2000R2604 — EN — 21.03.2002 — 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 2604/2000
of 27 November 2000
imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed
on imports of certain polyethylene terephthalate originating in India, Indonesia, Malaysia, the
Republic of Korea, Taiwan and Thailand
(OJ L 301, 30.11.2000, p. 21)
Amended by:
Official Journal
Nopage date
►M1Council Regulation (EC) No 496/2002 of 18 March 2002 L 78 4 21.3.2002
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COUNCIL REGULATION (EC)No 2604/2000
of 27 November 2000
imposing a definitive anti-dumping duty and collecting definitively
the provisional duty imposed on imports of certain polyethyleneterephthalate originating in India, Indonesia, Malaysia, the
Republic of Korea, Taiwan and Thailand
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 384/96 of 22 December
1995 on protection against dumped imports from countries notmembers of the European Community(
1), and in particular Articles 9
and 10(2) thereof,
Having regard to the proposal submitted by the Commission after
consulting the Advisory Committee,
Whereas:
A.PROVISIONAL MEASURES
(1)The Commission, by Regulation (EC) No 1742/2000(2), (‘provi-
sional Regulation’), imposed provisional anti-dumping duties onimports of certain polyethylene terephthalate originating in India,Indonesia, Malaysia, the Republic of Korea, Taiwan and Thai-land.
(2)In the parallel anti-subsidy proceeding, the Commission alsoimposed, by Regulation (EC) No 1741/2000(
3) a provisional
countervailing duty on imports of certain polyethylene terephtha-late originating in India, Malaysia, Taiwan and Thailand.
(3)It is recalled that the investigation of dumping 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 anti-dumping measures, several interested parties submittedcomments in writing. In accordance with the provisions ofArticle 20(1) of Regulation (EC) No 384/96 (the ‘basic Regula-
tion’), all interested parties who requested a hearing were
granted an opportunity to be heard by the Commission.
(5)The Commission continued to seek and verify all informationdeemed necessary for the definitive findings.
(6)An additional verification visit was carried out at the premises of
the following company related to a Korean exporting producer
which had replied tothe questio nnaire:
— SK Global Belgium NV (Antwerp).
(7)All parties were informed of the essential facts and considera-
tions on the basis of which it was intended to recommend theimposition of definitive anti-dumping duties and the definitive
collection of amounts secured by way of provisional duties.
They were also granted a period within which they could makerepresentations subsequent to this disclosure.2000R2604 — EN — 21.03.2002 — 001.001 — 2
(1) OJ L 56, 6.3.1996, p. 1. Regulation as last amended by Regulation (EC) No
2238/2000 (OJ L 257, 11.10.2000, p. 2).
(2) OJ L 199, 5.8.2000, p. 48.
(3) OJ L 199, 5.8.2000, p. 6.
▼B
(8)The oral and written arguments submitted by the parties were
considered, and, where deemed appropriate, taken into account
for the definitive findings.
(9)Having reviewed the provisional findings on the basis of theinformation gathered since then, it is concluded that the main
findings as set out in the provisional Regulation should be
hereby confirmed.
C.PRODUCT CONCERNED AND LIKE PRODUCT
1.Product concerned
(10)The provisional Regulation defined the product concerned as
polyethylene terephthalate (‘PET’) with a coefficient of viscosity
of 78ml/g or higher, according to DIN (Deutsche Industrienorm)
53728, falling within CN code 3907 60 20 and CN codeex 3907 6080 (TARIC code 3907 6080 10). Since no newobservations were received concerning this definition, the provi-sional findings as regards the product concerned are herebyconfirmed.
2.Like product
(11)In recital 12 of the provisional Regulation, the Commission
found that PET produced by the Community industry and soldon the Community market as well as PET produced in the coun-tries concerned and exported to the Community were like
products, since there were no differences in the basic physical
and technical characteristics and uses of the existing differenttypes of PET. Since no new evidence was submitted on this,the provisional findings as regards the like product areconfirmed.
D.DUMPING
1.Normal value
(12)The Indonesian exporting producer, for whom Article 18(1) of
the basic Regulation was applied, because it was found that ithad supplied false and misleading information, contested theCommission's findings. It considered that the use of Article 18was not warranted and that the rejection of its selling, general
and administrative (‘SG&A’) expenses was an unduly harsh
measure.
(13)The Commission re-examined all information submitted by the
company in its response to the questionnaire and during the on-
the-spot verification. It was confirmed that the activities of thecompany's organisational unit, which allegedly only dealt withfinancial activities and which supposedly had no relation to theproduct concerned, were much broader than reported. In fact, allnormal activities of a head office were performed by this unit. It
was also confirmed that the activities of and the expenses
incurred by that unit could not be considered to be entirely unre-lated to the production and sales of the product concerned. Italso remained clear that the company provided false andmisleading information in respect of the activities performed by
the head office.
(14)It was therefore fully justified and in line with Article 18(1) of
the basic Regulation to disregard the SG&A expenses asreported by the company.
Normal value based on domestic sales
(15)Two Taiwanese companies requested that the determination of
the sales made in the ordinary course of trade should be madeon a quarterly basis and not on a yearly basis. The reasonadvanced tosuppo rt this claim was that during the IP there2000R2604 — EN — 21.03.2002 — 001.001 — 3
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were significant variations in costs and prices of the product
concerned, mainly due to changes in the price of raw materials.
(16)Fluctuations in costs and prices during the IP are almost inevi-
table in any anti-dumping investigation. To take account of
these for the purpose of establishing which sales were made inthe ordinary course of trade the Commission has consistentlyapplied the methodology of comparing individual domesticprices with the weighted average cost of production for the IP.It is considered that the particular situation of the two companies
that made the request does not justify the deviation from the
methodology used for all companies concerned by the presentproceeding. It would furthermore be contrary to the consistentpractice of the Commission to use different time frames for the‘ordinary course of trade test’ (quarterly) and for the other steps
of the dumping calculation (yearly).
(17)It should finally be noted that the relevant information (e.g.
quarterly cost of production figures) was submitted for the firsttime following the disclosure of the provisional findings. Thisdespite the fact that it relates tofacts that were well kno wn tothe companies before the on-the-spot verification or their reply
to the questionnaire. Therefore, the Commission would not have
been, at this late stage of the investigation in a position to verifythe substantial amount of information necessary to modify themethodology for establishing the profitability of domestic sales.
