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"B COUNCIL REGULATION (EC) No 1522/2000
of 10 July 2000
imposing a definitive anti-dumping duty on imports of synthetic staple fibres of polyester originating in Australia,
Indonesia and Thailand and collecting definitively the provisional duty imposed
(OJ L 175, 14.7.2000, p. 10)
Corrected by:
"C1 Corrigendum, OJ L 278, 31.10.2000, p. 39 (1522/2000)2000R1522 — EN — 15.07.2000 — 000.001 — 1
COUNCIL REGULATION (EC) No 1522/2000
of 10 July 2000
imposing a definitive anti-dumping duty on imports of synthetic staple
fibres of polyester originating in Australia, Indonesia and Thailand and
collecting definitively the provisional duty imposed
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 not members of the
European Community (1) and in particular Article 9 thereof,
Having regard to the proposal submitted by the Commission after consulting
the Advisory Committee,
Whereas:
1.PROCEDURE
1.1. Provisional measures and definitive countervailing duties
(1) By Commission Regulation (EC) No 124/2000 (2) (the ‘provisional
duty Regulation’) provisional anti-dumping duties were imposed onimports into the Community of polyester staple fibres (‘PSF’) falling
within CN code 5503 20 00 and originating in Australia, Indonesia
and Thailand.
(2) As a result of a parallel anti-subsidy investigation, provisional
countervailing duties were imposed under Commission Regulation(EC) No 123/2000 (
3) on imports into the Community of PSF
originating in Australia, and Taiwan.
(3) Regarding the abovementioned anti-subsidy investigation, by Council
Regulation (EC) No 978/2000 (4) definitive countervailing duties on
imports originating in Australia, Taiwan and Indonesia were adopted.
1.2. Subsequent procedure
(4) Following the imposition of provisional anti-dumping duties, several
parties submitted comments in writing. In accordance with the
provisions of Article 6(5) of Regulation (EC) No 384/96 (the ‘basicRegulation’), the parties which so requested were granted anopportunity to be heard. Parties were informed of the essential facts
and considerations on the basis of which it was intended to recommend
the imposition of a definitive anti-dumping duty and the definitivecollection, at the level of this duty, of amounts secured by way ofprovisional duty. They were also granted a period within which to
make representations subsequent to this disclosure.
(5) The oral and written comments submitted within the deadlines set for
that purpose by the interested parties were considered and, where
deemed appropriate, taken into account for the definitive findings.
1.3. Non-cooperation
(6) Following the imposition of provisional measures, one non-cooper-
ating Indonesian exporting producer requested the Commission toreconsider its status as non-cooperator. The claim was that, despite thedifficulties caused by the deadlines, this company replied to the
Commission questionnaire and that this was an indication of its
intention to cooperate.
(7) As explained in recital 18 of the provisional duty Regulation, this
exporting producer failed to provide a completed response to the
questionnaire within the deadline, which was extended several times in!B
(1) OJ L 56, 6.3.1996, p. 1. Regulation as last amended by Regulation (EC) No 905/98
(OJ L 128, 30.4.1998, p. 18).
(2) OJ L 16, 21.1.2000, p. 3.
(3) OJ L 16, 21.1.2000, p. 30.
(4) OJ L 113, 12.5.2000, p. 1.2000R1522 — EN — 15.07.2000 — 000.001 — 2
order to enable the company to submit a meaningful reply. The
provisional determination of non-cooperation should therefore beconfirmed.
2.PRODUCT CONCERNED AND LIKE PRODUCT
(8) The product concerned is synthetic staple fibres of polyesters, not
carded, combed or otherwise processed for spinning, which is currentlyclassifiable under CN code 5503 20 00. It is commonly referred to aspolyester staple fibres or PSF .
(9) The Royal Thai Government (‘RTG’), the Government of Indonesia
(‘GOI’), certain exporting producers and a users’ association (‘Euro-fibrefill’) claimed that the Notice of Initiation of the present
proceeding did not cover PSF types for non-spinning applications,
and consequently these PSF types should have been excluded from theproceeding.
(10) It was also argued that, in any event, a differentiation should be made
between PSF types used for spinning applications (also called woven,
or ‘PSFS’) and PSF used for non-spinning applications (also callednon-woven, fibrefill or ‘PSFNS’) because of different physical,
technical and chemical characteristics and different use. Furthermore,
it was alleged that inter-changeability, if any, between PSFS andPSFNS was very limited and concerned only certain types of fibresoriginally intended for PSFS which may be used as PSFNS. Actually,
some interested parties indicated that the differentiation between PSFS
and PSFNS types would be reflected in the thickness expressed in‘denier’. In their opinion, PSF types below 3 denier are used by thespinning industry, whereas types above 3 denier are used in
non-spinning applications.
(11) Moreover, they argued that the Community industry mainly produces
PSFS and that consequently most PSFNS types have to be sourced
outside the Community.
(12) Similarly, one exporting producer in Indonesia claimed that PSF
produced from recycled raw materials (‘recycled PSF’) should not be
included in the same category as PSF produced from regular raw
materials (‘regular PSF’), because both have a distinct productionprocess, they are produced with different raw material and they havedifferent end-uses. They therefore argued that recycled PSF should not
be covered by the present proceeding.
(13) In this respect it should be noted that the Notice of Initiation, as well as
the complaint, clearly reproduce the description of the relevant CN
code which covers all types of PSF . Notwithstanding this, after the
initiation of the present investigation, the wording of the description ofthe relevant CN code was wrongly interpreted by certain exportingproducers. Subsequently, it was clarified that both the complaint and
the Notice of Initiation covered all types of PSF exported by the
countries concerned and produced by the Community industryirrespective of their use.
(14) In fact, the Community industry produces all types of PSF and in
particular PSFNS. Indeed, contrary to allegations suggesting verylimited activity of the Community industry in PSFNS production, theinvestigation showed that during the investigation period, ‘IP’ (1 April
1998 to 31 March 1999), the sales of PSFS types represented around
25 % of sales of the Community industry, whereas PSFNS typesrepresented around 75 %.
(15) It was also found that about 50 % of the imports of PSF originating in
Australia, Indonesia and Thailand were PSFS types, whereas the other50 % were PSFNS types.
(16) As far as the alleged differences in physical, technical and chemical
characteristics are concerned, it should be recalled that PSF comes in awide range of different types, of generally the same chemicalcomposition. They are also produced with the same production
facilities and even on the same production lines. The investigation has
shown that, depending on the operator, between 15 and 80 types ofPSF are produced by both exporting producers and the Communityindustry. The main characteristics by which different types of PSF can
be distinguished are thickness (denier), length, tenacity, grimp and
shrinkage. It is clear that between the ‘bottom end’ and the ‘top end’ of!B2000R1522 — EN — 15.07.2000 — 000.001 — 3
the range, there are differences, in terms of the above technical
characteristics. It must however be noted that differences in physicalcharacteristics exist for types of even the same thickness, sinceproduction is normally made according to customers’ specifications.
(17) The alleged almost complete differentiation of PSF types using the 3
denier threshold reflecting differences in the use of the product, was
not confirmed by the present investigation, in particular by the analysisof the actual data received from the exporting producers and theCommunity industry. In fact, significant overlapping between different
types of PSF was actually established. This examination showed that
sales of PSF below 3 denier to non-spinning industries and above 3denier to the spinning industry covers about 20 % of the imports fromthe three countries concerned and of the Community industry’ s sales.
Moreover, 7 % of the fibres are exactly at the threshold point of 3
denier, which are sold either for spinning or non-spinning uses. Theinvestigation has therefore shown that there is no clear dividing line
between the various types, as there is overlapping and consequently
competition between ‘adjacent’ types within this range of types.
(18) Apart from the overlap mentioned above, the fact that the same PSF is
used for both spinning and non-spinning applications has also beenconfirmed by the existence of a clear one-way inter-changeability
found for certain PSF types. Indeed, PSFS can be sold for non-spinning
uses if the quality of the fibres is not suitable for spinning uses.Consequently, following the practice of the Community in such cases,the various types of PSF involved should be considered as forming one
single product.
(19) As regards the alleged difference in cost of production of PSFS and
PSFNS, it should be noted that such difference is negligible. This isalso reflected in the fact that there are no big differences in the salesprices of the PSFS and PSFNS, e.g. the regular types of PSF for
spinning and non-spinning purposes.
