COMMISSION IMPLEMENTING REGULATION (EU) 2021/342

of 25 February 2021

reimposing a definitive anti-dumping duty on imports of certain prepared or preserved sweetcorn in kernels originating in the Kingdom of Thailand, in so far as it concerns River Kwai International Food Industry Co., Ltd, following the reopening of the interim review pursuant to Article 11(3) of Regulation (EU) 2016/1036 of the European Parliament and of the Council

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (1) (‘the basic Regulation’), and in particular Article 9(4), 11(2), 11(3) and 14(1) thereof,

Whereas:

1. PROCEDURE

1.1. Previous investigations and measures in force

(1) By Implementing Regulation (EU) No 875/2013 (2), the Council reimposed the definitive anti-dumping measures on imports of certain prepared or preserved sweetcorn in kernels originating in Thailand following an expiry review.

(2) Following a request lodged by River Kwai International Food Industry Co., Ltd (‘RK’), an exporting producer from Thailand, on 14 February 2013, the Commission announced the initiation of a partial interim review, pursuant to Article 11(3) of the basic Regulation, limited in scope to an examination of dumping as far as the applicant was concerned.

(3) In the course of the investigation, the Commission found that the circumstances, based on which the measures in force were imposed, had changed and that these changes were of a lasting nature.

(4) In particular, the Commission found that the changed circumstances related to changes in the RK’s product range. Those changes have a direct impact on the production costs. In light of the results of the investigation, the Commission considered it appropriate to amend the anti-dumping duty applicable to RK’s imports of the product under review (3).

(5) On 24 March 2014, the Council adopted Implementing Regulation (EU) No 307/2014 (4) (‘the 2014 Regulation’) amending Implementing Regulation (EU) No 875/2013 imposing a definitive anti-dumping duty on imports of certain prepared or preserved sweetcorn in kernels originating in Thailand following an interim review pursuant to Article 11(3) of Council Regulation (EC) No 1225/2009 (5).

(6) The 2014 Regulation reduced the anti-dumping duty on imports of certain prepared or preserved sweetcorn in kernels originating in Thailand, applicable to RK, from 12,8 % to 3,6 %.

(7) After the reopening of this investigation, the duration of the measures was extended by Commission Implementing Regulation (EU) 2019/1996 (6) (‘the 2019 expiry review Regulation’), imposing a definitive anti-dumping duty on imports of certain prepared or preserved sweetcorn in kernels originating in the Kingdom of Thailand following an expiry review pursuant to Article 11(2) of the basic Regulation. That is the currently applicable Regulation with respect to RK and other exporting producers.

1.2. The Judgments of the General Court and the Court of Justice of the European Union

(8) On 18 June 2014, the Association européenne des transformateurs de maïs doux (‘AETMD’) lodged an application before the General Court of the European Union (‘the General Court’) seeking the annulment of the 2014 Regulation.

(9) In its judgment of 14 December 2017 (‘the judgment of the General Court’) (7), the General Court annulled the 2014 Regulation.

(10) On 23 February 2018, RK lodged an appeal seeking to have the judgment of the General Court set aside.

(11) In its judgment of 28 March 2019, the Court of Justice of the European Union (‘the ECJ’) dismissed the appeal lodged by RK as unfounded and confirmed the judgment of the General Court (‘the ECJ judgment’) (8).

(12) The ECJ upheld the finding of the General Court that the procedural rights of AETMD had been breached in relation to its request for disclosure of information relating to the possibility of incorrect allocation of costs between RK and its related entity AgriFresh Co., Ltd. (‘AgriFresh’); the allocation of costs being one of the possible causes of the lowering of the production costs alleged by RK in support of its request for an interim review. The General Court held that in that respect, during the administrative procedure, AETMD had not received disclosure that enabled it effectively, to make known its point of view.

2. IMPLEMENTATION OF THE COURT JUDGMENTS

(13) In accordance with Article 266 of the Treaty on the Functioning of the European Union (‘TFEU’), the Union’s institutions are obliged to comply with the Court of Justice judgments. In case of an annulment of an act adopted by the Union institutions in the context of an administrative procedure, such as the anti-dumping investigation in this case, compliance with the judgment consists in the replacement of the annulled act by a new act, in which the illegality identified by the Court is eliminated (9).

