Proposal for a Council Regulation imposing definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of large rainbow trout originating in Norway and the Faeroe Islands
Date: 2004-02-18
Institutions: European Commission
Subjects: Faroes, Norway, anti-dumping duty, import, originating product, sea fish

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 18.2.2004 
COM(2004) 117 final 

Proposal for a 

COUNCIL REGULATION 

imposing definitive anti-dumping duty and collecting definitively the provisional duty 
imposed on imports of large rainbow trout originating in Norway and the Faeroe 
Islands 

(presented by the Commission) 

EN 

   EN 

 
 
 
  
EXPLANATORY MEMORANDUM 

The  proceeding  was  initiated  by  a  notice  published  in  the  Official  Journal  of  the  European 
Communities of 19 December 2002. 

Investigations were carried out at the premises of the exporting producers, related importers in 
the  Community,  and  Community  producers.  This  showed  that  the  Community  industry 
suffered injury from dumped imports originating in Norway and the Faeroe Islands. 

The examination of all interests involved, in particular that of the unrelated importers, users 
and  consumers,  led  to  the  conclusion  that  it  is  not  against  the  Community  interest  to  take 
measures. 

The  measures  proposed  are  definitive  ad  valorem  duties  to  be  applied  on  imports  of  large 
rainbow trout originating in Norway and the Faeroe Islands ranging between 19,9 and 54,4%. 

Member  States  were  consulted  on  the  Commission’s  proposal:  9  agreed,  3  opposed  on  the 
grounds of doubts about standing and Community interest and  3 abstained. 

It  is  therefore  proposed  that  the  Council  adopt  the  attached  Regulation  which  should  be 
published  in the Official Journal of the European Union no later than 18 March 2004. 

2 

 
 
  
 
Proposal for a 

COUNCIL REGULATION 

imposing definitive anti-dumping duty and collecting definitively the provisional duty 
imposed on imports of large rainbow trout originating in Norway and the Faeroe 
Islands 

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  EC  (the  basic  Regulation)1,  in 
particular Article 9 thereof, 

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

Whereas: 

A. Provisional measures 

(1) The  Commission,  by  Regulation  (EC)  No  1628/20032  (the  provisional  Regulation) 
imposed a provisional anti-dumping duty on imports of large rainbow trout falling within CN 
codes 0302 11 20, 0303 21 20, 0304 10 15 and 0304 20 15, originating in Norway and the 
Faeroe Islands. 

(2) It  is  recalled  that  the  investigation  of  dumping  and  injury  covered  the  period  from  1 
October 2001 to 30 September 2002 (investigation period or IP). The examination of trends 
relevant for the injury analysis covered the period from 1 January 1999 to 30 September 2002 
(analysis period). 

B. Subsequent procedure 

(3)  Following  the  imposition  of  provisional  duties  on  imports  of  large  rainbow  trout 
originating in Norway and the Faeroe Islands, some interested parties submitted comments in 
writing. The parties who so requested were also granted an opportunity to be heard orally. 

(4)  All parties were informed of the essential facts and considerations on the basis of which it 
was  intended  to  recommend  the  imposition  of  definitive  anti-dumping  duties  and  the 
definitive collection of amounts secured by way of provisional duties. They were also granted 
a period within which they could make representations subsequent to this disclosure. 

1 

2 

OJ  L  056,  06.3.1996,  p.1,  as  last  amended  by  Regulation  (EC)  No  1972/2002  (OJ  L  305,  7.11.2002, 
p.1). 
OJ L 232, 18.9.2003, p.29, as last amended by Regulation (EC) No 117/2004 (OJ L 17, 24.1.20004   

3 

 
 
  
 
                                                 
(5)  The oral and written comments submitted by the interested parties were considered and, 
where appropriate, the definitive findings have been changed accordingly.  

(6) The Commission continued to seek and verify all information it deemed necessary for the 
definitive  findings.  In  addition  to  the  verification  visits  undertaken  at  the  companies 
mentioned  in  recital  6  of  the  provisional  Regulation,  it  should  be  noted  that  after  the 
imposition of provisional measures, on-spot verification visits were carried out at the premises 
of the following companies and Associations: 

-Federation of European Aquaculture Producers (FEAP), Boncelles, Belgium 
-Syndicat national des industries du saumon et de la truite fumés, Paris, France 
-P/F PRG Export and its related producer P/F Luna, Gøta, Faeroe Islands 
-P/F Vestsalmon and its related producer P/F Vestlax, Kollafjørður, Faeroe Islands 
-P/F Bakkafrost, Glyvrar, Faeroe Islands 
-P/F Faeroe Salmon, Klaksvik, Faeroe Islands 
-P/F Faeroe Seafood, Torshavn, Faeroe Islands 
-P/F Landshandilin, Torshavn, Faeroe Islands 
-P/F Navir, Argir, Faeroe Islands 
-P/F Viking Seafood, Strendur, Faeroe Islands 

(7)  Some parties argued that the selected IP was not appropriate as the prices were extremely 
low during that period and have since recovered. In this respect, it should be recalled that, as 
per  Article  6(1)  of  the  basic  Regulation,  “for  the  purpose  of  a  representative  finding,  an 
investigation period shall be selected which, in the case of dumping shall, normally, cover a 
period of not less than six months immediately prior to the initiation of the proceeding”. In 
other  words,  the  IP  is  basically  determined  by  the  date  of  initiation.  However,  it  is  also 
recalled  that  in  line  with  usual  Community  practice,  the  IP  concerning  dumping  had  a 
duration of one year. This period which is usually long enough to cover also seasonal changes 
in  demand  and  thus  ensuring  a  representative  finding,  in  particular  by  excluding  that  short-
lived fluctuations on the Community market or on the home markets of the exporting country 
carry  a  disproportional  overweight in  the  findings.  Article  6(1)  of  the  basic  Regulation  also 
sets  the  rules  under  which  circumstances  occurring  after  the  IP  can  be  taken  into  account. 
Accordingly,  “information  relating  to  a  period  subsequent  to  the  investigation  period  shall, 
normally,  not  be  taken  into  account”.  In  line  with  consistent  Community  practice,  this  has 
been interpreted as meaning that events relating to a period subsequent to the IP can only be 
taken  into  account  if  they  are  manifest,  undisputed  and  lasting.  Nothing  found  in  this 
investigation  suggests  that  the  data  relating  to  a  period  after  the  initiation  are  more 
representative than those relating to the IP. Events before the IP are in any event taken into 
account in the analysis period. The argument was therefore rejected.    

C. Product concerned and like product 

(8) The Norwegian exporting producers and the Norwegian Ministry of Fisheries argued that 
fresh/chilled and frozen trout should not be considered as like products because they do not 
share the same physical characteristics since frozen trout is a processed product using fresh as 
its raw material. They further claimed that frozen trout competes only to a limited degree with 
fresh  trout  and  is  to  a  large  extent  intended  for  different  markets  than  the  fresh  products.  It 
was also noted that authorities in the United States of America (USA) have consistently not 
included  frozen  products  in  the  context  of  antidumping  proceedings  concerning  salmon 
originating  in  Norway.  Similarly,  they  submitted  that  in  the  recent  antidumping  proceeding 
concerning  salmon  originating  in  Norway,  the  Faeroes  Islands  and  Chile,  the  Community 
Institutions found that frozen fillets from Chile competed with fresh salmon products from the 

4 

 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
Community industry only to a limited degree. On the basis of these arguments they requested 
that frozen whole fish and fillets be excluded by the proceeding.  

(9) In this respect it should be noted that in assessing whether the product concerned should 
be  deemed  to  be  alike  to  large  rainbow  trout  produced  in  the  Community,  it  was  initially 
considered whether the various types of and presentations of large rainbow trout, i.e. fillets or 
whole  fish,  fresh  or  frozen,  shared  the  same  basic  physical,  technical  and/or  chemical 
characteristics.  In  this  respect  it  was  considered  that,  in  contrast  to  procedures  such  as 
smoking  or  marinating,  the  freezing  of  large  rainbow  trout  does  not  alter  the  basic 
characteristics  of  the  product,  but  solely  allows  its  storage  for  a  deferred  consumption. 
Moreover, the present investigation has established that fresh and frozen large rainbow trout 
are  interchangeable.  In  addition,  in  the  recent  investigation3  concerning  salmon  where  a 
similar  argument  was  made,  it  was  determined  that  the  product  concerned  included  whole 
fish, gutted fish and various types of portion fillets, whether fresh, chilled or frozen and that 
such presentations of salmon constituted a single product which itself was deemed to be alike 
in  all  respects  to  that  produced  by  the  Community  producers  and  sold  in  the  Community 
market,  and  thus  this  case  does  not  support  the  submission  made.  Finally,  arguments 
concerning  practice  in  the  USA  were  not  considered  relevant  in  the  context  of  this 
investigation,  since  the  product  scope  of  the  anti-dumping  investigations  carried  out  by  the 
USA authorities was different. On the basis of the above, the request that frozen whole fish 
and fillets should be excluded from the proceeding could not be accepted.  

