Notice of initiation of an anti-subsidy proceeding concerning imports of certain plastic sacks and bags originating in Malaysia and Thailand
Date: 2005-06-30
Institutions: European Commission
Subjects: Malaysia, Thailand, anti-subsidy proceeding, import, originating product, packaging product, plastics

30.6.2005

EN

Official Journal of the European Union

C 159/15

Notice of initiation of an anti-subsidy proceeding concerning imports of certain plastic sacks and
bags originating in Malaysia and Thailand

(2005/C 159/06)

The Commission has received a complaint pursuant to Article
10 of Council Regulation (EC) No 2026/97 on protection
against subsidised imports from countries not members of the
European Community (1) (‘the basic Regulation’), alleging that
imports of certain plastic sacks and bags originating in Malaysia
and Thailand (‘the countries concerned’), are being subsidized
injury to the Community
and are thereby causing material
industry.

It is alleged that the producers of the product concerned in
Thailand have benefited from a number of subsidies granted by
the Government of Thailand. These subsidies are: exemptions
or reductions on duties on imports of machinery, exemption
from corporate income tax, exemption of import duties on raw
and essential materials, provision of electricity for less than
adequate remuneration, and double deduction for income tax
of transport and utility costs.

1. Complaint

The complaint was lodged on 18 May 2005 by 30 European
producers of certain plastic sacks and bags (‘the complainant’)
on behalf of producers representing a major proportion, in this
case more than 25 %, of the total Community production of
those plastic sacks and bags.

2. Product

It is alleged that the above schemes are subsidies since they
involve a financial contribution from the Government of Thai-
land and confer a benefit to the recipients, i.e. to exporters/
producers of certain plastic bags. They are alleged to be contin-
gent upon export performance or limited to specific companies
and therefore specific and countervailable.

4. Allegation of injury

The complainant has provided evidence that imports of the
product concerned from Malaysia and Thailand have increased
overall in absolute terms and in terms of market share.

The product allegedly being subsidised is certain plastic sacks
and bags containing at least 20 % of polyethylene and of a
thickness not exceeding 100 micrometres originating in
Malaysia and Thailand (‘the product concerned’), normally
declared within CN codes ex 3923 21 00, ex 3923 29 10 and
ex 3923 29 90. These CN codes are only given for informa-
tion.

It is alleged that the volumes and the prices of the imported
product concerned have, among other consequences, had a
negative impact on the market share held, the quantities sold
and the level of prices charged by the Community industry,
resulting in substantial adverse effects on the overall perfor-
mance and the financial situation of the Community industry.

3. Allegation of subsidization

5. Procedure

It is alleged that the producers of the product concerned in
Malaysia have benefited from a number of subsidies granted by
the Government of Malaysia. These subsidies are: Pioneer
status, Import duty exemption and sales tax exemption, Export
credit
Industrial building allowance,
Double deduction for promotion of exports and Investment
Tax Allowance.

refinancing program,

Having determined, after consulting the Advisory Committee,
that the complaint has been lodged by or on behalf of the
Community industry and that there is sufficient evidence to
justify the initiation of a proceeding, the Commission hereby
initiates an investigation pursuant to Article 10 of the basic
Regulation.

It is alleged that the above schemes are subsidies since they
involve a financial contribution from the Government of
Malaysia and confer a benefit to the recipients, i.e. to exporters/
producers of certain plastic bags. They are alleged to be contin-
gent upon export performance or limited to specific companies
and therefore specific and countervailable.

(1) OJ L 288, 21.10.1997, p. 1, Regulation as last amended by Council

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

5.1. Procedure for the determination of subsidization and

injury

The investigation will determine whether the product described
in point 2 originating in Malaysia and Thailand is being subsi-
dized and whether this subsidization has caused injury.

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Official Journal of the European Union

30.6.2005

(a) Sampling

(ii) S a mp li ng for i mp or te r s

In view of the apparent large number of parties involved in
this proceeding,
the Commission may decide to apply
sampling in accordance with Article 27 of the basic Regu-
lation.

