Commission Implementing Regulation (EU) 2020/1408 of 6 October 2020 imposing a definitive anti-dumping duty and definitively collecting the provisional duty imposed on imports of certain hot rolled stainless steel sheets and coils originating in Indonesia, the People’s Republic of China and Taiwan

7.10.2020	EN	Official Journal of the European Union	L 325/26

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union ¹ (‘the basic Regulation’) and in particular Article 9(4) thereof,

Whereas:

1. PROCEDURE

1.1.   Initiation

• (1) On 12 August 2019, the European Commission (‘the Commission’) initiated an anti-dumping investigation with regard to imports into the Union of certain hot rolled stainless steel sheets and coils (‘SSHR’ or ‘the product under investigation’) originating in Indonesia, the People’s Republic of China (‘PRC’ or ‘China’) and Taiwan (‘the countries concerned’), on the basis of Article 5 of Regulation (EU) 2016/1036 of the European Parliament and of the Council (‘the basic Regulation’). It published a Notice of initiation in the Official Journal of the European Union ² (‘Notice of initiation’).

• (2) The Commission initiated the investigation following a complaint lodged on 28 June 2019 by the European Steel Association (‘Eurofer’ or ‘the complainant’) on behalf of four Union producers representing the entirety of Union production of the product under investigation. The complaint contained evidence of dumping from the countries concerned and resulting material injury that was sufficient to justify the initiation of the investigation.

1.2.   Registration

• (3) The Commission made imports of the product under investigation originating in and consigned from the countries concerned subject to registration by Commission Implementing Regulation (EU) 2020/104 ³. The registration of imports ceased with the entry into force of the provisional measures referred to in recital (5) below.

1.3.   Provisional measures

• (4) In accordance with Article 19a of the basic Regulation, on 18 March 2020 the Commission provided parties with a summary of the proposed duties and details about the calculation of the dumping margins and the margins adequate to remove the injury to the Union industry. Interested parties were invited to comment on the accuracy of the calculations within three working days. In view of the comments received, corrections were made to the calculations of one Taiwanese exporting producer. The comments submitted by the Indonesian and Chinese exporting producers did not alter the calculations.

• (5) On 8 April 2020, the Commission imposed a provisional anti-dumping duty on imports into the Union of SSHR originating in Indonesia, the PRC and Taiwan by Commission Implementing Regulation (EU) 2020/508 ⁴ (‘the provisional Regulation’).

• (6) As stated in recital (27) of the provisional Regulation, the investigation of dumping and injury covered the period from 1 July 2018 to 30 June 2019 (‘the investigation period’ or ‘IP’) and the examination of trends relevant for the assessment of injury covered the period from 1 January 2016 to the end of the investigation period (‘the period considered’).

1.4.   Subsequent procedure

• (7) Following the disclosure of the essential facts and considerations on the basis of which a provisional anti-dumping duty was imposed (‘provisional disclosure’), the complainant, one user of the product concerned, one importers’ association, two Indonesian, three Chinese and two Taiwanese exporting producers, as well as the Governments of China (‘GOC’) and Indonesia (‘GOI’) filed written submissions making their views known on the provisional findings within the deadline provided by Article 2(1) of the provisional Regulation.

• (8) The parties who so requested were granted an opportunity to be heard. Hearings took place with the complainant on 5 May 2020 and with the exporting producer Walsin Lihwa Co. (‘Walsin’) on 22 April 2020. On 19 May 2020, the Commission sent to one Union producer an additional disclosure regarding its individual target price calculation. Comments further to that additional disclosure were received on 25 May 2020.

• (9) The Commission informed all interested parties of the essential facts and considerations on the basis of which it intended to impose a definitive anti-dumping duty on imports into the Union of SSHR originating in Indonesia, the PRC and Taiwan (‘final disclosure’). All parties were granted a period within which they could make comments on the final disclosure.

• (10) Comments were received from the GOC and GOI, two Indonesian, two Chinese and one Taiwanese exporting producers, from the complainant and from one user. The complainant was afforded two hearings, one with the Commission services and one on 12 August 2020 in the presence of the Hearing Officer. Further to that hearing, the complainant was provided with additional final disclosure on an element of the analysis concerning the effect on supply chains for European companies under the Union interest test under Article 7(2b) of the basic Regulation (see section 6.2.3.3 below). In addition, in view of the comments received an additional final disclosure on the undercutting and underselling calculations was provided to the Chinese exporting producers Fujian Fuxin Special Steel Co., Ltd (‘FSS’) and Shanxi Taigang Stainless Steel Co., Ltd (‘STSS’). Furthermore, an additional final disclosure with a revised dumping margin calculation was sent to FSS as the Commission accepted the company’s claim mentioned in recital (143) below.

1.5.   Sampling

• (11) In the absence of comments concerning sampling, recitals (9) to (19) of the provisional Regulation were confirmed.

1.6.   Investigation period and period considered

• (12) In the absence of comments concerning the investigation period and period considered, recital (26) of the provisional Regulation was confirmed.

1.7.   Completeness of provisional and final disclosure

• (13) The Chinese exporting producer FSS requested the disclosure of the percentage of selling, general and administrative costs used in establishing the target price of the Union industry. Furthermore, FSS as well as the exporting producer STSS requested to disclose the Union producers’ sales volumes, unit sales prices and non-injurious prices and undercutting and underselling amounts per model, claiming that this was common practice in trade defence investigations. Those claims were rejected, as most product types are produced by one or two of the sampled producers. Therefore to disclose the sales volumes or prices per product type would reveal company confidential data. With regard to SG&A costs of the sampled producers, such data, as provided by the cooperating Union producers and verified by the Commission, was by nature confidential and therefore cannot be disclosed in the light of Article 19 of the basic Regulation.

• (14) After final disclosure, the Chinese exporting producers FSS and STSS reiterated their request to provide more details on the undercutting and underselling calculations, in particular they requested product type specific information with regard to Union industry sales volumes and sales prices and undercutting and underselling rates per product type. Within the limits of protection of confidential data submitted by other parties, additional disclosure was provided to the two requesting parties in the form of indexes or ranges. Subsequently, no further comments were received.

