Proposal for a Council Regulation imposing definitive anti-dumping measures and releasing the provisional duty imposed on imports of certain frozen strawberries originating in the People's Republic of China
Date: 2007-03-16
Institutions: European Commission
Subjects: China, anti-dumping duty, anti-dumping legislation, frozen product, import (EU), soft fruit

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 16.3.2007 
COM(2007) 123 final 

Proposal for a 

COUNCIL REGULATION 

imposing definitive anti-dumping measures and releasing the provisional duty  
imposed on imports of certain frozen strawberries originating  
in the People's Republic of China  

(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 461/2004 
of  8  March  2004  ("the  basic  Regulation")  in  the  proceeding  concerning  imports  of 
frozen strawberries originating in the People's Republic of China. 

•  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 

There are no existing provisions in the area of the proposal. 

•  Consistency with the other policies and objectives of the Union 

Not applicable. 

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 

The  case  was  initiated  19  of  January  2006  following  a  complaint  by  Community 
industry.  The  Commission  sought  and  analysed  all  relevant  information  and  on  18 

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October  2007  provisional  anti-dumping  measures  were  imposed  as  the  requisite 
requirements on dumping, injury, causality and Community interest were fulfilled. The 
provisional measure took the form of ad valour duties ranging between 0% and 34.2%. 
Following the publication of the provisional measures the investigation in particular as 
concern the Community interest was deepened. 

It  was  found  that  the  impact  on  users  would  be  more  hard  felt  than  estimated  in  the 
provisional  regulation.  Nevertheless,  when  balancing  the  various  interests  including 
those  of  Community  industry  and  the  farmers,  it  was  concluded  that  there  were  no 
compelling  reasons  under  the  Community  interest,  not  to  impose  measures.  The 
investigation has revealed that prices of frozen strawberries went up by around 20% in 
2006  and  in  order  to  avoid  that  measures  burden  users  disproportionately  it  is 
considered  that  a  minimum  import  price,  hereafter  "MIP",  would  be  the  most 
appropriate form of measure in this case. In order to take into account the difference in 
customs tariffs applicable when importing frozen strawberries, three different MIP, one 
per CN code is proposed. The MIP is combined with an enforcement clause in the form 
of a specific duty, to be levied in case of mis-declarations. 

•  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 461/2004 of 8 March 2004  

•  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 reason(s). 

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 instrument: regulation. 

Other means would not be adequate for the following reason(s). 

The above-mentioned basic regulation does not foresee alternative options 

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4)  Budgetary implication 

The proposal has no implication for the Community budget. 

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Proposal for a 

COUNCIL REGULATION 

imposing definitive anti-dumping measures and releasing the provisional duty  
imposed on imports of certain frozen strawberries originating  
in the People's Republic of China  

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community,  

Having  regard  to  Council  Regulation  (RC)  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 Articles 9 and 10(2) thereof, 

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

Whereas: 

A. 

1. 

(1) 

PROCEDURE 

Provisional Measures 

On  18  October  2006,  the  Commission  imposed,  by  Regulation  (EC)  No  1551/20062 
(‘the provisional Regulation’), a provisional anti-dumping duty on imports of certain 
frozen strawberries originating in the People's Republic of China (‘PRC’). 

2. 

Subsequent procedure 

(2) 

(3) 

Following  the  imposition  of  a  provisional  anti-dumping  duty  on  imports  of  certain 
frozen  strawberries  from  the  PRC,  all  parties  received  a  disclosure  of  the  facts  and 
considerations  on  which  the  provisional  Regulation  was  based.  All  parties  were 
granted  a  period  within  which  they  could  make  representations  in  relation  to  these 
disclosures.  

Some  interested  parties  submitted  comments  in  writing.  Those  parties  who  so 
requested were also granted an opportunity to be heard orally. The Commission sought 
and  verified  all  information  it  deemed  necessary.  The  oral  and  written  comments 
submitted  by  the  parties  were  examined,  and,  where  considered  appropriate,  the 
provisional findings were modified accordingly. 

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2 

OJ  L  56,  6.3.1996,  p.  1  Regulation  as  last  amended  by  Regulation  (EC)  No  2117/2005  (OJ  L  340, 
23.12.2005 
OJ L 287, 18.10.2006, P. 3 

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(4) 

All  interested  parties  were  informed  of  the  essential  facts  and  considerations  on  the 
basis  of  which  it  was  intended  to  impose  definitive  measures  and  to  release  the 
amounts  secured  by  way  of  the  provisional  anti-dumping  duty  imposed  by 
Commission  Regulation  (EC)  No  1551/2006  (the  final  disclosure).  The  interested 
parties  were  also  granted  a  period  within  which  they  could  make  representations 
subsequent to this disclosure. The oral and written comments submitted by the parties 
were considered and, where appropriate, the findings have been modified accordingly. 

3. 

Parties concerned by the proceeding 

(5) 

The  Commission  continued  to  seek  all  information  it  deemed  necessary  for  the 
purpose of its definitive findings. In addition to the verification visits undertaken at the 
premises  of  the  companies  mentioned  in  recital  (8)  of  the  provisional  Regulation,  it 
should  be  noted  that  after  the  imposition  of  provisional  measures,  additional  on-spot 
visits  were  carried  out  at  the  premises  of  the  following  Community  users  and 
importers:  

Importers/traders 

–   

–   

BS Foods BV, Gennep, The Netherlands 

Skogsmat AB, Karlstad, Sweden 

Users/processors 

–   

–   

–   

–   

Agrana Frucht GmbH & Co KG, Gleisdorf, Austria  

Agrana, S.A. Neuilly sur Seine, France  

Dairy Fruits A/S, Odense, Denmark 

Groupe Danone, Paris, France 

–    Materne S.A.S., Limonest, France 

–   

–   

–   

Rudolf Wild GmbH & Co. KG, Eppelheim, Germany 

Schwartauer Werke GmbH & Co KGaA, Bad Schwartau, Germany 

Yoplait France S.A.S., Boulogne, France 

4. 

Investigation period (IP) 

(6) 

(7) 

It  is  recalled  that  the  investigation  period  of  dumping  and  injury  (‘IP’)  covered  the 
period from 1 January 2005 to 31 December 2005. The examination of trends relevant 
for  the  injury  analysis  covered  the  period  from  1  January  2002  to  the  end  of  the  IP 
(‘period considered’). 

One  interested  party  has  questioned  the  appropriateness  of  the  chosen  investigation 
period claiming that the year 2005 was not representative as import prices in this year 
were abnormally low. However, the selection of the IP was made in accordance with 
Article 6(1) of the basic Regulation which provides that the IP should normally cover 

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a  period  of  not  less  than  six  months  immediately  prior  to  the  initiation  of  the 
proceeding.  Thus,  any  alleged  particularities  concerning  the  year  2005  were  not 
reflected in the choice of the IP, but were examined in the causality analysis. 

(8) 

Based  on  the  above,  the  investigation  period  ('IP')  as  detailed  recital  (11)  of  the 
provisional Regulation is hereby confirmed. 

5. 

