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11.5.2012 Official
Journal
of
the
European
Union L
124/1
II
(Non-legislative acts)
REGULATIONS
COUNCIL IMPLEMENTING REGULATION (EU) No 398/2012
of 7 May 2012
amending Implementing Regulation (EU) No 492/2010 imposing a definitive anti-dumping duty on
imports of sodium cyclamate originating in, inter alia, the People’s Republic of China
THE COUNCIL OF THE EUROPEAN UNION,
named Chinese producers with a residual duty rate of
0,26 EUR/kilo imposed on imports from other
producers (‘current duties’).
Having regard to the Treaty on the Functioning of the European
Union,
1.2. Request for a review
(2) A
request
for
a
partial
interim
review
(‘the
current
Having regard to Council Regulation (EC) No 1225/2009 of
review’) pursuant to Article 11(3) of the basic Regulation
30 November 2009 on protection against dumped imports
was lodged by Productos Aditivos S.A., the sole Union
from countries not members of the European Community (
producer of sodium cyclamate and the complainant in

1 )
(‘the basic Regulation’), and in particular Articles 9(4), 11(3),
the original investigation (‘the complainant’). The request
11(5) and 11(6) thereof,
was limited in scope to dumping and to Golden Time
Enterprise (Shenzhen) Co., Ltd (‘GT Enterprise’ or ‘the
company concerned’), member of the Rainbow Rich
group (‘the group of companies concerned’, ‘Rainbow
group’, or ‘Rainbow’), which was also one of the indi
Having regard to the proposal from the European Commission
vidually named Chinese producers in the original inves
(‘the Commission’) after consulting the Advisory Committee,
tigation. The anti-dumping duty applicable to imports of
products produced by GT Enterprise is 0,11 EUR/kilo
and the duty applicable to imports from the other
production companies within the group of companies
Whereas:
concerned is 0,26 EUR/kilo (i.e. the residual duty rate).
1. PROCEDURE
(3) The
complainant
provided
prima
facie
evidence
that
the
existing measures are no longer sufficient to counteract
1.1. Measures in force
the dumping which is causing injury.
(1) By
Regulation
(EC)
No
435/2004
( 2 ), the Council
imposed, following an anti-dumping investigation, a
definitive anti-dumping duty on imports of sodium
cyclamate originating in the People’s Republic of China
1.3. Initiation of a partial interim review
(‘the PRC’ or ‘the country concerned’) and Indonesia (‘the
original investigation’). Following an expiry review,
(4) Having
determined,
after
consulting
the
Advisory
the Council, by Implementing Regulation (EU)
Committee, that the request contained sufficient prima
No 492/2010 (
facie evidence to justify the initiation of the partial

3 ) imposed a definitive anti-dumping
duty for a further period of five years. The measures
interim review, the Commission announced, by a
were set at the level of dumping and consist of specific
notice of initiation published in the Official Journal of
anti-dumping duties. The rate of the duty for the PRC
the European Union ( 4 ) on 17 February 2011, the initiation
ranges between 0 and 0,11 EUR/kilo for individually
of a partial interim review pursuant to Article 11(3) of
the basic Regulation limited to the examination of
dumping as far as GT Enterprise is concerned.
( 1 ) OJ L 343, 22.12.2009, p. 51.
( 2 ) OJ L 72, 11.3.2004, p. 1.
( 3 ) OJ L 140, 8.6.2010, p. 2.
( 4 ) OJ C 50, 17.2.2011, p. 6.

