Council Implementing Regulation (EU) No 474/2011 of 3 May 2011 amending Regulation (EC) No 1425/2006 imposing a definitive anti-dumping duty on imports of certain plastic sacks and bags originating, inter alia, in the People’s Republic of China
Date: 2011-05-03
Institutions: Council of the European Union
Subjects: China, anti-dumping measure, import, originating product, plastics




L_2011131EN.01000201.xml










18.5.2011   


EN


Official Journal of the European Union


L 131/2








            COUNCIL IMPLEMENTING REGULATION (EU) No 474/2011
of 3 May 2011
         
amending Regulation (EC) No 1425/2006 imposing a definitive anti-dumping duty on imports of certain plastic sacks and bags originating, inter alia, in the People’s Republic of China


THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union,


Having regard to Council Regulation (EC) No 1225/2009 on protection against dumped imports from countries not members of the European Community (1) (‘the basic Regulation’), and in particular Articles 13(3), 14(3) and 14(5) thereof,


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

Whereas:
1.   PROCEDURE

1.1.   Existing measures







(1)


By Regulation (EC) No 1425/2006 (2) (‘the original Regulation’), the Council imposed definitive anti-dumping duties on imports into the Union of certain plastic sacks and bags, originating, inter alia, in the People’s Republic of China (‘PRC’). Given the large number of cooperating Chinese exporting producers, a sample of exporting producers was selected and individual duty rates ranging from 4,8 % to 12,8 % were imposed on companies included in the sample, while on other cooperating companies not included in the sample and listed in Annex I to the original Regulation was imposed a duty rate of 8,4 %. A duty rate of 28,8 % (‘residual duty rate’) was imposed on Chinese companies which either did not make themselves known or did not cooperate with the investigation of dumping which covered the period from 1 April 2004 to 31 March 2005 (‘the original investigation’).










(2)


By Regulation (EC) No 189/2009 (3), amending the original Regulation, and in accordance with Article 2 of the original Regulation, three Chinese companies were added to the list of producers from the PRC listed in Annex I.




1.2.   Ex officio initiation







(3)


Prima facie evidence at the disposal of the Commission indicated that, following the imposition of measures, a change in the pattern of trade involving exports from the PRC to the Union took place for which there was insufficient due cause or justification other than the imposition of the duties in force. This change in the pattern of trade appeared to stem from exports to the Union of the product concerned produced by Chinese exporting producers subject to the residual duty rate through a Chinese exporting producer benefiting from a lower duty rate, namely the company Xiamen Xingxia Polymers Co., Ltd (‘Xiamen’) listed in Annex I to the original Regulation.










(4)


Furthermore, the evidence pointed to the fact that the remedial effects of the existing anti-dumping measures on the product concerned were being undermined in terms of prices. There was sufficient prima facie evidence that the imports of the product concerned were at prices well below the non-injurious price established in the original investigation that led to the existing measures.










(5)


Finally, the Commission had sufficient prima facie evidence at its disposal that the prices of the product concerned are dumped in relation to the normal value previously established.










(6)


Having determined, after consulting the Advisory Committee, that sufficient evidence existed for the initiation of an investigation pursuant to Article 13 of the basic Regulation, the Commission adopted Regulation (EU) No 748/2010 (4) initiating an investigation of the alleged circumvention of the anti-dumping measures (‘the initiating Regulation’). Pursuant to Articles 13(3) and 14(5) of the basic Regulation, the Commission, by the initiating Regulation, also directed the customs authorities to register imports of the product concerned declared as having been manufactured by Xiamen under the specific TARIC additional code A981 attributed to them in order to ensure that, should the investigation result in findings of circumvention, anti-dumping duties of an appropriate amount can be levied retroactively from the date of registration of such imports.




1.3.   Investigation







(7)


The Commission officially advised the authorities of the PRC, Xiamen, as well as the companies allegedly having their products exported through Xiamen (‘the other exporting producers’) of the initiation of the investigation and sent questionnaires. Interested parties were given the opportunity to make their views known in writing and to request a hearing within the time limit set in the initiating Regulation. Interested parties were also informed that non-cooperation might lead to the application of Article 18 of the basic Regulation and to findings being made on the basis of the facts available.










