Commission Regulation (EU) No 446/2011Dangos y teitl llawn

Commission Regulation (EU) No 446/2011

of 10 May 2011

imposing a provisional anti-dumping duty on imports of certain fatty alcohols and their blends originating in India, Indonesia and Malaysia

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community(1) (the basic Regulation), and in particular Article 7 thereof,

After consulting the Advisory Committee,

Whereas:

1. PROCEDURE

1.1. Initiation

(1) On 13 August 2010, the European Commission (the Commission) announced, by a notice published in the Official Journal of the European Union (2) (Notice of initiation), the initiation of an anti-dumping proceeding with regard to imports into the Union of certain fatty alcohols and their blends (the product investigated) originating in India, Indonesia, and Malaysia (the countries concerned).

(2) The anti-dumping proceeding was initiated following a complaint lodged on 30 June 2010 by two Union producers, Cognis GmbH and Sasol Olefins & Surfactants GmbH (the complainants). Both these companies are incorporated under German law, with production sites in Germany, France and Italy. These two companies represent a major proportion, in this case more than 25 % of total Union production of the product investigated. The complaint contained prima facie evidence of dumping of the said product originating in the countries concerned and of material injury resulting therefrom, which was considered sufficient to justify the initiation of a proceeding.

1.2. Parties concerned by the proceeding

(3) The Commission officially advised the complainants, other known Union producers, importers/traders and users known to be concerned, the known exporting producers and representatives of the exporting countries concerned of the initiation of the proceeding. Interested parties were given the opportunity to make their views known in writing and to request a hearing within the time limit set in the Notice of initiation.

(4) All interested parties, who so requested and showed that there were particular reasons why they should be heard, were granted a hearing.

(5) In view of the large number of importers identified from the complaint, sampling was envisaged for importers in the Notice of initiation in accordance with Article 17(1) of the basic Regulation. Four importers provided the requested information and agreed to be included in the sample within the deadline set in the Notice of initiation. Given this low number of importers who made themselves known, it was decided not to apply sampling.

(6) The Commission sent questionnaires to exporting producers, Union producers, importers and to all users and suppliers known to be concerned as well as to all other parties who requested so within the deadlines set out in the Notice of initiation.

(7) Questionnaire replies were received from 5 Union producers, 2 importers, 21 users in the Union, 2 exporting producer in India, 2 exporting producers in Indonesia and their related traders, and 3 exporting producers in Malaysia and their related traders.

(8) The Commission sought and verified all the information deemed necessary for a preliminary determination of dumping, resulting injury and Union interest. Verification visits were carried out at the premises of the following companies:

(a)

producers in the Union:

• Cognis GmbH, Germany,

• Cognis France S.A.S., France,

• Sasol Olefins & Surfactants GmbH, Germany;

(b)

importers in the Union:

• Oleo solutions Ltd, United Kingdom;

(c)

users in the Union:

• Henkel AG & Co., Germany,

• PCC Rokita SA, Poland,

• Procter & Gamble International Operations SA, Switzerland,

• Unilever, Netherlands,

• Zshimmer & Schwarz italiana SpA, Italy;

(d)

exporting producers in India:

• Godrej Industries Limited, Mumbai and Taluka Valia,

• VVF Limited, Mumbai;

(e)

exporting producers in Indonesia:

• P.T. Ecogreen Oleochemicals and its related companies, Batam, Singapore, Dessau,

• P.T. Musim Mas and its related companies, Medan, Singapore, Hamburg;

(f)

exporting producers in Malaysia:

• Fatty Chemical Malaysia Sdn. Bhd. and its related companies, Prai, Emmerich,

• KL-Kepong Oleomas Sdn. Bhd. and its related company, Petaling Jaya, Hamburg,

• Emery Oleochemicals Sdn. Bhd., Telok Panglima Garang.

1.3. Investigation period

(9) The investigation of dumping and injury covered the period from 1 July 2009 to 30 June 2010 (‘the investigation 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 investigation period (period considered).

2. PRODUCT CONCERNED AND LIKE PRODUCT

2.1. Product concerned

(10) The product concerned is saturated fatty alcohols with a carbon chain length of C8, C10, C12, C14, C16 or C18 (not including branched isomers) including single saturated fatty alcohols (also referred to as ‘single cuts’) and blends predominantly containing a combination of carbon chain lengths C6-C8, C6-C10, C8-C10, C10-C12 (commonly categorised as C8-C10), blends predominantly containing a combination of carbon chain lengths C12-C14, C12-C16, C12-C18, C14-C16 (commonly categorised as C12-C14) and blends predominantly containing a combination of carbon chain lengths C16-C18, originating in India, Indonesia, and Malaysia (the product concerned), currently falling within CN codes ex 2905 16 85, 2905 17 00, ex 2905 19 00 and ex 3823 70 00.

(11) The product investigated is an intermediary product produced from natural (oleo-chemical) or synthetic (petrochemical) sources, such as natural fats and oils, crude oil, natural gas, natural gas liquids and coal. It is mainly used as an input material for the production of fatty alcohol sulphates, fatty alcohol ethoxylates and fatty alcohol ether sulphates (so-called surfactants). Surfactants are used to produce detergents, household, cleaning and personal care products.

2.2. Like product

(12) The product exported to the Union from India, Indonesia and Malaysia, and the product produced and sold domestically in these countries and also the one manufactured and sold in the Union by the Union producers were found to have the same basic physical and technical characteristics as well as the same uses. They are therefore provisionally considered as alike within the meaning of Article 1(4) of the basic Regulation.

(13) During the course of the investigation, certain parties claimed that one of the complainants produced, in one of its production sites, a product which includes branched isomer molecules, not covered by the product scope definition, and that therefore such production should not be considered as falling within the like product. It is provisionally determined that this claim is warranted, and therefore the data pertaining to this producer have not been used in the injury analysis. It should be noted that two other companies, one of them cooperating in the investigation, were excluded from the definition of the Union industry for the same reason.

