Notice of initiation of an anti-subsidy proceeding concerning imports of polyester staple fibres originating in the People’s Republic of China, India and Vietnam
Date: 2013-12-19
Institutions: European Commission
Subjects: China, India, Viet Nam, anti-subsidy proceeding, complaint to the Commission, import (EU), originating product, plastics








C_2013372EN.01003101.xml










19.12.2013   


EN


Official Journal of the European Union


C 372/31





Notice of initiation of an anti-subsidy proceeding concerning imports of polyester staple fibres originating in the People’s Republic of China, India and Vietnam
(2013/C 372/12)
The European Commission (‘the Commission’) has received a complaint pursuant to Article 10 of Council Regulation (EC) No 597/2009 of 11 June 2009 on protection against subsidised imports from countries not members of the European Community (1) (‘the basic Regulation’), alleging that imports of polyester staple fibres (‘PSF’), originating in the People’s Republic of China, India and Vietnam are being subsidised and are thereby causing material injury to the Union industry.
1.   Complaint

The complaint was lodged on 4 November 2013 by the European Man-made Fibres Association (‘CIRFS’) (‘the complainant’) on behalf of producers representing more than 25 % of the total Union production of PSF.
2.   Product under investigation

The product subject to this investigation is synthetic staple fibres of polyesters, not carded, combed or otherwise processed for spinning (‘the product under investigation’).
3.   Allegation of subsidisation

The product allegedly being subsidised is the product under investigation, originating in the People’s Republic of China, India and Vietnam (‘the countries concerned’), currently falling within CN code 5503 20 00. This CN code is given for information only.
The prima facie evidence provided by the complainant shows that the producers of the product concerned from the People’s Republic of China, India and Vietnam have benefited from a number of subsidies granted by the Governments of the People’s Republic of China, India and Vietnam, respectively.
In the case of the People’s Republic of China, the subsidies consist, inter alia, of the government provision of input products for less than adequate remuneration and the government entrustment and direction of private suppliers, preferential lending to the PSF industry by state-owned banks and the government entrustment and direction of private banks, development grants and interest subsidies for the textile sector, the ‘Go Global’ Special Fund, the Trade Promotion Fund for Agriculture, Light Industry and Textile Products, income tax exemptions on foreign (Investment) Enterprises, income tax exemptions on dividend income between qualified resident enterprises, income tax reductions for recognised high and new technology enterprises, income tax reductions in special economic zones, income tax reductions for export-oriented enterprises, tax credits of up to 40 % of the purchase value of domestically produced equipment, tariffs and/or value-added tax exemptions on imported equipment and on purchases of domestically manufactured equipment, government provision of land-use rights, government provision of electricity and water. In addition, the subsidies consist of, inter alia, tax (and other) exemptions in development zones in the Province of Jiangsu, tax incentives and preferential rents in the City of Changzhou, export incentives and technology grants in the Province of Zhejiang, tax and duty incentives in development zones, export incentives, reimbursement of legal fees, foreign trade activities (special) funds programme, loan interest subsidies to support technological innovation projects in the Province of Guangdong, preferential tax rates in development zones and preferential infrastructure, lending and tax policies for export-oriented enterprises in the Province of Shanghai.
In the case of India, the subsidies consist, inter alia, of duty credits under the Focus Market Scheme and the Focus Product Scheme, the Advance Authorisation Scheme, the Duty Entitlement Passbook Scheme, the Duty Drawback Scheme, the Export Promotion Capital Goods Scheme, tax and duty exemptions and reductions in Export Oriented Units and the Special Economic Zones, the Export Credit Scheme, the Income Tax Exemption Scheme, the Incremental Exports Incentivisation Scheme, the Duty free import authorisation scheme, the Market development assistance scheme and loan guarantees. In addition, the subsidies consist of, inter alia, the Capital Investment Incentive Scheme of the Government of Gujarat, the Gujarat Sales Tax Incentive Scheme and Electricity Duty Exemption Scheme, West Bengal Subsidy Schemes — incentives and tax concessions, including grants and the exemption of sales tax, the Maharashtra Electricity Duty Exemption Scheme.
In the case of Vietnam, the subsidies consist, inter alia, of government provision of goods to the PSF industry by state-owned enterprises for less than adequate remuneration, government incentives (in the form of tax and duty exemptions and preferential loans) in the Dinh Vu Industrial Zone, government preferential lending to the PSF industry from state-owned banks and the government entrustment and direction of private banks, government provision of land for less than adequate remuneration and exemptions or reductions from land and water rents under, inter alia, Decree No 142/2005/ND-CP, interest rate subsidies under, inter alia, Decision No 131/2009-QD-TTg, preferential income tax rates, tax exemptions or reduction under, inter alia, Decree No 164/2003/ND-CP amended and supplemented by Decrees No 152/2004/ND-CP and No 149/2005/ND-CP, tax and rent exemptions/reductions, government loans, interest rate supports, export credit preferences in Hi-Tech parks, industrial zones and industrial parks under, inter alia, Decisions No 53/2004/QD-TTg and Decree No 99/2003/ND-CP, income tax incentives under, inter alia, Decree 124-2008-ND-CP, exemptions from, and reimbursements of, import tax and export tax under, inter alia, Law No 45/2005/QH-11 and Decree No 87/2010/ND-CP. In addition, the subsidies consist of, inter alia, the following benefits under Decree No 51/1999/ND-CP, amended and supplemented by Decree No 35/2002/ND-CP, Decision No 55/2001/QD-TTg, Law No 59-2005-QH11 and Law on Foreign Investment in Vietnam, Decree No 61/2010/ND-CP, Decisions No 1483/QD-TTg and Decision No 12/2011: Import Duty Exemptions on raw materials and supplies, Tax and Duty Exemptions, accelerated depreciation, and preferential credit for foreign investment, Corporate Income Tax Incentives, preferential loans, grants, guarantees, tax benefits and provision of goods and services to supported industries for less than adequate remuneration, domestic investment support through e.g. export credits, provision of infrastructure and services for less than adequate remuneration, exemption from land use taxes and rents.
The Commission reserves the right to investigate other subsidies which may be revealed during the course of the investigation.
The prima facie evidence provided by the complainant shows that the above schemes are subsidies since they involve a financial contribution from the Governments of the People's Republic of China, India and Vietnam or other regional governments (including public bodies) and confer a benefit to the recipients. They are alleged to be contingent upon export performance and/or the use of domestic over imported goods and/or are limited to certain sectors and/or types of enterprises and/or locations, and are therefore specific and countervailable.
4.   Allegation of injury and causation

