Commission Implementing Regulation (EU) 2024/2415 of 12 September 2024 imposing a definitive anti-dumping duty and definitively collecting the provisional duty imposed on imports of certain alkyl phosphate esters originating in the People’s Republic of China

• (200) CPCIF refuted that the imports of APE from China caused significant price suppression for the Union industry. CPCIF indicated that although the increased price level was on average around 33 % lower than the Union prices in the IP, Chinese imports reflected the market trend of cost and price increase and the abnormally higher price of the Union producers was mainly caused by other factors that were not representative of ordinary market conditions, such as the Union industry’s high energy and labour cost following Covid-19 and the Russian military aggression to Ukraine.

• (201) CPCIF considered that the price undercutting of Chinese imports of APE did not have any suppressive or depressive effects on the Union prices, which continued to grow throughout the period considered. The prices from China did not influence in any way the prices set by Union producers, evidenced by the fact that in 2022 the Union industry could increase the price of APE above the level of the trend. The Union producers were able to maintain their prices well above their production costs except for the IP and thus the marginal price undercutting of the Chinese imports had no effect on the ability of the Union producers to increase their prices until 2022.

• (202) The complainants responded to these claims, stating that there is a large price difference between the Chinese import price and the Union industry’s price, which should be considered a decisive injury factor.

• (203) At the outset, the Commission notes that undercutting and price suppression are two independent price effects listed in Article 3(3) of the basic Regulation as alternatives, which may or may not occur concurrently in a given case. As set out in recitals (398) and (440) to (441) of the provisional Regulation, the investigation found that the Union industry was unable to pass on the significant raw material cost increase. With a market share of 80 %, the Chinese imports were evidently able to set the market price of the product under investigation. While the Union industry’s unit cost of production increased by 42 %, it was able to increase its prices by only 36 %. Therefore, the Union industry could not offset the cost increase it faced due to the price suppression caused by the Chinese imports. The fact that the average import price from China in 2020 and 2021 was not undercutting the Union industry’s price and the Union industry could accumulate profits is mainly due to the exceptional Covid-19 crisis and the high freight costs during that period. However, from 2022 onwards, when the market returned to the before COVID situation, the Chinese imports started to undercut the Union industry’s prices again and the Union industry’s profitability turned into a loss. Therefore, the Chinese imports did have an effect on the ability of the Union producers to set their price and the claim was therefore rejected.

• (204) Shekoy Europe and Quimidroga argued that the data on Union consumption, import volumes from China, the market share these imports represent, and the import prices are biased because of the inclusion of TEP in the statistics while the Union industry only produces TCPP.

• (205) As set out in recitals (27) to (57), the Commission rejected the exclusion of TEP from the product scope. Therefore, the analysis on imports is done on an aggregated basis for all the product types falling under the product under investigation. Moreover, as stated in recital (377) of the provisional Regulation, the price of both product types followed the same trend.

• (206) Quimidroga argued that the undercutting calculation set out in recitals (378) and (379) of the provisional Regulation is solely based on Chinese imports of TCPP and sales of the Union industry of TCPP.

• (207) The Commission confirmed that as the Union industry did not produce TEP, the price comparison was based on the sales of TCPP only. A price comparison per product type was considered to be the most reasonable, considering the difference in prices between different product types. Therefore, the claim had to be rejected.

• (208) Absent any further comments with respect to the imports from the country concerned, the conclusions set out in recitals (369) to (379) of the provisional Regulation were confirmed.

4.5.   Economic situation of the Union industry

4.5.1.   General remarks

• (209) Quimidroga argued that the macroeconomic indicators in the provisional Regulation only related to the production of TCPP, drawing an asymmetric comparison with imports from China including both TCPP and TEP.

• (210) As stated in recital (191), the Commission concluded that TEP is part of the product scope and that even though the Union industry did not produce this product type, the Commission found that TEP is a like product to TCPP. Pursuant to Article 4(1) of the basic Regulation, the Union industry are the Union producers as a whole of the like products, which would thus include the producers of TCPP.

4.5.2.   Macroeconomic indicators

4.5.2.1.   Production, production capacity and capacity utilisation

• (211) In the absence of any comments with respect to the production, production capacity and capacity utilisation, the conclusions set out in recitals (384) to (386) of the provisional Regulation were confirmed.

4.5.2.2.   Sales volume and market share

• (212) In the absence of any comments with respect to the sales volume and market share, the conclusions set out in recitals (387) to (389) of the provisional Regulation were confirmed.

4.5.2.3.   Growth

• (213) Quimidroga argued that it was not clear from recital (390) of the provisional Regulation if the decrease in Union consumption included TEP. Since TEP is included in the product concerned, all the findings on injury included all product types.

• (214) In the absence of any further comments with respect to the growth, the conclusions set out in recital (390) of the provisional Regulation were confirmed.

4.5.2.4.   Employment and productivity

• (215) Quimidroga argued that the impact on employment was negligible.

• (216) As set out in recital (392) and (393) of the provisional Regulation, the number of employees producing the product concerned first increased but showed a decrease from 2021 on. Over the full period considered, a decrease is visible. The fact that the absolute figure in employment loss was limited, did not change the conclusions on the trend seen during the period considered.

• (217) Absent any further comments with respect to employment and productivity, the conclusions set out in recitals (391) to (393) of the provisional Regulation were confirmed.

