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26.3.2013 Official
Journal
of
the
European
Union
L
86/1
II
(Non-legislative acts)
REGULATIONS
COUNCIL IMPLEMENTING REGULATION (EU) No 285/2013
of 21 March 2013
terminating the partial reopening of anti-dumping investigation concerning imports of
ethanolamines originating in the United States of America and terminating the expiry review
pursuant to Article 11(2) and the partial interim review pursuant to Article 11(3) of Regulation
(EC) No 1225/2009
THE COUNCIL OF THE EUROPEAN UNION,
(3) On
19
January
2010
and
following
a
third
expiry
review
investigation, the anti-dumping duties on imports of
ethanolamines originating in the USA were imposed for
Having regard to the Treaty on the Functioning of the European
two more years by Council Implementing Regulation
Union,
(EU) No 54/2010 ( 5 ) (the ‘third expiry review Regu
lation’).
Having regard to Council Regulation (EC) No 1225/2009 of
30 November 2009 on protection against dumped imports
from countries not members of the European Community (
(4) On
9
April
2010,
The
Dow
Chemical
Company
(‘Dow

1 )
(‘the basic Regulation’), and in particular Article 9(2) and
Chemical’) filed an application for partial annulment of
Article 11(2) and (3) thereof,
Implementing Regulation (EU) No 54/2010.
Having regard to the proposal submitted by the European
Commission after having consulted the Advisory Committee,
(5) On
12
March
2011,
the
European
Commission
(the
‘Commission’) published a Notice of impending expiry
in the Official Journal ( 6 ).
Whereas:
(6) Following
a
request
lodged
by
BASF
AG,
Ineos
Europe
1. PROCEDURE
AG, and Sasol Germany GmbH (the ‘Union industry’), the
1.1. Existing measures
Commission initiated an expiry review on 21 January

2012 (the ‘fourth expiry review’) ( 7 ).
(1) On
2
February
1994,
the
Council
imposed,
by
Regu
lation (EC) No 229/94 ( 2 ) (‘the original Regulation’),
definitive anti-dumping duties on imports of ethano
lamines (‘product concerned’) originating in the United
(7) A
partial
interim
review
limited
to
dumping
as
regards
States of America (‘USA’). On 20 July 2000 and
Dow Chemical was initiated on 11 April 2012 ( 8 ).
following an expiry review investigation, these measures
were extended for five years by Council Regulation (EC)
No 1603/2000 ( 3 ) (the ‘first expiry review Regulation’).
(8) Following
an
application
lodged
( 9 ) on 9 April 2010, the
General Court annulled by its judgment of 8 May 2012
(2) On
23
October
2006,
following
the
second
expiry
in Case T-158/10 ( 10 ) (the ‘Judgment’), the third expiry
review investigation, the measures were extended for
review Regulation in so far as it concerns Dow Chemical.
five more years by Council Regulation (EC) No
1583/2006 ( 4 ) (the ‘second expiry review Regulation’).
( 5 ) OJ L 17, 22.1.2010, p. 1.
( 6 ) OJ C 79, 12.3.2011, p. 20.
( 1 ) OJ L 343, 22.12.2009, p. 51.
( 7 ) OJ C 18, 21.1.2012, p. 16.
( 2 ) OJ L 28, 2.2.1994, p. 40.
( 8 ) OJ C 103, 11.4.2012, p. 8.
( 3 ) OJ L 185, 25.7.2000, p. 1.
( 9 ) OJ C 161, 9.4.2010, p. 44.
( 4 ) OJ L 294, 25.10.2006, p. 2.
( 10 ) Case T-158/10 The Dow Chemical Company v Council [2012] ECR II.

