2001R0900 — EN — 18.10.2002 — 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)No900/2001
of7May2001
imposing definitive anti-dumping duties on imports of urea ammonium nitrate solutions origi-
natinginPoland
(OJ L 127, 9.5.2001, p. 1)
Amended by:
Official Journal
No page date
►M1Council Regulation (EC) No 1841/2002 of 14 October 2002 L 279 3 17.10.2002
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COUNCILREGULATION(EC)No900/2001
of7May2001
imposingdefinitive anti-dumpingdutieson importsofurea ammo-
niumnitratesolutionsoriginatinginPoland
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(1), and in particular Articles
11(2) and 11(3) thereof,
Having regard to the proposal submitted by the Commission, after
consulting the Advisory Committee,
Whereas:
A.PREVIOUSINVESTIGATION
(1)By Regulation (EC) No 3319/94(2), the Council imposed a defi-
nitive anti-dumping duty on imports of urea ammonium nitratesolutions (‘UAN’) originating in Bulgaria and Poland. Themeasures applying to imports from Bulgaria consisted of aspecific duty, except for one producer and one exporter from
whom a joint undertaking was accepted by Commission Deci-
sion 94/825/EC(
3). Polish imports of UAN were made subject
to a variable duty based on a minimum import price whendirectly invoiced by certain companies to an unrelated importer.In all other cases, imports of UAN from Poland were subject to
a specific duty.
B.INVESTIGATIONSCONCERNINGOTHERCOUNTRIES
(2)By Regulation (EC) No 1995/2000(4), the Council imposed defi-
nitive anti-dumping duties on imports of UAN originating inAlgeria, Belarus, Lithuania, Russia, and Ukraine. It was estab-
lished that the imports of UAN originating in these other
countries were dumped and had caused material injury to theCommunity industry. It was considered appropriate to imposeduties in the form of a specific amount per tonne, in order toensure the efficiency of the measures and to discourage any
price manipulation.
C.PRESENTINVESTIGATION
(3)Following the publication, in June 1999(5), of a notice of the
impending expiry of the anti-dumping measures in force, theCommission received a request for an expiry review lodged by
the European Fertiliser Manufacturers Association (EFMA) on
behalf of a major proportion of Community producers of UAN(‘applicant Community producers’). The request alleged thatinjurious dumping of imports originating in Poland would belikely to recur if measures expired. The applicant Communityproducers did not request the initiation of an expiry review
concerning imports originating in Bulgaria on the grounds that
such recurrence was not likely for Bulgarian imports. Conse-quently the measures applicable to imports originating inBulgaria expired on 1 January 2000.
(4)Having determined, after consultation of the AdvisoryCommittee, that sufficient evidence existed for the initiation of2001R0900 — EN — 18.10.2002 — 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 350, 31.12.1994, p. 20.
(3) OJ L 350, 31.12.1994, p. 115.
(4) OJ L 238, 22.9.2000, p. 15.
(5) OJ C 176, 22.6.1999, p. 14.
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a review, the Commission initiated an investigation pursuant to
Article 11(2) of Regulation (EC) No 384/96 (the ‘basic Regula-tion’).
(5)At the same time, likewise after consultation of the AdvisoryCommittee, the Commission initiated an ex officio interim
review pursuant to Article 11(3) of the basic Regulation, limited
to the form of the measures in force with respect to the importsoriginating in Poland(
1). The Commission initiated this interim
review in order to allow for a possible adaptation of the type ofmeasures for Poland, in the event of the measures against Polish
imports being maintained, taking into account the need to ensure
the effectiveness of the measures and the form of measureswhich might eventually be imposed on imports of the sameproduct originating in other countries.
(6)The investigation into the continuation and/or recurrence ofdumping and injury covered the period from 1 January 1999 to30 November 1999 (‘IP’). The examination of the trends rele-vant for the assessment of a likelihood of a continuation and/or
recurrence of injury covered the period from 1 January 1995 up
to the end of the IP (‘period under review’).
(7)The Commission officially advised the applicant Communityproducers, the exporter and exporting producers in Poland,importers/traders, their representative associations, associationsof users known to be concerned, and the representatives of thePolish Government of the initiation of the review. The Commis-sion sent questionnaires to all these parties and to those who
made themselves known within the time limit set in the notice
of initiation. The Commission also gave the parties directlyconcerned the opportunity to make their views known in writingand to request a hearing.
