Proposal for a Council Regulation imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain prepared or preserved sweet corn in kernels originating in Thailand
Date: 2007-05-30
Institutions: European Commission
Subjects: Thailand, anti-dumping duty, anti-dumping legislation, maize, preserved product

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 30.5.2007 
COM(2007) 271 final 

Proposal for a 

COUNCIL REGULATION 

imposing a definitive anti-dumping duty and collecting definitively the provisional duty 
imposed on imports of certain prepared or preserved sweet corn in kernels originating 
in Thailand 

(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 2117/2005 of 21 December 2005 (‘the basic Regulation’). 

•  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 

Not applicable. 

•  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. 

3)  LEGAL ELEMENTS OF THE PROPOSAL 

•  Summary of the proposed action 

On 28 March 2006, the Commission initiated an anti-dumping proceeding concerning 
imports of certain prepared or preserved sweet corn in kernels originating in Thailand. 

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The investigation found dumping of the product concerned, which caused injury to the 
Community  industry.  The  investigation  also  evidenced  that  there  was  no  compelling 
Community interest aspect against the imposition of definitive anti-dumping measures. 
On this basis, provisional measures were imposed by means of Commission Regulation 
(EC)  No  1888/2006.  The  continuation  of  the  investigation  has  confirmed  the 
provisional essential findings. 

Therefore,  it  is  suggested  that  the  Council  adopts  the  attached  proposal  for  a 
Regulation in order to impose definitive measures. 

•  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 2117/2005 of 21 December 2005. 

•  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 reasons: 

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 instrument: Regulation. 

Other means would not be adequate for the following reason: 

Other  means  would  not  be  adequate  because  the  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 

imposing a definitive anti-dumping duty and collecting definitively the provisional duty 
imposed on imports of certain prepared or preserved sweet corn in kernels originating 
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 Community1 (the ‘basic 
Regulation’) and in particular Article 9 thereof, 

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

Whereas: 

(1) 

(2) 

A. 

PROVISIONAL MEASURES 

On  28  March  2006,  the  Commission  published  a  notice2  initiating  an  anti-dumping 
proceeding  on  imports  into  the  Community  of  certain  prepared  or  preserved  sweet 
corn  in  kernels  originating  in  Thailand.  On  20  December  2006,  the  Commission,  by 
Regulation (EC) No 1888/20063 (‘the provisional Regulation’) imposed a provisional 
anti-dumping duty on imports of the same product. 

B. 

SUBSEQUENT PROCEDURE 

Subsequent to the disclosure of the essential facts and considerations on  the  basis of 
which it was decided to impose provisional anti-dumping measures, several interested 
parties  made  written  submissions  making  their  views  known  on  the  provisional 
findings.  The  parties  who  so  requested  were  granted  an  opportunity  to  be  heard.  A 
meeting  pursuant  to  Article  6(6)  of  the  basic  Regulation  among  one  exporting 
producer, an Association of Thai producers, the Thai Government and the Community 
producers  took  place  on  9  February  2007  at  the  Commission  premises.  The  meeting 
was devoted to the issue of competition on the Community market for sweet corn. 

(3) 

The Commission continued to seek and verify all information it deemed necessary for 
the definitive findings.  

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OJ  L  56,  6.3.1996,  p.  1.  Regulation  as  last  amended  by  Regulation  (EC)  No  2117/2005  (OJ  L  340, 
23.12.2005, p. 17). 
OJ C 75, 28.3.2006, p. 6. 
OJ L 364, 20.12.2006, p. 68. 

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(4) 

(5) 

(6) 

All  parties  were  informed  of  the  essential  facts  and  considerations  on  the  basis  of 
which it was intended to recommend the imposition of a definitive anti-dumping duty 
on  imports  of  certain  prepared  or  preserved  sweet  corn  in  kernels  originating  in 
Thailand  and  the  definitive  collection  of  the  amounts  secured  by  way  of  the 
provisional  duty.  Parties  were  also  granted  a  period  within  which  to  make 
representations  subsequent  to  the  disclosure  of  the  essential  facts  and  considerations 
on the basis of which definitive measures are imposed. 

The  oral  and  written  comments  submitted  by  the  interested  parties  were  considered 
and, where appropriate, the findings have been modified accordingly. 

It  is  recalled  that  the  investigation  of  dumping  and  injury  covered  the  period  from 
1 January 2005 to 31 December 2005 (‘investigation period’ or ‘IP’). With respect to 
the trends relevant for the injury assessment, the Commission analysed data covering 
the  period  from  1  January  2002  to  31  December  2005  (‘period  considered’).  The 
period used for the findings on undercutting, underselling and injury elimination is the 
aforementioned IP. 

C. 

PRODUCT CONCERNED AND LIKE PRODUCT 

(7) 

In the absence of any comments concerning the product concerned and like product, 
recitals (13) to (15) of the provisional Regulation are hereby confirmed. 

D. 

DUMPING 

1. 

Sampling and individual examination 

(8) 

(9) 

A number of exporters and an association  of Thai producers  raised  objections to the 
sampling  and  individual  examination assessment  described in recitals (16) to (20) of 
the  provisional  Regulation.  In  particular,  it  was  claimed  that  the  sample  was  not 
representative since the Commission disregarded other factors such as the size of the 
companies and their geographical location. Furthermore, it was claimed that it would 
not  have  been  unduly  burdensome  to  investigate  more  companies  than  the  four 
sampled. 

