Council Regulation (EC) No 2678/98 of 10 December 1998 amending Regulation (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
Date: 1998-12-10
Institutions: Council of the European Union
Subjects: Norway, anti-dumping duty, countervailing charge, fish farming, import, sea fish

12. 12. 98

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Official Journal of the European Communities

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I

(Acts whose publication is obligatory)

COUNCIL REGULATION (EC) No 2678/98

of 10 December 1998

amending Regulation (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,

(2)

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
the European
Community (1), (hereinafter referred to as ‘the basic anti-
dumping Regulation'), and in particular Article 8(9) and
Article 9 thereof,

not members

of

Having regard to Council Regulation (EC) No 2026/97 of
6 October 1997 on protection against subsidised imports
from countries
the European
Community (2) (hereinafter referred to as ‘the basic anti-
subsidies Regulation'), and in particular Article 13(9) and
Article 15 thereof,

not members

of

Having regard to the proposal submitted by the Commis-
sion after consulting the Advisory Committee,

Whereas:

A. PROVISIONAL MEASURES

(1)

In the framework of the anti-subsidy and anti-
dumping investigations initiated by two separate
notices published in the Offical Journal of the
the Commission
European
accepted, by Decision 97/634/EC (4), undertaking
offered by the Kingdom of Norway and by 190
Norwegian exporters.

Communities (3),

(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. Decision as last amended by
Regulation (EC) No 2249/98 (OJ L 282, 20. 10. 1998, p. 57).

In monitoring the reports received for the fourth
quarter of 1997, it appeared that three Norwegian
exporters — Icelandic Freezing Plants Norway AS,
Incofood AS, and Ma-vo Norge AS — had made
sales on the Community market below the
minimum price stipulated in the undertaking and
were therefore in breach of their obligations under
the undertaking. When given the possibility to
correct any possible clerical mistakes, one company
made submissions showing that it had so far been
reporting to the Commission sales to its related
companies in the Community, instead of its resales
to the first independent buyer, as required under
the terms of the undertaking. These sales to related
companies represented the overwhelming majority
of total export sales of the product concerned to
the Community made by this company.

(3)

Consequently, the Commission, by Regulation (EC)
No 1789/98 (5), hereinafter referred to as ‘the provi-
sional 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 three companies mentioned above. By the same
Regulation,
the Commission removed the com-
panies concerned from the Annex to Decision 97/
634/EC listing the companies from which under-
takings were accepted.

B. SUBSEQUENT PROCEDURE

(4)

Immediately after the imposition of the provisional
duties, these three Norwegian companies received
disclosure in writing of
facts and
considerations, on the basis of which these provi-
sional duties were imposed.

the essential

(5) OJ L 228, 15. 8. 1998, p. 4.

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Official Journal of the European Communities

12. 12. 98

(5)

submit any comments
One company did not
further to the Commission’s disclosure document.
Furthermore,
previously
informed the Commission that on 1 January 1998
it had returned its export licence issued by the
Norwegian authorities.

company

had

the

(6) Within the time limit set in the provisional duty
Regulation,
the other two companies submitted
comments in writing and were granted a hearing.

(10)

explicit

reporting

obligations must
the undertaking,

In view of the fact that the non-compliance with
be
the
construed as a breach of
in
accordance with Article 8(7) of
the basic anti-
dumping Regulation and Article 13(7) of the basic
Anti-subsidies Regulation,
is not considered
necessary to establish whether actual sales price
levels infringed the minimum price provision set
in the undertaking. Indeed, this could only have
in addition to having breached the
shown that,
undertaking by reporting in a way which prevents
its effective monitoring by the Commission, the
minimum price set therein might have not been
respected.

it

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.

(11)

(7)

(8)

(9)

to independent parties,

As regards the company having reported sales to its
related parties, this further examination confirmed
the provisional findings set out in recital 11 of the
provisional duty Regulation. Indeed, it was estab-
lished that almost the totality of the transactions
reported for the fourth quarter of 1997 as well as
those included in the quarterly reports submitted
for the third quarter of 1997, and the first and
second quarter of 1998 within the given deadlines
were in fact sales to related companies in the
Community and not
it
being the latter which should have been reported,
in accordance with the clear terms of the under-
taking. In reaction to the disclosure document sent
after
the
the provisional duties were imposed,
company claimed that it had only made a reporting
error and on 15 September 1998 sent the Commis-
sion new reports for the third and fourth quarters
of 1997 and for the first and second quarters of
1998. In addition, the company contended that the
sales to first independent customers reported in the
revised reports respected the minimum price provi-
sion. Thus, it was alleged no injury was caused to
the Community industry.