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

• (218) Purinova argued that the Commission failed to take into account the termination of the anti-dumping investigation on imports of TCPP originating in China conducted in 2010 ¹⁸. That investigation was terminated as it did not reveal any circumstances that such termination would not be in the interest of the Union.

• (219) The investigation conducted in 2010 was terminated following the withdrawal of the complaint by the complainants and the Commission did not find any reason showing that the termination would not be in the Union interest. The current situation is different than the one in 2010: there has been no request for withdrawal and the investigation has established existence of dumping and of material injury and found that imposition of the measures would not be against the Union’s interest.

• (220) Moreover, and in any event, the investigation period for that investigation was 1 July 2009 to 30 June 2010, which is 13 years before the investigation period of the current investigation. The economic interest and situation of the Union market players cannot be compared to the findings made by the Commission at that time, due to change of various economic factors determining dumping and injury during these years.

• (221) In the absence of any further comments with respect to the magnitude of the dumping margin, the conclusions set out in recitals (394) and (395) of the provisional Regulation were confirmed.

4.5.3.   Microeconomic indicators

4.5.3.1.   Prices and factors affecting prices

• (222) Following provisional disclosure, Quimidroga claimed that the Commission should have made it clear that the analysis on prices in Table 8 and recital (397) of the provisional Regulation, which is based on TCPP, is compared to the import volumes of TCPP and TEP, which rendered the Commission’s findings in recital (397) of the provisional Regulation misleading.

• (223) At the outset, the Commission notes that the findings of dumping, injury and causation, summarised in the provisional Regulation, were based on the data for the product under investigation as a whole and not its subsets (product types). Nothing in that Regulation suggests otherwise. It should be noted that Table 8 and recital (397) of the provisional Regulation only assessed the trend of the Union industry sales prices on the Union market and the Union industry’s unit cost of production and did not provide an analysis of the Chinese import sales. The findings made by the Commission in recital (397) of the provisional Regulation regarding the effect of the Chinese price trend during the period considered on the Union industry prices is not misleading. As set out in recital (377) of the provisional Regulation, even though the import prices of TCPP and TEP were not the same, the price of the two product types followed the same trend during the period considered, i.e. after an increase from 2019 to IP, they decreased sharply. Therefore, the claim has to be rejected.

• (224) Following definitive disclosure, Quimidroga argued that the Commission should have considered the price difference between TCPP and TEP as an important and relevant factor in the product scope and competition analysis and that the Commission should have performed a proper price effects analysis of the prices of TEP to ensure proper price comparability.

• (225) The Commission acknowledged in recital (377) of the provisional Regulation that the import price of TCPP was lower than the import price of TEP, but that the price of both product types followed the same trend, i.e. they showed an increase during the period considered. To perform a fair price comparison between the imported product and the product sold by the Union industry, the Commission made an undercutting and underselling calculation on the basis of the product control number (‘PCN’) in which these price differences were taken into account.

• (226) The fact that a price difference exists between the two product types has never been contested. As set out in recitals (39) and (46) of the provisional Regulation, the substitutability between the two product types because of their difference in price is largely mitigated by the fact that less TEP is needed to make the end-product as flame-retardant as when using TCPP. When considering that about 1,8 kg of TCPP is needed to replace 1 kg of TEP, a price difference of 60 % makes that the two product types are similarly priced to the end user in kg of downstream product and were found to be in direct competition with each other. With these coefficients, which have not been contested by the interested parties, the cost of TEP would even be lower than that of TCPP in the end-product.

• (227) Moreover, the use of PCNs is exactly to account for such price differences between different product types. While the injury and causality analysis are done on the basis of aggregated information on imports and production and sales, the dumping, undercutting, and underselling calculations warrant a recognition of a possible variation in prices within the subset of the product under investigation. Therefore, the claim was rejected.

• (228) In the absence of any further comments with respect to prices and factors affecting prices, the conclusions set out in recitals (396) to (398) of the provisional Regulation were confirmed.

4.5.3.2.   Labour costs

• (229) In the absence of any comments with respect to the labour costs, the conclusions set out in recitals (399) and (400) of the provisional Regulation were confirmed.

4.5.3.3.   Stocks

• (230) In the absence of any comments with respect to the stocks, the conclusions set out in recitals (401) and (402) of the provisional Regulation were confirmed.

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

• (231) Following provisional disclosure, CPCIF argued that the Union industry remained profitable throughout the period considered until 2022, depicting a strong industry. The loss of the Union industry during the IP was not caused by the Chinese imports but was the result of exceptional market circumstances due to the costs of energy and labour. Purinova claimed that the loss in profitability was a consequence of the natural action of market forces and economically erroneous decisions by the complainants, rather than due to the Chinese imports. It further argued that the Union industry did not adapt to the market conditions after the exceptional situation with extraordinarily high profit levels in 2021 and thus lost its competitiveness. Quimidroga also addressed this sharp decline in production volume stating that it failed to understand why the production volumes declined, while the Union industry was still profitable in 2022.

• (232) The complainants argued that the profitability levels were positively affected by long-term contracts covering a significant part of their sales that partially sheltered some of the Union producers from the injurious effects of dumped imports for some time.