(i) Sa mp li ng f or e x p or te r s/ p r o du c e r s i n M a la y si a

a n d T h a i l a n d

In order to enable the Commission to decide whether
sampling is necessary and, if so, to select a sample, all
exporters/producers, or representatives acting on their
behalf, are hereby requested to make themselves
known by contacting the Commission and providing
the following information on their company or compa-
nies within the time limit set in point 6(b)(i) and in the
format indicated in point 7:

— name, address, e-mail address, telephone, and fax,

and/or telex numbers and contact person,

— the turnover in local currency and the volume in
metric tonnes of the product concerned sold for
export to the Community in 2004,

— the turnover in local currency and the sales volume
in metric tonnes for the product concerned on the
domestic market in 2004,

— whether the company intends to claim an indivi-
dual subsidy rate (individual subsidy rates can only
be claimed by producers),

— the precise activities of the company with regard to

the production of the product concerned,

— the names and the precise activities of all related
involved in the production and/or
the product

companies (1)
selling (export and/or domestic) of
concerned,

— any other relevant information that would assist
the Commission in the selection of the sample,

— an indication of whether the company or compa-
nies agree to their inclusion in the sample, which
implies replying to a questionnaire and accepting
an on-the-spot investigation of their response.

In order to obtain the information it deems necessary
for the selection of the sample of exporters/producers,
the Commission will, in addition, contact the authori-
ties of the exporting countries, and any known associa-
tions of exporters/producers.

(1) For guidance on the meaning of related companies, please refer to
Article 143 of Commission Regulation (EEC) No 2454/93 laying
down provisions for the implementation of Council Regulation
(EEC) No 2913/92 establishing the Community Customs Code (OJ L
253, 11.10.1993, p. 1).

In order to enable the Commission to decide whether
sampling is necessary and, if so, to select a sample, all
importers, or representatives acting on their behalf, are
hereby requested to make themselves known to the
Commission and to provide the following information
on their company or companies within the time limit
set in point 6(b)(i) and in the formats indicated in
point 7:

— name, address, e-mail address, telephone, and fax,

and/or telex numbers and contact person,

— the total turnover in euro of the company in 2004,

— the total number of employees,

— the precise activities of the company with regard to

the product concerned,

— the volume in metric tonnes and value in euro of
imports into and resales made in the Community
market in 2004 of the imported product concerned
originating in Malaysia and Thailand,

— the names and the precise activities of all related
involved in the production and/or

companies
selling of the product concerned,

— any other relevant information that would assist
the Commission in the selection of the sample,

— an indication of whether the company or compa-
nies agree to their inclusion in the sample, which
implies replying to a questionnaire and accepting
an on-the-spot investigation of their response.

In order to obtain the information it deems necessary
for the selection of
the
Commission will, in addition, contact any known asso-
ciations of importers.

the sample of

importers,

(iii) S a mp li ng for Commu ni ty p r odu c e r s

In view of the large number of Community producers
supporting the complaint, the Commission intends to
investigate injury to the Community industry by
applying sampling.

In order to enable the Commission to select a sample,
all Community producers are hereby requested to
provide the following information on their company
or companies within the time limit set in point 6(b)(i):

— name, address, e-mail address, telephone, and fax,

and/or telex numbers and contact person,

30.6.2005

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Official Journal of the European Union

C 159/17

— the total turnover in EUR of the company in 2004,

— the precise activities of the company with regard to

the production of the product concerned,

— the value in euro of sales of the product concerned

made in the Community market in 2004,

— the volume in metric tonnes of sales of the product
concerned made in the Community market
in
2004,

— the volume in metric tonnes of the production of

the product concerned in 2004,

— the names and the precise activities of all related
involved in the production and/or

companies
selling of the product concerned,

— any other relevant information that would assist
the Commission in the selection of the sample,

— an indication of whether the company or compa-
nies agree to their inclusion in the sample, which
implies replying to a questionnaire and accepting
an on-the-spot investigation of their response.

Exporters/producers in Malaysia and Thailand claiming an
individual subsidy rate, with a view to the application of
Articles 27(3) and 15(3) of
the basic Regulation, must
submit a completed questionnaire within the time limit set
in point 6(a)(ii) of
this notice. They therefore have to
request a questionnaire within the time limit set in point
6(a)(i). However, such parties should be aware that
if
sampling is applied to exporters/producers, the Commis-
sion may nonetheless decide not to calculate an individual
subsidy rate for them, if the number of exporters/producers
is so large that individual examination would be unduly
burdensome and would prevent the timely completion of
the investigation.

(c) Collection of information and holding of hearings

submit

All interested parties are hereby invited to make their views
known,
than questionnaire
replies and to provide supporting evidence. This informa-
tion and supporting evidence has to reach the Commission
within the time limit set in point 6(a)(ii).

information other

Furthermore, the Commission may hear interested parties,
provided that they make a request showing that there are
particular reasons why they should be heard. This request
must be made within the time limit set in point 6(a)(iii).

(iv) F i na l se le c ti on of th e sa mp le s

All interested parties wishing to submit any relevant
information regarding the selection of
the samples
must do so within the time limit set in point 6(b)(ii).

