HTML PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN"L 49/10
EN
Official Journal of the European Union
22.2.2013
REGULATIONS
COUNCIL IMPLEMENTING REGULATION (EU) No 157/2013
of 18 February 2013
imposing a definitive anti-dumping duty on imports of bioethanol originating in the United States
of America
THE COUNCIL OF THE EUROPEAN UNION,
than 25 %, of the total Union production of bioethanol.
The complaint contained prima facie evidence of dumping
of the said product and of material injury resulting
therefrom, which was considered sufficient to justify
Having regard to the Treaty on the Functioning of the European
the initiation of an investigation.
Union,
Having regard to Council Regulation (EC) No 1225/2009 of
1.2. Parties concerned by the proceeding
30 November 2009 on protection against dumped imports
(4) The
Commission
officially
advised
the
complainant,
other
from countries not members of the European Community ( 1 )
known Union producers, the exporters/producers in the
(‘the basic Regulation’), and in particular Article 9(4) thereof,
USA, importers, and other parties known to be
concerned, and the authorities of the USA of the
initiation of the proceeding. Interested parties were
Having regard to the proposal from the European Commission
given an opportunity to make their views known in
after consulting the Advisory Committee,
writing and to request a hearing within the time limit
set in the notice of initiation.
Whereas:
(5) All
interested
parties,
who
so
requested
and
showed
that
there were particular reasons why they should be heard,
were granted a hearing.
1. PROCEDURE
1.1. Initiation
1.2.1. Sampling of exporters/producers in the USA
(1) On
25
November
2011,
the
European
Commission
(‘the
Commission’) announced, by a notice (‘NOI’) published
(6)
In view of the potentially large number of exporters/pro
in the Official Journal of the European Union ( 2 ), the
ducers in the USA, sampling was envisaged in the notice
initiation of an anti-dumping proceeding (‘AD
of initiation in accordance with Article 17 of the basic
proceeding’ or ‘the proceeding’) with regard to imports
Regulation.
into the Union of bioethanol originating in the United
States of America (‘USA’ or ‘the country concerned’).
(7) In
order
to
enable
the
Commission
to
decide
whether
sampling would be necessary and if so, to select a
(2)
On the same day, the Commission announced, by a
sample, exporters/producers in the USA were asked to
notice published in the Official Journal of the European
make themselves known within 15 days from the date of
Union ( 3 ), the initiation of an anti-subsidy proceeding
the initiation of the investigation and to reply to a
with regard to imports into the Union of bioethanol
sampling form providing, as specified in the notice of
originating in the USA and commenced a separate inves
initiation, basic information on their activities related to
tigation (‘AS proceeding’). This proceeding was
production and sales of bioethanol during the period
terminated on 21 December 2012 without imposition
from 1 October 2010 to 30 September 2011 (‘the inves
of countervailing measures.
tigation period’ or ‘the IP’).
(3) The
AD
proceeding
was
initiated
following
a
complaint (8) The
relevant
US
authorities
were
also
consulted
for
the
lodged on 12 October 2011 by the European Producers
selection of a representative sample.
Union of Renewable Ethanol Association (ePURE) (‘the
complainant’) on behalf of producers representing more
(9) More
than
60
exporters/producers
made
themselves
( 1 ) OJ L 343, 22.12.2009, p. 51.
( 2 ) OJ C 345, 25.11.2011, p. 7.
known and provided the requested information within
( 3 ) OJ C 345, 25.11.2011, p. 13.
the 15 days deadline.

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EN
22.2.2013 Official
Journal
of
the
European
Union L
49/11
(10) In
accordance
with
Article
17
of
the
basic
Regulation,
1.2.2. Sampling of Union producers
the Commission selected a sample based on the largest
representative quantity of exports of bioethanol to the
(17) In view of the potentially large number of Union
Union which could reasonably be investigated within
producers, sampling was envisaged in the notice of
the time available. The sample selected consisted of six
initiation in accordance with Article 17 of the basic
US bioethanol producers (‘US sample’).
Regulation.
(11) During the investigation it was found that the production
of one producer included in the US sample was not
(18) In the notice of initiation the Commission announced
exported to the Union in the IP. This company was
that it had provisionally selected a sample of Union
therefore removed from the sample.
producers (‘EU sample’). This sample consisted of five
companies and groups, out of the 19 Union producers
that were known prior to the initiation of the investi
gation. The sample was selected on the basis of the
(12) Despite the fact that the other sampled producers
production volume of bioethanol during the investigation
mentioned exports of bioethanol to the Union in their
period and the location of the known producers. This
sampling form, the investigation showed that none of
sample represented 48 % of the total estimated Union
them exported bioethanol to the Union market. In fact
production during the IP.
they were selling domestically to unrelated traders/

blenders which then blended it with gasoline and
resold it domestically and for export in particular to
the Union. During the investigation on-spot, it became
clear that in fact, contrary to the impression that had
(19) But the investigation revealed that the groups included in
resulted from the information provided by the sampled
the EU sample consisted of a large number of companies
US producers in their sampling forms, those producers
or single entities producing and selling the like product.
were not systematically aware whether or not their
In this case it would have meant to investigate 13
production was intended for the Union market or any
companies and it was not possible to investigate all of
other destination including the US market and had no
them given the time available for the investigation. It was
knowledge of the traders/blenders sales prices. In effect,
thus decided to re-examine the data available for the
this means that the US producers of bioethanol are not
selection of a representative sample. It was considered
the exporters of the product concerned to the Union. The
that the sample should be based on the largest individual
exporters are in fact the traders/blenders. Hence, the data
producing entities in the Union and in the groups taking
collected and verified at the level of the US sample at
also into account a certain geographical spread amongst
provisional stage did not allow establishing whether or
Union producers.
not US bioethanol was exported at dumped prices to the
Union during the IP.
(20) Hence,
a
definitive
EU
sample
of
six
individual
producers
was ultimately selected based on representativity in terms
(13) No
anti-dumping
measures
could
thus
be
imposed
at
that
time.
of the production and sales volume of bioethanol during

the IP and the geographical location of the producer.
These producers located in Belgium, the Netherlands,
France, UK, Sweden and Germany represent 36 % of
(14) In
order
to
identify
the
exports
of
bioethanol
to
the
the total estimated Union production and 44 % of the
Union, the US sample relied mainly on data provided
total production reported by the companies that
to them by the unrelated blenders/traders which were
submitted data for the selection of a sample. This
not investigated at provisional stage. Although at
sample was deemed to be representative for the exam
provisional stage one such trader cooperated in the inves
ination of possible injury to the Union industry.
tigation and provided additional data, that data was not
sufficient to establish precisely and reliably the necessary
data for the purpose of calculating dumping margins.
(21) Interested parties were given the opportunity to
comment on the appropriateness of the choice of the
(15) In
order
to
complete
the
dumping
investigation,
it
was
sample.
thus considered necessary to rather base it on the data of
traders and blenders which were actually exporting the
product concerned to the Union.
(22) Some
parties
claimed
that
the
EU
sample
was
less
repre
sentative than the one originally selected which included
(16) Dumping
questionnaires
were
thus
sent
to
the
eight
complete groups of companies. In their view, an
largest US traders/blenders that were identified during
objective analysis of the situation of the Union industry
the investigation of the US sample. These traders/blenders
could only be made by including all companies which
represent over 90 % of total exports of bioethanol to the
are part of groups in the sample. They alleged in
Union. Two agreed to cooperate in the investigation and
particular that costs and revenues could be allocated to
their exports represent about 51 % of total exports of
certain companies of a group which are not visited and
bioethanol to the Union during the IP.
may thus not be reflected in the injury analysis.