3. DUMPING

3.1. India

3.1.1. Normal Value

(14) For the determination of normal value, it was first established for each exporting producer whether its total volume of domestic sales of the like product to independent customers was representative in comparison with its total volume of export sales to the Union. In accordance with Article 2(2) of the basic Regulation domestic sales are considered to be representative when the total domestic sales volume is at least 5 % of the total volume of sales of the product concerned to the Union. It was found that the overall sales by each exporting producer of the like product on the domestic market were representative.

(15) For each product type sold by an exporting producer on its domestic market and found to be directly comparable with the product type sold for export to the Union, it was established whether domestic sales were sufficiently representative for the purposes of Article 2(2) of the basic Regulation. Domestic sales of a particular product type were considered sufficiently representative when the total volume of that product type sold by the exporting producer concerned on the domestic market to independent customers during the IP represented at least 5 % of its total sales volume of the comparable product type exported to the Union.

(16) It was also examined whether the domestic sales of each product type could be regarded as being made in the ordinary course of trade pursuant to Article 2(4) of the basic Regulation. This was done by establishing the proportion of domestic sales to independent customers on the domestic market which were profitable for each exported type of the product concerned during the IP.

(17) For those product types where more than 80 % by volume of sales on the domestic market of the product type were above cost and the weighted average sales price of that type was equal to or above the unit cost of production, normal value, by product type, was calculated as the weighted average of the actual domestic prices of all sales of the type in question, irrespective of whether those sales were profitable or not.

(18) Where the volume of profitable sales of a product type represented 80 % or less of the total sales volume of that type, or where the weighted average price of that type was below the unit cost of production, normal value was based on the actual domestic price, which was calculated as a weighted average price of only the profitable domestic sales of that type made during the IP.

3.1.2. Export price

(19) Both exporting producers in India exported the product concerned directly to independent customers in the Union. Export prices were therefore established on the basis of the prices actually paid or payable by these independent customers for the product concerned, in accordance with Article 2(8) of the basic Regulation.

3.1.3. Comparison

(20) The normal value and the export price of the exporting producers were compared on an ex-works basis.

(21) For the purpose of ensuring a fair comparison between the normal value and export price, due allowance in the form of adjustments was made for differences affecting prices and price comparability in accordance with Article 2(10) of the basic Regulation. On this basis, adjustments for differences in indirect taxes, transport, insurance, handling, loading and ancillary costs, packing costs, credit costs, and commissions have been made where applicable and justified.

(22) Both exporting producers claimed that their sales made to one of the complainants in the Union during the IP should be ignored when calculating the dumping margin since these sales were made in significant quantities and at strongly negotiated prices. However, there is no legal reason why such exports of the product concerned should be ignored when calculating dumping. The claims by both exporting producers are therefore rejected.

(23) Both exporting producers claimed an adjustment for currency conversion arguing that there was a sustained appreciation of the Indian Rupee (INR) against the Euro (EUR) as from November 2009 which would have a distorting effect on the dumping calculations. The claim related to sales made in EUR from January 2010 onwards and consisted of a request that, for the purposes of converting the value of those sales into INR, the exchange rate of the month in which the sales were made be substituted by the exchange rate of 2 months earlier. Article 2(10)(j) indeed provides for an adjustment for currency conversions under certain circumstances. However, it is noted that the appreciation of the INR only occurred during the second half of the IP. Furthermore, it is noted that both Indian companies frequently increased their prices to their main customers in the Union during that period following a fairly regular pattern, and that the prices made in the Union by the complainants were also steadily increasing during the second half of the IP. There is therefore no clear evidence that the appreciation of the INR was not timely reflected in the prices charged by the Indian exporting producers to their customers in the EU or had an undue penalising effect in the dumping calculations. The claims by both companies were therefore rejected.

3.1.4. Dumping margin

(24) In accordance with Article 2(11) and (12) of the basic Regulation, the dumping margins for the cooperating Indian exporting producers were established on the basis of a comparison of the weighted average normal value with the weighted average export price.

(25) Based on information available from the complaint and the cooperating Indian exporting producers, and considering the statistical information available, there are no other producers of the product concerned in India. Therefore, the country-wide dumping margin to be established for India was set at the same level as the highest margin found for a cooperating exporting producer.

(26) On this basis, the provisional dumping margins expressed as a percentage of the CIF Union frontier price, duty unpaid, are as follows:

Company	Provisional dumping margin
Godrej Industries Limited	9,3 %
VVF Limited	4,8 %
All other companies	9,3 %

3.2. Indonesia

3.2.1. Normal value

(27) For the determination of normal value, it was first established for each exporting producer whether its total volume of domestic sales of the like product to independent customers was representative in comparison with its total volume of export sales to the Union. In accordance with Article 2(2) of the basic Regulation domestic sales are considered to be representative when the total domestic sales volume is at least 5 % of the total volume of sales of the product concerned to the Union. It was found that the overall sales by each exporting producer of the like product on the domestic market were representative.

(28) For each product type sold by an exporting producer on its domestic market and found to be directly comparable with the product type sold for export to the Union, it was established whether domestic sales were sufficiently representative for the purposes of Article 2(2) of the basic Regulation. Domestic sales of a particular product type were considered sufficiently representative when the total volume of that product type sold by the exporting producer concerned on the domestic market to independent customers during the IP represented at least 5 % of its total sales volume of the comparable product type exported to the Union.

(29) It was also examined whether the domestic sales of each product type could be regarded as being made in the ordinary course of trade pursuant to Article 2(4) of the basic Regulation. This was done by establishing the proportion of domestic sales to independent customers on the domestic market which were profitable for each exported type of the product concerned during the IP.

(30) For those product types where more than 80 % by volume of sales on the domestic market of the product type were above cost and the weighted average sales price of that type was equal to or above the unit cost of production, normal value, by product type, was calculated as the weighted average of the actual domestic prices of all sales of the type in question, irrespective of whether those sales were profitable or not.

(31) Where the volume of profitable sales of a product type represented 80 % or less of the total sales volume of that type, or where the weighted average price of that type was below the unit cost of production, normal value was based on the actual domestic price, which was calculated as a weighted average price of only the profitable domestic sales of that type made during the IP.

