EN Official Journal of the European Union C 55/4

Notice of initiation of an expiry review of the anti-dumping measures applicable to imports of certain polyethylene terephthalate originating in India, Indonesia, Malaysia, Taiwan and Thailand

2012/C 55/04

Following the publication of a notice of impending expiry (1) of the anti-dumping measures in force on imports of certain polyethylene terephthalate originating in India, Indonesia, Malaysia, Taiwan and Thailand ‘the countries concerned’, the European Commission ‘the Commission’ has received a request for review pursuant to Article 11(2) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (2)‘the basic Regulation’.

1. Request for review

The request was lodged on 25 November 2011 by the Polyethylene Terephthalate Committee of Plastics Europe ‘the applicant’ on behalf of Union producers representing a major proportion, in this case more than 50 %, of the Union production of certain polyethylene terephthalate.

2. Product under review

The product under review is polyethylene terephthalate having a viscosity number of 78 ml/g or higher, according to ISO Standard 1628-5, currently falling within CN code 3907 60 20 and originating in India, Indonesia, Malaysia, Taiwan and Thailand ‘the product under review’.

3. Existing measures

The measures currently in force are a definitive anti-dumping duty imposed by Council Regulation (EC) No 192/2007 (3).

4. Grounds for the expiry review

The applicant has provided sufficient evidence that the expiry of the measures would be likely to result in a continuation or recurrence of dumping and injury.

4.1. Allegation of likelihood of continuation or recurrence of dumping

In the absence of reliable data on domestic prices, the allegation of likelihood of continuation of dumping for India is based on a comparison of constructed normal value (manufacturing costs, selling, general and administrative costs (SG&A) and profit) in India with the export prices (at ex-works level) of the product under review when sold for export to the Union.

On this basis, the dumping margin calculated is significant.

In the absence of reliable data on domestic prices for Indonesia, the likelihood of recurrence of dumping is based on a comparison of constructed normal value (manufacturing costs, selling, general and administrative costs (SG&A) and profit) in Indonesia with the export price (at ex-works level) of the product under review when sold for export to Japan, the Philippines and the United States of America, in view of the current absence of significant import volumes from Indonesia to the Union.

In the absence of reliable data on domestic prices for Malaysia, the likelihood of recurrence of dumping is based on a comparison of constructed normal value (manufacturing costs, selling, general and administrative costs (SG&A) and profit) in Malaysia with the export price (at ex-works level) of the product under review when sold for export to Egypt, the People’s Republic of China and the United Arab Emirates, in view of the current absence of significant import volumes from Malaysia to the Union.

In the absence of reliable data on domestic prices for Taiwan, the likelihood of recurrence of dumping is based on a comparison of constructed normal value (manufacturing costs, selling, general and administrative costs (SG&A) and profit) in Taiwan with the export price (at ex-works level) of the product under review when sold for export to Ecuador, Japan and Peru, in view of the current absence of significant import volumes from Taiwan to the Union.

In the absence of reliable data on domestic prices for Thailand, the likelihood of recurrence of dumping is based on a comparison of constructed normal value (manufacturing costs, selling, general and administrative costs (SG&A) and profit) in Thailand with the export price (at ex-works level) of the product under review when sold for export to Australia, Japan and Vietnam, in view of the current absence of significant import volumes from Thailand to the Union.

On the basis of the above comparisons of normal values and export prices, which show dumping from Indonesia, Malaysia, Taiwan and Thailand, the applicant alleges that there is likelihood of recurrence of dumping from those countries.

4.2. Allegation of likelihood of recurrence of injury

The applicant further alleges the likelihood of recurrence of injurious dumping. In this respect, the applicant has provided evidence that, should the measures be allowed to lapse, the current import level of the product under review is likely to increase due to the existence of unused capacity in the countries concerned.

The applicant also alleges that the flow of imports of the product under review is likely to rise due to the measures in force on imports of similar products originating in the countries concerned in traditional markets other than the Union, i.e. the People’s Republic of China, South Africa, Turkey and the United States of America. This can lead to a redirection of exports from other third countries to the Union.

The applicant finally alleges that the removal of injury has been mainly due to the existence of the measures and that any recurrence of substantial imports at dumped prices from the countries concerned would likely lead to a recurrence of injury to the Union industry should measures be allowed to lapse.

5. Procedure

Having determined, after consulting the Advisory Committee, that sufficient evidence exists to justify the initiation of an expiry review, the Commission hereby initiates a review in accordance with Article 11(2) of the basic Regulation.

The investigation will determine whether the expiry of the measures would be likely, or unlikely, to lead to a continuation or recurrence of dumping and recurrence of injury.

