CELEX: 52013PC0234
Language: en
Date: 2013-04-23
Title: Proposal for a COUNCIL IMPLEMENTING REGULATION imposing a definitive anti-dumping duty on imports of certain polyethylene terephthalate originating in India, Taiwan and Thailand following an expiry review pursuant to Article 11(2) of Regulation (EC) No 1225/2009, and terminating the expiry review proceeding concerning imports of certain polyethylene terephthalate originating in Indonesia and Malaysia

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		52013PC0234
		
			Proposal for a COUNCIL IMPLEMENTING REGULATION imposing a definitive anti-dumping duty on imports of certain polyethylene terephthalate originating in India, Taiwan and Thailand following an expiry review pursuant to Article 11(2) of Regulation (EC) No 1225/2009, and terminating the expiry review proceeding concerning imports of certain polyethylene terephthalate originating in Indonesia and Malaysia /* COM/2013/0234 final - 2013/0122 (NLE) */
			
				
		
		
			
			   	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'), and in particular Articles 9(2), 9(4) and 11(2) thereof in the
expiry review of the anti-dumping duty in force on imports of certain
polyethylene terephthalate originating in India, Indonesia, Malaysia, Taiwan
and Thailand.
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
By Regulation (EC) No 2604/2000 , the Council
imposed a definitive anti-dumping duty on imports of certain polyethylene
terephthalate ('PET') originating in India, Indonesia, Malaysia, Taiwan and
Thailand. Following an expiry review, the Council by Regulation (EC) No
192/2007, imposed a definitive anti-dumping duty for a further period of five
years. The anti-dumping measures were subsequently amended by Council
Regulation 1286/2008 pursuant to Article 19 of the Council Regulation (EC) No
597/2009 on protection against subsidised import from countries not members of
the European Community ('the basic anti-subsidy Regulation'). A later interim
review pursuant to Article 11(3) of the basic Regulation amended the measures
in force by Council Implementing Regulation No 906/2011. 
By Decision 2000/745/EC, as amended from time
to time, the Commission accepted undertakings setting a minimum import price
offered by three exporting producers in India.
In parallel to the measures against the
countries concerned, anti-dumping duties exist against imports of PET from
China (extended in November 2010) and countervailing measures are in force
since September 2010 against imports of PET originating in Iran, Pakistan and
the United Arab Emirates. Anti-dumping and anti-subsidy investigations against
Oman and Saudi Arabia were closed in 2011 following a withdrawal of the
complaint. 
Consistency with other policies and
objectives of the Union
Not applicable.
2.           RESULTS OF CONSULTATIONS
WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS
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.
The basic Regulation does not provide 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 24 February 2012, the Commission announced
by a notice, published in the Official Journal of the European Union, the
initiation of an expiry review of the anti-dumping measures applicable to
imports of certain polyethylene terephthalate originating in India, Indonesia,
Malaysia, Taiwan and Thailand.
The review was initiated following a request
lodged by the Committee of Polyethylene Terephthalate Manufacturers in Europe
(CPME) on behalf of Union producers representing around 95 %, of the Union
production of certain polyethylene terephthalate.
With respect to India, Taiwan and Thailand, the
review investigation found continued dumping of the product concerned which
would result in the recurrence of injury to the Union industry in case
anti-dumping measures were lifted. It was further established that the
continuation of measures was not against the interest of the Union.
As for Indonesia and Malaysia, it was concluded
that it was not likely that imports to the Union from those countries would
resume at dumped prices in injurious quantities to the Union market in the
short to medium term should measures be allowed to lapse.
Therefore it is suggested that the Council
adopts the attached proposal for a Regulation in order to extend the existing
measures for India, Taiwan and Thailand and to terminate the measures for
Indonesia and Malaysia.
Legal basis
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.
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:
The basic Regulation does not provide for
alternative options.
4.           BUDGETARY IMPLICATION
The proposal has no implication for the Union
budget.
2013/0122 (NLE)
Proposal for a
COUNCIL IMPLEMENTING REGULATION
imposing a definitive anti-dumping duty on
imports of certain polyethylene terephthalate originating in India, Taiwan and
Thailand following an expiry review pursuant to Article 11(2) of Regulation
(EC) No 1225/2009, and terminating the expiry review proceeding concerning
imports of certain polyethylene terephthalate originating in Indonesia and
Malaysia
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 Community [1] ('the basic Regulation'), and in particular Articles 9(2), 9(4) and
11(2) thereof,
Having regard to the proposal submitted by
the European Commission ('the Commission'), after consulting the Advisory
Committee,
Whereas:
A. PROCEDURE
1.           Previous investigations
and measures in force
(1)       By Regulation (EC) No
2604/2000[2] ('the original investigation'), the Council imposed a definitive
anti-dumping duty on imports of certain polyethylene terephthalate ('PET')
originating in, inter alia, India, Indonesia, Malaysia, Taiwan and Thailand
('the countries concerned'). Regulation (EC) No 2604/2000 was subsequently
amended by Council Regulation (EC) No 496/2002[3],
Council Regulation (EC) No 823/2004[4],
Council Regulation (EC) No 83/2005[5] and
Council Regulation (EC) No 1646/2005[6]. 
(2)       Following an expiry review
and partial interim review, the Council, by Regulation (EC) No 192/2007[7] ('the measures in force'), imposed a definitive anti-dumping duty
on imports of certain polyethylene terephthalate originating in, inter alia,
India, Indonesia, Malaysia, Taiwan and Thailand for a further period of five
years. Regulation (EC) No 192/2007 was subsequently amended by Council
Regulation (EC) No 1286/2008[8], Council Implementing Regulation (EU) No 906/2011[9] and by Council Implementing Regulation (EU) No 295/2013[10] .
(3)       By Decision 2000/745/EC[11]      and subsequent amendments, the Commission accepted
undertakings setting a minimum import price offered by exporting producers in
India and Indonesia.
2.           Countervailing measures in
force
(4)       By Regulation (EC) No
2603/2000[12], the Council imposed a definitive countervailing
duty on imports of PET originating in India, Malaysia and Thailand. Following an expiry review, the Council, by Regulation (EC) No
193/2007[13], imposed a definitive countervailing duty on imports originating in
India for a further period of five years (‘the countervailing measures in
force’).
3.           Request for an expiry
review
(5)       Following the publication
of a notice of impending expiry[14] of the
anti-dumping measures in force, the Commission received on 25 November 2011 a request for the initiation of an expiry
review of these measures pursuant to Article 11(2) of the basic Regulation. The
request was lodged by the Committee of Polyethylene Terephthalate Manufacturers
in Europe ('the applicant'), on behalf of producers representing around 95% of
the Union production of certain polyethylene terephthalate. 
(6)       The request was based on
the grounds that the expiry of the measures would be likely to result in a
continuation or recurrence of dumping and injury to the Union industry.
4.           Initiation of an expiry
review
(7)       Having determined, after
consulting the Advisory Committee, that sufficient evidence existed for the
initiation of an expiry review, the Commission announced on 24 February 2012,
by a notice published in the Official Journal of the European Union[15] ('the notice of initiation'), the initiation of an expiry review
pursuant to Article 11(2) of the basic Regulation.
5.           Parallel investigation
(8)       On
24 February 2012, the Commission also announced, by a notice published in the Official
Journal of the European Union[16], the initiation of an expiry review
pursuant to Article 18 of Council Regulation (EC) No 597/2009 of 11 June 2009[17] ('the basic anti-subsidy Regulation') of the countervailing
measures in force on imports of certain PET originating in India.
6.           Investigation
6.1.        Review investigation period
and period considered
(9)       The investigation of the
likelihood of a continuation or recurrence of dumping covered the period from 1
January 2011 to 31 December 2011 ('the review investigation period' or 'RIP').
The examination of the trends relevant for the assessment of the likelihood of
a continuation or recurrence of injury covered the period from 1 January 2008
to the end of the RIP ('the period considered'). 
6.2.        Parties concerned by the
investigation
(10)     The Commission officially
advised the applicant and other known Union producers, exporting producers in
the countries concerned,
unrelated importers, users known to be concerned and the representatives of the
countries concerned of the initiation of the expiry review.
(11)     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 notice of initiation. All interested parties, who so requested and
showed that there were particular reasons why they should be heard, were
granted a hearing.
(12)     In view of the apparent
large number of exporting producers in India, Indonesia, Malaysia, Taiwan and
Thailand, as well as unrelated importers it was considered appropriate to
examine whether sampling should be used in accordance with Article 17 of the basic Regulation. In order to enable the
Commission to decide whether sampling would be necessary and, if so, to select
a sample, the above parties were requested to make themselves known within 15
days of the initiation of the review and to provide the Commission with the
information requested in the notice of initiation. 
(13)     As regards the selection of
the samples of exporting producers, seven known exporting producers in India
were contacted. Seven exporting producers replied and indicated a willingness
to be included in the sample. Based on their volume of exports to the Union, a sample of three Indian
exporting producers was selected. 
(14)     Five known exporting producers
in Indonesia were contacted. However, no exporting producer in Indonesia
expressed a willingness to cooperate with the investigation. Accordingly, all
known exporting producers and the authorities of Indonesia were informed that
findings in relation to Indonesia would be made on the basis of the facts
available in accordance with Article 18 of the basic Regulation. 
(15)     Two known exporting
producers in Malaysia were contacted. Only one exporting producer replied and
indicated a willingness to be included in the sample. Therefore, it was decided
that sampling was not necessary with regards to exporting producers in
Malaysia. All other known exporting producers and the authorities of Malaysia
were informed that findings in relation to the non-cooperating exporting producers
would be made on the basis of the facts available in accordance with Article 18
of the basic Regulation.
(16)     Six known exporting
producers in Taiwan and one exporting producers’ association were contacted. No
exporting producer in Taiwan expressed a willingness to be included in the
sample. All known producers, including their representative association, as well as the authorities of Taiwan, were informed
that findings in relation to Taiwan would be made on the basis of facts available
in accordance with Article 18 of the basic Regulation. 
(17)     Nine known exporting
producers in Thailand were contacted. Only one exporting producer replied and
indicated a willingness to be included in the sample. Therefore, it was decided
that sampling was not necessary with regards to exporting producers in
Thailand. All other known exporting producers and the authorities of Thailand
were informed that findings in relation to non-cooperating exporting producers
would be made on the basis of the facts available in accordance with Article 18
of the basic Regulation.
(18)     The Commission announced in the notice of initiation that it had
provisionally selected a sample of Union producers. This sample consisted of
four companies, out of the thirteen Union producers that were known prior to
the initiation of the investigation, selected on the basis of the largest
representative volume of production and sales that could reasonably be
investigated within the time available. The sample represented over 50% of the
total estimated Union production and sales during the RIP. Interested parties
were invited to consult the file and to comment on the appropriateness of this
choice within 15 days of the date of publication of the notice of initiation. All interested parties, who so requested and showed that there were
particular reasons why they should be heard, were granted a hearing. 
(19)     Certain
interested parties raised objections concerning the sampling of Union
producers. They claimed that: (i) the Commission should not resort to sampling,
in particular, since no sampling was used in the previous investigation; (ii)
the method used for the selection of the sample was contested on the grounds
that it 'confuses three different steps', namely, the
support for the initiation of the expiry review,
definition of the Union industry and sampling; (iii) the provisional sample was
set up on the basis of incorrect and incomplete information; (iv) the selected
provisional sample was not representative because it included entities rather
than groups; it was also claimed that including one company that went through a
recent divestment or another company that had related sales diminished the
representativity of the sample. 
(20)     The arguments raised by the parties were addressed as follows: 
–              
The decision to use a sample is made for each
investigation independently depending on the particular circumstances of each case and Article 11(9)
of the basic Regulation does not govern the use of such a sample for the
determination of injury in the context of an expiry review. Unlike the previous
investigations, where the investigation of all companies that came forward and
cooperated was feasible, the Commission considered in the current review that,
in view of their large number, not all Union producers could be reasonably
investigated in the time available and that the conditions of Article 17 were
therefore met. 
–              
The Commission did not 'confuse' the
determination of the support for the initiation of the expiry review, the
determination of the Union industry and the selection of the provisional sample
as these steps remained independent from each other and were decided upon
separately. It was not demonstrated to what extent the use of the production
and sales data provided by the Union producers in the context of the
examination of the support for the initiation of the expiry review had affected
the representativity of the sample. 
–              
The sample was set up on the basis of the
information available at the time of selection in accordance with Article 17 of
the basic Regulation. The representativity of the sample was reviewed following
the comments of the parties concerning specific company data. None of the
comments made were considered to be founded. 
–              
As required by Article 17 of the basic
Regulation the sample was established on the basis of the largest representative volume of production and sales that
could be reasonably investigated within the time available. The entities
belonging to larger groups that were found to operate independently from other
subsidiaries of the same group were considered representative of the Union
industry and there was therefore no need to investigate the entire group on a
consolidated basis. At the same time, the companies were sampled as economic
entities, ensuring that all relevant data could be verified. Moreover, the
divestments and existence of related sales were part of the characteristics of
the sector in the period considered and therefore none of these elements was
considered to diminish the representativity of the sample.
(21)     Following the disclosure of
the essential facts and considerations (‘disclosure’) the parties reiterated
the above-mentioned arguments which have already been addressed. 
(22)     The three Indian sampled exporting producers,
the sole Malaysian exporting producer and the sole Thai exporting producer that
expressed a willingness to be included in the sample submitted questionnaire
replies. However the questionnaire reply of one Indian sampled producer
revealed that it only exported insignificant volumes of the product concerned
during the RIP and therefore verification visits were eventually completed in
the two remaining exporting producers which together represented 99% of total
imports from India to the Union during the RIP. 
(23)     Following disclosure, one
Indian cooperating producer requested a calculation of its dumping margin. In this
respect it was reconfirmed that the exports from this company were
insignificant and consequently had no impact on the determination of the
likelihood of continuation or recurrence of dumping in the present expiry
review. Therefore, this request was rejected. 
(24)     Sampling for unrelated importers was
foreseen in the notice of initiation. None of the twenty four contacted
unrelated importers cooperated in the present investigation.
(25)     All five known suppliers of
raw material were contacted upon the initiation and received relevant
questionnaire. Two suppliers replied to the questionnaire. 
(26)     All known users and users'
associations were contacted upon the initiation. Seventeen users submitted a
questionnaire reply. Twenty associations of users from 16 Member States made
themselves known and made submissions.
(27)     Verification of information
received
(28)     The Commission sought and
verified all the information it deemed necessary for a determination of the
likelihood of a continuation or recurrence of dumping and resulting injury and of the Union interest.
