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11.11.2011 Official
Journal
of
the
European
Union
L
293/1
II
(Non-legislative acts)
REGULATIONS
COUNCIL IMPLEMENTING REGULATION (EU) No 1138/2011
of 8 November 2011
imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on
imports of certain fatty alcohols and their blends originating in India, Indonesia and Malaysia
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
2007 to the end of the IP (period considered).
Having regard to the Treaty on the Functioning of the European
Union,
2. Subsequent procedure
Having regard to Council Regulation (EC) No 1225/2009 of
(4)
Subsequent to the disclosure of the essential facts and
30 November 2009 on protection against dumped imports
considerations on the basis of which it was decided to
from countries not members of the European Community ( 1 )
impose provisional anti-dumping measures (provisional
(the basic Regulation), and in particular Article 9 thereof,
disclosure), several interested parties made written
submissions making known their views on the provi
sional findings. The parties who so requested were
Having regard to the proposal submitted by the European
granted an opportunity to be heard.
Commission (the Commission) after having consulted the
Advisory Committee,
(5) The
Commission
continued
to
seek
and
verify
all
Whereas:
information it deemed necessary for its definitive
findings.
A. PROCEDURE
(6) Subsequently,
all
parties
were
informed
of
the
essential
1. Provisional measures
facts and considerations on the basis of which it was
intended to recommend the imposition of a definitive
(1) The
Commission,
by
Regulation
(EU)
No
446/2011
( 2 )
(the provisional Regulation) imposed a provisional anti-
anti-dumping duty on imports of certain fatty alcohols
dumping duty on imports of certain fatty alcohols and
and their blends originating in India, Indonesia and
their blends (FOH) originating in India, Indonesia and
Malaysia and the definitive collection of the amounts
Malaysia (the countries concerned).
secured by way of the provisional duty (final disclosure).

All parties were granted a period within which they
could make comments on this final disclosure.
(2) The
proceeding
was
initiated
by
notice
of
initiation
(NOI)
published on 13 August 2010 ( 3 ) following a complaint
lodged on 30 June 2010 by two Union producers,
(7) The
oral
and
written
comments
submitted
by
the
Cognis GmbH (Cognis) and Sasol Olefins & Surfactants
interested parties were considered and taken into
GmbH (Sasol), (together referred to as ‘the
account where appropriate.
complainants’). These two companies represent a major
proportion, in this case more than 25 %, of total Union
production of the product investigated.
B. PRODUCT CONCERNED AND LIKE PRODUCT
1. Product concerned
(3) As
set
out
in
recital
9
of
the
provisional
Regulation,
the
investigation of dumping and injury covered the period
(8)
The product concerned is, as set out in recitals 10 and
from 1 July 2009 to 30 June 2010 (‘the investigation
11 of the provisional Regulation, saturated fatty alcohols
with a carbon chain length of C8, C10, C12, C14, C16
or C18 (not including branched isomers) including single
( 1 ) OJ L 343, 22.12.2009, p. 51.
( 2 ) OJ L 122, 11.5.2011, p. 47.
saturated fatty alcohols (also referred to as ‘single cuts’)
( 3 ) OJ C 219, 13.8.2010, p. 12.
and blends predominantly containing a combination of

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Official Journal of the European Union
11.11.2011
carbon chain lengths C6-C8, C6-C10, C8-C10, C10-C12
C. DUMPING
(commonly categorised as C8-C10), blends
predominantly containing a combination of carbon
1. India
chain lengths C12-C14, C12-C16, C12-C18, C14-C16
(commonly categorised as C12-C14) and blends
1.1. Normal value
predominantly containing a combination of carbon
(14) In the absence of any comments concerning the deter
chain lengths C16-C18, originating in India, Indonesia,
mination of normal value, the provisional findings in
and Malaysia, currently falling within CN codes
recitals 14 to 18 of the provisional Regulation are
ex 2905 16 85, 2905 17 00, ex 2905 19 00
and
hereby confirmed.
ex 3823 70 00.
(9) After
the
imposition
of
provisional
measures
certain
1.2. Export price
parties complained about the ambiguity of the definition
of the product concerned. They claimed that according to
(15) In the absence of any comments concerning the deter
the NOI, only linear FOH is included in the product
mination of export price, the provisional findings in
scope, thus excluding FOH containing branched
recital 19 of the provisional Regulation are hereby
isomers, or branched FOH. Other parties claimed that
confirmed.
it does not make sense to exclude FOH containing
branched isomers produced from the oxo process
because they have the same use and compete with
linear FOH in the market.
1.3. Comparison
(16) Following
provisional
and definitive
disclosures,
both
Indian exporting producers reiterated their claim that
(10) It
has
been
established
that
all
types
of
FOH
covered
by
their sales made to one of the original complainants in
this investigation, as described in recital 8, despite
the Union during the IP should be ignored when calcu
possible differences in terms of raw material used for
lating the dumping margin (see recital 22 of the provi
the production, or variances in the production process,
sional Regulation). The companies based their claim on
have the same or very similar basic physical, chemical
the fact that Article 9.1 of the WTO Anti-Dumping
and technical characteristics and are used for the same
Agreement provides for the amount of the duty to be
purposes. The possible variations in the product
imposed to be the full margin of dumping or less. The
concerned do not alter its basic definition, its char
Indian exporting producers also referred to Article 2.4 of
acteristics or the perception that various parties have
the WTO Anti-Dumping Agreement pursuant to which a
of it.
fair comparison shall be made between the export price
and the normal value. On this basis, they alleged that the
complainant had negotiated with them the purchase of
very large quantities at very low prices at the same
(11) Hence, the provisional decision to exclude FOH
moment when it was preparing the complaint, and that
containing branched isomers from the product scope as
therefore the prices of these transactions had not been
mentioned in the NOI and to exclude these companies’
set fairly, and for this reason such transactions should
production of branched FOH from the definition of the
not be included in the dumping calculations.
Union production (including those companies producing
FOH from the oxo process) should be maintained. In the
absence of any other comments regarding the product
concerned, recitals 10 and 11 of the provisional Regu
lation are hereby confirmed.
(17) First of all, it should be noted that the fact that the WTO
Anti-Dumping Agreement allows for the possibility to
impose a duty below the full dumping margin does
not create an obligation to do so. Article 9(4) of the
basic Regulation merely imposes an obligation to limit
2. Like product
the anti-dumping duty to a level sufficient to remove the
injury. Moreover, there was no evidence that the prices
(12) It
is
recalled
that
it
was
provisionally
determined
in
had not been freely negotiated between the parties. An
recital 13 of the provisional Regulation that linear FOH
examination of the overall purchases made by the
and branched FOH are not like products and thus the
complainant in question also showed that the prices
data pertaining to producers producing FOH made of
negotiated by the two Indian exporting producers were
branched isomers should be excluded from the injury
in line with the prices agreed for purchases of
analysis.
comparable products by the complainant in question
from other suppliers. Furthermore, it was established
that the complainant was importing from the Indian
exporting producers the product concerned for a
(13) In
the
absence
of
any
other
comments
regarding
the
like
number of years and not only during the IP. Moreover,
product, recitals 12 and 13 of the provisional Regulation
one exporting producer stated in an oral hearing chaired
are hereby confirmed.
by the hearing officer that their prices to the complainant

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11.11.2011 Official
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European
Union
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in question were structurally lower than those charged to
respect of products and blends with chain lengths of C12
other customers. In conclusion, there is no evidence that
and C14 because the duty paid on raw materials used for
the prices had not been set in a fair way only because of
these products was refunded upon export of the product.
the fact that the sales were made to a complainant and it
However, no information which could be verified on
is confirmed that the claim is rejected.
spot was submitted during the investigation, proving
that indeed such duties had been subsequently
refunded. Following definitive disclosure, the company
claimed that its comments had been misunderstood
and that all the raw materials used for the production
(18) Following
provisional
and definitive
disclosures,
both
Indian exporting producers reiterated their claim for an
of products and blends with chain lengths of C12 and
adjustment for currency conversion pursuant to
C14 had been imported duty free. Since an indirect tax
Article 2(10)(j) of the basic Regulation arguing that
needs to be paid if these raw materials are consequently
there was a sustained appreciation of the Indian Rupee
incorporated into products sold on the domestic market,
against the euro as from November 2009 which would
the company claims an adjustment of the normal value
have a distorting effect on the dumping calculations (see
for these specific product types. However, the evidence
recital 23 of the provisional Regulation). Both exporting
submitted during the verification shows that the specific
producers acknowledged that their sale prices in the
raw materials that are needed for the production of the
second half of the IP were higher than those in the
product types with chain lengths C12 and C14 and that
first half of the IP but they claimed that this trend was
were imported duty free during the IP, were sufficient to
due exclusively to an increase in the costs of raw
manufacture only a fraction of the company’s export
materials and to the general improvement in the
sales of this product during the IP. It is therefore
market conditions following the end of the economic
certain that at least two thirds of the exported product
crisis, and did not reflect the appreciation of the Indian
with chain lengths C12 and C14 have been manu
Rupee against the euro. Moreover, the companies claimed
factured by using raw materials for which import
that even if they were able to adjust their prices regularly
duties had been paid. Since the company has never
and at short intervals, they would never be able to
submitted any evidence showing that any of these raw
predict exactly the developments in the exchange rates
materials imported duty free was used for export sales to
for a future period.
the Union and not for export sales to third countries, the

