3.12.2008   

EN

Official Journal of the European Union

L 323/1

(1)

On 4 September 2007, the Commission published a notice (2) initiating an anti-dumping proceeding on imports into the Community of citric acid originating in the People’s Republic of China (the PRC). On 3 June 2008, the Commission, by Regulation (EC) No 488/2008 (3) (the provisional Regulation) imposed a provisional anti-dumping duty on imports of citric acid originating in the PRC.

(2)

It is noted that the proceeding was initiated following a complaint lodged by the European Chemical Industry Council (CEFIC) (the complainant) on behalf of a producer representing a major proportion of the total Community production of citric acid, in this case more than 25 %.

(3)

As set out in recital 14 of the provisional Regulation, the investigation of dumping and injury covered the period from 1 July 2006 to 30 June 2007 (‘investigation period’ or ‘IP’). With respect to the trends relevant for the injury assessment, the Commission analysed data covering the period from 1 January 2004 to the end of the IP (period considered).

(4)

Following the imposition of provisional anti-dumping duties on imports of citric acid originating in the PRC, several interested parties submitted comments in writing. The parties who so requested were also granted the opportunity to be heard.

(5)

The Commission continued to seek and verify all information it deemed necessary for its definitive findings. In particular, the Commission intensified the investigation with regard to Community interest aspects. In this connection, one additional verification visit was carried out after the imposition of the provisional measures at the premises of the following user of citric acid in the European Union:

In addition, as explained in detail in recital 11, verification visits were carried out at the premises of the following exporting producers:

(6)

All parties were informed of the essential facts and considerations on the basis of which it was intended to recommend the imposition of a definitive anti-dumping duty on imports of citric acid originating in the PRC and the definitive collection of the amounts secured by way of the provisional duty. They were also granted a period within which they could make representations subsequent to this disclosure.

(7)

The oral and written comments submitted by the interested parties were considered and, where appropriate, the findings were modified accordingly.

(8)

One exporting producer reiterated the claim that the public version of the complaint did not contain any prima facie evidence of material injury to the Community industry, preventing the interested parties from exercising their rights of defence. According to this exporting producer, the case should not have been initiated due to lack of sufficient evidence included in the complaint. In this respect, it should be noted that the public version of the complaint contained all the essential evidence and non-confidential summaries of data provided under confidential cover in order for interested parties to exercise their right of defence throughout the proceeding. Therefore, this argument should be rejected.

(9)

Some interested parties argued that the product concerned, as set out in recital 16 of the provisional Regulation, and the like product are not alike as stated in recital 18 of the provisional Regulation since they would not share the same physical and chemical characteristics and are not used for the same purposes. According to those interested parties, the statement in recital 18 of the provisional Regulation fails to address the arguments brought forward during the investigation and is in contradiction with the adjustment made by the Commission in the undercutting calculations for de-caking certain quantities of the product concerned after arrival in the EU. It is firstly noted that the investigation has shown that the product concerned and the like product are both used in the same basic applications, i.e. mainly for the household cleaning (auto dish-wash products, detergents, water softeners) and as additives in food and beverages, but also in the personal care/cosmetics area. The claim that the product concerned would in fact not be used by certain users in the detergents, food and beverages industry because of its smell and/or colour was not further substantiated by evidence. The investigation has shown that only in one niche application, i.e. the pharmaceutical area, only the European citric acid was indeed used because of the cost of the special compliance test which is required. Since the pharmaceutical area represents only a small portion of the users’ total business, running the compliance test was not considered as economically justifiable business decision. Secondly, there is no contradiction between the adjustment made in the undercutting calculation for de-caking parts of the product concerned after importation, as mentioned in recital 64 of the provisional Regulation, and the statement that both products are alike as it is sufficient that the product concerned and the like product share the same basic chemical, physical and technical characteristics and have the same basic uses, which is the case. It is further noted that the caking as such does not happen because of specific characteristics of the Chinese product, but happens because every citric acid, regardless of its origin, due to its chemical composition shows a tendency to cake when being exposed to humidity and changes of temperature. As naturally only the product concerned is exposed over a longer period of time to humidity and changes of temperature during the shipping time to the EU, the problem mainly occurs for the product concerned, but not exclusively. Therefore, the adjustment simply takes account of the fact that the de-caking incurs additional costs mainly for the product concerned as the quantities that are affected by the caking either are de-caked (by breaking and sieving or liquefying the caked product) before further selling or are sold with a rebate. Thus, this claim should be rejected.

(10)

In view of the above, it is definitively concluded that the product concerned and citric acid produced and sold in the analogue country, Canada, as well as the one produced and sold by the Community industry on the Community market are alike, within the meaning of Article 1(4) of the basic Regulation and recitals 15 to 17 of the provisional Regulation are hereby definitively confirmed.

(11)

At the provisional stage of the investigation the market economy treatment (MET)/individual treatment (IT) claims of all known exporting producers were investigated. Only a number of the exporting producers had been included in the sample and one company was granted individual examination. In their comments to the provisional Regulation, a number of parties have claimed that this approach has some shortcomings. The matter was therefore reconsidered and, in view also of the fact that it became possible, given the circumstances of the case such as for example the available resources, to increase the number of companies that could reasonably be investigated, it was finally decided that sampling should not be applied. Given that every cooperating company has been granted at least IT at the provisional stage, an individual duty rate should be established for each of them. As a consequence, three companies not selected in the sample or individually examined at the provisional stage were requested to submit questionnaire replies. However, only two of these companies submitted a questionnaire reply. The third company did not submit a questionnaire reply and was not investigated further.

(12)

The company referred to in recital 27 of the provisional Regulation insisted that the subsidy mentioned in that recital was not for the purposes of the product concerned and that the non-payment of rents was justified by private inter-group arrangements for the setting off of profits against rent due. However, in the absence of any new elements or information concerning the issue, and in view of the distorting effects on the accounting of the practices mentioned concerning rent, the conclusions in respect of this company remain unchanged and are hereby definitively confirmed.

(13)

Further to provisional disclosure one group of companies referred to in recital 25 of the provisional Regulation claimed that it had received loans on the basis of a detailed financial analysis of one of the banks and after having been granted a high credit rating. However, the fact that a bank formally carried out an analysis and granted a high credit rating does not eliminate the fact that the company in question gave guarantees to other companies despite having mortgaged the majority of its non-current assets, nor the fact that the loans granted to the company in question were granted by a bank found to be under State influence. Therefore, the conclusions in respect of this company remain unchanged and are hereby definitively confirmed.

(14)

One of the companies referred to in recital 26 of the provisional Regulation insisted that it was penalised for the fact that its majority shareholder had acquired land use rights for a good price and then correctly had them revalued according to market price developments. However, the enormous difference between the acquisition price and later evaluations (1 000-2 000 %) could not be explained. Therefore, in the absence of any new elements or information concerning the acquisition and subsequent revaluation of the land use rights and in view of the advantages that the company received by obtaining assets for prices significantly below market value, the conclusions in respect of this company remain unchanged and are hereby definitively confirmed.

(15)

In the absence of any other comments concerning MET, recitals 25 to 30 of the provisional Regulation are hereby definitively confirmed.

(16)

Five companies or groups of companies that were not granted MET fulfilled all the criteria set out in Article 9(5) of the basic Regulation and were granted IT. One company which had been granted provisionally IT, failed to further cooperate and, thus, no IT was finally granted (see recitals 11 and 34).

(17)

As explained in recital 11, following comments to the provisional Regulation, it was decided that sampling should not be applied and the three companies not selected in the sample or individually examined at the provisional stage were requested to submit questionnaire replies. Normal value was established for one of these companies (Laiwu Taihe), which was granted MET and which submitted a questionnaire reply.

(18)

Since the sole company which could be granted MET and which was examined individually at the provisional stage of the investigation did not submit any comments on normal value, the findings in recitals 35 to 39 of the provisional Regulation are hereby definitively confirmed.

(19)

As for the only other company which was granted MET (Laiwu Taihe) and which was further investigated for the reasons explained in recital 11, it was first verified whether the company’s total domestic sales of the like product were representative within the meaning of Article 2(2) of the basic Regulation. Domestic sales of the product concerned were slightly below 5 % of the exports of the like product to the Community. However, such lower ratio is nonetheless of sufficient magnitude to provide for a proper comparison and the domestic prices of the like product are considered representative given also the overall domestic sales of the company in question. Therefore, they were used to determine normal value.

(20)

For each product type sold for export to the Community by Laiwu Taihe, it was established whether a directly comparable product type was sold on the domestic market. Product types were considered to be directly comparable when they were of the same product type (defined by the chemical composition), comparable granulation and packing. It was established that for only one product type sold for export to the Community a directly comparable product type was sold on the domestic market.