(8)


No replies were received from the other exporting producers and an incomplete reply was received from Xiamen.




1.4.   Investigation period







(9)


The investigation period (‘IP’) was the period from 1 January 2009 to 30 June 2010. Data was collected for the period from January 2006 up to the end of the IP to investigate the alleged change in the pattern of trade and the other aspects set out in Article 13 of the basic Regulation.




2.   RESULTS OF THE INVESTIGATION

2.1.   General considerations/degree of cooperation/methodology







(10)


Xiamen submitted an incomplete and partial reply to the questionnaire. The Commission services sent a letter to Xiamen, identifying the deficiencies of its questionnaire reply and requesting complete and coherent information, to which Xiamen did not react. In addition, Xiamen refused a proposed verification of the data at its premises.










(11)


Consequently Xiamen was informed that, under these circumstances, the Commission considers the company as non-cooperating, in accordance with Article 18 of the basic Regulation, and that findings would be based on the facts available. Xiamen was also made aware that the result of the investigation might be less favourable than if it had fully cooperated. Xiamen did not react to this letter.










(12)


In view of the above and given that no statistical data were available to determine export volumes and prices at company level during the IP, findings in respect of the alleged circumvention had to be made on the basis of facts available in accordance with Article 18 of the basic Regulation, namely those based on the evidence received from Member States’ customs authorities and on the non-verified partial reply, submitted by Xiamen, to the questionnaire.




2.2.   Product concerned







(13)


The product concerned is plastic sacks and bags, containing at least 20 % by weight of polyethylene and of sheeting of a thickness not exceeding 100 micrometers (μm), originating in the People’s Republic of China, currently falling within CN codes ex 3923 21 00 , ex 3923 29 10  and ex 3923 29 90  (TARIC codes 3923 21 00 20, 3923 29 10 20, and 3923 29 90 20).




2.3.   Change in the pattern of trade







(14)


In accordance with Article 13(1) of the basic Regulation, the assessment of the existence of circumvention was carried out by analysing whether there was a change in the pattern of trade between individual companies in the PRC and the Union, which stems from a practice, process or work for which there is insufficient due cause or economic justification other than the imposition of the duty, and where there is evidence of injury or that the remedial effects of the duty are being undermined in terms of the prices and/or quantities of the product concerned, and where there is evidence of dumping in relation to the normal values previously established for the like product.










(15)


Given that Eurostat data cannot be used to determine export volumes and prices at company level since only aggregated countrywide data are provided and no other statistical data at company level are available, export volumes and prices reported by Xiamen in its partial questionnaire reply were used.










(16)


According to the information received from Xiamen, sales to the Union increased significantly after the imposition of measures in September 2006. For some periods, the exports doubled, compared to the sampling period used in the original investigation and prices reported were below the average EU target price established during the original investigation.




2.4.   Insufficient due cause or economic justification other than the imposition of anti-dumping duties







(17)


In addition to the increase in sales volume, it was noted that according to the information submitted in the original investigation for the sampling exercise, Xiamen declared that it had no related companies and no production outside its main factory. In its partial reply to the anti-circumvention questionnaire, Xiamen reported that during the IP it outsourced certain production steps, such as colour printing or bagging, and that sometimes it sells raw materials to the contracting companies.










(18)


The partial questionnaire reply confirmed that the contracting companies mentioned by Xiamen are the other exporters which were, according to the prima facie evidence, allegedly channelling exports to the Union. However, the reply also revealed that it is not a matter of an outsourcing arrangement where the ownership of the raw material and the finished goods stay with the company giving the outsourcing order, but goes beyond for the reasons stated below.










(19)


In all cases of sales reported as ‘partly processed’, payment by the European clients was reported as being made not to Xiamen but to the bank accounts of the two companies allegedly involved in channelling. These sales account for more than 20 % of all EU sales in 2009. Moreover, the list of sales transactions submitted by Xiamen reveals diverse invoicing methodologies which differ in alphanumeric structure and length. With regard to sales reported as ‘partly processed’ via one of the two companies, representing the majority of those sales, it appears that the invoice number includes two letters referring to the company name of the company allegedly channelling. Moreover, the two companies are located around 1 000 km away from Xiamen, which puts into question the economic justification of such an arrangement.