As  explained  in  recitals  (16)  to  (18)  of  the  provisional  Regulation,  the  Commission 
considered that in order to reach the highest possible representativeness of the sample 
taking into account the time limits of the investigation, it was appropriate to include 
only four companies in the sample since (i) this allowed coverage of a large volume of 
exports  and  (ii)  it  was  feasible  to  investigate  these  four  companies  within  the  time 
available.  Article  17  of  the  basic  Regulation  does  not  specify  any  threshold  beyond 
which the number of exporters would be considered so large as to warrant sampling, 
neither does it provide a precise indication on the appropriate number of parties to be 
included  in  the  sample.  As  for  the  latter,  the  Commission  itself  has  to  judge  what  is 
feasible  to  investigate  within  the  given  time  limit  while  ensuring  that  the  sample 
should cover as large a part as possible of the exports in question. In this respect, the 
sample selected covered 52 % of the total Thai exports during the investigation period, 
which indeed is considered as highly representative on a volume basis. 

(10) 

In  accordance  with  Article  17(1)  of  the  basic  Regulation,  the  criteria  applied  for  the 
selection of the sample was the largest representative volume of exports from Thailand 

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into the Community that could reasonably be investigated within the time available. In 
view of the high representativity of the selected sample in terms of volume, it was not 
considered  necessary  to  examine  other  factors  such  as  the  size  of  the  companies  or 
their geographical location.  

(11)  As already mentioned at recital (20) of the provisional Regulation, to investigate more 
companies would have rendered the investigation unduly burdensome and would have 
prevented completion of the investigation in good time.  

(12)  The claims raised  by  some parties concerning recitals (16) to (20) of the provisional 

Regulation are therefore rejected and those recitals are hereby confirmed.  

2.  Normal value 

(13)  One exporting producer claimed that a number of mathematical errors had been made 
in its normal value calculation. These claims were cross-checked and it was found that 
no errors had been made. 

(14) 

In  the  absence  of  any  other  comments  in  this  respect,  recitals  (21)  to  (32)  of  the 
provisional Regulation are hereby confirmed. 

3. 

Export Price 

(15)  Following the provisional disclosure, one exporting producer contested the findings in 
recital  (34)  of  the  provisional  Regulation.  This  party  claimed  that  all  export  sales  of 
the  company,  including  its  sales  of  purchased  product  manufactured  by  other 
independent producers, should have been taken into account. This party claimed that 
purchased finished products should be regarded as originating from its own production 
as it was alleged that they were manufactured in the framework of a tolling system. 

(16) 

(17) 

In this context, it is to be noted that only products produced by the exporting producer 
in  question  can  be  considered  when  determining  individual  dumping  margins.  If  an 
exporting producer is partly purchasing product for further resale to the Community it 
is,  in  fact,  in  a  position  similar  to  that  of  an  agent  or  trader  in  respect  of  those 
purchases  and  such  resales  cannot  be  considered  when  establishing  its  individual 
dumping margin. 

In  the  investigation  it  was  established  that  the  exporting  producer  in  question  was 
actually buying from other producers part of the goods sold to the Community. It was 
further  found  that  this  exporter  always  paid  for  finished  products  and  that  such 
transactions were recorded in its accounting system as purchases of finished goods. No 
contractual or other evidence (e.g. so called 'tolling' agreement) was  shown to prove 
that  the  goods  were  from  the  outset  owned  by  the  exporting  producer  and  that  the 
activity of the other companies was limited to a simple transformation of the products 
in question.  

(18)  Following  definitive  disclosure,  the  exporting  producer  in  question  reiterated  its 
claims,  underlining  that  it  should  be  considered  as  a  co-producer  of  the  product 
purchased  from  other  producers.  However,  given  that  the  ownership  of  the  goods 
produced  by  other  parties  was  transferred  to  the  exporting  producer  concerned  only 
after completion of the manufacturing process, as evidenced by the purchase invoices, 

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it is confirmed that this exporting producer cannot be considered as the producer, or 
co-producer, of the product purchased for resale. 

(19) 

In view of the above, the claim of the exporting producer is rejected and recitals (33) 
and (34) of the provisional Regulation are hereby confirmed. 

(20)  An association of importers claimed that an adjustment pursuant to Article 2(10)(k) of 
the  basic  Regulation  should  have  been  made  in  order  to  reflect  the  fact  that  heavy 
flooding  in  Thailand  had  caused  export  prices  of  the  product  concerned  to  be 
comparatively  low  relative  to  increased  cost  of  raw  material  sweet  corn  after  the 
flooding. In this respect, it should be noted that the claim was not made by any of the 
exporting  producers  themselves,  nor  quantified.  Moreover,  flooding  is  a  relatively 
common occurrence in Thailand and cannot be considered as an unforeseeable event 
when  negotiating  contracts  and  in  particular  export  prices.  Finally,  the  analysis 
showed  that  the  possible  effect,  if  any,  of  the  flooding  on  the  price  of  raw  material 
sweet corn would have been limited only to the last quarter of the IP when, in fact, the 
vast majority of raw material purchases by exporting producers took place before that 
period. Therefore, the claim for adjustment is rejected. 

4.  Comparison 

(21)  Further to provisional disclosure, a number of exporting producers claimed that certain 
allowances  on  domestic  sales  (mainly  relating  to  handling,  loading  and  ancillary 
expenses  and  credit  costs)  should  be  granted  in  the  dumping  calculations.  These 
claims  were  examined  and  for  one  company  it  was  indeed  found  that  an  additional 
allowance  should  be  granted.  After  this  adjustment,  the  dumping  margin  for  this 
company decreased from 4,3 % to 3,1 %. 

