19.12.2009   

EN

Official Journal of the European Union

L 338/1

(1)

Regulation (EC) No 73/2009 (1) establishes the mechanism of financial discipline whereby the level of direct support is adjusted when the forecasts indicate that the subceiling for market related expenditure and direct payments, under heading 2 of Annex I to the Interinstitutional Agreement between the European Parliament, the Council and the Commission on budgetary discipline and sound financial management (2), with a safety margin of EUR 300 000 000, is exceeded in a given financial year.

(2)

The abovementioned subceiling covers expenditure for direct payments before all transfers to rural development and before modulation. The text of Regulation (EC) No 73/2009 should therefore be clarified so as to provide that the expenditure to be compared with the subceiling also includes possible transfers to the European Agricultural Fund for Rural Development (EAFRD) referred to in Article 136 of Regulation (EC) No 73/2009, as well as possible transfers to EAFRD in the wine sector resulting from the application of Article 190a(2) of Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (3).

(3)

Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers (4) authorised the Commission to adopt, inter alia, a provision to deal with the situation where the allocation of payment entitlements to a farmer would lead to a windfall profit for the farmer. Such a situation can also occur under Regulation (EC) No 73/2009 and should therefore be addressed.

(4)

Under Regulation (EC) No 1782/2003 some Member States opted for the implementation of the single payment scheme and for the partial implementation of the single payment scheme in the sheepmeat and goatmeat sector as well as in the beef and veal sector at regional level. Regional considerations may also be relevant for the decisions to be taken under Regulation (EC) No 73/2009 to continue or to adjust the partial implementation of the single payment scheme in those sectors. It should therefore be made possible for those decisions to be taken at regional level.

(5)

Regulation (EC) No 73/2009 provides for the allocation of payment entitlements where a farmer in a sector concerned does not hold any payment entitlement. However, this provision does not adequately deal with the situation where that farmer nevertheless declares a number of leased payment entitlements in the first year of integration of the coupled support into the single payment scheme. In that case the farmer would not be able or only partly be able to activate the new payment entitlements allocated since all or some of the farmer’s eligible hectares would already have been used to activate the leased entitlements. It is therefore appropriate to provide a temporary derogation according to which the farmer concerned should be allocated payment entitlements for the hectares declared which correspond to those hectares over and above the hectares declared to activate the leased payment entitlements and/or the payment entitlements which give right to a payment without any declaration of the corresponding hectares. This derogation should be limited to the situation where a farmer is to remain in agricultural activity.

(6)

Pursuant to Regulation (EC) No 73/2009, Member States wishing to grant, from 2010, specific support measures as referred to in that Regulation had to take a decision by 1 August 2009 on the use of their national ceiling for financing those measures. Following the Communication from the Commission to the Council of 22 July 2009 entitled ‘Dairy market situation 2009’, and in view of the current dairy market situation, a derogation from that deadline is necessary in order to allow Member States under certain conditions to grant, from 2010, specific support in favour of farmers in the dairy sector.

(7)

Regulation (EC) No 73/2009 provides for a derogation from the upper limit of support laid down in that Regulation in certain cases where Article 69 of Regulation (EC) No 1782/2003 was used to provide support with regard to suckler cows. The purpose of this derogation is to provide for a sufficient transitional period in order to allow for a smooth transition to the new rules for specific support in the beef and veal sector. It should therefore be clarified that this derogation is limited to cases where Article 69 of Regulation (EC) No 1782/2003 was used mainly to support the beef and veal sector.

(8)

Regulation (EC) No 73/2009 repeals Regulation (EC) No 1782/2003 as from the date of its entry into force and applies from 1 January 2009. However, Regulation (EC) No 73/2009 provides for the continued application of Regulation (EC) No 1782/2003 in specific cases including that of the partial implementation of the single payment scheme in the sheepmeat and goatmeat sector. In order to ensure a coherent approach for this sector, the corresponding provision in Regulation (EC) No 73/2009 should apply instead in 2009. It is therefore appropriate to establish a transitional provision as regards the additional sheep and goat payments for 2009.

(9)

Regulation (EC) No 73/2009 should therefore be amended accordingly,

1.

Article 11(1) is replaced by the following:

‘1.   With a view to ensuring that the amounts for the financing of the market related expenditure and direct payments of the CAP currently under heading 2 of Annex I to the Interinstitutional Agreement between the European Parliament, the Council and the Commission on budgetary discipline and sound financial management (5) respect the annual ceilings set out in the Decision 2002/929/EC of the Representatives of the Governments of the Member States, meeting within the Council of 18 November 2002, concerning the Conclusions of the European Council meeting in Brussels on 24 and 25 October 2002 (6), an adjustment of the direct payments shall be determined when the forecasts for the financing of the aforementioned measures under heading 2 for a given financial year, increased by the amounts given in Article 190a of Regulation (EC) No 1234/2007, the amounts given in Articles 134 and 135 and the amounts referred to in Article 136 of this Regulation and before application of modulation provided for in Articles 7 and 10 of this Regulation and Article 1(1) of Regulation (EC) No 378/2007, indicate that the applicable abovementioned annual ceiling, taking into account a margin of EUR 300 000 000 below that ceiling, will be exceeded.

