Commission Implementing Regulation (EU) 2022/2001 of 21 October 2022 imposing a definitive anti-dumping duty on imports of aspartame originating in the People’s Republic of China, following an expiry review pursuant to Article 11(2) of Regulation (EU) 2016/1036 of the European Parliament and of the Council

• (119) Therefore, while the high volume of imports from the PRC for the factors of production mentioned above could have a distorting effect on the price of the imports from other countries, considering that the current investigation is an expiry review pursuant to Article 11(2) on the basic Regulation which does not require a precise dumping margin calculation, but rather to establish the likelihood of continuation or recurrence of dumping, the Commission considered that in this case it could exceptionally use the import price from countries other than the PRC following the methodology stated in recital (136), despite the high volume of imports from the PRC.

• (120) Changmao opposed the selection of either Ajinomoto Thailand or Ajinomoto Malaysia. It argued that (1) both entities focus on the production of other products and not sweeteners, especially not aspartame, (2) the profit margin of Ajinomoto Thailand exceeded the reasonable profit margin achieved by a sweetener producer, (3) as Ajinomoto Japan had a monopolistic position in the market in Japan, it was likely that Ajinomoto Thailand and Ajinomoto Malaysia also enjoyed very strong positions in their markets. Furthermore, Changmao argued that since Ajinomoto’s exports of aspartame from Japan to the Union increased since the imposition of the antidumping duties on the PRC, Ajinomoto Group had a vested interest in maintaining the antidumping duties in force. As a result, it was argued that in order to ensure the conduct of an objective investigation, it was not appropriate to select any Ajinomoto related companies in Thailand or Malaysia for the purposes of determining the normal value.

• (121) The Commission noted that Changmao did not propose any alternative producers in Malaysia and Thailand. As regard the first claim, it is recalled that aspartame is only produced in the PRC, Japan and EU. While Ajinomoto Malaysia manufactures several types of products, it also manufactures sweeteners. Aspartame is a type of sweetener.

• (122) With regard to the claim concerning the fact that the level of profit of Ajinomoto Thailand was too high, as highlighted in the Note of 4 March 2022, the annual report publicly available presented the financial data on a consolidated bases, not only for the entity in Thailand that manufactures sweeteners. Furthermore, the Commission noted that Changmao did not give any indication regarding a ‘reasonable’ profit margin achieved by a sweetener producer.

• (123) Concerning the claim on the monopolistic position of Ajinomoto affiliates in Thailand and Malaysia, the Commission noted that Changmao did not submit any evidence in this regard. Therefore, this claim was rejected.

• (124) Finally, the claim that it was not appropriate to select any Ajinomoto related company in Thailand or Malaysia for the purposes of determining the normal value due to the fact that Ajinomoto arguably had an interest to maintain the anti-dumping measures in force in EU was not substantiated and, in any event, the Commission was relying on readily available audited financial information. Therefore, the claim was rejected.

• (125) In view of the above, the Commission considered that the financial information available for the Malaysian company Ajinomoto Malaysia was the most appropriate source to establish the SG&A and profits for the construction of the normal value. Audited financial statements overlapping the review period by 9 months were readily available for Ajinomoto Malaysia and allowed a reliable calculation of the SGA and profit margin for the construction of the normal value. Furthermore, Ajinomoto Malaysia is a large company and has significant production of products in the same general category as the product under review. On the other hand, as explained above, the information for Ajinomoto Company (Thailand) was consolidated at group level without any separate declaration of the financial data for Ajinomoto Thailand.

• (126) Therefore, the Commission concluded that the financial data of Ajinomoto Malaysia, which included flavourings and food additives, was appropriate for the purpose of this review.

• (127) In the light of the above considerations, the Commission informed the interested parties with the Second Note that it intended to use Malaysia as an appropriate representative country and the company Ajinomoto (Malaysia) Berhad, in accordance with Article 2(6a)(a), first ident of the basic Regulation, in order to source undistorted prices or benchmarks for the calculation of normal value.

• (128) Interested parties were invited to comment on the appropriateness of Malaysia as a representative country and of Ajinomoto (Malaysia) Berhad as producer in the representative country. No further comments were received.

3.3.2.4.   Level of social and environmental protection

• (129) Having established that Malaysia was the only available appropriate representative country, based on all of the above elements, there was no need to carry out an assessment of the level of social and environmental protection in accordance with the last sentence of Article 2(6a)(a) first indent of the basic Regulation.

3.3.2.5.   Conclusion

• (130) In view of the above analysis, Malaysia met the criteria laid down in Article 2(6a)(a), first indent of the basic Regulation in order to be considered as an appropriate representative country.

3.3.3.   Sources used to establish undistorted costs

• (131) In the First Note, the Commission listed the factors of production such as materials, energy and labour used in the production of the product under review by the exporting producers and invited the interested parties to comment and propose publicly available information on undistorted values for each of the factors of production mentioned in that note.

• (132) Subsequently, in the Second Note, the Commission stated that, in order to construct the normal value in accordance with Article 2(6a)(a) of the basic Regulation, it would use GTA to establish the undistorted cost of most of the factors of production, notably the raw materials. In addition, the Commission stated that it would use the Institute of Labour Market Information and Analysis (ILMIA) ²⁷ for establishing undistorted costs of labour, electricity price information published by the electricity company Tenaga Nasional Berhad (TNB) in its website ²⁸ for electricity costs.

3.3.3.1.   Undistorted costs and benchmarks

3.3.3.1.1.   Factors of production

• (133) Considering all the information based on the request and subsequent information submitted by the applicant and collected during the verification visit, the following factors of production and their sources have been identified in order to determine the normal value in accordance with Article 2(6a)(a) of the basic Regulation:

Table 1

Factors of production of aspartame

Factor of Production	Commodity Code in Malaysia	Undistorted value (CNY)	Unit of measurement
Raw materials	Raw materials	Raw materials	Raw materials
Acetic anhydride	29152400	9,73	kg
L-aspartic acid	29224900	16,56	kg
L-phenylalanine	29224900	16,56	kg
Formic acid	29151100	5,51	kg
Methanol	29051100	2,00	kg
Sodium hydroxide/Caustic Soda (Salts of formic acid)	29151200	6,95	kg
Sodium carbonate (disodium carbonate)	28362000	1,62	kg
Labour	Labour	Labour	Labour
Direct and indirect labour in the manufacturing sector	[N/A]	53,6	Per hour
Energy	Energy	Energy	Energy
Electricity	[N/A]	0,54	kWh

• (134) The Commission also included a value for manufacturing overhead costs in order to cover costs not included in the factors of production referred to above. The methodology to establish this amount is duly explained in recital (141).

Raw materials

• (135) The cost structure of aspartame is mainly determined by the costs of the raw materials, i.e. various chemicals, as well as energy.