(18)One Korean company disputed the Commission's methodologyfor allocating the amount of SG&A as set out in recital 50 ofthe provisional Regulation.
(19)The exporting producer, after disclosure of the provisional find-ings presented new figures, but despite a request by theCommission, did not provide any evidence or explanation ofthe allocation methodology used. Consequently the claim of thecompany was rejected.
Constructed normal value
(20)One Indonesian exporting producer contested the profit margin
used in order to construct normal value for one type of PET ithad exported to the Community.
(21)The Commission's approach of using the actual profit margin onsales of other types of PET made in the ordinary course of trade
by this exporting producer on its domestic market is fully in line
with Article 2(6) of the basic Regulation (see recital 21 of theprovisional Regulation). Therefore the provisional findings areconfirmed.
(22)One of the Malaysian exporting producers challenged the turn-over based methodology applied by the Commission for the
reallocation of certain SG&A expenses used for the purpose of
constructing normal value in the provisional Regulation.
(23)The verification revealed that the allocation key applied by thecompany in its questionnaire response for certain expenses wasinaccurate and inappropriate and had not been used historically.Consequently, and in the absence of a more appropriate alloca-tion key, the relevant SG&A expenses were reallocated on the
basis of turnover pursuant to Article 2(5) of the basic Regula-
tion. The approach adopted on this matter in the provisionalRegulation is thus confirmed.
(24)Two Indonesian exporting producers argued that normal valuesfor companies with no sales in the ordinary course of trade onthe domestic market should be based, in accordance with Article
2(1) of the basic Regulation, on domestic sales prices of another
company rather than on a constructed normal value.
(25)In recital 19 of the provisional Regulation, it was alreadyexplained why domestic sales prices of another company couldnot be used. Neither of the two exporting producers concernedprovided any evidence invalidating the Commission's reasoning2000R2604 — EN — 21.03.2002 — 001.001 — 4
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to use constructed normal value. The Commission nevertheless
re-examined all information submitted and the methodologyused for provisional measures is consequently confirmed.
(26)One Korean company argued that the Commission should nothave used its own SG&A expenses when constructing normalvalue, as the domestic sales to which these expenses relatedwere not made in the ordinary course of trade. The company
argued that this was in contradiction with Article 2(6) of the
basic Regulation.
(27)It is the Commission's consistent practice, as pointed out also inrecital 21 of the provisional Regulation, to consider the actualdomestic SG&A expenses reliable if the total domestic sales
volume of the company concerned is representative when
compared to the volume of export sales to the Community. Infact, the determining factor to consider the SG&A expenses asbeing usable, is not whether those sales were made at a profit,but whether a sufficiently representative amount of sales weremade on an arm's length basis. Therefore the provisional find-
ings are confirmed.
(28)One Taiwanese company requested that the cost of production
for the month of September 1999 should not be taken intoconsideration due to the earthquake which occurred in Taiwan.
(29)However, irrespective of the fact whether or not an adjustmentas such can be granted for earthquakes or similar cases of forcemajeure, the company could not demonstrate whether and towhat extent the earthquake affected the costs. Moreover, theCommission, on its own initiative analysed the alleged impact
on the cost of production and it was found that the quantity
produced in September 1999 exceeded the quantity produced inseveral other months of the IP while the increase in costs wasnot higher than in other months of the IP. Consequently neitherthe quantity produced in the month of September nor the costscould be qualified as exceptional. The company's claim had
consequently to be rejected.
2.Export price
(30)One Indonesian exporting producer claimed that the Commission
deducted an excessive amount for SG&A expenses and profit forthe function performed by the related importer in order toconstruct its export prices according to Article 2(9) of the basicRegulation.
(31)As regards the percentage of SG&A expenses deducted, theCommission had to rely on the only information made available,i.e. the audited accounts of the related trading company. In thisrespect it should be noted that no product specific informationon the SG&A expenses was provided despite a specific request
to do so in the questionnaire. Consequently, the amount of
SG&A expenses deducted was determined on the basis of turn-over.
(32)As regards the profit margin deducted, recital 23 of the provi-
sional Regulation sets out that a profit margin of 5 % was
considered to be reasonable for the function performed by atrader. In the absence of any other verifiable information, thisapproach is hereby confirmed.
3.Comparison
(33)One Indonesian exporting producer complained that the
Commission had ignored its allowances claimed on normalvalue.
(34)For this company, the Commission constructed the normal valuein accordance with Article 2(3) of the basic Regulation. Theamounts for SG&A expenses and for profits were, in accordancewith Article 2(6)(a), determined on the basis of the weightedaverage of the actual amounts determined for other exporting2000R2604 — EN — 21.03.2002 — 001.001 — 5
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producers subject to investigation in respect of production and
sales of the like product in Indonesia. Article 2(10) of the basicRegulation states that due allowance in the form of adjustments
shall be made for differences in factors which affect prices and
price comparability. Since the domestic sales prices of thecompany concerned were not used, the adjustments affectingprice comparability were, in this case, those relating to othercompanies' SG&A expenses used for constructing the normal
value. The approach taken for the provisional determination is
therefore confirmed.
Physical characteristics
(35)One of the Malaysian exporting producers claimed that the type
of PET sold on the domestic market had a higher market valuethan the type of PET exported to the Community and that there-fore, the normal value should be adjusted accordingly.
(36)However, the exporting producer did not claim any adjustmentfor physical differences in either the questionnaire response orduring the on-the-spot verification. Neither did it quantify themarket value of the alleged difference. Furthermore, during the
investigation no evidence was found or provided to support
such a claim. In view of these facts this claim had to be rejected.
Import charges and indirect taxes
(37)One Indian exporting producer argued that a duty drawback
claim should have been granted, since import duties have beenrefunded upon exportation, while no such refund was made fordomestic sales, thus affecting price comparability. The exporterfurther claimed that the adjustment should have been grantedregardless of whether duties were paid on importation of raw
materials and regardless of whether those raw materials were
physically incorporated in the like product sold on the domesticmarket.
