Proposal for a Council Regulation clarifying the scope of the definitive anti-dumping duties imposed by Council Regulation (EC) No 85/2006 on imports of farmed salmon originating in Norway
Date: 2009-03-20
Institutions: European Commission
Subjects: Norway, anti-dumping duty, anti-dumping legislation, application of the law, fish, fish farming, originating product

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 20.3.2009 
COM(2009) 130 final 

Proposal for a 

COUNCIL REGULATION 

clarifying the scope of the definitive anti-dumping duties imposed by Council Regulation 
(EC) No 85/2006 on imports of farmed salmon originating in Norway

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EXPLANATORY MEMORANDUM 

CONTEXT OF THE PROPOSAL 

Grounds for and objectives of the proposal 

This  proposal  concerns  the  application  of  Council  Regulation  (EC)  No  384/96  of 
22 December 1995 on protection against dumped imports from countries not members 
of  the  European  Community,  as  last  amended  by  Council  Regulation  (EC) 
No 2117/2005  of  21  December  2005  ('the  basic  Regulation')  in  the  anti-dumping 
proceeding concerning imports of farmed salmon originating in Norway. 

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 

Council  Regulation  (EC)  No  85/2006  of  17  January  2006  imposing  a  definitive  anti-
dumping duty on imports of farmed salmon originating in Norway repealed by Council 
Regulation (EC) No 685/2008 of 17 July 2008. 

Consistency with the other policies and objectives of the Union 

Not applicable. 

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. 

LEGAL ELEMENTS OF THE PROPOSAL 

Summary of the proposed action 

By  Council  Regulation  (EC)  No  85/2006  of  17  January  2006  the  Council  imposed  a 

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definitive anti-dumping duty on imports of farmed salmon originating in Norway. 

The  Tallinn  Administrative  Court  has  applied  to  the  European  Court  of  Justice  for  a 
preliminary ruling on the question whether frozen backbones (bones with fish meat) of 
salmon  fall  within  one  of  the  Taric  codes  mentioned  in  Article  1  of  the  above 
mentioned  Regulation,  and  on  the  subsequent  question  regarding  the  implications  of 
this  classification  for  the  anti-dumping  measures.  Article  1  of  the  same  Regulation 
imposes  measures  at  different  levels  depending  on  the  presentations  of  the  product 
concerned. One of these presentations is ‘other farmed salmon (including gutted, head 
off), fresh, chilled or frozen’. 

On 18 July 2008, the Commission on its own initiative opened an interim review of the 
above measures pursuant to Article 11(3) of the basic Regulation in order to clarify the 
scope of the product.  

The investigation revealed that salmon backbones whether frozen, fresh or chilled do 
not share the same basic physical characteristics, and do not have the same basic end-
uses  as  ‘other  farmed  salmon  (including  gutted,  head  off),  fresh,  chilled  or  frozen’. 
They are not interchangeable and do not compete with each other on the Community 
market. 

Therefore,  it  is  suggested  that  the  Council  adopts  the  attached  proposal  for  a 
Regulation in order to clarify the definition of the product in the Regulation imposing 
definitive anti-dumping measures by specifying that salmon backbones whether frozen, 
fresh or chilled are not subject to measures. 

Legal basis 

Council  Regulation  (EC)  No  384/96  of  22  December  1995  on  protection  against 
dumped  imports  from  countries  not  members  of  the  European  Community,  as  last 
amended by Council Regulation (EC) No 2117/2005 of 21 December 2005.  

Subsidiarity principle 

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

Proportionality principle 

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

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

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

Choice of instruments 

Proposed instruments: regulation. 

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

The above-mentioned basic Regulation does not foresee alternative options. 

BUDGETARY IMPLICATION 

The proposal has likely negative implications for the Community budget. 

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Proposal for a 

COUNCIL REGULATION 

clarifying the scope of the definitive anti-dumping duties imposed by Council Regulation 
(EC) No 85/2006 on imports of farmed salmon originating in Norway 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, 

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

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

Whereas: 

1. Former investigations and anti-dumping measures 

A. PROCEDURE 

(1) 

(2) 

(3) 

(4) 

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Following  the  initiation  of  an  anti-dumping  investigation  in  October  20042,  the 
Commission  by  Regulation  (EC)  No  628/20053  imposed  provisional  anti-dumping 
duties on imports of farmed salmon originating in Norway in form of an ad valorem 
duty. 

On  1  July  2005,  by  Regulation  (EC)  No  1010/20054,  the  Commission  amended  the 
form of the provisional duties to a minimum import price ("MIP"). 

The Council, by Regulation (EC) No 85/20065 imposed a definitive anti-dumping duty 
on  imports  of  farmed  salmon  originating  in  Norway  (the  'original  investigation'  and 
'definitive Regulation'). The definitive duty was imposed in the form of a MIP. 