(21)

It was subsequently examined whether the domestic sales of this product type could be regarded as being sold in the ordinary course of trade pursuant to Article 2(4) of the basic Regulation. It was established that there were profitable domestic sales of this product type to independent customers during the IP, and therefore in the ordinary course of trade.

(22)

Since the volume of profitable sales of this product type represented 80 % or less of the total sales volume of that type, normal value was based on the actual domestic price, calculated as a weighted average of profitable sales of that type only.

(23)

As domestic prices of Laiwu Taihe could not be used in order to establish normal value for the other product types, normal value was constructed in accordance with Article 2(3) of the basic Regulation.

(24)

When constructing normal value pursuant to Article 2(3) of the basic Regulation, the amounts for selling, general and administrative costs (SG & A) and for profits have been based, pursuant to Article 2(6) first introductory subparagraph of the basic Regulation, on the actual data pertaining to the production and sales, in the ordinary course of trade, of the like product, by Laiwu Taihe.

(25)

In their comments to the provisional Regulation, some parties claimed that Canada would not be an appropriate analogue country given the fact that the United States of America (US) have recently initiated an anti-dumping proceeding against citric acid originating, inter alia, in Canada. Thailand was therefore again brought forward as an alternative analogue country. However, the analysis showed that while anti-dumping measures on citric acid originating in Canada were not in force during the IP, anti-dumping measures were in force during the IP on citric acid originating in Thailand. The latter measures were imposed by India and consisted in substantial anti-dumping duties of USD 374,36/tonne, which only expired in August 2007, i.e. two months after the end of the IP. Therefore, also considering the arguments already mentioned in recitals 42 and 43 of the provisional Regulation and the fact that the US investigation on citric acid originating in Canada was still ongoing at the moment of finalising the Community investigation, it is concluded that there is no reason why Thailand should be preferred to Canada as an analogue country.

(26)

According to Article 2(7)(a) of the basic Regulation, normal value for the exporting producers mentioned in recital 11 above that were not granted MET had to be established on the basis of the prices or constructed value in the analogue country.

(27)

In the case of the two companies which were further investigated for the reasons explained in recital 11 above, the export price was established following the same methodology explained in recitals 45 to 47 of the provisional Regulation.

(28)

Since no companies submitted any comments on export prices, the findings contained in recitals 45 to 47 of the provisional Regulation are hereby definitively confirmed.

(29)

In its comments to the provisional Regulation and to the definitive disclosure, one group of companies contested the deduction of a notional commission for sales via a trader in the PRC, given that the trader was an integral part of the group. It was, however, established that the trading company did indeed perform the function of an independent trader, and that the economic result of the relationship of the two companies is that of a principal and an agent. It was established that the trader was not only trading products produced by related companies, but also products produced by independent producers. Moreover, the company in question did also sell directly to non-related customers. Therefore, the claim was rejected, and pursuant to Article 2(10)(i) of the basic Regulation, an allowance based on SG & A and profit of unrelated importers was deducted.

(30)

In its comments to the provisional Regulation, one exporting producer claimed that cost for currency conversion should not be taken into account, as pursuant to Article 2(10)(j) of the basic Regulation, exporters shall be granted 60 days to reflect a sustained movement in exchange rates during the investigation period. This claim could be accepted, and the dumping margin of the exporting producer was adjusted accordingly.

(31)

In the provisional Regulation, a deduction to the export price was made in respect of non-refundable VAT charged on export sales, pursuant to Article 2(10)(b) of the basic Regulation. One exporting producer claimed in its comments to the provisional Regulation that no such adjustment to the export price should have been made, as Article 2(10)(b) of the basic Regulation would only relate to normal value. It is acknowledged that the adjustment provided for under Article 2(10)(b) of the basic Regulation only refers to the calculation of the normal value. In fact the above mentioned deduction to the export price is due and should be done pursuant to Article 2(10)(k) of the basic Regulation. While examining this claim, it was found that a clerical error had been made in calculating the adjustment for the company in question, and that the same error had been made in respect of other companies. These inaccuracies were rectified and have led to slight downward corrections in the dumping margins previously calculated for these companies.

(32)

In examining the claim referred to in recital 31, it was found that the necessary adjustment had not been made in the case of one company which was granted individual treatment. This has been rectified and results in a slight increase in the dumping margin for that company.

(33)

In the absence of any other comments in respect of comparison, and apart from the changes indicated in recitals 30, 31 and 32 above, recitals 48 to 50 of the provisional Regulation are hereby definitively confirmed.

(34)

In the case of the two companies which were further investigated for the reasons explained in recital 11 above, the dumping margin was established by following the same methodology explained in recital 51 of the provisional Regulation. In the case of the one company which did not submit a questionnaire reply and was not further investigated, as explained in recital 11 above, this company is considered as non-cooperating and findings are based on facts available in accordance with Article 18(1) of the basic Regulation. In this case, considering the high level of cooperation mentioned in recital 19 of the provisional Regulation, the company has been attributed the highest dumping margin found in respect of all other companies.

(35)

The dumping margins of all the companies which had already been individually investigated at the provisional stage were recalculated, to correct the inaccuracies referred to in recitals 30, 31 and 32. This recalculation has led to slight corrections of the dumping margins.

(36)

In the absence of any new element, the conclusions in recital 53 of the provisional Regulation, which relates to the level of cooperation, are hereby definitively confirmed.

(37)

On this basis, the definitive dumping margins expressed as a percentage of the CIF Community frontier price, duty unpaid, are:

(38)

Some interested parties claimed that SA Citrique Belge NV ceased production after the IP and was only trading the product concerned imported from its related company in China (DSM Citric Acid (Wuxi) Ltd) arguing, thus, that SA Citrique Belge NV should not constitute part of the Community industry. This claim was however not substantiated by any evidence and from the data submitted by SA Citrique Belge NV, it follows that the company continued production.

(39)

One interested party also complained that in recital 56 of the provisional Regulation only a range of imports of SA Citrique Belge NV from its related Chinese producer during the IP was given. This party claimed that the trend of all imports of the Community industry from related and unrelated companies should be given for the whole period considered since imports constitute an important factor for the assessment of community production and consequently for the conclusion of the existence of injury. The investigation has indeed shown that during the whole period considered the imports of the Community industry were insignificant, i.e. between 1 % and 6 % of production — this range is given for confidentiality reasons. Therefore the argument should be rejected and recitals 55 to 58 of the provisional Regulation are hereby definitively confirmed.

(40)

As no new and substantiated information was received with regard to Community consumption recitals 59 and 60 of the provisional Regulation are hereby definitively confirmed.

(41)

With regard to import volumes, market share and prices, no new and substantiated information was found or received, therefore, and in the absence of any claims or arguments from any interested parties relating to volume and prices of the imports concerned, recitals 61 to 63 of the provisional Regulation are hereby definitively confirmed.

(42)

During the provisional stage of the investigation, in order to compare the product concerned and the citric acid produced by the Community industry at the same level of trade, an adjustment for the markup (including SG & A) of unrelated importers was made in the price undercutting calculation and, additionally, an adjustment was made for special treatment costs incurred by importers in the Community to de-cake certain volumes of the product concerned before further selling. However, due to a minor revision of the data concerning the level of trade adjustment, the weighted average price undercutting margin which was calculated and found to be 17,42 % has been revised downwards to 16,54 %.

(43)

After final disclosure, one Community producer claimed that the level of trade adjustments should also be made in relation to sales of the Community industry, i.e. that its sales made via traders should be taken into account. In this respect it should be noted that a level of trade adjustment was made indeed for the Community industry’s sales prices before comparing them with the import prices of the product concerned.

(44)

The same Community producer also requested that the adjustment for special treatment costs to de-cake certain volumes of the product concerned should also apply to the like product. However, this request was not further substantiated with data concerning the specific costs incurred by this Community producer and, thus, it could not be accepted. In view of the above, recital 64 of the provisional Regulation is hereby definitively confirmed.

(45)

Some interested parties claimed that the Commission had not analysed thoroughly all injury indicators and thus, no proper and complete link between the situation of the Community industry and the Chinese imports was established. In particular, it was claimed that there had been no assessment of the positive developments of certain injury indicators. It should be noted that even though some injury indicators show a positive development which was acknowledged in recital 79 of the provisional Regulation, the overall picture points to a deterioration of the situation of the Community industry. The moderate improvement of production, production capacity, capacity utilisation, sales volume and unit price levels as well as the increased cost efficiency described in recital 76 of the provisional Regulation reflect the efforts of the Community producers to remain competitive over the period considered and to benefit from the increased consumption. However, as can be seen in recital 68 of the provisional Regulation, despite these efforts the Community industry lost 5 percentage points (i.e. the market share decreased from 54 % to 49 %) of its market share which was mostly taken by Chinese low-priced, dumped imports. As an aggravating factor, it is also mentioned that the Community industry could have expected to gain some of the market share hold by those three Community producers of citric acid which closed down as of 2004. But on the contrary, the Community industry could neither take over customers from the three closed EC producers, nor benefit from the increased consumption. This significant loss of market share, coupled with the clearly deteriorating financial indicators, i.e. profitability, return on investment and cash flow, show that the overall situation of the Community industry deteriorated over the period considered and appeared to be at its worst during the IP. In addition, stocks’ decrease cannot be assessed as a positive development of the Community industry’s situation in this case since it cannot be considered as a meaningful indicator, given the nature of the product which does not allow long-term storage.

