HTML PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN"EN
21.12.2012 Official
Journal
of
the
European
Union
L
352/1
II
(Non-legislative acts)
REGULATIONS
COUNCIL IMPLEMENTING REGULATION (EU) No 1241/2012
of 11 December 2012
amending Implementing Regulation (EU) No 1138/2011 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,
far as the anti-dumping duty with regard to Ecogreen was
concerned. Ecogreen contested the adjustment made on
the basis of Article 2(10)(i) of the basic Regulation to its
Having regard to the Treaty on the Functioning of the European
export price for the purpose of comparing that export
Union,
price with the company’s normal value.
Having regard to Council Regulation (EC) No 1225/2009 of
30 November 2009 on protection against dumped imports
(4) On
16
February
2012,
the
Court
of
Justice
rendered
its
from countries not members of the European Community ( 1 )
judgment in joined Cases C-191/09 P and C-200/09 P
(‘the basic Regulation’), and in particular Article 9(4) thereof,
Council of the European Union and European
Commission v Interpipe Nikopolsky Seamless Tubes
Plant Niko Tube ZAT (Interpipe Niko Tube ZAT) and
Having regard to the proposal submitted by the European
Interpipe Nizhnedneprovsky Tube Rolling Plant VAT
Commission (‘the Commission’) after having consulted the
(Interpipe NTRP VAT). The Court of Justice rejected the
Advisory Committee,
appeals and cross-appeals of the General Court’s
judgment in Case T-249/06 Interpipe Nikopolsky
Whereas:
Seamless Tubes Plant Niko Tube ZAT (Interpipe Niko
Tube ZAT) and Interpipe Nizhnedneprovsky Tube
Rolling Plant VAT (Interpipe NTRP VAT) v Council of
(1) In
August
2010,
the
Commission,
by
Notice
of
Initiation
the European Union. The General Court had annulled
(NOI) published on 13 August 2010 ( 2 ), initiated a
Article 1 of Council Regulation (EC) No 954/2006 ( 5 )
proceeding with regard to imports of certain fatty
with regard to Interpipe NTRP VAT, inter alia, on the
alcohols and their blends (‘FOH’) originating in India,
grounds of a manifest error of assessment in making the
Indonesia and Malaysia (‘the countries concerned’).
adjustment based on Article 2(10)(i), and on other
grounds with regard to Interpipe Niko Tube ZAT.
(2) In
May
2011,
by
Regulation
(EU)
No
446/2011
( 3 ) (‘the
provisional Regulation’), the Commission imposed a
provisional anti-dumping duty on imports of FOH orig
(5) Given
that
the
factual
circumstances
for
Ecogreen
are
inating in India, Indonesia and Malaysia, and in
similar to those of Interpipe NTRP VAT in respect of
November 2011 a definitive anti-dumping duty was
the adjustment made pursuant to Article 2(10)(i) of the
imposed on the same imports by Council Implementing
basic Regulation, in particular the following factors in
Regulation (EU) No 1138/2011 ( 4 ) (‘the definitive Regu
combination: volume of direct sales to third countries
lation’).
of less than 8 % (1-5 %) of all export sales; existence of
common ownership/control of the trader and the
exporting producer; the nature of functions of the
(3) On
21
January
2012,
PT
Ecogreen
Oleochemicals,
an
Indonesian exporting producer of FOH, Ecogreen Oleo
( 5 ) Council Regulation (EC) No 954/2006 of 27 June 2006 imposing
chemicals (Singapore) Pte. Ltd and Ecogreen Oleo
definitive anti-dumping duty on imports of certain seamless pipes
chemicals GmbH (herein jointly referred to as ‘Ecogreen’)
and tubes, of iron or steel originating in Croatia, Romania, Russia
lodged an application (Case T-28/12) before the General
and Ukraine, repealing Council Regulations (EC) No 2320/97 and
Court for the annulment of the definitive Regulation as
(EC) No 348/2000, terminating the interim and expiry reviews of
the anti-dumping duties on imports of certain seamless pipes and
tubes of iron or non-alloy steel originating, inter alia, in Russia and
( 1 ) OJ L 343, 22.12.2009, p. 51.
Romania and terminating the interim reviews of the anti-dumping
( 2 ) OJ C 219, 13.8.2010, p. 12.
duties on imports of certain seamless pipes and tubes of iron or
( 3 ) OJ L 122, 11.5.2011, p. 47.
non-alloy steel originating, inter alia, in Russia and Romania and in
( 4 ) OJ L 293, 11.11.2011, p. 1.
Croatia and Ukraine (OJ L 175, 29.6.2006, p. 4).

