EC, April 29, 1999, No 929-1999

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

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), as last amended by Regulation (EC) No 905-98(2), and in particular Article 8 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(3), and in particular Article 13 thereof, After consulting the Advisory Committee, Whereas:

A. PREVIOUS PROCEDURE

(1) On 31 August 1996, the Commission announced, by two separate notices published in the Official Journal of the European Communities, the initiation of an anti-dumping proceeding(4) as well as an anti-subsidy proceeding(5) in respect of imports of farmed Atlantic salmon originating in Norway.

(2) The Commission sought and verified all information that it deemed necessary for the purpose of its definitive findings. As a result of this examination, it was established that definitive anti-dumping and countervailing measures should be adopted in order to eliminate the injurious effects of dumping and subsidisation. All interested parties were informed of the results of the investigation and were given the opportunity to comment thereon.

(3) On 26 September 1997, the Commission adopted Decision 97-634-EC(6), accepting undertakings offered in connection with the two abovementioned proceedings from the exporters mentioned in the Annex to the Decision and terminating the investigations in their respect.

(4) On the same day, the Council, by Regulations (EC) No 1890-97(7) and (EC) No 1891-97(8) imposed anti-dumping and countervailing duties on imports of farmed Atlantic salmon originating in Norway. Imports of farmed Atlantic salmon exported by companies from which an undertaking had been accepted were exempted from that duty pursuant to Article 1(2) of that Regulation.

(5) The abovementioned Regulations set out the definitive findings and conclusions on all aspects of the investigations. The form of the duties having been reviewed, Regulations (EC) No 1890-97 and (EC) No 1891-97 were replaced by Regulation (EC) No 772-1999.

B. PROVISIONAL MEASURES IMPOSED BY COMMISSION REGULATION (EC) No 82-1999(9)

(6) 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, as would non-compliance with the obligation to sell the different presentations of the product concerned (i.e. gutted, head-on, etc.) on the Community market at or above the minimum prices foreseen in the undertaking.

(7) For the second quarter of 1998, 10 Norwegian companies either did not present a report within the prescribed time limit (or did not submit any report at all), and two Norwegian exporters appeared to have sold the product concerned to the Community market at a price which was below the price foreseen in their undertakings.

(8) The Commission therefore had reason to believe that these 12 companies had breached the terms of their undertakings.

(9) Consequently, the Commission, by Regulation (EC) No 82-1999, imposed provisional anti-dumping and countervailing duties on imports of farmed Atlantic Salmon falling within CN codes ex 03021200, ex 03041013, ex 03032200 and ex 03042013 originating in Norway and exported by the 12 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, which listed the companies from which undertakings were accepted.

C. PROCEDURE FOLLOWING IMPOSITION OF PROVISIONAL DUTIES

(10) All 12 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.

(11) Within the time limit set in the provisional duty Regulation, nine of the Norwegian companies concerned submitted comments in writing. In addition, comments were submitted by the Norwegian Seafood Association on behalf of two of the companies subject to the provisional measures. Following receipt of these written submissions, the Commission sought and examined all information it deemed necessary for the purpose of a definitive determination on the apparent violations.

(12) Of the 12 companies subject to the provisional measures, five requested (and were granted) a hearing.

(13) The oral and written comments submitted by the interested parties were considered and, where appropriate, taken into account in the definitive findings.

D. DEFINITIVE FINDINGS- REPEAL OF PROVISIONAL DUTIES FOR SIX COMPANIES

(14) With regard to the 10 Norwegian exporters which either submitted their quarterly report to the Commission late, or did not submit a report at all, two companies, Kr Kleiven & Co. AS and Scanfood AS, claimed that they had sent their quarterly reports to the Commission by electronic mail within the due time period. However, it was found subsequently that this electronic mail contained an incorrect internal address for the Commission service dealing with the monitoring of anti-dumping undertakings, with the result that the reports did not reach the department concerned. The companies both claimed that they did not, as usually happens with undelivered electronic mail, receive a "mail-fail" message from, in this case, the Commission's electronic mail-failure service.

(15) Having examined the additional evidence put forward by the companies subsequent to the imposition of the provisional measures, the Commission is satisfied that the companies did indeed try to send their reports within the prescribed deadline. After also investigating the matter further with regard to the functioning of its own electronic mail-failure system, the Commission considers that, at the time of submission of their reports, Kr Kleiven & Co. AS and Scanfood AS might not, for temporary technical reasons, have received notification of non-receipt from its mail-server. Their claim that they were unaware that the reports had not been received by the competent Commission department is therefore accepted and, accordingly, definitive measures should not be imposed against these two companies.

