CELEX: 51998PC0727
Language: en
Date: 1998-12-04
Title: Proposal for a Council Regulation (EC) amending Regulations (EC) No 1890/97 and (EC) No 1891/97 imposing definitive anti-dumping and countervailing duties on imports of farmed Atlantic salmon originating in Norway

COMMISSION OF THE EUROPEAN COMMUNITIES
                                               Brussels, 04.12.1998
                                               COM( 1998)727 final
                                Proposal for a
                      COUNCIL REGULATION (EC)
amending Regulations (EC) No 1890/97 and (EC) No 1891/97 imposing definitive
 anti-dumping and countervailing duties on imports of farmed Atlantic salmon
                            originating in Norway
                       (presented by the Commission)
 ---pagebreak---  ---pagebreak---                             EXPLANATORY MEMORANDUM
1. On 30 September 1997, the Council imposed, by Regulations (EC) No 1890/97 and
   (EC) No 1891/97, definitive anti-dumping and countervailing duties on imports of
   farmed Atlantic salmon from Norway, except where this product is exported by one
   of 190 Norwegian exporters from which the Commission, by Decision 97/634/EC,
   had accepted individual price undertakings.
2. On 15 August 1998, the Commission imposed, by Regulation (EC) No 1789/98,
   provisional anti-dumping and countervailing duties on three other Norwegian
   exporters, which appeared to have violated the Minimum Price provision or the
   reporting obligation of their undertakings in relation to the fourth quarter of 1997.
3. Having been given an opportunity to comment, one company which had lost its
   export licence did not react. With regard to the other two companies, it was
   confirmed that one company did not comply with its reporting obligation within the
   given deadline , while the other company admitted the price violation.
   Therefore, the Commission concluded that these companies violated their
   undertakings, which should be revoked. All parties concerned were accordingly
   informed and given an opportunity to comment.
4. Consequently, it is proposed that the Council impose definitive anti-dumping and
   countervailing duties on these three exporters.
   In accordance with Article 8 (9) of Regulation (EC) No 384/96 and with Article 13
   (9) of Regulation (EC) No 2026/97, the rate of the duties to be imposed should be
   established on the basis of the findings of the investigations, which led to the
   undertakings. In this regard, it is considered appropriate to set the rate of the
   definitive anti-dumping duty at 0.32 ECU per kilo net product weight, and the rate
   of the definitive countervailing duty at the level of 3.8%.
                                     Su.
 ---pagebreak---                             COUNCIL REGULATION (EC) No /98
                                         of 1998
  amending Regulations (EC) No 1890/97 and (EC) No 1891/97 imposing definitive
   anti-dumping and countervailing duties on imports of farmed Atlantic 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, as last amended by Regulation (EC) No 905/982 of 27 April 1998
(hereinafter referred to as "the basic Anti-dumping Regulation"), and in particular
Articles 8(9) and 9 thereof,
Having regard to Council Regulation (EC) No 2026/97 of 6 October 1997 on protection
against subsidised imports from countries not members of the European Community3
(hereinafter referred to as "the basic Anti-subsidies Regulation"), and in particular
Articles 13(9) and 15 thereof,
Having regard to the proposal submitted by the Commission after consulting the
Advisory Committee,
Whereas:
1
    OJ L 56, 6.3.1996, p. 1.
2
    OJL128, 30.4.98, p. 18.
3
    OJ L 288, 21.10.1997, p. 1.
                                               3
 ---pagebreak--- A. PROVISIONAL MEASURES
(1)     In the framework of the anti-subsidy and anti-dumping investigations initiated by
        two separate notices published in the Official Journal of the European
        Communities4, the Commission accepted, by Decision 97/634/EC5, undertakings
        offered by the Kingdom of Norway and by 190 Norwegian exporters.