• (136) In order to establish the undistorted price of raw materials as delivered at the gate of a representative country producer, the Commission used as a basis the weighted average import price to the representative country as reported in the GTA to which import duties were added. An import price in the representative country was determined as a weighted average of unit prices of imports from all third countries excluding the PRC and countries which are not members of the WTO, listed in Annex 1 of Regulation (EU) 2015/755 of the European Parliament and the Council ²⁹. The Commission decided to exclude imports from the PRC into the representative country as it concluded in recital (108) that it is not appropriate to use domestic prices and costs in the PRC due to the existence of significant distortions in accordance with Article 2(6a)(b) of the basic Regulation. Given that there is no evidence showing that the same distortions do not equally affect products intended for export, the Commission considered that the same distortions affected export prices. After excluding the PRC as well as non-WTO Members, as explained in recital (119), the Commission considered that the imports from other third countries remained sufficiently representative.

• (137) Normally, domestic transport prices should also be added to these import prices. However, considering the finding in recital (77) as well as the nature of this expiry review investigation, which is focused on finding whether dumping continued during the review investigation period or could reoccur, rather than finding its exact magnitude, the Commission decided that adjustments for domestic transport were unnecessary. Such adjustments would only result in increasing the normal value and hence the dumping margin.

Labour

• (138) The Commission used the statistics published by the Institute of Labour Market Information and Analysis (ILMIA) ³⁰ in Malaysia to determine the wages in Malaysia by using the information for average labour cost per employee in the manufacturing sector for the investigation period.

Electricity

• (139) Prices for electricity for companies (industrial users) in Malaysia are published by the electricity company Tenaga Nasional Berhad (TNB) on its website ³¹. The most recent rates were published on 1 January 2014 and were still applicable in the RIP. In order to establish the electricity cost per kWh, the Commission used the rate of tariff E1 applicable to medium voltage general industrial tariff, which was considered to be appropriate for the aspartame industry.

3.3.3.1.2.   Manufacturing overhead costs, SG&A, profits and depreciation

• (140) According to Article 2(6a)(a) of the basic Regulation, ‘the constructed normal value shall include an undistorted and reasonable amount for administrative, selling and general costs and for profits’. In addition, a value for manufacturing overhead costs needs to be established to cover costs not included in the factors of production referred to above.

• (141) In order to establish an undistorted value of the manufacturing overheads and given the absence of cooperation from the Chinese producers, the Commission used facts available in accordance with Article 18 of the basic Regulation. Therefore, based on the data provided by the sole Union producer in the questionnaire, the Commission established the ratio of manufacturing overheads to the total manufacturing costs. This percentage was then applied to the undistorted value of the cost of manufacturing to obtain the undistorted value of manufacturing overheads.

• (142) For establishing an undistorted and reasonable amount for SG&A and profit, the Commission relied on the financial year data ending on 31 March 2021 for Ajinomoto Malaysia. The Commission made this data available to interested parties in the Second Note.

3.3.3.2.   Calculation of the normal value

• (143) On the basis of the above, the Commission constructed the normal value on an ex-works basis in accordance with Article 2(6a)(a) of the basic Regulation.

• (144) First, the Commission established the undistorted manufacturing costs. In the absence of sufficient cooperation by the exporting producers, the Commission relied on the information provided by the applicant in the questionnaire reply on the usage of each factor for the production of aspartame. These consumption ratios provided by the applicant were verified during the verification. The Commission multiplied the consumption ratios by the undistorted costs per unit observed in the representative country Malaysia.

• (145) The Commission had also received certain information concerning the factors of production from the one cooperating Chinese exporting producer. However, as recalled at recitals (75) and (77), given the significant level of non-cooperation in this case, this producer was not representative for the companies that exported to the Union market during the review investigation period, and thus its data (i.e. consumption factors) was not considered appropriate to use in the normal value calculation. If cooperation is extremely limited, the Commission cannot assure itself that the data of cooperating exporting producers are an accurate reflection of the actual dumping being practised country-wide.

• (146) Once the undistorted manufacturing costs were established, the Commission added the manufacturing overheads, SG&A and profit. Manufacturing overheads were determined based on data provided by the applicant in the review request. SG&A and profit were determined based on the financial statements of Ajinomoto Malaysia) for the year ended March 2021 as reported in the company’s audited accounts ³². The Commission added the following items to the undistorted costs of manufacturing:

• — Manufacturing overheads, which accounted in total [3 % – 7 %] of the direct costs of manufacturing,

• — SG&A, which accounted for 34,7 % of the Costs of Goods Sold (‘COGS’) of Ajinomoto Malaysia, and

• — Profits, which amounted to 19,8 % of the COGS as achieved by Ajinomoto Malaysia, were applied to the total undistorted costs of manufacturing.

• (147) On that basis, the Commission constructed an average unit normal value on an ex-works basis in accordance with Article 2(6a)(a) of the basic Regulation.

• (148) In their comments following final disclosure, Changmao claimed that Ajinomoto Malaysia was not comparable to Changmao and other producers from the PRC and its SG&A was much higher than the SG&A of the sweetener producers, as Ajinomoto Malaysia: (1) was active in the production of ingredients, such as monosodium glutamate, (2) did not produce mainly sweeteners, (3) also operated retails business with high SG&A, as well as (4) offered after-sale services to their customers and promotional activities. Changmao claimed that the Commission should examine the details of the SG&A incurred by Ajinomoto Malaysia and make all necessary adjustments on account of these differences in order to ensure a fair comparison between the normal value and the export prices of Changmao and other Chinese producers.

• (149) In this respect, the Commission noted that Article 2(6a) of the basic Regulation requires that in cases of distortions the normal value must be constructed exclusively on the basis of costs of production and sale reflecting undistorted prices or benchmarks. For this purpose, it provides that costs in an appropriate representative country with a similar level of economic development as the exporting country are used, provided the relevant data is readily available. In the present case, Malaysia was found to be an appropriate representative country and financial information to be readily available for Ajinomoto Malaysia. Changmao has not submitted any evidence concerning the after sales services and promotional activities. Also Changmao did not indicate what was the magnitude of these expenses that the Commission should use to adjust the total SG&A of Ajinomoto Malaysia. The annual report of Ajinomoto Malaysia ending on 31 March 2021 does not include a detailed breakdown of the SG&A information which would allow the Commission to assess whether these allegations were accurate. Therefore, the claim was rejected.

• (150) Changmao also claimed that the profit margin of Ajinomoto Malaysia of 19,85 % was too high for a small and medium size sweetener producer such as the Chinese producers. Changmao stated that in the original investigation, the Commission used a target profit between 5 % and 10 %.

• (151) The Commission noted that the target profit and the profit in the representative country refer to different concepts and to different countries. In particular, the target profit to which Changmao refers is the profit achieved by the Union industry for domestic sales in the Union under normal conditions of competition and it is used to calculate the injury margin. The profit in the representative country is used in the calculation of normal value by reference to the appropriate representative country pursuant to Article 2(6a)(a) of the basic Regulation. This profit must reflect the profit achieved by a company producing the product under investigation or a similar product, in a representative country. Therefore, the claim was rejected.

