Council Regulation (EC) No 2604/2000 of 27 November 2000 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: 2000-11-27
Institutions: Council of the European Union
Subjects: Far East, India, South-East Asia, anti-dumping duty, import, plastics

30.11.2000

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Official Journal of the European Communities

L 301/21

COUNCIL REGULATION (EC) No 2604/2000

of 27 November 2000

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 Community (1), and in
particular Articles 9 and 10(2) thereof,

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

Whereas:

A. PROVISIONAL MEASURES

The Commission, by Regulation (EC) No 1742/2000 (2),
(‘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 1741/2000 (3) a
provisional countervailing duty on imports of certain
polyethylene terephthalate originating in India, Malaysia,
Taiwan and Thailand.

is recalled that

It
the investigation of dumping and
injury covered the period from 1 October 1998 to 30
September 1999 (‘IP’). The examination of trends rele-
vant for the injury analysis covered the period from 1
January 1996 up to the end of the IP (‘analysis period’).

(10)

(1)

(2)

(3)

(4)

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

(5)

The Commission continued to seek and verify all infor-
mation deemed necessary for the definitive findings.

(1) 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).

(2) OJ L 199, 5.8.2000, p. 48.
(3) OJ L 199, 5.8.2000, p. 6.

(6)

(7)

(8)

(9)

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 question-
naire:

— SK Global Belgium NV (Antwerp).

the essential

All parties were informed of
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, it is concluded that
the main findings as set out in the provisional Regula-
tion should be hereby confirmed.

C. PRODUCT CONCERNED AND LIKE PRODUCT

1. Product concerned

the

defined

provisional Regulation

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 find-
ings as
the product concerned are hereby
confirmed.

regards

2. Like product

(11)

In recital 12 of the provisional Regulation, the Commis-
sion 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 charac-
teristics and uses of the existing different types of PET.
Since no new evidence was submitted on this, the provi-
sional findings as regards the like product are confirmed.

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D. DUMPING

(17)

1. Normal value

(12)

(13)

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 informa-
tion, contested the Commission's findings. It considered
that the use of Article 18 was not warranted and that
the rejection of its selling, general and administrative
(‘SG&A’) expenses was an unduly harsh measure.

The Commission re-examined all information submitted
by the company in its response to the questionnaire and
It was confirmed
during the on-the-spot verification.
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.

(21)

Normal value based on domestic sales

(15)

(16)

Two Taiwanese companies requested that
the deter-
mination 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 two
companies that made the request does not justify the
deviation from the methodology used for all companies
concerned by the present proceeding. It would further-
more be contrary to the consistent practice of
the
Commission to use different time frames for the ‘ordi-
nary course of trade test’ (quarterly) and for the other
steps of the dumping calculation (yearly).

the particular situation of

It should finally be noted that the relevant information
(e.g. quarterly cost of production figures) was submitted
for the first time following the disclosure of the provi-
sional findings. This despite the fact that it relates to
facts that were well known to the companies before the
on-the-spot verification or their reply to the question-
naire. 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 profit-
ability of domestic sales.

(18) One Korean company disputed the Commission's meth-
odology 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 provi-
findings presented new figures, but despite a
sional
request by the Commission, did not provide any
evidence or explanation of the allocation methodology
used. Consequently the claim of
the company was
rejected.

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.

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
turnover based methodology applied by the
the
Commission for
the reallocation of certain SG&A
expenses used for the purpose of constructing normal
value in the provisional Regulation.

(23)

(24)

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.

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(25)

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 produ-
cers 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.

(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 turn-
over.

(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 Regu-
lation.

(27)

the provisional Regulation,

It is the Commission's consistent practice, as pointed out
also in recital 21 of
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 of 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 whether and to what extent the earthquake
affected the costs. Moreover, the 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. Conse-
quently neither the quantity produced in the month of
September nor the costs could be qualified as excep-
tional. 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.

