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18.8.2011 Official
Journal
of
the
European
Union L
211/1
II
(Non-legislative acts)
REGULATIONS
COUNCIL IMPLEMENTING REGULATION (EU) No 824/2011
of 12 August 2011
terminating the partial reopening of the anti-dumping interim review investigation concerning
imports of polyethylene terephthalate (PET) film originating in India
THE COUNCIL OF THE EUROPEAN UNION,
expiry review the definitive anti-dumping duty on
imports of PET film originating in India was confirmed.
Having regard to the Treaty on the Functioning of the European
Union,
(3) MTZ
Polyfilms
Ltd
(MTZ
Polyfilms),
an
Indian
exporting
producer which cooperated with the above investigations,
obtained an individual duty rate by the original Regu
Having regard to Council Regulation (EC) No 1225/2009 of
lation. This duty rate was revised by the amending Regu
30 November 2009 on protection against dumped imports
lation.
from countries not members of the European Community ( 1 )
(the basic Regulation) and in particular Article 9 and
Article 11(3) and (6) thereof,
(4) On
19
May
2006,
MTZ
Polyfilms
lodged
an
appli
Having regard to the proposal submitted by the European
cation ( 5 ) at the General Court (‘the Court of First
Commission (the Commission) after having consulted the
Instance’ before the entry into force of the Lisbon
Advisory Committee,
Treaty) seeking the annulment of the amending Regu
lation in so far as it applies to MTZ Polyfilms.
Whereas:
(5) By
its
judgment
of
17
November
2009
in
Case
T-143/06 ( 6 ), the General Court annulled the amending
1. PROCEDURE
Regulation to the extent that it imposed an anti-dumping
duty on MTZ Polyfilms (the judgment). The General
1.1. Existing measures
Court found that the amending Regulation was adopted
on an incorrect legal basis. It considered, in particular,
(1) By
Regulation
(EC)
No
1676/2001
( 2 ) (the original Regu
lation) the Council imposed a definitive anti-dumping
that Article 11(3) of the basic Regulation could not serve
duty on imports of polyethylene terephthalate (PET)
as a legal basis allowing the institutions, when deter
film originating, inter alia, in India. On 8 March 2006,
mining the export price, not to apply the methodology
by Council Regulation (EC) No 366/2006
(
prescribed by Article 2(8) and (9) of the basic Regulation.

3 ) (the
amending Regulation) and following a partial interim
review investigation, the anti-dumping duty on imports
of PET film originating in India was amended.
(6) On
13
May
2011,
by
Implementing
Regulation
(EU)
No
469/2011 ( 7 ) the definitive anti-dumping duty on
(2) On
6
November
2007,
by
Council
Regulation
(EC)
No
imports of PET film originating in India was amended
1292/2007 ( 4 ) (the review Regulation) and following an
in view of the expiry of the up till then parallel counter
vailing duty on 9 March 2011.
( 1 ) OJ L 343, 22.12.2009, p. 51.
( 2 ) OJ L 227, 23.8.2001, p. 1.
( 5 ) OJ C 178, 29.7.2006, p. 34.
( 3 ) OJ L 68, 8.3.2006, p. 6.
( 6 ) Case T-143/06 MTZ Polyfilms v Council [2009] ECR II-4133.
( 4 ) OJ L 288, 6.11.2007, p. 1.
( 7 ) OJ L 129, 17.5.2011, p. 1.

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L 211/2
EN
Official Journal of the European Union
18.8.2011
1.2. Partial reopening
possibility to reopen an investigation. The same company
also submitted that the Commission’s reference in the
(7) On
20
May
2010
a
notice
( 1 ) was published in the
notice referred to in recital 7 to the judgment in the
Official Journal of the European Union. In the notice
IPS case (IPS judgment) ( 2 ) was erroneous as that
parties were informed that, in view of the judgment of
judgment concerned an anti-dumping proceeding which
the General Court mentioned in recital 5, imports into
had been initiated in a different legal framework as under
the European Union of PET film manufactured by MTZ
the basic Regulation in force at that time, an anti-
Polyfilms were no longer subject to the anti-dumping
dumping proceeding consisted of several stages which
measures imposed by the amending Regulation and the
included the initial investigation and all subsequent
review Regulation, and that definitive anti-dumping
review investigations. The IPS judgment therefore dealt
duties paid pursuant to these regulations for the
with the possibility of opening a new investigation
product concerned manufactured by MTZ Polyfilms
within the framework of an ongoing proceeding. The
should be repaid or remitted.