(32) Wherever there were no domestic sales of a particular product type by an exporting producer, the normal value was constructed in accordance with Article 2(3) of the basic Regulation.

(33) When constructing normal value pursuant to Article 2(3) of the basic Regulation, the amounts for selling, general and administrative costs and for profits have been based, pursuant to Article 2(6) chapeau of the basic Regulation, on the actual data pertaining to the production and sales, in the ordinary course of trade, of the like product, by the exporting producer.

3.2.2. Export price

(34) The exporting producers made export sales to the Union either directly to independent customers or through related trading companies located in Singapore and in the Union.

(35) Where export sales to the Union were made either directly to independent customers in the Union or through related trading companies located in Singapore, export prices were established on the basis of the prices actually paid or payable for the product concerned in accordance with Article 2(8) of the basic Regulation.

(36) Where export sales to the Union were made through related trading companies located in the Union, export prices were established on the basis of the first resale prices of these related traders to independent customers in the Union, pursuant to Article 2(9) of the basic Regulation.

3.2.3. Comparison

(37) The normal value and the export price of the exporting producers were compared on an ex-works basis.

(38) For the purpose of ensuring a fair comparison between the normal value and export price, due allowance in the form of adjustments was made for differences affecting prices and price comparability in accordance with Article 2(10) of the basic Regulation. On this basis, adjustments for differences in indirect taxes, transport, insurance, handling, loading and ancillary costs, packing costs, credit costs, and commissions have been made where applicable and justified.

(39) One company claimed an adjustment for differences in physical characteristics on the basis that it exports the product investigated in both liquid and solid form to the EU whilst it only sells it in solid form on the domestic market and that the prices for the liquid form are lower than those for the solid form of the product investigated. However, the company did not provide a quantification of such adjustment. A simple comparison of export prices of solid and liquid forms of the product investigated cannot constitute a basis for granting an adjustment for differences in physical characteristics. Moreover, the accounting system of the company does not allow for a proper segregation of the cost differences between the solid and liquid product. Therefore, there was no reliable way to calculate a potential adjustment and the claim had to be rejected.

(40) The complainants submitted a claim that the cost of energy in Indonesia is distorted due to very cheap and subsidised energy prices. However, they have not submitted any substantiated information on how such distortion of the cost of energy used for domestic and export production would affect the dumping calculations. The claim was therefore rejected.

3.2.4. Dumping margin

(41) In accordance with Article 2(11) and (12) of the basic Regulation, the dumping margins for the cooperating Indonesian exporting producers were established on the basis of a comparison of the weighted average normal value with the weighted average export price.

(42) Based on information available from the complaint and the cooperating Indonesian exporting producers, and considering the statistical information available, there are no other producers of the product concerned in Indonesia. Therefore, the country-wide dumping margin to be established for Indonesia was set at the same level as the highest margin found for a cooperating exporting producer.

(43) On this basis, the provisional dumping margins expressed as a percentage of the CIF Union frontier price, duty unpaid, are:

Company	Provisional dumping margin
P.T. Ecogreen Oleochemicals	6,3 %
P.T. Musim Mas	7,6 %
All other companies	7,6 %

3.3. Malaysia

3.3.1. Normal value

(44) For the determination of normal value, it was first established for each exporting producer whether its total volume of domestic sales of the like product to independent customers was representative in comparison with its total volume of export sales to the Union. In accordance with Article 2(2) of the basic Regulation domestic sales are considered to be representative when the total domestic sales volume is at least 5 % of the total volume of sales of the product concerned to the Union. For two of the cooperating exporting producers it was found that the overall sales by the exporting producers of the like product on the domestic market were representative. For the remaining cooperating exporting producer no independent domestic sales were found in the IP.

(45) For each product type sold by an exporting producer on its domestic market and found to be directly comparable with the product type sold for export to the Union, it was established whether domestic sales were sufficiently representative for the purposes of Article 2(2) of the basic Regulation. Domestic sales of a particular product type were considered sufficiently representative when the total volume of that product type sold by the exporting producer concerned on the domestic market to independent customers during the IP represented at least 5 % of its total sales volume of the comparable product type exported to the Union.

(46) It was also examined whether the domestic sales of each product type could be regarded as being made in the ordinary course of trade pursuant to Article 2(4) of the basic Regulation. This was done by establishing the proportion of domestic sales to independent customers on the domestic market which were profitable for each exported type of the product concerned during the IP.

(47) For those product types where more than 80 % by volume of sales on the domestic market of the product type were above cost and the weighted average sales price of that type was equal to or above the unit cost of production, normal value, by product type, was calculated as the weighted average of the actual domestic prices of all sales of the type in question, irrespective of whether those sales were profitable or not.

(48) Where the volume of profitable sales of a product type represented 80 % or less of the total sales volume of that type, or where the weighted average price of that type was below the unit cost of production, normal value was based on the actual domestic price, which was calculated as a weighted average price of only the profitable domestic sales of that type made during the IP.

(49) Wherever there were no domestic sales of a particular product type by an exporting producer, the normal value was constructed in accordance with Article 2(3) of the basic Regulation.

(50) When constructing normal value pursuant to Article 2(3) of the basic Regulation, the amounts for selling, general and administrative costs and for profits have been based, pursuant to Article 2(6) chapeau of the basic Regulation, on the actual data pertaining to the production and sales, in the ordinary course of trade, of the like product, by the exporting producer.

(51) For the exporting producer with no domestic sales in the IP, the amounts for selling, general and administrative costs and for profits have been based, pursuant to Article 2(6)(a) of the basic Regulation, on the weighted average of the actual amounts determined for the two other exporting producers subject to investigation in respect of production and sales of the like product in the Malaysian market.

3.3.2. Export price

(52) The exporting producers made export sales to the Union either directly to independent customers or through related companies located in the Union.

(53) Where export sales to the Union were made directly to independent customers in the Union, export prices were established on the basis of the prices actually paid or payable for the product concerned in accordance with Article 2(8) of the basic Regulation.

