EC, June 26, 2001, No 2001-544

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 2238-2000 (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, by means of two separate notices published in the Official Journal of the European Communities, the Commission announced the initiation of an anti-dumping proceeding (4) and an anti-subsidy proceeding (5) in respect of imports of farmed Atlantic salmon originating in Norway.

(2) These proceedings resulted in anti-dumping and countervailing duties being imposed by Council Regulations (EC) No 1890-97 (6) and (EC) No 1891-97 (7) in September 1997, in order to eliminate the injurious effects of dumping and subsidisation.

(3) In parallel to this, by Decision 97-634-EC (8), the Commission accepted undertakings from 190 Norwegian exporters and imports of farmed Atlantic salmon originating in Norway which were exported by these companies to the Community were exempted from the said anti-dumping and countervailing duties.

(4) The form of the duties was later reviewed and Regulations (EC) No 1890-97 and (EC) No 1891-97 were replaced by Regulation (EC) No 772-1999 (9).

B. FAILURE TO COMPLY WITH THE UNDERTAKING

(5) The undertakings offered by the Norwegian companies oblige them, inter alia, to export the product concerned to the Community at or above certain minimum price levels ("MIPs") laid down in the undertaking. These MIPs, which eliminate the injurious effects of dumping, are applicable to different "presentations" or categories of salmon (e.g. "gutted fish, head off", "gutted fish, head on" etc.).

(6) The companies are also obliged to provide the Commission with regular and detailed information concerning their sales to the Community in a quarterly report of all sales transactions of farmed Atlantic salmon sold by them (or any of their related importers in the Community), to unrelated customers in the Community.

(7) Without prejudice to its right to revoke the undertaking pursuant to Article 8(10) of Council Regulation (EC) No 384-96, the Commission performs on-the-spot verification visits at the premises of selected companies on a regular basis in order to determine the veracity and accuracy of the information provided in these quarterly reports. In this regard, visits were made in November 2000 to several exporters in Norway.

(8) At one company visited, Haafa Fish AS (UT No 1-60, TARIC additional code 8302, "Haafa fisk AS"), it was found that for the first and third quarters of 2000 the net weighted average sales prices for "presentation f" (i.e. "whole fish fillets exceeding 300 g in weight") was significantly below the MIP fixed in clause C.3 of the undertaking. In addition the net weighted average sales price for "presentation b" (i.e. "gutted fish, head on") during the third quarter of 2000 was also well below the MIP stipulated in the undertaking.

(9) Haafa Fish AS had also reported to the Commission several consignments of salmon apparently sold to a company in Denmark, however, the visit showed that Haafa Fish AS had prepared the invoices for these consignments on behalf of another Norwegian company which did not have an undertaking accepted by the Commission.

(10) In respect of these transactions, it was found that Haafa Fish AS did not actually pay the supplier in Norway for the goods, nor did it receive payment for them from the company in the Community. It was stated that payment for these shipments was made instead by the Community importer direct to the supplier in Norway, with Haafa Fish AS receiving what was effectively a commission from the supplier.

(11) It is considered that this type of business practice is incompatible with the obligations imposed by the undertaking since the benefit of the undertaking is only intended to cover exports made by Haafa Fish AS and not third parties from whom the Commission has not accepted an undertaking. In addition, Haafa Fish AS does not know how much was actually paid by the importer to the supplier and cannot therefore even be certain that the amount paid was at or above the MIP.

(12) It follows that in submitting quarterly undertaking reports of "sales" to the Community which were not made by it, but by another exporter, and which did not necessarily reflect the real value of the underlying financial transactions, the company made false representations and misled the Commission with regard to its true function as the exporter capable of respecting the undertaking granted in its favour, and also as to the true nature and price level of certain sales, contrary to the requirements of the undertaking.

(13) In view of this and the price violations set out in recital, the Commission concludes that a breach of the undertaking has occurred. Accordingly, acceptance of the undertaking offered by Haafa Fish AS should be withdrawn and definitive anti-dumping and countervailing duties imposed against it.

(14) The company was informed of the essential facts and considerations on the basis of which it was intended to recommend the imposition of definitive antidumping and countervailing duties against it. It was also granted a period within which to request a hearing and to make representations, however, no comments were received within the time limit set.

