Proposal for a Council Regulation amending Regulation (EC) No 1467/2004 imposing definitive anti-dumping duties on imports of polyethylene terephtalate (‘PET’) originating, inter alia, in the People’s Republic of China
Date: 2005-12-14
Institutions: European Commission
Subjects: China, anti-dumping duty, anti-dumping legislation, originating product, plastics

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 14.12.2005 
COM(2005) 664 final 

Proposal for a 

COUNCIL REGULATION 

amending Regulation (EC) No 1467/2004 imposing definitive anti-dumping duties 
on imports of polyethylene terephtalate (‘PET’) originating, inter alia, 
 in the People’s Republic of China 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

1)  CONTEXT OF THE PROPOSAL 

•  Grounds for and objectives of the proposal 

This  proposal  concerns  the  application  of  Council  Regulation  (EC)  No  384/96  of  22 
December 1995 on protection against dumped imports from countries not members of 
the European Community, as last amended by Council Regulation (EC) No 461/2004 
of  8  March  2004  ("the  basic  Regulation")  in  the  proceeding  concerning  imports  of 
certain  Polyethylene  Terephthalate  (‘PET’)  originating  in  the  People's  Republic  of 
China. 

•  General context 

This proposal is made in the context of the implementation of the basic Regulation and 
is the result of an investigation which was carried out in line with the substantive and 
procedural requirements laid out in the basic Regulation. 

•  Existing provisions in the area of the proposal 

The  present  Regulation  proposal  is  meant  to  amend  Council  Regulation  (EC)  No 
1467/2004 imposing definitive anti-dumping duties on imports of certain Polyethylene 
Terephthalate (‘PET’) originating, inter alia, in the People’s Republic of China. 

•  Consistency with other policies and objectives of the Union 

Not applicable. 

2)  CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

•  Consultation of interested parties 

Interested  parties  concerned  by  the  proceeding  have  already  had  the  possibility  to 
defend their interests during the investigation, in line with the provisions of the basic 
Regulation. 

•  Collection and use of expertise 

There was no need for external expertise. 

•  Impact assessment 

This proposal is the result of the implementation of the basic regulation. 

The  basic  regulation  does  not  foresee  a  general  impact  assessment  but  contains  an 
exhaustive list of conditions that have to be assessed. 

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3)  LEGAL ELEMENTS OF THE PROPOSAL 

•  Summary of the proposed action 

In  April  2005,  the  Commission  announced,  by  Regulation  (EC)  No  523/2005,  the 
initiation  of  a  ‘new  exporter’  review  of  Council  Regulation  (EC)  No  1467/2004 
imports  of  certain  Polyethylene 
imposing  definitive  anti-dumping  duties  on 
Terephthalate  (‘PET’) originating, inter alia, in the People’s  Republic of  China. This 
Regulation  also  repealed  the  duty  with  regard  to  imports  from  Jiangyin  Chengsheng 
New Packing Material Co., Ltd. (the ‘applicant’), which requested the initiation of the 
review, making these imports subject to registration. 

According to the findings of the current investigation, the applicant meets the criteria 
for  market  economy  treatment  and  should  receive  an  individual  duty  rate  of  45  EUR 
per tonne. 

It is therefore proposed that the Council adopt the attached proposal for a Regulation, 
in  view  of  its  publication  in  the  Official  Journal  of  the  European  Union  by  31 
December 2005 at the latest. 

•  Legal basis 

Council  Regulation  (EC)  No  384/96  of  22  December  1995  on  protection  against 
dumped  imports  from  countries  not  members  of  the  European  Community,  as  last 
amended by Council Regulation (EC) No 461/2004 of 8 March 2004 

•  Subsidiarity principle 

The proposal falls under the exclusive competence of the Community. The subsidiarity 
principle therefore does not apply. 

•  Proportionality principle 

The proposal complies with the proportionality principle for the following reason(s). 

The form of action is described in the above-mentioned basic regulation and leaves no 
scope for national decision. 

