52007PC0561

[pic] | COMMISSION OF THE EUROPEAN COMMUNITIES |

Brussels, 2.10.2007

COM(2007) 561 final

Proposal for a

COUNCIL REGULATION

repealing the antidumping duties imposed by Council Regulation (EC) No 1050/2002 of 13 June 2002 on imports of recordable compact disks originating in Taiwan and allowing for their repayment or remission and repealing the countervailing duties imposed by Council Regulation (EC) No 960/2003 of 2 June 2003 on imports of recordable compact disks originating in India, allowing for their repayment or remission and terminating the proceeding in their respect

(presented by the Commission)

EXPLANATORY MEMORANDUM

CONTEXT OF THE PROPOSAL |

Grounds for and objectives of the proposal This proposal concerns the application of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community, as last amended by Council Regulation (EC) No 2117/2005 of 21 December 2005 ('the basic anti-dumping Regulation') and of Council Regulation (EC) No 2026/97 on protection against subsidized imports from countries not members of the European Community, as last amended by Council Regulation (EC) No 461/2004 of 8 March 2004 ('the basic anti-subsidy Regulation') in the proceedings concerning antidumping duties imposed on imports of recordable compact disks originating in Taiwan and concerning countervailing duties imposed on imports of recordable compact disks originating in India. |

General context This proposal is made in the context of the implementation of the basic anti-dumping Regulation and of the basic anti-subsidy Regulation and is the result of an investigation which was carried out in line with the substantive and procedural requirements laid out in the basic anti-dumping Regulation and in the basic anti-subsidy Regulation. |

Existing provisions in the area of the proposal There are no existing provisions in the area of the proposal. |

Consistency with other policies and objectives of the Union Not applicable. |

CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT |

Consultation of interested parties |

Interested parties concerned by the proceedings have already had the possibility to defend their interests during the investigation, in line with the provisions of the basic anti-dumping Regulation and of the basic anti-subsidy Regulation. |

Collection and use of expertise |

There was no need for external expertise. |

Impact assessment This proposal is the result of the implementation of the basic anti-dumping Regulation and of the basic anti-subsidy Regulation. The basic anti-dumping Regulation and the basic anti-subsidy Regulation do not foresee a general impact assessment but contain an exhaustive list of conditions that have to be assessed. |

LEGAL ELEMENTS OF THE PROPOSAL |

Summary of the proposed action On 22 March 2007, the Commission announced by a notice, published in the Official Journal of the European Union[1], the initiation of a partial interim review of the antidumping measures applicable to imports of recordable compact disks originating in Taiwan and of a partial interim review of the countervailing measures applicable to imports of recordable compact disks originating in India. The reviews, initiated on the Commission's own initiative, have been limited in scope to the examination of the Community interest. The enclosed Commission proposal for a Council Regulation contains the definitive conclusions regarding Community interest. Member States were consulted during the Anti-Dumping and Anti-subsidy Committees of 6 September 2007. Member States were largely in favour of the proposed course of action. It is proposed that the Council adopts the attached proposal for a Regulation which should be published in the Official Journal of the European Union as soon as possible. |

Legal basis Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community, as last amended by Council Regulation (EC) No 2117/2005 of 21 December 2005 and Council Regulation (EC) No 2026/97 on protection against subsidized imports from countries not members of the European Community, as last amended by Council Regulation (EC) No 461/2004 of 8 March 2004 ('the basic anti-subsidy Regulation'). |

Subsidiarity principle The proposal falls under the exclusive competence of the Community. The subsidiarity principle therefore does not apply. |

Proportionality principle The proposal complies with the proportionality principle for the following reason(s): |

The form of action is described in the above-mentioned basic anti-dumping Regulation and basic anti-subsidy Regulation and leaves no scope for national decision. |

Indication of how financial and administrative burden falling upon the Community, national governments, regional and local authorities, economic operators and citizens is minimized and proportionate to the objective of the proposal is not applicable. |

Choice of instruments |

Proposed instruments: Regulation. |

Other means would not be adequate for the following reason(s). The above-mentioned basic anti-dumping Regulation and basic anti-subsidy Regulation do not foresee alternative options. |

BUDGETARY IMPLICATION |

The proposal has implications for the Community budget. Measures are repealed retroactively. Repayment or remission must be requested from national customs authorities in accordance with applicable customs legislation. |

1. Proposal for a

COUNCIL REGULATION

repealing the antidumping duties imposed by Council Regulation (EC) No 1050/2002 of 13 June 2002[2] on imports of recordable compact disks originating in Taiwan and allowing for their repayment or remission and repealing the countervailing duties imposed by Council Regulation (EC) No 960/2003 of 2 June 2003[3] on imports of recordable compact disks originating in India, allowing for their repayment or remission and terminating the proceeding in their respect

