2002R0092 — EN — 28.06.2002 — 001.001 — 1
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B COUNCILREGULATION(EC)No92/2002
of17January2002
imposing definitive anti-dumping duty and collecting definitively the provisional anti-dumping
duty imposed on imports of urea originating in Belarus, Bulgaria, Croatia, Estonia, Libya,
Lithuania,RomaniaandtheUkraine
(OJ L 17, 19.1.2002, p. 1)
Amended by:
Official Journal
No page date
►M1Council Regulation (EC) No 1107/2002 of 25 June 2002 L 168 1 27.6.2002
Corrected by:
►C1Corrigendum, OJ L 176, 5.7.2002, p. 47 (92/2002)
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COUNCILREGULATION(EC)No92/2002
of17January2002
imposing definitive anti-dumping duty and collecting definitively
the provisional anti-dumping duty imposed on imports of ureaoriginating in Belarus, Bulgaria, Croatia, Estonia, Libya,
Lithuania,RomaniaandtheUkraine
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 notmembers of the European Community(
1), and in particular Article 9
thereof,
Having regard to the proposal submitted by the Commission after
consulting the Advisory Committee,
Whereas:
A.PROVISIONALMEASURES
(1)The Commission, by Regulation (EC) No 1497/2001(2) (the
provisional Regulation) imposed a provisional anti-dumpingduty on imports of urea falling within CN codes 3102 10 10and 3102 1090, and originating in Belarus, Bulgaria, Croatia,Estonia, Libya, Lithuania, Romania and the Ukraine.
(2)In the same Regulation it was decided to terminate theproceeding as regards imports of urea originating in Egypt andPoland.
B.SUBSEQUENTPROCEDURE
(3)Subsequent to the disclosure of the essential facts and considera-
tions on the basis of which it was decided to impose provisionalmeasures on imports of urea from Belarus, Bulgaria, Croatia,Estonia, Libya, Lithuania, Romania and the Ukraine, severalinterested parties submitted comments in writing. The parties,
which so requested were also granted an opportunity to be heard
orally.
(4)The Commission continued to seek and verify all information itdeemed necessary for its definitive findings.
(5)Additional verification visits were carried out at the premises ofthe following:
Community producers
— Fertiberia, Madrid.
— Hydro Agri France, Paris.
Users in the Community
— Libera Associazione Agricoltori Cremonesi, Cremona.
(6)All parties were informed of the essential facts and considera-
tions on the basis of which it is intended to recommend theimposition of definitive anti-dumping duties and the definitivecollection of amounts secured by way of provisional duties.They were also granted a period within which they could make
representations subsequent to this disclosure.
(7)The oral and written comments submitted by the parties were
considered and, where appropriate, the provisional findingshave been modified accordingly.2002R0092 — EN — 28.06.2002 — 001.001 — 2
(1) OJ L 56, 6. 3. 1996, p. 1. Regulation as last amended by Regulation (EC)
No 2238/2000, OJ L 257, 11.10.2000, p. 2.
(2) OJ L 197, 21.7.2001, p. 4.
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C.PRODUCTUNDERCONSIDERATIONANDLIKEPRODUCT
(8)In the absence of any comments, the definition of the product
under consideration and the like product as described at recitals
9 to 12 of the provisional Regulation are confirmed.
D.DUMPING
1.Marketeconomycountries
Normal value
Application of Article 18 of the Basic Regulation
(9)The exporting producer in Libya claimed that recital 63 of the
provisional Regulation does not accurately describe the level ofcooperation provided. It claimed that the Commission was aware
and implicitly accepted the fact that the overall company
accounts covering all activities of the groupwould not besubmitted due to confidentiality reasons. It furthermore claimedthat in line with Libyan accounting requirements, no publicaudited accounts have to be filed and therefore, in accordance
with Article 2(5) of the Basic Regulation, the Commission
should not have rejected the company's accounts on thesegrounds.
(10)As far as the level of cooperation is concerned, the Commissionhas never given any indication that it accepted the company's
refusal to submit essential accounting documents. On the
contrary, it has repeatedly informed the exporting producer ofthe possible application of Article 18 of the Basic Regulationincluding the use of best facts available, due to the deficientlevel of cooperation. Nevertheless, the company maintained itsposition and did not submit substantial information necessary to
reconcile in particular domestic sales and the cost of production
of the product concerned. Under these circumstances, and inorder to determine the normal value for the company concerned,the Institutions had no choice but to make use of facts available,and namely of information provided in the complaint, in accor-dance with Article 18 of the Basic Regulation. In view of the
above, it is incorrect to assume, as the company did, that the
absence of publicly audited accounts was the reason for the useof facts available in the determination of the normal value.
(11)This is also confirmed by the fact that the reported data wereused whenever it was possible to reasonably verify and reconcile
it with the company's internal accounts, in particular when estab-
lishing the export price of the Libyan exporting producer (seerecital 67 to 72 of the provisional Regulation).
(12)The same exporting producer claimed that its normal valueshould have been established on the basis of the actual domestic
sales price or alternatively constructed on the basis of the
company's own accounting data, rather than on the basis of thedata submitted by the Community industry in the complaint. Itargued that, for this purpose, all necessary evidence and informa-tion related to the production and sales of urea on the Libyandomestic market was provided.
(13)The company failed consistently to submit essential informationin the reply to the questionnaire and to satisfactorily explaininconsistencies and contradictions revealed during the verifica-tion visit, despite of the fact that these were expressly pointedout by the Commission in deficiency letters and on-spot. It was
therefore not possible to establish the completeness and correct-
ness of the domestic sales reported, nor of the cost of productionsubmitted. Consequently, as far as the submission of evidenceand information related to the production and sales of urea onthe Libyan domestic market is concerned, the findings of recital64 and 65 of the provisional Regulation are confirmed.2002R0092 — EN — 28.06.2002 — 001.001 — 3
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(14)As mentioned in recital 66 of the provisional Regulation, in the
absence of any other reliable information normal value for the
exporting producer in Libya had to be established on the basisof the data submitted in the complaint in accordance Article 18of the Basic Regulation.
(15)The same exporting producer claimed that, in any case, the profitmargin used in the complaint in order to construct normal valuewas overestimated. It argued in support of its claim that profit
margins in the urea business are traditionally low.
(16)On the basis of the findings regarding other cooperatingexporting producers in this proceeding, the Commission consid-
ered it appropriate to review the level of the profit margin usedfor constructing the normal value of the exporting producer inLibya.
(17)As outlined in recital 22 of the provisional Regulation, theaverage profit margin realised by the cooperating exportingproducers in the present investigation when selling the product
concerned on their domestic markets, in accordance with Article
2(6)(c) of the Basic Regulation, has been used to construct thenormal value of those exporting producers for which the profitmargin could not be established in accordance with the chapeauof Article 2(6) of the Basic Regulation or its subparagraphs (a)
and (b). Considering that no valid reason could be identified
which would justify to apply a different profit margin to theLibyan exporting producer, and in the absence of any moreappropriate information, it was decided to apply at the definitivestage this same profit margin to the Libyan producer in order toestablish normal value.
Normal value based on domestic sales
(18)Two exporting producers in Romania submitted that normal
value should be established on a monthly basis due to inflationin Romania during the investigation period. This methodologyhas been used at the provisional stage for all exporting producerin Romania.