(14) According to the case-law of the Court of Justice, the procedure for replacing an annulled act may be resumed at the very point at which the illegality occurred (10). That implies, in particular, that in a situation where an act concluding an administrative procedure is annulled, that annulment does not necessarily affect the preparatory acts, such as the initiation of the anti-dumping procedure. Accordingly, in complying with the judgment, the Commission has the possibility to remedy the aspects of the proceeding, which led to the annulment, while leaving unchanged those parts, which are not affected by the judgment (11).

(15) The annulment of the 2014 Regulation was due to the non-adherence to the rights of defence during one step of the administrative proceeding at issue, namely the lack of disclosure of certain information to AETMD regarding RK’s restructuring and the impact of that restructuring on the assessment of both the lasting nature of the changes of circumstances relied on and the calculation of the dumping margin (12).

(16) Therefore, pursuant to the Court judgments, the possibility of incorrect allocation of costs between RK and AgriFresh, raised by AETMD during the administrative procedure, and which constituted – beside rationalisation of RK’s activity – one of the possible causes of the lowering of the production costs, should be examined by reopening the investigation in full respect of AETMD’s rights of defence as observed by the EU courts. By contrast, findings which were not contested by the Applicants or which were rejected or not examined by the General Court (‘undisputed or confirmed findings’), remain valid. Those findings are described and assessed in the 2014 Regulation. In relation to those undisputed or confirmed findings, the Commission makes reference to the text of the 2014 Regulation (13), as published in the Official Journal of the European Union (14).

(17) In order to implement the Court judgments, the Commission published a notice (15) reopening the anti-dumping investigation concerning imports of certain prepared or preserved sweetcorn in kernels originating in Thailand, that led to the adoption of the 2014 Regulation, in so far as it concerned RK.

(18) Interested parties were informed of the reopening of the anti-dumping investigation through the publication of a Notice in the Official Journal of the European Union.

(19) The Commission officially advised RK, the representatives of the exporting country and AETMD of the partial reopening of the investigation.

(20) Interested parties were given the opportunity to make their views known in writing and to request a hearing within the time limit set out in the notice.

2.1. Procedural steps for the implementation of the Court judgments

(21) Following the reopening, the Commission sent a questionnaire to RK and its related companies, concerning the production costs for the product under review, including inter-company aspects of such costs.

(22) Questionnaire replies were received from RK, Agripure Holdings Public Co. Ltd., AgriFresh and Sweet Corn Products Co. Ltd.

(23) The Commission conducted a verification visit pursuant to Article 16 of the basic Regulation at the premises of the four companies in Thailand to verify the information provided in the questionnaires. — River Kwai International Food Industry Co., Ltd, Kanchanaburi, Thailand; — AgriFresh Co. Ltd., Kanchanaburi, Thailand (‘AgriFresh’); — Agripure Holdings Public Co. Ltd., Bangkok, Thailand (‘Agripure’); — Sweet Corn Products Co. Ltd., Kanchanaburi, Thailand (‘SCP’).

2.2. Investigation period

(24) This investigation covers the period from 1 July 2011 to 31 December 2012 (‘the review investigation period’ or ‘RIP’).

2.3. Examination of the allocation of costs between River Kwai International Food Industry Co., Ltd and its related companies

(25) The Court judgments required the Commission to re-examine the allocation of costs between RK and its subsidiary, AgriFresh. The Commission firstly reviewed the group structure to ensure that all relevant costs, which may have been or should have been charged, allocated or apportioned between group companies and which may have had an impact on the production costs of River Kwai International Food Industry Co., Ltd and/or AgriFresh, were considered.

(26) In this regard, the Commission identified two additional group companies, Agripure Holdings Public Co. Ltd (RK’s parent company – ‘Agripure’) and Sweet Corn Products Co. Ltd. (a subsidiary of RK – ‘SCP’, also located in Kanchanaburi) whose costs warranted more detailed examination.