(46)

One interested party argued that investments are not constant in this field but follow certain investments cycles. While even under normal market conditions it can certainly not be expected that important investments would be made every year, the fact that over the whole period neither of the two remaining Community producers carried out any important investment is considered as a sign that the low profitability (which turned into loss as of 2006) did not allow any important investment to be made. It is hence considered that investment is a particularly meaningful injury indicator in this case.

(47)

Finally, the Community producers’ ability to raise capital should be considered. In this regard, the investigation has shown that both Community producers, due to the deteriorating citric acid business environment, had difficulties to raise capital.

(48)

One interested party claimed that the complainant was at least able to raise capital for other products since it announced in February 2007 the construction of a new glucose plant. In this respect it is noted that the scope of the investigation is limited to the ability to raise capital in relation to the product in question, i.e. citric acid, which appeared to have been negatively affected by the financial situation of the Community industry.

(49)

Based on the above, the conclusion set out in recital 72 of the provisional Regulation on the Community industry’s investment is hereby definitively confirmed.

(50)

One interested party claimed that the findings set out in recital 73 of the provisional Regulation could not be reconciled with the accounts of both Community producers, in particular none of the accounts would show the mentioned extraordinary restructuring cost. In this respect, it is noted that throughout the period considered, the extraordinary result of one Community producer has to a large extent been affected by restructuring efforts, which was presented in the accounts either as a cost or a revenue, depending on whether it concerns the addition or the release of a provision and by royalties paid to the mother company in Switzerland. Therefore, it was deemed more appropriate to use the operating result as a basis for the injury analysis rather than the net profit.

(51)

The same party claimed that the fine for anti-competitive behaviour that was imposed in 2005 on both mother companies of the Community producers could have influenced the profit situation of the Community industry. Any effects stemming from the fine (both the adding and releasing of provisions) have been recorded under extraordinary result. As mentioned in recital 50, the operating result has been used as an injury indicator in this proceeding. Therefore, the fine that was imposed on the Community producers, could not have affected the profit situation used in the injury analysis. In addition, it should be noted that Community industry was loss making as of 2006 until the end of IP. Therefore, the trends as presented in the provisional Regulation are hereby definitively confirmed.

(52)

Several interested parties pointed to some inconsistency between the trend concerning profitability and the return on investment. Indeed, in contrast to profitability which was established by expressing the operating profit on sales of the like product to unrelated customers as a percentage of the turnover of these sales, return on investment was calculated as the net profit in percentage of net book value of investments. In order to be consistent in the calculation of all injury indicators, the calculation of return on investment was revised, based on the operating profit in percentage of the net book value of investments. The revised figures are as follows:

(53)

The corrected figures however follow the same trend and therefore do not alter the conclusion drawn in recital 74 of the provisional Regulation, which is hereby definitively confirmed.

(54)

In the absence of any new and substantiated information or argument concerning production, sales volume, market shares, unit sales price, stocks, cash flow, employment, productivity, wages and magnitude of the dumping margin, the findings in recitals 66 to 71, 73 and 75 to 78 of the provisional Regulation are hereby definitively confirmed. In addition, the corrected figures given for return on investment leave unaffected the trends as set out in recitals 73 to 74 of the provisional Regulation. Therefore, considering the clearly deteriorating financial indicators, such as profitability, return on investment and cash flow coupled with the significant loss of market share, the conclusion laid down in recital 81 of the provisional Regulation that that the Community industry suffered material injury is hereby definitively confirmed.

(55)

As mentioned in recital 42, it is definitively concluded that during the IP, the average prices of imports from the PRC undercut the average Community industry prices. Following a minor revision in the calculations, the average undercutting margin was found to be 16,54 %. This slight downwards revision cannot affect the conclusions on the effect of the dumped imports set out in recitals 83 to 85 of the provisional Regulation, which are hereby definitively confirmed.

(56)

Some importers claimed that the Community industry self-inflicted the injury as it followed a ‘price-over-volume’ strategy, i.e. to serve only the high-end segment of the market, abstaining from producing and selling the low-end product. According to the same importers the consequence was that the Community industry could not benefit from the increased demand of low-end citric acid, and thereby lost market share and deteriorated its financial performance. The investigation, however, showed that both the product concerned and the like product are basically used in the same applications and compete mainly in the same segments (see recital 9), with the exception of one niche market representing a small portion of the European citric acid market share, which was supplied so far solely by the Community industry. The investigation has indeed established that the Community industry was present in the low-end segment of the market. Therefore, this argument should be rejected.

(57)

Moreover, some interested parties considered the lack of any investment during the period considered and in particular during the years when the Community industry achieved better results, i.e. 2004-2005, as a factor which contributed to the market share loss and consequently to the deterioration of its situation. The investigation showed the Community industry did not operate at full capacity and that its capacity utilisation was stable throughout the period considered. Therefore, some production increase would have been possible in case of stronger demand without further investments. Moreover, given that the profitability of the Community industry was insufficient, i.e. below target profit, throughout the period considered and even turned into negative, it is considered to be an economically justifiable business decision not to invest significant amounts in the production of the like product. This argument is therefore not convincing and should be rejected.

(58)

Almost all interested parties reiterated their claims that any injury found would be due to the reform of the sugar market and the consequent abolition of the production refunds in 2006 and/or the rising energy prices.

(59)

One interested party claimed that in the annual report of one Community producer relating to 2007, it was stated that the raw material availability was limited due to the European sugar regime which resulted in higher cost. In this respect, it is noted that the mentioned Community producer does not use sugar as main raw material, but molasses and as explained in recital 89 of the provisional Regulation was thus never subject to production refunds. The cost increase for molasses was however not substantial, but corresponding to the increase of world market prices for sugar. As concerns the situation of the other Community producer which was described in detail in recitals 90 to 94 of the provisional Regulation, no new or substantiated information or argument was received. The overall conclusion laid down in recital 93 that the reform of the sugar market had no considerable impact on the cost situation of the Community industry is hereby definitively confirmed.

(60)

The same interested party claimed that there would indeed be a link between sugar prices and biofuel production as this was acknowledged in a study of the Commission on ‘The causes of the food price crisis’ (4). In this respect it is noted that the Commission, as already stated in recital 98 of the provisional Regulation, had access to the cost data of both Community producers and was therefore in a position to analyse the concrete cost of raw materials for both Community producers concerning the production of citric acid. Any link between sugar prices and biofuel production has therefore been investigated and taken into account in assessing the impact of EU sugar market reform and the increasing biofuel production. Based on this, it could be concluded and is hereby definitively confirmed that these factors had no considerable impact on the injury found and suffered by the Community industry.

(61)

In addition, it has to be stated that any cost increase concerning molasses, sugar or glucose or energy which was acknowledged in the provisional Regulation (see recitals 93 and 96 thereof) are not the source of the injury of the Community industry as in a normal market situation, the Community industry could have passed on these increased costs at least to a certain extent to its customers. However, the investigation showed the increasing presence of dumped imports which undercut the prices of the Community industry significantly. Thus, as stated in recital 84 of the provisional Regulation there was a price depression and the Community industry could only pass on a fraction of its own cost increases to its customers, which led to the deterioration of its financial situation and a further loss of market share.

(62)

Finally, it has to be mentioned that the investigation has shown that the Chinese costs of production of citric acid had also increased. These increased costs were however not translated into higher sales prices, but on the contrary, unit sales prices even decreased by 6 percentage points during the period considered as shown in recital 63 of the provisional Regulation.

(63)

On the basis of the above, the claims should be rejected and recitals 88 to 99 of the provisional Regulation are hereby definitively confirmed.

(64)

Some interested parties reiterated their claims that the loss of market share for the European producers was self-inflicted because of the citric acid cartel (1991 to 1995) in which both the complainant and the other European producer participated and which was claimed to be the reason of the boost of Chinese citric acid imports. This allegation was not further substantiated and, therefore, did not alter the conclusion drawn in recital 100 of the provisional Regulation that the big boost of the dumped imports happened several years after the cartel ceased to exist.