(54) Where export sales to the Union were made through related companies located in the Union, export prices were established on the basis of the first resale prices of these related companies to independent customers in the Union, pursuant to Article 2(9) of the basic Regulation.

3.3.3. Comparison

(55) The normal value and the export price of the exporting producers were compared on an ex-works basis.

(56) For the purpose of ensuring a fair comparison between the normal value and export price, due allowance in the form of adjustments was made for differences affecting prices and price comparability in accordance with Article 2(10) of the basic Regulation. On this basis, adjustments for, transport, insurance, handling, loading and ancillary costs, packing costs, and credit costs have been made where applicable and justified.

(57) One Malaysian exporting producer claimed that its related company in the Union is, in fact, the export department of the manufacturer. On this basis, the company claimed that there would be excessive deductions in establishing the ex-works price if full adjustments for selling, general and administration costs and profits, pursuant to Article 2(9) of the basic Regulation, were made. In this regard, it was found that invoices were issued by the related company to customers in the Union and that payments were received by the related company from customers in the Union. Furthermore, it is to be noted that the sales made by the related company included a mark-up. Also, the financial accounts of the trader showed that it bore normal selling, general and administrative costs incurred between importation and resale. It would therefore appear that the related company indeed performs the typical functions of an importer. On this basis, the company’s claim was rejected.

(58) The complainants submitted in respect of Malaysia the same claim concerning energy costs mentioned at recital (40) for Indonesia. This claim also was rejected for the same reasons.

3.3.4. Dumping margin

(59) In accordance with Article 2(11) and (12) of the basic Regulation, the dumping margins for the cooperating Malaysian exporting producers were established on the basis of a comparison of the weighted average normal value with the weighted average export price.

(60) Based on information available from the complaint and the cooperating Malaysian exporting producers, and considering the statistical information available, there are no other producers of the product concerned in Malaysia. Therefore, the country-wide dumping margin to be established for Malaysia was set at the same level as the highest margin found for a cooperating exporting producer.

(61) On this basis, the provisional dumping margins expressed as a percentage of the CIF Union frontier price, duty unpaid, are:

Company	Provisional dumping margin
Fatty Chemical Malaysia Sdn. Bhd	13,8 %
KL-Kepong Oleomas Sdn. Bhd.	5,0 %
Emery Oleochemicals Sdn. Bhd	5,3 %
All other companies	13,8 %

4. INJURY

4.1. Definition of the Union industry and Union production

(62) During the IP, the like product was manufactured by two known and some other very small producers in the Union. All available information concerning Union producers, including information provided in the complaint and data collected from Union producers before and after the initiation of the investigation, was used in order to establish the total Union production. On this basis, the total Union production was estimated to be between 400 000 and 500 000 tonnes during the IP. The Union producers accounting for the total Union production constitute the Union industry within the meaning of Article 4(1) of the basic Regulation.

(63) Some interested parties claimed that one of the complainants should not be considered part of the Union industry, because this company imported the product concerned during the IP. It was however verified that the percentage of product imported by this company from the countries concerned during the IP was relatively low, and thus not substantial in comparison with its production of the like product. Furthermore, these imports were mainly of a temporary nature. It can therefore be confirmed that the core activity of this company is production and sales of the product investigated in the EU and its main interest is that of a Union producer. In consequence, it is provisionally determined that this claim is not warranted.

4.2. Union consumption

(64) Consumption was established on the basis of the total sales on the Union market of the Union industry, the captive use, and the total imports (derived from Eurostat). Since the Eurostat data include also some products other than the product concerned, appropriate adjustments were made. The information is given in index numbers (2007 = 100) to preserve confidentiality.

Source: Eurostat, complaint data and questionnaire replies.
Union consumption	2007	2008	2009	IP
tonnes	100	102	97	102
Annual Δ%		2,2 %	– 4,8 %	4,6 %

(65) During the period considered, Union consumption increased slightly by 2 %. First, from 2007 to 2008, consumption increased by 2,2 %, followed by a decrease from 2008 to 2009 by 4,8 %. From 2009 to the end of the IP, consumption recovered by 4,6 %.

(66) The economic downturn has contributed to the decrease in consumption from 2008, during which users of the product concerned experienced a drop in demand for their products. At the start of the IP, the market situation started to improve slightly, resulting in an increase in demand for the product concerned compared to the first half of 2009.

4.3. Imports into the Union from the countries concerned

4.3.1. Cumulation

(67) The Commission considered whether the effects of dumped imports from the countries concerned should be assessed cumulatively, on the basis of the criteria set out in Article 3(4) of the basic Regulation. This Article provides that the effects of imports from two or more countries simultaneously subject to anti-dumping investigations shall be assessed cumulatively only if it is determined that (a) the margin of dumping established in relation to the imports from each country is more than de minimis as defined in Article 9(3) of the basic Regulation and that the volume of imports of each country is not negligible and (b) a cumulative assessment of the effects of the imports is appropriate in the light of the conditions of competition between imported products and the conditions of competition between the imported products and the like Community product.

(68) The margins of dumping established in relation to the imports from each country concerned are more than de minimis as defined in Article 9(3) of the basic Regulation, i.e. 2 % of the export prices, and the volume of imports from each country concerned is above the threshold of 1 % market share set by Article 5(7) of the basic Regulation.

(69) The investigation further showed that the conditions of competition both between the dumped imports and between the dumped imports and the like product were similar. It was found that average import prices from all countries concerned dropped over the period considered, and followed the same trend. Furthermore, the product investigated imported from the countries concerned was alike in all respects, it is interchangeable and is marketed in the Union through comparable sales channels and under similar commercial conditions, thus competing with each other and with the product investigated produced in the Union.

(70) On this basis, it is provisionally concluded that all conditions of cumulation are met and that accordingly the effects of the dumped imports originating in the countries concerned should be assessed jointly for the purpose of the injury analysis.