(2)     In monitoring the reports received for the fourth quarter of 1997, it appeared that
        three Norwegian exporters - Icelandic Freezing Plants Norway AS, Incofood AS,
        and Ma-vo Norge AS - had made sales on the Community market below the
        minimum price stipulated in the undertaking and were therefore in breach of their
        obligations under the undertaking. When given the possibility to correct any
        possible clerical mistakes, one company made submissions showing that it had so
        far been reporting to the Commission sales to its related companies in the EC,
        instead of its resales to the first independent buyer, as required under the terms of
        the undertaking. These sales to related companies represented the overwhelming
        majority of total export sales of the product concerned to the Community made by
        this company.
4
    OJ C 235, 31. 8.1996, p. 18, and OJ C 235, 31.8.1996, p. 20.
5
    OJ L 267, 30.9.1997, p. 81, as last amended by Commission Decision 98/540/EC, OJ L 252,
    12.9.1998, p. 68.
                                            q•
 ---pagebreak--- (3)    Consequently, the Commission, by Regulation (EC) No 1789/986, hereinafter
       referred to as "the provisional duty Regulation", imposed provisional anti-
       dumping and countervailing duties on imports of farmed Atlantic Salmon falling
       within CN codes ex 0302 12 00, ex 0304 10 13, ex 0303 22 00 and ex 0304 20 13
       originating in Norway and exported by the three companies mentioned above. By
       the same Regulation, the Commission removed the companies concerned from the
       Annex to Decision 97/634/EC listing the companies, from which undertakings
       were accepted.
B. SUBSEQUENT PROCEDURE
(4)    Immediately after the imposition of the provisional duties, these three Norwegian
       companies received disclosure in writing of the essential facts and considerations,
       on the basis of which these provisional duties were imposed.
(5)    One company did not submit any comments further to the Commission's
       disclosure document. Furthermore, the company had previously informed the
       Commission that on 1 January 1998 it had returned its export licence issued by
       the Norwegian authorities.
(6)    Within the time limit set in the provisional duty Regulation, the other two
       companies submitted comments in writing and were granted a hearing.
    OJL228, 15.8.1998, p. 4.
                                         S
 ---pagebreak--- (7) Subsequent to the written submissions received, the Commission sought and
    examined all information it deemed necessary for the purpose of a definitive
    determination on the apparent violations.
(8) As regards the company having reported sales to its related parties, this further
    examination confirmed the provisional findings set out in recital (11) of the
    provisional duty Regulation. Indeed, it was established that almost the totality of
    the transactions reported for the fourth quarter of 1997 as well as those included
    in the quarterly reports submitted for the third quarter 1997, and the first and
    second quarter 1998 within the given deadlines were in fact sales to related
    companies in the EC and not to independent parties, it being the latter which
    should have been reported, in accordance with the clear terms of the undertaking.
    In reaction to the disclosure document sent after the provisional duties were
    imposed, the company claimed that it had only made a reporting error, and on 15
    September 1998 sent the Commission new reports for the third and fourth quarters
    of 1997 and for the first and second quarters of 1998. In addition, the company
    contended that the sales to first independent customers reported in the revised
    reports respected the Minimum Price provision. Thus, no injury was allegedly
    caused to the Community industry.
                                         G
 ---pagebreak--- (9)  In its undertaking, the company undertook to send the Commission, within the
     given deadlines, a confidential report of all sales transactions to the first unrelated
     customers in the Community. Furthermore, the undertaking stipulates that failure
     to submit the quarterly report as required within the prescribed time limits shall be
     considered a violation of the undertaking, except in cases of force majeure.
     Despite these clear terms, which the company was fully aware of, it only reported
     transfer sales, within the given deadlines, and thus violated its reporting
     obligation. Indeed, transfer sales do not allow any conclusions to be reached on
     the actual sales prices charged to first unrelated customers, and thus do not enable
     the Commission to monitor the undertaking.
(10) In view of the fact that the non-compliance with the explicit reporting obligations
     must be construed as a breach of the undertaking, in accordance with Article 8 (7)
     of the basic Anti-dumping Regulation and Article 13 (7) of the basic Anti-
     subsidies Regulation, it is not considered necessary to establish whether actual
     sales price levels infringed the Minimum Price provision set in the undertaking.
