Proposal for a Council Regulation amending Regulation (EC) No 658/2002 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia and Regulation (EC) No 132/2001 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ammonium nitrate originating in Poland and Ukraine, and terminating the anti-dumping proceeding in respect of imports originating in Lithuania
Date: 2004-04-19
Institutions: European Commission
Subjects: Lithuania, Poland, Russia, Ukraine, anti-dumping duty, chemical product, import, originating product

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 19.4.2004 
COM(2004) 276 final 

. 

Proposal for a 

COUNCIL REGULATION 

amending Regulation (EC) No 658/2002 imposing a definitive anti-dumping duty on 
imports of ammonium nitrate originating in Russia and Regulation (EC) No 132/2001 
imposing a definitive anti-dumping duty and collecting definitively the provisional duty 
imposed on imports of ammonium nitrate originating in Poland and Ukraine, and 
terminating the anti-dumping proceeding in respect of imports originating in Lithuania 

. 

(presented by the Commission) 

EN 

   EN 

 
 
 
EXPLANATORY MEMORANDUM 

On 20 March 2004, the Commission initiated a review investigation with regard to, inter alia, 
imports  of  ammonium  nitrate  originating  in  Russia  or  Ukraine.  The  purpose  of  this  review 
was  to  examine  whether  these  measures  should  be  amended  to  take  account  of  the 
enlargement of the Community. 

The  examination  showed  that  it  was  in  the  interests  of  the  Community  to  provide  for  the 
temporary  adaptation  of  the  measures  in  force  to  avoid  an  excessive  negative  impact  on 
importers and users in EU10. 

It is therefore proposed to accept temporary undertakings from the exporters concerned with 
elements  for  minimum  prices  and  quantitative  ceilings  corresponding  to  their  traditional 
export volumes to EU10.  

Member States were consulted and did not oppose the proposal. 

It is proposed that the Council adopt the attached proposal for a Regulation which should be 
published in the Official Journal no later than 20 May 2004. 

2 

 
 
  
 
Proposal for a 

COUNCIL REGULATION 

amending Regulation (EC) No 658/2002 imposing a definitive anti-dumping duty on 
imports of ammonium nitrate originating in Russia and Regulation (EC) No 132/2001 
imposing a definitive anti-dumping duty and collecting definitively the provisional duty 
imposed on imports of ammonium nitrate originating in Poland and Ukraine, and 
terminating the anti-dumping proceeding in respect of imports originating in Lithuania 

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  Community1,  as  last 
amended  by  Regulation  (EC)  No  461/20042  (“the  basic  Regulation”),  and  in  particular 
Articles 8, 11(3), 21 and 22 (c) thereof, 

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

Whereas: 

A. PROCEDURE 

1. Measures in force 

(1) 

Following  an  expiry  and  an  interim  review,  by  Regulation  (EC)  No  658/20023,  the 
Council  imposed  a  definitive  anti-dumping  duty  on  imports  of  ammonium  nitrate 
(“the  product  concerned”)  originating  in  the  Russian  Federation  (“Russia”).  By 
Regulation  (EC)  No  132/20014,  the  Council  imposed  a  definitive  anti-dumping  duty 
on imports of ammonium nitrate originating in Ukraine.  

(2) 

The measures are a specific duty of 47,07 EUR/tonne in the case of Russia and 33,25 
EUR/tonne in the case of Ukraine. 

1 
2 
3 
4 

OJ L 56, 6.3.1996, p. 1. 
OL L 77, 13.3.2004, p. 12. 
OJ L 102, 18.4.2002, p. 1. 
OJ L 23, 25.1.2001, p. 1. 

3 

 
 
  
 
                                                 
2. Investigation 

(3) 

(4) 

(5) 

On 20 March 2004 the Commission announced through the publication of a notice in 
the Official Journal of the European Union5 the initiation of a partial interim review of 
the  measures  in  force  (“the  measures”)  pursuant  to  Articles  11(3)  and  22  (c)  of  the 
basic Regulation.  

The  review  was  launched  at  the  initiative  of  the  Commission  in  order  to  examine 
whether, as a consequence of the enlargement of the European Union on 1 May 2004 
(“Enlargement”)  and,  bearing  in  mind  the  aspect  of  Community  interest,  there  is  a 
need to adapt the measures in order to avoid a sudden and excessively negative effect 
on all interested parties including users, distributors and consumers.  