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1.4. Product concerned and like product
— Golden Time Chemical (Jiangsu) Co. Ltd, Jiangsu,
PRC,
(5) The
product
under
review
is
sodium
cyclamate,
orig
inating in the People’s Republic of China, currently
falling within CN code ex 2929 90 00 (‘the product
— Nanjing Jinzhang Industrial Co. Ltd, Nanjing, PRC,
concerned’).
— Rainbow Rich Ltd, Hong Kong.
(6) As
in
previous
investigations,
this
investigation
has
shown that the product concerned produced in the
PRC and sold to the Union is identical in terms of
1.6. Review investigation period
physical and chemical characteristics and uses to the
product produced and sold on the domestic market in
(11) The
investigation
of
dumping
covered
the
period
from
Indonesia which served as an analogue country in the
1 January 2010 to 31 December 2010 (‘the review inves
current review. It is therefore concluded that products
tigation period’ or ‘RIP’).
sold on the domestic market in Indonesia and sold by
the group of companies concerned on the Union market
are like products within the meaning of Article 1(4) of
2. RESULTS OF THE INVESTIGATION
the basic Regulation.
2.1. Market economy treatment (MET)
1.5. Parties concerned
(12) In
anti-dumping
investigations
concerning
imports
orig
inating in the PRC, normal value shall be determined in
(7) The
Commission
officially
informed
the
complainant,
the
accordance with paragraphs 1 to 6 of Article 2 of the
company concerned and the representatives of the
basic Regulation for those producers which were found
country concerned about the initiation of the current
to meet the criteria laid down in Article 2(7)(c) thereof.
review. The Commission also advised producers in
Briefly, and for ease of reference only, the criteria in
Indonesia of the initiation of the proceedings, as
Article 2(7)(c) of the basic Regulation, fulfilment of
Indonesia was envisaged as a possible analogue country.
which the applicant companies have to demonstrate,
are set out in summarised form below:
(8) Interested
parties
were
given
the
opportunity
to
make
their views known in writing and to request a hearing
— business decisions and costs are made in response to
within the time limit set in the notice of initiation. All
market conditions, and without significant State inter
interested parties, who so requested and showed that
ference and costs of major inputs substantially reflect
there were particular reasons why they should be
market values,
heard, were granted a hearing.
— accounting records are independently audited in line
(9) In
order
to
obtain
the
information
deemed
necessary
for
with international accounting standards and applied
its investigation, the Commission sent a questionnaire to
for all purposes,
the company concerned and received replies from five
companies in the Rainbow group within the deadline
set for that purpose. (As the Rainbow group now
— there are no significant distortions carried over from
consists of two production companies (one being GT
the former non-market economy system,
Enterprise), one raw material supplier, one company
previously involved with the product concerned, but
now dormant, and a trader in Hong Kong, the review
— legal certainty and stability are provided by bank
encompassed the activities of the full group). The
ruptcy and property laws,
Commission also sent questionnaires to producers in
Indonesia. One Indonesian producer showed willingness
to provide information in the current review and
— currency exchanges are carried out at the market rate.
provided a partial reply to the questionnaire.
(13) The group of companies concerned requested MET
(10) The
Commission
sought
and
verified
all
information
pursuant to Article 2(7)(b) of the basic Regulation and
deemed necessary for the analysis of market economy
submitted claim forms for four producers located in the
treatment and individual treatment and the determination
People’s Republic of China. The Commission sought and
of dumping. The Commission carried out verification
verified at the premises of the companies all information
visits at the premises of the following members of the
submitted in the companies’ requests and deemed
group of the companies concerned:
necessary.
— Golden Time Enterprises (Shenzhen) Co. Ltd,
(14) The
current
review
revealed
that
the
situation
of
the
Shenzhen, PRC, (GT Enterprise),
company concerned changed since the original investi
gation. It was found that GT Enterprise no longer meets
all MET criteria. Furthermore, compared to the original
— Jintian Industrial (Nanjing) Co. Ltd, Nanjing, PRC,
investigation the Rainbow group had been enlarged and

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restructured. The other companies within the group that
(19) The
group
of
companies
concerned
and
the
complainant
submitted claim forms could not demonstrate either that
were given an opportunity to comment on the above
they meet all MET criteria.
findings. The complainant had no comments but the
group of companies concerned objected on several
grounds. Some of these comments were reiterated after
final disclosure of the facts and considerations on the
(15) With
regard
to
criterion
1
concerning
business
decisions
basis of which it was proposed to impose definitive
and State interference, it was found that the local
measures. The most important comments received are
government has the authority to interfere in the hiring
described in the recitals below.
and dismissal of personnel in one company within the
group. Furthermore, the local government is a major
shareholder of the company producing raw materials.
Indications of significant State interference were
identified in the supply of raw materials to the
company (electricity and water) and by the company to
(20) The
Rainbow
group
firstly
stated
that
the
Commission
illegally imposed an obligation to re-qualify for MET as
its related companies, in labour costs and in the oper
the group was given MET in the original investigation
ations and decision-making of this company. As a way of
and the expiry review and thus the legal obligation to
example the State shareholder outsourced personnel to
apply the same methodology in reviews as in the original
the raw material producer at terms that the company
investigation was breached. It argued that the
could not specify. Furthermore, the company has been
Commission has not shown that circumstances of this
continuously loss-making due to selling raw material at
company had changed in a way that would justify a
abnormally low prices to its related companies and
different method to that applied in the original investi
without any further compensation e.g. in the form of
gation. According to the claimant several of the issues
profit distribution. Through the accumulation of these
identified by the Commission had already existed at the
losses, the State-owned raw material producer influenced
time of the original investigation and thus the Commis
the decisions of the related companies with regard to
sion’s new findings do not relate to new circumstances
purchase of raw materials for the production of
but are merely a different interpretation of the same
sodium cyclamate. Finally, interference and influence
circumstances.
could be detected in the financing and investment