Verification visits were carried out at the premises of the following
interested parties:
(a)         
Union producers 
–              
Indorama Polymers Europe, UAB, Netherlands
–              
Equipolymers, Italy, Germany
–              
Neo Group, UAB, Lithuania
–              
Novapet SA, Spain
(b)         
Exporting producers in India:
–              
Dhunseri Petrochem & Tea Ltd, Kolkata;
–              
Reliance Industries Ltd, Navi Mumbai; 
(c)         
Producer in Malaysia:
–              
MPI Polyester Industries Sdn Bhd, Shah
Alam, Selangor;
(d)         
Producer in Thailand:
–              
Indorama Polymers Pcl, Bangkok;
(e)         
Users in the Union 
–              
Coca-Cola Europe, Belgium;
–              
Nestle Waters France, France.
B. PRODUCT CONCERNED AND LIKE
PRODUCT
1.           Product concerned
(29)     The product concerned by
this review is the same as the one in the last expiry review concluded in 2007
mentioned above in recital (2), namely polyethylene terephthalate having a
viscosity number of 78 ml/g or higher, according to ISO Standard 1628-5, currently falling within CN code 3907 60 20
and originating in India, Indonesia, Malaysia, Taiwan and Thailand.
2.           Like product
(30)     As
in the original and in the review investigations, it was found that the product
concerned and PET produced and sold on the domestic markets in the countries concerned, as well as PET produced and sold
in the Union by Union producers had the same basic physical and chemical
characteristics and uses. They were therefore considered to be like products
within the meaning of Article 1(4) of the basic Regulation. 
C. LIKELIHOOD OF A CONTINUATION OR
RECURRENCE OF DUMPING
3.           Preliminary remarks
(31)     In accordance with Article
11(2) of the basic Regulation, it was examined whether the expiry of the existing measures would be likely to lead to a
continuation or recurrence of dumping.
(32)     In case of non-cooperation,
such as in the case of the Indonesia and Taiwan, use had to be made of facts
available in accordance with Article 18 of the basic Regulation. As far as Malaysia and Thailand are concerned, information made
available by the cooperating companies as well as facts available were used.
(33)     During the RIP, the total
import volume of the product concerned originating from the countries concerned
according to Eurostat amounted to 126,500 tonnes, representing 4.5% of the
Union market share.
(34)     As regards the development
of production capacity and domestic consumption in the countries concerned, a
proprietary market intelligence report included in the request was used as well
as publicly available information
such as public company web profiles and verified questionnaire replies of the
cooperating companies. 
4.           India
4.1.        Preliminary remarks
(35)     As mentioned above, seven
Indian exporting producers cooperated and three of them were selected for the
sample. Since one of the sampled companies was found to only export
insignificant volumes of the product concerned during the RIP, verification
visits were eventually completed in the two remaining exporting producers which
together represented 99% of total imports from India to the Union during the
RIP. 
(36)     During the RIP total Indian
imports amounted to 97,000 tonnes representing 76% of total imports from the countries concerned by the current review and 3.4%
of the Union market share. The two sampled Indian exporting producers were
subject to an undertaking and were found to respect the minimum import price
(MIP) during the RIP. As these represented almost the total export from India,
their market share corresponded almost exactly to the market share of all India.

4.2.        Dumping of imports during
the RIP
4.2.1.     Normal value
(37)     In accordance with Article
2(2) of the basic Regulation, it was first established for each sampled Indian
exporting producer whether its total domestic sales of the like product to independent
customers were representative, i.e. whether the total volume of such sales was
equal to at least 5% of the total volume of the corresponding export sales to
the Union.
(38)     Subsequently, those types
of the like product sold domestically by the exporting producers having overall representative domestic sales, and that
were identical or directly comparable to the types sold for export to the
Union, were identified.
(39)     It was further examined
whether the domestic sales of each cooperating exporting producer were representative for each
product type, i.e. whether domestic sales of each product type constituted at
least 5% of the sales volume of the same product type to the Union. For the
product types sold in representative quantities it was then examined whether
such sales were made in the ordinary course of trade (‘OCOT’), in accordance
with Article 2(4) of the basic Regulation. This was done by establishing the
proportion of domestic sales to independent customers on the domestic market
which were profitable for each exported type of the product concerned during
the RIP.
(40)     As it was found that the
domestic sales of all product types were made in sufficient quantities and in the OCOT, normal value was
based on the actual domestic price, calculated as a weighted average of all the
domestic sales of that type made during the RIP.
4.2.2.     Export price
(41)     Since all export sales of
the product concerned were made directly to independent customers in the Union,
the export price was established in accordance with Article 2(8) of the basic Regulation on the basis of the
prices actually paid or payable. 
4.2.3.     Comparison
(42)     The comparison between the
weighted average normal value and the weighted average export price was made on an ex-works basis and at the same level of
trade. 
(43)     In order to ensure a fair
comparison between normal value and the export price, in accordance with
Article 2(10) of the basic Regulation, account was taken of differences in
factors affecting prices and price comparability. For this purpose, due allowance in the form of adjustments was
made for differences in transport, insurance, handling, financial costs,
packing costs, commissions and rebates where demonstrated to affect price
comparability. 
(44)     One exporting producer claimed
an adjustment pursuant to Article 2(10)(b) of the basic Regulation, on the
grounds that import charges were allegedly borne by the like product when
intended for consumption in the exporting country but were refunded by means of a duty drawback scheme ('DDS')
when the product was sold for export to the Union. The investigation showed,
however, that no correlation existed between the duty drawback amount,
calculated as a fixed percentage of the FOB value of products exported, and the
actual duties paid on imported inputs contained in the exported product. In
fact, it has been found that even exporters which procure all their inputs
locally and therefore do not import any of their inputs, are still entitled to
benefit from the DDS. Therefore, the claim was rejected. 
4.2.4.     Dumping margin
(45)     As provided for under
Article 2(11) and (12) of the basic Regulation, the weighted average normal
value by type was compared with the weighted average export price of the corresponding type of the product
concerned. This comparison showed the existence of dumping which amounted to
4.8% and 6.6% respectively for the two sampled exporting producers which
exported to the EU during the RIP, despite the fact both companies were subject
to price undertakings. 
(46)     Following disclosure, an
exporting producer claimed that the calculation of the dumping margin on the
basis of the domestic sales of four months instead of all months of the RIP was
not justified and argued that it artificially inflated its dumping margin. It
must be noted that, in the context of an expiry review the measures are either
maintained or repealed but cannot be amended. In addition, the four months
concerned, i.e. one month per each quarter and the normal value and export
prices of the same months were compared. It follows that a fair comparison was
guaranteed. Therefore the claim was rejected.
4.3.        Development of imports
should measures be repealed
(47)     Further to the
determination of the existence of dumping during the RIP, the likelihood of continuation of dumping should
measures be repealed was also investigated.
(48)     In this respect the
following elements were analysed: the volume and prices of dumped imports from
India, attractiveness of the Union market and other third markets, production
capacity and excess capacity available for exports of the Indian producers.
(49)     The analysis below was
mainly based on verified questionnaire replies and the market intelligence
study cross-checked with publicly available information.
4.3.1.     Volume and prices of dumped
imports from India 
(50)     Imports from India into the
Union doubled over the period considered and reached around 97,000 tonnes
during the RIP representing 3.5% of the total EU consumption during the RIP.
(51)     Throughout the period
considered, imports prices were fluctuating and followed the same trends as the
sales prices of the Union industry on the Union market. Overall, imports prices
increased from 2008 to the RIP by 29%. No undercutting was found during the
RIP. 
4.3.2.     Attractiveness of the Union
market and other third markets
(52)     During
the RIP, Indian export prices to third countries were generally lower than its
domestic prices. This price difference amounted to up to 7.5% of the export
price level. 
(53)     Indian
export prices to third countries were generally below the price of Indian
exports to the Union which supports the conclusion that the Union market is
attractive as the Union market may generate higher profits. However, due to
this difference in pricing policy, it cannot be excluded that prices to the
Union may decrease even further should measures be repealed. 
(54)     Following disclosure, an
exporting producer contended that the assessment of the attractiveness of the
Union market was influenced by the existence of an undertaking, which meant
that it could only export when prices where high. However a comparison of the
minimum import price (MIP) imposed by the undertaking with the ex-works price
of exports to the Union during the eight months where the producer was found
exporting to the Union reveals that the export price to the Union was on
average significantly higher than the MIP, indicating that the pricing policy
was only marginally influenced by the undertaking, if at all. It follows that
the existence of an undertaking in itself did not change the conclusion reached
regarding the attractiveness of the Union market. Therefore, this argument was
rejected. 
(55)     Production capacity and
excess capacity available for exports of the Indian producers
(56)     During the RIP, India had a
production capacity of 700,000-900,000 tonnes and the excess of production
capacity available for exports was of a 200,000-300,000 tonnes. 
(57)     According to the information collected during the
investigation, Indian capacity is projected to increase further and reach some
1,600,000 – 1,800,000 tonnes by 2014. That increase is expected to be much
steeper than the increase in domestic consumption. As a result, the excess of
capacity over domestic demand is estimated to reach about 600,000-700,000
tonnes in 2014, which would represent around 21-25% of the total Union
consumption during the RIP. It is also noted that
trade defence measures are in place against India in Turkey and South Africa,
thus potentially reducing the markets that could be available for Indian exports.
(58)     There is a likelihood that
exports to the Union would increase should the measures be repealed, given in
particular the higher price levels in the Union market and the market size with
the high consumption. On the other hand, it cannot be excluded that the
exporting producers would decrease their export prices to the Union even
further and that the dumping observed during the RIP would therefore be
exacerbated.
(59)     An exporting producer
submitted that the production capacity available for exports in India would
decrease after 2014 and therefore the current situation would only be
temporary. It is noted that the alleged decrease of capacity available for
exports after 2014 was found in line with the projections of the market
intelligence report. Therefore it was concluded that this submission was not of
a nature to modify the analysis with regard to the development of capacity
available for exports. After disclosure, an exporting producer claimed that
important temporary excess in capacities available for export were inevitable
due to the fact that generally production capacity increases can be done only
in large increments due to the minimum size of modern PET plants. In reply to
this, it should be noted that during between the RIP and the following year,
production capacity extensions in the range of at least 150,000 to 200,000
tonnes were made. It follows that the invoked reasoning alone cannot justify
the excess in capacity available for exports quoted in recital (55) above. In
any event, in this context the cause of the excess capacity available for
exports is irrelevant. Therefore the claim was rejected. 
(60)     Some
parties claimed that the excess capacity available for exports developing in
India could be absorbed also by other third countries and that therefore the
excess capacity available for exports as calculated by the Commission was not
properly assessed. It was not assumed in any way that the entirety of any
excess capacity available for exports would be directed to the Union. Therefore
the claim was rejected. 
(61)     An exporting producer
stated that Turkey and South Africa were rather unimportant export markets and
objected to the existence of trade defence measures against India in these
countries being interpreted by the Commission as an indication that India would
dump the product concerned on the Union market. The Commission’s assessment is
that the trade defence measures in place in Turkey and South Africa against
imports from India potentially reduce the markets that could be available for
Indian exports. Moreover, should the claim that Turkey and South Africa are
unimportant export markets be true, the increasing excess capacity in India
implies a likelihood of increased exports to the Union even in the absence of
the trade defence measures imposed by Turkey and South Africa. Therefore, the
claim was rejected. 
4.3.3.     Conclusion on the likelihood
of continuation of dumping
(62)     On
the basis of the above, and in particular in view of the continued dumping and
the high excess capacity available, it can be concluded that significant
volumes of imports from
India are likely to be directed to the Union market at dumped prices should
measures be allowed to lapse and therefore there is a likelihood of
continuation of dumping.
5.           Indonesia
5.1.        Preliminary remarks
(63)     None of the five known
Indonesian exporting producers cooperated in the investigation and therefore the analysis of the likelihood of
continuation of dumping was based on facts available in accordance with Article
18 of the basic Regulation. 
(64)     According
to Eurostat, import volumes from Indonesia during the RIP amounted to 253
tonnes representing close to 0% of total imports from the countries concerned
by the current review and close to 0% in terms of Union market share.
5.2.        Dumping of imports during
the RIP
(65)     In view of the lack of
cooperation, based on the elements in the request for review, imports from
Indonesia were made at dumped prices with a dumping margin of 10.8%.
5.3.        Development of imports
should measures be repealed 
(66)     Further to the
determination of the existence of dumping during the RIP, the likelihood of continuation of dumping should
measures be repealed was also investigated.
(67)     In this respect the
following elements were analysed: the volume and prices of dumped imports from
Indonesia, attractiveness of the Union market and other third markets, and
production capacity and excess capacity available for exports of the Indonesian
producers.
5.3.1.     The volume and prices of
dumped imports from Indonesia
(68)     Imports from Indonesia into
the Union remained at a very low level during the entire period considered. No
imports were made in 2008. In 2009, imports amounted to approximately 400
tonnes, increased in 2010 to about 1000 tonnes and decreased again to 253
tonnes during the RIP. The corresponding market share of the total Union
consumption of these imports was close to 0% throughout the whole period
considered.
(69)     In 2009 and 2010 Indonesian
import prices were on average higher than those of the Union industry on the
Union market. During the RIP, although the average Indonesian import price was
slightly lower than the one of the Union industry on the Union market, those
price levels could be considered similar. No undercutting was found during the
RIP. 
5.3.2.     Attractiveness of the Union
market and other third markets
(70)     Both the information
provided in the review request and official Indonesian trade statistics website
covered a broader product scope than the product concerned. Therefore prices to
third country export markets could not be reliably established. 
(71)     Due to the absence of
cooperation it was also not possible to establish a domestic price.
5.3.3.     Production capacity and
excess capacity available for exports
(72)     Given that there was no cooperation
forthcoming from Indonesia, the evolution of production capacity and domestic
demand was established on the basis of data contained in the request for review
amended following a submission of the applicant received during the
investigation stating that the only capacity extension plan forecast in the
request for review would not materialise. The amended data was cross-checked
with publicly available information such as public company web profiles. On the
basis of the above, production capacity in Indonesia appears to remain at the
same level during the entire period considered at 400,000-600,000 tonnes. The
excess capacity available for export during the period considered continuously
decreased and reached 65-70% of the total country capacity during the RIP
representing 9-11% of the total EU consumption. There is no increase in
capacity forecast until at least 2014. At the same time, consumption in
Indonesia is expected to increase. As a result, the portion of the production
capacity available for exports is expected to decrease and to represent only a
very minor part of the total Union consumption during the RIP.
5.3.4.     Conclusion on the likelihood
of continuation of dumping
(73)     In view of the above, in
particular the findings concerning the expected evolution of capacity, it was
considered that there is no likelihood that Indonesian exporting producers will
resume exporting injurious quantities at dumped prices to the Union market in
the short to medium term should measures be repealed. 
6.           Malaysia
6.1.        Preliminary remarks
(74)     Only one of the two known
exporting producers cooperated in the investigation but was found not to export
to the Union during the RIP. This producer represented around 20% of the total
production capacity in Malaysia during the RIP. The information provided by the
cooperating producer in Malaysia was used with regard to the analysis of the
price behaviour on the Malaysian domestic market as well as to other third
country markets.
