Commission Regulation (EC) No 858/2005 of 6 June 2005 accepting undertakings offered in connection with the anti-dumping proceeding concerning imports of potassium chloride originating in the Republic of Belarus or the Russian Federation and making imports of potassium chloride originating in the Republic of Belarus and the Russian Federation subject to registration
Date: 2005-06-06
Institutions: European Commission
Subjects: Belarus, Russia, anti-dumping legislation, chemical salt, customs regulations, import, originating product

7.6.2005

EN

Official Journal of the European Union

L 143/11

COMMISSION REGULATION (EC) No 858/2005

of 6 June 2005

accepting undertakings offered in connection with the anti-dumping proceeding concerning imports
of potassium chloride originating in the Republic of Belarus or the Russian Federation and making
imports of potassium chloride originating in the Republic of Belarus and the Russian Federation
subject to registration

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

(2)

Having regard to the Treaty
Community,

establishing the European

Having regard to Council Regulation (EC) No 384/96 of
22 December 1995 on protection against dumped imports
from countries not members of the European Community (1)
(the basic Regulation) and in particular Articles 8, 21 and 22(c)
thereof,

Having regard to Council Regulation (EC) No 992/2004 of
17 May 2004 amending Regulation (EEC) No 3068/92
anti-dumping duty on imports of
imposing a definitive
potassium chloride originating in Belarus, Russia or Ukraine (2),

Having regard to Commission Regulation (EC) No 1002/2004
of 18 May 2004 accepting undertakings offered in connection
with the anti-dumping proceeding concerning imports of
potassium chloride originating in Belarus, Russia or Ukraine
and making imports of potassium chloride in Belarus or
Russia subject to registration (3),

After consulting the Advisory Committee,

Whereas:

A. PROCEDURE

(1)

The Council, by Regulation (EEC) No 3068/92 (4),
imposed a definitive anti-dumping duty (the measures)
on imports of potassium chloride (potash) originating
in the Republic of Belarus (Belarus) and the Russian
Federation (Russia) and Ukraine. By Regulation (EC)
No 969/2000 (5), the Council amended Regulation (EEC)
No 3068/92.

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

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

(2) OJ L 182, 19.5.2004, p. 23.
(3) OJ L 183, 20.5.2004, p. 16. Regulation as amended by Commission

Regulation (EC) No 588/2005 (OJ L 98, 16.4.2005, p. 11).

(4) OJ L 308, 24.10.1992, p. 41. Regulation as last amended by Regu-

lation (EC) No 992/2004.

(5) OJ L 112, 11.5.2000, p. 4. Corrigendum: OJ L 2, 5.1.2001, p. 42.

In March 2004, by means of a notice published in the
Official Journal of the European Union (6), the Commission
launched, on its own initiative, a partial interim review of
the measures in force on imports of potash originating in
Belarus and Russia in order to examine whether they
should be amended to take account of the enlargement
of the European Union to 25 Member States on 1 May
2004 (enlargement).

The results of that partial interim review showed that it
was in the interests of the Community to provide for the
temporary adaptation of the measures so as to avoid a
sudden and excessively negative economic impact imme-
diately following enlargement on importers and users in
the 10 new Member States (EU-10) which acceded to the
European Union on enlargement.

regard,

In this
the Council, by Regulation (EC)
No 992/2004, authorised the Commission to accept
undertaking offers respecting the conditions set out in
recitals 27 to 32 of the same Regulation. On this basis,
and pursuant to Articles 8, 11(3), 21 and 22(c) of the
basic Regulation, the Commission, by Regulation (EC)
No 1002/2004 accepted undertaking offers
(special
Enlargement Undertakings)
an exporting
producer in Belarus jointly with companies situated in
Austria, Lithuania and Russia,
from an exporting
producer in Russia jointly with companies situated in
Russia
from an exporting
and (iii)
producer in Russia jointly with a company situated at
the time of acceptance in Cyprus.

and Austria,

from (i)

(ii)

In addition, in order to provide for the exemption from
the anti-dumping duties imposed by Regulation (EEC)
No 3068/92 on imports into the EU-10 made under
the terms of the special Enlargement Undertakings, Regu-
lation (EEC) No 3068/92 was amended by Regulation
(EC) No 992/2004.