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L 49/12
EN
Official Journal of the European Union
22.2.2013
(23) In
this
respect
it
should
be
noted
that
the
Commission
show the state of the economic situation of the respon
duly considered and examined the data provided by all
dents. Hence, the Commission had sufficient relevant
sampled and non-sampled companies and in particular
information at its disposal to select a representative
the companies belonging to groups, in order to ensure
sample respecting the criteria of Article 17 of the basic
that all costs and revenues involved in the production
Regulation but could not make any result-oriented
and sale by the companies selected in the sample had
selection of companies. The above claims were
been fully and correctly reflected in the injury analysis.
therefore rejected.
(24) Some
parties
contested
the
inclusion
in
the
EU
sample
of
(29) Finally, it was claimed that the sample should have
Union producers which were in a start-up phase. They
included companies producing bioethanol from sugar
also claimed that one company with important idle
beet since production from this raw material can be
capacity in 2011, located in a Member State that did
much more profitable than production from, for
not implement the Renewable Energies Directive
example, wheat. Even though this claim was not
(‘RED’) ( 1 ), should not have been included in the
substantiated, the information available has shown that
sample. It was also claimed that in case these
bioethanol produced from sugar beet represents only a
companies would be finally included in the sample, the
minor part of total Union production, around 12 % in
Commission should adjust their data in order to account
2011, and that two of the companies included in the
for these extraordinary circumstances.
sample partially use sugar beet as feedstock to produce
bioethanol. Therefore, the claim is rejected.
(25) It is considered that the fact that companies recently
started or resumed operations does not preclude them
(30) Based on the above, it is considered that the sample
from being part of the sample. The inclusion of these
selected as explained above for the purpose of the
companies is not in contravention with the criteria for
injury analysis is representative for the Union industry.
the selection of a sample as laid down in Article 17 of
the basic Regulation. With regard to the adjustment of
their data, parties did not provide any specific issue or
1.2.3. Sampling of unrelated importers
substantiated evidence to support their claim, nor a basis
on how to make the claimed adjustment.
(31) In
view
of
the
potentially
large
number
of
importers
involved in the proceeding, sampling was envisaged for
importers in the notice of initiation in accordance with
Article 17 of the basic Regulation.
(26) Furthermore,
the
investigation
did
not
reveal
any
cost,

such as for example accelerated depreciations, which
should be adjusted to correct any distortion due to the
start-up of activity. Hence, this claim is rejected.
(32) Only
three
importers
provided
the
requested
information
and agreed to be included in the sample within the
deadline set in the notice of initiation. In view of the
limited number of cooperating importers, sampling was
(27) Some
parties
also
disputed
the
fact
that
one
company
not deemed to be necessary.
that was provisionally selected in the EU sample and
located in a Member State with high consumption and
production of bioethanol was no longer part of the EU
sample. They claimed that this economic situation of this
1.2.4. Questionnaire replies and verifications
company was good and suggested that this was the
reason for its exclusion from the sample. They further
(33) The
Commission
sent
questionnaires
to
all
parties
known
argued that the selection of the sample had been skewed
to be concerned. Questionnaires were thus sent to the
towards finding injury. According to these parties the
sampled USA exporters/producers, the sampled Union
Commission should have sent so-called mini-question
producers, the three cooperating unrelated importers in
naires to all producers to collect the relevant data in
the Union and to all users known to be concerned by the
order to select a sample.
investigation.

(34) Replies
were
received
from
the
sampled
USA
exporters/
(28) With
regard
to
the
sending
of
mini-questionnaires,
it
producers, the sampled Union producers, two unrelated
should be noted that, prior to the selection of the
importers and four users.
sample, the Commission requested information from all
Union producers known to be concerned in order to
collect the relevant data for the purpose of the
selection of a sample. As mentioned in point 5.2.1 of
(35) The
Commission
sought
and
verified
all
the
information
the NOI, this information was available as from the date
provided by interested parties and deemed necessary for
of the initiation of the investigation in the file for
the purposes of a definitive determination of dumping,
inspection by interested parties and was not such as to
resulting injury and Union interest.
( 1 ) Directive 2009/28/EC of the European Parliament and of the
Council of 23 April 2009 on the promotion of the use of energy
(36) Verification
visits
were
carried
out
at
the
premises
of
the
from renewable sources (OJ L 140, 5.6.2009, p. 16).
following companies:

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EN
22.2.2013 Official
Journal
of
the
European
Union L
49/13
Exporters/producers in the USA
cultural products (as listed in Annex I to the Treaty on
the Functioning of the European Union), denatured or
— Marquis Energy LLC, Hennepin, Illinois
undenatured, excluding products with a water content
of more than 0,3 % (m/m) measured according to the
— Patriot Renewable Fuels LLC, Annawan, Illinois
standard EN 15376, but including ethyl alcohol
produced from agricultural products (as listed in Annex
— Platinum Ethanol LLC, Arthur, Iowa
I to the Treaty on the Functioning of the European
Union) contained in blends with gasoline with an ethyl
alcohol content of more than 10 % (v/v) originating in
— Plymouth Energy Company LLC, Merrill, Iowa
the USA, currently falling within CN codes
ex 2207 10 00,
ex 2207 20 00,
ex 2208 90 99,
— POET LLC, Wichita, Kansas and Sioux Falls, South
ex 2710 12 21,
ex 2710 12 25,
ex 2710 12 31,
Dakota
ex 2710 12 41,
ex 2710 12 45,
ex 2710 12 49,
ex 2710 12 51,
ex 2710 12 59,
ex 2710 12 70,
Unrelated trader in the USA
ex 2710 12 90,
ex 3814 00 10,
ex 3814 00 90,
ex 3820 00 00 and ex 3824 90 97.
— Bio Urja Trading LLC, Houston, Texas
(39) Bioethanol
can
be
produced
from
various
agricultural
Related trader in Switzerland
feedstocks, such as sugar cane, sugar beet, potatoes,
manioc and corn. In the USA a distinction on the
— Cargill International SA, Geneva
basis of the various feedstocks is made, as described
below:
Producers in the Union
(a) The Conventional Biofuel (mainly produced from
— Abengoa Energy Netherlands B.V., Rotterdam, the
corn feedstock and commonly called corn ethanol)
Netherlands
which is defined as a renewable fuel derived from
corn starch produced from facilities that
— BioWanze S.A., Wanze, Belgium
commenced construction after the date of
enactment of the Energy Independence and Security
— Crop Energies Bioethanol GmbH, Mannheim,
Act in December 2007 ( 1 ) and which must achieve in
Germany
the future a 20 % reduction in greenhouse gas
(‘GHG’) emissions compared to baseline lifecycle
— Ensus, Yarm, United Kingdom
GHG emissions of gasoline and diesel.
— Lantmnnen Energi/Agroetanol, Norrkping, Sweden
(b) The Advanced Biofuel which is defined as a
renewable fuel other than ethanol derived from
— Tereos BENP, Lillebonne, France
corn starch, which is derived from renewable
biomass and has lifecycle GHG emissions, as
determined by the Energy Policy Act (‘EPA’) Adminis
Unrelated importers in the Union
trator, that are at least 50 % less than baseline GHG
emissions. This term includes ‘cellulosic biofuels’ such
— Shell Trading Rotterdam B.V., Rotterdam, the
as bioethanol and ‘biomass-based diesel’. The
Netherlands
schedule for Advanced Biofuels includes the
schedule for Cellulosic Biofuels, Biomass-Based
— Greenergy Fuels Limited, London, United Kingdom
Diesel, and Undifferentiated Advanced Biofuels.
Users in the Union
(40) More
specifically,
Cellulosic
Biofuel
( 2 ) is defined as a
renewable fuel derived from any cellulose, hemicellulose,
— Shell
Nederland
Verkoopmaatschappij
B.V.
or lignin that is derived from renewable biomass and that
Rotterdam, the Netherlands
has lifecycle GHG emissions, as determined by the EPA
Administrator, that are at least 60 % less than the
1.3. Investigation period and period considered
baseline lifecycle GHG emissions. Cellulosic biofuels
include cellulosic bioethanol. There are researches and
(37) The
investigation
of
dumping
and
injury
covered
the
pilot projects largely supported by the US Federal
period from 1 October 2010 to 30 September 2011.
Government for producing Advanced Biofuels and in
The examination of trends relevant for the assessment
particular cellulosic bioethanol, produced in particular
of injury covered the period from January 2008 to the
out of agricultural and forestry wastes. According to
end of the IP (‘the period considered’).
US officials and publicly available data ( 3 ), the production
of this type of bioethanol will reach around 4 billion
2. PRODUCT CONCERNED AND LIKE PRODUCT
(
2.1. Product concerned

1 ) See www.ethanol.org — RFS (Renewable fuels standard) under the

Energy Independence and Security Act of 2007.
( 2 ) See US Internal Revenue Code (IRC) — sec. 40(b)(4) point E.
(38) The
product
concerned
is
bioethanol,
sometimes
referred
( 3 ) See www.ethanol.org — RFS (Renewable fuels standard) under the
to as ‘fuel ethanol’, i.e. ethyl alcohol produced from agri
Energy Independence and Security Act of 2007.