(27) In addition to the elements described in recitals (28) to (50), the Commission also considered in its assessment the following claims made by AETMD in the context of this reopening proceeding: (i) price manipulation on purchases of raw materials by RK and AgriFresh from common suppliers, whereby RK would pay lower than the market price in order to artificially lower its production cost and normal value, while AgriFresh would pay higher than the market price, to the same supplier; and (ii) RK’s purchases of baby corn from AgriFresh might not be at market prices, because there might be a compensatory arrangement between the companies.

(28) The Commission found that RK’s most common raw materials are cans, lids and green corn. Since cans and lids are not used for the fresh products sold by AgriFresh, the Commission reviewed the accounts of RK’s green corn suppliers. The Commission found that there were many different suppliers to RK with comparable average prices and that in the RIP there were no sales of green corn from Agrifresh to RK.

(29) In addition, the Commission found that purchases of baby corn by RK from AgriFresh were not charged to the production cost of RK for the product under review (16) as baby corn is not a raw material for the product under review.

2.3.1. Agripure Holdings Public Co. Ltd (‘Agripure’)

Management fee

(30) A substantial management fee was charged by Agripure to RK, during the RIP. That fee was not charged to other companies in the group. The level of the fee was revised periodically, in order to cover all of the costs of Agripure and for it to make a profit. The services provided by Agripure contractually included management advice, strategy, organisation, internal control and finance. The Commission was informed that the fee also covered marketing, which was carried out by Agripure employees almost exclusively for RK’s benefit.

(31) However, certain departments in Agripure provided types of services, which would also have benefited other group companies, namely AgriFresh and SCP. As such, the Commission found that RK had not understated in its accounts the management fee paid by RK to Agripure during the RIP.

Intra-group loan from Agripure to RK

(32) There was a short-term loan from Agripure to RK at an interest rate of between 4 % and 6 % per annum, which was repaid by RK within approximately 40 days. The rate was considered to be at arms’ length as it was comparable to the interest rate on other short-term loans from unrelated financial institutions (with an interest rate also ranging between 4 % and 6 % per year). Given the very short term of the loan, the actual interest expense incurred by RK during the review investigation period was not material.

2.3.2. Sweet Corn Products Co. Ltd., Kanchanaburi, Thailand

(33) SCP’s operational activities are located on the same site as RK, although its headquarters are a few kilometres away.

(34) It was established that SCP sold sweet corn seeds to RK at market prices and the purchase cost was not allocated by RK to the product under review, as sweet corn seeds are not a raw material used by RK for the production of the product under review.

(35) SCP rented a small plot of land on RK’s site during the review investigation period. As the value of land is not depreciated, no costs for that plot of land were included in RK’s expenses, while RK’s rental income was not allocated to the product under review. As such, the rental income had no impact on RK’s costs.

2.3.3. Costs shared between RK and AgriFresh

(36) The Commission reviewed costs which were paid by either RK or AgriFresh and recharged, reapportioned or reallocated to the other company.

Electricity costs

(37) Certain electricity costs were initially paid by RK and then recharged to AgriFresh. The Commission noted that the amounts recharged were comparable, but slightly higher than if the costs had been allocated based on the respective turnovers. However, this was consistent with the explanation received that the fresh produce business of AgriFresh requires higher cooling and refrigeration costs. RK’s electricity costs were allocated to the product under review, whereas the income received from AgriFresh was not allocated to the product under review. As such, the Commission concluded that RK’s electricity costs allocated to the product under review were not understated.

Quality control and spare parts

(38) RK charges AgriFresh for Quality control, as AgriFresh does not have its own quality control department and for spare parts for maintenance on an occasional basis. The costs incurred by RK were apportioned to the product under review. The income received from AgriFresh was not allocated to the product under review. As such, there was no under reporting of such costs for RK for the product under review.

2.3.4. Transactions between RK and AgriFresh

Land, buildings and machinery leased by AgriFresh from RK

(39) For the first 6 months of the review investigation period, AgriFresh rented a small plot of land, as well as some machinery and equipment on an adjacent plot of land, situated on the RK site, from RK. At that time, AgriFresh rented the adjacent piece of land from an unrelated third party.

