Ref. Ares(2015)3925008-23/09/2015 EUROPEAN COMMISSION Ares(2015)3925008 COMMISSION IMPLEMENTING DECISION of 18 September 2015 concerning an application for a refund of anti-dumping duties paid on imports of certain plastic sacks and bags originating in the People s Republic of China (only the French and Dutch texts are authentic) Pursuant to Article 4.1(b) of Regulation 1049/2001 the document has been expunged of personal data. The applicable legislation in this field is Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data. When access is requested to documents concerning personal data, Regulation (EC) No 45/2001 becomes fully applicable.
COMMISSION IMPLEMENTING DECISION of 18.9.2015 concerning an application for a refund of anti-dumping duties paid on imports of certain plastic sacks and bags originating in the People s Republic of China (only the French and Dutch texts are authentic) THE EUROPEAN COMMISSION, 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, and in particular Article 11(8) thereof, After informing Member States, Whereas: Measures A. PROCEDURE (1) Council Regulation (EC) No 1425/2006 of 25 September 2006 ('the original investigation ') 2 imposed a definitive anti-dumping duty on imports of certain plastic sacks and bags originating in the People's Republic of China ( the PRC ). The rates of the definitive anti-dumping duty for Chinese exporting producers were between 4,8% and 28,8%. (2) Following an interim and an expiry review investigation, the measures were repealed in July 2012 by Council Regulation (EU) No 627/2012 3. Refund application (3) [omissis] ('the applicant'), requested a refund of anti-dumping duties via the authorities of Belgium under Article 11(8) 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 ) ('the application'). The application lodged between 22 December 2010 and 24 October 2012 related to anti-dumping duties paid on imports of certain plastic sacks and bags originating in the PRC, subject to the residual duty rate of 28,8%. (4) The total amount of anti-dumping duties for which a refund is requested is [omissis]. The anti-dumping duties were levied by the customs authorities between 12 July 2010 and 9 July 2012. The corresponding transactions were invoiced by [omissis] ('the 1 2 3 OJ L 343, 22.12.2009, p. 51. Council Regulation (EC) No 1425/2006 of 25 September 2006 imposing a definitive anti-dumping duty on imports of certain plastic sacks and bags originating in the People s Republic of China and Thailand, and terminating the proceeding on imports of certain plastic sacks and bags originating in Malaysia (OJ L 270, 29.9.2006, p. 4.) Council Implementing Regulation (EU) No 627/2012 of 10 July 2012 terminating the partial interim review and the expiry review concerning the anti-dumping measures applicable on imports of certain plastic sacks and bags originating in the People s Republic of China and Thailand imposed by Regulation (EC) No 1425/2006 (OJ L 182, 13.7.2012, p. 6.) EN 2 EN
exporting producer'). The exporting producer and the applicant [omissis]. The applicant also reported [omissis]. (5) In 2013, a partial refund of the duty paid was granted to [omissis]for requests concerning earlier periods of time ( the previous refund investigation ). 4 Investigation periods (6) The application was recurrent and on-going. On this basis for reasons of efficiency, in accordance with point 3.6 of the Commission Notice concerning the reimbursement of anti-dumping duties 5, the European Commission ( the Commission ) decided to establish two investigation periods. The following investigation periods were used: from 1 July 2010 to 30 June 2011 ( the first investigation period ) and from 1 July 2011 to 14 July 2012 ( the second investigation period ). B. ARGUMENTS OF THE APPLICANT (7) The applicant claimed that the dumping margin of its exporting producer, on the basis of which anti-dumping duties were paid, was eliminated or reduced below the level of the duty in force at the time and, therefore, requested the anti-dumping duties paid to be reimbursed. C. ADMISSIBILITY (8) The application relating to most of the transactions referred to in recital (4) above was submitted in conformity with the relevant provisions of the basic Regulation in respect of time-limits and evidence provided, and initially contained precise information on the amount of refund of countervailing duties claimed. Therefore, the application relating to those transactions was admissible under Article 11(8) of the basic Regulation. (9) For one transaction, the applicant submitted an application outside the six month time limit under Article 11(8) of the basic Regulation. This transaction was rejected as inadmissible. (10) For another set of transactions, the amount of the duties claimed was also modified in accordance with official customs documentation and consultation with the custosm authorities. (11) The total amount of duties which could potentially be refunded therefore amounted to [omissis] for the first investigation period and to [omissis]for the second investigation period. (12) The application has been duly supported by evidence as of 25 March 2014, the date on which the exporting producer submitted full evidence on export prices and normal values. General D. MERITS OF THE APPLICATION (13) The applicant purchases the product concerned from its related exporting producer but also from an unrelated producer in China, as explained further in recital (28) below. 4 5 Commission Decision C (2013)7222 concerning an application for a refund of anti-dumping duties paid on imports of certain plastic sacks and bags originating in the People s Republic of China. Commission Notice concerning the reimbursement of anti-dumping duties (OJ C 164, 29.5.2014, p. 9). EN 3 EN
