CELEX: 52014PC0108
Language: en
Date: 2014-02-27
Title: Proposal for a COUNCIL IMPLEMENTING REGULATION amending Council Implementing Regulation (EU) No 875/2013 imposing a definitive anti-dumping duty on imports of certain prepared or preserved sweetcorn in kernels originating in Thailand following an interim review pursuant of Article 11(3) of Council Regulation (EC) No 1225/2009

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		52014PC0108
		
			Proposal for a COUNCIL IMPLEMENTING REGULATION amending Council Implementing Regulation (EU) No 875/2013 imposing a definitive anti-dumping duty on imports of certain prepared or preserved sweetcorn in kernels originating in Thailand following an interim review pursuant of Article 11(3) of Council Regulation (EC) No 1225/2009 /* COM/2014/0108 final - 2014/0055 (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 interim
review proceeding concerning the anti-dumping duties in force on imports of
certain prepared or preserved sweetcorn in kernels originating in 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
A definitive
anti-dumping duty on imports of certain prepared or preserved sweetcorn in
kernels currently falling within CN code ex 2001 90 30 and ex 2005 80 00
originating in Thailand was imposed by Regulation (EC) No 682/2007 (OJ L 159,
18.7.2007, p. 14), as amended by Regulation (EC) No 954/2008 (OJ L 260,
25.9.2008, p. 1). The duty was maintained by means of Council Implementing Regulation
(EU) No 875/2013 (OJ L 244, 13.9.2013,
p. 1).
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 already 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
River Kwai
International Food Industry Co., Ltd (‘RKI’), a Thai exporting producer, lodged
a request for a partial interim review (limited to dumping). The Commission
initiated the review on 14 February 2013. 
RKI is subject to the individual anti-dumping duty of 12,8 %. The review
investigation established a dumping margin of 3,6 %. 
Therefore, it is
suggested that the Council adopts the attached proposal for a Regulation amending
the duty for RKI. 
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 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
instrument: Regulation.
Other means
would not be adequate for the following reason:
The basic
Regulation does not foresee alternative options.
4.           BUDGETARY IMPLICATION 
The proposal has
no implication for the Union budget.
2014/0055 (NLE)
Proposal for a
COUNCIL IMPLEMENTING REGULATION
amending Council Implementing Regulation
(EU) No 875/2013 imposing a definitive anti-dumping duty on imports of certain
prepared or preserved sweetcorn in kernels originating in Thailand following an interim review pursuant of Article 11(3) of Council Regulation (EC)
No 1225/2009
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning
of the European Union, and in particular Article 291(2) thereof,
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 11(3) thereof,
Having regard to the proposal submitted by
the European Commission after consulting the Advisory Committee,
Whereas:
1.         PROCEDURE
1.           Measures in force
(1)       Following an investigation
(‘the original investigation’), the Council, by Regulation (EC) No 682/2007[2], imposed a definitive
anti-dumping duty on imports of certain prepared or preserved sweetcorn in
kernels currently falling within CN codes ex 2001 90 30 and ex 2005 80 00
originating in Thailand. The measures took the form of an ad valorem
duty ranging between 3,1 % and 12,9 %.
(2)       By Regulation (EC) No
954/2008[3]
the Council amended the measures in force with regard to one exporting producer
and consequently the rate applicable to ‘all other companies’, thereafter ranging
between 3,1 % and 14,3 %.
(3)       Following an expiry review
pursuant to Article 11(2) of the basic Regulation the Council maintained the
duty ranging between 3,1 % and 14,3 % by means of Council Implementing Regulation
(EU) No 875/2013[4]
(‘the expiry review’).
2.           Request for a review
(4)       The European Commission
('the Commission') received a request for a partial interim review pursuant to
Article 11(3) of the basic Regulation. This request was lodged by River Kwai
International Food Industry Co. Ltd. (‘the applicant’), an exporting producer
from Thailand.
(5)       The request was limited in
scope to the examination of dumping as far as the applicant was concerned. 
(6)       In its request, the
applicant provided prima facie evidence that, as far as the dumping by
the applicant is concerned, the circumstances on the basis of which the
measures in force were imposed have changed and that these changes were of a lasting
nature. 
(7)       In particular, the
applicant claimed that the changed circumstances relate to changes in the
product range it commercialises which have a direct impact on cost of
production thereof. A comparison of its domestic prices with its export prices
to the Union indicated that the dumping margin appeared to be lower than the current
level of measures.
