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22.2.2013 Official
Journal
of
the
European
Union L
49/29
COUNCIL IMPLEMENTING REGULATION (EU) No 158/2013
of 18 February 2013
reimposing a definitive anti-dumping duty on imports of certain prepared or preserved citrus fruits
(namely mandarins, etc.) originating in the People’s Republic of China
THE COUNCIL OF THE EUROPEAN UNION,
(4) On
9
November
2007,
the
Commission
made
imports
of
the same product originating in the PRC subject to regis
tration by Regulation (EC) No 1295/2007 of
Having regard to the Treaty on the Functioning of the European
5 November 2007 making imports of certain prepared
Union,
or preserved citrus fruits (namely mandarins, etc.) orig
inating in the People’s Republic of China subject to regis
tration ( 4 ) (‘Registration Regulation’).
Having regard to Council Regulation (EC) No 1225/2009 of
30 November 2009 on protection against dumped imports
from countries not members of the European Community ( 1 )
(5) It
is
recalled
that
safeguard
measures
were
in
force
(‘the basic Regulation’), and in particular Article 9 thereof,
against the same product until 8 November 2007. The
Commission imposed provisional safeguard measures
against imports of certain prepared or preserved citrus
Having regard to the proposal submitted by the European
fruits (namely mandarins, etc.) by Regulation (EC) No
Commission after having consulted the Advisory Committee,
1964/2003 ( 5 ). Definitive safeguard measures followed
by Regulation (EC) No 658/2004 ( 6 ) (‘the safeguard Regu
lation’). Both the provisional and definitive safeguard
Whereas:
measures consisted of a tariff rate quota i.e. a duty was
only due once the volume of duty free imports had been
exhausted.
1. PROCEDURE
(1) On
20
October
2007
the
European
Commission
(‘the (6) By
Regulation
(EC)
No
1355/2008
( 7 ) (‘the original Regu
Commission’) announced by a notice published in the
lation’) the Council imposed a definitive anti-dumping
Official Journal of the European Union the initiation of an
duty on imports of certain prepared or preserved citrus
anti-dumping proceeding concerning imports into the
fruits (namely mandarins, etc.) originating in the People’s
Community of certain prepared or preserved citrus
Republic of China.
fruits (namely mandarins, etc.) originating in the
People’s Republic of China (‘PRC’) ( 2 ). On 4 July 2008,
the Commission, by Regulation (EC) No 642/2008 (
(7) The
range
of
the
definitive
anti-dumping
duty
was

3 )
(‘the provisional Regulation’) imposed a provisional
between 361,4 and 531,2
EUR/tonne net product
anti-dumping duty on imports of certain prepared or
weight.
preserved citrus fruits originating in the PRC.
1.1. Xinshiji judgment
(2)
The proceeding was initiated as a result of a complaint
(8) By
judgment
of
17
February
2011
in
Case
T-122/09
—
lodged on 6 September 2007 by the Spanish National
Zhejiang Xinshiji Foods Co. Ltd and Hubei Xinshiji Foods Co.
Federation of Associations of Processed Fruit and
Ltd v Council of the European Union supported by European
Vegetables (‘FENAVAL’, previously named ‘FNACV’) (‘the
Commission (
complainant’) on behalf of producers representing 100 %

8 ) — (‘the Xinshiji judgment’) the General
Court annulled the original Regulation in so far as it
of the total Community production of certain prepared
concerns the applicants Zhejiang Xinshiji Foods Co.,
or preserved citrus fruits (namely mandarins etc.). The
Ltd and Hubei Xinshiji Foods Co. Ltd
complaint contained evidence of dumping of the
product concerned and of material injury resulting
there from, which was considered sufficient to justify
(9) The
General
Court’s
judgment
was
based
on
the
grounds
the initiation of a proceeding.
that the Commission breached the rights of defence by
not providing the information necessary for the
applicants to determine whether, in the light of the
(3) As
set
out
in
recital
12
of
the
provisional
Regulation,
the
structure of the market, the adjustment of export price
investigation of dumping and injury covered the period
to the ex-works level of the importer was appropriate in
from 1 October 2006 to 30 September 2007 (‘investi
that it made it possible to compare the export price and
gation period’ or ‘IP’). The examination of trends relevant
the Union industry price at the same level of trade. The
for the assessment of injury covered the period from
General Court also considered that the Commission
1 October 2002 to the end of the investigation period
(‘period considered’).
( 4 ) OJ L 288, 6.11.2007, p. 22.
( 5 ) OJ L 290, 8.11.2003, p. 3.
( 1 ) OJ L 343, 22.12.2009, p. 51.
( 6 ) OJ L 104, 8.4.2004, p. 67.
( 2 ) OJ C 246, 20.10.2007, p. 15.
( 7 ) OJ L 350, 30.12.2008, p. 35.
( 3 ) OJ L 178, 5.7.2008, p. 19.
( 8 ) OJ C 103, 2.4.2011, p. 21.

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L 49/30
EN
Official Journal of the European Union
22.2.2013
infringed the duty to state reasons as the reasons for a
product in a market economy third country, they had
measure must appear in the actual body of the measure
infringed the requirements of Article 2(7)(a) of the basic
and may not be stated in written or oral explanations
Regulation.
given subsequently when the measure is already the
subject of proceeding brought before the European
Union Courts.
(18) On
19
June
2012
a
notice
( 3 ) (‘the second reopening
Notice’) was published in the Official Journal of the
European Union. In the notice parties were informed
(10) In
April
2011
the
Commission
lodged
an
appeal
(C-
that, in view of the above-mentioned judgment of the
195/11 P) seeking to set aside the Xinshiji judgment.
Court, imports into the European Union of certain
Following the declaration of invalidity of the original
prepared or preserved citrus fruits (namely mandarins,
Regulation by the Court of Justice of the European
etc.) originating in the PRC were no longer subject to
Union (‘the Court’) on 22 March 2012 (see recital 16
the anti-dumping measures imposed by the original
below), the Commission withdrew its appeal as it became
Regulation, and that definitive anti-dumping duties paid
without object.
pursuant to that Regulation for the product concerned
should be repaid or remitted.
(11) On
3 December
2011 the
Commission published
a
notice ( 1 ) partially reopening the anti-dumping investi
(19) The
notice
also
partially
reopened
the
relevant
anti-
gation (‘the first reopening Notice’) in order to
dumping investigation concerning imports of certain
implement the General Court’s Xinshiji judgment. The
prepared or preserved citrus fruits (namely mandarins,
reopening was limited to determine whether, in the
etc.) originating in the PRC in order to implement the
light of the structure of the market, the adjustment of
above judgment of the Court.
export price to the ex-work level of the importer was
appropriate in that it made it possible to compare the
export price and the Union industry price at the same
(20) The notice set out that the reopening was limited in
level of trade.
scope to the selection of an analogue country, if any,

and the determination of the normal value pursuant to
Article 2(7)(a) of the basic Regulation to be used for the
(12) Simultaneously,
all
interested
parties
received
a
disclosure
calculation of any margin of dumping.
document with its enclosures explaining the reasons
behind the adjustment of the post-importation costs
which had been taken into account in calculating the
(21) Moreover,
by
the
same
notice,
interested
parties
were
invited to make their views known, submit information
price of products originating in the PRC.
and provide supporting evidence regarding the avail
ability of market economy third countries which could
(13) Interested
parties
were
given
the
opportunity
to
make
be selected to determine normal value pursuant to
their views known in writing and to be heard within
Article 2(7)(a) of the basic Regulation, including with
the time limit set out in the notice.
regard to Israel, Swaziland, Thailand and Turkey.
(14) All
parties
which
so
requested
within
the
above
time
(22) The
Commission
directly
informed
the
Union
industry
limit and which demonstrated that there were particular
and their association, the exporting producers, suppliers
reasons why they should be heard were granted the
and importers and their associations known to be
opportunity to be heard.
concerned, and the authorities of the third countries
concerned. Interested parties were given the opportunity
to make their views known in writing and to be heard
(15) The two applicant exporters, eight importers, two associ
within the time limit set out in the notice.
ations of importers and one association of producers
came forward as interested parties.
(23) All
parties
which
so
requested
within
the
above
time
limit and which demonstrated that there were particular
1.2. Analogue country judgment
reasons why they should be heard were granted the
opportunity to be heard.
(16) On
22
March
2012,
in
Case
C-338/10
— Grünwald
Logistik Service GmbH (GLS) v Hauptzollamt Hamburg-
Stadt (‘the analogue country judgment’) — the Court
(24) Eight
importers
and
one
association
of
importers
came
declared the original Regulation invalid ( 2 ).
forward as interested parties.
(17) The
Court
held
that
since
the
Commission and
the
2. PROCEDURE AFTER DISCLOSURE OF PROVISIONAL
Council had determined the normal value of the
MEASURES
product concerned on the basis of the prices actually
paid or payable in the European Union for a like
(25) Following
the
imposition
of
provisional
anti-dumping
product, without taking all due care to determine that
duties on imports of the product concerned originating
value on the basis of the prices paid for that same
in the PRC, several interested parties submitted
comments in writing. The parties who so requested
were also granted the opportunity to be heard.
( 1 ) OJ C 353, 3.12.2011, p. 15.
( 2 ) Judgement of the Court (third chamber) of 22 March 2012 in case
C-338/10, GLS v Hauptzollamt Hamburg-Stadt.
( 3 ) OJ C 175, 19.6.2012, p. 19.