decisions of another company within the group by a
local government agency.
(21) It
should be noted that, contrary to the claimant’s
(16) With
regard
to
criterion
2
concerning
accounting,
the
statement, the same methodology was applied both in
investigation showed that accounting records of all
the original investigation and in the current review
members of the group of companies concerned were
whereas due account was taken of the fact that certain
not in line with international accounting standards as a
circumstances have changed since the original investi
number of material accounting shortcomings and errors
gation. Even if the claimant’s argumentation would be
were found which were not reported by the auditors.
correct in relation to certain facts that were indeed the
same during both the original and current investigations,
namely in relation to GT Enterprise’s land use right
agreement, the following can be noted. The current
review established additional other facts that — even
(17) With
regard
to
criterion
3,
it
was
found
that
distortions
were carried over from the non-market economy system
though they had already existed during the original inves
through the provision of infrastructure investments to
tigation — were not disclosed at that time by GT Enter
one company of the group for free. The same
prise, such as the local government’s authority to
company benefited from favourable rental conditions
approve the hiring and dismissal of its personnel.
for the land it uses. The other companies within the
Finally, the circumstances of the company have also
group could not demonstrate that they acquired their
changed since the original investigation in respect of
land use rights in return for a consideration and/or
criterion 2. That is because it was established in the
that the consideration would have reflected a market
current review that during the RIP GT Enterprise had
value. Finally one company was not able to demonstrate
not had a clear set of accounting records that were inde
that certain assets transferred to it were made for
pendently audited in line with international accounting
monetary consideration or otherwise at prices reflecting
standards and applied for all purposes.
market values.
(18) Finally,
with
regard
to
criteria
4
and
5,
it
was
found
that
(22) The claimant later explained that it considers that it had
the companies met the criteria as the companies were
disclosed the local government’s authority to approve the
subject to bankruptcy and property laws which guar
hiring and dismissal of its personnel by providing in the
anteed stability and legal certainty. Currency conversions
original investigation the same Articles of Association as
were carried out at or following the official rate
in the current review. However, the translation of this
published by the Bank of China.
document provided by the claimant both during the

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original and current investigation was incomplete as it
the exclusion, in principle, of state-controlled companies
did not disclose the powers given by the Articles of
from entitlement to MES, irrespective of the real factual,
Association to the local government.
legal and economic context in which they operate.’
Rainbow also claims that it would mean an unreasonable
burden of proof on MET applicants if they were to show
that there can never be a possibility for the State to
interfere in business decisions. Further it argues that the
State action would have to render the company’s
decisions incompatible with market considerations so as
(23) The
Rainbow
group
further
argued
that
the
MET
regime
was introduced for countries with an economy in tran
not to be in line with criterion 1.
sition, i.e. from the former non-market economy system
towards a market economy. It would therefore be
illogical to require a company that previously qualified
for MET to once again submit sufficient evidence in an
interim review that it still qualifies for MET. In this
respect it should be noted that there is nothing in the
basic Regulation which would support such an interpre
(26) Contrary
to
the
above
assertions
by
the
Rainbow
group,
tation and which would prevent the application of
the current investigation established specific and
Article 2(7)(c) of the basic Regulation in reviews
significant State interference in the operations of several
initiated pursuant to Article 11(3) of the basic Regu
companies within the group. In the case of the group
lation. Therefore, this argument had to be dismissed.
company in which the hiring and dismissal of personnel
was subject to the approval of the local government, it is
the company’s own rules of internal functioning, i.e. its
Articles of Association, that clearly provide the authority
for the State to interfere in its operational decisions. In
the case of another group company, the State partner
(24) The Rainbow group also invoked the procedural
was found to have had an influence in the company in
requirement in Article 2(7)(c) that an MET determination
a manner which is incompatible with market consider
shall be made within three months of the initiation of
ations. Firstly, the State partner had contributed most of
the investigation. Rainbow itself acknowledges that
the capital to this company without this fact being
exceeding this deadline is in itself insufficient ground to
reflected in the share of its ownership of the company.
contest the results of the investigation, but it highlights
Secondly, the company’s operations were always loss-
that the Commission services already had all the
making, which was mostly detrimental to the State
information necessary to calculate the dumping margin
partner given the capital it invested. Thirdly, the State
at their disposal when MET findings were disclosed. In its
partner itself incurred continuous losses as it supplied
argumentation Rainbow however ignores the fact that
inputs such as water and electricity to the group
even though the Commission indeed for administrative
company at below market prices and without proper
efficiency requested and verified all necessary information
receipt of payment.
from the group of companies concerned at the same
time, it had not had at its disposal information about
the analogue country that would have made it possible to
determine the dumping margin in case of rejecting MET.
Indeed, information concerning the normal value in the
analogue country was made available to the Commission
only after the findings concerning MET had been
disclosed to Rainbow. Thus the timing of the MET deter
(27) Concerning
the
conclusion
on
State
interference
in
the
mination could not have any impact on its content. In
financing and investment decisions of another member
the light of the above, this claim is rejected as
of the group of companies concerned, it was submitted
unfounded.
that factual findings of the Commission on a loan and its