2. PRODUCT CONCERNED AND LIKE PRODUCT

2.1.   Claims regarding the product scope

• (15) After provisional and final disclosures, the user Marcegaglia Specialities S.p.A. (‘Marcegaglia’) reiterated its claim referred to in recital (39) of the provisional Regulation, which is to exclude black coils from the scope of the investigation. Marcegaglia recalled differences in surface roughness and surface finishing and distinctions in the aesthetic appearance between black and white coils. With reference to the last sentence of recital (44) of the provisional Regulation, Marcegaglia argued that with regard to interchangeability, black coils could not replace white coils for relevant industrial applications. On this point, Marcegaglia added that black coils did not withstand high pressure and corrosion requirements of white coils.

• (16) In addition, Marcegaglia claimed that any risk of circumvention, as referred to in recital (44) of the provisional Regulation, seemed remote since black and white coils target different categories of customers, thus are not in direct competition with each other and are directly recognisable, and the Commission could introduce specific TARIC codes for the two product codes to avoid any possible risk of circumvention.

• (17) With reference to recital (45) of the provisional Regulation, Marcegaglia requested the Commission to disclose the volumes of black coils that the Union industry sold to customers other than Marcegaglia. The Commission does not have information at product type level for the whole Union industry; it only has this information with regard to the sampled producers. In any event, sales information at product type level is by nature confidential within the meaning of Article 19(1) of the basic Regulation and therefore it cannot be disclosed.

• (18) In the same context, the Indonesian exporters ITSS and GCNS claimed that the Commission should use the Union industry’s profit margin concerning black coils only for the purpose of calculating a separate injury margin calculation, as Indonesian exports consisted almost exclusively of black coils, for which the profit margin was lower as black coils were semi-finished products.

• (19) With regard to the above claims, the Commission noted that the product under investigation has been defined under Section 2 of the Notice of initiation, based on the definition provided in the complaint. The complainant has identified the products which the concerned industry has produced and sold and whose imports from the countries concerned have been dumped and caused injury.

• (20) As concerns the claims for exclusion of black coils, in recitals (44) to (46) of the provisional Regulation the Commission had explained why such exclusion is not warranted.

• (21) Further to the reasoning in the provisional Regulation, during the investigation period the black coils free market sales accounted for [20 to 30] % ⁵ of the entire free market sales. Moreover, the exclusion of black coils from the scope of the investigation would jeopardize the entire ‘green’ circular business model of the Union industry, which is to produce the product concerned from stainless steel scrap for sale or for further processing into downstream products. Indeed, under such circumstances also the viability of the production of stainless steel white coils and further downstream products by the Union industry is likely to be fundamentally affected in a negative way as white coils would be increasingly produced in the Union from dumped black coils produced less environmentally-friendly in the countries concerned. In view of the rapid increase of dumped imports, such development would, in the medium to long-term, force the Union industry to shut down important production lines. These severe consequences would thus not remain limited to the production of black coils from stainless steel scrap, as users of white coils and also of further downstream products would continue to have the possibility to purchase these products with a significant dumped content. Therefore, fair conditions of competition on the Union’s SSHR market and its downstream markets would be dramatically reduced if black coils were to be excluded, to the detriment of the Union industry.

• (22) In addition, the Commission noted that it is its consistent case practice in trade defence investigations to divide a product under investigation into different models and types (product control numbers ‘PCNs’) to allow for a fair comparison for the determination of dumping and injury. The resulting PCNs usually distinguish models of different size and with different features but each of them is part of the product under investigation. In the current case, the finishing of SSHR is likewise identified by the second-last character of the PCN, i.e. B stands for black and W for white. Therefore, for the determination of undercutting, underselling and dumping, a fair comparison is ensured as black coils are not compared with white coils and vice versa.

• (23) Finally, the Commission noted that Union producers as well as exporting producers in the countries concerned have a vertically integrated business model that includes the production of both black and white coils. This means that any such producer has a choice as to whether to sell black or white coils to the free market.

• (24) Further to final disclosure, Marcegaglia reiterated the request to disclose the number of Union producers’ customers and the quantities of black coils sold by the Union industry to re-rollers other than Marcegaglia in 2018 and the investigation period. The Commission recalled that this information is by nature confidential. The Commission could however provide a meaningful summary, which is that during the investigation period [1-2] sampled Union producers sold to [2-4] customers [150 000 – 180 000] ⁶ tonnes of black coils.

• (25) Marcegaglia further claimed that the investigation had confirmed that, with the sole exception of Marcegaglia, there was virtually no free market in the Union for black coils, and it criticized the Commission for not drawing any conclusion from this crucial circumstance. This criticism was found groundless. The mere fact that Marcegaglia is the most important user of black coils on the Union market cannot be inferred to justify a special treatment with regard to black coils or an exclusion of black coils from the scope of the product concerned.

• (26) After final disclosure Marcegaglia also referred to recital (21) above and argued that the black coils imported by them were exclusively used as a raw material for the production of downstream products (SSCR, stainless steel tubes). Black coils were not used by Marcegaglia to produce white coils in order to be sold on the Union free market. In view of the above, it claimed that the relevance of the Commission’s assertion that, should black coils be excluded from the scope of the measures, white coils would be increasingly produced in the Union from dumped black coils produced less environmentally-friendly in the countries concerned was difficult to perceive.

• (27) This claim had to be rejected. Should no duties be imposed on black coils, Union producers are likely to get at least indirectly harmed on the downstream market where they compete with Marcegaglia. An increase in annealing and pickling capacity in the Union – a process which is needed to turn black coils into white – can then also be expected to take place, in particular by turning cheap imported black coils into white coils to the detriment of the Union industry, who invested significant resources to be fully-integrated. If the Union industry cannot compete any longer on that basis, it will be forced to turn to cheap and dumped imports and hence indeed abandon their integrated and more environmentally-friendly business model.

• (28) The claims aiming at excluding black coils from the scope of the investigation are therefore rejected.

• (29) Several parties reiterated the claim to exclude coils with a width exceeding 1 800 mm from the scope of the investigation. According to these parties, the width has an impact on the properties, such as the resistance to pressure.

• (30) For the reasons set out in recitals (47) and (48) of the provisional Regulation, these claims are rejected.

2.2.   Conclusion

• (31) In the absence of any other comments with respect to the product scope, the Commission confirmed the conclusions set out in recitals (39) to (46) of the provisional Regulation, as clarified in recitals (19) to (30) above.

3. DUMPING

3.1.   Indonesia

• (32) Following the provisional disclosure, the Commission received comments from the Indonesian exporting producers PT Indonesia Guang Ching Nickel and Stainless Steel Industry (‘GCNS’) and PT Indonesia Tsingshan Stainless Steel (‘ITSS’), and the complainant Eurofer (‘submission of 4 May 2020’) on the dumping findings with regard to the Indonesian exporting producers. In addition, Eurofer submitted comments concerning the dumping calculation for the Indonesian exporting producers on 7 February 2020 (‘submission of 7 February 2020’), which, due to the timing of the investigation, could not be addressed in the provisional Regulation.