• (152) In their comments following final disclosure, Changmao disagreed with the Commission’s position stated in recital (145) to use the consumption factors of the Union industry for the normal value determination. Changmao argued that the fact that it exported low volumes of aspartame to the Union during the review investigation period was not in itself sufficient to consider Changmao’s consumption factors unreliable.

• (153) The Commission disagreed with this claim. As explained in recital (145) if cooperation is extremely limited, the Commission cannot assure itself that the data of cooperating exporting producers are an accurate reflection of the actual dumping being practised country-wide. Moreover, Changmao did not show why using the consumption factors of the Union industry for the normal value determination would be inappropriate in this case. Changmao did not show either that no dumping would have existed, had the Commission used a more suitable alternative approach. Finally, as explained in recital (160), using the reported consumption data of Changmao would in any event not have affected the outcome of the investigation. Therefore, the claim was rejected.

3.4.   Export price

• (154) In the absence of cooperation by Chinese producers accounting for representative volumes, the export price was determined based on CIF Comext database (Eurostat) adjusted to ex-works level. Thus, the CIF price was reduced by the (sea) freight, insurance cost and domestic transport cost cited in the request for review.

3.5.   Comparison

• (155) The Commission compared the constructed normal value in accordance with Article 2(6a)(a) of the basic Regulation with the export price as established above.

3.6.   Dumping margin

• (156) On this basis, the weighted average dumping margin expressed as a percentage of the CIF Union frontier price, duty unpaid, was 27 %. It was therefore concluded that dumping continued during the review investigation period.

• (157) In their comments following final disclosure, Changmao claimed that Article 18 of the basic Regulation was applied to it due to the fact that its exports to the Union represent less than 3 % of the total imports of aspartame from the PRC. Changmao stated that the small volume it exported to the Union during the review investigation period did not constitute a legal basis for the Commission to conclude that the factors of production submitted by Changmao were not representative, and that Article 18 of the basic Regulation was applied thereto. Changmao claimed that pursuant to Article 2(3) and 2(6a)(a) of the basic Regulation, the small quantity of exports is not a justification for not calculating its normal value on the basis of its cost of production. Changmao also claimed that there was no representativeness test provided by the basic Regulation for constructed normal value and therefore the Commission should use its factors of production. Changmao also stated that the Commission made a mistake for the factors of production as Changmao used both electricity and steam while HSWT used only electricity, which was more expensive than steam. Furthermore, Changmao claimed that the Commission violated the rules of individual treatment according to the second paragraph of Article 9(5) of the basic Regulation. In particular, Changmao stated that as the Commission made an individual dumping margin determination and set an individual duty rate for Changmao in the original investigation, while the original duties could be maintained after the current expiry review investigation, the Commission could not deny such individual determination method without any legal basis.

• (158) As stated in recital (75), the Commission applied Article 18 of the basic Regulation concerning the findings with regard to the PRC and not Changmao. Indeed, in the context of an expiry review, the Commission aims to determine continuation or recurrence of dumping with respect to the country as a whole. The information provided by one exporting producer having very limited export volumes to the Union is not representative of the conduct of the total imports from the PRC when these have continued to a significant extent. Furthermore, as explained in recital (77), as the exports of Changmao were found not to be representative of the total imports from the PRC, the individual dumping margin of Changmao would not have been relevant to determine whether dumping had continued country-wide during the review investigation period.

• (159) The Commission did not disregard the factors of production submitted by Changmao. However, for the calculation of the normal value for the countrywide dumping margin calculation, the Commission used the consumption factors of the sole Union producer (the Union industry did not use steam) as facts available under Article 18 of the basic Regulation, since the Commission did not obtain such information due to the lack of cooperation of the Chinese exporting producers. Indeed, Changmao exports to the Union were not considered representative for the PRC as a whole since it accounted for less than 3 % of imports from the PRC.

• (160) In any event, the Commission noted that even had it relied on the factors of production and consumption ratios submitted by Changmao, the dumping margin calculation would still have yielded a margin of more than 20 %. For the sake of completeness, it is noted that the two factors of production reported by Changmao, i.e. steam and consumables, were not assessed, as they were not included in calculation of the normal value for the country wide dumping margin referred to in recital (156). Had the Commission included these two factors of production, the dumping margin would have been even higher. There was thus clear evidence of continued dumping in the present investigation, regardless of the methodology used.

• (161) Finally, Article 9(5) of the basic Regulation refers to the imposition of the individual duties. The current investigation is an expiry review pursuant to Article 11(2) of the basic Regulation, during which the Commission can only conclude whether the measures in force should be continued or terminated. Therefore, the second paragraph of Article 9(5) of the basic Regulation does not apply in the current investigation. Therefore, those claims were rejected.

4. LIKELIHOOD OF CONTINUATION OR RECURRENCE OF DUMPING

• (162) Further to the finding of the existence of dumping during the review investigation period as stated in recital (156), the Commission investigated, in accordance with Article 11(2) of the basic Regulation, the likelihood of continuation of dumping, should the measures be repealed.

• (163) As a consequence of the non-cooperation of exporting producers/producers in the PRC accounting for a representative volume of imports, the Commission based its assessment on the facts available in accordance with Article 18 of the basic Regulation, namely on information provided in the request for review, readily available information, and GTA. The following elements were analysed: the production capacity and spare capacity in the PRC and the attractiveness of the Union market and export prices to third countries.

4.1.   Production capacity and spare capacity in the PRC

• (164) The Commission analysed the situation relating to production capacity and spare capacity on the basis of the information in the request for review.

• (165) In the request for review, the applicant indicated that existing capacity in the PRC amounted to approximately 30 000 to 35 000 tonnes. No other information was publicly available in this regard. As none of the parties submitted any comments nor did they provide any additional information concerning the existing total capacity in the PRC, the Commission concluded that the current Chinese production capacity was likely to be in the range of 30 000 to 35 000 tonnes.

• (166) The domestic demand of aspartame in the PRC is estimated by the applicant to be approximately 10 000 tonnes. The total exports of the PRC amounted to about 16 000 tonnes in the review investigation period. Therefore, the spare capacity of the PRC is approximately 4 000 to 9 000 tonnes, which covers almost the entire Union consumption and it can be even double the Union consumption stated in Table 2.

• (167) Therefore, the Commission found that there was substantial spare production capacity in the PRC to increase sales to the Union market in the event that the anti-dumping measures were allowed to expire.

• (168) In their comments following final disclosure, Changmao claimed that the applicant overestimated the production capacity of aspartame in the PRC. In particular, Changmao claimed that its production capacity was lower than the 3 000 tonnes estimated by the applicant. Changmao submitted only in the confidential version a document indicating that the Chinese company Shaoxing Yamei Biochemistry Co. Ltd was not a producer of aspartame anymore. Furthermore, Changmao stated that other Chinese producers of aspartame had decreased their production capacity due to the new environment protection policy of the PRC. Changmao thus claimed that considering the domestic demand for aspartame in the PRC and the exports of aspartame to third countries, no spare production capacity for aspartame was available in the PRC which would be used to increase aspartame exports to the Union if the antidumping measures were removed.

