CELEX: 51995PC0326
Language: en
Date: 1995-07-06
Title: Proposal for a COUNCIL REGULATION (EC) repealing Regulation (EEC) No 1391/91 imposing a definitive anti-dumping duty on imports of aspartame originating in Japan and the United States of America

COMMISSION OF THE EUROPEAN COMMUNITIES
                                                Brussels, 6.07.1995
                                                COM(95)326 final
                                 Proposal for a
                       COUNCIL REGULATION (EC)
repealing Regulation (EEC) No 1391/91 imposing a definitive anti-dumping duty on
   imports of aspartame originating in Japan and the United States of America
                        (presented by the Commission)
 ---pagebreak---  ---pagebreak---                             Explanatory memorandum
1. By Regulation (EEC) No 1391/91 *, the Council imposed a definitive anti-dumping
   duty on imports of aspartame originating in Japan and the United States of
   America.
2. Further to a request submitted by the NutraSweet Company, a US exporter of
   aspartame, the Commission initiated a review investigation on 26 April 1994.
3. After having completed this investigation, the Commission has come to the
   conclusion that removing the duty in force on imports of aspartame originating in
   both the USA and Japan would not entail any risk of injurious dumping being
   resumed.
4. In accordance with Article 14 of Council Regulation (EC) No 2423/882 - which
   continues to apply to these proceedings by virtue of Article 23 of Council
   Regulation (EC) No 3283/943 as amended by Regulation (EC) No 355/954 - the
   Commission, after consultation of the Advisory Committee, therefore proposes to
   repeal Council Regulation (EEC) No 1391 imposing a definitive anti-dumping
   duty on imports of aspartame originating in Japan and the United States of
   America.
 1
    OJNoL 134, 29.5.1991, p. 1
2
    OJ No L 209, 2.8.1988, p. 1
3
    OJ No L 349, 31.12.1994, p. 1
4
    OJ No L 41, 23.2.1995, p.2
 ---pagebreak---                          COUNCIL REGULATION (EC) No ~J95
                                        of... 1995
repealing Regulation (EEC) No 1391/91 imposing a definitive anti-dumping duty on
    imports of aspartame originating in Japan and the United States of America
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 3283/94 of 22 December 1994 on
protection against dumped imports from countries not members of the European
Community5, as amended by Regulation (EC) No 355/956, and in particular Article 23
thereof, which laid down that Regulation (EEC) No 2423/88 of 11 July 1988 on
protection against dumped or subsidised imports from countries not members of the
European Economic Community7, as last amended by Regulation (EC) No 522/948, shall
continue to apply to proceedings in relation to which an investigation pending on 1
September 1994 has not been concluded by the date of entry into force of Regulation
(EC) No 3283/94,
Having regard to Regulation (EEC) No 2423/88 and in particular Article 14 thereof,
Having regard to the proposal submitted by the Commission, after consultations within
the Advisory Committee,
Whereas:
                             A.     PREVIOUS PROCEDURE
(1)     By Regulation (EEC) No 1391/919, the Council imposed a definitive anti-
        dumping duty on imports of aspartame originating in Japan and the United States
        of America (USA).
 5
        OJ No L 349, 31.12.1994, p. 1
 6
        OJ No L 41, 23.2.1995, p.2
 7
        OJ N o L 209,2.8.1988, p. 1
 8
        OJ No L 66,10.3.1994, p. 10
 9
         OJ N o L 134,29.5.91, p.l
 ---pagebreak---                           B.      PRESENT PROCEDURE
    1.      Review application
(2) In January 1994, a US exporter, the NutraSweet Company (hereafter 'NSC'),
    asked the Commission to review the anti-dumping duty applicable to imports of
    aspartame originating in the USA and to reopen the investigation. NSC argued in
    its review application that the following significant changes had occurred since
    the imposition of the definitive duty which constitute substantially changed
    circumstances sufficient to justify the need for a review within the meaning of
    Article 14 of Council regulation (EEC) No 2423/88 (hereafter 'the basic
    Regulation'):
            domestic US prices have significantly decreased as a result of the expiry
            of the US patent held by NSC. As a consequence, NSC's normal value has
            dramatically decreased, thus eliminating the conditions for a dumping
            margin;
             a state-of-the art plant has been established in France, for the production
             of aspartame, which is co-owned by NSC. The production capacity of this
             plant will be sufficient to cover the normal EC demand for aspartame;
             exports of US aspartame by NSC to the EC have significantly decreased
             and are being replaced by sales of aspartame produced in the EC.