(75)     Findings were also based on
facts available in accordance with Article 18 of the basic Regulation, i.e. on
the request for review and publicly available information such as public web
company profiles.
(76)     During
the RIP, imports into the Union from Malaysia amounted to 17,000 tonnes
representing 13% of total imports from the countries concerned by the current
review and close to 0.6% of the Union market share.
6.2.        Dumping of imports during
the RIP 
(77)     On the basis of the request
for review, imports from Malaysia were made at dumped prices with a dumping
margin of 6.7%. 
(78)     Since the cooperating
producer did not export to the Union during the RIP, it was not possible to
calculate a dumping margin for that company. However a normal value was
calculated on the basis of its domestic sales and a comparison of this normal
value with the price of imports from Malaysia to the Union as reported by
Eurostat gives a figure that is consistent with the dumping margin referred to
in recital (75). 
6.3.        Development of imports
should measures be repealed
(79)     Further to the
determination of the existence of dumping during the RIP, the likelihood of
continuation of dumping should measures be repealed was also investigated.
(80)     In this respect the
following elements were analysed: the volume and prices of dumped imports from
Malaysia, attractiveness of the Union market and other third markets, and
production capacity and excess capacity available for exports of the Malaysian
producers.
6.3.1.     The volume and prices of
dumped imports from Malaysia
(81)     Imports from Malaysia into
the Union increased during the period considered from around 8,000 tonnes to
17,000 tonnes, after a steep decrease in 2009 and 2010. Despite the overall
increase of imports from Malaysia, market shares remained close to 0% except
for the RIP where it reached 0.6%. 
(82)     Throughout the period
considered, import prices were fluctuating and followed the same trends as the
sales prices of the Union industry on the Union market. Overall, imports prices
increased from 2008 to the RIP by 25%. No undercutting was found during the
RIP.
6.3.2.     Attractiveness of the Union
market and other third markets
(83)     During the RIP, the
cooperating exporting producer exported 300-500 tonnes of the like product to
other third countries. The analysis of those sales shows that during the RIP
Malaysian export prices to third countries were generally higher than its
domestic prices. This price difference amounted to 5-10%.
6.3.3.     Production capacity and
excess capacity available for exports
(84)     The total production capacity
in Malaysia was around 100,000-300,000 tonnes during the RIP on the basis of
the review for request cross-checked with publicly available information such
as public company web profiles. The excess capacity available for exports
during the period considered continuously decreased and reached around 52-55%
of the total country capacity during the RIP representing 3-4% of the total EU
consumption. According to the same sources, production capacity is forecast to
remain at this level at least until 2014 while domestic consumption is expected
to increase. Consequently, the portion of the production capacity available for
exports is expected to decrease and to represent 2-3% of the total Union
consumption during the RIP. It is therefore not expected that the import
volumes from Malaysia would significantly increase should the measures be
repealed.
6.3.4.     Conclusion on the likelihood
of continuation of dumping
(85)     In view of the above, in
particular the findings concerning the expected evolution of capacity, it was
considered that there is no likelihood that Malaysian exporting producers will
resume exporting injurious quantities at dumped prices to the Union market in
the short to medium term should measures be repealed. 
7.           Taiwan
7.1.        Preliminary remarks
(86)     None
of the four Taiwanese exporting producers cooperated in the investigation and
therefore the analysis of the likelihood of continuation of dumping was based
on facts available in accordance with Article 18 of the basic Regulation. 
(87)     During
the RIP import volumes in the Union from Taiwan amounted to 12,000 tonnes,
representing 9.7% of total imports from the countries concerned by the current
review, and around 0.4% of Union market share.
7.2.        Dumping of imports during
the RIP
(88)     In view of the lack of
cooperation, based on the elements in the request for review, imports from
Taiwan were made at dumped prices with a dumping margin of 12%. 
(89)     Following disclosure, some
parties claimed that for the purpose of calculating a dumping margin, the Commission
should have used the domestic and export prices of a Taiwanese PET producer
which was the applicant of a ‘new exporter’ review pursuant Article 11(4) of
the basic Regulation[18] for which the investigation period was overlapping with the RIP of
the current proceeding. It must be noted, however, that the PET producer in
question did not cooperate in this expiry review. Information submitted in the
context of an investigation can only be used for the purpose for which it was
requested. Therefore, the information obtained in the said ‘new exporter’
review cannot be used in the context of the current expiry review. In addition,
it is the smallest PET producer in Taiwan and its export sales to the Union
represented only an insignificant share of the total Taiwanese exports during
the RIP. Therefore, the claim was rejected. It was claimed that overall,
imports from Taiwan during the RIP were not dumped. However, it is recalled
that none of the Taiwanese exporting producers cooperated and therefore dumping
could not be determined on the basis of data submitted by these exporting
producers. The claim that dumping did not exist was therefore not substantiated
by any evidence and was rejected. 
7.3.        Development of imports
should measures be repealed
(90)     Further
to the determination of the existence of dumping during the RIP, the likelihood
of continuation of dumping should measures be repealed was also investigated.
(91)     In
this respect the following elements were analysed: the volume and prices of
dumped imports from Taiwan, attractiveness of the Union market and other third
markets, and production capacity and excess capacity available for export of
the Taiwanese producers.
7.3.1.     The volume and prices of
dumped imports from Taiwan
(92)     Imports from Taiwan into the
Union increased during the period considered from around 10,000 tonnes to
12,000 tonnes, after a decrease in 2009 and 2010. Despite the overall increase
of imports from Taiwan, market shares remained close to 0% and, during the RIP,
reached 0.4% of the total Union consumption during the RIP. 
(93)     Throughout the period
considered, imports prices were fluctuating and followed the same trends as the
sales prices of the Union industry on the Union market. Overall, imports prices
increased from 2008 to the RIP by 27%. No undercutting was found during the
RIP. 
7.3.2.     Attractiveness of the Union
market and other third markets
(94)     Statistics
from the Taiwanese Bureau of Foreign Trade indicate that sales to third
countries were made in large volumes, accounting for around 60% of the
country's total production capacity during the RIP.
(95)     A comparison of the average
export price available from the same source with the normal value contained in
the request for review indicated that the export prices to third countries were
generally lower than its domestic prices. This price difference amounted to up
to around 12% of the export price level. 
(96)     Statistics
from the Taiwanese Bureau of Foreign Trade showed that the average export price
to third countries was below the price of the Union industry in the Union. The
price difference amounted to around 7% of the export prices. During the RIP,
the average price of exports to the Union was also found to be higher than the
average price of exports to other third countries. The difference amounted to
up to 5.5% of the price of exports to other third countries. There is therefore
an incentive to export to the Union where the prevailing price level of the
Union industry is higher. This suggests that if measures were repealed, and in
connection with the large excess capacities available for exports (see recitals
(97) to (98) below), Taiwanese exporters are likely to export PET at dumped
prices and at quantities above levels likely to cause injury to the Union. 
(97)     Following disclosure, one
interested party contested the Commission's use of statistics of the Taiwanese
Bureau of Foreign Trade on the basis that the product code allegedly did not
coincide with the product concerned. It is true that Taiwan and the Union use
different scales to measure viscosity, namely the 'intrinsic viscosity' in
Taiwan and the 'viscosity number' in the Union. However, using the mathematical
relationship between both scales, it can be concluded that the Taiwanese
product code used corresponds to the product concerned. Therefore the
allegation was rejected.
7.3.3.     Production capacity and
excess capacity available for exports
(98)     Given
that there was no cooperation forthcoming from Taiwan, the evolution of
capacity and domestic demand was established on the basis of data contained in
the review request cross-checked with publicly available information such as
public company web profiles. 
(99)     The
total production capacity in Taiwan was around 1,000,000-1,200,000 tonnes
during the RIP. The excess capacity available for exports remained stable
during the three first years of the period considered and increased during the
RIP where it represented around 80% of the total country capacity during the
RIP and 28-33% of the total Union consumption during the RIP. According to the
same sources, production capacity is forecast to increase significantly at
least until 2014 while domestic consumption is expected to increase only
slightly. Consequently, the portion of the production capacity available for
exports is expected to increase to 1,200,000-1,300,000 tonnes representing
42-47% of the total Union consumption during the RIP. 
(100)   This
demonstrates that Taiwanese exporting producers of the product concerned are
heavily dependent on export sales and that there is a likelihood that exports
to the Union will increase should the measures be repealed. In particular, the
price level of the Union industry on the Union market is higher than the export
price of Taiwan on third country export markets, which makes the Union market
more attractive than other third country markets. On the other hand, it cannot
be excluded that in order to gain market share, some exporters may decrease
their export prices to the Union. In addition,
trade defence measures are in place against Taiwan in Turkey and South Africa.
This reduces the free access to potential other markets available for Taiwanese
exports.
(101)   Some
interested parties argued that there is no spare capacity in Taiwan that would
allow for a substantial increase of exports to the Union. In addition, it was
argued that the main export markets of Taiwan's PET production are the
Asia-Pacific region and the Americas. The CIF prices of imports of PET from
Taiwan are higher than those of all other main sources of imports into the
Union and the measures in force on imports of PET originating in Taiwan are
very low and their expiry would not result in a significant price difference. 
(102)   It
is to be noted that none of the Taiwanese exporting producers cooperated in the
present review. Moreover, the findings described in recitals (97) to (98) above
point to the contrary. On these grounds the allegations made by the parties in
question have to be rejected. 
(103)   Following disclosure, these
parties reiterated the importance of the Asia-Pacific and South America regions
as export markets and claimed that these markets would attract a significant
proportion of the projected Taiwanese increase in the excess capacity available
for exports. In support of their claim, the parties provided the relative
values of production capacity and domestic demand in 2012 and 2020 for both
regions. It should be noted that the situation in 2020 is irrelevant to the
current expiry review and that using 2012 as one term of the comparison amounts
to disregarding the important capacity extensions made during the RIP up to
2012. Therefore the claim was rejected.
(104)   Moreover,
some parties claimed that the excess capacity available for exports developing
in Taiwan should take into account the increasing demand on other third markets.
As a result they claimed that the excess capacity available for exports was not
properly assessed. As already mentioned in recital (58) above, the
investigation did not conclude that all capacity available for exports would be
directed to the Union. It was not considered in any way that the entirety of
any excess capacity available for exports would be directed to the Union. Based
on the available data it is reasonable to consider that given the
attractiveness of the Union market in terms of price and size and the large
volumes of extra capacity available for exports, the quantities likely to be
directed to the Union market are expected to be above levels likely to cause
injury. In addition, it is recalled that none of the Taiwanese PET producers
cooperated in the investigation and precise figures on actual production and
capacity as well as domestic and export sales were not available. Therefore,
conclusions with regard to continuation of dumping had to be based on the facts
available as indicated in recital (84) above. In this regard, in view of the
significant quantities available for exports and given the analysis of the
export price levels to other third countries as well as the price level in the
Union in recitals (93) to (95) above, it is reasonable to consider that exports
from Taiwan will be re-directed to the Union at dumped prices and at quantities
above levels likely to cause injury should the measures be repealed. Therefore
the claim was rejected.
(105)   Another
party claimed that the ad-valorem duty applicable to Taiwan during the RIP is
at very low levels and therefore it cannot be concluded that imports from
Taiwan will be made at dumped levels should the measures be repealed. The
current dumping margin in force is a minimum price based on an ad valorem duty
of 12.4%. The fact the prices were higher during the RIP and that therefore the
hypothetical ad valorem duty would be at a lower level, is irrelevant because
it does not take into consideration likely price developments after the RIP
should measures be repealed as shown above in recitals (94) and (98) above.
This argument was therefore rejected.
7.3.4.     Conclusion on the likelihood
of continuation of dumping
(106)   In
view of the large and increasing capacity, the attractiveness of the Union
market and the measures in force in other third countries, it was concluded
that it is likely that exports from Taiwan would be re-directed to the Union at
dumped prices in quantities likely to cause injury should the measures be allowed
to lapse. 
(107)   Following disclosure, one
party claimed that the alleged low level of dumping duty during the RIP should
have been taken into consideration in the analysis of the likelihood of
recurrence or continuation of dumping. However, it should be noted that none of
the exporting producers in Taiwan cooperated and that therefore the claim that
dumping margins during the RIP were at low levels was not substantiated and
rejected. It is recalled that the dumping margins found during the RIP were 12%
based on facts available. As mentioned above in recital (104), the analysis of
the likely price development of Taiwanese exports should measures be allowed to
lapse has shown that continuation of dumping was likely. Therefore the claim
was rejected.
8.           Thailand
8.1.        Preliminary remarks
(108)   Cooperation was only
forthcoming from one exporting producer which did not export PET to the Union
during the RIP. The cooperating producer represented around 25% of the total
production capacity of Thailand during the RIP. Three other producers are
present in Thailand which did not cooperate. Findings were therefore also based
on facts available in accordance with Article 18 of the basic Regulation.
(109)   During
the RIP, exports to the Union amounted to 727 tonnes representing 0.6% of the
total imports from the countries concerned by the current review and close to
0% of the Union market share.
8.2.        Dumping of imports during
the RIP
(110)   According to the review request, the imports in the Union
were made at dumped prices with a dumping margin of 14.1%. 
(111)   Since the cooperating
company did not export to the Union during the RIP, it was not possible to
calculate a dumping margin for that company. However a normal value was
calculated on the basis of its domestic sales and a comparison of this normal
value with the price of imports from Thailand to the Union as reported by
Eurostat gives a figure that is consistent with the dumping margin referred to in
recital (108) above.
8.3.        Development of imports
should measures be repealed
(112)   Further to the determination
of the existence of dumping during the RIP, the likelihood of continuation of
dumping should measures be repealed was also investigated.
(113)   In this respect the
following elements were analysed: the volume and prices of dumped imports from
Thailand, attractiveness of the Union market and other third markets, and
production capacity and excess capacity available for exports of the Thai
producers.
8.3.1.     The volume and prices of
dumped imports from Thailand
(114)   Imports from Thailand into
the Union remained at a negligible level during the entire period considered
with no imports in 2009 and 2010. During the RIP, imports increased from around
500 tonnes in 2008 to around 700 tonnes which represented close to 0% of the
total Union consumption during the RIP.
(115)   During the period
considered, the import prices increased from around 980 EUR/tonne in 2008 to
around 1300 EUR/tonne during the RIP, i.e. by 32%. No undercutting was found
during the RIP.
8.3.2.     Attractiveness of the Union
market and other third markets
(116)   During the RIP, the average
domestic price of the sole cooperating exporting producer was found to be lower
than the average price charged by the Union Industry in the Union. The price
difference amounted to 9%. 
(117)   The cooperating exporting
producer was found to export to third country markets other than the Union. Its
average export price to those markets on an ex-works basis was lower than the
normal value. The price difference amounted to 10.8% of the average export
price. 
(118)   Exports from the cooperating
exporting producer to other third countries were made at prices below the Union
industry price level in the Union. The price difference amounted to 6.6% of the
export prices to the third country markets. 
