Proposal for a Council Regulation amending Council Regulation (EC) No 682/2007 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: 2008-08-28
Institutions: European Commission
Subjects: Thailand, anti-dumping duty, anti-dumping legislation, maize, preserved product

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 28.8.2008 
COM(2008) 531 final 

Proposal for a 

COUNCIL REGULATION 

amending Council Regulation (EC) No 682/2007 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 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

1) 

110 

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  ("the  basic  Regulation")1  in  the  proceeding  concerning 
imports of certain sweetcorn originating in Thailand.  

120 

•  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 

Council  Regulation  (EC)  No  682/20072  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. 

•  Consistency with other policies and objectives of the Union 

Not applicable. 

139 

141 

2) 

CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

•  Consultation of interested parties 

219 

229 

230 

The  company  concerned  and  the  Community  industry  have  been  informed  of  the 
findings of the examination and have had the opportunity to submit their comments. 

•  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  make  provision  for  a  general  impact  assessment  but 
contains an exhaustive list of conditions that have to be assessed. 

3) 

LEGAL ELEMENTS OF THE PROPOSAL 

1 

2 

OJ  L  56,  6.3.1996,  p.  1.  Regulation  as  last  amended  by  Council  Regulation  (EC)  No  2117/2005  (OJ 
L 340, 23.12.2005, p. 17). 
OJ L 159, 20.6.2007, p. 14.  

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305 

•  Summary of the proposed action 

By Regulation (EC) No 682/2007, the Council imposed a definitive anti-dumping duty 
on imports of prepared or preserved sweetcorn in kernels originating in Thailand.  

During  the  investigation  which  led  to  the  imposition  of  measures,  given  the  large 
number  of  exporting  producers  of  the  product  concerned  in  Thailand,  sampling  was 
applied. 

16 companies applied for the sample; four were selected. One of the 12 companies not 
selected  in  the  sample,  Kuiburi,  nevertheless  submitted  a  questionnaire  reply  as  it 
sought an individual determination. The company was not individually examined and, 
after the imposition of definitive measures, it lodged an application to the Court of First 
Instance. 

Following  the  company's  application  to  the  CFI  raised  by  Kuiburi,  the  Commission 
decided to reopen the investigation in order to establish an individual determination for 
Kuiburi. The attached proposal is the result of that reopening. 

It is therefore proposed that the Council adopts the attached proposal for a Regulation, 
which sets the individual duty rate of Kuiburi. The Regulation should be published in 
the Official Journal of the European Union. 

310 

•  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 ("the basic 
Regulation"). 

329 

•  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). 

331 

332 

Council  Regulation  (EC)  No  682/2007  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  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 

341 

Proposed instruments: regulation. 

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342 

4) 

409 

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

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

BUDGETARY IMPLICATION 

The proposal has no implication for the Community budget. 

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Proposal for a 

COUNCIL REGULATION 

amending Council Regulation (EC) No 682/2007 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, 

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 Community (the ‘basic 
Regulation’)3, and in particular Article 9 thereof, 

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

Whereas: 

A.  MEASURES IN FORCE 

(1) 

By Regulation (EC) No 682/20074 (the 'definitive Regulation'), the Council imposed a 
definitive  anti-dumping  duty  on  imports  into  the  Community  of  certain  prepared  or 
preserved  sweetcorn  in  kernels,  originating  in  Thailand  (‘the  product  concerned’), 
normally declared within CN codes ex 2001 90 30 and ex 2005 80 00. Given the large 
number  of  co-operating  parties,  a  sample  of  Thai  exporting  producers  was  selected 
during the investigation which led to the imposition of the measures. 

(2) 

The  sampled  companies  were  attributed  the  individual  duty  rates  established  during 
the  investigation.  A  countrywide  duty  of  12,9  %,  based  on  the  weighted  average 
dumping margin of the sampled parties, was imposed on all other companies. 

B. 

CURRENT INVESTIGATION 

(3) 

After  the  imposition  of  definitive  measures  on  imports  of  sweetcorn  originating  in 
Thailand,  on  30  August  2007,  Kuiburi  Fruit  Canning  Co.,  Limited  ('Kuiburi'  or  'the 
company'), an exporting producer which was not selected in the sample but which had 
provided  the  Commission  with  a  full  questionnaire  reply  and  had  requested  an 
individual examination, submitted an application to the Court of First Instance. In that 
application,  the  company  claimed  that  it  should  have  been  granted  an  individual 
examination. 

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OJ  L  56,  6.3.1996,  p.  1.  Regulation  as  last  amended  by  Council  Regulation  (EC)  No  2117/2005  (OJ 
L 340, 23.12.2005, p. 17). 
OJ L 159, 20.6.2007, p. 14. 

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(4)  Without prejudice to the position which  the Community institutions will take should 
that case be pursued by the applicant, the Commission decided on its own initiative to 
initiate  a  partial  reopening  of  the  anti-dumping  investigation5.  The  reopening  was 
limited in scope to the examination of dumping as far as Kuiburi is concerned. 