(8)The following Community producers replied to the question-naire:
(a) Agrolinz Melamin GmbH, ADM — Linz, Austria
(b) DSM Agro BV — Sittard, Netherlands
(c) Fertiberia S.A — Madrid, Spain
(d) Grande Paroisse SA — Paris, France
(e) Hydro Agri Chafers — Immingham, United Kingdom
(f) Hydro Agri France — Nanterre, France
(g) Hydro Agri Rostock — Rostock, Germany
(h) Hydro Agri Sluiskil BV — Sluiskil, Netherlands
(i) Kemira Agro Rozenburg B.V. — Rotterdam, Netherlands
(j) SKW Stickstoffwerke Piesteritz GmbH — Wittenberg,
Germany
(9)In view of the fact that the information provided by these sameCommunity producers was duly verified in the framework of the
proceeding referred to in recital 2 concerning imports of UANoriginating in Algeria, Belarus, Lithuania, Russia and Ukraine,for which the investigation covered the years 1995 to 1998 aswell as five months of the present IP, it was considered appro-priate, in the current proceeding, not to carry out additional
verification visits at the premises of the companies in question.
However, the accuracy of the data provided was verified byexamining their coherence and consistency with the previouslyverified data.
(10)The Commission sent out questionnaires to 20 unrelated impor-ters/traders and to one association of importers. Nine answerswere received including that from the association. None of theseimporters provided any specific figures since they did not import2001R0900 — EN — 18.10.2002 — 001.001 — 3
(1) OJ C 369, 21.12.1999, p. 22.
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UAN from Poland during the period under review and accord-
ingly no verification visit was carried out.
(11)Following the receipt of a questionnaire reply, verification visitswere also carried out at the premises of the following compa-
nies:
(a) Zaklady Azotowe ‘Pulawy’ SA, Pulawy (‘ZAP’), an
exporting producer
(b) CIECH SA, Warsaw, an exporter
D.PRODUCTUNDERCONSIDERATIONANDLIKEPRODUCT
(12)The product under consideration in this proceeding is urea
ammonium nitrate solution, falling within CN code 3102 8000.It is the same as in the original investigation, i.e. a liquid ferti-
liser commonly used in agriculture. It consists of a mixture of
urea and ammonium nitrate in water. The water content isapproximately 70 % of the mixture (depending on the nitrogencontent), the remaining part consisting equally of urea andammonium nitrate. The nitrogen (N) content is the most signifi-
cant element of the product, and it can vary between 28 % and
32 %.
(13)As the previous investigation has shown, UAN is a purecommodity product, having the same basic physical andchemical characteristics whatever the country of origin. There-fore UAN produced and sold in the Community by theapplicant Community producers and UAN produced in Polandand sold domestically or exported to the Community are consid-
ered to be like products, within the meaning of Article 1(4) of
the basic Regulation.
E.LIKELIHOODOFARECURRENCEOFDUMPING
1.Preliminary remark
(14)Under Article 11(2) of the basic Regulation, the purpose of this
type of review is to determine whether or not the expiry of the
measures would be likely to lead to a continuation or recurrence
of dumping. Since there were no imports of the product underconsideration from Poland to the Community during the IP, theanalysis focused on whether the removal of the measures wouldbe likely to lead to a recurrence of dumping in significantvolumes. In this respect, the pricing behaviour of Polish produ-
cers on third country markets was examined in order to
determine whether the product under consideration was soldthere at dumped prices. It has been further assessed whether,should the measures be repealed, the Polish producers would belikely to resume exporting UAN to the Community following the
same pricing behaviour.
(15)It is recalled that, in the original investigation, the individualdumping margins found for the two producers amounted to
40 % and 27 % respectively. The investigation did not revealthe existence of any Polish UAN producers other than the twoaforementioned producers.
(16)One company did not provide any detailed information on salesto other countries, domestic sales or cost of production, and wasaccordingly informed that the findings would be established on
the basis of the facts available, in accordance with Article 18 of
the basic Regulation, if the information was not submitted withina set time limit. No information was submitted subsequently bythat company. It should be noted that, on the basis of informa-tion available, that company had a much smaller productioncapacity than the cooperating one.2001R0900 — EN — 18.10.2002 — 001.001 — 4
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2.Exportstothirdcountries
(a)Export price
(17)Exports by the cooperating producer were made directly to inde-
pendent importers in other countries, mainly to the North
American market which accounted for a high proportion (two
thirds) of the company's total exports in the IP, and a smallerproportion (one third) to the Czech Republic. Polish exports tothe USA and Canada accounted for a not insignificant part ofcombined total imports by these two countries, and representeda significant proportion of the producer's output.
