1988R3905 — EN — 03.10.1991 — 001.001 — 1
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►B COUNCIL REGULATION (EEC)No 3905/88
of 12 December 1988
imposing a definitive anti-dumping duty on imports of polyester yarn originating in Mexico, South
Korea, Taiwan and Turkey
(OJ L 347, 16.12.1988, p. 10)
Amended by:
Official Journal
No page date
►M1Council Regulation (EEC) No 2899/91 of 1 October 1991 L 275 21 2.10.1991
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COUNCIL REGULATION (EEC)No 3905/88
of 12 December 1988
imposing a definitive anti-dumping duty on imports of polyester
yarn originating in Mexico, South Korea, Taiwan and Turkey
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European EconomicCommunity,
Having regard to Council Regulation (EEC) No 2423/88 of 11 July
1988 on protection against dumped or subsidized imports from coun-tries not members of the European Economic Community (
1), and in
particular Article 12 thereof,
Having informed the EEC-Turkey Association Council pursuant to
Article 47 (2) of the Additional Protocol to the Agreement establishingan Association between the European Economic Community andTurkey (
2), and in the absence of a decision by the said Association
Council,
Having regard to the proposal from the Commission, submitted after
consultations within the Advisory Committee set up under Regulation(EEC) No 2423/88,
Whereas:
A.PROVISIONAL MEASURES
(1)Under Regulation (EEC) No 1695/88 (3), as amended by Regula-
tion (EEC) No 2871/88 (4), the Commission imposed a provi-
sional anti-dumping duty on imports of partially oriented poly-ester yarn (POY) and textured polyester yarn (PTY) originatingin Mexico, South Korea, Taiwan and Turkey. POY is a feederyarn used in the main for the production of PTY which, in turn,is used to produce fabrics of polyester or of cotton and polyester.The duty was extended for a period not exceeding two months byRegulation (EEC) No 3171/88 (
5).
B.SUBSEQUENT PROCEDURE
(2)Following the imposition of the provisional anti-dumping duty,
Community producers and a number of exporters of the productin question applied to be heard by the Commission and hearingswere granted.
Community producers and some exporters also expressed their
views on the Regulation imposing the provisional duty in writing.
Certain exporters asked the Commission to inform them of the
main facts and consideration on the basis of which the Commis-sion proposed to recommend definitive measures. The Commis-sion complied with these requests.
(1) OJ No L 209, 2. 8. 1988, p. 1.
(2) OJ No L 293, 29. 12. 1972, p. 3.
(3) OJ No L 151, 17. 6. 1988, p. 39.
(4) OJ No L 257, 17. 9. 1988, p. 24.
(5) OJ No L 282, 15. 10. 1988, p. 28.
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C.DUMPING
1.Normal value
(a)Korea, Taiwan and Mexico
(3)In general, normal value was calculated definitively by the
method used for the provisional calculation of the value, namelyon the basis of the domestic prices charged by the producerswhich exported to the Community and had supplied sufficientinformation. It was established on a monthly basis and by type ofproduct.
During the months, where there were no sales on the internal
market of a certain type of exported product, the weightedaverage of domestic sales for the other months was used.
Where there were no domestic sales of a type of product exported
to the Community, or where, if they existed, they were insuffi-cient, the internal market price of the most similar type ofproduct or alternatively the constructed value was used. Where asubstantial volume of domestic sales of a given type of productwas made at a loss, constructed value was used as normal value.Constructed value was calculated by adding together the cost ofproduction and a reasonable profit margin established on thebasis of the profits made on the domestic sales of the productconcerned, POY or PTY, or on total sales of polyester yarn bythe exporting company concerned.
In the case of one Korean exporter and some Mexican exporters,
normal value was established, at their request, on the basis ofdomestic prices net of all discounts and rebates directly linked tothe sales under consideration, pursuant to Article 2 (3) (a) ofRegulation (EEC) No 2423/88, after evidence, deemed to beconvincing, had been adduced.
Also accepted was the request of a Taiwanese exporter that the
constructed value be established on the basis of the profit marginon POY sales alone rather than all PTY sales, a margin deter-mined with reference to another exporter in this case.
(b)Turkey
(4)Normal value was calculated definitively using the method set
out in the first and second paragraphs of recital 3 of this Regula-tion.
However, in the case of POY, the normal value of which had
been calculated on the basis of the constructed value, oneexporter challenged the amount of the profit margin establishedin respect of the profits made on all polyester yarn sales, arguingthat the only acceptable margin was that calculated in respect ofprofits on POY sales. Since the Commission was unable to find aprofit margin relating only to POY in the accounts of any of theTurkish companies involved in the proceeding, the Councilagreed with the Commission that the method used to calculate theprovisional measures should stand.
