2002R0092—EN—20.01.2002—000.001—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
(OJL17,19.1.2002,p.1)
Correctedby:
►C1Corrigendum,OJL176,5.7.2002,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
THECOUNCILOFTHEEUROPEANUNION,
HavingregardtotheTreatyestablishingtheEuropeanCommunity,
HavingregardtoCouncilRegulation(EC)No384/96of22December
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
consultingtheAdvisoryCommittee,
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 31021010and 31021090, and originating in Belarus, Bulgaria, Croatia,Estonia,Libya,Lithuania,RomaniaandtheUkraine.
(2)In the same Regulation it was decided to terminate theproceeding as regards imports of urea originating in Egypt andPoland.
B.SUBSEQUENTPROCEDURE
(3)Subsequenttothedisclosureoftheessentialfactsandconsidera-
tionsonthebasisofwhichitwasdecidedtoimposeprovisionalmeasures on imports of urea from Belarus, Bulgaria, Croatia,Estonia, Libya, Lithuania, Romania and the Ukraine, severalinterested parties submitted comments in writing. The parties,
whichsorequestedwerealsograntedanopportunitytobeheard
orally.
(4)TheCommissioncontinued toseekandverifyallinformation itdeemednecessaryforitsdefinitivefindings.
(5)Additionalverificationvisitswerecarriedoutatthepremisesofthefollowing:
Communityproducers
— Fertiberia,Madrid.
— HydroAgriFrance,Paris.
UsersintheCommunity
— LiberaAssociazioneAgricoltoriCremonesi,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 alsogranted a period within which they could make
representationssubsequenttothisdisclosure.
(7)The oral and written comments submitted by the parties were
considered and, where appropriate, the provisional findingshavebeenmodifiedaccordingly.2002R0092—EN—20.01.2002—000.001—2
(1) OJ L 56, 6. 3. 1996, p. 1. Regulation as last amended by Regulation (EC)
No2238/2000,OJL257,11.10.2000,p.2.
(2) OJL197,21.7.2001,p.4.
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C.PRODUCTUNDERCONSIDERATIONANDLIKEPRODUCT
(8)In the absence of any comments, the definition of the product
underconsideration andthelike productasdescribedatrecitals
9to12oftheprovisionalRegulationareconfirmed.
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 doesnot accurately describe the level ofcooperationprovided.ItclaimedthattheCommissionwasaware
and implicitly accepted the fact that the overall company
accounts covering all activities of the group would 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)Asfarasthelevelofcooperationisconcerned,theCommissionhas 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 itspositionanddidnotsubmitsubstantial information necessaryto
reconcileinparticular domesticsalesandthecostofproduction
of the product concerned. Under these circumstances, and inordertodeterminethenormalvalueforthecompanyconcerned,theInstitutionshadnochoicebuttomakeuseoffactsavailable,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
absenceofpublicly audited accountswasthereasonfortheuseoffactsavailableinthedeterminationofthenormalvalue.
(11)This is also confirmed by the fact that the reported data wereusedwheneveritwaspossibletoreasonablyverifyandreconcile
itwiththecompany'sinternalaccounts,inparticularwhenestab-
lishing the export price of the Libyan exporting producer (seerecital67to72oftheprovisionalRegulation).
(12)The same exporting producer claimed that its normal valueshouldhavebeenestablishedonthebasisoftheactualdomestic
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. Itarguedthat,forthispurpose,allnecessaryevidenceandinforma-tion related to the production and sales of urea on the Libyandomesticmarketwasprovided.
(13)Thecompanyfailedconsistently tosubmitessential 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 pointedoutbythe Commissionindeficiency letters andon-spot.Itwas
thereforenotpossibletoestablishthecompleteness andcorrect-
nessofthedomesticsalesreported,norofthecostofproductionsubmitted. Consequently, as far as the submission of evidenceand information related to the production and sales of urea ontheLibyandomesticmarketisconcerned,thefindingsofrecital64and65oftheprovisionalRegulationareconfirmed.2002R0092—EN—20.01.2002—000.001—3
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(14)Asmentioned inrecital 66oftheprovisional Regulation, inthe
absence of any other reliable information normal value for the
exporting producer in Libya had to be established on the basisofthe data submitted inthe complaint inaccordance Article 18oftheBasicRegulation.
(15)Thesameexportingproducerclaimedthat,inanycase,theprofitmarginusedinthecomplaintinordertoconstructnormalvaluewas overestimated. It argued in support of its claim that profit
marginsintheureabusinessaretraditionallylow.
(16)On the basis of the findings regarding other cooperatingexporting producers inthisproceeding,the Commission consid-
ereditappropriate toreviewthelevel oftheprofitmarginusedfor 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
concernedontheirdomesticmarkets,inaccordancewithArticle
2(6)(c) of the Basic Regulation, has been used to construct thenormal value of those exporting producers for which the profitmargincouldnotbeestablishedinaccordance withthechapeauof 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 moreappropriateinformation,itwasdecidedtoapplyatthedefinitivestagethissameprofitmargintotheLibyanproducerinordertoestablishnormalvalue.
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 methodologyhasbeenusedattheprovisionalstageforallexportingproducerinRomania.
(19)After imposition of the provisional anti-dumping duties, thisapproachwashoweverre-analysed.Theinvestigationhasshown
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 thenormalvalueatthedefinitive stageforeachexportingproducer
in Romania on the basis of the average price paid on thedomesticmarketduringtheinvestigationperiod.
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’shouldhave been used.Itwasargued 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
policiesofthecompaniesconcerned.
