HTML PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN"L 168/38
EN
Official Journal of the European Union
28.6.2012
COMMISSION DECISION
of 27 June 2012
terminating the anti-dumping proceeding concerning imports of certain concentrated soy protein
products originating in the People’s Republic of China
(2012/343/EU)
THE EUROPEAN COMMISSION,
parties were given an opportunity to make their views
known in writing and to request a hearing within the
time limit set in the notice of initiation.
Having regard to the Treaty on the Functioning of the European
Union,
(4) All
interested
parties,
who
so
requested
and
showed
that
there were particular reasons why they should be heard,
Having regard to Council Regulation (EC) No 1225/2009 of
were granted a hearing.
30 November 2009 on protection against dumped imports
from countries not members of the European Community ( 1 )
(‘the basic Regulation’), and in particular Article 9 thereof,
(5) All
oral
and
written
comments
submitted
by
the
interested parties were considered and taken into
After consulting the Advisory Committee,
account where appropriate.
Whereas:
(6) In
view
of
the
apparent
high
number
of
exporting
producers and unrelated Union importers, sampling
was envisaged in the notice of initiation, in accordance
A. PROCEDURE
with Article 17 of Regulation (EC) No 1225/2009. In
order to enable the Commission to decide whether
1. INITIATION
sampling would be necessary and, if so, to select a
sample, all exporting producers and unrelated Union
(1) On
19
April
2011,
the
Commission
announced,
by
a
importers were asked to make themselves known to
notice published in the Official Journal of the European
the Commission and to provide, as specified in the
Union ( 2 ) (‘notice of initiation’), the initiation of an anti-
notice of initiation, basic information on their activities
dumping proceeding with regard to imports of certain
related to the product concerned during the period from
concentrated soy protein products originating in the
1 January 2010 to 31 December 2010 (‘the investigation
People’s Republic of China (‘PRC’ or ‘the country
period’ or ‘the IP’). The authorities of the PRC were also
concerned’).
consulted on the sampling of exporting producers.
(2)
The proceeding was initiated as a result of a complaint
2.1. SAMPLING OF EXPORTING PRODUCERS
lodged on 7 March 2011 by Solae Europe S.A. (‘the
complainant’) representing a major proportion, in this
(7) Twenty
exporting
producers
provided
the
information
case more than 25 %, of the total Union production of
requested in the sampling exercise and offered
certain concentrated soy protein products
( 3 ). The
cooperation within the deadlines. The EU sales volumes
complaint contained evidence of dumping of the said
reported by these (groups of) exporting producers repre
product and of material injury resulting there from,
sented around 90 % of the imports concerned during the
which was considered sufficient to justify the initiation
investigation period. Therefore, the cooperation was
of a proceeding.
considered high.
2. PARTIES CONCERNED BY THE PROCEEDING
(8) Given
the
high
number
of
(groups
of)
exporting
(3) The
Commission
officially
advised
the
complainant,
the
producers which indicated their willingness to cooperate,
other known Union producer, the exporting producers
it was decided that sampling was necessary with regard
and the representatives of the PRC, importers, suppliers
to exporting producers.
and users known to be concerned, as well as their associ
ations, of the initiation of the proceeding. Interested
(9) The
Commission
selected,
in
accordance
with
Article
17
( 1 ) OJ L 343, 22.12.2009, p. 51.
of the basic Regulation, a sample based on the largest
( 2 ) OJ C 121, 19.4.2011, p. 71.
representative volume of exports which could reasonably
( 3 ) In spite of its relation with a Chinese group of exporting producers,
be investigated within the time available. The sample thus
the complainant is considered to constitute a Union producer,
especially since available evidence indicates that exports by that
selected initially consisted of two groups of related
related group to the EU are very limited.
companies, representing, inter alia, five individual

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EN
28.6.2012 Official
Journal
of
the
European
Union L
168/39
producers and accounting for 40 % to 50 % of the export
(13) MET/IT
claim
forms were also sent to non-sampled
volume of the product concerned from the PRC to the
(groups of) exporting producers which had stated their
EU during the investigation period. After indications had
intention to request individual examination as per
been received that these two groups would possibly need
Article 17(3) of the basic Regulation.
to be treated as a single entity for the purpose of
imposing an anti-dumping duty (see recital 41), the
sample was expanded by including a third group of
exporting producers, thus accounting for 45 % to 60 %
(14) The
Commission sent questionnaires
to the sampled
of Chinese imports. In accordance with Article 17(2) of
exporting producers as well as to the non-sampled
the basic Regulation, the parties concerned and the
exporting producers which had stated their intention to
Chinese authorities were consulted on the initial
request individual examination, to the complainant and
selection as well as the later expansion of the sample.
the other known Union producer, to the sampled
Two related exporting producers objected to the
importers, and to all known users.
expansion of the sample as they argued that, if the
sample had to be expanded, they would qualify better
as a third group of exporting producers to be included
in the sample. It should be underlined that, in accordance
(15) After
having
requested
information
from
producers
in
with the provisions of Article 17(1) of the basic Regu
the possible analogue countries Brazil, Israel and the
lation, the proposed new sample consisted of the three
United States of America (‘the USA’), questionnaires
groups of exporting producers with the largest EU sales
were also sent to the producers that had offered
volumes of the product concerned during the IP.
cooperation in Brazil and Israel for the purpose of estab
Moreover, the EU sales volumes of the product
lishing normal value for companies to which MET could
concerned during the IP by the two related producers
not be granted (see recitals 60 to 64 below).
which claimed that they should have been selected as a
third group were very small, representing less than 10 %
of such volumes of the selected third group. Therefore it
was confirmed that the representativity of the expanded
(16) Full
questionnaire
replies
were
received
from
the
three
sample was best served by the proposed three groups. No
sampled groups of exporting producers in the PRC,
further objections were raised.
one Brazilian producer, one Israeli producer, one Union
producer (with one production facility in Belgium and
another one in Denmark), two (out of three) sampled
importers and four users in the EU. Another Brazilian
2.2. SAMPLING OF IMPORTERS
producer submitted an incomplete reply.
(10) After
examination
of
the
information
submitted,
and
given the high number of importers which indicated
their willingness to cooperate, it was decided that
(17) In
addition,
claims
for
individual
examination
(IE)
as
per
sampling was necessary with regard to unrelated
Article 17(3) of the basic Regulation were received from
importers.
one non-sampled exporting producer (‘applicant A’) and
one group of related non-sampled exporting producers
(jointly ‘applicant B’) ( 1 ). After having analysed the
information submitted by the sampled parties, as well
(11) Seven
unrelated
importers,
accounting
for
20
%
of
the
as these requests including duly completed question
total imports of the product concerned into the Union,
naires, it was considered that the number of (groups
agreed to be included in the sample. Three importers,
of) exporting producers to be investigated in the
accounting for around 17 % of the total imports from
sample alone was so large that additional IEs would be
the PRC and almost 90 % of imports of the cooperating
unduly burdensome and would prevent completion of
importers, were selected for the sample. In accordance
the investigation in good time. Therefore, the applicants
with Article 17(2) of the basic Regulation, the parties
were informed that their request for an individual exam
concerned were given the opportunity to comment on
ination was rejected.
the selection of the sample. No objections were raised.
One of the sampled importers stopped its cooperation
and did not provide a questionnaire reply.
(18) Applicant
B
contested
this
determination
not
to
consider
its request for IE. It submitted that this refusal would be
contrary to Article 17(3) of the basic Regulation and
2.3. QUESTIONNAIRE REPLIES AND VERIFICATIONS
Article 6.10 of the Anti-Dumping Agreement (ADA), as
interpreted recently by the WTO Dispute Settlement
(12) In
order to allow
the sampled
groups
of exporting
Body in the Fasteners case (
producers in the PRC to submit a claim for market

2 ). Secondly, such refusal
would be contrary to the fundamental principle of
economy treatment (MET) or individual treatment (IT),
proportionality.
if they so wished, the Commission sent them MET/IT
claim forms. In this respect, two sampled groups of
companies requested MET pursuant to Article 2(7) of
( 1 ) For information, it is noted that applicant B is related to the
the basic Regulation, whereas the remaining sampled
complainant.
( 2 ) WTO Report of the Appellate Body of 15 July 2011,
group of companies requested IT pursuant to Article 9(5)
WT/DS397/AB/R, European Communities — definitive anti-dumping
of the basic Regulation.
measures on certain iron or steel fasteners from China.