(20) As mentioned above, all PSF types are produced using the same
production equipment. Furthermore, switching from one PSF type toanother, apart from certain adjustment and calibration costs, does notinvolve any additional investments. Although as such this is not
relevant for the determination of the product concerned and like
product, it follows that the Community industry can produce any typeof PSF . Consequently, even if, as alleged, certain PSF types were notreadily available from the Community industry, this is not due to
technical reasons but to the depressed price level caused by dumped
imports which customers have used in their requests for price quotes.Therefore, the argument that certain types of PSF are not available
from the Community industry has not been confirmed.
(21) Finally, it should be recalled that the existence of different types of
PSF , variation in quality of raw material used, production processes
and uses does not entail any significant differences in the basicphysical, chemical and technical characteristics of PSF . Therefore,
recycled and regular PSF should be considered as being part of the
product concerned for the purpose of this proceeding.
(22) Based on the foregoing, it is considered that the comments received
regarding the definition of the product concerned and the like product,are not such as to invalidate the conclusions of recitals 10 to 12 of the
provisional duty Regulation. Consequently, these conclusions, which
are in line with the conclusions reached for the same product inprevious investigations, are hereby confirmed.
3.DUMPING
3.1. Australia
3.1.1. Normal value
(23) Following the adoption of provisional measures, the sole Australian
exporting producer claimed that the Commission had wronglyconsidered one domestic user as a related company and shouldtherefore not have excluded the transactions to this company in
determining normal value. According to the exporting producer, this
user was an independent customer.!B2000R1522 — EN — 15.07.2000 — 000.001 — 4
(24) This claim was rejected because according to the information received
on the spot, the user in question and the Australian exporting producerwere each owned by a trust. Both trusts were controlled by the samefamily. Moreover, the company itself admitted that some directors and
shareholders in both companies were common. The conclusion drawn
was that both companies were associated parties within the meaning ofArticle 2(1) of the basic Regulation. In addition, the company did notshow that the relationship had not affected the price levels between the
two parties. Furthermore, the Commission established that these
transactions were not made in the ordinary course of trade, as theywere made at a loss.
(25) The Australian exporting producer also claimed that in determining the
cost of the raw materials the amounts actually paid instead of the prices
invoiced for raw materials should have been used.
(26) This claim was accepted and the cost of production used in the
ordinary course of trade test and in constructing normal value wasrevised accordingly.
3.1.2. Export price
(27) No claims were made concerning the determination of the export price.
The conclusions set out in the provisional duty Regulation are hereby
confirmed.
3.1.3. Comparison
(28) Following the adoption of provisional measures, the Australian
exporting producer reiterated its request for an allowance for technical
services in the domestic market.
(29) As laid out in recital 40 of the provisional duty Regulation, the
company did not give a satisfactory explanation with regard to thenature of its claims and also did not provide satisfactory explanationsor documentary evidence to support the amounts of the adjustment
claimed. Furthermore, the company was not able to demonstrate that
the factor concerned led to different prices being charged to customerson the domestic and export markets.
(30) The claim was consequently rejected and the conclusions set out in the
provisional duty Regulation are confirmed.
3.1.4. Dumping margin
(31) The comparison of the revised weighted average normal value with the
weighted average export price by product type on an ex factory basisshowed the existence of dumping. The definitive dumping margin as a
percentage of the cif import price duty unpaid is 18 %.
3.2. Indonesia
3.2.1. Sampling
(32) As explained in the provisional duty Regulation, sampling has been
used for Indonesia. Following the adoption of provisional measures,
the Indonesian authorities argued that they had not agreed to thesample proposed by the Commission at the time of the selection of thesample. However, it should be recalled that the companies finally
selected in the sample were those which had been suggested in writing
for this purpose by the Indonesian authorities themselves. No furthercomments concerning sampling were received and, therefore, the
conclusions of the provisional duty Regulation are hereby confirmed.
3.2.2. Normal value
(33) Following the adoption of provisional measures, the Commission
reviewed the extent of the cooperation it had received from oneIndonesian exporting producer. In this respect, it was concluded that
problems which were encountered both with the information provided
in the response to the questionnaire and with the subsequenton-the-spot verification meant that certain information supplied bythe company could not be adequately verified in particular in relation
to the cost of production. The information as presented was misleading
and as such impeded the investigation. Moreover, explanations!B2000R1522 — EN — 15.07.2000 — 000.001 — 5
submitted following the adoption of provisional measures raised
further doubts about the original information submitted. The companywas therefore informed that certain information submitted will not betaken into account and was granted an opportunity to provide further
explanations. The explanations provided were not considered satis-
factory. In these circumstances, the findings were made on the basis ofthe facts available in accordance with Article 18 of the basicRegulation. However, information supplied by this company was still
used to the extent possible for the purpose of this investigation.
(34) This Indonesian exporting producer claimed that the Commission
should have calculated separate normal values and separate dumpingmargins for second and third quality grades of the product concerned.
The company claimed that by reporting data for different sub-qualities
separately, it had followed the instructions of the questionnaire, since itconsidered that the technical specifications of second and thirdqualities were different and that, furthermore, these qualities were
differentiated in the company’ s records. The company also reported
different costs of production for the different qualities, allegedly basedon a costing system which allocated costs in order to allow cost
recovery for the sub-qualities. In addition, the company claimed that
the comparison of grouped sub-qualities was not appropriate.
(35) It was found that the company neither followed the reporting
instructions set out in the questionnaire, nor its own records, as madeavailable to the Commission, with regard to the classification of
sub-standard qualities. Notwithstanding the above, the cost of
production of the different qualities as reported by the company inthe response to the questionnaire was further examined. In this respect,it was established that these costs of production of the second and third
qualities did not reasonably reflect the costs associated with the
production and sale of the product under consideration, as provided inArticle 2(5) of the basic Regulation. In fact, the costs of production
reported for the sub-qualities did not contain labour cost, depreciation,
overheads and selling, general & administrative (‘SG & A’) expenses.Furthermore, it was found that the company’ s allegation that theypriced just to cover cost conflicted with the information submitted,
which showed high profits for the sub-qualities. Moreover, it was not
contested that the aim of the company was to produce the first qualityPSF . This implied that the actual cost of production of all PSF ,irrespective of quality, was the same. Therefore, the cost of production
was recalculated on the basis of the total actual cost incurred during
the investigation period which was then divided by the total volumeproduced in order to establish an average cost of production.
(36) According to the methodology described in the provisional duty
Regulation, the revised cost of production was then applied to verify
whether domestic prices were made in the ordinary course of trade.Where this was found to be the case, domestic prices were used toestablish normal value. Otherwise, normal value was constructed. On
this basis, the grouping or otherwise of the allegedly different
sub-qualities did not affect the outcome. However, it was acceptedthat the company had some sub-standard output of the productconcerned and this was treated the matter as a comparison issue.
(37) The same Indonesian exporting producer claimed that the general and
administrative expenses used in calculating normal value should havebeen allocated over the entire sales of the division producing theproduct concerned, including the internal sales.
(38) This claim was rejected, as expenses were incurred by sales to
independent customers and not by internal transfers to other divisions
that further process the product concerned.
(39) The same Indonesian exporting producer claimed that the Commission
should have used the product specific SG & A expenses in calculating
normal value and not the total SG & A expenses of the division
producing the product concerned.
(40) This claim was rejected, as the company failed to provide the necessary
supporting documentation which would have allowed a properverification of the product specific SG & A expenses during the
on-the-spot investigation. Therefore, the overall allocation of the
SG & A expenses of the division was maintained.!B2000R1522 — EN — 15.07.2000 — 000.001 — 6
(41) The same Indonesian exporting producer claimed that the Commission
had included certain identifiable export expenses in the cost of theproduct sold on the domestic market in calculating normal value.
(42) The claim was accepted and the allocation of the SG & A expenses
was revised on the basis of the chart of accounts submitted with the
questionnaire response and used in the verification, provided that itclearly indicated the accounts concerned as related to exports.
(43) The same Indonesian exporting producer claimed that the Commission
should not have allocated to the product concerned the SG & A of one
organisational unit of the company allegedly involved in financialmarket activities as this unit was a separate profit centre and did not
act as a central service provider to other divisions.
(44) This claim was rejected. The company provided no evidence that the
organisational unit in question was a division independent from theoperational divisions nor that it acted as a profit centre. In particular,
the audited financial statements of the company made no reference to
financial market activities carried out by an independent profit centre.In fact, the documents provided by the company showed that theorganisational unit in question was centrally involved in the operations
of the company as defined in the audited accounts. Its activities were
those normally carried out by a head office. Therefore, the allocationof the SG & A expenses of this unit to the product concerned wasmaintained in the calculation of normal value.