Product concerned and like product 

(9) 

It is recalled that, in recital (13) of the provisional Regulation, the product concerned 
was  defined  as  strawberries,  uncooked  or  cooked  by  steaming  or  boiling  in  water, 
frozen, whether or not containing added sugar or other sweeteners, originating in the 
People’s Republic of China currently classifiable within CN codes 0811 10 11, 0811 
10 19 and 0811 10 90. 

(10)  Some interested parties have maintained that there are significant differences in terms 
of use and quality between different types of frozen  strawberries. It  was claimed for 
the  same  reason  that  frozen  strawberries  of  Chinese  origin  were  not  comparable  to 
those produced by the Community industry. 

(11) 

In  recital  (15)  of  the  provisional  Regulation,  it  was  stated  that  the  investigation  has 
shown  that  despite  differences  in  varieties,  quality,  size  and  post-processing,  the 
different types of the product concerned, as well as the frozen strawberries produced 
and  sold  on  the  Community  market  by  the  Community  industry,  all  share  the  same 
basic  physical  and  biological  characteristics  and  are  basically  used  for  the  same 
purposes.  They  were  therefore  considered  to  constitute  one  single  product.  As  those 
interested  parties  did  not  provide  any  additional  evidence  to  substantiate  their  claim 
and no new facts came to light, this claim is rejected. 

(12) 

In the absence of any further comments regarding the product definition and the like 
product,  the  contents  and  provisional  conclusions  of  recitals  (12)  to  (16)  of  the 
provisional Regulation are hereby confirmed. 

B. 

1. 

DUMPING 

Market Economy Treatment 

(13)  No  comment  was  received  that  was  apt  to  alter  the  findings  on  market  economy 
treatment.  Therefore,  the  findings  set  out  in  recitals  (17)  to  (26)  of  the  provisional 
Regulation are confirmed. 

2. 

Individual Treatment 

(14)  The three exporting producers that were denied individual treatment ('IT') argued that 
this decision should be reviewed. It is recalled that the three companies in question did 
not meet criterion (b) and (e) under Article 9(5) of the basic Regulation. Criterion (b) 
requires that export prices and quantities, and conditions of sale are freely determined. 
Criterion (e) requires that state interference is not such as to permit circumvention of 
measures if individual exporters are given individual rates of duty. 

(15)  None of the arguments raised by the three companies in question were apt to alter the 
decision taken at the provisional stage. In particular, it was found that the companies 

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concerned were exposed to state interference which limited them in freely determining 
export quantities (criterion (b)). 

(16)  Furthermore,  state  interference  also  prevailed  to  a  degree  which  would  make 
circumvention of measures likely if individual exporters were given individual rates of 
duty (criterion (e)). 

(17) 

In the absence of any further comments relating to the findings on IT, the findings set 
out in recitals (27) and (28) of the provisional Regulation are confirmed. 

3. 

Normal Value 

(18)  After publication of the provisional measures, no comment was received that was apt 
to alter the decision to use Turkey as an analogue country. The decision is therefore 
confirmed. It is recalled that for the purpose of establishing normal value, the domestic 
prices of Turkish strawberries had been adjusted to take account of their better quality 
in  comparison  with  Chinese  strawberries  (see  recitals  39  and  44  of  the  provisional 
Regulation). 

(19) 

In the absence of any further comments relating to the findings on normal value, the 
findings set out in recitals (29) to (42) of the provisional Regulation are confirmed. 

4. 

Export Price 

(20) 

In the absence of any comments relating to the findings on export price, the findings 
set out in recital (43) of the provisional Regulation are confirmed. 

5. 

Comparison 

(21)  Reference is made to recital (44) of the provisional Regulation. In the absence of any 
comments  that  were  apt  to  alter  the  findings  stated  in  that  recital,  the  provisional 
findings are hereby confirmed. 

6. 

Dumping margin 

(22) 

In  the  light  of  the  above,  the  dumping  margins  finally  determined,  expressed  as  a 
percentage of the CIF Community frontier price, duty unpaid, are as follows: 

Yantai Yongchang Foodstuff 0% 

Dandong Junao Foodstuff 

31.1% 

All other companies  66.9% 

C. 

1. 

(23) 

INJURY 

Community production 

In  the  absence  of  any  comments  submitted,  the  provisional  findings  concerning  the 
total Community production as set out in recital (51) of the provisional Regulation are 
hereby confirmed. 

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2. 

Definition of the Community industry 

(24) 

In  the  absence  of  any  comments,  the  definition  of  Community  industry  as  set  out  in 
recitals (52) and (53) of the provisional Regulation is hereby confirmed. 

3. 

Sampling for injury assessment purposes 

(25) 

(26) 

It is recalled that in view of the large number of producers of frozen strawberries in the 
Community, a sample of eight producers was chosen for the assessment of injury. One 
interested  party  claimed  that  the  sample  of  Community  producers  was  not 
representative  because  all  selected  Community  producers  were  located  in  Poland.  It 
was held that a sample based on the largest production volume should also take into 
account the geographical location of producers in order to be representative. 

It  should  be  recalled  that  recital  (54)  of  the  provisional  Regulation  outlines  that  the 
selection  of  the  sample  was  made  in  accordance  with  Article  17(1)  of  the  basic 
Regulation  which  provides  that  a  sample  can  be  chosen  based  on  the  largest 
representative  volume  of  production  that  can  reasonably  be  investigated  within  the 
time available.  

(27)  Thus, a selection of a sample based on this method would have to primarily take into 
account the representativity in terms of production volume. It is not required that the 
sample also covers a certain geographical representation; this could, but clearly does 
not have to be, an ancillary consideration. 

(28)  Furthermore,  since  the  production  of  frozen  strawberries  is  to  a  great  extent 
concentrated  in  Poland,  not  only  in  terms  of  volume  but  also  in  terms  of  number  of 
producers, a consideration of the geographical location would in this case not prevent 
the  selection  of  a  sample  consisting  of  only  Polish  producers.  This  argument  is 
therefore dismissed. 

(29) 

In  the  absence  of  any  further  comments,  the  selection  of  the  sample  for  injury 
purposes  as  set  out  in  recitals  (54)  and  (55)  of  the  provisional  Regulation  is  hereby 
confirmed. 

4. 

Community consumption 

(30) 

In the absence of any comments, the calculation of Community consumption as set out 
in recitals (56) to (59) of the provisional Regulation is hereby confirmed. 

5. 

Imports into the Community from the countries concerned 

5.1.  Volume and market share of the imports concerned 

(31) 

In  the  absence  of  any  comments,  the  calculation  of  volume  and  market  share  of  the 
imports concerned as set out in recitals (60) and (61) of the provisional Regulation is 
hereby confirmed. 

5.2. 

Prices of imports and undercutting 

(32)  One  party  claimed  that  for  the  purpose  of  the  undercutting  analysis,  an  adjustment 
would  have  to  be  made  taking  into  account  the  qualitative  differences  between  the 

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frozen  strawberries  produced  by  the  Community  industry  and  those  of  the  exporting 
producers.  However,  it  was  noted  that,  at  the  provisional  stage,  only  certain  sales 
transactions  of  the  exporting  producers  were  taken  into  account  in  the  calculation  of 
undercutting  and  underselling.  Sales  of  low  grade  exports  were  disregarded  because 
such low quality products were not produced and sold by the Community industry. In 
these circumstances, the adjustment claimed was not warranted. In the absence of any 
further  comments,  the  prices  of  the  imports  concerned  and  the  price  undercutting 
findings  as  set  out  in  recitals  (62)  to  (64)  of  the  provisional  Regulation  are  hereby 
confirmed. 