• (169) The Commission notes that Changmao did not provide any evidence concerning decreases in capacity due to environment protection policies. Absent any evidence, the Commission dismissed this assertion. Furthermore, even after taking into account the decrease in production capacity of Changmao and Shaoxing Yamei Biochemistry Co. Ltd, there would still be spare capacity of more than 2 000 tonnes ³³, which would cover a significant share of the total consumption of aspartame in the Union.

4.2.   Attractiveness of the Union market and export prices to third countries

• (170) The attractiveness of the Union market for Chinese exports was apparent given their continuing presence even with anti-dumping measures – reaching [7 % – 10 %] of the Union market share during the RIP as mentioned in Table 3.

• (171) The high production capacity in the PRC provides a powerful incentive to export in this naturally export-oriented sector as Chinese producers have only two competitors outside the PRC: Ajinomoto in Japan and the applicant. If anti-dumping duties were left to expire, the Chinese producers would have an opportunity to increase their sales and market share in the Union.

• (172) Furthermore, the Commission examined whether it is likely that Chinese exporting producers would increase even more their export sales to the Union at dumped prices should measures be allowed to lapse. Therefore, the Commission examined the price levels of the Chinese exporting producers to other third country markets and compared to the prices of the Union industry.

• (173) In the absence of cooperation covering representative volumes from the PRC, the Commission used GTA. It was found that the average sales price of the Union industry ([12 051– 18 377] EUR/tonne) was higher than the average export price from the PRC to third countries during the review investigation period (9 939 EUR/tonne). Therefore, there would be an economic incentive for the Chinese exporting producers to shift exports from third countries to the Union, should the measures lapse, as the Union market is attractive. In such case the Chinese producers would be able to export to the Union at prices higher than those to other third country markets but still below the Union industry’s prices.

4.3.   Conclusion

• (174) Based on the above-mentioned spare capacity in the PRC, the attractiveness of the Union market for the Chinese exporting producers as evidenced by the third country export prices, the Commission concluded that there is a strong likelihood that the expiry of the anti-dumping measures would result in an increase of dumped exports.

• (175) In view of its findings on the continuation of dumping during the RIP and on the likely development of exports should the measures lapse as explained in recital (174), the Commission concluded that there is a strong likelihood that the expiry of the anti-dumping measures on imports from the PRC would result in the continuation of dumping.

5. INJURY

5.1.   Definition of the Union industry and Union production

• (176) The like product was manufactured by one producer in the Union during the period considered (Hyet Sweet SAS in 2018 and HSWT as of 2019 onwards as explained in recital (37)). It constitutes the ‘Union industry’ within the meaning of Article 4(1) of the basic Regulation.

• (177) The total Union production during the review investigation period was established in the range of [1 963- 2 909] tonnes.

5.2.   Union consumption

• (178) Aspartame is produced only in the Union, the PRC and Japan. The Commission established the Union consumption on the basis of the sales of the Union industry on the Union market and imports from the PRC and Japan, based on Eurostat.

• (179) Union consumption developed as follows:

Table 2

Union consumption (tonnes)

	2018	2019	2020	Review Investigation period
Total Union consumption	[1 539 – 2 141 ]	[4 355 – 6 058 ]	[3 826 – 5 322 ]	[3 957 – 5 504 ]
Index (FY2018 = 100)	100	283	249	257
Source: Eurostat and Questionnaire reply of the Union producer	Source: Eurostat and Questionnaire reply of the Union producer	Source: Eurostat and Questionnaire reply of the Union producer	Source: Eurostat and Questionnaire reply of the Union producer	Source: Eurostat and Questionnaire reply of the Union producer

• (180) Union consumption of aspartame fluctuated during the period considered. It first increased by 183 % from 2018 to 2019, then decreased by 12 % between 2019 and 2020 and then slightly increased again by 3 % in the review investigation period as compared to 2020. Overall, the Union consumption increased by 157 % during the period considered.

• (181) The variability of Union consumption reflected the increase in imports from the PRC and Japan in 2019 and then mainly from Japan in 2020 and the RIP as stated in Tables 3 and 6.

• (182) In their comments following final disclosure, Changmao asked the Commission to explain why there was a significant difference for the consumption for 2018 between the request for the review and the Table 2.

• (183) The Commission noted that the difference is due to the volume of imports from Japan for 2018. The request for review used the volume of imports from Japan from the 14(6) database, while the Commission based its assessment on Eurostat because it includes more detailed information (such as imports under the inward processing system). Nevertheless, even on the basis of 14(6) database, the findings of the investigation would not have changed because the trends for consumption and market shares remain materially the same.

5.3.   Imports from the country concerned

5.3.1.   Volume and market share of the imports from the country concerned

• (184) The Commission established the volume of imports on the basis of Eurostat. The market share of the imports was established on the basis of Eurostat and data provided by the Union industry.

• (185) Imports into the Union from the country concerned developed as follows:

Table 3

Import volume (tonnes) and market share

	2018	2019	2020	Review Investigation period
Volume of imports from the country concerned	[489 – 681 ]	[1 017 – 1 415 ]	[426 – 593 ]	[311 – 433 ]
Index (FY2018 = 100)	100	266	128	85
Market share	[28  % - 39  %]	[20  % – 28  %]	[10  % – 14  %]	[7  % – 10  %]
Index (FY2018 = 100)	100	73	35	25
Source: Eurostat and Questionnaire reply of the Union producer	Source: Eurostat and Questionnaire reply of the Union producer	Source: Eurostat and Questionnaire reply of the Union producer	Source: Eurostat and Questionnaire reply of the Union producer	Source: Eurostat and Questionnaire reply of the Union producer

• (186) The volume of imports from the PRC fluctuated over the period considered. It increased by 166 % between 2018 and 2019 and then decreased by the end of RIP by 69 % as compared to 2019. Overall, the volume of imports from the PRC decreased by 15 % during the period considered.

• (187) The market share of the imports from the PRC had a decreasing trend over the period considered and decreased by 75 % in the review investigation period as compared to 2018. The decrease in market share was due to an increase in Union consumption which was not followed at the same proportion by the volume of imports from the PRC.

5.3.2.   Inward processing system

• (188) Aspartame was imported from the PRC under the normal regime as well as under the inward processing system.

