Judgment_paragraph 4 · Commission of the European Communities v Fresh Marine Company A/S (C-472/00 P)

4The factual background to the dispute is set out at paragraphs 1 to 21 of the contested judgment as follows:1 [Fresh Marine] is a company established in 1992 and incorporated under Norwegian law, which specialises in the sale of farmed Atlantic salmon.2 Following complaints lodged injury 1996 by the Scottish Salmon Growers' Association Ltd and the Shetland Salmon Farmers' Association on behalf of their members, the Commission announced on 31 August 1996, by two separate notices published in the Official Journal of the European Communities, the initiation of an antidumping and an anti-subsidy proceeding concerning imports of farmed Atlantic salmon originating in Norway (OJ 1996 C 53, pp. 18 and 20).3 The Commission... found that it was necessary to impose definitive antidumping and countervailing measures...4 On 17 June 1997, [Fresh Marine], having been informed of the Commission's findings, offered an undertaking pursuant to Article 8 of [Regulation No 384/96] and Article 10 of Council Regulation (EC) No 3284/94 of 22 December 1994 on protection against subsidised imports from countries not members of the European Community (OJ 1994 L 349, p. 22)5 By Decision 97/634/EC of 26 September 1997 accepting undertakings offered in connection with the antidumping and anti-subsidy proceedings concerning imports of farmed Atlantic salmon originating in Norway (OJ 1997 L 267, p. 81), the Commission accepted the undertakings offered by a number of Norwegian exporters of farmed Atlantic salmon, including that of [Fresh Marine] [Fresh Marine]'s undertaking entered into force on 1 July 1997.6 On the same day, the Council adopted Regulation (EC) No 1890/97 of 26 September 1997 imposing a definitive antidumping duty on imports of farmed Atlantic salmon originating in Norway (OJ 1997 L 267, p. 1) and Council Regulation (EC) No 1891/97 of 26 September 1997 imposing a definitive countervailing duty on imports of farmed Atlantic salmon originating in Norway (OJ 1997 L 267, p. 19). Pursuant to Article 1(2) of each of those two regulations, imports into the Community of farmed Atlantic salmon originating in Norway produced by [Fresh Marine] were exempt from those duties on account of the acceptance of its undertaking by the Commission.7 On 22 October 1997, [Fresh Marine] sent the Commission a report on all its exports of farmed Atlantic salmon to the Community during the third quarter of 1997 (“the October 1997 report”).8 On 16 December 1997, the Commission adopted, on the basis of Council Regulation No 384/96 and [Regulation No 2026/97], Regulation (EC) No 2529/97 of 16 December 1997 imposing provisional antidumping and countervailing duties on certain imports of farmed Atlantic salmon originating in Norway (OJ 1997 L 346, p. 63). That regulation imposed a provisional antidumping duty... and a provisional countervailing duty... on imports, into the Community, of farmed Atlantic salmon originating in Norway produced by [Fresh Marine]... The regulation entered into force on 18 December 19979 By letter of 19 December 1997, the Commission informed [Fresh Marine] of the... facts... It stated that examination of the data disclosed in the October 1997 report had shown that [Fresh Marine] had exported farmed Atlantic salmon, gutted head-on, at an average price... lower than the minimum average price set in its undertaking of 17 June 1997, which led it to believe that it had not observed that undertaking10 By fax of 22 December 1997, [Fresh Marine] complained that the Commission had manipulated the October 1997 report by deleting a number of lines which were intended to cancel lines containing errors. Pointing out that it had ceased all exports to the Community since the entry into force of Regulation No 2529/97, and as a result was suffering considerable harm, it asked for the immediate lifting of the sanctions taken against it.11 In its letter of 5 January 1998, the Commission explained to [Fresh Marine] the reasons why it had decided to delete a number of lines from the October 1997 report containing quantities and values preceded by a minus sign, which, in the absence of explanations in the report, could not be offset against the corresponding invoices. It added that, if [Fresh Marine] sent it in good time a proper report showing that all sales transactions, net of credit notes, during the third quarter of 1997 were, on average, above the minimum price, the Commission would be prepared to reconsider its position. It again emphasised the provisional nature of the duties imposed by Regulation No 2529/97 and pointed out to [Fresh Marine] that it could have chosen to continue to export to the Community by providing the relevant customs authorities of the Member States concerned with an appropriate guarantee in regard to its “DDP” (“delivered duty paid”) sales.12 On 6 January 1998, [Fresh Marine] sent to the Commission an amended version of the October 1997 report....19 By letter of 30 January 1998, the Commission informed [Fresh Marine] that it now took the view that [Fresh Marine] had, during the third quarter of 1997, complied with the minimum export price fixed in its undertaking in respect of salmon, gutted head-on, and that, accordingly, there was no longer any reason to believe that the undertaking had been broken.20 By letter of 2 February 1998 the Commission informed [Fresh Marine] that itintended to propose to the Council that it should not impose definitive duties and that, accordingly, the provisional duties imposed by Regulation No 2529/97 ought not to be confirmed. It added that, under Article 10(2) of Regulation No 384/96, the amounts lodged as provisional duties were to be released in so far as there was no decision by the Council to collect all or part of them definitively.21 On 23 March 1998, the Commission adopted Regulation (EC) No 651/98 amending Regulations Nos 1890/97, 1891/97 and 2529/97 and Decision 97/634 (OJ 1998 L 88, p. 31). Under Regulation No 651/98, the provisional antidumping and countervailing duties imposed by Regulation No 2529/97 were repealed so far as concerned imports of [Fresh Marine]'s products... Its undertaking was moreover reinstated with effect from 25 March 1998...’