(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)oftheBasicRegulation.Thus,profitmarginswereestab-2002R0092—EN—20.01.2002—000.001—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 samegeneralcategoryofproductsproducedandsoldbytheexporting
producer concerned on the domestic market in the case of
Lithuania; andinthecaseofBulgaria andEstoniaonanyotherreasonablebasis,i.e.onthebasisoftheweightedaverageprofitmargin found for the other cooperating exporting producers inthisproceeding.
(23)Howevertheleveloftheprofitmarginwhichwasestablishedinaccordance with Article 2(6)(c) of the Basic Regulation on thebasis of the weighted average profit margins of cooperating
exportingproducerswithprofitabledomesticsaleswasre-exam-
ined. Further to the termination of the proceeding as regardsimports of urea originating in Egypt, exporting producers fromEgypt were excluded fromthe calculation of the average profitmargin.
(24)FollowingthecommentsoftheEstonianexportingproducertheprofitmarginusedforthereconstructionofitsnormalvaluewasreassessed. 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 thesamegeneral category astheproductconcerned (i.e.fertilisers).Thus,intheabsenceofsufficientsalesintheordinarycourseoftrade, 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 toArticle2(6)(c)oftheBasicRegulation.Inthisregard,theprofitmarginhasbeenbasedontheweightedaverageprofitmarginof
the other cooperating exporting producers concerned (as for the
Bulgarianexportingproducer,seerecital22above).
(25)TheLithuanianexportingproducerhasarguedagainsttheuseof
selling, general and administrative costs (SG&A) and profit of
ammoniumnitrate(AN)inconstructingnormalvalue.Itclaimedthat urea and ammonium nitrate are different fertilisers, sold indifferent markets and in different competitive situations, andwith differences in manufacturing technology, market demand,sellingpricesandcosts.
(26)SincethereisonlyoneproducerofureainLithuania,andintheabsence of representative domestic sales, Article 2(6)(b) of the
BasicRegulationisapossibilityforthedeterminationofSG&A
and profit. Also, urea and AN are both nitrogen fertilisers and,even if differences in production technology exist to someextent,theydobelongtothesamegeneralcategoryofproducts,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
decidedtomaintaintheprovisionaldetermination.
Export price
(27)Intheabsenceofanycommentsbytheinterestedparties,orany
other findings which could devaluate the provisional findings,
theexportpricesoftheexportingproducersconcernedasestab-lishedprovisionallyareherebyconfirmed.
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-tionerrorwhichwascorrectedaccordingly.2002R0092—EN—20.01.2002—000.001—5
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2.Non-marketeconomycountries
(29)Theexporting producerfromBelarus contested thefact 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 todepriveitofitsrightsasacooperating partyandnamelyoftheopportunitytoofferanundertaking.
(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
figuresprovidedbyEurostat.
(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 righttoreceivedisclosure,tobeheardandtopresentwrittensubmis-
sions, to consult non confidential files and the opportunity to
offeranundertaking.
Market economy status (‘MES’)
(32)Asoutlined in recital 118 to 130 of the provisional Regulation,
inaccordancewithArticle2(7)(b)oftheBasicRegulation,threecompaniesintheUkrainefiledapplicationsthatmarketeconomyconditions prevail in respect of the manufacture and sale of thelikeproductconcerned(‘marketeconomystatus’or‘MES’).Itis
recalled that two Ukrainian companies received MES. One
Ukrainian exporting producer, which was refused MES,disagreedwiththeCommission'sfindingsonpossibleStateinter-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 andthat there-fore, on a general basis, no MES should have been granted. Inparticular,itarguedthattheUkrainianfertilisermarketwaschar-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
withamarketeconomysituation.
(34)TheseargumentsbytheexportingproducersandtheCommunityindustry 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. Asfarasthe State interference intransport costsisconcerned, thiswastakenintoaccountbyusingthetransportratesapplicablein
the analogue country. Concerning energy and electricity costs,
no evidence was found that these costs were significantlydistortedbyStateinterferenceandthattheydidnotsubstantiallyreflect market value. Furthermore, compared with natural gas,thecostofenergyandelectricityisnotamajorinputofurea.
Individual treatment
(35)The Community industry objected to the decision to grant indi-
vidual treatment to one of the Ukrainian exporting producersarguingthattheshareholdingoftheStateinthecompanywould
allowsignificantStateinterference.
(36)However,nonewinformationorevidencewassubmittedbythe
complainant Communityindustryshowingthatthealleged Stateinterference would permit circumvention of the measuresimposed and the claim had thus to be rejected. The findings of2002R0092—EN—20.01.2002—000.001—6
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the provisional Regulation (recital 132) are consequently
confirmed.
Sales under tolling agreements
(37)Asdescribedinrecitals133to135oftheprovisionalRegulation
three companies in the Ukraine were involved in tolling agree-ments. It is recalled that, under Ukrainian law, the provider oftherawmaterialsremainstheownerofthefinishedproduct,the
company doing the transformation does not acquire property
rightsoverthegoods.
(38)Theinvestigationrevealedthatoneofthecompanieswhichwas
granted MEScould notbeconsidered, onits own,anexporting
producer of the product concerned. This company had estab-lished a long-termbusiness relationship with another com panybasedinathirdcountry.Accordingtothisrelationship,thelattercompanywasvirtuallythesolesupplierundertollingagreements(and owner throughout the production process) of the main raw
material.Thiscompanywasalsoactivelyinvolvedontheexport
salesoftheproductconcerned.Thesefactsclearlyindicatedthattherelationshipbetweenthesecompanieswentbeyondtheusualbuyer-sellerrelationship.