(45) The same Indonesian exporting producer claimed that the Commission
should not have allocated the interest expenses of the organisationalunit mentioned above to the product concerned. The company argued
that the loans declared for this unit funded activities on financial
markets and investments in subsidiary companies. These loans weretherefore, according to the company, unrelated to the production andsales of the product concerned and an attribution to the different
operational divisions would be incorrect. It was further argued that the
funding requirements of the division involved in the production andsales of the product concerned were met by the division itself.
(46) This claim was rejected because, as indicated in recital 44, above, the
activities of this organisational unit were those normally carried out by
a head office. In addition, the company did not provide any satisfactoryevidence why the loans would not have been used to finance theactivities of the different operational divisions. Moreover, the
explanation provided with regard to the funding of the manufacturing
and the financial market activities were not confirmed by the auditedfinancial statements of the company.
(47) When examining the claim concerning these financial expenses, it was
established that the company entered into hedging arrangements inorder to limit exchange rate risks related to the abovementioned loans.These hedging transactions bore an annual cost in the form of a
premium. Although the company claimed that this cost should not be
allocated to the product concerned for the reasons mentioned in recital45, it was considered that these costs had to be included in the SG & Aexpenses and allocated to all products on the basis of the total turnover
of the company. In addition, a claim to consider foreign exchange
gains on hedging transactions was rejected, since such exchange rategains are not taken into account in anti-dumping investigations,whether realised or not.
(48) The same Indonesian exporting producer claimed that if interest
expenses were allocated to the different operational divisions, theseshould be offset by corresponding income.
(49) This claim was accepted insofar as it concerned income from
short-term deposits of funds. The SG & A expenses were thereforerevised before being used in the ordinary course of trade test and inconstructing normal value.
3.2.3. Export price
(50) No claims were made concerning the determination of the export price.
The conclusions set out in the provisional duty Regulation are hereby
confirmed.!B2000R1522 — EN — 15.07.2000 — 000.001 — 7
3.2.4. Comparison
(51) As indicated in recital 36, one exporting producer claimed that quality
differences of the production output should be taken into account. In
these circumstances, it was considered appropriate to grant a specialadjustment on the normal value for sub-standard quality.
(52) Following the adoption of provisional measures, one Indonesian
exporting producer claimed that the Commission should havecalculated the amount for credit costs on export sales on the basis of
the actual expenses incurred by the company when discounting L/C
Bills. The company further claimed that the interest rates charged inthe framework of export sales were lower than the interest rates fordomestic sales in the same currency.
(53) This claim was rejected because, in accordance with Article 2(10)(g)
of the basic Regulation, an adjustment is to be made for differences inthe cost of any credit granted for the sale under consideration only
‘provided that it is a factor taken into account in the determination of
the prices charged’. In its questionnaire response, the company did notsupply any information with regard to the interest rates charged for
credit in the framework of export sales, although this was explicitly
requested in the questionnaire. The claim that the rate of interest forexport sales credit was lower than that for domestic sales, which wereboth made in the same currency, could therefore not be verified
because this factor was unknown at the time of the verification.
3.2.5. Dumping margin
(54) The comparison of the weighted average normal value, revised as
appropriate, with the weighted average export price by product type on
an ex factory basis, showed the existence of dumping for bothinvestigated exporting producers included in the sample.
(55) The dumping margin of one investigated company was revised.
Accordingly, the weighted average dumping margin calculated for thecooperating companies not included in the sample pursuant to Article9(6) of the basic Regulation was also revised. However, the revised
calculations have not affected the dumping margin established for the
non-cooperating companies which is hereby confirmed. The definitivedumping margins as a percentage of the cif import price duty unpaid
are as follows:
— Sampled exporting producers investigated:
— PT. Indorama Synthetics Tbk.: 8,4 %
— PT. Panasia Indosyntec: 14,8 %
— Cooperating exporting producers not included in the sample:
— PT. GT Petrochem Industries Tbk.: 14,0 %
— PT. Susilia Indah Synthetic Fiber Industries: 14,0 %
— PT. Teijin Indonesia Fiber Corporation Tbk.: 14,0 %
—Non-cooperating exporting producers: 20,8 %
3.3. Thailand
3.3.1. Normal value
(56) Following the adoption of provisional measures, one exporting
producer, which did not keep separate cost of sales accounts byfinished product, argued that the Commission should have acceptedthe detailed model-specific cost of production calculations which they
had made expressly for the purpose of replying to the questionnaire.
(57) This exporting producer further argued, after provisional measures,
that their investigation period-end closing stock value from their
monthly internal management results had been calculated on an
expected market value basis rather than on a cost basis and therefore it!B2000R1522 — EN — 15.07.2000 — 000.001 — 8
was not appropriate for that figure to be used for the cost of
production.
(58) It also argued that it would have been more appropriate to establish the
cost of production on the closing stock figure at the end of the
financial year than on the closing stock figure at the end of the
investigation period, as the year end closing stock figure was audited,covered nine months of the investigation period rather than three
months and was similar to the cost of production specifically
calculated by the company for the first nine months of theinvestigation period.
(59) In addition, it claimed that monthly costs of production should have
been used due to fluctuations in raw material costs and exchange rates
and the fact that there were no exports to the Community duringcertain months.
(60) However, it was found that the specifically calculated costs were
inconsistent with certain closing stock values reported by thisexporting producer in its questionnaire response, given the stockvaluation method reported therein, i. e. the lower of average cost or net
realisable value.
(61) The exporting producer had denied the existence of management
accounts for the product concerned in its questionnaire response and
no internal management results containing closing stock values were
obtained or verified during the on-the-spot verification.
(62) With regard to allegedly audited stock figures, no financial year end
closing stock valuation schedules were obtained during the verification
visit, despite being requested, and therefore, it was not possible to
determine the historically utilised stock valuation method or to verifythe unit stock values on a product type or total basis at the year end.
(63) In these circumstances, it was considered that the specifically
calculated monthly and annual costs of production were not reliable.Therefore, the investigation period-end closing stock value, whichaccording to all information received by the Commission up to the end
of the verification visit, was based on the lower of cost or net realisable
value, should be maintained as the cost of production for thedetermination of normal value.
(64) Claims made by another exporting producer for adjustments to its
SG & A expenses were rejected where the items had already beentaken into account or with regard to financial expenses and income andcertain fees and taxes, because the claims were inconsistent with the
company’ s questionnaire response.
(65) The same exporting producer claimed that certain goods returns and
sales discounts should have been deducted from the domestic sales
transaction listing. The claim with regard to goods returns was rejected
as the returns did not relate to sales in the investigation period and therelated quantities had not been included in the listing. The claimrelating to sales discounts was rejected as for certain discounts, no
direct link to the sales under consideration was demonstrated before
completion of the verification visit while for other discounts, no claimwas made in the exporting producer’ s questionnaire response.However, the net sales figure used in determining the SG & A
percentage for the investigation period was increased to be consistent.
(66) Two exporting producers argued that for the purposes of the ordinary
course of trade test, the comparison of prices with the cost of
production should be carried out on a quarterly basis. They indicated
that both raw material prices and sales prices decreased significantlythroughout the investigation period and therefore, it was necessary toperform the test on a quarterly basis to ensure a fair comparison. This
aspect was examined and the calculation was adjusted to a quarterly
basis.
(67) Two exporting producers claimed that technical assistance costs should
be allocated on a turnover basis for the purpose of calculating the
domestic SG & A expenses to be included in the cost of production.This argument was accepted.
(68) Three exporting producers argued that the exclusion of foreign
exchange gains and losses from their SG & A expenses at the
provisional stage was unjustified. In general, exchange rate gains and!B2000R1522 — EN — 15.07.2000 — 000.001 — 9
losses were not taken into account as the exchange rates used by the
Commission were those applicable on the invoice date. However,insofar as they arose from purchases of raw materials, the Commissionadjusted the normal value calculations in order to take the relevant
exchange gains and losses into account. One of these exporting
producers then claimed that the calculation of the foreign exchangegain included within the SG & A expenses should have been based onaudited figures. However, this was not accepted as no allegedly audited
figures were received until late in the investigation when they were no
longer verifiable.
3.3.2. Export price
(69) No claims were made concerning the determination of the export price.
The conclusions set out in the provisional duty Regulation are hereby
confirmed.
3.3.3. Comparison
(70) Two exporting producers requested a comparison of export price with
normal value on a quarterly basis and one on a monthly basis. Therequest was granted for the exporting producers requesting on a
quarterly basis and rejected for the third exporting producer for which
no reliable normal value could be determined on a monthly/quarterlybasis.
(71) One exporting producer argued that an allowance should be granted for
freight paid on returned goods. However, this claim was rejected as it
was not considered appropriate to include an inland freight costallowance for return freight costs where the sales were partially or
totally cancelled.