The complainant has provided evidence that imports of the product under investigation from the countries concerned have increased overall in absolute terms and have increased in terms of market share.
The prima facie evidence provided by the complainant shows that the import volume and the prices of the product under investigation have had, among other consequences, a negative impact on the level of prices charged and the market share held by the Union industry, resulting in substantial adverse effects on the overall performance and the financial situation of the Union industry.
5.   Procedure

Having determined, after consulting the Advisory Committee, that the complaint has been lodged by or on behalf of the Union industry and that there is sufficient evidence to justify the initiation of a proceeding, the Commission hereby initiates an investigation pursuant to Article 10 of the basic Regulation.
The investigation will determine whether the product under investigation originating in the countries concerned is being subsidised and whether these subsidised imports have caused injury to the Union industry. If the conclusions are affirmative, the investigation will examine whether the imposition of measures would not be against the Union interest.
The Governments of the People’s Republic of China, India and Vietnam have been invited for consultations.
5.1.   
Procedure for the determination of subsidisation


Exporting producers (2) of the product under investigation from the countries concerned and the authorities of the countries concerned are invited to participate in the Commission investigation.
5.1.1.   Investigating exporting producers

5.1.1.1.   Procedure for selecting exporting producers to be investigated in the countries concerned

(a)   Sampling
In view of the potentially large number of exporting producers in the People’s Republic of China, India and Vietnam involved in this proceeding and in order to complete the investigation within the statutory time limits, the Commission may limit the exporting producers to be investigated to a reasonable number by selecting a sample (this process is also referred to as ‘sampling’). The sampling will be carried out in accordance with Article 27 of the basic Regulation.
In order to enable the Commission to decide whether sampling is necessary, and if so, to select a sample, all exporting producers, or representatives acting on their behalf, are hereby requested to make themselves known to the Commission. These parties have to do so within 15 days of the date of publication of this notice in the Official Journal of the European Union, unless otherwise specified, by providing the Commission with information on their company(ies) requested in Annex I to this notice.
In order to obtain information it deems necessary for the selection of the sample of exporting producers, the Commission will also contact the authorities of the countries concerned and may contact any known associations of exporting producers.
All interested parties wishing to submit any other relevant information regarding the selection of the sample, excluding the information requested above, must do so within 21 days of the publication of this notice in the Official Journal of the European Union, unless otherwise specified.
If a sample is necessary, the exporting producers may be selected based on the largest representative volume of exports to the Union which can reasonably be investigated within the time available. All known exporting producers, the authorities of the countries concerned and associations of exporting producers will be notified by the Commission, via the authorities of the countries concerned if appropriate, of the companies selected to be in the sample.
In order to obtain information it deems necessary for its investigation with regard to exporting producers, the Commission will send questionnaires to the exporting producers selected to be in the sample, to any known association of exporting producers, and to the authorities of the countries concerned.
All exporting producers, selected to be in the sample, and the authorities of the countries concerned will have to submit a completed questionnaire within 37 days from the date of notification of the sample selection, unless otherwise specified.
The questionnaire for exporting producers will request information on, inter alia, the structure of the exporting producer's company(ies), the activities of the company(ies) in relation to the product under investigation, the total sales of the company(ies) and of the product under investigation and the amount of financial contribution and benefit from the alleged subsidies or subsidy programmes and any other similar or closely connected measures to these programmes.