8.3.3.     Production capacity and
excess capacity available for exports
(119)   Production
capacity in Thailand was established on the basis of the information in the
request for review, publicly available information such as public web company profiles,
and the questionnaire reply of the cooperating company. 
(120)   The production capacity in
Thailand increased significantly during the period considered and represented
more than three times the domestic consumption in Thailand during the RIP. The total
production capacity in Thailand was between 700,000-900,000 tonnes during the
RIP. The excess production capacity available for exports during the period
considered continuously decreased and reached 70-75% of the total country
capacity during the RIP, representing 17-22% of the total EU consumption. This
shows that Thailand is an export oriented country and that Thai producers of
the product concerned are heavily dependent on export sales. The investigation
has shown capacity will further increase by 2014 to up to 800,000-1,000,000
tonnes. At the same time, according to the same sources, the domestic demand
will not increase in the same rhythm and will remain at a relatively low level.
As a consequence, the excess of capacity over domestic demand is expected to
increase significantly to around 700,000-800,000 tonnes in the near future,
representing 25-30% of the total Union consumption during the RIP. In addition, trade defence measures are
in place against Thailand in Turkey and Malaysia thus reducing the free access
to potential other third country markets available for exports. In view of the significant quantities available for exports and
given the analysis of the export price levels to other third countries as well
as the price level in the Union in recitals (114) to (116) above, it is
reasonable to consider that exports from Thailand will be re-directed to the
Union at dumped prices and at quantities above levels likely to cause injury
should the measures be repealed.
(121)   Following disclosure, the
Thai Department of Foreign Trade argued that the comparison of production
capacity and domestic demand should have been considered at the level of the
ASEAN region. It is noted that the Thai government does not substantiate its
claim, and therefore there is no justification to alter the conclusions reached
on the basis the excess capacity available for exports in Thailand.
8.3.4.     Conclusion on the likelihood
of continuation of dumping
(122)   In view of the large and
increasing capacity, the attractiveness of the Union market and the measures in
force in other third countries, it was concluded that it is likely that exports
from Thailand would be re-directed to the Union at dumped prices in quantities
likely to cause injury should the measures be allowed to lapse. 
D. DEFINITION OF THE UNION INDUSTRY
1.           Union production and Union
industry
(123)   The like product is
manufactured by 13 known producers in the Union. They represent the Union
industry within the meaning of Articles 4(1) of the basic Regulation and will
thereafter be referred as 'the Union industry'.
(124)   Twelve known Union
producers, represented by the complainant in the present case, cooperated and
supported the investigation. One more known Union producer did not cooperate in
the present review. 
(125)   All available information
concerning Union industry, such as questionnaire replies, Eurostat and request
for review, was used in order to establish the total Union production for the
RIP.
(126)   The
Union market for PET is characterised by a relatively high number of producers,
belonging usually to bigger groups with headquarters outside the Union. Between
2000 and 2012 the Union PET industry has undergone through several transitions.
The market is in a process of consolidation with a number of recent takeovers
and closures. New products, such as recycled PET and bio PET continue to be
developed together with a relatively recent spinoff of a recycling industry.
(127)   Following the disclosure
some parties argued that the description of the situation of the Union industry
was inaccurate as five producers were in fact belonging to one large transnational
group and another three producers were related to PET packaging companies. None
of these facts contradict the description provided in recital (124) explicitly
stating that the Union producers are usually belonging to bigger groups as
disclosed. The impact of this concentration is addressed in recital (209) below.
The assessment of the impact of captive market is analysed in recitals (203) to
(205) below.
(128)   As indicated above, given
the relatively high number of cooperating Union producers a sample of four
Union producers was selected, representing over 50% of the production and sales
of the total Union production of the like product in the RIP. 
E. SITUATION ON THE UNION MARKET
1.           Union Consumption
(129)   Union consumption was
established on the basis of the sales volumes of the Union industry on the
Union market, the import volumes data obtained from Eurostat and, concerning
the non-cooperating Union producer, from estimations based on the request for
review.
(130)   After an initial increase in
2009 and 2010, the consumption showed a slight decrease of 2% in the RIP as
compared to 2008, totalling to 2.802 million tonnes in the RIP.
 Table 1 
 Consumption   
   || 2008 || 2009 || 2010 || RIP 
 Volume (tonnes) ||   ||   ||   ||   
 Consumption || 2,868,775 || 2,934,283 || 2,919,404 || 2,802,066 
 Index || 100 || 102 || 102 || 98 
 Source: Questionnaire replies, Eurostat, review request ||   
2.           Imports from countries
concerned 
2.1.        Cumulation
(131)   In the expiry review
concluded in 2007, imports of PET originating in India, Taiwan, Thailand,
Malaysia and Indonesia were assessed cumulatively in accordance with Article 3(4) of the basic Regulation. It was
examined whether a cumulative assessment was also appropriate in the current
investigation. 
(132)   In
this respect, it was found that the dumping margins established for imports
from India, Taiwan, Thailand, Indonesia and Malaysia were above the de
minimis level. As regards the import volumes to the Union market, these
were above negligible levels only for India. In the case of Taiwan, Thailand,
Indonesia and Malaysia the imports volumes were below de minimis levels.
A prospective analysis of the likely export volumes by each country, should the
measures be repealed, was therefore performed. It revealed that imports from
Taiwan and Thailand, unlike Indonesia and Malaysia, would likely increase to
levels above those reached in the RIP and likely exceed the negligibility
threshold, if measures were repealed (see recitals (102) and (118)). As to
Indonesia and Malaysia, it was found that imports into the Union were
negligible in the period considered and the prospective excess capacity available
for exports was found to be very low. It is thus not very likely that this
situation will change in the short term. 
(133)   Given the fact that the
volume of dumped imports from Indonesia and Malaysia during the RIP was
negligible and that it is not likely to increase as explained in recital (130)
above, it was considered that the criteria set out in Article 3(4) of the basic
Regulation were not met with regard to imports from Malaysia and Indonesia. 
(134)   Regarding imports from
India, Taiwan and Thailand, it is to be noted that PET is a commodity based
product with similar chemical and technical characteristics regardless of the
origin. In that light, it is considered that the imported PET was
interchangeable with the types of PET produced in the Union. In addition, they
were marketed in the Union during the same period. Therefore, it is considered
that the imported PET originating in India, Taiwan and Thailand competed with
PET produced in the Union. 
(135)   On the basis of the above,
it is considered that the criteria set out in Article 3(4) of the basic
Regulation were met with regard to India, Taiwan and Thailand. Imports from
these three countries were therefore examined cumulatively. Since the criteria
set in Article 3(4) of the basic Regulation were not met with regard to
Malaysia and Indonesia, imports originating in these two countries were
examined individually. 
(136)   Following the disclosure one
party objected the cumulation of imports from Thailand with imports from India
and Taiwan while the imports from Malaysia and Indonesia were decumulated. It
was argued that Thailand was in a similar position to Malaysia and Indonesia
and thus should have been treated in a similar way. It is recalled that given
the excess capacities available for exports found in Thailand (see recital (118)
above) the criteria of Article 3(4) of the basic Regulation were fulfilled. No
parallel could have been drawn between Thailand and Malaysia and Indonesia
since the last two countries did not have excess capacities available for
exports similar to those found in Thailand. The comment of the party was
therefore dismissed. 
3.           Imports from India, Taiwan
and Thailand
3.1.        Volume, market share and
prices of imports
(137)   Despite the measures in
place, the imports from India, Taiwan and Thailand have nearly doubled over the
period considered. This is mainly due to the increase of imports from India
which increased from 46,313 tonnes in 2008 to 96,678 tonnes in the RIP out of a
total of 109,633 for the three countries in question. 
(138)   The market share of imports
from India, Taiwan and Thailand rose accordingly from 2% in 2008 to 3.9% in the
RIP. Imports from India reached a market share of 3.5% in the RIP,
significantly above the market share established in the last expiry review
(0.3%)
(139)   The average price stood at
1,290 EUR/tonne in the RIP. This reflects an increase of 23% over the period
considered, which was acquired after an initial decline of 20% in 2009. 
 Table 2 
 Imports from India, Taiwan and Thailand   
   || 2008 || 2009 || 2010 || RIP 
 Volume of imports from India, Taiwan and Thailand (tonnes) || 57,178 || 54,173 || 90,154 || 109,633 
 Index (2008 = 100) || 100 || 95 || 158 || 192 
 Market share of imports from India, Taiwan and Thailand || 2.0% || 1.8% || 3.1% || 3.9% 
 Index (2008 = 100) || 100 || 93 || 155 || 196 
 Price of imports (EUR/tonne) || 1,049 || 838 || 1,031 || 1,290 
 Index (2008 = 100) || 100 || 80 || 98 || 123 
 Source: Eurostat. 
3.2.        Price undercutting
(140)   In view of the absence of
cooperation by the Taiwanese exporting producers, price undercutting regarding
imports from Taiwan had to be established on the basis of import statistics
(Eurostat). Given that the cooperating Thai exporter did not export to the
Union during the RIP, in this case also, the price undercutting regarding
imports from Thailand had to be established on the basis of import statistics
(Eurostat). For India, the calculation was based on the data collected and
verified on spot. The relevant sales prices of the Union industry were those to
independent customers, adjusted where needed to ex-works level. In the RIP, no
undercutting was found for any of the countries concerned. 
4.           Imports from Malaysia and
Indonesia 
4.1.        Volume, market share and
prices of imports
(141)   The import volumes from
Malaysia doubled over the period considered despite a decline of 70% until
2010. The imports from Indonesia remained negligible. The import volumes for both
countries remained below de minimis level.
(142)   The market share of Malaysia
increased accordingly from 0.3% to 0.6%. The market share of Indonesia remained
close to 0% over the period considered.
(143)   The average unit price for
Malaysia stood at 1,299 EUR/tonne in the RIP. This reflects a 25% increase
which was acquired in the last two years of the period considered, after an
initial decline of 28% between 2008 and 2009. The average unit price for
Indonesia stood at 1,304 EUR/tonne in the RIP. This reflects a 34% increase
between 2009 and the RIP. Indonesia did not export to the EU in 2008. 
 Table 3 || 
 Imports from Malaysia || 
   || 2008 || 2009 || 2010 || RIP || 
 Volume of imports (tonnes) || 8,213 || 2,028 || 308 || 16,628 || 
 Index (2008 = 100) || 100 || 25 || 4 || 202 || 
 Price of imports (EUR/tonne) || 1,038 || 751 || 942 || 1,299 || 
 Index (2008 = 100) || 100 || 72 || 91 || 125 || 
 Market share of imports || 0.3% || 0.1% || 0.0% || 0.6% || 
 Source: Eurostat data ||   ||   ||   ||   
   ||   ||   ||   ||   
 Table 4 || 
 Imports from Indonesia || 
   || 2008 || 2009 || 2010 || RIP || 
 Volume of imports (tonnes) || - || 408 || 991 || 253 || 
 Index (2009 = 100) || - || 100 || 243 || 62 || 
 Price of imports (EUR/tonne) || - || 973 || 1,222 || 1,304 || 
 Index (2009 = 100) || - || 100 || 126 || 134 || 
 Market share of imports || - || 0.01% || 0.03% || 0.01% || 
 Source: Eurostat data ||   ||   ||   ||   || 
4.2.                  Price
undercutting
(144)   In view of the absence of
cooperation by the Indonesian exporting producers, price undercutting regarding
imports from Indonesia had to be established on the basis of import statistics
(Eurostat). Given that the cooperating Malaysian exporters did not export to
the Union, in this case also, the price undercutting regarding imports from
Malaysia had to be established on the basis of import statistics (Eurostat).
The relevant sales prices of the Union industry were those to independent
customers, adjusted where needed to ex-works level. In the RIP, no undercutting
was found for any of the two countries. 
5.           Imports from other third
countries
5.1.        Imports from China, United
Arab Emirates (UAE), Iran and Pakistan 
(145)   Imports from other third
countries with anti-dumping measures in place decreased by 69% over the period
considered despite an increase of 49% in 2009. Only imports from China remained
stable. 
(146)   The market share of the
countries in question was reduced from 8.2% in 2008 to 2.6% in the RIP
including mainly the UAE (1.7% in RIP) and China (0.6% in RIP).
(147)   The average price amounted
to 1,258 EUR/tonne in the RIP, 5.5% below the unit price of the Union industry.
This reflects a 24% increase over the period considered which was acquired in
the RIP after an initial decline of 22% in 2009.
 Table 5 
 Imports from China, the UAE, Iran and Pakistan 
   || 2008 || 2009 || 2010 || RIP 
 Volume of imports from China, the UAE, Iran and Pakistan (tonnes) || 235,913 || 351,798 || 188,776 || 72,054 
 Index (2008 = 100) || 100 || 149 || 80 || 31 
 Market share of imports from China, the UAE, Iran and Pakistan || 8.2% || 12.0% || 6.5% || 2.6% 
 Index (2008 = 100) || 100 || 146 || 79 || 31 
 Price of imports (EUR/tonne) || 1,016 || 789 || 949 || 1,258 
 Index (2008 = 100) || 100 || 78 || 93 || 124 
 Source: Eurostat ||   ||   ||   ||   
5.2.        Imports from other third
countries without any measures 
(148)   Volumes
of imports from other third countries without any measures including Oman,
South Korea, Russia, Mexico and Saudi Arabia increased by 59% over the period
considered, after a growth of 71% in 2009. Between 2009 and RIP, Oman became
the largest exporting country in the Union. 
(149)   The market share of the
countries in question rose from 9.7% in 2008 to 15.8% in RIP, mainly due to the
gain of 4.3% of imports from Oman. The market share of South Korea stood at 4%
in the RIP, 5% below its highest level reached in 2009. 
(150)   The
average price amounted to 1,273 EUR/tonne, 4.3% below the average unit price of
the Union industry. This reflects a 10% increase over the period considered
which was acquired in 2010 and RIP after an initial decline of 24% in 2009. The
average price of imports from Oman stood at 1,310 EUR/tonne in RIP, 1.5% below
the unit price of the Union industry. The average price of imports from South
Korea stood at 1,294 EUR/tonne, 2.7% below the unit price of the Union
industry. 
 Table 6 
 Imports from other third countries 
   || 2008 || 2009 || 2010 || RIP 
 Volume of imports from other third countries (tonnes) || 279,188 || 478,570 || 469,753 || 442,692 
 Index (2008 = 100) || 100 || 171 || 168 || 159 
 Market share of imports from other third countries || 9.7% || 16.3% || 16.1% || 15.8% 
 Index (2008 = 100) || 100 || 168 || 165 || 162 
 Price of imports (EUR/tonne) || 1,156 || 879 || 997 || 1,273 
 Index (2008 = 100) || 100 || 76 || 86 || 110 
 Main exporters (tonnes) 
 Oman || 0 || 52,632 || 95,646 || 120,286 
 South Korea || 177,341 || 254,451 || 183,801 || 114,346 
 Russia || 546 || 546 || 3 || 50,427 
 Mexico || 2,650 || 1,879 || 29,039 || 29,409 
 Saudi Arabia || 230 || 20,454 || 50,108 || 24,756 
 Others || 98,422 || 148,609 || 111,156 || 103,468 
 Source: Eurostat 
(151)   Following
disclosure, some parties argued that the Commission omitted to assess the
impact of imports from South Korea. It is recalled that the measures against
South Korea expired in 2012. Before expiration of the duties, over 99% of
imports from this country were entering with 0% duty rate. For these reasons
the imports from South Korea are included in the analysis together with the
imports from other countries without any measures (recitals (202) and (212)
below). The claim was rejected as unsubstantiated. 
