Council Implementing Regulation (EU) No 1138/2011 of 8 November 2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain fatty alcohols and their blends originating in India, Indonesia and Malaysia

• (111) The analysis showed as well that the surfactants producers achieved lower profit margins in the sectors using the product under investigation; however, this group imported from the countries concerned only about 2,6 % of their total purchases of the product under investigation during the IP. Furthermore, the percentage of the surfactants business using FOH in comparison to their total turnover is about 24 %. Hence, even with the application of an average dumping duty of 5 %, the final impact on the cost of production of products including the product investigated is very limited and even negligible on their total profitability.

• (112) Some surfactant producers nevertheless argued that the anti-dumping duties will prevent them from freely buying their raw materials, thus creating a distortion in their market segment.

• (113) As stated in recital 120 of the provisional Regulation, the level of anti-dumping duties and the possible impact on the user industry and on the downstream market, do not create serious barriers to imports of the product concerned. The investigation confirmed that the definitive anti-dumping duties could not create a distortion on the downstream market. At the same time, it should not be difficult for surfactant producers to pass on this rather low increase in cost in the final price of their products. Therefore, the claims that the anti-dumping duties would create distortions in the downstream market are rejected.

• (114) After disclosure of definitive findings some users insisted that the Union producers had refused to supply goods to them, and that there were few alternatives of supply. However, as stated in recital 120 of the provisional Regulation, the relatively low level of proposed measures should not preclude the possibility to import the product concerned. Furthermore, the Union producers did not produce at full capacity during the period considered. In addition, imports are also possible from other third countries which are not subject to measures and the Eurostat figures for imports of FOH from the rest of the world after the IP show that these imports are growing, indicating that the alleged risk of lack of supply is unsubstantiated. Therefore, this claim was rejected.

• (115) Some users’ associations which failed to make themselves known in the deadline foreseen under point 5.3 of the notice of initiation claimed that their views, especially on the possible impact of the measures on small and medium enterprises and on specific sectors, had not been reflected in the assessment of the Union interest. However, it should be noted that all the comments raised by these associations have been taken into consideration in this investigation. Furthermore, as stated in recital 109, the assessment of the Union interest has taken into account all information submitted by the cooperating users. Therefore, this claim has been rejected.

• (116) Several parties claimed that the duration of the measures, were these to be imposed, should be limited to a maximum period of 2 years. According to the basic Regulation, a definitive anti-dumping measure shall normally be imposed for the duration of 5 years. Since none of the parties demonstrated that a period of 2 years would be sufficient to counteract the dumping causing injury as demanded in Article 11(1) of the basic Regulation, there seems to be no valid reason to deviate form the standard duration of the length of the measures. Therefore, this claim has been rejected.

• (117) In the absence of any other comments on the interest of users, it is confirmed that the imposition of definitive measures on imports of the product concerned would not be against the Union interest, recitals 117 to 121 of the provisional Regulation are thus confirmed.

Conclusion on Union interest

• (118) Based on the above the conclusion reached in recital 122 of the provisional Regulation can be confirmed. There are no compelling reasons against the imposition of definitive anti-dumping duties on imports of FOH from the countries concerned.

DEFINITIVE ANTI-DUMPING MEASURES Injury elimination level

• (119) It is recalled that the profit margin used to calculate the target profit at provisional stage was 7,7 %. The complainants have argued that a target profit of 15 % would be more appropriate. In this respect, it should be noted that they failed to submit verifiable evidence to support the claim that the target profit was too low. Therefore, it is proposed to confirm the provisional target profit of 7,7 % which is based on the profit margin achieved for the whole alcohol business of the one complainant in its last profitable year before the surge of low-priced dumped imports.

• (120) Certain parties claimed that 7,7 % was not realistic and was too high. They suggested using a lower profit margin between 3 and 5 % to establish the injury elimination level. This claim however was not substantiated by any evidence showing that the profit proposed was the one that could be achieved by the Union industry in the absence of dumped imports in the Union market and was thus not accepted.

