Council Regulation (EC) No 1676/2001 of 13 August 2001 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of polyethylene terephthalate film originating in India and the Republic of Korea
Date: 2001-08-13
Institutions: Council of the European Union
Subjects: India, South Korea, anti-dumping duty, originating product, plastics, thin sheet

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Official Journal of the European Communities

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I

(Acts whose publication is obligatory)

COUNCIL REGULATION (EC) No 1676/2001

of 13 August 2001

imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed
on imports of polyethylene terephthalate film originating in India and the Republic of Korea

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), (the
‘basic Regulation’) and in particular Article 9 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 367/2001 (2)
(the ‘provisional Regulation’) imposed a provisional anti-
dumping duty on imports of polyethylene terephthalate
(‘PET’) film falling within ex CN code 3920 62 19 and ex
CN code 3920 62 90 and originating in India and the
Republic of Korea (‘Korea’).

It is recalled that the investigation period of dumping
and injury covered the period from 1 April 1999 to 31
March 2000 (‘IP’). The examination of trends relevant for
the injury analysis covered the period from 1 January
1996 to 31 March 2000 (‘period under consideration’).

B. SUBSEQUENT PROCEDURE

Following the imposition of provisional measures on
imports of PET film originating in India and Korea,
several
in
writing. The parties who so requested were also granted
an opportunity to be heard orally.

submitted comments

interested parties

(1)

(2)

(3)

(4)

(5)

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

(9)

Additional verification visits were carried out at
premises of the following users:

the

(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 55, 24.2.2001, p. 16.

(6)

(7)

(8)

— Emtec Magnetics GmbH, Ludwigshafen, Germany
— Rogers Induflex NV LEX NV, Gent, Belgium
— Leonhard Kurz GmbH & Co., Fürth, Germany
— Eurofoil, Blaenavon, U.K.

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 comments submitted by the parties
were considered, and, where appropriate, the provisional
findings have been modified accordingly.

C. PRODUCT CONCERNED AND LIKE PRODUCT

1. Product concerned

(a) Arguments of the parties

Some exporting producers re-iterated the argument that
metallised PET film should be excluded from the product
scope of the current proceeding on the grounds that
metallised PET film cannot be considered alike to base
PET film since it had different basic physical and tech-
nical characteristics, required different production equip-
ment and processes, being consequently more expensive
to produce and thus sold at a higher price. These parties
also argued that
the use of metallised PET film is
different from that of base PET film and is also classifi-
able
than CN codes
ex 3920 62 19 and 3920 62 90, namely within CN
code 3921.

under CN codes

other

(b) Findings of the investigation

The investigation showed that the metallisation process
consisting of the addition of metal, such as aluminium,
by a vapour deposition process, does not alter the basic
physical, technical and chemical characteristics of PET
film. Moreover, base and metallised PET film are in
many applications interchangeable and may have the
same, or similar, uses. Therefore the provisional findings

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in recital 19 of

the provisional Regulation,
set out
namely that metallised PET film and base PET film
constitute one single product and are classifiable under
the CN codes
i.e.
the proceeding,
covered by
ex 3920 62 19 and 3920 62 90, are confirmed.

(17)

(10)

(11)

the fact

It should be noted that
that an additional
production step is required for the production of metal-
lised PET film, with resulting higher cost of production
and sales price, is not an element which could justify per
se the exclusion of a certain type of PET film from the
product scope of the proceeding.

Finally, the investigation showed that metallised PET film
has to be distinguished from film, which is reinforced,
laminated, supported or similarly combined with other
materials. These processes modify the basic physical,
chemical and technical characteristics of PET film to
such an extent that the resulting product cannot be
considered to be the product concerned. In addition, it
should be noted that only when PET film is combined
with other materials in such a way, is the final product
classifiable under CN code 3921.

(12)

In the absence of further comments other than those
mentioned above, the product description as set out in
recitals 9 to 22 of
the provisional Regulation is
confirmed.

2. Like product

The general methodology for establishing the dumping
margins for those exporting producers, which neither
replied to the questionnaire nor otherwise made them-
selves known, as described in recitals 37 and 38 of the
provisional Regulation,
in the
case of Korea, as only one out of the three sampled
exporting producers was
found to have practised
dumping, the residual dumping margin was set at the
weighted average dumping margin of a representative
number of models with the highest dumping margins
exported by that exporting producer.

is confirmed. However,

(18)

It should be noted that in cases where an exporting
producer exported more than one product type to the
the weighted average overall dumping
Community,
margin was determined by computing the dumping
found on each type without zeroing ‘negative dumping’
found on individual types.

2. India

(a) Normal value and export price

(19)

In the absence of further comments, the findings of
recitals 39 to 42 of
the provisional Regulation are
confirmed.

(13)

In the absence of any comments, the definition of the
like product as described in recital 23 of the provisional
Regulation is confirmed.

(b) Comparison

D. DUMPING

(i) L e v e l o f

t r a d e

1. General methodology

(a) Normal value, export price and comparison

(14)

In the absence of any comments under these headings,
the provisional findings as set out in recitals 28 to 34 of
the provisional Regulation are confirmed.