3. Parties concerned by the investigation 

All  interested  parties  known  to  the  Commission,  including  the  Community  industry, 
associations  of  producers  or  users  in  the  Community,  exporters/producers  in  the 
countries  concerned,  importers  and  their  associations  and  the  relevant  authorities  of 
the  countries  concerned  as  well  as  interested  parties  in  the  ten  new  Member  States 
which acceded to the European Union on 1 May 2004 (“the EU10”) were advised of 
the initiation of the investigation and were given the opportunity to make their views 
known in writing, to submit information and to provide supporting evidence within the 
time limit set out in the notice of initiation. All interested parties who so requested and 
showed that there were reasons why they should be heard were granted a hearing. 

(6) 

In this regard, the following interested parties made their views known: 

(a)  Community producers Association:  

European Fertilizers Manufacturers Association (EFMA) 

(b)  Exporting producers: 

Nak Azot, Moscow, Russia 

OAO “Kirovo – Chepetsky Chimkombinat, Kirovo – Chepetsk, Russia 

Cherkasy Azot, Cherkasy, Ukraine 

JSC Acron, Vellky Novgorod, Russia 

B. PRODUCT UNDER CONSIDERATION 

(7) 

The  product  under  consideration  is  the  same  as  in  the  original  investigation,  i.e. 
ammonium nitrate (‘AN’ or ‘product under consideration’), a solid nitrogen fertiliser 
commonly  used  in  agriculture.  It  is  manufactured  from  ammonia  and  nitric  acid  and 
the nitrogen content exceeds 28 % by weight in pilled or granular form. 

(8) 

The product concerned currently falls within CN codes 3102 30 90 (ammonium nitrate 
other than in aqueous solutions) and 3102 40 90 (mixtures of ammonium nitrate with 

5 

OJ C 70, 20.3.2004, p. 15. 

4 

 
 
  
 
                                                 
calcium carbonate or other inorganic nonfertilising substances, with a nitrogen content 
exceeding 28 % by weight).  

C. RESULTS OF THE INVESTIGATION 

1. Submissions of interested parties in exporting countries 

(9) 

Three  Russian  and  one  Ukrainian  exporting  producers,  Russian  and  Ukrainian 
authorities  claimed  that  due  to  the  high  level  of  the  anti-dumping  duties  and  as  a 
consequence of the extension of the measures to the EU10, their traditional trade flows 
to the acceding States would be significantly disrupted.  

(10) 

In  particular,  they  claimed  that  the  sudden  sharp  price  increases  triggered  by  the 
specific price anti-dumping duties rendered the product prohibitively expensive for the 
end users in the EU10.  

2. Comments received from the Community Industry  

(11)  The  Community  Industry  stated  that  although  average  prices  in  the  EU10  were 
significantly lower than those in the European Union as constituted immediately prior 
to  1  May  2004  (“the  EU15”),  it  would  not  oppose  any  proposals  for  intermediate 
measures  to  be  taken  over  a  transitional  period  which  do  not  adversely  affect  its 
situation. 

3. Comments received from Member States 

(12)  The  Spanish  authorities  expressed  concerns,  however,  as  the  remaining  Member 

States, they did not oppose the transitional measures proposed by the Commission. 

(13) 

It  was  claimed  that  several  EU10  Member  States  had  imposed  measures  on  the 
product  concerned  and  that  these  measures  ensured  a  level  of  protection  in  EU10 
Member States which lapsed by the Enlargement. The measures in place were:  

(a)  Safeguard quotas imposed in Poland in June 2002 on the imports of ammonium 
nitrate originating in the Russian Federation and in December 2002 safeguard 
measures on imports of ammonium nitrate originating in Ukraine; 

(b)  Safeguard measures imposed in Hungary in July 2003 with additional duty of 
11.600  HUF  /t  on  imports  of  ammonium  nitrate  originating  in  the  Russian 
Federation and Ukraine;  

(c)  Safeguard  measures  imposed  in  Czech  Republic  in  February  2003  with 
additional  duty  of  16  %  on  the  imports  of  ammonium  nitrate  originating  in 
Ukraine and safeguard measures with additional duty of 35 % on the product 
concerned originating in the Russian Federation.  