(65)

On the basis of the above, it is definitively concluded that the consequences of the anti-competitive practices in which the Community industry took part did not contribute to the material injury suffered by the Community industry.

(66)

Some interested parties reiterated their claims that the drop in prices of Chinese citric acid during the IP was largely due to the unfavourable exchange rate from the US dollar to euro, the fact that prices for citric acid are generally expressed in US dollar on world markets and the difficulty to adjust prices, which are generally negotiated annually, to the new currency situation.

(67)

It is recalled that in recital 104 of the provisional Regulation, the impact of any currency fluctuation is not considered to be significant because even if the devaluation of the US dollar against the euro between 2004 and the IP, which amounted to 4,97 %, after a fine-tuning of provisional calculations, would have been fully disregarded, there would still be undercutting of over 10 %.

(68)

Consequently, it is definitively confirmed that the appreciation of the euro in respect of the US dollar was not such as to break the causal link between the established injury to the Community industry and the imports concerned. The claim should, therefore, be rejected.

(69)

In the absence of any further new and substantiated information or argument, recitals 82 to 110 of the provisional Regulation are hereby definitively confirmed.

(70)

In the light of the above, the provisional finding of existence of causal link between the material injury suffered by the Community industry and the dumped Chinese imports is hereby definitively confirmed.

(71)

Comments relating to the need to take into consideration certain important post-IP developments have been received both from certain Community industry producers as well as from the cooperating exporting producers and importers. It is noted that in accordance with Article 6(1) of the basic Regulation, information concerning dumping and injury relating to a period subsequent to the investigation period shall, normally, not be taken into account. However, in view of the statement made in recitals 119 and 129 of the provisional Regulation, it was exceptionally considered necessary to collect data and information related to the period after June 2007 until July 2008.

(72)

Some interested parties claimed that the imposition of measures would be unnecessary as the profitability of the Community industry attained high levels post-IP due to significantly increased prices and that the market had regulated itself. During the IP, there was evidence of dumping and injury and this injury was caused to a significant degree by the price depression stemming from the dumped imports. Import statistics show an average increase of Chinese sales prices of only 12 % after the IP. Compared to the undercutting level of 16,54 % found during the IP, this increase is clearly not sufficient as it would not allow the Community industry to increase its sales price to a sustainable level without risking losing more customers in the absence of anti-dumping measures. Concerning the price level of the Community industry, it was found that the Community industry managed to increase its prices moderately as of the first quarter of 2008 which appeared to have improved the financial situation of the Community industry. These price increases are, nevertheless, in a close timely correlation with the initiation of this proceeding and it thus appears that the situation of the Community industry may have improved because of the potential anti-dumping measures on imports from the PRC. It was hence concluded that there was no self-regulation of the market, or the self-regulation was insufficient to render the imposition of measures unnecessary. The argument should be thus rejected.

(73)

In the absence of any new and substantiated information or argument with regard to the interest of the Community industry, the conclusion made in recitals 112 to 115 of the provisional Regulation regarding the interest of the Community industry are hereby definitively confirmed.

(74)

Most interested parties reiterated their claim that the imposition of measures would significantly reduce competition in the European market and create a duopolistic market situation. It is considered, however, that in view of the strong market position that the Chinese exporting producers obtained over the last years, the imposition of measures would not drive them out of the Community market, but merely restore a level playing field allowing the Community industry and the Chinese exporting producers to compete on equal terms. Moreover, a reasonable price increase on the Community market could indeed attract more imports from other third countries with own production, such as Israel and South America which were likely less interested in exporting to a market with depressed prices.

(75)

On the other hand, should anti-dumping measures not be imposed, it cannot be excluded that the Community industry would have to cease its manufacturing activities for this particular business, leading to the opposite scenario, i.e. a dominant position of the Chinese imports.

(76)

Most interested parties also claimed that should Chinese imports stop due to the imposition of measures the security of supply would be at stake because the Community industry cannot satisfy the demand on the EU market even if both producers would produce at 100 % of their capacity. This would be aggravated by the fact that the demand of citric acid is predicted to even increase with the effects of Regulation (EC) No 648/2004 of the European Parliament and of the Council of 31 March 2004 on detergents (5). In this Regulation, the Commission undertakes to conduct a review regarding the use of phosphates in detergents and, based on the results, to submit a proposal for appropriate action. Following this obligation, the Commission submitted a report, but did not propose any action. However, even if phosphates would be completely banned from the detergents’ industry, their main substitutes are zeolites and to a smaller extent only citric acid.

(77)

Furthermore, several facts contradict the assumption that Chinese imports would indeed stop.

(78)

In addition, the Community industry announced to take appropriate measures in order to increase its production capacity. The complainant announced to increase its production capacity significantly. According to the press release issued in July 2008, those additional capacities should be fully available as of mid 2009 with the first increase already available in January 2009. This should indeed contribute to satisfy the demand in the EU. It is further noted that the other Community producer announced in August 2008, that it would close its production site in China by the first quarter of 2009 and that it will focus on its production site in the Community.

(79)

Moreover, a more attractive price level in the EU market would probably also increase imports from third countries and with those alternative sources, supply appears to be better secured as if users would only depend on Chinese citric acid. During the 12 months following the IP, imports from Israel for example have increased by 30 %.

(80)

It therefore appears that the imposition of measures would not drive the Chinese exporting producers out of the market, but would rather restore a level playing field which secures alternative sources of supply.

(81)

Some interested parties claimed that due to sampling, the Commission only received the results for the largest importers in Europe, thus lacking information of the effects of duties on the overwhelming majority of small and medium sized importers. However, no party raised any objection against the selected sample and, therefore, the sample is considered to be representative for all importers.

(82)

Given that citric acid, on average, constitutes only 1 % of the importers’ total revenue, it is expected that the effects of an anti-dumping duty will be diluted in the companies’ overall results.

(83)

In the absence of any further comments from importers, the conclusions made in recitals 116 to 120 of the provisional Regulation are hereby definitively confirmed.

(84)

After the provisional stage, the Commission intensified the investigation as regards the possible impact of measures on users. To this end, additional information was requested from the users and national associations and an additional verification visit was carried out at one Community user’s premises.

(85)

The information received confirms the provisional finding, based on users’ questionnaire incomplete responses as mentioned in recitals 121 and 122 of the provisional Regulation, that the effect of citric acid in the total cost of production of the users is relatively moderate. While the share of citric acid in the users’ cost of production naturally depends on the product, it was found to range generally between less than 1 % and 20 %. The additional information mentioned above has also confirmed the provisional findings that a duty at the level of the underselling margin would have a very limited effect on the cost of production of the cooperating users. After the definitive disclosure, two of the main industrial users of citric acid argued that citric acid represents a high proportion in certain of their products and, thus, the effect of the duties would be significant for them. Firstly, it should be noted that both users produce a wide range of products in which citric acid is used in different proportions. Secondly, based on the data submitted, it could not be proved that those users sold predominantly those products in which the cost of citric acid were more important. Finally, the argument was not further substantiated by any additional data. Therefore, this argument could not be accepted.

(86)

The above additional analysis concerning the interest of the importers and the users in the Community has not altered the provisional conclusions in this respect. Even if in certain cases the burden would need to be fully borne by the importer/user, any negative financial impact on the latter would in any event be not significant. On this basis, it is considered that the conclusions regarding the Community interest as set out in the provisional Regulation are not altered. In the absence of any other comments, they are therefore hereby definitively confirmed.

(87)

Several interested parties contested the profit margin level provisionally used and claimed the 9 % profit is excessive, arguing that the Community industry during the period considered never actually achieved this profit level. It is acknowledged that indeed only one Community producer achieved this profit level in the absence of dumping, i.e. in 2001, whereas the other did not. The methodology used to determine the injury elimination level was thus re-examined and it was deemed more appropriate to use as profit margin the weighted average profit margin that was achieved by both European producers in 2001, i.e. 6 %.

(88)

On the basis of the above, it is concluded that the Community industry could reasonably expect to achieve a pre-tax profit margin of 6 % in the absence of dumped imports and this profit margin was used in the definitive findings.

(89)

The Chinese import prices were compared, for the IP, with the non-injurious price of the like product sold by the Community industry on the Community market. The non-injurious price has been obtained by adjusting the sales price of the Community industry in order to reflect the profit margin, as now revised. The difference resulting from this comparison, when expressed as a percentage of the total CIF value, amounted to a range from 8,3 % to 42,7 % for each company, i.e. less than the dumping margin found, except for one company.

(90)

In view of the conclusions reached with regard to dumping, injury, causation and Community interest, and in accordance with Article 9(4) of the basic Regulation, a definitive anti-dumping duty should be imposed at the level of the lowest of the dumping and injury margins found, in accordance with the lesser duty rule. In all but one case, the duty rate should accordingly be set at the level of the injury found.