    2.       Initiation of review investigation
(3) It was considered, after consultation of the Advisory Committee, that the request
    contained sufficient evidence of changed circumstances to warrant a review
    pursuant to Article 14 of the basic Regulation.
(4) The Commission therefore published a notice in the Official Journal of the
    European Communities10 and commenced an investigation.
    3.       Scope of the review
(5) The product concerned by this review investigation is the same as the product
    subject to the definitive anti-dumping duty, namely aspartame, a sweetening
    ingredient with a taste profile similar to sugar but a smaller caloric value, falling
    within CN code ex 2924 29 90.
(6) The investigation of dumping covered the period 1 October 1993 to 31 March
     1994.
 10  OJNoC 115, 26.4.94, p. 1
 ---pagebreak--- (7)   Although the review application lodged by NSC was explicitly limited to the anti-
      dumping duty imposed on imports from the USA, the Commission considered
      whether such a limitation was justified and informed the Japanese exporter of
      aspartame involved in the previous investigation, Ajinomoto Co. Ltd., Tokyo
      (hereafter 'Ajinomoto'), prior to opening the investigation. However, this company
      indicated that it was now supplying the EC market from manufacturing facilities
      in the Community and had no interest in participating in a review investigation.
(8)   Because of an explicit indication in the review application that "the requested
      review should be limited to the dumping margin of NSC", the Commission did
      not address-injury aspects during the first phase of the investigation. However,
      when it subsequently became apparent that the anti-dumping duty in force would
      not be repealed based on dumping findings, NSC decided to shift the emphasis of
      its argumentation to injury aspects and explicitly requested the Commission to
      verify that "there (was) no threat that injurious dumping of aspartame exported
      from the US would resume if the anti-dumping measures under review were
      repealed".
      4.       Investigation
(9)   The Commission officially notified the sole Community producer of aspartame
      and complainant in the previous investigation, the Holland Sweetener Company
      Vof (hereafter 'HSC'), the US exporter NSC and the US authorities of the
      initiation of the investigation and gave the parties concerned the opportunity to
      make their views known in writing and to request a hearing.
(10)  The Commission sought and verified all the information it deemed to be
      necessary for the purpose of its investigation and visited the premises of the US
      exporter NSC in Deerfield, Illinois.
(11)  The Commmunity producer HSC, the US exporter NSC and the Japanese exporter
      Ajinomoto were offered the possibility to be informed of the essential facts and
      considerations on the basis of which it was intended to repeal the anti-dumping
      duty. However, none of the parties concerned made a request to this effect.
                        C.      RESULT OF INVESTIGATION
      1.       Dumping
       1.1     Normal value
 (12)  During the investigation period, NSC was selling aspartame on the US market in
       quantities which were clearly sufficient to base normal value on domestic prices.
       It was established that these sales were in the ordinary course of trade.
 (13)  The essential element in the investigation of the normal value was the decrease in
       US domestic prices which, according to NSC, occurred following the expiry of
       the exclusive patent held by this company. It was confirmed that the patent had
       effectively expired in December 1992, thereby allowing competition on the US
       aspartame market, and that prices had substantially decreased as compared with
       those recorded during the previous investigation.
                                              A.  \
                                                     \
                                                       \
 ---pagebreak---       1.2      Export price
(14)  NSC made two export transactions to the Community only during the
      investigation period. This is due to the fact that this company had virtually ceased
      to export following the establishment of a production plant in France which is
      now supplying all EC customers of NSC. It was found that these transactions,
      concerning relatively small quantities of aspartame, had been specifically
      arranged with European customers for the purpose of the review investigation.
