COUNCIL REGULATION (EC) No 2652/1999

of 13 December 1999

amending Council Regulation (EC) No 772/1999 imposing definitive anti-dumping and countervailing duties on imports of farmed Atlantic salmon originating in Norway

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 8(9) and 9 thereof,

Having regard to Council Regulation (EC) No 2026/97 of 6 October 1997 on protection against subsidised imports from countries not members of the European Community(2), and in particular Article 13(9) and 15 thereof,

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

Whereas:

A. PROVISIONAL DUTIES

(1) Within the framework of the anti-dumping and anti-subsidy investigations initiated by two separate notices published in the Official Journal of the European Communities(3), the Commission accepted, by Decision 97/634/EC(4), undertakings offered by the Kingdom of Norway and by 190 Norwegian exporters in connection with the anti-dumping and anti-subsidy proceedings concerning imports of farmed Atlantic salmon originating in Norway.

(2) The text of the undertakings provided that failure to submit a quarterly report of all sales transactions to the first unrelated customer in the Community within a prescribed time-limit except in case of force majeure would be construed as a violation of the undertaking, as would non-compliance with the obligation to sell the product concerned on the Community market at or above the minimum prices specified in the undertaking.

(3) For the first quarter of 1999, two Norwegian companies either failed to present a report within the prescribed time limit or appeared to have sold the product concerned to the Community market at prices which were below the prices specified in its undertaking. For the fourth quarter of 1998, the Commission also had reason to believe that another Norwegian exporter had sold the product concerned to the Community market at prices which were below the prices specified in its undertaking.

(4) The Commission therefore had reason to believe that these three companies had breached the terms of their undertakings and consequently, by Commission Regulation (EC) No 1826/1999(5) (hereinafter referred to as the "provisional duty Regulation"), imposed provisional anti-dumping and countervailing duties on imports of farmed Atlantic Salmon falling within CN codes ex 0302 12 00, ex 0303 22 00, ex 0304 10 13 and ex 0304 20 13 originating in Norway and exported by the three companies listed in Annex II of that Regulation. By the same Regulation, the Commission deleted the companies concerned from the Annex to Decision 97/634/EC, which listed the companies from which undertakings were accepted.

B. SUBSEQUENT PROCEDURE

(5) All three Norwegian companies subject to the provisional duties received disclosure in writing concerning the essential facts and considerations on the basis of which these provisional duties were imposed. They were also given an opportunity to submit comments and request a hearing.

(6) Within the time limit set in the provisional duty Regulation, all the Norwegian companies concerned submitted comments in writing and one requested a hearing, which was granted. Following these submissions, the Commission sought and examined all information it deemed necessary for the purpose of a definitive determination on the apparent violations.

(7) In this regard, the Commission's investigation established that two of the companies against which provisional duties had been imposed had not violated their undertakings and that they should be reinstated on the list of companies benefiting from an exemption to the anti-dumping and countervailing duties. The exporters were informed of the essential facts and considerations on the basis of which it was intended to reinstate the Commission's acceptance of their undertakings.

As concerns the other company, Vie de France Norway AS (now known as Cuisine Solutions Norway AS), which is subject to provisional duties, it was informed of the essential facts and considerations on the basis of which it was intended to confirm the withdrawal of the Commission's acceptance of its undertaking and to recommend the imposition of definitive anti-dumping and countervailing duties and the definitive collection of the amounts secured by way of provisional duties. It was also granted a period within which to make representations subsequent to this disclosure.

(8) The Commission's findings in this respect are set out more fully in Commission Regulation (EC) No 2592/1999(6).

(9) None of the comments submitted, however, have changed the conclusion that definitive anti-dumping and countervailing duties should be imposed on imports of farmed Atlantic salmon originating in Norway and exported by Vie de France AS (now known as Cuisine Solutions Norway AS).