2.

the following paragraph is added to Article 41:

‘6.   Where a Member State applies Articles 59 or 63, it may, on the basis of objective criteria and in such a way as to ensure equal treatment between farmers and to avoid market and competition distortions, provide that, in cases of sale or grant or expiry of all or part of a lease of a holding or of premium rights, some or all of the payment entitlements or of the increase in the value of payment entitlements that would be allocated to the farmer in question shall revert to the national reserve where the allocation or increase would lead to a windfall profit for the farmer in question. The criteria shall include at least:

3.

Article 51 is amended as follows:

4.

the following subparagraphs are added to Article 64(2):

‘By way of derogation from the third subparagraph, where a farmer of the sector concerned does not hold any payment entitlement but declares a number of leased payment entitlements in the first year of integration of the coupled support, he shall be allocated a number of payment entitlements corresponding to the difference between the number of eligible hectares he declares and the number of leased payment entitlements he declares. The value of the entitlements allocated shall be established by dividing the amount resulting from the application of paragraph 1 by the number of entitlements to be allocated. However, the value of each entitlement allocated shall not exceed EUR 5 000.

In order to ensure the full allocation of the amount resulting from the application of paragraph 1 after application of the fourth subparagraph of this paragraph, the farmer of the sector concerned shall be allocated payment entitlements of a maximum value per entitlement of EUR 5 000. By way of derogation from Article 35, these payment entitlements shall give right to an annual support under the single payment scheme without declaration of the corresponding hectares. However, the number of payment entitlements activated by use of this derogation shall in a given year not exceed the number of payment entitlements activated by the farmer in accordance with Article 35. This derogation shall cease to apply from the first year where, and to the extent to which, the farmer of the sector concerned declares sufficient eligible hectares for activation of the payment entitlements or part thereof in accordance with Article 35. Those payment entitlements shall be activated on the available eligible hectares before any payment entitlements are transferred to the farmer, after the allocation of payment entitlement in accordance with the first sentence of this subparagraph.

In the case of transfer of the payment entitlements resulting from the fifth subparagraph of this paragraph, other than by actual or anticipated inheritance or as a consequence to change in legal status, Article 35 shall apply where the transferee activates those payment entitlements.’;

5.

in Article 67, the current text becomes paragraph 1 and the following paragraph is added:

‘2.   Member States having made use only in some parts of their territory of the option provided for in Section 1 of Chapter 5 of Title III of Regulation (EC) No 1782/2003 to apply the single payment scheme at regional level may apply this Article at the same regional level.

Any Member State applying the possibility provided for in the first subparagraph shall submit the following information to the Commission, by 1 December 2009:

Member States shall reply to any request from the Commission for further clarifications on the information submitted within one month.

The Commission shall use the amounts referred to in point (a) of the second subparagraph of this paragraph as a basis for adjusting the national ceilings referred to in Article 40 for the Member States concerned as provided for in this Article.’;

6.

Article 69 is amended as follows:

7.

the following subparagraph is added to Article 131(1):

‘The deadline of 1 August 2009 referred to in the first subparagraph shall be replaced by 1 January 2010 in the case of the new Member States applying the single area payment scheme which decide to grant, from 2010, the support provided for in Article 68(1)(b) in favour of farmers in the dairy sector, provided that the support is financed in accordance with paragraph 3(a) of this Article.’;

8.

in Chapter 2 of Title VII, the following Article is inserted:

‘Article 146a

Sheep and goat payments in 2009

In 2009, Member States having granted payments in the sheepmeat and goatmeat sector in accordance with Section 2 of Chapter 5 of Title III of Regulation (EC) No 1782/2003 may retain up to 50 % of the component of national ceilings referred to in Article 41 of this Regulation corresponding to the sheep and goat payments listed in Annex VI of Regulation (EC) No 1782/2003.

In this case and within the limit of the ceiling fixed in accordance with Article 64(2) of Regulation (EC) No 1782/2003, the Member States concerned shall make, in 2009, an additional payment to farmers.

The additional payment shall be granted to farmers rearing sheep and goats under the conditions provided for in Chapter 11 of Title IV of Regulation (EC) No 1782/2003.’;

9.

the second subparagraph of Article 146(1) is replaced by the following:

‘However, Article 20(2), Article 64(2), Articles 66, 68, 68a, 68b and 69, Article 70(1)(b) and (2) and Chapters 1 (durum wheat), 5 (energy crops), 7 (dairy premium), 10 (arable crops area payment), 10b (aid for olive groves), 10c (tobacco production aid) and 10d (hops area payment) of Title IV of that Regulation shall continue to apply for 2009.’.

19.12.2009   

EN

Official Journal of the European Union

L 338/5

(1)

By Regulation (EC) No 1995/2000 (2), the Council imposed a definitive anti-dumping duty on imports of solutions of urea and ammonium nitrate (‘UAN’) originating, inter alia, in Russia. That Regulation will hereinafter be referred to as ‘the original Regulation’ and the investigation that led to the measures imposed by the original Regulation will be hereinafter referred to as ‘the original investigation’.

(2)

Following an expiry review initiated in September 2005 (‘the expiry review’), the Council, by Regulation (EC) No 1911/2006 (3), renewed for five years these measures at their current level. The measures consist of specific duties.

(3)

A request for a new exporter review (‘the present review’) pursuant to Article 11(4) of the basic Regulation was lodged by Joint Stock Company Acron (‘the applicant’), an exporting producer in Russia. The request was limited in scope to dumping as far as the applicant is concerned.

