2000R2603 — EN — 30.04.2004 — 001.001 — 1
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B COUNCIL REGULATION (EC) No 2603/2000
of 27 November 2000
imposing a definitive countervailing duty and collecting definitively the provisional duty imposed
on imports of certain polyethylene terephthalate originating in India, Malaysia and Thailand andterminating the anti-subsidy proceeding concerning imports of certain polyethylene terephthalate
originating in Indonesia, the Republic of Korea and Taiwan
(OJ L 301, 30.11.2000, p. 1)
Amended by:
Official Journal
No page date
►M1 Council Regulation (EC) No 822/2004 of 26 April 2004 L 127 3 29.4.2004
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COUNCIL REGULATION (EC) No 2603/2000
of 27 November 2000
imposing a definitive countervailing duty and collecting definitively
the provisional duty imposed on imports of certain polyethyleneterephthalate originating in India, Malaysia and Thailand andterminating the anti-subsidy proceeding concerning imports of
certain polyethylene terephthalate originating in Indonesia, the
Republic of Korea and Taiwan
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 2026/97 of 6 October
1997 on protection against subsidised imports from countries notmembers of the European Community (
1), and in particular Articles 14
and 15 thereof,
Having regard to the proposal submitted by the Commission after
consulting the Advisory Committee,
Whereas:
A.PROVISIONAL MEASURES
(1) By Commission Regulation (EC) No 1741/2000 (2), (‘provisional
Regulation’), provisional countervailing duties were imposed onimports into the Community of certain polyethylene terephtha-
late originating in India, Malaysia, Taiwan and Thailand.
(2) As a result of a parallel anti-dumping investigation, provisional
anti-dumping duties were imposed under Commission Regula-tion (EC) No 1742/2000 (
3) on imports into the Community of
certain polyethylene terephthalate originating in India, Indonesia,Malaysia, the Republic of Korea, Taiwan and Thailand.
(3) It is recalled that the investigation of subsidisation and injury
covered the period from 1 October 1998 to 30 September 1999
(‘IP’). The examination of trends relevant for the injury analysiscovered the period from 1 January 1996 up to the end of the IP(‘analysis period’).
B.SUBSEQUENT PROCEDURE
(4) Subsequent to the disclosure of the essential facts and considera-
tions on the basis of which it was decided to impose provisionalmeasures, several interested parties submitted comments inwriting. In accordance with the provisions of Article 11(5) ofRegulation (EC) No 2026/97 (‘basic Regulation’), all interestedparties who requested a hearing were granted an opportunity to
be heard by the Commission.
(5) The Commission continued to seek and verify all information
deemed necessary for the definitive findings.
(6) All parties were informed of the essential facts and considera-tions on the basis of which it was intended to recommend theimposition of definitive countervailing duties and the definitivecollection of amounts secured by way of provisional duties.2000R2603 — EN — 30.04.2004 — 001.001 — 2
(1) OJ L 288, 21.10.1997, p. 1.
(2) OJ L 199, 5.8.2000, p. 6.
(3) OJ L 199, 5.8.2000, p. 48.
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They were also granted a period within which they could make
representations subsequent to this disclosure.
(7) The oral and written arguments submitted by the parties wereconsidered, and, where deemed appropriate, taken into accountfor the definitive findings.
(8) Having reviewed the provisional findings on the basis of the
information gathered since then, it is concluded that the main
findings as set out in the provisional Regulation should behereby confirmed.
C.PRODUCT CONCERNED AND LIKE PRODUCT
1.Product concerned
(9) The provisional Regulation described the product concerned as
polyethylene terephthalate (‘PET’) with a coefficient of viscosityof 78ml/g or higher, according to DIN (Deutsche Industrienorm)53728, falling within CN code 3907 60 20 and CN code
ex 3907 60 80 (TARIC code 3907 60 80 10). Since no new
observations were received concerning this definition, the provi-sional findings as regards the product concerned are herebyconfirmed.
2.Like product
(10) In recital 16 of the provisional Regulation, it was found that PET
produced by the Community industry and sold on the Commu-nity market as well as PET produced in the countries concerned
and exported to the Community were like products, since there
were no differences in the basic physical and technical character-istics and uses of the existing different types of PET. Since nonew evidence was submitted on this, the provisional findings asregards the like product are confirmed.
D.SUBSIDIES
(11) The findings made in the provisional Regulation concerning the
countervailable subsidies obtained by the exporting producers
are hereby definitively confirmed, unless it is expressly foundotherwise in this document.
I. INDIA
General issues
1.Initiation
(12) The Government of India (GOI) alleges that the Commission
initiated this investigation in violation of Article 10 of the basicRegulation and Article 11(2) of the WTO Agreement on Subsi-dies and Countervailing Measures (SCM Agreement). The GOIclaims that the information in the complaint regarding subsidisa-tion and injury was inaccurate and incomplete and did not
constitute sufficient evidence in order to initiate this proceeding.
(13) In reply to this argument, it was found that the complaint
contained sufficient evidence of subsidisation and injury withinthe meaning of Article 10(2) of the basic Regulation and Article
11(2) of the SCM Agreement. The complaint contained informa-
tion regarding subsidisation, injury and causality which wasreasonably available to the complainant. As regards subsidisa-tion, it should also be recalled that most of the programmesavailable in India had already been examined and countervailedin previous investigations involving imports from India e.g. PET2000R2603 — EN — 30.04.2004 — 001.001 — 3
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film, flat rolled steel products etc. The evidence in the complaint
was examined by the Commission for its accuracy and adequacyin accordance with Article 10(3) of the basic Regulation, and
was found to be sufficient to warrant initiation. Therefore, this
claim cannot be accepted.
2.Notice of initiation
(14) The GOI alleges that the notice of initiation (1) does not meet the
criteria of Article 22(2) of the SCM Agreement since it did notcontain information on the basis on which subsidisation is
alleged in the application, and a summary of the factors on
which the allegation of injury is based.
(15) Article 22(2) of the SCM Agreement states that a public noticeof an investigation shall contain adequate information on, inter
alia , a description of the subsidy practices and a summary of
the factors on which the allegation of injury is based. As regards
the allegation of subsidisation, it was stated in the notice of
initiation that ‘It is alleged that the producers of the productconcerned from India have benefited from a number of subsidiesgranted by the Government of India. These subsidies are incometax exemption, import of raw materials and capital goodswithout payment of import duties and benefits for export-
oriented companies and companies located in export-processing
zones’, and that ‘It is alleged that the above schemes are subsi-dies since they involve a financial contribution from theGovernment of India and confer a benefit on the recipients, i.e.on exporters of polyethylene terephthalate. They are alleged to
be contingent upon export performance and therefore specific
and countervailable’. As regards the allegation of injury, it wasstated in the notice of initiation that ‘The complainant hasprovided evidence that imports of the product concerned fromIndia, Indonesia, the Republic of Korea, Malaysia, Taiwan andThailand have increased overall in absolute terms and in terms
of market share’ and furthermore that ‘It is alleged that the
volumes and the prices of the imported product concerned have,among other consequences, had a negative impact on the marketshare and the level of prices charged by the Community produ-cers, resulting in substantial adverse effect on the overallperformance and the financial situation of the Community
industry’.