(39)In the absence of any cooperation fromthe associated gassupplier, neither the full cost of manufacturing nor the pricepaid or payable on export sales could be established, let aloneverified.Itshouldalsobenotedthatalthoughcertaininformationonexportpricestothefirstindependentbuyerwasavailable,this
informationwasnotverifiableandcouldthereforenotbeusedto
establishadumpingmargin.Sincewithoutthecooperationoftheassociatedsupplier(andlegalownerofboththemainrawmate-rial and the finished product), neither the normal value nor theexportpriceoftheUkrainiancompanyconcerned couldbereli-
ablyestablished.Therefore,anindividualdumpingmargincould
notbeestablishedforthiscompany.
(40)Another Ukrainian company, which was neither granted MES
norindividualtreatment,realisedallitsexportsalesundertolling
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 oftheassessmentofthecountry-widedumpingmargin.
(41)Finally, a third company has done part of its domestic andexport sales under tolling agreements. Likewise, in the absenceofcooperationfromitssuppliers,andintheabsenceofverifiable
pricestothefirstindependentbuyer,theCommunityInstitutions
hadnooptionbuttodisregardallsalesmadeundersuchtollingagreements. 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 thebasisoftollingandwhosegassuppliersequallyrefusedtocoop-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
whendeterminingnormalvalueorexportprice.
(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 couldnotbeverifiedandcouldnot,therefore,beaccepted.2002R0092—EN—20.01.2002—000.001—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 whichwasgrantedMESshouldhavebeenusedinstead.
(45)ItistheCommunityinstitutions'consistentpractice,inlinewithArticle 2(7)(b) of the Basic Regulation, to determine normal
valueonthebasisofparagraphs1to6ofArticle2oftheBasic
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 orconstructedvalueinamarketeconomythirdcountry,oronany
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 wellasanimporterassociationobjectedtothechoiceoftheUSAas
ananalogue country claiming that Lithuania wasa more appro-
priatemarketeconomythirdcountry.
(47)These parties alleged that the USA was not an appropriatechoice because of its high gas costs which would lead todistortedureaprices,itsdifferentlevelofeconomicdevelopmentcomparedtoBelarusandtheUkraine,anddifferencesinmarketsize.ThefactthatonlyoneproducerintheUSAcooperatedwas
alsoseenasanargument nottouseUSAasamarket economy
thirdcountry.ItwasfurtherarguedthatLithuania wasthemostappropriateanaloguecountry.Itwasclaimedthatthevolumeofurea 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 bythe parties, as Lithuania and other
countries with one producer of the product concerned have
already been used in previous investigations of productsbelongingtothesamecategory.
(48)The Community institutions have examined all the above argu-mentsindetailandcametothefollowingconclusions:
(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-
dumpingdutiesexistintheUSAonimportsofureafromformerSoviet Union countries, there were substantial imports (morethan1million tons)ofureafromanumberofotherthirdcoun-tries. Although the further investigation revealed that there arenoimportdutiesapplicableinLithuaniatoimportsofurea,those
importsremainneverthelessataverylowlevel.TheUSAhasa
vast urea market (more than 10 million tons per year), whereasthe Lithuanian urea market is practically non-existing. Thus,salesofureaduringtheinvestigationperiod(‘IP’)ontheLithua-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-nianexportstotheCommunity.2002R0092—EN—20.01.2002—000.001—8
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(50)ThefactthatonlyoneUSproducercooperatedinthisinvestiga-
tion does not render the above conclusions invalid. In fact, the
prices of this producer, which were used to establish normalvaluearesubjecttotheabove-described competition. Thequan-titiessoldbythisproduceralonewereevenrepresentativewhencompared to the total quantities exported from Belarus andUkrainetotheCommunity.
(51)Regarding the similarity in access to natural gas, the main rawmaterial used for the production of urea, an analysis of thesuppliestothe ureaproducerswasalsomade. Itwasconfirmedthat 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
alternativesuppliers.Inaddition,similartoUkraine,theUSAis
bothaproducerandanimporterofnatural gas,whileLithuaniahasnoownnaturalgasresources.
(52)TheCommissionhasalsocomparedproductionprocessesintheUSAand Belarus and the Ukraine and concluded that the tech-
nology used by the American producer was at least as efficient
astheoneusedbytheBelarusandUkrainianproducers.
(53)ItwasalsoarguedthatLithuaniashouldbeusedastheanaloguecountrysinceitwassubjecttothesameinvestigation.
(54)TheCommissionnotesthatArticle2(7)oftheBasicRegulationstipulates that, where appropriate, a market economy country
which is subject to the same investigation shall be used.
However,forthereasonsoutlinedinrecitals49to51,Lithuaniacould not be considered as an appropriate analogue country inthisinvestigation.
(55)Asalreadystatedinrecital107oftheprovisionalRegulation,anadjustment wasmade to the high natural gascost during the IP
intheUSA.Thehighnaturalgascostwastheresultofamarket
situation specific to the USA during the IP. This adjustmentbrought the gas cost down to a level comparable to the one ofothercompaniescooperatinginthissameproceeding.
(56)TheCommunityindustrysupportedthechoiceoftheUSAasananalogue 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 onlyinthesecondhalfoftheyear2000,i.e.aftertheIP,itwasfoundthat during the second half of the IP there was already anunusual and specific increase in the cost of natural gas. The
adjustmentmadewasthereforeconsideredjustified.
(57)For all the above reasons, it is concluded that the USA is an
appropriate analogue market economy country andwasselectedin a not unreasonable manner. A normal value based on thedomesticsalesintheUSAmadeintheordinarycourseoftrade,
which includes a reasonable and not excessive profit margin, is
thereforefullyinlinewiththerequirementsofArticle2(7)(a)oftheBasicRegulation.
(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 shouldbeusedasabasisforthedetermination ofitsnormalvalue.Asalternatives, the company proposed the Commission to use thenormalvalueofanUkrainianexportingproducertowhichMESwas granted or to construct normal value on the basis of the
company'sowndata.