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EN
22.2.2013 Official
Journal
of
the
European
Union L
49/31
(26) The Commission continued to seek and verify all
codes 2008 30 55, 2008 30 75 and ex 2008 30 90
information it deemed necessary for its definitive
(TARIC
codes
2008 30 90 61,
2008 30 90 63,
findings. In particular, the Commission completed the
2008 30 90 65, 2008 30 90 67 and 2008 30 90 69)
investigation with regard to Union (‘Community’)
and originating in the PRC.
interest aspects. In this respect, verification visits were
carried out at the premises of the following unrelated
importers in the Union:
(32) In
this
regard,
in
the
analogue
country
judgement
the
Court interpreted the statistics communicated by the
Commission to the Court on 27 July 2011 as data
— Wünsche Handelsgesellschaft International (GmbH &
relative solely to the product concerned. However, the
Co KG), Hamburg, Germany,
Commission has re-examined the full extent of each
CN code included in those statistics and it should be
— Hüpeden & Co (GmbH & Co) KG, Hamburg,
noted that they have a broader scope than the product
Germany,
under measures, since they included full CN codes
2008 30 55, 2008 30 75 and 2008 30 90. The statistical
— I. Schroeder KG. (GmbH & Co), Hamburg, Germany,
data only covering the product concerned or like product
for CN codes 2008 30 55 and 2008 30 75, for the
— Zumdieck GmbH, Paderborn, Germany,
abovementioned countries during the investigation
period are as follows:
— Gaston spol. s r.o., Zlín, Czech Republic.
Country
Volume of imports
(27) All
parties
were
informed
of
the
essential
facts
and
(tonnes)
considerations on the basis of which it was intended to
recommend the imposition of a definitive anti-dumping
PRC 49
791,30
duty on imports of the product concerned originating in
Thailand 666,10
the PRC and the definitive collection of the amounts
secured by way of the provisional duty. They were also
Turkey 151,20
granted a period of time within which they could make
representations subsequent to this disclosure.
Israel 4,80
Swaziland
0
(28) Some importers proposed a joint meeting of all
interested parties, pursuant to Article 6(6) of the basic
Regulation; however the request was refused by one of
(33) Under CN code 2008
30
90, the statistics included
them.
products other than the product concerned. As a
consequence, no conclusions can be drawn on imports
of the like product with regard to this CN code.
(29) The oral and written comments submitted by the
Therefore, it cannot be derived from the statistics that
interested parties were considered and taken into
the like product was imported during the investigation
account where appropriate.
period in significant quantities from either Israel or
Swaziland.
3. PRODUCT CONCERNED AND LIKE PRODUCT
(30) Subsequent
to
the
imposition
of
provisional
measures,
4. SAMPLING
two unrelated Union importers argued that certain
types of mandarins should be excluded from the defi
4.1. Sampling for exporting producers in the PRC
nition of the product concerned either because of their
sweetness level or because of their packing when
(34) Two
unrelated
EU
importers
disputed
that
the
Chinese
exported. In this respect, it is noted that these claims
exporting producers selected for the sample represented
were not accompanied with any type of verifiable
60 % of the total exports to the Union. Nevertheless, they
information and data proving that these types have char
were not able to provide any verifiable information that
acteristics that differentiate them from the product
could undermine the accuracy of the sampling
concerned. It is also noted that differences in packing
information submitted by the cooperating Chinese
cannot be considered as a critical element when
exporting producers and largely confirmed in the
defining product concerned, especially when formats of
course of the further investigation. This argument is
packing were already taken into account when defining
therefore rejected.
the product concerned as set out in recital 16 of the
provisional Regulation. These arguments are therefore
(35) Three Chinese cooperating exporting producers
rejected.
submitted representations claimed that their related
companies were exporting producers of the product
(31) The
measures
were
imposed
on
the
product
defined
in
concerned and should therefore be included in the
the original Regulation as follows: prepared or preserved
Annex of cooperating exporting producers. These
mandarins (including tangerines and satsumas), clemen
claims were considered warranted and it was decided
tines, wilkings and other similar citrus hybrids, not
to revise the relevant Annex accordingly. One unrelated
containing added spirit, whether or not containing
EU importer argued that exports made to the Union
added sugar or other sweetening matter, and as defined
through traders should automatically be allowed to
under CN heading 2008, currently falling within CN
benefit from the measures applicable to the Chinese

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L 49/32
EN
Official Journal of the European Union
22.2.2013
exporting producers. In this respect, it is noted that anti-
importers most recent data should be used and in
dumping measures are in the present case imposed on
particular the periods 2010-11 and 2011-12 were
products manufactured by exporting producers in the
suggested.
country under investigation that are exported to the
Union (irrespective of which company trades them) and
not to business entities engaged only in trading activities.
(41) A group of importers considered that the partial
The claim was therefore rejected.
reopening of the investigation is in breach of Article 266
of the Treaty on the Functioning of the European Union.
According to those importers, the case-law ( 1 ) mentioned
5. DUMPING
in the second reopening Notice should be recalled only if
measures are annulled or declared invalid due to an
5.1. Market economy treatment (MET)
erroneous injury determination. In their own words,
(36) Following the imposition of provisional measures, no
‘the Community institutions did not blunder at the
comments were submitted by the Chinese cooperating
stage of determining injury, but as early as assessing
exporting producer with respect to the MET findings.
whether the products concerned were dumped at all’.
In the absence of any relevant comments, recitals 29
As in this case the original Regulation was declared
to 33 of the provisional Regulation are hereby
invalid due to the determination of normal value, the
confirmed.
importers claimed that such case-law does not apply.
5.2. Individual treatment
(42) Finally,
several
importers
recommended
Turkey
to
be
used as analogue country. At a hearing, one importer
(37) In
the
absence
of
any
relevant
comments,
recitals
34
to
suggested contacting the authorities of Japan and
37 of the provisional Regulation concerning individual
Korea, as also in those countries there would also be
treatment are hereby confirmed.
companies which manufactured the like product during
the IP.
5.3. Normal value
5.3.1. Comments of interested parties following the second
5.3.2. Analysis of comments following the second reopening
reopening notice
notice


(38) Certain
importers
argued
that
Chinese
imports
would
be
(43) As
regards
the
many
claims
summarised
under
recital
38
necessary to cover Union demand, although one
above it should be underlined that the Commission
importer indicated that Spanish and Turkish production
decided to reopen the initial investigation in a limited
together would be sufficient to cover the Union market
manner, restricted to the possible identification of an
needs. One importer remarked that imposition of anti-
analogue country. It did not define a new investigation
dumping duties would have resulted in significant
period, contrary to the approach followed in the case
increases in the price of the product concerned.
that led to the judgment in Industrie des poudres sphériques
Increase in prices were also mentioned by other
v Council (Case C-458/98 P [2000] ECR I-8147). This
importers. Different factors were identified as cause for
was based on the consideration that given that anti
such increase like the decreasing availability of Chinese
dumping duties had been in place, any data collected
mandarins in the Union due to internal demand and
during a new investigation period would have been
demand from other markets, crop failures and labour
distorted by the existence of these antidumping duties,
shortage in the PRC. Another factor indicated was the
in particular with regards to the establishment of injury.
reduced competition in the Union (it is estimated that
The Commission considers that the points raised by the
currently there are only three Union producers, while in
parties on the alleged absence of dumping at the present
2000 there were eight). One importer complained that
point in time can be more appropriately discussed in the
anti-dumping measures would favour large trading
framework of an interim review pursuant to Article 11(3)
companies instead of the traditional ones, which have
of the basic Regulation. Whereas in the initial investi
been trading the product concerned with the PRC for
gation, the analysis on the existence of injury is carried
decades. This importer defends the existence of a
out ex post for the investigation period, the analysis of
license system based on pre-2001 data.
injury during an interim review is done in a prospective
manner, as the injury observed during the investigation
period of the review is likely to be influenced by the fact
(39) A
group
of
importers
claimed
that
the
Union
institutions
that an antidumping duty is in place.
should initiate a whole new investigation instead of
partially reopening the anti-dumping investigation
which had resulted in the imposition of measures
(44) The
parties
concerned
are
reminded
that
if
an
importer
which had been in force until the analogue country
or another party wants the measures to be fully reviewed,
judgment. This claim was based on the fact that those
it has the possibility to request the initiation of an
importers did not see sufficient evidence for dumping or
interim review, as prescribed in Article 11(3) of the
injury in the present situation of the market.
basic Regulation. The parties concerned have that possi
bility at any time as the one-year period since the
(40) Other
importers
submitted
that
they
disagreed
with
the
( 1 ) Case T-2/95 Industrie des poudres sphériques (IPS) v Council [1998] ECR
possible use of the IP data if a new dumping margin
II-3939 and Case C-458/98 P Industrie des poudres sphériques (IPS) v
would needed to be calculated. According to those
Council [2000] ECR I-08147.