(4)

The applicant alleged that it did not export UAN to the Union during the period of investigation on which the anti-dumping measures were based, that is, the period from 1 June 1998 to 31 May 1999 (‘the original investigation period’) and that it is not related to any of the exporting producers of UAN which are subject to the abovementioned anti-dumping measures. The applicant further alleged that it began exporting UAN to the Union after the end of the original investigation period.

(5)

The Commission examined the prima facie evidence submitted by the applicant and considered it sufficient to justify the initiation of a review pursuant to Article 11(4) of the basic Regulation. After consulting the Advisory Committee and after the Union industry concerned had been given the opportunity to comment, the Commission initiated by Regulation (EC) No 241/2009 (4), a review of Regulation (EC) No 1911/2006 (‘measures in force’) with regard to the applicant.

(6)

Pursuant to Article 2 of Regulation (EC) No 241/2009, the anti-dumping duty of 20,11 EUR/tonne imposed by Regulation (EC) No 1911/2006 on imports of UAN produced and sold for export to the Union by the applicant was repealed. Simultaneously, pursuant to Article 14(5) of the basic Regulation, customs authorities were directed to take appropriate steps to register these imports.

(7)

The product concerned by the current review is the same as in the original investigation, i.e. a solution of urea and ammonium nitrate, a liquid fertiliser commonly used in agriculture, originating in Russia (‘the product concerned’). It consists of a mixture of urea, ammonium nitrate and water. The product concerned is currently falling within CN code 3102 80 00.

(8)

The Commission officially informed the applicant, the representatives of the exporting country and the association of Union producers about the initiation of the review. Interested parties were given the opportunity to make their views known in writing and to request a hearing within the time limit set in the notice of initiation. All interested parties, who so requested and showed that there were particular reasons why they should be heard, were granted a hearing.

(9)

The Commission sent questionnaires to the applicant and its related companies and received replies within the deadlines set for that purpose. The Commission sought and verified all information deemed necessary for the determination of dumping. The Commission carried out verification visits at the premises of the applicant and its related company:

(10)

The ‘new exporter’ review investigation period covered the period from 1 January 2008 to 31 December 2008 (‘RIP’).

(11)

The investigation confirmed that the applicant had not exported the product concerned during the original investigation period and that it had begun exporting to the Union after this period.

(12)

Furthermore, the applicant was able to demonstrate that it was not related to any of the exporters or producers in Russia which are subject to the anti-dumping measures in force on imports of the product concerned originating in Russia.

(13)

In this context, it is confirmed that the applicant should be considered a ‘new exporter’ in accordance with Article 11(4) of the basic Regulation.

(14)

The applicant had no domestic sales in Russia of the product concerned. Whenever domestic prices cannot be used in order to establish normal value, another method has to be applied. In accordance with Article 2(3) of the basic Regulation, the Commission instead calculated a constructed normal value, as follows:

(15)

Normal value was constructed on the basis of the manufacturing costs incurred by the applicant plus a reasonable amount for selling, general and administrative costs (‘SG&A costs’) and for profits, in accordance with Article 2(3) and (6) of the basic Regulation.

(16)

Regarding the cost of manufacturing, it should be noted that gas costs represent a major proportion of the manufacturing cost and a significant proportion of the total cost of production. In accordance with Article 2(5) of the basic Regulation, it was examined whether the costs associated with the production and sales of the product concerned were reasonably reflected in the records of the applicant.

(17)

It was established that the domestic gas prices paid by the applicant were abnormally low. By way of illustration, they amounted to between one fourth and one fifth of the export price of natural gas from Russia. In this regard, all available data indicates that domestic gas prices in Russia were regulated prices, which are far below market prices paid in unregulated markets for natural gas. Since gas costs were not reasonably reflected in the applicant’s records, they had to be adjusted accordingly. In the absence of any undistorted gas prices relating to the Russian domestic market, and in accordance with Article 2(5) of the basic Regulation, gas prices had to be established on ‘any other reasonable basis, including information from other representative markets’.

(18)

The adjusted price was based on the average price of Russian gas when sold for export at the German/Czech border (Waidhaus), net of transport costs and adjusted to reflect local distribution cost. Waidhaus, being the main hub for Russian gas sales to the Union, which is both the largest market for Russian gas and has prices reasonably reflecting costs, can be considered a representative market within the meaning of Article 2(5) of the basic Regulation.

(19)

Following disclosure, the applicant submitted several claims linked to the (i) legal basis of the gas adjustment made on the one hand and (ii) to the methodologies applied for the gas adjustment on the other hand.

(20)

The applicant claimed that any adjustment of the gas price paid on the Russian domestic market would be unwarranted because its accounting records fully reflected the costs associated with the production of the product concerned in Russia. The applicant further argued that in accordance with Article 1 of the basic Regulation, normal value must always be established with regard to the exporting country and that consequently it was contrary to that article to base findings on information from producers in other third countries.

(21)

As to the applicant’s argument about the alleged breach of Article 1 of the basic Regulation it should be noted that Article 1 only describes the general concept of dumping but the detailed rules on establishing dumping are set out in Article 2 of the basic Regulation. Article 2(5) of the basic Regulation provides for the possibility to use data from other representative markets including a third country if costs associated with the production and sale of the product under investigation are not reasonably reflected in the records of the party concerned. The applicant’s argument in this respect had therefore to be rejected.

(22)

The applicant also invoked the existence of natural competitive advantages in Russia such as the large availability of natural gas and favourable conditions of supply which would explain the price difference between the natural gas sold domestically and the one exported. The applicant also alleged that Russian domestic gas prices would be cost covering.