6. 

Situation of the Community industry 

(33) 

It  was  claimed  by  some  interested  parties  that  the  Community  industry  prices 
increased in 2006 to around EUR 1000 per tonne and that this should be reflected in 
the  injury  analysis.  However,  it  should  be  recalled  that  the  IP  covered  the  period  1 
January 2005 to 31 December 2005 and that the period for which trends relevant for 
the assessment of injury be examined, covered the period from 1 January 2002 until 
the end of the IP. In these circumstances, price movements after the IP have not been 
taken  into  account  in  the  injury  analysis,  in  accordance  with  the  last  sentence  of 
Article 6(1) of the basic Regulation. The significance of the increase in prices in 2006 
is however considered below, in section D. Causation (recitals (51)-(54)). 

(34)  No  interested  party  questioned  the  figures  or  their  interpretation  relating  to  the 
situation  of  the  Community  industry  as  presented  in  recitals  (66)  to  (85)  of  the 
provisional  Regulation.  Therefore,  the  findings  as  set  out  in  these  recitals  of  the 
provisional Regulation are hereby confirmed. 

6.1.  Data of Community production as a whole 

(35)  No  interested  party  questioned  the  figures  or  their  interpretation  relating  to  the 
macroeconomic data of Community production as a whole presented in recitals (86) to 
(88) of the provisional Regulation. Therefore, the findings as set out in these recitals of 
the provisional Regulation are hereby confirmed. 

7. 

Conclusion on injury 

(36) 

In  view  of  the  above,  it  is  confirmed  that  the  Community  industry  has  suffered 
material injury within the meaning of Article 3 of the basic Regulation. 

D. 

1. 

CAUSATION 

Comments by the interested parties  

(37)  Following  the  imposition  of  provisional  measures,  various  interested  parties  claimed 
that  the  material  injury  suffered  by  the  Community  industry  was  caused  by  other 
factors. A number of these claims had already been duly addressed in the provisional 
Regulation. Any new arguments are considered, where necessary, below. 

2. 

Impact of imports from third countries 

(38) 

It was claimed that no sufficient consideration was given to imports from Morocco as 
a cause of injury. One party questioned the interpretation of the figures under recital 

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(99) of the provisional Regulation, indicating that the Moroccan price charged during 
the IP was lower than the Community industry break-even price. It was held that this 
had contributed to the injury.  

(39) 

It  is  recalled  that  the  table  contained  in  recital  (99)  of  the  provisional  Regulation 
demonstrates  that  the  Moroccan  price  was  consistently  much  higher  than  that  of  the 
Community  industry.  Moroccan  exporters  were  also  affected  by  the  low  priced 
Chinese  exports  and  had  to  respond  by  reducing  prices  charged  to  the  Community. 
This  is  confirmed  by  the  decreasing  volumes  of  imports  of  frozen  strawberries 
originating in Morocco. This argument therefore had to be rejected 

3. 

Impact of currency fluctuations 

(40)  During  the  IP,  the  Zloty  depreciated  against  the  Euro.  It  was  claimed  by  some 
interested  parties  that  the  price  decrease  suffered  by  the  Community  industry  would 
appear  less  dramatic  if  calculations  were  analysed  in  Zloty  rather  than  in  Euros. 
Between  2004  and  2005,  the  Zloty  did  indeed  fluctuate  by  around  10%.  However, 
when  assessing  the  trends  of  Community  prices  between  these  two  years,  the  price 
decrease in Euro was 35 %. 

(41)  Taking into account the difference between the fluctuation of the currency of around 
10%  and  the  price  decrease  which  amounted  to  35%,  the  depreciation  of  the  Zloty 
against the Euro cannot be considered as a major cause of the decrease in Community 
industry prices. This argument therefore had to be rejected. 

Impact  of  alleged  structural  deficiencies  or  speculative  business  decisions  by  the 

4. 
Community industry 

(42)  Some  interested  parties  further  developed  the  argument  already  addressed  in  the 
provisional Regulation in recitals (106) to (110), that injury was self-inflicted due to 
poor  business  decisions  and  structural  difficulties  encountered  by  the  Community 
industry. To this end, a report from the Commission to the Council and the European 
Parliament  on  the  situation  of  the  sector  of  soft  fruits  and  cherries  intended  for 
processing  and  annexed  staff  working  document  on  the  same  subject3  as  well  as  a 
European Parliament resolution on the situation with regard to soft fruits and cherries 
intended  for  processing  adopted  on  12  October  20064,  were  held  to  support  these 
claims. 

(43) 

It  should  be  noted  that  the  Commission  took  account  of  the  report  in  its  provisional 
findings  as  evidenced  by  the  reference  in  recital  138  of  the  provisional  Regulation. 
While  the  report  and  the  resolution  provide  important  background  information  about 
the red fruit sector within the Community, it should be noted that they both focus on 
the  problems  facing  the  growers  of  fresh  strawberries  rather  then  the  Community 
industry  (freezers).  In  any  event,  neither  the  report  nor  the  resolution  concludes  that 

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Report  of  28  June  2006  from  the  Commission  to  the  Council  and  the  European  Parliament  on  the 
situation  of  the  sector  of  soft  fruits  and  cherries  intended  for  processing  (COM(2006)0345),  and 
annexed Commission staff working document, 'Review of the sector of soft fruits and cherries intended 
for processing in the EU' (SEC(2006) 838) 
Text adopted at the sitting of 12 October 2006, part 2 Provisional Edition, P-6 TA PROV(2006) 10-12, 
PE 378/421, p 69 

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the problems facing the Community industry are due to structural deficiencies of the 
Community industry itself. 

(44) 

It was further claimed that Poland's accession to the EU has resulted in the relocation 
of  Polish  labour  to  countries  with  higher  wages  thus  posing  additional  problems  for 
the industry in the form of increased labour costs on the domestic market. It was also 
held  that  as  a  result  of  new  border  restrictions,  the  Community  industry  could  no 
longer rely on cheaper labour from neighbouring non-EU countries. It was suggested 
that  these  developments  have  had  significant  negative  effects  upon  such  a  labour 
intensive industry.  

(45)  These developments could have led to an increase of the labour costs of the farmers. 
However, this possible increase relates directly to the costs of the farmers and not to 
the costs of the Community industry (freezers). Therefore, there is only a partial link 
between the increased costs of the farmers and the costs of the Community industry. 
Moreover according to the Commission report and staff paper as referred to in recital 
(42),  it would appear that  despite a rise in the cost of production, the sales prices of 
fresh strawberries decreased rather than increased after the accession of Poland to the 
European  Union.  Considering  that  the  sales  prices  went  down,  there  could  not  have 
been an effect on the Community industry of the increase in costs facing the farmers of 
fresh strawberries. This argument therefore has to be rejected. 