(72) The same exporting producer requested that an allowance should be
granted for technical assistance, but the allowance was rejected as thetechnical assistance was not carried out on the basis of a contractual or
legal obligation.
(73) Two exporting producers claimed that different levels of trade existed
for export and domestic sales of the product concerned. This wasaccepted, but given that the existing difference in the levels of trade
could not be quantified because of the absence of the relevant levels on
the domestic market, a special adjustment was granted under Article2(10)(d)(ii) of the basic Regulation.
(74) Two exporting producers claimed that they should be granted a
currency conversion adjustment as they argued that the currencymovement had been significant (over 10 %) and took place over aperiod of five months. This adjustment was not accepted as it was
considered that the currency movement was fluctuating rather than
reflecting a sustained movement.
3.3.4. Dumping margin
(75) The comparison of the revised, where appropriate, weighted average
normal value with the weighted average export price by product type
on an ex factory basis showed the existence of dumping for all
investigated exporting producers.
(76) Following changes to the calculations in accordance with the findings
noted above, the dumping margins of one company and one group of
companies were revised. In consequence, the dumping margin for any
non-cooperating companies, which is set at the level of the highestdumping margin established for a cooperating company, was alsorevised. The definitive dumping margins as a percentage of the cif
import price duty unpaid are as follows:
— Indo Poly (Thailand) Ltd. 15,5 %
— Teijin Polyester (Thailand) Ltd. 26,9 %
— Teijin (Thailand) Ltd. 26,9 %
— Tuntex (Thailand) Public Co. Ltd. 27,7 %
— Non-cooperating exporting producers 27,7 %.!B2000R1522 — EN — 15.07.2000 — 000.001 — 10
4.INJURY
4.1. Procedural issues
(77) The RTG and one exporting producer in Indonesia, claimed that the
non-confidential summaries of submissions made by some Community
producers included in the definition of the Community industry were
not complete or sufficiently detailed, in order to allow them toeffectively exercise their right of defence. They therefore argued thatthe Commission’ s failure to take this into account constituted a
violation of the WTO Anti-Dumping Agreement (hereinafter WTO
ADA) and Article 19 of the basic Regulation.
(78) Regarding this claim, it must be noted that these parties received full
disclosure in accordance with Article 19(4) of the basic Regulation.
The disclosure included the general information and the detailedevidence relied on by the Commission for its findings. In addition, theCommission requested the Community producers in question to submit
additional non-confidential information. This non-confidential in-
formation was submitted by the Community producers concerned,following the Commission’ s definitive disclosure to the interestedparties, which had full access to it, consequently allowing them to
exercise their right of defence. In any event, even if one of the
Community producers concerned were excluded from the definition ofthe Community industry, as argued by the abovementioned parties,
such a development would have not affected the overall conclusions on
the situation of the Community industry. Indeed, it was established thatsuch an exclusion would have neither any impact on the trends of theeconomic indicators pertaining to the Community industry, nor on the
standing of the Community industry, since the production of this
Community producer was small in comparison to the total productionof the other Community industry producers.
4.2. Definition of the Community industry
(79) The RTG and one Indonesian exporting producer argued that the
production volume of the Community industry as indicated in recital
64 of the provisional duty Regulation had been overstated. Morespecifically, they underlined that it was determined that the seven
cooperating Community producers included in the definition of the
Community industry represented about 85 % of the total Communityproduction, whereas the complaint stated that the nine complainingproducers represented the same share of the total Community
production.
(80) Furthermore, it was argued that two complaining Community
producers included in the definition of the Community industry wererelated to an exporting producer in a country concerned. According to
the Commission’ s consistent practice these two producers should be
excluded from the Community industry.
(81) As far as the representativity of the Community industry is concerned,
it should be noted that, on the one hand, the data contained in the
complaint covered 10 months of 1998. These data were thusextrapolated to cover a 12-month period. On this basis, the ninecomplaining companies represented in fact around 89 % of total
Community production in 1998. On the other hand, based on the data
received in the course of the present investigation and verified at thelevel of the seven cooperating Community producers constituting theCommunity industry, the investigation revealed that these represented
around 85 % of total Community production in 1998. Consequently,
the share of total Community production represented by theCommunity industry mentioned in recital 64 of the provisional duty
Regulation is hereby confirmed.
(82) It should be underlined that the provisions of Article 4(1)(a) of the
basic Regulation do not call for an automatic exclusion of Communityproducers from the Community industry when they are related to
exporting producers concerned. This Article states that the term
‘Community industry’ may be interpreted as referring to the rest of theproducers, when it is found that certain producers are related to theexporters. The situation should therefore be examined on a case-by-
case basis in the light of Article 4(2) of the basic Regulation. In fact,
Community producers related to exporters are to be excluded from the!B2000R1522 — EN — 15.07.2000 — 000.001 — 11
definition of the Community production, if this relationship leads the
producer concerned to behave differently from other producers.
(83) In the light of the above considerations, the investigation showed that
the two Community producers in question did not behave differently toother producers which were not related to the exporting producers
concerned. They fully supported the complaint which led to the
initiation of the present proceeding and actively participated in theinvestigation. Furthermore, during the on-the-spot verification andbased on the evidence available, no statutory or organisational
restrictions imposed by the shareholders in the country concerned
were found to exist in relation to the operation and business decisionsof the two companies in question. Finally, the RTG and the above
exporting producer did not provide any proof of such restraining
control. Consequently, it was confirmed that the two Communityproducers should not be excluded from the definition of theCommunity production and therefore from the Community industry.
Since no other comments were received regarding the definition of the
Community industry, the conclusions of recital 64 of the provisionalduty Regulation are hereby confirmed.
4.3. Injury analysis period
(84) The GOI claimed that in order to obtain a meaningful assessment of
the trends upon which the injury determinations are based, theinformation relating to the indicators examined should be established
on the basis of 12-monthly periods from 1996 onwards in line with the
IP .
(85) It must be noted that the IP covers the last nine months of 1998 and the
first three of 1999. The examination of indicators for the calendaryears 1996 to 1998 covers also three-quarters of the IP . The
comparison of 1998 and IP figures therefore, simply shows the impact
of the first quarter of 1999 to these indicators and cannot be consideredas invalidating the examination of the trends established on the basis of
these indicators. This claim was therefore rejected.
(86) The GOI furthermore argued that the period of injury assessment,
which covered 1996 to the IP , was different from the period wheredumping was assessed, i.e. the IP . As these two periods did notcoincide, the conclusions on injury were considered by the GOI as
legally flawed. It was moreover argued that if the basis for the injury
assessment was set at 1998, the trends of all indicators would besignificantly different.
(87) The purpose of the injury investigation is to evaluate the effect of the
dumped imports on the economic situation of the Community industry
during the IP . This entails a finding of injury during the IP . In order to
make such analysis, trends are established for a number of indicatorson the basis of information relating to a number of years preceding the
IP . Therefore, a comparison of indicators between the IP and one
specific previous year, as suggested by the GOI, does not affect theresults of the analysis derived therefrom. Indeed, it is the trends of theindicators which are examined over a number of years up to the IP and
not the absolute comparison of figures of the IP with any particular
year that precedes it, which are relevant to reach a conclusion oninjury.
4.4. Consumption in the Community
(88) Two exporting pr oducers argued that the consumption in the
Community set out in recital 65 of the provisional duty Regulationwas significantly incorrect. In particular, they argued that the
production, sales and stocks figures of the Community industry could
not be reconciled. In addition, they claimed that the Commission didnot reveal the basis upon which the determinations concerning thesales of the non-cooperating Community producers was estimated.
(89) As regards the reconciliation of the consumption figures, it should be
noted that one Community producer related to a company belonging to
the Community industry closed down before the IP . Therefore, noreliable information on its production and production capacity couldbe obtained from this company. As far as sales and stocks information
is concerned, this company made its sales exclusively through the
related company belonging to the Community industry. Therefore,!B2000R1522 — EN — 15.07.2000 — 000.001 — 12
reliable information relating to sales and stocks was obtained from the
latter company covering the whole period considered and the data werereconciled appropriately.
(90) Finally, the Commission estimated the sales volume of the non-
cooperating Community producers in the provisional duty Regulation
on the basis of facts available. For one non-cooperating producer thefigures included in its partial reply to the Commission’ s questionnairehad been used, whereas for the others the figures indicated in the
complaint were used.
(91) In the light of the above explanations, the consumption figures
indicated in recital 65 of the provisional duty Regulation are
confirmed.