(91)

On the basis of the above, the definitive duties should be as follows:

(92)

During the course of the investigation, six exporting producers in the PRC offered acceptable price undertakings in accordance with Article 8(1) of the basic Regulation.

(93)

The Commission, by Decision 2008/899/EC (6), accepted these undertaking offers. The Council recognises that the undertaking offers eliminate the injurious effect of dumping and limits to a sufficient degree the risk of circumvention.

(94)

To further enable the Commission and the customs authorities to effectively monitor the compliance of the companies with the undertakings, when the request for release for free circulation is presented to the relevant customs authority, exemption from the anti-dumping duty is to be conditional on (i) the presentation of an undertaking invoice, which is a commercial invoice containing at least the elements listed and the declaration stipulated in the Annex; (ii) the fact that imported goods are manufactured, shipped and invoiced directly by the said companies to the first independent customer in the Community; and (iii) the fact that the goods declared and presented to customs correspond precisely to the description on the undertaking invoice. Where the above conditions are not met the appropriate anti-dumping duty shall be incurred at the time of acceptance of the declaration for release into free circulation.

(95)

Whenever the Commission withdraws, pursuant to Article 8(9) of the basic Regulation, its acceptance of an undertaking following a breach by referring to particular transactions and declares the relevant undertaking invoices as invalid, a customs debt shall be incurred at the time of acceptance of the declaration for release into free circulation of these transactions.

(96)

Importers should be aware that a customs debt may be incurred, as a normal trade risk, at the time of acceptance of the declaration for release into free circulation as described in recitals 94 and 95 even if an undertaking offered by the manufacturer from whom they were buying, directly or indirectly, had been accepted by the Commission.

(97)

Pursuant to Article 14(7) of the basic Regulation, customs authorities should inform the Commission immediately whenever indications of a violation of the undertaking are found.

(98)

For the reasons stated above, the undertakings offered by the exporting producers are therefore considered acceptable by the Commission and the companies concerned have been informed of the essential facts, considerations and obligations upon which acceptance is based.

(99)

In the event of a breach or withdrawal of the undertakings, or in case of withdrawal of acceptance of the undertakings by the Commission, the anti-dumping duty which has been imposed by the Council in accordance with Article 9(4) of the basic Regulation shall automatically apply in accordance with Article 8(9) thereof.

(100)

In view of the magnitude of the dumping margin found and given the level of the injury caused to the Community industry, it is considered necessary that the amounts secured by way of provisional anti-dumping duty imposed by the provisional Regulation should be definitively collected to the extent of the amount of definitive duties imposed. As the definitive duty rates are lower than the provisional duty rates, amounts provisionally secured in excess of the definitive rate of anti-dumping duty should be released,

(a)

they are manufactured, shipped and invoiced directly by the said companies to the first independent customer in the Community; and

(b)

such imports are accompanied by an undertaking invoice which is a commercial invoice containing at least the elements and the declaration stipulated in the Annex of this Regulation; and

(c)

the goods declared and presented to customs correspond precisely to the description on the undertaking invoice.

(a)

whenever it is established, in respect of imports described in paragraph 1, that one or more of the conditions listed in that paragraph are not fulfilled; or

(b)

when the Commission withdraws its acceptance of the undertaking pursuant to Article 8(9) of Regulation (EC) No 384/96 in a Regulation or Decision which refers to particular transactions and declares the relevant undertaking invoices as invalid.

3.12.2008   

EN

Official Journal of the European Union

L 323/16

3.12.2008   

EN

Official Journal of the European Union

L 323/18

(1)

By virtue of the first subparagraph of Article 9(1), and in accordance with Article 17(2) of Regulation (EC) No 510/2006, the Commission has examined the United Kingdom’s application for the approval of amendments to the specification for the protected geographical indication ‘Scottish Farmed Salmon’ registered under Commission Regulation (EC) No 2400/96 (2), as amended by Regulation (EC) No 1437/2004 (3).

(2)

Since the amendments in question are not minor within the meaning of Article 9 of Regulation (EC) No 510/2006, the Commission published the amendment application in the Official Journal of the European Union  (4) as required by the first subparagraph of Article 6(2) of that Regulation. As no statement of objection within the meaning of Article 7 of Regulation (EC) No 510/2006 has been sent to the Commission, the amendments should be approved,

3.12.2008   

EN

Official Journal of the European Union

L 323/20

(1)

Article 4(1) of Regulation (EC) No 1670/2006 lays down that the quantities of cereals eligible for the refund are to be the quantities placed under control and distilled, weighted by a coefficient to be fixed annually for each Member State concerned. The coefficient is to express the average ratio between the total quantities exported and the total quantities marketed of the spirit drink concerned, on the basis of the trend noted in those quantities during the number of years corresponding to the average ageing period of the spirit drink in question.

(2)

According to the information provided by the United Kingdom in respect of the period 1 January to 31 December 2007, the average ageing period for Scotch whisky in 2007 was eight years.

(3)

The coefficients for the period 1 October 2008 to 30 September 2009 should therefore be fixed accordingly.

(4)

Article 10 of Protocol 3 to the Agreement on the European Economic Area excludes the grant of refunds in respect of exports to Liechtenstein, Iceland and Norway. Moreover, the Community has concluded agreements abolishing export refunds with certain third countries. Under the terms of Article 7(2) of Regulation (EC) No 1670/2006, this should be taken into account in calculating the coefficients for 2008/09,

3.12.2008   

EN

Official Journal of the European Union

L 323/22

(1)

Council Regulation (EC) No 40/2008 of 16 January 2008 fixing for 2008 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks applicable in Community waters and for Community vessels, in waters where catch limitations are required (3), lays down quotas for 2008.

(2)

According to the information received by the Commission, catches of the stock referred to in the Annex to this Regulation by vessels flying the flag of or registered in the Member State referred to therein have exhausted the quota allocated for 2008.

(3)

It is therefore necessary to prohibit fishing for that stock and its retention on board, transhipment and landing,

3.12.2008   

EN

Official Journal of the European Union

L 323/24

(1)

Council Regulation (EC) No 40/2008 of 16 January 2008 fixing for 2008 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks applicable in Community waters and for Community vessels, in waters where catch limitations are required (3), lays down quotas for 2008.

(2)

According to the information received by the Commission, catches of the stock referred to in the Annex to this Regulation by vessels flying the flag of or registered in the Member State referred to therein have exhausted the quota allocated for 2008.

(3)

It is therefore necessary to prohibit fishing for that stock and its retention on board, transhipment and landing,

3.12.2008   

EN

Official Journal of the European Union

L 323/26

(1)

Commission Regulation (EC) No 341/2007 (3) opens and provides for the administration of tariff quotas and introduces a system of import licences and certificates of origin for garlic and other agricultural products imported from third countries.

(2)

The quantities for which ‘A’ licence applications have been lodged by traditional importers and by new importers during the first five working days following the 15th day of November 2008, pursuant to Article 10(1) of Regulation (EC) No 341/2007 exceed the quantities available for products originating in China, Argentina, and all third countries other than China and Argentina.

(3)

Therefore, in accordance with Article 7(2) of Regulation (EC) No 1301/2006, it is now necessary to establish the extent to which the ‘A’ licence applications sent to the Commission by the end of November 2008 can be met in accordance with Article 12 of Regulation (EC) No 341/2007,

3.12.2008   

EN

Official Journal of the European Union

L 323/28

(1)

The import duties in the cereals sector applicable from 1 December 2008 were fixed by Commission Regulation (EC) No 1186/2008 (3).

(2)

As the average of the import duties calculated differs by more than EUR 5/tonne from that fixed, a corresponding adjustment must be made to the import duties fixed by Regulation (EC) No 1186/2008.

(3)

Regulation (EC) No 1186/2008 should therefore be amended accordingly,

3.12.2008   

EN

Official Journal of the European Union

L 323/31

(1)

Council Directive 79/409/EEC (3) provides that certain measures are to be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (4).

(2)

Decision 1999/468/EC has been amended by Council Decision 2006/512/EC (5), which was introduced the regulatory procedure with scrutiny for the adoption of measures of general scope and was designed to amend non-essential elements of a basic instrument adopted in accordance with the procedure referred to in Article 251 of the Treaty, inter alia, by deleting some of those elements or by supplementing the instrument with new non-essential elements.

(3)

In accordance with the statement by the European Parliament, the Council and the Commission (6) concerning Decision 2006/512/EC, for the regulatory procedure with scrutiny to be applicable to instruments adopted in accordance with the procedure laid down in Article 251 of the Treaty which are already in force, those instruments must be adjusted in accordance with the applicable procedures.

