Commission Regulation (EC) No 206/2005 of 4 February 2005 imposing definitive safeguard measures against imports of farmed salmon
Date: 2005-02-04
Institutions: European Commission
Subjects: Ireland, United Kingdom, fish, fish farming, import, protective clause

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COMMISSION REGULATION (EC) No 206/2005

of 4 February 2005

imposing definitive safeguard measures against imports of farmed salmon

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

(4)

Having regard to Council Regulation (EC) No 3285/94 of 22
December 1994 on common rules for imports and repealing
Regulation (EC) No 518/94 (1), as last amended by Regulation
(EC) No 2474/2000 (2), and in particular Article 16 thereof,

Having regard to Council Regulation (EC) No 519/94 of 7
March 1994 on common rules for imports from certain third
countries and repealing Regulations (EEC) No 1765/82, (EEC)
No 1766/82 and (EEC) No 3420/83 (3), as last amended by
Regulation (EC) No 427/2003 (4), and in particular Article 15
thereof,

After consultations within the Advisory Committee established
under Article 4 of Regulation (EC) No 3285/94 and of Regu-
lation (EC) No 519/94 respectively,

Whereas:

(1)

(2)

(3)

1. PROCEDURE

On 6 February 2004, Ireland and the United Kingdom
trends in imports of
informed the Commission that
farmed Atlantic salmon appeared to call for safeguard
measures under Regulations
(EC) No 3285/94 and
519/94; submitted information containing the evidence
available as determined on the basis of Article 10 of
Regulation (EC) No 3285/94 and Article 8 of Regulation
(EC) No 519/94; and requested the Commission to take
safeguard measures under those instruments.

Ireland and the United Kingdom provided evidence that
imports
farmed
into the European Community of
Atlantic salmon are increasing rapidly both in absolute
terms, and relative to Community production and
consumption.

They alleged that the increase in the volume of imports
of
farmed Atlantic salmon has, among other conse-
quences, had a negative impact on the prices of like or
directly competitive products in the Community, and on
the market share held by the Community producers,
resulting in damage to the Community producers.

(1) OJ L 349, 31.12.1994, p. 53.
(2) OJ L 286, 11.11.2000, p. 1.
(3) OJ L 67, 10.3.1994, p. 89.
(4) OJ L 65, 8.3.2003, p. 1.

(5)

(6)

(7)

Ireland and the United Kingdom further advised that,
based on the information submitted by the Community
producers, any delay in the adoption of
safeguard
measures by the European Community would cause
damage which it would be difficult to repair, and that
measures should therefore be adopted as a matter of
urgency.

The Commission informed all Member States of
the
situation and consulted with them on the terms and
import trends and the evidence
conditions of imports,
as to serious injury, and the various aspects of
the
economic and commercial situation with regard to the
Community product in question.

On 6 March 2004, the Commission initiated an investi-
gation relating to serious injury or threat thereof to the
Community producers of the product
like or directly
competitive with the imported product, which has been
defined as farmed salmon, whether or not filleted, fresh,
chilled or frozen (‘the product concerned’) (5) as explained
below. The investigation period (IP)
is 2003, and the
period under examination in the investigation is from
the beginning of 2000 to the end of 2003.

the

advised

officially

The Commission
exporting
producers and importers as well as their representative
associations known to be concerned, the representatives
of exporting countries and the Community producers of
the investigation. The Commission sent questionnaires to
all these parties, to representative associations of salmon
farmers in the Community, and to those parties who
made themselves known within the time limits set in
the Notice of
to Articles 5 of
Council Regulation (EC) No 519/94 and 6 of Council
Regulation (EC) No 3285/94 the Commission also gave
parties directly concerned the opportunity to make their
views known in writing and to request a hearing.

Initiation. Pursuant

(8)

On 13 August 2004, the Commission imposed provi-
sional safeguard measures. These were referred to the
Council under Articles 15(5) of Council Regulation (EC)
No 519/94 and 16(7) of Council Regulation (EC)
No 3285/94 and subsequently lapsed on 6 December
2004.

(5) OJ C 58, 6.3.2004, p. 7.

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(9)

Following the publication of the provisional measures,
the Commission continued its investigation with a view
to reaching definitive findings. Certain governments,
certain exporting producers and their representative asso-
ciations, the Community producers, suppliers, processors
and importers
associations
submitted comments in writing. The oral and written
comments submitted by the parties were considered
and taken into account
in reaching the definitive
information which was deemed
findings. All
necessary for the purpose of a final determination was
sought and verified. Verification visits were carried out at
the premises of eight Community producers.

representative

and their

the

(10) All cooperating parties were informed of the essential
facts and considerations on the basis of which it was
intended to impose definitive safeguard measures and
the form of the proposed measures. They were granted
the opportunity to submit comments and these were
considered, and, where deemed appropriate, taken into
account in the definitive findings.

2. LIST OF COOPERATING PARTIES

Producers

Ardvar Salmon Ltd, Inverness, Scotland, United Kingdom.

Atlantic West, Western Isles HS7 5LZ, Scotland, United
Kingdom.

Hennover Salmon, West George Street, Scotland, United
Kingdom.

Pan Fish Scotland Ltd, Argyll, Scotland, United Kingdom.

Loch Duart Ltd, Scourie By Lairg Sutherland, Scotland,
United Kingdom.

Marine Harvest
United Kingdom.

(Scotland), Craigcrook Road, Scotland,

Orkney Salmon Ltd, Bellshill, Scotland, United Kingdom.

Stolt Sea Farm Ltd, Western Isles, Scotland, United
Kingdom.

West Minch Salmon Ltd, Western Isles, Scotland, United
Kingdom.

Western Isles Seafood Co Ltd, Western Isles, Scotland,
United Kingdom.

Sidinish Salmon Ltd, Western Isles, Scotland, United
Kingdom.

Creevin Salmon, Mountcharles, Ireland.

Marine Harvest Ireland, County Donegal, Ireland.

Importers/Processors

Laschinger GmbH, Bischofsmais, Germany.

Syndicat National de l'Industrie du Saumon Fumé, Paris
Cedex 14, France.

Vensy Espana SA, Malaga, Spain.

SIF France, Boulogne sur Mer, France.

(11)

Moulin de la Marche, Chateaulin, France

Group Labeyrie, St-Vincent-De-Tyrosse, France.

Exporters
Aalesundfisk AS, Aalesund, Norway.
Marine Harvest Norway AS, Bergen, Norway.
Cultivos Yadran SA, Renca, Chile.
Invertec Pesquara Mar de Chiloe SA, Providencia, Chile.
Marine Harvest Chile SA, Puerto Montt, Chile.
Pesca Chile SA, Piso 6, Chile.
Compania Pesquera Camanchaca S.A, Puerto Montt,
Chile.
Chilefood Sociedad Anonima, Montalva No 4.800, Chile.
Fjord Seafood Chile S.A, Puerto Montt, Chile.
Pesquera Los Fiordos Ltda, Puerto Montt, Chile.
Salmones Pacific Star S.A, Santiago, Chile.
Patagonia Salmon Farming S.A, Puerto Montt, Chile.
Salmones Mainstream S.A, Puerto Montt, Chile.
Yadran Quellon S.A, Santiago, Chile.
Salmones Friosur, Puerto Chabuco, Chile.
Aguas Claras, Puerto Montt, Chile.
Pesquera EICOSAL, Puerto Montt, Chile.
Cultivos Marinos Chiloe, Chiloe Island, Chile.
Patagonia Salmon farming, Puerto Montt, Chile.
Salmones Multiexport Ltda, Puerto Montt, Chile.
East Salmon P/F, Klaksvik, Faeroe Islands.
Faeroe Seafood Prime, Tórshavn, Faeroe Islands.
P/F Bakkafrost, Glyvrar, Faeroe Islands.
Landshandilin P/F, Tórshavn, Faroe Island.
Viking Seafood P/F, Strendur, Faroe Island.
S. A. Salmon Sp/f, Faeroe Island.
PRG Export Limited, Gota, Faeroe Island.
P/F Vestsalmon, Kollafjørdur, Faeroe Islands.
Samherji hf, Akureyri, Iceland.
Nordlaks Oppdrett AS Stokmarkers, Norway.
Seafarm Invest AS Lovund, Norway.
Norwegian Seafood Federation, Bergen, Norway.
The Faeroe Fish Farming Association, Tórshavn, The
Faeroe Islands.

Suppliers
Ewos, West Lothian, United Kingdom.
Havsbrun Ltd, Fuglafjordur, Faeroe Islands.
Landcatch Ltd, Argyll, United Kingdom.

3. PRODUCT CONCERNED

The product in respect of which the Commission was
informed that
for
safeguard measures is farmed Atlantic salmon, whether
or not filleted, fresh, chilled or frozen.

trends in imports appear

to call

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(12) However,

it is considered that the product concerned
should be all
farmed salmon. To restrict the product
concerned to farmed Atlantic salmon would be to
define the product concerned too narrowly. Based on
species of
characteristics of different
the physical
salmon (size, shape, taste etc), the production process,
and the substitutability of all types of farmed salmon
from the perspective of the consumer,
it is considered
that all
farmed salmon is a single product. Similarly,
whilst farmed salmon is sold in different preparations
(whole fish gutted, whole fish head-off and gutted,
fillets),
these different preparations all serve the same
end use and are readily capable of being substituted.

(13)

and

food

processors

Some parties argued that frozen salmon is a different
product to fresh salmon and should not be considered
as part of the product concerned. One party noted that it
is subject to a different classification for tariff purposes
and claimed that it is intended for, and preferred by,
industrial
smokers, whilst
consumers prefer fresh salmon. Another claimed that it
is unsuitable as a raw material for salmon smoking. It
was also argued that
the infrastructure required by
is different as between fresh and frozen
processors
there were entirely
salmon.
separate markets for fresh and frozen salmon indicated
by a lack of correlation between fresh and frozen salmon
prices and specific instances of retailers, processors and
consumer profiles which required one preparation but
not the other were provided. One party claimed that
the normal presentations for frozen salmon (e.g. whole
fish, fillet, etc.) were different to those for fresh salmon.

