Notice of Initiation of an Anti-Subsidy Proceeding Concerning Imports of Biodiesel Originating in Indonesia

December 18, 2018

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(European Commission) The European Commission (‘the Commission’) has received a complaint under Article 10 of Regulation (EU) 2016/1037 of the European Parliament and of the Council of 8 June 2016 on protection against subsidised imports from countries not members of the European Union (1) (‘the basic Regulation’), alleging that imports of biodiesel, originating in Indonesia, are being subsidised and are thereby causing injury (2) to the Union industry.

1. Complaint

The complaint was lodged on 22 October 2018 by the European Biodiesel Board (‘the complainant’) on behalf of producers representing more than 25 % of the total Union production of biodiesel.

An open version of the complaint and the analysis of the degree of support by Union producers for the complaint are available in the file for inspection by interested parties. Section 5.6 of this Notice provides information about access to the file for interested parties.

2. Product under investigation

The product subject to this investigation is fatty-acid mono-alkyl esters and/or paraffinic gasoils obtained from synthesis and/or hydro-treatment, of non-fossil origin, commonly known as ‘biodiesel’, in pure form or as included in a blend (‘the product under investigation’).

All interested parties wishing to submit information on the product scope must do so within 10 days of the date of publication of this Notice (3).

3. Allegation of subsidisation

The product allegedly being subsidised is the product under investigation, originating in Indonesia (‘the country concerned’), currently falling within CN codes ex 1516 20 98 (TARIC codes 1516209821, 1516209829 and 1516209830), ex 1518 00 91 (TARIC codes 1518009121, 1518009129 and 1518009130), ex 1518 00 95 (TARIC code 1518009510), ex 1518 00 99 (TARIC codes 1518009921, 1518009929 and 1518009930), ex 2710 19 43 (TARIC codes 2710194321, 2710194329 and 2710194330), ex 2710 19 46 (TARIC codes 2710194621, 2710194629 and 2710194630), ex 2710 19 47 (TARIC codes 2710194721, 2710194729 and 2710194730), 2710 20 11, 2710 20 15, 2710 20 17, ex 3824 99 92 (TARIC codes 3824999210, 3824999212 and 3824999220), 3826 00 10 and ex 3826 00 90 (TARIC codes 3826009011, 3826009019 and 3826009030). These CN and TARIC codes are given for information only.

The Commission considers that the complaint includes sufficient evidence that the producers of the product under investigation from Indonesia have benefitted from a number of subsidies in the form of financial contributions and/or income or price support granted by the Government of Indonesia.

The alleged subsidies practices consist, inter alia, of:

(i)	direct transfer of funds such as direct subsidies granted through the Biodiesel Subsidy Fund or provision of export financing and guarantees on preferential terms by the Indonesian Eximbank, and subsidies granted to the palm oil industry benefitting to biodiesel producers;

(ii)	government revenue forgone or not collected, such as Income Tax Benefits for listed investments, Industrial estate subsidies, Pioneer Industry Tax Benefits, Import duty facility and Tax exemption on VAT; and

(iii)

government provision of goods or services for less than adequate remuneration, such as provision of palm oil (CPO).

The complainant further alleges that the above measures amount to subsidies because they involve a financial contribution from the Government of Indonesia (including public bodies) and confer a benefit to the exporting producers of the product under investigation. They are alleged to be limited to certain enterprises or industry or group of enterprises and/or contingent upon export performance and are therefore specific and countervailable. On that basis, the alleged subsidy amounts appear to be significant for the country concerned.

In view of Articles 10(2) and 10(3) of the basic Regulation, the Commission prepared a memorandum on sufficiency of evidence containing the Commission's assessment on all the evidence at the disposal of the Commission and on the basis of which the Commission initiates the investigation. That memorandum can be found in the file for inspection by interested parties.

The Commission reserves the right to investigate other relevant subsidies which may be revealed during the course of the investigation.

4. Allegations of injury and causation

The complainant has provided evidence that imports into the Union of the product under investigation from the country concerned have increased overall in absolute terms and in terms of market share at a significant rate indicating the likelihood of substantially increased imports. Moreover, it is alleged that imports are entering the Union at prices that have already had, among other consequences, negative impact on the level of the sales prices, quantities sold, market share and profits of the Union industry.

