19.7.2008   

EN

Official Journal of the European Union

L 192/1

(1)

By Regulation (EC) No 1174/2005 (2) (the original Regulation) the Council imposed a definitive anti-dumping duty on imports of hand pallet trucks and their essential parts (HPT) originating in the People’s Republic of China (PRC). The investigation that led to the aforesaid Regulation used as investigation period the period from 1 April 2003 to 31 March 2004 (the original investigation).

(2)

This partial interim review was initiated on the Commission’s own initiative. The information at the Commission’s disposal indicated that certain products, highlifters, stackers, scissorlifts and weighing trucks (HSSWT), which could allegedly fall under the product scope, appeared to be distinct from hand pallet trucks and their essential parts, i.e. chassis and hydraulics, inter alia, due to their specific functions (lifting, stacking or weighing of loads) and end uses. In order to fulfil these functions, there appeared to be differences in the strength and construction of the hydraulics and chassis. The aforementioned features underlined the differences in use — and there appeared to be no inter-changeability between these products and hand pallet trucks. Therefore, it was considered appropriate to review the case as far as a clarification of the scope of the product is concerned, with the conclusion thereon possibly having retroactive effect as of the date of the imposition of the relevant anti-dumping measures.

(3)

Having determined, after consulting the Advisory Committee, that sufficient evidence existed to justify the initiation of a partial interim review, the Commission announced by a notice published in the Official Journal of the European Union  (3) the initiation of a partial interim review in accordance with Article 11(3) of the basic Regulation, limited to the examination of the product scope.

(4)

The Commission officially advised the authorities of the PRC (country concerned), and all other parties known to be concerned, i.e. exporting producers in the country concerned, users and importers in the Community and producers in the Community, of the initiation of the partial review investigation. Interested parties were given the opportunity to make their views known in writing and request a hearing within the time limit set in the notice of initiation. All interested parties who so requested and showed that there were particular reasons why they should be heard, were granted a hearing.

(5)

The Commission sent questionnaires to all parties known to be concerned and all other parties which made themselves known within the deadlines set out in the notice of initiation.

(6)

In view of the scope of the partial review, no investigation period was set for the purpose of this partial review. The information received in the questionnaire replies covered the period from 2003 to 2006 (period considered), i.e. it covered also the investigation period of the original investigation. For the period considered, information concerning sales/purchases volume and value, production volume and capacity for HPT and HSSWT was requested. In addition, the parties concerned were asked to comment on any differences or similarities between HPT and HSSWT with respect to their production process, technical characteristics, end-uses, interchangeability etc.

(7)

Sufficiently complete questionnaire replies were received from two Chinese exporting producers of HPT/HSSWT, four Community producers of HPT or HSSWT, one user and 14 importers of HPT/HSSWT in the Community.

(8)

The Commission sought and verified all information deemed necessary for the purpose of the assessment as to whether there is a need for clarification/amendment of the scope of the existing anti-dumping measures and carried out investigations at the premises of the following companies:

(9)

The product concerned is, as uniformly defined in the original Regulation, hand pallet trucks, not self-propelled, used for the handling of materials normally placed on pallets, and their essential parts, i.e. chassis and hydraulics, originating in the PRC, normally declared within CN codes ex 8427 90 00 and ex 8431 20 00. There are different types of hand pallet trucks and their essential parts depending mainly on the lift capacity, length of the forks, type of steel used for the chassis, type of hydraulics, type of wheels and existence of brakes.

(10)

It is recalled that the original investigation covered hand pallet trucks and their essential parts, i.e. chassis and hydraulics which are used for handling and moving manually loads normally placed on pallets. By definition, HPT need to be pushed and pulled by man power. Therefore, HPT provide a mechanism allowing the user to manually lift the load just enough to move it from a place to another.

(11)

HSSWT, which allegedly have been classified as product concerned subject to the anti-dumping measures by some national customs authorities, can be self-propelled or moved manually. They are used to move and to lift the loads in order to place them higher, assist in storage of loads (highlifters), to stack one pallet above the other (stackers), to lift the load to a working level (scissorlifts) or to lift and to weigh the loads (weighing trucks).

(12)

Only HPT as defined under recital 10 above were considered as the product concerned investigated under the original Regulation. It is pertinent to note that for the purposes of the original investigation the Commission has never requested from cooperating parties to provide information on HSSWT and has not verified any information on HSSWT. Thus, all data and information presented under the original Regulation and the results of the original investigation, including the imposition of the definitive anti-dumping measures, were purely based on HPT.

(13)

Account taken of the situation described under recital 2 and in order to establish whether HSSWT are distinct from HPT, both HSSWT and HPT were examined with respect to their physical and technical characteristics, their production process, their typical end-uses and their interchangeability.

(14)

There are different types of HPT and their essential parts, i.e. hydraulics and chassis, depending mainly on the lift capacity, length of the forks, type of steel used for the chassis, type of hydraulics, type of wheels and existence of brakes. These different types have, however, the same basic physical characteristics and uses and they were therefore all considered as the product concerned in the original investigation.

(15)

The review investigation has shown that HSSWT share some of the HPT characteristics, e.g. they have chassis with forks and a hydraulics system. However, they have additional functions for lifting the load higher, stacking, operating as work table/level or weighing the load, which require clearly more advanced or additional technical components. In order to fulfil the aforesaid specific HSSWT functions, the requirements in the strength and construction of forks, chassis and hydraulics are different than for HPT. In addition, in order to fulfil these additional functions, HSSWT are significantly more expensive than HPT (up to 10 times).

(16)

It was established by the review investigation that there are significant differences in the production process of HPT and HSSWT since the latter need additional components and thus different production steps compared with HPT. Indeed, the review investigation revealed that in highlifters and stackers the frame of the chassis needs to be significantly higher and the hydraulic system different to enable lifting the load higher whereas in weighing trucks, a weighing scale is incorporated in the chassis with the latter having a totally different forks structure compared to HPT.

(17)

HPT are widely used in load handling activities, in distribution and warehousing of goods. They are used both in the manufacturing industries as well as in retail shops. HPT are designed to be manually pushed, pulled and steered, on smooth, level, hard surfaces, by a pedestrian operator using an articulated tiller. The hand pallet trucks are only designed to raise a load, by pumping the tiller, to a height sufficient for transporting the load, for example in distribution vehicles, warehouses, manufacturing sites, or even inside retail sales shops. The typical maximum lifting capacity of HPT is around 210 millimetres. In addition, HPT are commonly considered as necessary compliment to other load handling devices, such as forklifts. No specific training is needed to use HPT.

(18)

The review investigation has shown that HSSWT are mainly used by the same users as HPT, however, their uses are different, e.g. lifting the load higher, stacking the load, functioning as work level or weighing the load. Due to their specific characteristics and uses, HSSWT are not as widely used as HPT. This is why their sales volume is around one tenth of HPT sales in the EC market. In addition, unlike HPT, the use of HSSWT requires specific training.

(19)

The review investigation has shown that HSSWT have significantly more specific uses than HPT. Indeed, highlifters/stackers are used to lift the load higher, to assist in storage of loads, to stack one pallet above the other, scissorlifts are used to lift the load to a working level and weighing trucks to weigh the load.

(20)

To some very limited extent some types of HSSWT (e.g. weighing trucks) can lift and move the load as HPT. However, replacing HPT with HSSWT does not make any practical or economic sense because HPT are easier to use for only lifting and moving the load and HSSWT are significantly more expensive than HPT and require specific training in using them. In addition in some cases permanent use of HSSWT instead of HPT can destroy the main functions of HSSWT, e.g. in the case of weighing tracks where the weighing scale device is so delicate that it would be defected from the moment of the weighing truck is used for lifting and moving loads.

(21)

On the other hand it was established during the review investigation that HPT cannot be used to replace HSSWT. The functions of the latter refer to a specific and distinguished market with different requirements and end-user needs and perceptions.

(22)

The Commission also examined whether the essential parts, i.e. chassis and hydraulics, of HPT and HSSWT are interchangeable. In this respect, the review investigation has shown that both chassis and hydraulics are not interchangeable between HPT and HSSWT due to their different construction and characteristics.

(23)

The review investigation has established that due to different and additional technical characteristics, different end-uses and different production process, HSSWT do not fall within the product scope of HPT and their essential parts which are subject to the anti-dumping measures in force. This was the reason why the Commission did not considered HSSWT as part of the product scope of the original investigation.

(24)

It is therefore considered appropriate to clarify that HSSWT differ from HPT and their essential parts and do not fall within the product scope subject to anti-dumping measures.

(25)

Interested parties were informed of the above conclusions.

(26)

One party claimed that HSSWT and HPT should be regarded as one technical entity but the information on file does not warrant such a conclusion. All the remaining parties that submitted representations accepted the findings of the Commission.