(59)Asaconsequence ofnon-cooperation bytheassociatedsupplier
ofgas,it wasconcluded that thisUkrainian company could notbe qualified, on its own, as an exporting producer of urea (seedetails in recitals 38 and 39). Consequently, no normal valuewasestablished.2002R0092—EN—20.01.2002—000.001—9
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(60)Asannouncedinrecital 138oftheprovisionaldutyRegulation,
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 onitsowndata,werenecessary.
(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,thesedifferencescouldhavebeencausedbynumerousfactors and were in any event not suchas 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.
Noadjustmentswerethereforemade.
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
chargedtotheirexportcustomersplusthegascostpaidbythem-
selves or another exporting producer in Ukraine, plus areasonableamountofprofit.
(63)Foroneofthecompanies, asaconsequence ofnon-cooperationof the associated supplier of gas, not only the prices of itsexportssaleswerenotverifiable,butthiscompanycouldnotbequalified, on its own, as an exporting producer of urea (see
details in recitals 38 and 39). Consequently, no individual
dumpingmarginhasbeenestablishedforit.
(64)Regarding the other company, the methodology proposed is notinlinewithArticle2(9)oftheBasicRegulation.Thepurposeofthis 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,contrarytowhatisestablishedonArticle2(9)oftheBasicRegulation, is notbased onany price of sale to an independentparty.Insteaditusesasastartingpointacostofmanufacture(amethod used to construct normal values, not exporting prices).
Theclaimwasthereforerejected.
(65)A third Ukrainian company, which also had all its export sales
made under tolling agreements, argued that rather than takingthelowestexportprices,theaverageexportpriceofotherUkrai-nianexportingproducersshouldhavebeenused.
(66)However,therewasnoreasontobelievethattheaverageexportpriceofotherUkrainianexportingproducerswasmoreaccurate.ItistheCommunity Institutions'practice, incasesofnon-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 withverifiableprices.
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,accesstorawmaterials,etc.)ispubliclyavailable.TheCommu-2002R0092—EN—20.01.2002—000.001—10
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nity Institutions have analysed the available information and
havemade,ontheirowninitiative,thenecessaryadjustments.Itisre-calledthatanunusuallyhighnaturalgascostduringtheIP
intheUSAwasidentifiedandconsequently,anadjustmentmade
to the gas cost used for the cooperating USAcompany broughtthe gas cost down to a level comparable to the one of othercompaniescooperatinginthissameproceeding.
(69)Three Ukrainian companies and the Belarussian company
disagreedwiththefactthattheCommissionmadeanadjustment
forinlandtransporttotheexportpricebasedonrailwaytariffsintheanaloguecountry.ItwasarguedthatUkrainiantariffsshouldbeused,oralternatively,Lithuaniantariffs.
(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 normalmarketprices.ItisalongestablishedpracticeoftheCommunityInstitutions to base adjustments for this type of inland transportforcountriesunderArticle2(7)oftheBasicRegulation,onveri-
fieddatafromtheanaloguecountry,whenavailable.Itwasalso
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. Nochangetotheprovisionalfindingsisthereforewarranted.
(71)ItwasalsoclaimedthatlowertariffsshouldbeappliedasUkrai-nian exporting producers used own railway wagons with largeconsignments,includingreturnofemptywagons.
(72)Information fromtheproducerintheanalogue countryrevealedthat an adjustment for the use of own wagons was warranted.Thecalculationswerethereforerevisedaccordingly.
(73)It was argued by the Ukranian and Belarussian companies thattheadjustmentmadeforphysicaldifferencesbetween‘granular’urea sold on the domestic market of the analogue country and‘prilled’ urea exported by these countries should have beenbasedonpricedifferencesontheEuropeanmarket.
(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
willinalllikelihoodbeinfluencedbydumpingpractices.Conse-quently,theclaimwasrejected.
(75)Two Ukrainian companies and the company in Belarus alsoclaimed an adjustment for level of trade as they were allegedly
sellingonlytotraders.
(76)TheexportingproducersintheUkraineandBelarusexportedthe
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
thattheclaimwasnotwarranted.
3.Dumpingmarginforcompaniesinvestigated
Application of Article 18 of the Basic Regulation
(77)Subsequently to the imposition of provisional duties, the
Commissionfurtherexaminedwhetherthefreightcostsreported
bytheLithuanianexportingproducer,butpaidbytheimporters,
were accurate. It was found that these costs were overstatedwhen compared to information collected from importers andwith publicly available quotations for the same routes. Theamountsforfreightcostshavebeenrevisedaccordinglyandtheactualcostshavebeenused.2002R0092—EN—20.01.2002—000.001—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-
siondecidedtobaseitsfindingsontheinformationprovidedbyEurostat,sinceitconstitutesthemostreliabledataavailable.
(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,theadjustmentwaswithdrawn.
Dumping margins
(80)The definitive dumping margins, expressed as a percentage of
thecifimportpriceatCommunityborder,are:
Belarus
Allcompanies: 67,3%
Bulgaria
—ChimcoAD: 90,3%
—Others: 90,3%
Croatia
—Petrokemijad.d.: 72,9%
—Others: 72,9%
Estonia
—JSCNitrofert 37,4%
—Others: 37,4%
Libya
—NationalOilCorporation: 48,8%
—Others: 48,8%
Lithuania
—JointStockCompanyAchema,Jonava: 10,0%
—Others: 10,0%
Romania
—S.C.AmonilS.A.,Slobozia 20,1%
— PetromS.A. Sucursala DoljchimCraiova,
Craiova 40,7%
—SofertS.A.,Bacau 25,2%—Others: 40,7%
Ukraine
—CherkassyAzot,Cherkassy 21,1%
—DniproAzot,Dniprodzerzhinsk 66,3%—Others: 82,1%.2002R0092—EN—20.01.2002—000.001—12
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E.INJURY
1.DefinitionoftheCommunityindustry
(81)Several interested parties repeated their claimthat those
Community producerswhichpurchased andimported ureafromcountries covered by this proceeding, should be excluded from
thedefinitionoftheCommunityindustry
(82)As outlined at recital 156 of the provisional Regulation, these
purchasesweremainlysmallinvolumeandweremadetocoverproduction 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 inordertosupplementitsproductrange.Theinvestigationshowedthat this company is primarily a producer of urea, and not animporter, and that there are thus no good reasons for it to beexcludedfromthedefinitionoftheCommunityindustry.Inany
case such exclusion would have no significant impact on the
findingsofthecasenoronthelevelofdutiesimposed.
