2008/577/EC: Commission Decision of 4 July 2008 accepting the undertakings offered in connection with the anti-dumping proceeding concerning imports of ammonium nitrate originating in Russia and Ukraine
Date: 2008-07-04
Institutions: European Commission
Subjects: Russia, Ukraine, anti-dumping duty, chemical compound, chemical fertiliser, import, originating product

12.7.2008

EN

Official Journal of the European Union

L 185/43

(Acts adopted under the EC Treaty/Euratom Treaty whose publication is not obligatory)

II

DECISIONS

COMMISSION

COMMISSION DECISION

of 4 July 2008

accepting the undertakings offered in connection with the anti-dumping proceeding concerning
imports of ammonium nitrate originating in Russia and Ukraine

(2008/577/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty
Community,

establishing the European

Having regard to Council Regulation (EC) No 384/96 of
22 December 1995 on protection against dumped imports
from countries not members of the European Community (1)
(the basic Regulation), and in particular Articles 8 and 9 thereof,

After consulting the Advisory Committee,

Whereas:

(2)

(3)

A. PROCEDURE

(1)

By Regulation (EC) No 2022/95 (2), the Council imposed
a definitive anti-dumping duty on imports of ammonium
nitrate originating in Russia (the product concerned).
Pursuant
to a further investigation, which established
that the duty was being absorbed, the measures were
amended by Council Regulation (EC) No 663/98 (3).
for an expiry and an interim
Following a request
review pursuant
the
imposed by Regulation
basic Regulation,

to Articles 11(2) and 11(3) of
the Council

(EC) No 658/2002 (4) a definitive anti-dumping duty of
EUR 47,07 per tonne on imports of ammonium nitrate
falling within CN codes 3102 30 90 and 3102 40 90
and originating in Russia.

By Regulation (EC) No 132/2001 (5),
the Council
imposed a definitive anti-dumping duty of EUR 33,25
per tonne on imports of the product concerned originat­
ing in Ukraine. Following an expiry review initiated in
the Council, by Regulation (EC) No
January 2006,
442/2007 (6), renewed these measures at their current
level for two years.

and

authorised

undertakings),

By Regulation (EC) No 993/2004 (7),
the Council
the exemption from the anti-dumping
provided for
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 undertakings
(enlargement
the
Commission to accept those enlargement undertakings.
On this basis, the Commission, by Regulation (EC) No
1001/2004 (8), accepted three enlargement undertakings
offered by the Russian exporting producers Open Joint
Stock Company (OJSC) Mineral and Chemical Company
‘Eurochem’, member of
Eurochem group of
and JSC Acron and JSC Dorogobuzh,
companies,
‘Acron’ Holding Company ‘Acron’, and
members of
Ukrainian
Stock
Company (OJSC) Azot Cherkassy ‘Cherkassy’.

producer, Open

exporting

Joint

the

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

(5) OJ L 23, 25.1.2001, p. 1. Regulation as last amended by Regulation

(EC) No 2117/2005 (OJ L 340, 23.12.2005, p. 17).

(2) OJ L 198, 23.8.1995, p. 1. Regulation as amended by Regulation

(EC) No 663/98 (OJ L 93, 26.3.1998, p. 1).

(3) OJ L 93, 26.3.1998, p. 1.

(EC) No 945/2005.

(6) OJ L 106, 24.4.2007, p. 1.
(7) OJ L 182, 19.5.2004, p. 28.
(8) OJ L 183, 20.5.2004, p. 13.

(4) OJ L 102, 18.4.2002, p. 1. Regulation as last amended by Regu­

lation (EC) No 945/2005 (OJ L 160, 23.6.2005, p. 1).

(4)

(5)

(6)

(7)

(8)

(9)

L 185/44

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Official Journal of the European Union

12.7.2008

By Regulation (EC) No 1996/2004 (1), the Commission
accepted a new undertaking
exporting
producers mentioned above until 20 May 2005.

from the

Acron and Cherkassy submitted acceptable price under­
takings in accordance with Article 8(1) of the basic Regu­
lation.

By Regulation (EC) No 945/2005 (2),
following an
interim review limited in scope to the definition of the
product concerned, the Council decided that the defi­
nition of the product concerned should be clarified and
that
the measures in force should also apply to the
product concerned when incorporated in other fertilizers,
in proportion to their content of ammonium nitrate,
together with other marginal substances and nutrients.