(19)After imposition of the provisional anti-dumping duties, thisapproach was however re-analysed. The investigation has shown
that the effects of the inflation were not such as to justify the
calculation of monthly normal values. It is the Institution'sconsistent practice to establish average normal values for theinvestigation period except in situations such as hyperinflation.These conditions were however not fulfilled in the case of
Romania.
(20)It was consequently considered appropriate to establish thenormal value at the definitive stage for each exporting producer
in Romania on the basis of the average price paid on thedomestic market during the investigation period.
Constructed normal value
(21)The Community industry claimed that for the determination of
the profit margin used in the construction of normal values for
the exporting producers in Bulgaria, Estonia and Lithuania, the
minimum return on capital employed ‘normally necessary tosustain a viable urea business over the medium-long term’should have been used. It was argued that profit margins in theabove countries would in general not be reliable due to ‘over-hangs’ of the non market economy system in the accounting
policies of the companies concerned.
(22)The investigation did not reveal any evidence or information
indicating that the accounts of the companies concerned werenot reliable and could thus not be used in the determination ofthe profit margin. Therefore, the Institutions had no alternativebut to establish normal values in accordance with Article 2(3)and (6) of the Basic Regulation. Thus, profit margins were estab-2002R0092 — EN — 28.06.2002 — 001.001 — 4
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lished in accordance with Article 2(6)(b) and (c) of the Basic
Regulation, i.e. on the basis of the profit realised for the samegeneral category of products produced and sold by the exporting
producer concerned on the domestic market in the case of
Lithuania; and in the case of Bulgaria and Estonia on any otherreasonable basis, i.e. on the basis of the weighted average profitmargin found for the other cooperating exporting producers inthis proceeding.
(23)However the level of the profit margin which was established inaccordance with Article 2(6)(c) of the Basic Regulation on thebasis of the weighted average profit margins of cooperating
exporting producers with profitable domestic sales was re-exam-
ined. Further to the termination of the proceeding as regardsimports of urea originating in Egypt, exporting producers fromEgypt were excluded from the calculation of the average profitmargin.
(24)Following the comments of the Estonian exporting producer theprofit margin used for the reconstruction of its normal value wasreassessed. A re-examination of the provisional findings made
apparent that the profit margin used — based on the sales of
other products by the company — had to be reviewed, sincethese products could not be considered as being part of thesame general category as the product concerned (i.e. fertilisers).Thus, in the absence of sufficient sales in the ordinary course oftrade, of any other Estonian exporters/producers of the product
concerned and/or other products of the same general category
sold by the Estonian company concerned, any other reasonablemethod has been applied at the definitive stage pursuant toArticle 2(6)(c) of the Basic Regulation. In this regard, the profitmargin has been based on the weighted average profit margin of
the other cooperating exporting producers concerned (as for the
Bulgarian exporting producer, see recital 22 above).
(25)The Lithuanian exporting producer has argued against the use of
selling, general and administrative costs (SG&A) and profit of
ammonium nitrate (AN) in constructing normal value. It claimedthat urea and ammonium nitrate are different fertilisers, sold indifferent markets and in different competitive situations, andwith differences in manufacturing technology, market demand,selling prices and costs.
(26)Since there is only one producer of urea in Lithuania, and in theabsence of representative domestic sales, Article 2(6)(b) of the
Basic Regulation is a possibility for the determination of SG&A
and profit. Also, urea and AN are both nitrogen fertilisers and,even if differences in production technology exist to someextent, they do belong to the same general category of products,as required by the Basic Regulation. For the sake of argument,markets and competitive situations are not dissimilar (one
producer, import competition). In view of the above, it was
decided to maintain the provisional determination.
Export price
(27)In the absence of any comments by the interested parties, or any
other findings which could devaluate the provisional findings,
the export prices of the exporting producers concerned as estab-lished provisionally are hereby confirmed.
ComparisonHandling and loading cost
(28)Following the comments received by the Libyan exporting
producer with regard to the calculation of loading and handlingcosts when exporting the product concerned to the Community,the Commission reviewed its calculations and found a calcula-tion error which was corrected accordingly.2002R0092 — EN — 28.06.2002 — 001.001 — 5
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2.Non-marketeconomycountries
(29)The exporting producer from Belarus contested the fact that the
Commission has allegedly treated it as a non cooperating party
in the proceeding. The company claimed to have provided tothe Commission all the information requested and consideredthat the reason for being treated as a non cooperator was todeprive it of its rights as a cooperating party and namely of theopportunity to offer an undertaking.
(30)In the present investigation, the fact that the company did notprovide the information required to establish a verifiable exportprice led to the application of the rule set in Article 18 of theBasic Regulation for non-cooperating parties and consequentlyto the partial use of ‘facts available’, in this case the export
figures provided by Eurostat.
(31)It is nevertheless noted that, contrary to the company's allega-
tions, the partial application of Article 18 did not deprive it ofany of its rights as an interested party, and namely of the rightto receive disclosure, to be heard and to present written submis-
sions, to consult non confidential files and the opportunity to
offer an undertaking.
Market economy status (‘MES’)
(32)As outlined in recital 118 to 130 of the provisional Regulation,
in accordance with Article 2(7)(b) of the Basic Regulation, threecompanies in the Ukraine filed applications that market economyconditions prevail in respect of the manufacture and sale of thelike product concerned (‘market economy status’ or ‘MES’). It is
recalled that two Ukrainian companies received MES. One
Ukrainian exporting producer, which was refused MES,disagreed with the Commission's findings on possible State inter-ference.
(33)The Community industry re-iterated its claim that companies in
the Ukraine producing and selling nitrogen fertilisers including
urea, are subject to significant State interference and that there-fore, on a general basis, no MES should have been granted. Inparticular, it argued that the Ukrainian fertiliser market was char-acterised by the existence of tolling agreements, barter chainarrangements and State interference in energy, electricity and
transportation cost, and that all these factors were incompatible
with a market economy situation.
(34)These arguments by the exporting producers and the Communityindustry have already been treated in recitals 118 to 130 of theprovisional Regulation. It is nevertheless added that concerning
tolling agreements, it was considered that these are not per se
in contradiction with MES, since they cannot necessarily beconsidered as a typical characteristic of State interference. Asfar as the State interference in transport costs is concerned, thiswas taken into account by using the transport rates applicable in
the analogue country. Concerning energy and electricity costs,
no evidence was found that these costs were significantlydistorted by State interference and that they did not substantiallyreflect market value. Furthermore, compared with natural gas,the cost of energy and electricity is not a major input of urea.
Individual treatment
(35)The Community industry objected to the decision to grant indi-
vidual treatment to one of the Ukrainian exporting producersarguing that the shareholding of the State in the company would
allow significant State interference.
(36)However, no new information or evidence was submitted by the
complainant Community industry showing that the alleged Stateinterference would permit circumvention of the measuresimposed and the claim had thus to be rejected. The findings of2002R0092 — EN — 28.06.2002 — 001.001 — 6
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the provisional Regulation (recital 132) are consequently
confirmed.
Sales under tolling agreements
(37)As described in recitals 133 to 135 of the provisional Regulation
three companies in the Ukraine were involved in tolling agree-ments. It is recalled that, under Ukrainian law, the provider ofthe raw materials remains the owner of the finished product, the
company doing the transformation does not acquire property
rights over the goods.