Journal of

the European Union (7), pursuant

In April 2004, by means of two notices published in the
Official
to
Article 11(3) of the basic Regulation, the Commission
launched at the request of the two Russian exporting
producers with special Enlargement Undertakings partial
interim reviews of the anti-dumping measures applicable
to the companies concerned (partial interim reviews for
Russia).

(3)

(4)

(5)

(6)

(6) OJ C 70, 20.3.2004, p. 15.
(7) OJ C 93, 17.4.2004, p. 2 and p. 3.

L 143/12

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Official Journal of the European Union

7.6.2005

(7)

(8)

Journal of

the European Union (1), pursuant

In April 2005, by means of a notice published in the
Official
to
Article 11(2) of the basic Regulation, the Commission
launched at the request of the Community Industry for
potash an expiry review of the anti-dumping measures
applicable to Russia (expiry review for Russia) and to
Belarus (expiry review for Belarus).

In parallel, by means of a notice published in the Official
Journal of the European Union (2), pursuant to Article 11(3)
of the basic Regulation, the Commission launched at the
request of the exporting producer in Belarus a review of
the anti-dumping measures applicable to it
(partial
interim review for Belarus).

(9)

Offers of new special Enlargement Undertakings for a
further
temporary period have been made by the
companies concerned.

B. DURATION OF THE MEASURES

(10)

(11)

an exceptional measure

It should be recalled that acceptance of the undertakings
in question was
adopted
pursuant to Article 22(c) of the basic Regulation as the
Minimum Import Prices (MIPs) established (and to be
concerned) were not
respected by the
directly equivalent to the anti-dumping duty.

companies

In this regard, the MIPs were set at levels which were
higher than previous import prices from the countries
concerned, but below prices which totally eliminated
the injurious effects of dumping, as would normally be
the case. It was intended that these MIPs, applied over a
transitional period, would help lessen the economic
impact of the anti-dumping measures for importers and
particularly end users in the EU-10 during the period
following enlargement.

(12) As concerns the length of this transitional period, it was
stipulated in recital 14 of Regulation (EC) No 1002/2004
that acceptance of the Special Enlargement Undertakings
would be limited to an initial period of 12 months
the
without prejudice

to the normal duration of

(1) OJ C 89, 13.4.2005, p. 3.
(2) OJ C 89, 13.4.2005, p. 7.

existing measures. It follows from this that acceptance of
new undertakings, but with the same provisions, could
be accepted if the circumstances so warranted (e.g. if the
conditions prevailing at the time of acceptance of the
original undertakings still existed), provided that the tran-
sitional
is
exceptional measures
in determining whether new
respected. Accordingly,
undertakings are required,
it is necessary to make an
appraisal of the effectiveness of the measures.

character of

these

C. APPRAISAL

(13) Analysis of the monthly sales reports submitted to the
Commission by the companies concerned backed up by
available official statistical data showed that although
there has been convergence in prices, a difference still
appears to prevail between the prices charged by the
companies with special Enlargement Undertakings for
the product concerned to customers in the EU-10 and
those prevailing in the Community as constituted before
enlargement (EU-15).

(14)

(15)

The question of a shortage of supply on the EU-10
market was also raised by certain interested parties and
the alleged inability of the Community Industry to supply
potash to new customers in the EU-10 who, prior to
enlargement, had traditionally sourced the product
concerned from Belarus or Russia.

In this regard, it is to be expected that a period of re-
required by the Community
adjustment would be
Industry given the complex logistical and sales network
changes required for sales to the EU-10, to service what
is in effect a new market for them. Nevertheless, the
intra-Community exports of
Commission found that
in the EU-15 to
potash from the largest producer
customers
than doubled
between 2003 and 2004, even if the starting point was
comparatively low, which would indicate that partial
changes to the structure of supply in the EU-25 have
started to occur.

in the EU-10 had more

to

the

visits

verification

(16) As concerns compliance with the special Enlargement
exporting
Undertakings,
producers showed that
the companies concerned had
observed the MIPs and that the volumes exported to
the EU-10 had not exceeded the levels of the quantitative
ceilings stipulated in the undertakings. In addition, it was
found that the companies were broadly respecting their
traditional patterns of trade with individual customers in
the EU-10.

