HTML PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN"L 315/2
EN
Official Journal of the European Union
26.11.2013
REGULATIONS
COUNCIL IMPLEMENTING REGULATION (EU) No 1194/2013
of 19 November 2013
imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on
imports of biodiesel originating in Argentina and Indonesia
THE COUNCIL OF THE EUROPEAN UNION,
period’ or ‘IP’). The examination of trends relevant for the
assessment of injury covered the period from 1 January
2009 to the end of the IP (‘the period considered’).
Having regard to the Treaty on the Functioning of the European
Union,
2. Subsequent procedure
(4)
Subsequent to the disclosure of the essential facts and
Having regard to Council Regulation (EC) No 1225/2009 of
considerations on the basis of which it was decided to
30 November 2009 on protection against dumped imports
impose a provisional anti-dumping duty (‘provisional
from countries not members of the European Community ( 1 )
disclosure’), several interested parties made written
(‘the basic Regulation’), and in particular Article 9 thereof,
submissions making known their views on the
provisional findings. The parties who so requested were
granted an opportunity to be heard.
Having regard to the proposal submitted by the European
Commission after having consulted the Advisory Committee,
(5) The
Commission
continued
to
seek
and
verify
all
information it deemed necessary for its definitive
findings. The oral and written comments submitted by
Whereas:
the interested parties were considered and, where appro
priate, the provisional findings were modified accord
ingly.
A. PROCEDURE
1. Provisional measures
(6) Subsequently,
all
parties
were
informed
of
the
essential
(1) On
27
May
2013,
the
European
Commission
(‘the
facts and considerations on the basis of which it was
Commission’) decided to impose a provisional anti-
intended to recommend the imposition of a definitive
dumping duty on imports of biodiesel originating in
anti-dumping duty on imports of biodiesel originating
Argentina and Indonesia (‘the countries concerned’) by
in Argentina and Indonesia and the definitive collection
Regulation (EU) No 490/2013 ( 2 ) (‘the provisional Regu
of the amounts secured by way of provisional duty (‘the
lation’).
definitive disclosure’). All parties were granted a period
within which they could make comments on the final
disclosure.
(2) The
proceeding
was
initiated
on
29
August
2012
( 3 )
following a complaint lodged on behalf of Union
producers (‘the complainants’), representing more than
60 % of the total Union production of biodiesel.
(7) The
comments
submitted
by
the
interested
parties
were
considered and taken into account where appropriate.
(3) As
set
out
in
recital
5
of
the
provisional
Regulation,
the
investigation of dumping and injury covered the period
B. SAMPLING
from 1 July 2011 to 30 June 2012 (‘the investigation
(8)
In the absence of comments concerning the sampling of
exporting producers in Argentina and Indonesia the
( 1 ) OJ L 343, 22.12.2009, p. 51.
( 2 ) OJ L 141, 28.5.2013, p. 6.
provisional findings in recitals 10 to 14 and 16 to 20
( 3 ) OJ C 260, 29.8.2012, p. 8.
of the provisional Regulation are hereby confirmed.

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EN
26.11.2013 Official
Journal
of
the
European
Union
L
315/3
(9) One
interested
party
requested
further
information
on
pure form or as included in a blend originating in
the representativity of the sample of Union producers,
Argentina and Indonesia, currently falling within CN
both at the stage of provisional selection as set out in
codes ex 1516 20 98, ex 1518 00 91, ex 1518 00 95,
recital 23 of the provisional Regulation and at the stage
ex 1518 00 99,
ex 2710 19 43,
ex 2710 19 46,
of final selection as set out in recital 83 of the
ex 2710 19 47, 2710 20 11, 2710 20 15, 2710 20 17,
provisional Regulation.
ex 3824 90 97, 3826 00 10 and ex 3826 00 90 (‘the
product concerned’, commonly referred to as ‘biodiesel’).
(10) The
sample
of
Union
producers
provisionally
selected
consisted of 32,5 % of the production of biodiesel in
2. Claims
the Union during the IP. Following the changes
explained in recital 24 of the provisional Regulation
(17) One Indonesian exporting producer claimed that
the final sample consisted of eight companies covering
contrary to what was stated in recital 34 of the
27 % of Union production. The sample was therefore
provisional Regulation, palm methyl ester (PME)
considered to be representative of the Union industry.
produced in Indonesia was not a like product to
rapeseed methyl ester (RME) and other biodiesels
produced in the Union, or soybean methyl ester (SME)
produced in Argentina because of the much higher CFPP
(11) One
interested
party
claimed
that
two
Union
producers
of PME which means that it must be blended before use
that were sampled should be removed from the sample
in the Union.
due to their relationship with Argentine exporting
producers. The alleged relationship was examined prior
to the imposition of provisional measures and the
Commission’s conclusions already published in recital
(18) This claim is rejected. PME produced in Indonesia is in
82 of the provisional Regulation.
competition with biodiesel produced in the Union, which
is not just RME but also biodiesel made from palm oil
and other feedstocks. PME can be used throughout the
Union throughout the year, by blending with other
(12) All of the alleged links between Argentine exporting
biodiesels before use, in the same way as RME and
producers and the two sampled companies referred to
SME. PME is therefore interchangeable with biodiesel
above were examined again, and no direct link between
made in the Union and therefore is a like product.
them was found such that either Union producer should
be removed from the sample. The sample therefore
remained unchanged.
(19) Recital
35
of
the
provisional
Regulation
states
the
claim
of one Indonesian producer that fractionated methyl
esters should be excluded from the product scope of
(13) Another
interested
party
claimed
that
the
Commission’s
this proceeding. The same producer maintained this
procedure for selecting a sample of Union producers was
request in its comments on provisional disclosure
flawed, as the Commission proposed a sample prior to
restating their argument from prior to provisional
initiation of the investigation.
disclosure.
(14) That
claim
is
rejected.
The
Commission
did
not
select
the
final sample until after the initiation of the investigation
(20) The
Union
industry
however
disputed
this
claim
stating
and entirely in line with the provisions of the basic
that fractionated methyl esters were biodiesel and should
Regulation.
remain within the product scope.

(15) In
the
absence
of
any
other
claim
or
comments,
the
(21) Following
comments
received
after
provisional
stage,
the
content of recitals 22 to 25 of the provisional Regulation
decision of the Commission in recital 36 of the
is confirmed.
provisional Regulation is confirmed. Regardless of the
fact that various fatty acid methyl esters have different
Chemical Abstracts Service (‘CAS’) numbers; that different
processes are used to produce those esters; and that they
C. PRODUCT CONCERNED AND LIKE PRODUCT
have possible different uses, fractionated methyl esters are
still fatty acid methyl esters and can still be used for fuel
1. Introduction
use. Given the difficulties of distinguishing one fatty acid
methyl ester from another without chemical analysis at
(16) As
set
out
in
recital
29
of
the
provisional
Regulation,
the
the point of importation, and the possibility of circum
product concerned as provisionally defined is fatty-acid
vention of the duties as a result, with PME biodiesel
mono-alkyl esters and/or paraffinic gasoils obtained from
being declared as fractionated methyl ester made from
synthesis and/or hydro-treatment, of non-fossil origin, in
palm oil, the claim remains rejected.

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L 315/4
EN
Official Journal of the European Union
26.11.2013
(22) In recital 37 of the provisional Regulation it is
D. DUMPING
mentioned that one European importer of palm kernel
oil fatty acid methyl ester (‘PKE’) requested that imports
1. Introductory remarks
of this product be subject to End Use Relief, or otherwise
be excluded from the product scope of this proceeding.
(28) Recitals 44 and 64 of the provisional Regulation
explained that both the Argentine and the Indonesian
biodiesel markets are heavily regulated by the State and
thus domestic sales were not considered as being made
in the ordinary course of trade. As a consequence, the
normal value of the like product had to be constructed
(23) The Union industry commented after provisional
pursuant to Article 2(3) and (6) of the basic Regulation.
disclosure on the use of end use relief for imports of
That finding was not contested by any interested party
PKE and the possibility of circumvention of the duties
and is therefore confirmed.
proposed. They opposed the Commission’s authorisation
to use such a scheme for relief of anti-dumping duties
due to the fungible nature of biodiesel; biodiesel declared
for non-fuel use could be used for fuel as it has the same
physical properties. PKE can be used for fuel use; the
unsaturated fatty alcohol that is made out of PKE can
also be further processed into biodiesel; and the control
(29) For both Argentina and Indonesia the constructed
that Customs can apply on imports under End Use Relief
normal value at provisional stage was calculated on the
is limited and the economic burden resulting from the
basis of the companies’ own actual (and recorded)
use of this scheme remains significant.
production costs during the IP, selling, general and
administrative expenses (‘SG&A’) incurred and a
reasonable profit margin. Recitals 45 and 63 of the
provisional Regulation noted in particular that the
Commission would further examine the claim that the
Differential Export Tax systems (‘DET’) in Argentina and
(24) Following
consultations
on
this
issue
and
in
view
of
the
Indonesia distort raw material prices and that, therefore,
fact that biodiesel declared as for non-fuel use has the
the recorded costs of production did not reasonably
same physical properties as biodiesel for fuel use, it is not
reflect the costs associated with the production of the
appropriate to allow End Use Relief for imports of PKE in
product concerned.
the present case.
(25) One
German
importer
repeated
their
request
for
product
(30) The
further
investigation
has
demonstrated
that
indeed
exclusion and/or End Use Relief for a particular fatty acid
the DET systems depressed the domestic prices of the
methyl ester manufactured from palm kernel oil (PKE)
main raw material input in both Argentina and
which was destined for use other than fuel in the EU.
Indonesia to an artificially low level, as explained below
The comments made restated their position which had
in recitals 35 onwards for Argentina and recital 66 for
been rejected at provisional stage and no new evidence
Indonesia and, as a consequence, affect the costs of the
was provided that would change the conclusion that End
biodiesel producers in both countries concerned. In view
Use Relief should not be granted and that PKE should
of this finding it is considered appropriate that this cost
remain within the product scope.
distortion of the main raw materials should be taken into
account in establishing the normal values in both coun
tries, given the particular market situation prevailing both
in Argentina and Indonesia.
(26) One
Indonesian
exporting
producer
also
referred
to
their
claim for End Use Relief for fractionated methyl esters
and requested End Use Relief for these imports for the
manufacture of saturated fatty alcohol. As set out above,
all requests for End Use Relief have been denied and the
(31) The
General
Court
has
confirmed
( 1 ) that when the prices
arguments set out by this interested party did not change
of raw materials are regulated in such a way that they are
that conclusion.
artificially low on the domestic market, it may be
presumed that the cost of producing the product
concerned is affected by a distortion. The General
Court considered that under such circumstances, the
Union institutions are entitled to conclude that one of
3. Conclusion
the items in the records cannot be regarded as reasonable
and that, consequently, such item can be adjusted.
(27) In
the
absence
of
other
comments
regarding
the
product
concerned and the like product, recitals 29 to 39 of the
( 1 ) See for instance judgment T-235/08 of 7 February 2013 (Acron
provisional Regulation are hereby confirmed.
OAO and Dorogobuzh OAO against the Council).

