CELEX: 52013PC0569
Language: en
Date: 2013-08-02
Title: Proposal for a COUNCIL IMPLEMENTING REGULATION 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 Regulation (EC) No 1225/2009

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		52013PC0569
		
			Proposal for a COUNCIL IMPLEMENTING REGULATION 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 Regulation (EC) No 1225/2009 /* COM/2013/0569 final - 2013/0274 (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 expiry 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). 
   || 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 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 
   || Summary of the proposed action On 19 June 2012, the Commission initiated an expiry review concerning the anti-dumping duties on imports of certain prepared or preserved sweetcorn in kernels originating in Thailand. The review was initiated following a substantiated request lodged by the Association Européenne des Transformateurs de Maïx Doux (AETMD) representing more than 50 % of the Union production of sweetcorn. The review investigation established a likelihood of continuation of dumping and recurrence of injury should the measures expire. It was further established that the continuation of measures would not be against the interest of the Union. Therefore, it is suggested that the Council adopts the attached proposal for a Regulation in order to prolong the existing measures, which should be published in the Official Journal of the European Union by 18 September 2013 at the latest. 
   || 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: Other means would not be adequate because the basic Regulation does not foresee alternative options. 
 4)      Budgetary implication 
   || The proposal has no implication for the Union budget. 
2013/0274 (NLE)
Proposal for a
COUNCIL IMPLEMENTING REGULATION
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 Regulation (EC) No
1225/2009
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 and 11(2) thereof,
Having regard to the proposal submitted by
the European Commission after consulting the Advisory Committee,
Whereas:
A.        PROCEDURE
1.      Measures in force
(1)       The Council, following an
anti-dumping investigation ('the original investigation'), 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 definitive
anti-dumping measures'). The measures took the form of an ad valorem
duty ranging between 3,1 % and 12,9 %.
(2)       Regulation (EC) No 954/2008[3] amended Regulation (EC) No 682/2007 with regard to the rate of duty
imposed on one company and on ‘all other companies’. The amended duties range
between 3,1 % and 14,3 %. Imports from two Thai exporting producers from whom
undertakings had been accepted by Commission Decision 2007/424/EC[4] were exempted from the duty.
(3)       The Council, by Regulation
(EC) No 847/2009[5], considered that price undertakings with fixed minimum import
prices were no longer appropriate to counteract the injurious effect of
dumping. Consequently, the accepted undertakings were withdrawn and the undertaking
offers by 10 other Thai exporting producers were rejected. 
2.      Request for an expiry review
(4)       Following
the publication of a notice of impending expiry[6] of the
definitive anti-dumping measures in force, the Commission received on 19 March
2012 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 Association Européenne des Transformateurs de Maïs Doux (AETMD)
(‘the complainant’) on behalf of producers representing a major proportion of
the total Union production of prepared or preserved sweetcorn, in this case more than 50 %.
(5)       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.
3.      Initiation of an expiry review
(6)       Having determined, after
consulting the Advisory Committee, that sufficient evidence existed for the
initiation of an expiry review, the Commission announced on 19 June 2012,
by a notice published in the Official Journal of the European Union[7] ('the Notice of initiation'), the initiation of an expiry review
pursuant to Article 11(2) of the basic Regulation. 
4.      Investigation
4.1.   Review investigation period and
period considered
(7)       The investigation of a
continuation of dumping covered the period from 1 April 2011 to 31 March
2012 ('the review investigation period' or 'RIP'). The examination of the trends
relevant for the assessment of the likelihood of a continuation of injury covered
the period from 1 January 2008 to the end of the review investigation period ('the
period considered').
4.2.   Parties concerned by the proceeding
(8)       The Commission officially
advised the applicants, the other known EU producers, the exporting producers
in Thailand, the unrelated importers, the users known to be concerned, and the representatives
of the exporting country 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. 
(9)       All interested parties,
who so requested and showed that there were particular reasons why they should
be heard, were granted a hearing. 
(10)     In view of the apparent large number of exporting producers in Thailand and unrelated importers in the Union involved in the investigation, sampling was envisaged
in the Notice of initiation, 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 to the Commission within 15 days of the initiation of
the review and to provide the Commission with the information requested in the
Notice of Initiation. 
(11)     As regard to the selection
of the sample of the exporting producers in Thailand, the Commission received
complete information from 17 exporting producers, out of which 9 had exports to
the European Union during the RIP. It was decided to select a sample of 3
exporting producers whose combined exports represented 90 % of the total
quantities exported to the EU by the co-operating exporting producers during
the RIP.
(12)     Given that only one reply
has been received from an unrelated importer, sampling was not applied to
unrelated importers. 
(13)     In view of the large number of Union producers involved in this
proceeding, the Notice of initiation announced that the Commission had
provisionally selected a sample of Union producers for the determination of
injury in accordance with Article 17 of the basic Regulation. That
pre-selection had been made by using the information available to the
Commission at initiation stage and it was based on the producers’ sales volume,
production volume and geographical location in the Union. The proposed sample
corresponds to the largest representative volume of production which could be
reasonably investigated within the time available, representing 58 % of the
total production of the Union industry. In addition, the proposed sample is
representative in terms of geographical location of the companies as it covers
three different Member States. EU producers have been consulted about the
proposed sample on the date of publication of the Notice of initiation. Given
that no additional producers came forward and no comments were received on the
sample, the proposed sample has been confirmed.
(14)     Two
interested parties claimed that the sample of Union producers has only been
selected among applicants and that an effort should have been made to sample
producers outside the group of applicants.
(15)     However,
all known EU producers, both applicants as well as non-applicants, have been
invited to co-operate. Ten Union producers, both applicants and non-applicants,
have submitted sampling information. As explained in recital (13), the selected
sample corresponds to the largest representative volume of production which
could be reasonably investigated within the time available, representing 58 %
of the total production of the Union industry, and the Commission considers
that it is representative in terms of geographical location, irrespective of
whether the producers are applicant or not. Therefore, the claim is rejected. 
(16)     The Commission sought and
verified all the information deemed necessary for a determination of the
likelihood of continuation or recurrence of dumping, resulting injury and of
the Union interest. To this end, the Commission sent questionnaires to the
exporting producers and Union producers selected in the sample and to the
unrelated importer. Verification visits were carried out at the premises of the
following companies:
(a)     Producers in the Union:
–              
Bonduelle Conserve International SAS, Renescure, France,
–              
Compagnie Générale de Conserve France SA, Theix, France
–              
Compagnie Générale de Conserve Hungary, Debrecen, Hungary
–              
Conserve Italia SCA, San Lazzaro di Savena, Italy;
(b)     Exporting
producers in Thailand:
–              
Agri Sol., Ltd., Pathumthani City
–              
Lampang Food Products co, Ltd., Bangkok
–              
Sun Sweet Co., Ltd., Chiang Mai City,
(17)     All interested parties, who
so requested and showed that there were particular reasons why they should be
heard, were granted a hearing. 
B.         PRODUCT CONCERNED AND
LIKE PRODUCT
1.      Product concerned
(18)     The
product concerned is 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. 