(10)  The  same  parties  also  argued,  that  live  trout  should  not  be  covered  by  the  product 
concerned  that  producers  of  live  trout  should  not  be  considered  for  the  definition  of  the 
Community  industry,  and  that  producers  of  trout  should  be  distinguished  from  companies 
involved in the slaughtering, packing, freezing and filleting of fish. In this respect it should be 
noted that live trout is not covered by the investigation and thus not accounted in for the total 
production  of  the  product  concerned  in  the  Community.  Furthermore,  live  trout  is  indeed 
neither the product concerned nor are producers of live trout included in the definition of the 
Community industry.  However, in respect of the submission that the trout growers should be 
distinguished, it was established that all the sampled co-operating producers included in the 
definition of the Community industry grow the fish and then slaughter it and pack it, or fillet 
it. In some cases they further process it and/or freeze it. This distinction between producing 
companies and processing companies does therefore not exist in the Community industry and 
the argument was thus rejected. 

(11) 
It  was  further  argued  that  part  of  the  production  of  large  rainbow  trout  in  the 
Community  is  destined  for  producing  roe,  and  that  fish  grown  to  maturity  to  this  end 
constitutes a product of a much inferior quality and therefore can not be considered as alike to 
the  product  concerned.  It  was  also  submitted  in  this  regard  that  the  basic  physical 
characteristics change significantly because of lower fat content and the colour of flesh of the 
fish  matured  for  producing  roe.  In  this  respect,  it  should  be  firstly  noted  that  the  alleged 
changes  in  fat  content  and  the  colour  of  flesh  are  only  significant  when  the  fish  is  fully 
matured,  but  not  before.  The  fish  is,  however,  slaughtered  before  the  full  maturity,  and 
accordingly the quality of the fish is not affected to that extent that it cannot be sold on the 
market for human consumption. In this respect, it should be further noted that fully matured 
trout  also  produces  lower  quality  roe.  For  that  reason,  there  is  no  added  value  for  growing 
trout to full maturity, even for producing roe. Accordingly, the fish grown to lesser than full 
maturity and producing roe as a by-product can therefore be sold on the market at prices equal 

3 

OJ L 133, 29.5.2003, p. 1. 

5 

 
 
  
 
                                                 
or lower to non mature trout, depending on its stage of maturity and on the market conditions. 
Therefore,  allowing  fish  mature  does  not  alter  its  basic  physical  characteristics  unless  full 
maturity is reached. This latter event, is however, not in the interest of growers as explained 
above. As for the differences in quality these are duly taken into consideration in determining 
the different types of fish subject to the investigation and as such were accounted for in the 
dumping calculations and in the injury assessment. The argument was therefore rejected. 

In  the  absence  of  any  other  information  submitted  by  interested  parties,  the 

(12) 
conclusions drawn in recitals 9 and 10 of the provisional Regulation are hereby confirmed. 

D. Dumping 

1. Claims made by parties in Norway and the Faeroe Islands 

(13)  A  number  of  parties  in  both  Norway  and  the  Faeroe  Islands  argued  that,  since  their 
production  of  large  rainbow  trout  was  geared  mainly  towards  the  supply  of  the  Japanese 
market,  the  dumping  calculations  did  not  take  sufficient  account  of  alleged  physical 
differences between the quality types sold to that market and those sold to the European and 
domestic market. They questioned the appropriateness of allocating costs of production on the 
basis  of  turnover.  Instead  they  claimed  that  the  Commission  should  have  accepted  the 
calculations submitted in the questionnaires, whereby the cost of production for non-superior 
quality  grades  was  reduced  by  the  absolute  difference  in  average  sales  prices,  expressed  in 
NOK/kg, between superior and non-superior quality grades.  

(14)  The cost of production calculations submitted by the companies in their questionnaire 
replies could not be accepted since, as mentioned in recital 46 of the provisional Regulation, 
the  companies  could  not  substantiate  that  all  Japan  quality  trout  were  destined  for  the 
Japanese market, nor that the specific costs relating to such fish had not in fact been incurred 
by  all  fish  during  the  production  cycle.  In  addition,  the  methodology  proposed  by  the 
companies  had  the  effect  of  eliminating  certain  costs  rather  than  reallocating  them  over  all 
units of production and the sampled producers did not have an established system to identify 
costs on the basis of differences between the various quality grades of the product concerned 
and  had  never  previously  used  the  methodology  proposed.  Moreover,  although  it  is 
acknowledged that the major part of both Norwegian and Faroese trout exports is destined for 
the  Japanese  market,  it  cannot  be  excluded  that  so-called  Japan  quality  trout  is  sometimes 
exported to other markets. If one accepts the argument made by the parties that the primary 
production  objective  is  to  supply  trout  meeting  Japanese  standards,  it  is  only  correct  to 
apportion  costs,  such  as  extra  pigmentation  in  the  feed,  across  all  fish  produced.  The 
allocation of production costs on the basis of turnover, also foreseen in the absence of a more 
appropriate  method  by  Article  2(5)  of  the  basic  Regulation,  is  indeed  the  best  method  to 
reflect  differences  in  those  cases  where  the  same  costs  are  incurred  for  all  products  but  the 
quality finally obtained is different.  

(15) 
In addition, the sampled producers in the Faeroe Islands argued that they considered 
the methodology they proposed of adjusting costs by the differences in resale values between 
the different categories of trout was in line with generally accepted accounting principles. As 
already referred to in recital 56  of the provisional  Regulation, the  methodology used by the 
sampled producers does not allocate costs to the products on the basis of how these costs are 
actually  incurred,  nor  does  it  distribute  production  costs  to  the  products  in  a  manner  that 
properly  reflects  their  relative  sales  values.  On  the  contrary,  it  has  the  effect  of  failing  to 
recognise  all  production  costs  since  it  is  based  on  simply  reducing  costs  for  lower  quality 
products by an amount equal to the difference between their sales prices and those of higher 

6 

 
 
  
 
quality product. Therefore, this methodology cannot be considered to be in line with generally 
accepted accounting principles.  

(16) 
In  conclusion,  the  use  of  turnover  as  the  basis  of  production  cost  allocation,  in 
accordance  with  Article  2(5)  of  the  basic  Regulation,  means  that  any  alleged  physical 
differences  in  the  quality  types  of  the  product  concerned  are  appropriately  reflected  in  the 
calculations  since  this  method,  by  its  nature,  allocates  more  production  cost  to  those  fish 
having the greater sales value, such as superior quality trout. The arguments in recitals 11 and 
12  above  are  therefore  rejected  and  the  approach  set  out  in  recital  46  of  the  provisional 
Regulation is hereby confirmed. 

(17)  A  number  of  Norwegian  parties  argued  that  the  cost  of  acquisition  calculations  in 
respect  of  each  producer,  which  were  based  on  sales  destined  for  consumption  on  the 
domestic  market  (recital  30  of  the  provisional  Regulation),  only  represented  a  small  part  of 
the total domestic sales and would therefore not be representative. In considering this claim, 
the methodology used to determine the cost of acquisition, as set out in recitals 29 to 32 of the 
provisional  Regulation  was  also  re-examined.  It  was  concluded  that  the  exclusion  of  sales 
which were not made in the ordinary course of trade and the construction of the costs in the 
cases were sales by product types were not profitable could lead to the inclusion in the cost of 
acquisition of elements not only relating to costs, but also involving a notion of profit. It was 
therefore established that the carrying out of an ordinary course of trade exercise at the level 
of the producers would not be fully appropriate. Accordingly, it was decided to base the ‘cost 
of  acquisition’  exclusively  on  the  costs  incurred  by  the  sampled  producers,  these  costs  still 
being allocated to the products in the way described in the last sentence of recital 46 of the 
provisional  Regulation.  Moreover,  in  order  to  ensure  a  maximum  of  representativity,  it  was 
decided  that  the  costs  of  acquisition  so  calculated  for  each  sampled  producer  should  be 
weighted by the quantities of all sales made domestically by those producers to independent 
domestic  customers  to  give  an  overall  cost  of  acquisition  for  each  product  type  sold  by  the 
sampled producers.  