---

L 352/2
EN
Official Journal of the European Union
21.12.2012
trader and the exporting producer, it is considered appro
Ecogreen, and any difference in treatment would
priate to recalculate the dumping margin of Ecogreen
therefore amount to discrimination.
without making an adjustment pursuant to Article 2(10)(i)
and to amend the definitive Regulation accordingly.
(11) As
regards
the
comments
made
by
PTMM,
it
should
be
noted that it does not follow from the Court judgment in
A. NEW ASSESSMENT OF THE FINDINGS BASED ON
joined Cases C-191/09 P and C-200/09 P that as soon as
THE JUDGEMENT OF THE GENERAL COURT
the existence of a single economic entity is established no
adjustment under Article 2(10)(i) of the basic Regulation
(6)
On the basis of eliminating the adjustment pursuant to
Article 2(10)(i), the dumping margin established for
can be made. The adjustment under Article 2(10)(i) is
Ecogreen, expressed as a percentage of the CIF import
considered to be justified in the case of PTMM as has
price at the Union frontier, duty unpaid, is less than 2 %
been explained in the definitive regulation, in communi
and is therefore considered de minimis in accordance with
cation with the company and below.
Article 9(3) of the basic Regulation. In the light of this,
the investigation should be terminated in respect of
Ecogreen without the imposition of measures.
(12) There
are
a
number
of
differences
in
the
circumstances
of
the two Indonesian exporting producers, in particular the
following in combination: the level of direct export sales
(7) The
dumping
margin
for
all
companies
in
Indonesia,
made by the producer; the significance of the trader’s
other than for the other exporting producer with an
activities and functions concerning products sourced
individual margin, which was based on that of the
from non-related companies; the existence of a contract
cooperating Indonesian exporting producer with the
between the trader and producer, which provided that
highest dumping margin, should be revised to take
the trader was to receive a commission for the export
account of the recalculated dumping margin of Ecogreen.
sales. Given the difference in the circumstances of the
two companies the claim of discrimination has to be
rejected.
B. DISCLOSURES
(8) The
interested
parties
concerned
were
informed
of
the (13) It is noted that PTMM also lodged an application (Case T-
proposal to revise the rates of anti-dumping duty in
26/12) before the General Court for the annulment of
two disclosures, one sent on 13 June 2012 and a
the definitive Regulation as far as the anti-dumping duty
second disclosure sent on 25 September 2012. All
with regard to PTMM was concerned.
parties were granted a period within which they could
make representations subsequent to each disclosure in
accordance with the provisions of the basic Regulation.
(14) One
exporting
producer
in
Malaysia
argued
that
the
recalculation of the margin for Ecogreen, without
(9)
Comments on the disclosure sent on 13 June 2012 were
making an adjustment pursuant to Article 2(10)(i), was
received from P.T. Musim Mas (PTMM), the second
not supported by the judgment in joined Cases C-191/09
exporting producer in Indonesia, from one producer in
P and C-200/09 P or the facts therein. It pointed out that
the Union, and from one exporting producer in Malaysia.
the General Court, in Case T-249/06, had found a
PTMM also asked for an opportunity to be heard by the
manifest error of assessment in applying Article 2(10)(i)
Commission services and was granted such a hearing.
of the basic Regulation in so far as the Council made an
adjustment on the export price charged by Sepco in the
context of transactions concerning pipes manufactured
by Interpipe NTRP VAT, but not those manufactured
by Interpipe Niko Tube ZAT. Ecogreen’s factual circum
(10) PTMM,
for
which
an
adjustment
under
Article
2(10)(i)
stances thus could not simultaneously be similar to those
had also been made, argued that the Court judgment
of Interpipe NTRP VAT and of Interpipe Niko Tube ZAT
in joined Cases C-191/09 P and C-200/09 P should
due to a difference in the situation of those two
result in a recalculation of its dumping margin, similar
companies.
to that made for Ecogreen, without an adjustment being
made pursuant to Article 2(10)(i), as once a single
economic entity made up of the exporting producer
and the trader is established, no adjustments under
Article 2(10)(i) can be made. The company also
(15) This argument is accepted. Indeed, Ecogreen’s situation is
claimed that the burden of proving that an adjustment
similar to that of Interpipe NTRP VAT. This finding
should be made rests with the Institutions, and that they
justifies the need for taking the appropriate steps to
have not proved it in the case of PTMM. It further alleged
recalculate the dumping margin for Ecogreen without
that its circumstances were identical to those of
the Article 2(10)(i) adjustment.