(38)According to Article 2(10)(b) of the basic Regulation an adjust-ment on the normal value can only be granted for import dutiesborne by the like product and by raw materials physically incor-porated therein, when intended for consumption in the exportingcountry and refunded (or not collected) in respect of the product
exported to the Community. It should be noted that in this case,
the exporter based its claim for duty drawback merely on theamount of import duties refunded upon exportation of PET.According to the Duty Entitlement Passbook Scheme (‘DEPBscheme’) applicable to the company, a duty refund upon expor-
tation was granted regardless of whether raw materials for the
production of the like product were imported or not. Moreover,the actual amount of the relevant import charges paid on rawmaterials for the PET sold on the domestic market during theIP and refunded or not collected when exporting the productconcerned to the Community was not provided by the company
in its questionnaire response or during the on-the-spot verifica-
tion visit. It follows that the company could not demonstratethat the import duties refunded were included in the domesticprice. Consequently, it could not be established that pricecomparability was affected and the claim had to be rejected.
(39)The same Indian exporting producer claimed finally that theprovisional findings of the anti-dumping investigation were incontradiction with the provisional findings in the parallel anti-
subsidy proceeding. It was argued that it would be incorrect to
reject the company's claim for a duty drawback adjustment inthe context of the anti-dumping investigation, when at the sametime the DEPB scheme from which the company benefits hadbeen considered as an export subsidy in the context of the anti-
subsidy proceeding.
(40)This argument cannot be accepted. Indeed, in the context of the
parallel anti-subsidy investigation it was found that the scheme2000R2604 — EN — 21.03.2002 — 001.001 — 6
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which gave right to a customs duty refund or a duty-free import,
as the case may be, is a countervailable export subsidy, and nota bona fide duty drawback scheme for the purpose of Council
Regulation (EC) No 2026/97 of 6 October 1997 on protection
against subsidised imports from countries not members of theEuropean Community(
1) (the ‘basic Anti-subsidy Regulation’).
Pursuant to Article 14(1) of the basic Regulation, this counter-vailing duty will be deducted from any anti-dumping duty.
Thus, to make the requested adjustment here, on top of this
deduction, would amount to a double adjustment which wouldnegate the results of the anti-subsidy investigation.
(41)Considering the above, the Commission's provisional findingsare hereby confirmed, i.e. the company's claim for an adjustmentfor differences in import charges and indirect taxes was notwarranted and had consequently to be rejected.
(42)One Korean company contested the method of calculation of theduty drawback adjustment made by the Commission, which,according to the company, did not reflect the actual amount ofduty drawback received during the IP.
(43)During the investigation the company did not provide anyevidence concerning the link between the amount of duty draw-back actually received and the raw materials physically
incorporated in the product. In the absence of any new evidence
which can support the claim of the exporting producer, theapproach followed in recital 58 of the provisional Regulation isconfirmed.
(44)Another Korean company objected to the Commission's decisiontoreject the duty drawback adjustments in its entirety (see recital
58 of the provisional Regulation).
(45)In the light of the explanations provided by the company after
the publication of the provisional Regulation, and consideringthe information collected during the investigation, the Commis-sion could re-calculate the amount of the allowance for dutydrawback in order to reflect the duty paid for raw materialsimported during the IP. The allowance was consequently granted
but only to the extent that it could be verified.
(46)One Indian exporting producer contested the fact that the
Commission did not take sales taxes into account when estab-lishing domestic sales prices. It was argued that although thecompany was exempted from sales taxes during the IP, theinvoice price charged to the customers was an all inclusive price
and that sales taxes were actually collected from customers and
subsequently paid tothe go vernment.
(47)The information presented by the producer after the impositionof the provisional measures contradicts the information collectedand verified on-the-spot on which the provisional findings werebased. Furthermore, no evidence was submitted to support theclaim that the sales tax had in fact been collected from custo-
mers and was actually paid tothe go vernment. The
investigation clearly revealed that the company concerned bene-fited from a sales tax exemption scheme which was applicable topurchases and sales of the product concerned during the IP. Thesales prices on the commercial invoices were found to be ‘sales-
tax-free’ and relevant internal pricing policy documents indi-
cated that the sales tax was ‘nil at present’. The legal basis ofthe sales tax exemption scheme was furthermore examined indetail and no indication could be found to support the company'snew claims. The provisional findings are consequentlyconfirmed.2000R2604 — EN — 21.03.2002 — 001.001 — 7
(1) OJ L 288, 21.10.1997, p. 1.
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Level of trade
(48)One Malaysian exporting producer reiterated its claim for an
adjustment for differences in the level of trade between sales of
the product concerned on the domestic and export markets.
(49)In the absence of any evidence showing consistent and distinct
differences in the functions and prices of the seller for the alleg-edly different levels of trade on the domestic market of theexporting country the provisional findings, as described in recital69 of the provisional Regulation, are confirmed.
Credit costs
(50)One Malaysian exporting producer claimed that no account had
been taken of the credit costs on domestic sales transactionsduring the IP.
(51)In the absence of a substantiated claim for an adjustment fordifferences in credit costs within the time limits the claim couldnot be verified and should thus be rejected.
(52)The other Malaysian exporting producer claimed that the interest
rate applied for the calculation of credit costs on the export side
in the provisional Regulation was incorrect.
(53)The provisional findings pertaining to this issue have beenreviewed and it has been concluded that the interest rate appliedby the company in its questionnaire response was indeed moreappropriate and the calculations have been revised accordingly.
Discounts and rebates
(54)One Indian exporting producer reiterated its claim that the
normal value ought to be adjusted by the amount of a ‘loyaltydiscount’ granted to certain customers on the domestic market.
(55)It was found that the discount in question was payable after theIP if and when specific conditions had been fulfilled. As
mentioned in recital 35 of the provisional Regulation, there was
no evidence that the discount scheme had been consistently andhistorically used. In fact no disbursements had yet been madeunder the scheme. Therefore, pursuant with Article 2(10)(c) ofthe basic Regulation, that stipulates that an adjustment can onlybe granted when the claim is based on consistent practice in
prior periods, including compliance with the conditions required
to qualify for the discount, the claim had to be rejected.
Handling cost
(56)A clerical error was noted in the calculation of the adjustment to
be granted for handling charges on the export side for one Indian
exporting producer. This has been corrected.