(27)

Given the above, it is considered appropriate to amend the original Regulation to clarify the product definition.

(28)

Since the present review investigation is limited to the clarification of the product scope and since HSSWT were not covered by the original investigation and the consequent anti-dumping measure, it is considered appropriate that the findings be applied from the date of the entry into force of the original Regulation, including any imports subject to provisional duties between 29 January 2005 and 21 July 2005. The Commission has not found any overriding reason preventing the application of such retroactive provision.

(29)

Consequently, for goods not covered by Article 1(1) of Regulation (EC) No 1174/2005 as amended by this Regulation, the definitive anti-dumping duty paid or entered in the accounts pursuant to Article 1(1) of Regulation (EC) No 1174/2005 and the provisional anti-dumping duties definitively collected pursuant to Article 2 of the same Regulation should be repaid or remitted.

(30)

Repayment or remission must be requested from national customs authorities in accordance with applicable customs legislation.

(31)

This review does not affect the date on which Regulation (EC) No 1174/2005 will expire pursuant to Article 11(2) of the basic Regulation,

19.7.2008   

EN

Official Journal of the European Union

L 192/5

(1)

The Council, following an anti-dumping investigation (the original investigation), by Regulation (EC) No 85/2006 (2) imposed a definitive anti-dumping duty on imports of farmed salmon originating in Norway. The definitive duty was imposed in the form of a minimum import price (MIP).

(2)

On 20 February 2007, the Commission received a request for a partial interim review lodged by the following Member States: Italy, Lithuania, Poland, Portugal and Spain (the applicants) pursuant to Article 11(3) of the basic Regulation.

(3)

The applicants have provided prima facie evidence that the basis on which the measures were established has changed and that these changes are of a lasting nature. The applicants alleged and provided prima facie evidence showing that a comparison between a constructed normal value and export prices would lead to a reduction of dumping significantly below the level of the current measures. Therefore, the continued imposition of measures at the existing levels is no longer necessary to offset dumping. This evidence was considered sufficient to justify the opening of a proceeding.

(4)

Accordingly, after having consulted the Advisory Committee, the Commission on 21 April 2007 initiated, by the publication of a notice in the Official Journal of the European Union  (3), a partial interim review of anti-dumping measures in force on imports of farmed salmon originating in Norway in accordance with Article 11(3) of the basic Regulation (the notice of initiation).

(5)

This review was limited in scope to the aspects of dumping with the objective of assessing the need for the continuation, removal or amendment of the existing measures.

(6)

The Commission officially advised all known exporters/producers in Norway, traders, importers and associations known to be concerned, and representatives of the Kingdom of Norway, of the initiation of the proceeding. Interested parties were given the opportunity to make their views known in writing and to request a hearing within the time limit set in the notice of initiation.

(7)

Section 5(a) of the notice of initiation indicated that the Commission may decide to apply sampling in accordance with Article 17 of the basic Regulation. In response to the request pursuant to Section 5(a)(i) of the notice of initiation, 267 companies provided the information requested within the specified deadline. Of these, 169 were exporting producers of farmed salmon. Exports were made either directly or indirectly via related and independent traders.

(8)

In view of the large number of companies involved, it was decided to make use of the provisions for sampling and, for this purpose, a sample of producing companies, with the largest export volumes to the Community (exporting producers) was chosen, in consultation with the representatives of the Norwegian industry. The representatives of the Norwegian industry proposed to include into the sample (i) a producing company which did not export on its own but only via unrelated traders in Norway and (ii) two exporters but not producers of the product concerned. This could not be accepted because as far as the producing company is concerned there were no sufficient guarantees that export sales to the Community via unrelated traders could indeed be identified. As for the exporters without own production of salmon, no normal value could be established and therefore no duty could be determined for these companies.

(9)

In accordance with Article 17 of the basic Regulation, the selected sample covered the largest possible representative volume of exports that could reasonably be investigated within the time available. The exporting producers selected in the final sample represented almost 60 % of the reported volume of the product concerned exported to the Community.

(10)

As far as importers are concerned, and in order to enable the Commission to decide whether sampling is necessary, Section 5(a)(ii) of the notice of initiation requested importers in the Community to submit the information specified in this section. Only four importers in the Community replied to the sampling form. Given this low number of cooperating importers no sampling was necessary in this case.

(11)

The Commission sought and verified all information deemed necessary for the determination of dumping. To this end, the Commission invited all parties known to be concerned and all other parties which made themselves known within the deadlines set out in the notice of initiation to cooperate in the present proceeding and to fill in the relevant questionnaires. In this regard, 267 producers and exporters in Norway, the representatives of the Community salmon producers and the Governments of Ireland and Scotland cooperated with the Commission and made their views known. Furthermore, four importers and the six sampled Norwegian exporting producers submitted full questionnaire replies within the deadlines set.

(12)

The Commission carried out verifications at the premises of the following companies:

(13)

The two largest Norwegian exporting producers, i.e. Marine Harvest AS and Hallvard Leroy AS represented over 44 % of the total production reported by the cooperating Norwegian producers and 45 % of the Norwegian exports to the Community.

(14)

The information supplied by the other four companies selected in the sample was subject to an in-depth desk analysis and it was found that their costs of production and export prices were generally in line with those of the visited companies.

(15)

All interested parties, who so requested and showed that there were particular reasons why they should be heard, were granted a hearing.

(16)

The investigation of dumping covered the period from 1 January 2006 to 31 December 2006 (review investigation period or RIP).

(17)

The product under review is the same as in the original investigation, i.e. farmed (other than wild) salmon, whether or not filleted, fresh, chilled or frozen, originating in Norway (the product concerned). The definition excludes other similar farmed fish products such as large (salmon) trout, biomass (live salmon) as well as wild salmon and further processed types such as smoked salmon.

(18)

The product is currently classifiable within CN codes ex 0302 12 00, ex 0303 11 00, ex 0303 19 00, ex 0303 22 00, ex 0304 19 13 and ex 0304 29 13 corresponding to different presentations of the product (fresh or chilled fish, fresh or chilled fillets, frozen fish and frozen fillets).

(19)

As established in the original investigation and confirmed by this investigation, the product concerned and the product produced and sold on the domestic market in Norway were found to have the same basic physical characteristics and had the same use. They were therefore considered to be like products within the meaning of Article 1(4) of the basic Regulation. Since the present review was limited to dumping, no conclusions were reached with regard to the product produced and sold by the Community industry in the Community market.

(20)

The Norwegian producers of farmed salmon were making sales of the product concerned to the Community either directly, or via related and unrelated traders. Only identifiable sales destined for the Community market made directly or via related companies based in Norway were used to calculate an export price at the level of the producer.

(21)

For the determination of normal value the Commission first established, for each of the exporting producers included in the sample, whether its total domestic sales of farmed salmon were representative in comparison with its total export sales to the Community. In accordance with Article 2(2) of the basic Regulation, domestic sales were considered representative when the total domestic sales volume of each exporting producer was at least 5 % of its total export sales volume to the Community.

(22)

In order to determine whether domestic sales were representative, sales to unrelated traders located in Norway and owning an export licence during the RIP were disregarded since the final destination of these sales could not be established with certainty. Indeed, the investigation indicated that these sales were overwhelmingly destined for export to third country markets and therefore not sold for domestic consumption.

(23)

The Commission subsequently identified those product types sold domestically by the companies having overall representative domestic sales, which were identical or directly comparable with the types sold for export to the Community.

(24)

Domestic sales of a particular product type were considered as sufficiently representative when the volume of that product type sold on the domestic market to independent customers during the investigation period represented 5 % or more of the total volume of the comparable product type sold for export to the Community.

(25)

An examination was also made as to whether the domestic sales of each type of the product concerned sold domestically in representative quantities could be regarded as having been made in the ordinary course of trade in accordance with Article 2(4) of the basic Regulation, by establishing the proportion of profitable sales to independent customers of the type in question. This was done by establishing the proportion of profitable domestic sales to independent customers of each exported product type, on the domestic market during the investigation period, as follows:

(26)

Where the sales volume of a product type, sold at a net sales price equal to or above the calculated cost of production, represented more than 80 % of the total sales volume of that type, and where the weighted average price of that type was equal to or above the cost of production, normal value was based on the actual domestic prices. This price was calculated as a weighted average of the prices of all domestic sales of that type made during the RIP, irrespective of whether these sales were profitable or not.

(27)

Where the volume of profitable sales of a product type represented 80 % or less of the total sales volume of that type, or where the weighted average price of that type was below the cost of production, normal value was based on the actual domestic price, calculated as weighted average of profitable sales of that type only, provided that these sales represented 10 % or more of the total sales volume of that type.