The above text constituted an adequate summary of the allega-
tions relating to subsidy and injury.
Subsidies
1.Duty Entitlement Passbook Schemes (DEPB)
(a) DEPB on pre-export basis
(16) The GOI states that the DEBP on pre-export basis was abolished
on 1 April 2000. Therefore, no countervailing duties should be
imposed under this programme since the imposition of duties
would be contrary to Article 15 of the basic Regulation.
(17) After disclosure, the GOI submitted evidence that thisprogramme effectively expired and will no longer confer benefitsto exporting producers in India. Therefore, this claim is acceptedand the benefit is excluded from the calculation of the subsidyrates. Since this programme is no longer countervailed, it is not2000R2603 — EN — 30.04.2004 — 001.001 — 4
(1) OJ C 319, 6.11.1999, p. 2.
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necessary to deal with other claims made by interested parties
regarding this programme.
(b) DEPB on post-export basis
(18) The GOI states that the Commission made a manifest error in
the assessment of the countervailability of this scheme. In parti-
cular, the Commission wrongly concluded that the GOI has no
verification system in place which verifies which inputs areconsumed in the production process and that this system isapplied effectively. Furthermore, they claim that the Commis-sion's assessment of the benefits under these schemes was
incorrect since only the excess duty drawback could be consid-
ered a subsidy in accordance with Article 2 of the basicRegulation.
(19) The Commission used the following method in order to establishwhether the DEPB on post export-basis constitutes a countervail-able subsidy and if so, to calculate the amount of benefit.Pursuant to Article 2(1)(a)(ii) of the basic Regulation, it isconcluded that this scheme involves a financial contribution by
the GOI since government revenue (i.e. import duties on
imports) otherwise due is not collected. There is also a benefitto the recipient since the exporting producers did not have topay normal import duties.
(20) However, Article 2(1)(a)(ii) of the basic Regulation provides foran exception to this general rule for, inter alia , drawback and
substitution drawback schemes which conform to the strict ruleslaid down in Annex I(i) and Annex II (definition and rules for
drawback) and Annex III (definition and rules for substitution
drawback) thereof.
(21) The analysis revealed that DEPB on post-export basis is not adrawback or a substitution drawback scheme. The scheme inves-tigated lacks a built-in obligation to import only goods that areconsumed in production of the exported goods (Annex II of thebasic Regulation). Additionally, there is no verification system in
place to check whether the imports are actually consumed in the
production process. It is also not a substitution drawback schemebecause the imported goods do not need to be of the same quan-tity and characteristics as the domestically sourced inputs thatwere used for export production (Annex III of the basic Regula-tion). Lastly, exporting producers are eligible for the DEPB
benefits regardless of whether they import any inputs at all. An
exporter obtains the benefit by simply exporting goods withoutthe need to show that any input material was indeed imported;thus, exporting producers which procure all of their inputslocally and do not import goods which can be used as inputs
are still entitled to the DEPB benefits. Hence, the DEPB on
post-export basis does not conform to any of the provisions ofAnnex I to III. Since this exception to the subsidy definition ofArticle 2 therefore does not apply, the countervailable benefit isthe remission of total import duties normally due on all imports.
(22) From the above, it clearly follows that the excess remission ofimport duties is the basis for calculating the amount of thebenefit only in the case of bona fide drawback and substitution
drawback schemes. Since it is established that the DEPB on
post-export basis does not fall in one of these two categories,the benefit is the total remission of import duties, not anysupposed excess remission.
(23) As regards the verification system, this argument relates to theissue whether the DEPB on post-export basis can be consideredas a drawback scheme or a substitution drawback scheme. Sinceit was established that the DEPB on post-export basis is not a2000R2603 — EN — 30.04.2004 — 001.001 — 5
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drawback or a substitution drawback scheme as defined in
Annex II and III of the basic Regulation no further examinationneeds to be carried out. Even if the DEPB were to meet the
criteria of Annex II and III, it would be concluded that no
reasonable verification system exists. The input/output normsare a list of possible items that can be consumed in the produc-tion process and in what amounts. However, the input/outputnorms are not a verification system within the meaning of para-
graph 5 of Annex II of the basic Regulation. These norms do not
provide for a verification of the inputs that are actuallyconsumed in the production process and do not provide for averification system whether these inputs were effectivelyimported.
(24) For the above reasons, this claim cannot be accepted and theprovisional findings as regards the countervailability of thisscheme and the calculation of the benefit are confirmed.
2.Export Processing Zones (EPZ/Export Oriented Units
(EOU))
(25) One exporting producer and the GOI claimed that benefitsobtained under the EOU scheme should not be deemed to consti-tute a subsidy, since the excise tax and duty exemption under
this scheme is only granted for the quantity of inputs consumed
in the production of the final product which is exported. Thescheme, it is alleged, constitutes a drawback system in confor-mity with the conditions laid down in Annex I(i) and Annex IIof the basic Regulation.
(26) Two Indian exporters are located in an EOU. Without prejudiceto the question of whether the scheme constitutes a drawbacksystem in conformity with the provisions of the basic Regula-tion, the Commission, following further examination, accepts
that there is in fact no excess remission of duty in the case of
either company concerned. Consequently, in the present investi-gation the duty exemption on raw material will for thesecompanies not be countervailed.
(27) The subsidy amounts for the two companies located in EPZ/EOU have therefore been limited to the customs duties exemptedon capital goods, and respectively have been reduced to 0,37 %and 4,43 %.
3.Export Promotion Capital Goods Scheme (EPCGS)
(28) The GOI noted that under the EPCG scheme no obligation is
imposed on the beneficiary to export all products manufacturedwith the capital good, and that the license holder is free to sell
part of the production on the domestic market. The GOI there-
fore argued that any benefit conferred under this scheme shouldbe allocated over total production.
(29) In reply to this argument, it should be stressed that, as explained
in recital 52 of the provisional Regulation, depending on the
level of export commitment which the company is prepared toundertake, the company will be allowed to import capital goodsat either a zero rate of duty or at a reduced rate. The scheme istherefore contingent in law upon export performance since no
benefit can be obtained without a commitment to export goods.
As such, it is deemed to be specific under the provisions ofArticle 3(4)(a) of the basic Regulation. Since the subsidy is anexport subsidy, it is considered to benefit only export sales. Inconclusion, the correct denominator is total export sales.
