EN Official Journal of the European Union C 159/15

Notice of initiation of an anti-subsidy proceeding concerning imports of certain plastic sacks and bags originating in Malaysia and Thailand

(2005/C 159/06)

The Commission has received a complaint pursuant to Article 10 of Council Regulation (EC) No 2026/97 on protection against subsidised imports from countries not members of the European Community (1) (‘the basic Regulation’), alleging that imports of certain plastic sacks and bags originating in Malaysia and Thailand (‘the countries concerned’), are being subsidized and are thereby causing material injury to the Community industry.

1. Complaint

The complaint was lodged on 18 May 2005 by 30 European producers of certain plastic sacks and bags (‘the complainant’) on behalf of producers representing a major proportion, in this case more than 25 %, of the total Community production of those plastic sacks and bags.

2. Product

The product allegedly being subsidised is certain plastic sacks and bags containing at least 20 % of polyethylene and of a thickness not exceeding 100 micrometres originating in Malaysia and Thailand (‘the product concerned’), normally declared within CN codes ex 3923 21 00, ex 3923 29 10 and ex 3923 29 90. These CN codes are only given for information.

3. Allegation of subsidization

It is alleged that the producers of the product concerned in Malaysia have benefited from a number of subsidies granted by the Government of Malaysia. These subsidies are: Pioneer status, Import duty exemption and sales tax exemption, Export credit refinancing program, Industrial building allowance, Double deduction for promotion of exports and Investment Tax Allowance.

It is alleged that the above schemes are subsidies since they involve a financial contribution from the Government of Malaysia and confer a benefit to the recipients, i.e. to exporters/producers of certain plastic bags. They are alleged to be contingent upon export performance or limited to specific companies and therefore specific and countervailable.

It is alleged that the producers of the product concerned in Thailand have benefited from a number of subsidies granted by the Government of Thailand. These subsidies are: exemptions or reductions on duties on imports of machinery, exemption from corporate income tax, exemption of import duties on raw and essential materials, provision of electricity for less than adequate remuneration, and double deduction for income tax of transport and utility costs.

It is alleged that the above schemes are subsidies since they involve a financial contribution from the Government of Thailand and confer a benefit to the recipients, i.e. to exporters/producers of certain plastic bags. They are alleged to be contingent upon export performance or limited to specific companies and therefore specific and countervailable.

4. Allegation of injury

The complainant has provided evidence that imports of the product concerned from Malaysia and Thailand have increased overall in absolute terms and in terms of market share.

It is alleged that the volumes and the prices of the imported product concerned have, among other consequences, had a negative impact on the market share held, the quantities sold and the level of prices charged by the Community industry, resulting in substantial adverse effects on the overall performance and the financial situation of the Community industry.

5. Procedure

Having determined, after consulting the Advisory Committee, that the complaint has been lodged by or on behalf of the Community industry and that there is sufficient evidence to justify the initiation of a proceeding, the Commission hereby initiates an investigation pursuant to Article 10 of the basic Regulation.

5.1. Procedure for the determination of subsidization and injury

The investigation will determine whether the product described in point 2 originating in Malaysia and Thailand is being subsidized and whether this subsidization has caused injury.

(a) Sampling

In view of the apparent large number of parties involved in this proceeding, the Commission may decide to apply sampling in accordance with Article 27 of the basic Regulation.

(i) Sampling for exporters/producers in Malaysia and Thailand

In order to enable the Commission to decide whether sampling is necessary and, if so, to select a sample, all exporters/producers, or representatives acting on their behalf, are hereby requested to make themselves known by contacting the Commission and providing the following information on their company or companies within the time limit set in point 6(b)(i) and in the format indicated in point 7:

— name, address, e-mail address, telephone, and fax, and/or telex numbers and contact person,

— the turnover in local currency and the volume in metric tonnes of the product concerned sold for export to the Community in 2004,

— the turnover in local currency and the sales volume in metric tonnes for the product concerned on the domestic market in 2004,

— whether the company intends to claim an individual subsidy rate (individual subsidy rates can only be claimed by producers),

— the precise activities of the company with regard to the production of the product concerned,

— the names and the precise activities of all related companies (2) involved in the production and/or selling (export and/or domestic) of the product concerned,

— any other relevant information that would assist the Commission in the selection of the sample,

— an indication of whether the company or companies agree to their inclusion in the sample, which implies replying to a questionnaire and accepting an on-the-spot investigation of their response.

