Council Regulation (EC) No 823/2004 of 26 April 2004 amending Regulation (EC) No 2604/2000 imposing a definitive anti-dumping duty on imports of certain polyethylene terephthalate originating, inter alia, in Thailand
Date: 2004-04-26
Institutions: Council of the European Union
Subjects: Thailand, customs duties, import, originating product, plastics

29.4.2004

EN

Official Journal of the European Union

L 127/7

COUNCIL REGULATION (EC) No 823/2004

of 26 April 2004

amending Regulation (EC) No 2604/2000 imposing a definitive anti-dumping duty on imports of
certain polyethylene terephthalate originating, inter alia, in 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)
(the
basic Regulation), and in particular Article 11(4) thereof,

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

Whereas:

A. MEASURES IN FORCE

certain polyethylene

The measures currently in force are definitive anti-
dumping duties imposed by Regulation (EC) No 2604/
2000 (2), according to which imports into the Com-
munity of
(the
product concerned) originating in Thailand are subject
to a duty,
the specific amount of
EUR 83,2 per tonne. Pursuant to the same Regulation,
anti-dumping duties were also imposed against imports
of
Indonesia,
concerned from India,
Malaysia, the Republic of Korea and Taiwan.

in the form of

the product

terephthalate

It should be noted that the imports originating in Thai-
land are also subject to a definitive countervailing duty
of EUR 49,1 per tonne, imposed by Regulation (EC) No
2603/2000 (3). Countervailing duties were also imposed
concerning imports from India and Malaysia.

(4)

(5)

(6)

It should be noted that the Commission simultaneously
received,
from the same Thai producer, a request to
initiate an accelerated review of Regulation (EC) No
2603/2000. This parallel proceeding is subject to a sepa-
rate Council Regulation.

2. Initiation of a ‘new exporter’ review

The Commission examined the evidence submitted by
the Thai exporting producer concerned and considered it
sufficient to justify the initiation of a review in accord-
ance with Article 11(4) of the basic Regulation. After
consultation of the Advisory Committee and after the
Community industry concerned had been given the
opportunity to comment, the Commission initiated, by
Regulation (EC) No 1292/2003, a review of Regulation
(EC) No 2604/2000 with regard to Indo Pet and
commenced its investigation.

Pursuant to the regulation initiating the review, the anti-
dumping duty imposed by Regulation (EC) No 2604/
2000 with regard to imports of the product concerned
produced by the company concerned were repealed.
Simultaneously, pursuant to Article 14(5) of the basic
Regulation, customs authorities were directed to take
appropriate steps to register such imports.

B. CURRENT INVESTIGATION

3. Product concerned

1. Request for a review

The Commission subsequently received a request
to
initiate a ‘new exporter’ review of Regulation (EC) No
2604/2000, pursuant to Article 11(4) of the basic Regu-
lation, from the Thai producer Indo Pet (Thailand) Ltd
(Indo Pet). This company claimed that it was not related
to any of the exporting producers in Thailand subject to
the anti-dumping measures in force with regard to the
product concerned. Furthermore, it claimed that it had
not exported the product concerned during the original
period of investigation (i.e. from 1 October 1998 to 30
September 1999), but had exported the product
concerned to the Community since then.

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

(EC) No 461/2004 (OJ L 77, 13.3.2004, p. 12).

(2) OJ L 301, 30.11.2000, p. 21. Regulation as last amended by
Commission Regulation (EC) No 1292/2003 (OJ L 181, 19.7.2003,
p. 20).

(3) OJ L 301, 30.11.2000, p. 1. Regulation as amended by Regulation

(EC) No 822/2004 (see page 3 of this Official Journal).

(7)

(8)

in the original

The product covered by the current review is the same
as
i. e. polyethylene
investigation,
terephthalate (PET) with a coefficient of viscosity of
78 ml/g or higher, according to DIN (Deutsche Indus-
trienorm) 53728. It is currently classifiable within CN
code 3907 60 20.

4. Parties concerned

the
company
The Commission officially
advised
concerned and the representatives of
the exporting
country of the initiation of the review. Furthermore, it
gave other parties concerned the opportunity to make
their views known in writing and to request a hearing.
No such request was however received.

(1)

(2)

(3)

L 127/8

EN

Official Journal of the European Union

29.4.2004

(9)

The Commission also sent out a questionnaire to the
company concerned and received a reply within the
deadline. The Commission sought and verified all the
information deemed necessary for the determination of
dumping, and a verification visit was carried out at the
premises of the company concerned.

5. Investigation period

(10)

The investigation of dumping covered the period from 1
January 2002 to 31 March 2003 (the investigation
period, or IP).

6. Methodology

(11)

The same methodology as that used in the original
investigation was applied in the current investigation.

C. SCOPE OF THE REVIEW

(12) As no request for a review of the findings on injury was
made in the request for the investigation, the review was
limited to dumping.

(20)

D. RESULTS OF THE INVESTIGATION

confirmed

investigation

The
company
concerned had not exported the product concerned
during the original period of investigation and that it
had begun exporting to the Community only after this
period.

that

the

(17)

(18)

it was found that
In the course of the investigation,
during the investigation period, only two sales transac-
tions to the Community were recorded, for a respective
volume of 40 and 20 tonnes. These two transactions
represented, during the same period, 0,1 % of the total
its total export
company sales volume and 0,4 % of
volume.