(16) Another company which failed to submit its quarterly report within the prescribed time limit, Nor-Fa Food AS, claimed in mitigation that, whilst preparing the report during the month following the end of the quarter in question, it encountered on two occasions serious technical problems with regard to special computer diskettes used by Norwegian companies for compiling the sales data for the reports. These problems led to the final preparation of the report being delayed and its eventual despatch to the Commission to be after the deadline for receipt in the Commission's offices.

Subsequent to the imposition of provisional measures, Nor-Fa Food AS also provided evidence from the business consultancy firm which supplied the diskettes confirming that the company had indeed encountered problems initially with their use.

(17) The company also argued that it was, at that time, a company newly admitted to the system of undertakings and that the quarterly report in question was the first one it had submitted to the Commission.

(18) Having considered the matter further and after examination of the new arguments and evidence put forward, the Commission is now satisfied that the company had genuine difficulties in fulfilling its reporting obligations and that it had been confronted with circumstances which were beyond its control. Accordingly, definitive measures should not be imposed against Nor-Fa Food AS.

(19) A fourth company whose report was received late, Norway Seafoods ASA, attempted to submit its report for the second quarter of 1998 by electronic mail, but its electronic message was not accepted by the Commission's mail server because of its size.

(20) Following the imposition of provisional measures, the company argued that the Commission's mail server appears to have been faulty as the actual size of the message sent was nowhere near the maximum handling capacity of the mail server and its message should have been received satisfactorily.

(21) As mentioned above with regard to Kr Kleiven & Co. AS and Scanfood AS, the Commission has checked the functioning of its own electronic mail-failure system at the time when the quarterly reports in question were due. It is considered that Norway Seafoods ASA could not have reasonably expected their report to be refused by the Commission's mail server which, at the time, may not have been fault-free. The claim of Norway Seafoods ASA that it was confronted with a situation over which it had no control is therefore accepted. Accordingly, definitive measures should not be imposed against this company.

(22) Following the imposition of provisional measures, another company further elaborated on its claim that exceptional difficulties with regard to personnel caused its report to be sent late. The further clarifications and explanations provided by the company showed that it encountered difficulties which were unforeseeable. Consequently, definitive measures should not be imposed against this company.

(23) One of the two companies against which provisional measures were imposed due to apparent violations of the minimum import price, SMP Marine Produkter AS, provided calculations which showed that the company had inadvertently deducted from a sales transaction a certain amount for customs duty which had in fact been paid by the customer in the Community (and was not therefore deductible as a direct selling expense). Without this erroneous deduction, the average sales price for the quarter was higher and in conformity with the minimum import price. Accordingly, the provisional duties imposed against this company should be repealed.

E. DEFINITIVE FINDINGS- VIOLATION OF UNDERTAKINGS BY SIX COMPANIES

(24) As concerns the five other companies which failed to respect their obligations to report on time, none of them have provided further satisfactory evidence subsequent to final disclosure that circumstances which were beyond their control had prevented them from submitting their quarterly reports within the due period.

(25) Accordingly, definitive measures should be imposed against these five companies.

(26) The other company against which provisional measures were imposed due to apparent violations of the minimum import price, Brødrene Remo, did not come forward with any explanations or evidence which would have put in question the provisional findings. It is therefore concluded that definitive measures should also be imposed against this company.

(27) All the interested parties were informed of the essential facts and considerations on the basis of which it was intended to either repeal the provisional measures imposed against them and reinstate them on the list of companies from which undertakings are accepted, or 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 companies were also granted a period within which to make representations subsequent to this disclosure. Comments received were taken into account where appropriate.

(28) In parallel to this Regulation, the Commission is submitting a proposal for a Council Regulation imposing definitive anti-dumping and countervailing duties on farmed Atlantic salmon originating in Norway and exported by the remaining seven companies which are subject to the provisional duty imposed by Regulation (EC) No 82-1999, namely A Ovreskotnes AS, Alsvag Fiskeprodukter A/S, Brødrene Remo AS, Hitramat & Delikatesse AS, Seacom Nord AS and Stavanger Røkeri AS.

F. NEW VIOLATION CASES

(29) As mentioned above, all exporters from which undertakings have been accepted are required to submit a quarterly sales report within a prescribed period to the Commission, and also to respect minimum prices for the various presentations of the product concerned. With regard to the third quarter of 1998, a Norwegian exporter, Atlantic Seafood A/S failed to comply with its obligation to present a report within the prescribed time limit. The company was informed of the consequences of late reporting and, in particular, that should the Commission have reasons to believe that its undertaking is being violated, a provisional anti-dumping and countervailing duty may be imposed pursuant to Article 8(10) of Regulation (EC) No 384-96 and Article 13(10) of Regulation (EC) No 2026-97, respectively.

