Proposal for a COUNCIL REGULATION terminating the partial reopening of the anti-dumping interim review investigation concerning imports of polyethylene terephthalate (PET) film originating in India
Date: 2011-07-20
Institutions: European Commission
Subjects: India, anti-dumping measure, import (EU), plastics

EUROPEAN COMMISSION 

Brussels, 20.7.2011 
COM(2011) 457 final 

2011/0198 (NLE) 

Proposal for a 

COUNCIL REGULATION 

terminating the partial reopening of the anti-dumping interim review investigation 
concerning imports of polyethylene terephthalate (PET) film originating in India  

 
 
  
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

•  Grounds for and objectives of the proposal 

This proposal concerns the application of Council Regulation (EC) No 1225/2009 of 
30  November  2009  on  protection  against  dumped  imports  from  countries  not 
members  of  the  European  Community  ('the  basic  Regulation')  in  the  proceeding 
concerning imports of polyethylene terephthalate (PET) film originating in India.  
On  20  May  2010  an  interim  review  in  the  context  of  this  anti-dumping  proceeding 
was re-opened. The re-opening was limited to the implementation of a judgement of 
the General Court as far as the company MTZ Polyfilms Limited is concerned. 
The objective of this proposal is to terminate this partial reopening. 

•  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 

Definitive measures are in force and were imposed by Council Regulation (EC) No 
1292/2007  of  30  October  2007.  By  Council  Implementing  Regulation  (EU)  No 
469/2011 of 13 May 2011 the measures were lastly amended in view of the expiry of 
the  countervailing  measures  which  had  run  in  parallel  before.  The  Notice  partially 
reopening  an  interim  review  in  the  context  of  this  proceeding  was  published  on 
20 May 2010 (2010/C 131/03). 

•  Consistency with other policies and objectives of the Union 

Not applicable. 

2. 

CONSULTATION  OF 
ASSESSMENT 

INTERESTED 

PARTIES  AND 

IMPACT 

•  Consultation of interested parties 

Interested  parties  concerned  by  the  proceeding  have  had  the  possibility  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. 

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

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

•  Summary of the proposed action 

On  20  May  2010  the  Commission  partially  reopened  anti-dumping  interim  review 
investigation  concerning  imports  of  PET  film  originating,  inter  alia,  in  India  which 
had  resulted  in  an  amendment  of  the  anti-dumping  measures  through  Council 
Regulation  (EC)  No  366/2006.  The  reason  for  this  partial  reopening  was  the 
judgment of the General Court of 17 November 2009 in Case T-143/06 in which the 
General Court annulled the amending Regulation to the extent that it imposes an anti-
dumping duty on MTZ Polyfilms ('the judgment'). The partial reopening, limited to 
MTZ Polyfilms, was in order to implement the above judgment of the General Court 
as  far  as  MTZ  Polyfilms  is  concerned.  Through  the  attached  proposal  for  a 
Regulation,  this  partial  reopening  will  be  terminated  without  reimposing  an  anti-
dumping duty on imports of PET film manufactured by MTZ Polyfilms. 

It is proposed that the Council adopts the attached proposal for a Regulation. 

•  Legal basis 

Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against 
dumped imports from countries not members of the European Community. 

•  Subsidiarity principle 

The  proposal  falls  under  the  exclusive  competence  of  the  European  Union.  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 above-mentioned basic Regulation and leaves 
no scope for national decision. 

Indication  of  how  financial  and  administrative  burden  falling  upon  the  Union, 
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. 

Other means would not be adequate for the following reason: 

Other means would not be adequate because the basic Regulation does not provide 
for alternative options. 

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4. 

BUDGETARY IMPLICATION 

The proposal has no implication for the Union budget. 

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2011/0198 (NLE) 

Proposal for a 

COUNCIL REGULATION 

terminating the partial reopening of the anti-dumping interim review investigation 
concerning imports of polyethylene terephthalate (PET) film originating in India  

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 of 30 November 2009 on protection 
against dumped imports from countries not members of the European Community1 ('the basic 
anti-dumping Regulation') and in particular Article 9 and Article 11(3) and (6) thereof , 

Having  regard  to  the  proposal  submitted  by  the  European  Commission  ('the  Commission') 
after having consulted the Advisory Committee, 

Whereas: 

1. 

PROCEDURE 

1.1. 