(18) 
It  was  also  submitted  that  the  representativity  of  domestic  sales  by  Norwegian 
exporters should have been assessed on the basis of the combined domestic sales of the three 
exporters  for  each  product  type  rather  than  for  each  exporter  separately  (recital  34  of  the 
provisional  Regulation).  However,  the  approach  adopted  of  assessing  the  representativity  of 
domestic  sales  for  each  exporter  separately,  is  consistent  with  the  established  practice  of 
considering the circumstances and determining the results of each exporter forming part of a 
sample separately before determining the overall result for the sample. This representativity 
test is in no way linked to the question of whether individual duties or a single country wide 
duty, as in this case, is being applied. Accordingly, the argument is rejected and the approach 
set out in recitals 26 to 28 of the provisional Regulation is confirmed. 

(19)  A number of  Norwegian parties also  argued,  at a late stage of the investigation, that 
the calculation of the cost of acquisition for trout fillets is inaccurate as it is based on the cost 
of  acquisition  for  ‘superior’  quality  fish,  as  indicated  in  recital  (33)  of  the  provisional 
Regulation,  and  as  the  codes  used  for  fillets  include  a  range  of  different  qualities.  They 
maintained that ‘superior’ quality fish is not used for fillets, which are generally made from 
‘other’ quality fish, or sometimes ‘ordinary’ quality fish, qualities as defined in recital 28 of 
the provisional Regulation. Nevertheless, they considered that even basing the calculation on 
‘other’  quality  fish  would  not  be  accurate  since  this  category  itself  covered  a  range  of 
different  qualities.  Although  expressly  requested  during  the  verification  visits,  these  parties 
did  not  supply  information  that  would  permit  a  more  detailed  calculation,  nor  otherwise 
substantiate the above claim. The approach adopted is considered the most reasonable since, 

7 

 
 
  
 
by  taking  the  cost  of  acquisition  for  fresh  gutted  head-on  superior  quality  fish  (the  most 
commonly  sold  type)  and  adjusting  this  by  the  percentage  difference  between  the  selling 
prices for that product and for the fillets, quality differences involved are actually reflected in 
the  calculation.  It  should  be  noted  that  companies  were  requested  in  the  questionnaire  to 
immediately  contact  the  officials  in  charge,  should  they  have  any  queries  or  request  any 
clarification on the main aspects of the questionnaire itself, as for example the part concerning 
the  product  description,  which  they  never  did.  At  this  stage  of  the  investigation,  the  above-
mentioned  remarks  concerning  the  range  of  qualities  within  the  product  codes  used  can  no 
longer be taken into consideration. The methodology set out in recital 33 of the provisional 
Regulation is therefore confirmed.  

(20)  A Norwegian party maintained that the profit margins used in constructing the costs of 
acquisition and normal values were unrealistically high (recitals 31 and 38 of the provisional 
Regulation). In this context, it is to be noted that in view of the revision of the methodology 
used to establish the cost of acquisition, no profit margin has now been used at the level of the 
sampled  producers.  The  profit  margins  used  at  the  level  of  the  sampled  exporters,  in  the 
limited number of cases where values were constructed, were in the range 12% – 21% with 
the  average  being  close  to  15%.  These  figures  came  from  the  sampled  companies’  own 
verified  data  relating  to  their  profitable  sales  and  therefore  cannot  be  considered  to  be 
excessive.  The  argument  is  therefore  rejected.  One  Norwegian  party  argued  that  only 
considering  profitable  sales  in  constructing  the  cost  of  acquisition  and  normal  value  in  the 
cases  indicated  in  recitals  31  and  36  of  the  provisional  Regulation  would  be  against  WTO 
rules. This argument cannot be accepted. Indeed, in view of the revision of the methodology 
used  to  establish  the  cost  of  acquisition,  the  question  no  longer  arises  for  the  cost  of 
acquisition. The approach followed in testing the profitability of domestic sales of exporters 
for the determination of normal value, is consistent with the provisions contained in Article 
2(4) of the basic Regulation, which are in conformity with WTO rules. The claim is therefore 
rejected.  

(21)  Parties  in  the  Faeroe  Islands  claimed  that,  in  the  absence  of  domestic  sales,  normal 
values  should  be  determined  on  the  basis  of  information  concerning  export  sales  to  third 
countries, which was requested as part of the questionnaire for the investigation (recitals 50 
and 51 of the provisional Regulation). In this respect it should be noted that the request for 
certain  information  in  an  investigation  does  not  prejudge  in  any  way  the  further  analysis  or 
restrict  the  choice  of  methodologies  to  those  making  use  of  that  information  only.  The 
construction of normal values on the basis of the cost of production in the country of origin is 
the first alternative listed at Article 2(3) of the basic Regulation for cases where there are no 
domestic  sales.  The  use  of  constructed  normal  value,  instead  of  exported  prices  to  third 
countries, as the basis for the determination of normal value is also the consistent practice of 
the Community in the absence of representative domestic sales. No arguments were presented 
nor any reasons found as to why the use of export prices to third countries would have been 
more  appropriate  in  this  case  than  a  constructed  normal  value.  The  argument  is  therefore 
rejected  and  the  approach  set  out  in  recitals  50  and  51  of  the  provisional  Regulation  is 
confirmed. 

(22) 
 A number of Norwegian parties identified certain sales to wholesalers and distributors 
as having being incorrectly excluded from the domestic sales. The calculations were amended 
in order to take account of these sales. 

(23)  Four Norwegian companies argued that the codes used in the investigation to identify 
the different types of the product concerned were not sufficiently detailed for the purpose. It 
should  be  noted  that  the  product  coding  system  is  based  on  the  widely  accepted  system  of 

8 

 
 
  
 
classification used in the industry, the purpose of which is to distinguish between the various 
qualities  of  product.  It  is  therefore  considered  an  appropriate  basis  to  ensure  a  proper 
comparison between the normal value and export price for the same quality and presentation 
of the product concerned. The argument is therefore rejected for the same reasons mentioned 
in recital (17) above. 

(24)  One Norwegian exporter claimed an adjustment in respect of certain domestic sales to 
retailers  on  the  basis  that  they  were  at  a  different  level  of  trade  than  its  sales  to  the 
Community.  This  argument  was  accepted  and  the  normal  value  calculations  were  amended 
accordingly. 

(25)  A  number  of  parties  submitted  comments  regarding  the  inclusion  of  certain  items  in 
the cost of production data and the correct identification of domestic sales transactions where 
those to traders were being excluded. For those claims which were found to be justified the 
dumping  calculations  were  amended  accordingly.  A  clerical  error  found  in  the  cost  of 
acquisition  calculation  for  one  Norwegian  producer,  which  had  led  to  an  understatement  of 
the cost of acquisition, was also corrected.  

2. Post IP events in the Faeroe Islands 

(26)  Some  parties  in  the  Faeroe  Islands  argued  that  the  level  of  production  and  exports 
from the Faeroe Islands had significantly decreased since the IP and that, as a consequence, 
Faroese exports to the EC will be de-minimis in the future. On this basis, it was claimed that 
the proceeding should be terminated in respect of the Faeroe Islands. In this respect, it should 
be  noted  that,  according  to  Article  6(1)  of  the  basic  Regulation,  information  relating  to  a 
period  subsequent  to  the  IP  shall,  normally,  not  be  taken  into  account.  Findings  should 
therefore be limited to the IP except in cases where the effects of new circumstances can be 
proved  to  be  manifest,  undisputed,  lasting,  not  open  to  manipulation  and  do  not  stem  from 
deliberate action by interested parties. It was verified that the claimed reduction in production 
and  exports  had  indeed  taken  place.  However,  even  if  the  claimed  decreases  would  bring 
Faroese exports to the EC below the de-minimis level in the near future, there are insufficient 
elements  to  conclude  that  such  a  decrease  would  be  lasting.  Moreover,  even  if  a  lasting 
decrease  in  production  and  exports  in  general  would  actually  take  place,  it  would  not  be 
possible to conclude from this fact that exports to the EC would also decrease in a lasting way 
given  that  EC  exports  only  amount  to  around  11%  of  the  production  and  that  therefore  any 
slight  change  in  the  supply  of,  for  example,  the  Japanese  market  may  result  in  significant 
increases of  the exports to the  Community. This type of situations would only be  verifiable 
over a more extended period of time. The claim is therefore rejected. 

