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

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

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) 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.

(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.

(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’).

(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.

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

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

(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.

(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.

(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.

(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.

(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.

(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.

(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.

(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).

(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.

(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.

(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.

(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.

(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.

(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.

(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.

(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.

(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.

(147) The construction of manufacturing overhead costs and the source of SG&A and profit used in the normal value calculation were described in recitals (201) and (202) of the provisional Regulation.

(148) Following provisional disclosure STSS claimed that by inclusion of certain factors of production into overheads, as described in recitals (194) and (201) of the provisional Regulation, the Commission inflated the manufacturing overheads and thus the final cost of production. Furthermore, the company pointed out that the Commission did not provide any evidence that these factors of production were distorted.

(149) The Commission rejected this claim. No separate proof of distortion is needed for the inputs which are moved to manufacturing overheads. In recitals (103) to (157) of the provisional Regulation, the Commission clearly explained why all costs of the product under investigation, including the costs of those inputs that were moved to manufacturing overheads are considered distorted. Also, as explained in recital (194) of the provisional Regulation, these inputs were negligible in terms of costs and the Commission moved them to manufacturing overheads because the sampled exporting producers were not able to determine the consumption volume in their records or no proper benchmark could be established in the representative country.

(150) After provisional disclosure, both FSS and STSS raised several claims with regard to the level of SG&A costs and profit used in the calculation of the normal value.

(151) FSS claimed that the Commission did not provide any legal or factual explanation that SG&A costs in China are distorted. However, as already explained in recital (149) above, no such separate evidence is needed for the particular types of costs, as the Commission clearly concluded that distortions exist with regard to all costs of the product under investigation.

(152) The company further claimed that the SG&A costs of the Brazilian producer of the product under investigation, used in the normal value calculation, should be reduced by the equity costs of the company and the financial costs of its subsidiaries.

(153) The Commission calculated SG&A costs and profit as a percentage of the Costs of Goods Sold on the basis of publicly available data, that is audited accounts of the Aperam Inox do Sul S.A. On the basis of the information available, it cannot be concluded that part of the financial costs is not linked to the product under investigation. FSS did not provided any evidence or indication that these costs would be overstated. Furthermore, it should be noted that the deduction of part of these financial costs reducing the SG&A costs would necessarily increase the profit accordingly. Consequently, the final result would not change.

(154) STSS pointed out that while certain labour costs of the Chinese exporting producers (e.g. R&D and Quality Control department labour costs) were moved to the costs of manufacturing, there was no evidence that such labour costs were not included in the SG&A of the representative country producer, which could have led to double counting of these costs in the construction of the normal value.

(155) SSTS however provided no evidence that such costs were included in the SG&A costs of the producer in the representative country. Therefore, the Commission upheld its approach in this regard.

(156) Finally, FSS invoked Article 2.2.2(iii) of ADA which states that the profit for the purpose of the construction of the normal value might be established by using ‘any other reasonable method, provided that the amount of profit so established shall not exceed the profit normally realized by the exporters or producers on sales of products of the same general category in the domestic market of the country of origin’. The company pointed out that the Commission failed to calculate such in-China cap for profit while applying for the calculation of normal value profit of the representative country company at the level of 7,65 %.

(157) In reply to this claim, the Commission recalled that the normal value was constructed on the basis of Article 2(6a)(a) of the basic Regulation because it determined, as explained in recitals (103) to (157) of the provisional Regulation, that it was not appropriate to use domestic prices and costs in the exporting country due to the existence of significant distortions in that country. All costs and prices, including profits, which by definition are affected by the underlying costs and prices in the domestic country, are therefore considered distorted. Article 2(6a)(a) of the basic Regulation establishes that the constructed normal value shall include an undistorted and reasonable amount for administrative, selling and general costs and for profits. As explained above in recital (98), the provisions in Article 2(6a) of the basic Regulation are fully in line with the EU’s international obligations, including all the relevant provisions of the WTO ADA. Therefore, this claim was rejected.

