Council Regulation (EC) No 2678/98 of 10 December 1998 amending Regulation (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
12. 12. 98 EN Official Journal of the European Communities L 337/1 I (Acts whose publication is obligatory) COUNCIL REGULATION (EC) No 2678/98 of 10 December 1998 amending Regulation (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, (2) 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 the European Community (1), (hereinafter referred to as ‘the basic anti- dumping Regulation'), and in particular Article 8(9) and Article 9 thereof, not members of Having regard to Council Regulation (EC) No 2026/97 of 6 October 1997 on protection against subsidised imports from countries the European Community (2) (hereinafter referred to as ‘the basic anti- subsidies Regulation'), and in particular Article 13(9) and Article 15 thereof, not members of Having regard to the proposal submitted by the Commis- sion after consulting the Advisory Committee, Whereas: A. PROVISIONAL MEASURES (1) In the framework of the anti-subsidy and anti- dumping investigations initiated by two separate notices published in the Offical Journal of the the Commission European accepted, by Decision 97/634/EC (4), undertaking offered by the Kingdom of Norway and by 190 Norwegian exporters. Communities (3), (1) OJ L 56, 6. 3. 1996, p. 1. Regulation as last amended by Regulation (EC) No 905/98 (OJ L 128, 30. 4. 1998, p. 18). (2) OJ L 288, 21. 10. 1997, p. 1. (3) OJ C 235, 31. 8. 1996, p. 18, and OJ C 235, 31. 8. 1996, p. 20. (4) OJ L 267, 30. 9. 1997, p. 81. Decision as last amended by Regulation (EC) No 2249/98 (OJ L 282, 20. 10. 1998, p. 57). 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 Community, 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. (3) Consequently, the Commission, by Regulation (EC) No 1789/98 (5), hereinafter referred to as ‘the provi- sional 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 com- panies concerned from the Annex to Decision 97/ 634/EC listing the companies from which under- takings were accepted. B. SUBSEQUENT PROCEDURE (4) Immediately after the imposition of the provisional duties, these three Norwegian companies received disclosure in writing of facts and considerations, on the basis of which these provi- sional duties were imposed. the essential (5) OJ L 228, 15. 8. 1998, p. 4. L 337/2 EN Official Journal of the European Communities 12. 12. 98 (5) submit any comments One company did not further to the Commission’s disclosure document. Furthermore, previously informed the Commission that on 1 January 1998 it had returned its export licence issued by the Norwegian authorities. company had the (6) Within the time limit set in the provisional duty Regulation, the other two companies submitted comments in writing and were granted a hearing. (10) explicit reporting obligations must the undertaking, In view of the fact that the non-compliance with be the construed as a breach of in accordance with Article 8(7) of the basic anti- dumping Regulation and Article 13(7) of the basic Anti-subsidies Regulation, 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 in addition to having breached the shown that, undertaking by reporting in a way which prevents its effective monitoring by the Commission, the minimum price set therein might have not been respected. it 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. (11) (7) (8) (9) to independent parties, 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 estab- lished 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 of 1997, and the first and second quarter of 1998 within the given deadlines were in fact sales to related companies in the Community and not it being the latter which should have been reported, in accordance with the clear terms of the under- taking. In reaction to the disclosure document sent after the the provisional duties were imposed, company claimed that it had only made a reporting error and on 15 September 1998 sent the Commis- sion 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 provi- sion. Thus, it was alleged no injury was caused to the Community industry. In its undertaking, the company undertook to send the Commission, within the given deadlines, a confidential report of all sales transactions to the in the Community. first unrelated customers 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, of which the company was fully aware, 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. this The third company admitted that it had made a sale below the minimum price stipulated by the transaction representing the undertaking, totality of sales of the presentation in question. However, the exporter claimed that for this transac- tion, 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 the higher transport costs thus incurred thereby increasing the deduction per kilo for transport costs within the Community made from the delivered duty paid (DDP) price to the first independent customer, in order to obtain the Community border price. truck load, Quite apart from the difficulty of verifying such hypothetical arguments, which were only gradually put forward in the course of successive explana- tions, the breach seems to result from the fact that the sale was planned too close to 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 respected regardless of the minimum price is whether favourable transport arrangements can be made, or otherwise. C. DEFINITIVE MEASURES (12) The interested parties were informed of the essen- tial 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 defin- itive collection of the amounts secured by way of 12. 