3. Dumping Calculations 

(27)  Some  claims  having  been  accepted,  and  the  calculations  refined,  the  amount  of 
dumping finally determined, expressed as a percentage of the CIF net at Community frontier 
price, is as follows:  

Norway, country wide margin 

24,8% 

Faeroe Islands: 

P/F PRG Export (for goods produced by P/F Luna)   

54,5% 

P/F Vestsalmon (for goods produced by P/F Vestlax)  

30,0% 

9 

 
 
  
 
 
 
 
 
 
  
 
  
 
Co-operating but non-sampled companies 

All other companies 

42,6% 

54,5% 

E. Community industry  

(28)  The  Norwegian  Ministry  of  Fisheries  argued  that  the  percentage  of  the  Community 
industry’s  production  in  relation  to  the  total  Community  production  is  below  25%,  and 
therefore  the  proceeding  should  be  terminated  due  to  the  lack  of  support  for  the  case.  This 
submission was based firstly, on the argument that the production of the Community industry 
which should not include the production of large rainbow trout used for captive transfers as 
further explained in recital (41) below, and secondly the argument that the total Community 
production  figures  for  2001  and  2002  reported  by  the  Federation  of  European  Aquaculture 
Producers (FEAP) are not reliable as there is no common method for collecting the data on 
production from the members of FEAP.  

(29) 
In respect of the first aspect, it should be noted that, irrespective of the question how 
the  presence  of  a  captive  market  can  be  most  appropriately  taken  into  consideration  in  the 
injury  determination,  the  investigation  has  in  any  event  to  cover  the  entire  market  for  the 
reasons further explained in recitals (41), (42) and (43) below, and thus both the production 
used for sales on the free market and that used for captive transfers. Standing should therefore 
equally  be  determined  for  the  entire  market,  and  the  argument  made  in  this  respect  was 
therefore rejected.   

(30) 
In respect of the second argument made, it is correct that at the provisional stage, the 
statistical information made available by FEAP contained a number of unconfirmed figures, 
but  these  figures  were  not  replied  upon  exclusively.  FEAP  aggregates  the  production  data 
which  is  provided  by  its  members,  the  national  associations,  and/or  national  research 
institutions. These data are reviewed and reported to FEAP in the framework of its meetings 
twice  per  year.  The  production  figures  concerning  the  previous  year  are  reviewed  and 
approved.  Following  the  General  Assembly  meeting  of  FEAP  on  October  2003,  and  the 
subsequent  on-spot  verification  visit  at  the  premises  of  FEAP,  the  production  figures  were 
accordingly reviewed., FEAP remains the sole source of information at Community level for 
total  Community  production.  As  for  the  reliability  of  these  figures  it  should  be  noted  that 
FEAP adjusts the production figures when appropriate in order to reduce any discrepancies in 
the methods used by its members or/and national research institutions in order to publish an 
aggregate  data.  On  this  basis,  and  in  view  of  the  figures  of  the  Community  industry 
production which were revised as  explained in recital (44) below, it was confirmed that the 
Community  industry  does  account  for  more  than  25%  of  Community  production  of  the 
product  concerned,  and  therefore  the  argument  of  the  Norwegian  Ministry  of  Fisheries  was 
rejected.  

(31)  The  Faeroes’  exporting  producers  and  the  Faeroe  Fish  Farming  Association  argued 
that  the  complainant  must  be  regarded  as  a  regional  industry  because,  almost  all  of  its 
production  is  sold  on  the  Finnish  market,  and  the  intra-Community  trade  with  Finland  is 
negligible,  thus  meeting  the  criteria  set  out  in  Article  4(1)(b)  of  the  basic  Regulation  for 
establishing  an  isolated  market.  Whereas  the  Finnish  producers  have  indeed  sold  a  major 
proportion  of  their  production  of  large  rainbow  trout  on  the  Finnish  market  during  the 
investigation  period,  the  market  share  of  other  Community  producers  in  that  market 
represented more than 12%. This percentage is considered substantial, in particular in view of 
the fact that the market for the product concerned is competitive, transparent and sensitive to 
price variations. The Finnish market cannot therefore be considered as an isolated market. In 

10 

 
 
  
 
  
 
 
 
  
 
 
 
 
 
 
addition, the dumped imports from Norway and the Faeroe Islands are not concentrated in the 
Finnish market and do not cause injury solely to the producers of that country. The criteria set 
out in Art 4(1)(b)(i) of the basic Regulation for a regional case are therefore not met, and the 
argument was rejected. 

F. Injury 

1. Apparent Community consumption  

(32)  Due  to  the  revised  figures  of  Community  production  as  described  in  recital  (44) 
below,  the  figures  in  recitals  67,  74  and  84  of  the  provisional  Regulation  regarding  the 
Community consumption and subsequently the market shares of Community industry and of 
imports from Norway and the Faeroe Islands have been accordingly reviewed for the purpose 
of the definitive determination and presented below. 

Apparent  consumption in the Community  

1999 

2000 

2001 

IP 

Tonnes  

     43,831 

     49,970 

     54,250 

      55,565 

Index 1999 = 100 

         100 

         114 

         124 

          127 

(33)  On  the  above  basis,  the  apparent  consumption  of  large  rainbow  trout  on  the 
Community  market  shows  a  slight  increase  in  relation  to  the  figures  indicated  in  the 
provisional Regulation. 

(34) 
   One party argued that CN codes used by Eurostat during the IP covered also portion-
sized trout not included in the product scope of this proceeding and therefore the export and 
import  figures  used  in  calculating  the  apparent  Community  consumption  of  large  rainbow 
trout would be inaccurate.  

(35)  The  methodology  used  to  calculate  the  consumption  takes  indeed  account  of  this 
element and makes the necessary appropriate adjustments as described in detail in recital 65 
of the provisional Regulation.  

(36) 
In  the  absence  of  any  other  information  submitted,  and  account  being  taken  of  the 
revised  figures  of  the  Community  consumption,  the  methodology  explained  in  recital  65  of 
the provisional Regulation is hereby confirmed. 

2. Market share of the imports concerned  

(37)  Due to the revised figures of Community consumption as described above, the figures 
regarding  market  share  of  the  imports  from  Norway  and  the  Faeroe  Islands  have  been 
reviewed for the purpose of the definitive determination and are presented below:  

Market share  

1999 

3,8%

2000 

3,5%

2001 

IP 

11,0% 

16,7%

(38)  The  above  shows  the  same  sharp  increase  of  the  dumped  imports  from  Norway  and 
the  Faeroe  Islands  as  concluded  in  recital  74  of  the  provisional  Regulation.  Indeed,  their 

11 

 
 
  
 
 
 
 
market share moved up by approximately 13% percentage points over the analysis period and 
absorbed  the  major  part  of  the  increase  in  consumption  that  occurred  in  the  Community 
market over the same period.       

3. Effect of the dumped imports on prices in the Community market 

(39)  Subsequent to the provisional measures, new calculations of the undercutting margins, 
due to some transactions  found  to  have been wrongly  recorded  and  the  corrections  made  to 
take  account  of  the  free  customs  duty  quota  granted  to  the  Faeroe  Islands  (ref.  recitals  (92) 
and (93) below), showed that the products concerned originating  in Norway and the  Faeroe 
Islands  were  sold  in  the  Community  at  prices  which  undercut  the  Community  industry’s 
prices,  when  expressed  as  percentage  of  the  latter,  as  follows:  Norway  on  average  by  7,3% 
and the Faeroe Islands in the range between 21,8% and 28,4%. 

(40)  The  analysis  of  all  the  revised  figures  did  not  alter  the  methodology  explained  in 
recitals 76 and 77 of the provisional Regulation which is hereby confirmed. 

4. Economic situation of the Community industry  

i. Preliminary remarks 

(41) 
It  was  found  in  the  investigation  that  two  of  the  sampled  co-operating  Community 
industry  producers  used  the  like  product  for  further  processing  to  other  products,  mainly 
smoked  and  ground  trout.  Such  internal  captive  transfers,  i.e.  those  used  by  an  integrated 
producer  for  further  processing,  transformation  or  assembly  within  an  integrated  process  do 
not enter the open market and are thus not in direct competition with imports of the product 
concerned. In order to take this situation into account and to provide as complete a picture as 
possible of the situation of the Community industry, data have been obtained and analysed for 
the entire activity, and it was subsequently determined whether the production was destined 
for captive use or for the free market.  

(42)  For the following economic indicators the analysis focused on the situation prevailing 
on  the  free  market:  sales  volume,  sales  prices,  profitability,  return  on  investments  and  cash 
flow. Where possible and justified, these findings were subsequently compared with the data 
for  the  captive  market.  Due  to  the  use  of  sampling,  these  indicators  were  examined  on  the 
basis of the data obtained for the sampled companies. It should be noted that there were no 
indications  of  further  processing  by  other  companies  belonging  to  the  Community  industry 
but outside the sample.  