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EN
26.11.2013 Official
Journal
of
the
European
Union
L
315/5
(32) The
General
Court
also
concluded
that
it
is
apparent
(37) The
domestic
prices
follow
the
trends
of
the
international
from the first subparagraph of Article 2(5) of the basic
prices. The investigation established that the difference
Regulation that the records of the party concerned do
between the international and the domestic price of
not serve as a basis for calculating normal value if the
soya beans and soya bean oil is the export tax on the
costs associated with the production of the product
product and other expenses incurred for exporting it. The
under investigation are not reasonably reflected in
domestic reference prices of soya beans and soya bean oil
those records. In that case, the second sentence of the
are also published by the Argentine Ministry of Agri
first subparagraph provides that the costs are to be
culture as the ‘FAS theoretical price’ ( 3 ). The producers
adjusted or established on the basis of sources of
of soya beans and soya bean oil therefore obtain the
information other than those records. That information
same net price no matter whether they sell for export
may be taken from the costs incurred by other producers
or domestically.
or exporters or, when that information is not available or
cannot be used, any other reasonable source of
information, including information from other represen
tative markets.
(38) In conclusion, the domestic prices of the main raw
material used by biodiesel producers in Argentina were
found to be artificially lower than the international prices
(33) In the provisional calculations, the actual domestic
due to the distortion created by the Argentine export tax
purchase price of soya beans and the actual booked
system and, consequently, the costs of the main raw
cost for crude palm oil was used when computing the
material were not reasonably reflected in the records
costs of production for respectively Argentine and
kept by the Argentinean producers under investigation
Indonesian producing exporters.
in the meaning of Article 2(5) of the basic Regulation
as interpreted by the General Court as explained above.
(34) Given
that
certain
costs
of
production,
and
namely
the
costs of the main raw material and (soybean oil and soya
beans in Argentina and crude palm oil in Indonesia),
were found to be distorted, they were established on
(39) The
Commission
has
therefore
decided
to
revise
recital
the basis of reference prices published by the relevant
63 of the provisional Regulation and disregard the actual
authorities of the countries concerned. Those prices
costs of soya beans (the main raw material purchased
reflect the level of international prices.
and used in the production of biodiesel) as recorded by
the companies concerned in their accounts and to replace
them with the price at which those companies would
have purchased the soya beans in the absence of such
2. Argentina
a distortion.
2.1. Normal Value
(35) As mentioned above, the Commission has now reached
the conclusion that the DET system in Argentina distorts
the costs of production for biodiesel producers in that
(40) In order
to establish the cost at which companies
country. The investigation established that during the IP
concerned would have purchased the soya beans in the
export taxes on raw material (35 % on soya beans and
absence of such a distortion, the Commission took the
32 % on soybean oil) were significantly higher than the
average of the reference prices of soya beans published
export taxes on the finished product (nominal rate of
by the Argentine Ministry of Agriculture for export FOB
20 % on biodiesel, with an effective rate of 14,58 %
Argentina during the IP ( 4 ).
taking into account a tax rebate). As a matter of fact,
the difference between the export tax on soya beans and
biodiesel was 20,42 percentage points, and between soya
bean oil and biodiesel was 17,42 percentage points
(41) The association of Argentine exporting producers
during the IP.
(CARBIO) and the Argentine authorities claimed that an
adjustment to the costs borne by the companies under
Article 2(5) of the basic Regulation is only possible when
(36) To
determine
the
level
of
the
export
tax
for
soya
beans
the records, and not the costs incurred by the companies,
and soya bean oil, the Argentine Ministry of Agriculture,
do not reasonably reflect the costs associated with the
Livestock and Fisheries publishes on a daily basis the FOB
production and sale of the product concerned. They
price for soya beans and soya bean oil — ‘the reference
stated that in practice the Commission added the
price’ ( 1 ). This reference price reflects the level of inter
export taxes to the price paid by the companies when
national prices ( 2 ) and is used to calculate the amount of
purchasing soya beans, thus including in the costs of
the export tax to be paid to the tax authorities.
productions an item which is not associated with the
production or sale of the product concerned. They
( 1 ) Resolution 331/2001 of the Ministry of Agriculture, Livestock and
Fisheries.
( 3 ) The FAS theoretical value is calculated by discounting from the
( 2 ) The main market which is considered to determine the level of the
official FOB value all costs included in the export process.
international price of soya beans and soya bean oil is Chicago Board
( 4 ) http://64.76.123.202/site/agricultura/precios_fob_-_exportaciones/
of Trade.
index.php

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L 315/6
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Official Journal of the European Union
26.11.2013
added that the General Court’s ruling ‘Acron’ quoted in
reflected in the records of the companies concerned as
the disclosure document ( 1 ) is based on a wrong inter
they are artificially low due to the distortion caused by
pretation of Article 2.2.1.1 of the WTO Anti-Dumping
the Argentine DET system. This holds true regardless of
Agreement (ADA), it is currently being appealed before
whether or not DET systems in general may be as such
the Court of Justice and in any event the factual consider
contrary to the WTO Agreement. Furthermore, the
ations are different from those in the present case, since
Commission considers that the General Court based
raw material prices in Argentina are not ‘regulated’ as it
itself on a correct interpretation of the ADA. In fact, in
is the gas price in Russia and are not distorted but
China — Broilers ( 2 ), the panel found that although
determined freely without any State intervention and
Article 2.2.1.1 of the ADA sets up a presumption that
therefore there is not a particular market situation in
the books and records of the respondent shall normally
Argentina that would allow the Commission to apply
be used to calculate the cost of production, the investi
Article 2(5) of the basic Regulation. They declared that
gating authority retains the right to decline to use such
the DET system in Argentina is not inconsistent with any
books if it determines that they are either (i) inconsistent
trade rules. In addition, CARBIO claimed that, since
with GAAP or, (ii) do not reasonably reflect the costs
export taxes were not taken into account when estab
associated with the production and sale of the product
lishing the export price, the Commission did not make a
under consideration. However, when making such a
fair comparison between constructed normal value
determination to derogate from the norm, the investi
(which takes into account export taxes) and export
gating authority must set forth its reasons for doing so.
price (which does not take into account export taxes).
Consistent with this interpretation, in view of the
distortion created by the DET system, which creates a
particular market situation, the Commission replaced
the costs recorded by the companies concerned for the
purchase of the main raw material in Argentina with the
price that would have been paid in the absence of the
established distortion. The fact that from a pure
numerical point of view the result is similar does not
mean that the methodology applied by the Commission
Moreover, they claimed that by referring to the inter
consisted in simply adding the export taxes to the costs
national prices of soya beans as established in the
of the raw material. International prices of commodities
Chicago Board of Trade (CBOT) when constructing
are set based on supply and demand and there is no
normal value, but disregarding the gains or losses
evidence that the DET system in Argentina affects the
linked to the hedging activities at the CBOT when estab
CBOT prices. Therefore, all claims and allegations that
lishing the export price (see below), again the
by using an international price the Commission did not
Commission did not make a fair comparison between
make a fair comparison between normal value and
normal value and export price. Furthermore CARBIO
export price are unfounded. The same applies to the
claimed that by mere replacing the costs recorded by
claim that the Commission did not take into account
the companies under investigation with an international
the natural competitive advantage of the Argentine
price, the Commission did not take into account the
producers, because the replacement of the costs
natural competitive advantage of the Argentine
recorded by the companies was due to the abnormally
producers. Finally, CARBIO complained that the
low price of raw material in the domestic market, rather
Commission did not take into account the fact that in
than to a comparative advantage.
the absence of the DET in Argentina, the CBOT prices of
soya beans would have been much lower.
(43) In recital
45 of the provisional Regulation, it was
(42) These
claims
must
be
rejected.
Even
if
the
facts
of
the
explained that since domestic sales were not considered
‘Acron’ case are not the same as the facts in the present
as being made in the ordinary course of trade, normal
case, the General Court has nevertheless established the
value had to be constructed using a reasonable amount
principle of law that if the costs associated with the
for profit of 15 % pursuant to Article 2(6)(c) of the basic
production of the product under investigation are not
Regulation. Some exporting producers claimed that the
reasonably reflected in the records of the companies,
percentage used by the Commission as a reasonable
they do not serve as a basis for calculating normal
profit (15 %) when constructing normal value was
value. In the ‘Acron’ case the costs were not reasonably
unrealistically high and a radical change in the estab
reflected in the records of the company concerned
lished practice in a number of other investigations in
because the gas price was regulated. In the present case
similar commodity-related markets (i.e. where the profit
it was established that the costs associated with the
used was about 5 %).
production of the product concerned are not reasonably
( 2 ) Panel Report, China — Anti-Dumping and Countervailing Duty
( 1 ) Judgment T-235/08 of 7 February 2013 (Acron OAO and Doro
Measures on Broiler Products from the United States (WT/DS427/R,
gobuzh OAO against the Council).
adopted 25 September 2013), para. 7.164.

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EN
26.11.2013 Official
Journal
of
the
European
Union
L
315/7
(44) This
claim
must
be
rejected.
First
of
all,
it
is
incorrect
independent producer. This exporting producer requested
that the Commission uses systematically a 5 % profit
that its cost of production be recalculated using a
margin when constructing normal value. Every situation
different weighted average of its own cost of production
is assessed on its own merits taking into account the
and of the cost of production of the toller than the one
specific circumstances of the case. For example, in the
used by the Commission at provisional stage. This
2009 biodiesel case against the United States, various
request was analysed and found to be justified and the
different profit levels were used with the weighted
cost of production for the company concerned was recal
average profit being well above 15 %. Second, the
culated accordingly.
Commission looked also at the short and medium term
borrowing rate in Argentina which is around 14 %
according to the World Bank data. It certainly seems
reasonable to expect a higher profit margin to be
obtained when doing business in the domestic biodiesel
markets than the borrowing cost of capital. Furthermore,
(48) The
Commission
received
other
minor
company-specific
this profit is even lower than the profit realised during
claims but they became moot following the change in
the IP by the producers of the product concerned, albeit
methodology of constructing the normal value as
that level results from distortions in costs brought about
explained above. Therefore, the findings in recitals 40
by the DET and domestic biodiesel prices regulated by
to 46 of the provisional Regulation are, with the modi
the State. Therefore, and for the reasons explained above,
fications explained above, hereby confirmed.
it is maintained that 15 % profit is a reasonable amount
that can be achieved by a relatively new, capital-intensive
industry in Argentina.
2.2. Export price
(45) Following definitive disclosure, CARBIO and the
(49) In recital
49 of the provisional Regulation, it was
Argentine authorities claimed that (i) the reference to
explained that when export sales were made through
the profit levels in the US case was unjustified; (ii) the
related trading companies located inside the Union,
reference of the medium-term borrowing rate lacks logic,
adjustments were made to the export price, including
was never used in the past and if such a benchmark is to
for the profit accruing to the related trader in accordance
be used, it should not be that of Argentina because
with Article 2(9) of the basic Regulation. For the purpose
investments were made in US dollars together with
of that calculation, a level of profit of 5 % for the related
foreign entities; (iii) the profit actually earned by the
trader inside the Union was considered reasonable. Two
Argentine producers could not be taken into account
exporting producers claimed that a 5 % profit margin for
due to the particular market situation; and (iv) by
the related trader within the Union was too high in the
comparison the Union industry target profit was set
commodity trading business and that either no profit, or
at 11 %.
a lower percentage should be used (up to 2 % depending
on the companies).
(46) Those claims must be rejected. The Commission
considered that a 15 % profit margin was reasonable
(50) No
evidence
was
provided
in
support
of
this
claim.
In
for the biodiesel industry in Argentina, since in that
these circumstances the 5 % profit level for related
country during the IP it was still a young and capital
traders within the EU is confirmed.
intensive industry. The reference to the profit margin in
the US case was made to rebut the claim that the
Commission uses systematically a 5 % profit margin
when constructing normal value. The reference to the
medium-term borrowing rate also was not meant to set
a benchmark but to test the reasonableness of the margin
used. The same applies to the profit actually earned by
(51) Following definitive disclosure, CARBIO maintained that
the sampled companies. On the other hand, since the
a profit margin of 5 % was too high in the commodity
purpose of constructing normal value is different from
trading business and referred to a study prepared by
the calculation of the target profit for the Union industry
KPMG specifically for this purpose and submitted to
in the absence of dumped imports, any comparison
the Commission on 1 July 2013 following disclosure
between the two is irrelevant. Therefore, recital 46 of
of the provisional Regulation. The Commission
the provisional Regulation is hereby confirmed.
considered that the findings of the study could not be

relied upon due to the limitations to the analysis referred
to in the study itself, which led to a selection of a limited
number of trading companies, half of which were not
selling agricultural products. Therefore, the evidence
provided is considered to be inconclusive. As a
(47) One
exporting
producer
manufactures
biodiesel
partly
in
consequence, the 5 % margin of profit for the related
its own plants and partly via a tolling agreement with an
traders in the EU is confirmed.