By Regulation (EC) No 685/20086, following an interim review limited in scope to the 
aspects  of  dumping  with  the  objective  of  assessing  the  need  for  the  continuation, 
removal  or  amendment  of  the  existing  measures,  the  Council  repealed  the  anti-
dumping measures imposed by the definitive Regulation. 

OJ L 56, 6.3.1996, p. 1. 
OJ C 261, 23.10.2004, p.8. 
OJ L 104, 23.4.2005, p.5 
OJ L 170, 1.7.2005, p.32 
OJ L 15, 20.1.2006, p. 1. 
OJ L 192, 19.7.2008, p. 5. 

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2. Initiation of the review investigation 

(5) 

(6) 

(7) 

(8) 

(9) 

(10) 

A  partial  interim  review  was  initiated  on  the  Commission’s  own  initiative  after  the 
Tallinn  Administrative  Court  applied  to  the  European  Court  of  Justice  for  a 
preliminary ruling on the question whether frozen backbones (bones with fish meat) of 
salmon ('salmon backbones") fall within one of the Taric codes mentioned in Article 1 
of the definitive Regulation. Article 1 of the definitive Regulation imposes measures at 
different levels depending on the presentations of the product concerned. One of these 
presentations is ‘Other (including gutted, head off), fresh, chilled or frozen’. 

Therefore,  it  was  considered  appropriate  to  examine  whether  frozen  backbones  of 
salmon fall within the definition of the product concerned, and in particular within the 
above mentioned presentation, with the conclusion thereon possibly having retroactive 
effect as of the date of the imposition of the relevant anti-dumping measures. 

After  consulting  the  Advisory  Committee,  the  Commission  announced  by  a  notice 
(‘the notice of initiation’) published in the Official Journal of the European Union7 the 
initiation  of  a  partial  interim  review  in  accordance  with  Article  11(3)  of  the  basic 
Regulation, limited in scope to the examination of the product scope. 

B. PRESENT INVESTIGATION 

The Commission officially advised the authorities of Norway, the Norwegian producer 
association, known importers in the Community, known users in the Community, the 
associations  of  producers  in  the  Community  and  other  known  producers  in  the 
Community  of  the  initiation  of  the  investigation.  Interested  parties  were  given  the 
opportunity  to  make  their  views  known  in  writing  and  request  a  hearing  within  the 
time limit set in the notice of initiation. 

The  Commission  sent  questionnaires  to  all  parties  known  to  be  concerned  and  to  all 
other  companies  which  made  themselves  known  within  the  deadlines  set  out  in  the 
notice of initiation. 

In  view  of  the  scope  of  the  partial  review,  no  investigation  period  was  set  for  the 
purpose  of  this  partial  review.  The  information  received  in  the  questionnaire  replies 
covered the period from 2005 to 2007 (period considered). For the period considered, 
information concerning purchase volumes, sales volumes and value was requested. In 
addition,  the  parties  concerned  were  asked  to  comment  on  any  differences  or 
similarities  between  salmon  backbones  and  farmed  salmon  with  respect  to  their 
physical,  chemical  and/or  biological  characteristics,  end-uses,  interchangeability  and 
competition with one another. 

(11)  Two importers in the Community and the Norwegian producer association co-operated 
in  the  present  investigation  and  submitted  the  basic  information  mentioned  above.

The  Commission  sought  and  verified  all  information  deemed  necessary  for  the 
purpose  of  the  clarification  of  the  scope  of  the  existing  anti-dumping  measures  and 
carried out investigations at the premises of the following importers: 

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OJ C 181, 18.7.2008, p. 25. 

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- Nereus AS, Pärnu, Estonia   
- Pärlitigu OÜ, Tallinn, Estonia 

The following salmon backbone processor was also visited: 

- Korvekula Kalatoostuse, Tartu, Estonia 

(12)  All  interested  parties  were  informed  of  the  essential  facts  and  considerations  on  the 
basis of which the present conclusions were reached. In accordance with Article 20(5) 
of  the  basic  Regulation,  parties  were  granted  a  period  within  which  they  can  make 
representations subsequent to the disclosure. The oral and written comments submitted 
by  the  parties  were  considered  and,  where  appropriate,  the  findings  have  been 
modified accordingly. 

C. PRODUCT CONCERNED 

(13)  The  product  under  review  is  the  same  as  in  the  original  investigation,  i.e.  farmed 
(other than wild) salmon, whether or not filleted, fresh, chilled or frozen, originating in 
Norway  (the  product  concerned).  The  definition  excludes  other  similar  farmed  fish 
products  such  as  large  (salmon)  trout,  biomass  (live  salmon)  as  well  as  wild  salmon 
and further processed types such as smoked salmon. 

