Proposal for a Council Regulation amending Regulation (EC) No 428/2005 imposing a definitive anti-dumping duty on imports of polyester staple fibres originating in the People's Republic of China and Saudi Arabia, amending Regulation (EC) No 2852/2000 imposing a definitive anti-dumping duty on imports of polyester staple fibres originating in the Republic of Korea and terminating the anti-dumping proceeding in respect of such imports originating in Taiwan
Date: 2009-04-22
Institutions: European Commission
Subjects: China, Saudi Arabia, South Korea, Taiwan, anti-dumping duty, anti-dumping legislation, import, man-made fibre, originating product

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 22.4.2009 
COM(2009) 186 final 

Proposal for a 

COUNCIL REGULATION 

amending Regulation (EC) No 428/2005 imposing a definitive anti-dumping duty on 
imports of polyester staple fibres originating in the People's Republic of China and 
Saudi Arabia, amending Regulation (EC) No 2852/2000 imposing a definitive anti-
dumping duty on imports of polyester staple fibres originating in the Republic of Korea 
and terminating the anti-dumping proceeding in respect of such imports originating in 
Taiwan 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

CONTEXT OF THE PROPOSAL  

Grounds for and objectives of the proposal  

This  proposal  concerns  the  implementation  of  the  judgment  of  the  Court  of  First 
Instance of the European Communities in the case Huvis Corporation v. Council of the 
European  Union  (T-221/05)  annulling,  insofar  as  it  concerns  Huvis  Corporation, 
Article 2 of the Council Regulation (EC) No 428/2005 concerning imports of polyester 
staple  fibres  originating,  inter  alia,  in  the  Republic  of  Korea  that  followed  from  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 judgement of the 
Court of First Instance of the European Communities in the case Huvis Corporation v. 
Council of the European Union (T-221/05). According to Article 233 of the Treaty of 
the European Community, institutions whose act has been declared void shall be 
required to take the necessary measures to comply with the 
judgment of the Court of Justice.  

Existing provisions in the area of the proposal 

Council Regulation (EC) No 2852/2000 imposing a definitive anti-dumping duty and 
definitively  collecting  the  provisional  duty  imposed  on  imports  of  polyester  staple 
fibres originating in India and the Republic of Korea  

Consistency with the other policies and objectives of the Union 

Not applicable. 

CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

Consultation of interested parties 

Interested parties concerned by the implementation have already had the possibility to 
defend  their  interests  during  disclosure,  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 judgment of the Court of First 
Instance in the case Huvis Corporation v. Council of the European Union (T-221/05) 
on the interpretation of the basic Regulation. 

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

LEGAL ELEMENTS OF THE PROPOSAL 

Summary of the proposed action 

The Council by Regulation (EC) No 2852/2000 imposed definitive anti-dumping duties 
on  imports  of  polyester  staple  fibres  originating,  inter  alia,  in  the  Republic  of  Korea 
which were amended by Regulation (EC) No 428/2005 following an interim review.  

One  Korean  exporting  producer,  namely  Huvis  Corporation  ('Huvis'),  contested 
Regulation (EC) No 428/2005 with regard to the calculation of its individual duty rate 
before the Court of First Instance. On 8 July 2008, the Court of First Instance annulled 
Article  2  of  Regulation  (EC)  No  428/2005  with  regard  to  the  anti-dumping  duty  rate 
applicable  to  Huvis.  The  anti-dumping  duty  imposed  was  annulled  in  so  far  as  it 
exceeded that which would be applicable if the Institutions had based the duty rate on 
the methodology used in the original investigation. 

Accordingly, the duty rate for Huvis was recalculated which resulted in a different anti-
dumping  duty  rate.  Furthermore,  as  the  individual  rate  calculated  for  Huvis 
Corporation had formed part of the basis for calculating the weighted average duty that 
should apply to non-sampled cooperating Korean exporters, the latter rate should also 
be recalculated. 

It is therefore proposed that the Council adopt the attached proposal for a Regulation 
amending Regulation (EC) No 428/2005. 

Legal basis 

Article 233 of the Treaty establishing the European Community 

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 aforementioned 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. 

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Choice of instruments 

Proposed instruments: regulation. 

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

The aforementioned basic Regulation does not provide for alternative options. 

BUDGETARY IMPLICATION 

The proposal has implications for the Community budget. The amended anti-dumping 
duty will be applicable retroactively resulting in the refund of the difference in duties 
collected based on the original duty rate and the amended duty rate. The final impact 
on the budget has been estimated at 3.750.000 EUR, see attached legislative financial 
statement.  

