Proposal for a Council Regulation imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain polyethylene terephthalate originating in India, Indonesia, Malaysia, the Republic of Korea, Taiwan and Thailand
Date: 2000-11-06
Institutions: European Commission
Subjects: anti-dumping duty, import policy, plastics, third country

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 06.11.2000
COM(2000) 717 final

Proposal for a

COUNCIL REGULATION

imposing a definitive anti-dumping duty and collecting definitively the provisional duty
imposed on imports of certain polyethylene terephthalate originating in India,
Indonesia, Malaysia, the Republic of Korea, Taiwan and Thailand

(presented by the Commission)

EXPLANATORY MEMORANDUM

Proposal for a Council Regulation imposing a definitive anti-dumping duty and collecting
definitively the provisional duty imposed on imports certain polyethylene terephthalate
originating in India, Indonesia, Malaysia, the Republic of Korea, Taiwan and Thailand

On 6 November 1999, the Commission initiated an anti-dumping investigation with regard to
imports into the Community of certain polyethylene terephthalate originating in India,
Indonesia, Malaysia, the Republic of Korea, Taiwan and Thailand.

The Commission, by Regulation (EC) No 1742/2000 imposed a provisional anti-dumping
duty on certain polyethylene terephthalate originating in India, Indonesia, Malaysia, the
Republic of Korea, Taiwan and Thailand.

The attached proposal for a Council Regulation is based on the definitive findings of
dumping, injury, causation and Community interest which confirmed that the provisional anti-
dumping measures were warranted.

It is therefore proposed that the Council adopts the attached proposal for a Regulation which
should be published in the Official Journal no later than 5 December 2000.

2

Proposal for a

COUNCIL REGULATION

imposing a definitive anti-dumping duty and collecting definitively the provisional duty
imposed on imports of certain polyethylene terephthalate originating in India,
Indonesia, Malaysia, the Republic of Korea, Taiwan and Thailand

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 Community1, and in
particular Articles 9 and 10(2) thereof,

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

Whereas:

(1)

(2)

(3)

(4)

1

2

3

A. PROVISIONAL MEASURES

The Commission, by Regulation (EC) No 1742/20002, (“provisional Regulation”),
imposed provisional anti-dumping duties on imports of certain polyethylene
terephthalate originating in India, Indonesia, Malaysia, the Republic of Korea, Taiwan
and Thailand.

In the parallel anti-subsidy proceeding, the Commission also imposed, by Regulation
(EC) No 1741/20003 a provisional countervailing duty on imports of certain
polyethylene terephthalate originating in India, Malaysia, Taiwan and Thailand.

It is recalled that the investigation of dumping and injury covered the period from 1
October 1998 to 30 September 1999 ("IP"). The examination of trends relevant for the
injury analysis covered the period from 1 January 1996 up to the end of the IP
("analysis period").

B. SUBSEQUENT PROCEDURE

Subsequent to the disclosure of the essential facts and considerations on the basis of
which it was decided to impose anti-dumping measures, several interested parties
submitted comments in writing. In accordance with the provisions of Article 20(1) of

OJ L 56, 6.3.1996, p. 1. Regulation as last amended by Regulation (EC) No 2238/2000 (OJ L 257, 11.10.2000,
p. 2).
OJ L 199, 5.8.2000, p. 48.
OJ L 199, 5.8.2000, p. 6.

3

Regulation (EC) No 384/96 (the "basic Regulation"), all
requested a hearing were granted an opportunity to be heard by the Commission.

interested parties who

The Commission continued to seek and verify all information deemed necessary for
the definitive findings.

An additional verification visit was carried out at the premises of the following
company related to a Korean exporting producer which had replied to the
questionnaire:

–

SK Global Belgium NV (Antwerp)

All parties were informed of the essential facts and considerations on the basis of
which it was intended to recommend the imposition of definitive anti-dumping duties
and the definitive collection of amounts secured by way of provisional duties. They
were also granted a period within which they could make representations subsequent
to this disclosure.

The oral and written arguments submitted by the parties were considered, and, where
deemed appropriate, taken into account for the definitive findings.

Having reviewed the provisional findings on the basis of the information gathered
since then,
in the provisional
Regulation should be hereby confirmed.

the main findings as set out

is concluded that

it

(5)

(6)

(7)

(8)

(9)

C. PRODUCT CONCERNED AND LIKE PRODUCT

1.

Product concerned

(10)

The provisional Regulation defined the product
concerned as polyethylene
terephthalate ("PET") with a coefficient of viscosity of 78ml/g or higher, according to
DIN (Deutsche Industrienorm) 53728, falling within CN code 3907 60 20 and CN
code ex 3907 60 80 (TARIC code 3907 60 80 10). Since no new observations were
received concerning this definition, the provisional findings as regards the product
concerned are hereby confirmed.

2.

Like product

(11)

In recital (12) of the provisional Regulation, the Commission found that PET produced
by the Community industry and sold on the Community market as well as PET
produced in the countries concerned and exported to the Community were like
products, since there were no differences in the basic physical and technical
characteristics and uses of the existing different types of PET. Since no new evidence
was submitted on this,
the provisional findings as regards the like product are
confirmed.

1.

Normal value

D. DUMPING

(12)

The Indonesian exporting producer, for whom Article 18(1) of the basic Regulation
was applied, because it was found that
it had supplied false and misleading
information, contested the Commission’s findings. It considered that the use of Article

4

18 was not warranted and that the rejection of its selling, general and administrative
(“SG&A”) expenses was an unduly harsh measure.

(13)

The Commission re-examined all
information submitted by the company in its
response to the questionnaire and during the on-the-spot verification. It was confirmed
that the activities of the company’s organisational unit, which allegedly only dealt
with financial activities and which supposedly had no relation to the product
concerned, were much broader than reported. In fact, all normal activities of a head
office were performed by this unit. It was also confirmed that the activities of and the
expenses incurred by that unit could not be considered to be entirely unrelated to the
production and sales of the product concerned. It also remained clear that the company
provided false and misleading information in respect of the activities performed by the
head office.

(14)

It was therefore fully justified and in line with Article 18(1) of the basic Regulation to
disregard the SG&A expenses as reported by the company.

Normal value based on domestic sales

(15)

(16)

(17)

Two Taiwanese companies requested that the determination of the sales made in the
ordinary course of trade should be made on a quarterly basis and not on a yearly basis.
The reason advanced to support this claim was that during the IP there were significant
variations in costs and prices of the product concerned, mainly due to changes in the
price of raw materials.

Fluctuations in costs and prices during the IP are almost inevitable in any anti-
dumping investigation. To take account of these for the purpose of establishing which
sales were made in the ordinary course of trade the Commission has consistently
applied the methodology of comparing individual domestic prices with the weighted
average cost of production for the IP. It is considered that the particular situation of the
justify the deviation from the
two companies that made the request does not
methodology used for all companies concerned by the present proceeding. It would
furthermore be contrary to the consistent practice of the Commission to use different
time frames for the “ordinary course of trade test” (quarterly) and for the other steps of
the dumping calculation (yearly).

the relevant

It should finally be noted that
information (e.g. quarterly cost of
production figures) was submitted for the first time following the disclosure of the
provisional findings. This despite the fact that it relates to facts that were well known
to the companies before the on-spot verification or their reply to the questionnaire.
Therefore, the Commission would not have been, at this late stage of the investigation
in a position to verify the substantial amount of information necessary to modify the
methodology for establishing the profitability of domestic sales.