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L 315/8
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Official Journal of the European Union
26.11.2013
(52) One
exporting
producer
complained
that
when
estab
imports of biodiesel from Argentina, there should be a
lishing the export price the Commission did not take
single duty for all cooperating exporting producers, based
into account the so-called ‘hedging results’, i.e. the gain
on the weighted average of the anti-dumping duties of all
or losses incurred by the producer when selling and
exporting producers in the sample. They supported this
purchasing future contracts of soybean oil at the
request by claiming that all sampled producers have
Chicago Board of Trade (CBOT). The company insisted
commercial or other links among each other, they
that hedging is a necessary element of the biodiesel
produce, sell, loan or swap biodiesel to each other and
business because of the volatility of raw material price,
often the product of various companies is loaded
and that the net revenue for the biodiesel seller is not
together in the same ocean vessel and shipped to the
only the price paid by the purchaser, but also the profit
EU and it is no longer possible for customs authorities
(or loss) of the underlying hedging operations.
to identify and distinguish the product of different
producers. These peculiar circumstances were said to
render the imposition of individual duties impracticable.
(53) That
claim
must
be
rejected
because
Article
2(8)
of
the
basic Regulation clearly provides that the export price
shall be the price actually paid or payable for the
(60) Notwithstanding the fact that the request comes from all
product when sold for export, regardless of any
exporting producers, even including those with a lower
separate — albeit related — gain or loss linked to
individual dumping margin than the weighted average
hedging practices.
margin, and despite the potential simplification for the
customs authorities, this request should be rejected.
Indeed, alleged practical difficulties should not be used
as an excuse to derogate from the provisions of the basic
(54) In
the
absence
of
any
further
comments
regarding
export
Regulation unless it is unavoidable. In this case, the
prices, recitals 47 to 49 of the provisional Regulation are,
companies’ practice to swap, borrow or otherwise
with the changes mentioned above, hereby confirmed.
mingle the product concerned does not in itself render
the imposition of individual duties impracticable in the
meaning of Article 9(6) of the basic Regulation.
2.3. Comparison
(55) In recital
53 of the provisional Regulation, it was
explained that when export sales were made through
(61) Three
companies
requested
that
their
names
be
included
related trading companies located outside the EU, the
in the list of cooperating exporting producers in order to
Commission examined whether the related trader
benefit from the anti-dumping duty rate of the
should be treated as an agent working on a commission
cooperating non-sampled companies rather than the
basis and, if so, an adjustment was made in accordance
residual duty for ‘all other companies’.
with Article 2(10)(i) of the basic Regulation to take
account of a notional mark-up received by the trader.
(62) Two
of
the
three
companies
were
already
manufacturing
biodiesel for the domestic market or under tolling
(56) One
company
claimed
that
the
profit
margin
used
by
the
agreements for other exporting producers during the IP,
Commission for the related trader outside the EU as a
but they were not themselves exporting to the Union.
notional mark-up was too high and that a lower profit
The third company was not producing biodiesel during
margin would be more reasonable.
the IP since its plant was still under construction at that
time.
(57) The
Commission
examined
carefully
the
arguments
put
forward by the exporting producer, but concluded that in
light of the extensive activities carried out by the related
(63) The
Commission
considers
that
the
conditions
for
being
traders, a profit margin of 5
% was considered
considered a cooperating exporting producer are not met
reasonable. Therefore, that claim must be rejected.
in the cases of the three companies referred to above.

This applies not only to the company which was not
producing biodiesel at all during the IP, but also to the
companies which cooperated with the investigation by
submitting a sampling form, since in their sampling
(58) In the absence of any other comments regarding
comparison, recitals 50 to 55 of the provisional Regu
reply they made it clear that they were producing for
lation are hereby confirmed.
the domestic market or for third parties but they were
not exporting biodiesel to the Union on their own name.
2.4. Dumping margins
(64) This
request
must
therefore
be
rejected
and
the
‘residual’
(59) All
cooperating
Argentine
exporting
producers
requested
anti-dumping duty should apply to the three companies
that if an anti-dumping duty were to be imposed on
in question.

---

EN
26.11.2013 Official
Journal
of
the
European
Union
L
315/9
(65) Taking into account the adjustments made to the normal
the export tax for RBDPO ranged from 5-18,5 %. The
value and to the export price as set out above, and in the
different tariff rates apply according to the corresponding
absence of any further comments, the table in recital 59
range of reference prices (which follow the international
of the provisional Regulation is replaced by the following
market trends and have nothing to do with quality differ
and the definitive dumping margins, expressed as a
ences). The export tax for the palm fruit is set at a flat
percentage of the CIF Union frontier price, duty
rate of 40 %.
unpaid, are as follows:
(70) For
the
reasons
mentioned above,
recital
63 of the
provisional Regulation is revised and the cost of the
Company
Dumping
margin
main raw material (CPO) recorded by the companies
concerned has, pursuant to Article 2(5) of the basic
Louis Dreyfus Commodities S.A. 46,7
%
Regulation, been replaced by the reference export price
Group ‘Renova’ (Molinos Río de la Plata S.A.,
49,2 %
(HPE) ( 1 ) for CPO published by the Indonesian Auth
Oleaginosa MoreNo Hermanos S.A.F.I.C.I. y A.
orities which is in turn based on published international
and Vicentin S.A.I.C.)
prices (Rotterdam, Malaysia and Indonesia). This
adjustment is made in respect of CPO that was
Group ‘T6’ (Aceitera General Deheza S.A.,
41,9 %
purchased from both related and unrelated companies.
Bunge Argentina S.A.)
The cost of the own produced CPO within the same
Other cooperating companies 46,8
%
legal entity is accepted given that no evidence has been
found that the cost of the own produced CPO within the
All other companies 49,2
%
same legal entity is affected by the distortion.
3. Indonesia
3.1. Normal Value
(71) All exporting producers from Indonesia as well as the
Government of Indonesia claim that the replacement of
(66) As mentioned above in recitals 28 to 34, the
the costs for CPO, as recorded by the companies, with
Commission has now reached the conclusion that the
the Indonesian reference export price for CPO is neither
DET system in Indonesia distorts the costs of production
permissible under WTO rules nor under Article 2(5) of
of biodiesel producers in that country and that therefore
the basic Regulation and is hence illegal. In this regard
the costs associated with the production and sale of the
the Government of Indonesia claimed that the
product concerned are not reasonably reflected in the
Commission wrongly treated the Republic of Indonesia
records kept by the Indonesian producers under investi
as a non-market economy. The arguments put forward
gation.
by the companies can be summarised as follows. Firstly,
the Commission has not demonstrated any reason to
depart from the actual costs recorded or that these
costs do not reasonably reflect the costs associated
(67) The
Commission
has
therefore
decided
to
revise
recital
with the production of product concerned but has
63 of the provisional Regulation and disregard the actual
simply stated that the recorded costs are artificially low
costs of crude palm oil (CPO), the main raw material
compared to international prices and should therefore be
purchased and used in the production of biodiesel, as
replaced.
recorded by the companies concerned in their accounts
and to replace them with the price at which those
companies would have purchased the CPO in the
absence of such a distortion.
This is contrary to WTO rules according to which the
test for determining whether a particular cost can be
used for calculating production costs is whether that
cost is associated with the production and sale of the
(68) The
investigation
has
confirmed
that
the
price
level
for
product and not whether that cost reasonably reflect
the domestically traded CPO is significantly depressed as
market value. Secondly, even if Article 2(5) of the basic
compared to the ‘international’ reference price, the
Regulation seemingly allows for an adjustment to be
difference being very close to the export tax applied to
made, the application of that Article would be limited
CPO. Since the DET system limits the possibilities to
to situations where the State interferes directly on the
export CPO, it leads to larger quantities of CPO being
market by setting or regulating the prices at an artificially
available on the domestic market, hence putting pressure
low level. However, in this particular case, the
down on the domestic CPO prices. This constitutes a
particular market situation.
( 1 ) The HPE price is monthly set by the Indonesian authorities since
September 2011 and averages the price information from the
previous month from three different sources (i) CIF Rotterdam, (ii)
CIF Malaysia, and (iii) the Indonesian commodity exchange market.
The HPE price is set on the basis of the same sources but on a FOB
(69) During
the
IP
biodiesel
exports
had
an
export
tax
rate
basis. For the part of the IP before September 2011 (July-August
between 2 and 5 %. During the same period CPO exports
2011) only the Rotterdam price was used as the benchmark to
had an export tax rate ranging between 15-20 % while
establish the HPE for CPO.

---

L 315/10
EN
Official Journal of the European Union
26.11.2013
Commission alleges that the domestic price of CPO,
Commission’s basic assumption that the DET limits the
rather than being regulated by the State, is artificially
possibilities to export CPO, thereby leading to larger
low simply due to the export tax imposed on CPO.
quantities of CPO being available on the domestic
Even if this were to be true, any effect on the domestic
market and hence depressing the domestic CPO prices
price can only be considered as accidental or mere side-
is factually incorrect as CPO is exported in large quan
effects of the export tax system. Thirdly, the Commission
tities (70 % of all production). In any event, even if the
wrongly relies on the Acron judgment to justify the
domestic CPO market would be considered distorted by
legality of the CPO adjustment. This judgment is
virtue of the DET, also the HPE price is equally distorted,
currently under appeal and cannot therefore be relied
as it is based on international export prices, which
upon as a precedent. In any case, the factual circum
include the export tax. Therefore, the HPE price for
stance in Acron was different as it relates to a situation
CPO cannot be used as an appropriate benchmark
where, contrary to CPO prices in Indonesia which are set
price for adjusting the cost of CPO.
freely on the market, the gas prices had been regulated
by the State. Finally, the Government of Indonesia
claimed that the Article 2(5) adjustment was done
solely to increase dumping margins by reason of
differences in taxation.
(74) Notwithstanding the fact that CPO is exported from
Indonesia in large quantities, the investigation has
revealed that the domestic price of CPO is artificially
low as compared with international prices. Moreover,
the price difference found is close to the export tax
(72) The
claim
that
the
adjustment
under
Article
2(5)
of
the
imposed on DET. It is therefore reasonable to conclude
basic Regulation is illegal under WTO and/or Union rules
that the low domestic price level is a result of a
must be rejected. The basic Regulation has transposed the
distortion by virtue of the DET. In addition, international
WTO anti-dumping agreement (ADA) and it is therefore
prices of commodities, including CPO, are determined
considered that all provisions of this Regulation,
based on supply and demand, reflecting the dynamics
including Article 2(5), are consistent with the Union’s
of market forces. No evidence have been adduced that
obligations under ADA. In this respect it is recalled
would indicate those market forces have become
that Article 2(5) of the basic Regulation is applicable to
distorted by virtue of the Indonesian DET. The claim
both market and non-market economies equally. As
that the HPE is an inappropriate benchmark is
mentioned above (recital 42), the General Court estab
therefore rejected.
lished in the Acron case the principle of law that if the
costs associated with the production of the product
under investigation are not reasonably reflected in the
records of the companies, they do not serve as a basis
for calculating normal value and that such costs could be
replaced with costs reflecting a price set by market forces
(75) One
exporting
producer,
which
was
found
not
to
have
pursuant to Article 2(5) of the basic Regulation. The fact
representative domestic sales (recital 60 of the
that the Acron case concerned prices that were regulated
provisional Regulation) claimed that the Commission
by the State cannot, however, be interpreted as meaning
had erroneously made the representativity test on the
that the Commission is precluded to apply Article 2(5) in
basis of sales by related companies individually instead
respect to other forms of State intervention that distorts,
of the global sales of all companies within the group. It
directly or indirectly, a particular market by depressing
nonetheless acknowledges that this alleged error had no
prices to an artificially low level. The panel in China —
impact on the provisional finding made in respect of it. It
Broilers has recently reached a similar conclusion when
is recalled that in respect to this exporting producer all
interpreting Article 2.2.1.1 of the ADA. In the present
related companies failed individually the representativity
case the Commission has found that the costs associated
test. Therefore, even if this claim was to be founded it is
with the production of the product concerned are not
clear that a representativity test on the basis of the
reasonably reflected in the records of the companies
totality of domestic sales of the all related companies
concerned because they are artificially low by virtue of
could not, as acknowledged by the exporting producer,
the Indonesian DET system. It was therefore fully justified
have had an impact on the provisional findings. In the
for the Commission to adjust the costs for COP under
absence of any further comments, recitals 60 to 62 of
Article 2(5) of the basic Regulation. With regard to the
the provisional Regulation are hereby confirmed.
claim by the Indonesian Government it is noted that that
the Article 2(5) adjustment is based on the demonstrated
difference between domestic and international CPO
prices and not on any differences in taxation.
(76) One
party
claimed
that
in
relation
to
recital
63
of
the
provisional Regulation an overstated SG&A was used for
that party. After having examined this claim, it appeared
that the SG&A for both domestic and export sales was
(73) Two
exporting
producers
in
Indonesia
claimed
that
the
included in the construction of normal value. The
Commission has failed to demonstrate that the price of
necessary corrections to use the SG&A for only the
Indonesian domestic CPO is distorted. They argue that
domestic sales were accordingly made.

