COMMISSION REGULATION (EC) No 131/1999 of 21 January 1999 amending Regulation (EC) No 2249/98 imposing provisional anti-dumping and countervailing duties on imports of farmed Atlantic salmon originating in Norway with regard to certain exporters and amending Commission Decision 97/634/EC accepting undertakings offered in connection with the anti-dumping and anti-subsidies proceedings concerning imports of farmed Atlantic salmon originating in Norway

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

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), as last amended by Regulation (EC) No 905/98 (2), and in particular Article 8 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 (3), and in particular Article 13 thereof,

After consulting the Advisory Committee

,

Whereas:

A. PROVISIONAL MEASURES

(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 (4), the Commission accepted, by Decision 97/634/EC (5) as last amended by Regulation (EC) No 82/1999 (6), undertakings offered by 190 Norwegian exporters and the Kingdom of Norway.

(2) The text of the undertakings provides 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.

(3) For the first quarter of 1998, eight Norwegian companies either did not present a report within the prescribed time limit, or did not submit any report at all. These exporters did not provide any evidence of force majeure to justify such late reporting or non-reporting.

(4) The text of the undertakings also provides that failure to comply with the obligation to sell the product concerned on the Community market at or above the minimum price stipulated in the undertaking would be construed as a violation of the undertaking.

(5) In this regard, for the fourth quarter of 1997, one Norwegian exporter appeared to have sold the product concerned to the Community market at a price which was below the price stipulated in the undertaking. In addition, one of the Norwegian exporters which failed to submit its quarterly report for the first quarter of 1998 within the time limit, also appeared to have sold the product concerned to the Community market at a price which was below the price foreseen in the undertaking

(6) The Commission therefore had reason to believe that these nine companies had breached the terms of their undertakings.

(7) Consequently, the Commission, by Regulation (EC) No 2249/98 (7), 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 0304 10 13, ex 0303 22 00 and ex 0304 20 13 originating in Norway and exported by the nine companies listed in the Annex to 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

(8) All nine 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.

(9) Within the time limit set in the provisional duty Regulation, only one of the Norwegian companies concerned submitted comments in writing. Following receipt of this written submission, the Commission sought and examined all information it deemed necessary for the purposes of a definitive determination on the apparent violation. Comments were also submitted by a company not subject to an undertaking concerning NorMan Trading Ltd AS.

(10) Of the nine companies subject to the provisional measures, only one company, Norwell AS, requested a hearing.

(11) The interested parties were 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 their 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. They were also granted a period within which to make representations subsequent to this disclosure.

(12) The oral and written comments submitted by the interested parties were considered and, where deemed appropriate, taken into account in the definitive findings.

C. DEFINITIVE FINDINGS

(13) During the hearing, Norwell AS reiterated that the violation of its undertaking had occurred as a result of the deduction of certain credit notes, causing its average selling price to the Community to fall below the minimum import price for the last quarter of 1997. However, the company claimed mitigating circumstances in that the credit notes were issued in respect of a 'one-off` quality claim for a consignment of fish which arrived in abnormally poor condition at the premises of the buyers in the Community. This poor quality of the fish resulted in the company granting significant rebates to its customers. While admitting that the effect of the credit notes has been to reduce the company's average sales price from above the minimum import price to a level which is below that price, the company argued that, at the time when the sales price was negotiated, the issue of such credit notes for such an amount could not have been foreseen.

(14) Credit notes for quality claims would also justify a reduction of the customs value which, if the measure was not an undertaking but a variable duty, would lead to a proportional reduction of the applicable duties. To ensure, therefore, full equivalence of anti-dumping and countervailing measures whether taken in the form of duties or undertakings, the Commission considered that credit notes for genuine, substantiated quality claims should not lead to a violation finding.

(15) In view of the above, and with sufficient evidence now presented and verified which supports the claim of Norwell AS concerning the abnormally poor quality of this particular consignment, it is concluded that definitive measures should not be imposed on this company.

(16) As regards NorMan Trading Ltd AS, against which provisional duties were imposed, it was claimed by another Norwegian company that this company ceased trading in September 1997, was wound up, and had some of its activities transferred to the company which made the submission. Accordingly, as no comments were received on the violation findings and, as the company may no longer exist, the name of this company should be removed from the list of Norwegian exporters which are exempted from the definitive anti-dumping and countervailing duties.

(17) With regard to the remaining companies which failed to respect their reporting obligations, as mentioned above, none of them have claimed subsequent to disclosure that force majeure had prevented them from submitting their quarterly reports within the due period. Similarly, no further comments were received from the company which, in addition to failing to submit its report on time, also exported the product concerned to the Community at levels which were below the minimum price. Accordingly, definitive measures should be imposed against these companies.