(18) One Korean company disputed the Commission's methodology for allocating the

amount of SG&A as set out in recital (50) of the provisional Regulation.

(19)

The exporting producer, after disclosure of the provisional findings presented new
figures, but despite a request by the Commission, did not provide any evidence or
explanation of the allocation methodology used. Consequently the claim of the
company was rejected.

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Constructed normal value

(20) One Indonesian exporting producer contested the profit margin used in order to
construct normal value for one type of PET it had exported to the Community.

(21)

The Commission’s approach of using the actual profit margin on sales of other types
of PET made in the ordinary course of trade by this exporting producer on its domestic
market is fully in line with Article 2(6) of the basic Regulation (see recital (21) of the
provisional Regulation). Therefore the provisional findings are confirmed.

(22) One of the Malaysian exporting producers challenged the turnover based methodology
applied by the Commission for the reallocation of certain SG&A expenses used for the
purpose of constructing normal value in the provisional Regulation.

(23)

(24)

(25)

The verification revealed that
the allocation key applied by the company in its
questionnaire response for certain expenses was inaccurate and inappropriate and had
not been used historically. Consequently, and in the absence of a more appropriate
allocation key, the relevant SG&A expenses were reallocated on the basis of turnover
pursuant to Article 2(5) of the basic Regulation. The approach adopted on this matter
in the provisional Regulation is thus confirmed.

Two Indonesian exporting producers argued that normal values for companies with no
sales in the ordinary course of trade on the domestic market should be based, in
accordance with Article 2(1) of the basic Regulation, on domestic sales prices of
another company rather than on a constructed normal value.

In recital (19) of the provisional Regulation, it was already explained why domestic
sales prices of another company could not be used. Neither of the two exporting
producers concerned provided any evidence invalidating the Commission’s reasoning
to use constructed normal value. The Commission nevertheless re-examined all
information submitted and the methodology used for provisional measures is
consequently confirmed.

(26) One Korean company argued that the Commission should not have used its own
SG&A expenses when constructing normal value, as the domestic sales to which these
expenses related were not made in the ordinary course of trade. The company argued
that this was in contradiction with Article 2(6) of the basic Regulation.

(27)

It is the Commission’s consistent practice, as pointed out also in recital (21) of the
provisional Regulation, to consider the actual domestic SG&A expenses reliable if the
total domestic sales volume of the company concerned is representative when
compared to the volume of export sales to the Community. In fact, the determining
factor to consider the SG&A expenses as being usable, is not whether those sales were
made at a profit, but whether a sufficiently representative amount of sales were made
on an arm's length basis. Therefore the provisional findings are confirmed.

(28) One Taiwanese company requested that the cost of production for the month of
September 1999 should not be taken into consideration due to the earthquake which
occurred in Taiwan.

(29) However, irrespective the fact whether or not an adjustment as such can be granted for
earthquakes or similar cases of force majeure, the company could not demonstrate
the
whether and to what extent

the earthquake affected the costs. Moreover,

6

Commission, on its own initiative analysed the alleged impact on the cost of
production and it was found that the quantity produced in September 1999 exceeded
the quantity produced in several other months of the IP while the increase in costs was
not higher than in other months of the IP. Consequently neither the quantity produced
in the month of September nor the costs could be qualified as exceptional. The
company's claim had consequently to be rejected.

2.

Export price

(30) One Indonesian exporting producer claimed that

the Commission deducted an
excessive amount for SG&A expenses and profit for the function performed by the
related importer in order to construct its export prices according to Article 2(9) of the
basic Regulation.

(31) As regards the percentage of SG&A expenses deducted, the Commission had to rely
on the only information made available, i.e. the audited accounts of the related trading
company. In this respect it should be noted that no product specific information on the
SG&A expenses was provided despite a specific request to do so in the questionnaire.
Consequently, the amount of SG&A expenses deducted was determined on the basis
of turnover.

(32) As regards the profit margin deducted, recital (23) of the provisional Regulation sets
out that a profit margin of 5% was considered to be reasonable for the function
this
performed by a trader. In the absence of any other verifiable information,
approach is hereby confirmed.

3.

Comparison

(33) One Indonesian exporting producer complained that the Commission had ignored its

allowances claimed on normal value.

(34)

For this company, the Commission constructed the normal value in accordance with
Article 2(3) of the basic Regulation. The amounts for SG&A expenses and for profits
were, in accordance with Article 2(6)(a), determined on the basis of the weighted
average of the actual amounts determined for other exporting producers subject to
investigation in respect of production and sales of the like product in Indonesia.
Article 2(10) of the basic Regulation states that due allowance in the form of
adjustments shall be made for differences in factors which affect prices and price
comparability. Since the domestic sales prices of the company concerned were not
used, the adjustments affecting price comparability were, in this case, those relating to
other companies’ SG&A expenses used for constructing the normal value. The
approach taken for the provisional determination is therefore confirmed.

Physical characteristics

(35) One of the Malaysian exporting producers claimed that the type of PET sold on the
domestic market had a higher market value than the type of PET exported to the
Community and that therefore, the normal value should be adjusted accordingly.

(36) However, the exporting producer did not claim any adjustment for physical differences
in either the questionnaire response or during the on spot verification. Neither did it
the alleged difference. Furthermore, during the
quantify the market value of

7

investigation no evidence was found or provided to support such a claim. In view of
these facts this claim had to be rejected.

Import charges and indirect taxes

(37) One Indian exporting producer argued that a duty drawback claim should have been
granted, since import duties have been refunded upon exportation, while no such
refund was made for domestic sales, thus affecting price comparability. The exporter
further claimed that the adjustment should have been granted regardless of whether
duties were paid on importation of raw materials and regardless of whether those raw
materials were physically incorporated in the like product sold on the domestic
market.

(38) According to Article 2(10)(b) of the basic Regulation an adjustment on the normal
value can only be granted for import duties borne by the like product and by raw
materials physically incorporated therein, when intended for consumption in the
exporting country and refunded (or not collected) in respect of the product exported to
the Community. It should be noted that in this case, the exporter based its claim for
duty drawback merely on the amount of import duties refunded upon exportation of
PET. According to the Duty Entitlement Passbook Scheme (“DEPB scheme”)
applicable to the company, a duty refund upon exportation was granted regardless of
whether raw materials for the production of the like product were imported or not.
Moreover, the actual amount of the relevant import charges paid on raw materials for
the PET sold on the domestic market during the IP and refunded or not collected when
exporting the product concerned to the Community was not provided by the company
in its questionnaire response or during the on spot verification visit. It follows that the
company could not demonstrate that the import duties refunded were included in the
domestic price. Consequently, it could not be established that price comparability was
affected and the claim had to be rejected.