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EN
22.2.2013 Official
Journal
of
the
European
Union L
49/33
imposition of definitive measures referred to in
(49) All
six
Turkish
producers
were
contacted,
five
of
them
Article 11(3) has elapsed. Any party that had lodged a
twice. Three did not reply at all, and the other three
request for review pursuant to Article 11(3) prior to the
informed the investigators that they were not
analogue country judgement will be contacted by the
producing the like product during the IP. Therefore,
Commission services to determine whether it wishes to
although these companies offered to cooperate, they
pursue its request.
were not in a position to provide the Commission
with the necessary data. This finding was corroborated
by a submission received from a German importer with
(45) Concerning
the
alleged
illegality
of
the
partial
reopening,
producing interests in Turkey, which stated that during
it should be noted that the mentioned case-law does not
the investigation period there was no production of the
imply that a partial reopening might take place only if it
like product in Turkey.
concerns determination of the injury suffered by the
Union industry. What is clarified in Case T-2/95 and
Case C-458/98 P is that ‘in the case of an act concluding
(50) Despite
the
absence
of
a
reply
from
the
Mission
of
an administrative proceeding which comprises several
Thailand, two Thai companies, from which updated
stages, its annulment does not necessarily entail the
addresses were obtained via the European Union
annulment of the entire procedure prior to the
Delegation in Bangkok, were also contacted, twice each.
adoption of the contested act regardless of the grounds,
Those two producers had already been contacted during
procedural or substantive, of the judgment pronouncing
the original investigation — but at the time, this had not
the annulment’ ( 1 ). Therefore it is irrelevant whether the
resulted in their cooperation. Also this time, one of the
annulment or the declaration of invalidity of a regulation
producers did not reply at all to the two requests while
relates to the determination of injury or the deter
the other replied it did not intend to cooperate in the
mination of the normal value.
investigation.
(46) In respect of the use of IP data, it should be recalled that
the second reopening Notice concerned a partial
(51) Despite the efforts of the Commission via the Mission of
reopening of the original investigation and not a new
Swaziland to the European Union and the Delegation of
investigation. Therefore, only data from the IP could be
the European Union in Swaziland, it has not been
relevant and should be examined, even more so as the
possible to identify one or several producers in
export prices used in the comparison would also be
Swaziland.
pertaining to that period. The claims for the use of
more recent data, therefore, have to be dismissed.
(52) In
view
of
the
suggestion
referred
to
in
recital
42
above,
cooperation was also requested from the authorities of
5.3.3. Investigation following the second reopening notice
Japan and the Republic of Korea and in parallel the
Delegations of the European Union in those countries
(47) In
the
judgement
referred
to
in
recital
16
above,
the
were requested to identify local producers of the like
Court specifically referred to four countries from which,
product, if any. The Korean authorities did not reply,
according to Eurostat data, there would have been
but the Commission managed, through the Delegation
significant imports into the Union under the CN codes
of the European Union to the Republic of Korea, to
2008 30 55, 2008 30 75 and ex 2008 30 90. These
obtain a name and address of a possible producer of
countries are Israel, Swaziland, Thailand and Turkey. In
the like product in the Republic of Korea. This
view of this, the Commission contacted the authorities of
producer was contacted once but it did not reply to
these countries via their Missions to the European Union.
the request for cooperation.
They were all contacted before the partial reopening of
the investigation and again at the time of reopening. The
Missions concerned, as well the Delegations of the
European Union to those four countries, were
(53) The Japanese authorities contacted possible Japanese
requested to identify possible domestic producers of the
producers, however, according to the Japanese auth
like product and, if any, to assist in obtaining their
orities, those companies did not want to cooperate in
cooperation.
the proceeding and also did not want their identities to
be forwarded to the Commission.
(48) Although
been
contacted
twice,
no
replies
were
received
from the Missions of Swaziland and Thailand to the
5.3.4. Conclusion on the investigation following the second
European Union. Replies were received from the
reopening notice
Missions of Israel and Turkey. The Turkish Mission
provided addresses of six alleged producers, while the
(54) Account taken of the comments made by the parties, the
Israeli Mission informed to the Commission services
analysis thereof and, in spite of significant efforts by the
that there had been no production of the like product
Commission services, the lack of cooperation from
in Israel during the IP (and that there is currently no such
potential third country producers, it was concluded that
production).
a normal value on the basis of the price or constructed
value in a market economy third country as prescribed
( 1 ) Case T-2/95 Industrie des poudres sphériques (IPS) v Council [1998] ECR
by Article 2(7)(a) of the basic Regulation could not be
II-3941.
determined.

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Official Journal of the European Union
22.2.2013
5.3.5. Comments of interested parties following the imposition
now by the company is considerably higher than the
of provisional measures
amount originally reported. It is noted that this new
claim is based simply on a declaration by a freight
(55) It is recalled that the normal value determination was
forwarder and does not reflect data relating to a real
based on the data provided by the Union Industry.
transaction. None of the other sampled exporting
This data was verified at the premises of the cooperating
producers questioned the figures used with respect to
Union producers.
ocean freight. Moreover, given the late submission, this
claim cannot be verified. In particular, the adjustment
(56) Following
the
imposition
of
provisional
measures,
all
requested does not relate to any data already on the
three Chinese sampled cooperating exporting producers
file. Following this claim the Commission has never
and two unrelated Union importers questioned the use of
theless reviewed the amount of the cost in question
Union industry prices for the calculation of normal value.
account taken of the importance of this particular cost
It was submitted that normal value should have been
to the EU export transactions reported by the company.
calculated on the basis of the PRC production costs
As a consequence, the Commission came to the
account taken of any appropriate adjustments relating
conclusion that it is more appropriate to use the
to the differences between the Union and the PRC
average ocean freight cost verified on-the-spot for all
markets.
the sampled Chinese companies. Consequently, the
company’s export price was adjusted accordingly.
5.3.6. Analysis of comments following the imposition of
provisional measures
(60) One other Chinese sampled cooperating exporting
producer highlighted two computation errors on the
(57) In
this
respect
it
is
noted
that
the
use
of
information
from a non-market economy country and in particular
calculation of its export price related to its submitted
from companies which have not been granted MET
export listings. The claim was considered warranted
would be contrary to the provisions of Article 2(7)(a)
and the producer’s relevant export price was revised
of the basic Regulation. This argument is therefore
accordingly.
rejected. It was also argued that data on prices from all
other importing countries or relevant published
information could have been used as a reasonable
(61) In
the
absence
of
any
other
comments
in
this
respect,
solution account taken of the lack of analogue country
recital 46 of the provisional Regulation is hereby
cooperation. However, such general information, in
confirmed.
contrast to the data used by the Commission, could
not have been verified and cross checked with regard
to their accuracy in line with the provisions of
5.5. Comparison
Article 6(8) of the basic Regulation. This argument is
therefore rejected. No other argument was submitted
(62) In
the
absence
of
any
comments
in
this
respect,
recitals
that could cast doubt on the fact that the methodology
47 and 48 of the provisional Regulation are hereby
used by the Commission is in line with the provisions of
confirmed.
Article 2(7)(a) of the basic Regulation and, in particular,
the fact that it constitutes in this particular case the only
remaining reasonable basis for calculation of normal
5.6. Dumping margins
value.
(63) In light of the above, the definitive dumping margins,
expressed as a percentage of the CIF Union frontier
5.3.7. Conclusion on normal value
price duty unpaid, are the following:
(58) In the absence of any other comments and the fact that
despite the significant efforts of the Commission services
to identify a cooperating producer in an analogue
— Yichang Rosen Foods Co., Ltd, Yichang, Zhejiang:
country, it has not been possible to obtain data from
139,4 %,
an analogue country producer for the investigation
period, recitals 38 to 45 of the provisional Regulation
are hereby confirmed.
— Huangyan No 1 Canned Food Factory, Huangyan,
Zhejiang: 86,5 %,
5.4. Export price
(59) Following
the
imposition
of
provisional
measures,
one
— Zhejiang Xinshiji Foods Co., Ltd, Sanmen, Zhejiang
Chinese sampled cooperating exporting producer
and its related producer Hubei Xinshiji Foods Co.,
submitted that its export price should be adjusted in
Ltd, Dangyang City, Hubei Province: 136,3 %,
order to take into account certain cost elements (in
particular ocean freight). In this respect it is noted that
this issue was dealt with during the on-the-spot verifi
— Cooperating exporting producers not included in the
cation both with regard to this company as well with
sample: 131 %,
regard to the other companies in the sample. On that
occasion, each company submitted information with
regard to the costs in question. The amount claimed
All other companies: 139,4 %.