(30) Since no other comments were received regarding this schemesubsequent to the disclosure of the provisional findings, the find-ings of recitals 50 to 57 of the provisional Regulation are herebyconfirmed.2000R2603 — EN — 30.04.2004 — 001.001 — 6
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4.Amount of countervailable subsidies
(31) All subsidies found were identified as being export subsidies.
The amount of countervailable export subsidies, expressed ad
valorem , for the investigated exporting producers is as follows:
Type of subsidyDEPB
EPCGS EPZ/EOU Total
Post-export
Reliance Industries Limited 6,52 % 1,71 % 8,23 %
Futura Polymer Limited 0,37 % 0,37 %
Pearl Engineering Polymers
Limited5,01 % 0,79 % 5,8 %
Elque Polyesters Limited 4,43 % 4,43 %
All Others 8,23 %
(32) The weighted average countrywide subsidy margin for all
exporting producers investigated, which represents above 90 %
of exports of the product concerned to the Community origi-nating in India is above the applicable de minimis margin for
this country of 3 %.
(33) In view of the high level of cooperation, the residual rate fornon-cooperating companies was determined as the rate of thecooperating company with the highest subsidy margin i.e.8,23 %.
II. INDONESIA
(34) Since no substantial comments were received subsequent to the
disclosure of the provisional findings, the conclusion that thesubsidy margin for Indonesia has to be considered negligible
and the findings of recital 78 of the provisional Regulation is
hereby confirmed. Therefore, the proceeding concerning Indo-nesia should be terminated.
III. KOREA
(35) Since no comments were received subsequent to the disclosure
of the provisional findings, the conclusion that the subsidymargin for Korea has to be considered negligible and the find-
ings of recital 79 of the provisional Regulation is hereby
confirmed. Therefore, the proceeding concerning Korea shouldbe terminated.
IV. MALAYSIA
1.Introduction
(36) In the provisional Regulation, the benefit derived from Pioneer
Status was in recital 132 wrongly classified as an export subsidy.However, the findings of countervailability of the scheme inrecitals 93 to 95 as a specific domestic subsidy are herebyconfirmed. This would imply that the amount of subsidy found
should no longer be offset against the anti-dumping duty.
(37) Since no other comments were received subsequent to the disclo-
sure of the provisional findings, the findings of recitals 80 to 133of the provisional Regulation are hereby confirmed, subject tothe correction of certain calculation errors.2000R2603 — EN — 30.04.2004 — 001.001 — 7
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2.Amount of countervailable subsidies
(38) The amount of countervailable export subsidies in accordance
with the provisions of the basic Regulation, expressed ad
valorem , for the investigated exporting producers is as follows:
Type of subsidyExport Domestic Domestic Export
TotalDouble
deductionsPioneer
statusImport duty
exemption
and sales tax
exemptionImport duty
exemption
and sales tax
exemption
Hualon Corporation
(M) Sdn. Bhd.0 3,3 % 0 0,27 % 3,57 %
MPI Polyester
Industries Sdn. Bhd.0 0 0,91 % 0 0,91 %
All others 3,57 %
(39) The weighted average countrywide subsidy margin for all
exporting producers investigated, which represents above 90 %of exports of the product concerned to the Community origi-nating in Malaysia is above the applicable de minimis margin
for this country of 2 %.
V. TAIWAN
(40) One company claimed that the Commission made a calculation
error for its benefit obtained under the scheme for import dutyexemption for machinery. The benefit obtained under thisscheme has been recalculated and it was found that a calculation
error occurred. The error was rectified and the benefit under this
programme is reduced from 1,92 % to 0,27 %.
(41) The Commission hereafter undertook a thorough investigation ofthe whole dossier of Taiwan, including checking the calculationsfor all four exporting producers in order to investigate the impactof this revision for the determination of the countrywide subsidymargin.
(42) It was established that, as a result of the decrease in the subsidy
rate for the above company, the countrywide margin has
decreased to 0,94 %, which is below the de minimis threshold
for this country of 1 %. Therefore, the investigation concerningimports originating in Taiwan should be terminated.
VI. THAILAND
1.General
(43) At the provisional stage, it was found that although one zone in
Thailand (zone 3) is a clearly designated geographical areawhich meets the definition of a disadvantaged region accordingto Article 4(3) of the basic Regulation, the benefits of thedifferent subsidy schemes are sectorally specific since the access
to the programmes is limited to certain industries. The Govern-
ment of Thailand (GOT) claims that the schemes are available toa wide variety of industries and are consequently, generallyavailable.
(44) It was found that the GOT has established a limited list of activ-ities which are eligible for investment promotion, which bydefinition limits the access to the subsidy since companies which
manufacture products which are not promoted are not eligible
for benefits under the Investment Promotion Act. Furthermore,this list should be considered as a positive list, which clearlydefines the specific products, the producers of which arefavoured over others. The fact that the benefits under the Invest-ment Promotion Act are available to 200 different products is2000R2603 — EN — 30.04.2004 — 001.001 — 8
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irrelevant since companies, which do not produce these products
are excluded from any benefit. Therefore, the provisional find-ings as regards specificity are confirmed.
(45) In recitals 193 and 196 of the provisional Regulation, it wasfound that projects which apply for Board of Investment (BOI)incentives need to meet a 20 % value added standard. It wasprovisionally found that this condition encourages enterprises to
use domestic over imported goods and is consequently, specific
under Article 3(4)(b) of the basic Regulation.
(46) After disclosure, the GOT has submitted evidence that the value-added criterion does not mandate PET producers to use domestic
inputs over imported inputs. The GOT provided evidence that
shows that the value-added criterion can be met even if onlyimported raw materials are used for the production of thefinished product. Therefore, for the product under investigation,this programme is not contingent upon the use of domestic over
imported goods within the meaning of Article 3(4)(b) of the
basic Regulation.
2.Corporate income tax exemption
(47) The exporting producer claims that it opted to use its accumu-
lated net losses from the previous years, instead of thecorporate income tax exemption, to offset current taxable profit,
and consequently no benefit was obtained during the period of
investigation.
(48) It was established that a company which benefits from incometax exemption and at the same time can offset its profits against
losses carried forward under normal tax provisions has a choice
to use either option. The Ministry of Taxation and the ThaiBoard of Investment confirmed this. In the present case, it wasestablished that the exporting producer used the corporateincome tax exemption since the amount of taxes payable wasnot offset against the accumulated net losses. In fact, the accu-
mulated net losses increased during the last financial year (from
1 655 089 790 Baht to 1 704 894 309 Baht). If the exportingproducer had opted to offset its profit against the accumulatednet losses, it would not have completed the section on non-taxable income which is only for income benefiting from BOIexemption. Furthermore, the WTO Appellate Body has estab-
lished, in the Canada civil aircraft case (
1), that in order to
determine whether a financial contribution in the sense of Article1(1)(a)(i) of the SCM Agreement confers a ‘benefit’, i.e., anadvantage, it is necessary to determine whether the financialcontribution places the recipient in a more advantageous position
than would have been the case but for the financial contribution.