(39)

(40)

The same Indian exporting producer claimed finally that the provisional findings of
the anti-dumping investigation were in contradiction with the provisional findings in
the parallel anti-subsidy proceeding. It was argued that it would be incorrect to reject
the company’s claim for a duty drawback adjustment
in the context of the anti-
dumping investigation, when at the same time the DEPB scheme from which the
company benefits had been considered as an export subsidy in the context of the anti-
subsidy proceeding.

This argument cannot be accepted. Indeed, in the context of the parallel anti-subsidy
investigation it was found that the scheme which gave right to a customs duty refund
or a duty-free import, as the case may be, is a countervailable export subsidy, and not
a bona fide duty drawback scheme for the purpose of Council Regulation (EC) No
2026/97 of 6 October 1997 on protection against subsidised imports from countries not
members of
(the "basic Anti-subsidy Regulation").
Pursuant to Article 14(1) of the basic Regulation, this countervailing duty will be
deducted from any anti-dumping duty. Thus, to make the requested adjustment here,
on top of this deduction, would amount to a double adjustment which would negate
the results of the anti-subsidy investigation.

the European Community4

4

OJ L 288, 21.10.1997, p.1.

8

(41) Considering the above, the Commission’s provisional findings are hereby confirmed,
i.e. the company’s claim for an adjustment for differences in import charges and
indirect taxes was not warranted and had consequently to be rejected.

(42) One Korean company contested the method of calculation of the duty drawback
adjustment made by the Commission, which, according to the company, did not reflect
the actual amount of duty drawback received during the IP.

(43) During the investigation the company did not provide any evidence concerning the
link between the amount of duty drawback actually received and the raw materials
physically incorporated in the product. In the absence of any new evidence which can
support the claim of the exporting producer, the approach followed in recital (58) of
the provisional Regulation is confirmed.

(44) Another Korean company objected to the Commission’s decision to reject the duty

drawback adjustments in its entirety (see recital (58) of the provisional Regulation).

(45)

In the light of the explanations provided by the company after the publication of the
provisional Regulation, and considering the information collected during the
investigation, the Commission could re-calculate the amount of the allowance for duty
drawback in order to reflect the duty paid for raw materials imported during the IP.
The allowance was consequently granted but only to the extent
that it could be
verified.

(46) One Indian exporting producer contested the fact that the Commission did not take
sales taxes into account when establishing domestic sales prices. It was argued that
although the company was exempted from sales taxes during the IP, the invoice price
charged to the customers was an all inclusive price and that sales taxes were actually
collected from customers and subsequently paid to the government.

(47)

The information presented by the producer after the imposition of the provisional
measures contradicts the information collected and verified on-spot on which the
provisional findings were based. Furthermore, no evidence was submitted to support
the claim that the sales tax had in fact been collected from customers and was actually
paid to the government. The investigation clearly revealed that the company concerned
benefited from a sales tax exemption scheme which was applicable to purchases and
sales of the product concerned during the IP. The sales prices on the commercial
invoices were found to be “sales-tax-free” and relevant
internal pricing policy
documents indicated that the sales tax was “nil at present”. The legal basis of the sales
tax exemption scheme was furthermore examined in detail and no indication could be
found to support the company’s new claims. The provisional findings are consequently
confirmed.

Level of trade

(48) One Malaysian exporting producer

for
differences in the level of trade between sales of the product concerned on the
domestic and export markets.

reiterated its claim for an adjustment

(49)

In the absence of any evidence showing consistent and distinct differences in the
functions and prices of the seller for the allegedly different levels of trade on the

9

domestic market of the exporting country the provisional findings, as described in
recital (69) of the provisional Regulation, are confirmed.

Credit costs

(50) One Malaysian exporting producer claimed that no account had been taken of the

credit costs on domestic sales transactions during the IP.

(51)

(52)

(53)

In the absence of a substantiated claim for an adjustment for differences in credit costs
within the time limits the claim could not be verified and should thus be rejected.

The other Malaysian exporting producer claimed that the interest rate applied for the
calculation of credit costs on the export side in the provisional Regulation was
incorrect.

The provisional findings pertaining to this issue have been reviewed and it has been
concluded that the interest rate applied by the company in its questionnaire response
was indeed more appropriate and the calculations have been revised accordingly.

Discounts and rebates

(54) One Indian exporting producer reiterated its claim that the normal value ought to be
adjusted by the amount of a “loyalty discount” granted to certain customers on the
domestic market.

(55)

It was found that the discount in question was payable after the IP if and when specific
conditions had been fulfilled. As mentioned in recital (35) of the provisional
Regulation, there was no evidence that the discount scheme had been consistently and
historically used. In fact no disbursements had yet been made under the scheme.
Therefore, pursuant with Article 2(10)(c) of the basic Regulation, that stipulates that
an adjustment can only be granted when the claim is based on consistent practice in
prior periods, including compliance with the conditions required to qualify for the
discount, the claim had to be rejected.

Handling cost

(56) A clerical error was noted in the calculation of the adjustment to be granted for
handling charges on the export side for one Indian exporting producer. This has been
corrected.

Others

(57) One Indian exporting producer challenged the grounds on which its claim for an
allowance for salesmen’s salaries on both the domestic and export markets was
rejected and provided new information in support of its claim.

(58) However, the information or evidence in question, although specifically requested in
the questionnaire, was not made available until well after the on-spot verification had
taken place. In the absence of a substantiated claim for an adjustment for salesmen’s
salaries within the time limits the claim could not be verified and should thus be
rejected.

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4.

Dumping margin for companies investigated

(59) One Korean exporting producer claimed that the Commission departed from the rule
contained in Article 2(11) of the basic Regulation by comparing the weighted average
normal value with the individual export prices in order to calculate the dumping
margin. This comparison was considered as discriminatory in contrast with the
methodology used for the other Korean exporting producers. The company, which
after the provisional disclosure provided modified figures for the weighted average
prices per customer and regions, alleged that the variations of the prices could not be
considered substantial. Furthermore, it claimed that such variations resulted from
differences in the conditions of competition in the Community market and not from
the intention of practising targeted dumping.

(60)

(61)

For the provisional determination the Commission considered that the method of
calculation used for the other exporting producers (see recital (60) of the provisional
Regulation) would not, in the particular case of this company, have reflected the full
degree of dumping being practised. Moreover, a pattern of export prices was found
which differed significantly between different purchasers and regions. Consequently
the normal value established on a weighted average basis was compared to the prices
of all individual export transactions to the Community.

The methodology used by the Commission to compare the weighted average normal
value with individual export prices fully complies with the rule set out in Article 2(11)
of the basic Regulation. The second paragraph of Article 2(11) clearly states that a
normal value established on a weighted average basis may be compared to prices of all
individual export transactions to the Community if there is a pattern of export prices
which differs significantly among different purchasers, regions or time periods, and if
the comparison of the normal value and export prices on weighted average basis does
not reflect the full degree of dumping. In the present case both of the above conditions
are met. Even after the corrections on export prices provided by the exporting
producer, it was still evident that the pattern of prices differed significantly among
purchasers and regions and the full degree of dumping was not reflected by comparing
normal value and export price on a weighted average basis.