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6. IMPLEMENTATION OF THE XINSHIJI JUDGMENT
(69) It
was
also
argued
that
a
legal
act
based
on
an
inadequate
statement of reason is, and remains, ineffective from the
6.1. Comments of interested parties
start and the intended measure can only become effective
by adopting a new legal act with a proper statement of
6.1.1. Premature reopening
reasons.
(64) The
exporters concerned and a group of importers
argued against the partial reopening prior to the
6.1.3. Inadequate disclosure
delivery of the judgment in Case C-338/10. It was
argued that reopening the investigation while the
(70) The
exporters concerned and a group of importers
validity of the original Regulation was challenged and,
claimed that the disclosure was not sufficient to
in the opinion of the parties concerned, the act was
remedy the legal errors identified by the General Court
likely to be declared void, breached the principles of
for the reasons set out below.
proportionality and of good administration in the light
of Article 41 of the Charter of Fundamental Rights of the
European Union as it unnecessarily placed an undue
(71) The exporters concerned together with a group of
burden on the parties concerned to devote significant
importers argued that the violation of Union law found
financial and personal resources to the reopened
by the General Court affected the entirety of the findings
procedure.
and the outcome of the injury margin calculation, which

required a new process to be launched taking into
account the most recent injury data.
(65) In
addition,
the
same
parties
also
argued
that
reopening
the investigation before the judgment in the appeal Case
C-195/11 P was premature and contrary to Articles 266
(72) Furthermore, the same parties argued that the
Commission failed to recognise correctly the scope and
and 264 TFEU and Article 60(2) of the Statute of the
consequences of its infringement. It was argued that,
Court of Justice alleging that the Commission was antici
contrary to the Commission’s interpretation, the legal
pating the success of its own appeal. Such initiation
infringements established by to General Court did not
contradicted the relationship between, on the one hand,
relate exclusively to the calculation of the 2 % uplift of
the Commission and the Council and on the other, the
the import costs of the Chinese products (post-
Court and it impaired the right to an effective court
importation costs) and the transport costs of the
remedy. The importers concerned requested that the
products produced by Union producers. The importers
Commission first await the final decision of the Court
concerned argued that those infringements related at the
before it reopens the anti-dumping proceeding to
very least to the entire determination of the injury
implement the judgment in question.
margin.
(66) The
exporters concerned and a group of importers
(73) In
this
context
it
was
argued
that
the
disclosure
sent
at
argued that the reopening violated Article 3 of the
the reopening failed to address the question of the
basic Regulation as it was based on the data collected
comparability of the level of trade and how the
during the investigation period (i.e. 1 October 2006 to
method chosen by the Commission for the comparison
30 September 2007) and not during a more recent
of the import and Union prices was justified against the
period.
background of the market environment concerned, i.e.
whether the products produced by Union producers
(67) A
group
of
importers
challenged
the
fairness
and
impar
and the imported goods are in fact in competition with
tiality of the Commission’s conduct pursuant to
each other ‘in the warehouse of the Hamburg importers’.
Article 41(1) of the Charter of Fundamental Rights of
The exporters concerned and a group of importers
the European Union on the grounds that the
argued that the information on the level of trade deter
Commission allegedly rejected an application by the
mination provided at the time of reopening remained far
Union importers to launch a full interim review, even
too general to enable the parties to understand why the
though the official Eurostat data already showed an
comparison of the import price and the Union industry
increase on a sustained and lasting basis of the import
price was done at the same level of trade and it largely
price.
left unexplained the factors which emerged from the
investigation on which that calculation was based. It
did not deal with the issue why the 2 % uplift in
6.1.2. Retroactivity
question, which contained neither the operating and
administrative expenses (SG&A) nor a profit margin of
(68) The
exporters concerned and a group of importers
argued that the reopening was destined to fail for the
the importers, was appropriate to achieve comparability
reason that the infringement of the rights of defence and
of the selling prices of the Union producers with the
import prices of the exporting Chinese producers.
the failure to state reasons in case of a definitive anti-

dumping regulation cannot be rectified in isolation and
retroactively. In particular, it was argued that the rights of
(74) The
same
parties
argued
that
no
findings
of
any
kind
defence of the interested parties were to be protected
were made regarding the assumption that the Union
during the ongoing anti-dumping proceeding, i.e. before
producers sold the goods exclusively via importers.
adoption of the measure, and the proper statement of
Also, it was argued that the underlying reasoning for
reasons for the definitive anti-dumping regulation was to
the selected level of trade that the Union producers
be provided no later than at the adoption of the original
sold exclusively to importers was refuted since
Regulation.
according to the disclosed information only 62 % of

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22.2.2013
the sales of Union producers went to the independent
truck and therefore could immediately be re-expedited to
importers. The parties argued that the Commission
customers without any further manipulation, which
appeared to ignore the fact that allegedly 38 % of the
reduced the handling charges by 50 % or 7 EUR/tonne.
Union production had not been sold through importers,
meaning that in respect of these sales imported products
were competing at a different level of trade. For this part
(80) A
group
of
importers
argued
that
the
Commission
over
of sales, it was argued, the method used by the
looked, for a percentage of the Union industry products
Commission to determine the injury margin was
which were in fact distributed via an importer, that the
inappropriate as the importers’ prices should have been
transport costs for the Union industry goods to the
adjusted by adding post-importation costs, selling,
importers’ warehouse were incurred only if the
general and administrative expenses and an appropriate
preserved mandarins had been ‘physically’ made
profit margin of the independent importer. In the light of
available in the warehouse of the importer concerned.
these corrections the injury margin would have been
In fact, however, the bulk of the products sold by the
reduced for 38 % of the Union goods, which would
Union producers via importers were delivered directly by
lead to an overall reduction in the injury margin and a
the Union producers to the importers’ customers. This
following substantial reduction in the anti-dumping
was claimed to procure a considerable cost advantage for
duties.
the Union producers compared to imported products
and, if it had been properly taken into consideration, a
smaller injury margin would have resulted than that
(75) As a result, the parties argued that the Commission failed
determined on the basis of the Commission’s calculation
to develop an appropriate method to determine the
method.
injury margin for all imports which would have taken
account of the actual market conditions. It was argued
that there was a need for differentiated consideration of
(81) The association of importers and some importers
the sales of the products of the Union producers for the
objected to the figure (EUR 90) used as a basis for the
determination of the injury margin in view of the
calculation of the transport costs. The parties claimed
different distribution channels of the Union producers.
that the transport costs chosen were too high, referring
probably to transport by truck. However, according to
the information of the parties, the majority of goods was
(76) The
parties
called
for
the
Commission
to
provide
a
transported by vessels, which is a much cheaper mode of
detailed description and analysis of the evidence verified
transport.
in respect of trade flows and related volumes supporting
its findings and to disclose that relevant information,
which was not confidential.
(82) The
parties
asked
for
an
explanation
concerning
the
inclusion of terminal handling charges and the costs
for trucking to the importer’s premises in the post-
(77) A
group
of importers
also
contested
the
‘stereotype
importation costs.
reference’ to the confidentiality of the data as a result
of which the exporting producers and Union importers
were barred from access to relevant sources necessary for
6.2. Analysis of comments
them to determine whether, in the light of the structure
of the market, the adjustment in dispute was appropriate
(83) In respect of the argument that the investigation should
in that it made it possible to compare the export price
not have been reopened while the validity of the original
and the Union industry price at the same level of trade.
Regulation had been challenged in Case C-338/10 (recital
The importers concerned argued that this claim was
64), the Commission explained that it acted under the
upheld by the General Court in paragraph 86 of the
presumption of legality.
Xinshiji judgment.
(84) In
respect
of
claims
concerning
the
premature
reopening
6.1.4. Transport costs
subject to the pending appeal Case C-195/11 P (recital
65) the Commission considers the argument without
(78) The
exporters
concerned
opposed
the
increase
of
the
object, given that the reopening was based on the
Union industry’s ex-works selling price to include the
findings of the General Court. Furthermore, the appeal
costs of delivering to the importer’s warehouse on the
has in the meantime been withdrawn.
grounds that it goes against the concept of internal
market and that the trade defence measures are not
meant to remedy cost disadvantages of the Union
(85) In
respect
of
the
claims
for
a
new
investigation
it
has
to
industry due to the location of its production facilities.
be underlined that the partial reopening has as its
objective to remedy only of the violation of the rights
of defence identified by the General Court, not to reopen
(79) The
exporters concerned and a group of importers
the entire proceeding. However, the Commission will
argued that the Commission should have taken into
advise the parties concerned that they have the possibility
account the fact that the importers had higher trans
to request the initiation of an interim review, as
hipment costs because the Chinese products were
prescribed in Article 11(3) of the basic Regulation, if
delivered in containers, while the products produced by
they want the Institutions to verify their claim that on
Union producers were palletised for transportation by
the basis of more recent data, there is no more injury.