(b) Dumping margins

(15)

(16)

The general methodology for establishing the dumping
margins for the companies investigated, as described in
recital 35 of the provisional Regulation, is confirmed.

The general methodology for establishing the dumping
margins for the cooperating companies not included in
the sample, as described in recital 36 of the provisional
Regulation, is confirmed. When the dumping margin for
the cooperating companies not included in the sample
was established, any zero and de minimis margins were
disregarded.

(20) One Indian exporting producer reiterated its claim for an
adjustment for differences in the level of trade between
sales of
the product concerned to traders on the
domestic and export markets (recital 47 of the provi-
sional Regulation).

(21)

It was also submitted, following disclosure of the essen-
tial facts and considerations on the basis of which provi-
sional measures were adopted, that two levels of trade
(end-users and traders) existed in both (domestic and
export) markets and that a selective comparison should
be made: that is, export prices to traders should be
compared with normal values based on sales to traders
and export prices to end-users compared with normal
values based on sales to end-users.

(22) However, the information submitted in the question-
naire reply and subsequently verified already indicated
that there were no consistent and distinct differences in
functions and prices for the different levels of trade for
comparable models when sold in the domestic market of
the exporting country. Consequently the findings set out
in recitals 46 and 47 of the provisional Regulation are
confirmed and the claim for a selective comparison is
rejected.

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(ii) O t h e r a l l o w a n c e s

(23)

to Article 2(10)(k)

The Indian exporting producers claimed that the adjust-
‘other
requested pursuant
ment
factors’ and/or Article 2(10)(b)
‘Import charges and
indirect taxes’ (depending on the exporter) of the basic
Regulation on the export price for the benefits received
under the Duty Entitlement Passbook (‘DEPB’) scheme
on a post-export basis should have been granted. They
claimed that
the income received from the DEPB
resulted in a lower export price and that therefore, the
Commission should have added this income to the
export price to ensure a fair comparison with the
normal value, as domestic sales do not benefit from such
income. Moreover, the Indian exporters claimed that the
deduction, in accordance with Article 14(1) of the basic
Regulation, of the export subsidies accounted for by the
existing countervailing duty from the anti-dumping duty
was legally not justified as the countervailing duties were
determined on the basis of a different
investigation
period.

(27)

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

expressed as

Ester Industries Limited

Flex Industries Limited

Garware Polyester Limited

Jindal Polyester Limited

Dumping margin for cooperating
companies not part of the sample

Residual dumping margin for
non-cooperating companies

64,5 %

42,9 %

65,3 %

0 %

57,70 %

65,3 %

3. Korea

(a) Normal value

(28)

verifications,

(24) Article 2(10) of the basic Regulation contemplates only
the possibility of adjustments that affect price compar-
ability. In the questionnaire replies and during the on-
spot
always
accounted for as ‘other income’ and not as a ‘negative
cost’ attributed to the cost of raw materials of
the
exported goods. Therefore, already on the basis of the
company's accounting records, there is no explicit link
between pricing of the exported goods and the DEPB
income received.

the DEPB benefit was

(25)

albeit

such subsidisation can,

The provision of Article 14(1) of the basic Regulation
which reflects Article VI of the GATT Agreement shows
that
indirectly, be
addressed in an anti-dumping investigation and any
regulation imposing an anti-dumping duty provided that
the product is not subject to both anti-dumping and
countervailing duties for the purpose of dealing with
one and the same situation arising from dumping or
from export subsidisation. The rationale behind Article
14(1) of the basic Regulation is indeed to avoid any
duplication of duties intended to counteract the same
situation arising from dumping or export subsidisation,
and therefore, countervailing duties
resulting from
export subsidies have to be deducted regardless of the
investigation period on the basis of which they were
determined. It is noted, as explained under recitals 78
and 79 below, that an adjustment under Article 14(1) of
the basic Regulation has been made. For all
these
reasons, the above request had to be rejected.

(c) Dumping margin

Two Korean cooperating exporting producers argued
that so-called local export sales (i.e. domestic sales fore-
seen for the export market after further processing and/
or packaging) had been excluded from the calculation of
normal value with no legal basis for doing so. However,
it is evident that Korean authorities permit such sales to
be made without the addition of any local sales tax
(VAT);
to the
purchaser the right to claim duty drawback and the sales
are usually made in a foreign currency. It is therefore
evident from the way that such sales are structured in
Korea that they are made for export and do not permit a
proper comparison. Thus the approach followed for
provisional determinations is maintained.

is also able to transfer

the vendor

(29)

In view of the above, the findings as described in recital
57 of the provisional Regulation are confirmed.

(b) Export price

(30)

Two of the exporting producers had related importers in
the Community and both indicated that they considered
that
the profit margin allocated to those importers
(5,5 %) was unreasonably high given that the functions
performed by the importers was limited to the re-
invoicing of sales, without playing an active role in the
sale itself. It was suggested that these related importers
did not generate profit per se, but merely received
commission on sales made. Nonetheless, the commis-
sion rate indicated cannot be taken as necessarily being
accurate as the parties are related. The fact that the
related importers may be remunerated on a fixed
commission basis does not necessarily bear any relation
to the functions performed by those importers. Further-
more, neither of the claimants submitted any specific
data which indicated that the margin used was not in
line with prevailing market conditions.