(14)  The product is currently classifiable within CN codes ex 0302 12 00, ex 0303 11 00, 
ex  0303  19  00,  ex  0303  22  00,  ex  0304  19  13  and  ex  0304  29  13  corresponding  to 
different  presentations  of  the  product  (fresh  or  chilled  fish,  fresh  or  chilled  fillets, 
frozen fish and frozen fillets). 

D. RESULTS OF THE INVESTIGATION 

1. Methodology 

(15) 

In order to assess whether salmon backbones should fall within the product scope of 
Article 1 of the definitive Regulation, it was examined whether salmon backbones and 
farmed  salmon  shared  the  same  basic  physical  and/or  biological  characteristics  and 
end-uses.  In  this  regard,  the  interchangeability  and  the  competition  between  salmon 
backbones and other farmed salmon in the Community were also assessed. 

2. Basic physical characteristics 

(16)  Salmon backbone, which usually weighs  about 10% of a whole fish,  is a by-product 
which  results  from  the  salmon  filleting  process.  After  gutting  and  heading  off 
operations, fillets are obtained by parting the salmon in at least three separate pieces: 
two  fillets  and  a  backbone  to  which  some  flesh  is  still  attached.  A  higher  level  of 
trimming can be achieved by performing additional tasks such as the removal of back 
fins, collar bone, pin bone, belly flaps and skin. 

(17)  Article  1  of  the  definitive  Regulation  refers  to  various  farmed  salmon  presentation 
types,  including  whole  fish,  whole  fish  gutted  head  on  and  fillets  in  different 
presentations (weight, skin on/off). 

(18) 

It is undisputed that salmon backbones do not fall within presentation types referring 
to  the  whole  fish,  gutted-  head  on,  gutted  head-off,  or  any  of  the  presentation  types 

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referring to fillets listed in Article 1 of the definitive Regulation. Indeed, as far as these 
types  are  concerned,  salmon  backbones  are  clearly  and  easily 
presentation 
distinguishable  because  they  have,  as  outlined  below,  clear  different  physical 
characteristics. 

(19)  The question arises whether salmon backbones would fall within the category "Other" 
in Article 1 of the definitive Regulation, which includes gutted head off salmon (fresh, 
chilled or frozen) but is not exclusively reserved for this kind of presentation. 

(20) 

In  this  regard,  it  was  considered  that  the  definitive  Regulation  only  distinguished 
between two types of products; i.e. filleted and non-filleted salmon, whereas the latter 
referred  to  the  whole  salmon.  This  is  apparent  from  the  original  investigation  where 
information  was  only  collected  concerning  the  whole  fish  and  the  fillets,  but  not  for 
other  parts  of  the  fish,  i.e.  the  applicable  MIPs  were  calculated  on  the  basis  of  this 
information only. Thus, it seems that although salmon backbones were not explicitly 
excluded, the investigation at that time did not mean to target backbones. 

(21)  As mentioned above, some flesh is still attached to the backbone and this flesh is also 
partly  destined  for  human  consumption.  However,  backbones,  as  suggested  by  the 
name, are mainly characterised by the bone whereas farmed salmon whether filleted or 
not  is  mainly  characterised  by  the  flesh.  Indeed,  salmon  backbone  represents  about 
10% of a whole salmon weight, and the flesh on the backbone represents between 25% 
and 40% of the backbone weight. The flesh attached to the backbone thus accounts for 
only 2,5 to 4% of a whole fish weight while salmon flesh of a whole fish accounts for 
more than 65% of the whole fish weight. 

(22)  Therefore, it was concluded that salmon backbones and farmed salmon as defined by 
the definitive Regulation do not share the same basic physical characteristics. 

3. Basic end-uses and interchangeability 

(23)  The  investigation  further  revealed  that  farmed  salmon  as  defined  in  the  definitive 
Regulation  has  several  high-end  uses.  Indeed  such  product  will  be  marketed  in  a 
gutted  head-on/off  presentation,  as  a  fillet,  a  steak  or  will  be  filleted  before  being 
smoked  or  marinated.  Such  products  are  usually  sold  in  supermarkets  or  are  further 
processed and offered in restaurants or specialised shops. Given their price level, they 
will be advertised as high-end products and can be regarded as sub-luxury products. 

(24)  Very  often  salmon  backbones  are  considered  as  waste  and  disposed  of  during  the 
filleting  process.  When  salmon  backbones  are  not  disposed  of  at  the  packing  station 
where the filleting takes place, they will mostly be sold as low-end products and used 
mainly  in  animal  feed  but  also  as  ingredients  in  soups,  hamburger  patties  and  pâtés. 
Only in some limited cases, will salmon backbones also be smoked and sold as such 
(i.e. without scraping off the flesh beforehand) for human consumption. The smoked 
flesh on the backbone will, however, be even more limited in weight. 