conditions were incorrect. The Commission however, has
evidence collected during the verification showing that
the company was instructed by a local government
agency to take a loan which was not related to its
business operations. The company reasons that the
financing decisions were taken as a favour to this
(25) With
respect
to
criterion
1,
it
has
been
submitted
as
a
government agency and not as an obligation and the
general comment that the theoretical possibility of State
transaction in question was without further risk to the
influence or State control per se does not automatically
company since it would have had the possibility to seek
mean that there is an actual and significant State inter
compensation through the non-payment of utilities’
ference within the meaning of Article 2(7)(c). Rainbow
invoices issued to it by the agency. The evidence
repeatedly quotes a decision of the Court of First
collected by the Commission shows that the land use
Instance ( 1 ) to argue that State control does not equal
right of the company is indirectly used as a security in
significant State interference because this would ‘lead to
the relevant financial transaction; therefore the company
bears significant risk. The land use right itself was
( 1 ) Zhejiang Xinan Chemical Industrial Group Co. Ltd v Council, Case
acquired through the same government agency to
T-498/04, 2009 ECR II-1969, at paragraph 92.
whom the company alleges to have been providing

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only a favour. The allegation that a compensation would
to which omissions or misstatements of items are
have been possible through non-payment for utilities
material only if they could influence the economic
demonstrates a basic misunderstanding of basic
decisions that users make on the basis of financial
accounting standards (offsetting) and contradicts the
statements and that such immaterial shortcomings
company’s further claim that influence on financial oper
would not need to be reported by the auditor either.
ations as such do not mean an influence on ‘decisions on
firms regarding prices, costs and inputs’ as required by
Article 2(7)(c). Furthermore, investment decisions are
clearly and significantly influenced by the government
agency as there are company-specific requirements set
in the land use right agreement of the company on the
investment to be performed and these requirements go
beyond local zoning laws contrary to what has been
suggested by the company. Therefore the claim that
State interference in the financing and investment
(31) Contrary
to
what
the
group
claims,
there
were
serious
decisions do not amount to an influence according to
shortcomings in the accounting of the companies in
Article 2(7)(c) is rejected.
relation to basic accounting principles (see, for more

details, the next paragraph). Secondly, the objective of
requiring a clear set of accounts for MET purposes is
not for a user making economic decisions but to
ensure that the financial statements provide a true and
fair view of revenues, costs, etc. The objective of the MET
(28) As to the group company producing one of the raw
investigation is to establish whether accounts are kept
materials used in the production of sodium cyclamate,
and audited in accordance with international accounting
it was claimed that any shortcomings with respect to the
standards.
company’s decision-making and financial situation would
have a very limited impact as the raw material produced
by this company represents only around 10 % of the cost
of production of sodium cyclamate. As the Commission
was able to calculate the difference between profitable
sales price and actual sales price of the raw material,
the company suggests that it would be more appropriate
to adjust the costs of low-priced raw material rather than
rejecting MET. However, the objective of the MET
assessment is to ascertain that inputs reflect market
(32) The
Rainbow
group
disputed
that
its
companies
breached
values and business decisions are made in response to
the elements of the IAS rules and accounting practices
market signals. It should be noted that Article 2(7)(c) of
mentioned in the MET assessment such as the accrual
the basic Regulation explicitly requires that costs of
principle, faithful representation of transactions
major inputs substantially reflect market value in order
principle and offsetting, going concern principle, correct
the conditions for the MET to be met without making
classification of balance sheets items, recognition of
any reference to the possibility of adjusting the distorted
losses, only business related transactions and recordings
costs of major inputs. Therefore this claim has to be
within the accounts, correct classification and
rejected.
depreciation of expenses, respect of IAS and/or Chinese

GAAP rules on the recognition of the value and
depreciation of assets. The abovementioned breaches of
IAS were identified from the information provided by the
group in its MET claim form and all issues were subject
to verification at the premises of the companies. The
(29) The
company’s
claim
concerning
the
abnormally
low
arguments presented by the companies on these issues
prices paid for water and electricity and labour costs
following the disclosure of the MET findings were not
— arguing that these are not major inputs only repre
such as to warrant a change in the conclusion that, in
senting in total around 14 % of the total cost of
regard to these issues, the companies failed criterion 2.
production of the raw material — had to be rejected
as this is considered, both individually and cumulatively,
a significant enough cost element to have an impact on
the total costs of the company. In the case of labour
costs it is also noted that it was not possible to fully
verify these elements as the company was not able to
provide contracts or other documentation. Therefore it
could not be ascertained that these costs reflected market
values.
(33) With
respect
to
criterion
3,
the
Rainbow
group
claims
that the provision of infrastructure investments to one
company for free is a normal activity that also takes
place in market economies in order to attract
investments and that the impact of this subsidisation
(30) With
respect to criterion 2 it was argued that the
would be negligible on the financial situation of the
Commission ignored the materiality principle pursuant
company in the RIP. However, the fact that a company

