Notice of initiation of an expiry review of the countervailing measures applicable to imports of certain polyethylene terephthalate originating in,  inter alia , India
Date: 2005-12-01
Institutions: European Commission
Subjects: India, anti-dumping legislation, countervailing charge, export subsidy, import, originating product, plastics

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Official Journal of the European Union

1.12.2005

Notice of initiation of an expiry review of the countervailing measures applicable to imports of
certain polyethylene terephthalate originating in, inter alia, India

(2005/C 304/03)

Following the publication of a notice of impending expiry (1) of
the anti-subsidy measures in force on imports of certain poly-
ethylene terephthalate originating in, inter alia, India, (‘country
concerned’), the Commission has received a request for review
pursuant to Article 18 of Council Regulation (EC) No 2026/97
on protection against subsidised imports from countries not
the European Community (‘the basic Regu-
members of
lation’) (2), as last amended by Council Regulation (EC) No
461/2004 (3).

1. Request for review

The request was lodged on 30 August 2005 by the Polyethy-
lene Terephthalate (PET) Committee of PlasticsEurope (‘the
applicant’) on behalf of producers representing a major propor-
tion,
in this case more than 90 %, of the total Community
production of certain polyethylene terephthalate.

special economic zones/export oriented units;
the advance
licenses; the duty entitlement passbook scheme; an income tax
exemption; the export promotion capital goods scheme; export
credits; the package scheme of incentives of the Government of
Maharashtra;
the
sales
Gujarat electricity duty exemption scheme and the West Bengal
incentive scheme.

tax incentive scheme;

the Gujarat

The total subsidy is estimated to be significant.

It is alleged that the above schemes are subsidies since they
involve a financial contribution from the Government of India
or other regional governments and confer a benefit to the reci-
pients,
to exporters/producers of certain polyethylene
terephthalate. They are alleged to be contingent upon export
performance and therefore specific and countervailable or to be
otherwise specific and countervailable.

i.e.

2. Product

The product under review is polyethylene terephthalate with a
coefficient of viscosity of 78 ml/g or higher, according to DIN
(Deutsche Industrienorm) 53728 originating in India (‘the
product concerned’), currently classifiable within CN code
3907 60 20. This CN code is given only for information.

The applicant further alleges the likelihood of injurious subsidi-
sation.
In this respect the applicant presents evidence that,
should measures be allowed to lapse, the current import level
of the product concerned is likely to increase due to the exis-
tence of unused capacity and the recent investments in produc-
tion capacity in the country concerned.

3. Existing measures

The measures currently in force are a definitive countervailing
duty imposed by Council Regulation (EC) No 2603/2000 (4), as
last amended by Council Regulation (EC) No 1645/2005 (5) and
undertakings
Commission Decision No
2000/745/EC (6) as last amended by Commission Decision No
2005/697/EC (7).

accepted

by

In addition, the applicant alleges that the removal of injury is
mainly due to the existence of measures and that any recur-
rence of substantial subsidised imports from the country
concerned would likely lead to a recurrence of further injury of
the Community industry should measures be allowed to lapse.

4. Grounds for the review

The applicants have provided evidence that the expiry of the
measures would lead to a continuation or recurrence of subsidi-
sation and injury.

Having determined, after consulting the Advisory Committee,
that sufficient evidence exists to justify the initiation of an
expiry review, the Commission hereby initiates a review in
accordance with Article 18 of the basic Regulation.

5. Procedure

It is alleged that the producers of the product concerned have
benefited and will continue to benefit from a number of subsi-
dies granted by the Government of India. These alleged subsi-
dies consist of schemes of benefits to industries located in

(1) OJ C 52, 2.3.2005, p. 2.
(2) OJ L 288, 21.10.97, p.1.
(3) OJ L 77, 13.3.2004, p.12.
(4) OJ L 301, 30.11.2000, p. 1.
(5) OJ L 266, 11.10.2005, p. 1.
(6) OJ L 301, 30.11.2000, p. 88.
(7) OJ L 266, 11.10.2005, p. 62.

5.1. Procedure for the determination of likelihood of subsidi-

zation and injury

The investigation will determine whether the expiry of the
measures would be likely, or unlikely, to lead to a continuation
or recurrence of subsidization and injury.

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(a) Sampling

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

(i) Sa mpli ng for i nv e sti g a ti on of subsi di sati on i n

Indi a

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
formats indicated in point 7:

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

number and contact person,

— the turnover in local currency and the sales volume
in tonnes of the product concerned sold for export
to the Community and exports to other countries
(separately) during the period 1 October 2004 until
30 September 2005

— the turnover in local currency and the sales volume
in tonnes of the product concerned sold on the
domestic market during the period 1 October
2004 until 30 September 2005,

— whether the company intends to claim an indivi-
dual subsidy rate (individual subsidy rates can only
be claimed by producers (1)),

— the precise activities of the company with regard to
the production of the product concerned and the
production volume in tonnes of
the product
concerned, the production capacity and the invest-
ments in production capacity during the period 1
October 2004 until 30 September 2005,

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

companies (2)
selling (export and/or domestic) of
concerned,

— an indication whether the company is recognised

as an export oriented unit,

— an indication whether the company is located in a

special economic zone,

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

(1) Individual margins may be claimed pursuant to Article 27(3) of the

basic Regulation for companies not included in the sample.