(20)


In addition, it cannot be excluded that more sales than those identified in the detailed list of sales transactions submitted by Xiamen are affected by the alleged channelling as, according to production and capacity statistics also submitted by Xiamen, more than 40 % of its production in 2007, 2008 and 2009 were declared as outsourced.










(21)


It was also noted that sales reported as ‘partly processed’ stopped in October 2009, i.e. after the customs authorities of certain Member States refused to apply the individual anti-dumping duty rate of Xiamen to certain imports apparently produced by the other exporting producers.










(22)


The above leads, therefore, to the conclusion that a change in the pattern of trade has taken place following the imposition of measures on the product concerned for which there is no due cause or economic justification other than the avoidance of the residual anti-dumping duty rate in force.




2.4.1.   Undermining the anti-dumping duty’s remedial effect on injury







(23)


The increase of imports declared under the name of Xiamen was significant in terms of quantities. According to its questionnaire reply, Xiamen nearly doubled its sales to the EU in 2007 and 2008, compared to the sales reported during the period of the original investigation, which was mainly due to the involvement of the other exporting producers. The comparison of the average EU target price established during the original investigation and the weighted average export price reported during the IP shows underselling.










(24)


The conclusion is therefore that the practice described above undermines the measures’ remedial effects on injury, both in terms of quantities and prices.




2.4.2.   Evidence of dumping







(25)


Finally, in accordance with Article 13(1) and (2) of the basic Regulation, it was examined whether there was evidence of dumping in relation to the normal value previously established.










(26)


The comparison of the weighted average normal value as established during the original investigation (where normal value was established on the basis of an analogue country, Malaysia) and the weighted average export price during the current IP as reported by Xiamen in its partial questionnaire reply shows a dumping margin exceeding the dumping margin established during the original investigation for non-sampled companies.




3.   MEASURES







(27)


Given the above, and in application of Article 18 of the basic Regulation, it was concluded that a change in the pattern of trade has taken place, in accordance with Article 13(1) of the basic Regulation. By virtue of the second sentence of Article 13(1) of the basic Regulation, the residual anti-dumping duty rate on imports of the product concerned originating in the PRC should therefore be extended to imports of the same product declared as having been manufactured by Xiamen. In practical terms, TARIC additional code A999 should be declared for those imports from the entry into force of this Regulation.










(28)


Furthermore, in order to enable a more detailed monitoring, henceforth, of the trade flows concerning the non-sampled companies, a TARIC additional code will be attributed to each non-sampled company listed in Annex I to the original Regulation.










(29)


In accordance with Articles 13(3) and 14(5) of the basic Regulation, which provide that any extended measure is to apply to imports which entered the Union under registration imposed by the initiating Regulation, duties should be collected on those registered imports consigned from Xiamen.




4.   DISCLOSURE







(30)


Interested parties were informed of the essential facts and considerations on the basis of which the Council intended to extend the residual anti-dumping duty rate in force to Xiamen and were given the opportunity to comment and to be heard. No comments which were of a nature to change the above conclusions were received,




HAS ADOPTED THIS REGULATION:



Article 1

1.   The definitive anti-dumping duty of 28,8 % applicable to ‘all other companies’ imposed by Regulation (EC) No 1425/2006 on imports of certain plastic sacks and bags originating in the People’s Republic of China is hereby extended to imports declared as having been manufactured by XIAMEN XINGXIA POLYMERS CO., LTD.