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L 49/14
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Official Journal of the European Union
22.2.2013
litres in 2014 and more than 50 billion litres by 2021.
large-scale production also allowed US producers to
Production of cellulosic bioethanol was negligible in the
become exporter of bioethanol to other markets,
IP.
including the Union.
(41) During
the
investigation
period
up
to
now
corn
has
been
(46) Based
on
official
sources,
market
and
publicly
available
the main feedstock used in the USA, while the main
information ( 2 ), all types of bioethanol and bioethanol in
feedstock used in the Union is wheat.
blends, namely mixtures of bioethanol with mineral

gasoline as explained in recital 43 above, which are
produced in the USA and sold either in the USA or
exported are considered to be bioethanol fuels and are
part of a legislative package concerning energy efficiency
(42) The
investigation
showed
that
bioethanol
is
generally
and renewable energy and alternative fuels in the USA.
sold in its pure form to blenders/traders which
blend ( 1 ) it with gasoline in particular to produce high-
level blends which are exported or sold on the domestic
market for further blending and used for fuel
(47) It
has
been
found
that
all
types
of
bioethanol
and
bioe
consumption. Blending is not a very complex operation
thanol in blends covered by this investigation, despite
and may be accomplished by mixing the products in
possible differences in terms of feedstock used for the
special tanks adding the desired percentages of bioe
production, or variances in the production process, have
thanol and gasoline.
the same or very similar basic physical, chemical and
technical characteristics and are used for the same
purposes. The possible minor variations in the product
concerned do not alter its basic definition, its character
istics or the perception that various parties have of it.
(43) To identify the various types of bioethanol, bioethanol
blends or mixtures in use around the world, ethanol fuel
mixtures have ‘E’ numbers which describe the percentage
of ethanol fuel in the mixture by volume. For example,
E85 is 85 % anhydrous ethanol and 15 % gasoline. Low
(48) Some
parties
claimed
that
the
definition
of
the
product
ethanol blends, from E5 to E25, are also known as
concerned was not clear, in particular because it did not
gasohol, though internationally the most common use
allow for distinguishing the bioethanol for fuel appli
of the term gasohol refers to the E10 blend. Blends of
cations from that destined for other applications.
E10 or less have been used in more than twenty
Hence, they claimed that the investigation should cover
countries around the world by 2011, led by the USA,
ethanol for all uses and ethanol from all sources,
where almost all retail gasoline sold in 2010 was blended
including synthetic ethanol that competes with bioe
with 10 % of bioethanol.
thanol for industrial use.
(49) Another
party
claimed
the
opposite,
namely
that
the
(44) The
investigation
showed
that
all
types
of
bioethanol
are
investigation should only cover bioethanol for fuel appli
considered to be biofuels under the current National
cations and that bioethanol for industrial use should thus
Renewable Fuel Standard program (RFS1) established
be excluded.
under the Energy Policy Act of 2005, which amended
the Clean Air Act by establishing the first national
renewable fuel standard. The U.S. Congress gave the US
Environmental Protection Agency (EPA) the responsibility
to coordinate with the US Department of Energy, the US
(50) In this context, it is noted that the product concerned
Department of Agriculture, and stakeholders to design
should primarily be defined on the basis of its basic
and implement this program.
physical, technical and chemical characteristics and not

its uses or applications. A product which has various
applications may indeed have the same or similar basic
characteristics notwithstanding its further use and in
certain circumstances it may be necessary to deepen
(45) As
a
result
of
their
energy
policy
the
USA
became
the
the analysis of the product definition and the product
largest worldwide producer of bioethanol as from 2005
scope in the light of the specificity of the industry and
accounting for 57,5 % of global production. In 2009, the
the market.
requirements under the EPA ensured that at least
11 billion US gallons of renewable fuels were produced,
( 2 ) For instance: (a) the information published by the American
in particular to keep up with the targets established by
Coalition for Ethanol (ACE) on the web; (b) the Energy Policy Act
the Energy Independence and Security Act of 2007. The
(EPA) of 2005, in particular P.L. 109-58; (c) the Energy Inde
pendence and Security Act of 2007 (P.L. 110-140, H.R.6) which
amended and increased the Renewable Fuels Standard (RFS)
( 1 ) The investigation showed that to avail the alcohol mixture credit, as
requiring 9 billion gallons of renewable fuels use in 2008 and
defined in Sec. 40(b)(3) of the IRC in the USA it sufficed to blend
13,9 billion gallons in 2011; (d) fact sheets issued by the US
neat bioethanol with as little as 0,1 % of gasoline.
Department of Energy under the Clean cities actions etc.

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Journal
of
the
European
Union L
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(51) In the present case, it was clear that the notice of
from the USA should be considered to be alike within
initiation did not intend to cover synthetic ethanol in
the meaning of Article 1(4) of the basic Regulation.
the product definition. Synthetic ethanol has different
characteristics than bioethanol and does not correspond
to the above criteria linked to the definition of the
(57) Some
of
the
sampled
US
producers
claimed
that
the
product concerned. There is no producer that focuses
bioethanol produced and sold on the USA market is
on the production of that product which took part in
not like the product concerned, since it does not
this investigation. Therefore, synthetic ethanol cannot be
strictly correspond to the wording of the product
included in the definition of the product concerned and
description as laid out in the notice of initiation. Effec
is outside the scope of the investigation. Contrary to the
tively, the types bioethanol sold on the USA market have
suggestion made by some parties, this clarification does
a water content above the threshold of 0,3 % and
not lead to a change in the scope of the investigation or
corresponds to the USA standard (ASTM) rather than
the definition of the product concerned and did not have
EN 15376.
any impact on the quality of the data used.
(58) However, the investigation showed that bioethanol
produced for sales on the US market largely shares the
(52) Bioethanol
for
fuel
application
and
bioethanol
destined
to other applications may have similar characteristics.
same basic physical, chemical and technical character
However, during the investigation dumping was
istics as the product concerned. Article 1(4) of the
examined at the level of USA operators which
basic Regulation stipulates that a like product should
produced or blended bioethanol for fuel application,
not necessarily be alike in all respects to the product
namely bioethanol to be included in a fuel mixture.
concerned, but it could be a product that although not
Similarly, the investigation of Union producers focussed
alike in all respects, has characteristics closely resembling
on bioethanol destined to fuel applications and not for
those of the product concerned. This is the case for the
other uses. Hence, bioethanol destined to applications
bioethanol sold in the US market and the bioethanol
other than fuel should not be covered by the scope of
exported to the Union. There are precedents where
this investigation.
products were considered to be like the product

concerned in spite of certain differences ( 2 ).
(53) The
importers
which
will
not
use
the
imported
USA
(59) It
was
therefore
decided
to
reverse
the
provisional
finding
bioethanol for fuel application have the possibility to
and consider that the ASTM bioethanol sold in the US
make a declaration subject to the end use provisions as
market is a like product to the product concerned within
established by the Implementing provisions embedded in
the meaning of Article 1(4) of the basic Regulation.
Articles 291 to 300 of the Union Customs Code ( 1 ).
3. DUMPING
2.2. Like product
3.1. Introduction
(54) It
was
found
that
bioethanol
manufactured
by
the
Union
industry and sold on the Union market have similar basic
(60) As explained in recitals 6 to 16 above, in order to inves
physical, chemical and technical characteristics when
tigate the possible existence of dumping, the investi
compared to bioethanol exported to the Union from
gation covered producers of bioethanol, on the one
the USA.
hand, and traders/blenders which were exporting the
product concerned to the Union market, on the other
hand.
(55) As
described
in
recital
39
above,
bioethanol
can
be
produced from various feedstocks. However, the investi
(61) Pursuant
to
Article
9(5)
of
the
basic
Regulation,
the
gation did not point to the fact that the feedstock used
regulation imposing the duty shall specify the duty for
would lead into any differences in the characteristics of
each supplier or if that is impracticable, the duty for the
the end-product. It was found that the product concerned
supplying country concerned.
produced in the USA in particular from corn and
exported to the Union is interchangeable with that
produced in particular from wheat and sold in the
(62) Certain
producers
claimed
that
it
was
possible
to
identify
Union by Union producers. In addition, there are no
and trace their products when sold to US operators for
significant differences, if any, in the uses and the
export, in particular to the Union. They referred to the
perception by operators and users in the market
concerning bioethanol.
( 2 ) For instance, the Council Regulation (EC) No 2961/95 on persul
phates holding that the Chinese product was ‘like’ the EU one in
spite of quality differences in purity and iron content (OJ L 308,
(56) It
is
therefore
confirmed
that
bioethanol
produced
and
21.12.1995, p. 61, recital 10). See also the ruling of the General
sold in the Union and the product concerned exported
Court in T-2/95, Industrie des Poudres Sphériques, where the Court
held that ‘the institutions could lawfully reach the conclusion that
Chinese and Russian calcium metal were ‘like’ EU calcium metal, in
( 1 ) Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying
spite of differences in oxygen content which made the EU product
down provisions for the implementation of Council Regulation
unsuitable for a particular specific application, representing 11 % of
(EEC) No 2913/92 establishing the Community Customs Code
EU consumption (T-2/95 paras. 202-221)’. This point was not chal
(OJ L 253, 11.10.1993, p. 1).
lenged on appeal (C-458/98 P).

