Proposal for a Council Regulation amending Council Regulation (EC) No 442/2007 of 19 April 2007 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Ukraine following an expiry review pursuant to Article 11(2) of Regulation (EC) No 384/96
Date: 2008-06-16
Institutions: European Commission
Subjects: Ukraine, anti-dumping duty, anti-dumping legislation, chemical salt, fertiliser, import, originating product

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Trade-2008-XXX-00-00 

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 16.6.2008 
COM(2008) 363 final 

Proposal for a 

COUNCIL REGULATION 

amending Council Regulation (EC) No 442/2007 of 19 April 2007 imposing a definitive 
anti-dumping duty on imports of ammonium nitrate originating in Ukraine following an 
expiry review pursuant to Article 11(2) of Regulation (EC) No 384/96 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

The  anti-dumping  duties  on  imports  of  ammonium  nitrate  originating,  inter  alia,  in  Ukraine 
were  imposed  on  22  January  2001  by  Regulation  (EC)  No  132/2001.  Following  an  expiry 
review initiated in January 2006 these measures were renewed at their current level for two 
years by Council Regulation (EC) No 442/2007. 

In December 2006, a partial interim review limited to dumping was initiated on request of a 
Ukrainian  exporting  producer  Open  Joint  Stock  Company  (OJSC)  Azot  Cherkassy.  The 
review was terminated by Regulation (EC) No 237/2008 without amending the anti-dumping 
measures in force. Subsequently and within the deadlines provided for in the Regulation (EC) 
No 237/2008, Open Joint Stock Company (OJSC) Azot Cherkassy submitted an undertaking 
offer which was accepted by Commission Decision. 

The  purpose  of  this  amendment  is  to  take  into  account  the  Commission  Decision  accepting 
the  undertaking  by  amending  the  Council  Regulation  (EC)  No  442/2007  of  19  April  2007 
imposing  a  definitive  anti-dumping  duty  on  imports  of  ammonium  nitrate  originating  in 
Ukraine accordingly.  

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Proposal for a 

COUNCIL REGULATION 

amending Council Regulation (EC) No 442/2007 of 19 April 2007 imposing a definitive 
anti-dumping duty on imports of ammonium nitrate originating in Ukraine following an 
expiry review pursuant to Article 11(2) of Regulation (EC) No 384/96 

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 8 thereof, 

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

Whereas: 

A. PROCEDURE 

On  22  January  2001  the  Council  imposed,  by  Regulation  (EC)  No  132/20012,  a 
definitive anti-dumping duty of EUR 33,25 per tonne on imports of ammonium nitrate 
falling  within  CN  codes  3102  30  90  and  3102  40  90  and  originating,  inter  alia,  in 
Ukraine.  Following  an  expiry  review  initiated  in  January  2006,  the  Council,  by 
Regulation (EC) No 442/20073, renewed these measures at their current level for two 
years. 

On  19  December  2006,  the  Commission  announced  by  a  notice  published  in  the 
Official  Journal  of  the  European  Union4,  the  initiation  of  a  partial  interim  review 
concerning imports into the Community of ammonium nitrate originating in Ukraine 
upon the  request  of  Open Joint Stock Company (OJSC)  Azot Cherkassy (hereinafter 
'the exporting producer'). The definitive findings and conclusions of the partial interim 
review  are  set  out  in  Council  Regulation  (EC)  No  237/2008  of  10  March  20085  by 
which  the  review  was  terminated  without  amending  the  anti-dumping  measures  in 
force. 

B. UNDERTAKING 

During  the  interim  review  the  exporting  producer  expressed  an  interest  in  offering  a 
price undertaking but failed to submit a duly substantiated offer within the deadline as 
set out in Article 8(2) of the basic Regulation. However as stated in recitals (46) and 
(47)  of  the  above  mentioned  Council  Regulation,  the  Council  considered  that  the 
exporting producer should exceptionally be allowed to complete its undertaking offer 

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 23, 25.1.2001, p. 1. 
OJ L 106, 24.4.2007, p. 1. 
OJ C 311, 19.12.2006, p. 57. 
OJ L 75, 18.03.2008. p. 8 

(1) 

(2) 

(3) 

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(4) 

(5) 

within 10 calendar days from entry into force of that Regulation due to the complexity 
of several issues, namely (1) the volatility of the price of the product concerned which 
would require some form of indexation of minimum prices, while at the same time the 
volatility  is  not  sufficiently  explained  by  the  key  cost  driver;  and  (2)  the  particular 
market situation for the product concerned. Subsequent of the publication of Council 
Regulation (EC) No 237/2008 and within the deadline as set out in that Regulation the 
exporting  producer  submitted  an  acceptable  price  undertaking  in  accordance  with 
Article 8(1) of the basic Regulation.  
The Commission by Decision [INSERT]6 accepted the undertaking offer. The Council 
recognises  that  the  undertaking  offer  eliminates  the  injurious  effect  of  dumping  and 
limits to a sufficient degree the risk of circumvention. 