(30) The company was also invited to provide evidence of any force majeure which caused the late submission of its report. However, no conclusive evidence thereof has been provided.

(31) Also, whilst monitoring the reports relating to the third quarter of 1998, it appeared that one exporter, Myre Sjømat AS, had made sales to the Community market below the minimum price foreseen in the undertaking.

(32) In order to determine the veracity and accuracy of the information provided in the quarterly reports furnished by exporters, on-the-spot verification visits at the premises of selected companies are performed by the Commission on a regular basis. In this regard, a series of visits was made in November 1998 to exporters in Norway and importers in the Community. Visits were also made to Norwegian exporters in January 1999.

(33) One of the companies visited in Norway, Brødrene Eilertsen AS, had submitted quarterly reports to the Commission which purported to show that it had made sales of the product covered by the undertaking to customers in the Community in accordance with the terms of the undertaking. The verification revealed, however, that the company had not bought and sold the products mentioned in its reports but had, instead, simply issued invoices to importers in the Community on behalf of another Norwegian company, which had not offered an undertaking to the Commission and for which it acted as an agent. Indeed, although Brødrene Eilertsen AS issued export invoices and reported these to the Commission as its own sales, payment for the goods was made directly to the other Norwegian company by the buyers in the Community.

(34) Another Norwegian company visited, Arne Mathiesen AS, was found to have exported the product concerned exclusively to an unrelated importer in the Community. However, Arne Mathiesen AS sourced much of this salmon from a Norwegian supplier which was related to Mathiesen's sole customer in the Community. With regard to the exports sourced from this supplier, the investigation showed that Arne Mathiesen AS did not actually pay the supplier for the goods. As concerns "resale" of these goods, whilst Arne Mathiesen AS issued the export invoices, payment for the goods thereon was made directly by the Community importer to its related supplier in Norway, and not to Arne Mathiesen AS. Instead of receiving the full invoiced amount, Arne Mathiesen received the difference between the supposed purchase invoice and the amount appearing on the export invoice.

(35) Accordingly, neither Brødrene Eilertsen AS or Arne Mathiesen AS can be considered as exporters for the purposes of their undertakings as they do not exercise any control over the actual price of the goods. This also means that the price paid by the customer in the Community to the Norwegian supplier companies without an undertaking cannot be monitored at all by the Commission.

(36) It is therefore provisionally concluded that Brødrene Eilertsen AS and Arne Mathiesen AS have made misleading declarations as to the identity of the exporter and the identity and nature of the sales reported, which constitutes a breach of their undertakings.

G. IMPOSITION OF PROVISIONAL MEASURES FOLLOWING APPARENT VIOLATION CASES

(37) Having regard to all the above, there are reasons to believe that the undertakings accepted by the Commission from Atlantic Seafood AS, Myre Sjømat AS, Brødrene Eilertsen AS and Arne Mathiesen AS are being violated.

(38) It is therefore considered imperative that, pending further investigation of these apparent violations, provisional duties be imposed against these companies.

(39) In accordance with Article 8(10) of Regulation (EC) No 384-96 and Article 13(10) of Regulation (EC) No 2026-97, the rate of the anti-dumping and countervailing duty respectively must be established on the basis of the best information available.

(40) 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 provisional anti-dumping and countervailing duty rates be set at the level and in the form imposed by Regulation (EC) No 772-1999.

H. FINAL CONSIDERATION CONCERNING IMPOSITION OF PROVISIONAL DUTIES

(41) In the interest of sound administration, a period should be fixed in which interested parties may make known their views in writing and request a hearing.

I. NEW EXPORTER

(42) Following the imposition of definitive anti-dumping and countervailing duties, several companies made themselves known to the Commission claiming to be new exporters and offered undertakings.

(43) In this regard, one such company, Westmarine AS, demonstrated that it had not exported the product concerned to the Community during the investigation period which led to the current anti-dumping and countervailing duties. The company also showed that it was not related to any of the companies in Norway which are subject to the anti-dumping and countervailing duties. Finally, the company provided evidence that it had entered into an irrevocable contractual obligation to export a significant amount of the product concerned to the Community.