(18)In view of the nature of this investigation, it was considered thatit would be unreasonable to request, for the purpose of a likeli-
hood of recurrence of dumping test, detailed information on
exports for the whole IP. Instead, information was requested onall transactions covering the last three month period included inthe IP. The export price was therefore determined on the basis ofthe prices paid or payable by unrelated importers in third coun-
tries during the said three month period. The cooperating
producer challenged this approach at a later stage in the proce-dure and requested that data concerning the whole IP be used.In view of the lateness of the suggestion, it was not consideredpracticable to alter the basis of the analysis. Furthermore, even ifunverified data for previous months were to be taken into
account, the picture would not change so significantly as to alter
the conclusions found regarding exports to third countries fromPoland.
(b)Normal value
(19)For the cooperating producer, it was first determined that the
total volume of domestic sales of UAN was representative inrelation to export sales. Indeed, the sales volume on the Polish
domestic market was higher than the sales volume exported to
third countries. It was then determined whether these domesticsales had been made in the ordinary course of trade. In thisregard, the investigation showed that the volume of sales aboveunit production cost represented more than 10 % but less than80 % of all sales. Therefore normal value was established on
the basis of the prices actually paid for all profitable sales of
the product under consideration.
(c)Conclusion on exports to third countries
(20)For the cooperating producer, the normal value was compared
with the export price for each country of destination on aweighted average to weighted average basis, after making certainadjustments to ensure a fair comparison.
(21)It was found that the export prices charged by the cooperatingproducer (which accounted for 90 % of total Polish exports in
the IP) to the North American market were substantially below
the normal value established for it, resulting in significantdumping margins in respect of its sales to both the USA andCanada. The export sales to these two countries accounted fortwo thirds of total export sales of this company. With regard tosales to the Czech Republic, a neighbouring market which
accounted for the remaining one third of the company's total
exports, little or no dumping was found. Indeed, the companyadopted the same price strategy as for its domestic market.
(22)Since the other producer failed to provide detailed information,no calculations were made. It should be noted that this produceronly exported to the Czech Republic, in relatively low volumes.
3.Potential forariseindumpedexportstotheCommunity
(23)The investigation established that Polish companies have the
capacity to produce significant additional volumes for export to2001R0900 — EN — 18.10.2002 — 001.001 — 5
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the Community. These additional volumes could well reach the
significant levels found for the IP of the original investigation.Moreover, these exports would in all likelihood be made at
dumped prices.
(a)Cooperating exporting producer
(24)Given the cooperating producer's relatively low level of capacity
utilisation in the IP, there is room for a considerable increase inproduction. There is also a real possibility of shifting productionfrom ammonium nitrate to UAN, given the fact that the addi-tional equipment required for producing UAN would notinvolve any major investment.
(25)Should the measures be repealed, the Community market mightbecome more attractive for Polish producers than the North
American market. As a matter of fact, the investigation showed
that, during the IP, UAN prices on the North American marketwere slightly lower than prices on the Community market. More-over, this latter market is considered more attractive by Polishexporting producers due to its geographical proximity, which
entails cheaper transport costs. Thus, for the same selling price
charged on the North American market, Polish exporting produ-cers could achieve a higher margin on the Community market.Indeed, if the same or a slightly lower selling price were to becharged to Community customers, such a price would still bedumped, despite the lower transport costs. Moreover, in view of
the cooperating producer's low capacity utilisation rate, it has
every economic interest in selling at even lower prices as longas its variable costs are covered and as long as there is no riskof endangering the prices charged to the US. It should berecalled that the Community market used to be Poland's major
export market for UAN before the imposition of anti-dumping
duties. Moreover, even when measures were in force, in parti-cular during 1996 when the Community market price wasabove the minimum import price imposed by the measures,approximately 50 % of Polish production was exported to theCommunity.
(26)In addition, following the imposition of anti-dumping measureson imports of UAN originating in Algeria, Belarus, Lithuania,
Russia and Ukraine, there will be greater opportunities for other
producers/exporters to regain market share.