6.           Economic situation of the
Union industry 
(152)   Pursuant to Article 3(5) of
the basic Regulation, all economic factors and indices having a bearing on the
state of the Union industry during the period considered have been examined.
(153)   For the purpose of the
injury analysis, the injury indicators have been established at the following
two levels: 
–              
the macroeconomic indicators (production,
production capacity, capacity utilisation, sales volume, market share, growth,
employment, productivity, magnitude of dumping margins and recovery from the
effects of past dumping) were assessed at the level of the whole Union
production for all Union producers, on the basis of the information collected
from the Union industry, the review request as well as publicly-available
statistics; 
–              
the microeconomic indicators (stocks, average
unit prices, wages, profitability, return on investments, cash flow, ability to
raise capital and investments) were assessed at the level of the sampled Union
producers on the basis of the information they submitted. 
(154)   One sampled Union producer
divested one of its production facilities in June 2010. The latter was acquired
by another Union producer. Since the analysis of macro-economic indicators is
based on data collected from all Union producers the divestment had no impact
on the scope or individual indicators of the injury analysis. 
(155)   As a
preliminary point to the analysis it should be explained that certain global
economic events in late 2010 and early 2011 had an impact on the situation on
the Union market, in particular on the prices and sales volumes of the like product. In this period the cotton supply fell
resulting in an increased demand for polyester fibre on the Asian market. PET
and polyester fibre are largely dependent upstream on the same raw material,
i.e. purified terephthalic acid (PTA). The increased demand for polyester fibre
resulted in insufficient supply of PTA, pushing the prices of PET up. Since the
producers of PET in the Middle East also depend on PTA from Asia, this caused
sudden fall in imports of PET in the Union. At the same time, the main PTA
suppliers in the Union declared a 'force majeure' resulting in
additional restrictions of the domestic PET production.
7.           Comments of the parties
(156)   Some parties challenged the
validity of the injury analysis on the grounds that it was based on deficient
information, which in turn also affected the rights of defence of interested
parties. In particular, the below-mentioned arguments were raised.
(157)   Some parties claimed that
the information collected from Union producers did not comply with the
instructions for completion of the questionnaire, which requested data from
different companies not to be aggregated. It was therefore claimed that the
collected information was inaccurate and incomplete given that the reported
figures were aggregated per sampled entity. It is to be noted that the information
was duly collected and verified on-spot. The information collected was found to
provide sufficiently accurate picture of the Union industry and therefore the
above-mentioned claim had to be rejected. Following disclosure the parties
reiterated their claim. No new arguments or evidence were presented. Same
parties reiterated their claim that the data provided by one sampled company
were incomplete as they did not relate to the entire group but selected entity
within the group. This comment was addressed at the sampling stage as explained
in recital (20) above.
(158)   The same parties argued that
the Commission attempted to fix the claimed insufficiencies of the collected
information by sending additional questionnaires. In this respect it should be
clarified that the Commission indeed sent additional questionnaires, but
addressed them only to the non-sampled Union producers in order to collect
information on macro-economic indicators relevant to the injury assessment
therefore this was done to supplement the information provided by the sampled
Union producers. Following disclosure some parties reiterated the claim without
bringing any new arguments or presenting new evidence. The claim of the parties
was therefore dismissed. 
(159)   In addition, the same
parties also claimed that the information provided by the sampled producers was
also contrary to obligations in Article 19 of the basic Regulation because
information which was not confidential in nature had been provided as
confidential information and thus excluded from the open file. In this respect
it is to be noted that the information was classified as limited in line with
the request of the submitting party. Upon the request of interested parties the
confidentiality status of the submitted information was reconsidered and where
appropriate, the information was reclassified as open for inspection by
interested parties after consultation and approval of the companies concerned.
Also this claim was therefore dismissed.
(160)   Some parties argued that the
methodology used to assess injury was in violation of Article 11(9) of the
basic Regulation because while the injury determination carried out in the
original investigation concluded in 1999 was based on cumulative assessment of
imports from six countries, the current assessment does not include imports
from South Korea which was claimed to be the largest supplier to the Union and
the country with largest export capacity and lowest export prices as compared
to other countries concerned by the present review.
(161)   In this context it is to be
noted that under the expiry review concluded in 2007 the non-dumped imports
from South Korea were already decumulated given that it was found that not all
conditions of Article 3(4) of the basic Regulation were met in respect of these
imports. Moreover, it is noted that the current review does not cover the
imports from Korea as the measures against South Korea has expired. Finally, it
is considered that there is no change in methodology since the cumulative
assessment is used under the current review for the imports from all the
countries that meet criteria for such assessment in accordance with Article
3(4) of the basic Regulation. The argument of the parties has to be therefore
dismissed. 
8.           Macroeconomic indicators
8.1.        Production
(162)   In
line with the loss of market share by the Union industry (discussed in recital (164)
below) the Union production decreased by 11% between 2008 and the RIP. The
decline of the Union production was only interrupted in 2010 when it raised in
comparison to 2009 but remained nevertheless 4% below its level of 2008. It
further decreased in the RIP. 
 Table 7 
 Total Union production 
   || 2008 || 2009 || 2010 || RIP 
 Production (tonnes) || 2,327,169 || 2,107,792 || 2,239,313 || 2,068,717 
 Index (2008=100) || 100 || 91 || 96 || 89 
 Source: Questionnaire replies, review request ||   ||   
8.2.        Production capacity and
capacity utilisation
(163)   The production capacity of
the Union industry decreased by 23% between 2008 and the RIP. This trend
relates to the closure of several manufacturing facilities which was partly
offset by the launch of new factories. 
(164)   Capacity utilisation
increased from 75% in 2008 to 86% in the RIP. Increased capacity utilisation is
to be seen in the context of the restructuring efforts of the Union industry
explained in recital (124) above. 
 Table 8 
 Production capacity and capacity utilisation 
   || 2008 || 2009 || 2010 || RIP 
 Production capacity (tonnes) || 3,118,060 || 2,720,326 || 2,625,244 || 2,393,516 
 Index || 100 || 87 || 84 || 77 
 Capacity utilisation || 75% || 77% || 85% || 86% 
 Index || 100 || 104 || 114 || 116 
 Source: Questionnaire replies, review request 
8.3.        Sales volume
(165)   The sales volume of the
Union industry on the Union market followed the same development as production,
with a contraction of 6% over the period considered. 
 Table 9 
 Total sales of the Union industry in the Union 
   || 2008 || 2009 || 2010 || RIP 
 Sales (tonnes) || 2,288,283 || 2,047,305 || 2,169,423 || 2,160,807 
 Index || 100 || 89 || 95 || 94 
 Source: Questionnaire replies, review request 
8.4.        Market share
(166)   After
an initial drop of 13% in 2009, the Union industry regained part of the market
share lost by UAE, South Korea, Iran and Pakistan despite increasing volumes of
imports from India, Oman and other third countries (Russia, Mexico and Saudi
Arabia) over the same period. Overall, the market share of the Union industry
declined by 3% during the period considered. 
 Table 10 
 Union industry market share 
   || 2008 || 2009 || 2010 || RIP 
 Union industry market share || 80% || 70% || 74% || 77% 
 Index || 100 || 87 || 93 || 97 
 Source: Questionnaire replies, review request and Eurostat 
8.5.        Growth
(167)   The market stagnated over
the period considered. There was no growth for the Union industry to benefit
from, on the contrary, despite the restructuring efforts, the Union industry
lost further market share to the growing imports, in particular, from the
countries without any measures. The slight decline of the consumption in the
RIP is to be seen against the background of temporary shortage of the raw
material (PTA) in the Union as well as in the global market.
8.6.        Employment and productivity
(168)   The employment level of the
Union industry showed a decrease of 41% between 2008 and the RIP. The decline
was constant over the period concerned, including in 2010 when the production
increased (see recital (161) above). In the light of the growing productivity,
this drop is a reflection of the restructuring efforts by a number of Union
producers.
(169)   Productivity
of the Union industry’s workforce, measured as output (tonnes) per person
employed per year, increased by 50 % in the period considered. This reflects
the fact that production decreased at a slower pace than the employment level
and is an indication of increased efficiency by the Union industry. This is
particularly obvious in 2010 when production increased while the employment
level decreased and the productivity was 37 % higher than in 2008.
 Table 11 
 Employment and productivity 
   || 2008 || 2009 || 2010 || RIP 
 Number of employees || 2,060 || 1,629 || 1,449 || 1,218 
 Index || 100 || 79 || 70 || 59 
 Productivity(tonne/employee) || 1,130 || 1,294 || 1,545 || 1,698 
 Index || 100 || 115 || 137 || 150 
 Source: Questionnaire replies, review request ||   ||   
8.7.        Magnitude of the actual
dumping margin 
(170)   As concerns the impact on
the Union industry of the magnitude of the actual dumping margin of imports
from the countries concerned, given the price sensitivity of the market for
this product, this impact cannot be considered to be negligible. It should be
noted that this indicator is more relevant in the context of the likelihood of
recurrence of injury analysis. Should measures lapse, it is likely that the
dumped imports would come back at such volumes and prices that the impact of
the magnitude of the dumping margin would be significant.
8.8.        Recovery from the effects
of past dumping
(171)   While the indicators
examined above show some improvement in some economic indicators of the Union
industry, further to the imposition of definitive antidumping measures in 2000,
they also provide evidence that the Union industry is still vulnerable.
9.           Microeconomic elements
9.1.        Stocks
(172)   The level of stocks was 24%
higher in the RIP in relation with their levels in 2008. However, the stocks have remained at previously
established levels in relation to the output, i.e. between 5% and 6%. 
 Table 12 
 Stocks 
   || 2008 || 2009 || 2010 || RIP 
 Closing stocks || 51,495 || 54,808 || 54,314 || 64,069 
 Index || 100 || 106 || 105 || 124 
 Source: Questionnaire replies 
9.2.        Price development
(173)   As
regards the price development, after an initial drop in 2009 (-16%), mainly
caused by the economic crisis, the prices came close to 2008 level in 2010.
This was followed by a
sharp rise of the average unit price in RIP, bringing the increase over the
period considered to 25%. 
(174)   The
sudden price increase in the RIP should be read in the context of the
unexpected market developments at the end of 2010 and in the first quarter of
2011 on the cotton market. As mentioned above (recital (153) above), the record
cotton prices caused a switch to polyester fibre that competes for the same raw
material as PET. The increased demand for the raw material, in particular, PTA,
pushed up the prices of PET in Asia and Middle East with a spill over effect on
the prices of PET in the Union. The price increase in the Union at that time
was further amplified by the short term scarcity of PTA in the Union due to the
declared force majeure of one of the PTA producers in the Union. 
 Table 13 
 Unit Sales Price in the Union 
   || 2008 || 2009 || 2010 || RIP 
 Unit Sales Price in the EU (EUR/tonne) || 1,066 || 891 || 1,045 || 1,330 
 Index (2008 = 100) || 100 || 84 || 98 || 125 
 Source: Questionnaire replies ||   ||   ||   ||   
9.3.        Factors affecting sales
prices
(175)   The
sales prices of PET normally follow the price trends of its main raw materials
(mainly PTA and monoethylene glycol — MEG) as they constitute up to 90 % of the
total cost of PET. PTA is an oil derivative, the price of which fluctuates on
the basis of prices of crude oil. This causes high volatility of the prices of
PET.
(176)   In addition, PET competes
for the same raw material as polyester fibre, the production of which relies to
the same extent as PET on the availability of PTA. Since polyester fibre is an
alternative to cotton for the textile industry, the price of PET is therefore
also sensitive to the developments on the cotton market.
9.4.        Wages
(177)   The average wages decline by 7% over the period considered. This reduction
occurred in the RIP and amplified the productivity gains observed see recital (167)
above. 
 Table 14 
 Wages 
   || 2008 || 2009 || 2010 || RIP 
 Wages (average per person) || 54,512 || 56,014 || 54,876 || 50,784 
 Index || 100 || 103 || 101 ||  93 
 Source: Questionnaire replies 
9.5.        Profitability and return on
investment
(178)   The
profitability and returns on investment improved significantly between 2008 and
RIP. The profit on sales in the Union market increased from -7.9% in 2008 to
5.3% in RIP while return on investment improved from -9.6% to 10.6%. 2008 was
affected by the particularly poor performance of one Union producer.
Nevertheless, the improvement of the financial situation of the Union industry
in 2009 and 2010, when prices were below their 2008 levels, evidences the loose
relationship between prices and profitability. On the contrary, the improvement
of profitability appears closely correlated to the improvements in capacity
utilisation and to the productivity gains observed above. 
(179)   Thanks to the global market
developments at the break of 2010/2011, coupled with the restructuring efforts
and efficiency gains described above, the Union industry was able to improve
its profitability in 2010 and to reach the level of 5.3% in the RIP. 
(180)   One interested party argued
that this development was unexpected and extraordinary, not to be considered
representative of the overall situation of the Union industry. 
(181)   In
this respect it is to be noted that the Union industry was able to benefit from
the PET price increase at the end of 2011 and beginning of 2012 as it had fixed
the PTA price before the described market events occurred. Based on the
statistical sources concerning the post-RIP development, submitted by the parties,
the profit margins of PET producers went substantially down in 2012. This
confirms that the profitability in 2011 (RIP) was indeed largely influenced by
unexpected and temporary global economic events (recital (153) that are
unlikely to recur and cannot be considered permanent and representative of the
situation of the Union industry.
 Table 15 
 Profitability and Return on Investments 
   || 2008 || 2009 || 2010 || RIP 
 Profitability Union sales || -7.9% || 1.6% || 4.8% || 5.3% 
 Index || 100 || 221 || 261 || 267 
 Return on investment || -9.6% || 2.3% || 8.9% || 10.6% 
 Index || 100 || 224 || 292 || 310 
 Source: Questionnaire replies 
9.6.        Cash flow and ability to
raise capital
(182)   The cash flows improved
significantly over the period reflecting the recent improvement of the profitability of the Union Industry. 