(158) In the absence of any further comments with respect to the manufacturing overheads, SG&A costs and profit, the Commission confirmed recitals (201) and (202) of the provisional Regulation

(159) In the absence of comments with regard to the calculation of the normal value, recitals (203) to (210) of the provisional Regulation are confirmed.

(160) In the absence of comments concerning the establishment of the export price, recitals (211) to (213) of the provisional Regulation are confirmed.

(161) The Commission compared the normal value and the export price of the Chinese sampled exporting producers on an ex-works basis as described in recitals (214) to (216) of the provisional Regulation.

(162) Following provisional disclosure, STSS challenged the fact that the Commission deducted certain freight related expenses from the export price, while these expenses were not deducted from the SG&A costs of the producer in the representative country.

(163) SSTS however provided no evidence that such expenses were included in the SG&A costs of the producer in the representative country. Therefore, this claim was rejected.

(164) To calculate the export price for STSS, the Commission carried out an adjustment pursuant to Article 2(10)(i) to those sales made via a related trader located in another country. Following provisional disclosure, the exporting producer contested this adjustment and claimed that the producer and its related trader located in a third country constitute a single economic entity, where the related trader carries out functions of an internal sales department. Accordingly, the exporting producer requested the Commission not to carry out this adjustment.

(165) The Commission recalled that under EU case law, a single economic entity exists where a producer entrusts tasks normally falling within the responsibilities of an internal sales department to a distribution company for its products which it controls economically (17). The Court of Justice has also established that ‘the EU institutions are required to take account of all factors relevant to the determination as to whether or not that distributor carries out the functions of an integrated sales department within that producer’ (18).

(166) Accordingly, the Commission analysed the evidence at its disposal and made the following findings. In the first place, the Commission noted that the company structure showed the existence of numerous sales companies within the group, including the related trader subject to the contested adjustment. In this vein, the Commission confirmed that there was more than one related company involved in the sales of the product under investigation to the Union. The Commission assessed the contracts between the exporting producer and the related trader in question and identified certain provisions governing the relations between the producer and the related trader that are difficult to reconcile with the notion that those companies form a single economic entity. (19)

(167) Moreover the Commission noted that it was another department, and not the related trader in question, which was involved in sales-related aspects. Also, the Articles of Association and business licence of the related trader in question included certain provisions of a nature that falls outside the scope of the tasks usually entrusted to an internal sales department (20). Furthermore, the negotiation process between the producer and the related trader described in the questionnaire reply, notably with regard to terms of sales (21), casted further serious doubts that they would form a single economic entity. Therefore, this claim was rejected.

(168) To ensure that the normal value was expressed at the same level of taxation as the export price, the normal value was adjusted upward by that part of VAT charged on exports of the product under investigation that was not refunded to the Chinese exporting producers. Following provisional disclosure, FSS and STSS contested this adjustment. The companies claimed that the adjustment is either not warranted at all, as the Commission is not using Chinese domestic prices as a normal value, or the adjustment should be done to actual costs of production rather than the undistorted costs.

(169) In this regard it is noted that the Commission adjusted the normal value in line with the Judgment of the General Court in Case T-423/09 (22). Therefore, these claims were rejected.

(170) In absence of further comments regarding the comparison, recitals (214) to (216) of the provisional Regulation are confirmed.

(171) As detailed in recitals (121) to (170) above, the Commission took into account some of the comments from STSS and FSS and recalculated the dumping margins for the companies in question.

(172) The dumping margin of the cooperating non-sampled Chinese companies, Xiangshui Defeng Metals Co., Ltd and Fujian Dingxin Technology Co., Ltd, being the weighted average between the two individual dumping margins for the sampled companies, was adjusted accordingly.

(173) The Commission considered the high level of cooperation of Chinese exporting producers, representing 92 % of the total Chinese exports of the product under investigation to the Union, appropriate to set the residual dumping margin applicable to all other (non-cooperating) exporting producers. Therefore, the Commission considered appropriate to set the dumping margin for ‘all other companies’ at a level corresponding to the highest individual dumping margin of the sampled Chinese companies, excluding the company which received Article 18, as explained in recitals (77) to (82).