(40) The depreciation costs for RK were apportioned to the product under review, while the rental income from AgriFresh was recorded in other income and not allocated to the product under review. As such, there was no understatement of RK’s costs for the product under review in this regard.

(41) From the beginning of 2012, AgriFresh purchased the machinery for the production of fresh produce from RK at net book value and leased land and a small part of a building on the same site as RK, from a party, which could be considered to be related. This did not have any impact on the RK costs allocated to the product under review.

(42) In addition, AgriFresh rented a piece of farmland from RK during the review investigation period. The rent paid by AgriFresh was at a lower cost per square metre than AgriFresh paid to an unrelated third party. However, there was no impact on the costs for RK, as the income received by RK was not allocated to the product under review.

Loan from AgriFresh to RK

(43) There was a loan from AgriFresh to RK for a very short duration (6 days) during the review investigation period at an interest rate in the range of 4 % to 6 %. Due to the very short duration of the loan, the interest paid was immaterial in absolute terms while the interest rate was considered to be at arm’s length as it was in line with the interest rates paid by RK to unrelated financial institutions.

Administrative staff

(44) As regards administrative staff, the costs recharged to AgriFresh were examined and found to be in line with the companies’ respective turnovers. In addition, the income RK received from AgriFresh was not allocated to the product under review. As such, there was no understatement of costs by RK in this regard.

Other costs

(45) The cost accounts in the trial balances of both companies were examined for the review investigation period to determine whether there were any other cost items, which appeared unusually low for RK or high for AgriFresh, which may have indicated the possibility of an over or under allocation of costs between the companies. The examination of other costs did not raise such concerns.

(46) The Commission also reviewed the inter-company accounts between group companies but did not identify any unreasonable cost allocations.

2.4. Conclusion on the allocation of costs between RK and AgriFresh and other group companies

(47) In accordance with the Court judgments, the Commission carried out a detailed review of the allocation of costs between RK and its subsidiary, AgriFresh. It also extended its investigation to cover the allocation of costs between RK and its parent company, Agripure and its subsidiary, SCP.

(48) With regard to the management fee charged by Agripure to RK, the Commission found that there was no understatement of costs by RK in this respect during the review investigation period.

(49) With regard to electricity costs, quality control and spare parts, the amounts charged to RK and to the product under review were not understated and the income received from AgriFresh did not reduce the costs of the product under review.

(50) With regard to land, buildings and machinery leased to AgriFresh and SCP by RK, the relevant depreciation costs for RK were apportioned to the product under review and not offset by the income received from respectively AgriFresh and SCP. As such, there was no understatement of costs for the product under review.

(51) The loans from Agripure and AgriFresh to RK which were applicable during the review investigation period were both at an interest rate which could be considered at arm’s length and anyway of a very short duration, meaning the interest payments were not material in RK’s total costs.

(52) In addition, the Commission found that the recharge of administrative costs from RK to AgriFresh was reasonable, while a review of cost accounts and inter-company accounts did not raise other concerns with regard to inappropriate cost allocations.

(53) Furthermore, the Commission found no evidence of price manipulation on purchases of raw materials by RK and AgriFresh from common suppliers and that purchases of baby corn by RK from AgriFresh and purchases of sweet corn seeds by RK from SCP were not charged to the product under review and had no impact on the cost of production of the product under review.

(54) The Commission, therefore, did not identify any over allocation or over apportionment of costs from RK to AgriFresh or the other group companies considered during the review investigation period.

(55) As a result, the Commission concluded that the findings concerning production costs used to establish normal value and the dumping margin calculated in the interim review investigation, as described in the 2014 Regulation, remain valid, as explained in recital (16). Furthermore, the investigation leading to the 2014 Regulation confirmed that, due to a corporate restructuring, RK no longer produced and sold certain other products as compared to the original investigation period. The Commission confirmed in this reopening investigation that this change has had an impact on RK’s cost of production for the product under review, resulting in a lower dumping margin. Thus, the findings contained in the 2014 Regulation concerning lasting nature of the change of circumstances also remain valid, as explained in recital (16).