Existing measures 

(1) 

By Regulation (EC) No 1676/20012 ('the original regulation'), the Council, imposed a 
definitive  anti-dumping  duty  on  imports  of  polyethylene  terephthalate  (PET)  film 
originating,  inter  alia,  in  India.  On  8  March  2006,  by  Council  Regulation  (EC)  No 
366/20063  ('the  amending  regulation')  and  following  a  partial  interim  review 
investigation, the anti-dumping duty on imports of PET film originating in India was 
amended.  

(2) 

On 6 November 2007, by Council Regulation (EC) No 1292/20074 ('the expiry review 
regulation')  and  following  an  expiry  review,  the  definitive  anti-dumping  duty  on 
imports of PET film originating in India was confirmed.  

(3)  MTZ  Polyfilms  Ltd  ('MTZ  Polyfilms'),  an  Indian  exporting  producer  which 
cooperated  with  the  above  investigations,  obtained  an  individual  duty  rate  by  the 
original regulation. This duty rate was revised by the amending Regulation.  

1 
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3 
4 

OJ L 343, 22.12.2009, p. 51. 
OJ L 227, 23.8.2001, p. 1. 
OJ L 68, 8.3.2006, p. 6. 
OJ L 288, 6.11.2007, p. 1 

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(4) 

(5) 

On 27 February 2006, MTZ Polyfilms lodged an application at the General Court (‘the 
Court of First Instance’ before the entry into force of the Lisbon Treaty) seeking the 
annulment of the amending Regulation in so far as it applies to MTZ Polyfilms5. 

By its judgment of 17 November 2009 in Case T-143/066, the General Court annulled 
the amending Regulation to the extent that it imposes an anti-dumping duty on MTZ 
Polyfilms ('the judgment'). The General Court found that the amending regulation was 
adopted  on  an  incorrect  legal  basis.  It  considered,  in  particular,  that  Article  11(3)  of 
the  basic  Regulation  cannot  serve  as  a  legal  basis  allowing  the  Institutions,  when 
determining the export price, not to apply the methodology prescribed by Article 2(8) 
and (9) of the basic Regulation. 

(6) 

On 13 May 2011, by Regulation (EU) No 469/20117, the definitive anti-dumping duty 
on imports of PET film originating in India was amended in view of the expiry of the 
so far parallel countervailing duty on 9 March 2011. 

1.2. 

Partial reopening 

(7) 

(8) 

On  20  May  2010,  a  notice8  was  published  in  the  Official  Journal  of  the  European 
Union.  In  the  notice,  parties  were  informed  that,  in  view  of  the  judgment  of  the 
General Court mentioned in recital (5) above, imports into the European Union of PET 
film  manufactured  by  MTZ  Polyfilms  are  no  longer  subject  to  the  anti-dumping 
measures  imposed  by  the  amending  regulation  and  the  expiry  review  regulation  and 
that  definitive  anti-dumping  duties paid pursuant to  these  regulations for the product 
concerned manufactured by MTZ Polyfilms should be repaid or remitted.  

The  notice  also  partially  reopened  the  relevant  anti-dumping  interim  review 
investigation concerning imports of PET film originating, inter alia, in India in order 
to  implement  the  above  judgment  of  the  General  Court  as  far  as  MTZ  Polyfilms  is 
concerned. 

(9)  Moreover,  by  the  same  notice,  MTZ  Polyfilms  was  invited,  should  it  consider  that 
aspects  of  the  findings  which  led  to  the  adoption  of  the  amending  Regulation  other 
than  the  one  mentioned  in  recital  (5)  above  were  no  longer  valid,  to  present  a  duly 
substantiated request for review in accordance with the provisions of Article 11(3) of 
the basic Regulation. 

(10)  The  Commission  officially  advised  MTZ  Polyfilms,  the  representatives  of  the 
exporting  country,  the  other  Indian  exporting  producers  which  cooperated  in  the 
investigation  which  led  to  the  adoption  of  the  amending  regulation  and  the  Union 
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 within the time-limit 
set out in the notice. 

(11)  Representations  were received from two exporting  producers in India (one being the 

party directly concerned, i.e. MTZ Polyfilms) and the Union industry. 

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8 

Case T-143/06 MTZ Polyfilms v Council, ECR 2009, page II-04133. 
European Court reports 2009, page II-04133. 
OJ L 129, 17.5.2011, p. 1. 
OJ C 131, 20.5.2010, p. 3. 