• (189) The imports from the PRC under the normal regime and under the inward processing system developed as follows:

Table 4

Import volume (tonnes) from the PRC under the normal regime and inward processing system

	2018	2019	2020	Review Investigation period
Volume of imports from the PRC under the normal regime	[292 – 407 ]	[776 – 1 080 ]	[374 – 521 ]	[249 – 346 ]
Index (FY2018 = 100)	100	266	128	85
Market share	[17  % – 23  %]	[16  % – 22  %]	[9  % – 12  %]	[6  % – 8  %]
Index (FY2018 = 100)	100	94	52	33
Volume of imports from the PRC under the inward processing regime	[197 – 274 ]	[241 – 335 ]	[52 – 72 ]	[63 – 87 ]
Index (FY2018 = 100)	100	122	26	32
Market share	[11  % – 16  %]	[5  % – 7  %]	[0  % – 2  %]	[0  % – 3  %]
Index (FY2018 = 100)	100	43	11	12
Source: Eurostat and Questionnaire reply of the Union producer	Source: Eurostat and Questionnaire reply of the Union producer	Source: Eurostat and Questionnaire reply of the Union producer	Source: Eurostat and Questionnaire reply of the Union producer	Source: Eurostat and Questionnaire reply of the Union producer

• (190) 25 % of total imports from the PRC were imported via the inward processing system in the review investigation period. Their volume decreased by 68 % over the period considered.

5.3.3.   Prices of the imports from the country concerned and price undercutting

• (191) The Commission established the prices of imports on the basis of Eurostat.

• (192) The weighted average price of imports into the Union from the country concerned developed as follows:

Table 5

Import prices (EUR/tonne)

	2018	2019	2020	Review Investigation period
The PRC	[8 452 – 11 758 ]	[9 104 – 12 665 ]	[8 976 – 12 486 ]	[8 859 – 12 323 ]
Index (FY2018 = 100)	100	108	106	105
Source: Eurostat (without imports under inward processing)	Source: Eurostat (without imports under inward processing)	Source: Eurostat (without imports under inward processing)	Source: Eurostat (without imports under inward processing)	Source: Eurostat (without imports under inward processing)

• (193) The average prices of imports from the PRC increased by 5 % during the period considered.

• (194) In view of the non-cooperation of the Chinese exporting producers accounting for a representative volume of imports as stated in recital (36), the Commission determined the price undercutting during the review investigation period by comparing the weighted average sales price of the sole Union producer charged to unrelated customers in the Union market, adjusted to an ex-works level and the weighted average export prices from the 14(6) database, including the anti-dumping duty, with appropriate adjustments for the post-importation costs. The price of the volumes of aspartame imported under the inward processing system were not taken into account as these volumes are not released in free circulation into the Union market.

• (195) The result of the comparison was expressed as a percentage of the sole Union producers’ turnover during the review investigation period and showed no undercutting.

• (196) In their comments following final disclosure, Changmao claimed that HSWT offered significant additional sales services to its clients which would be reflected in the sales prices and therefore brought HSWT’s sales to a different level of trade than the sales prices of Chinese exporters. Changmao considered that the Chinese and the Union industry’s prices should be compared at the same level of trade in the price undercutting calculations.

• (197) Changmao’s claim is speculative. As stated in recital (75), Changmao was the only Chinese exporting producer who cooperated in the investigation; however, its exports to the Union were not found to be representative for the PRC and Article 18 of the basic Regulation was applied. Therefore, the Commission could not assess the level of trade of the Chinese exporters. Finally, as stated in recital (195), there was no undercutting during the investigation period even without making any level of trade adjustments. Therefore, the claim was rejected.

5.3.4.   Imports from third countries other than the PRC

• (198) The imports of aspartame from third countries other than the PRC were almost exclusively from Japan.

• (199) The imports of aspartame from third countries other than the PRC and Japan represent less than 2 % of total imports over the period considered. As aspartame is produced only in the PRC, Japan and in the Union, the Commission considered that these imports were wrongly classified as aspartame, or their origin was wrongly declared. For this reason, the Commission did not consider these imports further in its injury analysis.

• (200) Aspartame was imported from Japan under the normal regime as well as under the inward processing system.

• (201) The (aggregated) volume of imports as well as the market share and price trends for imports of aspartame from Japan developed as follows:

Table 6

Imports from third countries

Country		2018	2019	2020	Review Investigation period
Japan	Total volume of imports (tonnes)	[312 – 434 ]	[2 478 – 3 447 ]	[2 383 – 3 315 ]	[2 579 – 3 587 ]
Japan	Index (FY2018 = 100)	100	795	764	827
Japan	Market share (%)	[18 – 25 ]	[50 – 69 ]	[55 – 76 ]	[57 – 80 ]
Japan	Volume of imports under the inward processing system	[0 – 0 ]	[1 049 – 1 459 ]	[1 152 – 1 602 ]	[1 529 – 2 127 ]
Japan	Index (FY2018 = 100)	-	100	110	146
Japan	Market share of Japanese imports under inward processing system (%)	[0 – 0 ]	[21 – 29 ]	[26 – 37 ]	[34 – 47 ]
Japan	Average price (EUR/tonne) without inward processing regime	[11 431 – 15 901 ]	[11 904 – 16 560 ]	[11 987 – 16 676 ]	[11 438 – 15 912 ]
Japan	Index (FY2018 = 100)	100	104	105	100
Source: Eurostat	Source: Eurostat	Source: Eurostat	Source: Eurostat	Source: Eurostat	Source: Eurostat

• (202) The total volume of imports from Japan increased by 727 % over the period considered. 60 % of total imports from Japan were imported under the inward processing regime in the review investigation period. The imports from Japan under the inward processing system were inexistent in 2018 and increased by 46 % in the review investigation period as compared to 2019.

• (203) The market share of imports from Japan increased during the period considered, reaching [57 % – 80 %] in the review investigation period. The market share of the imports from Japan under the inward processing system increased as well during the period considered and reached [34 % – 47 %] during the review investigation period.

• (204) The average price of the imports from Japan increased by 5 % between 2018 and 2020. In the review investigation period, the prices return to similar levels to 2018.

5.4.   Economic situation of the Union industry

5.4.1.   General remarks

• (205) The assessment of the economic situation of the Union industry included an evaluation of all economic indicators having a bearing on the state of the Union industry during the period considered.

5.4.2.   Production, production capacity and capacity utilisation

• (206) The total Union production, production capacity and capacity utilisation developed over the period considered as follows:

Table 7

Production, production capacity and capacity utilisation

	2018	2019	2020	Review Investigation period
Production volume (tonnes)	[1 181 – 1 750 ]	[1 379 – 2 043 ]	[1 971 – 2 921 ]	[1 963 - 2 909 ]
Index (FY2018 = 100)	100	117	167	166
Production capacity (tonnes)	[2 656 – 3 936 ]	[2 656 – 3 936 ]	[2 656 – 3 936 ]	[2 656 – 3 936 ]
Index (FY2018 = 100)	100	100	100	100
Capacity utilisation (%)	[37 -55 ]	[43 -64 ]	[62 -91 ]	[61 -91 ]
Index (FY2018 = 100)	100	117	167	166
Source: Questionnaire reply of the Union producer	Source: Questionnaire reply of the Union producer	Source: Questionnaire reply of the Union producer	Source: Questionnaire reply of the Union producer	Source: Questionnaire reply of the Union producer

• (207) Production volume increased by 67 % between 2018 and 2020. In the review investigation period the production volume remained at similar levels to the production volume in 2020. The production volume increased following the change in the business strategy of the applicant that took over the assets of the previous Union producer of aspartame in 2019 as explained in recital (37).