(83)Accordinglythefindingsinrecital 157oftheprovisionalRegu-lationareconfirmed.
2.Communityconsumption
(84)In the absence of any new information, the findings concerning
Community consumption as outlined at recitals 158 and 159 oftheprovisionalRegulationareconfirmed.
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 countriescoveredbythisproceeding.Theclaimwasbasedonthegroundsthattheimportvolumesandthemarketsharesdevelopeddiffer-
entlyovertheperiodconsidered.
(86)At recital 162 of the provisional Regulation, it was determined
that:
— importsfromallthecountriesconcernedweresubstantialand
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 pricesoftheCommunityindustry,
— the prices of both imported and Community produced urea
fellsignificantlyovertheperiodconsidered.
(87)The volume of urea imports from Romania followed the trendforthe price ofurea onthe Community market i.e. there wasa
certain relationship between prices and the volume of imports
fromRom ania over the period considered. In 1999 when priceswere at their lowest, there were almost no imports fromRomania.ThisisevidenceofpricetransparencyintheCommu-nity urea market. It also shows that Romanian exporters will
withdraw froma m arket 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 thefourthlargestexportertotheCommunityduringtheIP.
(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 1999followedbyasignificantreturntotheCommunitymarketduring2002R0092—EN—20.01.2002—000.001—13
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the IP. This is against a background of total import volumes
fromthecountriesconcernedrisingyearonyearovertheperiodconsidered. 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 andisnotareasonforde-cumulating theimportsfromRomania,orindeedanyoftheothercountriesconcerned.
(89)For all of the reasons outlined above, it is concluded that thecriteria as set out in Article 3(4) of the basic Regulation havebeenmet.Thefindingsatrecital 162oftheprovisionalRegula-tionare,therefore,confirmed.
Volume, market shares, and prices of the imports concerned
(90)Intheabsenceofanynewinformationonthevolumeandprices
ofimportsfromthecountriesconcerned,theprovisionalfindingsareconfirmed.
Undercutting
(91)For the provisional determinations, undercutting was calculated
by comparing the exporters' Community frontier, ex quay,
customsdutypaidpricelevel(DEQ)withtheCommunityprodu-cers' verified ex-works prices. The comparison was made at aprilledtoprilled,granulartogranular,bulktobulk,andbaggedtobaggedlevel.
(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 priceattheCommunityindustrylevelandnotthepriceattheindivi-dualproducerlevel.Itisclaimedthatsuchamethodologyserves
to artificially inflate the margin by zeroing at the Community
producerlevel.
(93)Itshouldfirstbenotedthattheundercuttingorpricecomparisonexercise 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 todepresspricestoasignificantdegree’.
(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 theCommunityureamarketisbothhighlytransparentandsensitivetopricechanges.
(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%,withanoverallaverageforallimportsof46%.Theleveloftheundercuttingrangedashighas17%.Forthisanalysis,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
theirresultswouldhavebeenanydifferent.
(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,
undersellingwasstillfound.
(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 theCommunitymarketduringtheIP.2002R0092—EN—20.01.2002—000.001—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 accountfortheundercuttingexercise.
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 affectthetrendsofthe injuryindicators overthe periodconsidered orto alter the provisional conclusions. Based on the above, theprovisional findings of material injury suffered by the Commu-
nityindustryareconfirmed.
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
partiesthattheinjurysufferedbytheCommunityindustrywasa
result of their fall in export sales, which in turn affected theirsalesontheCommunitymarket.
(101)In this respect, it should be noted that the assessment of thesituation ofthe Community industry wasbased ondata relatingto sales of the product concerned on the Community market.Therefore, the potential negative effects of reduced export sales
areexcludedintheaboveinjuryanalysis.
(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 industrywasabletodiverthalfofitslostexportsalesontotheCommu-
nitymarket.
(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 beingthecause,theinabilityoftheCommunityindustrytotakeadvan-
tageofanexpandingdomesticmarketwhenexportsalesfell,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
importspreventeditfromtakingfulladvantageofanexpanding
Community market. Therefore, itisconcluded that theeffect ofthe fall in export sales by the Community industry, and theallegedoversupply,whentheyareexaminedseparately,wasnotsufficient to break the causal link between the effect of thedumpedimportsandthematerialinjurysufferedbytheCommu-
nity industry. The conclusions of recitals 197 and 198 of the
provisionalRegulationareconfirmed.
G.COMMUNITYINTEREST
1.Importers/traders
(105)Following publication of the provisional Regulation, no
commentswerereceivedfromanyofthecooperatingimporters.However,oneassociationofimportersmaintainedthattheimpo-sition of anti-dumping measures was against the interest ofimporters of urea and that for them a flourishing agriculturalsectorisimportant.2002R0092—EN—20.01.2002—000.001—15
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(106)Asstatedatrecital206oftheprovisionalRegulation,therewill
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 conclusionssetoutinrecital206oftheprovisionalRegulation.