(28)

Where the volume of profitable sales of any product type represented less than 10 % of the total sales volume of that type, it was considered that this particular type was sold in insufficient quantities for the domestic price to provide an appropriate basis for the establishment of the normal value.

(29)

Wherever domestic prices of a particular product type sold by an exporting producer could not be used in order to establish normal value, another method had to be applied.

(30)

First, it was examined whether normal value could be established on the basis of domestic prices of other producers in Norway in accordance with Article 2(1) of the basic Regulation. Since in this case, no more reliable prices of other producers were available, the constructed normal value was used in accordance with Article 2(3) of the basic Regulation.

(31)

Therefore, in accordance with Article 2(3) of the basic Regulation, the Commission instead calculated a constructed normal value as follows. Normal value was constructed by adding to each exporting producer’s manufacturing costs of the exported types, adjusted where necessary, a reasonable amount for selling, general and administrative expenses (SG&A) and a reasonable margin of profit.

(32)

In all cases SG&A and profit were established pursuant to the methods set out in Article 2(6) of the basic Regulation. To this end, the Commission examined whether the SG&A incurred and the profit realised by each of the exporting producers concerned on the domestic market constituted reliable data.

(33)

None of the six exporting producers concerned for which the normal value had to be constructed had representatives domestic sales. Therefore, the method as described in Article 2(6) chapeau could not be used. Article 2(6)(a) could not be applied since none of the exporting producers concerned had representative domestic sales. Article 2(6)(b) was not applicable either, because sales of the general category of products on the domestic markets were found not to be made in the ordinary course of trade. Therefore, SG&A and profits were established pursuant to Article 2(6)(c) of the basic Regulation, i.e. on the basis of any other reasonable method. In this regard, and in the absence of any other more reliable information available, it was considered that a profit margin of 30 % and SG&A of 3 % would be reasonable taking into account the figures reported by the six exporting producers during the RIP regarding their domestic sales.

(34)

The Norwegian exporting producers questioned the use of a profit margin of 30 % claiming that it would not correspond to any actual figures reflecting normal margins in the fish farming sector. However, there was no indication in the file that the amounts for profits established, as described above, exceeded the profit normally realised by other exporting producers on sales of products of the same general category on the domestic market of the country of origin in the RIP. Indeed, as mentioned above, the profit margin used was based on actual verified figures. This argument had therefore to be rejected.

(35)

In all cases where the product concerned was exported to independent customers in the Community, the export price was established in accordance with Article 2(8) of the basic Regulation, namely on the basis of export prices actually paid or payable.

(36)

Where export sales were made via related traders, the export price was constructed, pursuant to Article 2(9) of the basic Regulation, on the basis of the price at which the imported products were first resold to an independent buyer, duly adjusted for all costs incurred between importation and resale, as well as a reasonable margin for SG&A and profits. In this regard, the related traders’ actual SG&A during the RIP were used. As far as profit is concerned, it was determined on the basis of information available, and in the absence of any other more reliable information, that 2 % profit was reasonable for a trader in this business sector.

(37)

As mentioned above in recital (21), in cases where sales were made via unrelated traders, it was not possible to determine with certainty the final destination of the product exported. Therefore, it could not be established whether a certain sale was made to a customer in the Community or to another third country, and it was therefore decided to disregard sales to unrelated traders. The Community industry objected to this approach claiming that such sales should have been investigated alleging that salmon was sold via independent traders which entered the Community at prices below the MIP.

(38)

It is recalled that, when establishing the export price, sales to the first independent customer should be taken into consideration in accordance with Article 2(8) of the basic Regulation and that therefore, in the context of the determination of dumping, re-sales prices from the first independent customers are irrelevant. This argument had therefore to be rejected.

(39)

The comparison between normal value and export prices was made on an ex-works basis.

(40)

For the purpose of ensuring a fair comparison between the normal value and the export price, due allowance was made in the form of adjustments for differences affecting prices and price comparability in accordance with Article 2(10) of the basic Regulation. Appropriate adjustments were granted in all cases where they were found to be reasonable, accurate and supported by verified evidence. On this basis, allowances were made for differences in discounts, rebate, transport, insurance, handling, loading and ancillary costs, packing, credit and import duties.

(41)

For the exporting producers which were included in the sample, an individual dumping margin was calculated. For these companies, the weighted average normal value of each type of the product concerned exported to the Community was compared with the weighted average export price of the corresponding type of the product concerned, as provided for under Article 2(11) of the basic Regulation.

(42)

Regarding those cooperating exporting producers not included in the sample, it was found that, for the bulk of their sales, their export prices were generally in line with those of the sampled exporters. In the absence of any information indicating the contrary, it was considered that the sampling results are representative for all other exporters.

(43)

Given the high level of cooperation, i.e. almost 100 %, it was also concluded that the dumping margins found for the sampled cooperating exporting producers were representative for Norway.

(44)

On the basis of the above, the dumping margins expressed as a percentage of the CIF net free-at-Community-frontier price, duty unpaid are as follows:

(45)

The weighted average dumping margin for all six exporting companies is – 16,1 %.

(46)

Since the dumping found during the RIP was de minimis, it was further examined whether there is a likelihood of recurrence of dumping should measures be allowed to lapse, in accordance with Article 11(3) of the basic Regulation, i.e. whether the circumstances during the RIP were of a lasting nature. In this regard, the following four aspects were examined in particular: (i) evolution of the normal value; (ii) development of export volumes and prices to the Community and other third countries; (iii) production volumes and capacities in Norway; and (iv) the situation of the Norwegian industry.

(47)

For the vast majority of export sales, (i.e. for 99 %), the normal value was constructed in accordance with Article 2(3) of the basic Regulation on the basis of the manufacturing costs of the exporting producers concerned by adding an amount for SG&A and profit. Therefore, it was considered appropriate to examine the likely evolution of the cost of production in Norway as a surrogate for domestic prices, to determine the likely evolution of the normal value.

(48)

The investigation revealed that the cost structure of the Norwegian exporting producers has remained stable throughout the RIP. In fact, during the RIP, the costs of production per unit of the investigated companies were on average 20 to 25 % below the MIP.

(49)

As regards their likely evolution, several factors having an influence on the level of the unit costs were examined, such as costs of feed, costs of smolt, the impact of the consolidation process of the Norwegian salmon industry and the increased use of new increasingly cost efficient technologies.

(50)

It was considered that the cost of feed which represents 50 to 60 % of the total cost is a reliable indicator regarding the total cost evolution. This is also confirmed by industry analysts specialised in this sector. Certain interested parties claimed that total costs would have increased after the RIP and are likely to increase further, i.e. by at least 30 % by the end of 2008 in comparison to the beginning of the RIP mainly due to alleged increases of feed prices. They further argued that a combination of an increasing normal value with falling export prices would result in recurrence of dumping.

(51)

The interested parties concerned did not submit any particular evidence substantiating the alleged anticipated increase in feed cost by 30 %. An analysis of the possible cost development could furthermore not confirm these allegations. Thus, in contrast to what was claimed by these interested parties, the investigation revealed that the verified feed costs of the Norwegian exporting producers have remained more or less stable throughout the RIP and the first three quarters of 2007. Thus, Table (1) in recital (54) only shows a slight increase of feed costs between 2006 and 2007. The investigation also revealed that the feed price increase is mainly linked to the increase of the prices of some feed components (raw materials) such as fish oil and fish meals. It should be noted that fish oil and fish meals are to a certain extent substitutable by other lower cost raw material in the fish feed composition such as vegetable oils and meals. As a consequence, feed producers would normally switch the fish feed composition in order to keep the overall feed cost as low as possible. It is therefore expected that even if the cost of certain feed components increases, this will not have a direct linear impact on the overall feed cost, i.e. if there is an increase, such an increase will be at a significantly lower pace. It should also be noted that other cost factors as described below in recitals (52) and (55) to (63) will likely have a decreasing and therefore compensatory effect on the potential increase in the feed cost.

(52)

As regards smolt prices, which represent about 15 % of the total cost of farming, the investigation showed that prices have decreased as shown in Table (1) below. Although it is difficult to precisely foresee the development of smolt costs, the persistent decreasing trend shown in Table (1) below was considered as a reliable indicator allowing to reasonably conclude that the same trends will be followed in the future. In any case, the investigation did not reveal, nor did any of the interested parties claim, a significant change of smolt costs developments in the future.

(53)

Since both smolt and feed costs account for at least 65 % of the total costs and that fish oil and fish meals are to a certain extent substitutable by other lower cost raw material in fish feed composition (see recital (51)), it was concluded that total costs are not likely to increase significantly in the foreseeable future.

