Council Regulation (EC) No 1522/2000 of 10 July 2000 imposing a definitive anti-dumping duty on imports of synthetic staple fibres of polyester originating in Australia, Indonesia and Thailand and collecting definitively the provisional duty imposed
Date: 2000-07-10
Institutions: Council of the European Union
Subjects: Australia, Indonesia, Thailand, anti-dumping duty, import, plastics

L 175/10

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Official Journal of the European Communities

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COUNCIL REGULATION (EC) No 1522/2000

of 10 July 2000

imposing a definitive anti-dumping duty on imports of synthetic staple fibres of polyester origin-
ating in Australia, Indonesia and Thailand and collecting definitively the provisional duty imposed

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community,

Having regard to Council Regulation (EC) No 384/96 of 22
December 1995 on protection against dumped imports from
countries not members of the European Community (1) and in
particular Article 9 thereof,

Having regard to the proposal submitted by the Commission
after consulting the Advisory Committee,

Whereas:

(1)

(2)

(3)

(4)

1. PROCEDURE

1.1. Provisional measures and definitive counter-

vailing duties

By Commission Regulation (EC) No 124/2000 (2) (the
‘provisional duty Regulation’) provisional anti-dumping
duties were imposed on imports into the Community of
polyester staple fibres (‘PSF’)
falling within CN code
5503 20 00 and originating in Australia, Indonesia and
Thailand.

countervailing duties were

As a result of a parallel anti-subsidy investigation, provi-
sional
imposed under
Commission Regulation (EC) No 123/2000 (3) on
imports into the Community of PSF originating in
Australia, and Taiwan.

Regarding the
abovementioned anti-subsidy invest-
igation, by Council Regulation (EC) No 978/2000 (4)
definitive countervailing duties on imports originating in
Australia, Taiwan and Indonesia were adopted.

1.2. Subsequent procedure

Following the imposition of provisional anti-dumping
duties, several parties submitted comments in writing. In
accordance with the provisions of Article 6(5) of Regula-
tion (EC) No 384/96 (the ‘basic Regulation’), the parties
which so requested were granted an opportunity to be
heard. Parties were informed of the essential facts and
considerations on the basis of which it was intended to
recommend the imposition of a definitive anti-dumping
duty and the definitive collection, at the level of this
duty, of amounts secured by way of provisional duty.

(1) OJ L 56, 6.3.1996, p. 1. Regulation as last amended by Regulation

(EC) No 905/98 (OJ L 128, 30.4.1998, p. 18).

(2) OJ L 16, 21.1.2000, p. 3.
(3) OJ L 16, 21.1.2000, p. 30.
(4) OJ L 113, 12.5.2000, p. 1.

(5)

(6)

(7)

(8)

(9)

They were also granted a period within which to make
representations subsequent to this disclosure.

The oral and written comments submitted within the
deadlines set for that purpose by the interested parties
were considered and, where deemed appropriate, taken
into account for the definitive findings.

1.3. Non-cooperation

Indonesian

Following the imposition of provisional measures, one
non-cooperating
producer
requested the Commission to reconsider its status as
non-cooperator. The claim was that, despite the difficul-
ties caused by the deadlines, this company replied to the
Commission questionnaire and that this was an indica-
tion of its intention to cooperate.

exporting

this exporting producer

As explained in recital 18 of the provisional duty Regu-
lation,
failed to provide a
completed response to the questionnaire within the
deadline, which was extended several times in order to
enable the company to submit a meaningful reply. The
provisional determination of non-cooperation should
therefore be confirmed.

2. PRODUCT CONCERNED AND LIKE PRODUCT

The product concerned is synthetic staple fibres of poly-
esters, not carded, combed or otherwise processed for
spinning, which is currently classifiable under CN code
5503 20 00.
It is commonly referred to as polyester
staple fibres or PSF.

The Royal Thai Government (‘RTG’), the Government of
Indonesia (‘GOI’), certain exporting producers and a
users' association (‘Eurofibrefill’) claimed that the Notice
of Initiation of the present proceeding did not cover PSF
types for non-spinning applications, and consequently
these PSF types should have been excluded from the
proceeding.

(10)

It was also argued that, in any event, a differentiation
should be made between PSF types used for spinning
applications (also called woven, or ‘PSFS’) and PSF used
for non-spinning applications (also called non-woven,
fibrefill or ‘PSFNS’) because of different physical, tech-
nical and chemical characteristics and different use.
Furthermore,
if
any, between PSFS and PSFNS was very limited and
concerned only certain types of fibres originally intended
for PSFS which may be used as PSFNS. Actually, some
the differentiation
indicated that
interested parties

it was alleged that inter-changeability,

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between PSFS and PSFNS types would be reflected in the
thickness expressed in ‘denier’.
In their opinion, PSF
types below 3 denier are used by the spinning industry,
whereas types above 3 denier are used in non-spinning
applications.

however be noted that differences in physical character-
istics exist for types of even the same thickness, since
production is normally made according to customers'
specifications.

(11) Moreover, they argued that the Community industry
mainly produces PSFS and that consequently most
PSFNS types have to be sourced outside the Community.

(17)

(12)

(13)

(14)

Similarly, one exporting producer in Indonesia claimed
that PSF produced from recycled raw materials (‘recycled
PSF’) should not be included in the same category as PSF
produced from regular raw materials (‘regular PSF’),
because both have a distinct production process, they
are produced with different raw material and they have
different end-uses. They therefore argued that recycled
PSF should not be covered by the present proceeding.

In this respect it should be noted that the Notice of
Initiation, as well as the complaint, clearly reproduce the
description of the relevant CN code which covers all
types of PSF. Notwithstanding this, after the initiation of
the present investigation, the wording of the description
of the relevant CN code was wrongly interpreted by
certain exporting producers. Subsequently, it was clari-
fied that both the complaint and the Notice of Initiation
covered all
types of PSF exported by the countries
concerned and produced by the Community industry
irrespective of their use.

In fact, the Community industry produces all types of
PSF and in particular PSFNS. Indeed, contrary to allega-
tions suggesting very limited activity of the Community
industry in PSFNS production, the investigation showed
that during the investigation period, ‘IP’ (1 April 1998 to
31 March 1999), the sales of PSFS types represented
around 25 % of sales of
the Community industry,
whereas PSFNS types represented around 75 %.

(15)

It was also found that about 50 % of the imports of PSF
originating in Australia, Indonesia and Thailand were
PSFS types, whereas the other 50 % were PSFNS types.

The alleged almost complete differentiation of PSF types
using the 3 denier threshold reflecting differences in the
use of the product, was not confirmed by the present
investigation, in particular by the analysis of the actual
data received from the exporting producers and the
Community industry.
In fact, significant overlapping
between different types of PSF was actually established.
This examination showed that sales of PSF below 3
denier to non-spinning industries and above 3 denier to
the spinning industry covers about 20 % of the imports
from the
the
Community industry's sales. Moreover, 7 % of the fibres
are exactly at the threshold point of 3 denier, which are
sold either for spinning or non-spinning uses. The
investigation has therefore shown that there is no clear
dividing line between the various types, as there is over-
lapping and consequently competition between ‘adja-
cent’ types within this range of types.

concerned and of

countries

three

(18) Apart from the overlap mentioned above, the fact that
the same PSF is used for both spinning and non-spin-
ning applications has also been confirmed by the exis-
tence of a clear one-way inter-changeability found for
certain PSF types. Indeed, PSFS can be sold for non-spin-
ning uses if the quality of the fibres is not suitable for
spinning uses. Consequently, following the practice of
the Community in such cases, the various types of PSF
involved should be considered as forming one single
product.

(19) As regards the alleged difference in cost of production of
PSFS and PSFNS, it should be noted that such difference
is negligible. This is also reflected in the fact that there
are no big differences in the sales prices of the PSFS and
PSFNS, e.g. the regular types of PSF for spinning and
non-spinning purposes.

(16) As far as the alleged differences in physical, technical
and chemical characteristics are concerned, it should be
recalled that PSF comes in a wide range of different
types, of generally the same chemical composition. They
are also produced with the same production facilities
and even on the same production lines. The invest-
igation has shown that, depending on the operator,
between 15 and 80 types of PSF are produced by both
exporting producers and the Community industry. The
main characteristics by which different types of PSF can
be distinguished are thickness (denier), length, tenacity,
grimp and shrinkage. It is clear that between the ‘bottom
end’ and the ‘top end’ of the range, there are differences,
in terms of the above technical characteristics. It must

(20) As mentioned above, all PSF types are produced using
the same production equipment. Furthermore, switching
from one PSF type to another, apart from certain adjust-
ment and calibration costs, does not involve any addi-
tional investments. Although as such this is not relevant
for the determination of the product concerned and like
product,
it follows that the Community industry can
produce any type of PSF. Consequently, even if, as
alleged, certain PSF types were not readily available from
the Community industry, this is not due to technical
reasons but
to the depressed price level caused by
dumped imports which customers have used in their
requests for price quotes. Therefore, the argument that
certain types of PSF are not available from the
Community industry has not been confirmed.

