Proposal for a Council Regulation imposing a definitive anti-dumping duty on imports of potassium chloride originating in Belarus and Russia
Date: 2006-06-14
Institutions: European Commission
Subjects: Belarus, Russia, anti-dumping duty, chemical salt, dumping, import, originating product

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 14.6.2006 
COM(2006) 310 final 

Proposal for a 

COUNCIL REGULATION 

imposing a definitive anti-dumping duty on imports of potassium chloride originating in 
Belarus and Russia 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

1)  CONTEXT OF THE PROPOSAL 

•  Grounds for and objectives of the proposal 

This  proposal  concerns  the  application  of  Council  Regulation  (EC)  No  384/96  of 
22 December 1995 on protection against dumped imports from countries not members 
of  the  European  Community,  as  last  amended  by  Council  Regulation  (EC) 
No 2117/2005  of  23  December  2005  (‘the  basic  Regulation’)  in  the  proceeding 
concerning imports of potassium chloride originating in Belarus and Russia. 

•  General context 

This proposal is made in the context of the implementation of the basic Regulation and 
is the result of an investigation which was carried out in line with the substantive and 
procedural requirements laid out in the basic Regulation. 

•  Existing provisions in the area of the proposal 

The Council, by Regulation (EEC) No 3068/92 imposed definitive anti-dumping duties 
on imports of potash originating, inter alia, in Belarus and Russia. 

Following an expiry review pursuant to Article 11(2) and an interim review pursuant to 
Article  11(3)  of  the  basic  Regulation,  the  Council,  by  Regulation  No  969/2000, 
decided  that  the  above-mentioned  measures  should  be  maintained  and  amended  the 
form  of  the  measures.  The  measures  were  imposed  in  the  form  of  a  fixed  amount  in 
euro per tonne for the various categories and grades of potash. 

By  Regulation  (EC)  No  992/2004,  the  Council  provided  for  the  exemption  from  the 
anti-dumping  duties  of  imports  into  the  new  Member  States  that  acceded  to  the 
European  Union on 1 May 2004 made  under the terms of special undertaking offers, 
and authorised the Commission to accept those enlargement undertakings. 

By  Regulation  (EC)  No  1002/2004,  the  Commission  accepted  special  enlargement 
undertakings  from  two  exporting  producers  in  Russia  and  one  in  Belarus.  By 
Regulation  (EC)  No  858/2005,  the  Commission  accepted  new  special  undertakings 
from these exporting producers for a further period which ended on 13 April 2006.  

By  Regulation  (EC)  1891/2005,  the  Council  amended  Regulation  (EEC)  No  3068/92 
replacing  the  fixed  amounts  of  duties  with  individual  ad  valorem  duty  for  all  potash 
types  manufactured  by  the  Russian  applicants.  By  Decision  2005/802/EC,  the 
Commission accepted EU25 wide undertakings from the two Russian producers. 

•  Consistency with other policies and objectives of the Union 

Not applicable. 

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2)  CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

•  Consultation of interested parties 

Interested  parties  concerned  by  the  proceeding  have  already  had  the  possibility  to 
defend their interests during the investigation, in line with the provisions of the basic 
Regulation. 

•  Collection and use of expertise 

There was no need for external expertise. 

•  Impact assessment 

This proposal is the result of the implementation of the basic Regulation. 

The  basic  Regulation  does  not  foresee  a  general  impact  assessment  but  contains  an 
exhaustive list of conditions that have to be assessed. 

3)  LEGAL ELEMENTS OF THE PROPOSAL 

•  Summary of the proposed action 

On  13  April  2005,  the  Commission  initiated  an  anti-dumping  expiry  review 
investigation with regard to imports of potassium chloride originating in Belarus and 
Russia.  The  purpose  of  this  investigation  was  to  examine  whether  there  is 
continuation  or  recurrence  of  dumping  regarding  imports  of  potassium  chloride 
originating in Belarus and Russia, resulting in a continuation or recurrence of injury to 
the Community industry. On the same date the Commission initiated a partial interim 
review  investigation  limited  to  the  dumping  aspects  with  regard  to  imports  of 
potassium chloride originating in Belarus. 

The  investigation  showed  that  imports  of  potassium  chloride  originating  in  Belarus 
and Russia were dumped, and a likelihood of continuation of injury was established. 
It  is  therefore  concluded  that  anti-dumping  measures  have  to  be  maintained  on 
imports  from  Belarus  and  Russia.  Moreover,  as  a  result  of  the  interim  review 
investigation the form and the level of the anti-dumping duties applicable to imports 
of potassium chloride originating in Belarus should be amended to reflect the results 
of the investigation. 

It is therefore proposed that the Council adopts the attached proposal for a Regulation 
which should be published in the Official Journal of the European Union by 12 July 
2006 at the latest. 

•  Legal basis 

Council  Regulation  (EC)  No  384/96  of  22  December  1995  on  protection  against 
dumped  imports  from  countries  not  members  of  the  European  Community,  as  last 
amended by Council Regulation (EC) No 2117/2005 of 23 December 2005. 

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•  Subsidiarity principle 

The  proposal  falls  under  the  exclusive  competence  of  the  Community.  The 
subsidiarity principle therefore does not apply. 

•  Proportionality principle 

The proposal complies with the proportionality principle for the following reasons: 

The form of action is described in the above-mentioned basic Regulation and leaves 
no scope for national decision. 

Indication  of  how  financial  and  administrative  burden  falling  upon  the  Community, 
national governments, regional and local authorities, economic operators and citizens 
is minimized and proportionate to the objective of the proposal is not applicable. 

•  Choice of instruments 

Proposed instruments: regulation. 

Other means would not be adequate for the following reason: 

Other  means  would  not  be  adequate  because  the  basic  Regulation  does  not  foresee 
alternative options. 

4)  BUDGETARY IMPLICATION 

The proposal has no implication for the Community budget. 

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Proposal for a 

COUNCIL REGULATION 

imposing a definitive anti-dumping duty on imports of potassium chloride originating in 
Belarus and Russia 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, 

Having  regard  to  Council  Regulation  (EC)  No  384/96  of  22  December  1995  on  protection 
against dumped imports from countries not members of the European Community1 (‘the basic 
Regulation’) and in particular Article 11(2) and 11(3) thereof, 

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

Whereas: 

A. 

PROCEDURE 

1.  Measures in force 

(1) 

(2) 

(3) 

1 

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The Council, by Regulation (EEC) No 3068/922 (‘the original Regulation’), imposed 
definitive  anti-dumping  duties  on  imports  of  potassium  chloride  (‘potash’  or  ‘the 
product  concerned’)  originating,  inter  alia,  in  Belarus  and  Russia  (‘the  countries 
concerned’). 

Following an expiry review pursuant to Article 11(2) and an interim review pursuant 
to Article 11(3) of the basic Regulation (‘the previous investigation’) the Council, by 
Regulation  No  969/20003,  decided  that  the  above-mentioned  measures  should  be 
maintained and amended the form of the measures. The measures were imposed in the 
form  of  a  fixed  amount  in  euro  per  tonne  for  the  various  categories  and  grades  of 
potash. 

By Regulation (EC) No 992/20044, the Council provided for the exemption from the 
anti-dumping  duties  of  imports  into  the  new  Member  States  that  acceded  to  the 
European  Union  on  1  May  2004  (‘the  EU-10’)  made  under  the  terms  of  special 
undertaking  offers  (‘enlargement  undertakings’),  and  authorised  the  Commission  to 
accept those enlargement undertakings. On this basis, the Commission, by Regulation 

OJ  L  56,  6.3.1996,  p.  1.  Regulation  as  last  amended  by  Regulation  (EC)  No  2117/2005  (OJ  L  340, 
23.12.2005, p. 17). 
OJ L 308, 24.10.1992, p. 41. 
OJ L 112, 11.5.2000, p. 4. Corrigendum published in OJ L 2, 5.1.2001, p. 42. 
OJ L 182, 19.5.2004, p. 23.  

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(4) 

(5) 

(EC)  No  1002/20045,  accepted  enlargement  undertakings  from  (i)  an  exporting 
producer in Belarus jointly with companies situated in Austria, Lithuania and Russia, 
(ii)  from  an  exporting  producer  in  Russia  jointly  with  companies  situated  in  Russia 
and  Austria,  and  (iii)  from  an  exporting  producer  in  Russia  jointly  with  a  company 
situated at the time of acceptance in Cyprus. 

By Regulation (EC) No 858/20056, the Commission accepted new undertakings from 
the exporting producers mentioned above until 13 April 2006. 

Following two separate partial interim review investigations pursuant to Article 11(3) 
of the basic Regulation, requested by the Russian exporting producers JSC Silvinit and 
JSC  Uralkali,  the  Council,  by  Regulation  (EC)  1891/20057,  amended  Regulation 
(EEC) No 3068/92 replacing the fixed amounts of duties with individual ad valorem 
duties for all potash types manufactured by these Russian companies. By Commission 
Decision  No  2005/802/EC8,  undertakings  were  accepted  from  the  two  applicant 
companies.  

(6) 

Following  the  publication  of  a  notice  of  impending  expiry  of  the  anti-dumping 
measures in force9, the measures on imports originating in Ukraine expired on 12 May 
2005 since no request for an expiry review was lodged. 

2.  Requests for review 

2.1.  Request for an expiry review 

(7) 

(8) 

(9) 

Following  the  publication  of  the  above-mentioned  notice  of  impending  expiry,  the 
Commission  received  a  request  to  review  these  measures  with  regard  to  Russia  and 
Belarus pursuant to Article 11(2) of the basic Regulation. 

The  request  was  lodged  on  10  February  2005  by  the  European  Potash  Producers 
Association  (‘the  applicant’)  on  behalf  of  producers,  whose  collective  output 
constitutes about 99% of the Community production of potash, i.e. a major proportion 
of the total Community production. 

The request was based on the grounds that the expiry of the measures would be likely 
to  result  in  the  continuation  or  recurrence  of  dumping  and  injury  to  the  Community 
industry. Indeed, the applicant alleged that potash from the countries concerned is still 
being  sold  at  dumped  prices  in  the  Community.  The  applicant  also  claimed  that 
imports  of  the  product  concerned  from  Belarus  and  Russia  have  increased  and  the 
volumes  and  the  prices  of  the  imported  product  have  continued  to  have  a  negative 
impact on the market share held, the quantities sold and the level of prices charged by 
the  Community  industry,  resulting  in  substantial  adverse  effects  on  the  overall 
performance and financial situation of the Community industry. Finally, the applicant 
alleged  the  likelihood  of  further  injurious  dumping  and  presented  evidence  that  if 

5 

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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). 
OJ L 143, 7.6.2005, p. 11. 
OJ L 302, 19.11.2005, p. 14. 
OJ L 302, 19.11.2005, p. 79. 
OJ C 249, 8.10.2004, p. 3. 

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measures were allowed to lapse the fragile situation of the Community industry would 
further deteriorate. 

(10)  Having determined, after consulting the Advisory Committee, that sufficient evidence 
existed for the initiation of an expiry review, the Commission initiated an investigation 
through the publication of a notice of initiation10 pursuant to Article 11(2) of the basic 
Regulation. 

2.2.  Request for a partial interim review 

(11)  A  partial  interim  review  limited  to  dumping  was  requested  by  the  sole  exporting 
producer  in  Belarus,  Republican  Unitary  Enterprise  Production  Amalgamation 
Belaruskali (‘Belaruskali’). 

(12)  Belaruskali  provided  evidence  that,  as  far  it  is  concerned,  the  circumstances  on  the 
basis of which measures were established have changed and that these changes are of a 
lasting nature. 

(13)  Belaruskali demonstrated that a comparison of normal value in an appropriate market 
economy third country and its export prices to the EU over an extended period would 
lead to a reduction of dumping significantly below the level of the current measures. 
Therefore,  the  continued  imposition  of  the  measures  at  the  existing  level,  which  is 
based on the dumping previously established, would no longer be necessary to offset 
dumping. 

(14)  Having determined, after consulting the Advisory Committee, that sufficient evidence 
existed  for  the  initiation  of  this  partial  interim  review,  the  Commission  initiated  an 
investigation  through  the  publication  of  a  notice  of  initiation11  pursuant  to  Article 
11(3) of the basic Regulation. 

3. 

The investigation 

3.1.  Period of investigation 

(15)  The investigation of the likelihood of a continuation or recurrence of dumping for the 
expiry  review  pursuant  to  Article  11(2)  of  the  basic  Regulation  concerning  Belarus 
and  Russia  covered  the  period  from  1 January  to  31 December  2004  ('IP'  or  the 
'investigation  period').  The  examination  of  trends  relevant  for  the  assessment  of  the 
likelihood of a continuation or recurrence of injury covered the period from 1 January 
2001 up to the end of the IP ('the period considered'). 

(16)  The investigation period for the partial interim review pursuant to Article 11(3) of the 
basic Regulation concerning Belarus is the same as the one of the expiry review. 

3.2.  Parties concerned by the investigation 

(17)  The  Commission  officially  advised  the  Community  producers,  the  exporters  and 
producers  in  the  exporting  countries  and  the  importers/users  as  well  as  their 

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OJ C 89, 13.4.2005, p. 3. 
OJ C 89, 13.4.2005, p. 7. 