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Proposal for a 

COUNCIL REGULATION 

amending Regulation (EC) No 428/2005 imposing a definitive anti-dumping duty on 
imports of polyester staple fibres originating in the People's Republic of China and 
Saudi Arabia, amending Regulation (EC) No 2852/2000 imposing a definitive anti-
dumping duty on imports of polyester staple fibres originating in the Republic of Korea 
and terminating the anti-dumping proceeding in respect of such imports originating in 
Taiwan 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Article 
233 thereof,  

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(4) thereof, 

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

Whereas: 

A. PROCEDURE 

(1) 

(2) 

In October 1999, the Commission initiated an investigation (2) with regards to imports 
of  polyester  staple  fibres  ('PSF')  originating  in  the  Republic  of  Korea  ('original 
investigation').  In  July  2000  provisional  anti-dumping  duties  were  imposed  by 
Commission Regulation (EC) No 1472/2000(3) and in December 2000 definitive anti-
dumping duties were imposed by Council Regulation (EC) No 2852/2000(4). 

Pursuant  to  Article  11(3)  of  the  basic  Regulation,  the  Commission  initiated  (5)  an 
interim  review  ('review  investigation')  of  the  anti-dumping  duties  on  imports  of  PSF 
originating,  inter  alia,  in  the  Republic  of  Korea  in  December  2003.  The  duties  on 
imports  from  the  Republic  of  Korea  were  amended  by  Council  Regulation  (EC)  No 
428/2005(6), hereinafter "Regulation 428/2005". 

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OJ L 56, 6.3.1996, p. 1.  
OJ C 285, 7.10.1999, p. 3. 
OJ L 166, 6.7.2000, p. 1. 
OJ L 332, 28.12.2000, p. 17. 
OJ C 309, 19.12.2003, p. 2. 
OJ L 71, 17.3.2005, p. 1. 

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(3) 

(4) 

(5) 

(6) 

(7) 

(8) 

On 10 June 2005, Huvis Corporation ('Huvis') lodged a request(7) before the Court of 
First  Instance  of  the  European  Communities  ('CFI')  to  annul  Article  2  of  Regulation 
428/2005 as far as the anti-dumping duty rate with regard to Huvis was concerned.  

On 8 July 2008, the CFI (8) annulled Article 2 of Regulation 428/2005 with regard to 
Huvis. 

The  CFI  found,  inter  alia,  that  the  Institutions  did  not  sufficiently  justify  the  use  of 
different methodologies applied in the original investigation on the one hand and the 
review  investigation  on  the  other  hand  when  calculating  Huvis'  individual  duty  rate. 
The  findings  of  the  Institutions  in  this  regard  were  therefore  considered  inconsistent 
with Article 11(9) of the basic Regulation.  

Article 2 of Regulation 428/2005 was consequently annulled to the extent to which the 
anti-dumping  duty  imposed  on  exports  into  the  European  Community  of  goods 
produced  and  exported  by  Huvis  exceeded  that  which  would  be  applicable  if  the 
method applied in the original investigation had been used. 

It is recognised by the Courts (9) that, in cases where a proceeding consists of several 
steps, the annulment of one of these steps does not annul the complete proceeding. The 
anti-dumping  proceeding 
is  an  example  of  such  a  multi-step  proceeding. 
Consequently, the annulment of parts of the definitive anti-dumping Regulation does 
not imply the annulment of the entire procedure prior to the adoption of the Regulation 
in question. On the other hand, according to Article 233 of the Treaty establishing the 
European  Community,  the  Community  institutions  are  obliged  to  comply  with  the 
Judgment of the Courts of the European Communities. Accordingly, the Community 
Institutions,  in  so  complying  with  the  Judgment,  have  the  possibility  to  remedy  the 
aspects  of  the  contested  Regulation  which  led  to  its  annulment,  while  leaving 
unchanged the uncontested parts which are not affected by the Judgment (10).  

This Regulation seeks to correct the aspects  of  the  Regulation  428/2005  found  to  be 
inconsistent with the basic Regulation, and which thus led to the annulment of parts of 
that Regulation. It also draws, regarding exporters in the Republic of Korea that were 
willing  to  co-operate  in  the  investigation  that  led  to  Regulation  428/2005,  the 
consequences  from  Art.  9(6)  of  the  Basic  Regulation.  All  other  findings  made  in 
Regulation 428/2005, which were not contested within the time limits for a challenge 
and  thus  were  not  considered  by  the  CFI  and  did  not  lead  to  the  annulment  of  the 
contested Regulation, remain valid.  

(9) 

Therefore,  in  accordance  with  Article  233  of  the  Treaty  establishing  the  European 
Community, the anti-dumping duty rate for Huvis was re-calculated on the basis of the 
judgment of the CFI.  