(43)  As regards other economic indicators, it was found on the basis of the investigation, 
that  they  could  reasonably  be  examined  only  by  referring  to  the  whole  activity.  Indeed, 
production  (for  both  the  captive  and  the  free  market),  capacity,  capacity  utilisation,  market 
share, investments, employment, productivity, wages, ability to raise capital depend upon the 
whole activity, whether the production is captive or sold on the free market. 

ii. Production capacity, production, capacity utilisation 

(44)  Following  provisional  measures,  the  factors  listed  in  the  table  below  have  been 
reexamined.  Certain  information  regarding  three  co-operating  Community  producers  could 
now  be  taken  into  account  with  the  consequence  that,  the  figures  in  recital  81  of  the 

12 

 
 
  
 
 
     
provisional Regulation were slightly understated. These have been therefore adjusted for the 
purpose of the definitive determination and are presented below.  

Production capacity, production, capacity utilisation 

1999 

2000 

2001 

IP 

Production  capacity  in  tonnes  of  Whole  Fish 
Equivalent 

     15 645       15 630        15 665        15 684 

Index 1999=100 

100

100 

100 

100

Production in tonnes of Whole Fish Equivalent 

     11 348       12 739        11 605        12 080 

Index 1999=100 

Production/Capacity utilisation rates 

100

73%

112 

102 

106

82% 

74% 

77%

(45)  The analysis of all the revised figures did not alter the conclusions drawn in recitals 81 
of the provisional Regulation which are hereby confirmed. 

iii. Stocks 

(46) 
It was found in the investigation that one of the non-sampled co-operating Community 
producers had frozen a large part of its production in 2000 and 2001, which was subsequently 
sold  in  2001  and  during  the  IP.  However,  no  other  producers  were  found  to  freeze  their 
production and therefore, the conclusions drawn in recital 82 of the provisional Regulation are 
hereby confirmed. 

iv. Market share of Community industry 

(47)  Furthermore, due to the revised figures for Community consumption and Community 
industry  production  as  explained  in  recitals  (32)  above,  the  market  share  held  by  the 
Community industry during the analysis period is presented below: 

Market share of Community industry 

Market share  

1999 

25,9%

2000 

25,5%

2001 

IP 

21,4% 

21,7%

(48)  The above shows that the market share held by the Community industry decreased by 
four  percentage  points  over  the  analysis  period. Whilst the high increase of the Community 
consumption,  i.e.  27%  over  the  analysis  period,  does  not  change  the  trend  of  the  imports 
concerned  showing  a  sharp  increase,  it  results  in  a  much  lower  market  share  held  by  the 
Community industry, which lost more than four percentage points over the same period. The 
conclusions drawn in recital 84 of the provisional Regulation are therefore hereby confirmed. 
It should be however noted that the Community industry’s market share declined only in 2001 
when the imports concerned increased sharply.    

v. Employment, productivity, wages and ability to raise capital 

(49)  For  the  same  reasons  as  described  in  recital  (44)  above,  the  employment  and 
productivity figures were accordingly revised, as follows:  

13 

 
 
  
 
 
 
 
Employment, productivity 

1999 

2000 

2001 

IP 

Number of employees 

         194 

         179 

          182 

          173 

Index 1999 = 100 

         100 

           92 

            94 

            89 

Productivity: production/employee 

         100 

         122 

          109 

          119 

Source: Questionnaire replies of the Community industry. 

(50)  The analysis of all the revised figures did not alter the conclusions drawn in recital 86 
of the provisional Regulation which are hereby confirmed. 

(51)  With regard to the ability to raise capital, it is confirmed that the Community industry 
did  not  encounter  particular  difficulties  given  its  possibility  to  invest  in  new  equipment,  as 
explained in recital 91 of the provisional Regulation. However, this ability should be seen in 
the light of the Community industry’s efforts to increase its productivity in order to cope with 
the increased competition due to low market prices. 

In  the  absence  of  any  other  information  regarding  wages,  the  conclusions  drawn  in 

(52) 
recital 87 of the provisional Regulation are hereby confirmed.  

vi. Sales 

(53)  With regard to sales volumes, it should be firstly recalled that, as explained in recitals 
65, 66 and 82 of the provisional Regulation, the production figures were considered equal to 
the sales of the product concerned on both the captive and the free market with the exception 
of one company’s sales as explained in recital (46) above.  The sales of the like product on the 
free  market  made  by  the  Community  industry  and  the  production  volumes  used  by  two 
sampled companies for further processing the like product (captive use), are presented below: 

1999 

2000 

2001 

IP 

Free  market  sales  in  tonnes 
WFE  

      10 274 

   8 114 

 10 727 

  11 326 

Index 1999 = 100 

                100 

              79 

            104 

             110 

Captive use  in tonnes WFE 

              872 

       2 053 

       1 559 

              2 795 

Index 1999 = 100 

100

               235 

               179 

320 

Source: Questionnaire replies of the sampled Community industry producers. 

(54)  The above shows that whilst the sales on the free market increased by ten percentage 
points during the analysis period, the captive use increased three fold. It should however, be 
noted  that  the  high  increase  in  captive  use  is  mainly  due  to  the  fact  that  one  of  the  two  
integrated  producers  practically  started  its  operations  of  further  processing  only  in  2000.  In 
any case, this evolution indicates that the Community industry was not able to benefit from 
the  increase  in  consumption  (+27%  over  the  analysis  period),  but  instead  was  forced  to 
increase its use of the like product.  

14 

 
 
  
 
 
 
vii. Profitability 

(55) 
In  a  review  of  the  information  submitted  by  the  sampled  co-operating  Community 
producers, the profitability of these companies for their net sales on the free market has been 
revised for the purpose of the definitive determination and is presented below:  

Profitability  of  the  sales  on 
the free market   

1999 

2000 

2001 

IP 

8,6%

100

13,3%

10,4% 

155

122 

0,5%

5

Source: Questionnaire replies of the sampled Community industry producers. 

(56)  The  above  shows  that  while  the  profitability  of  the  free  market  sales  was  relatively 
high  in  the  period  1999  to  2001,  during  the  IP,  it  marked  a  significant  deterioration  to 
practically  break  even  point  due  the  low  prices  prevailing  on  the  market.  As  for  the 
profitability including captive use, this could not be determined since the captive transfers of 
the  like  product  were  internal  transfers  of  the  integrated  producers,  for  which  no  invoices 
were  issued.  However,  there  is  no  reason  to  believe  that  the  profitability  of  these  captive 
transfers  within  the  two  companies  concerned  did  not  follow  the  same  trend  as  that  of  the 
sales on the free market.    

viii. Return on investment, cash flow 

(57)  The reviewed sampled Community industry’s return on investment during the analysis 

period is presented below:   

Return on investments  

1999 

43,7%

2000 

57,2%

2001 

58,3% 

IP 

2,3%

Source: Questionnaire replies of the sampled Community industry producers. 

(58)  The  above  shows  the  same  trend  as  provisionally  established  and  therefore  the 
conclusions drawn in recital 92 of the provisional Regulation are hereby confirmed. As for the 
return on investment concerning the captive transfers, for the same reasons as explained for 
the  profitability,  it  could  not  be  assessed.  Nevertheless,  given  that  the  captive  transfers  are 
made  by  the  integrated  producers  using  the  same  production  facilities  and  the  same 
investments, it was considered that they follow the same trend as the sales on the free market.     

(59)  The  sampled  Community  industry  producers,  recorded  a  net  cash  inflow  from 
operating activities during the analysis period. However, this declined dramatically during the 
IP as shown below:  

15 

 
 
  
 
 
 
 
1999 

2000 

2001 

IP 

Cash  flow  in  EUR  ‘000 
without captive use  

      1 522 

     1 757 

     1 713 

     398 

Index 1999 = 100 

                100 

              115 

              113 

               26 

Cash  flow  expressed  as 
percentage of turnover 

12%

18%

13% 

4%

Source: Questionnaire replies of the sampled Community industry producers. 

ix. Comments received from interested parties 

(60)  One  party  argued  that  the  Community  industry  did  not  suffer  material  injury  during 
the IP since performance indicators such as production, production capacity, productivity and 
the average wage per employee increased over the same period. Moreover, the industry was 
profitable,  made  a  return  on  investment  and  had  a  positive  cash  flow.  Regarding  the 
production  increase,  it  should  be  noted  that  the  production  of  large  rainbow  trout  follows  a 
biological  cycle  of  2,5-3  years  before  it  is  harvested  and  sold  on  the  market.  A  production 
increase during the IP is therefore due to a decision of farmers on the quantity of small fish 
put in the water in 1999 and 2000 reflecting the market conditions of these years which were 
not influenced by the dumped imports. With regard to the productivity increase, this is mainly 
attributable  to  the  investment  in  new  equipment  reflecting  the  efforts  of  the  Community 
industry  to  cope  with  low  market  prices  and  secondly  to  the  decrease  of  employment,  this 
indeed  reflecting  the  severe  situation  facing  the  industry.  As  for  the  profitability  and  cash 
flow,  both  marked  a  sharp  decline  during  the  IP  reflecting  the  low  prices  obtained  on  the 
market and the difficult financial situation of the Community industry. 