(38)The investigation revealed that one of the companies which was
granted MES could not be considered, on its own, an exporting
producer of the product concerned. This company had estab-lished a long-term business relationshipwith another comp anybased in a third country. According to this relationship, the lattercompany was virtually the sole supplier under tolling agreements(and owner throughout the production process) of the main raw
material. This company was also actively involved on the export
sales of the product concerned. These facts clearly indicated thatthe relationshipbetween these comp anies went beyond the usualbuyer-seller relationship.
(39)In the absence of any cooperation from the associated gassupplier, neither the full cost of manufacturing nor the pricepaid or payable on export sales could be established, let aloneverified. It should also be noted that although certain informationon export prices to the first independent buyer was available, this
information was not verifiable and could therefore not be used to
establish a dumping margin. Since without the cooperation of theassociated supplier (and legal owner of both the main raw mate-rial and the finished product), neither the normal value nor theexport price of the Ukrainian company concerned could be reli-
ably established. Therefore, an individual dumping margin could
not be established for this company.
(40)Another Ukrainian company, which was neither granted MES
nor individual treatment, realised all its export sales under tolling
agreements. In the absence of any cooperation of its gassupplier, and in the absence of verifiable export prices to thefirst independent buyer, the prices of these transactions wereestablished as described in recital 66 below in the purpose ofthe assessment of the country-wide dumping margin.
(41)Finally, a third company has done part of its domestic andexport sales under tolling agreements. Likewise, in the absenceof cooperation from its suppliers, and in the absence of verifiable
prices to the first independent buyer, the Community Institutions
had no option but to disregard all sales made under such tollingagreements. The remaining domestic sales were still representa-tive, as determined in recital 138 of the provisional dutyRegulation.
(42)Two further Ukrainian companies which had also sales on thebasis of tolling and whose gas suppliers equally refused to coop-erate argued nevertheless that the sales data submitted wasaccurate and reliable and that they had provided sufficient
evidence allowing these transactions to be taken into account
when determining normal value or export price.
(43)During the verification visit it was established that neither the
invoice prices nor the payments for urea were included in the
accounting records of these companies. In the absence of anycooperation by the suppliers of gas, in which accounts thesedata should normally be registered, or of any evidence of theactual payments for these transactions, the information couldnot be verified and could not, therefore, be accepted.2002R0092 — EN — 28.06.2002 — 001.001 — 7
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Normal value
(i)Analogue country
(44)Three Ukrainian exporting producers argued that their normal
value should not have been based on the domestic prices andcosts of an analogue country, but that the normal value basedon domestic sales of an Ukrainian exporting producer whichwas granted MES should have been used instead.
(45)It is the Community institutions' consistent practice, in line withArticle 2(7)(b) of the Basic Regulation, to determine normal
value on the basis of paragraphs 1 to 6 of Article 2 of the Basic
Regulation only for those producers that can show that theyoperate in line with market economy conditions. For all otherproducers in the same country, normal value is determined onthe basis of Article 2(7)(a), i.e. on the basis of a price orconstructed value in a market economy third country, or on any
other reasonable basis foreseen in Article 2(7)(a). No changes
are therefore warranted in this respect to the provisional find-ings.
(46)The Belarussian exporting producer, three Ukrainian exportingproducers, the government of Belarus and the Ukraine as wellas an importer association objected to the choice of the USA as
an analogue country claiming that Lithuania was a more appro-
priate market economy third country.
(47)These parties alleged that the USA was not an appropriatechoice because of its high gas costs which would lead todistorted urea prices, its different level of economic developmentcompared to Belarus and the Ukraine, and differences in marketsize. The fact that only one producer in the USA cooperated was
also seen as an argument not to use USA as a market economy
third country. It was further argued that Lithuania was the mostappropriate analogue country. It was claimed that the volume ofurea produced in Lithuania was representative as compared tothe volume of exports of urea from the Ukraine and Belarus to
the Community during the IP. It was moreover claimed that
Lithuania would be an open, competitive market where noimport duties exist, with a similar access to natural gas, and asimilar production process as in Belarus and the Ukraine. Thefact that there was only one producer of urea in Lithuania wasalso considered irrelevant by the parties, as Lithuania and other
countries with one producer of the product concerned have
already been used in previous investigations of productsbelonging to the same category.
(48)The Community institutions have examined all the above argu-ments in detail and came to the following conclusions:
(49)While on the USA market more than ten producers of urea areoperating compared to at least five producers in Ukraine, there
is only one producer in Lithuania. Despite the fact that anti-
dumping duties exist in the USA on imports of urea from formerSoviet Union countries, there were substantial imports (morethan 1 million tons) of urea from a number of other third coun-tries. Although the further investigation revealed that there areno import duties applicable in Lithuania to imports of urea, those
imports remain nevertheless at a very low level. The USA has a
vast urea market (more than 10 million tons per year), whereasthe Lithuanian urea market is practically non-existing. Thus,sales of urea during the investigation period (‘IP’) on the Lithua-nian market were minimal and, according to the information
provided by the Lithuanian producer, not made in the ordinary
course of trade. It has thus been concluded that the US-marketfor urea is highly competitive, in contrast with the Lithuanianmarket. Finally, and contrary to Lithuania, domestic sales inUSA are representative when compared to Belarus and Ukrai-nian exports to the Community.2002R0092 — EN — 28.06.2002 — 001.001 — 8
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(50)The fact that only one US producer cooperated in this investiga-
tion does not render the above conclusions invalid. In fact, the
prices of this producer, which were used to establish normalvalue are subject to the above-described competition. The quan-tities sold by this producer alone were even representative whencompared to the total quantities exported from Belarus andUkraine to the Community.
(51)Regarding the similarity in access to natural gas, the main rawmaterial used for the production of urea, an analysis of thesupplies to the urea producers was also made. It was confirmedthat while the American producer had natural gas supplied bymore than one supplier, as it was the case in Ukraine, theLithuanian producer had only a single supplier and no possible
alternative suppliers. In addition, similar to Ukraine, the USA is
both a producer and an importer of natural gas, while Lithuaniahas no own natural gas resources.
(52)The Commission has also compared production processes in theUSA and Belarus and the Ukraine and concluded that the tech-
nology used by the American producer was at least as efficient
as the one used by the Belarus and Ukrainian producers.
(53)It was also argued that Lithuania should be used as the analoguecountry since it was subject to the same investigation.
(54)The Commission notes that Article 2(7) of the Basic Regulationstipulates that, where appropriate, a market economy country
which is subject to the same investigation shall be used.
However, for the reasons outlined in recitals 49 to 51, Lithuaniacould not be considered as an appropriate analogue country inthis investigation.
(55)As already stated in recital 107 of the provisional Regulation, anadjustment was made to the high natural gas cost during the IP
in the USA. The high natural gas cost was the result of a market
situation specific to the USA during the IP. This adjustmentbrought the gas cost down to a level comparable to the one ofother companies cooperating in this same proceeding.
(56)The Community industry supported the choice of the USA as ananalogue country. However, it claimed that gas prices in the
USA experienced only mild increases and that therefore no
adjustment should have been made in this regard. While it iscorrect that the sharpest increase in gas prices took place onlyin the second half of the year 2000, i.e. after the IP, it was foundthat during the second half of the IP there was already anunusual and specific increase in the cost of natural gas. The
adjustment made was therefore considered justified.