Indication  of  how  financial  and  administrative  burden  falling  upon  the  Community, 
national governments, regional and local authorities, economic operators and citizens is 
minimized and proportionate to the objective of the proposal is not applicable. 

•  Choice of instruments 

Proposed instruments: regulation. 

Other means would not be adequate for the following reason(s). 

The above-mentioned basic regulation does not foresee alternative options. 

4)  BUDGETARY IMPLICATION 

The proposal has no implication for the Community budget. 

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Proposal for a 

COUNCIL REGULATION 

amending Regulation (EC) No 1467/2004 imposing definitive anti-dumping duties 
on imports of polyethylene terephtalate (‘PET’) originating, inter alia, 
 in the People’s Republic of China 

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 Community1 (‘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 

(1) 

The  measures  currently  in  force  on  imports  into  the  Community  imports  of 
polyethylene terephthalate (‘PET’) originating, inter alia, in the People's Republic of 
China  (‘PRC’),  are  definitive  anti-dumping  duties  imposed  by  Council  Regulation 
(EC) No 1467/20042. Pursuant to the same Regulation, anti-dumping duties were also 
imposed on imports of PET originating in the Republic of Australia. 

B. 

CURRENT INVESTIGATION 

1. 

Request for a review 

(2) 

After the imposition of definitive anti-dumping duties on imports of PET originating 
in the PRC, the Commission received a request to initiate a ‘new exporter’ review of 
Regulation  (EC)  No  1467/2004,  pursuant  to  Article  11(4)  of  the  basic  Regulation, 
from  Jiangyin  Chengsheng  New  Packing  Material  Co.,  Ltd.  (the  ‘applicant’).  The 
applicant claimed that it was not related to any of the exporting producers in the PRC 
subject  to  the  anti-dumping  measures  in  force  with  regard  to  PET.  Furthermore,  it 
claimed  that  it  had  not  exported  PET  to  the  Community  during  the  original 

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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). 
OJ L 271, 19.8.2004, p. 1. 

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investigation period (‘the original IP’, i.e. the period from 1 April 2002 to 31 March 
2003), but had started to export PET to the Community thereafter. 

2. 

Initiation of a ‘new exporter’ review 

(3) 

(4) 

The Commission examined the evidence submitted by the applicant and considered it 
sufficient to justify the initiation of a review in accordance 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 523/20053, a review of Regulation (EC) 
No 1467/2004 with regard to the applicant and commenced its investigation. 

Pursuant to the Commission Regulation initiating the review, the anti-dumping duty of 
184 EUR/t imposed by Regulation  (EC) No 1467/2004 on  imports of PET produced 
by the applicant was repealed. Simultaneously, pursuant to Article 14(5) of the basic 
Regulation, customs authorities were directed to take appropriate steps to register such 
imports. 

3. 

Product concerned 

(5) 

The  product  concerned  by the current review is  the same  as that in the investigation 
that led to the imposition of the measures in force on imports of PET originating in the 
PRC  (‘original  investigation’),  i.e.  PET  having  a  viscosity  number  of  78  ml/g  or 
higher, according to the ISO Standard 1628-5, classified under CN code 3907 60 20. 

4. 

Parties concerned 

(6) 

(7) 

The  Commission  officially  advised  the  applicant  and  the  representatives  of  the 
exporting  country  of  the  initiation  of  the  review.  Interested  parties  were  given  the 
opportunity to make their views known in writing and to be heard. 

The  Commission  also  sent  a  market  economy  treatment  (‘MET’)  claim  form  and  a 
questionnaire  to  the  applicant  and  received  replies  within  the  deadlines  set  for  that 
purpose. The Commission sought and verified all the information it deemed necessary 
for  the  determination  of  dumping,  including  the  MET  claim,  and  a  verification  visit 
was carried out at the premises of the applicant. 

5. 

Investigation period 

(8) 

The  investigation  of  dumping  covered  the  period  from  1  October  2003  to  31 
December 2004 (‘the investigation period’ or ‘IP’). 

C. 

RESULTS OF THE INVESTIGATION 

1. 

