Council Regulation (EC) No 1675/2003 of 22 September 2003 amending Regulation (EC) No 1995/2000 imposing, inter alia, a definitive anti-dumping duty on imports of solution of urea and ammonium nitrate originating in Algeria, Belarus, Lithuania, Russia and Ukraine
Date: 2003-09-22
Institutions: Council of the European Union
Subjects: Algeria, Belarus, Lithuania, Russia, Ukraine, anti-dumping duty, chemical fertiliser, import, originating product

L 238/4

EN

Official Journal of the European Union

25.9.2003

COUNCIL REGULATION (EC) No 1675/2003

of 22 September 2003

amending Regulation (EC) No 1995/2000 imposing, inter alia, a definitive anti-dumping duty on
imports of solution of urea and ammonium nitrate originating in Algeria, Belarus, Lithuania, Russia
and Ukraine

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), herein-
after referred to as ‘the basic Regulation’, and in particular
Article 8 and Article 11(3) thereof,

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

Whereas:

(1)

(2)

(3)

A. EXISTING MEASURES

to Regulation (EC) No 1995/2000 (2),
the
Pursuant
Council
imposed a definitive anti-dumping duty on
imports of solutions of urea and ammonium nitrate,
hereinafter referred to as ‘UAN’, originating, inter alia, in
Lithuania. The form of the duty set out in that Regula-
tion was a specific duty of EUR 3,98 per tonne for all
Lithuanian exporting producers.

B. REQUEST FOR A REVIEW

for a partial

In September 2002, a request
interim
review pursuant to Article 11(3) of the basic Regulation
was lodged by SC Achema, hereinafter referred to as ‘the
applicant’, an exporting producer
in Lithuania. The
request was limited in scope to the examination of the
form of the measure and, in particular, to the examina-
tion of the acceptability of an undertaking offered by the
applicant.

the

framework

The request was based on the grounds that the applicant
committed itself to a price discipline in respect of UAN
within
anti-dumping
of
proceeding concerning urea and presented evidence that
it was ready to provide, also in the framework of the
UAN proceeding, an undertaking of a similar nature,
which would remove the injurious effects of dumping
and could be monitored.

another

(4)

(5)

(6)

(7)

(8)

(9)

(10)

after

Having determined,
consulting the Advisory
Committee, that sufficient evidence existed for the initia-
tion of a partial
the Commission
interim review,
published a notice in the Official Journal of the European
Communities (3) and commenced an investigation.

C. PROCEDURE

The Commission officially advised the authorities of the
exporting country of the initiation of the interim review
and gave all parties directly concerned the opportunity
to make their views known in writing and to request a
hearing. The European Fertilizer Manufacturers Associa-
tion, on behalf of the European complainant producers
investigation, hereinafter referred to as
of the original
‘the Community industry’, requested, within the time
limits, to take part in this investigation as an interested
party.

The applicant made the Commission a formal offer of
price undertaking.

The Commission further sought and verified all
the
information it deemed necessary for the purpose of
examining the acceptance of this undertaking and all the
aspects relating to the monitoring of it. A verification
visit was carried out at the premises of the applicant.

applicant

The
and the Community industry were
informed of the facts and considerations of the investiga-
tion and were given an opportunity to comment.

D. INVESTIGATION

The applicant exports three kinds of nitrogen fertilisers
to the EU: urea, ammonium nitrate, hereinafter referred
to as ‘AN’, and UAN. Urea and UAN originating in
Lithuania are subject to anti-dumping measures in the
form of specific duties, imposed by Regulations (EC) No
1995/2000 and (EC) No 92/2002 (4) respectively.

in order

Pursuant to Commission Decision 2002/498/EC (5), an
undertaking offered by the applicant concerning imports
of urea was accepted. By this undertaking, the applicant
to avoid cross-compensation via
accepted,
exports of other fertilisers, to respect a pricing discipline
and to report exports to the Community for its other
two fertilisers, i.e. the ammonium nitrate and UAN as
well. The applicant's exports of UAN were as a result
found to be subject to both a minimum import price
and an anti-dumping duty (by nature of Regulation (EC)
No 1995/2000).

(1) OJ L 56, 6.3.1996, p. 1. Regulation as last amended by Regulation

(EC) No 1972/2002 (OJ L 305, 7.11.2002, p. 1).

(2) OJ L 238, 22.9.2000, p. 15.

(3) OJ C 314, 17.12.2002, p. 2.
(4) OJ L 17, 19.1.2002, p. 1.
(5) OJ L 168, 27.6.2002, p. 51.

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Official Journal of the European Union

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(11)

(12)

(13)

The undertaking offered by the applicant in the frame-
work of the current investigation enables its exports of
UAN to be subject to a sole minimum import price,
hereinafter referred to as ‘MIP’. The MIP is at a level that
eliminates the injurious effects of dumping found in the
investigation. The reporting obligations are as
original
strict as for urea, thus allowing an efficient monitoring
in conjunction with the undertaking on urea. In addi-
tion, a clause on the breach of the relationship of trust
between the Commission and the applicant guarantees
the efficiency of both undertakings for urea and UAN.