(14)  Despite  of  that,  the  authorities  of  EU10  Member  States  considered  that  special 
transitional  arrangements  should  apply  to  imports  of  the  product  concerned  from 
Ukraine and Russia following the Enlargement. In this regard, it was argued that the 
product concerned is of significant importance for agricultural users in the EU10 since 
it cannot be easily substituted by another product.  

5 

 
 
  
 
(15) 

It was further considered that a sharp and sudden increase in ammonium nitrate prices 
for farmers in the EU10 should be prevented; as they would, otherwise, face additional 
hardship  in  adjusting  to  the  new  competition  of  agricultural  producers  in  the  EU15. 
The  importance  of  this  issue  was  further  underlined  by  the  significant  value  of  the 
exports  (around  59  million  Euros  per  annum)  from  Ukraine  and  Russia  to  the  EU10 
compared  to  exports  to  the  EU15  of  around  39  million  Euros  per  annum  from  these 
countries. 

(16) 

It was therefore argued that import supply into the EU10 of the product concerned at 
prices which do not suddenly and sharply increase is of significant importance to these 
end users in the EU10.  

(17)  Accordingly,  these  authorities  took  the  view  that  imports  of  the  product  concerned 
originating in Ukraine and Russia into the EU10 should receive special treatment with 
regard to the anti-dumping measures. 

4. Assessment 

(18)  On  the  basis  of  the  available  data  and  information,  an  analysis  was  made  which 
confirmed  that  a  marked  difference  did  exist  between  the  prevailing  prices  for  the 
product  concerned  in  the  EU10  and  the  EU15  (e.g.  in  EU10  in  2000-2003  average 
price was € 70 per tonne from Russia and €84 per tonne from Ukraine, whilst in EU15 
in 2000-2003 was €100 per tonne from Russia and  €108 per tonne from Ukraine).  

(19)  The analysis also showed the import volumes coming into the EU10 from Ukraine and 
Russia were significant (in 2000-2003 on average around 817 thousands tonnes). 

5. Conclusion 

(20)  All these various aspects and interests have been taken into account and considered as 
a whole. It emerges from this that the EU10 importers’ and users’ interests would be 
substantially negatively affected by the sudden application of the existing measures if 
they were not to be temporarily adapted.  

(21)  However, by contrast, as the interest of the Community Industry itself confirmed it, its 
interests  would  not  be  unduly  negatively  affected  if  the  measures  were  to  be 
temporarily adapted as they cannot currently fully satisfy the demands of customers in 
the EU10. 

(22) 

In such circumstances, it can reasonably be concluded in view of the specific situation 
of Enlargement, that it is not in the Community interest to apply the existing measures 
without temporary adaptation. However, such adaptation with regard to imports of the 
product concerned into the EU10 should not be such as to significantly undermine the 
desired level of trade defense. 

6 

 
 
  
 
(23)  To  this  end,  different  ways  were  examined  on  how  to  best  protect  the  Community 
Industry  from  injurious  dumping  whilst,  at  the  same  time,  take  into  account  the 
Community  interest  aspects  by  lessening  the  economic  shock  of  the  anti-dumping 
duties to traditional buyers in the new Member States during the period of economic 
adjustment following Enlargement. 

(24)  Due  to  the  existence  of  the  protective  measures  in  some  EU-10  countries  prior 
Enlargement, it was considered that this could be best achieved by allowing the 50 % 
of  traditional  export  volumes,  i.e.  export  volumes  not  affected  by  the  protective  pre 
Enlargement  measures  in  EU10,  from  Ukraine  and  Russia  to  the  EU10  be  imported 
free of anti-dumping duties for a transitional period, provided that, in lieu of levying 
anti-dumping  duties,  export  prices  to  these  Member  States  would  be  increased  to 
levels  which  significantly  contribute  to  the  removal  of  injury.  In  this  context,  any 
exports  to  the  EU10  above  these  traditional  export  volumes  would  be  subject  to  the 
anti-dumping duties, as would exports to the EU15. 