2.   The table in Article 1(2) of Regulation (EC) No 1425/2006 is hereby replaced by the following table:








‘Country


Company


AD duty rate (%)


TARIC additional code




The People’s Republic of China


Cedo (Shanghai) Limited and Cedo (Shanghai) Household Wrappings, Shanghai


7,4 


A757 




Jinguan (Longhai) Plastics Packing Co., Ltd, Longhai


5,1 


A758 




Sunway Kordis (Shanghai) Ltd and Shanghai Sunway Polysell Ltd, Shanghai


4,8 


A760 




Suzhou Guoxin Group Co., Ltd, Suzhou Guoxin Group Taicang Yihe Import & Export Co., Ltd, Taicang Dongyuan Plastic Co., Ltd and Suzhou Guoxin Group Taicang Giant Packaging Co., Ltd, Taicang


7,8 


A761 




Wuxi Jiayihe Packaging Co., Ltd and Wuxi Bestpac Packaging Co., Ltd, Wuxi


12,8 


A763 




Zhong Shan Qi Yu Plastic Products Co. Ltd, Zhongshan


5,7 


A764 




Huizhou Jun Yang Plastics Co., Ltd, Huizhou


4,8 


A765 




Xinhui Alida Polythene Limited, Xinhui


4,3 


A854 




Companies listed in Annex I


8,4 


See Annex I




All other companies


28,8 


A999 




Thailand


King Pac Industrial Co., Ltd, Chonburi and Dpac Industrial Co., Ltd, Bangkok


14,3 


A767 




Multibax Public Co., Ltd, Chonburi


5,1 


A768 




Naraipak Co. Ltd and Narai Packaging (Thailand) Ltd, Bangkok


10,4 


A769 




Sahachit Watana Plastic Industry Co., Ltd, Bangkok


6,8 


A770 




Thai Plastic Bags Industries Co., Ltd, Nakornpathorn


5,8 


A771 




Companies listed in Annex II


7,9 


A772 




All other companies


14,3 


A999 ’






3.   Annex I to Regulation (EC) No 1425/2006 is hereby replaced by the text as set out in the Annex to this Regulation.



Article 2

1.   The duty extended by Article 1 shall be collected on imports registered in accordance with Article 2 of Regulation (EU) No 748/2010.


2.   The provisions in force concerning customs duties shall apply.



Article 3
Customs authorities are hereby directed to discontinue the registration of imports, established in accordance with Article 2 of Regulation (EU) No 748/2010.


Article 4
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Union. However, Article 2 shall apply from the day of entry into force of Regulation (EU) No 748/2010.




This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 3 May 2011.


For the Council


The President


               MARTONYI J.





(1)  
            OJ L 343, 22.12.2009, p. 51.

(2)  
            OJ L 270, 29.9.2006, p. 4.

(3)  
            OJ L 67, 12.3.2009, p. 5.

(4)  
            OJ L 219, 20.8.2010, p. 1.