As mentioned above, the exporting producer is in a more advan-tageous situation through the use of the corporate income taxexemption, because it was able to carry forward for future use agreater amount of accumulated losses than would otherwise havebeen the case. Therefore, the exporting producer used the
income tax exemption and obtained a benefit and this claim
cannot be accepted.
3.Import duty exemption on machinery
(49) Since no comments were received regarding this scheme, the
conclusions of recitals 202 to 208 of the provisional Regulationare hereby confirmed.2000R2603 — EN — 30.04.2004 — 001.001 — 9
(1) Canada — Measures affecting the export of civilian aircraft, Report of the
Appellate Body, Doc. WT/DS70/AB/R, 2 August 1999 (recitals 149 and
sub.)
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4.Amount of countervailable subsidies
(50) On the basis of the comments received after the provisional find-
ings, the amount of countervailable subsidies in accordance withthe provisions of the basic Regulation, expressed ad valorem , for
the investigated exporting producer is determined at the
following rate:
Income tax exemptionImport duty exemption
on machineryTotal
Thai Shingkong,
Industry Corpora-tion Limited8,13 % 0,35 % 8,4 %
(51) Since the investigated exporting producer accounted for virtually
all of the imports of the product concerned into the Communityoriginating in Thailand, the weighted average countrywidesubsidy margin is well above the applicable 2 % de minimis
margin for subsidisation.
E.DEFINITION OF THE COMMUNITY INDUSTRY
(52) In the absence of any new information submitted with respect to
the definition of the Community industry, the findings as set outin recitals 226 to 231 of the provisional Regulation areconfirmed.
F.INJURY
1.Preliminary remarks
(53) Certain interested parties questioned why data submitted by the
Community industry was only used for the period 1996 onwards
whilst developments in the market prior to this period were
based on independent market research information.
(54) The Commission had considered that the data submitted by the
Community industry for the year 1995 could not be used due to
the split of Kodak and Eastman in 1995 and to the restructuringof the activities of Shell. Neither Shell nor Eastman was able toprovide complete figures for this year.
(55) However, the Commission had considered it essential to give anoverview of the shortage crisis that occurred in the Communitymarket in 1995 in view of the impact of this event on both theprices and profitability of the Community industry. As such the
use of independent market research information was considered
appropriate in establishing the necessary background data forthe evaluation of the situation of the Community industry duringthe analysis period, as explained in recital 236.
2.Consumption
(56) In the absence of any new information submitted to the contrary,
the findings concerning the consumption of the productconcerned in the Community as detailed in recitals 239 and 240of the provisional Regulation are confirmed.
3.Imports from the countries concerned
Imports originating in Korea, Indonesia and Taiwan
(57) The findings as described in recital 242 of the provisional Regu-
lation concerning the de minimis subsidy margins for imports
originating in Korea and Indonesia are confirmed. Both countries
are thereby excluded from the injury assessment.
(58) In the light of new findings described above, subsidy margins
found for imports originating in Taiwan are now de minimis ,2000R2603 — EN — 30.04.2004 — 001.001 — 10
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therefore, those imports are not taken into consideration for the
injury assessment.
Imports originating in India, Malaysia and Thailand(a) Cumulation
(59) The GOT claimed that imports originating in its country should
not be assessed cumulatively with the other imports concernedbecause imports originating in Thailand had the smallest marketshare of the three countries considered and they did not undercutCommunity industry prices, thus showing that the Thai exporter
did not exhibit the same behaviour as the exporters from the
other countries. It was considered that these elements were notnew, this claim was therefore rejected and it is confirmed thatimports originating in Thailand should be assessed cumulativelywith imports originating in India and Malaysia.
(60) The governments of India and Malaysia claimed that only subsi-dised imports originating in their respective countries should becumulated. As it was established that the countrywide weighted
average subsidy margins for all investigated imports originating
in India and Malaysia were above the applicable de minimis
margins for subsidisation, all their exports to the Communityhave to be taken into account. This claim has thus been rejectedand it is concluded that all imports originating in India, Malaysiaand Thailand should be cumulated in order to assess the injury
suffered by the Community industry.
(b) Volume of imports
(61) As the following table indicates, the volume of imports origi-
nating in India, Malaysia and Thailand increased sharplybetween 1996 and the IP (an increase of nearly seven times) to
reach a level of 123 563 tonnes.
Imports 1996 1997 1998 IP
Total: India,
Malaysia, Thailand17 831 t 44 708 t 118 113 t 123 563 t
Index (1996-100) 100 251 662 693
(62) After dramatic growth between 1996 and 1998 when imports
more than doubled each year, the growth in imports levelled offfrom 1998 to the IP. It should be noted however that importscontinued to increase, albeit at a slower rate, despite the effort
made by the Community industry to match the price competition
of the subsidised imports and regain market share.
(c) Market shares
(63) The market share of imports concerned developed as follows:
Market shares of imports 1996 1997 1998 PI
Total: India,
Malaysia, Thailand2,2 % 4,1 % 9,0 % 9,2 %
Index (1996-100) 100 190 417 424
(64) The market share of imports originating in India, Malaysia and
Thailand reached 9,2 % during the IP. This figure was morethan four times the level achieved in 1996, the start of theanalysis period. Between 1998 and the IP, the market share ofthese imports levelled off, as result of the slowdown in importvolumes described above.2000R2603 — EN — 30.04.2004 — 001.001 — 11
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(d) Prices of imports
(65) The prices of imports concerned originating in India, Malaysia
and Thailand decreased by 34 % over the period 1996 to theIP. On an annual basis they fell by 16 % between 1996 and1997, by 5 % between 1997 and 1998 and by 13 % between1998 and the IP. On average, the cif duty unpaid price for the
product concerned originating in these countries was 516 EUR/t
during the IP. It was confirmed, during the investigation, that alarge number of exporters were selling at a loss to the Commu-nity, indicating an aggressive pricing policy regarding theCommunity market.
(e) Price undercutting
(66) The price undercutting by the subsidised imports, calculated as
detailed in recital 254 of the provisional Regulation, isconfirmed as follows:
Undercutting margins: ranges
India Malaysia Thailand
1,2 - 7,9 % 11,8 - 12,9 % 0 %
(67) In the absence of any representations and new information from
interested parties to suggest the contrary, the findings concerning
price undercutting as noted in recital 254 of the provisionalRegulation are confirmed. In particular it is noted that the lowaverage rates of undercutting were due to the price suppressionbrought about by the behaviour of the exporting producers in
the countries concerned which sold the product concerned on
the Community market at prices which were not only subsidisedbut also loss-making.