In order to obtain the information it deems necessary for the selection of the sample of exporters/producers, the Commission will, in addition, contact the authorities of the exporting countries, and any known associations of exporters/producers.

(ii) Sampling for importers

In order to enable the Commission to decide whether sampling is necessary and, if so, to select a sample, all importers, or representatives acting on their behalf, are hereby requested to make themselves known to the Commission and to provide the following information on their company or companies within the time limit set in point 6(b)(i) and in the formats indicated in point 7:

— name, address, e-mail address, telephone, and fax, and/or telex numbers and contact person,

— the total turnover in euro of the company in 2004,

— the total number of employees,

— the precise activities of the company with regard to the product concerned,

— the volume in metric tonnes and value in euro of imports into and resales made in the Community market in 2004 of the imported product concerned originating in Malaysia and Thailand,

— the names and the precise activities of all related companies involved in the production and/or selling of the product concerned,

— any other relevant information that would assist the Commission in the selection of the sample,

— an indication of whether the company or companies agree to their inclusion in the sample, which implies replying to a questionnaire and accepting an on-the-spot investigation of their response.

In order to obtain the information it deems necessary for the selection of the sample of importers, the Commission will, in addition, contact any known associations of importers.

(iii) Sampling for Community producers

In view of the large number of Community producers supporting the complaint, the Commission intends to investigate injury to the Community industry by applying sampling.

In order to enable the Commission to select a sample, all Community producers are hereby requested to provide the following information on their company or companies within the time limit set in point 6(b)(i):

— name, address, e-mail address, telephone, and fax, and/or telex numbers and contact person,

— the total turnover in EUR of the company in 2004,

— the precise activities of the company with regard to the production of the product concerned,

— the value in euro of sales of the product concerned made in the Community market in 2004,

— the volume in metric tonnes of sales of the product concerned made in the Community market in 2004,

— the volume in metric tonnes of the production of the product concerned in 2004,

— the names and the precise activities of all related companies involved in the production and/or selling of the product concerned,

— any other relevant information that would assist the Commission in the selection of the sample,

— an indication of whether the company or companies agree to their inclusion in the sample, which implies replying to a questionnaire and accepting an on-the-spot investigation of their response.

(iv) Final selection of the samples

All interested parties wishing to submit any relevant information regarding the selection of the samples must do so within the time limit set in point 6(b)(ii).

The Commission intends to make the final selection of the samples after having consulted the parties concerned that have expressed their willingness to be included in the sample.

Companies included in the samples must reply to a questionnaire within the time limit set in point 6(b)(iii) and must cooperate within the framework of the investigation.

If sufficient cooperation is not forthcoming, the Commission may base its findings, in accordance with Articles 27(4) and 28 of the basic Regulation, on the facts available. A finding based on facts available may be less advantageous to the party concerned, as explained in point 8.

(b) Questionnaires

In order to obtain the information it deems necessary for its investigation, the Commission will send questionnaires to the sampled Community industry and to any association of producers in the Community, to the sampled exporters/producers in Malaysia and Thailand, to any association of exporters/producers, to the sampled importers, to any association of importers named in the complaint, and to the authorities of the exporting countries concerned.

Exporters/producers in Malaysia and Thailand claiming an individual subsidy rate, with a view to the application of Articles 27(3) and 15(3) of the basic Regulation, must submit a completed questionnaire within the time limit set in point 6(a)(ii) of this notice. They therefore have to request a questionnaire within the time limit set in point 6(a)(i). However, such parties should be aware that if sampling is applied to exporters/producers, the Commission may nonetheless decide not to calculate an individual subsidy rate for them, if the number of exporters/producers is so large that individual examination would be unduly burdensome and would prevent the timely completion of the investigation.

(c) Collection of information and holding of hearings

All interested parties are hereby invited to make their views known, submit information other than questionnaire replies and to provide supporting evidence. This information and supporting evidence has to reach the Commission within the time limit set in point 6(a)(ii).

Furthermore, the Commission may hear interested parties, provided that they make a request showing that there are particular reasons why they should be heard. This request must be made within the time limit set in point 6(a)(iii).