claim is rejected.
(19) The investigation has shown that even though the Indian
Rupee appreciated progressively against the euro during
(21) In
the
absence
of
any
other
comments
in
respect
of
the second half of the IP, for each Indian exporting
comparison, the content of recitals 20 and 23 of the
producer its prices for sales of the main products to
provisional Regulation is hereby confirmed.
several main customers actually changed on a month-
to-month basis, in particular during the second half of
the IP. Therefore, there is no indication that prices for
sales to the Union could not have been modified at the
same time to reflect also changes in currency exchange
1.4. Dumping margin
rates within 60 days as provided for in Article 2(10)(j) of
the basic Regulation and Article 2.4.1 of the WTO Anti-
(22) In the absence of any comments concerning the
Dumping Agreement. Since, in several cases, prices were
dumping margin calculation, the content of recitals 24
changed frequently, any change in exchange rates could
to 26 of the provisional Regulation is hereby confirmed.
also have been reflected. Moreover, this showed that FOH
market in general is open to accept frequent changes in
prices. Therefore, even in cases where prices were
changed less frequently, there is no evidence that this
was not because of the business choice made by the
(23) The
amount
of
dumping
finally
determined,
expressed
as
parties. The fact that prices can be adapted quickly to
a percentage of the cif net free-at-Union-frontier price,
reflect modified market situations (in this case, allegedly
before duty, is as follows:
changes in currency exchange rates) gave the Indian
exporting producers the possibility to reflect such
changes in their selling prices if they had so wished
and apparently done in a number of cases. In view of
the above, an adjustment for currency conversions is not
warranted and the claim is rejected.
Company Definitive
dumping
margin
Godrej Industries Limited 9,3
%
(20) Following
provisional
disclosure,
one
Indian
exporting
VVF Limited 4,8
%
producer claimed that an allowance granted under
Article 2(10)(b) of the basic Regulation for differences
in indirect taxes, which had been made in respect of
All other companies 9,3
%
certain product types, should also have been made in

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2. Indonesia
2.2. Export price
2.1. Normal value
(28) Following provisional disclosure, one Indonesian
exporting producer claimed that no justification had
(24) Following provisional and definitive disclosures, one
been given for considering the price to its related
Indonesian exporting producer claimed that in testing
importer company in the Union as unreliable, and for
the profitability of transactions, the selling, general and
the construction of the export price, in respect of such
administrative (SG&A) expenses, should not have been
sales, under Article 2(9) of the basic Regulation. In this
allocated to individual transactions on the basis of
regard, it should be noted that transfer prices between
turnover, and that this had led to a number of trans
related parties are not considered to be reliable because
actions being found to be unprofitable. The claim was
they could be artificially set at different levels depending
examined, but it was found that matching SG&A
on what would be more advantageous for the related
expenses to individual transactions on the basis of
companies concerned. For this reason, the construction
turnover is more appropriate given the nature of such
of the export price under Article 2(9) of the basic Regu
expenses, which are more value-related rather than
lation, using a reasonable profit margin independent of
volume-related. It should be noted that the total
the actual profit resulting from transfer prices, avoids any
amount of SG&A expenses allocated to each product
distorting effects that may arise from the transfer prices.
type remains the same irrespective of which of the two
The claim is therefore rejected.
methods is used for matching SG&A expenses to indi
vidual transactions. Finally, the transactions for which the
exporting producer queried the outcome of the profit
ability test were re-examined and it was confirmed that
the transactions were unprofitable. The claim is therefore
(29) For export sales to the Union through related importers
rejected.
located in the Union, following provisional disclosure,

both Indonesian exporters claimed that the profit
margin used for the construction of the export price
pursuant to Article 2(9) of the basic Regulation was inap
propriate. They both argued that the profit which had
been used at the provisional stage referred to only one
(25) The
same
Indonesian
exporting
producer
also
claimed
partially cooperating importer and had not been verified,
that, in determining the profit level used when
and was therefore not reliable. Accordingly, they
constructing normal value, the profit of sales identified
suggested using a profit of 5 % as it was done in other
as not being in the ordinary course of trade at product
investigations. In consideration of the low level of coop
type level should not be excluded, since more than 80 %
eration by independent importers in this investigation,
of the overall domestic sales were profitable. With regard
the claim is accepted and a profit level of 5 % was
to this claim, it is recalled that the determination of
applied, which is in line with profits levels used in
which sales are in the ordinary course of trade is made
previous investigations for the same sector.
at the level of product types, as explained in recitals 29
to 32 of the provisional Regulation, since this is the most
appropriate way to accurately match sales prices with the
relating costs of production. Furthermore, Article 2(6) of
(30) In
the
absence
of
any
other
comments
in
respect
of
the basic Regulation does not exclude the division of the
comparison, the content of recitals 34 to 36 of the
product investigated into product types where appro
provisional Regulation — adjusted as explained in
priate. Therefore, sales not found to be in the ordinary
recital 29 of this Regulation — is hereby confirmed.
course of trade are excluded at product type level from
the calculation of the profit to be used in constructing
the normal value. The claim is therefore rejected.
2.3. Comparison
(31) Following provisional disclosure both Indonesian
exporters pointed out that no adjustment should have
(26) The
same
Indonesian
exporting
producer
also
claimed
been made for differences in commissions pursuant to
that when constructing normal value for certain
Article 2(10)(i) for sales via the respective related traders
product types, no deduction for allowances had been
in a third country. Both companies argued that their
made in order to bring the normal values back to an
production companies in Indonesia and the respective
ex-works level. The claim was accepted and the calcu
related traders in Singapore form a single economic
lation amended accordingly.
entity and that the traders in the third country act as
the export department of their related Indonesian
companies. However, in both cases domestic sales, as
well as some export sales to third countries, are
invoiced directly by the manufacturer in Indonesia, and
the traders in Singapore receive a specific commission.
(27) In
the
absence
of
any
other
comments
concerning
the
For one of the Indonesian companies this commission is
determination of normal value, the provisional findings
mentioned in a contract covering only export sales.
in recitals 27 to 33 of the provisional Regulation —
Moreover, the traders in the third country also sell
corrected as indicated in recital 26 of this Regulation
products manufactured by other producers, in one case
— are hereby confirmed.
also from unrelated producers. Both related traders in