These sales transactions took place in February and
March 2002, i.e. shortly before Indo Pet first contacted
the Commission with a view to requesting this
newcomer review. By way of background, it should be
noted that Indo Pet did not record any further export
sales to the Community between then and the on-the-
spot investigation.

(19) As to prices,

the investigation revealed that,

for the
grade of PET most commonly sold both on domestic
and export markets, the Community export price for the
two abovementioned transactions was around 45 %
higher than Indo Pet's average export price to non-EU
countries.

If only the export sales to the EU neighbouring countries
that will shortly join the Community and which are
partly supplied by traders located in the Community are
considered, it was even found that the price of the two
Community transactions concerned was around 60 %
transactions
exports. The
higher
concerned in the case of the above countries were much
more substantial
in volume during the IP than the
export transactions to the Community, and therefore
likely better to reflect
the export price
normally practised by Indo Pet.

the level of

than these

sales

according

documentary

evidence
to
Furthermore,
submitted, Indo Pet was able to satisfactorily demon-
strate that it did not have any direct or indirect links
with any of the Thai exporting producers subject to the
anti-dumping measures in force with regard to the
product concerned.

it should be noted that

the
By way of background,
exporter concerned is, however,
related to another
exporting producer located in Indonesia and which is, as
mentioned above, also subject to anti-dumping duties on
imports of the same product in the Community. The
investigation revealed that after the current IP, this Indo-
nesian exporting producer set up a factory in Thailand
that became Indo Pet's exclusive source of supply for the
essential raw material used to produce the product
concerned. This raw material represents around 90 % of
the
the product
total
concerned.

cost of manufacturing of

(21)

Finally, the investigation showed that Indo Pet's overall
export price was on average not only below its domestic
price, but also below its cost of production.

(22)

it is considered that the two
For the above reasons,
export sales transactions to the Community during the
IP were not significant enough to constitute a represen-
tative basis for the assessment of existence of dumping.
Hence, it is considered that the level of the duty should
therefore be maintained at the level established in the
original investigation.

E. AMENDMENT OF THE MEASURES BEING REVIEWED

(16)

The Commission examined whether
the quantities
exported by the exporting producer concerned in Thai-
land and their corresponding prices were significant
enough to constitute a representative basis for the assess-
ment whether or not there is dumping.

(23)

In the light of the foregoing, it is considered that the
individual definitive anti-dumping duty for the exporter
concerned should be kept at the level of the definitive
countrywide anti-dumping duty rate established in the
original investigation, i.e. 14,2 %.

(13)

(14)

(15)

29.4.2004

EN

Official Journal of the European Union

L 127/9

(24)

(25)

(26)

investigation, however, concluded that it
The original
was appropriate to impose duties in the form of a
specific amount per tonne, since PET prices can fluctuate
in line with fluctuations in crude oil prices, thus signifi-
cantly affecting the level of the duty. The same metho-
dology should be applied in the current investigation.
Therefore,
the definitive individual anti-
dumping duty applicable to the net, free-at Community-
frontier price, before duty, for the products manufac-
tured by the exporting producer concerned should be
EUR 83,2 per tonne.

the rate of

In accordance with Article 14(1) of the basic Regulation,
no product shall be subject to both anti-dumping and
countervailing duties for the purposes of dealing with
one and the same situation arising from dumping or
from export subsidisation. As the anti-dumping duties
should be
the product
imposed on imports of
concerned, it is necessary to determine whether, and to
what extent, the subsidy and the dumping margin arise
from the same situation.

In the parallel investigation referred to in recital 4, the
subsidies found for the exporting producer concerned
are not export subsidies and are therefore considered not
to have affected the export price and the corresponding
dumping margin. Consequently,
countervailing
duties can be imposed together with the anti-dumping
duties, to the extent that, pursuant to Article 9(4) of the
basic Regulation, both duties taken together do not
exceed the injury elimination margin of 22,6 % estab-
lished for Thailand in the framework of the original
investigation. This situation does not arise in the present
case and therefore both countervailing and anti-dumping
duties should be imposed.

the

F. RETROACTIVE LEVYING OF THE ANTI-DUMPING

DUTY

(27) As

the review has

resulted in a determination of
dumping in respect of the company concerned, the anti-
dumping duty applicable to this company shall also be
levied retroactively from the date of initiation of this

review on imports which have been made subject to
registration pursuant to Article 3 of Regulation (EC) No
1292/2003.

G. DISCLOSURE AND DURATION OF THE MEASURES

(28)

(29)

(30)

The company concerned and all other interested parties
were informed of the facts and considerations on the
basis of which it was intended to impose the definitive
anti-dumping duty on its
the product
concerned into the Community.

imports of

This review does not affect the date on which Regulation
(EC) No 2604/2000 will expire pursuant to Article 11(2)
of the basic Regulation.

Regulation (EC) No 2604/2000 should therefore be
amended accordingly,

HAS ADOPTED THIS REGULATION:

Article 1

In the table of Article 1(3) of Regulation (EC) No 2604/

1.
2000 the following is added:

‘Country

Company

Definitive
duty
(EUR per
tonne)

TARIC
additional
code

Thailand

Indo Pet (Thailand) Ltd

83,2

A468’

2.
The duty hereby imposed shall also be levied retroactively
on imports of the product concerned which have been regis-
tered pursuant to Article 3 of Regulation (EC) No 1292/2003.

Unless otherwise

3.
concerning customs duties shall apply.

specified,

the provisions

in force

Article 2

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 Luxembourg, 26 April 2004.

For the Council

The President

B. COWEN