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could avoid payments for infrastructure developments
cannot be granted MET. In these circumstances, after
and at the same time benefited from very low rental
consulting the Advisory Committee, the group of
prices for the same land do not reflect a normal
companies concerned was denied MET.
situation in a market economy. This benefit on the
other hand had a direct impact on the financial
position of the production company and its ability to
take decisions in response to market signals.
2.2. Individual treatment (IT)
(37) Pursuant
to
Article
2(7)(a)
of
the
basic
Regulation,
a
countrywide duty, if any, is established for countries
falling under that Article, except in those cases where
(34) The Commission accepted the claimant’s arguments
companies are able to demonstrate that they meet all
concerning GT Enterprise’s land use right as explained
criteria set out in Article 9(5) of the basic Regulation
in recital 21. Arguments presented concerning the land
to be granted IT. Briefly, and for ease of reference
use right by the other companies however were not such
only, these criteria are set out below:
as to reverse findings as the company itself acknowledges
that it had not paid the agreed amount for its land use
right in one case. In the case of another land use right
the Rainbow group claims that prices of land in that
region had been rising sharply and thus it is normal
— in the case of wholly or partly foreign owned firms
that the land was valued significantly higher a few
or joint ventures, exporters are free to repatriate
years after its acquisition date. However, the evidence
capital and profits,
provided by the company referred to price increases for
residential properties in the region and thus it is irrel
evant. Rainbow ultimately claimed that the Commission’s
approach of requiring positive evidence that a company
has paid a price that reflects market value imposes an
— export prices and quantities, and conditions and
unreasonable burden of proof. However, Article 2(7)(c)
terms of sale are freely determined,
of the basic Regulation explicitly requires that a claim for
market economy treatment must ‘contain sufficient
evidence that the producers operates under market
economy conditions’. Therefore this argument had to
be rejected.
— the majority of the shares belong to private persons.
State officials appearing on the Boards of Directors or
holding key management positions shall either be in
minority or it must be demonstrated that the
company is nonetheless sufficiently independent
from State interference,
(35) Rainbow
group
contests
the
finding
on
assets
transferred
to one company without a monetary consideration or
otherwise at prices reflecting market values on the basis
that this company had stopped production in the RIP.
Indeed the company stopped production. However, the
company was still selling its previously produced
— exchange rate conversions are carried out at the
products on the domestic market. Thus an MET
market rate, and
assessment had to be performed for this company as
well to ascertain that there were no significant distortions
carried over from the former non-market economy
system that could affect prices.
— State interference is not such as to permit circum
vention of measures if individual exporters are given
different rates of duty.
(36) It
is
therefore
considered
that
GT
Enterprise
failed
to
meet the first and second criteria for MET, Jintian
Industrial (Nanjing) Ltd failed to meet criterion two and
(38) The
two
exporting
producers
within
the
group
having
three, Golden Time Chemical (Jiangsu) Ltd failed to meet
exported sodium cyclamate during the RIP claimed IT.
criteria one and two and three for MET and Nanjing
It was not necessary to make an IT assessment for the
Jinzhang Industrial Ltd failed to meet criteria one, two
other companies in the Rainbow group given that they
and three. If one related company associated with the
are not exporters of the product concerned. On the basis
production and sale of the product concerned does not
of the information available and verified during the verifi
qualify for MET, MET cannot be granted to the group of
cation visits, it was found that these two exporting
related companies. Therefore, as all of the companies
producers fulfilled the requirements foreseen in
assessed for MET individually failed to meet the
Article 9(5) of the basic Regulation and thus could be
relevant criteria it is concluded that the Rainbow group
granted IT.