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representative  associations  known  to  be  concerned  and  the  representatives  of  the 
exporting  countries  of  the  initiation  of  the  two  reviews.  The  Commission  sent 
questionnaires to all these parties and to those who made themselves known within the 
time limit set in the notices of initiation. In addition, the known producers in Canada, 
which  was  selected  as  the  potential  analogue  country,  were  contacted  and  received 
questionnaires.  The  Commission  also  gave  the  parties  directly  concerned  the 
opportunity to make their views known in writing and to request a hearing. 

(18)  The  three  Community  producers  replied  to  the  questionnaire.  Fourteen  unrelated 
importers  and/or  users  also  supplied  full  questionnaire  replies  and  made  their  views 
known in writing. 

(19)  Replies  to  the  questionnaires  were  received  from  three  exporting  producers  in  the 
countries  concerned,  as  well  as  from  five  importers  in  the  Community  and  one 
exporting trader in Russia which were related to the exporting producers. 

(20)  One producer in the analogue country provided a complete questionnaire response and 
another producer in the analogue country provided detailed information concerning its 
cost of production of the like product. 

3.3.  Interested Parties and verification visits 

(21)  The  Commission  sought  and  verified  all  information  deemed  necessary  to  determine 
whether  or  not  there  is  a  likelihood  of  a  continuation  or  recurrence  of  dumping  and 
injury  and  whether  the  continued  imposition  of  the  measures  is  in  the  Community 
interest  or  not.  The  Commission  also  sought  and  verified  all  information  deemed 
necessary  to  determine  the  level  of  dumping  for  the  sole  exporting  producer  in 
Belarus. Investigations were carried out at the premises of the following companies: 

(a)  Community producers 

– 

– 

– 

Cleveland Potash Limited, Saltburn, United Kingdom, 

Iberpotash, S.A., Suria (Barcelona), Spain, 

K+S Kali GmbH, Kassel, Germany; 

(b)  Exporting producers in Russia 

– 

– 

JSC Silvinit (‘Silvinit’), Solikamsk, Perm Region, Russia, 

JSC Uralkali (‘Uralkali’), Berezniki, Perm Region, Russia; 

(c)  Related exporter to JSC Silvinit and Belaruskali 

– 

International Potash Company (‘IPC’), Moscow, Russia; 

(d)  Related importer of JSC Silvinit and Belaruskali 

– 

Belurs GmbH (‘Belurs’), Vienna, Austria; 

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(e)  Producers in the analogue country 

– 

– 

Agrium, Inc. (‘Agrium’), Calgary, Alberta, Canada, 

PCS Potash Corp, Inc (‘PCS’). Saskatoon, Saskatchewan, Canada; 

(f)  Unrelated importers in the Community 

– 

AUREPIO SP, Warsaw, Poland; 

(g)  Unrelated users in the Community 

– 

– 

– 

– 

Zaklady Chemiczne "Police" SA, Police, Poland, 

Fosfan S.A., Szczecin, Poland, 

Tessenderlo Chemie NV/SA, Brussels, Belgium, 

Yara SA, Brussels, Belgium. 

B. 

PRODUCT CONCERNED AND LIKE PRODUCT 

1. 

The product concerned 

(22)  The  product  concerned  is  the  same  as  in  the  previous  investigation,  i.e.  potassium 
chloride (‘potash’). It is generally used as agricultural fertiliser, directly, blended with 
other  fertilisers  or  after  transformation  into  a  complex  fertiliser  known  as  NPK 
(nitrogen, phosphor, potash). The potassium content is variable and is expressed as a 
percentage of the weight of potassium oxide (K2O) on the dry anhydrous product.  

(23)  Potash is generally commercialised in either a standard/powder form (standard potash) 
or in an “other than standard” form that includes but is not limited to a granular form 
(granular  potash).  The  product  is  classified  into  three  basic  categories,  based  on  the 
K2O content, namely: 

– 

– 

– 

potassium  content  not  exceeding  40%  K2O  -  falling  under  CN  code 
3104 20 10, 

potassium content exceeding 40% K2O but less than or equal to 62% - falling 
under CN code 3104 20 50,  

potassium content over 62% K2O - falling under CN code 3104 20 90 

and certain special mixtures or blends with a high content of potash, namely: 

– 

– 

potassium  content  equal  to  or  exceeding  35%  K2O  but  not  exceeding  40%  - 
falling under CN codes ex 3105 20 10, ex 3105 20 90, ex 3105 60 90, ex 3105 
90 91 and ex 3105 9099, 

potassium content exceeding 40% K2O but not exceeding 62% - falling under 
CN codes ex 3105 20 10, ex 3105 20 90, ex 3105 60 90, ex 3105 90 91 and ex 
3105 90 99. 

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As  in  the  previous  investigations,  it  was  established  that  the  different  types  and 
qualities of potash all share the same basic physical and chemical characteristics and 
essentially  the  same  basic  use.  Therefore,  they  are  to  be  considered  as  one  single 
product.  

2. 

Like product 

(24)  The investigation confirmed that the product concerned and the potash produced and 
sold  by  the  Community  producers  on  the  Community  market,  as  well  as  the  potash 
produced  and  sold  on  the  domestic  market  of  the  countries  concerned  and  that 
produced and sold by Canadian producers on the Canadian market have the same basic 
physical and chemical properties and the same uses. They are therefore considered to 
be a like product within the meaning of Article 1(4) of the basic Regulation.  

(25)  One exporter in Russia requested the exclusion of standard potash with a K2O content 
higher than 62%, which, it was claimed, is only used in pharmaceutical applications, 
has  different  prices  and  is  delivered  as  packed  (as  opposed  to  the  bulk  deliveries  of 
potash  used  as  a  fertilizer).  However,  as  explained  above,  the  product  concerned 
shares  the  same  basic  physical  characteristics  and  basic  chemical  composition  of 
potash of other grades. Regarding the alleged price differences, the investigation has 
shown that this product is frequently sold at prices comparable to potash with a K2O 
content of 60% - 62%. Furthermore, neither the fact that it has a slightly higher K2O 
content nor the way it is packed prevents it from being used as a fertiliser. Therefore, 
this claim had to be rejected. 

C. 

DUMPING 

1.  Dumping of imports during the investigation period 

1.1.  Belarus 

1.1.1. Analogue Country 

(26)  Since  Belarus  is  considered  a  non-market  economy  country,  the  Commission  had  to 
determine the normal value in this case on the basis of data obtained from producers in 
a  market  economy  third  country,  in  accordance  with  Article  2(7)  of  the  basic 
Regulation.  In  the  notice  of  initiation,  Canada  was  envisaged  as  an  appropriate 
analogue  country.  Canada  was  also  the  analogue  country  used  in  all  previous 
investigations in this proceeding. 

(27)  All  interested  parties  were  given  the  opportunity  to  comment  on  the  choice  of  the 

analogue country. 

(28)  The  Belarusian  authorities  argued  that  Russia  would  be  a  more  suitable  analogue 
country  than  Canada  because,  after  the  previous  investigation,  Russia  has  been 
acknowledged as a market economy country by the Community. Furthermore, it was 
alleged that the Canadian domestic market is not more competitive than that of Russia. 
Finally,  they  alleged  that  one  of  the  major  Canadian  producers  is  related  through  a 
third  company  to  some  producers  in  the  Community  and,  therefore,  it  would  not  be 
appropriate  to  calculate  the  normal  value  for  Belarus  on  the  basis  of  information 
provided by Canadian companies. 

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(29)  Furthermore the Belarusian authorities suggested that Russia should be selected as the 
analogue country because (i) the Belarusian and Russian potash producers used to be 
part of one industry in the USSR period, (ii) the Russian potash industry has a level of 
development  which  is  most  comparable  to  that  of  Belarus,  and  (iii)  the  production 
volume  in  Russia  is  more  comparable  to  Belarus  than  that  of  Canada.  Moreover, 
Russia would be a more suitable choice as an analogue country because access to raw 
materials  and  labour  costs  in  Russia  are  comparable  to  these  conditions  in  Belarus. 
Finally,  it  was  claimed  that  Russia  should  be  selected  since  the  Russian  exporting 
producers are taking part in the expiry review and the risk of non-co-operation by the 
Russian companies is negligible. 

(30)  Belaruskali  alleged  that  comparability  between  the  access  to  raw  materials  and 
production  process  in  Canada  and  Belarus  was  not  sufficiently  substantiated. 
Moreover, it alleged that the fact that Canada is the largest producer of potash is of no 
direct relevance to the selection of the analogue country and that selection of Russia 
for this purpose would be more suitable. 

(31)  The  Community  industry  claimed  that  the  Belarusian  and  the  Canadian  mines  are 
comparable  in  respect  of  cost  structure  and  efficiency  and  that  the  access  to  raw 
materials is largely similar in both countries. Furthermore, it claimed  that the potash 
prices  in  Canada  are  governed  by  normal  market  forces  and  are  not  distorted  by 
market  isolation  or  by  other  factors.  Moreover,  the  Community  industry  alleged  that 
there are clear indications that some cost factors in Russia do not represent correctly 
the  real  cost  situation  and  would  need  to  be  adjusted  in  any  event.  Finally,  it  was 
submitted  that  there  is  a  close  relationship  between  at  least  one  of  the  Russian 
producers  of  potash  and  the  Belarusian  producer  via  a  joint  sales  company  and, 
therefore, this company would have an interest to demonstrate a low normal value on 
the Russian market. 

(32)  As  regards  the  claims  made  concerning  the  suitability  of  Canada  to  be  used  as  an 
analogue  country,  it  has  to  be  recalled  that  the  normal  values  for  Belarus  have  been 
established  by  using  Canada  as  a  suitable  analogue  country  in  the  previous 
investigations in the same proceeding and that there is no evidence indicating that this 
choice would no longer be appropriate. Furthermore, it is recalled that Canada is the 
main producer and exporter of potash world-wide, ahead of Belarus and Russia. With 
regard  to  the  competition  on  the  Canadian  market  and  the  Russian  market,  it  was 
found  that  both  in  terms  of  production  and  of  the  number  of  operators  the  Canadian 
market is at least as competitive as the Russian market. Furthermore, the investigation 
showed that no duties or other limitations apply to the imports of potash into Canada. 
With  regard  to  the  manufacturing  process  and  access  to  raw  materials,  it  is  to  be 
recalled 
the 
manufacturing  process  and  access  to  raw  materials  are,  to  a  large  extent,  similar  in 
Canada  and  in  Belarus  and  no  evidence  has  been  put  forward  indicating  that  this 
would have changed. 

investigations  have  already  established 

the  previous 

that 

that 

(33)  As  regards  the  appropriateness  of  Russia  to  be  used  as  the  analogue  country,  it  was 
concluded  that  no  compelling  reasons  were  presented  by  the  parties  why  the 
information obtained from the Russian market instead of that of the Canadian market 
should be used as a better basis for establishing the normal value of potash in Belarus. 
In  this  regard,  it  has  to  be  recalled  that  certain  cost  elements  in  Russia  were  not 
reasonably reflected in the cost of production of the Russian producers and that these 

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cost  elements  had  to  be  adjusted  in  significant  amounts  as  explained  in  recital  (54). 
However,  it  was  considered  that  the  relationship  of  one  Russian  producer  with  the 
Belarusian  producer  would  not  necessarily  have  been  preclusive  to  the  possible 
selection  of  Russia  as  the  analogue  country.  The  claim  that  the  Russian  company 
would have an interest in demonstrating a low normal value ignores the fact that data 
used in, inter alia, analogue countries is subject to strict scrutiny before it can be used. 

(34)  The  institutions  took  note  of  the  allegations  presented  by  the  Belarusian  authorities 
concerning the relationship between at least one producer in the analogue country and 
the Community producers. Consequently, it was examined if such relationship existed 
between  the  companies  providing  the  information  in  Canada  and  the  Community 
producers.  In  this  regard,  the  investigation  showed  that  one  Canadian  producer 
providing  the  necessary  information  was  indirectly  related  to  some  producers  in  the 
Community. The information submitted by this company was verified at the premises 
of the company and it was found to be accurate and reliable and to thereby be a sound 
basis  for  establishing  normal  value.  It  was  concluded  that  the  relationship  of  one 
company  in  the  analogue  country  with  some  of  the  Community  producers  was  not 
preclusive to selecting Canada as the analogue country. Moreover, it was considered 
that the Belarusian and Russian producers being part of one industry during the USSR 
period did not make Russia a more suitable analogue country than Canada, as it was 
not substantiated how this fact would have contributed to Russia being a more suitable 
analogue  country.  With  regard  to  the  production  volume  in  Canada,  it  has  to  be 
recalled  that  Canada  is  the  biggest  producer  of  potash  world-wide,  selling  potash  in 
substantial  quantities  both  domestically  and  for  export.  The  individual  Canadian 
producers, however, differ from each other in terms of production and sales quantities. 
This  contributes  to  that  the  information  available  concerning  the  Canadian  market  is 
balanced  and  objective.  It  should  also  be  recalled  that  the  size  of  the  market  is  not 
decisive for the selection of the analogue country and that based on economies of scale 
the  bigger  market  could  only  contribute  to  the  benefit  of  the  Belarusian  producer. 
Therefore  also  this  claim  was  rejected.  Finally,  as  the  claim  concerning  the  level  of 
development was not substantiated, it had also to be rejected  

(35)  Therefore,  the  investigation  confirmed  that  Canada  should  be  used  as  an  appropriate 

analogue country. 

