2002/743/EC: Commission Decision of 14 August 2002 amending Decision 97/634/EC accepting undertakings offered in connection with the anti-dumping and anti-subsidy proceedings concerning imports of farmed Atlantic salmon originating in Norway
Date: 2002-08-14
Institutions: European Commission
Subjects: Norway, anti-dumping legislation, anti-subsidy proceeding, fish farming, import, originating product, sea fish

7.9.2002

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Official Journal of the European Communities

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II

(Acts whose publication is not obligatory)

COMMISSION

COMMISSION DECISION

of 14 August 2002

amending Decision 97/634/EC accepting undertakings offered in connection with the anti-dumping
and anti-subsidy proceedings concerning imports of farmed Atlantic salmon originating in Norway

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

(3)

(2002/743/EC)

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 2238/2000 (2), and in parti-
cular Article 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,

After consulting the Advisory Committee,

Whereas:

A. PREVIOUS PROCEDURE

(1)

(2)

On 31 August 1996, by means of two separate notices
published in the Official Journal of the European Commu-
nities, the Commission announced the initiation of an
anti-dumping
anti-subsidy
proceeding (5) in respect of imports of farmed Atlantic
salmon (the product concerned) originating in Norway.

proceeding (4)

and

an

These proceedings resulted in anti-dumping and counter-
vailing duties being imposed in September 1997 by
Council Regulations (EC) No 1890/97 (6) and (EC) No
1891/97 (7) in order to eliminate the injurious effects of
dumping and subsidisation.

In parallel to this, by Decision 97/634/EC (8), as last
amended by Decision 2002/157/EC (9), the Commission
accepted undertakings from 190 Norwegian exporters
and imports of the product concerned to the Community
by these companies were exempted from the said anti-
dumping and countervailing duties.

(4)

(5)

(6)

The form of the duties was later reviewed and Regula-
tions (EC) No 1890/97 and (EC) No 1891/97 were
replaced by Regulation (EC) No 772/1999 (10), as last
amended by Regulation (EC) No 322/2002 (11).

Following indications that the existing measures may not
be achieving their intended results, an interim review of
the measures (12) was initiated in February 2002 pursuant
to Article 11(3) of Council Regulation (EC) No 384/96
(the basic Anti-Dumping Regulation) and Article 19(1)
of Council Regulation (EC) No 2026/97 (the basic Anti-
Subsidy Regulation).

Having reason to suspect that certain companies were
not observing the terms of their undertakings, by Regula-
tion (EC) No 452/2002 (13) (the Registration Regulation)
and pursuant to Article 14(5) of the basic Anti-Dumping
Regulation and Article 16(4) of the basic Anti-Subsidy
Regulation, the Commission made imports by Norwe-
gian companies with undertakings subject to registration.
The duration of
the Registration Regulation was
extended for a further period by Regulation (EC) No
1008/2002 (14). Consequently, in the event of a finding

(1) OJ L 56, 6.3.1996, p. 1.
(2) OJ L 257, 11.10.2000, p. 2.
(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. 1.
(7) OJ L 267, 30.9.1997, p. 19.

(8) OJ L 267, 30.9.1997, p. 81.
(9) OJ L 51, 22.2.2002, p. 32.
(10) OJ L 101, 16.4.1999, p. 1.
(11) OJ L 51, 22.2.2002, p. 1.
(12) OJ C 53, 20.2.2002, p. 10.
(13) OJ L 72, 14.3.2002, p. 7.
(14) OJ L 153, 13.6.2002, p. 9.

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of a breach or withdrawal of an undertaking, duties may
be levied retroactively on goods entered into free circula-
tion in the Community from the date of the breach or
withdrawal of the undertaking.

and orally. Comments received were taken into account
where appropriate.

(7)

(8)

(9)

B. BREACHES OF THE UNDERTAKINGS

1. Obligations of companies with undertakings

The undertakings offered by the Norwegian companies
oblige them, inter alia, to export the product concerned
to the Community at or above certain minimum import
price levels (MIPs) laid down in the undertaking. These
MIPs, which eliminate the injurious effects of dumping,
are applicable to different ‘presentations’ or categories of
the product concerned (e.g.
‘presentation b — gutted
fish, head-on’). A degree of flexibility is built into the
MIPs whereby an exporter can make some export trans-
actions for the product concerned at prices below the
MIP (i.e. down to 85 % of the MIP), as long as the net
weighted average sales price for all transactions in the
quarter for the presentation concerned is at or above the
MIP.

