Proposal for a Council Regulation (EC) further 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, 14. 09. 1998 COM(1998)531final Proposal for a COUNCIL REGULATION (EC) further 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. By Regulations (EC) No 1890/97 and (EC) No 1891/97, the Council imposed 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. By Regulation (EC) No 772/98, the Council amended on 9 April 1998 the above Regulations to impose definitive anti-dumping and countervailing duties on 24 Norwegian exporters which had been found to have violated their undertakings in relation to the first reporting quarter (third quarter 1997). 3. The Commission, by Regulation (EC) No 1126/98, imposed provisional anti dumping and countervailing duties on twelve exporters, which had failed to respect their reporting obligations for the fourth quarter of 1997. Having been given an opportunity to comment immediately after the imposition of these duties, none of the companies concerned was able to provide any evidence of force majeure for its late reporting or lack of it. 4. Thercrore, 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, without that leading the Commission to change its findings. 5. Consequently, for the twelve companies having violated their undertakings, definitive anti-dumping and countervailing duties should be imposed. 6. 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 definitive anti-dumping and countervailing duty 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%. % COUNCIL REGULATION (EC) No /98 of further 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, 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, 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 OJL 56, 6. 3. 1996, p. I. 2 OJL 128, 30. 4. 98, p. 18. 3 OJ L 288, 21. 10. 1997, p. 1 A. PROVISIONAL MEASURES ( I ) In (he framework of the anti-dumping and anti-subsidy 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) The text of the undertakings specifically provides that failure to comply with the reporting obligations and, in particular, failure to submit the quarterly report within the prescribed time-limit except in case of force majeure, would be construed as a violation of the undertaking. (3) For the fourth quarter of 1997, twelve Norwegian exporters failed to comply with their obligation to present a report within the prescribed time limit or did not submit any report at all. These exporters did not provide any evidence of force majeure to justify such late reporting or non-reporting. On this basis, the Commission had reasons to believe that these companies had breached the terms of their undertakings. (4) Consequently, the Commission, by Regulation (EC) No 1126/986, 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 twelve companies listed in the Annex to that Regulation. By the same Regulation, the Commission deleted the companies concerned from the Annex to Decision 97/634/EC listing the companies, from which undertakings were accepted. 4 OJ C 235, 31. 8. 1996, p. 18, and OJ C 235, 31. 8. 1996, p. 20. 5 OJL267, 30. 9. 1997, p. 81. 6 OJL 157, 30. 5. 1998, p. 82. B. SUBSEQUENT PROCEDURE (5) All twelve Norwegian companies subject to the provisional duties received disclosure in writing concerning the essential facts and considerations, on the basis of which these provisional duties were imposed. (6) Within the time limit set in the provisional duty Regulation, some of the Norwegian companies concerned submitted comments in writing. (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) None of the companies, which failed to respect their reporting obligations, submitted any valid evidence of force majeure as would have been necessary under the terms of the undertaking in order to lawfully justify such failure. In the absence of specific provisions in this regard in Regulation (EC) No 384/96, hereinafter referred to as the "basic Anti-dumping regulation", and in Regulation (EC) No 2026/97, hereinafter referred to as the "basic Anti-subsidies regulation", and in accordance with the case law of the Court of Justice, the justification invoked by each company as circumstances constituting force majeure can only be recognised as such where the failure was the inevitable result of an extraneous cause which could not reasonably have been foreseen or pre-empted and made it objectively impossible for the company concerned to comply with its obligations. In this regard, all circumstances invoked by the parties concerned, e. g. the illness of staff members for a few days, or the intense activity of other fish productions, cannot be considered as circumstances constitutingyôrce majeure. (9) Two out of the twelve exporters listed in Annex I, i. e. Gigante Fiskekroken AS and Melands Rokeri Eftf. AS7, have notified the Commission that they have changed their names and requested that the newly named companies be allowed to enter new undertakings as newcomers. However, the Commission is of the view that a simple change of name of a company is not sufficient to bring a party within the scope of Article 2 of Regulation (EC) No 1890/978 and Article 2 of Regulation (EC) No 1891/979. C. DEFINITIVE MEASURES ( 10) 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. They were also granted a period, within which to make representations subsequent to this disclosure. (11) In view of 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. (12) 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 1891/97. 