It was also claimed that

for

classifications

existence of different

(14) However, these claims were found to be unsubstantiated.
The
tariff
to be
is a single factor amongst others
purposes
considered and is not in itself determinative. Processors
use both fresh and frozen farmed salmon. Both fresh and
frozen preparations are commonly sold at retail level and
commonly at the same outlets (though some outlets only
there is
sell either
evidence of a small price differential. Both are available
in different presentations and directly consumed by
consumers. Although some consumers may prefer to
purchase the product in its fresh/chilled state and other
in its frozen state, and some preparations are perceived
to be of higher quality than others, these preferences and
perceptions are not significant. Both preparations serve
the same end use and compete in the same market.

frozen salmon) even if

fresh or

(15) One party claimed that there is no cross-elasticity of
demand between fresh and frozen salmon, and referred
to the findings in Council Regulation (EC) No 930/2003
in support of
that
Regulation recognised the existence of price competition
between these two products.

this proposition. However,

infact

(16)

In consequence, the argument that frozen salmon is a
different product to fresh salmon had to be rejected.

(17)

Therefore, it is considered that farmed (other than wild)
salmon (whether fresh, chilled or frozen) in the different
preparations described is a single product. It is currently
ex 0302 12 00,
codes
classified
ex 0303 11 00,
ex 0303 22 00,
ex 0303 19 00,
ex 0304 10 13 and ex 0304 20 13.

within

CN

4. LIKE OR DIRECTLY COMPETITIVE PRODUCTS

(18) An examination has been undertaken to establish
whether
the product produced by the Community
producers — i.e. farmed salmon (hereinafter referred to
as ‘the like product’) is like or directly competitive with
the imported product concerned.

(19)

In reaching a determination, the following findings in
particular were taken into account.

(a)

the imported product and the Community product
share the same international classification for tariff
purposes at HS code level
(6 digits). Furthermore,
they share the same or similar physical properties
such as taste, size, shape and texture. The domestic
is often marketed as a premium quality
product
product and often enjoys a price premium at the
retail
require
products to be completely identical, and the minor
variations in quality are not sufficient to change the
overall finding of likeness between the imported and
domestic products;

‘likeness’ does not

level. However,

(b) the imported product and the Community product
were sold via similar or identical sales channels, price
information was readily available to buyers and the
product
the
and
Community producers competed mainly on price;

concerned

product

the

of

(c)

the imported product and the Community product
both serve the same or similar end-uses, they were,
therefore, alternative or substitute products and were
easily interchangeable;

(d) the imported product and the Community product
were both perceived by consumers as alternatives to
satisfy a particular want or demand, in this respect
the differences identified by certain exporters and
importers were simply minor variations.

(20)

Therefore, the conclusion reached is that the imported
product and the Community product are ‘like or directly
competitive’.

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5. IMPORTS

5.1. Increase in imports

5.1.1. Introduction

(21) An examination has been undertaken based on data for
the period 2000 to 2003, focussing on imports in the
most recent period for which reliable data are available,
to establish whether the product concerned is imported
into the Community in such greatly increased quantities,
absolute or
relative to total Community production,
and/or on such terms or conditions as to cause, or
threaten to cause, serious injury to the Community
producers. One party claimed that the import increase
was due to the fact that imports of wild salmon were
included in the import data. However, the investigation
showed that although Eurostat data does not distinguish
between wild and farmed salmon, the available infor-
indicates
mation (US and Canadian export statistics)
that imports of wild salmon to the Community have in
fact decreased since 2001. Therefore, the inclusion of
imports of all salmon in the Eurostat data did not
cause the increase in imports observed in those data.
One party also claimed that 2000 was an inappropriate
the analysis undertaken, claiming that
base year
salmon prices were unusually high in that
year.
However, the analysis focuses on the key developments
in the most recent period, and changing the base year to
1999 or 2001 would not change the outcome of that
analysis.

for

increased again to 239 % in 2003. Although this
represents a reduction compared to 2000,
it is noted
that following a dip in 2001,
imports have increased
relative to production in each year since. In addition, it
is recalled that in 2003 there was an absolute increase in
imports of 15 %, a much higher rate of increase than in
previous years.

(25) Quarterly figures for the years 2002 and 2003 show that
in 2003 quarterly imports were higher than in the same
quarter in 2002, and that the highest increases (up to
20,8 %) occurred in the second half of 2003.

Q1
2002

Q2
2002

Q3
2002

Q4
2002

Volume (t)

86 753

96 988

93 375

119 657

Q1
2003

Q2
2003

Q3
2003

Q4
2003

Volume (t)

92 667

108 655

112 862

141 763

6,8 %

12,0 %

20,8 %

18,5 %

Year on year
increase

Source: Eurostat.

5.1.3. Conclusion

(22)

The definitive findings set out below are thus based on
the data from 2000 to 2003.

(26)

Based on the import data for the period from 2000 to
2003, it is concluded that there is a recent, sudden, sharp
and significant increase in imports, both absolute and
relative to production.

5.1.2. Volume of imports

2000

2001

2002

2003

Imports

372 789

379 764

396 772

455 948

Year on year
increase

Total Community
Production

Imports/
Production

2 %

4 %

15 %

146 664

161 854

168 374

190 903

254 %

235 %

236 %

239 %

Source:

Import
figures provided by Eurostat. Community production
calculated from government data for Ireland and the United
Kingdom and industry data for France and Latvia.

(27)

(28)

(23)

Imports increased from 372 789 tonnes in 2000 to
455 948 tonnes in 2003, an increase of 22 %. Between
2002 and 2003, imports increased by 15 %.

(24)

Relative to Community production,
from
254 % in 2000 to 235 % in 2001, but have since

imports fell

5.2. Prices of imports

The conditions under which imports have been made
have also been considered by reference to Eurostat
data. While the data includes a small quantity of wild
salmon, this is considered to have had no appreciable
effect on prices.

In this regard, it should be noted that between September
1997 and May 2003, a significant proportion of imports
of farmed salmon from Norway (which holds around
55 % of the Community market) were subject to price
undertakings in the context of the then existing anti-
dumping and anti-subsidy measures.
In the course of
2002, violations of these price undertakings by certain
Norwegian exporting producers began to undermine the
effectiveness of that instrument and caused price falls.
the anti-dumping and
The proposed termination of
from Norway
imports
anti-subsidy measures against
was then announced in December 2002 and those
measures were terminated in May 2003. Import prices
during 2002 and the first half of 2003 fell partly due to
violation of, or voluntary withdrawal
the price
undertakings by some Norwegian exporters.

from,

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(29)

Import prices fell by 28,5 % between 2000 and 2003.
This is considered to be outwith the normal price fluc-
the
tuation on the market because of
decrease
exporting
producers were not earning supernormal profits in the
year 2000 and the cost of production has not materially
decreased between 2000 and 2003.

terms, and because

the extent of

in absolute

6. DEFINITION OF THE COMMUNITY PRODUCERS

(33) Almost all production of the product concerned in the
Community was in Scotland and Ireland, although there
are also two producers in France and at least one in
Latvia.

2000

3,55

2001

2,99

2002

2,87

2003

2,54

Import price

Source: Eurostat.

(30)

Recent price developments are more clearly illustrated by
quarterly data. Having remained relatively stable at
import
between EUR 2,83 and EUR 2,93 in 2002,
prices dropped from EUR 2,87 in Q1 2003 to
EUR 2,24 in Q3 2003 before making a partial
recovery to EUR 2,48 in Q4 2003.

Import price

Q1
2002

2,83

Q1
2003

Q2
2002

2,93

Q2
2003

Q3
2002

2,86

Q3
2003

Import price

2,87

2,62

2,24

Source: Eurostat.

Q4
2002

2,85

Q4
2003

2,48

(31)

Eurostat data for the first semester of 2004 indicate that
prices initially increased albeit remaining below their
average in 2003, but then followed a downward trend.
The latest available information indicates that prices are
continuing to follow a downward trend and are very low.
Despite some claims that prices would increase, these
have not been substantiated and the current extremely
low prices
in
exporting countries.

confirmed by industry sources

are

5.3. Market share of imports

(32)

The market share of imports fell from 73,5 % in 2000 to
71,9 % in 2001, and remained stable at about this level
in 2002 (72 %). In 2003, imports increased their market
share from 72,0 % in 2002 to 73,9 %, an increase of 1,9
percentage points and their highest level
in the period
considered.

2000

2001

2002

2003

Imports

73,5 %

71,9 %

72,0 %

73,9 %

(34)

(35)

(36)

(37)

In the year 2003, total Community production of the
product concerned was 190 903 tonnes, of which the
producers which co-operated fully in the provisional
stage of the investigation accounted for 85 231 tonnes,
equivalent to 45 % of the total Community production.
total
They therefore represent a major proportion of
Community production within the meaning of Article
5(3)(c) of Regulation (EC) No 3285/94 and Article
15(1) of Regulation (EC) No 519/94. They
are
accordingly considered as the Community producers.

7. UNFORESEEN DEVELOPMENTS

Towards the end of 2002, Norwegian forecasts of their
overall
around
salmon production in 2003 were
446 000 tonnes. By February 2003, Kontali Analyse
(an industry information provider) was
forecasting
harvesting of 475 000 tonnes. This was 30 000 tonnes
higher than Norwegian production in 2002, but it was
expected that most of this increase would be directed to
emerging markets such as Russia and Poland and to
markets in the Far East such as Japan, Hong Kong,
Taiwan and China. Growth in the Far East had been
negative since 2000, but, Norway expected to reverse
this decline in 2003 by opening up the Chinese market.