4.3.2. Volume, price and market share of dumped imports from the countries concerned

Source: Eurostat and Questionnaire replies.
Imports from the countries concerned	2007	2008	2009	IP
tonnes	112 523	177 286	165 386	176 279
Index: 2007 = 100	100	158	147	157
Annual Δ%		57,6 %	– 6,7 %	6,6 %
Market share	2007	2008	2009	IP
Index: 2007 = 100	100	154	151	154
Annual Δ%		54,2 %	– 2,0 %	1,9 %
Average price in EUR/tonnes	942	1 017	837	882
Index: 2007 = 100	100	108	89	94
Annual Δ%		8 %	– 18 %	5 %

(71) The volume of imports from the countries concerned increased significantly by 57 % during the period considered. The biggest increase took place between 2007 and 2008 when imports increased by 58 %. Imports then decreased slightly in 2009 to increase again to the 2008 level during the IP.

(72) Average prices of imports from the countries concerned fluctuated heavily during the period considered, reflecting an overall 6 % decrease. Throughout the period considered, average prices of the imports from the countries concerned were always lower than those set by the rest of the world and by the Union Industry, thus resulting in an increase in the market share of the countries concerned.

(73) The market share of the countries concerned increased significantly, by 54 %, during the period considered. The biggest increase took place between 2007 and 2008. There was a slight decrease of imports during the economic crisis, which reduced the market share of the countries concerned by 2 %, between 2008 and 2009, but then they recovered again this market share by the end of the period considered.

4.3.2.1. Price undercutting

(74) For the purposes of analysing price undercutting, the weighted average sales prices per product type of the Union industry to unrelated customers on the Union market, adjusted to an ex-works level, were compared to the corresponding weighted average prices of the imports from the countries concerned to the first independent customer on the Union market, established on a CIF basis, with appropriate adjustments for the existing customs duties and post-importation costs. This price comparison was made for transactions at the same level of trade, duly adjusted where necessary, and after deduction of rebates and discounts. The results of the comparison, when expressed as a percentage of the Union industry’s sales prices during the investigation period, showed significant price undercutting margins (up to 16 %). These price undercutting margins indicate price pressure exerted by the imports from the countries concerned on the Union market.

(75) Per country concerned the undercutting margins were as follows:

Country	Undercutting margin
India	from – 0,5 to 16 %
Indonesia	from – 12,1 to – 3,2 %
Malaysia	from – 10,4 to 15,1 %

4.4. Economic situation of the Union industry (3)

4.4.1. Preliminary remarks

(76) In accordance with Article 3(5) of the basic Regulation, the examination of the impact of the dumped imports on the Union industry included an evaluation of all economic indicators for an assessment of the state of the Union industry from 2007 to the end of the IP.

4.4.2. Production, production capacity and capacity utilisation

Source: Questionnaire replies.
Production Union industry	2007	2008	2009	IP
Index: 2007 = 100	100	90	77	83
Capacity Union industry	2007	2008	2009	IP
Index: 2007 = 100	100	109	103	98
Capacity Utilisation	2007	2008	2009	IP
Index: 2007 = 100	100	83	75	85

(77) From 2007 to 2009, Union production decreased significantly by 23 % to improve slightly between 2009 and the end of the IP, resulting in an overall decrease of 17 % over the period considered. It should be noted that although Union consumption reduced by around 5 % between 2008 and 2009, the production of the Union industry fell much more, by 15 %, and that it failed to benefit from the recovery of the Union consumption experienced in the IP.

(78) The production capacity of the Union industry decreased by around 2 % over the period considered. After increasing around 9 % in 2008, capacity was downsized in the following years, to result in an overall 2 % reduction over the period considered.

(79) However, in line with the decreasing production volumes, the utilisation of the available capacity decreased by 15 % over the period considered. The main decrease occurred in 2009, during the general economic crisis, and improved slightly during the IP.

4.4.3. Sales and market share

(80) The sales figures in the table below relate to the sales volume and value to the first unrelated customer on the Union market.

Source: Eurostat and Questionnaire replies.
Sales volume to unrelated in EU	2007	2008	2009	IP
Index: 2007 = 100	100	85	79	82
Annual Δ%		– 15,4 %	– 6,5 %	4,3 %
Sales in value to unrelated in the EU, (EUR)	2007	2008	2009	IP
Index: 2007 = 100	100	102	85	88
Annual Δ%		1,6 %	– 16,6 %	3,9 %
Market share Union industry	2007	2008	2009	IP
Index: 2007 = 100	100	88	87	88

(81) Sales volumes and market share declined between 2007 and the IP, by 18 % and 12 % respectively. At the beginning of the period considered, from 2007 to 2008, despite an increase in Union consumption, the sales volume of the Union industry decreased by 15 % and they lost 12 % of market share. In 2009, Union consumption contracted, resulting in a further loss in sales volume of 6,5 % for the Union industry. In the IP, in line with the increased Union consumption, Union sales increased slightly. Market share however, remained stable from 2008 to the end of the IP.

4.4.4. Average unit prices of the Union industry

Source: Questionnaire replies.
Unit price, sales in EU to unrelated	2007	2008	2009	IP
Index: 2007 = 100	100	120	107	107
Annual Δ%		20,1 %	– 10,8 %	– 0,4 %

(82) Prices increased significantly from 2007 to 2008, by 20 %. It has to be noted that the exporting producers also raised their prices during this period, although by much less than the Union industry.

(83) In 2009 the Union industry had to reduce prices, in order to respond to the pressure of the increased imports from the countries concerned. In 2008 imports from these countries had grown by 57 % and their prices were significantly lower than the Union industry’s. However, the Union industry was not able to reduce its prices to the same level as the exporting producers.

(84) During the IP, the Union industry kept the 2009 price level, resulting in an overall price increase during the period considered of 7 %.

4.4.5. Stocks

(85) Stock levels of the Union industry decreased by 33 % during the period considered. In particular between 2008 and the IP stock levels decreased significantly by 51 %.