(175) The calculations of individual dumping margins after corrections and adjustments made following the comments of the Chinese exporting producers after provisional disclosure were disclosed to the companies in question.

(176) The details for the calculation of the normal value are set out in recitals (227) to (237) of the provisional Regulation.

(177) In its comments to pre-disclosure and provisional disclosure, the Yusco group claimed that the Commission incorrectly dismissed its request to grant an adjustment for exchange rate difference in the calculation of the SG&A ratio and an adjustment for recycled scraps as cost deduction of the raw material cost. The Commission examined those claims.

(178) The repeated claim to adjust for exchange rate difference in the calculation of the SG&A expenses ratio was rejected because Yusco was not able to justify that these differences were related to the domestic sales. The claim was reiterated after final disclosure, but again without any further substantiation. However, in view of newly submitted arguments, which could be reconciled with information provided during the verification, the adjustment for recycled scraps, which concerned both Yusco and its related producer Tang Eng, was accepted. The revised cost of manufacturing was taken into account in the revised dumping calculation.

(179) In its comments on pre-disclosure and provisional disclosure, Walsin claimed that the Commission incorrectly dismissed its request to grant an adjustment for sales of waste consumables, an adjustment for raw material costs after physical inventory check and an adjustment for processing costs in its Taichung plant. Walsin also contested the Commission’s decision to disregard, for the normal value determination, the domestic sales to bonded factories and to seaports, intended for export. The Commission examined those claims.

(180) Concerning the claim to adjust normal value for sales of waste consumables, in view of clarifications submitted in this regard by Walsin, the Commission considered the claim well-founded and accepted it because Walsin demonstrated that these waste consumables could not be re-introduced into the production and were sold to customers.

(181) With regard to the claim that raw material cost should be adjusted after physical inventory check, the Commission assessed the additional information provided and decided to confirm its provisional decision to reject this adjustment claim because the company could not justify the origin of the inventory differences. Moreover, these differences were not registered in the cost accounting system, and this adjustment could not be matched with either the trial balance or the response to the questionnaire.

(182) Concerning the claim to adjust the processing costs in Taichung plant by deducting the estimated profit generated by Taichung plant, the Commission considered the claim unfounded. Walsin could not demonstrate that its internal invoicing for annealing and pickling processing costs covered only costs and did not include any profit margin and the adjustment claimed was not recorded in company cost accounting system.

(183) Finally, with regard to the claim to include the sales to bonded factories and to seaports in the normal value determination, the Commission rejected it. Indeed, the company itself considered these sales as indirect sales for export in its questionnaire reply and they were therefore not reported in the domestic sales transactions. After the provisional disclosure Walsin changed its opinion and claimed that these sales should be considered as intended for domestic consumption since it did not know if the products were eventually consumed domestically or exported. Absent any more concrete information on this point, the Commission could not determine, on the basis of the evidence provided, whether these sales were consumed domestically or exported. As provided by Article 2(2) of the basic Regulation, the wording ‘intended for domestic consumption’ is not based on a subjective intention of the seller or on the fact that the exporting producer does not have knowledge if the product is subsequently exported by the trader/bonded factory, but on an objective destination of the product, an objective fact which can be established at any point in time until the final destination is eventually reached and the goods are sold for the purpose of consumption in the domestic market. Therefore, the claim was rejected.

(184) No further claims were received therefore recitals (227) to (237) of the provisional Regulation were confirmed.

(185) In the absence of any comments regarding the export price, recitals (238) to (239) of the provisional Regulation were confirmed.

(186) In the absence of any comments regarding the comparison, recitals (238) to (239) of the provisional Regulation were confirmed.

(188) In the absence of any comments with respect to the definition of the Union industry and Union production, the Commission confirmed its conclusions set out in recitals (246) to (248) of the provisional Regulation.

