CELEX: 52012PC0294
Language: en
Date: 2012-06-15
Title: Proposal for a COUNCIL REGULATION terminating the partial interim review and the expiry review concerning the anti-dumping measures applicable on imports of certain plastic sacks and bags originating in the People's Republic of China and Thailand imposed by Regulation (EC) No 1425/2006

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		52012PC0294
		
			Proposal for a COUNCIL REGULATION terminating the partial interim review and the expiry review concerning the anti-dumping measures applicable on imports of certain plastic sacks and bags originating in the People's Republic of China and Thailand imposed by Regulation (EC) No 1425/2006 /* COM/2012/0294 final - 2012/0155 (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') in the proceeding concerning imports of certain plastic sacks and
bags originating in the People's Republic of China 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 1425/2006[1], the Council imposed a
definitive anti-dumping duty ranging from 4.3% to 28.8% on imports of plastic
sacks and bags originating in the People’s Republic of China (‘PRC’) and from
5.1% to 14.2% for Thailand. This Regulation was subsequently amended by Council
Regulations (EC) No 1356/2007[2],
(EC) No 249/2008[3]
and (EC) No 189/2009[4]
and by Council Implementing Regulations (EU) No 474/2011[5] and (EU) No 475/2011[6].
·                        
Consistency with other policies and
objectives of the Union
Not applicable.
2.           CONSULTATION OF INTERESTED PARTIES AND
IMPACT ASSESSMENT
·                        
Consultation of interested parties
Interested parties concerned by the
proceeding have had the 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 contain
provisions for a general impact assessment but contains an exhaustive list of
conditions that have to be assessed.
3.           LEGAL ELEMENTS OF THE PROPOSAL
·                        
Summary of the proposed action
Upon
the request of Greenwood Houseware (Zhuhai) Ltd, an exporter established in the
People's Republic of China an interim review limited in scope to the
examination of dumping was initiated on 21 September 2010.
On 27 September 2011, the Commission announced the initiation of an
expiry review of the anti-dumping measures applicable to imports of of certain
plastic sacks and bags originating in the People's Republic of China and
Thailand.
The expiry review was initiated following a
substantiated request lodged by 44 Union producers together, representing
around 30% of the total estimated Union production of certain plastic sacks and
bags. The purpose of this investigation was to examine whether the expiry of
measures would be likely to result in a continuation of dumping and injury if
measures were allowed to lapse.
In the expiry review, the low level of cooperation
of the Union producers prevented the Commission from constituting a
representative sample in order to assess whether the conditions specified in
Article 3(2) and Article 11(2) of the basic Regulation are met.
Following the above, the Commission was not
in a position to conclude on the effect of the alleged
dumped imports on the Union industry and therefore proposes
to terminate the investigation. Since the above mentioned interim review is
therefore without purpose, it should be terminated as well. 
It is therefore proposed that the Council
adopts the attached proposal for a Regulation which should be published in the Official
Journal of the European Union at the earliest opportunity.
·                        
Legal basis
Council Regulation (EC) No 1225/2009 of 30
November 2009 on protection against dumped imports from countries not members
of the European Community.
·                        
Subsidiarity principle
The proposal falls under the exclusive
competence of the European Union. The subsidiarity principle therefore does not
apply.
·                        
Proportionality principle
The proposal complies with the
proportionality principle for the following reasons:
The form of action is described in the
above-mentioned basic Regulation and leaves no scope for national decision.
Indication of how financial and
administrative burden falling upon the Union, national governments, regional
and local authorities, economic operators and citizens is minimized and
proportionate to the objective of the proposal is not applicable.
·                        
Choice of instruments
Proposed instruments: regulation.
Other means would not be adequate for the
following reason: 
The basic Regulation does not provide for
alternative options.
4.           BUDGETARY IMPLICATION 
The proposal has no implication for the Union
budget.
2012/0155 (NLE)
Proposal for a
COUNCIL REGULATION
terminating the partial interim review and
the expiry review concerning the anti-dumping measures applicable on imports of
certain plastic sacks and bags originating in the People's Republic of China
and Thailand imposed by Regulation (EC) No 1425/2006
 
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 ('the basic Regulation') and in
particular Article 11(2), (3), (5) and (6) and Article 9 thereof,
Having regard to the proposal submitted by
the European Commission ('the Commission') after consulting the Advisory
Committee,
Whereas: 
A.        PROCEDURE
1.      Measures in force
(1)       By Regulation (EC) No
1425/2006[7],
the Council imposed a definitive anti-dumping duty on imports of certain plastic
sacks and bags, originating in the People’s Republic of China (‘PRC’) and
Thailand. 