(36)  Consequently,  calculations  were  based  on  the  verified  information  from  the  two 

Canadian producers. 

1.1.2. Normal value 

(37)  The domestic sales of the Canadian producer (who provided a complete questionnaire 
response)  of  the  like  product  were  found  to  be  representative  as  they  represented  a 
major percentage in relation to the product concerned exported to the Community by 
the exporting producer in Belarus. 

(38)  An examination was also made as to whether the domestic sales of each product type, 
sold domestically in representative quantities, could be regarded as having been made 
in  the  ordinary  course  of  trade,  by  establishing  the  proportion  of  profitable  sales  to 
independent  customers  of  the  product  type  in  question.  In  cases  where  the  sales 
volume of a product type, sold at a net sales price equal to or above the calculated cost 
of production, represented more than 80% of the total sales volume of that type, and 

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where  the  weighted  average  price  of  that  type  was  equal  to  or  above  the  cost  of 
production,  normal  value  was  based  on  the  actual  domestic  price,  calculated  as  a 
weighted average of the prices of all domestic sales of that type made during the IP, 
irrespective  of  whether  these  sales  were  profitable  or  not.  This  was  found  to  be  the 
case  for  one  product  type  of  Agrium  which  was  sold  on  the  Canadian  market  and 
exported to the Community by Belaruskali. 

(39)  For three product types which were not sold on the domestic market in representative 
quantities, constructed normal value was used in accordance with Article 2(3) of the 
basic Regulation. Normal value was constructed by adding to the manufacturing costs 
of  the  exported  types  a  reasonable  percentage  for  selling,  general  and  administrative 
expenses (SG&A) and a reasonable margin of profit. In this regard and in accordance 
with  Article  2(6)  of  the  basic  Regulation,  the  amounts  for  SG&A  and  profits  were 
based  on  actual  data  pertaining  to  the  production  and  sale,  in  the  ordinary  course  of 
trade, of the like product on the domestic market. The information regarding the cost 
of production was based on the responses received from the two cooperating Canadian 
producers. 

1.1.3. Export price 

(40)  Given that the export sales of the cooperating exporter represented the totality of the 
imports  into  the  Community  of  the  product  concerned  originating  in  Belarus  during 
the IP, the determination of the export price was based on the information provided by 
the  cooperating  exporting  producer  in  Belarus.  It  was  found  that  potash  sales  of 
Belaruskali to the Community during the investigation period were made 1) directly to 
independent  customers  in  the  Community,  2)  through  related  importers  in  the 
Community or 3) through a related trader located in Russia (IPC). The related trader in 
Russia sold the product either to unrelated customers in the Community or to related 
importers in the Community. 

(41)  With  regard  to  the  sales  made  directly  to  independent  customers  in  the  Community, 
the prices actually paid or payable to Belaruskali or to IPC by these customers were 
taken as the basis for calculating the export price.  

(42)  With regard to the sales to related importers in the Community by Belaruskali or IPC, 
the  export  price  was  constructed  on  the  basis  of  the  price  at  which  the  imported 
products  were  first  resold  to  an  independent  buyer.  Adjustments  were  made  for  all 
costs  incurred  between  importation  and  resale  by  those  importers,  including  SG&A 
and  duties  and  assuming  a  reasonable  profit  margin.  A  profit  margin  of  7,9%  was 
considered to be reasonable for this type of market and was also found in line with the 
profit of unrelated importers.  

1.1.4. Comparison 

(43)  For the purpose of ensuring a fair comparison between the normal value and the export 
price,  due  allowance  in  the  form  of  adjustments  was  made  for  differences  affecting 
price comparability in accordance with Article 2(10) of the basic Regulation. On this 
basis,  adjustments  were  made  where  appropriate  with  regard  to  transport  (including 
handling  costs),  ocean  freight  and  insurance  costs,  packing  and  credit  costs.  The 
adjustments in the export price in respect of inland freight in the exporting country and 
credit costs were made based on the costs established in the analogue country. For the 

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export sales made via the related trader in Russia, an adjustment was also made to the 
export  price,  pursuant  to  Article  2(10)(i)  of  the  basic  Regulation.  The  adjustment 
pursuant  to  this  Article  was  made  at  the  level  of  3%  since  this  level  was  considered 
reasonable to reflect commissions paid to independent agents involved in the trade of 
the product concerned.  

1.1.5. Dumping Margin 

(44) 

In  accordance  with  Article  2(11)  of  the  basic  Regulation,  the  dumping  margin  was 
established  on  the  basis  of  a  comparison  of  the  weighted  average  normal  value  with 
the weighted average export price per product type. A comparison of the normal value 
and the export price of Belaruskali showed a dumping margin of 27,5% during the IP. 

(45)  The  comparison  of  the  data  concerning  exports  to  the  Community  provided  by 
Belaruskali  and  the  total  volume  of  imports  as  derived  from  the  Eurostat  import 
statistics indicated that the level of cooperation was high, since as mentioned above, 
Belaruskali’s exports represented the totality of all Community imports from Belarus 
during the IP.  

1.2.  Russia  

1.2.1. Normal value 

(46) 

It was first established for each of the two co-operating exporting producers whether 
its  total  domestic  sales  of  the  like  product  were  representative,  i.e.  whether  the  total 
volume  of  such  sales  represented  at  least  5%  of  its  total  export  sales  volume  to  the 
Community, in accordance with Article 2(2) of the basic Regulation. This was found 
to be the case for both exporting producers. 

(47)  Subsequently,  by  defining  the  product  types  in  accordance  with  the  TARIC  codes 
under  which  the  product  is  classified  (i.e.  by  standard  grade  or  other  than  standard 
grade,  including  granular)  and  by  the  packing  or  form  in  which  it  is  shipped  (i.e.  in 
bulk, in bags or in containers), an analysis was made as to whether the domestic sales 
of each product type were sufficiently representative for the purposes of Article 2(2) of 
the  basic  Regulation.  Domestic  sales  of  a  particular  product  type  were  considered 
sufficiently representative when the total domestic sales volume of that type during the 
IP represented 5% or more of the total sales volume of the comparable product type 
exported to the Community. This was the case for 3 out of 4 product types exported to 
the  Community  by  Uralkali  and  for  2  out  of  3  product  types  exported  to  the 
Community by Silvinit. 

(48)  An examination was also made as to whether the domestic sales of each product type, 
sold domestically in representative quantities, could be regarded as having been made 
in  the  ordinary  course  of  trade,  by  establishing  the  proportion  of  profitable  sales  to 
independent  customers  of  the  product  type  in  question.  In  cases  where  the  sales 
volume of a product type, sold at a net sales price equal to or above the adjusted unit 
cost, represented more than 80% of the total sales volume of that type, and where the 
weighted  average  price  of  that  type  was  equal  to  or  above  the  adjusted  unit  cost, 
normal value was based on the actual domestic price, calculated as a weighted average 
of  the  prices  of  all  domestic  sales  of  that  type  made  during  the  IP,  irrespective  of 
whether these sales were profitable or not. This was found to be the case for all those 

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product types of Silvinit and Uralkali which were both sold domestically and exported 
to the Community.  

(49)  Wherever domestic prices of a particular product type sold by an exporting producer 
could not be used in order to establish normal value because they had not been sold on 
the domestic market in representative quantities, another method had to be applied. In 
the absence of any other reasonable method, constructed normal value was used.  

(50) 

In all cases where constructed normal value was used and in accordance with Article 
2(3)  of  the  basic  Regulation,  normal  value  was  constructed  by  adding  to  the 
manufacturing costs of the exported types, a reasonable percentage for selling, general 
and administrative expenses (SG&A) and a reasonable margin of profit. In this regard 
and  in  accordance  with  Article  2(6)  of  the  basic  Regulation,  the  amounts  for  SG&A 
and  profits  were  based  on  actual  data  pertaining  to  the  production  and  sale,  in  the 
ordinary course of trade, of the like product on the domestic market.  

(51)  As  concerns  energy  costs,  such  as  electricity  and  gas  used  in  the  mining  and 
production processes of the product concerned, the investigation established that these 
costs  form  a  significant  proportion  of  the  total  cost  of  manufacturing  of  potash 
producers,  not  only  in  Russia  but  in  other  producing  countries  as  well.  It  was 
considered  appropriate  in  the  present  case  to  also  compare  the  Russian  producers' 
energy  purchase costs  per unit to those of other major potash producers with similar 
production methods, output levels and similar natural advantages in order to determine 
whether the prices paid were not abnormally low and reasonably reflecting the normal 
costs. As there are no other producers of potash in Russia, this information was sought 
and obtained from two Canadian producers.  

(52)  The data provided showed that the energy requirements of the two Canadian producers 
were similar to those of the Russian producers and that electricity and gas purchased 
by  these  companies  was  derived  from  domestic  hydro-electric  power  and  major  gas 
fields,  as  is  the  electricity  and  gas  used  by  the  Russian  companies.  The  comparison 
showed  that  the  cost  per  unit  for  electricity  paid  by  the  Canadian  producers  was 
similar to that paid by the Russian producers. 

(53)  As concerns gas supplies, it was established on the basis of data found in the published 
annual  report  for  2004  of  the  Russian  gas  provider  OAO  Gazprom  (whose  regional 
distributor was the supplier to the exporting producers in question) that the domestic 
price of gas paid by the two Russian producers was around one fifth of the export price 
of  natural  gas  from  Russia.  The  same  report says that ‘OAO Gazprom together with 
the  Government  of  the  Russian  Federation  carry  out  a  lot  of  work  to  optimize  the 
regulated gas wholesale prices.’ According to the analysis presented in the said report, 
there  is  ‘a  risk  of  low  prices  for  the  natural  gas  sold  in  the  domestic  market’  and 
‘Gazprom  Group  is  required  to  supply  natural  gas  to  Russian  consumers  at  prices 
regulated by the Federal Tariff Service. As of now, these prices are considerably lower 
than the international prices for natural gas.’ Moreover, as it was found in the previous 
review investigation concluded in November 2005 by Regulation (EC) No 1891/2005, 
the  annual  report  of  2003  stated  that  ‘OAO  Gazprom  did  not  make  any  profit  in  the 
domestic  market’.  In  this  regard,  as  the  gas  prices  paid  by  the  companies  did  not 
increase,  there  is  no  indication  that  this  situation  would  have  changed  in  the  IP. 
Therefore, all available data strongly suggest that the gas prices charged to domestic 
customers were made at regulated prices far from cost recovery levels. Moreover, the 

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investigation  showed  that  the  price  of  gas  paid  by  the  two  Russian  producers  was 
significantly lower than the gas price paid by the two Canadian producers. 

(54) 

In  view  of  the  above,  it  was  therefore  considered  that  the  prices  charged  by  the 
regional  Russian  gas  provider  to  the  Russian  potash  producers  in  the  investigation 
period  could  not  reasonably  reflect  the  costs  associated  with  the  production  of  gas 
when compared to the exported price of gas from Russia and the price of a Canadian 
gas provider to major industrial users in Canada. Therefore, in accordance with Article 
2(5)  of  the basic Regulation,  an adjustment to the cost of production  for  each of  the 
Russian  companies  was  made.  In  the  absence of  any  other  reasonable  basis,  such  an 
adjustment was made using information concerning the price of gas for export, net of 
transport  costs,  value  added  tax  and  excise  duty.  This  adjustment  was  made  in 
accordance with the methodology used in the previous review investigation concluded 
in November 2005 by Regulation (EC) No 1891/2005. 

(55)  As regards the adjustment concerning the prices of natural gas, the Russian authorities 
put forward that natural comparative or competitive advantages must be properly taken 
into  account  in  anti-dumping  proceedings.  Moreover,  the  Russian  authorities  alleged 
that the methodology used for determining profit while constructing the normal value 
was illegal and unacceptable. To this end, it has to be recalled that no adjustment was 
effected concerning any referred comparative or competitive advantages. However, an 
adjustment  was  made  concerning  the  costs  of  gas  associated  with  the  production  of 
potassium  chloride  pursuant  to  Article  2(5)  of  the  basic  Regulation  as  explained  in 
recitals (51) to (54) above as these costs were not reasonably reflected in the records of 
the  parties  concerned.  With  regard  to  the  construction  of  the  normal  value,  this  was 
done  in  accordance  with  Article  2(6)  of  the  basic  Regulation  as  explained  in  recital 
(50) above. Consequently, these arguments were rejected. 

(56)  As also concerns cost of production, it was claimed by the Community industry that 
depreciation  based  conventionally  on  the  acquisition  (historical)  value  of  the  capital 
assets would not, in accordance with Article 2(5) of the basic Regulation, reasonably 
reflect  the  costs  associated  with  the  production  of  the  product  concerned.  It  was 
submitted,  therefore,  that  an  upward  adjustment  to  the  Russian  producers’  costs  was 
required. 