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L 168/40
EN
Official Journal of the European Union
28.6.2012
(19) As concerns the first argument, Article 17(3) of the basic
resulting injury or threat of injury and Union interest.
Regulation as well as Article 6.10 of the ADA explicitly
Verification visits were carried out at the premises of the
allow the investigating authority not to consider requests
following companies:
for IE if the number of exporters and/or producers
involved is so large as to make such a determination
impracticable. The WTO Appellate Body Report in the
(a) Exporting producers in the PRC:
Fasteners case clarified that timely requests for IE should
‘as a rule’ be accepted unless this would be ‘unduly
burdensome’ ( 1 ). In this case, the verification of the ques
tionnaire replies and the replies to the MET claim forms
— Gushen Biological Technology Group Co. Ltd and
of the applicants for IE would entail on-the-spot investi
its related companies, Dezhou,
gations at one company (applicant A) and two other
companies (those forming part of applicant B). During
these on-the-spot investigations, compliance with the
— Shandong Crown Soya Protein Co. Ltd and its
provisions of Article 2(7)(c) would need to be verified
related companies, Shenxian, Qingdao, Yucheng,
as well as all these entities’ reported structure, costs
(including production costs and purchases), sales and
profitability. In view of the large number of entities
already investigated within the sample, to add an
— Shandong Sinoglory Health Food Co. Ltd and its
additional applicant would indeed have been unduly
related companies, Liaocheng, Qingdao;
burdensome and would have seriously jeopardised the
completion of the investigation in good time. Therefore,
the decision not to accept these requests for individual
(b) Union producer:
examination is justified by the law and not in breach
with the principle of proportionality.
— Solae Europe, with production facilities in:
(20) After being informed that an IE would be too
burdensome, applicant B later proposed to withdraw its
MET claim if it would be agreed to examine it for IT.
— Belgium, Ieper (Solae Belgium), and
Because it alleged to have made only one small export
transaction during the IP and would no longer claim
MET, it argued that the Commission would not need
— Denmark, Aarhus (Solae Denmark);
to conduct an on-the-spot verification in the PRC to
make a dumping determination and that it would be
enough to verify that single export transaction while
verifying the questionnaire reply of the complainant in
(c) Producers in the analogue country:
the EU. On this basis, the exporter argued that granting
individual examination would not be burdensome.
— Bremil Industria De Produtos Alimenticios Ltda.,
Arroio do Meio,
(21) However,
if
IE
were
granted,
an
on-the-spot
verification
of applicant B would be necessary, since without on-the-
spot verification in the PRC of both producers in the
— Solae do Brasil Ind. Com. Alimentos Ltda., Esteio,
group, the existence of other sales to the EU during
Sao Paulo.
the IP could not be excluded. Such verification would
have been unduly burdensome given the size of the
sample with three big groups of companies. The
request was therefore rejected.
3. INVESTIGATION PERIOD
(24) The
investigation
of
dumping
and
injury
covered
the
period from 1 January 2010 to 31 December 2010
(22) The
decision
not
to
accept
the
requests
for
individual
(‘investigation period’ or ‘IP’). The examination of trends
treatment has been maintained. In view of the grounds
relevant for the assessment of injury covered the period
cited above, it has been definitively decided that requests
from 2007 to the end of the investigation period (‘period
for individual examination could not be granted as they
considered’).
would render the investigation unduly burdensome and
would prevent the completion of the investigation in
good time.
4. FINDINGS AT THE INTERIM STAGE
(25) At the interim stage it was considered that the
(23) The
Commission
sought
and
verified
all
the
information
imposition of provisional measures would not be appro
deemed necessary for a determination of dumping,
priate in particular in view of the need to further analyse
the causal link between the dumped imports of certain
( 1 ) See aforementioned Report of the Appellate Body of 15 July 2011,
concentrated soy protein products from the PRC and the
recital 319.
injury suffered by the Union industry.

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EN
28.6.2012 Official
Journal
of
the
European
Union L
168/41
5. SUBSEQUENT PROCEDURE
document and argued that exclusion of data from the
French plant that closed in 2009 (i.e. in the middle of
(26) Subsequent to the disclosure of the essential facts and
the period considered) resulted in an inconsistency in the
considerations on the basis of which it was decided not
remaining data (with ADM data still included).
to impose provisional measures (‘interim disclosure’),
Consequently, the sales and market share of EU
several interested parties made written submissions
producers of the product under investigation were artifi
making known their views on the interim findings. The
cially inflated.
parties who so requested were granted the opportunity to
be heard.
(33) The complainant argued that given relatively stable
(27) The Commission continued to seek information it
demand, some of the supply provided by the Solae
deemed necessary for its final findings. In addition to
French plant until it closed in 2009 was taken over by
the verifications mentioned in recital 23 above, a
their competitor in the EU, ADM. Consequently,
further verification was carried out at the premises of
disregarding the data from the French plant led to a
Kerry in Bristol, UK, one of the importers and users of
misleading comparison of year 2008 data, when ADM
soy proteins which cooperated in the investigation.
had only a smaller share of the market for animal
concentrates, with the IP data, when AMD had a much
bigger share of that market.
B. PRODUCT CONCERNED AND LIKE PRODUCT
1. PRODUCT CONCERNED
(34) In
particular,
the
complainant
provided
information
on
(28) The
product
concerned
was
defined
in
the
notice
of
technical and chemical differences between the concen
initiation as concentrated soy protein products,
trates for animal feed on the one hand and other concen
containing by weight 65
% or more of proteins
trates and isolates on the other hand. Also, different
(N × 6,25) calculated on the dry matter by excluding
distribution channels are used for these subgroups. In
added vitamins, minerals, amino acids and food additives,
addition, concentrates for animal feed fall within a
originating in the PRC (‘the product concerned’ or
different CN code than other concentrates (for food)
‘CCSPP’) and currently falling within CN codes
and isolates.
ex 2106 10 20,
ex 2106 90 92,
ex 2309 90 10,
ex 2309 90 99 (ex 2309 90 96 as from 1 January
2012) and ex 3504 00 90.
(35) Following the submission of the complainant, one
exporter disagreed with the request to limit the product
scope. However, this exporter misunderstood the request
(29) Within
the
above
product
scope,
two
main
product
and had considered that the request was to exclude all
groups can be distinguished: (i) soy protein concentrates
the soy protein concentrates, while in fact it refers only
(‘SPCs’ or ‘concentrates’ including simple/basic concen
to simple SPC for animal feed. In addition, the exporter
trates and further processed concentrates), which have a
provided no factual reasoning as to why the request
protein content of more than 65 % but less than 90 %;
would be unfounded.
and (ii) isolated soy proteins (‘ISPs’ or ‘isolates’), which

have a protein content of 90 % or more.
(36) It is also noted that, based on the information collected
(30) It was also established that whereas the simple
during the investigation, imports of soy protein concen
concentrate is a fairly basic product with low value
trates for animal feed account for less then 1 % of the
added, isolates and further processed concentrates
total Chinese imports in the Union of the product under
require substantially more processing and are
investigation (as originally defined).
consequently higher value added products.
(31) The
product
scope as described
above includes
also
(37) Given the above, and in particular the clear technical,
simple (not further processed) concentrates for animal
chemical and market related differences, it is considered
feed. These were produced in the period considered in
appropriate to limit the product scope by excluding
the EU by one plant of the complainant located in France
simple soy protein concentrates of a kind used in
and by another company, ADM, based in the
animal feeding. Consequently, the product concerned is
Netherlands.
concentrated soy protein products, excluding such
products of a kind used in animal feeding, and
containing by weight 65
% or more of proteins
(N × 6,25) calculated on the dry matter by excluding
(32) Following the interim disclosure the complainant
added vitamins, minerals, amino acids and food additives,
requested a change of the product scope by eliminating
originating in the PRC (‘the product concerned’ or
concentrates used for animal feed. The complainant
‘CCSPP’) and currently falling within CN codes
opposed the approach proposed in the interim
ex 2106 10 20, ex 2106 90 92 and ex 3504 00 90.