B. NEW ASSESSMENT OF THE FINDINGS BASED ON THE JUDGMENT OF THE 
CFI 

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OJ C 193, 6.8.2005, p.38. 
OJ C 209, 15.8.2008, p.44. 
IPS v Council [1998] ECR II-3939. 
Case C-458/98 P IPS v Council [2000] ECR I-08147. 

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(10) 

In this Regulation, the aspect of the judgment that is addressed is the calculation of the 
dumping  margin,  more  specifically  the  calculation  of  the  adjustment  made  to  the 
normal value for differences between the export price and the normal value in import 
charges in accordance with Article 2(10)(b) of the basic Regulation.  

(11)  As  outlined  in  recitals  (127)  and  (128)  of  the  Regulation  428/2005,  different 
methodologies  were  used  to  calculate  the  adjustment  on  the  normal  value  in  the 
original investigation on the one hand and in the above mentioned interim review on 
the other hand.  

(12)  Without  ruling  on  the  legality  as  such  of  the  method  used  in  the  interim  review  to 
calculate  the  above-mentioned  adjustment,  the  CFI  in  its  Judgment  found  that  the 
Community  Institutions  had  not  demonstrated  the  existence  of  a  change  in 
circumstances which could justify a use of a different method from the one used in the 
original investigation, as required by Article 11(9) of the basic Regulation. It therefore 
annulled  Article  2  of  Council  Regulation  428/2005  to  the  extent  to  which  the  anti-
dumping  duty  imposed  on  exports  into  the  Community  of  goods  produced  and 
exported by Huvis exceeded that which would be applicable if the method, used in the 
initial investigation, had been used to calculate the adjustment to the normal value for 
import charges. 

(13)  Therefore, the adjustment to the normal value for import duties was re-calculated on 

the basis of the method used in the original investigation.  

(14)  The  comparison  of  the  thus  calculated  weighted  average  normal  value  with  the 
weighted average export price as found during the interim review by product type on 
an  ex-factory  basis  showed  the  existence  of  dumping.  The  dumping  margin 
established,  expressed  as  a  percentage  of  the  CIF  import  price  at  the  Community 
frontier, duty unpaid is 3.9%. 

(15)  The  individual  rate  calculated  for  Huvis had  formed  part  of  the  basis  for  calculating 
the  weighted  average  duty  that  should  apply  to  non-sampled  cooperating  Korean 
exporters.  Therefore  the  dumping  margin  for  cooperating  companies  not  included  in 
the  sample  was  recalculated.  The  new  dumping  margin  for  cooperating  exporting 
producers  not  included  in  the  sample  established  on  the  basis  of  a  weighted  average 
dumping margin is 4.4%.  

(16)  One  company,  Woongjin  Chemical  Co.,  Ltd.  (formerly  Saehan  Industries  Inc.), 
contacted the Commission and argued that its duty, too, should be adapted. However, 
since  that  company  has  not  asked  for  annulment  of  its  duty  by  the  CFI  its  duty  has 
become definitive. 

C. DISCLOSURE 

(17)  All interested parties concerned by the implementation of the judgment were informed 
of  the  proposal  to  revise  the  rates  of  anti-dumping  duty  applicable  to  Huvis 
Corporation  and  the  non-sampled  co-operating  companies.  They  were  also  granted  a 
period within which they could make representations subsequent to this disclosure in 
accordance  with  the  provisions  of  the  basic  Regulation.  Comments  were  taken  into 
consideration where sufficiently substantiated and justified. 

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D. CONCLUSION 

(18)  On  the  basis  of  the  above  the  duty  rate  applicable  to  Huvis  and  the  co-operating 
exporting producers not included in the sample should be amended accordingly. The 
amended  rates  should  apply  retroactively  from  the  date  that  Regulation  (EC)  No 
428/2005 came into effect, 

HAS ADOPTED THIS REGULATION: 

Article 1 

The  table  in  Article  2  of  Regulation  (EC)  No  428/2005  concerning  the  definitive  anti-
dumping duty rates applicable on imports of synthetic staple fibres of polyesters, not carded, 
combed or otherwise processed for spinning, falling within CN code 5503 20 00 originating in 
the Republic of Korea, shall be replaced by the following:  

Company  

Duty (%) 

