HTML PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN"L 232/14
EN
Official Journal of the European Union
9.9.2011
REGULATIONS
COUNCIL IMPLEMENTING REGULATION (EU) No 905/2011
of 1 September 2011
terminating the partial interim review concerning the anti-dumping measures on imports of certain
polyethylene terephthalate (PET) originating in India
THE COUNCIL OF THE EUROPEAN UNION,
PET originating, inter alia, in India. Following an expiry
review, the Council, by Regulation (EC) No 193/2007 ( 6 )
imposed a definitive countervailing duty for a further
period of five years. The countervailing measures were
Having regard to the Treaty on the Functioning of the European
amended by Regulation (EC) No 1286/2008 following
Union,
the last review investigation. The countervailing
measures consist of a specific duty. The rate of the
duty ranges between EUR 0 and EUR 106,5 per tonne
for individually named Indian producers with a residual
Having regard to Council Regulation (EC) No 1225/2009 of
duty rate of EUR 69,4 per tonne imposed on imports
30 November 2009 on protection against dumped imports
from other producers (‘the current countervailing
from countries not members of the European Community ( 1 )
measures’).
(the basic Regulation) and in particular Article 11(3) thereof,
Having regard to the proposal submitted by the European
Commission after consulting the Advisory Committee,
(3) By
Decision
2000/745/EC
( 7 ) the Commission accepted
undertakings offered by several exporting producers
setting a minimum import price (MIP) (‘the undertaking’).
Whereas:
1.2. Request for a review
1. PROCEDURE
(4) A
request
for
a
partial
interim
review
pursuant
to
1.1. Measures in force
Article 11(3) of the basic Regulation was lodged by
Reliance Industries Limited, an Indian exporting
(1) By
Regulation
(EC)
No
2604/2000
( 2 ), the Council
producer of PET (‘the applicant’). The request was
imposed a definitive anti-dumping duty on imports of
limited in scope to dumping and to the applicant. The
polyethylene terephthalate (PET) originating, inter alia,
applicant at the same time also requested the review of
in India (‘the original investigation’). Following an
the current countervailing measures. The residual anti-
expiry review, the Council, by Regulation (EC)
dumping and countervailing duties are applicable to
No 192/2007 ( 3 ) imposed a definitive anti-dumping
imports of products produced by the applicant and
duty for a further period of five years. The anti-
sales of the applicant to the Union are governed by the
dumping measures were amended by Council Regulation
undertaking.
(EC) No 1286/2008 ( 4 ) following a partial interim review
(‘the last review investigation’). The measures were set at
the injury elimination level and consist of specific anti-
dumping duties. The rate of the duty ranges between
EUR 87,5 and EUR 200,9 per tonne for individually
named Indian producers with a residual duty rate of
(5) The
applicant
provided
prima
facie
evidence
that
the
continued application of the current duty at its current
EUR 153,6 per tonne imposed on imports from other
level was no longer necessary to offset dumping. In
producers (‘the current duties’).
particular, the applicant claimed that there had been
significant changes in the production costs of the
company and that these changes led to a substantially
lower dumping margin since the imposition of the
(2) By
Regulation
(EC)
No
2603/2000
( 5 ), the Council
imposed a definitive countervailing duty on imports of
current duties. A comparison made by the applicant of
its domestic prices and its export prices to the Union
suggested that the dumping margin was substantially
( 1 ) OJ L 343, 22.12.2009, p. 51.
lower than the level of current duties.
( 2 ) OJ L 301, 30.11.2000, p. 21.
( 3 ) OJ L 59, 27.2.2007, p. 1.
( 4 ) OJ L 340, 19.12.2008, p. 1.
( 6 ) OJ L 59, 27.2.2007, p. 34.
( 5 ) OJ L 301, 30.11.2000, p. 1.
( 7 ) OJ L 301, 30.11.2000, p. 88.