(23)

With regard to the existence of natural advantages the applicant did not address the fact that domestic prices for natural gas were regulated in Russia and could not therefore be considered to reasonably reflect a price normally payable in undistorted markets. The applicant did also not submit any evidence in support of these claims. Furthermore, as regards costs, even if gas prices paid by the applicant covered the unit cost of production and sales of gas incurred by its provider, this argument is irrelevant since the market price of gas is not necessarily linked to the costs of its production and sales. These claims had therefore to be rejected.

(24)

The applicant claimed further that an investigation under the basic Regulation should not cover the case of subsidisation of upstream products. It is noted that Article 2(5) of the basic Regulation aims to determine whether costs associated with the production and sale of the like product are reasonably reflected in the records of the party concerned. This was found not to be the case for the reasons set out above in recital (17). This is different from the determination of the existence of subsidies which was not subject to the present investigation. The applicant’s argument therefore had to be rejected.

(25)

In this context, the applicant also argued that even if particular market situations exist within the meaning of Article 2(3) of the basic Regulation, these would only refer to the market of the product concerned, i.e. UAN as such which cannot be extended to the market conditions of the upstream product. However, as it results from recital (24) above, the adjustment for natural gas prices was done on the basis of Article 2(5) of the basic Regulation which, as mentioned above in recital (21) explicitly entitles the Institutions to use the cost of production coming from other representative markets. The applicant’s argument therefore had to be rejected.

(26)

The applicant finally argued that Article 2(5) of the basic Regulation is limited to the examination of the compliance of the company’s records with the generally accepted accounting principles of the third country concerned and does not require that costs are in line with costs in unregulated markets.

(27)

It should be noted that in accordance with Article 2(5) of the basic Regulation two requirements need to be met in order for the costs to be calculated on the basis of the records kept by the exporter: (i) records must be kept in accordance with the generally accepted accounting principles (‘GAAP’) of the country concerned; and (ii) records must reasonably reflect the costs associated with the production and sale of the product concerned. If, as in the present case, the second requirement is not met because the costs are not reflected in the records, the costs must be adjusted. The applicant’s argument therefore had to be rejected.

(28)

The applicant claimed that during the RIP of the current investigation gas prices fluctuated significantly and that normal value should be established on a monthly (or at least quarterly) basis rather than on a yearly basis.

(29)

It should be noted that although gas prices fluctuated during the RIP, these fluctuations were not considered exceptional or particularly significant. Indeed, the market for natural gas is generally characterised by rather important price fluctuations. The applicant could not show that there were any specific circumstances and that the price fluctuations during the RIP were significantly beyond usual fluctuations. Therefore there was no reason to deviate from the methodology used in the investigation leading to the measures in force. Secondly, information on which basis – according to the applicant – normal values should have been established was only partly available, since the necessary information from the US companies, i.e. SG&A and profit, was only available on a yearly basis. Therefore, even if one would follow the applicant’s argument, no meaningful calculation of monthly or quarterly values would have been possible. The applicant’s argument therefore had to be rejected.

(30)

The applicant also claimed that Waidhaus is not an appropriate reference market given the allegedly non-competitive pricing on gas in Germany and relationships between parties which factor is linked to the price formulae in the gas export contracts from Russia.

(31)

It should be noted that the alleged non-competitive domestic gas pricing in Germany was in any event considered irrelevant because it would only concern the prices at which German gas distributors sell the gas on the domestic market, and therefore, this is not linked at all to the price at which Russian exported gas is sold at Waidhaus. The applicant’s argument that the German incumbents do not have an incentive to negotiate low prices for Russian imported gas at Waidhaus is a mere presumption without any factual background and evidence. Consequently, these arguments were rejected.

(32)

The applicant argued further that if the export price at Waidhaus was to be used, the Russian export duty payable for all exports should have been deducted from the Waidhaus price because it was not incurred domestically.

(33)

Indeed, the market price at Waidhaus, which was considered as representative market within the meaning of Article 2(5) of the basic Regulation, is the price after export taxes and not the prices before these taxes. From the perspective of the buyer it is the price it has to pay at Waidhaus which is relevant, and in this regard it is irrelevant what percentage of that price constitutes an export tax and what percentage is paid to the gas supplier. The latter, on the other hand will always try to maximise its price and therefore charge the highest price its customers are willing to pay. Given that this price is always well above its costs of production, allowing the gas supplier to make high profits, the market price is not primarily influenced by the amount of the export tax but by the price the market is willing to pay. It was therefore concluded that the price including the export tax, and not the price before that tax, is the undistorted market driven price. Consequently, the arguments of the applicant in this regard were rejected.

(34)

In this context, the applicant also claimed that the mark-up of the local distributor should not be added to the export price at Waidhaus, without however explaining or demonstrating why it considered that the adjustment for the local distributor would have been inappropriate. It was considered that since domestic customers were purchasing the gas from local suppliers, it had to be assumed that they would have to pay local distribution costs which are not as such included in the unadjusted Waidhaus price. Therefore it was considered that this adjustment was indeed warranted and consequently the applicant’s claim was rejected.