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L 168/42
EN
Official Journal of the European Union
28.6.2012
(38) The product concerned is mainly used in the food
1. Business decisions and costs are made in response to
industry in meat applications and meat substitutes.
market conditions and without significant State inter
Other food applications include salad dressings, soups,
ference;
beverage powders, energy bars, non-dairy creamers,
frozen desserts, whipped toppings, infant formulas,
breads, breakfast cereals, pastas etc. Due to its functional
2. Accounting records are independently audited, in line
ities, the product concerned also has some specific appli
with international accounting standards and applied
cations including adhesives, asphalts, resins, cleaning
for all purposes;
materials, cosmetics, inks, leather, paints, paper
coatings, pesticides/fungicides, plastics, polyesters and
textile fibres.
3. There are no significant distortions carried over from
the former non-market economy system;
(39) Despite
some
differences
in
possible
final
applications,
the different types of the product concerned, concen
4. Legal certainty and stability is provided by bankruptcy
trates and isolates, all share the same basic physical
and property laws; and
and chemical characteristics. They are therefore
considered to constitute one single product.
5. Currency exchanges are carried out at the market rate.
2. LIKE PRODUCT
(44) MET was claimed by the Crown Group and the Sinoglory
(40) The
product
concerned
and
certain
concentrated
soy
Group.
protein products produced and sold on the domestic
market of the PRC, and on the domestic market of
Brazil, which served as an analogue country, as well as
(45) For both the Crown and the Sinoglory Groups, the
certain concentrated soy protein products produced and
Commission sought all information deemed necessary
sold in the Union by the Union industry were found to
and verified the information submitted in the MET
have the same basic physical, chemical and technical
claim forms and all other information deemed necessary,
characteristics and uses. Therefore, these products are
at the premises of the companies in question.
considered to be alike within the meaning of Article 1(4)
of the basic Regulation.
(46) The
investigation
established
that
both
groups
did
not
meet the requirements of the criteria set forth in
C. DUMPING
Article 2(7)(c) of the basic Regulation to be granted MET.
1. RELATIONSHIP BETWEEN SINOGLORY GROUP AND
GUSHEN GROUP
(47) In
particular,
the
companies
from
both
groups
failed
to
meet criteria 1, 2, and 3.
(41) The
sampled
exporting
producers
consisted
of
Shandong
Crown Soya Protein Co. Ltd and its related companies
(‘Crown Group’), Gushen Biological Technology Group
Co. Ltd and its related companies (‘Gushen Group’) and
FIRST GROUP
Sinoglory Health Food Co. Ltd and its related companies
(48) In
the
case
of
one
group,
one
producer
in
the
group
did
(‘Sinoglory Group’). At an early stage of the investigation
not meet criterion 1 because of the existence of an
it was considered that Gushen Group and Sinoglory
obligation to sell all its products on the international
Group might have to be treated as related exporters.
market. Even though the company claimed that this
However, following the explanations provided by the
provision was not binding, the company actually has
exporters concerned, it was finally decided to consider
never sold on the domestic market (with the exception
Gushen Group and Sinoglory Group as separate entities
of a minor sale in 2007). As for criterion 2, several
for the purpose of this investigation.
accounting problems were found for both producers in
the group. Moreover, one of the companies in the group
did not submit any MET claim form. Furthermore, one
2. MARKET ECONOMY TREATMENT (MET)
company in the group let out part of its land without
any record of the rental receipts in its accounts since no
(42) Pursuant
to
Article
2(7)(b)
of
the
basic
Regulation,
in
invoices or proofs of payment for these payments were
anti-dumping investigations concerning imports orig
issued. When it moved to a new production site and part
inating in the PRC, normal value shall be determined
of its equipment became idle, no test for impairment was
in accordance with paragraphs 1 to 6 of the said
made. Finally, when one of the companies in the group
Article for those producers which were found to meet
bought a new piece of land, it received a government
the criteria laid down in Article 2(7)(c) of the basic
transfer to be used as compensation for the villagers who
Regulation.
had to move. However, this payment was not used for
that purpose but to reduce the cost of the land use right.
Regarding criterion 3, the two producers in the group
(43) Briefly,
and
for
ease
of
reference
only,
these
criteria
are
swap raw material from a common supplier without any
set out in summarised form below:
proper documentation or records, on the basis of very

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28.6.2012 Official
Journal
of
the
European
Union L
168/43
informal arrangements without any adjustments for price
(53) Following
disclosure
of
the
detailed
MET
findings
and
the
differences or fees: this constitutes a form of barter trade.
interim disclosure, the group claimed that de facto sales
Furthermore, one producer could use the land belonging
of the two producers were not subject to any sales
to its majority shareholder without any payments for
restriction. According to the companies, the fact that
several years. According to that company, this was
their respective export volumes were in line with the
possible because the related land use rights had been
restrictions in their Articles of Association was only
acquired for a very low price by the parent company
due to the supply-demand balance on the soy protein
in the context of its privatisation.
market. They underlined that these restrictive provisions
had been removed from these texts soon after the IP.
Moreover, regarding criterion 2, the group claimed that
(49) Following
disclosure
of
the
detailed
MET
findings
and
the
apart from minor accounting mistakes, it had fully
interim disclosure, the group reiterated earlier claims that
complied with Chinese GAAP which they are required
one of the two producers should not be considered as
to implement rather than IAS. With respect to the land
legally related to the rest of the group. However,
use rights, the group claimed that the different value of
concerning this claim, it was found that the two
the two plots of land was due to the levelling costs of
producers were pursuing a coordinated commercial and
one of the two plots. Finally, it was stressed that the free
industrial strategy together with the rest of the group,
rental of another plot of land was due to some adminis
including the barter trade practices mentioned at recital
trative delays before the land use right could actually be
48 above. The claim is therefore rejected.
acquired and that, anyhow, the value of the exemption
was only minor if compared to the company’s oper
ational income.
(50) The
group
also
claimed
that
the
sales
restriction
for
one
of its producers was only mentioned in its Articles of
(54) Regarding
criterion
1,
the
Articles
of
Association
are
part
Association, and not in the business license or certificate
of the documents that are submitted to the authorities
of approval. According to the company, the restriction
and approved when the company is set up. The fact that
was therefore not binding. Moreover, it was claimed that
the company complied with the sales restrictions is
the company which had not submitted a MET claim
considered to be due to a requirement to do so and it
form was not a producing or trading company but
is clear that the content of these documents forms the
rather a payment agent and that the group had applied
basis for the actual operations of the company. Moreover
its best efforts to provide all information available.
it is underlined that the removal of the restrictions from
the Article of Association took place after the IP and is
therefore irrelevant for this investigation. Regarding
(51) However,
as
mentioned
above,
the
producer
in
question
criterion 2, it was clear that the accuracy and reliability
clearly complied with the sales restriction. Moreover, the
of the records could not be confirmed. In addition, the
Articles of Association are part of the documents that are
company’s accounting records should be audited in line
submitted for approval to the authorities when the
with international accounting standards which could not
company is set up and therefore it is clear that the
be confirmed during the verification. With respect to
content of these documents forms the basis for the
criterion 3, no evidence could be submitted during the
actual operations of the company. Finally, concerning
on-the-spot verification in order to substantiate the
the company which did not submit a MET claim form,
levelling costs for the plot of land in question. Finally,
this company was actually found to be involved in
independently of the explanations brought forward, the
certain aspects relating to the export sales of the
fact remains that one of the companies rented its land
product in question and should have therefore
for free during a certain period of time and therefore
submitted a MET claim form. Therefore, both claims
benefited from a subsidy. The comments were therefore
are rejected.
not of a nature to change the MET findings. Those
findings are hereby confirmed.
SECOND GROUP
3. INDIVIDUAL TREATMENT (IT)
(52) In the case of the other group, one of the exporting
(55) Pursuant
to
Article
2(7)(a)
of
the
basic
Regulation,
a
producers was also subject to a limitation of its sales,
country-wide duty, if any, is established for countries
whereby 70 % of its production should be sold for
falling under that Article, except in those cases where
export, and therefore did not comply with criterion 1.
companies are able to demonstrate that they meet all
As for criterion 2, a number of problems concerning
criteria set out in Article 9(5) of the basic Regulation.
depreciation of assets and changes in accounting
Briefly, and for ease of reference only, these criteria are
policies were found. As for criterion 3, the value
set out below:
attributed to two plots of land in one of the companies’
accounts varies significantly, and it is considered that by
acquiring a plot of land at a price clearly below market
— in the case of wholly or partly foreign owned firms
value, the company received a hidden subsidy. Moreover,
or joint ventures, exporters are free to repatriate
another company in the group benefited from free rental
capital and profits,
of a piece of land for one year and has acquired land use
rights at a price lower than the market value. Finally a
number of intra-group guarantees were not disclosed in
— export prices and quantities, and conditions and
the notes to the accounts, in violation of IAS 24.
terms of sale are freely determined,

