appears that the situation
        of the Community industry may have improved because of the potential anti-dumping
        measures on imports from the PRC. It was hence concluded that there was no self-
        regulation of the market, or the self-regulation was insufficient to render the
        imposition of measures unnecessary. The argument should be thus rejected.
          2.    Interest of the Community industry
   (73) In the absence of any new and substantiated information or argument with regard to
        the interest of the Community industry, the conclusion made in recitals (112) to (115)
EN                                              18                                                EN
 ---pagebreak---         of the provisional Regulation regarding the interest of the Community industry are
        hereby confirmed.
          3. Competition and security of supply
   (74) Most interested parties reiterated their claim that the imposition of measures would
        significantly reduce competition in the European market and create a duopolistic
        market situation. It is considered, however, that in view of the strong market position
        that the Chinese exporting producers obtained over the last years, the imposition of
        measures would not drive them out of the Community market, but merely restore a
        level playing field allowing the Community industry and the Chinese exporting
        producers to compete on equal terms. Moreover, a reasonable price increase on the
        Community market could indeed attract more imports from other third countries with
        own production, such as Israel and South America which were likely less interested in
        exporting to a market with depressed prices.
   (75) On the other hand, should anti-dumping measures not be imposed, it cannot be
        excluded that the Community industry would have to cease its manufacturing
        activities for this particular business, leading to the opposite scenario, i.e. a dominant
        position of the Chinese imports.
   (76) Most interested parties also claimed that should Chinese imports stop due to the
        imposition of measures the security of supply would be at stake because the
        Community industry cannot satisfy the demand on the EU market even if both
        producers would produce at 100% of their capacity. This would be aggravated by the
        fact that the demand of citric acid is predicted to even increase with the effects of
        Regulation 648/2004 of the European Parliament and of the Council on detergents
        ("detergent Regulation")5. In this Regulation, the Commission undertakes to conduct a
        review regarding the use of phosphates in detergents and based on the results, to
        submit a proposal for appropriate action. Following this obligation, the Commission
        submitted a report, but did not propose any action yet. However, even if phosphates
        would be completely banned from the detergents' industry, their main substitutes are
        zeolites and to a smaller extent only citric acid.
   (77) Furthermore, several facts contradict the assumption that Chinese imports would
        indeed stop.
          –     Import statistics showed that the Chinese imports increased by 17 % during the
                twelve months following the IP, whereas after the imposition of provisional
                measures they remained at a substantial level, appearing sufficient to guarantee
                the security of supply in the EU.
          –     The investigation showed some overcapacity of some exporting producers in
                China which is an indication that Chinese imports in the EU market will not
                stop, in particular if the USA would impose measures against PRC, in the
                framework of the US anti-dumping investigation.
   (78) In addition, the Community industry announced to take appropriate measures in order
        to increase its production capacity. The complainant announced to increase its
   5
        OJ L 104, 8.4.2004, p. 1-35.
EN                                                19                                               EN
 ---pagebreak---         production capacity significantly. According to the press release issued in July 2008,
        those additional capacities should be fully available as of mid 2009 with the first
        increase already available in January 2009. This should indeed contribute to satisfy the
        demand in the EU. It is further noted that the other Community producer announced in
        August 2008, that it would close its production site in China by the first quarter of
        2009 and that it will focus on its production site in the Community.
   (79) Moreover, a more attractive price level in the EU market would probably also increase
        imports from third countries and with those alternative sources, supply appears to be
        better secured as if users would only depend on Chinese citric acid. During the 12
        months following the IP, imports from Israel for example have increased by 30%.
   (80) It therefore appears that the imposition of measures would not drive the Chinese
        exporting producers out of the market, but would rather restore a level playing field
        which secures alternative sources of supply.
          3.    Interest of unrelated importers
   (81) Some interested parties claimed that due to sampling, the Commission only received
        the results for the largest importers in Europe, thus lacking information of the effects
        of duties on the overwhelming majority of small and medium sized importers.
        However, no party raised any objection against the selected sample and, therefore, the
        sample is considered to be representative for all importers.
   (82) Given that citric acid, on average, constitutes only 1% of the importers' total revenue,
        it is expected that the effects of an anti-dumping duty will be diluted in the companies'
        overall results.