4.Impact of the change in imports concerned for the assess-
ment of injury and causation
(68) It is to be noted that the exclusion of the imports originating inTaiwan from the injury analysis does not change the trendsestablished for the imports concerned in the provisional Regula-tion. It is thus concluded that the findings established in theprovisional Regulation regarding the impact of the importsconcerned on the situation of the Community industry and the
causal link are not changed by the revised information shown
above.
5.Situation of the Community industry
(69) In accordance with Article 8(5) of the basic Regulation, the
examination of the impact of the subsidised imports on the
Community industry included an evaluation of all relevant
factors and indices having a bearing on the state of the Commu-nity industry.
The examination included all factors specifically listed in Article
8(5) of the basic Regulation. However, certain factors are notdealt with in detail as they were found not to be relevant for
the assessment of the situation of the Community industry in
the course of the investigation (wages and stocks see below).As concerns the impact on the Community industry of themagnitude of the amount of countervailing subsidies, given thevolume and the prices of the imports from the countriesconcerned, this impact cannot be considered to be negligible.2000R2603 — EN — 30.04.2004 — 001.001 — 12
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Factors examined in the provisional Regulation
— Investments:
(70) It was found that some investments made by a cooperating
Community producer had not been taken into account at theprovisional stage. After the inclusion of these figures, the invest-ment situation does not change the trend previously established.
Some interested parties argued that the extent of the investments
made in 1998 by the Community industry indicated that it was ingood financial health. Others remarked that if the level of invest-ments was low during the IP, this was a consequence of the
previous years in which the Community industry had registered
losses and that this could not be attributed to the effect of thesubsidised imports during the IP.
In this respect, the investigation has clearly shown that invest-
ment expenditure made in 1997, 1998 and in the IP was mostlya consequence of decisions taken in 1995 when prospects in thePET sector were good (although losses were incurred in 1996this situation was considered to be temporary). In such anindustry, it is more relevant to examine plans to invest than the
timing of actual expenditure. As stated in recital 264 of the
provisional Regulation, it is confirmed that, as a consequenceof the further deterioration of its financial situation due to injur-ious subsidisation during the IP, the Community industry has notplanned any significant expansion in capacity to meet increases
in future demand.
— Wages and stocks:
Wages and stocks were also examined, however wages were not
considered to be a relevant factor given that their share in theoverall costs is small and remained stable over the analysisperiod. As concerns stocks, given the seasonal nature of thePET market stock levels were found to vary significantlythroughout the year and were therefore not considered to be
meaningful for the injury analysis.
— Growth:
Although it was not explicitly mentioned in the provisional
Regulation, the Commission also examined growth in its analysisof market share which revealed a slight loss for the Communityindustry over the analysis period.
Other factors examined
(71) The situation of the Community industry regarding the following
indicators was further examined.
— Ability to raise capital:
As already mentioned in the provisional Regulation, the level
of losses experienced during the IP was such that no newinvestment plan could be agreed during the IP. This clearlydid not improve the Community industry's ability to raisecapital during this period despite the anticipated increase in
demand.
— Productivity:
The productivity in terms of tonnes produced per employee
increased by 67 % from 1996 to the IP and by 21 % from1998 to the IP. Such a considerable increase in productivityshows that the Community industry made all possible effortsto remain competitive.2000R2603 — EN — 30.04.2004 — 001.001 — 13
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— Return on investments (ROI):
1996 1997 1998 IP
Return on capital
employed (1)–6% –7% 1% –8%
(1) Return on capital employed is defined as pre-tax profit after proper adjustment for any preference
share dividends, debenture and long-term loan interest paid/received in arriving at that figure asdivided by total share capital and reserves together with debentures and other long-term loans.
The above indicator reflects the overall situation of the
Community industry (including mostly PET business lines).The verification showed that a large part of the negativetrend in the IP could be attributed to the PET sector. Thisindicator is in line with the deterioration of the profitability
of the Community industry.
— Cash flow:
(EUR)
1996 Net cash in(out)flow from operating
activities– 79 002 884
1997 Net cash in(out)flow from operating
activities84 901 988
1998 Net cash in(out)flow from operating
activities132 915 718
IP Net cash in(out)flow from operating
activities51 115 757
The above indicator reflects the overall situation of the
Community industry (including mostly PET business lines).It represents the gross operational result of these companies,
before financial charges, depreciation and provisions. The
verification showed that a large part of the deterioration inthe IP is attributable to the PET sector.
6.Further arguments raised
(a) General arguments raised as to the Commission's conclu-
sions
(72) Some interested parties questioned the Commission's conclusionson injury since some of the injury indicators showed eitherincreasing or stable trends. In this respect, a number of interestedparties pointed to the low level of price undercutting, theincrease in sales volume and the overall stability of market
share. They considered these indicators showed that the Commu-
nity industry was in good health and that although prices werevery low, they were at normal levels taking into accountprevailing market conditions.
(73) This argument could not be accepted. As established in theprovisional Regulation, the increase in sales and the recovery ofmarket share in the IP, after a loss of 5 percentage pointsbetween 1997 and 1998, occurred when the Community industryconsiderably decreased its prices to match those of subsidised
imports. As explained in the provisional Regulation, it was
established that imports were made at subsidised prices. In thisrespect, the low level of price undercutting resulted from thefact that the Community industry's prices were depressed duringthe IP. This price depression was the result of the subsidisedimports which were substantial in terms of volume and market2000R2603 — EN — 30.04.2004 — 001.001 — 14
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share and which forced the Community industry to react by
decreasing its prices.
(b) Developments occurring after the IP
(74) Many interested parties and delegates from the Member States
requested the Commission to analyse and take into accountcertain developments that occurred after the IP. In particularthese parties underlined the rapid and substantial rise in Commu-
nity industry PET prices in relation to the increase in the cost of
raw materials. According to these parties, the Community indus-try's situation had improved dramatically since the IP and it waslikely that the Community industry was no longer sufferingmaterial injury.
(75) It should be recalled that Article 11(1) of the basic Regulationprovides that information relating to a period after the IP should,normally, not be taken into account. On the basis of the case lawof the Court, developments after the IP can only be taken into
consideration if they make the imposition of countervailing
measures manifestly unsuitable.
(76) The Commission analysed developments in the PET market
during the nine-month period following the IP, i.e. 1 October
1999 to 30 June 2000. It was found that the prices for PET salesmade by the Community industry on the Community marketshowed a continued increase. The average selling price for thenine-month period was around 40 % higher than the averagefound for the IP. This increase was more rapid than the increase
in costs (around 20 %) leading to an improvement of the
Community industry's financial situation. Nonetheless, onaverage, during this nine-month period, the return on sales forthe Community industry was still negative at – 2 % indicatingthat its financial performance remained unsatisfactory and far
from the level that can ensure the viability of this industry.
