Commission Regulation (EC) No 131/1999 of 21 January 1999 amending Regulation (EC) No 2249/98 imposing provisional anti-dumping and countervailing duties on imports of farmed Atlantic salmon originating in Norway with regard to certain exporters and amending Commission Decision 97/634/EC accepting undertakings offered in connection with the anti-dumping and anti-subsidies proceedings concerning imports of farmed Atlantic salmon originating in Norway
L 17/12 EN Official Journal of the European Communities 22. 1. 1999 COMMISSION REGULATION (EC) No 131/1999 of 21 January 1999 amending Regulation (EC) No 2249/98 imposing provisional anti-dumping and countervailing duties on imports of farmed Atlantic salmon originating in Norway with regard to certain exporters and amending Commission Decision 97/634/EC accepting undertakings offered in connection with the anti-dumping and anti-subsidies proceedings concerning imports of farmed Atlantic salmon originating in Norway THE COMMISSION OF THE EUROPEAN COMMUNITIES, (4) 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), as last amended by Regulation (EC) No 905/98 (2), and in particular Article 8 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 not members Community (3), and in particular Article 13 thereof, of After consulting the Advisory Committee, Whereas: A. PROVISIONAL MEASURES (1) Within the framework of the anti-dumping and anti-subsidy investigations initiated by two separate notices published in the Official Journal of the European Communities (4), the Commission accepted, by Decision 97/634/EC (5) last amended by Regulation (EC) No 82/1999 (6), undertakings offered by 190 Norwegian exporters and the Kingdom of Norway. as (2) (3) The text of the undertakings provides that failure to submit a quarterly report of all sales transactions to the first unrelated customer in the Community within a prescribed time limit except in case of force majeure, would be construed as a violation of the undertaking. For the first quarter of 1998, eight Norwegian companies either did not present a report within the prescribed time limit, or did not submit any report at all. These exporters did not provide any force majeure to justify such late evidence of reporting or non-reporting. (1) OJ L 56, 6. 3. 1996, p. 1. (2) OJ L 128, 30. 4. 1998, p. 18. (3) OJ L 288, 21. 10. 1997, p. 1. (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. (6) OJ L 8, 14. 1. 1999, p. 8. (5) (6) (7) The text of the undertakings also provides that failure to comply with the obligation to sell the product concerned on the Community market at or above the minimum price stipulated in the under- taking would be construed as a violation of the undertaking. In this regard, for the fourth quarter of 1997, one Norwegian exporter appeared to have sold the product concerned to the Community market at a price which was below the price stipulated in the undertaking. In addition, one of the Norwegian exporters which failed to submit its quarterly report for the first quarter of 1998 within the time limit, also appeared to have sold the product concerned to the Community market at a price which was below the price foreseen in the undertaking The Commission therefore had reason to believe that these nine companies had breached the terms of their undertakings. Consequently, the Commission, by Regulation (EC) No 2249/98 (7), 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 nine companies listed in the Annex to that Regulation. By the same Regulation, the Commis- sion deleted the companies concerned from the Annex to Decision 97/634/EC, which listed the companies undertakings were accepted. from which B. SUBSEQUENT PROCEDURE (8) All nine 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. They were also given an opportunity to submit comments and request a hearing. (7) OJ L 282, 20. 10. 1998, p. 57. 22. 1. 1999 EN Official Journal of the European Communities L 17/13 submitted comments (9) Within the time limit set in the provisional duty Regulation, only one of the Norwegian companies concerned in writing. Following receipt of this written submission, the Commission sought and examined all information it deemed necessary for the purposes of a definitive determination violation. the Comments were also submitted by a company not subject to an undertaking concerning NorMan Trading Ltd AS. apparent on (10) Of the nine companies subject to the provisional company, Norwell AS, one measures, requested a hearing. only (11) 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 provisional duties. They were also granted a period within which to make representations subsequent to this disclosure. (12) The oral and written comments submitted by the interested parties were considered and, where deemed appropriate, in the definitive findings. taken into account C. DEFINITIVE FINDINGS (13) During the hearing, Norwell AS reiterated that the violation of its undertaking had occurred as a result of the deduction of certain credit notes, causing its average selling price to the Community to fall below the minimum import price for the last quarter