   (83) In the absence of any further comments from importers, the conclusions made in
        recitals (116) to (120) of the provisional Regulation are hereby confirmed.
          4.    Interest of users
   (84) After the provisional stage, the Commission intensified the investigation as regards the
        possible impact of measures on users. To this end, additional information was
        requested from the users and national associations and an additional verification visit
        was carried out at one Community user's premises.
   (85) The information received confirms the provisional finding, based on users'
        questionnaire incomplete responses as mentioned in recitals (121) to (122) of the
        provisional Regulation, that the effect of citric acid in the total cost of production of
        the users is relatively moderate. While the share of citric acid in the users' cost of
        production naturally depends on the product, it was found to range generally between
        less than 1% and 20%. The additional information mentioned above has also
        confirmed the provisional findings that a duty at the level of the underselling margin
        would have a very limited effect on the cost of production of the cooperating users.
        After the definitive disclosure, two of the main industrial users of citric acid argued
        that citric acid represents a high proportion in certain of their products and, thus, the
        effect of the duties would be significant for them. Firstly, it should be noted that both
        users produce a wide range of products in which citric acid is used in different
        proportions. Secondly, based on the data submitted, it could not be proved that those
EN                                               20                                               EN
 ---pagebreak---         users sold predominantly those products in which the cost of citric acid were more
        important. Finally, the argument was not further substantiated by any additional data.
        Therefore, this argument could not be accepted.
          5.     Conclusion on Community interest
   (86) The above additional analysis concerning the interest of the importers and the users in
        the Community has not altered the provisional conclusions in this respect. Even if in
        certain cases the burden would need to be fully borne by the importer/user, any
        negative financial impact on the latter would in any event be not significant. On this
        basis, it is considered that the conclusions regarding the Community interest as set out
        in the provisional Regulation are not altered. In the absence of any other comments,
        they are therefore definitively confirmed.
                                 H. DEFINITIVE MEASURES
          1. Injury elimination level
   (87) Several interested parties contested the profit margin level provisionally used and
        claimed the 9% profit is excessive, arguing that the Community industry during the
        period considered never actually achieved this profit level. It is acknowledged that
        indeed only one Community producer achieved this profit level in the absence of
        dumping, i.e. in 2001, whereas the other did not. The methodology used to determine
        the injury elimination level was thus re-examined and it was deemed more appropriate
        to use as profit margin the weighted average profit margin that was achieved by both
        European producers in 2001, i.e. 6%.
   (88) On the basis of the above, it is concluded that the Community industry could
        reasonably expect to achieve a pre-tax profit margin of 6% in the absence of dumped
        imports and this profit margin was used in the definitive findings.
   (89) The Chinese import prices were compared, for the IP, with the non-injurious price of
        the like product sold by the Community industry on the Community market. The non-
        injurious price has been obtained by adjusting the sales price of the Community
        industry in order to reflect the profit margin, as now revised. The difference resulting
        from this comparison, when expressed as a percentage of the total CIF value,
        amounted to a range from 8,3% to 42,7 % for each company, i.e. less than the
        dumping margin found, except for one company.
          2.     Definitive measures
   (90) In view of the conclusions reached with regard to dumping, injury, causation and
        Community interest, and in accordance with Article 9(4) of the basic Regulation, a
        definitive anti-dumping duty should be imposed at the level of the lowest of the
        dumping and injury margins found, in accordance with the lesser duty rule. In all but
        one case, the duty rate should accordingly be set at the level of the injury found.
   (91) On the basis of the above, the definitive duties should be as follows:
                       Exporting producer                     Proposed anti-dumping duty
EN                                               21                                              EN
 ---pagebreak---          Anhui BBCA Biochemical Co., Ltd                                           35,7 %
         DSM Citric Acid (Wuxi) Ltd                                                 8,3 %
         RZBC Co.                                                                  36,8 %
         RZBC (Juxian) Co. Ltd.                                                    36,8 %
         TTCA Co., Ltd                                                             42,7 %
         Yixing Union Biochemical                                                  32,6 %
         Laiwu Taihe Biochemistry Co. Ltd                                           6,6 %
         Weifang Ensign Industry Co. Ltd                                           33,8 %
         All other companies                                                       42,7 %
          3.    Form of the measures
   (92) During the course of the investigation, six exporting producers in the PRC offered
        acceptable price undertakings in accordance with Article 8(1) of the basic Regulation.
