Commission Implementing Regulation (EU) 2025/60 of 15 January 2025 imposing a definitive anti-dumping duty, definitively collecting the provisional duty imposed on imports of erythritol originating in the People’s Republic of China and levying the definitive anti-dumping duty on the registered imports of erythritol originating in the People’s Republic of China

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (1) (‘the basic Regulation’), and in particular Article 9(4) thereof,

Whereas:

(1) On 21 November 2023, the European Commission (‘the Commission’) initiated an anti-dumping investigation with regard to imports of erythritol originating in the People’s Republic of China (‘the country concerned’ or ‘the PRC’) on the basis of Article 5 of the basic Regulation. It published a Notice of Initiation in the Official Journal of the European Union (2) (‘the Notice of Initiation’).

(2) The Commission initiated the investigation following a complaint lodged on 9 October 2023 by Jungbunzlauer S.A. (‘the complainant’). The complaint was made by the Union industry of erythritol in the sense of Article 5(4) of the basic Regulation. The complaint contained evidence of dumping and of resulting material injury that was sufficient to justify the initiation of the investigation.

(3) The Commission made imports of the product concerned subject to registration by Commission Implementing Regulation (EU) 2024/1608 (3) (‘the registration Regulation’).

(4) In accordance with Article 19a of the basic Regulation, on 21 June 2024, the Commission provided parties with a summary of the proposed duties and details about the calculation of the dumping margins and the margins adequate to remove the injury to the Union industry. Interested parties were invited to comment on the accuracy of the calculations within three working days. Within this period, the complainant submitted a request for the Commission to re-check export data, while two importers/users submitted comments with a focus on registration issues. Only the sampled exporting producer Dongxiao Biotechnology Co., Ltd submitted comments on the accuracy of the calculations, namely concerning the level of refundable VAT and benchmarks for two by-products. The Commission corrected the calculation mistakes identified by Dongxiao Biotechnology Co., Ltd.

(5) The Commission imposed provisional anti-dumping duties on imports of erythritol originating in the PRC by Commission Implementing Regulation (EU) 2024/1959 (4) (‘the provisional Regulation’).

(6) Following the disclosure of the essential facts and considerations on the basis of which a provisional anti-dumping duty was imposed (‘provisional disclosure’), a sampled exporting producer referred to in the provisional Regulation as Sanyuan Biotechnology Co., Ltd stated that its name should be corrected into Shandong Sanyuan Biotechnology Co., Ltd. In light of the information submitted by the company in the course of the investigation, the Commission accepted the request.

(7) Following the provisional disclosure, a sampled exporting producer Shandong Sanyuan Biotechnology Co., Ltd, the complainant and users Rio Mints & Sweeteners B.V. and Hamburg Fructose GmbH International, filed individual submissions on the provisional findings within the deadline provided by Article 2(1) of the provisional Regulation. Likewise, the China Chamber of Commerce for Metals, Minerals and Chemicals Importers and Exporters (‘CCCMC’), having been empowered by four exporting producers to represent them (5), submitted comments on injury, causality and Union interest within the deadline.

(8) The parties who so requested were granted an opportunity to be heard. Hearings took place with CCCMC, Rio Mints & Sweeteners B.V. and Hamburg Fructose GmbH International.

(9) The Commission continued to seek and verify all the information it deemed necessary for its definitive findings. When reaching its definitive findings, the Commission considered the comments submitted by interested parties and revised its provisional conclusions where appropriate.

(10) The Commission informed all interested parties of the essential facts and considerations on the basis of which it intended to impose a definitive anti-dumping duty on imports of erythritol originating in the PRC (‘final disclosure’). All parties were granted a period within which they could make comments on the final disclosure.

(11) Following final disclosure, the Commission found a clerical error when establishing the reasonable amount for profit under Article 2(6a)(a) of the basic Regulation. On 7 November 2024, the Commission informed interested parties of the correction of that clerical error and of corrections resulting from the claims referred to in recitals (47) to (50) below. All parties were granted a period within which they could make comments on the additional final disclosure.

(12) Following final disclosure, a hearing with the Hearing Officer took place on 14 November 2024 at the request of Rio Mints & Sweeteners B.V. and Hamburg Fructose GmbH International. The issues brought forward in this hearing by the two parties pertained to substantive rather than rights of defence issues. The parties expressed doubts about the dumping and injury calculations, requested that the retroactive application of the definitive measures not be implemented before 1 July 2024, and pleaded for the exclusion from the measures of certain types of products. The Commission clarified the methodology for the calculations and took note of the concerns and requests of the parties. They are addressed below.

(13) CCCMC considered that the procedural claims in its initial submission had not been sufficiently addressed by the Commission in the provisional Regulation. CCCMC reiterated its concerns inter alia regarding missing economic indicators in the complaint and a deficient non-confidential summary. It further claimed that a better quality of non-confidential summaries in the provisional Regulation does not substitute the original data in the complaint and does not allow CCCMC to fulfil their breached right of defence at the stage of initiation.