(5) 

(6) 

(7) 

(8) 

(9) 

(10) 

The  Commission  officially  advised  Kuiburi,  the  representatives  of  the  exporting 
country  and  the  Community  industry  of  the  partial  reopening  of  the  investigation. 
Interested  parties  were  given  the  opportunity  to  make  their  views  known  in  writing 
and to be heard. 

The  Commission  sought  to  verify  the  information  provided  by  Kuiburi  which  it 
deemed  necessary  for  the  determination  of  dumping  and  a  verification  visit  was 
carried out at the premises of the company. 

As  set  out  in  the  definitive  Regulation,  the  investigation  of  dumping  covered  the 
period from 1 January 2005 to 31 December 2005 (‘the investigation period’ or ‘IP’). 

C. 

FINDINGS 

1.  Dumping 

The methodology used for the calculation of dumping was the same as that applied for 
the  sampled  companies,  as  described  in  recital  (21)-(36)  of  Regulation  (EC)  No 
1888/20066 (the 'provisional Regulation'), and confirmed in the definitive Regulation. 

Normal value 

For  the  determination  of  normal  value  the  Commission  first  established  whether  the 
total  domestic  sales  of  the  like  product  were  representative  in  comparison  with  the 
company's total export sales to the Community. In accordance with Article 2(2), first 
sentence, of the basic Regulation, the domestic sales of the like product are considered 
to be representative if the company's domestic sales volume exceeds 5 % of its total 
export sales to the Community. 

It  was  established  that  the  like  product  was  not  sold  at  all  on  the  domestic  market. 
Therefore,  normal  value  had  to  be  constructed  pursuant  to  Article  2(3)  of  the  basic 
Regulation. Normal value was constructed by adding to the cost of manufacturing of 
each  type  exported  to  the  Community,  corrected  where  appropriate,  a  reasonable 
amount  for  selling,  general  and  administrative  (SG&A)  expenses  and  profit.  Like  in 
the  original  investigation,  it  was  decided  not  to  establish  the  SG&A  expenses  and 
profit on the basis of Article 2(6)(a) of the basic Regulation, since only one company 
which  had  been  included  in  the  sample  had  representative  domestic  sales  of  the  like 
product.  Therefore,  also  in  conformity  with  what  was  done  in  the  original 
investigation,  the  SG&A  expenses  and  profit  were  determined  in  accordance  with 
Article 2(6)(b) as Kuiburi had representative sales, in the ordinary course of trade, of 
the same general category of products. 

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OJ C 7, 12.1.2008, p. 21. 
OJ L 364, 20.12.2006, p. 68. 

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(11)  The  costs  of  manufacturing  and  SG&A  expenses  reported  were  found  to  be 
understated and were corrected before being used in constructing normal value. 

(12)  Following the disclosure of the essential facts and considerations forming the basis of 
the findings in this proceeding, Kuiburi claimed that in constructing normal value, the 
amounts  for  SG&A  expenses  and  profit  should  be  established  pursuant  to  Article 
2(6)(c) of the basic Regulation. The company argued that Article 2(6)(b) could not be 
used as the domestic sales of other products (i) included non-canned products and (ii) 
were in any case not representative. As concerns the first argument, the definition of 
the  product  concerned  does  not  include  any  specific  receptacle  type  and  therefore  is 
not  limited  to  products  packed  in  cans.  By  analogy,  the  same  applies  to  the  same 
general  category  of products. Concerning the second argument, it is to be  noted that 
the  5  %  threshold  referred  to  in  Article  2(2)  of  the  basic  Regulation  serves  to 
determine  the  representativity  of  domestic  sales  of  the  like  product  (as  compared  to 
sales  of  the  product  concerned  to  the  Community).  It  is  not  required,  for  the 
application  of  Article  2(6)(b),  that  sales  of  the  same  general  category  of  products 
represent more than that 5 % threshold. In any event, the company's sales of the same 
general category of products as compared to the sales of the product concerned to the 
Community, are very significant and, therefore, representative. In view of the above, 
the company's arguments cannot be accepted and it is confirmed that SG&A expenses 
and profit are established pursuant to Article 2(6)(b) of the basic Regulation. 

(13)  Kuiburi further submitted that if SG&A and profit were established pursuant to Article 
2(6)(b) of the basic Regulation, a level of trade adjustment on the profit used for the 
construction  of  normal  value  would  have  to  be  made  as  it  sells  retailer  branded 
products  to  the  EC  and  a  mix  of  own  branded  and  retailer  branded  products 
domestically. In this respect it is important to note that Kuiburi had allocated the cost 
of sales on the basis of turnover. Consequently, the profit and SG&A amounted to the 
same  combined  level  in  the  case  of  sales  of  all  product  types  to  all  markets  and  the 
profit figures reported only reflected some slight variation in SG&A. It could therefore 
not be established that the reported figures reflected differences in the level of trade. 
As a consequence, no level of trade adjustment on the profit is warranted and Kuiburi's 
argument is dismissed. 