(4)

The Commission should be empowered in particular to amend certain annexes to Directive 79/409/EEC in the light of scientific and technical progress. Since those measures are of general scope and are designed to amend non-essential elements of Directive 79/409/EEC, inter alia, by supplementing it with new non-essential elements, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC.

(5)

Directive 79/409/EEC should therefore be amended accordingly.

(6)

Since the amendments made to Directive 79/409/EEC by this Directive are technical in nature and concern committee procedure only, they do not need to be transposed by the Member States. It is therefore not necessary to lay down provisions to that effect,

1.

Article 15 shall be replaced by the following:

‘Article 15

Such amendments as are necessary for adapting Annexes I and V to technical and scientific progress and the amendments referred to in the second subparagraph of Article 6(4) shall be adopted. Those measures, designed to amend non-essential elements of this Directive, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 17(2).’;

2.

Article 17 shall be replaced by the following:

‘Article 17

1.   The Commission shall be assisted by the Committee for Adaptation to Technical and Scientific Progress.

2.   Where reference is made to this paragraph, Article 5a(1) to (4) and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.’.

3.12.2008   

EN

Official Journal of the European Union

L 323/33

(1)

Directive 2001/25/EC of the European Parliament and of the Council of 4 April 2001 on the minimum level of training of seafarers (3) has been significantly amended on several occasions (4). Now that new amendments are being made to that Directive, it is desirable, for reasons of clarity, that the provisions in question should be recast.

(2)

Actions to be taken at Community level in the field of maritime safety and pollution prevention at sea should be in line with internationally agreed rules and standards.

(3)

In order to maintain and develop the level of knowledge and skills in the maritime sector in the Community, it is important to pay appropriate attention to maritime training and the status of seafarers in the Community.

(4)

A consistent level of training for the award of vocational competency certificates to seafarers should be ensured in the interests of maritime safety.

(5)

Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (5) applies to maritime occupations covered by this Directive. It will help promote compliance with the obligations laid down in the Treaty abolishing obstacles to the free movement of persons and services between Member States.

(6)

The mutual recognition of diplomas and certificates provided for under Directive 2005/36/EC does not always ensure a standardised level of training for all seafarers serving on board vessels flying the flag of a Member State. This is, however, vital from the viewpoint of maritime safety.

(7)

It is therefore essential to define a minimum level of training for seafarers in the Community. That level should be based on the standards of training already agreed at international level, namely the International Maritime Organisation (IMO) Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW Convention), as revised in 1995. All Member States are Parties to that Convention.

(8)

Member States may establish standards higher than the minimum standards laid down in the STCW Convention and this Directive.

(9)

The Regulations of the STCW Convention annexed to this Directive should be supplemented by the mandatory provisions contained in Part A of the Seafarers’ Training, Certification and Watchkeeping Code (STCW Code). Part B of the STCW Code contains recommended guidance intended to assist Parties to the STCW Convention and those involved in implementing, applying or enforcing its measures to give the Convention full and complete effect in a uniform manner.

(10)

For the enhancement of maritime safety and pollution prevention at sea, provisions on minimum rest periods for watchkeeping personnel should be established in this Directive in accordance with the STCW Convention. Those provisions should be applied without prejudice to the provisions of Council Directive 1999/63/EC of 21 June 1999 concerning the Agreement on the organisation of working time of seafarers concluded by the European Community Shipowners’ Association (ECSA) and the Federation of Transport Workers’ Unions in the European Union (FST) (6).

(11)

Member States should take and enforce specific measures to prevent and penalise fraudulent practices associated with certificates of competency as well as pursue their efforts within the IMO to achieve strict and enforceable agreements on the worldwide combating of such practices.

(12)

In order to enhance maritime safety and prevent loss of human life and maritime pollution, communication among crew members on board ships sailing in Community waters should be improved.

(13)

Personnel on board passenger ships nominated to assist passengers in emergency situations should be able to communicate with the passengers.

(14)

Crews serving on board tankers carrying noxious or polluting cargo should be capable of coping effectively with accident prevention and emergency situations. It is paramount that a proper communication link between the master, officers and ratings is established, covering the requirements provided for in this Directive.

(15)

It is essential to ensure that seafarers holding certificates issued by third countries and serving on board Community ships have a level of competence equivalent to that required by the STCW Convention. This Directive should lay down procedures and common criteria for the recognition by the Member States of certificates issued by third countries, based on the training and certification requirements as agreed in the framework of the STCW Convention.

(16)

In the interests of safety at sea, Member States should recognise qualifications proving the required level of training only where these are issued by or on behalf of Parties to the STCW Convention which have been identified by the IMO Maritime Safety Committee (MSC) as having been shown to have given, and still to be giving, full effect to the standards set out in that Convention. To bridge the time gap until the MSC has been able to carry out such identification, a procedure for the preliminary recognition of certificates is needed.

(17)

Where appropriate, maritime institutes, training programmes and courses should be inspected. Criteria for such inspection should therefore be established.

(18)

The Commission should be assisted by a committee in carrying out the tasks related to the recognition of certificates issued by training institutes or administrations of third countries.

(19)

The European Maritime Safety Agency established by Regulation (EC) No 1406/2002 of the European Parliament and of the Council (7) should assist the Commission in verifying that Member States comply with the requirements laid down in this Directive.

(20)

Member States, as port authorities, are required to enhance safety and prevention of pollution in Community waters through priority inspection of vessels flying the flag of a third country which has not ratified the STCW Convention, thereby ensuring no more favourable treatment to vessels flying the flag of a third country.

(21)

It is appropriate to include in this Directive provisions on port State control, pending the amendment of Council Directive 95/21/EC (8) on port State control of shipping in order to transfer to that Directive the provisions on port State control which are included in this Directive.

(22)

It is necessary to provide for procedures for adapting this Directive to changes in international conventions and codes.

(23)

The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (9).

(24)

In particular the Commission should be empowered to amend this Directive in order to apply, for the purposes of this Directive, subsequent amendments to certain international codes and any relevant amendment to Community legislation. Since those measures are of general scope and are designed to amend non-essential elements of this Directive, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC.

(25)

The new elements introduced into this Directive only concern the committee procedures. They therefore do not need to be transposed by the Member States.

(26)

This Directive should be without prejudice to the obligations of the Members States relating to the time limits for transposition into national law of the Directives set out in Annex III, Part B,

1.

‘master’ means the person having command of a ship;

2.

‘officer’ means a member of the crew, other than the master, designated as such by national law or regulations or, in the absence of such designation, by collective agreement or custom;

3.

‘deck officer’ means an officer qualified in accordance with the provisions of Chapter II of Annex I;

4.

‘chief mate’ means the officer next in rank to the master upon whom the command of the ship will fall in the event of the incapacity of the master;

5.

‘engineer officer’ means an officer qualified in accordance with the provisions of Chapter III of Annex I;

6.

‘chief engineer officer’ means the senior engineer officer responsible for the mechanical propulsion and the operation and maintenance of the mechanical and electrical installations of the ship;

7.

‘second engineer officer’ means the engineer officer next in rank to the chief engineer officer upon whom the responsibility for the mechanical propulsion and the operation and maintenance of the mechanical and electrical installations of the ship will fall in the event of the incapacity of the chief engineer officer;

8.

‘assistant engineer officer’ means a person under training to become an engineer officer and designated as such by national law or regulations;

9.

‘radio operator’ means a person holding an appropriate certificate issued or recognised by the competent authorities under the provisions of the Radio Regulations;

10.

‘rating’ means a member of the ship’s crew other than the master or an officer;

11.

‘seagoing ship’ means a ship other than those which navigate exclusively in inland waters or in waters within, or closely adjacent to, sheltered waters or areas where port regulations apply;

12.

‘ship flying the flag of a Member State’ means a ship registered in and flying the flag of a Member State in accordance with its legislation; a ship not corresponding to this definition shall be regarded as a ship flying the flag of a third country;

13.

‘near-coastal voyages’ means voyages in the vicinity of a Member State as defined by that Member State;

14.

‘propulsion power’ means the total maximum continuous rated output power in kilowatts of all of a ship’s main propulsion machinery which appears on the ship’s certificate of registry or other official document;

15.

‘oil-tanker’ means a ship constructed and used for the carriage of petroleum and petroleum products in bulk;

16.

‘chemical tanker’ means a ship constructed or adapted and used for the carriage in bulk of any liquid product listed in Chapter 17 of the International Bulk Chemical Code, in its up-to-date version;

17.

‘liquefied-gas tanker’ means a ship constructed or adapted and used for the carriage in bulk of any liquefied gas or other product listed in Chapter 19 of the International Gas Carrier Code, in its up-to-date version;

18.

‘Radio Regulations’ means the revised radio regulations, adopted by the World Administrative Radio Conference for the Mobile Service in their up-to-date version;

19.