5.2. Procedure for assessment of Community interest

samples

The Commission intends to make the final selection of
the
consulted the parties
concerned that have expressed their willingness to be
included in the sample.

after having

Companies included in the samples must reply to a
questionnaire within the time limit set in point 6(b)(iii)
and must cooperate within the framework of the inves-
tigation.

forthcoming,

sufficient cooperation is not

If
the
Commission may base its findings, in accordance with
Articles 27(4) and 28 of the basic Regulation, on the
facts available. A finding based on facts available may
be less advantageous
to the party concerned, as
explained in point 8.

and

representative

In accordance with Article 31 of the basic Regulation and in
the event that the allegations of subsidization and injury caused
thereby are substantiated, a decision will be reached as to
whether the adoption of anti-subsidy measures would not be
against the Community interest. For this reason the Community
industry, importers, their representative associations, represen-
tative users
consumer organisations,
provided that they prove that there is an objective link between
their activity and the product concerned, may, within the
general time limits set in point 6(a)(ii), make themselves known
and provide the Commission with information. The parties
which have acted in conformity with the precedent sentence
may request a hearing setting the particular reasons why they
should be heard within the time limit set in point 6(a)(iii). It
should be noted that any information submitted pursuant to
Article 31 will only be taken into account if supported by
factual evidence at the time of submission.

(b) Questionnaires

6. Time limits

(a) General time limits

In order to obtain the information it deems necessary for
its investigation, the Commission will send questionnaires
to the sampled Community industry and to any association
of producers in the Community, to the sampled exporters/
producers in Malaysia and Thailand, to any association of
exporters/producers, to the sampled importers, to any asso-
ciation of importers named in the complaint, and to the
authorities of the exporting countries concerned.

(i) For p ar ti e s to r e qu e st a q u e sti on nai r e

All interested parties should request a questionnaire as
soon as possible, but not later than 15 days after the
publication of this notice in the Official Journal of the
European Union.

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Official Journal of the European Union

30.6.2005

(ii) F or p a r ti e s

t o ma ke th e mse lve s know n,

t o
submi t q u e sti onn a i r e r e p li e s and a ny oth e r
i nf or ma ti on

All interested parties, if their representations are to be
taken into account during the investigation, must make
themselves known by contacting the Commission,
present their views and submit questionnaire replies or
any other information within 40 days of the date of
publication of this notice in the Official Journal of the
European Union, unless otherwise specified. 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 aforementioned
period.

Companies selected in a sample must submit question-
naire replies within the time limits specified in point
6(b)(iii).

(iii) H e a r i ng s

All interested parties may also apply to be heard by
the Commission within the same 40 day time limit.

(b) Specific time limit in respect of sampling

(i) The information specified in point 5.1(a)(i), 5.1(a)(ii)
and 5.1(a)(iii) should reach the Commission within 15
days of the date of publication of this notice in the
Official Journal of the European Union, given that the
Commission intends to consult parties concerned that
have expressed their willingness to be included in the
sample on its final selection within a period of 21 days
of the publication of this notice in the Official Journal of
the European Union.

(ii) All other information relevant for the selection of the
sample as referred to in 5.1(a)(iv) must reach the
Commission within a period of 21 days of the publica-
tion of this notice in the Official Journal of the European
Union.

(iii) The questionnaire replies from sampled parties must
reach the Commission within 37 days from the date of
the notification of their inclusion in the sample.

7. Written submissions, questionnaire replies and cor-

respondence

All submissions and requests made by interested parties must
be made in writing (not in electronic format, unless otherwise
specified) and must indicate the name, address, e-mail address,
telephone and fax, and/or telex numbers of the interested party.
All written submissions, including the information requested in
this notice, 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.

8. Non-cooperation

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

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

9. Schedule of the investigation

The investigation will be concluded, according to Article 11(9)
of the basic Regulation within 13 months of the date of the
publication of this notice in the Official Journal of the European
Union. According to Article 12(1) of
the basic Regulation,
provisional measures may be imposed no later than 9 months
from the publication of this notice in the Official Journal of the
European Union.

(1) This means that

the document

is for internal use only.

is
protected pursuant to Article 4 of Regulation (EC) No 1049/2001
of the European Parliament and of the Council regarding public
access to European Parliament, Council and Commission documents
(OJ L 145, 31.5.2001, p. 43). It is a confidential document pursuant
to Article 29 of the basic Regulation and Article 12 of the WTO
Agreement on Subsidies and Countervailing Measures.

It