(2)       This Regulation was
subsequently amended by Council Regulations (EC) No 1356/2007[8], (EC) No 249/2008[9] and (EC) No 189/2009[10] and by Council Implementing
Regulations (EU) No 474/2011[11]
and (EU) No 475/2011[12]
.
2.      Requests for reviews and initiation

(3)       On 18 May 2010, the
Commission received a request for a partial interim review of Regulation (EC)
No 1425/2006 from Greenwood Houseware (Zhuhai) Ltd, an exporting producer of
certain plastic sacks and bags in the PRC ('the applicant'). 
(4)       Subsequently, following
the publication of a Notice of impending expiry of the definitive anti-dumping
measures in force, the Commission received, pursuant to Article 11(2) of the
basic Regulation, a request for an expiry review, lodged on 30 June 2011.
(5)       The request was lodged by
44 Union producers together, representing around 30% of the total estimated
Union production of certain plastic sacks and bags.
(6)       The request was based on
the grounds that the expiry of the measures would be likely to result in a
continuation of dumping and injury if measures were allowed to lapse.
(7)       Having determined, after
consulting the Advisory Committee, that sufficient evidence existed for the
initiation of the partial interim review and an expiry review, the Commission
announced the initiation of the partial interim review pursuant to Article
11(3) of the basic Regulation and an expiry review pursuant to Article 11(2) of
the basic Regulation by a notice published on 21 September 2010 and 27
September 2011 respectively in the Official Journal of the European Union.
3.      Investigations
3.1. Investigation periods
(8)       The expiry review
investigation of continuation or recurrence of dumping and injury covered the
period from 1 July 2010 to 30 June 2011 (‘the review investigation period’ or
‘RIP’). The examination of the trends relevant for the assessment of a
likelihood of a continuation or recurrence of injury covered the period from 1
January 2008 up to the end of the RIP (‘period considered’).
(9)       The review investigation
period for the partial interim review limited in scope to the examination of
dumping with regard to Greenwood Houseware (Zhuhai) Ltd. covered the period
from 1 April 2009 to 30 June 2010. 
3.2. Product concerned and like product 
(10)     The product concerned in
both investigations is plastic sacks and bags, containing at least 20 % by
weight of polyethylene and of sheeting of a thickness not exceeding 100 micrometres
(μm), originating in the PRC and Thailand ('the product concerned'),
currently falling within CN codes ex 3923 21 00, ex 3923 29 10 and ex 3923 29
90 .
(11)     As far as the product
produced and sold in the Union market is concerned, no conclusive findings could
be made with regard to Article 1(4) of the basic Regulation, due to the
insufficient cooperation of the Union industry in the expiry review (see below
section B). 
(12)     As far as the product
produced and sold on the domestic market by the applicant of the interim review
is concerned, as well as the product produced and sold in a potential analogue
country in the framework of the interim review, it is noted that the
investigation did not reach any conclusions given the termination of both
current investigations and the repeal of the existing measures (see below
section B). 
3.3. Parties concerned by the investigation
(13)     The Commission officially
advised Greenwood Houseware (Zhuhai) Ltd and the representatives of the PRC of
the initiation of the partial interim review limited in scope to the
examination of dumping. Both parties were given the opportunity to make their
views known in writing and to request a hearing within the time limit set out
in the Notice of initiation. 
(14)     The Commission officially
advised the Union producers who lodged the request for the expiry review, other
known Union producers and associations of Union producers, exporting producers,
importers and users known to be concerned as well as their associations.
Producers in the possible analogue countries, i.e. India, Indonesia, Malaysia,
Turkey and USA and the representatives of the PRC and Thailand were also
informed of the initiation of the expiry review. Interested parties were given
the opportunity to make their views known in writing and to request a hearing
within the time limit set out in the Notice of initiation. 
(15)     All interested parties who
so requested and showed that there were particular reasons why they should be
heard were granted a hearing.
3.4 Sampling of Union producers 
(16)     In view of the large number
of Union producers involved in the expiry investigation, the application of
sampling was envisaged in the relevant Notice of initiation in accordance with
Article 17 of the basic Regulation.
3.4.1 Description of the Union industry
(17)     The
sector of plastic sacks and bags production in the Union is highly fragmented
with a very large number of producers of different size, including a large
sector of small-sized producers spread over several Member States.
(18)     The information provided at
the initiation stage in the request indicated that large-medium-sized companies
represented around 25% of the cooperating producers and around 70% of the
cooperating Union production. Accordingly, small-sized companies, represented
around 75% of the cooperating producers and around 30% of their production.