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11.11.2011 Official
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Union
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Singapore therefore clearly have functions which are
(34) One
Indonesian
company
further
claimed
that,
even
if
similar to those of an agent working on a commission
the concept of the single economic entity were not to
basis. The claim is therefore rejected.
be accepted, the Commission had imposed a ‘double
margin’ by deducting from the export price to inde
pendent customers in the Union both a profit for the
related importer in the Union as well as a commission
for the related trader in the third country. However, the
(32) Following definitive disclosure, the Indonesian
two items were taken into account for different purposes
government and one Indonesian exporting producer
and were deducted separately. As explained in recital 28,
reiterated the claim of single economic entity referred
for export sales through related importers in the Union,
to in the previous recital. They argued that in Matsushita
the export price is constructed pursuant to Article 2(9) of
v Council ( 1 ) the Court had previously held that the fact
the basic Regulation on the basis of the price at which
that the producer performs certain sales functions does
the imported products are first resold to an independent
not mean that a manufacturing company and a trading
buyer. In these cases an adjustment for the profit
company cannot constitute a single economic entity.
accruing shall be made so as to establish a reliable
Furthermore, they also claimed that sales to third
export price at the Union frontier level. On the
countries that are carried out by the exporter directly
contrary, the commission for the related trader in the
without involving the trader in Singapore only
third country was deducted pursuant to Article 2(10)(i)
represent a small percentage of export sales and that in
of the basic Regulation. Therefore, the claim is rejected.
the Interpipe judgement ( 2 ) the Court of First Instance held
that small volumes of direct sales by the producer did
not support the claim that there was no single economic
entity. Finally, they brought forward that in Canon v
(35) The
company
further
claimed
that,
in
case
the
export
Council ( 3 ) the fact that a sales subsidiary also acted as a
price were to be adjusted for the commission of the
distributor of products from other companies did not
related trader in the third country pursuant to
affect the finding of a single economic entity.
Article 2(10)(i), an identical adjustment to the normal
value should be made, since this trader would also coor
dinate domestic sales. However, the written contract
between the trader and the producer in Indonesia only
covers export sales. Moreover, domestic sales are invoiced
(33) Even
though
in Matsushita v Council the Court held that
by the company in Indonesia. The claim is therefore
the institutions were in that case entitled to find that a
rejected.
manufacturer, together with one or more distribution
companies which it controls, forms an economic entity
even though it performs certain sales functions itself, it
does not necessarily follow that there is an obligation to
(36) In
respect
of
the
adjustment
pursuant
to
Article
2(10)(i)
always consider a producer and its related sales
of the basic Regulation, it is considered appropriate to
companies as a single economic entity. Furthermore,
use a reasonable profit margin independent of the actual
unlike the Indonesian exporting producer, the manu
profit resulting from transfer prices in order to avoid any
facturer in Matsushita v Council did not make any direct
distorting effects that may arise from the transfer prices.
sales itself. Secondly in the Interpipe judgement, the fact
Therefore, the actual profit margins of the traders in the
that direct sales by the exporting producer represented
third country which were used at the provisional stage
only a limited percentage of the total sales volume to the
were replaced by a profit of 5 % which is considered a
Union was only one element analysed by the Court of
reasonable profit for the activities carried out by trading
First Instance. More importantly, the Court stressed the
companies in the chemical sector, as was done in
fact that these direct sales were made to the new Member
previous cases ( 4 ).
States for a transitional period only. In contrast, in this
case, the available evidence indicates that the sales
directly by the producer to certain third countries are
not temporary but — at least in principle — structural,
(37) Another Indonesian company claimed that the
i.e. permanent. Moreover, for each producer concerned,
Commission had deducted twice commission expenses
those sales represent a considerable percentage of its
for sales via its related importer in the Union. The
domestic sales. Finally, in Canon v Council the sales of
company argued that an adjustment for both the
the sales subsidiary of the exporting producer on the
related importer’s SG&A expenses as well as commission
domestic market included other products that were
expenses as a direct selling expense was made when
only sold under a different brand name but had never
constructing the export price pursuant to Article 2(9)
theless all been produced by the exporting producer
of the basic Regulation. Since the commission expenses
itself. The claim is therefore again rejected.
are already included in the SG&A expenses, this resulted
( 1 ) Case C-175/87, Matsushita Electric Industrial Co. Ltd and Matsushita
( 4 ) For instance in Commission Regulation (EC) No 862/2005 of 7 June
Electric Trading Co. Ltd v Council of the European Communities, [1992]
2005 imposing provisional anti-dumping duties on imports of
ECR I, p. 1409.
granular polytetrafluoroethylene (PTFE) originating in Russia and
( 2 ) Case T-249/06, Interpipe Nikopolsky Seamless Tubes Plant Niko Tube
the People’s Republic of China (OJ L 144, 8.6.2005, p. 11) and in
ZAT and Interpipe Nizhnedneprovsky Tube Rolling Plant VAT v Council
Commission Regulation (EC) No 390/2007 of 11 April 2007
of the European Union, [2009] ECR II, p. 383.
imposing a provisional anti-dumping duty on imports of peroxosul
( 3 ) Case C-171/87, Canon Inc v Council of the European Communities,
phates (persulphates) originating in the United States of America, the
[1992] ECR I, p. 1237.
People’s Republic of China and Taiwan (OJ L 97, 12.4.2007, p. 6).

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in a double deduction for commission expenses. This
3. Malaysia
claim was found to be justified and the calculation was
amended accordingly.
3.1. Normal value
(43) Following the provisional disclosure, one of the
Malaysian exporting producers claimed that the profit
(38) One
company
reiterated
its
claim
for
an
adjustment
for
ability test in the ordinary course of trade assessment
differences in physical characteristics on the basis that it
(see recital 46 of the provisional Regulation) should
exports the product concerned in both liquid and solid
not have been based on the weighted average annual
form to the Union whilst it only sells it in solid form on
cost of production but that, given the daily price fluc
the domestic market and that the prices for the liquid
tuations of the main raw material, individual cost of each
form are lower than those for the solid form of the
domestic transaction should have been used. With regard
product investigated (see recital 39 of the provisional
to this claim it should be underlined that it is the
Regulation). To support the claim the company
Commission's consistent practice to use weighted
submitted the copy of two invoices for sales to other
average cost of production as a benchmark for the profit
export markets. However, this evidence could not be
ability test. This format was followed by the company in
verified at this late stage of the proceeding, nor could
its reply to the questionnaire and constituted the basis
it be ascertained that the difference shown was applicable
for the on-spot verification visit which reconciled the
to all cases where the above differences in physical char
data reported by the company with the company’s
acteristics existed. The claim is therefore rejected.
accounts. The claim to use a transaction-based cost of
production, which would constitute a significant
departure from the normal practice of the Commission,
was raised for the first time in the company’s comments
(39) Following
provisional
disclosure,
one
Indonesian
exporter
to the provisional disclosure document and corre
claimed that the interest rate used for the calculation of
sponding figures could therefore not be verified on
credit costs of its related importer in the Union in the
spot. It should also be noted that the individual trans
provisional Regulation was disproportionate and
action cost sheets submitted by the company in support
suggested to use an interest rate based on figures
of their claim are to a large extent based on estimations
published for the IP by Deutsche Bundesbank. Since
and therefore fail to represent more accurate and repre
the interest rate figure used for the calculation of credit
sentative costs data than the ones initially reported by the
costs for this company in the provisional Regulation was
company and verified on spot. Lastly, it should be noted
based on information submitted by other parties and
that the structure of the new cost sheet provided does
therefore reflects their specific financial situation which
not allow reconciliation with this part of management
is not necessarily applicable to the related importer in
reports which were verified on spot. Therefore, the claim
question, the claim was accepted and the calculation was
is rejected.
amended accordingly.
(40) In
the
absence
of
any
other
comments
concerning
the
comparison, the provisional findings in recitals 37 to 40
of the provisional Regulation — adjusted as explained in
recitals 36, 37 and 39 of this Regulation — are hereby
(44) The
Malaysian
exporter with no domestic sales (see
confirmed.
recital 51 of the provisional Regulation) claimed that
the amounts for SG&A costs and for profits used for
the calculation of the normal value should not be
based on the weighted average of the actual amounts
2.4. Dumping margin
determined for the two other exporting producers
selling the like product in the Malaysian market. The
(41) In
the
absence
of
any
other
comments
concerning
the
company claimed that these figures are not represen
dumping margin calculation, the content of recitals 41
tative, as the company is using different manufacturing
and 42 of the provisional Regulation is hereby
methods involving different basic raw material. With
confirmed.
regard to this claim it should be recalled that in the
calculation of the normal value the company’s own
manufacturing costs were used. Only the amounts
(42) The
amount
of
dumping
finally
determined,
expressed
as
concerning SG&A costs were based on the figures
a percentage of the cif net free-at-Union-frontier price,
obtained from the two other Malaysian exporting
before duty, is as follows:
producers. As regards the amount for profit, it was
determined as explained in recital 45 of this Regulation.
Secondly, the company failed to explain the alleged effect
of the production method used on SG&A costs.
Company Provisional
dumping
margin
Furthermore, it is noted that only a limited part of the
production of the company is based on the allegedly
P.T. Ecogreen Oleochemicals 7,3
%
different production method while substantial part of
the production is manufactured with the same
P.T. Musim Mas 5,4
%
production process and with use of the same basic raw
All other companies 7,3
%
materials as in the case of the other two Malaysian
producers. Therefore, it is concluded that the company

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failed to demonstrate that the figures used were not
the two Malaysian exporters claimed that the profit
representative and the claim in this regard is rejected.
margin used for the construction of the export price
pursuant to Article 2(9) of the basic Regulation was inap
propriate. One of the companies supported its claims by
the IP profitability figures of some of their European
unrelated traders. In this regard, it should be noted that
(45) The
same
Malaysian
exporter
further
claimed
that,
should
these figures cannot be considered representative, as the
the Commission nevertheless use the data from the two
traders indicated trade in a wide range of chemical
other exporters for the purpose of establishing SG&A,
products, and in one case the trader is also a producer.
such data should be based on the weighted average
Therefore, they are rejected as a reliable benchmark. The
figures relating to all the domestic transactions of those
second company claimed that its related importer in the
exporting producers and not only relating to the
Union should not be treated as a distributor but as a
profitable transactions. In principle this claim was
related agent and therefore the SG&A cost and profit
accepted. Thus, as regards SG&A, it is confirmed that
adjustment in the construction of the export price
the average SG&A costs for all domestic transactions of
should not exceed the percentage of commission
the two Malaysian exporting producers were used in
normally granted to independent agents trading in the
constructing the normal value. The figures used for this
sector. The company submitted its agreements with inde
calculation were verified during verification visits in the
pendent agents as a benchmark. The claim was further
respective Malaysian companies. As regards the deter
developed after the definitive disclosure by arguing that
mination of profit, it should be noted that it was not
in the tungsten electrodes case ( 2 ) the profit of a related
possible to determine an amount for profit on the basis
importer was considered reliable and accepted in the
of the amounts incurred and realised by the two other
construction of the export price. In reply to this claim
exporting producers. Indeed, such computation results in
it should be noted that Article 2(9) of the basic Regu
an overall loss amount. No profit data could therefore be
lation does not provide for different treatment between
established on that basis. In that respect, the claim by the
related importers allegedly acting as distributors and
Malaysian exporter that a negative amount can be used
importers allegedly acting as agents.
as a profit amount for the construction of normal value
is rejected. Indeed, the concept of profit necessarily
implies the existence of a positive amount. It was also
considered whether the amount for profit could be estab
lished on the basis of the profitable sales of the exporting
producer in Malaysia but that approach was rejected as it
Article 2(9) requires adjustments for all costs incurred
would have been in contradiction with the WTO findings
between importation and resale and for profits
in the case on Imports of Cotton Type Bed Linen from
accruing. Furthermore, it should be noted the investi
India (
gation showed that the related company is located in