      For this reason, the information relating to the prices paid by the customers
      concerned was considered as misleading and it was decided to disregard it in
      accordance with Article 7(7)(b) of the basic Regulation.
(15)  Under these circumstances, and in the absence of any other reasonable basis for
      the export price, the Commission chose to look at the "old" export prices recorded
      during the previous investigation.
       1.3     Comparison
(16)  The comparison of the "new" normal value, based on US domestic prices during
      the investigation period, with the "old" export prices, recorded during the
      previous investigation, revealed that, although NSC's normal value had decreased
       significantly since the previous investigation, this decrease was not altogether
       sufficient to completely eliminate the dumping margin.
      2.       Injury
      2.1      Argumentation presented by NSC
 (17)  Out of the elements presented by NSC, the following were of direct relevance for
       an evaluation of the injury aspects of the case:
               a plant has been established in the Community by NSC, as a joint venture
               with the Japanese producer Ajinomoto, with sufficient production to
               satisfy the demand of NSC's customers in the Community;
                as a result, NSC has virtually ceased to export aspartame to the
               Community since the middle of 1993;
               the capacity of the French plant being sufficient to cover all anticipated
               demand in the EC market, there is no reason to believe that exports from
                the US would resume to a sizeable market share if the anti-dumping
                measures were lifted.
       The evidence supplied by NSC to substantiate these points was examined.
       2.2      No comments by Community producer
 ---pagebreak--- ( 18) HSC was invited to comment on the argumentation presented by NSC in relation
      to injury aspects. Its attention was drawn to the fact that, in the absence of any
      objection, the decision may be taken to repeal the anti-dumping duties currently in
      force on imparts of aspartame originating in both the USA and Japan. However,
      HSC did not raise any objection to such an outcome.
      2.3      Conclusions on injury
      2.3.1 No risk of resumption of injury
(19)  HSC being the sole producer of aspartame in the Community and the only
      complaining party in the previous procedure, the absence of comments on its part
      is to be interpreted as a loss of interest in the continuation of the anti-dumping
      measures and a confirmation of NSC's argument that a repeal of these measures
      would not entail anyriskof injurious dumping being resumed.
      2.3.2 Validity of this conclusion for Japan as well as the USA
(20)  Although the scope of the review was explicitly limited to imports from the USA,
      the conclusion of no injury reached in this investigation made it unavoidable to
      also reconsider the validity of the anti-dumping duty imposed on imports from
      Japan. This was done under Article 14(3) of the basic Regulation without a
      specific re-opening of the investigation in this respect.
(21)  The information available suggests that the main reason why the Community
      industry no longer feels injured by imports of aspartame is the fact that such
      imports have been discontinued as a result of the setting up of production
      facilities in France and are not likely to resume to a sizeable market share. The
      sole Japanese producer of aspartame, Ajinomoto, is an equal partner of NSC in
      this joint venture and information obtained from this company (see recital (7)
      supra) indicates that they also are now exclusively supplying the EC market with
      Community produced aspartame.
(22)  Under these circumstances, the conclusion of no risk of resumption of injury
      arrived at in relation to NSC equally applies to Ajinomoto.
                   D.      REPEAL OF ANTI-DUMPING DUTIES
(23)  In view of the foregoing, the anti-dumping duties in force on imports of aspartame
      originating in both the USA and Japan should be repealed, thereby terminating the
      proceeding.
HAS ADOPTED THIS REGULATION:
                                         Article 1
Regulation (EEC) No 1391/91 is hereby repealed.
 ---pagebreak---                                          Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal
of the European Communities.
        This Regulation shall be binding in its entirety and directly applicable in all
        Member States.
        Done at......   1995.
                                                      For the Council
                                                      The President
 ---pagebreak---                                                                    ISSN 0254-1475
                                                             COM(95) 326 final
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