Infact,
actual Norwegian production in 2003 was
509 000 (around 63 000 tonnes higher than had been
forecast by the Norwegian Government), and harvesting
than Kontali’s harvesting forecast.
was 6 % higher
Production was also 64 000 tonnes (or 14 %) higher
than Norwegian production in 2002. At the same time,
far from reversing the decline in sales in the Far East, the
rate of decline actually accelerated to – 6,0 %. In addition,
growth in emerging markets also declined — from 47 %
to 32 % in the case of Russia, and from 50 % to 30 % in
the case of European countries outwith the Community.
Indeed, overall global consumption grew by only 6 %
compared to 9 % in 2002 and 14 % in 2001. This, as
it
forecast of production,
combined with the development of world consumption,
was unforeseen.

turned out,

erroneous

Indeed,

In consequence, Norway experienced a serious problem
of over-production, a problem which it appeared to
to
in August 2003,
recognise.
certain
remove
Norwegian
30 000
tonnes of farmed salmon. However, this idea was later
abandoned and the market continued to be over-
supplied.

from the market,
freezing

excess product
producers

in an effort

considered

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(38)

simply

ceased to observe

in December 2002 the Commission had
In addition,
announced its proposal to terminate anti-dumping and
anti-subsidy measures against Norway. These were subse-
quently terminated in May 2003. The measures had in
large part taken the form of minimum import prices
(‘MIPs’), which in effect guaranteed a minimum price
for exporting producers. When the proposed withdrawal
of
the measures was announced, many Norwegian
exporting producers either voluntarily gave up their
them.
undertakings or
Norwegian salmon producers as a whole are heavily
indebted to the Norwegian banks. As prices slid, and in
the absence of MIPs, the banks lending to Norwegian
producers began to take steps to reduce their exposure
by demanding repayment. This created a vicious circle
which led to an increase in harvesting, further pressure
on prices and increased pressure to export. Although
some temporary and small adjustment of import prices
was to be expected as a result of the termination of the
measures against Norway, the extent of the fall in prices
(exacerbated by the problem of over-production) and the
vicious circle which that created because of the operation
of the banking system described above, were unforeseen.

farmed

that year. The principal

(39) During 2003, the value of the Norwegian kroner fell by
13 % relative to the euro, by 12 % relative to the Danish
krone and by 14 % relative to the Swedish krone.
Although currency movements are to be expected,
these were relatively large and sustained fluctuations
and outwith the normal range of currency fluctuations.
Although the euro also strengthened by comparison to
the British pound, the British pound fell by only 6 %
making
in the United
salmon produced
Kingdom more expensive in the euro-zone relative to
Norwegian imports than it had been at the beginning
importers of Norwegian
of
farmed salmon in the Community
are Denmark,
Sweden, Germany and Poland. However, much of these
imports are directly transported within the Community
to euro-zone countries such as France and Spain.
In
addition, over half of the farmed salmon imported to
Denmark, and almost all of that imported to Poland
is re-sold in the euro-
and other new Member States,
zone after processing.
in the
value of the Norwegian kroner relative to the euro had
an effect not only on Norwegian imports directly to the
euro-zone, but also on imports to those countries such
as Denmark and Poland which process farmed salmon to
re-sell
in the euro-zone. The effect of these currency
movements was to make the European Community
to Norwegian
market as a whole more attractive
exporting producers,
insulating them
to some extent
from the effect of a decrease in their prices in euro
and krone, and helping them to maintain their export
revenues in their domestic currency. Nevertheless, unit
prices fell even in Norwegian kroner. At the same time,
imported salmon
these
cheaper
and made
importing more attractive to importers and users such
as the processing industry. In consequence, much of the
overproduction in Norway was exported to the European
Community.

currency movements made

In consequence, the fall

European Community

in the

(40) One party argued that overproduction abroad does not
necessarily lead to increased imports to the Community.
Whilst this is true in abstract terms, the investigation
shows that in this specific case the overproduction did
lead to an increase in imports to the Community.

(41)

(42)

(43)

(44)

It was also argued that the removal of trade measures
and exchange rate fluctuations are both foreseeable.
However, the profound effect of the removal of trade
measures combined with relatively large and sustained
fluctuations in exchange rates was not foreseeable.

is concluded that

Therefore it
the unforeseen devel-
opment which caused the increase in imports was
significant over-production in Norway (despite lower
forecasts), exacerbated by the failure of the Norwegian
industry to achieve forecast growth in exports
to
markets outwith the Community, the unexpected extent
of
trade defence
the
measures against Norway and the operation of
Norwegian banking system as described above, together
with the rise in the value of the euro which made the
Community market an unusually attractive destination
for Norwegian exports.

the termination of

the effects of

8. SERIOUS INJURY

8.1. Introduction

In order to make a determination of serious injury to the
Community producers of the like product, an evaluation
of all relevant factors of an objective and quantifiable
nature having a bearing on their situation has been
undertaken. In particular, for the product concerned, an
evaluation has been carried out of the development of
global Community data for consumption, production
capacity, production, capacity utilisation, employment,
productivity, overall
share. These
global data are based on statistical information gathered
by the United Kingdom and Ireland through compre-
hensive industry surveys. As concerns company specific
data, these are based upon data provided by the co-
operating Community producers on cash flow, return
on capital employed, stocks, price, undercutting and
profitability for the years 2000 to 2003.

sales and market

It should be noted at the outset that in the Community
salmon farming industry, as elsewhere, there is a long
and relatively inflexible production cycle leading to
harvesting and that, once harvested, the farmed salmon
must be sold immediately since they can only be stored
for a few days unless frozen. Freezing is expensive, and
in any event, there is limited freezing capacity in the
Community.
the level of production
must be planned at
two years in advance and,
once planned, cannot be altered except at the margins.
Therefore, oversupply has a delayed effect on production,
but an immediate and severe effect on prices.

In consequence,

least

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8.2. Analysis of

the situation of

the Community

8.2.3. Production of the Community producers

Producers

8.2.1. Consumption

2000

2001

2002

2003

Consumption (t)

507 705

527 970

550 943

618 038

(51)

year on year
increase

4,0 %

4,4 %

12,2 %

2000

2001

2002

2003

Production (t)

146 664

161 854

168 374

190 903

Production (taken as fish harvested) grew by 30 % from
146 664 tonnes in 2000 to 190 903 tonnes in 2003,
following a single year increase of 13,7 %.

(45)

(46)

(47)

(48)

of

the

product

concerned

Consumption
the
Community was established on the basis of the total
production by all producers in the Community and
concerned into the
total
Community as
less European
Community exports.

reported by Eurostat,

the product

imports of

in

(52)

It should be noted that due to the long production cycle,
production is planned at least two years in advance and
commenced,
production cycle
that,
production levels cannot be adjusted except at
the
margins.

once

the

is

2000

Between
the
2003,
Community increased by 21,7 % from 507 705 tonnes
to 618 038 tonnes.

consumption

and

in

It should be noted that salmon has a relatively high level
of price elasticity and the markedly higher increase in
consumption in 2003 can therefore be at least partially
explained by the fall in prices at wholesale level.

8.2.4. Employment

Employment (end
of period)

2000

2001

2002

2003

1 269

1 162

1 195

1 193

(53)

Employment in relation to the product concerned fell by
6 % from 1 269 in 2000 to 1 193 in 2003, although it
followed an uneven trend with a partial recovery in
2002.

8.2.2. Production capacity and capacity utilisation of

the

Community producers

2000

2001

2002

2003

8.2.5. Productivity

Capacity (t)

340 029

340 294

339 359

347 671

Capacity
Utilisation

43 %

48 %

50 %

55 %

Productivity
(tonnes/
employee)

2000

115

2001

139

2002

141

2003

160

Farmed salmon production in the European Community
is effectively limited by government licences specifying
the maximum amount of live fish which may be held
in the water at any place at any point in time. Capacity
figures given are based on the total quantity licensed
the
rather than the physical
cages operated by the Community producers. The cost
of applying for and maintaining licences is relatively low
and therefore the cost of maintaining excess capacity is
also low.

fish-holding capacity of

(49) Having remained stable between 2000 and 2002, the
production

investigation
that
capacity increased by 2,2 % between 2002 and 2003.

theoretical

showed

(50)

Capacity utilisation (i.e. the quantity of fish in the water
compared the quantity licensed) increased from 43 % in
2000 to 48 % in 2001 and then increased further in
2003 when it reached 55 %. This reflects the fact that
production increased more quickly between 2000 and
2003 than licensed capacity which increased by only
2,2 %.

(54)

the
Productivity has consistently increased throughout
period under consideration from 115 tonnes in 2000
to 160 tonnes in 2003. This reflects the increasing use
of automated feed systems and other
labour saving
devices, and the strong pressure to reduce costs in the
face of mounting financial losses.

8.2.6. Sales volume

2000

2001

2002

2003

134 916

148 206

154 171

162 090

Sales in the
Community (t)

(55)

the Community producers’
Between 2000 and 2002,
sales of
increased by 14,3 % from
the like product
134 916 to 154 171 tonnes. This increase occurred
against a background of an increase in consumption
the same period of 8,5 %. Between 2002 and
over
the Community producers’ sales increased by
2003,
5,1 % from 154 171 to 162 090 tonnes, notwithstanding
an increase in consumption between 2002 and 2003 of
10,3 %.

5.2.2005

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Official Journal of the European Union

L 33/15

8.2.7. Market share

2000

2001

2002

2003

Market share

26,5 %

28,1 %

28,0 %

26,1 %

average import prices but then followed a downward
trend. The latest information indicates that prices are
again following a downward trend and are very low.

(56)

The Community producers’ market share increased from
26,5 % in 2000 to 28,1 % in 2001 and remained at
about this level in 2002, but then fell by 1,9 percentage
points (or 6,7 %) to 26,1 % in 2003, its lowest level in
the period considered. This reflects the fact that imports
increased not only in absolute terms, but also relative to
consumption, in 2003.

8.2.8. Cash flow

Financial year

2000

Cash flow (index)

100

2001

– 221

2002

– 384

2003

– 221

(57)

Cash flow could only be examined at the level of the co-
operating
companies which produced the product
concerned rather than in relation to only the product
concerned itself. This indicator was therefore seen as
less meaningful than the other indicators shown. Never-
theless, it can be seen that there was strongly negative
cashflow in 2001, 2002 and 2003.

8.2.9. Return on capital employed (ROCE)

Financial year

ROCE

2000

34

2001

– 1

2002

2

2003

– 20

(63)

(58)

ROCE could also only be examined on the level of the
co-operating companies which produced the product
concerned rather than in relation to only the product
concerned itself. This indicator was therefore also seen
as less meaningful than the other indicators. Nevertheless,
it can be seen that ROCE fell from 34 % in 2000 to close
to zero in 2001 and 2002 before falling to – 20 % in
2003.

(61) One party argued that (by reference to average annual
exchange rates) price falls were less significant in pounds
sterling. Nevertheless, it is the consistent practice of the
Commission in trade defence cases to use the euro as the
unit of currency.

8.2.11. Costs

Average cost of
production per
tonne (EUR/kilo)

2000

3,1

2001

3,2

2002

3,0

2003

3,1

(62)

In addition to price development, the development of
costs has also been considered. Costs have fluctuated
between EUR 3,0 and EUR 3,2/kg over
the period
2000 to 2003.

8.2.12. Profitability

Net profit/loss on
Community sales

2000

7,3 %

2001

2002

2003

– 3,3 %

– 2,5 %

– 17,1 %

The profitability of the Community producers’ sales in
the Community fell from 7,3 % in 2000 to – 3,3 % in
2001. Losses became less pronounced in 2002 (– 2,5 %)
but then increased to – 17,1 % in 2003.
In 2003, as
imports increased to their highest level and the average
price of imports fell to its lowest level (EUR 2,54/kg), the
average price of the Community product also fell to its
lowest level (EUR 2,79/kg). The Community producers’
fall in profitability between 2000 and 2003 occurred at
the same time as the price per kilo of the Community
producers’ product fell from EUR 3,50 to EUR 2,79.