(12) While Nordic Group ASA did not deny that the weighted
average sales price of ‘presentation b’ salmon for the
quarter in question was below the MIP level,
it was,
however, claimed that
there were mitigating circum-
stances for this. It was stated that employees of Nordic
Group ASA had verbal instructions concerning the use
of the salmon undertaking's ‘15 % flexibility’ clause (see
recital 7) and that great care was to be taken to ensure
that sales to a customer below the MIP were counterba-
lanced by sales above the MIP. In this regard,
it was
claimed that one employee wilfully disobeyed this
instruction over a period of time between January and
March 2001 and it was the action of this person which
led to the breach of the undertaking. The employee
concerned not only sold salmon below prices necessary
to achieve compliance with the quarterly MIP, but also
the
issued credit notes against
company. Nordic Group ASA therefore argued that the
action of this person was beyond the control of the
company and that the breach was the consequence of
force majeure.

the instructions of

The terms of the undertakings also oblige the companies
to provide the Commission with regular and detailed
information in the form of a quarterly report of their
sales to the Community (or resales by any related parties
in the Community) of farmed Atlantic salmon. It is stipu-
lated in Clause E.10 of
the undertakings that such
reports are to be received by the Commission no later
than 30 days from the end of each quarter.

(13)

to Article 8(7) of

Pursuant
the basic Anti-Dumping
Regulation, the Commission performs on-spot verifica-
tion visits on a regular basis at the premises of selected
companies in order to determine the veracity and accu-
racy of
the information provided in their quarterly
reports.

2. Nordic Group ASA

(10) At one company visited, Nordic Group ASA (UT No 1/
111, TARIC Additional Code 8217), it was found that
the net weighted average sales prices for ‘presentation b’
salmon during one quarter of 2001 was significantly
below the MIP fixed in clause C.3 of its undertaking.

(14)

(11) As a breach of

the undertaking had occurred,

the
company was informed of the essential facts and consid-
erations on the basis of which it was intended to with-
draw the Commission's acceptance of its undertaking
and also that of a related company (see recital 18), and
to recommend the imposition of definitive anti-dumping
and countervailing duties. A period was granted within
which representations could be made both in writing

It was also stated that the company became suspicious of
the actions of the employee in question in the early part
of 2001 following unexpectedly low margins being
achieved on sales to the country in the Community for
which that person was responsible. Based on these suspi-
cions, the employee was confronted and placed under
‘administrative surveillance’
from mid-February 2001
until the person's final departure from the company on
31 March 2001. It was established, however, that during
this period of administrative surveillance, the employee
continued to make sales to the Community at prices
which contributed to the average price for the period
falling below the MIP.

It was the view of the company that it could not be held
responsible for the actions of its employee vis-à-vis the
non-respect of the MIP for the quarter in question. The
Commission does not share this view as it is considered
that a company must normally be held responsible for
its employees' actions carried out in the course of his or
her employment.
the company
detected problems with regard to its sales prices early in
the quarter and confronted the person concerned and
placed the employee under scrutiny. However, despite
this, the company continued to make sales at prices
which were not in conformity with the undertaking,
therefore the claim that force majeure occurred cannot be
accepted.

In the present case,

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(15)

(16)

(17)

(18)

It was also submitted that there should exist a reasonable
relationship between action taken by the Community
institutions within the framework of the present system
of price undertakings for farmed Atlantic salmon origi-
nating in Norway and the intended aims of
these
measures. In this regard it was argued that this was ‘…
probably a one-time incident …’ unique to Nordic
Group ASA, and that such a situation would be unlikely
to occur again in the salmon industry. In consequence,
the company submitted, that if the Commission were to
take no action with regard to the price violation, this
would not lead to a deterioration in the overall market
prices and therefore the effectiveness of the system of
undertakings
the product
concerned.

in force

currently

for

The Commission does not share this view and considers
that since an individual undertaking was offered by the
company concerned, it is obliged to respect that under-
taking and to take effective measures to ensure its
it is only through each company
compliance. Indeed,
observing its undertakings on an individual basis (or
having acceptance withdrawn if they do not), that the
collective system of undertakings can function. In addi-
tion, given the nature and transparency of the Commu-
nity market for salmon, the argument of Nordic Group
ASA that the actions of a single company in selling
below the MIP does not have a more general ‘knock on’
effect on market prices is not considered to be accurate.

The arguments presented by the company do not alter
the Commission's initial view that a breach of the under-
taking occurred as it failed to demonstrate that the viola-
tion was due to force majeure. In any event, the issue of
proportionality is not relevant to the decision to impose
a duty as any breach of the undertaking is sufficient
ground for its withdrawal

It is also noted that Nordic Group ASA has a fully owned
subsidiary company in Norway called Northern Seafood
A/S and that
this company also has an undertaking
accepted by the Commission (UT No 1/121, TARIC
Additional Code 8307). In order to make the action to
be taken against a company which has been found to
have committed a price violation effective, and to
prevent
in the future from simply channelling its
exports through its related company with an under-
is considered appropriate to withdraw the
taking,
undertakings of the violating company and its related
companies and to impose definitive anti-dumping and
countervailing duties against them. Nordic Group ASA
was advised of this but made no comment.

it

it

(19)

In the light of the above, the names of Nordic Group
ASA and Northern Seafood A/S should be deleted from

the Annex to Decision 97/634/EC which lists
companies from which undertakings are accepted.

the

3. Norexport A/S, Nor-Fa Fish AS and Norfra

Eksport A/S

(20)

It was also found that the net weighted average sales
prices for ‘presentation b’ salmon sold to the Community
during certain quarters of 2001 by three other Norwe-
gian companies, Norexport A/S (UT No 1/113, TARIC
Additional Code 8223), Nor-Fa Fish AS (UT No 1/191,
TARIC Additional Code 8102) and Norfra Eksport A/S
(UT No 1/116, TARIC Additional Code 8229) were also
below the MIP fixed in clause C.3 of their undertakings.