(62)

It is therefore considered that there was no discrimination between Korean exporting
producers but a mere application of the correct rule to each specific situation. The
provisional findings are thus confirmed.

(63) One Taiwanese company requested that the comparison of constructed normal value
and export prices be made on a monthly basis alleging that during the IP there were
significant variations in costs and prices due to the changes in prices for raw material.

(64)

Fluctuations in costs and prices during the IP are almost inevitable in an anti-dumping
investigation. For the purpose of comparing normal value with the export price, the
Commission has established a weighted average of both factors, thus taking into
the effect of the fluctuations, particularly in the case of this exporting
account
producer where there is a clear parallel between the evolution of costs and prices. It is
considered that the particular situation of the company that made the request does not
justify the deviation from the methodology used for all companies concerned by the
present proceeding. It would furthermore be contrary to the consistent practice of the
Commission to use different time frames i.e. monthly for the comparison of normal
value and export price and yearly for the other steps of the dumping calculation.

11

(65)

Furthermore it should be noted that the company did not make such claim in its reply
to the questionnaire nor during the on-spot verification, although it is based upon facts
that were well known to the company at that time. All relevant information should
have been submitted within the time limits originally set. The information submitted
several months after the expiry of these time limits could not reasonably be verified
and the company’s claim had consequently to be rejected.

(66) One Taiwanese company for which it was established that its export sales to the
Community were just outside the IP requested to be attributed the average dumping
margin of the other co-operating companies instead of the residual dumping margin
for Taiwan, which was set at the level of the highest dumping margin found for the co-
operating companies.

(67)

(68)

The claim was accepted. Therefore, the dumping margin for the company Nan Ya
Plastics Corp. is set at the level of the average dumping margin of the co-operating
Taiwanese companies, i.e. 9.6 %.

Two Taiwanese co-operating companies pointed out clerical errors in the calculation
of the provisional dumping margin. These errors have been corrected and the
respective dumping margins have been modified accordingly.

(69) Considering the above and in the absence of other comments by the interested parties
it was decided to apply the methods set out in the provisional Regulation for co-
operating and non co-operating companies.

(70)

The comparison showed the existence of a de minimis dumping margin for the exports
of the product concerned to the Community made by one Korean company during the
IP.

(71)

The definitive dumping margins, expressed as a percentage of the CIF import price at
the Community border, are:

12

India

Indonesia

The Republic of Korea

Reliance Industries Limited

Pearl Engineering Polymers
Limited

Others

P.T. Bakrie Kasei
Corporation

P.T. Indorama Synthetics
Tbk

P.T. Polypet Karyapersada

Others

Honam Petrochemical
Corporation

Tongkook Corporation

Daehan Synthetic Fiber
Corporation

51.5%

30.0%

51.5%

63.5%

15.2%

73.7%

73.7%

19.8%

55.8%

5.1%

Malaysia

Taiwan

Thailand

SK Chemicals Corporation

1.4% de minimis

Others

Hualon Corporation(M) Sdn.
Bhd.

MPI Polyester Industries
Sdn. Bhd

Others

Far Eastern Textile Ltd.

Shingkong Synthetic Fibers
Corportation

Tuntex Distinct Corp

Nan Ya Plastics Corporation

Others

Thai Shingkong Industry
Corporation Limited

Others

55.8%

7.8%

34.2%

34.2%

7.8%

7.8%

12.4%

9.6%

12.4%

32.5%

32.5%

E. COMMUNITY INDUSTRY

(72)

In the absence of any new information submitted with respect to the definition of the
Community industry, the findings as set out in recitals (87) to (92) of the provisional
Regulation are confirmed

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1.

Preliminary remarks

F. INJURY

(73) Certain interested parties questioned the use of data submitted by the Community
industry only for the period 1996 onwards whilst the developments in the market prior
to this period were based on independent market research information.

(74)

The Commission had considered that the data submitted by the Community industry
for the year 1995 could not be used due to the split of Kodak and Eastman in 1995 and
to the restructuring of the activities of Shell. Neither Shell nor Eastman was able to
provide complete figures for this year.

(75) However, the Commission had considered it essential to give an overview of the
shortage crisis that occurred in the Community market in 1995 in view of the impact
of this event on both the prices and profitability of the Community industry. As such
the use of independent market research information was considered appropriate in
establishing the necessary background data for the evaluation of the situation of the
Community industry during the analysis period, as explained in recital (97) of the
provisional Regulation.

2.

Consumption

(76)

the findings
In the absence of any new information submitted to the contrary,
concerning the consumption of the product concerned in the Community as detailed in
recitals (100) and (101) of the provisional Regulation are confirmed.

3.

Imports from the countries concerned

(77)

In the absence of any new information the provisional findings as regards the volume
and prices of imports from the countries concerned, are confirmed.

Cumulative assessment of the effects of the imports concerned

(78) An Indonesian exporter claimed that imports originating in Indonesia should not be
assessed cumulatively with the other imports concerned, especially in view of the
differences in trends in volumes between imports originating in this country and in the
other countries subject to the investigation. This argument had already been examined
at recital (106) of the provisional Regulation and as no new information was submitted
the Commission cannot accept this claim.

(79)

The conclusion that imports originating in Indonesia should be assessed cumulatively
with imports from the other countries concerned is therefore confirmed.

4.

Situation of the Community industry

(80)

In accordance with Article 3(5) of the basic Regulation the examination of the impact
of the dumped imports on the Community industry included an evaluation of all
relevant factors and indices having a bearing on the state of the Community industry.
The examination included all factors specifically listed in Article 3(5) of the basic
Regulation. However, certain factors are not dealt with in detail as they were found not
to be relevant for the assessment of the situation of the Community industry in the

14

course of the investigation (wages and stocks see below). As concerns the impact on
the Community industry of the magnitude of the actual margin of dumping, given the
volume and the prices of the imports from the countries concerned, this impact cannot
be considered to be negligible.

Factors examined in the provisional Regulation

–

Investments

(81)

(82)

(83)

It was found that some investments made by a cooperating Community producer had
not been taken into account at the provisional stage. After the inclusion of these
figures, After the inclusion of these figures, the investment situation does not change
the trend previously established:

Some interested parties argued that the extent of the investments made in 1998 by the
Community industry indicated that it was in good financial health. Others remarked
that if the level of investments was low during the IP, this was a consequence of the
previous years in which the Community industry had registered losses and that this
could not be attributed to the effect of the dumped imports during the IP.