   (93) The Commission, by Decision [INSERT]6, accepted these undertaking offers. The
        Council recognises that the undertaking offers eliminate the injurious effect of
        dumping and limits to a sufficient degree the risk of circumvention.
   (94) To further enable the Commission and the customs authorities to effectively monitor
        the compliance of the companies with the undertakings, when the request for release
        for free circulation is presented to the relevant customs authority, exemption from the
        anti-dumping duty is to be conditional on (i) the presentation of an undertaking
        invoice, which is a commercial invoice containing at least the elements listed and the
        declaration stipulated in the Annex; (ii) the fact that imported goods are manufactured,
        shipped and invoiced directly by the said companies to the first independent customer
        in the Community; and (iii) the fact that the goods declared and presented to customs
        correspond precisely to the description on the undertaking invoice. Where the above
        conditions are not met the appropriate anti-dumping duty shall be incurred at the time
        of acceptance of the declaration for release into free circulation.
   (95) Whenever the Commission withdraws, pursuant to Article 8(9) of the basic
        Regulation, its acceptance of an undertaking following a breach by referring to
        particular transactions and declares the relevant undertaking invoices as invalid, a
        customs debt shall be incurred at the time of acceptance of the declaration for release
        into free circulation of these transactions.
   (96) Importers should be aware that a customs debt may be incurred, as a normal trade risk,
        at the time of acceptance of the declaration for release into free circulation as
        described in recitals [INSERT] and [INSERT] even if an undertaking offered by the
   6
EN                                               22                                              EN
 ---pagebreak---           manufacturer from whom they were buying, directly or indirectly, had been accepted
          by the Commission.
   (97)   Pursuant to Article 14(7) of the basic Regulation, customs authorities should inform
          the Commission immediately whenever indications of a violation of the undertaking
          are found.
   (98)   For the reasons stated above, the undertakings offered by the exporting producers are
          therefore considered acceptable by the Commission and the companies concerned
          have been informed of the essential facts, considerations and obligations upon which
          acceptance is based.
   (99)   In the event of a breach or withdrawal of the undertakings, or in case of withdrawal of
          acceptance of the undertakings by the Commission, the anti-dumping duty which has
          been imposed by the Council in accordance with Article 9(4) shall automatically apply
          by means of Article 8(9) of the basic Regulation.
                I. DEFINITIVE COLLECTION OF THE PROVISIONAL DUTY
   (100) In view of the magnitude of the dumping margin found and given the level of the
          injury caused to the Community industry, it is considered necessary that the amounts
          secured by way of provisional anti-dumping duty imposed by the provisional
          Regulation should be definitively collected to the extent of the amount of definitive
          duties imposed. As the definitive duty rates are lower than the provisional duty rates,
          amounts provisionally secured in excess of the definitive rate of anti-dumping duty
          should be released,
   HAS ADOPTED THIS REGULATION:
                                               Article 1
   1.       A definitive anti-dumping duty is hereby imposed on imports of citric acid and of
            trisodium citrate dihydrate falling within CN codes 2918 14 00 and ex 2918 15 00
            (TARIC code 2918 15 00 10) and originating in the People's Republic of China.