---

EN
26.11.2013 Official
Journal
of
the
European
Union L
315/11
(77) One
party
questioned
the
construction
of
normal
value
excessive. They claim that the provisional Regulation
and in particular the choice of methodology under
does not explain how the Commission has calculated
Article 2(6) as stated in recital 65 of the provisional
the 15 % and therefore they assume that the Commission
Regulation. Article 2(6) provides for three alternative
took the 15 % from the profit margin used in the injury
methodologies to establish SG&A and profit in case the
calculations. They claimed that in several other cases
actual data of the company cannot be used. This party
concerning commodities the Commission used profit
claimed that these three methodologies must be
margins in the region of 5 %. Several parties suggested
considered in the order in which they are presented
using the profit margin of the bioethanol case from the
and that therefore Article 2(6)(a) and (b) should be
United States. One party also suggested using the lower
considered first to be applied.
profit margin of its sales of a blend of biodiesel with
mineral diesel. In addition, the Government of
Indonesia claimed that it is duplicative to replace the
CPO cost under Article 2(5) of the basic Regulation
while using at the same time a 15 % profit margin
(78) Whereas
the
provisional
Regulation
appeared
to
address
under Article 2(6)(c) which would reflect the profit
only the methodology under Article 2(6)(c), the following
margin of an undistorted market.
recitals elaborate why Article 2(6)(a) and (b) are not
applicable in this case.
(84) First, it is incorrect that the Commission systematically
(79) Article 2(6)(a) is not applicable given that no actual
uses a 5 % profit margin when constructing normal
amounts for any of the sampled Indonesian (and
value. Every situation is assessed on its own merits
Argentinian) companies were established given the fact
taking into account the specific circumstances of the
that they did not have any sales in the ordinary course of
case. For example, in the 2009 biodiesel proceeding
trade. Therefore, no data on actual amounts of any other
against the United States, various different profit levels
exporter or producer (in the sample) is available to apply
were used with the weighted average profit being well
Article 2(6)(a).
above 15 %. Second, given that the short and medium
term borrowing rate in Indonesia is around 12 %
according to World bank data, it seems reasonable to
expect that the profit margin of doing business in the
domestic biodiesel market would be higher than the
borrowing cost of capital. The reference to the
(80) Article
2(6)(b)
is
not
applicable
given
that
all
Indonesian
(and Argentinian) companies in the sample do not have
medium-term borrowing rate is not meant to set a
sales of products of the same general category of
benchmark but to test the reasonableness of the
products that are made in the ordinary course of trade.
margin used. Third, whether or not the sales of a

blend of biodiesel with mineral diesel fall under the
same general category of products, Article 2(6)(b) of
the basic Regulation states, as already mentioned in
recital 80 above, that such sales should be made in the
ordinary course of trade. Given that the domestic sales of
(81) In
relation
to
Article
2(6)(b),
this
party
also
argued
that
biodiesel are not in the ordinary course of trade, the sales
the Basic Regulation is inconsistent with the WTO Regu
of the blend of biodiesel with mineral diesel is not,
lation to the extent that it contains the requirement in
mutatis mutandis, considered to be in the ordinary
Article 2(6)(b) that the sales should be made in the
course of trade. Therefore, and for the reasons
ordinary course of trade. However, as mentioned in
explained above, 15 % profit is a reasonable amount
recital 72 above, the basic Regulation has transposed
that can be achieved by a relatively new, capital-
the WTO anti-dumping agreement (ADA) and it is
intensive industry in Indonesia. The argument of the
therefore considered that all provisions of this Regu
Government of Indonesia regarding a duplicative effect
lation, including Article 2(6), are consistent with the
cannot be accepted since a cost adjustments under
Union’s obligations under ADA and that the sales in
Article 2(5) and the reasonable profit under Article 2(6)(c)
the ordinary course of trade element is fully compliant.
are two clearly distinct issues. Recital 65 of the
provisional Regulation is hereby confirmed.
(82) Therefore,
the
choice
of
applying
Article
2(6)(c)
in
using
any other reasonable method to determine a profit
margin is confirmed.
(85) One party claimed that since the HPE price for CPO is
inclusive of international transportation costs and since
the purpose of the adjustment of the domestic price of
CPO to the level of the international price of CPO is to
arrive at an undistorted price of domestic CPO, the HPE
(83) Furthermore,
several
parties
considered
the
15
%
profit
price for CPO should be adjusted downwards to exclude
margin used when constructing normal value to be
transportation costs.

---

L 315/12
EN
Official Journal of the European Union
26.11.2013
(86) That
claim must be rejected. The Commission was
the information provided and verified did not contain
considering a number of alternatives for the selection
sufficiently detailed information to allow such a calcu
of a most suitable price which should be used as an
lation. Both claims were therefore rejected.
international reference price. It should be recalled that
the Indonesian authorities themselves use the HPE price
as a benchmark to calculate the monthly level of export
duties. The HPE price as defined by the Indonesian auth
(91) The Union Industry claimed that the cost of the own
orities was therefore considered the most appropriate
produced CPO within the same legal entity should also
international reference price to be used as a benchmark
be adjusted under Article 2(5) of the basic Regulation as
for establishing the level of distortion of the costs of
it is also affected by the distortion which resulted from
production of biodiesel in Indonesia.
the DET.

(92) That
claim
must
be
rejected.
While
the
raw
materials
are
being passed along the biodiesel production process at
(87) Two
parties
submitted
that
the
Commission
failed
to
take
various stages of refinery/processing, the costs of those
into account that they manufacture biodiesel from
production stages can be treated as reliable since they are
feedstock which is different than CPO, i.e. Palm Fatty
being realised within the same legal entity and the issue
Acid Distillate (‘PFAD’), Refined Palm Oil (‘RPO’) or
of unreliable transfer pricing as described above does not
Refined Palm Stearin (‘RST’). By failing to take into
occur.
account the parties’ usage of the actual raw material in

their production of biodiesel, the CPO adjustment (as
described in recital 70) was applied on the incorrect
raw material used and has therefore lead to an
(93) One
exporting
producer
claimed
that
the
Commission
incorrect level of the constructed normal value.
should have deducted so called price allowances from
the constructed normal value. That claim cannot be
accepted. The constructed normal value was constructed
on the basis of costs. It would therefore be inappropriate
to make any allowances on the basis of price consider
(88) Those
claims
must
be
rejected.
It
has
to
be
underlined
ations.
that the Commission only replaced the cost of CPO
purchased, from related and unrelated suppliers, for the
production of biodiesel. As regards by-products such as
PFAD, RPO and RST which result from the processing of
3.2. Export price
purchased CPO and which are also further processed to
produce biodiesel, no adjustments were made.
(94) One party questioned the establishment of the export
price, claiming that both the hedging gains and losses
should be taken into account and alleging an inconsistent
accounting treatment of biodiesel hedging gains and
losses.
(89) Three
parties
claimed
that
the
Commission
failed
to
recognise that their purchase of CPO from related
companies should be treated equally to the in-house
production and therefore no adjustment pursuant to
(95) The
claim
that
both
the
hedging
gains
and
losses
should
Article 2(5) should apply (as explained in recital 70
be taken into account must be rejected. Article 2(8) of
above). The parties claim that transactions within the
the basic Regulation clearly provides that the export price
group were realised at arm’s length and should
shall be the price actually paid or payable for the product
therefore not be adjusted and replaced by an inter
when sold for export, regardless of any separate — albeit
national price. In addition, one exporting producer
related — gain or loss linked to hedging practices.
claimed that the constructed normal value should be
Therefore, the methodology in recitals 66 and 67 of
calculated on a monthly basis during the IP.
the provisional Regulation are hereby confirmed.
(96) The Commission acknowledges that an inconsistent
accounting treatment of the biodiesel hedging gains
(90) As
the internal transfer price cannot be considered
reliable it is the Commission’s standard practice to
and losses of one party occurred at the provisional
verify whether transactions between related parties are
stage. This claim is accepted and the necessary
indeed made at arm’s length. In order to so do, the
corrections have been made.
Commission compares the price between related
companies to the underlying market price. Since the
underlying domestic market price is distorted the
(97) In
relation
to
recital
68
of
the
provisional
Regulation,
Commission cannot make such verification. Therefore,
one party claimed that the 5 % profit margin used for
the Commission has to replace such an unreliable price
related trading companies located inside the Union
with a reasonable price that would be applicable under
results in an excessive return on capital and overstates
arm’s length in normal market conditions. In this case,
the profit that is usually incurred on sales of biodiesel by
the international price. With regard to the claim for
unrelated traders. It claims that a typical return on capital
monthly calculations for the constructed normal value,
corresponds to a profit margin of 1,3-1,8 %.