(46)  One party claimed that the investments and restructuring executed by the Community 
industry  in  order  to  improve  efficiency  has  negatively  affected  its  profitability  and 
cash  flow.  However,  any  costs  encountered  by  the  Community  industry  in  terms  of 
investments  do  not  alter  the  fact  that  prices  fell  significantly  to  an  injurious  level 
during the IP and that it was the low prices that had by far the greatest impact on the 
profitability of the Community industry. Indeed, the investments made contributed to 
greater  efficiency  by  the  Community  industry,  as  stated  in  recital  (81)  of  the 
provisional Regulation. This argument therefore has to be rejected. 

(47) 

It  was  additionally  claimed  that  the  injury  suffered  by  the  Community  industry  was 
self  inflicted  because  the  quality  of  the  produce  was  lower  than  that  originating  in 
Spain  and  California.  To  this  end,  it  should  be  noted  that  Spain  and  California  both 
produce  predominantly  for  the  fresh  market  and  that  there  have  been  no  indications 
showing  that  the  Community  industry  has  lost  market  share  by  comparison  to  these 
producers.  Imports  of  frozen  strawberries  from  the  US  were  less  than  200  tonnes 
during the IP and could not have had any substantial impact on the profitability of the 
Community industry. This argument therefore has to be rejected.  

(48) 

In any event, regarding the alleged structural deficiencies of the Community industry, 
there is no evidence demonstrating such deficiencies on the part of that industry. These 
claims  must  therefore  be  rejected.  The  conclusions  reached  in  recitals  106  to  110  of 
the provisional Regulation are hereby confirmed. 

5. 

Self-inflicted injury as a result of the price levels set by the Community industry 

(49) 

In  the  context  of  the  allegation  of  speculative  business  decisions  on  behalf  of  the 
Community  industry,  as  referred  to  in  recital  108  and  110  of  the  provisional 
Regulation, one user claimed that prices on the Community market were not set by the 
Chinese  imports  but  predominantly  by  the  Community  industry  holding  the  highest 

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market  share.  This  party  thus  alleged  that  the  price  decreasing  trend  was  set  by  the 
Community industry itself and not by any dumped Chinese imports. 

(50) 

It is clear that the Community industry retained a market share in the IP of 59%, thus 
maintaining  a  significant  role  as  regards  market  prices.  However,  even  if  the 
Community  industry's  market  share  was  high,  it  cannot  be  denied  that  low  priced 
imports  from  the  PRC  that  undercut  the  Community  industry's  prices  by  6%,  had  a 
negative  impact  on  the  market  prices.  Those  dumped  imports  exerted  an  overall 
downward  price  pressure  on  prices  within  the  Community  and  also  managed  to 
considerably  increase  their  market  share  from  4%  in  2002  to  20%  in  the  IP.  The 
argument therefore has to be rejected. 

6. 

The cyclical nature of frozen strawberries and the impact of the size of the harvest 

(51)  Frozen  strawberries  are  a  sensitive  agricultural  product  and  the  investigation  has 
shown that the availability of fresh strawberries is of major importance to the price of 
frozen strawberries. Several interested parties argued that the particularly poor harvest 
in 2003 was a major cause of the injury found during the IP. Some interested parties 
also asserted that the price of strawberries typically follows a four year cycle whereby 
a  price  increase  leads  to  overproduction  and  then  to  a  price  collapse.  It  was  claimed 
that  2005  marked  the  low  point  in  this  cycle  and  that  the  particularly  low  prices 
experienced in that year were a result of this natural fluctuation. Price variations could 
also be observed for a period before 2002 and this argument was further supported by 
the +/-20% increase in price that was seen in 2006, i.e. the year following the IP.  

(52)  Further  analysis  of  prices  of  frozen  strawberries  beyond  the  period  concerned  did 
indicate that price fluctuations also occurred over a significant period of time prior to 
2002. For example, during the campaign in 2001, the abundant harvest led to very low 
prices. These low prices then led to a decrease in production of fresh strawberries in 
the following years, allowing prices to stabilise themselves again. An analysis of the 
trends supports claims that prices of the product concerned follow a cyclical pattern, 
strongly influenced by the weather and crop size.  

(53) 

It must however be recalled that the volume of imports from China increased by 380% 
at  prices  that  decreased  by  38%  during  the  period  considered  and  that  this  had  a 
significant  effect  on  the  financial  situation  of  Community  industry  that  reported 
unsustainable losses. 

(54)  Even though the natural fluctuation in prices of frozen strawberries and the impact of 
the  harvest  size  have  certainly  had  a  significant  impact  on  the  prices  of  Community 
industry, they cannot in themselves be considered the sole or major significant cause 
of the injury suffered by Community industry.  

7. 

Conclusion on causation 

(55)  As concluded in recitals (97) and (98) of the provisional Regulation the investigation 
has shown that there was a causal link between the dumped imports from the PRC and 
the injury observed with the Community industry.  

(56)  The  investigation  has  also  shown  that  there  is  a  correlation  between  prices  of  the 
Community  industry  and  the  price  fluctuations  linked  to  the  cyclical  nature  as  well 

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seasonal  variations  in  the  harvest.  This  conclusion  is  supported  by  data  from  before 
and during the period considered, as well as by the development after the IP.  

(57)  Even  though  these  cyclical  variations  may  have  aggravated  the  financial  situation  of 
the  Community  industry,  the  magnitude  in  the  fall  in  prices  of  the  Community 
industry, and the negative trend seen in the analysis of the situation of the Community 
industry  as  described  in  recital  (66)  to  (85)  of  the  provisional  Regulation,  cannot  be 
solely attributed to the 'natural fluctuation patterns'. The analysis of the impact of the 
cyclical nature of the product and the size of the harvest does therefore not support the 
argument that these factors would have been significant enough as to breach the causal 
link between the dumped imports and the injury suffered by the Community industry.  

(58)  On the  basis  of  the above, and in the absence of any further comments in respect to 
causation,  the  conclusions  reached  in  Recitals  (113)  to  (114)  of  the  provisional 
Regulation are confirmed. 

E. 

1. 

(59) 

COMMUNITY INTEREST 

General considerations 

It  has  been  analysed  whether,  in  light  of  the  comments  and  additional  elements 
provided  by  interested  parties  following  the  imposition  of  provisional  measures,  the 
provisional  conclusion  that  the  imposition  of  measures  was  not  contrary  to  the 
Community interest remained valid. As at the provisional stage, the determination of 
the  Community  interest  was  based  on  an  appreciation  of  all  the  different  interests 
involved,  i.e.  those  of  the  Community  industry,  importers,  processors/users  and 
farmers. 

(60)  The Commission indeed contacted a significant number of interested parties to obtain 
their  views.  In  addition  to  the  Community  industry,  representatives  of  all  the  major 
user brands on the market as well as associations representing the interests of the users 
have been heard and additional on spot verifications have been carried out.  

2. 

Interest of the Community industry and the upstream industry 

(61)  At  the  preliminary  stage,  the  investigation  showed  that  Community  production  was 
manufactured by a large number of producers in the freezing industry which employs 
around 2 700 people for the production and sales of the product concerned. There is 
also  a  partial  link  between  the  situation  of  the  freezer  industry  and  the  farmers 
supplying strawberries given that the latter grow only the type of strawberries destined 
for freezing and that the freezers constitute the only market for that product. 