(56) It is noted that pursuant to Article 11(9) of the basic Regulation, the methodology applied in the 2019 expiry review was the same as in the 2014 Regulation as concerns RK. Since the reopening confirmed the findings of the 2014 Regulation, this has no impact on the findings of the 2019 expiry review, in particular the dumping margin mentioned in recital (63) of the 2019 expiry review Regulation.

2.5. Conclusion

(57) Based on the above findings, the weighted average dumping margin expressed as a percentage of the CIF Union frontier price, duty unpaid, of 3,6 % established for RK in the 2014 Regulation, should be reimposed.

3. DISCLOSURE

(58) On 1 December 2020, the Commission informed all interested parties of the above findings, based on which it intended to propose the imposition of the anti-dumping duty on imports of certain prepared or preserved sweetcorn in kernels originating in Thailand applicable to RK at a rate of 3,6 %. It also provided the interested parties with the essential facts and considerations based on which it intended to amend Implementing Regulations (EU) No 875/2013 and (EU) 2019/1996. They were also granted a period of 10 days within which they could submit comments subsequent to this disclosure. No comments were received.

4. ANTI-DUMPING MEASURES

(59) Based on this assessment, the Commission considered it appropriate to amend the anti-dumping duty on imports of certain prepared or preserved sweetcorn in kernels originating in Thailand applicable to RK. The revised level of anti-dumping duties applies without any temporal interruption since the entry into force of the 2014 Regulation (namely, as of 28 March 2014 onwards). Customs authorities are instructed to collect the appropriate amount on imports concerning RK and refund any excess amount collected so far in accordance with the applicable customs legislation.

5. DURATION OF MEASURES

(60) This procedure does not affect the date on which the measures imposed by Implementing Regulation (EU) 2019/1996 will expire, pursuant to Article 11(2) of the basic Regulation.

(61) The measures provided for in this Regulation are in accordance with the opinion of the Committee established by Article 15(1) of Regulation (EU) 2016/1036,

HAS ADOPTED THIS REGULATION:

Article 1 1. A definitive anti-dumping duty is hereby imposed on imports of sweetcorn (Zea mays var. saccharata) in kernels, prepared or preserved by vinegar or acetic acid, not frozen, currently falling under CN code ex 2001 90 30 (TARIC code 2001903010), and sweetcorn (Zea mays var. saccharata) in kernels prepared or preserved otherwise than by vinegar or acetic acid, not frozen, other than products of heading 2006, currently falling under CN code ex 2005 80 00 (TARIC code 2005800010), originating in Thailand and produced by River Kwai International Food Industry Co., Ltd, Kanchanaburi, Thailand, as of 28 March 2014. 2. The rate of the definitive anti-dumping duty applicable to the net, free-at Union-frontier price before duty, of the product described in paragraph 1 and produced by River Kwai International Food Industry Co., Ltd, shall be 3,6 % (TARIC additional code A791). Unless otherwise specified, the provisions in force concerning customs duties shall apply.

Article 2 Any definitive anti-dumping duty paid by River Kwai International Food Industry Co., Ltd pursuant to Implementing Regulation (EU) No 875/2013 imposing a definitive anti-dumping duty on imports of certain prepared or preserved sweetcorn in kernels originating in Thailand following an expiry review pursuant to Article 11(2) of Regulation (EC) No 1225/2009 or pursuant to Implementing Regulation (EU) 2019/1996, imposing a definitive anti-dumping duty on imports of certain prepared or preserved sweetcorn in kernels originating in the Kingdom of Thailand following an expiry review pursuant to Article 11(2) of Regulation (EU) 2016/1036 in excess of the definitive anti-dumping duty established in Article 1, shall be repaid or remitted. The repayment or remission shall be requested from national customs authorities in accordance with the applicable customs legislation.

Article 3 This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 25 February 2021. For the Commission The President Ursula VON DER LEYEN

(1) OJ L 176, 30.6.2016, p. 21.

(2) Council Implementing Regulation (EU) No 875/2013 of 2 September 2013 imposing a definitive anti-dumping duty on imports of certain prepared or preserved sweetcorn in kernels originating in Thailand following an expiry review pursuant to Article 11(2) of Regulation (EC) No 1225/2009 (OJ L 244, 13.9.2013, p. 1).