(14) The exports to the Union were channelled through a related trader located in [omissis] and entered the Union via a related importer located in [omissis]. In the Union, the product concerned was further traded to unrelated customers through [omissis]. These related companies are [omissis]. (15) Due to the large number of related companies in the Union involved in the sale of the product concerned on the Union market, sampling was applied under Article 17 of the basic Regulation. The four sampled companies are the first four largest in volume of sales of plastic sacks and bags and they represent more than 90% of the total sales into the Union in the two investigation periods. The four sampled companies are related within the meaning of Article 143 of the Community Customs Code's implementing provisions since they belong to the same group of companies and have common shareholding. The applicant also reported these companies as being related. (16) The Commission sought and verified all the necessary information for the determination of the dumping margin. The Commission also carried out verification visits at the premises of the following companies : (a) (b) (c) (d) Exporting producer in China: [omissis], Related trader outside the Union: [omissis], Related importers in the Union: [omissis], Related companies involved in the sale of the product concerned in the Union: [omissis]. Market economy treatment (17) Pursuant to Article 2(7)(b) of the basic Regulation, in anti-dumping investigations concerning imports originating in the PRC, normal value shall be determined in accordance with Article 2(1) to (6) for those producers which were found to meet the criteria laid down in Article 2(7)(c) of the basic Regulation. (18) Briefly, and for ease of reference only, these criteria are set out below: (a) (b) (c) (d) (e) business decisions are made in response to market conditions and without significant State interference, and costs reflect market values; firms have one clear set of basic accounting records, which are independently audited, in line with international accounting standards and applied for all purposes; there are no significant distortions carried over from the former non-market economy system; legal certainty and stability is provided by bankruptcy and property laws and currency exchanges are carried out at the market rate. (19) In the present investigation the exporting producer requested MET pursuant to Article 2(7)(b) of the basic Regulation and replied to the MET claim form within the given deadline. EN 4 EN
(20) The Commission sought all the information deemed necessary and verified all the information submitted in the MET claim at the premises of the company in question for both investigation periods. (21) The verification established that the exporting producer met the requirements of the five criteria laid down in Article 2(7)(c) of the basic Regulation, namely: (a) (b) (c) (d) (e) The company is a wholly-owned foreign enterprise. The decision making process for change in capital, decisions regarding appointments of directors and their remuneration as well as amendments to the Articles of Association were made in line with the Chinese Company law. The investigation did not establish any apparent involvement of local/regional authorities in the charges/price settings for the raw materials and utilities used in the production of the product concerned. Labour was hired and laid off freely by the management and it was subject to the relevant Chinese legislation. The labour contracts were analysed and did not reveal any indications that the company is subject to State interference or that labour contracts were not in line with Chinese labour law. The company had one clear set of accounting records, which are audited yearly by the certified public accountants. The investigation established that there were no significant distortions carried over from the non-market economy system. In particular, the production costs and the financial situation as well as the depreciation of assets and land use rights reflected market terms. The investigation did not reveal any evidence that the company had been involved in barter or counter trade and payments via compensation of debts. The company was subject to the relevant Chinese bankruptcy and property laws, the application of which was designed to guarantee legal certainty and stability for the operation of firms. There was no indication that these laws were not applied to the company. There were no restrictions for the company concerning the use and conversion of foreign currency. The exchange rate conversions were done on the basis of the official market rates. Adjustments of the account with the actual exchange rates were done. (22) On the basis of the positive assessment of all five criteria mentioned above, MET was granted. Normal value (23) The exporting producer had no sales of the like product on the domestic market in the first investigation period and only a few sales of the like product on the domestic market in the second investigation period, which were on that basis considered not representative. Therefore, the normal value had to be constructed in accordance with Article 2(3) of the basic Regulation. (24) The cost of production for the product types was determined on the basis of actual data per product type corresponding to the company s article number for the products exported to the Union. (25) The amount for selling, general and administrative costs ('SG&A') and for profit margins was determined under Article 2(6) of the basic Regulation. Article 2(6) chapeau is not applicable because the exporting producer does not have representative EN 5 EN