(62) 

It  is  recalled  that  the  Community  producers  suffered  substantial  injury  in  the  period 
considered  and  reported  losses  of  12.5%  as  a  consequence  of  the  dumped  imports. 
These  losses  were  reported  despite  the  fact  that  the  Community  industry  reduced  its 
costs by reducing the prices that it paid for to the farmers for fresh strawberries. The 
price  paid  for  the  fresh  strawberries  was  below  the  farmers´  cost  of  production  and-
would therefore be unsustainable both for the farmers and the Community industry in 
the  long  run.  Should  prices  of  frozen  strawberries  again  drop  to  below  the  non-
injurious level the consequences would be two fold. Community industry would suffer 
financial losses but would also risk running out of supply of fresh strawberries in the 

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long term since the prices they would be able to pay the farmers would be so low that 
farmers would risk going out of business. It is recalled that the estimated number of 
commercial producers of fresh strawberries in Poland as 96.700 in 2002 out of which 
around  80  000  were  involved  in  the  growing  of  strawberries  for  further  processing. 
Although  it  is  possible  that  this  number  has  decreased  as  a  consequence  of 
consolidation of the sector it is nevertheless clear that the farming of strawberries is an 
important economic activity for a large number of farms in Poland. is been argued that 
the  sector  for  growing  strawberries  in  Poland  is  of  key  importance  to  a  number  of 
regions in the country that are otherwise characterised by high unemployment and that 
the  failure  to  impose  measures  would  bring  these  unemployment  figures  up  even 
higher. It has also been held that these farmers cannot switch to other more profitable 
crops  since  the  soil  conditions  in  these  areas  are  mainly  suitable  for  strawberry 
farming. 

(63)  As stated in the provisional Regulation (recital 139), prices paid to the farmers from 
2004 and onwards have been so low that the cost of production has not been covered.  

(64) 

In  addition,  as  supported  by  the  report  from  the  Commission  to  the  Council  and  the 
European Parliament on the situation of the sector of soft fruits and cherries intended 
for processing and annexed staff working document on the same subject5, the Polish 
strawberry  farmers  constitute  a  fragmented  industry  and  it  is  not  probable  that  they 
could  reach  out  to  markets  other  than  the  local  freezing  industry.  Consequently,  the 
deteriorating financial situation of the freezer industry would have a substantial impact 
on the farmers. The fact that after the IP market prices increased again to non-injurious 
levels and that Chinese import levels decreased, may cast some doubt on the necessity 
of  measures  to  remedy  the  situation  of  the  Community  industry  but  there  are  no 
indications  predicting  that  this  increase  would  be  of  permanent,  or  even  long-lasting 
nature.  

(65)  Under  these  circumstances  it  is  clear  that  the  Community  industry  and  the  farmers 
would  benefit  from  the  adoption  of  anti-dumping  measures  and  that  measures  could 
have a stabilizing effect on the Community market. The prices of frozen strawberries 
would not be depressed as a result of imports of strawberries originating in the PRC. 
Thus,  Community  producers  would  be  able  to  increase  their  prices  and  to  obtain  a 
reasonable  profit  margin.  This  will  in  all  likelihood  have  positive  effects  upon  the 
upstream industry. It is therefore concluded that the imposition of measures would be 
in the interest of the Community industry and the strawberry farmers. 

3. 

Interest of unrelated importers 

(66)  Further to the findings at the preliminary stage of the investigation, the Commission 
visited  two  more  importers  of  the  product  concerned.  Those  importers  import  the 
product  concerned  from  the  PRC  although  each  of  them  also  trades  strawberries 
produced in the EU, which represent between 50-60% of their respective purchases. It 
has  to  be  noted,  however,  that  trading  frozen  strawberries  only  constitutes  a  part  of 
their  business  activities  and  accounts  for  30-50%  of  their  overall  turnover.  Their 

5 

Report  of  28  June  2006  from  the  Commission  to  the  Council  and  the  European  Parliament  on  the 
situation  of  the  sector  of  soft  fruits  and  cherries  intended  for  processing  (COM(2006)0345),  and 
annexed Commission staff working document, 'Review of the sector of soft fruits and cherries intended 
for processing in the EU' (SEC(2006) 838) 

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imports from the PRC represent around 14% of all imports of the product concerned. 
The importers are therefore considered to be representative. Both importers expressed 
opposition to anti-dumping measures. The investigation has shown that, given that the 
demand for strawberries is driven by consumer preferences which will not be affected 
by the imposition of anti-dumping measures, the demand for frozen strawberries is not 
likely to change. Thus, importers are unlikely to be affected by higher prices, as they 
could continue importing the same quantities as before and would in all likelihood be 
able  to  pass  on  a  substantial  part  of  additional  costs  of  frozen  strawberries  onto  the 
users. This is confirmed by the fact that past price differences did not affect the sales 
price and profit margins of the importers as they remained fairly stable.  

(67)  The provisional conclusion drawn in the provisional Regulation, i.e. that the effects on 
the  importers  by  increased  prices  of  imports  are  not  expected  to  be  substantial,  is 
hereby confirmed. 

4. 

Interest of users and consumers 

4.1. 

Level of co-operation 

(68)  As  noted  in  recital  (127)  of  the  provisional  Regulation,  the  response  from  users  and 
processors  was  limited  at  the  outset.  In  the  preliminary  stage  of  the  proceeding  the 
Commission  encountered  difficulties  in  collecting  and  verifying  data  which  would 
substantiate  the  claims  of  the  user  industry.  After  publication  of  the  provisional 
Regulation,  the  Commission  renewed  therefore  its  efforts  to  encourage  cooperation. 
Supplementary  on-spot  verification  visits  took  place  in  the  premises  of  eight  user 
companies. Out of these, data that allowed for a meaningful impact assessment could 
be  obtained  from  five  companies.  Additional  information  and  data  were  collected. 
With  this  supplementary  information,  the  Commission  services  undertook  a  new 
analysis  of  the  potential  effects  that  the  imposition  of  measures  would  have  upon 
Community users.  

(69)  One interested party argued that this co-operation should not be considered as it was 
not submitted within the time limits set in the Notice of Initiation. In that regard, it has 
to  be  noted  that  the  co-operating  companies  made  themselves  known  and  provided 
comments on the provisional measures in accordance with the rules laid down in the 
Basic regulation. 

(70)  The information verified on-spot concerns around 9% of the overall Community level 
of consumption. In addition, the different user sectors were represented: producers of 
strawberry  preparations  used  as  input  for  other  products  (e.g.  yoghurts),  yoghurt 
producers,  and  producers  of  strawberry  jam.  Finally,  the  co-operating  associations 
represent  around  80%  of  the  Community  consumption  of  frozen  strawberries.  The 
recognition of such a level of representativity is consistent with the general practice. 
Therefore, the argument on lack of representativity had to be rejected.  

4.2.  Cost impact of measures 

(71)  The  user  industry  claimed  that  the  Commission  should  evaluate  the  impact  of 
measures  not  only  by  analysing  a  possible  price  increase  of  imported  Chinese 
strawberries.  Measures  would  have  a  broader  impact  on  the  market  including  frozen 
strawberries from other sources. 