(57) 

In this regard, the on-the-spot verification visits to the Russian producers showed that 
the original value of their assets had been determined on the basis of valuations carried 
out during the privatization process which took place in 1993. These asset values were 
subsequently  revised  between  1993  and  1997  as  a  result  of  the  application  of 
‘revaluation  coefficients’ 
to  deal  with 
hyperinflation.  At  the  end  of  1997,  following  a  Decree  of  the  Russian  Government, 
independent  valuations  of  assets  were  carried  out  by  independent  evaluators.  Three 
basic  criteria  were  adopted  in  establishing  these  asset  values,  one  of  which  was  the 
replacement  value  of  the  asset.  The  result  of  these  independent  assessments  are 
reflected in the opening Balance Sheet of the companies in 1998.  

the  Russian  Government 

issued  by 

(58)  Therefore,  in  the  absence  of  any  substantive  evidence  showing  that  depreciation  had 
not  been  correctly  reflected  in  the  accounts  of  the  exporting  producers,  it  is  not 
considered warranted at present time to make any adjustment to depreciation costs in 
the cost of production data used for establishing the normal value of the companies. 

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1.2.2. Export price 

(59)  With  regard  to  Silvinit,  it  was  found  that  the  company’s  sales  of  potash  to  the 
Community  during  the  investigation  period  were  made  1)  directly  to  independent 
customers  in  the  Community,  2)  through  related  importers  in  the  Community  or  3) 
through an unrelated trader located in Switzerland. In the case of Uralkali all sales of 
potash to the Community were made through unrelated traders located in Cyprus and 
in Switzerland. 

(60) 

In  all  cases  where  exports  of  potash  were  made  to  independent  customers  in  the 
Community,  the  export  price  was  established  in  accordance  with  Article  2(8)  of  the 
basic  Regulation,  i.e.  on  the  basis  of  export  prices  actually  paid  or  payable.  With 
regard  to  the  sales  to  related  importers  in  the  Community  by  the  related  trader,  the 
export price was constructed on the basis of the price at which the imported products 
were  first  resold  to  an  independent  buyer.  Adjustments  were  made  for  all  costs 
incurred  between  importation  and  resale  by  those  importers,  including  SG&A  and 
duties and assuming a reasonable profit margin, in accordance with Article 2(9) of the 
basic  Regulation.  A  profit  margin  of  7,9%  was  considered  to  be  reasonable  for  this 
type of market and was also found in line with the profit of unrelated importers. 

1.2.3. Comparison 

(61)  For the purpose of ensuring a fair comparison between the normal value and the export 
price,  due  allowance  in  the  form  of  adjustments  was  made  for  differences  affecting 
price comparability in accordance with Article 2(10) of the basic Regulation. On this 
basis,  adjustments  were  made,  where  appropriate,  with  regard  to  indirect  taxes, 
transport  (including  handling  costs),  ocean  freight  and  insurance  costs,  packing  and 
credit  costs.  Adjustments  were  also  made  where  the  export  sales  were  made  via  a 
related  company  located  in  a  country  outside  the  Community,  pursuant  to  Article 
2(10)(i) of the basic Regulation. The adjustment pursuant to this Article was made at 
the level of 3% since this level was considered reasonable to reflect commissions paid 
to independent agents involved in the trade of the product concerned. 

1.2.4. Dumping margin 

(62) 

In  accordance  with  Article  2(11)  of  the  basic  Regulation,  the  dumping  margin  was 
established  on  the  basis  of  a  comparison  of  the  weighted  average  normal  value  with 
the  weighted  average  export  prices  per  product  type.  This  comparison  showed  the 
existence  of  significant  dumping  of  imports  of  the  product  concerned  by  the 
cooperating exporters at the level of more than 8% for Uralkali and more than 14% for 
Silvinit. 

(63)  The  comparison  of  the  data  concerning  exports  to  the  Community  provided  by  the 
exporting  producers  and  the  total  volume  of  imports  as  derived  from  the  Eurostat 
import statistics indicated that the level of cooperation was high, since, the cooperating 
exporting  producers  represented  the  totality  of  all  Community  imports  from  Russia 
during the IP. 

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2. 

Likelihood of continuation of dumping 

2.1.  General 

(64)  The three co-operating producers represent the totality of imports from the countries 
concerned.  The  examination  of  whether  it  would  be  likely  that  dumping  continues 
should measures be repealed was therefore based to a large extent on the information 
provided by these cooperating exporting producers. 

2.1.1. Current Dumping  

(65) 

In order to determine whether there was a likelihood of continuation of dumping, the 
Commission  investigated  the  existence  of  current  dumping  on  exports  from  the 
countries  concerned  to  the  Community  on  the  grounds  that  if  dumping  was  taking 
place,  then  it  was  reasonable,  in  the  absence  of  any  information  to  the  contrary,  to 
consider that it would be likely to continue in the future. In this regard, it is recalled 
that  the  level  of  dumping  for  potash  originating  in  both  of  the  countries  concerned 
continued to be significant (see recitals (26) to (62)). 

2.1.2. Relationship between export prices to third countries and the sales price in the 

Community  

(66) 

It is also noted that export prices to third countries by all the producers concerned were 
found  to  be  on  average  below  the  sales  prices  of  the  Community  industry  in  the 
Community.  This  means  that  the  prevailing  price  level  for  the  product  concerned  in 
the  Community  market  makes  the  Community  market  a  very  attractive  one  for  the 
exporters  in  the  countries  concerned.  On  this  basis,  it  was  considered  that  there  is 
indeed  an  economic  incentive  to  shift  exports  from  non-EU  countries  to  the  more 
profitable Community market in case of repeal of the measures in force. 

2.2.  Belarus 

2.2.1. Production, production capacity and investment in Belarus 

(67)  Belaruskali  has  managed  to  increase  its  production  by  25%  during  the  period 
considered. As the table shows, the production volumes have mainly increased in 2003 
and the IP. 

2001 

2002 

2003 

IP 

Actual 
Belarus 

production 

in 

100

102

114 

125

(68)  During the period considered, Belaruskali has increased its production capacity by 3%. 
A further growth of 12 percentage points in production capacity was foreseen by 2006. 
In  addition,  it  is  noted  that  whilst  Belaruskali  was  producing  potash  close  to  full 
capacity  levels  during the  IP, it declared a significant further increase in its capacity 
and  total  investment  in  2005  and  2006.  The  reported  production  capacity  and 
investment translated in euros in an indexed form is as follows: 

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2001 

2002 

2003 

2004 (IP)

2005* 

2006* 

100 

100 

100 

103 

114 

115 

Production 
capacity 

Investment 

100 

132 

111 

128 

175 

175 

*) based on Belaruskali’s estimate 

(69)  Based  on  the  above,  it  can  be  concluded  that  Belaruskali  has  potential  capacity  to 
increase  its  exports  to  the  Community  market  should  the  measures  be  repealed  as 
Belaruskali  declared  a  further  increase  of  its  production  capacity  and  significant 
growth in its investment activity.  

2.2.2. Domestic market in Belarus  

(70)  The  domestic  sales  of  potash  in  Belarus  remained  at  a  low  level  during  the  period 
considered,  representing  less  than  10%  of  the  total  sales  of  Belaruskali.  In  fact,  the 
domestic sales volume in Belarus decreased by 3% between 2001 and the IP. As the 
domestic  market  was  slightly  shrinking  it  could  not  absorb  the  increase  of  the 
production. This is not likely to change in the future. Therefore, the company has to 
export an essential part of its production.  

2.2.3. Belarusian export sales to other countries 

(71) 

Information provided by the  sole exporting producer in  Belarus showed that sales to 
non-EU  countries  were  made  in  significant  quantities,  accounting  for  82%  of  total 
exports  (the  main  export  markets  being  the  People’s  Republic  of  China,  Brazil  and 
India).  Furthermore,  export  volumes  to  third  countries  increased  by  25%  between 
2001  and  the  IP.  Therefore,  the  investigation  confirmed  that  most  of  the  potash 
production in Belarus was directed to export markets in increasing quantities. 

(72)  The  prices  of  the  types  of  potash  sold  to  the  Community  by  Belaruskali  were,  on 
average, found slightly higher than the prices of corresponding types of potash sold to 
third  markets.  Since,  as  concluded  in  recital  (44),  export  sales  from  Belarus  to  the 
Community were made at dumped levels, this indicated that exports to third markets 
were  also  dumped  at  slightly  higher  levels  than  the  export  sales  to  the  Community. 
Moreover,  the  Community  market  is  more  attractive  to  exports  of  potash  at  dumped 
prices from the company concerned due to its slightly higher price level, its proximity, 
reduced  payment  risks  due  to  the  solvency  of  customers,  and  due  to  favourable 
payment terms. 

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2.3.  Russia 

2.3.1. Production, production capacity and investments in Russia 

(73)  The Russian producers have managed to increase their production by 29% during the 
period considered. As the table shows, the production volumes have mainly increased 
during the IP. 

2001 

2002 

2003 

IP 

Actual 
Russia 

production 

in 

100 

104 

112 

129 

(74)  Whilst  the  production  capacity  of  the  two  Russian  companies  had  remained  stable 
during  the  period  considered,  the  companies  indicated  an  increase  of  6%  by  2006. 
Furthermore,  according  to  the  information  submitted  by  the  Russian  producers,  they 
still had available capacity to increase production of potash. 

2001 

2002 

2003 

2004 (IP)

2005* 

2006* 

100 

100 

100 

100 

102 

106 

Production 
capacity in 
Russia 

(75) 

In addition, they reported significant growth in their investment in 2005 and 2006. The 
reported investment translated into euro in an indexed form is as follows: 

2001 

2002 

2003 

2004 (IP)

2005* 

2006* 

100 

64 

71 

84 

103 

261 

Investment 
in Russia 

*) based on the Russian companies’ estimates 

(76)  Based on the above, it can be concluded that the exporting producers in Russia have 
available  capacity  to  increase  their  exports  to  the  Community  market  should  the 
measures be repealed. Moreover, both companies declared significant growth in their 
investments suggesting a potential further increase in their production capacity. 

2.3.2. Domestic market in Russia 

(77)  The  domestic  sales  of  potash  in  Russia  remained  at  a  low  level  during  the  period 
considered,  representing,  on  an  average,  less  than  15%  of  the  total  sales  of  the  two 
companies.  The  volume  of  domestic  sales  in  Russia  increased  by  5%  between  2001 
and  the  IP.  The  growth  of  the  domestic  market  could  not  absorb  the  increase  of  the 
production (29%) and therefore the two companies have to export an essential part of 
their production.  

EN 

20 

   EN 

 
 
 
 
2.3.3. Russian export sales to other countries 

(78) 

Information  provided  by  the  exporting  producers  showed  that  sales  to  non-EU 
countries were made in significant quantities, accounting for 95% of total exports (the 
main export markets being the People’s Republic of China and Brazil). Furthermore, 
the  Russian  exports  to  third  countries  grew  by  46%  between  2001  and  the  IP. 
Therefore,  the  investigation  confirmed  that  most  of  the  potash  production  in  Russia 
was directed to export markets in increasing quantities.  

(79)  The prices of the types of potash sold to the Community by the companies concerned 
were found to be lower than the prices of corresponding types of potash sold to third 
markets.  However,  the  Community  market  is  still  attractive  to  exports  of  potash  at 
dumped prices from the companies concerned due to its proximity, reduced payment 
risks due to the solvency of customers and due to favourable payment terms.  

2.4.  Conclusion on the likelihood of continuation of dumping  

(80)  The  fact  that  the  generally  prevailing price  level  of  the  Community  producers  in  the 
Community is higher than the average export price level of the Belarusian and Russian 
exporting producers to third markets must be considered as an incentive for increasing 
exports to the Community at dumped prices. 

(81)  Since  the  exporting  producers  in  both  Belarus  and  Russia  have  unused  production 
capacity  and  taken that all companies concerned showed significant increase in  their 
total  investment  and  production  capacity,  it  can  be  concluded  that,  should  the 
measures be repealed, additional production would be exported to the Community, or 
sales  currently  exported  to  countries  outside  the  Community  would  be  redirected 
towards the Community market in significant quantities. 

(82)  Moreover,  the  investigation  showed  that  the  potash  market  outside  the  Community 
was  characterised,  during  the  IP,  by  certain  volatility,  in  the  form  of  considerable 
fluctuations  of  export  prices.  This  volatility  is  deemed  to  be  the  result  of  an 
exceptional  situation  caused  by  the  strong  increase  in  the  demand  in  some  emerging 
markets,  such  as  those  of  Asia  and  South  America.  Under  these  circumstances,  it  is 
likely  that  significant  quantities  of  potash  from  Belarus  and  Russia  would  be 
redirected  to  the  rather  stable  Community  market,  should  the  growth  in  these  export 
markets reach saturation and the increase in demand consequently stop or turn into a 
decrease. In this respect, it should also be noted that the overseas markets are subject 
to much higher transportation costs than the Community market, which, being close, is 
more cost-efficient to reach by boat or rail.  