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L 49/16
EN
Official Journal of the European Union
22.2.2013
certification process foreseen by the RED but they could
Union were made through a related trading company,
not in particular make the link between their sales in the
the export price was constructed on the basis of the
US market and the exports made by other operators to
first resale price of the related trader to independent
the EU. As mentioned in recital 12 above and 63 below,
customers in the Union, pursuant to Article 2(9) of the
these producers were also not aware of the level of the
basic Regulation.
export price to the Union.
(68) As regard the sales made via the related trader located in
(63) In the present case it was found that the structure of the
Switzerland, selling, general and administrative costs
bioethanol industry and the way the product concerned
(SG&A) and profit were not deducted from the export
was produced and sold in the US market and exported to
price as they were considered not to be costs between
the Union, made it impracticable to establish individual
importation and resale in the Union. The investigation
dumping margins for US producers. More specifically, the
showed that the principal activity of the related trader
producers in the US sample did not export the product
consisted of cash management for the ‘sugar’ business
concerned to the Union and the investigated traders/
unit to which biofuels belong and the hedging of the
blenders sourced bioethanol from various producers,
risks inherent in the agricultural business by concluding
blended it and sold it in particular for export to the
derivative contracts on both over the counter and
Union, hence, contrary to allegations made by the
organised financial markets.
above parties, it was not possible to trace all purchases
individually and compare the normal values with the
relevant export prices and it is not possible to identify
the producer at the moment of the export to the Union.
(69) Some
US
producers
claimed
that
it
is
the
institutions
In other words, each shipment made to the EU contains
constant practice to take the exporter’s sales price to
bioethanol produced by various US producers in the US
the first independent customer as the export price to
and not only by the US sample. Moreover, the investi
use for dumping calculations. In this case, this price
gation also showed that the price level at which the US
would be the US producers’ sales price to US unrelated
sample charged their US customers in the USA was not
traders/blenders. However, as mentioned in recitals 62
in line with the actual price paid or payable for the
and 63 above, none of the US producers of bioethanol
product concerned when exported to the Union.
exported the product concerned to the Union and they
were not aware of the level of the export price to the EU.
Hence, their domestic price cannot be used as it is not an
export price paid or payable for the product concerned
(64) Therefore,
it
is
considered
that
a
countrywide
dumping
in the Union. Their claim cannot therefore be accepted.
margin should be established.
3.2. Normal value
3.4. Comparison

(70) The
comparison
between
the
weighted
average
normal
(65) For
the
determination
of
normal
value
in
accordance
with Article 2(2) of the basic Regulation, the
value and the weighted average export price per
Commission first established whether the domestic sales
product type established for the cooperating traders/
of the product concerned by the two cooperating traders/
blenders was made on an ex-works basis, taking into
blenders to independent customers were made in repre
account, in accordance with Article 2(10) of the basic
sentative volumes, i.e. whether the total volume of such
Regulation, differences in factors which were demon
sales represented at least 5 % of the total export sales
strated to affect prices and price comparability. One
volume to the Union during the IP.
trader/blender claims that the data on domestic sales

was not representative. As the trader/blenders failed to
provide data on all domestic sales, the calculation is
based on the ones provided in the questionnaire and
during the on-spot visit.
(66) Given that the sales of the like product in the domestic
market were made in sufficient quantity, normal value
was determined on the basis of the price paid or
payable to the two aforementioned traders/blenders, in
the ordinary course of trade, by independent customers
(71) One trader/blender argues that the calculation of the
in the USA.
domestic sales price should be based on spot market
data from the NYMEX. The Commission considers that
verified data from the two trader/blenders is more
reliable.
3.3. Export price
(67) The
cooperating
traders/blenders
provided
data
which
allowed establishing an export price on the basis of
(72) For this purpose, due allowance in the form of
their prices that are actually paid or payable in
adjustments was made for differences in transport,
accordance with Article 2(8) of the basic Regulation.
insurance, handling, loading and ancillary costs where
For those transactions for which the imports into the
applicable and justified.

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EN
22.2.2013 Official
Journal
of
the
European
Union L
49/17
(73) The product concerned and the like product present the
disclose the general method used to establish dumping to
particularity that traders/blenders have received a subsidy
all parties for which no individual data was used in the
mainly in the form of excise tax credits during the IP on
calculations. This method was described in the general
their sales of bioethanol blends. The method used to
disclosure document sent to all parties.
establish normal value and export price is a method
where the actual sales prices, domestic and export of
the said traders/blenders are fully taken into account.
Hence, a comparison of sales made by traders/blenders
4. INJURY
in the US market and export prices of traders/blenders to
the EU, in order to calculate the level of dumping on the
4.1. Union production and Union industry
product concerned, eliminates any possible impact the
subsidy may have had on prices, since the subsidy
(78) The
Union
production
was
established
on
the
basis
of
a
equally affected both domestic and export sales during
market report provided by the complainant during the
the IP. One trader/blender claimed that it had not
investigation. The total Union production of the like
received a subsidy for its domestic sales. However, it
product stated in this report was compared with the
fails to provide proof for this claim; the claim is also
information provided by the 17 cooperating Union
difficult to reconcile with information provided by the
producers. A small difference of around 5 % was found
US authorities on the use of the subsidy.
between the two sets of data. This is explained by the
fact that some relatively small non-cooperating Union
producers did not submit production information. On
this basis, the total Union production was estimated at
3,42 million tonnes during the IP. The Union producers
3.5. Dumping
accounting for the total Union production constitute the
Union industry within the meaning of Articles 4(1) and
(74) As
provided
for
in
Article
2(11)
of
the
basic
Regulation,
5(4) of the basic Regulation and will therefore be referred
the weighted average normal value by product type was
to as the ‘Union Industry’.
compared to the weighted average export price of the
corresponding product type of the product concerned.
Based on that comparison, the cooperating unrelated
traders/blenders were found to have engaged in
dumping practices.
4.2. Union consumption
(79) Union
consumption
was
established
on
the
basis
of
the
total Union production of the Union industry, adding the
volume of imports from third countries established on
(75) The
weighted
average
dumping
margin
of
9,5
%
was
the basis of the best available statistics, whereas the stock
established based on the aggregated data of the
variation and exports of the Union industry as reported
cooperating traders/blenders, and represents the
by the Union industry were deducted. Some parties
countrywide dumping margin for the USA.
claimed that the statistics used to establish consumption
were not complete because significant imports of bioe
thanol from other third countries, especially in the IP,
were not taken into consideration. They also considered
that the volume of imports from the US was over
(76) Some
of the US producers included in the sample
estimated by the Commission and that figures for
claimed that in the case of imposition of definitive
consumption and market share were therefore unreliable.
anti-dumping measures, they expected to obtain their
individual duty margin. In the light of the contents of
recitals 6 to 16 and the reasoning in recitals 60 to 64
above, this claim cannot be accepted as the investigation
(80) These
claims
were
analysed
and
cross-checked
with
the
confirmed that for these operators, in particular because
information available. Regarding the imports from other
they did not have any exports to the Union during the
countries, the parties did not provide any evidence
IP, it was not possible to trace their products when
regarding the volumes of imports of the product
exported to the Union and they had generally no idea
concerned. Nevertheless, imports from other countries
of the timing of the export and of the price paid or
were taken into consideration in the estimation of the
payable by Union importers, hence an export price and
imports. For the volume of US imports, a clerical error
a dumping margin could not be reliably established for
was found in the estimation of US imports during the IP.
these producers.
Hence, the volume of imports has been reassessed and
adjusted where necessary. However, this has no impact
on the conclusions reached in the injury and causality
assessments.
(77) Certain
producers
requested
more
information
on
the
dumping calculations established for the two cooperating
traders/blenders. However, it should be considered on the
one hand that the information requested contains
(81) Regarding the imports of the product concerned, it
business secret information and cannot therefore be
should be underlined that there is no specific customs
disclosed to other parties than the party concerned. On
Combined Nomenclature codes for the product
the other, it is constant practice of the institutions to
concerned. Moreover, the Combined Nomenclature