‘New exporter’ qualification 

(9) 

The investigation confirmed that the applicant had not exported the product concerned 
during  the  original  IP  and  that  it  had  begun  exporting  to  the  Community  after  this 
period. 

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OJ L 84, 2.4.2005, p. 9. 

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(10)  Furthermore, the applicant was able to demonstrate that it was not related to any of the 
exporters or producers in the PRC which are subject to the anti-dumping measures in 
force on imports of PET originating in the PRC. 

(11) 

In this context, it is confirmed that the applicant should be considered a ‘new exporter’ 
in accordance with Article 11(4) of the basic Regulation. 

2. 

Market economy treatment (‘MET’) 

(12)  Pursuant  to  Article  2(7)(b)  of  the  basic  Regulation,  in  anti-dumping  investigations 
concerning  imports  originating  in  the  PRC,  normal  value  shall  be  determined  in 
accordance with paragraphs 1 to 6 of the said Article for those producers which were 
found  to  meet  the  criteria  laid  down  in  Article  2(7)(c)  of  the  basic  Regulation,  i.e. 
where  it  is  shown  that  market  economy  conditions  prevail  in  respect  of  the 
manufacture  and  sale  of  the  like  product.  These  criteria  are  set  out  in  a  summarised 
form below: 

– 

– 

– 

– 

– 

business decisions are made in response to market signals, without significant 
State interference, and costs reflect market values; 

firms have  one  clear set of basic  accounting records which  are independently 
audited in line with international accounting standards (‘IAS’) and are applied 
for all purposes; 

no distortions carried over from the non-market economy system; 

bankruptcy and property laws guarantee stability and legal certainty; 

exchange rate conversions are carried out at market rates.  

(13)  The Commission sought all information deemed necessary and verified all information 
submitted in the MET application at the premises of the company in question. 

(14)  The investigation showed that all five criteria laid down in Article 2(7)(c) of the basic 
Regulation were met by the applicant. It was therefore considered that MET should be 
granted to the applicant. 

3. 

Dumping 

Determination of normal value 

(15)  As  far  as  the  determination  of  normal  value  is  concerned,  the  Commission  first 
established  whether  the  total  domestic  sales  of  the  product  concerned  made  by  the 
applicant  were  representative  in  comparison  with  its  total  export  sales  to  the 
Community.  In  accordance  with  Article  2(2)  of  the  basic  Regulation,  domestic  sales 
were considered representative when the total domestic sales volume was at least 5% 
of the total export sales volume to the Community. The Commission established that 
PET was sold domestically by the applicant in overall representative volumes. 

(16)  No  distinction  of  types  was  made  for  the  product  concerned.  No  additional 
examination  therefore  needed  to  be  made  whether  domestic  sales  were  sufficiently 

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representative  on  a  type-by-type  basis  for  the  purposes  of  Article  2(2)  of  the  basic 
Regulation. 

(17)  An  examination  was  also  made  as  to  whether  the  sales  of  PET  sold  domestically  in 
representative quantities could be regarded as having been made in the ordinary course 
of  trade,  by  establishing  the  proportion  of  profitable  sales  of  PET  to  independent 
customers.  Since  the  profitable  sales  volume  of  PET  represented  more  than  80  %  of 
the  total  domestic  sales  volume  of  PET,  normal  value  was  based  on  the  actual 
domestic price, calculated as a weighted average of the prices of all domestic sales of 
PET made during the IP, irrespective of whether these sales were profitable or not. 

(18)  Consequently, in accordance  with Article 2(1) of the basic  Regulation, normal value 
was based on the prices, paid or payable, on the domestic market of the PRC. 

Export price 

(19)  The  product  concerned  was  exported  directly  to  independent  customers  in  the 
Community.  Therefore,  the  export  price  was  established  in  accordance  with  Article 
2(8) of the basic Regulation, i.e. on the basis of export prices actually paid or payable. 