(19)     In
addition, the information showed that the Union production is spread among
several Members States, but largely concentrated in Germany, France, Spain and
Italy.
3.4.2 Sampling
methodology
(20)     Article
3(2) of the basic Regulation requires that a determination of injury shall be
based on positive evidence and shall involve an objective determination of,
inter alia, the impact of dumped imports on the Union industry. Any findings of
injury and the information collected for that purpose would thus have to be
representative as to reflect the situation of the entire Union industry. 
(21)     It follows that the high
level of fragmentation of the plastic sack and bags sector had to be taken into
consideration in the sampling exercise. In order to be able to draw conclusions
that would be representative for the entire Union industry it was considered
necessary to ensure that also the situation of the small-sized companies was
properly reflected.
(22)     Consequently, for the
purpose of selecting a representative sample of Union producers the cooperating
Union producers were divided into two segments based on the volume of their
yearly production: large-medium-sized companies with production above 15.000 tonnes
on one hand and small-sized companies with production below 15.000 tonnes on
the other hand. It was envisaged to sample the largest companies within each
segment. 
(23)     Furthermore,
the producers' geographical spread amongst Member States as described in
recital (19) was also taken into consideration.
3.4.3 Procedure for selecting the provisional
sample 
(24)     The
procedure to obtain the information necessary for the selection of the sample
of Union producers emanated from the information obtained at initiation stage.
In addition, the relevant Notice of initiation invited all other producers to
make themselves known should they wish to be included in the sample. Following
the publication of the Notice of initiation, no company contacted the Commission
requesting to be included in the sample.
(25)     As a result of the criteria
explained in recitals (20) to (23) five Union producers operating in four
Member States were selected to be in the sample. They were the largest
producers of each of the two segments, taking into account size and
geographical location. Three sampled companies belong to the segment of
large-medium-sized companies, two to the segment of small-sized companies.
(26)     The
selected companies also reflected the geographical spread amongst Members
States in terms of production, with Germany and France representing the
companies operating in the large-medium-sized segment and Spain and Italy those
operating in the small-sized segment.
(27)     The sample thus selected
represented 22.5 % of total production of plastic sacks and bags by the
cooperating producers and 12.3% of the total estimated Union production, based
on the total Union production figures reported in the request.
(28)     At
the initiation stage, all known Union producers were informed about the
composition of the provisional sample and were given the possibility to
comment. No comments were received. 
B.        SITUATION OF THE UNION
INDUSTRY
(29)     It is recalled that the
determination of injury must be evidence-based assessment of the effect of the
dumped imports on the Union industry. 
(30)     The fragmentation of the
industry therefore had to be taken into account in the sample and
questionnaires requesting general data mainly regarding macroeconomic
indicators per Member State were in addition sent to all known Union
Associations of producers in order to obtain the necessary information needed. 
(31)     In terms of the sample of
Union producers, the level of representativity was seriously affected by the
fact that the largest sampled producer operating in segment of
large-medium-sized companies and one producer operating in segment of
small-sized companies informed the Commission that they did not wish to respond
to the questionnaire. This meant that only three out of the five sampled companies
continued to cooperate and that no or only partial information would be
provided for the identified segments and producing Member States.
(32)     Numerous attempts where
therefore made to select a new representative sample that would respect the
selection methodology outlined in recitals (17) to (28).
(33)     In this respect a total of
six additional Union producers, that had expressed their willingness to be
sampled, were identified as possible replacements for the two companies that
had withdrawn the cooperation from the sample. These six additional companies
were approached and requested to cooperate by filling out the Union producer's
questionnaire.
(34)     Out
of these six additional Union producers approached, only one producer,
representing the segment of large-medium-sized companies, eventually agreed to
cooperate. No replacement was found to represent the production in Germany, one
of the largest Member States in terms of production of plastic sacks and bags. 
(35)     Therefore, it was not
possible to select a new sample in accordance with Article 17(4) of the basic
Regulation as the requisite representativity in terms of the identified
segments and producing Member States could not be reached.
(36)     Due to the low cooperation
on the part of the sampled Union producers, it could not be reasonably
concluded that the data compiled from the cooperating companies reflected the
situation of the entire Union industry and therefore it was not possible to
properly assess whether the conditions specified in Article 3(2) of the basic
Regulation were met. 