Others
(57)One Indian exporting producer challenged the grounds on which
its claim for an allowance for salesmen's salaries on both thedomestic and export markets was rejected and provided new
information in support of its claim.
(58)However, the information or evidence in question, although
specifically requested in the questionnaire, was not made avail-able until well after the on-the-spot verification had takenplace. In the absence of a substantiated claim for an adjustmentfor salesmen's salaries within the time limits the claim could not
be verified and should thus be rejected.
4.Dumping margin for companies investigated
(59)One Korean exporting producer claimed that the Commission
departed from the rule contained in Article 2(11) of the basicRegulation by comparing the weighted average normal valuewith the individual export prices in order to calculate the2000R2604 — EN — 21.03.2002 — 001.001 — 8
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dumping margin. This comparison was considered as discrimina-
tory in contrast with the methodology used for the other Koreanexporting producers. The company, which after the provisional
disclosure provided modified figures for the weighted average
prices per customer and regions, alleged that the variations ofthe prices could not be considered substantial. Furthermore, itclaimed that such variations resulted from differences in theconditions of competition in the Community market and not
from the intention of practising targeted dumping.
(60)For the provisional determination the Commission considered
that the method of calculation used for the other exportingproducers (see recital 60 of the provisional Regulation) wouldnot, in the particular case of this company, have reflected thefull degree of dumping being practised. Moreover, a pattern ofexport prices was found which differed significantly between
different purchasers and regions. Consequently the normal value
established on a weighted average basis was compared to theprices of all individual export transactions to the Community.
(61)The methodology used by the Commission to compare theweighted average normal value with individual export pricesfully complies with the rule set out in Article 2(11) of the basicRegulation. The second subparagraph of Article 2(11) clearly
states that a normal value established on a weighted average
basis may be compared to prices of all individual export transac-tions to the Community if there is a pattern of export priceswhich differs significantly among different purchasers, regionsor time periods, and if the comparison of the normal value and
export prices on weighted average basis does not reflect the full
degree of dumping. In the present case both of the above condi-tions are met. Even after the corrections on export pricesprovided by the exporting producer, it was still evident that thepattern of prices differed significantly among purchasers andregions and the full degree of dumping was not reflected by
comparing normal value and export price on a weighted average
basis.
(62)It is therefore considered that there was no discriminationbetween Korean exporting producers but a mere application ofthe correct rule to each specific situation. The provisional find-ings are thus confirmed.
(63)One Taiwanese company requested that the comparison ofconstructed normal value and export prices be made on a
monthly basis alleging that during the IP there were significant
variations in costs and prices due to the changes in prices forraw material.
(64)Fluctuations in costs and prices during the IP are almost inevi-table in an anti-dumping investigation. For the purpose ofcomparing normal value with the export price, the Commissionhas established a weighted average of both factors, thus taking
into account the effect of the fluctuations, particularly in the
case of this exporting producer where there is a clear parallelbetween the evolution of costs and prices. It is considered thatthe particular situation of the company that made the requestdoes not justify the deviation from the methodology used for all
companies concerned by the present proceeding. It would
furthermore be contrary to the consistent practice of theCommission to use different time frames i.e. monthly for thecomparison of normal value and export price and yearly for theother steps of the dumping calculation.
(65)Furthermore it should be noted that the company did not makesuch claim in its reply to the questionnaire nor during the on-
the-spot verification, although it is based upon facts that were
well known to the company at that time. All relevant informa-tion should have been submitted within the time limitsoriginally set. The information submitted several months afterthe expiry of these time limits could not reasonably be verifiedand the company's claim had consequently to be rejected.2000R2604 — EN — 21.03.2002 — 001.001 — 9
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(66)One Taiwanese company for which it was established that its
export sales to the Community were just outside the IP requested
to be attributed the average dumping margin of the other coop-erating companies instead of the residual dumping margin forTaiwan, which was set at the level of the highest dumpingmargin found for the cooperating companies.
(67)The claim was accepted. Therefore, the dumping margin for thecompany Nan Ya Plastics Corp. is set at the level of the average
dumping margin of the cooperating Taiwanese companies, i.e.
9,6 %.
(68)Two Taiwanese cooperating companies pointed out clericalerrors in the calculation of the provisional dumping margin.These errors have been corrected and the respective dumpingmargins have been modified accordingly.
(69)Considering the above and in the absence of other comments bythe interested parties it was decided to apply the methods set outin the provisional Regulation for cooperating and non coop-
erating companies.
(70)The comparison showed the existence of a de minimis dumping
margin for the exports of the product concerned to the Commu-nity made by one Korean company during the IP.
(71)The definitive dumping margins, expressed as a percentage ofthe cif import price at the Community border, are:
India Reliance Industries Limited 51,5 %
Pearl Engineering Polymers Limited 30,0 %
Others 51,5 %
Indonesia P.T. Bakrie Kasei Corporation 63,5 %
P.T. Indorama Synthetics Tbk 15,2 %
P.T. Polypet Karyapersada 73,7 %
Others 73,7 %
The Republic of Korea Honam Petrochemical Corporation 19,8 %
Tongkook Corporation 55,8 %
Daehan Synthetic Fiber Corporation 5,1 %
Sk Chemicals Corporation 1,4 % de minimis
Others 55,8 %
Malaysia Hualon Corporation (M) Sdn. Bhd. 7,8 %
MPI Polyester Industries Sdm. Bhd. 34,2 %
Others 34,2 %
Taiwan Far Eastern Textile Ltd 7,8 %
Shingkong Synthetic Fibers Corpora-
tion7,8 %
Tuntex Distinct Corp. 12,4 %
Nan Ya Plastics Corporation 9,6 %
Others 12,4 %
Thailand Thai Shingkong Industry Corporation
Limited32,5 %
Others 32,5 %2000R2604 — EN — 21.03.2002 — 001.001 — 10
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E.COMMUNITY INDUSTRY
(72)In the absence of any new information submitted with respect to
the definition of the Community industry, the findings as set outin recitals 87 to 92 of the provisional Regulation are confirmed.