ANNEX




                     ‘ANNEX I

CHINESE COOPERATING EXPORTING PRODUCERS NOT SAMPLED








Company


City


TARIC additional code




BAO XIANG PLASTIC BAG MANUFACTURING (SHENZHEN) CO., LTD


Shenzhen


B014 




BEIJING LIANBIN PLASTIC & PRINTING CO., LTD


Beijing


B015 




CHANGLE BEIHAI PLASTIC PRODUCTS CO., LTD


Zhuliu


B016 




CHANGLE UNITE PLASTIC PRODUCTS CO., LTD


Changle


B017 




CHANGLE HUALONG PLASTIC PRODUCTS CO., LTD


Changle


B018 




CHANGLE SANDELI PLASTIC PRODUCTS CO., LTD


Changle


B019 




CHANGLE SHENGDA RUBBER PRODUCTS CO., LTD


Changle


B020 




CHANGZHOU HUAGUANG PLASTIC PRODUCTS CO., LTD


Wujin


B021 




CHEONG FAT PLASTIC BAGS (CHINA) PRINTING FACTORY


Shenzhen


B022 




CHUN HING PLASTIC PACKAGING MANUFACTORY LTD


Hong Kong


B023 




CHUN YIP PLASTICS (SHENZHEN) LIMITED


Shenzhen


B024 




CROWN POLYETHYLENE PRODUCTS (INT’L) LTD


Hong Kong


B025 




DALIAN JINSHIDA PACKING PRODUCTS CO., LTD


Dalian


B026 




DONG GUAN HARBONA PLASTIC & METALS FACTORY CO., LTD


Dongguan


B027 




DONGGUAN CHERRY PLASTIC INDUSTRIAL, LTD


Dongguan


B028 




DONGGUAN FIRSTWAY PLASTIC PRODUCTS CO., LTD


Dongguan


B029 




DONGGUAN MARUMAN PLASTIC PACKAGING COMPANY LIMITED


Dongguan


B030 




DONGGUAN NAN SING PLASTICS LIMITED


Dongguan


B031 




DONGGUAN NOZAWA PLASTIC PRODUCTS CO., LTD


Dongguan


B032 




DONGGUAN RUI LONG PLASTICS FACTORY


Dongguan


B033 




FOSHAN SHUNDE KANGFU PLASTIC PRODUCTS CO., LTD


Shunde


B034 




FU YUEN ENTERPRISES CO.


Hong Kong


B035 




GOLD MINE PLASTIC INDUSTRIAL LIMITED


Jiangmen


B036 




GOOD-IN HOLDINGS LTD


Hong Kong


B037 




HANG LUNG PLASTIC FACTORY (SHENZHEN) LTD


Shenzhen


B038 




HUIYANG KANLUN POLYETHYLENE MANUFACTURE FACTORY


Huizhou


B039 




JIANGMEN CITY XIN HUI HENGLONG PLASTIC LTD


Jiangmen


B040 




JIANGMEN TOPTYPE PLASTIC PRODUCTS CO., LTD


Jiangmen


B041 




JIANGMEN XINHUI FENGZE PLASTIC COMPANY LTD


Jiangmen


B042 




JIANGYIN BRAND POLYTHENE PACKAGING CO., LTD


Jiangyin


B043 




JINAN BAIHE PLASTIC CO., LTD


Jinan


B044 




JINAN CHANGWEI PLASTIC PRODUCTS CO., LTD


Jinan


B045 




JINAN CHENGLIN PLASTIC PRODUCTS COMPANY LTD


Jinan


B046 




JINAN MINFENG PLASTIC CO., LTD


Jinan


B047 




JINYANG PACKING PRODUCTS (WEIFANG) CO., LTD


Qingzhou


B048 




JUXIAN HUACHANG PLASTIC CO., LTD


Liuguanzhuang


B049 




JUXIAN HUAYANG PLASTIC PRODUCTS CO., LTD


Liuguanzhuang


B050 




KIN WAI POLY BAG PRINTING LTD


Hong Kong


B051 




LAIZHOU JINYUAN PLASTICS INDUSTRY & TRADE CO., LTD


Laizhou


B052 




LAIZHOU YUANXINYIE PLASTIC MACHINERY CO., LTD


Laizhou


B053 




LICK SAN PLASTIC BAGS (SHENZHEN) CO., LTD


Shenzhen


B054 




LINQU SHUNXING PLASTIC PRODUCTS CO., LTD


Linqu


B055 




LONGKOU CITY LONGDAN PLASTIC CORPORATION LTD


Longkou


B056 




NEW CARING PLASTIC MANUFACTORY LTD


Jiangmen


B057 




NEW WAY POLYPAK DONGYING CO., LTD


Dongying


B058 




NINGBO HUASEN PLASTHETICS CO., LTD


Ningbo


B059 




NINGBO MARUMAN PACKAGING PRODUCT CO., LTD


Ningbo


B060 




POLY POLYETHYLENE BAGS AND PRINTING CO.