(54)

Table (1): Evolution of costs of feed and smolt in Norwegian Kroner (per kilo of salmon — Head On Gutted (HOG) (source: Kontali Analyse AS (4) (2008))

(55)

Subsequent to disclosure, the Community industry objected to the above findings by alleging that feed costs should have been allocated by generation, as feed costs during a certain year do not affect the cost of a harvest in that specific year but the costs of a future harvest. Otherwise, findings regarding the development of feed costs would not reflect appropriately the actual situation. This had to be rejected because actual verified feed costs aggregated by generation were used in the analysis.

(56)

The Community industry also objected to the conclusions that higher prices in certain feed components can be compensated by substitution. In this respect it was argued that due to an increase in prices of other feed components on the one hand and the negative impact on the quality of the salmon flesh on the other hand such substitution would be limited. Regarding the increase in costs of other feed components, this was not supported by sufficient evidence and had therefore to be rejected. It is recognised that substitution of certain feed components is limited. However, as mentioned in recital (51), it was found that substitution is indeed possible to a certain extent. On this basis it was concluded that although feed costs may increase in future, they are not likely to increase to the same extent as the costs of fish oil and fish meal. The Community industry did not submit any evidence which could reverse these conclusions.

(57)

The consolidation process is another factor contributing to the stabilisation of the costs of production. It should be noted that since the year 2000 the number of companies producing 80 % of the Atlantic salmon in Norway has been reduced from 55 to 31 in 2006. Although the Norwegian fish farming sector can still be seen as fragmented, the consolidation process has positive effects on the costs of production not only of the most important producers in Norway, which were also selected in the sampling, but also for the overall sector, as confirmed by specialised industry analysts. Indeed, new synergies, integration of production activities and economies of scale have enabled producers to control the cost increase on a per unit basis, despite the important increase of production volumes.

(58)

The consolidation trend is expected to continue in the future, which will very likely have a further positive impact on the costs, through economies of scale.

(59)

Finally, the introduction of new technologies and equipment to fish farming activities has contributed to a containment of the cost increase on a per unit basis, despite the fact that production volumes have increased (see recital (64) and following recitals).

(60)

Subsequent to disclosure, the Community industry contested that production cost would have decreased arguing that consolidation as such is not necessarily a cost reducing factor. Thus, it was claimed that, according to Norwegian statistics, the medium and small sized companies in Norway would be more efficient than the large groups. It was further argued that the conclusion of cost reductions would contradict the findings in recital (92) concerning the possible consequences of an outbreak of a disease and the expected lower yield per smolt in future which both would have a cost increasing effect.

(61)

It is first of all noted that recital (92) does not refer to the consequences of an outbreak of a disease but to the normal mortality rate inherent to the production of salmon which does not have any impact on the cost as such. Secondly, the expected lower yield per smolt mentioned in this recital is not due to an exceptional situation and is not considered to be significant and therefore without any substantial impact on the overall cost. Recital (92) merely attempts to show that the increase in production volume cannot be translated one to one by the increase in the smolts production since other factors have also an influence of the harvested volume, which was not disputed by the Community industry.

(62)

As far as the cost reducing effect of the consolidation process is concerned, the Community industry did not submit any evidence to support their objection. The Community arguments in this respect had therefore to be rejected.

(63)

In conclusion, given the above, it is considered that the normal value is not likely to increase significantly in the foreseeable future. Rather, due in particular to the ongoing consolidation process, further cost reductions may be realised even though feed prices are on an upward trend (see recital (51)). Therefore, the constructed normal value, which is based on the cost of manufacturing, is considered to be of a lasting nature.

(64)

As shown in Table (2) in recital (65), the Norwegian production of salmon has increased steadily in the last three years and in 2007 in particular, mainly due to favourable biological conditions and as compared to a weak production year in 2006. However, as shown in Table (3) in recital (66) concerning the estimated total consumption in the Community, the Community market for the product concerned has also increased significantly, i.e. + 9,40 % from 2006 to 2007, and based on the past trends should further grow. The development in the consumption shown in Table (3) below includes all third country imports as well as the sales of the Community industry in the Community market.

(65)

Table (2): Total production of salmon in tons Whole Fish Equivalent (WFE) between 2003 and 2007 (source: Kontali Analysis: Monthly Salmon Report January No 01/2008)

(66)

Table (3) Development in consumption (supply from all sources including the Community industry) of Atlantic salmon in the Community from 2004 to 2007 (source: Kontali Analysis: Monthly Salmon Report January No 01/2008).

(67)

In 2007, according to public statistics (Kontali Analysis), the estimated market share in the Community of Norwegian salmon reached 71 % compared to 69 % in 2006. This is, however, especially due to the decrease of imports from Chile where production levels dropped between 3 % and 5 % (depending on the sources) between 2006 and 2007, due to a disease outbreak which is anticipated to have lasting effects on productions levels at least in 2008 and the following years.

(68)

On the basis of the above, it was concluded that the increasing Community market will be able to absorb a large part of the production volumes in Norway without the Norwegian production necessarily taking over significant market shares from the Community industry. Furthermore, as outlined below in recital (78) and following recitals, parts of the Norwegian production volumes are likely to be increasingly exported to other third country markets where considerable growth has been observed. Finally, the reduced Chilean presence in the Community will very likely also contribute to further reducing the risks of oversupply of exports to the Community.

(69)

Subsequent to disclosure, the Community industry claimed that the situation in Chile has no significant impact for the Community market, since Chilean salmon was mainly exported to the US market and thus the supply situation in the Community market is essentially determined by Norwegian exports. The Community industry further argued that market shares from Norway in the Community increased by an additional 2 % points, while imports from Chile in the Community would have increased by 5 % at the beginning of 2008.

(70)

It should first be noted that the data submitted by the Community industry only referred to two to three months of 2008 and therefore no meaningful conclusion can be drawn thereon. Indeed, in this kind of market, developments have to be looked at during a longer time span. Secondly, the disease situation in Chile should have an impact on the worldwide supply, which will indeed be reduced, and which will allow for Norwegian additional production volumes to be re-directed.

(71)

As far as export prices to the Community are concerned, certain interested parties claimed that they have decreased significantly since the RIP and would reach a level of EUR 2,85/kg in 2008 which would result in dumping, in combination with the alleged increase in cost and thus in the normal value. This price was estimated on the basis of the average cross-section price reported on the Oslo market in 2007, i.e. EUR 3,13/kg by deducting an estimated average price decrease of between EUR 0,06/kg and EUR 0,28/kg.

(72)

As far as the development of the normal value is concerned and as explained in recital (47) and following recitals, the arguments brought forward by the interested parties in question had to be rejected.

(73)

As far as export prices to the Community are concerned, publicly available statistics show that the allegations of the above mentioned interested parties are not confirmed by the recent evolution of export prices as shown in Chart (1) below.

(74)

Chart (1): Evolution of prices (FCA Oslo EUR/Kg of Fresh Salmon Superior — source Fish Pool) in 2006, 2007 and beginning of 2008.

(75)

It follows from the above that prices to the Community in 2007 were indeed significantly lower than during large part of the RIP, i.e. in 2007 they were between EUR 2,88/kg and EUR 3,51/kg. However, the investigation established that these prices were still largely above the established cost of production and therefore also above the normal value and were therefore not considered to be made at dumped levels. Furthermore, based on the information available for the first three months of 2008, prices during that period were found to be between EUR 2,96/kg and EUR 3,35/kg, i.e. likewise, still above the established costs. Therefore, they were very likely not at dumped levels when considering that the normal value has remained stable as concluded in recital (47) and following recitals. The investigation has shown that prices continue to be influenced by the market demand but are currently set at a higher level. It is also noted that these price fluctuations are normal in this sector.

(76)

The Community industry claimed that export prices after the RIP were influenced by the existence of the MIP and therefore kept at a relatively high level. They further argued that, therefore, should measures be allowed to lapse, the price level to the Community will decrease significantly. This conclusion is not confirmed by the findings of the current investigation, which showed that normal value should remain relatively stable, while the likelihood of significantly decreased export price levels to the Community was small. Latter findings were based on a thorough analysis of several aspects listed in recital (46), such as likely development of the production and export volumes from Norway to the Community and other third country markets. The Community industry did not submit any information or evidence which could devaluate the findings made in this respect.

(77)

Considering the above, it was concluded that increasing imports of salmon to the Community from Norway should not be such as to create a risk of an oversupply in the Community market. Furthermore, given the situation of the cost of production and export prices to the Community, the risk of dumping appears to be remote.

(78)

The investigation showed that the Community is and is likely to remain the main market for Norwegian salmon, followed by Russia and Japan. In addition, there are also emerging markets for salmon where Norwegian exports have increased in the last few years, a trend which is expected to continue in the future (see recital (82) and following recitals). Indeed, the investigation has shown that Norwegian producers are prepared to supply these markets in future, since they were able to establish local customer relationships and distribution/sales operations which indicate the strong interest of the Norwegian exporting producers in these markets.