F.INJURY
1.Preliminary remarks
(73)Certain interested parties questioned the use of data submitted by
the Community industry only for the period 1996 onwards whilstthe developments in the market prior to this period were basedon independent market research information.
(74)The Commission had considered that the data submitted by theCommunity industry for the year 1995 could not be used due tothe split of Kodak and Eastman in 1995 and to the restructuring
of the activities of Shell. Neither Shell nor Eastman was able to
provide complete figures for this year.
(75)However, the Commission had considered it essential to give an
overview of the shortage crisis that occurred in the Community
market in 1995 in view of the impact of this event on both theprices and profitability of the Community industry. As such theuse of independent market research information was consideredappropriate in establishing the necessary background data forthe evaluation of the situation of the Community industry during
the analysis period, as explained in recital 97 of the provisional
Regulation.
2.Consumption
(76)In the absence of any new information submitted to the contrary,
the findings concerning the consumption of the product
concerned in the Community as detailed in recitals 100 and 101of the provisional Regulation are confirmed.
3.Imports from the countries concerned
(77)In the absence of any new information the provisional findings
as regards the volume and prices of imports from the countriesconcerned, are confirmed.
Cumulative assessment of the effects of the imports concerned
(78)An Indonesian exporter claimed that imports originating in Indo-
nesia should not be assessed cumulatively with the other importsconcerned, especially in view of the differences in trends involumes between imports originating in this country and in theother countries subject to the investigation. This argument had
already been examined at recital 106 of the provisional Regula-
tion and as no new information was submitted the Commissioncannot accept this claim.
(79)The conclusion that imports originating in Indonesia should beassessed cumulatively with imports from the other countriesconcerned is therefore confirmed.
4.Situation of the Community industry
(80)In accordance with Article 3(5) of the basic Regulation the
examination of the impact of the dumped imports on theCommunity industry included an evaluation of all relevantfactors and indices having a bearing on the state of the Commu-nity industry. The examination included all factors specifically
listed in Article 3(5) of the basic Regulation. However, certain
factors are not dealt with in detail as they were found not to berelevant for the assessment of the situation of the Communityindustry in the course of the investigation (wages and stockssee below). As concerns the impact on the Community industryof the magnitude of the actual margin of dumping, given the2000R2604 — EN — 21.03.2002 — 001.001 — 11
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volume and the prices of the imports from the countries
concerned, this impact cannot be considered to be negligible.
Factors examined in the provisional Regulation
— Investments:
(81)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.
(82)Some interested parties argued that the extent of the investmentsmade in 1998 by the Community industry indicated that it was in
good financial health. Others remarked that if the level of invest-
ments was low during the IP, this was a consequence of theprevious years in which the Community industry had registeredlosses and that this could not be attributed to the effect of thedumped imports during the IP.
(83)In this respect, the investigation has clearly shown that invest-ment expenditure made in 1997, 1998 and in the IP was mostly
a consequence of decisions taken in 1995 and 1996 when
prospects in the PET sector were good (although losses wereincurred in 1996 this situation was considered to be temporary).In such an industry, it is more relevant to examine plans toinvest than the timing of actual expenditure. As stated in recital
124 of the provisional Regulation, it is confirmed that, as a
consequence of the further deterioration of its financial situationdue to injurious dumping during the IP, the Community industryhas not planned any significant expansion in capacity to meetincreases in future demand.
— Wages and stocks:
(84)Wages and stocks were also examined, however, wages were not
considered to be a relevant factor given that their share in the
overall 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:
(85)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
(86)The situation of the Community industry regarding the following
indicators was further examined.
— Ability toraise capital:
(87)As already mentioned in the provisional Regulation, the level of
losses experienced during the IP was such that no new invest-ment plan could be agreed during the IP. This clearly did notimprove the Community industry's ability to raise capital during
this period despite the anticipated increase in demand.
— Productivity:
(88)The productivity in terms of tonnes produced per employee
increased by 67 % from 1996 to the IP and by 21 % from 1998to the IP. Such a considerable increase in productivity shows thatthe Community industry made all possible efforts to remaincompetitive.2000R2604 — EN — 21.03.2002 — 001.001 — 12
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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 as divided by
total share capital and reserves together with debentures and other long-term loans.
(89)The above indicator reflects the overall situation of the Commu-
nity industry (including mostly PET business lines). The
verification showed that a large part of the negative trend in theIP could be attributed to the PET sector. This indicator is in linewith the deterioration of the profitability of the Communityindustry.
— Cash flow:
(EUR)
1996 Net cash in(out)flow from operating activities – 79002884
1997 Net cash in(out)flow from operating activities 849019881998 Net cash in(out)flow from operating activities 132915718
IP Net cash in(out)flow from operating activities 51115757
(90)
The above indicator reflects the overall situation of the Commu-
nity industry (including mostly PET business lines). It represents
the gross operational result of these companies, i.e. sales less
cost of sales and before financial charges, depreciation, provi-sions and taxes. The verification showed that a large part of thedeterioration in the IP is attributable to the PET sector.
5.Further arguments raised
General arguments raised as to the Commission's conclusions
(91)Some interested parties questioned the Commission's conclusions
on injury since some of the injury indicators showed either
increasing 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 marketshare. They considered these indicators showed that the Commu-nity industry was in good health and that although prices were
very low, they were at normal levels taking into account
prevailing market conditions.
(92)This argument could not be accepted. As established in theprovisional Regulation, the increase in sales and the recovery of
market share in the IP, after a loss of 5 percentage points
between 1997 and 1998, occurred when the Community industryconsiderably decreased its prices to match those of dumpedimports. As explained in the provisional Regulation, it wasestablished that imports were made at dumped prices. In this
respect, the low level of price undercutting result from the fact
that the Community industry's prices were depressed during theIP. This price depression was the result of the dumped imports,which were very substantial in terms of volume and marketshare and which forced the Community industry to react bydecreasing its prices.2000R2604 — EN — 21.03.2002 — 001.001 — 13
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Developments occurring after the IP
(93)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.
(94)It should be recalled that Article 6(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 jurispru-dence of the Court, developments after the IP can only be taken
in consideration if they make the imposition of anti-dumping
measures manifestly unsuitable.
(95)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.
(96)This dramatic change in prices mostly originates in the increase
in crude oil prices that has occurred since the middle of 1999
and noticeably affected all polymer prices a few months later.