Furthermore, the complainant provides evidence that there is sufficient freely disposable capacity in Indonesia indicating the likelihood of substantially increased imports.

In addition, the nature of the alleged subsidies in question is such as to likely cause negative trade effects.

It is also alleged that the flow of subsidised imports is likely to further increase substantially due to the recent reduction and subsequent termination of the anti-dumping measures in place against imports of the product under investigation to the Union (4), as well as the recent imposition of countervailing measures in the United States of America (‘the USA’) against the product under investigation. That indicates a likelihood of a redirection of exports to the Union leading to a substantial increase of subsidised imports. The complainant alleges that those changes in circumstances are clearly expected and imminent. Material injury would occur due to the imminent further subsidised imports.

The complainant also alleges that the flood of unfair imports is the main cause of injury and there are no other factors that appear to attenuate the causal link.

The Commission considers that there is sufficient evidence showing that the volume and the prices of the imported product under investigation have had, among other consequences, a negative impact on the quantities sold and the level of prices charged, resulting in substantial adverse effects on the overall performance of the Union industry.

5. Procedure

Having determined, after informing the Member States, that the complaint was lodged by or on behalf of the Union industry and that there is sufficient evidence to justify the initiation of a proceeding, the Commission hereby initiates an investigation under Article 10 of the basic Regulation.

The investigation will determine whether the product under investigation originating in the country concerned is being subsidised and whether these subsidised imports have caused or threaten to cause material injury to the Union industry.

If the conclusions are affirmative, the investigation will examine whether the imposition of measures would not be against the Union interest.

The Government of Indonesia has been invited for consultations.

Regulation (EU) 2018/825 of the European Parliament and of the Council (5), which entered into force on 8 June 2018, (TDI Modernisation package) introduced a number of changes to the timetable and deadlines previously applicable in anti-subsidy proceedings. In particular, the Commission needs to provide information on the planned imposition of provisional duties 3 weeks before the imposition of provisional measures. The time-limits for interested parties to come forward, in particular at the early stage of investigations, are shortened. Therefore, the Commission invites interested parties to respect the procedural steps and deadlines provided in this Notice as well as in further communications from the Commission.

5.1. Investigation period and period considered

The investigation of subsidisation and injury will cover the period from 1 October 2017 to 30 September 2018 (‘the investigation period’). The examination of trends relevant for the assessment of injury will cover the period from 1 January 2015 to the end of the investigation period (‘the period considered’).

5.2. Comments on the complaint and the initiation of the investigation

All interested parties wishing to comment on the complaint (including matters pertaining to injury and causality) or any aspects regarding the initiation of the investigation (including the degree of support for the complaint) must do so within 37 days of the date of publication of this Notice.

Any request for a hearing with regard to the initiation of the investigation must be submitted within 15 days of the date of publication of this Notice.

5.3. Procedure for the determination of subsidisation

Exporting producers (6) of the product under investigation from the country concerned are invited to participate in the Commission investigation. Other parties from which the Commission will seek relevant information to determine the existence and amount of countervailable subsidies conferred upon the product under investigation are also invited to cooperate with the Commission to the fullest extent possible.

5.3.1. Investigating exporting producers

5.3.1.1. Procedure for selecting exporting producers to be investigated in the country concerned

(a) Sampling

In view of the potentially large number of exporting producers in the country concerned involved in this proceeding and in order to complete the investigation within the statutory time limits, the Commission may limit the exporting producers to be investigated to a reasonable number by selecting a sample (this process is also referred to as ‘sampling’). The sampling will be carried out in accordance with Article 27 of the basic Regulation.

In order to enable the Commission to decide whether sampling is necessary, and if so, to select a sample, all exporting producers, or representatives acting on their behalf, are hereby requested to provide the Commission with information on their companies requested in Annex I to this Notice within 7 days of the date of publication of this Notice.

In order to obtain information it deems necessary for the selection of the sample of exporting producers, the Commission has also contacted the authorities of the country concerned and may contact any known associations of exporting producers.

If a sample is necessary, the exporting producers may be selected based on the largest representative volume of exports to the Union which can reasonably be investigated within the time available. All known exporting producers, the authorities of the country concerned and associations of exporting producers will be notified by the Commission, via the authorities of the country concerned if appropriate, of the companies selected to be in the sample.