of 1997. However, the company claimed mitigating circumstances in that the credit notes were issued in respect of a ‘one-off' quality claim for a consignment of fish which arrived in abnor- mally poor condition at the premises of the buyers in the Community. This poor quality of the fish resulted in the company granting significant rebates to its customers. While admitting that the effect of the credit notes has been to reduce the company’s average sales price from above the minimum import price to a level which is below that price, the company argued that, at the time when the sales price was negotiated, the issue of such credit notes for such an amount could not have been foreseen. the customs value which, (14) Credit notes for quality claims would also justify a reduction of the measure was not an undertaking but a variable duty, would lead to a proportional reduction of the applicable duties. To ensure, therefore, full equiva- lence of anti-dumping and countervailing measures whether taken in the form of duties or undertak- if ings, the Commission considered that credit notes for genuine, substantiated quality claims should not lead to a violation finding. (15) In view of the above, and with sufficient evidence now presented and verified which supports the claim of Norwell AS concerning the abnormally poor quality of this particular consigment, it is concluded that definitive measures should not be imposed on this company. (16) As regards NorMan Trading Ltd AS, against which provisional duties were imposed, it was claimed by another Norwegian company that this company ceased trading in September 1997, was wound up, and had some of its activities transferred to the company which made the submission. Accordingly, as no comments were received on the violation findings and, as the company may no longer exist, the name of this company should be removed from the list of Norwegian exporters which are exempted from the definitive anti-dumping and countervailing duties. (17) With regard to the remaining companies which failed to respect reporting obligations, as their them have claimed mentioned above, none of subsequent to disclosure that force majeure had prevented them from submitting their quarterly reports within the due period. Similarly, no further comments were received from the company which, in addition to failing to submit its report on time, also exported the product concerned to the Community at levels which were below the minimum price. Accordingly, definitive measures should be imposed against these companies. D. WITHDRAWAL OF UNDERTAKINGS (18) (19) In monitoring the undertakings submitted by the Norwegian exporters, the Commission found over a period of time that a number of exporters had no sales to the European Community for consecutive reporting quarters. On verification, some of these companies also declared that they had not exported during the reference period of the original investi- gations which led to the present anti-dumping and countervailing measures, and that they have no binding contractual obligations to do so in the near future. The Commission informed the parties concerned of these findings and pointed out that, in view of these facts, the companies did not qualify as expor- ters within the meaning of Regulation (EC) No 384/96 (hereinafter referred to as ‘the basic anti- dumping Regulation') and Regulation (EC) No 2026/97 (hereinafter referred to as ‘the basic anti- it was made subsidies Regulation'). Furthermore, L 17/14 EN Official Journal of the European Communities 22. 1. 1999 known to these parties that to maintain the under- takings in force under these circumstances would be administratively cumbersome for the Commis- sion in terms of monitoring. These parties were also informed that they could offer again, when the relevant conditions are met, an undertaking as new exporters in accordance with Article 2 of Council Regulation (EC) No 1890/97 (1) as last amended by Regulation (EC) No 2678/98 (2), and with Article 2 of Council Regula- tion (EC) No 1891/97 (3), as last amended by Regu- lation (EC) No 2678/98. Any application by these parties under those Articles would be treated expe- ditiously. With regard to 21 companies which consequently withdrew their undertakings, the Council, by Regulation (EC) No 2039/98 (4), imposed definitive anti-dumping and counter- and the vailing duties on these 98/ accordingly, Commission, 540/EC (5), amended Decision 97/634/EC. by Decision companies (20) Subsequent three more to these amendments, companies, namely Hirsholm Norge AS, Lorentz A. Lossius AS and Roger AS withdrew their under- takings In addition, having been informed of an apparent reporting violation by the Commission, another company, Fonn Egersund AS, also withdrew its undertaking. voluntarily. (21) As a result of the withdrawal of their undertakings, these four companies are not entitled to continue to benefit from an exemption to the anti-dumping and countervailing duties, and their names should therefore be removed from the list of companies from which undertakings have been accepted. (23) (24) to