(79)

Certain interested parties have argued that the Russian market has been historically volatile and that therefore it is not predictable whether demand in this market will indeed increase and whether the Norwegian exporting producers will therefore be able to export increased quantities to this market in the future. The same parties have also argued that export sales from Norway to Japan showed a falling trend over the last five years and that therefore, likewise, it is uncertain whether increased production volumes in Norway can indeed be exported to the Japanese market.

(80)

However, as regards Russia, the investigation revealed that the market of around 61 000 tonnes has continued to increase and that there are no reasons to assume that it should not continue to do so in the foreseeable future.

(81)

The total exports of salmon from different producer countries to Japan showed a decrease by 15 % in 2007 as compared to 2006. However, while some of the supplier countries have decreased their exports to Japan, Norway was able to increase its market share from 52 % in 2006 to 66 % in 2007 (Source: Kontali Analysis). As mentioned above in recital (67), Chile’s production yield was largely affected by the disease situation and therefore export volumes in general, and thus also to Japan were significantly reduced. Norway has therefore been able to take over market shares from Chile, a situation which is expected to last at least until 2009, as already mentioned in recital (67).

(82)

As shown in Table (4) in recital (85), Norwegian exports to other emerging markets of the world such as Eastern Europe (Ukraine, Belarus) and the Far East (China, South Korea, Hong Kong, Thailand) have also increased significantly and contrary to what has been claimed by the interested parties concerned, these markets will in all likelihood absorb an increasing part of the Norwegian production in the coming years.

(83)

Export prices to the Community and to other third countries on a FCA Oslo basis were found to be at similar levels and it was therefore concluded that all markets are comparably attractive should there be sufficient demand. When sold as a fresh or chilled product, the product concerned is transported to the EU usually by truck. When sold to more distant destinations not accessible by truck within a certain time limit, the product concerned is transported by air.

(84)

On the basis of the above, it is concluded that, other factors being equal, the deteriorating salmon production of 3 to 5 % in 2007 in Chile linked to the disease situation will contribute to the containment of global supply growth in 2008 and give market opportunities to Norwegian producers in markets such as Japan, the US and other emerging markets where Chilean producers hold significant market shares.

(85)

Table (4): Market development (exports) for Atlantic Salmon from Norway — 2006 versus 2007 (volume in tons round weight) — (Source: Norwegian Seafood Export Council).

(86)

The Community industry objected to the above findings by claiming that the development of export volumes from Norway to other third countries would have shown a different trend in the beginning of 2008, i.e. exports to these countries in absolute terms would have decreased and the total growth of exports would thus have been lower than in 2007 and lower than the export growth to the Community during the same period.

(87)

The investigation has shown that import data for the beginning of 2008 depending on the source used varied significantly. Thus, Kontali Analysis showed increasing trends at a much higher degree for the same period. Furthermore, as mentioned above in recital (70), market developments should be looked at during a longer time span to show a conclusive picture. The arguments of the Community industry could not therefore devaluate the findings with regard to the development of export volumes to other third countries.

(88)

The production level in Norway, i.e. maximum allowed biomass, is mainly determined by the number of production licenses which are granted by the Norwegian authorities, and the ability of the fish farmers to achieve the highest possible production within the limits of their licence. Other factors liable to increase the production of salmon are for example favourable biological and meteorological factors and the improvement of the fish farming processes with high-tech equipment. Conversely, the outbreak of a fish disease could harm the production significantly and lead to a decrease in harvested fish as was the case in Chile in 2007.

(89)

Certain interested parties claimed that the increase in production of juvenile fish in Norway since 2006 (allegedly an increase of 20 % between 2006 and 2008) gave a strong indication that Norwegian salmon production volume would increase significantly within the next two years and thus lead to a situation of over supply. On this basis, and taking into account the particularly high yield level achieved in 2007, these parties argued that in 2008 (and beyond) production volumes in Norway will be significantly higher and largely exceed the growth of its export markets, and in particular the Community market. They alleged that should the yield improvement experienced by the Norwegian salmon industry in 2007 be repeated in 2008, the surpluses or unsold volumes could reach between 20 000 and 91 000 tonnes resulting from an estimated production level of 870 000 tonnes WFE, i.e. 150 000 tonnes more than in 2007.

(90)

The investigation did not confirm the above allegations. While it is true that there was an increase in the production of juvenile fish in 2006, this increase was in line with increases of prior years and cannot be regarded as exceptional, as shown in Chart (2) below.

(91)

Chart (2) Number of produced salmon juveniles (in 1 000 pieces) — (Source: SSB Norway)

(92)

In addition, based on a combination of various factors such as the mortality factors, government regulations ruling maximum allowed biomass and lower yield per smolt in 2008, according to Kontali Analysis, the estimated production of salmon in 2008 should increase by merely 6 %, i.e. from 723 000 tonnes WFE in 2007 to 770 000 tonnes in 2008, i.e. 47 000 tonnes WFE. The figures regarding the smaller development in the biomass in 2008 are supported by the feed sales data which show a significant drop in 2008 compared to 2007 (source Havbruksdata and FHL).

(93)

Subsequent to disclosure, the Community industry reiterated its claim that production volume in Norway is likely to increase significantly and provided some further data concerning harvest quantities, stocks and juvenile fish relating to the beginning of 2008. As above, it was considered that data relating to only two months of the year are as such inconclusive and cannot therefore devaluate the findings with regard to the development of the production volume in Norway as outlined above.

(94)

Therefore, and on the basis of the information available, although production volumes in Norway are on an upward trend, a dramatic increase in production in the near future, such as claimed by the abovementioned interested parties, is not likely to occur. In addition, as outlined in recital (82) and following recitals, any increased production volumes are not likely to be exported in their totality to the Community, but a large part will be very likely directed to other third country markets where demand is increasing significantly. Finally, for the reasons outlined in recital (71) and following recitals, exports to the Community are not expected to be made at dumped prices.

(95)

Finally, the situation of the Norwegian industry in general and during the RIP in particular has been given special consideration. The investigation thus revealed that, in contrast to what was found during the original investigation, the aquaculture sector in Norway is composed of highly profitable companies. This is partly due to the large and still ongoing consolidation process which has turned the sector highly efficient and healthy. This is also reflected in the ownership structure of the companies concerned, i.e. several Norwegian and global investments and pension funds are very well represented in the exporting producers’ groups. This also was not the case during the original investigation.

(96)

Furthermore, the investigation revealed that Norwegian producers are meanwhile also very well established in the Community market, where they represent approximately 80 to 90 % of the total production volume in the Community. These Norwegian related companies in the Community were found to produce and sell salmon to a large extent for and on the Community market.

(97)

It should also be noted that the Norwegian mother companies were themselves exporting considerable quantities to the Community.

(98)

On this basis, it was considered that the Norwegian mother companies of the producing companies located in the Community would at least be equally negatively affected by any significant price decrease in the Community market due to dumped imports from Norway. Indeed, on this basis, it was not unreasonable to assume that at least economically it would not make sense for the Norwegian exporting producers to contribute to a drop of the prices of farmed salmon in the Community via dumping practices. This would directly harm the profitability of the sector and would negatively affect the companies’ shares which are traded in the stock exchange and have, as mentioned in recital (95), major investment and pension funds as shareholders.

(99)

On the basis of the above, it was therefore reasonable to conclude that the Norwegian exporting producers have a vested interest in avoiding situations of market price collapse and to remain profit orientated. Consequently, the risk that the dumping practices by the Norwegian exporting producers would resume in foreseeable future was considered limited.

(100)

The Community industry objected to the above findings by claiming that the healthy situation of the Norwegian producers found during the RIP was not of a lasting nature and that after the RIP, these producers faced financial problems and some of them even reported losses at the beginning of 2008. The Community industry also claimed that the vast majority of Norwegian producers do not have any subsidiaries in the Community market and that on this basis it cannot be concluded that dumping would not resume. Finally, it was alleged that Norwegian producers with subsidiaries in the Community would decrease their production in the Community market and increase production in Norway should measures be allowed to lapse.

(101)

As far as the financial situation of the Norwegian producers is concerned, it is noted that the losses of some of the companies were linked to their investments in Chile and the outbreak of the disease in this country. These particular circumstances only concerned a small number of the total producers in Norway. In addition, the information related only to the beginning of the year 2008 and did not allow for any overall conclusions concerning the performance of these companies throughout the whole year. As far as the Norwegian owned production in the Community is concerned, and as also admitted by the Community industry, although the number of companies having subsidiaries in the Community is limited, they represent a major part of the total Norwegian production and are therefore considered as significant. The argument that Norwegian owned production capacities in the Community will be reduced should measures be repealed was not supported by any evidence. These arguments had therefore to be rejected.

