CEU, August 27, 1999, No 1895-1999

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 Community(1), 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 Community(2), and in particular Articles 13(9) and 15 thereof,

Having regard to the proposal submitted by the Commission after consulting the Advisory Committee,

Whereas:

A. PROVISIONAL DUTIES

(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(3), the Commission accepted, by Decision 97-634-EC(4), undertaking offered by the Kingdom of Norway and by 190 Norwegian exporters.

(2) The text of the undertakings provides that failure to submit a quaterly report of all sales transactions to the first unrelated customer in the Community within a prescribed time limit except in the case of force majeure would be construed as a violation of the undertaking, as would non-compliance with the obligation to sell the product concerned on the Community market at or above the minimum prices foreseen in the undertaking.

(3) For the third quarter of 1998, one Norwegian company did not present a report within the prescribed time limit, another Norwegian exporter appeared to have sold the product concerned to the Community market at a price which was below the price envisaged in its undertaking. Two other exporters appeared to have made misleading declarations as to the identity of the exporter and the identity and nature of the sales reported.

(4) The Commission therefore had reason to believe that these four companies had breached the terms of their undertakings and consequently, by Regulation (EC) No 929-1999(5), (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 four companies listed in Annex II to that Regulation. By the same Regulation, the Commission deleted the companies concerned from the Annex to Decision 97-634-EC, which listed the companies from which undertaking were accepted.

B. SUBSEQUENT PROCEDURE

(5) All four 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.

(6) Within the time limit set in the provisional duty Regulation, all the Norwegian companies concerned submitted comments in writing and one request a hearing, which was granted. Following these submissions, the Commission sought and examined all information it deemed necessary for the purpose of a definitive determination on the apparent violations.

(7) In this regard the Commission's investigation established that one of the companies against which provisional measures had been imposed had not violated its undertaking and that it should be reinstated on the list of companies benefiting from an exemption to the anti-dumping and countervailing measures. The exporter was informed of the essential facts and considerations on the basis of which it was intended to reinstate the Commission's acceptance of its undertaking.

As concerns the other three companies subject to provisional measures, they were informed 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 make representations subsequent to this disclosure.

(8) The Commission's findings in this respect are set out more fully in Regulation (EC) No 1826-1999(6).

(9) None of the comments submitted, however, have changed the conclusion that definitive anti-dumping and countervailing duties should be imposed on imports of farmed Atlantic salmon originating in Norway and exported by the three companies listed in Annex I to this Regulation.

C. DEFINITIVE DUTIES

(10) The investigations which led to the undertakings were concluded by a final determination as to dumping and injury by Regulation (EC) No 1890-97(7), and a final determination as to subsidisation and injury by Regulation (EC) No 1891-97(8). While both these Regulations were repealed by Regulation (EC) No 772-1999(9), the facts and considerations established therein remain valid (recital 19 of Regulation (EC) No 772-1999 refers).

(11) In accordance with Article 8(9) of Regulation (EC) No 384-96 and Article 13(9) of Regulation (EC) No 2067-97 respectively, the rate of the anti-dumping duty and the countervailing duty must be established on the basis of the facts established within the context of the investigation which led to the undertaking. In this regard, and in view of recital 107 of Regulation (EC) No 1890-97 and recital 149 of Regulation (EC) No 1891-97, it is considered appropriate that the definitive anti-dumping and countervailing duty rates be set at the level, and in the form imposed by Regulation (EC) No 772-1999.

D. DEFINITIVE COLLECTION OF PROVISIONAL DUTIES

(12) A breach of undertaking has been definitively established in relation to the three exporters which have violated their undertakings. It is therefore considered necessary that, in relation to these exporters, the amounts secured by way of provisional anti-dumping and countervailing duties be definitively collected at the level of the definitive duties.

E. AMENDMENT OF THE ANNEX TO REGULATION (EC) No 772-1999

(13) By Regulation (EC) No 1826-1999, the Commission accepted undertakings from four new exporters, F. Uhrenholt Seafood Norway AS, Mesan Seafood AS, Polaris Seafood AS and Scanfish AS. Pursuant to Article 2 of Regulation (EC) No 772-1999, the Commission also extended the exemption from the anti-dumping and countervailing duties to these companies by adding their names to the Annex to that Regulation.

(14) The Norwegian exporters already on the list of companies from which undertakings are accepted, informed the Commission that their names had changed from Herøy Filetfabrikk AS to Atlantis Filetfabrikk AS and from SL Fjordgruppen AS to Fjord Seafood Leines AS and requested that these changes be reflected in the list of companies benefiting from the exemption payment of anti-dumping and countervailing duties. The Commission has verified that there were no changes in the corporate structures which would call for a more detailed examination of the appropriateness of these companies maintaining their undertakings.

(15) Accordingly, in view of all the above, the Annex to Regulation (EC) No 772-1999 exempting parties listed therein from the duty, should be amended so as the exemption, from the companies listed in Annex I hereto. The Annex should also be updated to take account of the exemption extended by Regulation (EC) No 1826-1999 to F. Uhrenholt Seafood Norway AS, Mesan Seafood AS, Polaris Seafood and Scanfish AS, and of the changes of name of Herøy Filetfabrikk to Atlantis Filetfabrikk AS and of SL Fjordgruppen AS to Fjord Seafood Leines AS,

HAS ADOPTED THIS REGULATION:

Article 1

The Annex to Regulation (EC) No 772-1999 is hereby replaced by the text in Annex II hereto.

Article 2

The amounts secured by way of the provisional anti-dumping and countervailing duties imposed by Regulation (EC) No 929-1999 in relation to farmed (other than wild) Atlantic salmon falling within CN codes ex 0302 12 00 (TARIC codes: 0302 12 00*21, 0302 12 00*22, 0302 12 00*23 and 0302 12 00*29 ), ex 0303 22 00 (TARIC codes: 0303 22 00*21, 0303 22 00*22, 0303 22 00*23 and 0303 22 00*29 ), ex 0304 10 13 (TARIC codes: 0304 10 13*21 and 0304 10 13*29 ) and ex 0304 20 13 (TARIC codes: 0304 20 13*21 and 0304 20 13*29 ) originating in Norway and exported by the companies listed in 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, 27 August 1999.

For the Council

The President

T. HALONEN

(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 253, 31.8.1996, p. 18, and OJ C 253, 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).

(5) OJ L 115, 4.5.1999, p. 13.

(6) OJ L 223, 24.8.1999, p. 3.

(7) OJ L 267, 30.9.1997, p. 1. Regulation as last amended by Regulation (EC) No 297-99 (OJ L 37, 11.2.1999, p. 1).

(8) OJ L 267, 30.9.1997, p. 19. Regulation as last amended by Regulation (EC) No 297-99.

(9) OJ L 101, 16.4.1999, p. 1.

ANNEX I

LIST OF COMPANIES SUBJECT TO DEFINITIVE ANTI-DUMPING AND COUNTERVAILING DUTIES

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ANNEX II

"ANNEX

LIST OF COMPANIES EXEMPTED FROM THE DEFINITIVE ANTI-DUMPING AND COUNTERVAILING DUTIES

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