(83)  As  regards  prices,  the  investigation  showed  that  imports  into  the  Community 
originating in Belarus and Russia are still made at dumped prices. Therefore, it is to 
assume,  in  the  absence  of  any  indication  to  the  contrary,  that  dumping  would  likely 
continue in the future. 

(84)  For these reasons, it is concluded that there is a likelihood of continuation of dumped 
imports  from  the  countries  concerned  and  that  the  dumped  imports  would  increase 
considerably should measures be repealed. 

EN 

21 

   EN 

 
D. 

LIKELIHOOD OF CONTINUATION OR RECURRENCE OF INJURY 

1.  Definition of the Community Industry 

(85)  The  investigation  confirmed  that  the  three  complainant  Community  producers 
represented 99% of the Community production of potash. They therefore constitute the 
Community industry within the meaning of Article 4(1) of the basic Regulation.  

(86)  Since  two  Community  producers  are  related  companies  (Cleveland  Potash  Ltd.  and 
Iberpotash  S.A.  both  belong  to  the  ICL  Group,  Israel  Chemicals  Ltd,  Tel-Aviv),  the 
Community industry is comprised of only two independent groups of manufacturers, 
the ICL Group and K+S Kali GmbH. 

(87)  As  the  Community  industry  is  comprised  of  only  two  groups  of  manufacturers, 
information regarding the Community industry can only be given in indexed form, for 
confidentiality reasons. For the purposes of the injury analysis, only potash produced 
by the Community  industry  was taken into consideration, while resales of purchased 
potash (mainly potash produced by the ICL Group in Israel) were excluded. 

(88)  The analysis of injury indicators has been carried out on the basis of Eurostat data and 
of  the  information  submitted  in  the  questionnaire  responses  by  the  cooperating 
exporting producers and by the Community industry. 

2.  Analysis  of  the  situation  of  the  Community  industry  and  of  the 

Community market for potash 

2.1.  Community consumption 

(89)  The  total  consumption  of  potash  in  the  Community  was  calculated  by  adding  to  the 
sales  of  the  Community  industry  on  the  Community  market  the  imports  into  the 
Community of potash originating in the countries concerned and from all other third 
countries. 

(90)  On  this  basis,  Community  consumption  increased  from  7 231 000  tonnes  in  2001  to 

around 8 030 000 tonnes in the IP, i.e. an increase of approximately 11%. 

EN 

22 

   EN 

 
Community 
consumption 
1000 tonnes 

in 

2001 

2002 

2003 

2004 (IP) 

EU-10 

Index 

EU-15 

Index 

EU-25 

Index 

1 053

1 055

1 154

1 381 

100

100

110

131 

6 177

6 206

6 568

6 649 

100

100

106

108 

7 231

7 262

7 722

8 030 

100

100

107

111 

(91)  During  the  period  considered,  virtually  all  imports  from  Belarus  and  Russia  into  the 
EU-15 were made under inward processing relief mechanism (‘IPR’), while IPR was 
not used for the imports into the EU-10. Imports under IPR enter into competition with 
the like product manufactured by the Community industry, as they are processed in the 
Community by fertiliser manufacturers who buy part of their raw materials used in the 
production  of  complex  fertilizers,  which  are  also  destined  for  export,  from  the 
Community industry. Imports under IPR therefore were taken into account in line with 
the consistent practice of the Community institutions, in establishing the Community 
consumption and the analysis of imports from the countries concerned. 

2.2.  Imports from the countries concerned 

2.2.1. Volume of imports 

(92)  During the IP, the exporting producers in the countries concerned sold potash on the 
EU-10 market under the terms of special enlargement undertakings referred to above 
in recital (3). The quantities sold under the terms of the undertaking have been taken 
into account to reflect the presence of the countries concerned on the EU market. 

(93)  The  volume  of  imports  of  potash  originating  in  Russia  into  the  EU-25  increased  by 
19%  during  the  period  considered.  The  volume  of  imports  originating  in  Belarus 
increased,  during  the  same  period,  by  44%.  The  overall  imports  from  the  countries 
concerned,  calculated  on  an  EU-25  basis,  increased  by  37%  during  the  period 
considered.  After  a  slight  decrease  in  2002  due  to  a  decrease  in  sales  from  Belarus 
mainly  to  Spain,  sales  from  the  countries  concerned  significantly  increased  in  2003 
and 2004 by around 20% in both years. 

EN 

23 

   EN 

 
Import quantity  

2001 

2002 

2003 

2004 (IP) 

Belarus EU-15 

Belarus EU-10 

Belarus EU-25 

Russia EU-15 

Russia EU-10 

Russia EU-25 

Countries  concerned 
EU-25 

2.2.2. Market share 

100

100

100

100

100

100

58

105

94

88

112

101

104

127

122

95

98

97

154 

140 

144 

105 

131 

119 

100

96

115

137 

(94)  The  market  share  of  the  imports  from  the  countries  concerned  into  the  Community 
market increased by 23% during the period considered. However, the increase has not 
been constant: the market share remained almost stable until 2003 and then suddenly 
increased in 2004. 

Market  share  of  the 
countries concerned  

2001 

2002 

2003 

IP 

Belarus EU-15 

Belarus EU-10 

Belarus EU-25 

Russia EU-15 

Russia EU-10 

Russia EU-25 

100

100

100

100

100

100

57

105

94

88

100

112

98

116

114

90

90

89

143 

107 

129 

97 

107 

100 

Countries 
EU-25 

concerned 

100

95

108

123 

2.2.3. Price evolution and price behaviour 

2.2.3.1. Price evolution of the imports concerned 

(95)  The prices of the imports subject to investigation over the period considered followed 
a downward trend as the table below shows. There has been a moderate price increase 
during  the  IP  following  an  increase  in  demand  in  other  third  countries,  mainly  in 

EN 

24 

   EN 

 
China.  This  increase  was,  however,  significantly  smaller  than  the  price  decreases  in 
the previous years. 

Average prices of 
potash in EUR/tonne 
(EU-25) 

Belarus (Index) 

Russia (Index) 

Total (Index) 

2001 

2002 

2003 

IP 

100

100

100

95

97

95

82

78

82

95 

84 

93 

(96)  The average decrease in the price of potash from the countries concerned amounts to 

7% during the period considered. 

2.2.3.2. Price Behaviour 

(97) 

In  order  to  establish  price  undercutting,  prices  of  exports  of  potash  originating  in 
Belarus  and  Russia  for  sale  to  independent  customers  were  compared  to  invoiced 
prices made by the Community industry for its sales on the Community market. It was 
thus established that the undercutting margin for potash of Belarusian origin was 18%, 
while the undercutting margin for potash originating in Russia was between 17% and 
23%. 

2.3.  Economic situation of the Community industry 

2.3.1. Production 

(98)  During  the  period  considered,  the  total  production  of  potash  in  the  Community  has 
slightly grown with the exception of 2002, when the production slightly decreased due 
to a shortage of hoisted mineral from the mines for one Community producer. Figures 
for the total Community production of potash were as follows: 

Production 

2001 

2002 

2003 

IP 

Index 

100

95

102

104 

2.3.2. Production capacity 

(99)  Production  capacity  of  the  Community  industry  was  stable  throughout  the  period 

considered. Figures of total production capacity of potash were as follows: 

Capacity 

Index 

2001 

2002 

2003 

IP 

100

100

100

100 

EN 

25 

   EN 

 
2.3.3. Capacity utilisation 

(100)  Capacity  utilisation  of  the  Community  industry  decreased  in  2002  but  began  to 
increase in 2003. Over the period considered the capacity utilisation of the Community 
industry for potash increased by 3%. 

Capacity utilisation 

2001 

2002 

2003 

IP 

Index 

100

96

102

103 

2.3.4. EU Sales volume 

(101)  The  total  sales  volume  of the Community industry to unrelated customers in the EU 

slightly increased by 1% during the period considered as shown below: 

EU Sales volume 

2001 

2002 

2003 

IP 

Index 

100

98

102

101 

2.3.5. Market share 

(102)  The  Community  industry’s  market  share  continually  decreased  during  the  period 

considered as shown below: 

EU market share 

2001 

2002 

2003 

IP 

Index 

100

97

95

91 

2.3.6. Growth 

(103)  Although  the  Community  potash  market  increased  by  11%  during  the  period 
considered, the Community industry was not in a position to benefit from this. They 
were only able to increase their EU sales volume by 1%, this is significantly less than 
the market growth. 

2.3.7. Price development 

(104)  The investigation showed that the Community producers’ average selling price rose in 
the course of the period considered by 6%. It first remained rather stable between 2001 
and  2003,  but  then  increased  by  6%  between  2003  and  the  IP.  The increase  in  price 
coincides with a significant increase in demand in other third countries, mainly in the 
People's Republic of China. This shows that prices on the Community potash market 
are influenced by the demand prevailing on other markets. The average sales price of 
the Community industry for potash on the Community market developed as follows: 

Average  sales  price  in 
EUR/tonne 

2001 

2002 

2003 

IP 

Index 

100

99

100

106 

EN 

26 

   EN 

 
2.3.8. Profitability 

(105)  The  profitability  of  domestic  sales  of  the  Community  industry,  expressed  as  a 
percentage of net sales, increased during the period considered. While the Community 
industry  suffered  losses  in  2001  and  2002,  they  regained  profitability  in  2003  and 
2004.  The  profitability  of  the  Community  industry  on  the  Community  market  for 
potash developed as follows: 

Profit rate 

2001 

2002 

2003 

IP 

Index 

-100

-497

51

412 

2.3.9. Employment, productivity and wages 

(106)  Employment in the Community industry remained essentially stable: 

Personnel  employed  in 
the 
of 
production 
potash 

2001 

2002 

2003 

IP 

Index 

100

100

101

100 

2.3.10. Stocks 

(107)  The  closing  stocks  of  the  Community  producers  for  potash  constantly  decreased  by 
about  27%  during  the  period  considered.  Closing  stocks  of  the  Community  industry 
have been, on a medium-term average, around 500 000 tonnes. Closing stocks at the 
end of the IP have been below average due to increased sales, in particular because of 
increased  exports,  and  for  logistical  reasons.  The  closing  stocks  of  the  Community 
industry of potash developed as follows: 

Closing stocks 

2001 

2002 

2003 

IP 

Index 

100

93

84

73 

2.3.11. Investments  

(108)  Total investments of the Community industry initially significantly increased between 
2001  and  2002,  but  subsequently  decreased  to  a  level  22%  below  the  2001  figures 
mainly  due  to  a  planned  reduction  on  replacement  investments  for  one  Community 
producer. The investments of the Community industry developed as follows: 

Investments 

2001 

2002 

2003 

IP 

Index 

100

147

98

78 

EN 

27 

   EN 

 
2.3.12. Return on investments 

(109)  As the net book value of assets used for the production of the like product has changed 
very little during the period considered, return on investment has developed in parallel 
with profitability. 

Return on Investments 

2001 

2002 

2003 

IP 

Index 

-100

-477

48

412 

2.3.13. Cash flow and ability to raise capital 

(110)  Total cash flow of the Community industry first decreased considerably between 2001 
and  2002,  but  thereafter  increased  in  2003  and  the  IP.  During  the  period  considered 
cash flow increased by 64%. 

Cash flow 

Index 

2001 

2002 

2003 

IP 

100

56

127

164 

(111)  All  the  Community  producers  are  part  of  large  corporate  groups  listed  on  the  stock 

exchange, which allows them to raise capital within the group. 

2.3.14. Magnitude of dumping and recovery from past dumping 

(112)  As  concerns  the  impact  on  the  Community  industry  of  the  magnitude  of  the  actual 
margin of dumping found in the IP, given the volume and prices of imports from these 
two countries, this impact cannot be considered to be negligible. However, it should be 
noted that the margin for Belarus is lower than the one that was found in the previous 
investigation. It should also be noted that the volume of dumped imports from Belarus 
and Russia has increased since the previous investigation. 

2.3.15. Conclusion on the situation of the Community industry 

(113)  The  Community  industry  is  still  in  a  process  of  recovery  from  the  past  dumping. 
During  the  period  considered  this  recovery  materialised  to  a  certain  extent  in  the 
increase of sales prices and a positive development of indicators such as production, 
capacity utilisation, sales volumes and stocks. These positive developments resulted in 
a profitable situation for the Community industry during the IP. However, the market 
share showed a negative trend and as said above the Community industry had to cut 
down investments. Moreover, the profit level achieved is still substantially below the 
profit  which  was  considered  as  a  level  that  the  Community  industry  could  expect  to 
achieve in the absence of dumped imports, i.e. 9%. Therefore, it can be concluded that 
the  Community  industry  has  partially  recovered  from  the  injurious  dumping,  but  is 
still in a fragile situation. 