(19)     The
investigation has shown that, despite differences in the preservations, the
different types of the product concerned all share the same basic biological
and chemical characteristics and are basically used for the same purposes. 
(20)     Two
interested parties claimed that the CN codes for sweet corn do not only
represent the product concerned, but include considerable quantities of canned
babycorn which is not produced by the EU and which is not the like product. They
suggest that the Commission may have included babycorn it its data.
(21)     However,
the investigation has been focused exclusively on the product under measures, which
excludes babycorn, by using corresponding TARIC codes as a basis for analysis.
Therefore, the claim is rejected as factually incorrect. 
2.      Like product
(22)     The
sweetcorn produced and sold in the Union by the Union industry and the sweetcorn
produced and sold in Thailand were found to have essentially the same physical and chemical characteristics
and the same basic uses of the 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.
C.        LIKELIHOOD OF
CONTINUATION OR RECURRENCE OF DUMPING
(23)     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. 
1.      Preliminary remarks
(24)     As stated in recital (10)
above, in view of the potentially large number of exporting producers which
expressed their willingness to cooperate, sampling was foreseen in the notice
of initiation. A sample of three exporting producers, representing around 90 %
of total exports among the exporting producers that expressed their willingness
to cooperate, was selected for the determination of the likelihood of a continuation
or recurrence of dumping. 
(25)     As
the combined export quantities of the three sampled exporting producers
accounted for around 25 % of all exports from Thailand to the European Union
during the RIP, information from other sources such as the request for the
review and available trade statistics on exports (from the Thai Customs) and on
imports (from Eurostat) had to be used in order to assess the likelihood of a continuation
or recurrence of dumping
(26)     Sales
to traders in Thailand, where the goods were destined for unknown export
destinations, have not been included in the determination of the dumping
margin.
(27)     As
in the original investigation, it has been found that certain exporting
producers source parts of their sales of the product concerned from external
suppliers. For the purpose of the investigation, sales of the product concerned
which have not been manufactured by the exporting producers themselves have not
been taken into account when determining their respective dumping margins. 
2.      Dumping of imports during the RIP
2.1.   Determination of the Normal Value
(28)     In
accordance with Article 2(2), first sentence, of the basic Regulation, for the
determination of normal value, it was first established, for each of the three
exporting producers, whether their total domestic sales of the like product
during the RIP were representative in comparison to their total export sales to
the European Union, i.e. if sales volumes of the like product intended for
domestic consumption represented 5 % or more of their exports of the product
concerned to the European Union.
(29)     The
domestic sales of the like product were found to be representative for one of
the three sampled companies.
(30)     It
was subsequently examined whether the types of the like product sold by this
company and intended for domestic consumption were identical or directly
comparable to the types for export to the Union. For each of the those types,
it was established whether sales of the like product intended for domestic
consumption were sufficiently representative for the purposes of Article 2(2)
of the basic Regulation. Sales intended for domestic consumption were
sufficiently representative when they represented 5 % or more of the total
sales volume of the comparable type exported to the European Union.
(31)     It
was found that, for this company, only one of the types of the like product
were directly comparable to the type exported to the European Union. Moreover,
this particular type was also sold in sufficiently representative quantities on
the domestic market.
(32)     It
was subsequently examined whether the product type for the company referred to
in the previous recital was sold in the ordinary course of trade pursuant to
Article 2(4) of the basic Regulation. This was done by establishing the
proportion of profitable domestic sales to independent customers for the
product type concerned.
(33)     It
was found that more than 80 % of the volume of sales intended for domestic
consumption was profitable and in accordance with Article 2(4), all
transactions for this particular type were used for determining the normal
value.
(34)     For the type of the product concerned where the domestic sales were
representative and made in the ordinary course of trade, normal value was
established on the actual domestic price, calculated as a weighted average of
all the domestic sales of that type during the RIP.
(35)     For
the remaining two exporting producers whose sales on the domestic market were
not considered to be representative (one of which did not sell the like product
for domestic consumption at all) and for the third exporting producer whose
overall sales were considered to be representative but where for a number of
types of the like product, the quantities sold on the domestic market were not
considered to be representative, the normal value had to be constructed
pursuant to Article 2(3) of the basic Regulation.
(36)     The
normal value was constructed by adding the cost of manufacturing for each
product type exported to the European Union and a reasonable amount for
selling, general and administrative costs (SG&A) and for profits.
(37)     In accordance with Article 2(6) of the basic Regulation, for the two
exporting producers who had sales intended for domestic consumption – at
quantities below or above 5% of their respective sales quantities to the
European Union – the SG & A and the profit margin were taken from the
respective company’s sales under the ordinary course of trade on the domestic
market. 
(38)     For
the third exporting producer which did not sell the like product for domestic
consumption, in accordance with Article 2(6)(a) of the basic Regulation, the
SG&A and profit used for this third exporting producer constituted the
weighted average of the SG&A and profit for the other two other exporting
producers referred to in the preceding recital. 
(39)     Two
interested parties disagreed with the methodology explained in (37), i.e. the
use of profit for the purpose of constructing a normal value when this profit
is based on domestic sales transactions at volumes below 5% of sales quantities
to the European Union. It considers that, when domestic sales transactions are
not considered to be in sufficient quantities to be representative, then the
profit from these transactions should neither be used.
(40)     However,
the same methodology has been used in the original investigation, and in the
absence of changed circumstances, the Commission considers that this
methodology is still valid for the purpose of this proceeding.
2.2.   Determination of the Export price
(41)     All
sales of the sampled exporting producers were made directly to unrelated
customers in the European Union. The sales price was thus established in
accordance with Article 2(8) of the basic Regulation, on the basis of prices
paid or payable by these independent customers in the European Union.
2.3.   Comparison and adjustments
(42)     The
comparison between the normal value and the export price was made on an
ex-works basis. In order to ensure a fair comparison account was taken of
differences which affect price comparability in accordance with Article 2(10)
of the basic Regulation.
(43)     Allowances
for differences in transport costs, insurance costs, handling and loading
costs, commissions and bank charges were granted when applicable and duly
justified.
(44)     Moreover,
in accordance with Article 2(10)(d) of the basic Regulation and pursuant to the
methodology applied in the original investigation, allowances were made for
difference in the level of trade for those exporting producers whose sales on
the domestic market is carrying its own brand, but whose sales to the European
Union is under a retailers brand. The adjustment level – calculated in the form
of a reduction of the profit margin used when constructing the normal value as
referred to in recital (33) - has been estimated on the basis of the
relationship of the profit margins obtained by the Union industry on their own
branded products and on all products. The profit margin was hence reduced by between
20% and 50 %..
(45)     Two
interested parties considered that the domestic market in Thailand and the European market cannot be compared, as the size of the market differs and
the fact that Thai producers sell under their own brand on the domestic market.

(46)     It
is first recalled that in Recital (22), it was established that sweet corn sold
on the Thai domestic market and sweet corn sold for exports to the European
market are alike within the meaning of Article 1(4) of
the basic Regulation.