C. CHANGES OF NAME AND OWNERSHIP

(15) One Norwegian exporter with an undertaking, Polar Seafood Norway AS (UT No 1-140, TARIC additional code 8247), advised the Commission that the group of companies to which it belonged had been reorganised that another company within the group, Polar Salmon AS, was now responsible for exports to the Community. The company therefore requested that its name be replaced by that of Polar Salmon AS on the list of companies from which undertakings are accepted in the Annex to Decision 97-634-EC.

(16) Two other exporters, Hydro Seafood Norway AS (UT No 1-66, TARIC additional code 8159) and Hydro Seafood Rogaland AS (UT No 1-145, TARIC additional code 8256) advised the Commission that their ownership and names had changed, and requested that the list of companies from which undertakings are accepted be amended accordingly.

(17) Having verified the nature of the requests, the Commission considers that they are all acceptable since the modifications do not entail any substantive changes which would affect the reassessment of dumping or subsidisation. Nor do these changes affect any of the considerations on which the acceptance of the undertaking was based.

(18) Consequently, the names of Polar Seafood Norway, Hydro Seafood Norway AS and Hydro Seafood Rogaland AS should be changed to Polar Salmon AS, Marine Harvest Norway AS and Marine Harvest Rogaland AS respectively on the list of companies from which undertakings are accepted in the Annex to Decision 97-634-EC.

D. CESSATION OF TRADING BY TWO NORWEGIAN COMPANIES

(19) The Commission has also been advised that two Norwegian companies from which undertakings were accepted, Delfa Norge A/S (UT No 1-36, TARIC additional code 8134) and OK-Fish Kvalheim AS (UT No 1-134, TARIC additional code 8239) recently ceased trading and have either been wound up, or are in the process of being wound up. This information was received in the case of Delfa Norge A/S from the majority shareholder in the company and, in the case of OK-Fish Kvalheim AS, from the official liquidator. Accordingly, the names of these two companies should be deleted from the list of companies from which undertakings are accepted in the Annex to Decision 97-634-EC.

E. VOLUNTARY WITHDRAWAL OF AN UNDERTAKING

(20) Following changes in its trading patterns, Nova Sea AS (UT No 1-130, TARIC additional code 8235), advised the Commission that it wished to withdraw its undertaking. Accordingly, the name of this company should be deleted from the list of companies from which undertakings are accepted in the Annex to Decision 97-634-EC.

(21) In view, however, of the voluntary nature of the withdrawal, the company was advised that it could, if it so wished (and subject to certain conditions), offer an undertaking again in the future as a new exporter in accordance with Article 2 of Regulation (EC) No 772-1999.

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

(22) In view of the above changes, the list of companies from which undertakings are accepted in the Annex to Decision 97-634-EC should be amended accordingly.

(23) The Advisory Committee has been consulted on all of the above changes and has raised no objections.

(24) For the sake of clarity, an updated version of the Annex to that Decision is published herewith, showing all the exporters whose undertakings are currently in force. In parallel to this Decision, the Council, by Regulation (EC) No 1469-2001(10) has also withdrawn the exemption from the anti-dumping and countervailing duties granted to Haafa Fish SA, Delfa Norge A/S, OK-Fish Kvalheim AS and Nova Sea AS and transferred the exemptions granted to Polar Seafood Norway AS, Hydro Seafood Norway AS and Hydro Seafood Rogaland AS to Polar Salmon AS, Marine Harvest Norway AS and Marine Harvest Rogaland AS respectively by amending the Annex to Regulation (EC) No 772-1999,

Has decided as follows:

Article 1

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

Article 2

This Decision shall enter into force on the day following that of its publication in the Official Journal of the European Communities.

(1) OJ L 56, 6.3.1996, p. 1.

(2) OJ L 257, 11.10.2000, p. 2.

(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. 1.

(7) OJ L 267, 30.9.1997, p. 19.

(8) OJ L 267, 30.9.1997, p. 81. Decision as last amended by Decision 2000-744-EC, OJ L 301, 30.11.2000, p. 82.

(9) OJ L 101, 16.4.1999, p. 1. Regulation as last amended by Regulation (EC) No 2606-2000, OJ L 301, 30.11.2000, p. 61.

(10) See page 1 of this Official Journal.

ANNEX

LIST OF COMPANIES FROM WHICH UNDERTAKINGS ARE ACCEPTED

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