Hong Kong


B061 




QINGDAO NEW LEFU PACKAGING CO., LTD


Qingdao


B062 




QUANZHOU POLYWIN PACKAGING CO., LTD


Nanan


B063 




RALLY PLASTICS CO., LTD ZHONGSHAN


Zhongshan


B064 




RIZHAO XINAO PLASTIC PRODUCTS CO., LTD


Liuguanzhuang


B065 




DONGGUAN SEA LAKE PLASTIC PRODUCTS MANUFACTURING CO., LTD


Dongguan


B066 




SHANGHAI HANHUA PLASTIC PACKAGE PRODUCT CO., LTD


Shanghai


B067 




SHANGHAI HUAYUE PACKAGING PRODUCTS CO., LTD


Shanghai


B068 




SHANGHAI LIQIANG PLASTICS INDUSTRY CO., LTD


Zhangyan


B069 




SHANGHAI MINGYE PLASTICS GOODS COMPANY LIMITED


Shanghai


B070 




SHANGHAI QUTIAN TECHNOLOGY INDUSTRY DEVELOPMENT CO., LTD


Shanghai


B071 




SHANTOU ULTRA DRAGON PLASTICS LTD


Shantou


B072 




SHAOXING YUCI PLASTICS AND BAKELITE PRODUCTS CO., LTD


Shangyu


B073 




SHENG YOUNG INDUSTRIAL (ZHONGSHAN) CO., LTD


Zhongshan


B074 




SUPREME DEVELOPMENT COMPANY LIMITED


Hong Kong


B075 




TAISHING PLASTIC PRODUCTS CO., LTD ZHONGSHAN


Zhongshan


B076 




TIANJIN MINGZE PLASTIC PACKAGING CO., LTD


Tianjin


B077 




UNIVERSAL PLASTIC & METAL MANUFACTURING LIMITED


Hong Kong


B078 




WAI YUEN INDUSTRIAL AND DEVELOPMENT LTD


Hong Kong


B079 




WEIFANG DESHUN PLASTIC PRODUCTS CO., LTD


Changle


B080 




WEIFANG HENGSHENG RUBBER PRODUCTS CO., LTD


Changle


B081 




WEIFANG HONGYUAN PLASTIC PRODUCTS CO., LTD


Changle


B082 




WEIFANG HUASHENG PLASTIC PRODUCTS CO., LTD


Changle


B083 




WEIFANG KANGLE PLASTICS CO., LTD


Changle


B084 




WEIFANG LIFA PLASTIC PACKING CO., LTD


Weifang


B085 




WEIFANG XINLI PLASTIC PRODUCTS CO., LTD


Weifang


B086 




WEIFANG YUANHUA PLASTIC PRODUCTS CO., LTD


Weifang


B087 




WEIFANG YUJIE PLASTIC PRODUCTS CO., LTD


Weifang


B088 




WEIHAI WEIQUAN PLASTIC AND RUBBER PRODUCTS CO., LTD


Weihai


B089 




WINNER BAGS PRODUCT COMPANY (SHENZHEN) LIMITED


Shenzhen


B090 




WUI HING PLASTIC BAGS PRINTING (SHENZHEN) COMPANY LIMITED


Shenzhen


B091 




XIAMEN EGRET PLASTICS CO., LTD


Gaoqi


B092 




XIAMEN GOOD PLASTIC CO., LTD


Xiamen


B109 




XIAMEN RICHIN PLASTIC CO., LTD


Xiamen


B093 




XIAMEN UNITED OVERSEA ENTERPRISES LTD


Xiamen


B094 




XIAMEN XINGYATAI PLASTIC INDUSTRY CO., LTD


Xiamen


B095 




XINTAI CHUNHUI MODIFIED PLASTIC CO., LTD


Xintai


B096 




YANTAI BAGMART PACKAGING CO., LTD


Yantai


B097 




YANTAI LONGQUAN PLASTIC AND RUBBER PRODUCTS CO., LTD


Yantai


B098 




YAU BONG POLYBAGS PRINTING CO., LTD


Hong Kong


B099 




YINKOU FUCHANG PLASTIC PRODUCTS. CO., LTD


Yingkou


B100 




YONGCHANG (CHANGLE) PLASTIC INDUSTRIES CO., LTD


Weifang


B101 




ZHANGJIAGANG YUANHEYI PAPER & PLASTIC COLOR PRINTING & PACKING CO., LTD


Zhangjiagang


B102 




ZHONGSHAN DONGFENG HUNG WAI PLASTIC BAG MFY.


Zhongshan


B103 




ZHONGSHAN HUANGPU TOWN LIHENG METAL & PLASTIC FACTORY


Zhongshan


B104 




ZHUHAI CHINTEC PACKING TECHNOLOGY ENTERPRISE CO., LTD


Zhuhai


B105 




ZIBO WEIJIA PLASTIC PRODUCTS CO., LTD


Zibo


B106 ’