(27)The cooperating exporting producer argued, on the basis of salesprojections, that in the future it would no longer be in a positionto export UAN to the Community market. The reasons for thiswere (i) the expected significant increase in its domestic salesof ammonium nitrate, limiting the availability of ammoniumnitrate for the production of UAN, and (ii) the growing domestic
market for UAN.
(28)Even though the investigation confirmed that domestic sales ofammonium nitrate had indeed significantly increased between
1998 and 1999, this increase started from relatively low levelsbecause domestic consumption decreased by 15 % between1996 and 1998. It is expected that these domestic sales willremain at the 1999 level or increase only slightly in the future.This has even been confirmed by the Polish cooperating produ-
cer's own sales figures for the first eight months of the year
2000. It seems, therefore, that the large increase in domesticsales between 1998 and 1999 should be considered exceptional.
(29)As far as the development of domestic sales of UAN isconcerned, it is clear from the Polish cooperating producer'ssales figures for the first eight months of the year 2000 in factincreased far less than forecast.
(30)Furthermore, it has been found that a considerable volume ofUAN was again exported to the Community in the year 2000.Indeed, in the period from January to October 2000, total exports2001R0900 — EN — 18.10.2002 — 001.001 — 6
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of UAN from Poland to the Community amounted to 5 % of
Community consumption in the IP.
(b)Non-cooperating producer
(31)The second Polish exporting producer was found to have
exported a significant volume to the Community in 1996 whilethe Community market price was temporarily above the
minimum import price. During the previous investigation, it
was found that this producer had a significant production capa-city and there is no indication that this has changed. From thisit can be concluded that the company is potentially a significantexporter to the Community should anti-dumping measures berepealed. In the absence of cooperation from this producer, it
was concluded that its pricing behaviour concerning any future
exports to the Community would not significantly differ fromthat adopted by the other producer and from its own behaviourduring the original investigation.
(c)Conclusion on potential exports to the Community
(32)Given the above it can be concluded that the Polish exporting
producers clearly have the capacity to export large quantities ofUAN at dumped prices.
(33)The Community market used to be Poland's major export marketfor UAN. Even when measures were in force, in particularduring 1996 when the Community market price was above theminimum import price, approximately 50 % of production was
exported to the Community. Should the measures be repealed,
this market is likely to become once again an attractive outletfor Polish producers.
4.Conclusiononthelikelihoodofarecurrence ofdumping
(34)Polish exporting producers have the capacity to increase signifi-
cantly their production volume of UAN because of theirsubstantial unused production capacity.
(35)Any future increase in domestic consumption will not be suffi-cient to absorb these possible additional volumes, which willtherefore most likely be exported. This conclusion is reinforcedby the fact that, during the period from the beginning of 1995until the end of the year 1998, Polish producers exported in
general a high percentage of their production (more than 80 %
on average).
(36)In the event of the measures being repealed, it is likely that mostPolish exports of UAN would be directed to the Communitymarket due to its geographical proximity and consequent cheapertransport costs. In addition, the imposition of anti-dumpingmeasures on imports of UAN originating in five other thirdcountries might provide a further incentive to increase exports
to the Community, all the more so because the Community
market used to be Poland's major export market for UAN beforethe imposition of anti-dumping duties.
(37)The Polish exporting producer's current apparent dumping prac-tices on the North American market, the price level prevailingon the Polish market and the price level prevailing on theCommunity market indicate that, should Polish exports resume,there is a strong likelihood that imports in the Community would
also be dumped.
(38)It is therefore concluded that there is a likelihood of recurrence
of dumping, should the measures be repealed.
F.DEFINITIONOFTHECOMMUNITYINDUSTRY
(39)The Community producers which replied to the questionnaire
represented more than 85 % of the Community production ofUAN during the IP and therefore constitute the Community2001R0900 — EN — 18.10.2002 — 001.001 — 7
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industry within the meaning of Article 4(1) and Article 5(4) of
the basic Regulation.
G.THESITUATIONOFTHECOMMUNITYMARKET
1.Communityconsumption
(40)The apparent Community consumption was established on the
basis of the sales volumes of the Community industry on theCommunity market, the information contained in the complaint
concerning the remaining Community producers, the information
provided by the cooperating Polish exporting producer and Euro-stat figures. Volumes have been, where appropriate, adapted soas to correspond to UAN solutions with a nitrogen content of32 %.