(26)

In the absence of any comments or new information,
the methodology set out in recitals 51 to 53 of the
provisional Regulation is confirmed.

(31)

the above,

In view of
findings as
described in recital 58 of the provisional Regulation are
confirmed.

the provisional

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(c) Comparison

weighted average to transaction approach to a weighted
average to weighted average approach.

(i) E x c h a n g e r a t e s f l u c t u a t i o n

(32)

Following a request by the Korean exporting producers
the adjustment for a sustained movement in exchange
rates was re-examined. Following this re-examination,
two months
the average exchange rate was that of
before the actual

invoice date.

(ii) D u t y d r a w b a c k

(36)

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

expressed as

Kolon Industries Limited

SKC Industries Limited

Toray Saehan Industries

Dumping margin for cooperating
companies not part of the sample

Residual dumping margin for
non-cooperating companies

0,0 %

7,5 %

0,0 %

7,5 %

13,4 %

(33) All of

the Korean cooperating exporting producers
considered that the methodology used in allocating duty
drawback to domestic sales was unreasonable, in partic-
ular because the raw materials concerned are used for
than PET film. The
manufacturing products other
Commission therefore
and
decided to adopt a revised two-step approach.

reconsidered the

issue

(34)

(35)

Firstly, the quantities of raw materials purchased and
used solely for PET film production, (whether intended
for domestic or export sales) were calculated using the
and expressed as
nationally approved coefficients
percentages of the totals of raw materials purchased.
These percentages were then applied to each of the
individual supplies of raw materials. Thus each raw
material was allocated to both domestic and export sales
(both product
in which the raw material was used,
concerned and other products),
in the appropriate
proportion. The allocation started with supplies carrying
the lowest duty rates, as explained in the provisional
Regulation. The result led to increased amounts of duty
drawback allowable for two exporting producers.

With the above exceptions concerning duty drawback
and exchange rate conversion, the provisional findings
as described in recitals 59 to 65 of the provisional
Regulation are confirmed.

(d) Dumping margin

transactions

The findings of recitals 66 and 67 of the provisional
Regulation are confirmed with the exception of one
cooperating exporting producer who objected to the use
of the comparison of a weighted-average normal value
to individual export
to determine its
dumping margin on the basis that the mere variation of
export prices by customer, region or time period does
not justify the use of the weighted average to transaction
method for the determination of the dumping margin.
The issue was re-examined and it was found that there
was a pattern of export prices which differs among
customers, the effect of which on the degree of dumping
being practised by the exporter was not significant. The
methodology for establishing the dumping margins for
the companies investigated as described in recitals 66
and 67 of
the provisional Regulation was therefore
revised in respect of this exporting producer from a

E. COMMUNITY INDUSTRY

(37)

(38)

Certain Indian exporting producers argued that the defi-
nition of the Community industry and, consequently,
the injury analysis, should not have been limited to the
three cooperating complainant Community producers,
but should have been extended to all the Community
producers,
including Fapack, which participated in
lodging the complaint but only provided some basic
information, and three other Community producers,
which are not complainants and are not related to any
exporting producers and which, as well, only submitted
some basic information.

It is confirmed that, as mentioned in recital 73 of the
provisional Regulation, all
these seven operators are
indeed Community producers and thus constitute the
Community production within the meaning of Article
4(1) of the basic Regulation. However, as described in
recital 70 of the provisional Regulation, the latter four
Community producers only submitted some basic infor-
mation but did not reply fully to the questionnaire
intended for Community producers. Therefore,
this
information could not be used for the purposes of the
assessment of the situation of the Community industry.
These Community producers were accordingly not
included in the definition of the Community industry.
The argument had therefore to be rejected.

(39) One interested party contested the finding that

the
Community industry accounted for more than 70 % of
the total Community production of PET film. This
element has been re-examined by the Commission, and
a clerical error was found. The Community industry
actually accounts for 60 % of
the total Community
production.

(40)

Certain interested parties claimed that if indeed metal-
lised PET film remains included in the definition of the
product concerned, certain producers of metallised PET
film should also be regarded as Community producers
forming part of the Community industry.

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(41)

The investigation showed that the companies in ques-
tion do not produce base PET film, but in fact purchase
base PET film from different sources and then perform
the additional metallisation process. This additional
processing step undertaken by them is however not in
them as
to
itself
Community producers of PET film.
Indeed, they are
simply processors of a product without changing its
basic physical, technical and chemical characteristics

considering

sufficient

justify

period. Moreover, significant price undercutting was
found for both imports originating in India and Korea,
which were sold via the same sales channels and with
similar commercial conditions. The argument has there-
fore to be rejected. Given the above, the findings of
recital 85 of the provisional Regulation, setting out that
that imports originating the countries concerned should
be assessed cumulatively, are hereby confirmed.

F. INJURY

(c) Volume, market shares and prices of the imports concerned

1. Community consumption

(46)

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

imports

(42)

In the absence of any new information, the provisional
findings concerning the Community consumption as
described in recitals 76 to 79 of the provisional Regula-
tion are confirmed.