4.5. Imports of PSF into the Community from the countries
concerned
4.5.1. Cumulative assessment of imports
(92) Some exporting producers argued that the imports of PSF from
Thailand should not be assessed cumulatively with the imports fromAustralia and Indonesia because they represented less than 1 % of
consumption in 1996 and 1997.
(93) In the context of cumulation, it is considered that the assessment of
whether imports from a country concerned by an anti-dumpinginvestigation are negligible should exclusively be made during the IP .
Indeed, dumping margins, as well as the existence of injury are
established during the IP . Since the imports from Thailand were abovenegligible levels during this period, the above claim was rejected.
4.5.2. Price undercutting
(94) Some exporting producers claimed that the Commission did not take
into account differences in quality of types of PSF in determining price
undercutting leading to incorrect results. In their opinion, the pricecomparison should be performed separately for the first and lowerquality products, as well as for the recycled PSF types. They also
claimed that an adjustment for level of trade should have been granted,
given that their sales were mainly destined to wholesalers anddistributors whereas the Community industry mainly sold PSF to
end-users.
(95) Following these claims, prices were compared separately for lower
quality and recycled PSF and it was considered that an adjustment forlevel of trade differences should be granted to all the exporting
producers including those which were only selling to wholesalers and
distributors. The results of this price comparison showed slightlyhigher undercutting margins than those established at the provisionalstage for Australia and slightly lower for Indonesia and Thailand. The
results of the revised undercutting calculations expressed on the
Community industry’ s turnover, taking into account both of the aboveclaims, ranged between 24,9 % and 46,8 % for the countries concerned
and between 17,7 % and 61 % for individual companies.
4.6. Economic situation of the Community industry
4.6.1. General
(96) The RTG and one exporting producer claimed that, based on an
interpretation of the WTO ADA, the examination of the economicsituation of the Community industry requires an evaluation of allrelevant economic factors and indices having a bearing on the state of
that industry, including factors such as productivity, return on
investments, the magnitude of the actual margin of dumping, negativeeffects on cash flow, wages and growth.
(97) Furthermore, they contested the accuracy of the data provided in the
provisional duty Regulation for certain injury factors. In their opinion,
although the seven Community producers constituting the Communityindustry in the present investigation were the same as in a previous
proceeding, the data provided for some injury factors were different.
They therefore requested disclosure of the names of the companieswhich participated in the previous proceeding.!B2000R1522 — EN — 15.07.2000 — 000.001 — 13
(98) It should be recalled in this regard that Article 3(5) of the basic
Regulation lists a number of factors and economic indicators and theCommission collected information which enabled it to consider allfactors and indices which were decisive for a meaningful analysis of
the state of the Community industry. It follows that the claim that the
Commission’ s analysis was not complete is not valid.
(99) It is confirmed that the seven Community producers which constituted
the Community industry in the previous proceeding were not the same
as in the current proceeding. However, the request for disclosure could
not be accepted given that the RTG and the exporting producer inquestion were not interested parties in that previous proceeding.
4.6.2. Production, capacity and capacity utilisation
(100) The Government of Australia (hereafter ‘GOA’) contested the method
used by the Commission to assess the production capacity of the
Community industry for the product concerned. In its opinion, the
decrease in production capacity by 7 % was determined with regard tocapacity used for the production of other products and was thereforeincorrect. The GOA considered that production capacity for PSF
should have been assessed exclusively on the actual production of the
PSF covered by the investigation.
(101) In any event, the GOA considered that the reduction in the Community
industry’ s production capacity was not compatible with a finding of
material injury: firstly because this reduction did not allow the
Community industry to participate in the considerable growth of themarket (+ 27 %) during the period considered; and secondly, becausethe reduction in capacity was motivated by the fact that production was
oriented to more profitable products than PSF .
(102) With respect to the assessment of production capacity, it should be
underlined that the product concerned is produced on the sameproduction lines as other products of the same family. It is therefore
impossible and meaningless to directly identify the actual capacity
exclusively installed for one product as compared to all the productsproduced on the same production lines. In actual fact, the assessmentof production capacity for PSF was based on a ratio comparing the
actual production of PSF to the total production of all products
produced on the same production lines. Consequently, contrary to theclaim made by the GOA, the assessment of production capacity for
PSF takes into account the actual production of PSF .
(103) Furthermore, it should be noted that the switch from the production of
PSF to the production of other products was motivated mainly by thelong-term losses incurred by the Community industry on productionand sales of PSF facing continued unfair competition from dumped
and subsidised imports from third countries. The reduction in capacity
is therefore particularly relevant for the determination of injury butmore specifically for the analysis of the causal link between the
dumped imports and the injury suffered by the Community industry
discussed below.
(104) On this basis, it is considered that the claims of the GOA are
unfounded. Accordingly, the data provided, the method described forassessing production capacity for PSF and the conclusions contained in
recitals 72 to 74 of the provisional duty Regulation are hereby
confirmed.
4.6.3. Sales prices of the Community industry
(105) Following a more detailed analysis of the Community industry’ s sales
prices, the Commission found that the figures indicated in the table ofrecital 76 of the provisional duty Regulation should be slightly revised
as follows:
Average sales price 1996 1997 1998 IP
Community industry - Index (1996-
100)100 92 92 88
(106) Some exporting producers argued that the above decrease in the
Community industry’ s sales prices should be seen in the light of the!B2000R1522 — EN — 15.07.2000 — 000.001 — 14
significant decrease in raw material purchase price in particular during
the IP . Accordingly, the decrease in sales price does not constitute avalid indicator of injury in the present case.
(107) In this respect, it should be clarified that in recital 79 of the provisional
duty Regulation the 31 % decrease in cost of manufacturing should infact read 31 % decrease on cost of raw materials. The Commissionmade an analysis on the impact of the decrease of raw material costs
on sale prices. The analysis showed that for the overall Community
industry the above decrease in raw material costs represented around23 % of total cost of production, or 21 % of sales price between 1996and the IP . On this basis, the statement made in recital 79 of the
provisional duty Regulation that the cost of production was reduced
faster than sales prices is hereby confirmed. This situation in factallowed profitability to be increased by 10,7 percentage points in
absolute terms during the period considered (from – 4 % in 1996 to
6,7 % in the IP).
(108) However, it is considered that the evolution of the Community
industry’ s sales price should be seen in the light of the price evolution
of the countries concerned. Indeed, as stated in recital 69 of the
provisional duty Regulation it is recalled that PSF imported from thecountries concerned followed a continuous decreasing tendency
throughout the period considered. The decrease was as high as 22 %
during that period. If the Community industry would have followedthis trend it would still have incurred losses at the same level as in1996.
(109) Finally, when analysing the Community industry’ s prices on the
Community market, one should bear in mind that the Communityindustry did not reach the minimum level of profit of 10 % during the
IP . Under these circumstances, it is considered that the Community
industry’ s sales prices constitute a relevant injury indicator given it hada bearing on the state of the industry.
4.6.4. Profitability of the Community industry
(110) The GOA claimed that in the absence of data relating to the
profitability of the Community industry prior to the appearance ofdumped imports, no proper assessment could be made as to whetherthe injury suffered by the Community industry was material.
(111) Some exporting producers claimed that the improvement in the
Community industry’ s profitability did not indicate injury. Indeed,profitability significantly improved over the period considered, namely
from a loss of around 4 % to a profit of over 6 %. They further argued
that the overall profit achieved by the Community industry within theIP could not be further increased with the current product mix of
commodities and specialities, unless more speciality PSF types would
be produced and sold by the Community industry.
(112) The present investigation showed that its improvement in profitability
was mainly the result of both the restructuring process undertaken by
the Community industry and the resulting reduction in sales, general
and administrative costs and the decrease of the raw materials purchaseprices. Production costs were reduced faster than sales prices
decreased, allowing thus the Community industry to return to profit
in 1998. Nevertheless, it was emphasised that this improvement inprofitability may only be temporary and any adverse factors,particularly possible unfavourable developments in raw material
prices, could have negative implications on the current profitability.
This statement was reinforced by the fact that the main raw materialsused in the PSF industry are largely influenced by the price of crudeoil.
(113) It should also be noted that an improvement in profitability during the
period considered does not automatically lead to the conclusion thatthe Community industry did not suffer material injury. The assessment
as to whether the injury suffered by the Community industry was
material cannot only be based on the profitability nor can it be basedon a comparison of profitability between 1996 and the IP . Indeed, theprovisions of the basic Regulation enumerate a number of factors
among which the volume of dumped imports and the effect of dumped
imports on prices on the Community market for like products and!B2000R1522 — EN — 15.07.2000 — 000.001 — 15
specifies no one or more of these factors can necessarily give decisive
guidance for a negative finding on injury.