The Community industry opposed the acceptance of an
undertaking. It alleged that the actual quantities of UAN
exported by the applicant for the period 2002 could not
be supplied by its effective production capability. The
Commission sought from the applicant, and the latter
provided, detailed information concerning production
capacity, sales and purchases of the three nitrogen fertili-
sers, i.e. urea, AN and UAN, for the last three calendar
years. All of this information was verified on the spot
and no irregularity of the nature alleged by the Commu-
nity industry was found. Thus, the allegations of the
Community industry were considered to be unfounded.

anti-dumping cases

The Community industry further claimed that,
in line
with the principle of non-discrimination, the applicant
should not be given more favourable treatment than
other countries found to be dumping, since in the great
concerning
recent
majority of
nitrogen fertilisers,
the Community has consistently
argued that for reasons of efficiency and to avoid manip-
ulation and malpractice, specific anti-dumping duties are
the most appropriate measures to be applied. Regarding
the discriminatory treatment,
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 the basic Regulation. Thus, undertaking offers can be
accepted only in cases where they have the effect of
eliminating the injurious dumping and allow effective
monitoring. In this respect,
it is noted that the main
problem for accepting undertakings from other countries
was the risk of circumvention in the form of cross-
compensation with other products. However, in this case
this risk is seriously limited, since the applicant has
offered and has been respecting MIPs for the other fertili-
sers that it exports to the Community with which cross-
compensation could arguably take place. Regarding effi-
in
ciency and effective monitoring of undertakings
respect of similar cases, the experience already obtained
from two undertakings concerning urea (one from a
Bulgarian exporting producer and one from the appli-
cant) and one concerning UAN (from an Algerian
exporting producer), which have been in place for
certain time, did not indicate that they had been ineffi-
cient.
the
Commission, during the on-the-spot visit at the premises
of the applicant, verified all the reports submitted by it
in the framework of its undertaking for urea and did not

it should be noted that

In this respect,

(14)

(15)

(16)

find any irregularity, manipulation or malpractice.
Therefore, this claim was rejected.

Finally, the Community industry claimed that any price
undertaking should stipulate both an ex-works and a cif
frontier level in order for all normal costs between ex-
works and cif frontier to be accounted for. Regarding
this claim, it is noted that the MIP offered by the appli-
cant is based on an ex-works level and that the applicant
is obliged to report detailed costs associated with its
exports when made at a different level (i.e. cif, fob, etc.).
This means that indeed all costs between ex-works and
cif level will be accounted for when sales are made at cif
the claim made by the Community
level. Therefore,
industry was rejected.

E. UNDERTAKING

In view of the foregoing, the offer of an undertaking was
accepted by the Commission in Decision 2003/671/
EC (1).

In order to ensure the effective respect and monitoring
of the undertaking, when the request for release for free
circulation pursuant to the undertaking is presented to
the relevant customs authority, exemption from the duty
should be conditional on presentation of a commercial
invoice containing the information listed in the Annex
to Commission Regulation (EC) No 617/2000 (2), which
is necessary for customs to ascertain that shipments
correspond to the commercial documents at the required
level of detail. Where no such invoice is presented, or
when it does not correspond to the product concerned
the appropriate rate of anti-
presented to customs,
dumping duty should instead be payable.

(17)

It should be noted that in the event of a breach or with-
drawal of the undertaking or a suspected breach, an
anti-dumping duty may be imposed, pursuant to Article
8(9) and (10) of the basic Regulation.

(18)

In view of the acceptance of the undertaking offer, it is
necessary to amend Regulation (EC) No 1995/2000
accordingly.

F. MODIFICATION OF NAME AND ADDRESS

(19)

this

course of

investigation,

the applicant
In the
informed the Commission that it had changed its name
and address. The name change was due to the fact that
the previous company form of the applicant, i.e. Joint
Stock Company, no longer exists in Lithuania. The new
name of the applicant is Stock Company Achema. The
change of its address was due to the change in the
Lithuanian postal system.

(1) See page 35 of this Official Journal.
(2) OJ L 75, 24.3.2000, p. 3.

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(20)

The Commission has examined this information, which
demonstrated that all the applicant's activities linked to
the manufacturing, sales and exports of fertilisers (AN,
UAN and urea) are unaffected by these changes,

from the anti-
acting as an importer shall be exempt
dumping duty imposed by Article 1 provided that such
imports are imported in conformity with paragraph 2 of
this Article.

HAS ADOPTED THIS REGULATION:

Article 1

Regulation (EC) No 1995/2000 is hereby amended as follows:

1. In Article 1(2),

the row concerning Lithuania shall be

replaced by the following:

‘Lithuania

All companies

EUR 3,98

A999’

2. Article 2(1), shall be replaced by the following:

‘1.
Imports declared for release into free circulation under
the following TARIC additional codes which are produced
and directly exported (i.e. shipped and invoiced) by a
company named below to a company in the Community

Country

Company

TARIC additional
code

Algeria

Lithuania

Fertalge Industries spa
12, Chemin AEK Gadouche
Hydra
Alger

Stock Company Achema
Jonalaukio k.,Ruklos sen.,
Jonavos r.
LT-5005

A107

A375’

Article 2

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

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 22 September 2003.

For the Council

The President

R. BUTTIGLIONE