(d) Price undercutting

2. Imports concerned

(a) Preliminary remark

(43)

Certain exporting producers raised the argument that the
imports attributable to exporting producers found not to
have dumped should be excluded for the analysis of the
injury aspect. However, even if such imports were to be
excluded from the analysis, the conclusions as to the
existence of material injury caused by dumped imports
would remain unchanged. Indeed, the price undercutting
would remain significant, as well as the increase in
volume and market shares and the remaining imports
found to be dumped would still represent more than
13 % of the Community market. The decrease observed
in the sales prices would also remain significant.

(b) Cumulative assessment of

the

effects of

the

imports

concerned

(44)

Certain Indian exporting producers argued that imports
of PET film originating in India should not be cumulated
with those originating in Korea in view of the differences
existing in the conditions of competition. The claim was
based on the grounds that
the
market shares and prices developed differently during
the period 1997 to IP.

the import volume,

(45) As

regards

the period under consideration,

the conditions of competition between
Korean and Indian imports, when taking into account
i.e.
the totality of
between 1996 and the IP, and not, as suggested, the
period 1997 to the IP, the volume of imports, market
shares and import prices in fact developed in a similar
way. It is also confirmed that import volumes from both
countries were substantial during the investigation

fact

(47) As regards the price undercutting margins, certain Indian
exporting producers questioned the
the
Commission services did not consider, in the calculation
of the weighted average export prices, the countervailing
duties imposed on imports of PET film originating in
India in 1999. They also reiterated their request for a
level of trade adjustment, since Indian exporters mostly
sell to wholesalers while the Community industry nearly
always sells directly to users of PET film.

that

(48)

The calculations of price undercutting margins were
revised by adding to the export prices the countervailing
duties, where applicable. As regards the level of trade
adjustment, the further analysis confirmed firstly, that, as
described in recital 93 of the provisional Regulation, the
selling price to wholesalers or to users does not depend
on the type of customer but rather on the purchased
volumes, and secondly, that the two levels of trade are
not clearly separated and that there is no clear price
difference between them. Moreover, it is confirmed that
the product
the Community
concerned to distributors and wholesalers and not only
to users, contrary to what was claimed by some inter-
ested parties. Several companies were indeed found to be
supplied by both exporting producers from the coun-
tries concerned and the Community industry.

also sells

industry

(49)

the

Before
above background, price undercutting
margins were reviewed on the basis of the evidence
submitted by interested parties and amended where
appropriate. The revised weighted average price under-
cutting margins found per country, expressed as a
percentage of the Community industry prices, are as
follows:

— Korea: from 14,9 % to 36,8 %, on weighted average

20,6 %

— India: from 34,5 % to 44,8 %, on weighted average

by 37,5 %.

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3. Situation of the Community industry

the
Anti-dumping Agreements on the grounds that
Agreement refers to total sales, thus including exports.

(50)

(51)

in the provisional Regulation that

interested parties questioned the conclusion
Several
the
reached
Community industry suffered material
injury on the
grounds that some factors have developed positively
between 1996 and the IP (i.e. production capacity,
production,
stocks and
sales volume, productivity,
wages).

(56)

In this respect, it should be noted that not all the factors
enumerated in Article 3(5) of the basic Regulation have
to indicate a negative development in order to conclude
that the Community industry is suffering material injury.
In the current case, the Community industry lost market
shares and, due to the price depressing effect of imports
it had to significantly
from the countries concerned,
lower its sales prices, leading to a severe deterioration of
its financial situation.

(52) A Korean exporting producer questioned that

the
Community industry suffered material
injury on the
grounds that it is viable and competitive, as set in recital
159 of the provisional Regulation and that it still held
an important position on the Community market during
the IP.

(53)

The fact that the Community industry is viable and
competitive does not preclude the finding of material
injury. Indeed, the finding, that the Community industry
is viable and competitive had been made in the context
of the Community interest analysis which,
inter alia,
taking or not-taking anti-
examined the effect of
dumping measures on the various operators in the
Community. All this does not invalidate the conclusion
that the Community industry suffered material injury as
evidenced by a number of factors including the signifi-
loss of market share during the period under
cant
consideration. The
to be
rejected.

argument has

therefore

(54) A Korean exporting producer alleged that the increase of
the production capacity by the Community industry,
that took place between 1998 and 1999, is in contradic-
tion with the fact that its investments remained limited
It should be noted in that
during the same period.
respect
related to the production
investments
capacity increase took place during the years 1997 and
1998, as set out in recital 108 of the provisional Regula-
tion. As however the new capacity installed was only
operational in 1998 and 1999, the increase in produc-
tion capacity and the investments did not take place in
the same period.

that

In this respect, it should be noted that the injury assess-
ment was undertaken in line with the relevant provi-
sions of the basic Regulation and consistent practice of
the Community institutions. In addition,
it should be
noted that Article 3(4), in conjunction with Article 3(1)
and (2), of the WTO Anti-dumping Agreement, clearly
refers to the evaluation of
the impact of dumped
imports on prices in the domestic market and on the
situation of the domestic industry. It also follows from
the purpose of this type of investigation where, inter alia,
the effect of dumped imports from one or more coun-
tries into the Community are at issue (and not the effect
of dumped imports into third country markets) that
injury of the Community industry must be found to
exist on the domestic market only and that the situation
with respect to exports or on export markets is therefore
irrelevant in the context of the injury assessment. The
argument has therefore to be rejected. However, and in
line with consistent practice, the Community industry's
export performance has been examined in the context of
the question of causal link between the dumped imports
and the injurious situation, as set in recital 144 of the
provisional Regulation.