TARIC additional 
code 

Huvis Corporation 
151-7, Samsung-dong, Gangnam-gu, Seoul 
Woongjin Chemical Co., Ltd.  
(formerly Saehen Industries Inc.) 
254-8, Kongduk-dong, Mapo-ku, Seoul 
Sung Lim Co., Ltd.  
RM 911, Dae-Young Bldg, 44-1; Youido-
Dong 
Youngdungpo-ku, Seoul 
Dongwoo Industry Co. Ltd. 
729, Geochon-Ri, Bongwha-up, Bongwha-
Kun, 
Kyoungsangbuk-do 
East Young Co. Ltd. 
Bongwan #202, Gumi Techno Business 
Center, 267 
Gongdan-Dong, Gumi-si, Kyungbuk 
Estal Industrial Co. 
845 Hokye-dong, Yangsan-City, 
Kyungnam 
Geum Poong Corporation 
62-2, Gachun-Ri, Samnam-Myon, Ulju-
Ku, Ulsan-shi 
Keon Baek Co. Ltd. 
1188-3, Shinsang-Ri, Jinryang-Eup, 
Kyungsan-si, Kyungbuk-do 
Samheung Co. Ltd. 
557-12, Dongkyu-Ri, Pochon-Eub Pochon-
Kun, Kyungki-do 
All other companies  

3,9 

10,6 

0 

4,4 

4,4 

4,4 

4,4 

4,4 

4,4 

10,6 

A151 

A599 

A154 

A608 

A609 

A610 

A611 

A612 

A613 

A999 

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Article 2 

The amounts of duties paid or entered into the accounts pursuant to Article 2 of Regulation 
(EC) No 428/2005 in its initial version and which exceeds those as established on the basis of 
Article 2 of Regulation (EC) No 428/2005 as amended by this Regulation, shall be repaid or 
remitted. 
Repayment and remission shall be requested from national customs authorities in accordance 
with  applicable  customs  legislation.  In  duly  justified  cases,  the  time  limit  of  three  years 
provided  in  Article  236(2)  of  Council  Regulation  (EEC)  No  2913/92  of  12  October  1992 
establishing the Community Customs Code (11) shall be extended for a period of two years. 

This  Regulation  shall  enter  into  force  on  the  day  following  that  of  its  publication  in  the 
Official Journal of the European Union and shall apply retroactively from 18 March 2005. 

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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OJ L 302, 19.10.1992, p.1. 

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LEGISLATIVE FINANCIAL STATEMENT FOR PROPOSALS HAVING A 
BUDGETARY IMPACT EXCLUSIVELY LIMITED TO THE REVENUE SIDE 

1. 

NAME OF THE PROPOSAL: 

Council  Regulation  amending  Regulation  (EC)  No  428/2005  imposing  a  definitive 
anti-dumping  duty  on  imports  of  polyester  staple  fibres  originating  in  the  People's 
Republic  of  China  and  Saudi  Arabia,  amending  Regulation  (EC)  No  2852/2000 
imposing  a  definitive  anti-dumping  duty  on  imports  of  polyester  staple  fibres 
originating in the Republic of Korea and terminating the anti-dumping proceeding in 
respect of such imports originating in Taiwan 

2. 

BUDGET LINES: 

Chapter and Article: 120 

Amount budgeted for the year concerned: 17 655 800 000 

3. 

FINANCIAL IMPACT  

Proposal  has  no  financial  impact  on  expenditure  but  has  a  financial  impact  on 
revenue – the effect is as follows: 

(€ million to one decimal place)  

Budget line 

Revenue12 

12 month period, 
starting 01/01/2009 

2010 

Article 120 

Impact on own resources 

- 3.8 

0 

4. 

ANTI-FRAUD MEASURES 

Not applicable 

5. 

OTHER REMARKS 

The  Court  of  First  Instance  partially  annulled  Article  2  of  Regulation  (EC)  No 
428/2005  insofar  as  it  concerned  one  Korean  exporter  ("the  applicant",  i.e.  Huvis 
Corporation).  As  a  result,  the  definitive  anti-dumping  duty  for  the  applicant 
decreases from 5.7% to 3.9% and the one for the non-sampled exporting producers 

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Regarding  traditional  own  resources  (agricultural  duties,  sugar  levies,  customs  duties)  the  amounts 
indicated must be net amounts, i.e. gross amounts after deduction of 25 % of collection costs 

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from 6% to 4.4%. The new duty rates should be applied retroactively from the date 
of entry into force of the anti-dumping duty, i.e. 18 March 2005. 

The  amount  of  duties  that  were  paid  since  the  imposition  of  the  anti-dumping 
measures  until  the  end  of  January  2009  have  been  estimated  on  the  basis  of 
information extracted from imports statistics database. 

It  appears,  therefore,  that  the  amounts  eligible  for  reimbursement  would  be 
approximately  5.000.000  EUR.  The  reimbursement  should  be  requested  from 
national customs authorities in accordance with the applicable Community customs 
legislation  thus  the  actual  amount  will  be  dependent  on  the  amounts  claimed  by 
importers. 

Based on the above, the final impact on the revenue side of the budget is 3.750.000 
EUR, i.e. the eligible amount minus the 25% collection costs. 

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