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(86) With regards to the claim that the injury analysis should
(91) As
regards
the
claims
concerning
the
deficiency
of
the
be based on more recent data (recital 66), it is observed
disclosure document of 5 December 2011 in respect of
that any more recent data will be influenced by the fact
the explanation of level of trade applied in this case (in
that an antidumping duty has been in place. Therefore,
particular, recitals 73 to 76), the parties were provided
the appropriate instrument to analyse more recent data is
with additional information and explanation at several
an interim review as prescribed in Article 11(3) of the
occasions, namely in points 4 and 5 of the disclosure
basic Regulation, and not a new investigation (see also
document of 5 December 2011 as well as during the
recital 43 above).
hearings of 29 February 2012.
(87) As regards the doubt concerning the impartiality and
(92) For
the
sake
of
full
clarity
on
this
point,
the
findings
fairness of the proceeding (recital 67), this is based on
concerning the level of trade are summarised as
a misunderstanding that the Commission rejected the
follows: (i) The investigation showed that the canned
request for an interim review. The Commission’s
mandarins are only produced in one Spanish region (Val
Services informed the respective parties by letter of
encia) and are mainly sold in Germany and United
6 September 2011 that on the basis of the information
Kingdom. The proportion of Union sales to Germany
provided to that date no decision could be taken whether
and United Kingdom was established to represent 62 %
or not a review could be initiated. The points which
of the total Union sales. (ii) On the basis of the verified
required further clarification or evidence were outlined.
data it was established that during the IP the Union
The parties were informed about this at the hearing of
producers and the Chinese exporters sold essentially to
29 February 2012 and were invited to continue the
the same customers, i.e. to traders or distributors. (iii) For
discussion with the relevant Commission service. The
these reasons, the price comparison between the imports
Commission services will inform them that they can
from the exporting producers and the sales of the Union
pursue their request as of the date of entry into force
producers was made for the exporting producers at
of this Regulation. The one-year period provided for in
frontier level (CIF) and for the Union producers at
Article 11(3) of the basic Regulation does not apply in
factory level (ex-works) adjusted to the importers’ ware
the case at hand, as this would run counter its objective,
houses. (iv) This methodology required the following
which is that there should be a minimum amount of
adjustments: on the one hand, a post-importation costs
time between the initial investigation period and an
adjustment of the Chinese CIF export prices to bring the
interim review. In the present case, this minimum
goods from the port to the importers’ warehouses; this
amount of time has been observed.
adjustment, fixed at 2 %, was based on the collected and
verified invoices and the respective calculation was
disclosed to the interested parties in the annex to the
(88) As regards the argument concerning the retroactive
disclosure document of 5 December 2011. On the
remedy of the breach of rights of defence (recital 68)
other hand, the Union ex-works prices were increased
the Commission considers that as a consequence of the
to reflect the cost of freight to bring the goods from
judgement of the General Court, the investigation has
the producers (Valencia) to the importers’ premises
been reopened at the point where the illegality
(Germany and United Kingdom). This freight adjustment
occurred. The parties have now a possibility to exercise
was calculated based on the established transport costs
their rights to the extent they were prevented from doing
from Valencia to Hamburg. Given that not all sales of
as established by the General Court. Furthermore, the
Union producers were delivered to Germany and United
duties will be imposed only for the future. Against this
Kingdom, this average was lowered in proportion of the
background the Commission considers that there is no
share of sales to Germany and United Kingdom (62 %)
issue of retroactive remedy as claimed by the parties and
and in proportion of direct sales.
this argument of the parties has to be therefore
dismissed.
(93) As regards the proportion of direct sales of the Union
producers, it has been in a range of between 2 % and
(89) As regards the argument concerning the inadequate
12 % during the IP. The precise percentage cannot be
statement of reasons (recital 69), the very purpose of
disclosed for confidentiality reasons.
the reopening is to remedy the lack of reasoning and
to base the new legal act on a complete statement of
reasons. It is therefore considered that this argument of
the parties is addressed.
(94) Furthermore,
it
was
argued
that
a
differentiated
approach
in determination of the appropriate level of trade in
respect of the direct sales of the Union producers
(recital 72) should have been developed. In this respect
(90) In respect of the scope of the judgment (recital 72) the
it is to be noted that based on the verified findings none
purpose of the reopening is to establish the appropriate
of the Chinese imports were sold directly during the IP.
level of trade, and in particular to clarify why the post-
Since there were not matching direct sales on the side of
importation cost adjustment of the CIF export price was
the Chinese exports, it was not possible to develop a
necessary to ensure that the comparison of the export
differentiated approach for establishing a level of trade
price and of the Union industry price was done at the
for the proportion of direct sales of Union producers.
same level of trade. The argument of the parties has to
Instead, for the purpose of the injury margin calculation,
be, therefore, dismissed.
the direct sales of Union producers were adjusted back to

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22.2.2013
the ex-works level and subjected to the freight
information and offered to examine on request of the
adjustment described in recital 92 point (iv) above.
interested parties how the actual data in the confidential
Against this background, the respective claim of the
file was used by the Commission services responsible for
parties has to be dismissed.
the investigation and to inform the parties whether in his
view the data were correctly reflected in the findings. The
parties did not request it. For these reasons the
Commission considers that the requirement to disclose
(95) As regards the claim of the parties that the adjustment of
all but confidential information was met. Furthermore,
the CIF export price should have included the SG&A and
given that the data under assessment is more than five
a reasonable profit margin (recital 73) it is noted that had
years old, the Commission considers that it can disclose
the Commission adjusted the export CIF price by adding
at this stage that the percentage of direct sales is between
SG&A and profit, it would have brought the sales of
2 % and 12 %.
imported goods to the retailer level. In such case the
comparison between the Chinese export prices and the
Union sales prices would have been carried out at
different levels of trade. For this reason, the claim of
the parties has to be dismissed.
(99) Concerning the objection of the parties to the freight
adjustment of the Union ex-works selling price (recital
78) the Commission considers the adjustment in
question was made to bring the goods to the importer’s
(96) As regards the argument of the parties that it stems from
warehouse, i.e. to the same level of trade as the Chinese
the disclosure document of 5 December 2011 that 38 %
exports. This adjustment was based on the specific
of sales of Union producers in the IP were direct sales
circumstances of the relevant market where the canned
(recital 74), it was explained to the parties at the hearings
mandarins are only produced in one Spanish region (Val
of 29 February 2012 that this conclusion was mistaken.
encia) and are mainly sold in Germany and United
The figure of 62 % of Union industry sales that were
Kingdom. It was made to achieve the fair comparison
made in Germany and United Kingdom relates to the
between export price and the Union price at the same
geographical distribution of the sales and has no
level of trade, not to offset the claimed cost disadvantage
relevance as regards the identification of the type of
of the Union producers due to the location of their
customer, and thus as regards the identification of
production facilities. The argument of the parties is
direct sales. It may only be deduced from this fact, and
therefore dismissed.
it is confirmed, that the remaining 38 % of the sales of
Union producers were made outside Germany and the
United Kingdom. Since the parties’ assumption on the
level of trade of 38 % of sales of Union producers is
(100) Concerning the argument that the Commission should
incorrect, the subsequent claim based on this assumption
have taken into account the higher costs of importers
concerning the need to recalculate the injury margin has
because the Chinese products were delivered in
to be also dismissed.
containers while the Union industry products were
palletised which resulted in the reduction of handling
charges by the Union producers (recital 79), it is noted
that the adjustments made covered only the cost of
(97) Regarding
the
claim
on
detailed
disclosure
of
trade
flow
bringing the goods to the importer’s warehouse. The
and related volumes (recital 76), it is recalled that the
subsequent costs incurred in the context of the
facts and figures underlying the choice of methodology
shipment of the goods to the retailers are to be borne
to determine the level of trade in this case have been
after the defined level of trade and cannot be therefore
addressed in the points 3 to 7 of the disclosure
taken into account. For this reason the argument of the
document of 5 December 2011. The parties are
parties is dismissed.
referred to this information as well as the explanation
provided at the hearings of 29 February 2012. For sake
of clarity, the underlying trade flows are explained in
detail in recital 92 above.
(101) Concerning the argument that the transport costs of the
Union producers should have been reduced to take into
account cases where the products were delivered directly
(98) As
regards
the
argument
on
a
‘stereotype
reference
to
to the customers of importers as claimed by the latter
confidentiality’ (recital 77), the Commission considers
(recital 80), it is recalled that the freight adjustment of
that the information that was kept confidential related
the Union ex-works sales price was based on the estab
to the (i) percentage of direct sales; and (ii) the
lished costs of physical delivery to the warehouse in
information used for the calculation of the 2 % uplift
Hamburg (EUR 90) based on collected invoices,
based on invoices and data gathered during the verifi
because the warehouse Hamburg is the appropriate
cation visit. In this respect it is noted that the invoices
level of trade for comparing export price and prices of
constitute information confidential by nature. The non-
the Union product. The freight adjustment is not justified
confidential summary of the latter has been provided in
on the ground that it includes total transport costs
the annex to the disclosure document of 5 December
between the Union producer and the retailer (which
2011. As regards the direct sales the Hearing Officer at
would be higher than the costs for delivery to the ware
the joint hearing of 29 February 2012 confirmed that
house), but on the ground that in the light of the specifi
actual figures about direct sales are confidential
cities of the market for the product concerned, the