(57) On the basis of the above, the provisional findings as
regards the material injury suffered by the Community
industry during the IP are confirmed.

(58)

(59)

G. CAUSATION

Some interested parties claimed that the assessment of
link was flawed since the deterioration of
the causal
certain injury factors, i.e. profitability, cash flow, return
on investments and ability to raise capital, should be
considered as being linked to autonomous cyclical devel-
opments and to the massive investments made by the
Community industry during the period considered rather
than to the impact of the imports concerned.

the

financial

analysis of

there is no indication that

the Community
Firstly,
industry suffers from a cyclical downturn. Secondly, the
further
the
Community industry confirmed that
its deterioration
was mainly due to the decrease of its unit sales prices.
Moreover, since during the whole period under consid-
eration the unit cost of production decreased, the deteri-
oration cannot be attributed to higher cost of produc-
tion related to the new investments.

situation of

(55)

limiting the
Certain Indian exporters claimed that
analysis of
to the
sales
the Community industry's
domestic sales, in terms of volumes and prices, does not
comply with the provision of Article 3(4) of the WTO

(60)

In the light of the above and in the absence of any new
information,
findings as described in
recitals 119 to 123 of the provisional Regulation are
confirmed.

the provisional

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H. COMMUNITY INTEREST

(65)

1. Unrelated importers and traders

(61) One unrelated importer argued that, contrary to what
was set out in recital 188 of the provisional Regulation,
the imposition of countervailing duties reduced the
availability of
Indian PET film on the Community
market and that the level of the anti-dumping duties as
set out in this Regulation will make it unable to source
PET film from its traditional Indian suppliers. It further
argued that the PET film produced by the Community
industry outside the Community is imported by the
Community industry itself, and that, due to this relation-
this would eliminate any other real alternative
ship,
sources of supply.

stage,

It should be recalled in this respect that, as found at the
provisional
investigated users purchased on
average around 58 % of their PET film consumption
from the Community industry, around 28 % from the
countries concerned and around 14 % in other third
countries. Furthermore, a significant number of actors
will remain active on the Community market, i.e. the
Community industry and other Community producers,
an economic operator in the Community, at least some
of exporting producers in the countries concerned and
in other third countries. Therefore, even if it cannot be
excluded that some exporting producers in the countries
concerned will decrease their level of exports to the
to the anti-dumping measures
Community further
shortage on the
imposed,
Community market will occur. On the other hand,
should measures not be imposed, the possible disappear-
ance of the Community industry's manufacturing activi-
ties for PET film would, as set out in recital 185 of the
provisional Regulation, create severe supply constraints.

is unlikely that

it

a

(62)

(63)

(64)

given the different

In this respect, Eurostat data showed that between the
year 1999 (the provisional countervailing duties were
imposed in August 1999) and the year 2000, imports
from India increased by 11 %. As to the level of the
anti-dumping duties proposed,
it cannot be excluded
that they will result in an increase of the import prices.
levels of measures
However,
proposed, it can be expected at the same time that some
of the exporting producers concerned will continue to
sell on the Community market, albeit at non-dumped
prices. Regarding the existence of alternative sources of
supply,
the
Community industry's purchases of PET film originating
in the US and Japan, the two major exporting countries
concerned by this
which are not
countries
the total
represented around 35 % of
proceeding,
imports from these countries. It is therefore confirmed
that other alternative sources of supply are available.

it appears that, during the year 1999,

the

2. Users of PET film in the Community

It should be noted that out of the 23 users that cooper-
ated at the provisional stage of the proceeding, and
purchasing slightly over 40 % of the total imports from
the countries concerned, only one expressed its concerns
after the imposition of the provisional duties. This low
degree of reactions might suggest that the measures
would not have such an important impact on the users
concerned.

Four other users, which made themselves known after
the imposition of the provisional measures, argued that
the imposition of duties could limit
their choice of
suppliers and possibly create a shortage of PET film in
the Community market. Those users also claimed that a
increase of PET film has occurred in the
price
Community market
since provisional duties were
imposed, with a negative effect on their competitiveness
on the world market.

trade practices. Sales prices

(66) As to the level of prices, it should be noted that users
have until recently benefited from artificially low prices
due to unfair
in the
Community market decreased by an average of 40 %
between 1996 and the IP. Even if a price increase for
PET film in the Community cannot be excluded, it is
expected that it will be moderate. This is reinforced in
particular by the level of duties imposed for certain
exporting producers concerned and the presence of a
certain number of actors, which will compete with each
other on the Community market.

(67) Moreover, the further analysis and verification visits to
users confirmed that PET film, as raw material
for
different finished products, is frequently not a significant
cost item, that products incorporating PET film only
account for a small proportion of their total production
and, finally, that users also source their products in the
Community and other third countries not concerned by
the proceeding. It can however not be excluded that, for
certain users for which PET film represents a crucial raw
material, the anti-dumping duties will have an important
impact on the total cost of production. Nevertheless, this
does not alter the average overall results of the invest-
igation. The finding of recital 183 of the provisional
Regulation that the imposition of duties will probably
not have, on average, a significant impact on the users
of PET film,

is therefore confirmed.