It should also be noted that there has been a steady increase insales and market share of the Community industry at the expenseof dumped imports. However, the decrease in the volume ofdumped imports may be a consequence of the opening of ananti-dumping investigation. In the present case, the development
in the dollar/euro exchange rate also rendered the imports
concerned less attractive.
(97)It is to be noted that exchange rates, as well as the crude oil
price, are extremely volatile and changes may be temporary.
Furthermore, should the on-going anti-dumping investigation tobe terminated without imposing measures, it is likely thatdumped imports would rapidly regain market share.
(98)On the basis of the above, it was concluded that developmentsoccurring after the IP do not show that the injury caused bydumped imports has disappeared. As a result, the imposition ofanti-dumping measures is not manifestly unsuitable.
6.Conclusion on injury
(99)Given that noo ther arguments were received regarding the
injury suffered by the Community industry, the conclusion thatthe Community industry has suffered material injury within the
meaning of Article 3 of the basic Regulation, as set out in reci-
tals 125 to 128 of the provisional Regulation, is herebyconfirmed.
G.CAUSATION
(100)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 thisindustry and the level of prices on the Community market weredue to a combination of other factors. In this context, they reit-2000R2604 — EN — 21.03.2002 — 001.001 — 14
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erated the points already raised at the provisional stage
(including the price of raw materials, the situation of over capa-city, the competition between PET producers).
(101)Given that noo ther arguments were received regarding the cause
of the injury suffered by the Community industry, the conclusion
that imports of PET from the countries concerned had causedinjury to the Community industry as stated in recital 148 of theprovisional Regulation is hereby confirmed.
H.COMMUNITY INTEREST
1.Likely effect of the imposition of measures on downstream
industries
Further investigation
(102)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 on
the downstream industries. Therefore, the Commission sent out90 new, simplified questionnaires to users of PET, some ofwhich 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)PepsicoFrance (France)Europe Embouteillage Snc (France)
— eight producers of mineral and spring water:
Aguas Minerales Pasqual S.L. (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).
(103)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 figuresestablished 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.2000R2604 — EN — 21.03.2002 — 001.001 — 15
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(104)After the imposition of provisional measures, several submis-
sions by users or their representative associations were received
by the Commission. These mostly comprised comments on thepast developments in the PET market and discussions on thepossible impact of measures on the user sectors. These submis-sions originated 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 grouprepresent some 9 % of the Community consumption of PETof which 3 % is for the French market only).
(105)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 intoaccount, and in total all submissions represent at least half ofthe market.
Description of the user sectors
(106)After having analysed all the information provided, it was found
that the user sector, previously considered as 3 groups (preformmakers, water producers and integrated soft drink producers), ismore accurately described as two groups:
— The converters, including manufacturers of preforms and
bottles as well as producers of sheets. These users are
performing 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 theirproduction to bottlers of non-alcoholic drinks. The sheetproducers, that represent only a small proportion of the
converters sector, sell to many different types of industries
that 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 thesame manufacturer bottles both water and soft drinks. It ismore relevant to distinguish between the different drinksthey manufacture since, in relative terms, the share of PET
in their cost of production depends on the intrinsic cost of
those drinks (sodas or fruit juices require more expensiveinputs 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.
(107)It is to be noted that there is a very close operational linkbetween the converters (except sheet manufacturers) 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 PETor 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.2000R2604 — EN — 21.03.2002 — 001.001 — 16
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Foreseeable impact of measures on the users
(108)After taking into account the new figures provided, the situation
of the users, which supplied fully quantified information, was as
follows:
Consumption
of PET as %
of Community
consumptionPET as a % 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-alco-
holic drinksMineral and spring
water18 24 6 766
Soft drinks 1 9 298
TOTAL 26 8 020
Impact on converters
(109)It was estimated that the imposition of both the anti-dumping
and countervailing measures proposed (of which 15 % is to beattributed to countervailing measures only), taking into accounttheir volumes of PET purchases originating in the countries
concerned during the IP, would result in an increase of 4 % in
the cost of production of converters making preforms and bottles(using PET prices of July 2000, this would be 2 %). In the sameterms, the impact of measures on the sheet producers would bearound 2,3 % (1,2 % with PET prices of July 2000).
(110)Due to their contractual link with their customers, it is likely thatthe converters making preforms and bottles will be able to passmost of this increase in cost onto their clients. This is also thecase for sheet manufacturers. The direct impact of measures onthe return on sales of these companies is therefore estimated tobe limited.
(111)The main risk that was re-iterated by these users relates toapossible relocation of converters' activities to countries outsidethe Community. However, the Commission did not find anynew evidence tosuggest there wo uld be such a risk, especiallytaking into account the estimated impact of the measures
proposed on one hand and the costs and disadvantages linked to
relocation on the other hand. In recital 179 of the provisionalRegulation it was estimated that additional costs relating totransport only would represent an increase of 2,5 % in costs.Furthermore it was also explained that considerations of proxi-mity, flexibility and reliability of supplies were essential to
users.
Impact on bottlers of non-alcoholic drinks
(112)It was estimated that the imposition of both the anti-dumping
and countervailing measures proposed, taking into account their
volumes of PET purchases originating in the countries concernedduring the IP, as well as the fact that most of the increase in thecost of preforms is going to passed on them, would result in anaverage increase of less than 0,9 % in the cost of production of
bottlers of non-alcoholic drinks (using PET prices of July 2000
this would be around 0,4 %).
(113)This increase in costs of production is estimated to have alimited impact on large companies that sell branded drinks sincethose companies are very profitable. Small bottlers of non-branded-drinks, that represent only a small proportion of this2000R2604 — EN — 21.03.2002 — 001.001 — 17
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sector, are operating with lower profit margins; such an increase
in cost is not likely to severely endanger their activities but itmay require some cost restructuring efforts. In this respect it is
to be noted that in the past these companies have had to cope
with large fluctuations in PET prices.
Overall impact on the users
(114)As mentioned above, PET is mostly used directly, or indirectly
via converters, by the producers of non-alcoholic drinks, whereasPET is only a marginal packaging material for the other indus-tries. As the estimated impact on the non alcoholic drinks
sector already includes the impact on the cost of PET trans-
formed by the converters, it can be considered that the increasein costs on users of PET would be limited.