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(72) 

Indeed, the deepened investigation has shown that measures will very likely provoke a 
more  general  price  rise,  not  limited  to  the  order  of  34.2%  (level  of  the  provisional 
duty) for Chinese strawberries. They may also be likely to lead to a price increase for 
the Community industry by about 19%, up to the calculated non-injurious level. Such 
an  overall  price  increase  would  indeed  appear  unavoidable  because,  unlike  in  other 
sectors and in view of the limitations imposed by the weather and crop results, other 
strategies  such  as  market  expansion  in  terms  of  volumes  would  appear  not  to  be  an 
option  for  the  Community  industry.  Finally,  since  the  Community  industry  and  the 
Chinese imports combined represent about 80% of Community consumption, it is very 
likely  that  other  countries  exporting  frozen  strawberries  to  the  Community  will  also 
increase their prices in order to follow the "price leaders".  

(73)  Regarding the strawberry-related activities of the users, under these circumstances the 
imposition  of  a  duty  at  the  level  set  in  the  provisional  measures  would  entail  a  cost 
increase of  inputs for the users of on average around 6%. Indeed, quite a few of the 
users would be forced into a loss making position. The conclusions have been based 
on the strawberry-related activities, as the investigation focuses on frozen strawberries 
as  the  product  concerned  and  does  not  concern  other  activities  of  the  companies 
involved. Also for the purpose of carrying out an injury and dumping analysis it has to 
be  ensured  that  like  activities  are  being  compared,  i.e.  activities  related  to  product 
under investigation.  

The 

table  below  demonstrates 

the 

impact  on 

the  costs  of 

the  verified  users:

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Company  Actual  profit 

(IP) 2005 * 

in 

Profit  as 
previous 
column  but  on 
basis 
of 
reported  actual 
increased) 
(or 
resale 
prices 
for 2006* 

of 

in 

Overall 
company 
profitability 
(2005) 

Share 
strawberries 
products 
company 
turnover 
(2005) 

Profit  on  2005 
if 
(IP)  basis 
prices 
of 
strawberries  of 
origins 
all 
increase 
in 
accordance 
with 
formula 
specified 
in 
recital  74  and 
prices 
resale 
do 
not 
change*  

the 

Company 
A 

Between  +2% 
and +4% 

Between  -  4% 
and- 6% 

Company 
B 

Between 
+1,0% 
+2,5 % 

and 

- 
Between 
1,0% and - 2,5 
% 

Between 
3,0% 
-5,0% 

-
and 

Between  25% 
and 30% 

Around 0 % 

Between  12% 
and 17% 

Between 
+2,5% 
+5,0% 

Between 
+4,0% 
+5,5% 

and 

and 

Company 
C 

Around 0 % 

Around - 1 %  Between  +2% 

and +4% 

Between 
and 10% 

5% 

Around 0 % 

Company 
D 

Company 
E 

Between 
+12,0% 
+14,0 % 

Between 
+3,0% 
+5,0% 

and 

and 

Between 
+4%.0 
+8,0 % 

Between 
4,0% 
-6,0% 

and 

-
and 

Between 
+3.0% 
+5.0 % 

Between 
7,0% 
-9,0% 

Between  10% 
and 15% 

and 

Between 
+5,0% 
+8,0% 

and 

-
and 

Between  18% 
and 23% 

Around 1 % 

*For activity related to strawberries only 

(74)  The  co-operating  producers  of  strawberry  preparations  and  jam  would  be  the  most 
affected  by  an  increase  of  strawberry-prices.  This  is  due  to  the  fact  that  the  relative 
importance  of  strawberries  in  the  jam-recipe  is  far  greater  than  that  of  the  other 
ingredients.  For  the  companies  in  question,  the  deterioration  of  their  profit  margin 
would  be  in  the  range  of  between  7  to  8  percentage  points,  which  for  two  of  them 
would trigger losses of around 5%. 

(75)  For  the  co-operating  yoghurt  producers  the  relative  importance  of  the  cost  of 
strawberries in their cost of production is less, since the cost for milk products is added 
to  the  recipe  calculation.  Nevertheless,  it  was  found  that  their  profit  margin,  on 
average, was quite low. Thus, even if the total cost for the production of given yoghurt 
only increases by 2 %, this is sufficient to turn a profit of around 1 % into a loss of 
around 1 %. 

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(76)  Consequently,  the  impact  of  measures  on  the  user  industry  in  terms  of  the  cost 
increase might be greater than estimated in the analysis leading up to the provisional 
measures However, as shown below in section 4.4, this cost impact is likely to be less 
hard felt in the long term. 

4.3. 

Inability to pass on cost increases in the distribution chain 

(77)  One  user  association  claimed  that  duties  would  damage  internationally  competitive 
Community based users of frozen strawberries. It was claimed that the duties could not 
be passed onto their customers (retailers and distributors) since many users concluded 
long  term  contracts  with  fixed  prices  with  these  customers.  These  fixed  prices  mean 
that  the  users  bear  the  risk  of  any  additional  price  rises.  Many  users  claimed  and 
provided  evidence  that  they  were  under  price  pressure  from  the  big  retailers/ 
distributors and that it was very difficult to raise their prices. It has been held that the 
contracts  between  users  and  the  retail  sector  fix  the  prices  for  periods  between  6 
months and a year. Therefore, the users claim that they would have no choice but to 
absorb the additional costs themselves. In view of the above it must be recognised that 
the users are likely to have to absorb the increase in cost, at least in the short term. The 
investigation  has  however  also  revealed  that  notwithstanding  the  negative  effect  of 
measures  on  the  profitability  for  products  incorporating  the  product  concerned,  the 
overall profitability of the user companies would remain positive for most of the users.  

(78)  To the extent that cost increases can be passed on, this may have a certain effect on 
consumer prices. Indeed fruit preparations, especially yoghurts, are part of the staple 
diet for a large segment of consumers. Strawberry flavour makes up around 20%-30% 
of  the  yoghurt  market  and  notwithstanding  the  fact  that  no  consumer  organisations 
have  made  submissions  in  this  respect,  it  cannot  be  excluded  that  a  price  increase, 
could impact on consumers, at least in the medium to long term. The same holds true 
for jams.  

4.4. 

The temporary nature of impact on users 

(79)  Under section 4.2 and 4.3 it has been demonstrated that the imposition of measures is 
likely  to  have  an  impact  on  the  cost  of  input  materials  of  the  users  and  users  have 
furthermore asserted that this cost increase will have to be borne by themselves for the 
duration of the contract with the retail sector. It could however be presumed that this 
inability  to  pass  on  an  eventual  cost  increase  is  temporary  as  the  duration  of  the 
contracts is limited in time. 