distinction between a proceeding and an investigation
had been written out of the basic Regulation in 1995
and, in the present case, the Commission had not
initiated a new investigation in the framework of a
(8) The
notice
also
partially
reopened
the
relevant
anti-
dumping interim review investigation concerning
proceeding but reopened an investigation which,
imports of PET film originating, inter alia, in India in
according to MTZ Polyfilms, had already been
order to implement the above judgment of the General
concluded by the imposition of definitive measures.
Court as far as MTZ Polyfilms is concerned.
MTZ Polyfilms submitted that the IPS case could not
(9) Moreover,
by
the
same
notice,
MTZ
Polyfilms
was
serve as a precedent because it was based on Council
invited, should it consider that aspects of the findings
Regulation (EЕC) No 2423/88 of 11 July 1988 on
which led to the adoption of the amending Regulation
protection against dumped or subsidized imports from
other than the one mentioned in recital 5 were no longer
countries not members of the European Economic
valid, to present a duly substantiated request for review
Community ( 3 ) (the old basic Regulation), under which
in accordance with the provisions of Article 11(3) of the
mandatory deadlines, in particular the maximum time
basic Regulation.
for concluding a review investigation of 15 months
from the date of initiation, did not yet apply. It argued
that in this case, the 15 months deadline had lapsed soon
after the reopening on 20 May 2010, since the amended
(10) The
Commission
officially
advised
MTZ
Polyfilms,
the
measures were imposed more than 14 months after the
representatives of the exporting country, the other
initiation of the partial interim review investigation.
Indian exporting producers which cooperated in the
Finally, according to MTZ Polyfilms, the judgment
investigation that led to the adoption of the amending
required no implementing measures, since the judgment
Regulation, and the Union industry of the partial
is clear in all material aspects, simple and without any
reopening of the investigation. Interested parties were
specific reservation and/or qualification annulling the
given the opportunity to make their views known in
amending Regulation as far as it concerned imports
writing and to be heard within the time limit set out
into the Union of PET film manufactured by MTZ
in the notice.
Polyfilms.
(11) Representations were received from two exporting
producers in India (one being the party directly
(14) Another
Indian
exporting
producer
of
PET
film,
which
concerned, i.e. MTZ Polyfilms) and the Union industry.
had cooperated with the interim review, argued that, as
in calculating its dumping margin the institutions had
applied the same approach as the one which had been
condemned by the General Court in its judgment, the
2. IMPLEMENTATION OF THE JUDGMENT
institutions should now also revise the methodology
for calculating dumping of this company, resulting in
2.1. Preliminary remark
the absence of a dumping margin.
(12) As a preliminary remark it is important to note that MTZ
Polyfilms did not reply to the invitation referred to in
recital 9.
(15) The
Union
industry
claimed
that,
since
the
General
Court
had annulled the amending Regulation in so far as it
imposed an anti-dumping duty on MTZ Polyfilms, the
2.2. Comments of interested parties
individual duty rate calculated and imposed in 2001
should be reimposed as, in the interim review, MTZ
(13) MTZ
Polyfilms
argued
that
a
partial
reopening
of
a
Polyfilms was still found to be dumping by
review investigation is illegal because there is no
specific provision in the basic Regulation allowing for a
( 2 ) Case T-2/95 Industrie des Poudres Sphériques v Council [1998] ECR II-
3939.
( 1 ) OJ C 131, 20.5.2010, p. 3.
( 3 ) OJ L 209, 2.8.1988, p. 1.