3.           Initiation of a partial
interim review
(8)       The Commission determined,
after consulting the Advisory Committee, that sufficient evidence existed to
justify the initiation of a partial interim review limited to the examination
of dumping as far as the applicant is concered. On this basis, it announced by
a notice published in the Official Journal of the European Union[5] on 14 February
2013 (‘the notice of initiation’), the initiation of a partial interim review
pursuant to Article 11(3) of the basic Regulation.
4.           Review investigation
period 
(9)       The investigation of
dumping covered the period from 1 July 2011 to 31 December 2012 (‘the review
investigation period’ or ‘RIP’).
5.           Parties concerned by the
investigation 
(10)     The Commission officially
advised the applicant, representatives of the exporting country as well as the
association of Union producers (Association Européenne des Transformateurs de
Maïs Doux 'AETMD') of the initiation of the interim 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 out in the notice of initiation.
(12)     The written comments
submitted by AETMD were considered and, where appropriate, taken into account.
(13)     In order to obtain the
information necessary for its investigation, the Commission sent a
questionnaire to the applicant and received a reply within the deadline set for
that purpose.
(14)     The Commission sought and
verified all information deemed necessary for the determination of dumping. The
Commision carried out a verification visit at the premises of the applicant in Thailand in Bangkok and Kanchanaburi.
2.         PRODUCT
CONCERNED ANDF LIKE PRODUCT
1.           Product concerned
(15)     The product under this
review is the same as the one defined in the original and the expiry review investigations,
namely sweetcorn (Zea mays var. saccharata) in kernels, prepared or
preserved by vinegar or acetic acid, not frozen, currently falling within CN code
ex 2001 90 30, and sweetcorn (Zea mays var. saccharata) in kernels,
prepared or preserved otherwise than by vinegar or acetic acid, not frozen,
other than products of heading 2006, currently falling within CN code ex 2005
80 00, originating in Thailand.
2.           Like product
(16)     As
established in the original investigation and confirmed in the expiry review
sweetcorn produced and sold in the Union and sweetcorn produced and sold in Thailand
was found to have essentially the same physical and chemical characteristics
and the same basic uses as sweetcorn produced in Thailand and sold for export
to the Union. They are therefore considered to be alike within the meaning of
Article 1(4) of the basic Regulation.
3.         DUMPING
1.           Determination of Normal Value
(17)     In accordance with the
first sentence of Article 2(2) of the basic Regulation, the Commission first
established whether the applicant’s total domestic sales of the like product
during the RIP were representative. The domestic sales are representative if
the total domestic sales volume of the like product represented at least 5 % of
the total export sales volume of the product concerned to the Union during the RIP.
(18)     Total domestic sales of the
like product were found to be representative.
(19)     The Commission subsequently
identified the product types sold domestically that were identical or directly
comparable with the types sold for export to the Union.
(20)     For each of these product
types, the Commission established whether domestic sales were sufficiently
representative in accordance with Article 2(2) of the basic Regulation. The domestic
sales of a product type are representative, if the total volume of domestic sales
of this product type to independent customers during the RIP represents at
least 5 % of the total volume of export sales to the Union of the
identical or comparable product type.
(21)     The Commission established
that, for all the product types sold for export to the Union, the applicant’s
domestic sales were made in representative quantities. 
(22)     Next, the Commission defined
the proportion of profitable sales to independent customers on the domestic
market for each product type during the RIP in order to decide whether to use
actual domestic sales for the calculation of the normal value in accordance
with Article 2(4) of the basic Regulation.
(23)     The
normal value is based on the actual domestic price per product type
irrespective of whether these sales are profitable or not, if
–              
the sales volume of the product type, sold at a
net sales price equal to or above the calculated cost of production, represented
more than 80 % of the total sales volume of this product type, and
–              
the weighted average sales price of this product
type is equal to or higher than the unit cost of production. 
(24)     The
Commission's analysis of domestic sales showed that more than 90 % of domestic
sales were profitable and that the weighted average sales price was higher than
the unit cost of production. Accordingly, the normal value was calculated as a
weighted average of the prices of all domestic sales during the RIP. 
2.           Determination of the
Export price
(25)     All sales by the applicant for
export to the Union were made directly to unrelated customers in the Union or Thailand. The export price is therefore established, on the basis of prices paid or payable
in accordance with Article 2(8) of the basic Regulation.
3.           Comparison
(26)     The Commission compared the
normal value and the export price on an ex-works basis.
(27)     Where justified, the
Commission adjusted the normal value and/or the export price for differences
affecting prices and price comparability in accordance with Article 2(10) of
the basic Regulation.
(28)     Adjustments for differences
in transport costs, insurance costs, handling and loading costs, packaging, commissions,
credit costs and bank charges were granted when applicable and duly justified. 