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L 49/18
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Official Journal of the European Union
22.2.2013
codes where the product concerned can be declared to
Finland and by Eurostat. For the Netherlands, Sweden
the customs authorities include other products in
and Finland, the volume of imports was estimated on
addition to the product concerned.
the basis of the importer and exporter names and the
product description when available. To estimate these
imports, a conservative approach was adopted. All the
(82) For the imports of bioethanol blends, the verified ques
quantities reported were taken into consideration for the
tionnaire responses of the unrelated importers have
calculation of the imports.
shown that most of the imports were declared at
customs under the TARIC code 3824
90
97
99.
However, the volume of imports cannot be obtained
(88) Finally, Eurostat was also used to estimate the residual
directly from Eurostat because this TARIC code
imports into the Union for the Member States other than
includes various chemical products in addition to the
those mentioned in recital 87 above. An adjustment to
product concerned.
the import volumes was applied on the basis of the
percentage of bioethanol used as fuel in the Union.
The source of this adjustment can be found in the
(83) Regarding
the
imports
declared
under
the
Combined
complaint. This percentage was obtained from the
Nomenclature codes 2207 10 00 and 2207 20 00, it
annual ethyl alcohol balance published by the European
was not possible to differentiate between the product
Commission ( 1 ). The percentage of bioethanol used for
concerned and other products not concerned by the
fuel in the Union was 54 % in 2008, 66 % in 2009,
investigation due to the absence of sufficient information
and 68 % in 2010. For the IP, the percentage of 2010
regarding the product imported.
was used for the purpose of estimating the relevant
imports made during the IP.
(84) Therefore,
in
the
absence
of
complete
imports
details
retrievable from Eurostat, it was decided to use also
(89) For the estimation of the imports from other origins, the
other sources of information for the purpose of estab
sources of information used were Eurostat and the
lishing the imports of the product concerned in the
extractions of customs import detailed database
Union market.
provided by the Netherlands, Sweden and Finland. The
same methodology as that used to establish Brazilian
imports was used.
(85) In order to get the best estimate of the imports of the
product concerned originating in the USA, it was
considered that the most reliable basis were the statistics
(90) Regarding the calculation of the CIF average unit price
provided by the US International Trade Commission
for imports from the USA and from Brazil, the source of
(ITC). The volumes of exports reported correspond to
information is the extraction of customs import detailed
the US tariff codes 2207 10 60 and 2207 20 00.
database provided by the Netherlands, Sweden and
Finland. And for the USA, also data from the verified
unrelated importer questionnaire was used. For the
(86) A
reasonable
approach
was
adopted
to
estimate
these
USA, the CIF average prices for 2008 and 2009 were
imports and all the quantities reported by the US Inter
estimated on the basis of the average price reported by
national Trade Commission were taken into
the US ITC for these years, expressed in relation with the
consideration for establishing the US imports into the
CIF average price unit obtained for 2010.
Union market.
(91) The
stock
variation
was
established
on
the
basis
of
the
(87) The
estimate
concerning
the
imports
in
the
Union
orig
Union industry information provided by the
inating from Brazil was based on the following sources
complainant.
of information: reports issued by the United Kingdom
Renewable Fuels Agency for the imports in the United
Kingdom; extractions of customs import detailed
(92) On this basis Union consumption was found to have
database provided by the Netherlands, Sweden and
developed as follows:
2008 2009 2010 IP
Total Union production (tonnes) (A) 2
153
118 2
797
948 3
274
665 3
389
503
Total imports from third countries
1 252 705 1
130
703 859
605 1
031
226
including the country concerned
(tonnes) (B)
Total exports from Union industry to
26 263 41
023 53
085 59
633
non-EU countries (tonnes) (C)
( 1 ) OJ C 225, 18.9.2009, p. 13, OJ C 176, 2.7.2010, p. 6, OJ C 236,
12.8.2011, p. 16.

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22.2.2013 Official
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European
Union L
49/19
2008 2009 2010 IP
Stock variation ( 1 ) (tonnes) (C)
0 4
730 –
8
415 –
5
458
Union Consumption (tonnes) 3
379
559 3
882
897 4
089
600 4
366
554
Index: 2008 = 100 100 115 121 129
Source: (A) market report, (B) Eurostat, the US International Trade Commission, the UK Renewable Fuels Agency and customs import database
provided by the Netherlands, Sweden and Finland; (C) complaint, questionnaire replies from the sampled Union producers, Union industry
information provided in the complaint.
( 1 ) It is assumed that there was no stock variation in 2008.
(93) During
the
period
considered,
the
Union
consumption
exporters were consistently lower than the average
increased significantly, by 29 %. This increase was
Union producers’ prices as explained in recital 117
stimulated by the implementation of the Renewable
below. This systematic price undercutting practiced by
Energies Directive (RED) in the Member States which
the US exporters explains the significant increase in
established growth targets for the consumption of
market share they achieved over the period considered.
renewable energies.
4.3.2. Price undercutting of imports from the country
4.3. Imports into the Union from the country
concerned
concerned
(97) For
the
purpose
of assessing
any
price
undercutting
4.3.1. Volume, market share and price of imports from the
during the IP, the weighted average sales prices per
country concerned
product type of the sampled Union producers charged
to unrelated customers on the Union market, adjusted to
(94) In
terms
of
volume,
market
share
and
price,
imports
into
an ex-works level, were compared to the corresponding
the Union from the USA developed as follows during the
weighted average prices per product type of the US
period considered:
exporters charged to the first independent customer on
the Union market, established on a CIF basis. In order to
allow a fair price comparison, the appropriate
adjustments for the existing customs duties and post-
2008 2009 2010 IP
importation costs were applied to the US price.
Volume of imports 63 406 53
332 348
868 686
185
from the USA
(tonnes) (A)
(98) The
results
of
this
comparison,
when
expressed
as
a
percentage of the sampled Union producers’ sales prices
Index: 2008 = 100 100 84 550 1
082
during the investigation period, showed consistent price
undercutting of 5,6 % on average. This price undercutting
Market share (%) 1,9 1,4 8,5 15,7
indicates the price pressure which was exerted by the
imports from the country concerned on the Union
Index: 2008 = 100 100 73 454 837
market, in particular during the IP.
Average price in 590,6 552,5 542,5 626,7
EUR/tonne (B)
4.4. Economic situation of the Union industry
Index: 2008 = 100 100 94 92 106
4.4.1. Preliminary remarks
Source: (A) export volume declared by the US International Trade Commission,
(B) Customs import database provided by the Netherlands, Sweden
(99) In
accordance
with
Article
3(5)
of
the
basic
Regulation,
Finland and a verified unrelated importers’ questionnaire reply.
the examination of the impact of the dumped imports on
the Union industry included an evaluation of all
economic indicators for an assessment of the state of
(95) Imports
from
the
USA
significantly
increased,
in
terms
of
the Union industry over the period considered.
volume, from 63 406 tonnes to 686 185 tonnes during
the period considered. Similarly, the market share held by
the US exporters in the Union significantly increased
from 1,9 % to 15,7 % over this period.
(100) The injury analysis with regard to macroeconomic data
such as production, production capacity, capacity utili
sation, sales volume, market share, growth, inventories,
employment, productivity and magnitude of the
(96) Although
the
average
US
import
prices
increased
by
6
%
dumping margin is based on the data of the Union
over the period considered, prices charged by US
industry as a whole from ePURE.

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L 49/20
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Official Journal of the European Union
22.2.2013
(101) The injury analysis with regards to microeconomic data
to meet the growing demand in the Union. The fact that
such as prices, profitability, cash flow, investment, return
new producers started production during the period
on investment, ability to raise capital, wages and inven
considered led to positive developments for indicators
tories have been established on the basis of data provided
such as production, production capacity, sales volume
by the sampled Union producers through verified ques
and employment.
tionnaire replies.
(103) The investigation also showed that this type of industry
(102) The bioethanol industry is still in a start-up phase in the
needs a certain time, between two to three years from
Union. Companies have recently invested in new
the moment of start-up, to reach normal levels of
production facilities or have expanded existing capacities
production.
4.4.2. Production, production capacity and capacity utilisation
2008 2009 2010 IP
Production volume (tonnes) 2
153
118 2
797
948 3
274
665 3
389
503
Index: 2008 = 100 100 130 152 157
Production capacity (tonnes) 3
443
766 3
992
640 4
670
076 4
734
915
Index: 2008 = 100 100 116 136 137
Capacity utilisation (%) 63 70 70 72
Index: 2008 = 100 100 112 112 114
Source: based on data from the Union industry provided by the complainant.
(104) As a result of the RED, Union production grew signifi
expected that capacity utilisation would have increased
cantly in the period considered, by around 57 %. From
further as producers normally need between two to
2008 to 2010 the Union production increased by 36 %
three years from the start-up to reach normal levels of
but subsequently, the growth rate slowed down signifi
production, as explained in recital 103 above. This has
cantly and was only 3,5 % in the IP compared to 2010.
however not been the case.
(105) Production capacity increased by 37 % during the period
(107) The investigation thus confirmed that several companies
considered and followed a similar pattern as production.
in the EU started operation in the beginning or during
the period considered due to the expected publication of
the RED. This led to positive developments in particular
for the above injury factors especially in the period up to
(106) Capacity utilisation increased by 14 % during the period
2010. But the situation in the Union market changed in
considered and this increase was achieved in the
coincidence with the surge of US dumped imports in
beginning of the period considered. Given the start-up
2010 and the growth in activity expected during the IP
phase of certain Union producers in 2009, it was
did not materialise.
4.4.3. Sales volume and market share
2008 2009 2010 IP
Sales volume (tonnes) 2
035
367 2
650
526 3
117
410 3
229
326
Index: 2008 = 100 100 130 152 159
Market share (%) 60,2 68,3 76,2 74,0
Index: 2008 = 100 100 113 126 122
Source: based on data from the Union industry provided by the complainant

