Council Regulation (EC) No 954/2008 of 25 September 2008 amending 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: 2008-09-25
Institutions: Council of the European Union
Subjects: Thailand, anti-dumping duty, import, maize, originating product, preserved product

30.9.2008

EN

Official Journal of the European Union

L 260/1

(Acts adopted under the EC Treaty/Euratom Treaty whose publication is obligatory)

I

REGULATIONS

COUNCIL REGULATION (EC) No 954/2008

of 25 September 2008

amending 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,

B. CURRENT INVESTIGATION

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. MEASURES IN FORCE

By Regulation (EC) No 682/2007 (2) (the definitive Regu­
imposed a definitive anti-dumping
lation), the Council
duty on imports
certain
into the Community of
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.
cooperating parties, a
Given the
sample of Thai exporting producers was selected during
the investigation which led to the imposition of
the
measures.

large number of

rates

established during the

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

(3)

On 30 August 2007, after the imposition of definitive
measures on imports of
sweetcorn originating in
Thailand, 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 appli­
cation to the Court of First Instance. In that application,
the company claimed that it should have been granted an
individual examination.

(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 inves­
tigation (3). The reopening was limited in scope to the
examination of dumping as far as Kuiburi is concerned.

(5)

(6)

The Commission officially advised Kuiburi, the represen­
tatives 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.

information
The Commission sought
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.

to verify the

(1) OJ L 56, 6.3.1996, p. 1.
(2) OJ L 159, 20.6.2007, p. 14.

(3) OJ C 7, 12.1.2008, p. 21.

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(7)

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).

(12)

in

claimed

Following the disclosure of the essential facts and con­
the findings in this
siderations forming the basis of
proceeding, Kuiburi
constructing
that
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 representa­
tivity 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
the
more than that 5 % threshold.
company’s
category of
same general
sales of
products as compared to the sales of
the product
concerned to the Community, are very significant and,
the
therefore,
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.

In any event,

representative.

In view of

the above,

the

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 recitals 21 to 36 of Commission Regu­
lation (EC) No 1888/2006 (1)
(the provisional Regu­
lation), 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
company’s
considered to be
representative
domestic sales volume exceeds 5 % of its total export
sales to the Community.

the

if

(8)

(9)

(10)

(13)

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 Regu­
lation. 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. As in the original
it
was decided not to establish the SG&A expenses and
profit on the basis of Article 2(6)(a) of the basic Regu­
lation, 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
investigation, the SG&A expenses
done in the original
in accordance with
and profit were
determined
Article 2(6)(b) as Kuiburi had representative sales,
in
the ordinary course of
the same general
category of products.

investigation,

trade, of

In this respect

Kuiburi further submitted that if SG&A and profit were
established pursuant to Article 2(6)(b) of the basic Regu­
lation, 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 dom­
estically.
to note that
Kuiburi had allocated the cost of sales on the basis of
turnover. Consequently, the profit and SG&A amounted
in the case of sales of all
to the same combined level
product
figures
types to all markets and the profit
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.

is important

it

(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.

(1) OJ L 364, 20.12.2006, p. 68.

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.

(15)

(16)

(17)

(18)

(19)

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Comparison

(20)

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

transport

handling

taken,

costs,

in

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 under­
cutting 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 %.

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

included costs

(22)

Dumping margin

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

export price,

The comparison showed the existence of dumping. The
weighted average dumping margin established for the
company,
cif
a percentage of
Community-frontier price, amounts to 14,3 %.

expressed

the

as

2. Injury elimination level

level of

the anti-dumping measure

In accordance with Article 9(4) of the basic Regulation,
should be
the
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 to 122 of the provisional Regulation.

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

the results of

the investigation,

is
In the light of
considered that a definitive anti-dumping duty should
be imposed on exports of the product concerned by
the company at
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.

the level of

it

to

shall

be 14,3 %.

recital 57 of Regulation

(23) Accordingly, the anti-dumping duty applicable to the cif
Since,
Community-frontier price
pursuant
(EC) No
682/2007, the duty for the companies not cooperating
in the investigation should be set at the level of the
highest duty to be imposed on the companies coop­
that duty is now set at
erating in the investigation,
the investi­
14,3 %. However, since the reopening of
gation 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(3) of the basic
Regulation,
it would not be appropriate to recalculate
the duty for the manufacturers listed in Annex I.

(24)

and the Community

Kuiburi
Industry have been
informed of the findings of the investigation and have
had the opportunity to submit their comments,

HAS ADOPTED THIS REGULATION:

Article 1

Article 1(2) of 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

Anti-dumping duty (%)

TARIC additional code

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

3,1

A789

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Company

Anti-dumping duty (%)

TARIC additional code

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

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

River Kwai
Thaniya Plaza, 21st.
Bangkok 10500, Thailand

International Food Industry Co., Ltd, 52
Floor, Silom Rd., Bangrak,

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

Manufacturers listed in Annex I

All other companies

14,3

12,8

12,8

11,1

12,9

14,3

A890

A790

A791

A792

A793

A999’

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

Article 2

‘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

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

Erawan Food Public Company Limited

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

Great Oriental Food Products Co., Ltd

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

Lampang Food Products Co., Ltd

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

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

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

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

Viriyah Food Processing Co., Ltd

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

Vita Food Factory (1989) Ltd

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

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This Regulation shall enter into force on the day following 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, 25 September 2008.

For the Council
The President
B. HORTEFEUX