Source: Questionnaire replies.
Closing stocks Union industry	2007	2008	2009	IP
Index: 2007 = 100	100	128	86	67
Annual Δ%		27,7 %	– 33,0 %	– 21,1 %
Stock in relation to production	5,0 %	7,1 %	5,6 %	4,1 %

4.4.6. Employment, wages and productivity

Source: Questionnaire replies.
Employment Union industry	2007	2008	2009	IP
Total employees product concerned (with silent producers) Index: 2007 = 100	100	97	91	87
Avg. Wages per employee (EUR) Index: 2007 = 100	100	102	101	106
Productivity (unit/employee) Index: 2007 = 100	100	93	85	96

(86) Due to the downsizing activities of the Union industry, the number of employees was reduced accordingly during the period considered, by 13 %. Labour costs per employee increased slightly over the period considered, by 6 %. This is considered a natural increase and is less than the inflation rate over the period considered.

4.4.7. Profitability, cash flow, investments, return on investment and ability to raise capital

Source: Questionnaire replies
Profitability EU sales to unrelated	2007	2008	2009	IP
% net loss/turnover Index: 2007 = 100	100	76	408	236
Negative Cash flow Union industry (EUR) Index: 2007 = 100	100	– 249	1 178	439
Cash Flow in % of EU Sales to unrelated	– 1,3 %	3,7 %	– 24,5 %	– 7,9 %
Index: 2007 = 100	100	– 285	1 899	609
Investments Union industry (EUR) Index: 2007 = 100	100	56	68	65
Annual Δ%		– 43,8 %	20,6 %	– 4,2 %
Negative Return on investment Union industry Index: 2007 = 100	100	136	510	320

(87) Profitability of the Union industry was established by expressing the pre-tax net profit (in this case loss) of the sales of the like product as a percentage of the turnover of these sales. It was established that the profitability of the Union industry has been negative since the beginning of the period concerned in 2007 and during the period considered the losses increased significantly. After a reduction in losses in 2008, they increased again significantly in 2009, at the time of the general economic crisis. The economic recovery felt during the IP, however, allowed the Union industry to reduce its losses with respect to turnover, but it remained still far away from returning to positive profit levels.

(88) The trend shown by the cash flow, which is the ability of the industry to self-finance its activities, reflects to a large extent the trend of profitability. The cash flow was negative in 2007 and shows a substantial decrease during the period considered. The same comments can be made about the return on investments, which showed a similar negative development in line with the negative results achieved by the Union industry over the period considered.

(89) Following the above, the ability of the Union industry to invest became limited as the cash flow significantly deteriorated during the period considered. As a consequence, the investments dropped by about 35 % during the period considered.

4.4.8. Growth

(90) The Union consumption remained fairly stable during the period considered. Sales volume and market share of the Union industry however, decreased during this period with 18 % and 12 % respectively.

4.4.9. Magnitude of the actual dumping margin

(91) Given the volume, market share and prices of the dumped imports from the countries concerned, the impact on the Union industry of the actual dumping margins cannot be considered negligible.

4.5. Conclusion on injury

(92) The investigation has shown that most of the injury indicators such as production (– 17 %), capacity utilisation (– 13 %), sales volume (– 18 %), market share (– 12 %) and employment (– 14 %) deteriorated during the period considered. In addition, the injury indicators related to the financial performance of the Union industry such as cash flow and profitability were seriously affected. This means that the ability of the Union industry to raise capital was undermined, in particular during the IP.

(93) In the light of the foregoing, it was concluded that the Union industry suffered material injury within the meaning of Article 3(5) of the basic Regulation.

5. CAUSALITY

5.1. Introduction

(94) In accordance with Articles 3(6) and 3(7) of the basic Regulation, it was examined whether the dumped imports of the product concerned originating in the countries concerned caused injury to the Union industry to a degree that enables it to be classified as material. Known factors other than the dumped imports, which could at the same time be injuring the Union industry, were also examined to ensure that possible injury caused by these other factors was not attributed to the dumped imports.

5.2. Effect of the dumped imports

(95) The investigation showed that the Union consumption remained fairly stable during the period considered, whereas the dumped imports from the countries concerned significantly increased in volume, i.e. by 57 %.

(96) The dumped imports from the countries concerned exerted pressure on the Union industry, particularly in the year 2008, when these imports grew by 58 %. In this year, prices from countries concerned, as derived from Eurostat, were much lower than the Union industry’s. This resulted in a loss of market share of the Union industry of around 12 %, whilst the countries concerned increased their market share by 54 %.

(97) In order to respond to this pressure, the Union industry reduced its prices in 2009. Although volume imports from the countries concerned decreased in volume (– 6,7 %), in line with the economic downturn and the contraction in the EU market, the import price decreased more than the Union industry’s price, and this prevented the Union industry from regaining its lost market share.

(98) During the IP, the Union industry had to further reduce its prices whereby undercutting from the countries concerned, based on verified exporting figures, was still 3 %. Union industry’s sales in volume (+ 4,3 %) and value (+ 3,9 %) recovered slightly, but, even though the price difference with respect to the import price of the countries concerned reduced, the Union industry was unable to benefit from the recovery of consumption, and its market share remained unchanged. In the meantime, imports from the countries concerned experienced a further increase in volume (6,6 %) and market share (2 %) during the IP.

5.3. Effect of other factors

(99) The other factors which were examined in the context of causality are the imports from other countries, export performance of the Union industry and the effect of the economic crisis.

5.3.1. Imports from other countries (Rest of the World – RW)

Source: Eurostat.
Volume of imports RW (Eurostat)	2007	2008	2009	IP
tonnes	32 874	31 446	38 295	30 495
Index: 2007 = 100	100	96	116	93
Annual Δ%		– 4,3 %	21,8 %	– 20,4 %
Market share RW	2007	2008	2009	IP
Index: 2007 = 100	100	94	120	91
Annual Δ%		– 6,4 %	27,9 %	– 23,9 %
Average price in EUR/tonnes RW (Eurostat)	1 217	1 358	1 129	1 122
Index: 2007 = 100	100	112	93	92
Annual Δ%		12 %	– 17 %	– 1 %

(100) Based on Eurostat data, the volume of imports into the Union of the product investigated originating in third countries not concerned by this investigation decreased by 7 % over the period considered. The corresponding market share of these countries decreased also by 9 %.

