Council Regulation (EC) No 682/2007 of 18 June 2007 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain prepared or preserved sweetcorn in kernels originating in Thailand
Date: 2007-06-18
Institutions: Council of the European Union
Subjects: Thailand, anti-dumping duty, import (EU), maize, originating product, prepared foodstuff, preserved product

L 159/14

EN

Official Journal of the European Union

20.6.2007

COUNCIL REGULATION (EC) No 682/2007

of 18 June 2007

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

THE COUNCIL OF THE EUROPEAN UNION,

(3)

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

Having regard to the Treaty
Community,

establishing the European

Having regard to Council Regulation (EC) No 384/96 of 22
December 1995 on protection against dumped imports from
countries not members of the European Community (1)
(the
‘basic Regulation’) and in particular Article 9 thereof,

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

Whereas:

(1)

(2)

A. PROVISIONAL MEASURES

the Commission published a
On 28 March 2006,
notice (2)
initiating an anti-dumping proceeding on
imports into the Community of certain prepared or
preserved sweetcorn in kernels originating in Thailand.
On 20 December 2006, the Commission, by Regulation
(EC) No 1888/2006 (3)
(the provisional Regulation)
imposed a provisional anti-dumping duty on imports
of the same product.

B. SUBSEQUENT PROCEDURE

anti-dumping measures,

Subsequent to the disclosure of the essential facts and
considerations on the basis of which it was decided to
impose provisional
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
the Thai Government
Association of Thai producers,
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 sweetcorn.

(1) 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).

(2) OJ C 75, 28.3.2006, p. 6.
(3) OJ L 364, 20.12.2006, p. 68.

(4)

(5)

(6)

the essential

All parties were informed of
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
sweetcorn 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 appro-
priate, 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
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, under-
selling and injury elimination is the aforementioned IP.

assessment,

relevant

injury

the

for

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)

the provisional Regulation.

A number of exporters and an association of Thai
producers raised objections to the sampling and indi-
vidual examination assessment described in recitals 16
to 20 of
it
the sample was not representative
was claimed that
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.

In particular,

20.6.2007

EN

Official Journal of the European Union

L 159/15

(9)

(10)

four

these

it was

appropriate

companies within the

the provisional
As explained in recitals 16 to 18 of
Regulation, the Commission considered that in order to
reach the highest possible representativeness of
the
sample taking into account the time limits of the inves-
to include only four
tigation,
companies in the sample since (i) this allowed coverage
of a large volume of exports and (ii) it was feasible to
investigate
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
investigation period,
total Thai
which indeed is considered as highly representative on
a volume basis.

exports during the

largest

representative volume of

In accordance with Article 17(1) of the basic Regulation,
the criteria applied for the selection of the sample was
the
from
Thailand 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
it was not considered necessary to examine
volume,
other factors such as the size of the companies or their
geographical location.

exports

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

investigation unduly burdensome

(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 math-
ematical errors had been made in its normal value calcu-
lation. 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.

(15)

(16)

(17)

(18)

3. Export Price

the company,

exporting
Following the provisional disclosure, one
producer contested the findings in recital 34 of
the
provisional Regulation. This party claimed that all
export sales of
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.

determining

In this context,
it is to be noted that only products
produced by the exporting producer in question can be
considered when
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
individual dumping
considered when establishing its
margin.

individual

and that

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
this exporter always paid for
was further found that
finished products
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.

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
the manufacturing process, as evidenced by the
of
purchase invoices,
this exporting
producer cannot be considered as the producer, or co-
producer, of the product purchased for resale.

is confirmed that

it

L 159/16

EN

Official Journal of the European Union

20.6.2007

(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.

In this respect,

to Article 2(10)(k) of

(20) An association of importers claimed that an adjustment
pursuant
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 sweetcorn after the
flooding.
it should be noted that the
claim was not made by any of the exporting producers
themselves, nor quantified. Moreover, flooding is a rela-
tively common occurrence in Thailand and cannot be
considered as an unforeseeable event when negotiating
the
contracts and in particular export prices. Finally,
analysis showed that the possible effect,
if any, of the
flooding on the price of raw material sweetcorn would
have been limited only to the last quarter of the IP when,
in fact, the vast majority of raw material purchases by
took place before that period.
exporting producers
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 in 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

Company

Karn Corn

Malee Sampran

River Kwai

Sun Sweet

Dumping
margin

3,1 %

17,5 %

15,0 %

11,1 %

(25)

the cooperating companies not

selected in the
For
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
the basic Regulation. This weighted average
9(6) of
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 pro-
visional Regulation is hereby confirmed.