(35)

SG&A costs and profit could not be established on the basis of the ‘chapeau’ of Article 2(6), first sentence, of the basic Regulation because the applicant had no domestic sales in Russia of the like product. Article 2(6)(a) of the basic Regulation could not be applied, since only the applicant is subject to the investigation. Article 2(6)(b) was not applicable either, since for products belonging to the same general category of goods, natural gas is likewise by far the most important raw material and therefore manufacturing costs would very likely also need to be adjusted, for the reasons indicated in recital (17) above. In the framework of this review, no information was available to properly quantify such adjustment and to establish SG&A costs and the relevant profit margins when selling these products after such adjustment. Therefore, SG&A costs and profit were established pursuant to Article 2(6)(c) of the basic Regulation on the basis of a reasonable method.

(36)

As the Russian domestic market of products of the same general category is extremely small, information had to be obtained from other representative markets. In this respect, consideration was given to publicly available information relating to major companies operating in the nitrogen fertilisers business sector. It was found that the corresponding data from North American (namely US) producers would be the most appropriate for the purpose of the investigation, given the large availability of reliable and complete public financial information from listed companies in this region of the world. Moreover, the North American market showed a significant volume of domestic sales and a considerable level of competition from both domestic and foreign companies. Therefore, SG&A costs and profit were established on the basis of the weighted average of SG&A costs and profit from three North American producers, which were found to be amongst the largest companies in the fertilisers sector, with regard to their North American sales of the same general category of products (nitrogen fertilisers). These three producers were considered to be representative of the nitrogen fertilisers business and their SG&A costs and profit as representative of the same type of costs normally incurred by companies operating successfully in that business segment. Furthermore, there is no indication suggesting that the amount for profit so established exceeds the profit normally realised by Russian producers on sales of products of the same general category on their domestic market.

(37)

Following disclosure the applicant contested the above described methodology claiming that the profit margin used is unreasonable and excessively high, especially in comparison to the profit margin used in previous anti-dumping investigations concerning the same product. The applicant claimed that the year 2008 on which basis SG&A and profits were established was exceptional in the US market as gas prices were fluctuating considerably and fertiliser prices were exceptionally high which yielded exceptionally high profit rates for US producers.

(38)

In general, the present review confirmed that there were no changed circumstances, in the sense of Article 11(9) of the basic Regulation, that would justify a deviation from the methodology used in the investigation leading to the measures in force. First of all, it was found that profit margins achieved by the same US producers before 2008 were similar to profit margins realised in 2008. Secondly, even if profit levels in 2008 differed from those in prior years, this is normal in a market economy where costs, prices and profits move over time. Thirdly, the market for natural gas is generally characterised as volatile. A comparison of the gas price levels on US markets and at Waidhaus in 2008 and previous years did not show any diverging trend that would have given grounds for abnormally high profits on the US market. In light of the above, it is considered that there were no grounds to deviate from the methodology described above in recital (36).

(39)

Furthermore, the applicant alleged that the test of Article 2(6)(c) on the reasonableness of the profit margin used was not applied since the profit margin exceeds the profit normally realised by other exporters or producers on products of the same general category in the domestic market of the country of origin within the meaning of Article 2(6)(c) of the basic Regulation.

(40)

The applicant did not submit any evidence in support of this claim. Since the present review was limited to the determination of dumping with regard to the applicant, no information was available concerning other producers in Russia. While noting that gas costs incurred by the applicant have had to be rejected for the reasons outlined above, the applicant’s own reported profitability rate at company level for products sold on the domestic market, after corrections for extraordinary gains and losses from financial activities, is in the same order of magnitude as the profitability rate of the US producers. In these circumstances, there are no grounds to consider that the profit margin used would exceed the profit normally realised by other exporters or producers on products of the same general category in the domestic market of the country of origin within the meaning of Article 2(6)(c) of the basic Regulation.

(41)

The Union industry objected to the above approach with regard to the determination of SG&A and profits and claimed the applicant’s own SG&A should have been used. However, Article 2(6) of the basic Regulation sets out that the amounts for SG&A and profits shall only be based on actual data pertaining to the production and sale of the exporting producer concerned, when these sales were made in the ordinary course of trade. As outlined above in recitals (35) and (36), this was not the case because the applicant had no domestic sales in Russia of the like product. Therefore this argument had to be rejected.

(42)

The export price was established in accordance with Article 2(8) of the basic Regulation, i.e. on the basis of the price actually paid or payable for the product when sold for export from the exporting country to the Union.

(43)

The normal value and export price were compared on an ex-works basis. For the purpose of ensuring a fair comparison between the normal value and the export price, due allowance in the form of adjustments was made for differences affecting price and price comparability in accordance with Article 2(10) of the basic Regulation. Accordingly, adjustments were made for differences in transport, handling, loading and ancillary costs and indirect taxes where applicable and supported by verified evidence.

(44)

Export sales of the applicant during the RIP were made via Agronova, the related trader located in the USA. The investigation has shown that the functions of the related company are solely restricted to finding customers and negotiating sales contracts. The verification revealed that Agronova’s accounts did not fully reflect the totality of its operations and there were indications that although no transaction-linked commissions were paid to the company, compensation for its activities was given in other forms. For these reasons Agronova’s functions were considered to be similar to those of an agent working on a commission basis. The export price was therefore adjusted by a notional commission corresponding to a trader’s usual mark-up in accordance with Article 2(10)(i) of the basic Regulation.

(45)

The applicant claimed that the export price should not have been adjusted by a notional commission in accordance with Article 2(10)(i) of the basic Regulation for sales made via its related company in the USA since this company allegedly performed functions identical to those of a fully integrated export sales department and should therefore not be treated as an agent working on commission basis.