(114) As indicated in recitals 82 to 85 of the provisional duty Regulation
regarding the conclusions on the economic situation of the Communityindustry, profitability achieved by the industry was not considered tobe a major indicator of the injury suffered by the Community industry.
Indeed, negative developments were observed for most of the
economic indicators pertaining to that industry: market share,production capacity, sales volume, sales prices, stocks, investments,
employment and significant price undercutting by dumped imports
from the countries concerned.
(115) Based on the foregoing, since no further comments were received
regarding the profitability of the Community industry, the conclusionthat profitability during the IP is inadequate is hereby confirmed.
4.6.5. Market share
(116) It has to be recalled that as mentioned in recital 77 of the provisional
duty Regulation, the market share held by the Community industry
decreased significantly from 68 % to 50,3 % of the total Communitymarket from 1996 to the IP .
(117) Some exporting producers argued that the Community industry’ s loss
in market share has to be seen in the light of the cost disadvantage itsuffers as compared to the countries concerned. In their opinion, it
cannot be expected that the industry could maintain its market share
given that its production costs are significantly higher than those of theexporting producers concerned.
(118) This argument was considered not relevant in the context of an
anti-dumping investigation. In such an investigation, it has to be
established whether imports are dumped and cause injury to the
Community industry, as this was established in the present case. Thisbeing said, exporting producers can fully reflect cost advantages theymay have in their sales prices, as long as this is done both on the
domestic and export markets.
4.6.6. Conclusion
(119) Based on the foregoing, it is considered that the above arguments and
claims are not such as to change the findings made in the provisionalduty Regulation. Consequently, the contents of recitals 82 to 85 of the
provisional duty Regulation and the conclusion that the Community
industry suffered material injury during the IP is hereby confirmed.
5.CAUSATION
5.1. Effect of dumped imports
(120) The GOA claimed that there is no evidence that the injury suffered by
the Community industry was caused by the limited volumes imported
from Australia. The GOA claimed that the market share of Australianimports was too limited (2 % of consumption) to have any influence on
prices on the Community market. Rather, they had to follow the price
trends imposed by the large operators on the Community market.Accordingly, the GOA suggested that injury, if any, was caused bylarge imports from other third countries.
(121) Similarly, the RTG claimed that since the imports from Thailand were
negligible in 1996 and 1997, they could not cause injury to the
Community industry and therefore the analysis of the impact of these
imports should begin from 1998.
(122) The RTG and one Indonesian exporting producer argued that in view
of the data published in the provisional duty Regulation the conclusionreached by the Commission that the Community industry has been
weakened was wrong. Their statement was based particularly on the
improvement in the Community industry’ s profitability during the IP . Itwas furthermore based on an analysis of market share and salesindicators pertaining to both the current investigation and the
corresponding 1996 indicators from the expiry review concerning!B2000R1522 — EN — 15.07.2000 — 000.001 — 16
PSF from Taiwan and Korea, as evidenced by Regulation (EC) No
1728/1999 (1).
(123) The same parties further claimed that some producers included in the
definition of the Community industry concentrated on the production
of high-profit speciality products. Accordingly, it could not beconcluded that the Community industry was vulnerable particularlyto Indonesian imports which are largely made of regular PSF . In their
opinion, the very high profits obtained on speciality fibres indicated
that the Community industry is largely shielded from the effects ofimports.
(124) Regarding the arguments raised by the GOA on its market share, it is
recalled that imports from Australia were found to be clearly above thede minimis level during the IP . In addition, it was found that all
conditions required for a cumulated analysis were met. In these
circumstances, comments concerning individual market shares held byindividual countries during the IP and in previous to the IP years werenot considered relevant. The same remark applied to the similar
argument raised by the RTG.
(125) In addition, it should be recalled that prices of dumped imported PSF
from all the countries concerned were undercutting the Community
industry’ s prices on the Community market having a significantnegative impact on the economic situation of the Community industry.This finding is reinforced by the fact that the PSF market is transparent
and that, therefore, price differentials or low priced offers can have a
price depressing effect.
(126) It is furthermore considered that the GOA did not provide any evidence
which would contradict the provisional finding that the Community
industry suffered material injury as a result of low-priced dumpedimports. Accordingly, the conclusion that dumped imports, taken in
isolation, had caused material injury to the Community industry is
hereby confirmed.
(127) The development of the Community industry’ s profitability was
extensively analysed in recital 79 of the provisional duty Regulation
and further information has been given in section 4.6.4. above. In thisrespect, it should be noted that the statement that the Communityindustry is concentrating in high-value PSF types is not correct.
Indeed, during the IP , the Community industry’ s sales of the so-called
commodity PSF types, which are mainly imported from the countriesconcerned, represented over 72 % of its total sales. This findingtherefore leads to confirm the conclusion that the Community industry
as a whole is affected by low-priced dumped imports.
(128) Regarding the validity of the data for 1996 extracted from the expiry
review concerning PSF from Taiwan and Korea, as explained in recital
99, the Community producers which constituted the Communityindustry in this expiry review were not the same as those constitutingthe Community industry in the present proceeding. Consequently, it is
impossible to establish a coherent and reliable trend on the basis of the
economic indicators reported for 1996 in this expiry review and onfigures for subsequent years reported in the present proceeding. Suchan approach would lead to erroneous and meaningless results.
5.2. Other factors
5.2.1. Currency fluctuations
(129) The GOA argued that the Commission failed to look at the effect that
exchange rate fluctuations have had on import prices from Australia,
specifying that during the investigation period PSF imported fromAustralia had benefited from a favourable exchange rate appreciation.
(130) In this respect it should be noted that imports from this country were
invoiced in USD, in DEM and in GBP and not in AUD on theCommunity market. The parity of the Australian currency was
therefore not relevant in the determinations made.
(131) In any event, it should be pointed out that the Australian currency
depreciated during the first seven months of the IP and subsequently
appreciated during the next five months of the IP , as compared to its!B
(1) OJ L 204, 4.8.1999, p. 3.2000R1522 — EN — 15.07.2000 — 000.001 — 17
parity to the ECU/EUR of the first month of the IP . Consequently, there
was no constant decreasing trend of the Australian currency during theIP .
5.2.2. Raw material prices in the exporting countries
(132) The RTG further argued that for the determination of the impact of the
prices of the Thai imports on the Community industry the Commissionshould have considered the sharp decrease of the raw material prices in
Thailand.
(133) It is considered that the above argument is irrelevant for the analysis of
the cause of injury to the Community industry. Indeed, the cost ofproduction factors in any exporting country is relevant only to thedumping determinations. The important parameter for injury and
causation considerations is the price that the imported product
concerned is sold in the Community market.
5.3. Conclusion
(134) Given that no other new arguments were received regarding the cause
of the injury suffered by the Community industry, the conclusion thatdumped imports, taken in isolation, had caused injury to theCommunity industry, as stated in recital 99 of the provisional duty
Regulation, is hereby confirmed.
6.COMMUNITY INTEREST
6.1. Interest of the Community industry
(135) Since no comments were received regarding the above issues, the
findings on the interest of the Community industry cited in recital 101of the provisional duty Regulation are hereby confirmed.
6.2. Impact on users
(136) Following the publication of the provisional duty Regulation, a number
of Community users claimed that the imposition of anti-dumping
duties would have negative effects on their competitiveness on the
downstream products and would ultimately threaten their survival. Intheir opinion, the imposition of anti-dumping duties would triggerprice increases which users would need to reflect in downstream
products. This development would in turn trigger an increase in
imports of lower-priced downstream products from other thirdcountries and from the countries concerned by this investigation.
(137) In addition, Eurofibrefill reacted to the provisional duty Regulation
and argued that specific PSFNS were either not produced at all by the
Community industry, or not in sufficient quantities to cover the
Community demand. In their opinion, this situation was due to the factthat the Community industry mainly focused on the production ofPSFS. Therefore it would have to continue to source PSFNS from
abroad, despite the proposed imposition of anti-dumping duties.
(138) Eurofibrefill further argued that the impact of the proposed measures
on users should be also assessed taking into account the existinganti-dumping and anti-subsidy measures on imports from other
countries (e.g. from Taiwan). In their opinion, the Community industry
continuously asked for protection and that in the near future all sourcesof supply would be subject to anti-dumping or countervailingmeasures.
(139) In support of the claim of Eurofibrefill, two of its members provided
the Commission with letters addressed to producers included in the
Community industry showing that these producers were not able toprovide the requested types of PSF in the short term.