• (233) The Commission found that the Union industry indeed reached an exceptionally high profit margin in 2021. However, this margin quickly eroded in 2022 and the IP, resulting in a loss (- 6 %). This coincided with an increase in Chinese imports of 32 percentage points from 2021 to IP at undercutting prices in 2022 and the IP. Due to these increased low-priced imports, the Union industry could not compete and dropped its production volume by 72 percentage points over the period 2021 to IP, more than halving its market share. This shows that there was a clear correlation between the increased volume of dumped imports from China and the decrease in sales and profits by the Union industry. Therefore, the claim of CPCIF and Purinova had to be rejected.

• (234) According to Shekoy Europe, Table 11 of the provisional Regulation showed very limited investments by the Union industry, despite the high profitability levels in 2021 and 2022. This showed that in spite of the disbalance between the Union demand and production, Union producers have not been investing in new capacity or processes.

• (235) The level of investments was indeed found to be limited during the period considered and were mainly related to maintenance and not to expand production. This was due to the presence of dumped Chinese imports on the market, which significantly affected the utilisation of the production capacity of the Union industry, which dropped by 39 percentage points over the period considered to 30 % in the IP. With the increasing market penetration of the Chinese imports, the Union industry was not able to fully utilise its existing production capacity, let alone to expand its capacity. Therefore, the claim of Shekoy Europe had to be rejected.

• (236) Quimidroga repeated its claim that the data on profitability, cash flow, investments, and return on investments only includes sales of TCPP and argued that the profitability figure in Table 11 of the provisional Regulation is calculated incorrectly when compared with Table 8 of that Regulation.

• (237) The Commission confirmed that the Union industry only produced TCPP and found that the Union TCPP industry was – 6 % loss making during the investigation period as shown in Table 11 of the provisional Regulation. This profitability is calculated on the basis of cost of goods sold and other costs whereas Table 8 of the provisional Regulation compares average sales prices with average unit cost of production. Consequently, the profitability shown in Table 11 cannot be directly deduced from Table 8. Therefore, the comment of Quimidroga had to be rejected.

• (238) Following definitive disclosure, Quimidroga reiterated its claim that the two tables should be reconcilable if any imports of TEP made by the Union industry were excluded.

• (239) As set out in recital (237) above, the calculation methodologies behind the two tables are different. The unit cost of production is calculated differently than the cost of goods sold and other costs. This is the reason why Quimidroga’s claim is incorrect. None of the tables included imports of the product under investigation. Any imports of the product under investigation were accounted for in Table 3.

• (240) In the absence of any further comments with respect to profitability, cash flow, investments, return on investments and ability to raise capital, the conclusions set out in recitals (403) to (409) of the provisional Regulation were confirmed.

4.5.4.   Conclusion on injury

• (241) Quimidroga claimed that the comparison on injury was made on an inconsistent and asymmetric basis, since imports included TEP and TCPP while the Union industry only produced TCPP.

• (242) The above claim is fundamentally based on the premise that TEP is not part of the product scope. As TEP is part of the product concerned, the assessment of injury was based on both imports of TEP and TCPP. Both product types competed with each other on the Union market, despite the fact that the Union industry only produced TCPP. Recital (377) of the provisional Regulation has clarified that the price of the two product types has been different, however that they did follow the same trend in the period considered. The difference in price between the two product types did not affect any of the other main injury indicators and therefore the Commission confirmed the conclusions set out in recitals (410) to (418).

• (243) Following definitive disclosure, Quimidroga maintained its claim, arguing that the Commission did not properly assess the non-production of TEP by the Union industry. The injury determination should only be valid for TCPP as the Union industry did not provide any reliable, verifiable, and objective data on how imports of TEP have caused material injury to the Union industry, especially since the Union industry stopped producing TEP 20 years ago.

• (244) Quimidroga further argued a contradiction between recitals (207) and (223), where on the one hand the dumping, undercutting, and underselling calculations were done per product type and on the other hand that the findings of dumping, injury, and causation were based upon the product under investigation as a whole. According to the company, the injury assessment, even if it is performed on an aggregated basis, necessitates data input in relation to each product type, especially because there are only two product types.

• (245) Since the Commission decided to not exclude TEP from the product scope, the injury determination, just like the dumping determination, was based on the product as a whole. The Commission found that the two product types were in direct competition with each other in a majority of the downstream uses and therefore, it was found that both product types caused material injury to the Union industry.

• (246) As set out in recitals (225) to (227), the dumping, undercutting, and underselling calculations are done on the basis of PCNs to take into account a possible variation in prices between product types within the subset of the product under investigation. On the other hand, the injury assessment analyses the effect of all the imports of the product under investigation from the country concerned, where a price differentiation between product types is not a determining factor when the different product types are found to be in direct competition with each other. Therefore, the claim was rejected.

5. CAUSATION

5.1.   Assessment

• (247) In its provisional findings, the Commission distinguished and separated the potential effects of all known factors on the situation of the Union industry from the injurious effects of the dumped imports. Aside from the dumped imports, these factors were: imports from third countries; the export performance of the Union industry; the Union industry’s investment costs; the consumption and claimed market rebalancing effect; the increased costs of raw materials and energy as well as inflation in the Union; and the lack of substitutability between TCPP and TEP. The effect of these other factors on the Union industry’s injury was however found to be only limited, if any, and did not attenuate the causal link between the dumped imports and the material injury found.

5.2.   Interested parties’ comments after provisional measures.

• (248) Quimidroga claimed that the analysis on the causal link between the dumped Chinese imports and the material injury of the Union industry is critically flawed, because of the inclusion of TEP in the analysis.