---

EN
21.12.2012 Official
Journal
of
the
European
Union
L
352/3
(16) The exporting producer in Malaysia further argued that
differentiate between the circumstances of Ecogreen and
the situation of Ecogreen as described in the definitive
PTMM respectively.
Regulation is not even similar to that of Interpipe NTRP
VAT. Upon reassessing the precise factual circumstances
of Ecogreen, it is however considered that these are suffi
ciently similar to those of Interpipe NTRP VAT as such
(23) In that regard it is sufficient to note that it is settled case-
control as found by the General Court for Interpipe
law that different treatment of companies that are not in
NTRP VAT when assessing whether the company
an identical situation does not amount to discrimi
carrying out the sales activities is under the control of
nation ( 1 ). Against this background each individual case
the exporting producer or whether there is common
was assessed on its individual merits against the findings
control has been found for Ecogreen and together with
in the judgments of Case T-249/09 and joined Cases
several other factors, as indicated in recital 4, leads to the
C-191/09 P and C-200/09 P.
conclusion that the adjustment under Article 2(10)(i) of
the basic Regulation should not have been made.
(24) First
argument: Level of direct export sales made by the
(17) The
same
exporting
producer
in
Malaysia,
as
an
alter
producer. PTMM submitted that it has no marketing and
native to its argument regarding the similarities
sales division and claimed that all the sales carried out
between the situation of Ecogreen and the circumstances
directly by the producer in Indonesia (and not by the
of Case T-249/06, argued that the disclosure sent on
related trader) were only done so as to comply with
13 June 2012 was insufficient and that additional
legal requirements. The functions of marketing and
disclosure should be made of the essential facts and
sales were carried out by its trader in Singapore. For
considerations on the basis of which the recalculation
this reason, PTMM claimed that this argument does not
for Ecogreen is justified. One producer in the Union
justify the adjustment under Article 2(10)(i) of the basic
also commented that both disclosures referred to in
Regulation nor the distinction drawn between PTMM on
recital 8 were insufficient, and argued that it was
the one hand and Interpipe NTRP VAT on the other.
deprived of its rights of defence.
(25) Article
2(10)
of
the
basic
Regulation
stipulates
that
a
fair
(18) In
this
regard,
it
is
recalled
that
certain
details
relating
to
comparison shall be made between the export price and
specific companies which are confidential in nature
the normal value at the same level of trade with due
cannot be disclosed to third parties. However, the
account taken of differences which affect price compara
nature of the factual circumstances of Ecogreen which
bility. Where the normal value and the export price as
are similar to those of Interpipe NTRP VAT, as
established are not on such a comparable basis, due
indicated at recital 5, was disclosed to interested parties
allowance in the form of adjustments shall be made in
on 13 June and 25 September 2012, who were granted a
each case, on its merits, for differences in factors which
period within which they could make representations
are claimed, and demonstrated, to affect prices and price
subsequent to each disclosure in accordance with the
comparability.
provisions of the basic Regulation.
(26) On
this
basis,
and
as
explained
in
recital
38
of
the
(19) In response to the second disclosure sent on
25 September 2012, the parties mainly reiterated their
provisional Regulation, adjustments for, inter alia,
claims in their responses to the first disclosure of 13 June
differences in commissions between export sales prices
2012.
and domestic sales prices during the original investi

gations were considered warranted due to the differences
in the sales channels between export sales to the
European Union and domestic sales.
(20) PTMM has developed its comments based on its main
claim that the existence of a Single Economic Entity (SEE)
of PTMM and its trader excludes an adjustment under
Article 2(10)(i) of the basic Regulation claiming that
(27) The
arguments
put
forward
by
PTMM
do
not
contradict
the Institutions shift the SEE doctrine laid down by the
the first argument, namely that the level of direct export
Courts to a functional approach where an analysis of the
sales made by PTMM is higher than that of Interpipe
functions of the related trader would be required.
NTRP VAT and that this fact distinguishes PTMM from
Ecogreen. Indeed, given the level of direct export sales, it
can only be concluded that PTMM’s export sales are
performed not only from its related trader in Singapore,
(21) It is noted that this issue turns on a point of law that is a
but also from Indonesia.
subject matter of a pending case.
( 1 ) Case C-248/04, Koninklijke Cooperatie Cosun [2006] ECR I-10211,
paragraph 72, and Case C-303/05 Advocaten voor de Wereld
[2007] ECR I-3633, paragraph 56. Case C-372/06 Asda Stores
(22) Furthermore,
PTMM
claimed
that
the
arguments
in
recital
Ltd v Commissioners of Her Majesty’s Revenue and Customs
12 above are not convincing and do not suffice to
[2007] ECR I-11223, point 62.