D. WITHDRAWAL OF UNDERTAKINGS

(18) In monitoring the undertakings submitted by the Norwegian exporters, the Commission found over a period of time that a number of exporters had no sales to the European Community for consecutive reporting quarters. On verification, some of these companies also declared that they had not exported during the reference period of the original investigations which led to the present anti-dumping and countervailing measures, and that they have no binding contractual obligations to do so in the near future.

(19) The Commission informed the parties concerned of these findings and pointed out that, in view of these facts, the companies did not qualify as exporters within the meaning of Regulation (EC) No 384/96 (hereinafter referred to as 'the basic anti-dumping Regulation`) and Regulation (EC) No 2026/97 (hereinafter referred to as 'the basic anti-subsidies Regulation`). Furthermore, it was made known to these parties that to maintain the undertakings in force under these circumstances would be administratively cumbersome for the Commission in terms of monitoring.

These parties were also informed that they could offer again, when the relevant conditions are met, an undertaking as new exporters in accordance with Article 2 of Council Regulation (EC) No 1890/97 (8) as last amended by Regulation (EC) No 2678/98 (9), and with Article 2 of Council Regulation (EC) No 1891/97 (10), as last amended by Regulation (EC) No 2678/98. Any application by these parties under those Articles would be treated expeditiously. With regard to 21 companies which consequently withdrew their undertakings, the Council, by Regulation (EC) No 2039/98 (11), imposed definitive anti-dumping and countervailing duties on these companies and the Commission, accordingly, by Decision 98/540/EC (12), amended Decision 97/634/EC.

(20) Subsequent to these amendments, three more companies, namely Hirsholm Norge AS, Lorentz A. Lossius AS and Roger AS withdrew their undertakings voluntarily. In addition, having been informed of an apparent reporting violation by the Commission, another company, Fonn Egersund AS, also withdrew its undertaking.

(21) As a result of the withdrawal of their undertakings, these four companies are not entitled to continue to benefit from an exemption to the anti-dumping and countervailing duties, and their names should therefore be removed from the list of companies from which undertakings have been accepted.

E. AMENDMENT OF THE ANNEX TO DECISION 97/634/EC

(22) In parallel with this Regulation, the Commission is submitting a proposal for a Council Regulation imposing definitive anti-dumping and countervailing duties on farmed Atlantic salmon originating in Norway and exported by the other eight companies which are subject to the provisional duty imposed by the provisional duty Regulation.

(23) The Annex to Decision 97/634/EC accepting undertakings in the context of the present anti-dumping and anti-subsidies proceedings should be amended to take account of the reinstatement of the undertakings given by Norwell AS, in respect of which the provisional duty should be repealed.

(24) To take account of these changes and of the abovementioned withdrawals of undertakings, the Annex to Decision 97/634/EC listing the parties from which undertakings are being accepted, should be accordingly amended,

HAS ADOPTED THIS REGULATION:

Article 1

1. The Annex to Regulation (EC) No 2249/98 is hereby replaced by Annex I.

2. The amounts secured by way of the provisional anti-dumping and countervailing duties imposed by that Regulation in relation to farmed (other than wild) Atlantic salmon falling within CN codes ex 0302 12 00 (TARIC code: 0302 12 00*19), ex 0304 10 13 (TARIC code: 0304 10 13*19), ex 0303 22 00 (TARIC code: 0303 22 00*19) and ex 0304 20 13 (TARIC code: 0304 20 13*19) originating in Norway and exported by Norwell AS, undertaking No 128 (TARIC additional code: 8316) shall be released.

Article 2

The Annex to Decision 97/634/EC is hereby replaced by Annex II.

Article 3

This Regulation shall enter into force on the day following 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, 21 January 1999.

For the Commission

Leon BRITTAN

Vice-President

(1) OJ L 56, 6. 3. 1996, p. 1.

(2) OJ L 128, 30. 4. 1998, p. 18.

(3) OJ L 288, 21. 10. 1997, p. 1.

(4) OJ C 235, 31. 8. 1996, p. 18, and OJ C 235, 31. 8. 1996, p. 20.

(5) OJ L 267, 30. 9. 1997, p. 81.

(6) OJ L 8, 14. 1. 1999, p. 8.

(7) OJ L 282, 20. 10. 1998, p. 57.

(8) OJ L 267, 30. 9. 1997, p. 1.

(9) OJ L 337, 12. 12. 1998, p. 1.

(10) OJ L 267, 30. 9. 1997, p. 19.

(11) OJ L 263, 26. 9. 1998, p. 3.

(12) OJ L 252, 12. 9. 1998, p. 68.

ANNEX I

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ANNEX II

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