(21)

(22)

(23)

(24)

(25)

(26)

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it should be recalled that

types of PSF, variation in quality of

the existence of
Finally,
different
raw
material used, production processes and uses does not
entail any significant differences in the basic physical,
chemical and technical characteristics of PSF. Therefore,
recycled and regular PSF should be considered as being
part of the product concerned for the purpose of this
proceeding.

it

is considered that
received regarding the definition of

the
Based on the foregoing,
comments
the
product concerned and the like product, are not such as
to invalidate the conclusions of recitals 10 to 12 of the
provisional duty Regulation. Consequently, these conclu-
sions, which are in line with the conclusions reached for
the same product in previous investigations, are hereby
confirmed.

3.1.3. Comparison

(28)

Following the adoption of provisional measures,
the
Australian exporting producer reiterated its request for
an allowance for technical services in the domestic
market.

(29) As laid out in recital 40 of the provisional duty Regula-
tion, the company did not give a satisfactory explanation
with regard to the nature of its claims and also did not
documentary
satisfactory
provide
evidence to support
the adjustment
claimed. Furthermore, the company was not able to
demonstrate that the factor concerned led to different
prices being charged to customers on the domestic and
export markets.

explanations
the amounts of

or

(30)

The claim was consequently rejected and the conclusions
set out in the provisional duty Regulation are confirmed.

3. DUMPING

3.1.4. Dumping margin

3.1. Australia

(31)

3.1.1. Normal value

Following the adoption of provisional measures, the sole
Australian exporting producer claimed that the Commis-
sion had wrongly considered one domestic user as a
related company and should therefore not have excluded
the transactions to this company in determining normal
value. According to the exporting producer, this user
was an independent customer.

This claim was rejected because according to the infor-
mation received on the spot, the user in question and
the Australian exporting producer were each owned by a
trust. Both trusts were controlled by the same family.
Moreover, the company itself admitted that some direc-
tors and shareholders in both companies were common.
The conclusion drawn was that both companies were
associated parties within the meaning of Article 2(1) of
the basic Regulation. In addition, the company did not
show that the relationship had not affected the price
levels between the
the
Commission established that these transactions were not
made in the ordinary course of trade, as they were made
at a loss.

two parties. Furthermore,

The Australian exporting producer also claimed that in
determining the cost of the raw materials the amounts
actually paid instead of the prices invoiced for raw mate-
rials should have been used.

This claim was accepted and the cost of production used
in the ordinary course of trade test and in constructing
normal value was revised accordingly.

3.1.2. Export price

(27) No claims were made concerning the determination of
the export price. The conclusions set out in the provi-
sional duty Regulation are hereby confirmed.

The comparison of the revised weighted average normal
value with the weighted average export price by product
type on an ex factory basis showed the existence of
dumping. The
a
percentage of the cif import price duty unpaid is 18 %.

dumping margin as

definitive

3.2. Indonesia

3.2.1. Sampling

(32) As

explained in the provisional duty Regulation,
sampling has been used for Indonesia. Following the
adoption of provisional measures,
Indonesian
the
they had not agreed to the
authorities argued that
sample proposed by the Commission at the time of the
selection of the sample. However, it should be recalled
that the companies finally selected in the sample were
those which had been suggested in writing for this
purpose by the Indonesian authorities themselves. No
further comments concerning sampling were received
and, therefore, the conclusions of the provisional duty
Regulation are hereby confirmed.

3.2.2. Normal value

(33)

Following the adoption of provisional measures,
the
Commission reviewed the extent of the cooperation it
had received from one Indonesian exporting producer.
In this respect, it was concluded that problems which
were encountered both with the information provided in
the response to the questionnaire and with the subse-
quent on-the-spot verification meant that certain infor-
mation supplied by the
company could not be
adequately verified in particular in relation to the cost of
production.
presented was
misleading and as such impeded the investigation. More-
over, explanations submitted following the adoption of
provisional measures raised further doubts about the
original information submitted. The company was there-
fore informed that certain information submitted will
not be taken into account and was granted an oppor-
tunity to provide further explanations. The explanations

information

The

as

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(34)

(35)

In these
provided were not considered satisfactory.
circumstances, the findings were made on the basis of
the facts available in accordance with Article 18 of the
basic Regulation. However, information supplied by this
company was still used to the extent possible for the
purpose of this investigation.

This Indonesian exporting producer claimed that the
Commission should have calculated separate normal
values and separate dumping margins for second and
third quality grades of
the product concerned. The
company claimed that by reporting data for different
sub-qualities separately, it had followed the instructions
of the questionnaire, since it considered that the tech-
nical specifications of second and third qualities were
different and that,
these qualities were
furthermore,
differentiated in the company's records. The company
also reported different costs of production for
the
different qualities, allegedly based on a costing system
which allocated costs in order to allow cost recovery for
the sub-qualities. In addition, the company claimed that
the comparison of grouped sub-qualities was not appro-
priate.

it was established that

It was found that the company neither followed the
reporting instructions set out in the questionnaire, nor
its own records, as made available to the Commission,
with regard to the classification of sub-standard qualities.
Notwithstanding the above, the cost of production of
the different qualities as reported by the company in the
response to the questionnaire was further examined. In
this respect,
these costs of
production of the second and third qualities did not
reasonably reflect the costs associated with the produc-
tion and sale of the product under consideration, as
provided in Article 2(5) of the basic Regulation. In fact,
the costs of production reported for the sub-qualities did
not contain labour cost, depreciation, overheads and
selling, general & administrative (‘SG & A’) expenses.
Furthermore, it was found that the company's allegation
that they priced just to cover cost conflicted with the
information submitted, which showed high profits for
the sub-qualities. Moreover, it was not contested that the
aim of the company was to produce the first quality PSF.
This implied that the actual cost of production of all
PSF, irrespective of quality, was the same. Therefore, the
cost of production was recalculated on the basis of the
total actual cost incurred during the investigation period
which was then divided by the total volume produced in
order to establish an average cost of production.

(36) According to the methodology described in the provi-
sional duty Regulation, the revised cost of production
was then applied to verify whether domestic prices were
made in the ordinary course of trade. Where this was
found to be the case, domestic prices were used to
establish normal value. Otherwise, normal value was
constructed. On this basis, the grouping or otherwise of
the allegedly different sub-qualities did not affect the

(37)

(38)

(39)

(40)

(41)

(42)

(43)

(44)

outcome. However, it was accepted that the company
had some sub-standard output of the product concerned
and this was treated the matter as a comparison issue.

The same Indonesian exporting producer claimed that
the general and administrative expenses used in calcu-
lating normal value should have been allocated over the
entire sales of
the division producing the product
concerned,

including the internal sales.

This claim was rejected, as expenses were incurred by
sales to independent customers and not by internal
transfers to other divisions that
further process the
product concerned.

The same Indonesian exporting producer claimed that
the Commission should have used the product specific
SG & A expenses in calculating normal value and not
the total SG & A expenses of the division producing the
product concerned.

This claim was rejected, as the company failed to
provide the necessary supporting documentation which
would have allowed a proper verification of the product
specific SG & A expenses during the on-the-spot invest-
igation. Therefore, the overall allocation of the SG & A
expenses of the division was maintained.

The same Indonesian exporting producer claimed that
the Commission had included certain identifiable export
expenses in the cost of the product sold on the domestic
market in calculating normal value.

The claim was accepted and the allocation of the SG & A
expenses was revised on the basis of
the chart of
accounts submitted with the questionnaire response and
used in the verification, provided that it clearly indicated
the accounts concerned as related to exports.

The same Indonesian exporting producer claimed that
the Commission should not have allocated to the
product concerned the SG & A of one organisational
the company allegedly involved in financial
unit of
market activities as this unit was a separate profit centre
and did not act as a central service provider to other
divisions.

This claim was rejected. The company provided no
evidence that the organisational unit in question was a
division independent from the operational divisions nor
that it acted as a profit centre. In particular, the audited
financial statements of the company made no reference
to financial market activities carried out by an indepen-
dent profit centre. In fact, the documents provided by
the company showed that the organisational unit in
question was centrally involved in the operations of the
company as defined in the audited accounts. Its activities
were those normally carried out by a head office. There-
fore, the allocation of the SG & A expenses of this unit
to the product concerned was maintained in the calcula-
tion of normal value.