---

EN
9.9.2011 Official
Journal
of
the
European
Union L
232/15
1.3. Initiation of a partial interim review
(12) The
Commission
sought
and
verified
all
information
deemed necessary for the determination of dumping.
(6) Having
determined,
after
consulting
the
Advisory
The Commission carried out a verification visit at the
Committee, that the request contained sufficient prima
premises of the applicant in Mumbai, India.
facie evidence to justify the initiation of the partial
interim review (‘this review’), the Commission
announced, by a notice of initiation ( 1 ) published in the
Official Journal of the European Union on 10 June 2010,
1.6. Review investigation period
the initiation of a partial interim review pursuant to
Article 11(3) of the basic Regulation limited to the exam
(13) The
investigation
of
dumping
covered
the
period
from
ination of dumping as far as the applicant is concerned.
1 April 2009 to 31 March 2010 (‘the review investi
gation period’ or ‘RIP’).
1.4. Product concerned and like product
2. RESULTS OF THE INVESTIGATION
(7) The
product
under
review
is
polyethylene
terephthalate
2.1. Lasting nature of the alleged change of circum
(PET) having a viscosity of 78 ml/g or higher, according
stances during the RIP
to the ISO Standard 1628-5, currently falling within
CN code 3907 60 20 and originating in India (‘the
(14) In
accordance
with
Article
11(3)
of
the
basic
Regulation,
product concerned’).
it was examined whether the circumstances with regard
to dumping have changed significantly and whether such
change was of a lasting nature.
(8) The
investigation
revealed
that
the
product
concerned
produced in India and sold to the Union is identical in
(15) The
applicant
claimed
that
the
changes
in
its
normal
terms of physical and chemical characteristics and uses to
value and export prices since the original investigation
the product produced and sold on the domestic market
establishing its dumping margin were the result of a
in India. It is therefore concluded that products sold on
significant change in production costs. The change in
the domestic and export markets are like products within
its cost of production was claimed to be linked to the
the meaning of Article 1(4) of the basic Regulation. Since
reduction of customs duties applicable to imports in
this review was limited to the determination of dumping
India of the basic raw material used in its production
as far as the applicant is concerned, no conclusions were
process. Furthermore, the applicant also claimed that
reached with regard to the product produced and sold by
the reduction of customs duties led to a reduction in
the Union industry on the Union market.
export incentives which resulted in changed domestic
sales prices used to determine the normal value.
1.5. Parties concerned
(16) However,
it
was
found
that,
in
spite
of
the
reductions
of
custom duties and export incentives, the domestic sales
(9) The
Commission
officially
informed
the
applicant,
the
prices of the company used to determine the normal
representatives of the exporting country and the
value in the RIP were higher than the prices used in
association of Union producers about the initiation of
the original investigation establishing the applicant’s
the review. Interested parties were given the opportunity
dumping margin. The higher domestic sales prices
to make their views known in writing and to request a
resulted, inter alia, from the increased cost of certain
hearing within the time limit set in the notice of
raw materials and other inputs.
initiation.
(17) As
far
as
export
prices
to
the
Union
in
the
RIP
were
concerned, they were determined pursuant to
(10) All
interested
parties
who
so
requested
and
showed
that
Article 2(8) and (9) of the basic Regulation. However,
there were particular reasons for being heard were
it had to be analysed in particular whether the
granted a hearing.
existence of a price undertaking under which the
applicant was obliged to sell its product to the Union
market at a price above a MIP set for each month during
the RIP has influenced the export prices of the applicant.
It was concluded, for the reasons set out below, that the
(11) In
order
to
obtain
the
information
deemed
necessary
for
exports to the Union were indeed influenced by the price
its investigation, the Commission sent a questionnaire to
undertaking. In this regard, given that the applicant had
the applicant and received a reply within the deadline set
to comply with the undertaking MIP obligations, it chose
for that purpose.
not to export to the Union during specific months of the
RIP when its export prices to other export markets were
( 1 ) OJ C 151, 10.6.2010, p. 15.
below the MIP.

