Council Regulation (EC) No 993/2004 of 17 May 2004 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: 2004-05-17
Institutions: Council of the European Union
Subjects: Lithuania, Poland, Russia, Ukraine, anti-dumping duty, anti-dumping legislation, fertiliser, import, originating product

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COUNCIL REGULATION (EC) No 993/2004

of 17 May 2004

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,

pursuant to Articles 11(3) and 22(c) of the basic Regu-
lation.

Having regard to the Treaty
Community,

establishing the European

(4)

Having regard to Council Regulation (EC) No 384/96 of 22
December 1995 on protection against dumped imports from
countries not members of the European Community (1), (‘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,

(5)

Whereas:

A. PROCEDURE

1. Measures in force

Following an expiry and an interim review, by Regulation
(EC) No 658/2002 (2) 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 132/2001 (3),
the
Council
imposed a definitive anti-dumping duty on
imports of ammonium nitrate originating in Ukraine.

the

review was

initiative of

launched at

the
The
Commission in order to examine whether, as a conse-
quence 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

in the Community,

interested parties known to the Commission,
All
associations of
including the Community industry,
exporters/
producers or users
importers and
producers in the countries concerned,
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 oppor-
tunity 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:

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.

European
(EFMA).

Fertilizers Manufacturers Association

2. Investigation

(b) Exporting producers:

Nak Azot, Moscow, Russia

On 20 March 2004 the Commission announced through
the publication of a notice in the Official Journal of the
European Union (4)
interim
(‘the measures’)
review of

the initiation of a partial
in force

the measures

OAO Kirovo — Chepetsky Chimkombinat, Kirovo —
Chepetsk, Russia

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

(EC) No 461/2004 (OJ L 77, 13.3.2004, p. 12).

Cherkasy Azot, Cherkasy, Ukraine

(2) OJ L 102, 18.4.2002, p. 1.
(3) OJ L 23, 25.1.2001, p. 1.
(4) OJ C 70, 20.3.2004, p. 15.

JSC Acron, Vellky Novgorod, Russia.

(1)

(2)

(3)

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Official Journal of the European Union

L 182/29

(7)

(8)

(9)

B. PRODUCT UNDER CONSIDERATION

(13)

investigation,

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

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
which lapsed by the Enlargement. The measures in
place were:

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

C. RESULTS OF THE INVESTIGATION

1. Submissions of

interested parties in exporting

countries

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 conse-
quence of the extension of the measures to the EU10,
their traditional trade flows to the EU10 would be signif-
icantly disrupted.

(a) Safeguard quotas imposed in Poland in June 2002 on
the imports of ammonium nitrate originating in
Russia 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 Russia
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 Russia.

(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.

transitional

arrangements

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

should

apply

2. Comments

received

from the Community

(15)

Industry

(11)

The Community Industry stated that although average
prices in the EU10 were significantly lower than those
in the European Union as constituted 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.

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 EUR 59 million 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.

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.

(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.

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(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.

(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
the
economic shock of the anti-dumping duties to traditional
buyers in the EU10 during the period of economic
adjustment following Enlargement.

aspects by

lessening

interest

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 EUR 70 per
tonne from Russia and EUR 84 per tonne from Ukraine,
whilst in EU15 in 2000-2003 was EUR 100 per tonne
from Russia and EUR 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 thousand 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 appli-
cation 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
they cannot currently fully
temporarily adapted as
satisfy the demands of customers in the EU10.

to Enlargement,

traditional export volumes,

(24) Due to the existence of the protective measures in some
EU10 Member States prior
it was
considered that this could be best achieved by allowing
i.e. export
the 50 % of
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
in lieu of levying anti-dumping
period, provided that,
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
flows to the EU10 to
allow these traditional export
continue, and ensure the significant contribution to the
removal of injury, it was considered that the most appro-
priate means was through the acceptance of voluntary
undertakings
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.

cooperating

from the

(22)

in the Community interest

In such circumstances, it can reasonably be concluded in
view of the specific situation of Enlargement, that it is
not
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 signif-
icantly undermine the desired level of trade defense.

(26)

In this context,
in accordance
it should be noted that,
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.

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(27)

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
the
would, as mentioned above, render the price of
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
to levels which significantly
contribute to the elimination of injury.

their prices

D. AMENDMENT OF REGULATIONS (EC) No 658/2002

AND (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 possi-
bility to exempt imports to the Community made under
the terms of such undertakings from the anti-dumping
duty imposed by Regulations (EC) No 658/2002 and (EC)
No 132/2001 by amending these Regulations,

(28)

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.

(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 be aware that any under-
taking offer can only be considered as practicable, and
therefore acceptable if, for sales covered by the under-
takings,
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
the
undertakings become in any way difficult or impossible
the Commission is entitled to withdraw
to monitor,
acceptance of
the company's undertaking resulting in
definitive anti-dumping duties being imposed in its
place at the level specified in Regulations (EC) No 658/
2002 and (EC) No 132/2001 or it may adjust the level of
the ceiling, or it may take other remedial action.

that

(31) Accordingly, any undertaking offers respecting the above
conditions may be accepted by the Commission, by
Commission Regulation.

HAS ADOPTED THIS REGULATION:

Article 1

In Regulation (EC) No 132/2001 the following Article shall be
inserted:

‘Article 1A

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 Regu-
lation.

The imports mentioned in paragraph 1 shall be exempt

2.
from the anti-dumping duty on condition that:

(a)

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

(b) a commercial invoice containing at least the elements listed
in the Annex is presented to Member States' customs autho-
rities 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.’

Article 2

In Regulation (EC) No 658/2002 the following Article shall be
inserted:

‘Article 1A

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 Regu-
lation.

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The imports mentioned in paragraph 1 shall be exempt

2.
from the anti-dumping duty on condition that:

(c)

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

(a)

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

Article 3

The text set out in the Annex to this Regulation shall be added
to Regulations (EC) No 132/2001 and (EC) No 658/2002.

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

Article 4

This Regulation shall enter into force on the day following 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, 17 May 2004.

For the Council

B. COWEN
The President

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ANNEX

‘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. The heading “COMMERCIAL INVOICE ACCOMPANYING GOODS SUBJECT TO AN UNDERTAKING”.

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

commercial invoice.

3. The commercial invoice number.

4. The date of issue of the commercial invoice.

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

frontier.

6. 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 (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.

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.”.’