12. 98 EN Official Journal of the European Communities L 337/3 provisional duties. The parties were also granted a period, within which to make representations subsequent to this disclosure. (13) After having duly it considered the comments is concluded that definitive anti- submitted, dumping and countervailing duties should be imposed on imports of farmed Atlantic salmon originating in Norway and exported by the com- panies listed in Annex I. (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 (1), and by a final determination as to subsidisa- tion and injury by Regulation (EC) No 1891/97 (2). 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 com- panies should be fixed at the level of the duties established in those two Regulations. D. DEFINITIVE COLLECTION OF PROVI- SIONAL DUTIES (15) A breach of the undertaking has been established in relation to the three exporters listed in Annex I to this Regulation. Therefore, is considered it the amounts secured by way of necessary that provisional anti-dumping and countervailing duties be definitively collected at the level of the defin- itive duties. (16) E. UPDATING OF THE LIST OF EXPORTERS EXEMPTED FROM ANTI-DUMPING AND COUNTERVAILING DUTIES 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 this Regulation, HAS ADOPTED THIS REGULATION: Article 1 The Annex to Regulation (EC) No 1890/97 is hereby 1. replaced by Annex II to this Regulation. The Annex to Regulation (EC) No 1891/97 is hereby 2. replaced by Annex II to this Regulation. Article 2 The amounts secured by way of the provisional anti- dumping and countervailing duties imposed by Regula- tion (EC) No 1126/98 in relation to farmed (other than wild) Atlantic salmon falling within CN codes ex 0302 12 00 (Taric code: 0302 12 00 * 19), ex 0304 10 13 (Taric code: 0304 10 13 * 19), ex 0303 22 00 (Taric code: 0303 22 00 * 19) code: 0304 20 13 * 19) originating in Norway and exported by the companies listed in Annex I to this Regulation shall be definitively collected. 0304 20 13 (Taric and ex Article 3 This Regulation shall enter into force on the day following 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, 10 December 1998. For the Council The President W. SCHÜSSEL (1) OJ L 267, 30. 9. 1997, p. 1. Regulation as last amended by Regulation (EC) No 2052/98 (OJ L 264, 29. 9. 1998, p. 17). (2) OJ L 267, 30. 9. 1997, p, 19. Regulation as last amended by Regulation (EC) No 2052/98 (OJ L 264, 29. 9. 1998, p. 17). L 337/4 EN Official Journal of the European Communities 12. 12. 98 ANNEX I LIST OF COMPANIES SUBJECT TO DEFINITIVE ANTI-DUMPING AND COUNTER- VAILING DUTIES UT No 68 70 89 Company Icelandic Freezing Plants N. AS Incofood AS Ma-vo Norge AS Taric additional code 8165 8172 8190 12. 12. 98 EN Official Journal of the European Communities L 337/5 ANNEX II LIST OF COMPANIES BENEFITING FROM UNDERTAKINGS UT No 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 39 41 42 43 44 46 47 48 49 50 51 52 53 58 60 61 62 64 65 66 A. Øvreskotnes AS Agnefest Seafood Alsvåg Aqua Export A/S Aqua Partner A/S Arctic Group International Artic Superior A/S Arne Mathiesen A/S A/S Aalesundfisk A/S Austevoll Fiskeindustri A/S Keco 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 Brødrene Aasjord A/S Brødrene Eilertsen A/S Brødrene Remø AS Christiansen Partner A/S Clipper Seafood A/A Coast Seafood A/S Dafjord Laks A/S Delfa Norge A/S Domstein Salmon A/S Ecco Fisk & Delikatesse Edvard Johnson 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 Lerøy AS Herøy Filetfabrikk AS Hirsholm Norge AS Hitramat & Delikatesse AS Hydro Seafood Sales AS 8095 8325 8098 8100 8101 8109 8111 8112 8113 8114 8115 8118 8119 8120 8121 8122 8124 8125 8126 8128 8129 8130 8131 8133 8134 8136 8138 8139 8140 8141 8143 8144 8145 8146 8147 8148 8149 8150 8300 8302 8303 8304 8306 8154 8159 L 337/6 EN Official Journal of the European Communities 12. 12. 98 UT No Company name Taric additional code 67 72 75 76 77 79 80 82 83 84 85 86 87 88 90 92 93 96 98 99 100 101 104 105 107 108 111 112 113 114 115 116 117 119 120 121 122 123 124 126 128 129 130 134 137 140 141 142 143 144 Hydrotech-gruppen AS Inter Sea AS Janas AS Joh. H. Pettersen AS Johan J. Helland AS Karsten J. Ellingsen AS 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 Marex AS Marine Seafood AS Marstein Seafood AS Memo Food AS Midsundfisk AS Myre Sjømat AS Naco Trading AS Namdal Salmon AS Nergård 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 Norsk Akvakultur AS Norsk Sjømat 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 Norvège AS Pundslett Fisk Roger AS Rolf Olsen Seafood AS 8428 8174 8177 8178 8179 8181 8182 8184 8185 8186 8187 8423 8188 8189 8326 8196 8197 8200 8202 8203 8206 8207 8210 8211 8213 8214 8217 8218 8223 8227 8228 8229 8230 8232 8233 8307 8308 8309 8312 8314 8316 8234 8235 8239 8242 8247 8248 8251 8253 8254 12. 12. 98 EN Official Journal of the European Communities L 337/7 UT No Company name 145 146 147 148 149 151 153 154 155 156 157 158 159 160 161 162 164 165 166 167 168 171 172 174 175 176 177 178 180 182 183 187 188 189 190 191 Ryfisk AS Rørvik 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 Seaco AS Seacom AS Seacom Nord AS Seafood Farmers of Norway Ltd AS Seanor AS Sekkingstad AS Sirena Norway AS Kinn Salmon AS Skarpsno Mat SL Fjordgruppen AS SMP Marine Produkter AS Stavanger Røkeri 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 Taric additional code 8256 8257 8258 8259 8260 8262 8264 8265 8266 8267 8268 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