‘passenger ship’ means a seagoing ship which carries more than 12 passengers;

20.

‘fishing vessel’ shall mean a vessel used for catching fish or other living resources of the sea;

21.

‘STCW Convention’ means the International Maritime Organisation (IMO) Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978, as it applies to the matters concerned taking into account the transitional provisions of Article VII and Regulation I/15 of the Convention and including, where appropriate, the applicable provisions of the STCW Code, all being applied in their up-to-date versions;

22.

‘radio duties’ includes, as appropriate, watchkeeping and technical maintenance and repairs conducted in accordance with the Radio Regulations, the International Convention for the Safety of Life at Sea, 1974 (SOLAS 74) and, at the discretion of each Member State, the relevant recommendations of the IMO, in their up-to-date versions;

23.

‘ro-ro passenger ship’ means a passenger ship with ro-ro cargo spaces or special-category spaces as defined in the SOLAS 74, in its up-to-date version;

24.

‘STCW Code’ means the Seafarers’ Training, Certification and Watchkeeping (STCW) Code as adopted by Resolution 2 of the 1995 STCW Conference of Parties, in its up-to-date version;

25.

‘function’ means a group of tasks, duties and responsibilities, as specified in the STCW Code, necessary for ship operation, safety of life at sea or protection of the marine environment;

26.

‘company’ means the owner of the ship or any other organisation or person such as the manager or the bareboat charterer who has assumed the responsibility for operation of the ship from the shipowner and who, on assuming such responsibility, has agreed to take over all the duties and responsibilities imposed on the company by this Directive;

27.

‘appropriate certificate’ means a certificate issued and endorsed in accordance with this Directive and entitling the lawful holder thereof to serve in the capacity and perform the functions involved at the level of responsibility specified therein on a ship of the type, tonnage, power and means of propulsion concerned while engaged on the particular voyage concerned;

28.

‘seagoing service’ means service on board a ship relevant to the issue of a certificate or other qualification;

29.

‘approved’ means approved by a Member State in accordance with this Directive;

30.

‘third country’ means any country which is not a Member State;

31.

‘month’ means a calendar month or 30 days made up of periods of less than one month.

(a)

warships, naval auxiliaries or other ships owned or operated by a Member State and engaged only on government non-commercial service;

(b)

fishing vessels;

(c)

pleasure yachts not engaged in trade;

(d)

wooden ships of primitive build.

(a)

include the additional knowledge required by the relevant regulations in the examination for the issue of a certificate complying with the Radio Regulations; or

(b)

issue a separate certificate indicating that the holder has the additional knowledge required by the relevant regulations.

(a)

may be issued as separate documents;

(b)

shall each be assigned a unique number, other than endorsements attesting the issue of a certificate which may be assigned the same number as the certificate concerned, provided that that number is unique; and

(c)

shall each expire as soon as the certificate endorsed expires or is withdrawn, suspended or cancelled by the Member State or third country which issued them and, in any case, within five years of their date of issue.

(a)

a company or a master has engaged a person not holding a certificate as required by this Directive;

(b)

a master has allowed any function or service in any capacity which under this Directive must be performed by a person holding an appropriate certificate to be performed by a person not holding the required certificate, a valid dispensation or having the documentary proof required by Article 19(7); or

(c)

a person has obtained by fraud or forged documents an engagement to perform any function or serve in any capacity which under this Directive must be performed or fulfilled by a person holding a certificate or dispensation.

(a)

all training, assessment of competence, certification, endorsement and revalidation activities carried out by non-governmental agencies or entities under its authority are continuously monitored through a quality standards system to ensure the achievement of defined objectives, including those concerning the qualifications and experience of instructors and assessors;

(b)

where governmental agencies or entities perform such activities, there is a quality-standards system;

(c)

the education and training objectives and related quality standards of competence to be achieved are clearly defined and identify the levels of knowledge, understanding and skills appropriate to the examinations and assessments required under the STCW Convention;

(d)

the fields of application of the quality standards cover the administration of the certification systems, all training courses and programmes, examinations and assessments carried out by or under the authority of each Member State and the qualifications and experience required of instructors and assessors, having regard to the policies, systems, controls and internal quality-assurance reviews established to ensure achievement of the defined objectives.

(a)

all internal management control and monitoring measures and follow-up actions comply with planned arrangements and documental procedures and are effective in ensuring that the defined objectives are achieved;

(b)

the results of each independent evaluation are documented and brought to the attention of those responsible for the area evaluated;

(c)

timely action is taken to correct deficiencies.

(a)

of his or her identity;

(b)

that his or her age is not less than that prescribed in the Regulations in Annex I relevant to the certificate applied for;

(c)

that he or she meets the standards of medical fitness, particularly regarding eyesight and hearing, established by the Member State and holds a valid document attesting to his or her medical fitness, issued by a duly qualified medical practitioner recognised by the competent authority of the Member State;

(d)

of having completed the seagoing service and any related compulsory training prescribed in the Regulations in Annex I for the certificate applied for;

(e)

that he or she meets the standards of competence prescribed in the Regulations in Annex I for the capacities, functions and levels that are to be identified in the endorsement to the certificate.

(a)

to maintain a register or registers of all certificates and endorsements for masters and officers and, as appropriate, ratings, which are issued, have expired or have been revalidated, suspended, cancelled or reported lost or destroyed and of dispensations issued;

(b)

to make available information on the status of such certificates, endorsements and dispensations to other Member States or other Parties to the STCW Convention and companies which request verification of the authenticity and validity of certificates produced to them by seafarers seeking recognition of their certificates or employment on board ship.

(a)

to meet the standards of medical fitness prescribed by Article 11; and

(b)

to establish continued professional competence in accordance with section A-I/11 of the STCW Code.

(a)

all mandatory simulator-based training;

(b)

any assessment of competence required by Part A of the STCW Code which is carried out by means of a simulator;

(c)

any demonstration, by means of a simulator, of continued proficiency required by Part A of the STCW Code.

(a)

each seafarer assigned to any of its ships holds an appropriate certificate in accordance with the provisions of this Directive and as established by the Member State;

(b)

its ships are manned in accordance with the applicable safe-manning requirements of the Member State;

(c)

documentation and data relevant to all seafarers employed on its ships are maintained and readily accessible, and include, without being limited to, documentation and data on their experience, training, medical fitness and competence in assigned duties;

(d)

on being assigned to any of its ships seafarers are familiarised with their specific duties and with all ship arrangements, installations, equipment, procedures, and ship characteristics that are relevant to their routine or emergency duties;

(e)

the ship’s complement can effectively coordinate their activities in an emergency situation and in performing functions vital to safety or to the prevention or mitigation of pollution.

(a)

the allocation of a reasonable period of time during which each newly employed seafarer will have an opportunity to become acquainted with:

(b)

the designation of a knowledgeable crew member who will be responsible for ensuring that each newly employed seafarer is given an opportunity to receive essential information in a language the seafarer understands.

(a)

give the training referred to in Article 3;

(b)

organise and/or supervise the examinations where required;

(c)

issue the certificates of competence referred to in Article 11;

(d)

grant the dispensations provided for in Article 16.

(a)

all training and assessment of seafarers is:

(b)

persons conducting in-service training or assessment on board ship do so only when such training or assessment will not adversely affect the normal operation of the ship and they can dedicate their time and attention to training or assessment;

(c)

instructors, supervisors and assessors are appropriately qualified for the particular types and levels of training or assessment of competence of seafarers either on board or ashore;

(d)

any person conducting in-service training of a seafarer, either on board or ashore, which is intended to be used in qualifying for certification under this Directive:

(e)

any person responsible for the supervision of the in-service training of a seafarer intended to be used in qualifying for certification has a full understanding of the training programme and the specific objectives for each type of training being conducted;

(f)

any person conducting in-service assessment of the competence of a seafarer, either on board or ashore, which is intended to be used in qualifying for certification under this Directive:

(g)

when a Member State recognises a course of training, a training institution, or a qualification granted by a training institution, as part of its requirements for the issue of a certificate, the qualifications and experience of instructors and assessors are covered in the application of the quality standard provisions of Article 10; such qualification, experience and application of quality standards shall incorporate appropriate training in instructional techniques and training and assessment methods and practice and comply with all applicable requirements of points (d), (e) and (f).