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L 86/2
EN
Official Journal of the European Union
26.3.2013
1.2. Partial reopening
90 % of the nameplate capacity, as the institutions had
done, is overly conservative as it is common and
(9) Following
the
Judgment,
a
notice
( 1 ) was published
accepted for companies to exceed the nameplate
concerning the partial reopening of the third expiry
capacity. Basing themselves on published market data
review investigation concerning imports of ethano
allegedly sourced from PCI Xylenes & Polyesters (‘PCI’),
lamines originating in the USA. The reopening was
they concluded that there was indeed spare capacity in
limited in scope to the implementation of the
2008 and onwards.
Judgment as far as the determination of a likelihood of
a continuation or recurrence of dumping during the
review investigation period (the ‘RIP’), including the
spare production capacity of ethanolamines in the USA,
(16) Moreover,
the
Union
industry
considered
that
market
is concerned.
conditions had not changed materially since the
publication of the third expiry review Regulation and
found several reasons to conclude that there is a like
(10) In
that
notice,
parties
were
informed
that,
in
view
of
the
lihood of a recurrence of dumping. In this respect, it
Judgment, imports into the European Union of ethano
invoked the continuation of the US production capacity
lamines manufactured by Dow Chemical are no longer
over domestic demand since the RIP; the material
subject to the anti-dumping duties imposed by the third
capacity expansions in third countries after 2009 which
expiry review Regulation and that definitive anti-dumping
would have made US export markets increasingly self-
duties paid pursuant to that Regulation on imports of
sufficient; the existence of anti-dumping measures
ethanolamines should be repaid or remitted in
imposed or likely to be imposed soon in third countries;
accordance with the applicable customs regulation.
the increase of MEG (monoethylene glycol) capacity
production from 2009 onwards; and the proposal in
the USA to include some of the ethanolamines in the
(11) The Commission officially advised the exporting
list of products with potential harmful effects to health
producers, the importers and users known to be
which could ultimately have an impact in domestic
concerned and the Union industry of the partial
consumption.
reopening of the investigation. Interested parties were
given the opportunity to make their views known in
writing and to request a hearing within the time limit
set out in the notice.
(17) Dow
Chemical
expressed
its
doubts
about
the
legality
of
the re-opening of the investigation, arguing that there is
no specific provision in the basic Regulation allowing for
(12) All parties who so requested within that time limit, and
that. This exporting producer also alleged that the re-
who demonstrated that there were particular reasons why
opening would be in conflict with the 15-month
they should be heard, were granted the opportunity to be
statutory deadline set out in Article 11(5) of the basic
heard.
Regulation for the completion of review investigations.
(13) Representations were received from two exporting
producers, three Union producers and a user of the
product concerned.
(18) Dow
Chemical
further
claimed
that
the
Judgment
would
not require any implementing measure and that the
Commission could not legally remedy the aspects of
2.
the contested Regulation since each of the substantive
IMPLEMENTATION OF THE JUDGMENT
grounds that led to the adoption of the Regulation was
2.1. Preliminary remark
either annulled by the General Court or contested. Dow
Chemical therefore considered that the only legal way to
(14) It is recalled that the reason for the annulment of the
remedy those aspects of the third expiry review Regu
contested Regulation was the General Court’s finding that
lation would be to repeal the existing measures.
the third expiry review Regulation contained two errors
of assessment: (i) a finding of continued dumping during
RIP and, therefore, on that basis, a finding of a likelihood
of continuation of dumping; and (ii) the determination
(19) A
user
in
the
Union,
Stepan
Europe
(‘Stepan’),
submitted
that the spare production capacity of ethanolamines in
that the legal consequence of the judgment could only be
the United States amounted to 60 000 tonnes.
that the measures imposed by the third expiry review
Regulation should be withdrawn as they had been
imposed on the basis of an erroneous analysis. Similar
2.2. Comments of interested parties
views were expressed by the exporting producer
Huntsman Petrochemical Corporation LLC (‘Huntsman’).