(37)     Following the attempts to
select a new sample, one group of producers reiterated their commitment to
taking an active part in the expiry review, restating the importance of
maintaining the anti-dumping measures in force for the Union industry. This
group of producers expressed regrets that only one amongst them was invited by
the Commission to complete the questionnaire. In this context it should be
noted that the willingness of these companies to cooperate was fully considered
and they were all included in the group of companies that were taken into
account for the selection of the new sample. It is recalled, however, that in
order to ensure the required representativity, the selection method, as
described in recital (17) to (28) had to be respected also for the new sample.
Since only one of the companies of this group fulfilled the criteria mentioned
above, only that company could be invited to be part of the sample. The other
companies were of a size or situated in Member States that were already
sufficiently represented in the sample.
(38)     Certain information on
country-wide production, sales figures and other key macro indicators were
received from the national associations of the Netherlands, Spain, Italy and partially
France. However, the European Plastics Converters Association (EuPC) did not
provide the information requested in the specific questionnaire sent to them
and therefore, no conclusive data could be collected on a macroeconomic level
across the Union.
C. TERMINATION OF THE PROCEEDINGS
(39)     In light of the above and
in accordance with Article 9 (2) of the basic Regulation, the expiry review
concerning imports of plastic bags from the PRC and Thailand should be
terminated. 
(40)     The
low level of cooperation of the Union producers and the lack of a
representative sample has prevented the Commission from being able to assess
whether the conditions specified in Article 3(2) and Article 11(2) of the basic
Regulation are met. It can thus not be concluded whether the expiry of the
measures in place would be likely to lead to a continuation or recurrence of
injury and the investigation should be terminated on these grounds. 
(41)     It follows from the above
that the interim review is without purpose and should be terminated as well.
(42)     All parties were informed
of the essential facts and considerations on the basis of which it was intended
to recommend the termination of the two investigations. They were also granted
a period to submit comments subsequent to that disclosure. The submissions and
comments were duly taken into consideration where warranted.
(43)     One interested party
claimed that since it was proposed to terminate the review due to lack of
cooperation of the Union producers, the anti-dumping
measures should be repealed
with retroactive effect, i.e. as of 30 September 2011, when the measures in
force should have initially expired.
(44)     In
this context it is recalled that the request for the review was made by Union
producers representing more than 30% of the total Union production in
accordance with the basic Regulation. Moreover, Article 11(2) of the basic
Regulation explicitly stipulates that measures shall remain in force pending
the outcome of the review. The findings mentioned in
recital (40), however, did not have an impact on the legality of the initiation
of the review as such which means that the provisions in Article 11(2) stipulating
that measures shall remain in force pending the outcome of the review continue
to apply. This argument therefore had to be rejected. 
(45)     A number of Union producers
also responded to the disclosure by stating they were withdrawing as
complaining producer. However, taking into account other Union producers
maintained their position and given the fact that the standing requirements as
described in recital (5) were fulfilled at the time of the initiation of the
case, this would not have an impact on the procedure.
(46)     In view of the foregoing,
none of the comments received were such as to alter the above conclusions. It
is therefore concluded that the anti-dumping proceeding concerning imports into
the Union of certain plastic sacks and bags originating in the PRC and Thailand
should be terminated and measures be repealed. It follows that the on-going
interim review referred to in recital (3), will be terminated at the same time
as this expiry review. 
HAS ADOPTED THIS REGULATION:
Article 1
The
anti-dumping measures concerning imports of certain plastic sacks and bags,
currently falling within CN codes ex 3923 21 00, ex 3923 29 10 and ex 3923 29
90 and originating in the People’s Republic of China and Thailand are hereby
repealed and the proceeding concerning these imports is terminated. 
Article 2
The
partial interim review of the anti-dumping measures applicable to imports of
certain plastic sacks and bags, currently falling within CN codes ex 3923 21
00, ex 3923 29 10 and ex 3923 29 90 and originating in the People’s Republic of
China initiated pursuant to Article 11(3) of Regulation (EC) No 1225/2009, is
hereby terminated.
Article 3
This Regulation shall enter into force on
the day following 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
[1]                      OJ
L 270, 29.09.2006. p. 4.
[2]               OJ L 304, 22.11.2007. p. 5
[3]               OJ L 76, 19.03.2008. p. 8
[4]               OJ L 67, 12.3.2009, p. 5.
[5]               OJ L 131, 18.05.2011, p. 2.
[6]               OJ L 131, 18.05.2011, p. 10.
[7]                      OJ L 270,
29.09.2006. p. 4.
[8]               OJ L 304,
22.11.2007. p. 5
[9]               OJ L 76, 19.03.2008. p. 8
[10]             OJ L 67, 12.3.2009, p. 5.
[11]             OJ L 131, 18.05.2011,
p. 2.
[12]             OJ L 131, 18.05.2011,
p. 10.