3. Conclusion on the Community interest

(68)

In the absence of any new information regarding the
Community interest, the findings as described in recitals
156 to 191 of the provisional Regulation are confirmed.

L 227/8

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Official Journal of the European Communities

23.8.2001

I. DEFINITIVE ANTI-DUMPING MEASURES

margin higher than the dumping margins. The argument
has therefore no practical

impact.

(69)

(70)

(71)

(72)

(73)

1. Injury elimination level

Based on the methodology explained in recitals 193 to
the provisional Regulation, and taking into
195 of
account
the arguments and modifications mentioned
above in relation to price undercutting calculations, an
injury elimination level has been established for the
purposes of establishing the level of measures to be
definitively imposed. However,
regarding the non
consideration of the countervailing duties, it should be
noted that, as explained in recital 198 of the provisional
Regulation, export subsidies are deducted from the
proposed anti-dumping duties pursuant to Article 14(1)
of the basic Regulation after having applied the lesser
duty rule, and there is accordingly no need to consider
them at the level of the injury margin calculation.

Certain Indian exporting producers argued that
the
injury margins have been incorrectly calculated. It has
been claimed that the injury margin should be expressed
as a percentage of the total cif turnover and not be
limited to the cif turnover of the comparable models.
They based their arguments on the conclusions of the
WTO Appellate body in the bed linen case (1).

Firstly, it should be noted that these conclusions have
been drawn in the context of dumping calculations and
are not relevant in the context of injury calculations.
Secondly, it is consistent practice to express the injury
amount as a percentage of the cif turnover of those
models which were used in order to establish the said
injury amount. The approach proposed by the Indian
exporting producers in question would in fact result in
the use of figures which are not comparable. For all
these reasons, the claim had to be rejected.

The Community industry submitted that a profit margin
of 13 % on turnover would be more appropriate than
the 6 % profit margin that was used for the provisional
injury margin calculation. It argued that a company's
own capital resources should at least earn a return on
net assets which equals bank loan rates. It was further
claimed that this level of profit was reached in 1996,
when conditions of fair competition prevailed.

In this respect, it should be noted that the profit margin
that is to be used for the determination of the non
injurious price should be understood as the profitability
level that could reasonably be reached in the absence of
injurious dumping. However, it is not important in this
case to define a conclusive percentage given that the
injury margins are already on the basis of a 6 % profit

(1) European Communities — Anti-dumping duties on imports of

cotton-type bed linen from India, WT/DS/AB/R, 1.3.2001.

(74) Given the above, and in the absence of new evidence,
the methodology used for establishing the injury elimi-
nation level as described in recitals 193 to 195 of the
provisional Regulation is confirmed.

2. Form and level of the duties

(75)

(76)

the imports of

The investigation showed that
the
product have also taken place under CN codes other
i.e. CN codes
than those covered by this proceeding,
ex 3920 62 19 and 3920 62 90. The attention of the
customs authorities is accordingly drawn to this misclas-
sification.

In the light of the foregoing and in accordance with
Article 9(4) of the basic Regulation, a definitive anti-
dumping duty should be imposed at the level of the
dumping margins found, since they were in all cases
lower than the injury margins.

(77) As regards the residual duty to be applied to the non
cooperating exporting producers of the respective coun-
tries, as the level of cooperation was considered signifi-
cant in both countries, for India the residual duty should
be fixed on the basis of the highest duty rate established
for the sampled cooperating producers. For Korea, as
only one of the three sampled exporting producers was
found to have practised dumping the residual duty
should be set, in application of the lesser duty rule, at
the weighted average dumping margin of a repres-
entative number of models with the highest dumping
margins exported by that exporting producer.

(78) As recalled in recitals 50 and 198 of the provisional
Regulation, Article 14(1) of the basic Regulation makes
it mandatory that no product be subject to both anti-
dumping and countervailing duties for the purpose of
dealing with the same situation arising from dumping or
export subsidisation. In this context, the fact that the
countervailing duties were established on a different IP
and that the amount of export subsidy in the anti-
subsidy IP and the anti-dumping IP are different,
is
irrelevant. The rationale behind Article 14(1) of the basic
Regulation is indeed to avoid any duplication of duties
intended to counteract the same situation arising from
dumping or export subsidisation, and therefore, counter-
vailing duties resulting from export subsidies have to be
deducted regardless of the investigation period on the
basis of which they were determined. It is also noted
that no request for a review of the countervailing meas-
ures has been received. Therefore, the provisional find-
ings as described in recitals 50 and 198 of the provi-
sional Regulation are confirmed.

23.8.2001

EN

Official Journal of the European Communities

L 227/9

(79)

Consequently, as regards anti-dumping duties for India, the countervailing duty in force that
corresponds to export subsidies was deducted from the anti-dumping duty to be applied. For any
non-cooperating companies, the deduction corresponds to the export subsidy of the cooperating
company on the basis of which the residual dumping margin (and thus the residual duty) was
established.