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(45)

(46)

The same Indonesian exporting producer claimed that
the Commission should not have allocated the interest
expenses of the organisational unit mentioned above to
the product concerned. The company argued that the
loans declared for this unit funded activities on financial
markets and investments in subsidiary companies. These
loans were therefore, according to the company, unre-
lated to the production and sales of
the product
concerned and an attribution to the different operational
divisions would be incorrect. It was further argued that
the funding requirements of the division involved in the
production and sales of the product concerned were met
by the division itself.

This claim was rejected because, as indicated in recital
44, above, the activities of this organisational unit were
those normally carried out by a head office. In addition,
the company did not provide any satisfactory evidence
why the loans would not have been used to finance the
activities of the different operational divisions. Moreover,
the explanation provided with regard to the funding of
the manufacturing and the financial market activities
were not confirmed by the audited financial statements
of the company.

(47) When examining the claim concerning these financial
expenses, it was established that the company entered
into hedging arrangements in order to limit exchange
rate risks related to the abovementioned loans. These
hedging transactions bore an annual cost in the form of
a premium. Although the company claimed that this
cost should not be allocated to the product concerned
for the reasons mentioned in recital 45, it was consid-
ered that these costs had to be included in the SG & A
expenses and allocated to all products on the basis of
the total turnover of the company. In addition, a claim
to consider foreign exchange gains on hedging transac-
tions was rejected, since such exchange rate gains are
not taken into account in anti-dumping investigations,
whether realised or not.

(48)

(49)

The same Indonesian exporting producer claimed that if
interest expenses were allocated to the different opera-
tional divisions, these should be offset by corresponding
income.

This claim was accepted insofar as it concerned income
from short-term deposits of funds. The SG & A expenses
were therefore revised before being used in the ordinary
course of trade test and in constructing normal value.

3.2.3. Export price

(50) No claims were made concerning the determination of
the export price. The conclusions set out in the provi-
sional duty Regulation are hereby confirmed.

3.2.4. Comparison

(51) As indicated in recital 36, one exporting producer
claimed that quality differences of the production output
should be taken into account. In these circumstances, it
was considered appropriate to grant a special adjustment
on the normal value for sub-standard quality.

(52)

(53)

(54)

(55)

claimed

Following the adoption of provisional measures, one
the
Indonesian exporting producer
that
Commission should have calculated the amount
for
credit costs on export sales on the basis of the actual
expenses incurred by the company when discounting
L/C Bills. The company further claimed that the interest
rates charged in the framework of export sales were
lower than the interest rates for domestic sales in the
same currency.

This claim was rejected because,
in accordance with
Article 2(10)(g) of the basic Regulation, an adjustment is
to be made for differences in the cost of any credit
granted for the sale under consideration only ‘provided
that it is a factor taken into account in the determination
of the prices charged’. In its questionnaire response, the
company did not supply any information with regard to
the interest rates charged for credit in the framework of
export sales, although this was explicitly requested in the
questionnaire. The claim that the rate of interest for
export sales credit was lower than that for domestic
sales, which were both made in the same currency,
could therefore not be verified because this factor was
unknown at the time of the verification.

3.2.5. Dumping margin

The comparison of the weighted average normal value,
revised as appropriate, with the weighted average export
price by product type on an ex factory basis, showed the
existence of dumping for both investigated exporting
producers included in the sample.

The dumping margin of one investigated company was
revised. Accordingly,
the weighted average dumping
margin calculated for the cooperating companies not
included in the sample pursuant to Article 9(6) of the
basic Regulation was also revised. However, the revised
calculations have not affected the dumping margin
established for the non-cooperating companies which is
hereby confirmed. The definitive dumping margins as a
percentage of the cif import price duty unpaid are as
follows:

— Sampled exporting producers investigated:

— PT. Indorama Synthetics Tbk.:

— PT. Panasia Indosyntec:

8,4 %

14,8 %

— Cooperating exporting producers not included in the

sample:

— PT. GT Petrochem Industries Tbk.:

— PT.
tries:

Susilia

Indah

Synthetic

Fiber

— PT. Teijin Indonesia Fiber Corporation

Tbk.:

— Non-cooperating exporting producers:

14,0 %

Indus-
14,0 %

14,0 %

20,8 %

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3.3. Thailand

3.3.1. Normal value

(56)

(57)

(58)

Following the adoption of provisional measures, one
exporting producer, which did not keep separate cost of
sales accounts by finished product, argued that
the
Commission should have accepted the detailed model-
specific cost of production calculations which they had
made expressly for the purpose of replying to the ques-
tionnaire.

that

This exporting producer further argued, after provisional
their investigation period-end closing
measures,
stock value from their monthly internal management
results had been calculated on an expected market value
basis rather than on a cost basis and therefore it was not
appropriate for that figure to be used for the cost of
production.

It also argued that it would have been more appropriate
to establish the cost of production on the closing stock
figure at the end of the financial year than on the closing
stock figure at the end of the investigation period, as the
year end closing stock figure was audited, covered nine
months of the investigation period rather than three
months and was similar to the cost of production specif-
ically calculated by the company for the first nine
months of the investigation period.

(59)

In addition, it claimed that monthly costs of production
should have been used due to fluctuations in raw
material costs and exchange rates and the fact that there
were no exports to the Community during certain
months.

(60) However,

it was found that the specifically calculated
costs were inconsistent with certain closing stock values
reported by this exporting producer in its questionnaire
response, given the stock valuation method reported
therein, i. e. the lower of average cost or net realisable
value.

(61)

The exporting producer had denied the existence of
management accounts for the product concerned in its
questionnaire response and no internal management
results containing closing stock values were obtained or
verified during the on-the-spot verification.

(62) With regard to allegedly audited stock figures, no finan-
cial year end closing stock valuation schedules were
obtained during the verification visit, despite being
requested, and therefore, it was not possible to deter-
mine the historically utilised stock valuation method or
to verify the unit stock values on a product type or total
basis at the year end.

(63)

(64)

(65)

(66)

(67)

(68)

In these circumstances, it was considered that the specif-
ically calculated monthly and annual costs of production
were not reliable. Therefore, the investigation period-end
closing stock value, which according to all information
received by the Commission up to the end of the verifi-
cation visit, was based on the lower of cost or net
realisable value, should be maintained as the cost of
production for the determination of normal value.

Claims made by another exporting producer for adjust-
ments to its SG & A expenses were rejected where the
items had already been taken into account or with
regard to financial expenses and income and certain fees
and taxes, because the claims were inconsistent with the
company's questionnaire response.

The same exporting producer claimed that certain goods
returns and sales discounts should have been deducted
from the domestic sales transaction listing. The claim
with regard to goods returns was rejected as the returns
did not relate to sales in the investigation period and the
related quantities had not been included in the listing.
The claim relating to sales discounts was rejected as for
certain discounts, no direct
link to the sales under
consideration was demonstrated before completion of
the verification visit while for other discounts, no claim
was made in the exporting producer's questionnaire
response. However, the net sales figure used in deter-
mining the SG & A percentage for the investigation
period was increased to be consistent.

Two exporting producers argued that for the purposes
of the ordinary course of trade test, the comparison of
prices with the cost of production should be carried out
on a quarterly basis. They indicated that both raw
material prices and sales prices decreased significantly
throughout the investigation period and therefore, it was
necessary to perform the test on a quarterly basis to
ensure a fair comparison. This aspect was examined and
the calculation was adjusted to a quarterly basis.

Two exporting producers claimed that technical assis-
tance costs should be allocated on a turnover basis for
calculating the domestic SG & A
the purpose of
expenses to be included in the cost of production. This
argument was accepted.

the provisional stage was unjustified.

Three exporting producers argued that the exclusion of
foreign exchange gains and losses from their SG & A
expenses at
In
general, exchange rate gains and losses were not taken
into account as the exchange rates used by the Commis-
sion were those applicable on the invoice date. However,
insofar as they arose from purchases of raw materials,
the Commission adjusted the normal value calculations
in order to take the relevant exchange gains and losses

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into account. One of these exporting producers then
claimed that the calculation of the foreign exchange gain
included within the SG & A expenses should have been
based on audited figures. However,
this was not
accepted as no allegedly audited figures were received
until late in the investigation when they were no longer
verifiable.

3.3.2. Export price

(69) No claims were made concerning the determination of
the export price. The conclusions set out in the provi-
sional duty Regulation are hereby confirmed.

dumping margin established for a cooperating company,
was also revised. The definitive dumping margins as a
percentage of the cif import price duty unpaid are as
follows:

— Indo Poly (Thailand) Ltd.

— Teijin Polyester (Thailand) Ltd.