1 ). Therefore, pursuant to Article 2(6)(c) of the
basic Regulation, the calculation of the profit has to be
the Union. It handles, inter alia, the customer orders
based on any other reasonable method and, in the
and the invoicing of the product concerned produced
absence of any other available data, the long-term
by its related exporter as well as is responsible for
commercial interest rate in Malaysia was considered as
arranging the Union customs clearance. The fact that
the most appropriate basis for establishing profit. This
certain activities are performed by the related exporter
method was considered conservative, reasonable and
prior to importation does not mean that the export
the most appropriate within the meaning of
price may not be reconstructed on the basis of the
Article 2(6)(c) of the basic Regulation. It is noted that
resale price to the first independent customer with the
the profit margin so established does not exceed the
necessary allowances being made pursuant to
profit realised by other exporting producers on sales of
Article 2(9). Differences in functions claimed by the
products of the same general category in the domestic
company as compared to other related importers are
market of the country of origin.
normally reflected in the SG&A expenses where the
Commission used actual data of the company. Therefore,
this claim can not be accepted. It should be further noted
that in the abovementioned tungsten electrodes case the
related importer was further integrated into the down
stream product produced by the related group and was
(46) In
the
absence
of
any
other
comments
concerning
the
also performing other activities than those of a trading
determination of normal value, the provisional findings
company. Therefore, for such complex structure, the
in recitals 44 to 51 of the provisional Regulation, but for
profit of unrelated importers was found not to be repre
the amendment as explained in the recital 45 of this
sentative enough. The situation in that case is not
Regulation, are hereby confirmed.
comparable with the situation of the Malaysian related
importer in question, which only performs trading
functions. Nevertheless, for the reasons explained in
recital 29, the profit margin in question is adjusted to
5 %. In the absence of any other comments concerning
3.2. Export price
the determination of export price, the provisional
(47) For export sales to the Union through related importers
located in the Union, following provisional disclosure,
( 2 ) Council Regulation (EC) No 260/2007 of 9 March 2007 imposing a
definitive anti-dumping duty and collecting definitively the provi
sional duty imposed on imports of certain tungsten electrodes orig
( 1 ) WT/DS141/AB/R, adopted 12 March 2001.
inating in the People’s Republic of China (OJ L 72, 13.3.2007, p. 1).

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L 293/8
EN
Official Journal of the European Union
11.11.2011
findings in recitals 52 to 54 of the provisional Regu
companies’ own product codes. According to this
lation, but for the amendment as explained above, are
company, the PCNs used in the investigation would
hereby confirmed.
not capture in sufficient detail the specificities of the
production process and differences in the costs and
prices. In support of this claim the company referred
to some of its products which were manufactured by
using different production processes and different basic
3.3. Comparison
raw materials, which resulted in higher unit costs of
(48) Following the provisional disclosure one Malaysian
production. It should be noted that this claim was
exporter reiterated its claim (see also recital 57 of the
neither raised at the provisional stage of the investigation
provisional Regulation) that its related importer in the
nor during the on-the-spot verification visit. Furthermore,
Union is, in fact, the export department of the manu
the use of the company’s own product codes in the
facturer and that there would be excessive deductions in
calculation would not solve the problem of different
establishing the ex-works export price if full adjustments
production methods since the same company’s
for SG&A costs and profits, pursuant to Article 2(9) of
production codes were also used for products manu
the basic Regulation, were made. The company claimed
factured under different production processes. Therefore,
that, alternatively, a similar adjustment should be made
the claim is rejected.
when calculating the normal value. The claim was
reiterated again in the submission after definitive
disclosure. However, no new argument was presented
which would lead to a change in the conclusions in
this regard. In particular, it is recalled that invoices
(51) In the absence of any comments concerning the
were issued by the related company to customers in
comparison, the provisional findings in recitals 55 to
the Union and that payments were received by the
58 of the provisional Regulation, but for the
related company from customers in the Union.
amendment as explained in recital 49 of this Regulation,
Furthermore, it is to be noted that the sales made by
are hereby confirmed.
the related company included a mark-up. Also, the
financial accounts of the related company showed that
it bore normal SG&A costs incurred between importation
and resale. Therefore, the related company indeed
3.4. Dumping margin
performs the typical functions of an importer. Finally,
it should be noted that the producer in Malaysia also
(52) Following the provisional disclosure, a Malaysian
performed direct sales to independent clients in the
producer which did not export to the Union
Union and other countries. On the latter issue, the
commented on recital 60 of the provisional Regulation
company referred to the Interpipe judgement with
claiming that there are other producers of the product
arguments similar to those raised by the Indonesian
concerned in Malaysia. In this regard it is noted that the
exporting producers. For the reasons already explained
presence of an additional producer in Malaysia, which is
in recital 33 of this Regulation, the circumstances of
not an exporter to the Union, does not change the
this case are different from the circumstances discussed
finding with regard to the level of cooperation in
in the Interpipe judgement. Furthermore, the claim of the
Malaysia as no evidence was presented that the inves
Malaysian exporter that the company’s independent sales
tigated companies did not account for all the exports
were negotiated by its related importer in the Union
of the product concerned to the Union in the IP.
acting in the capacity of the export sales department of
Furthermore, the same Malaysian producer criticised the
the Malaysian company contradicts the explanations
fact that producers, like him, which did not export to the
provided during the verification visit where the key role
Union in the IP would be subject to the residual duty
played by the mother company in Japan was instead
rate. In this regard it has to be noted that companies
underlined in this context. The above findings lead to
which have not exported to the Union during the IP
the conclusion that the adjustment for SG&A and
cannot have an individual duty rate. However, as soon
profit should be maintained and no similar adjustment
as these companies start to export, or enter into an
for the calculation of normal value is justified.
irrevocable obligation to sell to the Union, they may
apply for a newcomer review in accordance with
Article 11(4) of the basic Regulation which may result
in an individual duty margin, if the conditions set up in
(49) The
same
company
also
claimed
that
the
deduction
of
that Article are fulfilled.
certain selling expenses of its related importer had been
made twice in reconstructing the export price. The calcu
lations were checked and, since the claim was found to
be justified, were adjusted accordingly.
(53) One
of
the
Malaysian
producers
claimed
that
the
cif
value
used as a basis for calculating the dumping margin
percentage should not be based on the price declared
to the customs, but should be calculated back from the
(50) One of the Malaysian exporters claimed that the
resale price, netted of all the post importation costs in
comparison between normal value and export price
the Union. However, since the cif price was used as the
should not be based on product types as identified by
basis of the custom value declarations at Union frontier,
product control numbers (PCN) but on the basis of the
and does not appear to have been incorrectly declared,

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EN
11.11.2011 Official
Journal
of
the
European
Union
L
293/9
this same price is to be used as the basis for the dumping
as a user. This complainant took a neutral position after
margin percentage calculation. The company claimed that
the publication of the provisional Regulation.
a time gap exists between related deliveries from Malaysia
and custom clearance for the purpose of resales in the
Union. However, even if the invoices for custom
(59) Hence, some parties questioned the level of support or
clearance are issued at a later stage, with prices
standing for the investigation claiming that support for
following the FIFO stock valuation method, it is still
the investigation must hold during the entire investi
the transfer price and not the resale price which is the
gation.
basis for the calculation of the custom value. Therefore
the claim is rejected.
(60) Analysis of this claim showed that the remaining
complainant represents over 40 % of the total Union
(54) In
the
absence
of
any
other
comments
concerning
the
dumping margin calculation, the content of recitals 59
production, thus more than 25 % of total Union
and 60 of the provisional Regulation is hereby
production and 100 % of the Union producers of FOH
confirmed.
expressing their support for or opposition to the