Comparison 

(20)  The  normal  value  and  export  prices  were  compared  on  an  ex-works  basis.  For  the 
purpose of ensuring a fair comparison between the normal value and the export price, 
due  allowance  in  the  form  of  adjustments  was  made  for  differences  affecting  price 
comparability  in  accordance  with  Article  2(10)  of  the  basic  Regulation.  Appropriate 
adjustments  were  granted  in  all  cases  where  they  were  found  to  be  reasonable, 
accurate and supported by verified evidence. 

Dumping margin 

(21)  As  provided  for  under  Article  2(11)  of  the  basic  Regulation,  the  weighted  average 
normal  value  was  compared  with  the  weighted  average  export  price  of  the  product 
concerned. 

(22)  The comparison showed the existence of dumping. This dumping margin expressed as 
a  percentage  of  the  net,  free-at-Community-frontier  price,  duty  unpaid,  for  Jiangyin 
Chengsheng New Packing Material Co., Ltd. is 5.6%. 

D. 

AMENDMENT OF THE MEASURES BEING REVIEWED 

(23) 

In  the  light  of  the  results  of  the  investigation,  it  is  considered  that  a  definitive  anti-
dumping duty should be imposed for the applicant at the level of the dumping margin 
found.  

(24)  Regarding the form of the measure, it was considered that the amended anti-dumping 
duty  should  take  the  same  form  as  the  duties  imposed  by  Regulation  (EC)  No 
1467/2004. It was established that PET prices can fluctuate in line with fluctuations in 
crude oil prices. Therefore it was considered appropriate to impose duties in the form 
of a specific amount per tonne. Subsequently, the anti-dumping duty, calculated on the 
basis  of  the  dumping  margin  expressed  as  a  percentage,  to  imports  of  PET  from 
Jiangyin Chengsheng New Packing Material Co., Ltd. is 45 EUR per tonne. 

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(25)  The dumping margin, established for the IP, of 5.6% is below the country-wide injury 
elimination  level  of  27.3%,  which  was  established  for  the  PRC  in  the  original 
investigation.  It  is  therefore  proposed  that  a  duty  at  the  level  of  45  EUR  per  tonne, 
which  is  based  on  the  dumping  margin  of  5.6%,  shall  be  imposed  and  that  Council 
Regulation (EC) No 1467/2004 be accordingly amended.  

E. 

RETROACTIVE LEVYING OF THE ANTI-DUMPING DUTY 

(26) 

In  the  light  of  the  above  findings,  the  anti-dumping  duty  applicable  to  the  applicant 
shall  be  levied  retroactively  on  imports  of  the  product  concerned  which  have  been 
made subject to registration pursuant to Article 3 of Commission Regulation (EC) No 
523/2005. 

F. 

DISCLOSURE 

(27)  The parties concerned were informed of the essential facts and considerations on the 
basis  of  which  it  was  intended  to  impose  on  imports  of  PET  from  the  applicant  an 
amended  definitive  anti-dumping  duty  and  to  levy  this  duty  retroactively  on  imports 
made subject to registration. Their comments were considered and taken into account 
where appropriate. 

(28)  This  review  does  not  affect  the  date  on  which  the  measures  imposed  by  Council 
Regulation  (EC)  No  1467/2007  will  expire  pursuant  to  Article  11(2)  of  the  basic 
Regulation, 

HAS ADOPTED THIS REGULATION: 

Article 1 

1. 

The  table  in  Article  1(2)  of  Council  Regulation  (EC)  No  1467/2004  is  hereby 
amended by adding the following: 

Country 

Company 

Rate of 
duty 

TARIC 
additional code 

Jiangyin Chengsheng New Packing 
Material Co., Ltd. 

45 
EUR/t 

A510 

The 
People’s 
Republic of 
China 

2. 

The duty hereby imposed shall also be levied retroactively on imports of the product 
concerned  which  have  been  registered  pursuant  to  Article  3  of  Commission 
Regulation (EC) No 523/2005. 

The customs authorities are hereby directed to cease the registration of imports of the 
product  concerned  originating  in  the  People’s  Republic  of  China  produced  by 
Jiangyin Chengsheng New Packing Material Co., Ltd. 

3. 

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

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

Article 2 

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

Done at Brussels,  

For the Council 
The President 

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