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) 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. 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 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 • (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 (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 (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. * (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 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 (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 be fixed at 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 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 \\ ANNEXI ANNEXI ANNEXI List of companies subject to definitive anti-dumping and countervailing duties List of companies subject to definitive anti-dumping and countervailing duties List of companies subject to definitive anti-dumping and countervailing duties UTNo UTNo UTNo Company Company Company 68 68 68 70 70 70 89 89 89 Icelandic Freezing Plants N. AS Icelandic Freezing Plants N. AS Icelandic Freezing Plants N. AS Incofood AS Incofood AS Incofood AS Ma-vo Norge AS Ma-vo Norge AS Ma-vo Norge AS Taric Taric Taric additional additional additional code code code 8165 8165 8165 8172 8172 8172 8190 8190 8190 ANNEX II List of companies benefiting from undertakings UT No Company Name Taric additional I 3 _ 7 8 II 13 14 15 16 _ 20 21 22 23 24 26 27 28 30 31 32 33 35 A. Ovreskotnes AS Agnefest Seafood Xlsvig Aqua Export A/S Aqua Partner A/S Arctic Group International Artie Superior A/S Arne Mathiesen A/S A/S Aalesundfisk A/S Austevoll Fiskeindustri ^g K e co A/S Refsnes Fiskeindustri A/S West Fish Ltd Astor A/S Atlantic King Stranda A/S Atlantic Seafood A/S Borkowski & Rosnes A/S Br0drene Aasjord A/S Brodrene Eilertsen A/S Bradrene Rem0 AS Christiansen Partner A/S Clipper Seafood A/A Coast Seafood A/S Dafjord Laks A/S 43 Code 8095 8325 8098 8100 8l01 8109 8lTT 8H2 8113 8114 8Tl5 8118 8l"l9 8120 8121 8122 8124 8125 8126 8128 8129 8130 8131 8133 UTNo UTNo UTNo Company Name Company Name Company Name Taric Taric Taric additional additional additional 36 36 36 39 39 39 41 41 41 42 42 42 43 43 43 44 44 44 46 46 46 47 47 47 48 48 48 49 49 49 50 50 50 51 51 51 52 52 52 53 53 53 58 58 58 60 60 60 61 61 61 62 62 62 64 64 64 65 65 65 66 66 66 67 67 67 72 72 72 75 75 75 76 76 76 77 77 77 79 79 79 Delfa Norge A/S Delfa Norge A/S Delfa Norge A/S Domstein Salmon A/S Domstein Salmon A/S Domstein Salmon A/S Ecco Fisk & Delikatesse Ecco Fisk & Delikatesse Ecco Fisk & Delikatesse Edvard Johnsen A/S Edvard Johnsen A/S Edvard Johnsen A/S Eurolaks AS Eurolaks AS Eurolaks AS Euronor AS Euronor AS Euronor AS Fiskeforsyningen AS Fiskeforsyningen AS Fiskeforsyningen AS Fjord Aqua Group AS Fjord Aqua Group AS Fjord Aqua Group AS Fjord Trading Ltd. AS Fjord Trading Ltd. AS Fjord Trading Ltd. AS Fonn Egersund AS Form Egersund AS Fonn Egersund AS Fossen AS Fossen AS Fossen AS Fresh Atlantic AS Fresh Atlantic AS Fresh Atlantic AS Fresh Marine Company AS Fresh Marine Company AS Fresh Marine Company AS Fryseriet AS Fryseriet AS Fryseriet AS Grieg Seafood AS Grieg Seafood AS Grieg Seafood AS Haafa fisk AS Haafa fisk AS Haafa fisk AS Hallvard Leroy AS Hallvard Leroy AS Hallvard Leroy AS Heroy Filetfabrikk AS Heroy Filetfabrikk AS Heroy Filetfabrikk AS Hirsholm Norge AS Hirsholm Norge AS Hirsholm Norge AS Hitramat & Delikatesse AS Hitramat & Delikatesse AS Hitramat & Delikatesse AS Hydro Seafood Sales AS Hydro Seafood Sales AS Hydro Seafood Sales AS Hydrotech-gruppen AS Hydrotech-gruppen AS Hydrotech-gruppen AS Inter Sea AS Inter Sea AS Inter Sea AS Janas AS Janas AS Janas AS Joh. H. Pettersen AS Joh. H. Pettersen AS Joh. H. Pettersen AS Johan J. Helland AS Johan J. Helland AS Johan J. Helland AS Karsten J. Ellingsen AS Karsten J. Ellingsen AS Karsten J. Ellingsen AS Code Code Code 8134 8134 8134 8136 8136 8136 8138 8138 8138 8139 8139 8139 8140 8140 8140 8141 8141 8141 8143 8143 8143 8144 8144 8144 8145 8145 8145 8146 8146 