(80) On the basis of the above, and taking into account the findings of the previous anti-subsidy
investigation, the proposed definitive duty rates, expressed on the cif Community border price,
customs duty unpaid, are as follows:

India

Company

Export subsidy
margin

Total subsidy
margin

Dumping
margin

CVD duty

AD duty

Total duty rate

Ester Industries Ltd

12,0 %

12,0 %

64,5 %

12,0 %

52,5 %

64,5 %

Flex Industries Ltd

12,5 %

12,5 %

42,9 %

12,5 %

30,4 %

42,9 %

Garware Polyester Ltd

2,7 %

3,8 %

65,3 %

3,8 %

62,6 %

66,4 %

Jindal Polyester Ltd

MTZ Polyesters Ltd

7,0 %

8,7 %

7,0 %

0 %

7,0 %

0 %

7,0 %

8,7 %

57,7 %

8,7 %

49,0 %

57,7 %

Polyplex Corp. Ltd

19,1 %

19,1 %

57,7 %

19,1 %

38,6 %

57,7 %

All other companies

12,0 % (1)

19,1 %

65,3 %

19,1 %

53,3 %

72,4 %

(1) For the purpose of calculating the final anti-dumping duty, the export subsidy margin of the company on the basis of which the

dumping margin for the non-cooperating companies is based was taken into consideration.

Korea

Company

HS Industries

Hyosung Corp

Kohap Corp.

Kolon Industries Limited

SKC Industries Limited

Toray Saehan Industries

All other companies

AD duty

7,5 %

7,5 %

7,5 %

0,0 %

7,5 %

0,0 %

13,4 %

(81)

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

(82) 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

L 227/10

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Official Journal of the European Communities

23.8.2001

in
entities) should be addressed to the Commission (1) forthwith with all relevant information,
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 will, if appropriate, after consultation of the Advisory Committee, amend the Regula-
tion accordingly by updating the list of companies benefiting from individual duty rates.

3. Collection of provisional duties

In view of the magnitude of the dumping margins found and in the light of the level of the injury
caused to the Community industry, it is considered necessary that the amounts secured by way of
the provisional anti-dumping duty, imposed by the provisional Regulation, should be definitively
collected at the rate of the duty definitively imposed. Where the definitive duties are higher than the
provisional duties, only the amounts secured at the level of the provisional duties should be
definitively collected.

4. Undertakings

Subsequent to the imposition of provisional anti-dumping measures, a number of exporting produ-
cers in India offered price undertakings in accordance with Article 8(1) of the basic Regulation. By
doing so, they have agreed to sell the product concerned at or above price levels which eliminate the
injurious effects of dumping. The companies will also provide the Commission with regular and
detailed information concerning their exports to the Community, meaning that the undertakings can
be monitored effectively by the Commission. Furthermore, the sales structure of these exporting
producers is such that the Commission considers that the risk of circumventing the agreed under-
taking is limited.

In view of this, the offers of undertakings are therefore considered acceptable and the companies
concerned have been informed of the essential facts, considerations and obligations upon which
acceptance is based.

To further enable the Commission to effectively monitor the compliance of the companies with their
undertakings, when the request for release for free circulation is presented to the relevant customs
authority, exemption from the anti-dumping duty shall be conditional on the presentation of a
commercial invoice containing at least the elements listed in the Annex. This level of information is
also necessary to enable customs authorities to ascertain with sufficient precision that shipments
correspond to the commercial documents. 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 will
instead be payable.

(83)

(84)

(85)

(86)

(87)

It should be noted that in the event of a breach or withdrawal of the undertaking or a suspected
breach, an anti-dumping duty may be imposed, pursuant to Article 8(9) and (10) of the basic
Regulation.

5. Duration of measures

(88)

The anti-dumping measures would be in force until 2006, whereas the existing countervailing duties
against India are bound to expire in 2004. In the event of the expiry (or change) of the counter-
vailing measures, the level of the anti-dumping duties should be revised, since they currently take
account of the fact that countervailing duties are already in place,

HAS ADOPTED THIS REGULATION:

Article 1

1.
A definitive anti-dumping duty is hereby imposed on imports of polyethylene terephthalate (‘PET’)
film falling within CN codes ex 3920 62 19 and ex 3920 62 90 (TARIC codes: 3920 62 19*10,
3920 62 19*15, 3920 62 19*25, 3920 62 19*30, 3920 62 19*35, 3920 62 19*40, 3920 62 19*45,
3920 62 19*50, 3920 62 19*55, 3920 62 19*60, 3920 62 19*62, 3920 62 19*64, 3920 62 19*65,
3920 62 19*70, 3920 62 19*75, 3920 62 19*80, 3920 62 19*81, 3920 62 19*85, 3920 62 19*87,
3920 62 19*89, 3920 62 19*91, 3920 62 90*30 and 3920 62 90*91) and originating in India and the
Republic of Korea.

(1) European Commission

DG Trade
Directorate B
TERV 0/10
Rue de la Loi/Wetstraat 20
B-1049 Brussels/Belgium.