     Indeed, this could only have shown that, in addition to having breached the
     undertaking by reporting in a way, which prevents its effective monitoring by the
      Commission, the Minimum Price set therein might have not been respected.
                                              *
 ---pagebreak--- (11) The third company admitted that it had made a sale below the Minimum Price
     stipulated by the undertaking, this transaction representing the totality of sales of
     the presentation in question.       However, the exporter claimed that for this
     transaction, which was admitted to be a special sale intended to be made with no
     profit, the Minimum Price would have been respected if unforeseen transport
     arrangements had not resulted in an unexpectedly low sales price. It was claimed
     that the goods were shipped through a border point different from the one
     foreseen by the company, and that they were shipped on a partial instead of a full
     truck load, the higher transport costs thus incurred thereby increasing the
     deduction per kilo for transport costs within the Community made from the DDP
     price to the first independent customer, in order to obtain the Community border
     price.
      Quite apart from the difficulty of verifying such hypothetical arguments, which
      were only gradually put forward in the course of successive explanations, the
      violation seems to result from the fact that the sale was planned too close at the
      Minimum Price level, not even yielding any profit. Given the clear terms of the
      Minimum Price obligation in the undertaking, which include the deduction for
      direct selling expenses in case of DDP sales, it is incumbent upon the company to
      make sure that the Minimum Price is respected regardless of whether favourable
      transport arrangements can be made, or otherwise.
                                           8
 ---pagebreak--- C. DEFINITIVE MEASURES
(12)  The interested parties were informed of the essential facts and considerations, on
      the basis of which it was intended to confirm the withdrawal of the Commission's
      acceptance of their undertaking and to recommend the imposition of definitive
      anti-dumping and countervailing duties and the definitive collection of the
      amounts secured by way of provisional duties. The parties were also granted a
      period, within which to make representations subsequent to this disclosure.
(13)  After having duly considered the comments submitted, it is concluded that
      definitive anti-dumping and countervailing duties should be imposed on imports
      of farmed Atlantic salmon originating in Norway and exported by the companies
      listed in Annex I.
                                           9
 ---pagebreak--- (14)    The investigations which led to the undertakings were concluded by a final
        determination as to dumping and injury by Regulation (EC) No 1890/97, and by a
        final determination as to subsidisation and injury by Regulation (EC) No
        1891/977. Therefore, in accordance with Article 8(9) of the basic Anti-dumping
        regulation and Article 13(9) of the basic Anti-subsidies regulation, the rate of the
        definitive duties for the three Norwegian companies should befixedat the level of
        the duties established in those two regulations.
D. DEFINITIVE COLLECTION OF PROVISIONAL DUTIES
(15)    A breach of the undertaking has been established in relation to the three exporters
        listed in Annex I to the present Regulation. Therefore, it is considered necessary
        that the amounts secured by way of provisional anti-dumping and countervailing
        duties be definitively collected at the level of the definitive duties.
E. UPDATING OF THE LIST OF EXPORTERS EXEMPTED FROM ANTI-
DUMPING AND COUNTERVAILING DUTIES
(16)    The Annexes to Regulation (EC) No 1890/97 and Regulation (EC) No 1891/97
        exempting the parties listed therein from the duty, should be amended to remove
        that exemption from the three companies listed in Annex I to the present
        Regulation,
7
    OJ L 267, 30.9.1997, p. 1 and p. 19, Regulation as last amended by Regulation (EC) No 2052/98, OJ
    L 264, 29.9.1998, p. 17.
                                                  io
 ---pagebreak--- HAS ADOPTED THIS REGULATION:
                                          Article 1
1.      The Annex to Regulation (EC) No 1890/97 is hereby replaced by Annex II.
2.      The Annex to Regulation (EC) No 1891/97 is hereby replaced by Annex II.
                                          Article 2
The amounts secured by way of the provisional anti-dumping and countervailing duties
imposed by Regulation (EC) No 1126/98 in relation to farmed (other than wild) Atlantic
salmon falling within CN codes ex 03021200 (Taric code: 03021200*19), ex 03041013
(Taric code: 03041013*19), ex 03032200 (Taric code: 03032200*19) and ex 03042013
(Taric code: 03042013*19) originating in Norway and exported by the companies listed
in the Annex I to this Regulation shall be definitively collected.