the provisional companies which are subject duty imposed by the provisional duty Regulation. The Annex to Decision 97/634/EC accepting undertakings in the context of the present anti- dumping and anti-subsidies proceedings should be amended to take account of the reinstatement of the undertakings given by Norwell AS, in respect of which the provisional duty should be repealed. To take account of these changes and of the above- mentioned withdrawals of undertakings, the Annex to Decision 97/634/EC listing the parties from which undertakings are being accepted, should be accordingly amended, HAS ADOPTED THIS REGULATION: Article 1 The Annex to Regulation (EC) No 2249/98 is hereby 1. replaced by Annex I. The amounts secured by way of the provisional anti- 2. dumping and countervailing duties imposed by that Regulation in relation to farmed (other than wild) Atlantic salmon falling within CN codes ex 0302 12 00 (TARIC ex 0304 10 13 (TARIC code: code: 0302 12 00*19), code: 0303 22 00 ex 0304 10 13*19), 0303 22 00*19) (TARIC code: and 0304 20 13*19) originating in Norway and exported by Norwell AS, undertaking No 128 (TARIC additional code: 8316) shall be released. 0304 20 13 (TARIC ex Article 2 E. AMENDMENT OF THE ANNEX TO DECISION 97/634/EC (22) In parallel with this Regulation, the Commission is submitting a proposal for a Council Regulation imposing definitive anti-dumping and counter- vailing duties on farmed Atlantic salmon origin- ating in Norway and exported by the other eight The Annex to Decision 97/634/EC is hereby replaced by Annex II. 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, 21 January 1999. For the Commission Leon BRITTAN Vice-President (1) OJ L 267, 30. 9. 1997, p. 1. (2) OJ L 337, 12. 12. 1998, p. 1. (3) OJ L 267, 30. 9. 1997, p. 19. (4) OJ L 263, 26. 9. 1998, p. 3. (5) OJ L 252, 12. 9. 1998, p. 68. 22. 1. 1999 EN Official Journal of the European Communities L 17/15 ANNEX I List of companies subject to provisional anti-dumping and countervailing duties Undertaking No Company name 84 86 90 117 129 149 166 177 Langfjord Laks AS Leonhard Products AS Marex AS NorMan Trading AS Notfisk Arctic AS Salomega AS Skarpsno Mat Svenodak AS TARIC additional code 8116 8423 8326 8230 8234 8260 8277 8288 L 17/16 EN Official Journal of the European Communities 22. 1. 1999 ANNEX II List of the 107 companies from which undertakings are accepted, as updated by Regulation (EC) No 131/1999 Undertaking No Company TARIC additional code 3 7 8 11 13 14 15 16 17 20 21 22 23 24 26 27 28 31 32 33 35 36 39 41 Agnefest Seafood Aqua Export A/S Aqua Partner A/S Arctic Group International Arctic 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 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 8325 8100 8101 8109 8111 8112 8113 8114 8115 8118 8119 8120 8121 8122 8124 8125 8126 8129 8130 8131 8133 8134 8136 8138 22. 1. 1999 EN Official Journal of the European Communities L 17/17 Undertaking No Company TARIC additional code 42 43 44 46 47 48 50 51 52 53 58 60 61 62 66 67 72 75 76 77 79 82 83 85 87 92 93 Edvard Johnsen A/S Eurolaks AS Euronor AS Fiskeforsyningen AS Fjord Aqua Group AS Fjord Trading Ltd AS Fossen AS Fresh Atlantic AS Fresh Marine Company AS Fryseriet AS Grieg Seafood AS Haafa fisk AS Hallvard Lerøy AS Herøy Filetfabrikk AS Hydro Seafood Sales AS Hydrotech-gruppen AS Inter Sea AS Janas AS Joh. H. Pettersen AS Johan J. Helland AS Karsten J. Ellingsen AS Labeyrie Norge AS Lafjord Group AS Leica Fiskeprodukter Lofoten Seafood Export AS Marine Seafood AS Marstein Seafood AS 8139 8140 8141 8143 8144 8145 8147 8148 8149 8150 8300 8302 8303 8304 8159 8428 8174 8177 8178 8179 8181 8184 8185 8187 8188 8196 8197 L 17/18 EN Official Journal of the European Communities 22. 1. 1999 Undertaking No Company TARIC additional code 96 99 100 101 104 105 107 108 111 112 113 114 115 116 119 120 121 122 123 124 128 130 134 137 140 141 142 Memo Food 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 Norsk Akvakultur AS Norsk Sjømat AS Northern Seafood AS Nortrade AS Norway Royal Salmon Sales AS Norway Royal Salmon AS Norwell AS Nova Sea AS Ok-Fish Kvalheim AS Pan Fish Sales AS Polar Seafood Norway AS Prilam Norvège AS Pundslett Fisk 8200 8203 8206 8207 8210 8211 8213 8214 8217 8218 8223 8227 8228 8229 8232 8233 8307 8308 8309 8312 8316 8235 8239 8242 8247 8248 8251 22. 1. 1999 EN Official Journal of the European Communities L 17/19 Undertaking No Company TARIC additional code 144 145 146 147 148 151 154 155 156 157 158 160 161 162 164 165 167 172 174 175 176 178 180 182 183 187 188 189 190 Rolf Olsen Seafood AS Ryfisk AS Rørvik Fisk- og fiskematforretning AS Saga Lax Norge AS Saga Lax Nord A/S Sangoltgruppa AS Sea Eagle Group AS Sea Star International AS Sea-Bell AS Seaco AS Seacom AS Seafood Farmers of Norway Ltd AS Seanor AS Sekkingstad AS Sirena Norway AS Kinn Salmon AS SL Fjordgruppen AS Stjernelaks AS Stolt Sea Farm AS Storm Company AS Superior 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 8254 8256 8257 8258 8259 8262 8265 8266 8267 8268 8269 8271 8272 8273 8275 8276 8278 8283 8285 8286 8287 8289 8294 8298 8317 8321 8322 8323 8324