The questionnaire for the authorities will request information on, inter alia, the alleged subsidies or subsidy programme(s), the authorities responsible for their operation, the manner and functioning of such operation, the legal basis, the eligibility criteria and other terms and conditions, the recipients and the amount of financial contribution and benefit conferred.
Without prejudice to the application of Article 28 of the basic Regulation companies that have agreed to their possible inclusion in the sample but are not selected to be in the sample will be considered to be cooperating (‘non-sampled cooperating exporting producers’). Without prejudice to section (b) below, the countervailing duty that may be applied to imports from non-sampled cooperating exporting producers will not exceed the weighted average margin of subsidisation established for the exporting producers in the sample (3).
(b)   Individual subsidy margin for companies not included in the sample
Non-sampled cooperating exporting producers may request, pursuant to Article 27(3) of the basic Regulation, that the Commission establish their individual subsidy margins. The exporting producers wishing to claim an individual subsidy margin must request a questionnaire and return it duly completed within 37 days of the date of notification of the sample selection, unless otherwise specified.
However, exporting producers claiming an individual subsidy margin should be aware that the Commission may nonetheless decide not to determine their individual subsidy margin if, for instance, the number of exporting producers is so large that such determination would be unduly burdensome and would prevent the timely completion of the investigation.
5.1.2.   Investigating unrelated importers
 (4)
 (5)

Unrelated importers of the product under investigation from the People’s Republic of China, India and Vietnam to the Union are invited to participate in this investigation.
In view of the potentially large number of unrelated importers involved in this proceeding and in order to complete the investigation within the statutory time limits, the Commission may limit to a reasonable number the unrelated importers that will be investigated by selecting a sample (this process is also referred to as ‘sampling’). The sampling will be carried out in accordance with Article 27 of the basic Regulation.
In order to enable the Commission to decide whether sampling is necessary and, if so, to select a sample, all unrelated importers, or representatives acting on their behalf, are hereby requested to make themselves known to the Commission. These parties must do so within 15 days of the date of publication of this notice in the Official Journal of the European Union, unless otherwise specified, by providing the Commission with the information on their company(ies) requested in Annex II to this notice.
In order to obtain information it deems necessary for the selection of the sample of unrelated importers, the Commission may also contact any known associations of importers.
All interested parties wishing to submit any other relevant information regarding the selection of the sample, excluding the information requested above, must do so within 21 days of the publication of this notice in the Official Journal of the European Union, unless otherwise specified.
If a sample is necessary, the importers may be selected based on the largest representative volume of sales of the product under investigation in the Union which can reasonably be investigated within the time available. All known unrelated importers and associations of importers will be notified by the Commission of the companies selected to be in the sample.
In order to obtain information it deems necessary for its investigation, the Commission will send questionnaires to the sampled unrelated importers and to any known association of importers. These parties must submit a completed questionnaire within 37 days from the date of the notification of the sample selection, unless otherwise specified.
The questionnaire will request information on, inter alia, the structure of their company(ies), the activities of the company(ies) in relation to the product under investigation and the sales of the product under investigation.
5.2.   
Procedure for the determination of injury and investigating Union producers


A determination of injury is based on positive evidence and involves an objective examination of the volume of the subsidised imports, their effect on prices on the Union market and the consequent impact of those imports on the Union industry. In order to establish whether the Union industry is materially injured, Union producers of the product under investigation are invited to participate in the Commission investigation.
5.2.1.   Investigating Union producers