(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
In the absence of any other
performed by a trader.
verifiable
hereby
this
information,
confirmed.

approach

is

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), deter-
mined 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 compar-
ability were, in this case, those relating to other compa-
nies' SG&A expenses used for constructing the normal
value. The approach taken for the provisional deter-
mination 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 ques-
tionnaire response or during the on-the-spot verification.
Neither did it quantify the market value of the alleged
difference. Furthermore, during the investigation no
evidence was found or provided to support such a claim.
In view of these facts this claim had to be rejected.

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Import charges and indirect taxes

(37) One Indian exporting producer argued that a duty draw-
back 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 mate-
rials 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-the-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.

findings of

The same Indian exporting producer claimed finally that
the anti-dumping invest-
the provisional
igation were in contradiction with the provisional find-
ings 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.

(39)

(40)

(the ‘basic
the European Community (1)
members of
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.

(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 calcula-
tion 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 Regula-
tion, 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.

Indeed,

This argument cannot be accepted.
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 Regu-
lation (EC) No 2026/97 of 6 October 1997 on protec-
tion against subsidised imports from countries not

(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.

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

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(47)

The information presented by the producer after the
imposition of the provisional measures contradicts the
information collected and verified on-the-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 applic-
able 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.

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.

Level of trade

Handling cost

(48) One Malaysian exporting producer reiterated its claim
for an adjustment for differences in the level of trade
between sales of the product concerned on the domestic
and export markets.

(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.

(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
domestic market of the exporting country the provi-
sional findings, as described in recital 69 of the provi-
sional 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.

Others

(57) One Indian exporting producer challenged the grounds
on which its claim for an allowance for salesmen's sala-
ries 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-the-spot verifi-
cation 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.

(51)

(52)

(53)

In the absence of a substantiated claim for an adjust-
ment 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 calcula-
tions have been revised accordingly.

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.

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(60)

(61)

the provisional determination the Commission
For
considered that the method of calculation used for the
other exporting producers (see recital 60 of the provi-
sional 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
the basic Regulation. The second
Article 2(11) of
subparagraph 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 compar-
ison 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,
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.

it was still evident

that

(62)

It is therefore considered that there was no discrim-
ination 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 account the
effect of the fluctuations, particularly in the case of this
exporting producer where there is a clear parallel
between the evolution of costs and prices. It is consid-

ered 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.

(65)

Furthermore it should be noted that the company did
not make such claim in its reply to the questionnaire
nor during the on-the-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 infor-
mation 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 cooperating companies instead of
the residual dumping margin for Taiwan, which was set
at the level of the highest dumping margin found for the
cooperating companies.

(67)

(68)

(69)

(70)

The claim was accepted. Therefore, the dumping margin
for the company Nan Ya Plastics Corp. is set at the level
of
the cooperating
Taiwanese companies,

the average dumping margin of

i.e. 9,6 %.

Two Taiwanese cooperating companies pointed out cler-
ical errors in the calculation of the provisional dumping
margin. These errors have been corrected and the
respective dumping margins have been modified accord-
ingly.

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 cooperating and non cooperating companies.

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

exports of

the

(71)

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

expressed as

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India

Reliance Industries Limited

Pearl Engineering Polymers Limited

Others

Indonesia

P.T. Bakrie Kasei Corporation

P.T. Indorama Synthetics Tbk

P.T. Polypet Karyapersada

Others

The Republic of Korea

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 %

Sk Chemicals Corporation

1,4 % de minimis

Others

Malaysia

Hualon Corporation (M) Sdn. Bhd.

MPI Polyester Industries Sdm. Bhd.

Others

Taiwan

Far Eastern Textile Ltd

Shingkong Synthetic Fibers Corporation

Tuntex Distinct Corp.

Nan Ya Plastics Corporation

Others

Thailand

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.

F. INJURY

1. Preliminary remarks

(73)

(74)

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.

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.

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(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)

In the absence of any new information submitted to the contrary, the findings 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 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)

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, 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.

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(83)

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.

— 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 employed (1)

1996

– 6 %

1997

– 7 %

1998

1 %

IP

– 8 %

(1) 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.