domestic sales. Therefore, amounts for SG&A and profits cannot be based on its actual data pertaining to production and sales of the like product. Article 2(6)(a) is also not applicable because there are no other exporters or producers subject to the current investigation from which to collect the necessary data. Article 2(6)(b) is not applicable because there is no available data about the general category of products by the exporting producer (the exporting producer has no representative activity on the domestic market). Consequently, in accordance with Article 2(6)(c) another reasonable method for the determination of SG&A and the profit was applied. (26) The Commission used the SG&A and profit margins as determined in the original investigation, namely [omissis]. The figures of the original investigation were actual data relating to the domestic sales of the like product by other exporting producers. In the absense of any other available data that could reasonably be used, it was considered reasonable to use these actual figures. Export price (27) The export sales to the Union subject to the refund application were made through related companies in the Union. These companies performed all import functions in relation to the goods entering into free circulation in the Union. Consequently, the export price was established in accordance with Article 2(9) of the basic Regulation, on the basis of prices at which the imported products were first resold to an independent buyer in the Union. Adjustments were made to take account of all costs incurred between importation and resale, and for profits accruing, so that a reliable export price could be established. In the absence of information from independent importers concerning profits accruing during first or second investigation period, the profit amount established for unrelated importers in the original investigation was used. (28) The applicant and its related companies purchased the same product types from both their related producer in the PRC and an unrelated producer in the PRC and claimed that they cannot differentiate the resale transactions based on the origin of the goods once the goods entered the Union. Therefore, the applicant reported all sales transactions, including those from the unrelated producer which were not covered by the current refund investigation. The same factual circumstances were established in the previous refund investigation. (29) As in the previous refund investigation, the Commission established the export price on the lowest value sales to independent customers by the sales subsidiaries per product type corresponding to the company s article number and number of products imported from the exporting producer in the relevant periods. This minimized the impact of import transactions from the unrelated supplier not covered by the current refund investigation for the purpose of calculating the dumping margin. Comparison (30) The normal value and the export price were compared per product type corresponding to the company s article number on an ex-works basis. For the purpose of ensuring a fair comparison, due allowance in the form of adjustments was made for differences affecting prices and price comparability in accordance with Article 2(10) of the basic Regulation. For this purpose, appropriate adjustments were made for transport, indirect taxation (anti-dumping duty, custom duty and VAT) and branding costs where applicable and justified. Dumping margin EN 6 EN
(31) Under Article 2(11) of the basic Regulation the weighted average normal value by product type corresponding to the company s article number was compared with the weighted average export price of the corresponding type of the product concerned. This comparison showed that the dumping margin for the first and the second investigation period has been eliminated. E. REFUND CALCULATION (32) For the transactions customs cleared during both investigation periods the dumping margin was eliminated. Accordingly, for the transactions customs cleared during these periods a refund is accepted for the amounts stated in recital (11). (33) The total amount to be refunded to [omissis]is therefore [omissis] for the first investigation period and [omissis]for the second investigation period. F. DISCLOSURE (34) On 12 August 2015, the Commission informed the applicant of the above findings on the basis of which it was intended to propose to adopt a Commission Decision granting a refund. The applicant replied that he did not have comments. G. CONCLUSION (35) On the basis of the findings of this investigation, a comparison between the dumping margins established during both investigation periods and the anti-dumping duty in force shows that a refund should be granted for an amount of [omissis], while the application should be rejected in respect of the [omissis], HAS ADOPTED THIS DECISION: Article 1 The refund application submitted by [omissis]in respect of anti-dumping duties paid on imports of certain plastic sacks and bags originating in the People s Republic of China is granted in the amount of [omissis]. This Decision is addressed to [omissis]. Done at Brussels, 18.9.2015 Article 2 For the Commission For the Commission Cecilia MALMSTRÖM Member of the Commission EN 7 EN