In view of the large number of Union producers involved in this proceeding and in order to complete the investigation within the statutory time limits, the Commission has decided to limit to a reasonable number the Union producers that will be investigated by selecting a sample (this process is also referred to as ‘sampling’). The sampling is carried out in accordance with Article 27 of the basic Regulation.
The Commission has provisionally selected a sample of Union producers. Details can be found in the file for inspection by interested parties. Interested parties are hereby invited to consult the file (for this they should contact the Commission using the contact details provided in section 5.6 below). Other Union producers, or representatives acting on their behalf, that consider that there are reasons why they should be included in the sample must contact the Commission within 15 days of the date of publication of this notice in the Official Journal of the European Union. All interested parties wishing to submit any other relevant information regarding the selection of the sample must do so within 21 days of the publication of this notice in the Official Journal of the European Union, unless otherwise specified.
All known Union producers and/or associations of Union producers will be notified by the Commission of the companies finally selected to be in the sample.
In order to obtain information it deems necessary for its investigation, the Commission will send questionnaires to the sampled Union producers and to any known association of Union producers. These parties must submit a completed questionnaire within 37 days from the date of the notification of the sample selection, unless otherwise specified.
The questionnaire will request information on, inter alia, the structure of their company(ies) and the financial and economic situation of the company(ies).
5.3.   
Procedure for the assessment of Union interest


Should the existence of subsidisation and injury caused thereby be established, a decision will be reached, pursuant to Article 31 of the basic Regulation, as to whether the adoption of anti-subsidy measures would not be against the Union interest. Union producers, importers and their representative associations, users and their representative associations, and representative consumer organisations are invited to make themselves known within 15 days of the date of publication of this notice in the Official Journal of the European Union, unless otherwise specified. In order to participate in the investigation, the representative consumer organisations have to demonstrate, within the same deadline, that there is an objective link between their activities and the product under investigation.
Parties that make themselves known within the above deadline may provide the Commission with information on the Union interest within 37 days of the date of publication of this notice in the Official Journal of the European Union, unless otherwise specified. This information may be provided either in a free format or by completing a questionnaire prepared by the Commission. In any case, information submitted pursuant to Article 31 will only be taken into account if supported by factual evidence at the time of submission.
5.4.   
Other written submissions


Subject to the provisions of this notice, all interested parties are hereby invited to make their views known, submit information and provide supporting evidence. Unless otherwise specified, this information and supporting evidence must reach the Commission within 37 days of the date of publication of this notice in the Official Journal of the European Union.
5.5.   
Possibility to be heard by the Commission investigation services


All interested parties may request to be heard by the Commission investigation services. Any request to be heard should be made in writing and should specify the reasons for the request. For hearings on issues pertaining to the initial stage of the investigation the request must be submitted within 15 days of the date of publication of this notice in the Official Journal of the European Union. Thereafter, a request to be heard must be submitted within the specific deadlines set by the Commission in its communication with the parties.
5.6.   
Instructions for making written submissions and sending completed questionnaires and correspondence


All written submissions, including the information requested in this notice, completed questionnaires and correspondence provided by interested parties for which confidential treatment is requested shall be labelled ‘Limited’ (6).
Interested parties providing ‘Limited’ information are required to furnish non-confidential summaries of it pursuant to Article 29(2) of the basic Regulation, which will be labelled ‘For inspection by interested parties’. These summaries should be sufficiently detailed to permit a reasonable understanding of the substance of the information submitted in confidence. If an interested party providing confidential information does not furnish a non-confidential summary of it in the requested format and quality, such confidential information may be disregarded.
Interested parties are required to make all submissions and requests in electronic format (non-confidential submissions via e-mail, confidential ones on CD-R/DVD), and must indicate the name, address, e-mail address, telephone and fax numbers of the interested party. However, any Powers of Attorney, signed certifications, and any updates thereof, accompanying questionnaire replies must be submitted on paper, i.e. by post or by hand, at the address below. If an interested party cannot provide its submissions and requests in electronic format, it must immediately contact the Commission in compliance with Article 28(2) of the basic Regulation. For further information concerning correspondence with the Commission, interested parties may consult the relevant web page on the website of the Directorate-General for Trade: http://ec.europa.eu/trade/tackling-unfair-trade/trade-defence
Commission address for correspondence:





European Commission




Directorate-General for Trade




Directorate H




Office: N105 08/020




1049 Bruxelles/Brussel




BELGIQUE/BELGIË




Fax +32 22985353
E-mail concerning subsidy issues for the People’s Republic of China and Annex I:
TRADE-PSF-SUBSIDY-CHINA@ec.europa.eu
E-mail concerning subsidy issues for India and Annex I:
TRADE-PSF-SUBSIDY-INDIA@ec.europa.eu
E-mail concerning subsidy issues for Vietnam and Annex I:
TRADE-PSF-SUBSIDY-VIETNAM@ec.europa.eu
E-mail concerning injury and Annex II:
TRADE-PSF-INJURY@ec.europa.eu
6.   Non-cooperation