(61) 
It  was  further  argued  that  the  Community  industry’s  production  did  not  manage  to 
increase  in  order  to  meet  the  increase  in  demand  because  of  the  licensing  policies  pursued 
within  the  Community.  It  should  be  noted  that  the  environmental  licences  affect  the 
production capacity, which as described in recital 81 of the provisional Regulation remained 
stable  during  the  analysis  period.  However,  as  the  production  capacity  was  not  fully  used, 
there  was  a  free  capacity  which  could  have  been  used  for  meeting  the  increase  in  demand. 
This argument was therefore rejected. 

it  should  be  noted 

(62) 
It was further argued that several Norwegian exporters also sell trout smaller than 1,2 
kg,  which  might  obtain  lower  prices  affecting  thus  the  injury  assessment  analysis.  In  this 
respect, 
investigated  sampled  companies  representing 
approximately 40% of total Norwegian exports during the IP were not found to have had any 
sales of that kind of trout. Therefore, it can be assumed that the quantities concerned were, if 
any,  negligible,  and  thus  their  impact  on  the  analysis  equally  negligible.  The  argument  was 
therefore rejected. 

that 

the 

(63) 
In  the  absence  of  any  other  information  submitted,  and  account  being  taken  of  all 
revised figures regarding the economic indicators, the conclusions drawn in recitals 80 to 98 
of the provisional Regulation are hereby confirmed.  

16 

 
 
  
 
 
 
 5. Conclusion on injury  

(64)  Captive  use  was  limited  to  two  sampled  Community  producers  and  there  were  no 
indications  of  further  processing  of  the  like  product  by  other  producers  belonging  to  the 
Community  industry.  Furthermore,  given  the  profits  attained  by  the  Community  industry 
between 1999 and 2001, it is unlikely that the captive use could have a significant impact on 
the economic situation of the Community industry. Therefore, the conclusions drawn by the 
above analysis on the situation of the Community industry are not considered to change due to 
the captive use.   

(65)  During  the  analysis  period  the  volume  of  low-prices  imports  from  Norway  and  the 
Faeroe Islands increased significantly. Their market share increased from 3,8% to 16,7%. It is 
noteworthy  that  the  increase  of  the  imports  from  Norway  and  the  Faeroe  Islands  and  the 
decline  of  the  sales  price  were  particularly  pronounced  between  2001  and  the  IP.  Import 
volumes  during  that  period  were  multiplied  by  4  to  6  and  import  prices  decreased  by  34%, 
undercutting the Community industry’s sales prices (which were close to break-even point) in 
the range between 7,3% and 28,4% during the IP. This should be further seen in conjunction 
with  the  evolution  of  profitability  of  the  Community  industry  which  after  a  first  decline  in 
2001 decreased sharply to a nil level during the IP.   

(66)  Regarding  the  argument  that  some  of  the  detailed  injury  indicators  developed 
positively during the analysis period and accordingly did not point towards injury, it should 
firstly be noted that, as per Article 3(5) of the basic Regulation, none of the economic factors 
or  indices  listed  in  this  article  shall  necessarily  be  decisive  in  the  determination  of  material 
injury  suffered  by  the  Community  industry.  More  importantly,  while  some  economic 
indicators  pertaining  to  the  situation  of  the  Community  industry,  such  as  production, 
production  capacity  installed  and  capacity  utilisation,  productivity,  and  investments  showed 
positive  developments  over  the  analysis  period,  these  had  not  the  desired  positive  effect. 
Indeed,  the  Community  industry  suffered  from  eroding  market  shares  in  a  growing  market 
though  demand  and  reduced  prices  resulting  in  a  quasi  loss-making  situation  during  the  IP 
which in fact more than offset the aforementioned positive developments. 

(67)  Taking into account all factors mentioned above, it is considered that the Community 
industry has suffered material injury.  

G. Causation 

(68) 
It was argued that the price undercutting by Norwegian exports of large rainbow trout 
should not be considered significant and injurious to the Community industry. In this respect, 
it  should  be  firstly  noted  that  the  undercutting  found  is  significant  taking  into  account  the 
specific features of the product concerned: large rainbow trout is a commodity and sensitive 
to  price  fluctuations.  In  addition,  the  Community  industry  is  very  fragmented,  and  thus  can 
not impose its prices on the market. These factors together explain the injurious impact that 
the level of price undercutting found had on the Community industry.  

(69) 
It was further argued that the IP coincided with a temporary and cyclical mismatch of 
offer  and  demand  in  the  world  market  for  trout.  As  investments  decisions  are  made  two  to 
three years before the product is brought to the market, the stability of prices will from time to 
time be disrupted. Temporary shortages in the market will lead to increased prices, while the 
effect is the opposite if demand does not keep pace with production.  

17 

 
 
  
 
(70) 
In this regard, it should indeed be noted that if the Community market had during the 
analysis period an excess demand resulting in a shortage, this would normally push the prices 
to a higher level, as consumers would bid up the price through that excess. However, instead a 
steep drop in prices occurred in 2001 and during the IP, which in the absence of other likely 
explanations must be attributed to the dumped imports from Norway and the Faeroe Islands. 

(71) 
It was further argued that large rainbow trout is a commodity where the world prices 
are set in the dominant market of Japan, and that the Community prices followed these prices 
which dropped significantly during the same period. In this respect, it should be noted that on 
the basis of the information submitted by the Norwegian Seafood Federation on the Japanese 
wholesale  price  quotations  for  frozen  Norwegian  trout  for  the  period  1997  up  to  2003,  the 
prices on the Japanese market dropped continuously throughout the analysis period, account 
being taken of the fluctuations in currency exchange rates. However, the argument that prices 
of large rainbow trout are set worldwide by the Japanese  market, was not  confirmed by the 
findings of the investigation. Whereas it is true that the prices in the Community also dropped 
sharply  during  the  IP,  as  did  prices  on  the  Japanese  market,  they  were  maintained  at  a 
reasonable level in 1999 and even increased in 2000, contrary to those in Japan. During the 
same period, the imports from Norway and the Faeroe Islands followed the same trend as the 
Community prices, while in volume terms they were kept at a low level. It is only in 2001, 
when the prices in the Japanese market attained a very low level, that dumped imports into the 
Community  from  Norway  and  the  Faeroe  Islands  increased  dramatically,  namely  to  three 
times the volume of 2000. This increase is thus directly attributable to the selling off on the 
Community market of a part of the production in excess due to the reduction of their exports 
on the collapsed market in Japan. On the above basis, the argument was therefore rejected. 

(72) 
In the absence of any other new information submitted on the causation, the findings 
and the conclusion reached as set out in recitals 109 to 120 of the provisional Regulation are 
hereby confirmed.  

H. Community interest 

(73)  Subsequent  to  the  imposition  of  provisional  measures,  some  Associations  of  fish 
processing  industries  submitted  comments  opposing  to  the  measures.  A  questionnaire  was 
therefore addressed to them, and they were invited to submit their responses, on the basis of 
which an assessment of the alleged economic effects of the anti-dumping measures to these 
parties was made. One party replied and submitted information regarding seven of its member 
companies. On the basis of this information, which was consolidated for the seven companies, 
it  was  concluded  that  the  economical  impact  of  the  anti-dumping  measures  on  the  fish 
processing companies would be negligible. Their argument was therefore rejected.  

(74)  One party argued that the product concerned from Norway is of better quality and that 
the imposition of definitive measures would reduce supply of quality trout from Norway. This 
would be to the detriment of importers involved and also to consumers as prices will be likely 
increased  due  to  reduced  supply  from  Norway.  The  effect  of  lower  supply  from  Norway  is 
allegedly  likely  to  be  especially  strong  in  particular  during  summer  and  early  autumn  when 
the supply from the Finnish industry is low. Furthermore, it was argued that the imposition of 
anti-dumping  measures  would  result  in  a  lasting  re-direction  of  Norwegian  exporters’  sales 
activities from the Community to other markets, which in turn would be to the detriment of 
importers and consumers in the Community.  