• (33) All comments included in the submissions mentioned in recital (32) are addressed in this Regulation.

3.1.1.   Exporting producers

• (34) In the absence of comments concerning the description of the Indonesian exporting producers and their related suppliers established in the Indonesia Morowali Industrial Park (‘IMIP’), the Commission confirmed its conclusions set out in recitals (50) to (51) of the provisional Regulation.

3.1.2.   Application of Article 18 of the basic Regulation

• (35) The details concerning the reasons for the application of Article 18 of the basic Regulation were set out in recitals (52) to (63) of the provisional Regulation.

• (36) In its submission of 7 February 2020, Eurofer argued that all information provided by the Indonesian exporting producers should be disregarded since it could not be considered reliable in the absence of comprehensive disclosure of related companies and in the absence of cooperation of identified related companies active in the production and sale of the product concerned or in the supply of raw materials used in the production process.

• (37) In addition, Eurofer claimed that the Commission should not apply the provisions of Article 18(3) of the basic Regulation. In this respect, the complainant referred to previous jurisprudence of the Court of Justice of the European Union ⁷ and the World Trade Organisation’s (‘WTO’) Appellate Body ⁸.

• (38) These claims were rejected. The Commission considered that the exporting producers made a considerable effort to provide sufficient information on the relationship to their suppliers and customers. Nevertheless, due to the decisions of their ultimate shareholder and their minor shareholder links to certain related customers, their efforts were only partially successful. The Commission verified that suppliers and customers identified by the exporting producers as related, were indeed related. The uncertainty about the relationship to the suppliers and customers identified as unrelated was reflected in the dumping margin calculation, i.e. where warranted, the information provided by the exporting producers was adjusted or rejected and replaced by facts available.

3.1.3.   Normal value

• (39) The details of the calculation of the normal value were set out in recitals (64) to (85) of the provisional Regulation.

• (40) In the submission of 7 February 2020, Eurofer maintained that the Commission should have disregarded the purchase price of nickel ore reported by the Indonesian exporting producers. Eurofer reasoned that this would be justified by the fact that the exporting producers did not provide the Commission with the necessary elements to assess whether the nickel ore was purchased at an arm’s length price. In addition, it suggested that the Commission use as facts available the price of comparable nickel ore in the Philippines provided in the complaint or the nickel price quoted at the London Metal Exchange (‘LME’).

• (41) As explained in recitals (52) to (54), (60), (68), (80), and (82) to (85) of the provisional Regulation, the Commission indeed used facts available regarding the prices of nickel ore paid by the exporting producers. Nevertheless, in this case, the Commission considered that most aspects of those prices, except for the relationship with the supplier, were reliable. Therefore, when determining the arm’s length price of nickel ore, the Commission used the information provided by the exporting producers as facts available taking into account the most expensive purchase transactions, which were considered least likely to be affected by a potential relationship with the supplier. As established in Article 2(5) of the basic Regulation, where available, the Commission gives preference to the costs on the basis of records kept by the party under investigation, where those records reasonably reflect the costs associated with the production and sale of the product under investigation. Therefore, the Commission rejected the claim of Eurofer.

• (42) In the submission of 4 May 2020, Eurofer argued that the Commission failed to adjust the nickel ore costs under Articles 2(3) and 2(5) of the basic Regulation despite having found that Indonesia had maintained several mechanisms amounting to distortions on nickel ore as described in recital (342) of the provisional Regulation. In support of this claim, Eurofer referred to previous Commission’s practice ⁹ and WTO jurisprudence ¹⁰.

• (43) As explained in recital (41), the Commission replaced the price of nickel ore influenced by the relationship between the exporting producers and their suppliers under Articles 2(3) and 2(5) of the basic Regulation, i.e. determined the arm’s length purchase price. In addition, the Commission noted that the effect of the interventions by the GOI, as a separate issue, was addressed under Article 7(2a) of the basic Regulation as described in section 6 of the provisional and this Regulation.

• (44) Following final disclosure, Eurofer reiterated its views that the Commission should have adjusted the costs of nickel ore to counteract the government induced distortions. Eurofer, first, maintained that the replacement of nickel ore costs described in recitals (41) and (43) was not carried out under Article 2(5) of the basic Regulation but under Article 18 of the basic Regulation. Second, it submitted that the Commission had the right to replace costs affected by government induced distortions under Article 2(5) of the basic Regulation even in the context of the Union’s obligations stemming from its membership in the WTO. To this end, Eurofer argued that the most recent WTO jurisprudence ¹¹ did not exclude that under Article 2.2.1.1 of the WTO Anti-dumping agreement the costs of the exporting producer may be replaced in circumstances other that the two mentioned in the article.

• (45) First, the Commission recalls that the costs of nickel ore purchased from related suppliers were indeed replaced under Article 2(5) of the basic Regulation. Article 18 of the basic Regulation was only applied in respect of the methodology and transactions used to determine the arm’s length purchase price since the relationship between the exporting producers and their suppliers was not always clear. Second, as explained under section 6 of this Regulation, the Commission maintained its position that, in this case, it was appropriate to impose an anti-dumping duty at the level of the injury margin where it was lower than the dumping margin. In this respect, it must be noted that the injury margin determined for the Indonesian exporting producers was indeed lower than their weighted average dumping margin. Therefore, any further increase of the nickel ore costs would only further increase the dumping margin and thus be without effect on the level of the measures. Consequently, the Commission found that the claim by Eurofer as described in recital (44) became moot.

• (46) With regard to the methodology for the determination of the arm’s length price of nickel ore, the exporting producers welcomed that the Commission based the determination of the arm’s length price on the actual data provided by the companies. They, however, argued that the method applied by the Commission was disproportionate and led to overstated arm’s length costs of nickel ore. In particular, the exporting producers pointed out that purchase prices varied considerably for nickel ore within a difference in nickel content of 0,01 percentage points. As a consequence, the exporting producers suggested that the Commission should take into account the nickel content at two decimal places instead of using only one decimal place for the cost adjustment.

• (47) The Commission examined the claim and found that, based on the information provided by GCNS, the only company in the group that provided a full set of information, a difference in nickel content of 0,01 percentage points was indeed reflected in the purchase price of nickel ore. The Commission, therefore, accepted the claim and adapted the arm’s length costs of nickel ore accordingly.