(21) As breaches of

the undertakings appeared to have
occurred, the companies were informed of the essential
facts and considerations on the basis of which the
Commission's acceptance of their undertakings might be
withdrawn (preliminary disclosure) and the imposition of
definitive anti-dumping and countervailing duties in their
place. A period was granted within which representa-
tions could be made both in writing and orally, however,
only one of these companies submitted comments and
requested a hearing.

(22) During the hearing, the company confirmed that the
weighted average sales price of presentation b salmon
for the quarter in question was below the MIP level. It
there were mitigating
was, however,
circumstances for this as the prices of its Norwegian
competitors were also, allegedly, below the MIPs and that
this was the only way it could sell to the Community.

claimed that

(23)

The fact that there are indications that other companies
may be breaching their undertakings does not mean that
a company has carte blanche not to respect its under-
taking. Accordingly a breach of the undertaking by the
company concerned has occurred.

(24) As concerns the other two companies which received
preliminary disclosure, one also confirmed that it had
sold salmon at prices below the MIPs and the other did
not respond.

(25) Accordingly, breaches of the undertakings were consid-
ered to have occurred and the three companies were
therefore informed of the essential facts and considera-
tions on the basis of which the Commission's acceptance
of their undertakings would be withdrawn and of the
recommendation to impose definitive anti-dumping and
countervailing duties against them (final disclosure). No
new facts or legal comments were received subsequent
to the final disclosure.

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(26) Accordingly, the names of Norexport A/S, Nor-Fa Fish
AS and Norfra Eksport A/S should be deleted from the
Annex to Decision 97/634/EC which lists the companies
from which undertakings are accepted.

it was argued, the European
December 1999) where,
Communities had taken a contradictory position to the
one being considered in the present case involving
Sangoltgruppa A/S.

4. Sangoltgruppa A/S

(33)

(27)

For one quarter of 2001, another Norwegian company,
Sangoltgruppa A/S (UT No 1/151, TARIC Additional
Code 8262) failed to present its sales report within the
due deadline. It should be noted that the company had
received a reminder by fax just prior to the deadline for
submitting the report that its report had not yet been
received by the Commission.

(28) As a breach of

the undertaking appeared to have
occurred, the company was informed of the essential
facts and considerations on the basis of which the
Commission's acceptance of its undertaking might be
withdrawn and a recommendation made to impose defi-
nitive anti-dumping and countervailing duties against it
(i.e. preliminary disclosure). The company was also
granted a period within which to make representations
subsequent to this disclosure both in writing and orally.

(29)

(30)

(31)

It was stated in writing that a change in the company's
ownership had occurred and that the new owners did
not realise that they had an obligation to report their
sales, however, no evidence was provided which showed
that the late submission of the report was caused by
reasons beyond the control of the company. It was there-
fore considered that the company had taken insufficient
steps to ensure compliance with its undertaking and that
a breach of the undertaking by Sangoltgruppa A/S had
occurred.

The company was informed of the essential facts and
considerations on the basis of which the Commission's
acceptance of its undertaking would be withdrawn (i.e.
final disclosure) and of the recommendation to impose
definitive anti-dumping and countervailing duties against
it and was granted a further period within which to
make representations subsequent to this disclosure.

The company subsequently reiterated that it had been
sold during 2001 by its owner (Company A), to another
Norwegian company (Company B). This was followed
later in 2001 by the re-sale of Sangoltgruppa A/S to
another company (Company C), which is related to
Company A.