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EN
18.8.2011 Official
Journal
of
the
European
Union L
211/3
a considerable margin. In this respect, it also pointed to a
Polyfilms. As a consequence, the judgment is no basis
long-standing pattern of circumvention and origin fraud
for revisiting the approach and/or calculations with
allegedly practised by the Indian exporters. Moreover, it
regard to other exporting producers. Therefore, this
alleged that there was a huge existing overcapacity in
claim has to be rejected.
India and that in several other major world markets
trade defence measures were in place against Indian
PET film, which would inevitably lead to greater import
(20) Concerning
the
Union
industry’s
claim
mentioned
in
volumes on the Union market of PET film manufactured
recital 15, the reasoning in recital 17 is equally valid,
by MTZ Polyfilms.
i.e. case-law has established that, if the Court of Justice
judges that an illegality has taken place, the Commission
(16) The
Union
industry
also
called
on
the
Commission
to
can resume an investigation procedure at the point just
ensure the registration of imports as it considered that
before the illegality occurred. Therefore, there is no
the two conditions for such registration laid down in
immediate need to resort to previously established data,
Article 10(4) of the basic Regulation had been met.
as argued by the Union industry.
2.3. Analysis of comments
(21) Concerning
the
Union
industry’s
request
for
registration
(17) In respect of the alleged illegality of the reopening, it is
of imports, based on the information in the request and
recalled that in its IPS judgment the General Court
according to the statistical data available to the
recognised that in cases where a proceeding consists of
Commission it was concluded that the condition
several administrative steps, the annulment of one of
mentioned in Article 10(4)(b) of the basic Regulation,
those steps does not annul the complete proceeding.
i.e. a substantial rise in the imports concerned, was not
The anti-dumping proceeding is an example of such a
met (see also recital 24). The request for registration was
multi-step proceeding. Consequently, the annulment of
therefore rejected.
the amending Regulation in relation to one party does
not imply the annulment of the entire procedure prior to
the adoption of that Regulation. Moreover, according to
2.4. Investigation
Article 266 of the Treaty on the Functioning of the
European Union (TFEU), the Union institutions are
(22) As
mentioned
in
recital
5,
the
General
Court
annulled
the
required to comply with the judgment. This also
amending Regulation as far as MTZ Polyfilms is
implies the possibility of remedying the aspects of the
concerned as it considered that Article 11(3) of the
amending Regulation which led to its annulment, while
basic Regulation cannot serve as a legal basis allowing
leaving unchanged the uncontested parts which are not
the institutions, when determining the export price, to
affected by the Court of Justice judgment — as was held
depart from the methodology prescribed by Article 2(8)
in case C-458/98 P ( 1 ) (the IPS appeal case). In the light
and (9) of the basic Regulation. It is also noted that all
of the above, the claim that there is no legal basis for the
findings in the review Regulation, other than the ones
partial reopening of a review investigation was found to
which the General Court found to be erroneous, remain
be unwarranted.
formally valid. This applies, in particular, to the finding
that there were significant changes in circumstances
(18) The
claim
that
the
introduction
of
deadlines
to
conclude
justifying an amendment to the anti-dumping duty
anti-dumping investigations prevents the Commission
applicable to MTZ Polyfilms. Therefore, this aspect of
from following the approach underlying the IPS case
the review was not reinvestigated in the context of the
was also found to be unwarranted. It is considered that
current procedure. During the review investigation period
this deadline is not relevant for the implementation of a
(RIP), MTZ Polyfilms exported the product concerned to
Court of Justice judgment. Indeed, such deadline only
the Union under a price undertaking and these sales
governs the completion of the initial review investigation
respected the terms of the undertaking, i.e. were at
from the date of initiation to the date of definitive action,
prices which were above the agreed minimum prices.
and does not concern any subsequent action that might
For the reasons explained in the review Regulation, it is
have to be taken for instance as a result of judicial
confirmed that the export prices to the Union during the
review. It should be noted that the General Court has
RIP cannot be used to calculate the dumping margin of
not handed down any judgments which apply this
MTZ Polyfilms.