E. INJURY

(27) One

the

interested party submitted that

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
Agreement (1), as it would, allegedly, ‘be intended to arti-
ficially 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 24.7.2001 (2) (AB) where it
is held that ‘the investigating authorities are not entitled
to conduct
it
becomes more likely that, as a result of the fact-finding
or evaluation process,
the
domestic industry is injured’ (paragraph 196 of the AB).

their investigation in such a way that

they will determine that

(28)

Firstly, the existence of the two different sales channels
described by the Commission under recitals 50 and 51 of
together with its ensuing
the provisional Regulation,
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 estab-
lished under recital 51 of the provisional Regulation, that
all imports from the cooperating Thai exporters pertain
is not contested either.
to the retailer's brand channel
‘It should
Rather,
be reminded that Thai sales to retailers in Europe are
made under the retailers' private label’.

it is acknowledged by the claimant:

(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:

(1) Agreement on Implementation of Article VI of

the General

Agreement on Tariffs and Trade 1994.

(2) WT/DS184/AB/R, 23.8.2001, United States — Anti-Dumping

Measures on Certain Hot-Rolled Steel Products from Japan.

20.6.2007

EN

Official Journal of the European Union

L 159/17

(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,
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.

for

complemented below their

(30) However, the AB in paragraph 204 went on to say that
‘[…] where investigating authorities undertake an exam-
ination 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
injury analysis
therefore
with regard to the three injury indicators which had
been analysed separately under
the retailer's brand
channel in the provisional Regulation. These three indi-
cators 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 pro-
visional 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.
the own brand channel
Consequently,
accounted for around 37 % of the total.

sales under

(32)

The sales volume by the Community industry of own
first
brand products on the Community market
declined by 1 % in 2003,
increased by six percentage
points in 2004, and declined by six 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.

throughout

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

(34) During the period considered,

the profitability of

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

2002

2003

2004

IP

EC Sales volume (own brand)
customers (tonne)

to unrelated

68 778

68 002

72 387

68 193

Index (2002 = 100)

100

99

105

99

Unit price EC market (own brand) (EUR/tonne)

1 380

1 405

1 386

1 361

Index (2002 = 100)

100

102

100

99

Profitability of EC sales to unrelated (own
brand) (% of net sales)

29,7 %

29,0 %

27,4 %

23,6 %

Index (2002 = 100)

Source: Investigation

100

98

92

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.

L 159/18

EN

Official Journal of the European Union

20.6.2007

(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
listed under
Agreement as all
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.

the injury indicators

(40) As regards items (i) and (ii) in recital (38), it is noted that
the two submissions consisted merely in a few unsub-
stantiated allegations. In the submission referred to under
(i), the claimant had itself indicated that ‘further infor-
regarding these abuses, which
mation and evidence,
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.

(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)

(39)

interested parties claimed that the Community
Several
industry had engaged in restrictive
trade practices,
allegedly characterised, notably, by the fixing of prices
in the Community market for sweetcorn. 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
the complainant Association
from the Chairman of
mentioned under recital 1 of the provisional Regulation.
In one of
the
Chairman of
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.

these e-mails, dated 13 April 2005,

the

immediately

therefore requested the
The above interested parties
the present
Commission to terminate
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
alleged anti-competitive
the
artificially
behaviour of the Community industry. One party made
explicit reference to both Article 3(7) of the basic Regu-
lation and to the Mukand case (1),
to request
the
impact on the
the potential
Commission to assess
injurious
industry
stemming from the
alleged anti-competitive
behaviour, prior to any conclusion on causation.

of
the
above

inflated by

Community

situation

(1) Case T-58/99 Mukand and others v. Council (2001) ECR II-2521.

to forward the same material

(41) Upon receipt of those e-mails, the Commission services
in charge of anti-dumping matters immediately invited
the claimant
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)

in the framework of

the Community
The Chairman strongly denied that
industry had,
in fact, ever reached an agreement nor
applied any ‘reference’ prices as suggested in the e-mail.
Since,
the present anti-dumping
proceeding, the Commission services dispose of detailed
information on prices by model on a transaction-by-
transaction basis, from all the cooperating Community
producers,
it was verified whether any price alignment
could, in fact, be detected.

(43) No evidence of an effective price alignment amongst
cooperating 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.