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community,

Having regard to Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community[4] ('the basic anti-dumping Regulation'), and in particular Article 11 (3) thereof,

Having regard to Council Regulation (EC) No 2026/97 on protection against subsidized imports from countries not members of the European Community ('the basic anti-subsidy Regulation'),[5] and in particular Article 19 thereof,

Having regard to the proposal submitted by the Commission after consulting the Advisory Committee,

Whereas:

A. PROCEDURE

2. Measures in force and subject of the review

3. Definitive anti-dumping duties applicable to imports of recordable compact disks originating in Taiwan were imposed on 18 June 2002.[6] (the original anti-dumping proceeding') They ranged from 17,7% to 38,5%. These measures lapsed ipso iure on 18 June 2007.[7]

4. Definitive countervailing duties on imports of CD-Rs from India were imposed on 5 June 2003.[8] They amounted to 7,3% ('the original anti-subsidy proceeding').

5. Previous investigations concerning imports of CD-Rs from the People's Republic of China, Hong Kong and Malaysia

6. By Decision 2006/753/EC of 3 November 2006, the Commission terminated an anti-dumping proceeding concerning imports of recordable compact discs ('CD-Rs') originating in the People's Republic of China ('PRC'), Hong Kong, and Malaysia on grounds of lack of Community interest in the imposition of measures ("the termination Decision").[9] It has been concluded that due to its low market share the Community industry was not likely to obtain any significant benefits from the imposition of measures. The imposition of measures was thus considered disproportionate in view of the substantial negative effects on importers, distributors, retailers and consumers.

7. Initiation of a review

8. The initiation of a partial interim review of the antidumping measures applicable to imports of recordable compact disks originating in Taiwan and of a partial interim review of the countervailing measures applicable to imports of recordable compact disks originating in India was announced on 22 March 2007 in the Official Journal of the European Union (" the notice of initiation")[10].

9. The reviews, initiated on the Commission's own initiative, have been both limited in scope to the examination of the Community interest, with the decision thereon possibly having retroactive effect as of 5 November 2006, i.e. the date of entering into force of the termination Decision. For the purpose of procedural efficiency, the reviews of both anti-dumping duties applicable to imports of CD-Rs from Taiwan and of countervailing duties applicable to imports of CD-Rs from India were combined in one investigation.

10. As mentioned above, the anti-dumping measures imposed on imports originating in Taiwan lapsed on 18 June 2007. As a consequence, the review concerning Taiwan has been discontinued. However, it was formally conducted until that date and the Commission considered most notably the question of retroactive repealing of duties paid between 5 November 2006 and 18 June 2007.

11. Due to the need for procedural efficiency and in order to ensure overall consistency of its actions, the Commission combined the conclusions of both reviews in the present Regulation.

12. Parties concerned by the proceeding

13. The Commission officially advised the Community producers, importers and users as well as exporters and representatives of India and Taiwan of the initiation of the proceeding. All interested parties were given an opportunity to make their views known in writing and to request a hearing within the time limit set in the notice of initiation. Due to the fact that the reviews have been limited to the aspects of Community interest, the Commission invited only parties located in the Community, i.e. the Community producers, importers and users to fill in the questionnaires. Questionnaire replies were received from one producer, 14 importers, and 10 users.

14. The Commission received also a letter from the Committee of European CD-Rs Manufacturers ('CECMA') which represented the complainant in the original anti-dumping and anti-subsidy proceedings and in the proceedings concluded by the termination Decision - as well as a letter from the former representative of the company D as identified in the termination Decision.

15. Further, the Commission's services received submissions from other interested parties, most notably distributors and suppliers of an Indian exporter.

16. The Commission's services duly analysed all submissions and arguments put forward by the interested parties. Given the state of the Community production, however, the conclusions of the present review will be limited to the identification of the Community industry.

17. Investigation period

18. The investigation of the aspects of Community interest covered the period from 1 January 2006 to 31 December 2006 ('investigation period' or 'IP'). The examination of trends relevant for the assessment of Community interest covered the period from 1 January 2003 to the end of the investigation period ('period considered').

19. Product concerned and like product

20. Product concerned

21. The product under review is recordable compact discs (CD-Rs) originating in India ('the product concerned'), currently classifiable within CN code ex 8523 40 11. This CN code is given only for information.

22. The same product originating in Taiwan was under review between 22 March 2007 when the notice of initiation was published and 18 June 2007 when the antidumping duties applicable to imports of CD-Rs from Taiwan lapsed.

23. The product concerned is polycarbonate disc, which is coated with a layer of dye, a layer of reflective material and a protective layer. Although recording on such discs can be done in several steps, the recorded information cannot be erased. The disc is an optical storage medium for digital data or sound.