• (208) The production capacity of the Union industry was maintained at the same level during the period considered, as the applicant took over the production assets of the previous Union producer as explained in recital (37).

• (209) The capacity utilisation increased in line with the increase of the annual production volume described in recital (207), by 66 %.

5.4.3.   Sales volume and market share

• (210) The Union industry’s sales volume and market share developed over the period considered as follows:

Table 8

Sales volume and market share

	2018	2019	2020	Review Investigation period
Sales volume on the Union market (tonnes)	[699 – 1 035 ]	[814 – 1 206 ]	[962 – 1 425 ]	[1 009 – 1 496 ]
Index (FY2018 = 100)	100	116	138	144
Market share	[40 -59 ]	[16 -24 ]	[22 -33 ]	[22 -33 ]
Index (FY2018 = 100)	100	41	55	56
Source: Questionnaire reply of the Union producer and Eurostat	Source: Questionnaire reply of the Union producer and Eurostat	Source: Questionnaire reply of the Union producer and Eurostat	Source: Questionnaire reply of the Union producer and Eurostat	Source: Questionnaire reply of the Union producer and Eurostat

• (211) The sales volume of the Union industry on the Union market had an increasing trend during the whole period considered. Overall, the sales volume increased by 44 %.

• (212) Despite the increase in the sales volume, the market share of the Union industry decreased by 44 % over the period considered, reaching [22 % – 33 %] in the review investigation period.

5.4.4.   Growth

• (213) As stated above, the sales volume of the Union industry increased by 44 % over the period considered. However, the Union consumption increased even more, by 157 % over the period considered and as a result the market share of the Union industry decreased by 44 %.

5.4.5.   Employment and productivity

• (214) Employment and productivity developed over the period considered as follows:

Table 9

Employment and productivity

	2018	2019	2020	Review Investigation period
Number of employees	[76 -112 ]	[63 -94 ]	[65 -96 ]	[68 -100 ]
Index (FY2018 = 100)	100	84	86	89
Productivity (tonnes/FTE)	[13 -19 ]	[18 -27 ]	[25 -37 ]	[24 -36 ]
Index (FY2018 = 100)	100	139	194	186
Source: Questionnaire reply of the Union producer	Source: Questionnaire reply of the Union producer	Source: Questionnaire reply of the Union producer	Source: Questionnaire reply of the Union producer	Source: Questionnaire reply of the Union producer

• (215) The number of employees fluctuated during the period considered. It first decreased by 16 % in 2019 as compared to 2018 when the applicant took over the assets and certain employees of the former Union producer of aspartame as explained in recital (37). The gradual increase in the number of employees from 2019 to the review investigation period occurred at the same time as increasing production and sales levels for the Union industry.

• (216) Productivity increased by 94 % between 2018 and 2020 reflecting the increase in production volume as explained in recital (207) and then decreased by 4 % in the review investigation period as compared to 2020. Overall, the productivity increased by 86 %.

5.4.6.   Magnitude of the dumping margin and recovery from past dumping

• (217) The dumping margin during the review investigation period was significantly above the de minimis level as stated in recital (156) and the volume and market share of the imports from the PRC as described in Tables 3 and 4 were still significant during the period considered.

• (218) However, despite the fact there was still dumping from the PRC, the Union industry managed to recover from past dumping practices, notably because of the new business strategy of the sole Union producer and increased domestic consumption.

5.4.7.   Prices and factors affecting prices

• (219) The weighted average unit sales prices of the Union producer to unrelated customers in the Union developed over the period considered as follows:

Table 10

Sales prices and cost of production in the Union (EUR/tonne)

	2018	2019	2020	Review Investigation period
Average unit sales price in the Union	[10 699 – 16 316 ]	[11 954 – 18 229 ]	[12 293 – 18 747 ]	[12 051 – 18 377 ]
Index (FY2018 = 100)	100	112	115	113
Unit cost of production Index (FY2018 = 100)	100	81	73	71
Source: Questionnaire reply of the Union producer	Source: Questionnaire reply of the Union producer	Source: Questionnaire reply of the Union producer	Source: Questionnaire reply of the Union producer	Source: Questionnaire reply of the Union producer

• (220) The Union industry’s average unit sales price to unrelated customers increased by 13 % over the period considered.

• (221) The unit cost of production decreased by 29 % over the period considered. This was due to an increase in efficiency concerning the consumption of certain key raw materials and lower prices for electricity and gas.

5.4.8.   Labour costs

• (222) The average labour costs of the Union producer developed over the period considered as follows:

Table 11

Average labour costs per employee

	2018	2019	2020	Review Investigation period
Average labour costs per employee (EUR)	[55 774 – 85 056 ]	[61 652 – 94 019 ]	[59 792 – 91 182 ]	[54 112 – 82 521 ]
Index (FY2018 = 100)	100	111	107	97
Source: Questionnaire reply of the Union producer	Source: Questionnaire reply of the Union producer	Source: Questionnaire reply of the Union producer	Source: Questionnaire reply of the Union producer	Source: Questionnaire reply of the Union producer

• (223) The average labour costs per employee increased by 11 % in 2019 as compared to 2018 and then decreased by 12 % in the review investigation period as compared to 2019. Overall, the Union average labour costs per employee decreased by 3 %.

• (224) The fluctuation of the labour cost was due to changes in the mix of employees over the period considered.

5.4.9.   Inventories

• (225) Stock levels of the Union producers developed over the period considered as follows:

Table 12

Inventories

	2018	2019	2020	Review Investigation period
Closing stocks (tonnes)	[102 – 155 ]	[126 – 192 ]	[171 - 261 ]	[127 – 193 ]
Index (FY2018 = 100)	100	124	168	124
Closing stocks as a percentage of production	[7  % - 11  %]	[8  % – 12  %]	[7  % – 11  %]	[5  % – 8  %]
Index (FY2018 = 100)	100	106	101	75
Source: Questionnaire reply of the Union producer	Source: Questionnaire reply of the Union producer	Source: Questionnaire reply of the Union producer	Source: Questionnaire reply of the Union producer	Source: Questionnaire reply of the Union producer

• (226) The volume of inventories increased by 68 % from 2018 to 2020 and then decreased by 26 % to the end of the review investigation period. Overall, the stocks level increased by 24 %.

• (227) Closing stocks as a percentage of production volume increased by 6 % in 2019 as compared to 2018 and then decreased by 29 % by the end of the review investigation period as compared to 2019.