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L 168/44
EN
Official Journal of the European Union
28.6.2012
— the majority of the shares belong to private persons.
was also mentioned by an exporting producer that the
State officials appearing on the Boards of Directors or
US subsidiary of the complainant would have a dominant
holding key management positions shall either be in
position on the US market, resulting in inflated domestic
minority or it must be demonstrated that the
sales prices.
company is none the less sufficiently independent
from State interference,
(62) In
view
of
these
comments
received,
the
Commission
— exchange rate conversions are carried out at the
sought cooperation from all known CCSPP producers
market rate, and
in Brazil, Israel and the USA by asking them a number
of key questions on their production, sales and local
markets and asking them whether they would be
— State interference is not such as to permit circum
willing to provide more detailed information on their
vention of measures if individual exporters are given
costs and prices, if their country would be selected as
different rates of duty.
an analogue country. Only one US producer and two
Brazilian producers replied by providing the requested
information and offering further cooperation. At a later
(56) The Gushen Group only claimed IT. This claim was
stage, an Israeli producer also submitted a full ques
examined and no element was found to indicate that
tionnaire response. The Commission also endeavoured
the company did not comply with the abovementioned
to obtain information on the aforementioned and other
criteria. It was therefore concluded that Gushen Group
potential markets by other means.
could be granted IT.
(57) Assessment
was
also
made
for
the
Crown
Group
and
(63) The
information
thus
collected
was
carefully
analysed.
It
Sinoglory Group, since MET was not granted to these
was confirmed that the US product was predominantly
companies. In both cases, no element was found to
made from GM soy beans, as opposed to CCSPP from
indicate that the companies did not comply with the
the PRC, Brazil or Israel. However, no conclusion could
abovementioned criteria. It is therefore concluded that
be drawn with regard to the impact of that difference in
both company groups could be granted IT.
main raw materials on product characteristics, uses, cost
or price. Furthermore, although the Brazilian market had
an import duty of 14 %, there were significant volumes
(58) Following the final disclosure, the complainant expressed
of imported CCSPP in Brazil competing with the locally
its disagreement with the granting of IT to the sampled
produced product. In fact, the two Brazilian producers,
exporter groups. However, in view of the non-imposition
which both offered cooperation, were accounting,
of measures it has not been necessary to examine this
roughly, for three quarters of the consumption in
further.
Brazil, whereas the US market appeared to be clearly
dominated by two very large domestic producers, of
which only one had offered cooperation. Therefore,
4. NORMAL VALUE
although the total size of the US market was bigger,
there appeared to be stronger conditions of competition
(59) As explained in recital 46, MET was not granted to the
in Brazil, with two large domestic producers and
two sampled groups that had requested it. The third
significant imports. Moreover, overall, the domestic
sampled group had not applied for MET. Therefore, in
sales volumes of the cooperating Brazilian producers
accordance with Article 2(7) of the basic Regulation,
appeared to be of the same order of magnitude as the
normal value for all groups was established on the
volume of sales to the EU by the sampled Chinese
basis of the prices or constructed value in an analogue
producers, and the product ranges comparable. Finally,
country.
it was found that the Brazilian domestic market was
significantly bigger than the Israeli one.
(a) Analogue country
(60) In the notice of initiation, the Commission indicated its
(64) On the basis of the above, Brazil was selected as an
intention to use the USA as an appropriate analogue
analogue country. This selection is confirmed.
country for the purpose of establishing normal value
for the PRC and invited interested parties to comment
on this.
(b) Determination of normal value
(61) A number of comments were received and other
(65) Pursuant to Article 2(7)(a) of the basic Regulation,
countries were proposed as an alternative, in particular
normal value for the exporting producers was established
Brazil and Israel. The main argument submitted against
on the basis of the verified information received from the
the USA as an analogue country was that in the USA the
producers in the analogue country. Where product types
product concerned would be made from genetically
in the domestic market of the analogue country were not
modified soy beans, whereas this would not be the
made in the ordinary course of trade or where no
case in the PRC. The use of genetically modified (GM)
resembling types were sold, the normal value was
soy beans would potentially result in the product being
constructed pursuant to Article 2(3) and 2(6) of the
used by different users and/or processing industries. It
basic Regulation.

---

EN
28.6.2012 Official
Journal
of
the
European
Union L
168/45
(66) Following the interim disclosure the calculations were
(74) On this basis, the definitive levels of dumping established
further refined to also take into account comments
are as follows:
submitted by the parties.
Company Dumping
margin
5. EXPORT PRICE
Crown Group 59,4
%
(67) The
exporting
producers
made
export
sales
to
the
Union
either directly to independent customers or through
Gushen Group 55,8
%
related trading companies located in the PRC. The
Sinoglory Group 67,0
%
export price was therefore in all cases established
pursuant to Article 2(8) of the basic Regulation,
Cooperating non-sampled
61,3 %
namely on the basis of export prices actually paid or
companies
payable.
Other companies 67,0
%
(68) Following the interim disclosure the calculations were
D. INJURY
further refined to also take into account comments
submitted by the parties.
1. INTRODUCTORY REMARKS
(75) Following
the
revision
of
the
product
scope
(exclusion
of
concentrates for animal feed), one company — ADM in
6.
the Netherlands, whose production is limited to concen
COMPARISON
trates for animal feed — is no longer considered to form
(69) The
normal
value
and
export
prices
were
compared
on
part of the Union industry. Consequently, only the
an ex-works basis. For the purpose of ensuring a fair
complainant (Solae) manufactured the like product in
comparison between the normal value and the export
the Union during the investigation period. Solae has
price, due allowance in the form of adjustments was
currently two manufacturing sites in the EU — one in
made for differences affecting prices and price compara
Belgium producing soy protein isolates and another in
bility in accordance with Article 2(10) of the basic Regu
Denmark producing soy protein concentrates (the basic
lation. Appropriate adjustments for discounts, transport,
SPC and further processed high value concentrates for
insurance, handling, loading and ancillary costs, packing,
which the basic SPC serves as an intermediate product).
credit costs, and indirect taxation were granted in all
Another manufacturing site of Solae in Boudreaux,
cases where they were found to be reasonable, accurate
France, that manufactured and marketed only simple
and supported by verified evidence.
concentrates for animal feed closed down at the
beginning of 2009.
7. DUMPING MARGINS
(76) As far as the production in the EU is concerned, the
investigation revealed that Solae’s manufacturing
(70) The
definitive
dumping
margins
were
expressed
as
a
percentage of the CIF Union frontier price, duty unpaid.
process is based exclusively on a tolling agreement

with its Swiss mother company, Solae Europe. Under
this agreement Solae Belgium and Solae Denmark
process the raw material provided by Solae Europe
(71) For each of the three cooperating groups of exporting
against a service fee. Throughout the process, Solae
producers in the sample, a dumping margin was estab
Europe remains the only proprietor of the raw materials,
lished on the basis of a comparison of the weighted
any intermediate products and the finished goods.
average normal value in the analogue country with the
weighted average export price, in accordance with
Article 2(11) and (12) of the basic Regulation.
(77) Given that the ownership of the raw material and
finished goods remains with the principal, the tolling
arrangements are legally different from other possible
production arrangements. However, in the current case,
(72) For the cooperating non-sampled companies the
the value added by those companies in the EU amounts
dumping margin was calculated as an average of the
to over 50 % of the cost of manufacturing. This share of
three sampled groups of companies.
value added reflects, also, the technological and capital
investments based in the Union. The net value of such
investments in the EU is significant and the industry
employs an important number of persons in the Union.
(73) Given
the
high
level
of
cooperation
in
the
investigation,
with cooperating companies representing around 90 % of
all imports from the PRC during the IP, for any non-
cooperating companies, the country-wide margin was
(78) It
should
also
be
noted
that
the
tolling
operations
in
the
established using the highest of the margins found for
EU would constitute ‘the last substantial transformation’
the sampled groups of companies.
and, as such, confer EU origin to the products.