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

laying down provisions

for

imply

replying

— by providing the above information, the company
agrees to its possible inclusion in the sample. If the
company is chosen to be part of the sample, this
and
will
accepting
its
response. If the company indicates that it does not
agree to its possible inclusion in the sample, it will
be deemed to not have cooperated in the investiga-
tion. The consequences of non-cooperation are set
out in point 8 below.

to a questionnaire

investigation of

an on-the-spot

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 country, and any known associa-
tions of exporters/producers.

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

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

number and contact person,

— the total turnover in EUR of the company during
the period 1 October 2004 until 30 September
2005,

— the total number of employees,

— the precise activities of the company with regard to

the product concerned,

— the volume in tonnes and value in EUR of imports
into and resales made in the Community market
during the period 1 October 2004 until 30
September
product
2005
concerned originating in India,

imported

the

of

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

companies (3)
selling of the product concerned,

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

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

laying down provisions

for

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Official Journal of the European Union

1.12.2005

imply

replying

— by providing the above information, the company
agrees to its possible inclusion in the sample. If the
company is chosen to be part of the sample, this
and
will
accepting
its
response. If the company indicates that it does not
agree to its possible inclusion in the sample, it will
be deemed to not have cooperated in the investiga-
tion. The consequences of non-cooperation are set
out in point 8 below.

to a questionnaire

investigation of

an on-the-spot

imply

replying

— by providing the above information, the company
agrees to its possible inclusion in the sample. If the
company is chosen to be part of the sample, this
and
will
accepting
its
response. If the company indicates that it does not
agree to its possible inclusion in the sample, it will
be deemed to not have cooperated in the investiga-
tion. The consequences of non-cooperation are set
out in point 8 below.

to a questionnaire

investigation of

an on-the-spot

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

the sample of

importers,

(iii) Sa mp li ng for Commu n i ty p r odu c e r s

In view of the large number of Community producers
the Commission intends to
supporting the request,
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

number and contact person,

— the total turnover in EUR of the company during
the period 1 October 2004 until 30 September
2005,

— the precise activities of the company with regard to
the production of the product concerned and the
volume in tonnes of the product concerned during
the period 1 October 2004 until 30 September
2005,

— the value in EUR of sales of the product concerned
made in the Community market during the period
1 October 2004 until 30 September 2005,

— the volume in tonnes of sales of

the product
concerned made in the Community market during
the period 1 October 2004 until 30 September
2005,

— the volume in tonnes of the production of the
product concerned during the period 1 October
2004 until 30 September 2005,

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

companies (1)
selling of the product concerned,

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

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

laying down provisions

for

(iv) F i na l se le c ti on of t h 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).

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.

(b) Questionnaires

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 India, to any association of exporters/produ-
cers, to the sampled importers, to any association of impor-
ters named in the request or which cooperated in the inves-
tigation leading to the measures subject
to the present
review and to the authorities of the exporting country
concerned.

(c) Collection of information and holding of hearings

submit

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

information other

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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).

(iii) He a r i ng s

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

5.2. Procedure for the assessment of Community interest

In accordance with Article 31 of the basic Regulation and in
the event that the continuation or recurrence of subsidization
and injury is confirmed, a determination will be made as to
whether to maintain or repeal the anti-subsidy measures would
not be against the Community interest. For this reason the
Community industry,
importers, their representative associa-
tions, representative users and representative consumer organi-
sations, 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 previous
sentence may request a hearing, setting the particular reasons
why they should be heard, within the time limit set in point
It should be noted that any information submitted
6(a)(iii).
pursuant
if
to Article 31 will only be taken into account
supported by factual evidence at the time of submission.

6. Time limits

(a) General time limits

(b) Specific time limit in respect of sampling

(i) The

the date of publication of

information specified in paragraph 5.1(a)(i),
5.1(a)(ii) and 5.1(a)(iii) should reach the Commission
within 15 days of
this
notice in the Official
the European Union,
Journal of
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 publi-
cation of this notice in the Official Journal of the Euro-
pean 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.

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

7. Written submissions, questionnaire replies and cor-

respondence

All
interested parties who did not cooperate in the
investigation leading to the measures subject to the
present review should request a questionnaire as soon
as possible, but not later than 15 days after the publi-
cation of this notice in the Official Journal of the Euro-
pean Union.

(ii) F or p a r ti e s t o ma ke th e mse lve s know n,

t o
su bmi t q u e st i on n a i r e r e p l i e s a n d a n y oth e r
i nfor 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 Commis-
sion, 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
the European Union, unless otherwise specified.
of
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 limit specified in point
6(b)(iii).

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 number of the interested party. All written
submissions, including the information requested in this notice,
questionnaire replies and correspondence provided by inter-
ested 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 INTER-
ESTED PARTIES’.

shall be

Commission address for correspondence:

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

(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

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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
Article 28 of the basic Regulation,
the result may be less
favourable to that party than if it had cooperated.

9. Schedule of the investigation

The investigation will be concluded, according to Article 22(1)
of the basic Regulation within 15 months of the date of the
publication of this notice in the Official Journal of the European
Union.