(15) The
Union
industry
acknowledged
that
the
Judgment
Indeed, Stepan and Huntsman argued that the Court held
questioned the methodologies employed by the Insti
that, during the RIP, the country-wide dumping margin
tutions to quantify the spare capacity production in the
was negative and therefore no continuation of dumping
USA. However, the Union industry maintained its
could be established. Stepan considered that the insti
position that basing the actual production capacity on
tutions should hence have examined if there was a like
lihood of recurrence of dumping; yet the third expiry
( 1 ) OJ C 314, 18.10.2012, p. 12.
review Regulation had been silent on this.

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EN
26.3.2013 Official
Journal
of
the
European
Union
L
86/3
(20) Moreover,
Stepan
stressed
that,
would
the
notion
of
(23) Huntsman
raised
that
if
the
Union
industry
would
have
continuation of dumping be interpreted on an individual
suffered from any injury, this would have been attributed
company basis, the institutions should have concluded
to the effects of the economic crisis and not to imports
that there was no continuation of dumping for Dow
from the USA. The mere exacerbation of the negative
Chemical as, according to the Court, the company repre
impact of the crisis through imports could not permit
sented more than 85 % of all imports from the USA, and
a finding of a likely recurrence of injury caused by the
therefore they should have considered whether dumping
mentioned imports.
by Dow Chemical was likely to recur. For the other
exporting companies, it was established that there had
been dumping and therefore the institutions should
have established whether dumping was likely to
2.3. Analysis of comments
continue. The likelihood of continuation of dumping
(24) In respect of the alleged illegality of the reopening
analysis was mainly based, according to Stepan, on a
(recitals 17-18), it is recalled that in case C-458/98 P
country–wide spare capacity in the USA of 60 000
(the ‘IPS judgment’), the Court of Justice recognised
tonnes. Given the Court’s finding that the institutions
that in cases where a proceeding consists of several
erred in assessing the spare capacity in the USA and
administrative steps, the annulment of one of those
given that, according to Stepan, the spare capacity was
steps does not annul the complete proceeding. The
closer to at the most 8 000 tonnes, it was no longer
anti-dumping proceeding is an example of such a
possible to sustain that the other exporting companies
multi-step proceeding. Consequently, the annulment of
were likely to continue dumping. The institutions would
the amending Regulation in relation to one party does
have needed to also analyse and establish the likelihood
not imply the annulment of the entire procedure prior to
of recurrence of dumping.
the adoption of that Regulation ( 2 ). Moreover, according
to Article 266 of the Treaty on the Functioning of the
European Union (TFEU), the Union institutions are
required to comply with the judgment. In the light of
(21) Hunstman
also
based
its
analysis
on
the
assumption
that
the above, the claim that there is no legal basis for the
the Judgment confirmed that there was no spare capacity
partial reopening of a review investigation was found to
in the USA during the RIP and that it was therefore
be unwarranted.
unlikely that an increased amount of ethanolamines
would be exported into the Union on that basis. They
claimed that it was therefore also not necessary to
analyse other factors such as the impact of trade
(25) The
claim
that
the
introduction
of
deadlines
to
conclude
defence measures in third countries, the possible devel
anti-dumping investigations prevents the Commission
opment of demand in the USA and in other markets or
from extending the investigation beyond the 15-
the downward pressure of prices. Moreover, Huntsman
months statutory limit (recital 17 above) was also
argued that, in the light of the Court’s finding of the lack
found to be unwarranted. It is considered that this
of spare capacity in the USA during the RIP, it was no
deadline is not relevant for the implementation of a
longer possible for the Commission to re-analyse the
Court judgment. Indeed, such deadline only governs the
likelihood of recurrence of dumping and of injury and
completion of the initial review investigation from the
to conclude in the framework of this partial re-opening
date of initiation to the date of definitive action, and does
that there was a likelihood of recurrence of injurious
not concern any subsequent action that might have to be
dumping. Yet, were the Commission able to revisit the
taken for instance as a result of judicial review. The
likelihood of recurrence of dumping and of injury,
consequence of accepting such claim would make it
Huntsman considered that there would be no evidence
impossible for the institutions to take account of the
to demonstrate that the requirements of Article 11(2) of
General Court’s findings (as Article 266 TFEU requires).