(47)     Second, due to the
differences in the level of trade, an adjustment to the profit margin – a downward
adjustment by between 20% and 50 % of the profit margin generated from domestic, own-brand sales – was
made. This also follows the methodology used in the original investigation.
2.4.   Dumping during the RIP
(48)     On
the basis of the above, the dumping margins expressed as a percentage of the free-at-Union-frontier price, before duty,
were found to be between 8 % and 44 %.
3.      Development of imports should
measures be repealed
3.1.   Production capacity of the exporting
producers
(49)     The production of sweetcorn
is dependent on the access of freshly harvested corn that is delivered to the
canning factory directly after harvest. The freshly harvested corn should be
canned within 24 hours after harvest and thus the capacity to produce the
product concerned is directly linked to the availability of freshly harvested
corn.
(50)     In Thailand, the harvest season is around 9-10 months
a year, encompassing 2 harvests per year. When assessing the available
technical capacity to manufacture, season-related raw material constraints must
be included in the analysis.
(51)     The three exporting
producers that were included in the sample had a combined technical capacity of
between 130 000 ‑ 150 000 tonnes. The actual utilization rate
of available technical capacity varied between 50 % – 80 %.
(52)     Several interested parties argued
that, while acknowledging the methodology used in curtailing the technical
capacity with accessibility of raw materials, the available spare capacity was
exaggerated.
(53)     As already stressed in Recital
(50), technical capacity cannot be fully utilized due to the seasonal
unavailability of freshly harvested sweet corn. Still, the investigation has
shown that capacity utilisation figures of 80% and above are achieved by some
sampled producers, while for other sampled producers the capacity utilisation
was much lower. Since all producers have a comparable access to raw materials,
this lower capacity utilisation cannot only be explained by the seasonal
unavailability of freshly harvested sweet corn.
(54)     According to information
provided by the Thai Food Processors Association, the total export quantity of
Thailand to the rest of the world steadily increased by around 20% during the
period considered, reaching a volume of 150 000 – 200 000 tonnes
during the RIP. This shows that the quantities of available sweet corn can and effectively
do increase steadily when additional quantities are needed by exporting
producers. In this respect, it is noted that the total production of yellow
corn ranged from 4,1 million – 4,5 million tonnes in Thailand during the period considered. While it is acknowledged that the production cannot
be switched from yellow corn to sweet corn on a 1:1 basis, the sheer magnitude
of the difference in production volumes makes it clear that even a small shift
in the production quantities from yellow corn to sweetcorn can have a substantial
impact on the total sweetcorn production in Thailand.
(55)     On this basis, it was
established that the three sampled producers could produce an additional
quantity of around 40 000 – 60 000 tonnes per year ('effective spare
capacity'), which is around 2 to 3 times the total exports from Thailand of the
product concerned to the EU.
(56)     The effective spare
capacity of the sampled producers alone can therefore be considered
significant. In addition, there are another 15 known producers of the product
concerned in Thailand, which similarly have access to the vast production of
sweet corn in Thailand.. 
(57)     From information collected
from other sources, i.e.
–     
information collected from exporting producers’
internet presentations, 
–     
information collected in relation to the
sampling exercise, and 
–     
information collected under the data-base set up
under Article 14(6) of the basic Regulation, 
it can be concluded that at least two major
exporting producers, one of which co-operated in the review investigation but
was not selected for the sample (and hence did not supply any detailed
information in this regard), have a combined capacity of between 50.000 –
100.000 tonnes.
(58)     Finally, there is no
evidence to suggest that the level of consumption on the Thai domestic market
or third country markets would increase which could absorb increased production
if spare capacity of the Thai producers is used. In particular, the Thai
domestic market is tiny, and on average only accounted for 1% ‑ 2% of
total sales of all sampled Thai producers. This confirms that any additional
production of sweet corn will be exported outside Thailand.
3.2.   Attractiveness of the Union market
(59)     When
comparing the export prices of the product concerned to the European Union with
the prices charged for the like product on the domestic market, two facts have
emerged: on the domestic market the prices are relatively high (due to
own-brand sales) and the volumes are relatively small as compared to the export
sales. On this basis, there is no apparent risk of trade diversion from sales
on the domestic market to sales to the European Union should measures be
repealed. 
(60)     When comparing the export
prices of the product concerned to the European Union with the prices charged
for the like product on third country markets, it emerges that for the 3
sampled exporting producers prices to the European Union are – on average – 14
% higher. 
(61)     Trade
Statistics from the Thai Customs also confirms this finding. After conversion
of the logistical weight (can + corn + liquid) reported into canned net weight
(corn + liquid) following the methodology in the application for the review,
the prices per kg charged to the European Union are – on average – 5 % higher
than to third countries.
(62)     While
several parties have expressed doubts that a price difference of 5% or 14% is
be significant enough to result in a trade diversion to the EU, the
investigation has shown that this is indeed likely in the sweetcorn market. In
the present proceeding, one Thai company (Karn Corn) previously obtained a duty
rate which is 8% ‑ 10% lower than that of most other Thai exporters. This
advantage of 8% ‑ 10% was however sufficient to increase their share in
Thai exports to the EU seven times between the IP of the original investigation
and the RIP of the current investigation.
(63)     In addition, despite the
anti-dumping duty of 3,1% in force, Karn Corn more than doubled their export
quantities to the EU since the imposition of the anti-dumping duties. This
shows the attractiveness of the EU market compared to other markets even in the
case of a small price differential.
(64)     To
conclude, whereas the risk for trade diversion from the domestic market to the
Union market is rather limited due to the existence of own-brand sales on the
former, there is a significant risk for trade diversion from sales to third
countries to the Union market due to the higher prices prevailing on the
latter.
(65)     Several interested parties argued
that the prices on the European market are comparably less attractive when
comparing with prices in other countries such as Japan. Thus, the risk for
trade diversion should measures be repealed would be exaggerated.
(66)     It is recalled that sales
to third countries are treated as a group and the conclusion drawn in Recital (63)
is based on prices to all third countries on average. It is fully acknowledged
that, within this group to third countries, there are countries to which export
prices are higher, and there are other third countries which carry lower export
prices. Obviously, the lower the export price, the higher the risk for trade
diversion should measures lapse.
(67)     Moreover, one interested
party argued that contractual links with importers in third countries will not
make an easy switch between customers in different countries.
(68)     While contractual links
between exporting producers in Thailand and importers in various third
countries may exist and are upheld in the short term, there is no evidence to
suggest that these contractual obligations could not be phased out as to enable
sales to markets with higher prices such as the European Union.
(69)     Finally, interested parties
claimed that exports to some third countries such as South Korea cannot be
compared, as the product mix (e.g. size of cans) and sales conditions (e.g. shipping
terms) may be different.
(70)     It is recalled that the
outcome of the comparisons in Recitals (58) – (60) are indicators of
differences in export prices to all third countries. The impact of any
issue concerning Thai exports to a small number of markets on the overall
comparison is therefore by nature limited. In addition, since Thai export data
is recorded on an FOB basis, the impact of any difference in shipping terms or
shipping cost is limited to the cost of domestic freight inside Thailand and can therefore only be insignificant.
