17.5.2011 EN Official Journal of the European Union L 129/1
COUNCIL IMPLEMENTING REGULATION (EU) No 469/2011
of 13 May 2011
amending Regulation (EC) No 1292/2007 imposing a definitive anti-dumping duty on imports of polyethylene terephthalate (PET) film originating in India
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 anti-dumping Regulation’), and in particular Articles 9(4) and 14(1) thereof,
Having regard to Council Regulation (EC) No 597/2009 of 11 June 2009 on protection against subsidised imports from countries not members of the European Community (2) (‘the basic anti-subsidy Regulation’), and in particular Article 18(1) thereof,
Having regard to the proposal submitted by the European Commission (‘the Commission’) after having consulted the Advisory Committee,
Whereas:
1.   PROCEDURE
(1) On 10 December 1999 and following an investigation (‘the original anti-subsidy investigation’), the Council imposed, by Regulation (EC) No 2597/1999, a definitive countervailing duty on imports of polyethylene terephthalate (PET) film originating in India (3). Following an anti-dumping investigation (‘the original anti-dumping investigation’) and after imposition, by Commission Regulation (EC) No 367/2001, of a provisional anti-dumping duty on 24 February 2001 (4), a definitive anti-dumping duty on PET film originating in India was imposed by Regulation (EC) No 1676/2001 (5).
(2) On 8 March 2006, two Council Regulations concerning imports of PET film originating in India were published: Regulation (EC) No 367/2006 (6) which followed an expiry review investigation and maintained the definitive countervailing duty (‘the expiry review anti-subsidy Regulation’); and Regulation (EC) No 366/2006 (7) (‘the amending anti-dumping Regulation’) which followed a partial interim review investigation and amended the definitive anti-dumping duty on such imports.
(3) On 6 November 2007, following an expiry review, a definitive anti-dumping duty on imports of PET film originating in India was imposed by Council Regulation (EC) No 1292/2007 (8).
(4) On 20 May 2010, a notice (9) was published in the Official Journal of the European Union. In that notice, parties were informed that, in view of the judgment of the General Court of 17 November 2009 in Case T-143/06 (10) (‘the judgement’), imports into the European Union of PET film manufactured by MTZ Polyfilms Limited (‘MTZ Polyfilms’) are no longer subject to the anti-dumping measures imposed by the amending anti-dumping Regulation and Regulation (EC) No 1292/2007 and that definitive anti-dumping duties paid pursuant to these Regulations on imports of MTZ Polyfilms should be repaid or remitted. The notice also partially reopened the relevant anti-dumping review investigation concerning imports of PET film originating, inter alia, in India in order to implement the above judgment of the General Court as far as MTZ Polyfilms is concerned.
(5) The countervailing duty imposed by the expiry review anti-subsidy Regulation expired on 9 March 2011 (11) according to Article 18(1) of the basic anti-subsidy Regulation. In line with the principle that no product shall be subject to both anti-dumping and countervailing duties for the purpose of dealing with one and the same situation arising from dumping or from export subsidisation, the level of the anti-dumping duty rates imposed by Regulation (EC) No 1292/2007 was set taking into account the amount of the countervailing duty imposed by the expiry review anti-subsidy Regulation, in accordance with Article 14(1) of the basic anti-dumping Regulation. In view of the expiry of the countervailing duty, the anti-dumping duty rates now have to be adjusted.
2.   ANTI-DUMPING DUTY RATES AFTER EXPIRY OF THE COUNTERVAILING DUTY ON THE SAME IMPORTS
(6) As indicated in recital 5, the expiry of the countervailing duty on PET film originating in India, on 9 March 2011, requires an adjustment of the anti-dumping duty rates. Indeed, the anti-dumping duty established by Regulation (EC) No 1292/2007 consists of the dumping margin minus the subsidisation margin relating to export subsidies. As the countervailing duty has now expired, the level of the anti-dumping duty rates has to be redetermined.
(7) Pursuant to Article 9(4) of the basic anti-dumping Regulation, the amount of the anti-dumping duty shall not exceed the margin of dumping established but should be less than that margin if such lesser duty would be adequate to remove the injury to the Union industry. Consequently, the duty level should be established at the lowest level of the dumping margin and injury elimination level.