— Teijin (Thailand) Ltd.

— Tuntex (Thailand) Public Co. Ltd.

— Non-cooperating exporting producers

15,5 %

26,9 %

26,9 %

27,7 %

27,7 %.

3.3.3. Comparison

4. INJURY

(70)

Two exporting producers requested a comparison of
export price with normal value on a quarterly basis and
one on a monthly basis. The request was granted for the
exporting producers requesting on a quarterly basis and
rejected for the third exporting producer for which no
reliable normal value
could be determined on a
monthly/quarterly basis.

(71) One exporting producer argued that an allowance
should be granted for freight paid on returned goods.
However, this claim was rejected as it was not consid-
ered appropriate to include an inland freight cost allow-
ance for return freight costs where the sales were
partially or totally cancelled.

The same exporting producer requested that an allow-
ance should be granted for technical assistance, but the
allowance was rejected as the technical assistance was
not carried out on the basis of a contractual or legal
obligation.

Two exporting producers claimed that different levels of
trade existed for export and domestic sales of
the
product concerned. This was accepted, but given that the
existing difference in the levels of trade could not be
quantified because of the absence of the relevant levels
on the domestic market, a special adjustment was
granted under Article 2(10)(d)(ii) of the basic Regulation.

Two exporting producers claimed that they should be
granted a currency conversion adjustment as they argued
that the currency movement had been significant (over
10 %) and took place over a period of five months. This
adjustment was not accepted as it was considered that
the currency movement was fluctuating rather than
reflecting a sustained movement.

3.3.4. Dumping margin

the revised, where appropriate,
The comparison of
weighted average normal value with the weighted
average export price by product type on an ex factory
basis showed the existence of dumping for all investi-
gated exporting producers.

(72)

(73)

(74)

(75)

(76)

(77)

(78)

4.1. Procedural issues

The RTG and one exporting producer in Indonesia,
claimed that the non-confidential summaries of submis-
sions made by some Community producers included in
the definition of
the Community industry were not
complete or sufficiently detailed, in order to allow them
to effectively exercise their right of defence. They there-
fore argued that the Commission's failure to take this
into account constituted a violation of the WTO Anti-
Dumping Agreement
(hereinafter WTO ADA) and
Article 19 of the basic Regulation.

Regarding this claim, it must be noted that these parties
received full disclosure in accordance with Article 19(4)
of
the basic Regulation. The disclosure included the
general information and the detailed evidence relied on
by the Commission for its findings.
In addition, the
Commission requested the Community producers in
question to submit additional non-confidential informa-
tion. This non-confidential
information was submitted
by the Community producers concerned, following the
Commission's definitive disclosure to the interested
parties, which had full access
to it, consequently
allowing them to exercise their right of defence. In any
the Community producers
event, even if one of
concerned were excluded from the definition of
the
Community industry, as argued by the abovementioned
parties, such a development would have not affected the
overall conclusions on the situation of the Community
industry. Indeed, it was established that such an exclu-
sion would have neither any impact on the trends of the
economic indicators pertaining to the Community
the Community
industry, nor on the standing of
industry,
this Community
since the production of
producer was small in comparison to the total produc-
tion of the other Community industry producers.

4.2. Definition of the Community industry

Following changes to the calculations in accordance with
the findings noted above, the dumping margins of one
company and one group of companies were revised. In
consequence, the dumping margin for any non-cooper-
ating companies, which is set at the level of the highest

(79)

The RTG and one Indonesian exporting producer argued
that the production volume of the Community industry
as indicated in recital 64 of the provisional duty Regula-
tion had been overstated. More specifically, they under-
lined that it was determined that the seven cooperating

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Community producers included in the definition of the
Community industry represented about 85 % of the total
Community production, whereas the complaint stated
that the nine complaining producers represented the
same share of the total Community production.

(80)

it was argued that

two complaining
Furthermore,
Community producers included in the definition of the
Community industry were related to an exporting
producer in a country concerned. According to the
Commission's consistent practice these two producers
should be excluded from the Community industry.

(81) As far as the representativity of the Community industry
is concerned, it should be noted that, on the one hand,
the data contained in the complaint covered 10 months
of 1998. These data were thus extrapolated to cover a
12-month period. On this basis, the nine complaining
companies represented in fact around 89 % of
total
Community production in 1998. On the other hand,
based on the data received in the course of the present
investigation and verified at the level of the seven coop-
the
Community
erating
the investigation revealed that
Community industry,
these represented around 85 % of
total Community
production in 1998. Consequently, the share of total
Community production represented by the Community
industry mentioned in recital 64 of the provisional duty
Regulation is hereby confirmed.

constituting

producers

(82)

(83)

It should be underlined that the provisions of Article
4(1)(a) of the basic Regulation do not call for an auto-
matic exclusion of Community producers from the
Community industry when they are related to exporting
producers concerned. This Article states that the term
‘Community industry’ may be interpreted as referring to
the rest of the producers, when it is found that certain
producers are related to the exporters. The situation
should therefore be examined on a case-by-case basis in
the light of Article 4(2) of the basic Regulation. In fact,
Community producers related to exporters are to be
excluded from the definition of the Community produc-
tion, if this relationship leads the producer concerned to
behave differently from other producers.

In the light of the above considerations, the investigation
showed that the two Community producers in question
did not behave differently to other producers which
were not related to the exporting producers concerned.
They fully supported the complaint which led to the
initiation of the present proceeding and actively partici-
pated in the investigation. Furthermore, during the
on-the-spot verification and based on the evidence avail-
able, no statutory or organisational restrictions imposed
by the shareholders in the country concerned were

found to exist in relation to the operation and business
decisions of the two companies in question. Finally, the
RTG and the above exporting producer did not provide
any proof of such restraining control. Consequently, it
the two Community producers
was confirmed that
the
should not be excluded from the definition of
Community
from the
Community industry. Since no other comments were
received regarding the definition of
the Community
industry, the conclusions of recital 64 of the provisional
duty Regulation are hereby confirmed.

production

therefore

and

4.3. Injury analysis period

(84)

(85)

(86)

(87)

The GOI claimed that in order to obtain a meaningful
assessment of the trends upon which the injury determi-
nations are based, the information relating to the indica-
tors examined should be established on the basis of
12-monthly periods from 1996 onwards in line with the
IP.

It must be noted that the IP covers the last nine months
of 1998 and the first three of 1999. The examination of
indicators for the calendar years 1996 to 1998 covers
also three-quarters of the IP. The comparison of 1998
and IP figures therefore, simply shows the impact of the
first quarter of 1999 to these indicators and cannot be
considered as invalidating the examination of the trends
established on the basis of these indicators. This claim
was therefore rejected.

The GOI furthermore argued that the period of injury
assessment, which covered 1996 to the IP, was different
from the period where dumping was assessed, i.e. the IP.
As these two periods did not coincide, the conclusions
on injury were considered by the GOI as legally flawed.
It was moreover argued that if the basis for the injury
assessment was set at 1998, the trends of all indicators
would be significantly different.

The purpose of the injury investigation is to evaluate the
effect of the dumped imports on the economic situation
of the Community industry during the IP. This entails a
finding of injury during the IP. In order to make such
analysis, trends are established for a number of indica-
tors on the basis of information relating to a number of
years preceding the IP. Therefore, a comparison of indi-
cators between the IP and one specific previous year, as
suggested by the GOI, does not affect the results of the
analysis derived therefrom. Indeed, it is the trends of the
indicators which are examined over a number of years
up to the IP and not the absolute comparison of figures
of the IP with any particular year that precedes it, which
are relevant to reach a conclusion on injury.

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4.4. Consumption in the Community

4.5.2. Price undercutting

(88)

Two exporting producers argued that the consumption
in the Community set out in recital 65 of the provi-
In
sional duty Regulation was significantly incorrect.
particular, they argued that the production, sales and
stocks figures of the Community industry could not be
reconciled. In addition, they claimed that the Commis-
sion did not reveal the basis upon which the determina-
the non-cooperating
tions concerning the sales of
Community producers was estimated.

(89) As regards the reconciliation of the consumption figures,
it should be noted that one Community producer related
to a company belonging to the Community industry
closed down before the IP. Therefore, no reliable infor-
mation on its production and production capacity could
be obtained from this company. As far as sales and
stocks information is concerned, this company made its
sales exclusively through the related company belonging
to the Community industry. Therefore, reliable informa-
tion relating to sales and stocks was obtained from the
latter company covering the whole period considered
and the data were reconciled appropriately.

(90)

Finally, the Commission estimated the sales volume of
the non-cooperating Community producers in the provi-
sional duty Regulation on the basis of facts available. For
one non-cooperating producer the figures included in its
partial reply to the Commission's questionnaire had
been used, whereas for the others the figures indicated in
the complaint were used.