(71)     In the absence of any
evidence suggesting that the average price to all third countries is not comparable
with the export price to the European Union, the conclusion drawn in Recital (63)
is valid.
4.         Conclusion on the
likelihood of continuation or recurrence of dumping 
(72)     It appears likely that
should the measure be repealed the relatively higher price level on the
European Union market will attract significant volumes of the product concerned
that are currently sold at lower prices to third countries.
(73)     The exporting producers of Thailand have continued their dumping practised during the RIP.
(74)     Moreover, the available
spare capacity in Thailand and the fact that prices of the European Union
market are considerably higher than on third country markets brings to the
conclusion that there is a risk for increases in the exports of the product
concerned should measures be repealed.
(75)     To conclude, there is a
strong likelihood for continuation of dumping should measures be repealed.
D.        DEFINITION OF THE UNION
INDUSTRY
(76)     During the RIP, the like
product was manufactured by around 20 producers in the Union. The output of
these producers (established on the basis of the information collected from the
cooperating producers and for the other Union producers on the data from the review
request) is therefore deemed to constitute the Union production within the
meaning of Article 4(1) of the basic Regulation
(77)     As
explained above under recital (13), due to the large number of Union producers,
a sample was selected. For the purpose of the injury analysis, the injury
indicators have been established at the following two levels: 
- The macroeconomic elements (production,
capacity, sales volume, market share, growth, employment, productivity, average
unit prices and magnitude of dumping margins and recovery from the effects of
past dumping) were assessed, at the level of the whole Union production, on the
basis of the information collected from the cooperating producers and, for the
other Union producers, an estimation based on the data from the review request
was used.
- The analysis of microeconomic elements (stocks,
wages, profitability, return on investments, cash flow, ability to raise
capital and investments) was carried out for the sampled Union producers on the
basis of their information.
E.         SITUATION ON THE UNION
MARKET
1.      Union consumption
(78)     Union consumption was
established on the basis of the sales volumes of the Union industry’s own
production destined for the Union market, the import volumes data on the Union
market obtained from the 14.6 database and, concerning the other Union
producers, from information available from the request.
(79)     Throughout
the period considered, the EU consumption has increased by 9 %. While from 2008
to 2009 it decreased by 5 %, in 2010 and in 2011 it increased respectively by 6
and 9 percentage points (i.e. compared to the previous year). Then it more or
less stabilised during the RIP at a level of around
350 000 tonnes. 
   || 2008 || 2009 || 2010 || 2011 || RIP 
 Total EU consumption (tonne) || 318 413 || 301 594 || 320 027 || 351 279 || 347 533 
 Index (2008=100) || 100 || 95 || 101 || 110 || 109 
2.      Imports from the country concerned
(a) Volume 
(80)     The volume of imports of
the product concerned from the country concerned into the Union decreased by 43 %,
from around 38 000 tonnes in 2008 to around 22 000 tonnes in the RIP. It
decreased by 15 % in 2009, by a further 20 percentage points in 2010 and
another 11 percentage points in 2011, before slightly increasing again by 3
percentage points in the RIP. 
   || 2008 || 2009 || 2010 || 2011 || RIP 
 Volume of imports from Thailand || 38 443 || 32 616 || 24 941 || 20 710 || 21 856 
 Index (2008=100) || 100 || 85 || 65 || 54 || 57 
 Market share of imports from Thailand || 12% || 11% || 8% || 6% || 6% 
 Price imports from Thailand (€/tonne) || 835 || 887 || 806 || 775 || 807 
 Index (2008=100) || 100 || 106 || 96 || 93 || 97 
Source: 14.6 database
(b) Market
share 
(81)     The
corresponding market share held by Thai exporters on the Union market in the
country concerned gradually decreased by around 50 % or 6 percentage
points during the period considered, from 12 % in 2008 to 6 % in the RIP.
In detail, the Thai market share decreased from 12% in 2008 to 11% in 2009 to 8
% in 2010 and to 6 % in 2011/RIP.
(c) Prices
(i) Price
evolution 
(82)     Between
2008 and the RIP, the average price of imports of the product concerned
originating in the country concerned declined by 3 %, from 835 EUR/tonne
in 2008 to 807 EUR/tonne in the RIP. Specifically, prices increased by 6 %
in 2008 before decreasing by 10 percentage points in 2010 and by a further 3
percentage points in 2011. From 2011 to the RIP, these prices increased again
by 4 percentage points. 
(ii) Price
undercutting 
(83)     A price comparison for similar product types was made
between the exporting producers' and the Union industry's selling prices in the
Union. To this end, the
Union industry’s ex-works prices net of all rebates and taxes have been
compared with the CIF Union frontier prices of exporting producers of the
country concerned, duly adjusted for conventional duties, unloading and customs
clearance costs. The comparison showed that during the RIP the prices of the product
concerned originating in the country concerned sold in the Union were overall
higher than the Union industry's prices. Also, based on
import statistics (14.6 database), there was no undercutting margin for all
Thai imports into the EU (for both cooperating exporters as well as
non-co-operators, regardless of the product mix).
3.      Situation of the Union industry
(84)     Pursuant
to Article 3(5) of the basic Regulation, the Commission examined all relevant
economic factors and indices having a bearing on the state of the Union
industry.
(85)     This
market is inter alia characterized by the existence of two sales
channels, i.e. sales under the producer's own brand and sales under retailer's
brand. Sales under the first channel, as compared to the second channel, will
usually trigger higher selling costs intended notably for marketing and
advertising, and will also command higher selling prices. 
(86)     The investigation evidenced that all imports from the
co-operating Thai exporters pertained to the second channel, i.e. the
retailer's brand channel. Therefore, it was considered appropriate to
distinguish in the injury analysis between Union industry's sales under its own
brand and under the retailer's brand wherever relevant, as dumped imports compete
in the first place with Union industry's like products sold under the
retailer's brand. This distinction was made in particular for the determination
of sales volumes, sales prices and profitability. However, for the sake of
completeness, totals (including both own brand and retailer's brand) are also
shown and commented in the tables below. During the RIP, Union industry's sales
under the retailer's brand accounted for around 70 % of the total Union
industry’s sales volume and around 60 % of their sales value.
(87)     Given that in the Union sweetcorn is only processed during the summer months, a number of injury indicators
are virtually identical for 2011 and the RIP (1 April 2011 to 30 March 2012).
This applies in particular to production and production capacity. 