(32) As Sangoltgruppa A/S was owned by Company A when
it failed to submit the report in time and that this breach
occurred before Sangoltgrupa A/S was purchased by its
current owner, it was claimed that the new owner should
not lose the benefit of the undertaking due to the failure
of the previous owner of the company to respect the
undertaking. In this regard, the company cited a case
held before a WTO Panel and the WTO Appellate Body
(US — CVD on UK bismuth steel, WT/DS138/R, 23

In this regard, it should be remembered that the price
undertaking in question was accepted from the limited
company, Sangoltgruppa A/S, which has a legal person-
ality, and not from Companies A, B or C. Indeed, whilst
it is a normal fact of commercial life that the ownership
of a limited liability company can change as different
shareholders buy or sell stakes in that company, despite
these changes in the shareholding, the legal identity of
the company remains the same. It is therefore the legal
person, Sangoltgruppa A/S, which has the obligation to
respect the undertaking, regardless of who constitutes
the shareholders of the company at any given time. As
concerns the argument that this approach is inconsistent
with the arguments made by the European Communities
in WTO case referred to above, it should be recalled that
the case in question involved the granting in the past of
aid to a State owned, nationalised company which was
then sold off to the private sector. It was argued by the
European Communities that a private purchaser of a
company at fair market value obtains no benefit from
aid previously granted to the seller and that any benefit
stream established for the purposes of allocating the
benefit granted to the previous owner ceases to apply. It
follows that any comparison of these circumstances to
the circumstances of the take-over of Sangoltgruppa A/S,
and its failure to respect the undertaking is incorrect.

(34) Moreover,

it should be stressed that if the company's
reasoning were to be considered as valid, this would
mean that the change of ownership of Sangoltgruppa A/
S, while not affecting its corporate name, was such as to
entail substantive changes which would clearly affect the
considerations on which the acceptance of the under-
taking was originally based.
In accordance with the
Commission's consistent practice in this respect, and
despite the absence of a change of name, the likely result
of such a conclusion would be that the supposedly ‘new’
company (i.e. under new ownership), could not continue
to keep the undertaking previously accepted by the
Commission, a result with which Sangoltgruppa A/S
would also presumably not have agreed.

(35)

The company then submitted that the wording of the
undertakings means that the Commission is not obliged
to impose anti-dumping and countervailing duties when-
ever there is a violation of a formal nature, as is the case
here, and that it has discretionary powers in this regard.
It was also argued that as the breach was of a minor
nature and that as ‘… no harm has been caused to the
Community industry as a result of this procedural viola-
tion’, the Commission's discretion should be exercised
and duties should not be imposed particularly as to do
so would be punitive in its view.

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(36)

It should first be pointed out that in accordance with
Article 8(7) of the basic Anti-Dumping Regulation and
Article 13(7) of the basic Anti-Subsidy Regulation, failure
to comply with the obligation to provide relevant infor-
mation (e.g. non-compliance with any of the reporting
requirements) ‘… shall be construed as a breach of the
undertaking’. Furthermore,
in accordance with Article
8(9) of the basic Anti-Dumping Regulation and Article
13(9) of the basic Anti-Subsidy Regulation, a definitive
duty shall be imposed, in case of a breach of the under-
taking. It is considered that these Articles underline the
‘stand alone’ importance of the reporting obligation. This
is further emphasised by the clear and precise language
of the undertakings themselves in which the reporting
obligation is set out.

(37)

In the present case, however, whilst it was not disputed
that the sales report was submitted after the due deadline
by Sangoltgruppa A/S, and whilst
force majeure was
claimed by the company as having occurred, no evidence
was provided which showed that the late receipt of the
report in question was caused by reasons beyond the
control of the company. It is therefore considered that
the conditions for applying the force majeure criteria not
have been met.

(38) As concerns the argument that formal violations (stem-
ming from failure to observe the reporting obligations)
are of a secondary nature to price violations,
the
Commission does not share this opinion. In particular in
a proceeding such as the present case where many indi-
vidual price undertakings are simultaneously in force,
the timely submission of undertaking reports by all the
parties concerned in the correct format is the key for
effective monitoring by the Commission.
In these
circumstances, compliance with the reporting formalities
must be regarded as forming part of the primary obliga-
tions of the undertakings, in so far as those formalities
are not only intended to simplify administrative proce-
dures, but are also necessary for the proper functioning
of the undertaking system as a whole.

(39)

the efficacity of

the undertakings

It follows with regard to the question of whether harm
has been done to the Community industry by the
company concerned that, as breaches of a formal nature
put
system into
jeopardy (a system set up to specifically defend the
Community salmon producers from injurious dumping
and subsidisation), the Commission must consider that
the violation is detrimental to those producers. In any
event, the supposed gravity of the breach or its conse-
quences for Community producers is not relevant to the
decision to impose a duty as any breach of the under-
taking is sufficient ground for its withdrawal.

(40) As concerns whether the reimposition of duties is ‘puni-
tive’, it should be recalled that undertakings should have
the same effect as duties in removing the injurious effects
of dumping or subsidisation. Accordingly, the reimposi-
tion of duties in case of a breach of an undertaking is
not a ‘punishment’, but a way of restoring and ensuring
the effectiveness of the anti-dumping and anti-subsidy
measures originally imposed.

(41)

(42)

(43)

In its submission,
the company also referred to the
action taken in Commission Decision 2002/157/EC (1)
whereby a new undertaking was accepted from a Norwe-
gian company (Gje-Vi AS) which had acceptance of its
original undertaking withdrawn in 1998, and Council
Regulation (EC) No 322/2002 (2) which exempted the
said company from the anti-dumping and anti-subsidy
duties.