• (249) Following pre-disclosure, Prochema claimed that TEP could not have caused injury because the complainants purchase TEP themselves from Union importers or directly from Chinese exporting producers, TEP was not placed on the European market at a price lower than its cost value, and the price of TEP was always significantly higher than that of TCPP, even compared to the complainants’ TCPP prices offered on the European market. Therefore, TEP could not have been dumped or have caused injury to the Union market.

• (250) The above claims were not substantiated with evidence. Furthermore, they are based on the premise that TEP should not be part of the product scope.

• (251) As set out in recital (57) TEP is part of the product scope and its inclusion in the assessment is therefore justified. The investigation found that the Union industry sourced only limited volumes of TEP, less than 5 % of the Union consumption of APE, which could not have caused them injury. The Commission confirmed in recital (205) that the price of TEP was higher than the price of TCPP, but as found in recital (46) of the provisional Regulation, a small amount of TEP is needed to replace TCPP, which would partially compensate for the higher production cost and offset the price difference of TEP.

• (252) Following provisional disclosure, CFCIP reiterated its claim that if the Union industry did suffer any injury, this was the result of other factors than the imports from China, including but not limited to the return to ‘normal’ market conditions, increased costs of raw materials, higher energy prices, the existence of high inflation and labour cost. Additionally, Quimidroga argued that the annual report of two of the complainants referred to other factors influencing the company’s performance, such as the economic situation in the Union, the geopolitical situation in various regions neighbouring Europe, weak demand, exchange rate fluctuations, and a duty suspension.

• (253) The Commission assessed all other known factors that could have caused injury within the meaning of Article 3(7) of the basic Regulation and as indicated in recital (247). The comments submitted by the interested parties following the provisional disclosure did not bring new substantial elements or evidence which would have invalidated the conclusion set in the provisional Regulation. Therefore, the Commission confirmed the conclusions set out in recitals 419 to 448.

• (254) After definitive disclosure Quimidroga and CFCIP repeated their claim. CFCIP argued that the Chinese imports only started to undercut the Union industry’s prices from 2022 because of the exceptional market situation the Union industry found itself in, with high energy costs, a general economic downturn, and high inflation caused by the Russian aggression against Ukraine, while the Chinese producers were not affected by those factors.

• (255) In recitals (424) to (448) of the provisional Regulation, the Commission assessed other factors that could have caused injury to the Union industry, among which the increased costs of raw materials and energy and inflation in the Union. However, it did not find that any of these factors attenuated the causal link between the dumped Chinese imports and the injury suffered by the Union industry. CFCIP did not provide any further evidence to support its claim and the Commission rejected this claim.

• (256) Following the provisional disclosure Quimidroga claimed that the duty suspension for the CN codes under which the product concerned is imported into the Union might have aggravated the injurious situation of the Union industry, because the previously applicable common customs duty was suspended, and the product concerned come into the Union duty-free.

• (257) The Commission analysed this claim. It was found that the duty suspension could have only had a marginal effect on the injury of the Union producers, since the common customs duty on the product concerned was 6,5 %. In light of an average undercutting level of 34,6 % the duty suspension was found to not attenuate the causal link between the dumped Chinese imports and the material injury found. Therefore, this claim had to be rejected.

• (258) Following disclosure, CFCIP reiterated its claim that there is a lack of substitutability between TCPP and TEP. It repeated that these two product types are not alike and cannot be used interchangeably. Since the Union industry is only producing TCPP, imports of TEP could not have caused injury.

• (259) Since the CFCIP did not further substantiate this claim and did not provide evidence that could invalidate the findings made in recital (445) of the provisional Regulation, the Commission rejected the claim and confirmed its finding in recital (445).

• (260) Following definitive disclosure, CFCIP repeated this claim that the Union industry does not produce TEP, and TEP imported from China are not directly competing with TCPP sold by the Union industry on the same market. Moreover, TEP is 60 % more expensive than TCPP and could therefore not cause any injury to the Union industry producing and selling only TCPP.

• (261) As stated in recital (259), the Commission did not agree with this claim. The two product types were found to be substitutable and competing with each other in the most important end uses, which is the rigid foams. As explained in recital (46) of the provisional Regulation, a smaller amount of TEP is needed to replace TCPP to perform the same flame retardancy, which would partially compensate for the price of TEP. Therefore, the claim was rejected.

5.3.   Conclusion on causation

• (262) The conclusions reached in recitals (419) to (448) of the provisional Regulation were confirmed.

6. LEVEL OF MEASURES

6.1.   Injury margin

• (263) Following provisional disclosure, Quimidroga argued that the injury margin was wrongly calculated and was significantly inflated. To substantiate its claim Quimidroga provided an alternative injury margin calculation. However, the calculation that Quimidroga provided was based upon an incorrect CIF price. The injury margin calculation prepared by the Commission on the other hand used correct data. The calculation and the methodology used for this calculation was disclosed to all interested parties, including Quimidroga, and was not contested by any of the exporting producers. Therefore, the claim was rejected.

• (264) Following provisional disclosure, the exporting producer Anhui RunYue argued that the provisional Regulation did not provide evidence that any of the Union producers had committed to CO2 emission reduction investments and therefore the adjustment made pursuant to Article 7(2d) of the basic Regulation was speculative and should be verified in the future. If such investment would not be taking place, the Commission should reduce the anti-dumping duties accordingly.