23.8.2001

EN

Official Journal of the European Communities

L 227/11

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

2.
before duty, shall be as follows for products originating in:

India

India

India

India

India

India

India

Korea

Korea

Korea

Korea

Country

Company

Ester Industries Limited
75-76, Amrit Nagar,
Behind South Extension Part — I,
New Delhi — 110 003
India

Flex Industries Limited
A-1, Sector 60,
Noida 201 301 (U.P.)
India

Garware Polyester Limited
Garware House
50-A, Swami Nityanand Marg
Vile Parle (East)
Mumbai 400 057
India

Jindal Polyester Limited
115-117, Indra Prakash Building
21, Barakhamba Road
New Delhi 110 001
India

MTZ Polyesters Limited
Saranath Centre, Upvan Area,
Upper Govind Nagar, Malad (E)
Mumbai 400 097
India

Polyplex Corporation Limited
B-37, Sector-1,
Noida 201 301
Dist. Gautam Budh Nagar
Uttar Pradesh
India

All other companies

Kolon Industries Inc.
Kolon Tower,
1-23, Byulyang-dong
Kwacheon-city,
Kyunggi-do
Korea

SKC Co., Ltd.
SKC Bldg., 23-10, Youido-Dong
Yongdungpo-Gu
Seoul 150-010
Korea

Toray Saehan Inc.
17F, LG Mapo B/D
275 Kongdug-Dong
Mapo-Gu
Seoul 121-721
Korea

HS Industries Co., Ltd
Kangnam Building, 8th floor
1321, Seocho-Dong
Seocho-Ku
Seoul
Korea

Definitive duty
(%)

TARIC additional code

52,5

A026

30,4

A027

62,6

A028

0

A030

49,0

A031

38,6

A032

53,3

0,0

7,5

0,0

A999

A244

A224

A222

7,5

A226

L 227/12

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Official Journal of the European Communities

23.8.2001

Country

Company

Definitive duty
(%)

TARIC additional code

Korea

Korea

Hyosung Corporation
450, Kongduk-Dong
Mapo-Ku
Seoul
Korea

Kohap Corp.
No. 89-4, Kyungun-Dong
Chongro-Ku
Seoul
Korea

7,5

7,5

A225

A223

Korea

All other companies

13,4

A999

Notwithstanding Article 1(1), the definitive duty shall not apply to imports released for free circula-

3.
tion in accordance with Article 2.

4.

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

Article 2

1.
Imports under one of the following TARIC additional codes which are produced and directly exported
(i.e. shipped and invoiced) by a company named below to a company in the Community acting as an
importer shall be exempt from the anti-dumping duties imposed by Article 1 provided that they are
imported in conformity with paragraph 2.

Country

Company

TARIC additional code

India

India

India

India

India

Ester Industries Limited
75-76, Amrit Nagar,
Behind South Extension Part — I,
New Delhi — 110 003
India

Flex Industries Limited
A-1, Sector 60,
Noida 201 301 (U.P.)
India

Garware Polyester Limited
Garware House
50-A, Swami Nityanand Marg
Vile Parle (East)
Mumbai 400 057
India

MTZ Polyesters Limited
Saranath Centre, Upvan Area
Govind Nagar, Malad (E)
Mumbai 400 097
India

Polyplex Corporation Limited
B-37, Sector-1,
Noida 201 301
Dist. Gautam Budh Nagar
Uttar Pradesh
India

A026

A027

A028

A031

A032

23.8.2001

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Official Journal of the European Communities

L 227/13

2.

Imports mentioned in paragraph 1 shall be exempt from the duty on condition that:

(a) a commercial invoice containing at least the elements of the necessary information listed in the Annex
is presented to Member States customs authorities upon presentation of the declaration for release into
free circulation; and

(b) the goods declared and presented to customs correspond precisely to the description on the commercial

invoice.

Article 3

The amounts secured by way of provisional anti-dumping duties pursuant to the provisional Regulation
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, 13 August 2001.

For the Council

The President

L. MICHEL

L 227/14

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Official Journal of the European Communities

23.8.2001

ANNEX

Necessary information for commercial invoices accompanying sales made subject to an undertaking

1. The heading ‘COMMERCIAL INVOICE ACCOMPANYING GOODS SUBJECT TO AN UNDERTAKING’

2. The name of the company mentioned in Article 2(1) which issues the commercial

invoice

3. The commercial

invoice number

4. The date of issue of the commercial

invoice

5. The TARIC additional code under which the goods on the invoice are to be customs cleared at the Community frontier

including:

6. The exact description of the goods,
— the product code number (PCN),
— the technical specification of the goods including the thickness (µm), whether or not the goods have had
coating/surface treatment after the process (e.g. corona, chemical, metallisation or no coating or surface treatment
after the process), the mechanical properties (e.g. balanced or tensilised), clarity/opacity (e.g. clear film with haze
< 2 %, hazy film with haze between 2 and 40 %, white film with haze > 40 %, coloured),

— the company product code number (CPC) (if applicable),
— CN code,
— quantity (to be given in kg).

7. The description of the terms of the sale,

including:

— price per kg,
— the applicable payment terms,
— the applicable delivery terms,
— total discounts and rebates.

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

9. The name of the official of the company that has issued the 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 2001/645/EC. I declare that the information provided in this invoice is
complete and correct.’