8.2.10. Price of the like product

8.2.13. Stocks

2000

3,50

2001

3,23

2002

3,02

2003

2,79

2000

2001

2002

2003

Closing stock (t)

36 332

39 048

53 178

43 024

Unit prices of
Community sales
(EUR 1 000/
tonne) (*)

(*) Prices adjusted to ex Glasgow.

(59)

the like product

The average price of
fell by 20,3 %
between 2000 and 2003, with a steady decline in
prices over
lowest
point (EUR 2,79/kg) in 2003.

that period. Prices

reached their

(60)

In first semester 2004, the information available indicates
that the average unit price of the Community producers’
sales increased slightly, in line with the slight increase in

(64)

(65)

Stocks in this context refer to live fish in the water. The
Community producers, as all others, have negligible
stocks of harvested fish as they have to be sold imme-
diately. Therefore, a fall in closing stock levels indicates a
decrease in the quantity of live fish being on-grown for
harvesting in the future. Therefore,
in this case, falling
stock levels are an indicator of growing injury.

Stock levels increased from 36 332 tonnes in 2000 up to
53 178 tonnes in 2002 and then declined to 43 024
tonnes
in stocks
represents
between 2002 and 2003 of 19,1 %.

in 2003. This

fall

a

L 33/16

EN

Official Journal of the European Union

5.2.2005

8.2.14. Conclusion

(72)

(66)

The investigation shows that between 2000 and 2003,
and in particular as between 2002 and 2003, imports of
the product concerned have taken place in increased
quantities and high volumes onto the Community
market.

It has been argued that injury has not been suffered by
larger producers. However,
the
Community producers, by reference
to which the
existence of serious injury is established, include several
large producers.

recalled that

is

it

(67) As

theoretical

the Community producers,
to the situation of
between 2000 and 2002,
production
capacity remained more or less stable, whilst production
increased by 14,8 %. In consequence, capacity utilisation
increased from 43 % to 50 % in this period. Stocks of live
fish in the water also increased. There was some loss of
employment, whereas productivity increased mostly due
to greater use of automation.

(68)

Sales volumes increased by 14,3 % between 2000 and
2002 (compared to 8,5 % growth in consumption), and
the Community producers’ market share increased from
26,5 % to 28,0 %.

(69) However, even in this period prices fell by 13,7 %
between 2000 and 2002, and despite a small decrease
in costs in 2002 (partly due to higher capacity utilisation
and better productivity), this appears to have led to a fall
in profitability from 7,3 % in 2000 to losses of – 3,3 %
and – 2,5 % in 2001 and 2002. ROCE and cashflow also
developed negatively in this period.

(70)

the

increase

Between 2002 and 2003, the position of the Community
producers worsened considerably. Although production
capacity and production increased,
in
production capacity was small (2,2 %) compared to the
increase in consumption in that year. Taking account of
the long production cycle, production levels are set at
least two years in advance and the increase in production
was in line with previously developed production plans.
Increased production of itself should not therefore be
seen as indicating that the Community producers were
in a healthy situation in 2003. Increased production led
to higher capacity utilisation and improved productivity.

falling prices,

(71) All other indicators developed negatively. Stocks of fish
in the water fell by 19,1 %. Despite 10,3 % growth in
consumption, the Community producers’ sales increased
by only 5,1 % and they lost market share which fell by
this loss of market share occurred
6,7 %. Moreover,
against a background of
in which the
Community producers were forced to cut prices in
order
their produce. Prices fell by a further
7,6 % compared to 2002 (and were 20,3 % lower than
in 2000), whilst costs increased to their average level for
the four year period. This led to a sharp drop in profit-
ability and the Community producers incurred losses of
17,1 %. These losses were reflected in an overall ROCE of
-20 %. Whilst cashflow appeared to improve, this actually
reflected reduction in stocks of fish in the water and an
inability to re-invest.

to sell

(73)

Taking account of all of these factors the conclusion
reached is that the Community producers have suffered
serious injury in terms of a significant overall impairment
of the situation in their position.

9. CAUSATION

(74)

to examine the existence of a causal

In order
link
between the increased imports and the serious injury,
and ensure that injury caused by other factors is not
attributed to increased imports, the injurious effects of
factors considered to be causing injury have been distin-
guished from each other, the injurious effects have been
attributed to the factors which are causing them, and,
factors
after having attributed injury to all
present,
increased
it has been determined whether
imports are a ‘genuine and substantial’ cause of serious
injury.

causal

9.1. Analysis of causation factors

9.1.1. Effect of increased imports

(75) As shown above, between 2000 and 2003, and in
particular as between 2002 and 2003,
imports of the
product concerned have taken place in increased quan-
tities and high volumes onto the Community market.

(76)

(77)

Farmed salmon is essentially a commodity product, and
the product concerned and the like product compete
mainly on price. Whilst one party argued that imports
from Chile are the price-setter,
it is generally accepted
that imports, particularly from Norway, are the market
leader and price-setter. In consequence, even low levels of
undercutting
the
Community producers.

depression

result

price

for

in

imports,

throughout

the Community. Had

In the current case, the most important injurious effect of
increased imports was the large financial
losses to the
Community producers. Due to the market and price
increased imports drove down
leadership of
prices
imports
increased to a lesser degree, this price pressure would
also have been lower. Had demand in the Community
market been such as to sustain such an increase in
imports at substantially higher prices, albeit such an
increase would have resulted in lower sales and market
share for the Community producers,
it is possible that
the Community producers would not have suffered
serious injury.

5.2.2005

EN

Official Journal of the European Union

L 33/17

(78)

(79)

Between 2000 and 2002, the price of imports fell by
19 % and was closely followed by the Community
producers’ prices. Whilst
share of
the
the market
in
Community
the Community
reflected production
increased in this period,
decisions taken in earlier years and in both 2001 and
2002 the Community producers’ sales were made at a
loss.

producers’

sales

this

from 28 % to 26,1 %. Over

imports grew by 15 %. The
Between 2002 and 2003,
market share of
imports grew from 72 % to 73,9 %,
whilst the market share of the Community producers
same period
fell
imports grew from 236 % to 239 % of Community
to have increased
imports appear
production. Thus,
production
Community
relative
and
consumption at
the Community
expense of
producers.

both

the

the

to

(80) However, the most important aspect of the increase in
imports was its effect on the prices and profitability of
the Community producers. As noted above, it is generally
accepted that imports (particularly from Norway) are the
price leader
farmed
in the Community market
salmon. The existence of undercutting has therefore
indeed the low
been examined to establish whether
priced imports have
the prices
practised by the Community producers.

tended to depress

for

(81)

sales

to similar

information was

In order to reach a determination as to the level of
examined for
undercutting, price
the same level of
comparable time periods, at
trade
and for
customers. Based on a
comparison of average ex-Glasgow prices charged by
the Community producers and by exporting producers
to the Community importers (CIF European Community
border including customs duty), domestic prices were
undercut
in the three most recent years by between
3,1 % and 7,1 %. This appears to have resulted in price
depression for the Community producers because, due to
their large market share, prices are set by imports. In
particular, it can be seen that the increase in imports at
ever lower prices until Q3 2003 forced the Community
producers to continually reduce their prices until Q3
2003 leading to the losses sustained by them in that
year.

(82) A direct

import prices

and
the
comparison of
Community producers’ prices confirms
this analysis.
Import prices fell by 28,5 % between 2000 and 2003,
from EUR 3,62 to EUR 2,59/kg including duty. Over the
same period, the average price of the like product fell by
20 % from EUR 3,50 to EUR 2,79/kg, with a steady
decline in prices over that period.

(83)

Between 2002 and 2003,
the average unit price of
imports fell from EUR 2,93 to EUR 2,59/kg including
duty. As imports increased to their highest level and the
average price of imports fell to its lowest level
(EUR
import prices led Community
2,59/kg including duty),

producers’ prices in a downward trend and the average
price of the Community product fell to its lowest level
(EUR 2,79/kg). The average unit price of the Community
product
from EUR 3,02 to
(adjusted ex-Glasgow)
EUR 2,79/kg, representing a fall of 8 %.

fell

2000

3,50

2001

3,23

2002

3,02

2003

2,79

3,62

3,05

2,93

2,59

Unit prices of
Community sales
(EUR 1 000/
tonne) (*)

Unit prices of
imports incl.
customs duty
(EUR 1 000/
tonne) (**)

(*)
(**)

Prices adjusted to ex Glasgow.
Import prices are CIF including import duty of 2 %.

The fall in the Community producers’ prices appears to
in their
have been the main cause of a significant fall
profitability.
In 2000, when their costs per kilo were
EUR 3,1 and their sales price (adjusted ex Glasgow)
the Community producers made a
was EUR 3,50,
profit of 7,3 %.
In 2001 and 2002, although their
capacity utilisation, production, productivity, stocks of
live fish, sales and market share all
they
incurred financial
reduced overall ROCE and
negative overall cashflow as their sales prices (adjusted
ex Glasgow) fell to EUR 3,23 and EUR 3,02 respectively
and costs first slightly increased and then fell to EUR 3,2
in 2001 and EUR 3,0 in 2002, respectively. Employment
also fell.

increased,

losses,

their

sales volume

their 2000 level of EUR 3,1,

In 2003, as prices (adjusted ex Glasgow) fell to EUR 2,79
under pressure from low priced imports, and with costs
at
the Community
producers incurred a loss of 17,1 %. This was reflected
in the negative overall ROCE and cashflow. At the same
time
increased by only 5,1 %
compared to an increase in consumption of 10,3 % and
their market share fell by 1,9 percentage points, as the
volume and market share of imports increased. Albeit
capacity, capacity utilisation and production, productivity
increased and employment remained stable, the effect of
the increase in low priced imports on capacity utilisation
is delayed. That
and production and employment
production can be expected to decrease as a result of
the increase in imports is shown by the decrease in
stocks of live fish in 2003.

(84)

(85)

(86)

For the foregoing reasons, it is concluded that there is a
correlation between the increase in imports and the
serious injury suffered by the Community producers,
and that the increase in low priced imports has had
injurious effects on the Community producers, parti-
cularly in terms of downward pressure on prices on
the Community market
resulting in large financial
losses to the Community producers.