(101) The average prices of these imports were above those of the exporting producers in the countries concerned and above those of the Union industry.

(102) On the basis of the above, it was provisionally concluded that the imports from these third countries did not contribute to the material injury suffered by the Union industry.

5.3.2. Export performance of the Union industry

Sales volume to unrelated export	2007	2008	2009	IP
Index: 2007 = 100	100	38	52	45
Annual Δ%		– 62,4 %	38,0 %	– 14,0 %
Sales in value to unrelated export	2007	2008	2009	IP
Index: 2007 = 100	100	78	74	76
Annual Δ%		– 21,6 %	– 5,9 %	3,5 %
Unit price, export sales to unrelated	2007	2008	2009	IP
Index: 2007 = 100	100	208	142	171
Annual Δ%		108,4 %	– 31,9 %	20,3 %

(103) During the period considered, the volume of export sales of the Union industry decreased by 55 %. The impact of this decrease was however partly compensated by the fact that the average unit selling price increased by 71 % over the same period, limiting the decrease in export sales value to 24 %. This in combination with the fact that the export sales accounted for only 5 % of its total sales during the IP have lead to the provisional conclusion that the export performance is not a factor that breaks the causal link between the injury suffered by the Union Industry and the imports from the countries concerned.

5.3.3. The impact of the economic crisis

(104) The Economic crisis contributed to the contraction in consumption in the Union and to the price pressure. The reduced level of demand for the product investigated resulted in the decrease in production by the Union industry and contributed to part of the depression of sales prices.

(105) Under normal economic conditions and in the absence of strong price pressure and increased import levels from the dumped imports, the Union industry might have had some difficulty in coping with the decrease in consumption and the increase in fixed costs per unit due to decreased capacity utilisation it experienced between 2007 and the IP. The dumped imports however have intensified the effect of the economic downturn and have made it impossible to sell above cost price.

(106) Based on the above, it appears that the decrease in Union demand linked to the economic crisis contributed to the injury suffered by the Union industry. It is considered however that this does not break the causal link established in relation to the low-priced dumped imports from the countries concerned.

5.4. Conclusion on causation

(107) The above analysis demonstrated that there was a substantial increase in the volume and market share of the low-priced dumped imports originating in the countries concerned over the period considered. In addition, it was found that these imports were made at dumped prices, which were below the prices charged by the Union industry on the Union market for similar product types.

(108) This increase in volume and market share of the low-priced dumped imports from the countries concerned coincided with an overall and continuous decrease of consumption in the Union, during the period considered, but also with the negative development in the market share of the Union industry during the same period. Furthermore, starting from 2008, with the overall economic slowdown and Union consumption decrease, the exporters from the countries concerned managed to maintain their market share, by reducing prices, still undercutting Union price. At the same time, a further negative development in the market share of the Union industry and in the main indicators of its economic situation was observed. Indeed, over the period considered the surge in the low-priced dumped imports from India, Indonesia and Malaysia, which were constantly undercutting the prices of the Union industry, led to a drop in the Union industry’s profitability, resulting in heavy losses in the IP.

(109) The examination of the other known factors which could have caused injury to the Union industry revealed that these factors do not appear to be such as to break the causal link established between the dumped imports from the countries concerned and the injury suffered by the Union industry.

(110) Based on the above analysis, which has properly distinguished and separated the effects of all known factors on the situation of the Union industry from the injurious effects of the dumped imports, it was provisionally concluded that the dumped imports from India, Indonesia and Malaysia have caused material injury to the Union industry within the meaning of Article 3(6) of the basic Regulation.

6. UNION INTEREST

6.1. Preliminary remark

(111) In accordance with Article 21 of the basic Regulation, it was examined whether, despite the provisional conclusion on injurious dumping, compelling reasons existed for concluding that it was not in the Union interest to adopt provisional anti-dumping measures in this particular case. The analysis of the Union interest was based on an appreciation of all the various interests involved, including those of the Union industry, importers and users of the product concerned.

6.2. Union industry

(112) The Union industry has suffered material injury caused by the dumped imports from India, Indonesia and Malaysia. It is recalled that the majority of the injury indicators showed a negative trend during the period considered. In particular, injury indicators related to the financial performance of the Union industry, such as cash flow, return on investments and profitability were seriously affected. In the absence of measures, a further deterioration in the Union industry’s economic situation appears very likely.

(113) It is expected that the imposition of provisional anti-dumping duties will restore effective trade conditions on the Union market, allowing the Union industry to align the prices of the product investigated to reflect the costs of the various components and the market conditions. It can be expected that the imposition of provisional measures would enable the Union industry to regain at least part of the market share lost during the period considered, with a further positive impact on its financial situation and profitability.

(114) It was therefore concluded that the imposition of provisional anti-dumping measures on imports of the product investigated originating in India, Indonesia and Malaysia would be in the interest of the Union industry.

6.3. Importers

(115) Questionnaires were sent to 21 importers in the Union. Only two importers cooperated in the investigation, both located in the United Kingdom, representing, together, 0,3 % of the total imports from the countries concerned, during the IP. Only the bigger of the two importers was visited. On spot, however, this importer refused to give access to his accounts and relevant information couldn’t, therefore, be verified. However, it was clear that, although imposition of anti-dumping measures would mean higher costs for this company, it wouldn’t mean for it very serious problems for its activity, even with the same customers or, if necessary, in changing its area of business.

(116) Based on the information available, it was concluded that although the imposition of provisional anti-dumping measures would negatively impact the above-mentioned importer, this should be in a position to pass at least part of the cost increase to its customers and/or shift to other sources of supply. Therefore, the imposition of provisional measures should not have a significant negative impact on the importers.

6.4. Users

(117) Users of the product investigated have shown a strong interest in this case. Out of the 97 users contacted, 21 cooperated in the investigation. These cooperating users represented around 25 % of the imports in the Union of the product concerned, during the IP. These companies are located throughout the Union and are present in sectors regarding personal care, home and industrial detergent products.