(14) The Commission reiterated that, as explained in recital (11) of the provisional Regulation, the complaint contained sufficient information that was reasonably available to the complainant and that the non-confidential summary of the complaint did contain the relevant factors and indices having a bearing on the state of the Union industry, as required by Article 5(2) of the basic Regulation. It had also explained in Recital (17) of the provisional Regulation that in view of the fact that Union industry consists of a single producer it was understandable that injury factors were given in ranges and in indexed form in the complaint. Thus, the Commission does not agree that the rights of defence of the companies represented by CCCMC were breached at the stage of initiation.

(15) After provisional disclosure an importer questioned the representativity of sampled exporting producers on the grounds that smaller Chinese exporters differ in multiple respects from the large players. The claim was both unsubstantiated, and made too late in the proceeding, and was consequently dismissed.

(16) No other comments were received concerning sampling. Therefore, the conclusions in recitals (19) to (26) of the provisional Regulation were confirmed.

(17) No comments were received concerning individual examination. Therefore, the conclusions in recital (27) of the provisional Regulation were confirmed.

(18) Rio Mints & Sweeteners B.V. criticised the investigation period selected on the grounds that it had been unique in terms of low prices from Chinese suppliers, low shipping costs and very high raw material and energy costs in the Union. The Commission noted that the claim was made too late in the proceeding and, in any event, dismissed it because the investigation period is in line with the Commission’s normal practice of choosing an investigation period immediately prior to the initiation of a proceeding.

(19) Following final disclosure, Rio Mints & Sweeteners B.V. and Hamburg Fructose GmbH criticised the Commission’s reasoning above on the grounds that the Commission had failed to demonstrate if and how it had complied with its legal obligation to account for exceptional circumstances, no matter when the claim on exceptional circumstances was made. These parties specifically asserted that the investigation period saw exceptionally high energy costs in the Union and very low shipping costs. The Commission noted that the parties’ claim at that stage did not put into question the appropriateness of Commission’s practice in selecting the investigation period, which was also applied in this case. The Commission further noted that by examining trends relevant for the assessment of injury over a longer period, running from 1 January 2020 to 30 September 2023, it had indeed taken into account circumstances that may have been exceptional during the investigation period.

(20) No other comments were received concerning the investigation period and the period considered described in recital (33) of the provisional Regulation. The investigation period and the period considered described in that recital were thus confirmed.

(21) Rio Mints & Sweeteners B.V. claimed that the Commission has not investigated blended products and that such products are not subject to dumping and should be kept outside of the scope of the investigation. Following final disclosure, Rio Mints & Sweeteners B.V. insisted on its initial claim while alleging that the Commission had not investigated blended products as no calculation of the comparison for blended products was shown to the party. Hamburg Fructose GmbH echoed the same claim both for blended and organic products. Both parties noted that the complainant did not offer ready-for-consumer-to-use-packaging formats.

(22) The Commission recalled that both dumping and injury margins had been calculated at the level of Product Control Numbers (PCNs) which distinguish between pure and blended products. When blank questionnaires were made available at initiation stage, no party claimed that PCNs should isolate organic products. Therefore, the normal value and export prices were established for both pure and blended products on the basis of this distinction, while the ‘organic’ feature was accounted for in the normal value. Neither the complainant nor sampled exporting producers sold erythritol in jars or sticks in the Union during the investigation period. The detailed calculations contained sensitive data and were disclosed only to the parties that could meaningfully comment on them. Their methodology was however explained to the two parties in the hearing referred to in recital (12).

(23) The Commission also noted that pure and blended products, while distinguishable at a laboratory, have the same basic physical and chemical characteristics.

(24) Following final disclosure, Rio Mints & Sweeteners B.V. and Hamburg Fructose GmbH claimed that the above statement was irrelevant because the important properties for blends were ‘other factors’, namely sensorial properties. The Commission reiterated that, on the basis of objective and non-disputed criteria, a fair comparison of prices had been ensured as explained above.

(25) Rio Mints & Sweeteners B.V. and Hamburg Fructose GmbH International further pleaded respectively that at least functional blends in ready to use consumer products and organic erythritol should be excluded from the scope of the measures. The Commission noted that its conclusion in recital (22) holds, and that notwithstanding financial impact on the two parties in question, there is no justification for such exclusions.

(26) Accordingly, the conclusions regarding the product concerned and the like product reached in recitals (34) to (39) as amended of the provisional Regulation were confirmed.

(27) Following provisional disclosure, the sampled exporting producer Shandong Sanyuan Biotechnology Co., Ltd, CCCMC, the complainant and users commented on the provisional dumping findings.

(28) The details of the calculation of the normal value were set out in recitals (40) to (227) of the provisional Regulation.