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Official Journal of the European Union

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(17) Moreover, according to the information available, there
have been no apparent ‘spill-overs’ from the EU-10 into
the EU-15 of imports of the product concerned which
had benefited from the exemption to the anti-dumping
duties afforded by the undertakings.

in the EU-10 but also help to alleviate the problems of
supply in the EU-10 in the short term.

D. CONCLUSION

1. General

(18)

The available information suggests that certain of the
negative conditions which prevailed prior to enlargement
and which necessitated the undertakings still appear to
exist.

(23) As concerns the length of the further period of appli-
cation of
the special Enlargement Undertakings, as
mentioned above, an expiry review for Belarus and
interim review for Belarus was
Russia and a partial
initiated on 13 April 2005. Given that
the expiry
review will normally be
concluded within twelve
months, it is considered appropriate to accept the new
special Enlargement Undertakings until 13 April 2006.

(24) Given also that the level of the anti-dumping measures
for Belarus and Russia are being reviewed, it is considered
appropriate to leave the level of the MIPs unchanged
pending the outcome of these reviews.

In addition, although there appear to have been some
changes in the supply chain with Community Industry
supplying more potash to the EU-10,
information
received from various interested parties indicated that
there may be short term supply difficulties in the EU-
even though the
10 for
Community Industry has started to increase its sales
there.

the product

concerned,

(25) With regard to the level of the quantitative ceilings to be
applied, it should be noted that these correspond to the
quantitative ceilings
twelve
months.

the initial period of

for

(26)

that

It should also be recalled that a significant degree of
difficulty in planning for potash customers in the EU-
10 market has also undoubtedly been created due to (i)
the fact
there was uncertainty in the market
concerning whether the current anti-dumping measures
would expire in May 2005 following their five-year
the two
imposition, and (ii)
partial
for Russia initiated in April
2004 by the Commission.

the unknown results of

interim reviews

In view of the foregoing, it is considered that particular
account should be taken of the question of Community
Interest and the concerns of the many importers and end
users of potash in the EU-10. It is considered that the
protection afforded by the current anti-dumping duties
would still cause a degree of financial hardship to be
suffered by the importers and end users if these anti-
dumping duties were to be applied at the present time.

that

in order

framework of

In conformity with Regulation (EC) No 992/2004, the
undertakings oblige each individual producing exporter
import
to respect MIPs within the
ceilings and,
the undertakings can be
monitored,
the exporting producers concerned have
also agreed to broadly respect their traditional selling
patterns to individual customers in the EU-10. The
exporting producers are also aware that if it is found
these sales patterns change significantly, or that
that
the undertakings become
in any way difficult or
impossible to monitor, the Commission is entitled to
the company’s undertaking
withdraw acceptance of
being
anti-dumping
definitive
in
resulting
imposed in its place, or it may adjust the level of the
ceiling, or it may take other remedial action.

duties

(27)

It is also a condition of the undertakings that if they are
breached in any way, the Commission will be entitled to
withdraw acceptance thereof resulting in definitive anti-
dumping duties being imposed in their place.

(19)

(20)

(21)

(22)

Therefore, on balance, it is concluded that the acceptance
of new special Enlargement Undertakings offered by the
companies concerned for a further period is justified as
this will not only lessen the economic impact for buyers

(28)

The companies will also provide the Commission with
regular and detailed information concerning their exports
to the Community, meaning that the undertakings can be
monitored effectively by the Commission.

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Official Journal of the European Union

Country

Company

Republic of Belarus

(29)

relevant

In order that the Commission can monitor effectively the
companies’ compliance with the undertakings, when the
request for release for free circulation pursuant to an
undertaking is presented to the
customs
authority, exemption from the duty will be conditional
upon the presentation of an invoice containing at least
the items of information listed in the Annex to Regu-
lation (EC) No 992/2004. This level of information is
authorities
also necessary
to
the shipment
ascertain with sufficient precision that
corresponds to the commercial documents. Where no
is presented, or when it does not
such invoice
correspond to the product presented to customs,
the
instead be payable.
appropriate anti-dumping duty will

to enable

customs

2. Disclosure to interested parties

(30) All interested parties which had previously made them-
selves known were advised of the intention to accept
undertakings for a further period. No comments were
received, however, which caused the Commission to
alter its views on the matter.