2.The retail price of drinks
(115)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 thesame period the prices of PET have been extremely volatile,
without, however, influencing the retail prices of bottled water
and 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
(116)The measures proposed would, in all likelihood, benefit theCommunity industry, which, by its restructuring efforts and
impressive increase in productivity, has demonstrated its deter-
mination to maintain its presence in the rapidly growingCommunity 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 a
capital-intensive activity, toinsure its lo ng-term viable presence
in the Community.
(117)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
(118)On the basis of the additional information obtained from users, it
is concluded that the impact of the measures on users would be
limited. As converters are able to pass most of the increase incosts on to their clients, the consolidated impact of measures onthe producers of drinks is estimated to be marginal on the overallprofitability of this sector.
(119)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 by
fluctuations in PET prices and that imposition of measures is
clearly in the interest of the Community industry and of theupstream industries.
(120)Given that no other arguments were received regarding Commu-nity interest, the conclusion that there are no compelling reasonsnot to impose measures, as set out in recital 202 is herebyconfirmed.
I.DEFINITIVE COURSE OF ACTION
(121)In view of the conclusions reached regarding dumping, injury,
causation and Community interest, it is considered that definitive2000R2604 — EN — 21.03.2002 — 001.001 — 18
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anti-dumping measures should be taken in order to prevent
further injury being caused tothe Co mmunity by dumpedimports originating in the concerned countries.
1.Injury elimination level
(122)In the absence of any new information, the methodology used
for establishing the injury margin as described in recital 206 ofthe provisional Regulation is hereby confirmed.
2.Form and level of the duties
(123)In the absence of any new information, the methodology used
for establishing the anti-dumping duty rates in conjunction withthe relevant countervailing duty rates established in the parallel
anti-subsidy investigation, as described in recitals 209 to 213 of
the provisional Regulation is hereby confirmed.
(124)In order to avoid that fluctuations in PET prices caused by fluc-
tuations in crude oil prices should result in higher duties being
collected, it is considered appropriate that duties in the form ofa specific amount per tonne should be imposed. These amountsresult from the application of the anti-dumping duty rate to thecif export prices used for the calculation of the injury elimina-tion level during the IP.
(125)The proposed anti-dumping duties are the following:
India
CompanyInjury elimi-
nation
marginDumping
marginCounter-
vailing duty
rate
(resulting
from export
subsidies)Anti-
dumping
duty rateProposed
anti-dumping
duty
Reliance Industries
Limited44,3 % 51,5 % 8,2 % 36,1 % 181,7 EUR/t
Pearl Engineering
Polymers Limited33,6 % 30,0 % 5,8 % 24,2 % 130,8 EUR/t
Elque Polyesters
Limited44,3 % 51,5 % 4,4 % 39,9 % 200,9 EUR/t
Futura Polymer
Limited44,3 % 51,5 % 0 44,3 % 223,0 EUR/t
All other 51,5 % 8,2 % 36,1 % 181,7 EUR/t
(126)Elque Polyesters Limited and Futura Polymer Limited partici-
pated in the parallel anti-subsidy proceeding but noting thepresent anti-dumping investigation since they did not export tothe Community. They are therefore entitled to ask for anewcomer review when they have actually exported to theCommunity, or when they can demonstrate that they have
entered into irrevocable contractual obligations to export signifi-
cant quantities tothe Co mmunity.
Indonesia
CompanyInjury elimination
marginDumping marginProposed anti-dumping
duty
P.T. Bakrie Kasei
Corporation35,1 % 63,5 % 187,7 EUR/t
P.T. Indorama
Synthetics Tbk17,8 % 15,2 % 92,1 EUR/t2000R2604 — EN — 21.03.2002 — 001.001 — 19
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CompanyInjury elimination
marginDumping marginProposed anti-dumping
duty
P.T. Polypet Karya-
persada32,9 % 73,7 % 178,9 EUR/t
All others 73,7 % 187,7 EUR/t
Korea
CompanyInjury elimination
marginDumping marginProposed anti-dumping
duty
Honam Petrochem-
ical Corporation16,9 % 19,8 % 101,4 EUR/t
Tongkong Corpora-
tion26,5 % 55,8 % 148,3 EUR/t
Daehan Synthetic
Fiber Corporation28,5 % 5,1 % 28,2 EUR/t
SK Chemicals
Corporation11 % 1,4 % 0
All others 55,8 % 148,3 EUR/t
Malaysia
CompanyInjury elimi-
nation
marginDumping
marginCounter-
vailing duty
rate
(resulting
from export
subsidies)Anti-
dumping
duty rateProposed
anti-dumping
duty
Hualon Corpora-
tion(M) Sdn. Bhd.52,1 % 7,8 % 0,2 % 7,6 % 36,0 EUR/t
MPI Polyester
Industries Sdn.
Bhd.54,2 % 34,2 % 0 34,2 % 160,1 EUR/t
All others 34,2 % Not applicable 34,2 % 160,1 EUR/t
Taiwan
CompanyInjury elimination
marginDumping marginProposed anti-dumping
duty
Far Eastern Textile
Ltd8,2 % 7,8 % 50,2 EUR/t
Shingkong Synthetic
Fibers Corporation16,6 % 7,8 % 47,0 EUR/t
Tuntex Distinct Corp. 26,3 % 12,4 % 69,5 EUR/t
Nan Ya Plastics
Corporation26,3 % 9,6 % 53,8 EUR/t
All others 12,4 % 69,5 EUR/t2000R2604 — EN — 21.03.2002 — 001.001 — 20
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Tailand
CompanyInjury elimi-
nation
marginDumping
marginCounter-
vailing duty
rateAnti-
dumping
duty rateProposed
anti-dumping
duty
Thai Shingkong
Industry Corpora-
tion Limited22,6 % 32,5 % 8,4 % 14,2 % 132,2 EUR/t
All others 32,5 % 8,4 % 14,2 % 132,2 EUR/t
(127)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 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 that
change 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.