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22.2.2013 Official
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European
Union L
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(108) Sales volume of the Union industry increased by 59 %
increased only marginally by 1 % during the IP. This
and 13,8 percentage points of market share were gained
trend reflects the trend for capacity and production in
during the period considered. Sales volume grew steadily
the Union.
between 2008 and 2010 but between 2010 and the IP
the sales volume grew less than consumption which
increased by 6,8 % in that period.
(113) The productivity of the Union industry workforce was
measured as the output per person employed in one
year. It increased significantly over the period considered
(109) Similarly, the Union industry market share increased until
by 44 %, reflecting the learning effect and increase in
2010 but then decreased during the IP. In the period
efficiency during and after the start-up phase.
between 2010 and the IP, whilst the US imports
almost doubled their market share, gaining 7,2
percentage points, the Union industry lost 2,2 percentage
points.
4.4.6. Magnitude of the actual dumping margin
(114) Given the volume, market share and prices of the
dumped imports from the country concerned, the
4.4.4. Growth
impact on the Union industry of the dumping margins
established during the IP cannot be considered to be
(110) Union consumption increased significantly during the
period considered, by 29,2 %. Although sales volume
negligible.
and market share also increased during this period, the
Union industry did not fully benefit from this growth in
consumption, in particular as from 2010. From 2010 up
4.4.7. Recovering from the effects of past dumping
to the IP, growth in sales volume of the Union industry
slowed down and market share decreased compared to
(115) This issue is not relevant in this case due to the absence
the previous years.
of past dumping effects.
(111) Some parties claimed that the growth pattern shown by
4.4.8. Average unit prices of the Union industry
certain indicators during the period considered do not
reflect the situation of an injured industry. However, as
2008 2009 2010 IP
explained above, the investigation showed that the
slowdown of growth of the Union industry in 2010
Unit prices (EUR) 702,59 634,88 657,41 768,59
and in the IP coincided with the surge of low-priced
dumped imports from the USA.
Index: 2008 = 100 100 90 94 109
Source: questionnaire replies of sampled Union producers.
4.4.5. Employment and productivity
2008 2009 2010 IP
(116) Prices of the Union industry increased overall by 9 %
during the period considered. They decreased in 2009
Number of employees 2
331 2
419 2
523 2
552
as compared to 2008 but then steadily increased until
the end of the IP. However, the investigation showed that
Index: 2008 = 100 100 104 108 109
the price increases were not sufficient to allow the Union
Industry to cover its costs. The gap between the sale
Productivity
924 1
157 1
298 1
328
prices and the costs further increased in particular
(unit/employee)
during the IP. This situation coincides with the
increased presence of low-priced US dumped imports
Index: 2008 = 100 100 125 141 144
in the Union market.
Source: based on data from the Union industry provided by the complainant
(117) The investigation showed that Union industry’s prices
remained higher (up to 23 %) than those of the
(112) Employment increased by 9 % in the period considered.
dumped imports from the USA over the period
More specifically, it grew by 8 % from 2008 to 2010 but
considered.
4.4.9. Profitability, cash flow, investments, return on investment and ability to raise capital
2008 2009 2010 IP
Net profit before tax (EUR) –
33
305
225 1
343
823 –
33
932
738 –
82
070
168
Index: 2008 = – 100 –
100
4 –
102 –
246

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L 49/22
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Official Journal of the European Union
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2008 2009 2010 IP
Profitability of Union sales (% of net
– 11,65 0,33 –
5,72 –
9,74
sales)
Index: 2008 = – 100 –
100
3 –
49 –
84
Cash flow (EUR) –
2
528
061 34
783
260 48
733
697 36
832
646
Index: 2008 = – 100 –
100 1
376 1
928 1
457
Cash flow in % of Union Sales to
– 0,9 8,7 8,2 4,4
unrelated parties
Index: 2008 = – 100 –
100 980 930 494
Investments (EUR)
330 441 830 86
279
988 38
710
739 23
018
175
Index: 2008 = 100 100 26 12
7
Return on investment (%) –
10
2 –
88 –
357
Index: 2008 = – 100 –
100 15 –
870 –
3
538
Source: Questionnaire replies of sampled Union producers
(118) Profitability of the Union industry was established both
(120) Cash flow was negative in 2008 and improved in 2009
in absolute amounts (net profit before tax) and by
and 2010. During the IP, however, cash flow started to
expressing the pre-tax net profit or loss as a percentage
decrease again, reflecting a worsening in the Union
of the turnover of the sales of the like product. The
industry’s ability to self-finance its activities.
profitability of the Union industry has been negative
during the period considered with the exception of
2009, when the companies in the sample managed to
break even.
(121) The evolution of profitability, cash flow and return on
investment during the period considered limited the
(119) Return on investments followed a similar pattern, staying
ability of the Union industry to invest in its activities
well behind the necessary returns to allow the Union
and undermined its development as clearly demonstrated
industry to survive.
by the 93 % decrease in investments over this period.
4.4.10. Wages
2008 2009 2010 IP
Wages (EUR) 45
066
253 57
253
228 68
711
959 76
030
008
Average labour costs per employee
75 691 81
233 88
638 99
646
(EUR)
Index: 2008 = 100 100 107 117 132
Source: Questionnaire replies of sampled Union producers
(122) Wages
increased
by
32
%
over
the
period
considered,
reflecting
the
productivity
gains
of
the
employees.
4.4.11. Inventories
2008 2009 2010 IP
Closing stocks (tonnes) 34
585 24
022 38
649 31
408
Index: 2008 = 100 100 69 112 91
Stock in relation to production (%) 8,3 3,5 3,8 2,5
Source: Questionnaire replies of sampled Union producers

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Union L
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(123) Stock levels slightly decreased during the period
Union industry, were also examined to ensure that
considered.
possible injury caused by these other factors was not
attributed to the dumped imports.
4.5. Conclusion on injury
(124) The investigation has shown that the surge in low-priced
5.2. Effect of the dumped imports
dumped imports in the Union market occurred in 2010
(130) As mentioned above, Union consumption grew substan
and in particular during the IP. In that period, certain
tially during the period considered, by 29,2 %. However,
injury indicators pertaining to the economic situation of
the dumped imports from the country concerned signifi
the Union industry improved, but the growth was not in
cantly increased in volume, i.e. from 1,9 % share of the
line with the increase in consumption during the period
Union market at the beginning of the period considered
considered and the improvements were thus not
to 15,7 % during the IP. This clearly exerted pressure on
sufficient to allow the Union industry to develop its
the Union industry, particularly from 2010 until the end
activities.
of the IP, when these imports more than doubled. From
2010, and in particular during the IP, large volumes of
low-priced imports from the USA were present on the
Union market and were undercutting the prices of the
(125) As is normal in a new and growing activity, certain
Union industry. This situation did not allow the industry
indicators, such as sales volume, production, and
to develop as expected during the IP.
capacity utilisation showed a positive trend during the
period considered. This is explained by the fact that new
Union producers entered the market in that period.
Nevertheless, the investigation showed that the situation
in the Union market, as from 2010 when the surge of
(131) Some parties have argued that the situation of the Union
low-priced imports occurred, did not allow Union
industry improved precisely from 2010 to the IP,
producers to reach a sufficient activity and price level
coinciding with the doubling of imports from the USA.
in order to develop and to sustain the important
As explained above in recitals 102 and 107, the fact that
investments made in the period considered.
many Union producers started to enter the market
during the period considered led to positive trends in
certain injury factors, such as production and sales
volume. However, the Union industry lost market share
(126) It was found that the low-priced imports constantly
in the IP compared to 2010 while at the same time the
undercut the prices of the Union industry. The level of
Union market experienced the highest increase of US
prices did not allow that industry to cover its costs and
dumped imports. The existence of price undercutting
realise the cash flow and profits, which are necessary to
and price pressure led to the deterioration of the
develop the activities.
general financial situation, in particular the profitability,
of the Union industry.
(127) Indeed, the injury indicators related to the financial
performance of the Union industry, such as profitability,
(132) The low-priced imports thus have played a significant
cash flow and return on investment deteriorated or
role in the material injury suffered by the Union
remained far below the normal level. This seriously
industry during the IP.
affected the Union industry’s ability to raise capital and
to further invest in its activities.
5.3. Effect of other factors
(128) In the light of the foregoing, it was considered that the
(133) The following known factors, other than the dumped
Union industry suffered material injury during the IP
imports, which might have injured the Union industry,
within the meaning of Article 3(5) of the basic Regu
were examined to ensure that any injury caused by those
lation.
factors was not attributed to the dumped imports: the
imports from other countries, the export performance of
the Union industry, the impact of the economic crisis
and other factors such as the raw material prices fluctu
5. CAUSATION
ations, development of demand and alleged internal
5.1. Introduction
problems of companies in the Union industry.
(129) In accordance with Article 3(5) and (6) of the basic anti-
dumping Regulation, it was examined whether the
dumped imports of the product concerned originating
5.3.1. Imports from other countries (Brazil)
in the country concerned caused injury to the Union
industry; Known factors other than the dumped
(134) According to the information available, apart from Brazil,
imports, which could at the same time be injuring the
there was no other country exporting the product