3.1. Macroeconomic elements
(a) Production
(88)     From a level of around 372.000 tonnes in 2008, the Union
industry’s production decreased by 8 % during the period considered. Specifically, it declined by 25 % in 2009 and by 13 percentage
points in 2010 and it increased again by 31 percentage points in 2011/RIP. 
   || 2008 || 2009 || 2010 || 2011 || RIP 
 Production (tonne) || 371 764 || 279 265 || 231 790 || 344 015 || 343 873 
 Index (2008=100) || 100 || 75 || 62 || 93 || 92 
(b) Capacity
and capacity utilisation rates
(89)     Production
capacity was around 488 000 tonnes in 2008, 2009 and 2010 and it decreased by 9
% in 2011/RIP. The decrease was due to the fact that one of the sampled EU
producers closed one of its plants. 
   || 2008 || 2009 || 2010 || 2011 || RIP 
 Production capacity (tonne) || 488 453 || 488 453 || 488 453 || 444 055 || 444 055 
 Index (2008=100) || 100 || 100 || 100 || 91 || 91 
 Capacity utilisation || 76% || 57% || 47% || 77% || 77% 
 Index (2008=100) || 100 || 75 || 62 || 102 || 102 
Source: Investigation
(90)     Capacity
utilisation was 76 % in 2008. It declined to 57 % in 2009 and further
to 47 % in 2010 before picking up to 77% in 2011/RIP. Over the whole period
considered, capacity utilisation has been stable because the decreasing production
has been in line with the decreasing production capacity. 
(c) Sales
volume 
(91)     The sales of the Union industry of its production intended
for the retailer's brand on the Union market to unrelated customers first
decreased by 6 % in 2009, before increasing by 17 percentage points in 2010
and further by 24 percentage points in 2011. From 2011 to the RIP these sales
decreased again by 4 percentage points. Altogether,
between 2008 and the RIP, these sales increased by around 31 %. 
   || 2008 || 2009 || 2010 || 2011 || RIP 
 EU Sales volume (retailer’s brand) to unrelated customers (tonne) || 161 544 || 151 058 || 179 562 || 218 876 || 212 425 
 Index (2008=100) || 100 || 94 || 111 || 135 || 131 
 EU Sales volume (own and retailer’s brand) to unrelated customers (tonne) || 262 902 || 248 995 || 280 586 || 318 237 || 312 623 
 Index (2008=100) || 100 || 95 || 107 || 121 || 119 
Source: Investigation
(92)     Total
(both own and retailer's brand) Union industry's sales of its production on the
Union market to unrelated customers followed more or less a similar pattern,
although less pronounced. They first decreased by 5 % in 2009, before
increasing by 12 percentage points in 2010 and further by 14 percentage points
in 2011. From 2011 to the RIP these sales decreased again by 2 percentage
points. Altogether, between 2008 and the RIP, these sales increased by around
19 %. 
(d) Market
share
(93)     The
market share held by the Union industry was 83 % in 2008 and 2009. It increased
to 88% in 2010 and to 91% in 2011 before decreasing slightly to 90 % in the RIP.
Altogether, the market share held by the Union industry over the period
considered increased by 7 percentage points. 
   || 2008 || 2009 || 2010 || 2011 || RIP 
 Market share of the Union industry (own and retailer’s brand) || 83% || 83% || 88% || 91% || 90% 
 Index (2008=100) || 100 || 100 || 106 || 110 || 109 
Source: Investigation
(e) Growth
(94)     Between 2008 and the RIP,
when the Union consumption increased by 9 %, the volume of sales intended for
the retailer's brand of the Union industry on the Union market increased by
31 %, whilst the volume of Union industry's sales intended for both own
and retailer's brand on the Union’s market increased by 19 %. Between 2008
and the RIP, the Union industry gained around 7 percentage points of market
share, whereas dumped imports lost around 6 percentage points of market share.
It is thus concluded that the Union industry was able to benefit from a growing
market.
(f)
Employment
(95)     The employment level of the
Union industry first decreased by 17 % between 2008 and 2009, then
declined by 5 percentage points in 2010 and increased by 11 percentage
points in 2011/RIP. Overall, employment of the Union industry declined by
11 % over the period considered, i.e. from around 2 300 persons
to around 2 000 persons. 
   || 2008 || 2009 || 2010 || 2011 || RIP 
 Employment (persons) || 2 278 || 1 896 || 1 786 || 2 038 || 2 035 
 Index (2008=100) || 100 || 83 || 78 || 89 || 89 
Source: Investigation
(g)
Productivity 
(96)     Productivity of the Union
industry's workforce, measured as output (tonnes) per person employed per year,
starting from a level of 163 tonnes per employee, first decreased by 10 %
in 2009 and further by 10 percentage points in 2010, subsequently increased by
23 percentage points in 2011 and by 1 percentage point in the RIP. Altogether,
productivity of the Union industry increased by 4% over the period considered.
This development reflects the fact that the drop in workforce was sharper than
that of the production. 
   || 2008 || 2009 || 2010 || 2011 || RIP 
 Productivity (tonne per employee) || 163 || 147 || 130 || 169 || 169 
 Index (2008=100) || 100 || 90 || 80 || 103 || 104 
Source: Investigation
(h) Factors
affecting sales prices 
(97)     Unit prices for Union industry's sales of retailer's brand
products to unrelated customers increased by 7 % in 2009 and decreased by 8
percentage points in 2010 and further by 5 percentage points in 2011. From 2011
to the RIP they increased by 3 percentage points. Altogether, these prices
decreased by 3 % over the period considered from a level of 1 073 EUR/tonne to
1 041 EUR/tonne in the RIP.
   || 2008 || 2009 || 2010 || 2011 || RIP 
 Unit price EU market (retailer’s brand) (EUR/tonne) || 1 073 || 1 152 || 1 057 || 1 008 || 1 041 
 Index (2008=100) || 100 || 107 || 99 || 94 || 97 
 Unit price EU market (own and retailer’s brand) (EUR/tonne) || 1 248 || 1 305 || 1 219 || 1 182 || 1 215 
 Index (2008=100) || 100 || 105 || 98 || 95 || 97 
Source: Investigation
(98)     Total
(both own and retailer's brand) Union industry's sales prices on the Union
market to unrelated customers followed more or less a similar pattern. They
increased by 5 % in 2009 and decreased by 7 percentage points in 2010 and
further by 3 percentage points in 2011. From 2011 to the RIP they increased by
2 percentage points. Altogether, these prices decreased by 3 % over the period
considered from a level of 1 248 EUR/tonne to 1 215 EUR/tonne in the RIP. 
(i) Magnitude
of dumping margin 
(99)     The investigation has
established a continuation of dumping and the magnitude of the actual margins
of dumping (i.e. up to 44%) cannot be considered to be negligible.
(j) Recovery
from past dumping
(100)   The macro-indicators
examined above and the micro-indicators examined below show that, although the
anti-dumping measures have partially achieved their intended result of removing
injury suffered by the Union producers, the industry is still in a vulnerable
and fragile situation. Indeed the performance on the retailer-branded segment
which is in direct competition with the Thai imports is poor in terms of
profitability. Sales prices of the Union industry in this market segment
decreased by 3 % over the period considered, whereas production costs increased
by about 10 % over the same period. Clearly, the Union industry has not been in
a position to recover its costs which resulted in significant losses. Given the
importance of the retailer’s brand in the Union industry’s sweetcorn business
(representing 70% of its total sales volume and 60% of its total sales value)
this has weighted on the overall profitability. Thus, no actual recovery from
the past dumping could be established and it is considered that the Union
industry remains vulnerable to the injurious effects of any dumped imports in
the Union market.