(29)     The
applicant claimed an allowance under Article 2(10)(d) of the basic Regulation for
a difference in brand value when sold under own brand on the domestic market
and when sold under own brand on the Union market. Allegedly, the brand value
of the applicant's own brand is higher on the Thai market than on the Union
market. To justify its claim the applicant made reference to the adjustment
made in the original investigation and in the expiry review. 
(30)     However, the applicant’s
situation in the present interim review differs from the situation of other
exporting producers for which the adjustment was granted in the original and
expiry review investigation. The adjustment made in the original investigation
and in the expiry review specifically refers to exporting producers whose sales
on the domestic market are carrying their own brand whereas sales to the Union are sold under retailer's brand. In the present interim review, the
applicant’s sales both on the domestic market and on the Union market carry its
own brand. Moreover, the adjustment made in the original and expiry review
investigations was made to the profit margin when constructing the normal value
in accordance with Article 2(6) of the basic Regulation. However, in the
present interim review, the normal value is based on applicant’s actual
domestic prices.
(31)     Concerning the alleged lack
of brand value when selling to the Union market, the importer of the product
concerned carrying the applicant’s brand is specialized in imports of branded
food products, in particular from Asia. The applicant failed to clarify or
provide evidence why sales to this particular importer would carry a lower value
than the brand value on the applicant’s domestic market. Consequently, the
Commission concluded that the applicant has not demonstrated that the alleged
difference in brand value has an impact on prices or price comparability.
(32)     The applicant also claimed
the same adjustment under Article 2(10)(k) of the basic Regulation. However,
since the applicant has not demonstrated that the alleged difference has an
impact on prices or price comparability, the allowance could not be accepted
under this provision either.
(33)     The claim for an allowance
under Article 2(10)(d) and Article 2(10)(k) is therefore rejected.
(34)     With reference to Article
2(10)(b) of the basic Regulation, the applicant also claimed an allowance for a
government-paid export tax rebate. An amount is paid to the applicant by the
government when the product concerned is sold for export, including to the
Union market.
(35)     The applicant could
demonstrate that an amount equivalent to less than 0,5 % of the invoice value
is paid to the applicant for exports to the Union market. However, in
accordance with Article 2(10)(b) of the basic regulation, an adjustment is to
be made to the normal value if the conditions set in this Article are met and
not to the export price as claimed by the applicant. Furthermore, the
investigation showed that no direct link could be established between the
payment received by the applicant in respect of the product concerned when
exported to the Union and import charges for the raw materials physically
incorporated therein. 
(36)     The company also claimed
the same adjustment under Article 2(10)(k). However, since the applicant failed
to demonstrate any link between the export tax rebate and the pricing of the
exported product concerned, the claim could not be accepted.
(37)     The claim for an allowance for
export tax rebate under Article 2(10)(b) and Article 2(10)(k) is therefore
rejected.
4.           Dumping during the RIP
(38)     The weighted average normal
value of each type of the product concerned exported to the Union was compared
with the weighted average export price of the corresponding type of the product
concerned, as provided for in Article 2(11) and 2(12) of the basic Regulation.
(39)     On this basis, the weighted
average dumping margin expressed as a percentage of the CIF Union frontier
price, duty unpaid, was found to be 3,6 %.
4.         LASTING NATURE OF
CHANGED CIRCUMSTANCES
(40)     In accordance with Article
11(3) of the basic Regulation, the Commission examined whether the
circumstances on the basis of which the current dumping margin was based have
changed and whether that change was of a lasting nature.
(41)     In its request for a
review, the applicant had referred to changes in the product range it
commercialises which would have a direct impact on the cost of production
thereof. The investigation has confirmed that, due to a corporate
restructuring, the applicant does no longer produce and sell certain products
which it did in the original investigation, and that this has had an impact on
the cost of production for the product concerned.
(42)     AETMD has commented that
the re-structuring carried out by the applicant may not be of lasting nature as
it could easily be reversed.
(43)     It
is indeed possible that the management of the applicant, if it so wishes, would
be in a position to reverse the re-structuring. However, there is no evidence
suggesting that the applicant’s decision to re-structure and to streamline the
commercialization of the group’s products between the group’s companies would
not be of a lasting nature. In addition, the restructuring already took place by
2009 which indicates that the new corporate structure is of a lasting nature.