(75)  Regarding the quality differences, it should be noted that they were considered in the 
different  types  of  the  product  concerned  and  as  such  were  examined  in  the  dumping 

18 

 
 
  
 
calculations and the injury assessment. As regards the increased prices in the Community due 
to the lower supply from Norway, it should be emphasised that the purpose of anti-dumping 
duties is to restore a ‘level playing field’, rather than to prevent access to Community markets. 
As  for  the  effect  of  the  measures  on  the  Finnish  market  due  to  lower  supply  in  particular 
during the summer,  it  should  be  noted that the Finnish market is not regarded as a separate 
market in accordance with Article 4(1)(b) of the basic Regulation. Therefore, the supply and 
demand conditions are determined at the level of the whole Community market in which the 
Norwegian  imports  compete  with  the  Community  producers.  Regarding  the  possibility  of 
Norwegian exporting producers to export during the summer when the supply in the Finnish 
market  is  low,  this  is  a  comparative  advantage.  Should  this  advantage  exist,  it  remains 
unaffected  by  the  imposition  of  anti-dumping  measures,  and  thus  Norwegian  exporting 
producers will continue to benefit from it.  

(76)  The same party argued that since the imposition of provisional measures, Norwegian 
exports  of  large  rainbow  trout  to  the  Community  have  decreased  by  over  60  per  cent 
compared with the same period in 2002. This decrease of supply appears set to increase in the 
future  given  the  declining  level  of  production  of  large  rainbow  trout  in  Norway,  and  to  be 
detrimental to importers, the processing industry and consumers in the Community.  

(77) 
In this respect, it should be firstly noted that anti-dumping measures aim at restoring a 
level playing field and not to prevent access into the Community market.  In this connection, 
it  is  noteworthy  that  the  imports  continued  at  a  level  comparable  to  that  of  1999  and  2000, 
before  the  steep  increase  in  dumped  imports  in  2001.  As  for  the  decreasing  level  of 
production  in  Norway,  no  substantiated  evidence  was  submitted  indicating  that  such  a 
situation would continue in a lasting manner. Additionally, any such decrease might, in any 
event, not actually affect the exports to the Community market if the supplying conditions in 
other export markets were even less favourable than those to the Community at the time of the 
exports. On this basis, the argument was rejected. 

(78)  Several associations of fish processing industries argued that not enough attention was 
paid  to  the  existence  of  different  market  segments  (whole,  fillet,  roe  and  smoked)  and 
different pricing on these segments. Moreover, it was argued that large rainbow trout farmed 
in  salty  waters  in  Norway  has  a  specific  positioning  on  the  market  and  that  restricting  the 
access  to  this  specific  origin  of  the  product  by  imposing  a  heavy  duty  did  not  favour  free 
competition.  

(79)  Firstly,  it  should  be  noted  that  smoked  trout  and  roe  are  not  subject  to  this 
investigation. Regarding the whole fish and fillets, they were considered as different types of 
the product concerned and as such were examined in the dumping calculations and the injury 
assessment.  Therefore,  the  different  pricing  of  different  market  segments  has  been  indeed 
taken into account. Regarding the specific origin of product, the investigation has established 
that  the  products  exported  from  Norway  and  the  Faeroe  Islands  and  the  products  sold  by 
Community producers have been alike in all their essential physical characteristics and uses.  

(80)  Furthermore,  it  was  argued  that  cheap  large  trout,  mostly  of  Finnish  production,  has 
been sold mainly for the consumer market as whole fish or fillets, while processors do not use 
much of it. This argument was not substantiated. In contrast, on the basis of the information 
provided by the Finnish co-operating companies, it was not only found that their production 
had  been  sold  also  to  processors,  but  a  number  of  them  further  processed  the  product 
concerned  themselves  before  they  sold  it  on  the  market.  Moreover,  the  significant 
undercutting established for imports from Norway and the Faeroe Islands rather indicates that 

19 

 
 
  
 
cheap imports from Norway and the Faeroe Islands have been attractive to processors due to 
their low price. The argument was therefore rejected.  

(81) 
It was further argued that the Community market registered higher prices after the IP 
ending  thus  a  low  price  period  for  trout,  and  that  it  is  highly  probable  that  the  prices  will 
remain  on  a  relatively  high  level  in  the  short/medium  term.  First  it  should  be  noted  that,  in 
line  with  a  consistent  Community  practice,  events  relating  to  a  period  subsequent  to  the 
investigation  period  can  only  be  taken  into  account  if  they  are  manifest,  undisputed  and 
lasting.  However,  this  price  evolution  was  not  substantiated  and  no  elements  demonstrating 
the likeliness of its lasting nature were provided. Although the prices after the IP were indeed 
found to have increased, this fact does not constitute evidence in itself for the future prices, 
which are determined on the basis of the balance between supply and demand. In this respect, 
it should be noted that, in contrast to a possible forecast of supply, the demand is very difficult 
to  anticipate  as  there  are  many  interacting  factors  in  the  market  which  may  cause  price 
fluctuations. In any case, no relevant information was provided to substantiate an estimate of 
these two factors. Therefore, the argument was rejected. 

(82) 
It  was  further  argued  that  the  duty  on  imports  will  cause  an  increase  of  prices,  the 
processors  will  turn  to  other  types  of  fish  such  as  salmon  and  the  Community  farmers  will 
face  difficulties  regarding  their  trout  sales.  Therefore,  it  was  claimed  that  the  anti-dumping 
measures would not be in the interest of the producers.  

(83)  Regarding the increase of prices, the anti-dumping measures indeed aim at increasing 
the dumped prices, removing thus the injurious impact suffered by the Community industry. It 
cannot  be  excluded  either  that  a  substitution  effect  takes  place,  account  being  taken  of  the 
substitutability of large rainbow trout with salmon and the price differential between them. In 
general,  whereas  a  price  increase  helps  the  Community  industry  recover  profitability,  other 
exporters not targeted by the measures as well as the Community industry via a higher use of 
production capacity might increase their supply, which in turn has to keep pace with demand 
and  find  a  new  balance  at  lower  level  of  prices.  In  this  respect,  it  should  be  noted  that  a 
substitution with salmon has the same effect on prices. In conclusion, whilst the anti-dumping 
duty  aims  at  restoring  a  “level  playing  field”,  the  prevailing  market  forces  determine  the 
prices.  

(84)  One party argued that the absence of a reaction from its side representing the interests 
of  consumer  associations  should  not  be  interpreted  as  a  lack  of  interest,  and  even  more  be 
used to conclude that the impact on consumers of any anti-dumping measures will be limited. 
It requested therefore that recital 117 of the provisional Regulation be accordingly amended. 
The Institutions have taken note of this claim. However, in the absence of any substantiated 
information,  this  claim  does  not  affect  the  conclusions  of  the  provisional  Regulation 
concerning the Community interest.  

(85)  The  Finnish  Food  and  Drink  Industries’  Federation  submitted  comments  which 
nevertheless could not be taken into account for the purpose of the definitive findings since it 
had failed to make itself known as an interested party either within the time limits set out in 
the  notice  initiating  this  proceeding,  or  within  the  time  limit  set  out  by  Article  2  of  the 
provisional Regulation. Furthermore, the allegations made by this federation were expressly 
rejected by its members having co-operated in the investigation. 

(86) 
In the absence of any other new information submitted on the Community interest, the 
findings  and  the  conclusion  reached  as  set  out  in  recitals  109  to  120  of  the  provisional 
Regulation are hereby confirmed.  

20 

 
 
  
 
I. Definitive anti-dumping measures 

(87) 
In  view  of  the  conclusions  reached  regarding  dumping,  injury,  causation  and 
Community interest, it is considered that definitive anti-dumping measures should be imposed 
in order to prevent further injury being caused to the Community industry by dumped imports 
from Norway and the Faeroe Islands. 

1. Injury elimination level 

(88)  Based  on  the  methodology  explained  in  recitals  121  to  125  of  the  provisional 
Regulation, an injury elimination level has been calculated for the purposes of establishing the 
level of measures to be definitively imposed. 

(89)  The  Norwegian  authorities  argued  that  a  normal  profit  margin  considered  of  12%  is 
too high. It was further submitted that the analysis period was not representative of a normal 
competitive situation, as prices and profit margins, according to the industry, were particularly 
high during these years compared with the average situation in the industry. 