(189) The Chinese exporting producer FSS claimed that the Union industry’s production volume was driven by captive demand and not by free market sales, which represented a mere fraction of the total production. According to FSS this was shown by the fact that Union industry’s production volumes increased from 2016 to 2017 despite the decrease of 94 000 tons in free market sales.

(190) The Chinese exporting producer STSS claimed, with regard to the relation between free and captive market, that under the market share assessment it should be considered that the market share of the Union industry was 62 % in the free market, but this segment only accounted for about 22 % of the total Union market. Thus in the remaining 78 % of the market, which was captive, the Union industry had a 100 % market share. Moreover, according to STSS, this had to be seen in connection with the only market share that conversely increased – that of Indonesia.

(191) These claims had to be rejected. As set out in recitals (251) and (252) of the provisional Regulation, only the free market sales of vertically integrated producers, such as the sampled Union producers, are in direct competition with imports. It is therefore the consistent case practice of the Commission not to consider captive production and sales in some injury indicators of such cases, since the captive market is shielded from imports. However, as products for both the captive and free markets are produced on the same production lines, the production and production capacity analysis should also include products destined for the captive market. Indeed, in a capital intensive sector such as steel, capacity utilisation rates should be maintained at their highest level in order to dilute fixed costs and keep production costs at their lowest levels. Moreover, market share evolutions of individual exporting countries should not be regarded in isolation, since in the current investigation the conditions for a cumulative assessment of imports from all countries concerned are met (see section 4.4 below).

(192) In the absence of any other comments with respect to the determination of the relevant Union market, the Commission confirmed its conclusions set out in recitals (249) to (255) of the provisional Regulation.

(193) In the absence of any comments with respect to the Union consumption, the Commission confirmed its conclusions set out in recitals (256) to (262) of the provisional Regulation.

(194) The Chinese exporting producer FSS claimed that the cumulation of imports from China, Indonesia and Taiwan was inconsistent. As the present anti-dumping investigation was conducted while a separate anti-subsidy investigation concerning the same product was also ongoing, the injury assessment should be the same for both cases. However, Taiwan was not among the countries concerned in the separate anti-subsidy investigation. Therefore, any cumulative assessment in the present anti-dumping investigation, including imports from Taiwan, would subsequently be in conflict with any cumulative assessment in that anti-subsidy investigation, where imports from China and Indonesia would be cumulated but imports from Taiwan not. Moreover, FSS submitted that the cumulation of imports from China and Indonesia was not warranted. Whereas Chinese imports declined, Indonesian imports increased, which allegedly showed that Chinese imports did not compete with Indonesian imports. In addition, in 2017, when Chinese imports were the highest in volume with a 21 % market share and Indonesian imports were absent from the market, the Union industry had its best year as evidenced by the sales and profitability data. These claims had to be rejected.

(195) First, there is no inconsistency in the fact that in the present investigation imports from three countries, i.e. China, Indonesia and Taiwan are assessed cumulatively whereas in the separate anti-subsidy investigation, imports from only two of these countries, namely China and Indonesia, are assessed cumulatively. Each case is assessed on its own merits. In both cases, the legal conditions for a cumulative assessment of imports are met.

(196) Second, with regard to the Commission’s decision to assess imports from the countries concerned cumulatively in the current anti-dumping investigation, it is recalled that imports from each of the three countries increased over the period considered. For the reasons set out in recital (269) of the provisional Regulation, even if the development of imports from China was different over the period considered than the development of imports from Indonesia, the conditions of a cumulative assessment in accordance with Article 3(4) of the basic Regulation are met.

