Proposal for a Council Regulation terminating the new exporter review of Regulation (EC) No 192/2007 imposing a definitive anti-dumping duty on imports of certain polyethylene terephthalate originating, inter alia, in Malaysia, re-imposing the duty with regard to imports from one exporter in this country and terminating the registration of these imports
Date: 2009-06-26
Institutions: European Commission
Subjects: Malaysia, anti-dumping duty, countervailing charge, import, import refund, originating product, plastics

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 26.6.2009 
COM(2009) 319 final 

Proposal for a 

COUNCIL REGULATION 

terminating the new exporter review of Regulation (EC) No 192/2007 imposing a 
definitive anti-dumping duty on imports of certain polyethylene terephthalate 
originating, inter alia, in Malaysia, re-imposing the duty with regard to imports from 
one exporter in this country and terminating the registration of these imports 

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EXPLANATORY MEMORANDUM 

1) CONTEXT OF THE PROPOSAL 

  •  Grounds for and objectives of the proposal 

This proposal concerns the application of Council Regulation (EC) No 384/96 of 
22  December  1995  on  protection  against  dumped  imports  from  countries  not 
members  of  the  European  Community,  as  last  amended  by  Council  Regulation 
(EC)  No  2117/2005  of  21  December  2005  (‘the  basic  Regulation’)  in  the 
proceeding concerning imports of polyethylene terephthalate ('PET') originating in 
Malaysia.. 

•  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 192/2007 of 22 February 2007 imposing a definitive 
anti-dumping duty on imports of certain polyethylene terephthalate originating in 
India, Indonesia, Malaysia, the Republic of Korea, Thailand and Taiwan following 
an expiry review and a partial interim review pursuant to Article 11(2) and Article 
11(3) of Regulation (EC) No 384/96. 

  •  Consistency with other policies and objectives of the Union 

Not applicable. 

2) CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

  •  Consultation of interested parties 

Interested parties concerned by the proceeding have had the opportunity to defend 
their  interests  during  the  investigation,  in  line  with  the  provisions  of  the  basic 
Regulation. 

  •  Collection and use of expertise 

  There was no need for external expertise. 

  •  Impact assessment 

This proposal is the result of the implementation of the basic Regulation. 

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

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3) LEGAL ELEMENTS OF THE PROPOSAL 

  •  Summary of the proposed action 

On  6  November  2008  the  Commission  initiated  a  ‘new  exporter’  review  of 
Council Regulation (EC) No 192/2007 imposing a definitive anti-dumping duty on 
imports  of  certain  polyethylene  terephthalate  originating,  inter  alia,  in  Malaysia, 
repealed  the  duty  with  regard  to  imports  from  one  exporter  in  this  country  and 
made  these  imports  subject  to  registration.  The  company  concerned  is  Eastman 
Chemical Malaysia SDN.BHD ('the applicant') 

During  the  proceeding,  Eastman  Chemical  (Malaysia)  SDN.BHD  decided  to 
withdraw  their  application  for  the  ‘new  exporter’  review.  It  was  therefore  not 
possible to establish the applicant's individual dumping margin and duty rate.  

In view of the above, the residual duty defined in the original investigation should 
be reimposed on the applicant. 

It  is  therefore  proposed  that  the  Council  adopts  the  attached  proposal  for  a 
Regulation,  which  should  be  published  in  the  Official  Journal  of  the  European 
Union by 4 August 2009 at the latest. 

  •  Legal basis 

Council Regulation (EC) No 384/96 of 22 December 1995 on protection against 
dumped imports from countries not members of the European Community, as last 
amended  by  Council  Regulation  (EC)  No  2117/2005  and  in  particular  article  11 
(4) thereof.  

  •  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  basic  Regulation  and  leaves  no  scope  for 

national decision. 

Indication  of  how  financial  and  administrative  burden  falling  upon 
the 
Community,  national  governments,  regional  and  local  authorities,  economic 
operators  and  citizens  is  minimized  and  proportionate  to  the  objective  of  the 
proposal is not applicable. 

  •  Choice of instruments 

  Proposed instruments: regulation. 