L 33/18

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Official Journal of the European Union

5.2.2005

9.1.2. Effect of
Kingdom

changes

in consumption in the United

(87) One party argued that there had been an alleged fall in
consumption in the United Kingdom in 2003 and that
this had caused injury to the Community producers.
cannot be
However,
the United Kingdom market
isolated from the overall Community market
and
European Community consumption increased by 21,7 %
between 2000 and 2003, and by 12,2 % between 2002
and 2003. Therefore,
the
Community producers’ substantial losses in 2003 is the
in consumption.
low prices rather than an alleged fall

the primary reason for

9.1.3. Effect of changes in export performance

2000

2001

2002

2003

11 748

13 648

14 203

28 813

Exports
(in tonnes)

(88)

the Community producers sought

The effect of variations in the level of exports has also
been examined. Exports increased throughout the period
considered, and indeed doubled between 2002 and 2003
as, in light of the disastrous situation on the Community
to increase
market,
their exports. It is therefore concluded, despite a claim
by one party to the contrary, that the changes in the level
of exports were not a cause of the serious injury suffered
by the Community producers. In any event, data relating
to profitability is based on data relating to Community
sales only.

that

producers,

parties in 2002 and 2003 clearly shows that imports
were consistently sold at lower prices than those of the
the Community
and
Community
producers’ prices
in a
followed those of
downward trend. The effect of competition amongst
the Community producers balances itself amongst them
— losses incurred by one are offset by gains made by
another ceteris paribus. Therefore,
is concluded that
competition amongst
the Community producers was
not a cause of the serious injury observed.

imports

it

9.1.6. Effect of increased mortality on production costs

(91) One party argued that higher than normal fish mortality
rates in Ireland and disease outbreaks in the United
Kingdom and Ireland in 2002 and 2003 could have
increased production costs and interrupted the normal
production cycle for some producers. However,
these
phenomena were limited to a small number of farms.
Further, as
the Community
producers’ production costs fell in 2002 and were close
is
to their four year average in 2003. Therefore,
concluded that higher than normal fish mortality rates
were not the cause of material injurious effects.

the table below shows,

it

2000

3,1

2001

3,2

2002

3,0

2003

3,1

Average cost of
production (EUR
1 000/tonne)

9.1.7. Effect of higher production costs generally

9.1.4. Effect of any excess capacity

(92)

(89) Whether injurious effects may have resulted from excess
capacity amongst
the Community producers has also
been examined. Theoretical capacity increased during
the period of the investigation by 2,2 % between 2000
and 2003 — by considerably less than production and
consumption. In addition, as previously noted, the theo-
retical capacity is the total quantity of live fish for which
government licences are held. The cost of applying for
and maintaining licences is low. Indeed, the main cost
drivers are the cost of smolts (baby fish), feed and labour.
Therefore, it is concluded that the increase in theoretical
to the
capacity
Community producers.

did not

injurious

effects

cause

9.1.5. Effect of competition amongst the Community producers

(90)

Some exporters argued that the reason behind the fall in
the price of salmon on the Community market was an
oversupply by the Community producers. However,
imports
the
in
Community
the Community
increased by only 5,1 %. Further,
imports are the price
leader in this market, not the Community producers.
Indeed, an examination of the pricing behaviour of all

increased by 15 % in 2003 whereas
sales

producers’

It was argued that the Norwegian industry has lower
production costs than the Community producers and
that this, and a failure by the Community producers to
reduce production costs, is a reason for increased imports
and serious injury. The information available suggests
that whilst Norway enjoys advantages in relation to
certain costs, the Community producers enjoy advantages
in relation to others. Overall, it is noted that whilst the
Community producers are incurring significant losses in
the current market, so too are Norwegian producers. As
noted in section 8.2.12, the Community producers made
a loss of – 17,1 % in 2003. Norwegian Government data
indicate that in 2003 for a sample of 148 salmon and
rainbow trout farms losses were – 12,1 %. In addition, the
Norwegian producers were operating under a heavy
burden of debt, representing a significant proportion of
their total costs. Their total debt (excluding equity and
provisions) was 6,3 billion NOK compared to a total
turnover of 5,6 billion NOK (1)
(equalling around
EUR 750 m and EUR 670 m respectively). This
situation has in some cases led to the Norwegian banks
effectively taking ownership of Norwegian producers.
Therefore, the conclusion is that, whilst there may be
the
small
Community producers’ average cost of production and
that of exporting producers was not a material cause
of the serious injury suffered.

differences,

difference

between

any

(1) Norwegian Directorate of Fisheries Statistical Survey 2003.

5.2.2005

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Official Journal of the European Union

L 33/19

9.1.8. Higher transport costs in Scotland

9.3. Conclusion

(93) One party argued that there is a less developed infra-
structure in remote areas of Scotland and that
this
increases costs and may cause injury to Community
it is noted that fish farming
producers. In this regard,
in Norway, which is the Community market leader,
is
often undertaken in remote locations with relatively poor
transport infrastructure.

(98)

Therefore, having determined that no material injurious
it
effects resulted from the other known factors,
is
concluded that there is a genuine and substantial
link
between increased low priced imports and serious
injury to the Community producers.

10. THE SAFEGUARD MEASURES

(94)

(95)

(96)

(97)

Transport costs are not a large part of the overall cost of
production of farmed salmon and vary according to the
origin of goods and the destination to which they are to
be delivered. Overall, there is not considered to be a
significant difference in the costs of
to the
Community market as between Norway,
the United
Kingdom and Ireland. In addition, exporting producers
(which by definition are located outside the European
Community)
to have higher
transport costs when selling to the Community market.
Therefore, it is not considered that higher transport costs
in Scotland have contributed to the injury to the
Community producers.

transport

generally

likely

are

Further and in any event, no evidence was produced to
the effect that transport costs in Scotland have increased
in recent years, and therefore, higher transport costs
could not explain the recent increase in financial losses
suffered by the Community producers.

9.1.9. Other factors

to

the

import

scientific

contributed

It was argued that stricter environmental and sanitary
legislation in the Community,
restrictions in
reports on salmon and
third countries,
negative public relations resulting from press coverage
had
the
Community producers. No evidence was however
produced in support of these arguments, nor were the
these
In these
arguments developed.
factors cannot be taken as relevant causation factors
for the serious injury to the Community producers. No
other causation factors of possible relevance were iden-
tified during the definitive stage of the investigation.

circumstances,

suffered

injury

by

9.2. Attribution of injurious effects

sales

and market

their
in 2003. However, most

The increase in imports had only a limited negative effect
on the quantities sold by the Community producers,
share
although
dropped
somewhat
importantly it
appears that the considerable increase in imports had a
devastating effect on the profitability of the Community
producers, given the accompanying price drop. Given
that
the market)
(with around 70-75 % of
enjoy the position of price-leader, the downward spiral
in import prices had a considerable depressing effect on
Community producers’ prices. This resulted in consid-
erable losses to the Community producers. No other
factors which could have contributed to the injury
apart from the increase in low priced imports were iden-
tified.

imports

(99) Analysis of the findings of the investigation confirms that
injury and the need for definitive
to remedy the serious
and

there is
in order
safeguard measures
injury suffered by the Community producers
prevent further injury to the Community producers.

serious

10.1. Form and

level

of

definitive

safeguard

measures

such as

the measures

(100) Community production of farmed salmon is insufficient
to meet demand and it is therefore necessary to ensure
that
to deny
taken are not
exporting producers access to the Community market.
As
the main cause of damage to the Community
producers is the large volume imports leading to low
price and causing price depression and suppression, the
measures taken should be designed to remedy the serious
injury and facilitate adjustment. To achieve these aims,
the measures should lead to a temporary stabilisation of
prices that does not unnecessarily limit supply and
provides for a period during which the Community
producers may adjust to future conditions of increased
competition from cheap imported products.

continuing

salmon were

should facilitate

(101) The provisional safeguard measures took the form of
tariff quotas alone. Even in the period during which
imports of
the provisional measures were in force,
farmed
the
enter
to
Community at prices which were substantially below
the cost of production of the Community producers.
Measures should therefore be taken which will have the
effect of increasing prices to a level at which there is at
least full cost recovery by the Community producers.
adjustment by ensuring that
This
during
the
the period of
to sustain
Community producers do not
losses the effect of which would be to prevent them
raising finance so as to take the measures necessary for
adjustment and restructuring.
In order to achieve an
upward impact on prices,
it was considered whether
tariff quotas should be installed, albeit with very small
safeguard tariff-free volumes. However, while this could
arguably have been expected to impact on prices, such an
approach was considered inappropriate since the growing
farmed salmon should not be unduly
market
restricted. Therefore, a price element should be estab-
lished for
farmed salmon to the
Community. The Community producers’ average cost of
production has been found to be EUR 3,10 per kilo in
the Community producers’ product
2003. However,

the present measures
continue

imports of

for

all

L 33/20

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Official Journal of the European Union

5.2.2005

involve undertakings but

to sell at around break-even.

normally commands a price premium over the imported
product of up to around 10 %. It is therefore concluded
that
the import price level should be established at
EUR 2 850 per tonne for fresh salmon. This should
permit Community producers, despite the low price
element,
It was argued
that minimum price undertakings in previous cases had
not been respected. Whilst that may be the case, these
measures do not
the estab-
lishment of an import price level below which duty is
payable, and circumvention of which is customs fraud. In
addition,
some parties expressed a preference for a
specific or ad valorem duty instead of the establishment
of a minimum price for imports. However, the impo-
sition of such a duty would take money out of the
market and it
the estab-
lishment of a minimum price for imports represents a
better solution in the medium term. Nevertheless,
in
order to facilitate the adaptation, it is considered appro-
priate that during the phasing-in as described below, a
specific duty should be applied.

is therefore considered that

(105)

(106)

(102)

It has been argued that as frozen salmon commands a
lower price than fresh salmon because of a slight
difference in the structure of the cost of production,
applying the same import price level would effectively
exclude frozen salmon from the Community market.
On that basis,
it is argued that a lower import price
level should be established for frozen salmon to take
account of these different cost elements and that any
price element should be lower for frozen than for fresh
salmon. As there appears to be a price difference of
around 4 % on the market,
is considered that a
should be established for
lower
import price level
frozen salmon which reflects
that difference. The
for frozen farmed salmon should
import price level
therefore be EUR 2 736.

it

(103) One party argued that having two price levels would lead
to complexity for authorities and increase the likelihood
of fraud at the point of entry, but these claims are not
practically substantiated given the existence of penalties
for customs fraud. On the other hand, it was argued that
a different price regime should apply to farmed salmon
depending on its
for
processing or eventual retail sale). This would be much
more difficult to control and so, for practical reasons, it
was found not to be feasible in the circumstances.

intended end use

(whether

until 15 April 2005, during which period a minimum
import price of EUR 2 700 per tonne for fresh salmon
and EUR 2 592 for frozen salmon should apply.