(10)

definitive

the partial
The definitive findings and conclusions of
in
interim review concerning Eurochem are set out
Council Regulation (EC) No 2008/661/EC (8)
imposing
of
anti-dumping
a
ammonium nitrate originating in Russia. During the
course of the investigation Eurochem has submitted an
acceptable price undertaking within the Article 8(1) of
the basic Regulation.

imports

duty

on

On 30 November 2005, the Commission announced by
a notice published in the Official Journal of the European
Union (3),
interim review
concerning imports into the Community of ammonium
nitrate originating in Russia upon request of Eurochem.

the initiation of a partial

(11)

These measures were maintained
by Regulation
2008/661/EC following an expiry review initiated on
14 April 2007 (9).

B. UNDERTAKINGS

On 19 December 2006, the Commission announced by
a notice published in the Official Journal of the European
Union (4),
interim review
concerning imports into the Community of ammonium
nitrate originating in Russia upon the request of Acron.

the initiation of a partial

(12)

the indexation of

the exporting producers offered to sell

In the framework of these partial
interim reviews, the
exporting producers offered undertakings in accordance
with Article 8(1) of the basic Regulation. In these under­
the
takings,
product concerned at or above price levels which
eliminate the injurious effects of dumping. In addition,
the offers made provide for
the
minimum prices in accordance with public international
the
quotations of
prices of the product concerned vary significantly. The
exporting producers also offered to respect a certain
quantitative ceiling in order to avoid that their imports
could influence the prices in France or in the United
the
Kingdom. Those prices
indexation. The level of the quantitative ceilings is set
in total
total Community
around 12 % of
consumption of the product concerned.

the product concerned, given that

a basis

serve

the

for

as

(13) Moreover, the exporting producers — in order to reduce
the risk of price violations by means of cross-compen­
sation of the prices — offered not to sell the product
covered by the undertakings to the same customers in
the European Community to which they sell other
products, with the exception of certain other products
for which the exporting producers undertake to respect
specific price regimes.

(14)

also

provide

exporting

producers will

The
the
and detailed information
Commission with regular
concerning their exports to the Community, meaning
that the undertakings can be monitored effectively by
the Commission. Furthermore,
the sales structures of
the exporting producers are such that the Commission
considers that the risk of circumventing the undertakings
is limited.

(8) See page 1 of this Official Journal.
(9) OJ C 81, 14.4.2007, p. 2.

On 19 December 2006, the Commission announced by
a notice published in the Official Journal of the European
Union (5),
interim review
concerning imports into the Community of ammonium
nitrate originating in Ukraine upon the request of
Cherkassy.

the initiation of a partial

the partial
The definitive findings and conclusions of
interim review concerning Acron and Cherkassy are set
in Council Regulation (EC) No 236/2008 (6) and
out
Council Regulation (EC) No 237/2008 (7). During the
interim reviews Acron and Cherkassy expressed an
interest
failed to
in offering a price undertaking but
submit a duly substantiated offer within the deadline as
set out in Article 8(2) of the basic Regulation. However,
as stated in the above mentioned Council Regulations,
should
the Council considered that both companies
exceptionally be allowed to complete their undertaking
offers within 10 calendar days from entry into force of
that Regulation due to reasons set out in recitals 61 and
62 of Regulation (EC) No 236/2008 and recitals 46 and
47 of Regulation (EC) No 237/2008. Subsequent of the
publication of the above mentioned Council Regulations
and within the deadline as set out in those Regulations,

(1) OJ L 344, 20.11.2004, p. 24.
(2) OJ L 160, 23.6.2005, p. 1.
(3) OJ C 300, 30.11.2005, p. 8.
(4) OJ C 311, 19.12.2006, p. 55.
(5) OJ C 311, 19.12.2006, p. 57.
(6) OJ L 75, 18.3.2008, p. 1.
(7) OJ L 75, 18.3.2008, p. 8.

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Official Journal of the European Union

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(15)

(16)

(17)

Subsequent to the disclosure of the undertaking offers,
the Community industry objected to these undertaking
offers. The Community industry argued that the prices of
the product concerned are volatile and that an indexation
the minimum import prices based on the quoted
of
prices of the product concerned is not workable under
in particular it would not be
all market conditions,
workable in a supply driven market. Therefore,
the
Community industry suggested to base the indexation
of the minimum prices on the prices of natural gas as
quoted at Waidhaus. However, in this regard it has to be
noted that a natural gas price based indexation is not
considered to be feasible in these cases due to the poor
correlation of the product concerned and natural gas
industry’s
the
prices. As
comments that on a supply driven market the current
indexation formula will not be workable, it is noted that
the Commission will monitor these undertakings and
should prima facie evidence exist that these undertakings
the Commission should act
are no longer workable,
expeditiously to remedy the situation, as set out
in
recital 19.