(91)

In the light of the above explanations, the consumption
figures indicated in recital 65 of the provisional duty
Regulation are confirmed.

(96)

4.5. Imports of PSF into the Community from the

countries concerned

4.5.1. Cumulative assessment of imports

Some exporting producers argued that the imports of
PSF from Thailand should not be assessed cumulatively
with the imports from Australia and Indonesia because
they represented less than 1 % of consumption in 1996
and 1997.

imports

from a

In the context of cumulation, it is considered that the
assessment of whether
country
concerned by an anti-dumping investigation are negli-
gible should exclusively be made during the IP. Indeed,
dumping margins, as well as the existence of injury are
established during the IP. Since the imports from Thai-
land were above negligible levels during this period, the
above claim was rejected.

(92)

(93)

(97)

(98)

(94)

(95)

Some exporting producers claimed that the Commission
did not take into account differences in quality of types
of PSF in determining price undercutting leading to
incorrect results. In their opinion, the price comparison
should be performed separately for the first and lower
quality products, as well as for the recycled PSF types.
They also claimed that an adjustment for level of trade
should have been granted, given that their sales were
mainly destined to wholesalers and distributors whereas
the Community industry mainly sold PSF to end-users.

Following these claims, prices were compared separately
for lower quality and recycled PSF and it was considered
that an adjustment for level of trade differences should
be granted to all the exporting producers including those
which were only selling to wholesalers and distributors.
The results of this price comparison showed slightly
higher undercutting margins than those established at
the provisional stage for Australia and slightly lower for
Indonesia and Thailand. The results of the revised under-
cutting calculations expressed on the Community indus-
try's turnover, taking into account both of the above
claims, ranged between 24,9 % and 46,8 % for the coun-
tries concerned and between 17,7 % and 61 % for indi-
vidual companies.

4.6. Economic situation of the Community industry

4.6.1. General

The RTG and one exporting producer claimed that,
based on an interpretation of the WTO ADA, the exam-
ination of the economic situation of the Community
industry requires an evaluation of all relevant economic
factors and indices having a bearing on the state of that
industry, including factors such as productivity, return
on investments, the magnitude of the actual margin of
dumping, negative effects on cash flow, wages and
growth.

Furthermore, they contested the accuracy of the data
provided in the provisional duty Regulation for certain
injury factors.
In their opinion, although the seven
Community producers constituting the Community
industry in the present investigation were the same as in
a previous proceeding, the data provided for some injury
factors were different. They therefore requested disclo-
sure of the names of the companies which participated
in the previous proceeding.

It should be recalled in this regard that Article 3(5) of
the basic Regulation lists a number of
factors and
economic indicators and the Commission collected
information which enabled it to consider all factors and
indices which were decisive for a meaningful analysis of
the state of the Community industry. It follows that the
claim that the Commission's analysis was not complete
is not valid.

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Official Journal of the European Communities

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(99)

It is confirmed that the seven Community producers
which constituted the Community industry in the
previous proceeding were not the same as in the current
proceeding. However, the request for disclosure could
not be accepted given that the RTG and the exporting
producer in question were not interested parties in that
previous proceeding.

(104) On this basis,

it is considered that the claims of the
GOA are unfounded. Accordingly, the data provided, the
method described for assessing production capacity for
PSF and the conclusions contained in recitals 72 to 74
of the provisional duty Regulation are hereby confirmed.

4.6.2. Production, capacity and capacity utilisation

(100) The Government of Australia (hereafter ‘GOA’) contested
the method used by the Commission to assess the
production capacity of the Community industry for the
the decrease in
product concerned.
production capacity by 7 % was determined with regard
to capacity used for the production of other products
and was therefore incorrect. The GOA considered that
production capacity for PSF should have been assessed
exclusively on the actual production of the PSF covered
by the investigation.

In its opinion,

(101)

In any event, the GOA considered that the reduction in
the Community industry's production capacity was not
compatible with a finding of material
firstly
because this reduction did not allow the Community
industry to participate in the considerable growth of the
(+ 27 %) during the period considered; and
market
secondly, because the reduction in capacity was moti-
vated by the fact that production was oriented to more
profitable products than PSF.

injury:

(102) With respect to the assessment of production capacity, it
should be underlined that
the product concerned is
produced on the same production lines as other prod-
ucts of the same family. It is therefore impossible and
meaningless to directly identify the actual capacity exclu-
sively installed for one product as compared to all the
products produced on the same production lines.
In
actual fact, the assessment of production capacity for
PSF was based on a ratio comparing the actual produc-
tion of PSF to the total production of all products
produced on the same production lines. Consequently,
contrary to the claim made by the GOA, the assessment
of production capacity for PSF takes into account the
actual production of PSF.

(103) Furthermore, it should be noted that the switch from the
production of PSF to the production of other products
was motivated mainly by the long-term losses incurred
by the Community industry on production and sales of
PSF facing continued unfair competition from dumped
and subsidised imports from third countries. The reduc-
tion in capacity is therefore particularly relevant for the
determination of injury but more specifically for the
analysis of the causal link between the dumped imports
and the injury suffered by the Community industry
discussed below.

4.6.3. Sales prices of the Community industry

(105) Following a more detailed analysis of the Community
industry's sales prices, the Commission found that the
figures indicated in the table of recital 76 of the provi-
sional duty Regulation should be slightly revised as
follows:

Average sales price

1996

1997

1998

IP

Community
(1996-100)

industry - Index

100

92

92

88

(106) Some exporting producers argued that

the above
decrease in the Community industry's sales prices should
be seen in the light of the significant decrease in raw
material purchase price in particular during the IP.
Accordingly, the decrease in sales price does not consti-
tute a valid indicator of injury in the present case.

(107)

In this respect, it should be clarified that in recital 79 of
the provisional duty Regulation the 31 % decrease in
cost of manufacturing should in fact read 31 % decrease
on cost of raw materials. The Commission made an
analysis on the impact of the decrease of raw material
costs on sale prices. The analysis showed that for the
overall Community industry the above decrease in raw
material costs represented around 23 % of total cost of
production, or 21 % of sales price between 1996 and
the IP. On this basis, the statement made in recital 79 of
the provisional duty Regulation that the cost of produc-
tion was reduced faster than sales prices is hereby
confirmed. This situation in fact allowed profitability to
be increased by 10,7 percentage points in absolute terms
during the period considered (from – 4 % in 1996 to
6,7 % in the IP).

(108) However,

it

the evolution of

is considered that

the
Community industry's sales price should be seen in the
light of the price evolution of the countries concerned.
Indeed, as stated in recital 69 of the provisional duty
Regulation it is recalled that PSF imported from the
countries concerned followed a continuous decreasing
tendency
the period considered. The
decrease was as high as 22 % during that period. If the
Community industry would have followed this trend it
would still have incurred losses at the same level as in
1996.

throughout

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14.7.2000

the Community industry did not

(109) Finally, when analysing the Community industry's prices
on the Community market, one should bear in mind
that
reach the
minimum level of profit of 10 % during the IP. Under
these
the
Community industry's sales prices constitute a relevant
injury indicator given it had a bearing on the state of the
industry.

circumstances,

considered

that

is

it

4.6.4. Profitability of the Community industry

market for like products and specifies no one or more of
these factors can necessarily give decisive guidance for a
negative finding on injury.

(114) As indicated in recitals 82 to 85 of the provisional duty
Regulation regarding the conclusions on the economic
situation of
the Community industry, profitability
achieved by the industry was not considered to be a
major indicator of the injury suffered by the Community
industry. Indeed, negative developments were observed
for most of the economic indicators pertaining to that
industry: market
sales
volume, sales prices, stocks,
investments, employment
and significant price undercutting by dumped imports
from the countries concerned.

share, production capacity,

(110) The GOA claimed that in the absence of data relating to
the profitability of the Community industry prior to the
appearance of dumped imports, no proper assessment
could be made as to whether the injury suffered by the
Community industry was material.

(115) Based on the foregoing, since no further comments were
received regarding the profitability of the Community
industry, the conclusion that profitability during the IP is
inadequate is hereby confirmed.

injury.