2.Users
Farmers
(107)Following publication of the provisional Regulation, comments
werereceivedfromfarmers'organisationsinAustria,Italy,Spainand the UK. None of these parties challenged the provisionalconclusion that the duties would lead to a 0,6 %, worst casescenario,increaseinfarmers'costs.Theydidhowever,objectto
the imposition of measures and to the conclusion that prise
increaseswouldnotbepassedoninfull.
(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
notbepassedoninfullisbasedonexperiencefrommanyotheranti-dumping proceedings. There is no evidence to suggest thatthiswouldnotbecaseinthisproceeding.
(109)Whilstthedifficultsituationfacedbyfarmersisre-affirmed,itisnot possible to conclude that the impact of the duties would besuchas to make the imposition of measures against the interestoftheCommunity.
Industrial users
(110)Nowrittencommentswerereceiveddirectfromanyofthecoop-
erating industrial users of urea. This suggests that the measureswouldnothavesuchanimportantimpactontheseusersofurea.
(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 plantwiththelossofupto380jobs.However,asthisclaimwasnotmadedirectlybythecompany,andasitisnotsupportedbyanyevidence,theclaimisrejected.
3.ConclusiononCommunityinterest
(112)IntheabsenceofanynewinformationregardingtheCommunity
interestaspects,theconclusionsofrecital219oftheprovisionalRegulation,areconfirmed.
H.DEFINITIVEANTI-DUMPINGMEASURES
1.Injuryeliminationlevel
(113)For the provisional determinations, underselling was calculated
by comparing the exporters' Community frontier, ex quay,
customsdutypaidpricelevel(DEQ)withtheCommunityprodu-
cers' verified ex-works target prices. The comparison wasmadebycompanyonaprilledtoprilled,granulartogranular,bulktobulk,andbaggedtobaggedlevel.
(114)Manyexportingproducersclaimedthattheadjustmentmadeforunloading costs to arrive at the DEQ price was insufficient. Itwas also claimed that an importers' (mainly traders) marginshouldbeincluded,inlinewithotherrecentfertilisercases.
(115)Further evidence of actual unloading costs incurred has beenobtainedfromseveralsources,includingtheexportingproducers,the Community industry, and independent importers. On thebasis of this information, the allowance for unloading costs hasbeenadjustedaccordingly.2002R0092—EN—20.01.2002—000.001—16
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(116)Thequestionofgrantinganadjustmentfortheimporters'margin
was considered on the merits of this particular investigation. It
wasfoundthatexportingproducerssoldureaontheCommunitymarket via a number of channels, including directly to the enduser. No evidence was provided that prices varied according tothechannelused.Rather,itwasfoundthatingeneral,thesellingprices did not depend upon the type of the customer. Nor were
any significant differences found between the sales channels
usedbytheCommunityindustryandthoseusedbytheexportingproducers. Accordingly the request for an adjustment for animporters'marginwasrejected.
(117)A number of parties, including the majority of the exportingproducers,claimedthattheCommunityproducers'pricesfortheundersellingcalculation shouldbetheweightedaveragepriceat
theCommunityindustrylevelandnotthepriceattheindividual
producerlevel.Itwasclaimedthatsuchamethodologyservedtoartificiallyinflatethemarginbyeliminatinganynegativeunder-selling at the Community producer level. In addition it wasclaimedthatbasinganti-dumpingdutiesonacalculationmetho-
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 Communityindustrycausedbydumpedimports.Toshowatruepictureanypricecomparisonshouldreflecteconomicreality.Theinvestiga-tion showed that competition on the Community market takes
placebetweeneachindividualexportingproducerandeachindi-
vidualproducerwhichformspartoftheCommunityindustry.Inthisrespectitisnoted, inter alia,thattherearesignificantprice
spreadsandimportantdifferencesinthelocationoftheCommu-nityproducers.Thus,theextentofanyinjuriousdumpingcaused
by an exporting producer to the Community industry should be
assessed on the actual market situation and on the basis ofspecificdataverifiedforeachcompany.
(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
isrejected.
(120)TheCommunityindustryclaimedthatsomeoftheureaimported
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 comparedtothepriceofCommunityproduced‘fat’prill.
(121)It was found that large diameter or ‘fat’ prills were indeedproduced bythe Community industry aswell 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 therearenoreasonswhy‘fat’prillsshouldbeconsideredasaseparate
producttype.
(122)Someexportingproducersrepeatedtheirclaimforanadjustment
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)Itshouldbenotedthat forcalculatingthenon-injuriouspriceatthe provisional stage, a profit margin of 8 % on cost was used2002R0092—EN—20.01.2002—000.001—17
(1) EuropeanCommunities—Anti-DumpingDutiesonImportsofCotton-Type
Bed Linen fromIndia — 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 fromRussia(
1).
For its part, the Community industry re-stated its claim that aprofitmarginof15%returnoncapitalemployed(ROCE)wouldbemoreappropriate.
(124)It is confirmed that the determination of the relevant profitmargininthisproceedingisbasedonanassessmentoftheprofitmargin 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 thefactsinotherproceedingsconcerningotherproductsand/orotherinvestigationperiods.
(125)For the reasons stated at recital 223 of the provisional Regula-tion,theclaimthatprofitabilitybebasedonROCEisrejected.
(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
incorporatedintothecalculations,whereappropriate.
2.Levelandformoftheduties
(128)Inlightoftheforegoing,itisconsideredthat,inaccordancewith
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
andtheUkraine,whicheverarethelower.
(129)Asregardstheresidualdutytobeappliedtothenoncooperatingexportingproducers,theresidualdutywasfixedonthebasisof
thehighestdutyrateestablishedforthecooperatingexportersin
eachcountry.
(130)One exporting producer claimed that, in order to be consistentwithapreviousproceeding,thedutiesshouldtaketheformofa
minimumimportprice,asisthecaseforureafromRussia.