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Official Journal of the European Union
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concerned to the Union in significant quantities in the
over 330 000 tonnes. It is thus considered that the
period considered. In terms of prices, Brazilian import
presence of the Brazilian bioethanol in the Union
prices have remained well below those of the Union
market, in particular during the IP, cannot be such as
producers’. However, imports from Brazil, clearly
to break the causal link established between the dumped
showed a decreasing trend in volume (– 81 %), and
imports from the USA and the injurious situation of the
market share (– 25,8 %) during the period considered.
Union industry in that period.
In consequence, since the import volumes were
reduced to such a low level during the IP, they cannot
be considered to have broken the causal link between the
low-priced imports from the USA and the injury of the
5.3.2. Export performance of the Union industry
Union industry during the IP.
2008 2009 2010 IP
Sales volume for
26 263 41
023 53
085 59
633
export (tonnes)
2008 2009 2010 IP
Source: Complaint and questionnaire replies of sampled Union producers
Volume of
1 022 980 884
020 396
249 195
342
imports origi
nating from
(137) The investigation showed that small volumes of bioe
Brazil (tonnes)
thanol were exported by the Union industry during the
IP at prices largely above those practiced on the Union
Index: 2008 =
100 86 39 19
market. This has led to the conclusion that the export
100
performance is not a factor that broke the causal link
between the injury suffered by the Union industry and
Market share of
30,3 22,8 9,7 4,5
the dumped imports from the country concerned.
imports from
Brazil (%)
CIF average unit
560,8 496,2 580,8 622,4
5.3.3. The impact of the economic crisis
price
(EUR/tonne of
(138) The economic crisis was not found to have had a
imports)
negative impact on the Union industry. Consumption
of bioethanol in the Union experienced its biggest
Index: 2008 =
100 88 104 111
100
increase in 2009, the year generally considered to be
the worst year of the economic crisis. In the same
Source: Eurostat, the UK Renewable Fuels Agency, customs import database
period, production and sales by Union producers also
provided by the Netherlands, Sweden and Finland and the complaint.
increased.
(135) Parties claimed that imports from Brazil remained above
(139) Based on the above, it is considered that the economic
the de minimis level throughout the period considered,
crisis did not break the causal link between the low-
and that they were made at dumped prices on the
priced imports from the country concerned and the
Union market. They further argued that imports from
material injury suffered by the Union industry.
the USA, only replaced the market share left by the
Brazilian imports. The imports from the USA can
therefore allegedly not be considered to be the cause of
the material injury of the Union industry.
5.3.4. Other factors
(140) Parties have also mentioned other factors that could have
broken the causal link such as the fluctuation of the raw
material prices, the development of demand which was
lower than expected, a regulatory framework in the
(136) As explained above, Brazilian imports decreased signifi
Union that allegedly plays against Union producers and
cantly in the period considered. Their market share
certain alleged internal problems of Union producers.
decreased from 30,3 % to 4,5 % at a time when
consumption significantly increased. Given the price
level practiced by Brazilian exporters in the Union
market, it cannot be excluded that the presence of
(141) Regarding the fluctuations in the raw material prices,
Brazilian bioethanol contributed to some extent to the
both prices of corn and wheat were found to be
injury of the Union industry. However, it is considered
volatile during the period considered. The investigation
that these imports were reduced to such a level during
showed that most producers however hedge this risk
the IP that they cannot be regarded as a major cause of
through a specific price setting mechanism with their
that injury. Indeed, in period between 2010 and the IP,
suppliers or through the financial markets. Hence even
whilst imports from Brazil decrease by about 200 000
if prices of feedstock did differ in particular from 2008
tonnes, the dumped imports from the USA increased by
until 2010, when the price for corn was lower than

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Union L
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the price of wheat, feedstock prices in the second half of
change at any time, and that this argument therefore
the IP were more or less the same. This indicates that any
cannot put into question the presence of injury during
price difference is reduced to a minimum and is not of a
the investigation period.
lasting nature.
5.4. Conclusion on causation
(142) Some parties have claimed that the implementation of
(146) The above analysis demonstrated that there was a
the RED in Member States has been too slow and that
substantial increase in the volume and market share of
consumption lagged behind the targets established by the
the low-priced imports originating in the country
mentioned Directive. But, even if initial targets were not
concerned over the period considered. In addition, it
fully met within the period considered the fact that
was found that the prices of these imports were below
consumption has grown significantly, namely by
the prices charged by the Union industry on the Union
29,2 %, in that period is a positive factor that cannot
market.
be ignored in the analysis. In any event, the alleged
slow implementation of the RED cannot justify the
presence of high volumes of low-priced dumped
imports in the Union market undercutting the prices of
the Union industry and causing injury to that industry.
(147) This increase in volume and market share of the low-
Hence, the claim is rejected.
priced imports from the country concerned coincided
with an overall and continuous increase of consumption
in the Union and also with negative results of the Union
industry during the period considered. The exporters
from the country concerned managed to increase their
(143) Parties have also argued that the Union industry alone
market share by systematically undercutting Union
could not meet Union demand as a result of regulatory
industry’s prices. At the same time, the Union industry
uncertainty and that the system of certification is very
was not able to reach sustained positive levels of profit
slow and thus undermine the benefits for the certified
ability despite its increase in activity.
Union producers. Some parties have finally argued that
the fact that many Union producers suffered internal
problems during the period considered explains any
injury they suffered. These claims were however not
(148) The examination of the other known factors which could
substantiated and the investigation did not confirm that
have caused injury to the Union industry revealed that
these claims were founded. Nevertheless, it should be
these factors do not appear to be such as to break the
pointed out that the investigation showed that any
causal link established between the dumped imports
alleged low level of the Union production was mainly
from the country concerned and the injury suffered by
justified by a low level of sales prices in the Union
the Union industry.
market which was largely affected by the surge of low-
priced US dumped imports undercutting the Union
producers’ prices, in particular during the IP. It
appeared that EU producers had no other choice than
stopping production as prices did not even allow them
(149) Based on the above analysis, which has properly distin
to cover the cost of the raw material in particular during
guished and separated the effects of all known factors on
the IP. Hence, the above unsubstantiated claims are not
the situation of the Union industry from the injurious
such as to break the causal link between the dumped
effects of the dumped imports, it was concluded that the
imports and the injurious situation of the Union
dumped imports from the USA have caused material
industry during the IP.
injury to the Union industry within the meaning of
Article 3(5) of the basic Regulation.
(144) It is thus concluded that all the above factors could not
break the causal link between the injury suffered by the
6. UNION INTEREST
Union industry and the dumped imports from the USA.
6.1. Preliminary remark
(150) In accordance with Article 21 of the basic Regulation, it
was examined whether, despite the conclusion on injury
caused by the dumped imports from the country
(145) Parties finally mention the fact that during the IP, a
concerned, compelling reasons existed for concluding
considerable number of imports were declared under
that it was not in the Union interest to adopt anti-
CN heading 3824, attracting a low customs duty. After
dumping measures in this particular case. The analysis
the end of the IP, the level of the respective customs duty
of the Union interest was based on an appreciation of all
was raised. They consider that the injury was caused by
the various interests involved, including those of the
the low customs duty, and not by dumping. In this
Union industry, importers and users of the product
regard, it suffices to say that customs duties may
concerned.

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6.2. Interest of the Union industry
be passed on to their customers. They also made clear
that they have sufficient choice in the sources of supply
(151) The investigation has shown that the Union industry
and that they do not depend on US imports.
suffered material injury caused by the dumped imports
from the USA. In the absence of measures to correct the
trade distorting effects of these imports, a further deterio
(160) Parties have claimed that there is not sufficient capacity
ration in the Union industry’s economic situation appears
in the Union to meet total demand and that the Union
to be very likely.
will need imports to secure its bioethanol needs. The
verified capacity figures show that there was idle
(152) It is expected that the imposition of anti-dumping duties
capacity in the Union given in particular the low level
will restore effective trade conditions on the Union
of sale prices. In consequence, the Union producers
market, allowing the Union industry’s prices to reflect
would be able to increase their production to fulfil the
its cost of production. It can be expected that the
growing demand particularly when trade distortions are
imposition of measures would also enable the Union
removed from the market. Furthermore, it is expected
industry to increase sales volume and thus gain the
that new plants will be constructed and will come into
market share lost due to the presence of dumped
operation in the near future, reducing any alleged risk of
imports. This in turn will have a further positive
shortage in the Union.
impact on its financial situation and profitability.
(161) In view of the above, it was concluded that the effect of
(153) It was therefore concluded that the imposition of anti-
anti-dumping measures against imports of the bioethanol
dumping measures on imports of the product concerned
from the USA would not have a significant negative
originating in the USA would not be against the interest
impact on the users in the Union.
of the Union industry.
6.5. Conclusion on Union interest
6.3. Interest of importers
(162) In view of the above, it was concluded that overall, based
(154) Two companies sent responses to the questionnaire
on the information available concerning the Union
intended for unrelated importers in the Union. Verifi
interest, there are no compelling reasons against the
cation visits took place at the premises of these
imposition of anti-dumping measures on imports of
cooperating importers. For both companies visited, the
bioethanol originating in the USA.
bioethanol business constitutes only a small part of their
total turnover (less than 5 %). In addition, they both
indicated that they would be able to pass on any price
increase to their customers, the users.
7.