Indeed,

profitability

(111) Some exporting producers claimed that the improve-
ment in the Community industry's profitability did not
indicate
significantly
improved over the period considered, namely from a
loss of around 4 % to a profit of over 6 %. They further
argued that
the
Community industry within the IP could not be further
increased with the current product mix of commodities
and specialities, unless more speciality PSF types would
be produced and sold by the Community industry.

the overall profit

achieved by

sales

prices

(112) The present investigation showed that its improvement
in profitability was mainly the result of both the restruc-
turing process undertaken by the Community industry
and the resulting reduction in sales, general and adminis-
trative costs and the decrease of
the raw materials
purchase prices. Production costs were reduced faster
than
the
decreased,
Community industry to return to profit in 1998. Never-
theless,
it was emphasised that this improvement in
profitability may only be temporary and any adverse
factors, particularly possible unfavourable developments
in raw material prices, could have negative implications
on the current profitability. This statement was rein-
forced by the fact that the main raw materials used in
the PSF industry are largely influenced by the price of
crude oil.

allowing

thus

4.6.5. Market share

(116)

It has to be recalled that as mentioned in recital 77 of
the provisional duty Regulation, the market share held
by the Community industry decreased significantly from
68 % to 50,3 % of the total Community market from
1996 to the IP.

(117) Some exporting producers argued that the Community
industry's loss in market share has to be seen in the light
of the cost disadvantage it suffers as compared to the
countries concerned.
it cannot be
expected that the industry could maintain its market
share given that its production costs are significantly
higher than those of the exporting producers concerned.

In their opinion,

(118) This argument was considered not

relevant

in the
context of an anti-dumping investigation. In such an
investigation, it has to be established whether imports
are dumped and cause injury to the Community
industry, as this was established in the present case. This
being said, exporting producers can fully reflect cost
advantages they may have in their sales prices, as long as
this is done both on the domestic and export markets.

(113)

It should also be noted that an improvement in profit-
ability during the period considered does not automati-
cally lead to the conclusion that
the Community
industry did not suffer material injury. The assessment as
to whether
the injury suffered by the Community
industry was material cannot only be based on the prof-
itability nor can it be based on a comparison of profit-
ability between 1996 and the IP. Indeed, the provisions
of the basic Regulation enumerate a number of factors
among which the volume of dumped imports and the
effect of dumped imports on prices on the Community

4.6.6. Conclusion

(119) Based on the foregoing, it is considered that the above
arguments and claims are not such as to change the
findings made in the provisional duty Regulation. Conse-
quently, the contents of recitals 82 to 85 of the provi-
sional duty Regulation and the conclusion that
the
Community industry suffered material injury during the
IP is hereby confirmed.

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5. CAUSATION

(125)

5.1. Effect of dumped imports

(120) The GOA claimed that there is no evidence that the
injury suffered by the Community industry was caused
by the limited volumes imported from Australia. The
GOA claimed that
the market share of Australian
imports was too limited (2 % of consumption) to have
any influence on prices on the Community market.
Rather, they had to follow the price trends imposed by
the large operators on the Community market. Accord-
ingly, the GOA suggested that injury, if any, was caused
by large imports from other third countries.

(126)

In addition, it should be recalled that prices of dumped
imported PSF from all the countries concerned were
undercutting the Community industry's prices on the
Community market having a significant negative impact
on the economic situation of the Community industry.
This finding is reinforced by the fact that the PSF market
is transparent and that, therefore, price differentials or
low priced offers can have a price depressing effect.

finding that

is furthermore considered that

It
the GOA did not
provide any evidence which would contradict the provi-
the Community industry suffered
sional
material
low-priced dumped
the conclusion that dumped
imports. Accordingly,
imports, taken in isolation, had caused material injury to
the Community industry is hereby confirmed.

injury as a result of

(121) Similarly, the RTG claimed that since the imports from
Thailand were negligible in 1996 and 1997, they could
not cause injury to the Community industry and there-
fore the analysis of the impact of these imports should
begin from 1998.

(122) The RTG and one Indonesian exporting producer argued
that in view of the data published in the provisional
duty Regulation the conclusion reached by the Commis-
sion that the Community industry has been weakened
was wrong. Their statement was based particularly on
the improvement in the Community industry's profit-
ability during the IP. It was furthermore based on an
analysis of market share and sales indicators pertaining
to both the current investigation and the corresponding
1996 indicators from the expiry review concerning PSF
from Taiwan and Korea, as evidenced by Regulation (EC)
No 1728/1999 (1).

(123) The same parties further claimed that some producers
included in the definition of the Community industry
concentrated on the production of high-profit speciality
products. Accordingly, it could not be concluded that
the Community industry was vulnerable particularly to
Indonesian imports which are largely made of regular
PSF. In their opinion, the very high profits obtained on
speciality fibres indicated that the Community industry
is largely shielded from the effects of imports.

(124) Regarding the arguments raised by the GOA on its
market share, it is recalled that imports from Australia
were found to be clearly above the de minimis level
during the IP. In addition, it was found that all condi-
tions required for a cumulated analysis were met. In
these circumstances, comments concerning individual
market shares held by individual countries during the IP
and in previous to the IP years were not considered
relevant. The same remark applied to the similar argu-
ment raised by the RTG.

(1) OJ L 204, 4.8.1999, p. 3.

(127) The development of the Community industry's profit-
ability was extensively analysed in recital 79 of
the
provisional duty Regulation and further information has
been given in section 4.6.4. above. In this respect,
it
should be noted that the statement that the Community
industry is concentrating in high-value PSF types is not
correct. Indeed, during the IP, the Community industry's
sales of the so-called commodity PSF types, which are
mainly imported from the countries concerned, repre-
sented over 72 % of its total sales. This finding therefore
leads to confirm the conclusion that the Community
industry as a whole is affected by low-priced dumped
imports.

(128) Regarding the validity of the data for 1996 extracted
from the expiry review concerning PSF from Taiwan and
Korea, as explained in recital 99, the Community produ-
cers which constituted the Community industry in this
expiry review were not the same as those constituting
the Community industry in the present proceeding.
Consequently,
it is impossible to establish a coherent
and reliable trend on the basis of the economic indica-
tors reported for 1996 in this expiry review and on
figures for subsequent years reported in the present
proceeding. Such an approach would lead to erroneous
and meaningless results.

5.2. Other factors

5.2.1. Currency fluctuations

(129) The GOA argued that the Commission failed to look at
the effect that exchange rate fluctuations have had on
import prices from Australia, specifying that during the
investigation period PSF imported from Australia had
benefited from a favourable exchange rate appreciation.

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(130)

(131)

In this respect it should be noted that imports from this
country were invoiced in USD, in DEM and in GBP and
not in AUD on the Community market. The parity of
the Australian currency was therefore not relevant in the
determinations made.

it

that

should be pointed out

In any event,
the
Australian currency depreciated during the first seven
months of the IP and subsequently appreciated during
the next five months of the IP, as compared to its parity
to the ECU/EUR of the first month of the IP. Conse-
quently, there was no constant decreasing trend of the
Australian currency during the IP.

5.2.2. Raw material prices in the exporting countries

(132) The RTG further argued that for the determination of
imports on the
the impact of the prices of the Thai
Community industry the Commission should have
considered the sharp decrease of the raw material prices
in Thailand.

(133)

It is considered that the above argument is irrelevant for
the analysis of the cause of injury to the Community
industry. Indeed, the cost of production factors in any
exporting country is relevant only to the dumping deter-
minations. The important parameter for injury and
causation considerations is the price that the imported
product concerned is sold in the Community market.

5.3. Conclusion

(134) Given that no other new arguments were received
the injury suffered by the
regarding the cause of
the conclusion that dumped
Community industry,
imports, taken in isolation, had caused injury to the
Community industry, as stated in recital 99 of the provi-
sional duty Regulation,

is hereby confirmed.

6. COMMUNITY INTEREST

6.1. Interest of the Community industry

(135) Since no comments were received regarding the above
issues, the findings on the interest of the Community
industry cited in recital 101 of the provisional duty
Regulation are hereby confirmed.

6.2. Impact on users

(136) Following the publication of the provisional duty Regu-
lation, a number of Community users claimed that the
imposition of anti-dumping duties would have negative
effects on their competitiveness on the downstream
products and would ultimately threaten their survival. In
their opinion, the imposition of anti-dumping duties
would trigger price increases which users would need to
reflect
in downstream products. This development
would in turn trigger an increase in imports of lower-

priced downstream products from other third countries
and from the countries concerned by this investigation.

(137)

In addition, Eurofibrefill reacted to the provisional duty
Regulation and argued that specific PSFNS were either
not produced at all by the Community industry, or not
in sufficient quantities to cover the Community demand.
In their opinion, this situation was due to the fact that
the Community industry mainly focused on the produc-
tion of PSFS. Therefore it would have to continue to
source PSFNS from abroad, despite the proposed imposi-
tion of anti-dumping duties.

(138) Eurofibrefill

the impact of

further argued that

the
proposed measures on users should be also assessed
taking into account the existing anti-dumping and anti-
subsidy measures on imports from other countries (e.g.
from Taiwan). In their opinion, the Community industry
continuously asked for protection and that in the near
future all sources of supply would be subject to anti-
dumping or countervailing measures.