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L 168/46
EN
Official Journal of the European Union
28.6.2012
(79) Due
to
the
foregoing,
it
was
therefore
concluded
that
an
processing operations which did not change the chemical
economic activity like that performed by Solae Belgium
composition or the physical characteristics of the product
and Solae Denmark in the EU could be potentially
under consideration. This is a completely different
threatened by dumping practices and could thus
situation from the one at hand where the operations
warrant protection irrespective of the legal nature of
conducted by the EU companies convert soy beans or
such activity (tolling or a different production arrange
soy flakes into soy proteins and not only change the
ment). In the light of the above, it was concluded to
chemical composition or the physical characteristics of
consider Solae Belgium and Solae Denmark as Union
the material but also add significant value to the final
producers that form part of the Union industry within
product.
the meaning of Article 4(1) and Article 5(4) the basic
Regulation.
(86) The exporter also argued that the centre of the decision
making process for the entire tolling production in the
(80) Following the interim disclosure, one exporter
Union is exclusively within a non-EU company and that
commented that tolling companies do not qualify as
the entire fate of the tolling companies is completely and
Union producers and have no standing in anti-dumping
exclusively dependant on their Swiss mother company.
investigations. The exporter argued that given that the
The exporter added that in a different case, concerning
ownership of the raw material and finished goods
imports of vinyl acetate originating in the USA ( 3 ), the
remained with Solae Europe registered in Switzerland
Commission excluded an EU producer from the defi
(i.e. outside of the EU), Solae Belgium and Solae
nition of the Union industry due to its relationship
Denmark could not be considered Union producers
with a company in a targeted country.
and did not warrant protection from the dumping prac
tices.
(87) Another party also suggested that in analysing the issue
of tolling arrangement and its qualification as
(81) The exporter pointed out that in previous cases, such as
production, issues like placement of headquarters,
one concerning imports of plastic sacks and bags orig
centre of interest and commitment to the EU market
inating in the PRC ( 1 ), the institutions decided to exclude
should be analysed in a manner similar to the analysis
two Chinese companies from a sample of exporting
of related companies while defining the Union industry.
producers because they had not themselves produced a
large amount of declared exported products, but had in
fact processed them for other exporting producers.
(88) Indeed, Solae as a group has structural links with its
Swiss mother company and further corporate links
with US companies. It is not a novelty in anti-dumping
(82) It is noted that the situation in the case relied upon by
the exporter is not comparable to the one in the present
proceedings that companies with strong EU presence
case. First, the Chinese companies in the plastic sacks and
have such structural, capital or corporate links outside
bags case mentioned above had their own (non-tolled)
the EU. However, such structural and corporate links
output (but the sales of own produced products were too
outside the EU cannot undermine the conclusion that
small for the companies to be included in the sample),
complainants qualify as EU producers.
while in the present situation Solae Belgium and Solae
Denmark work exclusively with the tolling arrangement.
(89) It
is
noted
that
such
arguments
would
be
relevant
for
the
purposes of Article 4(1)a of the basic Regulation and the
(83) In addition, while Solae Belgium and Solae Denmark are
definition of the Union industry only in case Solae
fully owned by Solae Europe, the investigation of the
Europe would be a company in a targeted country, i.e.
Chinese companies excluded from the sample did not
the PRC in this case. This is clearly not the case, and
establish any ownership relation with other exporting
consequently the exporter’s argument is irrelevant.
producers for which they processed the products.
(90) In
addition,
it
is
reiterated
that
the
ownership
of
the
(84) The
exporter
in
its
submission
also
referred
to
another
material used and/or of the finished product is not the
past investigation, namely that concerning imports of
decisive criterion in order to define a Union producer.
glycine originating in the PRC ( 2 ), where the Commission
While tolling is legally different from other production
treated some Chinese companies as traders rather than
arrangements, toll-producing companies may be
producers, as the activity they carried out was found not
considered Union producers.
to qualify as production.
(91) This
approach
is
consistent
with
earlier
practice
of
the
(85) It is noted in this regard that the glycine case does not
institutions, like for example in the expiry review
support the exporter’s argument either, as in that case the
concerning imports of furfuryl alcohol originating in
exporting Chinese companies simply conducted some
the PRC ( 4 ).
( 1 ) OJ L 270, 29.9.2006, p. 4.
( 3 ) OJ L 209, 17.8.2011, p. 24.
( 2 ) OJ L 118, 19.5.2000, p. 6.
( 4 ) OJ L 323, 10.12.2009, p. 48.

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EN
28.6.2012 Official
Journal
of
the
European
Union L
168/47
(92) It is reiterated that in the current case the value added by
fact that parties did not propose an alternative method of
the companies in the EU amounts to over 50 % of the
exclusion, their comments were considered as unsub
cost of manufacturing. This share of value added reflects
stantiated.
the technological and capital investments based in the
Union. The net value of such investments in the EU is
significant and the industry employs an important
(100) Throughout the period considered the demand on the
number of persons in the Union.
Union market decreased by 8 %. More specifically, the
Union consumption remained stable between 2007 and
2008, decreased by 8 % in 2009 and remained stable in
(93) In conclusion, Solae Belgium and Solae Denmark are
the IP.
considered Union producers that form part of the
Union industry within the meaning of Article 4(1) and
Article 5(4) the basic Regulation and will be thereafter
Table 1
referred to as the ‘Union industry’.
Union consumption 2007 2008 2009 IP
Volume (in
Business confidential data
(94) The
total Union production within the meaning of
tonnes)
Article 4(1) of the basic Regulation was established on
the basis of the questionnaire reply of the complainant.
Index (2007 =
100 100 92 92
100)
(95) Given
that the Union industry comprises only one
Source: Questionnaire replies from the Union industry and complainant’s
producer, the data below is presented in an indexed
estimates based on Eurostat data.
format in order to preserve confidentiality, pursuant to
Article 19 of the basic Regulation.
3. IMPORTS FROM THE COUNTRY CONCERNED
2.
(a) Volume
UNION CONSUMPTION

(96) The
Union
consumption
was
established
on
the
basis
of
(101) The volume of imports of the product concerned
the sales volumes of the Union industry’s tolled output
increased by 15 % over the period considered and
destined for the Union market, the import volumes on
reached 20 117 tonnes in the IP. More specifically,
the Union market obtained from Eurostat, and estimates
imports from the PRC remained stable between 2007
by the complainant.
and 2008, before increasing by 26 percentage points in

2009, when they reached their peak. It is noted that the
imports from the PRC dropped by some 9 percentage
points in the IP.
(97) The
CN
codes
covering
certain
concentrated
soy
protein
products cover a broader range of products, and not only
the product under investigation. Based on an extensive
Table 2
research and market knowledge, the complainant made
estimates of the value and volume of the imports of the
2007 2008 2009 IP
product under investigation to the Union. These
estimates were examined in the course of the investi
Volume of
17 495 17
557 22
017 20
117
gation and are considered to be reliable. The Commission
dumped imports
services received no comments with an alternative
from the country
proposal which could call into question the use of
concerned (tonnes)
these estimates for the purpose of this investigation.
Index (2007 =
100 100 126 115
100)
(98) One
party
claimed
that
the
methodology
of
calculating
imports has not been sufficiently explained. Those criti
Market share of
100 100 136 125
cisms, however, have not been further substantiated. The
dumped imports
party was critical of the Commission’s approach without
from the country
concerned —
however suggesting a more suitable or reliable alter
indexed
native. The criticism related mainly to the fact that the
party was not able to comment. It is recalled that the
Source: Complainant’s estimates based on Eurostat data.
non-confidential version of the complaint, setting out the
exclusion methodology, was available in the non-
confidential file as from the initiation of the proceeding.
(b) Market share of the imports concerned
(102) The index reflecting the evolution of market share held
(99) It is recalled that the Commission services cross checked
by the dumped imports from the PRC increased by 25 %
the data provided in the complaint and could not
throughout the period considered. It remained stable
establish anything that would undermine the reason
between 2007 and 2008, but increased by 36 % in
ableness of the method chosen. Further, in view of the
2009. In the IP it decreased by 11 percentage points.