the basic Regulation would be met. As regards the like
Indeed, the General Court’s judgment will always be
lihood of recurrence of dumping, Huntsman opined that,
handed down at a time when the deadline for the inves
on the basis of the finding that during the RIP there was
tigation has expired. Furthermore, it is noted that any
no dumping for Dow Chemical, the biggest exporter by
other interpretation would mean that, for example, a
far, there was no likelihood of recurrence of dumping on
successful legal action brought by one party would be
a country-wide basis after the RIP if the anti-dumping
without any practical effect for that party if the expiry of
duties would be withdrawn.
the time limit to conclude the original investigation
would not permit the implementation of a judgment of
the General Court. This would be at odds with the
principle that all parties should have the right to
effective judicial review.
(22) According
to
Huntsman,
the
recurrence
of
injury
would
be unlikely in view of the absence of unused production
capacity which results in very little leeway for increasing
exports to the Union after the RIP. Huntsman maintained
(26) Concerning the claim that the Commission would not be
that such conclusion is corroborated by the fact that,
able to legally remedy the errors of assessment found to
according to the SRI report ( 1 ), the expected growth of
be contained in the contested Regulation and that the
consumption in the USA does not differ significantly
only mean to implement the judgment is to repeal the
from that of the other markets.
existing measures (recital 18 above), the following should
( 1 ) Chemical Economics Handbook Product Review, ‘Ethanolamines’, SRI
( 2 ) Case C-458/98 P Industrie des Poudres Sphériques v Council [2000] ECR
Consulting.
I-8147.

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L 86/4
EN
Official Journal of the European Union
26.3.2013
be noted. The Court has already established that the
exporting producers cooperated with the third expiry
annulment of a Regulation also implies the possibility
review investigation. During that investigation, it was
of remedying the aspects of the amending Regulation
established that INEOS Oxide LLC (‘INEOS’) did not
which led to its annulment, while leaving unchanged
have any spare capacity during the RIP, whereas Dow
the uncontested parts which are not affected by the
Chemical had some. The verified information shows
judgment — as was held in the IPS judgment. The insti
that Dow Chemical did not use its spare capacity to
tutions are therefore required to have regard not only to
engage in low-price exports during the RIP although it
the operative part of the judgment but also to the
could have done so given the low level of the measures
grounds which led to the judgment and constitute its
when expressed at an ad valorem equivalent.
essential basis, in so far as they are necessary to
determine the exact meaning of what is stated in the
operative part ( 1 ). The procedure for replacing an illegal
measure may thus be resumed ( 2 ). Hence, this claim is
also considered to be unwarranted.
(31) Moreover,
the
cooperating
companies,
Dow
Chemical
and INEOS, represented during the RIP together 91,6 %
of exports from the US into the Union. The total exports
of Dow Chemical and INEOS amounted to 30 000-
(27) The General Court, as also noted by Stepan and
35 000 tonnes; exports from non-cooperating
Hunstman (see recital 19), found that, during the inves
companies were not more than 3 000-4 000 tonnes.
tigation that resulted in the adoption of the third expiry
The country-wide dumping margin during the RIP was
review Regulation, the institutions could not have come
de minimis and imports from non-cooperating companies
to the conclusion that dumping had continued during
represented less than 1 % of the Union market. For
the RIP, nor that there was a likelihood of continuation
confidentiality reasons the above figures have either
of dumping. The vast majority of imports from the USA
been given in the form of ranges or are not exact.
namely, as the Court noted, more than 85 % from Dow
Chemical, had entered the Union at non-dumped prices.
