2014/109/EU: Commission Implementing Decision of 4 February 2014 repealing Decision 2000/745/EC accepting undertakings offered in connection with the anti-dumping and anti-subsidy proceedings concerning imports of certain polyethylene terephthalate (PET) originating, inter alia, in India

• Published date: 28 February 2014
• Subject Matter: dumping,Asociación Europea de Libre Comercio (AELC)
• Official Gazette Publication: Gazzetta ufficiale dell’Unione europea, L 059, 28 febbraio 2014,Diario Oficial de la Unión Europea, L 059, 28 de febrero de 2014,Journal officiel de l’Union européenne, L 059, 28 février 2014,Diario Oficial de la Unión Europea, L 310, 30 de octubre de 2014

28.2.2014 EN Official Journal of the European Union L 59/35

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COMMISSION IMPLEMENTING DECISION

of 4 February 2014

repealing Decision 2000/745/EC accepting undertakings offered in connection with the anti-dumping and anti-subsidy proceedings concerning imports of certain polyethylene terephthalate (PET) originating, inter alia, in India

(2014/109/EU)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

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 (1) (the ‘basic anti-subsidy Regulation’), and in particular Articles 13 thereof,

After consulting the Advisory Committee,

Whereas:

A. EXISTING MEASURES

(1) Countervailing measures on imports of polyethylene terephthalate (‘PET’) originating in India have been in force since 2000 (2). These measures have been last maintained by Council Implementing Regulation (EU) No 461/2013 (3), following an expiry review.

(2) Anti-dumping measures on imports of PET originating in India have been in force since 2000 (4). These measures have been last maintained by Council Regulation (EC) No 192/2007 (5), following an expiry review. On 24 February 2012 the Commission initiated a subsequent expiry review. By Implementing Decision 2013/226/EU (6), the Council rejected the Commission’s proposal for a Council implementing regulation maintaining the anti-dumping duty on imports of PET originating in, inter alia, India and, thus, the anti-dumping measures expired.

(3) In 2000, by Decision 2000/745/EC (7) the Commission accepted price undertakings (‘the undertakings’), offered in connection with both the anti-dumping and anti-subsidy proceedings from, inter alia, the Indian companies: Pearl Engineering Polymers Limited (‘Pearl’) and Reliance Industries Limited (‘Reliance’). In 2005, by Decision 2005/697/EC (8) amending Decision 2000/745/EC, the Commission accepted an undertaking from the Indian company South ASEAN Petrochem Limited which as a result of a merger changed its name to Dhunseri Petrochem & Tea Limited (‘Dhunseri’) (9).

B. CHANGE IN CIRCUMSTANCES DURING THE IMPLEMENTATION OF THE UNDERTAKINGS

(4) A change in the circumstances during the implementation of the undertakings may justify a decision of the Commission to exercise its power to withdraw the acceptance of the undertakings, as set out in Article 13(9) of the basic anti-subsidy Regulation.

(5) The repeal of the anti-dumping measures and the maintenance of countervailing duties constitute a change in the circumstances under which the undertakings were accepted. The undertakings were accepted in the presence of both anti-dumping and anti-subsidy measures. The core element of the undertakings, the Minimum Import Price (‘MIP’), reflects both the dumping and subsidy element. Currently, there is no dumping element. Therefore, the MIP is not at the appropriate level.

C. BREACHES OF THE UNDERTAKING

(6) In addition, one of the Indian companies, Pearl, did not respect its reporting obligation vis-à-vis the Commission. The company failed to submit quarterly sales reports. The Commission is thus unable to effectively monitor the undertaking.

(7) The provisions of the undertaking stipulate that failure to submit reports constitutes a breach of the undertaking. A recent ruling of the Court of Justice (10) also confirmed that reporting obligations must be regarded as primary obligations for the proper functioning of an undertaking.

(8) The acceptance of Pearl’s undertaking has to be withdrawn also on this basis.

D. WRITTEN SUBMISSIONS

(9) The three companies were granted the opportunity to be heard and make written submissions. Two Indian companies and the Committee of PET Manufacturers in Europe (CPME), representing the Union industry, commented.

1. Changed circumstances as a ground for withdrawing the acceptance of an undertaking

(10) One company claimed that the proposal to withdraw the acceptance of the undertaking lacked a legal basis. That party claimed that Article 13(9) of the basic anti-subsidy Regulation did not explicitly mention ‘changed circumstances’ and linked any possibility to withdraw the acceptance of the undertaking with instances of breach. This argument had to be rejected. Article 13(9) of the basic anti-subsidy Regulation indeed does not explicitly mention ‘change in circumstances’. However, it clearly does not limit the instances in which the Commission may withdraw the acceptance of an undertaking to instances of breach. It states that ‘[i]n 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 [emphasis added], the acceptance of the undertaking shall, after consultation, be withdrawn…’. It therefore singles out the withdrawal of acceptance of an undertaking as a stand-alone basis for withdrawal.

(11) In fact, the Commission’s discretionary powers to accept or reject an undertaking offer have to be mirrored by the power to withdraw the acceptance of an undertaking, should the circumstances on the basis of which the undertaking offers were accepted change. According to the case-law of the Court, ‘it is for the institutions, in the exercise of their discretionary power, to determine whether […] undertakings are acceptable.’ (11). That discretionary power is in general wide in the sphere of measures to protect trade, because the Union Courts recognize that in that sphere, the Institutions have to examine complex economic, political and legal situations. More specifically, the Court held that the Commission, ‘when exercising the powers assigned to it in [the basic Regulation], has a very wide discretion to decide, in terms of the interests of the Community, any measures needed to deal with the situation which it has established.’ (12). Hence, the Commission, when accepting, rejecting or withdrawing an undertaking, enjoys the discretion necessary in order to be able to implement trade measures in the Union interest.

(12) The Commission therefore rejects the argument that a change in circumstances, as

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