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  Other means would not be adequate because the basic Regulation does not foresee 

alternative options. 

4) BUDGETARY IMPLICATION 

  The proposal has no implication for the Community budget. 

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Proposal for a 

COUNCIL REGULATION 

terminating the new exporter review of Regulation (EC) No 192/2007 imposing a 
definitive anti-dumping duty on imports of certain polyethylene terephthalate 
originating, inter alia, in Malaysia, re-imposing the duty with regard to imports from 
one exporter in this country and terminating the registration of these imports 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community,  

Having  regard  to  Council  Regulation  (EC)  No  384/96  of  22  December  1995  on  protection 
against dumped imports from countries not members of the European Community1 (the 'basic 
Regulation') and in particular Article 11(4) thereof,  

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

Whereas: 

A. PREVIOUS PROCEDURE 

(1) 

By  Regulation  (EC)  No  192/20072  the  Council,  following  an  expiry  review 
investigation imposed a definitive anti-dumping duty on imports into the Community 
of certain polyethylene terephthalate ('PET'), originating, inter alia, in Malaysia. The 
measures in force consist of a duty rate of 160,1 EUR/tonne, with the exception of the 
companies expressly mentioned which are subject to individual duty rates. Pursuant to 
the  same  Regulation,  anti-dumping  duties  were  also  imposed  on  imports  of  PET 
originating  in  India,  Indonesia,  the  Republic  of  Korea,  Thailand  and  Taiwan.  The 
'original 
original  measures  were 
investigation'), by Regulation (EC) No 2604/20003. 

following  an 

investigation 

imposed, 

(the 

B. PRESENT PROCEDURE 

1. 

(2) 

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Request for a review 

The Commission subsequently received a request to initiate a 'new exporter' review of 
Regulation  No  192/2007,  pursuant  to  Article  11(4)  of  the  basic  Regulation,  from 
Eastman Chemical (Malaysia) SDN.BHD (the 'applicant'). The applicant alleged that it 
did  not  export  certain  PET  to  the  Community  during  the  period  of  investigation  on 

OJ L 56, 6.3.1996, p. 1.  
OJ L 59, 27.2.2007, p. 1. (BG, ES, CS, DA, DE, ET, EL, EN, FR, IT, LV, LT, HU, NL, PL, PT, RO, SK, 
SL, FI, SV) ; OJ L 352M, 31.12.2008, p. 972 (MT) 
OJ L 301, 30.11.2000, p. 21. Regulation as last amended by Regulation (EC) No 1646/2005 (OJ L 266, 
11.10.2005, p. 10). 

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which the anti-dumping measures were based, i.e. the period from 1 October 1998 to 
30 September 1999 (the 'original investigation period') and that it is not related to any 
of  the  exporting  producers  of  certain  PET  which  are  subject  to  the  above  mentioned 
anti-dumping  measures.  The  applicant  further  alleged  that  it  began  exporting  certain 
PET to the Community after the end of the original investigation period. 

Initiation of a 'new exporter' review 

The  Commission  examined  the  prima  facie  evidence  submitted  by  the  applicant  and 
considered it sufficient to justify the initiation of a review in accordance with Article 
11(4) of the basic Regulation. After consultation of the Advisory Committee and after 
the  Community  industry  concerned  had  been  given  the  opportunity  to  comment,  the 
Commission  initiated,  by  Regulation  (EC)  No  1082/20084,  a  review  of  Regulation 
(EC) No 192/2007 with regard to the applicant. 

Pursuant  to  Article  2  of  Commission  Regulation  (EC)  No  1082/2008,  the  anti-
dumping  duty  of  EUR  160,1/tonne  imposed  by  Regulation  (EC)  No  192/2007  on 
imports  of  certain  PET  produced  and  sold  for  export  to  the  Community  by  the 
applicant  was  repealed.  Simultaneously,  pursuant  to  Article  14(5)  of  the  basic 
Regulation,  customs  authorities  were  directed  to  take  appropriate  steps  to  register 
these imports. 