In order to obtain information it deems necessary for its investigation with regard to exporting producers, the Commission will send questionnaires to the exporting producers selected to be in the sample, to any known associations of exporting producers, and to the authorities of the country concerned.

Once the Commission has received the necessary information to select a sample of exporting producers, it will inform the parties concerned of its decision whether they are included in the sample. The sampled exporting producers will have to submit a completed questionnaire within 30 days from the date of notification of the decision of their inclusion in the sample, unless otherwise specified.

The Commission will add a note reflecting the sample selection to the file for inspection by interested parties. Any comment on the sample selection must be received within 3 days of the date of notification of the sample decision.

A copy of the questionnaire for exporting producers is available in the file for inspection by interested parties and on DG Trade's website (http://trade.ec.europa.eu/tdi/case_details.cfm?id=2364).

The questionnaire will also be made available to any known association of exporting producers, and to the authorities of the country concerned.

Without prejudice to the possible application of Article 28 of the basic Regulation, exporting producers that have filled in Annex I within the specified deadline and agreed to be included in the sample but are not selected as part of the sample will be considered to be cooperating (‘non-sampled cooperating exporting producers’). Without prejudice to section 5.3.1(b) below, the countervailing duty that may be applied to imports from non-sampled cooperating exporting producers will not exceed the weighted average amounts of subsidisation established for the exporting producers in the sample (7).

(b) Individual amount of countervailable subsidisation for companies not included in the sample

Under Article 27(3) of the basic Regulation, non-sampled cooperating exporting producers may request the Commission to establish their individual subsidy amount. Exporting producers wishing to claim an individual subsidy amount must fill in the questionnaire and return it duly completed within 30 days of the date of notification of the sample selection, unless otherwise specified. A copy of the questionnaire for exporting producers is available in the file for inspection by interested parties and on DG Trade's website (http://trade.ec.europa.eu/tdi/case_details.cfm?id=2364).

The Commission will examine whether non-sampled cooperating exporting producers can be granted an individual subsidy amount in accordance with Article 27(3) of the basic Regulation.

However, non-sampled cooperating exporting producers claiming an individual subsidy amount should be aware that the Commission may nonetheless decide not to determine their individual subsidy amount if, for instance, the number of non-sampled cooperating exporting producers is so large that such determination would be unduly burdensome and would prevent the timely completion of the investigation.

5.3.2. Investigating unrelated importers (8) (9)

Unrelated importers of the product under investigation from the country concerned to the Union are invited to participate in this investigation.

In view of the potentially large number of unrelated importers involved in this proceeding and in order to complete the investigation within the statutory time limits, the Commission may limit to a reasonable number the unrelated importers that will be investigated by selecting a sample (this process is also referred to as ‘sampling’). The sampling will be carried out in accordance with Article 27 of the basic Regulation.

In order to enable the Commission to decide whether sampling is necessary and, if so, to select a sample, all unrelated importers, or representatives acting on their behalf, are hereby requested to provide the Commission with the information on their companies requested in Annex II to this Notice within 7 days of the date of publication of this Notice.

In order to obtain information it deems necessary for the selection of the sample of unrelated importers, the Commission may also contact any known associations of importers.

If a sample is necessary, the importers may be selected based on the largest representative volume of sales of the product under investigation in the Union which can reasonably be investigated within the time available.

Once the Commission has received the necessary information to select a sample, it will inform the parties concerned of its decision on the sample of importers. The Commission will also add a note reflecting the sample selection to the file for inspection by interested parties. Any comment on the sample selection must be received within 3 days of the date of notification of the sample decision.

In order to obtain information it deems necessary for its investigation, the Commission will make questionnaires available to the sampled unrelated importers. Those parties must submit a completed questionnaire within 30 days from the date of the notification of the decision about the sample, unless otherwise specified.

A copy of the questionnaire for importers is available in the file for inspection by interested parties and on DG Trade's website (http://trade.ec.europa.eu/tdi/case_details.cfm?id=2364).

5.4. Procedure for the determination of injury and investigating Union producers

A determination of injury is based on positive evidence and involves an objective examination of the volume of the subsidised imports, their effect on prices on the Union market and the consequent impact of those imports on the Union industry. In order to establish whether the Union industry is injured, Union producers of the product under investigation are invited to participate in the Commission investigation.

