Commission Regulation (EC) No 283/2004 of 18 February 2004 initiating an investigation concerning the possible circumvention of countervailing measures imposed by Council Regulation (EC) No 2597/1999 on imports of polyethylene terephthalate (PET) film originating in India by imports of polyethylene terephthalate (PET) film consigned from Brazil and from Israel, whether declared as originating in Brazil or Israel or not and making such imports subject to registration
Date: 2004-02-18
Institutions: European Commission
Subjects: India, countervailing charge, fraud against the EU, import, originating product, plastics, thin sheet

19.2.2004

EN

Official Journal of the European Union

L 49/25

COMMISSION REGULATION (EC) No 283/2004

of 18 February 2004

initiating an investigation concerning the possible circumvention of countervailing measures
imposed by Council Regulation (EC) No 2597/1999 on imports of polyethylene terephthalate (PET)
film originating in India by imports of polyethylene terephthalate (PET) film consigned from Brazil
and from Israel, whether declared as originating in Brazil or Israel or not and making such imports
subject to registration

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

D. GROUNDS

Having regard to the Treaty establishing the European
Community,

(6)

Having regard to Council Regulation (EC) No 2026/97 of 6
October 1997 on protection against subsidised imports from
countries not members of the European Community (1), as last
amended by Regulation (EC) No 1973/2002 (2),
(the basic
Regulation), and in particular Article 23(2) and Article 24(3)
and (5) thereof,

After having consulted the Advisory Committee,

Whereas:

(1)

(2)

(3)

(4)

A. REQUEST

The Commission has received a request pursuant
to
Article 23(2) of the basic Regulation to investigate the
possible circumvention of the countervailing measures
imposed on imports of polyethylene terephthalate (PET)
film (PET film) originating in India.

The request was lodged on 6 January 2004 by the
following Community producers: DuPont Teijin Films,
Mitsubishi Polyester Film GmbH and Nuroll SpA.

B. PRODUCT

The product concerned by the possible circumvention is
PET film originating in India, normally declared under
CN codes ex 3920 62 19 and ex 3920 62 90 (the
product concerned). These codes are given for informa-
tion only.

under

product

investigation

is polyethylene
The
terephthalate (PET) film consigned from Brazil and from
investigation) normally
Israel
declared under
the product
codes
concerned.

(the product under
same

the

as

The request contains sufficient prima facie evidence that
the countervailing measures on imports of PET film
originating in India are being circumvented by means of
transhipment via Brazil and via Israel.

(7)

The evidence submitted is as follows:

The request shows that a significant change in the
pattern of trade involving exports from India, Brazil and
Israel to the Community has taken place following the
imposition of measures on the product concerned, and
that there appears to be insufficient due cause or justifi-
cation other than the imposition of the duty for such a
change. This change in the pattern of trade appears to
stem from the transhipment of PET film originating in
India via Brazil and via Israel.

(8)

(9)

(10)

Furthermore, the request contains sufficient prima facie
evidence that the remedial effects of the existing counter-
vailing measures on the product concerned are being
undermined in terms of quantities. Significant volumes
imports of PET film from Brazil and from Israel
of
appear
the product
replaced imports of
concerned originating in India.

to have

the request contains

Finally,
sufficient prima facie
evidence that the imported PET film still benefits from
the subsidies as established in the original investigation.

Should circumvention practices covered by Article 23 of
the basic Regulation, other than transhipment, be identi-
fied in the course of the investigation, the investigation
may cover these practices also.

C. EXISTING MEASURES

(5)

The measures currently in force and possibly being
circumvented are countervailing measures imposed by
Council Regulation (EC) No 2597/1999 (3).

(11)

(1) OJ L 288, 21.10.1997, p. 1.
(2) OJ L 305, 7.11.2002, p. 4.
(3) OJ L 316, 10.12.1999, p. 1.