5.1. Procedure for the determination of likelihood of a continuation or recurrence of dumping

5.1.1. Investigating exporting producers

Exporting producers (4) of the product under review from the countries concerned are invited to participate in this review investigation.

In view of the potentially large number of exporting producers in India, Indonesia, Malaysia, Taiwan and Thailand involved in this proceeding and in order to complete the investigation within the statutory time limits, the Commission may limit the exporting producers to be investigated to a reasonable number by selecting a sample (this process is also referred to as ‘sampling’). The sampling will be carried out in accordance with Article 17 of the basic Regulation.

In order to enable the Commission to decide whether sampling is necessary and, if so, to select a sample, all exporting producers, or representatives acting on their behalf, are hereby requested to make themselves known to the Commission. These parties have to do so within 15 days of the date of publication of this notice in the Official Journal of the European Union, unless otherwise specified, by providing the Commission with information on their company(ies) requested in Annex A to this notice.

In order to obtain the information it deems necessary for the selection of the sample of exporting producers, the Commission will also contact the authorities of India, Indonesia, Malaysia, Taiwan and Thailand and may contact any known associations of exporting producers.

All interested parties wishing to submit any other relevant information regarding the selection of the sample, excluding the information requested above, must do so within 21 days of the publication of this notice in the Official Journal of the European Union, unless otherwise specified.

If a sample is necessary, the exporting producers may be selected based on the largest representative volume of exports of the product under review to the Union which can reasonably be investigated within the time available. All known exporting producers, the authorities of the countries concerned and associations of exporting producers will be notified by the Commission, via the authorities of the countries concerned if appropriate, of the companies selected to be in the sample.

In order to obtain the information it deems necessary for its investigation with regard to exporting producers, the Commission will send questionnaires to the exporting producers selected to be in the sample, to any known association of exporting producers, and to the authorities of the countries concerned.

All exporting producers selected to be in the sample will have to submit a completed questionnaire within 37 days from the date of notification of the sample selection, unless otherwise specified.

The questionnaire will contain information on, inter alia, the structure of the exporting producer's company(ies), the activities of the company(ies) in relation to the product under review, the cost of production, the sales of the product under review on the domestic market of the country concerned and the sales of the product under review to the Union.

Companies that had agreed to their possible inclusion in the sample but were not selected to be in the sample shall be considered to be cooperating ‘non-sampled cooperating exporting producers’.

5.1.2. Investigating unrelated importers (5) (6)

Unrelated importers of the product under review from India, Indonesia, Malaysia, Taiwan and Thailand to the Union are invited to participate in this investigation.

In view of the potentially large number of unrelated importers involved in this proceeding and in order to complete the investigation within the statutory time limits, the Commission may limit to a reasonable number the unrelated importers that will be investigated by selecting a sample (this process is also referred to as ‘sampling’). The sampling will be carried out in accordance with Article 17 of the basic Regulation.

In order to enable the Commission to decide whether sampling is necessary and, if so, to select a sample, all unrelated importers, or representatives acting on their behalf, are hereby requested to make themselves known to the Commission. These parties must do so within 15 days of the date of publication of this notice in the Official Journal of the European Union, unless otherwise specified, by providing the Commission with the information on their company(ies) requested in Annex B to this notice.

In order to obtain the information it deems necessary for the selection of the sample of unrelated importers, the Commission may also contact any known associations of importers.

All interested parties wishing to submit any other relevant information regarding the selection of the sample, excluding the information requested above, must do so within 21 days of the publication of this notice in the Official Journal of the European Union, unless otherwise specified.

If a sample is necessary, the importers may be selected based on the largest representative volume of sales of the product under review in the Union which can reasonably be investigated within the time available. All known unrelated importers and associations of importers will be notified by the Commission of the companies selected to be in the sample.

In order to obtain the information it deems necessary for its investigation, the Commission will send questionnaires to the sampled unrelated importers and to any known association of importers. These parties must submit a completed questionnaire within 37 days from the date of the notification of the sample selection, unless otherwise specified.

The questionnaire will contain information on, inter alia, the structure of their company(ies), the activities of the company(ies) in relation to the product under review and on the sales of the product under review.

5.2. Procedure for the determination of likelihood of recurrence of injury and investigating Union producers

In order to establish whether there is a likelihood of recurrence of injury to the Union industry, Union producers of the product under review are invited to participate in the Commission investigation.

In view of the large number of Union producers involved in this proceeding and in order to complete the investigation within the statutory time limits, the Commission has decided to limit to a reasonable number the Union producers that will be investigated by selecting a sample (this process is also referred to as ‘sampling’). The sampling is carried out in accordance with Article 17 of the basic Regulation.