5.4.10.   Profitability, cash flow, investments, return on investments and ability to raise capital

• (228) Profitability, cash flow, investments and return on investments of the Union producer developed over the period considered as follows:

Table 13

Profitability, cash flow, investments and return on investments

	2018	2019	2020	Review Investigation period
Profitability of sales in the Union to unrelated customers (% of sales turnover) Index (FY2018 = 100)	- 100	-16	110	112
Cash flow (EUR)	[-12 979 ; -8 511 ]	[-3 690 ; -2 420 ]	[249 – 380 ]	[443 – 676 ]
Index (FY2018 = 100)	- 100	-28	103	105
Investments (EUR)	[292 – 445 ]	[1 302 – 1 985 ]	[1 476 – 2 250 ]	[1 750 – 2 669 ]
Index (FY2018 = 100)	100	446	505	599
Return on investments (%)	[-37 ; -25 ]	[- 224 ; - 147 ]	[19 – 28 ]	[6 – 10 ]
Index (FY2018 = 100)	- 100	- 599	176	126
Source: Questionnaire reply of the Union producer	Source: Questionnaire reply of the Union producer	Source: Questionnaire reply of the Union producer	Source: Questionnaire reply of the Union producer	Source: Questionnaire reply of the Union producer

• (229) The Commission established the profitability of the Union producer by expressing the pre-tax net profit or loss of the sales of the like product to unrelated customers in the Union as a percentage of the turnover of those sales.

• (230) The profitability situation of the Union industry improved over the period considered moving from a substantial loss in 2018 to a lower loss in 2019 and a profit in the review investigation period. However, the Union industry did not manage to achieve the target profit margin specified in the original investigation ³⁴.

• (231) The net cash flow is the ability of the Union producers to self-finance their activities. Cash flow was negative in 2018 when the Union industry producer went into bankruptcy. As the new Union producer, the applicant, increased sales, cash flow gradually improved from 2019 to the RIP.

• (232) There were limited investments in 2018, the year that the former Union producer entered bankruptcy. However, under new ownership investments increased by 346 % in 2019 and then increased steadily reaching a 499 % increase compared to 2018 in the RIP. The investments were mainly made to replace old equipment with new, more efficient equipment.

• (233) The return on investments is the profit or loss in percentage of the net book value of investments.

• (234) When the applicant acquired the production site in 2019 it implemented a comprehensive restructuring program, with substantial capital investments by HSWT and its shareholders for the following years, in order to try to make the plant profitable again.

• (235) The return on investments was substantially negative in 2018 and again in 2019. The return on investment improved in 2020 and the review investigation period.

5.5.   Conclusion on injury

• (236) Most injury indicators, such as production, capacity utilisation, unit cost of production, sales volumes, sales prices, labour costs, productivity, profitability, employment investments, return on investments and cash flow developed positively and do not indicate material injury.

• (237) Based on the above, the Commission concluded that the Union industry did not suffer material injury within the meaning of Article 3(5) of the basic Regulation during the review investigation period.

• (238) However, given Chinese imports continued at substantial volumes and the Union industry enjoyed profits only in 2020 and the RIP but still below the target profit level identified in the original investigation, the Union industry was not able to fully recover from the previous injurious dumping within the meaning of Article 3(5) of the basic Regulation by the review investigation period.

• (239) Changmao claimed that the Commission has not received any information from the applicant on the reasons for Hyet Sweet SAS’s bankruptcy. Furthermore, Changmao claimed that the Commission has not received any information on Hyet Sweet Group’s substantial and self-injurious imports in the Union of aspartame and raw materials from the PRC and Japan and on why both Hyet Sweet and HSWT groups did not submit such information to the Commission while HSWT continues to argue that injury has been caused by imports of aspartame from the PRC.

• (240) The Commission concluded above that the Union industry did not suffer material injury within the meaning of Article 3(5) of the basic Regulation during the review investigation period. Therefore, the reasons for Hyet Sweet SAS’s bankruptcy are not relevant for the current investigation. Furthermore, as explained in recital (176), Hyet Sweet Group is not involved any more in the production of aspartame in the Union and is not related to HSWT. Therefore, the Commission can only encourage unrelated importers to cooperate in the investigation. Moreover, HSWT has provided information in the questionnaire reply regarding the purchases of raw materials and the investigation did not reveal that the purchases of the raw materials caused injury. Changmao failed to explain why the imports of raw materials from the PRC and Japan would be self-injurious or submit any evidence in this regard. Therefore, these claims were rejected.

• (241) Changmao argued that it was doubtful whether HSWT produced aspartame rather than purchasing a large number of finished and semi-finished products, mainly from Ajinomoto Inc. and certain Chinese companies. It was stated that according to HSWT’s 2019 annual report, HSWT purchased a lot of finished products, and there was a big change in the cost data compared with the data before the bankruptcy of Hyet Sweet SAS.

• (242) As stated in recital (207), the investigation revealed that HSWT manufactured aspartame during the period considered. Furthermore, the investigation did not reveal any purchases of aspartame from the PRC or Japan. As stated in recital (221), the unit cost of production decreased by 29 % over the period considered due to an increase in efficiency concerning the consumption of certain key raw materials and lower prices for electricity and gas. Therefore, the claim was rejected.

• (243) In their comments following final disclosure, Changmao stated that certain essential information was not disclosed properly by the Commission or HSWT such as (1) the volume of imports of aspartame from the PRC and Japan, (2) the volume of imports of aspartame from the PRC and Japan under inward processing system, (3) the market shares (4) average prices of aspartame imports originating in the PRC and Japan, (5) whether Hyet Sweet SAS was officially dissolved at the moment of the initiation of the expiry review, (6) the asset purchase agreement between HSWT and Hyet Sweet SAS, (7) the cooperation plan agreement between HSWT and Hyet Sweet SAS and (8) the stock evaluation and management accounts of HSWT. Changmao also asked the Commission to disclose the methodology for creating the ranges.

• (244) The Commission could not disclose the data regarding volume of imports, market share and import prices from the PRC and Japan as it is market sensitive and confidential under Article 19 of the basic Regulation given the limited number of the parties operating on the Union market (one Union producer, one Japanese exporter, two predominant Chinese exporters). The disclosure of this information could allow parties to calculate back company-specific confidential data. The Commission provided this information in ranges and indexes which gave sufficient meaningful information to all interested parties to understand the Commission’s analysis and conclusions and provide comments in this regard. The data was also provided in the form of meaningful trends so that all interested parties could defend their interests. The Commission could not disclose the method for creating the ranges as this would allow the parties to retrieve the exact numbers from the ranges.

• (245) Regarding whether Hyet Sweet SAS was officially dissolved at the moment of the initiation of the expiry review, no explanation was provided as to why this information was relevant for the current expiry review investigation. In any event, as stated in recital (37), Hyet Sweet SAS stopped manufacturing aspartame in the Union in 2018 and entered into bankruptcy. Finally, as regard the other three documents requested by Changmao, these documents are confidential by nature and cannot be disclosed to parties under Article 19 of the basic Regulation. The Commission provided detailed information with regard to Hyet Sweet SAS, which allow interested parties to understand the factual situation without disclosing confidential information. The level of disclosure allowed parties to fully exercise their right of defence. Therefore, these claims were rejected.

• (246) Changmao also claimed that the Commission’s conclusion that the Union industry did not suffer material injury was wrong as there was no assessment on the impact of the increase in low priced imports from Japan during the period considered.