6. Undertakings 

(25)  Having  assessed  the  different  options  on  how  best  to  allow  these  traditional  export 
flows to the EU10 to continue, and ensure the significant contribution to the removal 
of  injury,  it  was  considered  that  the  most  appropriate  means  was  through  the 
acceptance  of  voluntary  undertakings  from  the  cooperating  parties  with  elements  for 
minimum  import  prices  and  quantitative  ceilings.  Therefore,  in  accordance  with 
Article 8 (2) of the basic Regulation, undertakings were suggested by the Commission 
to the exporting producers concerned. 

(26) 

(27) 

(28) 

In this context, it should be noted that, in accordance with Article 22 (c) of the basic 
Regulation,  the  special  circumstances  of  Enlargement  were  taken  into  account  when 
the  terms  of  the  undertakings  were  established.  They  constitute  a  special  measure  in 
that  they  provide  a  temporary  way  of  adapting  existing  measures  for  the  enlarged 
Community of twenty five Member States.  

It  should  also  be  noted  that  the  undertakings  are  not  directly  equivalent  to  an  anti-
dumping  duty  since  the  minimum  import  prices  established  are  at  lower  levels  than 
would  usually  be  the  case.  To  do  otherwise  would,  as  mentioned  above,  render  the 
price of the product concerned prohibitively expensive to end users in the EU10 and, 
therefore,  not  be  in  the  Community  interest.  Nevertheless,  the  exporting  producers 
undertook  to  raise  their  prices  to  levels  which  significantly  contribute  to  the 
elimination of injury.  

Import  volumes  (“ceilings”)  were  therefore  established  for  the  exporting  producers 
Ukraine and Russia, using as a basis 50 % of their traditional export volumes to  the 
EU10  in  2001  and  2002.  It  should  be  noted,  however,  that  abnormal  increases  in 
export  volumes  to  the  EU10  observed  in  the  last  few  months  of  2003  and  the  first 
months of 2004 were deducted from the traditional volumes used for determining the 
ceilings. 

7 

 
 
  
 
(29)  When  selling  to  the  EU10  under  the  terms  of  their  undertakings,  the  exporting 
producers concerned should agree to broadly respect their traditional selling patterns to 
individual  customers  in  the  EU10.  The  exporting  producers  should  therefore  aware 
that  any  undertaking  offer  can  only  be  considered  as  practicable,  and  therefore 
acceptable if, for sales covered by the undertakings, they would broadly maintain such 
traditional patterns of trade with their customers in the EU10.  

(30)  The  exporting  producers  should  also  be  aware  that,  under  the  terms  of  the 
undertakings,  if  it  is  found  that  these  sales  patterns  change  significantly,  or  that  the 
undertakings become in any way difficult or impossible to monitor, the Commission is 
entitled  to  withdraw  acceptance  of  the  company’s  undertaking  resulting  in  definitive 
anti-dumping  duties  being  imposed  in  its  place  at  the  level  specified  in  Regulation 
(EC) No 658/2002 and Regulation (EC) No 132/2001 or it may adjust the level of the 
ceiling, or it may take other remedial action.  

(31)  Accordingly, any undertaking offers respecting the above conditions may be accepted 

by the Commission by Commission Regulation. 

D. AMENDMENT OF REGULATION (EC) NO 658/2002 AND REGULATION (EC) 
NO 132/2001 

(32) 

In  view  of  the  above,  it  is  necessary  to  provide,  in  the  event  of  undertakings  being 
accepted  by  the  Commission  in  a  subsequent  Commission  Regulation,  for  the 
possibility  to  exempt  imports  to  the  Community  made  under  the  terms  of  such 
undertakings  from  the  anti-dumping  duty  imposed  by  Regulation  (EC)  No  658/2002 
and Regulation (EC) No 132/2001 by amending these Regulations.  

HAS ADOPTED THIS REGULATION: 

Article 1 

1. 

Article 2 of Regulation (EC) No 658/2002 is hereby replaced by the following: 

‘Article 2 

1. 

Imports  declared  for  release  into  free  circulation  shall  be  exempt  from  the  anti-
dumping duties imposed by Article 1, provided that they are produced by companies 
from  which  undertakings  are  accepted  by  the  Commission  and  whose  names  are 
listed  in  the  relevant  Commission  Regulation,  as  from  time  to  time  amended,  and 
have  been  imported  in  conformity  with  the  provisions  of  the  same  Commission 
Regulation.  

8 

 
 
  
 
2. 