2.Export prices
(5)In general, export prices were established on the basis of the
prices actually paid or payable for products sold for export to theCommunity.
Where products were exported through subsidiaries established in
the Community, export prices were calculated on the basis of theprice at which they were resold to the first independent buyer,duly adjusted to take account of all costs incurred between importand resale, including, where appropriate, transport, insurance andcustoms duties and a margin considered reasonable to covergeneral expenses and profit, given the profit margins of indepen-dent importers of the product in question.
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Adjustments were made to the exchange rates for prices of
exports to the Community effected by Taiwanese exporters, theevidence submitted having been found satisfactory.
An adjustment was made to the exchange rate used to calculate
the export price of a Mexican producer in response to a requestaccompanied by sufficient supporting evidence.
3.Comparison
(6)The normal monthly value for each type of product was generally
compared, transaction by transaction, with the export prices ofthe corresponding type of product at the ex works stage. Anyadjustments provisionally allowed according to the circumstancesto take account of differences directly affecting price compar-ability pursuant to Article 2 (10) (c) and (d) of Regulation (EEC)No 2423/88 were maintained on the terms set out in recitals 10,14, 18 and 22 of Regulation 1695/88.
(a)Korea
(7)One exporter’s renewed request concerning differences in selling
conditions, based on Article 2 (10) (c) (v) of Regulation (EEC)No 2423/88, was not supported by sufficient evidence as to theirdirect link with the sales in question, and was thus rejected.
(b)Mexico
(8)An adjustment to take account of credit costs pursuant to Article
2 (10) (c) (iii) of Regulation (EEC) No 2423/88, has been takeninto consideration following a request accompanied bysupporting evidence judged to be satisfactory.
In the case of one Mexican exporter, to whom an adjustment to
the export prices had been accorded in respect of ‘bank charges'for the provisional calculation of the dumping margin, additionalinformation showing that these expenses were not in fact bankcharges led the Commission to reconsider the adjustment.
Requests for additional adjustments in respect of commissions
paid to salesmen and of certain credit and domestic freight costswere also refused on the grounds that the evidence adduced waseither in flagrant contradiction with the findings of the invest-igation, of insufficient.
(c)Taiwan
(9)A further request was made for adjustment in respect of hedging
of exchange rates but no new arguments were brought forward.The Council therefore agrees with the Commission’s conclusionsrejecting this request in the third paragraph of recital 18 ofRegulation (EEC) No 1695/88.
(d)Turkey
(10)A renewed request from one exporter for an adjustment in respect
of the refinancing by international banks of sums owing to himabroad, when he had already been accorded adjustments inrespect of credit costs for export sales, was not accepted. Therequest, made under Article 2 (10) (c) (iii) of Regulation (EEC)No 2423/88, was rejected on the grounds that the Article did notprovide for adjustment on such grounds.
Nor was any adjustment accorded pursuant to Article 2 (10) (b)
of Regulation (EEC) No 2423/88 concerning the refunding ofimport charges to which a product exported to the Community issubject because the firms concerned had either made their requesttoo late of not adduced satisfactory evidence.
4.Dumping margins
(11)The dumping margin calculated for each exporter is equal to the
difference between normal value and the price on export to theCommunity, duly adjusted.
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The weighted average dumping margins for each of the exporters
concerned, adjusted to free-at-Community-frontier prices, are asfollows:
(a)Korea
— Kohap Ltd, Seoul PTY 8,13 %
— Kolon Industries Inc.,
SeoulPTY 5,71 %
POY 0,02 %
— Sam Yang Co. Ltd,
SeoulPTY 3,38 %
— Tong Yang Polyester
Co. Ltd, SeoulPTY 4,09 %
(b)Mexico
— Celanese Mexicana SA,
Mexico CityPTY 15,85 %
POY 4,43 %
— Fibras Sinteticas SA de
C.V., Mexico CityPTY 26,74 %
— Fibras Quimicas SA,
MonterreyPTY 5,79 %
— Nylon de Mexico SA,
MonterreyPOY 15,80 %
— Kimex SA, Mexico City PTY 18,72 %
(c)Taiwan
— Chung Shing Textile Co.
Ltd, T’aipeiPTY 1,67 %
— Far Eastern Textile Ltd,
T’aipeiPTY 6,21 %
POY 0,09 %
— Nan Ya Plastics Corp.,
T’aipeiPTY 4,92 %
POY 0,52 %
— Shin Kong Synthetic
Fibres Corp., T’aipeiPTY 4,96 %
POY 22,11 %
— Tuntex Distinct Corp.,
T’aipeiPTY 0,31 %
POY 0,00 %
(d)Turkey
— Nergis AS, Bursa PTY 38,50 %
— Polylen AS, Bursa PTY 27,60 %— Sasa Artificial &
Synthetic Fibres Inc.,AdanaPTY 11,13 %
POY 2,67 %
— Sifas Sentetik Iplic
Fabrikalari ASBursaPTY 17,34 %
— Sönmez Filament AS,
BursaPTY 13,18 %
D.INJURY
(12)In Regulation (EEC) No 1695/88 the Commission described the
effect of imports at dumping prices on Community industry,notably as regards volume, prices, market share and profitability.It explained that to do this, imports from the various countriesinvolved in the proceeding had to be aggregated.