 Table 16 
 Cash flow 
   || 2008 || 2009 || 2010 || RIP 
 Cash flow (EUR) || - 59,419,394 || 40,940,883 || 96,614,649 || 103,761,169 
 Index (2008 = 100) || 100 || 269 || 363 || 375 
 In % of turnover || -5.9% || 4.5% || 8.3% || 7.5% 
 Index (2008 = 100) || 100 || 176 || 242 || 229 
 Source: Questionnaire replies 
(183)   There were no particular
indications that the Union industry would have encountered difficulties in
raising capital, mainly as the Union producers are incorporated in larger groups.
9.7.        Investments
(184)   The level of investments was
overall reduced by 35% over the period considered. The initial investments made
in 2008 were cut sharply in 2009 and have not fully recovered since. 
 Table 17 
 Investments 
   || 2008 || 2009 || 2010 || RIP 
 Investments (EUR '000) || 72,341,598 || 5,404,705 || 15,994,659 || 47,217,003 
 Index || 100 || 7 || 22 || 65 
 Source: Questionnaire replies 
10.         Conclusion on the situation
of the Union industry
(185)   The analysis of the
macro-economic data showed that the Union industry decreased its production and
sales volumes during the period considered. The Union industry's market share
has not fully recovered since the initial drop in 2009 and it showed an overall
decrease of 3 percentage points over the period considered (to 77% in RIP). The
decline in employment and capacity is a result of the on-going restructuring
and is to be seen in the context of increasing capacity utilisation and
productivity.
(186)   At the same time most of the
relevant micro-economic indicators showed signs of improvements. The
profitability, return on investment and cash flow rose significantly, in
particular in 2010 and in the RIP. The investments, on the other hand,
plummeted in 2009 and have not recovered since.
(187)   Overall, the economic situation of the
industry has improved. However, these improvements are
relatively recent and to some extent based on
unforeseen and temporary market
developments at the break of 2010/2011 (see recital (153) above). This appears
to be supported by the information available on the
developments of the margin of the Union industry in 2012 (see recital (179) to above)
that show a decline as compared to RIP.
(188)   In view of the above
analysis, the situation of the Union industry has improved and no material
injury appears to be taking place. Nevertheless, despite apparent positive trends
and the significant restructuring efforts, the Union industry is still fragile.

(189)   Following
the disclosure some parties contested the conclusion
that the Union industry was still fragile claiming that the Union industry was
in a healthy state and has substantially transformed since 1999. It is noted
that as explained above (recital (185)), despite the overall improvement and
consolidation, not all economic indicators developed positively over the period
considered. For example, production and sales volumes as well as market share decreased.
Moreover, the improvements were relatively recent and with a fall of
profitability in 2012 appeared short-lived. On this basis it was considered
that while no material injury proved to exist in RIP, the Union industry was
still in a fragile state. The argument was therefore rejected.
(190)   Following the disclosure
some parties contested the use of data referring to period beyond RIP for the
analysis of the economic situation of the Union industry. In response to this
claim it is confirmed that the situation of the Union industry was assessed for
the period considered and on this basis no material injury was established.
However, the development of profitability of the Union industry beyond RIP is
in this case relevant mainly in the context of the extraordinary nature of the
global market developments at the break of 2010/2011. It also illustrates the
volatility of the profit levels typical for this sector (see recital (260)
below). The argument is therefore rejected.
F. LIKELIHOOD OF RECURRENCE OF
INJURY 
1.           Impact of the projected
volume of imports and price effects in case of repeal of measures
(191)   The
investigation has shown that the imports from India, Taiwan and Thailand
continued to be dumped and there are no indications that the dumping would be
reduced or discontinued in the future. 
(192)   A prospective analysis of
the likely export volumes from these three countries revealed that, given the
excess capacity available for exports (see recitals (55), (97) and (118)
above), the domestic prices as well as price levels on the third countries
markets and in the Union together with the attractiveness of the Union market
the imports from India, Taiwan and Thailand are likely to increase to the
levels likely to cause injury above those reached in RIP if the measures were
lifted. With the planned capacity expansions in these three countries, the
combined excess capacity available for exports is estimated to reach between
2.3-2.8 million tonnes, i.e. over 83-87% of the Union consumption (in RIP) in
the near future. 
(193)   As regards the expected
price development of the imports from the three countries, the imports from these countries are expected to
enter at dumped prices, should the measures against India, Taiwan and Thailand
be lifted. Also, as the exporters from these countries will have to compete
against low priced imports from other third countries, it cannot be excluded
they would have to lower their prices further in order to increase their market
share on the Union market. 
(194)   On this basis, the Union
industry is likely to be exposed to substantial volumes of imports from India,
Taiwan and Thailand at dumped prices below its average prices, undermining its
recently improved economic situation. As a result, the material injury is likely to recur should the
measures against India, Taiwan and Thailand be lifted.
2.           Production capacity and excess
capacity available for exports of countries concerned
(195)   As indicated above, the
exporting producers in India, Taiwan and Thailand have the potential to
increase their export volumes to the Union market. All three countries had a
significant growth in their production capacity over the period considered.
According to market forecasts, it is expected that the gap between domestic
consumption and production capacity will grow to between 2.3 to 2.8 million
tonnes in the near future. Such excess capacity available for exports in the
near future has to be considered as significant as it represents over 83-87% of
the Union consumption (in RIP). 
(196)   Therefore, although the
imports from the three countries to the Union were relatively low, a risk exists that significant export volumes could be
diverted to the Union market should the measures be lifted. 
(197)   Following the disclosure
some parties claimed that the likelihood of recurrence of injury based on
excess capacity available for exports has to include the assessment of the
growth in demand in the export markets of India and Taiwan. The same parties
stated that Thailand was irrelevant because it is controlled by one group
present on the Union market. The claim regarding the assessment of excess
capacity available for exports is dismissed for the reasons explained in
recitals (58) to (59) and (101) to (102) above. The relevance of the statement
made regarding the situation on the Thai market was not substantiated. For this
reason the claims were dismissed.
3.           Loss of export markets 
(198)   The trade defence measures
against imports of PET from India, Taiwan and Thailand are currently in place
in Turkey. Furthermore, measures against the imports from India and Taiwan exist in South Africa and measures against
Thailand exist in Malaysia. 
(199)   Following the disclosure
some parties contested the conclusions regarding the loss of export markets for
India and Taiwan. It was claimed that both markets were marginal export market,
therefore no significant export volumes from these markets could be redirected
to the Union if the measures were lifted. It is noted that mere existence of the
trade defence on some markets excludes any meaningful comparison of the
relative importance of the markets with and without measures for a given
country. In addition, contrary to the claim, it was not considered that the
export volumes from these markets would be redirected to the Union market.
Instead, The Commission’s assessment is that the trade defence measures in
place in Turkey and South Africa against imports from India and Taiwan potentially
reduce the markets that could be available for Indian and Taiwanese exports.
Moreover, should the claim that Turkey and South Africa are unimportant export
markets be true, the increasing excess capacity available for export in India
and Taiwan implies a likelihood of increased exports to the Union even in the absence
of the trade defence measures imposed by Turkey and South Africa. (see recital
(59) above). This argument was therefore rejected. 
(200)   The existence of trade
defence measures in other third countries is also an indication that the
pricing behaviour of India, Taiwan and Thailand is likely to replicate on the Union market.
4.           Attractiveness of the
Union market
(201)   The Union market is
attractive in terms of its size and price, being the third largest market in
the world, with a structural
need for imports and higher prices as compared to other markets. In case of India, Taiwan and Thailand, the import
prices to the Union tend to be higher than the prices to other third countries,
which points to the attractiveness of the Union market for the exports from
these three countries. 
(202)   The
attractiveness of the Union market is also confirmed by the fact that the Union
industry lost market share to the rising imports from the countries without measures. This is in particular true
in case of South Korea that significantly increased its exports to the Union
market in 2012 after the measures against the country have expired.
5.           Other factors
(203)   The impact of imports from other third countries with measures, on the
situation of the Union industry was considered low, due to the low import
volumes and substantial decrease of their market share in the RIP. 
(204)   The
volume of imports from
other third countries without any measures increased during the period considered, however, the respective average
import price remained close to the Union industry average price. Therefore, the
impact of the imports from these countries on the situation of the Union
industry is considered limited. 
6.           Captive market 
(205)   Following the disclosure some parties claimed that due
to the vertical integration between PET producers and converters, a
considerable part of PET was sold for captive use that did not compete with
imports. It was also claimed that share of captive market was significant,
affecting the results of the analysis.
(206)   Based on the information
collected at the level of sampled Union producers the proportion of captive
sales was found not to be significant (below 10%). It has to be underlined that
the parties in question expressed the presence of PET producers in the
packaging business in terms of the installed production capacity of PET and not
in terms of their market share in packaging. Therefore, the claim on
significant proportion of captive use was found unsubstantiated. As regards the
price levels, the prices of related and unrelated sales were found to be within
the same range. 
(207)   On
these grounds it was concluded that the distinctive analysis of the impact of
captive sales was not necessary and the claims of the parties were rejected. 
7.           Comments of the parties
(208)   Some parties argued that the
injury due to imports from India did not exist during the RIP as evidenced by
the relative economic health and profits of the Union industry. It has to be
note that, indeed, no continuation of injury has been established in the
present case, and therefore the claim of the parties corresponds to the
investigation findings. 
(209)   Some parties claimed that
other factors, such as structural inefficiencies of the Union industry and lack of investment as well as seasonal and
conjunctural factors (e.g. bad weather, economic crises) could have an impact
on the situation of the Union industry. Concerning the first point raised, it
is to be noted that the restructuring of the Union industry is already taking place and the efficiency gains
obtained suggest that the claim of the parties is unfounded. As to the
conjunctural factors, although the economic crises did have an impact on the
situation of the Union industry in 2009, as mentioned above, the relevant
effects do not appear to be currently present anymore; concerning the effect of
bad weather, this could partly explain the shrinking consumption in the RIP,
however, on the one hand, its alleged impact on the situation of the Union
industry has not been substantiated and, on the other hand, the slight drop in
2011 appears to be rather linked to temporary scarcity of raw materials due to
the global market developments in 2011. Therefore, none of these claims is
justified in view of the findings of the investigation.
(210)   Furthermore,
some parties argued that the recurrence of injury in this case is unlikely if
the measures were to expire, given that thanks to its structure (concentration
and vertical integration) the Union industry is shielded from the effects of
the imports. Moreover, it has been argued that a shift to imported PET is neither desired nor possible in the
near future, in particular as purchasing contracts and policies as well as
homologation process of large brand owners (downstream users) makes changes of
PET suppliers cumbersome. It is to be noted that based on the findings of the
investigation the Union industry continued to lose market share to the benefit
of imports during the period considered; this shows, on the one hand, that the
Union industry is not shielded from the effects of the imports and, on the
other hand, that the switch to imports is not hypothetical but is actually
already taking place. The arguments had to be therefore dismissed. 
(211)   Following the disclosure some parties reiterated the claim
that the Union industry was shielded from the potential competition of imports
due to its structure. Firstly, as regards the claim on dominant position of one
of the producing groups in the Union market controlling five producers, it is
noted that the Union market is an open market with other eight producers
operating outside this group and growing competition of imports from third countries
– with and without any measures in place. Secondly,
concentration is typical for this type of business based on commodity product
that relies on economies of scale for its competitiveness. Thirdly, no price
leader was found to exist on the Union market. Finally, parties reiterated that
the impact of the imports from the three countries concerned in the light of the
vertical integration of some Union producers with the packaging industry or
with producers of PTA was not analysed. As established in recital (207) above these
aspects were indeed analysed and found unsubstantiated. Moreover, the
verification of companies concerned by vertical integration with producers of
raw materials confirmed there was no comparative advantage as the transfers were
made at market price. Based on the above, the claim that the Union industry
would be shielded from the competition was rejected. 
(212)   Next, some parties argued
that no elements support a conclusion that the Indian, Taiwanese and Thai
export capacity may target the Union market at ‘cheap prices’ given that (i)
the domestic demand in India, Taiwan and Thailand is growing and is expected to
continue to grow; (ii) PET in excess of domestic consumption exists, yet
competition in export markets has not resulted in exports at dump or otherwise
abnormally low prices; (iii) increases in production capacity in Asia responds
to the increase in demand expected worldwide. It is to be noted that the
findings in the present investigation demonstrate that the projected growth of
capacity shows a growing excess of the production capacity over domestic
demand. In addition, the prices of India, Taiwan and Thailand on third markets
were lower as compared to their import imports prices to the Union. Based on
the findings described in recitals (60), (104) and (120), above it is likely
that the dumped imports from the countries concerned will target the Union
market at volumes likely to cause injury and below the average price of the
Union industry should the anti-dumping measures be allowed to lapse. On these
grounds the arguments of the parties are dismissed.
(213)   Finally, some Taiwanese
producers argued that for the reasons spelt out in recitals (101) to (103) above,
there was no likelihood of recurrence of injury due to the imports of PET
originating in Taiwan. As noted in the respective recitals, for reasons of
non-cooperation, none of the
claims made in this respect could be verified. Moreover, the findings described
in recitals (86) to (98) above point to the contrary. On these grounds the
allegations made by the parties in question have to be rejected. 
(214)   Following the disclosure one
party claimed that the Commission failed to include the imports from South
Korea in the injury assessment. Contrary to this claim, the imports from South
Korea were included in the injury analyses (see recital (202) above) and were
analysed together with the imports from other third countries without any measures
(see recital (148) above). Contrary to the claim, South Korea was not the main
exporting country to the Union (RIP). In addition, it is noted that although
South Korea represented substantial part of imports, its import volumes
declined significantly over the period considered. The claim of the party was
therefore rejected. 
8.           Conclusion on the
recurrence of injury
(215)   On
the basis of the foregoing it is concluded that in respect of India, Taiwan and
Thailand substantial volumes of dumped imports likely to cause injury from would
be redirected to the Union should anti-dumping measures be repealed. Thanks to continued dumping, the prices of
these imports would most likely undercut the Union industry prices. Also, it
cannot be excluded that the prices of imports from India, Taiwan and Thailand would
decrease even further should the exporting producers from the countries
concerned try to increase their market shares. Such price behaviour, coupled
with the ability of the exporting producers in India, Taiwan and Thailand to sell significant
quantities of PET on the Union market, would in all likelihood have the effect
of reinforcing the price pressure, with an expected negative impact on the
situation of the Union industry.
(216)   During the period considered
the situation of the Union industry improved, in particular in terms of
productivity and capacity utilisation and profit margins reached in the RIP at
the level close to the target profit established in the original investigation.
It can therefore be concluded that the Union industry, albeit still in a
fragile situation, did not suffer material injury during the RIP. However,
given the likely substantial increase of dumped imports from India, Taiwan and
Thailand which are likely to undercut the Union industry’s sales prices, it was
concluded that the situation would very likely deteriorate and the material
injury would recur, should measures be allowed to lapse.
(217)   As far as imports from
Malaysia and Indonesia are concerned, given, in particular, the lack of
significant excess capacities in the near future, no likelihood of continuation of dumping was established.
Therefore, it is concluded that lifting the measures against Malaysia and
Indonesia would in all likelihood not result in the recurrence of injury to the
Union industry.