(22)  Since data from the company mentioned at recital (21) above was used in constructing 
the  normal  value  of  another  company,  as  explained  in  recitals  (29)  and  (31)  of  the 
provisional Regulation, the dumping margin of the latter company also decreased from 
11,2 % to 11,1 % as a result of the allowance granted. 

(23) 

In  the  absence  of  any  other  comments  in  this  respect,  and  apart  from  the  above 
changes, recitals (35) and (36) of the provisional Regulation are hereby confirmed. 

5.  Dumping margin 

(24) 

In  the  light  of  the  above  adjustment,  the  amount  of  dumping  finally  determined, 
expressed  as  a  percentage  of  the  CIF  net  free-at-Community-frontier  price,  before 
duty, is as follows: 

Company 

Dumping margin 

Karn Corn 

Malee Sampran 

River Kwai 

Sun Sweet 

3,1 % 

17,5 % 

15,0 % 

11,1 % 

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(25)  For  the  cooperating  companies  not  selected  in  the  sample,  the  dumping  margin  was 
established  on  the  basis  of  the  weighted  average  dumping  margin  of  the  companies 
selected in the sample, pursuant to Article 9(6) of the basic Regulation. This weighted 
average  dumping  margin,  expressed  as  a  percentage  of  the  CIF  Community  frontier 
price, duty unpaid, is 12,9 %. 

(26) 

In the absence of any comments, recital (40) of the provisional Regulation is hereby 
confirmed. 

E. 

INJURY 

(27)  One  interested  party  submitted  that  the  approach  followed  by  the  Commission  and 
described  under  recitals  (50)  and  (51)  of  the  provisional  Regulation  with  respect  to 
different sales channels is inconsistent with the basic Regulation and the WTO Anti-
Dumping  Agreement4,  as  it  would,  allegedly,  "be  intended  to  artificially  reflect  a 
higher  injury  and  cannot  be  considered  as  properly  based  nor  as  objective  and 
unbiased".  In  support  of  its  plea,  the  claimant  made  reference  to  the  Report  of  the 
WTO  Appellate  Body  of  24.7.20015  ('AB')  where  it  is  held  that  "the  investigating 
authorities are not entitled to conduct their investigation in such a way that it becomes 
more  likely  that,  as  a  result  of  the  fact-finding  or  evaluation  process,  they  will 
determine that the domestic industry is injured" (paragraph 196 of the AB). 

(28)  Firstly, the existence of the two different sales channels described by the Commission 
under  recitals  (50)  and  (51)  of  the  provisional  Regulation,  together  with  its  ensuing 
implications in terms of selling costs and sales prices, is not questioned by any party to 
this  proceeding,  and  not  even  by  the  claimant.  Secondly,  the  fact,  also  established 
under recital (51) of the provisional Regulation, that all imports from the co-operating 
Thai exporters pertain to the retailer's brand channel is not contested either. Rather, it 
is acknowledged by the claimant: "It should be reminded that Thai sales to retailers in 
Europe are made under the retailers' private label". 

(29)  Furthermore, it is also to be noted that the AB stated in paragraph 204 that "[…] it may 
be  highly  pertinent  for  investigating  authorities  to  examine  a  domestic  industry  by 
part,  sector  or  segment."  It  was  therefore  adequate  to  distinguish  the  two  separate 
sales channels, for certain injury indicators as appropriate, for the purpose of ensuring 
a  fair  evaluation  of  the  injury  felt  by  the  Community  industry,  and  of  establishing 
whether  the  dumped  imports  from  Thailand  had  had  a  direct  bearing  on  the  injury 
suffered  by  the  Community  industry.  The  injury  determination  has  systematically 
covered  both  sales  channels taken  together,  and  in  addition,  has  analysed  separately, 
when appropriate, the sales under the retailer's brand.  

(30)  However,  the  AB  in  paragraph  204  went  on  to  say  that  "[…]  where  investigating 
authorities undertake an examination of one part of a domestic industry, they should, 
in principle, examine, in like manner, all of the other parts that make up the industry, 
as  well  as  examine  the  industry  as  a  whole."  The  Commission  services  therefore 
complemented  below  their  injury  analysis  with  regard  to  the  three  injury  indicators 
which  had  been  analysed  separately  under  the  retailer's  brand  channel  in  the 

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Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994. 
WT/DS184/AB/R,  23.8.2001,  United  States  –  Anti-Dumping  Measures  on  Certain  Hot-Rolled  Steel 
Products from Japan. 

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provisional Regulation. These three indicators are the sales volume (recital (56) of the 
provisional Regulation), the sales price (recital (63) of the provisional Regulation) and 
the profitability (recital (66) of the provisional Regulation). A specific injury analysis 
concerning the producer's own brand channel separately was therefore carried out for 
these three injury indicators. 

(31)  As set out under recital (51) of the provisional Regulation, the Community industry's 
sales  under  the  retailer's  brand  accounted  for  around  63 %  of  the  total  Community 
industry's sales (own and retailer's brand) during the IP. Consequently, sales under the 
own brand channel accounted for around 37 % of the total. 