Product concerned 

The  product  concerned  by  the  current  review  is  the  same  as  that  in  the  original 
investigation,  i.e.  PET  having  a  viscosity  number  of  78  ml/g  or  higher,  according  to 
the ISO Standard 1628-5, falling within CN Code 3907 60 20. 

Parties concerned 

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

The Commission sent a questionnaire to the applicant and received a reply within the 
deadline set for that purpose. The Commission sought to verify all the information it 
deemed  necessary  for  the  determination  of  dumping,  and  a  verification  visit  was 
carried out at the premises of the applicant. 

Review investigation period 

The  new  exporter  review  investigation  period  covered  the  period  from  01  October 
2007 to 30 September 2008.  

2. 

(3) 

(4) 

3. 

(5) 

4. 

(6) 

(7) 

5. 

(8) 

C. WITHDRAWAL OF THE REQUEST FOR A NEW EXPORTER REVIEW 

4 

OJ L 296, 5.11.2008, p. 5 

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(9) 

By a letter dated 22 April 2009 addressed to the Commission, the applicant formally 
withdrew  its  request  for  a  'new  exporter'  review  without  providing  any  specific 
justification. 

(10)  Under  these  circumstances,  the  Commission  could  not  establish  the  applicant's 
individual dumping margin and duty rate. It was therefore concluded that imports into 
the Community of PET having a viscosity number of 78 ml/g or higher, according to 
ISO Standard 1628-5 falling within CN code 3907 60 20 originating in Malaysia and 
produced  and  sold  for  export  to  the  Community  by  Eastman  Chemical  (Malaysia) 
SDN.BHD  should  be  subject  to  the  country-wide  duty  applicable  to  'all  other 
companies'  in  Malaysia  (EUR  160,1  per  tonne)  imposed  by  Council  Regulation  No 
192/2007 and that that rate of duty should therefore be re-imposed. 

D. RETROACTIVE LEVYING OF THE ANTI-DUMPING DUTY 

(11) 

In  the  light  of  the  above  findings,  the  anti-dumping  duty  applicable  to  Eastman 
Chemical  (Malaysia)  SDN.BHD  shall  be  levied  retroactively  from  the  date  of 
initiation  of  the  review  on  imports  of  the  product  concerned  which  have  been  made 
subject  to  registration  pursuant  to  Article  3  of  Commission  Regulation  (EC)  No 
1082/2008. 

E. DISCLOSURE AND DURATION OF THE MEASURES 

(12)  The applicant and the other parties concerned were informed of the essential facts and 
considerations  on  the  basis  of  which  it  was  intended  to  re-impose  a  definitive  anti-
dumping  duty  on  imports  of  certain  PET  originating,  inter  alia,  in  Malaysia  and 
produced  and  sold  for  export  to  the  Community  by  Eastman  Chemical  Malaysia 
SDN.BHD and to levy this duty retroactively on imports made subject to registration. 
Their comments were considered and taken into account as appropriate. 

(13)  This  review  does  not  affect  the  date  on  which  the  measures  imposed  by  Council 
Regulation  (EC)  No  192/2007  will  expire  pursuant  to  Article  11(2)  of  the  basic 
Regulation, 

HAS ADOPTED THIS REGULATION: 

Article 1 

1. The new exporter review initiated by Regulation (EC) No 1082/2008 is hereby terminated 
and the anti-dumping duty applicable according to Article 1 of Regulation (EC) No 192/2007 
to  'all  other  companies'  in  Malaysia  is  hereby  imposed  on  imports  identified  in  Article  1  of 
Regulation (EC) No 1082/2008.  

2. The anti-dumping duty applicable according to Article 1 of Regulation (EC) No 192/2007 
to 'all other companies' in Malaysia is hereby levied with effect from 6 November 2008 on 
imports of certain polyethylene terephthalate which have been registered pursuant to Article 3 
of Regulation (EC) No 1082/2008. 
3. The customs authorities are hereby directed to cease the registration of imports carried out 
pursuant to Article 3 of Regulation (EC) No 1082/2008. 
4. Unless otherwise specified, the provisions in force concerning customs duties shall apply. 

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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 2 

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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