(139)

(140)

(141)

the claim of Eurofibrefill,

its
In support of
members provided
the Commission with letters
addressed to producers included in the Community
industry showing that these producers were not able to
provide the requested types of PSF in the short term.

two of

set out

in the Notice of

It should be noted that certain of the above users who
came forward after the imposition of provisional duties
either did not make themselves known within the time
limit
the
proceeding, or did not reply to the questionnaire sent by
the Commission at that stage. Consequently, most of
them could not be considered as interested parties under
Article 21(2) of the basic Regulation and their views
could not, normally, be taken into account at the defin-
itive stage of the proceeding.

Initiation of

In addition, as stated in recital 102 of the provisional
duty Regulation, the overall level of cooperation in the
Community interest investigation was very low. The user
companies who participated in the investigation only
represented around 4 % of total consumption in the
Community market. It was therefore considered that at a
broader level no real concern about the impact of the
imposition of anti-dumping measures on PSF on their
activities existed. In any event, it was considered that no
meaningful conclusions could be drawn from such
limited information.

(142) Regarding

as

the

that

claim by

Eurofibrefill,

the
Community industry mainly focused on PSFS, it should
the
already
be noted that,
Community industry production and sales of PSFNS
types represented about 75 % of its total production
during the IP. The claim therefore that the Community
industry focused on PSFS has not been confirmed by the
investigation.

explained above,

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(143) As regards the availability of specific PSF types,

it is
recalled that there are no or only minor technical diffi-
culties in producing any type of fibre. As far as the
Community industry is concerned and as already stated
in recital 20, it was found that it could produce all types
investment.
of PSF without any significant additional
The important parameter influencing the decision to
produce certain types was whether the price the user
was ready to pay covered the costs of production and
allow a profit to be earned. As long as exporting produ-
cers practising dumping were taking advantage of unfair
trade practices and offered PSF at low prices on the
Community market, the Community industry was not
able and willing to compete and therefore did not
produce these types in the prevailing market circum-
stances. However, for the future it could be expected
that once a situation were reestablished in which the
exporting producers carried out their exports at fair
market conditions,
the Community industry would
resume production of such product types.

(144)

In any event, the information available on the cost struc-
ture of the user industry, the level of the proposed
measures and the share between dumped imports and
the other sources of supply indicate that:

— PSF represents between 25 % and 45 % of the users
total cost of production of downstream products;

— the average anti-dumping duty is about 22 % for the

countries concerned;

— the share of dumped imports

is 9 % of

total

consumption of PSF.

The proposed measures may thus have the impact of
increasing the cost of production of users by between
0,5 % to a maximum of 0,9 %. This likely maximum
increase is considered to be relatively low when
compared to the positive impact of the proposed meas-
ures
the
restoring
Community market.

competition

effective

on

in

(145) This analysis on the impact of the proposed measures
on users therefore indicated that the imposition of anti-
dumping measures was not likely to trigger an increase
in the import of cheap downstream products into the
Community. This conclusion was also reached in the
absence of any evidence from the users concerned
substantiating their claim, e.g. that past measures on this
product had led to such effects.

(146) Furthermore, regarding the impact of the existing meas-
ures on the cost of production of the user industries, it
should be noted that the anti-dumping measures in force
on PSF against third countries are already reflected in the
cost information, used by the Commission in the current
Community interest investigation.

(147) As far as the countervailing measures imposed in the
framework of the parallel anti-subsidy proceeding are
concerned, it has been established that their impact may
cause an increase of between 0,1 and 0,16 % on the cost
of production of the user companies. Consequently the
total impact of the proposed anti-dumping and counter-
vailing measures would lead to a possible increase

between 0,6 and 1,06 % of the cost of production of the
overall users industries.

(148)

In this context, it should be recalled that the share of the
imports from countries concerned by all anti-dumping
proceedings, including the present proceeding and the
parallel anti-subsidy proceeding, represented about 37 %
of the total imports to the Community market during
the IP. It therefore follows that there are other significant
sources of supply, to which no anti-dumping or coun-
tervailing duties apply.

(149) As the examination of the above arguments submitted
by the user companies does not lead to new conclusions,
the considerations of recital 105 of the provisional duty
Regulation on the impact of the proposed measures to
the users is hereby confirmed.

6.3. Conclusion

(150) The new arguments

received regarding the deter-
mination of the Community interest, are not considered
to be such as to reverse the conclusion that no compel-
ling reasons exist against
the imposition of anti-
dumping measures. The provisional findings are there-
fore confirmed.

7. DEFINITIVE DUTY

(151)

In view of the conclusions reached regarding dumping,
injury, causation and Community interest, it is consid-
ered that definitive anti-dumping measures should be
taken in order to prevent further injury being caused to
the Community industry by dumped imports from
Australia, Indonesia and Thailand.

7.1. Injury elimination level

(152) As explained in recital 108 of the provisional duty Regu-
lation, a non-injurious level of prices was determined
which would cover the Community industry's cost of
production and a reasonable profit which would be
obtained in the absence of dumped imports from the
countries concerned.

(153) The RTG and some exporting producers argued that
while it was mentioned in the provisional duty Regula-
the 6,7 % profitability achieved by the
tion that
Community industry during the IP was still inadequate
in the present proceeding, it was considered reasonable
in previous proceedings (1) involving PSF and PTY (poly-
ester textured filament yarn). On this basis they ques-
tioned the level of the required profit margin of 10 % in
the present proceeding which in their opinion the
Commission did not justify.

(1) PSF from Belarus, PTY (Polyester textured filament yarn) from Indo-

nesia and Thailand.

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14.7.2000

(154) Other exporting producers argued that the Commission's justification in the provisional duty
Regulation that the required profit should ensure the Community industry's long-term viability was
not valid according to the latest jurisprudence from the Court of First Instance on this issue.

(155) As far as the required profit is concerned, it should be noted that the Commission indicated in recital
79 of the provisional duty Regulation that a margin of 10 % should be considered as a minimum
that would ensure the viability of the industry. This statement should be seen in the light of the
contents of recital 101 of the provisional duty Regulation which indicates that the Community
industry suffered from low-priced dumped imports from various countries and incurred losses for a
decade. In this context, the profit achieved by the Community industry before the appearance of
dumped imports from Australia,
Indonesia and Thailand is not a reliable basis on which to
determine such profit.

(156)

In addition, it must be noted that, as acknowledged by the exporting producers themselves, the PTY
industry is completely different from the PSF industry. Therefore, it was considered that the profit for
PTY is not relevant for establishing the profit for PSF.

(157) Furthermore, it is considered that the level of profit deemed reasonable for the Community industry
in 1994 should not necessarily determine the margin to be used more than four years later. Firstly,
because the Community industry continued to incur financial losses after 1994. Secondly because
the reasonable profit in 1994 was determined having regard to the long term needs in investments at
that time whereas in the present case, due account was taken of the long term losses incurred by the
Community industry and, as pointed out by some exporting producers, the level of profit that could
be achieved in the absence of dumped imports. In any event, however, even by employing the
suggested profit margin of 6 %, the level of the proposed measures would not change as these
measures would still be based on the dumping margins.

(158) Finally, it should be underlined that the above exporting producers did not provide any evidence
showing that the approach of the Commission on the reasonable level of profit was not correct and
they did not make any relevant analysis demonstrating what such margin should be.

(159) Consequently, based on the foregoing, the contents of recital 108 of the provisional duty Regulation

are hereby confirmed.

7.2. Form and level of the duty

(160)

In accordance with Article 9(4) of the basic Regulation the anti-dumping duty rates correspond to
the dumping margins, as the injury margins are found to be higher for all exporters in the countries
concerned.

(161) However, with regard to the parallel anti-subsidy proceeding, in accordance with Article 24(1) of
Regulation (EC) No 2026/97 (1) (hereinafter ‘the basic anti-subsidy Regulation’) and Article 14(1) of
the basic Regulation, no product shall be subject to both anti-dumping and countervailing duties for
the purposes of dealing with one and the same situation arising from dumping and from export
subsidization. In the present investigation, it was found that a definitive anti-dumping duty should be
imposed on imports of the product concerned originating in Australia, Indonesia and Thailand and
therefore, it is necessary to determine whether, and to what extent, the subsidy and the dumping
margins arise from the same situation.

(162)

In the parallel anti-subsidy proceeding it was found that in, inter alia, Thailand (all companies) and
Indonesia (only cooperating companies), the level of subsidisation was below the de minimis level and
therefore, no countervailing duty was imposed.

(1) OJ L 288, 21.10.1997, p. 1.