complaint. Hence, the 25 % and the 50 % thresholds
required by Article 5(4) of the basic Regulation are
(55) The
amount
of
dumping
finally
determined,
expressed
as
fully met and standing can be confirmed.
a percentage of the cif net free-at-Union-frontier price,
before duty, is as follows:
(61) Some
parties
claimed
that,
since
both
complainants
had
imported the product concerned during the IP, they
Company Definitive
dumping
margin
should not be considered part of the Union industry. It
was however verified that the percentage of product
KL-Kepong Oleomas Sdn. Bhd. 3,3
%
imported by these companies from the countries
concerned was not substantial in comparison with their
Emery Oleochemicals (M) Sdn.
5,3 %
production of the like product. Furthermore, these
Bhd.
imports were mainly of a temporary nature. It can
therefore be confirmed that the core activity of these
Fatty Chemicals Malaysia Sdn.
5,7 %
companies is production and sales of the like product.
Bhd.
Therefore recitals 62 to 63 of the provisional Regulation
are hereby confirmed.
All other companies 5,7
%
3. Union consumption
D. INJURY
(62) In the absence of comments concerning the Union
1. Preliminary remarks
consumption, recitals 64 to 66 of the provisional Regu
lation are hereby confirmed.
(56) After the publication of the provisional Regulation, it was
found that minor corrections had to be made to the
consumption figures due to a clerical error. This led to
4. Imports into the Union from the countries
minor changes in sales volume, market share of the
concerned and price undercutting
Union industry and the market share of the countries
concerned. These corrections however, have no
4.1. Cumulation
significant impact on the trends and the conclusions
reached with regard to consumption, sales volume,
(63) A
number
of
parties
argued
against
the
fact
that
a
cumu
market share of the Union industry and market share
lative assessment was made for the three countries
of the countries concerned during the period considered
concerned in the provisional Regulation. In their
in the Union market.
opinion the conditions for cumulation laid down in
Article 3(4) of the basic Regulation were not met.
Specifically, they argued that the negative undercutting
2. Union production and Union industry
found for one of the countries precluded cumulation.
In addition, they submitted that the trends in sales
(57) As
mentioned
in
recital
62
of
the
provisional
Regulation,
it was found that the like product was manufactured by
volumes for the three exporting countries differed
the two complainants and by small producers in the
during the period considered, that access to raw
Union. As mentioned in recitals 11 and 12 of this Regu
materials and the raw materials used in the three
lation, producers producing FOH containing branched
exporting countries were also different. Finally, it was
isomers were excluded from the definition of the
mentioned that export sales from one of the countries
Union production of FOH. Despite the fact explained
concerned were channelled through related companies. In
in recital 58 of this Regulation, the Union industry as
their view, different conditions of competition existed
defined in recitals 62 and 63 of the provisional Regu
between the countries concerned in the Union market.
lation is confirmed.
Article 3(4) of the basic Regulation says that where

imports of a product from more than one country are
simultaneously subject to anti-dumping investigations,
(58) One
of
the
two
complainants
was
taken
over
by
a
the effects of such imports shall be cumulatively
company which is participating in the current proceeding
assessed only if it is determined that: (a) the margin of

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L 293/10
EN
Official Journal of the European Union
11.11.2011
dumping established in relation to the imports from each
(64) Consequently,
recitals
67
to
70
of
the
provisional
Regu
country is more than de minimis as defined in Article 9(3)
lation are hereby confirmed.
of that Regulation and that the volume of imports from
each country is not negligible; and (b) a cumulative
assessment of the effects of the imports is appropriate
4.2. Volume, price and market share of dumped imports from
in light of the conditions of competition between
the countries concerned
imported products and the conditions of competition
between the imported products and the like Union
(65) In
the
absence
of
comments
concerning
volume,
price
product.
and market share of dumped imports from the countries
concerned, recitals 71 to 73 of the provisional Regu
lation, are hereby confirmed.
(a) As explained in paragraph 4.3.2 of the provisional
Regulation, the volume of dumped imports for each
4.3. Price undercutting
country concerned was not negligible, and the
presence of dumped imports remained significant
(66) Parties
claimed
that
there
are
differences
in
raw
material
during the period considered.
prices between FOH produced from natural oils and fats
and synthetic sources such as crude or mineral oil and
that an additional product control number (PCN)
criterion should have been introduced in order to
(b) It was found that the conditions of competition and
consider the differences in cost of production arising
the pricing of the countries concerned were similar
from the different production processes. However, PCNs
between the imported products and the like product,
are established on the basis of the individual char
in particular during the IP. As explained in recital
acteristics of each sub-category of items falling within
127 of the provisional Regulation, the injury elim
the definition of the product concerned and not on the
ination levels established for the countries concerned
basis of the price of each of those items. Moreover, it was
were significantly above the de minimis threshold of
found that there is no substantial difference in terms of
2 %. Hence, the price undercutting is not exactly
the basic characteristics of FOH produced from natural
reflecting the situation which would occur in a
oils and fats and FOH made of crude or mineral oil, nor
market with effective price competition. Furthermore,
the cost of production difference is such as to warrant a
the sales channels and the price trends for each of the
differentiation in terms of PCN. This claim is therefore
countries concerned were analysed and found to be
rejected.
similar as shown in the table below. The import
prices of the countries concerned followed a
declining trend and were particularly low during
(67) Certain
parties
claimed
that
the
figure
used
to
reflect
the
the IP compared to the average Union industry’s
post-importation costs, which are around 3 % of the
prices.
import price, used to establish the level of undercutting

by the countries concerned was unclear and did not seem
to be appropriate in this case. However, the information
verified during the investigation showed that importing
parties such as importers and users had to pay such
Imports based on
Eurostat (as adjusted to
amount of post importation costs in order to release
cover only the product
2007 2008 2009 IP
the product concerned for free circulation into the
concerned)
Union market. In addition, the parties did not provide
any evidence which would indicate that the post-
Average price in 911 944 799 857
importation costs were not correctly established in this
EUR/tonnes Malaysia
case. Hence, this claim was dismissed. The methodology
used to calculate the price undercutting as explained in
Index: 2007 = 100 100 104 88 94
recitals 74 and 75 of the provisional Regulation is hereby
confirmed.
Annual Δ % 3,6 –
15,4 7,3
Average price in 996 1
169 899 912
5. Economic situation of the Union industry
EUR/tonnes
Indonesia
5.1. Preliminary remarks
(68) Despite the change in ownership mentioned in recital 58,
Index: 2007 = 100 100 117 90 92
it was considered that the data provided by and verified
at the premises of the complainant who withdrew,
Annual Δ % 17,3 –
23,1 1,4
should not automatically be excluded from the injury
analysis since its production remains part of the Union
Average price in 997 1
141 897 915
production.
EUR/tonnes India
Index: 2007 = 100 100 114 90 92
(69) Some
parties
argued
that
some
data
provided
by
the
Union industry, in particular regarding their purchases
Annual Δ % 14,4 –
21,4 2,1
of the product concerned originating in India, Malaysia
and Indonesia, should be excluded from the injury

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EN
11.11.2011 Official
Journal
of
the
European
Union L
293/11
analysis and the injury margin calculation because any
part of the Union industry are vertically integrated and
alleged injury relating to these purchases would be self-
imported the product concerned from third countries.
inflicted. However, as stated in recital 63 of the provi
Therefore they could use the imported product for
sional Regulation, these purchases were mainly due to
their downstream production and sell their production
the temporary closure of one of the production sites of
which is not profitable.
one producer. Moreover, these purchases were not
substantial in comparison with the total production of
the complainants. There were therefore no compelling
reasons for excluding the purchases of the said
(75) It
should
be
noted
that
in
certain
anti-dumping
investi
producers from the injury analysis or the injury elim
gations, producers such as steel producers and chemical
ination level calculation.
products manufacturers, included in the definition of the
Union industry in these cases, have a downstream
activity and that a share of their production of the
(70) The
preliminary
remarks
as
mentioned
in
recital
76
of
product concerned is destined for captive use. Never
the provisional Regulations are hereby confirmed.
theless, in such a situation, the possible existence of
material injury to the Union industry is investigated
exclusively for the production and sales of the product
concerned. In the present case, material injury has been
5.2. Production, production capacity and capacity utilisation,
found in the business of the product concerned as
sales and market share
explained in recitals 77 to 93 of the provisional Regu
lation. The parties did not provide any evidence which
(71) In
the
absence
of comments concerning
production,
would show that the findings in these recitals are not
production capacity, capacity utilisation, sales and
correct and that the Union industry did not suffer
market share of the Union industry, recitals 77 to 81
material injury during the IP. Therefore this claim is
of the provisional Regulation are hereby confirmed.
rejected.
5.3. Average unit prices of the Union industry
(76) Some parties claimed that the closure of certain
(72) After the publication of the provisional Regulation, it was
production capacity by the complainants showed a
found that corrections had to be made to the average
misleading picture of the alleged injury they suffered.
unit prices of the Union industry due to a clerical error.
They argued that there were other producers in the
The table below shows the modified trend in unit price
Union that contributed to the capacity in the Union
of the Union industry during the period considered.
and that the capacity of the Union industry increased
with investments in new capacity. This is hardly
indicative of an injured industry. Other parties claimed
that the reduction of investment does not mean injury,
Unit price, sales in the
but means relocation of production out of the Union.
Union to unrelated
2007 2008 2009 IP
Index: 2007 = 100 100 123 102 96
Annual Δ % 22,6
% –
16,9
% –
5,3
%
(77) The
investigation
established
in
recital
78
of
the
provi
sional Regulation that the production capacity of the
Source: questionnaire replies.
Union industry increased by 9 % in 2008 but that it
then decreased by 10 % during the IP. This was the
result of decisions undertaken in order to face the
(73) Contrary
to
what
is
mentioned
in
recital
84
of
the
provi
competition from the countries concerned, and the
sional Regulation, prices of the Union industry decreased
subsequent temporary closures were also due to the
by 4 % during the period considered. The decrease was
pressure exerted by the dumped imports. With regard
significant from 2008 to 2009 with a further decrease in
to investments, it was established in recital 89 of the
the IP. Over this period the sales price decreased by 22 %.
provisional Regulation that investments made by the
The above change has no impact on the conclusion of
Union industry in the Union decreased by 35 % during
the economic situation of the Union industry, in the
the period considered. This is one of several injury
absence of comments regarding the average unit prices
factors which allowed concluding in recitals 92 and 93
of the Union industry, recitals 82 and 83 of the provi
of the provisional Regulation that the Union industry
sional Regulation are hereby confirmed.
suffered material injury during the IP.
5.4. Stocks, employment, wages and productivity, profitability,
cash flow, investments return on investment and ability to
(78) In the absence of other comments concerning stocks,
raise capital, growth, magnitude of the actual dumping
employment, wages and productivity, profitability, cash
margin
flow, investments return on investments and ability to
raise capital, growth and magnitude of the actual
(74) Some
parties
claimed
that
it
was
not
possible
that
the
dumping margin, recitals 85 to 91 of the provisional
Union industry suffered injury since companies that are
Regulation are hereby confirmed.