(77) This dramatic change in prices is, to a large degree, due to the
increase in crude oil prices that has occurred since the middle of1999 and which noticeably affected all polymer prices a few
months later. It should also be noted that there has been a steady
increase in sales and market share of the Community industry atthe expense of subsidised imports. However, the decrease in thevolume of subsidised imports may be a consequence of theopening of an anti-subsidy investigation. In the present case, the
development in the dollar/euro exchange rate also rendered the
imports concerned less attractive.
(78) It is to be noted that exchange rates, as well as the crude oilprice, are extremely volatile and changes may be temporary.
Furthermore, should the on-going anti-subsidy investigation be
terminated without imposing measures, subsidised imports couldrapidly regain market share.
(79) On the basis of the above, it was concluded that developmentsoccurring after the IP do not show that the injury caused bysubsidised imports has disappeared. As a result, the impositionof countervailing measures is not manifestly unsuitable.
7.Conclusion on injury
(80) Given that no other arguments were received regarding the
injury suffered by the Community industry, the conclusion thatthe Community industry has suffered material injury within themeaning of Article 8 of the basic Regulation as set out in recitals265 to 268 of the provisional Regulation, is hereby confirmed.
G.CAUSATION
(81) Several interested parties continued to argue that the Commis-
sion wrongly concluded that imports originating in the countriesconcerned were the cause of the injury suffered by the Commu-nity industry whereas, in their opinion, the situation of this2000R2603 — EN — 30.04.2004 — 001.001 — 15
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industry and the level of prices on the Community market were
due to a combination of other factors. In this context, they reit-erated the points already raised at the provisional stage
(including the price of raw materials, the situation of overcapa-
city, the competition between PET producers).
(82) Given that no other arguments were received regarding the causeof the injury suffered by the Community industry, the conclusionthat imports of PET from the countries concerned had causedinjury to the Community industry as stated in recital 290 of the
provisional Regulation is hereby confirmed.
H.COMMUNITY INTEREST
1.Likely effect of the imposition of measures on downstream
industries
(a) Further investigation
(83) In view of the low level of cooperation from the users during the
first stage of the investigation, the Commission decided to inves-tigate further the likely effect of the imposition of measures onthe downstream industries. Therefore, the Commission sent out
90 new, simplified questionnaires to users of PET, some of
which had already been contacted but had not replied. 19previously non cooperating companies submitted meaningfulresponses within the time limits set.
The new cooperating companies are:
— three preform/bottle converters:
Lux PET GmbH & Co. (Luxembourg)
Puccetti SpA (Italy)EBP SA (Spain)
— four producers of PET films and sheets using the product
concerned:
RPC Cobelplast Montonate Srl (Italy)
Moplast SpA (Italy)Alusuisse Thermoplastic (UK)Klöckner Pentaplast BV (The Netherlands)
— four producers of soft drinks:
L'Abeille (France)
Pepsico Food Beverages Intl. Ltd (Italy)Pepsico France (France)
Europe Embouteillage Snc (France)
— eight producers of mineral and spring water:
Aguas Minerales Pasqual SL (Spain)
Eycam Perrier SA (Spain)Font Vella SA & Aguas de Lanjarón SA (Spain)Italaquae SpA (Italy)Neptune SA (France)Roxane SA (France)San Benedetto (Italy)Società generale delle acque minerali arl (Italy)
In total, the data submitted by the companies that completed
either the first or the second questionnaire covered 26 % of the
Community PET consumption during the IP. The cost figures
established by aggregating this information have been consideredrepresentative of the various user sub-sectors, as individualcompany information showed a large level of consistency amongcompanies belonging to the same sub-sectors.2000R2603 — EN — 30.04.2004 — 001.001 — 16
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(84) After the imposition of provisional measures, several submis-
sions by users or their representative associations were
received. These mostly comprised comments on the past devel-opments in the PET market and discussions on the possibleimpact of measures on the user sectors. These submissions origi-nated from:
— Schmalbach-Lubeca, the biggest converter in Europe (18 %
of Community PET consumption);
— the ‘European Plastic Converters’ association (EUPC);— UNESDA, an association representing soft drink producers;— the Nestlé group, reiterating that the figures given for the
French market are representative of their overall Europeanmarket. (The total European purchases of PET by the group
represent some 9 % of the Community consumption of PET
of which 3 % is for the French market only).
These submissions, as well as those made by associations repre-
senting the water producers (that had made themselves knownduring the first stage of the investigation) have been taken into
account, and in total all submissions represent at least half of
the market.
(b) Description of the user sectors
(85) After having analysed all the information provided, it was found
that the user sector, previously considered as three groups
(preform makers, water producers and integrated soft drinkproducers), is more accurately described as two groups:
— The converters, including manufacturers of preforms and
bottles as well as producers of sheets. These users areperforming a simple transformation activity; therefore thecost of PET is by far their main cost element. The manufac-turers of bottles and preforms sell the vast majority of their
production to bottlers of non-alcoholic drinks. The sheet
producers, that represent only a small proportion of theconverters sector, sell to many different types of industriesthat use sheets mainly to package their goods.
— The bottlers of non-alcoholic drinks, including water carbo-
nated and non-carbonated soft drinks, milk, fruit juices etc.The division of this group of users between producers of
water and soft drinks is not relevant since in many cases the
same manufacturer bottles both water and soft drinks. It ismore relevant to distinguish between the different drinksthey manufacture since, in relative terms, the share of PETin their cost of production depends on the intrinsic cost of
those drinks (sodas or fruit juices require more expensive
inputs than water). In any case, PET remains a fairly impor-tant cost element and problems faced by bottlers regardingtheir supply of PET are similar whatever the product theybottle.
(86) It is to be noted that there is a very close operational linkbetween the converters (with the exception of sheet manufac-turers) and bottlers.
— Bottlers buy almost all the production of the converters.
— Every converter has a very limited number of clients (often
only one).
— Converters operate on a contractual basis with their clients,
and these contracts very often either include provisions thatautomatically take into account changes in the price of PET
or are renegotiated on a regular basis.