The imports mentioned in paragraph 1 shall be exempt from the anti-dumping duty 
on condition that:  

(a) 

(b) 

the  goods  declared  and  presented  to  customs  correspond  precisely  to  the 
product described in Article 1, 

a  commercial  invoice  containing  at  least  the  elements  listed  in  the  Annex  is 
presented  to  Member  States'  customs  authorities  upon  presentation  of  the 
declaration for release into free circulation; and 

(c) 

the  goods  declared  and  presented  to  customs  correspond  precisely  to  the 
description on the commercial invoice.’  

2. 

Article 2 of Regulation (EC) No 658/2002 is hereby renumbered Article 3. 

1. 

Article 2 of Regulation (EC) No 132/2001 is hereby replaced by the following: 

Article 2 

‘Article 2 

1. 

Imports  declared  for  release  into  free  circulation  shall  be  exempt  from  the  anti-
dumping duties imposed by Article 1, provided that they are produced by companies 
from  which  undertakings  are  accepted  by  the  Commission  and  whose  names  are 
listed  in  the  relevant  Commission  Regulation,  as  from  time  to  time  amended,  and 
have  been  imported  in  conformity  with  the  provisions  of  the  same  Commission 
Regulation.  

2. 

The imports mentioned in paragraph 1 shall be exempt from the anti-dumping duty 
on condition that:  

(a) 

(b) 

the  goods  declared  and  presented  to  customs  correspond  precisely  to  the 
product described in Article 1, 

a  commercial  invoice  containing  at  least  the  elements  listed  in  the  Annex  is 
presented  to  Member  States'  customs  authorities  upon  presentation  of  the 
declaration for release into free circulation; and 

(c) 

the  goods  declared  and  presented  to  customs  correspond  precisely  to  the 
description on the commercial invoice.’  

2. 

3. 

Article 2 of Regulation (EC) No 132/2001 is hereby renumbered Article 3. 

Article 3 of Regulation (EC) No 132/2001 is hereby renumbered Article 4. 

9 

 
 
  
 
Article 3 

This Regulation shall enter into force the day after 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, […] 

For the Council 
The President   

10 

 
 
  
 
 
 
ANNEX  

The  following  elements  shall  be  indicated  on  the  commercial  invoice  accompanying  the 
company's  sales  of  ammonium  nitrate  to  the  Community  which  are  subject  to  the 
Undertaking: 

1. 

2. 

3. 

4. 

5. 

6. 

The  heading  "COMMERCIAL  INVOICE  ACCOMPANYING  GOODS  SUBJECT 
TO AN UNDERTAKING". 

The  name  of  the  company  mentioned  in  Article  1  of  Commission  Regulation 
[INSERT NUMBER] issuing the commercial invoice. 

The commercial invoice number. 

The date of issue of the commercial invoice. 

The TARIC additional code under which the goods on the invoice are to be customs 
cleared at the Community frontier.  

The exact description of the goods, including: 

– 

– 

– 

– 

– 

Product Code Number (PCN) used for the purposes of the investigation and the 
undertaking (e.g. PCN I, PCN 2 etc), 

plain  language  description  of  the  goods  corresponding  to  the  PCN  concerned 
(e.g.  PCN  1:  ammonium  nitrate  not  containing  any  additional  elements  – 
Standard product; PCN 2: ammonium nitrate containing additional elements in 
special mixtures, etc), 

company product code number (CPC) (if applicable),  

CN code, 

quantity (to be given in tonnes). 

7. 

The description of the terms of the sale, including: 

– 

– 

– 

– 

price per tonne, 

the applicable payment terms, 

the applicable delivery terms, 

total discounts and rebates. 

8. 

Name  of  the  company  acting  as  an  importer  in  the  Community  to  which  the 
commercial invoice accompanying goods subject to an undertaking is issued directly 
by the company. 

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9. 

The name of the official of the company that has issued the invoice and the following 
signed declaration: 

“I, the undersigned, certify that the sale for direct export to the European Community of the 
goods  covered  by  this  invoice  is  being  made  within  the  scope  and  under  the  terms  of  the 
undertaking  offered  by  [company],  and  accepted  by  the  European  Commission  through 
Regulation  [INSERT  NUMBER].  I  declare  that  the  information  provided  in  this  invoice  is 
complete and correct.” 

12