21.5.2009 EN Official Journal of the European Union L 125/1
COUNCIL REGULATION (EC) No 412/2009
of 18 May 2009
amending Regulation (EC) No 428/2005 imposing a definitive anti-dumping duty on imports of polyester staple fibres originating in the People’s Republic of China and Saudi Arabia, amending Regulation (EC) No 2852/2000 imposing a definitive anti-dumping duty on imports of polyester staple fibres originating in the Republic of Korea and terminating the anti-dumping proceeding in respect of such imports originating in Taiwan
THE COUNCIL OF THE EUROPEAN UNION
,
Having regard to the Treaty establishing the European Community, and in particular Article 233 thereof,
Having regard to Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (1) (‘the basic Regulation’), and in particular Article 9(4) thereof,
Having regard to the proposal submitted by the Commission after having consulted the Advisory Committee,
Whereas:
A.   PROCEDURE
(1) In October 1999, the Commission initiated an investigation (2) with regards to imports of polyester staple fibres (‘PSF’) originating in the Republic of Korea (‘original investigation’). In July 2000 provisional anti-dumping duties were imposed by Commission Regulation (EC) No 1472/2000 (3) and in December 2000 definitive anti-dumping duties were imposed by Council Regulation (EC) No 2852/2000 (4).
(2) Pursuant to Article 11(3) of the basic Regulation, the Commission initiated (5). an interim review (‘review investigation’) of the anti-dumping duties on imports of PSF originating, inter alia, in the Republic of Korea in December 2003. The duties on imports from the Republic of Korea were amended by Council Regulation (EC) No 428/2005 (6), hereinafter ‘Regulation 428/2005’.
(3) On 10 June 2005, Huvis Corporation (‘Huvis’) lodged a request (7) before the Court of First Instance of the European Communities (‘CFI’) to annul Article 2 of Regulation 428/2005 as far as the anti-dumping duty rate with regard to Huvis was concerned.
(4) On 8 July 2008, the CFI (8) annulled Article 2 of Regulation 428/2005 with regard to Huvis.
(5) The CFI found, inter alia, that the Institutions did not sufficiently justify the use of different methodologies applied in the original investigation on the one hand and the review investigation on the other hand when calculating Huvis’ individual duty rate. The findings of the Institutions in this regard were therefore considered inconsistent with Article 11(9) of the basic Regulation.
(6) Article 2 of Regulation 428/2005 was consequently annulled to the extent to which the anti-dumping duty imposed on exports into the European Community of goods produced and exported by Huvis exceeded that which would be applicable if the method applied in the original investigation had been used.
(7) It is recognised by the Courts (9) that, in cases where a proceeding consists of several steps, the annulment of one of these steps does not annul the complete proceeding. The anti-dumping proceeding is an example of such a multi-step proceeding. Consequently, the annulment of parts of the definitive anti-dumping Regulation does not imply the annulment of the entire procedure prior to the adoption of the Regulation in question. On the other hand, according to Article 233 of the Treaty establishing the European Community, the Community institutions are obliged to comply with the Judgment of the Courts of the European Communities. Accordingly, the Community Institutions, in so complying with the Judgment, have the possibility to remedy the aspects of the contested Regulation which led to its annulment, while leaving unchanged the uncontested parts which are not affected by the Judgment (10).
(8) This Regulation seeks to correct the aspects of the Regulation 428/2005 found to be inconsistent with the basic Regulation, and which thus led to the annulment of parts of that Regulation. It also draws, regarding exporters in the Republic of Korea that were willing to cooperate in the investigation that led to Regulation 428/2005, the consequences from Article 9(6) of the Basic Regulation. All other findings made in Regulation 428/2005, which were not contested within the time limits for a challenge and thus were not considered by the CFI and did not lead to the annulment of the contested Regulation, remain valid.
(9) Therefore, in accordance with Article 233 of the Treaty establishing the European Community, the anti-dumping duty rate for Huvis was re-calculated on the basis of the judgment of the CFI.
B.   NEW ASSESSMENT OF THE FINDINGS BASED ON THE JUDGMENT OF THE CFI
(10) In this Regulation, the aspect of the judgment that is addressed is the calculation of the dumping margin, more specifically the calculation of the adjustment made to the normal value for differences between the export price and the normal value in import charges in accordance with Article 2(10)(b) of the basic Regulation.