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warehouse in Hamburg is the appropriate level of trade.
opportunity to comment and to be heard. All arguments
In this context, the argument raised by the parties
raised have been addressed and duly taken into account.
appears immaterial.
(109) Account taken of the comments made by the parties and
(102) The parties claimed that the applied freight adjustment
the analysis thereof it was concluded that the arguments
was too high because it was based on the transport costs
and facts raised by the interested parties did not show a
by truck (recital 81). In this context, it is recalled that the
need to modify the contested injury margin calculation.
freight adjustment was based on the established costs of
physical delivery to Hamburg, which included both truck
and boat. Therefore, the adjustment requested by the
(110) Therefore, the injury margin determined in the original
parties had already been included in the calculation of
investigation is hereby confirmed.
freight cost to Hamburg. It was therefore not necessary
to verify the data submitted by the parties during the
hearing, as during the original investigation, the costs
(111) On the basis of the above it was concluded that the
for delivery to Hamburg had been established on the
implementation of the Xinshiji judgment should take
basis of the verified data of the Union producers.
the form of reimposing the definitive anti-dumping
duty for the applicants in the case in question.
(103) Regarding the comment made by the applicant
7.
concerning the calculation of the post-importation cost
INJURY
(recital 82), it was stated that, as explained in paragraph
7.1. Union production and Union industry
9 of the disclosure document sent on 5 December 2011,
both terminal handling charges and the costs for trucking
(112) In the absence of substantiated comments, the findings
to the importer’s premises were included in the calcu
set out in recitals 52 to 54 of the provisional Regulation
lation. No ocean or insurance freights were included in
are confirmed.
terminal handling charges as these costs were already
included in the CIF price gathered and verified during
the on-spot verifications at the exporter’s premises.
7.2. Union consumption
Thus, if the Commission had included those costs in
the calculation of the post-importation costs this would
(113) One of the exporting parties argued that there is a
have implied double-counting.
discrepancy between the level of the consumption set
out in the safeguard Regulation and the level set in the
provisional Regulation. It is underlined that the difference
6.3. Procedure
in the level of consumption was basically due to the
different product scope in the current investigation and
(104) On 5 December 2011 the Commission submitted a
to the different number of Member States in those two
disclosure document with facts and figures relating to
investigations. No further and substantiated information
the grounds on which the General Court annulled the
was received in this respect. The findings set out in
measures. All interested parties were invited to comment.
recitals 55 to 57 of the provisional Regulation are
therefore confirmed. As a corollary, the subsequent
parts of the analysis which draw on consumption are
(105) On 29 February 2012 the Commission held hearings
also confirmed in this respect.
with all parties that requested so, including a joint
hearing with the Hearing Officer of the exporters
concerned and a group of importers.
7.3. Imports from the country concerned
7.3.1. Volume and market share of imports of the product
concerned
(106) On 26 March 2012 one of the interested parties
informed the Commission that in view of the judgment
(114) In respect of the market share some interested parties
in Case C-338/10 it considered the partial reopening
opposed the Commission statement set out in recital
concerning post-importation cost without purpose.
58 of the provisional Regulation that indicated an
increase of the market share of the dumped imports.
They argued that contrary to the Commission findings
(107) On 17 July 2012 the Commission responded that in the
the market share of imports from the PRC decreased. The
light of the reopening of 19 June 2012 it was considered
evaluation of imports from the PRC in volume and
that both partial reopenings are still pending and none of
market share was verified. As set out in said recital
these investigations had become without purpose.
there was only one year where the market share of the
Chinese imports decreased. For the rest of the period
examined the market share of imports from the PRC
6.4. Conclusion
remained consistently high. Therefore the findings
presented at the provisional stage are confirmed.
(108) The Xinshiji judgment of General Court has been imple
mented by providing additional reasoning, information
and explanation to the parties on the reopened point
(115) Some parties argued that post-IP volumes should also be
of the original investigation. The parties were given
examined to assess whether Chinese imports are

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increasing. It is to be noted that trends on imports from
reduction in production and capacity, would have under
the PRC were evaluated for the period 2002/03 to
normal circumstances led to a significant improvement
2006/07 and a clear increase was observed. In
in the Union producers’ overall situation, including
accordance with the provisions of the basic Regulation,
production, capacity utilisation, sales, and price/cost
post-IP events are not taken into account, except in
differentials. Instead, volume indicators have remained
exceptional circumstances. In any event, as stated below
weak, stocks have increased substantially and financial
in recital 136 the level of imports post-IP was examined
indicators have continued to be in the red — some
and was found to be significant.
even worsening.
7.3.2. Price undercutting
(121) On this basis, it is considered that the conclusions
regarding the material injury suffered by the Union
(116) Three cooperating exporting producers contested the
industry as set out in the provisional Regulation are
Commission’s findings on undercutting. One contested
not altered. In the absence of any other substantiated
the methodology used to calculate undercutting and
information or arguments, they are therefore definitively
requested an adjustment to reflect costs borne by
confirmed.
traders for their indirect sales. Where justified, calcu
lations were adapted. The revised comparison showed
that, during the IP, imports of the product concerned
were sold in the Union at prices which undercut the
8. CAUSATION
Union industry’s prices by a range of 18,4 % to 35,2 %
8.1. Effect of the dumped imports
based on the data submitted by the sampled cooperating
exporting producers.
(122) Some parties argued that the volume of the Chinese
imports had been stable since 1982 and that therefore
they could not have caused injury as explained in the
7.4. Situation of the Union industry
provisional Regulation (see recital 58). Indeed, as

explained above in recital 114, imports from the PRC
(117) Two importers and the importers’ association contested
during the period examined have increased significantly
the duration of the packing season indicated in recital 79
to the detriment of the Union industry market share.
of the provisional Regulation. They argued that the
Moreover, the argument refers to the trend in imports
packing season in Spain lasts only three months
that exceed well above the period in question therefore
instead of four to five as indicated in the provisional
the argument is rejected.
Regulation. However this allegation is linked to the
crop (variable by nature) and to the quantity produced
and in any case has no impact on the injury factors as
(123) As mentioned in recital 116 above, it is definitively
analysed by the Commission services.
concluded that during the IP, the prices of imports
from the sampled Chinese exporting producers
undercut the average Union industry prices by
percentages ranging from 18,4
% to 35,2
%. The
(118) In the absence of any other substantiated information or
argument concerning the situation of the Union industry,
revision of the undercutting margin leaves unaffected
recitals 63 to 86 of the provisional Regulation are hereby
the conclusions on the effect of the dumped imports
confirmed.
set out in recitals 100 and 101 of the provisional Regu
lation.
7.5. Conclusion on injury
8.2. Exchange rate fluctuations
(119) Following disclosure of the provisional Regulation, some
(124) After the imposition of the provisional duties some
importers and some exporting producers claimed, with
importers further argued the negative influence of the
reference to recitals 83 to 86 of the provisional Regu
exchange rate on the price level. They argued that the
lation, that data used by the Commission to establish the
exchange rate level is the main factor that caused injury.
injury level was neither correct nor objectively evaluated.
Nevertheless, the Commission’s assessment refers merely
They argued that almost all injury-related indicators
to a difference between price levels with no requirement
showed positive trends and that therefore no evidence
to analyse the factors affecting the level of those prices.
of injury can be found.
As a consequence a clear causal link between the high
dumping level and the injury suffered by the Union
industry was found and therefore recital 95 of the
(120) In this regard, it is noted that even if some indicators
provisional Regulation can be confirmed.
show small improvements, the situation of the Union
industry has to be evaluated as a whole and in
consideration of the fact that safeguard measures were
8.3. Supply and price of raw materials
in place until the end of the investigation period. This
matter was explored at length in recitals 51 to 86 of the
(125) Some interested parties argued that injury is not caused
provisional Regulation. The deep restructuring process
by dumped imports but rather by the scarce supply of
which these measures allowed for, resulting in a large
fresh fruit i.e. the raw material for canned mandarins.