E. PROCEDURE

In the light of the above, the Commission has concluded
that sufficient evidence exists to justify the initiation of
an investigation pursuant
the basic
Regulation and to make imports of PET film consigned
from Brazil and from Israel, whether declared as origin-
ating in Brazil or Israel or not, subject to registration, in
accordance with Article 24(5) of the basic Regulation.

to Article 23 of

L 49/26

EN

Official Journal of the European Union

19.2.2004

(a) Questionnaires

(18)

(12)

(13)

In order to obtain the information it deems necessary
for its investigation, the Commission will send question-
naires to the exporters/producers and to the associations
of exporters/producers in Brazil and Israel, to the expor-
ters/producers and to the associations of exporters/
producers in India, to the importers and to the associa-
tions of importers in the Community which cooperated
in the investigation that led to the existing measures or
which are listed in the request, and to the authorities of
India, Brazil and Israel. Information, as appropriate, may
also be sought from the Community industry.

In any event, all
interested parties should contact the
Commission forthwith, but not later than the time limit
set in Article 3 of this Regulation in order to find out
whether they are listed in the request and, if necessary,
request a questionnaire within the time limit set
in
Article 3(1) of this Regulation, given that the time limit
set in Article 3(2) of this Regulation applies to all inter-
ested parties.

(14)

The authorities of India, Brazil and Israel will be notified
of the initiation of the investigation and provided with a
copy of the request.

(b) Collection of

information and holding of

hearings

(15) All interested parties are hereby invited to make their
views known in writing and to provide supporting
evidence. Furthermore, the Commission may hear inter-
ested parties, provided that
in
writing and show that there are particular reasons why
they should be heard.

they make a request

(16)

(17)

(c) Exemption from registration of

imports or

measures

In accordance with Article 23(3) of the basic Regulation,
imports of
the product under investigation may be
exempted from registration or measures if the importa-
tion does not constitute circumvention.

The possible circumvention takes place outside the Com-
munity. Article 23 of the basic Regulation is aiming at
countering circumvention practices without affecting
operators which can prove that they are not involved in
such practices, but it does not contain a specific provi-
sion providing for the treatment of producers in the
countries concerned which could establish that they are
not involved in circumvention practices. Therefore,
it
appears necessary to introduce a possibility for produ-
cers concerned to request an exemption from the regis-
tration of imports of their exported products or from
measures on these imports.

Producers wishing to obtain an exemption should apply
for it and submit any requested questionnaire reply
within the appropriate time limits, in order for it to be
established that they are not circumventing the counter-
vailing duties within the meaning of Article 23(1) of the
from
basic Regulation.
exemption from registration or measures to the extent
that their imports are from producers which are granted
such an exemption, and in accordance with Article 23(3)
of the basic Regulation.

Importers could still benefit

F. REGISTRATION

(19)

to Article 24(5) of

Pursuant
the basic Regulation,
imports of the product under investigation should be
made subject to registration in order to ensure that,
should the investigation result in findings of circumven-
tion, countervailing duties of an appropriate amount can
be levied retroactively from the date of registration of
such imports consigned from Brazil and from Israel.

G. TIME LIMITS

(20)

In the interest of sound administration,
should be stated within which:

time limits

— interested parties may make themselves known to
the Commission, present their views in writing and
submit questionnaire replies or any other informa-
tion to be taken into account during the investiga-
tion,

— interested parties may make a written request to be

heard by the Commission.

(21) Attention is drawn to the fact that the exercise of most
procedural rights set out in the basic Regulation depends
on the party's making itself known within the time
limits mentioned in Article 3 of this Regulation.

H. NON-COOPERATION

(22)

In cases in which any interested party refuses access to
or otherwise does not provide necessary information
within the time limits, or significantly impedes the inves-
tigation, findings, affirmative or negative, may be made
in accordance with Article 28 of the basic Regulation,
on the basis of the facts available.