To further enable the Commission and the customs authorities to effectively monitor 
the compliance of the company with the undertaking, when the request for release for 
free  circulation  is  presented  to  the  relevant  customs  authority,  exemption  from  the 
anti-dumping  duty  is  to  be  conditional  on  (i)  the  presentation  of  an  undertaking 
invoice, which is a commercial invoice containing at least the elements listed and the 
declaration stipulated in the Annex; (ii) the fact that imported goods are manufactured, 
shipped  and  invoiced  directly  by  the  exporting  producer  to  the  first  independent 
customer in the Community; and (iii) the fact that the goods declared and presented to 
customs correspond precisely to the description on the undertaking invoice. Where the 
above  conditions  are  not  met  the  appropriate  anti-dumping  duty  shall  be  incurred  at 
the time of acceptance of the declaration for release into free circulation. 

(6)  Whenever  the  Commission  withdraws,  pursuant  to  Article  8(9)  of  the  basic 
Regulation,  its  acceptance  of  an  undertaking  following  a  breach  by  referring  to 
particular  transactions  and  declares  the  relevant  undertaking  invoices  as  invalid,  a 
customs debt shall be incurred at the time of acceptance of the declaration for release 
into free circulation of these transactions. 

(7) 

(8) 

(9) 

Importers should be aware that a customs debt may be incurred, as a normal trade risk, 
at  the  time  of  acceptance  of  the  declaration  for  release  into  free  circulation  as 
described  in  recitals  (5)  and  (6)  even  if  an  undertaking  offered  by  the  manufacturer 
from  whom  they  were  buying,  directly  or  indirectly,  had  been  accepted  by  the 
Commission. 

Pursuant  to  Article  14(7)  of  the  basic  Regulation,  customs  authorities  should  inform 
the  Commission  immediately  whenever  indications  of  a  violation  of  the  undertaking 
are found. 

For  the  reasons  stated  above  the  undertaking  offered  by  the  exporting  producer  is 
therefore  considered  acceptable  by  the  Commission  and  the  exporting  producer 
concerned  has  been  informed  of  the  essential  facts,  considerations  and  obligations 
upon which acceptance is based. 

(10) 

In the event of a breach or withdrawal of the undertaking or in case of withdrawal of 
acceptance  of  the  undertaking  by  the  Commission  the  anti-dumping  duty  which  has 
been imposed by the Council in accordance with Article 9(4) shall automatically apply 
by means of Article 8(9) of the basic Regulation. 

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HAS ADOPTED THIS REGULATION: 

Article 1 

Regulation (EC) No 442/2007 is hereby amended as follows:  

The following Article shall be added after Article 1: 

"Article 1bis 

1. 

2. 

Notwithstanding  Article  1,  the  definitive  anti-dumping  duty  shall  not  apply  to 
imports released for free circulation in accordance with the subsequent paragraphs of 
this Article. 

Imports  of  solid  fertilisers  with  an  ammonium  nitrate  content  exceeding  80  %  by 
weight originating in Ukraine, falling within CN codes 3102 30 90, 3102 40 90, ex 
3102 29 00, ex 3102 60 00, ex 3102 90 00, ex 3105 10 00, ex 3105 20 10, ex 3105 51 
00,  ex  3105  59  00  and  ex  3105  90  91  for  release  into  free  circulation  which  are 
invoiced  by  the  exporting  producer  from  which  undertaking  is  accepted  by  the 
Commission  and  whose  name 
the  Commission  Decision 
[2008/[INSERT]/EC], as from time to time amended, shall be exempt from the anti-
dumping duty imposed by Article 1, on condition that: 

listed 

in 

is 

– 

– 

– 

they are manufactured, shipped and invoiced directly by the exporting producer 
to the first independent customer in the Community; and 

such  imports  are  accompanied  by  an  undertaking  invoice  which  is  a 
commercial  invoice  containing  at  least  the  elements  and  the  declaration 
stipulated in Annex of this Regulation; and 

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

3. 

A  customs  debt  shall  be  incurred  at  the  time  of  acceptance  of  the  declaration  for 
release into free circulation: 

– 

– 

whenever it is established, in respect of imports described in paragraph 1, that 
one or more of the conditions listed in that paragraph are not fulfilled; or 

when the Commission withdraws its acceptance of the undertaking pursuant to 
Article 8(9) of the basic Regulation in a Regulation or Decision which refers to 
particular  transactions  and  declares  the  relevant  undertaking  invoices  as 
invalid." 

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The following Annex shall be inserted: 

ANNEX  

The  following  elements  shall  be  indicated  in  the  commercial  invoice  accompanying  the 
company's sales to the Community of goods which are subject to the undertaking: 

1. 

2. 

3. 

4. 

5. 

6. 

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

The name of the company 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: 

– 

– 

– 

– 

the CN code used for the purpose of the undertaking, 

The nitrogen (‘N’) content of the product (in percentages), 

Taric code, 

quantity (to be given in tonnes). 

7. 

The description of the terms of the sale, including: 

– 

– 

– 

– 

price per tonnes, 

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 commercial invoice and 
the following signed declaration: 

“I, the undersigned, certify that the sale for direct export to the European Community 
of the goods covered  by  this  invoice is being made within the scope  and under the 
terms  of  the  Undertaking  offered  by  [COMPANY],  and  accepted  by  the  European 
Commission  through  [Decision  2008/XXXX/EC].  I  declare  that  the  information 
provided in this invoice is complete and correct.” 

Article 2 

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

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

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Done at Brussels, […] 

For the Council 
The President 
[…] 

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