---

L 232/16
EN
Official Journal of the European Union
9.9.2011
(18) It
was
observed
that
the
applicant
sold
its
product
to
the
the applicant did not sell products to the Union during a
Union only during six months of the RIP. On the other
certain period because of the need to comply with its
hand, it sold products throughout the period to other
undertaking. In consequence, the export prices charged
export markets where it did not have to comply with
on the Union market in the RIP are not reliable.
the obligation set in the price undertaking. It was noted
that export prices to third countries in the months
during which the applicant did not export to the
Union were significantly lower than the established
(22) A
comparison
was
also
made
between
the
sales
prices
of
MIP. Therefore, in the light of the above, it can be
the applicant to the Union market and the prices
reasonably assumed that the applicant’s sole reason for
achieved on other export markets for which no price
not selling products to the Union in the remaining
undertaking existed. It was observed that export prices
months was that it had to comply with its undertaking
to those markets without price obligations were
and could not sell below the MIP set.
consistently lower throughout the RIP.
(19) The applicant contested the finding that the reason for
(23) The
applicant
questioned
the
conclusions
drawn
from
the
not selling products to the Union market was linked to
comparison of prices to the Union and other exports
the existing undertaking. The applicant argued that in
markets, claiming that when analysed on a country-by-
regard to its sales in the RIP to other large export
country basis, there are several other export markets
markets there were months during which there were
where prices charged are above the prices charged on
no sales and thus irregular sales were not a specific
the Union market. However, in this respect, the
feature of the Union market. It also claimed that a
comparison of average prices is more relevant than the
monthly comparison of the import prices of the
individual differences on a country-by-country
product concerned to the Union from all other
comparison which will be linked to the size as well as
exporting countries and/or the import prices of the
to distinctive competitive factors at play on those indi
product concerned originating in India with the
vidual markets.
monthly MIP of the company would show that the
applicant would have been able to sell products to the
Union in all months of the RIP without breaching its
undertaking.
(24) Consequently, the export prices on third markets better
reflect the company’s normal pricing behaviour. The
price differential between export prices to the Union
and export prices to the rest of the world indicates
(20) The
applicant’s
arguments
cannot
be
accepted
because,
that there are strong economic arguments to induce
on the one hand, the company focussed its activity on
the applicant to sell at lower prices to the Union if
selected individual markets which are driven by their
there were no MIP. Under these circumstances it is
own market specificities and do not give indications as
considered that any newly calculated dumping margin
to why the company did not sell to the Union. On the
based on the export prices to the Union in the RIP
other hand, the comparisons made by the applicant were
would thus be set on the basis of prices that have not
based on overall statistical data whereas the findings of
changed significantly and in a lasting manner. The same
this review are based on company-specific data which is
conclusion applies to the applicant’s claim, as mentioned
a more relevant and reliable source from which to draw
in recital 5, that a comparison of its domestic prices and
conclusions. The arguments presented by the applicant
its export prices to the Union would show a dumping
were also not fully valid, e.g. in some months, overall
margin lower than the level of current duties.
import prices to the Union were indeed higher than the
MIP, while in other periods overall import prices were
lower —, no general conclusions could thus be drawn
from them. However, it is undisputed that the applicant
(25) In light of the above, the condition set in Article 11(3) of
had sales to the Union only in the months when the
the basic Regulation that circumstances with regard to
overall import prices to the Union were at the level or
dumping changed significantly is not met. Therefore, the
higher than the MIP.
continued imposition of the measures at their current
level is necessary to offset dumping.
(21) The
applicant’s
argument
that
it
would
have
been
able,
should it have wanted, to sell products on the Union
(26) After
disclosure,
the
applicant
insisted
that
its
prices
market during the six months period it was selling
charged on the Union market are fully reliable. Since
products on other export markets at a price lower than
these export prices increased significantly between the
its MIP is rejected as speculative and non-substantiated.
original investigation period and the RIP, the
The applicant did not put forward any other argument as
company’s export behaviour should be considered also
to the reasons why it did not sell products to the Union
to have changed significantly and lastingly during this
during those six months while at the same time it was
period. Therefore the company’s dumping margin
selling the same products on other export markets at a
would allegedly also have decreased significantly and in
price lower than its MIP. Therefore, it was concluded that
a lasting manner.