5.2. Procedure for assessment of Community interest

In accordance with Article 31 of the basic Regulation and in the event that the allegations of subsidization and injury caused thereby are substantiated, a decision will be reached as to whether the adoption of anti-subsidy measures would not be against the Community interest. For this reason the Community industry, importers, their representative associations, representative users and representative consumer organisations, provided that they prove that there is an objective link between their activity and the product concerned, may, within the general time limits set in point 6(a)(ii), make themselves known and provide the Commission with information. The parties which have acted in conformity with the precedent sentence may request a hearing setting the particular reasons why they should be heard within the time limit set in point 6(a)(iii). It should be noted that any information submitted pursuant to Article 31 will only be taken into account if supported by factual evidence at the time of submission.

6. Time limits

(a) General time limits

(i) For parties to request a questionnaire

All interested parties should request a questionnaire as soon as possible, but not later than 15 days after the publication of this notice in the Official Journal of the European Union.

(ii) For parties to make themselves known, to submit questionnaire replies and any other information

All interested parties, if their representations are to be taken into account during the investigation, must make themselves known by contacting the Commission, present their views and submit questionnaire replies or any other information within 40 days of the date of publication of this notice in the Official Journal of the European Union, unless otherwise specified. Attention is drawn to the fact that the exercise of most procedural rights set out in the basic Regulation depends on the party's making itself known within the aforementioned period.

Companies selected in a sample must submit questionnaire replies within the time limits specified in point 6(b)(iii).

(iii) Hearings

All interested parties may also apply to be heard by the Commission within the same 40 day time limit.

(b) Specific time limit in respect of sampling

(i) The information specified in point 5.1(a)(i), 5.1(a)(ii) and 5.1(a)(iii) should reach the Commission within 15 days of the date of publication of this notice in the Official Journal of the European Union, given that the Commission intends to consult parties concerned that have expressed their willingness to be included in the sample on its final selection within a period of 21 days of the publication of this notice in the Official Journal of the European Union.

(ii) All other information relevant for the selection of the sample as referred to in 5.1(a)(iv) must reach the Commission within a period of 21 days of the publication of this notice in the Official Journal of the European Union.

(iii) The questionnaire replies from sampled parties must reach the Commission within 37 days from the date of the notification of their inclusion in the sample.

7. Written submissions, questionnaire replies and correspondence

All submissions and requests made by interested parties must be made in writing (not in electronic format, unless otherwise specified) and must indicate the name, address, e-mail address, telephone and fax, and/or telex numbers of the interested party. All written submissions, including the information requested in this notice, questionnaire replies and correspondence provided by interested parties on a confidential basis shall be labelled as ‘Limited’ (3) and, in accordance with Article 29(2) of the basic Regulation, shall be accompanied by a non-confidential version, which will be labelled ‘For inspection by interested parties’.

Commission address for correspondence:

European Commission Directorate General for Trade Directorate B Office: J-79 5/16 B-1049 Brussels Fax (32-2) 295 65 05.

8. Non-cooperation

In cases in which any interested party refuses access to or does not provide the necessary information within the time limits, or significantly impedes the investigation, provisional or final findings, affirmative or negative, may be made in accordance with Article 28 of the basic Regulation, on the basis of the facts available.

Where it is found that any interested party has supplied false or misleading information, the information shall be disregarded and use may be made of the facts available. If an interested party does not cooperate or cooperates only partially and findings are therefore based on facts available in accordance with Article 28 of the basic Regulation, the result may be less favourable to that party than if it had cooperated.

9. Schedule of the investigation

The investigation will be concluded, according to Article 11(9) of the basic Regulation within 13 months of the date of the publication of this notice in the Official Journal of the European Union. According to Article 12(1) of the basic Regulation, provisional measures may be imposed no later than 9 months from the publication of this notice in the Official Journal of the European Union.

(1) OJ L 288, 21.10.1997, p. 1, Regulation as last amended by Council Regulation (EC) No 461/2004 (OJ L 77, 13.3.2004, p. 12).

(2) For guidance on the meaning of related companies, please refer to Article 143 of Commission Regulation (EEC) No 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ L 253, 11.10.1993, p. 1).

(3) This means that the document is for internal use only. It is protected pursuant to Article 4 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p. 43). It is a confidential document pursuant to Article 29 of the basic Regulation and Article 12 of the WTO Agreement on Subsidies and Countervailing Measures.