(114)  Subsequent to disclosure of the findings, one exporter and an interested party claimed 
that the negative development of some injury indicators was influenced by the fact that 
one  Community  producer  located  in  France  had  ceased  its  potash  production  in  the 
course  of  the  period  of  analysis.  In  this  respect,  it  should  be  noted  that,  since  this 
French  producer  had  ceased  its  potash  production  during  the  year  2001  and  its 

EN 

28 

   EN 

 
inclusion  in  the  injury  analysis  for  that  year  only  would  have  distorted  the 
comparability  of  data,  information  relating  to  that  Community  producer  was  never 
included in the injury indicators. 

2.4.  Import volumes and import prices from other third countries 

(115)  The  import  volume  of  potash  from  other  third  countries  increased  during  the  period 
considered  from  about  1 016 000  tonnes  in  2001  to  1 255 000  tonnes  during  the  IP. 
This corresponds to an increase of 24%. The major part of the increase is attributable 
to  imports  from  Israel  and  Jordan.  It  should  be  noted  that  imports  from  Israel  were 
predominantly made by companies related to the Community industry. 

Imports 
third 
thousand tonnes 

from  other 
in 

countries 

2001 

2002 

2003 

IP 

Change 
2001-IP 

Israel 

Jordan 

Canada 

Other Countries 

552

140

225

91

745

180

184

96

740

210

174

95

643 

278 

203 

128 

Total 

1 016

1 209

1 223

1 255 

+17%

+99%

-10%

-55%

+24%

(116)  The market share of imports from other third countries increased slightly from 14% in 
2001 to 15% in 2004. Imports from those countries were predominantly made into the 
EU-15. 

(117)  According to Eurostat, the average sales price for these imports decreased from 134,94 
EUR  per  tonne  in  2001  to  127,24  EUR  per  tonne  during  the  IP,  but  nevertheless 
always exceeded the prices of the Community industry and were significantly higher 
than prices of potash originating in Russia and Belarus. In detail, the development was 
as follows: 

Average import prices 
from other third 
countries (EUR/tonne) 

2001 

2002 

2003 

IP 

Change 
2001-IP 

Israel 

Jordan 

Canada 

119,80

126,25

127,17

125,16 

170,55

145,41

123,69

117,02 

139,83

137,12

120,46

127,51 

Other Countries 

159,95

142,94

158,24

157,76 

Total 

134,94

132,10

128,03

127,24 

+4%

-31%

-9%

-1%

-6%

EN 

29 

   EN 

 
(118)  It  follows  from  the  above  that,  in  particular  in  view  of  their  higher  price  levels  and 
their rather stable market share, imports from third countries did not affect the current 
situation of the Community industry. 

2.5.  Export activity of the Community industry 

(119)  The  Community  industry’s  exports  of  potash  to  third  countries  had  a  positive  trend. 
The overall increase in exports amounts to 23% in the period considered. Exports had 
therefore no negative effect on the situation of the Community industry. In detail, the 
development during the period considered was as follows: 

Export sales volumes of 
the Community 
industry 

2001 

2002 

2003 

IP 

Index 

100

107

127 

123 

3.  Conclusion on continuation or recurrence of injury 

3.1.  Current situation of the Community industry 

(120)  As mentioned in recital (90) above, the Community consumption of potash increased 
by about 11% during the period considered, reaching its highest level in 2004. 

(121)  While the market share of the Community industry declined by 9%, the market share 

of the countries concerned increased by 23% during the period considered.  

(122)  The market share of other third countries increased by 1 percentage point to a level of 
15% at prices not undercutting the sales prices of the Community industry. Therefore, 
it is considered that the imports from other third countries have not had any significant 
impact on the economic situation of the Community industry during the IP. 

(123)  At the same time the evolution of the economic situation of the Community industry 
has been mixed, a number of injury indicators such as market share and investments 
have  developed  negatively,  while  others,  such  as  production,  sales  volume,  sales 
prices and profitability have improved. 

(124)  The  investigation  showed  the  existence  of  abnormally  low  import  prices  which 
continue to be dumped and had a negative effect on the sales volumes, market share 
and consequently on the profitability of the Community industry. The negative effect 
on  the  sales  volume  is  shown  by  the  fact  that  the  increase  in  sales  volume  of  the 
Community  industry  was  very  small  (+1%),  when  compared  to  the  increase  in 
consumption  in  the  Community  market  over  the  period  considered  (+11%).  Only 
during  the  last  six  months  of  the  IP,  the  situation  as  to  import  prices  concerned 
improved somewhat because these prices were raised due to the undertakings in force.  

(125)  Overall, the Community industry therefore would remain vulnerable to continuation of 

injurious dumping, if measures were allowed to lapse. 

(126)  On the basis of the elements above, it was found that no clear finding of continuation 
of injury could be established. It was therefore examined whether there is a likelihood 
of recurrence of injury. 

EN 

30 

   EN 

 
3.2.  Likelihood of recurrence of injury  

(127)  It  was  concluded  above  (see  recital  (84))  that  dumped  imports  from  the  countries 
concerned  would  increase  significantly  if  measures  were  to  be  repealed.  Indeed,  the 
Community  market  is  an  attractive  one  because  of  the  geographical  proximity 
compared  to  the  other  main  export  markets  (Brazil,  China  and  India)  and  more 
favourable  payment  terms.  Furthermore,  the  domestic  markets  of  the  exporting 
producers only absorb limited parts of their production. 

(128)  Production capacity in Belarus and Russia has remained rather stable during the period 
considered  totalling  20  million  tonnes  of  potash,  which  is  about  33%  of  the  world-
wide  capacity  and  about  250%  of  the  Community  consumption.  Important  further 
investments  to  increase  production  capacity  are  planned.  Moreover,  there  is  spare 
production capacity in Russia. 

(129)  In addition, the partial recovery of the Community industry described in recital (113) 
is to a large extent due to the existence of the anti-dumping measures. This recovery 
would be in danger should measures be repealed. Repealing the measures would lead 
to  the  sale  of  increasing  quantities  of  potash  from  the  countries  concerned  on  the 
Community  potash  market.  Such  an  increase  in  sales  can  only  be  accomplished  by 
undercutting  existing  price  levels.  Such  undercutting  of  price  levels  will  inevitably 
cause an erosion of sales prices and a decrease of the profitability of the Community 
industry, leading to injury. 

3.3.  Conclusion on recurrence of injury 

(130)  As  shown  above,  the  situation  of  the  Community  industry  remains  vulnerable  and 
fragile.  In  recital  (81)  it  was  concluded  that  additional  production  is  likely  to  be 
exported to the Community from Belarus and Russia if measures would expire. Since 
these  exports  are  likely  to  be  made  at  dumped  prices,  this  would  result  in  a 
deterioration of the sales of the Community industry, its market shares, sales prices as 
well  as  the  consequent  deterioration  of  its  financial  situation.  On  this  basis,  it  is 
therefore concluded that the expiry of the measures would in all likelihood result in a 
worsening of the still fragile situation of the Community industry and a recurrence of 
injury. Consequently, it is proposed that the current anti-dumping measures should be 
maintained. 

E. 

COMMUNITY INTEREST 

1. 

Introduction 

(131)  Pursuant to Article 21 of the basic Regulation, it was examined whether a prolongation 
of the existing anti-dumping measures would be against the interest of the Community 
as  a  whole  or  not.  The  determination  of  the  Community  interest  was  based  on  an 
appreciation of all the various interests, such as the Community industry, the importers 
and  users  of  the  product  concerned.  In  order  to  assess  the  likely  impact  of  a 
continuation of the measures, the Commission services requested information from all 
interested parties mentioned above. 

(132)  It should be recalled that in the previous investigation the adoption and maintenance of 

measures was considered not to be against the interest of the Community. 

EN 

31 

   EN 

 
(133)  Due  to  the  large  number  of  importers,  it  was  decided  to  apply  sampling.  Sampling 
questionnaires were sent to 21 importers/users and replies from all were received. The 
sample taken included 5 Community importers. In accordance with Article 17 of the 
basic Regulation, this sample covered more than 80% of the total imports and was the 
largest  representative  volume  of  imports  which  could  reasonably  be  investigated 
within the time available. Each of the five importers included in the sample submitted 
a full questionnaire reply. 

(134)  Altogether,  23  questionnaires  were  sent  out  to  users  of  which  7  submitted 
questionnaire  replies.  Furthermore,  questionnaires  were  sent 
importer/user 
organisations.  The  European  Fertilizer  Import  Association  (EFIA)  replied  to  the 
questionnaire as well as a number of user associations in different Member States. 

to 

(135)  On  this  basis,  it  was  examined  whether,  despite  the  findings  on  continuation  of 
dumping and recurrence of injury, compelling reasons existed which would lead to the 
conclusion  that  it  is  not  in  the  Community  interest  to  maintain  measures  in  this 
particular case. 

2. 

Interests of the Community industry 

(136)  In the course of this investigation it has been established that the Community industry 
is viable and competitive, but continues to be in a fragile situation. This is partly due 
to  its  shrinking  market  share  in  the  Community,  and  also  to  its  unsatisfactory  profit 
situation which has still not recovered to a normal and stable level, supporting the high 
investment necessary to bring the industry back to a long term sound perspective. 

(137)  The  trade  union  association  of  miners  in  the  Community  and  the  General  Workers 
Union  of  the  United  Kingdom  came  forward  arguing  that  the  Community  industry 
provided  for  an  important  number  of  jobs  in  the  Community  which  would  be  put  at 
risk if measures would lapse. 

(138)  In  view  of  the  economic  difficulties  experienced  by  the  Community  industry  in  the 
past  and  the  still  volatile  situation  of  the  market  as  experienced  during  the  IP,  it  is 
considered that, if the measures were allowed to lapse the situation of the Community 
industry  would  be  put  at  risk.  This  carries  a  high  likelihood  that  the  situation  of  the 
Community industry would deteriorate again from its currently moderately profitable 
status.  This  could  entail  a  severe  reduction  in  investments  and  in  the  numbers  of 
employees. 

(139)  If,  however,  measures  are  maintained,  this  will  allow  the  Community  industry  to 
further  recover  and  in  particular  gain  a  perspective  which  allows  the  investments 
necessary  to  ensure  the  long-term  viability  and  competitiveness  of  the  industry. 
Therefore, the continuation of measures is in the interests of the Community industry. 

3. 

Interests of importers (traders) 

(140)  The  cooperating  importers  of  potash  were  generally  against  the  prolongation  of  the 
anti-dumping measures. They argued that the continuation of measures would have a 
negative  influence  by  cutting  the  links  to  their  traditional  suppliers,  in  particular,  if 
undertakings would not be continued. They also argued that the Community producers 
could, if duties are prolonged, develop a dominant position on the Community market, 

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thus  reducing  free  competition  within  the  Community  to  a  minimum  which  would 
drive  up  prices  in  the  Community  further.  One  importer,  however,  argued  that  the 
present  situation  with  measures  in  force  guarantees  a  correct  development  of  the 
market.  Consequently,  this  importer  requested  that  the  anti-dumping  measures  are 
maintained. 

(141)  Whereas in the EU-15 most of the potash from the countries concerned were imported 
under the IPR, enlargement undertakings allowed duty-free imports from the countries 
concerned  under  certain  conditions.  Moreover,  imports  from  other  third  countries 
remained  at  a  rather  stable  level,  at  15%  market  share.  There  was  thus  substantial 
competition on the Community market and there is no reason to expect that this would 
change.  The  argument  concerning  the  alleged  dominant  position  of  the  Community 
industry has therefore to be rejected. 

(142)  Subsequent  to  disclosure  of  the  findings,  a  number  of  interested  parties  insisted  that 
the continuation of the measures would create an anti-competitive situation, whereby 
the Community industry would enjoy a dominant position. In this respect, it is to be 
noted  that  no  indication  was  found  during  the  investigation  that  the  existence  of  the 
measures,  apart  from  reducing  the  effects  of  injurious  dumping,  has  significantly 
modified  the  competitive  situation  in  favour  of  the  Community  industry.  On  the 
contrary, imports from the countries concerned have even increased and imports from 
other  third  countries  continue  to  represent  a  substantial  share  of  the  Community 
market.  Therefore,  no  element  seems  to  indicate  that  a  continuation  of  the  measures 
could cause a deterioration of the competitive situation in the Community market. 

(143)  As regards the  alleged difficult access for traders to imported  potash,  this claim was 

not substantiated. Thus, this claim had to be rejected. 

(144)  It  should  also  be  noted  that  importers  (traders)  of  potash  often  also  import  other 
products. Although some importers focus their business on potash, for other importers 
the  potash  business  accounts  for  as  little  as  10%  of  their  business.  In  addition, 
importers  currently  focussing  on  potash  have  indicated  that  they  could  switch  their 
focus  to  other  products  demanded  by  their  customer  base,  primarily  other  fertilizers. 
Subsequent  to  disclosure  of  the  findings,  however,  one  importer  and  one  importers’ 
association claimed that certain importers are heavily depending on imports of potash 
from Belarus and would hardly be able to switch to other sources of supply in case the 
measures  were  maintained.  It  was  found,  however,  that  a  shift  to  other  sources  of 
supply, e.g. the Community industry or imports from countries other than Belarus, is 
indeed a possibility available to importers. Although this shift may have some impact 
on  the  economic  and  financial  results  of  these  importers,  it  is  considered  that  their 
level of profitability would not be affected so substantially as to undermine their long 
term viability. In view of all arguments brought forward by importers, it is concluded 
that the effects of the anti-dumping measures on the financial situation of importers are 
relatively  limited.  Indeed,  on  the  basis  of  the  verified  questionnaire  replies,  it  was 
found that the profitability of the importers has not been negatively influenced by the 
existing  anti-dumping  measures  so  far.  There  are  no  reasons  to  believe  that  this 
situation would substantially change if measures are maintained. 

