COMMISSION REGULATION (EC) No 82/1999 of 13 January 1999 imposing provisional anti-dumping and countervailing duties on certain imports of farmed Atlantic salmon originating in Norway and amending Decision 97/634/EC

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(10) 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(10) thereof,

After consulting the Advisory Committee,

Whereas:

A. PROCEDURE

(1) On 31 August 1996, the Commission announced, by two separate notices published in the Official Journal of the European Communities, the initiation of an anti-dumping proceeding (4) as well as an anti-subsidy proceeding (5) in respect of imports of farmed Atlantic salmon originating in Norway.

(2) The Commission sought and verified all information that it deemed necessary for the purpose of its definitive findings. As a result of this examination, it was established that definitive anti-dumping and countervailing measures should be adopted in order to eliminate the injurious effects of dumping and subsidisation. All interested parties were informed of the results of the investigation and were given the opportunity to comment thereon.

(3) On 26 September 1997, the Commission adopted Decision 97/634/EC (6), as last amended by Regulation (EC) No 2249/98 (7), accepting undertakings offered in connection with the two above-mentioned proceedings from the exporters mentioned in its Annex and terminating the investigations in their respect.

(4) On the same day, the Council, by Regulation (EC) No 1890/97 (8), as last amended by Regulation (EC) No 2678/98 (9), imposed an anti-dumping duty of ECU 0,32 per kilo on imports of farmed Atlantic salmon originating in Norway. Imports of farmed Atlantic salmon exported by companies, from which an undertaking had been accepted were exempted from that duty pursuant to Article 1(2) of that Regulation.

(5) Again on the same day, the Council, by Regulation (EC) No 1891/97 (10), as last amended by Regulation (EC) No 2678/98, also imposed a countervailing duty of 3,8 % on imports of farmed Atlantic salmon originating in Norway. Imports of farmed Atlantic salmon exported by companies, from which an undertaking had been accepted were exempted from that duty pursuant to Article 1(2) of that Regulation.

(6) The above-mentioned Regulations set out the definitive findings and conclusions on all aspects of the investigations.

B. APPARENT FAILURE TO COMPLY WITH THE UNDERTAKING

(7) In order to ensure the effective implementation and monitoring of the undertakings accepted, the exporters undertook to report to the Commission, on a quarterly basis, the details of all their sales on a transaction by transaction basis of farmed Atlantic salmon to unrelated customers in the Community.

(8) The text of the undertakings specifically provides that failure to comply with the reporting obligations and, in particular, failure to submit the quarterly report within the prescribed time limit except in case of force majeure, would be construed as a violation of the undertaking.

(9) Nine Norwegian exporters have failed to comply with their obligation to present a report within the prescribed time limit and one exporter has not submitted any report at all for the second quarter of 1998.

These exporters were informed of the consequences of late or no reporting, and in particular that, should the Commission have reasons to believe that an undertaking is being violated, a provisional anti-dumping and countervailing duty may be imposed pursuant to Article 8(10) of Regulation (EC) No 384/96 and Article 13(10) of Regulation (EC) No 2026/97, respectively.

These exporters were also invited to provide evidence of any force majeure justifying the late submission or the lack of reports, but have so far failed to provide conclusive evidence of such force majeure.

(10) Besides their reporting obligations, the exporters specifically undertook to respect a precisely defined minimum price for sales of the respective presentations of salmon imported into the Community.

(11) In monitoring the reports relating to the second quarter of 1998, it appeared that the two exporters Brødrene Remo A/S and SMP Marine Produkter AS had made sales on the Community market below the minimum price foreseen in the undertaking.

(12) These two companies were given an opportunity to correct any possible clerical mistakes made in the processing of their reports and to comment on any erroneous assessments of their reports. However, the explanations given by these companies did not reveal any such circumstances.

C. PROVISIONAL MEASURES

(13) Under these circumstances, there are reasons to believe that the undertakings accepted by the Commission from the Norwegian exporters mentioned in the Annex to this Regulation are being violated.

(14) It is, therefore, considered imperative that, pending further investigation of these apparent violations, provisional duties be imposed.

D. RATE OF DUTY

(15) In accordance with Article 8(10) of the Regulation (EC) No 384/96, the rate of the anti-dumping duty must be established on the basis of the best information available.

(16) In this regard, and in view of recital 107 of Regulation (EC) No 1890/97, it is considered appropriate to set the rates of the provisional anti-dumping duty for all companies concerned at EUR 0,32/kg net product weight.

(17) In accordance with Article 13(10) of Regulation (EC) No 2026/97, the rate of the countervailing duty must be established on the basis of the best information available.

(18) Under the present circumstances and in view of recital 149 of Regulation (EC) No 1891/97, it is considered appropriate that the rate of the provisional countervailing duty be set at the level of 3,8 % of the net free-at-Community-frontier price before duty.

E. FINAL CONSIDERATIONS

(19) Decision 97/634/EC should therefore be amended accordingly, by the deletion of the exporters concerned from the list annexed to that Decision. For the sake of clarity, an updated version of this Annex should be published, showing the exporters whose undertakings remain in force.

(20) In the interest of sound administration, a period should be fixed in which interested parties may make known their views in writing and request a hearing,

HAS ADOPTED THIS REGULATION:

Article 1

1. A provisional anti-dumping duty is hereby imposed on imports of 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 the companies listed in Annex I.

2. The rate of duty applicable is EUR 0,32/kg net product weight.

Article 2

1. A provisional countervailing duty is hereby imposed on imports of 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 the companies listed in Annex I.

2. The rate of duty applicable to the net free-at-Community-frontier price, before duty, is 3,8 %.

Article 3

1. The duties referred to in Articles 1 and 2 shall not apply to wild Atlantic salmon (TARIC codes: 0302 12 00 * 11, 0304 10 13 * 11, 0303 22 00 * 11 and 0304 20 13 * 11). For the purpose of the present Regulation, wild Atlantic salmon shall be that in respect of which the competent authorities of the Member State of landing are satisfied, by means of all customs and transport documents to be provided by interested parties, that it was caught at sea.

2. Unless otherwise specified, the provisions in force concerning customs duties shall apply.

Article 4

The parties concerned may make their views known in writing and apply to be heard orally by the Commission within one month of the date of entry into force of this Regulation.

Article 5

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

Article 6

This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.

It shall apply for a period of four months.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 13 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 253, 31. 8. 1996, p. 18.

(5) OJ C 253, 31. 8. 1996, p. 20.

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

(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.

ANNEX I

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ANNEX II

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