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(89)

The above indicator reflects the overall situation of 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

(EUR)

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)

The above indicator reflects the overall situation of the Community industry (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. 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, they were at normal
levels taking into account
prevailing market conditions.

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.

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(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 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,
the development in the dollar/euro exchange rate also rendered the imports concerned less attractive.

(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 conclusion that 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.

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 of other factors. In this context, they reiterated the
points already raised at the 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.

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H. COMMUNITY INTEREST

1. Likely effect of the imposition of measures on downstream industries

Further investigation

(102)

In view of the low level of cooperation 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-cooperating companies submitted meaningful responses within the time limits set.

The new cooperating companies are:

— three preform/bottle converters:

Lux PET GmbH & Co. (Luxembourg)
Puccetti SpA (Italy)
EBP SA (Spain)

— four producers of PET films and sheets using the product concerned:

RPC Cobelplast Montonate Srl (Italy)
Moplast SpA (Italy)
Alusuisse Thermoplastic (UK)
Klöckner Pentaplast BV (The Netherlands)

— four producers of soft drinks:

L'Abeille (France)
Pepsico Food Beverages Intl. Ltd (Italy)
Pepsico France (France)
Europe Embouteillage Snc (France)

— eight 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 SpA (Italy)
Neptune SA (France)
Roxane SA (France)
San Benedetto (Italy)
Società generale delle acque minerali arl (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 compa-
nies belonging to the same sub-sectors.

(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.

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L 301/33

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).

— 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:

Converters

Preform and bottle producers

Sheet producers

Bottlers of non-alcoholic drinks Mineral and spring water

Soft drinks

TOTAL

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

6 766

298

8 020

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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 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.

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Official Journal of the European Communities

L 301/35

3. Likely effect of the imposition of measures on the Community industry and the 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 invest-
ments, 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.

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
the
fluctuations in PET prices and that
Community industry and of the upstream industries.

imposition of measures is clearly in the interest of

(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)

In view of the conclusions reached regarding dumping, injury, causation and 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)

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 recitals 209 to 213 of the provisional Regulation is hereby
confirmed.

(124)

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.

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

India

Company

Reliance Industries
Limited

Pearl Engineering
Polymers Limited

Injury
elimination
margin

Dumping
margin

Countervailing
duty rate
(resulting from
export subsidies)

Anti-dumping
duty rate

Proposed
anti-dumping
duty

44,3 %

51,5 %

8,2 %

36,1 %

181,7 EUR/t

33,6 %

30,0 %

5,8 %

24,2 %

130,8 EUR/t

Elque Polyesters Limited

44,3 %

51,5 %

4,4 %

39,9 %

200,9 EUR/t

Futura Polymer Limited

44,3 %

51,5 %

0

44,3 %

223,0 EUR/t

All other

51,5 %

8,2 %

36,1 %

181,7 EUR/t

(126) Elque Polyesters Limited and Futura Polymer Limited participated in the parallel anti-subsidy
proceeding but noting 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.

Indonesia

Company

Injury elimination margin

Dumping margin

Proposed anti-dumping duty

P.T. Bakrie Kasei
Corporation

P.T. Indorama Synthetics
Tbk

35,1 %

17,8 %

P.T. Polypet Karyapersada

32,9 %

All others

63,5 %

187,7 EUR/t

15,2 %

92,1 EUR/t

73,7 %

73,7 %

178,9 EUR/t

187,7 EUR/t

Korea

Company

Injury elimination margin

Dumping margin

Proposed anti-dumping duty

Honam
Corporation

Petrochemical

Tongkong Corporation

Daehan Synthetic Fiber
Corporation

SK Chemicals
Corporation

All others

16,9 %

26,5 %

28,5 %

11 %

19,8 %

101,4 EUR/t

55,8 %

5,1 %

148,3 EUR/t

28,2 EUR/t

1,4 %

0

55,8 %

148,3 EUR/t

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Official Journal of the European Communities

L 301/37

Malaysia

Company

Injury
elimination
margin

Dumping
margin

Countervailing
duty rate
(resulting from
export subsidies)

Anti-dumping
duty rate

Proposed
anti-dumping
duty

Hualon
Sdn. Bhd.