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L 168/48
EN
Official Journal of the European Union
28.6.2012
(c) Prices
4. SITUATION OF THE UNION INDUSTRY
(i) Price evolution
(108) Pursuant to Article 3(5) of the basic Regulation, the
examination of the impact of the dumped imports on
(103) The average import price increased overall by 37 % in the
the Union industry included an evaluation of all
period considered. More specifically, it increased initially
economic factors and indices having a bearing on the
by as much as 48 % between 2007 and 2008, then
state of the Union industry during the period considered.
dropped in 2009 by 11 percentage points and
remained at that level in the IP. The average price of
imports from the PRC in the IP was EUR 1 569 per
tonne.
(109) For the purpose of the injury analysis, the injury indi
cators have been established on the basis of the
information collected from the duly verified full ques
Table 3
tionnaire reply by the complainant.
2007 2008 2009 IP
CIF price of imports from 1 149 1
704 1
570 1
569
(a) Production
the PRC (EUR/tonne)
(110) The Union production decreased by 14 % between 2007
Index (2007 = 100) 100 148 137 137
and the IP. More specifically, it decreased by 8 % in 2008
before even further decreasing by another 15 percentage
Source: Complainant’s estimates based on Eurostat data.
points in 2009. However, there was a clear improvement
between 2009 and the IP, when the production increased
by 9 percentage points.
(ii) Price undercutting
(104) For the purpose of analysing price undercutting, the
weighted average sales prices of the Union producer to
Table 4
unrelated customers on the Union market, adjusted, in
particular for credit costs, delivery costs, packaging and
2007 2008 2009 IP
commissions, to an ex-works level, were compared with
the corresponding weighted average CIF prices of the
Production (tonnes) Business
confidential
data
cooperating exporters from the PRC to the first inde
pendent customer on the Union market, adjusted to
Index (2007 = 100) 100 92 77 86
cover all costs related to customs clearance, i.e.
Source: Questionnaire replies.
customs tariff, and post-importation costs (landed price).
(b) Production capacity and capacity utilisation
(105) The comparison showed that during the IP, the imports

of the product concerned undercut the Union industry’s
(111) The production capacity of the Union producer remained
prices by around 12 %.
stable throughout the period considered.
Company Undercutting
Table 5
Crown Group 11,1
%
Gushen Group 9,6
%
2007 2008 2009 IP
Sinoglory Group 15,0
%
Production capacity
Business confidential data
(tonnes)
Index (2007 = 100) 100 100 100 100
(106) One party commented that of course the level of price
undercutting has only been calculated for the IP and that
Capacity utilisation Business
confidential
data
previous levels of undercutting are not known. However,
Index (2007 = 100) 100 92 77 86
the party suggested, given that between 2007 and the IP,
Chinese import prices have increased by significantly
Source: Questionnaire replies.
more than Union industry prices, it might be inferred
that price undercutting has been falling.
(112) The index reflecting evolution of the capacity utilisation
decreased by 14 % in the period considered. Between
(107) Indeed, it is recognised that while between 2007 and the
2007 and 2008 it decreased by 8 % and by another
IP, Chinese import prices have increased by 37 %, the
15 percentage points in 2009. It then increased by 9
Union industry prices have increased by only 15 % (see
percentage points in the IP. The trend for the utilisation
recital 119 below). Consequently, it is clear that with
rate reflects the development of the production over the
regard to average prices, the gap between Chinese and
period considered, given that the production capacity
EU prices has been narrowed between 2007 and the IP.
remained stable.

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EN
28.6.2012 Official
Journal
of
the
European
Union L
168/49
(113) It is noted that despite an overall decrease, capacity utili
Table 8
sation remained relatively high and in the IP was above
80 %.
2007 2008 2009 IP
Employment (persons) Business
confidential
data
(c) Sales volume
Index (2007 = 100) 100 101 91 93

Source: Questionnaire replies.
(114) The sales volume of the Union industry to unrelated
customers on the EU market decreased in the period
considered by 8 %. The sales decreased by 9 % between
(g) Productivity
2007 and 2008 and by a further 5 percentage points in
2009. However, there was a clear improvement between
(118) Productivity, measured as output (tonnes) per employee
2009 and the IP, when the sales increased by some 6
per year, decreased by 7 % in the period considered. This
percentage points.
drop reflects the fact that production decreased at a faster
pace than the employment. Still, it is noted that between
2009 and the IP the productivity increased by 8
percentage points reflecting the increase in the
Table 6
production at an even higher pace than the increase in
the employment.
2007 2008 2009 IP
EU sales (tonnes) Business
confidential
data
Table 9
Index (2007 = 100) 100 91 86 92
2007 2008 2009 IP
Source: Questionnaire replies.
Productivity (tonnes
Business confidential data
per employee)
Index (2007 = 100) 100 91 85 93
(d) Market share
Source: Questionnaire replies.
(115) Overall, during the period considered, the Union industry
maintained its market share. More specifically, the index
decreased by as much as 9 % between 2007 and 2008,
(h) Factors affecting sales prices
but already in 2009 it rebounded by 1 percentage point
and increased by another 7 percentage points in the IP.
(119) The average sales prices of the Union producers increased
by some 15 % in the period considered. The average
price increased in 2008 and 2009 (by 8 % and 10
percentage points respectively), before decreasing
Table 7
slightly in the IP by 3 percentage points. In general,
the prices of CCSPP are heavily dependent on the costs
of major raw materials (i.e. soy beans or soy bean flakes)
2007 2008 2009 IP
and energy. Together they account for a major
Market share of the
Business confidential data
proportion of the manufacturing cost. It is noted that
Union industry
the market for soy bean is volatile and characterised by
significant annual or even monthly fluctuations.
Index (2007 = 100) 100 91 92 99
Source: Questionnaire replies from the Union industry and complainant’s
estimates based on Eurostat data.
(120) Given the significant variations of the selling prices
between the different types of the product under inves
(e) Growth
tigation, the evolution of the average sales prices should
be looked at with caution as any change in the average
(116) Between 2007 and the IP, whilst the Union consumption
price is heavily influenced by any change in the product
decreased by 8 %, the volume of sales also decreased by
mix.
8 %, and the Union industry’s market share remained
stable.
Table 10
2007 2008 2009 IP
(f) Employment
Unit price EU
Business confidential data
(117) Employment decreased by 7 % between 2007 and the IP.
market (EUR/tonne)
It increased modestly between 2007 and 2008 before a
sharp 10 percentage point decline in 2009. However,
Index (2007 = 100) 100 108 118 115
employment increased again by 2 percentage points in
Source: Questionnaire reply.
the IP.