4.5 

Availability of Community industry supplies 

(80) 

It  has  been  broadly  held  by  the  users  that  the  supply  of  Polish  strawberries  of  the 
Senga sengana variety is essential to the volume as well as quality of the production of 
the  full  range  of  products  derived  from  frozen  strawberries.  Thus,  the  danger  of 
deterioration  of  the  situation  of  the  Community  industry  would  have  a  considerable 
negative  impact  upon  them.  It  cannot  be  excluded  that  in  the  situation  of  limited 
availability or unavailability of the Polish strawberries on the market, the users would 
face  serious  problems  in  finding  alternative  sources  of  supply  for  the  sorts  of 
strawberries  produced  in  Poland.  In  fact,  it  seems  highly  improbable  that  such 
alternative sources could be found as the users themselves stated that the quality found 
in Poland could not be found anywhere else. Further, it could not be excluded that in a 

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situation of reduced competition on the market the users would be anyway faced with 
the price increase.  

5. 

Conclusion on Community interest 

(81)  The  investigation  has  shown  that  not  only  the  Community  producers  employing 
around  2  700  persons  but  also  the  around  80  000  farmers  that  are  more  or  less 
dependent  on  strawberries  for  their  livelihood  would  benefit  from  the  imposition  of 
measures.  

(82)  As  detailed  in  recital  (133)  of  the  provisional  Regulation,  the  user  industry  has 
indicated that the supply of the product concerned by Community industry is essential 
in order for the users to cover their full range and provide a high quality product to the 
market The investigation has shown that the cyclical nature of the raw material for the 
Community industry, i.e. the variations in the strawberry crops has significant impact 
on prices which is confirmed by developments after the IP. Nevertheless, as detailed in 
the provisional Regulation recital (74), prices were so suppressed in the latter part of 
the period considered and the IP that the Community industry was forced to pay below 
the cost of production prices to the farmers when purchasing fresh strawberries. This 
resulted in the cessation of strawberry production amongst some of the farmers. Even 
though prices have gone up in 2006, it is clear that the supply of fresh strawberries to 
the  Community  industry,  and  in  extension  also  to  the  users  could  be  endangered 
should the low-price trend as seen in the period considered reoccur. 

(83)  The deepened investigation has indeed shown that the impact of the anti-dumping duty 
on  the  users  in  this  case  would  be  significant  The  duty  would  result  in  reduced 
profitability or even financial losses, some of them heavy, for a number of the users, 
especially since this price increase may not be transferred to the distributor/ retail level 
in  the  short  term.  These  effects  are  however  much  less  pronounced  when  looking  at 
the overall profitability of the investigated users. 

(84)  The user industry has argued that it is the existence of fixed price contracts with the 
user industry that prevents the processing industry from passing on the cost increase in 
case of measures to the retail sector. Considering that these contracts run for a limited 
period of time it must however also be presumed that the inability for the user industry 
to pass on the cost increase would only apply for a period of 6-12 months.  

(85) 

It thus appears that the imposition of definitive measures would have a material impact 
on users of frozen- strawberries but this impact is likely to be temporary in nature. In 
contrast,  the  adverse  effects  on  Community  industry  and  farmers  would  be  of  a 
substantial  and  lasting  nature  should  measures  not  be  imposed  and  the  drop  prices 
allowed to reoccur.  

(86)  Based on the above it is therefore concluded that there are no compelling reasons not 
to  impose  anti  dumping  duties  on  imports  of  frozen  strawberries  originating  in  the 
PRC. 

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F. 

1. 

(87) 

IMPOSITION OF DEFINITIVE MEASURES 

Form of the definitive measures 

In  view  of  the  definitive  conclusions  reached  with  regard  to  dumping,  injury, 
causation,  and  Community  interest,  anti-dumping  measures  should  be  imposed  in 
order  to  prevent  further  injury  to  Community  industry  resulting  from  the  dumped 
exports. 

(88)  Anti-dumping measures may take different forms. While the Commission has a large 
discretion  when  choosing  the  form  of  measures,  the  purpose  remains  to  remove  the 
effects of the injurious dumping. An ad valorem duty set in accordance with the lesser 
duty rule, ranging between 0% for the exporting producer granted MES, 12.6% for the 
exporting  producer granted IT and 34.2% for all  other companies  was  established in 
the Provisional Regulation.  

(89)  After the adoption of provisional measures, and as pointed out in rectal (51), the price 
of the product concerned on the Community market increased by +/-20%, in 2006, the 
year  following  the  investigation  period.  Given  that  the  product  concerned  is  rather 
homogeneous and in order to avoid that measures burden users disproportionately in 
these  circumstances,  it  is  considered  that  a  minimum  import  price,  hereafter  "MIP", 
would be the most appropriate form of measures in this case. Note that the purpose of 
the minimum import price is the same as that of the ad valorem duty, i.e. to remove the 
effects  of  injurious  dumping.  Under  this  form  of  duty,  no  duty  will  be  payable  for 
imports  undertaken  at  CIF  Community  border  price  that  are  equal  to  or  above  the 
minimum  import  price.  If  imports  are  undertaken  at  a  lower  price,  the  difference 
between the actual and the MIP, would become payable.  

(90)  As regards the level of the minimum import price, this has been established based on 
the same findings, notably the same margins of dumping and underselling, as set out in 
the provisional Regulation 

(91) 

In establishing the MIP, account has been taken both the dumping margins found and 
the  amounts  of  duties  necessary  to  eliminate  the  injury  sustained  by  Community 
industry 

2. 

Injury elimination level 

(92) 

In accordance with article 9(4) of the basic Regulation, the definitive duty should be 
set at the level of dumping or injury margins which ever is the lowest. A non injurious 
price or, non injurious MIP, therefore had to be established in order to apply this rule. 
This  non  injurious  MIP  was  then  compared  against  a  company  specific  non-dumped 
MIP  which  was  based  on  the  normal  value  adjusted  to  the  net  free-at-Community  –
border price.  

(93)  For the purpose of calculating the non injurious price, account had to be taken to the 
level of duties needed in order for Community industry to cover the cost of production 
and obtain a profit before tax that could reasonably be achieved by an industry of this 
type  in  the  sector  under  normal  conditions  of  competition.  In  the  absence  of  any 
comments from interested parties the same considerations as stipulated in recital (144) 
of the provisional Regulation were used to determine a profit margin of 6.5%. 

EN 

21 

   EN 

 
(94)  Frozen  strawberries  are  imported  under  three  different  codes  in  the  Combined 
Nomenclature ('CN codes') with different levels of customs duties, depending on the 
amount of added sugar or other sweetening matters contained in the imported goods. 
In order to take into account the different levels of customs duties, distinct MIPs per 
CN code had to be established. 

(95)  As established under recital 153 of the provisional Regulation, one Chinese exporting 
producer was not found to export frozen strawberries at dumped price. Subsequently, 
no anti-dumping measure will be applied on exports by that company. 

(96) 

In  all  other  cases,  the  non  injurious  MIP  of  684,20  EUR,  which  is  applicable  to  all 
Chinese  exports,  was  found  to  be  lower  than  the  respective  non  dumped  MIPs.  The 
MIP has therefore been established at the level of the non injurious MIP for all other 
exports from the PRC.  

(97)  Where  imports  are  undertaken  at  a  CIF  Community  border  price  that  is  equal  to,  or 
above  the  MIP,  no  duty  would  be  payable.  Conversely,  if  imports  are  undertaken  at 
prices below the MIP, a duty corresponding to the price actually paid and the MIP will 
be payable.  

3. 