(46)

This could not be confirmed by the present investigation which revealed that concerning the functions and the way the related company is compensated for its activities by the applicant, the related company should rather be considered as an agent working on commission basis.

(47)

The dumping margin was established on the basis of a comparison of a weighted average normal value with a weighted average export price, in accordance with Article 2(11) of the basic Regulation.

(48)

This comparison showed a dumping margin of 22,9 %, expressed as a percentage of the CIF frontier price, duty unpaid.

(49)

It is reminded that, in accordance with Article 9(4) of the basic Regulation and as outlined in recital (49) of Regulation (EC) No 1995/2000, the definitive duty in the original investigation was established at the level of the injury margin found, which was lower than the dumping margin because it was found that such lesser duty would be adequate to remove the injury to the Union industry. In the light of the foregoing, the duty established in this review should not be higher than the injury margin.

(50)

No individual injury margin can be established in this partial interim review, since it is limited to the examination of dumping as far as the applicant is concerned. Therefore, the dumping margin established in the present review was compared to the injury margin as established in the original investigation. Since the latter was lower than the dumping margin found in the present investigation, a definitive anti-dumping duty should be imposed for the applicant at the level of the injury margin found in the original investigation.

(51)

Regarding the form of the measure, it was considered that the amended anti-dumping duty should take the same form as the duties imposed by Regulation (EC) No 1995/2000. To ensure efficiency of the measures and to discourage price manipulation it was appropriate to impose duties in the form of a specific amount per tonne. As a result, the anti-dumping duty to be imposed on imports of the product concerned produced and sold for export to the Union by the applicant, calculated on the basis of the injury margin as established in the original investigation expressed as a specific amount per tonne, should be EUR 20,11 per tonne.

(52)

In the light of the above findings, the anti-dumping duty applicable to the applicant shall be levied retroactively from the date of initiation of the review on imports of the product concerned which have been made subject to registration pursuant to Article 3 of Regulation (EC) No 241/2009.

(53)

The applicant and other parties were informed of the essential facts and considerations on the basis of which it was intended to reimpose a definitive anti-dumping duty on imports of UAN originating, inter alia, in Russia and produced and sold for export to the Union by the applicant and to levy this duty retroactively on imports made subject to registration. All parties were given an opportunity to comment.

(54)

This review does not affect the date on which the measures imposed by Regulation (EC) No 1911/2006 will expire pursuant to Article 11(2) of the basic Regulation.

(55)

Following final disclosure the applicant offered an undertaking in accordance with Article 8 of the basic Regulation. The applicant stated that the offer would be based on the reasonable expectation that some of its claims made following the final disclosure would be accepted and would result in a minimum import price workable for the applicant. Since, however, none of the comments raised by the applicant were found to be warranted and since the applicant appears not interested to offer a minimum import price based on the injury elimination level established in the original investigation, any further detailed analysis of the undertaking offer as to its acceptance was considered unnecessary,

19.12.2009   

EN

Official Journal of the European Union

L 338/12

(1)

By Regulation (EC) No 1338/2006 (2), the Council, following an investigation (‘the original investigation’), imposed a definitive anti-dumping duty on imports of chamois leather originating in the People's Republic of China (‘PRC’). The measures in force consist of an ad valorem definitive country-wide duty rate of 58,9 %.

(2)

Subsequent to the imposition of the definitive anti-dumping measures, the Commission received a request for a new exporter review pursuant to Article 11(4) of the basic Regulation. The request was based on the claim that the exporting producer, Henan Prosper Skins and Leather Enterprise Co. Ltd. (‘the applicant’):

(3)

The Commission examined the prima facie evidence submitted by the applicant and considered it sufficient to justify the initiation of a review pursuant to Article 11(4) of the basic Regulation. After consultation of the Advisory Committee and after the Union industry concerned had been given the opportunity to comment, the Commission initiated, by Regulation (EC) No 573/2009 (3), a review of Regulation (EC) No 1338/2006 with regard to the applicant.

(4)

Pursuant to Article 2 of Regulation 573/2009, the anti-dumping duty imposed by Regulation (EC) No 1338/2006 on imports of chamois leather produced by the applicant was repealed. Simultaneously, pursuant to Article 14(5) of the basic Regulation, customs authorities were directed to take appropriate steps to register the imports of chamois leather produced by the applicant.

(5)

The product concerned by the current review is chamois leather as defined in the original investigation, i.e. chamois leather and combination chamois leather, whether or not cut to shape, including crust chamois and combination crust chamois leather (‘chamois leather’) originating in the People's Republic of China, currently falling within CN codes 4114 10 10 and 4114 10 90.

(6)

The Commission officially advised the Union industry, the applicant and the representatives of the exporting country of the initiation of the review. Interested parties were given the opportunity to make their views known in writing and to be heard.

(7)

The investigation of dumping covered the period from 1 July 2008 to 30 June 2009 (‘review investigation period’ or ‘RIP’).

(8)

The Commission sent a questionnaire to the applicant and received a reply within the deadlines set. During the verification of the applicant's questionnaire reply at their premises, the applicant provided false and misleading information within the meaning of Article 18(1) of the basic Regulation. Furthermore, the applicant decided to cease cooperation altogether and the verification had to be terminated without being completed. On 21 September 2009, the applicant formally withdrew its application for a new exporter review.