(41)On this basis, Community consumption decreased between 1995and 1997, from 3 155000 to 2 882000 tonnes. Afterwards, itsignificantly increased and reached the level of 3 413 000 tonnes
during the IP. This increase was especially marked between
1998 and the IP (+15 %). Over the whole period under review,the Community consumption increased by 8,2 %.
2.Evolutionofimports
(a)Import volumes
(42)Total imports of UAN in the Community followed a downward
trend during the first three years of the period under review,from 1 565000 tonnes in 1995 to 990000 tonnes in 1997, andthen increased to 1 482 000 tonnes during the IP. Over the whole
period under review, total imports decreased by around 5 %.
(43)With respect to the volume of the Polish imports, it drastically
decreased over the period under review, in particular as from
1997, from 360 000 tonnes in 1995 to nil during the IP. The
investigation established that the trend of the Polish importswas the result of the combination of the anti-dumping measuresimposed at the end of 1994 and of the evolution of the averageCommunity market price of UAN, as explained below. It shouldbe recalled that before the imposition of the measures, the Polish
imports of UAN reached the level of around 520000 tonnes in
1992 and around 405000 tonnes in 1993, representing at thattime around 50 % of all imports.
(44)In this context, as confirmed by Regulation (EC) No 1995/2000,certain third countries have benefited from the imposition ofanti-dumping duties on Polish imports. Their export volume tothe Community increased from 869000 tonnes in 1995 to1 393000 tonnes during the IP.
(45)As to the other third countries' import volumes, they stronglydecreased over the period under review, representing around
21 % of total imports in 1995, compared to 6 % during the IP.
(b)Price evolution of the imports
(46)After the imposition of anti-dumping measures against imports
of UAN originating in Poland and Bulgaria, prices recovered
until 1996. Thereafter, imports from the five countries concerned
by Regulation (EC) No 1995/2000 exerted a downward pricepressure on the Community market. In order to face this situa-tion the Community industry had no choice but follow thedecreasing prices in order to keep its market share. The Polish
exporting producers were not in a position to follow the
Community market price as soon as it fell below the level ofthe minimum import price to which their imports had beensubject since the imposition of the anti-dumping measures. As aconsequence, Polish producers have withdrawn from theCommunity market since 1998.2001R0900 — EN — 18.10.2002 — 001.001 — 8
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3.EconomicsituationoftheCommunityindustry
(a)Production
(47)The Community industry's production of UAN increased by
10,4 % between 1995 and the IP, i.e. from 1 484000 tonnes to1 639000 tonnes. The most significant increase took placebetween 1996 and 1997, after the introduction of anti-dumpingmeasures on imports of UAN originating in Poland and Bulgaria.
(b)Capacity and capacity utilisation rates
(48)The total production capacity of the Community industry was
relatively stable over the period under review. Capacity utilisa-tion increased from 38 % in 1995 to 43 % in 1997 andsubsequently fell back to 41 % during the IP.
(49)It should however be noted that the production capacity installedcan be used for the production of different fertilisers which canbe sold either individually or mixed together, as is the case forthe production of UAN. The absolute level of capacity utilisationrate as well as its development is accordingly also affected by
the development of other fertilisers.
(c)Sales in the Community
(50)During the period under review, the sales volume of the
Community industry followed an increasing trend, which washowever temporarily interrupted between 1997 and 1998. Thistrend should be analysed in the light of the overall market devel-
opment. As a matter of fact, the decrease of the Community
industry's sales volume between 1997 and 1998 took placewhen the overall market was stable, thus resulting in loss ofmarket shares. The increasing volume between 1998 and the IP,however, followed the market trend. Despite the increasing trend
of the sales volume, the position of the Community industry in
the market has overall deteriorated since 1997. The Communityindustry was not able to take advantage of the increase inconsumption because of the pressure of the five countriesconcerned by Regulation (EC) No 1995/2000.
(d)Stocks
(51)The level of stocks is not considered to be a valid injury indi-
cator owing to the seasonal nature of the sales and the fact thatUAN is partly stored by the producers themselves and partly bythe cooperatives of farmers, i.e. the users of the product intoconsideration.