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L 168/50
EN
Official Journal of the European Union
28.6.2012
(i) Magnitude of the dumping margin
2007 2008 2009 IP
(121) Given the volume, market share and prices of the
ROI (profit in % of net
Business confidential data
imports from the PRC, the impact on the Union
book value of investments)
industry of the actual margins of dumping cannot be
considered negligible.
Index (2007 = 100) 100
– 160
– 9
– 109
Source: Questionnaire reply.
(j) Stocks
(122) The level of closing stocks remained overall stable
(125) The return on investments (ROI), expressed as the profit
between 2007 and the IP. It is noted that stocks
in percent of the net book value of investments, broadly
represent a rather small portion of the annual production
followed the profitability trend.
and therefore the relevance of this indicator in the injury
analysis is limited.
(m) Cash flow and ability to raise capital
Table 11
(126) The net cash flow from operating activities fluctuated
significantly in the period considered. Starting from a
2007 2008 2009 IP
positive figure in 2007, it deteriorated in 2008 when it
became negative, but improved again in 2009 only to
Closing stock
Business confidential data
become negative once more in the IP. Overall, cash flow
(tonnes)
broadly followed the profitability trend.
Index (2007 = 100) 100 90 110 99
Source: Questionnaire reply.
(127) There were no indications that the Union industry
encountered difficulties in raising capital, mainly due to
the fact that it is incorporated in a larger group.
(k) Wages
(123) The annual labour cost increased by 7 % between 2007
Table 14
and IP. It increased by 5 % between 2007 and 2008
before decreasing by 2 percentage points in 2009 and
2007 2008 2009 IP
later increasing by 4 percentage points in the IP.
Cash flow (EUR) Business
confidential
data
Table 12
Index (2007 = 100) 100
– 93 24
– 7
Source: Questionnaire reply.
2007 2008 2009 IP
Annual labour cost
Business confidential data
(EUR)
(n) Investments
Index (2007 = 100) 100 105 103 107
(128) The annual investments in the production of the like
product increased by 4 % between 2007 and 2008
Source: Questionnaire reply.
before increasing further by 29 percentage points in
2009. It decreased slightly by 5 percentage point in the
IP. Overall, investments increased by 28 % in the period
(l) Profitability and return on investments
considered.
(124) During the period considered, the profitability of the
sales of the like product on the EU market to
unrelated customers, expressed as a percentage of net
Table 15
sales, was fluctuating considerably. While in 2007 and
2009 the Union industry achieved profits, it suffered
2007 2008 2009 IP
losses in 2008 and in the IP. The oscillating profitability
may be a reflection of the fluctuations on the soy bean
Net investments (EUR) Business
confidential
data
market.
Index (2007 = 100) 100 104 133 128
Source: Questionnaire reply.
Table 13
2007 2008 2009 IP
5. CONCLUSION ON INJURY
Profitability of EU (% of net
Business confidential data
(129) The analysis of the data shows that overall the Union
sales)
industry decreased its production, capacity utilisation,
Index (2007 = 100) 100
– 89 10
– 45
sales, employment and productivity during the period

considered. Also, wage cost increased.

---

EN
28.6.2012 Official
Journal
of
the
European
Union L
168/51
(130) At the same time this negative picture is mitigated by the
(137) It is noted in this regard that each case has to be judged
fact that most of these indicators have experienced
on its own merits. In this particular case, the investi
positive development between 2009 and the IP (2010).
gation not only established clear signs of recovery of
In particular between 2009 and 2010 (IP) production
the Union industry towards the end of the period
and capacity utilisation increased by 9 percentage
considered, but also the magnitude of the negative
points; EU sales and market share increased by 6 and
trends was relatively limited. For example the market
7 percentage points respectively; employment increased
share of the Union industry remained stable and
by 2 percentage points, while productivity increased by
relatively high overall, capacity utilisation fell slightly
as much as 8 percentage points.
but remained at a level above 80 %, and investments
increased. By contrast, in Oxalic acid ( 3 ) there was, for
instance, a loss of Union industry market share of 9 %
in the IP compared with the first year of the injury
(131) Also, the market share of the Union industry overall
investigation period ( 4 ). In Citric acid ( 5 ) there was a
remained stable in the period considered. While it
similar loss of market share and there was a decrease
dropped in 2008 it increased already in 2009. In 2010
of investments ( 6 ).
it reached a level very close to that of 2007.
(138) With regard to WTO obligations, the panel report quoted
(132) Profitability, as well as return on investment and cash
refers to a completely different situation in which the
flow (both closely related to the profitability), all show
investigating authority analysed only partial data from
a mixed picture of the economic situation of the Union
only 6 months of each of three consecutive years and
industry. While overall (between 2007 and the IP) they
based its findings on this incomplete analysis. The
decrease, they also oscillate significantly and show the
situation in the case at hand is obviously different as
volatile character of the market.
the injury analysis covers full year data from four
consecutive years and additionally there is some
emphasis on the fact that by the end of that four-year
period there was a positive development in many of the
trends analysed compared to the year before the IP.
(133) Net investment was clearly increasing between 2007 and
2009 (by 33 %) and experienced only a small decrease
(by 5 percentage points) in 2010 (IP).
(139) Given the above, it is definitively concluded that any
injury suffered by the Union industry is not characterised
as material within the meaning of Article 3(5) of the
(134) Also, the actual level of losses suffered by the Union
basic Regulation.
industry in the IP is relatively moderate.
E. CAUSATION
(135) In the light of the foregoing, it is concluded that the
Union industry has suffered some injury. However,
1. INTRODUCTION
given the relatively insignificant level of actual losses
suffered by the Union industry in the IP, and signs of
(140) Without prejudice to the determination with regard to
recovery towards the end of the period considered, that
the lack of material injury and under the hypothesis that
injury cannot be characterised as material within the
the injury suffered by the Union industry could have
meaning of Article 3(5) of the basic Regulation.
been characterised as material, the Commission
examined the potential causal link.
(136) Following the disclosure of the final findings, the
complainant argued that the injury in this case should
(141) In accordance with Article 3(6) and (7) of the basic
be considered as material because in some other cases
Regulation, the Commission examined whether any
with allegedly similar circumstances (i.e. positive trends
injury suffered by the Union industry has been caused
observed towards the end of the period considered) ( 1 )
by the dumped imports from the country concerned.
the findings were different. The complainant also argued
Furthermore, known factors other than the dumped
that looking at the later part of the period considered
imports, which might have injured the Union industry,
and drawing conclusions from signs of recovery in that
were examined to ensure that any injury caused by those
period is incompatible with WTO law ( 2 ).
other factors was not attributed to the dumped imports.
( 1 ) The complainant quotes in particular Oxalic acid from India and China
( 3 ) OJ L 106, 18.4.2012, p. 1.
(OJ L 275, 20.10.2011, p. 1) and Citric acid from China (OJ L 143,
( 4 ) See Commission Regulation (EU) No 1043/2011 imposing
3.6.2008, p. 13).
provisional duties (OJ L 275, 20.10.2011, p. 1), recital 77.
( 2 ) The complainant refers to the Final Report of the Panel in dispute
( 5 ) OJ L 323, 3.12.2008, p. 1.
WT/DS331/R Mexico — Anti-dumping duties on steel pipes and
( 6 ) See Commission Regulation (EC) No 488/2008 imposing provisional
tubes from Guatemala.
duties (OJ L 143, 3.6.2008, p. 13), at respectively recitals 68 and 72.