(131)However, as stated at recital 231 of the provisional Regulation,
inordertoensuretheefficiency ofthemeasuresandtodiscou-rage the price manipulation which has been observed in some
previous proceedings involving the same general category of
product, i.e. fertilisers, definitive duties shouldtake the formofaspecificamountpertonne.Theclaimis,therefore,rejected.
(132)On the basis of the above, the definitive duty amounts are as
follows:
Country CompanyBasisforADduty
(%)Definitiveduty
(Europertonne)
Belarus Singlecountry-widemargin 8,0 7,81
Bulgaria ChimcoAD 24,2 21,43
Others 24,2 21,432002R0092—EN—20.01.2002—000.001—18
(1) CouncilRegulation(EC)No901/2001of7May2001imposingadefinitive
anti-dumping duty on imports of urea originating in Russia (OJ L 127,
9.5.2001,p.11).
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Country CompanyBasisforADduty
(%)Definitiveduty
(Europertonne)
Croatia Petrokemijad.d. 9,4 9,01
Others 9,4 9,01
Estonia JSCNitrofert 11,4 11,45
Others 11,4 11,45
Libya NationalOilCorporation 12,5 11,55
Others 12,5 11,55
Lithuania JointStockCompanyAchema 10,0 10,05
Others 10,0 10,05
Romania S.C.AmonilS.A.,Slobozia 6,7 7,20
PetromS.A. Sucursala DoljchimCraiova,
Craiova5,7 6,18
SofertS.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)Theindividualcompanyanti-dumpingdutyratesspecifiedinthis
Regulation were established on the basis of findings of thepresent investigation. Therefore, they reflect the situation foundduringthatinvestigation withrespecttothesecompanies.These
dutyrates(asopposedtothecountry-widedutyapplicableto‘all
other companies’) are thus exclusively applicable to imports ofproduct originating in the country concerned and produced bythecompaniesandthusbythespecificlegalentitiesmentioned.Imported product produced by any other company not specifi-
callymentioned intheoperative partofthisRegulation withits
nameandaddress,includingentitiesrelatedtothosespecificallymentioned, cannot benefit from these rates and shall be subjecttothedutyrateapplicableto‘allothercompanies’.
(134)Any claimrequesting the application of these individualcompany anti-dumping duty rates (e.g. following a change inthenameoftheentityorfollowingthesettingupofnewproduc-tionorsalesentities)shouldbeaddressedtotheCommission(
1)
forthwithwithallrelevantinformation,inparticularanymodifi-
cationinthecompany'sactivitieslinkedtoproduction,domestic
and export sales associated with e.g. that name change or thatchangeintheproduction andsalesentities. TheCommission, ifappropriate, will, after consultation of the Advisory Committee,amendtheRegulationaccordinglybyupdatingthelistofcompa-niesbenefitingfromindividualdutyrates.2002R0092—EN—20.01.2002—000.001—19
(1) CommissionoftheEuropeanCommunities
Directorate-GeneralTrade
TERV00/13
RuedelaLoi/Wetstraat200
B-1049Brussels.
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3.Collection ofprovisionalduties
(135)Inviewofthemagnitude ofthedumpingmarginsfoundandin
the light of the injury caused to the Community industry, it isconsidered necessary that the amounts secured by way of the
provisionalanti-dumpingduty,imposedbytheprovisionalRegu-
lation, should be definitively collected at the rate of the dutydefinitively imposed. Where the definitive duties are higherthantheprovisionalduties,onlytheamountssecuredattheleveloftheprovisionaldutiesshouldbedefinitivelycollected.
4.Undertakings
(136)Subsequenttotheimpositionofprovisionalmeasures,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 reasonssetoutinrecital236and237oftheprovisionalRegulation.
(137)It is recalled that the Commission had already accepted anundertakingfromtheBulgarianexportingproducerattheprovi-
sionalstageofthisproceeding(seerecital236oftheprovisional
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 minimumpriceoftheundertakingwasthereforeadaptedaccordingly.
(138)Subsequent to the disclosure of the provisional findings, thecomplainant Community industry objected to the Commission's
decision to accept an undertaking fromthe Bulgarian exporting
producer. In this respect, it was argued that the companyconcerned was related — or had close technical and industrialrelations—tootherexportersand/orproducersofnitrogenferti-lisers including urea, located in Bulgaria, Belarus and theUkrainewhichwouldconstituteastrongpotentialforcompensa-
tory arrangements. Furthermore, the Community industry raised
concernsregardingtheabilityofthisexportingproducertofulfiltheobligationsofanundertaking.
(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
companyspecificsituation.Thus,itwasfoundthatthecompany
concerned produces and exports only urea and that an effectivemonitoringoftheundertakingismostlikelyinthiscase.
(141)In any case, in the event of suspected breach, breach or with-drawal of the undertaking an anti-dumping duty may beimposed,pursuanttoArticle 8(9)and(10)oftheBasicRegula-tion.
(142)All other undertaking offers received were also analysed indetail. Two main obstacles to the acceptability of these under-
takingoffersresultedfromthisexamination:
(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(mostlytraders)intheCommunity.Thispracticeraisesaseriousriskofcross-compensationi.e.thatanyundertakingpriceswouldbeformallyrespectedbutthatpricesforproductsnotconcerned2002R0092—EN—20.01.2002—000.001—20
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would be lowered. All this would render the commitment to
respectaminimumpriceforureaeasytocircumvent andextre-melydifficulttomonitoreffectively.
(144)Furthermore, certain producers (vg: Estonia, Ukraine, Belarus)claimed that they had no control over, or even knowledge ofthe destination and/or sales conditions of their exports of urea,while it was clear fromofficial statistics that the product was
exportedtotheCommunityinlargequantities duringtheinves-
tigationperiod.Itisrecalledthatgiventhatthesecompaniesdidnot 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 the
investigation. It was considered that these facts render the riskof accepting an undertaking unreasonably high and the guaran-teestoassureapropermonitoringunsatisfactory.