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2. 

IMPLEMENTATION OF THE JUDGMENT 

2.1. 

Preliminary remark 

(12)  As a preliminary remark it is important to note that MTZ Polyfilms did not reply to the 

invitation referred to in recital (9) above.  

2.2. 

Comments of interested parties 

the 

initial 

included 

(13)  MTZ  Polyfilms  argued  that  a  partial  reopening  of  a  review  investigation  is  illegal 
because there is no specific provision in the basic Regulation allowing for a possibility 
to reopen an investigation. The same company also submitted that the Commission's 
reference in the notice referred to in recital (7) above to the judgement in the IPS case 
('IPS  judgement')9  was  erroneous  as  that  judgement  concerned  an  anti-dumping 
proceeding which had been initiated in a different legal framework as under the basic 
Regulation  in  force  at  that  time,  an  anti-dumping  proceeding  consisted  of  several 
investigation  and  all  subsequent  review 
stages  which 
investigations. The IPS judgement would therefore deal with the possibility to open a 
new  investigation  within  the  framework  of  an  ongoing  proceeding.  The  distinction 
between  a  proceeding  and  an  investigation  would  have  been  written  out  of  the  basic 
Regulation in 1995 and, in the present case, the Commission has not initiated a new 
investigation in the framework of a proceeding  but reopened an investigation which, 
according to MTZ Polyfilms, would already have been concluded by the imposition of 
definitive measures. MTZ Polyfilms submitted that the IPS case could not serve as a 
precedent because it was based on Council Regulation (EЕC) No 2423/88 of 11 July 
1988 on protection against dumped or subsidized imports from countries not members 
of  the  European  Economic  Community10  ('the  old  basic  Regulation'),  under  which 
mandatory  deadlines  in  particular  the  maximum  time  for  concluding  a  review 
investigation of 15 months from the date of initiation did not apply yet. It argued that 
in  this  case,  the  15  months  deadline  had  lapsed  soon  after  the  reopening  on  20  May 
2010  since  the  amended  measures  were  imposed  more  than  14  months  after  the 
initiation  of  the  partial  interim  review  investigation.  Finally,  according  to  MTZ 
Polyfilms,  the  judgment  required  no  implementing  measures  since  the  judgement  is 
clear  in  all  material  aspects,  simple  and  without  any  specific  reservation  and/or 
qualification annulling the amending Regulation as far as it concerned imports into the 
Union of PET film manufactured by MTZ Polyfilms.  

(14)  Another  Indian  exporting  producer  of  PET  film,  which  had  cooperated  with  the 
interim review, argued that, as in calculating its dumping margin the Institutions have 
applied  the  same  approach  as  the  one  which  had  been  condemned  by  the  General 
Court  in  its  judgement,  the  Institutions  should  now  also  revise  the  methodology  for 
calculating dumping of this company, resulting in the absence of a dumping margin. 

(15)  The  Union  industry  claimed  that,  now  that  the  General  Court  had  annulled  the 
amending Regulation insofar as it imposes an anti-dumping duty on MTZ Polyfilms, 
the  individual  duty  rate  calculated  and  imposed  in  2001  should  be  re-imposed  as,  in 
the  interim  review,  MTZ  Polyfilms  was  still  found  to  be  dumping  by  a  considerable 

9 
10 

Case T-2/95 Industrie des poudres sphériques (IPS) v Council [1998], ECR, page II-3939. 
OJ L 209, 2.8.1988, p. 1. 

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margin. In this respect, it also pointed at a longstanding pattern of circumvention and 
origin fraud allegedly practiced by the Indian exporters. Moreover, it alleged that there 
is a huge existing overcapacity in India and that in several other major world markets 
trade defence measures are in place against Indian PET film, which would inevitably 
lead  to  greater  import  volumes  on  the  Union  market  of  PET  film  manufactured  by 
MTZ Polyfilms. 

(16)  The  Union  industry  also  called  on  the  Commission  to  ensure  the  registration  of 
imports  as  it  considered  that  the  two  conditions  for  such  registration  laid  down  in 
Article 10(4) of the basic Regulation, would have been met. 

2.3. 