(e)Market share
(52)After a gain of 15 percentage points between 1995 and 1997,
from 45,8 % to 60,7 %, when the measures were taking effect,the Community industry's market share fell, between 1997 andthe IP, by 8,4 percentage points.
(f)Sales prices of the Community industry
(53)The Community producers' average net sales price decreased
from EUR 111,3 in 1995 to EUR 78,3 during the IP. Asexplained in recital (46), the fall was particularly markedbetween 1996 and the IP, i. e. – 32,2 %.
(g)Profitability
(54)The weighted average profitability of the Community industry
deteriorated by 15,2 percentage points between 1995 and the IPfrom + 4,9 % to − 10,3 %. After having reached a peak in 1996(+ 6,2 %), it deteriorated by 16,5 percentage points between thatyear and the IP. This evolution should be seen in the light of theprice development experienced by the Community industry2001R0900 — EN — 18.10.2002 — 001.001 — 9
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during the same period. The investigation showed that the
Community industry's sales price increased between 1995 and1996, whilst it afterwards started to decrease mainly because of
the price pressure exerted by imports from the five countries
concerned by Regulation (EC) No 1995/2000. It should berecalled that, during the IP of the initial investigation (i.e. April1992 to March 1993), the Community industry incurred losses ofmore than 5 %.
(55)The return on investments broadly followed the profitabilitycurve during the period under review. The decreasing trend waseven more marked due to the joint effect of the decreasing prof-
itability and increasing net investments resulting from new
acquisitions, as described below. It should be noted that bothdirect investments and a portion of investments indirectly relatedto the production of the product concerned have been consid-ered.
(h)Cash flow
(56)The cash flow generated by the Community industry in relation
to sales of UAN also followed the profitability curve.
(i)Ability to raise capital
(57)Due to the structure of the complainant companies, i.e. the fact
that the fertiliser producers are a part of large chemical groupsalso dealing with other products, it was not possible to establish
the ability to raise capital for the product under consideration
only, and it was therefore considered as not being a meaningfulindicator to measure any injury.
(j)Employment and wages
(58)Employment in the Community industry, while increasing
between 1995 and 1996, from 330 to 339 employees, decreasedthereafter and reached the level of 322 employees in the IP, adecrease of 5 %.
(59)With respect to overall wages, they followed a similar decline ascompared to the decrease of the number of persons employed.
(k)Upstream investment
(60)The most important investments of the Community industry
during the period under review took place during the years1996 to 1998, and were related to the production facilities forurea and nitric acid, which are both raw materials used for the
production of UAN solutions, but are also used for other
purposes such as the production of solid ammonium nitrate andsolid urea, for which a more positive outlook existed ascompared to UAN. Direct investments related only to the laststep of the production process, i.e. the mixing of ammonium
nitrate and urea, represent a minor fraction of the figures shown
above. Those direct investments remained at a relatively stablelevel during the period under review.
4.ConclusionontheanalysisofthesituationoftheCommu-
nitymarket
(61)The introduction of the minimum import price on Polish importshad in a first stage a positive impact on the Community industry,which could recover from its weakened economic situation.However, starting from the year 1997, and as confirmed by
Regulation (EC) No 1995/2000, Algeria, Belarus, Lithuania,
Russia and Ukraine largely contributed to a general price depres-sion on the Community market by decreasing their average salesprice by around 35 % between 1996 and 1997. By doing so, theywere able to expand their export volume to the Community,were rapidly in a position to take over the Polish market shares,2001R0900 — EN — 18.10.2002 — 001.001 — 10
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and consequently caused a significant deterioration of the
economic situation of the Community industry.
H.LIKELIHOOD OF CONTINUATION AND/OR RECURRENCE
OFINJURY
(62)In order to assess the likely effect of the expiry of the measures
in force, the following elements were considered:
(a) As explained under recitals 23 to 31:
— there are clear indications that the Polish producers have
the potential to raise their production and exportvolumes,
— should the measures lapse, it is likely that these addi-
tional volumes will be shipped to the Community market,
— on the basis of the export prices established in respect of
exports to North America, it is likely that, in the absenceof measures, the Polish exporting producers would adopta policy of dumped prices. These low prices, whichwould be charged also in order to regain their lost market
shares, are likely to further injure the Community
industry. The possibility for the Polish exporting produ-cers to lower their prices is confirmed by their exportprice behaviour on third countries markets, namely NorthAmerica.