In its undertaking, the company undertook to send
the Commission, within the given deadlines, a
confidential report of all sales transactions to the
in the Community.
first unrelated customers
Furthermore, the undertaking stipulates that failure
to submit the quarterly report as required within
the prescribed time limits shall be considered a
violation of the undertaking, except in cases of
force majeure. Despite these clear terms, of which
the company was fully aware,
it only reported
transfer sales, within the given deadlines, and thus
violated its reporting obligation. Indeed, transfer
sales do not allow any conclusions to be reached on
the actual sales prices charged to first unrelated
customers, and thus do not enable the Commission
to monitor the undertaking.

this

The third company admitted that it had made a
sale below the minimum price stipulated by the
transaction representing the
undertaking,
totality of sales of the presentation in question.
However, the exporter claimed that for this transac-
tion, which was admitted to be a special sale
intended to be made with no profit, the minimum
price would have been respected if unforeseen
transport arrangements had not
resulted in an
unexpectedly low sales price. It was claimed that
the goods were shipped through a border point
different from the one foreseen by the company,
and that they were shipped on a partial instead of a
full
the higher transport costs thus
incurred thereby increasing the deduction per kilo
for transport costs within the Community made
from the delivered duty paid (DDP) price to the
first independent customer, in order to obtain the
Community border price.

truck load,

Quite apart from the difficulty of verifying such
hypothetical arguments, which were only gradually
put forward in the course of successive explana-
tions, the breach seems to result from the fact that
the sale was planned too close to the minimum
price level, not even yielding any profit. Given the
clear terms of the minimum price obligation in the
undertaking, which include the deduction for
direct selling expenses in case of DDP sales, it is
incumbent upon the company to make sure that
respected regardless of
the minimum price is
whether favourable transport arrangements can be
made, or otherwise.

C. DEFINITIVE MEASURES

(12)

The interested parties were informed of the essen-
tial 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 defin-
itive collection of the amounts secured by way of

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L 337/3

provisional duties. The parties were also granted a
period, within which to make representations
subsequent to this disclosure.

(13) After having duly

it

considered the

comments
is concluded that definitive anti-
submitted,
dumping and countervailing duties
should be
imposed on imports of farmed Atlantic salmon
originating in Norway and exported by the com-
panies listed in Annex I.

(14)

The investigations which led to the undertakings
were concluded by a final determination as to
dumping and injury by Regulation (EC) No 1890/
97 (1), and by a final determination as to subsidisa-
tion and injury by Regulation (EC) No 1891/97 (2).
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 three Norwegian com-
panies should be fixed at the level of the duties
established in those two Regulations.

D. DEFINITIVE COLLECTION OF

PROVI-

SIONAL DUTIES

(15) A breach of the undertaking has been established
in relation to the three exporters listed in Annex I
to this Regulation. Therefore,
is considered
it
the amounts secured by way of
necessary that
provisional anti-dumping and countervailing duties
be definitively collected at the level of the defin-
itive duties.

(16)

E. UPDATING OF THE LIST OF EXPORTERS
EXEMPTED FROM ANTI-DUMPING AND
COUNTERVAILING DUTIES

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

HAS ADOPTED THIS REGULATION:

Article 1

The Annex to Regulation (EC) No 1890/97 is hereby

1.
replaced by Annex II to this Regulation.

The Annex to Regulation (EC) No 1891/97 is hereby

2.
replaced by Annex II to this Regulation.

Article 2

The amounts secured by way of the provisional anti-
dumping and countervailing duties imposed by Regula-
tion (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)
code:
0304 20 13 * 19) originating in Norway and exported by
the companies listed in Annex I to this Regulation shall
be definitively collected.

0304 20 13

(Taric

and

ex

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, 10 December 1998.

For the Council

The President

W. SCH(cid:154)SSEL

(1) OJ L 267, 30. 9. 1997, p. 1. Regulation as last amended by
Regulation (EC) No 2052/98 (OJ L 264, 29. 9. 1998, p. 17).
(2) OJ L 267, 30. 9. 1997, p, 19. Regulation as last amended by
Regulation (EC) No 2052/98 (OJ L 264, 29. 9. 1998, p. 17).

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Official Journal of the European Communities

12. 12. 98

ANNEX I

LIST OF COMPANIES SUBJECT TO DEFINITIVE ANTI-DUMPING AND COUNTER-
VAILING DUTIES

UT No

68
70
89

Company

Icelandic Freezing Plants N. AS
Incofood AS
Ma-vo Norge AS

Taric
additional
code

8165
8172
8190

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Official Journal of the European Communities

L 337/5

ANNEX II

LIST OF COMPANIES BENEFITING FROM UNDERTAKINGS

UT No

Company name

Taric
additional
code

1
3
5
7
8
11
13
14
15
16
17
20
21
22
23
24
26
27
28
30
31
32
33
35
36
39
41
42
43
44
46
47
48
49
50
51
52
53
58
60
61
62
64
65
66