(25)  The information gathered showed that salmon backbones are priced at a significantly 
lower  level  than  farmed  salmon.  While  farmed  salmon  was  never  imported  below 
2.88€/kg over the period January 2006 to Ju ly 2008, salmon backbones were imported 
at an average of 0.50€/kg over the same peri od. Also it should be noted that whereas 

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the  price  of  farmed  salmon  varied  significantly  in  the  period  mentioned  above,  the 
price evolution for salmon backbones was flat. 

(26)  Given  the  above,  it  is  concluded  that  both  products  do  not  share  the  same  basic  end 
uses and are targeted at distinct markets. While farmed salmon is a high-end product, 
salmon  backbone  is  a  salmon  by-product  destined  for  the  low  end  market  and  used 
mainly as an ingredient in the animal feed or food processing industry. 

(27) 

It follows from the above that farmed salmon and salmon backbones do not have the 
same basic end-uses and are not interchangeable. 

E. CONCLUSIONS ON THE PRODUCT SCOPE 

(28)  The above findings show that salmon backbones and farmed salmon as defined in the 
Definitive Regulation do not share the same basic physical characteristics and do not 
have the same basic end-uses. They are not interchangeable and do not compete with 
each  other  on  the  Community  market.  On  this  basis,  it  is  concluded  that  salmon 
backbones and farmed salmon as defined in Article 1 of the definitive Regulation are 
two  different  products.  Since  salmon  backbones  did  not  fall  within  the  scope  of  the 
original investigation the anti-dumping duty should not have been applied to imports 
of salmon backbones. 

(29)  Based  on  the  above,  the  scope  of  application  of  the  measures  should  be  clarified 

retroactively by an amendment to the definitive Regulation. 

F. RETROACTIVE APPLICATION 

(30)  Since  the  present  review  investigation  is  limited  to  the  clarification  of  the  product 
scope and since salmon backbones were not covered by the original investigation and 
the consequent anti-dumping measure, it is considered appropriate that the findings be 
applied from the date of the entry into force of the definitive Regulation, including any 
imports subject to provisional duties. 

(31)  Consequently,  the  provisional  duties  definitively  collected  and  the  definitive  anti-
dumping duties paid pursuant to Council Regulation (EC) No 85/2006 on imports of 
salmon backbones in the Community should be repaid or remitted. The repayment or 
remission  must  be  requested  from  national  customs  authorities  in  accordance  with 
applicable national customs legislation. 

HAS ADOPTED THIS REGULATION: 

Article 1 

Article 1 (1) of Council Regulation (EC) No 85/2006 is hereby replaced by the following:  

“1. A definitive anti-dumping duty is hereby imposed on imports of farmed (other than wild) 
salmon, whether or not filleted, fresh, chilled or frozen, falling within CN codes ex 0302 12 
00,  ex  0303  11  00,  ex  0303  19  00,  ex  0303  22  00,  ex  0304  10  13  and  ex  0304  20  13 
(hereinafter  farmed  salmon)  originating  in  Norway.  Salmon  backbones,  composed  of  a 
fishbone  partly  covered  with  flesh,  being  an  edible  by-product  of  the  fishing  industry,  and 
falling within CN codes ex 0302 12 00, ex 0303 11 00, ex 0303 19 00, ex 0303 22 00, shall 

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not  be  covered  by  the  definitive  anti-dumping  duty  provided  that  the  flesh  attached  to  the 
backbone represents not more than 40% of the salmon backbone weight." 

Article 2 

For  goods  not  covered  by  Article  1(1)  of  Regulation  (EC)  No  85/2006  as  amended  by  this 
Regulation,  the  definitive  anti-dumping  duties  paid  or  entered  into  the  accounts  pursuant  to 
Article  1(1)  of  Regulation  (EC)  No  85/2006  in  its  initial  version  and  the  provisional  anti-
dumping  duties  definitively  collected  pursuant  to  Article  2  of  the  same  Regulation  shall  be 
repaid or remitted.  

Repayment and remission shall be requested from national customs authorities in accordance 
with  applicable  customs  legislation.  In  duly  justified  cases,  the  time  limit  of  three  years 
provided  in  Article  236(2)  of  Council  Regulation  (EEC)  No  2913/92  of  12  October  1992 
establishing the Community Customs Code8 shall be extended for a period of two years. 

This  Regulation  shall  enter  into  force  on  the  day  following  that  of  its  publication  in  the 
Official Journal of the European Union and shall apply retroactively from 21 January 2006. 

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 
[…] 

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OJ L 302, 19.10.1992, p.1. 

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