(44) The undertaking offered is identical in its terms to those previously offered by other Norwegian companies exporting farmed Atlantic salmon originating in Norway and it is considered that acceptance of such an undertaking from this exporter will be sufficient to remove the effects of injurious dumping and subsidisation.

(45) Since the exporter has agreed to provide the Commission with regular and detailed information on its exports to the Community, it is concluded that the undertaking can be monitored effectively by the Commission.

(46) The undertaking offered by this company is therefore considered acceptable. The company has been informed of the essential facts and considerations upon which acceptance of the undertaking is based. The Advisory Committee was consulted and has raised no objections. Pursuant to Article 2 of Regulation (EC) No 772-1999 therefore, the Annex to that Regulation should be amended to grant exemption from payment of anti-dumping and countervailing duties to this company.

J. CHANGE OF NAME

(47) In addition, two other Norwegian exporters, Saga Lax Nord AS and Hydro Seafood Sales AS, advised the Commission that the names of the companies had been changed to Prima Nor AS and Hydro Seafood Norway AS respectively. The Commission has therefore verified and confirmed that there were no changes to their corporate structures which warranted a more detailed examination of the appropriateness of the companies maintaining their undertakings. Accordingly, the name of these companies should be amended in the Annex to Decision 97-634-EC.

K. AMENDMENT OF THE ANNEX TO DECISION 97-634-EC

(48) 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 Kr Kleiven & Co. AS, Misundfisk AS, Nor-Fa Food AS, Norway Seafoods ASA, Scanfood AS and SMP Marine Produkter AS, in respect of which the provisional duties should be repealed, the undertaking accepted from Westmarine AS and the changes of name to Prima Nor AS and Hydro Seafood Norway AS.

(49) For the sake of clarity, an updated version of this Annex should be published, showing the exporters whose undertakings remain in force.

Has adopted this regulation:

Article 1

1. The provisional anti-dumping and countervailing duties imposed against the following companies by Regulation (EC) No 82-1999 in relation to farmed (other than wild) Atlantic salmon originating in Norway 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), are hereby repealed:

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2. The Annex to Regulation (EC) No 82-1999 is hereby replaced by Annex I to the present Regulation.

3. Any amounts secured by way of the provisional anti-dumping and countervailing duties imposed by Regulation (EC) No 82-1999 from Kr Kleiven & Co. AS, Misundfisk AS, Norway Seafoods ASA, Scanfood AS, SMP Marine Produkter AS and Nor-Fa Food AS shall be released.

Article 2

1. (a) Provisional countervailing and anti-dumping duties are hereby imposed on imports of 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 Annex II to the present Regulation.

(b) These duties shall not apply to wild Atlantic salmon (Taric codes: 03021200*11, 03041013*11, 03032200*11 and 03042013*11). For the purpose of this Regulation, wild salmon shall be that in respect of which the competent authorities of the Member States of landing are satisfied, by means of all customs and transport documents to be provided by interested parties, that it was caught at sea.

2. (a) The rate of the countervailing duty applicable to the net free-at-Community-frontier price, before duty, shall be 3,8 % (Taric code: 8900).

(b) The rate of the anti-dumping duty applicable to the net free-at-Community-frontier price, before duty, shall be EUR 0,32 per kilogram net product weight (Taric code: 8900). However, if the free-at-Community-frontier price, including the countervailing and anti-dumping duties, is less than the relevant minimum price set out in paragraph 3, the anti-dumping duty to be collected shall be the difference between that minimum price and the free-at-Community-frontier price, including the countervailing duty.

3. For the purpose of paragraph 2, the following minimum prices shall apply per kilogram net product weight:

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Article 3

The following company shall be added to the Annex to Regulation (EC) No 772-1999

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Article 4

The Annex to Decision 97-634-EC is hereby replaced by Annex III hereto.

Article 5

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.

(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 253, 31.8.1996, p. 18.

(5) OJ C 253, 31.8.1996, p. 20.

(6) OJ L 267, 30.9.1997, p. 81.

(7) OJ L 267, 30.9.1997, p. 1, repealed by Council Regulation (EC) No 772-1999 (OJ L 101, 16.4.1999, p. 1).

(8) OJ L 267, 30.9.1997, p. 19, repealed by Regulation (EC) No 772-1999.

(9) OJ L 8, 14.1.1999, p. 8.

ANNEX I

List of companies subject to provisional anti-dumping and countervailing duties

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ANNEX II

List of companies on which provisional duties are imposed by Article 2

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ANNEX III

ANNEX TO DECISION 97-634-EC

List of the 110 companies from which undertakings are accepted, as updated on 5 May 1999

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