A. Øvreskotnes AS
Agnefest Seafood
Alsv(cid:134)g
Aqua Export A/S
Aqua Partner A/S
Arctic Group International
Artic Superior A/S
Arne Mathiesen A/S
A/S Aalesundfisk
A/S Austevoll Fiskeindustri
A/S Keco
A/S Refsnes Fiskeindustri
A/S West Fish Ltd
Astor A/S
Atlantic King Stranda A/S
Atlantic Seafood A/S
Borkowski & Rosnes A/S
Brødrene Aasjord A/S
Brødrene Eilertsen A/S
Brødrene Remø AS
Christiansen Partner A/S
Clipper Seafood A/A
Coast Seafood A/S
Dafjord Laks A/S
Delfa Norge A/S
Domstein Salmon A/S
Ecco Fisk & Delikatesse
Edvard Johnson A/S
Eurolaks AS
Euronor AS
Fiskeforsyningen AS
Fjord Aqua Group AS
Fjord Trading Ltd AS
Fonn Egersund AS
Fossen AS
Fresh Atlantic AS
Fresh Marine Company AS
Fryseriet AS
Grieg Seafood AS
Haafa fisk AS
Hallvard Lerøy AS
Herøy Filetfabrikk AS
Hirsholm Norge AS
Hitramat & Delikatesse AS
Hydro Seafood Sales AS

8095
8325
8098
8100
8101
8109
8111
8112
8113
8114
8115
8118
8119
8120
8121
8122
8124
8125
8126
8128
8129
8130
8131
8133
8134
8136
8138
8139
8140
8141
8143
8144
8145
8146
8147
8148
8149
8150
8300
8302
8303
8304
8306
8154
8159

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12. 12. 98

UT No

Company name

Taric
additional
code

67

72

75

76

77

79

80

82

83

84

85

86

87

88

90

92

93

96

98

99

100

101

104

105

107

108

111

112

113

114

115

116

117

119

120

121

122

123

124

126

128

129

130

134

137

140

141

142

143

144

Hydrotech-gruppen AS

Inter Sea AS

Janas AS

Joh. H. Pettersen AS

Johan J. Helland AS

Karsten J. Ellingsen AS

Kr. Kleiven & Co. AS

Labeyrie Norge AS

Lafjord Group AS

Langfjord Laks AS

Leica Fiskeprodukter

Leonhard Products AS

Lofoten Seafood Export AS

Lorentz A. Lossius AS

Marex AS

Marine Seafood AS

Marstein Seafood AS

Memo Food AS

Midsundfisk AS

Myre Sjømat AS

Naco Trading AS

Namdal Salmon AS

Nerg(cid:134)rd AS

Nils Williksen AS

Nisja Trading AS

Nor-Food AS

Nordic Group ASA

Nordreisa Laks AS

Norexport AS

Norfi Produkter AS

Norfood Group AS

Norfra Eksport AS

NorMan Trading Ltd AS

Norsk Akvakultur AS

Norsk Sjømat AS

Northern Seafood AS

Nortrade AS

Norway Royal Salmon Sales AS

Norway Royal Salmon AS

Norway Seafoods ASA

Norwell AS

Notfisk Arctic AS

Nova Sea AS

Ok-Fish Kvalheim AS

Pan Fish Sales AS

Polar Seafood Norway AS

Prilam Norv(cid:138)ge AS

Pundslett Fisk

Roger AS

Rolf Olsen Seafood AS

8428

8174

8177

8178

8179

8181

8182

8184

8185

8186

8187

8423

8188

8189

8326

8196

8197

8200

8202

8203

8206

8207

8210

8211

8213

8214

8217

8218

8223

8227

8228

8229

8230

8232

8233

8307

8308

8309

8312

8314

8316

8234

8235

8239

8242

8247

8248

8251

8253

8254

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L 337/7

UT No

Company name

145
146
147
148
149
151
153
154
155
156
157
158
159
160
161
162
164
165
166
167
168
171
172
174
175
176
177
178
180
182
183
187
188
189
190
191

Ryfisk AS
Rørvik Fisk- og fiskematforretning AS
Saga Lax Norge AS
Saga Lax Nord A/S
Salomega AS
Sangoltgruppa AS
Scanfood AS
Sea Eagle Group AS
Sea Star International AS
Sea-Bell AS
Seaco AS
Seacom AS
Seacom Nord AS
Seafood Farmers of Norway Ltd AS
Seanor AS
Sekkingstad AS
Sirena Norway AS
Kinn Salmon AS
Skarpsno Mat
SL Fjordgruppen AS
SMP Marine Produkter AS
Stavanger Røkeri AS
Stjernelaks AS
Stolt Sea Farm AS
Storm Company AS
Superior AS
Svenodak AS
Terra Seafood AS
Timar Seafood AS
Torris Products Ltd AS
Troll Salmon AS
Vie de France Norway AS
Vikenco AS
Wannebo International AS
West Fish Norwegian Salmon AS
Nor-Fa Food AS

Taric
additional
code

8256
8257
8258
8259
8260
8262
8264
8265
8266
8267
8268
8269
8270
8271
8272
8273
8275
8276
8277
8278
8279
8282
8283
8285
8286
8287
8288
8289
8294
8298
8317
8321
8322
8323
8324
8102