---

EN
26.11.2013 Official
Journal
of
the
European
Union L
315/13
(98) Given
the
absence
of
cooperation
by
unrelated
importers
and given the fact that trading companies are service
Company
Dumping
margin
businesses without significant capital investments
rendering the return on capital allegation above as irrel
PT. Wilmar Bioenergi Indonesia, Medan and
23,3 %
evant, the Commission rejects the above claim and
PT. Wilmar Nabati Indonesia, Medan
considers 5 % profit margin to be reasonable in this
Other cooperating companies 20,1
%
case. Recital 68 of the provisional Regulation is
therefore confirmed.
All other companies 23,3
%
(99) In
relation
to
recital
69
of
the
provisional
Regulation,
E. INJURY
one party claimed that the premium for double-
counting biodiesel should be added to the export price,
1. Union production and Union industry
given that this is a mere implementation of the Italian
law.
(105) The provisional Regulation, in recitals 80 to 82, defined
the Union industry and confirmed that three companies
were excluded from the definition of the Union industry
(100) Even if the Commission would accept this claim and add
due to their reliance on imports from the countries
the premiums to the export price, the premiums would
concerned, that is to say that they imported significantly
have to be deducted again under Article 2(10)(k) in order
more biodiesel from the countries concerned than they
to compare the export price with the same normal value
produced themselves.
with due account taken for differences that affect price
comparability. Given that in Indonesia there is no
premium for double counting biodiesel, the higher
(106) Two further companies were excluded from the defi
export price in Italy would therefore not be directly
nition of the Union industry as they had not produced
comparable. That claim is therefore rejected and recital
biodiesel during the investigation period.
69 of the provisional Regulation is hereby confirmed.
(101) Following the definitive disclosure that party repeated its
(107) Comments were received after publication of the
claim. No substantial additional arguments were however
provisional Regulation that other companies should be
brought forward as to alter the Commission’s assessment.
excluded from the definition of the Union industry for
Therefore recital 69 of the provisional Regulation
importing biodiesel from the countries concerned, and
remains confirmed.
also because of their relationship to exporting
producers in Argentina and Indonesia, thereby shielding
themselves from the negative consequences of dumping.
(102) After the final disclosure, several exporting producers
drew the Commission’s attention to alleged clerical
errors in the dumping calculations. Those claims were
examined and, where warranted, corrections were made
(108) Those comments are rejected. After analysing the claim
to the calculations.
regarding relationships between exporting producers and
the Union industry, it was found that a holding company
held shares in both an Argentinian exporting producer
3.3. Comparison
and a Union producer.
(103) In the absence of any comments regarding comparison,
recitals 70 to 75 of the provisional Regulation are hereby
confirmed.
(109) Firstly, those companies were found to be openly
competing with each other for the same customers on
the Union market, thereby showing that their rela
3.4. Dumping margins
tionship did not have any impact on the business
practices of either the Argentinian exporting producer
(104) Taking into account the adjustments made to the normal
or the Union producer.
value and to the export price as set out in recitals above,
and in the absence of any further comments, the
definitive dumping margins, expressed as a percentage
of the CIF Union frontier price, duty unpaid, are as
(110) Following definitive disclosure, an interested party
follows:
requested information as to the Commission’s conclusion
that Argentinian exporters and the Union industry were
competing for the same clients on the European market.
The investigation of Union producers, and the investi
Company
Dumping
margin
gation of Argentinian exporters, showed this fact and
no evidence has been provided to substantiate any alle
PT. Ciliandra Perkasa, Jakarta 8,8
%
gation that Argentinian exporters and Union producers
had agreed not to compete in sales of biodiesel to end
PT. Musim Mas, Medan 18,3
%
users. The number of end users is relatively small and
PT. Pelita Agung Agrindustri, Medan 16,8
%
composed in the main of the large oil refineries, which
purchase both from Union producers and importers.

---

L 315/14
EN
Official Journal of the European Union
26.11.2013
(111) Secondly, the main centre of interest of the Union
purchasing biodiesel and blending it with mineral
producer referred to in recital 108 above was found to
diesel, as these blends were also product concerned.
be within the Union, in particular their production and
This claim is rejected. The product concerned is biodiesel,
related sales activities as well as research activities. As a
in pure form or as included in a blend Therefore the
result, the conclusion was that the relationship was not a
producers of the product concerned are producers of
reason to exclude this company from the definition of
biodiesel and not the companies that mix the biodiesel
the Union industry under Article 4(1)(a) of the basic
with the mineral diesel.
Regulation.
(114) The definition of the Union industry as set out in recitals
(112) The fact that some of the Union industry has been
80 to 82 of the provisional Regulation is therefore
importing biodiesel from the countries concerned is in
confirmed, along with the volume of production for
itself not enough to change the definition of the Union
the IP as set out in recital 83 of the provisional Regu
industry. As explained in the provisional Regulation, the
lation.
imports of the Union industry from the countries
concerned were made in self-defence. Furthermore, it
was found that the centre of interest of some Union
producers who imported from the countries concerned
2. Union consumption
remained in the Union — these companies were
producing more in volume terms than they were
(115) After provisional disclosure the Union industry made a
importing and their research functions were carried out
small correction to their sales for 2009, thereby adjusting
in the Union.
the Union consumption for that year. This correction
does not change the trend or the conclusions drawn
from the data in the provisional Regulation. Table 1 is
corrected below. In the absence of any comments,
(113) One interested party alleged that the Union industry
recitals 84 to 86 of the provisional Regulation are
should also contain those companies that were
hereby confirmed.
Union consumption 2009 2010 2011 IP
Tonnes 11
151
172 11
538
511 11
159
706 11
728
400
Index 2009 = 100 100 103 100 105
Source: Eurostat, data from the Union industry
3. Cumulative assessment of the effects of the
during the winter months, but it is still in competition
imports from the countries concerned
with RME and Union made biodiesel and also SME from
Argentina.
(116) In recitals 88 to 90 of the provisional Regulation the
Commission determined that the conditions were met
for cumulative assessment of the effects of imports
(118) Recital 90 of the provisional Regulation is therefore
from Argentina and Indonesia. This was challenged by
confirmed.
one interested party who alleged that PME from
Indonesia was not competing with biodiesel made in
the Union on the same basis as SME from Argentina,
4. Volume, price and market share of dumped
and that PME was cheaper than Union produced
imports from the countries concerned
biodiesel as the raw material (or ‘feedstock’) was
cheaper than the feedstock available in the Union.
(119) One interested party challenged the import data set out
in Table 2 of the provisional Regulation, stating that
imports from Indonesia were much lower than
presented in the table. Import data in Table 2 was
based on Eurostat data, which was checked carefully
(117) Those arguments are rejected. Both SME and PME are
and found to be correct, and in line with the data
imported into the Union, and are also manufactured
collected from Indonesian exporters. Biodiesel is a
within the Union, and are blended with RME and other
relatively recent product, and the customs codes
biodiesels manufactured within the Union before being
applicable to imports of biodiesel have changed over
sold or blended with mineral diesel. The blenders have
recent years. Therefore, when extracting data from
the choice of purchasing biodiesel from different feed
Eurostat, codes applicable at the time must be used in
stocks and different origins to produce their final
order to ensure that the data is accurate. This explains
product, based on the market and the climatic conditions
why the interested party’s extraction of data is
throughout the year. PME is sold in larger quantities
incomplete and it shows lower imports than the full
during the summer months and smaller quantities
dataset presented in Table 2.

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26.11.2013 Official
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Union L
315/15
(120) Given the small change in the Union consumption in
compare the CFPP 13 and above from Indonesia with
Table 1, the market share for Argentina for 2009 in
the CFPP 0 manufactured and blended in the Union. One
Table 2 has also slightly changed, while for Indonesia
Indonesian exporting producer noted that as the sales of
there was no change. This does not change the trends
CFPP 13 by the Union industry were made in small
of the data or the conclusions drawn from them. The
quantities per transaction, that these prices should be
market share is corrected below:
compared to similar sized transactions of CFPP 0. On
inspection of transactions of CFPP 0 of a similar
quantity per transaction, the difference in price found
was in line with the difference using all transactions of
CFPP 0, with differences in price both above and below
2009 2010 2011 IP
the average price difference. As a result there was no
change to the level of price undercutting found in the
Imports from
provisional Regulation in recital 97.
Argentina
Market share 7,7
% 10,2
% 12,7
% 10,8
%
(125) One Indonesian exporting producer requested that the
Index 2009 = 100 100 135 167 141
Commission disclose the full Product Control Number
(‘PCN’) of the blends sold by the Union industry — the
Source: Eurostat
percentages of each feedstock in the sale made by the
Union industry of their own production. Given that the
comparison for injury purposes was made solely on the
basis of the CFPP, this request was denied.
5. Price undercutting
(121) As set out in recitals 94 to 96 of the provisional Regu
lation, in order to determine price undercutting, the price
(126) One interested party claimed that there was a difference
of imports from Argentina and Indonesia was compared
in price between biodiesel that met the criteria set out in
to the sales price of the Union industry, using data from
the Renewable Energy Directive (‘RED certified’) and
the sampled companies. In this comparison the biodiesel
biodiesel that did not. It claimed that as imports from
imported by the Union industry for resale was excluded
Indonesia were not RED certified, and that the price
from the calculations of price undercutting.
quoted for RED certified biodiesel was higher, an
adjustment should be made.
(122) Interested parties noted that the methodology used, being
a comparison of the Cold Filter Plugging Point (‘CFPP’),
was not the same as used in a previous anti-dumping
(127) That claim was rejected. Almost all imports from
investigation involving biodiesel from the USA, where
Indonesia during the IP were RED certified. In any case,
the comparison was made on feedstock.
Member States implemented the sustainability criteria set

out in the RED into their national legislation only during
the course of 2012, so during most of the IP whether
biodiesel was RED certified or not had no effect.
(123) Unlike the exporting producers in Argentina and
Indonesia, the Union industry does not sell biodiesel
made from one feedstock, but blends several feedstocks
together to produce the final biodiesel that is sold. The
(128) Following definitive disclosure, one Indonesian exporting
final customer is not aware of, nor concerned by, the
producer commented on the price undercutting calcu
composition of what they are purchasing once the
lations and claimed that PME imports from Indonesia
product meets the required CFPP. What matters for a
should be compared to all sales of the Union industry.
customer is the CFPP irrespective of which feedstock is
In fact the undercutting calculation has been to compare
used. In these circumstances, it was found to be appro
sales of PME from Indonesia with all sales of the Union
priate in this proceeding to make the price comparison
industry at CFPP 0, by increasing the price of Indonesian
on the basis of the CFPP.
PME imports by a price factor calculated by comparing
the CFPP 0 sales of the Union industry with the CFPP 13
sales of the Union industry. The claim is therefore
rejected. The claim of the same interested party that
the injury calculations included imported product is
(124) For imports from Indonesia, which are at a CFPP of 13
factually incorrect and is therefore rejected. In any case,
or above, an adjustment was made, being the difference
imported biodiesel and Union-produced biodiesel were
in price between the Union industry’s sales of CFPP 13
blended together and sold at the same price as blends
and the Union industry’s sales of CFPP 0, in order to
that did not include any imported biodiesel.