(218)   Following the disclosure one
party invoked that the extension of the duties against Thailand was
discriminatory in comparison with Malaysia and Indonesia given that all three
countries were in a similar situation. This argument was rejected considering
that while excessive capacity was found in case of Thailand and thus likelihood
of recurrence of dumping was found, no such findings were established in case
of Malaysia and Indonesia. 
G. UNION INTEREST
(219)   In accordance with Article
21 of the basic Regulation, it was examined whether the maintenance of the
existing anti-dumping measures would be clearly against the interest of the
Union as a whole. The determination of the Union interest was based on an
appreciation of all the various interests involved. All interested parties were
given the opportunity to make their views known pursuant to Article 21(2) of
the basic Regulation. 
(220)   It should be recalled that
the adoption of measures was considered not to be clearly against the interest
of the Union neither in the original investigation nor in the last expiry
review. Furthermore, the analysis in the last expiry review was carried out in
the situation where the measures had been already in place and thus the
assessment took into account any undue negative impact on the parties concerned
by the measures in question. 
(221)   On this basis, it was
examined whether despite the conclusions on the continuation of dumping and
likelihood of recurrence of injury, any compelling reasons existed which would
lead to the conclusion that it is clearly not in the Union interest to maintain
measures in this particular case.
9.           Interest of the Union
industry
(222)   The continuation of the anti-dumping
measures on imports from India, Taiwan and Thailand would help the Union
industry to continue the on-going restructuring and enhance its only recently
improved economic situation, as it would help avoiding that the Union industry
is exposed to the substantial volumes of dumped imports from India, Taiwan and
Thailand which the Union industry could not withstand. The Union industry would
therefore continue to benefit from the maintenance of the current anti-dumping
measures. 
(223)   Accordingly, it is concluded
that the maintenance of anti-dumping measures against India, Taiwan and
Thailand would be in the interest of the Union industry. 
10.         Interest of unrelated
importers in the Union
(224)   None of the unrelated
importers cooperated in the present review. 
(225)   Despite the measures in
force the imports from India, Taiwan and Thailand continued and nearly doubled
over the period considered. The imports from other third countries without any
measures were also available and reached significant market share during the
RIP (see recital (147) above). Therefore, even with the measures in place,
importers had access to alternative sources of supply. 
(226)   Bearing in mind that there
is no evidence suggesting that the measures in force considerably affected importers,
it is concluded that the continuation of measures will not be against the
interest of the Union importers. 
11.         Interest of the suppliers
of the raw materials in the Union
(227)   The raw material for the
manufacturing of the product concerned is PTA/MEG. Two out of five known
suppliers of raw material (one supplier of PTA and one of MEG) cooperated with
the investigation by submitting the questionnaire reply. Both suppliers of the
raw material expressed their support for the continuation of the measures. 
(228)   The investigation showed
that the cooperating PTA producer represented a substantial part of the PTA
purchases of the sampled Union producers in the RIP. Given that PTA has no
other use in the Union than the production of PET, it is reasonable to assume
that PTA producers are largely dependent on the PET industry. 
(229)   As to the cooperating MEG
supplier, MEG represented relatively small part of its total turnover in the
RIP. With regard to MEG, PET is not its only or major possible application and
MEG producers are less dependent on the situation of the PET industry.
Consequently, it is considered that the continuation of measures against dumped
imports of PET from India, Taiwan and Thailand would have a positive, although
likely limited, impact on the suppliers of MEG. 
(230)   It was alleged that the
suppliers of raw material do not depend on the Union producers of PET; in
particular, as it was argued that two out of four sampled Union producers were
in fact importing the raw materials.
(231)   In relation to this claim
the investigation has shown that the imported material was predominantly MEG
that can also be used for other than PET applications. No indications were
gathered showing more than negligible imports of PTA to the Union. Therefore, this
claim does not affect the conclusions taken as regards the dependency of PTA
producers on PET production in the Union. 
(232)   Consequently, it is
considered that the continuation of measures against dumped imports of PET from
India, Taiwan and Thailand would benefit the PTA producers and also, although
to a lesser extent, the MEG suppliers. As a consequence the continuation of
measures against imports from India, Taiwan and Thailand would not be against
the interest of the raw material suppliers.
(233)   Following the disclosure
some parties claimed that PTA was exported and therefore the PTA producers were
claimed not to be dependent on Union industry. No evidence supporting this
claim was presented. Therefore the argument of the parties was dismissed as
unsubstantiated.
(234)   Moreover, the same parties
claimed that lifting the measures will not have any impact on the PTA producers
as the cooperating users will allegedly not switch to imports and will continue
to source PET from the Union industry. Therefore, the level of PTA consumption
in the Union will remain the same. Based on the findings of the investigation
the Union industry continued to lose market share to the benefit of imports
during the period considered. This shows that the switch to imports is not
hypothetical (see recital (164) above). The argument of the parties was
therefore dismissed.
12.         Interest of PET recycling
industry
(235)   The Union industry argued
that the situation of the recycling industry depends on the sustainable price
of virgin PET (non-recycled PET) on the Union market. Their claim was
substantiated by a press release of an association of plastic recyclers in
Europe, according to which a potential lifting of the measures on virgin PET
could further worsen the situation of the recycling industry.
(236)   Some interested parties
contested that the situation of the recycling industry depends on the
sustainable price of virgin PET on the Union market arguing that the prices of
virgin PET and recycled PET were unrelated. It was claimed that recycled PET is
mainly used for the production of polyester fibre and therefore cannot be
linked to the price developments of virgin PET. In addition, it was noted that
the recycled PET is entirely supported by bottle-fillers and thus the industry does
not depend on PET producers. Finally, it was also noted that recycling industry
did not come forward as an interested party in the present investigation.
(237)   Since the recycling industry
did not come forward in this investigation, none of the above-mentioned
allegations could have been verified against the actual figures. Therefore, it
is considered that in overall the measures in force would not be against the
interest of the recycling industry in the Union.
13.         Interest of the users
(238)   The product concerned is
predominantly used to produce bottles for water and other soft drinks. Its use
for the production of other packages (foodstuff, sheets, etc.) remains
relatively limited. Bottles of PET are produced in two stages: (i) first a
pre-form is made by mould injection of PET, and (ii) later the pre-form is
heated and blown into a bottle. Bottle making can be an integrated process
(i.e. the same company buys PET, produces a pre-form and blows it into the
bottle) or limited to the second stage (blowing the pre-form into a bottle).
Pre-forms can be relatively easily transported as they are small and dense,
while empty bottles are unstable and due to their size very expensive to
transport.
(239)   On this basis, two main
groups of downstream users have been established for studying of the impact of
the measures in force: (i) converters and/or bottle makers, converting PET
chips into pre-forms (or bottles) and selling them for downstream processing;
and (ii) bottlers, filling (and blowing) the bottles out of pre-form; this
group represents mostly the producers of mineral water and soft drinks. The
bottlers are often involved in the PET business either via integrated bottle
making operations or via tolling agreements with subcontracted converters
and/or bottle makers for whom they negotiate the PET price with the producer
(soft tolling) or even buy the PET for their own bottles (hard tolling). 
(240)   Seventeen
(five converters and twelve bottlers) cooperated in the investigation and provided
information collected by the questionnaire. The cooperating converters
represented 22.7% and bottlers 13% of the total consumption of PET in the
Union. The replies of bottlers came from various branches of the multinational
companies (known as brand-owners). 
(241)   In total, all independent
users that came forward expressed their opposition against the measures.
However, one user, vertically integrated with a PET producer, came forward
expressing its support for the continuation of the measures on the grounds that
the measures in force help to ensure stability of supply of PET on the Union
market and to establish a fair competition. 
(242)   It has been established that
the cooperating users sourced PET predominantly from the Union producers and
only a small proportion was sourced from imports. The imports from India,
Taiwan and Thailand represented roughly half of these imports and thus a
minimal proportion of the sourced PET. Nevertheless, the imports from other
third countries without any measures were also available and reached
significant market share during the RIP (recital (147). Therefore, even with
the measures in place, the users had access to alternative sources of supply. 
14.         Arguments of the users'
industry
(243)   Users claimed to be
significantly affected by substantial increases in the price of PET in recent
years which cannot be transferred to retailers and consumers in the current
economic environment. It is claimed that these price increases have resulted
from accumulation of many years of application of trade defence measures, which
have protected the Union producers from the competition of imports at the time
when the Union PET industry became more concentrated and integrated. As a
result, the users claimed that the measures in place, through their alleged
impact on the price of PET, are responsible for the deterioration of the
downstream industry's employment, R&D and competitiveness on export
markets, with a more acute impact on SMEs. It was also claimed that the job
losses due to the measures in force exceeded the number of people currently
employed by the Union PET industry.
14.1.      Price sensitivity and cost
structure of the users
(244)   As
regards the PET price sensitivity of converters, PET was found to represent
around 80% of the total costs. PET is therefore considered a critical cost
component for this type of activity. In addition, the converters' industry was
found to be rather fragmented with a relatively weak negotiating position
against large bottlers and inherent structural problems typical for the commodity
based industry. As a result, this sector showed an increasing tendency to
vertical integration with bottlers and the use of tolling agreements on the
basis of which the conversion fees are guaranteed and the PET price is
ultimately negotiated and paid by the bottlers. It is estimated that
substantial part of PET purchases on the Union market is controlled directly by
the large bottlers. Since the contracts for pre-forms often include a mechanism
for reflecting the variation of PET prices, the convertors are increasingly
neutral towards the developments of PET prices. 
(245)   Following the disclosure
some users contested the conclusion on the increased use of tolling and price
formulas. The information in the file confirmed existence of such trend. The claim
was therefore dismissed.
(246)   It was claimed that the
measures in place would not cause damage to the converters, if similar measures
were applied on imports of preforms into the Union. It was argued that in the
areas close to the Union border with third countries, in which there are no
measures against imports of PET from India, Taiwan and Thailand there are
incentives to delocalise the production of preforms and import them free of
anti-dumping measures on PET into the Union. It is acknowledged that to some
extent there is an economic rationale for this process to be happening.
However, given the transportation cost, the delocalisation is likely to occur
only within limited distances. In overall, the claimed negative impact of the
measures in question on some converters is therefore considered to be marginal.
(247)   As regards the PET price
impact on bottlers, based on the reported figures, the PET is estimated to
represent on a weighted average basis 9% of total costs of bottled soft drinks
and 12% of the total costs of bottled mineral water. This shows that PET is not
the main cost component for the bottling industry. 
(248)   In addition, the
investigation has established that PET was the preferred although not the
exclusive packaging material of bottlers. PET products represented 75% of the
turnover of water bottlers and 50% of the turnover of producers of soft drinks.
Furthermore, the investigation showed that contracts between many large
bottlers (brand owners) and PET producers were based on a formula whereby the
price was adjusted to reflect fluctuation of prices of raw materials for PET.
This confirms the existing negotiating power of the large and thus the most
representative bottlers over the conversion margin of the PET producers. 
(249)   Following the disclosure
some users reiterated their argument that PET is a basic cost component for
converters, soft drink and bottled water industries and the findings in this
respect were inaccurate and not based on the reported data. It is noted that
the situation of converters was analysed separately and this comment is in
their case unfounded (see recital (244) above). As regards the assessment of
the situation of the bottlers it is confirmed that the cost ratios established in
the investigation are based on the figures reported by the cooperating bottlers
following a methodology available to all parties. The established cost ratios were
in line with the findings of previous investigations concerning the same
product concerned[19]. The claims of the parties were therefore considered
unsubstantiated.
(250)   Following the disclosure
some users claimed that the essence of the company specific data and
information provided by them was not reflected in the analysis of the Union
interest. It is confirmed that the data was used as reported by the users in
their questionnaire replies. The calculation methodology was made available to
all parties concerned. On this ground the claim was rejected.
(251)   The investigation has also
established that based on the expected and/or desired decrease of PET prices
estimated by the verified bottlers themselves, lifting the measures would
result in negligible cost reduction for the bottlers. Based on these estimates
of PET price decrease and the established cost ratios, the respective cost
reduction was calculated to be within the range of 0.3-0.7% of the total costs
of the bottlers for their PET-related activities. 
(252)   Following the disclosure
some users disputed this conclusion arguing that any saving in costs would be
significant. Some users put forward new estimates in their submissions without providing
any new evidence. It is emphasised that the prospective savings are
hypothetical, as was also admitted by some users themselves. As regards the
converters, no quantification of prospective saving was put forward for this
segment. As regards the bottlers, it was considered that should the alleged PET
price decrease materialise, in the light of the costs structure of the
bottlers, saving within 0.3%-0.7% of total costs cannot be considered
'significant'. Since no new evidence was provided, the claim was dismissed as
unsubstantiated. 
(253)   It was claimed that some
bottled-water producers have inherent vulnerabilities stemming from legal
requirements imposed for the source water to be bottled at the source and
limited extraction volumes. The sector is being dominated by SMEs, which has an
impact on the cost structure of the companies in questions. Also, variations
have been observed in the price levels of final products across Member States
depending on the purchasing power of the local population. On these grounds it
is considered that the impact of an eventual decrease of PET prices, if the
measures were lifted, would be more pronounced for this part of the bottling
industry.
14.2.      Alleged premium prices and
profits of Union industry
(254)   Some parties alleged the
existence of premium prices and premium margins practised by PET producers in
the Union, claiming that these would be at the origin of the price increases in
2011. This claim was also supported by the comparison made between PET prices
and spread over the raw material in the Union to the situation on Asian market
and in the USA. It was claimed that this situation results from the
accumulation of trade remedies. 
(255)   It
is to be noted that the increase of the prices of PET in 2011, as well as its
decline in 2009, was a worldwide phenomenon driven by the evolution of the cost
of raw materials (see recital (153) above). Data submitted by the parties
systematically showed a very close correlation between the evolution of PET
prices in Europe, Asia and the USA. Nevertheless, there are indeed differences
in the prices of PET across the world which are related to various reasons, in
particular the specific cost structure in each region. As regards the argument
on existing premium margin in the Union, it is noted that even under
exceptional circumstances in late 2010 and beginning of 2011 the Union industry
has merely reached the profitability considered reasonable for this type of
industry. No evidence of premium profit was found. Therefore, the argument on
existing 'premium' prices and 'premium' margins on the PET in the Union that
are due to the existence of the measures in question has to be rejected. 
(256)   Following the disclosure some
parties reiterated their argument that the prices in the Union were unjustifiably
high reflecting the impact of accumulation of anti-dumping measures operating
in a market with concentration among Union producers, vertical integration and limited
production unable to satisfy the consumption. It was also claimed that the
price data also showed that the higher prices in the Union are not reflecting
the higher costs of raw materials. It is noted that the arguments on
concentration, vertical integration and production capacity of Union industry
were addressed in recitals (204) and (265) respectively. As regards the claimed
impact of these factors on the PET price in the Union it is recalled that the
PET price development is driven by the price of raw materials that account for
up to 90% of cost of PET (see recital (173 above). Also, the increase in PET
prices in 2010/2011 was a worldwide phenomenon (see recital (153) above). The
claims of the parties were therefore found unsubstantiated.