(57)For all the above reasons, it is concluded that the USA is an
appropriate analogue market economy country and was selectedin a not unreasonable manner. A normal value based on thedomestic sales in the USA made in the ordinary course of trade,
which includes a reasonable and not excessive profit margin, is
therefore fully in line with the requirements of Article 2(7)(a) ofthe Basic Regulation.
(ii)Normal value for companies granted MES
(58)The Ukrainian company, which had almost all its sales made
under tolling agreements, argued that its domestic sales shouldbe used as a basis for the determination of its normal value. Asalternatives, the company proposed the Commission to use thenormal value of an Ukrainian exporting producer to which MESwas granted or to construct normal value on the basis of the
company's own data.
(59)As a consequence of non-cooperation by the associated supplier
of gas, it was concluded that this Ukrainian company could notbe qualified, on its own, as an exporting producer of urea (seedetails in recitals 38 and 39). Consequently, no normal valuewas established.2002R0092 — EN — 28.06.2002 — 001.001 — 9
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(60)As announced in recital 138 of the provisional duty Regulation,
it was further examined whether adjustments to other cost
factors, and in particular to depreciation incurred by the Ukrai-nian exporting producer for which normal value was based onits own data, were necessary.
(61)A comparison of the depreciation cost included in the cost ofproduction of the different production facilities of the coop-erating producer in the analogue country with the depreciation
incurred by the Ukrainian producer showed certain differences.
However, these differences could have been caused by numerousfactors and were in any event not such as to warrant an adjust-ment to the Ukrainian producer's cost. Moreover, as the normalvalue for this Ukrainian producer was based on domestic sales,any change to the cost would have a negligible impact, if any.
No adjustments were therefore made.
Export price
(62)Two companies in the Ukraine, whose export sales were made
on the basis of tolling agreements and therefore excluded fromthe dumping calculations, submitted that their export priceshould be constructed on the basis of the transformation fee
charged to their export customers plus the gas cost paid by them-
selves or another exporting producer in Ukraine, plus areasonable amount of profit.
(63)For one of the companies, as a consequence of non-cooperationof the associated supplier of gas, not only the prices of itsexports sales were not verifiable, but this company could not bequalified, on its own, as an exporting producer of urea (see
details in recitals 38 and 39). Consequently, no individual
dumping margin has been established for it.
(64)Regarding the other company, the methodology proposed is notin line with Article 2(9) of the Basic Regulation. The purpose ofthis Article is not to provide alternative methods to establishexport prices in cases of non cooperation, but instead to takeaccount of the participation in the export sales, of an importer
in the Community related or associated with the exporting
producer. The construction proposed by the Ukrainian compa-nies, contrary to what is established on Article 2(9) of the BasicRegulation, is not based on any price of sale to an independentparty. Instead it uses as a starting point a cost of manufacture (amethod used to construct normal values, not exporting prices).
The claim was therefore rejected.
(65)A third Ukrainian company, which also had all its export sales
made under tolling agreements, argued that rather than takingthe lowest export prices, the average export price of other Ukrai-nian exporting producers should have been used.
(66)However, there was no reason to believe that the average exportprice of other Ukrainian exporting producers was more accurate.It is the Community Institutions' practice, in cases of non-coop-
eration to use the weighted average export price of the
transactions with the lowest export prices, representing at thesame time a considerable quantity of the export quantities withverifiable prices.
Comparison
(67)Two Ukrainian companies and one Belarussian company
claimed that the Commission should provide them with basic
information to allow them to claim natural comparative advan-
tages.
(68)Since only one US company cooperated in the proceeding, nospecific evidence regarding production and sales' details of thiscompany could be disclosed without breaching the rules onconfidentiality. Other basic information (geographic location,access to raw materials, etc.) is publicly available. The Commu-2002R0092 — EN — 28.06.2002 — 001.001 — 10
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nity Institutions have analysed the available information and
have made, on their own initiative, the necessary adjustments. Itis re-called that an unusually high natural gas cost during the IP
in the USA was identified and consequently, an adjustment made
to the gas cost used for the cooperating USA company broughtthe gas cost down to a level comparable to the one of othercompanies cooperating in this same proceeding.
(69)Three Ukrainian companies and the Belarussian company
disagreed with the fact that the Commission made an adjustment
for inland transport to the export price based on railway tariffs inthe analogue country. It was argued that Ukrainian tariffs shouldbe used, or alternatively, Lithuanian tariffs.
(70)Railway tariffs in Ukraine and Belarus, countries which are not
yet operating under market economy conditions, are set by the
State and cannot, therefore, be considered to reflect normalmarket prices. It is a long established practice of the CommunityInstitutions to base adjustments for this type of inland transportfor countries under Article 2(7) of the Basic Regulation, on veri-
fied data from the analogue country, when available. It was also
specifically mentioned when granting MES to some of theUkrainian companies involved that certain cost factors could becorrected to bring them in line with normal market value. Nochange to the provisional findings is therefore warranted.
(71)It was also claimed that lower tariffs should be applied as Ukrai-nian exporting producers used own railway wagons with largeconsignments, including return of empty wagons.
(72)Information from the producer in the analogue country revealedthat an adjustment for the use of own wagons was warranted.The calculations were therefore revised accordingly.
(73)It was argued by the Ukranian and Belarussian companies thatthe adjustment made for physical differences between ‘granular’urea sold on the domestic market of the analogue country and‘prilled’ urea exported by these countries should have beenbased on price differences on the European market.
(74)However, since the aim is to determine a normal value forprilled urea on the analogue country market, the adjustmentmust be based on a price difference on that same market. Theadjustment made has thus been based on price differences onthe US market. To use the Community market does not appear
to be appropriate because the price difference on that market
will in all likelihood be influenced by dumping practices. Conse-quently, the claim was rejected.
(75)Two Ukrainian companies and the company in Belarus alsoclaimed an adjustment for level of trade as they were allegedly
selling only to traders.
(76)The exporting producers in the Ukraine and Belarus exported the
product concerned to traders. The cooperating producer in theanalogue country sold the product also to traders. Part of thedomestic sales of the analogue country producer were made to
blenders. A thorough analyses of functions and prices revealed
that the claim was not warranted.
3.Dumpingmarginforcompaniesinvestigated
Application of Article 18 of the Basic Regulation
(77)Subsequently to the imposition of provisional duties, the
Commission further examined whether the freight costs reported
by the Lithuanian exporting producer, but paid by the importers,
were accurate. It was found that these costs were overstatedwhen compared to information collected from importers andwith publicly available quotations for the same routes. Theamounts for freight costs have been revised accordingly and theactual costs have been used.2002R0092 — EN — 28.06.2002 — 001.001 — 11
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(78)Following the comments of the Estonian exporting producer
concerning the inappropriateness of an adjustment of the cif
value of the unreported sales used to express the dumpingmargin for these sales that was made at the provisional stage,the Commission analysed the issue in more detail and decidedto revise the methodology used. The adjustment made at theprovisional stage has been withdrawn. However, in the absence
of reliable information provided by the company, the Commis-
sion decided to base its findings on the information provided byEurostat, since it constitutes the most reliable data available.
(79)The Commission provisionally made an adjustment to the cifvalue of the Belarussian exporting producer used to calculate
the dumping margin. Since this adjustment was made erro-
neously, the adjustment was withdrawn.