Community

concerns

it should be noted that

to be set maximum at 4 % of

The Community industry further argued that the level of
the quantitative ceilings would be too high and requested
it
total Community
consumption. It claimed that the companies would be
able to influence the prices on the Community market
with the amounts mentioned in recital 12 and thus make
the indexation of the minimum prices unworkable. In
the quantitative
this respect
ceiling was established at a level which was considered
to (i) satisfactorily limit the risk of companies influencing
the prices on the UK and French market thus rendering
the indexation formula unworkable (ii) be sufficiently
high so that so that the undertakings remain practicable
at the same time. Moreover, the Community industry
to how any
failed to substantiate its argument as
quantity
total Community
exceeding 4 % of
consumption would be sufficient to have a detrimental
impact on prices.

the

The Community industry proposed moreover the intro­
duction of a ‘progressive quantitative ceiling’ whereby the
quantitative ceiling of each exporting producer shall be
increased on a yearly basis depending on them respecting
the terms of the undertakings. This suggestion is however
rejected because the sole aim of the quantitative ceilings
is to limit the risk of influencing the prices on which the
indexation of minimum price is based. It should also be
noted that in case of a breach of the undertaking, the
acceptance of
such may be
withdrawn.

the undertaking

as

(18)

the Community

industry argued that
Furthermore,
because the exporting producers can sell other products
together with the product covered by the undertaking to
the same customers in the European Community, there is
a high risk of cross-compensation, i.e. the products not
covered by the undertaking may be sold at artificially low

prices in order to compensate the minimum prices for
the products covered by the undertaking. In this regard,
it should be noted, as indicated in recital 13, the under­
taking contains specific clauses in order to limit the risk
of cross-compensation. Therefore, the concerns of the
Community industry have been sufficiently addressed.

(19)

In view of the above, the undertakings offered by the
Russian
are
acceptable.

and Ukrainian

producers

exporting

the prices of

the following criteria:

in particular the indexation formula)

(20) However, due to the special elements of these under­
takings (i.e.
the
Commission will assess the practicability of these under­
the
takings regularly. For its practicability assessment,
Commission will take into account, but is not restricted
to,
the product
concerned in the French and the UK market; the level
of the coefficient of the indexation formula; the sales
prices of the exporting producer as reported by them
in their quarterly sales
the
Community industry. In particular, should this practic­
ability assessment show that the decrease of the profit­
ability of the Community industry is attributable to the
undertakings, the Commission endeavours to withdraw
the acceptance of
the undertakings expeditiously in
accordance with Article 8(9) of the basic Regulation.

reports; profitability of

(21)

least

containing at

In order to enable the Commission to monitor effectively
the companies’ compliance with the undertakings, when
the request for release into free circulation is presented to
the relevant customs authority, exemption from the anti-
dumping duty will be conditional on (i) the presentation
of an undertaking invoice
the
elements listed in the Annex to Regulation (EC) No
2008/661/EC and in the Annex to Council Regulation
(EC) No 2008/662/EC (1);
imported
goods are manufactured, shipped and invoiced directly
by
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 no such invoice is presented, or when it does not
the
correspond to the product presented to customs,
instead be
appropriate rate of anti-dumping duty shall
payable.

said companies

the fact

to the

that

first

the

(ii)

(22)

these undertakings,
To further ensure the respect of
importers have been made aware by the Regulation
(EC) No 2008/661/EC and by Regulation (EC) No
2008/662/EC that the non-fulfillment of the conditions
provided for by those Regulations, or the withdrawal by
the Commission of the acceptance of the undertaking,
may lead to the customs debt being incurred for the
relevant transactions.

(1) See page 35 of this Official Journal.

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Official Journal of the European Union

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(23)

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 imposed in accordance with Article 9(4)
of the basic Regulation shall automatically apply pursuant to Article 8(9) of the basic Regulation,

HAS DECIDED AS FOLLOWS:

Article 1

The undertaking offered by the exporting producers mentioned below in connection with the anti-dumping
proceeding concerning imports of ammonium nitrate originating in Russia and Ukraine are hereby accepted.

Country

Russia

Companies

Produced by OJSC NAK Azot, Novomoskovsk, Russia, or OJSC Nevinnomyssky Azot,
Nevinnomyssk, Russia, and either sold directly to the first independent customer in the
Community or by Eurochem Trading GmbH, Zug, Switzerland or via Open Joint Stock
Company (OJSC) Mineral and Chemical Company ‘Eurochem’, Moscow, Russia and
Eurochem Trading GmbH, Zug, Switzerland, to the first independent customer in
the Community

Russia

JSC Acron, Veliky Novgorod, Russia and JSC Dorogobuzh, Dorogobuzh, Russia,
members of ‘Acron’ Holding Company

Ukraine

Open Joint Stock Company (OJSC) Azot Cherkassy, Ukraine

Taric additional
code

A522

A532

A521

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

Article 2

Done at Brussels, 4 July 2008.

For the Commission

Peter MANDELSON
Member of the Commission