In view of the large number of Union producers concerned and in order to complete the investigation within the statutory time-limits, the Commission has decided to limit to a reasonable number the Union producers that will be investigated by selecting a sample (this process is also referred to as ‘sampling’). The sampling is carried out in accordance with Article 27 of the basic Regulation.

The Commission has provisionally selected a sample of Union producers. Details can be found in the file for inspection by interested parties. Interested parties are hereby invited to comment on the provisional sample. In addition, other Union producers, or representatives acting on their behalf, that consider that there are reasons why they should be included in the sample must contact the Commission within 7 days of the date of publication of this Notice. All comments regarding the provisional sample must be received within 7 days of the date of publication of this Notice, unless otherwise specified.

All known Union producers and/or associations of Union producers will be notified by the Commission of the companies finally selected to be in the sample.

The sampled Union producers will have to submit a completed questionnaire within 30 days from the date of notification of the decision of their inclusion in the sample, unless otherwise specified.

A copy of the questionnaire for Union producers is available in the file for inspection by interested parties and on DG Trade's website (http://trade.ec.europa.eu/tdi/case_details.cfm?id=2364).

5.5. Procedure for the assessment of Union interest

Should the existence of subsidisation and injury caused thereby be established, a decision will be reached, under Article 31 of the basic Regulation, as to whether the adoption of anti-subsidy measures would not be against the Union interest. Union producers, importers and their representative associations, users and their representative associations, representative consumer organisations and trade unions are invited to provide the Commission with information on the Union interest.

Information concerning the assessment of Union interest must be provided within 37 days of the date of publication of this Notice unless otherwise specified. This information may be provided either in a free format or by completing a questionnaire prepared by the Commission. A copy of the questionnaires, including the questionnaire for users of the product under investigation, is available in the file for inspection by interested parties and on DG Trade's website (http://trade.ec.europa.eu/tdi/case_details.cfm?id=2364). In any case, the information submitted will only be taken into account if supported by factual evidence at the time of submission.

5.6. Interested parties

In order to participate in the investigation interested parties, such as exporting producers, Union producers, importers and their representative associations, users and their representative associations, trade unions and representative consumer organisations first have to demonstrate that there is an objective link between their activities and the product under investigation.

Exporting producers, Union producers, importers and representative associations who made information available in accordance to the procedures described in sections 5.3, 5.4 and 5.5 above will be considered as interested parties if there is an objective link between their activities and the product under investigation.

Other parties will only be able to participate in the investigation as interested party from the moment they make themselves known, and provided that there is an objective link between their activities and the product under investigation. Being considered as an interested party is without prejudice to the application of Article 28 of the basic Regulation.

Access to the file available for inspection for interested parties is made via Tron.tdi at the following address: https://webgate.ec.europa.eu/tron/TDI. Please follow the instructions on that page to get access.

5.7. Possibility to be heard by the Commission investigation services

All interested parties may request to be heard by the Commission's investigation services.

Any request to be heard must be made in writing and must specify the reasons for the request as well as a summary of what the interested party wishes to discuss during the hearing. The hearing will be limited to the issues set out by the interested parties in writing beforehand.

The timeframe for hearings is as follows:

—	For any hearings to take place before the imposition of provisional measures, a request should be made within 15 days from the date of publication of this Notice and the hearing will normally take place within 60 days of the date of publication of this Notice.

—	After the provisional stage, a request should be made within 5 days from the date of the provisional disclosure or of the information document, and the hearing will normally take place within 15 days from the date of notification of the disclosure or the date of the information document.

—

At definitive stage, a request should be made within 3 days from the date of the final disclosure, and the hearing will normally take place within the period granted to comment on the final disclosure. If there is an additional final disclosure, a request should be made immediately upon receipt of this additional final disclosure, and the hearing will normally take place within the deadline to provide comments on this disclosure.

The outlined timeframe is without prejudice to the right of the Commission services to accept hearings outside the timeframe in duly justified cases and to the right of the Commission to deny hearings in duly justified cases. Where the Commission services refuse a hearing request, the party concerned will be informed of the reasons for such refusal.

In principle, hearings will not be used to present factual information which is not yet on file. Nevertheless, in the interest of good administration and to enable Commission services to progress with the investigation, interested parties may be directed to provide new factual information after a hearing.

5.8. Instructions for making written submissions and sending completed questionnaires and correspondence READ MORE