Dumping margins
(80)The definitive dumping margins, expressed as a percentage of
the cif import price at Community border, are:
Belarus
All companies: 67,3 %
Bulgaria
— Chimco AD: 90,3 %
— Others: 90,3 %
Croatia
— Petrokemija d.d.: 72,9 %
— Others: 72,9 %
Estonia
— JSC Nitrofert 37,4 %
— Others: 37,4 %
Libya
— National Oil Corporation: 48,8 %
— Others: 48,8 %
Lithuania
— Joint Stock Company Achema, Jonava: 10,0 %
— Others: 10,0 %
Romania
— S.C. Amonil S.A., Slobozia 20,1 %
— Petrom S.A. Sucursala Doljchim Craiova,
Craiova 40,7 %
— Sofert S.A., Bacau 25,2 %— Others: 40,7 %
Ukraine
— Cherkassy Azot, Cherkassy 21,1 %
— Dnipro Azot, Dniprodzerzhinsk 66,3 %— Others: 82,1 %.2002R0092 — EN — 28.06.2002 — 001.001 — 12
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E.INJURY
1.DefinitionoftheCommunityindustry
(81)Several interested parties repeated their claim that those
Community producers which purchased and imported urea fromcountries covered by this proceeding, should be excluded from
the definition of the Community industry
(82)As outlined at recital 156 of the provisional Regulation, these
purchases were mainly small in volume and were made to coverproduction shortfalls due to maintenance works. The one
company that did make more substantial purchases, equal to
approximately 20 % of its own production in the IP, did so inorder to supplement its product range. The investigation showedthat this company is primarily a producer of urea, and not animporter, and that there are thus no good reasons for it to beexcluded from the definition of the Community industry. In any
case such exclusion would have no significant impact on the
findings of the case nor on the level of duties imposed.
(83)Accordingly the findings in recital 157 of the provisional Regu-lation are confirmed.
2.Communityconsumption
(84)In the absence of any new information, the findings concerning
Community consumption as outlined at recitals 158 and 159 ofthe provisional Regulation are confirmed.
3.Importsfromthecountriesconcerned
Cumulative assessment of the effects of the imports concerned
(85)It was claimed that imports of urea originating in Romania
should not be cumulated with imports from the other countriescovered by this proceeding. The claim was based on the groundsthat the import volumes and the market shares developed differ-
ently over the period considered.
(86)At recital 162 of the provisional Regulation, it was determined
that:
— imports from all the countries concerned were substantial and
well above the levels set out in Article 5(7) of the basicRegulation,
— the dumping margins found were all above the de minimis
level, and all exporting producers undercut the sales pricesof the Community industry,
— the prices of both imported and Community produced urea
fell significantly over the period considered.
(87)The volume of urea imports from Romania followed the trendfor the price of urea on the Community market i.e. there was a
certain relationship between prices and the volume of imports
from Romania over the period considered. In 1999 when priceswere at their lowest, there were almost no imports fromRomania. This is evidence of price transparency in the Commu-nity urea market. It also shows that Romanian exporters will
withdraw from a market when prices fall too far. Nevertheless,
with the partial recovery in prices between 1999 and the IP(recital 164 of the provisional Regulation), Romanian importsincreased substantially so that they held 2,3 % of market shareduring the IP. Of the countries concerned, Romania was thefourth largest exporter to the Community during the IP.
(88)Nor was this import trend specific to Romania. Imports fromseveral of the countries concerned also followed a remarkablysimilar pattern of falling imports between 1996 and 1999followed by a significant return to the Community market during2002R0092 — EN — 28.06.2002 — 001.001 — 13
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the IP. This is against a background of total import volumes
from the countries concerned rising year on year over the periodconsidered. The only change was in the share of those imports
between the countries concerned in line with prices. This is
further evidence of competition between imported products andis not a reason for de-cumulating the imports from Romania, orindeed any of the other countries concerned.
(89)For all of the reasons outlined above, it is concluded that thecriteria as set out in Article 3(4) of the basic Regulation havebeen met. The findings at recital 162 of the provisional Regula-tion are, therefore, confirmed.
Volume, market shares, and prices of the imports concerned
(90)In the absence of any new information on the volume and prices
of imports from the countries concerned, the provisional findingsare confirmed.
Undercutting
(91)For the provisional determinations, undercutting was calculated
by comparing the exporters' Community frontier, ex quay,
customs duty paid price level (DEQ) with the Community produ-cers' verified ex-works prices. The comparison was made at aprilled to prilled, granular to granular, bulk to bulk, and baggedto bagged level.
(92)A number of parties, including several of the exporting produ-cers, claimed that the Community producers' prices for theundercutting comparison should be the weighted average priceat the Community industry level and not the price at the indivi-dual producer level. It is claimed that such a methodology serves
to artificially inflate the margin by zeroing at the Community
producer level.
(93)It should first be noted that the undercutting or price comparisonexercise is an injury indicator which, under Article 3(3) of thebasic Regulation, aims to examine ‘whether there has been
significant price undercutting by the dumped imports as
compared with the price of a like product of the Communityindustry, or whether the effect of such imports is otherwise todepress prices to a significant degree’.
(94)It is true that not all imports from the countries concernedundercut the prices of each Community producer. However, asignificant volume of export sales were made at prices belowthose of the Community industry. It is also noted that theCommunity urea market is both highly transparent and sensitiveto price changes.
(95)Following further analysis it was found that, for the countriesconcerned, the proportion of imports, by company, whichundercut the Community industry's prices, varied from 0 % to56 %, with an overall average for all imports of 46 %. The levelof the undercutting ranged as high as 17 %. For this analysis, no
zeroing was used. Due to problems with cooperation from the
exporting producer in Belarus (recital 113 of the provisionalRegulation) and Estonia (recital 58 of the provisional Regula-tion), it was not possible to carry out this price comparison forthese companies. However, there are no reasons to suggest that
their results would have been any different.
(96)Furthermore, it should be noted that the Community industry
recorded losses during the IP (recital 175 of the provisionalRegulation), i.e. the prices of the Community industry weredepressed. Also for the one company with no undercutting,
underselling was still found.
(97)It is, therefore, definitively determined that there was both
significant price undercutting by the exporting producers in thecountries concerned, as well as a depression of prices on theCommunity market during the IP.2002R0092 — EN — 28.06.2002 — 001.001 — 14
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(98)A number of claims were made concerning the injury elimina-
tion calculations. These are addressed in detail in recitals 114
to 116 and 121 to 123. However, where adjustments weregranted, it is confirmed that these were also taken into accountfor the undercutting exercise.
4.SituationoftheCommunityindustry
(99)Following further verification of two Community producers,
some of the injury indicators changed in absolute terms.
However, these changes were not sufficient to materially affectthe trends of the injury indicators over the period considered orto alter the provisional conclusions. Based on the above, theprovisional findings of material injury suffered by the Commu-
nity industry are confirmed.
F.CAUSATION
(100)A number of interested parties re-iterated their claim that the
injury suffered by the Community industry was not caused bydumped imports but rather by the oversupply of urea on theworld market. This is linked to the claim made by some of the
parties that the injury suffered by the Community industry was a
result of their fall in export sales, which in turn affected theirsales on the Community market.
(101)In this respect, it should be noted that the assessment of thesituation of the Community industry was based on data relatingto sales of the product concerned on the Community market.Therefore, the potential negative effects of reduced export sales
are excluded in the above injury analysis.