(90)  Firstly,  it  should  be  noted  that  this  argument  was  not  substantiated.  Secondly,  the 
sharp  decline  of  Norwegian  trout  prices  in  the  Japanese  market  as  explained  in  recital  (71) 
above might have had a significant impact on the profits realised by the Norwegian industry 
during the analysis period. This price fall did not however occur on the Community market 
before  the  surge  of  dumped  imports,  when  a  normal  competitive  situation  prevailed. 
Therefore,  the  argument  that  the  analysis  period  was  not  representative  of  a  normal 
competitive situation was rejected.    

(91)  However,  on  the  basis  of  the  revised  figures  concerning  the  profitability  of  the 
Community industry as explained in recital (55) above, a profit level of 10% was considered 
as  an  appropriate  level  which  the  Community  industry  could  be  expected  to  obtain  in  the 
absence of injurious dumping.  

(92)  One  party  argued  that  different  quality  grades  of  the  like  product  in  the  Community 
had  not  been  appropriately  considered  resulting  in  a  certain  inconsistency  with  the  target 
prices.    

(93) 
It  was  indeed  found  that  some  transactions  have  been  wrongly  recorded  in  terms  of 
quality  due  to  the  misinterpretation  of  some  invoices.  All  the  relevant  transactions  were 
therefore  corrected  and  new  calculations  for  determining  undercutting  and  injury  margins 
were  made.  Furthermore,  corrections  were  made  to  take  account  of  the  free  customs  duty 
quota granted to the Faeroe Islands.   

(94)  On  the  basis  of  the  above,  the  new  injury  elimination  margins  found  are  presented 
below:  

21 

 
 
  
 
Norway 

Faeroe 

Injury elimination margins 

19,9% 

P/F  Vestsalmon  (for  goods  produced  by  P/F 
Vestlax) 

43,8% 

P/F PRG Export (for goods produced by P/F Luna) 

54,4% 

               Other co-operating 

49,3% 

(95) 
In the absence of any further comments made, the methodology used for establishing 
the injury elimination level as described in recitals 121 to 125 of the provisional Regulation is 
confirmed.   

2. Form and level of the duties 

(96) 
In  the  light  of  the  foregoing  and  in  accordance  with  Article  9(4)  of  the  basic 
Regulation,  definitive  anti-dumping  measures  should  be  imposed  in  respect  of  imports 
originating in Norway and the Faeroe Islands. The measures should be imposed at the level of 
the  injury  margins  or  the  dumping  margins  found,  whichever  are  the  lower.  There  are  no 
reasons why these measures should not, as with provisional measures, take the form of an ad 
valorem duty.  

(97)  Following  the  imposition  of  any  definitive  measures,  the  Commission  will  examine 
the  market  developments,  and  in  particular  the  effect  of  enlargement  of  the  Community 
market, and propose changes to the application of measures, if warranted. 

3. Collection of provisional duties 

(98) 
In view of the magnitude of the dumping margins found and in the light of the injury 
caused to the Community industry, it is considered necessary that the amounts secured by way 
of  the  provisional  anti-dumping  duty,  imposed  by  the  provisional  Regulation,  should  be 
definitively collected at the rate of the duty definitively imposed. Where the definitive duties 
are higher than the provisional duties, only the amounts secured at the level of the provisional 
duties should be definitively collected. 

(99)  Any claim requesting the application of these individual company anti-dumping duty 
rates (e.g. following a change in the name of the entity or the setting up of new production or 
sales entities) should be addressed to the Commission4 forthwith all relevant information, in 
particular  any  modification  in  the  company’s  activities  linked  to  production,  domestic  and 
export sales associated with, for example, that name change or that change in the production 
and  sales  entities.  The  Commission,  if  appropriate,  will,  after  consultation  of  the  Advisory 
Committee,  amend  the  Regulation  accordingly  by  updating  the  list  of  companies  benefiting 
from individual duty rates. 

4 

European  Commission  –  Directorate  General  for  Trade  –  Directorate  B  –  J-79  5/17  –  Rue  de  la 
Loi/Wetstraat 200 – B-1049 Brussels  

22 

 
 
  
 
 
 
                                                 
4. Undertakings 

(100)  The  Commission  by  Regulation  No  117/2004  amending  the  provisional  Regulation 
accepted  the  undertakings  offered  by  two  exporting  producers  in  the  Faeroe  Islands.  The 
reasons for accepting these undertaking are set out in this Regulation. The Council recognises 
that  the  undertakings  eliminate  the  injurious  effect  of  dumping.  In  addition,  the  companies 
will  also  provide  the  Commission  with  regular  and  detailed  information  concerning  their 
exports to the Community, meaning that the undertakings can be monitored effectively by the 
Commission. Under these circumstances, it is considered that the risk of circumvention of the 
agreed undertakings is limited. 

(101)  It  is  pointed  out  that,  in  the  event  of  suspected  breach,  breach  or  withdrawal  of  the 
undertaking an anti-dumping duty may be imposed, pursuant to Article 8(9) and (10) of the 
basic Regulation. 

HAS ADOPTED THIS REGULATION: 

Article 1 

1.  A  definitive  anti-dumping  duty  is  hereby  imposed  on  imports  of  large  rainbow  trout 
(Oncorhynchus  mykiss)  whether  fresh,  chilled  or  frozen,  whether  in  the  form  of  whole  fish 
(with heads and gills on, gutted, weighing more than 1,2 kg each or with heads off, gilled and 
gutted, weighing more than 1 kg each) or in the form of fillets (weighing over 0,4 kg each), 
currently classifiable within CN codes 0302 11 20, 0303 21 20, 0304 10 15 and 0304 20 15, 
originating in Norway and the Faeroe Islands. 

2.  The  rate  of  the  definitive  antidumping  duty  applicable,  before  duty,  to  the  net  free-at-
Community-frontier price for products described in paragraph 1 produced by all companies in 
Norway shall be 19,9%. The rate of the definitive anti-dumping duty applicable, before duty, 
to the net free-at-Community-frontier price for products described in paragraph 1 produced by 
the companies listed below in the Faeroe Islands shall be as follows: 

23 

 
 
  
 
 
Producer 

Definitive  anti-
dumping 
duty  
(%) 

Taric  additional 
code 

P/F PRG Export together with its related producer P/F 
Luna, FO-510 Gøta 

54,4% 

P/F Vestsalmon together with its related producer P/F 
Vestlax, P.O. Box 82, FO-410 Kollafjørður 

30,0% 

P/F Alistødin Á Bakka, Bakkavegur FO-625 Glyvrar 

42,6% 

P/F Atlantic Seafarm, FO-900 Vágur, 

East Salmon, Box 177, FO-700 Klaksvík 

Funningslaks PF, Miðrás 3, FO-100 Tórshavn 

Gulin PF, Miðrás 3, FO-100 Tórshavn 

P/F Hellisvað, FO-727 Árnafjørður 

Kalbaks  Laksaaling  PF,  Í  Brekkum  1,  FO-530 
Fuglafjørður 

Navir, P/F, Argjabodagøta 7, FO-160 Argir 

All other companies 

42,6% 

42,6% 

42,6% 

42,6% 

42,6% 

42,6% 

42,6% 

54,4% 

A474 

A475 

A476 

A477 

A478 

A479 

A480 

A481 

A482 

A483 

A999 

3. Unless otherwise specified, the provisions in force concerning customs duties shall apply.  

Article 2 

Imports under one of 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 acting as an importer shall be exempt from the anti-dumping duties imposed by 
Article  1  provided  that  they  are  imported  in  conformity  with  Article  2  paragraph  2  of 
Commission  Regulation  (EC)  No  1628/2003  as  amended  by  Commission  Regulation  (EC) 
117/2004.  

Manufacturer 

Taric additional code 

Faeroe Islands 

P/F  PRG  Export  together  with  its  related 
producer P/F Luna, FO-510 Gøta 

A474 

Faeroe Islands 

P/F  Vestsalmon  together  with  its  related 
producer P/F Vestlax, P.O. Box 82, FO-410 
Kollafjørður 

A475 

24 

 
 
  
 
 
Article 3 

As  regards  imports  of  the  product  described  in  Article  1(1)  originating  in  Norway  and  the 
Faeroe  Islands  the  amounts  secured  by  way  of  provisional  anti-dumping  duties  pursuant  to 
Commission Regulation (EC) No 1628/2003 shall be definitively collected in accordance with 
the rules set out below.  

The amounts secured in excess of the definitive rates of anti-dumping duties shall be released. 
Where the definitive duties are higher than the provisional duties, only the amounts secured at 
the level of the  provisionally duties shall be definitively collected. 

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

Article 4 

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

Done at Brussels,  

For the Council 

The President 

25