(32)  The  sales  volume  by  the  Community  industry  of  own  brand  products  on  the 
Community market first declined by 1 % in 2003, increased by 6 percentage points in 
2004, and declined by 6 percentage points in the IP. During the IP, the volume of own 
brand  sales  stood  practically  at  the  same  level  as  in  2002, i.e.  slightly  above  68  000 
tonnes. 

(33)  Unit  prices  for  the  Community  industry's  sales  of  own  brand  products  to  unrelated 
customers remained practically flat throughout the period considered. From a level of 
1 380 EUR/tonne  in 2002,  they  increased by 2 % in 2003, declined by 2 percentage 
points in 2004, before declining marginally by 1 percentage point in the IP, when they 
reached a level of 1 361 EUR/tonne. 

(34)  During  the  period  considered,  the  profitability  of  the  Community  industry's  sales  of 
own  brand  products,  expressed  as  a  percentage  of  net  sales,  declined  gradually  from 
almost 30 % in 2002 to 29 % in 2003, to around 27 % in 2004 and finally to around 
24 % in the IP. 

EC Sales volume (own brand) to unrelated customers (tonne)
Index (2002=100)
Unit price EC market (own brand) (EUR/tonne)
Index (2002=100)
Profitability of EC sales to unrelated (own brand) (% of net sales)
Index (2002=100)
Source: Investigation

2002
68 778
100
1 380
100
29,7%
100

2003
68 002
99
1 405
102
29,0%
98

2004
72 387
105
1 386
100
27,4%
92

IP
68 193
99
1 361
99
23,6%
79

(35) 

It is therefore noted that sales of own brand products remained relatively flat both in 
terms  of  quantities  sold  and  of  prices  during  the  period  considered.  Conversely, 
profitability  of  these  sales  eroded  gradually  over  the  same  period.  This  picture 
contrasts  with  the  clear  injury  picture  established  with  respect  to  all  sales  taken 
together,  and  with  that  established  with  respect  to  retailer's  brand  sales  in  the 
provisional Regulation. It is clear, however, that the impact of imports from Thailand 
is felt most where their imports are concentrated, i.e. retailer's branded products. 

(36)  Complemented  as  above,  the  examination  carried  out  by  the  Commission  services  is 
consistent  with  the  basic  Regulation  and  satisfies  the  requirement  of  objectivity  laid 
down in Article 3.1 of the WTO Anti-Dumping Agreement as all the injury indicators 
listed  under  Article  3.4  of  the  WTO  Anti-Dumping  Agreement  have  been  examined 
with and without distinction of any sales channels, where it was deemed appropriate in 
respect of the specificities of the case at hand. The above claim is therefore rejected. 

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(37) 

In the absence of other comments in this respect, recitals (41) to (76) of the provisional 
Regulation are hereby confirmed. 

F. 

CAUSATION 

1.  Restrictive trade practices 

(38)  Several  interested  parties  claimed  that  the  Community  industry  had  engaged  in 
restrictive  trade  practices,  allegedly  characterised,  notably,  by  the  fixing  of  prices  in 
the Community market for sweet corn. As supportive elements, one of these interested 
parties  indicated  that:  (i)  it  had  expressly  drawn  the  attention  of  the  Commission  to 
this issue in its submission dated 21 June 2006; (ii) one European retailer had raised a 
similar  concern  in  a  submission  dated  17  May  2006;  and  finally,  (iii)  this  party 
submitted  on  1  December  2006  two  e-mails  from  the  Chairman  of  the  complainant 
Association mentioned under recital (1) of the provisional Regulation. In one of these 
e-mails, dated 13 April 2005, the Chairman of the complainant Association allegedly 
informs the CEO of a Thai exporting company that the western European processors 
had agreed on prices for three presentations of the like product. 

(39)  The  above  interested  parties  therefore  requested  the  Commission  to  terminate 
immediately  the  present  proceeding,  on  the  grounds  of  an  absence  of  causation 
between dumped imports and the injurious situation of the Community industry, as the 
level  of  prices  practised  by  the  Community  industry  would  be  unreliable  and 
artificially  inflated  by  the  alleged  anti-competitive  behaviour  of  the  Community 
industry.  One  party  made  explicit  reference  to  both  Article  3(7)  of  the  basic 
Regulation and to the Mukand case6, to request the Commission to assess the potential 
impact on the injurious situation of the Community industry stemming from the above 
alleged anti-competitive behaviour, prior to any conclusion on causation. 

(40)  As  regards  items  (i)  and  (ii)  in  recital  (38),  it  is  noted  that  the  two  submissions 
consisted  merely  in  a  few  unsubstantiated  allegations.  In  the  submission  referred  to 
under  (i),  the  claimant  had  itself  indicated  that  "further  information  and  evidence, 
regarding these abuses, which constitute flagrant violations of EC Competition rules, 
will  be  provided  in  due  course."  The  party  concerned  subsequently  sent  the  e-mails 
referred to in recital (38) above. 

(41)  Upon  receipt  of  those  e-mails,  the  Commission  services  in  charge  of  anti-dumping 
matters  immediately  invited  the  claimant  to  forward  the  same  material  to  the 
Commission  services  in  charge  of  competition  matters.  Further,  the  Commission 
services  in  charge  of  anti-dumping  matters  examined  closely  the  prices  practiced  by 
the  various  Community  producers  given  the  existence  of  these  e-mails,  and,  in 
particular, as the Chairman of the complainant Association acknowledged that he was 
the author of the messages. 