• (265) Furthermore, Anhui RunYue claimed that since China has launched its own carbon emission trading scheme in 2017, Chinese producers also have future costs related to carbon emissions that are reflected in their export price. For a fair comparison, the addition of future emission costs should be also made on the Chinese export price.

• (266) The Commission did not consider the adjustment for future environmental costs as speculative. The one complainant who claimed this adjustment has provided substantive evidence that showed the current costs of Emission Trading Scheme certificates. Based on publicly available data a calculation was made for the costs of these certificates for the next five years.

• (267) Anhui RunYue did not provide any information on its costs related to carbon emissions. Therefore, the Commission could not assess whether this company indeed incurred such costs and the claim had to be rejected.

• (268) The complainants reiterated their disagreement with the Commission’s determination of the target profit, which was set at 6 % pursuant to Article 7(2c) of the basic Regulation.

• (269) The Commission found that although the complainants proposed a number of methodologies to set the target profit, as set out in recitals (455) to (463) of the provisional Regulation, based on the data available to the Commission, none of these methodologies would result in a level of profitability to be expected in the absence of dumped imports. The Union market was affected by the Chinese dumped imports already before the start of the period considered and has not been able to reach the minimum level of 6 %, set by Article 7(2c) of the basic Regulation. Additionally, they argued that one of the complainants was partially shielded from Chinese dumped imports during the last 10 years, due to a long-term contract it had with a large user.

• (270) However, the Commission considered that the profit of only one of the three complainants which was partially shielded from the distorting trade practice of the Chinese exporting producers could not be considered as representative of the Union industry’s profit expected under normal conditions of competition. Therefore, the basic profit was set at 6 %.

• (271) Following definitive disclosure, Kingspan argued that the TCPP sold by the complainants is compared with TCPP and TEP imported from China which vitiates the injury and causation analysis. In the injury margin calculation, which compares the price of imports per type, i.e. TCPP or TEP, with the target price of the complainants’ sales per type, i.e. TCPP, all imports of TEP are effectively ignored when calculating the injury margin. Kingspan claimed that the TEP market is separate from the TCPP market with significantly different prices and therefore the duty level for TEP is based on facts that are not related to the TEP market.

• (272) First, the duty level imposed is based upon the dumping margin, which compared Chinese export sales to the Union of both product types with a constructed normal value for both product types.

• (273) Second, as per normal practice, the injury margin calculation is done on a per PCN basis, that is comparing the different product types produced by both the exporting producers and the Union industry. Indeed, since the Union industry did not produce TEP, the injury margin calculation compared the sales of TCPP from the sampled Chinese exporting producers with the Union industry sales of TCPP. Therefore, contrary to the allegation from Kingspan, the Commission did not compare TEP imports with TCPP. This comparison resulted in a very substantial matching of around 85 % of the Chinese exports of the product concerned with the corresponding products on the Union side. If the argument submitted by Kingspan is that there should be a segmentation in the analysis, the Commission found no evidence on the file of such segmentation of the market between TEP and TCPP that would warrant a separate analysis of the two types of products. To the contrary, as explained in recital (445) of the provisional Regulation, TEP and TCPP share similar essential physical and chemical characteristics and are interchangeable for rigid foams applications which represent the majority of the total Union consumption. Therefore, this claim was rejected.

• (274) As provided by Article 9(4), third subparagraph, of the basic Regulation, and given that the Commission did not register imports during the period of pre-disclosure, it analysed the development of import volumes to establish if there had been a further substantial rise in imports subject to the investigation during the period of pre-disclosure described in recital (4) and therefore reflect the additional injury resulting from such increase in the determination of the injury margin.

• (275) Based on data from the Surveillance database ¹⁹, import volumes from China during the four weeks period of pre-disclosure were 78 % higher than the average import volumes in the investigation period on a four-week basis. On that basis, the Commission concluded that there had been a substantial rise in imports subject to the investigation during the period of pre-disclosure.

• (276) To reflect the additional injury caused by the increase of imports, the Commission decided to adjust the injury elimination level based on the rise in import volume, which is considered the relevant weighting factor based on the provisions of Article 9(4). It therefore calculated a multiplying factor established by dividing the sum of the volume of imports during the four weeks of the pre-disclosure period and the 52 weeks of the IP by the import volume in the IP extrapolated to 56 weeks. The resulting figure, 1.056, reflects the additional injury caused by the further increase of imports during the four weeks period of pre-disclosure. The provisional injury margins were thus multiplied by this factor.

• (277) In the absence of any further comments, recitals (449) to (470) of the provisional regulation is confirmed.

• (278) As described in recitals (274) to (276), the Commission revised the injury margins. Therefore, the final injury elimination level for the cooperating exporting producers and all other companies is as follows:

Company	Definitive injury margin
Anhui RunYue Technology Co., Ltd.	69,1  %
Nantong Jiangshan Agrochemical & Chemicals Limited Liability Co.	78,4  %
Shandong Yarong Chemical Co., Ltd.	79,0  %
Other cooperating companies not sampled listed in Annex	76,2  %
All other companies	79,0  %

6.2.   Conclusion on the level of measures

• (279) Following the above assessment, definitive anti-dumping duties should be set as below in accordance with the lesser duty rule in Article 7(2) of the basic Regulation:

Company	Definitive anti-dumping duty
Anhui RunYue Technology Co., Ltd.	53,1  %
Nantong Jiangshan Agrochemical & Chemicals Limited Liability Co.	68,4  %
Shandong Yarong Chemical Co., Ltd.	63,0  %
Other cooperating companies not sampled listed in Annex	61,3  %
All other companies	69,1  %

7. UNION INTEREST

7.1.   Interest of the Union industry

• (280) CPCIF argued that there is no indication that the imposition of anti-dumping duties will have a positive effect on the Union industry.