24. CD-Rs can be distinguished according to the type of data stored (data CD-Rs versus music CD-Rs), the storage capacity, the reflective metal layer and whether or not the CD-Rs are printed upon. All types of CD-Rs share the same physical and technical characteristics and are used for the same purposes. Therefore they are considered to constitute one single product.

25. Like product

26. In the framework of the present proceedings no comments were made challenging the comparability of the CD-Rs imported to or produced in the Community. On these grounds all types of CD-Rs originating in India or Taiwan and produced in the Community are considered to be alike within the meaning of Article 1(4) of the basic anti-dumping Regulation and Article 1(5) of the basic anti-subsidy Regulation.

B. COMMUNITY PRODUCTION AND COMMUNITY INDUSTRY

1. Community production and Community industry in the proceedings concluded by the termination Decision

27. In these proceedings (see recital 28, and 58 et seq . of the termination Decision), the Commission's services established that the Community production within the meaning of Article 4(1) of the basic Regulation was constituted by 10 producers. Only one of them was considered to constitute the Community industry within the meaning of Art. 4(1) and Art. 5(4) of the basic anti-dumping Regulation (Manufacturing Advanced Media ('MAM-E').

2. Community production and Community industry in the current proceedings

28. None of the producers deemed to constitute the Community production in the termination Decision did co-operate in the current proceeding.

29. Further, the Commission received evidence that the sole company constituting the Community industry in the proceeding which led to the termination Decision underwent liquidation proceedings. This has been confirmed in the letter sent by its former representative. The Commission also received a copy of a court decision commencing the liquidation proceedings, whereby the activities of the company have been ceased. The questionnaire sent out by the Commission was returned with the annotation – 'liquidation judiciaire'.

30. In addition, the Committee of European CD-Rs Manufacturers ('CECMA'), although it expressed that it supported the continued imposition of measures, did not submit any questionnaire or evidence on behalf of any Community producer - member of the association.

31. Another company (Company A, as identified in the termination Decision) informed the Commission that it ceased production in the Community.

32. Finally, the Commission received also a reply from Company B (as identified in the termination Decision). No evidence was presented that would contradict the findings set out in the termination Decision, i.e. that company B should not be included in the definition of the Community industry and that its production should be excluded from the definition of the Community production (see recital 40 of the termination Decision).

33. On these grounds it is concluded that there is no remaining Community industry, and consequently no Community interest.

C. RETROACTIVE APPLICATION

34. In view of the above findings, the antidumping measures applicable to imports of recordable compact disks originating in Taiwan and the countervailing measures applicable to imports of recordable compact disks originating in India should be repealed with a retroactive effect to the date of entering into force of the termination Decision.

35. Consequently, the definitive anti-dumping duties paid or entered in the accounts pursuant to Council Regulation (EC) No 1050/2002 of 13 June 2002 on imports of recordable compact disks (CDR) originating in Taiwan and the definitive countervailing duties paid or entered into account pursuant to Council Regulation (EC) No 960/2003 of 2 June 2003 on imports of recordable compact disks originating in India, and released for free circulation as from 5 November 2006 should be repaid or remitted.

36. Repayment or remission must be requested from national customs authorities in accordance with applicable customs legislation.

HAS ADOPTED THIS REGULATION:

Article 1

The anti-dumping duties on imports of recordable compact disks (CD-R) originating in Taiwan imposed by Council Regulation (EC) No 1050/2002 of 13 June 2002 and the countervailing duties on imports of recordable compact disks (CD-R) originating in India imposed by Council Regulation (EC) 960/2003 of 2 June 2003 are hereby repealed.

Article 2

The anti-subsidy proceedings concerning imports of recordable compact disks (CD-R) originating in India are hereby terminated.

Article 3

This Regulation shall enter into force on the day following its publication in the Official Journal of the European Union .

Article 1 shall apply from 5 November 2006.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels,

For the Council

The President

[1] OJ C 66, 22.3.2007, p. 16.

[2] OJ L 160, 18.6.2002, p. 2.

[3] OJ L 138, 5.6.2003, p. 1.

[4] OJ L 56, 6.3.1996, p. 1. Regulation as last amended by Regulation (EC) No 2117/2005 (OJ L 340, 23.12.2005).

[5] OJ L 288, 21.10.97, p. 1, as last amended by Regulation (EC) No 461/2004 (OJ L 77, 13.3.2004, p. 12).

[6] OJ L 160, 18.6.2002, p. 2.

[7] OJ C 130, 12.6.2007, p. 17.

[8] OJ L 138, 5.6.2003, p. 1.

[9] OJ L 305, 4.11.2006, p. 15.

[10] OJ C 66, 22.3.2007, p. 16.