C. DEFINITIVE DUTIES

(10) The investigations which led to the undertakings were concluded by a final determination as to dumping and injury by Regulation (EC) No 1890/97(7) and a final determination as to subsidisation and injury by Regulation (EC) No 1891/97(8). While both these Regulations were repealed by Regulation (EC) No 772/1999(9), the facts and considerations established therein remain valid (recital (19) of Regulation (EC) No 772/1999 refers).

(11) In accordance with Article 8(9) of Regulation (EC) No 384/96 and Article 13(9) of Regulation (EC) No 2026/97 respectively, the rate of the anti-dumping duty and the countervailing duty must be established on the basis of the facts established within the context of the investigation which led to the undertaking. In this regard, and in view of recital (107) of Regulation (EC) No 1890/97 and recital (149) of Regulation (EC) No 1891/97, it is considered appropriate that the definitive anti-dumping and countervailing duty rates be set at the level, and in the form imposed by Regulation (EC) No 772/1999.

D. DEFINITIVE COLLECTION OF PROVISIONAL DUTIES

(12) A breach of undertaking has been definitively established in relation to one of the three exporters which were provisionally considered to have violated their undertakings. It is therefore considered necessary that, in relation to this exporter, any amounts secured by way of provisional anti-dumping and countervailing duties be definitively collected at the level of the definitive duties.

E. AMENDMENTS OF THE ANNEX TO REGULATION (EC) No 772/1999

(13) By Commission Regulation (EC) No 2592/1999, the Commission accepted undertakings from two new exporters, Normarine AS and Oskar Einar Rydbeck. Pursuant to Article 2 of Regulation (EC) No 772/1999, the Commission also extended the exemption from the anti-dumping and countervailing duties to these exporters by adding their names to the Annex to that Regulation.

(14) Accordingly, in view of all the above, the Annex to Regulation (EC) No 772/1999 exempting the parties listed therein from the duty, should be amended so as to remove the exemption from Vie de France Norway AS. The Annex should also be updated to take account of the exemption extended by Commission Regulation (EC) No 2592/1999 to Normarine AS and Oskar Einar Rydbeck,

HAS ADOPTED THIS REGULATION:

Article 1

The Annex to Regulation (EC) No 772/1999 shall be replaced by the Annex hereto.

Article 2

The amounts secured by way of the provisional anti-dumping and countervailing duties imposed by Regulation (EC) No 1826/1999 in relation to farmed (other than wild) Atlantic salmon falling within CN codes ex 0302 12 00 (Taric codes: 0302 12 00*21, 0302 12 00*22, 0302 12 00*23 and 0302 12 00*29), ex 0303 22 00 (Taric codes: 0303 22 00*21, 0303 22 00*22, 0303 22 00*23 and 0303 22 00*29), ex 0304 10 13 (Taric codes: 0304 10 13*21 and 0304 10 13*29) and ex 0304 20 13 (Taric codes: 0304 20 13*21 and 0304 20 13*29) originating in Norway and exported by Vie de France AS, now known as Cuisine Solutions Norway AS (Taric additional code 8321), shall be definitively collected.

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.

Done at Brussels, 13 December 1999.

For the Council

The President

S. HASSI

(1) OJ L 56, 6.3.1996, p. 1. Regulation as last amended by Regulation (EC) No 905/98 (OJ L 128, 30.4.1998, p. 18).

(2) OJ L 288, 21.10.1997, p. 1.

(3) OJ C 235, 31.8.1996, p. 18, and OJ C 235, 31.8.1996, p. 20.

(4) OJ L 267, 30.9.1997, p. 81.

(5) OJ L 223, 24.8.1999, p. 3.

(6) OJ L 315, 9.12.1999, p. 17.

(7) OJ L 267, 30.9.1997, p. 1.

(8) OJ L 267, 30.9.1997, p. 19.

(9) OJ L 101, 16.4.1999, p. 1. Regulation as last amended by Regulation (EC) No 1895/1999 (OJ L 233, 3.9.1999, p. 1.)

ANNEX

LIST OF COMPANIES EXEMPTED FROM THE DEFINITIVE ANTI-DUMPING AND COUNTERVAILING DUTIES

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