(140) It should be noted that certain of the above users who came forward
after the imposition of provisional duties either did not make
themselves known within the time limit set out in the Notice of
Initiation of the proceeding, or did not reply to the questionnaire sentby the Commission at that stage. Consequently, most of them could not
be considered as interested parties under Article 21(2) of the basic
Regulation and their views could not, normally, be taken into accountat the definitive stage of the proceeding.!B2000R1522 — EN — 15.07.2000 — 000.001 — 18
(141) In addition, as stated in recital 102 of the provisional duty Regulation,
the overall level of cooperation in the Community interest investi-gation was very low. The user companies who participated in theinvestigation only represented around 4 % of total consumption in the
Community market. It was therefore considered that at a broader level
no real concern about the impact of the imposition of anti-dumpingmeasures on PSF on their activities existed. In any event, it wasconsidered that no meaningful conclusions could be drawn from such
limited information.
(142) Regarding the claim by Eurofibrefill, that the Community industry
mainly focused on PSFS, it should be noted that, as already explained
above, the Community industry production and sales of PSFNS types
represented about 75 % of its total production during the IP . The claimtherefore that the Community industry focused on PSFS has not beenconfirmed by the investigation.
(143) As regards the availability of specific PSF types, it is recalled that
there are no or only minor technical difficulties in producing any typeof fibre. As far as the Community industry is concerned and as already
stated in recital 20, it was found that it could produce all types of PSF
without any significant additional investment. The important par-ameter influencing the decision to produce certain types was whetherthe price the user was ready to pay covered the costs of production and
allow a profit to be earned. As long as exporting producers practising
dumping were taking advantage of unfair trade practices and offeredPSF at low prices on the Community market, the Community industrywas not able and willing to compete and therefore did not produce
these types in the prevailing market circumstances. However, for the
future it could be expected that once a situation were reestablished inwhich the exporting producers carried out their exports at fair market
conditions, the Community industry would resume production of such
product types.
(144) In any event, the information available on the cost structure of the user
industry, the level of the proposed measures and the share between
dumped imports and the other sources of supply indicate that:
— PSF represents between 25 % and 45 % of the users total cost of
production of downstream products;
— the average anti-dumping duty is about 22 % for the countries
concerned;
— the share of dumped imports is 9 % of total consumption of PSF .
The proposed measures may thus have the impact of increasing the
cost of production of users by between 0,5 % to a maximum of 0,9 %.This likely maximum increase is considered to be relatively low whencompared to the positive impact of the proposed measures in restoring
effective competition on the Community market.
(145) This analysis on the impact of the proposed measures on users
therefore indicated that the imposition of anti-dumping measures was
not likely to trigger an increase in the import of cheap downstream
products into the Community. This conclusion was also reached in theabsence of any evidence from the users concerned substantiating theirclaim, e.g. that past measures on this product had led to such effects.
(146) Furthermore, regarding the impact of the existing measures on the cost
of production of the user industries, it should be noted that theanti-dumping measures in force on PSF against third countries are
already reflected in the cost information, used by the Commission in
the current Community interest investigation.
(147) As far as the countervailing measures imposed in the framework of the
parallel anti-subsidy proceeding are concerned, it has been established
that their impact may cause an increase of between 0,1 and 0,16 % on
the cost of production of the user companies. Consequently the totalimpact of the proposed anti-dumping and countervailing measures
would lead to a possible increase between 0,6 and 1,06 % of the cost of
production of the overall users industries.
(148) In this context, it should be recalled that the share of the imports from
countries concerned by all anti-dumping proceedings, including the
present proceeding and the parallel anti-subsidy proceeding, repre-
sented about 37 % of the total imports to the Community market!B2000R1522 — EN — 15.07.2000 — 000.001 — 19
during the IP . It therefore follows that there are other significant
sources of supply, to which no anti-dumping or countervailing dutiesapply.
(149) As the examination of the above arguments submitted by the user
companies does not lead to new conclusions, the considerations ofrecital 105 of the provisional duty Regulation on the impact of the
proposed measures to the users is hereby confirmed.
6.3. Conclusion
(150) The new arguments received regarding the determination of the
Community interest, are not considered to be such as to reverse theconclusion that no compelling reasons exist against the imposition of
anti-dumping measures. The provisional findings are therefore
confirmed.
7.DEFINITIVE DUTY
(151) In view of the conclusions reached regarding dumping, injury,
causation and Community interest, it is considered that definitiveanti-dumping measures should be taken in order to prevent further
injury being caused to the Community industry by dumped imports
from Australia, Indonesia and Thailand.
7.1. Injury elimination level
(152) As explained in recital 108 of the provisional duty Regulation, a
non-injurious level of prices was determined which would cover the
Community industry’ s cost of production and a reasonable profit which
would be obtained in the absence of dumped imports from thecountries concerned.
(153) The RTG and some exporting producers argued that while it was
mentioned in the provisional duty Regulation that the 6,7 % profit-ability achieved by the Community industry during the IP was still
inadequate in the present proceeding, it was considered reasonable in
previous proceedings (
1) involving PSF and PTY (polyester textured
filament yarn). On this basis they questioned the level of the required
profit margin of 10 % in the present proceeding which in their opinion
the Commission did not justify.
(154) Other exporting producers argued that the Commission’ s justification
in the provisional duty Regulation that the required profit shouldensure the Community industry’ s long-term viability was not validaccording to the latest jurisprudence from the Court of First Instance
on this issue.
(155) As far as the required profit is concerned, it should be noted that the
Commission indicated in recital 79 of the provisional duty Regulation
that a margin of 10 % should be considered as a minimum that wouldensure the viability of the industry. This statement should be seen inthe light of the contents of recital 101 of the provisional duty
Regulation which indicates that the Community industry suffered from
low-priced dumped imports from various countries and incurred lossesfor a decade. In this context, the profit achieved by the Communityindustry before the appearance of dumped imports from Australia,
Indonesia and Thailand is not a reliable basis on which to determine
such profit.
(156) In addition, it must be noted that, as acknowledged by the exporting
producers themselves, the PTY industry is completely different fromthe PSF industry. Therefore, it was considered that the profit for PTY
is not relevant for establishing the profit for PSF .
(157) Furthermore, it is considered that the level of profit deemed reasonable
for the Community industry in 1994 should not necessarily determine
the margin to be used more than four years later. Firstly, because theCommunity industry continued to incur financial losses after 1994.Secondly because the reasonable profit in 1994 was determined having
regard to the long term needs in investments at that time whereas in the
present case, due account was taken of the long term losses incurred bythe Community industry and, as pointed out by some exporting!B
(1) PSF from Belarus, PTY (Polyester textured filament yarn) from Indonesia and
Thailand.2000R1522 — EN — 15.07.2000 — 000.001 — 20
producers, the level of profit that could be achieved in the absence of
dumped imports. In any event, however, even by employing thesuggested profit margin of 6 %, the level of the proposed measureswould not change as these measures would still be based on the
dumping margins.
(158) Finally, it should be underlined that the above exporting producers did
not provide any evidence showing that the approach of theCommission on the reasonable level of profit was not correct and
they did not make any relevant analysis demonstrating what such
margin should be.
(159) Consequently, based on the foregoing, the contents of recital 108 of the
provisional duty Regulation are hereby confirmed.
7.2. Form and level of the duty
(160) In accordance with Article 9(4) of the basic Regulation the
anti-dumping duty rates correspond to the dumping margins, as the
injury margins are found to be higher for all exporters in the countriesconcerned.
(161) However, with regard to the parallel anti-subsidy proceeding, in
accordance with Article 24(1) of Regulation (EC) No 2026/97 (
1)
(hereinafter ‘the basic anti-subsidy Regulation’) and Article 14(1) ofthe basic Regulation, no product shall be subject to both anti-dumpingand countervailing duties for the purposes of dealing with one and the
same situation arising from dumping and from export subsidization. In
the present investigation, it was found that a definitive anti-dumpingduty should be imposed on imports of the product concernedoriginating in Australia, Indonesia and Thailand and therefore, it is
necessary to determine whether, and to what extent, the subsidy and
the dumping margins arise from the same situation.
(162) In the parallel anti-subsidy proceeding it was found that in, inter alia ,
Thailand (all companies) and Indonesia (only cooperating companies),
the level of subsidisation was below the de minimis level and therefore,
no countervailing duty was imposed.