(44)     Following disclosure, AETMD
reiterated its claim that the change on basis of which the review was initiated
could not be considered as of a lasting nature. More specifically, it
questioned the impact on the cost of production due to the internal
reorganisation within the group, claiming that costs within the group can simply
be reallocated in order to lower the normal value. For this reason, the new
cost of production could not be considered as being of a lasting nature. AETMD
also noted that the subsidiary responsible for production and sales of fresh
products shares the same address as the applicant. AETMD claimed that this is
another indication that the reorganisation is not profound and lasting.
(45)     In response to AETMD's
claims in the preceding recital, the applicant stressed that the reorganisation
also entailed an improved cost accounting system whereby bottlenecks were
identified and resolved in order to optimize production and to reduce manufacturing
costs. The applicant also stressed that any reversal of the 2009-reorganisation
at this stage would be a very complex process as the mother-company to the
applicant, Agripure Holding PLC, is listed on the Thai Stock Exchange. 
(46)     The risk for a potential reversal
of the applicant's re-organisation has already been addressed in recital (43)
above.
(47)     Moreover, for the purpose
of verifying the accuracy of the claims in the request for the initiation of
the present review, the Commission made a comparison of the cost of production
for the product types exported to the Union during the original investigation
(i.e. before the applicant's reorganisation in 2009) and during the RIP. This
comparison has indeed confirmed that the manufacturing cost per unit have
changed to a significant degree. The change in manufacturing costs per unit
identified goes beyond a simple reallocation of costs and is due to a real
decrease in indirect costs of production such as manufacturing overheads and
labour costs. 
(48)     As to the question of the
applicant and its subsidiary sharing the same administrative address, this is a
common practise in corporate business. Moreover, during the verification visit
to the applicant's premises, the Commission noted that the production lines and
storage of finished goods within the premises were dedicated to sweet corn
production; there was no visible trace of the production and storage of the fresh
products sold by the subsidiary.
(49)     Having regard to the
arguments of AETMD and of the applicant, and having identified a de facto
decrease in the cost of manufacturing per unit between the original
investigation and the RIP, the argument put forward by AETMD has to be
rejected.
(50)     AETMD has also submitted
that the applicant planned to increase its production capacity during 2013 by
some 40 %. According to AETMD, this fact would go against the applicant’s claim
that the new, revised cost of production (which followed the re-structuring)
would be of lasting nature.
(51)     The
investigation has indeed confirmed that the applicant is in the process of
increasing its production capacity. The impact of the increased capacity has
been one of the factors on which basis it was concluded that there was a risk
for continuation of dumping in the expiry review[6].
(52)     Following disclosure, AETMD
reiterated the claim that the investment into new production capacity will
necessarily have an effect on the cost of production and therefore, the prevailing
cost of production against which the domestic prices were compared in this
review (see recital (24)), is not of a lasting nature. In particular, AETMD
made a calculation based on available sources on which basis it concluded that
the total costs would increase due to increased depreciation by some 10 % as
compared to the current costs.
(53)     The applicant did not
contradict AETMD's claim concerning increased depreciation costs per se,
but stressed that these increased costs of depreciation is to be offset by
increases in total revenues (through increased sales) and by decreases in other
costs as a result of increased automation.
(54)     As
mentioned in recital (51), the applicant is indeed in the process of investing
in new production facilities. Investments into new facilities may entail increase
of cost for depreciation. On the other hand and as
the applicant pointed out in response to AETMD's comment, new production
facilities may also entail changes (as compared to existing production lines)
such as the level of automation. These changes should have a direct decreasing effect
on the labour and energy costs and could offset the increases for the cost of
depreciation.  
(55)     On balance, it is concluded
that the overall impact on the cost of production per unit produced cannot
be measured until the new installations have been inaugurated and any
additional costs reflected in the accounts. 
(56)     Nevertheless and having
regard to the objective of the investment (increased efficiency and  competitiveness,
to reduce manufacturing costs per unit), it is expected that at least in the
medium to long term there will be no significant increase in the cost of
production per unit. In such circumstances it is expected that the normal value
will still be based on domestic prices as in the present review. The argument brought
forward by AETMD must therefore be rejected.
(57)     Following disclosure, AETMD
also questioned the lasting nature of the new dumping margin. It argued that the
basis of the export prices used for the calculation of the dumping margin were
not representative. More specifically, it argued that 
(a)         
the number of tonnes exported during the RIP
were too small to be considered representative, and
(b)         
with reference to recital (29), the fact that
the export transactions of own-branded products made up almost half of
the all exports during the RIP, the export prices should be deemed unrepresentative.
AETMD considered that, should the proposed decrease of measures enter into
force, the major portion of exports to the Union are more likely to be of
retailers' brand carrying lower export prices[7].