• (121) Certain parties have claimed that the Commission erroneously established the injury elimination level on the basis of the underselling margin, whereas it should have used the undercutting margin. In the present case, it was not considered that the undercutting margin was an appropriate basis to establish the injury elimination level for the Union industry as it would not reflect the level of price that could be obtained in the absence of dumped imports in the Union market. The claim was thus rejected.

• (122) On this basis, the provisional injury margins expressed as a percentage of the cif Union frontier price, duty unpaid as indicated in recital 127 of the provisional Regulation can be confirmed.

Definitive measures Form of the definitive measures

• (123) As mentioned in recitals 79 to 84, some parties claimed, inter alia, that the current measures should be suspended because post-IP events concerning the price increase of the product concerned in the Union market were manifest, undisputed and lasting. They also argued that any definitive measures should not take the form of an ad valorem duty but rather imposed in the form of an MIP.

• (124) It is considered however that in this particular case the circumstances are not such as to warrant the imposition of a minimum import price. This form of the measure could easily be circumvented given the nature of the product concerned and the complex corporate structures of the exporters in question.

• (125) However, it is admitted that there is certain price sensitivity in the market for the product at issue and thus it would be reasonable to minimise the impact of the definitive measures on Union users in the event of possible significant price increases of the product concerned. Hence, it is considered appropriate to change the form of the definitive measures from ad valorem duties to specific duties.

• (126) This form of measures is expected to limit to a certain extent any possible undue negative impact on the users in the case prices would increase significantly and rapidly. If, on the other hand, prices would decrease, the specific duties would still ensure sufficient protection to the Union producers. The specific duties are based on the cif values of the cooperating companies’ Union exports in the IP, converted to euro using monthly exchange rates, multiplied by the lower of the dumping and the injury margins in accordance with the lesser duty rule.

• (127) In this respect, two exporting producers claimed that the yearly average exchange rate should be used instead of the monthly. However, it is noted that in accordance with the standard practice, any conversion of currencies in anti-dumping investigations is made using the monthly exchange rates. This was the cases also for this investigation. The claim was therefore rejected.

• (128) The complainant claimed that when establishing the specific duties, current FOH prices and not cif values during the IP should have been used. It should be noted that specific duties are established based on the dumping and injury calculations for the IP. No substantiated arguments have been put forward for basing the calculations of the specific duties in this case on a period after the IP. Therefore this claim has been rejected.

Imposition of the definitive measures

• (129) After the publication of provisional measures a potential exporting producer came forward and claimed that the residual duty rate should be set at the level of the highest duty imposed and not of the highest dumping margin found for Indonesia. However, the residual duty is set at the residual dumping or the residual injury margin by applying the lesser duty rule. The claim was therefore rejected.

• (130) In the light of the foregoing, it is considered that, in accordance with Article 9(4) of the basic Regulation, definitive anti-dumping measures should be imposed in respect of imports of the product concerned at the level of the lower of the dumping and the injury margins, in accordance with the lesser duty rule.

• (131) All parties were informed of the essential facts and considerations on the basis of which it was intended to recommend the imposition of definitive anti-dumping duties. They were also granted a period within which they could make representations subsequent to final disclosure. The comments submitted by the parties were duly considered, and, where appropriate, the findings have been modified accordingly.

• (132) The proposed definitive anti-dumping duties are the following:

• (133) The individual company anti-dumping duty rates specified in this Regulation are solely applicable to imports of the product concerned produced by these companies and thus by the specific legal entities mentioned. Imports of the product concerned manufactured by any other company not specifically mentioned in this Regulation with its name and address, including entities related to those specifically mentioned, cannot benefit from these rates and should be subject to the duty rate applicable to ‘all other companies’.

• (134) Any claim requesting the application of these individual anti-dumping duty rates (e.g. following a change in the name of the entity or following the setting up of new production or sales entities) should be addressed to the Commission ([^E0010]) forthwith with all relevant information, in particular any modification in the company’s activities linked to production, domestic and export sales associated with, for instance, that name change or that change in the production and sales entities. If appropriate, this Regulation should then be amended accordingly by updating the list of companies benefiting from individual anti-dumping duty rates.