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L 293/12
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Official Journal of the European Union
11.11.2011
5.5. Post IP developments
the increase in imports, whereas, according to this party,
imports from the countries concerned developed in line
(79) Some
parties
argued
that there
was
no evidence
of
with consumption.
material injury suffered by the Union industry and the
fact that one of the two original complainants had
withdrawn its support to the investigation showed that
it was not suffering injury. It was also argued that the
(87) It
should
be
clarified
indeed
that,
as
mentioned
in
recitals
injury indicators for the remaining complainant did not
64 to 66 of the provisional Regulation, consumption
show a picture of injury.
overall increased by 2 % during the period considered.
However, this does not undermine the fact that there
was an important overall increase in volume and
(80) It
should
be
noted
that
the
company
in
question
did
not
market share of the low-priced dumped imports from
oppose to the investigation but took a neutral position.
the countries concerned during the period considered
Therefore, as explained in recital 57, it was still
(see recital 96 of the provisional Regulation), whereas
considered appropriate to keep both Union producers
the market size remained nearly unchanged, and while
as part of the Union industry.
the Union industry lost an important market share, in
particular between 2009 and the IP.
(81) It
was
claimed
that
there
has
been
a
marked
increase
of
prices in the post-IP period, and that these price devel
opments in that period will immediately translate into
(88) Some parties made the argument that the trends of
profits for the complainants who themselves
imports from the countries concerned are not linked to
announced better results in their public statements for
the deterioration of economic situation of the Union
the period 2010-2011.
industry, in particular sales volume, sales values and
profitability. They argue that there was an improvement
in profitability of the Union industry when the imports
(82) Some parties insisted that there was a significant
increased in 2008, and then it fell significantly when
improvement in the situation of the Union industry in
imports remained stable.
the post-IP period pointing out that some companies
were planning to build new facilities in the Union. It
was also claimed that in view of the recent increase in
import prices, measures should be suspended or imposed
(89) Contrary to the above allegation, the investigation
in the form of a minimum import price (MIP).
pointed to an overall correlation between the low-
priced dumped imports and the injury suffered by the
Union industry during the whole period considered (see
(83) Events
that
occurred
after
the
IP
shall
normally
not
be
recitals 95 to 98 of the provisional Regulation). The
taken into account in an anti-dumping investigation. In
investigation also showed that the Union industry
addition, no evidence that suggests that the mentioned
could not recover in the period considered due to the
post-IP events are manifest, undisputed and lasting was
increased presence of low-priced dumped imports on the
provided. Concerning any suspension of the definitive
Union market. Hence, the claim should be rejected.
measures, this should be seen in the light of post-IP
developments which would be of a lasting nature.
(90) It was also claimed that differences in trends in imports
(84) As
to
the
imposition
of
an
MIP,
as
explained
in
recitals
existed depending on the types of alcohol produced by
123 to 126 it is considered that the circumstances are
some exporting producers, and that therefore, a separate
not such as to warrant it. Therefore all the above claims
injury analysis for these alcohols should be performed.
are dismissed.
However, the different types included in the product
scope share the same basic characteristics. The investi
gation did not reveal any substantial difference between
6. Conclusion on injury
FOH produced from different raw materials. Therefore

there are no reasons in this case to establish a separate
(85) The
Investigation
confirmed
that
most
of
the
injury
analysis of the trends per type of alcohol.
indicators pertaining to the Union industry showed a
declining trend during the period considered. Based on
the above, the conclusion reached in recitals 92 and 93
of the provisional Regulation that the Union industry
(91) It
was
also
argued
that
injury
could
not
be
attributed
to
suffered material injury during the IP is confirmed.
India because its imports did not increase during the
period considered, in particular when purchases by the
Complainants are not taken into account. However, it
E. CAUSATION
was found that the imports from India were made at
dumped prices in the Union market and that the injury
1. Effect of the dumped imports
margin was largely above the de minimis level of 2 %.
Moreover, as explained in recitals 63 to 65, the
(86) One
party
observed
that
the
analysis
in
recital
108
of
the
conditions for a cumulative assessment for the
provisional Regulation is flawed, because it seems to link
countries concerned were met. This claim should thus
an overall and continuous decrease in consumption to
be rejected.

---

EN
11.11.2011 Official
Journal
of
the
European
Union L
293/13
(92) It
was
also
argued
that
injury
could
not
be
attributed
to
taken by the Union industry, the competitive pressure in
the companies whose individual undercutting margin was
their downstream market, the decrease in the production
negative, or because of this reason, to imports from
of the product concerned destined for captive use, the
Indonesia as a whole.
general change in market conditions and the competitive
situation in the Union market.
(93) As
explained
in
recitals
63
to
65,
all
the
conditions
of
a
cumulative assessment of the imports concerned were
(98) It is worth mentioning that the above parties were not
met. Accordingly, the effects the low-priced dumped
able to substantiate their claims and to demonstrate that
imports originating in the countries concerned had on
factors other than the low-priced dumped imports from
the Union industry were assessed jointly for the purpose
the countries concerned were breaking the causal link
of the injury analysis and the cause of the injury.
between the injury suffered by the Union industry and
Furthermore, the absence of undercutting does not
the dumped imports.
exclude the existence of material injury to the Union
industry. Indeed, as explained in recitals 124 to 127 of
the provisional Regulation it was found that the price
(99) Some
parties claimed that the Commission did not
charged by the Union industry was not sufficient to
analyse the possible impact the sales of branched FOH
cover all production costs and achieve the reasonable
had on the sales of the product concerned made by the
margin of profit it could have achieved in the absence
Union industry and the effects it had on its economic
of dumped imports during the IP. This claim is therefore
situation. The investigation focused on the product as
rejected.
defined in recitals 8 to 12 and no party provided

reliable data which would have allowed to assess the
possible negative impact the branched FOH had on the
economic situation of the Union industry. Hence this
(94) In
the
absence
of
any
other
comments
regarding
effects
claim is rejected.
of the dumped imports, recitals 95 to 98 of the provi
sional Regulation are hereby confirmed.
(100) In the absence of any comments regarding effects of
other factors, recitals 99 to 106 of the provisional Regu
2. Effects of other factors
lation are hereby confirmed.
(95) Several
parties
have
argued
that
the
real
cause
of
injury
suffered by the Union industry should be attributed to
3. Conclusion on causation
the financial crisis, as the main harm to that industry
occurred when imports from the countries concerned
(101) The investigation did not point to the fact that there
stabilised. It was also mentioned that the deterioration
were factors other than the low-priced dumped imports
of the profitability of the Union industry was similar to
from the countries concerned which were breaking the
that observed for other companies operating in the
causal link between the material injury suffered by the
chemical sector.
Union industry and the dumped imports.
(102) In the absence of any comments regarding conclusion on
(96) The crisis played a role in the performance of the Union
industry. Trends in injury factors such as capacity utili
causation, recitals 107 to 110 of the provisional Regu
sation and sales volume show that the situation of the
lation are hereby confirmed.
Union industry worsened with the crisis and somewhat
improved with the recovery in the market. However, the
F. UNION INTEREST
investigation showed that the improvement did not allow
the recovery of the Union industry which was far from
1. Union industry
its economic situation that prevailed at the beginning of
the period considered. Furthermore, as mentioned in
(103) In the absence of any comments with regard to the
recital 89, 2008, just before the financial crisis started,
interest of the Union industry, recitals 112 and 113 of
was the year with the highest increase in dumped
the provisional Regulation are hereby confirmed.
imports from the countries concerned and the sharpest
decrease in sales volume of the Union industry. After that
year the Union industry did not recover and the dumped
2. Importers
imports continued to be massively present in the Union
market. For these reasons it is clear that, regardless of
(104) In the absence of comments on the interest of importers,
other factors, dumped imports largely contributed to the
recitals 115 and 116 of the provisional Regulation are
material injury suffered by the Union industry during the
hereby confirmed.
IP. This claim is therefore rejected.
3. Users
(97) Several
parties
also
claimed
that
the
real
cause
of
the
(105) It is recalled that in order to assess the possible impact of
alleged injury of the Union industry was the imports
the anti-dumping measures on the Union users the inves
from other third countries, the decrease in demand, the
tigation concentrated mainly on the aggregated data
increased raw material prices and the lack of proper
provided by five large user companies visited at provi
access to these raw materials, wrong strategic decisions
sional stage.