(197) The Chinese exporting producer STSS claimed that the cumulation of imports from China, Indonesia and Taiwan was not warranted because different conditions of competition between China and Taiwan on the one hand, and Indonesia on the other hand, exist. Whereas Indonesia has direct access to nickel, one of the main raw materials needed to produce stainless steel, China and Taiwan had to rely on imports, which were less available than previously due to an Indonesian export ban. This claim had to be rejected. A similar access to raw materials is not amongst the conditions for a cumulative assessment as laid down in Article 3(4) of the basic Regulation. Where exporters in different countries may face different conditions for sourcing inputs (such as raw materials or human resources), they can still compete with each other for the same sales destinations on the output side. This is the case here, as illustrated by the fact that in the current case one important cooperating user imported significant volumes from China, Indonesia and Taiwan.

(198) The exporting producer STSS further claimed that both the prices of Union industry sales and the volumes of Chinese imports increased at the same time, i.e. in 2017. Similarly, there was no correlation between Chinese import volumes and sales volumes of the Union industry. The slight increase in Chinese imports over the period considered (+28 000 tons) could mathematically not have caused the more than four times higher decrease of sales of Union producers on the open market (– 116 000 tons). Moreover, in the investigation period Chinese imports accounted for only 4,6 % of the total Union consumption.

(199) These claims were rejected. As set out in recitals (263) to (270) of the provisional Regulation, Chinese imports should not be assessed in isolation but in cumulation with imports from Indonesia and Taiwan. Cumulated imports from the countries concerned increased over the period considered by 147 000 tons, which clearly exceeds the 116 000 tons loss by the Union industry over the same period. Moreover, the market share achieved by Chinese imports in the investigation period, as a result of the practiced injurious dumping, amounted to 18,3 %, i.e. not 4,6 %, which is the Chinese market share if the volume of the captive market would have been added to the Union market for this investigation.

(200) In the absence of any other comments with regard to imports from the countries concerned, the Commission confirmed all other conclusions set out in recitals (263) to (270) of the provisional Regulation.

(201) In the absence of any comments with regard to the volume and market share of imports from the countries concerned, the Commission confirmed all conclusions set out in recitals (271) to (277) of the provisional Regulation.

(202) In the absence of any comments, the Commission confirmed its conclusions set out in recitals (278) to (282) of the provisional Regulation.

(203) Further to table 7 of the provisional Regulation, the GOI claimed that the increase in production capacity by the Union industry showed that the industry was in excellent shape. The same claim was reiterated following final disclosure. The Commission noted that production capacity increased by 1 % over the period considered, which supports the conclusion that production capacity remained practically stable over the period considered (recital (284) of the provisional Regulation). The claim was therefore deemed unfounded.

(204) With reference to table 8 of the provisional Regulation, STSS pointed at the downturn in captive use and sales volumes of the Union producers between 2018 and the investigation period, which it attributed to the decrease in the disproportionately large captive market. This claim was rejected. The Commission noted that there is no connection between the volumes evolution in the free and captive markets, in particular as throughout the period considered the Union industry was operating with a spare production capacity of more than 30 %. Moreover, STSS’s allegation seems factually flawed because the evolution in the captive market was stable over the period considered (table 9 and recitals (290) to (292) of the provisional Regulation), whereas the Union industry lost important market share (9,3 percentage points) on the free market during the same period.

(205) The GOI noted, with reference to table 10 of the provisional Regulation, that the decrease in productivity was caused by an increase in employment. The same claim was reiterated following final disclosure. However, it cannot be deduced that such decrease in productivity, even if only caused by a slight increase in employment by 4 % over the period considered, was responsible for the injury suffered by the Union industry. The material injury suffered was shown by other indicators as set out in recitals (307) to (310) of the provisional Regulation. The Commission recalled that, in accordance with Article 3(5) of the basic Regulation, no any one or more of those factors can necessarily give decisive guidance.

(206) The GOI claimed, with reference to table 14 of the provisional Regulation, that the effect of the ‘captive sales’ made by the Union producers was absent in the profitability assessment. The same claim was reiterated following final disclosure. This claim was rejected. The Commission recalled that, in line with the consistent case practice, where an industry is engaged in production for free market sales and production for captive use, the latter are, for the sake of assessing several injury factors, excluded from the scope of the investigation. This was already duly explained in recitals (254) and (255) of the provisional Regulation.