It was argued that the circumstances surrounding the
acceptance of the new undertaking from this company
internal
(inter alia, changed circumstances, different
management structure and no reason to believe that the
same breach would re-occur if a new undertaking were
to be accepted) reflect the situation in Sangoltgruppa A/S
after its most recent change of ownership. Because of
these alleged parallels, it was submitted that there was
no need to withdraw acceptance of Sangoltgruppa A/S's
undertaking.

In this regard, it should be recalled that Gje-Vi AS had
requested a partial
interim review pursuant to Article
11(3) of the basic Anti-Dumping Regulation and Article
19(1) of the basic Anti-Subsidy Regulation and that the
Commission's decision as to whether or not acceptance
of another undertaking from that company would be
appropriate were based on the verified findings of that
review. In addition, the review in question was initiated
after a period of more than three years had elapsed since
acceptance of the original undertaking had been with-
drawn and that the company was able to prove that the
circumstances had changed and that it had introduced
new management controls, etc. (see Regulation (EC) No
322/2002, recitals 10 and following).

(44)

In the case of Sangoltgruppa A/S, no such review investi-
gation has been carried out and no reasonable time
period as required under the basic Anti-Dumping and
Anti-Subsidy Regulations has elapsed since the violation
occurred. Therefore, as the Commission is not in a posi-
tion to make any determination as to what the company
might or might not do in the future, the argument of the
company on this point must be rejected.

(45) Accordingly,

the name of

this company should be

deleted from the Annex to Decision 97/634/EC.

(1) OJ L 51, 22.2.2002, p. 32.
(2) OJ L 51, 22.2.2002, p. 1.

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5. Kr Kleiven & Co A/S, Seaco A/S and Mesan

(52)

Holding AS

(46)

Three other Norwegian companies with undertakings
namely Kr Kleiven & Co A/S (UT No 1/80, TARIC Addi-
tional Code 8182), Seaco A/S (UT No 1/157, TARIC
Additional Code 8268) and Mesan Holding AS (UT No
1/194, TARIC Additional Code A034), failed to present
their sales reports for one or more quarters of 2001. It
should be noted that all the companies had received
reminders by fax just prior to the deadline for submitting
the reports that their reports had not yet been received
by the Commission.

(47) As breaches of

their undertaking appeared to have
occurred, the companies were informed of the essential
facts and considerations on the basis of which the
Commission's acceptance of their undertakings might be
withdrawn and a recommendation made to impose defi-
nitive anti-dumping and countervailing duties against
them. The companies were also granted a period within
which to make representations subsequent to this disclo-
sure both in writing, and orally, however, none of them
responded.

(48)

(49)

In the absence of any information to the contrary,
breaches of the undertakings are therefore considered to
have occurred and, accordingly,
the companies were
informed of the essential facts and considerations on the
basis of which the Commission's acceptance of their
undertakings would be withdrawn and of the recommen-
dation to impose definitive anti-dumping and counter-
vailing duties against them. No responses were received
from any of the companies in this regard.

It is therefore considered appropriate to withdraw accep-
tance of the undertaking of these companies and to
impose definitive anti-dumping and countervailing duties
against them. Accordingly, the names of Kr Kleiven &
Co A/S, Seaco A/S and Mesan Holding AS should be
deleted from the Annex to Decision 97/634/EC.

6. Johan J. Helland A/S

(50) Another Norwegian company with an undertaking,
Johan J. Helland A/S (UT No 1/77, TARIC Additional
Code 8179), failed to present its sales reports for one
reporting period of 2001 within the due time limit.

(51) As a breach of

its undertaking appeared to have
occurred, the company was informed of the essential
facts and considerations on the basis of which the
Commission's acceptance of its undertakings might be
withdrawn and a recommendation made to impose defi-
nitive anti-dumping and countervailing duties against it.
The company was also granted a period within which to
make representations subsequent to this disclosure both
in writing and orally. The company made a written
submission, but did not request to be heard.

It was not disputed that the report was submitted late
but the company claimed that the late submission of the
report was caused due to internal problems, however, no
evidence was provided which demonstrated that these
reasons were
caused by circumstances beyond its
control. Consequently, a breach of its undertaking has
occurred.

(53)

It is therefore considered appropriate to withdraw accep-
tance of the undertaking of this company and to impose
definitive anti-dumping and countervailing duties against
it. Accordingly, the name of Johan J. Helland A/S should
also be deleted from the Annex to Decision 97/634/EC.

7. Oskar Einar Rydbeck

(54)

In order to allow the effective monitoring of the under-
takings accepted within the framework of the measures,
parties are required by Clause E.11 of their undertakings
to ‘… cooperate in providing whatever information is
considered necessary by the European Commission for
the purpose of ensuring compliance with this under-
taking …’.