3.2. Microeconomic elements
(a) Stocks 
(101)   The level of closing stocks
of the Union industry has been continuously decreasing over the period
considered. It decreased by 2 % in 2009, by 27 percentage points in 2010,
by 2 percentage points in 2011 and further by 24 percentage points during the
RIP. However, it should be noted that the level of inventories is not a
meaningful indicator of injury for this particular industry. The high level of
inventories at the end of each year is linked to the fact that the harvest and
the canning typically end in October each year. Stocks are therefore goods awaiting
dispatching during the period November to July. 
   || 2008 || 2009 || 2010 || 2011 || RIP 
 Closing stock (tonne) || 193 834 || 189 741 || 136 703 || 133 884 || 88 108 
 Index (2008=100) || 100 || 98 || 71 || 69 || 45 
Source: Investigation
(b) Wages 
(102)   Between 2008 and the RIP,
the labour costs decreased by 7 %. Specifically, it decreased by 16 % in
2009, by a further 1 percentage points in 2010 and it increased by 10
percentage points during 2011/RIP. The overall decrease over the period
considered is driven by the decrease in employment. 
   || 2008 || 2009 || 2010 || 2011 || RIP 
 Annual labour cost (EUR) || 34 343 788 || 28 850 250 || 28 370 188 || 31 952 596 || 31 923 505 
 Index (2008=100) || 100 || 84 || 83 || 93 || 93 
Source: Investigation
(c)
Profitability and return on investments
(103)   During the period considered, the profitability of the Union
industry's sales of products intended for retailer's brand, expressed as a
percentage of net sales, declined from a profit of
5,6 % in 2008 to a loss of 5,4 % in the RIP.
   || 2008 || 2009 || 2010 || 2011 || RIP 
 Profitability of EU (retailer’s brand) (% of net sales) || 5.6% || 9.6% || -3.3% || -8.2% || -5.4% 
 Index (2008=100) || 100 || 169 || -59 || -145 || -95 
 Profitability of EU (own and retailer’s brand) (% of net sales) || 8.5% || 10.8% || 0.7% || -0.5% || 1.6% 
 Index (2008=100) || 100 || 127 || 8 || -6 || 19 
 ROI (own and retailer’s brand) (profit in % of the net book value of investment) || 24.3% || 40.4% || 2.9% || -3.0% || 4.4% 
 Index (2008=100) || 100 || 166 || 12 || -13 || 18 
Source: Investigation
(104)   The
profitability of the Union industry's sales of products intended for both own
brand and retailer's brand declined as well from 8,5 % in 2008 to 1,6 % in the
RIP. The decline is thus less steep than for sales under retailer's brand
alone. The decrease in profitability is explained
by the fact that sales prices over the period considered decreased by 3% whereas
production costs (predominantly unprocessed sweetcorn and cans) increased by 5%
over the same period. Clearly, the Union industry has not been in a position to
pass on the increased production cost to its customers. 
(105)   The return on investments
(‘ROI’), expressed as the profit (for both own and retailer's brand) as a
percentage of the net book value of investments, broadly followed the profitability
trend. It declined from a level of around 24,3 % in 2008 to 4,4 % in the RIP,
thus decreasing by 82% over the period considered.
(d) Cash flow
and ability to raise capital 
(106)   The net cash flow from
operating activities stood at around 27 000 EUR in 2008. It increased to around
23 million EUR in 2009 and to around 58 million EUR in 2010 before decreasing
again to around 8 million EUR in 2011. From 2011 to the RIP it increased to
around 11 million EUR. None of the co-operating Union producers indicated that they
experienced difficulties to raise capital.
   || 2008 || 2009 || 2010 || 2011 || RIP 
 Cash flow (own and retailer’s brand) (EUR) || 26 698 || 23 239 572 || 58 654 064 || 7 845 330 || 11 077 815 
 Index (2008=100) || 100 || 87 047 || 219 698 || 29 386 || 41 494 
Source: Investigation
(e)
Investments 
(107)   The Union industry's annual
investments in the production of the like product increased by 45 % from 2008
to 2009, decreased by 34 percentage points from 2009 to 2010, increased by 57
percentage points in 2011 and finally decreased by 4 percentage points from
2011 to the RIP. All in all, over the period considered, investment increased
by 64 %, which was intended for the maintenance and renewal of existing
equipment and not for capacity increase purposes.
   || 2008 || 2009 || 2010 || 2011 || RIP 
 Net investments (EUR) || 6 590 078 || 9 545 749 || 7 329 354 || 11 093 136 || 10 802 751 
 Index (2008=100) || 100 || 145 || 111 || 168 || 164 
Source: Investigation
4.      Conclusion on injury
(108)   A number of indicators
experienced a negative development between 2008 and the RIP. Return on
investment declined, the production volume decreased by 8 %, production capacity
decreased by 9 %, and employment decreased by 11 %. With respect to lower
production levels we need to note that the yield of the crops in 2008 was
better than expected and led to higher output for the Union industry in the
same year. During the same period, imports from Thailand (which are primarily
invoiced in USD) became more attractive because of a weaker USD. This increase
in (both European as well as Thai) sweetcorn supply coincided with the economic
and financial crisis in the EU which had an impact on consumption. As a result,
the increased EU production could not be entirely sold on the EU market. This
led to a reduced production level and de-stocking in the following years but
cannot explain fully the injury suffered.
(109)   The profitability of the
Union industry’s sales of sweetcorn (both own and retailer’s brand) decreased significantly
over the period considered. The retailer-branded segment, where the EU industry
has to face competition from the Thai imports, is clearly loss-making
(profitability declined from a profit of more than 5 % in 2008 to a loss
of more than 5 % during the RIP). The EU producers decreased their sales prices
on the Union market by 3 % and managed to re-gain market share at the expense
of their profitability. The industry needs the retailer-branded sales as there
is no sufficient demand for own brand and given that the retailer-branded sales
represent around 60 % of the total sales value, the overall profitability
decreased from 8,5 % to 1,6 % over the period considered. 
(110)   Some indicators suggest that
thanks to the measures in place the industry regained its position. The volume
of Thai imports and their corresponding market share nearly halved, from 12 %
in 2008 to only 6 % in the RIP. The Union industry’s market share increased
from 83 % in 2008 to 90 % in the RIP. Moreover, during the RIP, the average
prices of the Thai imports did not undercut those of the Union industry, but at
the same time they have prevented the Union industry from passing on cost
increases to customers. Also other indicators marked positive development. Capacity
utilisation increased by 2 % over the period considered and was rather high at
77 % during the RIP. The volume of the Union industry's retailer-branded sales,
which are in direct competition with Thai imports, increased by 31% and total
sales for both segments combined increased by 19 %. Investment increased by 64 %.