(11) As outlined in recitals (127) and (128) of the Regulation 428/2005, different methodologies were used to calculate the adjustment on the normal value in the original investigation on the one hand and in the above mentioned interim review on the other hand.
(12) Without ruling on the legality as such of the method used in the interim review to calculate the abovementioned adjustment, the CFI in its Judgment found that the Community Institutions had not demonstrated the existence of a change in circumstances which could justify a use of a different method from the one used in the original investigation, as required by Article 11(9) of the basic Regulation. It therefore annulled Article 2 of Council Regulation 428/2005 to the extent to which the anti-dumping duty imposed on exports into the Community of goods produced and exported by Huvis exceeded that which would be applicable if the method, used in the initial investigation, had been used to calculate the adjustment to the normal value for import charges.
(13) Therefore, the adjustment to the normal value for import duties was re-calculated on the basis of the method used in the original investigation.
(14) The comparison of the thus calculated weighted average normal value with the weighted average export price as found during the interim review by product type on an ex-factory basis showed the existence of dumping. The dumping margin established, expressed as a percentage of the CIF import price at the Community frontier, duty unpaid is 3,9 %.
(15) The individual rate calculated for Huvis had formed part of the basis for calculating the weighted average duty that should apply to non-sampled cooperating Korean exporters. Therefore the dumping margin for cooperating companies not included in the sample was recalculated. The new dumping margin for cooperating exporting producers not included in the sample established on the basis of a weighted average dumping margin is 4,4 %.
(16) One company, Woongjin Chemical Co., Ltd (formerly Saehan Industries Inc.), contacted the Commission and argued that its duty, too, should be adapted. However, since that company has not asked for annulment of its duty by the CFI its duty has become definitive.
C.   DISCLOSURE
(17) All interested parties concerned by the implementation of the judgment were informed of the proposal to revise the rates of anti-dumping duty applicable to Huvis Corporation and the non-sampled cooperating companies. They were also granted a period within which they could make representations subsequent to this disclosure in accordance with the provisions of the basic Regulation. Comments were taken into consideration where sufficiently substantiated and justified.
D.   CONCLUSION
(18) On the basis of the above the duty rate applicable to Huvis and the cooperating exporting producers not included in the sample should be amended accordingly. The amended rates should apply retroactively from the date that Regulation (EC) No 428/2005 came into effect,
The table in Article 2 of Regulation (EC) No 428/2005 concerning the definitive anti-dumping duty rates applicable on imports of synthetic staple fibres of polyesters, not carded, combed or otherwise processed for spinning, falling within CN code 5503 20 00 originating in the Republic of Korea, shall be replaced by the following:
Company Duty (%) TARIC additional code
Huvis Corporation
151-7, Samsung-dong, Gangnam-gu, Seoul
Woongjin Chemical Co., Ltd
(formerly Saehen Industries Inc.)
254-8, Kongduk-dong, Mapo-ku, Seoul
Sung Lim Co., Ltd
RM 911, Dae-Young Bldg, 44-1; Youido-Dong Youngdungpo-ku, Seoul
Dongwoo Industry Co. Ltd
729, Geochon-Ri, Bongwha-up, Bongwha-Kun, Kyoungsangbuk-do
East Young Co. Ltd
Bongwan #202, Gumi Techno Business Center, 267
Gongdan-Dong, Gumi-si, Kyungbuk
Estal Industrial Co.
845 Hokye-dong, Yangsan-City, Kyungnam
Geum Poong Corporation
62-2, Gachun-Ri, Samnam-Myon, Ulju-Ku, Ulsan-shi
Keon Baek Co. Ltd
1188-3, Shinsang-Ri, Jinryang-Eup, Kyungsan-si, Kyungbuk-do
Samheung Co. Ltd
557-12, Dongkyu-Ri, Pochon-Eub Pochon-Kun, Kyungki-do
All other companies 10,6 A999
The amounts of duties paid or entered into the accounts pursuant to Article 2 of Regulation (EC) No 428/2005 in its initial version and which exceeds those as established on the basis of Article 2 of Regulation (EC) No 428/2005 as amended by this Regulation, shall be repaid or remitted.
Repayment and remission shall be requested from national customs authorities in accordance with applicable customs legislation. In duly justified cases, the time limit of three years provided in Article 236(2) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (11) shall be extended for a period of two years.
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Union.
It shall apply from 18 March 2005.
This Regulation shall be binding in its entirety and directly applicable in all Member States.