(102)

The investigation revealed that dumping during the RIP was at de minimis levels. The investigation further revealed that there are no reasons to believe that the production volume in Norway will increase above the traditional growth rate and thus lead to significantly increased export volumes from Norway to the Community. The investigation also established that the risk of a significant decrease in Norwegian export prices to dumped levels is limited in the foreseeable future, mainly due to the fact that a significant over-production in Norway, which may be the main trigger for such a decline in prices, is not expected. In particular, normal value, which was found to very likely remain stable, was significantly lower than the export price during the RIP, i.e. normal variations due to the fluctuating character of the market and therefore temporary decreases in the export price are not likely to automatically result in dumping. Finally, it was considered that the changed situation of the Norwegian aquaculture sector which has become highly profitable and the shares of which are traded at the stock exchange, as well as the important presence of Norwegian owned production in the Community, have made the recurrence of dumping practices in the foreseeable future unlikely. For all of the above reasons, it was concluded that the likelihood of recurrence of dumping is low and does not warrant the continued imposition of the anti-dumping measures in force.

(103)

Consequently, the current interim review should be terminated and the measures in force on imports of farmed salmon originating in the Norway should be repealed.

(104)

As explained above, it is expected that market conditions, i.e. demand and supply, remain stable in the foreseeable future and that there is therefore no apparent likelihood of recurrence of dumping. Indeed, all indicators examined show that it can be reasonably expected that the export volumes to the Community will not increase significantly and that export prices remain at non-dumped levels.

(105)

However, given a certain unpredictability of market conditions mainly due to the nature of the product (perishable goods), it is considered appropriate to monitor the market closely and to review the situation should there be sufficient prima facie evidence that market conditions have changed significantly. In such case, consideration will be given to the initiation of an investigation on an ex officio basis, should it be deemed necessary.

(106)

The monitoring should be limited in time until the original foreseen expiry of the definitive measures imposed by Regulation (EC) No 85/2006, should they have remained in place, i.e. until 21 January 2011.

(107)

Interested parties were informed of the essential facts and considerations on the basis of which it was intended to terminate the present interim review and to repeal the existing anti-dumping duty on imports of the product concerned. All parties were given an opportunity to comment. Their comments were taken into account where warranted and substantiated by evidence,

19.7.2008   

EN

Official Journal of the European Union

L 192/18

19.7.2008   

EN

Official Journal of the European Union

L 192/20

(1)

Commission Regulation (EC) No 824/2000 of 19 April 2000 on establishing procedures for the taking-over of cereals by intervention agencies and laying down methods of analysis for determining the quality of cereals (2) has been substantially amended several times (3). In the interests of clarity and rationality the said Regulation should be codified.

(2)

The intervention price for common wheat, durum wheat, barley, maize and sorghum is fixed for qualities corresponding as far as possible to the average quality of the cereals harvested in the Community.

(3)

In order to simplify the management of intervention operations and, in particular, to permit the establishment of homogeneous lots for each type of cereal offered to intervention, a minimum quantity, below which the paying agency or intervention agency is not obliged to accept the offer, should be fixed. However, it may be necessary to provide for a greater minimum tonnage in certain Member States, so that the agencies may take account of pre-existing conditions and practices of the wholesale trade in those countries.

(4)

Methods of determining the quality of common wheat, durum wheat, barley, maize and sorghum must be defined.

(5)

The second subparagraph of Article 11(1) of Regulation (EC) No 1234/2007 limits the quantities of maize which may be bought in by the paying agencies or intervention agencies throughout the Community to a total of 700 000 tonnes in the 2008/2009 marketing year and 0 tonnes from the 2009/2010 marketing year onwards.

(6)

To ensure the satisfactory management of the system for intervention buying-in of maize, and to give economic operators in all Member States access to the intervention system under equivalent conditions, detailed procedures should be laid down specific to the award of the quantities of maize eligible for intervention. To this end, a mechanism should be introduced for the award of those quantities, covering the periods of the marketing year in which operators may submit offers, giving them sufficient time to submit their offers and allowing a uniform award coefficient to be fixed for all offerers where the quantities offered exceed those available. Provision should therefore be made for the offers to be examined in two periods, and timetables should be laid down for the submission of offers for maize and for deliveries and the associated takeovers.

(7)

Taking into account the periods for intervention buying-in laid down in the first subparagraph of Article 11(1) of Regulation (EC) No 1234/2007, and to ensure equivalent treatment of operators, provision should be made for a first period for the submission of offers for maize running from 1 August in Greece, Spain, Italy and Portugal, from 1 December in Sweden and from 1 November in the other Member States, with 31 December as the last day for the submission of offers in all Member States. At the end of this first period the Commission will be obliged, where appropriate, to fix an award coefficient for the admissible offers submitted during this first period and to close the intervention for the remainder of the marketing year where the quantities offered exceed the quantity laid down in the second subparagraph of Article 11(1) of Regulation (EC) No 1234/2007. To avoid placing administrative and financial burdens on the paying agencies or intervention agencies and on operators, in particular by requiring securities to be lodged which could prove unnecessary in the absence of quantities to be awarded, provision should be made for a break in the submission of offers between 1 January and the date of publication in the Official Journal of the European Union of the quantity remaining available for intervention in the second period.

(8)

Given the time needed to fix the award coefficient for the first period where necessary, the second period for the submission of offers should commence on the day following the date of publication in the Official Journal of the European Union of the quantity remaining available for intervention, this being the first day for the submission of offers in all Member States. In this second period, the acceptance of offers should take place once a week, starting the first Friday following the publication of that quantity, on the basis of offers submitted by operators by 12.00 (Brussels time) on the Friday at the latest. Each week, by Wednesday at the latest, the Commission should post on its Internet site information for operators as to the remaining quantity available for intervention. Where the quantity laid down in the second subparagraph of Article 11(1) of Regulation (EC) No 1234/2007 is exceeded, the Commission should fix and publish an award coefficient and close the intervention for the marketing year in question. In view of the intervention buying-in periods provided for in the first subparagraph of Article 11(1) of Regulation (EC) No 1234/2007, the second period for the submission of offers should in any case end at the latest by 30 April in Greece, Spain, Italy and Portugal, 30 June in Sweden and 31 May in the other Member States.

(9)

To allow sound management of the award mechanism, it should be laid down that offers for maize may not be altered or withdrawn. Moreover, to ensure that offers are genuine, they should be subject to the lodging of a security, and the terms for checking that offers are genuine and for releasing the security should be laid down. To this end, this check should follow the same rules and conditions as those applicable to checks on stocks in public storage under Commission Regulation (EC) No 884/2006 of 21 June 2006 laying down detailed rules for the application of Council Regulation (EC) No 1290/2005 as regards the financing by the European Agricultural Guarantee Fund (EAGF) of intervention measures in the form of public storage operations and the accounting of public storage operations by the paying agencies of the Member States (4). In addition, between the start of the submission of offers in the first period and 31 December, several months may elapse. To avoid placing a financial burden on operators submitting offers in this first period, it should be allowed for the security that has to be lodged on submission of the offers, when it is lodged in the form of a bank guarantee, not to be payable until the day following the final day for the submission of offers.

(10)

Common wheat and durum wheat are covered by minimum quality criteria for human consumption and must satisfy the health standards laid down by Council Regulation (EEC) No 315/93 of 8 February 1993 laying down Community procedures for contaminants in food (5). The other cereals are mainly intended for animal feed and must comply with Directive 2002/32/EC of the European Parliament and of the Council of 7 May 2002 on undesirable substances in animal feed (6). Provision should be made for those standards to be applicable when the products concerned are taken over under the present intervention scheme.

(11)

Cereals of inadequate quality for use or storage should not be accepted into intervention. To this end, account should be taken of the situation regarding intervention, in particular the long-term storage of certain cereals and its effects on product quality.

(12)

Therefore, in order to protect intervention products from deterioration and to maintain their suitability for subsequent use, the quality criteria for maize should be upgraded. To this end, the maximum moisture content and the maximum percentage of broken grains and grains overheated during drying should be reduced. Given the agronomic similarities of sorghum and maize, and in the interests of consistency, the same measures should be laid down for sorghum.

(13)

To improve the quality of storage conditions and provide a guarantee of this from the time the offers are submitted, the places where the cereals are stored at the time of the offer should be such as to guarantee the best possible conservation, in particular over a long period as regards maize. It is therefore necessary to limit the possibility of taking over the cereals in the offerer’s store and to authorise this kind of takeover only where the cereals are kept by storers within the meaning of Article 2(2)(a) of Regulation (EC) No 884/2006. In such cases, the offerer should undertake to apply mutatis mutandis in his relations with the storer, as from submission of his offer, the same rules and conditions of storage and control as are applicable under Regulation (EC) No 884/2006.