(145)For the reasons set out above, it was therefore concluded thatnoneoftheundertakingsofferedsubsequenttothedisclosureofthedefinitivefindingsshouldbeaccepted.
(146)Theinterestedpartieswereinformedaccordinglyandthereasonswhythe undertaking offered could not be accepted disclosed in
detail to the exporters concerned. The Advisory Committee has
beenconsulted,
HASADOPTEDTHISREGULATION:
Article 1
1. A definitive anti-dumping duty is hereby imposed on imports of
urea, whether or not in aqueous solution, falling within CN codes
31021010 and 31021090 originating in Belarus, Bulgaria, Croatia,
Estonia,Libya,Lithuania,RomaniaandtheUkraine.
2. The rate of the definitive anti-dumping duty, applicable, before
duty, to the net, free-at-Community frontier price of the productdescribedinparagraph1above,shallbeasfollows:
Countryoforigin ProducedbyDefinitiveanti-
dumpingduty
(europerton)TARICadditional
code
Belarus Allcompanies 7,81 —
Bulgaria Allcompanies 21,43 A999Croatia Allcompanies 9,01 —Estonia Allcompanies 11,45 —Libya Allcompanies 11,55 —
Lithuania Allcompanies 10,05 —
Romania S.C.AmonilSA,Slobozia 7,20 A264
PetromSA Sucursala DoljchimCraiova,
Craiova6,18 A265
SofertSA,Bacau 8,01 A266
Allothercompanies 8,01 A9992002R0092—EN—20.01.2002—000.001—21
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Countryoforigin ProducedbyDefinitiveanti-
dumpingduty
(europerton)TARICadditional
code
Ukraine Open Joint Stock Company Cherkassy
Azot,Cherkassy16,27 A268
Joint Stock Company DniproAzot,
Dniprodzerzinsk8,85 A269
Allothercompanies 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 Article145 of Commission Regulation (EEC) No 2454/93 of 22 July 1993laying 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 theapportioningofthepriceactuallypaidorpayable.
4. Unless otherwise specified, the provisions in force concerning
customsdutiesshallapply.
Article 2
1. Importsshallbeexemptfromtheanti-dumpingdutiesimposedby
Article 1 provided that they are produced and directly exported (i.e.shippedandinvoiced)tothefirstindependentcustomerintheCommu-nity acting as an importer by the company named below which has
offered undertakings accepted bythe Commission, when such imports
areinconformitywithparagraph2.
Country CompanyTARICaddi-
tionalcode
Bulgaria ChimcoAD,ShoseazMezdra,3037Vratza A272
2. (a) Whenthedeclarationforreleaseforfreecirculationpursuantto
an undertaking is presented, exemption from the duty shall beconditional upon presentation of a valid commercial invoice,issued by the company listed in paragraph 1, to the MemberStatescustomsauthorities.
(b) Theundertakinginvoiceshallconformwiththerequirementsfor
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 the
descriptiononthecommercialinvoice.
3. Imports accompanied by such an undertaking invoice shall be
declaredundertheTARICadditionalcodeprovidedinparagraph1.
Article 3
The amounts secured by way of the provisional anti- dumping duty
imposed pursuant to Regulation (EC) No 1497/2001 shall be defini-
tively collected at the rate of the duties definitively imposed onimportsofurea,whetherornotinaqueoussolution,fallingwithinCN2002R0092—EN—20.01.2002—000.001—22
(1) OJ L 253, 11.10.1993, p. 1. Regulation as last amended by Commission
Regulation(EC)No993/2001(OJL141,28.5.2001,p.1).
▼B
codes 31021010 and 31021090 originating in Belarus, Bulgaria,
Croatia,Estonia,Libya,Lithuania,RomaniaandtheUkraine.
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 definitivelycollected.
Article 4
This Regulation shall enter into force on the day following that of its
publicationinthe Official Journal of the European Communities .
ThisRegulation shallbebindinginitsentirety anddirectly applicable
inallMemberStates.2002R0092—EN—20.01.2002—000.001—23
▼C1
▼B
▼B
ANNEX
The followingelements shall beindicated inthecommercial 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
SUBJECTTOANUNDERTAKING’
2. ThenameofthecompanymentionedinArticle2(1)issuingthecommercial
invoice
3. Thecommercialinvoicenumber4. Thedateofissueofthecommercialinvoice
5. TheTARICadditionalcodeunderwhichthegoodsontheinvoicearetobe
customsclearedattheCommunityfrontier
6. Theexactdescriptionofthegoods,including:
— theProductCodeNumber(PCN)
— thedescriptionofthegoodscorrespondingtothePCN(i.e.‘PCN1urea
inbulk’,‘PCN2urea,bagged’)
— thecompanyproductcodenumber(CPC)(ifapplicable)— CN-code— quantity(tobegivenintonnes)
7. Thedescriptionofthetermsofsale,including:
— pricepertonne
— theapplicablepaymentterms— theapplicabledeliveryterms— totaldiscountsandrebates
8. Name of the company acting as an importer to which the invoice is issued
directlybythecompany
9. The name of the official of the company that has issued the undertaking
invoiceandthefollowingsigneddeclaration:
‘I,theundersigned,certifythatthesalefordirectexportby[companyname]
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
[companyname],andacceptedbytheCommissionoftheEuropeanCommu-
nities through [Regulation (EC) No 1497/2001]. I declare that the
informationprovidedinthisinvoiceiscompleteandcorrect.’2002R0092—EN—20.01.2002—000.001—24