Moreover, that situation should have resulted in a finding
that the weighted average margin for imports of the
product at issue originating in the USA was negative.
(32) As
mentioned
in
recital
16,
the
Union
industry
referred
The Court concluded that the institutions were
to various factors which would indicate that, according
therefore obliged to demonstrate that there was a like
to them, there was still a likelihood of a recurrence of
lihood of a recurrence of dumping (
dumping after 2008. However, market conditions have

3 ).
not changed materially since the publication of the third
expiry review Regulation. Those circumstances are also
acknowledged by the Union industry. However, it should
(28) The analysis of the likelihood of the recurrence of
be noted that as mentioned in recitals 30 and 31, given
dumping is in this case, as all interested parties
the low level of the measures and the lack of spare
recognise explicitly or implicitly, linked to the calculation
capacity from INEOS as well as the absence of
of the spare production capacity in the USA. Some
dumping from Dow Chemical, there is no indication
interested parties contend that the General Court
that the repeal of the measure would be likely to
confirmed that there was no significant spare capacity
change the situation.
in the USA during the RIP. The Court found that the
calculation methodology resulting in a spare production
capacity of ethanolamines of 60 000 tonnes during the
RIP was confusing and that the resulting number of
60 000 tonnes was in conflict with the evidence relied
(33) An
exporting
producer
commented
that
the
third
expiry
on in the case ( 4 ).
review should not have concluded with Implementing
Regulation (EU) No 54/2010 imposing measures. The
exporting producer requested that measures be repealed
with retroactive effect so that all duties paid since the
(29) As
mentioned
in
recital
15,
the
Union
industry
has
date of entry into force of Implementing Regulation (EU)
submitted that, based on PCI data, there would be a
No 54/2010 be reimbursed to all importers who duly
country-wide spare capacity in 2008 exceeding 60 000
paid them.
tonnes. It is however noted that, in the calculation
submitted by the Union industry, the total US production
capacity had been used, i.e. no downwards adjustment to
90 % thereof had been done.
(34) That
claim
is
rejected,
as
exporting
producers
other
than
Dow Chemical could also have brought an action for
annulment against the Regulation — which was
(30) As regards the allegations regarding the calculation of the
annulled only in so far as it concerned the applicant,
spare capacity during the RIP, it is noted that two
Dow Chemical. Therefore, according to the principle of
legal certainty and following the case-law of the Court ( 5 ),
( 1 ) Case C-458/98 P Industrie des Poudres Sphériques v Council,
the Regulation became definitive as regards the other
paragraph 81.
exporting producers.
( 2 ) Case C-458/98 P Industrie des Poudres Sphériques v Council,
paragraph 82.
( 3 ) Case T-158/10 The Dow Chemical Company v Council, paragraph 45.
( 5 ) Case C-239/99 Nachi Europe GmbH v Hauptzollamt Krefeld [2001]
( 4 ) Case T-158/10 The Dow Chemical Company v Council, paragraph 54.
ECR I-1220.

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EN
26.3.2013 Official
Journal
of
the
European
Union
L
86/5
2.4. Conclusion
Implementing Regulation (EU) No 54/2010 had already
been annulled in so far as Dow Chemical is concerned,
(35) Taking
account
of
the
comments
made
by
parties
and
the measures are not in force as of the date of entry into
the analysis thereof, it was concluded that the implemen
force of Implementing Regulation (EU) No 54/2010
tation of the Judgment implies that during the investi
(23 January 2010).
gation that resulted in the adoption of Implementing
Regulation (EU) No 54/2010, the institutions could not
have come to the conclusion that dumping had
(41) The
fourth
expiry
investigation
concerning
anti-dumping
continued during the RIP, nor that there was a likelihood
duties in force on imports of ethanolamines originating
of continuation of dumping. Moreover, the institutions
in the USA should also be terminated without
should also have concluded that there was no likelihood
reimposing a duty. With respect to imports from Dow
of recurrence of dumping.
