COUNCIL REGULATION (EC) No 2052/98 of 24 September 1998 further amending Regulations (EC) No 1890/97 and (EC) No 1891/97 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 Articles 13(9) and 15 thereof,

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

Whereas:

A. PROVISIONAL MEASURES

(1) In 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.

(2) 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 breach of the undertaking.

(3) For the fourth quarter of 1997, 12 Norwegian exporters failed to comply with their obligation to 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. On this basis, the Commission had reasons to believe that these companies had breached the terms of their undertakings.

(4) Consequently, the Commission, by Regulation (EC) No 1126/98 (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 0304 10 13, ex 0303 22 00 and ex 0304 20 13 originating in Norway and exported by the 12 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 listing the companies, from which undertakings were accepted.

B. SUBSEQUENT PROCEDURE

(5) All 12 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.

(6) Within the time limit set in the provisional duty Regulation, some of the Norwegian companies concerned submitted comments in writing.

(7) Subsequent to the written submissions received, the Commission sought and examined all information it deemed necessary for the purpose of a definitive determination on the apparent violations.

(8) None of the companies, which failed to respect their reporting obligations, submitted any valid evidence of force majeure as would have been necessary under the terms of the undertaking in order to lawfully justify such failure.

In the absence of specific provisions in this regard in Regulation (EC) No 384/96, hereinafter referred to as the 'basic anti-dumping Regulation`, and in Regulation (EC) No 2026/97, hereinafter referred to as the 'basic anti-subsidies Regulation`, and in accordance with the case law of the Court of Justice, the justification invoked by each company as circumstances constituting force majeure can only be recognised as such where the failure was the inevitable result of an extraneous cause which could not reasonably have been foreseen or pre-empted and made it objectively impossible for the company concerned to comply with its obligations.

In this regard, all circumstances invoked by the parties concerned, e.g. the illness of staff members for a few days, or the intense activity of other fish productions, cannot be considered as circumstances constituting force majeure.

(9) Two out of the twelve exporters listed in Annex I, i.e. Gigante Fiskekroken A/S and Melands Røkeri Eftf. A/S (6), have notified the Commission that they have changed their names and requested that the newly named companies be allowed to enter new undertakings as newcomers. However, the Commission is of the view that a simple change of name of a company is not sufficient to bring a party within the scope of Article 2 of Council Regulation (EC) No 1890/97 of 26 September 1997 imposing a definitive anti-dumping duty on imports of farmed Atlantic salmon originating in Norway (7) or Article 2 of Council Regulation (EC) No 1891/97 of 26 September 1997 imposing a definitive countervailing duty on imports of farmed Atlantic salmon originating in Norway (8).

C. DEFINITIVE MEASURES

(10) 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.

(11) In view of the comments submitted, it is concluded that definitive anti-dumping and countervailing duties should be imposed on imports of farmed Atlantic salmon originating in Norway and exported by the companies listed in Annex I.

(12) The investigations, which led to the undertakings, were concluded by a final determination as to dumping and injury by Regulation (EC) No 1890/97, and by a final determination as to subsidisation and injury by Regulation (EC) No 1891/97.

Therefore, in accordance with Article 8(9) of the basic anti-dumping Regulation and Article 13(9) of the basic anti-subsidies Regulation, the rate of the definitive duties for the twelve Norwegian companies should be fixed at the level of the duties established in those two Regulations.

D. DEFINITIVE COLLECTION OF PROVISIONAL DUTIES

(13) A breach of undertaking has been established in relation to the twelve exporters having violated their undertakings. Therefore, it is considered necessary that the amounts secured by way of provisional anti-dumping and countervailing duties be definitively collected at the level of the definitive duties.

(14) The Annex to Regulation (EC) No 1890/97 and the Annex to Regulation (EC) No 1891/97, exempting the parties listed therein from the relevant duty, should be amended to remove the exemption from the 12 companies listed in Annex I to this Regulation,

HAS ADOPTED THIS REGULATION:

Article 1

1. The Annex to Regulation (EC) No 1890/97 shall be replaced by Annex II hereto.

2. The Annex to Regulation (EC) No 1891/97 shall be replaced by Annex II hereto.

Article 2

The amounts secured by way of the provisional anti-dumping and countervailing duties imposed by Regulation (EC) No 1126/98 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 the companies listed in the Annex I to this Regulation 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, 24 September 1998.

For the Council

The President

N. MICHALEK

(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 157, 30. 5. 1998, p. 82.

(6) The new names are Gigante Sild A/S and Rokespesialisten A/S, respectively.

(7) OJ L 267, 30. 9. 1997, p. 1. Regulation as last amended by Regulation (EC) No 772/98 (OJ L 111, 9. 4. 1998, p. 10).

(8) OJ L 267, 30. 9. 1997, p. 19. Regulation as last amended by Regulation (EC) No 772/98 (OJ L 111, 9. 4. 1998, p. 10).

ANNEX I

>TABLE>

ANNEX II

>TABLE>