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2.3. Dumping
2.3.2. Determination of normal value
2.3.1. Analogue country
(47) Pursuant to Article 2(7)(a) of the basic Regulation,
normal value was established on the basis of information
(39) According
to
Article
2(7)(a)
of
the
basic
Regulation,
received from the producer in the analogue country as
normal value for the exporting producers not granted
set out below. It is noted that the Indonesian producer
MET has to be established on the basis of the price or
was investigated in a previous investigation concerning
constructed value in a market economy third country
imports of sodium cyclamate from Indonesia ( 1 ). The data
(analogue country).
now provided by the company in its questionnaire
response were found to be reliable and a solid basis to
establish normal value for the purposes of this investi
(40) In the notice of initiation the Commission indicated its
gation. Indeed, average sales prices as well as the average
intention to use Indonesia (the analogue country in the
cost of production followed a similar trend in line with
original investigation) as appropriate analogue country
the evolution of the average raw material cost. In
for the purpose of establishing normal value and
addition, this trend could be confirmed by a similar
invited interested parties to comment thereon.
evolution of the average raw material cost observed in
the Union market.
(41) The Commission has received no comments on the
choice of the analogue country.
(48) The domestic sales of the Indonesian producer of the like
product were found to be representative in terms of
(42) The
Commission
sought
cooperation
from
producers
in
volume compared to the product concerned exported
Indonesia. Letters and relevant questionnaires were sent
to the Union by the group of companies concerned in
to all known companies. Of the several companies
the PRC.
contacted, only one producer submitted the necessary
information for the determination of normal value and
agreed to partially cooperate with the review. As the
company could not accept a verification visit at its
(49) The
Commission
subsequently
identified
those
product
premises, the Commission analysed the information
types, sold domestically by the producer in the
provided for completeness and consistency. The
analogue country, that were identical or directly
information was found to be sufficient and reliable for
comparable to the types sold for export to the Union.
the determination of the normal value and, whenever
The standard product type of the Indonesian producer
necessary, the Indonesian producer provided clarifications
was found to be directly comparable.
sought by the Commission. The information used was
cross-checked with information provided in the review
request.
(50) For the standard product type sold by the producer in
the analogue country on its domestic market and found
(43) The investigation established that Indonesia has a
to be directly comparable with the type sold for export
competitive market for the like product.
to the Union, it was established whether domestic sales
were sufficiently representative for the purposes of
Article 2(2) of the basic Regulation. Domestic sales of
(44) The
investigation
further
revealed
that
the
production
a particular type of sodium cyclamate were considered
volume of the cooperating Indonesian producer
sufficiently representative when the total domestic sales
constitutes considerably more than 5 % of the volume
volume of that type during the IP represented 5 % or
of Chinese exports of the product concerned to the
more of the total sales volume of the comparable type
Union, hence the production was representative in
exported to the Union by the group of companies
terms of volume. As for the quality, technical specifi
concerned.
cations and standards of the like product in Indonesia,
no major overall differences were found when compared
to Chinese products. Therefore, the Indonesian market
was deemed sufficiently representative for the deter
mination of normal value.
(51) An examination
was also made as to whether the

domestic sales could be regarded as having been made
in the ordinary course of trade, by establishing for the
standard product type the proportion of profitable sales
(45) It
is
noted
that
to
the
Commission’s
knowledge
there
are
to independent customers on the domestic market during
no other production facilities elsewhere in the world,
the investigation period. Since the volume of profitable
besides the known producers in Spain, the PRC and
sales of the like product per product type represented
Indonesia.
more than 80 % of the total sales volume of that type
and where the weighted average price of that type was
equal to or above the cost of production, normal value
(46) In
view
of
all
the
above
it
was
concluded
that
Indonesia
constitutes an appropriate analogue country in
( 1 ) See Implementing Regulation (EU) No 492/2010 (OJ L 140,
accordance with Article 2(7)(a) of the basic Regulation.
8.6.2010, p. 2).

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L 124/8
EN
Official Journal of the European Union
11.5.2012
was based on the actual domestic price, calculated as a
MET. The circumstances that led to the different
weighted average of the prices of all domestic sales of
conclusion are firstly due to the fact that in the current
that type made during the IP, irrespective of whether
review four companies within the group were inves
these sales were profitable or not.
tigated as compared to only GT Enterprise in the
original investigation. The group was recently enlarged
and reorganised with considerable investments and
(52) In the determination of the normal value for the product
there is no indication that this situation would change
type that had not been sold on the domestic market by
in the foreseeable future. Secondly, as regards GT Enter
the producer in the analogue country, the weighted
prise, it was found that the company’s practice of not
average sales price of all the sales of the standard
keeping a clear set of accounting audited in line with
product type was used, after having adjusted for
international accounting standard is an established
differences within the two product types.
practice and nothing indicates that this would change
in the future. Also, its Articles of Association allowing
for State influence had been in force for a longer period
2.3.3. Export price
and there were no indications for their amendment in
the future. In these circumstances, it is considered that
(53) All
exporting
producers
within
the
group
of
companies
the non-MET status of the group is of a lasting nature.
concerned made export sales to the Union through their
related trading company located outside the Union. The
export price was established on the basis of the prices of
the product when sold by the related trading company to
(59) Furthermore,
as
regards
export
price,
the
investigation
the Union, i.e. to an independent buyer, in accordance
showed certain stability in pricing policies of the group
with Article 2(8) of the basic Regulation on the basis of
of companies concerned over a longer period since the
prices actually paid or payable.
price of the product concerned charged to the Union and
to other third countries did not differ significantly and
followed the same trend between 2007 and the RIP. This
2.3.4. Comparison
supports the conclusion that the newly calculated
(54) The
normal
value
and
export
price
were
compared
on
an
dumping margin is likely to be of a lasting nature.
ex-works basis. For the purpose of ensuring a fair
comparison between the normal value and the export
price, due allowance in the form of adjustments was
made for differences affecting price and price compara
(60) It was therefore considered that the investigation showed
bility in accordance with Article 2(10) of the basic Regu
that the structure and behaviour of the group of
lation. Accordingly, adjustments were made for
companies concerned, including the circumstances that
differences in transport, insurance, handling, loading
led to the initiation of the current review, were
and ancillary costs and credit cost where applicable and
unlikely to change in the foreseeable future in a
supported by verified evidence.
manner that would affect the findings of the current
review. Therefore it was concluded that the changed
circumstances are of a lasting nature and that the appli
2.3.5. Dumping margin
cation of the measure at its current level is no longer
sufficient to offset dumping.
(55) The
dumping
margin
was
established
on
the
basis
of
a
comparison of a weighted average normal value with a
weighted average export price for all exporting
producers, in accordance with Article 2(11) of the basic
3. AMENDMENT OF THE ANTI-DUMPING MEASURES
Regulation.
(61) In view of the findings of increased dumping as well as
the lasting nature of the changed circumstances, it is
(56) This
comparison
showed
a
dumping
margin
of
14,2
%,
considered that the existing measures are no longer
expressed as a percentage of the CIF frontier price, duty
sufficient to counteract the dumping which is causing
unpaid.
injury. The measures imposed by Implementing Regu
lation (EU) No
492/2010 on imports of sodium
cyclamate originating in the PRC should therefore be
2.4. Lasting nature of changed circumstances
modified for GT Enterprise and the same duty should
be imposed to the other exporting producer within the
(57) In
accordance
with
Article
11(3)
of
the
basic
Regulation,
group by amending that Regulation accordingly.
it was examined whether the circumstances on the basis
of which the current dumping margin was based have
changed and whether such change was of a lasting
nature.
(62) No
individual
injury
margin
can
be
established
in
the
current review, since it is limited to the examination of
dumping as far as the GT Enterprise and its related
(58) The
current
findings
are
based
on
the
rejection
of
the
companies within the group are concerned. Therefore,
claim for the market economy treatment to the group of
the dumping margin established in the current review
companies concerned in the current review whereas the
was compared to the injury margin as established in
member of the group of related companies investigated
the original investigation. Since the latter was higher
in the original investigation GT Enterprise was granted
than the dumping margin found in the current review,