(14)

The potential for mycotoxin formation has proved to be linked to specific conditions, identifiable essentially on the basis of the weather conditions recorded during the period of growth and, in particular, flowering of the cereals.

(15)

The risks entailed by exceeding the maximum thresholds for admissible contaminants can be identified by the paying agencies or intervention agencies on the basis of the information received from applicants and their own analysis criteria. In order to limit the financial costs, therefore, there is justification for requiring analyses, under the responsibility of the agencies prior to the taking-over of the products, only on the basis of a risk analysis enabling the quality of the products to be guaranteed on entry into the intervention scheme.

(16)

The conditions under which cereals are offered to and taken over by the paying agencies or intervention agencies must be as uniform as possible throughout the Community in order to avoid any discrimination between producers.

(17)

Intervention prices should be increased or reduced to reflect price differences observed on the market for different qualities.

(18)

In addition to requiring an annual stock statement pursuant to Regulation (EC) No 884/2006, the Member States must check the state of preservation of the intervention stocks held.

(19)

Article 2, Articles 6(2)(d) and 7(2)(b) of, and Annex XII(1) to Regulation (EC) No 884/2006, lay down the rules on responsibility. Those Articles and said Annex specify in particular that Member States are to take all measures necessary to ensure the proper preservation of products which have been the subject of Community intervention and that quantities which have deteriorated on account of the normal physical storage conditions or by reason of overlong preservation are to be recorded in the accounts as having left the intervention stock on the date when the loss or deterioration was established. They also specify that a product is to be deemed to have deteriorated if it no longer meets the quality requirements applicable when it was bought in. Consequently, only such deterioration as that laid down in those provisions may be covered by the Community budget. Where a decision taken by a Member State at the time of purchase of a product is inadequate in the light of the risk analysis required by these rules, that Member State should therefore be liable if it later emerges that the product did not comply with the minimum standards. Such a decision would not make it possible to guarantee the quality of the product and, therefore, ensure its proper preservation. Consequently, the circumstances in which a Member State is to be held liable should be specified.

(20)

Details should be given of the information that Member States must forward to the Commission so that a fortnightly statistical report on the state of intervention stocks of cereals can be compiled.

(21)

In the interests of sound management of the system, the information required by the Commission should be sent by electronic means.

(22)

Specific information should also be obtained and listed on a standard regional basis. The regional levels set out in Council Regulation (EEC) No 837/90 of 26 March 1990 concerning statistical information to be supplied by the Member States on cereals production (7) should be used, and Member States should be asked to forward this information to the Commission.

(23)

Equally, the information required by the Commission should be sent on the basis of models containing the information required to manage intervention, made available by the Commission to the Member States, and these models should apply once the Management Committee has been informed and then, where applicable, adapted and updated by the Commission under the same conditions.

(24)

The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for the Common Organisation of Agricultural Markets,

(a)

name of the applicant;

(b)

cereal offered;

(c)

place of storage of the cereal offered;

(d)

quantity, main characteristics and harvesting year of the cereal offered;

(e)

the intervention centre for which the offer is made and, where the second subparagraph of Article 6(1) of this Regulation is applied, the offerer’s undertaking to ensure, in his relations with the storer, that the rules and conditions of storage and control provided for under Article 2(2)(a) of Regulation (EC) No 884/2006 are applied mutatis mutandis to the place of storage referred to in point (c) of this paragraph.

(a)

the quantities present in the place of storage, between the submission of the offer and the takeover of the maize, are below the quantities declared by the offerer in accordance with Article 2(1), without prejudice to a 5 % margin of tolerance;

(b)

the quantities awarded are not in fact supplied by the offerer for takeover by the intervention agency in accordance with Articles 4 and 6.

(a)

for quantities offered but not awarded; and

(b)

for quantities offered and awarded, from the moment that 95 % of the quantity awarded has actually been taken over by the intervention agency.

(a)

for common wheat and durum wheat, those permitted under Regulation (EEC) No 315/93, including the requirements regarding the Fusarium-toxin level for common wheat and durum wheat laid down in points 2.4 to 2.7 of Annex I to Commission Regulation (EC) No 1881/2006 (8);

(b)

for barley, maize and sorghum, those set by Directive 2002/32/EC.

(a)

the standard method for determining matter other than basic cereals of unimpaired quality shall be that set out in Annex III;

(b)

the standard method for determining moisture content shall be that set out in Annex IV. However, Member States may also use other methods based on the principle set out in Annex IV, method ISO 712:1998, or a method based on infrared technology. In case of dispute, only the results of using the method set out in Annex IV shall be accepted;

(c)

the standard method for determining the tannin content of sorghum shall be method ISO 9648:1988;

(d)

the standard method for determining the non-stickiness and machinability of the dough obtained from common wheat shall be that set out in Annex V;

(e)

the standard method for determining the protein content of ground common wheat shall be that recognised by the International Association for Cereal Chemistry (ICC), the standards of which are laid down under heading No 105/2: ‘method for the determination of the protein content of cereals and cereal products’;

However, Member States may use any other method. In such a case, they must furnish the Commission with evidence of recognition by the ICC that the method in question gives equivalent results;

(f)

the method for determining the Zeleny index of ground common wheat shall comply with method ISO 5529:1992;

(g)

the method for determining the Hagberg falling number (amylase activity test) shall comply with method ISO 3093:2004;

(h)

the standard method for determining the rate of loss of vitreous aspect of durum wheat shall be that set out in Annex VI;

(i)

the standard method for determining the specific weight shall comply with method ISO 7971/2:1995;

(j)

the sampling methods and reference analysis methods for determining mycotoxin rates shall be those mentioned in Annex I to Regulation (EC) No 1881/2006 and set out in Annexes I and II to Commission Regulation (EC) No 401/2006 (9).

(a)

within 45 days of takeover, the intervention agency shall itself conduct an inspection involving at least a volumetric check; any difference between the quantity determined by weighing and the quantity estimated in accordance with the volumetric method may not exceed 5 %;

(b)

where the tolerance is not exceeded, the storekeeper shall bear all costs relating to any difference observed, at a later weight check, from the weight entered in the accounts on when the cereals were taken over;

(c)

where the tolerance is exceeded, the cereals shall be weighed forthwith. The costs of weighing shall be borne by the storekeeper, where the weight determined is less than that recorded, or by the Member State, where it is more.

(a)

the stock records show the weight recorded on weighing, the physical quality characteristics at the time of weighing, and, in particular, the moisture content, transsilages if any, and treatments carried out; the weighing may not have been carried out more than 10 months previously;

(b)

the storekeeper declares that the lot offered corresponds in all respects to the details contained in the stock records;

(c)

the quality characteristics established at the time of weighing are the same as those of the representative sample made up from the samples taken by the intervention agency or its representative at a rate of one for every 60 tonnes.

(a)

the weight to be recorded shall be that entered in the stock records, adjusted, where appropriate, to take account of any difference between the moisture content and/or the percentage of miscellaneous impurities (Schwarzbesatz) recorded at the moment of weighing and those determined on the basis of the representative sample. A difference between the percentages of miscellaneous impurities may only be taken into account to reduce the weight entered in the stock records;

(b)

within 45 days of takeover the intervention agency shall make a further volumetric check; the difference between the quantity determined by weighing and the quantity estimated in accordance with the volumetric method may not exceed 5 %;

(c)

where the tolerance is not exceeded, the storekeeper shall bear all costs relating to any difference observed, at a later weight check, from the weight entered in the accounts on takeover;

(d)

where the tolerance is exceeded, the cereals shall be weighed forthwith. The costs of weighing shall be borne by the storekeeper, where the weight determined is less than that recorded, or by the European Agricultural Guarantee Fund, where it is more, account being taken of the tolerance provided for in the first indent of Annex XI(1) of Regulation (EC) No 884/2006.

(a)

determination of the tannin content of sorghum;

(b)

the amylasic activity (Hagberg) test;

(c)

determination of the protein content of durum wheat and common wheat;

(d)

the Zeleny test;

(e)

the machinability test;

(f)

analyses of contaminants.

(a)

the date on which the quantity and minimum characteristics were checked;

(b)

the weight delivered;

(c)

the number of samples taken to make up the representative sample;

(d)

the physical characteristics established;

(e)

the agency responsible for analysing the technological criteria and the results thereof.