Corporation(M)

52,1 %

7,8 %

0,2 %

7,6 %

36,0 EUR/t

MPI Polyester
Sdn. Bhd.

All others

Industries

54,2 %

34,2 %

0

34,2 %

160,1 EUR/t

34,2 %

Not applicable

34,2 %

160,1 EUR/t

Taiwan

Company

Injury elimination margin

Dumping margin

Proposed anti-dumping duty

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 %

50,2 EUR/t

47,0 EUR/t

69,5 EUR/t

53,8 EUR/t

12,4 %

69,5 EUR/t

Tailand

Company

Injury
elimination
margin

Dumping
margin

Countervailing
duty rate

Anti-dumping
duty rate

Proposed
anti-dumping
duty

Thai Shingkong Industry
Corporation Limited

22,6 %

32,5 %

8,4 %

14,2 %

132,2 EUR/t

All others

32,5 %

8,4 %

14,2 %

132,2 EUR/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 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.

(1) European Commission

Directorate-General Trade
Directorate B
TERV 0/13
Rue de la Loi/Wetstraat 200
B-1049 Brussels.

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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, it 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.

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 accepted (1) 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.

(131) A further company 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 cooperation (cf. recital 13). Accordingly, the 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.
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).

2.
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:

(1) See page 88 of this Official Journal.

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Official Journal of the European Communities

L 301/39

Country

Definitive duty
(euro/t)

TARIC additional code

India

Indonesia

Malaysia

Republic of Korea

Taiwan

Thailand

181,7

187,7

160,1

148,3

69,5

83,2

A999

A999

A999

A999

A999

A999

The above rates shall not apply to the products manufactured by the companies listed below, which

3.
shall be subject to the following anti-dumping duty rates:

Country

Company

Definitive duty
(euro/t)

TARIC additional
code

India

India

India

India

Indonesia

Indonesiea

Indonesia

Malaysia

Malaysia

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 Poyester Industries Sdn. Bhd.

Republic of Korea

Daehan Synthetic Fiber Co., Limited

Republic of Korea

Honam Petrochemical Corporation

Republic of Korea

SK Chemicals Co., Limited

Republic of Korea

Tongkong Corporation

Taiwan

Taiwan

Taiwan

Taiwan

Thailand

Far Eastern Textile Limited

Tuntex Distinct Corporation

Shingkong Synthetic Fibers Corporation

Nan Ya Plastics Corporation

Shingkong

Thai
Limited

Industry Corporation

130,8

181,7

200,9

223,0

187,7

92,1

178,9

36,0

160,1

28,2

101,4

0

148,3

50,2

69,5

47,0

53,8

83,2

A182

A181

A183

A184

A191

A192

A193

A186

A185

A194

A195

A196

A197

A188

A198

A189

A187

A190

L 301/40

EN

Official Journal of the European Communities

30.11.2000

In cases where goods have been damaged before entry into free circulation and, therefore, the price
4.
actually paid or payable is apportioned for the determination of the customs value pursuant to Article 145
of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementa-
tion of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (1), 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,

5.
circulation in accordance with the provisions of Article 2.

the definitive duty shall not apply to imports released for free

6.

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

Article 2

1.
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.

2. 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 ‘Under-
taking Invoice’ issued by the exporting companies mentioned in paragraph 3, containing the essential
elements listed in the Annex. 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

3.
additional codes:

Company

Country

TARIC additional code

Reliance Industries Limited

India

Engineering

Polymers

India

Pearl
Limited

P.T. Polypet Karyapersada

Indonesia

A181

A182

A193

Article 3

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, 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.

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, 27 November 2000.

For the Council

The President

L. FABIUS

(1) 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).

30.11.2000

EN

Official Journal of the European Communities

L 301/41

ANNEX

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

1. The Undertaking Invoice number.

2. The TARIC additional code under which the goods on the invoice may be customs-cleared at Community borders (as

specified in the Regulation).

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

6. 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 2000/745/EC. I declare that the information provided in this
invoice is complete and correct.’