Russian Federation

E. REGISTRATION OF IMPORTS

(31) Although the terms of the original undertakings have
been observed during the initial period of their appli-
still
cation by the
considered to be an inherent risk that breaches of the
undertakings may occur, particularly towards the end of
the period of application of these special measures.

concerned,

companies

there

is

Russian Federation

7.6.2005

Taric Addi-
tional Code

A518

A519

A520

Enterprise

Produced and sold by Republican
Production
Unitary
Amalgamation
Belaruskali,
Soligorsk, Belarus, or produced
by Republican Unitary Enterprise
Production Amalgamation Bela-
and
ruskali, Soligorsk, Belarus
sold
Potash
Company, Minsk, Belarus, or JSC
International Potash Company,
Moscow,
Belurs
Handelsgesellschaft mbH, Vienna,
Austria, or UAB Baltkalis, Vilnius,
Lithuania, to the first independent
customer
in the Community
acting as an importer

Belarus

Russia,

by

or

by

JSC

International

Produced
Silvinit,
Solikamsk, Russia and sold by
Potash
JSC
Company, Moscow, Russia, or
Belurs Handelsgesellschaft mbH,
Vienna, Austria to the first inde-
the
customer
pendent
an
acting
Community
importer

in
as

by

by

JSC

and

sold

JSC
Produced
Uralkali, Berezniki, Russia or
produced
Uralkali,
Berezniki, Russia and sold by
SA, Geneva,
Uralkali Trading
inde-
Switzerland to the
the
customer
pendent
Community
an
acting
importer

first
in
as

(32)

It is therefore considered appropriate that customs autho-
rities register imports into the Community of the product
concerned originating in Belarus and Russia exported by
the companies from which new special Enlargement
Undertakings are accepted and for which an exemption
from the anti-dumping duties imposed by Regulation
(EEC) No 3068/92, as last amended by Regulation (EC)
No 992/2004, is sought for a maximum period of nine
months in accordance with Article 14(5) of the basic
Regulation,

HAS ADOPTED THIS REGULATION:

Article 1

in connection with the

The undertakings offered by the exporting producers mentioned
below,
anti-dumping proceeding
concerning imports of potassium chloride originating in the
Republic of Belarus and the Russian Federation are hereby
accepted:

Article 2

Customs authorities are hereby directed, pursuant to Article
14(5) of Regulation (EC) No 384/96 to take the appropriate
steps to register the imports into the Community of potassium
chloride originating in the Republic of Belarus or the Russian
Federation falling within CN codes 3104 20 10 (TARIC
codes 3104 20 10 10 and 3104 20 10 90), 3104 20 50 (TARIC
codes 3104 20 50 10 and 3104 20 50 90), 3104 20 90,
ex 3105 20 10
and
3105 20 10 20), ex 3105 20 90 (TARIC codes 3105 20 90 10
and
codes
3105 60 90 10 and 3105 60 90 20), ex 3105 90 91 (TARIC
codes 3105 90 91 10 and 3105 90 91 20),
ex 3105 90 99
(TARIC codes 3105 90 99 10 and 3105 90 99 20) produced
and sold or produced and exported by the companies listed
in Article 1 for which an exemption to the anti-dumping
imposed by Regulation (EEC) No 3068/92, as last
duties
amended by Regulation (EC) No 992/2004, is sought.

3105 20 90 20),

3105 20 10 10

ex 3105 60 90

(TARIC

(TARIC

codes

Registration shall expire nine months following the date of
entry into force of this Regulation.

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This Regulation shall enter into force on the day following that of its publication in the Official Journal of the
European Union and shall remain in force until 13 April 2006.

Article 3

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

Done at Brussels, 6 June 2005.

For the Commission

Peter MANDELSON
Member of the Commission