Export price 

(14)  All  sales  of  the  company  were  made  directly  to  unrelated  customers  in  the 
Community.  For  those  sales,  the  export  price  was  established  in  accordance  with 
Article 2(8) of the basic Regulation, on the basis of prices actually paid or payable by 
these independent customers in the Community. 

Comparison 

(15)  The  comparison  between  normal  value  and  export  price  was  made  on  an  ex-works 
basis.  In  order  to  ensure  a  fair  comparison,  account  was  taken,  in  accordance  with 
Article  2(10)  of  the  basic  Regulation,  of  differences  in  factors  which  affect  price 
comparability.  Allowances  for  differences  in  transport  costs,  handling  costs, 
commissions, and credit costs were granted where applicable and justified. 

(16)  The SG&A used to construct normal value pursuant to the methodology set out above, 
included costs for commissions. Therefore, albeit that no claim had been made in this 

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regard, an ex-officio adjustment to the normal value pursuant to Article 2(10)(e) was 
made  to  reduce  the  SG&A  by  the  amount  of  the  costs  incurred  in  respect  of 
commissions. 

Dumping margin 

(17)  Kuiburi's dumping margin was established on the basis of a comparison of a weighted 
average normal value with a weighted average export price, in accordance with Article 
2(11) and (12) of the basic Regulation. 

(18)  The  comparison  showed  the  existence  of  dumping.  The  weighted  average  dumping 
margin  established  for  the  company,  expressed  as  a  percentage  of  the  CIF 
Community-frontier price, amounts to 14,3 %. 

2. 

Injury elimination level 

(19) 

In accordance with Article 9(4) of the basic Regulation, the level of the anti-dumping 
measure should be sufficient to eliminate the injury to the Community industry caused 
by the dumped imports, without exceeding the dumping margin found. The calculation 
of the non-injurious price has been described in recitals (120)-(122) of the provisional 
Regulation.  

(20)  The  necessary  price  increase  was  then  determined  on  the  basis  of  a  comparison,  per 
product  type,  of  the  weighted  average  import  price,  as  established  for  the  price 
undercutting calculations, with the non-injurious price of the like product sold by the 
Community  industry  on  the  Community  market.  Any  difference  resulting  from  this 
comparison was then expressed as a percentage of the total CIF Community-frontier 
price. 

(21)  The above price comparison showed an injury margin of 17,5 %. 

D.  MODIFICATION OF THE LIST OF COMPANIES BENEFITING FROM 
INDIVIDUAL DUTY RATES 

(22) 

In  the  light  of  the  results  of  the  investigation,  it  is  considered  that  a  definitive  anti-
dumping duty should be imposed on exports of the product concerned by the company 
at the level of the dumping margin found, but, in accordance with Article 9(4) of the 
basic Regulation, should not be higher than the injury margin established for Kuiburi 
and presented in recital (21) above. 

(23)  Accordingly,  the  anti-dumping  duty  applicable  to  the  CIF  Community-frontier  price 
shall  be  14,3  %.  Since,  pursuant  to  recital  (57)  of  Council  Regulation  (EC)  No 
682/2007, the duty for the companies non cooperating in the investigation should be 
set at the level of the highest duty to be imposed on the companies cooperating in the 
investigation,  that  duty  is  now  set  at  14,3  %.  However,  since  the  reopening  of  the 
investigation did not have as its aim to include Kuiburi in the sample, but to perform 
an  individual  examination  of  Kuiburi  on  the  basis  of  Article  17  paragraph  3  of  the 
basic  Regulation,  it  would  not  be  appropriate  to  recalculate  the  duty  for  the 
manufacturers listed in Annex I. 

(24)  Kuiburi  and  the  Community  Industry  have  been  informed  of  the  findings  of  the 

investigation and have had the opportunity to submit their comments, 

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HAS ADOPTED THIS REGULATION: 

Article 1 

Article 1(2) of Council Regulation (EC) No 682/2007 shall be replaced by the following: 

'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 

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

Anti-
dumping 
duty (%) 

TARIC 
additional 
code 

3,1 

A789 

Kuiburi Fruit Canning Co., Ltd., 236 Krung Thon Muang Kaew 
Building, Sirindhorn Rd., Bangplad, Bangkok 10700, Thailand 

14,3 

A890 

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 

14,3 

A793 

A999' 

Article 2 

Annex I of Council Regulation (EC) No 682/2007 shall be replaced by the following: 

Name 

Address 

Agro-on (Thailand) Co., Ltd. 

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

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

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

Boonsith Enterprise Co., Ltd. 

7/4 M.2, Soi Chomthong 13, Chomthong 

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Erawan Food Public Company Limited 

Great Oriental Food Products 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. 

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 

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' 

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

Article 3 

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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