• (48) The exporting producers further claimed that the Commission should have established the arm’s length purchase price of nickel ore of the related supplier PT Tsingshan Steel Indonesia (‘TSI’) on the basis of the purchases from unrelated suppliers of nickel ore.

• (49) The Commission recalled that the reason for rejecting the purchase price of nickel ore of the exporting producers was the lack of meaningful information on the world-wide structure of the group. The fact that the Commission was not able to establish which suppliers of the exporting producers were actually unrelated equally applied to the suppliers of TSI.

• (50) Nevertheless, following the change in the arm’s length price calculated for GCNS as explained in recitals (46) and (47), the Commission also adapted the arm’s length purchase price of TSI by applying to the benchmark of GCNS the ratio between the average actual price paid by TSI and by GCNS. This was also in line with the technical comments of the exporting producers concerning an alternative determination of the arm’s length purchase price of nickel ore for TSI.

• (51) In addition, when examining the comments by interested parties, the Commission found that at the provisional stage, it omitted to take into account certain costs of production reported by ITSS in the calculation of the normal value.

• (52) After correcting this omission, none of the domestic sales by ITSS of the like product were profitable. Therefore, the Commission constructed the normal value by adding the following to the average cost of production of the like product of ITSS during the investigation period:

• (a) the weighted average SG&A expenses incurred by GCNS on domestic sales of the like product, in the ordinary course of trade, during the investigation period; and

• (b) the weighted average profit realised by GCNS on domestic sales of the like product, in the ordinary course of trade, during the investigation period.

• (53) In respect of the determination of the normal value for ITSS, Eurofer, in its submission of 4 May 2020, argued that the Commission should not have given a conclusion on the representativity and profitability of domestic sales to independent customers in the absence of a comprehensive world-wide structure of the group.

• (54) The Commission noted that in view of the corrections to the determination of the normal value for ITSS described in recital (52), its previous conclusions and subsequently the comments by Eurofer became moot.

• (55) In line with the accepted claims and clarifications provided in recitals (39) to (50) above, the Commission confirmed the conclusions set out in recitals (64) to (72) and (80) to (85) of the provisional Regulation. The aspects of the normal value determination for ITSS described in recitals (73) to (79) of the provisional Regulation were adapted as described in recitals (51) to (54).

3.1.4.   Export price

• (56) The details for the calculation of the export price were set out in recitals (86) and (87) of the provisional Regulation.

• (57) In its submission of 7 February 2020, Eurofer argued that the Commission should not use the import prices by the major customer of the Indonesian exporting producers in the Union as facts available. In particular, the complainant argued that the exporting producers had engaged in a managed non-cooperation and that they had orchestrated facts available that would result in a more favourable dumping determination. Eurofer supported the latter allegation by the sequence of submissions by the customer in question. In particular, Eurofer pointed out that the customer submitted detailed information on prices of import transactions from Indonesia (submission of 4 November 2019, reference number t19.005668) only after the Commission sent its second deficiency letter to the Indonesian exporting producers on 23 October 2019 (reference number t19.005465). Consequently, Eurofer concluded that the Indonesian exporting producers requested the customer in the Union to provide the information as a substitute to their own export sales listing.

• (58) The complainant reiterated its claims described in recital (57) in its submission of 4 May 2020.

• (59) In this respect, it is important to clarify that the customer in the Union cooperated with the investigation from its very beginning. On 18 October 2019, the Commission enquired about the willingness of the company to submit additional information on imports of the product under investigation originating in Indonesia per transaction and product type (reference number t20.003960). The company submitted the requested information on 25 October 2019 (reference number t19.005556). The submission of 4 November 2019 referred to by Eurofer was submitted by the customer in the Union as a clarification following additional questions by the Commission.

• (60) In addition, the Commission recalled that the Indonesian exporting producers provided a full listing of their export sales to the Union. The Commission was able to verify inter alia the product types, quantities, values and destination of those sales. However, since the related traders in third countries engaged in the export sales did not cooperate with the investigation, the Commission could not establish the export price based on their resales price to the first independent customer. In the present case, the Commission decided to use the information already available on the file supplemented by detailed information per transaction and product type submitted by the Union customer.

• (61) In addition, the Commission compared those prices with official trade statistics by Eurostat and found that the unit import prices determined from all available sources were very similar. Thus, the Commission considered the information provided by the major customer in the Union suitable to be used as facts available.

• (62) The claims by Eurofer described in recitals (57) and (58) are, therefore, rejected.

• (63) In the absence of any additional comments concerning export price other than those already covered by recitals (56) to (62) above, recitals (86) to (87) of the provisional Regulation were confirmed.

3.1.5.   Comparison

• (64) The details concerning the comparison of the normal value and the export price were set out in recitals (88) to (89) of the provisional Regulation.

• (65) In the submission of 4 May 2020, Eurofer argued that the Commission had not drawn appropriate conclusions from the non-cooperation of the related traders involved in the export sales of the Indonesian exporting producers as far as it concerned the determination of the export price for comparison. In particular, Eurofer argued that the Commission should not have taken at face value the information provided by the exporting producers concerning transport, handling and loading, and other allowances (such as commissions, credit costs, banking costs, currency conversion).

• (66) Eurofer, further, doubted the deductions from the export price of SG&A and profit of the related traders involved in export sales as their identity and relationship with the exporting producers could not be verified.

• (67) Finally, Eurofer submitted that the Commission should have disclosed the identity of the related trader whose publicly available financial statements it used to determine the SG&A to be deducted from the export price.

• (68) The Commission considered that it did not treat the Indonesian exporting producers more favourably when it used facts available either from public sources or provided by the exporting producers themselves. The Commission recalled that to determine the export price for the purpose of comparison with the normal value, i.e. at ex-works level, it deducted from the export price at CIF level, established on the basis of the import prices of the customer in the Union, the commission of the unrelated trader involved in the export sales, the SG&A of several related traders involved in the export sales, profit of an unrelated importer, ocean freight and insurance, handling and loading in Indonesia, transport in Indonesia, and credit costs for each export transaction individually.

• (69) In this respect, the Commission deducted, for each transaction, the SG&A of all related traders involved in export sales although the exporting producers claimed that not all of them were involved in each of the sales channels. Moreover, the Commission deducted credit costs based on the Indonesian interest rates and the average duration of the trade credit received by the customer in the Union although the Indonesian exporting producers did not provide any trade credit when exporting to the Union. In this case, the Commission considered that the export credit might have been provided by one of the related traders involved in the export sales.