(9)

The applicant was informed that the information supplied by it could not be considered reliable and would be rejected and was invited to provide further explanations within a given deadline in accordance with Article 18(4) of the basic Regulation. The applicant did not supply any further explanation.

(10)

In the above circumstances, despite the withdrawal of the application, it was considered appropriate to continue the investigation ex officio and base findings with regard to the applicant on facts available within the meaning of Article 18 of the basic Regulation.

(11)

In the absence of other information, the duty rate to be applied to the applicant is set at the level of the country-wide duty.

(12)

In the light of the above findings, it was concluded that imports into the Union of chamois leather and combination chamois leather, whether or not cut to shape, including crust chamois leather and combination crust chamois leather, currently falling within CN codes 4114 10 10 and 4114 10 90, originating in the People's Republic of China, produced and sold for export to the Union by Henan Prosper Skins & Leather Enterprise Co. Ltd. (TARIC additional code A957) should be subject to an anti-dumping duty at the level of the antidumping duty imposed by Regulation (EC) No 1338/2006 on all companies in the People's Republic of China and that that rate of anti-dumping duty should be re-imposed and levied retroactively on imports of the product concerned, which have been made subject to registration pursuant to Article 3 of Regulation (EC) No 573/2009.

(13)

The applicant, the Union industry and the representatives of the exporting country were informed of the essential facts and considerations leading to the above conclusions and were given an opportunity to comment. No comments of a nature as to warrant a change of the above conclusions were received.

(14)

This review does not affect the date on which the measures imposed by Regulation (EC) No 1338/2006 will expire pursuant to Article 11(2) of the basic Regulation,

19.12.2009   

EN

Official Journal of the European Union

L 338/15

19.12.2009   

EN

Official Journal of the European Union

L 338/17

(1)

The criteria should be set to allow Member States to derogate from the common basic standards on civil aviation security and to adopt alternative security measures that provide an adequate level of protection on the basis of a (local) risk assessment. Such alternative measures should be justified by reasons relating to the size of the aircraft, or by reasons relating to the nature, scale or frequency of operations or of other relevant activities. Therefore, the criteria to be set should be also justified by these reasons.

(2)

In accordance with Article 24 of Regulation (EC) No 300/2008, the Annex to the said Regulation shall apply as from the date to be specified in the implementing rules, but not later than 24 months after the entry into force of Regulation (EC) No 300/2008. Therefore, the application of the criteria adopted pursuant to Article 4(4) of Regulation (EC) No 300/2008 should be deferred until the adoption of implementing rules pursuant to Article 4(3), but not later than 29 April 2010.

(3)

The measures provided for in this Regulation are in accordance with the opinion of the Committee on Civil Aviation Security,

1.

aircraft with a maximum take-off weight of less than 15 000 kilograms;

2.

helicopters;

3.

law enforcement flights;

4.

fire suppression flights;

5.

flights for medical services, emergency or rescue services;

6.

research and development flights;

7.

flights for aerial work;

8.

humanitarian aid flights;

9.

flights operated by air carriers, aircraft manufacturers or maintenance companies, transporting neither passengers and baggage, nor cargo and mail;

10.

flights with aircraft with a maximum take-off weight of less than 45 500 kilograms for the carriage of own staff and non fare-paying passengers or goods as an aid to the conduct of company business.

19.12.2009   

EN

Official Journal of the European Union

L 338/18

(1)

Protocol 2 to the bilateral Free Trade Agreement between the European Economic Community and the Kingdom of Norway (3), and Protocol 3 to the EEA Agreement (4), determine the trade arrangements for certain agricultural and processed agricultural products between the Contracting Parties.

(2)

Protocol 3 to the EEA Agreement, as amended by Decision of the EEA Joint Committee No 138/2004 (5), provides for a zero duty applying to certain waters containing added sugar or other sweetening matter or flavoured, classified under CN code 2202 10 00 and certain other non-alcoholic beverages containing sugar, classified under CN code ex 2202 90 10.

(3)

The zero duty for the waters and other beverages in question has been temporarily suspended for Norway by the Agreement in the form of an Exchange of Letters between the European Community and the Kingdom of Norway on Protocol 2 to the bilateral free trade Agreement between the European Economic Community and the Kingdom of Norway (6), hereinafter referred to as ‘the Agreement’, approved by Decision 2004/859/EC. According to point IV of the Agreed Minutes of the Agreement, duty free imports of goods of the CN codes 2202 10 00 and ex 2202 90 10 originating in Norway are to be permitted only within the limits of a duty free tariff quota, while a duty is to be paid for imports outside the tariff quota allocation.

(4)

Pursuant to Point IV, third indent, last sentence of the Agreed Minutes of the Agreement, the products in question should be granted unlimited duty free access to the Union if the tariff quota has not been exhausted by 31 October of the previous year. According to statistics provided to the Commission, the annual quota for 2009 for the products in question opened by Commission Regulation (EC) No 89/2009 (7) has not been exhausted on 31 October 2009. Therefore, the products in question should be granted unlimited duty free access to the Union from 1 January 2010 to 31 December 2010.

(5)

It is therefore necessary to withdraw the temporary suspension of the duty free regime applied under Protocol 2.