(102)In addition, over the period considered, Community industry
export sales fell by 337,000 tonnes, whilst its sales on theCommunity market increased by 172,000 tonnes. Therefore,faced with difficult export conditions, the Community industrywas able to divert half of its lost export sales onto the Commu-
nity market.
(103)At the same time, Community consumption increased by 1,25
million tonnes, low priced dumped imports increased by867,000 tonnes (recital 163 of the provisional Regulation), andthe Community industry lost 10,3 % of the Community market(recital 173 of the provisional Regulation). Rather than beingthe cause, the inability of the Community industry to take advan-
tage of an expanding domestic market when export sales fell, is
evidence of the existence of injury caused by the dumpedimports.
(104)Accordingly, oversupply and loss of export sales could in factonly have had an effect on the Community industry (in termsof a limited loss of economies of scale) because the dumped
imports prevented it from taking full advantage of an expanding
Community market. Therefore, it is concluded that the effect ofthe fall in export sales by the Community industry, and thealleged oversupply, when they are examined separately, was notsufficient to break the causal link between the effect of thedumped imports and the material injury suffered by the Commu-
nity industry. The conclusions of recitals 197 and 198 of the
provisional Regulation are confirmed.
G.COMMUNITYINTEREST
1.Importers/traders
(105)Following publication of the provisional Regulation, no
comments were received from any of the cooperating importers.However, one association of importers maintained that the impo-sition of anti-dumping measures was against the interest ofimporters of urea and that for them a flourishing agriculturalsector is important.2002R0092 — EN — 28.06.2002 — 001.001 — 15
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(106)As stated at recital 206 of the provisional Regulation, there will
be a continuing need for imports. Even were the duties to be
passed on in full this would result in an increase of no morethan 0,6 % in farmers' costs at worst. Whilst such a rise mayresult in some changes in the way that farmers source theirurea, there is no evidence to call into question the conclusionsset out in recital 206 of the provisional Regulation.
2.Users
Farmers
(107)Following publication of the provisional Regulation, comments
were received from farmers' organisations in Austria, Italy, Spainand the UK. None of these parties challenged the provisionalconclusion that the duties would lead to a 0,6 %, worst casescenario, increase in farmers' costs. They did however, object to
the imposition of measures and to the conclusion that prise
increases would not be passed on in full.
(108)Following a verification at the premises of a farmers' coopera-tive, the conclusion of the cost implication of the proposed
measures is confirmed. That the impact of the measures will
not be passed on in full is based on experience from many otheranti-dumping proceedings. There is no evidence to suggest thatthis would not be case in this proceeding.
(109)Whilst the difficult situation faced by farmers is re-affirmed, it isnot possible to conclude that the impact of the duties would besuch as to make the imposition of measures against the interestof the Community.
Industrial users
(110)No written comments were received direct from any of the coop-
erating industrial users of urea. This suggests that the measureswould not have such an important impact on these users of urea.
(111)One industrial user, who also imports and sells urea, submitted
comments via an importers association. This company suggests
that the imposition of measures may force it to close its plantwith the loss of upto 380 jobs. However, as this claim was notmade directly by the company, and as it is not supported by anyevidence, the claim is rejected.
3.ConclusiononCommunityinterest
(112)In the absence of any new information regarding the Community
interest aspects, the conclusions of recital 219 of the provisionalRegulation, are confirmed.
H.DEFINITIVEANTI-DUMPINGMEASURES
1.Injuryeliminationlevel
(113)For the provisional determinations, underselling was calculated
by comparing the exporters' Community frontier, ex quay,
customs duty paid price level (DEQ) with the Community produ-
cers' verified ex-works target prices. The comparison was madeby company on a prilled to prilled, granular to granular, bulk tobulk, and bagged to bagged level.
(114)Many exporting producers claimed that the adjustment made forunloading costs to arrive at the DEQ price was insufficient. Itwas also claimed that an importers' (mainly traders) marginshould be included, in line with other recent fertiliser cases.
(115)Further evidence of actual unloading costs incurred has beenobtained from several sources, including the exporting producers,the Community industry, and independent importers. On thebasis of this information, the allowance for unloading costs hasbeen adjusted accordingly.2002R0092 — EN — 28.06.2002 — 001.001 — 16
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(116)The question of granting an adjustment for the importers' margin
was considered on the merits of this particular investigation. It
was found that exporting producers sold urea on the Communitymarket via a number of channels, including directly to the enduser. No evidence was provided that prices varied according tothe channel used. Rather, it was found that in general, the sellingprices did not depend upon the type of the customer. Nor were
any significant differences found between the sales channels
used by the Community industry and those used by the exportingproducers. Accordingly the request for an adjustment for animporters' margin was rejected.
(117)A number of parties, including the majority of the exportingproducers, claimed that the Community producers' prices for theunderselling calculation should be the weighted average price at
the Community industry level and not the price at the individual
producer level. It was claimed that such a methodology served toartificially inflate the margin by eliminating any negative under-selling at the Community producer level. In addition it wasclaimed that basing anti-dumping duties on a calculation metho-
dology which results in zeroing, contravenes a recent WTO
ruling(
1).
(118)It should be noted that the underselling calculation aims toexamine the actual extent of injury suffered by the Communityindustry caused by dumped imports. To show a true picture anyprice comparison should reflect economic reality. The investiga-tion showed that competition on the Community market takes
place between each individual exporting producer and each indi-
vidual producer which forms part of the Community industry. Inthis respect it is noted, inter alia , that there are significant price
spreads and important differences in the location of the Commu-nity producers. Thus, the extent of any injurious dumping caused
by an exporting producer to the Community industry should be
assessed on the actual market situation and on the basis ofspecific data verified for each company.
(119)Comparing prices company by company results in a preciseevaluation of the full impact of any injurious dumping sufferedby the Community industry, and does not artificially inflate thelevel of underselling in the current case. Accordingly the claim
is rejected.
(120)The Community industry claimed that some of the urea imported
into the Community was in fact a ‘fat’ prill, which should betreated as a separate type of urea. It was further claimed that,for the underselling calculation, this type should be comparedto the price of Community produced ‘fat’ prill.
(121)It was found that large diameter or ‘fat’ prills were indeedproduced by the Community industry as well as being exported
to the Community from some of the countries concerned.
However the only difference to standard prills is in their largerdiameter. Nor is there is any evidence to suggest that the costof production is any higher or that ‘fat’ prills were sold at apremium during the IP. Accordingly, it is concluded that thereare no reasons why ‘fat’ prills should be considered as a separate
product type.
(122)Some exporting producers repeated their claim for an adjustment
for quality of their product. However, no supporting evidencewas provided. Nor was any market perception of qualityproblems with Romanian urea found. The claim is thereforerejected.
(123)It should be noted that for calculating the non-injurious price atthe provisional stage, a profit margin of 8 % on cost was used2002R0092 — EN — 28.06.2002 — 001.001 — 17
(1) European Communities — Anti-Dumping Duties on Imports of Cotton-Type
Bed Linen from India — AB-2000-13 — Report of the Appellate Body
1.3.2001.
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and not 8 % on turnover as stated at recital 222 of the provi-
sional Regulation. Certain cooperating parties argued that theprofit margin should be limited to 5 %, as was the case in
previous anti-dumping proceedings concerning nitrate fertilisers
as well as in the proceeding concerning urea from Russia(
1).