20.6.2007

EN

Official Journal of the European Union

L 159/19

the
the above elements,
(46) As a consequence of all
the current anti-dumping
Commission considers that
investigation has not
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.

found any evidence that

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

2. Impact of weather conditions

(53)

(47)

claimed that

interested parties

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

the heatwave of
flooding

(i)
the

the

(48)

It was carefully examined if the heatwave 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.

parties

interested

claimed
further

that:
(i)
how it

the
Several
clarify
had
Commission
should
that could be achieved in the
computed the profit
absence of dumped imports of 14 % as mentioned in
recital 121 of the provisional Regulation; and (ii) the
aforementioned profit of 14 % was too high. With
regard to the latter claim, reference was made to recent
concerning
safeguard and anti-dumping proceedings
similarly
as
fruits (1) and frozen strawberries (2),
preserved citrus
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.

agricultural

processed

products

such

(49)

level.

Indeed,

sweetcorn on a
data

sweetcorn harvested per hectare)
It

It was found that the 2003 heatwave and the 2005
flooding had virtually no impact on the harvested
quantity of
global, Community
from the
obtained
industry,
Community producers in the framework of the investi-
gation showed very stable figures for the yields (in tonnes
the
of
period considered.
the
Commission had found, as described under recitals 86
and 87 of
the unit
the provisional Regulation,
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.

throughout
reminded that

further

that

is

(50)

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.

(54) With respect to claims (i) and (iii) above, recital 121 of
the profit of
the provisional Regulation explains that
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
lowest. The
volume of dumped imports was
Commission considered it
the
to take
average of
these two profit rates, which amounts to
14 %.

the
reasonable

the

reflect

(55) With respect to claim (ii) above, it is considered that the
profit in the absence of dumped imports must, as much
as possible,
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,
was upheld by the Court of First Instance in the EFMA
case (3).

specificities of

actual

(51)

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

(1) Commission Regulation (EC) No 658/2004 (OJ L 104, 8.4.2004,

p. 67) (see recital 115).

(2) Commission Regulation (EC) No 1551/2006 (OJ L 287, 18.10.2006,

p. 3) (see recital 144).

(3) Case T-210/95 EFMA v Council, [1999] ECR II-3291 (paragraph 54

et seq.).

L 159/20

EN

Official Journal of the European Union

20.6.2007

(56)

(ii) and (iii) are therefore rejected and the
Claims (i)
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 cooperating in the inves-
tigation. Therefore, the residual duty is set at the rate of
12,9 %.

(58)

The definitive duties will therefore be as follows:

Company

Injury margin

Dumping margin

Anti-dumping duty

Karn Corn

Malee Sampran

River Kwai

Sun Sweet

31,3 %

3,1 %

3,1 %

12,8 %

17,5 %

12,8 %

12,8 %

15,0 %

12,8 %

18,6 %

11,1 %

11,1 %

Cooperating 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
two companies
mentioned in recital 60), they failed to submit under-
taking offers within the time limit foreseen in Article
8(2) of the basic Regulation.

(save

the

for

in Article 8(2) of

(60) A cooperating exporting producer failed to submit a
sufficiently substantiated undertaking offer within the
deadlines set
the basic Regulation.
Consequently no undertaking offer could be accepted
by the Commission from this exporting producer. Never-
theless, the Council,
in view of the complexity of the
issue for the economic operator in question and for
in a similar
other cooperating exporting producers
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)

the

ceiling

quantitative

combined with

Subsequent to the definitive disclosure two cooperating
exporting producers offered acceptable price under-
takings
in
a
accordance with Articles 8(1) and 8(2) of the basic Regu-
lation. They have offered to sell the product concerned
within the quantitative ceiling at or above price levels
effects of dumping.
injurious
which eliminate
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
the undertaking can be monitored effectively by
that
the Commission. Furthermore,
the sales structure of
these companies is such that the Commission considers
that the risk of circumventing the agreed undertaking is
limited.

20.6.2007

EN

Official Journal of the European Union

L 159/21

(62)

The Commission, by Decision 2007/424/EC (1), accepted
the above undertaking offers. The Decision sets out in
more detail the reasons for accepting these undertakings.

facts,
concerned have been informed of
considerations and obligations upon which acceptance
is based.

the essential

(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
invoice
undertaking invoice, which is a commercial
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 under-
taking 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.

(68)

In the event of a breach or withdrawal of the under-
takings, or in case of withdrawal of acceptance of under-
taking 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.