                                          Article 3
This Regulation shall enter into force on the day following that of its publication in the
Official Journal of the European Communities. This Regulation shall be binding in its
entirety and directly applicable in all Member States.
Done at Brussels,
                                                                          For the Council
                                                                            The President
                                             \ \
 ---pagebreak---                                    ANNEXI
List of companies subject to definitive anti-dumping and countervailing duties
         UTNo                       Company                      Taric
                                                               additional
                                                                 code
           68   Icelandic Freezing Plants N. AS                  8165
           70   Incofood AS                                      8172
           89   Ma-vo Norge AS                                   8190
 ---pagebreak---                                ANNEX II
            List of companies benefiting from undertakings
UT No                     Company Name                       Taric
                                                           additional
                                                             Code
   I  A. Ovreskotnes AS                                      8095
  3   Agnefest Seafood                                       8325
  _   Xlsvig                                                 8098
  7   Aqua Export A/S                                        8100
  8   Aqua Partner A/S                                        8l01
  II  Arctic Group International                             8109
  13  Artie Superior A/S                                     8lTT
  14  Arne Mathiesen A/S                                     8H2
  15  A/S Aalesundfisk                                       8113
  16  A/S Austevoll Fiskeindustri                            8114
  _   ^g  Keco                                               8Tl5
 20   A/S Refsnes Fiskeindustri                              8118
 21   A/S West Fish Ltd                                      8l"l9
 22   Astor A/S                                              8120
 23   Atlantic King Stranda A/S                              8121
  24  Atlantic Seafood A/S                                   8122
  26  Borkowski & Rosnes A/S                                 8124
  27  Br0drene Aasjord A/S                                   8125
  28  Brodrene Eilertsen A/S                                  8126
  30  Bradrene Rem0 AS                                        8128
  31  Christiansen Partner A/S                                8129
  32  Clipper Seafood A/A                                     8130
  33  Coast Seafood A/S                                       8131
  35  Dafjord Laks A/S                                        8133
                                  43
 ---pagebreak--- UTNo                      Company Name   Taric
                                       additional
                                         Code
 36  Delfa Norge A/S                     8134
 39  Domstein Salmon A/S                 8136
 41  Ecco Fisk & Delikatesse             8138
 42  Edvard Johnsen A/S                  8139
 43  Eurolaks AS                         8140
 44  Euronor AS                          8141
 46  Fiskeforsyningen AS                 8143
 47  Fjord Aqua Group AS                 8144
 48  Fjord Trading Ltd. AS               8145
 49  Form Egersund AS
     Fonn                                8146
 50  Fossen AS                           8147
 51  Fresh Atlantic AS                   8148
 52  Fresh Marine Company AS             8149
 53  Fryseriet AS                        8150
 58  Grieg Seafood AS                    8300
 60  Haafa fisk AS                       8302
 61  Hallvard Leroy AS                   8303
 62  Heroy Filetfabrikk AS               8304
 64  Hirsholm Norge AS                   8306
 65  Hitramat & Delikatesse AS           8154
 66  Hydro Seafood Sales AS              8159
 67  Hydrotech-gruppen AS                8428
 72  Inter Sea AS                        8174
 75  Janas AS                            8177
 76  Joh. H. Pettersen AS                 8178
 77  Johan J. Helland AS                  8179
 79  Karsten J. Ellingsen AS              8181
 ---pagebreak--- UT No                     Company Name   Taric
                                       additional
                                         Code
  80  Kr. Kleiven & Co. AS               8182
  82  Labeyrie Norge AS                  8184
  83  Lafjord Group AS                   8l85