It is considered that the price element, during the defi-
nitive stage, should take the form of a variable duty. If
imports are undertaken at a CIF Community border price
equal to or above the import price established, no duty
would be payable. If imports are undertaken at a lower
price, the difference between the actual price and the
import price established would become payable. This
minimum price element shall be applicable at all times,
both within the tariff quota as set out below, and when
the threshold of the tariff quota is reached.

importers respect

to ensure that
the price
In order
element,
it is considered that within a specified time
limit, importers should be required to provide satisfactory
evidence to the national customs authorities of the actual
import price per tonne paid for imports of
farmed
salmon.
importers respect
In order to ensure that all
the condition to provide satisfactory evidence and do
so within the time limit,
importers should be required
to provide adequate security to the national customs
authorities upon the importation of
farmed salmon.
the proposed price element, both
Given the level of
phase-in and definitive,
for fresh and frozen farmed
salmon, a security of EUR 290 per tonne (WFE) of
farmed salmon imported (Group 1 — EUR 320 per
tonne, Group 2 — EUR 450 per tonne) is considered
to be appropriate. It was argued that this level of security
is
importers.
However, it is considered that a lower level of security
would not achieve its purpose given the difference
between current market prices and the import price
level to be established. Given the nature of the infor-
mation to be provided and considerations of adminis-
trative convenience, it is considered that the time limit
within which to provide satisfactory evidence should be a
period of 1 year from the date of acceptance of the
relevant customs declaration. The security should be
released at the moment that the importer provides satis-
factory evidence provided that this is done within the
specified time limit. If an importer fails to provide satis-
factory evidence within the time limit, the security should
be definitively collected as import duties.

and burdensome

too expensive

for

(104) As market prices are currently lower and in order to
prevent market disturbances, especially for the processing
industry, the price element should be phased-in over a
period of time. This will allow the market to gradually
adapt
In this
to the import price to be established.
it was argued both that a long period was
respect,
necessary to allow processors to adapt
to the price
increase, and that a short period should be set given
the difficult situation of the Community producers. It is
considered that the phase-in period should be from the
date of entry into force of definitive safeguard measures

(107)

In order to ensure that, beyond the traditional level of
imports,
the Community producers can operate at a
level of profitability whilst keeping the
reasonable
Community market open and ensuring the availability
of supply to meet demand, it is in addition considered
appropriate to establish tariff quotas reflecting traditional
imports. Beyond those quotas, an additional
levels of
duty should be payable on imports. Traditional
levels
of imports of farmed salmon which respect the price
element established can then continue without payment
of any additional duty, and unlimited quantities can be
imported albeit upon payment of the additional duty.

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Official Journal of the European Union

L 33/21

(108)

(109)

the

having

interest

substantial

substantial

total quantity of

interest and represent

In order to preserve traditional trade flows and ensure
that the Community market also remains open to minor
players, the tariff quota should be divided amongst those
countries/regions
in
a
supplying the product concerned, and a part should be
reserved to other countries. After consultation with
Norway, Chile and the Faeroes which have such a
substantial
import
shares,
it is considered appropriate to assign a specific
tariff quota to each of these countries. In principle, the
should be divided up based on the
tariff quota
proportions of
the product
supplied by that country during the three year period
2001 to 2003. However, it is noted that imports from
Chile fell substantially (to below 3 % of imports to the
Community)
in the second semester 2003 due to
technical reasons concerning border controls, which is
approximately half of their normal share of imports to
the Community. For this reason imports from Chile in
2003 are not representative and the country specific
quota for Chile should instead be based on average
imports in 2001, 2002 and an adjusted figure for
2003 (based on 2002 plus average import growth rates
in 2003 excluding Chile) so as not to distort traditional
flows of trade. In order to avoid an unnecessary admin-
istrative burden, the tariff quotas should operate on a
first come first served basis.

the first

in the EU-15,

there is evidence that

in normal circumstances Community
It appears that
consumption of
farmed salmon had been growing at
between around 4 % to 5 % annually taking into
account growth levels observed in the new Member
States. However, data for
semester 2004
indicates that market growth in the Community salmon
market is in fact increasing, and that whilst the size of
the market in the new Member States is small relative to
that
the annual
growth rates in the new Member States (which were of
the order of 30 %) have increased as a result of enlar-
gement and are now materially higher (around 50 %). In
order to take account of this growth, the tariff quotas
(based on average imports in 2001 to 2003) should be
increased by 10 %. As the salmon market is seasonal,
with higher imports and sales in the second semester
than the first,
the tariff quotas should be seasonally
adjusted. The quotas have been calculated on a whole
fish equivalent basis (WFE) and conversion ratios to
fillets and non-fillets actually imported are 1:0,65 and
1:0,9 respectively.
the
measures, it becomes apparent that the conversion ratio
for non fillets (1:0,9) ceases to be appropriate taking
salmon
account
imported,
the
measures may be reviewed.

If, during the application of

currently mainly

of
gutted

presentation

head-on,

farmed

the

of

it is considered appropriate,

(111) A minimum price element as outlined above will always
be applicable to enable Community producers to sell at
break-even. As also mentioned above,
the minimum
price element is set below the Community producers’
cost of production, but as they have been able to sell
at a premium of around 10 % in the past, it is expected
that they will continue to be able to do so and thus
recover
their costs of production. Should traditional
trade levels be surpassed, and an additional duty thus
in appli-
become payable,
cation of the Community institution’s traditional ‘under-
selling’ approach, to base this additional duty on the
difference between the level of the non-injurious target
price of the Community producers and the minimum
price element. This difference, which reflects the extent
to which the price of the imported product is lower than
the price which the Community producers could be
expected to achieve in a non-injurious situation, after
between the
adjustment
imported product and the Community product, is thus
considered to be a reasonable basis for fixing the level of
duty. This difference was calculated on the basis of the
weighted average non-injurious price per tonne of the
Community product, based on the cost of production
of the Community product plus a profit on turnover
of 14 %. This is consistent with the level of profit estab-
trade defence cases
lished as necessary in previous
relating to salmon and reflects
the meteorological,
biological and escape risks faced by this industry. This
non-injurious price was compared with the minimum
price element. The difference between these two prices
results in an initial duty payable of EUR 330 euro per
tonne (WFE), which, based on the conversion ratios
is equivalent to EUR 366 per tonne for
shown above,
other than fillets and EUR 508 per tonne for fillets.

differences

for price

as

(112) Provision should be made for review of the measures by
the Commission if circumstances should change. In order
to properly take into account market developments after
the imposition of the present safeguard measures, if any,
it is considered to undertake a monitoring of the market
and the development of prices. If the data or other infor-
mation collected indicates that a definitive import price
level of EUR 2 850 or EUR 2 736, as the case may be,
would be inappropriate, an early review would be
initiated so as to change this definitive import price
level before its entry into force. Regular meetings with
interested parties should take place every six months or
as requested by interested parties on the basis of relevant
substantiated evidence.

(110) The additional duty should be set at a level such as to
provide adequate relief to the Community producers but
at the same time should not constitute an unnecessarily
onerous burden on importers and users. An ad valorem
duty is considered unsuitable as it would act as an
incentive to lower
free of duty, and
import prices
would increase in real terms if a price increase occurs.
Therefore a fixed amount of duty should be set.

(113)

the Community,

In conformity with Community legislation and the inter-
national obligations of
the definitive
safeguard measures should not apply to any product
originating in a developing country as long as its share
of imports of that product into the Community does not
in Regulation (EC)
exceed 3 %.
regard,
In this
No 1447/2004 special account was
the
taken of
particular situation of Chile as a developing country to

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EN

Official Journal of the European Union

5.2.2005

these

imports would be

the effect that imports from Chile were not covered by
the provisional measures since, in the second semester of
2003, imports originating in Chile were below the 3 %
threshold. Under that Regulation it was stated that the
closely
development of
monitored in order to ascertain whether the downward
trend observed would prove to be a lasting phenomenon.
However, following further investigation it is apparent
that imports from Chile have now returned to around
6 % of Community imports and that the reduced level of
imports in the second semester 2003 appears to have
been only a temporary phenomenon. Therefore, and
having regard to the fact that overall imports originating
in Chile during the year 2003 exceeded the mentioned
level of 3 %, the definitive safeguard measures should also
apply to imports from Chile. The developing countries to
which the definitive measures do not apply are specified
in Annex 2.

10.2. Duration

(114) The definitive measures should not last more than four
years including the period of the provisional measures.
The measures should enter into force on 6 February
2005 and should remain in force until 13 August 2008.

10.3. Liberalisation

(115)

thereby ensuring that

In order to induce adjustment, the measures should be
subject to liberalisation on a regular basis following their
imposition,
there is a strong
incentive for the Community producers to progressively
undertake the necessary restructuring and adjustment. It
is considered that liberalisation should commence one
year after the imposition of provisional measures, and
be undertaken annually thereafter.

(116) Liberalisation should be designed to allow the impor-
tation of increasing quantities of farmed salmon which
respect the price element without the payment of addi-
tional duty thereby increasing the competitive pressure to
which the Community producers are subject during the
course of the measures. Similarly, in order that imports
beyond the level of the tariff quota gradually become
subject to a lower duty, the rate of the additional duty
should be gradually reduced. Liberalisation must also take
account of the expectation of market growth. Liberal-
isation should therefore take the form of an increase in
the tariff quota together with a decrease in the level of
the additional duty payable beyond the level of the tariff
quota. On each occasion it is considered that the tariff
quota should be increased by 10 % and the additional
duty decreased by 5 % but this may be reviewed upon
cause shown.

10.4. Restructuring

(117) The purpose of definitive safeguard measures

is
to
provide
limited
the Community producers with a
period of time in which to restructure so as to more
regard,
effectively
reference is made to article 20(2) of Commission Regu-
lation (EC) No 3285/94 which prohibits any possible
extension of measures if there is no evidence that the
Community producers are adjusting.

compete with imports.