• (70) With regard to the identity of the related trader whose financial statement were used to determine the SG&A, it must be noted that the exporting producers considered their identity sensitive information. Therefore, the Commission did not disclose this information in the provisional Regulation.

• (71) For the reasons explained in recitals (68) to (70), the Commission rejected the claim of Eurofer.

• (72) The exporting producers claimed that the adjustment to the export price for the SG&A of related traders located outside the Union were unjustified or alternatively, that that adjustment should have been calculated in a different way. The Commission accepted the proposed alternative calculation of the adjustment in question and adapted the export price accordingly. Since the adjustment concerned confidential business data of the exporting producers, details were disclosed to the exporting producers in a company specific definitive disclosure.

• (73) In the absence of any additional comments concerning comparison of normal value to export price, recitals (87) to (88) of the provisional Regulation as far as it concerned the adjustments to the normal value were confirmed.

3.1.6.   Dumping margins

• (74) As detailed in recitals (32) to (73), the Commission took into account interested parties’ comments and recalculated the dumping margins for the Indonesian exporting producers.

• (75) The definitive dumping margins, expressed as a percentage of the CIF Union frontier price, duty unpaid, are as follows:

Company	Dumping margin (%)
PT Indonesia Guang Ching Nickel and Stainless Steel Industry PT Indonesia Tsingshan Stainless Steel	17,7
All other companies	17,7

• (76) The calculations of the individual dumping margins after corrections and adjustments made following the comments of the interested parties after provisional disclosure were disclosed to the Indonesian exporting producers.

3.2.   The PRC

3.2.1.   Preliminary remarks

• (77) As explained in recitals (95) to (99) of the provisional Regulation, the Commission decided to apply Article 18 of the basic Regulation with respect to one of the sampled Chinese exporting producers – Zhenshi Group Eastern Special Steel Co., Ltd (‘Zhenshi’). The Commission was not able to reconcile several figures that were crucial for the calculation of the company’s individual dumping margin, such as production volumes per product type, energy inputs consumption, by-products allocation and manufacturing overheads with the company’s audited accounts, cost management accounts and data in the internal IT applications used.

• (78) Therefore, the Commission found that the information provided was unreliable and decided to apply Article 18(1) of the basic Regulation to complete the determination of the exporting producer’s dumping and injury margins. This resulted in the imposition of the residual margins for the company in question at provisional stage.

• (79) In its submission after provisional disclosure, Zhenshi commented again on the Commission’s decision to apply Article 18 of the basic Regulation and to impose the residual duty. The company claimed that regardless of their failure to provide proper data for the calculation of the normal value, the Commission had at its disposal all the verified export sales data needed to calculate an individual injury margin. In this regard, the company requested the Commission to resort to Article 18(3) of the basic Regulation since ‘whereas the information submitted by the company was not ideal in all respects, any deficiency is not such as to cause undue difficulty in arriving at a reasonably accurate finding in this case’.

• (80) After examination of this claim, the Commission decided, in accordance with Article 18(3) of the basic Regulation, to calculate both an individual dumping and injury margin for Zhenshi on the basis of facts available.

• (81) As far as the dumping margin is concerned, the verified export price data of the company was used to establish the export price. For each product type exported by Zhenshi, the normal value used for the calculation was taken from one of the other two cooperating Chinese exporting producers. Where the normal value for this particular product type existed in both companies in question, the higher of the two figures was used. This was found to be a reasonable methodology given that Zhenshi has not provided sufficient data for the calculation of their normal value. Where, for a particular product type, the normal value did not exist in any of the two companies, the normal value used was that of the product type most closely resembling the product type exported by Zhenshi. The normal values were then compared, per product type, with export prices adjusted to ex-works as provided by Zhenshi and verified during the verification visit.

• (82) As a result of the above calculation, the individual dumping margin for Zhenshi, expressed as the percentage of the company’s own CIF value, was set at a level of 71,7 %.

• (83) In accordance with Article 9(6), second paragraph, of the basic Regulation, since the dumping margin of the company was based on facts available, it was not used for the calculation of weighted average dumping margin for the non-sampled cooperating companies.

• (84) The Commission’s decision to calculate an individual dumping margin for Zhenshi was contested by Eurofer in its submission after final disclosure. The complainant objected the change in the Commission’s position at final disclosure, pointing out that the Chinese exporter only reiterated its previous arguments and did not provide any new information. According to the complainant, the Commission clearly concluded at provisional stage that it was not possible to calculate an individual dumping margin for Zhenshi as several key figures could not be reconciled with the audited accounts, management accounts and IT databases of the company.

• (85) Eurofer further argued that a calculation of the dumping margin should be based on the company’s own data, contrary to the methodology applied by the Commission at the definitive stage.

• (86) Finally, the complainant raised doubts on how the Commission could have accepted Zhenshi’s export prices, when the questionnaire response could not be reconciled with the audited accounts.

• (87) First, the Commission still upholds its conclusion that no calculation of normal value was possible on the basis of data provided by Zhenshi. The reconciliation problem of the figures concerned production, stocks, costs and input consumption figures only at the level of allocation to the different product types, thus making the calculation of normal value impossible. However Zhenshi provided, and the Commission could verify, all the elements necessary to establish the export price.

• (88) Second, the company came after provisional disclosure with a new valid argument – since the Commission admitted that it could verify the export sales data, an individual injury margin could be calculated. The Commission agreed with this argument and subsequently calculated an individual injury margin and, consequently, a dumping margin in accordance with Article 18(3) of the basic Regulation.

• (89) Contrary to the statement of Eurofer, it is not unusual that the normal value of a company is not based on the data submitted by the exporting producer. The Commission may use facts available, including data from other sources, if the information provided, for instance, was unreliable.

• (90) Thus, following Article 18(3) of the basic Regulation and as it is clear from recital (81), the normal value of Zhenshi is based upon the facts available, which is an objective assessment. In this specific case, this assessment has led to an individual dumping margin in the medium range of the Chinese companies and to the lowest injury margin, because of the level of the company’s export prices.

• (91) Finally, the Commission did not find any ground to reject the company sales and turnover data or to reject certain export transactions from the calculation. Despite problems with the allocation of costs and inputs to the produced product types, the export sales and turnover data could be verified and reconciled with the company’s audited accounts and also with objective external documents like VAT statements, custom declarations, actual transport and insurance documents.