(42)  The Chairman, strongly denied that the Community industry had, in fact, ever reached 
an agreement nor applied any 'reference' prices as suggested in the e-mail. Since, in the 
framework of the present anti-dumping proceeding, the Commission services dispose 
of detailed information on prices by model on a transaction-by-transaction basis, from 

6 

Case T-58/99 Mukand and others v. Council [2001] ECR II-2521. 

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all  the  co-operating  Community  producers,  it  was  verified  whether  any  price 
alignment could, in fact, be detected. 

(43)  No  evidence  of  an  effective  price  alignment  amongst  co-operating  Community 
producers was found in this anti-dumping investigation. Furthermore, actual prices, in 
their vast majority, stood well below the 'reference' prices mentioned in the above e-
mail dated 13 April 2005. 

(44)  Therefore, the Community institutions did not find in this anti-dumping investigation 
any evidence that the fact that prices of dumped imports from the country concerned 
undercut those of the Community industry was mainly due to an artificial price level 
stemming from anti-competitive behaviour. 

(45) 

It is also observed that the Commission has not issued any final decision establishing 
that the Community industry had practised a cartel. 

(46)  As a consequence of all the above elements, the Commission considers that the current 
anti-dumping investigation has not found any evidence that the Community industry's 
prices and injury indicators have been affected by any anti-competitive behaviour or 
trade restrictive practices. This claim is therefore rejected. 

2. 

Impact of weather conditions 

(47)  Several interested parties claimed that the impact stemming from weather conditions 
should be addressed in the causation examination. More precisely, these parties made 
reference to: (i) the heat-wave of  the summer  2003;  and (ii)  the  flooding  suffered  in 
Hungary during the period May-August 2005. 

(48) 

(49) 

(50) 

(51) 

It was carefully examined if the heat-wave of 2003 in Europe (claim (i) above) and the 
2005 flooding in Hungary (claim (ii) above) could have had an impact on the negative 
situation of the Community industry.  

It was found that the 2003 heat-wave and the 2005 flooding had virtually no impact on 
the harvested quantity of sweet corn on a global, Community industry, level. Indeed, 
data  obtained  from  the  Community  producers  in  the  framework  of  the  investigation 
showed  very  stable  figures  for  the  yields  (in  tonnes  of  sweet  corn  harvested  per 
hectare) throughout the period considered. It is further reminded that the Commission 
had found, as described under recitals (86) and (87) of the provisional Regulation, that 
the unit production cost of the Community industry had risen by a mere 5 % over the 
period  2002  to  the  IP,  mainly  on  account  of  the  rising  steel  price  (the  can  being  the 
most important cost element). On the basis of these elements, claims (i) and (ii) above 
are rejected. 

It is therefore considered that weather conditions cannot have  broken the causal  link 
between the dumped imports and the injury suffered by the Community industry. 

In the absence of any other comments with respect to causation, recitals (77) to (99) of 
the provisional Regulation are hereby confirmed. 

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G. 

COMMUNITY INTEREST 

(52) 

In  the  absence  of  new  and  substantiated  arguments  with  respect  to  Community 
interest, recitals (100) to (118) of the provisional Regulation are hereby confirmed. 

H. 

DEFINITIVE MEASURES 

(53)  Several interested parties claimed that: (i) the Commission should clarify further how 
it had computed the profit that could be achieved in the absence of dumped imports of 
14  %  as  mentioned  in  recital  (121)  of  the  provisional  Regulation;  and  (ii)  the  afore-
mentioned profit of 14 % was too high. With regard to the latter claim, reference was 
made  to  recent  safeguard  and  anti-dumping  proceedings  concerning  similarly 
processed  agricultural  products  such  as  preserved  citrus  fruits7  and  frozen 
strawberries8, where profit margins of respectively 6,8 % and 6,5 % had been used. In 
this context, another interested party claimed (iii) that the profit of 14 % was too low, 
and should rather be set at 17 % to reflect the profitability achieved in 2002 on sales of 
retailer's brand product. 

(54)  With respect to claims (i) and (iii) above, recital (121) of the provisional Regulation 
explains that the profit of 21,4 % achieved in 2002 on sales of both own and retailer's 
brand  products  had  been  adjusted  to  14  %  in  order  to  reflect  the  difference  in  the 
labelling mix of the Community industry compared to that of imports from Thailand. 
The  Commission  observed  that,  as  indicated  in  recital  (66)  of  the  provisional 
Regulation, the profitability of sales under the retailer's brand channel was of 17,0 % 
and 11,1 % in 2002 and 2003 respectively, i.e. when the volume of dumped imports 
was the lowest. The Commission considered it reasonable to take the average of these 
two profit rates, which amounts to 14 %. 

(55)  With  respect  to  claim  (ii)  above,  it  is  considered  that  the  profit  in  the  absence  of 
dumped  imports  must,  as  much  as  possible,  reflect  the  actual  specificities  of  the 
Community industry at stake. Only in the absence of such information can data from 
other industries which belong to the same broader sector be relevant. This approach, 
which  the  Commission  applies  consistently,  has  been  upheld  by  the  Court  of  First 
Instance in the EFMA case9. 

(56)  Claims (i) (ii) and (iii) are therefore rejected and the finding that a profit of 14 % could 

be achieved in the absence of dumped imports is confirmed. 