(257)   As regards the argument concerning
the gap between the Union PET price and prices in Asia and US, and in addition
to findings already stated in recital (255) above, it was found that the
difference in prices between US and Union market was volatile, yet moderate. Union
prices were not systematically higher as claimed. Union and Asian market were
found to be very different in terms of cost structures linked in particular to
the size of the market and economies of scale, access to the raw materials and
capacity. Therefore, comparing the average prices between these two markets was
not meaningful. The argument of the parties was therefore found
unsubstantiated.
(258)   Also, some parties claimed
that the prices in the Union reflect a higher spread over the cost of raw
materials as compared to US or Asia. The comparison of spreads follows the same
logic as comparison on prices on various regional markets with the difference
that the variations of prices of raw materials between various regional markets
are accounted for. Nevertheless, the existing structural differences between
the markets can justify the difference in conversion fees. The extraordinary
profits made by Union industry at the break of 2010/2011 were explained in
recital (179) above. In none of the situations the measures were found to play
a role. Therefore the argument of the parties was rejected.
(259)   The same parties also
claimed that the largest producer in the Union charged higher prices in the
Union than on other markets and recorder higher revenues in 2010 in the Union
than elsewhere. In this context, it is considered that it is economically
justifiable that a transnational company would have different cost structures
and thus different prices on different regional markets. The exceptional
profitability levels at the break of 2010/2011 were explained in recital (179)
above. On these grounds the argument was rejected.
14.3.      Economic situation of users
and claimed impact of the measures
(260)   Further claims were made as
regards the worsening economic situation of the user's industry, such as
closing facilities and reducing employment. It was alleged that this was the
result of the PET price increase. In addition, it was claimed that the
competitiveness of European leading brands has been eroded as their exports in third
countries were in direct competition with bottled-products that benefit from
PET at international prices. 
(261)   It should be noted, that
based on the information submitted by the cooperating users, the users segment
was not found to be loss-making even though there was a decline in the overall
profitability level in RIP. The profit margin of the users' industry
established on the basis of the questionnaire replies according to the
methodology made available to all parties was found to be at similar level as
the profitability established for the Union industry in RIP. The two verified
companies (bottlers) reported further expansions in production volumes and
increased profitability over the period considered. Some converters were found
operating on tight margins, in some cases facing structural and financial
difficulties. However, no direct link with the measures in place could have
been established in this respect. Similarly, certain decline in the economic
situation of the bottlers was linked to the squeeze caused in 2011 by the
sudden increase of PET price that could have not been passed on to retailers
under the current economic downturn. However, while it has been established
that the situation of the users industry deteriorated to certain extent in
2011, the link between the decline and the existence of the measures was not demonstrated,
especially given that the measures were in places since 2000. 
(262)   Following the disclosure some
parties disagreed with the conclusion that the users' industry was not loss
making. The parties also claimed that the profit margins of users were lower
than those of the Union industry. As regards the assessment of profitability of
the users' industry, the information collected from the cooperating users
contradicted this claim. Although some cooperating users could have been loss
making, the user's industry was overall found to be profitable. In any event, if
the increase of PET prices was found to be one element affecting the
profitability of the users, no link between the measures and the profitability
of the companies in question was demonstrated. As regards the comparison of
profit margins of users and the Union industry, this claim was not
substantiated. Due to the volatility of the profitability of the Union industry
(see recitals (176) to (179) above) the comparison between the two segments was
not considered conclusive. In any event, the both segments showed similar
profitability levels during the RIP (see recital (259). In this light, the
comments of the parties were rejected as unsubstantiated. 
(263)   As regards the alleged
erosion of the competitiveness of the exports of the Union producers of bottled
mineral water/soft drinks, this claim was neither substantiated, nor has a link
to the existence of the measures in place been in this context demonstrated. 
(264)   Following
the disclosure the parties reiterated that the rising
PET prices have a negative impact on the competitiveness of exports of bottled
water. It is recognised that the PET price increase,
among other things, can have a negative impact on the competitiveness of
exports of bottled water. Nevertheless, since no link between the PET price
increase and the measures in question was found as the PET prices primarily
derive from the prices of raw materials, the claimed impact of the measures on
the eroded competitiveness was rejected. 
(265)   Finally,
as to the claimed effect of the measures on the employment, the investigation
revealed that the verified job losses of the users industry were predominantly
linked to the productivity and efficiency gains and a part concerned the
reduction of the temporary staff. 
(266)   Following the disclosure some
parties disputed this finding on the grounds that it did not reflect the
situation of the entire sector. In addition to the findings described in
recital (265) above, it is noted that total jobs reported by the converters
significantly increased and none of them reported job losses. Bottlers claimed
job losses as a result of increased PET price. However, the increase in PET
price being a worldwide phenomenon, no link between job losses and the measures
was established. Furthermore, 90% of the job losses reported by the users’
questionnaires replies were concentrated on three companies. One of them, a
verified user representing substantial part of the reported job losses,
increased substantially its volumes over the period considered and such losses
are therefore associated to productivity gains. As for the remaining two
companies, they were found to have the profitability margins among the highest of
the cooperating parties in their segment and above the target profit of the Union
industry in this case. The claims were therefore dismissed.
14.4.      Other arguments
(267)   Following
the disclosure some parties argued that the Union producers do not have
sufficient capacities to meet the existing demand. It is noted that the Union
industry operated at 86% of its production capacity in RIP and has sufficient
spare capacity to cover total domestic consumption of PET. In addition, imports
from other countries with and without measures continue to exist and have an
increasing tendency. Also, the current measures expired in case of South Korea
and are lifted for imports of the product concerned from Malaysia and Indonesia.
In addition, PET recycling industry may constitute further source of PET to
cover the PET demand in the Union. For these reasons, the alleged problems
faced by users due to the claimed insufficient production in the Union were not
considered substantiated. 
(268)   Following the disclosure
some users claimed the analysis did not address the claimed adverse impact of
the accumulation of anti-dumping measures on the product concerned under the
present review. In response to this argument it is noted that the anti-dumping measures
merely remedy the injurious effect of established dumping. The existence of the
claimed 'accumulated' effect was not demonstrated. On the contrary, despite the
measures in place, the imports from countries with ant-dumping measures
continue and their volumes even increased during the period considered. Also, imports
from countries without any measures are available with a growing trend and at
substantial volumes. Finally, the termination of the measures against Malaysia
and Indonesia, as well as expiry of the measures against South Korea,
contribute to the openness of the Union Market. The argument of the parties was
therefore dismissed. 
15.         Conclusion on the Union
interest
(269)   To conclude, it is expected
that the extension of the anti-dumping measures on imports from India, Taiwan
and Thailand would provide an opportunity for the Union industry to improve and
to stabilise its economic situation following the the investments and consolidation
made in the recent years. 
(270)   It is also considered that
an improved economic situation of the Union industry may be in the interest of
PTA producers and, to a lesser extent, MEG producers in the Union. 
(271)   The economic situation of some
users has worsened since the last review and in particular smaller bottle-water
producers were found, among other reasons, to be negatively affected especially
it seems by the recent PET price increase since they were unable to pass it on
to retailers under the current economic climate. However, the exceptional price
and margin developments of 2011 of Union industry were found to be a global phenomenon primarily driven by the increase in the prices
of raw materials. Therefore, the allegations on
existing 'premium' prices and 'premium' margins linked to existence of the measures
in question were found unjustified. At the same time, Union market continues to
be an open market with existing alternative sources of supply from other third
countries without any measures. 
(272)   Against this background, no
link between the PET price increase and the existing measures was demonstrated.
Economic situation of converters was found to be stable despite the measures in
force. The weight of PET in the total cost of the bottlers was found to be
limited. Furthermore, no link between the PET price variations and the measures
was demonstrated. On these grounds, the measures were found not have
disproportionate effect on the users.
(273)   Taking into account all of
the factors outlined above, it cannot be clearly concluded that it is not in
the Union interest to maintain the current anti-dumping measures.
H. RELATION BETWEEN ANTI-DUMPING
AND COUNTERVAILING MEASURES
(274)   For one exporting country,
namely India, a parallel investigation on the expiry of countervailing measures
has been carried out (see recital (8) above). That investigation confirmed the
necessity to continue the application of such measures at unchanged levels. The
present investigation also concluded that anti-dumping measures on exports from
India should be kept in force at unchanged levels. In that respect, reference
is made to recital (125) of Regulation (EC) No 2604/2000. As the measures
currently proposed for exports of PET from India remain unchanged, it follows
that Article 14(1) of the basic Regulation and Article 24(1) of the basic
anti-subsidy Regulation are complied with.
J. ANTI-DUMPING MEASURES
(275)   All parties were informed of
the essential facts and considerations on the basis of which it is intended to
recommend that the existing measures be maintained on imports of the product
concerned originating in India, Taiwan and Thailand and be terminated with
regard to imports originating in Indonesia and Malaysia. They were also granted
a period to make representations subsequent to this disclosure.
(276)   It follows from the above
that, as provided for by Article 11(2) of the basic Regulation, the
anti-dumping measures applicable to imports of PET originating in India, Taiwan
and Thailand should be maintained. Conversely, the measures applicable to
imports from Indonesia and Malaysia should be allowed to lapse.
HAS ADOPTED THIS REGULATION:
Article 1
1.         A definitive anti-dumping duty
is hereby imposed on imports of polyethylene terephthalate having a viscosity
number of 78 ml/g or higher, according to ISO Standard 1628-5, currently
falling within CN code 3907 60 20 and originating in India, Taiwan and
Thailand.
2.         The rate of the definitive anti-dumping
duty applicable to the product described in paragraph 1 and manufactured by the
companies below shall be as follows:
 Country || Company || Anti-dumping duty (EUR/tonne) || TARIC additional code 
 India || Reliance Industries Ltd || 132.6 || A181 
 Pearl Engineering Polymers Ltd || 87.5 || A182 
 Senpet Ltd || 200.9 || A183 
 Futura Polyesters Ltd || 161.2 || A184 
 Dhunseri Petrochem & Tea Limited || 88.9 || A585 
 All other companies || 153.6 || A999 
 Taiwan || Far Eastern New Century Corporation || 36.3 || A808 
 Shinkong Synthetic Fibers Corp. || 67.0 || A809 
 Lealea Enterprise Co., Ltd || 0 || A996 
 All other companies || 143.4 || A999 
 Thailand || Thai Shingkong Industry Corp. Ltd || 83.2 || A190 
 Indo Pet (Thailand) Ltd || 83.2 || A468 
 All other companies || 83.2 || A999 
3.         In cases where the goods have
been damaged before the entry into free circulation and, therefore, the price
actually paid or payable is apportioned for the determination of the customs
value pursuant to Article 145 of Commission Regulation (EEC) No 2454/93 of 2
July 1993 laying down provisions for the implementation of Council Regulation
(EEC) No 2913/92 establishing the Community Customs Code[20], the amount of anti-dumping
duty, calculated on the basis of the amounts set above, shall be reduced by a
percentage which corresponds to the apportioning of the price actually paid or
payable. 
4.         Notwithstanding paragraphs 1 and
2, the definitive anti-dumping duty shall not apply to imports released for
free circulation in accordance with Article 2.
5.         Unless otherwise specified, the
provisions in force concerning customs duties shall apply.
6.         The review proceeding concerning
imports of polyethylene terephthalate having a viscosity number of 78 ml/g or
higher, according to ISO Standard 1628-5, currently falling within CN code 3907
60 20 and originating in Indonesia and Malaysia is hereby terminated.
Article 2 
1.         Imports shall be exempt from the
anti-dumping duties imposed by Article 1 provided that they are produced and
directly exported (i.e. invoiced and shipped) to a company acting as an
importer in the Union by the companies whose names are listed in Decision
2000/745/EC, as from time to time amended, declared under the appropriate TARIC
additional code and that the conditions set out in paragraph 2 are met. 
2.         When the request for release for
free circulation is presented, exemption from the duties shall be conditional
upon presentation to the customs authorities of the Member State concerned of a
valid Undertaking Invoice issued by the exporting companies from which
undertakings are accepted, containing the essential elements listed in the
Annex. Exemption from the duty shall further be conditional on the goods
declared and presented to customs corresponding precisely to the description on
the Undertaking Invoice.
Article 3
This Regulation shall enter into force on
the day following that of its publication in the Official Journal of the
European Union.
This Regulation shall be binding
in its entirety and directly applicable in all Member States.
Done at Brussels, 
                                                                       For
the Council
                                                                       The
President
ANNEX 
Elements to be indicated in the Undertaking
Invoice referred to in Article 2(2):
1. The Undertaking Invoice number.
2. The TARIC additional code under which
the goods on the invoice may be customs-cleared at Union borders (as specified
in the Regulation).
3. The exact description of the goods,
including:
— the product reporting code number (PRC)
(as established in the undertaking offered by the producing exporter in question),
— CN code,
— quantity (to be given in units).
4. The description of the terms of the
sale, including:
— price per unit,
— the applicable payment terms,
— the applicable delivery terms,
— total discounts and rebates.
5. Name of the company acting as an
importer to which the invoice is issued directly by the company.
6. The name of the official of the company
that has issued the undertaking invoice and the following signed declaration:
‘I, the undersigned, certify that the sale
for direct export to the European Union of the goods covered by this invoice is
being made within the scope and under the terms of the undertaking offered by …
(name of company), and accepted by the European Commission through Decision
2000/745/EC. I declare that the information provided in this invoice is
complete and correct.’ 
[1]               OJ L 343, 22.12.2009, p. 51.
[2]               OJ L 301, 30.11.2000, p. 21.
[3]               OJ L 78, 21.3.2002, p.4.
[4]               OJ L 127, 29.4.2004, p. 7.
[5]               OJ L 19, 21.1.2005, p.1.
[6]               OJ L 266, 11.10.2005, p. 10.
[7]               OJ L 59, 27.2.2007, p. 1.
[8]               OJ L 340,19.12.2008, p. 1.
[9]               OJ L 232, 9.9.2011, p. 19.
[10]             OJ L 90, 28.3.2013, p. 1.
[11]             OJ L 301, 30.11.2000, p. 21.
[12]             OJ L 301, 30.11.2000, p. 1.
[13]             OJ L 59, 27.2.2007, p. 88.
[14]             OJ C 122, 20.4.2011, p. 10.
[15]             OJ C 55, 24.2.2012, p. 4.
[16]             OJ C 55, 24.2.2012, p.14.
[17]             OJ L 188, 18.7.2009, p. 93.
[18]             OJ L 188, 18.7.2012, p.8 
[19]             E.g. Commission Regulation No 473/2010; Council
Regulation No 192/2007.
[20]             OJ L 253, 11.10.1993, p. 1.