7 The new names are Gigante Sild AS and Kokespesialisten AS, respectively. 8 OJ L 267, 30. 9. 1997, p. I as last amended by Regulation (HC) No /98, OJ L of. 1998, p. 0 OJ L 267, 30. 9. 1997, p. 19 as last amended by Regulation (EC) No /98, OJ I. of. 1998, p. 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 twelve Norwegian companies should be fixed at the level of the duties established in those two regulations. D. DEFINITIVE COLLECTION OF PROVISIONAL DUTIES (13) A breach of undertaking has been established in relation to the twelve exporters having violated their undertakings. 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. (14) The Annexes to Regulation (EC) No 1890/97 and Regulation (EC) No 1891/97, as last amended by Regulation (EC) No /98, exempting the parties listed therein from the duty, should be amended to remove that exemption from the twelve companies listed in Annex I to the present Regulation, 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 Luxembourg, For the Council The President ANNEXI List of companies subject to definitive anti-dumping and countervailing duties UT No Company Name Taric additional Ï9 A/S Nortraders Ltd 45 Fader Martin AS 55 Gigante Fiskekroken AS 59 Gunnar Klo AS 71 Inter Road AS 95 Melands Rokeri Eftf. AS 106 Niscan Corporation AS ÎÔ9 Nor-Trade International Ï25 Norway Seafarms AS 136 Oster Sea Products AS 138 Pero Food AS Ï86 VestAgenturAS code 8ÎÏ7 8142 8152 8301 8173 8199 8212 82Ï5 83Ï3 8241 8243 8320 ANNEX II List of companies benefiting from undertakings UTNo Company Name Taric additional Code 1 3 5 7 8 11 13 14 15 16 17 20 21 22 23 24 26 27 28 30 31 32 33 35 36 A. Ovreskotnes AS Agnefest Seafood Alsvag Fiskeprodukter A/S 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 A/SKeco "~ " ~ 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 Bradrene Aasjord A/S Bradrene Eilertsen A/S Brodrene Remo A/S Christiansen Partner A/S Clipper Seafood A/A Coast Seafood A/S Dafjord Laks A/S DelfaNorgeA/S ~"~~ 8095 8325 8098 8100 8101 8109 8111 8112. __ Tfi4 — —- Jm "si\9 "8120 "8121 "8122 8124 8125 8126 8128 8129 8130 8131 8133 8134 UTNo Company Name Taric additional Code 39 41 42 43 44 46 47 48 49 50 51 52 53 58 60 61 62 64 65 66 67 68 70 72 75 76 77 79 Domstein Salmon A/S Ixco Fisk & Delikatesse lidvard Johnsen A/S Eurolaks AS Euronor AS Fiskeforsyningen AS Fjord Aqua Group AS Fjord Trading Ltd. AS Fonn Egersund AS Fossen AS Fresh Atlantic AS Fresh Marine Company AS Fryseriet AS Grieg Seafood AS Haafa fisk AS Hallvard Leroy AS Heray Filetfabrikk AS Hirsholm Norge AS Hitramat & Delikatesse AS Hydro Seafood Sales AS Hydrotech-gruppen AS Icelandic Freezing Plants N. AS Incofood AS Inter Sea AS Janas AS Joh. H. Pettersen AS Johan J. Helland AS Karsten J. Ellingsen AS 8136 8138 8139 8140 8141 8143 8144 8145 8146 8147 8148 8149 8150 8300 8302 8303 8304 8306 8154 8159 8428 8165 8172 8174 8177 8178 8179 8181 UTNo Company Name 80 82 83 84 85 86 87 88 89 90 92 93 96 98 99 100 101 104 105 107 108 111 112 113 114 115 116 117 Kr. Klcivcn & Co. AS Labeyrie Norge AS Lafjord Group AS Langfjord Laks AS Leica Fiskeprodukter Leonhard Products AS Lofoten Seafood Export AS Lorentz A. Lossius AS Ma-vo Norge AS Marex AS Marine Seafood AS Marstein Seafood AS Memo Food AS Midsundfisk AS Myre Sjomat AS Naco Trading AS Namdal Salmon AS Nergard AS Nils Williksen AS Nisja Trading AS Nor-Food AS Nordic Group ASA Nordreisa Laks AS Norexport AS Norfi Produkter AS Norfood Group AS Norfra Eksport AS NorMan Trading Ltd. AS Taric additional Code 8182 8184 8185 8186 8187 8423 8188 8189 8190 8326 Tl96~~ __ 8200 8202 8203 8206 8207 8210 8211 8213" 8214 8217 8218 8223 8227 8228 8229 8230 UTNo Company Name 119 120 121 122 123 124 126 128 129 130 134 137 140 141 142 143 144 145 146 147 148 149 151 153 154 155 156 157 Norsk Akvakultur AS Norsk SJ0mat AS Northern Seafood AS Nortrade AS Norway Royal Salmon Sales AS Norway Royal Salmon AS Norway Seafoods ASA Norwell AS Notfisk Arctic AS Nova Sea AS Ok-Fish Kvalheim AS 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 n Sangoltgruppa AS Scanfood AS Sea Eagle Group AS Sea Star International AS Sea-Bell AS Seaco AS. __. Taric additional Code 8232 8233 8307 8308~ 8309 8312 8314 8316 8234 8235 8239 8242 8247" 8248 8251 8253 8254 8256 8257 8258 8259 8260 8262 8264 8265 8266" 8267 8268 UTNo Company Name Taric additional Code 158 159 160 161 162 164 165 166 167 168 171 172 174 175 176 177 178 180 182 183 187 188 189 190 191 Seacom AS Seacom Nord AS Seafood Farmers of Norway Ltd AS Searior AS Sekkingstad AS Sirena Norway AS Kinn Salmon AS Skarpsno Mat SL Fjordgruppen AS SMP Marine Produkter AS Stavanger R0keri AS Stjernelaks AS Stolt Sea Farm AS Storm Company AS Superior AS Svenodak AS Terra Seafood AS Timar Seafood AS Torris Products Ltd. AS Troll Salmon AS Vie de France Norway AS Vikenco AS Wannebo International AS West Fish Norwegian Salmon AS Nor-Fa Food AS 8269 8270 8271 8272 8273 "8275" 8276 8277 8278 8279 8282 8283 8285" 8286 8287 8288 8289 8294 8298 8317 8321 8322 8323 8324 8102 ISSN 0254-1475 COM(98) 531 final DOCUMENTS EN 03 02 11 Catalogue number : CB-C0-98-536-EN-C ISBN 92-78-39233-2 Office for Official Publications of the European Communities I. -2985 Luxembourg