   2.       The rate of the definitive anti-dumping duty applicable to the net, free-at-
            Community-frontier price, before duty, of the products described in paragraph 1 and
            produced by the companies below shall be as follows:
                                                                          Anti-         TARIC
                                                                       Dumping        Additional
    Company                                                             duty (%)         Code
    Anhui BBCA Biochemical Co., Ltd - N° 73, Daqing Road,                  35,7          A874
    Bengbu City 233010, Anhui Province, PRC
    DSM Citric Acid (Wuxi) Ltd - West Side of Jincheng Bridge,              8,3          A875
    Wuxi 214024, Jiangsu province, PRC
    RZBC Co., Ltd - N° 9 Xinghai West Road, Rizhao, Shandong               36,8          A876
    Province, PRC
EN                                                23                                              EN
 ---pagebreak---     RZBC (Juxian) Co. Ltd, West Wing, Chenyang North Road, Ju               36,8            A877
    County, Rizhao, Shandong Province, PRC
    TTCA Co., Ltd. – West, Wenhe Bridge North, Anqiu City,                  42,7            A878
    Shandong Province, PRC
    Yixing Union Biochemical Co., Ltd – Economic Development                32,6            A879
    Zone Yixing City 214203, Jiangsu Province, PRC
    Laiwu Taihe Biochemistry Co. Ltd, No. 106 Luzhong Large                  6,6            A880
    East Street, Laiwu, Shandong Province, PRC
    Weifang Ensign Industry Co. Ltd, The West End, Limin Road,              33,8            A882
    Changle City, Shandong Province, PRC
    All other companies                                                     42,7            A999
   3.       Notwithstanding the first paragraph, the definitive anti-dumping duty shall not apply
            to imports released for free circulation in accordance with Article 2.
   4.       Unless otherwise specified, the provisions in force concerning customs duties shall
            apply.
                                                Article 2
   1.       Imports declared for release into free circulation which are invoiced by companies
            from which undertakings are accepted by the Commission and whose names are
            listed in the Commission Decision [2008/…./EC], as from time to time amended,
            shall be exempt from the anti-dumping duty imposed by Article 1, on condition that:
            –     they are manufactured, shipped and invoiced directly by the said companies to
                  the first independent customer in the Community; and
            –     such imports are accompanied by an undertaking invoice which is a
                  commercial invoice containing at least the elements and the declaration
                  stipulated in the Annex of this Regulation; and
            –     the goods declared and presented to customs correspond precisely to the
                  description on the undertaking invoice.
   2.       A customs debt shall be incurred at the time of acceptance of the declaration for
            release into free circulation:
            –     whenever it is established, in respect of imports described in paragraph 1, that
                  one or more of the conditions listed in that paragraph are not fulfilled; or
EN                                                 24                                              EN
 ---pagebreak---              –    when the Commission withdraws its acceptance of the undertaking pursuant to
                  Article 8(9) of the basic Regulation in a Regulation or Decision which refers to
                  particular transactions and declares the relevant undertaking invoices as
                  invalid.
                                               Article 3
   The amounts secured by way of provisional anti-dumping duty pursuant to Commission
   Regulation (EC) No 488/2008 on imports of citric acid originating in the People's Republic of
   China shall be definitively collected at the rate of the definitive duty imposed pursuant to
   Article 1. The amounts secured in excess of the amount of the definitive duty shall be
   released.
                                               Article 4
   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
                                                 […]
EN                                                 25                                              EN
 ---pagebreak---                                                ANNEX
   The following elements shall be indicated in the commercial invoice accompanying the
   companies' sales to the Community of goods which are subject to the undertaking:
   1.      The heading "COMMERCIAL INVOICE ACCOMPANYING GOODS SUBJECT
           TO AN UNDERTAKING"
   2.      The name of the company issuing the commercial invoice
   3.      The commercial invoice number
   4.      The date of issue of the commercial invoice
   5.      The TARIC additional code under which the goods on the invoice are to be customs-
           cleared at the Community frontier
   6.      The exact description of the goods, including:
           –      the product code number (PCN) used for the purpose of the undertaking
           –      plain language description of the goods corresponding to the PCN concerned
           –      the company product code number (CPC)
           –      Taric code
           –      quantity (to be given in tonnes)
   7.      The description of the terms of the sale, including:
           –      price per tonnes
           –      the applicable payment terms
           –      the applicable delivery terms
           –      total discounts and rebates
   8.      Name of the company acting as an importer in the Community to which the
           commercial invoice accompanying goods subject to an undertaking is issued directly
           by the company
   9.      The name of the official of the company that has issued the commercial invoice and
           the following signed declaration:
           “I, the undersigned, certify that the sale for direct export to the European Community
           of the goods covered by this invoice is being made within the scope and under the
           terms of the Undertaking offered by [COMPANY], and accepted by the European
           Commission through [Decision 2008/XXXX/EC]. I declare that the information
           provided in this invoice is complete and correct.”
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