(6)

The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for horizontal questions concerning trade in processed products not listed in Annex I to the Treaty,

19.12.2009   

EN

Official Journal of the European Union

L 338/20

(1)

Commission Regulation (EC) No 1580/2007 of 21 December 2007 laying down implementing rules of Council Regulations (EC) No 2200/96, (EC) No 2201/96 and (EC) No 1182/2007 in the fruit and vegetable sector (2) provides for surveillance of imports of the products listed in Annex XVII thereto. That surveillance is to be carried out in accordance with the rules laid down in Article 308d of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (3).

(2)

For the purposes of Article 5(4) of the Agreement on Agriculture (4) concluded during the Uruguay Round of multilateral trade negotiations and in the light of the latest data available for 2006, 2007 and 2008, the trigger levels for additional duties on pears, lemons, apples and courgettes should be adjusted.

(3)

Regulation (EC) No 1580/2007 should therefore be amended accordingly.

(4)

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

19.12.2009   

EN

Official Journal of the European Union

L 338/22

(1)

The EU has been financing Member States actions in the field of fisheries control and enforcement since 1990 pursuant to the objectives of the Common Fisheries Policy set out in particular by Council Regulation (EC) No 2371/2002 (2).

(2)

Regulation (EC) No 861/2006 provides, amongst other actions, for EU financial measures for expenditure on fisheries control, inspection and surveillance for the period 2007 to 2013. Commission Regulation (EC) No 391/2007 (3) establishes detailed rules for the implementation of such measures.

(3)

In view of the principle of sound financial management, Member States must have clear indications on the rules to be followed in order to benefit from EU financial assistance when incurring on expenditure in the area of fisheries control and enforcement.

(4)

Rules applicable to the EU financial contribution to national control programmes should be simplified and clarified.

(5)

Claims for reimbursement have to be linked to the precise Commission decision approving the project for which a reimbursement is claimed.

(6)

Specific rules should be set for the eligibility of expenditure incurred in implementing projects co-financed under several successive Commission decisions.

(7)

Claims for reimbursement by project may be sent to the Commission before a project is completed. Therefore Member States are required to request reimbursement within a certain time following the date on which expenditure was incurred or it will be considered as ineligible.

(8)

Regulation (EC) No 391/2007 should therefore be amended accordingly,

(9)

The measures provided for in this Regulation are in accordance with the opinion of the Committee for Fisheries and Aquaculture,

1.

Article 7 is amended as follows:

2.

Article 11 is amended as follows:

3.

In Article 12, paragraph 2 is replaced by the following:

‘2.   Reimbursement shall be made in euro on the basis of the exchange rate published in the C series of the Official Journal of the European Union of the month on which the invoice is registered in the accounting system of the authorising department of the Commission.’

4.

Article 14 is amended as follows:

5.

In Annex VI (d) point (vii), is replaced by the following:

19.12.2009   

EN

Official Journal of the European Union

L 338/24

(1)

Regulation (EC) No 517/94 established quantitative restrictions on imports of certain textile products originating in certain third countries to be allocated on a first come, first served basis.

(2)

Under that Regulation it is possible, in certain circumstances, to use other allocation methods, to divide quotas into tranches, or to reserve a proportion of a specific quantitative limit exclusively for applications which are supported by evidence of the results of past import performance.

(3)

Rules for management of the quotas established for 2010 should be adopted before the quota year begins so that the continuity of trade flows is not affected unduly.

(4)

The measures adopted in previous years, such as those in Commission Regulation (EC) No 1164/2008 of 24 November 2008 laying down rules for the management and distribution of textile quotas established for the year 2009 under Council Regulation (EC) No 517/94 (2), proved to be satisfactory and it is therefore appropriate to adopt similar rules for 2010.

(5)

In order to satisfy the greatest possible number of operators it is appropriate to make the ‘first come, first served’ allocation method more flexible by placing a ceiling on the quantities which can be allocated to each operator by that method.

(6)

To guarantee a degree of continuity in trade and efficient quota administration, operators should be allowed to make their initial import authorisation application for 2010 equivalent to the quantity which they imported in 2009.

(7)

To achieve optimum use of the quantities, an operator who has used up at least one half of the amount already authorised should be permitted to apply for a further amount, provided that quantities are available in the quotas.

(8)

For the sake of sound administration, import authorisations should be valid for nine months from the date of issue but only until the end of the year at the latest. Member States should issue licences only after being notified by the Commission that quantities are available and only if an operator can prove the existence of a contract and can certify, in the absence of a specific provision to the contrary, that he has not already been allocated a Community import authorisation under this Regulation for the categories and countries concerned. The competent national authorities should, however, be authorised, in response to importers’ applications, to extend by three months and up to 31 March 2011 licences of which at least one half has been used by the application date.

(9)

The measures provided for in this Regulation are in accordance with the opinion of the Textile Committee established by Article 25 of Regulation (EC) No 517/94,

(a)

proves the existence of a contract relating to the provision of the goods; and

(b)

certifies in writing that, in respect of the categories and countries concerned:

19.12.2009   

EN

Official Journal of the European Union

L 338/32

(1)

The common rules for imports of certain textile products from third countries should be updated to take account of a number of recent developments.

(2)

The bilateral agreement between the European Community and the Republic of Belarus on trade in textile products in force until 31 December 2009 will not be renewed.

(3)

Amendments to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (2) also affect certain codes in Annex I to Regulation (EEC) No 3030/93.

(4)

Regulation (EEC) No 3030/93 should therefore be amended accordingly.

(5)

The measures provided for in this Regulation are in accordance with the opinion of the Textile Committee set up by Article 17 of Regulation (EEC) No 3030/93,