(a)

where the moisture content of cereals offered for intervention is less than 13 % for maize and sorghum and 14 % for other cereals, the price increases to be applied shall be those listed in Table I of Annex VII. Where the moisture content of these cereals offered for intervention is higher than 13 % and 14 % respectively, the price reductions to be applied shall be those listed in Table II of Annex VII;

(b)

where the specific weight of cereals offered for intervention differs from the weight/volume ratio of 76 kg/hl for common wheat, and 64 kg/hl for barley, the reductions to be applied shall be those listed in Table III of Annex VII;

(c)

where the percentage of broken grains exceeds 3 % for durum wheat, common wheat and barley, and 4 % for maize and sorghum, a reduction of EUR 0,05 shall be applied for each additional 0,1 percentage point;

(d)

where the percentage of grain impurities exceeds 2 % for durum wheat, 4 % for maize and sorghum, and 5 % for common wheat and barley, a reduction of EUR 0,05 shall be applied for each additional 0,1 percentage point;

(e)

where the percentage of sprouted grains exceeds 2,5 %, a reduction of EUR 0,05 shall be applied for each additional 0,1 percentage point;

(f)

where the percentage of miscellaneous impurities (Schwarzbesatz) exceeds 0,5 % for durum wheat and 1 % for common wheat, barley, maize and sorghum, a reduction of EUR 0,1 shall be applied for each additional 0,1 percentage point;

(g)

where the percentage of piebald grains in durum wheat exceeds 20 %, a reduction of EUR 0,2 shall be applied for each additional percentage point or fraction thereof;

(h)

where the protein content of common wheat is less than 11,5 %, the reductions to be applied shall be those listed in Table IV of Annex VII;

(i)

where the tannin content of sorghum offered for intervention is higher than 0,4 % of the dry matter, the reduction to be applied shall be calculated in accordance with the method laid down in Annex VIII.

(a)

every Wednesday by 12.00 (Brussels time):

(b)

on the Wednesday following the publication of the invitation to tender, the quantities of cereals put up for tender in accordance with Article 2(2) of Commission Regulation (EEC) No 2131/93 (10);

(c)

on the Wednesday following the date on which the Member State defines the lots concerned, the quantities of cereals intended for distribution free of charge to the most deprived persons in the Community in accordance with Article 27 of Regulation (EC) No 1234/2007;

(d)

by the end of the month following the takeover deadline referred to in Article 6(6) of this Regulation, by region set out in Annex III to Regulation (EEC) No 837/90, the average results of specific weight, moisture content, percentage of broken grains and protein content recorded for the lots of cereals taken over.

19.7.2008   

EN

Official Journal of the European Union

L 192/49

(1)

The representative prices and additional duties applicable to imports of white sugar, raw sugar and certain syrups for the 2007/08 marketing year are fixed by Commission Regulation (EC) No 1109/2007 (3). These prices and duties have been last amended by Commission Regulation (EC) No 644/2008 (4).

(2)

The data currently available to the Commission indicate that the said amounts should be changed in accordance with the rules and procedures laid down in Regulation (EC) No 951/2006,

19.7.2008   

EN

Official Journal of the European Union

L 192/51

(1)

Following the change of scope of Directive 2005/55/EC introduced by Regulation (EC) No 715/2007 of the European Parliament and of the Council of 20 June 2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information (2), it is necessary to further amend this Directive by transferring the relevant technical requirements. Consequently, it is also necessary to amend Commission Directive 2005/78/EC (3), which implements that Directive.

(2)

As a consequence of the change of scope, it is necessary to introduce new requirements into the heavy-duty emissions legislation set up by Directive 2005/55/EC. These requirements include test procedures to enable type approval of heavy-duty engines and vehicles with petrol engines.

(3)

In addition, it is necessary to introduce existing requirements for measuring the smoke opacity of diesel engines into Directive 2005/78/EC. This is due to the repeal of Council Directive 72/306/EEC of 2 August 1972 on the approximation of the laws of the Member States relating to the measures to be taken against the emission of pollutants from diesel engines for use in vehicles (4) as provided by Regulation (EC) No 715/2007.

(4)

The measures provided for in this Regulation are in accordance with the opinion of the Technical Committee — Motor Vehicles,

1.

Article 1 is replaced by the following:

‘Article 1

For the purposes of this Directive the following definitions shall apply:

2.

Annexes I, II, III and VI to Directive 2005/55/EC are amended in accordance with Annex I to this Directive.

1.

Article 2 is replaced by the following:

‘Article 2

Measures for the implementation of Articles 3 and 4 of Directive 2005/55/EC are laid down in Annexes II to VII to this Directive.

Annex VI shall apply for the purposes of the type approval of vehicles with compression-ignition engines and of such engines.

Annex VII shall apply for the purposes of the type approval of vehicles with spark ignition engines and of such engines.’

2.

In point 1 of Annex V, Section 2 is replaced by the following:

3.

Annexes VI and VII as set out in Annex II to this Directive are added.

19.7.2008   

EN

Official Journal of the European Union

L 192/60

(1)

Commission Regulation (EC) No 831/2002 of 17 May 2002 implementing Council Regulation (EC) No 322/97 on Community Statistics, concerning access to confidential data for scientific purposes (2) establishes, for the purpose of enabling statistical conclusions to be drawn for scientific purposes, the conditions under which access to confidential data transmitted to the Community authority may be granted and the rules of cooperation between the Community and national authorities in order to facilitate such access.

(2)

Commission Decision 2004/452/EC (3) has laid down a list of bodies whose researchers may access confidential data for scientific purposes.

(3)

The Directorate for Research, Studies, Evaluation and Statistics (Direction de la Recherche, des Études, de l’Évaluation et des Statistiques — DREES) under the joint authority of the Ministry of Labour, Labour Relations and Solidarity, the Ministry of Health, Youth and Sports and the Ministry of the Budget, Public Accounts and the Civil Service, Paris, France, has to be regarded as a body fulfilling the required conditions and should therefore be added to the list of agencies, organisations and institutions referred to in Article 3(1)(e) of Regulation (EC) No 831/2002.

(4)

The measures provided for in this Decision are in accordance with the opinion of the Committee on Statistical Confidentiality,

19.7.2008   

EN FR FR DE DE

Official Journal of the European Union

L 192/63

(1)

Pursuant to Article 30.1 of the ESCB Statute, the European Central Bank (ECB) is provided by the national central banks (NCBs) of the Member States that have adopted the euro with foreign reserve assets and has the full right to hold and manage the foreign reserves that are transferred to it.

(2)

Pursuant to Articles 9.2 and 12.1 of the ESCB Statute, the ECB may manage certain of its activities through the euro area NCBs and has recourse to the euro area NCBs to carry out certain of its operations. Accordingly, the ECB considers that the euro area NCBs should manage the foreign reserves transferred to it as its agents.

(3)

The involvement of the euro area NCBs in the management of the foreign reserve assets transferred to the ECB and the transactions relating to such management require specific documentation for operations involving the ECB’s foreign reserves.

(4)

Guideline ECB/2006/28 of 21 December 2006 on the management of the foreign reserve assets of the European Central Bank by the national central banks and the legal documentation for operations involving such assets (1) has already been amended once since its adoption. A number of drafting improvements have been suggested and it is proposed to recast Guideline ECB/2006/28 in the interests of clarity and transparency,

—

‘euro area NCB’ means the NCB of a Member State that has adopted the euro, and

—

‘European jurisdictions’ means the jurisdictions of all Member States that have adopted the euro in accordance with the Treaty, as well as Denmark, Sweden, Switzerland and the United Kingdom (England and Wales only).

(a)

the FBE Master Agreement for Financial Transactions (Edition 2004) shall be used for operations with counterparties organised or incorporated under the laws of any of the European jurisdictions and under the laws of Northern Ireland and Scotland;

(b)

the Bond Market Association Master Repurchase Agreement, (September 1996 version) shall be used for operations with counterparties organised or incorporated under US federal or state laws; and

(c)

the TBMA/ISMA Global Master Repurchase Agreement (2000 version) shall be used for operations with counterparties organised or incorporated under the laws of any jurisdiction other than those listed in subparagraphs (a) or (b).

(a)

the FBE Master Agreement for Financial Transactions (Edition 2004) shall be used for operations with counterparties organised or incorporated under the laws of any of the European jurisdictions;

(b)

the 1992 International Swaps and Derivatives Association Master Agreement (Multicurrency — cross-border, New York law version) shall be used for operations with counterparties organised or incorporated under US federal or state laws; and

(c)

the 1992 International Swaps and Derivatives Association Master Agreement (Multicurrency — cross-border, English law version) shall be used for operations with counterparties organised or incorporated under the laws of any jurisdiction other than those listed in subparagraphs (a) or (b).

(a)

a master netting agreement governed by English law and drafted in English in the form set out in Annex IIa shall be concluded with all counterparties, with the exception of the counterparties specified in point (b), (c) and (d);

(b)

a master netting agreement governed by French law and drafted in French in the form set out in Annex IIb shall be concluded with counterparties incorporated in France;

(c)

a master netting agreement governed by German law and drafted in German in the form set out in Annex IIc shall be concluded with counterparties incorporated in Germany; and

(d)

a master netting agreement governed by New York law and drafted in English in the form set out in Annex IId shall be concluded with counterparties incorporated in the United States.