• (92) For the reasons outlined above in recitals (87) to (91), the arguments of the complainant against the application of Article 18(3) of the basic Regulation with regard to Zhenshi were rejected.

3.2.2.   Normal value

3.2.2.1.   Existence of significant distortions

• (93) With regard to the exporting producers in the PRC, the Commission constructed the normal value in the country of origin exclusively on the basis of costs of production and sale reflecting undistorted prices or benchmarks in an appropriate representative country, in accordance with Article 2(6a)(a) of the basic Regulation.

• (94) Recitals (103) to (157) of the provisional Regulation detailed the examination of all the available evidence relating to the PRC’s intervention in its economy in general as well as in the steel sector, showing that prices and costs of the product concerned including the costs of raw materials, energy and labour, are not the result of free market forces because they are affected by substantial government intervention within the meaning of Article 2(6a)(b) of the basic Regulation.

• (95) On that basis, and in the absence of any cooperation from the GOC in the investigation, the Commission provisionally concluded that it was not appropriate to use domestic prices and costs to establish normal value.

• (96) Following provisional disclosure, comments concerning the application of the Article 2(6a) of the basic Regulation were received from the GOC and the Chinese exporting producer FSS.

• (97) Both interested parties claimed that Article 2(6a) of the basic Regulation is inconsistent with WTO rules, namely with GATT Article VI.1(b) and Article 2.2 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (‘ADA’) and that the basic Regulation introduces a concept of ‘significant distortions’ which is not listed in Article 2.2 of ADA as one of circumstances to construct normal value. Furthermore, by referring to costs of production and sale in a representative country, or international prices, costs or benchmarks, the normal value constructed on the basis of Article 2(6a) of the basic Regulation allegedly goes beyond the scope of GATT Article VI.1(b) and Article 2.2 of the ADA which require using costs in the country of origin.

• (98) For the purpose of this investigation the Commission has concluded in recital (95) that it is appropriate to apply Article 2(6a) of the basic Regulation. The Commission did not agree with the submission of the interested parties that the Commission must not apply Article 2(6a). On the contrary, the Commission considered that Article 2(6a) is applicable and must be applied in the circumstances of this case. In addition, the Commission considered that this provision is consistent with the European Union’s WTO obligations. It is the Commission’s view that, as clarified in DS473 EU-Biodiesel (Argentina), the provisions of the basic Regulation that apply generally with respect to all WTO Members, in particular Article 2(5), second subparagraph of the basic Regulation, permit the use of data from a third country, duly adjusted when such adjustment is necessary and substantiated.

• (99) Additionally, the GOC claimed that the Commission Staff Working Document on Significant Distortions in the Economy of the People’s Republic of China for the purposes of Trade Defence Investigations ¹² cannot be qualified as the ‘report’ which according to the Article 2(6a) of the basic Regulation should be ‘produced, made public and regularly updated’. The GOC also claimed that the document is misrepresentative and severely deviates from the facts.

• (100) Furthermore, the GOC made the observation that a staff working document of that kind was issued only with regard to China and no such market evaluation is done for other countries including the representative country in the investigation or Member States of the European Union. According to the GOC this has raised concerns about the principles of Most Favoured Nation (‘MFN’) and National Treatment (‘NT’).

• (101) In reply to these claims, the Commission notes that the report was made publicly available since December 2017 so that any interested party would have ample opportunity to rebut, supplement or comment on it and the evidence on which it is based. The GOC has refrained from providing any such rebuttal or comment on the substance and evidence contained in the report ever since its release in December 2017. The GOC has also failed to provide evidence that the report is outdated. In any event, the Commission notes in particular that the main policy documents and evidence contained in the report, including namely the relevant five-year plans and legislation applicable to the product concerned during the IP, are still relevant. Regarding the concerns about discrimination, the Commission recalls that, as provided for by Article 2(6a)(c) of the basic Regulation, such a report shall be produced for any country only where the Commission has well-founded indications of the possible existence of significant distortions in a certain country or sector in that country. Upon approval of the new provisions of Article 2(6a) of the basic Regulation in December 2017, the Commission had such indications of significant distortions for the PRC. The Commission is considering similar reports about other countries. Therefore, the Commission rejected these claims.

• (102) Following final disclosure, the GOC reiterated its claims with regard to the status of the Commission Staff Working Document referred to in recital (99), the discriminatory treatment of China and an alleged violation of the MFN and NT clauses and the inconsistency of Article 2(6a) of the basic Regulation with Article 2.2 of the ADA. However, no new arguments or evidence were presented which could change the Commission’s provisional rejection of these claims or the conclusions in recital (101) above.

• (103) In the same submission, the GOC claimed that the report was released as a staff working document, and there was no evidence or sign indicating that the document was approved or endorsed by the Commission at or after the publication. Without the formal approval or endorsement from the Commission and made public as a staff working document, there are serious doubts regarding whether such document can be regarded as the official position of the Commission and whether its legal status meets the requirement of Basic Regulation 2(6a) of the Commission making, publishing and updating reports.

• (104) The report is a fact-based technical document used only in the context of trade defence investigations. It is therefore issued as a Commission Staff Working document as it is purely descriptive and does not express any political views, preferences or judgements. That does not affect its content, namely the sources of information concerning the existence of significant distortions in the Chinese economy relevant for the purpose of the application of Article 2(6a)(c) of the basic Regulation. In this investigation, the report, including the evidence contained therein, is part of the evidence on file justifying the application of Article 2(6a). The GOC has not provided any evidence that the information in the report is not valid or inapplicable for this investigation. In any event the Commission recalls that the existence of a country report is not a necessary condition for the application of Article 2(6a) as Article 2(6a)(c) states that, where appropriate for the effective application of this Regulation, the Commission shall produce, make public and regularly update a report. What counts for the application of the methodology under Article 2(6a) of the basic Regulation are the findings that the significant distortions are present in the case at hand, as is the case in this investigation. Therefore this claim was rejected.

• (105) In the same submission, the GOC raised the issue of an alleged inconsistency of Article 2(6a) of the basic Regulation with Article 2.2.1.1 of the ADA as the Commission rejected the costs of the Chinese companies without determining that their records were kept in accordance with the generally accepted accounting principles of China, or whether the records reasonably reflected the costs associated with the production and sale of the product under consideration.