(29) CCCMC contested the Commission’s considerations about the existence significant market distortions in the PRC. To support its position, it claimed that: (i) the Report fails to meet the standards of impartial and objective evidence and evidence of sufficient probative value, not least because it has been prepared by the Commission with the specific purpose of facilitating Union industries to lodge a complaint in the area of trade measures; (ii) according to the Appellate body jurisprudence (6), the Commission is required to positively establish the existence of dumping practices; (iii) Article 2(6a) of the basic Regulation is incompatible with WTO legislation, since there is no reference to the concept of significant distortions in Article 2.2 ADA, since Article 2.2 only permits using the cost of production in the country of origin plus a reasonable amount for administrative, selling and general costs and profits, since Article 2.2.1.1 requires that costs shall normally be calculated on the basis of records kept by the exporter or producer under investigation, provided that such records are in accordance with the generally accepted accounting principles of the exporting country and reasonably reflect the costs associated with the production and sales of the product under consideration, and since the WTO jurisprudence, in particular DS473 and DS494 establishes that investigating authorities must use the product costs actually incurred by producers or exporters for the calculation of constructed normal values.

(30) These arguments could not be accepted. As to CCCMC’s first and second argument, the Commission pointed out that, in order to assess the existence and potential impact of the significant distortions, it has, in line with Article 2(6a)(e) of the basic Regulation, collected the data necessary to determine the existence and impact of significant distortions and the consequent use of the methodology prescribed by Article 2(6a)(a) of the basic Regulation. The data collected by the Commission and the resulting determinations are presented in detail in Section 3.2.2. of the provisional Regulation. That Section contains the Commission’s full assessment concerning the existence of significant distortions, including substantial additional evidence specific to the investigation not included in the Report. Concerning the Report itself, the Commission recalled that it is a comprehensive document based on extensive objective evidence, including legislation, regulations and other official policy documents published by the Chinese authorities, third party reports from international organisations, academic studies and articles by scholars, and other reliable independent sources. The Report was placed on the investigation file so that any interested party would have ample opportunity to rebut, supplement or comment on it and the evidence on which it is based. CCCMC did not provide any such rebuttal, other than the generic comments of the Report not being impartial and objective.

(31) Concerning CCCMC’s third argument, the Commission reiterated its view expressed in recital (159) of the provisional Regulation that the methodology pursuant to Article 2(6a) of the basic Regulation is fully consistent with the Union’s WTO obligations. In particular, there is no need for WTO Members to use the exact terms of the WTO Agreements in their implementing legislation. Therefore, the fact that the terms ‘significant distortions’ as such are not present in the ADA does not restrict the EU’s use of those terms. Moreover, the WTO law as interpreted by the Appellate Body in DS473, allows the use of data from a third country, duly adjusted when such adjustment is necessary and substantiated. In addition, in relation to the DS494, the Panel Report specifically considered the provisions in Article 2(6a) of the basic Regulation to be outside the scope of the dispute. Moreover, the Commission pointed out that both the EU and the Russian Federation appealed the findings of the Panel, which are not final and therefore, according to standing WTO case-law, have no legal status in the WTO system, since they have not been endorsed by the Dispute Settlement Body through a decision by the WTO Members. Therefore, CCCMC’s claim was rejected.

(32) No other comments were received concerning the existence of significant distortions in the PRC. Therefore, the findings in recitals (40) to (162) of the provisional Regulation were confirmed.

(33) Following final disclosure, Rio Mints & Sweeteners B.V. and Hamburg Fructose GmbH claimed that xylitol’s production costs were more comparable to the production costs of the product under investigation than the production costs of citric acid. The claim was dismissed as unsubstantiated and made at a very late stage of the proceeding.

(34) No comments were received as to the finding that Colombia 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. The conclusions in recitals (163) to (184) of the provisional Regulation were confirmed.

(35) After provisional disclosure, an importer stated that products other than citric acid could have been taken as an appropriated proxy. The claim, which was unsubstantiated, was made at a too late stage of the proceeding (7) and dismissed.

(36) The complainant noted a difference between the value for corn/maize in the note to the file on the relevant sources that the Commission intended to use for the determination of the normal value dated 21 December 2023 (‘the First Note’) versus the value for corn/maize in table 1 of the provisional Regulation. The Commission confirmed to have made a new extraction of raw data for the purpose of the provisional Regulation which resulted in the value in table 1 therein.

(37) The complainant requested an upward adjustment of 6,5 % for the benchmark value of corn/maize used on the grounds that Chinese corn was not genetically modified (‘non-GM’) and that non-GM corn attracts a premium in the market, and submitted evidence about the lower productivity of non-GM corn. The premium was calculated based on market intelligence available to the applicant. The investigation confirmed that non-GM products attract a price premium, that the main import sources of corn into Colombia widely adopted transgenic corn (8) and that Chinese erythritol is produced from non-GM corn. The Commission thus agreed to a 6,5 % upward adjustment to the benchmark value for corn/maize presented in table 1 of the provisional Regulation. The updated benchmark value for corn/maize is 2,277 CNY/kg while the benchmark value for organic corn/maize is 2,732 CNY/kg.

(38) With regard to the dry substance content in liquid glucose, the complainant deemed the content ratio of 71 % put forward by a sampled exporting producer as underestimation. The Commission dismissed the claim in light of the information verified at the level of the sampled exporting producers concerned.