(69)

(70)

J. DEFINITIVE COLLECTION OF THE PROVISIONAL
DUTY

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 pro-
visional Regulation should be definitively collected to the
extent of the amount of definitive duties imposed.

the

duty

rates

company

individual

findings of

the present

anti-dumping

(as opposed to the

The
rates
specified in this Regulation were established on the
basis of
investigation.
Therefore, they reflect the situation found during that
to these companies. These
investigation with respect
duty
countrywide 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’.

(66)

to Article 14(7) of

the basic Regulation,
Pursuant
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

(1) See page 41 of this Official Journal.

(e.g.

(71) Any claim requesting the application of these individual
company anti-dumping duty rates
following a
the entity or following the
change in the name of
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
that change in the production and sales
change or
entities.
If appropriate, the Regulation will accordingly
be amended by updating the list of companies benefiting
from individual duties,

L 159/22

EN

Official Journal of the European Union

20.6.2007

HAS ADOPTED THIS REGULATION:

Article 1

acetic acid, not frozen, other than products of heading 2006,
falling within CN code
(TARIC code
2005 80 00 10), originating in Thailand.

ex 2005 80 00

A definitive anti-dumping duty is hereby imposed on
1.
imports of sweetcorn (Zea mays var.
in kernels,
prepared or preserved by vinegar or acetic acid, not frozen,
(TARIC code
falling within CN code
2001 90 30 10) and sweetcorn (Zea mays var. saccharata)
in
kernels prepared or preserved otherwise than by vinegar or

ex 2001 90 30

saccharata)

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:

Company

Anti-dumping
duty (%)

TARIC
additional code

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

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

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

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

Manufacturers listed in Annex I

All other companies

3,1

12,8

12,8

11,1

12,9

12,9

A789

A790

A791

A792

A793

A999

Notwithstanding the first subparagraph, the definitive anti-
3.
dumping duty shall not apply to imports released for free circu-
lation in accordance with Article 2.

— such imports are accompanied by an undertaking invoice
which is a commercial
the
elements and the declaration stipulated in Annex II of this
Regulation, and

invoice containing at

least

Unless otherwise

4.
concerning customs duties shall apply.

specified,

the provisions

in force

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

Article 2

A customs debt shall be incurred at the time of acceptance

2.
of the declaration for release into free circulation:

1.
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 Decision
2007/424/EC, as from time to time amended, shall be exempt
from the anti-dumping duty imposed by Article 1, on condition
that:

— 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

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

— 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 trans-
actions and declares the relevant undertaking invoices as
invalid.

20.6.2007

EN

Official Journal of the European Union

L 159/23

Article 3

The amounts secured by way of provisional anti-dumping duties
pursuant to Commission Regulation (EC) No 1888/2006 on
imports of sweetcorn (Zea mays var.
in kernels,
prepared or preserved by vinegar or acetic acid, not frozen,
(TARIC code
falling within CN code
2001 90 30 10) and sweetcorn (Zea mays var. saccharata)
in
kernels prepared or preserved otherwise than by vinegar or
acetic acid, not frozen, other than products of heading 2006,
(TARIC code
falling within CN code

ex 2001 90 30

ex 2005 80 00

saccharata)

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.

Article 4

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

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

Done at Luxembourg, 18 June 2007.

For the Council
The President

F.-W. STEINMEIER

L 159/24

EN

Official Journal of the European Union

20.6.2007

ANNEX I

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

Name

Address

Agroon (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.

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., Chong-
nonsee, 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

Pan Inter Foods Co., Ltd.

400 Sunphavuth Rd., Bangna, Bangkok 10260, Thailand

Siam Food Products Public Co., Ltd.

Viriyah Food Processing Co., Ltd.

Vita Food Factory (1989) Ltd.

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

20.6.2007

EN

Official Journal of the European Union

L 159/25

ANNEX II

The following elements shall be indicated in the commercial
Community of goods which are subject to the undertaking:

invoice accompanying the company’s sales to the

1. The heading ‘COMMERCIAL INVOICE ACCOMPANYING GOODS SUBJECT TO AN UNDERTAKING’.

2. The name of the company issuing the commercial invoice.

3. The commercial invoice number.

4. The date of issue of the commercial invoice.

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

frontier.

6. 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 tonne,

— the applicable payment terms,

— the applicable delivery terms,

— total discounts and rebates.

8. 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.

9. 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 2007/424/EC. I declare that the information provided in this invoice
is complete and correct.’