In cases where any interested party refuses access to or does not provide the necessary information within the time limits, or significantly impedes the investigation, provisional or final findings, affirmative or negative, may be made on the basis of facts available, in accordance with Article 28 of the basic Regulation.
Where it is found that any interested party has supplied false or misleading information, the information may be disregarded and use may be made of facts available.
If an interested party does not cooperate or cooperates only partially and findings are therefore based on facts available in accordance with Article 28 of the basic Regulation, the result may be less favourable to that party than if it had cooperated.
7.   Hearing Officer

Interested parties may request the intervention of the Hearing Officer for the Directorate-General for Trade. The Hearing Officer acts as an interface between the interested parties and the Commission investigation services. The Hearing Officer reviews requests for access to the file, disputes regarding the confidentiality of documents, requests for extension of time limits and requests by third parties to be heard. The Hearing Officer may organise a hearing with an individual interested party and mediate to ensure that the interested parties' rights of defence are being fully exercised.
A request for a hearing with the Hearing Officer should be made in writing and should specify the reasons for the request. For hearings on issues pertaining to the initial stage of the investigation the request must be submitted within 15 days of the date of publication of this notice in the Official Journal of the European Union. Thereafter, a request to be heard must be submitted within specific deadlines set by the Commission in its communication with the parties.
The Hearing Officer will also provide opportunities for a hearing involving parties to take place which would allow different views to be presented and rebuttal arguments offered on issues pertaining, among other things, to subsidisation, injury, causal link and Union interest. Such a hearing would, as a rule, take place at the latest at the end of the fourth week following the disclosure of provisional findings.
For further information and contact details interested parties may consult the Hearing Officer's web pages on DG Trade's website http://ec.europa.eu/commission_2010-2014/degucht/contact/hearing-officer/
8.   Schedule of the investigation

The investigation will be concluded, pursuant to Article 11(9) of the basic Regulation within 13 months of the date of the publication of this notice in the Official Journal of the European Union. In accordance with Article 12(1) of the basic Regulation, provisional measures may be imposed no later than nine months from the publication of this notice in the Official Journal of the European Union.
9.   Processing of personal data

Any personal data collected in this investigation will be treated in accordance with Regulation (EC) No 45/2001 of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (7).


(1)  OJ L 188, 18.7.2009, p. 93.

(2)  An exporting producer is any company in the countries concerned which produces and exports the product under investigation to the Union market, either directly or via a third party, including any of its related companies involved in the production, domestic sales or exports of the product under investigation.

(3)  Pursuant to Article 15(3) of the basic Regulation, any zero and de minimis amounts of countervailable subsidies and amounts of countervailable subsidies established in the circumstances referred to in Article 28 of the basic Regulation shall be disregarded.

(4)  Only importers not related to exporting producers can be sampled. Importers that are related to exporting producers have to fill in Annex 1 to the questionnaire for these exporting producers. In accordance with Article 143 of Commission Regulation (EEC) No 2454/93 concerning the implementation of the Community Customs Code, persons shall be deemed to be related only if: (a) they are officers or directors of one another's businesses; (b) they are legally recognized partners in business; (c) they are employer and employee; (d) any person directly or indirectly owns, controls or holds 5 % or more of the outstanding voting stock or shares of both of them; (e) one of them directly or indirectly controls the other; (f) both of them are directly or indirectly controlled by a third person; (g) together they directly or indirectly control a third person; or (h) they are members of the same family. Persons shall be deemed to be members of the same family only if they stand in any of the following relationships to one another: (i) husband and wife, (ii) parent and child, (iii) brother and sister (whether by whole or half-blood), (iv) grandparent and grandchild, (v) uncle or aunt and nephew or niece, (vi) parent-in-law and son-in-law or daughter-in-law, (vii) brother-in-law and sister-in-law. (OJ L 253, 11.10.1993, p. 1). In this context ‘person’ means any natural or legal person.

(5)  The data provided by unrelated importers may also be used in relation to aspects of this investigation other than the determination of subsidisation.

(6)  A ‘Limited’ document is a document which is considered confidential pursuant to Article 29 of Council Regulation (EC) No 597/2009 (OJ L 188, 18.7.2009, p. 93) and Article 12 of the WTO Agreement on Subsidies and Countervailing Measures. It is also a document protected pursuant to Article 4 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council (OJ L 145, 31.5.2001, p. 43).

(7)  OJ L 8, 12.1.2001, p. 1.


ANNEX I









ANNEX II