The Commission has provisionally selected a sample of Union producers. Details can be found in the file for inspection by interested parties. Interested parties are hereby invited to consult the file (for this they should contact the Commission using the contact details provided in Section 5.6). Other Union producers, or representatives acting on their behalf, that consider that there are reasons why they should be included in the sample must contact the Commission within 15 days of the date of publication of this notice in the Official Journal of the European Union.

All interested parties wishing to submit any other relevant information regarding the selection of the sample must do so within 21 days of the publication of this notice in the Official Journal of the European Union, unless otherwise specified.

All known Union producers and/or associations of Union producers will be notified by the Commission of the companies finally selected to be in the sample.

In order to obtain the information it deems necessary for its investigation, the Commission will send questionnaires to the sampled Union producers and to any known association of Union producers. These parties must submit a completed questionnaire within 37 days from the date of the notification of the sample selection, unless otherwise specified.

The questionnaire will contain information on, inter alia, the structure of their company(ies), the financial situation of the company(ies), the activities of the company(ies) in relation to the product under review, the cost of production and the sales of the product under review.

5.3. Procedure for the assessment of Union interest

Should the likelihood of continuation or recurrence of dumping and recurrence of injury be confirmed, a decision will be reached, pursuant to Article 21 of the basic Regulation, as to whether maintaining the anti-dumping measures would not be against the Union interest. Union producers, importers and their representative associations, users and their representative associations, and representative consumer organisations are invited to make themselves known within 15 days of the date of publication of this notice in the Official Journal of the European Union, unless otherwise specified. In order to participate in the investigation, the representative consumer organisations have to demonstrate, within the same deadline, that there is an objective link between their activities and the product under review.

Parties that make themselves known within the above deadline may provide the Commission with information on the Union interest within 37 days of the date of publication of this notice in the Official Journal of the European Union, unless otherwise specified. This information may be provided either in a free format or by completing a questionnaire prepared by the Commission. In any case, information submitted pursuant to Article 21 will only be taken into account if supported by factual evidence at the time of submission.

5.4. Other written submissions

Subject to the provisions of this notice, all interested parties are hereby invited to make their views known, submit information and provide supporting evidence. Unless otherwise specified, this information and supporting evidence must reach the Commission within 37 days of the date of publication of this notice in the Official Journal of the European Union.

5.5. Possibility to be heard by the Commission investigation services

All interested parties may request to be heard by the Commission investigation services. Any request to be heard should be made in writing and should specify the reasons for the request. For hearings on issues pertaining to the initial stage of the investigation the request must be submitted within 15 days of the date of publication of this notice in the Official Journal of the European Union. Thereafter, a request to be heard should be submitted within the specific deadlines set by the Commission in its communication with the parties.

5.6. Instructions for making written submissions and sending completed questionnaires and correspondence

All written submissions, including the information requested in this notice, completed questionnaires and correspondence provided by interested parties for which confidential treatment is requested shall be labelled ‘Limited (7)’.

Interested parties providing ‘Limited’ information are required to furnish non-confidential summaries of it pursuant to Article 19(2) of the basic Regulation, which will be labelled ‘For inspection by interested parties’. These summaries should be sufficiently detailed to permit a reasonable understanding of the substance of the information submitted in confidence. If an interested party providing confidential information does not furnish a non-confidential summary of it in the requested format and quality, such confidential information may be disregarded.

Interested parties are required to make all submissions and requests in electronic format (the non-confidential submissions via e-mail, the confidential ones on CD-R/DVD), and must indicate the name, address, e-mail address, telephone and fax numbers of the interested party. However, any powers of attorney, signed certifications, and any updates thereof, accompanying questionnaire replies shall be submitted on paper, i.e. by post or by hand, at the address below. If an interested party cannot provide its submissions and requests in electronic format, it must immediately contact the Commission pursuant to Article 18(2) of the basic Regulation. For further information concerning correspondence with the Commission, interested parties may consult the relevant web page on the website of the Directorate-General for Trade (http://ec.europa.eu/trade/tackling-unfair-trade/trade-defence).

Commission address for correspondence:

European Commission Directorate-General for Trade Directorate H Office: N105 04/092 1049 Bruxelles/Brussel BELGIQUE/BELGIË Fax +32 22985353 E-mail: TRADE-R542-PET-A@ec.europa.eu (to be used by exporters, related importers, associations and representatives of India, Indonesia, Malaysia, Taiwan and Thailand) TRADE-R542-PET-B@ec.europa.eu (to be used by Union producers, unrelated importers, users, consumers, associations in the Union)

6. Non-cooperation

In cases where 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 on the basis of facts available, in accordance with Article 18 of the basic Regulation.