• (247) The Commission disagreed with this claim. The injury determination involves an examination of the situation of the Union industry regardless of its cause. The Commission found that the industry did not suffer material injury and therefore it was not appropriate to assess the cause of (inexistent) injury. Absent injury, imports for Japan were of course not relevant for the determination of likelihood of recurrence of injury should measures on imports from the PRC be allowed to lapse. It should also be noted that imports from Japan appeared to have replaced imports from the PRC subject to the current measures. Should measures be allowed to lapse, imports from Japan are likely to be replaced by imports from the PRC made at lower prices. The claim was therefore rejected.

6. LIKELIHOOD OF RECURRENCE OF INJURY

• (248) The Commission concluded in recitals (236) and (237) that the Union industry did not suffer material injury during the review investigation period, although it had not been able to fully recover from the material injury previously suffered. Therefore, the Commission assessed, in accordance with Article 11(2) of the basic Regulation, whether there would be a likelihood of recurrence of material injury caused by the dumped imports of aspartame from the PRC, if the measures were allowed to lapse.

• (249) For the likelihood of recurrence of material injury caused by the dumped imports of aspartame from the PRC, the Commission examined the production capacity and spare capacity in the PRC, the likely price levels of imports from the PRC in the absence of anti-dumping measures and their impact on the Union industry, including the level of undercutting in the absence of anti-dumping measures.

• (250) As explained in recitals (164) to (173), based on the spare capacity in the PRC and the high attractiveness of the Union market for Chinese exporting producers, there is a strong likelihood that the expiry of the anti-dumping measures would result in an increase of exports to the Union.

• (251) Regarding the likely effect of such imports, the Commission examined their likely price levels should measures be allowed to lapse. In this regard, the Commission considered the import price levels during the review investigation period without anti-dumping duty to be a reasonable indication. On this basis, the Commission established significant undercutting of the Union industry prices of [25 % – 50 %].

• (252) In the absence of the measures, it is likely that the market share of Chinese producers would increase significantly. In the short term, as the Union producer is a rather small producer as compared to the Japanese exporter, the Chinese exporters would likely take over the market share of the Union industry as the Union industry would not be able to survive the price pressure from the Chinese exporters and thus the economic situation of the Union industry would quickly deteriorate resulting in material injury.

• (253) On this basis, it is concluded that the absence of measures would in all likelihood result in a significant increase of dumped imports from the PRC at injurious prices and material injury would be likely to recur.

• (254) In their comments following final disclosure, Changmao claimed that because there was no spare capacity in the PRC (see recital (168)), the conclusions of the Commission regarding the likelihood of recurrence of injury due to likelihood of increase of exports of aspartame to the Union in the absence of the antidumping measures were not based on positive evidence, nor involved an objective examination in accordance with Article 3(2) of the basic Regulation as well as Article 3.1 of Anti-dumping Agreement.

• (255) As stated in recital (169), after taking into account the decrease in production capacity of Changmao and Shaoxing Yamei Biochemistry Co. Ltd there would still be spare capacity which could cover a significant share of the total consumption of aspartame in the Union. Furthermore, the findings of the likelihood of recurrence of injury were not based solely on the volume of spare capacity in the PRC but also on the likely price levels of imports from the PRC in the absence of anti-dumping measures and their impact on the Union industry, including the level of undercutting, which Changmao did not dispute. Even if there is no spare capacity in the PRC, the Union market is more attractive than third markets. Therefore, the Chinese exporting producers have an incentive to redirect volume from third markets to the Union as concluded in recital (173). Therefore, the Commission’s conclusions were based on the positive evidence collected during the investigation and constitute an objective examination, in accordance with Article 3(2) of the basic Regulation, as well as Article 3.1 of the Anti-dumping Agreement. The claim was rejected.

• (256) Changmao claimed that when assessing the likelihood of recurrence of injury the Commission should also assess the injurious effect of the commercial disputes between the former Union producer and HSWT and the reasons for the bankruptcy of Hyet Sweet SAS. Furthermore, Changmao stated that HSWT failed to disclose several documents/information. Changmao stated that only such complete disclosure could reflect how the cooperation and subsequent conflict between Hyet Group and HSWT influenced the situation and state of the Union industry.

• (257) The Commission disagreed with these claims. The analysis of likelihood of recurrence of injury that needs to be carried out pursuant to Article 11(2) of the basic Regulation is focused on how the injury picture at present (in this case a situation of no material injury) would evolve if measures were allowed to lapse. In such an assessment the causal link between dumping and injury, established in the original investigation, would exist and need not be established anew ³⁵. Consequently, this assessment in this case is centred on the dumped imports of aspartame from the PRC and the effect of the removal of measures on the situation in the future. Therefore, these claims were rejected.

• (258) In their comments following final disclosure, Changmao claimed that the Commission should also assess the likelihood of recurrence of self-inflicted injury to the Union industry. In particular, Changmao claimed that because of HSWT’s small investment in land, building and other assets as well as low capitalization, HSWT’s shareholders have not taken any commercial risk regarding the ongoing operations of the aspartame plant and made no great efforts to the viable and continuing aspartame production operations in the Union. Furthermore, given HSWT’s low profitability and dependence on financial means for raw materials supplies, HSWT might go bankrupt at any moment. Changmao also stated that as HSWT received considerable subsidies from local government, it might lack motivation and dynamics. Changmao considered that the support from the local government distorted the Union market price and production cost for aspartame. Furthermore, labour disputes and trade union strikes against the former Union producer, Hyet Sweet SAS, might have been a major cause of self-inflicted injury and therefore, if the new Union producer was still facing the pressure of large imports from Japan together with labour struggle, it was likely that it would go bankrupt in the future.

• (259) The Commission noted that those claims were simply baseless speculations. As explained in recital (51), Hyet Sweet SAS’s assets were sold under a bankruptcy procedure. The sale of these assets was made at a lower value than their book value which explains the low capitalization of HSWT. Furthermore, as stated in recital (232), the investment of HSWT increased by 499 % in the RIP as compared to 2018 and these investments were made to replace old equipment with new, more efficient equipment. This clearly indicates commitment on the part of HSWT to maintain production of aspartame in the Union. Furthermore, it is not clear from Changmao’s submission what dependence on financial means for raw materials supplies means in this case. Moreover, as indicated in recital (230) the profitability situation of the Union industry improved over the period considered moving from a substantial loss in 2018 to a profit in the review investigation period. Furthermore, Changmao simply speculates when claiming that the subsidies allegedly received by HSWT have a demotivating effect on HSWT. Changmao’s claim regarding the distorting effect of the alleged subsidies received by HSWT on the Union market price and production cost for aspartame is not based on any concrete evidence. Furthermore, government intervention within the meaning of Article 2(6a)(b) of the basic Regulation that the Commission demonstrated in recitals (87) to (108), and baseless allegations of the distorting effect on Union market price and production cost for aspartame of subsidies received by HSWT, are not comparable. Finally, the fact that the former Union producer was faced with labour disputes and trade union strikes does not mean that the current Union producer will face such issues. Therefore, the claims were rejected.

7. UNION INTEREST