2002/498/EC: Commission Decision of 5 June 2002 accepting an undertaking in connection with the anti-dumping proceeding concerning imports of urea originating, inter alia, in Lithuania
Date: 2002-06-05
Institutions: European Commission
Subjects: Lithuania, anti-dumping duty, anti-dumping legislation, chemical fertiliser, dumping, import

27.6.2002

EN

Official Journal of the European Communities

L 168/51

II

(Acts whose publication is not obligatory)

COMMISSION

COMMISSION DECISION

of 5 June 2002

accepting an undertaking in connection with the anti-dumping proceeding concerning imports of
urea originating, inter alia, in Lithuania

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

(4)

(2002/498/EC)

Having regard to the Treaty establishing the European
Community,

Having regard to Council Regulation (EC) No 384/1996 (1) of
22 December 1995 on protection against dumped imports
from countries not members of the European Community, as
last amended by Council Regulation (EC) No 2238/2000 (2),
and in particular Articles 8 and 9 thereof,

After consulting the Advisory Committee,

Whereas:

(1)

(2)

(3)

A. PROCEDURE

The Commission, by Regulation (EC) No 1497/2001 (3)
(the provisional Regulation) imposed a provisional anti-
dumping duty on imports of urea originating in Belarus,
Bulgaria, Croatia, Estonia, Libya, Lithuania, Romania and
the Ukraine, and accepted an undertaking offered by an
exporting producer in Bulgaria.

The Council, by Regulation (EC) No 92/2002 (4) (the de-
finitive Regulation), imposed definitive anti-dumping du-
ties on imports of urea originating in Belarus, Bulgaria,
Croatia, Estonia, Libya, Lithuania, Romania and the Uk-
raine and exempted a Bulgarian exporting producer from
the said duties as an undertaking had been accepted by
the Commission from the company concerned.

the product concerned,

During the investigation, prior to the imposition of pro-
visional measures, the only Lithuanian exporting produ-
cer of
Joint Stock Company
Achema (Achema) had offered an undertaking, which
could not be accepted by the Commission for the rea-
sons set out in detail in recital 237 of the provisional
Regulation.

(1) OJ L 56, 6.3.1996, p. 1.
(2) OJ L 257, 11.10.2000, p. 2.
(3) OJ L 197, 21.7.2001, p. 4.
(4) OJ L 17, 19.1.2002, p. 1.

Following disclosure of the facts and considerations on
the basis of which it was intended to recommend the im-
position of definitive duties, Achema presented to the
Commission services within the deadlines stipulated, a
revised offer for a price undertaking. This undertaking
offer could not be accepted due to the fact that Achema
also sold other fertilisers to the Community. The exis-
tence of sales of other fertilisers rendered the commit-
ment to respect minimum prices for urea easy to circum-
those
vent by means of compensation with sales of
fertilisers at lower prices.

(5)

(6)

Subsequently, Achema submitted a substantially revised
undertaking offer. It is considered that the revised offer
would not only eliminate the injurious effect of dumping
but also seriously limit any risk of circumvention in the
form of cross-compensation with other products since,
in addition to the minimum price set for urea, the com-
pany offered to respect a precise price level for the other
fertilisers that it also exports to the Community. The
company also accepted to respect the remaining formal
requirements and reporting obligations usually stipulated
in undertakings for all fertilisers exported to the Commu-
nity.

This final, acceptable, offer of a price undertaking was
made by Achema prior to the publication of the defini-
tive findings, but at such a late stage in the proceeding
that it was administratively impossible to include its ac-
ceptance in the definitive Regulation. Exceptionally, and
particularly taking account of
the company’s efforts
throughout
the proceeding to offer an undertaking
which would overcome the Commissions concerns re-
garding the risk of circumvention and the elimination of
injury, it is considered appropriate to accept the under-
taking notwithstanding the fact that it was made after
the period during which representations must be made
pursuant to Article 20(5) of the Basic Regulation.

L 168/52

EN

Official Journal of the European Communities

27.6.2002

(7)

(8)

(9)

(10)

(11)

(12)

The Community industry was informed of this revised
offer and maintained its position that due to the general
conditions in the fertiliser market which is characterised
by significant price variations, any undertaking in the
form of a minimum price would be inefficient and
would undermine the anti-dumping measures imposed.
It should be noted that although certain price variations
have been observed on the urea market, these were not
sufficient as to render any undertaking inefficient. This
was also confirmed by the fact that an undertaking from
a Bulgarian exporting producer concerned by the investi-
gation which led to the imposition of definitive duties
(the original investigation) had already been in place for
several months and there were no indications that this
undertaking has been inefficient. There is therefore no
reason to believe that the undertaking offered by Ache-
ma would be inefficient.

The Community industry also opposed to the acceptance
of an undertaking so soon after the imposition of a defi-
nitive specific anti-dumping duty. It further alleged that
the final undertaking proposal did not differ substantially
from the previously refused offer made by the company,
where it proposed to follow market prices for the other
fertilisers exported to the Community.

For the reasons explained in recitals 5 and 6, these argu-
ments had to be rejected.

In this respect

Finally, the Community industry claimed that other pro-
ducts were produced by Achema which could be used
for cross-compensation.
it should be
noted that the undertaking offer contains a clause for
‘the Company’, i.e. Achema and any of its related compa-
nies, not to enter into compensatory arrangements in
any form with its unrelated customers. Furthermore, un-
der the proposed form of the undertaking the risk of
cross-compensation is already limited.

Finally, the Community industry claimed that accepting
an undertaking from certain exporters would constitute
an unjustified discrimination vis-à-vis other exporters
concerned by the original investigation from which an
undertaking had not been accepted.

In this regard, it should be noted that each undertaking
offer has to be examined on its own merits on the basis
of the criteria laid down in Article 8 of Council Regula-
tion (EC) No 384/96 on protection against dumped im-
the European
ports from countries not members of

(13)

(14)

Community. Thus, undertaking offers can only be ac-
cepted in cases where they eliminate the injurious dump-
ing and allow effective monitoring. This was the case for
Achema and for the Bulgarian company but not for the
remaining companies which offered undertakings.

Consequently, none of the arguments brought forward
by the Community industry alter the Commissions con-
clusion that the undertaking offered by Achema elimi-
nates the injurious effect of dumping and seriously limits
any risk of circumvention in the form of cross-compen-
sation with other products.

B. UNDERTAKING

In view of the foregoing, the Commission considers that
the undertaking offered by Achema can be accepted
since it eliminates the injurious effects of dumping.
Moreover, the regular and detailed reports which the
company undertook to provide to the Commission will
allow effective monitoring. In addition, the price com-
mitments the company undertook allow the Commission
to conclude that the risk of circumvention of the under-
taking will be adequately limited,

HAS ADOPTED THIS DECISION:

Article 1

The undertaking offered in accordance with Article 8(2) of Reg-
ulation (EC) No 384/96 by joint stock company, Achema,
Lithuania (TARIC additional code A375), in the framework of
the anti-dumping proceedings concerning imports of urea origi-
nating, inter alia, in Lithuania is hereby accepted.

Article 2

This Decision takes effect on the day following that of its publi-
cation in the Official Journal of the European Communities.

Done at Brussels, 5 June 2002.

For the Commission

Pascal LAMY

Member of the Commission