These factors suggest that the industry was able to recover. However, it was
not able to reach satisfactory profitability levels to maintain a substantial
market share on a market where only EU industry and Thai imports compete
(imports from other third countries are dispersed and insignificant). 
(111)   The competition situation on
the EU market is indeed delicate. On the one hand, for one part of the market –
the own-branded segment – the EU industry does not face outside competition.
The negotiating power of brand owners vis-à-vis retailers is strong. Indeed,
they are price-setters. The market is also consolidated with the four sampled
producers holding 54 % market share. On the other hand, the retailers have an
upper hand in the segment of private brands. Due to outside competition and
competition within the Union, prices are constantly under pressure. As a
result, it is more difficult for EU producers to pass on production cost
increases (predominantly sweetcorn or cans) to their customers (production
costs of the Union industry have increased by 5 % over the period considered)
due to the price pressure exercised by Thai imports. 
(112)   Clearly,
the Union industry has been able to increase its market share by favouring
volumes over prices. On the other hand, it cannot be ignored that for a
majority of its sweetcorn business (the retailer’s brand) it has not been able
to recover its costs. Therefore, it can be concluded that the situation of the Union
industry is still vulnerable and fragile.
(113)   Several parties have
commented that the Union industry has recovered given that a number of
indicators have improved and in particular in view of the Union industry’s high
market share and the negative undercutting. 
(114)   It is recognised that the
injury picture of the Union industry is mixed. The anti-dumping measures have
partially achieved their objective by removing some of the injury suffered by
the Union industry as a consequence of dumped imports from Thailand. However, on balance, in particular taking into account the low and decreasing
profitability, the situation of the Union industry is still fragile.
(115)   Negative undercutting and a
strong market share of the Union industry do not automatically point to lack of
injury. The situation of continued dumped imports from Thailand (with dumping margins of up to 44%) has resulted in price suppression on the EU
market. The Union industry, in an attempt to regain lost market share, has kept
prices down which has resulted in a deterioration of profitability. 
(116)   One interested party claimed
that the injury assessment should be based on the Union industry’s overall
performance and not on the performance of one segment of the market.
(117)   In line with the original
investigation, the injury assessment has been based on the Union industry’s
overall performance (own brand + retailer’s brand) as well as, for a number of
injury indicators (profitability, sales volume and sales prices) on the
retailer’s brand. There are no changed circumstances which would justify a
deviation from this methodology, which remains valid for assessing the
situation of the EU industry. As mentioned in recitals (84) and (85), the
sweetcorn market is still characterised by the existence of two sales channels
and all imports from the co-operating Thai exporters pertained to the
retailer’s brand channel.. In addition, even if only the Union industry’s
overall performance would be taken into account, it would, in view of the low
and decreasing profitability, not alter the conclusion that the Union industry
is in a fragile situation. Based on the above considerations, the claim is
rejected. 
(118)   Two interested parties
claimed that the inability of the Union industry may well result from
competition within the EU.
(119)   However, the situation on
the EU market with regard to competition is not fundamentally different from
the situation in the period considered in the original investigation (existence
of two sales channels, around 20 EU producers). Nevertheless, in 2002, before
Thai exports started to enter the EU market at dumped prices, the Union
industry has achieved a profit level of more than 20% overall (own brand + retailer’s
brand) and 17% on the retailer’s brand. This demonstrates that competition in
the EU is not preventing the Union industry from achieving healthy profit
margins. It is rather the continued presence of dumped imports and the
resulting price suppression that prevents the Union industry from increasing
its prices. 
F.         LIKELIHOOD OF RECURRENCE
OF INJURY
(120)   On the basis of the above
trends, it appears that the anti-dumping measures have partially achieved their
intended result of removing injury suffered by the Union producers. On the
other hand, as evidenced by the negative development of a number of injury
indicators, the industry is still in a vulnerable and fragile situation. 
(121)   As
mentioned above, Thai exporters do have the spare capacity to increase their
exports very rapidly. In addition, Thai trade statistics confirm that Thailand has exported around 140 000 tons to third
countries in 2011, which is about 7 times the Thai export volume to the EU. Given
the more lucrative prices on the EU market compared to some third country
markets, it is likely that significant quantities currently exported to these
countries will be re-directed to the EU market in case the anti-dumping
measures would be allowed to lapse. Such an abrupt development was already
observed in the original investigation, when the market share of EU imports
from Thailand nearly doubled in only three years, i.e. from 6,8% in 2002 to
12,7% in 2005. 
(122)   Therefore, on the basis of
the above, it can be concluded that there is a likelihood of recurrence of
injury in case the measures were repealed. 
(123)   Several interested parties
have expressed doubts about the conclusion of likelihood of recurrence of
injury. It is claimed in particular that a 5% price difference between the EU and
third country markets is too small to re-direct sweetcorn exports to the EU
market. This argument is already addressed in recital (61) above. In addition,
it is claimed that sweetcorn is not a commodity which could easily be switched
between markets. This argument has however not been substantiated, and does not
correspond to the findings of this investigation
(124)   Although the likelihood of
recurrence of injury is a prospective assessment, it is based on the facts
mentioned in recital (121). Therefore, the claim is rejected.
G.        UNION INTEREST
(125)   In accordance with article
21 of the basic Regulation it was examined whether the maintenance of the
existing anti-dumping measures would be 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 of Article 21(2) of the basic
Regulation.
1.      Interest
of the Union industry
(126)   As
mentioned above, the Union industry is still in a somewhat fragile and
vulnerable situation. It would use the relief of a continuation of the measures
to increase its sales prices (in particular for the retailer’s brand) in order
to recover its increased production costs. This would allow the industry to
improve its financial situation. 
2.      Interest
of the retailers and consumers
(127)   Cooperation has been sought
from more than 40 importers/retailers and two consumer/trading organisations.
Only one retailer has cooperated. Its imports represented a small fraction of
the total imports from Thailand during the RIP. The share of its
sweet-corn-related turnover was negligible compared to its total turnover. In
addition, the re-sales of sweetcorn generated a very high profit during the
RIP. These factors suggest that retailers would not be disproportionately
affected, even if measures were to be extended.
(128)   At the same time, a number
of trade associations made submissions and attended a hearing. They claim that
anti-dumping measures should be discontinued due to the low and decreasing
market share of Thai imports coinciding with the high and increasing market
share of the Union industry. 
(129)   As far as consumers are
concerned, the average spending in sweetcorn per household is very limited, up
to 5€ per year. Taking into account the moderate level of the current measures,
the effects of the continued imposition of measures would likely be negligible for
the consumers. 
(130)   In light of the above and
given the overall low degree of co-operation, it is therefore considered that the
situation of retailers and of consumers in the Union is unlikely to be
substantially affected by the proposed measures.
3.      Risk
of supply shortages / competition on the EU market
(131)   It should first be recalled
that the aim of anti-dumping measures is not to stop access into the Union for
imports on which the measures are imposed, but to eliminate the impact of
distorted market conditions arising from the continued presence of dumped
imports.