• (281) The claim made by CPCIF was not substantiated and is therefore rejected.

• (282) Following definitive disclosure, CPCIF repeated its comment highlighting that the Union industry production is not sufficient to meet the entire Union demand for the product concerned and that it would be in the Union interest to keep imports from Chinese producers.

• (283) As set out in recital (499) of the provisional Regulation, imports from China remain a necessary source of imports. Anti-dumping measures are not intended to prohibit imports, but to reestablish fair conditions of trade and competition. To warrant the security of supply, production in the Union has to remain present. Therefore, the claim was rejected.

• (284) Following definitive disclosure, the complainants stated that anti-dumping measures rebalance the market conditions and disables market players from benefitting from an unfair trade practice at the expense of the Union industry, ensuring the security of supply to users.

7.2.   Interest of unrelated importers, traders, and users

• (285) Following pre-disclosure, Impag AG claimed the lack of security of supply and the overall inability of the Union industry to meet Union domestic demand, forcing users to import at higher prices if anti-dumping duties were imposed. This was reiterated by Quimidroga after the provisional disclosure, adding that the Union industry did not supply TEP and did not show any evidence that it would restart TEP production. Anti-dumping measures would thus also affect the downstream users of TEP in its other applications. Purinova, CPCIF, and Systemhouse added that the production capacity of the Union industry stagnated and is not able to meet current and increasing future demand. Additionally, there is no production of TEP outside of China and, as said above, no indication that the Union industry would start producing TEP. Therefore, duties would be only felt by the downstream market.

• (286) The complainants argued that due to the pressure of Chinese dumped imports, they reduced their capacity utilisation rates to minimum levels although their installed capacity has not been reduced. This means that in the absence of Chinese dumped imports, the complainants would be able to quickly increase their production volumes again. On the other hand, they did acknowledge that the Union industry’s production is not sufficient for meeting the entire Union demand for APE.

• (287) It is clear that, at least in the near future, the imports from China remain a necessary source for users of the product under investigation. As explained in recital (499) of the provisional Regulation, the pressure of dumped imports from China risks to force the Union industry to further scale down or to completely stop production in the Union, which would result in even less security of supply. Moreover, the purpose of the anti-dumping duty is not to stop imports of APE from China but to eliminate trade-distorting effects of an unfair trade practice, i.e. injurious dumping, and thereby to restore fair conditions of trade and competition. A precise dumping and undercutting calculations calibrated the measures to achieve just that purpose. Therefore, the claims of Quimidroga, Purinova, CPCIF, and Systemhouse were rejected.

• (288) Quimidroga reiterated its claims after definitive disclosure and submitted that the conditions to conclude that the definitive measures were not against the Union interest were not met, because the Commission did not address the question of how the Union industry will meet the TEP demand as it did not relaunch TEP production during 20 years and nothing showed that it will restart production.

• (289) As set out in recital (287), the Commission recognised that imports from China will remain a necessary source. However, that the Union industry is not in the position to be directly able to supply the full Union consumption does not alter the Commission’s conclusions as set out above. Therefore, the claim was rejected.

• (290) Following provisional disclosure, Purinova stated that the Commission’s provisional findings focussed solely on the interest of the Union industry without assessing the interests of other market participants, while anti-dumping measures would have a disproportionate impact on users and consumers. Also CPCIF argued that all importers and users that came forward unanimously opposed the imposition of anti-dumping measures, because they would be to the detriment of the downstream market and most users would not be able to absorb the cost of the measures.

• (291) Purinova reasoned that while the product under investigation only constituted a low share in the profits of the complainants, referring to recital (409) of the provisional Regulation, the revenue from goods produced using APE constituted a significant part of total income for traders and users. The user Systemhouse noted that the assessment of the interest on users was solely based on the comments provided by the cooperating users.

• (292) Purinova argued that the total cost of APE in the final cost of the end-product depends on the specificities and production techniques used for the end-product in question, but on average exceeds the percentage given in recital (489) of the provisional Regulation. Systemhouse indicated that its cost increase of end products would amount to 5 % - 10 %. According to Systemhouse, supported by Rytm-L Sp. z o.o., due to the provisional measures imposed, an increase in production costs of rigid foams is already being observed and in order to maintain the current profit margin on the end-products, the costs must be passed on to the end users of the final products. Systemhouse indicated that the provisional Regulation did not evaluate the increase in the cost of intermediate downstream products.

• (293) The complainants responded to this claim arguing that all users stated that the cost increase of the end-product depends on the specificities of the product in question and therefore unverified data provided by the users should not be considered for the Commission’s conclusions.