(23) Where it is found that any interested party has supplied
false or misleading information, the information shall be
disregarded and use may be made, in accordance with
Article 28 of the basic Regulation, of the facts available.
If an interested party does not cooperate, or cooperates
only partially, and use of the facts available is made, the
result may be less favourable than if it had cooperated,

19.2.2004

EN

Official Journal of the European Union

L 49/27

HAS ADOPTED THIS REGULATION:

Article 1

An investigation is hereby initiated pursuant to Article 23(2) of
Regulation (EC) No 2026/97, in order to determine if imports
into the Community of polyethylene terephthalate (PET) film,
falling within CN codes ex 3920 62 19 and ex 3920 62 90
(TARIC codes 3920 62 19 01, 3920 62 19 04, 3920 62 19 07,
3920 62 19 17,
3920 62 19 14,
3920 62 19 11,
3920 62 19 27,
3920 62 19 24,
3920 62 19 21,
3920 62 19 37,
3920 62 19 34,
3920 62 19 31,
3920 62 19 47,
3920 62 19 44,
3920 62 19 41,
3920 62 19 57,
3920 62 19 54,
3920 62 19 51,
3920 62 19 61,
3920 62 19 74,
3920 62 19 67,
3920 62 19 92, 3920 62 90 31, 3920 62 90 92), consigned
from Brazil and from Israel, whether originating in Brazil or
Israel or not, are circumventing the measures imposed by
Council Regulation (EC) No 2597/1999 on imports of poly-
ethylene terephthalate (PET) film, originating in India.

Article 2

The Customs authorities are hereby directed, pursuant
to
Article 23(2) and Article 24(5) of Regulation (EC) No 2026/97,
to take the appropriate steps to register the imports into the
Community identified in Article 1 of this Regulation.

Registration shall expire nine months following the date of
entry into force of this Regulation.

The Commission, by regulation, may direct Customs authorities
to cease registration in respect of imports into the Community
of products manufactured by producers having applied for an
exemption of registration and having been found not to be
circumventing the countervailing duties.

Interested parties, if their representations are to be taken
2.
into account during the investigation, must make themselves
known by contacting the Commission, present their views in
writing and submit questionnaire replies or any other informa-
tion within 40 days from the date of the publication of this
Regulation in the Official Journal of the European Union, unless
otherwise specified.

Interested parties may also apply to be heard by the

3.
Commission within the same 40-day time limit.

4.
Any information relating to the matter, any request for a
hearing or for a questionnaire as well as any request for author-
isation of certificates of non-circumvention must be made in
writing (not in electronic format, unless otherwise specified)
and must indicate the name, address, e-mail address, telephone,
fax and/or telex numbers of the interested party. All written
submissions, including the information requested in this Regu-
lation, questionnaire replies and correspondence provided by
interested parties on a confidential basis shall be labelled as
‘Limited’ (1) and, in accordance with Article 29(2) of the basic
Regulation,
accompanied by a non-confidential
version, which will be labelled ‘For inspection by interested
parties’.

shall be

Commission address for correspondence:

European Commission
Directorate General for Trade
Directorate B
Office: J-79, 5/16
B-1049 Brussels
Fax (32-2) 295 65 05
Telex COMEU B 21877

Article 3

Article 4

Questionnaires should be requested from the Commission
1.
within 15 days from publication of this Regulation in the Offi-
cial Journal of the European Union.

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

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

Done at Brussels, 18 February 2004.

For the Commission

Pascal LAMY

Member of the Commission

(1) This means that

the document

is for internal use only.

the European Parliament and of

is
protected pursuant to Article 4 of Regulation (EC) No 1049/2001
of
(OJ L 145,
31.5.2001, p. 43). It is a confidential document pursuant to Article
29 of Council Regulation (EC) No 2026/97 (OJ L 288, 21.10.1997,
p. 1) and Article 12 of the WTO Agreement on Subsidies and Coun-
tervailing Measures.

the Council

It