(57) 

In  view  of  the  conclusions  reached  with  regard  to  dumping,  injury,  causation  and 
Community  interest  and  in  accordance  with  Article  9(4)  of  the  basic  Regulation,  a 
definitive  anti-dumping  duty  should  be  imposed  at  the  level  of  the  dumping  margin 
found, but should not be higher than the injury margin presented in recital (123) of the 
provisional Regulation and confirmed in the present Regulation. Given the high level 
of cooperation, the duty for the remaining companies, which did not cooperate in the 
investigation,  is  set  at  the  level  of  the  highest  duty  to  be  imposed  on  the  companies 

7 
8 
9 

Regulation (EC) No 658/2004, OJ L 104, 8.4.2004, p. 67, (see recital (115)). 
Regulation (EC) No 1551/2006, OJ L 287, 18.10.2006, p. 3, (see recital (144)). 
Case T-210/95 EFMA v Council, [1999] ECR II-3291 (paragraph 54 et seq.). 

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cooperating  in  the  investigation.  Therefore,  the  residual  duty  is  set  at  the  rate  of 
12,9 %. 

(58)  The definitive duties will therefore be as follows: 

Company 

Karn Corn 

Malee Sampran 

River Kwai 

Sun Sweet 

Injury 
margin 

31,3 % 

Dumping 
margin 

Anti-dumping 
duty 

3,1 % 

3,1 % 

12,8 % 

17,5 % 

12,8 % 

12,8 % 

15,0 % 

12,8 % 

18,6 % 

11,1 % 

11,1 % 

Co-operating exporters not sampled 

17,7 % 

12,9 % 

12,9 % 

All other companies 

31,3 % 

17,5 % 

12,9 % 

I. 

UNDERTAKINGS 

(59)  Subsequent  to  the  imposition  of  the  provisional  measures  a  number  of  cooperating 
exporting  producers  expressed  an  interest  to  offer  price  undertakings.  However  after 
the definitive disclosure (save for the two companies mentioned in recital (60)), they 
failed to submit undertaking offers within the time limit foreseen in Article 8(2) of the 
basic Regulation.  

(60)  A  cooperating  exporting  producer  failed  to  submit  a  sufficiently  substantiated 
undertaking  offer  within  the  deadlines  set  in  Article  8(2)  of  the  basic  Regulation. 
Consequently  no  undertaking  offer  could  be  accepted  by  the  Commission  from  this 
exporting producer. Nevertheless, the Council, in view of the complexity of the issue 
for the economic operator in question and for other cooperating exporting producers in 
a similar situation (fragmented industry, exporting producers located in a developing 
country and often operating both as traders and exporting producers which makes the 
formulation of an acceptable undertaking offer more complex) as well as the high level 
of  cooperation  during  the  investigation,  considers  that  these  exporting  producers 
should  exceptionally  be  allowed  to  complete  their  undertaking  offers  beyond  the 
above  mentioned  deadline,  but  within  10  calendar  days  from  entry  into  force  of  this 
regulation.  The  Commission  is  allowed  to  propose  an  amendment  to  this  regulation 
accordingly. 

(61)  Subsequent  to  the  definitive  disclosure  two  cooperating  exporting  producers  offered 
acceptable price undertakings combined with a quantitative ceiling in accordance with 
Articles 8(1)  and 8(2) of the basic Regulation. They have offered to sell the product 
concerned within the quantitative ceiling at or above price levels which eliminate the 
injurious effects of dumping. Imports beyond the quantitative ceiling will be subject to 
anti-dumping  duties.  The  companies  will  also  provide  the  Commission  with  regular 
and detailed information concerning their exports to the Community, meaning that the 
undertaking can be monitored effectively by the Commission. Furthermore, the sales 

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structure  of  these  companies  is  such  that  the  Commission  considers  that  the  risk  of 
circumventing the agreed undertaking is limited. 

(62)  The Commission by Decision [INSERT]10 accepted the above undertaking offers. The 
Decision sets out in more detail the reasons for accepting these undertakings.  

(63)  To further enable the Commission and the customs authorities to effectively monitor 
the compliance of the companies with the undertakings, when the request for release 
for free circulation is presented to the relevant customs authority, exemption from the 
anti-dumping  duty  is  to  be  conditional  on  (i)  the  presentation  of  an  undertaking 
invoice, which is a commercial invoice containing at least the elements listed and the 
declaration stipulated in Annex II; (ii) the fact that imported goods are manufactured, 
shipped and invoiced directly by the said companies to the first independent customer 
in the Community; and (iii) the fact that the goods declared and presented to customs 
correspond  precisely  to  the  description  on  the  undertaking  invoice.  Where  the  above 
conditions are not met the appropriate anti-dumping duty shall be incurred at the time 
of acceptance of the declaration for release into free circulation. 

(64)  Whenever  the  Commission  withdraws,  pursuant  to  Article  8(9)  of  the  basic 
Regulation,  its  acceptance  of  an  undertaking  following  a  breach  by  referring  to 
particular  transactions  and  declares  the  relevant  undertaking  invoices  as  invalid,  a 
customs debt shall be incurred at the time of acceptance of the declaration for release 
into free circulation of these transactions. 

(65) 

Importers should be aware that a customs debt may be incurred, as a normal trade risk, 
at  the  time  of  acceptance  of  the  declaration  for  release  into  free  circulation  as 
described in recitals (62) and (63) even if an undertaking offered by the manufacturer 
from  whom  they  were  buying,  directly  or  indirectly,  had  been  accepted  by  the 
Commission. 

