COMMISSION REGULATION (EC) No 651/98 of 23 March 1998 amending Council 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, amending Commission Regulation (EC) No 2529/97 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 amended by Regulation (EC) No 2331/96 (2), and in particular Articles 7 and 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,

Having regard to 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 (4), and in particular Article 2 thereof,

Having regard to Council Regulation (EC) No 1891/97 of 26 September 1997 imposing a definitive countervailing duty on imports of farmed Atlantic salmon originating in Norway (5), and in particular Article 2 thereof,

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 (6), the Commission had accepted, on 26 September 1997, by Decision 97/634/EC (7), undertakings offered by the Kingdom of Norway and by 190 Norwegian exporters. These undertakings apply to all sales invoiced by these exporters since 1 July 1997.

Subsequent to the acceptance of these undertakings, the Commission had reasons to believe that 29 exporters were failing to comply with the terms of these undertakings:

- it appeared from their reports relating to the third quarter 1997 that six Norwegian exporters had made sales on the Community market below the minimum price stipulated in the undertaking for each presentation of the product concerned,

- 23 Norwegian exporters failed to comply with their obligation to submit their report relating to the third quarter 1997 within the prescribed time limit, or did not submit such report at all. These exporters did not provide any evidence of force majeure to justify such late reporting.

(2) Consequently, the Commission, by Commission Regulation (EC) No 2529/97 (8), 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 originating in Norway and exported by the companies listed in Annex I to that Regulation.

B. SUBSEQUENT PROCEDURE

(3) All Norwegian companies concerned by the provisional duties received disclosure in writing concerning the essential facts and considerations on the basis of which these duties were imposed.

(4) Within the time limit set in the Provisional Duty Regulation, most of the Norwegian companies concerned submitted comments in writing.

(5) Subsequent to the written submissions received, the Commission sought and verified all information it deemed necessary for the purpose of a definitive determination on the apparent violations, and carried out verification visits at the premises of the following companies in Norway:

- Fresh Marine Company AS (Taric additional code 8149), and

- Seanor AS (Taric additional code 8272).

C. DEFINITIVE FINDINGS

(6) During the subsequent procedure, four companies could provide satisfactory evidence demonstrating that the provisional findings resulted inter alia from erroneous or unclear reporting on the part of the companies concerned. In fact, the actual average sales prices of these companies for the respective presentations of the product concerned were such that they did not violate the minimum price as stipulated in the undertaking.

(7) One of the companies which apparently had failed to send its undertaking report within the time limit set could finally provide evidence that despite the adverse prima facie evidence initially available, it had in fact delivered its report in time to the local post office.

(8) For the aforementioned five exporters therefore, the breach of their undertakings provisionally established cannot be definitively confirmed. Consequently, following the exporters' confirmation that they intend to continue to adhere to their undertakings, the status quo ante should be re-established as regards these companies' undertakings.

(9) Therefore, for the following five companies, the provisional measures are to be repealed, the amounts secured by way of provisional duty are to be released, and their undertakings reinstated.

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(10) Parties were informed of the essential facts and considerations on the basis of which it was intended to repeal the provisional anti-dumping and countervailing duties and reinstate their undertakings. No further comments were received.

(11) None of the other companies which failed to respect their reporting obligations submitted any valid evidence of force majeure as allowed by the undertaking.

In the absence of specific provisions in this regard in the basis anti-dumping and anti-subsidies regulations, 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 holidays of a responsible person, misunderstanding about the scope of the undertakings, loss of time management software, erroneous filing of correspondence, cannot be considered as circumstances constituting force majeure.

(12) On the basis of the foregoing it is concluded that two Norwegian exporters have breached their obligation to respect the minimum price. In addition, 22 other Norwegian exporters have breached the reporting requirements of their undertakings.

(13) 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.

D. NEWCOMERS

(14) Following the imposition of definitive anti-dumping and countervailing duties, several companies made themselves known to the Commission claiming to be new exporters, and offered undertakings.

(15) In this regard, one such company, Nor-Fa Food AS could demonstrate that if had not exported to the Community during the investigation period relevant for the investigations which led to the current anti-dumping and countervailing measures. This company could show that it was not related to any of the exporters or producers in Norway which are subject to the anti-dumping and countervailing measures on farmed Atlantic salmon. Finally, it demonstrated that it had entered into irrevocable contractual obligation to export a significant quantity of farmed Atlantic salmon to the Community.

The undertaking offered is identical in its terms to those previously accepted from other Norwegian exporters of farmed Atlantic salmon, and it is considered that the acceptance of an undertaking in these terms from this exporter will be sufficient to remove the injurious effects of dumping.

Since the exporter has agreed to provide the Commission with regular and detailed information on its exports to the Community, it is concluded that the correct observance of the undertaking can be effectively monitored by the Commission.

(16) The undertaking offered by this company is therefore considered acceptable. The company was informed of the essential facts and considerations on which the acceptance of the undertaking be based. The Advisory Committee was consulted and no objections were raised as to the acceptance of the undertaking offered. Therefore, pursuant to Article 2 of Regulation (EC) No 1890/97 and Article 2 of Regulation (EC) No 1891/97, the Annexes to these two Regulations should be amended to extend the exemption from the payment of the anti-dumping and countervailing duties to this new exporter.

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

(17) The Commission is in parallel to this Regulation 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 24 companies which are subject to the provisional duty imposed by the Provisional Duty Regulation and for which the breach of the undertaking has been confirmed by the definitive findings made.

In addition, certain companies informed the Commission, that their name had been changed or that their name as shown in the Annex to Decision 97/634/EC is not correct. Where a company has changed its name, the Commission verified that there was no change in the corporate structure which would call for a more detailed examination of the appropriateness of maintaining its undertaking.

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 acceptance of the undertaking by the newcomer Nor-Fa Food AS, the change of name of Skaarfish Group AS, the correction of the name indicated for West Fish Sales Ltd and the reinstatement of the undertakings given by the companies in respect of which the provisional duty is being repealed. In the interests of clarity, the full Annex, as revised, is annexed hereto at Annex II,

HAS ADOPTED THIS REGULATION:

Article 1

1. The Annex to Regulation (EC) No 2529/97 is hereby replaced by Annex I hereto.

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 the following companies shall be released.

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Article 2

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

Article 3

The following company shall be added to the Annex to Regulation (EC) No 1890/97 and the Annex to Regulation (EC) No 1891/97:

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Article 4

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, 23 March 1998.

For the Commission

Leon BRITTAN

Vice-President

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

(2) OJ L 317, 6. 12. 1996, p. 1.

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

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

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

(6) OJ C 235, 31. 8. 1996, pp. 18 and 20.

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

(8) OJ L 346, 17. 12. 1997, p. 63.

ANNEX I

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ANNEX II

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