In this

(118) The Community producers are already in the process of
restructuring as a result of heavy losses which have
resulted in some operators leaving the industry, as well
as bankruptcies and receiverships, which have forced
others to close. Significant improvements in productivity
and efficiency have also been made in recent years.
However,
to
maximise its competitiveness both now and in the
future,
time in which to
implement an organised restructuring plan.

requires a period of

to develop so as

the industry is

it

if

(119) Key elements of the restructuring strategy developed by
the relevant national authorities in collaboration with the
industry include (1) implementation of site optimisation
plans to relocate or merge fish farm sites to increase the
size of farms over the next two to three years thereby
(2) diversifi-
increasing efficiency and reducing costs;
cation into other species with the emergence of cod
and halibut farming with sites being stocked with white
fish species and increasing shellfish growing (however,
due to their current
financial situation these changes
are being severely hampered through lack of funding);
(3) the development of more sophisticated environmental
carrying capacity tools so as to allow better assessment
of the maximum level of consented fish farm biomass
which can be permitted whilst maintaining a healthy
marine ecosystem, thereby facilitating a move towards
larger single farms and greater economies of scale; (4)
further use of synchronised fallowing of fish farms within
hydrologically linked areas together with co-ordinated sea
lice treatment thereby better protecting farmed fish from
sea lice infestation and disease, and enhancing smolt
(5) establishment
survival rates thereby reducing costs,
of
in
coordination amongst producer organisations
Ireland, the United Kingdom and Norway with a view
to avoiding future problems of severe over-production.

this

co-ordinated

strategy,
fallowing

(120) Some progress has already been made in implementing
in pursuing
in particular,
parts of
synchronised
lice
sea
and
treatment, and substantial further progress is anticipated
during the period of these measures. In the event that
such adjustment fails to progress sufficiently during the
period of these measures, the Commission may consider
such failure to be a change of circumstances within the
meaning of Article 1(6) of this Regulation, requiring the
review of the continued need for the measures.

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Official Journal of the European Union

L 33/23

11. COMMUNITY INTEREST

11.1. Preliminary remarks

(121)

in the Community interest

In addition to unforeseen developments,
increased
imports, serious injury, causation and critical circum-
stances,
it has been examined whether any compelling
reasons exist which could lead to the conclusion that it is
not
to impose definitive
the impact of definitive
measures. For
measures on all parties involved in the proceedings and
the likely consequences of taking or not taking such
measures were considered on the basis of the evidence
taking contact with the Community
available after
farmed salmon in the
producers, other producers of
Community, importers and processors.

this purpose,

11.2. Interest of the Community producers

(122) The Community producers have a combined annual
turnover of over EUR 500 million, and, in addition to
the direct employment of around 1 450 which they
create, are estimated to indirectly support a further
8 000 jobs in the processing and other sectors. They
are part of a major growth industry which has seen
production double between 1995 and 2001. They are
achieving increasing efficiency in the production of a
product for which there is a growing market both in
the Community and globally. They are viable and compe-
titive in normal market conditions, and show increasing
productivity.

imports of

the current

low priced imports

(123) The Community producers’ position is clearly in jeopardy
unless
is
level of
corrected. This is evidenced by continuing reports of
impending bankruptcies. The proposed measures will
apply to all
the product concerned other
than those from developing countries whose exports to
the European Community are no more than 3 % of
imports to the Community. They would therefore apply
to over 95 % of such imports. Although it was argued
that the price element of the measures may be difficult to
enforce having regard to previous experience with price
undertakings in relation to farmed salmon, it is recalled
that the price element is not based on undertakings but
on a variable duty to be collected by national customs
authorities. Therefore,
the
measures would be effective and allow the Community
producers prices to rise to a fair level.

it can be anticipated that

11.3. Interest of the dependent industries

(124) The areas in which salmon farming is undertaken tend to
be remote — mainly on coastal areas of Western and
Northern Scotland and the West coast of Ireland. There
are limited employment opportunities and the economic

generated by

salmon farming makes

contribution to these
that contribution, many of

an
activity
economies.
important
local
Without
business which supply goods
to the
Community producers and their employees would cease
to be viable. It is therefore in the interests of dependent
industries that effective definitive measures are taken.

and services

the small

local

11.4. Interests of producers of smolt and feed

(125) Although one party argued the contrary, it is clearly in
the interests of the major suppliers to the Community
producers (such as smolt and feed producers) to have
strong and predictable demand for their product at a
price which allows them to make a reasonable profit.

(126)

11.5. Interest of users, processors and importers in

the Community

In order to evaluate the impact on importers, processors
and users of taking or not taking measures question-
naires were sent
to the known importers, processors
and users of the product concerned on the Community
market. Importers/processors/users are normally one and
the same and many are in fact related to exporting
producers outside
in
Norway. Responses were received from 6 importers/pro-
cessors/users and from an association of processors. In
addition, a number of processors’ associations made
representations to the Commission and contact was
taken with certain processors and their associations.

the Community, particularly

termination of

anti-dumping measures

(127) Some argued that no measures should be taken because
in farmed
there had been only a short temporary fall
salmon prices in the two to three months following
the
against
Norway in May 2003, and prices had since returned to
normal. Processors stressed that any increase in prices
would increase their cost base, reduce their sales and
profitability and may lead to job losses and even de-
localisation,
fish
processing sector is far higher than in the fish farming
industry and in some cases provides employment in areas
of low employment.

stressing that

employment

in the

(128) However, it is clear that prices have not recovered in the
first semester of 2004. Import prices increased between
Q4 2003 and early Q1 2004 but then fell steadily in the
latter part of Q1 2004 and in Q2 2004, and the
Community producers’ prices followed the same trends.
The Community producers’ prices remain substantially
infor-
below a non-injurious price. Further,
mation indicates
following a
downward trend.

that prices

the latest

still

are

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Official Journal of the European Union

5.2.2005

(129) The main costs incurred by processors are the cost of the
raw material and employment costs, and it is true that an
increase in raw material prices would increase the
processors’ costs. However, according to the information
provided by processors, the cost of their raw material fell
by 10 % between 2002 and 2003, having already fallen
by 18 % between 2000 and 2002. In 2003, it was 26 %
cheaper than in 2000. At the same time, the information
provided by them indicates that their selling prices have
the same in 2002 and 2003. All
remained about
processors which provided information as to the profit-
ability of their salmon processing operations have prof-
itable salmon processing operations and it is considered
that they can absorb a modest cost increase without any
job losses or de-localisation. It is clear that current price
levels of farmed salmon are unsustainable in the medium
to long term. The processing industry will therefore face
an increase in the cost of
in the
medium to long term, in any event.

their raw material

(130) As

fish

in the

to employment,

around 100 000 workers

are
employed
in the
Community although only a small proportion of those
are concerned in processing farmed salmon. No evidence
was found that the possible measures would lead to a
decrease in the level of employment in the Community.

processing

sector

(131) Processors also stressed the need for

traders in the
principal European markets and consumers to continue
to have access to good quality product at low prices.
They expressed particular concern about the possibility
of speculative buying immediately after the introduction
of a tariff quota, and claimed that if the tariff quota is
reached they might have to stop production. Finally, they
stated that if measures were to be taken, they should be
such as to maintain adequacy of supply and help bring
price stability to the market in order that their costs
In this regard, whilst some
could better be predicted.
maintained
form of
measures, others indicated that if measures were to be
imposed they would prefer a tariff quota system, certain
expressing preference for a licensing system.

opposition to any

outright

(132)

It should be noted that the measures consist of a price
element which reflects cost recovery for the Community
producers and tariff quotas based on average imports to
the Community (including the new Member States) in the
period 2001 to 2003 plus 10 %, beyond which an addi-
tional duty applies. Therefore, the processing industry
throughout
the Community should continue to have
access to an adequate supply of raw material. Although
some parties argued that the measures would constitute a
heavy
the Community
burden
processors, this claim was not substantiated and it is
considered that the measures constitute the minimum
administrative burden consistent with efficient appli-
cation.

administrative

for

(133) Therefore,

the disadvantages likely to be suffered by
processors/users and importers, if any, are not considered
such as to outweigh the benefits expected to accrue to
the Community producers as a consequence of the defi-
nitive measures, which are considered the minimum
necessary to remedy the serious injury suffered and
prevent further serious deterioration in the situation of
the Community producers.

11.6. Interest of consumers in the Community

(134) As the product concerned is a consumer product, the
Commission informed various consumer organisations
of
the opening of an investigation. A response was
received from one party to the effect that the beneficial
effects of salmon are widely recognised and that artifi-
cially increasing the price would make good nutrition
choices more difficult for consumers and damage the
economic viability of importers, processors and retailers
of farmed salmon. Another claimed that the measures
may prevent them from importing and continuing to
sell frozen farmed salmon. Concern was also expressed
that any increase in prices would make farmed salmon
less affordable and stifle market growth in those Member
States with a lower than average gross domestic product
per head (GDP).

(135) However, as noted above, it is considered that the current
market price is so low as to be unsustainable in the
medium to long term, and economic operators will
to unlimited quantities of
continue to have access
imports subject
to the price element and above the
level of the tariff quota, additional duty. Further, given
the magnitude of the margins between the whole fish ex-
farm and the retail price of processed salmon products, it
is considered that the measures are unlikely to have a
material effect on retail prices and the impact on
consumers is therefore considered to be minimal. Never-
theless, the Commission will carefully monitor the effect
of the measures on affordability and market growth in
those Member States with a lower than average GDP,

HAS ADOPTED THIS REGULATION:

Article 1

System of tariff quotas and their additional duties

1.
A system of tariff quotas is hereby opened for the period
6 February 2005 to 13 August 2008 in relation to imports into
the Community of farmed (other than wild) salmon, whether or
not filleted, fresh, chilled or frozen, classified within CN codes
ex 0302 12 00, ex 0303 11 00, ex 0303 19 00, ex 0303 22 00,
‘farmed
ex 0304 20 13
ex 0304 10 13
salmon’). The volume of the tariff quotas and the countries to
which they apply are specified in Annex 1. The quotas have
been calculated on a whole fish equivalent basis (WFE) and
conversion ratios
fillets
(Group 2) actually imported are 1:0,9 and 1:0,65 respectively.

to non-fillets

(Group 1)

(hereinafter

and

and

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Official Journal of the European Union

L 33/25

2. Wild salmon shall not be subject, or allocated, to the tariff
quotas. For the purpose of this Regulation, wild salmon shall be
that
the
in respect of which the competent authorities of
Member State where the customs declaration for free circulation
is accepted are satisfied, by means of all appropriate documents
to be provided by interested parties, that it was caught at sea for
Atlantic or Pacific salmon or in rivers for Danube salmon.

From 16 April 2005 until 13 August 2008, the MIP shall
4.
be EUR 2 850 per tonne whole fish equivalent (CIF Community
border excluding customs duty) for fresh farmed salmon and
EUR 2 736 for frozen farmed salmon. The MIP for imports in
Group 1 shall be EUR 3 170 per tonne fresh and EUR 3 040
frozen, and that for imports in Group 2 shall be EUR 4 385 per
tonne fresh and EUR 4 209 frozen.

Subject to Article 4, imports of farmed salmon beyond the
3.
level of the tariff quota shall be subject to the additional duty
specified in Annex 1 for the group to which they belong.