• (294) For its assessment on the impact of anti-dumping measures on the different parties, the Commission based itself on the submissions by the parties which provided the company/business-specific information to assess such impact the most accurately. The Commission noted that all importers and users opposed the imposition of anti-dumping duties. To make a fair assessment, the Commission analysed the submission from all parties. The submissions of the cooperating users did not show that the impact of anti-dumping duties on importers and users would be significant. This was further confirmed by the verification visits held at a large importer and a large user. Therefore, the claim was dismissed.

• (295) Purinova and Impag AG argued that anti-dumping measures would decrease the competitiveness of PUR systems compared to other thermal insulation systems, despite its advantages in thermal insulation properties. According to CPCIF, Purinova, and Shekoy Europe, the Commission failed to substantiate its conclusion that the imposition of anti-dumping measures would allow the Union to meet its objectives for insulation and reduction of carbon emissions and claimed that anti-dumping measures would only slow down the Union’s efforts to decarbonise Union building stock as users would likely use APE less or use other less carbon efficient products for construction projects in the Union.

• (296) In recital (503) of the provisional Regulation, the Commission concluded that the measures would not have any significant impact on the Union’s objectives for insulation and reduction of carbon emissions. This is due to the relatively limited cost that APE represents in the production of insulation materials. The parties did not provide any evidence that this conclusion was wrong and therefore the claim was rejected.

• (297) Shekoy Europe and Quimidroga further claimed that the objectives of the common customs duty suspension on TCPP and TEP would be undermined by the imposition of anti-dumping measures.

• (298) The objective of imposing anti-dumping duties is to restore fair conditions of trade and competition. The existence of a tariff suspension on part of the product concerned cannot be considered a reason to not restore a level playing field in the Union market. The claim was therefore rejected.

• (299) According to Systemhouse, the Commission did not consider the fact that producers in third countries could produce the same end products as Union users at a cost without the anti-dumping duties. Therefore, the interests of the user industry, in particular the Union producers of the downstream polyol products, are undermined by the anti-dumping measures.

• (300) The Commission found that anti-dumping measures are supposed to restore fair conditions of trade and competition. The risk that the downstream products containing product under investigation might be substituted by other downstream products cannot be a reason not to restore a level playing field on the upstream Union market for APE by addressing the situation of injurious dumping, in particular when the adverse effect of anti-dumping duties on the users is considered to be relatively limited.

• (301) Following definitive disclosure, Kingspan argued that measures on TEP are against the Union interest, because imposing duties on TEP would negatively affect many users, especially in the applications in which substitution between TCPP and TEP are not possible, while the measures would not protect any Union producers and it would unduly obstruct the foam industry’s transition to halogen-free products that contrary to TCPP are not associated with possible health risks. According to Kingspan, the finding in recital (294) disregards the time and costs associated with reformulation, recertification and capex investment that will be borne by users who may seek ways to reduce the use and corresponding costs of flame retardants.

• (302) In recital (502) of the provisional Regulation, the Commission acknowledged that the measures will likely increase the production costs of users but that on the medium/long term the improved supply security of the Union is likely to benefit also the users. No users of TEP in applications where substitutability by TCPP was not possible came forward in the investigation and therefore any negative effect on those users could not be assessed. However, the costs of the product concerned on the cooperating users was found to be relatively limited, due to the limited amount of the product concerned in the end-products.

• (303) By imposing a duty on TCPP and TEP, the Commission would not obstruct any possible transition from TCPP to halogen-free products, such as TEP. Since the investigation found injurious dumping of both TCPP and TEP, fair conditions of trade and competition should be restored. Moreover, any public health risks related to TCPP were found to be indecisive. According to the European Chemicals Agency, no classification for carcinogenicity has yet been proposed. Therefore, the claim was rejected.

7.3.   Conclusion on Union interest

• (304) The conclusions reached in recital (504) of the provisional Regulation were confirmed.

8. DEFINITIVE ANTI-DUMPING MEASURES

8.1.   Definitive measures

• (305) In view of the conclusions reached with regard to dumping, injury, causation, level of measures and Union interest, and in accordance with Article 9(4) of the basic Regulation, definitive anti-dumping measures should be imposed in order to prevent further injury being caused to the Union industry by the dumped imports of the product concerned.

• (306) On the basis of the above, the definitive anti-dumping duty rates, expressed on the CIF Union border price, customs duty unpaid, should be as follows:

Company	Dumping margin (%)	Injury margin (%)	Definitive anti-dumping duty (%)
Anhui RunYue Technology Co., Ltd.	53,1	69,1	53,1
Nantong Jiangshan Agrochemical & Chemicals Limited Liability Co.	68,4	78,4	68,4
Shandong Yarong Chemical Co., Ltd.	63,0	79,0	63,0
Other cooperating companies not sampled listed in Annex	61,3	76,2	61,3
All other companies	68,4	79,0	68,4

• (307) The individual company anti-dumping duty rates specified in this Regulation were established on the basis of the findings of this investigation. Therefore, they reflect the situation found during this investigation in respect to these companies. These duty rates are thus exclusively applicable to imports of the product under investigation originating in the country concerned and produced by the named legal entities. Imports of the product concerned manufactured by any other company not specifically mentioned in the operative part of this Regulation, 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’.

• (308) A company may request the application of these individual anti-dumping duty rates if it changes subsequently the name of its entity. The request must be addressed to the Commission ²⁰. The request must contain all the relevant information enabling to demonstrate that the change does not affect the right of the company to benefit from the duty rate which applies to it. If the change of name of the company does not affect its right to benefit from the duty rate which applies to it, a regulation about the change of name will be published in the Official Journal of the European Union.