In this respect, the investigation has clearly shown that investment expenditure made
in 1997, 1998 and in the IP was mostly a consequence of decisions taken in 1995 and
1996 when prospects in the PET sector were good (although losses were incurred in
1996 this situation was considered to be temporary). In such an industry, it is more
relevant to examine plans to invest than the timing of actual expenditure. As stated in
recital (124) of the provisional Regulation, it is confirmed that, as a consequence of
the further deterioration of its financial situation due to injurious dumping during the
IP, the Community industry has not planned any significant expansion in capacity to
meet increases in future demand.

– Wages and stocks

(84) Wages and stocks were also examined, however, wages were not considered to be a
relevant factor given that their share in the overall costs is small and remained stable
over the analysis period. As concerns stocks given the seasonal nature of the PET
market stock levels were found to vary significantly throughout the year and were
therefore not considered to be meaningful for the injury analysis.

–

Growth

(85) Although it was not explicitly mentioned in the provisional Regulation,

the
Commission also examined growth in its analysis of market share which revealed a
slight loss for the Community industry over the analysis period.

Other factors examined

(86)

The situation of the Community industry regarding the following indicators was
further examined.

15

–

Ability to raise capital

(87) As already mentioned in the provisional Regulation, the level of losses experienced
during the IP was such that no new investment plan could be agreed during the IP.
This clearly did not improve the Community industry's ability to raise capital during
this period despite the anticipated increase in demand.

–

Productivity

(88)

The productivity in terms of tonnes produced per employee increased by 67% from
1996 to the IP and by 21% from 1998 to the IP. Such a considerable increase in
productivity shows that the Community industry made all possible efforts to remain
competitive.

–

Return on Investments (ROI)

Return on capital employed5 % -6%

1996

1997

-7%

1998

1%

IP

-8%

(89)

reflects the overall situation of

The above indicator
the Community industry
(including mostly PET business lines). The verification showed that a large part of the
negative trend in the IP could be attributed to the PET sector. This indicator is in line
with the deterioration of the profitability of the Community industry.

–

Cash Flow

€

1996

1997

1998

IP

Net cash in(out)flow from operating activities

-79.002.884

Net cash in(out)flow from operating activities

84.901.988

Net cash in(out)flow from operating activities

132.915.718

Net cash in(out)flow from operating activities

51.115.757

(90)

reflects the overall situation of

the Community industry
The above indicator
(including mostly PET business lines). It represents the gross operational result of
these companies, i.e. sales less cost of sales and before financial charges, depreciation,
provisions and taxes. The verification showed that a large part of the deterioration in
the IP is attributable to the PET sector.

5

Return on capital employed is defined as pre-tax profit after proper adjustment for any preference share
dividends, debenture and long-term loan interest paid/received in arriving at that figure as divided by
total share capital and reserves together with debentures and other long-term loans.

16

5.

Further arguments raised

General arguments raised as to the Commission's conclusions

(91)

(92)

Some interested parties questioned the Commission’s conclusions on injury since
some of the injury indicators showed either increasing or stable trends. In this respect,
a number of interested parties pointed to the low level of price undercutting, the
increase in sales volume and the overall stability of market share. They considered
these indicators showed that the Community industry was in good health and that
although prices were very low,
levels taking into account
prevailing market conditions.

they were at normal

This argument could not be accepted. As established in the provisional Regulation, the
increase in sales and the recovery of market share in the IP, after a loss of 5 percentage
points between 1997 and 1998, occurred when the Community industry considerably
decreased its prices to match those of dumped imports. As explained in the provisional
Regulation, it was established that imports were made at dumped prices. In this
respect, the low level of price undercutting result from the fact that the Community
industry's prices were depressed during the IP. This price depression was the result of
the dumped imports, which were very substantial in terms of volume and market share
and which forced the Community industry to react by decreasing its prices.

Developments occurring after the IP

(93) Many interested parties and delegates from the member states requested the
Commission to analyse and take into account certain developments that occurred after
the IP. In particular these parties underlined the rapid and substantial rise in
Community industry PET prices in relation to the increase in the cost of raw materials.
According to these parties,
the Community industry's situation had improved
dramatically since the IP and it was likely that the Community industry was no longer
suffering material injury.

(94)

(95)

It should be recalled that Article 6(1) of the basic Regulation provides that information
relating to a period after the IP should, normally, not be taken into account. On the
basis of the jurisprudence of the Court, developments after the IP can only be taken in
consideration if they make the imposition of anti-dumping measures manifestly
unsuitable.

The Commission analysed developments in the PET market during the nine-month
period following the IP, i.e. 1 October 1999 to 30 June 2000. It was found that the
prices for PET sales made by the Community industry on the Community market
showed a continued increase. The average selling price for the nine-month period was
around 40% higher than the average found for the IP. This increase was more rapid
than the increase in costs (around 20%) leading to an improvement of the Community
industry's financial situation. Nonetheless, on average, during this nine-month period,
the return on sales for the Community industry was still negative at –2% indicating
that its financial performance remained unsatisfactory and far from the level that can
ensure the viability of this industry.

(96)

This dramatic change in prices mostly originates in the increase in crude oil prices that
has occurred since the middle of 1999 and noticeably affected all polymer prices a few
months later. It should also be noted that there has been a steady increase in sales and

17

market share of the Community industry at the expense of dumped imports. However,
the decrease in the volume of dumped imports may be a consequence of the opening
of an anti-dumping investigation. In the present case,
in the
dollar/euro exchange rate also rendered the imports concerned less attractive.

the development

(97)

It is to be noted that exchange rates, as well as the crude oil price, are extremely
volatile and changes may be temporary. Furthermore, should the on-going anti-
dumping investigation to be terminated without imposing measures, it is likely that
dumped imports would rapidly regain market share.

(98) On the basis of the above, it was concluded that developments occurring after the IP
do not show that the injury caused by dumped imports has disappeared. As a result,
the imposition of anti-dumping measures is not manifestly unsuitable.

6.

Conclusion on injury

(99) Given that no other arguments were received regarding the injury suffered by the
Community industry,
the Community industry has suffered
material injury within the meaning of Article 3 of the basic Regulation, as set out in
recitals (125) to (128) of the provisional Regulation, is hereby confirmed.

the conclusion that

G. CAUSATION

(100) Several interested parties continued to argue that the Commission wrongly concluded
that imports originating in the countries concerned were the cause of the injury
suffered by the Community industry whereas, in their opinion, the situation of this
industry and the level of prices on the Community market were due to a combination
the
of other factors. In this context, they reiterated the points already raised at
provisional stage (including the price of raw materials, the situation of over capacity,
the competition between PET producers).

(101) Given that no other arguments were received regarding the cause of the injury suffered
by the Community industry, the conclusion that imports of PET from the countries
concerned had caused injury to the Community industry as stated in recital (148) of
the provisional Regulation is hereby confirmed.

H. COMMUNITY INTEREST

1.

Likely effect of the imposition of measures on downstream industries

Further investigation

(102)

In view of the low level of co-operation from the users during the first stage of the
investigation, the Commission decided to investigate further the likely effect of the
imposition of measures on the downstream industries. Therefore, the Commission sent
out 90 new, simplified questionnaires to users of PET, some of which had already
been contacted but had not replied. 19 previously non co-operating companies
submitted meaningful responses within the time limits set.