Where it is found that any interested party has supplied false or misleading information, the information may be disregarded and use may be made of 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 18 of the basic Regulation, the result may be less favourable to that party than if it had cooperated.

7. Hearing Officer

Interested parties may request the intervention of the Hearing Officer of the Directorate-General for Trade. The Hearing Officer acts as an interface between the interested parties and the Commission investigation services. The Hearing Officer reviews requests for access to the file, disputes on the confidentiality of documents, requests for extension of time limits and requests by third parties to be heard. The Hearing Officer may organise a hearing with an individual interested party and mediate to ensure that the interested parties' rights of defence are being fully exercised.

A request for a hearing with the Hearing Officer should be made in writing and should specify the reasons for the request. For hearings on issues pertaining to the initial stage of the investigation the request must be submitted within 15 days of the date of publication of this notice in the Official Journal of the European Union. Thereafter, a request to be heard must be submitted within specific deadlines set by the Commission in its communication with the parties.

The Hearing Officer will also provide opportunities for a hearing involving parties to take place which would allow different views to be presented and rebuttal arguments offered on issues pertaining, inter alia, to the likelihood of continuation or recurrence of dumping and recurrence of injury, and Union interest.

For further information and contact details, interested parties may consult the Hearing Officer's web pages on the website of the Directorate- General for Trade (http://ec.europa.eu/trade/tackling-unfair-trade/hearing-officer/index_en.htm).

8. Schedule of the investigation

The investigation will be concluded, according to Article 11(5) of the basic Regulation within 15 months of the date of the publication of this notice in the Official Journal of the European Union.

9. Possibility to request a review under Article 11(3) of the basic Regulation

As this expiry review is initiated in accordance with the provisions of Article 11(2) of the basic Regulation, the findings thereof will not lead to the level of the existing measures being amended but will lead to those measures being repealed or maintained in accordance with Article 11(6) of the basic Regulation.

If any interested party considers that a review of the level of the measures is warranted so as to allow for the possibility to amend (i.e. increase or decrease) the level of the measures, that party may request a review pursuant to Article 11(3) of the basic Regulation.

Parties wishing to request such a review, which would be carried out independently of the expiry review mentioned in this notice, may contact the Commission at the address given above.

10. Processing of personal data

Any personal data collected in this investigation will be treated in accordance with Regulation (EC) No 45/2001 of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (8).

(1) OJ C 122, 20.4.2011, p. 10.

(2) OJ L 343, 22.12.2009, p. 51.

(3) OJ L 59, 27.2.2007, p. 1.

(4) An exporting producer is any company in the countries concerned which produces and exports the product under investigation to the Union market, either directly or via third party, including any of its related companies involved in the production, domestic sales or exports of the product concerned.

(5) Only importers not related to exporting producers can be sampled. Importers that are related to exporting producers have to fill in Annex 1 to the questionnaire for these exporting producers. In accordance with Article 143 of Commission Regulation (EEC) No 2454/93 concerning the implementation of the Community Customs Code, persons shall be deemed to be related only if: (a) they are officers or directors of one another's businesses; (b) they are legally recognised partners in business; (c) they are employer and employee; (d) any person directly or indirectly owns, controls or holds 5 % or more of the outstanding voting stock or shares of both of them; (e) one of them directly or indirectly controls the other; (f) both of them are directly or indirectly controlled by a third person; (g) together they directly or indirectly control a third person; or (h) they are members of the same family. Persons shall be deemed to be members of the same family only if they stand in any of the following relationships to one another: (i) husband and wife; (ii) parent and child; (iii) brother and sister (whether by whole or half blood); (iv) grandparent and grandchild; (v) uncle or aunt and nephew or niece; (vi) parent-in-law and son-in-law or daughter-in-law; (vii) brother-in-law and sister-in-law. (OJ L 253, 11.10.1993, p. 1). In this context ‘person’ means any natural or legal person.

(6) The data provided by unrelated importers may also be used in relation to aspects of this investigation other than the determination of dumping.

(7) A ‘Limited’ document is a document which is considered confidential pursuant to Article 19 of Council Regulation (EC) No 1225/2009 (OJ L 343, 22.12.2009, p. 51) and Article 6 of the WTO Agreement on Implementation of Article VI of the GATT 1994 (Anti-Dumping Agreement). It is also a document protected pursuant to Article 4 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council (OJ L 145, 31.5.2001, p. 43).

(8) OJ L 8, 12.1.2001, p. 1.

ANNEX A