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(126) However, official data from the Spanish Ministry for
(132) Some parties submitted comments on the increased costs
Agriculture confirm that the quantity available for the
of production and inability of the Union industry to
canning industry is more than sufficient to cover all
reduce them. Certain cost items (such as energy) have
the production capacity of the Spanish producers.
increased, but their impact is not such as to break the
causal link in a context where a very significant amount
of dumped Chinese exports are depressing sales and
(127) Producers compete to a certain extent for fresh fruit with
production (thereby increasing the Union industry’s unit
the direct fresh produce consumer market. However, this
costs) and suppressing and depressing Union industry
competition does not break the causal link. A clear,
prices.
significant reason for the Union industry’s relatively
low production, sales and market share is rather to the
pressure of the massive imports from the PRC at very
8.6. Aid schemes
low prices. In this situation, and considering that the
market price is dictated by the imports covering more
(133) It was alleged that the EC aid schemes caused artificial
than 70 % of the market, which engage in price under
growth of processing in the EC and then encouraged
cutting, suppression and depression, it would be
reduced levels of raw material supply for the product
uneconomic to produce more without reasonable expec
concerned. This allegation was of a general nature and
tations for selling the product at prices allowing for a
was not sufficiently substantiated. In any event, the
normal profit. Therefore the Spanish industry could
schemes in question were modified in 1996 when the
reasonably provide significantly higher quantities under
aid was allowed to the farmers instead than to the
the condition that the market price would not penalise
processors of the product concerned. The Commission’s
their economic results.
analysis has not detected any residual effects during the
investigation period which could break the causal link.
Regarding supply, reference is made to recitals 128 and
(128) Another fact confirming this analysis is the consistent
129 above.
existence of a significant amount of stocks by Union
producers, underlining that the Union industry’s
injurious situation occurred not because of insufficient
8.7. Conclusion on causation
production, but due to production that cannot be sold
due to the pressure of Chinese imports.
(134) In the absence of any further new and substantiated
information or arguments, recitals 87 to 101 of the
provisional Regulation are hereby confirmed.
(129) As an agricultural product, the price of the raw material
is subject to seasonal fluctuations due to its agricultural
nature. Nevertheless, in the five-year period analysed,
(135) In the light of the above, the provisional finding of the
which included harvests with lower and higher prices,
existence of a causal link between the material injury
the Commission observes that injury (e.g. in the form
suffered by the Union industry and the dumped
of financial losses) occurs irrespectively of these fluctu
Chinese imports is confirmed.
ations and therefore the economic results of the Union
industry are not directly correlated to such seasonal fluc
tuations.
9. UNION INTEREST
9.1. Developments after the investigation period
8.4. Quality differences
(136) As from 9 November 2007 imports from the PRC were
(130) Some parties claimed that the Chinese product was of a
subject to registration pursuant to the Registration Regu
higher quality than the Union production. However, any
lation. This was done with a view to the possible retro
price differences resulting therefrom were not sufficiently
active imposition of anti-dumping duties. Consequently
substantiated, and there is no evidence that the alleged
and exceptionally, developments after the IP have also
consumer preference for Chinese products would be so
been analysed. Eurostat data confirms that imports
intense as to be the cause of the deteriorated situation for
from the PRC remain significant and this has been
the Union industry. In any case such alleged price
corroborated by certain importers. The volume for the
differences would favour the Chinese product, increasing
last 10 months after the IP reached a level of 74 000
the undercutting/underselling level. In the absence of any
tonnes at stable low prices.
further new and substantiated information or argument,
recital 99 of the provisional Regulation is hereby
confirmed.
9.2. Ability of Union producers to supply the Union
market
8.5. Cost increases
(137) A number of parties commented on the low level of the
Spanish production, which they claimed is unable to fully
(131) Some parties argued that extraordinary cost increases by
supply the Union market. While it is correct to state that
some producers were at the root of the injury. These
in the present situation the Union industry does not
allegations were not sufficiently substantiated. The
supply the overall Union market, it should be noted
Commission analysis did not detect any such events
that this fact is linked to the effect of injurious
which could reverse the assessment of causation or
imports, as explained above. In any event, the intended
affect the calculation of the injury elimination level.
effect of the measures is not to close the Union market

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to Chinese imports, but to remove the effects of injurious
9.5. Interest of users/retailers
dumping. Given, inter alia, the existence of only two
sources of supply of these products, it is considered
(145) One user, representing less than 1 % of consumption,
that in the event definitive measures are imposed,
submitted generic comments on the reduced availability
Chinese products would continue to enjoy a significant
of mandarins in the EU and on the superior quality of
demand in the Union.
the Chinese product. He was invited to further cooperate
providing individual data but declined and did not
substantiate his allegations. Another retailer, a member
9.3. Interest of the Union industry and suppliers
of the main importer’s association, generally opposed a
price increase. No other submission concerning the
(138) One importers’ association alleged that any anti-dumping
interest of users/retailers was received in the course of
measures without any limitation of quantities would not
the investigation. In this situation and in absence of any
help protect the Spanish industry but would auto
substantiated comments from users/retailers, the
matically trigger illegal trading activities. This is an
conclusions made in recitals 109 to 112 of the
argument which rather points to the need for the insti
provisional Regulation are hereby confirmed.
tutions to ensure proper monitoring of the enforcement
of measures, rather than against the benefit measures
could have for Union producers.
9.6. Interest of consumers
(139) Another importer argued that imposition of anti-
(146) Contrary to what was claimed by one importer, the
dumping measures would not improve the situation of
interest of consumers was taken into consideration at
the Spanish producers, due to the existence of large
the provisional stage. The Commission’s findings were
stocks built by the importers in the Union, which
outlined in recitals 113 and 114 of the provisional Regu
would be able to satisfy the market demand in the
lation. Other parties suggested that the impact on
nearest future. The size of the stocks and the
consumers would be significant. However, no
phenomenon of stockpiling were supported by another
information was provided that could cast doubt on the
importer. These comments confirm the Commission
findings in the aforementioned recitals. Even if duties
analysis in the provisional Regulation and elsewhere in
were to lead to an increase in consumer prices, no
this Regulation. However, it is recalled that measures are
party has disputed the fact that this product is a very
intended to provide relief from injurious dumping over a
small part of household food expenditure. Therefore in
period of five years — not only one.
the absence of any comments from consumers and of
any further new and substantiated information these
recitals are confirmed.
(140) In the absence of any other new and substantiated
information or argument in this respect, the conclusion
made in recitals 103 to 106 and recital 115 of the
9.7. Conclusion on Union interest
provisional Regulation regarding the interest of the
Union industry are hereby confirmed.
(147) The additional analysis above concerning the interests at
stake has not altered the provisional conclusions in this
respect. Data of the sampled cooperating importers were
9.4. Interest of unrelated importers/traders in the
verified and confirmed that the canned mandarins sector
Union
represents for them less than 6 % of their total turnover
and that they achieved, in average terms a comfortable
(141) Cooperating importers expressed a general interest in
result during both the investigation period and the period
maintaining two sources of supply of the product
2004-08 examined, so the impact of the measures on
concerned, namely Spain and PRC, in order to
importers will be minimal. It has been also ascertained
maintain the security of supply at competitive prices.
that the financial impact on the final consumer would be
negligible, considering that marginal quantities per capita
(142) Nevertheless the majority of the importers, should
are bought in the consumer countries. It is considered
definitive measures be imposed, would prefer a measure
that the conclusions regarding the Union interest as set
which contains also quantitative elements. This is not
out in the provisional Regulation have not changed. In
considered adequate, as explained below in recital 156.
the absence of any other comments, these conclusions
set out in the provisional Regulation are therefore defini
tively confirmed.
(143) Data from the sampled cooperating importers were
verified and confirmed that the canned mandarins
sector represents less than 6 % of their total turnover
10. DEFINITIVE MEASURES
and that they achieved, on average, a level of profitability
exceeding 10 % during both the investigation period and
10.1. Injury elimination level
the period 2004-08.
(148) One importer claimed that the profit margin at the level
6,8 % used as reference at the provisional stage is over
(144) The foregoing underlines that, on balance, the potential
estimated. In this respect it should be noted that the
impact of measures on importers/traders would not be
same level was used and accepted for safeguard
disproportional to the positive effects emanating
measures as the actual profit achieved by the Union
therefrom.
industry in the period 1998-99 to 2001-02. It refers to

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profits of the Union producers in a normal trading
(154) On the basis of the above, and in line with corrigendum
situation before the increase in imports which led to
published in the Official Journal L 258 ( 1 ),the definitive
injury in the industry. The argument is therefore rejected.
duty should amount as follows:
(149) Union producers claimed that provisional duties did not
— Yichang Rosen Foods Co., Ltd, Yichang, Zhejiang:
take into account the peculiar situation of the canned
531,2 EUR/tonne,
mandarins market, where the production is concentrated
in only one country and the vast majority of sales and of
imports are concentrated in another European country.
— Huangyan No 1 Canned Food Factory Huangyan,
For that it was requested that final calculations take into
Zhejiang: 361,4 EUR/tonne,
account the transport cost from the producer country to
the consumer country. The claim was justified and
warranted and calculations were adapted accordingly to
— Zhejiang Xinshiji Foods Co., Ltd, Sanmen, Zhejiang
reflect the concentration of sales in the relevant areas of
and its related producer Hubei Xinshiji Foods Co.,
the Union.
Ltd, Dangyang City, Hubei Province: 490,7 EUR/

tonne,
(150) One party made comments on the undercutting and
underselling calculation. Where warranted adjustments
— Cooperating exporting producers not included in the
were made at definitive stage.
sample: 499,6 EUR/tonne,