• (106) As explained above in recitals (93) to (98), the Commission concluded that it is appropriate to apply Article 2(6a) of the basic Regulation given the existence of significant distortions within the meaning of point (b) of that Article. The Chinese companies were given the opportunity to comment but provided no relevant comments. Therefore whether the Chinese companies records were kept in accordance with the generally accepted accounting principles of China, or whether the records reasonably reflected the costs associated with the production and sale of the product under consideration, does not affect the conclusion concerning the application of the methodology under Article 2(6a) of the basic Regulation. Therefore this claim was rejected.

• (107) Finally, the GOC claimed that the investigation was conducted on the assumption that there were significant distortions in the Chinese market and sector concerned and the interested parties had no opportunity to defend their interests and to prove that their records reasonably reflected the costs associated with the production and sale of the product under investigation.

• (108) Interested parties were invited to comment on alleged market distortions in the PRC and the potential application of Article 2(6a) of the basic Regulation. Some of the Chinese exporting producers did comment on the alleged market distortions in their questionnaire replies and separate submissions. Their comments in this regard were addressed in recitals (111) to (113) of the provisional Regulation and in recitals (98) to (101) above. The GOC did not use the opportunity to comment on the alleged market distortions within the time limit provided for in section 5.3.2 of the Notice of initiation ¹³ and did not reply to the questionnaire with specific questions on the existence of significant distortions in the PRC, sent on 12 August 2019. Therefore, the Commission rejected this claim.

• (109) In the absence of any further comments with respect to the application of the Article 2(6a)(b) of the basic Regulation, the Commission confirmed recitals (103) to (159) of the provisional Regulation.

3.2.2.2.   Representative country

• (110) As explained in recitals (160) to (178) of the provisional Regulation, the Commission provisionally chose Brazil as an appropriate representative country in this procedure, meeting all the criteria laid down in Article 2(6a)(a), first indent of the basic Regulation.

• (111) After provisional disclosure, the user Marcegaglia commented on the choice of the representative country. It claimed that Brazil is not an appropriate representative country as there is only one big producer of the product under investigation which is vertically integrated and driving the market, as it controls the whole supply chain, from the production of slabs to the distribution of downstream products. Furthermore, the user claimed that the Brazilian stainless steel flat products market is protected by several anti-dumping measures.

• (112) The Commission disclosed its analysis on the choice of representative country in two consecutive notes ¹⁴. These notes informed interested parties on the criteria used in the choice of the representative country and possible alternatives. The interested parties were encouraged to comment on the Commission’s choice and to bring forward their own proposal of most appropriate representative country. Marcegaglia did not come forward with any submission in this regard.

• (113) Nevertheless, the alleged dominant position of some companies or the existence of anti-dumping measures on the domestic market of the representative country with regard to the sector of the product under investigation is meaningless in the choice of a representative country. The Commission used for the construction of the benchmarks the Brazilian import prices for the raw materials, auxiliary materials and energy inputs – including factors of production used to produce slabs or to produce even further upstream inputs such as metallurgical coke, sinter or molten iron. Those inputs are used by many sectors in the representative country and thus the alleged limited internal competition on the stainless steel flat products market or its protection by anti-dumping measures cannot affect significantly the average import price of the inputs in question.

• (114) Marcegaglia pointed out also that the producer in the representative country is related to one of the complainants.

• (115) Indeed, the producer in Brazil, Aperam Inox America do Sul S.A., is related to the sampled Union producer Aperam Stainless Belgium. However, the Commission did not find any evidence that this relationship had a distortive effect on the SG&A and profit of the Brazilian company.

• (116) Taking into account the above, the claim of Marcegaglia was rejected and recitals (160) to (178) of the provisional Regulation are confirmed.

3.2.2.3.   Sources used to establish undistorted costs

• (117) Sources used by the Commission to establish the undistorted costs of factors of production in the calculation of the direct manufacturing costs were listed in recitals (179) to (183) of the provisional Regulation.

• (118) In this regard the complainant submitted a claim concerning the use of the International Labour Organisation (‘ILO’) statistics for the establishment of an undistorted labour cost. Eurofer claimed that since labour costs are much higher in the Brazilian steel industry than in the manufacturing sector as a whole, the Commission should rely on the publicly available statistics published by the Brazilian steel association. The complainant submitted these statistics.

• (119) The Commission analysed the statistics provided in support of this claim. The report of the Brazil Steel Institute, which provides information on total salaries, welfare expenses and total employment of the sector, submitted by Eurofer in support of its claim, differentiates total registered workforce, actually active workforce and sub-contracted workforce. Since the report only has raw figures, without description of the methodology, it is not clear how the total ‘pay-roll’ and welfare expense figures can be linked with the number of employees. For sub-contracted employees, there is no information on the level of social benefits and average working hours. Furthermore, the average labour cost for the steel sector, as calculated by Eurofer in its submission, is almost four times higher than the labour cost calculated provisionally by the Commission on the basis of the official ILO statistics concerning the manufacturing sector in Brazil. Even with the most conservative approach and taking into account the total number of employees, the statistics of the Brazilian steel association would indicate a per hour salary for the steel sector which is on average almost 20 % higher than in the financial sector and 50 % higher than in the IT sector in Brazil, compared to the figures provided by the official ILO statistics. Therefore, since the figures provided by Eurofer could not be used as a basis for an estimated labour cost per hour, and without knowing the methodology which stands behind them, the Commission found it to be a less reliable source than the ILO statistics for the calculation of the labour cost.

• (120) Taking into account the above, the claim of Eurofer was rejected and recitals (179) to (183) of the provisional Regulation were confirmed.

3.2.2.4.   Undistorted costs and benchmarks

• (121) A list of the factors of production used for the establishment of the undistorted direct costs of manufacturing, their undistorted value, and the methodology of their calculation were provided in recitals (185) to (200) of the provisional Regulation.

• (122) After provisional disclosure two Chinese exporting producers – FSS and STSS – submitted several claims with regard to the above-mentioned recitals.

• (123) Both interested parties claimed that for several factors of production the undistorted value of the benchmarks is too high, which may result from using too general Brazilian customs codes and thus comparing not the same input or comparing a very small Brazilian import volume with a much larger volume of the input consumed by the Chinese producers.

• (124) Interested parties were informed by the Note of 10 October on the customs codes the Commission intended to use as the benchmarks for the undistorted values for all the factors of production. The interested parties had also access to the corresponding representative country import volumes and values as the extraction from the Brazilian customs statistics were attached to the note. No comments were received at that stage.

• (125) Furthermore, all the factors of production were discussed in detail during the verification visits in the companies in question. This included a discussion on the exact composition of a given input and the proposed HS code, corrected were applicable in agreement with the company.