For its part, the Community industry re-stated its claim that aprofit margin of 15 % return on capital employed (ROCE) wouldbe more appropriate.
(124)It is confirmed that the determination of the relevant profitmargin in this proceeding is based on an assessment of the profitmargin that the Community industry could reasonably havecounted upon under normal conditions of competition, in the
absence of dumped imports. It is therefore based on an assess-
ment of the facts in this case and not on the assessment of thefacts in other proceedings concerning other products and/or otherinvestigation periods.
(125)For the reasons stated at recital 223 of the provisional Regula-tion, the claim that profitability be based on ROCE is rejected.
(126)Given the above, and in the absence of any evidence that thedetermination of an 8 % profit margin is incorrect, the conclu-
sions of recitals 221 to 227 of the provisional Regulation are
confirmed.
(127)Finally, information received and data verified following publi-cation of the provisional Regulation, including verifiedinformation from two further Community producers, was also
incorporated into the calculations, where appropriate.
2.Levelandformoftheduties
(128)In light of the foregoing, it is considered that, in accordance with
Article 9(4) of the Basic Regulation, definitive anti-dumpingduties should be imposed at the level of the injury margins ordumping margins found, on imports of urea originating in
Belarus, Bulgaria, Croatia, Estonia, Libya, Lithuania, Romania
and the Ukraine, whichever are the lower.
(129)As regards the residual duty to be applied to the non cooperatingexporting producers, the residual duty was fixed on the basis of
the highest duty rate established for the cooperating exporters in
each country.
(130)One exporting producer claimed that, in order to be consistentwith a previous proceeding, the duties should take the form of a
minimum import price, as is the case for urea from Russia.
(131)However, as stated at recital 231 of the provisional Regulation,
in order to ensure the efficiency of the measures and to discou-rage the price manipulation which has been observed in some
previous proceedings involving the same general category of
product, i.e. fertilisers, definitive duties should take the form ofa specific amount per tonne. The claim is, therefore, rejected.
(132)On the basis of the above, the definitive duty amounts are as
follows:
Country CompanyBasis for AD duty
(%)Definitive duty
(Euro per tonne)
Belarus Single country-wide margin 8,0 7,81
Bulgaria Chimco AD 24,2 21,43
Others 24,2 21,432002R0092 — EN — 28.06.2002 — 001.001 — 18
(1) Council Regulation (EC) No 901/2001 of 7 May 2001 imposing a definitive
anti-dumping duty on imports of urea originating in Russia (OJ L 127,
9.5.2001, p. 11).
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Country CompanyBasis for AD duty
(%)Definitive duty
(Euro per tonne)
Croatia Petrokemija d.d. 9,4 9,01
Others 9,4 9,01
Estonia JSC Nitrofert 11,4 11,45
Others 11,4 11,45
Libya National Oil Corporation 12,5 11,55
Others 12,5 11,55
Lithuania Joint Stock Company Achema 10,0 10,05
Others 10,0 10,05
Romania S.C. Amonil S.A., Slobozia 6,7 7,20
Petrom S.A. Sucursala Doljchim Craiova,
Craiova5,7 6,18
Sofert S.A., Bacau 7,6 8,01
Others 7,6 8,01
Ukraine Open Joint Stock Company Cherkassy
Azot, Cherkassy18,7 16,27
Joint Stock Company DniproAzot,
Dniprodzerzinsk9,2 8,85
Others 19,5 16,84
(133)The individual company anti-dumping duty rates specified in this
Regulation were established on the basis of findings of thepresent investigation. Therefore, they reflect the situation foundduring that investigation with respect to these companies. These
duty rates (as opposed to the country-wide duty applicable to ‘all
other companies’) are thus exclusively applicable to imports ofproduct originating in the country concerned and produced bythe companies and thus by the specific legal entities mentioned.Imported product produced by any other company not specifi-
cally mentioned in the operative part of this Regulation with its
name and address, including entities related to those specificallymentioned, cannot benefit from these rates and shall be subjectto the duty rate applicable to ‘all other companies’.
(134)Any claim requesting the application of these individualcompany anti-dumping duty rates (e.g. following a change inthe name of the entity or following the setting upof new p roduc-tion or sales entities) should be addressed to the Commission(
1)
forthwith with all relevant information, in particular any modifi-
cation in the company's activities linked to production, domestic
and export sales associated with e.g. that name change or thatchange in the production and sales entities. The Commission, ifappropriate, will, after consultation of the Advisory Committee,amend the Regulation accordingly by updating the list of compa-nies benefiting from individual duty rates.2002R0092 — EN — 28.06.2002 — 001.001 — 19
(1) Commission of the European Communities
Directorate-General Trade
TERV 00/13
Rue de la Loi/Wetstraat 200
B-1049 Brussels.
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3.Collection ofprovisionalduties
(135)In view of the magnitude of the dumping margins found and in
the light of the injury caused to the Community industry, it isconsidered necessary that the amounts secured by way of the
provisional anti-dumping duty, imposed by the provisional Regu-
lation, should be definitively collected at the rate of the dutydefinitively imposed. Where the definitive duties are higherthan the provisional duties, only the amounts secured at the levelof the provisional duties should be definitively collected.
4.Undertakings
(136)Subsequent to the imposition of provisional measures, exporting
producers in Belarus, Croatia, Libya, Romania and the Ukraine
offered price undertakings in accordance with Article 8(1) ofthe Basic Regulation. The exporting producers in Estonia andLithuania renewed their undertaking offers, already made atprovisional stage, but which had been rejected for the reasonsset out in recital 236 and 237 of the provisional Regulation.
(137)It is recalled that the Commission had already accepted anundertaking from the Bulgarian exporting producer at the provi-
sional stage of this proceeding (see recital 236 of the provisional
Regulation). As mentioned in recital 128, the incorporation ofnew data in the definitive injury margin calculation had animpact on the injury elimination level found. The minimumprice of the undertaking was therefore adapted accordingly.
(138)Subsequent to the disclosure of the provisional findings, thecomplainant Community industry objected to the Commission's
decision to accept an undertaking from the Bulgarian exporting
producer. In this respect, it was argued that the companyconcerned was related — or had close technical and industrialrelations — to other exporters and/or producers of nitrogen ferti-lisers including urea, located in Bulgaria, Belarus and theUkraine which would constitute a strong potential for compensa-
tory arrangements. Furthermore, the Community industry raised
concerns regarding the ability of this exporting producer to fulfilthe obligations of an undertaking.
(139)On a more general basis, the Community industry claimed thatundertakings, and thus minimum prices, would be an inap-propriate measure with regard to nitrogen fertilisers includingurea.
(140)It should be noted that the Community industry could notsupport the allegations made with regard to the exporting
producer in Bulgaria by sufficient evidence. Furthermore, the
investigation of the Commission did not confirm these allega-tions and they had therefore to be rejected. As far as theappropriateness of the undertaking is concerned it should benoted that such assessment should primarily focus on the
company specific situation. Thus, it was found that the company
concerned produces and exports only urea and that an effectivemonitoring of the undertaking is most likely in this case.
(141)In any case, in the event of suspected breach, breach or with-drawal of the undertaking an anti-dumping duty may beimposed, pursuant to Article 8(9) and (10) of the Basic Regula-tion.