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L 315/16
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Official Journal of the European Union
26.11.2013
(129) One Indonesian exporting producer also challenged the
(131) Following provisional disclosure the Union industry
calculation of post-importation costs. However, those
noted that the capacity data that had been used in
costs were verified as the actual costs of importation of
Table 4 of the provisional Regulation included capacity
biodiesel minus delivery costs to the final destination and
that had not been dismantled, but was not in such a state
no change is necessary.
that it would have been available for use during the IP, or
previous years, to manufacture biodiesel. They separately
6. Macroeconomic indicators
identified this capacity as ‘idle capacity’ which should not
be counted as capacity available for use. The capacity
(130) As set out in recital 101 of the provisional Regulation,
utilisation figures in Table 4 were therefore understated.
the following macroeconomic indicators were analysed,
After close scrutiny of this resubmitted data, it was
based on data received covering the entire Union
accepted and Table 4 is restated below. The capacity
industry: production, production capacity, capacity utili
utilisation rate, which had been from 43 % to 41 % in
sation, sales volume, market share, growth, employment,
the provisional Regulation, was now 46 % to 55 %. The
productivity, magnitude of the dumping margin and
Union industry also corrected the production data for
recovery from past dumping.
2009 to produce the table below:
2009 2010 2011 IP
Production capacity (tonnes) 18
856
000 18
583
000 16
017
000 16
329
500
Index 2009 = 100 100 99 85 87
Production volume (tonnes) 8
729
493 9
367
183 8
536
884 9
052
871
Index 2009 = 100 100 107 98 104
Capacity utilisation 46
% 50
% 53
% 55
%
Index 2009 = 100 100 109 115 120
(132) Recital 103 of the provisional Regulation analysed the
more accurate dataset of capacity available to produce
previous capacity utilisation data, noting that production
biodiesel during the period under consideration than
increased while capacity remained stable. With the
the dataset originally provided and published in the
revised data production still increases, but useable
provisional Regulation.
capacity decreased during the same period. This shows
that the Union industry was reducing available capacity
in face of increased imports from Argentina and
Indonesia and thereby reacting to market signals. This
(134) One interested party stated that the Union industry was
revised data is now more in line with the public
not injured, as production volumes rose in line with
statements of the Union industry and Union producers,
consumption. This argument is rejected, as other
stating that during the period under consideration
important injury indicators clearly point to the
production was stopped in several plants and that the
existence of injury, in particular the loss of market
capacity that had been installed was not immediately
share to imports from the countries concerned and the
available for use, or only available for use with significant
reduced profitability trend leading to losses.
reinvestment.
(135) Another interested party argued that the Union industry
(133) Several interested parties questioned the revised capacity
was not injured if comparing trends only between 2011
and capacity utilisation data. However, no alternatives
and the IP as opposed to comparing the trends during
were provided by any interested party. The revision is
the period from 1 January 2009 to the end of the IP (‘the
based on the revised capacity data provided by the
period considered’). Given that the IP covers half of
complainant, covering the entire Union industry. The
2011, a comparison between 2011 and IP is not
revised data was cross-referenced to publicly available
accurate. Besides, for a comparison to be meaningful it
data concerning in particular idle capacity as well as
is necessary to examine the trends relevant for the injury
capacity of producers that ceased operations due to
assessment during a period which is long enough as it
financial difficulties. As explained above in Section 6,
was done in the present case. This claim is therefore
‘Macroeconomic indicators’, the revised data provide a
rejected.

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26.11.2013 Official
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European
Union L
315/17
(136) The same interested party noted that the Commission
were to be limited to the period 2011-IP, the industry
had not published the total sales value of the Union
would still be found to have suffered material injury.
industry in the provisional Regulation and requested
that this figure be published. However, all relevant
factors mentioned in Article 3(5) of the basic Regulation
were examined, allowing a full assessment of injury. Sales
(143) In the absence of other comments, recitals 118 to 120 of
value was collected, and verified, from sampled
the provisional Regulation are hereby confirmed.
companies, who were representative of the Union
industry as a whole.
F. CAUSATION
(137) The same party also noted that the Union industry was
1. Effect of the dumped imports
able to increase employment and therefore there was no
(144) One interested party claimed that imports from
negative effect on the Union industry during the period
Argentina could not be a cause of injury, as import
of investigation.
volumes have remained stable from 2010 to the end
of the IP, decreasing slightly from 2011 to the end of
the IP.
(138) However, as explained in recital 106 of the provisional
Regulation, employment in this capital intensive industry
is relatively low. Therefore, small variations in the
(145) This data was taken from Table 2 of the provisional
numbers can cause a large movement in the indexed
Regulation and is accurate. However the Commission’s
data. The increase in overall employment does not
analysis runs from the start of the period considered to
negate the injury suffered by the Union industry as
the end of the IP and on that basis imports have risen by
shown by other indicators.
48 %, with an increase of 41 % in market share. In
addition, as explained in recital 90 of the provisional
Regulation, not only imports from Argentina but also
imports from Indonesia were taken into account.
(139) In the absence of any further comments, recitals 103 to
110 of the provisional Regulation are hereby confirmed.
(146) Taking a year-on-year price comparison, the same
interested party noted that prices of imports from
Argentina rose at a faster pace than the sales prices of
7. Microeconomic indicators
the Union industry. However, imports from Argentina
still undercut those of the Union industry, which
(140) As set out in recital 102 of the provisional Regulation,
would explain why the Union prices could not rise as
the following microeconomic indicators were analysed,
quickly.
based on data verified at the sampled Union producers:
average unit prices, unit cost, labour costs, inventories,
profitability, cash flow, investments, return on
investments and ability to raise capital.
(147) In the absence of any other comments as regards the
effect of the dumped imports, recitals 123 to 128 of
the provisional Regulation are hereby confirmed.
(141) In the absence of any relevant comments, recitals 111 to
117 of the provisional Regulation are hereby confirmed.
2. Effect of other factors
2.1. Imports from third countries other than the countries
concerned
8. Conclusion on injury
(148) In the absence of comments, the conclusion that imports
(142) Several parties contested the conclusion on injury put
from other countries did not cause injury, as set out in
forward in the provisional Regulation on the basis that
recital 129 of the provisional Regulation is confirmed.
between the year 2011 and the IP some indicators
appeared to have improved. While it is true that some
indicators showed an upward trend between 2011 and
the IP (e.g., production and sales), the industry was not in
2.2. Non-dumped imports from the countries concerned
a position to pass on cost increases during this period as
noted in recital 111 of the provisional Regulation. This
(149) Following the application of Article 2(5) as mentioned in
resulted in a further worsening of the industry’s position
recitals 38 and 70 above, no non-dumped imports from
from losses of 0,2 % in 2011 to losses of 2,5 % in the IP.
the countries concerned were found. Therefore, recital
Therefore, it is considered that, even if the injury analysis
130 of the provisional Regulation is revised accordingly.

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L 315/18
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Official Journal of the European Union
26.11.2013
2.3. Other Union producers
they produced themselves and not their trading activities
in the finished product made in the face of increasing
(150) In the absence of any comments recital 131 of the
volumes of dumped imports.
provisional Regulation is hereby confirmed.
(157) The Union industry has also shown that in previous
2.4. Imports made by the Union industry
years the importation of soya bean oil — and palm
oil — for processing into biodiesel was economically
(151) As set out in recitals 132 to 136 of the provisional
Regulation, the Union industry imported significant
viable. No evidence of the contrary was provided by
quantities of biodiesel from the countries concerned
the interested party. Only with the distortive effect of
during the period considered, up to 60 % of all
the differential export tax which makes the export of
imports in the IP from those countries.
biodiesel cheaper than the raw materials does import

of the finished product become economically sensible.
(152) One interested party alleged that these imports, far from
being in self-defence, were part of a ‘carefully matured
(158) One interested party alleged that those imports were a
long-term strategy’ by the Union industry to invest in,
cause of injury because only the Union industry had the
and source biodiesel from, Argentina.
capacity to blend the SME from Argentina and PME from
Indonesia with Union produced biodiesel for resale to
diesel refiners. That allegation is incorrect. Blending is a
simple operation that many trading companies are
capable of doing in their storage tanks. No evidence
(153) They also allege that there has never been an economic
was provided that only the Union producers are
rationale to import soya bean oil into the Union and
capable of such blending, and the allegation was
process it into biodiesel within the Union, and that it
therefore rejected.
is only economically feasible to process the soya bean oil
in Argentina and export the resulting biodiesel.
(159) One Indonesian exporting producer further claimed that
imports by the Union industry were not made in self-
(154) These claims should be rejected. No evidence of such a
defence and compared data for the calendar year 2011
‘long-term strategy’ has been provided and this has been
with data from the IP, which contains six months of the
denied by the Union industry. Clearly if the strategy of
same year. A comparison between the two is therefore
the Union industry was to supplement their biodiesel
not accurate without being able to split the IP into two
production by producing in Argentina and importing
halves. Therefore this argument is rejected.
the finished product, it would be nonsensical and
illogical to then launch a complaint against such imports.
(160) In the absence of any other comments as regards the
exports by the Union industry, recitals 132 to 136 of
(155) One interested party repeated that the imports of
the provisional Regulation are hereby confirmed.
biodiesel by the Union industry, that were made in
self-defence, were in fact made as part of a long-term
commercial strategy. This allegation, which was not
substantiated, is rejected. No evidence beyond mere alle
gations has been provided of such a strategy. Also, it
2.5. Capacity of the Union industry
would seem illogical for the concerned Union
producers to support the complaint and, in some cases,
(161) Recitals 137 to 140 of the provisional Regulation noted
to have increased its capacity in the Union while at the
that the capacity utilisation of the Union industry
same time have a strategy to fulfil production needs by
remained low throughout the period under consideration,
imports.
but that the situation of the sampled companies
deteriorated during the period while their capacity utili
sation did not decrease by the same amount.
(156) The same interested party also argued that the market
share of the Union industry should be calculated by
including their imports made in self-defence. This
(162) The provisional conclusion was therefore that the low
submission was rejected as market share calculations
capacity utilisation rate, as a constant feature, was not
have to reflect the sales of the Union industry of goods
responsible for the injury caused to the Union industry.

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26.11.2013 Official
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of
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European
Union L
315/19
(163) One interested party commented on the data in the
allegation was not substantiated and no evidence was
provisional Regulation, noting that even in the absence
submitted to show that the costs of reducing capacity,
of any imports at all capacity utilisation of the Union
or of closing entire plants or companies, concerned
industry would only have been 53 % during the IP. It
significant amounts.
also points to the increase in production capacity from
2009 to the end of the IP which has led to a reduction in
capacity utilisation during the period under consider
ation.
(169) Finally it was alleged with regard to the capacity that any
company increasing biodiesel production capacity during
the period under consideration would be making an
irresponsible business decision. No evidence was
(164) However, the interested party did not provide any
provided for this allegation. In addition the fact that
evidence to show that this low capacity utilisation was
some companies were able to increase their capacity in
causing injury to such an extent as to break the causal
the face of increasing imports of dumped biodiesel from
link between the dumped imports and the deterioration
Argentina and Indonesia shows the demand on the
of the situation of the Union industry. Fixed costs
market for their particular products.
represent only a small proportion (roughly 5 %) of
total production costs, which shows that the low
capacity utilisation was only one factor of injury, but
not a decisive one. Also, one of the reasons for this
low capacity utilisation rate is the fact that the Union
(170) The revised macroeconomic indicators also show that
industry, due to the particular market situation, imported
companies were during the period taking capacity out
the finished product itself.
of possible use, and closer to the end of the IP were
starting a process of closing plants that are no longer
viable. Also increases in capacity on a company-by-
company level are mainly due to the expansion of so-
(165) In addition, following the inclusion of the revised data on
called ‘second generation’ biodiesel plants, manufacturing
capacity and utilisation, the Union industry decreased
from waste oils or hydrogenated vegetable oil (‘HVO’).
capacity during the period considered, and increased
Therefore the Union industry was, and is, in the
capacity utilisation, from 46 % to 55 %. This shows
process of rationalising their capacity to meet the
that the capacity utilisation of the Union industry
Union’s demands.
would be significantly higher in the absence of dumped
imports than the 53 % mentioned above.
(171) In the absence of any further comments as regards the
capacity of the Union industry, recitals 137 to 140 of the
(166) Following definitive disclosure, several interested parties
provisional Regulation are hereby confirmed.
cast doubt on the conclusion that low capacity utilisation
was not the decisive factor causing injury. It was alleged
that fixed costs in the biodiesel industry were much
higher than the small proportion given above. However
they gave no evidence to support this allegation and so it
2.6. Lack of access to raw materials and vertical integration
is rejected. In any case fixed costs do not bear any
relation to capacity utilisation rates. Verification of the
(172) In the absence of any new comments concerning access
sampled companies gave a fixed cost to total cost of
to raw materials, recitals 141 to 142 of the provisional
production ratio that was between 3 % and 10 %
Regulation are hereby confirmed.
during the IP.
2.7. Double-counting
(167) It was also alleged in this respect that the overcapacity of
the Union industry was so high that even in the absence
(173) Recitals 143 to 146 of the provisional Regulation dealt
of imports it would not be able to be adequately
with the allegation that the system of ‘double-counting’,
profitable. No evidence was given for this allegation
where biodiesel made from waste oils counts twice
and the fact that the Union industry was profitable in
towards the blending mandates in some Member States,
2009 with a low capacity utilisation suggests that in the
has caused injury to the Union industry, or at least to
absence of dumped imports, their profitability would be
those Union producers who manufacture biodiesel from
even higher.
virgin oils.
(168) In addition it was argued that the reduction in capacity
(174) One interested party mentioned a comment by one
of the Union industry was in itself a cause of injury due
Union producer that during 2011 they lost sales to
to the costs of closure of plants and reductions in
other producers who manufactured biodiesel eligible for
capacity of plants that continued to operate. This
double counting.