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On the point it was claimed that the figures given in recital 26 of
the said Regulation were not correct in that they did not indicatethe use of POY in the production of PTY.
Since no data were available to identify the proportion of POY in
Community production and consumption, the Commission usedproduction and consumption figures drawn from data relating toPTY only; the data took into account the internal transfer of POYused to make PTY.
In these circumstance, and with no new evidence forthcoming,
the Council upholds the findings set out in recitals 24 to 32 ofRegulation (EEC) No 1695/88.
The Commission considered whether Community producers
having links with Mexican exporters should be excluded whenestablishing injury, pursuant to Article 4 (5) of Regulation (EEC)No 2423/88.
Since the purpose of this Article is to exclude Community produ-
cers that might complain about companies with whom they havelinks, the Council notes that none of the Community producersimport polyester yarn from the exporting companies concerned,that the latter act as autonomous economic entities, that thevolume of exports to the Community is small, that one of theCommunity producers has only indirect links with an exportingcompany and that the Community producers concerned are notprotected against the unfair practices of other exporting compa-nies.
For all of these reasons, and in view of the fact that the links
between certain Community producers and exporting companiesshould not lead to these producers being deprived of protectionagainst unfair practices, the Council finds that the Communityproducers concerned should not be excluded from the proceeding.
1.Product comparability
(13)Exporters challenged the validity of the comparison made
between the polyester yarn produced by their companies andthose of Community producers, arguing that they were notsimilar products, notably as regards quality, that they were notused for the same purposes and that they were not interchange-able with Community products. These arguments were notaccepted since the Commission believes that the requirement thata product be similar to an imported product should not be inter-preted narrowly, and that only fundamental differences in qualityor use are grounds for considering that a product is not similar toanother.
In this case the physical characteristics of the products are very
similar and the use made of lower-quality polyester yarn is notwholly different from the use made of those of supposedly betterquality.
The Council therefore considers that the alleged differences in
quality and use are not sufficient to justify a distinction beingmade between these products.
2.Causality
(14)In recital 33 of Regulation (EEC) No 1695/88 the Commission
established a causal link between the injury suffered byCommunity producers and the imports sold at dumping prices.
However, a number of exporters argued that their polyester yarn
exports to the Community were either small or diminishing involume, and so could not have contributed to the injury.
Under Regulation (EEC) No 2423/88 injury may still be caused
even if the volume of each individual exporter is very small. Thisargument does not therefore justify the exclusion of these expor-ters from the proceeding.
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In these circumstances, and in the absence of any fresh evidence
in respect of the arguments set out in recital 33 of Regulation(EEC) No 1695/88, the Council confirms the findings andconclusions presented by the Commission in that recital.
E.QUANTITATIVE RESTRICTIONS ANDANTI-DUMPING
MEASURES
(15)As regards the existence of quantitative restriction on imports
into Spain and Italy of polyester yarn originating in Korea, andon imports into Spain of polyester yarn originating in Taiwan, itwas argued that the imposition of an anti-dumping duty on poly-ester yarn imports from these countries on top of the quantitativerestrictions was incompatible with Article XIX of the GATT andparagraph 6 of the Fourth Multifibre Arrangement (MFA IV).
The Council finds that, contrary to what was argued, neither
Community law nor international rules — notably the MFA —prohibit the imposition of anti-dumping duties, customs duties orany other measure affecting imports subject to quantitativerestrictions, provided it is established that injury has been causeddespite the restrictions.
As to the wisdom of applying such measures in this case, the
Council notes that as far as the overall Community industry isconcerned, even if the volume of polyester yarn imports ofKorean and Taiwanese origin is small, the level of undercuttinginvolved is as much as 30 % in the case of polyester yarn fromKorea and 38 % in that of polyester yarn from Taiwan.
In these circumstances, the Council finds that the Community
industry has been exposed to unfair competition from these coun-tries.
The Council notes that substantial undercutting has occurred with
regard to imports into Spain and Italy: up to 35 % in Italy and 41% in Spain in the case of Korean polyester yarn, and 33 % inSpain in the case of Taiwanese polyester yarn. The quantitativerestrictions introduced for these countries have therefore notprotected them from unfair price competition nor preventedinjury. It should also be pointed out that these countries’ produ-cers suffered serious financial losses in the reference period.