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L 293/14
EN
Official Journal of the European Union
11.11.2011
(106) On that basis it was provisionally found that the share of
while the impact of the same duty on the downstream
the cost of the product concerned in the total cost of
product using the product concerned, for the surfactants’
production for this group was significant and ranged
group would be of about 0,05 % and on the second
between 10
% and 20
% depending on the final
group of companies it would be about 0,29 %.
product. However, the data available was revised and
according to new calculations and the correction of
some figures, this range is found to be between 15 %
(111) The analysis showed as well that the surfactants
and 25 %. Similarly, the average profit margin in the
producers achieved lower profit margins in the sectors
business using the product concerned was found to be
using the product under investigation; however, this
around 6 % for the group of the five visited companies;
group imported from the countries concerned only
the new calculations show a higher average profit
about 2,6 % of their total purchases of the product
margin, which is about 7,5 %. Finally, the average share
under investigation during the IP. Furthermore, the
of business using the product concerned out of the total
percentage of the surfactants business using FOH in
business was also corrected. This was provisionally found
comparison to their total turnover is about 24 %.
to be about 22 %, whereas according to new calculations,
Hence, even with the application of an average
a percentage of 25 % was found.
dumping duty of 5 %, the final impact on the cost of
production of products including the product inves
tigated is very limited and even negligible on their total
(107) After the publication of the provisional Regulation, a
profitability.
number of users reacted and made comments with
regard to the final disclosure. They contested the
selection of the five user companies mentioned in
(112) Some surfactant producers nevertheless argued that the
recital 118 of the provisional Regulation arguing that
anti-dumping duties will prevent them from freely
the data used to assess the possible impact of the
buying their raw materials, thus creating a distortion in
measures on the user industry was not transparent, not
their market segment.
based on representative parties and on a low number of
parties. It was argued that the analysis should take into
consideration the data provided by all cooperating users
(113) As stated in recital 120 of the provisional Regulation, the
in the investigation.
level of anti-dumping duties and the possible impact on
the user industry and on the downstream market, do not
create serious barriers to imports of the product
(108) However, as mentioned in recitals 117 and 118 of the
concerned. The investigation confirmed that the definitive
provisional Regulation the 21 cooperating companies
anti-dumping duties could not create a distortion on the
represent together around 25
% of total Union
downstream market. At the same time, it should not be
purchases of the product concerned during the IP,
difficult for surfactant producers to pass on this rather
whilst the five companies used to assess the interest of
low increase in cost in the final price of their products.
users represented about 18 % of these purchases, and
Therefore, the claims that the anti-dumping duties would
72
% of the cooperating users’ purchases of the
create distortions in the downstream market are rejected.
product concerned. Besides being representative in
terms of volume of purchase of the product concerned,
theses five users constituted a very good representation
(114) After disclosure of definitive findings some users insisted
of the different business sectors of the users industry.
that the Union producers had refused to supply goods to
Indeed, the five visited companies are a heterogeneous
them, and that there were few alternatives of supply.
group that includes not only the first-use producers, i.e.
However, as stated in recital 120 of the provisional Regu
the surfactants producers, but also the users of the
lation, the relatively low level of proposed measures
surfactants and further downstream users.
should not preclude the possibility to import the
product concerned. Furthermore, the Union producers
did not produce at full capacity during the period
(109) Nevertheless, a wider analysis taking into account all
considered. In addition, imports are also possible from
information submitted by the cooperating users was
other third countries which are not subject to measures
carried out. In particular, a specific assessment of the
and the Eurostat figures for imports of FOH from the rest
possible impact of anti-dumping duties on the surfactants
of the world after the IP show that these imports are
producers as a separate group was performed since this
growing, indicating that the alleged risk of lack of
group could potentially be most affected by the
supply is unsubstantiated. Therefore, this claim was
imposition of measures. Another separate analysis has
rejected.
been performed for a second group of users, consisting
of all other user companies that cooperated in the inves
tigation.
(115) Some users’ associations which failed to make themselves
known in the deadline foreseen under point 5.3 of the
notice of initiation claimed that their views, especially on
(110) A simulation assessing the possible effect of an average
the possible impact of the measures on small and
duty of 5 % on imports of FOH on all cooperating users
medium enterprises and on specific sectors, had not
first and then on the two separate groups was performed.
been reflected in the assessment of the Union interest.
The outcome of the simulation showed that the final
However, it should be noted that all the comments raised
impact of this average duty on the total cost of
by these associations have been taken into consideration
production for the business using the product
in this investigation. Furthermore, as stated in recital 109,
concerned would be of about 0,09 % for all users,
the assessment of the Union interest has taken into

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EN
11.11.2011 Official
Journal
of
the
European
Union L
293/15
account all information submitted by the cooperating
for the Union industry as it would not reflect the level of
users. Therefore, this claim has been rejected.
price that could be obtained in the absence of dumped
imports in the Union market. The claim was thus
rejected.
(116) Several parties claimed that the duration of the measures,
were these to be imposed, should be limited to a
maximum period of 2 years. According to the basic
(122) On this basis, the provisional injury margins expressed as
Regulation, a definitive anti-dumping measure shall
a percentage of the cif Union frontier price, duty unpaid
normally be imposed for the duration of 5 years. Since
as indicated in recital 127 of the provisional Regulation
none of the parties demonstrated that a period of 2 years
can be confirmed.
would be sufficient to counteract the dumping causing
injury as demanded in Article 11(1) of the basic Regu
lation, there seems to be no valid reason to deviate form
the standard duration of the length of the measures.
2. Definitive measures
Therefore, this claim has been rejected.
2.1. Form of the definitive measures
(123) As mentioned in recitals 79 to 84, some parties claimed,
(117) In the absence of any other comments on the interest of
inter alia, that the current measures should be suspended
users, it is confirmed that the imposition of definitive
because post-IP events concerning the price increase of
measures on imports of the product concerned would
the product concerned in the Union market were
not be against the Union interest, recitals 117 to 121
manifest, undisputed and lasting. They also argued that
of the provisional Regulation are thus confirmed.
any definitive measures should not take the form of an
ad valorem duty but rather imposed in the form of an
MIP.
4. Conclusion on Union interest
(118) Based on the above the conclusion reached in recital 122
of the provisional Regulation can be confirmed. There are
(124) It is considered however that in this particular case the
no compelling reasons against the imposition of
circumstances are not such as to warrant the imposition
definitive anti-dumping duties on imports of FOH from
of a minimum import price. This form of the measure
the countries concerned.
could easily be circumvented given the nature of the
product concerned and the complex corporate structures
of the exporters in question.
G. DEFINITIVE ANTI-DUMPING MEASURES
1. Injury elimination level
(125) However, it is admitted that there is certain price sensi
tivity in the market for the product at issue and thus it
(119) It is recalled that the profit margin used to calculate the
would be reasonable to minimise the impact of the
target profit at provisional stage was 7,7
%. The
definitive measures on Union users in the event of
complainants have argued that a target profit of 15 %
possible significant price increases of the product
would be more appropriate. In this respect, it should
concerned. Hence, it is considered appropriate to
be noted that they failed to submit verifiable evidence
change the form of the definitive measures from ad
to support the claim that the target profit was too low.
valorem duties to specific duties.
Therefore, it is proposed to confirm the provisional
target profit of 7,7 % which is based on the profit
margin achieved for the whole alcohol business of the
one complainant in its last profitable year before the
(126) This form of measures is expected to limit to a certain
surge of low-priced dumped imports.
extent any possible undue negative impact on the users
in the case prices would increase significantly and
rapidly. If, on the other hand, prices would decrease,
(120) Certain parties claimed that 7,7 % was not realistic and
the specific duties would still ensure sufficient protection
was too high. They suggested using a lower profit margin
to the Union producers. The specific duties are based on
between 3 and 5 % to establish the injury elimination
the cif values of the cooperating companies’ Union
level. This claim however was not substantiated by any
exports in the IP, converted to euro using monthly
evidence showing that the profit proposed was the one
exchange rates, multiplied by the lower of the dumping
that could be achieved by the Union industry in the
and the injury margins in accordance with the lesser duty
absence of dumped imports in the Union market and
rule.
was thus not accepted.
(127) In this respect, two exporting producers claimed that the
(121) Certain parties have claimed that the Commission
yearly average exchange rate should be used instead of
erroneously established the injury elimination level on
the monthly. However, it is noted that in accordance
the basis of the underselling margin, whereas it should
with the standard practice, any conversion of currencies
have used the undercutting margin. In the present case, it
in anti-dumping investigations is made using the
was not considered that the undercutting margin was an
monthly exchange rates. This was the cases also for
appropriate basis to establish the injury elimination level
this investigation. The claim was therefore rejected.