8146 8147 8147 8147 8148 8148 8148 8149 8149 8149 8150 8150 8150 8300 8300 8300 8302 8302 8302 8303 8303 8303 8304 8304 8304 8306 8306 8306 8154 8154 8154 8159 8159 8159 8428 8428 8428 8174 8174 8174 8177 8177 8177 8178 8178 8178 8179 8179 8179 8181 8181 8181 UT No Company Name Taric additional 80 82 83 84 85 86 87 88 90 92 93 96 98 99 100 iol 104 f05 107 108 TTl lT_ Fi3 114 Fl5 H6 H7 Kr. Kleiven & Co. AS Labeyrie Norge AS Lafjord Group AS Langfjord Laks AS Leica Fiskeprodukter Leonhard Products AS Lofoten Seafood Export AS Lorentz A. Lossius AS MarexAS Marine Seafood AS Marstein Seafood AS Memo Food AS Midsundfisk AS Myre Sjomat AS Naco Trading AS Namdal Salmon AS Nergard AS NilsWilliksenAS Nisja Trading AS Nor-Food AS Nordic Group ASA Nordreisa Laks AS Norexport AS NorfiProdukterAS Norfood Group AS Norfra Eksport AS NorMan Trading Ltd AS 45 Code 8182 8184 8l85 8186 8187 8423 8188 8189 8326 8 1% §197 8200 8202 8203 8206 8207 8210 82H 8213 8214 82T7 8218 8223 8227 8228 8229 8230 UT No Company Name Taric additional 119 120 121 122 123 Norsk Akvakultur AS Norsk Sjomat AS Northern Seafood AS [ Nortrade AS Norway Royal Salmon Sales AS "T_4 Norway Royal Salmon AS 126 128 129 130 134 137 140 141 142 143 144 L45 146 147 148 149 151 153 154 155 156 Norway Seafoods ASA Norwell AS Notfisk Arctic AS Nova Sea AS Ok-FishKvalheimAS Pan Fish Sales AS Polar Seafood Norway AS Prilam Norvege AS Pundslett Fisk Roger AS '. RolfOlsen Seafood AS Ryfisk AS ' Rjarvik Fisk-og fiskematforretning AS Saga Lax Norge AS Saga Lax Nord A/S Salomega AS Sangoltgruppa AS Scanfood AS Sea Eagle Group AS Sea Star International AS Sea-Bell AS (G ' : Code 8232 8233 8307 8308 8309 8312 83H 8316 8234 8235 8239 8242 8247 8248 8251 8253 8254 8256 8257 8258 8259 8260 8262 8264 8265 8266 8267 UTNo UTNo UTNo Company Name Company Name Company Name Taric Taric Taric additional additional additional Code Code Code 157 157 157 158 158 158 159 159 159 160 160 160 161 161 161 162 162 162 164 164 164 165 165 165 166 166 166 167 167 167 168 168 168 171 171 171 172 172 172 174 174 174 175 175 175 176 176 176 177 177 177 178 178 178 180 180 180 182 182 182 183 183 183 187 187 187 188 188 188 189 189 189 190 190 190 191 191 191 Seaco AS Seaco AS Seaco AS Seacom AS Seacom AS Seacom AS Seacom Nord AS Seacom Nord AS Seacom Nord AS Seafood Farmers of Norway Ltd AS Seafood Farmers of Norway Ltd AS Seafood Farmers of Norway Ltd AS Seanor AS Seanor AS Seanor AS Sekkingstad AS Sekkingstad AS Sekkingstad AS Sirena Norway AS Sirena Norway AS Sirena Norway AS Kinn Salmon AS Kinn Salmon AS Kinn Salmon AS Skarpsno Mat Skarpsno Mat Skarpsno Mat SL Fjordgruppen AS SL Fjordgruppen AS SL Fjordgruppen AS SMP Marine Produkter AS SMP Marine Produkter AS SMP Marine Produkter AS Stavanger Rokeri AS Stavanger Rokeri AS Stavanger Rokeri AS Stjernelaks AS Stjernelaks AS Stjernelaks AS Stolt Sea Farm AS Stolt Sea Farm AS Stolt Sea Farm AS Storm Company AS Storm Company AS Storm Company AS Superior AS Superior AS Superior AS Svenodak AS Svenodak AS Svenodak AS Terra Seafood AS Terra Seafood AS Terra Seafood AS Timar Seafood AS Timar Seafood AS Timar Seafood AS Torris Products Ltd. AS Torris Products Ltd. AS Torris Products Ltd. AS Troll Salmon AS Troll Salmon AS Troll Salmon AS Vie de France Norway AS Vie de France Norway AS Vie de France Norway AS Vikenco AS Vikenco AS Vikenco AS Wannebo International AS Wannebo International AS Wannebo International AS West Fish Norwegian Salmon AS West Fish Norwegian Salmon AS West Fish Norwegian Salmon AS Nor-Fa Food AS Nor-Fa Food AS Nor-Fa Food AS 8268 8268 8268 8269 8269 8269 8270 8270 8270 8271 8271 8271 8272 8272 8272 8273 8273 8273 8275 8275 8275 8276 8276 8276 8277 8277 8277 8278 8278 8278 8279 8279 8279 8282 8282 8282 8283 8283 8283 8285 8285 8285 8286 8286 8286 8287 8287 8287 8288 8288 8288 8289 8289 8289 8294 8294 8294 8298 8298 8298 8317 8317 8317 8321 8321 8321 8322 8322 8322 8323 8323 8323 8324 8324 8324 8102 8102 8102 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 42