Council Regulation (EC) No 662/2008 of 8 July 2008 amending Regulation (EC) No 442/2007 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: 2008-07-08
Institutions: Council of the European Union
Subjects: Ukraine, anti-dumping duty, anti-dumping legislation, chemical compound, chemical fertiliser, import, originating product

12.7.2008

EN

Official Journal of the European Union

L 185/35

COUNCIL REGULATION (EC) No 662/2008

of 8 July 2008

amending Regulation (EC) No 442/2007 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,

review without amending the anti-dumping measures in
force.

Having regard to the Treaty
Community,

establishing the European

B. UNDERTAKING

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 Article 8 thereof,

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

Whereas:

(1)

(2)

A. PROCEDURE

On 22 January 2001 the Council imposed, by Regulation
(EC) No 132/2001 of 22 January 2001 imposing a defi­
nitive anti-dumping duty and collecting definitively the
provisional duty imposed on imports of ammonium
nitrate originating in Poland and Ukraine, and termi­
nating the
anti-dumping proceeding in respect of
imports originating in Lithuania (2), 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,
in Ukraine.
Following an expiry review initiated in January 2006,
the Council, by Regulation (EC) No 442/2007 (3),
renewed these measures at their current level for two
years.

inter alia,

the initiation of a partial

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 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
Regulation (EC) No 237/2008 (5), which terminated the

(1) 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).

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

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

(3) OJ L 106, 24.4.2007, p. 1.
(4) OJ C 311, 19.12.2006, p. 57.
(5) OJ L 75, 18.3.2008. p. 8.

(3)

(4)

(5)

interim review the

exporting producer
During the
expressed an interest
in offering a price undertaking
but failed to submit a duly substantiated offer within
the
the deadline in accordance with Article 8(2) of
basic Regulation. However, as stated in recitals (46) and
(47) of Regulation (EC) No 237/2008,
the Council
considered that
the exporting producer should excep­
tionally be allowed to complete its undertaking offer
within 10 calendar days from entry into force of that
several
Regulation due to the complexity of
issues,
namely:
the product
of
the price
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 product
concerned. After the publication of Regulation (EC) No
237/2008 and within the deadline as set out in that
an
exporting producer
Regulation,
submitted
acceptable
accordance with
in
undertaking
Article 8(1) of the basic Regulation.

the particular market

situation for

the
price

volatility

(1)

The Commission, by Decision 2008/577/EC (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.

the compliance of

To further enable the Commission and the customs auth­
orities effectively to monitor
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 imported goods having
been manufactured, shipped and invoiced directly by the
exporting producer to the first independent customer in
the Community;
the goods declared and
presented to customs corresponding 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.

and (iii)

(6) See page 43 of this Official Journal.

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Official Journal of the European Union

12.7.2008

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

and declares

the

(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.

to Article 14(7) of

the basic Regulation,
Pursuant
customs authorities
should inform the Commission
immediately whenever indications of a violation of the
undertaking are found.

the Commission,

For the reasons stated above, the undertaking offered by
the exporting producer is therefore considered acceptable
exporting producer
by
and the
concerned has been informed of
facts,
the essential
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
in accordance with
been imposed by the Council
Article 9(4)
to
shall
Article 8(9) of the basic Regulation,

automatically apply pursuant

and whose name is listed in the Commission Decision
2008/577/EC (1), as from time to time amended, shall be
exempt from the anti-dumping duty imposed by Article 1,
on condition that:

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

— such imports

accompanied by an undertaking
are
invoice, which is a commercial
invoice containing at
least the elements and the declaration stipulated in the
Annex to this Regulation, and

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

A customs debt shall be incurred at

3.
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 Regu­
lation in a Regulation or Decision which refers to
particular transactions and declares the relevant under­
taking invoices invalid.

___________
(1) OJ L 185, 12.7.2008, p. 43.’

HAS ADOPTED THIS REGULATION:

2. the following Annex shall be added:

Article 1

‘ANNEX

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

1. the following Article shall be inserted after Article 1:

The following elements shall be indicated in the commercial
the
invoice
Community of goods which are subject to the undertaking:

accompanying

company’s

sales

the

to

‘Article 1bis

1. The heading “COMMERCIAL INVOICE ACCOMPANYING

GOODS SUBJECT TO AN UNDERTAKING”.

1.
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.

2. The name of

the company issuing the commercial

invoice.

CN codes

2.
Imports of solid fertilisers with an ammonium nitrate
content exceeding 80 % by weight originating in Ukraine,
3102 40 90,
falling within
ex 3102 90 00,
ex 3102 29 00,
ex 3105 51 00,
ex 3105 10 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

ex 3102 60 00,
ex 3105 20 10,

3102 30 90,

3. The commercial invoice number.

4. The date of issue of the commercial invoice.

5. The TARIC additional code under which the goods on the
the Community

invoice are to be customs-cleared at
frontier.

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6. The exact description of the goods, including:

8. Name of

— the CN code used for the purpose of the undertaking,

— the nitrogen (“N”)

content of

the product

(in

percentages),

— the TARIC code,

— the quantity (to be given in tonnes).

7. The description of the terms of the sale, including:

— the price per tonne,

— the applicable payment terms,

— the applicable delivery terms,

— total discounts and rebates.

the company acting as an importer in the
invoice accom­
issued

Community to which the commercial
panying goods
subject
directly by the company.

to an undertaking is

9. The name of the official of the company that has issued
signed

commercial

following

and the

invoice

the
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
through
by
accepted
Decision 2008/577/EC.
the information
provided in this invoice is complete and correct.”.’

European Commission

I declare that

the

Article 2

This Regulation shall enter into force on the day following 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.

Done at Brussels, 8 July 2008.

For the Council
The President

C. LAGARDE