(b) Such a price behaviour of Polish exporting producers,
coupled with their ability to deliver significant quantities ofUAN, would in all likelihood have a general price-depres-
sing impact on what is a very price-sensitive commodity
market. This in turn would lead to a recurrence of injury interms of decreasing sales prices of the Community industry,its sales volumes and market shares as well as the conse-quent impact in terms of profitability. In this context, it is
recalled that imports from Algeria, Belarus, Lithuania,
Russia and Ukraine recently followed the very same pricingand volume patterns and these imports had similar effects onthe Community industry as those outlined above.
(c) The Community industry is still in a difficult situation
having regard in particular to its profitability. Indeed,although the situation of the Community industry, following
the imposition of the measures under consideration, mark-
edly improved in the first two years of application of themeasures, it deteriorated again, in particular as from 1997,due to the injurious dumping from other countries' imports,as established in Regulation (EC) No 1995/2000. In thisregard, should the measures against Poland be repealed, not
only would the situation of the Community industry again be
put at a risk, but also the benefit which the Communityindustry should derive from the measures imposed againstthese other countries could be weakened or even nullified.
(63)On the basis of the above, it is concluded that, should themeasures be repealed, there is a likelihood of recurrence of
injury.
I.COMMUNITYINTEREST
1.Preliminary remark
(64)In accordance with Article 21 of the basic Regulation, it was
examined whether a prolongation of the existing anti-dumping
measures would be against the interest of the Community as a
whole. The determination of the Community interest was basedon an appreciation of all the various interests involved, i. e.those of the Community industry, the importers/traders as wellas the users of the product under consideration.
(65)It should be recalled that, in the previous investigation, the adop-tion of measures was considered not to be against the interest of2001R0900 — EN — 18.10.2002 — 001.001 — 11
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the Community. Furthermore, the fact that the present investiga-
tion is a review, thus analysing a situation in which anti-dumping measures have already been in place, would allow the
assessment of any undue negative impact on the parties
concerned by the current anti-dumping measures.
(66)On this basis it was examined whether, despite the conclusionson the likelihood of a recurrence of injurious dumping, compel-
ling reasons existed which would lead to the conclusion that it is
not in the Community interest to maintain measures in this parti-cular case.
2.InterestoftheCommunityindustry
(67)The Community industry has proven to be a structurally viable
industry, able to adapt to the changing conditions on the market.
This was confirmed in particular by the positive development of
its situation at a time when effective competition had beenrestored after the imposition of anti-dumping measures onimports originating in Poland and Bulgaria and by the industry'sinvestment in state of the art production capacity. These positiveeffects however lasted only for a short period since, as from
1997, dumped imports originating in certain third countries,
other than Poland caused a strong price pressure on the Commu-nity market resulting in a new degradation of the economicsituation of the Community industry. This degradation was suchthat the Community industry had to restructure its activity and
close down significant nitrate capacity during the year 2000,
thus reducing jobs.
(68)It can reasonably be expected that the Community industry willbenefit from the measures imposed by Regulation (EC) No 1995/
2000 provided that no other source of injurious dumping would
undermine them. As outlined above, since there is a likelihoodof a recurrence of injurious dumping from Poland, it would bein the interest of the Community industry to maintain the anti-dumping measures on imports of UAN originating in Poland
3.Interestofunrelatedimporters/traders
(69)The Commission sent out questionnaires to 20 unrelated impor-
ters/traders and to one association of importers. Nine answers
were received including that from the association.
(70)The investigation established that none of these importers/tradershad imported any UAN from Poland during the IP. They claimed
this was due to the fact that, during this period, the average
Community sales price for UAN was below the minimum importprice applicable to imports of Polish UAN. It should, however,be noted that the anti-dumping measures imposed in 1994 onthe imports of UAN originating in Poland had in fact no signifi-cant impact on importers/traders. As shown by both the current
and the previous investigations, firstly, importers/traders do in
general not only deal with UAN but also with other fertilisersand, secondly, UAN was available from numerous differentcountries of origin. This is due to the characteristics of theproduct under consideration, which is, as explained above, a
commodity product and identical whatever the country of origin.
4.Interestofusers
(71)The users of the product under consideration are farmers. The
Commission sent out questionnaires to European associations ofusers. No replies were received.