(66)  Pursuant  to  Article  14(7)  of  the  basic  Regulation,  customs  authorities  should  inform 
the  Commission  immediately  whenever  indications  of  a  violation  of  the  undertaking 
are found. 

(67)  For the reasons stated above the undertakings offered by the Thai exporting producers 
are therefore considered acceptable by the Commission and the companies concerned 
have been informed of the essential facts, considerations and obligations upon which 
acceptance is based.  

(68) 

In the event of a breach or withdrawal of the undertakings, or in case of withdrawal of 
acceptance of undertaking by the Commission, the anti-dumping duty which has been 
imposed  by  the  Council,  in  accordance  of  Article  9(4)  shall  automatically  apply  by 
means of Article 8(9) of the basic Regulation. 

10 

OJ L [INSERT] 

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J. 

DEFINITIVE COLLECTION OF THE PROVISIONAL DUTY 

(69) 

In view of the magnitude of the dumping margins found for the exporting producers in 
Thailand  and  given  the  level  of  the  injury  caused  to  the  Community  industry,  it  is 
considered  necessary  that  the  amounts  secured  by  way  of  provisional  anti-dumping 
duty  imposed  by  the  provisional  Regulation  should  be  definitively  collected  to  the 
extent of the amount of definitive duties imposed. 

(70)  The  individual  company  anti-dumping  duty  rates  specified  in  this  Regulation  were 
established  on  the  basis  of  the  findings  of  the  present  investigation.  Therefore,  they 
reflect  the  situation  found  during  that  investigation  with  respect  to  these  companies. 
These  duty  rates  (as  opposed  to  the  country-wide  duty  applicable  to  ‘all  other 
companies’)  are  thus exclusively applicable to imports of products originating in the 
country  concerned  and  produced  by  the  companies  and  thus  by  the  specific  legal 
entities mentioned. Imported products produced by any other company not specifically 
mentioned in the operative part of this Regulation with its name and address, including 
entities  related  to  those  specifically  mentioned,  cannot  benefit  from  these  rates  and 
shall be subject to the duty rate applicable to ‘all other companies’. 

(71)  Any claim requesting the application of these individual company anti-dumping duty 
rates (e.g. following a change in the name of the entity or following the setting up of 
new  production  or  sales  entities)  should  be  addressed  to  the  Commission  forthwith 
with all relevant information, in particular any modification in the company's activities 
linked  to  production,  domestic  sales  and  export  sales  associated  with  e.g.  that  name 
change  or  that  change  in  the  production  and  sales  entities.  If  appropriate,  the 
Regulation will accordingly be amended by updating the list of companies benefiting 
from individual duties, 

HAS ADOPTED THIS REGULATION: 

Article 1 

1. 
A definitive anti-dumping duty is hereby imposed on imports of sweet corn (Zea mays 
var. saccharata) in kernels, prepared or preserved by vinegar or acetic acid, not frozen, falling 
within CN code ex 2001 90 30 (TARIC code 2001 90 30 10) and sweet corn (Zea mays var. 
saccharata)  in  kernels  prepared  or  preserved  otherwise  than  by  vinegar  or  acetic  acid,  not 
frozen, other than products of heading 2006, falling within CN code ex 2005 80 00 (TARIC 
code 2005 80 00 10), originating in Thailand.  

2. 
The rate of the definitive anti-dumping duty applicable to the net, free-at-Community-
frontier  price,  before  duty,  of  the  products  described  in  paragraph  1  and  produced  by  the 
companies below shall be as follows: 

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Company 

Karn  Corn  Co.,  Ltd.,  68  Moo  7  Tambol  Saentor,  Thamaka, 
Kanchanaburi 71130, Thailand 

Anti-
dumping 
duty (%) 

TARIC 
additional 
code 

3,1 

A789 

Malee  Sampran  Public  Co.,  Ltd.,  Abico  Bldg.  401/1 
Phaholyothin Rd., Lumlookka, Pathumthani 12130, Thailand 

12,8 

A790 

River  Kwai  International  Food  Industry  Co.,  Ltd.,  52  Thaniya 
Plaza,  21st.  Floor,  Silom  Rd.,  Bangrak,  Bangkok  10500, 
Thailand 

12,8 

A791 

Sun Sweet Co., Ltd., 9 M. 1, Sanpatong, Chiangmai, Thailand 
50120 

11,1 

A792 

Manufacturers listed in Annex I 

All other companies 

12,9 

12,9 

A793 

A999 

Notwithstanding  the  first  subparagraph,  the  definitive  anti-dumping  duty  shall  not 

3. 
apply to imports released for free circulation in accordance with Article 2. 

4. 
apply. 

1. 

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

Article 2 

Imports  declared  for  release  into  free  circulation  which  are  invoiced  by  companies 
from  which  undertakings  are  accepted  by  the  Commission  and  whose  names  are 
listed  in  the  Commission  Decision  [2007/[INSERT]/EC],  as  from  time  to  time 
amended,  shall  be  exempt  from  the  anti-dumping  duty  imposed  by  Article  1,  on 
condition that: 

– 

– 

– 

they are manufactured, shipped and invoiced directly by the said companies to 
the first independent customer in the Community; and 

such  imports  are  accompanied  by  an  undertaking  invoice  which  is  a 
commercial  invoice  containing  at  least  the  elements  and  the  declaration 
stipulated in Annex II of this Regulation; and 

the  goods  declared  and  presented  to  customs  correspond  precisely  to  the 
description on the undertaking invoice. 