(3) The ‘product under review’ is the same as in the investigation which led to the 2014 Regulation, namely sweetcorn (Zea mays var. saccharata) in kernels, prepared or preserved by vinegar or acetic acid, not frozen, currently falling under CN code ex 2001 90 30 (TARIC code 2001903010), and sweetcorn (Zea mays var. saccharata) in kernels prepared or preserved otherwise than by vinegar or acetic acid, not frozen, other than products of heading 2006, currently falling under CN code ex 2005 80 00 (TARIC code 2005800010), originating in Thailand.

(4) Council Implementing Regulation (EU) No 307/2014 of 24 March 2014 amending Implementing Regulation (EU) No 875/2013 imposing a definitive anti-dumping duty on imports of certain prepared or preserved sweetcorn in kernels originating in Thailand following an interim review pursuant of Article 11(3) of Regulation (EC) No 1225/2009 (OJ L 91, 27.3.2014, p. 1).

(5) Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ L 343, 22.12.2009, p. 51).

(6) Commission Implementing Regulation (EU) 2019/1996 of 28 November 2019 imposing a definitive anti-dumping duty on imports of certain prepared or preserved sweetcorn in kernels originating in the Kingdom of Thailand following an expiry review pursuant to Article 11(2) of Regulation (EU) 2016/1036 (OJ L 310, 2.12.2019, p. 6).

(7) Judgment of the General Court of 14 December 2017, Association européenne des transformateurs de maïs doux‘AETMD’v Council, T-460/14, not published, ECLI: EU:T:2017:916.

(8) Judgment of the Court of Justice of 28 March 2019, River Kwai International Food Industry Co. Ltd v Council of the European Union, C-144/18 P, ECLI:EU:C:2019:266.

(9) Judgment of the Court of 26 April 1988, Asteris AE and others and Greek Republic v Commission joined cases 97, 193, 99 and 215/86, ECLI:EU:C:1988:199, paragraphs 27 and 28.

(10) Judgment of the Court of 12 November 1998, Kingdom of Spain v Commission, C-415/96, ECLI:EU:C:1998:533, paragraph 31; Judgment of the Court of 3 October 2000, Industrie des Poudres Spheriques v Council, C-458/98 P, ECLI:EU:C:2000:531, paragraphs 80 to 85; Judgment of the Court of First Instance of 9 July 2008, Alitalia v Commission, T-301/01, ECLI:EU:T:2008:262, paragraphs 99 and 142; Judgment of the General Court of 12 May 2011, Region Nord-Pas-de-Calais and Communauté d’agglomération du Douaisis v Commission, Joined cases T-267/08 and T-279/08, ECLI:EU:T:2011:209, paragraph 83.

(11) Judgment of the Court of Justice of 14 June 2016, Commission v McBride, C-361/14 P, ECLI:EU:C:2016:434, at paragraph 56; see also, in the area of dumping, judgment of the Court of Justice of 3 October 2000, Industrie des poudres sphériques v Council, C-458/98 P ECLI:EU:C:2000:531, at paragraph 84.

(12) ECJ Judgment, para. 37, General Court Judgment, para. 72.

(13) See, mutatis mutandis, Judgment of the General Court of 20 September 2019, Jinan Meide Casting Co. Ltd v Commission, T-650/17, ECLI:EU:T:2019:644, at paragraphs 333–342.

(14) See footnote 4.

(15) OJ C 291, 29.8.2019, p. 3.

(16) The ‘product under review’ is the same as in the original investigation and the investigation which led to the 2014 Regulation, namely sweetcorn (Zea mays var. saccharata) in kernels, prepared or preserved by vinegar or acetic acid, not frozen, currently falling under CN code ex 2001 90 30 (TARIC code 2001903010), and sweetcorn (Zea mays var. saccharata) in kernels prepared or preserved otherwise than by vinegar or acetic acid, not frozen, other than products of heading 2006, currently falling under CN code ex 2005 80 00 (TARIC code 2005800010), originating in Thailand.