Chemical, that expiry review has been deprived of its
object.
(36) On the basis of the above, the anti-dumping duty on
(42) The
partial
interim
review
limited
in
scope
to
the
exam
ethanolamines should not have been reintroduced. With
ination of dumping should be terminated on the basis of
respect to Dow Chemical, it should be recalled that
the repeal of the existing measures,
Implementing Regulation (EU) No 54/2010 has already
been annulled in so far as Dow Chemical is concerned by
the judgment of the General Court in case T-158/10.
HAS ADOPTED THIS REGULATION:
Therefore, for the sake of clarity, it should be pointed
out that, with regard to imports of ethanolamines from
Dow Chemical, the anti-dumping duties are no longer in
Article 1
force as of the date of entry into force of Implementing
Regulation (EU) No 54/2010 (23 January 2010).
1. The partial reopening of the anti-dumping investigation
concerning imports of ethanolamines currently falling within
CN codes ex 2922 11 00 (monoethanolamine) (TARIC code
2922 11 00 10), ex 2922 12 00 (diethanolamine) (TARIC code
3. FOURTH EXPIRY REVIEW
2922 12 00 10) and 2922 13 10 (triethanolamine), originating
in the United States of America is hereby terminated without
(37) In
light
of
the
above,
and
recital
35
in
particular,
it
is
reimposing the duties, and measures are repealed.
considered that the fourth expiry review should be
terminated without reimposing a duty. With regard to
Dow Chemical, the fourth expiry review was deprived
2. With
respect
to
imports
from
The
Dow
Chemical
of its object by the Judgment and no legal basis exists
Company, no legal basis exists for the collection of anti-
for the collection of anti-dumping duties on imports
dumping duties on imports from The Dow Chemical
from Dow Chemical as of 23 January 2010.
Company as of 23 January 2010.
Article 2
4. PARTIAL INTERIM REVIEW
The expiry review investigation of the anti-dumping investi
(38) Taking
account
of
the
findings
summarised
in
recital
35
gation concerning imports of ethanolamines from all
above, it is considered that the review should be
exporting producers, currently falling within CN codes
terminated, since the basis for the very existence of the
ex 2922 11 00
(monoethanolamine)
(TARIC
code
measures, i.e., a finding of a likelihood of continuation or
2922 11 00 10), ex 2922 12 00 (diethanolamine) (TARIC code
recurrence of injurious dumping, is missing.
2922 12 00 10) and 2922 13 10 (triethanolamine), originating
in the United States of America, initiated on 21 January 2012,
is hereby terminated without imposition of measures. With
5. COMMENTS RECEIVED
respect to imports from The Dow Chemical Company, that
expiry review has been deprived of its object.
(39) All
parties
were
informed
of
the
essential
facts
and
considerations on the basis of which it was intended to
recommend that the existing measures be terminated.
Article 3
They were also granted a period within which they
could make representations subsequent to that disclosure.
The partial interim review limited in scope to the examination
Their comments were duly considered, but were not such
of dumping concerning imports of ethanolamines from The
as to change the conclusions.
Dow Chemical Company currently falling within CN codes
ex 2922 11 00
(monoethanolamine)
(TARIC
code
2922 11 00 10), ex 2922 12 00 (diethanolamine) (TARIC code
2922 12 00 10) and 2922 13 10 (triethanolamine), originating
6. CONCLUSIONS
in the United States of America is hereby terminated.
(40) It follows from the above that the partial reopening
investigation should be terminated and that the anti-
Article 4
dumping measures on imports of ethanolamines orig
inating in the USA should be repealed. With respect to
This Regulation shall enter into force on the day following its
imports of ethanolamines from Dow Chemical, since
publication in the Official Journal of the European Union.

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L 86/6
EN
Official Journal of the European Union
26.3.2013
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 21 March 2013.
For the Council
The President
P. HOGAN

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