(72)It is to be noted that fertilisers represent a small part of totalproduction costs of farmers, as set out in Regulation (EC) No1995/2000. Moreover, the lack of cooperation in itself appearsto confirm that this sector did not suffer any substantial negativeeffect on its economic situation as a result of the measurescurrently in force.2001R0900 — EN — 18.10.2002 — 001.001 — 12
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(73)In conclusion, it is unlikely that the possible impact on farmers
would offset the positive effect on the Community industry of
the measures against recurrent injurious dumping.
5.ConclusiononCommunityinterest
(74)Given the above reasons, it is concluded that there are no
compelling reasons against the prolongation of the anti-dumping
measures.
J.FORMOFTHEMEASURES
(75)As stated in the notice of initiation, the interim review was
initiated by the Commission in order to allow a possible adapta-
tion of the form of measures for Poland, taking into account thetreatment of exports of UAN from certain third countries to theCommunity which were then subject to another anti-dumpingproceeding.
(76)Regulation (EC) No 1995/2000 concluded that it was appropriate
to impose definitive duties in the form of a specific amount per
tonne. The basis for imposing such a form of measures was toensure the efficiency of the measures and to discourage the pricemanipulation which has been observed in some previousproceedings involving the same general category of product, i. e.
fertilisers.
(77)Like the producers in those other cases, the Polish UAN produ-
cers are integrated, producing a variety of different fertilisers. Inaddition, different fertilisers are sold to a considerable degree viaidentical distributors. This opens possibilities through whichprices for different products can be compensated without this
being easy to detect for customs authorities. For these reasons,
it is considered that the form of measures applicable to importsof UAN originating in Poland should be changed to a specificamount per tonne, in line with the measures imposed on othercountries by virtue of Regulation (EC) No 1995/2000.
(78)One Polish exporting producer contested the proposed change of
the form of measures arguing that there was no legal basis for
this change and that the minimum import price was effective inrestoring fair conditions of competition on the Communitymarket.
(79)In this respect it should be recalled that the interim review
regarding the form of the measures has been initiated ex officio
by the Commission, after consultation of the AdvisoryCommittee, pursuant to Article 11(3) of the basic Regulation.As explained above, the Commission initiated the review inorder to allow for the possibility of changing the form of themeasures applicable to Poland to take account of any measures
subsequently imposed on other countries concerning the same
product.
(80)In addition to the possibility of compensation referred to inrecital 77, the investigation showed that the minimum importprice proved ineffective, as the product concerned may be
subject to price fluctuations. Depending on the average Commu-
nity market price, the minimum import price could either beinefficient or have the effect of excluding Polish exports fromthe Community market. The imposition of anti-dumping dutiesin the form of a specific duty in this instance, should thereforeensure that the measures are both effective and efficient in elim-
inating the effects of injurious dumping. Moreover, in other
recent fertilisers proceedings it was found that the most appro-priate form of measures for this kind of product is a specificamount per tonne.
(81)The amount of duty in EUR per tonne, as established by theprevious investigation, is given below:2001R0900 — EN — 18.10.2002 — 001.001 — 13
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Amount of duty
(EUR per tonne)
Zaklady Azotowe Pulawy SA 19
All other compagnies 22,
HAS ADOPTED THIS REGULATION:
Article 1
1. A definitive anti-dumping duty is hereby imposed on imports of
urea ammonium nitrate solution originating in Poland and fallingwithin CN code 3102 80 00.
2. The amount of the applicable duty per tonne of product shall be
as shown below for the products manufactured by the following
companies:
Country CompanyAmount of duty
(EUR per tonne)TARIC additional
code
Poland Zaklady Azotowe Pulawy SA
Al. Tysiaclecia P.P. 13,
24-110 Pulawy
Poland0 8795
Other companies 22 8900
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(1), the amount of
anti-dumping duty, calculated on the basis of the amounts set above,shall be reduced by a percentage which corresponds to the apportioningof the price actually paid or payable.
Article 2
Unless otherwise specified, the provisions in force concerning customs
duties shall apply.
Article 3
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.2001R0900 — EN — 18.10.2002 — 001.001 — 14
(1) OJ L 253, 11.10.1993, p. 1. Regulation as last amended by Regulation (EC)
No 2787/2000 (OJ L 330, 27.12.2000, p. 1).▼M1
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