For the purposes of determining the level of additional
4.
duty payable,
farmed salmon falling within CN codes
ex 0302 12 00, ex 0303 11 00, ex 0303 19 00, ex 0303 22 00
shall fall within Group 1 in Annex 1, whilst those falling within
ex 0304 10 13 and ex 0304 20 13 shall fall within Group 2.

5.
The conventional rate of duty provided in Council Regu-
lation (EC) No 2658/87 (1), or any preferential rate of duty, shall
continue to apply to imports of farmed salmon.

If circumstances should change, these measures may be

6.
reviewed by the Commission.

7.
Upon cause shown,
measures may be reviewed.

the rate of

liberalisation of

these

Article 2

Minimum import price

Both within and beyond the tariff quota mentioned in
1.
Article 1 above,
imports of farmed salmon are subject to a
minimum import price (‘MIP’) which may be reviewed from
time to time having regard to relevant
including
supply, demand and cost of production.

factors

5.
In cases where goods have been damaged before entry
into free circulation and, therefore, the price is apportioned as
for the determination of the customs value pursuant to Article
145 of Commission Regulation (EEC) No 2454/93 (2), the MIP
set out in paragraph (3) or (4) as appropriate, shall be reduced
by a percentage which corresponds to the apportioning of the
price actually paid or payable. The duty payable will then be
equal
to the difference between the reduced MIP and the
reduced net, free-at-Community-frontier price.

Article 3

Security to be provided on importation

For the purpose of this regulation,

‘importer’ shall mean
1.
the person lodging the declaration for release for free circu-
lation, or the person on whose behalf
that declaration is
lodged, and ‘satisfactory evidence’ shall be provided by the
production to the customs authority of evidence of payment
import price for the salmon imported, or by
of the actual
results of appropriate controls carried out by customs autho-
rities.

Importers of

2.
farmed salmon shall provide satisfactory
evidence to the customs authorities of the actual import price
per tonne paid for imports of farmed salmon.

Imports of farmed salmon sold at a price which is less
2.
than the MIP shall be subject
to the
difference between the MIP for the respective products listed
in annex 1 and the actual import price of those products (CIF
Community border excluding customs duty).

to a duty equivalent

Pending the provision of satisfactory evidence, the release
3.
of
the goods shall be conditional upon the provision of a
security to the customs authorities of EUR 290 per tonne
(WFE) of farmed salmon imported (Group 1 — EUR 320 per
tonne, Group 2 — EUR 450 per tonne).

From the entry into force of this Regulation until 15 April
3.
the MIP shall be EUR 2 700 per tonne whole fish
2005,
equivalent
(CIF Community border excluding customs duty)
for fresh farmed salmon and EUR 2 592 for frozen farmed
salmon. The MIP for imports in Group 1 shall be EUR 3 000
per tonne fresh and EUR 2 880 frozen, and that for imports in
Group 2 shall be EUR 4 154 per tonne fresh and EUR 3 988
frozen.

(1) OJ L 256, 7.9.1987, p. 1. Regulation as

(EC) No 2344/2003 (OJ

last amended by
L 346,

Commission Regulation
31.12.2003, p. 38).

4.
If, within 1 year of the date of acceptance of the customs
declaration for release for free circulation or within 3 months
following the
the goods,
foreseen date of payment
whichever date is the later, the importer has not supplied satis-
factory evidence as
the
immediately enter in the accounts,
customs authorities shall
as duties to which the goods in question are subject,
the
amount of
the security provided in accordance with the
provisions of paragraph (3) above.

required by paragraph (2) above,

for

(2) OJ L 253, 11.10.1993, p. 40.

L 33/26

EN

Official Journal of the European Union

5.2.2005

If on verification the customs authorities establish that the
5.
price actually paid for the goods is below the MIP as indicated
in Article 2, they shall recover the difference between that price
and the respective MIP in accordance with Article 220(1) of
the
Regulation (EEC) No 2913/92.
wrongful acquisition of
financial advantage, compensatory
interests shall be applied in accordance with the provisions in
force.

to prevent

In order

6.
The security provided shall be released at the moment the
importer provides satisfactory evidence as required in paragraph
(2) above.

Proof of origin shall be accepted only if

the farmed
4.
salmon meet the criteria for determining origin set out in the
provisions in force in the Community.

Article 6

Direct transport

The following shall be considered as transported direct to

1.
the Community from a third country:

(a) products transported without passing through the territory

of any third country;

Article 4

Developing countries

Imports of farmed salmon originating in one of the developing
countries specified in Annex 2 shall not be subject, or allocated,
to the tariff quotas laid down in Article 1 or subject to the
requirements under Articles 2 or 3.

(b) products transported through one or more third countries
other than the country of origin, with or without trans-
shipment or temporary warehousing in those countries,
provided that such passage is justified for geographical
reasons or exclusively on account of transport requirements
and provided that the products:

Article 5

General provisions

— have remained under the supervision of the customs
transit or

the country or countries of

authorities of
warehousing,

1.
The origin of the farmed salmon to which this Regulation
applies shall be determined in accordance with the provisions in
force in the Community.

— have not entered into commerce or been released for

consumption there, and

2.
Subject to paragraph (3), any release into free circulation
in the Community of farmed salmon originating in a developing
country shall be subject to:

(a) presentation of a certificate of origin issued by the
competent national authorities of
that country meeting
the conditions laid down in Article 47 of Regulation
(EEC) No 2454/93, and

— have not undergone operations

there other

than

unloading and reloading.

2.
Proof that the conditions referred to in paragraph (1)(b)
have been satisfied shall be submitted to the Community autho-
rities. That proof may be provided, in particular, in the form of
one of the following documents:

(a) a single transport document issued in the country of origin
covering passage through the country or countries of
transit;

(b) the condition that the product has been transported directly,
within the meaning of Article 6, from that country to the
Community.

(b) a certificate issued by the customs authorities of the country

or countries of transit containing:

3.
The certificate of origin referred to in paragraph (2)(a)
shall not be required for imports of farmed salmon covered
by a proof of origin issued or made out in accordance with
the relevant rules established in order to qualify for preferential
tariff measures.

— a precise description of the goods;

— the dates of

their unloading and reloading or their

lading or unlading, identifying the vessels used.

5.2.2005

EN

Official Journal of the European Union

L 33/27

Article 7

Imports in the process of shipment to the Community

— in the case of transport by sea, the bill of lading showing

that loading took place before that date,

This Regulation shall not apply to products in the process
to the Community within the meaning of

1.
shipment
of
paragraph (2).

— in the case of transport by rail, the consignment note that
was accepted by the railway authorities in the country of
origin before that date,

Products shall be deemed to be in the process of shipment

2.
to the Community if they:

— left the country of origin before the date this Regulation

begins to apply, and

— are shipped from the place of loading in the country of
origin to the place of unloading in the Community under
cover of a valid transport document issued before the date
this Regulation begins to apply.

3.
The parties concerned shall provide, to the satisfaction of
the customs authorities, proof that the conditions laid down in
paragraph (2) have been met.

— in the case of transport by road, the CMR contract for the
carriage of goods or any other transport document issued in
the country of origin before that date,

— in the case of transport by air, the air consignment note
showing that the airline took the products over before that
date.

Article 8

The Member States and the Commission shall co-operate closely
to ensure compliance with this Regulation.

Article 9

However, the authorities may regard the products as having left
the country of origin before the date this Regulation begins to
apply if one of the following documents is provided:

This Regulation shall enter into force on the day following that
of its publication in the Official Journal of the European Union and
apply until 13 August 2008.

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

Done at Brussels, 4 February 2005.

For the Commission

Peter MANDELSON
Member of the Commission

L 33/28

EN

Official Journal of the European Union

5.2.2005

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5.2.2005

EN

Official Journal of the European Union

L 33/29

ANNEX II

LIST OF DEVELOPING COUNTRIES

(referred to in Article 4)

United Arab Emirates, Afghanistan, Antigua and Barbuda, Angola, Argentina, American Samoa, Anguilla, Antartica,
Aruba, Barbados, Bangladesh, Burkina Faso, Bahrain, Burundi, Benin, Brunei Darussalam, Bolivia, Brazil, Bahamas,
Bhutan, Botswana, Belize, Bermuda, Bouvet Island, British Virgin Islands, British Indian Ocean Territory, Democratic
Republic of Congo, Central African Republic, Congo, Côte d'Ivoire, Cameroon, Chad, Colombia, Costa Rica, Cuba,
Cape Verde, Cayman Islands, Christmas Island, Cocos Islands (or Keeling Islands), Cook Islands, Djibouti, Dominica,
Dominican Republic, Algeria, Ecuador, Egypt, Eritrea, Ethiopia, Fiji, Federated States of Micronesia, Falkland Islands, French
Polynesia, French Southern Territories, Gabon, Grenada, Ghana, Gambia, Guinea, Equatorial Guinea, Guatemala, Guinea-
Bissau, Guyana, Gibraltar, Guam, Honduras, Hong Kong, Haiti, Heard Island and McDonald Islands, Indonesia, India, Iraq,
Iran (Islamic Republic of), Jamaica, Jordan, Kenya, Cambodia, Kiribati, Comoros, St Kitts and Nevis, Kuwait, Lao People's
Democratic Republic, Lebanon, St Lucia, Sri Lanka, Liberia, Lesotho, Libyan Arab Jamahiriya, Morocco, Madagascar,
Marshall Islands, Mali, Myanmar, Mongolia, Mauritania, Mauritius, Maldives, Malawi, Mexico, Malaysia, Mozambique,
Macao, Mayotte, Montserrat, Namibia, Niger, Nigeria, Nicaragua, Nepal, Nauru, Netherlands Antilles, New Caledonia
and dependencies, Niue Island, Norfolk Island, Northern Mariana Islands, Oman, Panama, Peru, Papua New Guinea,
People’s Republic of China, Philippines, Pakistan, Palau, Paraguay, Pitcairn, Qatar, Rwanda, Samoa, Saudi Arabia,
Solomon Islands, Seychelles, Sudan, Sierra Leone, Senegal, Somalia, Suriname, Sao Tomé and Principe, El Salvador,
Syrian Arab Republic, Swaziland, South Georgia and South Sandwich Islands, St Helena and dependencies, St Pierre
and Miquelon, Togo, Tunisia, Tonga, East Timor, Trinidad and Tobago, Tuvalu, Tanzania (United Republic of), Chinese
Taipei, Tokelau, Turks and Caicos Islands, United States Minor outlying islands, Uganda, Uruguay, St Vincent and the
Northern Grenadines, Venezuela, VietNam, Vanuatu, Virgin Islands of USA, Wallis and Futuna Islands, Yemen, South
Africa, Zambia and Zimbabwe.