18

The new co-operating companies are:

- 3 preform/bottle converters:

Lux PET GmbH & Co. (Luxembourg)

Puccetti S.p.a. (Italy)

EBP SA (Spain)

- 4 producers of PET films and sheets using the product concerned:

RPC Cobelplast Montonate S.r.l. (Italy)

Moplast S.p.a. (Italy)

Alusuisse Thermoplastic (UK)

Klöckner Pentaplast BV (The Netherlands)

- 4 producers of soft drinks:

L'abeille (France)

Pepsico Food Beverages Intl. Ltd (Italy)

Pepsico France (France)

Europe embouteillage Snc (France)

- 8 producers of mineral and spring water:

Aguas Minerales Pasqual S.L. (Spain)

Eycam Perrier SA (Spain)

Font Vella SA & Aguas de Lanjarón SA (Spain)

Italaquae S.p.a. (Italy)

Neptune SA (France)

Roxane SA (France)

San Benedetto (Italy)

Società Generale delle acque minerali a.r.l. (Italy)

(103)

In total, the data submitted by the companies that completed either the first or the
second questionnaire covered 26% of the Community PET consumption during the IP.
The cost figures established by aggregating this information have been considered
representative of the various user sub-sectors, as individual company information
showed a large level of consistency among companies belonging to the same sub-
sectors.

19

(104) After the imposition of provisional measures, several submissions by users or their
representative associations were received by the Commission. These mostly comprised
comments on the past developments in the PET market and discussions on the possible
impact of measures on the user sectors. These submissions originated from:

–

–

–

–

Schmalbach-Lubeca, the biggest converter in Europe (18% of community PET
consumption);

the “European plastic Converters” association (EUPC);

UNESDA, an association representing soft drink producers;

The Nestlé group, reiterating that the figures given for the French market are
representative of their overall European market. (The total European purchases
of PET by the group represent some 9% of the Community consumption of
PET of which 3% is for the French market only).

(105) These submissions, as well as those made by associations representing the water
producers (that had made themselves known during the first stage of the investigation)
have been taken into account, and in total all submissions represent at least half of the
market.

Description of the user sectors

(106) After having analysed all the information provided, it was found that the user sector,
previously considered as 3 groups (preform makers, water producers and integrated
soft drink producers), is more accurately described as two groups:

–

–

The converters, including manufacturers of preforms and bottles as well as
producers of sheets. These users are performing a simple transformation
activity; therefore the cost of PET is by far their main cost element. The
manufacturers of bottles and preforms sell the vast majority of their production
to bottlers of non-alcoholic drinks. The sheet producers, that represent only a
small proportion of the converters sector, sell to many different
types of
industries that use sheets mainly to package their goods.

The bottlers of non-alcoholic drinks, including water, carbonated and non-
carbonated soft drinks, milk, fruit juices etc. The division of this group of users
between producers of water and soft drinks is not relevant since in many cases
the same manufacturer bottles both water and soft drinks. It is more relevant to
distinguish between the different drinks they manufacture since, in relative
terms, the share of PET in their cost of production depends on the intrinsic cost
of those drinks (sodas or fruit juices require more expensive inputs than water).
In any case, PET remains a fairly important cost element and problems faced
by bottlers regarding their supply of PET are similar whatever the product they
bottle.

(107)

It is to be noted that there is a very close operational link between the converters
(except sheet manufacturers) and bottlers.

–

–

Bottlers buy almost all the production of the converters.

Every converter has a very limited number of clients (often only one).

20

–

Converters operate on a contractual basis with their clients, and these contracts
very often either include provisions that automatically take into account
changes in the price of PET or are renegotiated on a regular basis.

Consequently, the impact of measures as described below should not be cumulated as
most of the impact of the measures will be directly passed on to the converters' main
clients i.e. the bottlers of non-alcoholic beverages.

Foreseeable impact of measures on the users

(108) After taking into account the new figures provided, the situation of the users, which

supplied fully quantified information, was as follows:

Consumption
of PET as % of
Community
consumption

PET as a % of
the cost of
production

Employees
involved in
products using
PET

7%

1%

18%

1%

26%

66%

55%

24%

9%

770

186

6766

298

8020

Converters

Preform and bottle
producers

Sheet producers

Mineral and spring
water

Soft drinks

Bottlers of
non-alcoholic
drinks

TOTAL

Impact on converters

(109)

It was estimated that the imposition of both the anti-dumping and countervailing
measures proposed (of which 15% is to be attributed to countervailing measures only),
taking into account their volumes of PET purchases originating in the countries
concerned during the IP, would result in an increase of 4% in the cost of production of
converters making preforms and bottles (using PET prices of July 2000, this would be
2%). In the same terms, the impact of measures on the sheet producers would be
around 2,3% (1,2% with PET prices of July 2000).

(110) Due to their contractual link with their customers, it is likely that the converters
making preforms and bottles will be able to pass most of this increase in cost onto
their clients. This is also the case for sheet manufacturers. The direct impact of
measures on the return on sales of these companies is therefore estimated to be
limited.

(111) The main risk that was re-iterated by these users relates to a possible relocation of
converters’ activities to countries outside the Community. However, the Commission
did not find any new evidence to suggest there would be such a risk, especially taking
into account the estimated impact of the measures proposed on one hand and the costs
and disadvantages linked to relocation on the other hand. In recital (179) of the
provisional Regulation it was estimated that additional costs relating to transport only

21

would represent an increase of 2.5% in costs. Furthermore it was also explained that
considerations of proximity, flexibility and reliability of supplies were essential to
users.

Impact on bottlers of non-alcoholic drinks

(112)

It was estimated that the imposition of both the anti-dumping and countervailing
measures proposed, taking into account their volumes of PET purchases originating in
the countries concerned during the IP, as well as the fact that most of the increase in
the cost of preforms is going to passed on them, would result in an average increase of
less than 0.9% in the cost of production of bottlers of non-alcoholic drinks (using PET
prices of July 2000 this would be around 0.4%).

(113) This increase in costs of production is estimated to have a limited impact on large
companies that sell branded drinks since those companies are very profitable. Small
bottlers of non-branded-drinks, that represent only a small proportion of this sector,
are operating with lower profit margins; such an increase in cost is not likely to
severely endanger their activities but it may require some cost restructuring efforts. In
this respect it is to be noted that in the past these companies have had to cope with
large fluctuations in PET prices.

Overall impact on the users

(114) As mentioned above, PET is mostly used directly, or indirectly via converters, by the
producers of non-alcoholic drinks, whereas PET is only a marginal packaging material
for the other industries. As the estimated impact on the non alcoholic drinks sector
already includes the impact on the cost of PET transformed by the converters, it can be
considered that the increase in costs on users of PET would be limited.

2.

The retail price of drinks

(115)

It was found that the prices of bottled water and soft drinks have increased at a
relatively constant rate of 1-2% per year over the past decade (Eurostat retail price
index statistics). During the same period the prices of PET have been extremely
volatile, without, however, influencing the retail prices of bottled water and soft
drinks. Therefore, the claim about the potential inflationary impact of measures on
retail prices of bottled water and soft drinks is rejected.