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L 293/16
EN
Official Journal of the European Union
11.11.2011
(128) The complainant claimed that when establishing the
Definitive specific anti-
specific duties, current FOH prices and not cif values
Country Company
dumping duty (EUR per
during the IP should have been used. It should be
tonne net)
noted that specific duties are established based on the
dumping and injury calculations for the IP. No
Fatty Chemical
51,07
substantiated arguments have been put forward for
Malaysia Sdn. Bhd
basing the calculations of the specific duties in this
case on a period after the IP. Therefore this claim has
All other companies 61,01
been rejected.
(133) The individual company anti-dumping duty rates
2.2. Imposition of the definitive measures
specified in this Regulation are solely applicable to

imports of the product concerned produced by these
(129) After the publication of provisional measures a potential
companies and thus by the specific legal entities
exporting producer came forward and claimed that the
mentioned. Imports of the product concerned manu
residual duty rate should be set at the level of the highest
factured by any other company not specifically
duty imposed and not of the highest dumping margin
mentioned in this Regulation with its name and
found for Indonesia. However, the residual duty is set at
address, including entities related to those specifically
the residual dumping or the residual injury margin by
mentioned, cannot benefit from these rates and should
applying the lesser duty rule. The claim was therefore
be subject to the duty rate applicable to ‘all other
rejected.
companies’.
(130) In the light of the foregoing, it is considered that, in
accordance with Article 9(4) of the basic Regulation,
(134) Any claim requesting the application of these individual
definitive anti-dumping measures should be imposed in
anti-dumping duty rates (e.g. following a change in the
respect of imports of the product concerned at the level
name of the entity or following the setting up of new
of the lower of the dumping and the injury margins, in
production or sales entities) should be addressed to the
accordance with the lesser duty rule.
Commission (


1 ) forthwith with all relevant information,
in particular any modification in the company’s activities
linked to production, domestic and export sales
associated with, for instance, that name change or that
(131) All parties were informed of the essential facts and
change in the production and sales entities. If appro
considerations on the basis of which it was intended to
priate, this Regulation should then be amended
recommend the imposition of definitive anti-dumping
accordingly by updating the list of companies benefiting
duties. They were also granted a period within which
from individual anti-dumping duty rates.
they could make representations subsequent to final
disclosure. The comments submitted by the parties
were duly considered, and, where appropriate, the
findings have been modified accordingly.
3. Undertakings
(135) One Indian as well as one Malaysian exporting producer,
together with its related importer, offered a price under
(132) The proposed definitive anti-dumping duties are the
following:
taking in accordance with Article 8(1) of the basic Regu

lation. Both undertaking offers contained a high number
of product groups (determined by the chemical specifi
cation), each group subject to a different minimum
Definitive specific anti-
import price (MIP), with price differences between the
Country Company
dumping duty (EUR per
groups up to 25 % for the Malaysian exporter and up
tonne net)
to 100 % for the Indian exporter. In addition, prices
varied up to 20 % within the individual groups, thus
India VVF
Limited 46,98
posing a very high risk of cross-compensation. It was
also noted that the offer of the Indian exporter did not
All other companies 86,99
address the volatility of prices of the product concerned.
Additional cross-compensation risks were identified with
Indonesia P.T.
Musim
Mas 45,63
regards to the Malaysian exporter and its related importer
in the Union who did not only source the product
All other companies 80,34
concerned from the Malaysian exporter but also from
other suppliers. Finally, it would be difficult for
Malaysia KL-Kepong
Oleomas 35,19
customs to determine the chemical specification of the
Sdn. Bhd.
product without individual analysis, thus rendering the
monitoring very burdensome, if not impracticable. The
Emery
61,01
undertaking offers were therefore rejected. Following the

Oleochemicals (M)
Sdn. Bhd.
( 1 ) European Commission, Directorate-General for Trade, Directorate H,
NERV-105, 1049 Bruxelles/Brussel, BELGIUM.

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EN
11.11.2011 Official
Journal
of
the
European
Union L
293/17
proposal to change the form of the measures, one
Definitive
exporting producer amended its undertaking offer
Country Company
anti-dumping duty TARIC Additional
suggesting an average MIP for all product groups and
(EUR per tonne
Code
claiming that there will be no risk of cross-compensation
net)
any longer. The other exporting producer simply upheld
All other
86,99 B999
its offer. However, given the number of product types
companies
and the price variation between them, an MIP could
completely compromise the effectiveness of the
Indonesia P.T.
Musim 45,63 B112
measures. Furthermore, the structure of the companies
Mas, Tanjung
and of their offers as outlined above still constitutes an
Mulia, Medan,
obstacle towards accepting an undertaking. The reporting
Sumatera Utara
and price regime suggested by one exporter does not
address those concerns and in any case would render
All other
80,34 B999
the monitoring very burdensome, if not impracticable.
companies
Consequently, the undertaking offers cannot be accepted.
Malaysia KL-Kepong 35,19 B113
4. Definitive collection of provisional anti-dumping
Oleomas Sdn
duties
Bhd.,
Pelabuhan
(136) In view of the magnitude of the dumping margins found
Klang, Selangor
and in the light of the level of the injury caused to the
Darul Ehsan
Union industry, it is considered necessary that the
amounts secured by way of the provisional anti-
Emery
61,01 B114
dumping duty imposed by the provisional Regulation
Oleochemicals
(M) Sdn. Bhd.,
should be definitively collected to the extent of the
Kuala Langat,
amount of the definitive duties imposed by this Regu
Selangor
lation. Where the definitive duties are lower than the
provisional duties, amounts provisionally secured in
Fatty Chemical
51,07 B117
excess of the definitive rate of anti-dumping duties
Malaysia Sdn.
should be released,
Bhd. Prai,
Penang
HAS ADOPTED THIS REGULATION:
All other
61,01 B999
companies
Article 1
1. A
definitive
anti-dumping
duty
is
hereby
imposed
on
imports of saturated fatty alcohols with a carbon chain length
3. In
cases
where
goods
have
been
damaged
before
entry
of C8, C10, C12, C14, C16 or C18 (not including branched
into free circulation and, therefore, the price actually paid or
isomers) including single saturated fatty alcohols (also referred
payable is apportioned for the determination of the customs
to as ‘single cuts’) and blends predominantly containing a
value pursuant to Article 145 of Commission Regulation
combination of carbon chain lengths C6-C8, C6-C10, C8-
(EEC) No 2454/93 of 2 July 1993 laying down provisions for
C10, C10-C12 (commonly categorised as C8-C10), blends
the implementation of Council Regulation (EEC) No 2913/92
predominantly containing a combination of carbon chain
establishing the Community Customs Code ( 1 ), the amount of
lengths C12-C14, C12-C16, C12-C18, C14-C16 (commonly
anti-dumping duty, calculated on the amounts set above, shall
categorised as C12-C14) and blends predominantly containing
be reduced by a percentage which corresponds to the appor
a combination of carbon chain lengths C16-C18, currently
tioning of the price actually paid or payable.
falling within CN codes ex 2905 16 85, 2905 17 00,
ex 2905 19 00
and
ex 3823 70 00
(TARIC
codes
2905 16 85 10,
2905 19 00 60,
3823 70 00 11
and
4. Unless
otherwise
specified,
the
provisions
in
force
3823 70 00 91) and originating in India, Indonesia, and
concerning customs duties shall apply.
Malaysia.
Article 2
2. The
rate
of
the
definitive
anti-dumping
duty
of
the
products described in paragraph 1 and produced by the
The amounts secured by way of the provisional anti-dumping
companies below shall be as follows:
duty pursuant to Regulation (EU) No 446/2011 shall be
definitively collected. The amounts secured in excess of the
rates of the definitive anti-dumping duty shall be released.
Definitive
Country Company
anti-dumping duty TARIC Additional
(EUR per tonne
Code
Article 3
net)
This Regulation shall enter into force on the day following its
India VVF
Ltd, 46,98 B110
Taloja,
publication in the Official Journal of the European Union.
Maharashtra
( 1 ) OJ L 253, 11.10.1993, p. 1.

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L 293/18
EN
Official Journal of the European Union
11.11.2011
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 8 November 2011.
For the Council
The President
J. VINCENT-ROSTOWSKI

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