Analysis of comments 

(17) 

In  respect  of  the  alleged  illegality  of  the  re-opening,  it  is  recalled  that  in  its  IPS 
judgement the General Court has recognised that, in cases where a proceeding consists 
of several administrative steps, the annulment of one of those steps does not annul the 
complete proceeding. The anti-dumping proceeding is an example of such a multi-step 
proceeding.  Consequently,  the  annulment  of  the  amending  Regulation  in  relation  to 
one party does not imply the annulment of the entire procedure prior to the adoption of 
that Regulation. Moreover, according to Article 266 of the Treaty on the Functioning 
of  the  European  Union,  the  Union  institutions  are  obliged  to  comply  with  the 
judgment.  This  also  implies  the  possibility  to  remedy  the  aspects  of  the  amending 
Regulation which led to its annulment, while leaving unchanged the uncontested parts 
which  are  not  affected  by  the  Court  of  Justice  judgment  –  as  was  held  in  case  C-
458/98 P11 ('the IPS appeal case'). In the light of the above, the claim that there is no 
legal  basis  for  the  partial  reopening  of  a  review  investigation  was  found  to  be 
unwarranted.  

(18)  The  claim that the introduction of  deadlines to conclude  anti-dumping investigations 
prevents  the  Commission  from  following  the  approach  underlying  the  IPS  case  was 
also found to be unwarranted. It is considered that this deadline is not relevant for the 
implementation of a judgment of the Court of Justice of the European Union. Indeed, 
such deadline only governs the completion of the initial review investigation from the 
date of initiation to the date of definitive action, and does not concern any subsequent 
action that might have to be taken for instance as a result of judicial review. It should 
be noted that the General Court has not handed down any judgments which apply this 
reasoning, as that would make it impossible to finalise any anti-dumping investigation 
which  was  annulled  by  the  General  Court  in  order  to  take  account  of  the  General 
Court's findings (as Article 266 TFEU requires). Indeed, the General Court's judgment 
will always be handed down at a point in time when the deadline for the investigation 
has expired.  

(19)  Concerning  the  claim  of  the  other  Indian  exporting  producer  of  PET  film,  it  is 
reminded  that  the  Court  annulled  the  amending  Regulation  only  to  the  extent  that  it 
imposes an anti-dumping duty on MTZ Polyfilms. As a consequence, the judgement is 
no basis for revisiting the approach and/or calculations with regard to other exporting 
producers. Therefore, this claim has to be rejected. 

11 

Case C-458/98 P Industrie des poudres sphériques (IPS) v Council [2000] ECR, page I-08147. 

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(20)  As concerns the Union industry's claim mentioned in recital (15) above, the reasoning 
in  recital  (17)  above  is  equally  valid,  i.e.  case  law  has  established  that,  if  the  Court 
judges that an illegality has taken place, the Commission can resume an investigation 
procedure  at  the  point  just  before  the  illegality  occurred.  Therefore,  there  is  no 
immediate  need  to  resort  to  previously  established  data,  as  argued  by  the  Union 
industry. 

(21)  As  concerns  the  Union  industry's  request  for  registration  of  imports,  based  on  the 
information  in  the  request  and  according  to  the  statistical  data  available  to  the 
Commission it was concluded that the condition mentioned in Article 10(4)(b) of the 
basic Regulation, i.e. a substantial rise in the imports concerned, was not met (see also 
recital (24) below). The request for registration was therefore rejected. 

2.4. 

Investigation 

(22)  As  mentioned  in  recital  (5)  above,  the  General  Court  annulled  the  amending 
Regulation as far as MTZ Polyfilms is concerned as it considered that Article 11(3) of 
the  basic  Regulation  cannot  serve  as  a  legal  basis  allowing  the  Institutions,  when 
determining  the  export  price,  to  depart  from  the  methodology  prescribed  by  Article 
2(8)  and  (9)  of  the  basic  Regulation.  It  is  also  noted  that  all  findings  in  the  review 
regulation, other than the ones which the General Court found to be erroneous, remain 
formally  valid.  This  applies,  in  particular,  to  the  finding  that  there  were  significant 
changes  in  circumstances  justifying  an  amendment  to  the  anti-dumping  duty 
applicable  to  MTZ  Polyfilms.  Therefore,  this  aspect  of  the  review  was  not  re-
investigated  in  the  context  of  the  current  procedure.  During  the  review  investigation 
period  ('RIP'),  MTZ  Polyfilms  exported  the  product  concerned  to  the  Union  under  a 
price undertaking and these sales respected the terms of the undertaking, i.e. were at 
prices which were above the agreed minimum prices. For the reasons explained in the 
review  regulation,  it  is  confirmed  that  the  export  prices  to  the  Union  during  the  RIP 
cannot be used to calculate the dumping margin of MTZ Polyfilms.  