(55)

In this regard, the Commission considers it necessary to
update its records periodically concerning parties in
Norway with undertakings and any relationships these
parties may have, directly or
indirectly, with other
parties in Norway and/or the European Union.

(56) Accordingly, a short questionnaire was sent to all parties
with undertakings requesting details of such relation-
ships. In view of the importance of this information to
the Commission, the parties were clearly warned that
non-submission of the information requested within the
deadline set would be considered as a breach of the
undertaking.
In such a case, and in accordance with
Article 8(9) of the basic Anti-Dumping Regulation and
Article 13(9) of
the basic Anti-Subsidy Regulation,
parties were advised that the Commission would propose
withdrawing acceptance of
and
imposing anti-dumping duties and countervailing duties
in their place.

their undertakings

(57)

In this regard, Oskar Einar Rydbeck, a sole proprietor
(UT No 1/198, TARIC Additional Code A050) failed to
submit at all the information requested. As a breach of
the undertaking appeared to have occurred, Mr Rydbeck
was informed of the essential facts and considerations on
the basis of which the Commission's acceptance of its
undertaking might be withdrawn and a recommendation
made to impose definitive anti-dumping and counter-
vailing duties against him. He was also granted a period
within which to make representations subsequent to this
disclosure both in writing, and orally, however, he did
not respond.

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Official Journal of the European Communities

L 240/57

the non-submission of

(58) As no evidence was provided by Mr Rydbeck which
showed that
the information
considered necessary by the Commission was caused by
reasons beyond his control, a breach of the undertaking
has therefore occurred. He was therefore informed of the
essential facts and considerations on the basis of which
the Commission's acceptance of his undertaking would
be withdrawn and of the recommendation to impose
definitive anti-dumping and countervailing duties against
it, however, no response was received.

It is therefore considered appropriate to withdraw accep-
tance of the undertaking of this exporter and to impose
definitive anti-dumping and countervailing duties against
it. Accordingly, the name of Oskar Einar Rydbeck should
also be deleted from the Annex to Decision 97/634/EC.

It should also be noted that the Norwegian company
Norexport A/S mentioned in recitals 20 and following
also failed to fulfil
its undertaking obligations by not
providing the information requested concerning relation-
ships with other parties. Accordingly, in addition to the
breaches set out concerning price violations, Norexport
A/S is also considered to have breached its undertaking
in respect of Clause E.11 thereof as well.

alia, to respect the minimum import prices laid down
therein and to provide the Commission with regular and
detailed information concerning their exports to the
Community.

(65)

the undertakings offered by the

Since
companies
concerned can be monitored by the Commission in the
same way as those already in place, and they eliminate
the injurious effects of dumping and subsidisation, the
offers are considered acceptable. The companies have all
been informed of the essential facts, considerations and
obligations upon which this acceptance is based.

(66) Notwithstanding the fact that the anti-dumping and anti-
subsidy measures are currently subject to an interim
review, the names of Athena AS, Norsk Havfisk AS,
Rodé Vis International AS, Seaborn AS, Triton AS,
Nordlaks Produkter AS and Codfarms AS should never-
theless be added in the meantime to the list of compa-
nies from which undertakings are accepted in the Annex
to Decision 97/634/EC.

C. NEW EXPORTERS AND CHANGES OF NAME

1. New exporters

(67)

Since the original imposition of definitive anti-dumping
and countervailing duties, certain Norwegian companies
have made themselves known to the Commission,
claiming to be new exporters, and requested, in accor-
dance with Article 2 of Regulation (EC) No 772/1999 in
conjunction with Article 11(4) of Regulation (EC) No
384/96 and Article 20 of Regulation (EC) No 2026/97,
that the exemption to the duties be extended to them.

In this regard, seven such exporters, Athena Seafoods
AS, Norsk Havfisk A/S, Rodé Vis International AS,
Seaborn AS, Triton AS, Nordlaks Produkter AS and
Codfarms AS all demonstrated that
they had not
exported the product concerned to the Community
during the investigation period which led to the current
anti-dumping and countervailing duties.

The companies also showed that they are not related to
any of the companies in Norway which are subject to
anti-dumping and countervailing duties. In addition, they
provided evidence that they had entered into irrevocable
contractual obligations to export a significant amount of
the product concerned to the Community.

(64)

The companies have offered undertakings which are
identical to those previously accepted from other Norwe-
gian companies exporting farmed Atlantic salmon origi-
nating in Norway. By doing so, they have all agreed, inter

2. Changes of name

Four Norwegian exporters with undertakings, Borkowski
& Rosnes A/S (UT No 1/26, TARIC Additional Code
8124), Fjord Seafood ASA (UT No 1/43, TARIC Addi-
tional Code 8140), Sea-Bell A/S (UT No 1/156, TARIC
Additional Code 8267) and Astor A/S (UT No 1/22,
TARIC Additional Code 8120), advised the Commission
that the groups of companies to which they belonged
had been re-organized and that other companies within
their respective groups were now responsible for exports
of salmon to the Community. Borkowski & Rosnes A/S
therefore requested that its name be replaced by that of
Rossa Salmon AS on the list of companies from which
undertakings are accepted in the Annex to Decision 97/
634/EC, and the names of Fjord Seafood ASA, by that of
Fjord Marin Sales AS, Sea-Bell A/S by that of Sea Bell
Salmon AS and Astor A/S by that of Midnor Processing
AS on the same list.