All other companies: 531,2 EUR/tonne.
(151) The resulting injury margins, taking into account, when
warranted, the requests from interested parties, expressed
as a percentage of the total cif import value of each
10.4. Form of the measures
sampled Chinese exporter were less than dumping
margins found, as follows:
(155) A number of parties requested measures which combined
price and quantity elements, whereby for an initial
import volume no duty or a reduced duty would be
— Yichang Rosen Foods Co., Ltd, Yichang, Zhejiang:
paid. In certain cases, this was linked to a license system.
100,1 %,
(156) This option was considered but rejected for, in particular,
— Huangyan No 1 Canned Food Factory, Huangyan,
the following reasons. Anti-dumping duties are imposed
Zhejiang: 48,4 %,
because the export price is lower than the normal value.
The amounts exported to the Union are relevant for the
— Zhejiang Xinshiji Food Co., Ltd, Sanmen, Zhejiang
analysis whether dumped imports cause injury. However,
and related producer Hubei Xinshji Foods Co., Ltd,
these amounts are, normally, irrelevant for the level of
Dangyang City, Hubei Province: 92,0 %,
the duty that should be imposed. In other words, if it is
found that dumped imports cause injury, the dumping
may be offset by a duty which applies as of the first
— Cooperating exporting producers not included in the
shipment imported after the entry into force of the
sample: 90,6 %,
duty. Finally, to the extent that it would be found that
it is in the Union’s interest that during a certain period,
products may be imported without imposing anti-
All other companies: 100,1 %.
dumping duties, Article 14(4) of the basic Regulation
allows for suspension under certain conditions.
10.2. Retroactivity
(152) As specified in recital 4, on 9 November 2007 the
(157) Some parties have alleged that any form of measures
Commission made imports of the product concerned
without a quantitative limitation will lead to duty
originating in the PRC subject to registration on the
avoidance. Parties made reference again to the stockpiling
basis of a request by the Union industry. This request
which occurred in the wake of the enlargement of the
has been withdrawn and therefore the matter has not
European Union on 1 May 2004. The Commission
been further examined.
services’ analysis has confirmed that this was a clear
attempt to avoid the duties. Given these statements and
the facts described in the provisional Regulation in
10.3. Definitive measures
recitals 123 and 125, the Commission will monitor
developments in order to take the necessary actions to
(153) In view of the conclusions reached with regard to
ensure proper enforcement of measures.
dumping, injury, causation and Union interest, and in
accordance with Article 9(4) of the basic Regulation, a
definitive anti-dumping duty should be imposed at the
(158) Other parties have argued that measures should exclude
level of the lowest of the dumping and injury margins
volumes already subject to existing sales contracts. This
found, in accordance with the lesser duty rule. In this
would in practice amount to an exemption of duties
case, the duty rate should accordingly be set at the level
of the injury found.
( 1 ) OJ L 258, 26.9.2008, p. 74.

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which would undermine the remedial effect of measures,
measures with quotas instead of anti-dumping duties.
and is therefore rejected. Reference is also made to
The reason for rejecting a quota system is explained
recitals 138 and 139 above.
above in recital 156. Furthermore it should be noted
that safeguard measures can only be imposed in certain
situations with very specific conditions, in compliance
(159) The provisional Regulation imposed an anti-dumping
with Council Regulation (EC) No 260/2009 of
duty in the form of a specific duty for each company
26 February 2009 on the common rules for imports ( 2 ).
resulting from the application of the injury elimination
It is considered that anti-dumping duties are the most
margin to the export prices used in the calculation of the
appropriate way of addressing injurious dumping. This
dumping during the IP. This methodology is confirmed
group of importers also pointed out that, in relation
at the level of definitive measures.
with the issues raised in recital 44 and 85 above, the
Commission did not open an interim review when
10.5. Undertakings
requested to do so. It is reiterated that, as of the date
of the analogue country judgement, it was no longer
(160) At a late stage in the investigation several exporting
possible to conduct an interim review, as there was no
producers in the PRC offered price undertakings. These
more duty in force. The Commission should resume the
were not considered to be acceptable given the significant
analysis of the pending request for interim review as of
price volatility of this product, the risk of duty avoidance
the date of entry into force of this Regulation. If the
and circumvention for this product (see recitals 124 and
analysis of the request shows that the conditions set
125 of the provisional Regulation), and the fact that no
out in Article 11(3) of the basic Regulation are respected,
guarantees were contained in the offers on the part of the
an interim review should be initiated as soon as possible.
Chinese authorities to allow for adequate monitoring in a
context of companies not having been granted market
economy treatment.
(164) In summary, after having considered all the comments
after disclosure to interested parties of the findings of the
investigation, it was concluded that none of them was of
11. REGISTRATION
such a nature as to change the conclusions reached
during the investigation.
(161) Imports of the product concerned were made subject to
registration by Commission Regulation (EU) No
572/2012 ( 1 ). That registration should cease. The possi
13. DURATION OF MEASURES
bility of collecting retroactive duties will be decided upon
at a later stage, when full statistical data will be available.
(165) This Regulation implements the Court judgements
concerning the original Regulation. Therefore, this Regu
lation shall expire five years after the entry into force of
12. DISCLOSURE
the original Regulation,
(162) All parties were informed of the essential facts and
considerations on the basis of which it was intended to
HAS ADOPTED THIS REGULATION:
impose a definitive anti-dumping duty on imports of the
product concerned originating in the PRC. The parties
were also granted a period within which they could
Article 1
make representations subsequent to the disclosure. The
parties who so requested were granted the opportunity to
1. A
definitive
anti-dumping
duty
is
hereby
reimposed
on
be heard. Two groups of importers requested and were
imports of prepared or preserved mandarins (including
afforded hearings in the presence of the Hearing Officer
tangerines and satsumas), clementines, wilkings and other
of the Directorate-General for Trade.
similar citrus hybrids, not containing added spirit, whether or
not containing added sugar or other sweetening matter, and as
defined under CN heading 2008, currently falling within CN
(163) As regards the Xinshiji judgment, the arguments brought
codes 2008 30 55, 2008 30 75 and ex 2008 30 90 (TARIC
forward had already been analysed and addressed in the
codes 2008 30 90 61, 2008 30 90 63, 2008 30 90 65,
general disclosure document. None of these arguments
2008 30 90 67 and 2008 30 90 69) and originating in the
led consequently to the alteration of the essential facts
People’s Republic of China.
and considerations on the basis of which it was decided
to confirm the injury margin determined in the original
investigation. With regard to the analogue country
2. The
amount
of
the
definitive
anti-dumping
duty
applicable
judgement, a group of importers repeated comments
for products described in paragraph 1 produced by the
already made during the investigation regarding the
companies below shall be as follows:
scope of the partial reopening, the use of IP data and
the determination of the normal value. Those comments
are addressed, respectively, in recitals 43, 46 and 54
above. The same group of importers expressed the
Company
EUR/tonne net
TARIC additional
product weight
code
view that they were in favour of a system of safeguard
Yichang Rosen Foods Co., Ltd,
531,2 A886
Yichang, Zhejiang
( 1 ) Commission Regulation (EU) No 572/2012 of 28 June 2012
making imports of certain prepared or preserved citrus fruits
(namely mandarins, etc.) originating in the People’s Republic of
China subject to registration (OJ L 169, 29.6.2012, p. 50).
( 2 ) OJ L 84, 31.3.2009, p. 1.

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establishing the Community Customs Code (
Company
EUR/tonne net
TARIC additional

1 ) the amount of
product weight
code
anti-dumping duty, calculated on the basis of Article 1 above,
shall be reduced by a percentage which corresponds to the
Huangyan No 1 Canned Food
361,4 A887
apportioning of the price actually paid or payable.
Factory, Huangyan, Zhejiang
2. Unless
otherwise
specified,
the
provisions
in
force
Zhejiang Xinshiji Foods Co., Ltd,
490,7 A888
concerning customs duties shall apply.
Sanmen, Zhejiang and its related
producer Hubei Xinshiji Foods
Article 3
Co., Ltd, Dangyang City, Hubei
Province
The customs authorities are hereby directed to cease the regis
tration of imports carried out pursuant to Article 1 of Regu
Cooperating exporting producers
499,6 A889
not included in the sample as set
lation (EU) No 572/2012.
out in the Annex
Article 4
All other companies 531,2 A999
This Regulation shall enter into force on the day following that
of its publication in the Official Journal of the European Union.
Article 2
Article 5
1. In
cases
where
goods
have
been
damaged
before
entry
into free circulation and, therefore, the price actually paid or
This Regulation shall expire on 31 December 2013.
payable is apportioned for the determination of the customs
Article 6
value pursuant to Article 145 of Commission Regulation
(EEC) No 2454/93 of 2 July 1993 laying down provisions for
Requests for review shall be admissible as of the entry into force
the implementation of Council Regulation (EEC) No 2913/92
of this Regulation.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 18 February 2013.
For the Council
The President
S. SHERLOCK
( 1 ) OJ L 253, 11.10.1993, p. 1.

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ANNEX
COOPERATING EXPORTING PRODUCERS NOT INCLUDED IN THE SAMPLE
(TARIC additional code A889)
Hunan Pointer Foods Co., Ltd, Yongzhou, Hunan
Ningbo Pointer Canned Foods Co., Ltd, Xiangshan, Ningbo
Yichang Jiayuan Foodstuffs Co., Ltd, Yichang, Hubei
Ninghai Dongda Foodstuff Co., Ltd, Ningbo, Zhejiang
Huangyan No 2 Canned Food Factory, Huangyan, Zhejiang
Zhejiang Xinchang Best Foods Co., Ltd, Xinchang, Zhejiang
Toyoshima Share Yidu Foods Co., Ltd, Yidu, Hubei
Guangxi Guiguo Food Co., Ltd, Guilin, Guangxi
Zhejiang Juda Industry Co., Ltd, Quzhou, Zhejiang
Zhejiang Iceman Group Co., Ltd, Jinhua, Zhejiang
Ningbo Guosheng Foods Co., Ltd, Ninghai
Yi Chang Yin He Food Co., Ltd, Yidu, Hubei
Yongzhou Quanhui Canned Food Co., Ltd, Yongzhou, Hunan
Ningbo Orient Jiuzhou Food Trade & Industry Co., Ltd, Yinzhou, Ningbo
Guangxi Guilin Huangguan Food Co., Ltd, Guilin, Guangxi
Ningbo Wuzhouxing Group Co., Ltd, Mingzhou, Ningbo

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