Consequently, the impact of measures as described below should
not be cumulated as most of the impact of the measures will bedirectly passed on to the converters' main clients i.e. the bottlersof non-alcoholic beverages.2000R2603 — EN — 30.04.2004 — 001.001 — 17
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(c) Foreseeable impact of measures on the users
(87) After taking into account the new figures provided, the situation
of the users, which supplied fully quantified information, was asfollows:
Consumption
of PET as %
of Community
consumptionPET as % of
the cost of
productionEmployees
involved in
products using
PET
Converters Preform and
bottle producers7 66 770
Sheet producers 1 55 186
Bottlers of non-
alcoholic drinksMineral and
spring water18 24 6 766
Soft drinks 1 9 298
TOTAL 26 8 020
(d) Impact on converters
(88) It was estimated that the imposition of the countervailing
measures proposed, taking into account their volumes of PET
purchases originating in the countries concerned during the IP,
would result in an increase of 0,75 % in the cost of productionof converters making preforms and bottles. In the same terms,the impact of measures on the sheet producers would be around0,4 %. Due to their contractual link with their customers, it is
likely that converters will be able to pass most of this increase
in cost on to their clients. The impact of countervailing measureson the profitability of these companies is therefore estimated tobe very limited.
(e) Impact on bottlers of non-alcoholic drinks
(89) It was estimated that the imposition of countervailing measures
proposed, taking into account their volumes of PET purchasesoriginating in the countries concerned during the IP, would resultin an average increase of less than 0,2 % in the cost of produc-tion of bottlers of non-alcoholic drinks. It can thus be considered
that the increase in costs would be negligible.
2.The retail price of drinks
(90) It was found that the prices of bottled water and soft drinks have
increased at a relatively constant rate of 1-2 % per year over thepast decade (Eurostat retail price index statistics). During the
same period the prices of PET have been extremely volatile,
without, however, influencing the retail prices of bottled waterand soft drinks. Therefore, the claim about the potential infla-tionary impact of measures on retail prices of bottled water andsoft drinks is rejected.
3.Likely effect of the imposition of measures on the
Community industry and the upstream industries
(91) The measures proposed would, in all likelihood, benefit theCommunity industry, which, by its restructuring efforts andimpressive increase in productivity, has demonstrated its deter-
mination to maintain its presence in the rapidly growing
Community market. The imposition of measures will allow thisindustry to improve profitability and to have the possibility ofmaking the new investments, which are crucial, in such acapital-intensive activity, to insure its long-term viable presencein the Community.2000R2603 — EN — 30.04.2004 — 001.001 — 18
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(92) Since the situation of the Community upstream industry is
dependent on the financial health of Community PET producers,
the improvement of the situation of the latter due to the imposi-tion of measures will also benefit the upstream industry. This hasbeen confirmed by cooperating companies in the upstream indus-tries.
4.Conclusions on Community interest
(93) On the basis of the additional information obtained from users, it
is concluded that the impact of the measures on users would belimited. Indeed, as converters are able to pass most of theincrease in costs on to their clients, the consolidated impact of
measures on the producers of drinks is estimated to be marginal
on the overall profitability of this sector.
(94) In addition, it is confirmed that the delocalisation of the produc-tion of preforms outside the Community is not likely, that retailprices of non alcoholic drinks are not usually much affected byfluctuations in PET prices and that the imposition of measures is
clearly in the interest of the Community industry and of the
upstream industries.
(95) Given that no other arguments were received regarding Commu-nity interest, the conclusion of the provisional Regulation thatthere are no compelling reasons not to impose measures, as setout in recital 344 thereof, is hereby confirmed.
I.NON-IMPOSITION OF DUTIES
(96) In the light of the above findings that the countrywide weighted
average subsidy margin for imports originating in Indonesia,Korea and Taiwan are de minimis , it is definitively decided not
to impose countervailing measures as regards imports originating
in these countries. Consequently, the proceeding in respect of
imports from these countries should be terminated.
J.DEFINITIVE COURSE OF ACTION
(97) In view of the conclusions reached regarding subsidisation,
injury, causation and Community interest, it is considered that
definitive countervailing measures should be taken in order toprevent further injury being caused to the Community by subsi-dised imports originating in India, Malaysia and Thailand.
(98) In the absence of any new information, the methodology usedfor establishing the injury elimination level as described in reci-
tals 349 and 350 of the provisional Regulation is hereby
confirmed.
(99) In order to avoid that fluctuations in PET prices caused by fluc-tuations in crude oil prices should result in higher duties beingcollected, it is considered appropriate that duties in the form ofa specific amount per tonne should be imposed. These amounts
result from the application of the countervailing duty rate to the
cif export prices used for the calculation of the injury elimina-tion level during the IP.
(100) This led to the following countervailing duty rates (EUR pertonne) for the cooperating exporting producers:
(a) INDIA
Reliance Industries Limited 41,3 EUR/t
Pearl Engineering Polymers Limited 31,3 EUR/tElque Polyesters Limited 22,0 EUR/tFutura Polymer Limited 02000R2603 — EN — 30.04.2004 — 001.001 — 19
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(b) MALAYSIA
MPI Polyester Industries Sdn. Bhd. 0
Hualon Corporation (M) Sdn. Bhd. 16,6 EUR/t
(c) THAILAND
Thai Shinkong Industry Corporation Limited 49,1 EUR/t
(101) In order to avoid granting a bonus for non-cooperation, it was
considered appropriate to establish the duty rate for the non-cooperating companies as the highest rate established for anycooperating exporting producers, i.e. 41,3 EUR/t for Indianproducers, 16,6 EUR/t for Malaysian producers and 49,1 EUR/tfor Thai producers.
(102) The individual company specific countervailing duties specifiedin this Regulation were established on the basis of the findingsof the present investigation. Therefore, they reflect the situation
found during the investigation with respect to these companies.
These duties (as opposed to the countrywide duty applicable to‘all other companies’) are thus exclusively applicable to thespecific legal entities mentioned. Imported products producedby any other company not specifically mentioned in the opera-tive part of this regulation with its name, included entities
related to those specifically mentioned, cannot benefit from these
duties and shall be subject to the duties applicable to ‘all othercompanies’.
(103) Any claim requesting the application of these individualcompany countervailing duty rates (e.g. following a change inthe name of the entity or following the setting up of new produc-tion or sales entities) should be addressed to the Commission (
1)
forthwith with all relevant information, in particular any modifi-
cation in the company's activities linked to production, domestic
and export sales associated with e.g. that name change or thatchange in the production and sales entities. The Commission, ifappropriate, will, after consultation of the Advisory Committee,amend the Regulation accordingly by updating the list of compa-nies benefiting from individual duty rates.
K.COLLECTION OF THE PROVISIONAL DUTY
(104) In view of the amount of the countervailable subsidies found for
the exporting producers and in light of the seriousness of theinjury caused to the Community industry, it is considered neces-
sary that the amounts secured by way of provisional
countervailing duty under Regulation (EC) No 1741/2000 bedefinitively collected to the extent of the amount of definitiveduties imposed. In those cases, where the definitive duties arehigher than the provisional duties, only the amounts secured atthe level of the provisional duties shall be definitively collected.
The amounts secured by way of provisional countervailing duties
on imports of certain polyethylene terephthalate originating inTaiwan shall be released.