Likely effect of the imposition of measures on the Community industry and the

3.
upstream industries

(116) The measures proposed would, in all likelihood, benefit the Community industry,
which, by its restructuring efforts and impressive increase in productivity, has
demonstrated its determination to maintain its presence in the rapidly growing
Community market. The imposition of measures will allow this industry to improve
profitability and to have the possibility of making the new investments, which are
crucial, in such a capital-intensive activity, to insure its long-term viable presence in
the Community.

(117) Since the situation of the Community upstream industry is dependent on the financial
health of Community PET producers, the improvement of the situation of the latter
due to the imposition of measures will also benefit the upstream industry. This has
been confirmed by cooperating companies in the upstream industries.

22

4.

Conclusions on Community interest

(118) On the basis of the additional information obtained from users, it is concluded that the
impact of the measures on users would be limited. As converters are able to pass most
of the increase in costs on to their clients, the consolidated impact of measures on the
producers of drinks is estimated to be marginal on the overall profitability of this
sector.

(119)

In addition, it is confirmed that the delocalisation of the production of preforms
outside the Community is not likely, that retail prices of non alcoholic drinks are not
usually much affected by fluctuations in PET prices and that imposition of measures is
clearly in the interest of the Community industry and of the upstream industries.

(120) Given that no other arguments were received regarding Community interest, the
conclusion that there are no compelling reasons not to impose measures, as set out in
recital (202) is hereby confirmed.

I. DEFINITIVE COURSE OF ACTION

(121)

injury, causation and
In view of the conclusions reached regarding dumping,
Community interest, it is considered that definitive anti-dumping measures should be
taken in order to prevent further injury being caused to the Community by dumped
imports originating in the concerned countries.

1.

Injury elimination level

(122)

In the absence of any new information, the methodology used for establishing the
injury margin as described in recital (206) of the provisional Regulation is hereby
confirmed.

2.

Form and level of the duties

(123)

(124)

In the absence of any new information, the methodology used for establishing the anti-
dumping duty rates in conjunction with the relevant countervailing duty rates
established in the parallel anti-subsidy investigation, as described in recital (209) to
(213) of the provisional Regulation is hereby confirmed.

In order to avoid that fluctuations in PET prices caused by fluctuations in crude oil
prices should result in higher duties being collected, it is considered appropriate that
duties in the form of a specific amount per tonne should be imposed. These amounts
result from the application of the anti-dumping duty rate to the CIF export prices used
for the calculation of the injury elimination level during the IP.

(125) The proposed anti-dumping duties are the following:

23

Company

India

Dumping
Margin

Injury
elimination
margin

Anti-dum-
ping duty
rate

Proposed
anti-
dumping
duty

Counter-
vailing
duty rate
(resulting
from
export
subsidies)

Reliance
Industries Limited

Pearl Engineering
Polymers Limited

Elque Polyesters
Limited

Futura Polymer
Limited

All Others

44.3%

51.5%

8.2%

36.1%

181.7

33.6%

30.0%

5.8%

24.2%

130.8

44.3%

51.5%

4.4%

39.9%

200.9

44.3%

51.5%

0

44.3%

223.0

51.5%

8.2%

36.1%

181.7

€

/t

€

/t

€

/t

€

/t

€

/t

(126) Elque Polyesters Limited and Futura Polymer Limited participated in the parallel anti-
subsidy proceeding but notin the present anti-dumping investigation since they did not
export to the Community. They are therefore entitled to ask for a newcomer review
when they have actually exported to the Community, or when they can demonstrate
that they have entered into irrevocable contractual obligations to export significant
quantities to the Community.

Company

P.T. Bakrie Kasei
Corporation

P.T. Indorama
Synthetics Tbk

P.T. Polypet
Karyapersada

All others

Indonesia

Injury
elimination
margin

Dumping
Margin

Proposed
anti-
dumping
duty

35.1%

63.5%

187.7

17.8%

15.2%

92.1

32.9%

73.7%

178.9

73.7%

187.7

€

/t

€

/t

€

/t

€

/t

24

Company

Honam Petrochemical
Corporation

Tongkook Corporation

Daehan Synthetic Fiber
Corporation

SK Chemicals
Corporation

All others

Korea

Injury
elimination
margin

Dumping
Margin

Proposed
anti-dumping
duty

€

16.9%

19.8%

101.4

/t

26.5%

28.5%

55.8%

5.1%

€

€

/t

/t

148.3

28.2

11%

1.4%

0

55.8%

€

/t

148.3

Malaysia

Company

Injury
elimination
margin

Dumping
Margin

Anti-dum-
ping duty
rate

Proposed
anti-
dumping
duty

Counter-
vailing duty
rate
(resulting
from export
subsidies)
0.2%

52.1%

7.8%

7.6%

36.0

Hualon
Corporation(M)
Sdn. Bhd
MPI Polyester
Industries Sdn.
Bhd
All others

Company

54.2%

34.2%

0

34.2%

160.1

34.2%

Not
applicable

34.2%

160.1

Taiwan

Injury
elimination
margin

Dumping
Margin

€

/t

€

/t

€

/t

Proposed
anti-
dumping
duty
€
50.2
€
47.0

/t
/t

€
69.5
€
53.8
€
69.5

/t
/t
/t

Far Eastern Textile Ltd
Shingkong Synthetic Fibers
Corporation
Tuntex Distinct Corp
Nan Ya Plastics Corporation
All others

8.2%
16.6%

26.3%
26.3%

7.8%
7.8%

12.4%
9.6%
12.4%

25

Company

Thai Shingkong
Industry
Corporation
Limited
All others

Thailand

Dumping
Margin

Injury
elimination
margin

Counter-
vailing
duty rate

Anti-dum-
ping duty
rate

22.6%

32.5%

8.4%

14.2%

Proposed
anti-
dumping
duty
€
132.2

/t

32.5%

8.4%

14.2%

132.2

€

/t

(127) 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 Commission6 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 Regulation accordingly
by updating the list of companies benefiting from individual duty rates.

3.

Definitive collection of provisional duties

(128)

In view of the magnitude of the dumping found for the exporting producers, and in the
light of the seriousness of the injury caused to the Community industry,
is
considered necessary that the amounts secured by way of provisional anti-dumping
duties shall be collected at the rate of the duty definitively imposed. In those cases,
where the definitive duties are higher than the provisional duties, only the amounts
secured at the level of the provisional duties shall be definitively collected.

it

4.

Undertakings

(129) Subsequent

to the imposition of provisional anti-dumping measures, exporting
producers in India and Indonesia offered price undertakings in accordance with Article
8(1) of the basic Regulation.

(130) The Commission considers that

the undertakings offered by Reliance Industries
Limited, Pearl Engineering Polymers Limited and P.T. Polypet Karyapersada can be
accepted7 since they eliminate the injurious effect of the dumping. Moreover, the
regular and detailed reports which the companies undertook to provide to the
Commission will allow effective monitoring. Furthermore, the sales structure of these
companies is such that the Commission considers that the risk of circumvention of the
undertakings is minimised.