(142)All other undertaking offers received were also analysed indetail. Two main obstacles to the acceptability of these under-
taking offers resulted from this examination:
(143)The exporting producers concerned in Lithuania, Romania,Croatia, Ukraine and Libya are producers of different types of
fertilisers and/or other chemical products and have consistentlyin the past exported these products to common customers(mostly traders) in the Community. This practice raises a seriousrisk of cross-compensation i.e. that any undertaking prices wouldbe formally respected but that prices for products not concerned2002R0092 — EN — 28.06.2002 — 001.001 — 20
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would be lowered. All this would render the commitment to
respect a minimum price for urea easy to circumvent and extre-mely difficult to monitor effectively.
(144)Furthermore, certain producers (vg: Estonia, Ukraine, Belarus)
claimed that they had no control over, or even knowledge of
the destination and/or sales conditions of their exports of urea,while it was clear from official statistics that the product wasexported to the Community in large quantities during the inves-tigation period. It is recalled that given that these companies did
not provide sufficient information in this respect, the Commis-
sion had no option but to make use of facts available inaccordance with Article 18 of the Basic Regulation to establishexport prices. In addition, certain exporters (Libya, Estonia)provided overall a deficient level of cooperation during theinvestigation. It was considered that these facts render the risk
of accepting an undertaking unreasonably high and the guaran-
tees to assure a proper monitoring unsatisfactory.
(145)For the reasons set out above, it was therefore concluded thatnone of the undertakings offered subsequent to the disclosure ofthe definitive findings should be accepted.
(146)The interested parties were informed accordingly and the reasonswhy the undertaking offered could not be accepted disclosed indetail to the exporters concerned. The Advisory Committee has
been consulted,
HAS ADOPTED THIS REGULATION:
Article 1
1. A definitive anti-dumping duty is hereby imposed on imports of
urea, whether or not in aqueous solution, falling within CN codes3102 10 10 and 310210 90 originating in Belarus, Bulgaria, Croatia,
Estonia, Libya, Lithuania, Romania and the Ukraine.
2. The rate of the definitive anti-dumping duty, applicable, before
duty, to the net, free-at-Community frontier price of the productdescribed in paragraph 1 above, shall be as follows:
Country of origin Produced byDefinitive anti-
dumping duty
(euro per ton)TARIC additional
code
Belarus All companies 7,81 —
Bulgaria All companies 21,43 A999Croatia All companies 9,01 —Estonia All companies 11,45 —Libya All companies 11,55 —
Lithuania All companies 10,05 A999Romania S.C. Amonil SA, Slobozia 7,20 A264
Petrom SA Sucursala Doljchim Craiova,
Craiova6,18 A265
Sofert SA, Bacau 8,01 A266
All other companies 8,01 A9992002R0092 — EN — 28.06.2002 — 001.001 — 21
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Country of origin Produced byDefinitive anti-
dumping duty
(euro per ton)TARIC additional
code
Ukraine Open Joint Stock Company Cherkassy
Azot, Cherkassy16,27 A268
Joint Stock Company DniproAzot,
Dniprodzerzinsk8,85 A269
All other companies 16,84 A999
3. In cases where goods have been damaged before entry into free
circulation and, therefore, the price actually paid or payable is appor-tioned for the determination of the customs value pursuant to Article
145 of Commission Regulation (EEC) No 2454/93 of 22 July 1993
laying down provisions for the implementation of Council Regulation(EEC) No 2913/92 establishing the Community Customs Code(
1) the
amount of anti-dumping duty, calculated on the basis of paragraph 2above, shall be reduced by a percentage which corresponds to the
apportioning of the price actually paid or payable.
4. Unless otherwise specified, the provisions in force concerning
customs duties shall apply.
Article 2
1. Imports shall be exempt from the anti-dumping duties imposed by
Article 1 provided that they are produced and directly exported (i.e.
shipped and invoiced) to the first independent customer in the Commu-nity acting as an importer by the company named below which hasoffered undertakings accepted by the Commission, when such importsare in conformity with paragraph 2.
Country CompanyTARIC addi-
tional code
Bulgaria Chimco AD, Shose az Mezdra, 3037 Vratza A272
Lithuania Joint Stock Company Achema, Taurostos 26, 5005 Jonava A375
2. (a) When the declaration for release for free circulation pursuant to
an undertaking is presented, exemption from the duty shall be
conditional upon presentation of a valid commercial invoice,
issued by the company listed in paragraph 1, to the MemberStates customs authorities.
(b) The undertaking invoice shall conform with the requirements for
such invoices set out in the undertaking accepted by theCommission, the essential elements of which are listed in the
Annex.
(c) Exemption from the duty shall further be conditional on the
goods presented to customs corresponding precisely to thedescription on the commercial invoice.
3. Imports accompanied by such an undertaking invoice shall be
declared under the TARIC additional code provided in paragraph 1.
Article 3
The amounts secured by way of the provisional anti- dumping duty
imposed pursuant to Regulation (EC) No 1497/2001 shall be defini-2002R0092 — EN — 28.06.2002 — 001.001 — 22
(1) OJ L 253, 11.10.1993, p. 1. Regulation as last amended by Commission
Regulation (EC) No 993/2001 (OJ L 141, 28.5.2001, p. 1).▼M1
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tively collected at the rate of the duties definitively imposed on imports
of urea, whether or not in aqueous solution, falling within CN codes3102 10 10 and 310210 90 originating in Belarus, Bulgaria, Croatia,
Estonia, Libya, Lithuania, Romania and the Ukraine.
The amounts secured in excess of the definitive rate of anti-dumping
duties shall be released. In cases where the rate of definitive dutyimposed is higher than the rate of the provisional duty, only amountssecured at the level of the provisional duty shall be definitively
collected.
Article 4
This Regulation shall enter into force on the day following that of its
publication in the Official Journal of the European Communities .
This Regulation shall be binding in its entirety and directly applicable
in all Member States.2002R0092 — EN — 28.06.2002 — 001.001 — 23
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ANNEX
The following elements shall be indicated in the commercial invoice accompa-
nying the Company's sales of urea to the Community which are subject to the
Undertaking:
1. The heading ‘COMMERCIAL INVOICE ACCOMPANYING GOODS
SUBJECT TO AN UNDERTAKING’
2. The name of the company mentioned in Article 2(1) issuing the commercial
invoice
3. The commercial invoice number4. The date of issue of the commercial invoice
5. The TARIC additional code under which the goods on the invoice are to be
customs cleared at the Community frontier
6. The exact description of the goods, including:
— the Product Code Number (PCN)
— the description of the goods corresponding to the PCN (i.e. ‘PCN 1 urea
in bulk’, ‘PCN 2 urea, bagged’)
— the company product code number (CPC) (if applicable)— CN-code— quantity (to be given in tonnes)
7. The description of the terms of sale, including:
— price per tonne
— the applicable payment terms— the applicable delivery terms— total discounts and rebates
8. Name of the company acting as an importer to which the invoice is issued
directly by the company
9. The name of the official of the company that has issued the undertaking
invoice and the following signed declaration:
‘I, the undersigned, certify that the sale for direct export by [company name]
to the European Community of the goods covered by this invoice is being
made within the scope and under the terms of the Undertaking offered by
[company name], and accepted by the Commission of the European Commu-
nities through [Regulation (EC) No 1497/2001]. I declare that the
information provided in this invoice is complete and correct.’2002R0092 — EN — 28.06.2002 — 001.001 — 24