2. 

A  customs  debt  shall  be  incurred  at  the  time  of  acceptance  of  the  declaration  for 
release into free circulation: 
– 

whenever it is established, in respect of imports described in paragraph 1, that 
one or more of the conditions listed in that paragraph are not fulfilled; or 

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– 

when the Commission withdraws its acceptance of the undertaking pursuant to 
Article 8(9) of the basic Regulation in a Regulation or Decision which refers to 
particular  transactions  and  declares  the  relevant  undertaking  invoices  as 
invalid. 

Article 3 

The  amounts  secured  by  way  of  provisional  anti-dumping  duties  pursuant  to  Commission 
Regulation  (EC)  No  1888/2006  on  imports  of  sweet  corn  (Zea mays  var.  saccharata)  in 
kernels, prepared or preserved by vinegar or acetic acid, not frozen, falling within CN code ex 
2001  90  30  (TARIC  code  2001  90  30  10)  and  sweet  corn  (Zea  mays  var.  saccharata)  in 
kernels prepared or preserved otherwise than by vinegar or acetic acid, not frozen, other than 
products  of  heading  2006,  falling  within  CN  code  ex 2005 80  00  (TARIC  code  2005  80  00 
10), originating in Thailand, shall be definitively collected. The amounts secured in excess of 
the definitive duties as set out in Article 1(2) shall be released. 

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

Article 4 

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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ANNEX I 

List of the cooperating manufacturers referred to in Article 1(2) under TARIC additional code 
A793: 

Name 

Address 

Agro-On (Thailand) Co., Ltd. 

B.N.H. Canning Co., Ltd. 

Boonsith Enterprise Co., Ltd. 

Erawan Food Public Company Limited 

Great Oriental Food Products Co., Ltd. 

Kuiburi Fruit Canning Co., Ltd. 

Lampang Food Products Co., Ltd. 

O.V. International Import-Export Co., Ltd. 

Pan Inter Foods Co., Ltd. 

Siam Food Products Public Co., Ltd. 

Viriyah Food Processing Co., Ltd. 

Vita Food Factory (1989) Ltd. 

50/499-500  Moo  6,  Baan  Mai,  Pakkret, 
Monthaburi 11120, Thailand  

425/6-7  Sathorn  Place  Bldg.,  Klongtonsai, 
Klongsan, Bangkok 10600, Thailand 

7/4  M.2,  Soi  Chomthong  13,  Chomthong  Rd., 
Chomthong, Bangkok 10150, Thailand 

Panjathani Tower 16th floor, 127/21 Nonsee Rd., 
Chongnonsee,  Yannawa,  Bangkok  10120, 
Thailand 

888/127  Panuch  Village,  Soi  Thanaphol  2, 
Samsen-Nok,  Huaykwang,  Bangkok  10310, 
Thailand 

236  Krung  Thon  Muang  Kaew  Bldg.,  Sirindhorn 
Rd., Bangplad, Bangkok 10700, Thailand 

22K  Building,  Soi  Sukhumvit  35,  Klongton  Nua, 
Wattana, Bangkok 10110, Thailand 

121/320  Soi  Ekachai  66/6,  Bangborn,  Bangkok 
10500, Thailand  

400  Sunphavuth  Rd.,  Bangna,  Bangkok  10260, 
Thailand 

3195/14  Rama  IV  Rd.,  Vibulthani  Tower  1,  9th 
Fl., Klong Toey, Bangkok, 10110, Thailand 

100/48 Vongvanij B Bldg, 18th Fl, Praram 9 Rd., 
Huay Kwang, Bangkok 10310, Thailand 

89  Arunammarin  Rd.,  Banyikhan,  Bangplad, 
Bangkok 10700, Thailand 

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The  following  elements  shall  be  indicated  in  the  commercial  invoice  accompanying  the 
company's sales to the Community of goods which are subject to the undertaking: 

ANNEX II 

1. 

2. 

3. 

4. 

5. 

6. 

The  heading  "COMMERCIAL  INVOICE  ACCOMPANYING  GOODS  SUBJECT 
TO AN UNDERTAKING". 

The name of the company issuing the commercial invoice. 

The commercial invoice number. 

The date of issue of the commercial invoice. 

The TARIC additional code under which the goods on the invoice are to be customs-
cleared at the Community frontier. 

The exact description of the goods, including: 

– 

– 

– 

– 

– 

the product code number (PCN) used for the purpose of the undertaking, 

plain language description of the goods corresponding to the PCN concerned, 

the company product code number (CPC), 

Taric code, 

quantity (to be given in tonnes). 

7. 

The description of the terms of the sale, including: 

– 

– 

– 

– 

price per tonnes, 

the applicable payment terms, 

the applicable delivery terms, 

total discounts and rebates. 

8. 

9. 

Name  of  the  company  acting  as  an  importer  in  the  Community  to  which  the 
commercial invoice accompanying goods subject to an undertaking is issued directly 
by the company.  

The name of the official of the company that has issued the commercial invoice and 
the following signed declaration: 

“I, the undersigned, certify that the sale for direct export to the European Community 
of the goods covered  by  this  invoice is being made within the scope  and under the 
terms  of  the  Undertaking  offered  by  [COMPANY],  and  accepted  by  the  European 
Commission  through  [Decision  2007/XXXX/EC].  I  declare  that  the  information 
provided in this invoice is complete and correct.” 

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