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L 315/20
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Official Journal of the European Union
26.11.2013
(175) The negative impact on this one producer was however
2.8. Other regulatory factors
limited, temporary and only relevant for a part of the
investigation period, as the double counting scheme was
(180) Recitals 147 to 153 of the provisional Regulation address
adopted in the Member State in which the company is
allegations by interested parties that restrictions in
located only in September 2011. Given that the financial
Member States, such as quota systems and tax regimes,
performance of the sampled companies declined after
were designed to restrict imports from the countries
September 2011, and this company was included in
concerned, meaning that any injury caused to the
the sample, double counting cannot be considered a
Union industry, in particular in some Member States,
source of injury.
could not be due to imports.
(176) As the Union industry is composed of both companies
producing biodiesel from waste oils and benefiting from
(181) These arguments were provisionally rejected, among
double-counting in some Member States, and also of
other things because dumped imports from countries
companies producing biodiesel from virgin oils, the
concerned are present in most Member States. Besides,
movement in demand remains within the Union
after being imported to one Member State, these imports
industry. Due to a finite supply of used oils which are
could be transported and sold in other Member States as
needed for manufacturing double counting biodiesel, a
well.
large increase in production of double-counting
biodiesel is difficult. Therefore, there is still a strong
demand for first generation biodiesel. No significant
imports of biodiesel eligible for double-counting was
found during the investigation period, thereby
confirming that double-counting is shifting the demand
(182) One interested party noted the small amount of
within the Union industry and not generating demand
Argentinian biodiesel cleared through French customs
for imports. The Commission received no data from the
controls in 2011, and also the small amount declared
interested party to show that double counting biodiesel
as being imported into Germany in the same period.
had caused the price of virgin oil biodiesel to fall during
the period under consideration. In fact data shows that
double counting biodiesel has a small price premium
over virgin biodiesel, the price of which is linked to
mineral diesel.
(183) Firstly, as explained above, biodiesel cleared through
customs in one Member State may well be sold in
another Member State, making such data unreliable.
Second, the sampled companies in France and Germany
(177) The decline in performance of the Union industry, which
both were able to demonstrate the price competition
is composed of both types of producers, cannot be
between their production and imports from the
attributed to the double-counting regime in force in
countries concerned, and the injury that they were
some Member States. In particular, the fact that
suffering as a result.
companies in the sample producing double-counted
biodiesel are also showing a decline in performance, as
mentioned in recital 145 to the provisional Regulation,
shows that injury caused by dumped imports is being
suffered across the industry.
(184) Another interested party claimed that the withdrawal of
schemes designed to benefit the biodiesel industry in
many Member States lowered the revenue of biodiesel
(178) Several interested parties argued after definitive disclosure
companies during the period considered, thus leading
that the amounts of double-counted biodiesel were
to injury. They point to in particular the gradual with
underestimated. However, the amounts of double-
drawal of tax incentives in France, and taxes on ‘green
counted biodiesel available on the Union market were
fuels’ in Germany.
limited in relation to the total sales of biodiesel during
the period under investigation. Also, should a Member
State have double-counting in force, the biodiesel that
complies to be counted as double-counted is produced
in the Union and therefore demand remains within the
(185) However, there is no obvious coincidence in time
Union industry. No new evidence was provided that
between these changes and the deterioration in the
would change this conclusion.
financial performance of the Union industry. Many of
these incentives were directed at users of biodiesel, not
manufacturers, and most were still in force during the IP.
No evidence has been provided to show that the changes
(179) In the absence of any new comments concerning regu
in policy of Member States, moving as they have to
latory factors, recitals 143 to 146 of the provisional
mandatory blending requirements, has caused injury to
Regulation are hereby confirmed.
the Union industry.

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26.11.2013 Official
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Union L
315/21
(186) One Indonesian exporting producer noted the ongoing
(192) No comments were received from any importers or
DG Competition investigation into alleged submission of
traders of biodiesel after the publication of provisional
distorted prices by contributors to Platts oil and biofuels
measures.
products assessed prices and requested that the subject
this investigation be considered as a possible cause of
injury. This claim was denied as the investigation is
ongoing and no findings have been published.
(193) In the absence of any additional new comments as
regards the interest of unrelated importers/traders,
recitals 162 to 163 of the provisional Regulation are
hereby confirmed.
(187) In the absence of any new comments as regards the
policies of Member States, recitals 147 to 153 of the
provisional Regulation are hereby confirmed.
3. Interest of users and consumers
3. Conclusion on causation
(194) One Indonesian exporting producer alleged that the

proposed duties would increase the price of biodiesel,
(188) Imports of product concerned from the countries
and therefore reduce the incentive for consumers to
concerned were dumped during the IP and undercut
buy vehicles that operate on biofuels.
the sales of the Union industry. There is a clear
coincidence in time between the increasing volumes of
dumped imports and the deterioration of the situation of
the Union industry. The dumped imports were in direct
(195) That allegation is rejected. The main application of
competition with the Union industry’s production and as
biodiesel is to be blended into mineral diesel for sale
a result the Union industry lost profitability and market
to consumers, so that they do not need to buy a
share during the period under consideration. Whereas it
special vehicle that can run on pure biofuels.
is possible that other factors mentioned above have
affected the performance of the Union industry to a
certain extent, the fact remains that dumped imports
from the countries concerned are causing injury to the
Union industry.
(196) Although the price of the biodiesel element would rise, if
that biodiesel was imported from Argentina or Indonesia,
as stated in the provisional Regulation, given that the
proportion of biodiesel in the diesel sold to consumers
(189) No new evidence was provided to change that conclusion
is small, the increase in price is also small and not
that the effect of other factors, considered individually or
noticeable to the consumer.
collectively, was not such as to break the causal link
between the dumped imports and the injury suffered
by the Union industry. In the absence of any other
comments regarding the conclusion on causation,
(197) The possible effect of the measures on the final price of
recitals 154 to 157 of the provisional Regulation are
diesel to the consumer, which are expected to be small as
hereby confirmed.
set out above, will not undermine the objectives of the
Renewable Energy Directive (‘RED’).
G. UNION INTEREST
1. Interest of the Union industry
(198) No users or consumers, or groups or associations repre
senting users or consumers, commented on the
(190) In the absence of any comments regarding the interest of
provisional Regulation.
the Union industry, recitals 159 to 161 of the
provisional Regulation are hereby confirmed.
(199) In the absence of any additional comments regarding the
interest of consumers, recitals 164 to 166 of the
2. Interest of unrelated importers and traders
provisional Regulation are hereby confirmed.
(191) One Indonesian exporting producer alleged that the
proposed duties would have a negative impact on
importers and traders, but provided no evidence for
their allegation. In fact their claim stated the opposite,
4. Interest of suppliers of raw materials
which was that the duty could be passed on to users and
consumers in higher prices which would presumably lead
(200) In the absence of any comments regarding the interest of
in fact to no impact whatsoever on importers and
raw material suppliers, recitals 167 to 169 of the
traders.
provisional Regulation are hereby confirmed.

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L 315/22
EN
Official Journal of the European Union
26.11.2013
5. Conclusion on Union interest
(208) Therefore rather than taking the percentage profit, the
actual profit for these three years in EUR per MT sold
(201) No comments were received that would change the
has been calculated. For each year this has been taken to
analysis of the Union interest as set out in the
reflect 2011 prices and then averaged. Expressed as a
provisional Regulation, and therefore it is still in the
percentage of turnover, the target profit for the Union
Union interest that measures be imposed. Therefore,
industry in the IP is 11,0 %.
recitals 170 to 171 of the provisional Regulation are
hereby confirmed.
(209) The injury elimination margin has therefore been recal
culated on this basis.
H.

DEFINITIVE ANTI-DUMPING MEASURES
1. Injury elimination level
(202) Several interested parties contested the use of 15 % as the
(210) Following definitive disclosure, with regard to the calcu
target profit for the Union industry as set out in recital
lation of the injury margin, one interested party argued
175 of the provisional Regulation, stating that this was
that the 5,1 % import duty to which RBD palm oil
unrealistically high for the Union biodiesel industry to
imported into the EU is subject, should be removed
expect.
from the cost of production of the Union producers.
This argument is rejected as this duty represents a cost
for Union producers which import palm oil and should
therefore be taken into account.
(203) However most of these interested parties then suggested
replacing the target profit of 15 % with other data from
other time periods, or from other investigations, without
explaining why one time period, or one investigation,
was more appropriate than another.
(211) One Indonesian exporting producer challenged the calcu
lation of target profit of the Union industry and the use
of data from 2004 to 2006 and then made a suggestion
for calculation of the target profit using only the year
2004. However, the previous investigation against
(204) As explained in the provisional Regulation, the profit
imports from the United States determined that an
margin of 15 % was the profit, expressed as a percentage
average of the three years was more accurate than
of turnover, that the Union industry achieved in the
using 2004 alone. No arguments were brought forward
absence of dumped imports between 2004 and 2006.
that would lead to a different conclusion.
This was the last period where profit was made in the
absence of dumped imports as since 2006 they have
always been present on the Union market, first from
the USA and then from Argentina and Indonesia.
(212) Following definitive disclosure the complainants argued
that the target profit of 15 % as proposed at provisional
stage should be maintained. However the arguments
(205) However, the Union biodiesel market has matured
brought forward by the complainants do not relate to
significantly since 2004-06 in many respects. Between
the objective for which target profit is to be established,
2004 and 2006, dumped imports had a negligible
i.e. profit that was realised by the Union industry in the
market share and other imports were also low. During
absence of dumped imports. Their argument is therefore
the IP dumped imports had a market share of 19 %.
rejected.
During the period 2004-06 the Union industry
consisted of 40 companies, and now this has expanded
to over 200, which has raised the level of competition.
(213) In the absence of other comments concerning the injury
elimination level, the methodology described in recitals
176 to 177 of the provisional Regulation is hereby
(206) Between 2004 and 2006 consumption rose dramatically
confirmed.
from 2 million MT to 5 million MT, whereas in the
period under consideration consumption rose only
slightly, and capacity utilisation, which was 90
%
between 2004 and 2006, was 55 % in the IP.
2. Definitive measures
(214) In view of the conclusions reached with regard to
dumping, injury, causation and Union interest, and in
(207) As a consequence, it is considered appropriate to take
accordance with Article 9(4) of the basic Regulation,
into account the market developments described above
definitive anti-dumping measures should be imposed on
and to adjust target profit accordingly as to reflect the
imports of the product concerned at the level of the
profit that the Union industry could expect to achieve
lower of the dumping and the injury margins, in
under current market conditions.
accordance with the lesser duty rule.