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EN
11.5.2012 Official
Journal
of
the
European
Union L
124/9
a definitive anti-dumping duty should be imposed for the
these cases refer to investigations where several countries
group of companies concerned at the level of the
were concerned and the principle of non-discrimination
dumping margin found in the current review.
was applied vis-à-vis imports from different countries.
Secondly, in these cases the reason for terminating the
measures on some countries was that measures on other
countries were not imposed because the Council did not
(63) Regarding
the
form
of
the
measure,
it
was
considered
that the amended anti-dumping duty should take the
adopt the proposal within the statutory time limits
same form as the duties imposed by Implementing Regu
(LAECs, flat-rolled products of iron or non-alloy steel).
lation (EU) No 492/2010. To ensure efficiency of the
Therefore even though indeed it was found necessary to
measures and to discourage price manipulation it was
terminate the proceedings of anti-dumping measures in
considered appropriate to impose duties in the form of
the simultaneous proceedings in the quoted cases in
a specific amount per kilo. As a result, the anti-dumping
order to respect the principle of non-discrimination,
duty to be imposed on imports of the product concerned
these have no relevance for the current review. A
produced and sold for export to the Union by the group
further reference to the approach taken in monosodium
of companies concerned, calculated on the basis of the
glutamate ( 4 ) concerns a case where the complainant
dumping margin as established in the current review
intended to withdraw its complaint concerning imports
expressed as a specific amount per kilo, should be
of Brazil even though these were found to have been
EUR 0,23 per kilo.
dumped. In that case it was envisaged not to accept
the withdrawal of the complaint because it was
concluded that to take measures against the other
countries in the absence of measures against Brazil
4. DISCLOSURE
would have been discriminatory.
(64) The group of companies concerned as well as the other
parties concerned were informed of the essential facts
and considerations on the basis of which it was
intended to propose the amendment of the anti-
(67) Furthermore,
the
two
situations
are
quite
different.
In
the
dumping measures in force.
parallel proceeding, the complaint was withdrawn and it
was concluded that the termination was not against the
Union interest. In the current review, the request was
(65) Rainbow group commented on the final disclosure.
maintained and it was found that the dumping by the
These comments related mostly to the withdrawal of
Rainbow group increased. Therefore, increasing the duty
the complaint in the ongoing investigation concerning
for that group does not constitute discrimination.
imports of sodium cyclamate originating in the People’s
Republic of China limited to two Chinese exporting
producers, Fang Da Food Additive (Shen Zhen) Limited
and Fang Da Food Additive (Yang Quan) Limited (‘Fang
(68) The
Rainbow
group
also
demanded
that
the
withdrawal
Da group’) (‘parallel proceeding’) ( 1 ). Rainbow claimed
of the complaint should result in the termination of the
that the withdrawal of the complaint in the parallel
current review with respect to Rainbow group as the two
proceeding should, logically and legally, also result in
proceedings were initiated on the basis of the same
the termination of anti-dumping measures against other
procedural document, covered the same period of inves
producers in the PRC or, at the least, result in the
tigation and in the complaint the complainant treated
termination of the current review with respect to
Fang Da group and Rainbow group together for all
Rainbow group.
practical purposes.
(66) It demanded the termination of the anti-dumping
measures imposed by Implementing Regulation (EU)
No 492/2010 arguing that in the absence of any
(69) Secondly,
it
claimed
that
despite
the
investigation
against
finding that imports by Fang Da were not dumped
Fang Da group being initiated under Article 5 of the
and/or imports by Fang Da were not causing injury,
basic Regulation, the investigation concerning imports
the principle of non-discrimination contained in
of the Fang Da group and the interim review concerning
Article 9(5) of the basic Regulation mandates the
the imports of Rainbow group are legally and for all
termination of the anti-dumping measures imposed. To
practical purposes in essence the same proceeding.
support its argument it referred to previous Council
Finally it stated that having created the distinction
Regulations where simultaneous interim reviews
between proceedings and investigations, Article 9(3) of
concerning imports of some countries were terminated
the basic Regulation in effect means that even though
without the imposition of measures following the non-
Fang Da group was subject to a zero duty following the
imposition of measures in anti-dumping investigations
original investigation, it remained subject to the
concerning the imports of the same products from
proceeding. For this reason, the withdrawal of the
other countries (LAECs (
complaint concerning the imports by the Fang Da