DEFINITIVE ANTI-DUMPING MEASURES
7.1. Injury elimination level
(155) Based on the information available, it was concluded that
(163) In view of the conclusions reached with regard to
the imposition of measures would not have a significant
dumping, injury, causation and Union interest, definitive
negative impact on the importers.
anti-dumping measures should be imposed in order to
prevent further injury being caused to the Union industry
6.4. Interest of users
by the dumped imports.
(156) Four companies sent responses to the questionnaire
intended for users in the Union. Verification visits took
(164) For the purpose of determining the level of these
place at the premises of one of them.
measures, account was taken of the dumping margins
and the amount of duty necessary to eliminate the
injury sustained by the Union industry, without
(157) For the company visited, the bioethanol business
exceeding the dumping margins found.
represents a small part of its turnover, less than 5 %.
The company has made an impact assessment
considering a blend of E5 and calculated that a duty of
(165) When calculating the amount of duty necessary to
100 EUR/m 3 would result in a price increase of
remove the effects of the injurious dumping, it was
0,005 EUR/litre at the pump.
considered that any measures should allow the Union
industry to cover its costs of production and to obtain
(158) As concerns the other three users, on the basis of data
a profit before tax that could be reasonably achieved by
contained in their questionnaire replies, it is clear that the
an industry of this type in the sector under normal
impact would be limited as well. For one company, the
conditions of competition, i.e. in the absence of
volumes purchased from the country concerned are quite
dumped imports, on sales of the like product in the
limited and the imposition of an antidumping duty
Union.
would only lead to a minimal impact on its profitability.
(166) In this case, given the observations made in particular in
(159) The other two cooperating users are related and have
recitals 102 and 103 above, it is considered that the
declared that any imposition of antidumping duties can
target profit for the Union industry, should be based on

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the profit achieved when the imports from the USA were
wide duty applicable to all companies is applicable to
negligible, i.e. the average pre-tax profit margin of one of
imports of the product concerned originating in the
the sampled Union producers in 2008 and 2009, a
USA.
producer which was not in a start-up phase at that
time. It is thus considered that a margin of 6,8 % of
turnover is reasonable and could be regarded as an
appropriate minimum which the Union industry could
(173) While it was initially envisaged limiting the duration of
have expected to obtain under normal trade conditions
measures to 3 years due to the perceived dynamic
in the absence of injurious dumping during the IP.
market developments regarding the product concerned
this issue was reassessed following the comments
received from interested parties. The complainants in
(167) On this basis, a non-injurious price was calculated for the
particular claimed that it would be too early to assume
Union industry for the like product. The non-injurious
at this stage a major change in the market patterns as the
price was obtained by adjusting the sales prices of the
shift to new generation bioethanol may very likely take a
sampled Union producers by the actual profit/loss made
considerable amount of time and should not be taken
during the IP and by adding the above mentioned profit
into account in the current proposal. Likewise, it would
margin.
also be premature to assume what the outcome and the
impact of some of the regulatory proposals currently
discussed would be for all the operators in the market.
(168) The necessary price increase was then determined on the
After examining these arguments it was considered that
basis of a comparison of the weighted average import
it was not appropriate to depart from the normal period
price of the cooperating exporting producers in the USA,
of validity of measures as provided in Article 11(2) of the
as established for the price undercutting calculations,
basic Regulation. This is without prejudice to the possi
with the non-injurious price of the products sold by
bility for any interested party to ask for a review should
the Union industry on the Union market during the IP.
the circumstances so warrant pursuant to Article 11(3).
Any difference resulting from this comparison was then
expressed as a percentage of the average total CIF import
value.
8. REGISTRATION
7.2. Form and level of the duties
(174) The Commission has received requests from the
complainant for registration of imports of bioethanol
(169) In the light of the foregoing, it is considered that, in
accordance with Article 9(4) of the basic Regulation,
originating in the USA. According to Article 14(6) of
definitive anti-dumping measures should be imposed
the basic Regulation, the Commission may, after consul
on imports of the product concerned at the level of
tation of the Advisory Committee, direct the customs
the lower of the dumping and the injury margins, in
authorities to take the appropriate steps to register
accordance with the lesser duty rule. Accordingly, all
imports, so that measures may subsequently be applied
duty rates should be set at the level of the dumping
against those imports from the date of such registration.
margins found.
Imports may be made subject to registration following a

request from the Union industry which contains
sufficient evidence to justify such action. The
(170) The proposed definitive anti-dumping duties are the
complainant argued that, since registration was
following:
imposed in the parallel anti-subsidy proceeding on
imports of bioethanol originating in the USA ( 1 ), such
conditions were automatically met.
Dumping
margin
Injury margin Definitive
duty
Country-wide
9,5 31,1 9,5
(175) However, it should be underlined that the registration in
dumping
the parallel anti-subsidy proceeding has been made in a
margin (%)
completely different set of circumstances. As indicated in
recital 10 to the Regulation (EU) No 771/2012, despite
positive findings of countervailing subsidisation and
(171) In view of the fact that the anti-dumping duty will also
material injury caused thereby to the Union industry
apply to blends containing by volume more than 10 %
during the investigation period, the Commission
(v/v) of bioethanol, in proportion to their bioethanol
decided not to adopt provisional countervailing duties
content, it is considered appropriate for the effective
because it was provisionally found that the main
implementation of the measure by the customs auth
subsidy scheme in force during the investigation period
orities of the Member States to determine the duty as a
had ceased, in the sense that it no longer conferred a
fixed amount on the basis of the pure bioethanol
benefit at the time provisional measures would have been
content.
imposed. However, there was evidence that the USA
might reinstate the main subsidy scheme found to be
countervailable in the coming months with retroactive
(172) The anti-dumping duty rate specified in this Regulation
effects. In that event, the Commission considered that
was established on the basis of the findings of the
present investigation. Therefore, they reflect the
( 1 ) Commission Regulation (EU) No 771/2012 (OJ L 229, 24.8.2012,
situation found during that investigation. This country-
p. 20).

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it would have been entitled to adopt (and eventually
2. The
rate
of
the
definitive
anti-dumping
duty
applicable
to
collect) provisional countervailing duties in the present
the product described in paragraph 1 shall be EUR 62,3 per
investigation. Thus, in order to preserve the European
tonne net. The anti-dumping duty shall be applicable in
Union’s rights under these special circumstances, the
proportion, by weight, of the total content of pure ethyl
Commission decided to direct the Custom authorities
alcohol produced from agricultural products (as listed in
to register imports. This specific set of circumstances
Annex I to the Treaty on the Functioning of the European
does not apply in the current AD proceeding,
Union) (bioethanol content).
HAS ADOPTED THIS REGULATION:
3. Products
described
in
paragraph
1
shall
be
exempted
from
the definitive anti-dumping duty if they are for other uses than
Article 1
as use for fuel. Exemption shall be subject to the conditions laid
down in the relevant provisions of the European Union with a
1. A
definitive
anti-dumping
duty
is
hereby
imposed
on view to customs control of the use of such goods (see Articles
imports of bioethanol, referred to as ‘fuel ethanol’, i.e. ethyl
291 to 300 of Commission Regulation (EEC) No 2454/93).
alcohol produced from agricultural products (as listed in
Annex I to the Treaty on the Functioning of the European
Union), denatured or undenatured, excluding products with a
4. In
cases
where
goods
have
been
damaged
before
entry
water content of more than 0,3 % (m/m) measured according to
into free circulation and, therefore, the price actually paid or
the standard EN 15376, but including ethyl alcohol produced
payable is apportioned for the determination of the customs
from agricultural products (as listed in Annex I to the Treaty on
value pursuant to Article 145 of Regulation (EEC) No
the Functioning of the European Union) contained in blends
2454/93 the amount of anti-dumping duty, calculated on the
with gasoline with an ethyl alcohol content of more than
amounts set above, shall be reduced by a percentage which
10 % (v/v) intended for fuel uses currently falling within CN
corresponds to the apportioning of the price actually paid or
codes
ex 2207 10 00,
ex 2207 20 00,
ex 2208 90 99,
payable.
ex 2710 12 21, ex 2710 12 25, ex 2710 12 31, ex 2710 12 41,
ex 2710 12 45, ex 2710 12 49, ex 2710 12 51, ex 2710 12 59,
ex 2710 12 70, ex 2710 12 90, ex 3814 00 10, ex 3814 00 90,
ex 3820 00 00
and
ex 3824 90 97
(TARIC
codes
5. Unless
otherwise
specified,
the
provisions
in
force
2207 10 00 12,
2207 20 00 12,
2208 90 99 12,
concerning customs duties shall apply.
2710 12 21 11,
2710 12 25 92,
2710 12 31 11,
2710 12 41 11,
2710 12 45 11,
2710 12 49 11,
2710 12 51 11,
2710 12 59 11,
2710 12 70 11,
Article 2
2710 12 90 11,
3814 00 10 11,
3814 00 90 71,
3820 00 00 11 and 3824 90 97 67) and originating in the
This Regulation shall enter into force on the day following that
United States of America.
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, 18 February 2013.
For the Council
The President
S. SHERLOCK

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