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EN
26.11.2013 Official
Journal
of
the
European
Union L
315/23
(215) Anti-dumping duty rates have been established by comparing the injury elimination margins and
dumping margins. Consequently, the definitive anti-dumping duty rates, expressed on the CIF Union
border price, customs duty unpaid, are as follows:
Country Company
Dumping
Injury
margin
margin
Anti-dumping duty rate
Argentina Aceitera
General
Deheza
S.A.,
General
41,9 % 22,0
% 22,0
%
Deheza, Rosario; Bunge Argentina S.A.,
(EUR 216,64)
Buenos Aires
Louis Dreyfus Commodities S.A., Buenos
46,7 % 24,9
% 24,9
%
Aires
(EUR 239,35)
Molinos Río de la Plata S.A., Buenos Aires;
49,2 % 25,7
% 25,7
%
Oleaginosa MoreNo Hermanos S.A.F.I.C.I. y
(EUR 245,67)
A., Bahia Blanca; Vicentin S.A.I.C., Avel
laneda
Other cooperating companies 46,8
% 24,6
% 24,6
%
(EUR 237,05)
All other companies 49,2
% 25,7
% 25,7
%
(EUR 245,67)
Indonesia PT.
Ciliandra
Perkasa,
Jakarta 8,8
% 19,7
% 8,8
%
(EUR 76,94)
PT. Musim Mas, Medan 18,3
% 16,9
% 16,9
%
(EUR 151,32)
PT. Pelita Agung Agrindustri, Medan 16,8
% 20,5
% 16,8
%
(EUR 145,14)
PT Wilmar Bioenergi Indonesia, Medan; PT
23,3 % 20,0
% 20,0
%
Wilmar Nabati Indonesia, Medan
(EUR 174,91)
Other cooperating companies 20,1
% 18,9
% 18,9
%
(EUR 166,95)
All other companies 23,3
% 20,5
% 20,5
%
(EUR 178,85)
(216) However as the anti-dumping duty will also apply to
seeing a further substantial rise in imports before the
blends that include biodiesel (in proportion to their
imposition of provisional measures, imports dropped
biodiesel content by weight), as well as to pure biodiesel,
significantly. The conditions are therefore not met and
it will be more accurate, and more appropriate for the
no duties will therefore be collected on registered
correct implementation of the duty by Customs auth
imports.
orities of the Member States, to express the duty as a
fixed amount in euro per tonne net and apply this to the
pure biodiesel imported, or the proportion of biodiesel in
(219) The individual company anti-dumping duty rates
the blended product.
specified in this Regulation were established on the
basis of the findings of the present investigation.
Therefore, they reflect the situation found during that
(217) Recital 183 of the provisional Regulation noted that
investigation with respect to those companies. These
imports of biodiesel from the countries concerned was
duty rates (as opposed to the country-wide duty
subject to registration, so that if necessary duties could be
applicable to ‘all other companies’) are thus exclusively
collected up to 90 days prior to the imposition of
applicable to imports of product concerned originating in
provisional measures.
the countries concerned and produced by the companies
and thus by the specific legal entities mentioned.
Imported product concerned produced by any other
company not specifically mentioned in the operative
(218) This collection of duties on registered products is only
part of this Regulation, including entities related to
possible if the conditions set out in Article 10(4) of the
those specifically mentioned, cannot benefit from these
basic Regulation are met. Having checked the import
rates and shall be subject to the duty rate applicable to
statistics for imports made after registration, rather than
‘all other companies’.

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L 315/24
EN
Official Journal of the European Union
26.11.2013
(220) Any claim requesting the application of these individual
(225) In addition, important cross-compensation risks were
company anti-dumping duty rates (e.g. following a
identified with regard to these Indonesian exporters and
change in the name of the entity or following the
their customers as other products besides biodiesel, are
setting-up of new production or sales entities) should
also exported to the Union as well as due to the usual
be addressed to the Commission ( 1 ) forthwith with all
practice in this business of loans and swaps of biodiesel,
relevant information, in particular any modification in
CPO or indeed other products between companies.
the company’s activities linked to production, domestic
and export sales associated with, for example, that name
change or that change in the production and sales
entities. If appropriate, the Regulation will accordingly
(226) Therefore the above factors render the effective imple
be amended by updating the list of companies benefiting
mentation and monitoring of undertakings extremely
from individual duty rates.
burdensome if not impracticable. Consequently for the
reasons stated above, these undertaking offers cannot
be accepted.
(221) All parties were informed of the essential facts and
considerations on the basis of which it was intended to
recommend the imposition of a definitive anti-dumping
duty on imports of biodiesel originating in Argentina and
4. Definitive collection of provisional anti-dumping
Indonesia and the definitive collection of the amounts
duties
secured by way of the provisional duty (definitive
disclosure). All parties were granted a period within
(227) Following definitive disclosure, one interested party
which they could make comments on the definitive
claimed that at provisional stage some clerical mistakes
disclosure.
occurred in the calculation of the dumping margins and
that, in the absence of such mistakes, the dumping
margins would have been de minimis. As a consequence,
that interested party requested that no provisional anti-
(222) The oral and written comments submitted by the
dumping duties should be collected. This claim must be
interested parties were considered and taken into
rejected as the definitive anti-dumping duty is clearly
account where appropriate.
higher than the provisional duty.
3. Undertakings
(228) In view of the dumping margins found and given the
level of the injury caused to the Union industry, the
(223) Two Indonesian exporting producers offered similar price
amounts secured by way of the provisional anti-
undertakings in accordance with Article 8(1) of the basic
dumping duty, imposed by the provisional Regulation,
Regulation. It is noted that in view of the significant price
should be definitively collected,
variations of the raw material, the product is not
considered suitable for a fixed price undertaking. In this
context both companies proposed that the minimum
import prices (MIPs) are indexed regularly in relation to
the fluctuations of the prices of the crude palm oil (CPO)
HAS ADOPTED THIS REGULATION:
by applying a coefficient to this raw material cost.
Article 1
(224) In relation to the offers of two exporting producers, it is
noted that in order to establish a meaningfully indexed
1. A
definitive
anti-dumping
duty
is
hereby
imposed
on
MIP, this should take into account the numerous
imports of fatty-acid mono-alkyl esters and/or paraffinic
additional parameters that play a significant role and
gasoils obtained from synthesis and/or hydro-treatment, of
demonstrate the volatility of the biodiesel market.
non-fossil origin, in pure form or as included in a blend,
Biodiesel is a highly volatile market and the biodiesel
currently falling within CN codes ex 1516 20 98 (TARIC
business is influenced by various additional factors such
codes 1516 20 98 21, 1516 20 98 29 and 1516 20 98 30),
as the complexity of the biodiesel trading system, the
ex 1518 00 91 (TARIC codes 1518 00 91 21, 1518 00 91 29
price differential between gasoil and biodiesel, the vola
and
1518 00 91 30),
ex 1518 00 95
(TARIC
code
tility and evolution of the vegetable oil markets and the
1518 00 95 10), ex 1518 00 99 (TARIC codes 1518 00 99 21,
interdependence of the different types of vegetable oils as
1518 00 99 29 and 1518 00 99 30), ex 2710 19 43 (TARIC
well as the evolution of the USD/EUR exchange rate.
codes 2710 19 43 21, 2710 19 43 29 and 2710 19 43 30),
Such factors would require a very complex, multiple
ex 2710 19 46 (TARIC codes 2710 19 46 21, 2710 19 46 29
indexation on a daily basis for it to be suitable.
and
2710 19 46 30),
ex 2710 19 47
(TARIC
codes
Therefore the mere indexation only on CPO prices on
2710 19 47 21,
2710 19 47 29
and
2710 19 47 30),
a monthly basis, as offered, is considered inappropriate
2710 20 11, 2710 20 15, 2710 20 17, ex 3824 90 97 (TARIC
and will not achieve the desired result.
codes 3824 90 97 01, 3824 90 97 03 and 3824 90 97 04),
3826 00 10 and ex 3826 00 90 (TARIC codes 3826 00 90 11,
( 1 ) European Commission, Directorate-General for Trade, Directorate H,
3826 00 90 19 and 3826 00 90 30), and originating in
1049 Brussels, Belgium.
Argentina and Indonesia.

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EN
26.11.2013 Official
Journal
of
the
European
Union L
315/25
2. The
rate
of
the
definitive
anti-dumping
duty
applicable
to
4. In
cases
where
goods
have
been
damaged
before
entry
the product described in paragraph 1 and produced by the
into free circulation and, therefore, the price actually paid or
companies listed below, shall be as follows:
payable is apportioned for the determination of the customs
value pursuant to Article 145 of Regulation (EEC) No
2454/93 ( 1 ) the amount of anti-dumping duty, calculated on
the amounts set above, shall be reduced by a percentage
Country Company
Duty rate euro
TARIC
which corresponds to the apportioning of the price actually
per tonne net additional code
paid or payable.
Argentina Aceitera
General
Deheza
216,64 B782
S.A., General Deheza,
Rosario; Bunge Argentina
S.A., Buenos Aires
5. Unless
otherwise
specified,
the
provisions
in
force
concerning customs duties shall apply.
Louis Dreyfus Commodities
239,35 B783
S.A., Buenos Aires
Molinos Río de la Plata
245,67 B784
Article 2
S.A., Buenos Aires;
Oleaginosa MoreNo
The amounts secured by way of the provisional anti-dumping
Hermanos S.A.F.I.C.I. y A.,
duties imposed by Commission Regulation (EU) No 490/2013
Bahia Blanca; Vicentin
on imports of biodiesel originating in Argentina and Indonesia
S.A.I.C., Avellaneda
shall be definitively collected.
Other cooperating
237,05 B785
companies:
Cargill S.A.C.I., Buenos
Aires; Unitec Bio S.A.,
Article 3
Buenos Aires; Viluco S.A.,
Tucuman
Where any new exporting producer in Argentina or Indonesia
provides sufficient evidence to the Commission that:
All other companies 245,67 B999
Indonesia PT
Ciliandra
Perkasa,
76,94 B786
Jakarta
— it did not export to the Union the product described in
Article 1(1) during the investigation period (1 July 2011
to 30 June 2012),
PT Musim Mas, Medan 151,32 B787
PT Pelita Agung
145,14 B788
Agrindustri, Medan
— it is not related to any of the exporters or producers in
Argentina or Indonesia which are subject to the measures
imposed by this Regulation,
PT Wilmar Bioenergi
174,91 B789
Indonesia, Medan; PT
Wilmar Nabati Indonesia,
Medan
— it has actually exported to the Union the product concerned
Other cooperating
166,95 B790
after the investigation period on which the measures are
companies:
based, or it has entered into an irrevocable contractual
PT Cermerlang Energi
obligation to export a significant quantity to the Union,
Perkasa, Jakarta
All other companies 178,85 B999
Article 1(2) may be amended by adding the new exporting
producer to the cooperating companies not included in the
sample and thus subject to the weighted average duty rate of
the country concerned.
3. The
anti-dumping
duty
on
blends
shall
be
applicable
in
proportion in the blend, by weight, of the total content of fatty-
acid mono-alkyl esters and paraffinic gasoils obtained from
( 1 ) Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying
down provisions for the implementation of Council Regulation
synthesis and/or hydro-treatment, of non-fossil origin (biodiesel
(EEC) No 2913/92 establishing the Community Customs Code (OJ
content).
L 253, 11.10.1993, p. 1).

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L 315/26
EN
Official Journal of the European Union
26.11.2013
Article 4
This Regulation shall enter into force on the day following that 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, 19 November 2013.
For the Council
The President
L. LINKEVIIUS

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Document Outline

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