  84  Langfjord Laks AS                  8186
  85  Leica Fiskeprodukter               8187
  86  Leonhard Products AS               8423
  87  Lofoten Seafood Export AS          8188
  88  Lorentz A. Lossius AS              8189
  90  MarexAS                            8326
  92  Marine Seafood AS                  81%
  93  Marstein Seafood AS                §197
  96  Memo Food AS                       8200
  98  Midsundfisk AS                     8202
  99  Myre Sjomat AS                     8203
 100  Naco Trading AS                    8206
 iol  Namdal Salmon AS                   8207
 104  Nergard AS                         8210
 f05  NilsWilliksenAS                    82H
 107  Nisja Trading AS                   8213
 108  Nor-Food AS                        8214
 TTl  Nordic Group ASA                   82T7
 lT_  Nordreisa Laks AS                  8218
 Fi3  Norexport AS                       8223
 114  NorfiProdukterAS                   8227
 Fl5  Norfood Group AS                   8228
 H6   Norfra Eksport AS                  8229
 H7   NorMan Trading Ltd AS              8230
                              45
 ---pagebreak--- UT No                      Company Name          Taric
                                               additional
                                                 Code
  119 Norsk Akvakultur AS                        8232
  120 Norsk Sjomat AS                       '    8233
  121 Northern Seafood AS             [          8307
  122 Nortrade AS                                8308
  123 Norway Royal Salmon Sales AS               8309
 "T_4 Norway Royal Salmon AS                     8312
  126 Norway Seafoods ASA                        83H
  128 Norwell AS                                 8316
  129 Notfisk Arctic AS                          8234
  130 Nova Sea AS                                8235
                                             :
  134 Ok-FishKvalheimAS                          8239
  137 Pan Fish Sales AS                          8242
  140 Polar Seafood Norway AS                    8247
  141 Prilam Norvege AS                          8248
  142 Pundslett Fisk                              8251
  143 Roger AS       '.                           8253
  144 RolfOlsen Seafood AS                        8254
  L45 Ryfisk AS                 '                 8256
  146 Rjarvik Fisk-og fiskematforretning AS       8257
  147 Saga Lax Norge AS                           8258
  148 Saga Lax Nord A/S                           8259
  149 Salomega AS                                 8260
  151 Sangoltgruppa AS                            8262
  153 Scanfood AS                                 8264
  154 Sea Eagle Group AS                          8265
  155 Sea Star International AS                   8266
  156 Sea-Bell AS                                 8267
                                 (G
 ---pagebreak--- UTNo                      Company Name   Taric
                                       additional
                                         Code
 157 Seaco AS                            8268
 158 Seacom AS                           8269
 159 Seacom Nord AS                      8270
 160 Seafood Farmers of Norway Ltd AS    8271
 161 Seanor AS                           8272
 162 Sekkingstad AS                      8273
 164 Sirena Norway AS                    8275
 165 Kinn Salmon AS                      8276
 166 Skarpsno Mat                        8277
 167 SL Fjordgruppen AS                  8278
 168 SMP Marine Produkter AS             8279
 171 Stavanger Rokeri AS                 8282
 172 Stjernelaks AS                      8283
 174 Stolt Sea Farm AS                   8285
 175 Storm Company AS                    8286
 176 Superior AS                         8287
 177 Svenodak AS                         8288
 178 Terra Seafood AS                    8289
 180 Timar Seafood AS                    8294
 182 Torris Products Ltd. AS             8298
 183 Troll Salmon AS                     8317
 187 Vie de France Norway AS             8321
 188 Vikenco AS                          8322
 189 Wannebo International AS            8323
 190 West Fish Norwegian Salmon AS       8324
 191 Nor-Fa Food AS                      8102
 ---pagebreak---  ---pagebreak---                                                                  ISSN 0254-1475
                                                            COM(98) 727 final
                                              DOCUMENTS
EN                                                            03 02 11 01
                                    Catalogue number : CB-CO-98-727-EN-C
Office for Official Publications of the European Communities
L-2985 Luxembourg
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