6

7

European Commission
Directorate-General Trade
Directorate B
TERV 0/13
Rue de la Loi/Wetstraat 200
B-1049 Brussels / Belgium
See page …. of this Official Journal.

26

(131) P.T. Indorama Synthetics Tbk also made proposals for offering an undertaking.
However, the company provided false and misleading information in respect of certain
aspects of the investigation which affected the accuracy and reliability of its co-
operation (cf. recital (13)). Accordingly, he Commission was not satisfied that an
undertaking from this company could be effectively monitored and the offer was
therefore rejected.

(132)

In order to ensure the effective respect and monitoring of the undertakings, when the
request for release for free circulation pursuant to the undertakings is presented,
exemption from the duty is conditional upon presentation to the customs service of the
Member State concerned a valid "Undertaking Invoice" issued by the exporting
producers from whom the undertakings are accepted and containing the information
listed in the Annex. Where no such invoice is presented, or when it does not
correspond to the product presented to customs, the appropriate rate of anti-dumping
duty should be payable in order to ensure the effective application of the undertakings.

(133)

In the event of a breach or withdrawal of the undertakings an anti-dumping duty may
be imposed, pursuant to Article 8(9) and (10) of the basic Regulation,

HAS ADOPTED THIS REGULATION:

Article 1

1.

2.

A definitive anti-dumping duty is hereby imposed on imports of polyethylene
terephthalate with a coefficient of viscosity of 78ml/g or higher, according to DIN
(Deutsche Industrienorm) 53728, falling within CN codes 3907 60 20 and ex 3907
60 80 (TARIC code 3907 60 80 10).

Except as provided for in paragraph 3 below, the rate of the definitive anti-dumping
duty applicable to the net, free-at-Community-frontier price, before duty, shall be as
follows for products originating in:

Country

India
Indonesia
Malaysia
Republic of Korea
Taiwan
Thailand

Definitive duty
EUR/ton
181.7
187.7
160.1
148.3
69.5
83.2

TARIC
Additional code
A999
A999
A999
A999
A999
A999

3.

The above rates shall not apply to the products manufactured by the companies listed
below, which shall be subject to the following anti-dumping duty rates:

27

Country

Company

India

India

India

India

Indonesia

Indonesia

Indonesia

Malaysia

Malaysia

The Republic of
Korea
The Republic of
Korea
The Republic of
Korea
The Republic of
Korea
Taiwan

Taiwan

Taiwan

Taiwan

Pearl Engineering Polymers Limited

Reliance Industries Limited

Elque Polyesters Limited

Futura Polymer Limited

P.T. Bakrie Kasei Corporation

P.T. Indorama Synthetics Tbk

P.T. Polypet Karyapersada

Hualon Corporation (M) Sdn. Bhd.

MPI Polyester Industries Sdn. Bhd.

Daehan Synthetic Fiber Co., Limited

SK Chemicals Co., Limited

Tongkook Corporation

Far Eastern Textile Limited

Tuntex Distinct Corporation

Shingkong Synthetic Fibers Corporation

Nan Ya Plastics Corporation

Thailand

Thai Shingkong Industry Corporation Limited

Definitive
Duty
EUR/t
130.8

TARIC
additional
code
A182

181.7

200.9

223.0

187.7

92.1

178.9

36.0

160.1

28.2

A181

A183

A184

A191

A192

A193

A186

A185

A194

0

A196

148.3

A197

50.2

69.5

47.0

53.8

83.2

A188

A198

A189

A187

A190

Honam Petrochemical Corporation

101.4

A195

4.

5.

8

In cases where goods have been damaged before entry into free circulation and,
therefore, the price actually paid or payable is apportioned for the determination of
the customs value pursuant to Article 145 of Commission Regulation (EEC) No
2454/938
, the amount of anti-dumping duty, calculated on the basis of the amounts
set above, shall be reduced by a percentage which corresponds to the apportioning of
the price actually paid or payable.

Notwithstanding paragraph 1, the definitive duty shall not apply to imports released
for free circulation in accordance with the provisions of Article 2.

OJ L 253, 11.10.1993, p. 1. Regulation as last amended by Regulation (EC) No 502/1999 (OJ L 65,
12.3.1999, p. 1).

28

6.

1.

2.

3.

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

Article 2

Imports shall be exempt from the anti-dumping duties imposed by Article 1 provided
that they are produced and directly exported (i.e. invoiced and shipped) to a company
acting as an importer in the Community by the companies mentioned in paragraph 3,
declared under the appropriate TARIC additional code and that the conditions set out
in paragraph 2 are met.

When the request for release for free circulation is presented, exemption from the
duties shall be conditional upon presentation to the customs service of the Member
State concerned of a valid "Undertaking Invoice" issued by the exporting companies
mentioned in paragraph 3, containing the essential elements listed in the Annex to
this Regulation. Exemption from the duty shall further be conditional on the goods
declared and presented to customs corresponding precisely to the description on the
"Undertaking Invoice".

Imports accompanied by an "Undertaking Invoice" shall be declared under the
following TARIC additional codes:

Company

Country

TARIC Additional
Code

Reliance Industries
Limited

Pearl Engineering
Polymers Limited

India

India

P.T. Polypet
Karyapersada

Indonesia

Article 3

A181

A182

A193

The amounts secured by way of provisional anti-dumping duties pursuant to Regulation (EC)
No 1742/2000 on imports of certain polyethylene terephthalate originating in India,
Indonesia, Malaysia, Korea, the Republic of Korea, Taiwan and Thailand shall be collected at
the rate of the duty definitively imposed. Amounts secured in excess of the definitive rate of
anti-dumping duties shall be released. Where the definitive duties are higher than the
provisional duties, only the amounts secured at the level of the provisional duties shall be
definitively collected.

29

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

Article 4

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

Done at Brussels,

For the Council
The President

30

Elements to be indicated in the Undertaking Invoice referred to in Article 2(2):

ANNEX

1.

2.

3.

The Undertaking Invoice number

The TARIC additional code under which the goods on the invoice may be customs-
cleared at Community borders (as specified in the Regulation),

The exact description of the goods, including:

–

–

–

the product reporting code number (PRC) (as established in the undertaking
offered by the producing exporter in question).

CN code,

quantity (to be given in units),

4.

The description of the terms of the sale, including:

–

–

–

–

price per unit,

the applicable payment terms,

the applicable delivery terms,

total discounts and rebates.

5.

6.

Name of the company acting as an importer to which the invoice is issued directly by
the company.

The name of the official of the company that has issued the undertaking invoice and
the following signed declaration:

“I, the undersigned, certify that the sale for direct export to the European Community of the
goods covered by this invoice is being made within the scope and under the terms of the
undertaking offered by . . . [company], and accepted by the European Commission through
Decision (2000/…./EC). I declare that the information provided in this invoice is complete
and correct.”

31