(23) 

(24) 

In  view  of  the  above  considerations,  the  current  investigation  was  limited  to  an 
analysis of the facts available to the Institutions regarding the export activities of MTZ 
Polyfilms. In this respect, as the Court of Justice has held in the IPS judgment (already 
referred  to  above),  the  Institutions,  when  resuming  an  anti-dumping  investigation 
following  a  judgment  annulling  a  regulation  imposing  anti-dumping  duties,  are 
entitled to take account of recent information, including information dating from after 
the  original  investigation  period.  It  also  follows  from  that  judgment  that  this 
possibility to take recent information into account applies also to reviews, which is the 
case at hand here. 

It is noted that after the coming into effect of the amending regulation, and according 
to the available statistical information, import volumes of PET film manufactured by 
MTZ  Polyfilms  decreased  strongly  and  even  ceased  as  from  2008.  Furthermore,  the 
Council  notes  that  the  judgment  annulling  the  review  regulation  as  far  as  MTZ 
Polyfilms is concerned was delivered on 17 November 2009. The notice referred to in 
recital  (7),  which  indicated  that  following  the  Court  judgement  the  imports  of  PET 
film  manufactured  by  MTZ  Polyfilms  were  no  longer  subject  to  the  anti-dumping 
measures,  was  published  on  20  May  2010.  This  means  that  for  more  than  one  year 
those imports have only been subject to countervailing and customs duties, and not to 
an anti-dumping duty. In that context, the data gathered on the basis of Article 14(6) of 

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the  basic  Regulation  indicate  that  during  recent  years  no  such  imports  have  taken 
place. 

2.5. 

Conclusion 

(25) 

In the light of all the above-mentioned circumstances, in particular the limited scope of 
the investigation at hand, which, in the light of the General Court judgement, did not 
re-examine  the  findings  on  the  existence  of  changed  circumstances  and  the 
unavailability of a reliable export price, the Council concludes that the recalculation of 
a dumping margin for MTZ Polyfilms and the re-imposition of an anti-dumping duty 
on exports of PET film manufactured by MTZ Polyfilms would be inappropriate. As a 
consequence,  it  is  concluded  that  the  review  investigation  which  was  opened  with  a 
view  to  implementing  the  Court  findings  should  be  terminated  without  reimposing  a 
duty. 

(26)  All  parties  concerned  were  informed  of  the  essential  facts  and  considerations  on  the 
basis of which it was intended to terminate the partial reopening of the anti-dumping 
interim  review  investigation  concerning  imports  of  PET  film  originating  in  India. 
Comments  were  received  from  the  Union  industry  which  reiterated,  as  already 
presented in recital (15) above, that the individual duty rate calculated and imposed in 
2001  should  be  re-imposed  on  MTZ  Polyfilms,  and  expressed  the  view  that  the 
decrease in exports to the Union by MTZ Polyfilms does not mean that in the future 
the  company  is  not  likely  to  engage  in  injurious  dumping.  The  Union  industry  also 
pointed  out  that  the  overall  volume  of  imports  of  PET  film  from  India  had  recently 
increased. The comments in recital (15) have already been addressed in recital (20). As 
regards the likely future behaviour of MTZ Polyfilms, it is considered that the absence 
of any imports from the company for a significant period of time, during which period 
they  were  subject  to  low  duty  rates,  as  explained  in  recital  (24)  above,  sufficiently 
demonstrates that the company is not likely to engage in injurious dumping. Despite 
the  fact  that  recently  imports  from  India  have  increased,  the  imports  from  MTZ 
Polyfilms have remained at zero, 

HAS ADOPTED THIS REGULATION: 

Article 1 

1. The partial reopening of the anti-dumping interim review investigation concerning imports 
of  polyethylene  terephthalate  (PET)  film  originating  in  India  and  manufactured  by  MTZ 
Polyfilms is hereby terminated. 

2. Imports of PET film originating in India and manufactured by MTZ Polyfilms shall not be 
subject to an anti-dumping duty pursuant to this proceeding. 

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

Article 2 

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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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