Definitive Collection of the Provisional Duties 

(98)  The provisional duties in the form of ad valorem duties ranging between 0 and 34.2% 
for the imported product which applied during the period from 19 October 2006 shall 
be  released.  The  definitive  collection  of 
the  ad  valorem  duties  would  be 
disproportionate  to  the  removal  of  injurious  dumping  given  that  prices  during  this 
period was significantly above those of the MIP.  

4. 

Enforceability of the MIP 

(99)  A  duty  system  under  MIP  may  be  more  difficult  to  enforce  and  more  open  to  mis-
declaration of the customs value of the goods than other forms of the measure. Indeed, 
in  view  of  the  potential  risk  which  exists  for  compensatory  arrangements  in  this 
market sector, it is necessary to introduce  a double  system of measures. This double 
system is composed of a MIP and a fixed duty. In accordance with Article 9(4) of the 
basic Regulation, the fixed duty was calculated on the basis of the weighted average 
injury  margin  as  this  was  found  to  be  lower  than  the  weighted  average  dumping 
margin. 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  actually  paid  by  the  first  independent  customer  in  the 
Community (post-importation price) is below the net-free-at Community frontier price 
before  duty,  as  resulting  from  the  customs  declaration;  and  (ii)  the  post  importation 
price  is  lower  than  the  MIP,  a  fixed  duty  shall  apply  retrospectively  for  the  relevant 
transactions, unless the application of a fixed duty plus the post-importation price lead 
to  an  amount  (price  actually  paid  plus  fixed  duty)  which  remains  below  the  MIP.  In 
such case an amount of duty equivalent to the difference between the MIP and the post 
importation  price  shall  apply.  Customs  Authorities  should  inform  the  Commission 
immediately whenever indications of a mis-declaration are found. 

(100)  In this context, and in order to address the concerns raised, the Commission intends to 
put  in  place  two  specific  pillars  to  ensure  that  the  measures  continue  to  be  relevant 

EN 

22 

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whilst  also  being  fully  respected.  Firstly,  reference  is  made  to  Council  Regulation 
(EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code6, 
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. 
Those authorities may also examine the goods.  

(101)  Secondly,  in  order  to  best  guard  against  any  possible  absorption  of  the  measures, 
particularly between related companies, the Commission hereby notifies its intention 
to immediately initiate a review under Article 12(1) of the basic Regulation and may 
subject  importations  to  registration  in  accordance  with  Article  14(5)  of  the  basic 
Regulation, should any evidence of such behaviour be provided. 

(102)  The Commission will rely, inter alia, on import surveillance information provided by 
national  Customs  Authorities,  as  well  as  information  provided  by  Member  States 
pursuant to Article 14(6) of the basic Regulation. 

HAS ADOPTED THIS REGULATION: 

Article 1 

1. 
A  definitive  anti-dumping  duty  is  hereby  imposed  on  imports  of  strawberries, 
uncooked or cooked by steaming or boiling in water, frozen, whether or not containing added 
sugar or other sweeteners, originating in the People's Republic of China and falling within CN 
codes 0811 10 11, 0811 10 19 and 0811 10 90. 

The  amount  of  the  definitive  anti-dumping  duty  in  respect  of  Yantai  Yongchang 

2. 
Foodstuff shall be: 

Company 

Definitive Duty 

TARIC additional code 

Yantai Yongchang Foodstuff 

0,0% 

A779 

3. 
For all other companies, the amount of the definitive anti-dumping duty shall be the 
difference  between  the  minimum  import  price  fixed  in  paragraph  4  and  the  net  free-at-
Community-frontier price, before duty, if the latter is lower than the former. No duty shall be 
collected  where  the  net  free-at-Community-frontier  price  is  equal  to  or  higher  than  the 
corresponding minimum import price fixed in paragraph 4. 

4. 
For the purpose of paragraph 3, the minimum import price set out in column 2 in the 
table  below  shall  apply.  Where  it  is  found,  following  post-importation  verification,  that  the 
net  free-at-Community  frontier  price  actually  paid  by  the  first  independent  customer  in  the 
Community (post-importation price) is below the net free-at-Community-frontier price, before 
duty,  as  resulting  from  the  customs  declaration  and the post-importation price is lower than 

6 

OJ  L  302,  19.10.1992,  p.  1  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). 

EN 

23 

   EN 

 
                                                 
the minimum import price, the fixed anti-dumping duty set out as appropriate in column 3 or 
4 of the table below shall apply, unless the application of the fixed duty set out as appropriate 
in column 3 or 4 plus the post-importation price lead to an amount (price actually paid plus 
fixed duty) which remains below the minimum import price set out in column 2 in the table 
below. In such a case, an amount of duty equivalent to the difference between the minimum 
import price set out in column 2 in the table below and the post importation price shall apply. 
Where such fixed anti-dumping  duty  is collected retrospectively, it shall  be collected net of 
any anti-dumping duty previously paid, calculated on the basis of the minimum import price. 

CN code and 
presentation of 
strawberries 

Minimum import 
price EUR/tonne 
net product weight 

Fixed duty 
EUR/tonne net 
product weight, 
applicable to 
Dandong Junao 
Foodstuff (TARIC 
additional code 
A780) 

Fixed duty 
EUR/tonne net 
product weight, 
applicable to all 
other companies 
(TARIC additional 
code A999) 

Strawberries uncooked 
or cooked by steaming 
or boiling in water, 
frozen, containing 
added sugar or other 
sweetening matter with 
a sugar content 
exceeding 13 % by 
weight (CN 0811 10 11) 

Strawberries uncooked 
or cooked by steaming 
or boiling in water, 
frozen, containing 
added sugar or other 
sweetening matter with 
a sugar content not 
exceeding 13 % by 
weight (CN 0811 10 19) 

Strawberries uncooked 
or cooked by steaming 
or boiling in water, 
frozen, not containing 
added sugar or other 
sweetening matter (CN 
0811 10 90) 

496,8 

62,6 

169,9 

566,3 

71,3 

193,7 

598 

75,3 

204,5 

EN 

24 

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In  cases  where  goods  have  been  damaged  before  entry  into  free  circulation  and, 
5. 
therefore,  the  price  actually  paid  or  payable  is  apportioned  for  the  determination  of  the 
customs  value  pursuant  to  Article  145  of  Commission  Regulation  (EEC)  No  2454/937,  the 
amount of anti-dumping duty, calculated on the basis of paragraphs 3 and 4 above, shall be 
reduced by a percentage which corresponds to the apportioning of the price actually paid or 
payable. 

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

6. 
apply. 

Article 2 

Amounts secured by way of provisional anti-dumping duty pursuant to Regulation (EC) No 
1551/20068 on imports of strawberries, uncooked or cooked by steaming or boiling in water, 
frozen,  whether  or  not  containing  added  sugar  or  other  sweeteners  and  originating  in  the 
People’s Republic of China shall be released. 

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

Article 3 

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

Done at Brussels, 

For the Council 
The President 

7 

8 

OJ L 253, 11.10.1993, p. 1. Regulation as last amended by Regulation (EC) No 883/2005 (OJ L 148, 
11.6.2005, p. 5). 
OJ L 287, 18.10.2006, p. 3. 

EN 

25 

   EN