Judgments nº T-143/06 of Court of First Instance of the European Communities, November 17, 2009

Resolution Date:November 17, 2009
Issuing Organization:Court of First Instance of the European Communities
Decision Number:T-143/06
SUMMARY

Dumping – Imports of polyethylene terephthalate film originating in India – Regulation terminating an interim review – Minimum import price undertakings – Determination of the export price – Application of a methodology different from that used in the initial investigation – Choice of legal basis – Article 2(8) and (9) and Article 11(3) and (9) of Regulation (EC) No 384/96

 
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In Case T‑143/06,

MTZ Polyfilms Ltd, established in Mumbai (India), represented by P. De Baere, lawyer,

applicant,

v

Council of the European Union, represented by J.-P. Hix, acting as Agent, and G. Berrisch, lawyer,

defendant,

supported by

Commission of the European Communities, represented by N. Khan and K. Talabér-Ritz, acting as Agents,

intervener,

APPLICATION for annulment of Council Regulation (EC) No 366/2006 of 27 February 2006 amending Regulation (EC) No 1676/2001 imposing a definitive anti-dumping duty on imports of polyethylene terephthalate (PET) film originating, inter alia, in India (OJ 2006 L 68, p. 6),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber),

composed of J. Azizi, President, E. Cremona (Rapporteur) and S. Frimodt Nielsen, Judges,

Registrar: C. Kantza, Administrator,

having regard to the written procedure and further to the hearing on 9 December 2008,

gives the following

Judgment

Legal context

1 Article 2(8) and (9) of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1), as amended in particular by Council Regulation (EC) No 461/2004 of 8 March 2004 (OJ 2004 L 77, p. 12) (‘the Basic Regulation’), provide:

‘8. The export price shall be the price actually paid or payable for the product when sold for export from the exporting country to the Community.

9. In cases where there is no export price or where it appears that the export price is unreliable because of an association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported products are first resold to an independent buyer, or, if the products are not resold to an independent buyer, or are not resold in the condition in which they were imported, on any reasonable basis.

…’

2 Article 8(9) of the Basic Regulation provides:

‘In case of breach or withdrawal of undertakings by any party to the undertaking, or in case of withdrawal of acceptance of the undertaking by the Commission, the acceptance of the undertaking shall, after consultation, be withdrawn by Commission Decision or Commission Regulation, as appropriate, and the provisional duty which has been imposed by the Commission in accordance with Article 7 or the definitive duty which has been imposed by the Council in accordance with Article 9(4) shall automatically apply, provided that the exporter concerned has, except where he himself has withdrawn the undertaking, been given an opportunity to comment …’

3 Article 11(3), (6), (9) and (10) of the Basic Regulation provide:

‘3. The need for the continued imposition of measures may also be reviewed, where warranted, on the initiative of the Commission or at the request of a Member State or, provided that a reasonable period of time of at least one year has elapsed since the imposition of the definitive measure, upon a request by any exporter or importer or by the Community producers which contains sufficient evidence substantiating the need for such an interim review.

An interim review shall be initiated where the request contains sufficient evidence that the continued imposition of the measure is no longer necessary to offset dumping and/or that the injury would be unlikely to continue or recur if the measure were removed or varied, or that the existing measure is not, or is no longer, sufficient to counteract the dumping which is causing injury.

In carrying out investigations pursuant to this paragraph, the Commission may, inter alia, consider whether the circumstances with regard to dumping and injury have changed significantly, or whether existing measures are achieving the intended results in removing the injury previously established under Article 3. In these respects, account shall be taken in the final determination of all relevant and duly documented evidence.

6. Reviews pursuant to this Article shall be initiated by the Commission after consultation of the Advisory Committee. Where warranted by reviews, measures shall be repealed or maintained pursuant to paragraph 2, or repealed, maintained or amended pursuant to paragraphs 3 and 4, by the Community institution responsible for their introduction. Where measures are repealed for individual exporters, but not for the country as a whole, such exporters shall remain subject to the proceeding and may, automatically, be reinvestigated in any subsequent review carried out for that country pursuant to this Article.

9. In all review or refund investigations carried out pursuant to this Article, the Commission shall, provided that circumstances have not changed, apply the same methodology as in the investigation which led to the duty, with due account being taken of Article 2, and in particular paragraphs 11 and 12 thereof, and of Article 17.

10. In any investigation carried our pursuant to this Article, the Commission shall examine the reliability of export prices in accordance with Article 2. However, where it is decided to construct the export price in accordance with Article 2(9), it shall calculate it with no deduction for the amount of anti-dumping duties paid when conclusive evidence is provided that the duty is duly reflected in resale prices and the subsequent selling prices in the Community.’

Background to the dispute

4 The applicant, MTZ Polyfilms Ltd, is a company under Indian law producing polyethylene terephthalate (PET) film which it exports to the European Community and to third countries.

5 On 13 August 2001 the Council of the European Union adopted Regulation (EC) No 1676/2001 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of PET film originating in India and the Republic of Korea (OJ 2001 L 227, p. 1). The individual rate of anti-dumping duty applied to the applicant in recital 80 of that regulation was 49%.

6 By Commission Decision 2001/645/EC of 22 August 2001 accepting undertakings offered in connection with the anti-dumping proceeding concerning imports of polyethylene terephthalate film originating in India and the Republic of Korea (OJ 2001 L 227, p. 56), the Commission of the European Communities accepted undertakings offered by the applicant and by four other Indian exporters, whereby they undertook to export PET film to the Community at minimum import prices (‘MIPs’). The MIPs were different for each exporter. In the light of those undertakings, the imports into the Community of PET film produced by the applicant and by the four other Indian exporters were exempted from anti-dumping duty, in accordance with Article 2 of Regulation No 1676/2001.

7 On 22 November 2003 the Commission initiated a partial interim review of...

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