(68)

(69)

The Commission considers after verification that
the
requests are all acceptable since the modifications do not
entail any substantive changes which would affect the re-
assessment of dumping or subsidisation, nor do they
affect any of the considerations on which the acceptance
of the undertaking was based.

Consequently, the names of Borkowski & Rosnes A/S,
Fjord Seafood ASA, Sea-Bell A/S and Astor A/S should
be changed to Rossa Salmon AS, Fjord Marin Sales AS,
Sea Bell Salmon AS and Midnor Processing AS respec-
tively on the list of companies from which undertakings
are accepted in the Annex to Decision 97/634/EC.

(59)

(60)

(61)

(62)

(63)

L 240/58

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Official Journal of the European Communities

7.9.2002

(70)

(71)

(72)

(73)

D. AMENDMENT OF THE ANNEX TO DECISION

97/634/EC

In view of all the preceding, the list of companies from
which undertakings are accepted in the Annex to Deci-
sion 97/634/EC should be amended accordingly.

The Advisory Committee has been consulted on all of
the above and has raised no objections.

For the sake of clarity, an updated version of the Annex
to that Decision is published herewith, showing all the
exporters whose undertakings are currently in force.

In parallel to this Decision, the Council, by Regulation
(EC) No 1593/2002 (1) has also withdrawn the exemp-
tion from the anti-dumping and anti-subsidy duties
granted to Nordic Group ASA, Northern Seafood A/S,
Norexport A/S, Nor-Fa Fish AS, Norfra Eksport A/S,
Sangoltgruppa A/S, Kr Kleiven & Co A/S, Seaco A/S,
Mesan Holding AS, Johan J. Helland A/S and Oskar Einar
Rydbeck; granted exemption from those duties to Athena
Seafoods AS, Norsk Havfisk A/S, Rodé Vis International
AS, Seaborn AS, Triton AS, Nordlaks Produkter AS and
Codfarms AS, and changed the names of Borkowski &
Rosnes A/S, Fjord Seafood ASA, Sea-Bell A/S and Astor
A/S to Rossa Salmon AS, Fjord Marin Sales AS, Sea Bell
Salmon AS and Midnor Processing AS respectively, by
amending the Annex to Council Regulation (EC) No
772/1999.

Regulation),
retroactively in this particular case,

it has been decided not to impose duties

HAS DECIDED AS FOLLOWS:

Article 1

1.
The undertakings offered by the following companies:
Athena Seafoods AS, Norsk Havfisk A/S, Rodé Vis International
AS, Seaborn AS, Triton AS, Nordlaks Produkter AS and
Codfarms AS in connection with the anti-dumping and anti-
subsidy proceedings concerning imports of
farmed Atlantic
salmon originating in Norway are hereby accepted.

2.
The acceptance of undertakings offered by the following
exporters: Nordic Group ASA, Northern Seafood A/S, Norex-
port A/S, Nor-Fa Fish AS, Norfra Eksport A/S, Sangoltgruppa
A/S, Kr Kleiven & Co A/S, Seaco A/S, Mesan Holding AS, Johan
J. Helland A/S and Oskar Einar Rydbeck in connection with the
anti-dumping and anti-subsidy proceedings concerning imports
of farmed Atlantic salmon originating in Norway is hereby
withdrawn.

Article 2

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

E. RETROACTIVE COLLECTION OF DUTIES

Article 3

(74) As mentioned previously,

imports of

the product
to registration by
concerned are
thus allowing the possibility of
customs authorities,
retroactive collection of anti-Dumping and anti-subsidy
duties in cases of breach or withdrawal of undertakings.

currently subject

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

(75) However, as the breaches of the undertaking by the
various companies set out in this Decision all occurred
prior to the entry into force of the Registration Regula-
tion, as extended (and were identified by the Commission
with final disclosure thereof notified to the companies
concerned also before entry into force of the Registration

Done at Brussels, 14 August 2002.

For the Commission

Pascal LAMY

Member of the Commission

(1) See page 22 of this Official Journal.