(163) With regard to Australia, a definitive countervailing duty correspond-
ing to the amount of subsidy, which was found to be lower than the
injury margin, was proposed in accordance with Article 15(1) of the
basic anti-subsidy Regulation. All of the subsidy schemes investigatedin Australia constituted export subsidies within the meaning of Article3(4)(a) of the basic anti-subsidy Regulation. As such, the subsidies
could only affect the export price of the Australian exporting producer,
thus leading to an increased margin of dumping. In other words, thedefinitive dumping margin established for the sole cooperating
Australian producer is partly due to the existence of export subsidies.
In these circumstances, it is not considered appropriate to impose bothcountervailing and anti-dumping duties to the full extent of therelevant subsidy and dumping margins definitively established.
Therefore, the definitive anti-dumping duty should be adjusted to
reflect the actual dumping margin remaining after the imposition of thedefinitive countervailing duty offsetting the effect of the exportsubsidies.
(164) For the non-cooperating Indonesian exporting producers, a definitive
countervailing duty corresponding to the amount of subsidy, whichwas found to be lower than the injury margin, was proposed inaccordance with Article 15(1) of the basic anti-subsidy Regulation. It
was determined that half of the subsidy schemes in Indonesia
constituted export subsidies within the meaning of Article 3(4)(a) ofthe basic anti-subsidy Regulation. As such, the subsidies could onlyaffect the export price of the Indonesian non-cooperating exporting
producers, thus leading to an increased margin of dumping. In other
words, the definitive dumping margin established for these non-cooperating Indonesian exporting producers is partly due to the
existence of export subsidies. In these circumstances, it is not
considered appropriate to impose both countervailing and anti-dump-ing duties to the full extent of the relevant subsidy and dumpingmargins definitively established. Therefore, the definitive anti-dump-
ing duty for the non-cooperating Indonesian exporting producers!B
(1) OJ L 288, 21.10.1997, p. 1.2000R1522 — EN — 15.07.2000 — 000.001 — 21
should be adjusted to reflect the actual dumping margin remaining
after the imposition of the definitive countervailing duty offsetting theeffect of the export subsidies.
(165) On the basis of the above, the definitive duty rates, expressed as a
percentage of the cif Community border price, customs duty unpaid,
taking into account the results of the anti-subsidy proceeding, are asfollows:
Country CompanyRate of anti-dumping
duty
Australia All companies 12,0 %
Indonesia P .T. Indorama Synthetics Tbk 8,4 %
P .T. Panasia Indosyntec 14,8 %
P .T. GT Petrochem Industries Tbk 14,0 %P .T. Susilia Indah Synthetic Fiber Industries 14,0 %P .T. Teijin Indonesia Fiber Corporation Tbk 14,0 %
All other companies 15,8 %
Thailand Indo Poly (Thailand) Ltd. 15,5 %
Teijin Polyester (Thailand) Ltd. 26,9 %
Teijin (Thailand) Ltd. 26,9 %
All other companies 27,7 %
(166) The individual company anti-dumping duty rates specified in this
Regulation were established on the basis of the findings of the presentinvestigation. Therefore, they reflect the situation found during thatinvestigation with respect to these companies. These duty rates (as
opposed to the country-wide duty applicable to ‘all other companies’)
are thus exclusively applicable to imports of products originating in thecountry concerned and produced by the companies and thus by thespecific legal entities mentioned. Imported products produced by any
other company not specifically mentioned in the operative part of this
Regulation with its name and address, including entities related tothose specifically mentioned, cannot benefit from these rates and shall
be subject to the duty rate applicable to ‘all other companies’.
(167) Any claim requesting the application of these individual company
anti-dumping duty rates (e.g. following a change in the name of theentity or following the setting up of new production or sales entities)
should be addressed to the Commission (
1) forthwith with all relevant
information, in particular any modification in the company’ s activitieslinked to production, domestic and export sales associated with e.g.that name change or that change in the production and sales entities.
The Commission, if appropriate, will, after consultation of the
Advisory Committee, amend the Regulation accordingly by updatingthe list of companies benefiting from individual duty rates.
(168) Since sampling has been used in the investigation of dumping in
Indonesia, a new exporters’ review pursuant to Article 11(4) of the
basic Regulation with the objective of determining individual dumpingmargins cannot be initiated in this proceeding as far as it concerns
Indonesia. However, in order to ensure equal treatment for any genuine
new Indonesian exporting producer and the cooperating companies notincluded in the sample for this country, it is considered that provisionshould be made for the weighted average duty imposed on the latter
companies to be applied to any new Indonesian exporting producer
who would otherwise be entitled to a review pursuant to Article 11(4)of the basic Regulation.!B
(1) European Commission, Directorate-General Trade, Directorade C, DM 24-8/38,
Rue de la Loi/Wetstraat 200, B-1049 Brussels/Belgium2000R1522 — EN — 15.07.2000 — 000.001 — 22
8.COLLECTION OF THE PROVISIONAL DUTY
(169) In view of the magnitude of the dumping margins found for the
exporting producers, and in light of the seriousness of the injurycaused to the Community industry, it is considered necessary that the
amounts secured by way of provisional anti-dumping duty under the
provisional duty regulation be definitively collected to the extent of theamount of definitive duties imposed if this amount is equal or lower
than the amount of the provisional duty. Otherwise, only the amount of
the provisional duty should be definitively collected,
HAS ADOPTED THIS REGULATION:
Article 1
1. A definitive anti-dumping duty is hereby imposed on imports of synthetic
staple fibres of polyesters, not carded, combed or otherwise processed for
spinning, falling within CN code 5503 20 00 and originating in Australia,Indonesia and Thailand.
2. The rate of the definitive duty applicable to the net free-at-Community-
frontier price, before duty, for products produced by the companies indicated
shall be as follows:
Country Company Rate of dutyTARIC additional
code
Australia All companies 12,0 % —
Indonesia P .T. Indorama Synthetics Tbk,
"C1Graha Irama, 17thfloor,
Jl. H.R. Rasuna Said Blok Z-1,
3Kav. 1-2, P .O. Box 3375
Jakarta 12950, Indonesia8,4 % A051
P .T. Panasia Indosyntec
Jl. Garuda 153/74,Bandung 40184, Indonesia14,8 % A052
P .T. GT Petrochem Industries Tbk,
Exim Melati Building - 9
thfloor,
Jl. M.H. Thamrin Kav. 8-9,
Jakarta 10230, Indonesia14,0 % A053
P .T. Susilia Indah Synthetic Fiber Industries,
Jl. Kh. Zainul Arifin Kompleks
Ketapang IndahBlok B 1 No.: 23,Jakarta 11140, Indonesia14,0 % A054
P .T. Teijin Indonesia Fiber Corporation Tbk,
5
thfloor Mid Plaza 1,
Jl Jend. Sudirman Kav. 10-11,
Jakarta 10220, Indonesia14,0 % A055
All other companies 15,8 % A999
Thailand Indo Poly (Thailand) Ltd.
35/8 MOO 4, Tambol Khunkaew
Amphur Nakhornchaisri, Nakhornprathom 73120Thailand15,5 % A056
Teijin Polyester (Thailand) Ltd.
19
thfloor, Ploenchit Tower
898 Ploenchit road, Lumpinee, Patumwan
Bangkok 10330, Thailand26,9 % A155
Teijin (Thailand) Ltd.,
19thfloor, Ploenchit Tower
898 Ploenchit road, Lumpinee, PatumwanBangkok 10330, Thailand26,9 % A155
All other companies 27,7 % A999!
B2000R1522 — EN — 15.07.2000 — 000.001 — 23
3. Unless otherwise specified, the provisions in force concerning customs
duties shall apply.
Article 2
Where any new exporting producer in Indonesia provides sufficient evidence
to the Commission that
— it did not export to the Community the products described in Article 1(1)
during the IP ,
— it is not related to any of the exporters or producers in Indonesia which
are subject to the anti-dumping measures imposed by this Regulation,
— it has actually exported to the Community the products concerned after
the IP on which the measures are based, or it has entered into anirrevocable contractual obligation to export a significant quantity to the
Community,
the Council, acting by simple majority on a proposal submitted by the
Commission after consulting the Advisory Committee, may amend Article
1(2) by adding the new exporting producer to the companies subject to theweighted average duty rate listed in that Article.
Article 3
The amounts secured by way of the provisional anti-dumping duty on imports
originating in Australia, Indonesia and Thailand under the provisional dutyRegulation shall be collected at the rate of the duty definitively imposed by
this Regulation. Amounts secured in excess of the rate of definitive
anti-dumping duty shall be released. In cases where the rate of the definitiveduty imposed is higher than the rate of the provisional duty, only the amounts
secured at the level of the provisional duty should be definitively collected.
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.!B2000R1522 — EN — 15.07.2000 — 000.001 — 24