• (126) Finally, the Commission did not compare the volumes of imports to the representative country with the volumes purchased and consumed by the Chinese exporting producers for the specific inputs. Volumes imported to Brazil could be smaller but were still considered representative.

• (127) Taking into account the above, the claims concerning the benchmarks were rejected, except for two factors of production, where after further analysis the Commission indeed agreed that the imported volumes might be too negligible to be representative.

• (128) For iron ore the Commission decided to revert to an international benchmark based on the average IP price quotation for iron ore by Fast Markets. For oxygen, taking into account the negligible share of this input in the costs of manufacturing, the Commission decided to move its cost to the manufacturing overheads. The detailed calculation of the new iron ore benchmark and the updated list of factors of production moved to overheads are listed in the company-specific final disclosures.

• (129) Both interested parties further claimed that the undistorted costs did not reflect the costs in China. The companies claimed that in principle the international freight, insurance and custom duties should not be added to the benchmark constructed for the inputs which were purchased domestically by the Chinese producers.

• (130) FSS further claimed that even if freight and insurance are added it would be illogical to base the adjustment on the figures for freight and insurance obtained from the Chinese exporters, as those refer to exports from China to the Union, while an adjustment should be done for the FOB price on the Brazilian border to the producer’s premises.

• (131) STSS further challenged the actual figure used for the adjustment of domestic transport costs and provided an alternative calculation based on the company’s actual data.

• (132) Finally, STSS challenged the exclusion of the Chinese export data from the three benchmarks which were based on export statistics instead of import statistics, i.e. the benchmarks for ferro-niobium, molten iron and stainless steel slabs.

• (133) The construction of the undistorted costs and benchmarks aims at reflecting the situation where the inputs in question are delivered at the producer’s premises. Since the basis for the construction of a benchmark is the import price at the border of the representative country, its actual source for a producer in China is irrelevant. As in the case of Brazil, GTA reports import prices at FOB level, international freight and insurance have to be added in order to arrive at CIF level. Further, custom duties and domestic transport costs have to be added to arrive at the price at the producer’s premises. The main claim as to the methodology of constructing benchmarks was therefore rejected.

• (134) However, the Commission took note of the specific claim of FSS concerning the methodology of the adjustment for international freight and insurance and decided to revert to the OECD Database on International Transport and Insurance Costs ¹⁵ in order to calculate the average FOB to CIF margin for Brazil for all the inputs in question. Consequently, to get to the CIF level the FOB import values in Brazil were increased by 8,58 %. The details of this calculation and a description of the methodology are provided to the interested parties in the specific final disclosure.

• (135) Following final disclosure, FSS pointed out that at provisional disclosure it had contested the Commission’s methodology on the construction of benchmarks, where an adjustment was made to come to the landed cost in the representative country. The company claimed that the Commission had misunderstood its claim at provisional stage by only correcting the calculation of the international transport and insurance costs.

• (136) The Commission did understand the main claim of the company and addressed it in recital (133) above. As explained in that recital, it is not relevant in the construction of the benchmarks whether the Chinese producer actually purchased domestically or imported the given inputs. To bring the cost of the input to the premises of a company within the representative country, an adjustment of the CIF value on the border has to be made.

• (137) STSS’ claim concerning the calculation of domestic transport was rejected. However, due to the confidentiality of data a more detailed explanation is given in the company specific disclosure.

• (138) Finally, the exclusion of exports to the PRC from the three benchmarks established on the basis of export statistics from Brazil, Iran and South Korea, as described in recital (192) of the provisional Regulation, was necessary and justified. In accordance with Article 2(6a)(b) of the basic Regulation, the Commission had to establish undistorted benchmarks in order to construct the normal value. In this particular case it was not possible to use imports into the representative country, as no imports existed or benchmarks were considered not representative due to export restrictions or negligible quantities imported, the Commission decided to use export data. However, the Commission found it necessary to exclude exports to the PRC because there was no evidence that the distortions in the PRC did not affect also those prices. Indeed, when producers from third countries want to be competitive in the Chinese market, their pricing will reflect the conditions found in the Chinese domestic market.

• (139) An additional claim from STSS concerned the calculation methodology of the adjustment for revenues from by-products, which are not re-used in the production of the product under investigation. According to the company, these revenues should be calculated also with an undistorted benchmark and should be deducted directly from the cost of manufacturing instead of being deducted from the constructed normal value.

• (140) At provisional stage the Commission adjusted the normal value by deducting the undistorted value of certain by-products that were not re-used in the production of the product under investigation but sold by the company. In order to obtain this undistorted value the percentage of the by-product revenue for each product type on its cost of manufacturing was calculated. Later the same percentage was applied on the undistorted costs of manufacturing.

• (141) Following the comments of the interested party the Commission changed the methodology of this adjustment. In order to obtain the undistorted revenue per product type, the quantities of by-products reported by the company were multiplied by the Brazilian benchmark unit price of these materials. The undistorted revenue was deducted per product type from the constructed normal value. The Commission concluded that a negative adjustment for such by-products has to be done at this level rather than at the level of costs of manufacturing, as these by-products were sold and the revenues should normally also have covered sales costs and profit.

• (142) Following final disclosure, FSS observed that the benchmarks for the energy inputs like electricity, natural gas and water, which were based on Brazilian internal market tariffs, might include indirect taxes, which should have been deducted.

• (143) This claim was accepted with regard to natural gas. The relevant annex of the specific disclosure clearly indicated that the indirect tax (‘ICMS’) was included by the Commission in the calculation of the benchmark. The benchmark in question was recalculated and adjusted downwards from 3,23 CNY per cubic meter to 2,75 CNY per cubic meter. Subsequently, the dumping margin for FSS was revised. This adjustment did not have an impact on the individual dumping margins of STSS and Zhenshi. The dumping margin of the two cooperating non-sampled companies was adjusted accordingly.

• (144) With regard to electricity, the source database did not mention indirect taxes. The Commission considered thus that no indirect taxes were included in the tariff. Since FSS did not prove otherwise, this claim was found to be unsubstantiated. It is noted that no ICMS is charged for water.

• (145) In the absence of any further comments with respect to the calculation of the undistorted costs and benchmarks, the Commission confirmed recitals (179) to (183) of the provisional Regulation, with the corrections done as explained in recitals (127), (134), (137), (141) and (143) above.

• (146) Considering all the adjustments done after the claims submitted by the interested parties, the following factors of production, HS codes and undistorted normal values have been identified at the definitive stage:

Table 1