Undertakings

• (135) One Indian as well as one Malaysian exporting producer, together with its related importer, offered a price undertaking in accordance with Article 8(1) of the basic Regulation. Both undertaking offers contained a high number of product groups (determined by the chemical specification), each group subject to a different minimum import price (MIP), with price differences between the groups up to 25 % for the Malaysian exporter and up to 100 % for the Indian exporter. In addition, prices varied up to 20 % within the individual groups, thus posing a very high risk of cross-compensation. It was also noted that the offer of the Indian exporter did not address the volatility of prices of the product concerned. Additional cross-compensation risks were identified with regards to the Malaysian exporter and its related importer in the Union who did not only source the product concerned from the Malaysian exporter but also from other suppliers. Finally, it would be difficult for customs to determine the chemical specification of the product without individual analysis, thus rendering the monitoring very burdensome, if not impracticable. The undertaking offers were therefore rejected. Following the proposal to change the form of the measures, one exporting producer amended its undertaking offer suggesting an average MIP for all product groups and claiming that there will be no risk of cross-compensation any longer. The other exporting producer simply upheld its offer. However, given the number of product types and the price variation between them, an MIP could completely compromise the effectiveness of the measures. Furthermore, the structure of the companies and of their offers as outlined above still constitutes an obstacle towards accepting an undertaking. The reporting and price regime suggested by one exporter does not address those concerns and in any case would render the monitoring very burdensome, if not impracticable. Consequently, the undertaking offers cannot be accepted.

Definitive collection of provisional anti-dumping duties

• (136) In view of the magnitude of the dumping margins found and in the light of the level of the injury caused to the Union industry, it is considered necessary that the amounts secured by way of the provisional anti-dumping duty imposed by the provisional Regulation should be definitively collected to the extent of the amount of the definitive duties imposed by this Regulation. Where the definitive duties are lower than the provisional duties, amounts provisionally secured in excess of the definitive rate of anti-dumping duties should be released,

HAS ADOPTED THIS REGULATION:

Article 1

Article 2

The amounts secured by way of the provisional anti-dumping duty pursuant to Regulation (EU) No 446/2011 shall be definitively collected. The amounts secured in excess of the rates of the definitive anti-dumping duty shall be released.

Article 3

This Regulation shall enter into force on the day following 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.

[^E0001]: OJ L 343, 22.12.2009, p. 51.

[^E0002]: OJ L 122, 11.5.2011, p. 47.

[^E0003]: OJ C 219, 13.8.2010, p. 12.

[^E0004]: Case C-175/87, Matsushita Electric Industrial Co. Ltd and Matsushita Electric Trading Co. Ltd v Council of the European Communities, [1992] ECR I, p. 1409.

[^E0005]: Case T-249/06, Interpipe Nikopolsky Seamless Tubes Plant Niko Tube ZAT and Interpipe Nizhnedneprovsky Tube Rolling Plant VAT v Council of the European Union, [2009] ECR II, p. 383.

[^E0006]: Case C-171/87, Canon Inc v Council of the European Communities, [1992] ECR I, p. 1237.

[^E0007]: For instance in Commission Regulation (EC) No 862/2005 of 7 June 2005 imposing provisional anti-dumping duties on imports of granular polytetrafluoroethylene (PTFE) originating in Russia and the People’s Republic of China (OJ L 144, 8.6.2005, p. 11) and in Commission Regulation (EC) No 390/2007 of 11 April 2007 imposing a provisional anti-dumping duty on imports of peroxosulphates (persulphates) originating in the United States of America, the People’s Republic of China and Taiwan (OJ L 97, 12.4.2007, p. 6).

[^E0008]: WT/DS141/AB/R, adopted 12 March 2001.

[^E0009]: Council Regulation (EC) No 260/2007 of 9 March 2007 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain tungsten electrodes originating in the People’s Republic of China (OJ L 72, 13.3.2007, p. 1).

[^E0010]: European Commission, Directorate-General for Trade, Directorate H, NERV-105, 1049 Bruxelles/Brussel, BELGIUM.

[^E0011]: OJ L 253, 11.10.1993, p. 1.