(132)   The EU consumption increased
by 9 % during the RIP, reaching around 350 000 tonnes. The Union industry’s
capacity has continuously exceeded EU demand over the period considered,
reaching a level of around 440 000 tonnes in the RIP. There is sufficient
competition between the EU producers. Operating at a capacity utilisation rate
of 77 % during the RIP, it appears that the Union industry has the spare
capacity to increase its production further in case of increased demand.
Imports from other third countries, notably USA and PRC can also satisfy part
of the demand. As mentioned above, it should be pointed out that the
anti-dumping measures are not intended to stop the imports from Thailand into the EU. Taking into account the low level of the measures, it is expected
that the Thai imports will continue to account for a certain share on the EU
market. 
(133)   Given the above
considerations, it cannot be concluded that maintaining the anti-dumping
measures would likely result in a shortage of supply on the EU market or a
restriction of competition on the EU market.
4.      Conclusion
on Union interest
(134)   Based on the above, it
appears that the negative effects of continuation of measures would be limited
and in any case not disproportionate to the benefits of the prolongation of
measures for the Union industry. 
H.        ANTI-DUMPING MEASURES
(135)   All parties were informed of
the essential facts and considerations on the basis of which it was intended to
recommend that the existing measures be maintained. They were also granted a period
to submit comments subsequent to that disclosure. The submissions and comments
were duly taken into consideration where warranted. 
(136)   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 certain prepared or preserved sweetcorn in
kernels originating in Thailand should be maintained. It is recalled that these
measures consist of an ad valorem duty at different rates.
(137)   The individual company
anti-dumping duty rates specified in this Regulation are solely applicable to
imports of the product concerned produced by these companies and thus by the
specific legal entities mentioned. Imports of the product concerned
manufactured by any other company not specifically mentioned in the operative
part of this Regulation with its name and address, including entities related
to those specifically mentioned, cannot benefit from these rates and shall be
subject to the duty rate applicable to 'all other companies'. 
(138)   Any claim requesting the
application of these individual anti-dumping duty rates (e.g. following a
change in the name of the entity or following the setting up of new production
or sales entities) should be addressed to the Commission[8]
forthwith with all relevant information, in particular any modification in the
company’s activities linked to production, domestic and export sales associated
with, for instance, that name change or that change in the production and sales
entities. If appropriate, the Regulation will then be amended accordingly by
updating the list of companies benefiting from individual duty rates,
HAS
ADOPTED THIS REGULATION:
Article 1
1.         A definitive anti-dumping duty
is hereby imposed on imports of 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 (TARIC code
2001 90 30 10) 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 (TARIC code 2005
80 00 10), originating in Thailand. 
2.         The rate of the definitive
anti-dumping duty applicable to the net, free-at-Union-frontier price, before
duty, of the products described in paragraph 1 and produced by the companies
below shall be as follows:
 Company || Anti-Dumping duty (%) || TARIC Additional Code 
 Karn Corn Co Ltd, 68 Moo 7 Tambol Saentor, Thamaka, Kanchanaburi 71130, Thailand || 3,1 || A789 
 Kuiburi Fruit Canning Co., Ltd, 236 Krung Thon Muang Kaew Building, Sirindhorn Rd., Bangplad, Bangkok 10700, Thailand || 14,3 || A890 
 Malee Sampran Public Co., Ltd, Abico Bldg. 401/1 Phaholyothin Rd., Lumlookka, Pathumthani 12130, Thailand || 12,8 || A790 
 River Kwai International Food Industry Co., Ltd, 52 Thaniya Plaza, 21st Floor, Silom Rd., Bangrak, Bangkok 10500 , Thailand || 12,8 || A791 
 Sun Sweet Co., Ltd, 9 M. 1, Sanpatong, Chiang Mai 50120, Thailand || 11,1 || A792 
 Manufacturers listed in the Annex I || 12,9 || A793 
 All other companies || 14,3 || A999 
3.         Unless otherwise specified, the
provisions in force concerning customs duties shall apply.
Article
2
Article 1(2) may be
amended by adding the new exporting producer to the cooperating companies not
included in the sample and thus subject to the weighted average duty rate of
12,9 % where any new exporting producer in Thailand provides sufficient
evidence to the Commission that: 
a) it did not export to
the Union the product described in Article 1(1) during the review investigation
period (1 April 2011 to 30 March 2012); 
b) it is not related to
any of the exporters or producers in Thailand which are subject to the measures
imposed by this Regulation; and 
c) it has actually exported to the Union
the product concerned after the review investigation period or it has entered
into an irrevocable contractual obligation to export a significant quantity to
the Union.
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 I
List of the cooperating manufacturers
referred to in Article 1(2) under TARIC additional code A793:
 Name || Address 
 Agro-On (Thailand) Co., Ltd. || 50/499-500 Moo 6 Baan Mai, Pakkret, Monthaburi 11120, Thailand 
 B.N.H. Canning Co., Ltd. || 425/6-7 Sathorn Place Bldg., Klongtonsai, Kongsan Bangkok 10600, Thailand 
 Boonsith Enterprise Co., Ltd. || 7/4 M.2, Soi Chomthong 13, Chomthong Rd. , Chomthong, Bangkok 10150, Thailand 
 Erawan Food Public Company Limited || Panjathani Tower 16th floor, 127/21 Nonsee Rd., Chongnonsee, Yannawa, Bangkok 10120, Thailand 
 Great Oriental Food Products Co., Ltd. || 888/127 Panuch Village Soi Thanaphol 2, Samsen-Nok, Huaykwang, Bangkok 10310, Thailand 
 Lampang Food Products Co., Ltd. || 22K Building, Soi Sukhumvit 35, Klongton Nua, Wattana, Bangkok 10110, Thailand 
 O.V. International Import-Export Co., Ltd. || 121/320 Soi Ekachai 66/6, Bangborn, Bangkok 10500 , Thailand 
 Pan Inter Foods Co., Ltd. || 400 Sunphavuth Rd, Bangna, Bangkok 10260, Thailand 
 Siam Food Products Public Co., Ltd. || 3195/14 Rama IV Road, Vibulthani Tower 1, 9th Fl., Klong Toey, Bangkok, 10110 Thailand 
 Viriyah Food Processing Co. Ltd. || 100/48 Vongvanij B Bldg, 18th Fl, Praram 9 Rd., Huay Kwang, Bangkok 10310 Thailand 
 Vita Food Factory (1989) Ltd. || 89 Arunammarin Rd., Banyikhan, Bangplad, Bangkok 10700, Thailand 
[1]               OJ L 343, 22.12.2009, p. 51.
[2]               OJ L 159, 20.6.2007, p. 14.
[3]               OJ L 260, 25.9.2008, p. 1.
[4]               OJ L 159, 20.6.2007, p. 42.
[5]               OJ L 246, 18.9.2009, p. 1.
[6]               OJ C 258, 2.9.2011, p. 11.
[7]               OJ C 175, 19.6.2012, p. 22.
[8]               European Commission, Directorate-General for Trade,
Directorate H, B-1049 Brussels, Belgium.