7.9.2002

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Official Journal of the European Communities

L 240/59

ANNEX

LIST OF COMPANIES FROM WHICH UNDERTAKINGS ARE ACCEPTED

UT No

Company name

TARIC
additional code

3

7

8

11

13

15

16

17

20

21

22

24

26

27

31

32

33

35

39

41

42

43

44

46

47

48

50

51

Rosfjord Seafood AS

Aqua Export A/S

Aqua Partner A/S

Arctic Group International

Artic Superior A/S

A/S Aalesundfisk

Austevoll Eiendom AS

A/S Keco

A/S Refsnes Fiskeindustri

A/S West Fish Ltd

Midnor Processing AS

Atlantic Seafood A/S

Rossa Salmon AS

Brødrene Aasjord A/S

Christiansen Partner A/S

Clipper Seafood A/S

Coast Seafood A/S

Dafjord Laks A/S

Domstein Fish A/S

Ecco Fisk & Delikatesse

Edvard Johnsen A/S

Fjord Marin Sales AS

Euronor AS

Fiskeforsyningen AS

Fjord Aqua Group AS

Fjord Trading Ltd AS

Fossen AS

Fresh Atlantic AS

8325

8100

8101

8109

8111

8113

8114

8115

8118

8119

8120

8122

8124

8125

8129

8130

8131

8133

8136

8138

8139

8140

8141

8143

8144

8145

8147

8148

L 240/60

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Official Journal of the European Communities

7.9.2002

UT No

Company name

TARIC
additional code

52

56

58

61

62

66

67

72

75

76

79

82

83

85

87

92

96

98

100

101

104

105

107

108

112

114

115

119

120

122

123

124

126

Fresh Marine Company AS

Gje-Vi AS

Grieg Seafood AS

Hallvard Lerøy AS

Fjord Seafood Måløy A/S

Marine Harvest Norway AS

Hydrotech gruppen AS

Inter Sea AS

Janas A/S

Joh. H. Pettersen AS

Karsten J. Ellingsen AS

Labeyrie Norge AS

Lafjord Group AS

Leica Fiskeprodukter

Lofoten Seafood Export AS

Marine Seafood AS

Memo Food AS

Misundfisk AS

Naco Trading AS

Fjord Seafood Midt-Norge A/S

Nergård AS

Nils Williksen AS

Nisja Trading AS

Nor-Food AS

Nordreisa Laks AS

Norfi Produkter AS

Norfood Group AS

Norsk Akvakultur AS

Norsk Sjømat AS

Nortrade AS

Norway Royal Salmon Sales AS

Norway Royal Salmon AS

Frionor AS

8149

8153

8300

8303

8304

8159

8428

8174

8177

8178

8181

8184

8185

8187

8188

8196

8200

8202

8206

8207

8210

8211

8213

8214

8218

8227

8228

8232

8233

8308

8309

8312

8314

7.9.2002

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Official Journal of the European Communities

L 240/61

UT No

Company name

TARIC
additional code

128

137

140

141

142

144

145

146

147

148

153

154

155

156

158

160

161

162

164

165

167

168

172

174

175

176

178

180

182

183

188

189

190

Norwell AS

Pan Fish Sales AS

Polar Salmon AS

Prilam Norvège AS

Pundslett Fisk

Olsen Seafood AS

Marine Harvest Rogaland AS

Rørvik Fisk- og fiskematforretning AS

Saga Lax Norge AS

Prima Nor AS

Scanfood AS

Sea Eagle Group AS

Sea Star International AS

Sea Bell Salmon AS

Seacom AS

Seafood Farmers of Norway Ltd AS

Seanor AS

Sekkingstad AS

Sirena Norway AS

Kinn Salmon AS

Fjord Seafood Sales AS

SMP Marine Produkter AS

Stjernelaks AS

Stolt Sea Farm AS

Storm Company AS

Superior AS

Terra Seafood AS

Timar Seafood AS

Torris Products Ltd AS

Troll Salmon AS

Vikenco AS

Wannebo International AS

West Fish Norwegian Salmon AS

8316

8242

8247

8248

8251

8254

8256

8257

8258

8259

8264

8265

8266

8267

8269

8271

8272

8273

8275

8276

8278

8279

8283

8285

8286

8287

8289

8294

8298

8317

8322

8323

8324

L 240/62

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Official Journal of the European Communities

7.9.2002

UT No

Company name

TARIC
additional code

193

195

196

197

199

200

201

202

203

204

205

206

207

208

209

210

211

212

213

214

F. Uhrenholt Seafood Norway AS

Polaris Seafood AS

Scanfish AS

Normarine AS

Emborg Foods Norge AS

Helle Mat AS

Norsea Food AS

Salmon Company Fjord Norway AS

Stella Polaris AS

First Salmon AS

Norlaks A/S

Atlantis AS

Cape Fish AS

Athena Seafoods AS

Norsk Havfisk AS

Rodé Vis International AS

Seaborn AS

Triton AS

Nordlaks Produkter AS

Codfarms AS

A033

A035

A036

A049

A157

A158

A159

A160

A161

A205

A206

A257

A258

A379

A380

A381

A382

A383

A386

A400