3.Definitive collection of provisional duties
(128)In view of the magnitude of the dumping found for the exporting
producers, and in the light of the seriousness of the injury caused
to the Community industry, it is considered necessary that the
amounts secured by way of provisional anti-dumping duties shallbe collected at the rate of the duty definitively imposed. In thosecases, where the definitive duties are higher than the provisionalduties, only the amounts secured at the level of the provisionalduties shall be definitively collected.
4.Undertakings
(129)Subsequent to the imposition of provisional anti-dumping
measures, exporting producers in India and Indonesia offered
price undertakings in accordance with Article 8(1) of the basicRegulation.
(130)The Commission considers that the undertakings offered by Reli-ance Industries Limited, Pearl Engineering Polymers Limited
and P.T. Polypet Karyapersada can be accepted(
2) since they
eliminate the injurious effect of the dumping. Moreover, theregular and detailed reports which the companies undertook toprovide to the Commission will allow effective monitoring.Furthermore, the sales structure of these companies is such thatthe Commission considers that the risk of circumvention of the
undertakings is minimised.
(131)A further company also made proposals for offering an under-
taking. However, the company provided false and misleadinginformation in respect of certain aspects of the investigationwhich affected the accuracy and reliability of its cooperation
(cf. recital 13). Accordingly, the Commission was not satisfied
that an undertaking from this company could be effectivelymonitored and the offer was therefore rejected.
(132)In order to ensure the effective respect and monitoring of theundertakings, when the request for release for free circulation2000R2604 — EN — 21.03.2002 — 001.001 — 21
(1) European Commission
Directorate-General TradeDirectorate B
TERV 0/13
Rue de la Loi/Wetstraat 200
B-1049 Brussels.
(
2) See page 88 of this Official Journal.
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pursuant to the undertakings is presented, exemption from the
duty is conditional upon presentation to the customs service ofthe Member State concerned a valid ‘Undertaking Invoice’
issued by the exporting producers from whom the undertakings
are 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 rateof anti-dumping duty should be payable in order to ensure the
effective application of the undertakings.
(133)In the event of a breach or withdrawal of the undertakings ananti-dumping duty may be imposed, pursuant to Article 8(9)
and (10) of the basic Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
1. A definitive anti-dumping 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 codes 3907 60 20 and ex 3907 60 80 (TARIC code3907 60 8010).
2. Except as provided for in paragraph 3 below, the rate of the defi-
nitive anti-dumping duty applicable tothe net, free-at-Co mmunity-frontier price, before duty, shall be as follows for products originatingin:
CountryDefinitive duty
(euro/t)TARIC additional code
India 181,7 A999
Indonesia 187,7 A999
Malaysia 160,1 A999Republic of Korea 148,3 A999Taiwan 69,5 A999
Thailand 83,2 A999
3. The above rates shall not apply to the products manufactured by
the companies listed below, which shall be subject to the followinganti-dumping duty rates:
Country CompanyDefinitive
duty
(euro/t)TARIC addi-
tional code
India Pearl Engineering Polymers Limited 130,8 A182
India Reliance Industries Limited 181,7 A181India Elque Polyesters Limited 200,9 A183
India Futura Polymers Limited 161,2 A184Indonesia P.T. Bakrie Kasei Corporation 187,7 A191
Indonesiea P.T. Indorama Synthetics Tbk 92,1 A192Indonesia P.T. Polypet Karyapersada 178,9 A1932000R2604 — EN — 21.03.2002 — 001.001 — 22
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Country CompanyDefinitive
duty
(euro/t)TARIC addi-
tional code
Malaysia Hualon Corporation (M) Sdn. Bhd. 36,0 A186
Malaysia MpI Poyester Industries Sdn. Bhd. 160,1 A185
Republic of Korea Daehan Synthetic Fiber Co., Limited 28,2 A194Republic of Korea Honam Petrochemical Corporation 101,4 A195Republic of Korea SK Chemicals Co., Limited 0 A196Republic of Korea Tongkong Corporation 148,3 A197
Taiwan Far Eastern Textile Limited 50,2 A188
Taiwan Tuntex Distinct Corporation 69,5 A198Taiwan Shingkong Synthetic Fibers Corporation 47,0 A189Taiwan Nan Ya Plastics Corporation 53,8 A187
Thailand Thai Shingkong Industry Corporation
Limited83,2 A190
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 of 2 July 1993laying down provisions for the implementation of Council Regulation(EEC) No 2913/92 establishing the Community Customs Code(
1), the
amount of anti-dumping duty, calculated on the basis of the amounts
set above, shall be reduced by a percentage which corresponds to theapportioning of the price actually paid or payable.
5. Notwithstanding paragraph 1, the definitive duty shall not apply
to imports released 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 anti-dumping 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, declared
under the appropriate TARIC additional code and that the conditions
set out 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 in
paragraph 3, containing the essential elements listed in the Annex.Exemption from the duty shall further be conditional on the goodsdeclared and presented to customs corresponding precisely to thedescription on the ‘Undertaking Invoice’.
3. Imports accompanied by an ‘Undertaking Invoice’ shall be
declared under the following TARIC additional codes:2000R2604 — EN — 21.03.2002 — 001.001 — 23
(1) OJ L 253, 11.10.1993, p. 1. Regulation as last amended by Regulation (EC)
No502/1999 (OJ L 65, 12.3.1999, p. 1).
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Company Country TARIC additional code
Reliance Industries Limited India A181
Pearl Engineering Polymers
LimitedIndia A182
Futura Polymers Limited India A184
P.T. Polypet Karyapersada Indonesia A193
Article 3
The amounts secured by way of provisional anti-dumping duties
pursuant to Regulation (EC) No 1742/2000 on imports of certain poly-ethylene terephthalate originating in India, Indonesia, Malaysia, the
Republic of Korea, Taiwan and Thailand shall be collected at the rate
of the duty definitively imposed. Amounts secured in excess of thedefinitive rate of anti-dumping duties shall be released. Where the defi-nitive duties are higher than the provisional duties, only the amountssecured at the level of the provisional duties shall be definitivelycollected.
Article 4
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.2000R2604 — EN — 21.03.2002 — 001.001 — 24
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ANNEX
Elements tobe indicated in the Undertaking Invo ice referred toin 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 (tobe 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.’2000R2604 — EN — 21.03.2002 — 001.001 — 25