---

L 352/4
EN
Official Journal of the European Union
21.12.2012
(28) Second
argument: Significance of the trader’s activities and
Regulation is warranted and the present level of anti-
functions concerning products sourced from non-related
dumping duty should therefore be kept.
companies. PTMM claimed that, whereas it did not deny
that its related trader was involved in a range of different
palm oil-based products, PTMM claimed that this
argument was flawed, since it was based on activities
C. CONCLUSION
beyond the scope of original investigation.
(33) On the basis of the above the duty rates applicable to
Ecogreen and to all other companies in Indonesia (except
P.T. Musim Mas) should be amended. The amended rates
should apply retroactively from the date of the entry into
(29) In
order
to
assess
whether
the
functions
of
a
trader
are
force of Implementing Regulation (EU) No 1138/2011
not those of an internal sales department but comparable
including to any imports subject to provisional duties
to those of an agent working on a commission basis
between 12 May and 11 November 2011. Consequently,
within the meaning of the judgement of the General
the definitive anti-dumping duty paid or entered into the
Court in Case T-249/06, the trader’s activities have to
accounts pursuant to Article 1 of Implementing Regu
be assessed against the economic reality. There are simi
lation (EU) No 1138/2011 in its initial version and the
larities as regards the functions of the trader with regard
provisional anti-dumping duties definitively collected
to the product concerned and the other products traded.
pursuant to Article 2 of the same Regulation in its
This is confirmed by the fact that, as discussed below in
initial version in excess of the duty rate specified in
recitals 30 and 31, the relationship between PTMM and
Article 1(2) of Implementing Regulation (EU) No
its related trader, including the functions of the latter, for
1138/2011 as amended by this Regulation should be
most if not all products — including the product
repaid or remitted. Repayment or remission should be
concerned — is governed by one single contract
requested from national customs authorities in
without distinguishing among products. It should be
accordance with applicable customs legislation,
noted that the trader’s overall activities were based to a
significant extent on supplies originating from unrelated
companies. The trader’s functions are therefore similar to
those of an agent working on a commission basis.
HAS ADOPTED THIS REGULATION:
Article 1
(30) Third
argument: The existence of a contract between the
trader and producer, which provided that the trader was to
The entry for Indonesia in the table in Article 1(2) of Imple
receive a commission for the export sales. PTMM claimed
menting Regulation (EU) No 1138/2011 is replaced by the
that this contract was a master agreement to regulate
following:
transfer prices between related parties to comply with
applicable Indonesian/Singapore tax guidelines and inter
nationally accepted guidelines on transfer pricing.
Definitive anti-dumping
TARIC
Country Company
duty
Additional
(EUR per tonne net)
Code
‘Indonesia P.T.
Ecogreen
0,00
B111
(31) The fact that this agreement can also be used for calcu
Oleochemicals
lating arm’s length prices in accordance with applicable
Batam, Kabil,
tax guidelines does not contradict the finding that
Batam
pursuant to the agreement the trader received a
commission in the form of a fixed mark-up only for
P.T. Musim Mas,
45,63
B112
its international and marketing sales activities. Indeed,
Tanjung Mulia,
the very name and the modalities of the agreement
Medan, Sumatera
justify the finding that the contract was intended to
Utara
govern the relationship between PTMM and the trader
All other
45,63 B999’
and was not limited to the transfer pricing or tax
companies
issues. The contract thus represents circumstantial
evidence that the trader’s functions are similar to those
of an agent working on a commission basis.
Article 2
The amounts of duties paid or entered into the accounts,
(32) In the light of the arguments presented above the Insti
pursuant to Article 1 of Implementing Regulation (EU) No
tutions have met the standard of proof required by the
1138/2011 in its initial version and the amounts of provisional
settled case-law ( 1 ): they based their findings on direct or
duties definitively collected pursuant to Article 2 of the same
at least circumstantial evidence. As regards PTMM, and
Regulation in its initial version, which exceed those established
for reasons explained above, the adjustment made to the
by Article 1 of this Regulation, shall be repaid or remitted.
export prices pursuant to Article 2(10)(i) of the basic
Repayment or remission must be requested from national
customs authorities in accordance with applicable customs legis
( 1 ) T-249/06, paragraphs 180 and 181.
lation.

---

EN
21.12.2012 Official
Journal
of
the
European
Union
L
352/5
Article 3
This Regulation shall enter into force on the day following that of its publication in the Official Journal of the
European Union.
It shall apply from 12 November 2011.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 11 December 2012.
For the Council
The President
A. D. MAVROYIANNIS

---

Document Outline

• �

---