(8) In this respect, it is recalled that, in the original anti-dumping investigation, the injury elimination level was in all cases above the dumping margins, as laid out in recital 195 of Regulation (EC) No 367/2001 and confirmed by recital 74 of Regulation (EC) No 1676/2001. Therefore, the anti-dumping duty should be set at the level of the dumping margins established in respect of the various Indian manufacturers, which are as follows:
Company Dumping margin and AD duty rate Reference
Ester Industries Limited 29,3 % Regulation (EC) No 366/2006
Garware Polyester Limited 0 % Implementing Regulation (EU) No 38/2011 (12)
Jindal Poly Films Limited 0 % Regulation (EC) No 1676/2001 (15)
Polyplex Corporation Limited 3,7 % Regulation (EC) No 366/2006
SRF Limited 15,5 % Regulation (EC) No 1424/2006 (13)
Uflex Limited 3,2 % Regulation (EC) No 366/2006 (16)
Vacmet India Limited 0 % Implementing Regulation (EU) No 205/2011 (14)
All other companies (except MTZ Polyfilms) 29,3 % Regulation (EC) No 366/2006
(9) All known Indian exporting producers of PET film, the Indian authorities and the Union industry of PET film have received disclosure of the above course of action.
(10) Following this disclosure, several Indian companies argued that, as no expiry review was requested for the countervailing measures, the Union industry was apparently in good shape and, therefore, the anti-dumping measures should be terminated as well. In addition, one exporting producer argued that the average dumping margin of the sample should be recalculated since, following an interim review, Garware Polyester Limited, which was one of the companies in the sample, had recently been made subject to a revised individual dumping margin. It should be noted that both claims go beyond the limited scope of the current Regulation which only aims at adjusting the level of the existing anti-dumping duty rates following the expiry of the concurrent countervailing measures on the same imports. 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, these claims have to be rejected.
(11) One Indian exporting producer argued that, as the countervailing duties had expired, the Commission should now grant a price adjustment to the Indian exporters using the DEPB scheme, which it had refused during the original investigation and interim review investigation. Without prejudice to whether such claim could be examined in the context of the current amending Regulation, it should be noted that, as summarised in recital 50 of Regulation (EC) No 367/2001 and recital 47 of the amending anti-dumping Regulation, the price adjustment claim for DEPB had not been accepted as the producers concerned had not demonstrated that price comparability between domestic and EU sales prices had been affected by the DEPB benefits. That situation has not changed with the expiry of the countervailing duty and this claim, therefore, has to be rejected.
(12) No further substantive comments were received. Consequently, the duty rates should be revised to the levels of the dumping margin, as indicated in the table under recital 8 above,
Article 2(2) of Regulation (EC) No 1292/2007 is replaced by the following:
‘2.   The rate of the definitive anti-dumping duty applicable to the net, free-at-Union-frontier price, before duty, of the products manufactured by the companies listed below shall be as follows:
Company Definitive Duty TARIC Additional Code
Ester Industries Limited
75-76, Amrit Nagar,
Behind South Extension Part-1,
New Delhi — 110 003,
India
Garware Polyester Limited
Garware House,
50-A, Swami Nityanand Marg,
Vile Parle (East),
Mumbai 400 057,
India
Jindal Poly Films Limited
56 Hanuman Road,
New Delhi 110 001,
India
Polyplex Corporation Limited
B-37, Sector-1,
Noida 201 301,
Dist. Gautam Budh Nagar,
Uttar Pradesh,
India
SRF Limited
Block C, Sector 45,
Greenwood City,
Gurgaon 122 003, Haryana,
India
Uflex Limited
A-1, Sector 60,
Noida 201 301, (U.P.),
India
Vacmet India Limited
Anant Plaza, IInd Floor, 4/117-2A,
Civil Lines, Church Road,
Agra 282 002, Uttar Pradesh,
India
All other companies (except MTZ Polyfilms Limited – TARIC additional code A031 (17)) 29,3 A999
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.