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L 168/52
EN
Official Journal of the European Union
28.6.2012
2. EFFECTS OF THE DUMPED IMPORTS
demand, whatever its underlying cause, was a major
factor in the developments of the state of the Union
(142) The imports of the product concerned increased overall
industry.
by 15
% between 2007 and the IP and their
corresponding market share increased by 25 % despite
the contracting demand on the Union market. Those
developments generally coincided with the weakened
(148) Although the reason for the contraction in demand is
economic situation of the Union industry. While the
not directly relevant for causation analysis, it may well be
Union industry managed to keep its market share, the
that it was caused, at least in part, by the financial and
Chinese imports gained over 5 percentage points.
economic crisis. In this context, it is noted that demand
dropped in particular between 2008 and 2009. Because
of its coincidence in time, the 8 percentage points’
decrease between 2008 and 2009 was in all likelihood
(143) On that basis it would appear, at first sight, that there is
linked to the economic crisis. Consequently, it could be
a causal link between imports from the PRC and any
argued that the injury suffered by the Union industry was
injury suffered by the Union industry.
caused by the economic crisis and the resulting decline in
demand.
(144) However, a more detailed analysis of the effects of
dumped imports on the situation of the Union industry
(149) It is also noted that Solae Belgium recognises in its
does not appear to show a clear correlation. For example,
annual report from 2009 that lower income from
while the imports from the PRC hardly increased
financial assets caused by the financial crisis have had a
between 2007 and 2008 (recital 101) and their CIF
negative impact on the company’s financial situation.
import price went up by 48 percentage points (recital
103), the Union industry in 2008 nevertheless suffered
significant losses and lost some market share. By
contrast, while the Chinese imports increased by 26 %
(150) It is also reiterated that the Union industry improved its
between 2008 and 2009, and their CIF import price
economic situation between 2009 and the IP. This
went down by 11 percentage points, the Union
improvement clearly coincides with the general
industry kept its market share and recovered from the
economic recovery.
2008 losses. Also between 2009 and the IP while
imports from the PRC maintained their presence on
the Union market, the situation of the Union industry
(151) Given the above, it is considered that the contraction in
clearly improved as discussed above in the injury
demand, probably partly caused by the economic crisis,
analysis.
was a major cause of any injury suffered by the Union
industry.
(145) This lack of correlation between imports from the PRC
and the trends of the injury indicators suggests strongly
(152) Following the final disclosure, the complainant claimed
that other factors contributed and possibly caused any
that the financial and economic crises did not cause the
injury suffered by the Union industry. This question will
injury, but did not provide any convincing argument in
be further explored below.
this regard and simply referred to a number of other
cases ( 1 ) where the findings were different.
3. EFFECTS OF OTHER FACTORS
(153) In this regard, it is reiterated that each case has to be
(146) The other factors which were examined in the context of
judged on its own merits. In this particular case the fact
causation are: (i) the contraction in Union demand,
remains that while there is a lack of clear correlation
probably partly related to the financial and economic
between dumped imports and the situation of the
crisis in the years 2008/2009; and (ii) the volatility of
Union industry, the contraction in demand, probably
the soy bean market.
partly caused by the economic crisis, did contribute to
the poor situation of the Union industry. In fact, at least
to some extent, as explained above, this was explicitly
(i) Contraction in Union demand, probably partly
recognised in the annual report of Solae Belgium
related to the financial and economic crisis of
of 2009.
2008/2009
(147) A drop in Union consumption could be observed in the
(154) Nevertheless, important differences can be noted between
period considered, namely by 8 % if one compares 2007
the cases referred to by the complainant and the present
with 2010 (the IP). Many of the injury factors developed
case. A number of those differences are listed in the
largely in line with that factor. For instance, the sales
following recitals.
volume of the EU industry also dropped by 8 % if one
compares the aforementioned two periods. Other
examples are employment — 7 % less in 2010 than in
( 1 ) Open mesh fabrics of glass fibres from the PRC (OJ L 43, 17.2.2011,
p. 9); Oxalic acid from India and the PRC (OJ L 275, 20.10.2011,
2007 — and productivity — also 7 % less in 2010 than
p. 1); Glass fibre from the PRC (OJ L 67, 15.3.2011, p. 1) and Ceramic
in 2007. It is therefore clear that the contraction in
tiles from the PRC (OJ L 70, 17.3.2011, p. 5).

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EN
28.6.2012 Official
Journal
of
the
European
Union L
168/53
(155) In the Oxalic acid case ( 1 ), although some indicators
(ii) Volatility of the soy bean market
indeed marked a positive development between 2009
and the IP, the market share of the Union industry
(161) It has been shown above that the Union industry’s profit
decreased, whereas in the present case it increased
ability oscillates significantly and indicates a volatile
almost to the level of 2007 ( 2 ). Furthermore, the Oxalic
character of the market.
acid case does not show a year-on-year absence of
correlation between dumped imports from the
countries concerned and the trends of the injury indi
cators, which is characteristic of the present case. The
(162) That volatility is closely linked with the fluctuations on
profitability trends are also different. Notably, in the
the raw materials market. The spot market for the main
present case the profitability fluctuates considerably.
raw material — soy beans — is traditionally characterised
Finally, in the present case the market is highly volatile.
by significant monthly and annual fluctuations ( 15 ), while
prices for the final product — CCSPP — tend to be
rather stable (as they are based on longer term contracts).
Consequently, the level of profitability for the product
(156) In the Open mesh fabrics of glass fibres case ( 3 ), the
under investigation is heavily dependent on the
market share of the Union industry decreased every
prevailing situation on the soy bean market.
year, and overall by 12 percentage points ( 4 ). At the
same time the market share of Chinese imports
consistently grew year on year, and overall by 12,4
percentage points ( 5 ). In the present case, the market
(163) In this context it is noted that indeed there was a
share of Chinese imports increased up to 2009 in
significant soy bean price hike in 2008 that had an
order to then decrease between 2009 and the IP. At
important impact on the profitability and the overall
the same time, the Union industry’s market share
situation of the Union industry. The complainant itself
decreased already in 2008 in order to then bounce
recognised that the soy bean price hike did contribute to
back almost to the 2007 level.
its poor situation in 2008.
(157) In the Glass fibres case
( 6 ) the market share of dumped
imports consistently grew year on year, and overall by
(164) Given the above, it is clear that the volatility of soy bean
6,3 percentage points (
market also was a major cause of any injury suffered by

7 ).
the Union industry.
(158) In the Ceramic tiles case
( 8 ), the market share of the
dumped imports was increasing steadily ( 9 ). Furthermore,
(165) Following the final disclosure, the complainant claimed
the evolution of stocks was very different. In the Ceramic
that the volatility of soy bean prices could not break the
tiles case the increase in stocks was a telling injury
causal link either and was only relevant for the 2008
factor ( 10 ). Finally, the investigation in the Ceramic tiles
losses. However, no substantiated evidence was
case showed that despite recovery in the construction
presented in this respect.
sector, the indicators of the Union industry continued
to show a downward trend ( 11 ).
(166) It is noted that soy bean price hikes coincide with the
poor financial performance of the Union industry and,
(159) Finally, in the Fatty alcohol case ( 12 ), the development of
given that high soy bean prices were considered to be the
the injury indicators between 2009 and the IP differed
main cause of 2008 losses, there is no particular reason
from the present case (e.g. employment decreased) ( 13 ),
why the 2010 losses coinciding with another hike of the
and the volume and market share of dumped imports
soy bean prices should be treated differently.
increased between 2009 and the IP ( 14 ).
(160) Consequently, the claim of the complainant must be
(167) Consequently, the claim of the complainant must be
rejected.
rejected.
( 1 ) OJ L 275, 20.10.2011, p. 1.
( 2 ) Ibid, recital 75.
4. CONCLUSION ON CAUSATION
( 3 ) OJ L 43, 17.2.2011, p. 9.
( 4 ) Ibid, recital 75.
(168) Other factors, and in particular the contraction in
( 5 ) Ibid, recital 66.
( 6 ) OJ L 67, 15.3.2011, p. 1.
demand (probably partly caused by the economic crisis
( 7 ) Ibid, recital 64.
of 2008/2009) and the volatile character of the main raw
( 8 ) OJ L 70, 17.3.2011, p. 5.
material market were important causes of any injury to
( 9 ) Ibid, recital 73.
the Union industry.
( 10 ) Ibid, recitals 93-95 and 125.
( 11 ) Ibid, recital 124.
( 12 ) OJ L 122, 11.5.2011, p. 47.
( 15 ) Publicly available data (see, for example, http://www.indexmundi.
( 13 ) Ibid, recital 85.
com) show that monthly price variations for soy beans can be as
( 14 ) Ibid, recital 70.
high as +/– 15 %.

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L 168/54
EN
Official Journal of the European Union
28.6.2012
(169) Therefore, even under the hypothesis that the Union
given an opportunity to comment. Their comments were
industry suffered material injury, since those other
considered but they have not altered the conclusions
factors break the causal link, it cannot be concluded
reached above,
that any injury was caused by the dumped imports
from the PRC.
HAS ADOPTED THIS DECISION:
F. UNION INTEREST
Article 1
(170) Since it was found above that the Union industry is not
suffering injury that can be qualified as material, and that
The anti-dumping proceeding concerning imports of certain
in any case other factors break the causal link between
concentrated soy protein products originating in the People’s
the dumped imports and that injury, it is not necessary
Republic of China is hereby terminated.
to examine the Union interest.
Article 2
G. TERMINATION OF THE PROCEEDING
This Decision shall enter into force on the day following its
(171) In view of the conclusions reached with regard to lack of
publication in the Official Journal of the European Union.
material injury suffered by the Union industry and with
regard to the absence of causal link, in accordance with
Article 9 of the basic Regulation, the proceeding should
Done at Brussels, 27 June 2012.
be terminated without the imposition of measures.
For the Commission
(172) All parties concerned were informed of the final findings
The President
and the intention to terminate the proceeding and were
José Manuel BARROSO

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