2 ), flat-rolled products of iron
or non-alloy steel (
group should thus in view of the Rainbow group

3 )). However, it should be noted that
concerned result in the termination of the current
review as well.
( 1 ) OJ C 50, 17.2.2011, p. 9.
( 2 ) OJ L 22, 27.1.2000, p. 1, recitals 134 and 135.
( 3 ) OJ L 294, 17.9.2004, p. 3.
( 4 ) OJ L 264, 29.9.1998, p. 1.

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L 124/10
EN
Official Journal of the European Union
11.5.2012
(70) It
should
be
noted
in
this
respect
that
the
document
HAS ADOPTED THIS REGULATION:
presented by the complainant constituted both the
complaint for the anti-dumping investigation on the
Article 1
basis of Article 5 of the basic Regulation and the
request for this interim review on the basis of
The table in Article 1(2) of Council Implementing Regulation
Article 11(3) of the basic Regulation. It also presented
(EU) No 492/2010 is hereby amended by replacing the
sufficient evidence to justify initiating both proceedings
following:
individually. Indeed, the Commission has initiated the
Article 5 investigation and the interim review in two
separate notices of initiation. Thus the anti-dumping
Rate of duty
Country Company
(EUR per
TARIC additional
investigation based on Article 5 of the basic Regulation
kilogramme)
code
and the interim review based on Article 11(3) of the
basic Regulation are two different proceedings.
‘The
Golden Time
0,11 A473’
People’s
Enterprise (Shenzhen)
Republic of Co. Ltd, Shanglilang,
China
Cha Shan Industrial
Area, Buji Town,
(71) Rainbow
group
presented
further
arguments
speculating
Shenzhen City,
on the possible reasons for the withdrawal of the
Guangdong Province,
complaint. As these arguments are hypothetical and irrel
People’s Republic of
evant, they cannot be addressed and are thus rejected.
China
with the following:
(72) Finally, Rainbow group stated that the Commission has
manifestly violated its rights to have 10 days to
comment on the final disclosure as a non-confidential
Rate of duty
Country Company
(EUR per
TARIC additional
version of the withdrawal letter was disclosed to it
kilogramme)
code
seven days before the deadline to submit comments.
‘The
Golden Time
0,23 A473’
People’s
Enterprise (Shenzhen)
Republic of Co. Ltd, Shanglilang,
China
Cha Shan Industrial
(73) As
explained
in
recital
70,
the
Article
5
investigation
in
Area, Buji Town,
the framework of which Rainbow group received an
Shenzhen City,
information letter about the withdrawal of the
Guangdong Province,
complaint is a separate proceeding from the current
People’s Republic of
review. Rainbow group was an interested party in the
China; Golden Time
Article 5 review and only for this reason was it
Chemical (Jiangsu) Co.,
notified of the withdrawal of the complaint. This notifi
Ltd, No 90-168,
cation letter was not part of the final disclosure in the
Fangshui Road,
Chemical Industry
current review. The Rainbow group had 30 days to
Zone, Nanjing, Jiangsu
comment on the final disclosure in the current
Province, People’s
proceeding. Therefore its right to have sufficient time
Republic of China
to comment was not violated.
Article 2
(74) To
sum
up,
the
comments
received
were
not
such
as
to
This Regulation shall enter into force on the day following that
change the above conclusion,
of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 7 May 2012.
For the Council
The President
N. WAMMEN

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Document Outline

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