(a)

without prejudice to points (b) and (d), there are at all times, on board all ships flying the flag of a Member State, means in place for effective oral communication relating to safety between all members of the ship’s crew, particularly with regard to the correct and timely reception and understanding of messages and instructions;

(b)

on board all passenger ships flying the flag of a Member State and on board all passenger ships starting and/or finishing a voyage in a Member State port, in order to ensure effective crew performance in safety matters, a working language is established and recorded in the ship’s log-book;

the company or the master, as appropriate, shall determine the appropriate working language; each seafarer shall be required to understand and, where appropriate, give orders and instructions and report back in that language;

if the working language is not an official language of the Member State, all plans and lists that must be posted shall include translations into the working language;

(c)

on board passenger ships, personnel nominated on muster lists to assist passengers in emergency situations are readily identifiable and have communication skills that are sufficient for that purpose, taking into account an appropriate and adequate combination of any of the following factors:

(d)

on board oil tankers, chemical tankers and liquefied gas tankers flying the flag of a Member State, the master, officers and rating are able to communicate with each other in (a) common working language(s);

(e)

there are adequate means for communication between the ship and the shore-based authorities; these communications shall be conducted in accordance with Chapter V, Regulation 14, paragraph 4, of the SOLAS 74;

(f)

when carrying out port State control under Directive 95/21/EC, Member States also check that ships flying the flag of a State other than a Member State comply with this Article.

(a)

verification that every seafarer serving on board who must be certificated in accordance with the STCW Convention holds an appropriate certificate or a valid dispensation or provides documentary proof that an application for an endorsement attesting recognition has been submitted to the authorities of the flag State;

(b)

verification that the numbers and certificates of the seafarers serving on board are in accordance with the safe-manning requirements of the authorities of the flag State.

(a)

the ship has been involved in a collision, grounding or stranding;

(b)

there has been a discharge of substances from the ship when under way, at anchor or at berth which is illegal under an international convention;

(c)

the ship has been manoeuvred in an erratic or unsafe manner whereby routing measures adopted by the IMO, or safe navigation practices and procedures have not been followed;

(d)

the ship is otherwise being operated in such a manner as to pose a danger to persons, property or the environment;

(e)

a certificate has been fraudulently obtained or the holder of a certificate is not the person to whom that certificate was originally issued;

(f)

the ship is flying the flag of a country which has not ratified the STCW Convention, or has a master, officer or rating holding a certificate issued by a third country which has not ratified the STCW Convention.

(a)

failure of seafarers to hold certificates, to have appropriate certificates, to have valid dispensations or provide documentary proof that an application for an endorsement attesting recognition has been submitted to the authorities of the flag State;

(b)

failure to comply with the applicable safe-manning requirements of the flag State;

(c)

failure of navigational or engineering-watch arrangements to conform to the requirements specified for the ship by the flag State;

(d)

absence in a watch of a person qualified to operate equipment essential to safe navigation, safety radio communications or the prevention of marine pollution;

(e)

failure to provide proof of professional proficiency for the duties assigned to seafarers for the safety of the ship and the prevention of pollution;

(f)

inability to provide for the first watch at the commencement of a voyage and for subsequent relieving watches persons who are sufficiently rested and otherwise fit for duty.

(a)

‘200 gross registered tonnes’ may be replaced by ‘500 gross tonnage’;

(b)

‘1 600 gross registered tonnes’ may be replaced by ‘3 000 gross tonnage’.

3.12.2008   

EN

Official Journal of the European Union

L 323/62

(1)

By Regulation (EC) No 488/2008 (2), the Commission imposed provisional anti-dumping duties on imports into the Community of citric acid originating in the People's Republic of China (PRC).

(2)

Following the adoption of the provisional anti-dumping measures, the Commission continued the investigation of dumping, injury and Community interest. The definitive findings and conclusions of the investigation are set out in Council Regulation (EC) No 1193/2008 (3) imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of citric acid originating in the PRC.

(3)

The investigation confirmed the provisional findings of injurious dumping relating to imports of citric acid originating in the PRC.

(4)

Subsequent to the adoption of provisional anti-dumping measures, six cooperating exporting producers in the PRC, namely Anhui BBCA Biochemical, RZBC, TTCA, Yixing Union Biochemical, Laiwu Taihe Biochemistry and Weifang Ensign Industry offered price undertakings in accordance with Article 8(1) of the basic Regulation. In these undertakings, the exporting producers have offered to sell the product concerned at or above price levels which eliminate the injurious effects of dumping. Each exporting producer offered one minimum import price for all different product types in order to limit the risk of circumvention.

(5)

In addition, the offers provide for the indexation of the minimum prices given that the prices of the product concerned varied significantly, in particular prices increased considerably after the investigation period. The indexation is made in accordance with public international quotations of corn, the main raw material used by the exporting producers. However, the exporting producers offered to fix the minimum prices at least at the level of the non-injurious price even if the indexation would lead to a lower price level.

(6)

Laiwu Taihe Biochemistry, which was accorded market economy treatment, offered to calculate its minimum price based on the normal value established during the investigation.

(7)

Moreover, the exporting producers, in order to reduce the risk of price violations by means of cross-compensation of prices, firstly offered to report all non-EU sales to those customers whose organisation or structure extends beyond the EU, should the exporting producer sell to this customer in the EU. Secondly, the exporting producers agreed to respect a certain price regime in relation to those non-EU sales.

(8)

The exporting producers will also provide the Commission with regular and detailed information concerning their exports to the Community, meaning that the undertakings can be monitored effectively by the Commission.

(9)

It is also noted that the China Chamber of Commerce of Metals, Minerals & Chemicals Importers & Exporters (‘CCCMC’) is joining the six companies mentioned in recital (4), and that therefore the CCCMC will also play an active role in the monitoring of the undertakings. Thus, the Commission considers the risk of circumventing the agreed undertakings as limited.

(10)

Subsequent to the disclosure of the undertaking offers, the Community industry objected to these undertaking offers. The Community industry argued that an indexation based on corn is not appropriate as other main inputs constitute major variant components of the costs and suggested instead an indexation based on both raw material and energy costs. As concerns the Community industry's comments suggesting an indexation based also on energy, it is noted that energy is not a major cost driver. Moreover, there would be no clear source of indexation as the energy required can be produced from different sources such as coal, natural gas or electricity.

(11)

The Community industry further argued that, because the exporting producers sell the product covered by the undertaking to multinational companies, there is a high risk of price cross-compensation i.e. the product covered by the undertaking may be sold to the same customer at artificially low prices outside the EC in order to compensate the minimum prices in the EC. In this regard it should be noted that the majority of the companies' export sales to the EC are made to traders and not to multinational companies. Notwithstanding this, and to further reduce the remaining risk of cross-compensation by some specific companies, the offers contain special cross-compensation clauses in respect of sales by the companies concerned to those EC customers whose organisation or structure extends beyond the EU. These clauses significantly reduce the risk of cross-compensation.

(12)

In view of this, the undertakings offered by the exporting producers are acceptable.

(13)

In order to enable the Commission to monitor effectively the companies' compliance with the undertakings, when the request for release for free circulation is presented to the relevant customs authority, exemption from the anti-dumping duty will be conditional on (i) the presentation of an undertaking invoice containing at least the elements listed in the Annex to Regulation (EC) No 1193/2008; (ii) the fact that imported goods are manufactured, shipped and invoiced directly by the said company to the first independent customer in the Community; and (iii) the fact that the goods declared and presented to customs correspond precisely to the description on the undertaking invoice. Where no such invoice is presented, or when it does not correspond to the product presented to customs, the appropriate rate of anti-dumping duty shall instead be payable.

(14)

To further ensure the respect of the undertakings, importers have been made aware by the above-mentioned Council Regulation that the non-fulfillment of the conditions provided for by that Regulation, or the withdrawal by the Commission of the acceptance of the undertakings, may lead to the customs debt being incurred for the relevant transactions.

(15)

In the event of a breach or withdrawal of the undertaking or in case of withdrawal of acceptance of the undertaking by the Commission, the anti-dumping duty imposed in accordance with Article 9(4) of the basic Regulation shall automatically apply by means of Article 8(9) of the basic Regulation,

3.12.2008   

EN

Official Journal of the European Union

L 323/65

(1)

On 12 February 2008, the Council adopted Joint Action 2008/107/CFSP (1).

(2)

The mandate of the European Union Special Representative should be amended to take account of his role in monitoring implementation of the European Union Strategy for a New Partnership with Central Asia, adopted by the European Council in June 2007,

‘(i)

provide input to the formulation of energy security, anti-narcotics and water resource management aspects of the CFSP with respect to Central Asia.’

3.12.2008   

EN

Official Journal of the European Union

L 323/66

(1)

On 1 September 2008, the European Council stated that the European Union is ready to commit itself to support every effort to secure a peaceful and lasting solution to the conflicts in Georgia, and that it is ready to support confidence-building measures.

(2)

On 15 September 2008, the Council supported the idea of an independent international inquiry into the conflict in Georgia.

(3)

Ms Heidi TAGLIAVINI should be appointed as head of this fact-finding mission,

3.12.2008   

EN

Official Journal of the European Union

L 323/s3