(58)     Due
to the fact that the quantities exported to the Union were not significant, the
Commission ascertained itself that the applicant's export prices paid or
payable to the Union were
representative by comparing them with applicant's export prices paid or payable
to other third countries. On this basis, it was concluded that the prices to
the Union were consistent with those charged to customers in other export
markets.
(59)     The existence of different market
segments, own brand and the retailers brand, have been acknowledged during the
course of earlier investigations[8].
It constitutes one important part of the definition of different product types within
the scope of the product concerned. On this basis, exports of own-brand
products have been compared with domestic sales of own-brand products
and export sales of retailers' brand have been compared with domestic sales of
retailers' brand.
(60)     The claim by AETMD that future
exports will mainly be constituted by retailers' brand is speculative, not supported
by evidence and as such insufficient to put into question the representativity
of the exports of own-brand products during the RIP. The claim by AETMD is
therefore rejected.
(61)     AETMD also claimed that the
decrease of the duty to a lower level could lead to the risk for circumvention
of the measures.
(62)     It is recalled that the
duties in force are already differentiated between the Thai exporting
producers. Thus, the risk for circumvention (i.e. using the TARIC additional code
with lower duties) has been present since the introduction of the original
measures. The lower duty for one of these exporting producers does not per
se increase the risk for circumvention from Thailand as a whole. 
(63)     Moreover, should
information become available suggesting that the duties are undermined by way
of circumvention, an investigation can be initiated as appropriate provided
that conditions set in Article 13 of the basic Regulation are met.
(64)     AETMD also stated that the
applicant may have artificially increased the export prices to the Union by way of cross-compensation with parallel sales of other products at artificially
low prices.
(65)     As indicated in recital (58)
above, export prices to the Union of the product concerned were in line with
those to third countries. Thus, there are no indications that export prices to
the Union were artificially high during the RIP and the argument is therefore
rejected.
5.         ANTI-DUMPING MEASURES
(66)     In light of the results of
the investigation, the Commission considers it appropriate to amend the
anti-dumping duty applicable to imports of the product concerned from River
Kwai International Food Industry Co. Ltd.
(67)     Moreover, and upon request
from the applicant, its address in Thailand is also changed.
6.         DISCLOSURE
(68)     Interested parties were
informed of the essential facts and considerations on the basis of which it was
intended to recommend an amendment to Council Implementing Regulation (EU) No
875/2013.
(69)     Following disclosure, the Thai
government argued that the average duty rate for co-operating non-sampled
exporters should also be revised in order to
take account of the findings of this partial interim review. It should be noted
that this claim goes beyond the limited scope of the current review which only
aims at adjusting the level of the existing anti-dumping duty rate for the
applicant. Any request to amend the level of the anti- dumping duty rates
following an alleged change in circumstances should be presented pursuant to
Article 11(3) of the basic Regulation. Therefore, this claim has to be rejected,
HAS ADOPTED THIS REGULATION:
Article 1
1.         The entry concerning River Kwai
International Food Industry Co., Ltd in the table of Article 1(2) of Council
Implementing Regulation (EU) No 875/2013 is hereby replaced by the following: 
 Company || Anti-Dumping duty (%) || TARIC Additional Code 
 River Kwai International Food Industry Co., Ltd, 99 Moo 1 Thanamtuen Khaupoon Road Kaengsian, Muang, Kanchanaburi 71000 Thailand || 3,6 || A791 
Article 2
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
[1]               OJ L 343, 22.12.2009, p. 51.
[2]               Council Regulation (EC) No 682/2007 of 18 June 2007
imposing a definitive anti-dumping duty and collecting definitively the
provisional duty imposed on imports of certain prepared or preserved sweetcorn
in kernels originating in Thailand (OJ L 159, 20.6.2007, p. 14).
[3]               Council Regulation (EC) No 954/2008 of 25 September
2008 amending Council Regulation (EC) No 682/2007 imposing a definitive
anti-dumping duty and collecting definitively the provisional duty imposed on
imports of certain prepared or preserved sweetcorn in kernels originating in Thailand (OJ L 260, 30.9.2008, p. 1). 
[4]               Council Implementing Regulation (EU) No 875/2013 of 2
September 2013 imposing a definitive anti-dumping duty on imports of certain
prepared or preserved sweetcorn in kernels originating in Thailand following an expiry review pursuant to Article 11(2) of Council Regulation (EC)
No 1225/2009 (OJ L 244, 13.9.2013, p. 1).
[5]               OJ C 42, 14.2.2013, p. 7.
[6]               See recitals (49) to (75) of the expiry review.
[7]               See recital (86) of the expiry review.
[8]               See recital (85) of the expiry review.