(145)  It  is  therefore  concluded  that  a  continuation  of  the  measures  would  not  have  a 

substantial impact on the situation of importers (traders). 

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4. 

Interests of users 

4.1.  Farmers 

(146)  No cooperation was obtained from the direct users of potash as a fertiliser (farmers), 
although  their  representative  organisation  received  a  questionnaire.  One  farmer's 
association of a Member State, however, argued that anti-dumping duties would harm 
the position of the farmers in a competitive market where import prices of inputs like 
fertilizers are regulated while prices of imported foodstuffs are not. 

(147)  This  argument  has  to  be  rejected  because  anti-dumping  measures  do  not  deal  with 
overall  questions  concerning  agricultural  policy.  Anti-dumping  investigations  only 
aim  at  re-establishing  a  situation  of  fair  trade  following  a  behaviour  of  injurious 
dumping. In the absence of any other substantial argument and of any indication that 
the existing anti-dumping measures would have had a negative effect on farmers, it is 
to  be  concluded  that  the  continuation  of  anti-dumping  duties  will  not  have  a  major 
negative impact for farmers. 

4.2.  Fertilizer manufacturers 

(148)  The  users  submitting  questionnaire  replies  were  all  fertiliser  manufacturers  who  buy 
potash from the Community industry and also import it from the countries concerned 
or from third countries. For them, potash is a raw material for producing fertilisers that 
often  consist  of  three  different  nutrients:  nitrogen,  phosphate  and  potash  (NPK-
fertilisers or compound fertilizer). This means that potash is one of the cost elements 
for  their  final  products,  representing  between  15  and  30%  of  the  production  cost. 
During  the  period  considered  the  production  costs  of  fertilisers  containing  potash 
significantly decreased in 2002 and 2003, followed by a moderate increase during the 
IP, without reaching the levels prevailing in 2001. It can therefore be concluded that 
the  anti-dumping  measures  on  potash  did  not  have  a  significant  impact  on  the  cost 
structure of the fertilizer manufacturers. 

(149)  Most of these users argued in the same manner against the continuation of measures as 
the  importers.  However,  one  fertiliser  producer  pointed  out  that  it  would  be  in  its 
interest to have potash  producers  both inside and outside the  Community also in the 
future. 

(150)  As the competing fertiliser producers in third countries do not pay anti-dumping duties 
on their purchases of potash, the Community fertiliser manufacturers also claimed that 
they are unable to compete with the prices of the final product offered by their foreign 
competitors. In this respect, it should be noted, however, that the Community fertiliser 
manufacturers  have  the  possibility  to  import  under  IPR,  i.e.  without  paying  anti-
dumping duties. Furthermore, it is recalled that other sources of supply exist, both in 
third  countries  not  subject  to  anti-dumping  measures,  and  in  the  Community. 
Moreover,  the  investigation  has  not  shown  that  these  users  were  unable  to  compete 
with imported compound fertilizers on the Community market. 

(151)  On  the  basis  of  the  above,  it  is  concluded  that  measures  have  not  had  a  significant 
negative  impact  on  the  situation  of  users.  Indeed,  the  impact  of  the  measures  on  the 
profitability of the fertilizer manufacturers during the period considered was minimal 
and no elements have been put forward indicating that this would change if measures 

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were maintained. It is therefore concluded that the interests of users are not such as to 
prohibit the continuation of measures. 

5.  Consequences for competition on the Community market 

(152)  The  measures  in  their  current  form  clearly  have  had  a  stabilising  effect  on  the 
Community  industry  which  was  able  to  exit  the  loss  making  period  and  regain  a 
moderately  profitable  situation.  This  development  would  not  have  been  possible 
without  measures.  However,  this  could  not  prevent  a  further  concentration  of  the 
market as evidenced by the take-over of two Community producers by the ICL Group 
from Israel. Moreover, there was a close-down of the French potash industry in 2001 
because  the  mines  were  exhausted.  It  was  argued  by  importers  and  users  that  this 
development  led  practically  to  a  duopoly  on  the  EU  market,  holding  a  combined 
market share in excess of 70%, in the EU-15 even in excess of 80%. Therefore, it was 
argued that the current measures have affected the market in a way that has impeded 
competition. 

(153)  This  argument  has  to  be  rejected,  as  the  current  measures  have  allowed  the 
Community industry to maintain its operations and partially recover from the effects 
of injurious dumping. In absence of measures, it is likely that competition would have 
been  reduced  even  more  since  the  Community  producers  would  have  been  forced  to 
close  down  potash  production.  Therefore,  the  continuation  of  measures  prevents  a 
further reduction of competition by allowing the Community industry to survive and 
remain competitive. 

(154)  Moreover, it is also recalled that the presence of a number of other competitors on the 
Community market from third countries, as well as from the countries concerned has 
ensured competition on the Community market and there is no reason to presume that 
this would change if measures are maintained. 

6.  Conclusion on Community interest 

(155)  Having analysed the various interests involved, it is concluded that, on the one hand, a 
continuation of the anti-dumping measures is likely to result in a stable and predictable 
development  for  the  Community  potash  market,  which  will  allow  the  Community 
industry  to  further  recover  and  remain  competitive  under  fair  conditions  of 
competition.  On  the  other  hand,  leaving  the  Community  industry  without  adequate 
protection  against  the  dumped  imports  would  most  probably  wipe  out  its  small 
profitability gained in recent years and lead to a serious deterioration of its situation. 
In fact, should the measures lapse, the Community industry would in all likelihood be 
forced  to  abandon  the  market  step  by  step  and  a  larger  part  of  the  market  would  be 
taken over by the Belarusian and Russian exporters, leaving an ever limited choice of 
sources of potash for importers, farmers and users in the Community. Therefore, the 
price  advantage  for  importers,  which  would  result  from  allowing  the  anti-dumping 
measures  to  lapse,  is  by  far  outweighed  by  the  benefits  to  the  Community  industry 
resulting from the continuation of measures against the injurious dumping. 

(156)  The disadvantage for users and end-users when measures are maintained is considered 
to  be  very  limited  compared  to  the  outlook  to  gain  a  stable  and  viable  Community 
industry.  In  fact,  the  prolongation  of  measures  does  not  change  any  of  the  present 
market  conditions,  under  which  the  users  are  not  substantially  affected.  The  likely 

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35 

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negative  effects  on  the  situation  of  the  Community  industry  are  outweighing  the 
possible burden for users and end-users, which will not be different from the situation 
existing  at  present.  It  is  therefore  concluded  that  there  are  no  compelling  reasons 
against the prolongation of the existing anti-dumping measures. 

F. 

LASTING NATURE OF CHANGED CIRCUMSTANCES 

(157)  In  the  framework  of  the  interim  review  concerning  imports  of  potash  originating  in 
Belarus, it was also examined whether the changed circumstances with respect to the 
original  investigation  regarding  dumping  could  reasonably  be  considered  to  be  of  a 
lasting nature in accordance with Article 11(3) of the basic Regulation. 

(158)  By comparing the normal values and export prices found between the previous and the 
current  investigation  it  has  been  established  that,  account  being  taken  of  comparable 
product types, normal value has considerably increased, but the average export price 
has  increased  even  higher,  leading  to  decreased  levels  of  dumping.  As  for  the 
Belarusian export prices to other markets, they have been found to generally be in line 
with export prices to the EU market. No evidence was found that exports from Belarus 
would not continue to be made at dumped prices, yet at a lower level than in the past. 
Given the above, it is reasonably safe to conclude that the new lower level of dumping 
is of a lasting nature.  

(159)  In view of all these factors, it is considered appropriate to amend the existing measures 
regarding Belarus, by lowering the dumping margin to that established in the present 
investigation. 

(160)  According  to  Article  9(4)  of  the  basic  Regulation,  the  amount  of  the  anti-dumping 
duty should not exceed the margin of dumping established, but it should be less than 
that  margin  if  such  lesser  duty  would  be  adequate  to  remove  the  injury  of  the 
Community  industry.  As  the  existing  duties  for  Belarus  had  been  calculated  on  the 
basis  of  the  dumping  margin,  and  as  the  new  dumping  margin  is  lower  than  the  one 
previously calculated, the duty should be adjusted to the lower dumping margin found 
in this investigation, namely 27,5%. 

H. 

UNDERTAKING 

(161)  Following the disclosure of the definitive findings, the exporting producer in Belarus 

offered a price undertaking. 

(162)  It  is  the  normal  practice  of  the  Commission  not  to  accept  undertakings  from 
companies  not  fulfilling  the  criteria  for  market  economy  treatment  or  individual 
treatment  as  undertakings  from  such  companies  is  considered  impractical.  This 
notwithstanding,  under  particular  circumstances,  undertakings  may  be  accepted  from 
such companies. These circumstances would require, in particular, involvement from 
the  State  authorities  in  the  exporting  country  in  assuring  that  the  conditions  of  the 
undertaking are respected. 

(163)  A crucial factor in accepting any undertaking is that it has to satisfy the relationship of 
trust  between  the  Community  and  the  parties  to  the  undertaking.  In  this  regard,  it 
should  be  recalled  that  the  Council  has  imposed  certain  restrictive  measures  against 
President  Lukashenko  and  certain  officials  of  Belarus  by  Common  Position 

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36 

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2006/276/CFSP12  and  Council  Regulation  (EC)  No  765/200613.  It  should  also  be 
recalled  that  Belaruskali  is  a  fully  State  owned  company  and  therefore  the  current 
authorities  have  a  direct  and  decisive  influence  over  the  operations  of  the  company. 
Therefore,  as  the  Commission  was  not  able  to  satisfy  itself  that  there  existed  a 
relationship of trust between the Community and all the parties to the undertaking, it 
was  concluded  that  the  undertaking  offer  by  Belaruskali  was  impracticable. 
Consequently, the offer was rejected. 

G. 

PROPOSED DUTIES 

(164)  In view of the conclusions reached with regard to continuation of dumping, likelihood 
of  recurrence  of  injury  and  Community  interest,  measures  on  imports  from  Belarus 
and Russia should be imposed in order to prevent a recurrence of injury being caused 
to the Community industry by the dumped imports. 

1.  Russia 

(165)  In view of the findings above and pursuant to Article 11(2) of the basic Regulation, the 
measures on imports of potassium chloride originating in Russia imposed by Council 
Regulation  (EEC)  No  3068/92,  as  last  amended  by  Council  Regulation  (EC)  No 
1891/2005, should be maintained.  

(166)  Undertakings offered by the two Russian producers were accepted in the framework of 
the  partial  interim  reviews  that  were  concluded  by  Council  Regulation  (EC)  No 
1891/2005.  

2. 

Belarus 

(167)  In view of the findings above and pursuant to Article 11(3) of the basic Regulation, the 
measures on imports of potassium chloride originating in Belarus should be modified. 
The  existing  measures  for  Belarus  comprise  of  fixed  amounts  ranging  from  EUR 
19,51/tonne  to  EUR  48,19/tonne,  depending  on  the  product  type.  During  the  current 
investigation period, however, it was found that all the exports to the Community by 
Belaruskali were limited to product types falling under two CN codes. Accordingly, in 
view of information on the other product types, and as the particular types of potash 
concerned  appear  to  be  the  most  commercialised,  the  most  reasonable  approach  for 
implementing  the  amended  duties  is  considered  to  be  the  replacement  of  all  fixed 
amounts  with  an  ad  valorem  duty  or  a  minimum  import  price,  based  on  the  market 
conditions prevailing on the potash market during the IP. 

(168)  Since  the  dumping  level  found  is  lower  than  the  injury  margin  established  in  the 
previous  investigation,  the  ad  valorem  duty  rate  should  be  set  at  the  dumping  level 
which is 27,5%. 

(169)  In view of the special market conditions prevailing on the potash market, namely the 
increase of export prices of the product concerned between 2003 and the IP, increase 
which actually continued in 2005 and 2006, it was considered appropriate to impose 
measures  in  the  form  of  a  minimum  import  price  (“MIP”)  (i)  based  on  the  findings 

12 
13 

OJ L 101, 11.4.2006, p. 5. 
OJ L 134, 20.5.2006, p. 1. 

