Council Regulation (EC) No 437/2004 of 8 March 2004 imposing definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of large rainbow trout originating in Norway and the Faeroe Islands

• Published date: 11 March 2004
• Subject Matter: Commercial policy,Dumping
• Official Gazette Publication: Official Journal of the European Union, L 72, 11 March 2004

|

Council Regulation (EC) No 437/2004 of 8 March 2004 imposing definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of large rainbow trout originating in Norway and the Faeroe Islands

Official Journal L 072 , 11/03/2004 P. 0023 - 0041

Council Regulation (EC) No 437/2004

of 8 March 2004

imposing definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of large rainbow trout originating in Norway and the Faeroe Islands

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) (the basic Regulation), in particular Article 9 thereof,

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

Whereas:

A. PROVISIONAL MEASURES

(1) The Commission, by Regulation (EC) No 1628/2003(2) (the provisional Regulation) imposed a provisional anti-dumping duty on imports of large rainbow trout falling within CN codes 0302 11 20, 0303 21 20, 0304 10 15 and 0304 20 15, originating in Norway and the Faeroe Islands.

(2) It is recalled that the investigation of dumping and injury covered the period from 1 October 2001 to 30 September 2002 (investigation period or IP). The examination of trends relevant for the injury analysis covered the period from 1 January 1999 to 30 September 2002 (analysis period).

B. SUBSEQUENT PROCEDURE

(3) Following the imposition of provisional duties on imports of large rainbow trout originating in Norway and the Faeroe Islands, some interested parties submitted comments in writing. The parties who so requested were also granted an opportunity to be heard orally.

(4) All parties were informed of the essential facts and considerations on the basis of which it was intended to recommend the imposition of definitive anti-dumping duties and the definitive collection of amounts secured by way of provisional duties. They were also granted a period within which they could make representations subsequent to this disclosure.

(5) The oral and written comments submitted by the interested parties were considered and, where appropriate, the definitive findings have been changed accordingly.

(6) The Commission continued to seek and verify all information it deemed necessary for the definitive findings. In addition to the verification visits undertaken at the companies mentioned in recital 6 of the provisional Regulation, it should be noted that after the imposition of provisional measures, on-spot verification visits were carried out at the premises of the following companies and Associations:

- Federation of European Aquaculture Producers (FEAP), Boncelles, Belgium,

- Syndicat national des industries du saumon et de la truite fumés, Paris, France,

- P/F PRG Export and its related producer P/F Luna, Gøta, Faeroe Islands,

- P/F Vestsalmon and its related producer P/F Vestlax, Kollafjørður, Faeroe Islands,

- P/F Bakkafrost, Glyvrar, Faeroe Islands,

- P/F Faeroe Salmon, Klaksvik, Faeroe Islands,

- P/F Faeroe Seafood, Torshavn, Faeroe Islands,

- P/F Landshandilin, Torshavn, Faeroe Islands,

- P/F Navir, Argir, Faeroe Islands,

- P/F Viking Seafood, Strendur, Faeroe Islands.

(7) Some parties argued that the selected IP was not appropriate as the prices were extremely low during that period and have since recovered. In this respect, it should be recalled that, as per Article 6(1) of the basic Regulation, for the purpose of a representative finding, an investigation period shall be selected which, in the case of dumping shall, normally, cover a period of not less than six months immediately prior to the initiation of the proceeding. In other words, the IP is basically determined by the date of initiation. However, it is also recalled that in line with usual Community practice, the IP concerning dumping had a duration of one year. This period which is usually long enough to cover also seasonal changes in demand and thus ensuring a representative finding, in particular by excluding that short-lived fluctuations on the Community market or on the home markets of the exporting country carry a disproportional overweight in the findings. Article 6(1) of the basic Regulation also sets the rules under which circumstances occurring after the IP can be taken into account. Accordingly, information relating to a period subsequent to the investigation period shall, normally, not be taken into account. In line with consistent Community practice, this has been interpreted as meaning that events relating to a period subsequent to the IP can only be taken into account if they are manifest, undisputed and lasting. Nothing found in this investigation suggests that the data relating to a period after the initiation are more representative than those relating to the IP. Events before the IP are in any event taken into account in the analysis period. The argument was therefore rejected.

C. PRODUCT CONCERNED AND LIKE PRODUCT

(8) The Norwegian exporting producers and the Norwegian Ministry of Fisheries argued that fresh/chilled and frozen trout should not be considered as like products because they do not share the same physical characteristics since frozen trout is a processed product using fresh as its raw material. They further claimed that frozen trout competes only to a limited degree with fresh trout and is to a large extent intended for different markets than the fresh products. It was also noted that authorities in the USA have consistently not included frozen products in the context of antidumping proceedings concerning salmon originating in Norway. Similarly, they submitted that in the recent antidumping proceeding concerning salmon originating in Norway, the Faeroes Islands and Chile, the Community Institutions found that frozen fillets from Chile competed with fresh salmon products from the Community industry only to a limited degree. On the basis of these arguments they requested that frozen whole fish and fillets be excluded by the proceeding.

(9) In this respect it should be noted that in assessing whether the product concerned should be deemed to be alike to large rainbow trout produced in the Community, it was initially considered whether the various types of and presentations of large rainbow trout, i.e. fillets or whole fish, fresh or frozen, shared the same basic physical, technical and/or chemical characteristics. In this respect it was considered that, in contrast to procedures such as smoking or marinating, the freezing of large rainbow trout does not alter the basic characteristics of the product, but solely allows its storage for a deferred consumption. Moreover, the present investigation has established that fresh and frozen large rainbow trout are interchangeable. In addition, in the recent investigation(3) concerning salmon where a similar argument was made, it was determined that the product concerned included whole fish, gutted fish and various types of portion fillets, whether fresh, chilled or frozen and that such presentations of salmon constituted a single product which itself was deemed to be alike in all respects to that produced by the Community producers and sold in the Community market, and thus this case does not support the submission made. Finally, arguments concerning practice in the USA were not considered relevant in the context of this investigation, since the product scope of the anti-dumping investigations carried out by the USA authorities was different. On the basis of the above, the request that frozen whole fish and fillets should be excluded from the proceeding could not be accepted.

(10) The same parties also argued, that live trout should not be covered by the product concerned that producers of live trout should not be considered for the definition of the Community industry, and that producers of trout should be distinguished from companies involved in the slaughtering, packing, freezing and filleting of fish. In this respect it should be noted that live trout is not covered by the investigation and thus not accounted in for the total production of the product concerned in the Community. Furthermore, live trout is indeed neither the product concerned nor are producers of live trout included in the definition of the Community industry. However, in respect of the submission that the trout growers should be distinguished, it was established that all the sampled cooperating producers included in the definition of the Community industry grow the fish and then slaughter it and pack it, or fillet it. In some cases they further process it and/or freeze it. This distinction between producing companies and processing companies does therefore not exist in the Community industry and the argument was thus rejected.

(11) It was further argued that part of the production of large rainbow trout in the Community is destined for producing roe, and that fish grown to maturity to this end constitutes a product of a much inferior quality and therefore can not be considered as alike to the product concerned. It was also submitted in this regard that the basic physical characteristics change significantly because of lower fat content and the colour of flesh of the fish matured for producing roe. In this respect, it should be firstly noted that the alleged changes in fat content and the colour of flesh are only significant when the fish is fully matured, but not before. The fish is, however, slaughtered before the full maturity, and accordingly the quality of the fish is not affected to that extent that it cannot be sold on the market for human consumption. In this respect, it should be further noted that fully matured trout also produces lower quality roe. For that reason, there is no added value for...