---

EN
9.9.2011 Official
Journal
of
the
European
Union L
232/17
(27) It
furthermore
argued
that
the
lasting
change
in
circum
charged on the Union market in the RIP are not reliable
stances is not necessarily the determining element for the
and consequently any newly calculated dumping margin
assessment to be made after initiating a review but it is
based on these prices would thus be set on the basis of
more relevant whether the continued imposition of the
prices that have not changed significantly and in a lasting
duty is necessary to offset dumping. It referred to the
manner, as stated in recital 24.
fundamental principle set out in Article 11(1) and of the
basic Regulation and Article 11.1 of the WTO Anti-
dumping Agreement that anti-dumping measures shall
remain in force only as long as, and to the extent that,
(30) Despite
the
conclusion
that
export
prices
to
the
Union
they are necessary to counteract dumping which is
have not changed significantly and in a lasting manner,
causing injury. In this respect, the applicant claimed
consideration was given to the applicant’s arguments and
that the analysis of the necessity should be a prospective
to whether the measures at their current level are still
assessment that would require at the very least the likely
necessary to counteract dumping. In this regard, the
or probable recurrence of dumping at the level previously
applicant claimed that sinceits dumping margin would
established.
be significantly below that found in the original investi
gation and its export behaviour in other markets would
confirm that the change in the dumping margin reflects
the trend that can reasonably be expected in the future,
(28) Article
11(1)
of
the
basic
Regulation
provides
that
‘An
the current level of measures is manifestly excessive.
anti-dumping measure shall remain in force only as long
However, these arguments were found not to be
as, and to the extent that, it is necessary to counteract
supported by the facts. First, concerning the applicant’s
the dumping which is causing injury’. This principle is
export behaviour on other markets, it was found that,
carried through to treatment of interim reviews, such as
contrary to the claim in the applicant’s request, the prices
in the case at hand, where Article 11(3) of the basic
to these markets were, on average, almost 10 % lower
Regulation provides, inter alia, that ‘[…] An interim
than those to the Union. These third country export
review shall be initiated where the request contains
markets comprise a number of countries of different
sufficient evidence that the continued imposition of the
market size, with some of them unlikely to have
measure is no longer necessary to offset dumping and/or
domestic production of PET. These markets are hence
that the injury would be unlikely to continue or recur if
defined by their own individual characteristics of
the measure were removed or varied […].’ The afore
competition leading to prices and trends different from
mentioned provision sets the benchmark to be met
those on the Union market. Second, in light of these
where an interested party considers that the level of
findings, even if it were found that the current level of
measures is too low or too high and consequently
measures should be changed on the grounds that it was
requests a review of those measures. Once such a
no longer necessary to counteract dumping, it is not
review is initiated, Article 11(3) of the basic Regulation
possible to determine with a reasonable degree of
goes on to explicitly provide that ‘in carrying out inves
accuracy what would be the appropriate level in the
tigations pursuant to this paragraph, the Commission
absence of reliable export prices which result from and
may, inter alia, consider whether the circumstances
reflect the normal conditions on the Union market.
with regard to dumping […] have changed significantly
[…]. In these respects, account shall be taken in the final
determination of all relevant and duly documented
evidence’. Therefore Article 11(3) provides for an addi
(31) Finally
the
applicant
considered
that
an
adjustment
could
tional assessment criterion (i.e. a significant change in
be made in accordance with Article 2(10) of the basic
circumstances) in case of interim reviews that should
Regulation and in particular with its point (k) for
be looked at during the investigation in addition to the
‘differences in other factors […] if it is demonstrated
initiation requirement (i.e. assessing whether the
that they affect price comparability as required under
measures at the current level still necessary) as claimed
this paragraph’.
by the applicant.
(32) Given
the
conclusion
reached
above
that
export
prices
(29) It should also be noted that it is standard practice in
did not change in a significant and lasting manner, it is
interim review investigations to examine the lasting
not possible to establish a dumping margin. For this
nature of the changed circumstances found during an
reason, the claim for an adjustment is irrelevant and
investigation. Indeed, in this respect, the case law of
thereby rejected.
the General Court of the European Union ( 1 ) confirms
that ‘when assessing the need to continue existing
measures the institutions have a wide discretion, which
includes the option of carrying out a prospective
3. TERMINATION OF THE INVESTIGATION
assessment of the pricing policy of the exporters
concerned’. The evidence at hand shows that the export
(33) In
view
of
the
findings
that
circumstances
with
regard
to
prices charged by the applicant on the Union market do
dumping did not change significantly and lastingly, it is
not reflect the applicant’s actual pricing policy and
considered that this review should be terminated without
therefore, as concluded in recital 21, the export prices
amending the level of the duty for the applicant.
Therefore the anti-dumping measures imposed by Regu
( 1 ) Case T-143/06 MTZ Polyfilms v Council of the European Union [2009]
lation (EC) No 1286/2008 on imports of PET produced
ECR II-4133, at paragraph 48.
by the applicant should remain unchanged.

---

L 232/18
EN
Official Journal of the European Union
9.9.2011
4. DISCLOSURE
HAS ADOPTED THIS REGULATION:
(34) The applicant as well as the other parties concerned were
informed of the essential facts and considerations on the
Article 1
basis of which it was intended to propose to terminate
this review. Comments received were not such as to
The partial interim review of the anti-dumping measures
change the above conclusion.
applicable to imports of polyethylene terephthalate currently
falling within CN code 3907 60 20 and originating, inter alia,
in India, is hereby terminated without amending the measures
in force.
5. FINAL PROVISION
Article 2
(35) This
review
should
therefore
be
terminated
without
any
This Regulation shall enter into force on the day following its
amendment to Regulation (EC) No 192/2007,
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, 1 September 2011.
For the Council
The President
M. DOWGIELEWICZ

---