L.UNDERTAKINGS
(105) Subsequent to the imposition of provisional countervailing
duties, two exporting producers in India offered a price under-taking in accordance with Article 13(1) of the basic Regulation.2000R2603 — EN — 30.04.2004 — 001.001 — 20
(1) European Commission
Directorate-General Trade
Directorate C
TERV 0/13
Rue de la Loi/Wetstraat 200
B-1049 Brussels.
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(106) The Commission considers that the undertakings offered by Reli-
ance Industries Limited and Pearl Engineering Polymers Limited
can be accepted (1) since they eliminate the injurious effect of
subsidisation. Moreover, the regular and detailed reports whichthe companies undertook to provide to the Commission willallow an effective monitoring. Furthermore, the sales structureof these companies is such that the Commission considers that
the risk of circumvention of the undertakings is minimised.
(107) In order to ensure the effective respect and monitoring of the
undertakings, when the request for release for free circulationpursuant to the undertakings is presented, exemption from the
duty is conditional upon presentation to the customs service of
the Member State concerned of a valid ‘Undertaking Invoice’issued by the exporting producers from whom the undertakingsare accepted and containing the information listed in the Annex.Where no such invoice is presented, or when it does not corre-
spond to the product presented to customs, the appropriate rate
of countervailing duty should be payable in order to ensure theeffective application of the undertakings.
(108) In the event of a breach or withdrawal of the undertakings a
countervailing duty may be imposed, pursuant to Article 13(9)
and (10) of the basic Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
1. A definitive countervailing duty is hereby imposed on imports of
polyethylene terephthalate with a coefficient of viscosity of 78ml/g orhigher, according to DIN (Deutsche Industrienorm) 53728, fallingwithin CN code 3907 60 20 and CN code ex 3907 60 80 (TARICcode 3907 60 80 10).
2. Except as provided for in paragraph 3, the rate of the definitive
countervailing duty applicable to the net, free-at-Community-frontier
price, before duty, for products originating in the following countries,shall be as follows:
CountryDefinitive duty
EUR per tonneTARIC additional code
India 41,3 A999
Malaysia 16,6 A999
Thailand 49,1 A999
3. The above rates shall not apply to the products manufactured by
the companies listed below, which shall be subject to the followingcountervailing duty rates:
Country CompanyDefinitive
duty
(EUR per
tonne)TARIC addi-
tional code
India Reliance Industries Limited 41,3 A181
India Pearl Engineering Polymers
Limited31,3 A182
India Elque Polyesters Limited 22,2 A183
India Futura Polymer Limited 0 A1842000R2603 — EN — 30.04.2004 — 001.001 — 21
(1) See page 88 of this Official Journal.
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Country CompanyDefinitive
duty
(EUR per
tonne)TARIC addi-
tional code
Malaysia MPI Polyester Industries Sdn.
Bhd.0 A185
Malaysia Hualon Corporation (M) Sdn.
Bhd.16,6 A186
Thailand Thai Shingkong Industry
Corporation Limited49,1 A190
Thailand Indo Pet (Thailand) Ltd 23,9 A468
4. In cases where goods have been damaged before entry into free
circulation and, therefore, the price actually paid or payable is appor-tioned for the determination of the customs value pursuant to Article145 of Commission Regulation (EEC) No 2454/93 (
1), the amount of
countervailing duty, calculated on the basis of the amounts set above,
shall be reduced by a percentage which corresponds to the apportioning
of the price actually paid or payable.
5. Notwithstanding paragraph 1, the definitive duty shall not apply
to imports realised for free circulation in accordance with the provi-sions of Article 2.
6. Unless otherwise specified, the provisions in force concerning
customs duties shall apply.
Article 2
1. Imports shall be exempt from the countervailing duties imposed
by Article 1 provided that they are produced and directly exported
(i.e. invoiced and shipped) to a company acting as an importer in theCommunity by the companies mentioned in paragraph 3, declaredunder the appropriate TARIC additional code and provided that theconditions set in paragraph 2 are met.
2. When the request for release for free circulation is presented,
exemption from the duties shall be conditional upon presentation tothe customs service of the Member State concerned of a valid ‘Under-taking Invoice’ issued by the exporting companies mentioned inparagraph 3, containing the essential elements listed in the Annex tothis Regulation. Exemption from the duty shall further be conditional
on the goods declared and presented to customs corresponding
precisely to the description on the ‘Undertaking Invoice’.
3. Imports accompanied by an ‘Undertaking Invoice’ shall be
declared under the following TARIC additional codes:
Company CountryTARIC additional
code
Reliance Industries Limited India A181
Pearl Engineering Polymers Limited India A182
Article 3
The amounts secured by way of provisional countervailing duties
pursuant to Regulation (EC) No 1741/2000 on imports of certain poly-2000R2603 — EN — 30.04.2004 — 001.001 — 22
(1) OJ L 253, 11.10.1993, p.1. Regulation as last amended by Regulation (EC)
No 502/1999 (OJ L 65, 12.3.1999, p. 1).▼M1
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ethylene terephthalate originating in India, Malaysia and Thailand shall
be collected at the rate of the duty definitively imposed. Amountssecured in excess of the definitive rate of countervailing duties shall
be released.
Article 4
The anti-subsidy proceeding concerning imports of certain polyethylene
terephthalate originating in Indonesia, the Republic of Korea andTaiwan is hereby terminated.
Article 5
The amounts secured by way of provisional countervailing duties
pursuant to Regulation (EC) No 1741/2000 on imports of certain poly-ethylene terephthalate originating in Taiwan shall be released.
Article 6
This Regulation shall enter into force on the day following that of its
publication in the Official Journal of the European Communities .
This Regulation shall be binding in its entirety and directly applicable
in all Member States.2000R2603 — EN — 30.04.2004 — 001.001 — 23
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ANNEX
Elements to be indicated in the Undertaking Invoice referred to in Article 2(2):
1. The Undertaking Invoice number.
2. The TARIC additional code under which the goods on the invoice may be
customs-cleared at Community borders (as specified in the Regulation).
3. The exact description of the goods, including:
— the product reporting code number (PRC) (as established in the under-
taking offered by the producing exporter in question),
— CN code,— quantity (to be given in units).
4. The description of the terms of the sale, including:
— price per unit,
— the applicable payment terms,
— the applicable delivery terms,— total discounts and rebates.
5. Name of the company acting as an importer to which the invoice is issued
directly by the company.
6. The name of the official of the company that has issued the undertaking
invoice and the following signed declaration:
‘I, the undersigned, certify that the sale for direct export to the European
Community of the goods covered by this invoice is being made within the
scope and under the terms of the undertaking offered by … [company], and
accepted by the European Commission through Decision 2000/745/EC. Ideclare that the information provided in this invoice is complete and correct.’2000R2603 — EN — 30.04.2004 — 001.001 — 24