reasoning, as that would make it impossible to finalise
any anti-dumping investigation which was annulled by
the General Court in order to take account of the General
(23) In view of the above considerations, the current investi
Court’s findings (as Article 266 TFEU requires). Indeed,
gation was limited to an analysis of the facts available to
the General Court’s judgment will always be handed
the institutions regarding the export activities of MTZ
down at a point in time when the deadline for the
Polyfilms. In this respect, as the Court of Justice has
investigation has expired.
held in the IPS judgment, the institutions, when
resuming an anti-dumping investigation following a
(19) Concerning the claim of the other Indian exporting
judgment annulling a regulation imposing anti-dumping
producer of PET film, it is recalled that the General
duties, are entitled to take account of recent information,
Court annulled the amending Regulation only to the
including information dating from after the original
extent that it imposes an anti-dumping duty on MTZ
investigation period. It also follows from the IPS
judgment that this possibility to take recent information
( 1 ) Case C-458/98 P Industrie des Poudres Sphériques v Council [2000] ECR
into account applies also to reviews, which is the case at
I-8147.
hand here.

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L 211/4
EN
Official Journal of the European Union
18.8.2011
(24) It is noted that after the coming into effect of the
film originating in India. Comments were received from
amending Regulation, and according to the available stat
the Union industry which reiterated, as already presented
istical information, import volumes of PET film manu
in recital 15, that the individual duty rate calculated and
factured by MTZ Polyfilms decreased strongly and even
imposed in 2001 should be reimposed on MTZ
ceased as from 2008. Furthermore, the Council notes
Polyfilms, and expressed the view that the decrease in
that the judgment annulling the review Regulation as
exports to the Union by MTZ Polyfilms does not mean
far as MTZ Polyfilms is concerned was delivered on
that in the future the company is not likely to engage in
17 November 2009. The notice referred to in recital 7,
injurious dumping. The Union industry also pointed out
which indicated that following the General Court
that the overall volume of imports of PET film from
judgment the imports of PET film manufactured by
India had recently increased. The comments in recital
MTZ Polyfilms were no longer subject to the anti-
15 have already been addressed in recital 20. As
dumping measures, was published on 20 May 2010.
regards the likely future behaviour of MTZ Polyfilms, it
This means that for more than one year those imports
is considered that the absence of any imports from the
have only been subject to countervailing and customs
company for a significant period of time, during which
duties, and not to an anti-dumping duty. In that
they were subject to low duty rates, as explained in
context, the data gathered on the basis of Article 14(6)
recital 24, sufficiently demonstrates that the company
of the basic Regulation indicate that during recent years
is not likely to engage in injurious dumping. Despite
no such imports have taken place.
the fact that recently imports from India have increased,
the imports from MTZ Polyfilms have remained at zero,
2.5. Conclusion
(25) In the light of all the abovementioned circumstances, in
HAS ADOPTED THIS REGULATION:
particular the limited scope of the investigation at hand,
which, in the light of the General Court judgment, did
Article 1
not re-examine the findings on the existence of changed
circumstances and the unavailability of a reliable export
1. The partial reopening of the anti-dumping interim review
price, the Council concludes that the recalculation of a
investigation concerning imports of polyethylene terephthalate
dumping margin for MTZ Polyfilms and the reimposition
(PET) film originating in India and manufactured by MTZ
of an anti-dumping duty on exports of PET film manu
Polyfilms is hereby terminated.
factured by MTZ Polyfilms would be inappropriate. As a
consequence, it is concluded that the review investigation
which was opened with a view to implement the General
2. Imports
of
PET
film
originating
in
India
and
manufactured
Court’s findings should be terminated without reim
by MTZ Polyfilms shall not be subject to an anti-dumping duty
posing a duty.
pursuant to this proceeding.
(26) All
parties
concerned
were
informed
of
the
essential
facts
Article 2
and considerations on the basis of which it was intended
to terminate the partial reopening of the anti-dumping
This Regulation shall enter into force on the day following its
interim review investigation concerning imports of PET
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, 12 August 2011.
For the Council
The President
M. DOWGIELEWICZ

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