The Council therefore believes that the imposition of anti-
dumping mesures on imports from Korea and Taiwan is neces-sary.
F.COMMUNITY INTEREST
(16)Certain importers and users have argued that the Community
producers behaved as if they were members of a cartel, in so faras high prices were charged, difficulties in obtaining supplieswere noted, and a certain segmentation of the Community fibresmarket was set up. However, no element of proof to supportthese arguments has been advanced which would allow theCommission to open an investigation under the Communitycompetition rules.
In these circumstances, in view of the serious difficulties facing
the Community industry concerned, the Commission concludedthat it was in the Community interest to take appropriate steps toremove the injury caused to Community polyester yan producers.These measures, which would have fairly negligible effects onthe production costs of the user industry and no seriousconsequences for consumers, should take the form of a definitiveanti-dumping duty.
The Council therefore confirms that it is in the Community
interest to adopt definitive anti-dumping measures in respect ofimports originating in the four exporting countries named in thisproceeding.
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G.DEFINITIVE DUTY
(17)Arguments were advanced concerning the way that differences in
the production of POY and PTY had been taken into account. Itis confirmed that the Commission has, as far as possible, takenthese differences into account, notably as regards productioncosts, price comparison and the calculation of the injurythreshold.
The Council confirms the Commission’s conclusions concerning
both the method used for the establishment of the duty to beapplied and the form of the duty, as described in recitals 35 and36 of Regulation (EEC) No 1695/88.
H.COLLECTION OF THE PROVISIONAL DUTY
(18)In view of the dumping margins recorded and the injury caused,
the Council believes that the amounts secured by the provisionalanti-dumping duty should be definitively collected, either in theirentirety or up to the maximum duty definitively imposed if thedefinitive duty is lower than the provisional duty. The balanceremaining after the definitive duties have been covered shall bereleased,
HAS ADOPTED THIS REGULATION:
Article 1
1. A definitive anti-dumping duty is hereby imposed on imports of
non-textured, partially oriented polyester yarn (POY) falling within CNcode 5402 42 00, originating in ►
M1 ◄Taiwan or
Turkey.
2. The amount of the duty, calculated on the basis of the free-at-
Community-frontier price of the product, not cleared through customs,shall be:
▼
M1
▼B
— 8,7 % for POY originating in Taiwan, excluding yarn produced and
sold for export to the Community by the following firms, whichshall not be subject to duty:
Far Eastern Textile Ltd, T’aipei,Nan Ya Plastics Corp., T’aipei,Tuntex Distinct Corp., T’aipei;
— 2,7 % for POY originating in Turkey.
3. The provisions in force concerning customs duties shall apply.
Article 2
1. A definitive anti-dumping duty is hereby imposed on imports of
textured polyester yarn (PTY) falling within CN codes 5402 33 10 and5402 33 90, originating in ►
M1 ◄South Korea, Taiwan
or Turkey.
2. The amount of the duty, calculated on the basis of the free-at-
Community-frontier price of the product, not cleared through customs,shall be:
— 8,1 % for PTY originating in South Korea. The following duties
shall be applicable to PTY produced and sold for export to theCommunity by the companies listed below:
Kohap Ltd, Seoul 8,1 %,
Kolon Industries Inc., Seoul 5,7 %,Sam Yang Co. Ltd, Seoul 3,4 %,
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Tong Yang Polyester Co. Ltd,
Seoul4,1 %;
▼M1
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— 6,2 % for PTY originating in Taiwan. The following duties shall be
applicable to PTY produced and sold for export to the Communityby the companies listed below:
Chung Shing Textile Co. Ltd,
T’aipei1,7 %,
Nan Ya Plastics Corp., T’aipei 4,9 %,
Shinkong Synthetic Fibres Corp.,
T’aipei5,0 %.
Tuntex Distinct Corp., T’aipei, shall be exempted from the duty referred
to above;
— 13,2 % for PTY originating in Turkey. The following duties shall be
applicable to PTY produced and sold for export to the Communityby the companies listed below:
Sasa Artificial and Synthetic Fibres
Inc., Adana11,1 %,
Nergis AS, Bursa 8,6 %,
Sifas Sentetik Iplik Fabrikalari AS,
Bursa7,2 %,
Polylen AS, Bursa 7,2 %.
3. The provisions in force concerning customs duties shall apply.
Article 3
The amounts secured by way of provisional anti-dumping duty under
Regulation (EEC) No 1695/88 shall be definitively collected, either intheir entirety or up to an amount not exceeding the rates specified inthis Regulation. The balance of these secured amounts after coverage ofthe definitive duties shall be released.
Article 4
This Regulation shall enter into force on the day following its publica-
tion in theOfficial Journal of the European Communities .
This Regulation shall be binding in its entirety and directly applicable in
all Member States.