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Official Journal of the European Communities

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(163) With regard to Australia, a definitive countervailing duty corresponding to the amount of subsidy,
which was found to be lower than the injury margin, was proposed in accordance with Article 15(1)
of the basic anti-subsidy Regulation. All of the subsidy schemes investigated in Australia constituted
export subsidies within the meaning of Article 3(4)(a) of the basic anti-subsidy Regulation. As such,
the subsidies could only affect the export price of the Australian exporting producer, thus leading to
an increased margin of dumping. In other words, the definitive dumping margin established for the
sole cooperating Australian producer is partly due to the existence of export subsidies. In these
circumstances, it is not considered appropriate to impose both countervailing and anti-dumping
duties to the full extent of the relevant subsidy and dumping margins definitively established.
Therefore, the definitive anti-dumping duty should be adjusted to reflect the actual dumping margin
remaining after the imposition of the definitive countervailing duty offsetting the effect of the export
subsidies.

(164) For the non-cooperating Indonesian exporting producers, a definitive countervailing duty corre-
sponding to the amount of subsidy, which was found to be lower than the injury margin, was
proposed in accordance with Article 15(1) of the basic anti-subsidy Regulation. It was determined
that half of the subsidy schemes in Indonesia constituted export subsidies within the meaning of
Article 3(4)(a) of the basic anti-subsidy Regulation. As such, the subsidies could only affect the
export price of the Indonesian non-cooperating exporting producers, thus leading to an increased
margin of dumping. In other words, the definitive dumping margin established for these non-cooper-
ating Indonesian exporting producers is partly due to the existence of export subsidies. In these
circumstances, it is not considered appropriate to impose both countervailing and anti-dumping
duties to the full extent of the relevant subsidy and dumping margins definitively established.
Therefore, the definitive anti-dumping duty for the non-cooperating Indonesian exporting producers
should be adjusted to reflect the actual dumping margin remaining after the imposition of the
definitive countervailing duty offsetting the effect of the export subsidies.

(165) On the basis of the above, the definitive duty rates, expressed as a percentage of the cif Community
border price, customs duty unpaid, taking into account the results of the anti-subsidy proceeding, are
as follows:

Country

Company

Rate of anti-dumping
duty

Australia

Indonesia

All companies

P.T. Indorama Synthetics Tbk

P.T. Panasia Indosyntec

P.T. GT Petrochem Industries Tbk

P.T. Susilia Indah Synthetic Fiber Industries

P.T. Teijin Indonesia Fiber Corporation Tbk

All other companies

Thailand

Indo Poly (Thailand) Ltd.

Teijin Polyester (Thailand) Ltd.

Teijin (Thailand) Ltd.

All other companies

12,0 %

8,4 %

14,8 %

14,0 %

14,0 %

14,0 %

15,8 %

15,5 %

26,9 %

26,9 %

27,7 %

(166) The individual company anti-dumping duty rates specified in this Regulation were established on the
basis of the findings of the present investigation. Therefore, they reflect the situation found during
that investigation with respect to these companies. These duty rates (as opposed to the country-wide
duty applicable to ‘all other companies’) are thus exclusively applicable to imports of products
originating in the country concerned and produced by the companies and thus by the specific legal
entities mentioned. Imported products produced by any other company not specifically mentioned
in the operative part of this Regulation with its name and address, including entities related to those
specifically mentioned, cannot benefit from these rates and shall be subject to the duty rate
applicable to ‘all other companies’.

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(167) Any claim requesting the application of these individual company anti-dumping duty rates (e.g.
following a change in the name of the entity or following the setting up of new production or sales
entities) should be addressed to the Commission (1) forthwith with all relevant information,
in
particular any modification in the company's activities linked to production, domestic and export
sales associated with e.g. that name change or that change in the production and sales entities. The
Commission, if appropriate, will, after consultation of the Advisory Committee, amend the Regula-
tion accordingly by updating the list of companies benefiting from individual duty rates.

(168) Since sampling has been used in the investigation of dumping in Indonesia, a new exporters' review
pursuant to Article 11(4) of the basic Regulation with the objective of determining individual
dumping margins cannot be initiated in this proceeding as far as it concerns Indonesia. However, in
order to ensure equal treatment for any genuine new Indonesian exporting producer and the
cooperating companies not included in the sample for this country, it is considered that provision
should be made for the weighted average duty imposed on the latter companies to be applied to any
new Indonesian exporting producer who would otherwise be entitled to a review pursuant to Article
11(4) of the basic Regulation.

8. COLLECTION OF THE PROVISIONAL DUTY

(169)

In view of the magnitude of the dumping margins found for the exporting producers, and in light of
the seriousness of the injury caused to the Community industry, it is considered necessary that the
amounts secured by way of provisional anti-dumping duty under the provisional duty regulation be
definitively collected to the extent of the amount of definitive duties imposed if this amount is equal
or lower than the amount of the provisional duty. Otherwise, only the amount of the provisional
duty should be definitively collected,

HAS ADOPTED THIS REGULATION:

Article 1

A definitive anti-dumping duty is hereby imposed on imports of synthetic staple fibres of polyesters,
1.
not carded, combed or otherwise processed for spinning, falling within CN code 5503 20 00 and origin-
ating in Australia, Indonesia and Thailand.

The rate of the definitive duty applicable to the net free-at-Community-frontier price, before duty, for

2.
products produced by the companies indicated shall be as follows:

Country

Company

Rate of duty

TARIC additional
code

Australia

All companies

12,0 %

—

Indonesia

P.T. Indorama Synthetics Tbk,
Graha Idma, 17th floor,
Jl. HR Rasuna Said Blok X-1,
Kav. 1-2, P.O. Box 3375
Jakarta 12950, Indonesia

P.T. Panasia Indosyntec
Jl. Garuda 153/74,
Bandung 40184, Indonesia

P.T. GT Petrochem Industries Tbk,
Exim Melati Building - 9th floor,
Jl. M.H. Thamrin Kav. 8-9,
Jakarta 10230, Indonesia

8,4 %

A051

14,8 %

A052

14,0 %

A053

(1) European Commission, Directorate-General Trade, Directorade C, DM 24-8/38, Rue de la Loi/Wetstraat 200, B-1049

Brussels/Belgium

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Official Journal of the European Communities

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Country

Company

P.T. Susilia Indah Synthetic Fiber Industries,
Jl. Kh. Zainul Arifin Kompleks
Ketapang Indah
Blok B 1 No.: 23,
Jakarta 11140, Indonesia

P.T. Teijin Indonesia Fiber Corporation Tbk,
5th floor Mid Plaza 1,
Jl Jend. Sudirman Kav. 10-11,
Jakarta 10220, Indonesia

All other companies

Thailand

Indo Poly (Thailand) Ltd.
35/8 MOO 4, Tambol Khunkaew
Amphur Nakhornchaisri, Nakhornprathom 73120
Thailand

Teijin Polyester (Thailand) Ltd.
19th floor, Ploenchit Tower
898 Ploenchit road, Lumpinee, Patumwan
Bangkok 10330, Thailand

Teijin (Thailand) Ltd.,
19th floor, Ploenchit Tower
898 Ploenchit road, Lumpinee, Patumwan
Bangkok 10330, Thailand

Rate of duty

TARIC additional
code

14,0 %

A054

14,0 %

A055

15,8 %

15,5 %

A999

A056

26,9 %

A155

26,9 %

A155

All other companies

27,7 %

A999

3.

Unless otherwise specified, the provisions in force concerning customs duties shall apply.

Article 2

Where any new exporting producer in Indonesia provides sufficient evidence to the Commission that

— it did not export to the Community the products described in Article 1(1) during the IP,

— it is not related to any of the exporters or producers in Indonesia which are subject to the anti-dumping

measures imposed by this Regulation,

— it has actually exported to the Community the products concerned after the IP on which the measures
are based, or it has entered into an irrevocable contractual obligation to export a significant quantity to
the Community,

the Council, acting by simple majority on a proposal submitted by the Commission after consulting the
Advisory Committee, may amend Article 1(2) by adding the new exporting producer to the companies
subject to the weighted average duty rate listed in that Article.

Article 3

The amounts secured by way of the provisional anti-dumping duty on imports originating in Australia,
Indonesia and Thailand under the provisional duty Regulation shall be collected at the rate of the duty
definitively imposed by this Regulation. Amounts secured in excess of the rate of definitive anti-dumping
duty shall be released. In cases where the rate of the definitive duty imposed is higher than the rate of the
provisional duty, only the amounts secured at the level of the provisional duty should be definitively
collected.

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

Article 4

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This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 10 July 2000.

For the Council

The President

H. VÉDRINE