(207) The GOI further claimed that the share of free market sales made by the Union industry was too small (20 % of total Union sales), as compared to captive consumption, to affect the overall situation of the Union industry and hence there was no injury. The same claim was reiterated following final disclosure. As already mentioned in recital (191) above, the Commission recalled that in line with its consistent case practice, where an industry is equally engaged in free market sales and captive use, the latter are, for the sake of assessing most of the injury factors, excluded from the scope of the investigation. For the following economic indicators relating to the Union industry, it was found that a meaningful analysis and evaluation had to focus on the situation prevailing on the free market: sales volume and sales prices on the Union market, market share and profitability. Where possible and justified, these findings were subsequently compared with the data for the captive market, in order to provide a full picture of the situation of the Union industry.

(208) In the absence of any other comments with respect to the macroeconomic indicators, the Commission confirmed its conclusions set out in recitals (283) to (296) of the provisional Regulation.

(209) The Chinese exporting producer FSS claimed that the Commission has based its finding on an end-to-end analysis without assessing the positive developments in the situation of the Union industry as regards sales prices up until 2018, i.e. over the largest part of the period considered, and by ignoring that the decline in sales occurred when the Union industry was in the most profitable situation. According to FSS, the Commission cannot base its injury findings on the 4 % decline in the sales prices of the Union industry between 2018 and the investigation period versus the 2 % decline in the costs during the same period. In other words, a finding of material injury cannot be sustained on the net 2 % price decline in an isolated period (the investigation period). In addition, so FSS invoked, from 2018 to the investigation period the Union industry was selling comfortably above its production cost. This claim had to be rejected. The Commission agreed that from 2016 to 2018 prices and costs developed in parallel, as shown by an increase by 22 % each, but this was no longer true between 2018 and the investigation period, when prices fell by 5 percentage points but costs only by 2 percentage points. The market of SSHR is very price-sensitive and the Union industry had, due to the further strong increase of low priced dumped imports, no choice but to not fully account for the increase in costs when setting its sales prices. This translated into a strong deterioration of its financial indicators, including a fall in profits from 5,1 % to 3,5 %, as shown in table 14 of the provisional Regulation.

(210) The Chinese exporting producer FSS claimed that the cost of production of the Union industry had the most significant increase between 2016 and 2017. In the same period, there was the highest increase in the volume of imports from the countries concerned and the price differential between these imports and the Union industry’s sales was around EUR 200 per ton, such as it was in the investigation period. Nevertheless, from 2016 to 2017 the Union industry was able to increase its sales prices by 19 % and pass on the full cost increase to its customers. This claim was rejected. From 2016 to 2017, not only the Union producers but also producers in the export countries increased their prices, notably by 21 % or EUR 316 per ton (see table 6 of the provisional Regulation). This shows that in a market environment characterised by at least stable demand, the Union producers could only partly reap the benefit of this trend because they were already under pressure from imports from the countries concerned that undercut the Union industry sales prices. Moreover, due to this pressure and to keep profitability levels, the Union industry lost a considerable market share to the benefit of imports from the countries concerned from 2016 to 2017.

(211) The Chinese exporting producers FSS and STSS claimed that, while in the investigation period the Union industry claimed to have significantly lower profits than in 2016, their investments were 57 % higher than in 2016. This point was already addressed in recital (306) of the provisional Regulation. The Commission recalled that the increased investment levels did not translate into corresponding capacity increases (see table 7 of the provisional Regulation). Subsequently, the investments merely aimed at retaining the existing capacities and making due replacements of necessary production assets.

(212) With reference to table 11 of the provisional Regulation, STSS claimed that the minor decrease in sales prices of the Union producers between 2018 and the investigation period would have to be seen in connection with a surge of low-priced imports from Indonesia. The Commission recalled that the conditions for a cumulative assessment of imports from all three countries concerned were met, and therefore imports from one country cannot be regarded in isolation from imports from the other countries concerned.