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37 

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established  for  the  investigation  period,  removing  the  effects  of  injurious  dumping 
found for product types falling under CN codes 3104 20 50 (TARIC codes 3104 20 50 
10 and 3104 20 50 90) and 3104 20 90 (TARIC code 3104 20 90 00) imported into the 
Community during the IP, which represented the most voluminous product types that 
are the likely to be imported into the Community also during the period covered by the 
extended measures, and (ii) in view of the risk of circumvention of the measure linked 
to  the  particular  circumstances  described  in  recital  (163)  above,  up  to  a  quantitative 
ceiling  beyond  which  an  ad  valorem  duty  of  27,5%  should  apply.  The  same  ad 
valorem duty should also apply to imports falling within the quantitative ceiling if the 
minimum import price is not respected or when the imports of the product subject to 
measures  presented  for  release  into  free  circulation  fall  under  those  CN  codes,  for 
which no minimum import price is applicable (i.e. CN codes 3104 20 10, ex 3105 20 
10 (TARIC codes 3105 20 10 10 and 3105 20 10 20), ex 3105 20 90 (TARIC codes 
3105 20 90 10 and 3105 20 90 20), ex 3105 60 90 (TARIC 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).)  Consequently,  a 
quantitative  ceiling  should  be  established  by  reference  to  the  recent  export 
performance during the year 2005 of the Belarusian exporter to the Community, as this 
is an export quantity that may be attainable by the exporter without having recourse to 
circumvention  of  the  MIP.  On  this  basis,  a  quantitative  ceiling  for  the  minimum 
import  price  should  be  established  at  700  000  tonnes  per  year  of  goods  released  for 
free circulation. 

(170)  In order to take into account the fact that the products are delivered on both DAF and 
CIF  (Community  port)  terms  (as  defined  in  Incoterms  2000)  and  that  the 
transportation,  handling  and  loading  costs  included  in  the  invoiced  prices  have 
significant differences depending on whether the transportation takes place by ground 
transportation  to  a  land  frontier  of  the  Community  (on  DAF  terms)  or  by  maritime 
transport via seaports in third countries to a Community port (CIF (Community port) 
terms), the MIPs referring to these two delivery terms should be differentiated. 

(171)  The  Council  acknowledges  that  the  introduction  of  a  quantitative  ceiling  requires  a 
management system which cannot be put in place prior to the entry into force of this 
Regulation. In view of the complexity of this matter, the Council considers that it is 
appropriate  for  the  Commission  to  set  out  by  Regulation  the  modalities  for 
implementing  the  management  system  of  the  quantitative  ceiling  as  soon  as  it  is 
technically possible.  

(172)  The  Council  further  acknowledges  that  in  view  of  the  fact  that  the  Regulation 
changing the current form and level of the measure only enters into force in the second 
half of 2006, and that significantly increasing exports of the product concerned in the 
short term poses logistical difficulties, the risk of circumvention referred to in recital 
(169)  in  the  short  term  is  limited.  Therefore,  taken  into  account  the  technical 
difficulties referred to in recital (171) and in view of the limited risk of circumvention, 
it  is  considered  appropriate  not  to  impose  a  quantitative  ceiling  at  this  stage. 
Therefore,  the  MIPs  and  the  ad  valorem  duty  as  explained  in  recital  (169)  above 
should apply from the date of entry into force of this Regulation.  

(173)  However,  should  the  quantity  released  into  free  circulation,  as  established  by  the 
Commission  on  the  basis  of  data  collected  pursuant  to  Article  14(6)  of  the  basic 
Regulation, in any given calendar year, or for the remaining part of the year 2006 on a 

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pro  rata  temporis  basis,  significantly  exceed  the  700  000  tonnes  reflecting  the 
traditional quantities as established in recital (169) above, and for the reasons referred 
to in that recital and with reference to the particular circumstances described in recital 
(163)  above,  the  Commission  should  submit  a  proposal  to  the  Council  for  the 
imposition  of  the  ad  valorem  duty  concerning  all  products  falling  under  the  product 
definition of this investigation. 

(174)  To ensure the effective respect of the MIP, importers should be made aware that when 
it  is  found  following  a  post-importation  verification  that  (i)  the  net,  free-at-
Community-frontier  price  (i.e.  net  of  customs  duties  and  any  post-importation  costs, 
such  as  handling,  loading  and  transportation  costs)  actually  paid  by  the  first 
independent  customer  in  the  Community  (post-importation  price)  is  below  the  net, 
the  customs 
free-at-Community-frontier  price,  before  duty,  as  resulted  from 
declaration; and (ii) the post-importation price is lower than the MIP, the ad valorem 
duty  shall  apply  retrospectively  for  the  relevant  transactions.  Customs  authorities 
should inform the Commission immediately whenever indications of a misdeclaration 
are found. 

(175)  In  this  context,  reference  is  made  to  Council  Regulation  (EEC)  No  2913/92  of 
12 October  1992  establishing  the  Community  Customs  Code14,  inter  alia,  to 
Article 78,  according  to  which  the  customs  authorities  may  inspect  the  commercial 
documents and data relating to the import or export operations in respect of the goods 
concerned  or  to  subsequent  commercial  operations  involving  those  goods.  Such 
inspections  may  be  carried  out  at  the  premises  of  the  declarant,  of  any  other  person 
directly or indirectly involved in the said operations in a business capacity or of any 
other person in possession of the said document and data for business purposes,  

HAS ADOPTED THIS REGULATION: 

Article 1 

A definitive anti-dumping duty is hereby imposed on imports of potassium chloride 
falling within CN codes 3104 20 10, 3104 20 50, 3104 20 90 and on special mixtures 
(i.e.  potassium  chloride  containing  additional  fertilising  elements,  with  a  potassium 
content evaluated as K2O, by weight, equal to or exceeding 35% but not exceeding 
62% on the dry anhydrous product) falling within CN codes ex 3105 20 10 (TARIC 
codes 3105 20 10 10 and 3105 20 10 20), ex 3105 20 90 (TARIC codes 3105 20 90 
10 and 3105 20 90 20), ex 3105 60 90 (TARIC 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), originating in Belarus and Russia. 

Article 2 

The rate of the anti-dumping duty applicable to the net, free-at-Community frontier 
price,  before  duty,  of  the  product  described  in  Article  1  and  originating  in  Belarus 
shall be 27,5%. It shall be applied under the conditions set out below: 

OJ  L  302,  19.10.1992,  p.  1.  Regulation  as  last  amended  by  Regulation  (EC)  No  648/2005  of  the 
European Parliament and of the Council (OJ L 117, 4.5.2005, p. 13). 

1. 

1. 

14 

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39 

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(a)  The duty shall be levied on products falling under CN codes 3104 20 50 and 

3104 20 90 (TARIC additional code A999) except when  

- the net, free-at-Community frontier price, before duty, of the product is at or 
above the appropriate minimum import price set out in Annex I and 

- the total imported quantity of the products specified in Annex I and released 
into free circulation has not cumulatively reached 700.000 tonnes. 

The  Commission  shall  establish  the  modalities  for  implementing  the  management 
system of this quantitative ceiling by Regulation as soon as possible. 

b) 

The  duty  shall  be  levied  on  products  falling  under  CN  codes  3104  20  10,  ex 
3105 20 10 (TARIC codes 3105 20 10 10 and 3105 20 10 20), ex 3105 20 90 
(TARIC  codes  3105  20  90  10  and  3105  20  90  20),  ex  3105  60  90  (TARIC 
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).  

2. 

By  derogation  to  Article  2(1),  until  the  entry  into  force  of  the  Commission 
Regulation cited in paragraph 1, the duty shall apply as follows: 

a) 
The duty shall be levied on products falling under CN codes 3104 20 50 and 
3104 20 90 (TARIC additional code A999) except when the net, free-at-Community 
frontier  price,  before  duty,  of  the  product  is  at  or  above  the  appropriate  minimum 
import price set out in Annex I. 

The  duty  shall  be  levied  on  products  falling  under  CN  codes  3104  20  10,  ex 
b) 
3105  20  10  (TARIC  codes  3105  20  10 10  and  3105  20  10  20),  ex  3105  20  90 
(TARIC  codes  3105  20  90  10  and  3105  20  90  20),  ex  3105  60  90  (TARIC  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). 

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

Article 3 

The  rate  of  the  definitive  anti-dumping  duty  applicable  to  the  net,  free-at-
Community-frontier  price,  before  duty,  of  the  product  described  in  Article  1, 
originating  in  the  Russian  Federation  and  manufactured  by  the  companies  listed 
below shall be as follows: 

Country 

Company 

Duty Rate 

Taric Additional 
Code 

Russia 

JSC Silvinit, Solikamsk 

JSC Uralkali, Berezniki 

23,0% 

12,3% 

A665 

A666 

3. 

1. 

EN 

40 

   EN 

 
 
 
2. 

The rate of the anti-dumping duty applicable to the net, free-at-Community frontier 
price,  before  duty,  of  the  product  described  in  Article  1,  originating  in  the  Russian 
Federation  and  manufactured  by  all  other  companies  than  those  mentioned  in 
paragraph  1  (TARIC  additional  code  A999)  shall  be  equal  to  the  fixed  amount  in 
euro per tonne of KCl shown below per category and grade (standard potash is to be 
understood as potash in powder form):  

Potassium chloride not containing any additional fertilising elements: 

Category: 

With a potassium content 
evaluated as K2O, by weight, 
not exceeding 40% on the dry 
anhydrous product 

With a potassium content 
evaluated as K2O, by weight, 
exceeding 40% but not 
exceeding 62% on the dry 
anhydrous product 

With a 
potassium 
content 
evaluated as 
K2O, by 
weight, 
exceeding 
62% on the 
dry 
anhydrous 
product 

Grade 

Standard 

Other than 
standard 
(including 
granular) 

Standard 

Other than 
standard 
(including 
granular) 

TARIC code 

3104  20  10 
10  

3104  20  10 
90 

3104  20  50 
10 

3104  20  50 
90 

3104  20  90 
00 

Fixed amount 
(EUR/tonne) 

19,61 

26,01 

29,65 

39,33 

40,63 

Potassium chloride containing additional fertilising elements in special mixtures: 

With a potassium content 
evaluated as K2O, by weight, equal 
to or exceeding 35% but not 
exceeding 40% on the dry 
anhydrous product 

With a potassium content evaluated as 
K2O, by weight, exceeding 40% but 
equal to or not exceeding 62% on the 
dry anhydrous product 

TARIC code 

3105  20  10  10,  3105  20  90  10, 
3105  60  90  10,  3105  90  91  10, 
3105 90 99 10 

3105 20 10 20, 3105 20 90 20, 3105 60 
90 20, 3105 90 91 20, 3105 90 99 20 

Fixed amount 
(EUR/tonne) 

26,01 

39,33 

EN 

41 

   EN 

 
 
 
3. 

4. 

1. 

Notwithstanding Article 1 above, the definitive anti-dumping duty shall not apply to 
imports released for free circulation in accordance with Article 4. 

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

Article 4 

Imports  declared  for  release  into  free  circulation  shall  be  exempt  from  the  anti-
dumping duties imposed by Article 1, provided that they are produced by companies 
from  which  undertakings  are  accepted  by  the  Commission  and  whose  names  are 
listed  in  Commission  Decision  2005/802/EC,  as  from  time  to  time  amended,  and 
have  been  imported  in  conformity  with  the  provisions  of  the  same  Commission 
Decision. 

2. 

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

(a) 

(b) 

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

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

(c) 

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

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

Article 5  

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

Done at Brussels, 

For the Council 
The President 

EN 

42 

   EN 

 
 
 
TARIC Code 

3104 20 50 10  

3104 20 50 90  

3104 20 90 00 

*) as defined in Incoterms 2000 

ANNEX I 

Minimum Import Price (‘MIP’) in 
euro per tonne, CIF (Community 
port) (*), net, free-at-Community 
frontier, before duty, for goods 
delivered by maritime 
transportation via third country sea 
ports 

Minimum Import Price (‘MIP’) in 
euro per tonne, DAF(*), net, free-at-
Community frontier, before duty, 
for goods delivered by ground 
transportation 

114.3 (TARIC additional code A747) 

102.4 (TARIC additional code A748) 

125.8(TARIC additional code A749)  

113.0(TARIC additional code A750)  

124.1(TARIC additional code A751)  

110.3(TARIC additional code A752)  

EN 

43 

   EN 

 
ANNEX II 

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

1. 

2. 

3. 

4. 

5. 

6. 

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

The  name  of  the  company  mentioned  in  Article  1  of  Commission  Decision 
2005/802/EC issuing the commercial invoice. 

The commercial invoice number. 

The date of issue of the commercial invoice. 

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

The exact description of the goods, including: 

– 

– 

– 

– 

– 

Product Code Number (PCN) used for the purposes of the investigation and the 
undertaking (e.g. PCN 1, PCN 2, etc), 

plain language description of the goods corresponding to the PCN concerned, 

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

CN code, 

quantity (to be given in tonnes). 

7. 

The description of the terms of the sale, including: 

– 

– 

– 

– 

price per tonne, 

the applicable payment terms, 

the applicable delivery terms, 

total discounts and rebates. 

8. 

9. 

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

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

EN 

44 

   EN 

 
“I, the undersigned, certify that the sale for direct export to the European Community of the 
goods  covered  by  this  invoice  is  being  made  within  the  scope  and  under  the  terms  of  the 
undertaking  offered  by  [company],  and  accepted  by  the  European  Commission  through 
Decision 2005/802/EC. I declare that the information provided in this invoice is complete and 
correct.” 

EN 

45 

   EN