• (309) To minimise the risks of circumvention due to the difference in duty rates, special measures are needed to ensure the proper application of the individual anti-dumping duties. The companies with individual anti-dumping duties must present a valid commercial invoice to the customs authorities of the Member States. The invoice must conform to the requirements set out in Article 1(3) of this Regulation. Imports not accompanied by that invoice should be subject to the anti-dumping duty applicable to ‘all other companies’.

• (310) While presentation of this invoice is necessary for the customs authorities of the Member States to apply the individual rates of anti-dumping duty to imports, it is not the only element to be taken into account by the customs authorities. Indeed, even if presented with an invoice meeting all the requirements set out in Article 1(3) of this Regulation, the customs authorities of Member States should carry out their usual checks and may, like in all other cases, require additional documents (shipping documents, etc.) for the purpose of verifying the accuracy of the particulars contained in the declaration and ensure that the subsequent application of the rate of duty is justified, in compliance with customs law.

• (311) Should the exports by one of the companies benefiting from lower individual duty rates increase significantly in volume, in particular after the imposition of the measures concerned, such an increase in volume could be considered as constituting in itself a change in the pattern of trade due to the imposition of measures within the meaning of Article 13(1) of the basic Regulation. In such circumstances, an anti-circumvention investigation may be initiated, provided that the conditions for doing so are met. This investigation may examine the need for the removal of individual duty rate(s) and the consequent imposition of a country-wide duty.

• (312) To ensure a proper enforcement of the anti-dumping duties, the anti-dumping duty for all other companies should apply not only to the non-cooperating exporting producers in this investigation, but also to the producers which did not have exports to the Union during the investigation period.

• (313) Exporting producers that did not export the product concerned to the Union during the investigation period should be able to request the Commission to be made subject to the anti-dumping duty rate for cooperating companies not included in the sample. The Commission should grant such request provided that three conditions are met.

• (314) The new exporting producer would have to demonstrate that:

• (a) it did not export the product concerned to the Union during the IP;

• (b) it is not related to an exporting producer that did so; and

• (c) it has exported the product concerned thereafter or has entered into an irrevocable contractual obligation to do so in substantial quantities.

8.2.   Definitive collection of the provisional duties

• (315) In view of the dumping margins found and given the level of the injury caused to the Union industry, the amounts secured by way of provisional anti-dumping duties imposed by the provisional Regulation, should be definitively collected up to the levels established under the present Regulation.

9. FINAL PROVISION

• (316) In view of Article 109 of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council ²¹, when an amount is to be reimbursed following a judgment of the Court of Justice of the European Union, the interest to be paid should be the rate applied by the European Central Bank to its principal refinancing operations, as published in the C series of the Official Journal of the European Union on the first calendar day of each month.

• (317) The measures provided for in this regulation are in accordance with the opinion of the Committee established by Article 15(1) of Regulation (EU) 2016/1036,

HAS ADOPTED THIS REGULATION:

Article 1

Company	Definitive anti-dumping duty	TARIC additional code
Anhui RunYue Technology Co., Ltd.	53,1  %	89 AL
Nantong Jiangshan Agrochemical & Chemicals Limited Liability Co.	68,4  %	89 AM
Shandong Yarong Chemical Co., Ltd.	63,0  %	89 AN
Other cooperating companies not sampled listed in Annex	61,3  %
All other companies	68,4  %	8 999

Article 2

The amounts secured by way of the provisional anti-dumping duty under Implementing Regulation (EU) 2024/1064 imposing a provisional anti-dumping duty on imports of certain alkyl phosphate esters originating in the People’s Republic of China shall be definitively collected.

Article 3

The Annex mentioned in Article 1(2) may be amended to add new exporting producers from the People’s Republic of China and make them subject to the appropriate weighted average anti-dumping duty rate for cooperating companies not included in the sample. A new exporting producer shall provide evidence that:

• (a) it did not export the goods described in Article 1(1) during the period of investigation (1 July 2022 to 30 June 2023);

• (b) it is not related to an exporter or producer subject to the measures imposed by this Regulation, and which could have cooperated in the original investigation; and

• (c) it has either actually exported the product concerned or has entered into an irrevocable contractual obligation to export a significant quantity to the Union after the end of the period of investigation.

Article 4

This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 12 September 2024.

For the Commission

The President

Ursula VON DER LEYEN

ANNEX

Cooperating exporting producers not sampled:

Name	TARIC additional code
Fujian Wynca Technology Co., Ltd.	89AP
Futong Chemical Co., Ltd.	89AQ
Hebei Zhenxing Chemical and Rubber Co., Ltd.	89AR
Jiangsu Yoke Technology Co., Ltd.	89AS
Jilin Yonglin Chemical Co., Ltd.	89AT
Ningguo Long Day Chemical Co., Ltd	89AU
Shanghai Iroyal Chemical Co., Ltd.	89AV
Xinji Hongzheng Chemical Industry Co., Ltd.	89AW
Xuancheng City Trooyawn Refined Chemical Industry Co., Ltd.	89AX
Yangzhou Chenhua New Material Co., Ltd.	89AY
Zhejiang Wansheng Co., Ltd.	89AO

ELI: http://data.europa.eu/eli/reg_impl/2024/2415/oj

ISSN 1977-0677 (electronic edition)