(118) Of the 21 companies, 5 were visited, representing 18 % of total EU imports of the product investigated from the countries concerned for the investigation period. On the basis of the verified information, it appears that the share of the product investigated in these companies’ cost of production structures is significant, ranging between 10 % and 20 %, depending on the final product.

(119) For three of the five visited companies, about 15 % of total employees work in sectors using the product concerned, in one company the percentage is around 70 %, while for the other it was not possible to have this piece of information, because of the complex company structure and variety of products.

(120) For the investigation period, the average share of business using the product investigated of total business, for the companies visited was 22 %, while the average profit margin in this business was about 6 %. On this basis and given the relatively low level of proposed measures, it was estimated that the impact of provisional anti-dumping duties on imports from the countries concerned is overall quite limited. Some users have argued that the imposition of anti-dumping measures would create problems of availability of the product investigated in the Union, considering that there are only two big Union producers and that demand for the product investigated is increasing more and more. However, it should be noted that the relatively low level of proposed measures should not preclude the possibility to import the product investigated from the countries concerned. Furthermore, the two Union producers did not produce at full capacity during the period considered. In addition, imports are also always possible from other third countries, which are not subject to measures. Therefore, this claim was rejected.

(121) Taken the above into consideration, even if most of the users are likely to be negatively impacted by the measures on imports from the countries concerned, the overall impact appears to be limited. Therefore, it was provisionally concluded that, on the basis of the information available, the effect of the anti-dumping measures against imports of the product investigated from the countries concerned will not have a significant negative impact on the users of the product concerned.

6.5. Conclusion on Union interest

(122) In view of the above, it was provisionally concluded that overall, based on the information available concerning the Union interest, there are no compelling reasons against the imposition of provisional measures on imports of the product investigated from the countries concerned.

7. PROVISIONAL ANTI-DUMPING MEASURES

(123) In view of the conclusions reached with regard to dumping, injury, causation and Union interest, provisional anti-dumping measures should be imposed in order to prevent further injury being caused to the Union industry by the dumped imports.

7.1. Injury elimination level

(124) For the purpose of determining the level of these measures, account was taken of the dumping margins found and the amount of duty necessary to eliminate the injury sustained by the Union industry.

(125) When calculating the amount of duty necessary to remove the effects of the injurious dumping, it was considered that any measures should allow the Union industry to cover its costs of production and to obtain a profit before tax that could be reasonably achieved by an industry of this type in the sector under normal conditions of competition, i.e. in the absence of dumped imports, on sales of the like product in the Union.

(126) Therefore, the injury elimination level was calculated on the basis of a comparison of the average price of the dumped imports and the target price of the Union industry. The target price was established by calculating the break even sales price of the Union industry, (since they made losses during the IP) and adding to this sales price a target profit margin. The Union industry claimed that 15 % would be appropriate as target profit margin, but it was unable to substantiate it. Therefore, the target profit margin was provisionally set at 7,7 %, which corresponds to the last profit margin realised by one of the complainants in the last profitable year before the period considered.

(127) The average underselling margin was set at 24,2 % for India, 9,1 % for Indonesia, and 25,7 % for Malaysia.

7.2. Provisional measures

(128) In the light of the foregoing and pursuant to Article 7(2) of the basic Regulation, it is considered that a provisional anti-dumping duty should be imposed on imports of the product concerned originating in India, Indonesia, and Malaysia at the level of the lowest of the dumping and injury elimination level found, in accordance with the lesser duty rule. In all but one case the provisional anti-dumping duty rates are based on the dumping margin.

(129) On the basis of the above, the proposed anti-dumping duty rates, expressed on the CIF Union border price, customs duty unpaid, are provisionally as follows:

Country	Company	Provisional AD duty %
India	VVF Limited	4,8
	All other companies	9,3
Indonesia	P.T. Ecogreen Oleochemicals	6,3
	P.T. Musim Mas	4,3
	All other companies	7,6
Malaysia	KL-Kepong Oleomas (KLK)	5,0
	Emery	5,3
	All other companies	13,8

(130) The individual company anti-dumping duty rates specified in this Regulation were established on the basis of the findings of the present investigation. Therefore, they reflect the situation found during that investigation with respect to these companies. These duty rates (as opposed to the countrywide duty applicable to ‘all other companies’) are thus exclusively applicable to imports of products originating in the countries concerned and produced by the companies and thus by the specific legal entities mentioned. Imported products produced by any other company not specifically mentioned in the operative part of this Regulation with its name and address, including entities related to those specifically mentioned, cannot benefit from these rates and shall be subject to the duty rate applicable to ‘all other companies’.

(131) Any claim requesting the application of these individual company anti-dumping duty rates (e.g. following a change in the name of the entity or following the setting-up of new production or sales entities) should be addressed to the Commission(4) forthwith with all relevant information, in particular any modification in the company’s activities linked to production, domestic and export sales associated with, for example, that name change or that change in the production and sales entities. If appropriate, the Regulation will accordingly be amended by updating the list of companies benefiting from individual duty rates.

(132) In order to ensure the proper enforcement of the anti-dumping duty, the residual duty level should not only apply to the non-cooperating exporting producers but also to those producers which did not have any exports to the Union during the IP.

(133) In the interest of sound administration, a period should be fixed within which the interested parties which made themselves known within the time limit specified in the Notice of initiation may make their views known in writing and request a hearing. Furthermore, it should be stated that the findings concerning the imposition of duties made for the purposes of this Regulation are provisional and may have to be reconsidered for the purpose of any definitive measures,

HAS ADOPTED THIS REGULATION:

(1)

OJ L 343, 22.12.2009, p. 51.

(2)

OJ C 219, 13.8.2010, p. 12.

(3)

The information is based on the verified data submitted by the Union industry in its questionnaire replies and is given in index numbers (2007 = 100) or in a range whenever it is necessary to preserve confidentiality.

(4)

European Commission, Directorate-General for Trade, Directorate H, Office Nerv-105, 1049 Bruxelles, BELGIQUE.